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STATE OF CONNECTICUT v. STEVEN
K. STANLEY
(AC 35600)
Beach, Keller and Mihalakos, Js.
Argued May 18—officially released November 3, 2015
(Appeal from Superior Court, judicial district of
Hartford, geographical area number twelve, Fuger, J.
[motion to disqualify]; C. Taylor, J. [motions to strike,
dismiss, for mistrial].)
Deborah G. Stevenson, assigned counsel, for the
appellant (defendant).
Bruce R. Lockwood, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Anthony J. Spinella, assistant state’s
attorney, for the appellee (state).
Opinion
BEACH, J. The defendant, Steven K. Stanley, appeals
from the judgment of conviction of 100 counts of crimi-
nal violation of a protective order in violation of General
Statutes § 53a-223,1 stalking in the first degree in viola-
tion of General Statutes § 53a-181c, and threatening in
the second degree in violation of General Statutes § 53a-
62. On appeal, he claims that (1) his conviction of viola-
tion of a protective order was based on insufficient
evidence, (2) discovery violations regarding his and the
victim’s cell phone records deprived him of his constitu-
tional rights, (3) the trial court erred in declining to
suppress or to strike his and the victim’s cell phone
records, and (4) his constitutional rights were violated
when the same judge who had signed the warrant for
his arrest also denied his motion to suppress evidence
that had formed, in part, the basis for the application
in support of the arrest warrant. We are not persuaded
and, accordingly, affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. The defendant and the victim2 had had a dating
relationship. On February 10, 2012, the victim called
the police from a bar and reported that she feared for
her safety because the defendant was making threaten-
ing phone calls to her from the parking lot of the bar.
After Officer Jason Guerrera of the East Hartford Police
Department arrived, the defendant was detained in the
vicinity of Guerrera’s police cruiser, awaiting a ride
from his son. He made threatening phone calls to the
victim while so detained. Guerrera overheard the calls.
The defendant was arrested and handcuffed.
Following this incident, on February 14, 2012, the
court issued a protective order that required the defen-
dant ‘‘not [to] contact [the victim] in any manner, includ-
ing by written, electronic or telephone contact . . . .’’
Despite this order, the defendant phoned the victim
between forty and ninety times a day for a period of
time. On at least one occasion the defendant offered
to buy the victim a drink at a bar that she frequented.
On March 18, 2012, the victim called the police to
report that the defendant was violating the protective
order by telephoning her constantly. East Hartford
police Officer Robert A. Vanacore responded by going
to her residence and taking her statement. Later that
day, the victim called the police a second time; she then
reported that the defendant had appeared in front of
her house, and, ‘‘burn[ing] rubber,’’ drove his motorcy-
cle away at a high rate of speed. The victim’s roommate,
Gene Lavigne, also gave a statement to the police, con-
firming that the defendant had driven his motorcycle
by the house. While police were interviewing the victim,
the defendant called and spoke to her three times.3
The victim put the cell phone on speaker so that East
Hartford police Officer Daniel Zaleski and Vanacore4
were able to overhear the calls.
Vanacore sought and obtained the defendant’s phone
records. After reviewing the records and discovering
that approximately 1750 phone calls from the defen-
dant’s cell phone to the victim’s cell phone had been
made between February 14, 2012, and March 24, 2012,
Vanacore requested an arrest warrant for the defendant.
The state originally charged the defendant with 372
counts, but later filed an amended information that
included 102 counts, specifically, 100 counts of criminal
violation of a protective order, one count of stalking in
the first degree, and one count of threatening in the
second degree.
The defendant chose to represent himself, and follow-
ing a trial, the jury found the defendant guilty of all 102
counts. The court sentenced the defendant to eighteen
years imprisonment with twelve years special parole
and imposed a standing criminal protective order. This
appeal followed.
I
The defendant claims that his conviction of 100
counts of violation of a protective order was not sup-
ported by sufficient evidence. The defendant admitted
that the calls were made from his cell phone, but he
argues that the state failed to prove that he personally
made the phone calls to the victim. He argues that
the number on her caller identification function was
blocked. The victim testified that she recognized the
defendant’s voice on two occasions only. The state
argues that there was sufficient evidence to sustain the
defendant’s conviction in that (1) the victim’s phone
records listed the calls as having been made from the
defendant’s cell phone number; (2) the victim identified
the defendant’s voice on several occasions; (3) the
defendant showed consciousness of guilt by writing to
his sons to ask them to testify that they made the phone
calls; and (4) the defendant demonstrated other intim-
idating and harassing behavior that was consistent with
the repeated phone calls. We agree with the state that
there was sufficient evidence to sustain the defendant’s
conviction of violation of a protective order. Although
there was direct evidence that the defendant made only
a limited number of the calls, there was circumstantial
evidence to support the conclusion that the defendant
made the calls as charged in the amended information.5
‘‘In reviewing the sufficiency of the evidence to sup-
port a criminal conviction we apply a two-part test.
First, we construe the evidence in the light most favor-
able to sustaining the verdict. Second, we determine
whether upon the facts so construed and the inferences
reasonably drawn therefrom the [jury] reasonably could
have concluded that the cumulative force of the evi-
dence established guilt beyond a reasonable doubt.
. . .
‘‘We note that the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense, [but] each of the
basic and inferred facts underlying those conclusions
need not be proved beyond a reasonable doubt. . . .
If it is reasonable and logical for the jury to conclude
that a basic fact or an inferred fact is true, the jury is
permitted to consider the fact proven and may consider
it in combination with other proven facts in determining
whether the cumulative effect of all the evidence proves
the defendant guilty of all the elements of the crime
charged beyond a reasonable doubt. . . .
‘‘Moreover, it does not diminish the probative force
of the evidence that it consists, in whole or in part, of
evidence that is circumstantial rather than direct. . . .
It is not one fact, but the cumulative impact of a multi-
tude of facts which establishes guilt in a case involving
substantial circumstantial evidence. . . . In evaluating
evidence, the [jury] is not required to accept as disposi-
tive those inferences that are consistent with the defen-
dant’s innocence. . . . The [jury] may draw whatever
inferences from the evidence or facts established by
the evidence it deems to be reasonable and logical. . . .
Our review is a fact based inquiry limited to determining
whether the inferences drawn by the jury are so unrea-
sonable as to be unjustifiable.’’ (Internal quotation
marks omitted.) State v. Binnette, 86 Conn. App. 491,
496–97, 861 A.2d 1197 (2004), cert. denied, 273 Conn.
902, 868 A.2d 745 (2005).
In support of the charges, the state presented the
testimony of the victim, who received the calls, police
officers who overheard one of the threatening phone
calls, and the victim’s phone records. The jury had
before it evidence of more than 1750 calls made from
the defendant’s cell phone to the victim’s cell phone.
The jury also heard evidence regarding the failed rela-
tionship between the victim and the defendant, and his
previously threatening behavior. The victim identified
his voice on three phone calls made on March 18, 2012.6
The defendant also wrote letters to family members
advising them to testify that they had made phone calls
to the victim. The jury reasonably could have inferred
from this evidence that it was the defendant himself
who made all of the phone calls reflected in the victim’s
phone records. None of the defendant’s witnesses7 testi-
fied that they made many of the calls from the defen-
dant’s cell phone, as he contended.8 We conclude that
the defendant’s conviction of violation of a protective
order was based on sufficient evidence.
II
The defendant claims that the state failed to provide
him with his phone records and the victim’s phone
records in a timely manner and that he therefore was
deprived of (1) his right to confront the witnesses
against him and (2) his right to present a defense.9
Additional facts are helpful to the resolution of the
defendant’s claims. The police obtained the defendant’s
phone records at the outset of the investigation. The
defendant moved for discovery, including requests for
‘‘all facts of [the] arrest’’ and ‘‘all evidence.’’10 The court,
C. Taylor, J., granted the motions on February 21, 2012,
and May 8, 2012. The defendant subsequently made
several motions for the court to order the state to com-
ply with the prior orders and turn over several items,
including relevant phone records relating to both the
defendant and the victim. On August 17, 2012, at a
hearing before Judge Fuger, the state said that it did
not have either the defendant’s phone records or the
victim’s phone records, but that if it did obtain them,
it would disclose them to the defendant. Judge Fuger
said that if the state attempted to introduce the records
without having first provided them to the defendant,
he would not allow them into evidence. The defendant
eventually obtained at least a substantial part, if not
all, of his phone records. The state reported that it did
not receive the victim’s phone records until the first
day of the defendant’s trial.
On the first day of trial, the state introduced only the
victim’s phone records. The court admitted the records
as a full exhibit on the first day of trial, but the records
were not published to the jury until the next day so
that copies could be provided to the defendant for his
review overnight. The defendant did not object to this
arrangement, and did not ask for a continuance to allow
for more time to review the victim’s phone records.
The defendant then used the victim’s phone records in
an attempt to impeach her on the third day of trial.
The state did not seek to enter the defendant’s phone
records into evidence.
A
The defendant argues that the state’s failure to dis-
close the victim’s phone records resulted in a denial of
his right to confrontation under Crawford v. Washing-
ton, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004).11
The defendant raises this claim, for the first time, on
appeal and requests review pursuant to State v. Golding,
213 Conn. 233, 239–40, 567 A.2d 823 (1989).12 ‘‘[A] defen-
dant 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 magni-
tude 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. In the absence of
any one of these conditions, the defendant’s claim will
fail. . . . The defendant also bears the responsibility
of demonstrating that his claim is indeed a violation of
a fundamental constitutional right. Patently nonconsti-
tutional claims that are unpreserved at trial do not war-
rant special consideration simply because they bear a
constitutional label.’’ (Citations omitted; emphasis in
original; footnote omitted.) Id.; see In re Yasiel R., 317
Conn. 773, 781, A.3d (2015) (modifying Gold-
ing’s third prong).
The defendant argues that the phone records were
testimonial in nature because they were compiled solely
for use against him at trial, and that they were offered
to prove the truth of the matter asserted. Because he
was not able to cross-examine the maker of the phone
records prior to or during trial in violation of his rights
under the confrontation clause, he argues, the phone
records should not have been admitted into evidence.
We conclude that the admission of the victim’s phone
records into evidence did not implicate a sixth amend-
ment right and, thus, the defendant’s claim fails
under Golding.
‘‘Answering the threshold question in a Crawford
analysis—whether the statements in question were tes-
timonial in nature—also answers whether the defen-
dant has met the burden presented under Golding’s
second prong, which requires a claim of constitutional
magnitude.’’ State v. Jones, 140 Conn. App. 455, 469, 59
A.3d 320 (2013), aff’d, 314 Conn. 410, 102 A.3d 694
(2014). ‘‘In Crawford v. Washington, [supra, 541 U.S.
36], the [United States] Supreme Court substantially
revised its approach to confrontation clause claims.
Under Crawford, testimonial hearsay is admissible
against a criminal defendant at trial only if the defendant
had a prior opportunity for cross-examination and the
witness is unavailable to testify at trial. . . . In the
wake of Crawford, therefore, the preliminary step in
any confrontation clause analysis is the determination
of whether the subject statements are testimonial hear-
say. . . . Our Supreme Court has noted that, although
there is no comprehensive definition of testimonial, it
is clear that much of the [United States] Supreme
Court’s and our own jurisprudence applying Crawford
largely has focused on the reasonable expectation of
the declarant that, under the circumstances, his or her
words later could be used for prosecutorial purposes.’’
(Citation omitted; internal quotation marks omitted.)
State v. Young, 157 Conn. App. 544, 565, 117 A.3d 944,
cert. denied, 317 Conn. 922, 118 A.3d 549 (2015).
There was nothing to suggest at trial that the victim’s
phone records were other than business records of
the telephone company. Section 8-4 of the Connecticut
Code of Evidence provides in relevant part: ‘‘(a) . . .
Any writing or record, whether in the form of an entry
in a book or otherwise, made as a memorandum or
record of any act, transaction, occurrence or event,
shall be admissible as evidence of the act, transaction,
occurrence or event, if the trial judge finds that it was
made in the regular course of any business, and that it
was the regular course of the business to make the
writing or record at the time of the act, transaction,
occurrence or event or within a reasonable time there-
after. (b) . . . The writing or record shall not be ren-
dered inadmissible by (1) a party’s failure to produce
as witnesses the person or persons who made the writ-
ing or record, or who have personal knowledge of the
act, transaction, occurrence or event recorded or (2)
the party’s failure to show that such persons are unavail-
able as witnesses. Either of such facts and all other
circumstances of the making of the writing or record,
including lack of personal knowledge by the entrant or
maker, may be shown to affect the weight of the evi-
dence, but not to affect its admissibility.’’ (Internal quo-
tation marks omitted.) See also General Statutes § 52-
180; United States v. Yeley-Davis, 632 F.3d 673, 679
(10th Cir.) (cell phone records not testimonial in nature;
thus, no confrontation clause violation occurred), cert.
denied, U.S. , 131 S. Ct. 2172, 179 L. Ed. 2d 951
(2011); State v. Hood, 135 Ohio St. 3d 137, 145, 984
N.E.2d 1057 (2012) (‘‘[e]ven when cell-phone compa-
nies, in response to a subpoena, prepare types of
records that are not normally prepared for their custom-
ers, those records still contain information that cell-
phone companies keep in the ordinary course of their
business’’). Because there was nothing to suggest that
the automated compilation of records of all customers’
calls was other than standard business routine, the
records were not testimonial in nature and Crawford
did not apply. See Crawford v. Washington, supra, 541
U.S. 56. Accordingly, the claim fails under the second
prong of Golding.
B
The defendant argues that his right to present a com-
plete defense pursuant to the sixth amendment to the
United States constitution,13 as applied to the states
through the fourteenth amendment, was violated by the
prosecutor’s failure to disclose the phone records to
him in a timely fashion.14 The defendant argues that
he wanted ‘‘to compare the two sets of records, to
determine if the days and times corresponded, to deter-
mine whether he had any alibi defense for any of the
days and times,15 and for impeachment of the state’s
witnesses.’’16 (Footnote added.) We are not persuaded.
The record indicates that the state did not have the
victim’s phone records until the morning of the first
day of trial. The defendant had the opportunity to
review them overnight before they were published to
the jury. At the time of the entry of the victim’s phone
records into evidence, the following colloquy took
place:
‘‘The Court: All right. Then, anything else on the issue
of the phone records?
‘‘[The Defendant]: I guess some of that file will be
turned over to me.
‘‘The Court: All right. Counselor, have you made a
copy of it?
‘‘[The Prosecutor]: I can have it done, Judge.
‘‘The Court: All right. Then—I’m sorry?
‘‘[The Defendant]: I would just like it so that I can
check each and every number correspondence with
mine to see who her phone went to.
‘‘The Court: All right. What we will do—how many
more questions do you have for this witness? . . .
Then, what I will do, then, based on the arguments that
were presented to me by the defense, I will—the records
can be marked in this matter as full exhibits. The defen-
dant has stated no grounds for them not to be. However,
with that said, I will order that the state make copies
of the records and give them to the gentleman so that
he can take them back with him today, so he can review
those records and then we will go from there.’’
The defendant did not object to this arrangement.
The basis for the defendant’s argument on appeal is
that ‘‘[p]recluding the defendant from obtaining the
complete phone records, in a timely fashion prior to
court, severely prejudiced the defendant . . . .’’ He
does not deny that he obtained the phone records;
rather, he now argues on appeal that his defense was
compromised by the timing. The defendant points to
no concrete way in which his defense was compro-
mised; his principal defense was a claim that, although
the calls were made from his phone, the state had not
proved that he had made the calls. As noted previously,
the defendant used the victim’s records to try to
impeach her. Significantly, he could have requested a
continuance, but he did not. See State v. Lage, 141 Conn.
App. 510, 526–27, 61 A.3d 581 (2013) (‘‘[o]ur Supreme
Court expressly has declined to impose on the trial
courts the duty to order a continuance sua sponte’’
[internal quotation marks omitted]); Pasiakos v. BJ’s
Wholesale Club, Inc., 93 Conn. App. 641, 645, 889 A.2d
916, cert. denied, 277 Conn. 929, 896 A.2d 101 (2006).
We conclude that the defendant’s right to present a
defense was not violated.
III
The defendant claims that the court abused its discre-
tion by declining to suppress or, sua sponte, to strike
(1) his phone records and (2) the victim’s phone
records. We are not persuaded.
In May, 2012, the defendant filed a motion to suppress
his phone records and the victim’s phone records pursu-
ant to General Statutes § 54-41m,17 which concerns wire-
tapping and electronic surveillance. The court did not
rule on this motion. The state did not offer the defen-
dant’s phone records into evidence. The victim’s phone
records were admitted into evidence.
During trial, Vanacore, called by the state, testified
that the victim consented to Vanacore’s overhearing a
cell phone call between the defendant and the victim.
The victim activated the speakerphone option, and
Vanacore heard the conversation. Vanacore testified
that the code, *67, appeared on the screen, indicating
that someone was ‘‘trying to block their phone number
from the sender to the receiving phone calls.’’ He further
testified that the defendant’s phone records reflected
approximately 1750 phone calls from the defendant to
the victim, that the *67 code preceded the defendant’s
phone number on the records of his calls to the victim,
and that the code indicated that the defendant had tried
to block his number.
In the course of his investigation, Vanacore obtained
the defendant’s phone records pursuant to the provi-
sions of General Statutes § 54-47aa, which authorizes
law enforcement officers to obtain records from tele-
communication companies.18 The defendant objected
to the admission of the records into evidence because
he had not been notified of the police access to his
phone records within forty-eight hours of their disclo-
sure to police in violation of § 54-47aa (d).19 The state
responded that it was not sure what the defendant was
requesting in his objection and acknowledged that § 54-
47aa had not been complied with. It further argued that
a search warrant was not constitutionally required for
the defendant’s phone records because there is no rea-
sonable expectation of privacy in one’s phone records.
The state questioned what the consequences might be
if § 54-47aa (d) were not complied with, but concluded
that the inquiry was not material because it was not
offering the defendant’s phone records into evidence
in any event. The defendant then requested that ‘‘the
phone records . . . be stricken from the record.’’ The
prosecutor stated that he was not offering the defen-
dant’s phone records into evidence. In response, the
court stated, ‘‘Well, if he is not intending on offering
them into evidence, then I don’t see an issue here,
presently.’’ The defendant agreed: ‘‘I don’t either, Your
Honor.’’ When the defendant raised the issue of the
victim’s phone records, the court stated that he had
no standing to assert a claim as to another person’s
phone records.
A
The defendant argues that the court abused its discre-
tion in failing to ‘‘suppress and strike the defendant’s
phone records and testimony about them, in violation
of the law of the case and his right to due process, a
fair trial, and to present a defense.’’ He argues that the
phone records should have been suppressed because
the police violated § 54-47aa (d) by failing to notify him
within forty-eight hours of the issuance of the ex parte
order permitting the police to obtain the phone records.
He also argues that the court erred in admitting Vana-
core’s testimony regarding facts contained in the phone
records. We are not persuaded.
The defendant cannot prevail on his claim that the
court erred in declining to grant his motion to sup-
press.20 The court did not rule on the motion to suppress.
The lack of a ruling on the motion to suppress has no
bearing on this appeal because, first, the motion was
made pursuant to the wiretapping statute and the defen-
dant’s claims on appeal pertain to notice under § 54-
47aa. Second, the state chose not to offer the defen-
dant’s phone records into evidence. The claimed error
did not occur.
The defendant also argues that the court erred in not
striking sua sponte the portion of Vanacore’s testimony
that pertained to the defendant’s phone records. This
argument is slightly different from the claim regarding
the motion to suppress. The claim was not preserved21
and fails under the second prong of Golding because
it is simply evidentiary in nature. ‘‘[T]he admissibility
of evidence is a matter of state law and unless there is
a resultant denial of fundamental fairness or the denial
of a specific constitutional right, no constitutional issue
is involved.’’ (Internal quotation marks omitted.) State
v. Dews, 87 Conn. App. 63, 68, 864 A.2d 59, cert. denied,
274 Conn. 901, 876 A.2d 13 (2005).
B
The defendant also claims, with regard to the victim’s
phone records, that the court erred in not granting his
motion to suppress and erred in not striking the victim’s
phone records from evidence. The defendant argues
that the court, C. Taylor, J., erred in admitting the
victim’s phone records into evidence because during a
pretrial proceeding, the court, Fuger, J., had stated,
when discussing the defendant’s discovery requests for
the phone records, that ‘‘I will tell you that come trial,
if this case goes to trial, that if any of these documents
that fit within this description are attempted to be used
and you have not . . . had them previously disclosed
to you, then if you move to strike them from evidence,
that will be granted.’’ The defendant argues that the
admission of the victim’s phone records violates the
law of the case doctrine, and his rights to due process, a
fair trial and to present a defense. We are not persuaded.
The motion to suppress sought to suppress the vic-
tim’s phone records on the basis of the wiretapping
statute, and not the statute being argued on appeal,
which is the notice provisions of § 54-47aa. Accordingly,
the claim regarding § 54-47aa is unpreserved. The defen-
dant requests review pursuant to State v. Golding,
supra, 213 Conn. 239–40, the plain error doctrine; Prac-
tice Book § 60-5; and review under the exercise of our
supervisory powers over the administration of justice.
He argues that his rights to due process, a fair trial,
and to present a defense were violated. The defendant
does not have standing to raise constitutional issues
regarding the admission of the phone records of a third
party.22 ‘‘[A] party is precluded from asserting the consti-
tutional rights of another.’’ (Internal quotation marks
omitted.) State v. Iban C., 275 Conn. 624, 665, 881 A.2d
1005 (2005).
The defendant’s claim as to the court’s denial of his
motion to strike the victim’s phone records from evi-
dence fails for similar reasons. The defendant cannot
assert the constitutional rights of the victim. Addition-
ally, there is nothing in § 54-47aa to suggest that the
defendant is to receive notice regarding a third party’s
phone records. Rather, § 54-47aa (d) provides in rele-
vant part: ‘‘Not later than forty-eight hours after the
issuance of an order pursuant to subsection (b) of this
section, the law enforcement official shall mail notice of
the issuance of such order to the subscriber or customer
whose call-identifying information or basic sub-
scriber information is the subject of such order . . . .’’
(Emphasis added.) The fact that the victim’s phone
records show that she received calls from the defen-
dant’s cell phone does not, in itself, make the statute
applicable. We once again stress that there never was
a dispute at trial that the calls came from his cell phone.
Last, the defendant argues that in denying the motion
to strike, Judge Taylor violated the law of the case
doctrine because Judge Fuger commented that a motion
to strike would be granted if the phone records were
offered into evidence and the defendant had not had
the records disclosed to him. ‘‘The law of the case
doctrine provides that [w]here a matter has previously
been ruled upon interlocutorily, the court in a subse-
quent proceeding in the case may treat that decision
as the law of the case, if it is of the opinion that the
issue was correctly decided, in the absence of some
new or overriding circumstance.’’ (Internal quotation
marks omitted.) Signore v. Signore, 110 Conn. App.
126, 133, 954 A.2d 245 (2008). Under the law of the case
doctrine, ‘‘it is well established that a trial judge need
not follow the decisions of another judge made at an
earlier stage of the proceedings. . . . A judge may find
it appropriate to rely upon a previous ruling. But the
law of the case is not an inflexible principle and in a
proper situation a judge may modify or depart from an
interlocutory ruling of another coordinate magistrate,
in whole or in part.’’ (Citations omitted.) State v. Rogers,
199 Conn. 453, 459, 508 A.2d 11 (1986). The law of the
case doctrine is not implicated because, first, Judge
Taylor’s ruling was not necessarily inconsistent with
Judge Fuger’s comment: the victim’s phone records
were disclosed to the defendant and the defendant had
time to review them. Second, even if the rulings were
inconsistent, ‘‘a trial judge need not follow the decisions
of another judge made at an earlier stage of the proceed-
ings.’’ Id.
IV
The defendant claims that his rights were violated in
a number of ways when the same judge who had signed
his arrest warrant, which was based in part on the phone
records at issue, also denied his motion to suppress
the phone records. He claims that this circumstance
violated Practice Book § 41-17, canon 3 of the Code
of Judicial Conduct, and his rights under the federal
constitution23 to a fair trial and to due process. We
disagree.
On May 15, 2012, the defendant filed a motion seeking
to disqualify the court, Fuger, J., pursuant to Practice
Book § 41-17 from presiding over motions relating to
the phone records because Judge Fuger had signed his
arrest warrant. The court, Fuger, J., denied the motion
for disqualification.
The defendant cannot prevail on his claim that Prac-
tice Book § 41-17 was violated because that rule of
practice is inapplicable. Section 41-17 provides: ‘‘A judi-
cial authority who signed any warrant or order for the
seizure of property, testimony or evidence or for the
interception of any communications shall not preside
at any hearing on a motion made pertaining to such
warrant or order.’’ Judge Fuger did not sign a search
warrant, nor did he rule on the validity of such a war-
rant. He did sign an arrest warrant, but no claim is
made that Judge Fuger ruled on any motion or order
directly attacking the arrest warrant. The policy behind
§ 41-17 also was not broached. See State v. Canales,
281 Conn. 572, 598–99, 916 A.2d 767 (2007).
The defendant’s claims under the federal constitution
are unpreserved. The defendant requests review pursu-
ant to State v. Golding, supra, 213 Conn. 239–40. The
defendant’s claim fails under the second prong of Gold-
ing, which requires that the claim be of constitutional
magnitude. Id., 239. ‘‘The United States Supreme Court
consistently has held that a judge’s failure to disqualify
himself or herself will implicate the due process clause
only when the right to disqualification arises from actual
bias on the part of that judge. . . . [It has stated that]
the requirements of [federal] due process are less rigor-
ous than those of the Code of Judicial Conduct, which
mandates both impartiality and the appearance of
impartiality. . . . [M]ost questions concerning a
judge’s qualifications to hear a case are not constitu-
tional ones, because the [d]ue [p]rocess [c]lause of the
[f]ourteenth [a]mendment establishes a constitutional
floor, not a uniform standard. . . . Instead, these ques-
tions are, in most cases, answered by common law,
statute, or the professional standards of the bench and
bar. . . . But the floor established by the [d]ue [p]ro-
cess [c]lause clearly requires a fair trial in a fair tribunal
. . . before a judge with no actual bias against the
defendant or interest in the outcome of his particular
case. . . . [C]ertainly only in the most extreme of cases
would disqualification on [the basis of allegations of
bias or prejudice] be constitutionally required . . . .
[The] due process clause generally [is] interpreted to
require only lack of actual bias, not lack of appearance
of bias.’’ (Citations omitted; emphasis omitted; internal
quotation marks omitted.) State v. Canales, supra, 281
Conn. 594–95. The defendant does not allege actual
bias, nor is there any suggestion of actual bias in the
record. His claim fails under the second prong of Gold-
ing because it is not of constitutional magnitude.24
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-223 (a) provides in relevant part: ‘‘A person is
guilty of criminal violation of a protective order when an order issued
pursuant to subsection (e) of section 46b-38c . . . has been issued against
such person, and such person violates such order.’’
We note that this subsection has been amended since the date of the
offense. See, e.g., Public Acts 2014, No. 14-173, § 5. Because that amendment
does not affect issues in this appeal, all references to § 53a-223 are to the
current revision of the statute.
2
In accordance with our policy of protecting the privacy interest of the
victim of a criminal violation of a protective order, we decline to identify
the victim or others through whom the victim’s identity may be ascertained.
3
The defendant entered into evidence a police report that documented
the March 18, 2012 cell phone calls: ‘‘Phone call #1 [the defendant] said ‘I’m
done’ and then hung up. Phone call #2 [the defendant] said ‘You just signed
your own death certificate’ and then hung up. Phone call #3 [the defendant]
said ‘Bitch why did you call the cops on me’ ‘Bitch’ ‘You are a snitch’ and
then was hung up on by [the victim].’’ Another police report recounted the
threat in the first phone call as, ‘‘you’re going down.’’
4
Vanacore overheard only the third cell phone call.
5
In the context of his argument that introduction of phone records violated
his sixth amendment right to confront witnesses; see part II A of this opinion;
the defendant mentions that the state, in its closing argument, mentioned
to the jury that there were many more phone calls in the victim’s phone
records than there were counts in the information. The defendant suggests
that this incongruity underscored the need for a witness to supply more
precision to the process of deciding who made the calls and that ‘‘the jury
could pick which [calls violated the protective order] using [the victim’s]
phone records.’’
The defendant did not directly claim that the discretion of the jury to
choose what calls to apply to specific counts constituted error. We note
that the information charged that the defendant made a number of calls on
several different days; the information did not allege specific times of day
that the calls were made. The records, on the other hand, identified specific
times that the calls were made. In the circumstances of this case, we find
no harm in the manner in which the state chose to proceed.
6
In the information, the defendant was charged with two violations of a
protection order on March 18, 2012, as well as a stalking and threatening.
7
When the defendant asked his mother whether she might have called
the victim from the defendant’s phone two or three times by accident, his
mother responded that she might have, although she did not remember.
The defendant’s brother also testified that their mother might have used
the defendant’s phone to call the victim.
8
The defendant also claims that the court erred in denying his posttrial
motion to dismiss and motion for a mistrial. The motions were based, in
part, on claims of insufficient evidence and failure to provide discovery.
The defendant cannot prevail on his arguments for the same reasons that
we conclude in part I of this opinion that there was sufficient evidence to
support the defendant’s conviction and in part II of this opinion that his
claims of discovery violations lack merit. The defendant also appears to
argue that the court erred by providing a purely conclusory analysis in
denying the motions, although he did not file a motion for articulation. See
Practice Book § 66-5.
9
The defendant also seems to argue that because the state was not sanc-
tioned for discovery violations, the state violated his rights to due process
and a fair trial. Whether the court imposes sanctions on the state does not
implicate the defendant’s constitutional rights. See, e.g., State v. Colon, 71
Conn. App. 217, 241, 800 A.2d 1268 (‘‘[w]here discovery concerns inculpatory
evidence, there exists no constitutional right to the disclosure of such evi-
dence and, therefore, the rules of the court regulate any such disclosure’’),
cert. denied, 261 Conn. 934, 806 A.2d 1067 (2002).
The defendant did not request sanctions pursuant to Practice Book § 40-
5, which provides in relevant part that ‘‘[i]f a party fails to comply with
disclosure as required under these rules, the opposing party may move the
judicial authority for an appropriate order. The judicial authority hearing
such a motion may enter such orders and time limitations as it deems
appropriate . . . .’’ The court, however, stated that ‘‘if this case goes to
trial [and] if any of these documents that fit within this description [of the
defendant’s and the victim’s phone records] are attempted to be used and
you have not . . . had them previously disclosed to you, then if you move
to strike them from evidence, that will be granted.’’
Further, we do not conclude that, in the circumstances of this case, the
more general due process right to a fair trial was violated. The defendant’s
own phone records, a copy of which was apparently disclosed to him prior
to trial, were not introduced into evidence, and he had the opportunity to
review the victim’s records during trial. Critically, he did not dispute that
a multitude of calls had been made from his phone to the victim’s phone.
10
The defendant filed a third motion for discovery, requesting the video
footage and audio recordings from the police car at the time of his arrest.
The request was granted by the court, Fuger, J., on March 7, 2012. That
motion does not specifically refer to the phone records.
11
We note that the state did not offer the defendant’s phone records into
evidence and, thus, Crawford v. Washington, supra, 541 U.S. 36, does not
apply to those records.
12
The defendant also requests reversal under the plain error doctrine;
Practice Book § 60-5; see State v. Domian, 235 Conn. 679, 692, 668 A.2d
1333 (1996) (plain error reserved for ‘‘truly extraordinary situations where
the existence of the error is so obvious that it affects the fairness and
integrity of and public confidence in the judicial proceedings’’ [internal
quotation marks omitted]). Our conclusion that there was no error pursuant
to Crawford precludes a conclusion of plain error.
The defendant further seeks review under our supervisory powers over
the administration of justice; see State v. Coward, 292 Conn. 296, 315, 972
A.2d 691 (2009) (reviewing court’s supervisory powers are an ‘‘extraordinary
remedy to be invoked only when circumstances are such that the issue at
hand, while not rising to the level of a constitutional violation, is nonetheless
of utmost seriousness, not only for the integrity of a particular trial but also
for the perceived fairness of the judicial system as a whole’’ [emphasis
omitted; internal quotation marks omitted]). This is not the type of extraordi-
nary situation that our supervisory powers may address.
13
‘‘The sixth amendment to the United States constitution provides in
relevant part: In all criminal prosecutions, the accused shall enjoy the right
. . . to be informed of the nature and cause of the accusation; to be con-
fronted with the witnesses against him; to have compulsory process for
obtaining witnesses in his favor, and to have the assistance of counsel for
his defense. The sixth amendment is in plain terms the right to present a
defense, the right to present the defendant’s version of the facts as well as
the prosecution’s to the jury so that it may decide where the truth lies. . . .
The sixth amendment right to present a defense is made applicable to
the states through the due process clause of the fourteenth amendment.’’
(Citation omitted; internal quotation marks omitted.) State v. Carpenter,
275 Conn. 785, 794 n.2, 882 A.2d 604 (2005), cert. denied, 547 U.S. 1025, 126
S. Ct. 1578, 164 L. Ed. 2d 309 (2006).
The defendant also claims his rights under article first of the Connecticut
constitution were violated. The defendant failed to provide a separate analy-
sis of his claim under the Connecticut constitution, and, accordingly, we
decline to afford it review. See State v. Geisler, 222 Conn. 672, 684–86, 610
A.2d 1225 (1992).
14
There was evidence of more than 1750 phone calls from the defendant
to the victim, but the state charged the defendant with only 100 counts of
violation of the protective order.
15
To the extent that the defendant argues that he was denied his right to
present a defense because the state did not identify the specific times of
the phone calls in the information, his claim is unpreserved because he
failed to file a motion for a bill of particulars. By failing to seek a bill of
particulars, he waived his constitutional claim and is ineligible for Golding
review. See State v. Bazemore, 107 Conn. App. 441, 455, 945 A.2d 987, cert.
denied, 287 Conn. 923, 951 A.2d 573 (2008). In any event, specific times
were referenced in records that he did review. There has been no showing
that anything prevented his direct access to his own records at any time.
16
It bears repeating that, contrary to his argument regarding a lack of
ability to impeach the state’s witnesses, the defendant actually used the
victim’s phone records to impeach her on the third day of trial.
17
General Statutes § 54-41m provides: ‘‘Any aggrieved person in any trial,
hearing or proceeding in or before any court, department, officer, agency,
regulatory body or other authority of the state of Connecticut, or of a political
subdivision thereof, may move to suppress the contents of any intercepted
wire communication, or evidence derived therefrom, on the grounds that
the communication was unlawfully intercepted under the provisions of this
chapter; the order of authorization or approval under which it was inter-
cepted is insufficient on its face; or the interception was not made in confor-
mity with the order of authorization or approval. Such motion shall be made
before the trial, hearing or proceeding unless there was no opportunity to
make such motion or the person was not aware of the grounds of the motion,
in which case such motion may be made at any time during the course of
such trial, hearing or proceeding. If the motion is granted, the contents of
the intercepted wire communication, or evidence derived therefrom, shall
be treated as having been obtained in violation of this chapter and shall not
be received in evidence in any such trial, hearing or proceeding. The panel,
upon the filing of such motion by the aggrieved person, shall make available
to the aggrieved person or his counsel for inspection the intercepted commu-
nication and evidence derived therefrom.’’
The defendant does not argue on appeal that the records were admitted
into evidence in violation of the wiretapping statute.
18
Vanacore testified that he obtained from AT&T ‘‘an ex parte search
warrant’’ for the defendant’s records at the time of his investigation. It is
not clear why the state’s attorney’s office did not later have those records.
In the circumstances of this case, as related at length, there is no apparent
prejudice caused by the lack of immediate notification.
19
General Statutes § 54-47aa (d) provides in relevant part: ‘‘Not later than
forty-eight hours after the issuance of an order pursuant to subsection (b)
of this section, the law enforcement official shall mail notice of the issuance
of such order to the subscriber or customer whose call-identifying informa-
tion or basic subscriber information is the subject of such order, except
that such notification may be delayed’’ in certain circumstances.
20
We note that Vanacore testified that the victim consented to the police
listening to the phone call between her and the defendant. ‘‘[I]f one of the
parties to a telephone conversation consents to wiretapping, the provisions
of the wiretap act . . . do not apply.’’ State v. Tomasko, 238 Conn. 253,
272, 681 A.2d 922 (1996).
21
‘‘[I]t is the established policy of the Connecticut courts to be solicitous
of pro se litigants and when it does not interfere with the rights of other
parties to construe the rules of practice liberally in favor of the pro se party.
. . . Although we allow pro se litigants some latitude, the right of self-
representation provides no attendant license not to comply with relevant
rules of procedural and substantive law.’’ (Internal quotation marks omitted.)
State v. Adams, 117 Conn. App. 747, 755, 982 A.2d 187 (2009).
In this case, not only was the claim not preserved, but the defendant went
further and agreed with the court that there was no ‘‘issue’’ if the records
were not admitted into evidence; there was no objection at all to Vanacore’s
testimony about the records.
22
We decline to review the claim pursuant to the plain error doctrine or
the exercise of our supervisory powers over the administration of justice.
23
The defendant also claims that his rights under the Connecticut constitu-
tion were violated. The defendant, however, does not provide a separate
analysis of his claim under the Connecticut constitution, and accordingly,
we decline to afford it review. See State v. Geisler, 222 Conn. 672, 684–86,
610 A.2d 1225 (1992).
24
The defendant also requests reversal pursuant to the plain error doctrine
and the exercise of our supervisory powers over the administration of justice.
The defendant has not demonstrated that there was any error; thus, the
plain error doctrine; see State v. Domian, 235 Conn. 679, 692, 668 A.2d 1333
(19960; and the use of our supervisory powers; see State v. Coward, 292
Conn. 296, 315, 972 A.2d 691 (2009), are not available.
The defendant further argues that the procedure violated General Statutes
§ 51-183h and canon 3 of the Code of Judicial Conduct (now rule 2.11).
Neither of these claims are preserved for our review. See also Francis v.
Commissioner of Correction, 142 Conn. App. 530, 545, 66 A.3d 501, cert.
denied, 310 Conn. 921, 77 A.3d 141 (2013).