author: SULLIVAN, J. LAVERY, J.,

text:
    STATE OF CONNECTICUT v. HOA VAN NGUYEN
    (AC 17107)
    Lavery, Landau and Sullivan, Js.

      Argued November 10, 1998
    officially released March 2, 1999

      James E. Swaine, for the appellant (defendant).

      Ellen A. Jawitz, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Edward R. Narus, senior assistant state’s attorney, for the appellee (state).
   Opinion

SULLIVAN, J.

The defendant, Hoa Van Nguyen, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), and risk of injury to a child in violation of General Statutes § 53-21. The defendant claims that the trial court improperly (1) found a violation of its sequestration order and consequently excluded a defense witness, (2) denied the defendant’s motion for an independent medical examination of the victim and (3) failed to instruct the jury on the issue of the credibility of a child witness as requested by the defense. We affirm the judgment of the trial court.

A jury reasonably could have found the following facts. The defendant, his wife and the victim’s parents jointly purchased and lived together in a single-family home in West Hartford. In 1994, the five year old victim, Q, and her brother went to play in the basement of the house. The defendant was already in the basement and asked the victim’s brother to go back upstairs and to lock the basement door behind him.

The defendant then removed Q’s shorts and underpants and unfastened his trousers. He forced Q to stimulate his penis manually and then inserted his penis into her vagina. Afterwards, the defendant told Q that he would buy her a toy if she kept secret what had happened. Q went upstairs and told her mother what had occurred.

The West Hartford police arrested the defendant and he was subsequently convicted.

I

The defendant first claims that the trial court improperly determined that the defendant’s attorney had violated the court’s sequestration order. We disagree.

The following additional facts are necessary to our determination. The trial court granted the state’s motion for a sequestration order pursuant to Practice Book § 876, now § 42-36. During the defendant’s case-in-chief, the defendant’s wife testified that Q’s parents were physically abusive when disciplining Q and her brother, that they had fabricated the rape charge to gain control of the jointly owned house and that Q had cooperated with her parents out of fear of physical punishment. Immediately following that testimony, the prosecutor overheard part of a closed door discussion in a room outside of the courtroom between the defendant’s attorney, the defendant’s wife and George Thibo-deau, the next defense witness and a friend of the defendant. The prosecutor immediately brought this to the attention of the trial court, claiming that the discussion concerned the testimony just given by the defendant’s wife and that it violated the court’s sequestration order. The defendant’s attorney stated: “I may have asked [the defendant’s wife] a question about what she said when she testified, yes. She was upset, and she was inquiring about [whether she had said] the right thing, that sort of thing, but, you know, I responded to that mainly because my thinking was that, well, this witness has testified. You know, it’s not really an issue what she says in front of anybody not really thinking about Thibodeau, who was in the comer basically reading the paper.” On the basis of these statements, the court concluded that there had been a violation of its order and barred Thibodeau’s testimony. The next day the defendant moved the trial court to reconsider its decision. The court declined.

A

The defendant first claims that the trial court improperly found a violation of the sequestration order without first conducting an evidentiary hearing. We do not agree.

“An inquiry into the facts and circumstances of each case is necessary to ascertain whether the purpose of a sequestration order has been thwarted.” State v. Scott, 16 Conn. App. 172, 182, 547 A.2d 77, cert. denied, 209 Conn. 821, 551 A.2d 758 (1988). That inquiry, however, need not take the form of a formalized evidentiary hearing. See State v. Brown, 235 Conn. 502, 526, 668 A.2d 1288 (1995) (en banc) (trial court must conduct some type of inquiry into allegations of jury misconduct, but form and scope rest within court’s sound discretion); State v. Haye, 214 Conn. 476, 482-83, 572 A.2d 974 (1990) (representations of counsel may suffice to support good cause finding for continuance of statutory probable cause hearing). There are instances “in which a trial court will rightfully be persuaded, solely on the basis of the allegations before it and the preliminary inquiry of counsel on the record.” State v. Brown, supra, 528. “To impose a requirement of a factual showing in every case to support representations of counsel concerning such matters would impugn the veracity of counsel and impose a staggering burden of time and effort on our already overburdened court system. Evi-dentiary support of counsel’s representations may be found necessary by the court only under certain contested circumstances; see State v. Aillon, 202 Conn. 385, 521 A.2d 555 (1987); or where otherwise required by statute, our rules of practice, or the rules of evidence.” State v. Haye, supra, 482-83.

In this case, defense counsel represented to the court that he and the defendant’s wife had discussed elements of her testimony in Thibodeau’s presence. If defense counsel’s representations had been at odds with the state’s assertions or merely self-serving, we would agree that a more searching inquiry would be required but that is not the case here. The court was justified in relying upon the statements of the defense attorney in making its decision.

Indeed, defense counsel’s statement that “[he] may have asked [the defendant’s wife] a question about what she said when she testified [while] Thibodeau . . . was in the comer” constitutes a judicial admission. “Judicial admissions are voluntary and knowing concessions of fact by a party or a party’s attorney occurring during judicial proceedings.” Jones v. Forst, 41 Conn. App. 341, 346, 675 A.2d 922 (1996). A judicial admission “is, in truth, a substitute for evidence, in that it does away with the need for evidence.” (Internal quotation marks omitted.) State v. Jones, 50 Conn. App. 338, 352, 718 A.2d 470 (1998). Furthermore, defense counsel’s later statements in no way contradict his admissions that he, the defendant’s wife and Thibodeau were present in the anteroom and that he and the defendant’s wife discussed the testimony she had just given. The trial court properly relied on his judicial admission.

Moreover, the defendant failed to request an evidentiary hearing at trial. He cannot demand a full evidentiary hearing for the first time on appeal. See State v. Brown, supra, 235 Conn. 530; Spicer v. Spicer, 33 Conn. App. 152, 161, 634 A.2d 902 (1993), cert. denied, 228 Conn. 920, 636 A.2d 850 (1994).

We conclude that the trial court acted properly. Even assuming that the trial court had made an improper finding, however, we conclude that Thibodeau’s testimony was cumulative, as we will discuss in part I C of this opinion.

B

The defendant next argues that the trial court could not find a violation of its sequestration order because any communication that did take place occurred outside of the courtroom. We find no merit to this argument.

“The primary purpose of a sequestration order is to ensure that the defendant receives a fair trial by preventing witnesses from shaping their testimony to corroborate falsely the testimony of others. State v. Pikul, 150 Conn. 195, 200, 187 A.2d 442 (1962). State v. Crumble, 24 Conn. App. 57, 61, 585 A.2d 1245, cert. denied, 218 Conn. 902, 588 A.2d 1077 (1991).” (Internal quotation marks omitted.) State v. Sherman, 38 Conn. App. 371, 413-14, 662 A.2d 767, cert. denied, 235 Conn. 905, 665 A.2d 905 (1995). Although the language of Practice Book § 876 may seem merely to bar “a sequestered witness from being in the courtroom when he is not testifying”; (internal quotation marks omitted) State v. Falby, 187 Conn. 6, 27, 444 A.2d 213 (1982); we do not follow so rigid an interpretation. Indeed, such an inteipretation “would vitiate any sequestration order by exalting form above substance.” Id.

Here, defense counsel admitted having discussed the testimony of the defendant’s wife in Thibodeau’s presence. The defendant had joined the state’s motion for a sequestration order pursuant to Practice Book § 876, now § 42-36. Moreover, the defendant was put on notice as to the scope of the order by the court’s previous questions to Elizabeth Foran, Q’s guardian ad litem. In fact, when the issue of Foran’s presence in the courtroom arose, the defendant urged a broad construction of the sequestration order and indicated his understanding that the order was not limited to barring prospective witnesses from the courtroom. Therefore, we conclude that the court had reasonable grounds for finding a violation of its order.

C

Finally, the defendant argues that, even if the court properly found a violation of its order, the sanction imposed by the court violated his constitutional right to present a defense. Alternatively, he argues that, if the exclusion of Thibodeau’s testimony is not of constitutional magnitude, the trial court nonetheless abused its discretion. We disagree with both of the defendant’s assertions.

“The remedy for such a violation [of a sequestration order] rests in the trial court’s discretion, guided by a primary concern for the fairness of the trial, not the culpability of the [offender].” (Internal quotation marks omitted.) State v. Sherman, supra, 38 Conn. App. 414. “We acknowledge, however, that, under particular circumstances, the unjustified exclusion of a witness’ testimony can amount to a deprivation of the defendant’s right to present a defense. See, e.g., Braswell v. Wainwright, 463 F.2d 1148, 1155-56 (5th Cir. 1972) (holding that trial court’s discretionary exclusion of sole corroborating witness’ testimony denied defendant fundamental constitutional right). If an impropriety is of constitutional proportions, the state bears the burden of proving that the error was harmless beyond a reasonable doubt. State v. Colton, 227 Conn. 231, 253-54, 630 A.2d 577 (1993) [on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995)].” State v. Cavell, 235 Conn. 711, 720, 670 A.2d 261 (1996).

The exclusion of Thibodeau’s testimony did not prevent the defendant from effectively presenting his defense. Thibodeau would have testified to the physical punishments administered to Q and her brother by their parents, a fact already testified to by the defendant’s wife, by Q and by her brother. The defendant was still able to maintain his theory that Q’s parents concocted the sexual assault allegations and Q acquiesced out of fear of physical retribution. In fact, the defendant argued precisely that in his closing argument. We are unpersuaded that the trial court’s decision violated any of the defendant’s constitutional protections.

“The standard for determining whether a nonconsti-tutional error is harmless is that [t]he defendant must show that it is more probable than not that the erroneous action of the court affected the result.” (Internal quotation marks omitted.) State v. Cavell, supra, 235 Conn. 721-22. Even assuming arguendo that a noncon-stitutional error exists, we are not convinced that the defendant was harmed.

The defendant was in no way foreclosed from arguing his theory that Q acquiesced in her parents’ scheme out of fear of physical punishment. The defendant argues that because the witness was his wife, her testimony about the physical punishments suffered by Q and her brother would have been more credible to the jury if corroborated by someone outside of the family, such as Thibodeau. Although Thibodeau was barred from corroborating the testimony of the defendant’s wife about the physical punishments suffered by Q, that testimony was corroborated by both Q and her brother. The defendant could not find witnesses less partial to him than the victim and her brother.

We conclude that the trial court properly found a violation of its sequestration order and fashioned an appropriate remedy.

II

The defendant next claims that the trial court abused its discretion in denying the defendant’s motion for a physical examination of the victim. We disagree.

The following additional facts are necessary to our determination of this issue. An initial physical examination by Angela Quattrocelli, a pediatric resident at Hartford Hospital, was inconclusive as to sexual assault. A referral examination conducted the day after Quattro-celli’s examination by Debra Brown, director of the child abuse program at Hartford Hospital, concluded that there was a tear of the hymen at the seven o’clock position. An examination five months later by Frederick Rau, a pediatric gynecologist, concluded that there was a tear of the hymen between the five and six o’clock positions. At trial, Rau discounted the discrepancy with Brown’s finding, noting that both findings are within the same range and not medically inconsistent for the gynecological examination of a child. The defendant maintains that a further examination would have shown the existence of a second tear of the victim’s hymen, which had occurred at a time when the defendant was not in contact with her.

We review the denial of a motion for a physical examination of a sexual assault victim under an abuse of discretion standard. State v. Esposito, 122 Conn. 604, 607-608, 191 A. 341 (1937). “In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) State v. Hoth, 50 Conn. App. 77, 87-88, 718 A.2d 28, cert. denied, 247 Conn. 922, 722 A.2d 811 (1998).

The defendant must “establish a nexus between the proffered evidence . . . and a material fact or issue involved in the case.” State v. Hickey, 23 Conn. App. 712, 714, 584 A.2d 473, cert. denied, 217 Conn. 809, 585 A.2d 1233, cert. denied, 501 U.S. 1252, 111 S. Ct. 2894, 115 L. Ed. 2d 1058 (1991). This court has never suggested, however, that that is the only criterion for determining whether an order for a physical examination will issue. In a majority of jurisdictions, courts balance the well-being of the victim against the need of the defendant before ordering an independent physical examination. See, e.g., Lanton v. State, 456 So. 2d 873, 874 (Ala. Crim. App. 1984) (physical examination of child victim should be ordered only in situations of “ ‘extreme necessity’ ”), cert. denied, 471 U.S 1095, 105 S. Ct. 2314, 85 L. Ed. 2d 834 (1985); State v. Garrett, 384 N.W.2d 617, 619 (Minn. App. 1986) (defendant must show “compelling need”); State v. D.R.H., 127 N.J. 249, 265, 604 A.2d 89 (1992) (defendant’s need must “clearly outweigh” potential harm to victim); State v. Ramos, 553 A.2d 1059, 1062 (R.1.1989) (trial court has discretion to order physical exam only in “most compelling of circumstances”).

The trial court in this case acted neither unreasonably nor arbitrarily in exercising its judgment. In cases involving child victims of sexual assault, courts face the difficult task of balancing the protection of the victim against the need of the defendant to present a defense. The defendant was able to cross-examine the physicians effectively. The physicians found only one tear of the hymen, and the only discrepancy was the position of the tear. Rau explained why his report was not medically inconsistent with Brown’s findings and noted that children tend to move during gynecological examinations, so that seven o’clock and five or six o’clock are essentially in the same range.

On the basis of our reading of the record, we cannot find that the trial court abused its discretion in this matter.

Ill

The defendant finally claims that the trial court abused its discretion by failing to instruct the jury on the credibility of child witnesses. The defendant asserts that such a charge was necessary because of the age of the witness at the time of the incident and at the time of the trial and because of the lack of corroborating evidence. We disagree.

“The prevailing view . . . is that a trial judge retains discretion to determine whether the jury should receive a special instruction with respect to the credibility of a young witness, and, if so, the nature of that instruction.” (Internal quotation marks omitted.) State v. Osborn, 41 Conn. App. 287, 290, 676 A.2d 399 (1996).

We are not persuaded that the trial court’s refusal to give the requested charge was unreasonable or an abuse of discretion. Contrary to the defendant’s suggestion, the witness’ age at the time of the incident and the trial does not undermine the reasonableness of the trial court’s decision. Rather, it is precisely “the difficulty in fixing an age when such an instruction would be necessary” that requires the discretion of the court. See State v. Angell, 237 Conn. 321, 330, 677 A.2d 912 (1996); State v. James, 211 Conn. 555, 568, 560 A.2d 426 (1989).

During questioning by the court, Q demonstrated an understanding of the importance of being truthful and an ability to recall events several years in the past. On direct examination, she was cogent and coherent. We find nothing to suggest that the trial court’s refusal to charge on child credibility was unreasonable.

The defendant also alleges a lack of corroborative evidence, which required a special charge on the credibility of a child witness in this case. The presence or absence of corroborative evidence is not essential to a trial court’s decision on whether to give such a charge. Our Supreme Court has indicated that corroborative evidence is not required when a court does not give a charge on the credibility of a child witness. State v. Angell, supra, 237 Conn. 331 n.11.

Because the trial court acted well within its discretion, we reject the defendant’s claim.

The judgment is affirmed.

In this opinion LANDAU, J., concurred.

LAVERY, J.,

concurring in part and dissenting in part. Although I agree with parts II and III of the majority opinion, I respectfully dissent from part I.

I

The majority concludes that it was unnecessary for the trial court to conduct an evidentiary hearing before it determined that defense counsel had violated the sequestration order. I respectfully disagree.

Although this court has stated that a trial court must conduct an inquiry into the facts and circumstances of each case to ascertain whether a sequestration order has been violated; State v. Crumble, 24 Conn. App. 57, 61, 585 A.2d 1245, cert. denied, 218 Conn. 902, 588 A.2d 1077 (1991); State v. Scott, 16 Conn. App. 172, 182, 547 A.2d 77, cert. denied, 209 Conn. 821, 551 A.2d 758 (1988); neither this court nor our Supreme Court has provided trial courts with additional guidance concerning the form and scope of that inquiry. In resolving this issue, I find instructive our Supreme Court’s decision in State v. Brown, 235 Conn. 502, 526-32, 668 A.2d 1288 (1995) (en banc), in which the court explained the form of inquiry that a trial court should conduct when faced with an allegation of jury misconduct.

In Brown, our Supreme Court held that when faced with an allegation of jury misconduct, a trial court must conduct a preliminary inquiry to determine whether the allegations require further investigation or some other response. Id., 525-26. The “form and scope may vary from a preliminary inquiry of counsel, at one end of the spectrum, to a full evidentiary hearing at the other end of the spectrum, and, of course, all points in between. Whether a preliminary inquiry of counsel, or some other limited form of proceeding, will lead to further, more extensive, proceedings will depend on what is disclosed during the initial limited proceedings and on the exercise of the trial court’s sound discretion with respect thereto.” Id., 526.

In this case, the trial court conducted a preliminary inquiry of counsel. The majority concludes that it was unnecessary for the trial court to conduct an evidentiary hearing because the representations of counsel were sufficient to support the trial court’s finding that defense counsel had violated the sequestration order. In many instances, the representations of counsel, without more, will constitute a sufficient basis for a trial court’s decision. “To impose a requirement of a factual showing in every case to support representations of counsel concerning such matters would impugn the veracity of counsel and impose a staggering burden of time and effort on our already overburdened court system.” State v. Haye, 214 Conn. 476, 482-83, 572 A.2d 974 (1990).

Although a trial court need not conduct an evidentiary hearing whenever it is confronted with a potential violation of a sequestration order, in the present case, the trial court should have conducted a hearing because defense counsel specifically challenged the prosecutor’s unsupported allegation that there had been such a violation. “Evidentiary support of counsel’s representations may be found necessary by the court . . . under certain contested circumstances-, see State v. Aillon, 202 Conn. 385, 521 A.2d 555 (1987) . . . .” (Emphasis added.) State v. Haye, supra, 214 Conn. 483.

In Haye, the defendant claimed that an evidentiary hearing was necessary because the representations of counsel, absent the presentation of evidence, could not support a finding of good cause to continue a probable cause hearing. Id., 482. Although our Supreme Court denied the defendant’s claim, it observed that it would have decided otherwise if, at trial, the defendant had specifically challenged the accuracy of the state’s representations. Id. Additionally, the court observed: “In Ail-Ion, we [determined] that unsupported representations of defense counsel [were] insufficient to establish either the unavailability of an expert witness or the defendant’s need for a continuance to acquire a substitute witness. We did not say that representations of counsel can never be sufficient, but held that under the circumstances presented in Aillon, the representations simply were inadequate. In that case the unsupported representations of counsel were insufficient because the state at trial challenged those representations and put the defendant to his burden of proof.” (Emphasis in original.) Id., 482 n.7.

In the present case, the record demonstrates that defense counsel specifically contested the prosecutor’s unsupported representation that there had been a violation of the sequestration order. On January 23, 1997, the prosecutor claimed that defense counsel had violated the sequestration order by questioning the defendant’s wife in George Thibodeau’s presence about why she had failed to offer certain testimony and then suggesting that Thibodeau could testify as to these matters. Although defense counsel admitted that he “may have asked [the defendant’s wife] a question about what she said when she testified,” he claimed, “[Thibodeau] was in no way tainted . . . any comment that was made to [the defendant’s wife] where I may have questioned something that she said was inconsequential and in no way goes to the substance of what we are talking about here which has to do with [Thibodeau’s] relationship with the family and what he observed of the conduct of the parents of the alleged victim.”

After the trial court concluded that there had been a violation of the order, defense counsel responded: “I want to be clear about one thing, and that is that the substance of the testimony [of the defendant’s wife has] not gone in front of Mr. Thibodeau . . . and by no stretch of the imagination am I conceding or saying in any way here that I discussed in any important way what her testimony was to Mr. Thibodeau and how he should respond to that.” Additionally, defense counsel questioned the adequacy of the basis for the trial court’s determination. On January 24, 1997, defense counsel renewed his challenge.

Defense counsel contested the prosecutor’s representation that there had been a violation of the sequestration order. On the basis of our Supreme Court’s reasoning in Haye and Aillon, which I find persuasive in this context, I would hold that the trial court’s failure to conduct an evidentiary hearing constituted an abuse of discretion.

II

The majority next concludes that the scope of the sequestration order was not limited to communications that took place inside the courtroom. I respectfully disagree.

Although a sequestration order may impose a broader prohibition than that provided by Practice Book § 42-36, formerly § 876; see State v. Crumble, supra, 24 Conn. App. 61; a sequestration order granted pursuant to § 42-36 does no more than prohibit a sequestered witness from being in the courtroom when he is not testifying. See Practice Book § 42-36; see also State v. Williams, 169 Conn. 322, 331, 363 A.2d 72 (1975) (interpreting text of General Statutes § 54-85a, which is the same as Practice Book § 42-36). The state moved for a sequestration order pursuant to § 876 and, therefore, in its initial form, the sequestration order prohibited witnesses only from being in the courtroom when they were not testifying.

Later in the proceeding, however, the trial court instructed Elizabeth Foran, Q’s guardian ad litem, that she could not discuss what she had observed in the courtroom with any of the state’s witnesses. If the “enforcement [of sequestration orders] is to work justice and not injustice, care must be taken by the trial courts and by counsel to insure that those orders are plainly announced and that their effect is made clear to all witnesses.” Jury v. Commonwealth, 10 Va. App. 718, 722, 395 S.E.2d 213 (1990). It is not clear in the record whether the trial court’s informal modification of the sequestration order applied only to Foran or to all prospective witnesses or to every witness, including those who had already testified. I would resolve this ambiguity in favor of the defendant and limit the scope of the sequestration order to the explicit terms of § 876.

Ill

The majority also concludes that the trial court’s exclusion of Thibodeau’s testimony did not violate the defendant’s constitutional right to present a defense. I respectfully disagree.

“ ‘The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts .... Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.’ Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967).” State v. McPhail, 213 Conn. 161, 178, 567 A.2d 812 (1989). “It is a right which derives not only from the general fairness requirements of the due process clause of the fourteenth amendment but also, and more directly, from the compulsory process clause of the sixth amendment.” Rosario v. Kuhlman, 839 F.2d 918, 924 (2d Cir. 1988); see State v. Carter, 228 Conn. 412, 422, 636 A.2d 821 (1994).

“When defense evidence is excluded, such evidence may give rise to a claim of denial of the right to present a defense. Chambers v. Mississippi, 410 U.S. 284, 289-90, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973).” State v. Bova, 240 Conn. 210, 236, 690 A.2d 1370 (1997); State v. Cavell, 235 Conn. 711, 720, 670 A.2d 261 (1996). “Whether a trial court’s erroneous restriction of a defendant’s or defense witness’s testimony in a criminal trial deprives a defendant of his due process right to present a defense is a question that must be resolved on a case by case basis.” (Internal quotation marks omitted.) State v. Barletta, 238 Conn. 313, 322, 680 A.2d 1284 (1996).

In Holder v. United States, 150 U.S. 91, 92, 14 S. Ct. 10, 37 L. Ed. 1010 (1893), the Supreme Court held that a defense witness’ violation of a sequestration order, without more, did not warrant his exclusion. “The exclusion of a witness is a strongly disfavored sanction because of the severe consequences it holds for the defendant. In particular, the [United States] Supreme Court has long recognized that [t]he right to offer the testimony of witnesses ... is in plain terms the right to present a defense .... Because of this constitutionally based right of the defendant to present evidence in his favor, disqualification of defense witnesses is too harsh a penalty to impose in the absence of misbehavior by the defendant or his counsel.” (Citation omitted; internal quotations marks omitted.) United States v. Hobbs, 31 F.3d 918, 922 (9th Cir. 1994). Accordingly, the defendant’s claim should be reviewed in light of the federal judiciary’s reluctance to impose this harsh sanction.

At trial, the defendant claimed that a feud had developed between the victim’s parents and him over the use and ownership of the home, which the defendant and his wife shared with the victim and her family. Additionally, he claimed that the victim’s parents concocted the sexual assault allegations and Q acquiesced out of fear of physical retribution by her parents. The defendant’s wife testified that her husband’s relationship with the victim’s parents had deteriorated over a dispute concerning the use and ownership of the home. She also testified about the severe discipline administered to Q and her brother by their parents.

Defense counsel represented that Thibodeau would have corroborated the testimony of the defendant’s wife concerning the defendant’s relationship with the victim’s parents and the disciplinary practices of the victim’s parents. Additional testimony concerning the same subject matter is not per se cumulative or unimportant. See State v. Grant, 221 Conn. 93, 106, 602 A.2d 581 (1992) (testimony of several witnesses in support of alibi defense cannot be characterized as unimportant or cumulative); State v. Ruiz, 202 Conn. 316, 325, 521 A.2d 1025 (1987) (testimony of additional witness on significant disputed issue cannot be characterized as cumulative); see also Kobos v. Everts, 768 P.2d 534, 545-46 (Wyo. 1989); 2 D. Louisell & C. Mueller, Federal Evidence (1985) § 128, pp. 74—75; 75 Am. Jur. 2d, Trial § 340, pp. 547-48. “Not all evidence which is entirely duplicative is therefore cumulative and excludable. Evidence may vary in degree of persuasiveness, and when an item of proof which is offered on a point is very different in character or persuasive impact from an item of proof previously received, the former cannot be considered merely ‘cumulative’ of the latter. . . . In short, the discretion of the trial judge to exclude cumulative evidence must be exercised in a discriminating fashion, and with wisdom, particularly where the evidence in question goes to issues of central importance in the case.” Kobos v. Everts, supra, 546, quoting 2 D. Louisell & C. Mueller, supra, pp. 74-75.

The importance of Thibodeau’s testimony cannot be underestimated. Thibodeau’s corroborative testimony was important to the defendant’s case because the jury may have accorded less weight to the testimony of the defendant’s wife because of her relationship to the defendant. Additionally, although Q and her brother testified about their parents’ disciplinary practices, neither testified that their parents were involved in a dispute with the defendant over the home. As a result, the trial court’s sanction deprived the defendant of an opportunity to offer important corroborative testimony in support of his claim that the victim’s sexual assault allegations ultimately stemmed from a dispute between the defendant and the victim’s parents concerning the use and ownership of the home.

“If the error is of constitutional magnitude, then the burden is on the state to prove that this error was harmless beyond a reasonable doubt.” State v. Flanders, 214 Conn. 493, 500, 572 A.2d 983, cert. denied, 498 U.S. 901, 111 S. Ct. 260, 112 L. Ed. 2d 217 (1990). In light of the importance to the defendant of Thibodeau’s testimony, I do not believe the state has met its burden of showing harmlessness beyond a reasonable doubt. The trial court’s exclusion of Thibodeau’s testimony impaired the defendant’s ability to present a proper defense.

Even if there was a violation of the sequestration order, the foregoing conclusion is particularly true in light of the numerous lesser sanctions that the trial court could have utilized to remedy this violation. For example, the trial court could have allowed Thibodeau to testify and permitted the state to cross-examine him concerning the extent to which he was influenced by defense counsel’s discussion of the testimony of the defendant’s wife. See State v. Falby, 187 Conn. 6, 26-27, 444 A.2d 213 (1982); United States v. Blasco, 702 F.2d 1315, 1327 (11th Cir.), cert. denied sub nom. Galvan v. United States, 464 U.S. 914, 104 S. Ct. 275, 78 L. Ed. 2d 256 (1983). Additionally, the trial court could have instructed the jury that, in weighing Thibodeau’s testimony, it should consider that defense counsel had discussed the testimony of the defendant’s wife in Thibodeau’s presence. See State v. Falby, supra, 26-27; Dutton v. Brown, 812 F.2d 593, 601 (10th Cir.), cert. denied, 484 U.S. 836, 108 S. Ct. 116, 98 L. Ed. 2d 74 (1987). Any of these alternatives was preferable to exclusion of the defendant’s witness.

For these reasons, I respectfully dissent and would reverse the judgment and remand the case to the trial court for a new trial.

       Practice Book § 876, now § 42-36, provides: “The judicial authority upon motion of the prosecuting authority or of the defendant shall cause any witness to be sequestered during the hearing on any issue or motion or during any part of the trial in which such witness is not testifying.”

       Although the dissent cites additional statements in the transcript, those statements taken as a whole do not contradict the admission made by defense counsel.

       “[Defense Counsel]: My concern, Your Honor, is also with the mother in this case. My understanding is that this individual here in the courtroom [Ms. Foran] has also posed as a guardian or consulted with her in some way. I know that she was in the courtroom when she testified last, and I would ask that she be instructed that her conversations with the mother of the alleged victim should also be—should not occur.
      “Ms. Foran: Your Honor, I’m not discussing this case with any of the family members, what happens in the courtroom.
      “The Court: Okay. All right, and you’re not going to discuss it with anybody who is a future witness.
      “Ms. Foran: That’s right, Your Honor.”

       The defendant requested the following charge: “When considering the credibility of [a] child witness, you should remember that ‘in certain respects a young child is more apt to err than an older person; he or she is apt to be more amenable to any influence or suggestion which may be made to them by older persons; their imagination also often misleads them; its products may take on all the semblances of actual fact and they will relate them as such; the sanctity of the oath and the solemnity of legal proceedings may appeal to them less than to an adult.’ ”

       Q was five years old at the time of the incident and eight years old at the time of the trial.

       In State v. James, supra, 211 Conn. 569 n.7, the court cites one study as finding: “[I]f prompted, children as young as 3 years of age can recall past events quite well, although they will have difficulty under 10 years of age dating the events or attributing the appropriate motivation and intention to other people. Despite conventional wisdom, there is no evidence that children are more prone to lie than adults, and no evidence that they are more prone to confabulate or fabricate complex allegations.” (Internal quotation marks omitted.)

       In a colloquy with the trial court, defense counsel stated: “So, you know . . . what you have here, Your Honor, is a statement being made [by the prosecutor], I feel, and a decision [by the court] based solely upon the way— you have [the prosecutor] who says that he did not hear 99 percent of what occurred in that room, and I am saying that the substance of [the] testimony [of the defendant’s wife] was not discussed in front of . . . Thibodeau.”

       Several federal circuits have expressed reluctance to impose this harsh sanction when confronted with a violation of a sequestration order. See United States v. Cropp, 127 F.3d 354, 363 (4th Cir. 1997), cert. denied, 522 U.S. 1098, 118 S. Ct. 898, 139 L. Ed. 2d 883 (1998) (“ [because exclusion of a defense witness impinges upon the right to present a defense, we are quite hesitant to endorse the use of such an extreme remedy”); United States v. Rugiero, 20 F.3d 1387, 1394 (6th Cir.), cert. denied, 513 U.S. 878, 115 S. Ct. 208, 130 L. Ed. 2d 137 (1994) (“ ‘[t]he controlling principle in this Circuit is that violation of an order directing that witnesses be separated does not automatically bar a witness’ testimony’ ”); Government of the Virgin Islands v. Edinborough, 625 F.2d 472, 474 (3d Cir. 1980) (“even when there has been a violation of a sequestration order, the witness is not necessarily disqualified”); United States v. Bobo, 586 F.2d 355, 366 (5th Cir. 1978), cert. denied sub nom. Rowan v. United States, 440 U.S. 976, 99 S. Ct. 1546, 59 L. Ed. 2d 795 (1979) (witness’ failure to comply with sequestration order would not render his testimony inadmissible absent showing of prejudice); United States v. Smith, 578 F.2d 1227, 1235 (8th Cir. 1978) (witness usually disqualified only under particular or special circumstances).

       “The Court: Let me ask you something. What was . . . the nature of Mr. Thibodeau’s testimony?”
      * ** *
      “[Defense Counsel]: Oh, what is he going to testily to? Basically the only issue that I can see is the issue of disciplining the children, whether the parents—and what the relationship of the parents was to the child and this couple’s relationship to them. ...”


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    IN RE PASCACIO R. ET AL.

    (AC 17676)
    Lavery, Schaller and Daly, Js.
    Argued September 29, 1998
    officially released March 2, 1999

      Richard V. Banks, for the appellant (respondent mother).

      Jane R. Rosenberg, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Douglas J. Lewis, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

SCHALLER, J.

The respondent mother appeals from the judgments of the trial court terminating her parental rights to four of her children. The trial court determined by clear and convincing evidence that the children had been adjudicated neglected and that the respondent had failed to achieve the requisite degree of personal rehabilitation required by General Statutes (Rev. to 1995) § 17a~112. On appeal, the respondent claims that the trial court improperly (1) determined that there was sufficient evidence to support the termination notwithstanding the respondent’s testimony that she had stopped using drugs and embraced religion and (2) considered the respondent’s conduct in court, including her failure to secure child care for her infant, as further indication of her lack of appropriate adult judgment. We affirm the judgments of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. The respondent is thirty-three years old and of borderline to lower average intelligence. She had nine children. The respondent’s parental rights to her four oldest children have been terminated. Of the respondent’s remaining five children, four are the subjects of this appeal. All four children have documented behavioral problems and learning difficulties that have been diagnosed by court-appointed clinical psychologists. The respondent has a history of drug abuse, and she has admitted using cocaine while pregnant. The respondent conceded at trial that the four children were properly removed from her custody on September 7, 1993, pursuant to a petition filed by the commissioner of children and families. On September 13, 1993, the four children were adjudicated neglected and were placed in the care of the department of children and families. The department subsequently placed the four children in licensed foster homes. In the petition for the termination of parental rights filed on June 13, 1995, the commissioner alleged that the respondent had failed to achieve personal rehabilitation pursuant to § 17a-112 (b) (2). On July 29, 1997, the trial court determined by clear and convincing evidence that the respondent’s four children “have previously been adjudicated neglected” and that the respondent “failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time considering the age and needs of the [children], [she] could assume a responsible position in the [lives] of the [children]” as required under § 17a-112 (b) (2). The trial court then concluded, after making the proper factual findings, that it was in the best interests of the children to terminate the respondent’s parental rights.

“The hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. See Practice Book § 1042.1 et seq. [now § 33-1 et seq.]. In the adjudicatory phase, the trial court determines whether the statutory ground for termination of parental rights exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether the termination of parental rights is in the best interests of the child. In re Maximina V., 44 Conn. App. 80, 82-83, 686 A.2d 1005 (1997).” In re Drew R., 47 Conn. App. 124, 127, 702 A.2d 647 (1997).

“The standard for review on appeal [from a termination of parental rights] is whether the challenged findings are clearly erroneous. In re Luis C., [210 Conn. 157, 166, 554 A.2d 722 (1989)]; In re Christina V., 38 Conn. App. 214, 223, 660 A.2d 863 (1995).” In re Eden F., 48 Conn. App. 290, 309, 710 A.2d 771, cert. granted on other grounds, 245 Conn. 917, 717 A.2d 234 (1998). “On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached .... Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) Id.

I

The respondent claims that the trial court improperly found that she failed to achieve rehabilitation in light of her testimony that she made changes in her personal lifestyle. Specifically, the respondent claims that her uncontradicted testimony that she stopped using drugs and began practicing religion should have led the trial court to conclude that she had achieved the required level of rehabilitation under § 17a-112 (b) (2). We disagree.

“The trial court is not bound by the uncontradicted testimony of any witness.” Bieluchv. Bieluch, 199 Conn. 550, 555, 509 A.2d 8 (1986); see Acheson v. White, 195 Conn. 211, 217, 487 A.2d 197 (1985). A trier of fact is free to reject even uncontradicted testimony. See State v. Dudla, 190 Conn. 1, 7, 458 A.2d 682 (1983). “It is settled that the trier of fact has the right to accept part and disregard part of the testimony of a witness.” Griffin v. Nationwide Moving & Storage Co., 187 Conn. 405, 422, 446 A.2d 799 (1982). “The trier is the judge of the credibility of all the witnesses and the weight to be given their testimony.” Id.

The trial court, therefore, was under no obligation to give particular weight to the respondent’s testimony in its determination of whether she had achieved rehabilitation under § 17a-112 (b) (2). The testis not whether there was any evidence produced as to the respondent’s personal rehabilitation, but whether the respondent has achieved the standard of personal rehabilitation required under § 17a-112 (b) (2).

“ ‘Personal rehabilitation’ as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent.” In re Migdalia M., 6 Conn. App. 194, 203, 504 A.2d 533, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986). Section 17a-112 (b) (2) “requires the trial court to analyze the respondent’s rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time.” (Internal quotation marks omitted.) In re Christina V., supra, 38 Conn. App. 220-21.

The trial court found by clear and convincing evidence that the children previously had been adjudicated neglected and that the respondent had not made realistic and sustained efforts to conform her conduct to acceptable parental standards. The court further noted that the respondent would require extensive therapy to deal with her lack of parenting skill and judgment and to deal with her psychiatric difficulties. The trial court found that giving the respondent additional time would not be likely to bring her parental performance within the standards required by § 17a-112 (b) (2).

There was ample expert testimony in support of the conclusions reached by the trial court. Two court-appointed clinical psychologists, David Mantell and Diana Badillo Martinez, evaluated the respondent and her children and submitted reports on their findings. Mantell evaluated the respondent and her children on three separate occasions and testified that the respondent had not demonstrated the necessary level of rehabilitation. Specifically, Mantell testified that the respondent was “unable [to] plan [an] action reflecting adult insight and judgment—e.g., marries a man with a drug addiction history, has another child . . . has not secured more hours of time with the children.” Mantell further testified that the respondent failed to provide “even minimally accepted care for her children.” Though Mantell was aware that the respondent had ceased to use drugs and had become an active church member, he remained unconvinced that she could resume a constructive parental role in the lives of her children. Mantell testified that the respondent “continued to display personality disorder, including immaturity and poor judgment, of such magnitude that she could not be relied upon to exercise good judgment and to provide the services that these children need on a regular basis.” On the basis of his observations, Mantell recommended that the respondent’s parental rights be terminated.

Martinez concurred with Mantell’s assessment of the respondent. Martinez testified that the respondent was “unable to parent these children with their special needs, even with twenty-four hour assistance. ” Martinez concluded that the respondent was “such a poor parent that an alternative parent would be needed; twenty-four hour assistance is an impractical plan.” “The psychological testimony from professionals is rightly accorded great weight in termination proceedings.” In re Nicolina T., 9 Conn. App. 598, 605, 520 A.2d 639, cert. denied, 203 Conn. 804, 525 A.2d 519 (1987). We find that there was ample evidence in support of the conclusions reached by the trial court.

Even if we assume that the respondent is now drug free and religious, the evidence clearly supports the court’s conclusion that she has not attained the requisite level of personal rehabilitation mandated under § 17a-112 (b) (2). Accordingly, we conclude that the findings of the trial court are supported by clear and convincing evidence.

II

The respondent also claims that the trial court improperly considered her conduct in court as evidence of her lack of appropriate judgment and parenting skills. The respondent argues that when the trial court directed her not to bring her infant to the next hearing, she was unable to make appropriate arrangements, and the court improperly held that conduct against her. Specifically, the respondent makes reference to the trial court’s statements in its memorandum of decision that “her failure to follow the advice of her attorney and her failure to secure child care for her [children] . . . were further indications of her lack of appropriate adult judgment and parenting skill.”

On March 17, 1997, at a pretrial hearing, the trial court, Dyer, J., gave the respondent permission to bring her nine month old infant into the courtroom. On June 10, 1997, the respondent came to court with her infant. The trial court indicated that the presence of the infant would detract from the respondent’s ability to pay attention to the proceedings and to work effectively with her attorney. Accordingly, the court advised the respondent to make day care arrangements for her infant during the trial. The next morning the respondent again brought her infant into the courtroom. In an attempt to accommodate the respondent, the court allowed her to observe the proceedings from an adjoining room. Appropriate breaks were provided by the trial court to afford the respondent’s attorney the opportunity to review the testimony with the respondent. The court noted that the respondent refused to stay in the observation room and preferred to walk around in the public corridor outside of the courtroom. The court also noted that during the course of the trial, the respondent would come into the courtroom with her child and depart at whim, never staying long even when the infant was quiet or asleep. The trial court further observed that on the final day of trial, the respondent “elected to testify over the objection of her lawyer . . . [and] [e]ven on that day she made no provisions for child care.” The court found that the respondent’s “failure to follow the advice of her attorney and her failure to secure child care for her child [were] further indications of her lack of appropriate adult judgment and parenting skill.”

The trial court’s reliance on the respondent’s demeanor as support for its decision constituted an evidentiary ruling. The law is clear that courtroom conduct may be considered by the trial court in reaching its decision. “It is the peculiar province of the trial court to observe the demeanor of the parties and their witnesses and to draw inferences therefrom as to the motives underlying their testimony and conduct. . . . Findings based upon these observations in the courtroom are in the same category as findings based upon a view of premises or property. Such evidence is as properly to be considered by the court in rendering its decision or making its finding as if presented by the lips of witnesses.” (Citations omitted; internal quotation marks omitted.) Solomon v. Aberman, 196 Conn. 359, 378-79, 493 A.2d 193 (1985). “Our standard of review for evidentiary matters allows the trial court great leeway in deciding the admissibility of the evidence. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done.” (Internal quotation marks omitted.) State v. Zollo, 36 Conn. App. 718, 723, 654 A.2d 359, cert. denied, 234 Conn. 906, 660 A.2d 859 (1995), quoting State v. Robinson, 227 Conn. 711, 732, 631 A.2d 288 (1993).

“The factfinding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties . . . Lupien v. Lupien, 192 Conn. 443, 445, 472 A.2d 18 (1984). The trial court properly considered the respondent’s conduct in court, including her failure to secure child care for her infant, as further indication of her lack of appropriate adult judgment.

The judgments are affirmed.

In this opinion the other judges concurred.

       The parental rights of the respondent father were also terminated. The father, however, did not appeal. We refer in this opinion to the respondent mother as the respondent.

       The trial court’s memorandum of decision references General Statutes (Rev. to 1997) § 17a-112 (c) (3) (B); however, because the petition for termination of parental rights was filed on June 13, 1995, the appropriate statute to be applied in this case is General Statutes (Rev. to 1995) § 17a-112 (b) (2). Both statutory provisions require the trial court to make the same determinations with regard to a parent’s degree of rehabilitation. All references in this opinion to § 17a-112 are to the 1995 revision. General Statutes (Rev. to 1995) § 17a-112 (b) provides in relevant part: “The superior court upon hearing and notice . . . may grant such petition if it finds, upon clear and convincing evidence, that the termination is in the best interest of the child and that . . . with respect to any nonconsenting parent, over an extended period of time, which . . . shall not be less than one year . . . (2) the parent of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . . ”

       The respondent’s youngest child is an infant who is living with her and not subject to the judgments of the trial court.

       Mantell testified that the respondent’s behavior had a harmful effect on both of her younger children. Mantell observed that during an evaluation of the respondent’s interaction with her children, she “promptly lost control of the younger children.” Mantell further testified that during this visit, the respondent alienated the younger children by emphasizing that she was their mother and that their foster mothers with whom the children had formed close bonds were not their real mothers.


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. CLAYTON E. WHEAT
    (AC 18116)
    Lavery, Spear and Daly, Js.
    Argued January 26
    officially released March 2, 1999

      Allan F. Friedman, for the appellant (defendant).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were Eugene J. Callahan, state’s attorney, mid Mitchell Rubin, assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant was convicted, after a trial to the court, of threatening in violation of General Statutes § 53a-62, and reckless endangerment in the first degree in violation of General Statutes § 53a-63. He claims that the trial court’s factual findings are not warranted and that its legal conclusions are incorrect. After reviewing the record we conclude that these claims are meritless. The trial court is the judge of the credibility of witnesses and its legal conclusions properly flowed from its factual findings. See State v. Leary, 51 Conn. App. 497, 503-504, 725 A.2d 328 (1999). “ ‘We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses.’ ” In re Tabitha T., 51 Conn. App. 595, 599, 722 A.2d 1232 (1999).

The judgment is affirmed.


author: O’CONNELL, C. J.

text:
    ROBERT A. MARGULIES v. VICTORIA A. CASSANO
    (AC 17554)
    O’Connell, C. J., and Foti and Landau, Js.
    Argued December 8, 1998
    officially released March 2, 1999

      John F. Morris, with whom, on the brief, was Ray-nald B. Cantin, for the appellant (plaintiff).

      Edith F. McClure, with whom, on the brief, was Gerald A. Roisman, for the appellee (defendant).
   Opinion

O’CONNELL, C. J.

The plaintiff appeals from the post-judgment orders of the trial court suspending his visitation with his minor son, modifying its child support orders and awarding counsel fees to the defendant to defend this appeal. The dispositive issue in this case is whether the trial court lacked jurisdiction to enter the underlying orders when neither party resided in Connecticut. Because we conclude that the trial court failed to make findings with respect to the court’s jurisdiction, we decline to consider the plaintiffs other claims and remand the case to the trial court with direction to make the requisite factual findings.

The parties’ marriage was dissolved on November 14, 1994. The relevant portions of the dissolution judgment provided that (1) the parties were to have joint custody of their minor son with the child’s primary residence to be with the defendant, (2) the plaintiff was to have reasonable visitation with his son, during which visits the plaintiff was to abide by certain conditions and (3) the plaintiff was to pay child support to the defendant in an amount that was automatically computed and adjusted annually on the basis of the parties’ gross incomes and the child support guidelines.

When the dissolution action was commenced, and for at least twelve months prior to that, both parties were residents of Connecticut. Shortly before rendition of the final judgment, the plaintiff relocated to the state of Washington where he has since resided. The defendant is now a legal resident of New York state and is presently stationed in Virginia on active duty with the United States Navy. The minor child resides with the defendant in Virginia.

The two postjudgment motions that precipitated this action were the defendant’s motion for modification of visitation and a motion for determination of child support. The trial court held hearings on several dates between January and June, 1997. During the February 13, 1997 hearing, the court briefly addressed the issue of jurisdiction and, despite noting that neither party resided in Connecticut, determined that the home state of the child was Connecticut for purposes of the Uniform Child Custody Jurisdiction Act (UCCJA), General Statutes § 46b-90 et seq. In making this determination, the trial court did not hear evidence from witnesses, but relied on the representations of counsel. When questioned on the issue of the child’s residence, counsel for the defendant admitted that he could not tell the court when the child last lived in Connecticut.

During a hearing on June 2, 1997, the court again addressed the issue of its jurisdiction and stated that “the fair language of paragraph 8B [of the dissolution agreement] can only be interpreted to establish the jurisdiction of the state of Connecticut over the mathematical issues raised for purposes of calculating child support at the time the decree was entered. ... It should be clear that as to other matters reflecting support of the child, as to other matters reflecting visitation and custodial issues, paragraph 8B and its language may not apply. That is there may well be other courts which would have jurisdiction over other issues relating to the child.” (Emphasis added.) Notwithstanding the expressed uncertainty, the trial court proceeded to exercise jurisdiction over all of the postjudgment matters and on the final day of hearings, August 11, 1997, the trial court announced its decision from the bench.

While it is true that enforcement of a custody modification is made more difficult by the fact that the custodial parent does not live within the court’s jurisdiction, the court does not lose control over custody and visitation matters concerning a minor child simply because the child does not presently reside in the state. Presutti v. Presutti, 181 Conn. 622, 628-29, 436 A.2d 299 (1980); Hurtado v. Hurtado, 14 Conn. App. 296, 303, 541 A.2d 873 (1988). Rather, “[a] trial court’s continuing jurisdiction over matters concerning the custody of a child is . . . dependent on those provisions encompassed within the [UCCJA] . . . Hurtado v. Hurtado, supra, 303; see also Kioukis v. Kioukis, 185 Conn. 249, 251, 440 A.2d 894 (1981) (Superior Court’s jurisdiction to modify visitation order as to minor child conferred and limited by statute).

The UCCJA, as adopted in chapter 815o of our General Statutes, provides superior courts with “jurisdiction to make a child custody determination by initial or modification decree if: (1) This state (A) is the home state of the child at the time of commencement of the proceeding, or (B) had been the child’s home state within six months before the commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as a parent continues to live in this state . . . .” General Statutes § 46b-93 (a).

“ ‘Home State’ means the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least six consecutive months . . . .” General Statutes § 46b-92 (6). “Whether this state is the ‘home state’ of the children at the time of the commencement of the proceeding . . . cannot initially be determined on appeal. Kioukis v. Kioukis, [supra, 185 Conn. 257].” Hurtado v. Hurtado, supra, 14 Conn. App. 305. “ ‘When issues of fact are necessary to the determination of a court’s jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses. . . .’ Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983).” Unisys Corp. v. Dept. of Labor, 220 Conn. 689, 695-96, 600 A.2d 1019 (1991).

In the present case, the trial court made the determination that the home state of the child pursuant to the UCCJA was Connecticut without making factual findings to support that determination. In fact, the court could not have made any factual findings with respect to this issue because it did not receive evidence from any witnesses on this issue and, instead, relied solely on the representations of counsel. “[I]t is well settled that statements of counsel are not evidence. State v. Roman, 224 Conn. 63, 68, 616 A.2d 266 (1992), cert. denied, 507 U.S. 1039, 113 S. Ct. 1868, 123 L. Ed. 2d 488 (1993); State v. Tillman, 220 Conn. 487, 496, 600 A.2d 738 (1991), cert. denied, 505 U.S. 1207, 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992).” State v. Sauris, 227 Conn. 389, 404, 631 A.2d 238 (1993). In fact, even the representations made by counsel to the court do not support a determination that Connecticut was the home state of the child at the commencement of the proceedings. When questioned with respect to when the child last lived in the state, counsel for the defendant conceded that he did not know.

The rulings on the defendant’s motions to suspend visitation, for modification of child support and for attorney’s fees are reversed and the case is remanded for a factual determination as to whether any of the conditions of § 46b-93 are satisfied so as to confer jurisdiction on the court; if the court finds that one of the conditions is satisfied, it shall exercise jurisdiction to determine the merits of the defendant’s motions.

In this opinion the other judges concurred.

       The defendant subsequently filed two additional motions, a motion for contempt dated February 4, 1997, and a motion for contempt dated March 10, 1997. Both contempt motions were withdrawn by the defendant and are not at issue in this appeal.

       “The Court: So, you can’t tell me when the child last lived in this state?
      “[Defendant’s Counsel]: No, I can’t, Your Honor.”


text:
    STATE OF CONNECTICUT v. JOSEPH M. KUNG
    (AC 17841)
    O’Connell, C. J., and Hennessy and Stoughton, Js.
    Argued January 19
    officially released March 2, 1999

      Joseph M. Kung, pro se, the appellant (defendant).

      Michael E. O’Hare, assistant state’s attorney, with whom, on the brief, were Eugene J. Callahan, state’s attorney, Matthew Coulotte, assistant state’s attorney, and Robert Hickey, certified legal intern, for the appel-lee (state).
   Opinion

PER CURIAM.

The defendant appeals, following a trial to the court, from the judgment of conviction of speeding in violation of General Statutes § 14-219. The defendant raises one claim of law and several claims of fact, which he contends were improperly determined by the trial court. We affirm the judgment of the trial court.

The defendant claims that the trial court improperly shifted the burden of proof to require him to prove that he was not guilty of the offense. The record discloses that a state trooper testified that the defendant was operating a motor vehicle at seventy-four miles per hour in a posted fifty-five miles per hour zone. Although the defendant testified on his own behalf, his testimony did not include the speed at which he was traveling.

At the close of evidence, the trial court found the defendant guilty of speeding. The trial court also stated that “[t]here was absolutely no evidence of [the defendant’s] not speeding.” On the basis of this statement, the defendant contends that there was an improper shifting of the burden of proof. We do not agree.

The due process clauses of the federal and state constitutions require the prosecution to prove every element of an offense beyond a reasonable doubt in order to secure a conviction. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Williams, 202 Conn. 349, 363, 521 A.2d 150 (1987). After a careful review of the record, briefs and oral arguments, it is clear that the defendant was not deprived of that constitutional right. The trial court’s comment was addressed to the weight of the evidence and not to the allocation of the burden of proof. It was an observation that there was no evidence contradicting the trooper’s testimony concerning the defendant’s speed. Accordingly, we conclude that the trial court did not unconstitutionally shift the burden of proof to the defendant.

The defendant’s remaining claims all raise issues of fact. It is axiomatic that “[a] reviewing authority may not substitute its findings for those of the trier of the facts.” Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn. App. 420, 423, 567 A.2d 1250 (1989), cert. denied, 214 Conn. 804, 573 A.2d 318 (1990). Our function on review of factual issues is to determine whether the judgment of the trial court was clearly erroneous. Natural Harmony v. Normand, 211 Conn. 145, 150, 558 A.2d 231 (1989). We conclude that it was not.

The judgment is affirmed.

       We note that the defendant appears pro se. It is the policy of this court “to allow great latitude to a litigant who, either by choice or necessity, represents himself in legal proceedings, so far as such latitude is consistent with the just rights of any adverse party . . . Bitonti v. Tucker, 162 Conn. 626, 627, 295 A.2d 545, cert. denied, 409 U.S. 851, 93 S. Ct. 62, 34 L. Ed. 2d 94 (1972). This is because “[a] party who, unskilled in such matters, seeks to remedy some claimed wrong by invoking processes which are at best technical and complicated, is very ill advised and assumes a most difficult task." O’Connor v. Solomon, 103 Conn. 744, 745, 131 A. 736 (1926). Nonetheless, while the court exhibits some degree of leniency toward a pro se appellant, it cannot entirely disregard established principles of law.


author: FOTI, J.

text:
    WILLIAM H. HONAN ET AL. v. JOSEPH DIMYAN ET AL.
    (AC 17121)
    O’Connell, C. J., and Foti and Landau, Js.

      Argued December 8, 1998
    officially released March 2, 1999

      Nancy Burton, for the appellants (plaintiffs).

      Thomas F. Maxwell, Jr., with whom was Joseph Dimyan, for the appellees (defendants).
   Opinion

FOTI, J.

The plaintiffs appeal from the judgment of the trial court, rendered after a jury trial, in favor of the defendants. On appeal, the plaintiffs claim that the trial court improperly (1) denied their motion for permission to file a motion for summary judgment, (2) precluded evidence concerning a collateral case, (3) denied their motion to set aside the verdict as it was against the weight of the evidence, (4) instructed the jury on their claim of invasion of privacy and (5) denied their motion for a new trial, which was based on the purported misconduct of both the trial court judge and defense counsel. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of this appeal. The plaintiffs in this case are William H. Honan and his three children. In April of 1990, Milton Burton and June Burton, the maternal grandparents of the Honan children, retained the defendants, attorney Joseph Dimyan and his Dan-bury law partnership, Coury & Dimyan, to file a visitation petition pursuant to General Statutes § 46b-59. The petition alleged that Honan and his wife, Nancy Burton, had denied the Burtons reasonable visitation with respect to the Honan children and, accordingly, sought reasonable visitation rights.

In response to the visitation petition brought by the Burtons, the plaintiffs filed an amended complaint against the defendants dated July 5,1990, alleging, inter alia, abuse of process, intentional infliction of emotional distress and invasion of privacy. On January 8, 1997, prior to the start of trial, the plaintiffs moved for partial summary judgment on their abuse of process count. The case had been assigned for trial, however, and the trial court refused to entertain the motion because the plaintiffs had failed to obtain the trial court’s permission to file that motion pursuant to Practice Book § 17-44.

On January 9, 1997, the day before the trial began, the plaintiffs filed a motion for permission to file their motion for summary judgment, which was denied by the trial court. The case was tried and the jury returned a verdict in favor of the defendants on all of the plaintiffs’ claims. Following the jury’s verdict, the plaintiffs filed a motion for a new trial and a motion to set aside the verdict. The trial court denied both motions and rendered judgment in favor of the defendants. This appeal followed.

I

The plaintiffs first claim that the trial court improperly denied their motion for permission to file a motion for summary judgment. We disagree.

Practice Book § 17-44 provides in relevant part: “In any action . . . any party may move for a summary judgment at any time, except that the party must obtain the judicial authority’s permission to file a motion for summary judgment after the case has been assigned for trial. . . .” (Emphasis added.) It is well established that the duty to provide this court with a record adequate for review rests with the appellant. See Practice Book § 60-5; Statewide Grievance Committee v. Clarke, 48 Conn. App. 545, 547, 711 A.2d 746, cert. denied, 245 Conn. 923, 717 A.2d 239 (1998). In this case, we have not been provided with either a written memorandum of decision or a transcribed copy of an oral decision, signed by the trial court, stating its reasons for refusing to grant the plaintiffs permission to file their motion for summary judgment. The plaintiffs, therefore, have failed to provide us with an adequate record with which to determine whether the trial court abused its discretion in denying the plaintiffs’ motion. Accordingly, we decline to review this claim.

II

The plaintiffs next claim that the trial court improperly precluded evidence concerning a collateral case. We disagree.

It is axiomatic that “[ejvidence is admissible only if it is relevant. . . . The trial court is given broad discretion in determining the relevancy of evidence and its decision will not be disturbed absent a clear abuse of that discretion.” (Citations omitted; internal quotation marks omitted.) Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 569, 657 A.2d 212 (1995). “Moreover, evidentiary rulings will be overturned on appeal only where there [is] ... a showing ... of substantial prejudice or injustice.” (Internal quotation marks omitted.) Paige v. St. Andrew’s Roman Catholic Church Corp., 247 Conn. 24, 37, 718 A.2d 425 (1998).

The cornerstone of the plaintiffs’ abuse of process claim is Caslagno v. Wholean, 239 Conn. 336, 684 A.2d 1181 (1996), in which our Supreme Court concluded that to bring a visitation petition pursuant to § 46b-59, the party seeking visitation must demonstrate, as a threshold matter, a “disruption of the family sufficient to justify state intervention.” Id., 338. The plaintiffs claim that because their family was “intact” at the time the Burtons’ visitation petition was filed, § 46b-59 was inapplicable and could not provide the basis for a visitation petition.

At trial, the plaintiffs attempted to call Thomas Cloutier, the attorney for the defendant family in Cas-tagno. Additionally, the plaintiffs attempted to introduce into evidence the pleadings from the Castagno case, which were, according to the plaintiffs, “indistinguishable” from the pleadings in their case. The plaintiffs argue that had the Castagno pleadings been introduced, and “had attorney Cloutier been permitted to testify, the jury would have had to conclude as a matter of law that Castagno controls this case and § 46b-59 has no application to the [plaintiffs].” The plaintiffs assert that with the introduction of this evidence, “the jury could have only concluded that [the defendants] wilfully abused [the judicial process] by instituting a lawsuit against [the plaintiffs] pursuant to a statute which had no application to them.”

In ruling that Cloutier’s testimony, as well as the Castagno pleadings, were inadmissible, the trial court determined that such evidence concerned a “collateral case” and, therefore, was irrelevant. We agree. The interjection of facts from a wholly unrelated case could have confused the jury. Additionally, we are not convinced that allowing Cloutier to “testify as to the fact of the pleadings in Castagno''’1 would have established, as a matter of law, that § 46b-59 had no application to the Honan family and that, as a result, the jury would have had to conclude that Dimyan wilfully abused the judicial process. We cannot say, therefore, that the trial court abused its discretion.

In addition, the plaintiffs cannot demonstrate that they suffered substantial prejudice or injustice because of the trial court’s ruling. The record discloses that the trial court admitted into evidence the headnote of our Supreme Court’s decision in Castagno, as well as a copy of § 46b-59. In fact, during the charge to the jury on the plaintiffs’ abuse of process claim, the trial court stated: “Of course, you have a copy of the statute which was the basis of bringing [the Burtons’] petition. You also have a copy of the [Castagno] headnote that indicated that . . . there was an interpretation that the statute did not apply to intact families.” (Emphasis added.)

It is clear that the juiy had before it sufficient evidence to determine that § 46b-59 did not apply to intact families. It had before it the headnote from the Castagno case, as well as the trial court’s statement that Castagno “indicated” that § 46b-59 “did not apply to intact families.” We cannot say that Cloutier’s testimony or the Castagno pleadings were necessary for the prosecution of the plaintiffs’ abuse of process claim.

Ill

The plaintiffs next claim that the trial court improperly denied their motion to set aside the verdict because it was against the weight of the evidence. The plaintiffs argue that they presented enough evidence to prove, by a preponderance of the evidence, their claims of abuse of process, invasion of privacy and intentional infliction of emotional distress. We disagree.

“Our standard of review, where the trial court’s action on a motion to set aside a verdict is challenged, is whether the trial court clearly abused its discretion. . . . The decision to set aside a verdict is a matter within the broad legal discretion of the trial court and it will not be disturbed unless there has been a clear abuse of that discretion. . . . The trial court may set aside a jury’s verdict only if it finds that the jury could not reasonably and legally have reached its conclusion. ” (Citations omitted; internal quotation marks omitted.) Mezes v. Mead, 48 Conn. App. 323, 328, 709 A.2d 597 (1998).

A

The plaintiffs assert that they presented enough evidence to prove their claim of abuse of process. “An action for abuse of process lies against any person using a legal process against another in an improper manner or to accomplish a purpose for which it was not designed. Varga v. Pareles, [137 Conn. 663, 667, 81 A.2d 112 (1951)]; Schaefer v. O. K. Tool Co., 110 Conn. 528, 532-33, 148 A. 330 (1930). Because the tort arises out of the accomplishment of a result that could not be achieved by the proper and successful use of process, the Restatement Second (1977) of Torts, § 682, emphasizes that the gravamen of the action for abuse of process is the use of a legal process . . . against another primarily to accomplish a purpose for which it is not designed .... Comment b to § 682 explains that the addition of primarily is meant to exclude liability when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant. See also 1 F. Harper, F. James & O. Gray, Torts (2d Ed. 1986) § 4.9; R. Mallen & V. Levit, Legal Malpractice (2d Ed. 1981) § 61; W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 121.” (Emphasis in original; internal quotation marks omitted.) Mozzochi v. Beck, 204 Conn. 490, 494, 529 A.2d 171 (1987).

As stated previously, the underlying visitation petition instituted by the Burtons was based on § 46b-59, which provides in relevant part that “[t]he Superior Court may grant the right of visitation with respect to any minor child or children to any person, upon an application of such person. ...” The plaintiffs assert that the Burtons’ visitation petition was brought “knowingly pursuant to a statute which did not apply to them.” They claim, therefore, that “[o]n its face, the fact of the suit is an abuse of process.” We disagree.

Again, the crux of the plaintiffs’ abuse of process claim is Castagno v. Wholean, supra, 239 Conn. 336. The plaintiffs, however, overlook that the Burtons’ visitation petition was filed in April, 1990, and then withdrawn in September, 1993. The Castagno decision, on the other hand, was not released until November, 1996. Accordingly, even if bringing a visitation petition against an intact family pursuant to § 46b-59, as that statute has been interpreted by Castagno, can provide the basis for an abuse of process claim, it cannot do so in this case because the defendants could not have known of the statute’s nonapplicability until after the Castagno decision was released.

Further, § 46b-59 does not, on its face, state that a person bringing a visitation petition must establish the “disruption of the family sufficient to justify state intervention.” Id., 338. This was the interpretation given the statute by our Supreme Court after a thorough examination of the common law and the “contextual interplay” of § 46b-59 with other statutes, as well as the statute’s legislative history. Id., 340-47. It does not appear, therefore, that filing the visitation petition prior to the Cas-tagno decision, in and of itself, necessarily evidences that the defendants filed that petition “knowingly pursuant to a statute which did not apply” to the plaintiffs.

In addition to the mere fact of the petition itself, the plaintiffs point to several facts that they maintain establish that the defendants abused the legal process. First, the plaintiffs assert that Dimyan “made false representations to judicial authorities” in his visitation petition. The plaintiffs assert further that Dimyan “went on to exploit his abuse of the process by peddling lies and smears [about the plaintiffs] to news media.” Finally, the plaintiffs assert that Dimyan refused to accept mail from the plaintiffs’ attorney during the pendency of the visitation suit.

It does not necessarily follow from the plaintiffs’ allegations, however, that the defendants abused the legal process. Even if the jury believed the plaintiffs’ allegations, it reasonably could have concluded that the defendants, in bringing the visitation petition, legitimately sought to secure visitation rights for the Burtons.

B

The plaintiffs next assert that they presented sufficient evidence to prove their claim of invasion of privacy. Our Supreme Court has described the four types of invasion of privacy: “(1) appropriation, for the defendant’s benefit or advantage, of the plaintiff’s name or likeness; (2) intrusion upon the plaintiffs physical solitude or seclusion; (3) publicity, of a highly objectionable kind, given to private information about the plaintiff even though it is true and no action would lie for defamation; and (4) publicity which places the plaintiff in a false light in the public eye.” Venturi v. Savitt, Inc., 191 Conn. 588, 591 n.1, 468 A.2d 933 (1983).

While the plaintiffs’ brief mentions three of the four types of invasion of privacy claims, their brief adequately addresses only one, i.e., that the jury could not have reasonably found that the plaintiffs failed to prove that they were placed in a false light by the defendants. The plaintiffs maintain that after bringing the visitation petition, the defendants publicized the suit and reported that the Burtons had not seen their grandchildren for more than a year and were simply seeking a chance to visit them before they “passed away.” This is an apparent reference to an article that appeared in the Danbury News-Times on May 18, 1990. The plaintiffs claim that these statements placed them in a false light and that the defendants attempted to “create the impression that the Honan family was mean and wicked.”

To establish invasion of privacy by false light, the plaintiffs were required to show that “ ‘(a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.’ 3 Restatement (Second), Torts § 652E; see Goodrich v. Waterbury Republican-American, Inc., [188 Conn. 107, 127, 448 A.2d 1317 (1982)].” Jonap v. Silver, 1 Conn. App. 550, 557-58, 474 A.2d 800 (1984).

At trial, the plaintiffs introduced evidence, through the testimony of one of the children, that the Burtons had, in fact, visited the Honan children during the year preceding the visitation petition. This evidence contradicts directly the statement purportedly made by the defendants that the Burtons had not seen their grandchildren for more than a year. The plaintiffs, however, have pointed to nothing in the record that supports a finding that the plaintiffs were portrayed in a manner that was highly offensive to an ordinary person, or that the defendants had knowledge of or acted in reckless disregard as to the falsity of the statement made. Absent such evidence, we cannot say that the jury could not reasonably and legally have reached its conclusion that the plaintiffs had failed to prove their claim of invasion or privacy.

C

The plaintiffs finally assert that they presented enough evidence to prove their claim of intentional infliction of emotional distress. To prevail on a claim of intentional infliction of emotional distress, four elements must be established. “It must be shown: (1) that the actor intended to inflict emotional distress; or that he knew or should have known that emotional distress was a likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiffs distress; and (4) that the emotional distress sustained by the plaintiff was severe.” (Internal quotation marks omitted.) DeLaurentis v. New Haven, 220 Conn. 225, 266-67, 597 A.2d 807 (1991).

In support of this final sufficiency claim, the plaintiffs state that in filing the visitation petition, which, according to the plaintiffs, was based on an inapplicable statute and “premised on a he,” the defendants “could have had no purpose other than to create havoc in the lives of the plaintiffs and inflict emotional torture on them.” (Emphasis in original.) Aside from this conclu-sory statement, however, the plaintiffs have directed us to little evidence that would otherwise support the elements of a claim of intentional infliction of emotional distress. Absent such evidence, we cannot say that the jury could not reasonably and legally have reached its conclusion.

IV

The plaintiffs next claim that the trial court improperly charged the jury on invasion of privacy by instructing the jury to find for the defendants if invasion of privacy occurred based on comments related to court proceedings, although made out of court. The plaintiffs rightly argue that statements made by attorneys in court generally would be privileged, while statements made outside of court might not be. See, e.g., Tucker v. Bitonti, 34 Conn. Sup. 643, 647, 382 A.2d 841 (1977) (absolute privilege that protects witnesses, parties and attorneys from liability for defamation occurring in conduct of judicial proceeding would apply also to infraction of right of privacy in course of such proceeding).

An examination of the charge, however, discloses that the trial court properly instructed the jury and did not explain that statements made by the defendants “out of court” would be privileged. In reviewing this claim, we are mindful that “the test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.” (Internal quotation marks omitted.) Holbrook v. Casazza, 204 Conn. 336, 351-52, 528 A.2d 774 (1987), cert. denied, 484 U.S. 1006, 108 S. Ct. 699, 98 L. Ed. 2d 651 (1988). The jury charge, as a whole, was not improper.

V

The plaintiffs’ final claim is that the trial court improperly denied their motion for a new trial, which they based on the purported misconduct of both the trial court judge and defense counsel. We disagree.

“ ‘It is [the judge’s] responsibility to have the trial conducted in a manner which approaches an “atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding.” ’ State v. Echols, 170 Conn. 11, 13, 364 A.2d 225 (1975), quoting Glasser v. United States, 315 U.S. 60, 82, 62 S. Ct. 457, 86 L. Ed. 680 (1942).” Cameron, v. Cameron, 187 Conn. 163, 169, 444 A.2d 915 (1982).

In their appellate brief, the plaintiffs recite a hodgepodge of at least twelve specific instances of purported misconduct and procedural irregularity. These claims are largely unsupported by analysis or legal authority. In fact, while many of the specific instances cited occurred outside the presence of the jury, some occurred outside the courthouse itself. The plaintiffs claim that this conduct “was so prejudicial as to have deprived [them] of a fair trial.” After an examination of the specific instances cited, however, we cannot say that the plaintiffs were denied a fair trial.

In this opinion the other judges concurred.

       General Statutes § 46b-59 provides in relevant part: “The Superior Court may grant the right of visitation with respect to any minor child or children to any person, upon an application of such person. Such order shall be according to the court’s best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable, provided the grant of such visitation rights shall not be contingent upon any order of financial support by the court. In making, modifying or terminating such an order, the court shall be guided by the best interest of the child, giving consideration to the wishes of such child if he is of sufficient age and capable of forming an intelligent opinion. Visitation rights granted in accordance with this section shall not be deemed to have created parental rights in the person or persons to whom such visitation rights are granted. . . .”

       Although Nancy Burton was a party to the underlying visitation petition brought by the Burtons, she was not a party to the suit that gave rise to this appeal. As a member of the Connecticut bar, however, she acted as both trial counsel and appellate counsel to the plaintiffs, her husband and three children.

       The plaintiffs do cite testimony given at trial that appears to suggest that they were at least upset by the filing of the visitation petition. For example, one of the children testified that as a result of the suit, he had experienced emotional pain. Whether the jury determined that this pain did not rise to the level of “severe” emotional distress, or simply disbelieved that testimony, we cannot say. “It is without question that the jury is the ultimate arbiter of fact and credibility. State v. Dyson, 217 Conn. 498, 506, 586 A.2d 610 (1991). As such, it may believe or disbelieve all or any portion of the testimony offered.” State v. Hart, 221 Conn. 595, 604, 605 A.2d 1366 (1992).

       The trial court charged the jury as follows: “If you find the substance of any communication was related to the grandparents’ petition for visitation which was a pending court action at the time of the communication, then you must find for the defendant because of any such communications falten from the court proceedings and not outside the court, because they are privileged communications that cannot subject... a defendant to liability. So, those would be any communications within the—the courthouse, so to speak.” (Emphasis added.)