text:
    State of Connecticut v. Michael A. Patterson
    (11399)
    Heiman, Freedman and Spear, Js.

      Argued April 4
    decision released August 9, 1994

      Elizabeth M. Inkster, assistant public defender, for the appellant (defendant).

      Nancy L. Gillespie, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Carl E. Taylor, assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of burglary in the third degree in violation of General Statutes § SSa-lOS. The defendant was found not guilty of a single count of larceny in the fourth degree as defined by General Statutes § 53a-125. Following the jury verdict of guilty to the charge of burglary in the third degree, the defendant entered a plea of guilty to a charge of being a persistent serious felony offender as defined by General Statutes § 53a-40 (b). On appeal, the defendant asserts that the trial court improperly (1) concluded that the evidence was sufficient to sustain a conviction of burglary in the third degree, and (2) charged the jury during its instructions concerning the crime of burglary in the third degree (a) by misstating the mental intent required to commit the offense, (b) by not advising the jury as to the crime that the state alleged the defendant intended to commit, and (c) by enlarging the offense charged, thereby violating the defendant’s rights to due process and to notice as guaranteed to him by the federal and state constitutions. We disagree and affirm the judgment of the trial court.

The jury could have reasonably found the following facts. On November 28, 1988, Robert Blesso left his condominium at 8 Crown Ridge in Newington and returned at about 3 p.m. When he arrived at his home, he found police officers investigating a possible breaking and entering at his address.

Blesso observed that the front door of his home exhibited signs of having been pried open. Upon further investigation, he discovered that a ring and a gold Seiko wristwatch were missing from a jewelry box that he kept in the second floor master bedroom.

Earlier that day at approximately noon, John Rossier, a self-employed concrete contractor, and his assistant, Brad Dubowski, had arrived at 8 Crown Ridge to repair a cracked foundation in the basement of Blesso’s condominium. As they approached Blesso’s condominium, the front door opened, a black male appeared in the doorway, and the door was immediately closed in their faces. Rossier knocked on the door several times, receiving no response. Rossier became suspicious and sent Dubowski to the corner of the building so that he would be in a position to observe anyone attempting to leave the area by way of the backdoor. Rossier observed a person run from the rear of the condominium, enter a white Chevrolet Beretta, and start to back down Kitts Lane.

Rossier ran to his truck, which was parked in front of the condominium unit, and pulled it into a position so as to cut off the Beretta. He observed the operator of the vehicle and recognized him as the person that had opened the front door of Blesso’s condominium. The driver of the Beretta rolled down the window to speak with Rossier, giving Rossier an opportunity to observe the driver clearly. Rossier followed the Beretta and obtained the vehicle license plate number. He then went to a construction trailer and asked the developer to notify the Newington police.

Peter Lavery, a member of the Newington police department, responded to the complaint. Lavery traced the license plate number of the Beretta to a vehicle belonging to Budget Car and Truck Rental in Windsor Locks. That vehicle had been rented several days before the incident by Cameron Tappin, the defendant’s brother.

On November 29,1988, Tappin came to the Newington police station at the request of Lavery. He was driving the Beretta. Tappin informed Lavery that on the day of the crime, he took public transportation from his home to his place of employment at the Sage-Allen store in Hartford. He left the Beretta and the keys to it at his home, to which the defendant had access. Tappin told Lavery that he had asked the defendant whether he had used the vehicle on the day of the crime and the defendant admitted that he had.

On the day following the incident, Rossier returned to Crown Ridge. At that time, he was shown a series of photographs and he picked out a photograph of the defendant, Michael Patterson, as being of the individual that he had seen in the doorway of Blesso’s condominium and as the person that was operating the Beretta.

Rossier made an in-court identification of the defendant as the person whom he had observed opening the door of Blesso’s condominium on November 28, 1988, and as the person whom he had observed operating the Beretta. Blesso testified that he did not know the defendant and that he had never given him permission to enter his premises.

The defendant was found guilty of burglary in the third degree in violation of General Statutes § 53a-103, but not guilty of larceny in the fourth degree. He further pleaded guilty to being a persistent serious felony offender. This appeal followed.

I

The defendant first asserts that his conviction cannot be permitted to stand because the evidence produced against him was insufficient, as a matter of law, to sustain a conviction of the crime of burglary in the third degree. We disagree.

A

As a preliminary matter, we first turn our attention to the procedural posture of the case. The record discloses that, at the completion of the state’s case-in-chief, the defendant moved for a judgment of acquittal pursuant to Practice Book § 884. The trial court denied the defendant’s motion. As is his right, the defendant elected to offer evidence in his own behalf. The record further discloses that at the completion of all of the evidence, the defendant failed to move for a judgment of acquittal pursuant to Practice Book § 885. The defendant claims, however, that he properly preserved the issue of evidentiary insufficiency by moving for a judgment of acquittal after the verdict of guilty. See Practice Book § 899. The record does not support this claim. The transcript of the proceedings reveals that after the rendition of the guilty verdict, the defendant orally moved “for judgment notwithstanding the verdict.” No other form of postjudgment motion was ever requested orally or filed in writing by the defendant.

Under our present rules, when a defendant puts on evidence after a denial of a motion for judgment of acquittal at the completion of the state’s case, he is deemed to have waived his right to appellate review as to the sufficiency of the evidence as it existed at the completion of the state’s case-in-chief. State v. Roy, 34 Conn. App. 751, 765, 643 A.2d 289 (1994); State v. Battista, 31 Conn. App. 497, 502, 626 A.2d 769, cert. denied, 227 Conn. 907, 632 A.2d 696 (1993); State v. Wolff, 29 Conn. App. 524, 527, 616 A.2d 1143 (1992). Thus, the defendant’s claim with respect to the sufficiency of the evidence at the completion of the state’s case is not reviewable. State v. Booker, 28 Conn. App. 34, 41, 611 A.2d 878, cert. denied, 223 Conn. 919, 614 A.2d 826 (1992); State v. Wolff, supra, 528.

The defendant also failed to preserve properly his appellate right to a review of the sufficiency of the evidence at the conclusion of all of the evidence or after the rendition of the verdict of guilty by failing to move for judgment of acquittal at either of these times. See State v. Roy, supra, 34 Conn. App. 766; State v. Harvey, 27 Conn. App. 171, 186, 605 A.2d 563, cert. denied, 222 Conn. 907, 608 A.2d 693 (1992).

The defendant posits, however, that in the event that we conclude, as we do, that he failed to preserve properly his claim of evidentiary insufficiency as to the entirety of the evidence, he is nonetheless entitled to review under a claim that due process of law under both the state and federal constitutions demands that no person be convicted on evidence that is not sufficient to establish each element of the offense charged beyond a reasonable doubt. He thus claims a right of review pursuant to the mandate of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

B

The defendant in his claim of evidentiary insufficiency focuses on that part of the burglary statute that requires that the state prove beyond a reasonable doubt that the defendant intended to commit a crime within the building. General Statutes § 53a-103 (a). The defendant posits that, since the jury acquitted him of the crime of larceny in the fourth degree, and since there was no evidence of an intent to commit a crime other than larceny, that the defendant could not properly be convicted of burglary since that would, under the facts of this case, be inconsistent with the fact of his acquittal on the larceny count. We are unpersuaded.

We begin our analysis by pointing out that burglary and larceny are two separate and distinct crimes. State v. Little, 194 Conn. 665, 676, 485 A.2d 913 (1984); State v. Fields, 31 Conn. App. 312, 328, 624 A.2d 1165, cert. denied, 226 Conn. 916, 628 A.2d 989 (1993). The fact that no actual larceny was committed does not bar a conviction of the defendant for the crime of burglary even where the crime alleged to have been intended was larceny. State v. Little, supra, 675-76. The crime proscribed by the provisions of General Statutes § 53a-103, is committed completely once a person enters or remains unlawfully in a building with the intent to commit a crime therein. Id., 675. The evidence produced at trial was sufficient'to establish this intent.

‘When we are called on to review a sufficiency of the evidence claim, we impose a two part analysis. We first construe the evidence in the light most favorable to sustaining the verdict. State v. Salz, 226 Conn. 20, 31, 627 A.2d 862 (1993); State v. Rivera, 32 Conn. App. 193, 200-201, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993); State v. Hooks, 30 Conn. App. 232, 238, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993). We next determine whether, from that evidence and all the reasonable inferences that flow from the evidence, a trier of fact could reasonably find that the defendant was guilty beyond a reasonable doubt. State v. Salz, supra [31]; State v. Rivera, supra [200-201].” State v. Reddick, 33 Conn. App. 311, 332, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994).

The issue of the intent of the defendant is one of fact to be resolved by the jury. State v. Hoeplinger, 206 Conn. 278, 299, 537 A.2d 1010 (1988); State v. Perez, 10 Conn. App. 279, 283, 523 A.2d 508, cert. denied, 203 Conn. 810, 525 A.2d 524 (1987). It is the right and duty of the jurors to draw all reasonable and logical inferences from the facts as they find them to exist. State v. Reddick, supra, 33 Conn. App. 332. The jury has the further duty of determining the credibility of the witnesses and weighing the effects of conflicting evidence. State v. Pinnock, 220 Conn. 765, 778-79, 601 A.2d 521 (1992); State v. Reddick, supra, 333. “If evidence, whether direct or circumstantial, should convince a jury beyond a reasonable doubt that an accused is guilty, that is all that is required for a conviction. State v. Smith, 138 Conn. 196, 200, 82 A.2d 816 (1951); State v. Rivera, supra, [32 Conn. App.] 202.

“The test for determining whether the evidence is sufficient to sustain a verdict is thus whether the [trier of fact] could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt. . . . State v. Rivera, supra, [32 Conn. App. 202], quoting State v. Haddad, 189 Conn. 383, 387, 456 A.2d 316 (1983).” (Internal quotation marks omitted.) State v. Reddick, supra, 33 Conn. App. 333.

Our review of the evidence satisfies us that the evidence relating to the intent of the defendant to commit a crime within the building satisfies that test.

In considering the evidence introduced in a case, “[¡'juries are not required to leave common sense at the courtroom door”; State v. Maxwell, 29 Conn. App. 704, 710, 618 A.2d 43 (1992), cert. denied, 225 Conn. 904, 621 A.2d 287, cert. denied, U.S. , 113 S. Ct. 3057, 125 L. Ed. 2d 740 (1993); nor are they “expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.” State v. Little, supra, 194 Conn. 674; State v. Scielzo, 190 Conn. 191, 198 n.11, 460 A.2d 951 (1983), quoting Frankovitch v. Burton, 185 Conn. 14, 22, 440 A.2d 254 (1981).

In addition, we recognize that “ ‘[gjenerally, intent can only be proved by circumstantial evidence, and, being a mental state, it is proved by the conduct of that person whose conduct is being scrutinized.’ ” State v. Fields, supra, 31 Conn. App. 328, quoting State v. Little, supra, 194 Conn. 675. “ ‘There is no legal distinction between direct and circumstantial evidence so far as probative force is concerned.’ ” State v. Little, supra, 673, quoting State v. Cari, 163 Conn. 174, 179, 303 A.2d 7 (1972). The inferences that the jury draws from the facts proven must be reasonable and logical and not the result of speculation or conjecture. State v. Weinberg, 215 Conn. 231, 255, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990).

Our review of the cumulative effect of the evidence and the reasonable and permissible inferences to be drawn therefrom require that this verdict must be permitted to stand. The jury had before it evidence that entry to the building was gained by the use of an implement to pry open the front door by force. It had before it evidence that when the defendant opened the front door and observed the two workmen approaching, he quickly closed the door and vacated the premises through the backdoor. The jury also had before it evidence that the defendant immediately left the area in an automobile, attempting to escape detection or apprehension. All of these factors, taken cumulatively, permit a reasonable inference, based on human experience, that the defendant entered the building with the intent to commit a crime therein; State v. Little, supra, 194 Conn. 675; and, further, given the method of forcible entry, that the crime intended to be committed was that of larceny. State v. Maxwell, supra, 29 Conn. App. 710.

“Common experience tells us that an [attempted] unlawful entry into a dwelling ... is not without purpose. Nor are people accustomed to [attempt] to enter homes of strangers [by using implements to pry open the door] for innocent purposes. To any person of ordinary intelligence, the expected by-product of a surreptitious unlawful entry into the home of another is theft.” (Internal quotation marks omitted.) Id., 710, quoting State v. Zayas, 195 Conn. 611, 617, 490 A.2d 68 (1985).

Our review of the evidence convinces us that there was more than sufficient evidence to establish beyond a reasonable doubt that the defendant intended to commit the crime of larceny within the building and that the defendant’s claim to the contrary is without merit.

II

The defendant next asserts that the trial court in its charge to the jury misstated the requisite mental state, failed to apprise the jury of the crime that the state alleged the defendant intended to commit, and improperly enlarged the offense charged in violation of the defendant’s federal and state constitutional rights to due process of law and to notice. The defendant concedes, as he must, that this claim was not properly preserved in the trial court, but claims that it is nonetheless reviewable under the doctrine of State v. Golding, supra, 213 Conn. 239-40.

“Our standard of review in cases when the defendant claims that the instructions violate constitutional due process protection is whether the jury instructions were so deficient that it was reasonably possible that the jury was misled.” State v. Wolff, supra, 29 Conn. App. 530. We need reverse a conviction only if, “in the context of the whole, there is a reasonable possibility that the jury was misled in reaching its verdict.” (Internal quotation marks omitted.) State v. Scognamiglio, 202 Conn. 18, 28, 519 A.2d 607 (1987); State v. Nita, 27 Conn. App. 103, 112, 604 A.2d 1322, cert. denied, 222 Conn. 903, 606 A.2d 1329, cert. denied, U.S. , 113 S. Ct. 133, 121 L. Ed. 2d 86 (1992).

We must first determine whether the instructions given by the trial court were so defective as to implicate the constitutional right of the defendant to receive a fair trial. A charge to the jury conforms to the constitutional imperative if it provides the jurors with a “clear understanding of the elements of the crime charged, and affords them proper guidance for their determination of whether those elements were present.” (Internal quotation marks omitted.) State v. Avila, 223 Conn. 595, 602, 613 A.2d 731 (1992); State v. Wolff, supra, 29 Conn. App. 530. “An instruction that fails to satisfy these requirements would violate the defendant’s right to due process of law as guaranteed by the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution.” State v. Avila, supra, 603. “The due process clause protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crimejs] with which he is charged.” State v. Roque, 190 Conn. 143, 157, 460 A.2d 26 (1983).

When we review jury instructions, we are obligated to view the charge itself in the context of the whole trial. State v. Wolff, supra, 29 Conn. App. 531. Where, as here, no requests to charge were filed nor exceptions to the charge taken, “we do not engage in a microscopic examination of the charge, dissecting it line by line, nor do we consider the challenged portions of the charge in isolation.” Id. Rather, we examine the charge as a whole to determine whether the charge adequately guided the jury to a correct verdict. State v. Fleming, 198 Conn. 255, 268, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986); State v. Wolff, supra, 531. “Jury instructions need not be exhaustive, perfect or technically accurate.” (Internal quotation marks omitted.)Preston v. Keith, 217 Conn. 12, 17, 584 A.2d 439 (1991); State v. Wolff, supra, 531; Lemonious v. Burns, 27 Conn. App. 734, 740, 609 A.2d 254, cert. denied, 223 Conn. 915, 614 A.2d 823 (1992). To pass constitutional muster, jury instructions must be correct in law, adapted to the issues in the case and sufficient to guide the jury in arriving at a verdict. State v. Wolff, supra, 531. The test that we apply to any part of the charge is whether the charge as a whole presents the case to the jury in such a manner that no injustice is perpetrated. State v. Derrico, 181 Conn. 151, 170, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980); State v. Andrews, 29 Conn. App. 533, 540, 616 A.2d 1148 (1992) , cert. denied, 224 Conn. 924, 618 A.2d 531 (1993) .

We turn first to the assertion by the defendant that the charge was constitutionally defective because the trial court failed to charge the jury specifically as to the specific crime or crimes the evidence might show the defendant intended to commit and failed to explain the elements of such crimes. We are unpersuaded.

We have already set out the engine that drives our examination of this claim: whether it is reasonably possible, considering the charge as a whole, that the jury was misled. State v. Avila, supra, 223 Conn. 607. The determination of whether a charge is possibly misleading depends on the substance rather than the form of what is said. State v. McMurray, 217 Conn. 243, 253, 585 A.2d 677 (1991); State v. Zayas, supra, 195 Conn. 617.

Although in this instance the trial court did not explicitly instruct the jury as to the nature of the crimes that the jury could find that the defendant intended to commit within the building, the charge was not misleading. See State v. Smith, 194 Conn. 213, 220, 479 A.2d 814 (1984). First, the court clearly set forth that the intent to commit a crime was a necessary element of burglary separate and apart from breaking into or remaining unlawfully in a building. Thus, the jury could not have been misled into using evidence of the defendant’s entry and his presence in the building to find that he intended to commit a crime therein. Second, the defendant was charged with the crime of larceny and the trial court clearly explained the necessary elements of the crime of larceny in connection with its charge to the jury on that separate count. The trial court also made clear that the intent to commit the crime must exist at the time of the entry into or the remaining in the building, and it was not necessary that the intended crime be accomplished. Third, the jury had before it a bill of particulars filed by the state setting forth that the crime the defendant intended to commit on the premises was the crime of larceny, on which the trial court had fully instructed the jury during its discussion of the crime of larceny in the fourth degree.

We conclude, on the basis of our examination of the charge as a whole; State v. Avila, supra, 223 Conn. 607; that there is no reasonable possibility that the jury was misled by the failure of the trial court to instruct the jury specifically that the crime that the evidence would support as that intended to be committed by the defendant was larceny. See State v. Smith, supra, 194 Conn. 213.

Our resolution of this issue should not be construed as an approval of the charge as given. As our Supreme Court has already pointed out in a similar situation, “[t]he better practice would have been to instruct the jury on the statutory names and definitions of specific crimes for which there was sufficient evidence of an intent to commit.” Id., 220.

We discuss the balance of the defendant’s unpreserved claims together. We conclude that the defendant cannot, with respect to the balance of his attacks on the jury charge, satisfy the third prong of State v. Golding, supra, 213 Conn. 239-40.

The defendant claims that the trial court’s charge with respect to the intent required to commit the crime of burglary improperly commingled the concepts of “knowingly” and “intentionally” when charging on the requisite intent necessary to support the commission of the crime of burglary in the third degree. He also asserts that the trial court’s charge improperly enlarged the offense with which he was charged. We are convinced that the defendant has failed to meet the third Golding prong.

We have reviewed the charge as a whole as we are required to do. State v. Avila, supra, 223 Conn. 607; State v. Andrews, supra, 29 Conn. App. 540. On the basis of our review of the charge as a whole, we conclude that the charge properly and adequately instructed the jury as to the elements of the crimes charged, did not in any way misstate or confuse the requisite mental state necessary for the defendant to have committed the crime of burglary in the third degree, and did not in any way enlarge or expand the potential criminal liability of the defendant. The charge was consistent with the elements of the crime required to be proven to establish a violation of General Statutes § 53a-103. Further, the charge as a whole presented the case to the jury in such a manner that no injustice was done. State v. Derrico, supra, 181 Conn. 170; State v. Andrews, supra, 540. Because the defendant cannot show that constitutional violations clearly exist and clearly deprived him of a fair trial, we will not review his claims. State v. Golding, supra, 213 Conn. 239-40; State v. Andrews, supra, 533.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-103 provides in pertinent part: “(a) A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.”

       The defendant raises no issue on appeal with respect to his plea to being a persistent serious felony offender.

       The defendant failed to take a timely appeal from the judgment of conviction. Subsequently, the defendant sought a writ of habeas corpus and, as a result thereof, the habeas court ordered, by agreement of the parties, the restoration of the defendant’s appellate rights. This appeal followed. See Gibbs v. Mase, 11 Conn. App. 289, 290, 526 A.2d 7 (1987).

       Practice Book § 884 provides: “If the motion is made after the close of the prosecution’s case in chief, the judicial authority shall either grant or deny the motion before calling upon the defendant to present his case in chief. If the motion is not granted, the defendant may offer evidence without having reserved the right to do so.”

       We note that a motion for judgment notwithstanding the verdict is not one cognizable under our rules of practice. See Practice Book §§ 897 through 905 for postjudgment motions recognized under our rules of practice and times for filing such motions.

       The defendant claims that the insufficiency of the evidence violated his rights under both the state and federal constitutions. See U.S. Const., amend. XIV; Conn. Const., art. I, § 8. Since the defendant has failed to provide us with an independent analysis of the state constitutional claim, we decline to consider the state constitutional claim and shall limit our analysis to the relevant federal constitutional claim. State v. Hamilton, 228 Conn. 234, 246 n.10, 636 A.2d 760 (1994); State v. Andrews, 33 Conn. App. 590, 592 n.3, 637 A.2d 787, cert. denied, 229 Conn. 908, 640 A.2d 121 (1994).

       We have concluded that the defendant failed to preserve properly his claim of evidentiary insufficiency, but that, as an alternative to proper preservation, he claims review pursuant to State v. Golding, supra, 213 Conn. 239-40. Our Supreme Court, following the dictate of the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), has held that “any defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of Golding.” State v. Adams, 225 Conn. 270, 276 n.3, 623 A.2d 42 (1993). Thus, we conclude that there is no practical reason for engaging in a Golding analysis of a claim based on the sufficiency of the evidence and we will thus review the defendant’s challenge to the sufficiency of the evidence as to the charge of burglary in the third degree as we do any properly preserved claim.

       The transcript reflects that the defendant affirmatively said that he had no exceptions to the charge. The record is devoid of any requests to charge filed on behalf of the defendant. See Practice Book § 852.

        State v. Golding, supra, 213 Conn. 239-40, requires that in order to prevail on a claim of unpreserved constitutional error, that the defendant must meet all of the following four conditions: “(l)the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness beyond a reasonable doubt.” We are free, however, to dispose of the claim by focusing on the condition that appears most relevant under the circumstances of the case. State v. Andrews, supra, 29 Conn. App. 537.

       We recognize, as we have previously said, that “[t]he first two conditions [of Golding review] are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself.” State v. Crosby, 34 Conn. App. 261, 264, 641 A.2d 406 (1994). Thus, although we continue to use the Golding language of entitlement to review with respect to the third prong, we recognize that, in effect, when we conclude under that prong, we have actually afforded some degree of review to the claim.

       See footnote 10.


source: Caselaw Access Project

author: Landau, J.

license: Public Domain

text:
    William Taff v. Jayma Bettcher
    (12875)
    Foti, Landau and Schaller, Js.
    Argued June 2
    decision released August 16, 1994

      Michael J. Mannion, for the appellant (defendant).

      Carlo Forzani, with whom, on the brief, was Lori Loucks, for the appellee (plaintiff).

      M. Katherine Webster-O’Keefe, with whom, on the brief, was Barbara W. Reynolds, for the minor child.
   Landau, J.

The defendant appeals from the decision of the trial court granting the plaintiffs motion to modify the pendente lite order of custody of the parties’ minor child. The defendant claims that the trial court improperly conducted a hearing on the plaintiffs motion to modify custody (1) without the minor child’s court-appointed counsel present, and (2) without providing the defendant reasonable notice in violation of her due process rights.

The following facts are relevant to this appeal. This action was commenced, by writ and complaint filed on March 26, 1992, to settle a custody dispute concerning the parties’ minor son. On April 2, 1992, the trial court entered pendente lite orders on a stipulation of the parties providing for joint legal custody and shared care. The defendant would provide care on weekdays except Wednesdays from 8:30 a.m. to 5:30 p.m., and on Wednesdays until 2:30 p.m., and the plaintiff would provide care from 5:30 p.m. to 8:30 a.m., and on Wednesdays from 2:30 p.m. The parties were to arrange agreeable weekend schedules.

On August 27,1993, the plaintiff filed an application requesting, inter alia, temporary custody and modification of the visitation schedule. The plaintiffs motion for modification alleged that the mother displayed explosive, irrational behavior, and subjected her minor child to emotional abuse. The plaintiffs counsel, accompanied by the court-appointed counsel representing the minor child, appeared before the court, and the court declined to order the requested relief because the defendant’s attorney was not present. The court then scheduled the matter for a hearing to be held on August 30, 1993. The counsel for the minor child advised the court that she would be unable to attend that hearing, but, given the circumstances surrounding the requests, she felt that the hearing should take place as soon as possible even if that meant proceeding without her. The counsel for the minor child confirmed in a letter to the family relations office her position in this matter. The trial court was in possession of the letter prior to commencement of the hearing.

The court, aware that the attorney for the minor child was not available, heard the application from August 31 through September 2, 1993. The court found that the defendant mother posed a risk to the child’s welfare and entered a temporary order modifying the existing custody and visitation order. The plaintiff was designated the primary residential parent and the defendant would be allowed visitation Monday through Saturday from 8:30 a.m. to 1 p.m. The defendant filed this appeal.

I

The defendant first claims that the trial court improperly conducted the hearing to modify custody and visitation without counsel for the minor child present. The defendant advances the argument that the trial court prevented counsel for the minor child from fulfilling her statutory and ethical obligations to her client by refusing to continue the hearing to a date when counsel would be available. In this argument, the defendant asserts the due process rights of her minor child.

As a threshold matter, we note that the dispositive issue is not whether the trial court should have proceeded with the modification hearing without the child’s counsel present, but, rather, whether a parent, in the course of a contested custody-visitation proceeding in which counsel for the minor child has been appointed, can assert her child’s right to have counsel present at the hearing. We hold that she cannot.

The defendant asserts two arguments addressing her standing to appeal from the trial court’s decision to conduct the visitation hearing without the presence of the minor child’s counsel. First, she claims that as a party to the visitation hearing she can assert the rights of her child to have counsel present. Second, she argues that, by virtue of her parental supervisory responsibilities, she can require that counsel be present to represent the best interest of her child.

A

STATUTORY CLAIM

The defendant offers no case law authority for her first proposition. She contends that the common law of this state is that a minor child is non sui juris, represented only by a next friend, typically a parent. She further asserts that as a parent, the welfare of the child is her duty which is not abdicated because the court, in its discretion, has appointed counsel to represent the child’s best interests.

“The issue of standing implicates the court’s subject matter jurisdiction. Middletown v. Hartford Electric Light Co., 192 Conn. 591, 595, 473 A.2d 787 (1984). Standing focuses on the party seeking to be heard and not on the issues that party wants to have heard. Zoning Board of Appeals v. Planning & Zoning Commission, 27 Conn. App. 297, 300, 605 A.2d 885 (1992). . . . The question of standing does not involve an inquiry into the merits of the case.” Appeal from Probate by Bencivenga, 30 Conn. App. 334, 337, 620 A.2d 195 (1993). It merely requires allegations of a colorable claim of injury to an interest that is arguably protected by the statute or common law. Ducharme v. Putnam, 161 Conn. 135, 139, 285 A.2d 318 (1971); Appeal from Probate by Bencivenga, supra, 337.

We know of no statute that gives the defendant mother the legal right to demand that the child’s court-appointed counsel be present at a custody-visitation hearing. General Statutes § 46b-54 gives the court the discretion to appoint counsel to represent the child; it does not confer any authority or legal interest on a parent.

Our case law is also clear that a person cannot gain standing by asserting the due process rights possessed by another individual. “It is axiomatic that due process rights are personal, and cannot be asserted vicariously. Shaskan v. Waltham Industries Corporation, 168 Conn. 43, 49, 357 A.2d 472 (1975); see Silverman v. St. Joseph’s Hospital, 168 Conn. 160, 175-77, 363 A.2d 22 (1975).” Shelby Mutual Ins. Co. v. Della Ghelfa, 3 Conn. App. 432, 449, 489 A.2d 398 (1985), aff'd, 200 Conn. 630, 513 A.2d 52 (1986); Red Hill Coalition v. Conservation Commission, 212 Conn. 710, 724-25, 563 A.2d 1339 (1989). Thus, once the court finds it appropriate to appoint counsel for the minor child, the representation is the child’s entitlement, not the parent’s. The respondent mother cannot obtain standing by asserting the right of her child to have an attorney present.

B

CONSTITUTIONAL CLAIM

We must next determine whether a parent, who certainly has legal duties with respect to her child, can dictate how the best interests of her child should be legally represented in a court proceeding. We conclude that she cannot. “Our law ‘recognizes that parents have significant constitutionally protected rights to the companionship, care, custody and management of their children. See Quilloin v. Walcott, 434 U.S. 246, 255, 98 S. Ct. 549, 54 L. Ed. 2d 511, reh. denied, 435 U.S. 918, 98 S. Ct. 1477, 55 L. Ed. 2d 511 (1978); Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); McGaffin v. Roberts, 193 Conn. 393, 400-401, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985).’ Cappetta v. Cappetta, 196 Conn. 10, 14, 490 A.2d 996 (1985); see also Wisconsin v. Yoder, 406 U.S. 205, 232-33, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972); Ginsberg v. New York, 390 U.S. 629, 639, 88 S. Ct. 1274, 20 L. Ed. 2d 195, reh. denied, 391 U.S. 971, 88 S. Ct. 2029, 20 L. Ed. 2d 887 (1968); Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S. Ct. 571, 69 L. Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 67 L. Ed. 1042 (1923).” (Emphasis added.) Lehrer v. Davis, 214 Conn. 232, 236-37, 571 A.2d 691 (1990). “The family is not, however, beyond regulation in the public interest, and the rights of parenthood are not beyond limitation. Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 88 L. Ed. 645 (1944); McGaffin v. Roberts, supra, 401.” Lehrer v. Davis, supra, 237. “Neither parent has a right of property in their children of which they cannot be deprived without their consent.” Antedomenico v. Antedomenico, 142 Conn. 558, 562, 115 A.2d 659 (1955). Indeed, “[t]he State has a parens patriae interest in preserving and promoting the welfare of the child, Santosky v. Kramer, 455 U.S. 745, 766, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982) .... In re Steven G., 210 Conn. 435, 440, 556 A.2d 131 (1989).” (Internal quotation marks omitted.) In re Donna M., 33 Conn. App. 632, 637, 637 A.2d 795 (1994). Our state legislature has deemed it necessary, in order to preserve and promote the welfare of a minor child, to provide representation of counsel when the circumstances, as the trial court determines, require it. “General Statutes § 46b-54 (a) allows the court to appoint an attorney to represent a minor child during a dissolution proceeding if ‘the court deems it to be in the best interests of the child.’ . . . ‘The purpose of appointing counsel for a minor child in a dissolution action is to ensure independent representation of the child’s interest and such representation must be entrusted to the professional judgment of appointed counsel within the usual constraints applicable to such representation.’ Schaffer v. Schaffer, 187 Conn. 224, 224 n.1, 445 A.2d 589 (1982).” Knock v. Knock, 224 Conn. 776, 790-91, 621 A.2d 267 (1993). This statutory power does not interfere with the parent’s management of her child’s welfare. Indeed, “[wjhen custody is contested and there are allegations of [mistreatment], children have a unique need to be represented by counsel who will advocate their best interests.” G. S. v. T. S., 23 Conn. App. 509, 516, 582 A.2d 467 (1990). In child custody proceedings, parents lack the necessary professional and emotional judgment to further the best interests of their children. “Neither parent could be relied on to communicate to the court the children’s interests where those interests differed from his or her own.” Id., 518. A parent’s judgment is or may be clouded with emotion and prejudice due to the estrangement of husband and wife. Id. A discretionary statutory appointment of counsel for the child within the auspices of a custody-visitation proceeding does not interfere with a parent’s right to control her child’s welfare. On the contrary, the appointment of counsel to represent the child’s best interests is consistent with the efforts of the parent in promoting the welfare of the child.

Counsel for the minor child made a judgment with regard to whether modification of custody and the visitation schedule was necessary and made her position known to the trial court. Certainly, counsel for the child is in a more appropriate position to exercise sound legal judgment than is the defendant. We conclude that the mother has no standing on this claimed issue to appeal the judgment of the trial court. We therefore dismiss the defendant’s appeal as to this claim.

II

The defendant’s second claim is that the trial court conducted the hearing on the motion to modify her visitation rights without giving her reasonable notice in violation of her due process rights guaranteed by the state and federal constitutions.

The following facts are necessary to resolve this issue. On Friday, August 27, 1993, the plaintiff and counsel for the minor child presented an application to the trial court requesting an ex parte order enjoining the defendant and modifying the visitation schedule because they claimed that the minor child was exposed to a significant risk of harm. The court refused to act on the motion because the defendant was not present; counsel for the defendant was on vacation out of town on August 26 and 27. The trial court scheduled the matter for hearing on Monday, August 30,1993. Defense counsel’s office was notified of the scheduled hearing date. On Monday, August 30, the defendant requested a continuance because of conflicting court obligations. The trial court continued the hearing date to Tuesday, August 31, at 2 p.m. At the hearing on Tuesday, the defendant’s counsel requested a further continuance of the hearing claiming as her basis the absence of counsel for the minor child and the need to obtain experts to testify with respect to the allegations in the application. The court denied the defendant’s request stating that it would issue, if necessary, only temporary orders and that it would entertain any concerns of the minor child’s counsel on her return from vacation if requested.

The hearing that followed lasted three days and included testimony from, among others, the court-appointed psychologist, the former nanny for the minor child, the defendant, the defendant’s psychiatrist, and the defendant’s psychological tester. At the conclusion of the proceeding, the trial court found that “the mother’s behavior is definitely psychologically dangerous and probably physically dangerous” and harmful to her child. The court issued temporary orders modifying the visitation schedule, limiting the time of the child’s exposure to the negative environment presented by the mother.

“General Statutes § 46b-56 (a) provides that ‘[i]n any controversy before the superior court as to the custody or care of minor children ... the court may at any time make or modify any proper order regarding the education and support of the children and of care, custody and visitation . . . .’” (Emphasis added.) Hurtado v. Hurtado, 14 Conn. App. 296, 303-304, 541 A.2d 873 (1988). “Pursuant to General Statutes § 46b-56 (b), in making a determination of custody, the governing standard is the best interests of the child. Yontef v. Yontef, 185 Conn. 275, 282, 440 A.2d 899 (1981).” Id., 301. “It must, however, exercise that authority in a manner consistent with the due process requirements of fair notice and reasonable opportunity to be heard.” Strohmeyer v. Strohmeyer, 183 Conn. 353, 356, 439 A.2d 367 (1981). “A custody [or visitation] order cannot be modified without adequate notice and opportunity to be heard.” Hurtado v. Hurtado, supra, 306.

The trial court was faced with allegations of harm to a minor child. Cognizant of the defendant’s due process rights, it ordered a hearing for the following Monday, giving the defendant the weekend to prepare. It continued the case until Tuesday, and held a hearing that lasted three days. All three of the witnesses, whom the defendant claimed she would not have time to secure for testifying, did testify at the visitation hearing. In light of the circumstances, the trial court satisfied the requirements of due process while adjudicating the best interests of the child.

The appeal is dismissed in part; the judgment is affirmed.

In this opinion the other judges concurred.

       The defendant moved to continue the hearing to allow the child’s counsel to participate. The motion was denied and the court proceeded with the hearing and adjudication of the motion, cognizant that the counsel for the minor child was not present. The court stated that it had before it a letter from the counsel for child stating her position, and that it would conduct a rehearing to present any new concerns upon the counsel’s return from vacation if requested by counsel for the minor child.

       Although the defendant’s claims on appeal address only the visitation orders, those orders are so related to the custody orders as to render them immediately appealable. See Madigan v. Madigan, 224 Conn. 749, 751 n.4, 620 A.2d 1276 (1993).

       Although the statutory basis for this proceeding is not clear from the record, we consider this action to be brought under General Statutes § 46b-61, which pertains to orders as to the custody, care, education, visitation and support of any minor child of parents who live separately or, as in this case, parents who were never married. Moll v. Gianetti, 8 Conn. App. 50, 51, 510 A.2d 1009 (1986); Grynkewich v. McGinley, 3 Conn. App. 541, 543 n.2, 490 A.2d 534 (1985). Under § 46b-61, the provisions of General Statutes §§ 46b-54, 46b-56, 46b-57 and 46b-66 apply to matters involving such minor children.

       Because the defendant fails to analyze her claim under the state constitution, we limit our analysis to the guarantees of the federal constitution. State v. Joly, 219 Conn. 234, 258 n.16, 593 A.2d 96 (1991).


author: Foti, J.

text:
    State of Connecticut v. William Walker
    (12481)
    Dupont, C. J., and Foti and Landau, Js.
    Argued April 25
    decision released July 8, 1994

      Dennis F. O’Toole, assistant public defender, for the appellant (defendant).

      Leah Hawley, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and William Bumpus, former assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of assault of a correction officer pursuant to General Statutes § 53a-167c (a) (l), for which he was sentenced to eight years imprisonment. The defendant claims that he was punished twice for the same offense and, therefore, that his sentence should be vacated on the grounds of the double jeopardy provisions of the state and federal constitutions. We affirm the judgment of the trial court.

On June 5, 1992, the defendant was being detained prior to trial at the Hartford community correctional center when he struck correction officer Christopher Novak in the head and jaw with his fist. The defendant was placed immediately in administrative detention in an isolation area pending disciplinary proceedings. Novak issued a disciplinary report and the defendant received a copy. The defendant was presented before the correction facility disciplinary board and, after declining the assistance of a correction staff employee as advocate, admitted the misconduct and received fifteen days punitive segregation and thirty days confinement to quarters. He has completed the sanctions imposed.

An officer of the Connecticut state police was assigned to investigate the incident. Subsequent to the disciplinary hearing, an arrest warrant was issued for the defendant for the charge of assault in the second degree pursuant to General Statutes § 53a-60. Ultimately, the defendant was charged by information with assault of an employee of the department of correction in violation of General Statutes § 53a-167c (a) (1). The defendant moved to dismiss the information pursuant to Practice Book § 815 (6) asserting that prosecution was barred by the principles of double jeopardy as contained in the Connecticut constitution and the fifth and fourteenth amendments to the United States constitution. The trial court denied the motion. The case proceeded to a jury trial and the defendant was convicted as charged.

The sole issue on appeal is whether the sanctions imposed on the defendant by the department of correction constituted punishment for the purposes of double jeopardy and thereby barred the subsequent criminal prosecution.

The double jeopardy clause of the fifth amendment to the United States constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” “This clause prohibits not only multiple trials for the same offense but also multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977).” State v. John, 210 Conn. 652, 693, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989). This constitutional provision applies to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 787, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969); State v. Woodson, 227 Conn. 1, 7, 629 A.2d 386 (1993). Although the Connecticut constitution does not include a specific double jeopardy provision, the due process guarantee of article first, § 9, of our state constitution has been held to encompass protection against double jeopardy. Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962); see also State v. Anderson, 211 Conn. 18, 25 n.8, 557 A.2d 917 (1989).

We must first resolve the threshold issue of whether multiple punishments were imposed. In denying the motion to dismiss, the trial court found, “[t]he ‘punishment’ which the defendant received as a, result of this incident, by the department of correction, was an administrative matter, not punitive, was intended to enforce the security rules of the institution, to maintain order, and to maintain control of the institution. It was not a determination of innocence or guilt beyond a reasonable doubt of the charges, [that] the defendant has had to face here . . . which is a violation of § 53a-167e (1), interfering with a correctional officer’s performance of his duties, and causing physical injury to a correctional officer.” The trial court concluded that the administrative sanction imposed did-not constitute punishment for the purposes of the double jeopardy prohibition against multiple punishment. We agree.

The defendant argues that the administrative sanction imposed by the department of correction constituted punishment for the purposes of double jeopardy because the title of the sanction imposed was “punitive segregation,” and because the segregation arguably served the punitive function of deterrence.

Civil sanctions are not exempt from double jeopardy analysis. A civil sanction constitutes punishment when the sanction as applied to the individual case serves the goals of punishment, i.e., retribution and deterrence.” United States v. Halper, 490 U.S. 435, 448, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989). “[A] civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment. . . .” Id. In addition, when the severity of the sanction is so disproportionate to the harm caused, it may constitute punishment. Id., 449. Labels do not control in a double jeopardy inquiry. Id., 448. Thus, the fact that the sanction was labeled punitive does not make it so; rather we must make a particularized assessment of what purpose the penalty may fairly be said to serve. Id., 448.

“ ‘Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.’ Price v. Johnston, 334 U.S. 266, 285, 68 S. Ct. 1049, 92 L. Ed. 1356 (1948).” Roque v. Warden, 181 Conn. 85, 93, 434 A. 2d 348 (1980). The institutional consideration of internal security in the correction facilities themselves is essential to all other correction goals. Id., 97-98. General Statutes § 18-31a specifically mandates that the commissioner of correction “shall establish rules for the regulation and government of . . . community correctional centers . . . and for the discipline and employment of inmates.” Because the realities of running a correctional institution are complex and difficult, the courts give wide-ranging deference to the decisions of prison administrators in considering what is necessary and proper to preserve order and discipline. Buckley v. Warden, 181 Conn. 286, 291, 435 A.2d 348 (1980).

In this case, the trial court found, and we agree, that the sanctions imposed on the defendant served the purpose of maintaining institutional order and security. The sanctions were imposed pursuant to the policy and procedures of the Hartford community correctional center. The trial court heard the testimony of Lieutenant Eric Stewart, the disciplinary coordinator at the Hartford correction center. He testified that punitive segregation involves confinement of the inmate to a cell away from the general prison population twenty-three hours a day and the loss of other privileges such as telephone, visitation, recreation, and commissary visits. Confinement to quarters is a lesser sanction and generally some of the inmate’s privileges will be restored. Stewart further testified that penalties imposed by correction department disciplinary proceedings cannot result in any additional jail time, only the loss of accrued good time credits.

The sanction of fifteen days of punitive segregation and thirty days of confinement to quarters was not disproportionate to the serious offense of assault on a correction employee. The defendant was never exposed to an extension of a sentence. Further, there was testimony that if the defendant, who was being detained pending trial, had made bond, he would have been released without having to serve what remained of the sanctions. It was not unreasonable to remove the defendant from the general prison population because his violent behavior could be detrimental to maintaining control throughout the correction facility. Correction authorities must be allowed to take appropriate action to ensure the safety of inmates and correction employees; they must be permitted promptly to sanction misconduct within the institution so as to preserve order and discipline. “Ensuring security and order at the institution is a permissible nonpunitive objective . . . .’’Belly. Wolfish, 441 U.S. 520, 561, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979).

Further, our Supreme Court has previously characterized such actions by the department of correction as nonpunitive and, accordingly, declined to address a defendant’s double jeopardy claim. In State v. Mead, 130 Conn. 106, 112, 32 A.2d 273 (1943), the court stated: “To the defendant’s claim of double jeopardy because of solitary confinement upon his return after escape, a sufficient answer is that this was not imposed as punishment for the crime of escape from the prison but as a measure of prison discipline.” We similarly conclude that the sanction imposed on the defendant by the department of correction in this case did not constitute punishment for the purposes of double jeopardy.

The defendant also argues that because the transfer of a prisoner to punitive segregation implicates an inmate’s due process rights; Roque v. Warden, supra, 181 Conn. 94; deprivation of that right necessarily amounts to punishment. The disciplinary proceeding and the prehearing notice, investigation, and opportunity for advice, are all intended to protect the interests of the defendant. The hearing serves to determine whether the rules of the institution have been broken and to ensure that sanctions are imposed impartially and in proportion to the misconduct. “ ‘The fact that harm is inflicted by governmental authority does not make it punishment. . . . [A]ll discomforting action may be deemed punishment because it deprives of what otherwise would be enjoyed.’ . . .” Bell v. Wolfish, supra, 441 U.S. 538 n.19. As the defendant notes in his brief, “in determining whether a particular civil sanction constitutes criminal punishment, it is the purposes actually served by the sanction in question, not the underlying nature of the proceeding giving rise to the sanction, that must be evaluated.” (Emphasis added.) United States v. Halper, supra, 490 U.S. 447 n.7. We have already determined that the sanction imposed served a remedial and not a punitive purpose.

Because we find on the threshold issue that multiple punishments have not been applied, we need go no further. “When the issue is purely one of multiple punishments, the right to be free from vexatious proceedings simply is not present.” State v. Lonergan, 16 Conn. App. 358, 377, 548 A.2d 718 (1988), aff'd, 213 Conn. 74, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2568, 110 L. Ed. 2d 267 (1990).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-167c (a) provides in pertinent part: “A person is guilty of assault of a[n] . . . employee of the department of correction when, with intent to prevent a reasonably identifiable . . . employee of the department of correction from performing his duty, and while such . . . employee is acting in the performance of his duties, (1) he causes physical injury to such . . . employee . . . .”

       In Halper, the United States Supreme Court held that the statutory penalty authorized under the federal civil false claims act constituted double jeopardy as applied to the defendant who was previously convicted, fined and sentenced to prison on charges arising out of the same transactions. While we note that Halper was initially limited to a “rare case, ” the Supreme Court has recently extended that holding in Dept. of Revenue of Montana v. Kurth Ranch, U.S. , 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994). There, the court found that a Montana drug tax was “a concoction of anomalies, too far-removed in crucial respects from a standard tax assessment to escape characterization as punishment for the purpose of Double Jeopardy analysis.” Id., 1948.

       In Brazo v. Real Estate Commission, 177 Conn. 515, 526, 418 A.2d 883 (1979), our Supreme Court held that the suspension of the defendant’s real estate license for two thirty day periods, one pursuant to a commission regulation and the other under the General Statutes, violated the double jeopardy prohibition against multiple punishments. We note, however, in that case, that the court explicitly found the regulation at issue to be penal in nature.

       The defendant also attempts to make a distinction between administrative detention and punitive segregation. In this case, administrative detention was imposed pending the resolution of the disciplinary proceedings. The defendant received credit for time spent in administrative detention toward the completion of the punitive segregation. From the perspective of the inmate, which is the crucial viewpoint in double jeopardy analysis; see United States v. Halper, supra, 490 U.S. 447 and n.7; there is no difference between these sanctions.

       Section 1 of those polices and procedures provides: “[T]he Hartford Community Correctional Center . . . shall provide for the orderly conduct of inmates by establishing rules of conduct and procedures to address misconduct. . . . Sanctions shall be proportionate to the seriousness of the offense and the disciplinary record of the offender and shall serve to manage the offender’s behavior and to demonstrate the consequences of misconduct. ” (Emphasis added.)

       See also United States v. Newby, 11 F.3d 1143, 1144-46 (3d Cir. 1993).

       The state argues that a disciplinary hearing does not constitute criminal prosecution for the purposes of double jeopardy. In an analogous situation, a probation revocation proceeding, our Supreme Court found that the exposure to criminal prosecutions for the same offense after conviction or acquittal that is prohibited by the double jeopardy clause “is absent from proceedings that are not essentially criminal. ... A proceeding is criminal for double jeopardy purposes, if it imposes a sanction intended as punishment. ...” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Smith, 207 Conn. 152, 176, 540 A.2d 679 (1988).


text:
    State of Connecticut v. Thurman Goodman
    (12271)
    Foti, Landau and Heiman, Js.

      Argued June 2
    decision released August 16, 1994

      Louis S. Avitabile, special public defender, with whom was Meryl Arme Spat, for the appellant (defendant).

      Margaret Gaffney Radionovas, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Mitchell S. Brody and Corinne L. Klatt, assistant state’s attorneys, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (l), as a lesser included offense of murder in violation of General Statutes § 53a-54a. The defendant claims that the trial court improperly (1) instructed the jury on the reasonable doubt standard and (2) refused to allow potential verdicts to be announced as partial verdicts. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of May 25, 1991, the defendant observed his wife getting out of the victim’s car. After hitting his wife in the face, he approached the victim, who was still seated in the driver’s seat of his automobile, opened the driver’s door, pulled out a knife with a three and one-half inch cutting blade from his pocket and stabbed the victim several times in the legs and chest. The victim begged not to be killed, and tried to avoid the attack by moving to the passenger side of the car. He also attempted to ward off the defendant by kicking him. The defendant grabbed the victim’s feet and pulled him out of the car and onto the ground. After being told by a bystander to leave the victim alone, the defendant folded up the knife, put it in his pocket and left the scene. The victim had multiple stab wounds to the chest, left arm and left leg. He died as a result of a four and three-quarter inch deep stab wound to the chest.

I

The defendant first claims that the trial court improperly instructed the jury on reasonable doubt. The court instructed the jury that a reasonable doubt is “a doubt for which a reasonable person can give a valid reason.” The defendant alleges that this instruction violated his constitutional rights to due process and trial by jury. He asserts that this instruction amounts to an articulation requirement and as such it reduces or dilutes the state’s burden of proof, or shifts that burden to the defendant.

Before reviewing the merits of the defendant’s first claim, we note that the defendant correctly points out that his challenge to this jury instruction was not “unpreserved.” The defendant’s claim was properly preserved for purposes of appeal, so our inquiry is not limited to whether the instruction infringed on a clear constitutional right, but, instead, we afford the claim complete review.

The challenged instructions are similar or identical to jury instructions that have previously been approved by our Supreme Court. State v. DePastino, 228 Conn. 552, 572, 638 A.2d 578 (1994) (“a doubt for which a valid reason can be assigned”); State v. Gomez, 225 Conn. 347, 353, 622 A.2d 1014 (1993) (“a doubt for which a reasonable man or woman can give a valid reason”); State v. Adams, 225 Conn. 270, 290, 623 A.2d 42 (1993) (“a doubt for which a valid reason can be assigned”); State v. Derrico, 181 Conn. 151, 171, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980) (“one for which you can, in your own mind, conscientiously give a reason”); State v. Johnson, 29 Conn. App. 584, 590, 617 A.2d 174 (1992) (“a doubt for which a valid reason may be assigned”), appeal dismissed, 228 Conn. 59, 634 A.2d 293 (1993) (certification improvidently granted).

The defendant argues that our Supreme Court “should reconsider its stance on the issue.” This court does not reevaluate Supreme Court decisions; we are bound by those decisions. In re David E., 4 Conn. App. 653, 658, 496 A.2d 229 (1985).

Our Supreme Court has also stated that the same or similar instructions “did not decrease the state’s burden of proof when viewed in the context of the entire charge”; State v. Gomez, supra, 225 Conn. 354; and “did not dilute the defendant’s presumption of innocence.” State v. Adams, supra, 225 Conn. 291; see also State v. Johnson, 214 Conn. 161, 571 A.2d 79 (1990); State v. Thomas, 214 Conn. 118, 570 A.2d 1123 (1990); State v. Lytell, 206 Conn. 657, 539 A.2d 133 (1988); State v. Leecan, 198 Conn. 517, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986); State v. Findlay, 198 Conn. 328, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986).

The test to be applied when reviewing a challenge to jury instructions is whether the jury charge as a whole presents the case adequately to the jury so that no injustice is done; State v. Lytell, supra, 206 Conn. 664; whether that portion of the charge relating to the concept of reasonable doubt, read as a whole, could properly and sufficiently guide the jury, and fairly present the case to the jury. State v. Derrico, supra, 181 Conn. 171. We view the charge as a whole and consider how the jury was likely to hear it and how the jury was probably affected by it. State v. Ortiz, 217 Conn. 648, 666, 588 A.2d 127 (1991).

We have reviewed the trial court’s total charge on the issue of reasonable doubt and conclude that it was both adequate and correct in presenting that legal concept to the jury. The challenged instruction did not compel a juror to explain or in any way articulate to the other jurors any reason for his or her doubt. The focus in the instruction was on reasons formulated by jurors through the use of their own rational thought processes. An articulation requirement is not created by an instruction that focuses on a reason for a doubt arrived at in the juror’s own mind; instead, an articulation requirement would require the juror to state that reason to other jurors. State v. Campbell, 225 Conn. 650, 666, 626 A.2d 287 (1993). The instruction herein did not require, nor suggest as necessary, that a juror explain to fellow jurors his or her reason for having a reasonable doubt. See State v. Jeffrey, 220 Conn. 698, 719, 601 A.2d 993 (1991), cert. denied, U.S. 112 S. Ct. 3041, 120 L. Ed. 2d 909 (1992). The jury charge as a whole clearly and correctly defined the proof beyond a reasonable doubt standard. The defendant’s constitutional rights to due process and trial by jury have not been violated in this case.

II

The defendant also claims that the trial court improperly disallowed potential verdicts in violation of Practice Book § 867 and in violation of his constitutional right to have a fair trial by a properly instructed jury.

The defendant was charged by information with the crime of murder in violation of General Statutes § 53a-54a. The state filed a request to charge on the two lesser included offenses of intentional manslaughter in violation of General Statutes § 53a-55 (a) (1), and reckless manslaughter with extreme indifference to human life in violation of General Statutes § 53a-55 (a) (3). The defendant requested a charge on a lesser included offense of criminally negligent homicide in violation of General Statutes § 53a-58. The trial court complied by instructing the jury on the greater and the three lesser included offenses. The court instructed the jury that the defendant was charged with the crime of murder and that it should first consider that charge. The jury was told that it could consider each lesser included offense if the jury first found either that the state had failed to meet its burden of proof on the greater offense, or if the jury had failed to agree unanimously on a greater offense.

Following the court’s instruction on October 14, 1992, the jury deliberated over the next five days. It interspersed its deliberations with requests to read back the court’s charge on various offenses and also of the testimony of a number of witnesses. On October 22, 1992, the sixth day of deliberations, the jury sent the following note: “Your Honor, good morning. The jury is stuck. We are unable to reach a verdict at this time. Could you give us some direction? Thank you.”

After repeating some of the instruction, including the possible verdicts that could be reached, the court concluded: “I understand . . . that the jury has not reached any one of these possible verdicts. Is that correct, yes or no?” The foreperson responded, “No.” The court then responded: “Then if that’s not correct, then I’ll ask you to retire to the deliberation room and be prepared to report your verdict. Please retire.” Thereafter, the court met with counsel in chambers. The court interpreted the note as an indication that the jury had been unable to reach a verdict and decided that it would not elicit a partial verdict at that time. The court ruled that it would reinstruct the jury on the deliberation process and the unanimity requirement. It did so, and also gave a Chip Smith instruction. The defendant expressed exception to this ruling and moved for a mistrial. The defendant’s motion for a mistrial was denied.

Thereafter, on October 23,1992, the defendant filed a supplemental request to charge that was given by the court to the jury on October 27, 1992. On October 29,1992, the jury requested additional instruction on intent, and, on October 30,1992, the jury announced that it had reached a verdict. The clerk of the court asked the foreperson of the jury whether the jury had found the defendant guilty, or not guilty, on the charge of murder, or whether the jury had been unable to agree unanimously. The foreperson responded, “Not guilty.” The clerk then made the same inquiry as to the lesser included crime of manslaughter in the first degree under § 53a-55 (a) (1), and the foreperson replied, “Guilty.” The court accepted and recorded the verdict, which, upon polling, was collectively and individually affirmed by the jurors. The court denied the defendant’s motion to inquire of the jury what verdicts, if any, it had reached on October 22, 1992.

On November 3, 1992, the defendant filed postconviction motions in arrest of judgment, for judgment of acquittal, and for a new trial. He argued that the jury verdict returned October 30,1992, was actually the second verdict, as one previously had been reached by that jury on October 22, 1992. The defendant claimed that the court committed harmful error by not allowing the October 22,1992 verdict to be announced in court. The motions were denied. The court noted that the first time the jury reported that it was prepared to announce a verdict was on October 30, 1992, and that on October 22,1992, the jury was “stuck,” meaning that only a partial verdict might be available. The court reasoned that no requirement existed mandating the taking of a partial verdict, and that there existed in this case, as in all cases, a necessity of protecting the integrity of the deliberation process.

The defendant argues on appeal that there were four separate charges on which four separate verdicts could be rendered and, therefore, that the jury instructions were the legal equivalent of an information charging four separate counts. We do not agree. The defendant was charged by information filed on August 18,1992, with one count of murder in violation of General Statutes § 53a-54a. The fact that the trial court, as requested by the parties, instructed the jury on the three lesser included offenses did not authorize the jury to reach a verdict on successive lesser offenses before it reached a unanimous decision on the greater offense. Unlike an information charging four separate counts, the defendant under the single count information in this case could not be convicted of more than one offense. Also, under an information that charges four separate counts, a jury must deliberate and deliver a verdict as to each and every count. Here, the jury, if unanimous as to guilt, could deliver a verdict on only the charged offense. Our Supreme Court has stated that “[o]nly after it has confronted and unanimously completed the difficult task of deciding the guilt or innocence of the accused as to the charged offense should the jury consider lesser included offenses. Anything less [than such consideration] dilutes the right of the state and the defendant to have the jury give its undivided attention and most serious deliberations to the offense with which the defendant is charged and flies in the face of [a] unanimity requirement . . . .” State v. Sawyer, 227 Conn. 566, 583, 630 A.2d 1064 (1993).

Further, the defendant’s argument misconstrues the nature of partial verdicts. Only a general verdict is permitted in Connecticut on a single count information. See Practice Book § 867. The taking of a “partial verdict” in a multicount information allows the trial court to accept verdicts on those counts on which the jury has unanimously agreed and to declare a mistrial as to the others. Where the defendant was charged by information with three counts of murder, our Supreme Court stated that “it is our practice to require separate verdicts on each count . . . The verdict of guilty on one count left the others undecided. The court, after accepting the verdict on the first count, might have declared a mistrial as to the others and discharged the jury [or might have sent the jury back for further consideration of the other two counts].” (Citations omitted.) State v. Bradley, 134 Conn. 102, 114, 55 A.2d 114 (1947), cert. denied, 333 U.S. 827, 68 S. Ct. 453, 92 L. Ed. 2d 1112 (1948).

The record plainly discloses that the jury was “stuck” and therefore unable to agree unanimously; the jury was deadlocked. The record is not sufficient to determine the precise meaning of the negative response by the foreperson to the court’s inquiry as to whether the jury had reached any of the possible verdicts. The court correctly interpreted the note from the jury as an indication that the jury was unable to agree. The court, in exercising its discretion, required the jury to continue its deliberations. Practice Book § 865. The defendant does not claim, nor do we conclude, that the court abused its discretion in this regard. The defendant’s argument, that the trial court improperly failed to have the jury either announce or record the “verdicts they had reached” on October 22,1992, must also fail simply because no such verdict can be found to have existed on that date.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-55 (a) (1) provides: “manslaughter in the first degree: class b felony, (a) A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person . . . .”

       The defendant claims violations of Ms due process rights under the fifth and fourteenth amendments, and his right to a jury trial under the sixth amendment to the United States constitution.

       Both this court and our Supreme Court have addressed a defendant’s attempt to obtain appellate review of an unpreserved claim challenging similar instructions on the definition of reasonable doubt. Several cases have held that because the trial court’s instruction did not infringe on a clear constitutional right, the same instruction having been upheld by our Supreme Court as constitutional, there would be no review of the unpreserved claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). See State v. DePastino, 228 Conn. 552, 573, 638 A.2d 578 (1994); State v. Johnson, 29 Conn. App. 584, 590, 617 A.2d 174 (1992), appeal dismissed, 228 Conn. 59, 634 A.2d 293 (1993). Here, the defendant properly preserved his claim for appellate review.

       The instruction at issue was followed by an instruction that “a reasonable doubt is not a doubt raised by one who questions for the sake of questioning. A reasonable doubt is not a surmise, or speculation, conjecture or an imaginary doubt.”

       Practice Book § 867 provides: “The verdict shall be general, but if the judicial authority instructs the jury regarding the defense of mental disease or defect, the jury, if they so find, shall declare the finding in their verdict. The verdict shall be unanimous and shall be announced by the jury in open court. If there are two or more defendants, the jury may return a verdict with respect to any defendant as to whom they agree. The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein, if the attempt is an offense.”

       The defendant requested, and the court gave, the reasonable efforts instruction leading to a lesser included offense. See State v. Sawyer, 29 Conn. App. 68, 614 A.2d 471 (1992). Our Supreme Court, in reversing Sawyer, subsequently dealt with the “reasonable efforts” instruction. State v. Sawyer, 227 Conn. 566, 630 A.2d 1064 (1993).

        State v. Smith, 49 Conn. 376 (1881).

       The defendant’s request for supplemental instructions provided: “At the end of your deliberations when your verdicts and decisions are taken, the clerk will ask you as to each charge starting with murder:

      “Is the defendant Guilty/Not Guilty or you are unable to unanimously agree?
      “As to manslaughter 1st degree with intent:

      “Is the defendant Guilty/Not Guilty or you are unable to unanimously agree?
      “As to manslaughter 1st degree with recklessness:

      “Is the defendant Guilty/Not Guilty or you are unable to unanimously agree?
      “As to criminally negligent homicide:

      “Is the defendant Guilty/Not Guilty or you are unable to unanimously agree?
      “It is not necessary that the defendant be found guilty or not guilty as to each of the four charges. You may find the defendant not guilty as to all four charges, or you may find the defendant not guilty of one or more of the four charges or have one of more decisions of no agreement.
      “But there can only be a finding of guilty as to only one of the four charges, if you choose to find the defendant guilty at all.
      “It is only necessary for you to continue to deliberate if you have a decision of no agreement as to all four charges.”

       In reply to the defendant’s motion for a bill of particulars, the state filed a bill of particulars setting forth the charge, statutory citation, date, time and place of the offense, specific acts constituting the necessary elements of the crime of murder and the name of the victim.

       Since multicount informations require a separate verdict as to each count on which the jury can agree, “partial verdicts” are truly not allowed even in multicount informations. Such verdicts are partial only in the sense that they do not dispose of the entire information.

       The negative response to the question, “Is it correct that the jury has not reached any one of the possible verdicts?” can be argued to mean “No [we the jurors have not reached any one of the possible verdicts].”


text:
    Johanna C. Newman v. Fred M. Newman
    (13088)
    Foti, Landau and Schaller, Js.
    Argued June 2
    decision released August 16, 1994

      Sharon Wicks Dornfeld, for the appellants (minor children).

      William B. Barnes, with whom, on the brief, was Sheila K. Rosenstein, the appellee (defendant).
   Foti, J.

This appeal arises out of a prolonged and acrimonious dissolution proceeding. During that proceeding, the plaintiff requested that counsel be appointed for the two minor children, one born in 1983, and the other born in 1987. Attorney Sharon Dornfeld was so appointed pursuant to General Statutes § 46b-54. On March 26,1993, judgment was rendered dissolving the parties’ marriage. The plaintiff was granted sole custody of the children and permission to relocate to North Carolina. The defendant was ordered to pay $300 per week in child support. Other financial and property orders were also entered by the trial court.

In September, 1993, the defendant, claiming to have lost his job on July 31, 1993, filed a motion seeking modification of the order of child support. No objection to this motion was filed. No motion was filed requesting that the minor children be permitted to intervene as parties either in the prior dissolution proceeding or in this postjudgment modification of support proceeding. On November 15,1993, the trial court granted the defendant’s motion, ordering that the child support be reduced to zero. The order was made retroactive to September 16, 1993.

Counsel for the children appealed on December 6, 1993, challenging the granting of the defendant’s motion for modification of child support. The minor children, through counsel, claim that the trial court improperly (1) refused to permit their counsel to participate in the defendant’s modification hearing, and (2) failed to consider the proper statutory criteria.

As a preliminary matter, we must determine whether this appeal is properly before us as brought by counsel for the minor children, acting only in that capacity and not as a guardian ad litem or a next friend. On January 26,1994, the defendant moved to dismiss the appeal claiming that this court lacked subject matter jurisdiction. He contended that the minor children lacked standing to appeal, as they were not parties to the dissolution action and that, due to their status as minors, they could appeal only through a guardian or next friend. On February 15, 1994, counsel for the minor children filed an untimely objection to the motion to dismiss. The defendant’s motion to dismiss was denied without prejudice to being raised at oral argument. The parties were ordered to file supplemental briefs and to be prepared to argue the question of standing.

Limitations and restrictions often may be imposed on the activities of minor children because of their lack of mature judgment. Children, like incompetents, do not have the legal capacity to bring actions in their own names, but may do so only through an authorized representative. “The law does not deprive a person adjudicated incompetent of access to the courts . . . rather, provision is made to ensure that such interests are well represented.” Cottrell v. Connecticut Bank & Trust Co., 175 Conn. 257, 261, 398 A.2d 834 (1978). “[T]he purpose of providing representation is to ensure that the legal disability imposed will not undermine adequate protection of a ward’s interest.” Id., 264.

In the context of a dissolution proceeding, the interests of minor children may be protected pursuant to General Statutes § 46b-54 (a), which states, “[t]he court may appoint counsel for any minor child or children of either or both parties at any time after the return day of a complaint under section 46b-45, if the court deems it to be in the best interests of the child or children.” Once appointed, counsel for the child or children “shall be heard on all matters pertaining to the interests of any child, including the custody, care, support, education and visitation of the child, so long as the court deems such representation to be in the best interests of the child.” General Statutes § 46b-54 (c). It is not disputed that the interests of the children are represented by appointed counsel at the discretion of the trial court.

The minor children, while claiming an independent interest in the order granting child support, can point to no authority that would permit them to prosecute this action in their own names, without either the appointment of a guardian ad litem, or through a next friend or prochein ami. “It is well established that a child may bring a civil action only by a guardian or next friend . . . .” Orsi v. Senatore, 230 Conn. 459, 466, 645 A.2d 986 (1994). Actions and appeals maybe commenced by an infant only by a guardian ad litem or by a next friend. Williams v. Cleveland, 76 Conn. 426, 432, 56 A. 850 (1904).

Counsel for the minor children concedes that she was never appointed as guardian ad litem for the children pursuant to General Statutes § 45a-132, nor did she commence this appeal, or declare her intention to appear and prosecute this appeal as a next friend of the children. To serve as next friend, “no previous appointment by the court is required, and the prochein ami named in the writ is permitted to appear and prosecute in the infant’s name, though if [the next friend] is not a proper person or fails to properly discharge his duties, the court may remove him and appoint another person in his place.” McCarrick v. Kealy, 70 Conn. 642, 646, 40 A. 603 (1898). Without a clear expression of the capacity in which counsel for the minor children initiates the action, her fitness in that role cannot be properly determined. The role of counsel for the child, in some circumstances, may be incompatible with that of guardian ad litem or next friend. Counsel for the minor children admits that the best interests of the child may sometimes conflict with the expressed wishes of the child, which the child’s attorney, as a zealous advocate, would probably be bound to pursue. This appeal, brought in the name of the minor children, without a next friend or the appointment of a guardian ad litem, is improper.

We note that the bringing of an action for the minor child without the aid of a next friend or guardian ad litem is “an amendable irregularity which could be waived.” Collins v. York, 159 Conn. 150, 154, 267 A.2d 668 (1970). The defendant in this case, however, has not waived his objection. In addition, “[a] litigant cannot wholly ignore established procedures for the protection of [its] rights . . . and hope to receive on appeal the same treatment accorded to those who follow the rules of practice.” (Internal quotation marks omitted.) Rostenberg-Doern Co. v. Weiner, 17 Conn. App. 294, 302, 552 A.2d 827 (1989). We will not “entirely disregard the established rules of procedure, adherence to which is necessary so that the parties may know their rights and the real issues in controversy may be presented and determined.” (Emphasis added.) Cersosimo v. Cersosimo, 188 Conn. 385, 393, 449 A.2d 1026 (1982). The record does not suggest any consideration that would require us to disregard the procedural defect.

Our Supreme Court has stated that a procedure initiated to protect the interest of an incompetent or a child should not be utilized to hinder that person in obtaining a review of any action involving his rights. Cottrell v. Connecticut Bank & Trust Co., supra, 175 Conn. 264-65. The court in Cottrell, noting “that the legal disability of an incompetent is analogous to that of a minor”; id., 264; held that a child could bring an action by a next friend even when that child already had a guardian ad litem. There is no indication therein, however, that a minor child may bring an action or prosecute an appeal without either a next friend or an appointed guardian ad litem. The court in Cottrell held that the trial court was not in error in sustaining the defendant’s plea in abatement since the plaintiff did not bring her appeal to the Superior Court either by guardian ad litem or by next friend. Id., 265. A minor may bring a civil action only by a guardian or next friend. Orsi v. Senatore, supra, 230 Conn. 466; Collins v. York, supra, 159 Conn. 153; Lametta v. Connecticut Light & Power Co., 139 Conn. 218, 220, 92 A.2d 731 (1952); Tulin v. Tulin, 124 Conn. 518, 522, 200 A. 819 (1938). We conclude that this appeal has not been brought properly because court-appointed counsel cannot prosecute this appeal on behalf of the children. Consequently, we do not reach the issue of whether the children were aggrieved by the decision determining their support and whether they were, or must be, parties to the action in order to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       The defendant also raised several policy concerns. He argued that an appeal such as this pits the children against the parents, violating the doctrine of parental immunity. Further, he raised the question of the cost of appellate adjudication, contending that the parents’ financial resources are already strained and to require the payment of counsel fees for the minor children to appeal would be unduly burdensome.

       Legal disability of an incompetent is analogous to that of a minor. See Brown v. Eggleston, 53 Conn. 110, 119, 2 A. 321 (1885).

       General Statutes § 45a-132 provides: “appointment of guardian ad LITEM FOR MINORS AND INCOMPETENT, UNDETERMINED AND UNBORN PERSONS. (a) In any proceeding before a court of probate or the superior court including the family support magistrate division, whether acting upon an appeal from probate or otherwise, the judge or magistrate may appoint a guardian ad litem for any minor or incompetent, undetermined or unborn person, or may appoint one guardian ad litem for two or more of such minors or incompetent, undetermined or unborn persons, if it appears to the judge or magistrate that one or more persons as individuals, or as members of a designated class or otherwise, have or may have an interest in the proceedings, and that one or more of them are minors, incompetent persons or persons undetermined or unborn at the time of the proceeding.
      “(b) The appointment shall not be mandatory, but shall be within the discretion of the judge or magistrate.
      “(c) Any order or decree passed or action taken in any such proceeding shall affect all the minors, incompetent persons or persons thereafter born or determined for whom the guardian ad litem has been appointed, in the same manner as if they had been of the age of majority and competent and present in court after legal notice at the time of the action or the issuance of the order or decree.
      “(d) Any appointment of a guardian ad litem may be made with or without notice and, if it appears to the judge or magistrate that it is for the best interests of a minor having a parent or guardian to have as guardian ad litem some person other than the parent or guardian, the judge or magistrate may appoint a disinterested person to be the guardian ad litem.
      “(e) When the appointment is made in connection with the settlement of a decedent’s estate or the settlement of the account of a trustee or other fiduciary, the person so appointed shall be authorized to represent the minor or incompetent, undetermined or unborn person in all proceedings for the settlement of the estate or account and subsequent accounts of the trustee or other fiduciary, or until his appointment is terminated by death, resignation or removal.
      “(f) The guardian ad litem may be removed by the judge or magistrate which appointed him, without notice, whenever it appears to the judge or magistrate to be in the best interests of the ward or wards of the guardian.
      “(g) Any guardian ad litem appointed under the provisions of this section may be allowed reasonable compensation by the judge or magistrate appointing him and shall be paid as a part of the expenses of administration.”

       Our Supreme Court has noted that representing the interests of a child creates practical problems for an attorney and difficulties in delineating the obligations and limitations of the role of counsel. Knock v. Knock, 224 Conn. 776, 791, 621 A.2d 267 (1993).