SC19980 - State v. Purcell ("In Davis v. United States, 512 U.S. 452, 459–60, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994), the United States Supreme Court determined that, after a defendant has been informed of his Miranda rights, the police officers conducting a custodial interrogation have no obligation to stop and clarify an ambiguous invocation by the defendant of his right to have counsel present. Instead, they must cease interrogation only upon an objectively unambiguous, unequivocal invocation of that right. See id. The court recognized that this standard "might disadvantage some suspects who—because of fear, intimidation, lack of linguistic skills, or a variety of other reasons—will not clearly articulate their right to counsel although they actually want to have a lawyer present." Id., 460.

This certified appeal requires us to decide whether the Davis standard was met in this case, and, if not, whether a more protective prophylactic rule is required under the Connecticut constitution. The defendant, Robert John Purcell, appeals from the Appellate Court's judgment affirming his conviction of three counts of risk of injury to a child in violation of General Statutes § 53-21. We conclude that the defendant's statements during interrogation did not meet Davis' "clear and unequivocal" standard so as to require suppression of subsequent inculpatory statements under the federal constitution. We further conclude, however, that the Connecticut constitution does not condone a rule that could disadvantage the most vulnerable of our citizens. We hold that, to adequately safeguard the right against compelled self-incrimination under article first, § 8, of the Connecticut constitution, police officers are required to clarify an ambiguous request for counsel before they can continue the interrogation. Because no such clarification was elicited in the present case and the failure to do so was harmful, we conclude that the defendant is entitled to a new trial.")

• Posted in:
• Criminal Law & Procedure,
• Recent Opinions

AC41165 - Holbrook v. Commissioner of Correction ("The petitioner, Michael Holbrook, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that he failed to prove (1) ineffective assistance of his prior habeas counsel, and (2) that the state suppressed exculpatory evidence at his criminal trial in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). We affirm the judgment of the habeas court.")

• Posted in:
• Habeas Corpus Law,
• Recent Opinions

AC40274 - Marino v. Statewide Grievance Committee ("The plaintiff, Debra B. Marino, an attorney, appeals from the judgment of the trial court dismissing her appeal from the sanctions imposed by the reviewing committee of the defendant, the Statewide Grievance Committee, for violating rule 4.4 (a) of the Rules of Professional Conduct. The plaintiff claims that the court improperly upheld the defendant's conclusion that the motion for a capias that she filed while representing a client in a family proceeding had no substantial purpose other than to embarrass or burden the complainant, Melissa Mathison. We agree with the plaintiff and reverse the judgment of the trial court.")

• Posted in:
• Legal Malpractice & Attorney Discipline Law,
• Recent Opinions

AC40834 - Cohen v. King (Defamation; "The self-represented plaintiff, Debra Cohen, appeals from the judgment of the trial court granting a motion to dismiss filed by the defendant, Patricia A. King. On appeal, the plaintiff claims that the trial court erred in concluding that the doctrine of litigation privilege barred her action sounding in defamation and fraud. We affirm the judgment of the trial court.")

AC40956 - Harvey v. Dept. of Correction (Wrongful death; "The plaintiff, Sandra Harvey, administratrix of the estate of Isaiah Boucher, appeals from the judgment of the trial court dismissing the wrongful death action filed against the defendants, the Department of Correction and the University of Connecticut Health Center Correctional Managed Health Care, to which we collectively refer in this opinion as the state. On July 16, 2015, the Claims Commissioner (claims commissioner) authorized Boucher to bring a medical malpractice action against the state. Boucher, however, died during September, 2015, without having filed an action, and the plaintiff did not commence the underlying action on behalf of Boucher's estate until more than one year later. The state filed a motion to dismiss the action because it was untimely pursuant to General Statutes § 4-160 (d), which requires a party who is granted authorization by the claims commissioner to sue the state to do so within one year from the date such authorization is granted. The plaintiff claims on appeal that the court improperly granted the state's motion to dismiss because the statute of limitations set forth in General Statutes § 52-555 (a), which permits a wrongful death action to be brought within two years from the date of the decedent's death, had not expired and is not limited by § 4-160 (d). Alternatively, the plaintiff claims that the one year limitation period prescribed in § 4-160 (d) was extended in this case by operation of General Statutes § 52-594, and, therefore, her action was timely. We disagree and, accordingly, affirm the judgment of the trial court.")

• Posted in:
• Recent Opinions,
• Tort Law

AC40785 - Premier Capital, LLC v. Shaw (Action on judgment; lack of standing; "The defendant, Jay Shaw, appeals from the judgment of the trial court, following a bench trial, rendered in favor of the plaintiff, Premier Capital, LLC (plaintiff LLC). On appeal, the defendant claims that (1) the trial court lacked subject matter jurisdiction over the present case as a result of the plaintiff LLC's lack of standing, (2) the court erred in determining that the plaintiff LLC established ownership of the prior judgment it sought to enforce because there were breaks in the chain of title, and (3) the court erred in concluding that his special defense was invalid. We agree with the defendant on the first claim and, accordingly, reverse the judgment of the trial court.")

AC40619 - Saint Francis Hospital & Medical Center v. Malley (Default judgment; "The defendant Tracy Malley appeals from the default judgment rendered against her in favor of the plaintiff, Saint Francis Hospital and Medical Center, in this action to collect a debt for unpaid medical expenses incurred by Edward Malley. On appeal, the defendant claims that there was no basis for the entry of a default against her, and, therefore, the rendering of the default judgment was improper.The plaintiff, who prevailed before the trial court, did not file a brief, therefore, this appeal was considered on the basis of the defendant's brief, argument, appendix and record only. We agree with the defendant and reverse the judgment of the trial court.")

AC40424 - Ion Bank v. J.C.C. Custom Homes, LLC ("In this replevin action, the plaintiff, Ion Bank, appeals from the judgment of the trial court granting a motion to dismiss filed by the defendants, J.C.C. Custom Homes, LLC (J.C.C.), Rock On Excavation Services, LLC (Rock On), John C. Ciappetta, and Dawn E. Ciappetta. The court concluded that the plaintiff lacked standing to bring the action because, prior to commencing it, the plaintiff had assigned its interest in the underlying promissory note to Nutmeg Financial Holdings, LLC (Nutmeg), and, therefore, the court lacked subject matter jurisdiction.")

• Posted in:
• Civil Procedure,
• Contract Law,
• Recent Opinions

SC20004 - Gould v. Stamford (Single-member limited liability companies; concurrent employment of City of Stamford and Intervale; whether the plaintiff is " eligible for concurrent compensation benefits from the defendant Second Injury Fund (fund) pursuant to General Statutes § 31-310...The fund denied the claim for benefits on the ground that the plaintiff was not Intervale’s employee. The plaintiff sought review of this ruling by the Workers’ Compensation Commission (commission). After a hearing, the Workers’ Compensation Commissioner for the Seventh District (commissioner) determined that the plaintiff was not an employee of Intervale for purposes of the act and, therefore, did not qualify for compensation benefits based on his allegedly concurrent employment. The plaintiff appealed from the decision of the commissioner to the Compensation Review Board (board), which affirmed that decision. This appeal followed. We conclude that the plaintiff qualifies as Intervale’s employee for purposes of the act and, therefore, is eligible for concurrent employment benefits pursuant to § 31-3”)

• Posted in:
• Recent Opinions,
• Workers' Compensation Law

AC41367 - State v. Bischoff (Possession of narcotics; possession of less than four ounces of cannabis-type substance; motion to correct illegal sentence; claim that 2015 amendment of statute applicable to possession of narcotics (§ 21a-279 [a]) applied retroactively and entitled defendant to resentencing on conviction of possession of narcotics; whether this court is bound by precedent from our Supreme Court; "The defendant, Haji Jhmalah Bischoff, appeals from the judgment of the trial court dismissing his motion to correct an illegal sentence. After reviewing the record and the parties' briefs, we conclude that the defendant's claim is barred by appellate precedent. We further conclude that the form of the judgment is improper, and, accordingly, we reverse the judgment dismissing the defendant's motion to correct an illegal sentence and remand the case to the trial court with direction to render judgment denying the defendant's motion.")

• Posted in:
• Criminal Law & Procedure,
• Recent Opinions

AC41034 - Garden Homes Profit Sharing Trust, L.P. v. Cyr ("The plaintiff, Garden Homes Profit Sharing Trust, L.P., appeals from the trial court's judgment in favor of the defendant, Robert Cyr. The plaintiff claims that the court erred by (1) concluding that the plaintiff lacked statutory authority to proceed with the summary process action against the defendant in the absence of Susan Scribner, the owner of the mobile home where the defendant resides, (2) rendering judgment in favor of the defendant after concluding that the owner of the mobile home where the defendant resides was a necessary party to the action, and (3) denying the plaintiff's Practice Book § 11-11 motion to reargue the court's initial decision to dismiss the plaintiff's action. For the reasons set forth in this opinion, we reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.")

• Posted in:
• Landlord / Tenant Law,
• Recent Opinions

AC40941 - Taing v. CAMRAC, LLC ("This appeal arises from a pregnancy discrimination action brought by the plaintiff, Mouy Taing, under the Connecticut Fair Employment Practices Act against the defendant, CAMRAC, LLC, after she was terminated from her employment with the defendant. On appeal, the plaintiff argues that the trial court improperly rendered summary judgment in favor of the defendant. Specifically, she claims that there was a genuine issue of material fact as to whether the defendant's proffered reason for her termination was pretextual. We disagree and, accordingly, affirm the judgment of the trial court.")

AC40377 - McKiernan v. Civil Service Commission ("The plaintiff, Edward McKiernan, appeals from the trial court's judgment, rendered after a trial to the court, denying his request for a declaratory judgment allowing him to retake the oral assessment portion of the city of Bridgeport's 2015 detective promotional examination and prohibiting the defendants from certifying the results of that examination or promoting candidates on the basis of those results. On appeal, the plaintiff claims that the trial court erred by rendering judgment in favor of the defendants on the basis of its finding that the challenged examination was administered in accordance with the requirements of the charter of the city of Bridgeport. We affirm the judgment of the trial court.")

• Posted in:
• Declaratory Judgment Law,
• Employment Law,
• Recent Opinions

SC19960 - State v. Brown (Burglary; larceny; conspiracy; attempt; criminal mischief, criminal trover; possession of burglar tools; motions to suppress; motion to dismiss; "The present case is in large part governed by the recent decision of the United States Supreme Court in Carpenter v. United States, ___ U.S. ___, 138 S. Ct. 2206, 2217, 2221, 201 L. Ed. 2d 507 (2018), in which the court held that an individual has "a legitimate expectation of privacy in the record of his physical movements as captured through [cell site location information]" (CSLI), and, therefore, "the [g]overnment must generally obtain a warrant supported by probable cause before acquiring such records." The state appeals from the judgments of dismissal rendered by the trial court after it granted the oral motion of the defendant, Terrance Brown, seeking dismissal of all charges in thirteen separate dockets. The state claims that the trial court improperly granted the defendant's motions to suppress any and all "cellular-telephone-derived location information" obtained by the state as a result of three ex parte orders that had been granted pursuant to General Statutes (Rev. to 2009) § 54-47aa. In their original briefs and arguments to this court, the parties focused primarily on whether the trial court properly granted the defendant's motions on the basis of its conclusion that the state obtained the prospective and historical CSLI in violation of § 54-47aa, and that suppression of the records was the appropriate remedy. Following oral argument, however, this court stayed the appeal pending the decision of the United States Supreme Court in Carpenter and ordered the parties to submit supplemental briefs concerning the relevance of that decision to this appeal. In light of the court's holding in Carpenter, we conclude that, because the state obtained the defendant's historical CSLI solely on the basis of a reasonable and articulable suspicion, rather than on a warrant supported by probable cause, the records were obtained in violation of the defendant's fourth amendment rights. We further conclude that the trial court properly determined that suppression of both the historical and prospective CSLI—which the state concedes it obtained in violation of § 54-47aa—was the appropriate remedy. Finally, we conclude that the trial court properly rejected the state's reliance on the inevitable discovery doctrine. Accordingly, we affirm the judgments of the trial court.")

• Posted in:
• Criminal Law & Procedure,
• Recent Opinions

Thursday, March 28th

• Posted in:
• Library Notices

The 2019 edition of Child Visitation Actions in Connecticut has been posted to our research guides page.

• Posted in:
• FYI,
• Legal Research,
• Self-Help

The Connecticut Law Journal, Volume LXXX, No. 39, for March 26, 2019 is now available.

Contained in the issue is the following:

• Table of Contents
• Volume 187 Conn. App. Replacement Pages 902 - 902
• Volume 331: Connecticut Reports (Pages 201 - 239)
• Volume 331: Orders (Pages 906 - 909)
• Volume 331: Cumulative Table of Cases Connecticut Reports
• Volume 188: Connecticut Appellate Reports (Pages 670 - 892)
• Volume 188: Memorandum Decisions (Pages 901 - 902)
• Volume 188: Cumulative Table of Cases Connecticut Appellate Reports
• Miscellaneous Notices
• Notices of Connecticut State Agencies

• Posted in:
• Connecticut Law Journal,
• Recent Opinions

SC20157 - State v. Davis (Criminal possession of pistol; carrying pistol without permit; conditional plea of nolo contendere; "The sole issue in this appeal is whether, under Navarette v. California, 572 U.S. 393, 134 S. Ct. 1683, 188 L. Ed. 2d 680 (2014), the trial court properly denied a motion to suppress evidence discovered by the police during the forcible detention of the defendant, Quentine L. Davis, pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), on the basis of an anonymous telephone tip regarding "a young man that has a handgun." After the police detained the defendant, they saw him drop an object in a garbage can, a subsequent search of which revealed a handgun. The defendant was arrested and charged with, inter alia, criminal possession of a pistol in violation of General Statutes § 53a-217c and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). The defendant moved to suppress the handgun, claiming that the evidence resulting from the search of the garbage can was tainted as the result of his unlawful seizure. Specifically, the defendant claimed that the anonymous tip did not give rise to a reasonable suspicion that he was engaged in, or was about to be engaged in, criminal activity, and, therefore, that his detention violated his right to be free from unreasonable seizures under the fourth amendment to the United States constitution and article first, §§ 7 and 9, of the Connecticut constitution. The trial court denied the motion to suppress. Thereafter, the defendant entered a conditional plea of nolo contendere to the gun charges pursuant to General Statutes § 54-94a. See also footnote 4 of this opinion. The trial court accepted that plea and rendered a judgment of conviction. This appeal followed. We agree with the defendant's claim that his detention violated his fourth amendment rights under Navarette. Accordingly, we conclude that the trial court improperly denied the motion to suppress and reverse the judgment of the trial court.")

• Posted in:
• Criminal Law & Procedure,
• Recent Opinions

AC41709 - In re Avia M. ("The respondent mother appeals from the judgment of the trial court terminating her parental rights with respect to her daughter, Avia M. (child). On appeal, the respondent claims that the trial court improperly concluded that the petitioner, the Commissioner of Children and Families, proved by clear and convincing evidence that (1) the Department of Children and Families made reasonable efforts to reunify her, (2) she was unable or unwilling to achieve the requisite degree of personal rehabilitation, and (3) it was in the child’s best interest to terminate her parental rights. We affirm the judgment of the trial court.")

• Appendix

• Posted in:
• Juvenile Law,
• Recent Opinions

AC40957 - Matthew C. v. Commissioner of Children & Families (Administrative appeal; child neglect; "The plaintiff, Matthew C., appeals from the judgment of the trial court dismissing his administrative appeal following a decision by the defendant, the Commissioner of Children and Families, denying him a hearing to challenge the defendant's decision to substantiate allegations that he neglected his two minor children. The plaintiff avers that the trial court erred by (1) deciding the plaintiff's appeal on a basis not decided by the defendant's administrative hearing officer, (2) declining to equate § 22-12-4 of the policy manual (policy manual) of the Department of Children and Families (department), as derived from § 17a-101k-7 of the department's regulations, with the doctrine of collateral estoppel, (3) dismissing his appeal from the denial of his request for a substantiation hearing irrespective of whether § 22-12-4 of the policy manual and collateral estoppel are equivalent, and (4) violating his right to fundamental fairness by dismissing his appeal after denying him a substantiation hearing. We affirm the judgment of the trial court. ")

• Posted in:
• Administrative Appeal Law,
• Recent Opinions

AC41198 - A1Z7, LLC v. Dombek (Unjust enrichment; application for prejudgment remedy; whether trial court properly concluded that statute (47a-26b) awarding use and occupancy payments in summary process actions did not prohibit recovery of retroactive use and occupancy payments in separate action; "General Statutes § 47a-26b permits a property owner in a summary process action to seek the fair rental value of the premises occupied by a defendant during the pendency of a summary process action. The central issue in this case is whether § 47a-26b provides the exclusive remedy and, therefore, preempts an owner's ability to seek payment from the occupier for unjust enrichment for the reasonable value of the premises occupied for a time period for which § 47a-26b would not permit an order of use and occupancy payments. Because the language of the statute does not plainly and unambiguously foreclose other common-law remedies such as unjust enrichment and an exercise of that common-law remedy would not conflict with the purpose of the statute, we conclude that it is not foreclosed.

The defendant . . . appeals from the judgment of the trial court granting a prejudgment remedy in favor of the plaintiff, A1Z7, LLC. On appeal, the defendant claims that the court erred in granting the plaintiff's application for a prejudgment remedy because (1) § 47a-26b prohibits the recovery of use and occupancy payments in this action, (2) the prior pending action doctrine is a bar, and (3) res judicata and collateral estoppel warranted dismissal of the application. We disagree and, accordingly, affirm the judgment of the trial court.")

• Posted in:
• Contract Law,
• Landlord / Tenant Law,
• Recent Opinions

AC41410 - Melendez v. Spin Cycle Laundromat, LLC (Negligence; "The plaintiff, Zaida Melendez, appeals from the judgment of the trial court denying her motion to set aside the jury verdict rendered in favor of the defendant, Spin Cycle Laundromat, LLC. On appeal, the plaintiff claims that the trial court erred in (1) allowing the defendant to present evidence of the condition of the laundry folding table prior to its collapse, (2) allowing the defendant to question the plaintiff regarding her disability, and (3) denying the motion to set aside the verdict. We affirm the judgment of the trial court.")

• AC41410 Appendix - Melendez v. Spin Cycle Laundromat, LLC

• Posted in:
• FYI,
• Recent Opinions,
• Tort Law

SC19885 - State v. Fernando V. (Sexual assault second degree; risk of injury to child; certification from Appellate Court; "This is a certified criminal appeal from an Appellate Court decision reversing a judgment of conviction arising out of allegations by the complainant, B, that her stepfather, the defendant Fernando V., sexually assaulted her repeatedly over a period of years while she was in middle school and high school. The Appellate Court reversed the judgment of conviction on the ground that the trial court improperly precluded the defendant from calling the complainant's longtime boyfriend, P, as a witness regarding his observations of certain aspects of B's behavior that the state's expert witness had testified were common symptoms of child sexual assault. See State v. Fernando V., 170 Conn. App. 44, 68–69, 153 A.3d 701 (2016). The Appellate Court concluded that the improper exclusion of P's testimony was not harmless because the evidence may have helped "to show that B failed to exhibit behaviors often attributed to sexual assault victims," which could have "dissuaded the jury from believing B's story generally . . . ." Id., 68. We affirm the judgment of the Appellate Court.")

• SC19885 Dissent - State v. Fernando V.

AC37826 - State v. Simmons (Assault in first degree; criminal possession of pistol or revolver; carrying pistol without permit; "The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (5), criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c (a) (1), and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). On appeal, the defendant claims, in his initial brief, that the prosecutor committed improprieties during closing argument that deprived him of his right to a fair trial, including, among other things, suggesting to the jury that it could consider as substantive evidence a prior statement of Harris that was admitted at trial only for impeachment purposes, in which he identified the defendant as his assailant. We later granted the defendant permission to file a supplemental brief addressing an additional claim of prosecutorial impropriety, namely, whether the defendant's right to due process was violated by the state's failure to disclose to him, prior to trial, certain exculpatory evidence relevant to the veracity of the detective who took a statement from the defendant. See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

After oral argument before this court, and on the basis of our review of the record, we ordered the parties, sua sponte, to file additional supplemental briefs addressing an unpreserved claim of error not raised by the parties, namely, "(1) whether the state's agreement not to prosecute George Harris for any future acts of perjury committed while testifying for the state at the defendant's trial constituted plain error because it violates the public policy of this state against immunizing perjured testimony; see General Statutes § 54-47a; see also State v. Giraud, 258 Conn. 631, 634–35, 783 A.2d 1019 (2001); and (2) if so, whether such error was structural error or subject to harmless error analysis." Each party filed a supplemental brief. In its brief, the state conceded that its grant of immunity to Harris was improper. We later asked the parties to submit additional supplemental briefs addressing whether this court should exercise its supervisory authority to reverse the conviction. Because we exercise our supervisory powers to order a new trial for the defendant on the basis of the improper grant of immunity to Harris, we do not reach the merits of the remaining claims raised by the defendant.")

• AC37826 Concurrence - State v. Simmons

• Posted in:
• Criminal Law & Procedure,
• Recent Opinions

AC40997 - De Almeida-Kennedy v. Kennedy ("In this postdissolution marital dispute, the defendant, James Kennedy, appeals from the judgment of the trial court in connection with certain postjudgment orders entered in favor of the plaintiff, Fatima K. De Almeida-Kennedy. On appeal, the defendant claims that the court improperly (1) denied in part his motion for modification, (2) granted in part the plaintiff's motion for clarification, in which she requested, inter alia, that the court address her prior motion for attorney's fees, and (3) granted the plaintiff's motion for attorney's fees and expenses pending appeal. We reverse the judgment of the trial court with respect to the defendant's second claim but affirm the judgment in all other respects.")

AC39771 - Firstenberg v. Madigan ("This appeal stems from a custody action between the plaintiff, Olivia Anna Firstenberg, and the defendant, Matthew C. Madigan, regarding their minor child. The appellant, Eric Firstenberg (appellant), the child's maternal grandfather, appeals from the judgment of the trial court denying his motion to intervene in the custody action under General Statutes § 46b-57. On appeal, the appellant raises a number of claims, including that the court improperly interpreted his motion seeking visitation pursuant to General Statutes § 46b-59 as a motion to intervene seeking custody. We conclude that even if we assume, arguendo, that the appellant's motion to intervene was in fact a petition for visitation, as the appellant contends, he has failed to satisfy the threshold jurisdictional requirements under § 46b-59. Accordingly, we reverse the judgment of the court and remand the case with direction to dismiss the petition for visitation for lack of subject matter jurisdiction.")

• Posted in:
• Family Law,
• Recent Opinions