author: PALMER, J. NORCOTT, J.,

text:
    STATE OF CONNECTICUT v. RICHARD POUNCEY
    (SC 15412)
    Callahan, C. X, and Norcott, Katz, Palmer and Peters, Js.

      Argued March 19
    officially released July 22, 1997

      Lauren Weisfeld, assistant public defender, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were Elizabeth Baran, assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, for the appellee (state).
   Opinion

PALMER, J.

In this certified appeal, the defendant, Richard Pouncey, asks us to invoke our inherent supervisory authority over the administration of justice to reverse his conviction of two counts of attempted assault in light of certain objectionable remarks made by the assistant state’s attorney during her closing argument to the jury. The jury convicted the defendant of two counts of attempted assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (1). The defendant appealed from the judgment of the trial court to the Appellate Court, claiming, inter alia, that he was entitled to a new trial as a result of racially inflammatory comments made by the assistant state’s attorney during her closing argument to the jury. The Appellate Court rejected the defendant’s claim and affirmed his conviction. State v. Pouncey, 40 Conn. App. 624, 673 A.2d 547 (1996). We granted the defendant’s petition for certification to appeal limited to the following issue: “In the circumstances of this case, should the Appellate Court have exercised its supervisory power to order a new trial because of prosecutorial misconduct in the prosecutor’s closing argument?” State v. Pouncey, 237 Conn. 911, 675 A.2d 457 (1996). We affirm the judgment of the Appellate Court.

The facts that the jury reasonably could have found are set forth in the opinion of the Appellate Court. “On the evening of December 14, 1991, four women had dinner at a restaurant on York Street in New Haven. As they left the restaurant, they observed the defendant and a pregnant female engaged in a heated argument at the comer of York and Chapel Streets. As the pregnant woman walked away from the defendant, he walked quickly toward the women appearing to be extremely angry and emotionally upset. The women were apprehensive and moved closer together to give the defendant room to pass them on the sidewalk. When the defendant reached them, he asked, ‘What the hell is wrong with you?’ ‘Are you looking for trouble?’ or ‘What the fuck are you looking at?’ He then collided with one of the women, punched her in the jaw and knocked her down. A second woman told the defendant, ‘Keep going, we don’t want any trouble.’ The defendant then lunged at her, grabbed her by the front of her coat collar and, in a savage and wild manner, began to slash, punch and stab at her with a box cutter. The victim sustained a cut behind her left ear that was two inches long and one-quarter inch deep. Her coat was cut in four or five places.

“As the first woman got up from the sidewalk, she attempted to pull the second woman away from the defendant. The defendant then slashed her face with the box cutter, cutting her upper lip and slashing her lower lip open from its lower edge down to her chin, causing her to fall back down to the sidewalk.

“The defendant left when a parking lot attendant, who saw the victims bleeding, intervened. When the police arrived, they found the defendant hiding in an alley a short distance away. The police retrieved the box cutter, detained the defendant and returned him to the scene of the assault. After the victims identified the defendant as the assailant, the police arrested him and placed him in a police cruiser, at which time he stated that he had ‘cut the fucking bull dikes because they were surrounding [him]. Who gives a fuck about them.’ ” State v. Pouncey, supra, 40 Conn. App. 626-27.

On appeal to the Appellate Court, the defendant claimed that the trial court improperly had denied his motion for a mistrial on the ground that certain comments made by the assistant state’s attorney during her closing argument violated his due process right to a fair trial. In the alternative, the defendant maintained that the Appellate Court should invoke its supervisory authority to grant him a new trial in light of the assistant state’s attorney’s improper remarks.

The Appellate Court summarized the facts relevant to these claims as follows. “The prosecuting attorney opened her final argument as follows: ‘[The four women] got together for dinner on December 14, 1991, a nice relaxing dinner. They had plans to go out after dinner. They were minding their own business when they were confronted with what suburbanites would call the ultimate urban nightmare.’

“The defendant’s counsel made no objection and the prosecutor’s initial argument was completed. During his summation to the jury, the defendant’s counsel characterized the challenged comment as racist. On closing argument, the prosecutor, in replying to the defendant’s closing arguments regarding self-defense, commented that ‘[t]hese women were in the wrong place at the wrong time in an urban neighborhood.’ Again no objection was made by the defendant’s counsel. After the luncheon recess the defendant moved for a mistrial. The court denied the motion and also denied the defendant’s request for a curative instruction. The court stated: ‘I don’t think that it is of such significance that it calls for any remarks by the court. If you felt it was significant you should have interrupted at the time. Something you gave some thought to over lunch apparently.’ ” State v. Pouncey, supra, 40 Conn. App. 634.

The Appellate Court rejected the defendant’s due process claim, concluding that, “[i]n the context of this trial, the effect of the state’s improper comments, if in fact they were improper, cannot be said to have affected the outcome of the trial, or to have so infected the trial with unfairness as to make the defendant’s resulting conviction a denial of due process.” Id., 636-37. Specifically, the Appellate Court reasoned that “[t]he prosecutor’s comments were isolated, brief and confined to closing arguments. Defense counsel responded to the prosecutor’s first comment. The prosecutor’s comments were not the culmination of an improper theme developed throughout the trial, nor was a pattern of misconduct discernible. The defendant’s argument of a cumulative prejudice, suffered as a result of the state’s earlier reference to his incarceration, is without merit. Furthermore, the trial court clearly instructed the jury that the defendant was entitled to the presumption of innocence, and that the arguments of counsel during final summation were not evidence. The court also admonished the jury to ‘keep in mind that this defendant . . . justly relies on you to carefully consider the claims made in his behalf by his counsel . . . and to consider all of the evidence and find him not guilty if the law and the facts [require] such a verdict.’ Furthermore, the state presented a very strong case against the defendant.” Id., 636. The Appellate Court did not expressly address the defendant’s alternate claim that the court should reverse his conviction in the exercise of its supervisory authority over the administration of justice.

Judge Spear dissented from the majority’s decision not to grant the defendant a new trial under its supervisory powers, stating: “I do not quarrel with the majority’s due process analysis. Indeed, [t]he fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct. . . . State v. Binet, 192 Conn. 618, 628, 473 A.2d 1200 (1984); State v. Millstein, 8 Conn. App. 581, 590, 513 A.2d 1253, cert. denied, 201 Conn. 814, 518 A.2d 72 (1986). Our Supreme Court has stated, however, that [t]his court, nevertheless, has supervisory power to vacate a judgment of conviction and to order a new trial to deter prosecutorial misconduct, which, while not so egregious as to deprive the defendant of a fair trial, is unduly offensive to the maintenance of a sound judicial process. . . . State v. Fullwood, 194 Conn. 573, 584, 484 A.2d 435 (1984).” (Emphasis in original; internal quotation marks omitted.) State v. Pouncey, supra, 40 Conn. App. 639-40.

Judge Spear further stated that “[i]t is common knowledge that the population of the suburbs in Connecticut is overwhelmingly white, while most of the black population is concentrated in the cities. This state of affairs could hardly have escaped the prosecutor’s notice. Given the starkly different racial composition of suburban and urban Connecticut, given the fact that the defendant is black while the two victims and the other prosecution witnesses are white, and given the lack of any valid reason for the challenged statements, the racial appeal is obvious.

“The state argues that the comment was not racist because it merely pointed out the well known fact that random acts of street violence occur more frequently in cities than elsewhere. . . . Such a fact, the state asserts, is related to the evidence and the issues in the case because it supported the state’s contention that the defendant lashed out at innocent bystanders as a way of venting his anger.

“This explanation digs a deeper hole for the prosecutor. The state does not explain, and I do not understand, how general impressions about the frequency of violence in urban neighborhoods could have shed any light on the particulars of this case. The state asks this court to approve the proposition that the jury could have properly used its collective general knowledge about violence in the cities as evidence that the defendant committed acts of violence in this case. More importantly, the state does not even attempt to explain why the attack in this case was peculiarly a suburbanite [’s] . . . ultimate urban nightmare. There is certainly no logical basis for the notion that the degree of fear and trauma associated with a razor attack turns on whether the victim is a suburbanite and whether the location is urban. I can conceive of no explanation for the suburban-urban juxtaposition of the comments other than as an improper racial appeal to the jury. Racial conflict and divisiveness in our society is of such a long-standing and intractable nature that the prosecutor’s duty scrupulously to avoid appeals to racial prejudice is particularly apropos in cases such as this one. I view one such appeal as one too many because it is unduly offensive to the maintenance of a sound judicial process. . . . State v. Fullwood, supra, 194 Conn. 584.” (Emphasis in original; internal quotation marks omitted.) State v. Pouncey, supra, 40 Conn. App. 640-42 (Spear, J., dissenting).

The sole issue presented by this appeal is whether the Appellate Court should have invoked its supervisory authority to grant the defendant a new trial in light of the allegedly inflammatory remarks made by the assistant state’s attorney. Although we agree with the defendant that those statements were objectionable, we are not persuaded that reversal of his judgment of conviction is warranted.

It is well established that “ ‘[a] prosecutor is not an ordinary advocate. His [or her] duty is to see that justice is done and to refrain from improper methods calculated to produce prejudice and wrongful decisions by the jury.’ State v. Malley, 167 Conn. 379, 389, 355 A.2d 292 (1974) (Bogdanski, J., dissenting); State v. Ubaldi, 190 Conn. 559, 574, 462 A.2d 1001 (1983); State v. Has kins, 188 Conn. 432, 456-57, 450 A.2d 828 (1982); State v. Ferrone, 96 Conn. 160, 168-69, 113 A. 452 (1921).” State v. Falcone, 191 Conn. 12, 22, 463 A.2d 558 (1983). “ ‘[B]y reason of his [or her] office, [a prosecutor] usually exercises great influence upon jurors. His [or her] conduct and language in the trial of cases in which human life or liberty are at stake should be forceful, but fair, because [a prosecutor] represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice, or resentment.’ ” State v. Couture, 194 Conn. 530, 564-65, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985), quoting State v. Ferrone, supra, 168-69.

“While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or even to suggest an inference from, facts not in evidence, or to present matters which the jury have no right to consider.” (Internal quotation marks omitted.) State v. Falcone, supra, 191 Conn. 22. We have cautioned repeatedly that a prosecutor should “avoid arguments which are calculated to influence the passions or prejudices of the jury, or which would have the effect of diverting the jury’s attention from their duty to decide the case on the evidence.” (Internal quotation marks omitted.) State v. Bova, 240 Conn. 210, 243-44, 690 A.2d 1370 (1997); State v. Couture, supra, 194 Conn. 562; State v. Carr, 172 Conn. 458, 470, 374 A.2d 1107 (1977); see also State v. Williams, 204 Conn. 523, 538, 529 A.2d 653 (1987). Thus, even when prosecutorial misconduct is not so egregious as to implicate the defendant’s right to a fair trial, an appellate court may invoke its supervisory authority to reverse a criminal conviction when the prosecutor deliberately engages in conduct that he or she knows, or ought to know, is improper. See, e.g., State v. Ubaldi, supra, 190 Conn. 575; see also State v. Ruiz, 202 Conn. 316, 330, 521 A.2d 1025 (1987). Such a sanction generally is appropriate, however, only when the “[prosecutor’s] conduct is so offensive to the sound administration of justice that only a new trial can effectively prevent such assaults on the integrity of the tribunal.” State v. Ubaldi, supra, 575.

The question before us is whether the remarks that the assistant state’s attorney made during closing argument are so repugnant to the fair administration of justice that the Appellate Court should have granted the defendant a new trial to send a strong message that such conduct will not be tolerated. Appellate courts possess “an inherent supervisory authority over the administration of justice. Pinsky v. Statewide Grievance Committee, 216 Conn. 228, 232, 578 A.2d 1075 (1990); State v. Holloway, 209 Conn. 636, 645-46, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989); State v. Ross, 208 Conn. 156, 158-59, 543 A.2d 284 (1988); State v. Madera, 198 Conn. 92, 99, 503 A.2d 136 (1985); State v. Ubaldi, [supra, 190 Conn. 575]. The standards that [are] set under this supervisory authority are not satisfied by observance of those minimal historic safeguards for securing trial by reason which are summarized as due process of law . . . . McNabb v. United States, 318 U.S. 332, 340, 63 S. Ct. 608, 87 L. Ed. 819 (1942). Rather, the standards axe flexible and are to be determined in the interests of justice. State v. Ross, supra, 159; State v. Patterson, 230 Conn. 385, 397-98, 645 A.2d 535 (1994).” (Internal quotation marks omitted.) State v. Jones, 234 Conn. 324, 346-47, 662 A.2d 1199 (1995).

“Of course, our supervisory authority is not a form of free-floating justice, untethered to legal principle.” United States v. Ming He, 94 F.3d 782, 792 (2d Cir. 1996). Thus, “[e]ven a sensible and efficient use of the supervisory power ... is invalid if it conflicts with constitutional or statutory provisions.” (Internal quotation marks omitted.) Bank of Nova Scotia v. United States, 487 U.S. 250, 254, 108 S. Ct. 2369, 101 L. Ed. 2d 228 (1988). “Reversal of a conviction under [such] supervisory powers . . . should not be undertaken without balancing all of the interests involved: the extent of prejudice to the defendant; the emotional trauma to the victims or others likely to result from reliving their experiences at a new trial; the practical problems of memory loss and unavailability of witnesses after much time has elapsed; and the availability of other sanctions for such misconduct. United States v. Hasting, 461 U.S. 499, 505-507, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983); State v. Ubaldi, supra, [190 Conn.] 572.” State v. Ruiz, supra, 202 Conn. 330.

With these principles in mind, we consider the context in which the objectionable remarks were made. As noted by Judge Spear, the defendant in this case is black and his two female victims are white. Furthermore, at the time of trial, at least one of the two victims and all of the jurors lived in suburban towns. In light of this context, the defendant characterizes the assistant state’s attorney’s remarks as intentional pandering to the racial fears of the suburban jurors. The state disputes this claim, but acknowledges that the statements were susceptible of a racial interpretation. Because the assistant state’s attorney’s remarks reasonably could have been construed as an appeal to racially based fears of urban crime, we conclude that the comments were outside the bounds of appropriate argument.

Having so concluded, we must now determine whether the sanction urged by the defendant, namely, reversal of his conviction, is warranted. First, our careful review of the entire record reveals that the assistant state’s attorney made no other remarks during the course of the trial that even arguably could be described as racially insensitive or provocative. On the contrary, the objectionable remarks were brief, isolated, and not so prejudicial as to prompt an immediate objection by the defendant. Second, “[t]he trial court not only expressly found that the prosecutor’s remarks were insufficiently prejudicial to warrant a mistrial, but concluded that they were not sufficiently prejudicial to require a curative instruction. Therefore, the trial court did not consider the remarks to rise to the level of ‘prosecutorial misconduct.’ ” State v. Pouncey, supra, 40 Conn. App. 635. As we previously have stated, the trial court’s ruling “is entitled to weight because of the vantage point from which it can observe and evaluate the circumstances of the trial. The trial court is in a better position to determine the propriety of the remarks of counsel and whether or not they are harmful. State v. Glenn, 194 Conn. 483, 493, 481 A.2d 741 (1984).” (Internal quotation marks omitted.) State v. Pouncey, supra, 635. Consequently, we agree with the Appellate Court that any prejudice suffered by the defendant as a result of the comments was not so great as to have had a bearing on the jury’s verdict.

Moreover, it is indisputable that a reversal of the defendant’s conviction would force the victims in this case to relive, during a new trial, the emotional trauma that they suffered as a result of the defendant’s vicious attack. In addition, because the incident occurred more than six years ago, the potential for memory loss by the victims and other key witnesses is a legitimate concern. These considerations militate heavily against reversal of the defendant’s conviction.

Furthermore, the defendant does not claim either that the assistant state’s attorney in this case previously has used racially charged rhetoric in her arguments to other juries or that state prosecutors generally have engaged in a pattern or practice of making arguments to juries that may be considered exploitative of racial bias or prejudice. If such apattern orpractice of misconduct were discernible among the state prosecutors, reversal of the defendant’s conviction would serve the important purpose of demonstrating that such conduct cannot, and will not, be tolerated. In this case, however, we are loathe to invoke our supervisory power to reverse a conviction that has been obtained after a full and fair trial absent a colorable claim of such a pattern of prosecutorial misconduct.

Finally, we emphasize that nothing in the record before us indicates that the objectionable comments were the product of a deliberate appeal by the assistant state’s attorney to racial biases or stereotypes. Thus, contrary to the defendant’s claim, we do not ascribe a racial intent or motive to the assistant state’s attorney in making these remarks. Although her comments were ill advised, they contain no direct reference to race, and any racial implication contained therein is not so direct or obvious as to lead us to conclude that such an improper connotation was intended. Cf. State v. Couture, supra, 194 Conn. 564; State v. Ubaldi, supra, 190 Conn. 567, 573-75. Furthermore, the presence of a black juror on the jury panel supports the state’s argument that the assistant state’s attorney did not intend for her comments to be construed as an appeal to racial prejudice. Indeed, because a unanimous verdict was necessary for the state to obtain a conviction, it is highly unlikely that the assistant state’s attorney intentionally would have risked alienating one or more jurors with a racially inflammatory argument.

As the state’s representative, a prosecutor must take great care to avoid using language in argument that is susceptible to an improper racial connotation. Such rhetoric has no place in the courtrooms of this state. We previously have exercised our inherent supervisory authority to safeguard against the improper consideration of race in criminal trials; see State v. Holloway, supra, 209 Conn. 645-46; and we will not hesitate to do so again if necessary. Under the specific circumstances of this case, however, and because there is no allegation of a pattern or practice of racially provocative conduct by any prosecutor in this state, we see no reason why the extreme remedy of a reversal is necessary either to sanction the state or to deter prosecutors from engaging in racially inappropriate argument in future cases.

After careful consideration of all of the factors relevant to the resolution of the defendant’s claim, we conclude that reversal of the defendant’s conviction is not warranted. Accordingly, we agree with the Appellate Court’s decision not to invoke its supervisory authority to grant the defendant a new trial.

The judgment of the Appellate Court is affirmed.

In this opinion CALLAHAN, C. J., and KATZ and PETERS, Js., concurred.

NORCOTT, J.,

dissenting. The prosecutor summarized the state’s case for the jury with the following comments: “[T]hey were confronted with what suburbanites would call the ultimate urban nightmare. . . . [Tjhese women were in the wrong place at the wrong time in an urban neighborhood.” The majority held that this court should not utilize its supervisory powers and reverse the judgment of conviction in this case. Notwithstanding the gravity of the underlying crime in this case and the dramatic remedy that is sought by the defendant, I believe that the prosecutor’s comments in the context of this case were so prejudicial to the defendant that a new trial is required. Accordingly, I respectfully dissent.

I recognize and agree with the majority that this court has and should exercise its supervisory powers to reverse a conviction in a criminal case only under the gravest of circumstances. State v. Ubaldi, 190 Conn. 559, 575, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983). “Indeed, it is well established that serious prosecutorial misconduct, regardless of the prosecutor’s intentions, may so pollute a criminal prosecution as to require a new trial, even without regard to the prejudice to the defendant.” (Internal quotation marks omitted.) State v. Couture, 194 Conn. 530, 563, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). Where even a subtle pandering to the racial factor is implicated in a trial, the determination of what constitutes a “grave circumstance” is resolved.

The majority agrees that the prosecutor’s comments in the present case were ill advised, “outside the bounds of appropriate argument,” and “could have been construed as an appeal to racially based fears of urban crime,” but were not so egregious as to warrant a new trial. The majority seeks to neutralize the comments by couching them as “brief, isolated, and not so prejudicial as to prompt an immediate objection by the defendant.” The majority agrees with the Appellate Court that “ ‘[t]he prosecutor’s comments were not the culmination of an improper theme . . . nor ... a pattern of misconduct ....’” I disagree. The prosecutor’s summation cut to the very heart of its theme of this case. Delivered in the culmination of the prosecution’s case to the juiy, these comments placed this crime in a context that effectively resonated racial fears. The remarks revealed the prosecution’s emphasis on the defendant’s race and invited the jury to consider it as a relevant, and more importantly, an aggravating factor, in the assault of two white female victims. In addition to sidestepping the prosecution’s portrayal of the crime, the majority ignores the powerful impact of the timing of the comments. Among the final words of persuasion the juiy would hear before deliberation, the prosecution’s appeal to the suburban jury’s racial fears was likely, even if not intended, to inflame and infect their consideration of the merits of the case, diverting the juiy’s attention “from the ultimate question of guilt or innocence that should be the central concern in a criminal proceeding.” Stone v. Powell, 428 U.S. 465, 490, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976).

I also disagree with the majority’s focus on whether the improper racial connotation was intentional. In his dissent to the Appellate Court majority opinion, Judge Spear cogently explained why the challenged prosecutorial comments warranted a new trial. Inherent in that explanation, for me, is the belief that the intent of the prosecutor matters little when the effect of the comment improperly panders to racial fears, a consideration unarguably beyond the proper deliberation of the jury. Nearly one half century ago, the United States Supreme Court counselled prosecutors “to refrain from improper methods calculated to produce a wrongful conviction . . . .” Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 79 L. Ed. 1314 (1935), overruled on other grounds, Stirone v. United States, 361 U.S. 212, 80 S. Ct. 270, 4 L. Ed. 2d 252 (1960). “The Court made clear, however, that the adversary system permits the prosecutor to prosecute with earnestness and vigor. ... In other words, while he may strike hard blows, he is not at liberty to strike foul ones.” (Citation omitted; internal quotation marks omitted.) United States v. Young, 470 U.S. 1, 7, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985). Counsel should always “avoid arguments which are calculated to influence the passions or prejudices of the jury, or which would have the effect of diverting the jury’s attention from [its] duty to decide the case on the evidence.” (Internal quotation marks omitted.) State v. Bova, 240 Conn. 210, 243-44, 690 A.2d 1370 (1997). The line separating acceptable from improper advocacy is not easily drawn; United States v. Young, supra, 7; but in the facts of the present case, even the majority concedes that these statements improperly pandered to racial fears and prejudices of the jury. Statements appealing to the consideration of race, such as the ones made in this case, are “the direct antithesis of every principle of American justice and fair play. They alone are enough to cast grave doubts upon the validity of the entire proceedings.” Malinski v. New York, 324 U.S. 401, 434, 65 S. Ct. 781, 89 L. Ed. 1029 (1945) (Murphy, J., dissenting). The remarks, regardless of the prosecutor’s intent, were inflammatory and posed a threat of improper influence of the jury. Effect, rather than intent, should be sufficient for this court to intervene.

I regard Judge Spear’s analysis as so persuasive and well reasoned that to repeat the substance of his dissenting opinion, rather than emphasize my agreement with it, would risk detracting from the power of its original composition and, therefore, I will abstain from such an attempt and simply assert that I incorporate its reasoning by reference.

What remains for this dissent, then, is this. To safeguard against the improper consideration of race in a criminal trial through the use of our supervisoiy powers is not a new concept for this court. State v. Holloway, 209 Conn. 636, 645-46, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989). The prosecutor’s remarks in the present case were tantamount to pandering to racial fears. As Judge Spear aptly noted: “Remarks such as the ones at issue here only add to a perception of unfairness, and such a perception, whether accurate or not, is clearly not in keeping with the well known maxim that justice must not only be done, but must appear to be done.” State v. Pouncey, supra, 40 Conn. App. 642. Such conduct undermines the confidence and integrity of our court system and requires our intervention. “Those clothed with authority in court rooms of this nation have the duty to conduct and supervise proceedings so that an accused person may be adjudged solely according to the dictates of justice and reason. . . . [Jjudges and officers of the court should take the initiative to create an atmosphere free from undue passion and emotionalism. This necessarily requires the exclusion of attacks or appeals made by counsel tending to reflect upon the race, creed or color of the defendant.” Malinski v. New York, supra, 324 U.S. 434 (Murphy, J., dissenting). Our court has the duty to ensure that criminal proceedings are “conducted in surroundings free from poisonous and dangerous irrelevancies that might inflame the jury to the detriment of the defendants.” Id. Remarks such as those made by the prosecution in the present case are not be tolerated in any way, shape, or form in the Connecticut courts. Once this court recognized the prosecutor’s comments as exploitative of racial fears, it has the responsibility, indeed the duty, to reverse a conviction tainted by such an irrelevant and prejudicial consideration. It seems incongruous to me that the majority here, in essence, concedes the racial connotation of the comments, yet pays mere lip service to the egregiousness of the remarks by ultimately embracing the discretionary determination of the trial court that the challenged comments did not rise to the level of reversible prosecutorial misconduct. I cannot ascribe nefarious motive to the prosecutor in this case, nor do I need to, in order to conclude from the record and the words themselves, that the conduct was so patently offensive as to bring it within the penumbra of our prior rulings that, pursuant to our supervisory powers, the sanction of a reversal of a criminal trial is to be afforded only when the prosecutorial conduct is “so offensive to the sound administration of justice that only a new trial can effectively prevent such assaults on the integrity of the tribunal.” State v. Ubaldi, supra, 190 Conn. 575.

In accordance with these principles, this case warrants the unsettling, unpopular, yet just decision to reverse the defendant’s judgment of conviction. I believe that failure to do so lends legitimacy to the emphasis on race and exploitation of racial fears in arguments to the jury. Resolution of these legal issues that dwell within the disturbing concentric circles of race and crime is so difficult that those charged with the responsibility of prosecuting criminal cases on behalf of all the people of this state would be well advised to avoid the area as if it were the proverbial mine field.

It is for these reasons that I respectfully dissent.

       General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”
      General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical iqjury to another person, he causes such iqjury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       The trial court imposed a total effective sentence of twenty-four years imprisonment, suspended after twenty years, and five years probation.

       The defendant also claimed that the trial court improperly had: (1) instructed the jury on self-defense and reasonable doubt; and (2) failed to declare a mistrial after the assistant state’s attorney, during her cross-examination of a defense witness, made reference to the fact that the defendant was incarcerated in lieu of bond. These claims, which were rejected by the Appellate Court, are outside the scope of this certified appeal.

       In particular, defense counsel stated: “A couple of other comments with respect to the prosecutor’s discussion with you. She is very adamant [that] this is not a dramatic reading, this is a criminal case. She talked with you about a suburbanite’s urban nightmare. What does that mean? What does that have to do with this case? Does it have to do with four white women standing outside the pub and [the defendant] being a black? That hadn’t entered the case until I heard that comment. I don’t know what that means other than that. What’s that doing in this case and why is she talking about that? Let’s focus on the facts . . . .”

       Defense counsel argued in support of the motion for a mistrial as follows: “The basis of the [motion] is [that the assistant state’s attorney] . . . referred to a suburbanite’s ultimate urban nightmare both in [her initial] closing argument and [in her rebuttal] closing argument.” After the trial court noted that, in his summation to the jury, defense counsel had responded to the assistant state’s attorney’s use of the words “suburbanite’s urban nightmare,” defense counsel continued: “[I did so i]n response to [the assistant state’s attorney] with respect to that [which] I would term as pandering to racism, nothing short of that on these jurors. I don’t know what else that could mean. I don’t know what the distinction between suburbs and urban areas [is]. Certainly in the context of four white women, I think only two were from the suburbs, and [the defendant] being black and being from New Haven, I don’t know what other way that could conceivably have been taken by the jury and so I would be moving for a mistrial with respect to those comments. I think again such pandering with respect to racial fears and racial differences in this particular case, certainly in light of the history of this case and the discussions from the beginning of this case with respect to the fact that all the state’s victims, all the state’s witnesses were white, [the defendant] is black, we had a lot of discussion with respect to that during jury selection and [considering] that I can’t read it any other way than to tell white people on the jury that they are — they ought to be afraid of black people like [the defendant] so let’s do something about that. I move for a mistrial.”

       We note that the defendant did not file a motion seeking an articulation by the Appellate Court regarding this claim.

       By its very nature, an appellate court’s decision whether to invoice its supervisory power in aparticular case is a highly discretionary one. Although ordinarily the scope of our review of a discretionary judicial ruling is limited, we depart from that general principle in this case because this court bears the ultimate responsibility for the supervision of the administration of justice in the courts of this state. For this reason, we conclude that de novo review of the defendant’s supervisory authority claim is appropriate under the circumstances of this case.

       “A great deal is at stake in a criminal trial. The interests involved go beyond the private interests at stake in the ordinary civil case. They involve significant public interests. . . . [T]he criminal jury trial has a role in protecting not only the liberty of the accused, but also the entire citizenry from overzealous or overreaching state authority. Duncan v. Louisiana, 391 U.S. 145, 156, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968).” State v. Patterson, 230 Conn. 385, 398, 645 A.2d 535 (1994), on appeal after remand, 236 Conn. 561, 674 A.2d 416 (1996). As we previously have noted, the Appellate Court unanimously rejected the defendant’s claim that his due process rights were violated by the two inappropriate remarks made by the assistant state’s attorney during closing argument. Because we did not certify that question; see footnote 3 of this opinion; it is not before us.

       The record does not indicate where the second victim resided.

       The state contends that the assistant state’s attorney’s use of the term “suburbanites” was not a reference either to the victims or to the jurors. Instead, the state maintains that the remarks invoked “common knowledge” regarding the fears that suburbanites have of urban high crime areas and, further, that the comments were intended solely to underscore the state’s claim that the defendant’s attack was random and unprovoked. Even if we assume, arguendo, that crime statistics support a claim that New Haven has a higher crime rate than its suburban areas, those statistics do not justify rhetoric, like that engaged in by the assistant state’s attorney in this case, that is irrelevant to the question of the defendant’s guilt and potentially could arouse the passions or fears of the jury.

       At the defendant’s sentencing on December 11, 1992, the trial court noted the “obvious emotional scars [inflicted] on both of the victims” as a result of the incident. At trial, the victim whose scalp was slashed by the defendant testified that she still felt, pain in that area, that she had been terrorized by the incident, and that she had scheduled a visit with a counselor “because of my continued fear as a result [of] the incident. . . . I’m finding it very difficult to perform my duties [in nursing school] without being afraid sometimes.” The assistant state’s attorney represented that this victim was too traumatized to attend the defendant’s sentencing hearing. A friend of this victim who had witnessed the assault, however, did attend the hearing, and explained that the victim “no longer comes out . . . never joins us for any activities. ... I watched [her] lose twenty pounds.” The second victim, who required more than forty stitches to repair her mouth and chin, did speak at the defendant’s sentencing and stated, “I still definitely have physical pain in my face, my lips and in my jaw. . . . [WJhenever I look in the mirror I see my scar and feel the attack all over again.”

       It is undisputed that one of the six jurors who rendered the verdict in this case was black.

       The dissent concludes that the prosecutor’s comments were “so prejudicial to the defendant” that their “[ejffect, rather than [the prosecutor’s) intent, should be sufficient for this court to intervene.” Although prejudice to the defendant is one factor to be considered in determining whether a conviction should be set aside in the exercise of our supervisory authority, we must balance all of the relevant considerations in reaching such a determination. State v. Ruiz, supra, 202 Conn. 330; State v. Ubaldi, supra, 190 Conn. 572. Moreover, both the Appellate Court majority and -Judge Spear expressly rejected the defendant’s claim that the prejudicial effect of the prosecutor’s comments violated the defendant’s due process right to a fair trial. State v. Pouncey, 40 Conn. App. 636-37, 639. Because we have not certified the defendant’s due process claim, that issue is not properly before us, and we will not convert the defendant’s supervisory authority claim, which we did certify, into a constitutional claim, which we did not.

       I fully agree with Judge Spear’s dissenting opinion that, given that the defendant was black and the victims were white women from the suburbs, he could conceive of no explanation for the prosecutor’s reference to the “ ‘suburbanite’s . . . ultimate urban nightmare’ . . . other than as an improper racial appeal to the jury.” State v. Pouncey, 40 Conn. App. 624, 641-42, 673 A.2d 547 (1996).


source: Caselaw Access Project

author: KATZ, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. RAYMOND MARQUIS
    (SC 15559)
    Callahan, C. J., and Borden, Norcott, Katz and Palmer, Js.
    Argued June 5
    officially released July 22, 1997

      Matthew J. Collins, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief were James E. Thomas, state’s attorney, Edward Narus, assistant state’s attorney, and Nancy Gillespie, former assistant state’s attorney, for the appellee (state).
   Opinion

KATZ, J.

The issue in this certified appeal is whether a trial court has the discretion, under State v. Jarzbek, 204 Conn. 683, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 188 S. Ct. 1017, 98 L. Ed. 2d 982 (1988), and General Statutes § 54-86g, to order that a child witness be examined by an expert witness for the defense before deciding whether to grant the state’s motion for videotaped testimony pursuant to § 54-86g (a). We conclude that the trial court has the discretion to order such an examination and that the trial court in this case properly exercised that discretion.

The following facts are relevant to this appeal. The defendant was charged in a long form information with one count of sexual assault in the first degree in violation of General Statutes (Rev. to 1991) § 53a-70 (a) (2) and one count of risk of injury to a child in violation of General Statutes (Rev. to 1991) § 53-21. The alleged victim was the defendant’s daughter, R, who, at the time of the alleged acts, was four years old. On July 7, 1993, the state filed a motion for permission to videotape R’s testimony outside the defendant’s presence, in accordance with State v. Jarzbek, supra, 204 Conn. 683, and § 54-86g. The trial court, Miaño, J., heard the motion and, on July 30, 1993, denied it without prejudice.

On February 1, 1994, at a hearing before the trial court, Corrigan, J., over the defendant’s objection, the state renewed its motion, asserting that R was unable to testify in the presence of the defendant and that the denial of the state’s motion would preclude it from producing her as a witness. At that time, the state indicated that it had no objection to the defendant having his own expert, Albert J. Solnit, a child psychiatrist, examine R. Soon thereafter, the defendant sought a court order authorizing such an examination. The state withdrew its consent for Solnit to examine R and filed a memorandum in opposition to the defendant’s motion. The defendant then renewed his objection to a second hearing on the state’s motion for videotaped testimony, claiming that the state had no new evidence of R’s inability to testify in the presence of the defendant. The trial court ruled that it would allow a new hearing on the motion, based upon its understanding that the court that originally heard the state’s motion had denied it without prejudice so that the motion could be reheard by the court conducting the trial. Regarding the defendant’s request that Solnit be allowed to examine R, the trial court indicated that such an examination was neither expressly permitted nor prohibited by § 54-86g, but that the rules of practice gave the trial court the “right ... to order discovery and disclosure where it appears to be fair.” The trial court indicated that it would rule on the defendant’s motion after the close of the state’s evidence in the Jarzbek hearing.

On February 10, 1994, the state completed its evidence regarding the proposed videotaping of R’s testimony and the defendant again requested that the trial court deny the state’s motion. The trial court responded that it believed that the state had established a prima facie case for videotaping, but the court also granted the defendant’s request to have Solnit examine R so that Solnit might offer his opinion as to the need for videotaped testimony. After a short recess, the state advised the court that neither the state nor R’s guardian ad litem wanted R to be examined. The state further indicated that although R’s mother had reservations about allowing an examination by Solnit, she was not opposed to it. Despite the opinion of R’s mother, the state objected to making R available for an examination by Solnit and requested that the court rule on its pending motion to permit the videotaping of R’s testimony. In response to the state’s request, the trial court denied the motion. Both parties then moved for dismissal. The trial court dismissed the information and granted the state permission to appeal pursuant to General Statutes § 54-96.

On appeal to the Appellate Court, the state claimed that the trial court improperly had: (1) determined that the defendant was entitled to have his psychiatric expert examine R before the court could grant the state’s motion; and (2) denied the state’s motion without exercising its statutory discretion pursuant to § 54-86g. State v. Marquis, 36 Conn. App. 803, 653 A.2d 833 (1995). The Appellate Court declined to review the issues raised by the state, concluding that the record was inadequate for review. Id. That court concluded that the factual and legal bases of the trial court’s ruling were unclear and that, in light of the state’s failure to request an articulation, it read an ambiguous record to support, rather than to undermine, the judgment. Id., 804.

This court granted the state’s petition for certification to appeal, limited to the following issue: “Did the Appellate Court properly affirm the trial court’s judgment dismissing the information on the ground that it was impossible to ascertain from the record the basis on which the trial court denied the state’s motion to videotape the victim’s testimony.” State v. Marquis, 233 Conn. 902, 657 A.2d 641 (1995). We subsequently reversed the judgment of the Appellate Court as to the sufficiency of the record, concluding that the record was unambiguous and that “a reasonable reading of the record disclose [d] that the trial court refused to permit videotaping of the child solely because the defendant’s psychiatrist was not permitted to examine the child.” State v. Marquis, 235 Conn. 659, 663, 668 A.2d 710 (1995). We then remanded the case to the Appellate Court for its consideration of the merits of the trial court’s ruling. Id. On remand, the Appellate Court determined that the trial court had improperly ordered an examination of the child by a defense expert as quid pro quo to its granting of the state’s motion for videotaped testimony pursuant to § 54-86g, and had failed to exercise its discretion under State v. Jarzbek, supra, 204 Conn. 683, when it denied the state’s motion. Consequently, the Appellate Court reversed the judgment of the trial court. State v. Marquis, 42 Conn. App. 186, 200, 679 A.2d 386 (1996).

Subsequently, the defendant filed a petition for certification to appeal, which we granted limited to the following issue: “May a trial court, in exercising its discretion under State v. Jarzbek, [supra, 204 Conn. 683], and General Statutes § 54-86g, take into account the fact that the state’s motion is supported by expert testimony and, therefore, order the child witness to be examined by the defendant’s expert?” State v. Marquis, 239 Conn. 934, 684 A.2d 709 (1996). We conclude that because the Appellate Court misinterpreted the basis upon which the trial court had granted the defendant’s request for the expert examination and denied the state’s motion for videotaped testimony, the Appellate Court incorrectly construed the nature of the trial court’s actions and its authority to take such actions. Accordingly, we answer the certified question in the affirmative and reverse the judgment of the Appellate Court. Further facts will be provided as necessary.

The defendant argues that the trial court had the authority to order an examination of R by Solnit before deciding whether to grant the state’s motion for videotaped testimony. Specifically, the defendant contends that, because the state presented as evidence the testimony of an expert witness regarding the psychological impact the defendant’s presence would have on R, fundamental fairness required that the defendant be allowed to have his own expert examine her. The state argues in response that the trial court has no authority, discretionary or otherwise, to order an examination of a child whose videotaped testimony the state seeks to elicit, and that even if the trial court in this case did have discretionary authority, it abused that discretion by failing to exercise it.

The following facts are necessary for the resolution of this claim. On February 8, 1994, after the state had refused to give its permission for Solnit to interview R, the defendant moved that the court order the examination. The state objected to such an order, claiming that it was beyond the authority of the court. In response to the state’s motion for a second Jarzbek hearing, and the defendant’s motion for a court-ordered examination, the court stated: “It would be my intention to hear the evidence that [Edward Narus, Assistant State’s Attorney] has, and for the purpose of counsel, the court can’t agree with everything Mr. Narus has indicated. There’s nothing in the statute that either permits or prohibits the defense from having an examination. There is in the practice rules the right of the court to order discovery and disclosure where it appears to be fair. There’s nothing in the case law that appears to prevent the defense from having such a discovery, but I think it’s obvious to the court at this point that we should go on with the evidence you have for a determination as to what procedure should be followed . . . .” (Emphasis added.)

On February 10, 1994, after the state had presented its evidence in support of videotaping, the defendant once again moved the court to deny the state’s motion, claiming that the state had not met its burden of proof. The court inquired whether the defendant wanted to offer evidence, and the following colloquy took place:

“The Court: The state has produced a prima facie case. You have evidence to present?

“[Matthew Collins, Defense Counsel]: I do have evidence, but I would also ask, as part — I would ask that I be allowed to have the child examined as part of this hearing also.

“The Court: That’s the order I get. I just have given the order on that motion to have the child examined by Dr. Solnit as a matter of this motion.” (Emphasis added.)

After a short recess, the state renewed its opposition to the court-ordered examination:

“Mr. Collins: Your Honor, I’m ready to proceed, but apparently Mr. Narus has something he’d like to address to the court.

“Mr. Narus: That’s correct, Your Honor. As I understand Your Honor’s comments prior to the recess, you are, in fact, or have indicated that the child victim here, the case must be turned over to the defense expert, Mr. Solnit, for examination of her at 2 o’clock. Is that — that’s as I understand that.

“The Court: That’s what I had said and ordered.

“Mr. Narus: Okay. And in that case, the state obviously had made a motion to oppose that request by the defense counsel, and I would ask the court to make a ruling on that motion to deny that request of the state.

“The Court: I thought that was the answer to the motion. I held a decision in reservation until I heard the state’s case, and I’m satisfied that the state has given a prima facie case. So at this point of time, I grant the defense motion to have the child examined by their expert, which I believe is Dr. Solnit, and that comes as a matter of Practice Book rules of discovery or the state of mind as offered to limit confrontation or for any other purpose. The other — adverse side has an opportunity of examining for that state of mind.

“In this particular matter, if the state is going to succeed in videotaping the child’s testimony out of the presence of the defendant and/or out of the presence of the jury, the defense is entitled in that hearing to determine whether or not such a procedure is necessary. So at this point in time, I have sufficient evidence that the state has produced a prima facie case, and the defense at this time is entitled to examination of the child.” (Emphasis added.)

At that point, the state informed the court that it, as well as the child’s guardian ad litem, objected to the examination and would not allow Solnit access to R. The state then moved for a ruling on its motion for videotaping:

“Mr. Narus: Okay, okay. Then with respect to the state’s motion for videotaping, in light of the state’s refusal to — or I shouldn’t say refusal, but the state’s objection to undergoing the process by which the court ordered the state to turn the child over to the defense, I would then ask for a ruling on the motion for videotaping at this point in time.

“The Court: On the refusal of the state to permit the child to be examined by the defense psychiatrist, then the court does have to deny the motion for videotaping.”

The Appellate Court apparently understood these colloquies to mean that the trial court had ordered the defense examination of R as a quid pro quo for granting the state’s motion to videotape her testimony. We conclude that this interpretation is incorrect. The trial court was not establishing quid pro quo, but, rather, was ensuring that the defendant be given the meaningful Jarzbek hearing to which he was entitled under the United States and Connecticut constitutions. State v. Jarzbek, supra, 204 Conn. 704-705. In this case, a meaningful hearing required that Solnit be allowed to examine R in order to form his own conclusions as to R’s ability to testify in the presence of the defendant and to advise the court of the necessity for videotaped testimony.

“[I]n criminal prosecutions involving the alleged sexual abuse of children of tender years, the practice of videotaping the testimony of a minor victim outside the physical presence of the defendant is, in appropriate circumstances, constitutionally permissible. [The] holding that appropriate circumstances may warrant a departure from strict compliance with confrontation requirements does not, however, signal a relaxation of the underlying evidentiary requirement that appropriate circumstances be proven to exist. . . . There is no constitutional justification for automatically depriving all criminal defendants of the right of physical confrontation during the videotaping of a minor victim’s testimony. . . .

“[A] 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. Furthermore, the state bears the burden of proving such compelling need by clear and convincing evidence. Cf. United States v. Wade, 388 U.S. 218, 240, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967) (application of clear and convincing standard to questions of admissibility involving constitutional requirements going to the reliability of evidence); United States v. Thevis, [665 F.2d 616, 631 (5th Cir.), cert. denied, 456 U.S. 1008, 102 S. Ct. 2300, 73 L. Ed. 2d 1303 (1982)] (application of clear and convincing standard to determine whether defendant waived right of confrontation by reason of his own misconduct). . . . [I]n light of the constitutional right of confrontation at stake here, the primary focus of the trial court’s inquiry must be on the reliability of the minor victim’s testimony . . . .” (Citation omitted.) State v. Jarzbek, supra, 204 Conn. 704-705.

The state concedes that a Jarzbek hearing, by its very nature, requires that the trial court exercise discretion in reviewing the evidence regarding a child witness’ ability to testify reliably in the presence of the defendant. “Jarzbek requires an individualized, case-by-case assessment of the need to resort to the videotaping of the complaining minor witness’ testimony outside the physical presence of the accused.” State v. Bonello, 210 Conn. 51, 58-59, 554 A.2d 277, cert. denied, 490 U.S. 1082, 109 S. Ct. 3268, 106 L. Ed. 2d 612 (1989). The state nevertheless contends that the trial court had no authority to order that Solnit be allowed to examine R in order to give testimony at that hearing. In support of its argument, the state relies in part on General Statutes § 54-86h, companion legislation to § 54-86g that precludes pro forma competency hearings for child witnesses. The state claims that § 54-86h demonstrates a legislative intent to shield child victims from examinations by defense experts. We are not persuaded.

In State v. James, 211 Conn. 555, 563-65, 560 A.2d 426 (1989), we compared § 54-86h to rule 601 of the Federal Rules of Evidence, which provides in relevant part that “[e]very person is competent to be a witness . . . .” We noted that “[t]his rule ‘reflects the philosophy that few persons are inherently incapable of testifying in a useful manner.’ Comment, ‘The Competency Requirement for the Child Victim of Sexual Abuse: Must We Abandon It?’, 40 U. Miami L. Rev. 245, 252 (1985).” State v. James, supra, 563. We also noted, however, that “ [r]ule 601 has not been construed to remove wholly the traditional control a judge may exercise to ensure that evidence presented to a jury has at least a minimum degree of reliability and relevance.” Id., 564. The trial court maintains the authority to admit or exclude the testimony of a child based on the court’s assessment of the child’s ability to offer relevant and rehable evidence. By requesting permission to videotape R’s testimony outside the presence of the defendant, the state cahed into question R’s ability to testify reliably in a formal courtroom setting and in the presence of the defendant. In such a situation, the trial court has the authority to take those measures it considers necessary to determine that ability. Id.

“The [ability] of a witness [to testify reliably] is a matter peculiarly within the discretion of the trial court and its ruling will be disturbed only in a clear case of abuse or of some error in law. State v. Orlando, 115 Conn. 672, 675, 163 A. 256 [1932].” State v. Manning, 162 Conn. 112, 115, 291 A.2d 750 (1971). In the present case, the trial court concluded that the defendant was entitled to have Solnit examine R for the purpose of testifying at the Jarzbek hearing, thereby providing the court with information that the trial court considered critical, under the facts of this case, to make an informed decision. In ordering that the examination take place, the trial court implicitly acknowledged that, although the state had established a prima facie case for videotaping, the court’s own assessment needs and fundamental fairness to the defendant required that Solnit be allowed to examine R.

“[T]he ends of justice will best be served by a system . . . [that] gives both parties the maximum possible amount of information with which to prepare their cases and thereby reduces the possibility of surprise at trial. See, e.g., Brennan, ‘The Criminal Prosecution: Sporting Event or Quest for Truth?,’ 1963 Wash. U.L.Q. 279; American Bar Association Project on Standards for Criminal Justice, Discovery and Procedure Before Trial 23-43 (Approved Draft 1970); Goldstein, ‘The State and the Accused: Balance of Advantage in Criminal Procedure,’ 69 Yale L.J. 1149 (1960).” Wardius v. Oregon, 412 U.S. 470, 473-74, 93 S. Ct. 2208, 37 L. Ed. 2d 82 (1973). “[I]n the absence of a strong showing of state interests to the contrary, discovery must be a two-way street.” Id., 475. In the present case, the state moved for a procedure that called into question R’s ability to testify in the presence of the defendant, yet denied the defendant the opportunity to obtain evidence in opposition to the motion, evidence that the trial court deemed necessary to make a fully informed decision. For the state to take such a position is antithetical to the constitutional underpinnings of a Jarzbek hearing.

We cannot say that the trial court’s conclusion, following the state’s evidence, which included expert testimony, was clearly erroneous or a clear abuse of discretion. See State v. Manning, supra, 162 Conn. 115. If the defendant is entitled to a hearing on the state’s motion for videotaped testimony, he is entitled to have the trial court ensure that such a hearing is meaningful because, as we recognized in Jarzbek, the hearing on the motion serves to protect “the right of an accused to confront witnesses against him as guaranteed by the confrontation clause of both the federal and state constitutions. U.S. Const., amends. VI, XIV; Conn. Const., art. I, § 8; Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973); Pointer v. Texas, [380 U.S. 400, 403-404, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965)]; State v. Maldo nado, 193 Conn. 350, 356, 478 A.2d 581 (1984); State v. Wilson, 188 Conn. 715, 721, 453 A.2d 765 (1980); State v. Hackett, 182 Conn. 511, 517, 438 A.2d 726 (1980).” State v. Jarzbek, supra, 204 Conn. 691-92.

We agree, therefore, with the defendant that the trial court recognized and properly exercised its discretionary authority when it granted the defendant’s request to have Solnit examine R for the purpose of providing expert opinion evidence at the Jarzbek hearing. It necessarily follows that, when the state refused to produce the child for the court-ordered examination or to allow her to testify in open court, the court properly denied the state’s motion for videotaped testimony. Because the state had made it clear that R would not testily in open court, and had further admitted that without R’s testimony it would be unable to proceed with the prosecution of its case against the defendant, the court properly granted the parties’ motions for dismissal.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court.

In this opinion the other justices concurred.

       General Statutes § 54-86g provides inpertinentpart: “Testimony of victim of child abuse. Court may order testimony taken outside courtroom. Procedure. (a) In any criminal prosecution of an offense involving assault, sexual assault or abuse of a child twelve years of age or younger, the court may, upon motion of the attorney for any party, order that the testimony of the child be taken in a room other than the courtroom in the presence and under the supervision of the trial judge hearing the matter and be televised by closed circuit equipment in the courtroom or recorded for later showing before the court. Only the judge, the defendant, the attorneys for the defendant and for the state, persons necessary to operate the equipment and any person who would contribute to the welfare and well-being of the child may be present in the room with the child (luring his testimony, except that the court may order the defendant excluded from the room or screened from the sight and hearing of the child only if the state proves, by clear and convincing evidence, that the child would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that a compelling need exists to take the testimony of the child outside the physical presence of the defendant in order to insure the reliability of such testimony. If the defendant is excluded from the room or screened from the sight and hearing of the child, the court shall ensure that the defendant is able to observe and hear the testimony of the child, but that the child cannot see or hear the defendant. The defendant shall be able to consult privately with his attorney at all times during the taking of the testimony. The attorneys and the judge may question the child. If the court orders the testimony of a child to be taken under this subsection, the child shall not be required to testify in court at the proceeding for which the testimony was taken. . . .”

       General Statutes (Rev. to 1991) § 53a-70 provides in relevant part: “(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. . . .”

       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 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 trial court appears to have been relying upon Practice Book § 745, which grants the judicial authority the right, upon motion of the defendant and a showing of good cause, to order such discovery “as the interests of justice may require.” Although § 745 was repealed effective October 1, 1995, that provision was in effect at the relevant time.

       General Statutes § 54-96 provides: “Appeals by the state from Superior Court in criminal cases. Appeals from the rulings and decisions of the Superior Court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the Supreme Court or to the Appellate Court, in the same manner and to the same effect as if made by the accused.”

       We note that the language of our holding in State v. Marquis, 235 Conn. 659, 663, 668 A.2d 710 (1995), may be read to indicate that we agree with the state’s position that the trial court had ordered the defense examination of R as a quid pro quo for the videotaped testimony. Although neither parly has called our attention to this language, in answering the certified question and reacquainting ourselves with the record, we conclude that our prior holding was incomplete. We were correct that the record was sufficient for review, and that the trial court’s denial of the state’s motion for videotaped testimony was a result of the state’s refusal, in defiance of a court order, to allow Solnit to interview R. What we left unclear, however, as we explain in the text of this opinion, was that, in the context of the trial court’s dialogue with the state and the defendant, the examination was not a quid pro quo to the granting of the state’s motion, but, rather, was ordered by the court so that it would have the information it needed to make an informed decision regarding the state’s request.

       As a preliminary matter, the state argues that this court should dismiss the defendant’s appeal on the ground that certification was improvidently granted. Specifically, the state claims that the defendant, in his petition for certification, misrepresented the holding of the Appellate Court by stating that the Appellate Court had decided that the trial court lacked discretion to order an examination of the child by a defense expert. The state contends that it is clear from the Appellate Court’s decision that that court determined that the trial court had such discretion but failed to exercise it.
      A close reading of the Appellate Court’s opinion reveals that its actual conclusions were: (1) the defendant was not automatically entitled to an examination of the child by a defense expert as a quid pro quo to the trial court’s granting of the state’s motion for videotaped testimony; and (2) the trial court failed to exercise properly its discretionary authority under State v. Jarzbek, supra, 204 Conn. 683, when it denied the state’s motion without making the proper evidentiary findings.
      The Appellate Court did not rule as to whether the trial court had the discretion to allow the defendant’s expert to examine the child, but indicated, in dicta, that the trial court had no such discretion, when it stated: “[U]nder the previous system . . . the trial court was entitled, although not mandated, to order a psychiatric examination of the child if it deemed such an examination necessary. . . . [General Statutes §] 54-86h effected a substantial change in the procedure for establishing whether child victims are to be considered competent to testify. That procedure does not provide for a psychiatric examination by a defense expert prior to the granting of a motion to videotape the child’s testimony pursuant to § 54-86g. ... By enacting §§ 54-86g and 54-86h as part of the same public act [see Public Acts 1985, No. 85-587, §§ 1 and 2] and in light of the case law existing at the time of enactment, the legislature clearly intended to create an updated and consistent body of law regulating the testimony of child victims of assault, sexual assault or abuse.” (Citations omitted; emphasis added.) State v. Marquis, supra, 42 Conn. App. 197. This passage fairly can be read to support the question as presented by the defendant, i.e., whether the Appellate Court was incorrect regarding the trial court’s discretionary authority, and, accordingly, we conclude that the question as certified properly incorporates the issues raised by the Appellate Court in its decision.

       Although the trial court in Jarzbek was not acting pursuant to § 54-86g, which did not become effective until after the initiation of that action, “the videotaping [approved by the trial court was] essentially the same procedure . . . prescribed by § 54-86g.” State v. Jarzbek, supra, 204 Conn. 686. Those cases that were initiated after the enactment of the statute, however, have continued to rely on the Jarzbek analysis; cf. State v. Bonello, 210 Conn. 51, 554 A.2d 277, cert. denied, 490 U.S. 1082, 109 S. Ct. 3268, 106 L. Ed. 2d 612 (1989); and, therefore, insofar as it applies to the issue raised by the present appeal, we need not analyze the statute separately.

       General Statutes § 54-86h provides: “No witness shall be automatically adjudged incompetent to testify because of age and any child who is a victim of assault, sexual assault or abuse shall be competent to testify without prior qualification. The weight to be given the evidence and the credibility of the witness shall be for the determination of the trier of fact.”

       At oral argument before this court, the state was asked repeatedly whether it could point to any case, civil or criminal, in which this court, or any other court, of this jurisdiction, had allowed a party to adduce expert testimony as to a material issue but, as a matter of law, denied the opposing party the opportunity to adduce the same kind of expert testimony. The state was unable to offer any such precedent, and our own research has revealed none.


text:
    STATE OF CONNECTICUT v. SUSAN TANGARI

      F. Mac Buckley, in support of the petition.

      Marjorie Allen Dauster, assistant state’s attorney, in opposition.
    Decided May 1, 1997
   The defendant’s petition for certification for appeal from the Appellate Court, 44 Conn. App. 187 (AC 14967), is denied.


text:
    CADLE COMPANY OF CONNECTICUT, INC. v. C.F.D. DEVELOPMENT CORPORATION ET AL.
    The Supreme Court docket number is SC 15678.

      Steven M. Basche, in support of the petition.

      Bruce L. Elstein, in opposition.
    Decided May 1, 1997
   The plaintiffs petition for certification for appeal from the Appellate Court, 44 Conn. App. 409 (AC 15676), is granted, limited to the following issue:

“Under the circumstances of this case, did the Appellate Court properly conclude that the guarantors on the note held by the plaintiff were not liable on their guarantee?”


author: BERDON, J.,

text:
    STATE OF CONNECTICUT v. ORION JONES
   The defendant’s petition for certification for appeal from the Appellate Court, 44 Conn. App. 476 (AC 15591), is denied.

BERDON, J.,

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

Neal Cone, assistant public defender, in support of the petition.

Susann E. Gill, assistant state’s attorney, in opposition.

Decided May 1, 1997


text:
    FLEET CREDIT CORPORATION v. DONALD F. MILLER, COMMISSIONER OF REVENUE SERVICES PRODUCTO MACHINE COMPANY ET AL. v. DONALD F. MILLER, COMMISSIONER OF REVENUE SERVICES
    The Supreme Court docket number is SC 15679.

      Richard K. Greenberg, assistant attorney general, in support of the petition.

      Donald E. Frechette and Jeremy A. Mellitz, in opposition.
    Decided May 1, 1997
   The defendant’s petition for certification for appeal from the Appellate Court, 44 Conn. App. 529 (AC 15515/ 15516/15517), is granted, limited to the following issue:

“Did the Appellate Court improperly determine that the plaintiff taxpayers were not liable for the payment of interest pursuant to General Statutes (Rev. to 1993) § 12-242d for the underpayment of their estimated corporate business tax?”


text:
    RICHARD D. LAUER ET AL. v. ZONING COMMISSION OF THE TOWN OF REDDING ET AL.
   The named plaintiffs petition for certification for appeal from the Appellate Court, 44 Conn. App. 542 (AC 15205/15226), is granted, limited to the following issue:

The Supreme Court docket number is SC 15680.

Nancy Burton, in support of the petition.

Michael N. Lavelle and Helen L. McGonigle, in opposition.

Decided May 1, 1997

“Did the Appellate Court properly conclude that the trial court’s judgment was untimely under General Statutes § 51-183b, and that the untimeliness was not waived?”


author: BORDEN, BERDON and MCDONALD, Js.,

text:
    RAYMOND L. FUNAIOLI v. CHARLES FLYNN ET AL.

      Philip Zuckerman, in support of the petition.

      Matthew E. Frechette, in opposition.
    Decided May 1, 1997
   The plaintiffs petition for certification for appeal from the Appellate Court, 44 Conn. App. 919 (AC 15453), is denied.

BORDEN, BERDON and MCDONALD, Js.,

did not participate in the consideration or decision of this petition.


text:
    STATE OF CONNECTICUT v. MARK D. BOUIER

      Alice M. Sexton, in support of the petition.

      Lawrence J. Tytla, senior assistant state’s attorney, in opposition.
    Decided May 8, 1997
   The defendant’s petition for certification for appeal from the Appellate Court, 44 Conn. App. 548 (AC 15917), is denied.


author: MCDONALD, J.,

text:
    EMC MORTGAGE CORPORATION v. DANIEL R. SNYDER ET AL.

      Edwin L. Doemberger, in support of the petition.

      Michele D. Sensale, in opposition.
    Decided May 8, 1997
   The named defendant’s petition for certification for appeal from the Appellate Court (AC 16845) is denied.

MCDONALD, J.,

did not participate in the consideration or decision of this petition.


text:
    HOUSEHOLD BANK F.S.B. v. ROBERT L. MARTIN ET AL.

      Juanita Martin, pro se, in support of the petition.
    Decided May 8, 1997
   The defendant Juanita Martin’s petition for certification for appeal from the Appellate Court (AC 16032) is denied.


text:
    WILLIAM TAFF v. JAYMA BETTCHER
    The Supreme Court docket number is SC 15683.

      James D. Hirschfield, in support of the petition.

      Steven H. Levy, in opposition.
    Decided May 8, 1997
   The defendant’s petition for certification for appeal from the Appellate Court (AC 16533) is granted, limited to the following issue:

“Did the Appellate Court properly dismiss this appeal for lack of a final judgment?”


text:
    IN RE MICHAEL C.

      Grace A. Cavero, assistant public defender, in support of the petition.

      Bruce A. Tonkonow, juvenile prosecutor, in opposition.
    Decided May 8, 1997
   The defendant’s petition for certification for appeal from the Appellate Court, 44 Conn. App. 923 (AC 14685), is denied.


text:
    STATE OF CONNECTICUT v. JAMES E. HOLLEY

      Elizabeth Inkster, assistant public defender, in support of the petition.

      Mitchell S. Brody, assistant state’s attorney, in opposition.
    Decided May 8, 1997
   The defendant’s petition for certification for appeal from the Appellate Court, 44 Conn. App. 928 (AC 15363), is denied.


author: BERDON, J., NORCOTT, J.,

text:
    MANHATTAN REALTY ASSOCIATES v. PAUL KOZLOWSKI ET AL.

      Max F. Brunswick, in support of the petition.
    Decided May 29, 1997
   The defendants’ petition for certification for appeal from the Appellate Court (AC 16292) is denied.

BERDON, J.,

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

NORCOTT, J.,

did not participate in the consideration or decision of this petition.


author: BORDEN, J.,

text:
    DEBORAH MALASKY v. METAL PRODUCTS CORPORATION ET AL.

      Robert L. Hirtle and Brendan T. Flynn, in support of the petition.
    Decided May 29, 1997
   Defendant Sidney Greenberg’s petition for certification for appeal from the Appellate Court, 44 Conn. App. 446 (AC 15361), is denied.

BORDEN, J.,

did not participate in the consideration or decision of this petition.


text:
    CLAIROL, INC. v. ENERTRAC CORPORATION

      Ernest J. Mattel, Philip S. Wellman and David C. Robinson, in support of the petition.

      Lawrence J. Golden, in opposition.
    Decided May 29, 1997
   The plaintiffs petition for certification for appeal from the Appellate Court, 44 Conn. App. 506 (AC 15402), is denied.


text:
    NEW MILFORD SAVINGS BANK v. MAURICE J. JAJER ET AL.
    The Supreme Court docket number is SC 15695.
   The plaintiffs petition for certification for appeal from the Appellate Court, 44 Conn. App. 588 (AC 14888), is granted, limited to the following issue:

“Did the Appellate Court properly conclude that the trial court lacked jurisdiction to open the judgment of foreclosure based on General Statutes §§ 49-15 and 49-1?”

Kenneth J. Bartschi and Wesley W. Horton, in support of the petition.

Seth Jacoby, in opposition.

Decided May 29, 1997


author: BERDON, J., MCDONALD, J.,

text:
    SARA LIPWICH v. EMIL H. FRANKEL, COMMISSIONER OF TRANSPORTATION

      Steven R. Rolnick, in support of the petition.

      Andrew S. Turret, in opposition.
    Decided May 29, 1997
   The plaintiffs petition for certification for appeal from the Appellate Court, 44 Conn. App. 651 (AC 15452), is denied.

BERDON, J.,

dissenting. I would grant the plaintiffs petition for certification to appeal.

MCDONALD, J.,

did not participate in the consideration or decision of this petition.


author: NORCOTT, J.,

text:
    JODI BILODEAU v. AETNA CASUALTY AND SURETY COMPANY

       The appeal was withdrawn December 10, 1997.

   The plaintiffs petition for certification for appeal from the Appellate Court, 44 Conn. App. 698 (AC 15796), is granted, limited to the following issue:

“Did the Appellate Court properly hold that the two year limitations period for underinsured motorist claims applied to claims made after May 20,1993, rather than the six year contract limitations period?”

NORCOTT, J.,

did not participate in the consideration or decision of this petition.

The Supreme Court docket number is SC 15697.

Steven J. DeFrank and David A. Leff, in support of the petition.

Decided May 29, 1997


text:
    STATE OF CONNECTICUT v. KIM P. SCHIAPPA
    The Supreme Court docket number is SC 15696.

      Frederick W. Fawcett, assistant state’s attorney, in support of the petition.

      Elizabeth M. Inkster, assistant public defender, in opposition.
    Decided May 29, 1997
   The petition by the state of Connecticut for certification for appeal from the Appellate Court, 44 Conn. App. 731 (AC 14450), is granted, limited to the following issues:

“1. Did the Appellate Court properly conclude that the requirement of the unavailability of the declarant was not met with respect to witness Stephen Staffy’s statement?

“2. With respect to the statement of witness Gary Meier: (a) did the Appellate Court properly conclude that the defendant’s claim was of constitutional magnitude under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and (b) if the answer to (a) is yes, did the Appellate Court properly conclude that the trial court’s instructions regarding adoptive admissions by a defendant were improper?”


text:
    STATE OF CONNECTICUT v. ANDREW J. LEDUC

      Michael R. Hasse, in support of the petition.

      JohnP. Gravalec-Pannone, assistant state’s attorney, in opposition.
    Decided May 29, 1997
   The defendant’s petition for certification for appeal from the Appellate Court, 44 Conn. App. 744 (AC 16044), is denied.


text:
    JANET M. CONNOR, ADMINISTRATRIX (ESTATE OF RAYMOND T. CONNOR) v. LISA-LOTTE KNUDSEN ET AL.

      Lisa-Lotte Knudsen, pro se, in support of the petition.
    Decided May 29, 1997
   The named defendant’s petition for certification for appeal from the Appellate Court, 44 Conn. App. 912 (AC 15856), is denied.

MCDONALD, J.,

did not participate in the consideration or decision of this petition.


text:
    RICHARD GOENNE v. AETNA LIFE AND CASUALTY COMPANY
   The plaintiffs petition for certification for appeal from the Appellate Court, 44 Conn. App. 922 (AC 15233), is denied.

BERDON, J.,

dissenting. I would grant the plaintiffs petition for certification to appeal.

Henry D. Marcus, in support of the petition.

Lois B. Tanzer, in opposition.

Decided May 29, 1997


text:
    VINCENT MARONE v. CITY OF WATERBURY

      George C. Springer, Jr., in support of the petition.

      Mary C. Pokorski, assistant corporation counsel, in opposition.
    Decided May 29, 1997
   The plaintiffs petition for certification for appeal from the Appellate Court, 44 Conn. App. 922 (AC 16159), is denied.


author: CALLAHAN, C. J.,

text:
    STATE OF CONNECTICUT v. GERALD HORNE

      Neal Cone, assistant public defender, in support of the petition.

      LeonF. Dalbec, Jr., assistant state’s attorney, in opposition.
    Decided May 29, 1997
   The defendant’s petition for certification for appeal from the Appellate Court, 44 Conn. App. 923 (AC 14642), is denied.

CALLAHAN, C. J.,

did not participate in the consideration or decision of this petition.


text:
    JOHN NAJDA v. SALVATORE M. LOCICERO, SR., ET AL.
   The plaintiffs petition for certification for appeal from the Appellate Court, 44 Conn. App. 923 (AC 15687), is denied.

Ian A. Cole, in support of the petition.

Richard E. Castiglioni, in opposition.

Decided May 29, 1997


text:
    HENRY M. BALAVENDER ET AL. v. LEONARD C. PARE

      Steven W. Varney and Robert T. Rimmer, in support of the petition.

      Edward T. Lynch, Jr., in opposition.
    Decided May 29, 1997
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 44 Conn. App. 924 (AC 15647), is denied.

NORCOTT, J.,

did not participate in the consideration or decision of this petition.


text:
    CRAIG MUNZER ET AL. v. SMS ASSOCIATES ET AL.

      Karen L. Murdoch and Wesley W. Horton, in support of the petition.

      Jeffrey N. Low, in opposition.
    Decided May 29, 1997
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 44 Conn. App. 926 (AC 15652), is denied.


text:
    DOUGLASS B. WRIGHT v. TOWN OF OLD SAYBROOK
   The plaintiffs petition for certification for appeal from the Appellate Court, 44 Conn. App. 926 (AC 15978), is denied.

William L. Ankerman, in support of the petition.

Decided May 29, 1997

MCDONALD, J.,

did not participate in the consideration or decision of this petition.


text:
    MICHAEL HAMPDEN v. COMMISSIONER OF CORRECTION

      Raymond J. Rigat, in support of the petition.
    Decided May 29, 1997
   The plaintiffs petition for certification for appeal from the Appellate Court, 44 Conn. App. 927 (AC 15545), is denied.


author: BERDON and MCDONALD, Js.,

text:
    CAPITOL REGION CONFERENCE OF CHURCHES ET AL. v. DEPARTMENT OF INSURANCE ET AL.

      R. Bartley Halloran and Harry K. Snyder, in support of the petition.

      Mark F. Kohler, assistant attorney general, Allan B. Taylor, Mark R. Kravitz and Robert M. Langer, in opposition.
    Decided June 5, 1997
   The plaintiffs’ petition for certification for appeal from the Appellate Court (AC 16534) is denied.

BERDON and MCDONALD, Js.,

dissenting. We would grant the plaintiffs’ petition for certification to appeal.


text:
    FEDERAL NATIONAL MORTGAGE ASSOCIATION v. JOHN LORD WENTWORTH, JR., ET AL.

      George M. Purtill and Seth Jacoby, in support of the petition.

      Patrick Crook, in opposition.
    Decided June 5, 1997
   The petition by the defendants, John L. Wentworth, Jr., and Teresa T. Wentworth, for certification for appeal from the Appellate Court (AC 16774) is denied.


text:
    COMMERCIAL CREDIT CORPORATION v. BEVERLY R. FORGIONE

      F. Woodward Lewis, Jr., in support of the petition.

      Julie A. Manning, in opposition.
    Decided June 5, 1997
   The defendant’s petition for certification for appeal from the Appellate Court (AC 16777) is denied.


text:
    MARION D. LORD v. FRANKLIN L. LORD, JR.

      Franklin L. Lord, Jr., pro se, in support of the petition.
    Decided June 5, 1997
   The defendant’s petition for certification for appeal from the Appellate Court, 44 Conn. App. 370 (AC 14478), is denied.


text:
    O. PAUL SHEW v. FREEDOM OF INFORMATION COMMISSION ET AL.
    The Supreme Court docket number is SC 15707.

      Mitchell W. Pearlman, general counsel, and Victor Perpetua, appellate attorney, in support of the petition.

      Felix J. Springer, in opposition.
    Decided June 5, 1997
   The named defendant’s petition for certification for appeal from the Appellate Court, 44 Conn. App. 611 (AC 15279), is granted, limited to the following issues:

“1. Did the Appellate Court properly conclude that the communications by town employees to Attorney Stuhlman were covered by the attorney-client privilege, subject to the factual determinations required by Upjohn v. United States, 449 U.S. 383, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981)?

“2. Did the Appellate Court properly conclude that the documents in question were preliminary drafts or notes within the meaning of General Statutes § 1-19 (b) (1)?”


text:
    SOUTHEASTERN CONNECTICUT REGIONAL RESOURCES RECOVERY AUTHORITY ET AL. v. AMERICAN REF-FUEL COMPANY OF SOUTHEASTERN CONNECTICUT AMERICAN REF-FUEL COMPANY OF SOUTHEASTERN CONNECTICUT v. CONNECTICUT RESOURCES RECOVERY AUTHORITY ET AL.
   The petition by the Southeastern Connecticut Regional Resources Recovery Authority and the Connecticut Resources Recovery Authority for certification for appeal from the Appellate Court, 44 Conn. App. 728 (AC 15911/16270), is denied.

Roger E. Koontz, William, B. Heinrich, and Robert E. Wright, in support of the petition.

Charles D. Ray, William H. Narwold and William H. Bright, Jr., in opposition.

Decided June 5, 1997


author: CALLAHAN, C. J., and MCDONALD, J.,

text:
    ELAINE SCHRATWIESER ET AL. v. HARTFORD CASUALTY INSURANCE COMPANY

      Philip F. von Kuhn, in support of the petition.

      Seth J. Amowitz, in opposition.
    Decided June 5, 1997
   The defendant’s petition for certification for appeal from the Appellate Court, 44 Conn. App. 754 (AC 15887), is denied.

CALLAHAN, C. J., and MCDONALD, J.,

did not participate in the consideration or decision of this petition.


text:
    HOPE’S ARCHITECTURAL PRODUCTS, INC. v. FOX STEEL COMPANY

      Richard F. Wareing, in support of the petition.
    Decided June 5, 1997
   The defendant’s petition for certification for appeal from the Appellate Court, 44 Conn. App. 759 (AC 15504), is denied.


text:
    CITY OF NEW HAVEN v. LOCAL 884, COUNCIL 4, AFSCME, AFL-CIO
   The defendant’s petition for certification for appeal from the Appellate Court, 44 Conn. App. 764 (AC 13525), is denied.

J. William Gagne, Jr., and Jason W. Cohen, in support of the petition.

Steven L. Samalot, assistant corporation counsel, in opposition.

Decided June 5, 1997

BERDON, J.,

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

NORCOTT, J.,

did not participate in the consideration or decision of this petition.


text:
    GEORGE W. SICARAS v. CITY OF HARTFORD ET AL.

      William A. Snyder, in support of the petition.

      Karen K. Clark, in opposition.
    Decided June 5, 1997
   The plaintiffs petition for certification for appeal from the Appellate Court, 44 Conn. App. 771 (AC 15439), is denied.

CALLAHAN, C. J., and NORCOTT, KATZ and PALMER, Js.,

did not participate in the consideration or decision of this petition.


text:
    DONNA M. MCCARTHY v. VINCENT P. MCCARTHY
   The defendant’s petition for certification for appeal from the Appellate Court, 44 Conn. App. 930 (AC 15209), is denied.

BERDON, J.,

dissenting. I would grant certification to appeal on the following important issue in this case in which the Appellate Court summarily affirmed the judgment of the trial court: “Whether the trial court correctly held that as a matter of law it was restricted to granting sole custody because the parties did not agree on joint custody and because one party sought joint custody (husband) and the other party sought sole custody (wife) and there was no motion for conciliation?”

William F. Gallagher, in support of the petition.

Christine A. Janis, in opposition.

Decided June 5, 1997


text:
    STATE OF CONNECTICUT v. ERNEST WILLIAMSON

      Annacarina Del Mastro, deputy assistant public defender, in support of the petition.

      Ronald G. Weller, assistant state’s attorney, in opposition.
    Decided June 5, 1997
   The defendant’s petition for certification for appeal from the Appellate Court, 44 Conn. App. 931 (AC 15877), is denied.

BERDON, J.,

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


text:
    IKE’S AUTO BODY, INC. v. COMMISSIONER OF MOTOR VEHICLES

      Ann H. McCarthy, in support of the petition.
   The plaintiffs petition for certification for appeal from the Appellate Court, 45 Conn. App. 903 (AC 15971), is denied.

MCDONALD, J.,

did not participate in the consideration or decision of this petition.

Paul K. Pemerewski, assistant attorney general, in opposition.

Decided June 5, 1997


text:
    SUMMITWOOD ASSOCIATES PHASE IV v. PLANNING COMMISSION OF THE CITY OF MERIDEN ET AL.

    The Supreme Court docket number is SC 15710.

      Stephen J. Anderson and Kenneth R. Slater, Jr., in support of the petition.

      Robert A. Fuller, in opposition.
    Decided June 11, 1997

       The appeal was withdrawn June 15, 1998.

   The petition by Victor Scaringe and Anita Scaringe for certification for appeal from the Appellate Court (AC 16899) is granted, limited to the following issue:

“Did the Appellate Court properly hold that the petitioners did not possess a colorable claim to intervene as a party in this action?”


author: BORDEN, PALMER and MCDONALD, Js.,

text:
    JOHN ROTA, SR. v. COLONIAL REALTY/USA (CONSTITUTION)

      Hope C. Seeley, in support of the petition.

      Richard A. Bieder, Lillian C. Gustilo and Joel T. Faxon, in opposition.
    Decided June 11, 1997
   The petition by the defendant Deloitte & Touche, LLP, for certification for appeal from the Appellate Court (AC 16319) is denied.

BORDEN, PALMER and MCDONALD, Js.,

did not participate in the consideration or decision of this petition.


text:
    C. J. MOZZOCHI v. FREEDOM OF INFORMATION COMMISSION ET AL. TOWN OF GLASTONBURY v. C. J. MOZZOCHI

      John R. Williams, in support of the petition.

      William B. Rogers and Victor Perpetua, in opposition.
    Decided June 11, 1997
   The petition by the plaintiff in the first case and the defendant in the second case for certification for appeal from the Appellate Court, 44 Conn. App. 463 (AC 15193), is denied.

BERDON and MCDONALD, Js.,

dissenting. We would grant the petition for certification to appeal.


text:
    STATE OF CONNECTICUT v. DAVID GORMAN

      Michael A. Rubino, Jr., in support of the petition.

      Margaret Gaffney Radionovas, assistant state’s attorney, in opposition.
    Decided June 11, 1997
   The defendant’s petition for certification for appeal from the Appellate Court, 44 Conn. App. 929 (AC 15574), is denied.

BERDON, J.,

did not participate in the consideration or decision of this petition.


text:
    AMY JEANNE CONWAY v. TOWN OF WILTON ET AL.
   The petition by the defendant Connecticut Association of Secondary Schools for certification for appeal from the Appellate Court, 45 Conn. App. 17 (AC 13524), is denied.

Hugh W. Cuthbertson, in support of the petition.

Decided June 11, 1997

MCDONALD, J.,

did not participate in the consideration or decision of this petition.


text:
    ALAN RAPH ET AL. v. ALAN R. VOGELER, JR.

      M. Kate Curran, in support of the petition.

      Thomas W. Beecher, in opposition.
    Decided June 11, 1997
   The defendant’s petition for certification for appeal from the Appellate Court, 45 Conn. App. 56 (AC 14262), is denied.

CALLAHAN, C. J.,

did not participate in the consideration or decision of this petition.


text:
    MAXINE RICHARDSON NISCHAN v. CONNECTICUT NATURAL FOOD MART, INC.

      Maxine Richardson Nischan, pro se, in support of the petition.

      James F. Spallone and Michael P. Kamp, in opposition.
    Decided June 11, 1997
   The plaintiffs petition for certification for appeal from the Appellate Court, 45 Conn. App. 903 (AC 16072), is denied.


author: KATZ, J.,

text:
    STATE OF CONNECTICUT v. JAMES DEMIRJIAN

      Eugene J. Riccio and Susan F. Filan, in support of the petition.

      Susan C. Marks, supervisoiy assistant state’s attorney, in opposition.
    Decided June 25, 1997
   The defendant’s petition for certification for appeal from the Appellate Court (AC 16755) is denied.

KATZ, J.,

did not participate in the consideration or decision of this petition.


text:
    PITTSTON COMPANY v. IRVING S. GOLDBLUM ET AL.

      William H. Narwold, John D. Freeman and Charles D. Ray, in support of the petition.

      Samuel J. Bernstein, in opposition.
    Decided June 25, 1997
   The plaintiffs petition for certification for appeal from the Appellate Court is denied.


text:
    STATE OF CONNECTICUT v. BRYANT K. ROLLINS
   The petition by the state of Connecticut for certification for appeal from the Appellate Court, 44 Conn. App. 162 (AC 14300), is granted, limited to the following issue:

“Under the circumstances of this case, did the Appellate Court properly conclude that the defendant’s confession should have been suppressed by the trial court because (1) it was made after the defendant had requested counsel and (2) the subsequent communication that led to the confession was not initiated by the defendant as required by Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), and its progeny?”

The Supreme Court docket number is SC 15718.

Margaret Gaffney Radionovas, assistant state’s attorney, in support of the petition.

James B. Streeto, in opposition.

Decided June 25, 1997


text:
    ROLAND GARDNER v. MICHAEL PILATO ET AL.

      Melvin J. Silverman, in support of the petition.

      Katherine Blakeslee, in opposition.
    Decided June 25, 1997
   The defendants’ petition for certification for appeal from the Appellate Court, 44 Conn. App. 724 (AC 15408), is denied.

CALLAHAN, C. J.,

did not participate in the consideration or decision of this petition.


text:
    STATE OF CONNECTICUT v. MICHAEL DALY

      Kirstin B. Coffin, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 44 Conn. App. 912 (AC 15014), is denied.

KATZ, J.,

did not participate in the consideration or decision of this petition.

Michele C. Lukban, deputy assistant state’s attorney, in opposition.

Decided June 25, 1997


text:
    LOUIS VITALE v. VINCENT YIK

      Louis Vitale, pro se, in support of the petition.

      Vincent Yik, pro se, in opposition.
    Decided June 25, 1997
   The plaintiffs petition for certification for appeal from the Appellate Court, 44 Conn. App. 927 (AC 16120), is denied.

BERDON, J.,

did not participate in the consideration or decision of this petition.


text:
    EILEEN COPPOLA v. PAUL J. COPPOLA
    The Supreme Court docket number is SC 15715.

      Pat Labbadia III, in support of the petition.
    Decided June 25, 1997
   The plaintiffs petition for certification for appeal from the Appellate Court, 44 Conn. App. 930 (AC 15559), is granted, limited to the following issue:

“Did the Appellate Court properly affirm the trial court’s judgment of dismissal?”


text:
    STATE OF CONNECTICUT v. SCOTT GRAHAM
   The defendant’s petition for certification for appeal from the Appellate Court, 45 Conn. App. 12 (AC 15121), is denied.

Abram Heisler, in support of the petition.

James M. Ralls, assistant state’s attorney, in opposition.

Decided June 25, 1997

CALLAHAN, C. J.,

did not participate in the consideration or decision of this petition.


text:
    GARY ROGERS v. NORTHEAST UTILITIES

      William F. Gallagher, in support of the petition.

      Richard W. Bowerman, in opposition.
    Decided June 25, 1997
   The plaintiffs petition for certification for appeal from the Appellate Court, 45 Conn. App. 23 (AC 15508), is denied.


text:
    STATE OF CONNECTICUT v. EBONY CASEY

      Daniel S. Blinn, special public defender, in support of the petition.

      Paul J. Ferencek, assistant state’s attorney, in opposition.
    Decided June 25, 1997
   The defendant’s petition for certification for appeal from the Appellate Court, 45 Conn. App. 32 (AC 15847), is denied.

BERDON, J.,

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


text:
    STATE OF CONNECTICUT v. JULIUS MARSHALL
    The Supreme Court docket number is SC 15717.

      Pamela S. Nagy, special assistant public defender, in support of the petition.

      Robert J. Scheinblum, deputy assistanat state’s attorney, in opposition.
    Decided June 25, 1997
   The defendant’s petition for certification for appeal from the Appellate Court, 45 Conn. App. 66 (AC 14408), is granted, 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?”


text:
    RAVINDER SINGH v. DEPARTMENT OF PUBLIC HEALTH AND ADDICTION SERVICES

      Michael A. Georgetti, in support of the petition.
    Decided June 25, 1997
   The plaintiffs petition for certification for appeal from the Appellate Court, 45 Conn. App. 83 (AC 15598), is denied.