text:
    STATE OF CONNECTICUT v. HOA VAN NGUYEN
    (SC 16093)
    Borden, Norcott, Katz, Palmer and Vertefeuille, Js.

      Argued April 27
    officially released July 18, 2000

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

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

KATZ, J.

The principal issue in this certified appeal involves the proper scope of the trial court’s inquiry when faced with an allegation that a sequestration order granted pursuant to Practice Book § 42-36 has been violated. In specific, we must determine whether, in the absence of a request from counsel, the trial court must conduct a formal evidentiary hearing prior to ruling on the merits of an alleged sequestration violation. This inquiry requires that we also determine, as a preliminary matter, the limitations of such an order, specifically whether a sequestration order granted pursuant to § 42-361 operates to prohibit counsel from discussing, outside of the courtroom, the testimony of a prior witness in the presence of a prospective witness. We conclude that, in the absence of a contrary indication from the trial court, such conduct falls within the scope of a sequestration order. We conclude further that, although the trial court must conduct a preliminary inquiry of counsel when presented with a facially credible allegation that a sequestration order has been violated, whether to conduct an evidentiary hearing sua sponte is a matter within the trial court’s discretion. Finally, consistent with the Appellate Court’s determination of this issue; see State v. Nguyen, 52 Conn. App. 85, 88-89, 726 A.2d 119 (1999); we conclude that, under the circumstances of this case, the trial court’s failure to conduct an evidentiary hearing was not an abuse of discretion. Accordingly, we affirm the judgment of the Appellate Court.

The defendant, Hoa Van Nguyen, was charged with sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), and risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53-21. Following a jury trial, the defendant was convicted on both counts, and the trial court imposed a total effective sentence of fifteen years imprisonment, execution suspended after twelve years, with five years probation.

The defendant appealed from the judgment of the trial court to the Appellate Court. The Appellate Court opinion sets forth the following facts that are relevant to this appeal. “The defendant, his wife and the victim’s parents jointly purchased and lived together in a single-family home in West Hartford. In 1994, the five year old victim, Q, and her brother went to play in the basement of the house. The defendant was already in the basement and asked the victim’s brother to go back upstairs and to lock the basement door behind him.

“The defendant then removed Q’s shorts and underpants and unfastened his trousers. He forced Q to stimulate his penis manually and then inserted his penis into her vagina. Afterwards, the defendant told Q that he would buy her a toy if she kept secret what had happened. Q went upstairs and told her mother what had occurred.” State v. Nguyen, supra, 52 Conn. App. 87.

At trial, “[t]he trial court granted the state’s motion for a sequestration order pursuant to Practice Book § 876, now § 42-36. Dining the defendant’s case-in-chief, the defendant’s wife testified that Q’s parents were physically abusive when disciplining Q and her brother, that they had fabricated the rape charge to gain control of the jointly owned house and that Q had cooperated with her parents out of fear of physical punishment. Immediately following that testimony, the prosecutor overheard part of a closed door discussion in a room outside of the courtroom between the defendant’s attorney, the defendant’s wife and George Thibodeau . . . a friend of the defendant [who was to be the next defense witness].” Id., 87-88.

The prosecutor immediately brought this incident to the attention of the trial court, stating specifically: “I heard [defense counsel] talking to the last witness who is [the defendant’s wife], and in doing so I heard him saying to her ‘Well, why didn’t you say this and you should have said this,’ something to that effect about her testimony that she had just completed and testified to. I heard her making [a] response to him. I’m not sure what that response was, but I could hear a female voice obviously responding to what inquiries were posed [to] her. Thereafter, I hear counsel indicating that, you know, ‘She had said this’ and then directing his attention I would infer to Mr. Thibodeau, ‘Well, can you say this and can you say this’ and discussing what obviously would be, you know, what his impending testimony was going to be.”

Defense counsel responded to the prosecutor’s representations as follows: “I did go into the witness room. There was both the . . . defendant’s wife and . . . Thibodeau. There may have been some reference to her while Mr. Thibodeau was there, some comment by me about her testimony. As to what it was I can’t remember exactly but my questioning about something that she said, but other than that, I have no recollection of talking to Mr. Thibodeau about what he would say or not say. ... I may have asked [the defendant’s wife] a question about what she said when she testified, yes. She was upset, and she was inquiring about [whether she had said] the right thing, that sort of thing, but, you know, I responded to that mainly because my thinking was that, well, this witness has testified. You know, it’s not really an issue what she says in front of anybody, not really thinking about Thibodeau, who was in the corner basically reading the paper when I walked in.”

Thereafter, the court instructed the prosecutor to restate the basis of his allegation. The prosecutor recounted that “there was a reference that ‘she said this’ and then a direction, which I believe would be to Mr. Thibodeau about ‘Well, can you say this’ and ‘You can say this’ as to the nature of what he would ultimately testify to . . . which I perceive obviously is discussing what she said with him in [Thibodeau’s] presence and then obviously determining to proffer his evidence.” In response, defense counsel denied the allegation, emphasizing that, “[t]here was no instruction by me to anybody as to what to say. Now, there may be a discussion about some other matter but certainly no discussion about what [Thibodeau’s] testimony should be.” At that point, the prosecutor clarified that he was not suggesting that defense counsel told Thibodeau what to say on the stand, but that he had “heard [defense counsel] refer to matters that the witness had just testified to. ‘She said this, [s]he said this’ and then directing his attention obviously to Mr. Thibodeau, who is standing right there ‘Well, can you say this,’ and ‘you could say this’ and then getting into the sum and substance of his conversation. That’s what I heard.” In response, defense counsel effectively retracted his original statement that he had discussed specific elements of the prior witness’ testimony in Thibodeau’s presence, stating that, “[t]here was a question or two about ‘did I say the right thing, did I not say the right thing,’ but I want to be clear about one thing, and that is that the substance of [the defendant’s wife’s] testimony was not gone into in front of Mr. Thibodeau.” On the basis of these statements, the court concluded that the sequestration order, the purpose of which was to protect the integrity of the witnesses, had been violated. Because of that breach, the trial court barred Thibodeau’s testimony.

The following day, the defendant moved that the trial court reconsider its order and permit Thibodeau’s testimony. Although defense counsel acknowledged having had a conversation with the defendant’s wife, he attempted to clarify the perceived inconsistency in his previous statements by emphasizing that “the content of her testimony was not discussed in front of Mr. Thibo-deau.” At the same time, defense counsel acknowledged having “a conversation with Mr. Thibodeau about his testimony .... He had some questions about his testimony totally unrelated to anything regarding what the defendant’s wife had to say because she wasn’t describing the contents of her testimony. I was entitled to talk to him even though she was in the room about his testimony. He was my witness. She had already concluded her testimony.”

The trial court instructed the prosecutor to recount again what he had overheard. The prosecutor’s recollection of events mirrored his earlier representations. He responded: “Again I heard counsel speaking to the female witness who again I say is the witness who testified, the defendant’s wife. He had communication with her about what she testified in the sense of she said something. He said, ‘Well, why didn’t you say this,’ and she said something, and ‘You could have said this,’ and then there was conversation in the room that said, Well, she said this’ and asking Mr. Thibodeau certain questions about what he could say and what he would say. . . . There was a statement made. I don’t know if it was directed particularly to Mr. Thibodeau, but the statement was Well, she said this,’ so I don’t know who — I can’t say who it was made to, but obviously that statement was made in the presence of Mr. Thibo-deau, and then there was conversation with Mr. Thibo-deau about his upcoming testimony.” Defense counsel argued that the prosecutor was taking the conversation out of context, and reiterated his claim that “[t]he only thing that was discussed was the way she talked, the way she testified, her feelings about it, whether she should have been stronger, more emotional, did she cry too much, but the content of what she said was not discussed in front of Mr. Thibodeau . . . .”

The trial court then inquired into the nature of Thibo-deau’s proposed testimony, which, according to defense counsel, was intended to corroborate matters previously testified to by the defendant’s wife, including Q’s abusive relationship with her parents, and the relationship between Q’s parents and the defendant’s family. Thereafter, the trial court denied the defendant’s motion. The trial court reasoned as follows: “I find nothing in the argument today that would cause me to change my prior ruling. I can assure you that I don’t make this ruling lightly, and had [a physician who testified as an expert witness for the defense], for example, been in the room with you . . . and he were to be the witness following the defendant’s wife, I would be just as dismayed that he was in that room while you were there with your last witness, but I would see no relationship between or little relationship between his proposed testimony and that of the defendant’s wife. It weighed heavily on my decision as to who the parties were that were in that room. . . . You have both spoken as officers of the court and need not be placed under oath ... as far as I’m concerned. ... I believe because of the nature of both witnesses’ testimony that the activity here yesterday afternoon in the anteroom violates the [sequestration] order.”

On appeal to the Appellate Court, the defendant claimed, inter alia, that, following the prosecutor’s allegations, the trial court improperly had failed to conduct sua sponte an evidentiary hearing before concluding that the sequestration order had been violated and barring Thibodeau from testifying. The Appellate Court rejected the defendant’s claim, and affirmed the judgment of the trial court. See State v. Nguyen, supra, 52 Conn. App. 93, 97. In specific, the Appellate Court concluded that, in addition to prohibiting a prospective witness from remaining in the courtroom prior to testifying, a sequestration order issued pursuant to § 42-31 prohibits counsel from discussing a prior witness’ testimony in the presence of a prospective witness outside of the courtroom. Id., 91. The Appellate Court also concluded that, in joining the state’s motion for a sequestration order, and in arguing for a broad construction of the order as applied to another witness, defense counsel indicated his understanding as to the broad scope of the sequestration order. Id. In addition, relying on this court’s decision in State v. Brown, 235 Conn. 502, 526, 668 A.2d 1288 (1995), the Appellate Court concluded that a trial court’s decision to conduct a formal evidentiary hearing when confronted with an alleged sequestration violation is a matter of discretion. See State v. Nguyen, supra, 88-89. Finally, the Appellate Court concluded that, in light of the fact that defense counsel effectively had acknowledged the essential facts that gave rise to the prosecutor’s allegations, the trial court, in reaching its conclusion that the sequestration order had been violated, had not abused its discretion in relying solely on those representations in the absence of a request from counsel to conduct an evidential hearing. Id., 89.

We granted the defendant’s petition for certification to appeal, limited to the following issues: “1. Did the Appellate Court properly conclude that no evidentiary hearing was necessary regarding whether the defendant had violated the sequestration order? 2. Did the Appellate Court properly conclude that the sequestration order had been violated? [and] 3. If the answer to either question one or question two is no, was the error of the trial court harmless.” State v. Nguyen, 248 Conn. 913, 734 A.2d 565 (1999). This appeal followed.

We conclude that the Appellate Court properly determined that a sequestration order granted pursuant to § 42-36 prohibits counsel from discussing a prior witness’ testimony outside of the courtroom in the presence of a prospective witness. We farther conclude that the Appellate Court properly determined that the decision to conduct sua sponte an evidentiary hearing is a matter of discretion for the trial court, and that, under the circumstances of this case, the trial court’s failure to conduct such a hearing was not an abuse of discretion. Finally, we conclude that the Appellate Court properly affirmed the trial court’s determination that the sequestration order had been violated. Accordingly, we affirm the judgment of the Appellate Court.

I

The first certified issue in this appeal is whether the Appellate Court properly concluded that the trial court was not required sua sponte to conduct an evidentiary hearing before deciding whether the sequestration order had been violated, and whether to bar Thibodeau from testifying. As stated previously, that inquiry involves a determination of the scope of a sequestration order issued pursuant to § 42431, that is, whether, in addition to barring a prospective witness from the courtroom, a sequestration order prohibits counsel from discussing a prior witness’ testimony in the presence of a prospective witness outside of the courtroom. The Appellate Court affirmed the trial court’s determination that such conduct fell within the scope of the sequestration order. We conclude that the Appellate Court’s determination was proper.

A

“The right to have witnesses sequestered is an important right that facilitates the truth-seeking and fact-finding functions of a trial.” State v. Robinson, 230 Conn. 591, 598, 646 A.2d 118 (1994); see also State v. Paolella, 211 Conn. 672, 681, 561 A.2d 111 (1989); State v. Soltes, 20 Conn. App. 342, 346, 566 A.2d 1374 (1989), appeal dismissed, 215 Conn. 614, 577 A.2d 717 (1990). “Sequestration selves a broad purpose. It is a procedural device that serves to prevent witnesses from tailoring their testimony to that of earlier witnesses; it aids in detecting testimony that is less than candid and assures that witnesses testify on the basis of their own knowledge. Geders v. United States, [425 U.S. 80, 87, 96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976)] . . . .” (Citations omitted.) State v. Robinson, supra, 600; see also State v. Falby, 187 Conn. 6, 26-27, 444 A.2d 213 (1982) (“ ‘[t]he obvious purpose of sequestering a witness while another is giving his testimony is to prevent the one sequestered from shaping his testimony to corroborate falsely the testimony of the other’ ”). “In essence, it helps to ensure that the trial is fair. State v. Paolella, [supra, 680-81]; State v. Stovall, [199 Conn. 62, 69, 505 A.2d 708 (1986)].” State v. Robinson, supra, 600. Atrial court must take full account of the significant objectives advanced by sequestration in discerning the proper scope of a sequestration order.

As stated previously, the defendant joined in the motion submitted by the state to sequester all witnesses that would be called to testify for either party. The trial court granted that motion without expanding upon the scope of the request. The following additional facts are pertinent to our resolution of this issue.

During much of the trial, Elizabeth Foran, Q’s guardian ad litem, had been present in the courtroom. Although neither party intended to call Foran as a witness, the trial corut admonished Foran that, pursuant to the sequestration order, if she were to remain in the courtroom, she could not discuss any witness’ testimony with Q or with any other witness. At that point, defense counsel raised a specific concern that Foran, who was in the courtroom during the testimony of Q’s mother, not be permitted to discuss the case with the mother. Foran assured the court that she was not discussing the case with any of the family members. The trial court then instructed Foran that she was also, not to discuss the case with any future witness.

The defendant claims that the court’s sequestration order merely barred prospective witnesses from remaining in the courtroom prior to giving their testimony and, therefore, did not preclude the exchange that took place between defense counsel, the defendant’s wife, and Thibodeau. The state contends, on the other hand, that because the purpose of a sequestration order is to protect the integrity of the witnesses’ testimony, it prohibits a party from discussing the testimony of a prior witness in the presence of a witness yet to be called.

We disagree with the defendant that a sequestration order entered pursuant to § 42-36 does no more than prohibit a prospective witness from remaining in the courtroom prior to taking the stand. As the Appellate Court correctly noted, “[t]he primary purpose of a sequestration order is to ensure that the defendant receives a fair trial by preventing witnesses from shaping their testimony to corroborate falsely the testimony of others. . . . State v. Sherman, 38 Conn. App. 371, 413-14, 662 A.2d 767, cert. denied, 235 Conn. 905, 665 A.2d 905 (1995). Although the language of Practice Book § 876 [now § 42-36] may seem merely to bar a sequestered witness from being in the courtroom when he is not testifying ... we do not follow so rigid an interpretation. Indeed, such an interpretation would vitiate any sequestration order by exalting form above substance.” (Citations omitted; internal quotation marks omitted.) State v. Nguyen, supra, 52 Conn. App. 90-91.

We previously have held that the primary objective of a sequestration order is undermined, not only when a prospective witness hears the testimony of a prior witness firsthand, but also through the disingenuous strategy of effectively transmitting a prior witness’ testimony to a prospective witness via a third party. See, e.g., State v. Cavell, 235 Conn. 711, 718, 670 A.2d 261 (1996) (recognizing that violation of sequestration order arose when expert witness reviewed transcript of prior witness’ testimony on evening before taking stand); State v. Falby, supra, 187 Conn. 27-28 (prosecutor violated sequestration order by delivering transcript of defense expert’s testimony to future witness); State v. Sherman, supra, 38 Conn. App. 414 (sequestration order violated when expert witness reviewed transcript of prior witness’ testimony). Thus, the fact that Thibodeau learned of the prior testimony as a result of defense counsel’s discussion with the defendant’s wife, as opposed to his being present in the courtroom during her testimony, makes it no less of a violation of the sequestration order.

Moreover, in the present case, the defendant not only joined the state’s motion for a sequestration order, but asserted no objection when he was advised of the scope of the order by the trial court’s questioning of Foran. To the contrary, “when the issue of Foran’s presence in the courtroom arose, [defense counsel] urged a broad construction of the sequestration order and indicated his understanding that the order was not limited to barring prospective witnesses from the courtroom.” State v. Nguyen, supra, 52 Conn. App. 91. The defendant’s position at the time of trial, therefore, severely undercuts his position on appeal that the sequestration order had no effect beyond the confines of the courtroom. Under these circumstances, the Appellate Court correctly concluded that the trial court properly had applied the sequestration order to the communication among defense counsel, the defendant’s wife and Thibo-deau.

B

We must next determine whether the Appellate Court properly concluded that the trial court had not abused its discretion by failing to conduct sua sponte an eviden-tiary hearing in response to the prosecutor’s allegation that the sequestration order had been violated. Both parties agree that, when a trial court is faced with an alleged sequestration violation, “[a]n inquiry into the facts and circumstances of each case is necessary to ascertain whether the purpose of a sequestration order has been thwarted.” (Internal quotation marks omitted.) State v. Robinson, supra, 230 Conn. 600; see also State v. Nguyen, supra, 52 Conn. App. 88; State v. Sherman, supra, 38 Conn. App. 414. The question before us, however, is whether, pursuant to that inquiry, the trial court in this case properly relied upon the representations of counsel in determining that the sequestration order had been violated, and consequently barring Thibodeau from testifying, without conducting, sua sponte, an evi-dentiary hearing into the facts that gave rise to the prosecutor’s allegations.

We first articulate the standard applicable to our review of the defendant’s claim. We consistently have held that, unless otherwise required by statute, a rule of practice or a rule of evidence, whether to conduct an evidentiary hearing generally is a matter that rests within the sound discretion of the trial court. See, e.g., State v. Wolff, 237 Conn. 633, 664, 678 A.2d 1369 (1996) (in absence of request from counsel, “ ‘[t]he decision to grant [an evidentiary] hearing [into a defendant’s competence] requires the exercise of sound judicial discretion’ ”); State v. Lopez, 235 Conn. 487, 494-95, 668 A.2d 360 (1995) (trial court, has discretion to determine whether to hold evidentiary hearing before correcting transcript); Matza v. Matza, 226 Conn. 166, 180-81, 627 A.2d 414 (1993) (evidentiary hearing not necessarily required before trial court rules on attorney’s motion to withdraw); State v. Haye, 214 Conn. 476, 482-83, 572 A.2d 974 (1990) (in absence of request for formal evidentiary hearing, representations of counsel may suffice to support good cause finding for continuance of probable cause hearing); see also State v. Correa, 57 Conn. App. 98, 103, 748 A.2d 307 (2000) (trial court’s denial of evidentiary hearing on defendant’s motion to suppress reviewed for abuse of discretion); State v. Gundel, 56 Conn. App. 805, 814, 746 A.2d 204 (2000) (reviewing trial court’s failure to conduct evidentiary hearing to determine whether guilty plea was knowing and voluntary under abuse of discretion standard); State v. Barrett, 43 Conn. App. 667, 672-74, 685 A.2d 677 (1996), cert. denied, 240 Conn. 923, 692 A.2d 819 (1997) (trial court did not abuse discretion in denying defendant’s motion for evidentiary hearing on admissibility of victim’s prior allegations of sexual assault); State v. Jennings, 5 Conn. App. 500, 505, 500 A.2d 571 (1985) (inquiry on appeal limited to determining whether trial court abused discretion in refusing to grant full evidentiary hearing on defendant’s motion for mistrial). On appeal, “every reasonable presumption in favor of the trial court’s discretionary ruling will be made. State v. McKnight, 191 Conn. 564, 577, 469 A.2d 397 (1983) . . . .” (Citation omitted; internal quotation marks omitted.) State v. Haye, supra, 483. In determining whether the Appellate Court properly concluded that the trial court in this case had not abused its discretion in failing to conduct, sua sponte, an evidentiary hearing, we find instructive those cases dealing with the proper scope of the trial court’s investigation of alleged misconduct in similar contexts.

“In the past, we have recognized that the trial court has broad discretion to determine the form and scope of the proper response to allegations of . . . misconduct. See State v. Ross, [230 Conn. 183, 228, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995)]; State v. Rodriguez, [210 Conn. 315, 326, 554 A.2d 1080 (1989)]; State v. Asherman, [193 Conn. 695, 735, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985)].” State v. Brown, supra, 235 Conn. 523-24. In Brown, for example, “we exercised our supervisory authority over the administration of justice to hold that ... a trial court must conduct a preliminary inquiry, on the record, whenever it is presented with any allegations of jury misconduct in a criminal case, regardless of whether an inquiry is requested by counsel. . . . We reiterated that the trial court has broad discretion to determine the form and scope of the proper response to allegations of jury misconduct .... Our role as an appellate court is limited ... to a consideration of whether the trial court’s review of alleged jury misconduct can fairly be characterized as an abuse of its discretion.” (Citations omitted; internal quotation marks omitted.) State v. Santiago, 245 Conn. 301, 331, 715 A.2d 1 (1998). These same principles apply to our review of a claim that the trial court improperly failed to conduct, sua sponte, an evidentiary hearing when confronted with an alleged sequestration violation.

The defendant claims that the trial court in this case was required, sua sponte, to conduct an evidentiary hearing because the actual communications that might establish a sequestration violation could not be ascertained from a preliminary inquiry of counsel. In support of his claim, the defendant asserts that the prosecutor did not establish the substance of the exchange that took place among defense counsel and the two witnesses. He also emphasizes that defense counsel denied the prosecutor’s allegations, both pursuant to the initial inquiry, and in moving that the trial court reverse its order barring Thibodeau’s testimony. In essence, therefore, the defendant’s argument distills to a single assertion, namely, that the trial court improperly relied upon the representations of counsel in determining that the sequestration order had been violated. Accordingly, the defendant maintains that the Appellate Court improperly concluded that no evidentiary hearing was warranted.

The state counters that the trial court did not abuse its discretion in declining to conduct, sua sponte, an evidentiary hearing because defense counsel, in response to the trial court’s preliminary inquiry, acknowledged the essential facts that gave rise to the prosecutor’s allegations. Under these circumstances, the state maintains, the trial court was justified in concluding that the sequestration order had been violated based solely upon the representations of counsel. Moreover, the state emphasizes that the defendant’s failure to request an evidentiary hearing militates against a finding that the failure to conduct such a hearing was an abuse of discretion. We agree with the state.

In our review of the trial court’s decision in the present case, we are mindful that “[t]he overarching principle behind the scope of the preliminary inquiry into allegations of [sequestration violations] is that the breadth of questioning should be sufficient to permit the entire picture to be explored .... United States v. Moon, 718 F.2d 1210, 1234 (2d Cir. 1983), cert. denied, 466 U.S. 971, 104 S. Ct. 2344, 80 L. Ed. 2d 818 (1984).” (Internal quotation marks omitted.) State v. Santiago, supra, 245 Conn. 336-37. “[A]ny assessment of the form and scope of the inquiry that a trial court must undertake when it is presented with [a particular claim] will necessarily be fact specific. . . . The circumstances in each case will necessarily vary and each situation is sui generis. United States v. Barnes, 604 F.2d 121, 144 (2d Cir. 1979), cert. denied, 446 U.S. 907, 100 S. Ct. 1833, 64 L. Ed. 2d 260 (1980).” (Citations omitted; internal quotation marks omitted.) State v. Santiago, supra, 331-32; see also State v. Brown, supra, 235 Conn. 531. In some instances, “a trial court will rightfully be persuaded, solely on the basis of the allegations before it and the preliminary inquiry of counsel on the record”; State v. Brown, supra, 528; State v. Santiago, supra, 332; that a violation has occurred. Such was the case here.

In the present case, the trial court conducted a preliminary inquiry of counsel to determine whether the sequestration order had been violated. Pursuant to that inquiry, defense counsel recalled that he and the defendant’s wife had discussed elements of her testimony in Thibodeau’s presence, stating specifically that “[he] may have asked [the defendant’s wife] a question about what she said when she testified . . . [while] Thibo-deau . . . was in the comer [of the same room] . . . .” Additionally, defense counsel acknowledged that, immediately following that discussion, he and Thibo-deau had discussed Thibodeau’s upcoming testimony. Moreover, prior to denying the defendant’s motion to reconsider its order barring Thibodeau’s testimony, the trial court inquired into the nature of the testimony that Thibodeau was to provide. Defense counsel acknowledged his intent to call Thibodeau for the puipose of establishing facts previously testified to by the defendant’s wife. The consistency between the two witnesses’ testimony “weighed heavily” on the trial court’s ultimate decision to deny the defendant’s motion.

In light of the representations made by defense counsel, we cannot say that the trial court abused its discretion in not conducting, sua sponte, an evidentiary hearing for the purpose of inquiring further into the facts and circumstances that gave rise to the prosecutor’s allegations. The trial court was entitled to credit the truth of defense counsel’s assertions; see State v. Webb, 238 Conn. 389, 420, 680 A.2d 147 (1996) (“ ‘[attorneys are officers of the court, and when they address the judge solemnly upon a matter before the court, their declarations are virtually made under oath’ ”); and, therefore, to rely on them in support of its finding that the sequestration order had been violated. See State v. Falby, supra, 187 Conn. 27 (record adequate for determination that sequestration order had been violated wherein prosecutor acknowledged delivering transcript of defense expert’s testimony to witness). Accordingly, to require an evidentiary showing “to support representations of counsel concerning such matters would impugn the veracity of counsel and impose a staggering burden of time and effort on our already overburdened court system.” State v. Haye, supra, 214 Conn. 483. Indeed, given defense counsel's explanation of events, it is highly doubtful that an evidentiary hearing on the factual underpinnings of the prosecutor’s allegations would have been of any value whatsoever.

The defendant makes much of the fact that, in moving the trial court to reconsider its order barring Thibo-deau’s testimony, defense counsel had clarified that his discussion with the defendant’s wife pertained solely to the “manner,” rather than the “substance,” of her testimony. We do not find this distinction to be significant. First, “it is within the discretion of the trial court to make credibility assessments and determine whether the allegations are facially credible.” State v. Santiago, supra, 245 Conn. 337; see also D’Ascanio v. D’Ascanio, 237 Conn. 481, 487, 678 A.2d 469 (1996) (trial court has “ ‘unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties, which is not fully reflected in the cold, printed record which is available to us’ ”); State v. Brown, supra, 235 Conn. 527-28 (“the trial judge has a superior opportunity to assess the proceedings over which he or she personally has presided . . . and thus is in a superior position to evaluate the credibility of allegations of [and defenses to] . . . misconduct” [citations omitted]). Indeed, defense counsel’s subsequent retreat from his original position that the discussion in the anteroom pertained to specific elements of the testimony given by the defendant’s wife reasonably could have persuaded the trial court to discredit his explanation, particularly when compared with the prosecutor’s consistent version of events.

Second, as the Appellate Court correctly noted, defense counsel’s ultimate characterization of events was not necessarily inconsistent with the prosecutor’s assertions. See State v. Nguyen, supra, 52 Conn. App. 89. Rather, defense counsel’s own representations corroborated that a conversation in fact had taken place between himself and the defendant’s wife while Thibodeau was present, and that the exchange had related, in some respect, to the testimony previously given by the defendant’s wife. In light of this corroboration, the prosecutor’s allegations stood effectively uncontested. Therefore, defense counsel’s representations provided adequate factual support for the trial court’s determination that the discussion at issue undermined the purpose of the sequestration order. See, e.g., Matza v. Matza, supra, 226 Conn. 181 (counsel’s uncontested affidavit sufficed to establish justification for granting attorney’s motion to withdraw); State v. Haye, supra, 214 Conn. 483 (trial court properly relied upon counsel’s uncontested assertions in finding good cause to extend probable cause hearing); State v. Aillon, 202 Conn. 385, 391, 521 A.2d 555 (1987) (factual support of counsel’s representations required to establish unavailability of expert witness when state contests unavailability); State v. Sherman, 38 Conn. App. 371, 414, 662 A.2d 767, cert. denied, 235 Conn. 905, 665 A.2d 905 (1995) (finding sequestration violation based on counsel’s representation that expert had been furnished with transcript of prior witness’ testimony). Under these circumstances, it cannot be said that the trial court abused its discretion in reaching that very conclusion.

Finally, we note that the defendant had ample time to request an evidentiary hearing, but nevertheless declined to do so. This dereliction further militates against a conclusion that the trial court had abused its discretion in not conducting such a hearing. See, e.g., State v. Haye, supra, 214 Conn. 482 (trial court not required to investigate state’s representations of good cause for continuance where defendant did not request evidentiary hearing); State v. Boucino, 199 Conn. 207, 215, 506 A.2d 125 (1986) (trial court has no duty to conduct sua sponte evidentiary hearing prior to excluding defendant’s alibi witness as remedy for late witness disclosure); State v. Bethea, 167 Conn. 80, 87-88, 355 A.2d 6 (1974) (trial court has no duty to inquire sua sponte into factual basis for defendant’s request for continuance). The defendant was free to request an evidentiary hearing had he been persuaded that the trial court’s less extensive inquiry had been insufficient.

In State v. Brown, supra, 235 Conn. 528, we acknowledged that there may well be cases wherein the trial court’s determination as to an allegation of misconduct will rightfully be reached “solely on the basis of the allegations before it and the preliminary inquiry of counsel on the record . . . .” This is such a case. The trial court found, based upon defense counsel’s own representations, that a discussion regarding the testimony of the defendant’s wife had taken place in Thibodeau’s presence, and that the substance of Thibodeau’s proposed testimony was to mirror that of the defendant’s wife. On the basis of those findings, w.e cannot conclude that the trial court’s failure to conduct, sua sponte, an evidentiary hearing prior to determining that the sequestration order had been violated, and consequently, barring Thibodeau’s testimony, was an abuse of discretion. Thus, the Appellate Court’s conclusion was proper.

II

The only question remaining is whether the Appellate Court properly concluded that the trial court had properly determined that the sequestration order had been violated. On the basis of the scope of the sequestration order, and counsels’ representations to the trial court regarding the exchange that had transpired in the anteroom, we conclude that the Appellate Court properly affirmed the decision of the trial court that the sequestration order had been violated.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

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

       General Statutes § 53a-70 provides in relevant part: “Sexual assault in the first degree: Class B felony: Nonsuspendable sentences, (a) A person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person ....'’

       General Statutes (Rev. to 1993) § 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 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.”

       The defendant also claimed that the trial court improperly had denied his motion for an independent medical examination of Q, and failed to instruct the jury as requested on the issue of the credibility of a child witness. See State v. Nguyen, supra, 52 Conn. App. 86. The Appellate Court rejected these claims and the defendant did not seek certification to appeal these issues.

       In light of our conclusions with respect to the first two certified issues, we need not address the third certified issue.

       On appeal to the Appellate Court, the defendant had argued that, even if the trial court properly had found a violation of its order, the sanction imposed by the court, that is, an order barring Thibodeau from testifying, violated his constitutional right to present a defense. State v. Nguyen, supra, 52 Conn. App. 91-92. Alternatively, the defendant had argued that, if the exclusion of Thibodeau’s testimony was not of constitutional magnitude, the trial court nonetheless abused its discretion. The Appellate Court disagreed with both of those assertions. Id., 92.

        The defendant did not seek certification to appeal these issues. Nonetheless, the sanction imposed was integral to the trial court’s analysis and ultimate decision, and to 1he Appellate Court’s assessment of whether a sua sponte hearing was required. Therefore, our review of the propriety of the trial court’s inquiry takes into account the significance of its ultimate decision to bar Thibodeau’s testimony. See State v. Wooten, 227 Conn. 677, 685-86, 631 A.2d 271 (1998) (“ ‘[t]he exclusion of evidence from the jury is ... a drastic sanction’ ”).

       Before the trial court, defense counsel emphasized repeatedly that his discussion with the defendant’s wife was “inadvertent,” adding that his sole intention was to placate and comfort the witness. Defense counsel’s intent in this regard, however, is not controlling for the purpose of determining whether the trial court abused its discretion in finding that a sequestration violation had occurred. A sequestration order, and the remedy for its violation, is designed to protect the integrity of witness testimony, not to punish the attorney’s conduct. See State v. Falby, supra, 187 Conn. 27 (primary concern for fashioning remedy for sequestration violation is “ ‘fairness of the trial, not the culpability of the [offender]’ ”); see also State v. Cavell, supra, 235 Conn. 720 (same). Thus, that defense counsel might not have deliberately disclosed the witness’ testimony to Thibodeau, does not in and of itself undermine the propriety of the trial court’s conclusion that the discussion nonetheless violated the sequestration order.


source: Caselaw Access Project

author: VERTEFEUILLE, J. MCDONALD, C. J., with whom SULLIVAN, J.,

license: Public Domain

text:
    CADLEROCK PROPERTIES JOINT VENTURE, L.P. v. COMMISSIONER OF ENVIRONMENTAL PROTECTION ET AL.
    (SC 16170)
    McDonald, C. X, and Norcott, Palmer, Sullivan and Vertefeuille, Js.

      Argued January 20
    officially released July 18, 2000

      Jill Hartley, for the appellant (plaintiff).

      Patricia A. Horgan, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellees (defendants).
   Opinion

VERTEFEUILLE, J.

The plaintiff, Cadlerock Properties Joint Venture, L.P. (Cadlerock), appeals from the judgment of the trial court dismissing its administrative appeal from the decision of the defendant department of environmental protection (department) in which the named defendant, the commissioner of environmental protection (commissioner), issued an abatement order regarding the plaintiffs real property located in both Ashford and Willington. The order, which was issued on August 15, 1997, pursuant to Connecticut’s Water Pollution Control Act; General Statutes § 22a-416 et seq.; and the Solid Waste Management Act; General Statutes § 22a-207 et seq.; alleged that the plaintiff was maintaining a facility that was polluting state waters and further alleged that the plaintiff was maintaining a solid waste disposal facility on its property without a permit. The commissioner ordered Cadlerock to undertake extensive investigatory actions regarding the soil, groundwater and solid waste pollution, to undertake remedial actions to abate such pollution, to monitor the effectiveness of those remedial actions, and to remove all solid waste on the property.

The plaintiff appealed from the commissioner’s decision to issue the abatement order. On October 23, 1998, after conducting public hearings, the administrative hearing officer rejected the plaintiffs claim of selective enforcement and affirmed the commissioner’s order. The plaintiff appealed from the administrative decision to the Superior Court pursuant to General Statutes § 4-183, part of the Uniform Administrative Procedure Act (UAPA). General Statutes § 4-166 et seq. The trial court upheld the hearing officer’s decision and dismissed the appeal, and the plaintiff appealed. We affirm the judgment of the trial court.

The following undisputed facts are relevant to this appeal. The plaintiff is the present owner of a 335 acre parcel of land located in Ashford and Willington. The site contains two ponds and some intermittent watercourses; one third of the site constitutes wetlands. The groundwater on this site is classified as “GA” and thus, should be suitable to serve as a source of public or private water supply without treatment and should contain no chemical or biological constituents other than those of natural origin, according to state water quality standards. See General Statutes § 22a-426. The department received complaints about potential pollution on the site as early as 1977. Both the department, specifically its bureau of water management, and private environmental analysts conducted site investigations between 1991 and 1997 that revealed significant sources of soil, groundwater and solid waste pollution.

The site investigations revealed two principal areas of contamination. The northwest disposal area, consisting of approximately one-quarter acre of land in the northwest portion of the plaintiffs 335 acre property, had soil stained a blue-green color, with solid waste deposited on the surface and buried underground, and no vegetation. Soil tests revealed high levels of lead, copper, barium and cadmium, pollutants that pose a threat to human health and to groundwater quality. During a department investigation in 1992, Benjamin Schilberg acknowledged in writing that approximately thirty years earlier, he had leased this small portion of the site that later became known as the northwest disposal area. He admitted that he had burned insulated copper wire at the location to recover copper for resale, thereby causing copper oxidation of the soil.

A second contaminated area on the plaintiffs property is located in the south central portion of the site along Route 44. A restaurant and scrap metal business were operated on this site until about 1980, when the buildings were substantially damaged by fire. In 1990, Ashford Development Corporation (Ashford), then the owner of the property, demolished the burned out structures and disposed of the burned debris on this site without a permit. Solid waste has been observed on the surface and buried underground, and various contaminants (i.e., total petroleum hydrocarbons and volatile organic compounds) have been found in the soil. The hearing officer, after hearing uncorroborated expert testimony to the same effect, concluded that the pollution at the south central disposal area posed a threat to human health and was reasonably likely to pollute the groundwater.

The department never pursued any enforcement action nor did it discuss voluntary remediation with Schilberg. In 1993, the department tried unsuccessfully to persuade Ashford to address the pollution of the site voluntarily. The department did not pursue any enforcement action against Ashford because of a lack of resources within the department. In 1996, Cadle Properties of Connecticut, Inc. (Cadle Properties), obtained the site. After unsuccessfully trying to convince Cadle Properties to remediate voluntarily, the department issued an abatement order on February 26, 1997. On August 15, 1997, the department withdrew that order and issued an abatement order to the plaintiff, an affiliate of Cadle Properties, upon learning that the property had been transferred to the plaintiff.

The plaintiff filed an administrative appeal from the abatement order, claiming that the commissioner had engaged in selective enforcement in that Schilberg already had admitted in writing that he was responsible for polluting a portion of the site, but was not subject to any enforcement action. An administrative hearing officer conducted public hearings on November 24, November 25, December 3, December 11, and December 17, 1997. During the administrative hearings, Elsie Patton, the assistant director of the permitting, enforcement and remediation division in the department’s waste management bureau, testified that the department did not pursue Schilberg because he was responsible only for a portion of the pollution and pursuing enforcement action against both Schilberg and the plaintiff, the current property owner, would have delayed remediation of the entire site. The hearing officer rejected the selective enforcement defense and affirmed the commissioner’s order. On the plaintiffs appeal, the trial court affirmed that decision and dismissed the plaintiffs appeal.

The plaintiff appealed from the judgment of the trial court to the Appellate Court. Thereafter, we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. The plaintiff claims: (l)that the trial court improperly upheld the administrative hearing officer’s decision that the plaintiff failed to establish the affirmative defense of selective enforcement and improperly concluded that even if there were selective enforcement, the abatement order would not have been rendered void; (2) that the trial court improperly upheld the hearing officer’s eviden-tiary rulings (a) excluding from evidence a newspaper article quoting a department staff person as saying it was the department’s policy to pursue all polluters, and (b) preventing the plaintiff from discovering three internal department memoranda concerning prior enforcement action with respect to the site on the ground that the documents were protected by the attorney-client privilege and (c) not reaching the hearing officer’s evidentiary ruling allowing into evidence testimony allegedly regarding the parties’ settlement negotiations and the plaintiffs actions in response to the administrative order; and (3) that the trial court improperly affirmed the hearing officer’s decision despite the fact that it was clearly erroneous in view of the evidence in the record. We affirm the judgment of the trial court.

We begin by articulating the applicable standard of review in an appeal from the decision of an administrative agency. “Judicial review of [an administrative agency’s] action is governed by the [UAPA] . . . and the scope of that review is very restricted. . . . New Haven v. Freedom of Information Commission, 205 Conn. 767, 773, 535 A.2d 1297 (1988). With regard to questions of fact, it is neither the function of the trial court nor of this court to retry the case or to substitute its judgment for that of the administrative agency. Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986). Judicial review of the conclusions of law reached administratively is also limited. The court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. ... Id. Although the interpretation of statutes is ultimately a question of law . . . it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement. ... Id. Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts. New Haven v. Freedom of Information Commission, supra, 774.” (Citation omitted; internal quotation marks omitted.) State Board of Labor Relations v. Freedom of Information Commission, 244 Conn. 487, 493-94, 709 A.2d 1129 (1998).

We also have held that an exception is made “when a state agency’s determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference.” (Internal quotation marks omitted.) Burke v. Fleet National Bank, 252 Conn. 1, 10, 742 A.2d 293 (2000). The plaintiff claims that the department’s decision is not entitled to deference because this question of law previously has not been subject to judicial scrutiny. We disagree. This court previously has upheld the commissioner’s authority to issue a permit for a solid waste facility under General Statutes § 22a-208a (b) and to issue orders to abate pollution under General Statutes § 22a-432, which was relied upon to issue the abatement order to the plaintiff here. See, e.g., Starr v. Commissioner of Environmental Protection, 226 Conn. 358, 382, 627 A.2d 1296 (1993) (concluding that “pursuant to § 22a-432, the defendant was empowered to order a cleanup of polluted land without regard to fault or economic hardship”); Keeney v. L & S Construction, 226 Conn. 205, 206-207, 626 A.2d 1299 (1993) (upholding commissioner’s injunctive order under § 22a-208a); Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 590-91, 590 A.2d 447 (1991) (affirming commissioner’s discretion under § 22a-208a to order plaintiff to cease operating unpermitted solid waste disposal facility and to remove all solid waste).

Agencies, in general, are given broad discretion to exercise their regulatory authority. See Commission on Hospitals & Health Care v. Stamford Hospital, 208 Conn. 663, 673, 546 A.2d 257 (1988). The United States Supreme Court has compared an agency’s exercise of its enforcement power to that of a prosecutor. See Heckler v. Chaney, 470 U.S. 821, 832, 105 S. Ct. 1649, 84 L. Ed. 2d 714 (1985); Butz v. Economou, 438 U.S. 478, 515, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978). In Connecticut, the legislature has granted the department broad discretion to enforce the environmental laws. See, e.g., General Statutes §§ 22a-6, 22a-224, 22a-225 and 22a-432. This court has held specifically that the department has the discretion to choose the appropriate enforcement action to remedy pollution. See Starr v. Commissioner of Environmental Protection, supra, 226 Conn. 382. Furthermore, the department does not abuse its discretion by issuing an abatement order against a current property owner regardless of the owner’s culpability for the pollution of the property. See id., 393. With these principles in mind, we turn to the plaintiffs claims.

I

The plaintiffs first claim is that the trial court improperly affirmed the hearing officer’s decision that the plaintiff had failed to prove that the department had engaged in selective enforcement. We disagree.

“The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution is essentially a direction that all persons similarly situated should be treated alike. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S. Ct. 3249, 3254, 87 L. Ed. 2d 313 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216, 102 S. Ct. 2382, 2394, 72 L. Ed. 2d 786 [1982]). . . . Zahra v. Southold, 48 F.3d 674, 683 (2d Cir. 1995). A violation of equal protection by selective [treatment] arises if: (1) the person, compared with others similarly situated, was selectively treated; and (2) . . . such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person. LaTrieste Restaurant & Cabaret, Inc. v. Village of Port Chester, 40 F.3d 587, 590 (2d Cir. 1994) (quoting LeClair v. Saunders, 627 F.2d 606, 609-10 (2d Cir. 1980), cert. denied, 450 U.S. 959, 101 S. Ct. 1418, 67 L. Ed. 2d 383 [1981]).” (Internal quotation marks omitted.) Thomas v. West Haven, 249 Conn. 385, 392-93, 734 A.2d 535 (1999), cert. denied, 528 U.S. 1187, 120 S. Ct. 1239, 146 L. Ed. 2d 99 (2000). The claimant has the burden of proving a selective enforcement claim. See id., 391-93.

The plaintiff argues that the trial court improperly upheld the hearing officer’s determination that the plaintiff did not satisfy the first prong of a selective enforcement claim by comparing itself to other similarly situated parties. In particular, the plaintiff asserts that it compared the department’s treatment of it to that of Ashford, a prior owner, and Schilberg, a previous lessee who admitted polluting the site, neither of which was subject to any enforcement action. The trial court found that “[t]he plaintiff compares itself not to other similarly situated owners of property, but, rather, to other parties who participated in the pollution of the site. Such persons as nonowners would not be similarly situated.” We agree with the trial court that the plaintiff did not compare itself to other similarly situated parties.

Recently, we held that “the requirement imposed upon [plaintiffs claiming an equal protection violation [is that they] identify and relate specific instances where persons situated similarly in all relevant aspects were treated differently .... Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir. 1989). . . . Rubinovitz v. Rogato, 60 F.3d 906, 910 (1st Cir. 1995).” (Emphasis in original; internal quotation marks omitted.) Thomas v. West Haven, supra, 249 Conn. 402. We agree with the trial court that the plaintiff only compared itself with others who were involved in creating the pollution at the property. During the administrative hearing, the plaintiffs counsel cross-examined Thomas O’Connor, a department environmental analyst responsible for investigating the site and recommending administrative action. O’Connor admitted that the department’s treatment of the plaintiff differed from that of both Schilberg and Ashford, neither of which was issued an abatement order. Schilberg admitted in writing to having burned copper wire and temporarily deposited the waste in the northwest disposal area. The hearing officer made findings that Ashford demolished previously burned structures and disposed of the debris without a permit in the south central disposal area. Both areas were determined to be significant sources of soil, groundwater and solid waste pollution. We find that the plaintiff compared itself only to previous polluters of the site and therefore failed to prove the first prong of the selective enforcement claim. The plaintiff did not compare itself to similarly situated current owners of the property who were not directly responsible for the pollution. Thus, the trial court properly affirmed the healing officer’s decision that the department did not engage in selective enforcement.

II

The plaintiff next argues that the trial court improperly upheld certain of the hearing officer’s evidentiary rulings, to wit: (1) to exclude from evidence a newspaper article quoting a department staff person as stating that it was the department’s policy to pursue all polluters; and (2) to prevent the plaintiff from discovering three internal department memoranda concerning prior enforcement action with respect to the site on the ground that the documents were protected by the attorney-client privilege. The plaintiff also claims that the trial court improperly did not reach the hearing officer’s evidentiary ruling that allegedly allowed into evidence testimony regarding the parties’ settlement negotiations and the plaintiffs actions in response to the administrative order. The trial court found that “[t]he plaintiffs evidentiary claims relate to the evidence which would purportedly contradict the assertion that the parties responsible for the active pollution were not the subjects of the order to avoid a more complex hearing. The relevancy of such evidence is negligible in view of the limited impact.”

We agree with the state that the record for reviewing these claims is incomplete given that the trial court dismissed the evidentiary claims without articulating a basis for each claim. “It is the appellant’s burden to provide an adequate record for review. Practice Book § 60-5; Barnes v. Barnes, 190 Conn. 491, 494, 460 A.2d 1302 (1983). It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision; Gerber & Hurley, Inc. v. CCC Corp., 36 Conn. App. 539, 543, 651 A.2d 1302 (1995); to clarify the legal basis of a ruling; Leverty & Hurley Co. v. Commissioner of Transportation, 192 Conn. 377, 379, 471 A.2d 958 (1984); or to ask the trial judge to rule on an overlooked matter. Wolk v. Wolk, 191 Conn. 328, 335 n.1, 464 A.2d 780 (1983). In the absence of any such attempts, we decline to review this issue.” Rivera v. Double A Transportation, Inc., 248 Conn. 21, 33-34, 727 A.2d 204 (1999). We find that the trial court record is inadequate to review the plaintiffs evidentiary claims.

Ill

The plaintiffs final claim is that the trial court improperly affirmed the hearing officer’s decision because it was clearly erroneous in view of the evidence in the record. We disagree.

“Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Dufraine v. Commission on Human Rights & Opportunities, 236 Conn. 250, 259, 673 A.2d 101 (1996); Schallenkamp v. DelPonte, 229 Conn. 31, 40, 639 A.2d 1018 (1994). Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact. Griffin Hospital v. Commission on Hospitals & Health Care, [supra, 200 Conn. 496]; Connecticut Natural Gas Corp. v. Public Utilities Control Authority, 183 Conn. 128, 134, 439 A.2d 282 (1981). Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion. Perkins v. Freedom of Information Commission, [228 Conn. 158, 164, 635 A.2d 783 (1993)]; New Haven v. Freedom of Information Commission, [supra, 205 Conn. 773].

“The substantial evidence rule governs judicial review of administrative fact-finding under the UAPA. General Statutes § 4-183 (j) (5) and (6). An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . Connecticut Building Wrecking Co. v. Carothers, [supra, 218 Conn. 593]; Connecticut Light & Power Co. v. Dept. of Public Utility Control, 219 Conn. 51, 57, 591 A.2d 1231 (1991). The substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action. . . . The United States Supreme Court, in defining substantial evidence in the directed verdict formulation, has said that it is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. . . . Dufraine v. Commission on Human Rights & Opportunities, supra, 236 Conn. 260; see Connecticut Building Wrecking Co. v. Carothers, supra, 593.” (Internal quotation marks omitted.) Dolgner v. Alander, 237 Conn. 272, 280-82, 676 A.2d 865 (1996).

The trial court properly affirmed the hearing officer’s findings that there was substantial evidence in the record that significant sources of soil, groundwater and solid waste pollution existed on the plaintiffs property. The plaintiff did not offer any evidence to contradict these findings. Furthermore, the trial court properly affirmed the hearing officer’s decision that the plaintiff failed to prove that the department had engaged in selective enforcement. There was no evidence in the record to suggest that the department acted arbitrarily or abused its discretion in issuing an abatement order to the plaintiff in order to remedy the pollution on the property.

The judgment is affirmed.

In this opinion NORCOTT and PALMER, Js., concurred.

MCDONALD, C. J., with whom SULLIVAN, J.,

joins, dissenting. I disagree with the majority’s conclusion that the trial court properly affirmed the hearing officer’s decision that the plaintiff alone must clean up a property that the defendants knew was polluted by a third party with connections to the defendants. I would reverse the judgment of the trial court.

The plaintiff argues that the defendants engaged in selective enforcement because another potentially responsible party, Berijamin Schilberg, had admitted to the defendants in writing that he was responsible for polluting a portion of the site but had not been the subject of any enforcement action under General Statutes § 22a-225. In the majority’s view, the plaintiff, to prove selective enforcement, should be compared with “similarly situated current owners of the property who were not directly responsible for the pollution,” not with others who were, in fact, responsible for polluting the property. “[E]qual protection [however] does not just mean treating identically situated persons identically. . . . [Rather], the requirement imposed upon [p]laintiffs claiming an equal protection violation [is that they] identify and relate specific instances where persons situated similarly in all relevant aspects were treated differently . . . .” (Citation omitted; emphasis altered; internal quotation marks omitted.) Thomas v. West Haven, 249 Conn. 385, 402, 734 A.2d 535 (1999), cert. denied, 528 U.S. 1187, 120 S. Ct. 1239, 146 L. Ed. 2d 99 (2000). The “relevant aspects” include “whether the plaintiffs are similarly situated to another group for purposes of the challenged government action.” Klinger v. Dept. of Corrections, 31 F.3d 727, 731 (8th Cir. 1994). Section 22a-225 (a) provides that abatement orders may be issued to “any person who violates any provision of this chapter,” not only to current property owners. Accordingly, I believe that, for purposes of liability under § 22a-225, the appropriate comparison is to all others that are potentially responsible parties under § 22a-225, and not to only other current owners of the property. I would conclude that Schilberg was similarly situated to the plaintiff under § 22a-225 for purposes of the challenged government action, the order requiring the cleanup of the property.

The majority also concludes that the plaintiff failed to prove that the defendants’ action against the plaintiff was motivated by a malicious or bad faith intent to injure. The plaintiffs argument, however, is not that the defendants were motivated by malice or bad faith to injure, but rather that the government action was based upon an arbitrary classification. In Oyler v. Boles, 368 U.S. 448, 456, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962), the United State Supreme Court expressly stated that a party may establish a federal constitutional violation under a claim of selective enforcement in violation of equal protection if “the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.” (Emphasis added.) See also United States v. Armstrong, 517 U.S. 456, 464, 116 S. Ct. 1480, 134 L. Ed. 2d 687 (1996); LeClair v. Saunders, 627 F.2d 606, 611 (2d Cir. 1980). The plaintiffs claim is that the defendants’ decision not to pursue Schilberg was motivated by political bias. In 1994, Schilberg’s son was appointed by the commissioner of the department of environmental protection as a member of the underground storage tank petroleum cleanup account review board. As a member of the board, he was well acquainted with many of the high ranking members of that department.

Admittedly, “the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation”; Oyler v. Boles, supra, 368 U.S. 456; nor is it contrary to the department’s authority under § 22a-225. However, it “should not extend to the point where [the government] may operate with unbridled discretion . . . by whim or caprice.” LeClair v. Saunders, supra, 627 F.2d 608-609. “[T]he administration of laws ‘with an evil eye and an unequal hand, so as practically to make unjust and illegal discrimination between persons in similar circumstances’ constitutes a denial of equal protection.” United States v. Berrios, 501 F.2d 1207, 1209 (2d Cir. 1974).

The importance of preventing impropriety and the appearance of impropriety in any government action concerning one’s property rights cannot be overstated. “Democracy works ‘only if the people have faith in those who govern, and that faith is bound to be shattered when high officials and their appointees engage in activities which arouse suspicions of malfeasance and corruption.’ United States v. Mississippi Valley Generating Co., 364 U.S. 520, 562, 81 S. Ct. 294, 5 L. Ed. 2d 268 (1961).” Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 390, 120 S. Ct. 897, 145 L. Ed. 2d 886 (2000). “Nothing can corrode respect for a rule of law more than the knowledge that the government looks beyond the law itself to arbitrary considerations . . . .” United States v. Berrios, supra, 501 F.2d 1209.

In Low v. Madison, 135 Conn. 1, 10, 60 A.2d 774 (1948), this court held that the action of the Madison zoning commission in effect granting a zone change application was invalid because of the relationship that existed between the zoning applicant and a member of the zoning commission. The court reasoned that “[z]oning restrictions limit the individual’s free use of his real estate in the interest of the general public good. The administration of power of that nature, whether it be denominated legislative or quasi-judicial, demands the highest public confidence. Anything which tends to weaken such confidence and to undermine the sense of security for individual rights which the citizen is entitled to feel is against public policy.” Id., 9. As explained in cases interpreting Low, the appearance of impropriety sufficiently weakens the respect and confidence in government that is so vital to our system of democracy. See Gaynor-Stafford Industries, Inc. v. Water Pollution Control Authority, 192 Conn. 638, 648, 474 A.2d 752, cert. denied, 469 U.S. 932, 105 S. Ct. 328, 83 L. Ed. 2d 265 (1984) (test not whether personal interest does conflict, but whether reasonably might conflict); Thorne v. Zoning Commission, 178 Conn. 198, 205, 423 A.2d 861 (1979) (same); Josephson v. Planning Board, 151 Conn. 489, 493-95, 199 A.2d 690 (1964) (same). We also have held that “the principles of law stated [in Low] are not restricted solely to [planning or zoning] boards. These criteria and principles of law apply to the exercise of powers of all municipal agencies and boards which affect property rights in the community.” Stocker v. Waterbury, 154 Conn. 446, 453-54, 226 A.2d 514 (1967). I see no reason why state government action in this case should not be held to the same standard.

In this case, the defendants obtained, in 1992, a signed admission from Schilberg, a prior lessee, in which he acknowledged that he had burned insulated copper wire on a one-quarter acre area of the site. The portion of the property that Schilberg acknowledged having polluted was one of two contaminated areas on the property. Despite having an admission from Schilberg that he actually had polluted the land, which one department analyst testified was very “rare,” the defendants never pursued any remediation or initiated an enforcement action against him. The defendants cited a lack of resources as the reason for their inaction in the past. It was not until 1997, after the plaintiff had purchased the property, that the defendants pursued an enforcement action under § 22a-225 against only the plaintiff. The defendants claim that pursuing more than one party would have “complicate[d] the administrative process,” and would have frustrated their primary goal, which was to have the entire site cleaned up. They argue that, because Schilberg was responsible for only one of the two contaminated areas, they decided to pursue the plaintiff alone in order to avoid delays in the enforcement process that would have resulted from the parties disputing the allocation of cleanup costs. The defendants concede, however, that allocation of liability is irrelevant because the parties are jointly and severally hable under § 22a-225. Consequently, the defendants patently failed to address why they never took any action against Schilberg after obtaining his admission, but instead pursued the plaintiff alone for the cost of cleanup.

Moreover, the commissioner’s appointment of Schilberg’s son to an advisory board raises the specter of favorable treatment of a known polluter with a relationship to the department at the expense of a nonpolluter without such a relationship. This is certainly not a situation that inspires public confidence in the even-handed administration of government. As we stated in Thomas, “equal protection does not just mean treating identically situated persons identically. If a bad person is treated better than a good person, this is just as much an example of unequal treatment as when a bad person is treated better than an equally bad person or a good person worse than an equally good person.” (Internal quotation marks omitted.) Thomas v. West Haven, supra, 249 Conn. 401, quoting Esmail v. Macrane, 53 F.3d 176, 179 (7th Cir. 1995). It is, to me, inescapable that a property owner’s confidence in the administration of government power over that owner’s property would be undermined in these circumstances.

Accordingly, I respectfully dissent.

       References herein to both the department and the commissioner are to the “defendants.”

       General Statutes § 22a-424 provides in relevant part: “The commissioner shall have the following powers and duties . . .
      “(f) To issue . . . orders prohibiting or abating pollution of the waters of the state, or requiring the construction, modification, extension or alteration of pollution abatement facilities or monitoring systems, or any parts thereof, or adopting such other remedial measures as are necessary to prevent, control or abate pollution . . . .”
      Pursuant to General Statutes § 22a-432, “[i]f the commissioner finds that any person has . . . created a condition . . . or is maintaining any facility or condition which reasonably can be expected to create a source of pollution to the waters of the state, he may issue an order to such person to take the necessary steps to correct such potential source of pollution. ...”

       In particular, General Statutes § 22a-208a (a) provides in relevant part: “The Commissioner of Environmental Protection may issue, deny, modify, renew, suspend, revoke or transfer a permit, under such conditions as he may prescribe and upon submission of such information as he may require, for the construction, alteration and operation of solid waste facilities, in accordance with the provisions of this chapter and regulations adopted pursuant to this chapter. ...”
      General Statutes § 22a-225 (a) provides in relevant part: “The commissioner may issue . . . orders correcting or abating violations under this chapter or adopting other remedial measures as are necessary to correct or abate such violations. Such orders may be issued to any person who violates any provision of this chapter or any regulation adopted or permit issued pursuant to this chapter, or to the owner of any land on which the violation occurs regardless of whether the owner of the land participated in the violation. ...”

       General Statutes § 4-183 provides in relevant part: “(a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. . . .
      “(j) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. For purposes of this section, a remand is a final judgment. . . .”

       General Statutes § 22a-426 (a) provides in relevant part: “The Commissioner of Environmental Protection shall adopt, and may thereafter amend, standards of water quality applicable to the various waters of the state or portions thereof as provided in this section. . . .”

       In oral argument before this court, the defendants indicated that the plaintiff, as the current property owner that is subject to the abatement order, can seek contribution from others like Schilberg, who caused the pollution. This is supported by General Statutes § 22a-452 (a), which provides that “[a]ny person, firm, corporation or municipality which contains or removes or otherwise mitigates the effects of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes resulting from any discharge, spillage, uncontrolled loss, seepage or filtration of such substance or material or waste shall be entitled to reimbursement from any person, firm or corporation for the reasonable costs expended for such containment, removal, or mitigation, if such oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes pollution or contamination or other emergency resulted from the negligence or other actions of such person, firm or corporation. When such pollution or contamination or emergency results from the joint negligence or other actions of two or more persons, firms or corporations, each shall be liable to the others for a pro rata share of the costs of containing, and removing or otherwise mitigating the effects of the same and for all damage caused thereby.”

       Cadle Properties of Connecticut, Inc., is also referred to as Cadle Company of Connecticut, Inc., in some of the documentation in these proceedings.

       Cadlerock was certified in Ohio as a limited partnership in November, 1996. At that time, Daniel C. Cadle was listed as the general partner. Cadle was also the named president of Cadle Properties, which was incorporated in Connecticut on November 1, 1994.

       Patton testified that “[Schilberg’s] activities only created part, of the problem [a]nd to order him to clean up part of the problem would not result in wha.t [the department’s] goal is ... to get the whole site cleaned up ....’’ Patton explained that “when [the department] issue[s] orders to multiple parties, that complicates the enforcement process.” The department decided that “the most efficient way for us to get a cleanedup site is to go with a single order [to the property owner].”
      The dissent contends that “allocation of liability [for cleanup costs] is irrelevant because the parties are jointly and severally hable under § 22a-225." We disagree. The plaintiffs joint and several liability with Schilberg applies only to the small contamination area in the northwest portion of the plaintiffs property; Schilberg has no liability for the larger area of contamination in the south central portion of the property. As Patton testified, the department’s goal was the quick and efficient cleanup of the entire site. As we will discuss in this opinion; see part I of this opinion; the department acted within its broad discretion in pursuing the plaintiff alone.

       In oral argument before this court, the defendants acknowledged that aside from Schilberg, who had admitted in writing his responsibility for polluting the approximately one-quarter acre of the site in the northwest disposal area, they have not determined who polluted the remainder of the 335 acre site. Thus, Ashford is not a named polluter despite the hearing officer’s findings and the trial court’s affirmance of those findings.

       Even if we were to assume, arguendo, that the plaintiff satisfied the first prong of the selective enforcement claim, the plaintiff failed to prove the second prong — that the department’s treatment of the plaintiff was motivated by a malicious or bad faith intent to ipjure. The plaintiff argued that the trial court should have considered whether the department failed to pursue Schilberg because it was motivated by an arbitrary standard or classification, in particular, a political bias. Specifically, the plaintiff asserted that Schilberg’s son, Bernard Schilberg, as a member of the underground storage tank petroleum cleanup account review board since 1994, had contact with department staff members, including the chief of the department’s waste management bureau.
      Regarding the second prong of the selective enforcement claim, this court previously held that “[when a plaintiff] does not allege selective treatment based upon his race, religion, or any intentional effort by [the] defendants to punish him for exercising his constitutional rights, [the plaintiff] must demonstrate that [the] defendants maliciously singled [him] out . . . with the intent to injure him. . . . Crowley v. Courville, 76 F.3d 47, 52-53 (2d Cir. 1996).” (Internal quotation marks omitted.) Thomas v. West Haven, supra, 249 Conn. 393.
      We agree with the hearing officer that the evidence did not support a conclusion that the department had declined to pursue enforcement actions against Schilberg because of a malicious or bad faith intent to injure the plaintiff, in particular, that the department had a political bias. The plaintiff has the burden of proving that administrative officials are biased. See Clis-ham v. Board of Police Commissioners, 223 Conn. 354, 362, 613 A.2d 254 (1992). The hearing officer found that Patton and O’Connor “were not aware” of and “had no contact” with Bernard Schilberg at the time they decided to issue the abatement order. Patton testified that she alone made the decision to issue an abatement order against the plaintiff, the current property owner, because it was the most efficient way 1o remediate the site. Moreover, the abatement order was issued by the bureau of water management, with which Bernard Schilberg was not affiliated. Furthermore, the hearing officer stated in his final decision that Patton testified that “Benjamin Schilberg was responsible, at most, for only a portion of the pollution at the sito and issuing an order to both [him] and the [plaintiff] would have unduly delayed the [administrative] hearing process and thus the overall remedial ion of the site.” According to the hearing officer, Patton understood that the department’s “primary enforcement goal [was] to get contaminated sites cleaned up as quickly and as efficiently as possible . . . .” We agree with the hearing officer’s findings that the department’s intention was to remediate efficiently the pollution on the site and, therefore, there was no evidence of a malicious or bad faith intent toward the plaintiff.

       The plaintiff further claims that the trial court improperly concluded that even if the department had engaged in selective enforcement, the order against the plaintiff would not have been rendered void. Because we have rejected the plaintiffs selective enforcement claim and the supporting evi-dentiary claims; see part II of this opinion; we decline to reach the issue of whether the order would have been void.

       Even if we were to assume, arguendo, that the plaintiff has preserved this issue, it could not prevail. We agree with the plaintiff that these memoranda were not protected by the attorney-client privilege. We have held that “ ‘communications to an attorney for a public agency are protected from disclosure by privilege if the following conditions are met: (1) the attorney must be acting in a professional capacity for the agency, (2) the communications must be made to the attorney by current employees or officials of the agency, (3) the communications must relate to the legal advice sought by the agency from the attorney, and (4) the communications must be made in confidence.’ [Shew v. Freedom of Information Commission, 44 Conn. App. 611, 620-21, 691 A.2d 29 (1997)].” Shew v. Freedom of Information Commission, 245 Conn. 149, 159, 714 A.2d 664 (1998). Our in camera review of the memoranda in question here reveals that they were not communications to an attorney for a public agency for the purpose of seeking legal advice. The attorney-client privilege protects only those disclosures that are necessary to obtain informed legal advice. See id., 157. The privilege does not protect against the disclosure of underlying factual information. See Upjohn Co. v. United States, 449 U.S. 383, 395-96, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981). The memoranda were written by department officials to department counsel and labeled at the top “CONFIDENTIAL — ATTORNEY CLIENT PRIVILEGE, ” but were not created for the purpose of obtaining legal advice. The memoranda conveyed factual information regarding captioned topics such as “Site Location,” “Nature of Problem,” “Date of Discovery,” “Action Proposed,” “Justification for Proposed Action,” “Relief Sought,” and “Anticipated Controversy.” Because no legal advice was sought, tírese memoranda should not have been protected by the attorney-client privilege. Furthermore, there is nothing in those documents that would have been helpful to the plaintiffs claim.

       General Statutes § 22a-225 (a) provides for the issuance of abatement orders to “any person who violates any provision of this chapter or any regulation adopted or permit issued pursuant to this chapter, or to the owner of any land on which the violation occurs regardless of whether the owner of the land participated in the violation. . . .”

       A member of the zoning commission, who was the husband of the applicant, “assumed the dual role of public officer, as a member of the commission, and agent or advocate of his wife’s private interest in the application before the commission. After conducting his role as advocate, he assumed his role as public official and, by his vote, made it possible to secure the relief he had advocated.” Low v. Madison, supra, 135 Conn. 9.

         In 1993, the defendants also did not pursue any action with respect to the owner of the land at that time, Ashford Development Corporation (Ashford). Ashford was responsible for the contamination on a second area of the site on which it demolished and disposed of burned debris that remained from a fire on the property.