State v. Shawn G.

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 STATE OF CONNECTICUT v. SHAWN G.*
(AC 42617)
Bright, C. J., and Elgo and Moll, Js.

Syllabus

Convicted, after a jury trial, of the crimes of possession of narcotics with
intent to sell by a person who is not drug-dependent, criminal possession
of a revolver and risk of injury to a child, and, after a plea of guilty, of
being a persistent serious felony offender, the defendant appealed to
this court, claiming that the evidence was insufficient to sustain his
conviction and that the trial court improperly declined to issue a capias
he requested. The police had executed a search warrant on the defen-
dant’s apartment, where he lived with his wife and minor stepchildren.
During their search of the apartment, the police found, inter alia, a
loaded revolver and cash in a storage container, crack cocaine in a
dresser drawer, used drug baggies that tested positive for cocaine resi-
due and a digital scale. Two cell phones also were found during a search
of the defendant’s person. The defendant told the police that the revolver
was his and that he had bought it to protect his family. Held:
1. The evidence was sufficient to support the defendant’s conviction of the
weapon and drug charges, but his conviction of risk of injury to a child
could not stand:
a. The evidence was sufficient to establish that the defendant had domin-
ion and control over and constructively possessed the revolver, as his
ownership of the revolver was the ultimate manifestation of dominion
and control; the defendant’s admission to the police that he purchased
the revolver to protect his family supported the conclusion that he
intended to exercise dominion and control over it by using it for that
purpose, and, notwithstanding his contention that he was not in exclusive
possession of the apartment and that the state never proved that he
resided there at the time of the search, there was abundant evidence
from which the jury could conclude that the defendant lived there, includ-
ing the concession by his counsel that he spent time there with his wife
and family, and, that the revolver was found in the bedroom he shared
with his wife, reinforced the evidence of his ownership of and intention
to maintain dominion and control over the revolver.
b. The defendant’s claim that the state failed to prove that he construc-
tively possessed the narcotics found in his bedroom was unavailing,
the confluence of incriminating statements and circumstances having
supported the inference that he was in a position of control over the
narcotics and, thus, constructively possessed them: the jury had evidence
before it that guns frequently are used by drug dealers to protect them-
selves and their cash and narcotics, the presence of the loaded revolver
in the bedroom was relevant in determining whether the defendant
intended to exercise dominion and control over the narcotics, the cash
found in the same storage container as the revolver was in denominations
that were significant to the purchase of narcotics, and digital scales are
commonly used to ensure that narcotics are accurately measured for
packaging and distribution; moreover, as the bedroom is an intimate
area of the home, the jury reasonably could have concluded that access
to it would ordinarily be limited to the defendant and his wife, and the
cumulative effect of the most incriminating statements and circum-
stances relating to the conduct of someone involved in the sale of narcot-
ics implicated the defendant, rather than his wife.
c. The mere presence of a firearm hidden in a storage container in the
defendant’s bedroom did not constitute a situation under the risk of
injury statute (§ 53-21 (a) (1)) in which a child was likely to be injured,
and the state conceded that it failed to present sufficient evidence with
respect to that charge; accordingly the judgment was reversed with
respect to that conviction.
2. The defendant failed to demonstrate that the trial court violated his sixth
amendment right to compulsory process when it declined to issue a
capias for a police officer who failed to appear at trial in response to
a subpoena and denied the defendant’s request for a continuance:
 a. Although the trial court mistakenly believed it could not issue the
capias in the absence of in-hand service of the subpoena on the officer,
who was in Florida at the time of trial, it properly considered the inter-
woven nature of the defendant’s requests for the capias and a continuance
before it denied the request for a continuance, which the defendant
did not challenge on appeal, as the court had before it uncontroverted
evidence that the officer had been out of state at all relevant times and
would remain so for another two weeks, the defendant already had been
granted continuances to procure witnesses, his request was untimely,
the length of the requested continuance was too long, the proffered
testimony would be cumulative of evidence already before the jury, and
the denial of the continuance would not impair his ability to defend him-
self.
b. Any violation of the defendant’s sixth amendment right to compulsory
process stemming from the trial court’s refusal to issue a capias to
procure the police officer’s presence was harmless beyond a reasonable
doubt, as defense counsel conceded that the officer’s testimony might
have been cumulative of evidence that was already before the jury,
the impact of the testimony would have been inconsequential, as the
defendant never proffered that it would undermine the evidence against
him, and, given that the officer had discovered the narcotics in the
bedroom and heard the defendant confess that the gun was his, the
testimony likely would have been adverse to the defense, for which the
defendant never articulated to the court a reason to believe otherwise.
Argued December 2, 2020—officially released October 5, 2021

Procedural History

Two part substitute information charging the defen-
dant, in the first part, with the crimes of possession of
narcotics with intent to sell by a person who is not
drug-dependent, criminal possession of a revolver and
risk of injury to a child, and, in the second part, with
being a persistent serious felony offender, brought to
the Superior Court in the judicial district of Middlesex,
where the first part of the information was tried to the
jury before Suarez, J.; verdict of guilty; thereafter, the
defendant was presented to the court on a plea of guilty
to the second part of the information; judgment of guilty
in accordance with the verdict and plea, from which
the defendant appealed to this court. Reversed in part;
judgment directed.
Pamela S. Nagy, assistant public defender, for the
appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Michael A. Gailor, state’s
attorney, and Russell C. Zentner, senior assistant state’s
attorney, for the appellee (state).
 Opinion

ELGO, J. The defendant, Shawn G., appeals from the
judgment of conviction, rendered after a jury trial, of
one count of possession of narcotics with intent to sell
by a person who is not drug-dependent in violation of
General Statutes (Rev. to 2017) § 21a-278 (b),1 one count
of criminal possession of a revolver in violation of Gen-
eral Statutes § 53a-217c (a) (1), and one count of risk
of injury to a child in violation of General Statutes § 53-
21 (a) (1). On appeal, the defendant claims that (1) the
evidence adduced at trial was insufficient to sustain his
conviction of each of the three counts, and (2) the trial
court violated his sixth amendment right to compulsory
process by declining to issue a capias that he requested.
We affirm in part and reverse in part the judgment of
the trial court.
At trial, the jury was presented with evidence of the
following facts. The defendant lived in the first floor
apartment of a two-story, multifamily house at 215 Pearl
Street in Middletown (apartment). He shared the apart-
ment with his wife and his two stepchildren—a sixteen
year old boy and a twelve year old girl. On May 31,
2017, officers from the Middletown Police Department
executed a search warrant on the defendant’s apart-
ment. When they arrived at the apartment, they
observed the defendant and another male standing in
the street. The police then went to the apartment, where
the defendant’s wife answered the door. The defen-
dant’s stepchildren were in the apartment at that time.
During the search of the apartment, the officers found,
among other things, crack cocaine and a revolver.
The defendant subsequently was arrested and
charged with the aforementioned offenses. A trial fol-
lowed, at the conclusion of which the jury found the
defendant guilty of all counts. The defendant thereafter
pleaded guilty to being a persistent serious felony
offender in violation of General Statutes § 53a-40 (c).
On October 3, 2018, the court sentenced the defendant
to a total effective term of twenty years of incarceration,
execution suspended after twelve years, plus five years
of probation.2 This appeal followed.
I
The defendant claims that the evidence adduced at
trial was insufficient to establish his guilt for each of
the three offenses of which he was convicted. The state
concedes that the evidence is insufficient to support
his conviction of risk of injury to a child but contends
that the evidence was sufficient to support his convic-
tion of criminal possession of a revolver and possession
of narcotics with intent to sell by a person who is not
drug-dependent. We agree with the state.
As this court has observed, ‘‘[a] defendant who
asserts an insufficiency of evidence claim bears an ardu-
70, 772 A.2d 657 (2001). ‘‘In reviewing a sufficiency of
the evidence claim, we apply a two part test. First, we
construe the evidence in the light most favorable to
sustaining the verdict. Second, we determine whether
upon the facts so construed and the inferences reason-
ably drawn therefrom the [jury] reasonably could have
concluded that the cumulative force of the evidence
established guilt beyond a reasonable doubt . . . .
This court cannot substitute its own judgment for that
of the jury if there is sufficient evidence to support the
jury’s verdict. . . .
‘‘While the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense, 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 com-
bination 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. . . . On appeal, we do not
ask whether there is a reasonable view of the evidence
that would support a reasonable hypothesis of inno-
cence. We ask, instead, whether there is a reasonable
view of the evidence that supports the jury’s verdict
of guilty.’’ (Internal quotation marks omitted.) State v.
Capasso, 203 Conn. App. 333, 338–39, 248 A.3d 58, cert.
denied, 336 Conn. 939, 249 A.3d 352 (2021).
A
The defendant first claims that there was insufficient
evidence to convict him of criminal possession of a
revolver in violation of § 53a-217c (a) (1). Although he
concedes that he had knowledge of the revolver, the
defendant argues that there was insufficient evidence
to prove that he exercised dominion or control over it.
The state counters that, because the defendant admitted
that he owned the revolver and the evidence supported
a finding that he lived at the apartment and shared
the bedroom where the revolver was found, the jury
reasonably could have concluded that the defendant
had dominion and control over it. We agree with the
state.
The following additional facts are relevant to this
claim. While searching the bedroom of the apartment,
Detective Daniel Schreiner found a loaded Taurus .38
special revolver and $2661 in cash inside a stackable
drawer. The uniform arrest report, which the defendant
signed while being processed, listed the apartment as
his address. Subsequently, the police questioned the
defendant at the Middletown police station. At that time,
the defendant waived his Miranda3 rights in writing.
During questioning by detectives, the defendant stated
that the revolver was his and that he had purchased it
for $800 because he needed it to protect his family.
Section 53a-217c (a) provides in relevant part: ‘‘A
person is guilty of criminal possession of a pistol or
revolver when such person possesses a pistol or
revolver, as defined in section 29-27, and (1) has been
convicted of a felony . . . .’’4 General Statutes § 53a-3
(2) defines ‘‘possess’’ as ‘‘to have physical possession or
otherwise to exercise dominion or control over tangible
property . . . .’’ Because the gun was not found on the
defendant’s person, the state prosecuted the defendant
under the theory of constructive possession.
As our Supreme Court recently explained, ‘‘there are
two kinds of possession, actual and constructive. . . .
[C]onstructive possession is possession without direct
physical contact. . . . To establish constructive pos-
session, the control must be exercised intentionally and
with knowledge of the character of the controlled
object. . . . Moreover, [when] the defendant is not in
exclusive possession of the premises where the [contra-
band is] found, it may not be inferred that [the defen-
dant] knew of the presence of the [contraband] and
had control of [it], unless there are other incriminating
statements or circumstances tending to buttress such
an inference. . . . [A]lthough mere presence is not
enough to support an inference of dominion or control,
[when] there are other pieces of evidence tying the
defendant to dominion [or] control, the [finder of fact
is] entitled to consider the fact of [the defendant’s]
presence and to draw inferences from that presence
and the other circumstances linking [the defendant] to
the crime. . . .
‘‘[A] case for constructive possession of a firearm
often is necessarily built on inferences, and a jury may
draw whatever inferences from the evidence or facts
established by the evidence it deems to be reasonable
and logical. . . . Although [p]roof of a material fact by
inference from circumstantial evidence need not be so
conclusive as to exclude every other hypothesis . . .
it must suffice to produce in the mind of the trier a
reasonable belief in the probability of the existence of
the material fact. . . . [I]f the correlation between the
facts and the conclusion is slight, or if a different conclu-
sion is more closely correlated with the facts than the
chosen conclusion, the inference is less reasonable. At
some point, the link between the facts and the conclu-
sion becomes so tenuous that we call it speculation.
. . . Therefore, [b]ecause [t]he only kind of an infer-
ence recognized by the law is a reasonable one . . .
any such inference cannot be based on possibilities,
surmise or conjecture. . . . It is axiomatic . . . that
[a]ny [inference] drawn must be rational and founded
upon the evidence. . . . [A]lthough we do not sit as
the seventh juror when we review the sufficiency of
the evidence . . . we also must be faithful to the con-
stitutional requirement that no person be convicted
unless the [g]overnment has proven guilt beyond a rea-
sonable doubt [and] take seriously our obligation to
assess the record to determine . . . whether a jury
could reasonably find guilt beyond a reasonable doubt.’’
(Citations omitted; emphasis in original; internal quota-
tion marks omitted.) State v. Dawson, Conn. ,
, A.3d (2021).
In support of his argument that the evidence was
insufficient, the defendant argues that the evidence
demonstrates only that he had knowledge of the
revolver and, further, that the state never proved that
he actually resided at the apartment at the time of the
search. Relying on State v. Gainey, 116 Conn. App. 710,
977 A.2d 257 (2009), and State v. Billie, 123 Conn. App.
690, 2 A.3d 1034 (2010), the defendant contends that
the evidence is insufficient to establish dominion and
control over the revolver. We disagree.
In Gainey, police officers executed a search warrant
on the defendant’s residence, where they detained the
defendant and a female individual inside. State v.
Gainey, supra, 116 Conn. App. 712. While searching the
apartment, the police found a set of keys and an eviction
notice addressed to the defendant and Jane Doe in one
of the bedrooms, as well as a scale. Id. Their search
continued in the yard to a vehicle, which they unlocked
with keys found in the bedroom. Id. Inside the vehicle
was a cell phone instructional manual. Id. Officers then
found fifteen bags of heroin hidden in the ashtray area of
the vehicle’s rear passenger compartment. Id., 712–13.
After the defendant was convicted of possession of
narcotics on the theory that he constructively possessed
the drugs, this court determined that the evidence was
insufficient to establish constructive possession
because there was ‘‘no more than a temporal and spatial
nexus between the defendant and the contraband
. . . .’’ Id., 722. As the court noted, ‘‘[t]he eviction
notice, without more, was insufficient to show that the
room in which it was found was the defendant’s bed-
room, and, further, it could not be used to show that
the room was exclusively for the use of the defendant.
Presumably, an eviction notice that was addressed to
both the defendant and a Jane Doe would concern any
inhabitant of the house. There was also testimony about
a woman being inside the house when the warrant was
served. The items found inside the vehicle do not but-
tress the inference of exclusive control, either. Again,
paperwork regarding the house, even in the defendant’s
name, does not evince control, especially if the jury
had to consider that the house was inhabited by at least
two persons. Additionally, the testimony regarding the
[cell phone] instruction book was that the defendant’s
name was decorated ‘with hearts and designs’ and does
not overwhelm us that there is more than a temporal
or spatial nexus between the defendant and the drugs
that were found in the backseat ashtray.’’ Id., 722–23.
As the court emphasized, ‘‘the search did not yield any
insurance or registration cards, and the last registered
owner of the vehicle was not the defendant.’’ Id., 712.
Because none of the evidence in the home was sufficient
to demonstrate that the defendant owned the vehicle
and, more specifically, connected him to the narcotics
found therein, this court concluded that the state could
not establish that the defendant exercised dominion
and control over the narcotics. Id., 722–23.
In Billie, an informant told the police that he had
witnessed a ‘‘ ‘black male’ ’’ place narcotics underneath
the rear porch of a particular residence. State v. Billie,
supra, 123 Conn. App. 692. In response, officers were
dispatched to the residence, where they discovered a
clear, plastic sandwich bag underneath the rear porch
area containing twenty-two smaller, individually
wrapped packages of crack cocaine. Id. The police then
removed all but one of the smaller packages, replaced
the sandwich bag in the hidden location, and set up
surveillance of the property. Id. Several hours later, the
police observed the defendant enter the driveway at
the front of the property and walk to the location of the
narcotics. Id., 693. After officers emerged and identified
themselves, the defendant dropped the sandwich bag
containing only the single package of crack cocaine
along with another bag containing marijuana. Id. The
defendant thereafter was convicted of possession of
narcotics with intent to sell under General Statutes
§ 21a-277 (a). Id., 693–94.
On appeal, the defendant conceded that he had pos-
session of the single package of cocaine recovered after
his arrest but argued that the state failed to present
sufficient evidence that he constructively possessed the
remaining twenty-one packages. Id., 697–98. The state
noted that the defendant ‘‘purposely entered the prop-
erty, proceeded directly to the location of the narcotics
and immediately removed the sandwich bag from the
hidden location without having to look or feel around,’’
and that the defendant was a prior resident at the loca-
tion. Id., 699. On appeal, this court reversed the judg-
ment of conviction, reasoning that ‘‘the state’s argument
conflates the two separate requirements of constructive
possession: knowledge and dominion and control.’’ Id.
The court stated: ‘‘[W]e believe that this evidence is
relevant to whether the defendant had knowledge of the
narcotics but does not support a reasonable inference
of dominion and control. As this court has recognized,
contraband found in a public area could have been
secreted there by virtually anyone.’’ (Internal quotation
marks omitted.) Id.
In the present case, the defendant argues that, like
the defendant in Gainey, he was not in exclusive pos-
session of the apartment and the firearm was not found
on his person, and, as in Billie, his statements to the
police indicate that, at most, he had knowledge of the
revolver. Therefore, he contends that the evidence was
insufficient to prove that he exercised dominion or con-
trol over the revolver. The evidence, however, does not
support his contention that he had only ‘‘mere knowl-
edge’’ of the revolver, as the defendant admitted to the
officers that he purchased the revolver for personal
use. In the absence of evidence that the defendant was
deprived of physical possession, his ownership of the
revolver is the ultimate manifestation of dominion and
control. See Black’s Law Dictionary (6th Ed. 1990) p.
1106 (Ownership is defined as ‘‘[t]he complete domin-
ion, title, or proprietary right in a thing or claim. . . .
The right of one or more persons to possess and use
a thing to the exclusion of others.’’). Furthermore, the
defendant’s statement that he purchased the revolver
to protect his family supports the conclusion that he
intended to exercise dominion and control over it by
using it for that purpose.
Moreover, the argument that the state never proved
that the defendant lived at the apartment in question
is both unfounded and beside the point. First, there
is abundant evidence from which the jury could have
concluded that the defendant lived at the apartment
where the revolver was found, and, indeed, counsel for
the defendant conceded that the defendant spent time
at the apartment with his wife and family. Second,
unlike in Gainey, in which the contraband was found
in the rear passenger compartment of a vehicle but the
evidence was insufficient to connect it to the defendant,
and unlike in Billie, in which the contraband was found
outside of the defendant’s residence in a space accessi-
ble to the public, the revolver here was found in the
defendant’s bedroom, an intimate and private area of
his residence. See State v. Rhodes, 335 Conn. 226, 232,
249 A.3d 683 (2020) (‘‘the record contains sufficient
circumstantial evidence, beyond mere proximity, that
the defendant knew the firearm was in the car, was in
a position to control it, and intended to control it’’).
The fact that the defendant shared the bedroom with
his wife does not preclude a finding of constructive
possession. As we observed in State v. Bowens, 118
Conn. App. 112, 124–25 n.4, 982 A.2d 1089 (2009), cert.
denied, 295 Conn. 902, 988 A.2d 878 (2010), in which
the defendant did not own the vehicle in which the
contraband was found, ‘‘[c]onstructive possession can
be joint, does not require actual ownership of the fire-
arm, and can be established through circumstantial evi-
dence . . . .’’ (Internal quotation marks omitted.)
Indeed, the fact that the revolver was found in the
bedroom of the defendant’s apartment merely rein-
forces the evidence of his ownership and intention to
maintain dominion and control over it. Accordingly, we
conclude that the evidence was sufficient to support a
finding that the defendant constructively possessed the
revolver found in the apartment.
B
 The defendant next claims that the state presented
insufficient evidence to support his conviction of pos-
session of narcotics with intent to sell by a person who
is not drug-dependent in violation of § 21a-278 (b). We
disagree.
The following additional facts are relevant to the
defendant’s claim. When the police arrived at the apart-
ment to execute their search warrant, the defendant’s
wife answered the door, joined by a large dog, a pit
bull.5 At the request of the police, the defendant’s wife
put the dog in a crate. While searching the apartment,
Detective Jorge Yepes found 3.1 grams of crack cocaine
inside the upper left drawer of a dresser in the bed-
room.6 The dresser also had both men’s and women’s
clothes in it. In the pocket of one of the men’s pants
and on the bedroom floor, Yepes found two ‘‘ ‘used
drug baggies,’ ’’ which later tested positive for cocaine
residue. At trial, Sergeant Frederick Dirga testified that
the pants appeared to be for a ‘‘heavyset, large male.’’
At the time, the defendant was five feet, nine inches,
in height and weighed 240 pounds. The police also found
two Michael Kors watches in the bedroom on the top
of the stackable storage containers. Baughnita Leary,
the defendant’s girlfriend, testified that the watches
were gifts that she had given to the defendant. In the
basement of the apartment, the police found a digital
scale, typically used by drug dealers to measure cocaine
for packaging for sale, inside a bag of men’s clothing
identified as belonging to the defendant. At the time of
the search, the defendant was physically present in
front of the apartment. When the police searched the
defendant’s person, they found two cell phones.7
In addition to the watches and revolver establishing
the defendant’s residence at the apartment bedroom,
Dirga testified at trial that he had seen the defendant
‘‘come and go’’ to and from the apartment ‘‘too many
times to count’’ during the period of February to May,
2017, and that the defendant lived on the first floor.
Detective Nathan Peck, to whom the defendant admit-
ted that he owned the revolver, testified that he also
witnessed the defendant ‘‘come and go’’ to and from
the residence on numerous occasions.
The state also presented evidence that the defendant
had various expensive expenditures that were inconsis-
tent with his reported employment and wage history.
For example, the state presented the arrest report,
which was filled out by the police during their ques-
tioning of the defendant, in which the defendant listed
his current occupation as ‘‘unemployed.’’8 The state also
offered the testimony of Emilio Theodoratos, a wage
employment agent from the Department of Labor. Theo-
doratos testified that he had reviewed the defendant’s
reported employment history. According to a Depart-
ment of Labor automated benefits system report of the
defendant’s reported employment and wage history,
there was no record of any employment during the first
six months of 2017 and no record of employment at all
in 2016. However, while searching the glove compart-
ment of the defendant’s automobile, the police located
a bill of sale for a 2017 Victory motorcycle. That bill of
sale indicated that the defendant paid for a $21,516.87
Victory Magnum motorcycle in full and in cash on Feb-
ruary 8, 2017.
General Statutes (Rev. to 2017) § 21a-278 (b) provides
in relevant part: ‘‘Any person who manufactures, distrib-
utes, sells, prescribes, dispenses, compounds, trans-
ports with the intent to sell or dispense, possesses with
the intent to sell or dispense, offers, gives or administers
to another person any narcotic substance, hallucino-
genic substance other than marijuana, amphetamine-
type substance, or one kilogram or more of a cannabis-
type substance, except as authorized in this chapter,
and who is not, at the time of such action, a drug-
dependent person, for a first offense shall be impris-
oned not less than five years or more than twenty years;
and for each subsequent offense shall be imprisoned
not less than ten years nor more than twenty-five
years . . . .’’
The defendant argues that there was insufficient evi-
dence to sustain his conviction because the state failed
to prove beyond a reasonable doubt that he construc-
tively possessed the cocaine. The state counters that the
evidence and reasonable inferences drawn therefrom
establish incriminating circumstances from which the
jury could infer that the defendant knew of the presence
and character of the cocaine and exercised dominion
and control over it. We agree with the state.
‘‘[T]o prove illegal possession of a narcotic substance,
it is necessary to establish that the defendant knew the
character of the substance, knew of its presence and
exercised dominion and control over it. . . . Where,
as here, the cocaine was not found on the defendant’s
person, the state must proceed on the theory of con-
structive possession, that is, possession without direct
physical contact. . . . One factor that may be consid-
ered in determining whether a defendant is in construc-
tive possession of narcotics is whether he is in posses-
sion of the premises where the narcotics are found.
. . . Where the defendant is not in exclusive possession
of the premises where the narcotics are found, it may
not be inferred that [the defendant] knew of the pres-
ence of the narcotics and had control of them, unless
there are other incriminating statements or circum-
stances tending to buttress such an inference. . . . To
mitigate the possibility that innocent persons might be
prosecuted for . . . possessory offenses and to assure
that proof exists beyond a reasonable doubt, it is essen-
tial that the state’s evidence include more than just a
temporal and spatial nexus between the defendant and
the contraband.’’ (Citation omitted; internal quotation
marks omitted.) State v. Leon-Zazueta, 80 Conn. App.
678, 683, 836 A.2d 1273 (2003), cert. denied, 268 Conn.
901, 845 A.2d 405 (2004).
In support of his claim of evidential insufficiency,
the defendant relies on State v. Nova, 161 Conn. App.
708, 129 A.3d 146 (2015). In Nova, the police obtained a
warrant to search both the defendant and an apartment
building that the police believed was the defendant’s
residence. Id., 710. While surveilling the building in
preparation for execution of the warrant, the police
saw the defendant drive into the building’s parking lot,
exit the vehicle, and enter the apartment through the
main entry door, which opened into the kitchen. Id.,
710–11. The defendant then reemerged, ascending the
external staircase of the balcony on the third floor,
remained on the balcony for approximately one minute,
and then descended from the balcony and returned to
his vehicle. Id. When the police subsequently executed
the search warrant on the apartment, they found drugs
and drug paraphernalia in the kitchen and on the bal-
cony. Id., 712. The search of the defendant revealed
two cell phones but no cash or drugs. Id., 713.
In reversing the defendant’s conviction, this court
stated that ‘‘[i]t is undisputed that the defendant did
not exclusively possess the apartment or make any
incriminating statements. Thus, the question is whether
the other circumstances were sufficiently incriminating
to support an inference that the defendant construc-
tively possessed the narcotics police discovered in the
apartment.’’ Id., 719. In its review of the record, the
court determined that ‘‘there was no evidence that the
defendant was observed carrying anything into the
kitchen or onto the balcony, no evidence that he
touched anything while in the kitchen or on the balcony,
and no evidence that he left the kitchen or balcony with
anything.’’ Id., 722. Moreover, the court noted that it was
speculative to conclude, ‘‘on the basis of the defendant’s
mere proximity to the packaging materials and his pas-
sage through the kitchen, that he controlled the cocaine
found in the kitchen cabinets and garbage. The kitchen
was a common area used by the apartment’s occupants
and was adjacent to the main entry door, requiring the
defendant, like anyone entering the apartment, to pass
through it.’’ Id., 723. Moreover, ‘‘there was no compel-
ling correlation between the defendant simply being in
the apartment where drugs and paraphernalia later
were discovered and the conclusion that he construc-
tively possessed those narcotics and paraphernalia.’’
Id., 722–23. This court thus concluded that ‘‘the defen-
dant’s presence in the kitchen and on the balcony estab-
lished nothing more than a temporal and spatial nexus
between him and the cocaine and packaging materials
found in those areas.’’ Id., 721. The court further empha-
sized that, although the defendant had access to the
apartment over a nine month span, ‘‘the defendant’s
relationship to the contraband, not his relationship to
the apartment, is the proper focus of the constructive
possession inquiry.’’ Id., 725.
We are not persuaded that the facts in Nova compel
a similar result here. First, as we have previously
explained, the defendant’s nonexclusive possession of
the apartment, and the bedroom in particular, does not
preclude a finding of constructive possession where
‘‘there are other incriminating statements or circum-
stances tending to buttress . . . an inference [of con-
structive possession].’’ (Internal quotation marks omit-
ted.) State v. Winfrey, 302 Conn. 195, 211, 24 A.3d 1218
(2011); cf. State v. Hill, 201 Conn. 505, 516, 523 A.2d
1252 (1986) (‘‘[t]he essence of exercising control is not
the manifestation of an act of control but instead it is
the act of being in a position of control coupled with
the requisite mental intent’’). In State v. Winfrey, supra,
211–13, for example, our Supreme Court concluded that
the defendant was in constructive possession of contra-
band found in the console of his wife’s vehicle, notwith-
standing the presence of another passenger, on the
basis of factors that made it more likely that the defen-
dant, rather than the passenger or his wife, owned the
contraband. See also State v. Hill, supra, 516 (‘‘The phrase
‘to exercise dominion or control’ as commonly used
contemplates a continuing relationship between the
controlling entity and the object being controlled. Web-
ster’s Third New International Dictionary defines the
noun ‘control’ as the ‘power or authority to guide or
manage.’ ’’).
In considering what factors may reasonably manifest
the exercise of dominion or control when a defendant
is in nonexclusive possession of the premises where
contraband is found, we find instructive our Supreme
Court’s decision in State v. Butler, 296 Conn. 62, 993
A.2d 970 (2010). In that case, the court recognized that,
when a defendant is not in exclusive possession of a
vehicle, evidence from which a jury reasonably can
infer that a defendant is a narcotics trafficker, coupled
with sufficient evidence connecting a defendant to the
narcotics, may establish that a defendant exercised
dominion and control over the narcotics. Id., 78–79.
Specifically, the court observed that ‘‘there was signifi-
cant evidence from which it was reasonable for the jury
to infer that the defendant was a narcotics dealer. Such
an inference would also help support the further infer-
ence that the defendant had possessed the narcotics.
See State v. Marshall, 114 Conn. App. 178, 188, 969 A.2d
202 (evidence that defendant had sold narcotics from
same vehicle to undercover agent relevant to dispel
doubts about possession), cert. denied, 292 Conn. 911,
973 A.2d 661 (2009); State v. Diaz, 109 Conn. App. 519,
527, 952 A.2d 124 (claim of insufficient evidence to
support possession of narcotics unavailing when ‘[t]he
jury had before it ample evidence from which it could
infer that the defendant was a drug seller and that his
apartment was integral to that criminal enterprise’),
cert. denied, 289 Conn. 930, 958 A.2d 161 (2008); State
v. Riser, 70 Conn. App. 543, 553–54, 800 A.2d 564 (2002)
(discovery of $1532 and other evidence demonstrating
that defendant was trafficking crack cocaine supported
inference of possession of contraband).’’ (Emphasis
added.) State v. Butler, supra, 79–80. The defendant in
Butler was accompanied by two passengers in a rental
vehicle that was stopped by the police for a motor
vehicle violation. Id., 66–67. From their patrol car, the
officers observed the defendant closing the center con-
sole of the vehicle, which subsequently was found to
contain 21.5 grams of cocaine. Id. The Supreme Court
held that evidence of that movement, in addition to
evidence of $1369 in cash, several cell phones found
on his person, and the fact that the defendant was
operating a rental vehicle, was sufficient to demonstrate
constructive possession. Id., 67, 79–80.
In the present case, the jury had before it a confluence
of incriminating statements and circumstances that sup-
port the inference that the defendant was in a position
of control over the narcotics and possessed the requisite
mental intent. As we noted in part I A of this opinion,
the evidence presented at trial was sufficient to estab-
lish the defendant’s intention to maintain his dominion
and control over the revolver found in the bedroom he
shared with his wife. By the same token, the fact that
the fully loaded revolver was in the defendant’s bed-
room was a relevant factor for the jury to consider in
determining whether the defendant also intended to
exercise dominion and control over the narcotics found
there, as the jury had evidence before it that guns fre-
quently are used by drug dealers to protect themselves,
their cash, and their narcotics.9 See, e.g., State v. Butler,
supra, 296 Conn. 74 (‘‘[w]e have often stated . . . that
it is reasonable for police officers to suspect guns to be
associated with illegal drug selling operations’’ (internal
quotation marks omitted)); State v. Mann, 271 Conn.
300, 325, 857 A.2d 329 (2004) (‘‘Connecticut courts
repeatedly have noted that [t]here is a well established
correlation between drug dealing and firearms,’’ and
‘‘[f]ederal courts also have recognized this fact of life’’
(internal quotation marks omitted)), cert. denied, 544
U.S. 949, 125 S. Ct. 1711, 161 L. Ed. 2d 527 (2005). The
evidence also established that the $2661 in cash discov-
ered in the apartment bedroom not only was found in
the same storage container as the revolver, but also
was in denominations of five $100 bills; four $50 bills;
ninety-six $20 bills; and several bills in smaller denomi-
nations. According to the testimony of Sergeant Joseph
Flynn, those denominations were significant because
crack cocaine typically is purchased in transactions of
$20 at a time. With respect to the digital scale found in
the basement in a bag with the defendant’s clothes,
Dirga testified that scales commonly are used to ensure
that cocaine is accurately measured for packaging and
distribution. Here, the cocaine found in the bedroom
drawer weighed 3.1 grams, which, when broken down
into amounts typical for sale, amounted to $360 worth
of crack cocaine. In addition to that cocaine, officers
found two baggies with cocaine residue, one of which
was located in a pair of pants matching the defendant’s
size and build.
In analyzing a claim of constructive possession when
a defendant has nonexclusive possession of the prem-
ises, we reiterate that the bedroom, unlike the kitchen
in Nova, is not a common space but an intimate area
of a home. As such, a jury reasonably could conclude
that, for purposes of assessing the intention to exercise
dominion and control, access to the bedroom would
ordinarily be limited to the defendant and his wife.
Further, the most incriminating statements and circum-
stances relating to the conduct of someone involved in
the sale of narcotics—such as the revolver that the
defendant admittedly owned, the large amount of cash
found in the same storage container as the revolver,
the drug baggie found in a pair of men’s pants matching
the defendant’s physical description, the digital scale
found in the bag of the defendant’s clothing, the two
cell phones found on the defendant, and the evidence
of the defendant’s cash purchase of the Victory motor-
cycle—all implicate the defendant, rather than his wife.
As in Butler, the cumulative effect of this evidence
supports an inference that the defendant intended to
exercise dominion and control over the narcotics and,
therefore, constructively possessed the cocaine. See
State v. Slaughter, 151 Conn. App. 340, 349–50, 95 A.3d
1160 (testimony about modus operandi of drug dealers
coupled with defendant’s conduct sufficient to establish
constructive possession even though defendant’s girl-
friend was lessee of apartment where narcotics were
found because there was no evidence to support belief
that girlfriend knew of presence of drugs or was
involved in sale of illicit drugs), cert. denied, 314 Conn.
916, 100 A.3d 405 (2014). We, therefore, conclude that
the evidence before the jury was sufficient to support
a finding that the defendant constructively possessed
the cocaine found in the apartment.
C
The defendant also claims that the state presented
insufficient evidence to support his conviction of risk
of injury to a child in violation of § 53-21 (a) (1).10 The
state’s theory at trial was that the defendant had
exposed his twelve year old stepdaughter to a risk of
injury because his revolver was loaded and accessible
in the stackable drawer in the bedroom. On appeal, the
defendant argues, inter alia, that the mere presence
of a firearm hidden in a storage container does not
constitute a situation in which a child is likely to be
injured for purposes of § 53-21 (a) (1).
On our review of the record, we agree with the defen-
dant. Moreover, the state concedes that it failed to pres-
ent sufficient evidence with respect to the risk of injury
to a child conviction. For that reason, the defendant’s
conviction of risk of injury to a child cannot stand.
II
As a final matter, the defendant claims that the court
violated his right to compulsory process under the sixth
amendment11 by refusing to issue a capias for Yepes,
who failed to appear at trial in response to a subpoena.
The state concedes that the court mistakenly concluded
that it could not issue a capias in the absence of in-
hand service of the subpoena on Yepes. It nevertheless
contends that the court’s denial of defense counsel’s
request for a continuance to secure Yepes’ testimony,
which was predicated on the same compulsory process
concern that animated his capias request, renders the
capias issue academic, as the defendant cannot demon-
strate that the court violated his right to compulsory
process under the particular facts of this case. The state
also argues, as an alternative ground of affirmance, that
any violation of the defendant’s right to compulsory
process was harmless beyond a reasonable doubt. We
agree with both of the state’s arguments.
A capias is a vehicle to compel attendance at a judicial
proceeding. See Pembaur v. Cincinnati, 475 U.S. 469,
472 n.1, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986) (‘‘[a]
capias is a writ of attachment commanding [an] official
to bring a subpoenaed witness who has failed to appear
before the court to testify and to answer for civil con-
tempt’’); DiPalma v. Wiesen, 163 Conn. 293, 298, 303
A.2d 709 (1972) (‘‘[i]f one is not warranted in refusing
to honor a subpoena and it is clear to the court that
his absence will cause a miscarriage of justice, the court
[is permitted to] issue a capias to compel attendance’’).
As one court has noted, it is ‘‘an extraordinary mea-
sure’’; Wright v. Warden, Superior Court, judicial dis-
trict of Tolland, Docket No. CV-XX-XXXXXXX-S (January
18, 2019) (67 Conn. L. Rptr. 659, 660); that involves the
arrest of the witness in question. See General Statutes
§ 52-143 (e). In light of the gravity of such action, Con-
necticut law is clear that the issuance of a capias is not
mandatory but, rather, rests in the sole discretion of
the trial court. The trial court ‘‘has the authority to
decline to issue a capias when the circumstances do
not justify or require it. . . . In determining whether
there has been an abuse of discretion, the ultimate issue
is whether the court could reasonably conclude as it
did.’’ (Internal quotation marks omitted.) Greene v.
Commissioner of Correction, 330 Conn. 1, 33, 190 A.3d
851 (2018), cert. denied sub nom. Greene v. Semple,
U.S. , 139 S. Ct. 1219, 203 L. Ed. 2d 238 (2019).
Our review of a court’s ruling on a continuance request
likewise is governed by the abuse of discretion stan-
dard. See State v. Campbell, 328 Conn. 444, 473, 180
A.3d 882 (2018) (‘‘[t]here is no question but that the
matter of a continuance is traditionally within the dis-
cretion of the trial judge which will not be disturbed
absent a clear abuse’’ (internal quotation marks omit-
ted)).
A
To properly consider the defendant’s claim regarding
the alleged violation of his right to compulsory process,
a detailed examination of the extensive procedural his-
tory of this case is necessary. During a pretrial hearing
held on July 12, 2018, the court asked counsel whether
they believed that trial could be completed within one
week.12 At that time, the prosecutor expressed confi-
dence in his ability to conclude the state’s case-in-chief
in two days. Following defense counsel’s representation
of the defendant’s witness list, the prosecutor indicated
to the court that he had notified defense counsel on an
earlier date that Yepes would not be available for trial.
The prosecutor explained that, because Yepes was on
vacation in Florida, he intended to call officers who
witnessed what Yepes saw to testify at trial. When
defense counsel indicated that he thought he could still
subpoena Yepes in Florida, the prosecutor responded
that Yepes was out of state for the month of July and
reiterated that he had so apprised defense counsel on
an earlier date.
On that same day, as well as during the court’s advise-
ment to venirepersons, the court stated that it antici-
pated evidence starting on July 16, 2018, and continuing
for approximately one week, ‘‘plus or minus a day or
two.’’ The court further informed potential jurors that,
although ‘‘nobody can really give you an end date . . .
we anticipate about a week for all the evidence and the
conclusion of the case.’’
During its case-in-chief, the state established that
Officers Schreiner, Mark Lemieux, Dirga, and Yepes
executed the search warrant on the apartment. Both
Schreiner and Dirga testified that Yepes was on vacation
in Florida for the month of July. Dirga also testified
that he was present during the search of the apartment
bedroom and had observed Yepes when he found the
crack cocaine inside the bedroom dresser and the bag-
gies containing cocaine residue in the pocket of the
men’s pants and on the bedroom floor.
At the end of the day on July 16, 2018, the court
reviewed the remaining schedule with the jury and, on
the basis of the prosecutor’s representations, indicated
that the state intended to conclude its case-in-chief on
Thursday, July 19. On July 18, the state presented the
testimony of six witnesses and then indicated that it
likely would conclude its case-in-chief the next morn-
ing. On July 19, the state rested its case. At that time,
the defendant moved for a judgment of acquittal, which
the court denied.
Defense counsel then asked the court for a recess to
contact his witnesses. Upon his return, defense counsel
informed the court that he was not prepared to begin
the defendant’s case until the next morning. Counsel,
therefore, requested a continuance. Although the court
acknowledged that the jury was aware that the case
could ‘‘spill out’’ to the following week, after asking
counsel whether he could secure a witness for that
afternoon, the court ultimately granted the defendant’s
request to continue the case to the next day, July 20.
Prior to adjournment, the prosecutor asked the court
to ask defense counsel ‘‘if he’s going to need any of the
police officers because what happens is, he subpoenas
them . . . [t]hey cannot get a hold of [defense coun-
sel], and then, they end up calling me to find out about
whether or not they are required to be here . . . .’’ The
prosecutor noted that three police officers who had
been subpoenaed by the defendant to appear that morn-
ing had been released from their subpoenas.13 For that
reason, the prosecutor wanted to know whether those
officers would be needed the next day, as their previous
attempts to contact defense counsel had been unsuc-
cessful. In response, defense counsel assured the court
that he would ‘‘make personal phone calls to each and
every one of them, to the chief of the police department,
whatever it takes if they’re saying they’re having a prob-
lem reaching me.’’ Court then adjourned at 11:33 a.m.
on July 19.
The following day, defense counsel began his case
by calling Leary, whose testimony concluded at 11:25
a.m. Defense counsel then informed the court that he
‘‘ha[d] several witnesses . . . coming at two o’clock’’
who were all law enforcement officers. When the court
inquired as to whether counsel had a witness who could
fill the gap before the afternoon recess, defense counsel
replied: ‘‘I believe that [the prosecutor] represented that
one of the subpoenaed witnesses, Detective Yepes, is
not available?’’ In response, the prosecutor reiterated
that the testimony at trial already had established that
Yepes was currently out of state and would be for the
entire month of July, and that the prosecutor previously
had apprised defense counsel of that fact ‘‘quite some
time ago.’’ The court then recessed for ten minutes at
11:55 a.m. after asking defense counsel to contact his
witnesses to determine whether any could testify before
the 1 p.m. lunch recess. When the proceeding recon-
vened at 12:31 p.m., defense counsel represented to the
court that he believed his witness was ‘‘on his way up’’
to the courtroom. At that time, the marshals indicated
to the court that the witness in question was not in the
building. The court thus adjourned for the lunch recess.
Prior to doing so, the court instructed defense counsel
to contact all of his witnesses during the lunch recess
to ensure they were ready to testify ‘‘one after the other’’
beginning at 2 p.m. At that time, defense counsel repre-
sented to the court that he already had done so.
When the proceeding resumed after the luncheon
recess, the court asked defense counsel to call his next
witness. Counsel then replied, ‘‘I’m not sure he’s avail-
able but, at this time, the defense would call Detective
George Yepes.’’ The court immediately excused the jury
and the following colloquy occurred:
‘‘[The Prosecutor]: Your Honor, this is done very bla-
tantly for effect before the jury.
‘‘The Court: Well, I’m going to address that in a
minute. . . . [Defense counsel], [i]f you are going to
make—
‘‘[Defense Counsel]: I’m sorry?
‘‘The Court: If you’re going to call a witness that you
know that’s not available—
‘‘[Defense Counsel]: Well, my understanding was, he’s
coming back Thursday.
‘‘[The Prosecutor]: No, no, no, no.
‘‘[Defense Counsel]: Unless I go[t] that confused.
‘‘[The Prosecutor]: That wasn’t . . . the testimony.’’
The court then asked Attorney Corey Heiks,
cocounsel for the defense, who had called Yepes as a
witness, to address the issue. Heiks stated that defense
counsel’s ‘‘office has properly sent out subpoenas, one
of which being Detective George Yepes. It’s our under-
standing Detective Yepes would be coming back from
Florida by Thursday. Here we are Friday, every reason-
able inclination that he would be here and available.
The Middletown Police Department accepted service
. . . of the subpoena for him. . . . [The] defense’s
strategic purpose of the . . . order of witnesses that
he was very imperative and we would like to call now
because he was the supervisor. We heard testimony
that all the officers were doing what Detective Yepes
instructed them to do. [He] . . . and, I believe, it was
Peck, they’re the ones that are privy with the incident
report, the only one, to my understanding, that has ever
been made. We know two officers didn’t bother making
reports, and that’s why, at this time, I feel that Detective
Yepes would be available and we’d able to proceed
forward.’’
In response, the prosecutor stated: ‘‘I told . . .
[defense counsel] before the jury selection process even
commenced that [Yepes] was away for the entire month
of July in Florida, so he knew it. Do you know when
they dropped off the subpoena for [Yepes], knowing
that? This Monday, July 16th. Okay? And he—there was
testimony from a witness who stated that [Yepes] was
going to be out for the month of July. So, for them to
then say, we heard he was coming back Thursday, is
simply not true. . . . They knew he was gone for the
month of July. There was testimony of that. I told
[defense counsel] he would be gone for the month of
July.’’ The court asked defense counsel if he had in-
hand service for Yepes, and defense counsel replied
that he did not and instead served the subpoena on the
Middletown Police Department, which accepted service
on his behalf. The court then asked defense counsel to
call their next witness, and the defense called Detective
Michael Fonda, who was present and testified.
Following Fonda’s testimony, the defense called
Schreiner as a witness, but Schreiner was not present.
After the court excused the jury, defense counsel repre-
sented that Schreiner properly had been subpoenaed
and was in the state but that efforts to contact him in
order to secure his timely presence had been unsuccess-
ful. Defense counsel thus asked the court to issue a
capias for Schreiner. The court replied that it was
unwilling to issue a capias in the absence of proof
of in-hand service of the subpoena.14 Defense counsel
represented that a member of the police department
had stated that he would accept service of the subpoena
and ‘‘would inform everybody’’ of it. When the court
asked if he had another witness, defense counsel
responded, ‘‘[w]ell, actually, no. [Schreiner would] be
the last witness, but he’s not here and he refuses to
come, I guess.’’ The prosecutor then requested that the
court ask defense counsel what method was used to
contact Schreiner because the officer had testified at
trial days earlier and ‘‘could have been apprised’’ of
‘‘when, approximately, he would be needed.’’ Further-
more, the prosecutor reiterated that, ‘‘as I told you
yesterday, I have had several officers say to me they
could not get in touch with [defense counsel].’’ The
court then stated that it was going to take a fifteen
minute recess and instructed defense counsel to ‘‘do
what you need to do to get the next witness in here if
that’s what you wish to do . . . .’’
When court resumed, defense counsel represented
that he had spoken to an officer at the Middletown
Police Department, who was under the impression that
Schreiner and Yepes were in the state and may be pres-
ent at 4 p.m. that day. When defense counsel suggested
continuing the case until the following Monday as one
of the options moving forward, the court responded by
recounting the proceedings thus far and emphasized
that defense counsel had been on notice that the state
was going to rest the day before, that the court already
had given defense counsel a continuance for that day,
and that defense counsel had assured the court that he
had three witnesses who would take one hour each.
The court also repeated its belief that it could not issue
a capias without in-hand service of the subpoena and
stated that, ‘‘[d]ropping a subpoena to the local police
department, it may or may not be enough [in order] to
issue a capias.’’ Defense counsel then stated that he
had ‘‘made every effort’’ and that he had ‘‘proof via
e-mails, via phone calls . . . .’’ Defense counsel further
assured the court that subpoenas had been issued after
the court reminded him that proof of phone calls was
inadequate for a capias.
After the prosecutor noted that there was no corrobo-
ration of service, the court asked defense counsel if he
had a copy of the subpoena that he issued to Schreiner.
Defense counsel stated, ‘‘[y]es, I do.’’ The court then
demanded to see it. Instead of producing the subpoena,
however, defense counsel stated that he could ‘‘produce
phone records since [the prosecutor] is, basically, say-
ing that I’m a liar.’’ Defense counsel then offered to
have the marshal come in and ‘‘tell exactly how she
served, and who she served,’’ to which the court replied:
‘‘[T]hat’s not what I asked you. I asked you if you have
a subpoena.’’ Defense counsel then represented that he
did have a subpoena ‘‘but not in my possession at this
moment.’’
The court reiterated that it would like to see whether
counsel had copies of the subpoena. Defense counsel
responded, ‘‘okay,’’ after which the record indicates
there was a pause before counsel continued: ‘‘Your
Honor, would e-mail be sufficient? If they give me cop-
ies from e-mail or they—[do you] want to see the actual
hard copy?’’ Defense counsel then stated that ‘‘[a] mar-
shal was not available to bring them today, but . . . is
available next week . . . or I could drive back to my
office. . . . We have copies there . . . .’’ In light of the
foregoing, the court decided to adjourn for the weekend
and informed defense counsel that it was his obligation
to have his witnesses at court the following Monday.
The court further instructed the parties to prepare writ-
ten briefs on what options were available for the court if
the defendant’s witnesses were not present at that time.
When trial resumed on Monday, July 23, 2018, the
court asked if the defense had any witnesses. Defense
counsel replied that he would have witnesses only if
Yepes was present and represented that Yepes, like
Schreiner, had been lawfully subpoenaed.15 The prose-
cutor at that time represented that a subpoena had been
delivered to the Middletown Police Department seven
days earlier, but that Yepes ‘‘was never notified of when
he was supposed to be here’’ because ‘‘[h]e’s been out
of state.’’ The prosecutor also informed the court that
the state had secured the presence of Schreiner, whom
the defendant requested to call days earlier, and asked
the court to ask defense counsel if he intended to call
Schreiner as a witness. Defense counsel indicated that
he planned to call Schreiner after Yepes’ testimony con-
cluded. The court then asked defense counsel to make
an offer of proof regarding Yepes’ anticipated testi-
mony. Defense counsel stated: ‘‘Well, [Yepes] is the one
that everybody said he told them what to do and he is
in charge and he signed off on everything. Nobody else
has a report. Okay? Nothing else is involved in a report
except for him. Okay? That’s my offer of proof.’’ When
the court informed counsel that Yepes was not the
officer who had authored the report, defense counsel
simply responded, ‘‘[o]kay.’’ The court then asked
defense counsel if Yepes’ testimony ‘‘would be cumula-
tive to what other Middletown police officers have
already testified to,’’ and counsel replied, ‘‘[m]aybe.’’
The court then asked counsel if he was asking for a
continuance, and defense counsel replied, ‘‘No. . . . I
don’t want a continuance. I want Detective Yepes.’’
When defense counsel then confirmed that he had
another witness, the court asked counsel to call that
witness. Defense counsel declined to do so, stating: ‘‘I
am not calling a witness out of order. You can’t—you
can’t force that.’’ In response, the court again asked
defense counsel if he was requesting a continuance, and
defense counsel replied: ‘‘No. I’m asking for Detective
Yepes to be here. If you want to continue the case until
Detective Yepes is back from Florida, I’m fine with
that.’’ The court overruled that objection and ordered
the defense to call its next witness, whereupon
Schreiner took the witness stand.
Following Schreiner’s testimony,16 the court asked
defense counsel if he had any further witnesses, and, in
the presence of the jury, he replied: ‘‘Yes, I do. Detective
Yepes.’’ The jury once again was excused, and the court
again asked defense counsel if he wanted a continu-
ance. Defense counsel declined that offer, stating: ‘‘No.
I’m asking for Detective Yepes to be present, as he
should be under the law.’’ The court again asked defense
counsel if he had effected in-hand service of the sub-
poena; defense counsel replied that he had not but
maintained that he was not required to do so under the
rules of practice. The court at that time stated that it
could not issue a capias for a witness who had not been
served in hand.
When defense counsel thereafter informed the court
that he had no witnesses other than Yepes, the court
again asked for an offer of proof. Defense counsel
replied: ‘‘All the officers involved in that investigation,
all reported verbally to Detective Yepes, who was in
charge. None of them have writings.’’ When pressed by
the court, defense counsel stated that he was unsure
who had written the incident report,17 but he believed
that Dirga and Yepes may have signed it.
The court at that time recounted for the record the
extensive procedural history underlying the issue,
emphasizing that defense counsel had been aware prior
to trial, and before the subpoena was issued, that Yepes
was out of state and that defense counsel had the oppor-
tunity to cross-examine the other police officers
involved in the search of the apartment. The court noted
that, on July 9, 2018, ‘‘we had a hearing on motions’’ at
which the prosecutor ‘‘informed the parties that [Yepes]
was out of state. . . . Evidence commenced . . . on
[July] 16. Tuesday, we took a recess and . . . Thurs-
day, July 19, the state rested in the morning, one wit-
ness. I asked [defense] counsel that morning . . . how
many witnesses [he] intended to call. I was told three
witnesses. I asked how long were those witnesses going
to last, and I was told about an hour each, not including
what the state would cross-examine. . . . Counsel
indicated that he needed a continuance to get his wit-
nesses. I granted that continuance. . . . At approxi-
mately twelve o’clock that day of July 19, I granted
[another] continuance for the defense to begin [its case
on] Friday morning. Friday, the defense had one witness
in the morning. I asked where the other witnesses were.
[Defense counsel was] not aware of where they were.
I granted a continuance until two o’clock where [the
defendant] produced one witness. At that time, the
defense still did not have any other witnesses. So, at 3
p.m., I granted [an additional] continuance [until the
following Monday] for the defense to produce its other
witnesses. This morning, [the defense] produced one
witness who, really, had no testimony. The only
remaining witness from this defense is [Yepes], a wit-
ness [who] is in Florida, was in Florida by the time
. . . the . . . subpoena was issued [and] continues to
be in Florida. . . . Counsel for the defense had had
ample opportunity to cross-examine all of the other
police officers involved [in the May 31, 2017 search of
the apartment], by their own admission.
‘‘The defense feels that it’s necessary to call [Yepes,
who] . . . I would classify as a cumulative witness.
I’ve asked the defense if they’re asking for another
continuance. They’re not asking for another continu-
ance, but [are insisting on the testimony of Yepes, who]
is not in the state of Connecticut. So, then, the question
is, how do we proceed.’’
The court then suggested that the only option for the
defendant to secure Yepes’ testimony would be to ask
for a continuance and reiterated that ‘‘[i]t’s 10:30 a.m.
[The defendant has] called one witness who, really, had
nothing to say.’’ Defense counsel at that time stated
that ‘‘the only way to resolve this properly, for [the
defendant] to get a fair trial, is to continue the case
when Detective Yepes is available.’’ The prosecutor
objected to that continuance request on the grounds
that (1) the state had notified defense counsel prior to
trial that Yepes was going to be in Florida for the month
of July and defense counsel had been afforded ample
time to secure his attendance on or before July 23, (2)
Yepes’ proffered testimony would be cumulative given
that other Middletown police officers already had testi-
fied as to their observations of Yepes, (3) counsel had
failed to produce a marshal to testify as to when the
subpoena had been served, (4) there was a lack of
evidence on the return of process on the subpoena, (5)
a continuance would disrupt the trial because Yepes
was not scheduled to return from Florida until weeks
later on August 6, 2018, and (6) it was likely that jurors
would become unavailable given the parameters they
had been given regarding the approximate length of
the trial.
The court thereafter denied defense counsel’s request
for a continuance. In so doing, the court emphasized
that counsel already had been afforded multiple contin-
uances in order to produce his witnesses, his request
was untimely, the probable duration of the continuance
pending Yepes’ return would be too long, Yepes’ testi-
mony, as proffered, ‘‘would be cumulative’’ of evidence
already before the jury, and that counsel had had the
opportunity to cross-examine and confront six to eight
police officers. The court further concluded that the
denial of the request for a continuance ‘‘would not
impair the defendant’s ability to defend himself with
respect to these matters.’’
After the state’s rebuttal witness and the defendant’s
surrebuttal witness had finished testifying, defense
counsel again indicated for the record that he wanted
to call Yepes. The evidence thereafter was submitted
to the jury, which returned a verdict of guilty, and this
appeal followed.
B
With that context in mind, we turn to § 52-143, which
governs the issuance of a capias in this state.18 That
statute ‘‘authorizes the trial court to issue a capias to
compel the appearance of a witness who fails to appear
without justification. The statute does not, however,
make it mandatory for the court to issue a capias when
a witness under subpoena fails to appear; issuance of
a capias is in the discretion of the court . . . [which]
has the authority to decline to issue a capias when the
circumstances do not justify or require it. . . . Judicial
discretion is always a legal discretion, exercised
according to the recognized principles of equity. . . .
[T]he action of the trial court will not be disturbed on
appeal unless it acted unreasonably and in clear abuse
of its discretion. . . . In determining whether the trial
court abused its discretion, this court must make every
reasonable presumption in favor of its action.’’ (Empha-
sis in original; internal quotation marks omitted.) State
v. Payne, 40 Conn. App. 1, 18, 669 A.2d 582 (1995), aff’d,
240 Conn. 766, 695 A.2d 525 (1997), overruled in part
on other grounds by State v. Romero, 269 Conn. 481,
849 A.2d 760 (2004). At the same time, if the trial court
‘‘never exercised any discretion because it believed its
authority to do so was lacking,’’ our review on appeal
is plenary. (Internal quotation marks omitted.) Moye v.
Commissioner of Correction, 168 Conn. App. 207, 238,
145 A.3d 362 (2016), cert. denied, 324 Conn. 905, 153
A.3d 653 (2017).
1
Relying on State v. Burrows, 5 Conn. App. 556, 500
A.2d 970 (1985), cert. denied, 199 Conn. 806, 508 A.2d 33
(1986), the defendant argues that the court improperly
declined to issue a capias in the absence of in-hand
service of Yepes.19 Although he acknowledges that our
review of such claims generally is governed by the abuse
of discretion standard, the defendant maintains that,
under Burrows, the court’s mistake of law effectively
obviates that standard of review because the court
could not have exercised any discretion when it
believed it lacked the authority to do so. In response,
the state concedes that in-hand service is not required
but argues that, under the particular circumstances of
this case, the issuance of a capias alone, without the
granting of a continuance for the time needed to enforce
it, would have been a futile act. Furthermore, because
the defendant has not challenged the propriety of the
court’s denial of his request to continue the trial until
Yepes returned to Connecticut several weeks later,
which request was intertwined with the capias issue,
the state submits that the defendant cannot establish
a violation of his right to compulsory process. On the
particular facts of this case, we agree with the state.
The right to compulsory process is memorialized in
the sixth amendment. As our Supreme Court has
explained, ‘‘[t]he federal constitution require[s] that
criminal defendants be afforded a meaningful opportu-
nity to present a complete defense. . . . The sixth
amendment . . . [guarantees] the right to offer the tes-
timony of witnesses, and to compel their attendance,
if necessary, [and] 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. . . . When
defense evidence is excluded, such exclusion may give
rise to a claim of denial of the right to present a defense.’’
(Internal quotation marks omitted.) State v. Tomas D.,
296 Conn. 476, 497, 995 A.2d 583 (2010), overruled in
part on other grounds by State v. Payne, 303 Conn. 538,
34 A.3d 370 (2012). In Tomas D., our Supreme Court
emphasized that the right to compulsory process is not
unqualified, and instructed that ‘‘a defendant may not
successfully establish a violation of his rights to present
a defense and to compulsory process without first tak-
ing reasonable steps to exercise those rights.’’ Id., 498.
More specifically, the court observed that, ‘‘[t]o exercise
his sixth amendment compulsory process rights dili-
gently, a defendant is required to utilize available court
procedures, such as the issuance of subpoenas, as well
as requests for continuances or material witness war-
rants that may be reasonably necessary to effectuate
the service process.’’ Id.; see also State v. Lubesky,
195 Conn. 475, 478–80, 488 A.2d 1239 (1985) (rejecting
compulsory process claim arising from inability to find
state witness who already had testified because defen-
dant failed to request continuance or move for mistrial);
Schwartzmiller v. State, 108 Idaho 329, 330–31, 699 P.2d
429 (App. 1985) (defendant’s ‘‘diligence in exercising his
sixth amendment right’’ is ‘‘relevant factual [inquiry]’’),
review denied, Idaho Supreme Court, Docket No. 15231
(June 20, 1985); State v. Timblin, 254 Mont. 48, 51, 834
P.2d 927 (1992) (compulsory process inquiry includes
consideration of ‘‘defendant’s diligence in exercising
[s]ixth [a]mendment rights’’). In concluding that the
defendant’s right to compulsory process was not vio-
lated, our Supreme Court held that the failure to seek
a continuance to secure the live testimony of a witness
is ‘‘a significant factor in concluding that the defendant’s
federal compulsory process rights have not been vio-
lated . . . .’’ State v. Tomas D., supra, 500.
In this case, the record reveals that, although the
court articulated its mistaken belief that in-hand service
of the subpoena was required to effectuate a capias,
the court’s consideration of the defendant’s sixth
amendment right to compulsory process—specifically,
the right to offer testimony of certain witnesses and to
compel, if necessary, their attendance—was inter-
twined with its deliberation on whether to grant a con-
tinuance until Yepes returned to Connecticut. The court
specifically found that ‘‘[t]he only remaining witness
from this defense is a witness that is in Florida, was in
Florida by the time . . . the . . . subpoena was
issued, [and] continues to be in Florida. . . . Counsel
for the defense had had ample opportunity to cross-
examine all of the other police officers involved . . .
in the [May 31, 2017 search of the apartment], by their
own admission. . . . The defense feels it is necessary
to call [Yepes, who] . . . I would classify as a cumula-
tive witness. I’ve asked the defense if they’re asking for
another continuance. They’re not asking for another
continuance, but the witness is not in the state of Con-
necticut. So, then, the question is, how do we proceed.’’
The court then stated that the only option for the defen-
dant to be able to produce Yepes would be to ask for
a continuance and reiterated that ‘‘[i]t’s 10:30 a.m. We’ve
called one witness who, really, had nothing to say.’’
Having previously insisted on the issuance of a
capias, defense counsel responded that ‘‘the only way
to resolve this properly, for [the defendant] to get a fair
trial, is to continue the case when Detective Yepes is
available.’’20 Following the state’s objection to another
continuance, the court then considered the factors set
forth in State v. Godbolt, 161 Conn. App. 367, 374–75,
127 A.3d 1139 (2015), cert. denied, 320 Conn. 931, 134
A.3d 621 (2016).21 The court emphasized that the defen-
dant already had been afforded two continuances in
order to produce his witnesses; his request was
untimely; the probable duration of the continuance until
Yepes’ return weeks later would be too long; Yepes’
testimony, as proffered, ‘‘would be cumulative’’ of evi-
dence already before the jury; and the defense had
the opportunity to cross-examine and confront one-
half dozen other police officers. Accordingly, the court
concluded that the denial of defense counsel’s request
for a continuance ‘‘would not impair the defendant’s
ability to defend himself with respect to these matters’’
and, thus, denied the request.22
On our exhaustive review of the record, we conclude
that the court properly proceeded to consider the issue
of whether a continuance of two weeks was necessary
in light of the right to compulsory process concerns
raised by defense counsel and his repeated attempts to
call Yepes as a witness. The record indicates that the
court had before it uncontroverted evidence that Yepes
had been out of state at all relevant times and would
remain so for another two weeks until August 6, 2018.
In light of Yepes’ unavailability, and mindful of the
extensive factual and procedural history regarding the
issue, the court concluded that a continuance was the
only viable option for securing his presence as a wit-
ness. The court further determined, despite the compul-
sory process concerns articulated by defense counsel,
that a continuance was not warranted under the facts
of this case. Given the particular procedural history of
this case, the court’s findings of fact, which were based
on sworn testimony before it with respect to Yepes’
unavailability, the interwoven nature of defense coun-
sel’s capias and continuance requests, and the fact that
the defendant has not challenged the court’s decision
denying his request for a continuance, we conclude that
the defendant has not demonstrated that his right to
compulsory process was violated in the present case.
2
Even if we were to conclude otherwise, the defendant
could not prevail. The state alleges, as an alternative
ground of affirmance, that any violation of the defen-
dant’s right to compulsory process stemming from the
court’s refusal to issue a capias did not constitute harm-
ful error. We agree.
In State v. Burrows, supra, 5 Conn. App. 559–60, this
court held that the state bears the burden of proving
that a violation of a defendant’s right to compulsory
process was harmless beyond a reasonable doubt. We
conclude that the state has met that burden in this case.
‘‘Whether a constitutional violation is harmless in a
particular case depends upon the totality of the evi-
dence presented at trial. . . . If the evidence may have
had a tendency to influence the judgment of the jury,
it cannot be considered harmless. . . . Whether such
error is harmless in a particular case depends upon a
number of factors, such as the importance of the [wit-
ness] in the prosecution’s case, whether the [testimony
of the witness] was cumulative, the presence or absence
of evidence corroborating or contradicting the [witness]
. . . and, of course, the overall strength of the prosecu-
tion’s case. . . . Most importantly, we must examine
the impact of the [witness] on the trier of fact and the
result of trial.’’ (Internal quotation marks omitted.) State
v. Quail, 168 Conn. App. 743, 762–63, 148 A.3d 1092,
cert. denied, 323 Conn. 938, 151 A.3d 385 (2016).
 First, with respect to the importance of Yepes’ testi-
mony, we are persuaded that Yepes’ testimony would
have been cumulative of evidence that was already
before the jury. Although Yepes was the officer who
found the cocaine, Dirga testified on direct examination
that he personally observed Yepes when he discovered
the cocaine in the upper left dresser drawer, and Dirga
was cross-examined by the defense. While Yepes was
present when the defendant confessed that the gun was
his, the defendant’s confession was witnessed by other
officers whom the state called to testify. Lemieux and
Peck testified at trial that they heard the defendant’s
confession as well. Defense counsel, when questioned
by the trial court about the materiality of Yepes’ testi-
mony, also conceded that Yepes’ anticipated testimony
might have been ‘‘cumulative to what other Middletown
police officers have already testified to.’’ In light of the
foregoing, while denying the defendant’s request for a
continuance on July 23, 2018, the court made a finding
that Yepes was a witness whose testimony would have
been cumulative of other evidence already before the
court. Accordingly, this factor weighs in favor of the
state.
Next, with respect to the strength of the prosecution’s
case, we first conclude that the refusal to issue a capias
or grant defense counsel a continuance to secure Yepes’
testimony was harmless with respect to the criminal
possession of a revolver charge because the defendant
had confessed to the police that the gun belonged to
him.23 It is well established that ‘‘[a] confession, if suffi-
ciently corroborated, is the most damaging evidence
of guilt . . . and in the usual case will constitute the
overwhelming evidence necessary to render harmless
any errors at trial.’’ (Internal quotation marks omitted.)
State v. Williams, 202 Conn. App. 355, 370, 245 A.3d
830, cert. denied, 336 Conn. 917, 245 A.3d 802 (2021);
see State v. Iban C., 275 Conn. 624, 645, 881 A.2d 1005
(2005); see also Arizona v. Fulminante, 499 U.S. 279,
296, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991) (‘‘[a]
confession is like no other evidence’’). With respect to
the possession with intent to sell conviction, as dis-
cussed in part I B of this opinion, the jury reasonably
could have found that the defendant had constructive
possession of the cocaine that the police found in the
upper left dresser drawer, particularly because the offi-
cers also discovered in the defendant’s bedroom a drug
baggie in a pair of men’s pants matching the defendant’s
physical description that tested positive for cocaine
residue. In addition, the officers found other evidence
commonly associated with drug dealing during their
search of the apartment, including the defendant’s
revolver, the large amount of cash in various denomina-
tions that was located in the same storage container
as the revolver, the digital scale in a bag with the defen-
dant’s clothes, the presence of a pit bull, and the two
cell phones found on the defendant.
 Finally, we conclude that the potential impact of
Yepes’ testimony was largely inconsequential. In State
v. Burrows, supra, 5 Conn. App. 560, this court deter-
mined, in considering the defendant’s alibi defense, that
‘‘the expected testimony of the witness [for whom the
court refused to issue a capias] . . . loom[ed] as a large
exculpatory element in the trial of the defendant.’’ As
a result, this court concluded that the absence of the
witness’ testimony would have had an impact on the
trial and, thus, constituted harmful error. See id. Unlike
in Burrows, the defendant here never proffered that
Yepes’ testimony would undermine the state’s evidence
against him. Indeed, given that Yepes discovered the
cocaine and heard the defendant confess that the gun
was his, the evidence in the record before us indicates
that, had Yepes been compelled to testify, his testimony
likely would have been adverse to the defense, and the
defendant never articulated to the court a reason for
it to believe otherwise. Accordingly, we conclude that
the state has demonstrated that any violation of the
defendant’s right to compulsory process stemming from
the court’s refusal to issue a capias was harmless
beyond a reasonable doubt.
The judgment is reversed only as to the conviction
of risk of injury to a child and the case is remanded
with direction to render judgment of acquittal on that
count and to resentence the defendant accordingly; the
judgment is affirmed in all other respects.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of the crime of risk of injury to a child, we decline to use the
defendant’s full name or to identify the victim or others through whom the
victim’s identity may be ascertained. See General Statutes § 54-86e.
1
We note that the legislature amended § 21a-278 since the events at issue.
See Public Acts 2017, No. 17-17, § 2. For convenience, all references to § 21a-
278 in this opinion are to the 2017 revision of the statute.
2
For the possession with intent to sell conviction, the court sentenced
the defendant to twenty years of incarceration, execution suspended after
twelve years, plus five years of probation. The court also sentenced the
defendant to concurrent ten year terms of incarceration on the criminal
possession of a revolver and risk of injury to a child counts.
3
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
4
At trial, the parties stipulated that the defendant had a prior felony
conviction.
5
Sergeant Joseph Flynn testified at trial that pit bulls are favored by drug
dealers in order to guard their product when it is unattended.
6
Sergeant Frederick Dirga testified that, in Middletown, crack cocaine
sells for $10 for 0.10 grams and that the crack cocaine found in the apartment
had a street value of approximately $360.
7
Dirga testified on direct examination that drug dealers usually have two
cell phones—a personal phone and one used for conducting business.
8
The defendant’s theory at trial was that he was not living in the apartment
at the time of the search and that the expensive items in question were gifts
bought for him by Leary. Leary testified that, in May, 2017, the defendant
was living with her. She also testified that, after a tractor-trailer accident,
which resulted in the death of her fiancé and two children in 2014, she
received a substantial amount of money, became ‘‘very wealthy,’’ and would
‘‘spoil’’ the defendant with expensive gifts. For example, she claimed that
she gave the defendant $5000 in cash on May 1, 2017. Leary also testified
that she bought the defendant a Victory Magnum motorcycle, as well as the
Michael Kors watches found during the search of the defendant’s apartment.
 The prosecution countered this testimony by calling Peck as a rebuttal
witness, who testified that the police executed a search warrant on Leary’s
residence the same day that they searched the defendant’s apartment and
did not find any men’s clothing in her residence. During closing arguments,
the prosecution also argued that Leary was biased and that her testimony
about the gifts was not credible because she was the defendant’s girlfriend,
they were in a sexual relationship, and she admitted on cross-examination
that she wanted to have children with the defendant.
To the extent that the defendant relies on Leary’s testimony in his suffi-
ciency of the evidence claims, we note that the jury was under no obligation
to credit Leary’s testimony. ‘‘Questions of whether to believe or to disbelieve
a competent witness are beyond our review.’’ (Internal quotation marks
omitted.) State v. Whitnum-Baker, 169 Conn. App. 523, 527, 150 A.3d 1174
(2016), cert. denied, 324 Conn. 923, 155 A.3d 753 (2017). On appeal, for a
sufficiency of evidence claim, ‘‘we do not ask whether there is a reasonable
view of the evidence that would support a reasonable hypothesis of inno-
cence. We ask, instead, whether there is a reasonable view of the evidence
that supports the jury’s verdict of guilty.’’ (Internal quotation marks omitted.)
State v. Capasso, supra, 203 Conn. App. 339.
9
Sergeant Joseph Flynn testified that the purpose of a firearm in the
sale of narcotics was ‘‘to protect [the dealer] . . . [his] product, [and his]
money . . . .’’
10
General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who
(1) wilfully or unlawfully causes or permits any child under the age of
sixteen years to be placed in such a situation that the . . . health of such
child is likely to be injured . . . shall be guilty of . . . a class C felony
. . . .’’
11
The sixth amendment to the United States constitution provides in
relevant part: ‘‘In all criminal prosecutions, the accused shall enjoy the right
. . . to have compulsory process for obtaining witnesses in his favor . . . .’’
‘‘[T]he sixth amendment [right] to compulsory process [is] made applicable
to state prosecutions through the due process clause of the fourteenth
amendment.’’ (Internal quotation marks omitted.) State v. Holley, 327 Conn.
576, 593, 175 A.3d 514 (2018).
12
The record indicates that counsel were reminded by e-mail that the
court would be adhering to the original trial schedule, with voir dire com-
mencing on July 11, 2018, and evidence beginning on July 16, 2018 through
July 20, 2018, or until a verdict was reached.
13
Those officers were Peck, Dirga, and Lemieux.
14
In a colloquy with defense counsel, the court also explained the signifi-
cance of a capias:
‘‘The Court: If you’re asking the court to arrest somebody—
‘‘[Defense Counsel]: Not arrest him, just order him here.
‘‘The Court: Well, that’s what a capias is.’’
15
Defense counsel also indicated that he had prepared a brief ‘‘on subpoe-
nas . . . and how a police officer is supposed to be served.’’ In response,
the court stated: ‘‘That’s not really what I asked to be briefed. What I asked
to be briefed is, if you did not have any witnesses present today, how should
we proceed with trial?’’ Defense counsel then responded by suggesting that
the court consider entering a missing witness nolle as to Yepes; the court
responded that it did not have the discretion to do so.
16
The sum and substance of Schreiner’s testimony in the defendant’s
case-in-chief amounted to confirmation that Yepes was in charge of the
investigation and that Schreiner believed that Yepes currently was out of
state on the basis of what Yepes had told him before his vacation.
17
The incident report in question was not admitted into evidence and is
not part of the record in this appeal.
18
General Statutes § 52-143 (e) provides in relevant part: ‘‘If any person
summoned by . . . any public defender . . . fails to appear and testify,
without reasonable excuse . . . the court or judge, on proof of the service
of a subpoena containing the statement as provided in subsection (d) of
this section . . . may issue a capias directed to some proper officer to
arrest the witness and bring him before the court to testify.’’
19
In Burrows, this court concluded that ‘‘the trial court erred when it
ruled it had no power to issue a capias because of the admitted lack of in-
hand service of the intended witness.’’ State v. Burrows, supra, 5 Conn.
App. 560.
20
Notwithstanding the requirement articulated in State v. Tomas D., supra,
296 Conn. 498, 500, that a defendant must take reasonable steps to exercise
the rights to present a defense and compulsory process, including the request
for a continuance, defense counsel in the present case subsequently charac-
terized the court’s action as ‘‘forcing [him] to . . . ask for a continuance.’’
21
In State v. Godbolt, supra, 161 Conn. App. 367, this court stated: ‘‘A
reviewing court is bound by the principle that [e]very reasonable presump-
tion in favor of the proper exercise of the trial court’s discretion will be
made. . . . To prove an abuse of discretion, an appellant must show that
the trial court’s denial of a request for a continuance was arbitrary. . . .
There are no mechanical tests for deciding when a denial of a continuance
is so arbitrary as to violate due process. The answer must be found in the
circumstances present in every case, particularly in the reasons presented
to the trial judge at the time the request is denied. . . . In the event that
the trial court acted unreasonably in denying a continuance, the reviewing
court must also engage in harmless error analysis. . . .
‘‘Among the factors that may enter into the court’s exercise of discretion
in considering a request for a continuance are the timeliness of the request
for continuance; the likely length of the delay; the age and complexity of
the case; the granting of other continuances in the past; the impact of delay
on the litigants, witnesses, opposing counsel and the court; the perceived
legitimacy of the reasons proffered in support of the request; the defendant’s
personal responsibility for the timing of the request; [and] the likelihood
that the denial would substantially impair the defendant’s ability to defend
himself . . . . We are especially hesitant to find an abuse of discretion
where the court has denied a motion for continuance made on the day of
the trial. . . .
‘‘Lastly, we emphasize that an appellate court should limit its assessment
of the reasonableness of the trial court’s exercise of its discretion to a
consideration of those factors, on the record, that were presented to the
trial court, or of which that court was aware, at the time of its ruling on the
motion for a continuance.’’ (Internal quotation marks omitted.) Id., 374–75.
22
The defendant has not challenged the propriety of that determination
in this appeal.
23
In this appeal, the defendant has not raised any claim regarding that
confession.