source: Caselaw Access Project

author: PALMER, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JULIUS MARSHALL
    (SC 15717)
    Callahan, C. X, and Norcott, Katz, Palmer and Peters, Js.

      Argued April 22
    officially released September 8, 1998

      Pamela S. Nagy, assistant public defender, for the appellant (defendant).

      Robert J. Scheinblum, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, John M. Massameno, senior assistant state’s attorney, and David Scanned, legal intern, for the appellee (state).
   Opinion

PALMER, J.

After a jury trial, the defendant, Julius Marshall, was convicted of two counts of sexual assault in the first degree in violation of General Statutes (Rev. to 1991) § 53a-70 (a) (2), and two counts of risk of injury to a child in violation of General Statutes (Rev. to 1991) § 53-21. The trial court rendered judgment in accordance with the guilty verdict, and the defendant appealed from the judgment of the trial court to the Appellate Court, which affirmed his convictions. State v. Marshall, 45 Conn. App. 66, 694 A.2d 816 (1997).

We granted the defendant’s petition for certification limited to the following issue: “Whether the Appellate Court properly held that the trial court’s admission of the two videotapes of the accusing child witness and the testimony of the six other witnesses as constancy of accusation evidence was proper?” State v. Marshall, 241 Conn. 925, 697 A.2d 361 (1997). We conclude that the admission of the two videotapes constituted harmful error and, accordingly, we reverse the judgment of the Appellate Court.

The relevant factual and procedural history is undisputed. The defendant was charged with first degree sexual assault and risk of injury to a child after an investigation indicated that the defendant had engaged in sexual acts with his daughter (victim), between August, 1991, and September, 1992, at the family home in Bloomfield. The victim was two and one-half years old at the time she first made the allegations of sexual abuse that ultimately led to the charges against the defendant. At the time of trial, the victim was approximately four and one-half years old.

Prior to trial, the state moved for permission to allow the victim to testify by videotape and out of the presence of the defendant in accordance with the principles enunciated by this court in State v. Jarzbek, 204 Conn. 683, 704-705, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988). In support of its motion, the state introduced the testimony of Bruce Freedman, a clinical psychologist, who indicated that the victim’s testimony would be “absolutely unreliable” if she were required to testify in the courtroom in the presence of the defendant. In opposition to the motion, the defendant elicited testimony from the victim’s mother, who expressed the opinion that her daughter would not be intimidated by the defendant and that she never had exhibited any sign of being fearful of the defendant. The trial court granted the state’s Jarzbek motion and allowed the victim to testify on videotape, outside of the defendant’s presence, subject to full cross-examination by the defendant’s attorney. The defendant was allowed to view the child’s testimony on a television monitor in an adjoining courtroom.

On Friday, September 16,1994, while the parties and the court were setting the parameters for the victim’s videotaped trial testimony, the senior assistant state’s attorney assigned to try the case for the state notified the court that he had conducted two videotaped interviews of the victim, one on August 18, 1994, and a second one on September 2, 1994, in preparation for trial. The state also informed the court that it intended to use these two videotapes to refresh the victim’s recollection, if necessary, and, in addition, that it would offer the videotapes as substantive evidence under State v. Whelan, 200 Conn. 743, 754 n.9, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986) (prior inconsistent statements admissible for substantive purposes if adequate indicia of reliability present), in the event that the victim’s testimony was inconsistent with her Jarzbek testimony.

After the parameters for the videotaping of the 'victim’s Jarzbek testimony had been established, she testified, in pertinent part, that her father had touched her on her buttocks with his tongue and with his hand and that this had occurred downstairs in her parents’ house. Initially, she denied that her father had touched any other private part of her body. In an effort to refresh her recollection, the state showed her one of the videotaped interviews that had been conducted in preparation for trial. In that interview, the victim had indicated that her father had touched her vaginal area. After viewing the videotape, the victim acknowledged that the defendant had, in fact, touched her vaginal area.

On cross-examination, the victim denied that she had ever been alone with the defendant or that he had ever touched her. On redirect, the victim stated that she had told the truth when she testified that her father had touched her with his hand and with his tongue on a private part of her body and that it was hard to talk about the incident. On recross, the victim stated that she had not told the truth when she stated during her cross-examination that her father had not touched her. When defense counsel asked her what was true, she replied, “I don’t know.”

The state introduced into evidence, without objection, diagrams of the posterior of a female figure and the front of a male figure that the victim had marked during the course of her Jarzbek testimony to describe the alleged sexual conduct by her father. The state also introduced into evidence, without objection, two diagrams that the victim had marked during her August 18 interview, which also were used during her Jarzbek testimony to refresh her recollection.

The state then sought to introduce portions of the videotape of the victim’s August 18 interview as substantive evidence under State v. Whelan, supra, 200 Conn. 743. The trial court rejected the state’s claim of admissibility under Whelan, stating that the victim had been allowed to view the videotape during her Jarzbek testimony only for the purpose of refreshing her recollection.

When the court next convened on September 19, 1994, and shortly before the videotape of the victim’s Jarzbek testimony was to be played for the jury, the defendant moved to preclude the jury from viewing that portion of the videotape of the Jarzbek testimony during which she had watched the videotape of her August 18 interview for the purpose of refreshing her recollection. The contents of the videotape of the August 18 interview were visible and audible on the videotape containing the victim’s Jarzbek testimony. The state objected, asserting that the videotape of the August 18 interview would be “clearly admissible” under the constancy of accusation doctrine. The court granted the defendant’s motion, reiterating that the videotape of the August 18 interview had been allowed only to refresh the victim’s recollection. The court ordered that when the videotape of the victim’s Jarzbek testimony reached the point at which the videotape of the August 18 interview would be visible and audible, the sound would be turned off and the monitor would be turned away from the jury so that the jurors would not see or hear the August 18 interview. The videotape of the victim’s Jarzbek testimony then was played for the jury in accordance with the trial court’s ruling.

After the state had adduced constancy of accusation testimony from Abioseh Cole, a pastor and family counselor, and Deborah Espittia, a social worker with the state department of children and families, the state presented the testimony of Delrosa DelSol, the victim’s maternal grandmother. During DelSol’s testimony, the state offered, as full exhibits, the videotapes of the August 18, 1994 and September 2, 1994 interviews as constancy of accusation evidence. The defendant objected to the admissibility of both videotapes, asserting that the victim’s statements, made two years after the crimes allegedly were committed and during prearranged interviews with the senior assistant state’s attorney assigned to the case, and shortly before and in preparation for trial, were not admissible under the constancy of accusation doctrine. The trial court overruled the defendant’s objections and allowed both tapes to be played for the jury.

After DelSol’s testimony, the state adduced additional constancy of accusation testimony from Detective Peter Crombie of the Bloomfield police department, Anne Flanagan, a social worker at the Village for Families and Children, and Freedman, the clinical psychologist. At the conclusion of the state’s case, the defendant testified in his own behalf, and also presented the testimony of his wife and three character witnesses. The jury found the defendant guilty as charged.

On appeal to the Appellate Court, the defendant claimed, inter alia, that the trial court should not have permitted the state to introduce into evidence, under the constancy of accusation doctrine, the two videotaped interviews of the victim conducted by the senior assistant state’s attorney. The defendant claimed that both the temporal proximity of the interviews to the trial and the fact that the interviews had been conducted by the state in preparation for trial precluded the state’s use of the videotaped interviews as constancy of accusation evidence. The Appellate Court rejected the defendant’s claims, concluding that: (1) the timing of the statements was a matter for the jury to weigh; and (2) videotaped interviews of victims are proper constancy of accusation evidence. State v. Marshall, supra, 45 Conn. App. 74-75.

Although we agree that the timing of constancy of accusation statements generally is a matter for the jury to consider in evaluating the evidence; see State v. Parris, 219 Conn. 283, 292, 592 A.2d 943 (1991); we do not agree that a videotaped interview conducted by the senior assistant state’s attorney for the purpose of preparing a sexual assault victim for trial is admissible under the constancy of accusation doctrine. Because we also conclude that this error was harmful, we reverse the judgment of the Appellate Court.

In modifying our constancy of accusation doctrine in State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996), to limit such evidence to the fact and the timing of the complaint; see footnote 9 of this opinion; we reviewed the history of the doctrine, “which traces its roots to the ‘fresh complaint’ rule.” Id., 294. “This court expressly adopted the fresh complaint doctrine in State v. De Wolf, 8 Conn. 93, 100 (1830), in which we stated that ‘on an indictment for rape . . . such evidence is received to shew constancy in the declarations of the witness. If a female testifies, that such an outrage has been committed on her person, an enquiry is, at once, suggested, why it was not communicated to her female friends.’ . . . Forty-six years later, in State v. Kinney, 44 Conn. 153 (1876), we expanded the rule to permit the state to introduce testimony concerning the details of the complaint. We explained our reason for doing so as follows: ‘Why has the rule been adopted that in prosecutions for rape . . . the public prosecutor may show that the woman on whom the assault was made complained of it to her friends? It is simply because such a course would be natural if the crime had been committed, but very unnatural if it had not been. But her natural impulses would prompt her to tell all the details of the transaction. Why, on the same principle, ought not her statement of the details to be evidence? If her story were untrue, the greater would be the opportunity for detection, and the accused would be helped in his defense. If her story were true, the evidence would show constancy in the charge even to the details, and the truth would the more clearly appear.’ Id., 156-57. This extension of the fresh complaint rule became known as the constancy of accusation doctrine.” (Emphasis in original.) State v. Troupe, supra, 297.

Before modifying the doctrine in Troupe, we allowed “the state to introduce the fact . . . and . . . details of the complaint once the victim [had] testified regarding the alleged sexual assault and the identity of the person or persons to whom a complaint had been made.” Id. Such evidence was admitted not for substantive purposes, but only to corroborate the trial testimony of the victim. See id., 304. The admissibility of the constancy evidence also was “[s]ubject to a determination by the trial court that the proffered evidence [was] more probative than prejudicial . . . .” Id., 297-98. Additionally, “the complaint need not have been made promptly after the commission of the alleged offense; any delay in reporting [was] to be considered by the fact finder in evaluating the weight of the constancy of accusation testimony.” Id., 298; see State v. Parris, supra, 219 Conn. 291 (“[w]hatever delay took place between the time of the attack and the time the victim first told witnesses of it does not affect the admissibility of the evidence, but merely presents a question of fact for the trier as to the weight to be given it” [internal quotation marks omitted]); State v. Brigandi, 186 Conn. 521, 529, 442 A.2d 927 (1982) (same). Within these bounds, many types of witnesses, including police officers, have been allowed to provide constancy of accusation evidence. See, e.g., State v. Kish, 186 Conn. 757, 769, 443 A.2d 1274 (1982) (constancy testimony by neighbor, doctor and police officers); State v. Brigandi, supra, 525, 528 (constancy testimony by police officers, mother-in-law and social worker); State v. Greene, 161 Conn. 291, 294, 287 A.2d 386 (1971) (constancy testimony by mother, grandmother, sister-in-law and teacher); State v. Zoravali, 34 Conn. App. 428, 430 n.3, 440, 641 A.2d 796, cert. denied, 230 Conn. 906, 644 A.2d 921 (1994) (constancy testimony by police officers, social workers and nurse).

We agree with the state that the mere fact that a sexual assault victim does not report the assault until some period of time after its occurrence does not, by itself, render the victim’s report inadmissible under the constancy of accusation doctrine. See, e.g., State v. Parris, supra, 219 Conn. 291. From its inception, the underlying purpose of the doctrine has been to combat prejudiced notions about the credibility of sexual assault victims by allowing the state to demonstrate that the victim had reported the assault to persons in whom she naturally would confide. State v. Kinney, supra, 44 Conn. 156. Thus, although the doctrine allows the state to use prior statements by a sexual assault victim “to protect against the unwarranted, but nonetheless persistent, view that a sexual assault victim who does not report the crime cannot be trusted to testify truthfully about the incident”; State v. Troupe, supra, 237 Conn. 303; we never have extended the scope of the doctrine to include statements given by the victim to a prosecutor in preparation for trial. To do so would allow the state to create evidence on the eve of trial for the purpose of bolstering the victim’s credibility.

The state relies heavily on our decision in State v. DePastino, 228 Conn. 552, 638 A.2d 578 (1994), to support its contention that the two videotaped interviews were properly introduced into evidence under the constancy of accusation doctrine. In DePastino, we concluded that the trial court did not abuse its discretion by allowing the state to admit, as constancy of accusation evidence, a videotaped interview of a child sexual assault victim conducted by a social worker assigned to investigate the case by the department of children and youth services, now the department of children and families. Id., 568-69. Adopting the reasoning of State v. Bethea, 24 Conn. App. 13, 20-21, 585 A.2d 1235, cert. denied, 218 Conn. 901, 588 A.2d 1076 (1991) (tape-recorded statements given to police on night of sexual assault admitted as constancy of accusation evidence), we concluded that videotaped interviews of sexual assault victims properly may be admitted as constancy of accusation evidence. State v. DePastino, supra, 568-69. Contrary to the state’s assertion, however, an interview of a sexual assault victim conducted by a representative of an agency responsible both for investigating the assault and for assisting and counseling the victim — and in whom the victim therefore is likely to confide — is entirely different from a pretrial interview conducted by a prosecutor for the purpose of preparing the victim for trial.

The use of evidence created by the state in preparation for trial does not further the goal of the constancy of accusation doctrine, namely, to combat the biases that certain jurors may have regarding the credibility of those who allege that they have been the victim of a sexual assault. Although we have allowed juries to consider the testimony of people, such as police officers, social workers, friends, family members and coworkers, to whom the victim has related his or her allegations, so that the jury may fairly assess the credibility of the victim’s trial testimony, we have allowed this evidence on the theory that complaints to such persons “would be natural if the crime had been committed, but very unnatural if it had not been.” State v. Kinney, supra, 44 Conn. 156.

This rationale is inapplicable to the pretrial interviews conducted by the senior assistant state’s attorney in this case. These interviews occurred long after the victim had come forward with her allegations, long after the police had completed their investigation of the offenses and long after the state had formally charged the defendant with the crimes. Moreover, the interviews were initiated not by the victim, but by the state, on the eve of trial, solely for the purpose of assisting the state in its preparation for trial. Were we to accept the state’s claim of admissibility, the state, as a routine matter, would be able to arrange a series of videotaped interviews with a sexual assault victim shortly before trial, ask the victim to repeat her story at each interview, and offer the videotapes into evidence to artificially enhance the victim’s credibility. We never have allowed the use of such evidence under the constancy of accusation doctrine, and we are unwilling to sanction its use for that purpose today. Quite simply, the state’s argument in support of the admissibility of the two videotaped interviews stretches the constancy of accusation doctrine beyond its breaking point.

We turn next to the question of whether the admission of the videotapes constituted harmful error entitling the defendant to a new trial. When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful. As we recently have noted, “we have not been fully consistent in our articulation of the standard for establishing harm.” State v. Shabazz, 246 Conn. 746, 759, 719 A.2d 440 (1998), cert. denied, 525 U.S. 1179, 119 S. Ct. 1116, 143 L. Ed. 2d 111 (1999). “One line of cases states that the defendant must establish ‘that it is more probable than not that the erroneous action of the court affected the result.’ . . . State v. McIntyre, 242 Conn. 318, 329, 699 A.2d 911 (1997); State v. Wilkes, 236 Conn. 176, 188, 671 A.2d 1296 (1996); State v. Cavell, 235 Conn. 711, 721-22, 670 A.2d 261 (1996).” State v. Shabazz, supra, 759. A second line of cases indicates that the defendant must show that the prejudice resulting from the impropriety was so substantial as to undermine confidence in the fairness of the verdict. See, e.g., State v. Askew, 245 Conn. 351, 371-72, 716 A.2d 36 (1998). We need not choose between these two formulations, nor need we decide whether there is any functional difference between them, because we conclude that, in the present case, the defendant has satisfied his burden under either formulation.

In her Jarzbek testimony, the victim indicated on direct examination that the defendant had touched her on her buttocks with his tongue and with his hand. She testified that it had felt bad and that she did not like it. She also testified that this contact had taken place downstairs in her parents’ house but that she did not know in which room it had occurred. When the victim was asked whether the defendant had touched her anywhere on her front, the victim said no. When the victim was shown anatomical diagrams of the front of a young girl that she previously had marked during one of her interviews to indicate where the defendant had touched her, she stated that she did not remember why she had made those markings. After the victim was shown the videotape of the August 18 interview to refresh her recollection, however, she indicated that her father also had touched her on her front.

On cross-examination, the victim denied that she had ever heard of the word “chim-chim,” a term several of the state’s constancy of accusation witnesses testified that the victim had used when referring to her vagina in connection with her complaints about the defendant. The victim, also testified that she did not know why she had marked the diagram of the young girl’s buttocks. When asked whether she had ever been licked by a cat, the victim responded that she had. When asked whether she liked it, she responded that she did not. When asked whether she was ever alone with her father, she responded that she was not. When asked whether her father had ever touched her, she stated that he had not.

Unlike her Jarzbek testimony, the victim’s statements during her two videotaped interviews with the senior assistant state’s attorney were much more definitive and provided more compelling evidence of the defendant’s guilt. Although those statements contained some inconsistencies, the victim made it clear in both of the interviews that the defendant had touched her in more than one private place. In neither interview did the victim waver on whether any improper touching had taken place. In the August 18 interview, she stated that her father had touched her with his finger in a private place while at their house, that she did not like it, and that it had made her very mad. In the September 2 interview, the victim indicated that the defendant had touched her on her buttocks with his tongue and that she did not like it. She then indicated that she did not want to talk about the subject any more. The interview ceased shortly thereafter.

In light of the foregoing, we are persuaded that it is likely that the improper introduction into evidence of the two videotaped interviews caused the defendant substantial prejudice and probably affected the verdict. The principal evidence inculpating the defendant was the victim’s Jarzbek testimony, during which she wavered on when and what had occurred, even in response to leading questions, and seemed to tailor her answers to please the party asking the questions. Although, as we have indicated, the victim reaffirmed on redirect examination certain inculpatory testimony that the state had elicited from her on direct examination, her version of the facts was materially different on cross-examination, during which she exculpated the defendant. Thus, the victim’s credibility was on less than solid ground. Moreover, even assuming that the testimony of each of the six other constancy witnesses was properly admitted to corroborate the victim’s Jarzbek testimony, we believe that allowing the jury to see and hear the victim relate her story to the senior assistant state’s attorney two additional times immediately before trial, and without the opportunity for cross-examination, created a grave risk of prejudice to the defendant. See State v. Gould, 241 Conn. 1, 14, 695 A.2d 1022 (1997) (noting that videotaped testimony of child victims of sexual abuse may “engender . . . passion, animation or sympathy”). Accordingly, we are persuaded that the defendant has met his burden of showing harmful error, thereby entitling him to a new trial.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the trial court for a new trial.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1991) § 53a-70 provides in relevantpart: “Sexual assault in the first degree: Class B felony: One year not suspendable. (a) A person is guilty of sexual assault in the first degree when such person . . . (2) engages in sexual intercourse with a person under thirteen years of age.
      “(b) Sexual assault in the first degree is a class B felony for which one year of the sentence imposed may not be suspended or reduced by the court. ”
      Hereafter, all references to § 53a-70 are to the 1991 revision.

       General Statutes (Rev. to 1991) § 53-21 provides: “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 are 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.”
      Public Acts 1995, No. 95-142, § 1, incorporated amendments to § 53-21 that are not relevant to this appeal. Hereafter, all references to § 53-21 are to the 1991 revision.

       The trial court sentenced the defendant to a total effective term of imprisonment of eighteen years.

       Consequently, we do not consider the defendant’s claim regarding the introduction into evidence of the testimony of the six other constancy of accusation witnesses.

       The first count of the four count information alleged that the defendant had performed cunnilingus on the victim sometime between August, 1991, and September, 1992, in violation of § 53a-70 (a) (2). The second count, which alleged the same conduct as the first count, charged the defendant with violating § 53-21. The third count of the information alleged that the defendant had violated § 53a-70 (a) (2) by placing his finger into the victim’s vagina or anus sometime between August, 1991, and September, 1992. The fourth count, which alleged the same conduct as the third count, charged the defendant with having violated § 53-21.

       In State v. Jarzbek, supra, 204 Conn. 683, we concluded that, “in criminal prosecutions involving the alleged sexual abuse of children of tender years, the practice of videotaping the [trial] testimony of a minor victim outside the physical presence of the defendant is, in appropriate circumstances, constitutionally permissible. ... [A] trial court must balance [in a case-by-case analysis] the individual defendant’s right of confrontation against the interest of the state in obtaining reliable testimony from the particular minor victim in question. . . . [The] trial court must determine, at an evidentiary hearing, whether the state has demonstrated a compelling need for excluding the defendant from the witness room during the videotaping of a minor victim’s testimony. In order to satisfy its burden of proving compelling need, the state must show that the minor victim would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that the trustworthiness of the victim’s testimony would be seriously called into question. . . . [T]he state bears the burden of proving such compelling need by clear and convincing evidence.” (Citation omitted.) Id., 704-705.

       On appeal to the Appellate Court, the defendant challenged the decision of the trial court allowing the victim to testify under Jarzbek. The Appellate Court rejected the defendant’s claim. State v. Marshall, supra, 45 Conn. App. 70-72. That issue was not certified for review by this court.

       In order to distinguish the victim’s videotaped trial testimony from the two videotaped interviews conducted by the senior assistant state’s attorney shortly before trial, we refer to the former as the victim’s Jarzbek testimony.

       “The constancy of accusation doctrine is well established in Connecticut and recently has been reaffirmed by this court. See State v. Troupe, 237 Conn. 284, 297-98, 303-304, 677 A.2d 917 (1996); State v. Kelley, 229 Conn. 557, 565, 643 A.2d 854 (1994); State v. Dabkowski, 199 Conn. 193, 199-203, 506 A.2d 118 (1986). The doctrine originally was premised on the arguably inaccurate premise that, if a woman had been sexually assaulted, it would be ‘natural’ for her to confide in others. See, e.g., State v. De Wolf, 8 Conn. 93, 99 (1830). Until State v. Troupe, supra, 304, we permitted witnesses to testify about the details of a victim’s accounts of the alleged sexual assault on the theory that, if the victim’s story were true, ‘the evidence would show constancy in the charge even to the details, and the truth would the more clearly appear.’ State v. Kinney, 44 Conn. 153, 156-57 (1876); State v. De

        Wolf, supra, 99. In State v. Troupe, supra, 284, however, we restricted the doctrine so that a constancy of accusation witness could testily only to the fact and the timing of the victim’s complaint. Even so limited, the evidence would be admissible solely for corroboration of the victim’s testimony, and not for substantive purposes. Id., 304.” State v. Sullivan, 244 Conn. 640, 645, 712 A.2d 919 (1998). We also noted in Troupe that “the defendant, on cross-examination of a constancy witness, may elicit details of the victim’s complaint for the purpose of demonstrating inconsistencies between the victim’s trial testimony about the sexual assault and the victim’s report of the incident. In such cases, the effect of our modification of the constancy of accusation doctrine is merely to shift the timing of the introduction into evidence of the details.” State v. Troupe, supra, 304 n.19. The present case was tried before the release of our decision in Troupe, the holding of which is applicable “only to those cases in which constancy of accusation testimony [had] not yet been admitted into evidence on the date of the publication of [the Troupe] opinion.” Id., 305.

       DelSol had accompanied the victim to these interviews.

       The state’s case also included testimony from several other witnesses, including Frederick Berrien, a physician and expert on child sexual abuse, who had examined the victim. On the basis of Berrien’s testimony regarding the condition of the victim’s vaginal area, the jury reasonably could have concluded that the victim had been sexually abused.

       Although the defendant denied any sexual contact with the victim, he did not contest the fact that she had been sexually abused.

       The social worker’s interview of the victim was videotaped so that the police would not have to interview the victim a second time. State v. DePastino, supra, 228 Conn. 568-69.

       The victim’s mother testified that when the victim originally made the allegations about the defendant licking her, the victim also had referred to a cat. In addition, Freedman, the clinical psychologist who had interviewed the victim, testified that she originally told him that the cat, rather than the defendant, had hurt her bottom. Upon further questioning by Freedman, the victim indicated that it had been the defendant who had licked her bottom.

       As we indicated earlier in this opinion, however, the victim’s testimony on redirect examination tended to reaffirm her testimony on direct examination, which served to inculpate the defendant.

       The testimony of the six constancy of accusation witnesses was admitted only to corroborate the victim’s Jarzbek testimony and not for substantive purposes. See State v. Troupe, supra, 237 Conn. 304. Moreover, although each of the six witnesses testified that the victim had reported inappropriate sexual contact by the defendant, the victim’s reports were not uniform.

       At the new trial, the limitation on the constancy of accusation doctrine that we adopted in State v. Troupe, supra, 237 Conn. 304, will be applicable. See id., 305; see also footnote 9 of this opinion.


author: PETERS, J. BERDON, J.,

text:
    ABINGTON LIMITED PARTNERSHIP v. BRUCE G. HEUBLEIN ET AL.
    (SC 15639)
    Berdon, Katz, Palmer, McDonald and Peters, Js.

      Argued December 9, 1997
    officially released September 8, 1998

      Jeffrey J. Mirman, with whom were Wesley W. Horton and, on the brief, Lisa A. Zaccardelli, for the appellant (plaintiff).

      Everett E. Newton, with whom were Sean P. Clark, Linda L. Morkan, Dennis F. Kerrigan, Jr., David A. Baram and Brian J. Comerford, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Barry J. Waters, for the appellees (defendant Talcott Mountain Science Center for Student Involvement, Inc., et al.).

      Brendan T. Flynn, with whom, on the brief, were Donald Gaudreau and Jonathan M. Starble, for the appellee (defendant Katherine Vidal Smith).
   Opinion

PETERS, J.

The underlying issue in this case is whether, as a result of the creation of an easement appurtenant granting a right of access over the property of the servient estate, the servient estate also must afford access to adjacent property that was acquired thereafter. In this appeal, however, the first and dispositive issue is whether the trial court judge properly denied a motion for his disqualification in light of the judge’s ex parte visit to the property that was the subject of the dispute. Because we conclude that disqualification was required under the circumstances of this case, we reverse the judgment of the trial court and remand the case for a new trial.

The plaintiff, Abington Limited Partnership, the fee owner of a private roadway called Montevideo Road, brought a six count action to quiet title and to remedy an alleged overburdening of an easement of access over its roadway. The defendant Talcott Mountain Science Center for Student Involvement, Inc. (Science Center), acknowledged the use of Montevideo Road but claimed, for various reasons, that the use was rightful. After a court trial, the court, Satter, J., agreed with the defendants on their principal claims and denied the plaintiffs prayer for injunctive relief. The plaintiffs appeal to the Appellate Court was transferred to this court pursuant to Practice Book § 65-1, formerly § 4023, and General Statutes § 51-199 (c).

I

The dispositive legal issue in this case is whether the trial judge improperly denied a motion for his disqualification' based upon his ex parte visit to the site of the property directly involved in the litigation before him. Although the judge acknowledged that the visit had been imprudent, he declined to recuse himself. We must decide whether, in the circumstances of this case, the trial judge’s imprudence created an appearance of impropriety that required his recusal. We conclude that it did.

At trial, the plaintiff raised two claims in support of its motion for disqualification. The first was that the judge’s visit had violated canon 3 (a) (4) of the Code of Judicial Conduct because the judge, in effect, had conducted an improper ex parte investigation of facts disputed at trial. The second was that the judge’s visit had violated canon 3 (c) (1) of the Code of Judicial Conduct because, whatever its actual import might have been, it created an appearance of judicial impropriety. We disagree with the first of these claims, but agree with the second.

A

Although the plaintiff claims that the judge’s visit constituted an improper independent investigation of the facts of the case in violation of canon 3 (a) (4), the plaintiff made no attempt, at trial or on appeal to this court, to demonstrate that the judge’s independent observations differed from those gleaned from prior visits with counsel present. Nothing in the record demonstrates that the judge drew on independent knowledge in deciding this case. If the information he gleaned could have had any influence, it would have redounded in favor of the plaintiff. The plaintiff has not taken issue with the fairness of any of the judge’s evidentiary rulings at trial. It would be surprising if it were otherwise, because the judge has had a long and widely admired career as a conscientious and fair minded judge of the Superior Court and as a judge trial referee. We conclude that the judge did not violate canon 3 (a) (4).

B

The plaintiff also claims that the judge’s ex parte visit, regardless of its propriety under canon 3 (a) (4), violated the judge’s duty, under canon 3 (c) (1), to avoid an appearance of impropriety. In analyzing this ground for disqualification, we emphasize the fundamental distinction between a claim of bias and a claim of an appearance of impropriety. Canon 3 (c) (1) provides in relevant part: “A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (A) the judge has . . . personal knowledge of disputed evidentiary facts concerning the proceeding . . . .” To prevail on its claim of a violation of this canon, the plaintiff need not show actual bias. The plaintiff has met its burden if it can prove that the conduct in question gave rise to a reasonable appearance of impropriety.

We use an objective rather than a subjective standard in deciding whether there has been a violation of canon 3 (c) (1). “Any conduct that would lead a reasonable [person] knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned is a basis for the judge’s disqualification. Thus, an impropriety or the appearance of impropriety . . . that would reasonably lead one to question the judge’s impartiality in a given proceeding clearly falls within the scope of the general standard .... The question is not whether the judge is impartial in fact. It is simply whether another, not knowing whether or not the judge is actually impartial, might reasonably question his . . . impartiality, on the basis of all of the circumstances. ...” (Citations omitted; internal quotation marks omitted.) Papa v. New Haven Federation of Teachers, 186 Conn. 725, 745-46, 444 A.2d 196 (1982); Dubaldo v. Dubaldo, 14 Conn. App. 645, 649, 542 A.2d 750 (1988).

The relevant facts and procedural history are undisputed. On May 12, 1996, the trial court judge and his wife drove from Route 44 to Montevideo Road, using that private road to reach the entrance to the Science Center to look at the view. The Science Center is one of the defendants in this case, and the propriety and extent of its use of Montevideo Road to gain access to Route 44 are crucial issues in the litigation. At the time of the judge’s visit to the site, he already had begun to preside over the court trial of this case, which had commenced on March 28, 1996. In the presence of all the parties, the judge already had inspected the area twice. The judge did not notify counsel of his ex parte visit to the area.

When the judge arrived in the area, he observed a “For Sale” sign on a house across the way from the Science Center. At that time, the house was owned by James W. Tilney. Although neither the judge nor his wife had any intention of buying Tilney’s house, they knocked on Tilney’s door and indicated to him that they might be interested in such a purchase. Tilney showed them through his house and showed them the view. Without revealing his identify, the judge initiated a discussion with Tilney about the “legal issue” involving the Science Center. Tilney responded that, in his view, the Science Center had given the plaintiff the runaround. Only when the judge and his wife were leaving did the judge inform Tilney that he was the trial judge adjudicating this very legal issue.

The issue of impropriety came to light during the trial, when, on May 19, 1996, Tilney disclosed to the plaintiff the substance of his ex parte conversation with the judge. The plaintiff moved the trial court judge to disqualify himself and to declare a mistrial. The judge indicated his disinclination to do so, but allowed the plaintiff to present the Tilney testimony and, thereafter, granted the plaintiffs motion to have another judge of the Superior Court conduct an evidentiary hearing to determine the facts.

Pursuant to the procedural standards laid down in Szypula v. Szypula, 2 Conn. App. 650, 654-55, 482 A.2d 85 (1984), Judge Maloney undertook the necessary review. No new evidence was presented to him. He listened to the tapes of the trial court proceedings and considered the arguments of counsel. On that record, Judge Maloney determined that, because there was no dispute about the facts relevant to the trial court judge’s obligation to recuse himself, there was no basis for conducting an evidentiary hearing. Judge Maloney declined to rule on the ultimate issue of disqualification, which, in his view, was an issue for the trial court judge himself to decide.

In response to the plaintiffs motion for disqualification and mistrial, the trial judge candidly acknowledged, on the record, that “under the circumstances probably I shouldn’t have gone up there . . . .” Nonetheless, after having heard Tilney’s testimony and having received Judge Maloney’s decision, the judge denied the plaintiffs motion and, upon the conclusion of the trial, rendered judgment in favor of the defendants.

In evaluating whether, from an objective standpoint, these facts demonstrate a violation of canon 3 (c) (1), we start from two well established propositions concerning the appearance of judicial impropriety. Although stated separately, each proposition reenforces the other.

The first proposition is that the prevention of the appearance of impropriety is of vital importance to the judiciary and to the judicial process. Bonelli v. Bonelli, 214 Conn. 14, 19, 570 A.2d 189 (1990). “Members of the judiciary should be acutely aware that any action they take, whether on or off the bench, must be measured against exacting standards of scrutiny to the end that public perception of the integrity of the judiciary will be preserved .... There must also be a recognition that any actions undertaken in the public sphere reflect, whether designedly or not, upon the prestige of the judiciary. . . . Judges must assiduously avoid those contacts which might create even the appearance of impropriety.” (Citation omitted.) In the Matter of Lonschein, 50 N.Y.2d 569, 572, 408 N.E.2d 901, 430 N.Y.S.2d 571 (1980). “The duty to avoid creating an appearance of impropriety is one of taking ‘reasonable precautions’ to avoid having ‘a negative effect on the confidence of the thinking public in the administration of justice.’ In the Matter of Bonin, 375 Mass. 680 [707, 378 N.E.2d 669] (1978).” In re Inquiry Concerning a Judge, 788 P.2d 716, 723 (Alaska 1990); see also Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 859-61, 108 S. Ct. 2194, 100 L. Ed. 2d 855 (1988).

The second proposition is that an inquiry into disqualification of a judge requires a sensitive evaluation of all the facts and circumstances in order to determine whether a failure to disqualify the judge was an abuse of sound judicial discretion. Bonelli v. Bonelli, supra, 214 Conn. 22. In undertaking such an evaluation, we must be mindful of its intrinsic difficulties. “Judges who are asked to recuse themselves are reluctant to impugn their own standards. Likewise, judges sitting in review of others do not like to cast aspersions. ‘Yet drawing all inferences favorable to the honesty and care of the judge whose conduct has been questioned could collapse the appearance of impropriety standard . . . into a demand for proof of actual impropriety.’ ” United States v. Jordan, 49 F.3d 152, 157 (5th Cir. 1995).

The record in this case contains persuasive evidence of an appearance of impropriety under canon 3 (c) (1). Whether that evidence requires disqualification is an issue that, in the first instance, is left to the exercise of a trial judge’s discretion. Bonelli v. Bonelli, supra, 214 Conn. 22. Accordingly, our review ordinarily is limited to the question of whether a trial judge has abused his discretion. Id.

In this case, however, the record demonstrates that the judge failed to exercise the appropriate discretion. To support its motion for disqualification, the plaintiff repeatedly brought the provisions of canon 3 (c) (1) to the judge’s attention. The judge, nevertheless, based his ruling declining to recuse himself entirely on his determination that his ex parte site visit had not in fact caused him to be prejudiced in any way about the merits of the litigation. The issue under canon 3 (c) (1) is not, however, whether the judge was impartial in fact. Papa v. New Haven Federation of Teachers, supra, 186 Conn. 746. At no time did the judge focus his attention on, or exercise his discretion regarding, the correct issue, namely, whether his admittedly imprudent conduct might lead a reasonable observer, not knowing whether the judge actually is impartial, to question the judge’s impartiality. Id., 745-46.

Undertaking the plenary review that is required in the procedural posture of this case, we must decide whether the evidence of the judge’s ex parte site visit would have led an objective observer reasonably to doubt the judge’s impartiality. Looking at the undisputed facts, an objective observer would see a judge who: (1) during the course of a court trial returned for a personal visit to the property in dispute; (2) traveled to the property by use of a private road as if it were a public road, when the extent of the permissible use of the road was an issue at trial; (3) in the course of the visit to the property undertook a further viewing by gaining entrance to a private dwelling on pretextual grounds; (4) initiated a conversation with the owner of the dwelling about the litigation; (5) failed to end the conversation when the owner offered information regarding the litigation; (6) failed to disclose his identity as the trial judge until he was preparing to leave the premises; and (7) failed to inform trial counsel of his visit or of his conversation. An objective observer reasonably might have disregarded the possibility that the judge, in good faith, might have forgotten the particulars of his site visit or the conversation that had taken place there. “The judge’s lack of knowledge of a disqualifying circumstance . . . does not eliminate the risk that his impartiality might reasonably be questioned by other persons.” (Internal quotation marks omitted.) Liljeberg v. Health Services Acquisition Corp., supra, 486 U.S. 859. Considering the relevant factual showing in its entirety, we are persuaded that a well informed, thoughtful and objective observer reasonably could decide that there was, in this case, a significant risk of a judicial impropriety as defined by canon 3 (c) (1).

Although each case of alleged judicial impropriety must be evaluated on its own facts, the considerations that we have found decisive are similar to those articulated in cases in other jurisdictions. Some of the significant state court cases are reviewed in In re Inquiry Concerning a Judge, supra, 788 P.2d 722-23. At least since the decision of the United States Supreme Court in Liljeberg v. Health Services Acquisition Corp., supra, 486 U.S. 860-61, federal courts have ruled to the same effect. See, e.g., United States v. Jordan, supra, 49 F.3d 156-57.

Considering the totality of the circumstances of this case, we conclude, therefore, that the judge improperly decided that his conduct did not create an appearance of impropriety and improperly denied the plaintiffs motion for disqualification on that ground. It follows that the plaintiffs motion for a mistrial likewise was denied improperly. The case must be remanded for a new trial.

II

In light of the need for a retrial, we have decided to provide guidance regarding one of the underlying issues of law that this case presents. The parties, in their arguments in this court, have taken diametrically opposed positions about the circumstances, if any, in which the benefit of an easement can accrue to property that was acquired by the holder of the easement after the creation of the easement. One way of articulating their disagreement is to ask whether recognizing rights to an easement that purports to benefit after-acquired property would always, as a matter of law, overburden the use of the servient property.

We will address this question on the assumption of certain apparently undisputed facts. We do not intend thereby to foreclose the trial court from making different findings or to foreclose the parties from making different arguments that may affect the significance of this question. In addition to the issues that we have addressed in this appeal, we reemphasize that all issues of fact remain to be resolved anew on retrial.

For present purposes, we assume that the Science Center will continue to claim that it has a right of access over Montevideo Road because, inter alia, it derived its title from an easement that, in 1955, the federal government acquired first by condemnation and thereafter by quitclaim deeds. The government used the property as a NIKE missile site from 1955 to 1967. In a lease executed on the same day that the government received quitclaim deeds to the property, the government acquired the right to use adjacent land as a masking area.

The plaintiff does not deny that the 1955 easement is an easement appurtenant that entitles the Science Center to use Montevideo Road for access to the so-called “federal parcel.” What is in dispute is whether the Science Center may avail itself of the 1955 easement to access the area leased by the federal government, the so-called “masking area.” It is within the masking area that the Science Center has constructed a building containing administrative offices, classrooms, television studios and a planetarium. It currently uses both the federal parcel and the masking area to conduct its programs.

Assuming these to be the facts found on retrial, we will address three issues that are raised by the Science Center’s alleged right to access Montevideo Road for the benefit of those of its activities that are located on the masking area. We will consider: (1) whether after-acquired property is excluded, as a matter of law, from the right of access previously obtained by an easement appurtenant; (2) in the absence of a per se exclusion, what is the test for determining the extent of the easement; and (3) in applying the proper test, what factual showing is required to determine whether an extended easement overburdens the servitude created by the original easement.

Relying on Carbone v. Vigliotti, 222 Conn. 216, 610 A.2d 565 (1992), the trial court resolved these issues in favor of the easement owner. In Carbone, this court upheld the right of an easement holder who built a house on property that straddled the line between property that he had owned previously and property that he acquired subsequently. Id., 225. We held that “the mere addition of other land to the dominant estate does not constitute an overburden or misuse of the easement.” Id.

The plaintiff urges us to reconsider the validity of that holding, in light of an earlier case, Curtin v. Franchetti, 156 Conn. 387, 389, 242 A.2d 725 (1968) (adhering to common-law principle that easement may become legally attached to dominant estate “only if the same person has unity of title to both the way and the dominant estate”), or, at least, to limit Carbone to its facts. The Science Center, to the contrary, maintains not only that Carbone was decided properly, but also that it reflects the present day understanding of the law of easements and servitudes contained in the Restatement (Third) of Property, Servitudes. We agree with the Science Center.

It is important to clarify exactly what this court held in Carbone. We did not hold that an easement of access attaches automatically to after-acquired property. Indeed, we did not challenge the general rule that the default position is to the contrary. See Ozyck v. D’Atri, 206 Conn. 473, 479, 538 A.2d 697 (1988) (recognizing that there may be circumstances in which intent of original grantor in creating easement supersedes unity of title rule, but deferring reconsideration of Curtin). In Carbone, we also recognized, however, that, in some circumstances, the parties at the time of the creation of an easement may be found to have contemplated, as a matter of law, that its benefits might accrue to adjacent property that was not formally within the terms of the easement. Carbone v. Vigliotti, supra, 222 Conn. 225. The nub of our holding was to reject a bright-line rule that permitting adjacent after-acquired property to benefit from an easement of access automatically constitutes an overburden or misuse of the easement. Id. We adopted instead the principle that the construction of an easement requires inquiry into the intent of the parties when the easement was created. Id. To determine that intent, we held, a court reasonably may take into account the proposed use and the likely development of the dominant estate. Id., 224-25. Under no circumstances, however, could an easement be construed to encompass after acquired property if the result would be a material increase in the use of the servient property. Id., 225.

Carbone, therefore, answers both of the issues of law that we have decided to address at this time. We reaffirm its well reasoned holding and decline to limit its rulings to its particular facts.

Our reaffirmation of Carbone finds support in the recently approved provisions of the Restatement (Third) of Property, Servitudes. Those provisions adopt a contracts oriented view of the law of easements and servitudes. See Restatement (Third), Property, Servitudes (Tentative Draft No. 4) (1994), introduction, p. xvii. For example, § 2.1 of the Restatement (Third) provides that an easement and its accompanying servitude “may be created by contract or conveyance.” Section 2.2 of the Restatement (Third) provides in relevant part that “[a] contract or conveyance creates a servitude if it is intended to do so . . . .”

Specifically relevant to this case, § 4.1 of the Restatement (Third) makes the intentions or the reasonable expectations of the parties the overarching consideration in the construction of a servitude. Only if the rules of § 4.1 are not fully applicable do supplemental principles, set forth in §§ 4.10 and 4.11, provide additional guidance. Subject to the proviso that the servitude beneficiary is not entitled to cause unreasonable damages to the servient estate, or interfere unreasonably with its enjoyment, § 4.10 permits the beneficiary of an easement “to make any use of the servient estate that is reasonably necessary for the convenient enjoyment of the servitude for its intended purpose. The manner, frequency, and intensity of the beneficiary’s use of the servient estate may change over time to take advantage of developments in technology and to accommodate normal development of the dominant estate or enterprise benefited by the servitude. . . .” Section 4.11 cautions that “ [t]he beneficiary of an appurtenant easement or profit is not entitled to use the servient estate for the benefit of property other than the dominant estate.”

Taken in their entirety, the rules of the Restatement (Third) persuade us of the continued vitality of our decision in Carbone. At the retrial, unless our factual assumptions are found to be inaccurate, the governing principles stated in Carbone should be applied. In applying these principles, however, the trial court should be mindful of the fact that the federal government originally acquired its fee interest in the property by conveyances that resulted from its exercise of its right of. eminent domain and yet, simultaneously, acquired its leasehold interest in the disputed masking area by a consensual agreement. It also should be mindful that the relevant intent must be determined by examination of the relevant documents at the time of the original conveyance and leasehold.

The judgment is reversed and the case is remanded for a new trial.

In this opinion KATZ, PALMER and MCDONALD, Js., concurred.

BERDON, J.,

dissenting. I agree with the majority that the trial court in this case, Judge Satter, did not view the site for the purpose of an ex parte investigation of the facts disputed at trial. I also agree that Judge Satter, however, should not have visited the site for any purpose. At the hearing on the motion for recusal, Judge Satter candidly admitted that he “shouldn’t have gone up there. . . .” Nevertheless, I am unable to conclude that his conduct, under the circumstances, reached a level that required recusal. Simply put, Judge Satter’s Sunday afternoon excursion, embarked upon for the purpose of showing to his wife the beautiful view from the top of the mountain, did not constitute conduct sufficient to lead “a reasonable [person] knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned . . . .” (internal quotation marks omitted.) Papa v. New Haven Federation of Teachers, 186 Conn. 725, 745-46, 444 A.2d 196 (1982). Indeed, as the majority points out, any information he received from the visit was favorable to the plaintiff, Abington Limited Partnership.

Previously, this court has not lightly presumed that a reasonable person, knowing all of the surrounding circumstances, would reasonably question the impartiality of a judge in light of those circumstances. The Papa case is illustrative. Papa involved two separate, unrelated motions for recusal. In the first motion, the defendants, who were teachers engaged in an illegal strike, argued that the impartiality of the trial judge reasonably could be questioned as a result of the fact that the judge had made public comments critical of illegal teachers’ strikes at a conference a short time prior to the initiation of the case pending before him. Id., 740-42. This court, holding that recusal was not required because the comments did not raise a reasonable doubt as to “whether the judge had prejudged . . . [the] impending case”; id., 743; concluded that the defendants’ motion properly had been denied. Id., 746.

In reviewing the trial court’s denial of the second motion for recusal in Papa, this court determined that the motion should have been granted based upon the trial judge’s inclusion in the record of unsubstantiated findings supported only by the judge’s own personal knowledge. Id., 753. The motion for recusal was filed following the trial judge’s participation in an interview with a news reporter regarding the pending case. The newspaper article that followed the interview quoted the judge as having made numerous negative comments about the defendants in the case. Id., 748-49. This court determined that, although a judge need not necessarily be disqualified for making public comments about a pending case, recusal was required under the circumstances because of the judge’s conduct subsequent to the interview. Id., 747-48. Following the defendants’ filing of the motion for recusal, the judge included four pages of factual findings in the record regarding the interview and the statements that he made that were not substantiated by any evidence before the court. Id., 750-51. This court determined that the inclusion of such findings was obviously improper, and that in making the findings the judge had, in effect, made himself an unsworn witness to material facts not subject to cross-examination, and demonstrated a personal involvement with the case that would lead one reasonably to question his impartiality. Id., 751-53.

In my view, the facts of this case simply do not rise to a similar level as in Papa that would lead a reasonable person to conclude that Judge Satter’s impartiality should be questioned. First, it must be kept in mind that a full hearing to determine exactly what had occurred with respect to Judge Satter’s visit to the site was held and the facts gleaned from that hearing were undisputed. Judge Satter’s purpose for visiting the site, as indicated previously, was to show to his wife the views from the top of the mountain that he had seen on two previous occasions when he visited the site with the parties involved in this litigation. As a consequence of the visit with his wife, no additional information or evidence about the litigation was obtained that Judge Satter did not already have before him. Judge Satter did gain access to the home of James W. Tilney while on the mountain under the pretext that he was responding to a “For Sale” sign on the house, however, Tilney was not involved in the litigation. Furthermore, in the conversation that Judge Satter initiated with Tilney by commenting that he understood that there was litigation involving the road leading to the property and without identifying himself as the trial judge, Tilney responded in a manner favorable to the plaintiff. Unless one could conclude, therefore, that Judge Satter engaged Tilney in a conversation for the purpose of obtaining negative evidence about the plaintiffs cause of action, which even the plaintiff in this case does not contend, it is not reasonable to question the judge’s impartiality under these circumstances.

As a result of the majority’s decision, the nine parties involved in this case, represented by six law firms, will be required to relitigate the entire matter, incurring significant expenses for legal fees and other costs of litigation.

I also do not join in part II of the majority opinion— an advisory opinion on the law of easements. Cases involving property law involve fine distinctions that should not be decided in a factual vacuum.

Accordingly, I dissent.

       Montevideo Road is in Avon and Bloomfield.

       The plaintiffs complaint contained the following counts against all the defendants: action to settle title, trespass, misuse of easement and overburdening of easement. In addition, the complaint alleged that the defendant Katherine Vidal Smith, who had sold the property to the plaintiff, was liable for breach of warranty under the deed and for breach of contract under the sales agreement.

       The additional defendants are: Arch Communications Corporation; Chase Family Limited Partnership No. 7; Fleet Bank, N.A.; Hartford Television, Inc.; Bruce G. Heublein; Candace Heublein Homer; Metro-Mobile CTS of Hartford, Inc.; New England Weather Service, Inc.; Anne Heublein Rudder; Katherine Vidal Smith; the state of Connecticut; the town of Avon; Eric M. Zachs; and Henry M. Zachs. For the purposes of this appeal, the claims asserted against these parties do not differ materially from those relating to the Science Center.

       General Statutes § 51-199 (c) provides in relevant part: “The Supreme Court may transfer to itself a cause in the Appellate Court. . . .”

       The judge stated: “I think that under the circumstances probably I shouldn’t have gone up there but I honestly don’t think that in any way it influenced my decision at all or would influence [it] in the slightest.”

       Canon 3 (a) (4) of the Code of Judicial Conduct provides in relevant part: “A judge shall not initiate, permit or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding . . . .”

       Canon 3 (c) (1) of the Code of Judicial Conduct provides in relevant part: “A judge should disqualify himself or herself in a proceeding in which the judge’s impartialify might reasonably be questioned . . . .”

       The judge’s conversation with a local landowner upon his ex parte visit to the site of the property; see part I B of this opinion; uncovered nothing specific other than the landowner’s impression that the plaintiff had been given the runaround by the defendants.

       See also canon 2 (a) of the Code of Judicial Conduct, which provides that “[a] judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Canon 2 (a) recently was interpreted and applied in In re Flanagan, 240 Conn. 157, 188-92, 690 A.2d 865, cert. denied, 522 U.S. 865, 118 S. Ct. 172, 139 L. Ed. 2d 114 (1997).

       The judge agreed that Tilney’s testimony was “98 percent accurate.” His recollection differed from that of Tilney only with respect to the manner in which the judge disclosed his identity. Without questioning that the disclosure came toward the end of his conversation with Tilney, the judge stated that he thought that he had been more forthcoming about identifying himself.

       Judge Maloney disclosed, at the outset, that he had a long-standing, warm personal relationship with the trial court judge. He concluded that this relationship would not be an impediment to his decision because he was not undertaking any inquiry into the veracity of the trial judge or into his suitability to preside over the court trial. Therefore, despite the plaintiffs request for recusal, Judge Maloney conducted the hearing. The plaintiff has noted this ruling in its appellate brief, but has not challenged its validity.

       The plaintiff had indicated initially that it might want Tilney’s wife to testify, but it did not pursue that course before Judge Maloney.

       Although the federal case law construes the provisions of 28 U.S.C. § 455 (a) as amended, that federal statute closely resembles our canon 3 (c) (1). Bonelli v. Bonelli, supra, 214 Conn. 22.

       After identifying Ms minor factual disagreement with Tilney’s testimony about the manner in wMch the judge had identified himself, the judge stated:
      “I think that I didn’t, couldn’t — Mr. Tilney was talking — I didn’t stop him but I should have stopped him sooner, but I certainly didn’t think he said anything of any significance or anything that hadn’t been said by [Michael] Konover [authorized representative of the plaintiff], as I recollect clearly, in the testimony of Mr. Konover.
      “I never would have gone on that road if it was the first time I’d gone on the road — I’m fully conscious of that fact — but it had been the third time, and I didn’t think there was anything significant about going on the road after all of that contact with it.
      “I can’t see how anything — certainly , anything I did — demonstrates any bias on my part in one direction or the other in tMs case. I don’t see how I did anything that indicates in any way my favoritism toward any client or prejudice toward any party in the case.
      “Giving all the weight wanted to be given to what Mr. Tilney said, wMch I should have stopped him [from saying] but I didn’t out of just more politeness than anything else at the time, I just don’t see any basis for recusing myself.”

       “A reasonable observer is unconcerned about trivial risks; there is always some risk, a probability exceeding 0.0001%, that a judge will disregard the merits. Trivial risks are endemic, and if they were enough to require disqualification we would have a system of preemptory strikes and judge-shopping, which itself would imperil the perceived ability of the judicial system to decide cases without regard to persons. A thoughtful observer understands that putting disqualification in the hands of a party, whose real fear may be that the judge will apply rather than disregard the law, could introduce a bias into abdication. Thus the search is for a risk substantially out of the ordinary.” (Emphasis in original.) In the Matter of Mason, 916 F.2d 384, 386 (7th Cir. 1990).

       The defendants did not prevail on their special defenses claiming that the Science Center had acquired an easement by grant, implication or necessity. On appeal, the Science Center has renewed only its special defense of easement by implication. Katherine Vidal Smith, by contrast, renews only the special defense of easement by express grant. All the defendants also filed special defenses claiming laches and equitable estoppel. Because the trial court did not reach the merits of any of these special defenses, they may be renewed at retrial.
      Smith filed a counterclaim for damages on the ground that she had been sued wrongfully because the gravamen of the plaintiffs complaint was misconduct by the Science Center. Although the trial court agreed that Smith bore no liability, it awarded her no damages. Smith has not appealed the implicit denial of her counterclaim. It may, however, be renewed at retrial.

       The parties agree that the easement is appurtenant. See Branch v. Occhionero, 239 Conn. 199, 203-204, 681 A.2d 306 (1996); Restatement (Third), Property, Servitudes (Tentative Draft No. 4) (1994) (officially adopted 1998) § 4.5.

       For present purposes, we assume that the masking area encompasses all of the after-acquired property that the Science Center seeks to access by use of Montevideo Road.

       The trial court made factual findings about the extent to which the use of the easement by the Science Center imposed an overburden on Montevideo Road. Because definitive fact-finding must await retrial, we are not reviewing that aspect of the trial court’s decision.

       The American Law Institute adopted the Restatement (Third) of Property, Servitudes in its entirety, subject only to editorial modifications, at its annual meeting on May 12, 1998. See 66 U.S.L.W. 2724-26 (May 26, 1998).

       Restatement (Third), Property, Servitudes (Tentative Draft No. 1) (1989) (officially adopted 1998) § 2.1 provides: “A servitude may be created by contract or conveyance.”

       Restatement (Third), Property, Servitudes (Tentative Draft No. 1) (1989) (officially adopted 1998) § 2.2 provides: “A contract or conveyance creates a servitude if it is intended to do so, and if it is otherwise effective to create a servitude. The intent to create a servitude may be express or implied. No particular verbal formula is required.”

       Restatement (Third), Property, Servitudes (Tentative Draft No. 4) (1994) (officially adopted 1998) § 4.1 provides: “Interpretation of Servitudes
      “(1) A servitude should be interpreted to give effect to and be consistent with:
      “(a) the intentions of the parties to an expressly created servitude;
      “(b) the intentions or reasonable expectations of the parties to a servitude created by implication, necessity, or estoppel; and
      “(c) the reasonable expectations of the party against whom a servitude is created by prescription.
      “(2) A servitude should be interpreted to carry out the purpose for which it was created.
      “(3) To the extent not inconsistent with the interpretation arrived at under subsections (1) and (2), a servitude should be interpreted to avoid violating public policy. Among reasonable interpretations, that which is more consonant with public policy should be preferred.”

       Restatement (Third), Property, Servitudes (Tentative Draft No. 4) (1994) (officially adopted 1998) § 4.10 provides: “Use Rights Conferred by Easements and Profits

        “Except where application of the rules stated in § 4.1 leads to a different result, the beneficiary of an easement or profit is entitled to make any use of the servient estate that is reasonably necessary for the convenient enjoyment of the servitude for its intended purpose. The manner, frequency, and intensity of the beneficiary’s use of the servient estate may change over time to taire advantage of developments in technology and to accommodate normal development of the dominant estate or enterprise benefited by the servitude. The rules stated in this section are subject to the proviso that the servitude beneficiary is not entitled to cause unreasonable damage to the servient estate or interfere unreasonably with its eqjoyment.”

       Restatement (Third), Property, Servitudes (Tentative Draft No. 4) (1994) (officially adopted 1998) § 4.11 provides: “Appurtenant Easement or Profit Limited to Serving Dominant Estate
      “The beneficiary of an appurtenant easement or profit is not entitled to use the servient estate for the benefit of property other than the dominant estate.”

       The principles of the Restatement (Third) encompass both conveyances and contracts, and thus do not categorically exclude property acquired other than by contract. See Restatement (Third), Property, Servitudes (Tentative Draft No. 1) (1989) (officially adopted 1998) § 2.2.

       These documents include, inter alia, the June 27, 1955 judgment on declaration of taking, the July 28, 1955 amended judgment on declaration of taking, the November 22, 1955 quitclaim deed from the Hartford Times, and the lease from the Hartford Times.


text:
    CHESTER OLKOWSKI ET AL. v. JUSTIN DEW ET AL.
    Decided July 23, 1998

      Campbell D. Barrett, in support of the petition.

      William J. Melley III, in opposition.
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 48 Conn. App. 864 (AC 16945), is denied.


author: BERDON, J.,

text:
    STATE OF CONNECTICUT v. ARTHUR LUSTER
    Decided July 23, 1998

      Deborah Krauss Snyder, special public defender, in support of the petition.

      Harry Weller, senior assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 48 Conn. App. 872 (AC 17120), is denied.

BERDON, J.,

dissenting. I would grant the defendant’s petition for certification to appeal.

KATZ and NORCOTT, Js., did not participate in the consideration or decision of this petition.


text:
    JOEL HEBERT v. RWA, INC., ET AL.
   The petition of the defendant William Hansen, doing business as Hansen Brothers General Contractors, for certification for appeal from the Appellate Court, 48 Conn. App. 449 (AC 17214), is denied.

BERDON, J.,

dissenting. I would grant the defendant’s petition for certification to appeal.

Decided July 23, 1998

Brian E. Prindle, in support of the petition.

Michelle D. Truglia, assistant attorney general, in opposition.


text:
    DANIEL F. LAKE v. ROSE MARIE LAKE
    Decided July 23, 1998

      Lisa Faccadio and Christine Dorsey, in support of the petition.

      Campbell D. Barrett, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 49 Conn. App. 89 (AC 16732), is denied.

BERDON, J.,

dissenting. I would grant the defendant’s petition for certification to appeal.


text:
    JUAN ORTIZ v. COMMISSIONER OF CORRECTION
    Decided July 23, 1998

      Raymond J. Rigat, in support of the petition.

      Richard F. Jacobson, assistant state’s attorney, in opposition.
   The petitioner Juan Ortiz’ petition for certification for appeal from the Appellate Court, 49 Conn. App. 31 (AC 16948), is denied.


text:
    STATE OF CONNECTICUT v. AFSCME, COUNCIL 4, LOCAL 1565
    The Supreme Court docket number is SC 15974.
    Decided July 23, 1998

      Thomas P. Clifford III, assistant attorney general, in support of the petition.

      Jason W. Cohen, in opposition.
   The petition of the state of Connecticut for certification for appeal from the Appellate Court, 49 Conn. App. 33 (AC 16958), is granted, limited to the following issue:

“Did the Appellate Court properly conclude, under the circumstances of this case, that when an arbitration award is vacated for lack of mutuality, finality and definiteness, under General Statutes § 52-418 (a) (4), the matter may be referred back to the original arbitrator for the rendering of a definite award, without the necessity of additional evidence, rather than being referred to a new arbitrator for a new hearing?”