State v. Ralph B. ( 2016 )

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STATE OF CONNECTICUT v. RALPH B.*
(AC 35654)
Sheldon, Keller and Schaller, Js.
Argued September 21, 2015—officially released January 26, 2016
(Appeal from Superior Court, judicial district of
Tolland, Solomon, J. [motion to modify bond
conditions; request to attend pretrial]; Kwak, J. [motion
to attend pretrial; judgment].)
Jeffrey C. Kestenband, for the appellant (defendant).
Brett R. Aiello, special deputy assistant state’s attor-
ney, with whom, on the brief, were Matthew C. Gedan-
sky, state’s attorney, and Nicole I. Christie, assistant
state’s attorney, for the appellee (state).
Opinion
SCHALLER, J. The defendant, Ralph B., appeals from
the judgment of conviction, rendered after a jury trial,
of attempt to commit assault in the first degree in viola-
tion of General Statutes §§ 53a-49 and 53a-59 (a) (1),
unlawful restraint in the first degree in violation of
General Statutes § 53a-95 (a), strangulation in the sec-
ond degree in violation of General Statutes § 53a-64bb
(a), and risk of injury to a child in violation of General
Statutes § 53-21 (a) (1). On appeal, the defendant claims:
(1) his due process right to a fair trial was violated
because he was not permitted to attend three pretrial
hearings, which proceeded in his absence over his
objection; (2) the trial court improperly permitted the
state to introduce extrinsic evidence on a collateral
matter; (3) the conviction of attempt to commit assault
in the first degree and unlawful restraint in the first
degree should be vacated because § 53a-64bb (b) does
not permit someone who is convicted of strangulation
in the second degree also to be convicted of assault
and unlawful restraint; and (4) the trial court improperly
denied him his right to allocution and to present infor-
mation in mitigation of sentencing. We agree with the
defendant regarding his first claim, and, therefore,
reverse the judgment of the trial court.
The jury reasonably could have found the following
facts. On January 4, 2012, the defendant was married
to L.B. They have one child, I.B., who was three years
old on January 4, 2012. On that date, following an argu-
ment regarding a possible divorce, the defendant left
the home in anger and L.B. put I.B. to bed. She then
went to sleep in I.B.’s room, in a bed across from his
bed. The defendant returned home and entered I.B.’s
room. The defendant turned on a closet light and woke
L.B. The defendant then attempted to strangle L.B. with
a cord, in the process waking up I.B. L.B. attempted to
call 911, but the defendant threw her cell phone into
the hallway. They continued to struggle and L.B.
pleaded with the defendant to stop, asking him why he
was upset. He responded that he had sent her several
text messages to which she had not replied. The defen-
dant permitted her to get her cell phone but, as she
attempted to show him that she had not received any
messages, he came at her with the cord a second time.
She dialed 911 and dropped the cell phone on the floor.
The defendant continued to choke her; she fought back
and, after hearing I.B. call out to her, was able to wrest
the cord from the defendant. She took the cord and went
to check on I.B. The defendant then again attempted to
strangle her with his hands. L.B. escaped and attempted
to calm the defendant. When she heard cars outside,
she ran downstairs with the cord in her hands. Once
she was outside, she saw the police. She threw the cord
to the first police officer she saw and told the police
that the defendant had tried to kill her with it. The
police arrested the defendant, took a statement from
L.B., and photographed her neck and face. She then
went to a hospital. The defendant was arrested and
charged with strangulation in the first degree, unlawful
restraint in the first degree, attempt to commit assault
in the first degree, interfering with an emergency call,
strangulation in the second degree, and risk of injury
to a child.
Following the trial, the jury found the defendant
guilty of attempt to commit assault in the first degree,
unlawful restraint in the first degree, strangulation in
the second degree, and risk of injury to a child. It acquit-
ted him of strangulation in the first degree and interfer-
ing with an emergency call. The court, Kwak, J.,
sentenced the defendant to twenty years incarceration
followed by five years of special parole. This appeal
followed.
The defendant claims that his due process rights were
violated when the court did not permit him to attend
three hearings on pretrial motions. The defendant
argues that these hearings were critical stages of the
proceedings and that he was entitled to be present. He
argues that his presence bore a reasonably substantial
relationship to the fullness of his opportunity to defend
against the charges and that the hearings were not fair
and just in his absence. The state responds that the
defendant did not make an adequate showing that his
absence from the hearings adversely affected his oppor-
tunity to defend against the charges. We first set forth
our standard of review. ‘‘Whether the defendant’s con-
stitutional rights were violated by his exclusion from
[a] hearing presents a question of law and, accordingly,
we exercise plenary review.’’ State v. Dixon, 318 Conn.
495, 511, 122 A.3d 542 (2015).
The following additional facts are necessary for our
consideration of the defendant’s claims. On January 4,
2013, the court, Solomon, J., held a hearing regarding
the conditions of the defendant’s bond. The defendant
was not incarcerated; he was on house arrest with a
global positioning system (GPS) monitor, which a pro-
bation officer monitored. At the conclusion of the hear-
ing before Judge Solomon, the defendant requested a
hearing on his motions regarding a bill of particulars,
a request for essential facts, and a motion to dismiss
regarding discovery issues. The court confirmed that,
as these were discovery issues, they would take only
a few minutes. The court then scheduled a hearing for
January 7, 2013, before the trial court, Kwak, J. The
defendant’s attorney asked if the defendant could
attend. The court ruled that the defendant did not need
to be present, as the motions involved only legal issues
pertaining to discovery, and denied the request.1
On January 7, 2013, the defendant’s attorney filed a
‘‘motion for client to be present in court for all hearings
and proceedings in connection with this case.’’ The
defendant asserted that there were thirteen outstanding
motions, including, in addition to those discussed
before Judge Solomon, a motion in limine to exclude
prior convictions, a motion to require notice of
uncharged misconduct evidence, and a motion for in
camera review of records of the complaining witness,
L.B.2 The motion for the defendant to be present cited
the applicable law, and claimed that some of the
motions could require the defendant’s testimony and
the testimony of the defendant’s expert witness. The
defendant’s attorney further claimed that communica-
tion between a client and counsel during the hearing
was key to effective assistance of counsel and a working
attorney-client relationship. Finally, the defendant’s
attorney asserted that the interests of transparency in
the judicial process required the defendant to be present
in the courtroom when thirteen substantive motions
were decided.
In the hearing on January 7, 2013, before Judge Kwak,
the defendant’s attorney renewed the motion to permit
the defendant to be present. The court asked whether
Judge Solomon initially had denied the request. The
defendant’s attorney answered that Judge Solomon had
denied the request, but without the benefit of the legal
authority that the defendant provided in the memoran-
dum.3 The defendant’s attorney emphasized that the
pending motions were substantive and could require
the defendant to testify. The state responded that it
could not disagree with the defendant’s presence at the
critical portions of some of the motions, and suggested
that the parties select which motions they could address
that day and which would require a later hearing. The
court ruled that it would need to look at the file before
deciding whether to permit the defendant to be present,
but that there were some matters it could consider
without the defendant being present. Following discus-
sion of the status of various discovery requests, the
court granted the defendant’s motion for a bill of partic-
ulars, ordered the state to provide a witness list, denied
the defendant’s motion to dismiss, denied the defen-
dant’s motion for a continuance, declined to grant the
defendant’s motion to require notice of any uncharged
misconduct evidence because the state voluntarily
agreed to provide notice, and denied the defendant’s
request to make an opening statement.
The defendant’s attorney then argued that the motion
for an in camera review of records of L.B. would require
the defendant’s presence and possible testimony. The
defendant’s attorney asserted that there were other
motions requiring the defendant’s presence. The state
also requested that the defendant’s attorney confirm
that he would not be relying on an alibi defense and
did not intend to rely upon the defenses of mental
disease or defect or extreme emotional disturbance.
The court scheduled a subsequent hearing for January
15, 2013.
On January 9, 2013, the trial court denied the defen-
dant’s January 6, 2013 motion to be present. The court
did not provide any reasons for its ruling at that time.4
On January 15, 2013, the court held the scheduled
hearing in the absence of the defendant.5 The court
first addressed the defendant’s motion for an in camera
review of the records of L.B. In support of this motion,
the defendant’s attorney elicited the testimony of Erin
Nicole Haataja, a longtime acquaintance of the defen-
dant and L.B. Haataja testified that in the past, L.B. had
claimed that the defendant had scratched her with a
screwdriver when in fact Haataja had seen L.B.
scratching herself. Haataja also testified that, on one
occasion, L.B. had dropped a cooler onto herself, then
claimed the defendant had pushed the cooler onto her.
The defendant’s attorney asserted that Haataja’s testi-
mony showed that there was a reasonable possibility
that L.B. had a mental condition affecting her ability
to comprehend, know, or correctly relate the truth,
pursuant to State v. Blake, 106 Conn. App. 345, 352, 942
A.2d 496, cert. denied, 287 Conn. 922, 951 A.2d 573
(2008),6 and requested that the court conduct an in
camera review of L.B.’s mental health records in order
to determine whether they contained any potential
impeachment material. The court denied the defen-
dant’s motion.
The court declined to rule on the defendant’s motion
to suppress until the time of trial, granted the defen-
dant’s motion to reserve the right to file supplemental
motions, and ruled on the defendant’s motion in limine
to exclude prior convictions, stating that any felonies
allowed by the rules of evidence would not be excluded.
The state confirmed that the only prior convictions
were from 2008 and 2006 and that it did not intend
to introduce them into evidence unless the door was
opened to their admission. The state had filed a notice
of the uncharged misconduct evidence it intended to
submit; the court ordered that the state would provide
notice if it discovered anything else. The defendant’s
attorney asked that the court wait before considering
the state’s motion in limine and motion for uncharged
misconduct so that he could file a brief in response.
At the start of the third hearing, on February 1, 2013,
the defendant’s attorney again objected to the defen-
dant’s not being present, asserting that the hearing was
a critical stage of the defendant’s criminal prosecution.
The court responded: ‘‘Well, that matter’s been already
decided. Judge Solomon already denied that motion.
I’ve also denied it. It’s not critical for him to be here
today. It’s a hearing. He’s not going to be confronting
any of his witnesses or anything like that. So, that’s
been ruled upon already . . . .’’ The court then consid-
ered the defendant’s motion to suppress the testimony
of Maggie Nardelli, a Department of Children and Fami-
lies worker, regarding statements the defendant made
to her during her investigation on behalf of the depart-
ment. The court ruled that it would permit the defendant
to question Nardelli outside the presence of the jury
prior to her testimony so that the court could determine
whether the defendant thought he was talking to a law
enforcement officer and whether the defendant’s state-
ments to her were made voluntarily. The parties then
argued whether the defendant could present evidence
of L.B.’s arrest for disorderly conduct, which he had
witnessed, and whether the state could then offer evi-
dence of the defendant’s own involvement in the inci-
dent. The court ruled that evidence of both parties’
involvement could come in. The court also ruled that, on
cross-examination of L.B., the defendant could question
her regarding her therapy sessions in order to determine
whether there was anything in her medical records that
might require in camera review.
The parties then addressed the motion pertaining to
the admissibility of the defendant’s prior uncharged
misconduct. The court determined that one instance,
when the defendant allegedly yelled a racial epithet at
a worker who had come to fix his GPS monitor, should
not be admitted. Regarding seven other alleged events
of uncharged misconduct, the defendant’s attorney
argued that the events were too dissimilar to the crimes
alleged and too remote in time to have significant proba-
tive value, and would be highly prejudicial. The state
argued that the prior incidents of alleged violence
directed against L.B. showed that the defendant
engaged in a common scheme of using violence when
L.B. disagreed with him. The court ruled that it would
admit six uncharged misconduct incidents to show
intent, motive, absence of mistake and to establish a
common plan or scheme. It then turned to the state’s
request that it be permitted to introduce the testimony
of Nicole Tremblay, the defendant’s former girlfriend,
that the defendant had abused her during their relation-
ship. The court ruled that Tremblay’s testimony was
irrelevant and would be too prejudicial, but that if the
defendant opened the door to its admission, ‘‘then we’ll
see where it goes from there.’’7 The parties concluded
with a preliminary discussion on the record of the jury
instructions, including discussing the manner in which
the judge would provide limiting instructions for the
prior uncharged misconduct evidence.
After this appeal was filed, the defendant filed a
motion for articulation, which the court granted. The
motion for articulation asked: ‘‘When the trial court
(Kwak, J.) ruled that the defendant would not be per-
mitted to attend certain pretrial hearings, was the court
adopting Judge Solomon’s rationale at the hearing on
January 4, 2013? If not, on what basis did the court go
forward with the hearings in the defendant’s absence?’’
The court ruled that it ‘‘adopted Judge Solomon’s order
and its rationale under the law of the case doctrine.’’
It further ruled: ‘‘This court was of the opinion that the
issue was correctly decided by Judge Solomon. There
was no new or overriding circumstance that warranted
vacating, modifying or departing from Judge Solo-
mon’s ruling.’’
The defendant claims that his due process rights were
violated when Judges Kwak and Solomon did not permit
him to be present during the three hearings on pretrial
motions. The defendant claims that these hearings were
critical stages of the proceedings, and that his presence
would have contributed to the fairness of the procedure.
The defendant contends that neither Judge Solomon
nor Judge Kwak applied the correct legal test; specifi-
cally, the defendant asserts that even if the motions
concerned legal matters only, his right to be present
would apply to any critical stage in the proceedings
that bore a reasonably substantial relationship to the
fullness of his opportunity to defend against the
charges. As two examples of how the defendant’s pres-
ence could have affected his ability to defend against
the charges, the defendant argues that he could have
provided testimony in support of his motion for an in
camera review of L.B.’s mental health records, and that
he would have known that he should not open the
door to the admission of Tremblay’s testimony. The
defendant also maintains that, had he been present, he
would have better understood the process he was going
through and would have been able to more fully partici-
pate in his own defense.
The state responds that the defendant did not make
an adequate showing that his absence from the hearings
adversely affected his opportunity to defend against the
charges. It argues that the defendant did not demon-
strate what he could have added to the court’s determi-
nation of whether to engage in an in camera review of
L.B.’s mental health records. It argues that the defen-
dant should have made an offer of proof as to what his
testimony would have been. It also asserts that the
defendant’s attorney could have relayed the judge’s
holding regarding Tremblay to the defendant, cau-
tioning him to be wary of opening the door to the intro-
duction of her testimony.
‘‘It is undisputed that a defendant has a constitutional
right to be present at all critical stages of the trial. . . .
The constitutional right to presence is rooted to a large
extent in the [c]onfrontation [c]lause of the [s]ixth
[a]mendment . . . but . . . [that] right is protected by
the [d]ue [p]rocess [c]lause in some situations where
the defendant is not actually confronting witnesses or
evidence against him. . . . In judging whether a partic-
ular segment of a criminal proceeding constitutes a
critical stage of a defendant’s prosecution, courts have
evaluated the extent to which a fair and just hearing
would be thwarted by [the defendant’s] absence or
whether his presence has a relation, reasonably sub-
stantial, to the [fullness] of his opportunity to defend
against the charge. . . . Thus, a defendant is guaran-
teed the right to be present at any stage of the criminal
proceeding that is critical to its outcome if his presence
would contribute to the fairness of the procedure. Ken-
tucky v. Stincer, 482 U.S. 730, 745, 107 S. Ct. 2658,
96 L. Ed. 2d 631 (1987).’’ (Citations omitted; internal
quotation marks omitted.) State v. Dixon, supra, 318
Conn. 511–12; State v. Lopez, 271 Conn. 724, 732, 859
A.2d 898 (2004).
‘‘Although some courts have held that a defendant
has a right to be present even when questions of law
are discussed . . . the better view would seem to be
that there is no such absolute right . . . especially
when, as in the present case, the question of law is
argued prior to the selection of the jury and the com-
mencement of trial. . . . The question should be
whether the defendant’s presence bears a relation, rea-
sonably substantial, to his opportunity to defend.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Olds, 171 Conn. 395, 405–406, 370 A.2d 969 (1976).
‘‘[T]he exclusion of a defendant from a proceeding
should be considered in light of the whole record.’’
State v. McNellis, 15 Conn. App. 416, 432, 546 A.2d 292,
cert. denied, 209 Conn. 809, 548 A.2d 441 (1988).
Although there is no Connecticut case entirely on
point with the present case, State v. Olds, supra, 171
Conn. 405–406, is the most factually similar. In that
case, the trial court denied the defendant’s request to
be brought into court for a pretrial motions hearing,
which included motions to quash, for production, for
trial by a jury of twelve, and to reduce bond. Id., 405.
The defendant’s attorney did not advance a cogent rea-
son why he had a right to be present. Id. Our Supreme
Court ruled that, where a question of law is argued
prior to the selection of the jury and the commencement
of trial, ‘‘[t]he question should be whether the defen-
dant’s presence bears a relation, reasonably substantial,
to his opportunity to defend.’’ (Internal quotation marks
omitted.) Id., 406. Our Supreme Court determined that,
‘‘on the record before [it], there would have been no
advantage to having the defendant present when the
motions in question were discussed.’’ (Internal quota-
tion marks omitted.) Id.
In State v. Reyes, 19 Conn. App. 695, 564 A.2d 309,
cert. denied, 213 Conn. 803, 567 A.2d 833 (1989), this
court determined that the defendant should have been
permitted, pursuant to then Practice Book §§ 967 and
968, to attend a hearing during the course of trial, even
though the issues were entirely legal.8 This court deter-
mined that ‘‘the defendant’s enforced absence bore a
reasonably substantial relation to his opportunity to
defend himself because he was precluded from hearing
the court’s remarks reflecting upon his counsel’s prepa-
ration of his case.’’ Id., 700. It determined that the error
was harmless because the issue of attorney competence
was more appropriate for a habeas petition. Id., 701.
The issue presented in Olds is remarkably similar to
the issue presented to Judge Solomon on January 4,
2013. At the hearing before Judge Solomon, the defen-
dant stated that the motions to be argued at the January
7, 2013 hearing were a bill of particulars, a request
for essential facts, and a motion to dismiss regarding
discovery issues. The defendant’s attorney did not
explain why the defendant should be permitted to
attend, aside from stating that he liked to be in court.
Judge Solomon ruled that because only legal issues
would be argued, the defendant had no right to attend.
Although the court should have determined expressly
whether the hearing was critical and whether the defen-
dant’s presence bore a reasonably substantial relation
to his opportunity to defend himself, we conclude that
the hearing was not critical and did not bear a reason-
ably substantial relationship to his opportunity to
defend himself. See State v. Olds, supra, 171 Conn.
405–406.
When the issue again was raised before Judge Kwak
on January 7, 2013, however, the defendant’s attorney
had asserted in his memorandum of law that he
intended to argue several additional motions, and the
defendant provided justification for his presence. These
motions dealt with factual issues within the defendant’s
knowledge, such as his own prior uncharged miscon-
duct, the criminal record of L.B. concerning conduct
that he had witnessed, and his observations regarding
L.B.’s mental state. In addition, the prosecutor acknowl-
edged that some of the motions were in fact critical
and conceded that she did not object to the defendant’s
being present, subject to whatever monitoring was
appropriate.9 Judge Kwak properly decided the motions
that the parties agreed could be decided outside the
defendant’s presence. The court ruled that it would
consider whether the defendant had a right to be pre-
sent at later hearings with respect to the remaining
motions.
We now turn to Judge Kwak’s decision that the defen-
dant did not have a right to be present at the two
subsequent hearings, on January 15, 2013, and February
1, 2013. At the January 15, 2013 hearing, the defendant
argued his motion for in camera review of L.B.’s mental
health records. The defendant asserts that he could
have provided additional testimony regarding L.B.’s
mental health that could have affected the court’s deter-
mination regarding whether in camera review was war-
ranted. The defendant had stated in his motion to be
present that some of the motions might require his
testimony, but his attorney did not state at the hearing
that this was a motion that required testimony, nor did
he make a proffer of what the defendant’s testimony
would have been.
This hearing was a critical stage in the proceedings.
The case amounted to a credibility contest between the
defendant and L.B. They were the only two witnesses
to the altercation who testified. Whether L.B. had any
mental health issues impacting her ability to recall
events or to be truthful was a key concern.
In addition, the defendant could have made a mean-
ingful contribution to the proceedings. He knew the
witness who did testify, Haataja, and, therefore, may
have aided his attorney’s questioning of her. In addition,
he may have been asked to provide additional testimony
regarding incidents wherein L.B. exhibited a tendency
to fabricate untruths or to harm herself. The state con-
tends that, without a proffer of the defendant’s testi-
mony, we cannot determine whether he would have
contributed meaningfully to his own defense.10
Although we cannot determine the precise nature of the
defendant’s contribution, the considerations previously
discussed demonstrate that his presence bore a reason-
ably substantial relationship to his opportunity to
defend himself. See id. We therefore find that the defen-
dant’s due process right to be present at the January
15, 2013 hearing was violated.
We next turn to the hearing on February 1, 2013.
At the start of this hearing, the defendant’s attorney
reiterated his request that the defendant be present.
This hearing concerned a number of substantive
motions, including the defendant’s motion to suppress
a statement that he had made to Nardelli, the state’s
motion to admit evidence of uncharged misconduct,
and cross motions by the state to permit Tremblay’s
testimony and by the defendant’s attorney to preclude
Tremblay from testifying because of late discovery. In
assessing whether this hearing was critical to the defen-
dant’s defense, we assess the potential impact of these
pieces of evidence on the defendant’s case on the basis
of the defendant’s attorney’s statements at the February
1, 2013 hearing, and the statements in the motions
regarding the anticipated evidence.
The importance of the evidence discussed at this
hearing demonstrates that it was a critical stage of the
case. The content of Nardelli’s anticipated testimony
was not discussed at the hearing or in the motion to
suppress, but the suppression of statements made by
the defendant is often an important consideration.11
More importantly, the admission of the defendant’s
uncharged misconduct, consisting of violence and
threats of violence directed against L.B., potentially
would have a significant effect on the jury’s view of him.
Finally, Tremblay’s testimony regarding prior abuse by
the defendant directed against her could provide strong
corroboration for the state’s case. This hearing was
critical to the defendant’s defense.
Although the defendant has not claimed that he would
have testified in support of any of the motions argued
on February 1, 2013, many concerned his own actions
and statements. He could have aided in his defense by
suggesting arguments to his attorney or disputing the
characterization of his actions by the state. The key
issue regarding his uncharged misconduct was how
similar it was to the conduct in the present case. He
could have helped his attorney to formulate arguments
regarding how the various incidents of misconduct were
different, or to correct mischaracterizations by the
state. See People v. Dokes, 79 N.Y.2d 656, 595 N.E.2d
836, 584 N.Y.S.2d 761 (1992).12 Finally, had the defendant
been present at the hearing, he may have better under-
stood the importance of preventing Tremblay’s testi-
mony from being admitted. This may have encouraged
the defendant to testify in a more guarded manner. His
presence could have contributed to the fairness of the
procedure. His absence bore a reasonably substantial
relationship to his opportunity to defend himself.
Having determined that the defendant’s right to due
process was violated, we now turn to whether the defen-
dant’s absence should be considered an instance of
structural error or whether it is subject to a harmless
error analysis. The defendant asserts, citing State v.
Lopez, supra, 271 Conn. 726, that when the defendant
is denied his right to be present, the error is structural
in nature and not subject to harmless error analysis. In
the alternative, the defendant contends that the court’s
error clearly was not harmless. The state responds that
Lopez is distinguishable on its facts, and that any error
was harmless because the defendant failed to demon-
strate what he could have done differently had he been
present at the hearings. We agree that Lopez is distin-
guishable, but conclude that the error was not harmless.
‘‘A determination that the defendant’s absence from
a critical stage of the proceedings violated his constitu-
tional rights does not end the inquiry that a reviewing
court must conduct in deciding whether to order a new
trial.’’ Id., 732. ‘‘Although the United States Supreme
Court has noted that most constitutional errors are
subject to a harmless error analysis . . . the Supreme
Court has recognized . . . that, when the conse-
quences of the deprivation of the defendant’s constitu-
tional right are necessarily unquantifiable and
indeterminate, [the deprivation of that right] unques-
tionably qualifies as structural error.’’ (Citation omitted;
internal quotation marks omitted.) Id., 737–38. ‘‘Struc-
tural [error] cases defy analysis by harmless error stan-
dards because the entire conduct of the trial, from
beginning to end, is obviously affected . . . .’’ (Internal
quotation marks omitted.) Id., 733. ‘‘A structural error
creates a defect in the trial mechanism such that, while
it is virtually impossible to pinpoint the exact harm, it
remains abundantly clear that the trial process was
flawed significantly. For this reason, [e]rrors of this
magnitude are per se prejudicial and require that the
underlying conviction be vacated.’’ (Emphasis omitted;
internal quotation marks omitted.) Id., 739. Our
Supreme Court ‘‘has found error to be structural only
when the error renders a trial fundamentally unfair and
is not susceptible to a harmless error analysis . . . .’’
(Internal quotation marks omitted.) State v. Brown, 279
Conn. 493, 509–10, 903 A.2d 169 (2006).
Our Supreme Court in Lopez held that where a crimi-
nal defendant is denied knowledge of a potential con-
flict of interest of his attorney, it is impossible to say
how the subsequent proceedings have been affected.
State v. Lopez, supra, 271 Conn. 736. ‘‘[T]he potential
conflict centered around the pivotal witness against the
defendant—the victim—and the critical issue at trial—
the victim’s credibility. It is impossible to know, had
the defendant been present, whether he would have
initiated further inquiry into the conflict, requested new
counsel or requested that [the defendant’s attorney]
testify on the defendant’s behalf. . . . Thus, the conse-
quences of the deprivation of the defendant’s right to
be present in this case are necessarily unquantifiable
and indeterminate, and the deprivation of that right
unquestionably qualifies as structural error.’’ (Citation
omitted; emphasis omitted; internal quotation marks
omitted.) Id., 738. Here, in contrast, the motion hearings
concerned specific evidence that the defendant claims
might not have been admitted, or would have been
admitted, if he had been present. The effects of the
error are quantifiable and determinate. Accordingly, we
apply a harmless error analysis.
The defendant argues that, in general, his absence
compromised his ability to defend against the charges.
The defendant again focuses on his inability to testify
in support of his motion for in camera review of L.B.’s
mental health records, and his inability to hear the
court’s orders regarding Tremblay’s testimony and the
opening the door doctrine. He also contends that the
interest in transparency of court proceedings and the
intangible assistance the defendant could have provided
to his attorney demonstrate that the error was not harm-
less. The state responds that the defendant has not
provided evidence of what his testimony would have
been if he had been present to testify in support of his
motion for in camera review.13 It further argues that the
defendant’s attorney should have discussed the opening
the door doctrine with him, and that, therefore, his
rights were protected.
‘‘[T]he United States Supreme Court has repeatedly
reaffirmed the principle that an otherwise valid convic-
tion should not be set aside if the reviewing court may
confidently say, on the whole record, that the constitu-
tional error was harmless beyond a reasonable doubt.’’
(Internal quotation marks omitted.) State v. Brown,
supra, 279 Conn. 504. ‘‘[T]he state bears the burden of
proving that the constitutional impropriety was harm-
less beyond a reasonable doubt.’’ Id., 511. In evaluating
whether a denial of presence is harmless, ‘‘[w]e first
determine whether the defendant’s presence . . .
would have contributed to his ability to defend against
the charges. . . . We then consider the evidence pre-
sented at trial.’’ (Citation omitted.) State v. Zapata, 119
Conn. App. 660, 685, 989 A.2d 626, cert. denied, 296
Conn. 906, 992 A.2d 1136 (2010), overruled in part on
other grounds by State v. Dixon, 318 Conn. 495, 509
n.4, 122 A.3d 542 (2015).14
Although the state asserts that any error was harm-
less because the defendant’s counsel did not proffer
the defendant’s testimony in support of his motion for
in camera review, we note that the state bears the bur-
den of proving harmlessness. On the basis of our review
of the record, we conclude that the state has not proven
that the absence of the defendant was harmless beyond
a reasonable doubt. The lack of L.B.’s mental health
records, the admission of the defendant’s prior miscon-
duct, and the lack of an opportunity for the defendant
to hear the discussion regarding Tremblay’s testimony
all could have affected the outcome of this case.15 L.B.
was the only witness to the altercation at issue to testify
against the defendant. Her testimony was corroborated
by the 911 tape, on which the state claims that L.B.
and I.B. can be heard, and her physical injuries were
corroborated by the testimony of the police and the
medical experts who examined her.16 Still, L.B.’s testi-
mony regarding prior uncharged misconduct may have
been crucial in convincing the jury of the defendant’s
guilt beyond a reasonable doubt. L.B.’s testimony
regarding the defendant’s prior violence toward her
made this incident the latest in a string of incidents,
and suggested that the defendant made a practice of
using physical force to intimidate. Tremblay’s testi-
mony, admitted after the defendant had opened the
door to it by saying he did not punch people, provided
the linchpin in this characterization of the defendant
because it provided independent corroboration of the
defendant’s pattern of abusive behavior. Had none of
these bad acts been admitted, or even if fewer of them
had been admitted, the result of the trial could have
been different. Finally, if L.B.’s mental health records
did indeed contain corroboration for the defendant’s
theory that she had a propensity for fabrication, the
state’s case would have been weakened further. The
state has not met its burden of showing that the court’s
error in denying the defendant the right to be present
at the January 15, 2013 and February 1, 2013 hearings
was harmless beyond a reasonable doubt.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of the crime of risk of injury to a child, we decline to use the
defendant’s full name or to identify the minor victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
1
The following colloquy occurred between the court and the defendant’s
counsel regarding the request that the defendant be allowed to attend the
motions hearing:
‘‘[The Defendant’s Attorney]: . . . Your Honor, on an administrative note,
can he come to court on Monday morning here?
‘‘The Court: Is she going to be here? Oh. You—why does he need to be
here? It’s a discovery motion.
‘‘[The Defendant’s Attorney]: Well, I mean, I like—he likes to be in court
to hear what—
‘‘The Court: I’m sure he’d rather be anywhere than at home. No, you can’t
be here on Monday. It’s—
‘‘[The Defendant’s Attorney]: Okay.
‘‘The Court: —a legal matter only.’’
2
The motions listed in the defendant’s motion were: a request for disclo-
sure, a motion for bill of particulars, a motion for preservation and produc-
tion of materials related to radio and telephone communications, a motion
to suppress, a motion to reserve the right to file supplemental motions, a
request for essential facts, a request for names of witnesses and prior records
of witnesses, a motion to require notice of uncharged misconduct evidence,
a motion in limine to exclude prior convictions, a request to make an opening
statement, a claim for the motions docket and a motion for argument on
motions, a motion for in camera review of records of L.B., and a motion to
dismiss all charges against the defendant.
3
The defendant’s attorney did not argue that the basis of Judge Solomon’s
decision had been that the motions were discovery motions. All of the
motions had been filed previously (July 31, 2012, August 1, 2012, October 24,
2012, and January 1, 2013); before Judge Solomon, the defendant’s attorney
referenced only discovery motions. In his motion and before Judge Kwak,
the defendant’s attorney discussed all the motions and emphasized the
substantive ones. Moreover, several key motions were filed after the January
7, 2013 hearing, including, on January 14, 2013, the state’s notice of uncharged
misconduct regarding eight incidents, and on January 30, 2013, the state’s
notice of uncharged misconduct related to Tremblay.
4
The court did articulate its decision later; we will discuss the articulation
in this opinion.
5
As part of his appeal, the defendant filed a motion for review requesting
that the trial court hold an evidentiary hearing to determine whether he
was present in court for the pretrial hearing on January 15, 2013, which
this court granted. The hearing was held on June 18, 2014; the trial court
found that the defendant had not been present at the January 15, 2013
hearing.
6
‘‘[A] history of mental illness does not automatically impugn a witness’
ability to testify truthfully and to relay events accurately. Moreover, the
existence of a psychiatric disorder does not automatically [make] a witness
fair game for disclosure of psychiatric records to a criminal defendant. . . .
[T]he linchpin of the determination of the defendant’s access to the records
is whether they sufficiently disclose material especially probative of the
[witness’] ability to comprehend, know and correctly relate the truth . . .
so as to justify breach of their confidentiality and disclosing them to the
defendant in order to protect his right of confrontation.’’ (Citation omitted;
internal quotation marks omitted.) State v. Blake, supra, 106 Conn. App. 352.
7
During the course of the trial, the court determined that the defendant
had opened the door to testimony by Tremblay when he stated that he
did not normally punch people. It permitted the state to first question the
defendant about Tremblay, and then call and question her regarding the
defendant’s having hit her.
8
The current corollaries to Practice Book §§ 967 and 968 are §§ 44-7 and
44-8, respectively, which have not been raised in the present case.
9
Despite these changed circumstances, Judge Kwak stated in his articula-
tion that the law of the case doctrine justified his decision. We conclude that,
the underlying circumstances being different, Judge Kwak was incorrect to
apply the law of the case doctrine. ‘‘The law of the case doctrine expresses
the practice of judges generally to refuse to reopen what [already] has been
decided . . . . New pleadings intended to raise again a question of law
which has been already presented on the record and determined adversely
to the pleader are not to be favored. . . . [When] a matter has previously
been ruled [on] interlocutorily, the court in a subsequent proceeding in the
case may treat that decision as the law of the case, if it is of the opinion that
the issue was correctly decided, in the absence of some new or overriding
circumstance.’’ (Internal quotation marks omitted.) Total Recycling Services
of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC, 308 Conn.
312, 322, 63 A.3d 896 (2013); id., 323 (trial court improperly applied law of
the case doctrine where defendants presented new evidence and new legal
analysis in support of their claim); see also Johnson v. Atkinson, 283 Conn.
243, 250, 926 A.2d 656 (2007) (where facts were contested when prior judge
decided issue, subsequent judge did not err when deciding issue differently
based on stipulated facts), overruled in part on other grounds by Jaiguay
v. Vasquez, 287 Conn. 323, 348, 948 A.2d 955 (2008).
10
The defendant cites to his attorney’s testimony at the hearing on his
motion for review. See footnote 5 of this opinion. In addition to testifying
that the defendant had been absent on January 15, 2013, the defendant’s
attorney also testified regarding the assistance the defendant could have
provided had he been present. The court cut this testimony short following
the state’s objection, as it was beyond the scope of the hearing. Therefore,
the defendant’s attorney was not subject to cross-examination. The trial
court stated that it did not give much weight to the inferences the defendant
asked the court to make. The trial court’s only holding was that the defendant
had not been present on January 15, 2013. Therefore, we cannot consider
that testimony as evidence that was properly before the trial court, but only
as an argument by counsel.
11
The court ruled that it would hear Nardelli’s testimony outside of the
jury’s presence, then determine whether the defendant thought she was a
member of law enforcement and whether he had made statements to her
voluntarily. Although this outcome was in the defendant’s favor, the potential
impact of Nardelli’s testimony provides weight to the importance of the
hearing. Prior to Nardelli’s trial testimony, the court ruled that she could
testify regarding the defendant’s statements because he was a party oppo-
nent. She did not testify outside the presence of the jury, and the court did
not rule on the issues of whether the defendant had perceived her to be a
member of law enforcement, or whether he spoke to her voluntarily. In her
testimony, she recounted contradictory statements made by the defendant
regarding the incident.
12
‘‘Given the number of factors that are relevant to the court’s decision,
the potential for meaningful participation by the defendant during the deter-
mination of the merits of a [hearing regarding whether uncharged miscon-
duct is admissible] is apparent. For example, the defendant is in the best
position to point out errors in [his arrest record], to controvert assertions
by the prosecutor with respect to uncharged acts and to provide counsel
with details about the underlying facts of both charged and uncharged
acts. In short, the defendant’s presence will help to ensure that the court’s
determination will not be predicated on the prosecutor’s unrebutted view
of the facts . . . . The importance of the defendant’s ability to participate
in this proceeding is compounded by the significance of the court’s determi-
nation. The court’s ruling on the permissible scope of cross-examination
about prior bad acts is often the pivotal factor in the defendant’s determina-
tion whether to testify.’’ (Citation omitted; footnote omitted; internal quota-
tion marks omitted.) People v. Dokes, supra, 79 N.Y.2d 661–62.
13
We are skeptical as to the mechanism by which the defendant’s attorney
could have proffered the defendant’s testimony. The defendant was not
present in court, and the court had at that point already denied his motion
to be present.
14
The Supreme Court in State v. Dixon, supra, 318 Conn. 509 n.4, over-
turned this court’s determination in State v. Zapata, supra, 119 Conn. App.
685, that an in-chambers hearing on potential juror bias was a critical stage
of the proceedings, to the extent that the two were in conflict. The Supreme
Court did not overturn the Zapata court’s harmless error analysis.
15
As stated in footnote 11 of this opinion, Judge Kwak did not rule on
the admissibility of Nardelli’s testimony until trial. At trial, despite his state-
ment at the February 1, 2013 hearing, he admitted her testimony without
asking her to testify outside the presence of the jury or otherwise ruling
on the issues raised in the motion hearing; he admitted her testimony as a
statement of a party opponent. Her subsequent testimony was harmful to
the defendant, but the relationship between the admission of her testimony
and the defendant’s absence from the February 1, 2013 hearing is attenuated.
We will therefore confine our harmless error analysis to the other evidence
discussed at the January 15, 2013 and February 1, 2013 hearings.
16
The defendant’s forensic expert raised the issue that a physician’s diag-
nosis that L.B. had been strangled was not dispositive that she was strangled
within the meaning of the legal standard. There were several common physi-
cal signs of strangulation that were not present during L.B.’s examinations
or in the photographs taken by the police. On cross-examination, the expert
conceded that there would be cases of strangulation where these physical
signs were not present.