Kortner v. Martise ( 2014 )

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KORTNER v. MARTISE—SECOND CONCURRENCE
McDONALD, J., concurring and dissenting. The pres-
ent case implicates significant questions about the
rights of a disabled person when his or her disability
requires the appointment of a conservator, as well as
an issue of an evidentiary matter. With respect to the
question of whether the plaintiff, Mary H. Kortner, had
standing to bring an action in her capacity as the conser-
vator of the person of her daughter, Caroline Kendall
Kortner (Kendall), for alleged intentional torts commit-
ted against Kendall, the majority declines to address
that issue in light of the plaintiff’s substitution of herself
in her capacity as the administratrix of Kendall’s estate.
With respect to the question of whether conserved per-
sons lack the capacity to consent to sexual relationships
as a matter of law, the majority conclusively responds
in the negative. In my view, there is a substantial rela-
tionship between these two issues. I would conclude
that the record demonstrates that the trial court’s treat-
ment of Kendall and her participation in this case effec-
tively rendered her a plaintiff in this action, albeit not
technically named as such, to satisfy any potential
standing concerns as to whether she retained the capac-
ity to bring an action in her own name. Therefore, the
impact of the plaintiff’s postjudgment substitution,
which does not in any way address the concerns raised
about the rights of conserved persons, need not be
resolved in this case.1 Consistent with these concerns,
I agree with the majority that a conservatorship may
be relevant evidence of a conserved person’s capacity
to consent to engage in intimate relationships, but is
not proof in and of itself of a lack of capacity. Indeed,
the requirements in the statutory scheme regarding con-
servatorship emphasize ordering the least restrictive
means of intervention necessary while affording con-
served persons the greatest amount of independence
and self-determination; see General Statutes §§ 45a-644
(k), 45a-650 (l) and 45a-656 (b); and acknowledge the
wide range of capabilities that conserved persons
may have.
I dissent from the majority’s opinion, however,
because of its resolution of the evidentiary issue. The
majority concludes that an exhibit that the jury improp-
erly was permitted to consider undermines our confi-
dence in the verdict such that the plaintiff is entitled
to a new trial. It is apparent from the issues in dispute
and the other evidence in the case that this exhibit
could not have had even the most marginal effect on
the jury’s deliberations.
I concur with respect to the result reached in part
I of the majority opinion, I concur in parts III and IV
of the opinion, and I respectfully dissent with respect
to part II of the opinion.
I
As the majority indicates, this court sua sponte raised
a jurisdictional issue and sought both supplemental
briefs from the parties and amicus briefs from groups
that have experience in probate matters affecting the
disabled. Certain facts in the record gave rise to this
question. Specifically, an initial review of the record
revealed that: the plaintiff had been appointed conser-
vator over Kendall’s person but not her estate; the Pro-
bate Court in the District of Stamford had found that
Kendall’s eating disorders, rather than a broader mental
impairment, necessitated the conservatorship; and Ken-
dall evidenced the capacity to testify intelligently and
articulately on her own behalf in her deposition and at
trial. See footnote 14 of this concurring and dissenting
opinion. In addition, the statutory scheme governing
conservatorships only expressly confers authority on
conservators of the estate to bring an action;2 compare
General Statutes § 45a-655 (a), with General Statutes
§ 45a-656; and none of the Probate Court orders issuing
or continuing Kendall’s conservatorship indicated an
intent to confer such authority on the plaintiff and/or
to divest Kendall of her right to bring an action on her
own behalf. This omission seemed particularly signifi-
cant in the orders continuing the conservatorship after
2007, in light of substantive amendments to the conser-
vatorship scheme in Public Acts 2007, No. 07-116, that
would appear to require such findings. See General
Statutes (Rev. to 2007) § 45a-650, as amended by Public
Acts 2007, No. 07-116, § 16.3 These facts clearly distin-
guish this case from others in which conservators have
brought an action on behalf of a conserved person. See,
e.g., Pintavalle v. Valkanos, 216 Conn. 412, 581 A.2d
1050 (1990) (action by conservator of estate to recover
for personal injuries of conserved person); Luster v.
Luster, 128 Conn. App. 259, 17 A.3d 1068 (2011) (cross
complaint for dissolution of marriage by conservators
of estate and person on behalf of conserved person
with dementia, who was identified in complaint as
incompetent).
Therefore, we raised the question of whether the
plaintiff had standing to bring this action in her capacity
as Kendall’s conservator, or whether Kendall retained
the capacity to bring the action on her own behalf
despite the conservatorship and was the sole proper
plaintiff. The majority assumes, arguendo, that Kendall
was the sole proper plaintiff, but concludes that such a
standing defect would have been cured by the plaintiff’s
substitution as the administratrix of Kendall’s estate. I
cannot agree with this approach because it does not
respond to the question of Kendall’s rights in the prose-
cution of this action. As the majority properly concludes
in part III of its opinion, the mere fact that Kendall was
subject to a conservatorship over her person does not
render her, as a legal matter, incompetent to make all
decisions of a personal nature.
In answering the question this court raised, however,
we must be mindful that ‘‘[s]tanding is not a technical
rule intended to keep aggrieved parties out of court; nor
is it a test of substantive rights. Rather it is a practical
concept designed to ensure that courts and parties are
not vexed by suits brought to vindicate nonjusticiable
interests and that judicial decisions which may affect
the rights of others are forged in hot controversy, with
each view fairly and vigorously represented.’’ (Internal
quotation marks omitted.) Canty v. Otto, 304 Conn. 546,
556, 41 A.3d 280 (2012). Close scrutiny of the record
has convinced me that these concerns are satisfied
under the particular circumstances of this case. Kendall
was treated, for all intents and purposes, as a plaintiff
in this case. Kendall was revealed as the real party in
interest in the plaintiff’s complaint by virtue of the fact
that the plaintiff brought the action in her capacity as
Kendall’s conservator, and was identified as such in the
plaintiff’s opening statement to the jury. In numerous
pretrial filings, the defendant, Craig L. Martise, referred
to Kendall as the ‘‘plaintiff’’ in the case. During testi-
mony by the plaintiff’s first witness, the court expressly
ruled that both the plaintiff and Kendall were parties
to the case.4 Kendall testified in support of the claims
alleged, manifesting her agreement with the plaintiff’s
decision to bring an action against the defendant.
Indeed, Kendall had ample opportunity in depositions,
during examination by the defendant’s expert and in
her trial testimony to indicate that the action was con-
trary to her wishes. The totality of the evidence would
suggest, to the contrary, that Kendall ratified the plain-
tiff’s action. To entertain the possibility of dismissing
the action to protect Kendall’s right to bring an action
in her own name under these circumstances would not
only elevate form over substance, but would deprive
Kendall of her day in court in light of her death following
judgment. Cf. General Statutes § 52-123 (‘‘[n]o writ,
pleading, judgment or any kind of proceeding in court
or course of justice shall be abated, suspended, set
aside or reversed for any kind of circumstantial errors,
mistakes or defects, if the person and the cause may
be rightly understood and intended by the court’’).
Therefore, while the Appellate Court addressed a
closely related standing question in Kawecki v. Saas,
132 Conn. App. 644, 649–50, 33 A.3d 778 (2011), I would
leave the resolution of that issue by this court to another
day and conclude that, under these unusual circum-
stances, there is no logical basis to question the trial
court’s jurisdiction over the action.
II
Accordingly, I turn to the basis for the majority’s
conclusion that the plaintiff is entitled to a new trial,
namely, that the submission of plaintiff’s exhibit 75 to
the jury was harmful error. This conclusion is predi-
cated on two determinations: (1) the jury improperly
was permitted to consider exhibit 7 in its deliberations;
part II A of the majority opinion; and (2) the jury actually
considered exhibit 7 in a manner and to an extent that
this court cannot have a fair assurance that the submis-
sion of the exhibit did not affect the verdict. Part II B
of the majority opinion. I agree with the first determina-
tion, although not the reasoning in support thereof. I
cannot concur in the second determination, however,
because any full and fair reading of the evidence and the
parties’ theories of the case conclusively demonstrates
that exhibit 7 would have had no impact on the verdict.
A
I do not take issue with the majority’s conclusion
that an exhibit must be received into evidence in order
for it to be a proper matter for the jury’s consideration.6
Nevertheless, it is impossible to square the facts in this
case with any conclusion other than that the plaintiff
waived her objection to the submission to the jury of
exhibit 7, a letter purportedly written by Kendall to the
‘‘XYZ Housing Authority’’ (housing authority) regarding
a housing authority employee, John Jones. The majority
concludes otherwise only by ignoring the most signifi-
cant aspects of the conduct of the plaintiff’s counsel
and applying the standard for determining whether a
constitutional right, rather than evidentiary error, has
been waived.
As the trial court’s unchallenged findings reflect, the
plaintiff marked exhibit 7 as a full exhibit prior to the
start of trial.7 This action followed the court’s instruc-
tion that the parties should exchange exhibits, that an
exhibit could be marked as ‘‘full’’ only if both parties
had agreed, and that upon such agreement, exhibits
can be marked ‘‘as full exhibits and then we don’t have
to worry about them.’’ The plaintiff’s counsel mani-
fested consent to this instruction. After the close of
evidence and final instructions to the jury, the court
stated to counsel for both parties: ‘‘I’d like counsel to,
please, go through the exhibits to see whether or not
they’re in order to bring to the jury.’’ (Emphasis added.)
The plaintiff’s counsel had marked only ten full exhibits
during the course of the trial, and repeatedly had an
opportunity to review those ten exhibits during the
twenty-eight days between the time they were marked
as full exhibits and the time the case went to the jury. In
fact, as the trial court found, counsel actually reviewed
each exhibit in open court at the conclusion of the
testimony, evidence, final arguments and jury charge
‘‘to confirm they were exhibits to be given to the jury
for deliberations.’’ On one of those four occasions, and
in response to the court’s instruction, the plaintiff’s
counsel reviewed aloud the exhibits sequentially, spe-
cifically noting ‘‘7 is the letter.’’ Once his review was
completed, counsel stated: ‘‘Okay, so the plaintiff’s
exhibits are okay by me.’’
The plaintiff acknowledged, both before the trial
court and this court, that she and her counsel ‘‘must
accept some responsibility for the fact that the
offending exhibit 7 was submitted to the jury in the
first place.’’ Indeed, in oral argument before this court,
the plaintiff’s counsel stated that ‘‘I have to fall on my
own sword. I didn’t see it and it went into the jury.’’
The objective import of the conduct and acknowledg-
ments of the plaintiff’s counsel is that the plaintiff
waived any objection to the submission of this exhibit
to the jury. Indeed, the trial court expressly found that
the plaintiff had done so, a finding that can be overruled
only if clearly erroneous. See Pereira v. State Board of
Education, 304 Conn. 1, 115, 37 A.3d 625 (2012)
(Palmer, J., dissenting). Although the defendant later
conceded to the trial court that the plaintiff ‘‘had offered
this document during a successful argument to the court
to exclude it from the jury’s consideration’’ and there-
fore a reasonable inference arises that the plaintiff’s
counsel had failed to recognize the import of exhibit 7
in connection with the trial court’s favorable ruling on
her motion in limine to exclude questions regarding
Jones,8 this court has never required a knowing and
intelligent waiver of evidentiary error. See State v. Har-
ris, 147 Conn. 589, 598, 164 A.2d 399 (1960) (The defen-
dant could not claim error in the submission of exhibits
to the jury when ‘‘[h]e made no objection at the time,
although his counsel were given full opportunity to
check the exhibits before they were sent to the jury,
in accordance with the standard practice in Connecti-
cut. . . . [T]here was no error by reason of the failure
of the court itself to sort the exhibits and, in the absence
of any request from the defendant, to withhold from
the jury those concerned only with the counts as to
which a verdict in his favor had been directed.’’ [Cita-
tions omitted.]). Indeed, one might go so far as to say
that the plaintiff induced the error of which she now
complains. See State v. Fabricatore, 281 Conn. 469, 482
n.18, 915 A.2d 872 (2007) (induced error arises when
‘‘the party, through conduct, encouraged or prompted
the trial court to make the erroneous ruling’’ [internal
quotation marks omitted]). This court has never held
that the right to waive evidentiary error is personal to
the party such that the party cannot be bound by coun-
sel’s actions. Cf. Monroe v. Monroe, 177 Conn. 173, 181,
413 A.2d 819 (‘‘[i]t is hornbook law that clients generally
are bound by the acts of their attorneys’’), cert. denied,
444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979).
Moreover, I am unaware of any authority that supports
the majority’s view that the defendant shared the obliga-
tion to alert the court to the plaintiff’s error.
Nonetheless, I ultimately agree with the majority that
the jury improperly was permitted to consider exhibit
7 in its deliberations. As the majority correctly notes,
under the proper procedure, the marshal should bring
any question from the jury to the court to be addressed
in open court. See Connecticut Civil Jury Instructions
(4th Ed. 2008) instruction 2.9-3, available at http://
www.jud.ct.gov/JI/civil/part2/2.9-3.htm (last visited
May 21, 2014). Significantly, the defendant conceded
at oral argument before this court that the plaintiff
inadvertently had submitted exhibit 7 to the jury and
that he would have agreed to withdraw the exhibit if
the jury’s question had been brought to the parties’
attention. Under these circumstances, it would have
been an abuse of discretion for the trial court to permit
the jury to consider exhibit 7.
B
Therefore, we must consider whether the submission
of exhibit 7 to the jury was harmful error. I underscore
that, in order to obtain a new trial, it is the plaintiff’s
burden to prove harm, specifically harm sufficient to
give this court a fair assurance that ‘‘the jury’s verdict
was substantially swayed by the error.’’ State v. Sawyer,
279 Conn. 331, 357, 904 A.2d 101 (2006), overruled in
part on other grounds by State v. DeJesus, 288 Conn.
418, 454–55 n.23, 953 A.2d 45 (2008); accord State v.
Payne, 303 Conn. 538, 553, 34 A.3d 370 (2012); State v.
Osimanti, 299 Conn. 1, 18–19, 6 A.3d 790 (2010). To
make this determination, ‘‘our analysis includes a
review of: (1) the relationship of the improper evidence
to the central issues in the case, particularly as high-
lighted by the parties’ summations; (2) whether the trial
court took any measures, such as corrective instruc-
tions, that might mitigate the effect of the evidentiary
impropriety; and (3) whether the improperly admitted
evidence is merely cumulative of other validly admitted
testimony. . . . The overriding question is whether the
trial court’s improper ruling affected the jury’s percep-
tion of the remaining evidence.’’ (Citations omitted;
internal quotation marks omitted.) Sullivan v. Metro-
North Commuter Railroad Co., 292 Conn. 150, 162–63,
971 A.2d 676 (2009). A faithful application of these con-
siderations clearly and persuasively demonstrates that
the plaintiff has not met this burden.
At the outset, I note that I generally agree with the
majority’s characterization of exhibit 7, in that,
accepting it at face value for what it purports to be, it
reflects Kendall’s complaint in letter form to the housing
authority regarding certain unwanted conduct by a
housing authority employee and her statement to that
employee expressing her lack of consent to such con-
duct.9 The latter is reflected in the phrase ‘‘not leaving
when I ask him to leave . . . .’’ The majority further
concludes, however, that the submission of exhibit 7
for the jury’s consideration requires a new trial because:
(1) this information related to a central issue in the case,
namely, whether Kendall had the capacity to consent to
the acts alleged; (2) the jury could have found that
exhibit 7 itself demonstrated that Kendall had the ability
to consent; (3) exhibit 7 was significant evidence of
this fact because it was the sole documentary evidence
written by Kendall during the period in question; and
(4) the jurors’ affidavits and questions to the court clerk
and court demonstrate that exhibit 7 influenced the
jury’s decision. I cannot agree with any of these asser-
tions, because they are clearly and directly undermined
by the evidence and the theories of the case evidenced
in closing argument. Perhaps more important, these
assertions fail to explain how or why exhibit 7 would
have influenced the jury’s perception of the remaining
evidence that was considerably more probative of the
matters in dispute.
As the majority correctly notes, the principal dispute
and the focus of most of the evidence and argument
in this case was whether Kendall had the capacity to
consent to the ‘‘sadomasochistic’’ acts alleged. Indeed,
there was little dispute that most of the acts alleged
had occurred. The jury in fact found that all but two
of the acts alleged, those further alleging or suggesting
the infliction of serious physical pain, had occurred.10
In closing argument, the plaintiff focused the jury’s
attention on the question of Kendall’s capacity to con-
sent in light of her history and psychological problems,
making only a few fleeting suggestions that Kendall had
‘‘stopped consenting’’ in the later stage of her relation-
ship with the defendant. In fact, there was substantial
evidence that, although Kendall felt uncomfortable
about participating in some of the conduct initiated by
the defendant, there was only one situation alleged in
which she actually communicated to the defendant that
she did not want to engage in the conduct.11
The jury’s resolution of this central question neces-
sarily turned on the standard by which it gauged Ken-
dall’s capacity to consent. Both parties presented expert
testimony on this matter—George Chapar, Kendall’s
treating psychologist, testified for the plaintiff, and
Reena Kapoor, a forensic psychiatrist, testified for the
defendant. The experts generally agreed as to Kendall’s
history, medical condition, and psychological diagno-
ses,12 but reached different conclusions as to Kendall’s
capacity to consent to sexual relations largely because
of their application of different standards for assessing
capacity. A fundamental difference in those standards
was that Chapar opined that capacity required a person
to actually make sound choices to protect himself/her-
self physically and emotionally, whereas Kapoor opined
that capacity required a person to have the ability to
consider the risks involved, not to actually make the
best or safest choices. Consistent with their different
standards, the parties pointed to different evidence as
probative of Kendall’s capacity. In concluding that Ken-
dall had failed to make such sound choices, Chapar
pointed to Kendall’s dangerous behavior in connection
with her eating disorders. The plaintiff’s counsel went
further and argued to the jury that the fact that Kendall
was under a conservatorship in and of itself demon-
strated that she lacked the capacity to consent. In con-
cluding that Kendall had the requisite capacity because
of her ability to consider risk, Kapoor pointed to, inter
alia, Kendall’s incremental development of her relation-
ship with the defendant, in that she had agreed to meet
the defendant in person only after an extended period
of online communication and had agreed to engage in
sexual relations only after she gained a sense of trust
in him as their friendship evolved. Kapoor opined that
Kendall’s conservatorship demonstrated that she
lacked the capacity to make decisions about her medi-
cal care, but not necessarily her competence to consent
to sexual relations. Accordingly, a paramount factor in
the jury’s determination as to whether Kendall had the
capacity to consent would have been which expert the
jury credited or whether the conservatorship was dis-
positive. Exhibit 7 had no bearing on the credibility
of these witnesses, the standards they articulated, the
parameters for conservatorship or whether some other
standard for assessing capacity should apply.
Not only is exhibit 7 irrelevant to these questions, it
is irrelevant to the question of whether Kendall would
have consented, or was capable of consenting, to
engage in the acts alleged with the defendant.13 As pre-
viously indicated, the evidence demonstrated that Ken-
dall’s relationship with the defendant developed slowly
over a period of several years, from friendship to one
that she viewed, at the time, as romantic. They shared
intimate details about their lives; they took day trips
and an overnight trip together. Kendall indicated to
both the plaintiff and Kapoor that she sometimes had
engaged in acts with the defendant that she did not feel
comfortable about because she did not want him to
terminate the relationship. By contrast, nothing in
exhibit 7 suggests any personal relationship between
Kendall and the housing authority employee who is the
subject of the complaint. Therefore, whether Kendall
told a person with whom she had no personal relation-
ship to leave her apartment when she felt uncomfort-
able by his presence or actions would have little if any
bearing on whether she would have consented, or was
capable of consenting, to the acts alleged with someone
with whom she had developed an intimate relationship.
Indeed, exhibit 7 lends some support to the plaintiff’s
case and is consistent with Kendall’s own testimony.
Kendall’s testimony, like the contents of exhibit 7,
reflected a person who was bright and articulate.14
Exhibit 7 reflects that it took two years of unwanted
and egregious overtures before Kendall reported the
conduct, which supports the plaintiff’s view that Ken-
dall lacked the skills to protect herself from sexual
predators. Exhibit 7 does not indicate that Kendall
responded directly to Jones when he engaged in
‘‘unwanted and inappropriate sexual behavior,’’ but
rather that, in connection with certain ‘‘threatening
behavior,’’ he did not leave her apartment when she
asked him to. It is unclear from exhibit 7 whether Ken-
dall made this rather passive response once or on more
than one occasion when the threatening conduct
occurred. Similarly, in the present case, Kendall testi-
fied that only in some circumstances did she express
her lack of consent to the defendant’s overtures. See
footnote 11 of this concurring and dissenting opinion.
In addition, Kendall’s threat in exhibit 7 to take legal
action after two years of unwanted advances is consis-
tent with the action brought in the present case.
Finally, there is no evidence that remotely would
suggest that the jury did consider, or would have consid-
ered, exhibit 7 in its deliberations. Obviously, exhibit
7 was not even mentioned, let alone highlighted, in
closing argument. The affidavits and questions of cer-
tain jurors only demonstrate that the jurors were ‘‘con-
fused’’ by the submission of exhibit 7 because there
was no mention of it during trial. The jurors not only
had not been provided with any context for the letter
in exhibit 7, such context was not self-evident. Indeed,
at oral argument before this court, the plaintiff’s counsel
represented that, in his meeting with the jurors after the
verdict had been entered, they indicated about exhibit 7
that ‘‘they didn’t understand it, they didn’t know what
it was or why it was before them, and they used the
word context—‘we had no context for it.’ ’’ In light of
the substantial evidence that was before the jury that
was directly relevant to the issues in the case, it seems
most likely that the jury would have focused on that
evidence and simply disregarded a document lacking
any context. Moreover, even if it did consider exhibit 7,
in light of the substantial probative evidence previously
discussed, the marginal (at best) relevance of exhibit
7 to the issues at hand, and the consistency between
exhibit 7 and the plaintiff’s own case, exhibit 7 could not
possibly have ‘‘substantially swayed’’ the jury’s verdict.
See State v. Sawyer, supra, 279 Conn. 357. Indeed, I
would go so far as to conclude that the plaintiff has
not demonstrated that exhibit 7 would have had any
impact on the verdict. Therefore, the trial court properly
denied the plaintiff’s motion to set aside the verdict
and for a new trial.
I respectfully concur and dissent.
1
I would point out, however, that, if the substitution was properly granted,
it is only because of the filing of the plaintiff’s motion to set aside the verdict
and for a new trial. That motion, which was filed after the trial court rendered
judgment, was pending at the time she filed the motion for substitution.
Therefore, the motion to set aside the verdict effectively suspended the
judgment. See State v. Asherman, 180 Conn. 141, 144, 429 A.2d 810 (1980)
(‘‘a motion for a new trial is filed in a case then in progress or pending and
is merely a gradation in that case leading to a final judgment’’); cf. Nelson
v. Dettmer, 305 Conn. 654, 681, 46 A.3d 916 (2012) (‘‘the motion to reargue,
if granted, would have rendered the summary judgment ineffective, thereby
redetermining the rights and obligations of the parties’’). In the absence of
such a pending dispositive motion, the plaintiff could not have cured a
jurisdictionally defective judgment after the fact. See Serrani v. Board of
Ethics, 225 Conn. 305, 309, 622 A.2d 1009 (1993) (‘‘[t]he lack of subject matter
jurisdiction to render a final judgment cannot be cured retrospectively’’); see
also Investment Associates v. Summit Associates, Inc., 309 Conn. 840,
853, 74 A.3d 1192 (2013) (judgment rendered without jurisdiction is ‘‘void
ab initio’’).
2
This court has recognized, however, that ‘‘[a] conservator has only such
powers as are expressly or impliedly given to him by statute.’’ (Emphasis
added; internal quotation marks omitted.) Gross v. Rell, 304 Conn. 234, 291,
40 A.3d 240 (2012) (McLachlan, J., dissenting).
3
General Statutes (Rev. to 2007) § 45a-650, as amended by Public Acts
2007, No. 07-116, § 16, provides in relevant part: ‘‘(k) A conserved person shall
retain all rights and authority not expressly assigned to the conservator.
‘‘(l) The court shall assign to a conservator appointed under this section
only the duties and authority that are the least restrictive means of interven-
tion necessary to meet the needs of the conserved person. The court shall
find by clear and convincing evidence that such duties and authority restrict
the decision-making authority of the conserved person only to the extent
necessary to provide for the personal needs or property management of the
conserved person. Such personal needs and property management shall be
provided in a manner appropriate to the conserved person. The court shall
make a finding of the clear and convincing evidence that supports the
need for each duty and authority assigned to the conservator.
‘‘(m) Nothing in this chapter shall impair, limit or diminish a conserved
person’s right to retain an attorney to represent such person or to seek
redress of grievances in any court or administrative agency, including pro-
ceedings in the nature of habeas corpus arising out of any limitations
imposed on the conserved person by court action taken under this chapter,
chapter 319i, chapter 319j or section 45a-242. In any other proceeding in
which the conservator has retained counsel for the conserved person, the
conserved person may request the Court of Probate to direct the conservator
to substitute an attorney chosen by the conserved person.’’ (Emphasis
added.)
Even before the enactment of these provisions in 2007, there were some
similar limitations. See General Statutes (Rev. to 1997) § 17a-541 (‘‘No patient
hospitalized or treated in any public or private facility for the treatment
of persons with psychiatric disabilities shall be deprived of any personal,
property or civil rights, including the right to vote, hold or convey property,
and contract, except in accordance with due process of law, and unless
such patient has been declared incapable pursuant to sections 45a-644 to
45a-662, inclusive. Any finding of incapability shall specifically state which
civil or personal rights the patient is incapable of exercising.’’ [Empha-
sis added.]).
4
The following exchange occurred on the first day of trial during direct
examination of the plaintiff by her counsel in response to objections by the
defendant’s counsel:
‘‘[The Plaintiff’s Counsel]: Did Kendall ever tell you what happened to
her that fall at the University of North Carolina?
‘‘[The Plaintiff]: She has since.
‘‘[The Defendant’s Counsel]: Objection.
‘‘The Court: Overruled.
‘‘[The Plaintiff’s Counsel]: Kendall ever tell you what happened to her?
‘‘[The Plaintiff]: Yes, but—
‘‘[The Plaintiff’s Counsel]: What did she tell you?
‘‘[The Defendant’s Counsel]: Objection.
‘‘The Court: Basis?
‘‘[The Defendant’s Counsel]: Hearsay.
‘‘The Court: She’s—isn’t she the conservator? Overruled. You can answer.’’
The following exchange between the plaintiff’s counsel and the defen-
dant’s counsel occurred one day later when direct examination of the plain-
tiff continued:
‘‘[The Plaintiff’s Counsel]: Right. Okay. And in that conversation, what
did [Kendall] tell you about washing herself with Chlorox?
‘‘[The Defendant’s Counsel]: Objection.
‘‘The Court: Basis.
‘‘[The Defendant’s Counsel]: Hearsay.
‘‘The Court: She’s a party, isn’t she? Why is it hearsay?
‘‘[The Defendant’s Counsel]: I don’t know if she’s a party. This is the party
on the witness stand.
‘‘The Court: Okay. She’s a party to this case. I overrule the objection.
‘‘[The Defendant’s Counsel]: Are they both parties, Your Honor?
‘‘The Court: Well, she’s a conservator and I would assume that . . . Ken-
dall—and I think they are both parties, if I looked at the—
‘‘[The Defendant’s Counsel]: Well, the declarant. What I’m asking is, is
the declarant a party? I don’t know the answer. I think the answer is in
the negative.
‘‘The Court: I’m going to allow it. I would—I’m going to allow it. I’m going
to say it’s not hearsay. She may testify. Go right ahead.’’
The defendant made no further objections and did not raise this issue
on appeal.
5
See part II of the majority opinion for the text of exhibit 7.
6
I am not persuaded, however, that either Practice Book § 5-7 or the trial
management order cited by the majority resolves the question of whether
a document marked as a full exhibit by agreement of both parties requires
some further action in order to allow it to be submitted for the jury’s
consideration. Moreover, it is not clear from the majority’s opinion what
further action is required in order to allow that consideration. In the absence
of any restrictions or specified procedures in our rules of practice, I would
conclude that, when the parties have agreed to mark an exhibit in full,
barring evidence to the contrary, such an action manifests a waiver of any
obstacles to the introduction of that exhibit into evidence, including its use,
relevance, foundation and authenticity. Cf. Merrill Lynch, Pierce, Fenner &
Smith, Inc. v. Cole, 189 Conn. 518, 525, 457 A.2d 656 (1983) (‘‘[a]n exhibit
offered and received as a full exhibit is in the case for all purposes’’).
Moreover, I would conclude that it is sufficient for a party simply to state
in the presence of the trier of fact (court or jury) that the exhibit is a full
exhibit by agreement of the parties, and that there is no further requirement
that the proponent of the exhibit must introduce it through a witness. A
contrary rule would undermine much of the economies gained in premarking
exhibits by agreement. Of course, either party would be free to use the
exhibit for any purpose and, even if the proffering party declined to introduce
the exhibit through a witness, the opposing party would be free to use it
in the course of its examination of witnesses.
7
Indeed, the plaintiff first demonstrated her intent to introduce exhibit
7 as a plaintiff’s exhibit on November 5, 2009, when she listed it as one of
her exhibits in her pretrial memorandum. More than two weeks later, on
November 20, 2009, the plaintiff marked exhibit 7 as a full exhibit.
8
Although prior to trial, the trial court reserved decision on the motion
in limine as to questions regarding Jones, it effectively granted the motion
as to that matter subsequently during trial when it denied the defendant’s
request to examine witnesses on this subject for various reasons, including
relevance, foundation and prejudice.
9
As the majority notes, the plaintiff asserts on appeal that the defendant
authored the letter contained in exhibit 7. It is possible, however, that jurors
reached this conclusion on their own in light of the facts that the letter is
typed and unsigned, the addressee, ‘‘XYZ Housing Authority,’’ looks like the
name of a fictitious entity, Kendall and the plaintiff referred in their testimony
to the apartment complex where Kendall lived under a different name—
Stamford Green, and the defendant was forced to concede in his testimony
that he had fabricated an exhibit that his attorney earlier proffered on behalf
of the defendant’s case as well as certain testimony. Moreover, the jurors’
affidavits specifically characterized the letter in exhibit 7 as one that
‘‘appeared to be from Kendall Kortner’’ or ‘‘appeared to be written by Kendall
Kortner.’’ Nonetheless, I would not rely on such speculation in determining
whether the jury could have relied on this evidence in reaching its verdict.
10
The interrogatories submitted to the jury asked whether the defendant
had: (a) ‘‘slapped [Kendall’s] buttocks with both his hand and a leather belt
during intercourse’’; (b) ‘‘dressed Kendall in a crotchless black body stocking
and a cat’s mask’’; (c) ‘‘repeatedly showed Kendall pornographic pictures
and videos’’; (d) ‘‘pinched and twisted Kendall’s nipples and applied ‘nipple
clamps’ and other devices which caused her severe pain and discomfort’’;
(e) ‘‘tied and gagged Kendall with a scarf’’; (f) ‘‘dripped burning wax on
Kendall’s breasts and other parts of her body’’; and (g) ‘‘placed a dog collar
on Kendall’s neck and dragged her around on the floor by a leash.’’ (Emphasis
added.) The jury found that the defendant had committed all of these acts
except (d) and (g).
11
Kendall testified that sometimes she had told the defendant ‘‘no’’ or
used the safe word that he had given her shortly after they commenced the
sexual relationship to indicate that she did not want to engage in the conduct.
She could not recall how often she expressed this or whether he had listened
to her. There was evidence that Kendall reported to others that the defendant
had stopped the activity when requested, or stopped on all but one occasion.
Timothy Dolan, a Stamford police officer, interviewed Kendall two months
after Kendall revealed to the plaintiff the full nature of her relationship with
the defendant. Dolan testified that Kendall had told him that she had not
resisted the defendant’s advances except on one occasion, when he put a
dog collar and leash on her and tried to get her to walk on all fours, but
when she could not do that he dragged her on the floor. Dolan further
testified that Kendall had said that the defendant told her to tell him if he
did anything that bothered her and that he would stop. The defendant’s
expert, Reena Kapoor, who interviewed Kendall for seven hours over a
period of two days, testified that Kendall had indicated that there were
times that she had asked the defendant to stop or said no, and that the
defendant stopped. Kapoor further stated that Kendall sometimes felt that
she could not say no because she was afraid that, if she said no, the defendant
would leave her. The defendant testified that the only time Kendall had
objected to their interactions was when he had put the dog collar and leash
on her and proposed to walk her like a dog. He further testified that they
did not continue and that the collar was removed.
12
The experts did disagree, however, whether Kendall’s history and condi-
tions resulted in developmental arrest of her emotional and psychological
capacity at a preadolescent stage as to every aspect of her life or only as
to certain aspects of her life.
13
Consent and capacity to consent are distinct issues. Thus, evidence that
a person has acquiesced to certain conduct might demonstrate consent but
not necessarily capacity to consent. Indeed, that is the plaintiff’s theory in
the present case. Conversely, however, evidence that a person has expressed
that he or she does not consent to engage in certain conduct would be
relevant evidence of that person’s capacity to consent.
14
For example, Kendall testified: ‘‘I have no faith in anything—I mean as
far as God, I mean, you know whether it be God or Allah or the teachings
of Confucius. I mean everybody wants to know that we all agree that we’re
physical beings and we have minds, but what is our essence? What survives
our bodily death? And I don’t know and I don’t have any faith. I can’t make
sense of anything. I just—never trust anybody.’’