author: Foti, J.

text:
    State of Connecticut v. Richard Boutwell
    (6411)
    Dupont, C. J., Daly and Foti, Js.
    Argued December 13, 1988
    decision released May 2, 1989

      Arthur P. Meisler, with whom, on the brief was Pamala J. Favreau, law student intern, for the appellant (defendant).

      Carolyn K. Longstreth, deputy assistant state’s attorney, with whom, on the brief, was John H. Malone, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from judgments of conviction, rendered after a jury trial, of three counts each of sexual assault in the first degree in violation of General Statutes § 53a-70 (a), sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), and risk of injury to a child in violation of General Statutes § 53-21, and one count of sexual assault in the third degree in violation of § 53a-72a (a) (1). The defendant claims that the trial court erred (1) in refusing to conduct an in camera review of the psychiatric records of the two complaining witnesses, and (2) in granting the state’s motion for closure. We find error in part on the first issue.

This case involves allegations by two minor females, M and C, that the defendant sexually abused them while they were living in his home as foster children. M and C are siblings who, along with their other sister X, were placed by the department of children and youth services (DCYS) in the defendant’s home in December, 1981. M testified that she lived with the defendant and his wife for approximately one and one-half years. One evening in the spring of 1982, when M was six years old, her foster mother and sisters went to play bingo and she was left alone in the house with the defendant. While M was watching television in the living room, the defendant called her into his bedroom. The defendant removed her shirt and told her to remove her pants. The defendant then got on top of M and vaginal penetration occurred. This abuse continued twice weekly for several months. M did not mention these events to anyone until several years later, in 1985, after her adoption by a different family.

C testified that on an evening in April, 1984, when she was eleven years old, she was alone in the house with the defendant. While C and the defendant were watching television, the defendant sexually assaulted her with vaginal penetration occurring. Similar assaults occurred on two other occasions. In addition, C testified that the defendant kissed and fondled her often. While still living in the defendant’s home, C told her biological mother about the assaults and the mother contacted the Enfield police department. Upon questioning, C denied she was assaulted by the defendant. Subsequently, after running away from the defendant and his wife and being placed in another foster home, C again disclosed that the defendant had sexually assaulted her.

I

In the defendant’s first assignment of error, he claims that his federal and state constitutional rights to confrontation were violated by the trial court’s refusal to grant an in camera review of the complainants’ psychiatric records. In particular, the defendant asserts that the trial court incorrectly applied the standard enunciated in State v. Esposito, 192 Conn. 166, 471 A.2d 949 (1984), in determining whether the defendant made the requisite showing to entitle him to an in camera review of those records. The defendant argues that he either met the standard established by Esposito or that subsequent holdings have modified this standard establishing a less stringent burden on the defendant. We hold that the required threshold showing under Esposito was met.

Our resolution of this issue requires us, once again, to balance two conflicting interests: the defendant’s right to effective cross-examination versus the witness’ right to maintain the confidentiality of his or her personal psychiatric history. We have recently had occasion to address this issue in State v. Petterson, 17 Conn. App. 174, 551 A.2d 763 (1988). In Petterson, this court succinctly enunciated the standard for reviewing a claim of access to “known” psychiatric records as gleaned from our abundant case law in this area.

“When the records sought by the defendant are privileged, the witness’ right to privacy must be weighed against the defendant’s right to bring to the jury’s attention facts affecting the witness’ credibility. State v. Hufford, [205 Conn. 386, 402, 533 A.2d 866 (1987)]; State v. Storlazzi, [191 Conn. 453, 458, 464 A.2d 829 (1983)]. In Storlazzi, the Supreme Court approved an in camera inspection by the trial judge of the records of the complaining witness for material relevant to the issue of credibility. After such examination, access to the records will be granted when the material is espe-daily probative of the witness’ ability to comprehend, know and correctly relate the truth. With respect to the admissibility of such records, however, ‘access to “such [records] must be left to the discretion of the trial court which is better able to assess the probative value of such evidence as it relates to the particular case before it”; [State v. Piskorski, 177 Conn. 677, 737, 499 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979)]; and to weigh that value against the interest in confidentiality of the records. Whether and to what extent access to the records should be granted to protect the defendant’s right of confrontation must be determined on a case by case basis.’ State v. Storlazzi, supra, 459; State v. Hufford, supra, 403.” State v. Petterson, supra, 178-79.

“In State v. Esposito, supra, the court held that, in order to compel the trial court to inspect psychiatric records for potentially impeaching information, the defendant must make a showing that there is reasonable ground to believe that failure to produce the information is likely to impair the defendant’s right of confrontation.” Id., 179.

Our case law distinguishes between two types of situations and has established separate procedures for each. See State v. Hufford, supra, 403. Where the defendant, as in the present case, is fully aware of the existence of psychiatric records, the procedures set forth in State v. Bruno, 197 Conn. 326, 497 A.2d 758 (1985), cert. denied, 475 U.S. 1119, 106 S. Ct. 1635, 90 L. Ed. 2d 181 (1986), and State v. Esposito, supra, control. Under this situation, the court will, after the requisite showing under Esposito has been made, conduct an in camera review of the records. Under circumstances in which the defendant either is uncertain as to whether privileged information exists or knows of the existence of psychiatric records, but is uncertain as to the existence of a witness’ unrecorded psychiatric history, however, the trial court must follow the procedures enunciated in State v. Pierson, 201 Conn. 211, 228, 514 A.2d 724 (1986). Under the latter situation, the trial court must conduct a voir dire of psychiatric personnel who may possess information related to the witness’ unrecorded psychiatric history to discover whether such information exists, and whether it would be admissible. Id.

State v. Pierson, supra, enlarged upon Esposito by requiring the trial court to conduct a voir dire of psychiatric personnel for the purpose of determining the existence of unrecorded communications. The basic threshold requirement under Esposito that the defendant establish that there is a reasonable basis in the evidence for believing that known psychiatric records “may” contain information relating to a mental condition that “might” affect a witness’ testimonial capacity; see State v. Silva, 201 Conn. 244, 256 n.2, 513 A.2d 1202 (1986); State v. Hufford, supra, 403-404; has not, as the defendant contends, been modified or eliminated by the holding in Pierson.

Pierson applies to situations in which there is a reasonable basis for the trial court to conclude that communications between the witness and the psychiatric personnel were not recorded and that those unrecorded communications may be relevant to the testimonial capacity of the witness. The voir dire is conducted of persons who may have information relating to the mental condition of a witness. State v. Pierson, supra, 228.

In Pierson, during the court’s initial voir dire and after it had conducted the in camera inspection, the psychiatric counselor testified that during two conferences with the witness he had made no contemporaneous notes because the policy of his office was to make notations only at the beginning of each month for the previous month. He testified further that on five other occasions he had consulted with the complainant for which there were no notations made whatsoever. Pier-son did not change the requirement that the defendant make a threshold showing under Esposito, because the trial court in Pierson, for reasons not apparent on the record, conducted an in camera inspection of the records sua sponte with the consent of the witness, and without objection by either the state or the defendant. The issue of whether the defendant made a threshold showing under Esposito, was not, therefore, before the court. The Supreme Court noted that if the threshold showing, required under Esposito, that the witness had a mental condition that affected his testimonial capacity had been required in Pierson, “it is doubtful that the evidence before us . . . would be sufficient to require the court to engage in a review of the psychiatric records of the complainant.” State v. Pierson, supra, 226.

Cases decided subsequent to Pierson have similarly not modified the requirement in Esposito for a threshold showing. In State v. Hufford, supra, a voir dire was required to determine whether psychiatric records in fact existed, and if so whether those records contained admissible information. Hufford did not alter the requirements under Esposito where written records are known to exist and the defendant seeks access to them.

In State v. Saraceno, 15 Conn. App. 222, 243, 545 A.2d 1116 (1988), we recognized that an Esposito showing is a necessary preliminary requirement, after which the defendant must be afforded an opportunity to discover whether additional, unrecorded communications exist “to allow the use of the mental health records of a witness not only for the purposes of cross-examining the witness . . . through the examination and cross-examination of such mental health professionals who ‘may have information relating to the mental condition of a witness that might affect his testimony . . . . ’ State v. Pierson, supra.” (Emphasis omitted.) State v. Saraceno, supra, 243. “[T]he trial court, pursuant to Esposito, found that the mental health records did contain information relevant to the testimonial capacity of the witness and ordered the records released, in total, to the defendant.” Id.

We conclude that while the Supreme Court has expanded Esposito to allow a defendant greater discovery of privileged psychiatric material, the burden of proof the defendant must meet in order to obtain an in camera review of “known” records enunciated in Esposito survives.

Having determined that the standard required under Esposito controls, we now turn to the issue of whether the defendant in this case met that standard. We first address the defendant’s claim as it relates to M. In the present situation, after the state’s direct examination of M, the defendant moved for disclosure of records concerning her adoption and interaction with case workers that were kept by DCYS, records concerning her admission, treatment and discharge from River-view Hospital, the Newington Children’s Hospital and Northcentral Mental Health Clinic, and her records in the Enfield school system. After this motion was denied, the defendant moved for an in camera review of those records. The court denied this motion-only as it applied to the psychological or psychiatric records of M, on the ground that there had been no waiver of the patient-psychiatric privilege by M pursuant to General Statutes § 52-146c, and no preliminary showing made by the defendant as set forth in State v. Esposito, supra. The defendant then moved for an in camera review of the records other than psychological or psychiatric for the purpose of discovering any relevant material. The court granted this motion. Thereafter, the defendant, for the first time, offered evidence to meet his burden under Esposito. Prior to the court’s ruling, M, through the court appointed guardian ad litem, indicated that she had no objection to the court conducting an in camera inspection, subject to the court’s finding that the defendant had sustained his required showing under Esposito.

The court permitted the defendant, outside the presence of the jury, to question M and the defendant’s wife, for the purpose of making the requisite showing under Esposito. M was asked a series of questions with respect to her stays at the various hospitals, including the reason for admittance, and with whom she spoke while there. To virtually all of these questions, M stated she could not remember. The defendant next asked his wife a number of questions regarding M’s behavior while she lived in their home and about M’s medical history. The defendant’s wife testified that M had difficulty getting along with the family, spent some time at the Riverview Hospital and was involved in other various programs during her stay at their home, which included the Newington Children’s Hospital, the Child Guidance Clinic in Manchester, the Curtiss Home in Meriden, and the Casey Family Program. In addition, she testified that M had made accusations that a young neighbor abused her. The court denied the defendant’s motion finding that he had not made the requisite showing under Esposito, and the records were sealed and marked as exhibits for identification.

We conclude that under the standard set forth in State v. Esposito, supra, the defendant sustained his burden of showing that M’s records might contain information that could affect her testimonial capacity or credibility, thereby entitling him to have the court inspect those records in camera. Although evidence of psychological or psychiatric consultation for “parent-child conflicts” may not be sufficient for the requirement or threshold showing pursuant to Esposito; State v. Pierson, supra, 226; the defendant demonstrated that M had spent some time in a number of children’s psychiatric hospitals, had emotional and behavioral problems while at the Boutwells, had difficulty recollecting past events, and had accused a neighbor of abuse. This proof was sufficient under Esposito to allow the court to examine the records to determine whether they contained any evidence of M’s mental condition significantly relating to her testimonial capacity. Further, the court was aware that M, on direct examination before the jury, stated that after leaving the Boutwell’s house she had gotten into trouble for lying, and that event led to her telling her adoptive mother what had happened regarding her being sexually abused by the defendant.

We next turn to the defendant’s claim that he should have had access to C’s records. We decline to review this claim because the defendant has not properly preserved this matter for appellate review. Practice Book § 4185; see State v. Lonergan, 16 Conn. App. 358, 548 A.2d 718 (1988), cert. granted on other grounds, 210 Conn. 812, 556 A.2d 611 (1989). With respect to C, the trial court reviewed in camera and turned over to the defendant certain records from DCYS with the exception of those records deemed to relate to C’s psychiatric history. The trial court did not review her Enfield school records because the attached subpoena stated that psychiatric records were enclosed. The defendant did not even attempt to make any showing that these records could contain information that would affect her testimonial capacity. Absent such a request by the defendant in the trial court, we decline to review his claim with respect to C.

This case must therefore be remanded for an in camera review of M’s psychiatric records. If the court determines that the records contain no impeaching materials, the defendant’s conviction will stand. If, on the other hand, the trial court determines that impeaching evidence is contained therein, M’s permission to disclose such information to the defendant must be obtained. If M refuses, her testimony must be wholly stricken and, since she was the only witness to the crimes committed against her, the case must be dismissed as to those crimes. If she permits the defendant access to the records, the court must order a new trial as to the charges involving M only.

II

The defendant’s next claim is that he was denied his state and federal constitutional rights to a public trial by the trial court’s decision to grant the state’s motion for closure. The following procedural facts are relevant to this issue. Prior to trial, the state moved, pursuant to Practice Book § 895, to exclude the public from the courtroom during the testimony of the two minor victims. Initially, after some brief discussion, the trial court granted the state’s motion. The next day, however, the trial court granted the defendant’s motion for reconsideration of its ruling, vacated that ruling and scheduled an evidentiary hearing on the state’s closure motion. At the hearing, the state presented testimony from two physicians, who, after examining the witnesses, testified that an open courtroom would inhibit M’s and C’s testimony. After the hearing, the trial court again granted the state’s motion for closure and fully set forth his findings on the record.

It is apparent from the record that in this case the defendant was fully aware of his right to an interlocutory appeal of this ruling and waived that right. Both prior to and after the trial court’s original and final ruling on the closure motion, the court made explicit reference to the defendant’s right to an expedited appeal. The defendant did not take advantage of his statutory right to immediate review of this ruling, and there is no reason stated on the record as to why he did not appeal at that time.

General Statutes § 51-164x provides in pertinent part that “[a]ny person affected by a court order which prohibits any person from attending any session of the court . . . shall have the right to appeal such order by filing a petition for review with the appellate court within seventy-two hours from the issuance of the order.” “This statutory right to an expedited review of a closure order provides immediate protection of a defendant’s right to a public trial.” State v. Kelly, 208 Conn. 365, 371, 545 A.2d 1048 (1988). Where the record does not disclose “any justifiable reason for the defendant’s failure to pursue the statutory remedy of expedited appeal, we . . . ordinarily decline to review [a] claim that the trial court erred in ordering closure. ‘A statute which provides that a thing shall be done in a certain way carries with it an implied prohibition against doing that thing in any other way.’ State ex reL. Barlow v. Kaminsky, 144 Conn. 612, 620, 136 A.2d 792 (1957).” State v. Kelly, supra, 371.

The defendant concedes that he did not seek an expedited appeal of this issue as authorized by General Statutes § 51-164x and Practice Book § 895, but claims that because this issue involves a question of constitutional dimension, he is entitled to review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). In support of his claim that this issue is reviewable, the defendant relies on State v. Kelly, supra, in which our Supreme Court found a similar claim reviewable under Evans.

To determine whether a claim merits review under the Evans doctrine, we “ ‘must ask a series of questions . . . and answer each in the affirmative before continuing to the succeeding question.’ State v. Newton, [8 Conn. App. 528, 531, 513 A.2d 528 (1986)]. ‘The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.’ Id.

“First, does the defendant raise an issue which, by its terms, implicates a fundamental constitutional right? This question looks solely to whether the label which the defendant places on the claim is constitutional in nature.

“Second, is the defendant’s constitutional claim adequately supported by the record? This question requires that we review the record in a limited way and determine, on the basis of that limited review, whether the defendant’s claim is truly of constitutional proportions or is simply characterized as such by the defendant. In those instances in which our Supreme Court or this court has already clearly indicated that the particular claim is or is not of constitutional proportions and therefore reviewable or not reviewable, a summary ‘yes’ or ‘no’ answer may be sufficient.

“Third, ‘was there, in fact, based on the record, a deprivation of a constitutional right of a criminal defendant?’ State v. Newton, supra. This question requires that we fully review the defendant’s claim to determine whether a fundamental constitutional right of his was violated.

“Fourth, ‘did the deprivation deny the defendant a fair trial, thereby requiring’ that his conviction be set aside? Id. This question requires that we determine, under appropriate standards of harmless error or other similar doctrines, whether the error requires reversal.” State v. Thurman, 10 Conn. App. 302, 306-307, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987); see also State v. Bailey, 209 Conn. 322, 329-30 n.4, 551 A.2d 1206 (1988); State v. Huff, 10 Conn. App. 330, 334, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987).

The first and second requirements under the above-stated test are readily met. State v. Kelly, supra, 371; State v. Sheppard, 182 Conn. 412, 415, 438 A.2d 125 (1980). Applying the third step in the analysis, however, we have reviewed the record and the defendant’s claim and conclude that the defendant was not deprived of a constitutional right.

We reach this result based on a number of considerations. While the right to an open judicial process serves an important public interest, “[ljike other important constitutional rights, the right to a public trial ‘is not a limitless imperative.’ ” State v. Sheppard, supra, 415, quoting Aaron v. Capps, 507 F.2d 685, 687 (5th Cir. 1975). “ ‘The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.’ Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984). ‘Under Press-Enterprise, the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.’ Waller v. Georgia, 467 U.S. 39, 48, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984).” State v. Kelly, supra, 372. Therefore, the standard for closure requires the trial court to follow a number of procedural prerequisites prior to closure.

The present case is distinguishable from State v. Kelly, supra. In Kelly, the Supreme Court found that the trial court made no findings as required by Waller v. Georgia, supra, and during the pendency of the trial in Kelly, the complainant participated in an interview with a local newspaper, in which she discussed the subject matter of her testimony which was included in the closure order. Our review of the record in this case, in contrast to Kelly, reveals that the trial court followed all the proper procedural requirements. As required, it held an evidentiary hearing, and made the requisite findings on the record. In addition, the trial court’s order was narrowly fashioned to respond to the need for closure, in that the courtroom was closed only during the testimony of the two minor victims. Therefore, on this record, it is evident that in exercising its discretion, the trial court followed all necessary procedural requirements and gave this issue the reasoned scrutiny required.

This case is also distinguishable from State v. Kelly, supra, in that it is clear from this record that the defendant made a considered and knowing waiver of his right to an expedited appeal. The following discussions took place on the record, and clearly disclose the defendant’s knowledge of this right. With respect to the trial court’s original ruling on the motion for closure, it calculated, on the record, the seventy-hour period during which the proceedings would be stayed. In his request for reconsideration of this ruling, the defendant asked that the motion be heard immediately in light of the fact that “the appeal time is running.” During the evidentiary hearing, the trial court mentioned the fact that if it granted the motion, a stay would go immediately into effect. At the close of the second hearing, the trial court again calculated on the record the stay period and commented that “any appeal pursuant to the appropriate sections of the practice book or statute should be filed at that time.” The court then asked the court monitor to use her best efforts to make the transcripts of the hearing available for the defendant to appeal. At the close of the hearing, defense counsel indicated that he would let the state’s attorney know whether the defendant intended to file an appeal because “he had to consult with [his] clients.” The defendant did not appeal, and the record does not indicate why the defendant failed to pursue this right. It is clear on this record that the defendant was fully aware of his right to an expedited appeal, that the trial court made every effort to inform the defendant of this right, that the trial court instituted the necessary seventy-two hour stay of the proceedings, and that during the stay, the defendant did not appeal. On this record, it is evident that the defendant made an explicit waiver of his right to appeal, and did not view this waiver as prejudicial to his case. Having waived his right to immediate protection of his right to a public trial, the defendant cannot now claim a deprivation of that right.

Evans review is a rule of “principled appellate discretion designed to apply ‘[only] in [the] most exceptional circumstances. .. .’ State v. Evans, [supra, 69]. It is designed to apply in such circumstances where, even in the absence of the defendant’s having raised the issue in the trial court, ‘the record adequately supports [his] claim that [he] has clearly been deprived of a fundamental constitutional right and a fair trial.’ (Emphasis added.) Id., 70. It is ... a rule aimed at preserving the fundamental integrity of the adjudicative process and avoiding fundamental injustice, and not at simply detecting error, even of a constitutional nature.

“It is not designed to protect defendants or their counsel who, ‘through neglect, inattention or as a trial strategy refrain from making proper objection or raising in the trial court any available constitutional defenses, confident that if the outcome of the trial proves unsatisfactory without making objections and taking exceptions and raising any available constitutional issue they may still prevail by assigning error or raising the constitutional issue for the first time on appeal.’ State v. Evans, supra, 67. Thus, the ‘Evans trial court bypass to this court is a narrow constitutional path and not the appellate Champs Elysees.’ State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982)....” State v. Cosby, 6 Conn. App. 164, 172-74, 504 A.2d 1071 (1986).

“It is rare that a claim which the defendant did not think important enough to raise at trial will require reversal of his conviction.” State v. Cosby, supra, 173. The defendant’s silence at trial is a “powerful signal that, because of the posture of the case, he did not hear the defect in the harmful manner which he presses on appeal, or even if he did so hear it, he did not deem it harmful enough to press in the trial court.” State v. Huff, supra, 338.

There is error in part and the case involving crimes allegedly committed against M (Superior Court docket no. 51987) is remanded for proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The sixth amendment to the United States constitution provides in part: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . . .” “The right to confrontation is made obligatory on the states by the fourteenth amendment to the United States constitution. Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965); State v. Reardon, 172 Conn. 593, 599, 376 A.2d 65 (1977).” State v. Hufford, 205 Conn. 386, 401 n.7, 533 A.2d 866 (1987).

       Article first, § 8, of our Connecticut constitution contains a provision virtually identical to the federal provision: “In all criminal prosecutions, the accused shall have the right ... to be confronted by the witnesses against him . . . .”

       General Statutes § 52-146e protects certain records relating to a person’s psychiatric care from disclosure.

       Similarly, the circumstances surrounding the in camera inspection of the records in State v. Herring, 210 Conn. 78, 554 A.2d 686 (1989), are unknown.

       The sixth amendment to the United States constitution provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.”
      Article first, § 8, of the Connecticut constitution provides in pertinent part: “In all criminal prosecutions, the accused shall have a right . . . to a speedy, public trial . . .

       “[General Statutes] § 51-164x. appeal of order prohibiting attendance at court session, (a) Any person affected by a court order which prohibits any person from attending any session of court, except any session of court conducted pursuant to section 46b-11, 46b-49, 46b-122 or 54-76h or any other provision of the general statutes under which the court is authorized to close proceedings, whether at a pretrial or trial stage, shall have the right to appeal such order by filing a petition for review with the appellate court within seventy-two hours from the issuance of such court order.
      “(b) No such order shall be effective until seventy-two hours after it has been issued, and the filing of any petition for review shall stay the order.
      “(c) The appellate court shall provide an expedited hearing on such petition in accordance with such rules as the judges of the appellate court may adopt, consistent with the rights of the petitioner and the parties to the case.”

       “[Practice Book] § 895. [control of judicial proceedings]— exclusion OP the public (a) Upon motion of the prosecuting authority or of the defendant, or upon his own motion, the judicial authority may, when constitutionally permissible, order that the public, which may include the news media, be excluded from any portion of a proceeding when there is a substantial likelihood that the presence of the public, including the news media, would unduly inhibit any testimony, or endanger the safety of any witness, or interfere with the defendant’s right to a fair trial or when exclusion is required by statute. In jury trials, the probability of publication of the evidence or of any argument adduced at a hearing outside the presence of the jury shall be a sufficient reason for excluding the public, including the news media, from that portion of the trial, upon the ground of interference with the right to a fair trial. The time and date of any such order shall be entered by the court clerk in the court file together with such order. With the exception of orders concerning any session of court conducted pursuant to Gen. Stat. §§ 46b-ll, 46b-49, 46b-122, 54-76h or any other provision of the general statutes under which the court is authorized to close proceedings, no order shall be effective until seventy-two hours after it has been issued.
      “(b) With the exception of orders concerning any session of court conducted pursuant to Gen. Stat. §§ 46b-ll, 46b-49, 46b-122, 54-76h or any other provision of the general statutes under which the court is authorized to close proceedings, any person affected by a court order issued pursuant to paragraph (a) shall have the right to appeal the order within seventy-two hours of its issuance by filing a petition for review with the appellate court pursuant to the appellate court rules. (See Gen. Stat. § 51-164x.)”

       Because the Supreme Court analyzed the issue of the reviewability of a waiver of the statutory right to an expedited appeal under the Evans doctrine, we are compelled to do the same. Subsequent to State v. Kelly, 208 Conn. 365, 371, 545 A.2d 1048 (1988), however, the Supreme Court adopted this court’s approach to reviewing Eva,ns claims. State v. Bailey, 209 Conn. 322, 329-30 n.4, 551 A.2d 1206 (1988).
      We also note that in State v. Smith, 209 Conn. 423, 425 n.3, 551 A.2d 742 (1988), the Supreme Court alluded to whether “the ruling in Evans continues to serve the limited purpose for which it was intended.”


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    Herbert C. Hallas et al. v. Freedom of Information Commission et al.
    (7161)
    Dupont, C. J., Daly and Jacobson, Js.
    Argued March 2
    decision released May 2, 1989

      Mary Katz Moule, pro se, with whom, on the brief, was Herbert C. Hallas, pro se, the appellants (plaintiffs).

      Constance L. Chambers, for the appellee (named defendant).

      Timothy S. Fisher, with whom, on the brief, was Lori R. Wilson, for the appellee (defendant Robinson & Cole).
   Daly, J.

The plaintiffs, Herbert C. Hallas and Mary Katz Moule, appeal from the judgment of the trial court dismissing their appeal from a final ruling of the defendant freedom of information commission (FOIC). The sole question for our review is whether the trial court erred in concluding that the FOIC acted legally in determining that the defendant Robinson and Cole, in its capacity as bond counsel for the town of Windsor, is not a “public agency” within the meaning of General Statutes § l-18a (a). We find no error.

The trial court found the following facts. The plaintiffs maintain law offices in the town of Simsbury. The defendant Robinson and Cole is a law firm located in the city of Hartford, and has served as bond counsel for the town of Windsor since 1967. The plaintiffs, by way of a letter dated February 12, 1985, requested Robinson and Cole to make available for their inspection specific public records relating to bonds and notes issued by the town of Windsor from 1966 to 1983 and kept on file with the firm. Robinson and Cole refused to comply with the plaintiffs’-request on the grounds that, (1) certain documents were protected from disclosure because of the attorney-client privilege, (2) the firm was not the proper place to make their request, and (3) the documents were not public records. The plaintiffs appealed to the FOIC.

The plaintiffs maintained that Robinson and Cole, in its capacity as bond counsel, was a “public agency” created by government under General Statutes § 7-373. On May 17, 1985, a hearing was held before the FOIC hearing officer on the stipulated issue of whether Robinson and Cole, acting in the capacity of bond counsel for the town of Windsor, was a public agency and therefore subject to the jurisdiction of the FOIC. On July 25,1985, the hearing officer issued findings of fact and recommended that the complaint be dismissed because the law firm was not a public agency within the meaning of General Statutes § l-18a (a). Both parties argued the matter before the FOIC on October 23, 1985, and the FOIC ultimately accepted the report of the hearing officer and dismissed the complaint. The plaintiffs then appealed to the Superior Court pursuant to General Statutes § 4-183. The trial court determined that Robinson and Cole was not a public agency or the functional equivalent thereof as determined by the criteria set forth in Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 436 A.2d 266 (1980), and sustained the action of the FOIC. This appeal ensued.

General Statutes § 4-183 (g) sets forth the scope of judicial review of the FOIC’s decision. Our review of the trial court’s decision sustaining the action of the commission is limited to a determination of whether “the agency acted illegally, arbitrarily or in abuse of its discretion and whether its decision was supported by the evidence.” Board of Trustees v. Freedom of Information Commission, supra, 548-49; see also Billings v. Commission on Human Rights & Opportunities, 18 Conn. App. 241, 243-44, 557 A.2d 147 (1989).

The Freedom of Information Act (FOIA); General Statutes §§ 1-7 through l-21k; provides for disclosure to the public of the public records of public agencies. General Statutes § 1-19 (a). General Statutes § l-18a (a) defines “public agency” as, inter alia, any official of any town.

In Board of Trustees v. Freedom of Information Commission, supra, our Supreme Court addressed the question whether Woodstock Academy, a school established by special corporate charter for the purpose of providing educational services for the children of the town of Woodstock and its vicinity, was a public agency within the meaning of § l-18a (a). In holding that the institution was a “functional equivalent” of a public agency for the purpose of disclosure, the court adopted the test employed by the federal courts for making such a determination. The “functional equivalent” test is comprised of four criteria: (1) whether the entity performs a governmental function; (2) the level of gover-mental funding; (3) the extent of governmental involvement or regulation; and (4) whether the entity was created by the government. Board of Trustees v. Freedom of Information Commission, supra, 554. The court concluded that Woodstock Academy met all four criteria and thus, was the functional equivalent of a public agency for the purposes of FOIA disclosure.

“A case by case application of the factors ... is best suited to ensure that the general rule of disclosure underlying this state’s FOIA is not undermined by nominal appellations which obscure functional realities.” Id., 555-56. Accordingly, we turn to an application of the functional equivalence test to the facts of this case in order to determine whether the criteria have been met. Unless all four factors are present, the agency does not meet the test and cannot be considered a public agency. Compare Public Citizen Health Research Group v. Department of Health, Education, & Welfare, 449 F. Sup. 937, 941 (D.D.C. 1978) (professional standards review organization meets the functional equivalence test because it is financed by the United States, is a creature of statute, performs an executive, i.e., decision making function and operates under direct, pervasive, continuous regulatory control) with Forsham v. Harris, 445 U.S. 169, 170-80, 100 S. Ct. 978, 63 L. Ed. 2d 293 (1980) (federal funding without substantial degree of federal supervision insufficient to make federal grantee fall within federal FOIA).

We first examine the extent of government regulation of bond counsel. The plaintiffs and the defendant Robinson and Cole agree that the law firm is regulated both by the rules of practice for attorneys in this state; General Statutes § 51-80 through § 51-94; and the federal fraud and disclosure provisions for the sale of securities under § 17 of the Securities Act of 1933.15 U.S.C. § 77q. The plaintiffs argue, however, that these statutory provisions constitute the high level of government regulation necessary to meet the third facet of the functional equivalence test. We agree with the trial court that the regulation prong of the test does not pertain to the general regulation of a profession but rather applies to specific government regulation of the function of the agency. General Statutes § 7-373 is the only section in chapter 109 that mentions bond counsel. That statute requires, inter alia, that any town issuing bonds designate a bank or trust company to certify the issue. In addition, the certification must state the name of the attorney who rendered the opinion approving the legality of the issue.

The function of bond counsel is to provide an expert and objective legal opinion with respect to the validity of bonds to be used by prospective investors. See “The Function and Professional Responsibilities of Bond Counsel,” 16 Urban Lawyer 3, 489, 491 (1984). We conclude that § 7-373 does not regulate the function of bond counsel. The mere mention of bond counsel in the statute does not rise to the level of government regulation found to satisfy the third facet of the test in either Board of Trustees v. Freedom of Information Commission, supra, or Public Citizen Health Research Group v. Department of Health, Education, & Welfare, supra. Because bond counsel do not operate under direct, pervasive or continuous regulatory control, they do not constitute the functional equivalent of a public agency. Thus, we conclude that the FOIC decision that Robinson and Cole, in its capacity as bond counsel for the town of Windsor, was not a public agency is amply supported by the evidence.

There is no error.

In this opinion the other judges concurred.

       General Statutes § l-18a (a) provides: “ ‘Public agency’ or ‘agency’ means any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official,- and also includes any judicial office, official or body or committee thereof but only in respect to its or their administrative functions.”

       “[General Statutes] Sec. 7-373. banks to certify municipal bonds, disbursing agent. Each town, city, borough, school district, fire district and sewer district and each other municipal corporation and association having a population of less than ninety thousand inhabitants as determined by the federal census last taken, which issues bonds pursuant to its general or special powers, shall, for each such issue, designate a bank or trust company incorporated under the laws of this or any other state, or of the United States, to certify such issue and shall also designate a bank or trust company incorporated under the laws of this or any other state, or of the United States, to act as disbursing agent in the payment of principal and interest on such bonds. Such certification shall be endorsed upon each bond and shall identify such bond as being one of the particular issue described in such bond, shall certify the genuineness of the signatures and seal thereto affixed, shall state the name of the attorney at law who has rendered an opinion approving the legality of such particular issue and shall be signed by an authorized officer or official of such bank or trust company.”

       In view of our finding with respect to the regulation prong of the test, it is unnecessary to consider the remaining criteria.


text:
    State of Connecticut v. Edward DeMayo
    (5813)
    Dupont, C. J., O’Connell and Foti, Js.
    Argued December 14, 1988
    decision released May 2, 1989

      Richard Emanuel, for the appellant (defendant).

      Harry Weller, deputy assistant state’s attorney, with whom were Mary Elizabeth Baran, deputy assistant state’s attorney, and, on the brief, Christine Marsch-ing, law student intern, for the appellee (state).
   Foti, J.

The defendant appeals from judgment of conviction, rendered after a jury trial, of two counts of risk of injury to a child in violation of General Statutes § 53-21 and two counts of sexual assault in the fourth degree in violation of General Statutes § 53a-73 (a) (1) (A). On appeal, the defendant claims for the first time three violations of his constitutional rights: (1) his state and federal constitutional rights not to be twice placed in jeopardy for the same offense were violated by the trial court’s imposition of multiple punishments for the same offense; (2) his constitutional right to a fair trial was violated by the prosecutor’s remarks during final argument; and (3) the trial court’s sequestration order denied him his rights to due process, effective assistance of counsel, compulsory process and to present a defense. We find that the record in this case does not support the defendant’s claim that he was deprived of any constitutional rights.

This case involves allegations made by two minor victims that the defendant sexually abused them. The jury could reasonably have found the following facts. R and K are siblings and live across the street from the defendant. The defendant had a workroom in his garage, and R and K visited him there a number of times.

R testified that in the fall of 1985, when she was seven years old, the defendant placed his hand down her pants and under her shirt on a number of occasions. On one of these occasions, the defendant placed his hand inside R’s pants and placed his finger in her “private parts.” The defendant cautioned R not to tell anyone about these events.

K, R’s older sister, testified that several times when she was thirteen years old, the defendant touched her breasts, buttocks and crotch. On one occasion, the defendant kissed K on the lips and put his tongue in her mouth. The defendant also asked K to touch him.

The defendant raises three claims of error on appeal that were not properly preserved at trial. See Practice Book § 4185. As to each, the defendant seeks review under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), and the plain error doctrine. Practice Book § 4185. We find the Supreme Court’s recent admonition to appellate counsel appropriate to this case. A “wholesale appellate reconstruction of the trial court proceedings does not serve the administration of justice. State v. Pelletier, 209 Conn. 564, 566-67, 552 A.2d 885 (1989); State v. Hinckley, 198 Conn. 77, 86-87, 502 A.2d 388 (1985). Appellate review of newly discovered issues cannot be guaranteed by couching every claim of error in the constitutional language of State v. Evans, supra, or the common law doctrine of plain error codified in Practice Book § 4185. Belated appellate scrutiny is warranted only for egregious errors that undermine the fairness of a trial and cast doubt on the integrity of the judicial process.” State v. Hull, 210 Conn. 481, 484-85, 556 A.2d 154 (1989).

We have reviewed the defendant’s claims of error and conclude that the record does not disclose that the defendant has been deprived of any fundamental constitutional right or a fair trial; State v. Evans, supra, 70; State v. Sergi, 7 Conn. App. 445, 448, 509 A.2d 56 (1986); or that any of the defendant’s claims involve a “ ‘truly extraordinary [situation], where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings’. . . .” State v. Phu Dinh Le, 17 Conn. App. 339, 342, 552 A.2d 448 (1989), quoting State v. Hinckley, supra, 87-88.

The defendant’s first claim is that the trial court’s imposition of multiple punishments for the crimes of sexual assault in the fourth degree and risk of injury to a child violated his rights under the double jeopardy clause of the fifth amendment to the federal constitution and under Connecticut law. In particular, the defendant claims that because the long form information described the manner in which the defendant committed the crime of risk of injury to a minor as “subjecting her to sexual contact,” the two crimes were “nominally” the same for double jeopardy purposes. Both the Supreme Court and this court have conclusively held that the imposition of multiple sentences for convictions of sexual assault and risk of injury to a child does not violate the double jeopardy clause because these crimes are not considered the “same offense” for the purpose of double jeopardy as “each require[s] proof of an element not required by the other . . . .” State v. Perruccio, 192 Conn. 154, 162, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984); see also State v. McCall, 187 Conn. 73, 91-92, 444 A.2d 896 (1982); State v. Davis, 13 Conn. App. 667, 671-72, 539 A.2d 150 (1988); State v. Trujillo, 12 Conn. App. 320, 335-36, 531 A.2d 142 (1987). The fact that the state has alleged that the same conduct constituted the charges does not alter this result. State v. Trujillo, supra; see also State v. Per-ruccio, supra, 154.

Because the defendant has not “clearly been deprived of a constitutional right”; State v. Evans, supra, 70; his first claim is not reviewable under Evans. See State v. Bailey, 209 Conn. 322, 332, 551 A.2d 1206 (1988); State v. Thurman, 10 Conn. App. 302, 306-307, 523 A.2d 891, cert. denied, 204 Conn, 805, 528 A.2d 1152 (1987); State v. Huff, 10 Conn. App. 330, 334, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987). Similarly, we find the defendant’s assertion that this claim is reviewable as plain error equally unavailing.

The defendant’s second unpreserved claim is that he was deprived of his state and federal rights to due process of law and a fair trial by certain remarks made by the prosecutor during closing argument. Evans review of alleged prosecutorial misconduct is reserved for those cases in which the prosecutor’s conduct manifested “an egregious pattern of blatant prejudicial misstatements”; State v. Hull, supra, 485; State v. Smith, 209 Conn. 423, 428, 551 A.2d 742 (1988); State v. Williams, 204 Conn. 523, 537, 529 A.2d 653 (1987); and has been denied in cases where the “ ‘ “claimed misconduct consisted of isolated and brief episodes, and did not reveal a pattern of conduct repeated throughout the trial.” . . . ’ ” State v. Smith, supra; State v. Williams, supra.

We have reviewed the record in this case and conclude that the prosecutor’s remarks did not rise to the level of a constitutional violation and, therefore, this claim does not merit full review under State v. Evans, supra. For similar reasons, we refuse to review this claim under the plain error doctrine.

The defendant’s final unpreserved claim of error merits little discussion. The defendant claims a multitude of constitutional violations resulting from the trial court’s sequestration order that in addition to requiring all witnesses, except the defendant, to remain outside the courtroom and not discuss the case, also precluded the defendant from discussing the case with potential witnesses. The defendant claims that this order precluded him from participating meaningfully in his own defense. We have reviewed the record in a limited way and conclude that the defendant’s claim is not “truly of constitutional proportions [but] is simply characterized as such by the defendant.” State v. Thurman, supra, 306; State v. Huff, supra, 334. Consequently, this claim is not reviewable under State v. Evans, supra. We reach this result after reviewing the circumstances of this case. See State v. Huff supra, 335.

Prior to trial, the court granted the state’s motion to sequester all witnesses from the courtroom. The order also precluded all witnesses, including the defendant, from speaking about the case to each other. Although this order included the defendant, the trial court did not prohibit the defendant’s attorney from conferring with witnesses. The defendant did not object to this order, but merely requested clarification as to whether the order pertained to him. During the course of the trial, the defendant did not request a modification of the sequestration order to allow him to confer with any particular witness.

We fail to see how a general sequestration order, which included the defendant, violated any of his constitutional rights, particularly in a case in which the defendant did not seek permission to talk to any witnesses during the course of the trial and does not argue any particular prejudice to his case. Any possible prejudice to the defendant would have undoubtedly been cured by the fact that the order did not encompass the defendant’s counsel. Under the circumstances of this case, we decline to review this claim under State v. Evans, supra. We are similarly unpersuaded that we should exercise our “principled appellate discretion” to review this claim under the plain error doctrine. The trial court’s sequestration order did not constitute a “manifest injustice to the defendant so as to impair the effectiveness and integrity of the trial.” State v. Huff, supra, 339.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53-21. injury or risk of injury to, or impairing morals OF, children. Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       General Statutes § 53a-73a (a) (1) (A) provides: “A person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is (A) under fifteen years of age . . . .”

       The fifth amendment to the United States constitution provides that “[n]o person shall be . . . subject for the same offense to be twice put in jeopardy of life or limb . . . .”
      Although the Connecticut constitution contains no specific double jeopardy provision, “ ‘the due process guarantees of article first, § 8, have been held to include such a protection.’ ” State v. Van Sant, 198 Conn. 369, 375 n.5, 503 A.2d 557 (1986), quoting State v. Rawls, 198 Conn. 111, 113 n.3, 502 A.2d 374 (1985).

       The defendant made one objection during the state’s closing argument that related to one particular comment by the prosecutor. The defendant did not take an exception, request a curative instruction, or move for a mistrial.


author: Spallone, J.

text:
    State of Connecticut v. Michael Drummy State of Connecticut v. Suzanne Abrams State of Connecticut v. John Sevanick State of Connecticut v. Ann Sorenson
    (5875)
    Spallone, Stoughton and Norcott, Js.

      Argued October 19, 1988
    decision released May 2, 1989

      Elizabeth A. Curry, with whom, on the brief, was Susan Meredith, for the appellants (defendants).

      John O Meara, deputy assistant state’s attorney, with whom, on the brief, was Elpedio N. Vitale, for the appellee (state).

      Anne Simon and Peter Weiss filed a brief for the Center for Constitutional Rights et al. as amici curiae.
   Spallone, J.

The defendants are appealing their convictions, after a jury trial, of the crime of criminal trespass in the first degree under General Statutes § 53a-107 (a) (l).

From the evidence introduced at trial, the jury could reasonably have found the following facts. On October 4,1986, United States Army Staff Sergeant Betty A. Hill was stationed at the armed forces recruiting office located at 157 Orange Street in New Haven. Hill’s primary duty at the time was to interview and recruit people to enlist in the United States Army. She normally worked from 8 a.m. to 5 p.m. daily. The premises were open one Saturday each month to accommodate prospective recruits who were unable to come in during the week. During working hours, the recruiting station was open to the general public. On Saturday, October 4, 1986, Hill arrived at the recruiting facility sometime between 11 and 11:30 a.m. Upon her arrival, she observed a group of people marching on the sidewalk outside the office. She entered the office. A short time later, she left on an errand, leaving the door unlocked. Upon her return, she discovered the defendants, Michael Drummy, Ann Sorenson, John Sevanick and Suzanne Abrams, inside the recruiting station. While Hill was away, the defendants, carrying a large wooden cross, had entered the facility, where they began to sing and pray. Hill observed the defendant Sorenson tearing up army recruiting posters. Sorenson had taken these posters down from the wall and replaced them with others. Hill asked the defendant Abrams, who was kneeling in front of the doorway to the facility, to leave. Abrams responded that the group “couldn’t leave.”

Failing to persuade the group to leave, Hill called the police. Officer Hildon Wright of the New Haven police department was the first to arrive, followed by Officer Theodis Fenn. Both officers saw a group of demonstrators outside the recruiting office and, upon entering, discovered the four defendants inside. After ascertaining that Hill wanted the defendants to leave, the officers asked them to do so. They refused. Wright then contacted his supervisor, Sergeant Edward Clough. When Clough arrived at the scene, he and the other officers met with Hill outside the premises. Hill explained that she was in charge of the recruiting office and that she wanted the defendants to leave. Hill and the officers entered the facility, and Clough identified himself to the defendants and explained that Hill wanted them to leave. Clough also warned the defendants that if they did not leave they would be arrested. The defendants did not respond to Clough’s statements, but continued singing and praying. After a period of five to ten minutes, Clough again warned the defendants that if they did not leave the premises they would be subject to arrest. The defendants again failed to respond. Thereafter, they were arrested.

The defendants, appearing pro se, were tried to a jury and convicted of the crime of criminal trespass in the first degree in violation of General Statutes § 53a-107 (a) (l). Upon conviction, each defendant was sentenced to a term of four months, execution of sentence suspended, and placed on probation for two years. This appeal, by all four defendants, followed.

The defendants claim that the trial court erred (1) in ruling that their proffered evidence regarding the defense of necessity was insufficient as a matter of law, (2) in unduly restricting their ability to present a defense, (3) in improperly instructing the jury on the charge of criminal trespass in the first degree, and (4) in making reference to the possibility of later appellate review of evidentiary rulings. We find these claims of error to be without merit.

The trial court correctly ruled that the defendants’ proffered evidence regarding their proposed defense of necessity was insufficient as a matter of law. Prior to trial, the defendants filed a motion in limine with regard to their proposed defense of necessity and the admissibility of expert testimony on international law. The defendants sought an advance ruling as to whether they would be permitted to raise a defense of necessity and argue principles of international law as part of their defense. After reviewing the defendants’ motion and supporting memorandum, and having heard the defendants’ proffered evidence, the trial court initially denied the motion as being premature. Later, the court set aside its ruling and asked for further argument regarding the defense of necessity. Each defendant was permitted to present further extensive argument regarding the proposed defense of necessity and the applicability of international law. The defendants expressed their earnest belief that the policies of the United States with regard to the Republic of Nicaragua were in violation of international law. Essentially, the defendants argued that, if they did in fact commit a trespass at the recruiting station in New Haven, it was necessary in order to prevent the commission of “atrocities” in Nicaragua. The defendants also described other activities in which they had engaged in order to protest government policies regarding Nicaragua, asserting that these other efforts had proved “futile.”

After hearing arguments, the trial court ruled that a defense of necessity was inappropriate under the facts and circumstances of this case. The court determined that the defendants’ evidence, even if believed, failed to demonstrate any causal relationship between their commission of the crime of trespass at the recruiting office in New Haven and the prevention of perceived harms. Accordingly, the court concluded that the defense of necessity was inapplicable under the facts and circumstances of this case and that any evidence relating to the defense offered by the defendants would be irrelevant. We agree with the trial court.

Our statutory definition of the defense of justification, General Statutes §§ 53a-16 and 53a-17, does not include “necessity” as a recognized defense to a criminal charge. Indeed, our Supreme Court has indicated that the defense of necessity has no statutory basis in Connecticut. See In re Juvenile Appeal, 184 Conn. 157, 163-64, 439 A.2d 958 (1981) (noting that, although statutes in other jurisdictions and the model penal code explicitly define necessity, “[tjhere appears to be no statutory definition in Connecticut for the defense of necessity”).

At common law, the defense of necessity has been recognized under certain narrowly defined circumstances. See, e.g., United States v. The Diana, 74 U.S. (7 Wall.) 354, 19 L. Ed. 165 (1869). The defense rests upon the proposition that “there may be circumstances where the value protected by the law is, as a matter of public policy, eclipsed by a superceding value which makes it inappropriate and unjust to apply the usual criminal rule.” Commonwealth v. Brugmann, 13 Mass. App. 373, 377, 433 N.E.2d 457 (1982); see also W. LaFave & A. Scott, Substantive Criminal Law (1986), § 5.4, p. 629. The defense of necessity “traditionally covered the situation where physical forces beyond the actor’s control rendered illegal conduct the lesser of two evils.” United States v. Bailey, 444 U.S. 394, 410, 100 S. Ct. 624, 62 L. Ed. 2d 575 (1980). The defense, however, “deals with obvious and generally recognized harms, not with those which are debatable and, indeed, the subject of legislation and government regulation.” Commonwealth v. Averill, 12 Mass. App. 260, 262-63, 423 N.E.2d 6 (1981), citing State v. Dorsey, 118 N.H. 844, 846-47, 395 A.2d 855 (1978).

Connecticut case law is devoid of any definition of the defense of necessity. Other jurisdictions recognizing the defense of necessity generally require a showing by the defendant: “(a) that there is no third and legal alternative available, (b) that the harm to be prevented [was] imminent, and (c) that a direct causal relationship [may] be reasonably anticipated to exist between defendant’s action and the avoidance of harm.” United States v. Seward, 687 F.2d 1270, 1275 (10th Cir. 1982), cert. denied, 459 U.S. 1147, 103 S. Ct. 789, 74 L. Ed. 2d 995 (1983); State v. Marley, 54 Haw. 450, 472, 509 P.2d 1095 (1973). In this case, the trial court determined that other legal alternatives were available to the defendants and that the defendants’ evidence, even if believed, failed to establish a causal relationship between their commission of the crime of trespass at the recruiting station in New Haven and the prevention of the perceived harms.

The defendants contend that the court erred in refusing to permit them to present evidence to the jury regarding a defense of necessity and in refusing to instruct the jury regarding that defense. This claim is without merit. Where an offer of proof is made with respect to a defense and it is clear from the offer of proof that the defense is insufficient as a matter of law, the trial court may properly refuse to permit evidence of the defense to be submitted to the jury. See United States v. Bailey, supra, 416; State v. Valeriano, 191 Conn. 659, 663, 468 A.2d 936 (1983), cert. denied, 466 U.S. 974, 104 S. Ct. 2351, 80 L. Ed. 2d 824 (1984). In this case, the evidence offered by the defendants, even if believed, was insufficient as a matter of law to establish a defense of necessity. The trial court properly excluded from the jury’s consideration evidence offered by the defendants concerning necessity, including'information on principles of international law that was offered as part of the defense of necessity.

The defendants next argue that the trial court, by excluding evidence of their mental states, prevented them from asserting a valid defense to the charges against them. This claim, too, is without merit. Our review of the transcript and the trial court’s charge to the jury reveals that the court imposed no restriction that would prevent the defendants from presenting relevant evidence supporting any valid defenses they might raise. The testimony excluded by the court concerned the “license” or “privilege” relied on by the defendants, i.e., that they were acting out of a duty or necessity to prevent violations of international law. Because the court had previously ruled that this defense was inappropriate, evidence that was relevant only for the purpose of establishing the defense was properly excluded. We will not intrude on the trial court’s exercise of its broad discretion when ruling on questions of relevancy unless a clear abuse of discretion is manifest. State v. DeForge, 194 Conn. 392, 396, 480 A.2d 547 (1984). No such abuse is shown in the record.

In their third claim of error, the defendants challenge the trial court’s instructions to the jury on the charge of criminal trespass in the first degree. The defendants argue that the court misrepresented the requirements for conviction under General Statutes §§ 53a-107 and 53a-110 by instructing the jury that the defendants could “reasonably or passionately” believe they were “privileged” to remain in the recruitment center and still be found guilty of criminal trespass. “A party is not entitled to a charge which is beyond criticism in every particular. State v. Harman, 198 Conn. 124, 134, 502 A.2d 381 (1985). The charge should not be ‘critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case.’ State v. Shindell, 195 Conn. 128, 143, 486 A.2d 637 (1985). [The] court must determine whether in light of the charge as a whole it is reasonably possible that the jury was misled. State v. Jones, 193 Conn. 70, 90, 475 A.2d 1087 (1984).” State v. Laracuente, 205 Conn. 515, 524, 534 A.2d 882 (1987), cert. denied U.S. , 108 S. Ct. 1598, 99 L. Ed. 2d 913 (1988).

Our reading of the trial court’s charge to the jury discloses no error on the part of the trial court. The charge, taken as a whole, fully instructs the jury regarding the elements constituting the crimes charged and fully explains the legitimate statutory defense available. We conclude that it was not reasonably possible that the jury was misled by the challenged instructions.

The defendants’ final claim is that the trial court erred when it made reference to the availability of appellate review of its evidentiary rulings. Immediately following the defendant Drummy’s closing argument, the court remarked to the jury that there was certain evidence that the defendants had been precluded from presenting due to the court’s rulings. The court explained to the jury that any mistaken rulings it had made could be addressed in a different tribunal. The defendant failed to object to that remark. This court need not consider A claim of error unless it was distinctly raised at trial. Practice Book § 4185. We decline the defendants’ invitation to review their claim under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), because the defendants have failed to articulate a claim, adequately supported by the record, that they were clearly deprived of a fundamental constitutional right and a fair trial. Id.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53a-107. criminal trespass in the first degree: class a misdemeanor, (a) A person is guilty of criminal trespass in the first degree when: (1) Knowing that he is not licensed or privileged to do so, such person enters or remains in a building or any other premises after an order to leave or not to enter personally communicated to such person by the owner of the premises or other authorized person;

        or (2) such person enters or remains in a building or any other premises in violation of a restraining order issued by the superior court.
      “(b) Criminal trespass in the first degree is a class A misdemeanor.”

       The defendant Ann Sorenson was also charged with and acquitted of the crime of criminal mischief in the third degree in violation of General Statutes § 53a-117.

       “[General Statutes] Sec. 53a-16. justification as defense. In any prosecution for an offense, justification, as defined in sections 53a-17 to 53a-23, inclusive, shall be a defense.”

       “[General Statutes] Sec. 53a-17. conduct required or authorized by law or judicial decree. Unless inconsistent with any provision of this chapter defining justifiable use of physical force, or with any other provision of law, conduct which would otherwise constitute an offense is justifiable when such conduct is required or authorized by a provision of law or by a judicial decree, including but not limited to (1) laws defining duties and functions of public servants, (2) laws defining duties of private citizens to assist public servants in the performance of certain of their functions, (3) laws governing the execution of legal process, (4) laws governing the military services and the conduct of war, and (5) judgments and orders of courts.”


author: Per Curiam.

text:
    Genevieve Porter v. Town of East Hampton et al.
    (7019)
    Borden, O’Connell and Foti, Js.
    Argued March 14
    decision released May 2, 1989

      Samuel B. Feldman, with whom, on the brief, was Robert K. Webber, for the appellant (plaintiff).

      Patricia A. Horgan, for the appellees (defendants).
   Per Curiam.

The East Hampton planning and zoning commission amended that town’s zoning regulations and the plaintiff attempted to appeal the resulting change of zone to the town zoning board of appeals. When the zoning board of appeals refused to schedule a hearing on the attempted appeal, the plaintiff sought a writ of mandamus to compel the board to hold a hearing. The trial court dismissed the action for lack of subject matter jurisdiction. We find no error.

Local planning and zoning commissions have both administrative and legislative powers. When establishing zones, a local zoning authority is acting within its legislative capacity. Parks v. Planning & Zoning Commission, 176 Conn. 657, 660, 425 A.2d 100 (1979). Local zoning boards of appeal have no authority to hear appeals from planning and zoning commissions when the latter are acting within their legislative capacity. See General Statutes § 8-6.

“Mandamus is an extraordinary remedy designed to enforce the performance of a plain positive duty, and, as such, the writ will properly issue only when the person against whom it is directed is under a clear legal obligation to perform the act compelled.” Juliano v. Farrell, 196 Conn. 283, 286, 492 A.2d 187 (1985). Because the zoning board of appeals lacked authority to hold the hearing sought, the trial court was correct in dismissing the plaintiffs petition for a writ of mandamus.

There is no error.


text:
    Lorraine S. Koehm v. Ida Kuhn et al.
    (6620)
    Spallone, O’Connell and Foti, Js.
    Argued March 16
    decision released May 9, 1989

      Mary Ann Barile, with whom, on the brief, was Raphael Korjf, for the appellants-appellees (named defendant et al.).

      Mathew D. Newman, with whom, on the brief, was NoelR: Newman, for the appellee-appellant (plaintiff).
   Per Curiam.

The defendants, Ida Kuhn and Anthony Caltabiano, appeal the judgment rendered for the plaintiff, Lorraine S. Koehm, in an action for damages and release of mortgage brought pursuant to General Statutes § 49-8 (c). The plaintiff has cross appealed.

The defendants claim that the trial court erred (1) in finding that the amount due in satisfaction of the debt was delivered to the defendant, (2) in finding that the plaintiffs met the notice requirements of General Statutes § 49-8 (c), (3) in finding that the restrictive endorsement placed on the check by the plaintiff effected an accord and satisfaction when the defendants cashed the check, (4) in failing to find that’ General Statutes § 49-8 superseded the holding in Scripture v. Johnson, 3 Conn. 211 (1819), and (5) in awarding damages. The plaintiff in her cross appeal claims that the trial court erred in not awarding her counsel fees under General Statutes § 49-8 (c). We find no error on the appeal or on the cross appeal.

The trial court filed a complete and legally sound memorandum of decision incorporating the facts found and setting forth legal conclusions made in conformity with applicable law. The trial court’s decision so completely articulates the issues involved and so adequately explains the legal basis for its conclusions that it may be referred to for a detailed discussion of the facts and applicable law. See Faith Center, Inc. v. Hartford, 192 Conn. 434, 436, 472 A.2d 16, cert. denied, 469 U.S. 1018, 105 S. Ct. 432, 83 L. Ed. 2d 359 (1984); Hinchliffe v. American Motors Corporation, 192 Conn. 252, 253, 470 A.2d 1216 (1984); Cantor v. Department of Income Maintenance, 12 Conn. App. 435, 438, 531 A.2d 606 (1987).

Accordingly, the trial court’s memorandum of decision, reported in Koehm v. Kuhn, 41 Conn. Sup. 130, 558 A.2d 1042 (1987), should be referred to for a detailed discussion of the facts and legal conclusions in the case.

There is no error.

       Laurence V. Parnoff, one of the defendants in the trial court, has not taken an appeal. As used in this opinion, “defendants” refers to Kuhn and Caltabiano.

       This claim is not reviewable because the defendants failed to raise it in the trial court. See Practice Book § 4185.

       The defendants raised two additional issues. Those issues relate, however, to the defendant Parnoff s counterclaim and therefore cannot be raised in this appeal.

       General Statutes § 49-8 (c) provides: “If the mortgagee or plaintiff or his attorney, as the case may be, fails to execute and deliver a release after thirty days from the date of a written request for a release of such encumbrance sent to him to his last-known address by registered mail or by certified mail, postage prepaid, return receipt requested, the mortgagee or plaintiff shall be liable for damages to any person aggrieved at the rate of one hundred dollars for each week after the expiration of such thirty days but not exceeding in the whole the sum of five thousand dollars or in an amount equal to the loss sustained by such aggrieved person as a result of such failure to execute and deliver a release, whichever is greater.”


author: O’Connell, J.

text:
    Statewide Grievance Committee v. Daniel V. Presnick
    (6232)
    Borden, O'Connell and Stoughton, Js.

      Argued January 3
    decision released May 9, 1989

      Daniel V. Presnick, pro se, the appellant (defendant).

      Clinton L. A. Wright, for the appellee (plaintiff).
   O’Connell, J.

The defendant attorney appeals from a judgment finding him in violation of the code of professional conduct and imposing sanctions therefor. This matter came to the trial court on a presentment from the statewide grievance committee alleging four separate and unrelated episodes of misconduct. The court dismissed two counts for insufficient evidence and found the defendant in violation of disciplinary regulations of the code of professional conduct on the remaining counts. It imposed a reprimand for the first violation and a one year suspension from the practice of law for the second violation. We find no error.

I

Facts

The following facts are pertinent to this appeal. The defendant has been engaged in the practice of law as a member of the bar of this state since October 4,1977. He maintains an office in the city of New Haven.

A

DEPARTMENT OF CHILDREN AND YOUTH SERVICES COMPLAINT

The scenario resulting in the reprimand arose out of a dispute between the defendant and the department of children and youth services (DCYS). In the fall of 1985, the Hamden school department contacted DCYS concerning a possible child abuse situation. The mother of the children involved engaged the defendant to represent her. The matter proceeded without resolution until DCYS filed a neglect petition with the Superior Court for Juvenile Matters in New Haven. See Practice Book § 1038 et seq. The defendant took a strong position that DCYS was infringing on the parent-child relationship. The thrust of his argument was that DCYS should be abolished and that its workers should be prosecuted.

On October 4, 1985, a hearing on the neglect petition was scheduled to be held in a courtroom on the third floor of the New Haven courthouse. Prior to the hearing, the DCYS workers and other concerned officials met with the defendant in a conference room adjacent to the juvenile courtroom. This conference was an effort to resolve the matter without trial. The defendant became quite agitated and appeared to lose control of himself while directing loud and abusive remarks to the DCYS personnel. He accused one DCYS worker of being a child molester and characterized DCYS as a nazi or neo-nazi organization. The defendant’s boisterous and tumultuous conduct brought the court officer from the adjacent court area to the conference room to inquire whether his services were required to quell the uproar.

Not surprisingly, the matter was not settled in the conference room and the parties ultimately repaired to the courtroom where a trial date was set. Upon leaving the courtroom, the defendant resumed ranting and raving, waving his arms and shouting as he followed the group down the stairs. This attracted the attention of onlookers and put at least one DCYS worker in fear.

The trial court found that the defendant’s words and actions were designed to intimidate the DCYS workers and their attorney, thereby thwarting the judicial process and inhibiting the orderly functioning of the court. As a result, it concluded that this conduct violated disciplinary rule 1-102 (A) (6), which provides that a lawyer shall not “[ejngage in any conduct that adversely reflects on his fitness to practice law.” As a sanction, the court reprimanded the defendant and issued a warning that “if he engages in such conduct in the future, appropriate disciplinary action will be forthcoming.”

B

REAL ESTATE COMPLAINT

The scenario leading to the defendant’s suspension from practice began when he was retained to represent a client of advanced age and doubtful mental competence in a municipal tax foreclosure action. A judgment of foreclosure by sale was rendered and January 11, 1986, was set as the sale date. The property was appraised at $68,000 in the foreclosure action. Notwithstanding the $68,000 appraisal, the defendant’s aged client decided to sell the property for only $18,000.

Upon learning of his client’s desire to sell his house at this bargain price, the defendant contrived to purchase the property. He contacted his brother, a Florida lawyer, who agreed to form a corporation in that state for the purpose of acquiring the property. In addition, the defendant also contacted a Connecticut lawyer to perform certain duties in connection with the sale. That lawyer was not called in until after the agreement of sale had been executed. Moreover, he never met the client, saw the contract of sale, or knew anything about the purchaser, nor did he consider that an attorney-client relationship existed between him and the defendant’s client. Thus, it was obvious to the trial court that this Connecticut lawyer was brought into the picture solely for the purpose of passing checks through his trustee account to create a facade that he was the client’s attorney, rather than to act as independent counsel for the defendant’s client.

On January 10,1986, the defendant’s client died. The client’s estate refused to consummate the sale, presumably because of the $50,000 discrepancy between the appraisal value and the sale price. In December, 1986, the estate sold the property for $113,000 in an arm’s length transaction.

The court found that the defendant’s dealings with his client violated disciplinary rule 1-102 (A) (4), which provides that a lawyer shall not “[ejngage in conduct involving dishonesty, fraud, deceit or misrepresentation.” The court also found that he violated disciplinary rule 5-104 (A), which provides that “[a] lawyer shall not enter into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise his professional judgment therein for the protection of the client unless the client has consented after full disclosure.” Consequently, the court suspended the defendant from practicing law for one year.

II

Constitutionality

The defendant’s first claim is that the trial court erred in denying his motion to dismiss the presentment on grounds that the court lacked jurisdiction. The defendant’s lengthy and tautological argument that the grievance committee is a constitutionally defective body, and in fact is a constitutionally defective court itself, misses the mark. Whether or not the grievance committee might constitutionally discipline attorneys is irrelevant to his situation. He was not disciplined by the grievance committee. His suspension from practice and reprimand were imposed by the Superior Court and not by the grievance committee.

It is elementary that “[t]he Superior Court possesses inherent authority to regulate attorney conduct and to discipline members of the bar.” Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 523, 461 A.2d 938 (1983); Grievance Committee v. Goldfarb, 9 Conn. App. 464, 470, 519 A.2d 624, cert. denied, 203 Conn. 802, 522 A.2d 292 (1987); see also General Statutes § 51-84. The only action taken by the statewide grievance committee was to refer the matter to the Superior Court, which then proceeded in accordance with its inherent and statutory powers. Hence, the defendant’s constitutional challenge to the jurisdiction of the statewide grievance committee is meritless.

III

Corrupt Motive or Evil Intent

The defendant next claims that the trial court erred in imposing a suspension from practice without a finding that the defendant acted with a corrupt motive or with an evil intent. The defendant misconstrues three Connecticut cases as holding that a corrupt motive or evil intent is a prerequisite to suspension. The most that can be said is that these cases recognize the principle that attorneys who act with corrupt motives or evil intent should be disciplined, and that attorneys who act in good faith should not be disciplined. We agree with this principle in general, but we do not find that it mandates finding a corrupt motive or an evil intent as a prerequisite for disciplining an attorney by suspending him from the practice of law.

Here, the defendant was charged with specific violations of the disciplinary rules of the code of professional conduct, which resulted in his suspension. While the trial court may consider evidence of good motives and good faith in reaching its conclusions, neither of the disciplinary rules involved requires a finding of corrupt motive or bad faith. After a full evidentiary hearing, the court found to have been established by clear and convincing proof (see part IV, infra) that the defendant had violated each of the specified disciplinary rules. Nothing further was required to impose appropriate disciplinary action, including suspension from practice. There is no merit to this claim of error.

IV

Standard of Proof

In his third claim of error, the defendant argues that while a clear and convincing standard of proof furnishes a sufficient basis to support the reprimand, a suspension from practice requires proof beyond a reasonable doubt. Nevertheless, he fails to supply any precedent for this bifurcation. Since disciplinary matters are neither criminal proceedings nor civil proceedings; In re Application of Pagano, 207 Conn. 336, 339, 541 A.2d 104 (1988); it is logical that a question of the standard of proof should arise.

The standard of proof applicable to disciplining lawyers is a question of first impression in this state. In Council on Probate Judicial Conduct re: James H. Kin-sella, 193 Conn. 180, 476 A.2d 1041 (1984), however, a case of alleged misconduct of a judge, our Supreme Court elected to follow the vast majority of jurisdictions that have concluded that the proper standard for disciplinary proceedings involving judges is clear and convincing proof. Id., 190-91; see also American Bar Association Standards Relating to Judicial Discipline (1978) § 7.10. We see no reason why this same standard should not apply to disciplining lawyers, regardless of the ultimate sanction imposed. See ABA-BNA Lawyers’ Manual on Professional Conduct (1984) § 101:201. We find no merit in the defendant’s claim of a bifurcated standard.

V

Free Speech

The defendant claims that his statements to the DCYS workers were protected by the constitutional guarantee of free speech. He argues that “[tjhis court must hold that the Grievance Court [sic] and the trial court has [sic] no jurisdiction to issue reprimand [sic] concerning the public statements of an attorney.” The defendant, however, does not cite any authority for this surprising declaration, nor are we aware of any. Moreover, we are not aware of any reason or policy for granting attorneys such carte blanche exemption from the laws limiting speech that are applicable to all members of our society.

We look to attorneys to be leading citizens of their communities, not as persons exempt from the norms of candor and honesty which we expect of other citizens. “The admirable and effective public and civic accomplishments of the overwhelming majority of the bar can be too easily impugned by the malfeasance and derelictions of one member of the bar. No amount of professional public relations can blot out the image of a dishonest lawyer.” 1 W. Moller & W. Horton, Connecticut Practice Book Annot. (1988), p. 93.

It is irrelevant that the conduct in question, although in a courthouse, was not in the presence of the court. It is firmly established that misconduct of an attorney, whether it be in the practice of the profession or in matters dehors the practice of law, justifies discipline, including exclusion from the bar. In re Application of Courtney, 162 Conn. 518, 523, 294 A.2d 569 (1972); Grievance Committee v. Broder, 112 Conn. 269, 274, 152 A. 292 (1930). The admission of an attorney to the practice of law, “ ‘is upon the implied condition that his continued enjoyment of the right conferred is dependent upon his remaining a fit and safe person to exercise it, so that when he, by misconduct in any capacity, discloses that he has become or is an unfit or unsafe person to be entrusted with the responsibilities and obligations of an attorney, his right to continue in the enjoyment of his professional privilege may and ought to be declared forfeited. As important as it is that an attorney be competent to deal with the oftentimes intricate matters which may be entrusted to him, it is infinitely more so that he be upright and trustworthy.’ ” (Emphasis added.) In re Application of Pagano, supra, 345, quoting State v. Peck, 88 Conn. 447, 450-51, 91 A. 274 (1914).

Here, the defendant’s conduct and comments did not take place in the presence of the court. Rather, it was in a conference room and then in the hall and stairway of a courthouse that he appeared to be out of control, following and shouting at the DCYS workers that they were “nazi” or “neo-nazi” and screaming “there go the child molesters” in the presence of other people. The trial court found that the defendant’s conduct and language constituted “fighting words” that were not entitled to constitutional protection.

Fighting words are those that are inherently inflammatory and simply by their utterance tend to incite a breach of the peace by persons to whom they are addressed. Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S. Ct. 766, 86 L. Ed. 1031 (1942); State v. Lo Sacco, 12 Conn. App. 481, 487, 531 A.2d 184 (1987). Such words “touch the raw nerves of one’s sense of dignity, decency, and personality and . . . therefore tend to trigger an immediate, violent reaction.” State v. Battista, 10 Conn. App. 499, 503, 523 A.2d 944 (1987); State v. Hoskins, 35 Conn. Sup. 587, 591, 401 A.2d 619 (1978). They are like sparks, capable of igniting individual reaction as well as setting off a group conflagration by provoking hostile reaction or inciting a riot. State v. Beckenbach, 1 Conn. App. 669, 679, 476 A.2d 591 (1984), rev’d on other grounds, 198 Conn. 43, 501 A.2d 752 (1985).

The trial court, having heard the witnesses, was in the best position to evaluate all of the circumstances and to determine whether the depreciatory epithets shouted at the DCYS workers in front of other people in the courthouse constituted “fighting words.” Pulaski v. Ledwith, 5 Conn. App. 629, 631, 501 A.2d 396 (1985), cert. denied, 198 Conn. 803, 503 A.2d 1186 (1986). Having carefully reviewed the record, we have no difficulty in concluding that the defendant’s epithets hurled at the DCYS personnel in the presence of other persons in the courthouse fall well within the pale of fighting words. See State v. Beckenbach, supra, 678.

There is no merit to the defendant’s claim that his statements were protected by the constitution. Furthermore, in relying on the constitutional protection of free speech, the defendant overlooks the fact that regardless of the language used, his tumultuous and unprofessional conduct in the courthouse furnished a sufficient basis for the court’s finding that his actions adversely reflected on his fitness to practice law in violation of DR 1-102 (A) (6).

VT

Grievance Committee Hearing Site

The defendant also challen'ges the grievance committee’s practice which may result in conducting their hearings in a judicial district other than the district in which the attorney to be disciplined practices. The defendant argues that requiring him to defend himself in a place “so far removed” from his office placed an unconstitutional hardship upon him, making it difficult for him to attend or to produce favorable witnesses.

The defendant’s brief fails to specify which hearings he is contesting on this ground. This is relevant because there can be more than one hearing in each disciplinary matter. See Practice Book § 27B et seq. Moreover, the only authority upon which the defendant relies in support of this claim is the Declaration of Independence. In its list of grievances against King George III, the Declaration recited that “he has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public records for the sole purpose of fatiguing them into compliance with his measures. . . .” Assuming arguendo, that this clause has any relevance, we find its application to the facts of this case is anachronistic and ludicrous. Whatever may have been the hardships of intercolony travel in the days of Thomas Jefferson, the defendant has failed to show that, in this case, his ability to produce any witnesses was impaired by a hearing held at some unspecified location other than New Haven.

VII

Grievance Committee Procedures

The defendant also challenges the procedures which occurred before the grievance committee. He failed, however, to attend any of the grievance committee hearings. If he was not present at the hearings, he cannot complain about lack of an opportunity to confront or cross-examine witnesses, nor can he complain about methods of proof allowed by the committee when he was not present to object thereto. Therefore, we decline to consider these claims of error.

VIII

Remaining Claims of Error

We have carefully considered the defendant’s remaining claims of error and find them confusing and difficult to understand. It is apparent that the defendant does not understand that “a hearing such as this is not the trial of a criminal or civil action or suit, but an investigation by the court into the conduct of one of its own officers, and that, therefore, while the complaint should be sufficiently informing to advise the court of the matters complained of, and the attorney of the charges made against him, it is not required that it be marked by the same precision of statement, or conformity to the recognized formalities or technicalities of pleadings, as are expected in complaints in civil or criminal actions.” Grievance Committee of the Bar of New Haven County v. Sinn, 128 Conn. 419, 424-25, 23 A.2d 516 (1941).

In Connecticut, it is firmly established that, “[i]n proceedings such as this a defendant is entitled to notice of the charges against him, to a fair hearing, and a fair determination, in the exercise of a sound judicial discretion, of the questions at issue, and to an appeal to this court for the purpose of having it determined whether or not he has in some substantial manner been deprived of such rights.” Id., 422.

At any rate, the burden is on the defendant to show that there was error in the judgment from which the appeal was taken. Janet v. Scarpetti, 17 Conn. App. 825, 552 A.2d 1225 (1989); Manzin v. United Bank & Trust Co., 6 Conn. App. 513, 517, 506 A.2d 169 (1986). He has not sustained his burden on these claims of error.

IX

Conclusion

The trial court has wide discretion in passing upon allegations of attorney misconduct. In re Application of Courtney, supra, 523; State v. Peck, supra, 460-61. Its action will not be disturbed unless the defendant has in some substantial way been deprived of his rights. Id.; Grievance Committee v. Fasano, 4 Conn. App. 173, 175, 493 A.2d 261 (1985); Grievance Committee of the Bar of New Haven County v. Sinn, supra, 422. Our plenary review discloses that the trial court’s findings and conclusions were amply supported by the record and that the disciplinary action imposed is appropriate.

There is no error.

In this opinion the other judges concurred.

       The defendant filed a motion for the appointment of a guardian ad litem in the foreclosure action, reciting: “For reason that, due to advancing age, he is unable to assist in his defense in the matter and requires said protection to protect his legal and equitable interest in the property which is being foreclosed upon by the plaintiffs in this action.” This motion was withdrawn before it was acted upon.

        Grievance Committee v. Ennis, 84 Conn. 594, 80 A. 767 (1911); Fairfield County Bar v. Taylor, 60 Conn. 11, 22 A. 441 (1891); Grievance Committee v. Gray, 8 Conn. Sup. 267 (1940).

       By inference, an early Superior Court case appears to have followed the preponderance of evidence standard. See Grievance Committee v. Woolfson, 2 Conn. Sup. 122, 127 (1935). Trial court cases, however, do not establish binding precedent. J.M. Lynne Co. v. Geraghty, 204 Conn. 361, 369, 528 A.2d 786 (1987).

       The defendant relies on the first, ninth and fourteenth amendments to the United States constitution. Although it is not clear from his brief, it appears that he also may be claiming the same free speech guarantee under the Connecticut constitution. Because he offers no separate analysis under the state constitution, we decline to undertake such analysis sua sponte. State v. Hernandez, 204 Conn. 377, 394 n.9, 528 A.2d 794 (1987); State v. Camerone, 8 Conn. App. 317, 321 n.1, 513 A.2d 718 (1986).

       We reject the defendant’s contention that the grievance committee is in fact a lower court, albeit, a defectively organized one.