text:
    James Raines v. Freedom of Information Commission et al.
    (14342)
    Peters, C. J., Callahan, Glass, Covello and Borden, Js.

      Argued January 7
    decision released March 24, 1992

      George V. Lawler, for the appellant (plaintiff).

      Victor R. Perpetua, commission counsel, with whom were Susan A. Quinn and, on the brief, Mitchell W. Pearlman, general counsel, Catherine Wassel-Nasto,
      commission counsel, and Ralph G. Elliot, for the appellees (named defendant et al.).

      Joseph Musco, for the appellees (defendant New Britain police department et al.).
   Glass, J.

This is an appeal from the judgment of the trial court dismissing the plaintiff’s appeal of two final decisions of the named defendant, the freedom of information commission (FOIC). The trial court concluded that the appeal had been untimely served and, therefore, that it lacked subject matter jurisdiction over the appeal. We affirm the judgment of the trial court.

The facts essential to the disposition of this appeal are undisputed. In October and November, 1988, the Hartford Courant and the New Britain Herald filed complaints with the FOIC appealing the New Britain police department’s denial of requests to disclose the records of an internal affairs investigation of the plaintiff, former New Britain police officer James Raines. The FOIC consolidated the complaints and, on December 8,1988, held a hearing. At the hearing, the plaintiff was made a party to both contested cases. The FOIC determined that the records were subject to disclosure and mailed notice of its final decision to the parties.

The plaintiff timely appealed the decision of the FOIC to the Superior Court. In ruling on the defendant Hartford Courant’s motion in limine, the trial court, Freed, J., remanded the matter to the FOIC for an in camera inspection of the records in accordance with Board of Education v. Freedom of Information Commission, 210 Conn. 590, 556 A.2d 592 (1989), and for consideration of additional evidence. Pursuant to the remand order, a hearing was held by the FOIC on June 28,1990. The hearing officer who presided at this hearing incorporated some of the findings made by the hearing officer who had presided at the December 8, 1988 hearing. The FOIC issued a final decision ordering the New Britain police department to provide the complainants access to the records with certain portions redacted and, on September 19, 1990, mailed notice of its decision to all parties.

The plaintiff appealed that decision to the Superior Court, and served a copy of the appeal on the FOIC on November 2, 1990, forty-four days after the FOIC had mailed its decision. The FOIC moved to dismiss the appeal, claiming that it had not been timely served and, therefore, that the trial court lacked subject matter jurisdiction. The trial court, Stengel, J., granted the FOIC’s motion to dismiss. The plaintiff appealed to the Appellate Court and we transferred the case to this court pursuant to Practice Book § 4023.

The sole issue in this appeal is whether General Statutes § 4-183 (c), as revised by No. 88-317 of the 1988 Public Acts, is applicable to the plaintiff’s appeal. The plaintiff argues that the FOIC proceeding from which he appealed commenced with the hearing that was held on June 28, 1990, and, therefore, is governed by the service of process provisions of § 4-183 as revised, which applies to proceedings commenced on or after July 1,1989. General Statutes § 4-185. The FOIC contends that our decisions in Citizens Against Pollution Northwest, Inc. v. Connecticut Siting Council, 217 Conn. 143, 584 A.2d 1183 (1991), and Vernon Village, Inc. v. Carothers, 217 Conn. 130, 585 A.2d 76 (1991), compel the conclusion that the agency proceedings commenced with the filing of the complaints in 1988, prior to the effective date of the revision. We agree with the FOIC.

Number 88-317 of the 1988 Public Acts (act) was a comprehensive piece of legislation that substantially revised the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq. Prior to the 1988 revisions to the UAPA, a person aggrieved by a final agency decision was required to file an appeal within forty-five days and serve copies of the appeal upon the agency and all parties of record within thirty days of the mailing of the notice of the decision. Section 4-183 (c), as revised by the act, changed the time period to forty-five days for both the filing of an administrative appeal and the service of the appeal upon all parties of record. In Vernon Village, Inc. v. Car others, supra, 138, this court concluded that under § 4-185, the application and effective date of the revisions “is tied to the date that the underlying agency proceedings commenced, and in cases where such proceedings had commenced before July 1,1989, the effective date of the act, the act is inapplicable.”

The plaintiff argues that the initial agency proceedings in this case terminated when he appealed from the first agency decision and, therefore, a new proceeding commenced with the hearing held on June 28, 1990, pursuant to the trial court’s remand. Because this “proceeding” commenced after July 1,1989, the effective date of the UAPA revisions, the plaintiff claims that his service of the appeal upon the FOIC within forty-five days of the mailing of the decision was timely. We disagree.

The agency proceedings in this case were initiated in October and November, 1988, when complaints were filed with the FOIC seeking disclosure of the records of the New Britain police department’s internal affairs investigation of the plaintiff. After the plaintiff’s appeal from the initial agency decision, the trial court remanded the case to the FOIC for an in camera inspection of the records pursuant to this court’s decision in Board of Education v. Freedom of Information Commission, supra, and for consideration of additional evidence. In considering whether a trial court’s remand order is an appealable final judgment, we have stated that “[a] judgment by a trial court ordering further administrative proceedings” does not terminate “a separate and distinct proceeding.” (Internal quotation marks omitted.) Schieffelin & Co. v. Department of Liquor Control, 202 Conn. 405, 409-10, 521 A.2d 566 (1987) (remand by trial court ordering agency to undertake evidentiary inquiry into matter not addressed in previous agency decision was not appealable final judgment); see also Eastern Connecticut Cable Television, Inc. v. Department of Public Utility Control, 214 Conn. 609, 614, 573 A.2d 311 (1990) (“there is no final judgment if the administrative record is incomplete because a remand requires further evidentiary determinations that are not merely ministerial”).

In the present case, the remand was ordered in a ruling on a motion in limine and, thus, the trial court made no determination of the merits of the appeal. The trial court ordered the FOIC to review evidence that had been submitted at the December 8,1988 hearing as well as to consider any new evidence that the parties might submit. The hearing upon remand, although conducted by a different hearing officer, incorporated findings from the December 8,1988 hearing. Moreover, no new complaints were filed and no new docket numbers were assigned by the FOIC. Finally, in the decision from which this appeal was taken, the FOIC referred to the matter that was heard on December 8, 1988, as having been “reopened,” and based its findings and conclusions on its “consideration of the entire record.” (Emphasis added.) We discern no persuasive reason on these facts “why we should view each fragmented sub-proceeding within [the] agency proceeding as triggering the application of the act. Indeed, the act itself suggests that hearings are merely component proceedings within a larger, more inclusive agency proceeding commencing before the hearing stage.” Vernon Village, Inc. v. Carothers, supra, 141. We conclude, therefore, that the June 28, 1990 hearing, held pursuant to the trial court’s remand order, was a continuation of the original agency proceeding and not, as the plaintiff claims, a separate and distinct proceeding to which § 4-183 (c) as revised would apply.

“Appeals to courts from administrative agencies exist only under statutory authority. Charles Holdings, Ltd. v. Planning & Zoning Board of Appeals, 208 Conn. 476, 479, 544 A.2d 633 (1988); Tazza v. Planning & Zoning Commission, 164 Conn. 187, 190, 319 A.2d 393 (1972). ‘ “A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created.” ’ Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, 201 Conn. 350, 356, 514 A.2d 749 (1986); Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 6, 363 A.2d 1386 (1975). Such provisions are mandatory, and, if not complied with, the appeal is subject to dismissal. Basilicato v. Department of Public Utility Control, 197 Conn. 320, 322, 497 A.2d 48 (1985); Royce v. Freedom of Information Commission, 177 Conn. 584, 587, 418 A.2d 939 (1979).” Vernon Village, Inc. v. Carothers, supra, 142. It is undisputed that the plaintiff failed to serve a copy of his appeal on the FOIC within thirty days of the mailing of the decision, as required by § 4-183 (b) prior to its revision by the act. Accordingly, we conclude that the trial court properly dismissed the appeal for lack of subject matter jurisdiction.

The judgment is affirmed.

In this opinion the other justices concurred.

       The Hartford Courant, through one of its reporters, Elizabeth Willen, filed a complaint with the FOIC on October 24,1988. The New Britain Herald, through its executive editor, Henry Keezing, filed a similar complaint with the FOIC on November 2, 1988.

       In Board, of Education v. Freedom of Information Commission, 210 Conn. 590, 596-97, 556 A.2d 592 (1989), this court rejected the FOIC’s blanket ruling that disclosure of job evaluations of school employees would not be protected as invasive of privacy under General Statutes § 1-19 (b) (2). This court remanded the case to the trial court with direction to order the FOIC to conduct an in camera inspection of the requested records and to consider any additional evidence submitted by the parties in order to determine whether the need for disclosure outweighed the public policy in favor of the confidentiality of private and personal information. See State v. Januszewski, 182 Conn. 142, 172, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). In Chairman v. Freedom of Information Commission, 217 Conn. 193, 200-201, 585 A.2d 96 (1991), in concluding that disclosure of a state’s attorney’s personnel evaluation constituted an invasion of privacy as a matter of law, this court overruled the holding in Board of Education v. Freedom of Information Commission, supra, to the extent that it suggested that the Januszewski balancing test was applicable to situations covered by specific statutory provisions of the Freedom of Information Act.

       General Statutes § 4-183 provides in pertinent part: “appeal to superior court. . . .
      “(c) Within forty-five days after mailing of the final decision under section 4-180 or, if there is no mailing, within forty-five days after personal delivery of the final decision under said section, a person appealing as provided in this section shall serve a copy of the appeal on the agency that rendered the final decision at its office or at the office of the attorney general in Hartford and file the appeal with the clerk of the superior court for the judicial district of Hartford-New Britain or for the judicial district wherein the person appealing resides or, if that person is not a resident of this state, with the clerk of the court for the judicial district of Hartford-New Britain. Within that time, the person appealing shall also serve a copy of the appeal on each party listed in the final decision at the address shown in the decision, provided failure to make such service within forty-five days on parties other than the agency that rendered the final decision shall not deprive the court of jurisdiction over the appeal. Service of the appeal shall be made by (1) United States mail, certified or registered, postage prepaid, return receipt requested, without the use of a sheriff or other officer, or (2) personal service by a proper officer or indifferent person making service in the same manner as complaints are served in ordinary civil actions.”

       Two other defendants, The Hartford Courant and Elizabeth Willen, joined in the arguments presented by the FOIC in its brief on appeal.

       Prior to the 1988 revisions to the UAPA, the time periods for appealing an agency decision to the Superior Court were set forth in General Statutes (Rev. to 1987) § 4-183 (b). That section provides: “Proceedings for such appeal shall be instituted by filing a petition in superior court for the judicial district of Hartford-New Britain or for the judicial district wherein the aggrieved person resides or if such person is not a resident of this state to the court for the judicial district of Hartford-New Britain within forty-five days after mailing of the notice of the final decision of the agency or, if a rehearing is requested, within forty-five days after mailing of the notice of the decision thereon. Copies of the petition shall be served upon the agency and all parties of record within thirty days after mailing of such notice or, if a rehearing is requested, within thirty days after mailing of the notice of the decision thereon, except that service upon an agency may be made by the appellant mailing a copy of the petition by registered or certified mail, postage prepaid, without the use of a sheriff or other officer, to the office of the commissioner of the agency or to the office of the attorney general in Hartford.”

       General Statutes § 4-185 provides in relevant part: “(a) This chapter applies to all agency proceedings commenced on or after July 1,1989. Each agency proceeding commenced before July 1,1989, is governed by the law in effect when the proceeding was commenced.”

       We do not decide whether a trial court’s remand that ordered an administrative agency to conduct a hearing ab initio would commence new “proceedings” within the meaning of General Statutes § 4-185. But see Harrison v. Commissioner, 204 Conn. 672, 673 n.1, 529 A.2d 188 (1987) (trial court’s remand order to defendant commissioner of department of income maintenance for “new full hearing” on plaintiff’s application for Medicaid was appealable final judgment).


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    Westport Bank and Trust Company v. Corcoran, Mallin and Aresco et al.
    (14307)
    Shea, Glass, Covello, Borden and Berdon, Js.

      Argued October 30, 1991
    decision released March 31, 1992

      Richard J. Diviney, for the appellant (plaintiff).

      Arnold J. Bai, with whom were Andrew S. Turret and, on the brief, J. Jeffrey Coughlin, for the appellees (named defendant et al.).
   Borden, J.

The issue in this appeal is whether a lender may hold its attorney liable for a negligent title search and subsequent issuance of an erroneous title opinion letter to the lender when that attorney also represents the borrower. The plaintiff, Westport Bank and Trust Company, brought suit against attorney John R. Mallín and the law firm of Corcoran, Mallin and Aresco (defendants), alleging, in count one, breach of its attorney-client contract with the defendants and, in count three, legal malpractice by the defendants. The trial court, Licari, J., granted the defendants’ motion to strike the first and third counts of the plaintiff’s amended complaint. The plaintiff appealed from the subsequent judgment, Spear, J., to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023. We now reverse.

The complaint alleged the following facts. In January, 1988, the plaintiff approved the loan application of Charles L. Munigle, individually and doing business as MKP Westport (Munigle). The plaintiff issued a commitment letter to Munigle for a $225,000 construction loan subject to Munigle’s granting a second mortgage to the plaintiff on two adjoining parcels of land that he owned, known as lots 5 and 6 on Cross Highway in Westport. In February, 1988, after accepting the plaintiff’s loan commitment, Munigle retained the defendants to provide certain legal services in connection with the loan, including searching the title of lots 5 and 6, preparing loan closing documents, and issuing to the plaintiff a title opinion and securing a title insurance policy for the plaintiff.

The complaint further alleged that the plaintiff sent an “Order For Title Search” directly to the defendants requesting them to search the title to the property and to issue a title opinion letter to the plaintiff. The defendants then conducted a title search on the lots, prepared loan closing documents, conducted the loan closing and issued a title opinion letter directly to the plaintiff, representing that the lots were unencumbered except for a preexisting first mortgage, and that the plaintiff’s mortgage would be a valid second mortgage on the lots. In reliance on that letter, the plaintiff granted the $225,000 loan to Munigle and accepted a mortgage on the lots from Munigle.

The complaint also alleged that, in May, 1989, Munigle sold lot 5, and that the plaintiff discovered that its mortgage on lots 5 and 6 was actually a third mortgage that was subordinate to a second mortgage held by United Bank and Trust Company (UBTC). The plaintiff had not been advised of UBTC’s second mortgage in the title opinion letter. The sale proceeds from lot 5 fully satisfied the first mortgage and partially satisfied UBTC’s second mortgage. No portion of the sale proceeds, however, was available to satisfy any part of Munigle’s $225,000 debt to the plaintiff. In January, 1990, the first mortgagee foreclosed its mortgage on lot 6 and the lot was sold at a public auction. Due to the plaintiff’s unintended third mortgagee position, the sale proceeds were insufficient to reduce the remaining debt owed by Munigle to the plaintiff.

The plaintiff’s initial complaint alleged that the defendants were negligent in their title search and that the plaintiff was harmed by that negligence. The trial court granted the defendants’ motion to strike the plaintiff’s complaint, noting that “jn]o reading of the complaint, even in the broadest permissible sense, establishes directly or by inference an attorney-client relationship between the plaintiff and moving defendants. Nor does the complaint, read in the same fashion, contain the essential allegation that the defendants intended to assume a direct obligation to the plaintiff as required by Stowe v. Smith, 184 Conn. 194, 196 [441 A.2d 81] (1981). These facial inadequacies alone warrant the striking of this complaint.”

Thereafter, the plaintiff filed an amended complaint. In count one of the amended complaint, the plaintiff alleged that the defendants had breached their attorney-client contract with the plaintiff. In count three, the plaintiff alleged that, in performing their contract with the plaintiff to provide legal services, the defendants had been negligent in that they had assumed a duty to the plaintiff to exercise reasonable care when conducting the title search, and that the defendants had breached this duty by failing to discover UBTC’s existing second mortgage on lots 5 and 6, by failing to advise the plaintiff of such a mortgage in the title opinion letter, and by failing to perfect the second mortgage lien for the plaintiff.

The trial court granted the defendants’ motion to strike the first and third counts of the plaintiff’s amended complaint, noting that “[wjhile the amended complaint has addressed the facial inadequacies previously noted by this court . . . this court still concludes that as a matter of law, in light of public policy, the amended complaint also fails to state a recognizable cause of action in either challenged count.” The reference to “public policy” involved the discussion by the trial court in its memorandum of decision on the defendants’ first motion to strike. See footnote 4, supra. The court had noted in its previous decision that “ ‘courts have refrained from imposing liability [on an attorney] when such liability has the potential of interfering with the ethical obligations owed by an attorney to his or her client.’ ” The court had also concluded previously that in this case there was “serious potential for conflicts of interest if an attorney is required to serve two masters,” namely, the borrower and the lender. The court had further noted that “[t]his court does not know of an area more filled with potential conflicts of interest than the area of lender and borrower relationships. Our dockets are filled with instances where such relationships have broken down. Collection actions and foreclosures crowd our dockets.”

The plaintiff claims that the trial court improperly granted the defendants’ motion because, in this particular case, the public policy concerns for protection of an attorney’s undivided loyalty to his client do not exist. The defendants claim that the trial court properly granted their motion because liability should not arise in this case due to the potential conflicts of interest when an attorney represents two clients. We agree with the plaintiff.

“A motion to strike challenges the legal sufficiency of a pleading.” Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). In reviewing the granting of a motion to strike, we take the facts alleged in the plaintiff’s complaint and construe the complaint in the manner most favorable to the plaintiff. Mozzochi v. Beck, 204 Conn. 490, 491, 529 A.2d 171 (1987). “ ‘This includes the facts necessarily implied and fairly provable under the allegations. ... It does not include, however, the legal conclusions or opinions stated in the complaint. . . .’ ” Coste v. Riverside Motors, Inc., 24 Conn. App. 109, 111, 585 A.2d 1263 (1991); see Amodio v. Cunningham, 182 Conn. 80, 83, 438 A.2d 6 (1980). If facts provable in the complaint would support a cause of action, the motion to strike must be denied. Stradmore Development Corporation v. Commissioners, 164 Conn. 548, 550-51, 324 A.2d 919 (1973).

Rule 1.7 of the Rules of Professional Conduct sets forth the general rule on conflicts of interest in an attorney-client relationship. Rule 1.7 (a) states in pertinent part that a “lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless . . . [t]he lawyer reasonably believes the representation will not adversely affect the relationship with the other client . . . and . . . [e]ach client consents after consultation.” (Emphasis added.) In the present case, the complaint alleges that the defendants were ordered by Munigle, pursuant to their attorney-client agreement with Munigle, to conduct a title search and issue a title opinion letter directly to the plaintiff. Thus, the allegations of the complaint, construed in favor of the plaintiff, would permit proof that Munigle consented to the defendants' representation of him even though the defendants also represented the plaintiff.

Furthermore, the complaint would permit proof that the defendants could have reasonably believed, when they were initially retained by Munigle, that their representation of the plaintiff would not adversely affect their relationship with Munigle. In Connecticut, banks often rely on the skill and judgment of a single loan closing attorney to conduct a title search and issue a title opinion. See, e.g., T. Witherspoon, E. Sostman & P. Culver, Basic Real Estate Law in Connecticut (1988) p. 44. Many loan transactions occur every day, without incident, in which a single attorney searches the title and issues a title opinion. Indeed, when an attorney conducts a title search on behalf of a lender and a borrower, both the lender and borrower have similar interests in obtaining an accurate title opinion letter. The lender seeks an accurate opinion letter so that its loan may be adequately secured. The borrower also seeks an accurate opinion letter so that it may procure the loan from the lender and learn of any encumbrances that would affect title to the property. The two parties seek the same result, namely, that no encumbrance on the property will interfere with the granting of the loan. This supports the view that an attorney could reasonably view his relationship with the lender and borrower as nonadversarial. Moreover, the Connecticut Bar Association has “sanctioned the practice of a single attorney representing multiple parties, including a mortgage lender and borrower, in a real estate transaction where there is no actual conflict of interest and where there has been full disclosure and consent of the parties with respect to representation by the single attorney. Informal Opinion 1-74 (1974); see CBA Formal Opinion No. 30 (1978) for a discussion of the issues involved.” Connecticut Bar Association Committee on Professional Ethics, Informal Opinion 83-25 (1983).

The defendants argue, as the trial court reasoned, that there is a potential for a conflict of interest. “A possible conflict^ however,] does not itself preclude the representation. The critical questions are the likelihood that a conflict will eventuate and, if it does, whether it will materially interfere with the lawyer’s independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client. Consideration should be given to whether the client wishes to accommodate the other interest involved.” Rules of Professional Conduct, Rule 1.7, comment. As we stated earlier, in the initial stages of a loan transaction, the lender and borrower have similar interests in securing an accurate title opinion letter. If an unforeseen conflict arises after representation has been undertaken, an attorney should withdraw from the representation of the client. Id.; see also Rules of Professional Conduct, Rule 1.16. That does not mean, however, as the defendants’ argument suggests, that the potential for such a conflict must preclude an attorney from representing a borrower and lender simultaneously.

The judgment is reversed and the case is remanded with direction to deny the motion to strike and for further proceedings according to law.

In this opinion the other justices concurred.

       The plaintiff also, in count two, set forth a claim against American Title Insurance Company, which is not involved in this appeal.

       In count one, the plaintiff also alleged that it was the third party beneficiary of the attorney-client contract between the borrower and the defendants. Since we conclude that the plaintiff has stated a cause of action by its claim of a direct attorney-client contract with the defendants and since the trial court did not directly address this claim in its second decision, we need not consider this allegation.

       The plaintiff did receive from its title insurance carrier a partial payment upon the sale of lot 5.

       The court proceeded, nonetheless, to discuss certain policy reasons, discussed infra, that in its view required that the motion to strike be granted.

       The parties have briefed and orally argued this appeal as if the plaintiff had not alleged an attorney-client relationship in its amended complaint. Instead, the plaintiff, in its brief and in oral argument, put forth arguments for holding an attorney liable to a nonclient. While the plaintiff may have framed the issue in such a fashion, the trial court, recognizing that the amended complaint cured the facial inadequacies in the first complaint, interpreted the amended complaint as alleging an attorney-client relationship. Indeed, the first count of the amended complaint alleged that “[a]s a result of the foregoing breach of Attorney Mallin’s and CM&A’s contractual duties to [the] Plaintiff, directly . . . the Plaintiff has sustained monetary damages,” and the third count of the amended complaint alleged that “[t]he defendants breached their duty of care to the plaintiff by their negligent and careless” conduct regarding the UBTC mortgage. These allegations, as amplified in further detail in the complaint, clearly alleged, in count one, a breach of a direct attorney-client contract and, in count three, the tort of legal malpractice by an attorney with respect to his client. We therefore decide the merits of the case on the basis of the actual language of the pleadings and the trial court’s understanding of those pleadings.

       Rule 1.7 of the Rules of Professional Conduct, entitled “Conflict of Interest: General Rule,” provides as follows: “(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
      “(1) The lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
      “(2) Each client consents after consultation.
      “(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless:
      “(1) The lawyer reasonably believes the representation will not be adversely affected; and
      “(2) The client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.”


author: Santaniello, J.

text:
    Theodore Jackson v. John Bailey, State’s Attorney
    (14253)
    Peters, C. J., Glass, Covello, Borden and Santaniello, Js.

      Argued January 14
    decision released March 31, 1992

      Martin Zeldis, assistant public defender, for the plaintiff in error.

      Harry Weller, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and James Thomas, senior assistant state’s attorney, for the defendant in error.
   Santaniello, J.

The plaintiff in error, Theodore Jackson (plaintiff), brought a writ of error to this court seeking reversal of a judgment of the Superior Court, summarily finding that he had committed three separate contempts of court and sentencing him to fifteen months imprisonment. The plaintiff argues that the trial court erred when it summarily sentenced him to fifteen months in prison without: (1) affording him a jury trial; (2) giving him notice or allowing him a full opportunity to respond to the charges against him; and (3) having such contempt charges heard and decided by a different judge.

“ ‘The present case, which involves a review of a summary criminal contempt proceeding, comes before us on a writ of error which is the sole method of review of such proceedings. Whiteside v. State, 148 Conn. 77, 78-79,167 A.2d 450 (1961); Goodhart v. State, 84 Conn. 60, 63, 78 A. 853 (1911). The scope of our review reaches only those matters appearing as of record. State v. Assuntino, 180 Conn. 345, 347, 429 A.2d 900 (1980); Reilly v. State, 119 Conn. 217, 223, 175 A. 582 (1934). In a review of summary criminal contempt, the inquiry is limited to a determination of the jurisdiction of the court below. Tyler v. Hammersley, 44 Conn. 393, 413 (1877). Subsumed in this inquiry are three questions, namely, (1) whether the designated conduct is legally susceptible of constituting a contempt; Goodhart v. State, supra; (2) whether the punishment imposed was authorized by law; State v. Jackson, 147 Conn. 167, 169, 158 A.2d 166 (1960); and (3) whether the judicial authority was qualified to conduct the hearing. Mayberry v. Pennsylvania, 400 U.S. 455, 465-66, 91 S. Ct. 499, 27 L. Ed. 2d 532 (1971)' Moore v. State, 186 Conn. 256, 257, 440 A.2d 969 (1982).” In re Dodson, 214 Conn. 344, 346-47, 572 A.2d 328, cert. denied, U.S. 111 S. Ct. 247, 112 L. Ed. 2d 205 (1990).

The record discloses, inter alia, the following: On August 27,1990, the plaintiff was arrested and charged with three serious crimes for which bond was set at $300,000. On December 26, 1990, bond was reduced to $85,000. On February 25, 1991, the plaintiff filed a motion for a further bond reduction. On March 6,1991, the plaintiff appeared in court to be heard on this motion.

After listening to argument by counsel, the trial court denied the motion. As the plaintiff was exiting the courtroom, an apparent disturbance prompted the trial court to order that the plaintiff be returned to the courtroom. After the plaintiff was returned to the courtroom, the plaintiff explained that his reaction was due to the fact that he was being held in Bridgeport, which was far from his friends and family in Hartford, and his concern over pretrial delay. An angry exchange followed in which the plaintiff uttered various obscenities to the trial court, and the court, in response, summarily found that the plaintiff had committed three separate contempts, for which the trial court sentenced the plaintiff to a total of fifteen months imprisonment.

On March 7,1991, the plaintiff filed a motion to correct illegal findings of contempt. This motion was argued before the trial court on March 14,1991. Before ruling on the plaintiffs motion, the trial court articulated the reasons for its three findings of contempt, describing the effect that the plaintiffs conduct could have on the dignity of the courtroom, had such contempt findings not been made.* * The trial court then denied the motion. Subsequently, the plaintiff filed this writ of error challenging the trial court’s findings of contempt.

I

The first issue raised in the writ is whether the trial court was authorized, under its summary contempt powers, to impose an aggregate sentence of greater than six months. The plaintiff argues that the punishment imposed exceeded the trial court’s authority.

An understanding of the trial court’s contempt power is necessary in order to evaluate this claim properly. Pursuant to General Statutes § 51-33, “[a]ny court . . . may punish by fine and imprisonment any person who in its presence behaves contemptuously or in a disorderly manner; but no court . . . may impose a greater fíne than one hundred dollars or a longer term of imprisonment than six months or both.” (Emphasis added.) Thus, “[s]o long as the punishment is kept within the six-month term provided by § 51-33, the court’s jurisdiction to impose such punishment summarily is clear.” Moore v. State, supra, 259. In Moore, we noted the apparent overlap between § 51-33 and General Statutes § 51-33a. In harmonizing the two statutes so that both may be operative, we stated that “[t]he ‘overlap’ of the two statutes in respect to con-tempts occurring in the presence of the court allows the court to proceed to resolve such matters summarily during trial in accordance with § 51-33 ... or, in an appropriate situation, to defer the adjudication to a later time so that proceedings under § 51-33a may be instituted in accordance with § 990 of the Practice Book.” Id., 261; see also Naunchek v. Naunchek, 191 Conn. 110, 115, 463 A.2d 603 (1983).

Section 988 of the Practice Book provides for summary contempt when the contemptuous conduct occurs in the trial court’s presence and when summary response to it is necessary to maintain order in the courtroom. Section 989 of the Practice Book deals with the circumstances under which institution of the contempt proceedings should be deferred until conclusion of the trial and then conducted pursuant to Section 990,* ****6 the nonsummary contempt provisions.

The applicable statutes and Practice Book provisions clearly show that “ ‘[a] court exercises considerable discretion in dealing with contemptuous conduct occurring in its presence, and its summary adjudication is accorded a presumption of finality.’ State v. Melechinsky, [36 Conn. Sup. 547, 549, 419 A.2d 900 (1980)]. ‘From necessity the court must be its own judge of contempts committed within its presence.’ Goodhart v. State, supra [62-63].” McClain v. Robinson, 189 Conn. 663, 669, 457 A.2d 1072 (1983). In In re Dodson, supra, 353, we stated that “[w]here the judge decides to impose sanctions for misconduct, ‘ordinarily [the judge should] impose the least severe sanction appropriate to correct the abuse and to deter repetition . . . .’ American Bar Association Standards for Criminal Justice (2d Ed. Sup. 1982), Special Functions of the Trial Judge, Standard 6-3.3 . . . .” We also stated that “[s]ummary criminal contempt should not be employed as a means of abuse but courts have the right in appropriate circumstances to employ it to vindicate their dignity and authority upon any interference and to go no further.” Id., 376. We conclude that, given the nature of the statements made by the plaintiff to the court, the court had the authority summarily to hold the plaintiff in contempt of court.

We now address whether, consistent with the summary contempt power, the court was authorized to impose a punishment in excess of six months without a jury trial. The plaintiff claims that he was entitled to a jury trial because his aggregated sentence exceeded six months. We agree with the contrary decision of the trial court.

In Bloom v. Illinois, 391 U.S. 194, 88 S. Ct. 1477, 20 L. Ed. 2d 522 (1968), the United States Supreme Court held that serious contempts are subject to the jury trial provisions of the constitution. The court further stated that “when the legislature has not expressed a judgment as to the seriousness of an offense by fixing a maximum penalty which may be imposed, we are to look to the penalty actually imposed as the best evidence of the seriousness of the offense.” Id., 211. Since Bloom, “our decisions have established a fixed dividing line between petty and serious offenses: those crimes carrying a sentence of more than six months are serious crimes and those carrying a sentence of six months or less are petty crimes.” Codispoti v. Pennsylvania, 418 U.S. 506, 512, 94 S. Ct. 2687, 41 L. Ed. 2d 912 (1974).

The plaintiff relies primarily on Codispoti v. Pennsylvania, supra, and Taylor v. Hayes, 418 U.S. 488, 94 S. Ct. 2697, 41 L. Ed. 2d 897 (1974), in support of his argument that the right to a jury trial attaches absolutely when the penalty imposed is imprisonment for an aggregate period of more than six months. In Codispoti, the two petitioners, Codispoti and Langnes, were tried for various acts of contempt that occurred at a prior trial before a different judge. Codispoti’s demand for a jury trial was denied. At the conclusion of the trial, the court found that Codispoti had committed seven contemptuous acts and that Langnes had committed six contemptuous acts as charged. Both were given consecutive sentences far in excess of six months. The Pennsylvania Supreme Court affirmed the decision, and the United States Supreme Court granted certiorari limited to the issue of whether the petitioners should have been afforded a jury trial.

In reversing the judgment of the Pennsylvania Supreme Court and holding that each petitioner was entitled to a jury trial, the United States Supreme Court distinguished between the situation where contemptuous conduct is cited and punished instantly, and the situation where the court postpones until after trial punishment for contempts committed during trial. This distinction is based upon the need, or lack thereof, to take immediate action to preserve order in the courtroom. Codispoti v. Pennsylvania, supra, 514-15.

“There are recurring situations where the trial judge, to maintain order in the courtroom and the integrity of the trial process in the face of an ‘actual obstruction of justice,’ In re McConnell, 370 U.S. 230, 236, 82 S. Ct. 1288, 8 L. Ed. 2d 434 (1962) . . . convicts and sentences the accused or the attorneys for either side for various acts of contempt as they occur. Undoubtedly, where the necessity of circumstances warrants, a contemnor may be summarily tried for an act of contempt during trial and punished by a term of no more than six months. Nor does the judge exhaust his power to convict and punish summarily whenever the punishment imposed for separate contemptuous acts during trial equals or exceeds six months. ” (Emphasis added.) Codispoti v. Pennsylvania, supra, 513-14, citing United States v. Seale, 461 F.2d 345, 355 (7th Cir. 1972).

In this context, the Codispoti court noted the necessity of “ ‘maintaining] order and a deliberative atmosphere in the courtroom. The power of a judge to quell disturbance cannot attend upon the impaneling of a jury.’ ” Codispoti v. Pennsylvania, supra, 514, quoting Bloom v. Illinois, supra, 210. “ ‘[A] criminal trial, in the constitutional sense, cannot take place where the courtroom is a bedlam .... A courtroom is a hallowed place where trials must proceed with dignity . . . .’ Illinois v. Allen, 397 U. S. 337, 351, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970) (separate opinion of Douglas, J.) . . . .” Codispoti v. Pennsylvania, supra. The court concluded its discussion of summary adjudication by stating: “That the total punishment meted out during trial exceeds six months in jail or prison would not invalidate any of the convictions or sentences, for each contempt has been dealt with as a discrete and separate matter at a different point during the trial.” Id., 515.

The Codispoti court then explained why that situation should be treated differently from a case where punishment is imposed after trial. “When the trial judge . . . postpones until after trial the final conviction and punishment of the accused or his lawyer for several or many acts of contempt committed during the trial, there is no overriding necessity for instant action to preserve order and no justification for dispensing with the ordinary rudiments of due process.” Id. The court continued by noting that “[i]n the context of the post-verdict adjudication of various acts of contempt, it appears to us that there is posed the very likelihood of arbitrary action that the requirement of jury trial was intended to avoid or alleviate.” (Emphasis added.) Id.

The respondent in Codispoti had argued that the petitioners’ contempts were separate offenses and that, since no more than a six month sentence was imposed for any single offense, each contempt was a petty offense triable without a jury. The court rejected that argument, noting that “the salient fact remains that the contempts arose from a single trial, were charged by a single judge, and were tried in a single proceeding. The individual sentences imposed were then aggregated, one sentence taking account of the others and not beginning until the immediately preceding sentence had expired.” Id., 517. It is important to emphasize, however, that the above discussion of aggregation arose only in the context of postverdict contempt proceedings. This is made all the more apparent by the court’s comment: “Neither are we impressed with the contention that today’s decision will provoke trial judges to punish summarily during trial rather than awaiting a calmer, more studied proceeding after trial and deliberating ‘in the cool reflection of subsequent events.’ Yates v. United States, 355 U.S. 66, 76 [78 S. Ct. 128, 2 L. Ed. 2d 95] (1957) (footnote omitted). Summary convictions during trial that are unwarranted by the facts will not be invulnerable to appellate review.” Codispoti v. Pennsylvania, supra, 506. We do not read Codispoti to prohibit aggregation beyond six months when the sentences are imposed summarily after each separate and distinct contemptuous incident.

The plaintiff, in this case, relies for the contrary contention on Taylor v. Hayes, supra, in which the petitioner, an attorney representing the accused in a murder trial, was informed by the respondent trial judge on nine different occasions during the trial that he was in contempt of court. At the conclusion of the trial, the petitioner was given a consecutive sentence that in the aggregate totaled approximately four and one-half years imprisonment, including sentences of one year imprisonment on each of two counts. Subsequently, the respondent judge entered a corrected judgment that, inter alia, reduced the sentence on each of the last two counts to six months in jail, but was silent as to whether the sentences were to run consecutively or concurrently. The Court of Appeals affirmed the judgment, ruling that since the amended judgment did not direct that the sentences be served consecutively, they had to be served concurrently, thereby making the penalty actually imposed six months in jail and rendering constitutionally permissible the conviction and sentence without a jury trial. The United States Supreme Court agreed, stating that the contempts, “whether considered singly or collectively, thus constituted petty offenses, and trial by jury was not required.” Id., 496.

Taylor does not address the issue that is presently before the court. The court in Taylor did not have to decide the aggregation issue due to the amended judgment which was understood to impose no more than a six month sentence. Moreover, even if the aggregation issue had been reached, it would not have been in the context of an immediate summary adjudication, as the sentencing on the contempt charges occurred at the conclusion of the trial, not immediately upon each finding of contempt.

We conclude that neither Codispoti nor Taylor prohibits the fifteen month sentence imposed by the trial judge in the present case. Those cases are distinguishable from the case currently before the court in that they involved postverdict contempt proceedings. “[A] contemnor must be provided the option of a jury trial on contempt charges when those charges are heard after the conclusion of the trial from which the charges arose, if the defendant may be subject to consecutive sentences cumulating in excess of six months upon conviction on those charges.” United States v. Pina, 844 F.2d 1, 11 (1st Cir. 1988), citing Codispoti v. Pennsylvania, supra, 515-18.

In the present case, by contrast, punishment for each of three separate contemptuous incidents was imposed immediately upon the occurrence of the contemptuous behavior. “[T]he cumulative punishment for contempt imposed during the course of a trial may exceed six months if the judge acts ‘instantly’ to deal with each contempt ‘as a discrete and separate matter at a different point during the trial.’ ” United States v. Pina, supra, 12, quoting Codispoti v. Pennsylvania, supra, 515. That the present case arose in the context of a motion for bond review rather than during an actual trial does not invalidate the contempt citations, as “[t]he [plaintiff’s] conduct took place while the . . . court was ‘in session’ when the court was actively presiding while engaged in processing the business of the Superior Court.” In re Dodson, supra, 356.

We therefore hold that the trial court was authorized to sentence the plaintiff to an aggregate sentence of greater than six months, without a jury trial, based upon the three separate and distinct incidents of contemptuous conduct committed in the court’s presence. In view of this holding, we must address the plaintiff’s argument that he committed no more than one contempt and, therefore, can be punished only for one contempt.

The entire exchange that resulted in the three findings of contempt took place in approximately a thirty second time frame. The plaintiff maintains that based on the facts of this case, there was at most but one incident of contemptuous behavior, and the sentence imposed should have been the three month sentence initially imposed by the trial court, but in no event more than six months. In support of this argument, the plaintiff again relies on Codispoti and Taylor, as well as United States v. Prewitt, 553 F.2d 1082, 1089, cert. denied, 434 U.S. 840, 98 S. Ct. 135, 54 L. Ed. 2d 104 (1977), for the proposition that this was “an undifferentiated mass of contemptuous behavior” and, therefore, the maximum penalty that could be imposed was six months.

The trial court in the present case made a determination that the contempts committed in the courtroom were “separate and distinct.” In United States v. Seale, supra, 354, the court, in its discussion of posttrial adjudication of contempt, noted the problems inherent in a review of such a determination when it stated: “It is true, of course, that appellate courts could review the trial court’s determination of discreteness .... The difficulty is, however, that the standards of such a review will be amorphous, and the result will be inconsistency of decision. There is hardly anything inevitable about whether disruptive activity occurring during the course of a single trial is viewed as a continuous course of conduct or as a series of isolated instances, and we are at a loss to devise a satisfactory test with which to make that judgment.”

The problems noted above likewise exist when the contempt is cited and punished immediately. It is important to note that the primary reason urged by the plaintiff in support of his claim that only one contempt occurred is the temporal proximity of each incident, in that the entire exchange between the plaintiff and the trial judge lasted a very short period of time. This use of hindsight in an attempt to compress three incidents of contempt into one would have the effect of giving the plaintiff a “free ride” on the second two profanities uttered to the court. We cannot accept such an unreasonable result. We therefore uphold the trial court’s determination that three incidents of contempt occurred and were punished by the court. The authorization for the punishment imposed for these three incidents can be found in § 51-33, as well as in the case law previously cited and discussed. Although endowed with the authority to impose consecutive sentences of contempt for consecutive incidents of misconduct, the trial court should ordinarily temper its recourse to that power with the exercise of judicial restraint. Whenever possible, the trial court should rely on its superior ability to defuse confrontation in lieu of invoking its power to impose sanctions for contempt.

II

The plaintiff next argues that he was not given proper notice and an opportunity to be heard before summary contempt was found and punishment was imposed. According to the plaintiff, his due process rights were violated in that he was only given one opportunity to speak, yet was sentenced for three separate incidents of contempt, thus violating Practice Book § 988.

The United States Supreme Court has “stated time and again that reasonable notice of a charge and an opportunity to be heard in defense before punishment is imposed are ‘basic in our system of jurisprudence.’ ” Groppi v. Leslie, 404 U.S. 496, 502, 92 S. Ct. 582, 30 L. Ed. 2d 632 (1972), quoting In re Oliver, 333 U.S. 257, 273, 68 S. Ct. 499, 92 L. Ed. 2d 682 (1948). “Even where summary punishment for contempt is imposed during trial, ‘the contemnor has normally been given an opportunity to speak in his own behalf in the nature of a right of allocution.’ Groppi v. Leslie, supra, [504]

. . . .” Taylor v. Hayes, supra, 498. However, “[t]he United States Supreme Court [also] ‘has often recognized that the requirements of due process cannot be ascertained through mechanistic application of a formula.’ Groppi v. Leslie, [supra, 500]. The essence of due process is fundamental fairness. United States ex rel. Crist v. Lane, 745 F.2d 476, 482 (7th Cir. 1984), cert. denied, 471 U.S. 1068, 105 S. Ct. 2146, 85 L. Ed. 2d 503 (1985). Due process is an element that, when absent, produces the reaction given to that which is ‘shocking to the universal sense of justice.’ United States v. Russell, 411 U.S. 423, 432, 93 S. Ct. 1637, 36 L. Ed. 2d 366 (1973). Due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. Williams v. Bartlett, 189 Conn. 471, 476, 457 A.2d 290, appeal dismissed, 464 U.S. 801, 104 S. Ct. 46, 78 L. Ed. 2d 67 (1983); Lee v. Board of Education, 181 Conn. 69, 73, 434 A.2d 333 (1980).” In re Dodson, supra, 362-63.

In In re Dodson, the petitioner argued that he had been denied the due process provided for by § 988, in that the contempt against him did not include “ ‘a recital of those facts in which adjudication of guilt is based.’ ” Id., 364. We stated there that “[t]he lack of a ‘mechanistic application’ ... of Practice Book § 988 should not serve to defeat its due process requirements if they were substantively met.” Id., 363. Applying this principle, we held that since the petitioner knew or should have known that he was “ ‘out of order,’ ” and since he “clearly understood the trial judge’s perception of his conduct,” the finding could not be avoided due to a lack of literal compliance with § 988. Id., 364.

Similarly, in the present case, after the first finding of contempt, the plaintiff knew or should have known that subsequent profanities would result in additional contempts. After the first obscenity, the transcript reveals the following:

“The Court: OK. Mr. Jackson—bring him back. For that statement, I’m finding you in contempt of Court, for saying an obscenity in this courtroom. Do you understand that?
“The Defendant: So what? So what?
“The Court: Do you have any reason why I should not find you in contempt? OK.
“The Defendant: Why shouldn’t you?
“The Court: OK. Ninety days for contempt.”

Instead of refraining from such conduct after the finding of contempt, the plaintiff uttered another profanity that was met with another finding of contempt. This pattern was repeated when a third profanity was uttered to the court. Given the circumstances of this case, we hold that the Practice Book was substantially complied with, as the plaintiff had been put on notice that his conduct would result in further findings of contempt. See In re Dodson, supra. Lack of literal compliance with Practice Book § 988 does not invalidate the trial court’s findings of contempt.

Ill

The plaintiff’s third argument is that the contempt proceedings should not have been adjudicated by the same judge against whom the contempt was perpetrated. The defendant argues that the issue of judicial bias was not properly raised below and, therefore, is not reviewable on appeal. In In re Dodson, supra, 368, we reached the merits of a similar claim despite the fact that “nothing on the record . . . suggested] that [the petitioner] or his counsel ever raised the matter of the recusal of the trial judge in the trial court.” We similarly decide to reach the merits of the plaintiff’s claim in the present case.

“Mayberry v. Pennsylvania, [supra, 465-66,] held . . . that the fair administration of justice disqualifies a judge from sitting in judgment on a contempt charge if he has become so personally embroiled with a contemnor that it is unlikely for him ‘to maintain that calm detachment necessary for fair adjudication.’ Id., 465. ... In determining when due process demands recusal, we recognize, however, that neither Mayberry v. Pennsylvania nor Taylor v. Hayes, [supra, 501-503], also requiring referral to a different judge, arose in the context of an immediate summary adjudication of contempt during the course of a trial. A trial court must have latitude in the preservation of courtroom control. Sacher v. United States, [343 U.S. 1, 8, 72 S. Ct. 451, 96 L. Ed. 2d 717, reh. denied, 343 U.S. 931, 72 S. Ct. 746, 96 L. Ed. 1341 (1952)]; Cooke v. United States, 267 U.S. 517, 534, 45 S. Ct. 390, 69 L. Ed. 2d 767 (1925).” Naunchek v. Naunchek, supra, 116-17. In Naunchek, therefore, we held that “a summary contempt conviction during the course of a trial, whose very timing bears witness to the trial court’s judgment that the effective administration of justice requires an immediate judicial response, cannot be overturned without substantial evidence of personal embroilment on the part of the presiding judge.” Id., 117.

Applying these principles to this case, we must examine the record to determine whether the plaintiff’s claim of personal embroilment has been factually substantiated. “Mayberry v. Pennsylvania and Taylor v. Hayes teach us that we must appraise both the conduct of the contemnor and the reaction of the judge. While personal embroilment is a more likely reaction when the contemnor has mounted a personal attack on the judge, it may also be found in the character of the judge’s response, if the judge has become visibly involved in a running controversy with the contemnor.” Naunehek v. Naunchek, supra, 118. “In making this ultimate judgment, the inquiry must be not only whether there was actual bias on [the trial judge’s] part, but also whether there was ‘such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused.’ Ungar v. Sarafite, 376 U.S. 575, 588, 84 S. Ct. 841, 11 L. Ed. 2d 921 (1964).” Taylor v. Hayes, supra, 501; see also In re Dodson, supra, 371.

On the record before us, it does not appear that the plaintiff’s conduct was a “personal attack” on the trial judge, nor that the trial judge ever became embroiled in a “running controversy” with the plaintiff. On the contrary, it shows a judge taking appropriate measures to maintain order in his courtroom. The record reflects that after the plaintiff exited the courtroom in a loud and boisterous manner, the trial judge ordered him brought back and warned him that his disruptive attitude would only hurt him in the courtroom. The response to this was an obscenity uttered by the plaintiff for which he was found in contempt. After the sentence was imposed for this contempt, the plaintiff hurled another profanity at the court, for which the court made another finding of contempt. After imposing the sentence for the second contempt, the plaintiff uttered his third obscenity to the court, resulting in the final contempt citation.

“The use of [the summary contempt] power cannot be constrained by the [plaintiff] simply through the expediency of directing personal insults at the judge: the judge may exercise the contempt power regardless of whether he or she is the subject of attack [absent evidence of personal embroilment by the judge]. . . . It should be emphasized that ... an unruly [plaintiff] achieves nothing by directing insults at the trial judge. The trial judge at all times retains his power of contempt, including the ability summarily to try and sentence the [plaintiff] for up to six months imprisonment upon each occurrence of contempt. ” (Emphasis added.) United States v. Pina, supra, 15-16.

The record does not establish a statutory or a constitutional basis for a requirement that adjudication of these contempts should have been referred to a different judge.

The judgment is affirmed.

In this opinion the other justices concurred.

       The court later stated that the reason it ordered the plaintiff back into the courtroom was because “[the plaintiff] went through that door, banged the door open, and was going out mumbling and talking in a loud voice. And I had him brought back, because this is a courtroom, it’s not a barroom . . . .”

       The three contempts resulted from the following exchange:
      “The Court: Well—OK. Just remember, you’re in a courtroom, Sir.
      “The Defendant: I wouldn’t give a fuck about your courtroom. I would just like to—
      “The Court: OK. Mr. Jackson—bring him back. For that statement, I’m finding you in contempt of Court, for saying an obscenity in this courtroom. Do you understand that?

        “The Defendant: So what? So what?
      “The Court: Do you have any reason why I should not find you in contempt? OK.
      “The Defendant: Why shouldn’t you?
      “The Court: OK. Ninety days for contempt.
      “The Defendant: Suck my dick for giving me another 90 days.
      “The Court: Six months consecutive for contempt.
      “The Defendant: Fuck your mother with a stick.
      “The Court: Another six months consecutive for contempt. OK. Take him out of here now. Make sure the contempt reads ‘consecutive,’ three con-tempts.
      “The Clerk: The total was a year and three months?
      “The Court: A year and three months.”

       The court stated: “[A] judge in deciding or issuing a contempt citation against someone has to look at the courtroom, and how it appeared the day it happened. It was a Wednesday; it was March 6th; it was Motion Day. There had to be approximately 40 to 50 spectators in the courtroom. For a judge to be sitting as a Judge of the Superior Court in the State of Connecticut to allow a defendant to tell him to go F himself, then to let him go on with a litany of other profanities, and make one finding of contempt, is not conducive to maintaining dignity in the Court, or to have the people respect our Court system. It’s very clear to me there were three separate and distinct contempts by [the plaintiff] towards me. . . .”
      “Now if a judge, on those facts, is not going to act summarily on three separate, distinct contempts, then our Courts will turn into bedlam and chaos, as we’re having in the streets right now, Sir.”

       “[General Statutes] Sec. 51-33a. criminal contempt, (a) Any person who violates the dignity and authority of any court, in its presence or so near thereto as to obstruct the administration of justice, or any officer of any court who misbehaves in the conduct of his official duties shall be guilty of contempt and shall be fined not more than five hundred dollars or imprisoned not more than six months or both.
      “(b) No person charged with violating this section may be tried for the violation before the same judge against whom the alleged contempt was perpetrated.”

       “[Practice Book] Sec. 988. [criminal contempt-summary contempt]-NATURE OF PROCEEDINGS
      “A criminal contempt may be punished summarily if the conduct constituting the contempt was committed in the actual presence of the court or the judicial authority and such punishment is necessary to maintain order in the courtroom. A judgment of guilty of contempt shall include a recital of those facts on which the adjudication of guilt is based. Prior to the adjudication of guilt the judicial authority shall inform the defendant of the accusation against him and inquire as to whether he has any cause to show why he should not be adjudged guilty of contempt by presenting evidence of excusing or mitigating circumstances.”

       “[Practice Book] Sec. 989. [criminal contempt—summary contempt]-DEFERRAL OF PROCEEDINGS
      “Where the interests of orderly courtroom procedure and substantial justice so dictate, or where the conduct constituting the contempt is in the nature of a personal attack against the judicial authority, the judicial authority should defer institution of contempt proceedings until after the trial is completed, and the proceedings should be conducted pursuant to Sec. 990.”

       Practice Book § 990 et seq. deals with nonsummary contempt.
      “[Practice Book] Sec. 991. [criminal contempt—nonsummary contempt]-NATURE OF PROCEEDINGS
      “A criminal contempt not adjudicated under Sec. 987 shall be prosecuted by means of an information. The judicial authority may, either upon his own order or upon the request of the prosecuting authority, issue an arrest warrant for the accused. The case shall proceed as any other criminal prosecution under these rules and the General Statutes.”

       In the first trial, the petitioners were codefendants with Richard May-berry. At the conclusion of the trial, Mayberry was sentenced to one to two years for each of eleven contempts committed during trial, for a total sentence of eleven to twenty-two years. Codispoti was sentenced to one to two years for each of seven separate contempts, totaling seven to fourteen years. Langnes was given like sentences for each of six contempts, totaling six to twelve years. The Pennsylvania Supreme Court affirmed the sentences. The United States Supreme Court granted Mayberry’s petition for certiorari; Mayberry v. Pennsylvania, 397 U.S. 1020, 90 S. Ct. 1266, 25 L. Ed. 2d 530 (1970); and vacated the judgment of the Pennsylvania court; Mayberry v. Pennsylvania, 400 U.S. 455, 466, 91 S. Ct. 499, 27 L. Ed. 2d 532 (1971); directing that on remand a different judge hear the contempt charges. Codispoti v. Pennsylvania, 418 U.S. 506, 507, 94 S. Ct. 2687, 41 L. Ed. 2d 912 (1974).

       See United States v. Prewitt, 553 F.2d 1082, 1088-89, cert. denied, 434 U.S. 840, 98 S. Ct. 135, 54 L. Ed. 2d 104 (1977), where the court noted that “[w]hen a court both cites for contempt and imposes sentence immediately upon the termination of the contemptuous conduct, the defendant is at all times made aware of the consequences of his disruptive behavior. The immediate imposition of a six month contempt sentence, with the threat of another sentence to be imposed consecutively if he continues to disrupt the proceedings, might well deter the defendant from further contempts. By contrast, when citation and sentencing are separated the defendant has no way of measuring the consequences of future contemptuous behavior throughout the trial. He is therefore more likely to continue to disrupt the proceedings, only to be met at the conclusion of trial with a contempt sentence that greatly exceeds six months.” (Emphasis added.) See also D. Dobbs, “Contempt of Court: A Survey,” 56 Cornell L. Rev. 183, 234 (1971) (“Criminal penalties assessed immediately upon a disruptive contempt may . . . have a sound effect in avoiding future disturbances. If such penalties are assessed immediately, the issue concerning aggregation of sentences at the end of trial does not arise.”).

       See footnote 5, supra.


author: Callahan, J. Shea, J., Berdon, J.,

text:
    State of Connecticut v. Robert L. Willis
    (14316)
    Shea, Callahan, Glass, Borden and Berdon, Js.
    Argued December 4, 1991
    decision released April 7, 1992

      Joseph G. Bruekmann, assistant public defender, with whom, on the brief, was Amoldo E. Granados, assistant public defender, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and C. Robert Satti, Jr., assistant state’s attorney, for the appellee (state).
   Callahan, J.

The defendant, Robert L. Willis, was charged in an information with two counts of the crime of possession of cocaine with intent to sell in violation of General Statutes § 21a-278 (b) and one count of the crime of possession of marihuana in violation of General Statutes § 21a-279 (c).

The charges arose out of an incident that occurred on January 9, 1989, at approximately 10:55 p.m. in Stratford. The Stratford police, while investigating a stolen marker plate, discovered ninety-four vials of crack cocaine in an automobile occupied by the defendant and two other young men. Subsequently, the defendant was brought to the Stratford police headquarters; there, another ninety-four vials of crack cocaine and two small baggies containing marihuana were found in a trash receptacle in an interrogation room that had been occupied by the defendant.

A jury acquitted the defendant of the charge contained in the first count of the information, which concerned the cocaine found in the automobile. The defendant, however, was convicted by the jury of the charges in the second and third counts of the information, which related to the ninety-four vials of crack cocaine and the marihuana found in the trash receptacle. The trial court imposed a sentence of thirteen years for the defendant’s conviction of possession of cocaine with intent to sell and a consecutive sentence of one year for his conviction of possession of marihuana, for a total effective sentence of fourteen years imprisonment.

The defendant appealed his convictions to the Appellate Court. The Appellate Court affirmed the judgment of the trial court. State v. Willis, 24 Conn. App. 678, 591 A.2d 445 (1991). We granted certification limited to the following questions: “1. Did the Appellate Court correctly conclude that the trial court properly admitted the state’s evidence regarding the physical effects of crack cocaine? 2. If the answer to the first question is no, did the trial court properly deny the defendant’s motion for a mistrial? 3. If the answer to the first question is no, did the trial court properly deny the defendant’s motion to strike the testimony regarding the physical effects of crack cocaine?” State v. Willis, 220 Conn. 907, 597 A.2d 339 (1991).

These questions arise because, in the course of the defendant’s trial, on direct examination, Charles Reading, the supervising toxicologist at the state toxicology laboratory, when asked by the prosecutor to describe “the physiological effects of cocaine free base, non-salt form upon the human body,” testified: “Cocaine, particularly in the free base form, is readily absorbed across the mucous membranes of the body; that means through the lining of the mouth or the nose or through the mucosa of the lungs. In this form, it travels very rapidly into the blood stream and therefore carried very rapidly to the rest of the body. This is the reason that cocaine when ingested in this manner results in a very intense physiological reaction. One of those reactions is a stimulation of the pleasure centers of the central nervous system. Another reaction, which is particularly a problem, is the irritation of the myocardium, that is the actual tissue of the heart itself which has been recorded in many cases to cause almost instantaneous death.”

Immediately after Reading mentioned “instantaneous death,” the defendant objected to all of Reading’s testimony relating to the physiological effects of crack cocaine. He then asked that the testimony be stricken because it was irrelevant to the crime of possession of cocaine with intent to sell, with which he was charged, and also because its prejudicial effect outweighed its probative value. The state, when asked by the trial court to articulate its claim for the admissibility of Reading’s testimony, replied that “it [was] relevant to the issue of the intent to sell.” The trial court agreed with the state and overruled the defendant’s objection and his request that the testimony be stricken. The defendant took an exception to the trial court’s rulings.

Later, following the luncheon recess, the defendant moved for a mistrial arguing that Reading’s testimony was “so prejudicial and so inflammatory” that it denied him a fair and impartial trial. The trial court denied the defendant’s motion, asserting that it was of the opinion that the testimony concerning the physiological effects of cocaine on an individual had probative value relating to the defendant’s intent to sell. It also ruled that the probative value of the testimony outweighed any prejudice that it might engender. The Appellate Court agreed with the trial court’s ruling and affirmed its judgment. State v. Willis, supra, 24 Conn. App. 683-84.

“ ‘Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case. One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable. Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in the determination of the issue. Evidence is admitted, not because it is shown to be competent, but because it is not shown to be incompetent. No precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to the teachings of reason and judicial experience.’ (Citations omitted.) State v. Schaffer, 168 Conn. 309, 317, 362 A.2d 893 (1975), quoting Federated Department Stores, Inc. v. Board of Tax Review, 162 Conn. 77, 82, 291 A.2d 715 (1971).” State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985); State v. Holliman, 214 Conn. 38, 50, 570 A.2d 680 (1990). “The trial court is given broad discretion in determining the relevancy of evidence and its decision will not be disturbed absent a clear abuse of that discretion.” State v. Holliman, supra, 50; State v. Parker, 197 Conn. 595, 601, 500 A.2d 551 (1985). The trial court also has broad discretion in balancing the probative value of proffered evidence against its prejudicial effect. That discretion is subject to reversal only where an abuse of discretion is manifest or where an injustice appears to have been done. State v. DeJesus, 194 Conn. 376, 382, 481 A.2d 1277 (1984); State v. Tucker, 181 Conn. 406, 416, 435 A.2d 986 (1980).

We conclude that the trial court acted within its broad discretion when it admitted Reading’s testimony wherein he described how free base cocaine rapidly reached the blood stream through the mucous membranes of the body and resulted in “a very intense physiological reaction” and “a stimulation of the pleasure centers of the central nervous system.” That particular testimony of Reading was arguably relevant to prove that the ingestion of free base cocaine results in a quick, pleasurable “high” that might make it a desirable commodity, sought after by that segment of the community that utilizes illicit drugs. Proof of such, in turn, could result in a finding by the jury that the defendant possessed a large quantity of a readily sale-able substance. That finding might aid the jury in drawing a reasonable inference that the cocaine the state alleged the defendant possessed was not for his personal use, but for sale to others. State v. Vilalastra, 207 Conn. 35, 42, 540 A.2d 42 (1988); State v. Avila, 166 Conn. 569, 576-77, 353 A.2d 776 (1974). Because Reading’s testimony in this regard possessed probative value and did not have an unduly prejudicial impact, the trial court did not abuse its discretion by denying the defendant’s motion that it be stricken.

Reading’s testimony, however, wherein he stated, “[ajnother reaction, which is particularly a problem, is the irritation of the myocardium, that is the actual tissue of the heart itself, which has been recorded in many cases to cause almost instantaneous death,” is a different matter altogether. We fail to see how that portion of Reading’s testimony had any probative value relating to the crimes with which the defendant was charged. Because its probative value was nil, and its possible prejudicial effect evident, that portion of Reading’s testimony should have been stricken by the trial court. That does not necessarily mean, however, that the trial court improperly denied the defendant’s motion for a mistrial or that the Appellate Court’s decision affirming the trial court’s judgment need be reversed.

“ ‘The general principle is that a mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial; State v. Peary, 176 Conn. 170, 172-73, 405 A.2d 626 (1978); State v. Ruiz, 171 Conn. 264, 368 A.2d 222 (1976); State v. Brown, 169 Conn. 692, 703, 364 A.2d 186 (1975); State v. Rose, 168 Conn. 623, 635, 362 A.2d 813 (1975)’; State v. Turcio, 178 Conn. 116, 143, 422 A.2d 749 (1979); ‘and the whole proceedings are vitiated.’ State v. Peary, [supra, 173]; see State v. Hafner, 168 Conn. 230, 245-46, 362 A.2d 925 (1975).” State v. Brigandi, 186 Conn. 521, 543, 442 A.2d 927 (1982).

In this instance we determine that, although that portion of Reading’s testimony wherein he mentioned “instantaneous death” was not probative of the defendant’s guilt and had a tendency to prejudice the defendant, any resulting prejudice did not deprive him of an impartial jury and a fair trial. It was not required, therefore, that a mistrial be declared and that the proceedings be vitiated. See id.

During the entire trial the only mention of “instantaneous death” occurred on the single occasion noted. It was not dwelt upon or magnified by the state and the state did not use the term in its final arguments. See State v. Negron, 221 Conn. 315, 330, 603 A.2d 1138 (1992). Also, the effect of Reading’s comment was, to an extent, ameliorated by his subsequent testimony that made reference to the beneficial uses of cocaine as an anesthetic. See Lane v. Commonwealth, 223 Va. 713, 718, 292 S.E.2d 358 (1982).

Moreover, it does not seem possible that it would come as a surprise to any juror in 1990, when the defendant was tried, that illicit drugs have harmful physiological effects and that their use may, on occasion, result in death. Therefore, to have been told that the use of crack cocaine could result in “instantaneous death” could hardly have so shocked and inflamed the jurors that they would jettison their objectivity and impartiality in deciding whether it was the defendant who was in possession of the cocaine in question. That emotion did not rule the jury’s reason is evidenced by the fact that it acquitted the defendant of the first count of possession of cocaine with intent to sell charged in the information.

The defendant does not claim that the trial court’s failure to strike Reading’s testimony was of constitutional significance. “When a trial error in a criminal case does not involve a constitutional violation the burden is on the defendant to demonstrate the harmfulness of the court’s error. . . . The defendant must show that it is more probable than not that the erroneous action of the court affected the result.” (Citations omitted.) State v. Artieri, 206 Conn. 81, 88, 536 A.2d 567 (1988). The defendant was entitled to a fair trial, not a perfect one. Ross v. Oklahoma, 487 U.S. 81, 91, 108 S. Ct. 2273, 101 L. Ed. 2d 80, reh. denied, 487 U.S. 1250, 109 S. Ct. 11, 101 L. Ed. 2d 962 (1988); State v. Kurvin, 186 Conn. 555, 565, 442 A.2d 1327 (1982). We conclude that the result was not affected and that he received a fair trial despite the admission into evidence of a solitary sentence containing prejudicial testimony by the toxicologist.

The judgment of the Appellate Court is affirmed.

In this opinion Glass and Borden, Js., concurred.

Shea, J.,

concurring. Although I agree with the result, I believe that all the testimony concerning the physiological effects of cocaine should have been excluded from evidence, not just the portion concerning the risk of “instantaneous death.” The practical effect of this evidence is to emphasize the seriousness of the crime, i.e., that cocaine causes a “very intense physiological reaction,” in the hope that jurors will be more likely to convict in order to do something about the drug problem. Such evidence does have an emotional impact favorable to the prosecution regardless of its relevance to the issues. Our approval of such testimony as relevant is likely to result in the use of similar testimony in other drug cases, because prosecutors believe it helps them to obtain convictions.

The majority opinion finds the evidence of the physiological effects of cocaine relevant to prove the intention of the defendant to sell the cocaine in his possession because it demonstrates that cocaine creates a pleasurable sensation and thus is a “desirable commodity” sought by drug users. That there is a market for cocaine is so widely known that it would have been a subject for judicial notice, if the prosecutor had sought only to establish that fact. It is inconceivable that any juror in these times would be unaware of the marketability of cocaine, despite the risk of punishment for its use.

If the minimal relevance of this evidence is balanced against its potential for prejudice, the trial court, in my view, could not reasonably have concluded that the former outweighed the latter. Other courts have reached the same conclusion with respect to the relevance of testimony concerning the physiological effects of illegal drugs in prosecutions involving their sale or possession. United States v. Anderson, 584 F.2d 849, 852 (6th Cir. 1978) (“The effects of a drug, no matter how alarming, are wholly irrelevant to the only issue in this case, which is whether [the defendants] participated in a conspiracy to import marijuana.”); United States v. Greene, 548 F.2d 1261, 1270 (6th Cir. 1977) (“Such facts may be highly relevant in assessing the need for controlling the drug, but at trial they did not tend to prove a conspiracy charge. They could only serve to prejudice the jury.”); Smith v. Commonwealth, 223 Va. 721, 724, 292 S.E.2d 362 (1982) (“To permit evidence respecting extreme horrors which may result from the use of illegal substances diverts the jury from its principal inquiry and injects an element of passion into the trial prejudicial to the accused.”).

I agree, nevertheless, with the ultimate conclusion of the majority that the physiological evidence, even with the inclusion of the “instantaneous death” portion, was not so prejudicial as to indicate that the outcome of the trial would probably have been different if this evidence had been excluded.

Berdon, J.,

dissenting. I concur with Justice Shea that it was improper for the trial court to admit into evidence all the testimony regarding the physiological effects of cocaine for the reasons stated in his concurring opinion. Nevertheless, I dissent from the result because I believe that this testimony was prejudicial and, therefore, deprived the defendant of a fair trial.

Although the majority concedes that the trial court improperly admitted into evidence the “possibl[y] prejudicial” expert testimony that cocaine use can cause “instantaneous death,” somehow it concludes that this was harmless. We have long held that “ ‘improper evidence that may have a tendency to excite the passions, awaken the sympathy, or influence the judgment of the jury, cannot be considered as harmless.’ ” State v. Loughlin, 149 Conn. 21, 26, 175 A.2d 367 (1961), quoting St. Martin v. New York, N.H. & H. R. Co., 89 Conn. 405, 411, 94 A. 279 (1915).

In the present case, Charles Reading, supervisor for the state of Connecticut toxicology laboratory, testified that cocaine absorbed through the body’s mucous membranes “results in a very intense physiological reaction. One of those reactions is a stimulation of the pleasure centers of the central nervous system. Another reaction, which is particularly a problem, is the irritation of the myocardium, that is the actual tissue of the heart itself, which has been recorded in many cases to cause almost instantaneous death.” Unlike the situation in Lane v. Commonwealth, 223 Va. 713, 292 S.E.2d 358 (1982), where the Supreme Court of Virginia concluded that the erroneously admitted testimony regarding a drug’s ill effects did not warrant reversal, Reading did not limit his improper remarks to instances of excessive use. Rather, as the defendant aptly notes, Reading’s testimony portrayed any use of cocaine as a form of “Russian roulette,” thereby inflaming the passions of the jury by implanting in their minds the notion that the defendant was peddling death for profit.

In similar circumstances, other jurisdictions have found that evidence of a drug’s physiological effect prejudices the defendant to the extent that fairness requires a new trial. United States v. Anderson, 584 F.2d 849, 852 (6th Cir. 1978); Smith v. Commonwealth, 223 Va. 721, 724-25, 292 S.E.2d 362 (1982).

Furthermore, the majority presumably relies upon the following from State v. Brigandi, 186 Conn. 521, 543, 442 A.2d 927 (1982), with which I have no quarrel: “ ‘The general principle is that a mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated.’” (Citations omitted.) In the present case, however, the majority fails to offer any analysis explaining how it came to the conclusion that, even though the “instantaneous death” testimony had no probative value and had a tendency to prejudice the defendant, he was not deprived of a fair trial.

Moreover, the majority fails to set forth the standard of review it applied. Based on the particular circumstances in Brigandi, this court stated that trial courts have “wide discretion in passing on motions for mistrial.” Id. The abuse of discretion standard, however, would be inappropriate in the present case because the trial court’s denial of the motion for mistrial was predicated on its erroneous ruling that the testimony had probative value and was, therefore, admissible. Had the trial court correctly ruled that the testimony about “instantaneous death” was irrelevant and had it stricken from the evidence, then the trial court’s decision to deny the motion for a mistrial would be entitled to an abuse of discretion standard of review. Obviously, this deferential standard should not be used when an erroneous evidentiary ruling provided the basis for the trial court’s decision on the mistrial motion.

I would find that admission of all such testimony pertaining to the physiological effects of the drug to be prejudicial. Accordingly, I would set aside the conviction and remand for a new trial. I, therefore, respectfully dissent.

       General Statutes § 21a-278 (formerly § 19-480a) provides in pertinent part: “penalty for illegal manufacture, distribution, sale, PRESCRIPTION OR ADMINISTRATION BY NON-DRUG-DEPENDENT PERSON. . . .
      (b) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marihuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”

       General Statutes § 21a-279 (formerly § 19-481) provides in pertinent part: “penalty FOR ILLEGAL POSSESSION. SUBSTITUTION OF MEDICAL TREATMENT FOR CRIMINAL SANCTIONS. . . .
      “(c) Any person who possesses or has under his control any quantity of any controlled substance other than a narcotic substance, or a hallucinogenic substance other than marihuana or who possesses or has under his control less than four ounces of a cannabis-type substance, except as authorized in this chapter, for a first offense, may be fined not more than one thousand dollars or be imprisoned not more than one year, or be both fined and imprisoned; and for a subsequent offense, may be fined not more than three thousand dollars or be imprisoned not more than five years, or be both fined and imprisoned.”

       We note that the defendant did not object to Reading’s testimony until after he had mentioned “instantaneous death.” Reading’s testimony concerning the “very intense physiological reaction” and “stimulation of the pleasure centers of the central nervous system” resulting from cocaine ingestion had been given prior thereto.

       Reading testified on January 3, 1990, the second day of the trial. The trial did not conclude until January 16, 1990, when the jury delivered its verdict.

       In his closing argument, defense counsel stated: “I am convinced and the Court can take judicial notice of the fact that in our country, the most important, the most difficult, the most impacting domestic problem, social problem, personal problem, community problem that we have is the problem of drugs. It is going to the roots, to the foundation of our society because it’s attacking our young people. . . . Most of us may not have been touched so close or so personally by the problem of drugs, but we see it every day on TV, we see it every day in the newspaper, on special programs, on radio programs.”

       Clearly, Reading’s testimony had an impact upon the jury. Reading, whose expertise as the supervising toxicologist for the state’s toxicology laboratory added credence to his testimony, predicated his testimony on his education, i.e., a bachelor’s degree in chemistry from the University of Utah and a doctoral degree in forensic toxicology from the University of Maryland, his membership in the American Board of Forensic Toxicologists as a diplomat and past vice-president, and his twenty years of experience as a toxicologist.

       The Supreme Court of Virginia in Lane v. Commonwealth, 223 Va. 713, 717-18, 292 S.E.2d 358 (1982), concluded that “[u]nlike the testimony we considered in Smith [v. Commonwealth, 223 Va. 721, 292 S.E.2d 362(1982)], McGarry’s [testimony] was not such as would excite the passions of the jury. While he testified that excessive use of the drug is dangerous, he was careful to state its normal effect is that produced by a sleeping pill. We view this testimony as being innocuous, and while it was erroneously admitted, it does not justify a reversal of Lane’s conviction.”