State v. Joseph

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STATE OF CONNECTICUT v. JOSE RONALD JOSEPH
(AC 38473)
Sheldon, Beach and Harper, Js.
Argued February 8—officially released June 27, 2017
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Comerford, J.)
Allison M. Near, assigned counsel, for the appel-
lant (defendant).
Matthew A. Weiner, assistant state’s attorney, with
whom, on the brief, were Richard J. Colangelo, Jr.,
state’s attorney, and Maureen Ornousky, senior assis-
tant state’s attorney, for the appellee (state).
Opinion
HARPER, J. The defendant, Jose Ronald Joseph,
appeals from the judgment of conviction, rendered after
a jury trial, of two counts of sexual assault in the first
degree in violation of General Statutes § 53a-70 (a) (2)
and two counts of risk of injury to a child in violation
of § 53-21 (a) (2). On appeal, the defendant claims that
the trial court (1) violated his statutory right under
General Statutes § 54-82m to a speedy trial, (2) violated
his sixth amendment right to a speedy trial, (3) violated
his right to procedural due process by not holding hear-
ings on his motions for a speedy trial, and (4) committed
plain error in providing a constancy of accusation
instruction to the jury. We affirm the judgment of the
trial court.
From the evidence adduced at trial, the jury reason-
ably could have found the following facts. The victim
was eight years old when the defendant began dating
her mother, E.1 E soon became pregnant with the defen-
dant’s child and the defendant moved into her home.
Although E worked two jobs and was ‘‘[a]lways working
overtime,’’ the defendant was unemployed. As a result,
the defendant served as the victim’s primary caregiver.
While the victim’s mother was at work, the defendant
began playing ‘‘games’’ with the victim, in which he
digitally penetrated her vagina. The victim testified that,
while playing ‘‘these games, [the defendant] would suck
on my ear. He would twirl his fingers in my belly button.
He would have me . . . sit on the couch with him with
the covers over [and] there would be excessive touching
in my private areas.’’ The defendant proceeded to touch
the victim in her ‘‘private areas’’ on a weekly basis.
That conduct continued after the birth of the defen-
dant’s daughter, A, who was the victim’s half-sister. On
one occasion, the victim encountered the defendant ‘‘on
the couch with my little sister underneath the covers.’’
When she observed the defendant touching A ‘‘in her
private areas,’’ the victim asked if her sister could ‘‘come
play with me.’’ As the victim recounted at trial, the
defendant ‘‘refused and got angry. He stood up and
pushed me. And then he told me that he knew what I
wanted. And then he held me down and he penetrated
my vagina [with] his penis.’’ In the years that followed,
the defendant continued to touch the victim and pene-
trate her with his penis on multiple occasions. That
conduct transpired until the victim was nearly thirteen
years old.
When the victim was almost fourteen years old, she
broke down during an argument with her mother and
told her that the defendant had raped and molested
her. E asked the defendant if that was true; when he
said no, the discussion ended. Later that night, the vic-
tim heard her mother crying in the shower. Neverthe-
less, E did nothing in response to her daughter’s
allegations.
In the years that followed, the victim ‘‘couldn’t even
stay in [her] home because [the defendant] was consis-
tently there.’’ She therefore routinely ‘‘made arrange-
ments so that [she] would not be home.’’ The victim
also would ‘‘cut’’ herself, and attempted to kill herself
on multiple occasions.
When the victim was nineteen years old, she informed
the police of her physical encounters with the defen-
dant. During their investigation of those allegations, the
police visited the victim’s former bedroom and discov-
ered two writings that were ‘‘scratched into the wall’’
behind a mirror. The writings stated, ‘‘I hate Ronald,’’2
and, ‘‘God will save me.’’ The victim testified that she
wrote those statements on her bedroom wall when she
was in middle school. Detective Christie Girard, who
investigated the victim’s former bedroom, similarly tes-
tified that the writings appeared to have been there
‘‘[f]or a while.’’ The defendant corroborated that assess-
ment at trial when he testified that he discovered the
‘‘I hate Ronald’’ writing on the victim’s bedroom wall in
‘‘February, 2002.’’3 Photographs of those writings were
introduced into evidence at trial.
The defendant was arrested on May 21, 2010, and
subsequently was charged with two counts of sexual
assault in the first degree and two counts of risk of
injury to a child. On June 29, 2010, the defendant first
appeared before the trial court. At that time, he was
represented by a public defender, Attorney Howard A.
Ehring, who requested that the matter be continued
until July 20, 2010. On July 20, 2010, Ehring and the
defendant again appeared before the court. At that time,
Ehring requested a signed copy of the warrant and a
continuance for one week.
On July 27, 2010, Ehring appeared briefly before the
court to indicate that he had filed a motion for reduction
of the defendant’s bond. He requested a hearing on
that motion on August 4, 2010. At the August 4, 2010
proceeding, Ehring requested a further continuance to
ensure that ‘‘a family member [of the defendant could]
speak on his behalf.’’ Ehring also requested the assis-
tance of a French interpreter.4 The court granted those
requests and continued the matter until August 10, 2010.
At the outset of the August 10, 2010 proceeding, Ehr-
ing informed the court of a potential conflict of interest
in his representation of the defendant. He therefore
filed a motion for the appointment of a special public
defender and requested a continuance, which the court
granted. On August 31, 2010, the defendant and Ehring
appeared before the court, at which time the court
appointed Attorney John W. Imhoff, Jr., as the defen-
dant’s special public defender. Because Imhoff was
recovering from knee surgery, the court continued the
matter for one month.
On October 1, 2010, Imhoff appeared before the court
with the defendant. At that time, the prosecutor indi-
cated that she had provided discovery to Imhoff earlier
that day. Imhoff, in turn, requested a continuance for
three weeks to review those materials with the defen-
dant, which the court granted. Imhoff appeared briefly
before the court on November 18, 2010, and requested
a further continuance, which the court again granted.
On the morning of January 5, 2011, Imhoff and the
defendant appeared before the court. The court began
by noting that a ‘‘Haitian interpreter’’ would not be
available until later in the afternoon and inquired as to
whether the defendant spoke ‘‘any English at all . . . .’’
Imhoff replied, ‘‘Yes, Your Honor. He’s written me sev-
eral letters [and] his grammar is better than most of
my clients.’’ Imhoff nevertheless informed the court
that the defendant ‘‘would prefer to have’’ the assistance
of an interpreter. The court thus continued the matter
until that afternoon. Later in the day, however, the pros-
ecutor informed the court that, due to a miscommunica-
tion, the interpreter had left the courthouse. The
interpreter’s office further indicated that it needed ‘‘a
little over a week’s continuance to get somebody here.’’
Accordingly, the court continued the matter.
Imhoff and the defendant appeared before the court
two weeks later. The prosecutor informed the court
that ‘‘[t]here’s been no indication that [the defendant]
had a willingness to plead to any of the charges that
the state would proceed on.’’ Imhoff confirmed that
account and opined that the matter should be placed
on the firm jury list, which the court agreed to do at
that time.
On December 23, 2011, the defendant filed a pro se
motion for a speedy trial. That one page motion was
completed on a preprinted form and was signed by the
defendant. The certification portion of that form, which
indicates the date of service on the Office of the State’s
Attorney, was left blank. That motion was denied on
January 4, 2012. The clerk who signed the ‘‘order’’ por-
tion of the motion by circling ‘‘denied’’ and writing,
‘‘Motion filed pro se, defendant is represented by an
attorney. Copy mailed to [the defendant].’’
On February 7, 2012, the defendant attempted to file
a second pro se motion for a speedy trial. That motion
once again utilized a preprinted form. The defendant
did not sign that motion or complete the certification
portion to indicate that it was served on the Office of
the State’s Attorney. The motion was accompanied by
a one paragraph note that stated: ‘‘This missive, it’s to
inform that I called ‘Maitre’ Imhoff today . . . and left
a message at his office asking him to go to the clerk’s
office . . . to signed [and] completed the ‘Motion for
Speedy Trial’ encl. Therefore, I respectfully implore the
clerk to inform him on reception of this missive.’’ There
is no indication in the record of any court action on
that request, apart from the following handwritten nota-
tion: ‘‘3/1/12 per Attorney Imhoff: he has no intent to
file this motion [and] he withdraws what was filed by
his client.’’
On April 5, 2012, the defendant filed a third pro se
motion for a speedy trial, again utilizing the same pre-
printed form. Although he signed that form, which was
accompanied by another one paragraph note, he did
not complete the certification portion to indicate that
he had served it on the Office of the State’s Attorney.
The clerk who signed the ‘‘order’’ portion of the motion
circled ‘‘denied’’ and wrote, ‘‘(White, J.) Denied—filed
pro se; defendant is represented, counsel does not want
to file.’’ While the defendant was attempting to file those
pro se motions with the court, Imhoff filed several unre-
lated motions on his behalf, including a motion for
a bill of particulars, a ‘‘motion for production of the
Department of Children and Families’ medical and psy-
chiatric records of the state’s witness,’’ and a motion
‘‘for notice of subject matter of proposed expert tes-
timony.’’
On October 17, 2012, Attorney Haldan E. Connor, Jr.,
filed an appearance in lieu of Imhoff as the defendant’s
counsel.5 On November 1, 2012, Connor appeared
before the court, at which time the prosecutor remarked
that she believed that Connor ‘‘being new to the case
. . . probably needs a little bit more time to talk to his
client prior to setting this case down for a trial date.’’
Connor concurred and requested a continuance until
November 15, 2012, which the court granted. When
Connor appeared before the court on that date, how-
ever, he informed the court that the matter ‘‘should go
back on the jury list’’ because ‘‘[w]e weren’t able to
reach any kind of resolution’’ with the state.
On November 26, 2012, the defendant attempted to
file a pro se motion to dismiss. That handwritten motion
set forth ten distinct grounds, including the denial of
his right to a speedy trial.6 The defendant further
requested a hearing on his motion. There is no indica-
tion in the record that the defendant provided a copy
of that motion to the state or that the court took any
action on the defendant’s request. Furthermore, on the
day that the defendant’s motion to dismiss was
received, a criminal caseflow coordinator, Ryan Flana-
gan, sent a written response to the defendant. In that
correspondence, Flanagan advised the defendant that
‘‘[w]e cannot accept or file motions from defendan[ts]
who are currently represented by attorneys. Our
records indicate [that] Attorney Connor has filed an
appearance in your case. Therefore, we cannot accept
your motion and it is being returned to you. If you have
any questions you can contact your attorney . . . .’’
The letter then recited Connor’s contact information.
On April 16, 2013, Attorney Matthew Couloute filed
an appearance in lieu of Connor as the defendant’s
counsel.7 On December 11, 2013, the parties appeared
before the court, at which time the state indicated that
the defendant faced a maximum possible exposure of
eighty years incarceration on all of his pending charges.
The state then formally offered the defendant the oppor-
tunity to enter a guilty plea to one count of sexual
assault in the first degree in exchange for ‘‘a ten year
sentence’’ with a two year mandatory minimum, ten
years of special parole and registration as a sexual
offender. The defendant rejected that offer. Couloute
informed the court that the defendant proposed a count-
eroffer under which he would plead guilty in exchange
for a sentence of time already served. The court sum-
marily rejected that counteroffer.
At that proceeding, the defendant contended that he
had not been provided with any notice of the charges
against him, stating that ‘‘I want to know what’s . . .
the accusation. . . . I don’t have no notion of the accu-
sation. I don’t have no due process. . . . [The state has
not] accused me of anything.’’ In response, the court
apprised the defendant that the information contained
four counts alleging sexual assault in the first degree
and risk of injury to a child. Couloute then informed
the court that, contrary to his client’s representation,
he had spoken with the defendant about those offenses
and had explained to him their elements and the range
of possible penalties.
Later that day, jury selection for the defendant’s crim-
inal trial commenced, and a trial was scheduled for the
following month. That trial did not take place due to
the death of Couloute’s father. As Couloute explained
to the court on February 24, 2014, in late December
his ‘‘father had a stroke and was hospitalized [and] he
subsequently passed away on January 7th.’’ Couloute,
therefore, was unavailable while tending to ‘‘those con-
cerns and his estate.’’ As a result of those ‘‘extraordinary
family circumstances,’’ the court declared a mistrial
and dismissed the potential jurors by agreement of the
parties. The parties agreed to begin selecting a new jury
on April 8, 2014.
Couloute and the defendant appeared before the
court on that date. At the outset, the court explained
that, due to unforeseen circumstances, jury selection
would be delayed by one day. The court then asked the
parties if they wanted to put any other matters on the
record. At that time, Couloute informed the court that
communications with the defendant ‘‘ha[d] broken
down.’’ Couloute explained that it was the defendant’s
position that ‘‘no one has reviewed his file with him.’’
Couloute indicated that he had met with the defendant
one day earlier at the correctional facility and discussed
his file with him, as he had done on prior occasions.
Couloute also informed the court of a disagreement
over trial strategy, as the defendant was ‘‘adamant’’ in
his desire to call certain witnesses. Couloute had
advised the defendant that he would not call those
witnesses, stating that ‘‘[s]trategically, I don’t think it’s
smart to call them. And at this point in time, when it
comes to that matter, I don’t think it’s prudent to put
those witnesses on the witness list.’’ Couloute indicated
that those witnesses were minors whom he believed
‘‘add nothing to the . . . case that would help defend
[the defendant]. . . . I do believe the use of these wit-
nesses and the context in which their testimony would
be offered isn’t relevant, nor is it probative . . . or
useful for his . . . defense.’’ Couloute notified the
court that the defendant ‘‘wanted to make sure that the
court was aware that [Couloute] refused to call those
witnesses.’’ Couloute concluded by stating, ‘‘I’m not
sure that [the defendant] feels that I can effectively
represent him without using these witnesses. But that’s
the place we are in.’’
In response, the court noted that this development
was on the eve of trial and years after the defendant’s
arrest. It then addressed counsel, in relevant part, as
follows: ‘‘Either I can let you out of this thing and [the
defendant] can represent himself if he wants to. He has
that right, if he wants to do that. . . . You’re a perfectly
competent trial lawyer . . . and we’re not going to play
these games on the eve of trial here. This is purely
dilatory. This is nonsense. I’m not going to let anybody
manipulate the system to the detriment of the people
here. . . . [N]obody on my watch will manipulate the
system, Mr. Couloute. And that’s exactly what we’re
doing here. This man has been through two or three
lawyers. And every time we’re about ready to go, some-
thing comes up; nonsense, absolute nonsense. If, after
we pick this jury—we’re going to commence the evi-
dence on [April 22, 2014]—if you think that somebody
has to be heard in terms of an offer of proof, I would
be delighted to entertain that. I’ll make whatever deter-
minations I deem are appropriate. No one will see to
it more than me that he’ll get a fair trial.’’
Couloute then stated that, in light of the defendant
‘‘being adamant regarding witnesses being called, I sug-
gest that . . . if he clearly or if he truly believes that
these witnesses are imperative to his defense, that he
either seek other counsel or represent himself. But for
the record, I am telling the court and [the defendant],
I will not be calling those witnesses.’’ The court con-
cluded by informing the parties that if the defendant
‘‘wishes to consider representing himself in this matter,
based upon what you have told me, I will see to it that
a Faretta canvass8 is done here, and he can proceed
on his own, if he wishes to do so. If it’s that much of
a fissure that has taken place, he can do that. It isn’t
going to delay the trial. If he wants to pick them by
himself, that’s up to him. . . . [T]hat’s his constitu-
tional prerogative.’’ (Footnote added.) The court then
asked the defendant if he had ‘‘anything to say about
[his] representation’’ by Couloute; the defendant did
not respond in any manner. With that, the court stood
in recess. At no time thereafter did the defendant indi-
cate a desire to represent himself.
A trial was held over the course of four days in April,
2014. At its conclusion, the jury found the defendant
guilty on all counts. The court rendered judgment
accordingly and sentenced the defendant to a total
effective term of twenty years incarceration, of which
five years were a mandatory minimum. From that judg-
ment, the defendant now appeals.
I
The defendant first claims that the court violated his
statutory right to a speedy trial under § 54-82m. For
two distinct reasons, we disagree.
Section 54-82m ‘‘requires the judges of the Superior
Court to adopt rules that are necessary to assure a
speedy trial for any person charged with a criminal
offense . . . . With respect to a defendant who is
incarcerated in a correction institution of this state
pending trial, § 54-82m requires the rules to provide:
(1) in any case in which a plea of not guilty is entered,
the trial of a defendant charged in an information or
indictment with the commission of a criminal offense
shall commence . . . within eight months from the fil-
ing date of the information or indictment or from the
date of arrest, whichever is later; and (2) if a defendant
is not brought to trial within the time limit set forth in
subdivision (1) and a trial is not commenced within
thirty days of a motion for a speedy trial made by the
defendant at any time after such time limit has passed,
the information or indictment shall be dismissed. Such
rules shall include provisions to identify periods of
delay caused by the action of the defendant, or the
defendant’s inability to stand trial, to be excluded in
computing the time limits set forth in subdivision (1).
. . . Practice Book § 43-40 then sets forth ten circum-
stances constituting those periods of time [that] shall
be excluded in computing the [eight months] within
which the trial of a defendant . . . must commence
pursuant to [Practice Book §] 43-39.’’ (Citations omitted;
internal quotation marks omitted.) State v. Cote, 101
Conn. App. 527, 532–33, 922 A.2d 322, cert. denied, 284
Conn. 901, 931 A.2d 266 (2007).
‘‘The determination of whether a defendant has been
denied his right to a speedy trial is a finding of fact,
which will be reversed on appeal only if it is clearly
erroneous. . . . The trial court’s conclusions must
stand unless they are legally and logically inconsistent
with the facts.’’ (Internal quotation marks omitted.)
State v. Jeffreys, 78 Conn. App. 659, 669–70, 828 A.2d
659, cert. denied, 266 Conn. 913, 833 A.2d 465 (2003),
overruled in part on other grounds by State v. Polanco,
308 Conn. 242, 248, 253, 61 A.3d 1084 (2013). The proper
application of § 54-82m and our related rules of practice
require a factual finding as to whether the applicable
time limit has passed. That inquiry, in turn, necessitates
factual findings as to whether certain periods of delay
are excluded from that calculation. See Practice Book
§ 43-40.9
In State v. Miller, 121 Conn. App. 775, 786–87, 998
A.2d 170, cert. denied, 298 Conn. 902, 3 A.3d 72 (2010),
this court considered a case in which the trial court
summarily denied a motion for a speedy trial and the
defendant thereafter took no steps to ascertain the basis
of that ruling. As the court noted, ‘‘the [trial] court
did not address the defendant’s § 54-82m claim. The
defendant never filed a motion for articulation pursuant
to Practice Book § 66-5. Additionally, the record is
devoid of any information that would apply to whether
any of the relevant time period was subject to exclusion;
see Practice Book § 43-40; from the speedy trial calcu-
lus.’’ For that reason, this court concluded that ‘‘the
record is inadequate to review the defendant’s claim.’’
In so doing, the court indicated that, without those
necessary factual findings, its decision would be
entirely speculative. State v. Miller, supra, 787.
In the present case, the trial court likewise did not
address the claims set forth in the defendant’s motions
for a speedy trial, nor did it make any factual findings
related thereto. Given the state of the record before us,
this court cannot properly engage in meaningful review
of the defendant’s claim without resort to speculation
and conjecture, which ‘‘have no place in appellate
review.’’ (Internal quotation marks omitted.) New Hart-
ford v. Connecticut Resources Recovery Authority, 291
Conn. 502, 510, 970 A.2d 578 (2009).
The defendant’s claim is plagued by a further infir-
mity. It is undisputed that the defendant was repre-
sented at all times by counsel when he attempted to
file his pro se motions. As such, his claim is foreclosed
by well established precedent.
In State v. Gibbs, 254 Conn. 578, 608, 758 A.2d 327
(2000), the defendant, despite being represented by
counsel, made a pro se motion to dismiss predicated
on ‘‘an alleged violation of his federal and state constitu-
tional right to a speedy trial,’’ which the trial court
denied. On appeal, our Supreme Court emphasized that,
although ‘‘a defendant either may exercise his right to
be represented by counsel . . . or his right to represent
himself . . . he has no constitutional right to do both
at the same time.’’ (Citations omitted; emphasis in origi-
nal.) Id., 610. The court continued: ‘‘It is equally well
settled that, having made the knowing, intelligent and
voluntary choice to avail himself of the services of coun-
sel, a defendant necessarily surrenders to that counsel
the authority to make a wide range of strategic and
tactical decisions regarding his case. . . . Although a
represented defendant does retain the absolute right to
make a limited number of choices regarding his case
. . . neither the United States Supreme Court, nor this
court, has ever expanded that extremely narrow class
to include the choice of whether to file a motion to
dismiss for lack of a speedy trial. Indeed, such a choice
clearly is one of the vast panoply of trial decisions
for which one retains an experienced and competent
attorney.’’ (Citations omitted.) Id., 610–11. In light of
certain representations made by the defendant’s coun-
sel to the trial court, the Supreme Court concluded that
counsel’s ‘‘decision not to file a motion to dismiss very
likely was tactical in nature.’’ Id., 612. For that reason,
the court held that ‘‘the defendant had no authority to
make the motion pro se.’’ Id.; see also State v. Cote,
supra, 101 Conn. App. 532 n.6 (‘‘the defendant had no
authority to make a pro se oral motion to dismiss on
speedy trial grounds while he was represented by
counsel’’).
That logic applies equally in the present case. Here,
the defendant sought to file pro se motions for a speedy
trial and to dismiss, despite the fact that he was repre-
sented by counsel at all times. Moreover, his trial coun-
sel on multiple occasions informed the clerk’s office
that he did not want to pursue such motions with the
court.10 As in Gibbs, we must presume that counsel’s
decision was tactical in nature. In addition, when the
defendant attempted to file his pro se motion to dismiss,
the caseflow coordinator responded in writing to indi-
cate that, consistent with the foregoing precedent, the
court ‘‘cannot accept or file motions from defendan[ts]
who are currently represented by attorneys.’’ Yet at no
time did the defendant request to represent himself.
Having availed himself of legal counsel, the defendant
lacked the authority to file the pro se motions at issue
in the present case.
II
The defendant next claims that the court violated his
constitutional right to a speedy trial. The sixth amend-
ment to the United States constitution provides in rele-
vant part: ‘‘In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial . . . .’’11
The sixth amendment right to a speedy trial is made
applicable to the states through the due process clause
of the fourteenth amendment. See Klopfer v. North Car-
olina, 386 U.S. 213, 222–23, 87 S. Ct. 988, 18 L. Ed. 2d
1 (1967).
‘‘Although the right to a speedy trial is fundamental,
it is necessarily relative, since a requirement of unrea-
sonable speed would have an adverse impact both on
the accused and on society.’’ State v. Johnson, 190 Conn.
541, 544, 461 A.2d 981 (1983). In Barker v. Wingo, 407
U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972),
the United States Supreme Court articulated a balancing
test to determine whether the right to a speedy trial
has been violated, which entails consideration of the
‘‘[l]ength of delay, the reason for the delay, the defen-
dant’s assertion of his right, and prejudice to the defen-
dant.’’ As our Supreme Court has explained, ‘‘[u]nder
Barker, the determination of whether such rights have
been violated requires a case-by-case approach in which
the court examines the factual circumstances in light
of [that] balancing test . . . .’’ State v. Smith, 289 Conn.
598, 613, 960 A.2d 993 (2008); accord United States v.
Marshall, 669 F.3d 288, 296 (D.C. Cir. 2011) (‘‘factual
findings are required pursuant to Barker v. Wingo
[supra, 514]’’); United States v. Fredrick, 334 Fed. Appx.
727, 728 (5th Cir. 2009) (‘‘[i]n reviewing a speedy trial
claim, this court reviews factual findings for clear
error’’), cert. denied, 559 U.S. 986, 130 S. Ct. 1725, 176
L. Ed. 2d 204 (2010).
In this case, the record before us lacks the requisite
findings under § 54-82m, which ‘‘codifies a defendant’s
constitutional right to a speedy trial’’; State v. Hampton,
66 Conn. App. 357, 366–67, 784 A.2d 444, cert. denied,
259 Conn. 901, 789 A.2d 992 (2001); and Practice Book
§ 43-40 regarding the length of delay, including any peri-
ods of time that, under our rules of practice, are
excluded from the calculation thereof. See footnote 9
of this opinion. The record also does not contain any
findings as to the reasons for the delay.12 The lack of
such findings also impairs our ability to properly con-
sider the question of prejudice. We note further that, at
oral argument before this court, the defendant’s counsel
acknowledged that ‘‘there is no evidence in this record
of prejudice.’’ Moreover, as discussed in part I of this
opinion, the defendant did not properly assert his right
to a speedy trial before the trial court.13
State v. Smith, supra, 289 Conn. 598, is instructive
in this regard. In that case, ‘‘the defendant did not ask
the trial court to apply Barker and, therefore, the court
did not make the factual findings required under that
test.’’ Id., 613. Because ‘‘the record [did] not contain all
of the relevant factual findings,’’ our Supreme Court
declined to review the defendant’s sixth amendment
claim. Id.; see also State v. Friend, 159 Conn. App.
285, 342, 122 A.3d 740 (concluding that record was
inadequate to review speedy trial claim), cert. denied,
319 Conn. 954, 125 A.3d 533 (2015). Guided by that
precedent, we decline to further consider the defen-
dant’s claim.
III
The defendant also contends that the court violated
his right to procedural due process by failing to hold
hearings on his pro se motions for a speedy trial. The
defendant did not preserve this claim at trial and now
seeks review pursuant to State v. Golding, 213 Conn.
233, 239–40, 567 A.2d 823 (1989), as modified by In re
Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).14
Even if he could surmount the fact that the record
before us is largely silent as to what transpired before
the trial court with respect to his pro se motions for a
speedy trial, he still could not prevail, as he lacked
authority to file those motions under established law.
See State v. Gibbs, supra, 254 Conn. 612; State v. Cote,
supra, 101 Conn. App. 532 n.6. Moreover, the defen-
dant’s counsel in the present case affirmatively indi-
cated to the trial court that he did not want to pursue
those motions. See footnote 10 of this opinion. In light
of the foregoing, the defendant’s claim must fail.
IV
The defendant maintains, as a final matter, that the
court committed plain error in providing a constancy
of accusation charge to the jury. We disagree.
The following additional facts are relevant to the
defendant’s claim. At trial, the victim was asked if she
had spoken to any peers about ‘‘what had happened’’
with the defendant. The victim testified that, when she
was sixteen years old, she confided in her ‘‘best friend,’’
D, about that experience. D later testified at trial as a
constancy of accusation witness. In his testimony, D
stated that, while they were in high school together,
the victim told him that she was sexually assaulted by
a person she described as her stepfather ‘‘when she
was a little girl.’’ D further indicated that the victim
did not provide any specifics regarding the nature of
those assaults.
The victim’s mother, E, also testified as a constancy
of accusation witness. The victim earlier had testified
that she had told E that the defendant had raped and
molested her. In her testimony, E described the time
that, during an argument regarding the defendant, her
daughter ‘‘lashed out that he had touched her.’’ E testi-
fied that the victim informed her that the defendant
had sexually assaulted her, and when and where those
assaults transpired.
Following the close of evidence, the court held a
charging conference with the parties. At the outset, the
court noted that ‘‘counsel has had a copy of the charge
in hand for a couple of days.’’ The court then proceeded
to review the substance of its jury charge with the
parties. With respect to its instruction on constancy of
accusation testimony,15 the court stated: ‘‘On the con-
stancy of accusation, there were two witnesses that
were constancy witnesses, in part the mother of the
[victim] here, and [D]. Do you both agree that the con-
stancy charge is a fair charge to set forth [to the jury]?’’
Both defense counsel and the prosecutor answered
affirmatively.
On appeal, the defendant reverses course and con-
tends that the court’s constancy of accusation instruc-
tion was improper. In response, the state submits that
the defendant has waived his claim of instructional
error.
In State v. Kitchens, 299 Conn. 447, 482–83, 10 A.3d
942 (2011), our Supreme Court held that ‘‘when the trial
court provides counsel with a copy of the proposed
jury instructions, allows a meaningful opportunity for
their review, solicits comments from counsel regarding
changes or modifications and counsel affirmatively
accepts the instructions proposed or given, the defen-
dant may be deemed to have knowledge of any potential
flaws therein and to have waived implicitly the constitu-
tional right to challenge the instructions on direct
appeal. Such a determination by the reviewing court
must be based on a close examination of the record and
the particular facts and circumstances of each case.’’
Those criteria all are satisfied in the present case.
The court provided counsel with a copy of its proposed
jury charge days in advance. It thereafter conducted a
charging conference, at which it solicited feedback
from the parties. During that conference, defense coun-
sel raised no objection to the constancy of accusation
instruction. Indeed, counsel expressly indicated that he
believed that the instruction was a ‘‘fair’’ one. Accord-
ingly, we conclude that the defendant implicitly waived
his jury instruction claim under the rule articulated
in Kitchens.
That determination does not end our inquiry, as the
defendant claims that the judgment should be reversed
pursuant to the plain error doctrine. See Practice Book
§ 60-5. During the pendency of this appeal, our Supreme
Court clarified that ‘‘a Kitchens waiver does not pre-
clude plain error review.’’ State v. McClain, 324 Conn.
802, 812, 155 A.3d 209 (2017). We therefore consider
the merits of the defendant’s claim.
Review under the plain error doctrine is ‘‘reserved
for only the most egregious errors’’; id., 814; and ‘‘truly
extraordinary situations [in which] the existence of the
error is so obvious that it affects the fairness and integ-
rity of and public confidence in the judicial proceed-
ings.’’ (Internal quotation marks omitted.) State v.
Myers, 290 Conn. 278, 289, 963 A.2d 11 (2009). To prevail
under the plain error doctrine, an appellant must dem-
onstrate, as a threshold matter, the existence of an error
‘‘that it is patent [or] readily [discernible] on the face
of a factually adequate record, [and] also . . . obvious
in the sense of not debatable.’’ (Internal quotation
marks omitted.) State v. McClain, supra, 324 Conn. 812.
The defendant has not met that substantial burden.
Under Connecticut law, constancy of accusation evi-
dence—which generally consists of testimony by ‘‘a
person to whom a sexual assault victim has reported
the assault’’—is ‘‘admissible only to corroborate the
victim’s testimony and not for substantive purposes.’’
State v. Troupe, 237 Conn. 284, 304, 677 A.2d 917
(1996).16 The instruction provided in the present case
comports with that precedent, as it informed the jury
that the constancy of accusation testimony provided
by D and E was ‘‘admitted solely to corroborate [the
victim’s] testimony here in court, it’s to be considered
by you for the limited purpose of determining the credi-
bility and the weight to be given her testimony before
you. In other words, it’s not admitted for the truth of
those statements but only for the purpose of corroborat-
ing what she testified to you—testified before you, here
in court.’’
The defendant nonetheless argues that the jury likely
was misled by the court’s failure to define the term
‘‘corroboration.’’ Our appellate courts have rejected
such a claim twice in the past ten months. See State v.
Daniel W. E., 322 Conn. 593, 609, 142 A.3d 265 (2016)
(concluding that court’s constancy of accusation
instruction ‘‘accurately portrayed the law and did not
mislead the jury’’ despite ‘‘the trial court’s failure to
define the word ‘corroborate’ ’’); State v. Roberto Q.,
170 Conn. App. 733, 744–45, 155 A.3d 756 (same), cert.
denied, 325 Conn. 910, A.3d (2017). In the pre-
sent case, the court plainly advised the jurors of the
limited purpose for which they could consider the con-
stancy of accusation testimony provided by D and E.
Accordingly, we cannot conclude that the court’s con-
stancy of accusation instruction constituted an error
‘‘obvious in the sense of not debatable.’’ (Internal quota-
tion marks omitted.) State v. McClain, supra, 324
Conn. 812.
Furthermore, the defendant has not demonstrated
that manifest injustice resulted from the court’s alleg-
edly improper instruction, as the plain error doctrine
requires. See State v. Coward, 292 Conn. 296, 307, 972
A.2d 691 (2009). Although the defendant on appeal
argues that the court should have defined the term
‘‘ ‘corroboration’ such that the jury would be able to
determine the difference between an appropriate use
of constancy [of] accusation evidence (to prove that a
complaint was made), and an inappropriate use of
[such] evidence (to prove that the complaint was true),’’
the record reveals that the defendant expressly encour-
aged the latter practice at trial. Specifically, his counsel
elicited testimony from E indicating that she did not
believe the victim’s initial disclosure of sexual assault,
and then argued to the jury that it should discredit the
victim’s testimony in light of that evidence.17 When a
party so utilizes allegedly improper evidence, it cannot
prevail under the plain error doctrine. See, e.g., State
v. Ampero, 144 Conn. App. 706, 715, 72 A.3d 435 (‘‘[t]he
defendant cannot show manifest injustice because his
defense counsel waived this claim by failing to take
action against the admission of such evidence and then
strategically used the evidence to his advantage’’), cert.
denied, 310 Conn. 914, 76 A.3d 631 (2013); State v.
Hawkins, 51 Conn. App. 248, 256, 722 A.2d 278 (1998)
(‘‘[h]aving used some of this [the constancy of accusa-
tion] evidence to his advantage in his closing argument,
the defendant cannot now establish that any alleged
improper evidentiary ruling . . . deprived him of a fair
trial’’), cert. denied, 281 Conn. 901, 916 A.2d 46 (2007).
The defendant’s invocation of the plain error doctrine,
therefore, is unavailing.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
2
At trial, the victim identified the defendant as ‘‘Ronald Joseph.’’
3
In February, 2002, the victim was eleven years old.
4
The record reflects that the defendant is a citizen of Canada who speaks
in a French dialect.
5
The record before us is bereft of any explanation for that substitution.
The record further does not contain any indication that Connor was a court-
appointed attorney.
6
The defendant’s November 26, 2012 motion to dismiss states in relevant
part that he ‘‘requests the court to dismiss the information on the ground that:
‘‘(1) The information failed to charge and offense; or
‘‘(2) The institution of the prosecution was defective; or
‘‘(3) The statute of limit has expired; or
‘‘(4) The court has no jurisdiction over the subject matter; or
‘‘(5) The court has no jurisdiction over the defendant; or
‘‘(6) There is insufficient evidence or cause to justify the bringing or
continuing of such information or the placing of the defendant on trial; or
‘‘(7) The defendant has been denied a speedy trial;
‘‘(8) The law defining the offense charges is unconstitutional or otherwise
invalid; or
‘‘(9) The affidavit relied on for the issuance of the arrest warrant is
insufficient; or
‘‘(10) Any other legally sufficient grounds the defendant can establish.’’
7
The record lacks any explanation for that substitution. In the appendix
to its appellate brief, the state has included a copy of a petition for a writ
of habeas corpus filed by the defendant on December 31, 2014. In that
petition, the defendant avers that Couloute was privately retained. We prop-
erly may take judicial notice of that pleading. See Karp v. Urban Redevelop-
ment Commission, 162 Conn. 525, 527, 294 A.2d 633 (1972) (‘‘[t]here is no
question . . . concerning our power to take judicial notice of files of the
Superior Court, whether the file is from the case at bar or otherwise’’);
Folsom v. Zoning Board of Appeals, 160 Conn. App. 1, 3 n.3, 124 A.3d 928
(2015) (taking ‘‘judicial notice of the plaintiff’s Superior Court filings in . . .
related actions filed by the plaintiff’’).
8
See Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 45 L. Ed. 2d
562 (1975).
9
Practice Book § 43-40 outlines various circumstances in which periods
of time are excluded from the calculation of the time limitations of § 54-
82m. They include periods of time attributable to, inter alia, continuances
granted by the judicial authority at the request of the defendant, the unavail-
ability of counsel for the defendant, and ‘‘delay occasioned by exceptional
circumstances.’’ Practice Book § 43-40 (10).
10
As the defendant notes in his principal appellate brief, ‘‘his attorney
repeatedly informed the clerk that he did not want to file the motion for a
speedy trial.’’
11
Although the defendant also alleges a violation of his right under article
first, § 8, of the Connecticut constitution, he has provided no independent
analysis thereof. Accordingly, we consider his claim under the federal consti-
tution alone. See State v. Saturno, 322 Conn. 80, 113 n.27, 139 A.3d 629 (2016).
12
As the state emphasizes in its appellate brief, the record is silent as to
why no proceedings transpired before the court from January 5, 2011 to
October 17, 2012, and from November 15, 2012 to December 11, 2013.
13
We reiterate that, pursuant to State v. Gibbs, supra, 254 Conn. 612, the
defendant lacked authority to file his pro se motions for a speedy trial and
to dismiss. Furthermore, it is undisputed that the defendant failed to serve
copies of those motions on the state. In so doing, he undermined an essential
purpose of § 54-82m. As the Supreme Court has observed, the legislature
enacted that statute ‘‘with the intent that the defendant’s motion would alert
. . . the state that the clock was running and that, to avoid dismissal of
the charges, the defendant would have to be afforded a trial within thirty
days. . . . The legislature recognized that institutional negligence might
occur . . . and that the defendant’s speedy trial motion would remind the
state that it must commence the trial within thirty days or face a dismissal.
. . . In other words, the motion for a speedy trial is supposed to be the
state’s wake up call. It is intended to [give] the state another crack from
preventing that individual from being set free.’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) State v. McCahill, 265 Conn. 437,
451–52, 828 A.2d 1235 (2003). No such wake-up call was provided to the
state in the present case.
14
Under Golding, ‘‘a defendant can prevail on a claim of constitutional
error not preserved at trial only if all of the following conditions are met:
(1) the record is adequate to review the alleged claim of error; (2) the claim
is of constitutional magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless error analysis, the
state has failed to demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt.’’ (Emphasis in original; footnote omit-
ted.) State v. Golding, supra, 213 Conn. 239–40.
15
The court’s instruction on constancy of accusation testimony stated in
relevant part: ‘‘If you find that a witness made statements at other times
about the case, whether oral or written, you may consider whether those
statements were consistent or inconsistent with what the witness has testi-
fied to here before you in court when weighing their credibility.
‘‘In a case such as this, you may also consider any delay in the reporting
of the alleged incident in evaluating the credibility of the [victim] and the
weight to be given her testimony. In this regard, you’ll recall that you heard
some testimony in the case from Dr. Lawrence Rosenberg, who testified as
to child grooming and of delayed reporting by children, amongst other
things. Any opinions rendered by him are not binding upon you. Such expert
testimony is subject to review at your hands just as any other testimony. You
will size up and give the weight to that testimony as you deem appropriate.
‘‘Now, let me talk to you about a couple of other things before we take a
quick break. Let me talk to you about something called constancy witnesses.
Ordinarily, when someone makes a statement out of court not under oath,
it’s inadmissible. We normally call that hearsay; it’s not tested by an oath.
But there are exceptions, and we have encountered one in this case. The
state has offered evidence of statements made by the [victim] out of court
to certain individuals concerning the alleged crimes, and you’ll recall those
statements were admitted into evidence.
‘‘Please recall the statements made by the [victim] to her mother and to
her friend, [D]. This evidence is admitted solely to corroborate her testimony
here in court; it’s to be considered by you for the limited purpose of determin-
ing the credibility and the weight to be given her testimony before you. In
other words, it’s not admitted for the truth of those statements but only for
the purpose of corroborating what she testified to you—testified before
you, here in court.’’
16
In his principal appellate brief, the defendant argues that ‘‘[t]his case
provides yet another instance of why this court should overrule Troupe
and its progeny.’’ We are not the proper audience for such claims. As an
intermediate appellate body, it is axiomatic that this court is ‘‘bound by
Supreme Court precedent and [is] unable to modify it . . . . [W]e are not
at liberty to overrule or discard the decisions of our Supreme Court . . . .
[I]t is not within our province to reevaluate or replace those decisions.’’
(Citation omitted; internal quotation marks omitted.) State v. Smith, 107
Conn. App. 666, 684–85, 946 A.2d 319, cert. denied, 288 Conn. 902, 952 A.2d
811 (2008).
17
In his closing argument to the jury, defense counsel stated in relevant
part: ‘‘[T]ake into consideration the lack of affect when [the victim] told
the story that she used, the lack of details, the lack of corroboration of the
story, the actions afterward—when I say afterward, after the disclosure. I
wonder why after the disclosure to the mother, everybody went on about
their business. The mother truly didn’t believe her to the point where she
just let the child just go back to the same places, the same routines and
everything else. So, if the mother doesn’t believe her, eight, nine years later,
how are you supposed to believe her? How are you supposed to convict
someone on a statement made that far from the time of the event where
the mother didn’t believe it, when it was going on?’’