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STATE OF CONNECTICUT v. JAMES E. WALKER

(SC 19281)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and

Robinson, Js.

Argued September 14—officially released November 24, 2015

Timothy H. Everett, assigned counsel, with whom

were Stephen Capracotta, certified legal intern, and, on

the brief, Matthew Eagan, certified legal intern, for the

appellant (defendant).

Nancy L. Walker, deputy assistant state’s attorney,

with whom, on the brief, were Michael Dearington,

state’s attorney, and Stacey M. Miranda, senior assistant state’s attorney, for the appellee (state).
Opinion

McDONALD, J. The present case affords us an opportunity to clarify the scope of a recent amendment to

our rules of practice, under which appellate review of

an issue is not forfeited due to an inadequate record if

the sole obstacle to review is a party’s failure to obtain

an articulation from the trial court. See Practice Book

§ 61-10 (b). In his certified appeal, the defendant, James

E. Walker, challenges the Appellate Court’s determination that the absence of an adequate record regarding

an alleged in chambers inquiry into defense counsel’s

possible conflict of interest precluded review of the

defendant’s unpreserved claim that his exclusion from

that proceeding violated his constitutional right to be

present at all critical stages of the prosecution. See

State v. Walker, 147 Conn. App. 1, 15, 82 A.3d 630 (2013).

We conclude that the deficiency in the present case

required a rectification of the record, not an articulation. We further conclude that the forfeiture exception

under § 61-10 (b) is neither applicable to a deficient

record due to the failure to seek a rectification nor

applicable to unpreserved claims. Accordingly, we

affirm the Appellate Court’s judgment.

The record reveals the following undisputed facts. In

connection with the nonfatal shooting of two persons,

the defendant was charged with two counts of assault

in the first degree by means of the discharge of a firearm

in violation of General Statutes §§ 53a-59 (a) (5) and

53a-8 and one count of conspiracy to commit assault

in the first degree in violation of General Statutes

§§ 53a-48 and 53a-59 (a) (5). A key witness for the state,

a jailhouse informant named James Dickerson, was an

acquaintance of the defendant and was incarcerated at

the same facility as the defendant. At trial, Dickerson

testified that the defendant had admitted to him his

involvement in the shooting and his motive for the

shooting. Dickerson denied that he had received any

promises in exchange for his testimony but acknowledged that he hoped to get favorable treatment from

the state on pending narcotics charges.

The connection between Dickerson’s testimony and

the issue on appeal arose during jury selection, when

the following colloquy occurred:

‘‘The Court: Good morning, everybody. We are back

to jury selection in [the present case]. The attorneys

have brought a matter to the court’s attention this

morning which should be put on the record. [Assistant

State’s Attorney Stacey] Haupt [the prosecutor], I don’t

know if you want to go first or—

‘‘[The Prosecutor]: . . . It was brought to my attention late Friday by [Assistant State’s] Attorney Jack

Doyle [regarding] the [plea offer] between . . . Dickerson and the state’s attorney’s office. I asked Attorney

Doyle to write a memo about how exactly that went
down and what promises had been made to [Dickerson]

and in looking at his file attempting to prepare the

memo, Attorney Doyle realized that [defense counsel

in the present case] . . . had spoken to [Dickerson] at

the request of Attorney Jamie Alosi to try to talk to him

about taking some type of deal. However, it was prior

to [Dickerson] cooperating in this case. I don’t believe

that deal came to fruition, but I just thought it should

be brought to the court’s attention that . . . [defense

counsel] in some respect had conversations with one

of the state’s witnesses.

‘‘The Court: Let me flush that out a bit. Apparently,

[Dickerson], and it’s already a matter of knowledge and

public [record] in this case, is going to testify against

[the defendant]. [Dickerson], and I think you put this

on the record earlier, and if not, it should be. [Dickerson] was on trial in front of this court, represented

by Attorney Alosi. At some point, he entered a plea

upstairs, and I had nothing to do with the plea. I had

nothing to do with the sentencing. My involvement was

picking a jury up to the point where the matter was

resolved. Apparently, [defense counsel], you can add

to that factual situation. Listen up, Mr. Walker, I just

want to make sure you understand this.

‘‘[Defense Counsel]: [Dickerson] was brought in to

begin jury selection in a matter which he eventually

pled guilty to and is seeking to have consideration for

based on his testimony or anticipated testimony in this

case. I happen[ed] to be on the sixth floor. He was in

the bullpen upstairs with his attorney, and his attorney,

who I know, had told me about the case he was proceeding to trial on.’’ (Emphasis added.)

Defense counsel then went on to explain that Dickerson’s attorney had told him aboutthe evidence against

Dickerson relating to the sale of narcotics, which

included a videotape of the purported transaction and

a still photograph from that videotape that appeared to

show Dickerson making the sale, and the fact that the

state had offered Dickerson a plea agreement. Because

defense counsel knew Dickerson, he was asked, or may

have volunteered, to speak with Dickerson about the

sentence that could be imposed in light of the evidence

and Dickerson’s past history. In summarizing the discussion that ensued, defense counsel noted that Dickerson had told him about the plea offer as well as ‘‘what

the plea agreement was that he could accept short of

going to trial.’’ Defense counsel then explained: ‘‘I said,

in my opinion, the evidence was substantial. Then again,

I didn’t spend more than five or six minutes with him,

nor did I, other than the layout, which he probably

already heard from his attorney, have anything that

would impact on [the] decision he made. Then he proceeded to come down here and begin jury selection

with Your Honor.

‘‘Subsequent to that, it would appear, and I didn’t
know until, let’s say, a month to six weeks after that

he had given that statement because it wasn’t being

handled by [the prosecutor] at that time, this case. . . .

‘‘My client [the defendant] was incarcerated, having

not made bond, and, at some point . . . I became

aware that Dickerson had made a statement. As soon

as I became aware, I asked [the prosecutor] to send

me a copy of that statement. I spoke to [Assistant State’s

Attorney] Doyle. . . . I spoke to them about the parameters of the new plea agreement that [Dickerson] had

entered into based on his cooperation and I was told

essentially what happened. I was given a copy of the

statement, and that’s where we are today. My client

[the defendant] is aware I had a limited interaction with

[Dickerson] prior to him giving inculpatory evidence or

[an] anticipated statement that inculpates him, and I

explained to [the defendant] that this in no way would

impede my cross-examination of [Dickerson]. I don’t

think that that conversation is probably relevant to the

deal he eventually entered into, and I would probably

not, in my cross-examination, unless it came out that

we knew each other, but we had known each other

prior to me speaking to him up in court, and I wouldn’t

get into any details of the conversation. I don’t think

that would hamper my cross-examination of him at all.

[The defendant] has indicated to me that he wants me

to continue to represent him.

‘‘The Court: You heard that, Mr. Walker? You’re comfortable with that?

‘‘The Defendant: Yes, yes.

‘‘The Court: Let me tell you what I’m concerned about

to protect yourrights. As yourlawyer, [defense counsel]

owes you a duty of undivided loyalty. He can’trepresent

two people at the same time that have any kind of

conflict. From what I’ve heard here today, I haven’t seen

any. Whatever he did with [Dickerson] was unrelated to

whatever deal [Dickerson] now has going, and he can

go after that deal hand and claw, and there’s nothing

that I can see in his prior contact with [Dickerson] that

is even relevant to the situation that developed after

he spoke to [defense counsel]. I don’t see any conflict.

I don’t see any violation of the law by [defense counsel],

and I want to make sure you’re comfortable with it so

we can get on with the trial, and you’ve got to let me

know. Are you okay with it?

‘‘The Defendant: Yes.

‘‘The Court: Good, all right, then we’ll pick it up. Let’s

bring the panel out. Thank you.’’

During his cross-examination of Dickerson, defense

counsel did not attempt to elicit information about any

matter discussed at their prior meeting. At the conclusion of the trial, the jury returned a verdict finding the

defendant not guilty of assault in the first degree, as

either principal or accessory, but guilty of conspiracy
to commit assault in the first degree. The trial court

rendered judgment in accordance with the verdict, from

which the defendant appealed.

Among the issues raised before the Appellate Court,

the defendant claimed that he was entitled to a new

trial because his constitutional right to be present at

all critical stages of the prosecution had been violated.

State v. Walker, supra, 147 Conn. App. 3. The factual

basis for this claim was the defendant’s alleged exclusion from an in chambers discussion regarding defense

counsel’s possible conflict of interest. Id., 7–8. Conceding that this issue had not been raised at trial, the defendant sought review pursuant to State v. Golding, 213

Conn. 233, 239–40, 567 A.2d 823 (1989). State v. Walker,

supra, 8; see State v. Golding, supra, 239–40 (setting

forth four factors to obtain review and prevail upon

unpreserved claim of constitutional error).

The Appellate Court determined that the record was

inadequate to review this claim and affirmed the judgment of conviction. Id., 15–16. The court reasoned that

the record revealed ‘‘no information as to whether a

meeting occurred in chambers or whether there was a

discussion in court off the record in the presence or

absence of the defendant, whether or how counsel

alerted the court clerk’s office that something needed

to be put on the record that morning, or whether the

attorneys did something else in the presence or absence

of the defendant to alert the court that there was an

issue that needed to be put on the record.’’ Id., 15. The

court held that it was incumbent upon the defendant

under such circumstances to request a hearing in order

to establish the factual predicate of his claim on the

record, and that his failure to do so precluded appellate

review. Id.

This court thereafter granted the defendant’s petition

for certification to appeal, limited to the following issue:

‘‘Did the Appellate Court properly determine that the

defendant could not prevail on his unpreserved claim

that the trial court improperly excluded him from a

critical stage of the proceeding when trial counsel’s

possible conflict of interest was discussed, because of

the failure of the defendant to seek an articulation,

resulting in an inadequate record on appeal?’’ State

v. Walker, 311 Conn. 919, 919–20, 85 A.3d 654 (2014).

According to the defendant, there are two flaws in the

Appellate Court’s determination: (1) the record is adequate because, ‘‘understood in context,’’ the colloquy

demonstrates the factual basis for his claim—that the

trial court consulted with counsel out of the defendant’s

presence regarding defense counsel’s conflict of interest; and (2)to the extentthat an articulation is necessary

to dispel any ambiguity as to that matter, Practice Book

§ 61-10 (b) required the Appellate Court to order one

rather than deny review solely on that basis.

Before turning to the merits of these contentions, we
observe that the certified question does not accurately

reflect the issue before us. The Appellate Court never

determined that an articulation would cure the record

deficiencies that it had identified. Therefore, we must

reframe the certified question. See State v. Wang, 312

Conn. 222, 225–26 n.3, 92 A.3d 220 (2014)(reformulating

certified question to conform to issue actually presented); State v. Ouellette, 295 Conn. 173, 184, 989 A.2d

1048 (2010) (same). Properly framed, the question is

whether the Appellate Court properly determined that

the defendant could not prevail on his unpreserved

claim because of his failure to augment the record with

the facts related to the alleged in chambers discussion.

We answer that question in the affirmative.

We begin by acknowledging that the defendant’s

claim, broadly stated, is of constitutional magnitude

and therefore potentially amenable to Golding review,

despite not being raised at trial. ‘‘[A] criminal defendant

has a constitutional right to be present at all critical

stages of his or her prosecution. . . . Although the constitutional right to be present is rooted to a large extent

in the confrontation clause of the sixth amendment,

courts have recognized that this right is protected by

the due process clause in situations [in which] the

defendant is not actually confronting witnesses or evidence against him. . . . In judging whether a particular

segment of a criminal proceeding constitutes a critical

stage of a defendant’s prosecution, courts have evaluated the extent to which a fair and just hearing would

be thwarted by [the defendant’s] absence or whether

his presence has a relation, reasonably substantial, to

the fulness of his opportunity to defend against the

charge. Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.

Ct. 2658, 96 L. Ed. 2d 631 (1987).’’ (Citations omitted;

internal quotation marks omitted.) State v. Lopez, 271

Conn. 724, 732, 859 A.2d 898 (2004).

Accordingly, ‘‘although an in camera inquiry regarding a potential conflict of interest may constitute a

critical stage of a prosecution . . . it does not follow

that all [in chambers] discussions constitute a critical

stage of the prosecution. . . . [Determining] whether

a particular in camera proceeding qualifies as a critical

stage of the prosecution is a necessarily fact intensive

inquiry. Thus, it is imperative that the record reveal

the scope of discussion that transpired.’’ (Emphasis

added; internal quotation marks omitted.) State v.

Chambers, 296 Conn. 397, 412–13, 994 A.2d 1248 (2010);

State v. Bonner, 290 Conn. 468, 492, 964 A.2d 73 (2009).

When ‘‘we are left to speculate as to whether the [in

camera] conversation[s] consisted of the [trial] court

and counsel conducting an extensive discussion as to

[the] potential conflict[s] of interest at one end of the

spectrum or, at the opposite end, a brief comment to

the court that there was a matter that needed to be

placed on the record, or . . . dialogue that fell somewhere in between . . . we cannot determine the extent
to which a fair and just hearing would have been

thwarted by the defendant’s absence or whether his

presence has a reasonably substantial relation to the

fullness of his opportunity to defend against the criminal charges.’’ (Internal quotation marks omitted.) State

v. Bonner, supra, 492–93.

In light of this standard, we can readily dispense

with the defendant’s contention that the record, as it

presently stands, is adequate for appellate review. No

matter how ‘‘context[ual]’’ a reading we apply to the

colloquy previously recited, we are unable to glean:

whether counsel alerted the court directly about this

issue or spoke to the court clerk, who in turn alerted

the court; whether any discussion of this matter

occurred with the court off the record; the scope of

any such discussion; and whether the defendant was

in fact absent during any such discussion. Cf. State v.

Lopez, supra, 271 Conn. 736 (record established that

inquiry identified potential conflict of interest for

defense counsel, namely, his conflicting roles of potential material witness in case and defendant’s legal counsel, and inquiry consisted of single question and

answer). The defendant’s reliance on certain oblique

statements by the court—‘‘[t]he attorneys have brought

a matter to the court’s attention this morning which

should be put on the record,’’ ‘‘[l]et me flush that out

a bit,’’ and ‘‘[l]isten up, Mr. Walker, I just want to make

sure you understand this’’—do not shed light on these

essential questions.

Under long-standing precedent, such deficiencies

would preclude appellate review. See Practice Book

§ 61-10 (a) (‘‘It is the responsibility of the appellant to

provide an adequate record for review. The appellant

shall determine whether the entire trial court record is

complete, correct and otherwise perfected for presentation on appeal.’’); see, e.g., State v. Hazel, 106 Conn.

App. 213, 220–22, 941 A.2d 378 (deeming record inadequate to review claimed violation of right to be present

at critical stage when it did not reflect scope of in

chambers discussions), cert. denied, 287 Conn. 903, 947

A.2d 343 (2008). Therefore, we turn to the question of

whether § 61-10 (b) shields the defendant from forfeiture of appellate review.

Practice Book § 61-10 (b), which took effect on January 1, 2013, provides: ‘‘The failure of any party on appeal

to seek articulation pursuant to [Practice Book §] 66-

5 shall not be the sole ground upon which the court

declines to review any issue or claim on appeal. If the

court determines that articulation of the trial court decision is appropriate, it may remand the case pursuant

to [Practice Book §] 60-5 for articulation by the trial

court within a specified time period. After remand to

the trial court for articulation, the trial court may, in

its discretion, require assistance from the parties in

order to provide the articulation. Such assistance may
include, but is not limited to, supplemental briefs, oral

argument and provision of copies of transcripts and

exhibits.’’ The commentary to § 61-10 explains that this

subsection ‘‘was adopted to effect a change in appellate

procedure by limiting the use of the forfeiture sanction

imposed when an appellant fails to seek an articulation

from the trial court pursuant to [Practice Book §] 66-

5 with regard to an issue on appeal . . . . The adoption

of subsection (b) is not intended to preclude the court

from declining to review an issue where the record is

inadequate for reasons other than solely the failure to

seek an articulation, such as, for example, the failure to

procure the trial court’s decision pursuant to [Practice

Book §] 64-1 (b) or the failure to provide a transcript,

exhibits or other documents necessary for appellate

review.’’ Practice Book § 61-10, commentary.

It is self-evident that Practice Book § 61-10 (b) refers

only to articulations. Our rules of practice, however,

recognize two mechanisms for remedying deficiencies

in a record for appellate review: articulation and rectification. See Practice Book § 66-5; see also Practice Book

§ 66-7 (review of such motions). Admittedly, prior to

the enactment of Practice Book § 61-10 (b), our case

law occasionally has failed to properly distinguish the

two. See, e.g., State v. Chambers, supra, 296 Conn.

413–14 (deeming record inadequate to determine

whether meeting in chambers was critical stage of prosecution in absence of articulation or rectification

because only evidence in record concerning what transpired in chambers consisted of two passing references

by trial court indicating merely that there had been

such meeting); State v. Stewart, 255 Conn. 913, 763 A.2d

1039 (2000) (sua sponte order, in connection with grant

of certification, ‘‘that the trial court articulate the facts

concerning discussions, if any, among the state’s attorney, defense counsel and the court during a charging

conference, relative to the court’s giving a ‘no unfavorable inference’ instruction to the jury in this matter’’).

Nonetheless, as we explain subsequently in this opinion,

there is ample authority explaining the distinct function

that each mechanism serves. Therefore, the threshold

issue is whether an articulation or a rectification would

be necessary to remedy the particular deficiency in the

present case.

‘‘It is well established that [a]n articulation is appropriate where the trial court’s decision contains some

ambiguity or deficiency reasonably susceptible of clarification. . . . [P]roper utilization of the motion for

articulation serves to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial

court rendered its decision, thereby sharpening the

issues on appeal.’’ (Internal quotation marks omitted.)

Priest v. Edmonds, 295 Conn. 132, 140, 989 A.2d 588

(2010); accord Barnes v. Barnes, 190 Conn. 491, 494,

460 A.2d 1302 (1983). In other words, an articulation

elaborates upon, or explains, a matter that the trial
court decided. A motion for articulation ‘‘may not . . .

be used to modify or to alter the substantive terms of

a prior judgment . . . .’’ (Internal quotation marks

omitted.) Bauer v. Bauer, 308 Conn. 124, 131, 60 A.3d

950 (2013).

A motion for rectification, by contrast, is appropriate

when the record must be modified or augmented in

some fashion. ‘‘A motion for rectification can be used

to make (1) additions to the record, (2) corrections to

the record or (3) deletions from the record. The motion

cannot be used to add new matters to the record that

were not presented at trial.’’ (Footnotes omitted.) C.

Tait & E. Prescott, Connecticut Appellate Practice and

Procedure (4th Ed. 2014) § 6-2:3.3; see, e.g., Kalams v.

Giacchetto, 268 Conn. 244, 252–53, 842 A.2d 1100 (2004)

(because plaintiff’s request to charge was not contained

in court file, court permitted rectification of record

to reflect that plaintiff’s request to charge had been

presented to court in chambers); State v. Floyd, 253

Conn. 700, 730–32, 756 A.2d 799 (2000) (hearing on

motion for rectification to determine whether state’s

witness had plea agreement providing consideration for

testifying at defendant’s trial at time of defendant’s trial,

in contravention to trial testimony); State v. Lopez, 235

Conn. 487, 491, 668 A.2d 360 (1995) (rectification to

correct court reporter’s purportedly inaccurate transcription of trial court’s instruction); Nair v. Thaw, 156

Conn. 445, 455, 242 A.2d 757 (1968) (rectification could

have been pursued to clarify off record agreement

between parties); State v. Benitez, 122 Conn. App. 608,

614, 998 A.2d 844 (2010) (defendant should have availed

himself of right to seek rectification of record regarding

reconstruction of jury visit to crime scene).

It is clear that the deficiencies in the present record

are not amenable to articulation, but rather should have

been remedied by rectification. The record is not lacking the factual or legal basis upon which the trial court

rendered any ruling or decision supporting the judgment. Rather, the record could have been augmented

to include matters that occurred off the record. In such

circumstances, rectification is the appropriate method

of perfecting the record. See, e.g., State v. Shashaty,

251 Conn. 768, 785, 742 A.2d 786 (1999) (rectification

sought to resolve whether matter of defendant being

shackled during trial was discussed at in chambers conference), cert. denied, 529 U.S. 1094, 120 S. Ct. 1734,

146 L. Ed. 2d 653 (2000); State v. David M., 109 Conn.

App. 172, 176, 950 A.2d 599 (rectification sought to

place on record defense counsel’s statement to court

in chambers that defendant wanted to withdraw his

guilty pleas), cert. denied, 289 Conn. 924, 958 A.2d 154

(2008); State v. Pelletier, 85 Conn. App. 71, 76, 856 A.2d

435 (rectification sought was inadequate when it did

not reflect whether defendant was informed by counsel

about meeting in chambers, whether she waived her

right to be present at meeting, and whether she con-
sented to court’s decision in chambers), cert. denied,

272Conn. 911, 863A.2d 703 (2004);In re Christopher G.,

20 Conn. App. 101, 107, 564 A.2d 619 (1989) (defendant

should have requested trial court to place on record in

chambers discussion regarding basis for ruling or

should have sought rectification), cert. denied, 213

Conn. 814, 569 A.2d 549 (1990).

In response to the state’s contention thatrectification

was required, the defendant suggests that no distinction

should be drawn between articulations and rectifications for purposes of Practice Book § 61-10 (b) because

both mechanisms serve the same ultimate function and

are addressed in tandem elsewhere in the rules of practice. We reject this suggestion. We generally deem it

significant when a term that is omitted in one rule is

included in related rules. See, e.g., State v. Valedon,

261 Conn. 381, 387, 802 A.2d 836 (2002); Connor v.

Statewide Grievance Committee, 260 Conn. 435, 440–

41, 797 A.2d 1081 (2002). Although there may be no

need to distinguish between the two mechanisms elsewhere in the rules, there is a logical basis to do so in

§ 61-10 (b). As the advisory committee on appellate

rules explained in proposing this amendment, ‘‘the

existing articulation system . . . often results in an

unfair and inequitable finding that a party has forfeited

a right to obtain appellate review for failure to seek

an articulation from the trial court, there is a lack of

certainty as to when articulation is needed, and the

current system encourages trial judges to withhold the

grounds for their decisions unless an articulation is

requested.’’(Internal quotation marks omitted.) Grimm

v. Fox, 303 Conn. 322, 332 n.12, 33 A.3d 205 (2012).

Reasonable minds may differ as to whether language

is ambiguous. An appellant may be convinced that the

pertinent aspect of the record is unambiguous, only to

have a reviewing court disagree. By contrast, it should

be readily apparent when the pertinent portion of the

record is inaccurate, incomplete or missing altogether,

as in the present case. Thus, the concerns underlying

this rule change do not support the defendant’s position.

Moreover, as our previous discussion reflects, an

essential feature of an articulation demonstrates that

the rule change was not intended to provide a safety

net for unpreserved claims. That an articulation clarifies the record presupposes that the factual or legal

issue on which clarification is soughtrelated to a matter

decided by the trial court. It may be that, in fortuitous

circumstances, a litigant who has failed to preserve a

claim may be able to obtain an articulation because the

factual or legal determination at issue also is relevant

to a matter that was before the trial court. While such

a fortuity may enable a litigant to obtain an adequate

record to permit review of an unpreserved claim, it

does not change the fundamental purpose of either

an articulation or the limited exception under Practice

Book § 61-10 (b).
Finally, we note that irrespective of the limits of Practice Book § 61-10, a reviewing court may, in the exercise

of its authority under Practice Book § 60-2, orderrectification of the record regarding an unpreserved claim

when the interests of justice so demand. Absent an

extraordinary case, however, the use of such power to

remedy an inadequate record for review would plainly

subvert Practice Book § 61-10 (a). We have not been

asked to invoke such authority in the present case.

Given that the deficiencies in this record should have

been readily apparent, the present case would be an

unlikely candidate for the exercise of such authority in

any event.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.