BEACH, J.
The defendant, Steven K. Stanley, appeals from the judgment of conviction of 100 counts of criminal violation of a protective order in violation of General Statutes § 53a-223,
The jury reasonably could have found the following facts. The defendant and the victim
Following this incident, on February 14, 2012, the court issued a protective order that required the defendant "not [to] contact [the victim] in any manner, including by written, electronic or telephone contact. . . ." Despite this order, the defendant phoned the victim between forty and ninety times a day for a period of time. On at least one occasion the defendant offered to buy the victim a drink at a bar that she frequented.
On March 18, 2012, the victim called the police to report that the defendant was violating the protective order by telephoning her constantly. East Hartford police Officer Robert A. Vanacore responded by going to her residence and taking her statement. Later that day, the victim called the police a second time; she then reported that the defendant had appeared in front of her house, and, "burn[ing] rubber," drove his motorcycle away at a high rate of speed. The victim's roommate, Gene Lavigne, also gave a statement to the police, confirming that the defendant had driven his motorcycle by the house. While police were interviewing the victim, the defendant called and spoke to her three times.
The defendant chose to represent himself, and following a trial, the jury found the defendant guilty of all 102 counts. The court sentenced the defendant to eighteen years imprisonment with twelve years special parole and imposed a standing criminal protective order. This appeal followed.
The defendant claims that his conviction of 100 counts of violation of a protective order was not supported by sufficient evidence. The defendant admitted that the calls were made from his cell phone, but he argues that the state failed to prove that he personally made the phone calls to the victim. He argues that the number on her caller identification function was blocked. The victim testified that she recognized the defendant's voice on two occasions only. The state argues that there was sufficient evidence to sustain the defendant's conviction in that (1) the victim's phone records listed the calls as having been made from the defendant's cell phone number; (2) the victim identified the defendant's voice on several occasions; (3) the defendant showed consciousness of guilt by writing to his sons to ask them to testify that they made the phone calls; and (4) the defendant demonstrated other intimidating and harassing behavior that was consistent with the repeated phone calls. We agree with the state that there was sufficient evidence to sustain the defendant's conviction of violation of a protective order. Although there was direct evidence that the defendant made only a limited number of the calls, there was circumstantial evidence to support the conclusion that the defendant made the calls as charged in the amended information.
"In reviewing the sufficiency of the evidence to support a criminal conviction 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 reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the
"We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .
"Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . In evaluating evidence, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant's innocence. . . . The [jury] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable." (Internal quotation marks omitted.) State v. Binnette, 86 Conn.App. 491, 496-97, 861 A.2d 1197 (2004), cert. denied, 273 Conn. 902, 868 A.2d 745 (2005).
In support of the charges, the state presented the testimony of the victim, who received the calls, police officers who overheard one of the threatening phone calls, and the victim's phone records. The jury had before it evidence of more than 1750 calls made from the defendant's cell phone to the victim's cell phone. The jury also heard evidence regarding the failed relationship between the victim and the defendant, and his previously threatening behavior. The victim identified his voice on three phone calls made on March 18, 2012.
The defendant claims that the state failed to provide him with his phone records and the victim's phone records in a timely manner and that he therefore was deprived of (1) his right to confront the witnesses against him and (2) his right to present a defense.
Additional facts are helpful to the resolution of the defendant's claims. The police obtained the defendant's phone records at the outset of the investigation. The defendant moved for discovery, including requests for "all facts of [the] arrest" and "all evidence."
On the first day of trial, the state introduced only the victim's phone records. The court admitted the records as a full exhibit on the first day of trial, but the records were not published to the jury until the next day so that copies could be provided to the defendant for his review overnight. The defendant did not object to this arrangement, and did not ask for a continuance to allow for more time to review the victim's phone records. The defendant then used the victim's phone records
The defendant argues that the state's failure to disclose the victim's phone records resulted in a denial of his right to confrontation under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
The defendant raises this claim, for the first time, on appeal and requests review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).
The defendant argues that the phone records were testimonial in nature because they were compiled solely for use against him at trial, and that they were offered to prove the truth of the matter asserted. Because he was not able to cross-examine the maker of the phone records prior to or during trial in violation of his rights under the confrontation clause, he argues, the phone records should not have been admitted into evidence. We conclude that the admission of the victim's phone records into evidence did not implicate a sixth amendment right and, thus, the defendant's claim fails under Golding.
"Answering the threshold question in a Crawford analysis—whether the statements in question were testimonial in nature—also answers whether the defendant has met the burden presented under Golding's second prong, which requires
There was nothing to suggest at trial that the victim's phone records were other than business records of the telephone company. Section 8-4 of the Connecticut Code of Evidence provides in relevant part: "(a) . . . Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter. (b) . . . The writing or record shall not be rendered inadmissible by (1) a party's failure to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence or event recorded or (2) the party's failure to show that such persons are unavailable as witnesses. Either of such facts and all other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of the evidence, but not to affect its admissibility." (Internal quotation marks omitted.) See also General Statutes § 52-180; United States v. Yeley-Davis, 632 F.3d 673, 679 (10th Cir.) (cell phone records not testimonial in nature; thus, no confrontation clause violation occurred), cert. denied, 563 U.S. 969, 131 S.Ct. 2172, 179 L.Ed.2d 951 (2011); State v. Hood, 135 Ohio St.3d 137, 145, 984 N.E.2d 1057 (2012) ("[e]ven when cell-phone companies, in response to a subpoena, prepare types of records that are not normally prepared for their customers, those records still contain information that cell-phone companies keep in the ordinary course of their business"). Because there was nothing to suggest that the automated compilation of records of all customers' calls was other than standard business routine, the records were not testimonial in nature and Crawford did not apply. See Crawford v. Washington, supra, 541 U.S. at 56, 124 S.Ct. 1354. Accordingly, the claim fails under the second prong of Golding.
The defendant argues that his right to present a complete defense pursuant to the sixth amendment to the United States constitution,
The record indicates that the state did not have the victim's phone records until the morning of the first day of trial. The defendant had the opportunity to review them overnight before they were published to the jury. At the time of the entry of the victim's phone records into evidence, the following colloquy took place:
The defendant did not object to this arrangement. The basis for the defendant's argument on appeal is that "[p]recluding the defendant from obtaining the complete phone records, in a timely fashion prior to court, severely prejudiced the defendant. . . ." He does not deny that he obtained the phone records; rather, he now argues on appeal that his defense was compromised by the timing. The defendant points to no concrete way in which his defense was compromised; his principal defense was a claim that, although the calls were made from his phone, the state had not proved that he had made the calls. As noted previously, the defendant used the victim's records to try to impeach her. Significantly, he could have requested a continuance, but he did not. See State v. Lage, 141 Conn.App. 510, 526-27, 61 A.3d 581 (2013) ("[o]ur Supreme Court expressly has declined to impose on the trial courts the duty to order a continuance sua sponte" [internal quotation marks omitted]); Pasiakos v. BJ's Wholesale Club, Inc., 93 Conn.App. 641, 645, 889 A.2d 916, cert. denied, 277 Conn. 929, 896 A.2d 101 (2006). We conclude that the defendant's right to present a defense was not violated.
The defendant claims that the court abused its discretion by declining to suppress or, sua sponte, to strike (1) his phone records and (2) the victim's phone records. We are not persuaded.
In May, 2012, the defendant filed a motion to suppress his phone records and the victim's phone records pursuant to General Statutes § 54-41m,
During trial, Vanacore, called by the state, testified that the victim consented to Vanacore's overhearing a cell phone call between the defendant and the victim. The victim activated the speakerphone option, and Vanacore heard the conversation. Vanacore testified that the code, *67, appeared on the screen, indicating that someone was "trying to block their phone number from the sender to the receiving phone calls." He further testified that the defendant's phone records reflected approximately 1750 phone calls from the defendant to the victim, that the *67 code preceded the defendant's phone number
In the course of his investigation, Vanacore obtained the defendant's phone records pursuant to the provisions of General Statutes § 54-47aa, which authorizes law enforcement officers to obtain records from telecommunication companies.
The defendant argues that the court abused its discretion in failing to "suppress and strike the defendant's phone records and testimony about them, in violation of the law of the case and his right to due process, a fair trial, and to present a defense." He argues that the phone records should have been suppressed because the police violated § 54-47aa (d) by failing to notify him within forty-eight hours of the issuance of the ex parte order permitting the police to obtain the phone records. He also argues that the court erred in admitting Vanacore's testimony regarding facts contained in the phone records. We are not persuaded.
The defendant cannot prevail on his claim that the court erred in declining to grant his motion to suppress.
The defendant also argues that the court erred in not striking sua sponte the portion of Vanacore's testimony that pertained to the defendant's phone records. This argument is slightly different from the claim regarding the motion to suppress. The claim was not preserved
The defendant also claims, with regard to the victim's phone records, that the court erred in not granting his motion to suppress and erred in not striking the victim's phone records from evidence. The defendant argues that the court, C. Taylor, J., erred in admitting the victim's phone records into evidence because during a pretrial proceeding, the court, Fuger, J., had stated, when discussing the defendant's discovery requests for the phone records, that "I will tell you that come trial, if this case goes to trial, that if any of these documents that fit within this description are attempted to be used and you have not . . . had them previously disclosed to you, then if you move to strike them from evidence, that will be granted." The defendant argues that the admission of the victim's phone records violates the law of the case doctrine, and his rights to due process, a fair trial and to present a defense. We are not persuaded.
The motion to suppress sought to suppress the victim's phone records on the basis of the wiretapping statute, and not the statute being argued on appeal, which is the notice provisions of § 54-47aa. Accordingly, the claim regarding § 54-47aa is unpreserved. The defendant requests review pursuant to State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823, the plain error doctrine; Practice Book § 60-5; and review under the exercise of our supervisory powers over the administration of justice. He argues that his rights to due process, a fair trial, and to present a defense were violated. The defendant does not have standing to raise constitutional issues regarding the admission of the phone records of a third party.
Last, the defendant argues that in denying the motion to strike, Judge Taylor violated the law of the case doctrine because Judge Fuger commented that a motion to strike would be granted if the phone records were offered into evidence and the defendant had not had the records disclosed to him. "The law of the case doctrine provides that [w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." (Internal quotation marks omitted.) Signore v. Signore, 110 Conn.App. 126, 133, 954 A.2d 245 (2008). Under the law of the case doctrine, "it is well established that a trial judge need not follow the decisions of another judge made at an earlier stage of the proceedings. . . . A judge may find it appropriate to rely upon a previous ruling. But the law of the case is not an inflexible principle and in a proper situation a judge may modify or depart from an interlocutory ruling of another coordinate magistrate, in whole or in part." (Citations omitted.) State v. Rogers, 199 Conn. 453, 459, 508 A.2d 11 (1986). The law of the case doctrine is not implicated because, first, Judge Taylor's ruling was not necessarily inconsistent with Judge Fuger's comment: the victim's phone records were disclosed to the defendant and the defendant had time to review them. Second, even if the rulings were inconsistent, "a trial judge need not follow the decisions of another judge made at an earlier stage of the proceedings." Id.
The defendant claims that his rights were violated in a number of ways when the same judge who had signed his arrest warrant, which was based in part on the phone records at issue, also denied his motion to suppress the phone records. He claims that this circumstance violated Practice Book § 41-17, canon 3 of the Code of Judicial Conduct, and his rights under the federal constitution
On May 15, 2012, the defendant filed a motion seeking to disqualify the court, Fuger, J., pursuant to Practice Book § 41-17 from presiding over motions relating to the phone records because Judge Fuger had signed his arrest warrant. The court, Fuger, J., denied the motion for disqualification.
The defendant's claims under the federal constitution are unpreserved. The defendant requests review pursuant to State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823. The defendant's claim fails under the second prong of Golding, which requires that the claim be of constitutional magnitude. Id., at 239, 567 A.2d 823. "The United States Supreme Court consistently has held that a judge's failure to disqualify himself or herself will implicate the due process clause only when the right to disqualification arises from actual bias on the part of that judge. . . . [It has stated that] the requirements of [federal] due process are less rigorous than those of the Code of Judicial Conduct, which mandates both impartiality and the appearance of impartiality. . . . [M]ost questions concerning a judge's qualifications to hear a case are not constitutional ones, because the [d]ue [p]rocess [c]lause of the [f]ourteenth [a]mendment establishes a constitutional floor, not a uniform standard. . . . Instead, these questions are, in most cases, answered by common law, statute, or the professional standards of the bench and bar. . . . But the floor established by the [d]ue [p]rocess [c]lause clearly requires a fair trial in a fair tribunal. . . before a judge with no actual bias against the defendant or interest in the outcome of his particular case. . . . [C]ertainly only in the most extreme of cases would disqualification on [the basis of allegations of bias or prejudice] be constitutionally required. . . . [The] due process clause generally [is] interpreted to require only lack of actual bias, not lack of appearance of bias." (Citations omitted; emphasis omitted; internal quotation marks omitted.) State v. Canales, supra, 281 Conn. at 594-95, 916 A.2d 767. The defendant does not allege actual bias, nor is there any suggestion of actual bias in the record. His claim fails under the second prong of Golding because it is not of constitutional magnitude.
The judgment is affirmed.
In this opinion the other judges concurred.
We note that this subsection has been amended since the date of the offense. See, e.g., Public Acts 2014, No. 14-173, § 5. Because that amendment does not affect issues in this appeal, all references to § 53a-223 are to the current revision of the statute.
The defendant did not directly claim that the discretion of the jury to choose what calls to apply to specific counts constituted error. We note that the information charged that the defendant made a number of calls on several different days; the information did not allege specific times of day that the calls were made. The records, on the other hand, identified specific times that the calls were made. In the circumstances of this case, we find no harm in the manner in which the state chose to proceed.
The defendant did not request sanctions pursuant to Practice Book § 405, which provides in relevant part that "[i]f a party fails to comply with disclosure as required under these rules, the opposing party may move the judicial authority for an appropriate order. The judicial authority hearing such a motion may enter such orders and time limitations as it deems appropriate. . . ." The court, however, stated that "if this case goes to trial [and] if any of these documents that fit within this description [of the defendant's and the victim's phone records] are attempted to be used and you have not . . . had them previously disclosed to you, then if you move to strike them from evidence, that will be granted."
Further, we do not conclude that, in the circumstances of this case, the more general due process right to a fair trial was violated. The defendant's own phone records, a copy of which was apparently disclosed to him prior to trial, were not introduced into evidence, and he had the opportunity to review the victim's records during trial. Critically, he did not dispute that a multitude of calls had been made from his phone to the victim's phone.
The defendant further seeks review under our supervisory powers over the administration of justice; see State v. Coward, 292 Conn. 296, 315, 972 A.2d 691 (2009) (reviewing court's supervisory powers are an "extraordinary remedy to be invoked only when circumstances are such that the issue at hand, while not rising to the level of a constitutional violation, is nonetheless of utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole" [emphasis omitted; internal quotation marks omitted]). This is not the type of extraordinary situation that our supervisory powers may address.
The defendant also claims his rights under article first of the Connecticut constitution were violated. The defendant failed to provide a separate analysis of his claim under the Connecticut constitution, and, accordingly, we decline to afford it review. See State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992).
The defendant does not argue on appeal that the records were admitted into evidence in violation of the wiretapping statute.
In this case, not only was the claim not preserved, but the defendant went further and agreed with the court that there was no "issue" if the records were not admitted into evidence; there was no objection at all to Vanacore's testimony about the records.
The defendant further argues that the procedure violated General Statutes § 51-183h and canon 3 of the Code of Judicial Conduct (now rule 2.11). Neither of these claims are preserved for our review. See also Francis v. Commissioner of Correction, 142 Conn.App. 530, 545, 66 A.3d 501, cert. denied, 310 Conn. 921, 77 A.3d 141 (2013).
