source: Caselaw Access Project

author: MCDONALD, J. BERDON, J.,

license: Public Domain

text:
    STATE OF CONNECTICUT v. JERMAINE WOODS
    (SC 15688)
    Callahan, C. J., and Borden, Berdon, Palmer, McDonald, Peters and Merit, Js.

      Argued January 12
    officially released October 12, 1999

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

      Toni M. Smith-Rosario, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Cara Eschuk, assistant state’s attorney, for the appellee (state).

         The listing of justices reflects their seniority status on this court as of the date of oral argument.

   Opinion

MCDONALD, J.

The defendant, Jermaine Woods, was convicted of murder in violation of General Statutes § 53a-54a (a) and sentenced to fifty years imprisonment. He appealed his conviction directly to this court pursuant to General Statutes § 51-199 (b). On appeal, the defendant raises two claims. First, he claims that the trial court improperly permitted the prosecutor to comment, during closing arguments, on the defendant’s failure to call his prior attorney to testify. Second, he claims that the trial court’s instructions on self-defense inadequately advised the jury that the defendant’s subjective belief that he was in imminent danger, even if mistaken, could justify his conduct.

We decline to review the defendant’s first claim because it was not preserved properly at trial, and the defendant may not prevail on that claim under either the plain error doctrine or State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We conclude that the defendant’s second claim is meritless and, therefore, affirm the judgment of conviction.

The jury reasonably could have found the following facts. In the early morning hours of November 5, 1994, the defendant and the victim, Jahmal Hall, began arguing in the vicinity of North Main and East Farm Streets in Waterbury. Domingo Alves, a close family friend of Hall, placed himself between Hall and the defendant. Alves put his hands out, one toward Hall and one toward the defendant, in an effort to separate them. Hall stood calmly, but the defendant kept pushing against Alves, trying to reach Hall. Alves then lightly put both his hands on the defendant’s chest to stop him from advancing. The defendant removed a gun from his pocket. When Alves saw the gun, he took a step back from the defendant. Hall stood still and appeared to be frightened. The defendant shot Hall once in the torso, then ran to his car. While driving away, the defendant told his cousin, James Bryan, who was waiting in the car, “I told him stop messing with me.” Jahmal Hall later died from the gunshot wound.

At trial, the defendant claimed that he had shot Hall in self-defense. He testified that, on the night in question, he had been drinking and dancing at clubs with Bryan. According to the defendant, Hall had given him a dirty look after the defendant danced with Hall’s ex-girlfriend. The defendant claimed that, later that night, as he started to drive home, Hall yelled obscenities at him. The defendant then stopped the car and went to talk to Hall. The defendant further testified that a group with at least three large men, including Alves, who were friends with Hall, surrounded the defendant and began pushing and shoving him. The defendant testified that he had taken out the gun to scare these men away. According to the defendant, the gun then had discharged, either because someone had banged into it or because the defendant’s finger had slipped on the trigger. After the gunshot, the defendant ran to his car. The defendant stated that he did not know whether the bullet had hit anyone until the day after the shooting, and that he had not intended to injure anybody.

William Henry Reid also testified for the defense. Reid stated that he had seen the defendant and Hall arguing on the night of the murder. Reid stated that a group of four or five individuals, all the same size as or larger than the defendant, had approached the defendant and Hall. According to Reid, those individuals had surrounded the defendant and began clutching and grabbing at him. Reid testified that he had heard a gunshot and had seen the defendant run to his car.

I

The defendant’s first claim on appeal is that the trial court improperly permitted the prosecutor to comment, during closing arguments, on the defendant’s failure to call an attorney (1993 attorney) who had represented him in 1993 to testify with respect to the defendant’s diminished mental capacity. The defendant claims that the prosecutor’s comment improperly allowed the jury to draw an adverse inference that the 1993 attorney’s testimony would have been unfavorable to the defendant; see Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960); and also violated his attorney-client privilege and right to counsel.

The following additional facts are relevant to the disposition of the defendant’s first claim. In support of the defendant’s claim that he acted in self-defense, the defendant presented evidence of his diminished mental capacity. Gregory St. John, an attorney who had represented the defendant in juvenile court on various matters from 1986 through 1990, testified that the defendant had been difficult to represent because the defendant was “slow.” In St. John’s opinion, it required a great amount of time and effort to explain matters to the defendant. St. John testified that he had never requested a competency evaluation for the defendant because he did not believe such an exam was necessary. Rosita Saucier, a guidance counselor with Waterbury Adult Education, also testified that the defendant did poorly on a 1993 standardized test of adult basic education.

On cross-examination, the defendant testified that, when facing criminal charges in 1993, he had been represented by counsel. During the court’s charging conference; see Practice Book § 42-19; the prosecutor requested permission to comment, during closing arguments, on the defendant’s failure to call the 1993 attorney to testify about the defendant’s diminished mental capacity. The defendant’s attorney objected on relevancy grounds, but the trial court granted the prosecutor’s request. During closing arguments, the prosecutor stated: “St. John told you [that he has had] clients who, just, you know, it’s difficult to get through to them when it’s something they don’t want to hear. And maybe that could explain what happened. That was between 1986 and 1990. We know that the defendant was represented by an attorney in 1993. We haven’t heard from that attorney. We haven’t heard from anybody close to that time because the only time that it matters what the defendant’s ability to form an intent was is November 4 and 5 of 1994. We don’t need to worry about any other time.

“And we have had, in my submission, no evidence from any kind of professional whatsoever that the defendant was unable to form the intent to kill.” The defendant did not object to the prosecutor’s reference to the 1993 attorney at this point or request any curative instruction from the trial court.

On appeal, the defendant claims that the prosecutor’s reference to the 1993 attorney improperly urged the jury to draw an adverse inference with respect to the defendant’s failure to call that attorney to testify. See Secondino v. New Haven, supra, 147 Conn. 675. The defendant argues that the trial court improperly granted the prosecutor permission to make this reference without the court first finding that the requirements of Secondino had been met. The defendant also claims that the prosecutor’s comment violated his attorney-client privilege and right to counsel. We reject both of these claims.

First, we decline to address the defendant’s claim that the prosecutor’s comment was improper because it had not been established that the requirements of Secondino were met. Because the defendant did not object to the prosecutor’s closing arguments on this ground at trial, he asserts that his claim is reviewable in this court under the plain error doctrine. See Practice Book § 60-5. We conclude, however, that the prosecutor’s comment does not rise to the level of plain error.

The plain error doctrine of Practice Book § 60-5 requires a defendant to demonstrate “that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” State v. Day, 233 Conn. 813, 849, 661 A.2d 539 (1995). “We repeatedly have observed that plain error is not even implicated unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) Id.

The prosecutor’s comment does not constitute plain error. The prosecutor did not ask the jury to draw an adverse inference based on the absence of testimony from the 1993 attorney and, therefore, Secondino was not implicated. See State v. Malave, 250 Conn. 723, 739, 737 A.2d 442 (1999). As we stated in Malave: “So long as counsel does not directly exhort the jury to draw an adverse inference by virtue of the witness’ absence, the argument does not fall within the Secondino rule . . . .” Id. The prosecutor’s comment in this case merely highlighted the weakness of St. John’s testimony, which related only to the years 1986 through 1990, in support of the defense of diminished mental capacity in 1994, the year that the crime in this case occurred. It was a proper comment on the weight of that evidence. Cf. State v. Magnotti, 198 Conn. 209, 220, 502 A.2d 404 (1985) (asking “ ‘[w]hat about the [defense’s case’ ” was “a comment ... on the overall quality of the defendant’s evidence and [did not call] specific attention to the [defendant’s] failure ... to testify”). Commenting on the weight of the evidence and the weakness of the defendant’s case constitutes proper argument. Thus, we decline to review the defendant’s claim under the plain error doctrine.

We also do not reach the defendant’s claim that the prosecutor’s comment violated the defendant’s attorney-client privilege and right to counsel. Although the defendant did not object to the prosecutor’s closing arguments on these grounds at trial, he now contends that the claimed violations of the attorney-client privilege and right to counsel are reviewable under State v. Golding, supra, 213 Conn. 239-40. We disagree.

In Golding, we held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) Id. The first two requirements involve a determination of whether the claim is reviewable; the second two requirements involve a determination of whether the defendant may prevail.

The defendant is not entitled to a review of his claim under Golding because it is not of constitutional magnitude. While the defendant claims that the prosecutor’s comment violated his constitutional right to counsel, “merely placing a constitutional tag on a nonconstitutional claim does not make it so.” (Internal quotation marks omitted.) State v. McIntyre, 242 Conn. 318, 329, 699 A.2d 911 (1997). During her argument, the prosecutor merely suggested that there were no witnesses, whether the defendant’s 1993 attorney or others, who testified about the defendant’s mental capacity in 1993 or at any other time close to the date of the crime, i.e., November 5, 1994. The prosecutor’s comment highlighted the defendant’s failure to support his theory of diminished mental capacity with any contemporaneously relevant evidence. The defendant’s constitutional right to counsel and attorney-client privilege for communications; see, e.g., State v. Cascone, 195 Conn. 183, 186, 487 A.2d 186 (1985); were not compromised by this comment.

Furthermore, we have held that “[w]e will not afford Golding review to claims of prosecutorial misconduct [in closing argument] where the record does not disclose a pattern of misconduct . . . that was so blatantly egregious that it infringed on the defendant’s right to a fair trial.” (Internal quotation marks omitted.) State v. Williams, 231 Conn. 235, 246, 645 A.2d 999 (1994). “[C]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line . . . .” (Internal quotation marks omitted.) Id. Therefore, “we must review the comments complained of in the context of the entire trial. . . . [T]he burden is on the defendant to demonstrate that the remarks were so prejudicial that he was deprived of a fair trial and the entire proceedings were tainted.” (Citations omitted.) State v. Robinson, 227 Conn. 711, 746, 631 A.2d 288 (1993). In this case, the prosecutor mentioned the 1993 attorney only once, as one possible witness to the defendant’s mental capacity in 1993. Even if we assume that the prosecutor’s comment was improper, it was not so egregious as to infringe upon the defendant’s right to a fair trial.

Finally, we note that, prior to making her comment, the state’s attorney sought and received permission from the trial court. This permitted judicial review and gave the defendant fair notice of the comment. See State v. Malave, supra, 250 Conn. 740.

We conclude that the prosecutor’s comment during closing arguments did not improperly urge the jury to draw an adverse inference with respect to the absence of testimony from the 1993 attorney. Thus, the defendant’s claim is not reviewable under the plain error doctrine. We also conclude that the defendant’s claim that the comment violated his attorney-client privilege and right to counsel is not entitled to review under Golding.

II

The defendant also claims that the trial court’s instructions on self-defense were improper. We disagree.

In reviewing a challenge to the trial court’s instructions, “we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. . . . The test is whether the charge as a whole presents the case to the jury so that no injustice will result.” (Citations omitted; internal quotation marks omitted.) State v. Lemoine, 233 Conn. 502, 509, 659 A.2d 1194 (1995). “When considering a claim of failure to deliver a requested charge . . . [t]he court . . . has a duty not to submit to the jury, in its charge, any issue upon which the evidence would not reasonably support a finding. ” (Citations omitted.) State v. Diggs, 219 Conn. 295, 298-99, 592 A.2d 949 (1991).

The defendant claims that the trial court improperly failed to give his requested instruction pertaining to the defense of mistake of fact. “The defense of mistake of fact is available under General Statutes § 53a-6 (a), which provides in relevant part: ‘A person shall not be relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief of fact, unless: (1) Such factual mistake negates the mental state required for the commission of an offense . . . or (3) such factual mistake is of a kind that supports a defense of justification. ’ A mistake of fact exists ‘when one makes an erroneous perception of the facts as they actually exist. . . . The defense arises only where the defendant misperceives an objective state of existing fact . . . .’” State v. Beltran, 246 Conn. 268, 273-74, 717 A.2d 168 (1998).

An instruction on the defense of mistake of fact is required only when evidence supporting it is placed before the jury. Id., 274. In this case, as in Beltran, the defendant did not present any evidence at trial that he had shot Hall under any mistaken belief that he was being attacked. The state’s case was that the defendant shot Hall during a verbal argument and with little provocation. The defendant, on the other hand, testified that a group of large men had surrounded him and were physically attacking him when he shot Hall. The defendant testified that he believed that deadly force was necessary to protect himself from imminent harm. Reid also testified that the defendant was being attacked when the shot was fired. The defendant did not present any evidence showing that he misperceived that he was being attacked. His request to charge, however, was based on the fact that he may have misperceived a threat when none had existed. The defendant, therefore, was not entitled to an instruction with respect to the defense of mistake of fact.

Moreover, the trial court’s charge adequately instructed the jury that it was required to consider the defendant’s subjective belief that he was in danger. The charge did not purport to require the defendant’s subjective belief to be correct, but only reasonable. The court instructed the jury that “[t]he statute on self-defense focuses on the person claiming self-defense. It focuses on what he reasonably believed under the circumstances and presents a question of fact for the jury. In other words, what is important is what the defendant reasonably believed under the circumstances in this case. . . . Self-defense thus requires the jury to measure the justifiability of the defendant’s actions from a subjective perspective, that is, what the defendant reasonably believed under the circumstances presented in this case, and on the basis of what the defendant perceived the circumstances to be.” The trial court properly instructed the jury to focus on the defendant’s subjective belief that he was in danger. The jury, therefore, properly was instructed that an honest and reasonably held belief that deadly force is necessary to repel an imminent attack would be justifiable self-defense.

The judgment is affirmed.

In this opinion CALLAHAN, C. J., and BORDEN, PALMER, PETERS and MENT, Js., concurred.

BERDON, J.,

dissenting. In the present case, the trial court permitted the prosecutor in his closing argument to urge the jury to draw an adverse inference from the accused’s decision not to call as a witness an attorney who had previously represented him. In my view, this ruling violated the defendant’s right to counsel under both the federal constitution and our state constitution.

On November 5, 1994, the defendant, Jermaine Woods, was responsible for a fatal shooting. On trial for murder, the defendant argued that — because of his diminished mental capacity — he had believed that he was acting in self-defense. The majority explains that “Gregory St. John, an attorney who had represented the defendant . . . from 1986 through 1990, testified [on direct examination by defense counsel] that the defendant had been difficult to represent because the defendant was ‘slow.’ In St. John’s opinion, it required a great amount of time and effort to explain matters to the defendant.”

In its closing argument to the jury, the state emphasized that St. John had not interacted with the defendant for several years prior to 1994, the year of the shooting. The state then referred to the defendant’s testimony, during cross-examination, that: (1) he had entered a plea bargain in an unrelated criminal matter in 1993; and (2) he had been represented by counsel at that time. With the express permission of the court, the state then made the following argument: “We know that the defendant was represented by an attorney in 1993. We haven’t heard from that attorney. . . . [T]he only time that it matters what the defendant’s ability to form an intent was is November 4 and 5 of 1994. We don’t need to worry about any other time.” (Emphasis added.) In my view, this argument violated the defendant’s right to counsel, which is protected by the sixth amendment of the United States constitution and article first, § 8, of the Connecticut constitution.

“Th[e] constitutional right to . . . effective assistance of counsel is one of those ‘fundamental principles of liberty and justice which he at the base of all our civil and political institutions.’ Powell v. Alabama, [287 U.S. 45, 67, 53 S. Ct. 55, 77 L. Ed. 158 (1932)].” Palmer v. Adams, 162 Conn. 316, 320, 294 A.2d 297 (1972). “It is . . . settled beyond question that, under both the federal and the state constitutions, th[e] right to the assistance of counsel includes the right to communicate effectively with counsel in the preparation of one’s defense. State v. Mebane, 204 Conn. 585, 603, 529 A.2d 680 (1987), cert. denied, 484 U.S. 1046, 108 S. Ct. 704, 98 L. Ed. 2d 870 (1988) . . . State v. Ferrell, 191 Conn. 37, 42 n.5, 463 A.2d 573 (1983) . . . Flaherty v. Warden, 155 Conn. 36, 39, 229 A.2d 362 (1967) .... [T]he denial of [this right] . . . could convert the appointment of counsel into a sham and nothing more than a formal compliance with the Constitution’s requirement that an accused be given the assistance of counsel. Avery v. Alabama, 308 U.S. 444, 446, 60 S. Ct. 321, 84 L. Ed. 377 [1940]; Chambers v. Maroney, 399 U.S. 42, 59, 90 S. Ct. 1975, 26 L. Ed. 2d 419 [1970]. State v. Greene, 161 Conn. 291, 296, 287 A.2d 386 (1971).” (Internal quotation marks omitted.) Washington v. Meachum, 238 Conn. 692, 731, 680 A.2d 262 (1996).

The threads of “the right to communicate effectively with counsel in the preparation of one’s defense” are interwoven with the threads of the attorney-client privilege, which protects any conversation that is “necessary to obtain informed legal advice . . . .” Ullmann v. State, 230 Conn. 698, 713, 647 A.2d 324 (1994). Together, they form a single fabric. The trial court’s ruling in the present case was a dagger that slashed this fabric to shreds. In the process, it converted into a sham the cluster of constitutional guarantees associated with the right to counsel and the attorney-client privilege.

In State v. Toste, 178 Conn. 626, 424 A.2d 293 (1979), this court considered facts that are less egregious than those that are presently before us. The defendant in Tosté argued that the trial court erred by admitting the testimony of a psychologist who had “examined the defendant pursuant to a defense motion but was called to testify as a state’s witness.” Id., 627-28. More specifically, “[t]he defendant contended] that the admission of [the psychologist’s] testimony violated the attorney-client privilege and, thus, the defendant’s sixth amendment right to the assistance of counsel.” (Emphasis added.) Id., 628. The court adopted this argument, concluding that “[t]he court’s admission of [the psychologist’s] testimony as a state’s witness was in error.” Id.

If it violates the right to counsel to admit into evidence the adverse testimony of a psychologist retained to assist defense counsel in preparing his case, then it follows a fortiori that it must violate the right to counsel to permit the state to urge the jury to infer that the testimony of a former attorney would have been unfavorable. In short, by invading the sanctity of the relationship between the defendant and his former attorney, the trial court in the present case violated the defendant’s right to counsel under the federal constitution and our state constitution.

The majority attempts to justify its refusal to review the defendant’s claim with the argument that he did not properly object at trial. This is simply untrue. The defendant’s trial counsel made a timely objection that was clear and unambiguous, albeit not phrased in the terminology of constitutional discourse. It is beyond question that the trial court had ample notice of the defendant’s claim.

Even if I were mistaken in my belief that the defendant’s argument adequately is preserved, we would nevertheless be obligated to reach the defendant’s claim under Golding, which sets forth the rules that govern our review of unpreserved arguments. State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The majority claims that Golding review is inappropriate because the defendant’s claim is “not of constitutional magnitude.” Since both the federal constitution and our state constitution explicitly protect the right to counsel, the majority’s argument is unavailing. Moreover, Golding review is particularly appropriate in the present case because the defendant’s specific objection at trial alerted the trial court to the issue that the majority declines to reach.

For these reasons, I would reverse the trial court’s judgment and order a new trial. Accordingly, I dissent.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”

       General Statutes § 51-199 (b) provides in relevant part: “The following matters shall be taken directly to the Supreme Court ... (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony, including any persistent offender status, for which the maximum sentence which may be imposed exceeds twenty years . . . .”

         This area was a popular spot for people to socialize after the surrounding bars and clubs closed for the night, and there were approximately 100 people in the area on the night of Hall’s murder.

       The following colloquy developed at the charging conference:
      “[Cara Eschuk (Assistant State’s Attorney)] . . . You will recall that I indicated that if the court was going to . . . give the diminished capacity charge, that I would wish to make reference to certain witnesses or potential witnesses who were not called. Your Honor requested that I obtain the information on which I based that remark and I believe Your Honor was handed a copy of the excerpt which makes reference to the fact that the defendant was in trouble in 1993 and was at that time working with an attorney. . . .

        “Well, Your Honor, I . . . would indicate that the state intends to point out to the jury that although an attorney was called who represented [the defendant] from 1986 to 1990, it appears that [the defendant] was represented in 1993 and no such attorney was called.
      “The Court: You wish to argue that point?
      “Ms. Eschuk: Yes, Your Honor. Since that is very similar to a Secondino matter and the state did not request the court to charge Secondino, I just thought that I would put the court on notice on that matter.
      “The Court: Well, the record reveals that you asked the defendant on cross-examination if he worked with an attorney on that occasion, and his answer is yes. . . . Attorney Kennedy, do you wish to be heard?
      “[Jayne F. Kennedy (Defense Counsel)] ... I don’t think it’s an appropriate argument to be made. The state could have called his other attorney in rebuttal or attempted to. . . . [I]t wasn’t relevant. We presented evidence sufficient to get a charge of diminished capacity and arguing what we didn’t present, I don’t think is appropriate.
      “The Court: Thank you. Attorney Eschuk, I’ll allow . . . you to point out to the jury the defendant’s response to your question and I’ll allow you to argue that no such attorney, of course, appeared in this case.
      “Ms. Eschuk: Thank you, Your Honor.
      “The Court: I caution you as to the implications of all that, however.
      “Ms. Eschuk: I don’t propose to take the matter much further than that, Your Honor.”

        Secondino permitted trial courts to give instructions, known as Secondino or missing witness instructions, to the jury that it could draw an adverse inference from a party’s failure to call a witness to testify at trial where the witness is available and naturally would be produced by that party. Secondino v. New Haven, supra, 147 Conn. 675. The jury would be instructed that it could draw an inference that the witness’ testimony would be unfavorable to the party failing to call the witness. Counsel also were permitted to argue such an inference to the jury with the permission of the trial court. See State v. Daniels, 180 Conn. 101, 113, 429 A.2d 813 (1980). We recently abandoned the Secondino rule in criminal trials. State v. Malave, 250 Conn. 722, 738, 737 A.2d 442 (1999). We, therefore, need not address the defendant’s additional claim that we should use our supervisory powers to abandon the Secondino rule in this case.

       Under Secondino, a missing witness instruction or argument was appropriate only if the missing witness was both available and a witness whom the party naturally would have produced. E.g., State v. Shashaty, 205 Conn. 39, 43, 529 A.2d 1308 (1987), cert. denied, 484 U.S. 1027, 108 S. Ct. 753, 98 L. Ed. 2d 766 (1988).

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall epjoy the right ... to have the assistance of counsel for his defense.” The sixth amendment right to counsel is made applicable to the states through the fourteenth amendment due process clause. See generally Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1962).
      Similarly, the constitution of Connecticut, article first, § 8, provides in relevant part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel . . . .”

       The court’s instruction covering the defendant’s claim of self-defense provides in relevant part: “The statute on self-defense focuses on the person claiming self-defense. It focuses on what he reasonably believed under the circumstances and presents a question of fact for the jury. In other words, what is important is what the defendant reasonably believed under the circumstances in this case. The test for the degree of force in self-defense is a subjective-objective test, meaning it has some subjective aspects and some objective aspects. Self-defense thus requires the jury to measure the justifiability of the defendant’s actions from a subjective perspective, that is, what the defendant reasonably believed under the circumstances presented in this case, and on the basis of what the defendant perceived the circumstances to be. [General Statutes §] 53a-19 (a) requires, however, that the defendant’s belief must have been reasonable and not irrational or unreasonable under the circumstances. That is, would areasonable person in the defendant’s circumstances have reached that belief? That is the objective aspect of the test. It is both a question of what his belief was and whether it was reasonable. In this case, if you find proven beyond a reasonable doubt that the persons the defendant claimed were surrounding him on the street immediately before the shot was fired were not using or about to use deadly, physical force or to inflict great bodily harm upon him, and if you further find proven beyond a reasonable doubt that the defendant had no reasonable belief that those persons were using or about to use deadly, physical force or about to inflict great bodily harm upon him, then . . . you would, under those conditions, reject the defense of self-defense.”

       The defendant submitted a written request to charge that included the following language: “In judging the danger to himself, however, the defendant is not required to act with infallible judgment. Ordinarily one exercising the right of self-defense is required to act instantly and without time to deliberate and investigate. Under such circumstances, of course, it’s possible, often possible, to mistake an actual threat when none in fact existed.”

       For the text of these constitutional provisions, see footnotes 3 and 4 of this dissent.

       In the brief that he submitted to this court, the defendant also emphasized the following evidence: “Rosita Saucier, a guidance counselor with Waterbury Adult Education, also testified to [the defendant’s] level of function, as measured by his grade equivalent scores on the standardized Test of Adult Basic Education. . . . These scores were abysmal. For example, in 1993, a year before the incident at issue here, [the defendant] tested out at a 3.4 (third grade-fourth month) vocabulary level.”

       The sixth amendment to the United States constitution provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.”

       Article first, § 8, of the Connecticut constitution provides in pertinent part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel . . . .”

       “When the customary right to counsel was formally incorporated into the Connecticut constitution in 1818, the advice and services of counsel were regarded as crucial to a criminal defendant.... More contemporary developments suggest that this state’s commitment to securing the right to counsel has not diminished since 1818. Not only was Connecticut the first state to adopt the public defender system; State v. Hudson, 154 Conn. 631, 635, 228 A.2d 132 (1967); but the right to counsel was secured to criminal defendants in this state long before the mandate of Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 [(1962) (holding that the fourteenth amendment incorporated the sixth amendment right to counsel)] .... Spring v. Constantino, 168 Conn. 563, 566-67 n.2, 362 A.2d 871 (1975). The United States Supreme Court has turned to the historical experience of Connecticut in expanding the right to counsel under the federal constitution. Faretta v. California, 422 U.S. 806, 827, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); Powell v. Alabama, [287 U.S. 45, 62-63, 53 S. Ct. 55, 77 L. Ed. 158 (1932)].” (Citation omitted; internal quotation marks omitted.) State v.
        Stoddard, 206 Conn. 157, 165, 537 A.2d 446 (1988); see also State v.Piorkowski, 243 Conn. 205, 217, 700 A.2d 1146 (1997).

        Washington v. Meachum, supra, 238 Conn. 731.

       As the United States Supreme Court emphasized just last year, the attorney-client privilege “is one of the oldest recognized privileges for confidential communications.” Swidler & Berlin v. United States, 524 U.S. 399, 118 S. Ct. 2081, 2084, 141 L. Ed. 2d 379 (1998). “It is important not to weaken the privilege . . . because, as the United States Supreme Court has explained, even the threat of disclosure would have a detrimental effect on attorneys’ ability to advocate for their clients while preserving their ethical duty of confidentiality. Hickman v. Taylor, 329 U.S. 495, 511, 67 S. Ct. 385, 91 L. Ed. 451 (1947) (where threat of disclosure . . . ‘the interests of the clients and the cause of justice [are] poorly served’).” Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., 249 Conn. 36, 48-49, 730 A.2d 51 (1999). Connecticut, in particular, “has a long-standing, strong public policy of protecting attorney-client communications. See, e.g., Doyle v. Reeves, 112 Conn. 521, 523, 152 A. 882 (1931) (quoting common-law rule embodied in 5 J. Wigmore, Evidence [2d Ed. 1923] § 2292).” Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., supra, 48.

       To make the same point without metaphor, it is impossible to “communicate effectively with counsel” unless you are shielded by the protection of the attorney-client privilege, which “was designed, in large part, to encourage full disclosure by a client to his or her attorney so as to facilitate effective legal representation. State v. Cascone, 195 Conn. 183, 188, 487 A.2d 186 (1985).” (Emphasis added.) Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., 249 Conn. 36, 48, 730 A.2d 51 (1999).

       It is apparent that the threat of such an argument would have a chilling effect on the defendant’s “right to communicate effectively with counsel in the preparation of [his] defense.” Washington v. Meachum, supra, 238 Conn. 731. Although a defendant may have access to a person with a law degree, he justifiably will be afraid of communicating effectively with that person if such communication may later be used against him.

       The defendant’s trial counsel asserted the following argument: “I don’t think it’s an appropriate argument to be made. The state could have called [the defendant’s] other attorney in rebuttal or attempted to [do so], ... [I]t wasn’t relevant. We presented evidence sufficient to get a charge of diminished capacity, and arguing what we didn’t present I don’t think is appropriate.”

       The majority also invokes this court’s policy of declining to “afford Golding review to claims of prosecutorial misconduct . . . where the record does not disclose a pattern of misconduct . . . that was so blatantly egregious that it infringed on the defendant’s right to a fair trial.” (Internal quotation marks omitted.) In my view, the violation of the defendant’s rights under both the federal constitution and our state constitution is so blatantly egregious that it per se infringes on his right to a fair trial. This conclusion is unaffected by the fact that the prosecutor in the present case managed to violate the defendant’s constitutional rights without engaging in a lengthy pattern of misconduct.


text:
    STATE OF CONNECTICUT v. ROBERT CLAY
    Decided July 14, 1999

      Lisa Steele, special public defender, in support of the petition.

      Nancy L. Chupak, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 51 Conn. App. 694 (AC 16279), is denied.


text:
    L & R REALTY ET AL. v. CONNECTICUT NATIONAL BANK CONNECTICUT NATIONAL BANK v. L & R REALTY ET AL.
    Decided July 14, 1999

      Robert G. Skelton, in support of the petition.

      Ann M. Siczewicz, in opposition.
   The petition by Raymond LeFoll, Gail LeFoll and L & R Realty, Inc. for certification for appeal from the Appellate Court, 53 Conn. App. 524 (AC 14969/16092), is denied.


text:
    ANDREW BURNHAM v. JOHN F. CARR, JR.

      John F. Carr, Jr., pro se, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 53 Conn. App. 425 (AC 17694), is denied.

Decided July 14, 1999

Margaret Fogerty Rattigan, in opposition.


text:
    CONSTANCE DANKO ET AL. v. REDWAY ENTERPRISES INC., ET AL.
    Decided July 14, 1999
    The Supreme Court docket number is SC 16150.

      Joshua D. Koskoff, in support of the petition.

      Donn A. Swift and Eric P. Smith, in opposition.
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 53 Conn. App. 373 (AC 17736), is granted, limited to the following issue:

“Did the Appellate Court properly conclude that: (1) statements made in a stricken pleading are admissible as evidential admissions of the party who pleaded them; and (2) an exception exists to the foregoing rule for statements made in an apportionment complaint?”


text:
    CONSTANCE DANKO ET AL. v. REDWAY ENTERPRISES INC., ET AL.
    The Supreme Court docket number is SC 16150.
   The named defendant’s cross petition for certification for appeal from the Appellate Court, 53 Conn. App. 373 (AC 17736), is granted, limited to the following issue:

“Did the Appellate Court properly conclude that: (1) statements made in a stricken pleading are admissible as evidential admissions of the party who pleaded them; and (2) an exception exists to the foregoing rule for statements made in an apportionment complaint?”

Decided July 14, 1999

Donn A. Swift and Eric P. Smith, in support of the petition.


text:
    PETER R. HENNING ET AL. v. VINCENT F. ROMEO ET AL.
    Decided July 14, 1999

      David S. Grossman, in support of the petition.

      Michael J. Mannion, in opposition.
   The defendants’ petition for certification for appeal from the Appellate Court, 53 Conn. App. 903 (AC 17988), is denied.


text:
    STATE OF CONNECTICUT v. JAMES GRANT
    Decided July 14, 1999

      Lauren Weisfeld, assistant public defender, in support of the petition.

      Christopher J. Godialis, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 53 Conn. App. 903 (AC 18643), is denied.


text:
    IN RE JONATHAN M.
   The respondent father’s petition for certification for appeal from the Appellate Court (AC 19120) is denied.

BERDON, J., with whom MCDONALD, J., joins,

dissenting. The trial court terminated the parental rights of the petitioner, John M., for no reason other than this: he tried to keep his infant son Jonathan M. out of harm’s way. The Appellate Court dismissed John’s appeal from this termination on the ground that he failed to prosecute his pro se appeal with due diligence, then denied his subsequent motion to open the dismissal. John seeks certification to appeal from this denial. I would grant certification, summarily reinstate the appeal and transfer the appeal to this court.1 cannot say that I am surprised to report that the majority disagrees with me.

In its opposition to this petition, the state has cited State v. Anonymous, 179 Conn. 155, 171, 425 A.2d 939 (1979), for the proposition that “[t]ime is of the essence in child custody cases.” This proposition is indisputably correct, but there is another side to the coin: a father has a “fundamental liberty interest ... in the care, custody, and management of [his natural] child . . . .” Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982).

The trial court opinion explained the underlying facts of this case as follows: “On October 31,1997, the department of children and families [department] filed coterminous petitions for neglect and for the termination of the parental rights of Stacie M. and John M. to then-son, Jonathan M. [who was about five months old at the time and who was] one year and five months old [at the time of trial]. Jonathan was placed in foster care on October 29, 1997, after a fight in the home between his mother and father concerning his care. His mother had been absent from the household for two weeks, on a cocaine ‘binge.’ Upon her return, [John] refused to leave [Jonathan] with her ... as he thought she was high on drugs. They clashed verbally and physically with Jonathan between them. After the police arrived, Stacie was arrested and Jonathan was immediately placed in foster care. On October 31, 1997, [the department] secured an order of temporary custody (Ward, J.). As to neglect, [the department] alleged both that Jonathan had been denied proper care and attention, physically, educationally and morally and also that he was being permitted to live under conditions, circumstances or associations injurious to his well-being. The termination petition alleged that [Jonathan] has been denied, by reason of an act of parental commission or omission, the care, guidance or control necessary for his physical, educational, or emotional well-being. [General Statutes] § 17a-112 (c) (3) (C). Jonathan has remained in foster care since October, 1997, and has regular visitation with his mother and father. Stacie had an older child, Dalilah Rose N., who was removed from her care. Her rights to this child were terminated (Foley, J.) on December 16, 1996, [which] order [was] rectified on February 14, 1997. This judgment was affirmed in a per curiam decision of the Appellate Court, In re Dalilah N., 48 Conn. App. 921 [714 A.2d 731] (1998).” In re Jonathan M., Superior Court, Juvenile Matters, Child Protection Session at Middletown, Docket No. H14-CP97-005574A (October 23, 1998).

John recited the following procedural history in the petition for certification that he submitted to this court: “On October 23,1998, the trial court (Quinn, J.) entered judgment terminating [John’s] parental rights to his son, Jonathan .... The court adjudicated on the statutoiy termination ground of acts of parental commission or omission. . . . The trial court granted the motion of [John’s] court appointed attorney to withdraw from representing [him]. [John], due to his indigence, was appointed [another] attorney who was directed by the trial court, pursuant to [Practice Book] § 35-4 (b), to: (1) review potential claims for appeal; and (2) either: (a) secure [John’s] right to appeal by filing an appeal in accordance with the relevant provisions of the Rules of Appellate Procedure; or (b) move to withdraw in a timely enough fashion to allow the Appellant the opportunity to secure private counsel or proceed pro se.

“The attorney appointed by the trial court to act on [John’s] behalf neither made inquiry into whether there were any issues worthy of appeal, nor secured [John’s] right to take an appeal, nor did he make it known to the judicial authority that there was no merit to an appeal at the earliest possible moment. [John], upon his own initiative, and with no financial resources, was able to secure his appeal rights by filing pro se an application for waiver of fees and costs (which was granted by the court on December 2, 1998), and [the appropriate appeal] form. Being unlettered in the law, and without the financial ability to hire an attorney, [John] was not able to figure out [what additional papers] he needed to file ... in order to proceed with his appeal.

“On December 23, 1998, the [state] filed a Motion to Dismiss for Failure to Prosecute with Due Diligence asserting that [John] had not filed: (1) a preliminary designation of the pleadings; (2) a transcript certification; (3) a docketing statement; and (4) a proposed judgment file. The . . . Appellate Court dismissed [John’s] appeal sometime in the early part of 1999. [John] did not have notice of the dismissal.

“On April 6, 1999, [John], through counsel, filed a Motion to Open Dismissal for Failure to Prosecute With Due Diligence, (along with the requisite . . . papers), which was denied on May 5, 1999.” (Citations omitted; internal quotation marks omitted.)

My colleagues in the majority are insensitive to the fact that the termination of parental rights represents “ ‘the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent . . . .’ It is, accordingly, ‘a most serious and sensitive judicial action.’ Anonymous v. Norton, 168 Conn. 421, 430, 362 A.2d 532, cert. denied, 423 U.S. 935, 96 S. Ct. 294, 46 L. Ed. 2d 268 (1975). Although the severance of the parentchild relationship may be required under some circumstances, the United States Supreme Court has repeatedly held that the interest of parents in their children is a fundamental constitutional right that ‘undeniably warrants deference and, absent a powerful countervailing interest, protection.’ Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); see also In re Juvenile Appeal (83-CD), 189 Conn. 276, 295, 455 A.2d 1313 (1983) (noting that ‘it is both a fundamental right and the policy of this state to maintain the integrity of the family’). Termination of parental rights does not follow automatically from parental conduct justifying the removal of custody. ‘The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life.’ Santosky v. Kramer, [supra, 455 U.S, 753].” In re Jessica M., 217 Conn. 459, 464-65, 586 A.2d 597 (1991).

The facts of this case narrate a nightmare. Our judicial system has failed Jonathan, violated John’s constitutional rights, and parted John from Jonathan with a legal wedge. It is difficult for me to believe that a father’s parental rights could be terminated simply because he tried to protect his son; sadly, this is exactly what happened. It is equally difficult for me to believe that the Appellate Court and my colleagues in the majority could rubber stamp the obvious injustice in this case; sadly, this is also exactly what happened.

Decided July 14, 1999

Raymond J. Rigat, in support of the petition.

Lawrence G. Widem, assistant attorney general, in opposition.

Accordingly, I dissent.

       In the interest of protecting the privacy of the family, the surnames of the parties have been omitted from official documents.

       The motion to open the dismissal was filed by an attorney who included all of the necessary papers that John — as a layperson — had failed to file in his pro se appeal.

       We may transfer cases to ourselves pursuant to Practice Book § 65-1 and General Statutes 51-199 (c).

       John is unrelated to this child.


text:
    STATE OF CONNECTICUT v. FRANK PERRELLI
    Decided July 14, 1999

      Frank Perrelli, pro se, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court is dismissed.


author: BERDON, J.,

text:
    STATE OF CONNECTICUT v. VAN DORSEY
   The defendant’s petition for certification for appeal from the Appellate Court, 53 Conn. App. 502 (AC 17343), is denied.

BERDON, J.,

dissenting. I would grant certification to appeal on the following issues: Whether the Appellate Court correctly affirmed the trial court’s decision denying (1) the defendant’s requests for production of the complainant’s psychiatric, psychological/social work/ therapy records; and (2) the defendant’s request for a continuance to permit the defendant to subpoena the out-of-state therapist whose records were sought by the defendant for purposes of cross-examining the victim regarding her capacity to relate the truth regarding her complaint.

Decided July 21, 1999

Melvin A. Simon, special public defender, in support of the petition.

Nancy L. Chupak, deputy assistant state’s attorney, in opposition.


text:
    STATE OF CONNECTICUT v. SHEILA ALDRICH
    Decided July 21, 1999

      Robert E. Byron, special public defender, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 53 Conn. App. 627 (AC 17701), is denied.


text:
    STATE OF CONNECTICUT v. CESAREO HERNANDEZ
    The Supreme Court docket number is SC 16151.

      Carolyn K. Longstreth, assistant state’s attorney, in support of the petition.
   The petition of the state of Connecticut for certification for appeal from the Appellate Court, 53 Conn. App. 706 (AC 17894), is granted, limited to the following issue:

“Did the Appellate Court properly affirm the trial court’s order requiring the state to disclose the identity of a confidential informant?”

Decided July 21, 1999

Teri E. Bayer, in opposition.


text:
    MATTHEW ANGUISH v. TLM, INC., ET AL.
   The plaintiffs petition for certification for appeal from the Appellate Court, 53 Conn. App. 241 (AC 18076), is denied.

BERDON, J.,

dissenting. The plaintiff, Matthew Anguish, was stripped of his temporary total disability benefits (temporary benefits) — awarded pursuant to the Workers’ Compensation Act (act) — without ever being afforded an opportunity to be heard at a meaningful time and in a meaningful manner before the workers’ compensation commissioner (commissioner). Temporary benefits are a substitute for the wages that injured employees are no longer physically capable of earning; without these benefits, many injured employees and their families would be unable to afford food, shelter, and the other necessities of life. In my view, the failure to conduct even an informal hearing at an appropriate time before depriving an injured employee of temporary benefits violates common sense, the act and fundamental principles of due process.

The majority of this court refuses to grant certification to review the termination of the plaintiffs temporary benefits, presumably because it believes that the controversy is moot. The appeal may be moot at the moment for Matthew Anguish, but it is not moot for thousands of other injured employees who are deprived of temporary benefits without first being afforded meaningful procedural safeguards. This case presents a classic example of a well recognized exception to the mootness doctrine: the harm that the plaintiff suffered is “capable of repetition, yet evadjes] review.” This is so even under this court’s highly restrictive application of this equitable doctrine. Loisel v. Rowe, 233 Conn. 370, 389, 660 A.2d 323 (1995) (Katz, J., with whom Berdon, J., joined, dissenting).

In an effort to prevent the kind of injustice that befell the plaintiff in the present case, the legislature requires a hearing before an injured employee’s temporary benefits may be terminated. General Statutes § 31-296 provides in pertinent part: “The employee may request a hearing on any . . . proposed discontinuance or reduction [of temporary benefits] within ten days of receipt of . . . notice. Any such request for a hearing shall be given priority over requests for hearings on other matters. The commissioner shall not approve any such discontinuance or reduction prior to . . . the completion of such hearing . . . ,” In the present case, the plaintiffs temporary benefits were terminated ex parte, without so much as an informal hearing conducted at a meaningful time.

I rely on the uncontradicted facts contained in the plaintiffs petition to this court. “On December 16,1986, the plaintiff . . . injured his back while employed by the defendant TLM, Inc., in Greenwich, Connecticut. A voluntary agreement was approved by the [commissioner] for the Seventh District on September 7, 1988. The plaintiff received [temporary benefits] ....

“After the plaintiffs second lumbar surgery on November 20, 1992, the defendants issued a [f]orm 36 ... by which the defendants sought to terminate the plaintiffs [temporary benefits]. The plaintiff filed a timely objection to the defendant’s [f]orm 36, and the commissioner held an informal hearing on October 31, 1994. At that time, the commissioner indicated that he would defer a decision on the Form 36 pending the outcome of an independent medical examination [IME] which was scheduled to take place with Henry Rubinstein, M.D. on November 29, 1994. . . .

“Immediately upon receiving a copy of Dr. Rubinstein’s report on December 19,1994 [which opined that the plaintiff could return to work], plaintiffs counsel wrote to the commissioner to request an Emergency Informal Hearing to revisit the outstanding issue of the [f]orm 36. However, previously on December 19, 1994, based on the IME report, despite the plaintiffs pending objection and without first holding even an informal hearing on the subject of the . . . report, the commissioner approved the [f]orm 36 retroactively to August 31,1994. The effect of the commissioner’s decision was that the plaintiffs [temporary benefits] were discontinued and all [temporary benefits] paid from August 31, 1994, through the date of the commissioner’s decision were then used as an advance against the plaintiffs specific compensation benefit.

“The plaintiff filed a timely appeal with the [review board]. In its decision dated July 13, 1995, the [review board] sustained the commissioner’s ruling, did not reinstate the plaintiffs [temporary benefits] and remanded the case to the Seventh District for a formal evidentiary hearing on the issue of the [f]orm 36. . . . [T]he plaintiff remained deprived of the benefits to which he was entitled during the one-year interim [before the formal hearing took place], ...”

“Subsequently, pursuant to the remand from the [review board], the commissioner held a formal hearing on July 18, 1996. In a Finding and Award dated August 22, 1996, and signed September 17, 1996, the commissioner revoked the granting of the [f]orm 36 and reinstated the plaintiffs entitlement to [temporary benefits] retroactively to the date of the erroneous termination. The commissioner also concluded, without discussion, that the procedure utilized was lawful and that the plaintiffs due process rights had not been violated.

“The plaintiff timely appealed to the [review board] regarding the statutory and due process considerations in granting the [f]orm 36. In a decision dated January 20, 1998, the [review board] dismissed the plaintiffs appeal without addressing the merits of the plaintiffs claims on the ground that, inter alia, the plaintiffs statutory and constitutional claims concerning the procedure used in approving the [f]orm 36 had been rendered moot. The plaintiff then timely appealed the matter to the Appellate Court pursuant to General Statutes § 31-301b. In a decision dated May 11, 1999, the Appellate Court dismissed the plaintiffs appeal for mootness, concluding that the otherwise moot statutory and constitutional violation presented by the plaintiff did not qualify for review under the capable of repetition yet evading review exception. Anguish v. TLM, Inc., [supra, 53 Conn. App. 243].”

The Appellate Court was wrong to dismiss the plaintiffs appeal from the termination of his temporary benefits. It is apparent that the four factors identified in Loisel v. Rowe, supra, 233 Conn. 382, are met here: (1) the issue is “of such short duration” that it will evade review because the benefits are temporary; (2) “the [issue] relate[s] to an ongoing civil . . . program of the state” because, as the defendant acknowledges, thousands of employees have their temporary benefits terminated every year; (3) “the plaintiff . . . [is] likely to be affected in the same manner again” because he still receives temporary benefits; and (4) the compensation of injured workers and fundamental concerns of due process are both “matters of public importance.” Accordingly, this case falls squarely within the “capable of repetition yet, evading review” exception to the general rule that we will not adjudicate controversies that have become moot. Id., 382-83.

Turning to the merits of the plaintiffs arguments, the review board claimed that the plaintiffs right to due process was protected because he got an informal hearing after the form 36 was issued, even though the IME was not scheduled to take place for nearly one month after that hearing. This is absurdly and flagrantly wrong. The only meaningful time for a hearing would have been after the plaintiff had received and analyzed the results of the IME, because these results lay at the heart of the commissioner’s ultimate ruling. It was unjust and inequitable to terminate the plaintiffs temporary benefits without first affording him a meaningful opportunity to present arguments relating to the results of the IME.

The termination of the plaintiffs temporary benefits without any post-examination hearing violated both common sense and the procedural safeguards contained in § 31-296. Moreover, stripping the plaintiff of his temporary benefits also violated fundamental principles of due process. See, e.g., Armstrong v. Manzo, 380 U.S. 545, 550, 85 S. Ct. 1187, 14 L. Ed. 2d 26 (1965), quoting Mullane v. Central Hanover, 339 U.S. 306, 313, 70 S. Ct. 652, 94 L. Ed. 865 (1950) (“ ‘[m]any controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case’ ”). If our constitution requires a meaningful hearing before a nonpossessory hen can be placed on real estate; Roundhouse Construction Corp. v. Telesco Masons Supplies Co., 170 Conn. 155, 365 A.2d 393, cert. denied, 429 U.S. 889, 97 S. Ct. 246, 50 L. Ed. 2d 172 (1976); then such a hearing is certainly required before an injured employee can be stripped of the temporary benefits that he and his family need in order to survive.

Although the plaintiff received an initial hearing prior to the IME in the present case, this hearing was not meaningful. At the time of the initial hearing, the commissioner announced that he would not be able to determine whether the plaintiff was entitled to continue receiving temporary benefits until after he had reviewed the results of the IME (which would not be conducted until late the following month). Because it was therefore impossible for the plaintiff to address an issue at the initial hearing that the commissioner clearly deemed dispositive, that initial hearing was neither sufficient nor meaningful. Basic considerations of fairness compel the conclusion that, before he stripped the plaintiff of his temporary benefits, the commissioner should have afforded the plaintiff an opportunity to address the results of the IME.

The meaninglessness of the initial hearing is underscored by the fact that — once the plaintiff was permitted to present arguments concerning the IME — the commissioner reinstated the plaintiffs temporary benefits. Once the plaintiff finally received a meaningful hearing, it was immediately apparent that he had been wrongly deprived of his temporary benefits. Unfortunately, this did not happen until long after the ex parte termination of the plaintiffs temporary benefits.

Decided July 21, 1999

Stewart M. Casper, Victoria de Toledo and Gwendolyn Field Noto, in support of the petition.

Jason M. Dodge, in opposition.

Although the review board was technically accurate to observe that a claimant who does not prevail at an informal pre-examination hearing may ultimately prevail at a subsequent post-examination formal hearing, this is akin to saying that a beating is harmless because the bruises will eventually heal. To make the same point without metaphor, the review board failed to account for the grave consequences associated with the deprivation of temporary benefits between the pre-examination hearing and the ultimate reinstatement of benefits many months or even years later. Equally important, the review board’s observation overlooks the fundamental principle that no citizen may be deprived of property without first being afforded a meaningful hearing conducted at a meaningful time.

For these reasons, I would grant the plaintiffs petition for certification. Accordingly, I dissent.

       General Statutes § 31-275 et seq.

        Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 31 S. Ct. 279, 55 L. Ed. 310 (1911).

       See the text of this dissenting opinion.

       More fully, General Statutes § 31-296 provides in pertinent part: “Voluntary agreements. If an employer and an injured employee, or in case of fatal injury his legal representative or dependent, at a date not earlier than the expiration of the waiting period, reach an agreement in regard to compensation, such agreement shall be submitted in writing to the commissioner by the employer with a statement of the time, place and nature of the injury upon which it is based; and, if such commissioner finds such agreement to conform to the provisions of this chapter in every regard, he shall so approve it. A copy of the agreement, with a statement of the commissioner’s approval thereof, shall be delivered to each of the parties and thereafter it shall be as binding upon both parties as an award by the commissioner. The commissioner’s statement of approval shall also inform the employee or his dependent, as the case may be, of any rights the individual may have to an annual cost-of-living adjustment or to participate in a rehabilitation program under the provisions of this chapter. He shall retain the original agreement, with his approval thereof, in his office and, if an application is made to the superior court for an execution, he shall, upon the request of said court, file in the court a certified copy of the agreement and his statement of approval thereof. Before discontinuing or reducing payment on account of total or partial incapacity under any such agreement, the employer, if it is claimed by or on behalf of the injured person that his incapacity still continues, shall notify the commissioner and the employee, by certified mail, of the proposed discontinuance or reduction of such payments, with the date of such proposed discontinuance or reduction and the reason therefor, and, such discontinuance or reduction shall not become effective unless specifically approved in writing by the commissioner. The employee may request a hearing on any such proposed discontinuance or reduction within ten days of receipt of such notice. Any such request for a hearing shall be given priority over requests for hearings on other matters. The commissioner shall not approve any such discontinuance or reduction prior to the expiration of the period for requesting a hearing or the completion of such hearing, whichever is later. In any case where the commissioner finds that an employer has discontinued or reduced any payments made in accordance with this section without the approval of the commissioner, such employer shall be required to pay to the employee the total amount of all payments so discontinued or the total amount by which such payments were reduced, as the case may be, and shall be required to pay interest to the employee, at a rate of one and one-quarter per cent per month or portion thereof, on any payments so discontinued or on the total amount by which such payments were reduced, as the case may be, plus reasonable attorney’s fees incurred by the employee in relation to such discontinuance or reduction. . . .
      “The employee may request a hearing by the compensation commissioner on the discontinuance or reduction set forth in this notice within ten days of receipt of this notice.”

       This hearing occurred approximately one year after the plaintiff was deprived of his temporary benefits.

       More fully, the review board explained that “the term ‘hearing’ as used in § 31-296 . . . mean[s] a single emergency informal hearing that should be held as soon as possible after the claimant has objected to the [f]orm 36. . . . The commissioner should render his or her decision at the hearing or shortly thereafter by providing a copy of the ruling to each party . . . .” (Citations omitted.)


text:
    STATE OF CONNECTICUT v. TERRANCE STEVENSON
    Decided July 21, 1999

      Pamelas. Nagy, assistant public defender, in support of the petition.

      Carolyn K. Longstreth, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 53 Conn. App. 551 (AC 18159), is denied.


text:
    STATE OF CONNECTICUT v. JOHN HENAO
    Decided July 21, 1999

      William F. Dow III and Alinor C. Sterling, in support of the petition.

      Timothy J. Shugrue, senior assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court (AC 19361) is denied.

BERDON, J.,

dissenting. I would grant certification on the following: Did the Appellate Court correctly grant the state’s motion to dismiss, when the defendant constitutionally and statutorily guaranteed right to a probable cause hearing will be irremediably lost if defendant is tried without such a hearing?


author: KATZ, J.,

text:
    DONALD UTZ v. COMMISSIONER OF CORRECTION
    Decided September 9, 1999

      David B. Rozwaski, special public defender, in support of the petition.

      James M. Ralls, assistant state’s attorney, in opposition.
   The petitioner Donald Utz’s petition for certification for appeal from the Appellate Court, 53 Conn. App. 670 (AC 16889), is denied.

KATZ, J.,

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


text:
    STATE OF CONNECTICUT v. RICKY LEE BARNETT
   The defendant’s petition for certification for appeal from the Appellate Court, 53 Conn. App. 581 (AC 16926), is denied.

Decided September 9, 1999

Robert J. McKay, special public defender, in support of the petition.

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

BERDON, J.,

dissenting. I would grant the defendant’s

petition for certification to appeal.


text:
    MIDDLETOWN COMMERCIAL ASSOCIATES LIMITED PARTNERSHIP ET AL. v. CITY OF MIDDLETOWN ET AL.
    Decided September 9, 1999

      Thomas B. Witherington and Wesley W. Horton, in support of the petition.

      Robert M. Barrack and Daniel P. Scapellati, in opposition.
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 53 Conn. App. 432 (AC 17078), is denied.


text:
    STATE OF CONNECTICUT v. CHRISTINE GONDA

      James Moreno, special public defender, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 53 Conn. App. 842 (AC 17400), is denied.

BERDON, J.,

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

Decided September 9, 1999

Richard F. Jacobson, supervisory assistant state’s attorney, in opposition.


text:
    DESMOND WHYTE v. COMMISSIONER OF CORRECTION
    Decided September 9, 1999

      David B. Rozwaski, special public defender, in support of the petition.

      Eileen McCarthy Geel, deputy assistant state’s attorney, in opposition.
   The petitioner Desmond Whyte’s petition for certification for appeal from the Appellate Court, 53 Conn. App. 678 (AC 17497), is denied.


text:
    JUDITH SANDVIG ET AL. v. A. DEBREUIL AND SONS, INC.
    Decided September 9, 1999

      Donald R. Beebe and Susan B. Carr, in support of the petition.
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 53 Conn. App. 466 (AC 17555), is denied.


text:
    CRYSTAL LAKE CLEAN WATER PRESERVATION ASSOCIATION v. TOWN OF ELLINGTON
   The plaintiffs petition for certification for appeal from the Appellate Court, 53 Conn. App. 142 (AC 17577), is denied.

Decided September 9, 1999

James W. Sherman, in support of the petition.

Atherton B. Ryan, in opposition.


text:
    JAMES H. RACZKOWSKI v. ZONING COMMISSION OF THE TOWN OF NAUGATUCK ET AL.
    Decided September 9, 1999

      J. Brendan Sharkey, in support of the petition.

      Robert A. Fuller and Franklin G. Pilicy, in opposition.
   The plaintiffs petition for certification for appeal from the Appellate Court, 53 Conn. App. 636 (AC 17729/ 17737), is denied.


text:
    NEW ENGLAND ROCK SERVICES, INC., ET AL. v. EMPIRE PAVING, INC., ET AL.
    Decided September 9, 1999

      Dominic J. Caciopoli, in support of the petition.

      Thomas J. Farrell, in opposition.
   The defendants’ petition for certification for appeal from the Appellate Court, 53 Conn. App. 771 (AC 17818), is denied.


text:
    STATE OF CONNECTICUT v. JOHN BOWMAN, JR.
   The defendant’s petition for certification for appeal from the Appellate Court, 53 Conn. App. 650 (AC 17922), is denied.

Decided September 9, 1999

Theresa M. Dalton, assistant public defender, in support of the petition.

Robert J. Scheinblum, assistant state’s attorney, in opposition.

BERDON, J.,

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


text:
    STATE OF CONNECTICUT v. JOHN VASQUEZ
    Decided September 9, 1999

      Frank P. Cannatelli, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 53 Conn. App. 661 (AC 17951), is denied.


text:
    STATE OF CONNECTICUT v. LANCE WARGO
   The defendant’s petition for certification for appeal from the Appellate Court, 53 Conn. App. 747 (AC 18126), is granted, limited to the following issues:

“1. Whether the Appellate Court correctly determined that the admission of the medical examiner’s testimony regarding possible causes of death that leave markings only on the skin was harmless error?

“2. Whether the Appellate Court correctly determined that the hearsay testimony of three witnesses regarding statements made to them by the defendant’s children was properly admitted under the excited utterance exception to the hearsay rule?

“3. Whether the Appellate Court correctly determined that witness testimony regarding the decedent’s fearful state of mind regarding the defendant was relevant to prove his motive to murder her and was more probative of his motive than it was prejudicial to the defendant?”

Decided September 9, 1999

The Supreme Court docket number is SC 16186.

Moira L. Buckley, in support of the petition.

Mitchell S. Brody, assistant state’s attorney, in opposition.


text:
    COMMISSIONER OF PUBLIC WORKS v. CITY OF MIDDLETOWN ET AL.
    Decided September 9, 1999

      Trina A. Solecki, city attorney, in support of the petition.

      Paul K. Pemerewski, assistant attorney general, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 53 Conn. App. 438 (AC 18141), is denied.


text:
    STATE OF CONNECTICUT v. MIGDALIA RABELL
    Decided September 9, 1999

      Howard I. Gemeiner, in support of the petition.

      Bruce R. Lockwood, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 53 Conn. App. 402 (AC 18411), is denied.


text:
    ROGER J. STROLLO ET AL. v. MARIE T. IANNANTUONI ET AL.
    Decided September 9, 1999

      Jeffrey J. Holley, in support of the petition.
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 53 Conn. App. 658 (AC 18551), is denied.


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

text:
    STATE OF CONNECTICUT v. NICHOLAS RUSSO
    Decided September 9, 1999

      Hugh F. Keefe, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 53 Conn. App. 781 (AC 19291), is denied.

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:
    STATE OF CONNECTICUT v. HERIBERTO LOPEZ
    The Supreme Court docket number is SC 16183.
   The defendant’s petition for certification for appeal from the Appellate Court, 54 Conn. App. 168 (AC 14042), is granted, limited to the following issue:

“Whether the Appellate Court properly affirmed the trial court’s finding that the alleged third party confession was not sufficiently trustworthy to have been admitted into evidence?”

Decided September 9, 1999

Lauren Weisfeld, assistant public defender, in support of the petition.

Ronald G. Weller, assistant state’s attorney, in opposition.


author: BERDON and NORCOTT, Js.,

text:
    ROBERT C. FLANAGAN v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES ET AL.
    Decided September 9, 1999

      Roger J. Frechette, Matthew E. Frechette and Franz P. Frechette, in support of the petition.

      Susan Quinn Cobb, assistant attorney general, in opposition.

      Charles Krich filed an opposition, which was adopted by Barbara G. Lifton.

   The plaintiffs petition for certification for appeal from the Appellate Court, 54 Conn. App. 89 (AC 17127), is denied.

BERDON and NORCOTT, Js.,

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


author: NORCOTT, J.,

text:
    STATE OF CONNECTICUT v. MICHAEL HARRIS

      Jeremiah Donovan, special public defender, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 54 Conn. App. 18 (AC 17487), is denied.

NORCOTT, J.,

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

Decided September 9, 1999

Denise B. Smoker, assistant state’s attorney, in opposition.


text:
    AURIC ANSWERING SERVICE, INC. v. GLENAYRE ELECTRONICS, INC., ET AL.
    Decided September 9, 1999

      Alexander Scheirer, in support of the petition.
   The plaintiffs petition for certification for appeal from the Appellate Court, 54 Conn. App. 86 (AC 17597), is denied.


text:
    CAROLYN ORMSBY v. EMIL FRANKEL, COMMISSIONER OF TRANSPORTATION
   The defendant’s petition for certification for appeal from the Appellate Court, 54 Conn. App. 98 (AC 17621), is granted, limited to the following issues:

“1. Did the Appellate Court properly conclude that evidence of recurring icing conditions in the year prior to the plaintiffs accident was relevant and admissible to prove constructive notice of the specific ice condition that caused the plaintiffs injury?

“2. Did the Appellate Court properly conclude that evidence of an accident one day prior to the plaintiffs accident, which was caused by a recurring icing condition, was properly admitted to prove constructive notice of the specific ice conditions that caused the plaintiffs injury where the evidence established that the condition did not exist at least most of the period between the two accidents?

Decided September 9, 1999

The Supreme Court docket number is SC 16187.

Louis B. Blumenfeld and William J. Scully, in support of the petition.

Kathryn Calibey, in opposition.

“3. Did the Appellate Court properly conclude that there was sufficient evidence for the jury to conclude that the defendant had constructive notice of the icing condition?”


text:
    INTERLUDE, INC. v. KATHERINE A. SKURAT, TAX COLLECTOR OF THE CITY OF DANBURY, ET AL.
    Decided September 9, 1999
    The Supreme Court docket number is SC 16185.

      Monte E. Frank, Neil R. Marcus and David L. Grogins, in support of the petition.
   The plaintiffs petition for certification for appeal from the Appellate Court, 54 Conn. App. 284 (AC 17634), is granted, limited to the following issue:

“Whether the Appellate Court properly applied General Statutes § 12-119 to the present case?”


text:
    RICHARD FANTASIA v. TONY PANTANA MASON CONTRACTORS, INC., ET AL.
   The plaintiffs petition for certification for appeal from the Appellate Court, 54 Conn. App. 194 (AC 17897), is denied.

Decided September 9, 1999

Charles J. Goddard, in support of the petition.


text:
    KATHERINE HARTE v. COMMISSIONER OF MOTOR VEHICLES
    Decided September 9, 1999

      William B. Wescott, in support of the petition.

      Robert L. Marconi, assistant attorney general, in opposition.
   The plaintiffs petition for certification for appeal from the Appellate Court, 54 Conn. App. 902 (AC 18032), is denied.

KATZ, J.,

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


text:
    LITTLE RIVER, LLC v. RICHARD ZAJICEK ET AL.
    Decided September 9, 1999

      Alexander Scheirer, in support of the petition.

      David F. Sherwood, in opposition.
   The named defendant’s petition for certification for appeal from the Appellate Court, 54 Conn. App. 1 (AC 18057), is denied.


text:
    RELIANCE INSURANCE COMPANY v. GEORGE M. REIDER, JR., INSURANCE COMMISSIONER
   The plaintiffs petition for certification for appeal from the Appellate Court, 54 Conn. App. 77 (AC 18058), is denied.

Decided September 9, 1999

Ralph G. Elliot, in support of the petition.

William J. Prensky, assistant attorney general, in opposition.


text:
    STATE OF CONNECTICUT v. CARLOS DELEON
    Decided September 9, 1999

      Robert S. Reger, special public defender, in support of the petition.

      Christopher T. Godialis, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 54 Conn. App. 278 (AC 18214), is denied.


text:
    E & A DEVELOPMENT, INC. v. PARAGON BUILDERS OF CONNECTICUT, INC.
   The defendant’s petition for certification for appeal from the Appellate Court, 54 Conn. App. 355 (AC 18226), is granted, limited to the following issues:

“1. Did the Appellate Court properly conclude that the defendant’s claim is moot because the funds had already been distributed in accordance with the trial court’s order discharging the mechanic’s lien?

“2. Did the Appellate Court correctly conclude that because the trial court properly discharged the mechanic’s lien, there was no need for the funds to have been held as security?

Decided September 9, 1999

The Supreme Court docket number is SC 16184.

Lawrence P. Weisman, in support of the petition.

“3. Did the Appellate Court properly conclude that the defendant’s claim is moot because we can no longer grant any practical relief?

“4. Did the Appellate Court properly conclude that the decision of the trial court discharging the mechanic’s lien without imposing the seven day stay mandated by General Statutes § 49-35c (b) was correct?”


author: BERDON, J., KATZ, J.,

text:
    WILLIAM T. EVANS v. COMMISSIONER OF CORRECTION
    Decided September 9, 1999

      Lisa J. Steele, special public defender, in support of the petition.

      James A. Kitten, assistant state’s attorney, in opposition.
   The petitioner Wilham T. Evans’ petition for certification for appeal from the Appellate Court, 54 Conn. App. 903 (AC 18236), is denied.

BERDON, J.,

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

KATZ, J.,

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


author: BERDON, J., CALLAHAN, C. J.,

text:
    FLEET NATIONAL BANK, TRUSTEE v. ZONING BOARD OF APPEALS OF THE TOWN OF WINCHESTER
   The substituted plaintiff James H. Gould Ill’s petition for certification for appeal from the Appellate Court, 54 Conn. App. 135 (AC 18262), is denied.

Decided September 9, 1999

H. James Stedronsky, in support of the petition.

Kevin F. Nelligan, in opposition.

BERDON, J.,

dissenting. I would grant the substituted plaintiff James H. Gould Ill’s petition for certification to appeal.

CALLAHAN, C. J.,

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


text:
    NANNETTE D’APICE v. MICHAEL D’APICE
    Decided September 9, 1999

      Laura A. Klein, in support of the petition.

      Marcus G. Organschi, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 54 Conn. App. 901 (AC 18370), is denied.