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STATE OF CONNECTICUT v. JOSE RONALD JOSEPH

(AC 38473)

Sheldon, Beach and Harper, Js.

Argued February 8—officially released June 27, 2017

(Appeal from Superior Court, judicial district of

Stamford-Norwalk, Comerford, J.)

Allison M. Near, assigned counsel, for the appellant (defendant).

Matthew A. Weiner, assistant state’s attorney, with

whom, on the brief, were Richard J. Colangelo, Jr.,

state’s attorney, and Maureen Ornousky, senior assistant state’s attorney, for the appellee (state).
Opinion

HARPER, J. The defendant, Jose Ronald Joseph,

appeals from the judgment of conviction,rendered after

a jury trial, of two counts of sexual assault in the first

degree in violation of General Statutes § 53a-70 (a) (2)

and two counts of risk of injury to a child in violation

of § 53-21 (a) (2). On appeal, the defendant claims that

the trial court (1) violated his statutory right under

General Statutes § 54-82m to a speedy trial, (2) violated

his sixth amendment right to a speedy trial, (3) violated

his right to procedural due process by not holding hearings on his motions for a speedy trial, and (4) committed

plain error in providing a constancy of accusation

instruction to the jury. We affirm the judgment of the

trial court.

From the evidence adduced at trial, the jury reasonably could have found the following facts. The victim

was eight years old when the defendant began dating

her mother, E.1 E soon became pregnant with the defendant’s child and the defendant moved into her home.

Although E worked two jobs and was ‘‘[a]lways working

overtime,’’ the defendant was unemployed. As a result,

the defendant served as the victim’s primary caregiver.

While the victim’s mother was at work, the defendant

began playing ‘‘games’’ with the victim, in which he

digitally penetrated her vagina. The victim testified that,

while playing ‘‘these games, [the defendant] would suck

on my ear. He would twirl his fingers in my belly button.

He would have me . . . sit on the couch with him with

the covers over[and] there would be excessive touching

in my private areas.’’ The defendant proceeded to touch

the victim in her ‘‘private areas’’ on a weekly basis.

That conduct continued after the birth of the defendant’s daughter, A, who was the victim’s half-sister. On

one occasion, the victim encountered the defendant ‘‘on

the couch with my little sister underneath the covers.’’

When she observed the defendant touching A ‘‘in her

private areas,’’the victim asked if her sister could ‘‘come

play with me.’’ As the victim recounted at trial, the

defendant ‘‘refused and got angry. He stood up and

pushed me. And then he told me that he knew what I

wanted. And then he held me down and he penetrated

my vagina [with] his penis.’’ In the years that followed,

the defendant continued to touch the victim and penetrate her with his penis on multiple occasions. That

conduct transpired until the victim was nearly thirteen

years old.

When the victim was almost fourteen years old, she

broke down during an argument with her mother and

told her that the defendant had raped and molested

her. E asked the defendant if that was true; when he

said no, the discussion ended. Later that night, the victim heard her mother crying in the shower. Nevertheless, E did nothing in response to her daughter’s
allegations.

In the years that followed, the victim ‘‘couldn’t even

stay in [her] home because [the defendant] was consistently there.’’ She therefore routinely ‘‘made arrangements so that [she] would not be home.’’ The victim

also would ‘‘cut’’ herself, and attempted to kill herself

on multiple occasions.

When the victim was nineteen years old, she informed

the police of her physical encounters with the defendant. During their investigation of those allegations, the

police visited the victim’s former bedroom and discovered two writings that were ‘‘scratched into the wall’’

behind a mirror. The writings stated, ‘‘I hate Ronald,’’2

and, ‘‘God will save me.’’ The victim testified that she

wrote those statements on her bedroom wall when she

was in middle school. Detective Christie Girard, who

investigated the victim’s former bedroom, similarly testified that the writings appeared to have been there

‘‘[f]or a while.’’ The defendant corroborated that assessment at trial when he testified that he discovered the

‘‘I hate Ronald’’ writing on the victim’s bedroom wall in

‘‘February, 2002.’’3 Photographs of those writings were

introduced into evidence at trial.

The defendant was arrested on May 21, 2010, and

subsequently was charged with two counts of sexual

assault in the first degree and two counts of risk of

injury to a child. On June 29, 2010, the defendant first

appeared before the trial court. At that time, he was

represented by a public defender, Attorney Howard A.

Ehring, who requested that the matter be continued

until July 20, 2010. On July 20, 2010, Ehring and the

defendant again appeared before the court. At that time,

Ehring requested a signed copy of the warrant and a

continuance for one week.

On July 27, 2010, Ehring appeared briefly before the

court to indicate that he had filed a motion forreduction

of the defendant’s bond. He requested a hearing on

that motion on August 4, 2010. At the August 4, 2010

proceeding, Ehring requested a further continuance to

ensure that ‘‘a family member [of the defendant could]

speak on his behalf.’’ Ehring also requested the assistance of a French interpreter.4 The court granted those

requests and continued the matter until August 10, 2010.

At the outset of the August 10, 2010 proceeding, Ehring informed the court of a potential conflict of interest

in his representation of the defendant. He therefore

filed a motion for the appointment of a special public

defender and requested a continuance, which the court

granted. On August 31, 2010, the defendant and Ehring

appeared before the court, at which time the court

appointed Attorney John W. Imhoff, Jr., as the defendant’s special public defender. Because Imhoff was

recovering from knee surgery, the court continued the

matter for one month.
On October 1, 2010, Imhoff appeared before the court

with the defendant. At that time, the prosecutor indicated that she had provided discovery to Imhoff earlier

that day. Imhoff, in turn, requested a continuance for

three weeks to review those materials with the defendant, which the court granted. Imhoff appeared briefly

before the court on November 18, 2010, and requested

a further continuance, which the court again granted.

On the morning of January 5, 2011, Imhoff and the

defendant appeared before the court. The court began

by noting that a ‘‘Haitian interpreter’’ would not be

available until later in the afternoon and inquired as to

whether the defendant spoke ‘‘any English at all . . . .’’

Imhoff replied, ‘‘Yes, Your Honor. He’s written me several letters [and] his grammar is better than most of

my clients.’’ Imhoff nevertheless informed the court

that the defendant ‘‘would preferto have’’ the assistance

of an interpreter. The court thus continued the matter

until that afternoon. Later in the day, however, the prosecutorinformed the court that, due to a miscommunication, the interpreter had left the courthouse. The

interpreter’s office further indicated that it needed ‘‘a

little over a week’s continuance to get somebody here.’’

Accordingly, the court continued the matter.

Imhoff and the defendant appeared before the court

two weeks later. The prosecutor informed the court

that ‘‘[t]here’s been no indication that [the defendant]

had a willingness to plead to any of the charges that

the state would proceed on.’’ Imhoff confirmed that

account and opined that the matter should be placed

on the firm jury list, which the court agreed to do at

that time.

On December 23, 2011, the defendant filed a pro se

motion for a speedy trial. That one page motion was

completed on a preprinted form and was signed by the

defendant. The certification portion of that form, which

indicates the date of service on the Office of the State’s

Attorney, was left blank. That motion was denied on

January 4, 2012. The clerk who signed the ‘‘order’’ portion of the motion by circling ‘‘denied’’ and writing,

‘‘Motion filed pro se, defendant is represented by an

attorney. Copy mailed to [the defendant].’’

On February 7, 2012, the defendant attempted to file

a second pro se motion for a speedy trial. That motion

once again utilized a preprinted form. The defendant

did not sign that motion or complete the certification

portion to indicate that it was served on the Office of

the State’s Attorney. The motion was accompanied by

a one paragraph note that stated: ‘‘This missive, it’s to

inform that I called ‘Maitre’ Imhoff today . . . and left

a message at his office asking him to go to the clerk’s

office . . . to signed [and] completed the ‘Motion for

Speedy Trial’ encl. Therefore, I respectfully implore the

clerk to inform him on reception of this missive.’’ There
is no indication in the record of any court action on

thatrequest, apart from the following handwritten notation: ‘‘3/1/12 per Attorney Imhoff: he has no intent to

file this motion [and] he withdraws what was filed by

his client.’’

On April 5, 2012, the defendant filed a third pro se

motion for a speedy trial, again utilizing the same preprinted form. Although he signed that form, which was

accompanied by another one paragraph note, he did

not complete the certification portion to indicate that

he had served it on the Office of the State’s Attorney.

The clerk who signed the ‘‘order’’ portion of the motion

circled ‘‘denied’’ and wrote, ‘‘(White, J.) Denied—filed

pro se; defendant is represented, counsel does not want

to file.’’ While the defendant was attempting to file those

pro se motions with the court, Imhoff filed several unrelated motions on his behalf, including a motion for

a bill of particulars, a ‘‘motion for production of the

Department of Children and Families’ medical and psychiatric records of the state’s witness,’’ and a motion

‘‘for notice of subject matter of proposed expert testimony.’’

On October 17, 2012, Attorney Haldan E. Connor, Jr.,

filed an appearance in lieu of Imhoff as the defendant’s

counsel.5 On November 1, 2012, Connor appeared

before the court, at which time the prosecutorremarked

that she believed that Connor ‘‘being new to the case

. . . probably needs a little bit more time to talk to his

client prior to setting this case down for a trial date.’’

Connor concurred and requested a continuance until

November 15, 2012, which the court granted. When

Connor appeared before the court on that date, however, he informed the court that the matter ‘‘should go

back on the jury list’’ because ‘‘[w]e weren’t able to

reach any kind of resolution’’ with the state.

On November 26, 2012, the defendant attempted to

file a pro se motion to dismiss. That handwritten motion

set forth ten distinct grounds, including the denial of

his right to a speedy trial.6 The defendant further

requested a hearing on his motion. There is no indication in the record that the defendant provided a copy

of that motion to the state or that the court took any

action on the defendant’s request. Furthermore, on the

day that the defendant’s motion to dismiss was

received, a criminal caseflow coordinator, Ryan Flanagan, sent a written response to the defendant. In that

correspondence, Flanagan advised the defendant that

‘‘[w]e cannot accept or file motions from defendan[ts]

who are currently represented by attorneys. Our

records indicate [that] Attorney Connor has filed an

appearance in your case. Therefore, we cannot accept

your motion and it is being returned to you. If you have

any questions you can contact your attorney . . . .’’

The letter then recited Connor’s contact information.

On April 16, 2013, Attorney Matthew Couloute filed
an appearance in lieu of Connor as the defendant’s

counsel.7 On December 11, 2013, the parties appeared

before the court, at which time the state indicated that

the defendant faced a maximum possible exposure of

eighty years incarceration on all of his pending charges.

The state then formally offered the defendant the opportunity to enter a guilty plea to one count of sexual

assault in the first degree in exchange for ‘‘a ten year

sentence’’ with a two year mandatory minimum, ten

years of special parole and registration as a sexual

offender. The defendant rejected that offer. Couloute

informed the court thatthe defendant proposed a counteroffer under which he would plead guilty in exchange

for a sentence of time already served. The court summarily rejected that counteroffer.

At that proceeding, the defendant contended that he

had not been provided with any notice of the charges

against him, stating that ‘‘I want to know what’s . . .

the accusation. . . . I don’t have no notion of the accusation. I don’t have no due process. . . . [The state has

not] accused me of anything.’’ In response, the court

apprised the defendant that the information contained

four counts alleging sexual assault in the first degree

and risk of injury to a child. Couloute then informed

the court that, contrary to his client’s representation,

he had spoken with the defendant about those offenses

and had explained to him their elements and the range

of possible penalties.

Laterthat day, jury selection forthe defendant’s criminal trial commenced, and a trial was scheduled for the

following month. That trial did not take place due to

the death of Couloute’s father. As Couloute explained

to the court on February 24, 2014, in late December

his ‘‘father had a stroke and was hospitalized [and] he

subsequently passed away on January 7th.’’ Couloute,

therefore, was unavailable while tending to ‘‘those concerns and his estate.’’ As a result of those ‘‘extraordinary

family circumstances,’’ the court declared a mistrial

and dismissed the potential jurors by agreement of the

parties. The parties agreed to begin selecting a new jury

on April 8, 2014.

Couloute and the defendant appeared before the

court on that date. At the outset, the court explained

that, due to unforeseen circumstances, jury selection

would be delayed by one day. The court then asked the

parties if they wanted to put any other matters on the

record. At that time, Couloute informed the court that

communications with the defendant ‘‘ha[d] broken

down.’’ Couloute explained that it was the defendant’s

position that ‘‘no one has reviewed his file with him.’’

Couloute indicated that he had met with the defendant

one day earlier at the correctional facility and discussed

his file with him, as he had done on prior occasions.

Couloute also informed the court of a disagreement

over trial strategy, as the defendant was ‘‘adamant’’ in
his desire to call certain witnesses. Couloute had

advised the defendant that he would not call those

witnesses, stating that ‘‘[s]trategically, I don’t think it’s

smart to call them. And at this point in time, when it

comes to that matter, I don’t think it’s prudent to put

those witnesses on the witness list.’’ Couloute indicated

that those witnesses were minors whom he believed

‘‘add nothing to the . . . case that would help defend

[the defendant]. . . . I do believe the use of these witnesses and the context in which their testimony would

be offered isn’t relevant, nor is it probative . . . or

useful for his . . . defense.’’ Couloute notified the

court that the defendant ‘‘wanted to make sure that the

court was aware that [Couloute] refused to call those

witnesses.’’ Couloute concluded by stating, ‘‘I’m not

sure that [the defendant] feels that I can effectively

represent him without using these witnesses. But that’s

the place we are in.’’

In response, the court noted that this development

was on the eve of trial and years after the defendant’s

arrest. It then addressed counsel, in relevant part, as

follows: ‘‘Either I can let you out of this thing and [the

defendant] can represent himself if he wants to. He has

that right, if he wants to do that. . . . You’re a perfectly

competent trial lawyer . . . and we’re not going to play

these games on the eve of trial here. This is purely

dilatory. This is nonsense. I’m not going to let anybody

manipulate the system to the detriment of the people

here. . . . [N]obody on my watch will manipulate the

system, Mr. Couloute. And that’s exactly what we’re

doing here. This man has been through two or three

lawyers. And every time we’re about ready to go, something comes up; nonsense, absolute nonsense. If, after

we pick this jury—we’re going to commence the evidence on [April 22, 2014]—if you think that somebody

has to be heard in terms of an offer of proof, I would

be delighted to entertain that. I’ll make whatever determinations I deem are appropriate. No one will see to

it more than me that he’ll get a fair trial.’’

Couloute then stated that, in light of the defendant

‘‘being adamant regarding witnesses being called, I suggest that . . . if he clearly or if he truly believes that

these witnesses are imperative to his defense, that he

either seek other counsel or represent himself. But for

the record, I am telling the court and [the defendant],

I will not be calling those witnesses.’’ The court concluded by informing the parties that if the defendant

‘‘wishes to consider representing himself in this matter,

based upon what you have told me, I will see to it that

a Faretta canvass8

is done here, and he can proceed

on his own, if he wishes to do so. If it’s that much of

a fissure that has taken place, he can do that. It isn’t

going to delay the trial. If he wants to pick them by

himself, that’s up to him. . . . [T]hat’s his constitutional prerogative.’’ (Footnote added.) The court then

asked the defendant if he had ‘‘anything to say about
[his] representation’’ by Couloute; the defendant did

not respond in any manner. With that, the court stood

in recess. At no time thereafter did the defendant indicate a desire to represent himself.

A trial was held over the course of four days in April,

2014. At its conclusion, the jury found the defendant

guilty on all counts. The court rendered judgment

accordingly and sentenced the defendant to a total

effective term of twenty years incarceration, of which

five years were a mandatory minimum. From that judgment, the defendant now appeals.

I

The defendant first claims that the court violated his

statutory right to a speedy trial under § 54-82m. For

two distinct reasons, we disagree.

Section 54-82m ‘‘requires the judges of the Superior

Court to adopt rules that are necessary to assure a

speedy trial for any person charged with a criminal

offense . . . . With respect to a defendant who is

incarcerated in a correction institution of this state

pending trial, § 54-82m requires the rules to provide:

(1) in any case in which a plea of not guilty is entered,

the trial of a defendant charged in an information or

indictment with the commission of a criminal offense

shall commence . . . within eight months from the filing date of the information or indictment or from the

date of arrest, whichever is later; and (2) if a defendant

is not brought to trial within the time limit set forth in

subdivision (1) and a trial is not commenced within

thirty days of a motion for a speedy trial made by the

defendant at any time after such time limit has passed,

the information or indictment shall be dismissed. Such

rules shall include provisions to identify periods of

delay caused by the action of the defendant, or the

defendant’s inability to stand trial, to be excluded in

computing the time limits set forth in subdivision (1).

. . . Practice Book § 43-40 then sets forth ten circumstances constituting those periods of time [that] shall

be excluded in computing the [eight months] within

which the trial of a defendant . . . must commence

pursuantto [PracticeBook §] 43-39.’’(Citations omitted;

internal quotation marks omitted.) State v. Cote, 101

Conn. App. 527, 532–33, 922 A.2d 322, cert. denied, 284

Conn. 901, 931 A.2d 266 (2007).

‘‘The determination of whether a defendant has been

denied his right to a speedy trial is a finding of fact,

which will be reversed on appeal only if it is clearly

erroneous. . . . The trial court’s conclusions must

stand unless they are legally and logically inconsistent

with the facts.’’ (Internal quotation marks omitted.)

State v. Jeffreys, 78 Conn. App. 659, 669–70, 828 A.2d

659, cert. denied, 266 Conn. 913, 833 A.2d 465 (2003),

overruled in part on other grounds by State v. Polanco,

308 Conn. 242, 248, 253, 61 A.3d 1084 (2013). The proper
application of § 54-82m and our related rules of practice

require a factual finding as to whether the applicable

time limit has passed. That inquiry, in turn, necessitates

factual findings as to whether certain periods of delay

are excluded from that calculation. See Practice Book

§ 43-40.9

In State v. Miller, 121 Conn. App. 775, 786–87, 998

A.2d 170, cert. denied, 298 Conn. 902, 3 A.3d 72 (2010),

this court considered a case in which the trial court

summarily denied a motion for a speedy trial and the

defendant thereaftertook no steps to ascertain the basis

of that ruling. As the court noted, ‘‘the [trial] court

did not address the defendant’s § 54-82m claim. The

defendant neverfiled a motion for articulation pursuant

to Practice Book § 66-5. Additionally, the record is

devoid of any information that would apply to whether

any of the relevant time period was subject to exclusion;

see Practice Book § 43-40; from the speedy trial calculus.’’ For that reason, this court concluded that ‘‘the

record is inadequate to review the defendant’s claim.’’

In so doing, the court indicated that, without those

necessary factual findings, its decision would be

entirely speculative. State v. Miller, supra, 787.

In the present case, the trial court likewise did not

address the claims set forth in the defendant’s motions

for a speedy trial, nor did it make any factual findings

related thereto. Given the state of the record before us,

this court cannot properly engage in meaningful review

of the defendant’s claim without resort to speculation

and conjecture, which ‘‘have no place in appellate

review.’’ (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291

Conn. 502, 510, 970 A.2d 578 (2009).

The defendant’s claim is plagued by a further infirmity. It is undisputed that the defendant was represented at all times by counsel when he attempted to

file his pro se motions. As such, his claim is foreclosed

by well established precedent.

In State v. Gibbs, 254 Conn. 578, 608, 758 A.2d 327

(2000), the defendant, despite being represented by

counsel, made a pro se motion to dismiss predicated

on ‘‘an alleged violation of his federal and state constitutional right to a speedy trial,’’ which the trial court

denied. On appeal, our Supreme Court emphasized that,

although ‘‘a defendant either may exercise his right to

be represented by counsel . . . or his right to represent

himself . . . he has no constitutional right to do both

at the same time.’’(Citations omitted; emphasis in original.) Id., 610. The court continued: ‘‘It is equally well

settled that, having made the knowing, intelligent and

voluntary choice to avail himself of the services of counsel, a defendant necessarily surrenders to that counsel

the authority to make a wide range of strategic and

tactical decisions regarding his case. . . . Although a

represented defendant does retain the absolute right to
make a limited number of choices regarding his case

. . . neither the United States Supreme Court, nor this

court, has ever expanded that extremely narrow class

to include the choice of whether to file a motion to

dismiss for lack of a speedy trial. Indeed, such a choice

clearly is one of the vast panoply of trial decisions

for which one retains an experienced and competent

attorney.’’ (Citations omitted.) Id., 610–11. In light of

certain representations made by the defendant’s counsel to the trial court, the Supreme Court concluded that

counsel’s ‘‘decision not to file a motion to dismiss very

likely was tactical in nature.’’ Id., 612. For that reason,

the court held that ‘‘the defendant had no authority to

make the motion pro se.’’ Id.; see also State v. Cote,

supra, 101 Conn. App. 532 n.6 (‘‘the defendant had no

authority to make a pro se oral motion to dismiss on

speedy trial grounds while he was represented by

counsel’’).

That logic applies equally in the present case. Here,

the defendant sought to file pro se motions for a speedy

trial and to dismiss, despite the fact that he was represented by counsel at all times. Moreover, his trial counsel on multiple occasions informed the clerk’s office

that he did not want to pursue such motions with the

court.10 As in Gibbs, we must presume that counsel’s

decision was tactical in nature. In addition, when the

defendant attempted to file his pro se motion to dismiss,

the caseflow coordinator responded in writing to indicate that, consistent with the foregoing precedent, the

court ‘‘cannot accept or file motions from defendan[ts]

who are currently represented by attorneys.’’ Yet at no

time did the defendant request to represent himself.

Having availed himself of legal counsel, the defendant

lacked the authority to file the pro se motions at issue

in the present case.

II

The defendant next claims that the court violated his

constitutional right to a speedy trial. The sixth amendment to the United States constitution provides in relevant part: ‘‘In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial . . . .’’11

The sixth amendment right to a speedy trial is made

applicable to the states through the due process clause

of the fourteenth amendment. See Klopfer v. North Carolina, 386 U.S. 213, 222–23, 87 S. Ct. 988, 18 L. Ed. 2d

1 (1967).

‘‘Although the right to a speedy trial is fundamental,

it is necessarily relative, since a requirement of unreasonable speed would have an adverse impact both on

the accused and on society.’’ State v. Johnson, 190Conn.

541, 544, 461 A.2d 981 (1983). In Barker v. Wingo, 407

U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972),

the United States Supreme Court articulated a balancing

test to determine whether the right to a speedy trial

has been violated, which entails consideration of the
‘‘[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.’’ As our Supreme Court has explained, ‘‘[u]nder

Barker, the determination of whether such rights have

been violated requires a case-by-case approach in which

the court examines the factual circumstances in light

of [that] balancing test . . . .’’ State v. Smith, 289 Conn.

598, 613, 960 A.2d 993 (2008); accord United States v.

Marshall, 669 F.3d 288, 296 (D.C. Cir. 2011) (‘‘factual

findings are required pursuant to Barker v. Wingo

[supra, 514]’’); United States v. Fredrick, 334 Fed. Appx.

727, 728 (5th Cir. 2009) (‘‘[i]n reviewing a speedy trial

claim, this court reviews factual findings for clear

error’’), cert. denied, 559 U.S. 986, 130 S. Ct. 1725, 176

L. Ed. 2d 204 (2010).

In this case, the record before us lacks the requisite

findings under § 54-82m, which ‘‘codifies a defendant’s

constitutionalright to a speedy trial’’; State v. Hampton,

66 Conn. App. 357, 366–67, 784 A.2d 444, cert. denied,

259 Conn. 901, 789 A.2d 992 (2001); and Practice Book

§ 43-40 regarding the length of delay, including any periods of time that, under our rules of practice, are

excluded from the calculation thereof. See footnote 9

of this opinion. The record also does not contain any

findings as to the reasons for the delay.12 The lack of

such findings also impairs our ability to properly consider the question of prejudice. We note further that, at

oral argument before this court, the defendant’s counsel

acknowledged that ‘‘there is no evidence in this record

of prejudice.’’ Moreover, as discussed in part I of this

opinion, the defendant did not properly assert his right

to a speedy trial before the trial court.13

State v. Smith, supra, 289 Conn. 598, is instructive

in this regard. In that case, ‘‘the defendant did not ask

the trial court to apply Barker and, therefore, the court

did not make the factual findings required under that

test.’’ Id., 613. Because ‘‘the record [did] not contain all

of the relevant factual findings,’’ our Supreme Court

declined to review the defendant’s sixth amendment

claim. Id.; see also State v. Friend, 159 Conn. App.

285, 342, 122 A.3d 740 (concluding that record was

inadequate to review speedy trial claim), cert. denied,

319 Conn. 954, 125 A.3d 533 (2015). Guided by that

precedent, we decline to further consider the defendant’s claim.

III

The defendant also contends that the court violated

his right to procedural due process by failing to hold

hearings on his pro se motions for a speedy trial. The

defendant did not preserve this claim at trial and now

seeks review pursuant to State v. Golding, 213 Conn.

233, 239–40, 567 A.2d 823 (1989), as modified by In re

Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).14

Even if he could surmount the fact that the record

before us is largely silent as to what transpired before
the trial court with respect to his pro se motions for a

speedy trial, he still could not prevail, as he lacked

authority to file those motions under established law.

See State v. Gibbs, supra, 254 Conn. 612; State v. Cote,

supra, 101 Conn. App. 532 n.6. Moreover, the defendant’s counsel in the present case affirmatively indicated to the trial court that he did not want to pursue

those motions. See footnote 10 of this opinion. In light

of the foregoing, the defendant’s claim must fail.

IV

The defendant maintains, as a final matter, that the

court committed plain error in providing a constancy

of accusation charge to the jury. We disagree.

The following additional facts are relevant to the

defendant’s claim. At trial, the victim was asked if she

had spoken to any peers about ‘‘what had happened’’

with the defendant. The victim testified that, when she

was sixteen years old, she confided in her ‘‘best friend,’’

D, about that experience. D later testified at trial as a

constancy of accusation witness. In his testimony, D

stated that, while they were in high school together,

the victim told him that she was sexually assaulted by

a person she described as her stepfather ‘‘when she

was a little girl.’’ D further indicated that the victim

did not provide any specifics regarding the nature of

those assaults.

The victim’s mother, E, also testified as a constancy

of accusation witness. The victim earlier had testified

that she had told E that the defendant had raped and

molested her. In her testimony, E described the time

that, during an argument regarding the defendant, her

daughter ‘‘lashed out that he had touched her.’’ E testified that the victim informed her that the defendant

had sexually assaulted her, and when and where those

assaults transpired.

Following the close of evidence, the court held a

charging conference with the parties. At the outset, the

court noted that ‘‘counsel has had a copy of the charge

in hand for a couple of days.’’ The court then proceeded

to review the substance of its jury charge with the

parties. With respect to its instruction on constancy of

accusation testimony,15 the court stated: ‘‘On the constancy of accusation, there were two witnesses that

were constancy witnesses, in part the mother of the

[victim] here, and [D]. Do you both agree that the constancy charge is a fair charge to set forth [to the jury]?’’

Both defense counsel and the prosecutor answered

affirmatively.

On appeal, the defendant reverses course and contends that the court’s constancy of accusation instruction was improper. In response, the state submits that

the defendant has waived his claim of instructional

error.

In State v. Kitchens, 299 Conn. 447, 482–83, 10 A.3d
942 (2011), our Supreme Court held that ‘‘when the trial

court provides counsel with a copy of the proposed

jury instructions, allows a meaningful opportunity for

their review, solicits comments from counsel regarding

changes or modifications and counsel affirmatively

accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential

flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct

appeal. Such a determination by the reviewing court

must be based on a close examination of the record and

the particular facts and circumstances of each case.’’

Those criteria all are satisfied in the present case.

The court provided counsel with a copy of its proposed

jury charge days in advance. It thereafter conducted a

charging conference, at which it solicited feedback

from the parties. During that conference, defense counsel raised no objection to the constancy of accusation

instruction. Indeed, counsel expressly indicated that he

believed that the instruction was a ‘‘fair’’ one. Accordingly, we conclude that the defendant implicitly waived

his jury instruction claim under the rule articulated

in Kitchens.

That determination does not end our inquiry, as the

defendant claims that the judgment should be reversed

pursuant to the plain error doctrine. See Practice Book

§ 60-5. During the pendency of this appeal, our Supreme

Court clarified that ‘‘a Kitchens waiver does not preclude plain error review.’’ State v. McClain, 324 Conn.

802, 812, 155 A.3d 209 (2017). We therefore consider

the merits of the defendant’s claim.

Review under the plain error doctrine is ‘‘reserved

for only the most egregious errors’’; id., 814; and ‘‘truly

extraordinary situations [in which] the existence of the

error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.’’ (Internal quotation marks omitted.) State v.

Myers, 290 Conn. 278, 289, 963 A.2d 11 (2009). To prevail

under the plain error doctrine, an appellant must demonstrate, as a threshold matter, the existence of an error

‘‘that it is patent [or] readily [discernible] on the face

of a factually adequate record, [and] also . . . obvious

in the sense of not debatable.’’ (Internal quotation

marks omitted.) State v. McClain, supra, 324 Conn. 812.

The defendant has not met that substantial burden.

Under Connecticut law, constancy of accusation evidence—which generally consists of testimony by ‘‘a

person to whom a sexual assault victim has reported

the assault’’—is ‘‘admissible only to corroborate the

victim’s testimony and not for substantive purposes.’’

State v. Troupe, 237 Conn. 284, 304, 677 A.2d 917

(1996).16 The instruction provided in the present case

comports with that precedent, as it informed the jury

that the constancy of accusation testimony provided

by D and E was ‘‘admitted solely to corroborate [the
victim’s] testimony here in court, it’s to be considered

by you for the limited purpose of determining the credibility and the weight to be given her testimony before

you. In other words, it’s not admitted for the truth of

those statements but only forthe purpose of corroborating what she testified to you—testified before you, here

in court.’’

The defendant nonetheless argues that the jury likely

was misled by the court’s failure to define the term

‘‘corroboration.’’ Our appellate courts have rejected

such a claim twice in the past ten months. See State v.

Daniel W. E., 322 Conn. 593, 609, 142 A.3d 265 (2016)

(concluding that court’s constancy of accusation

instruction ‘‘accurately portrayed the law and did not

mislead the jury’’ despite ‘‘the trial court’s failure to

define the word ‘corroborate’ ’’); State v. Roberto Q.,

170 Conn. App. 733, 744–45, 155 A.3d 756 (same), cert.

denied, 325 Conn. 910, A.3d (2017). In the present case, the court plainly advised the jurors of the

limited purpose for which they could consider the constancy of accusation testimony provided by D and E.

Accordingly, we cannot conclude that the court’s constancy of accusation instruction constituted an error

‘‘obvious in the sense of not debatable.’’(Internal quotation marks omitted.) State v. McClain, supra, 324

Conn. 812.

Furthermore, the defendant has not demonstrated

that manifest injustice resulted from the court’s allegedly improper instruction, as the plain error doctrine

requires. See State v. Coward, 292 Conn. 296, 307, 972

A.2d 691 (2009). Although the defendant on appeal

argues that the court should have defined the term

‘‘ ‘corroboration’ such that the jury would be able to

determine the difference between an appropriate use

of constancy [of] accusation evidence (to prove that a

complaint was made), and an inappropriate use of

[such] evidence (to prove that the complaint was true),’’

the record reveals that the defendant expressly encouraged the latter practice at trial. Specifically, his counsel

elicited testimony from E indicating that she did not

believe the victim’s initial disclosure of sexual assault,

and then argued to the jury that it should discredit the

victim’s testimony in light of that evidence.17 When a

party so utilizes allegedly improper evidence, it cannot

prevail under the plain error doctrine. See, e.g., State

v. Ampero, 144 Conn. App. 706, 715, 72 A.3d 435 (‘‘[t]he

defendant cannot show manifest injustice because his

defense counsel waived this claim by failing to take

action against the admission of such evidence and then

strategically used the evidence to his advantage’’), cert.

denied, 310 Conn. 914, 76 A.3d 631 (2013); State v.

Hawkins, 51 Conn. App. 248, 256, 722 A.2d 278 (1998)

(‘‘[h]aving used some of this [the constancy of accusation] evidence to his advantage in his closing argument,

the defendant cannot now establish that any alleged

improper evidentiary ruling . . . deprived him of a fair
trial’’), cert. denied, 281 Conn. 901, 916 A.2d 46 (2007).

The defendant’s invocation of the plain error doctrine,

therefore, is unavailing.

The judgment is affirmed.

In this opinion the other judges concurred.

1

In accordance with our policy of protecting the privacy interests of the

victims of sexual abuse and the crime of risk of injury to a child, we decline

to identify the victim or others through whom the victim’s identity may be

ascertained. See General Statutes § 54-86e.

2 At trial, the victim identified the defendant as ‘‘Ronald Joseph.’’

3

In February, 2002, the victim was eleven years old.

4 The record reflects that the defendant is a citizen of Canada who speaks

in a French dialect.

5 The record before us is bereft of any explanation for that substitution.

The record further does not contain any indication that Connor was a courtappointed attorney.

6 The defendant’s November 26, 2012 motion to dismiss states in relevant

part that he ‘‘requests the court to dismiss the information on the ground that:

‘‘(1) The information failed to charge and offense; or

‘‘(2) The institution of the prosecution was defective; or

‘‘(3) The statute of limit has expired; or

‘‘(4) The court has no jurisdiction over the subject matter; or

‘‘(5) The court has no jurisdiction over the defendant; or

‘‘(6) There is insufficient evidence or cause to justify the bringing or

continuing of such information or the placing of the defendant on trial; or

‘‘(7) The defendant has been denied a speedy trial;

‘‘(8) The law defining the offense charges is unconstitutional or otherwise

invalid; or

‘‘(9) The affidavit relied on for the issuance of the arrest warrant is

insufficient; or

‘‘(10) Any other legally sufficient grounds the defendant can establish.’’

7 The record lacks any explanation for that substitution. In the appendix

to its appellate brief, the state has included a copy of a petition for a writ

of habeas corpus filed by the defendant on December 31, 2014. In that

petition, the defendant avers that Couloute was privately retained. We properly may take judicial notice of that pleading. See Karp v. Urban Redevelopment Commission, 162 Conn. 525, 527, 294 A.2d 633 (1972) (‘‘[t]here is no

question . . . concerning our power to take judicial notice of files of the

Superior Court, whether the file is from the case at bar or otherwise’’);

Folsom v. Zoning Board of Appeals, 160 Conn. App. 1, 3 n.3, 124 A.3d 928

(2015) (taking ‘‘judicial notice of the plaintiff’s Superior Court filings in . . .

related actions filed by the plaintiff’’).

8 See Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 45 L. Ed. 2d

562 (1975).

9 Practice Book § 43-40 outlines various circumstances in which periods

of time are excluded from the calculation of the time limitations of § 54-

82m. They include periods of time attributable to, inter alia, continuances

granted by the judicial authority at the request of the defendant, the unavailability of counsel for the defendant, and ‘‘delay occasioned by exceptional

circumstances.’’ Practice Book § 43-40 (10).

10 As the defendant notes in his principal appellate brief, ‘‘his attorney

repeatedly informed the clerk that he did not want to file the motion for a

speedy trial.’’

11 Although the defendant also alleges a violation of his right under article

first, § 8, of the Connecticut constitution, he has provided no independent

analysis thereof. Accordingly, we consider his claim underthe federal constitution alone. See State v. Saturno, 322 Conn. 80, 113 n.27, 139 A.3d 629 (2016).

12 As the state emphasizes in its appellate brief, the record is silent as to

why no proceedings transpired before the court from January 5, 2011 to

October 17, 2012, and from November 15, 2012 to December 11, 2013.

13 We reiterate that, pursuant to State v. Gibbs, supra, 254 Conn. 612, the

defendant lacked authority to file his pro se motions for a speedy trial and

to dismiss. Furthermore, it is undisputed that the defendant failed to serve

copies of those motions on the state. In so doing, he undermined an essential

purpose of § 54-82m. As the Supreme Court has observed, the legislature

enacted that statute ‘‘with the intent that the defendant’s motion would alert

. . . the state that the clock was running and that, to avoid dismissal of

the charges, the defendant would have to be afforded a trial within thirty
days. . . . The legislature recognized that institutional negligence might

occur . . . and that the defendant’s speedy trial motion would remind the

state that it must commence the trial within thirty days or face a dismissal.

. . . In other words, the motion for a speedy trial is supposed to be the

state’s wake up call. It is intended to [give] the state another crack from

preventing that individual from being set free.’’ (Citations omitted; emphasis

added; internal quotation marks omitted.) State v. McCahill, 265 Conn. 437,

451–52, 828 A.2d 1235 (2003). No such wake-up call was provided to the

state in the present case.

14 Under Golding, ‘‘a defendant can prevail on a claim of constitutional

error not preserved at trial only if all of the following conditions are met:

(1) the record is adequate to review the alleged claim of error; (2) the claim

is of constitutional magnitude alleging the violation of a fundamental right;

(3) the alleged constitutional violation . . . exists and . . . deprived the

defendant of a fair trial; and (4) if subject to harmless error analysis, the

state has failed to demonstrate harmlessness of the alleged constitutional

violation beyond a reasonable doubt.’’ (Emphasis in original; footnote omitted.) State v. Golding, supra, 213 Conn. 239–40.

15 The court’s instruction on constancy of accusation testimony stated in

relevant part: ‘‘If you find that a witness made statements at other times

about the case, whether oral or written, you may consider whether those

statements were consistent or inconsistent with what the witness has testified to here before you in court when weighing their credibility.

‘‘In a case such as this, you may also consider any delay in the reporting

of the alleged incident in evaluating the credibility of the [victim] and the

weight to be given her testimony. In this regard, you’ll recall that you heard

some testimony in the case from Dr. Lawrence Rosenberg, who testified as

to child grooming and of delayed reporting by children, amongst other

things. Any opinions rendered by him are not binding upon you. Such expert

testimony is subject to review at your hands just as any other testimony. You

will size up and give the weight to that testimony as you deem appropriate.

‘‘Now, let me talk to you about a couple of other things before we take a

quick break. Let me talk to you about something called constancy witnesses.

Ordinarily, when someone makes a statement out of court not under oath,

it’s inadmissible. We normally call that hearsay; it’s not tested by an oath.

But there are exceptions, and we have encountered one in this case. The

state has offered evidence of statements made by the [victim] out of court

to certain individuals concerning the alleged crimes, and you’ll recall those

statements were admitted into evidence.

‘‘Please recall the statements made by the [victim] to her mother and to

her friend, [D]. This evidence is admitted solely to corroborate her testimony

here in court; it’s to be considered by you forthe limited purpose of determining the credibility and the weight to be given her testimony before you. In

other words, it’s not admitted for the truth of those statements but only for

the purpose of corroborating what she testified to you—testified before

you, here in court.’’

16 In his principal appellate brief, the defendant argues that ‘‘[t]his case

provides yet another instance of why this court should overrule Troupe

and its progeny.’’ We are not the proper audience for such claims. As an

intermediate appellate body, it is axiomatic that this court is ‘‘bound by

Supreme Court precedent and [is] unable to modify it . . . . [W]e are not

at liberty to overrule or discard the decisions of our Supreme Court . . . .

[I]t is not within our province to reevaluate or replace those decisions.’’

(Citation omitted; internal quotation marks omitted.) State v. Smith, 107

Conn. App. 666, 684–85, 946 A.2d 319, cert. denied, 288 Conn. 902, 952 A.2d

811 (2008).

17 In his closing argument to the jury, defense counsel stated in relevant

part: ‘‘[T]ake into consideration the lack of affect when [the victim] told

the story that she used, the lack of details, the lack of corroboration of the

story, the actions afterward—when I say afterward, after the disclosure. I

wonder why after the disclosure to the mother, everybody went on about

their business. The mother truly didn’t believe her to the point where she

just let the child just go back to the same places, the same routines and

everything else. So, if the mother doesn’t believe her, eight, nine years later,

how are you supposed to believe her? How are you supposed to convict

someone on a statement made that far from the time of the event where

the mother didn’t believe it, when it was going on?’’