The defendant's mother also testified that she did not sign the form. Furthermore, the trial court, in an oral ruling on the defendant's motion to suppress evidence, distinguished the facts of the present case from those in State v. Jones, 193 Conn. 70, 475 A.2d 1087 (1984), wherein both parents of the defendant signed a consent to search form, noting that "it is clear to the court that this is not an issue as decided in [ Jones], one of acquiescence to . . . a claim of lawful authority. . . . It is clear that at least one of the parties [in the present case], one of the parents declined to consent to [the] search."
The court rejected the defendant's claim, concluding that the defendant's father's consent to search was knowing and voluntary, and, therefore, constitutionally valid. During its brief explanation of its ruling on that issue, the court referred to State v. Jones, 193 Conn. 70, 475 A.2d 1087 (1984), a case upon which the defendant had relied and in which we had explained that the mere acquiescence to a claim of lawful authority by the police is not enough to establish valid consent. Id., 79.
In view of the evidence and the focus of the arguments of counsel on this issue in the trial court and on appeal, however, it is implicit that the trial court found the defendant was not in custody, at least until after he had made his initial unrecorded confession to Sweeney. State v. Jones, 193 Conn. 70, 79, 475 A.2d 1087 (1984); see also State v. McCarthy, 197 Conn. 247, 258, 496 A.2d 513 (1985). A person, even if a suspect in a crime, is not in custody every time he is asked questions at a police station.
We disagree.State v. Jones, 193 Conn. 70, 475 A.2d 1087 (1984), is instructive on this claim. In Jones, the indictment stated that under the felony murder statute “the defendant did commit or attempt to commit a robbery and in the course of and in furtherance of such crime or flight therefrom he, or another participant, caused the death of a person....” (Emphasis in original; internal quotation marks omitted.)
See also California v. Ciraolo, 476 U.S. 207, 211 (1986); Rawlings v. Kentucky, 448 U.S. 98, 104 (1980). Where the state claims there was consent to a search, it must affirmatively establish by a preponderance of the evidence that the consent was in fact freely and voluntarily given. State v. Jones, 193 Conn. 70, 79 (1984); State v. Van Der Werff, 8 Conn. App. 330, 341 (1985). 2.
In none of those cases, however, did the court find waiver under reasoning consistent with his definition because there was no indication in any of those cases that defense counsel was aware that the instruction was defective when counsel agreed to the instruction later challenged on appeal, as Justice Palmer's definition requires. See State v. Hampton , 293 Conn. 435, 447, 449–50, 978 A.2d 1089 (2009) (defense counsel waived instructional claim on ground that he had accepted instruction that was given as “ ‘in order,’ ” and thus correct); State v. Whitford , 260 Conn. 610, 633, 799 A.2d 1034 (2002) (defense counsel waived instructional claim on ground that counsel, “[b]y agreeing to the proposed instruction, and by failing to object to the supplemental charge as given ... effectively conceded that it was sufficient to cure any previous impropriety”); State v. Jones , 193 Conn. 70, 88–89, 475 A.2d 1087 (1984) (instructional claim was waived when counsel “accepted ... as correct” jury instruction later challenged on appeal); State v. Fuller , 158 Conn.App. 378, 389–90, 119 A.3d 589 (2015) (defense counsel waived instructional claim under Kitchens because counsel indicated multiple times that there were “no issues with the charge”). In relying on the foregoing cases, Justice Palmer fails to distinguish between a proposed instruction being raised at trial and defense counsel agreeing to it, on the one hand, and defense counsel knowing that the instruction is incorrect and agreeing to it, on the other.
The trial court has broad discretionary power to determine whether an attorney should be disqualified for an alleged . . . conflict of interest. State v. Jones, 180 Conn. 443, 448, 429 A.2d 936 (1980) [aff'd, 193 Conn. 70, 475 A.2d 1087 (1984)]. . . .
In the absence of a contrary showing by the defendants, we presume that the trial court's statement that it had overruled the defendants' exceptions and objections before rendering judgment was accurate. State v. Jones, 193 Conn. 70, 89 n. 13, 475 A.2d 1087 (1984). Public officers acting in their official capacity are presumed to have acted legally and properly.
While we agree with the defendants that the court's initial instruction to the jury may have improperly enlarged the charge by including the uncharged statutory alternatives of restraint and abduction, we must look to the entire instruction and the circumstances surrounding the claimed error. See State v. Jones, 193 Conn. 70, 90, 475 A.2d 1087 (1984); State v. Vasquez, 182 Conn. 242, 246, 438 A.2d 424 (1980). The jury was correctly reinstructed prior to any deliberations and the revised instruction explicitly and repeatedly warned the jury not to consider any uncharged alternative definitions.
The state correctly notes that the defendant has briefed this issue improperly by failing to cite the specific evidence he finds objectionable. See Practice Book 3060F (c); see also State v. Jones, 193 Conn. 70, 74 n. 2, 475 A.2d 1087 (1984). We have decided, in the particular circumstances of this case, to consider this claim to the extent that we have done so only because the defendant has raised it pro se.