State v. Mebane

Arthur H. Healey, J.

After a trial to the jury, the defendant, James Mebane, was found guilty of the crime of the sale of heroin in violation of General Statutes § 19-480 (a).¹ The defendant then appealed his conviction to the Appellate Court. The Appellate Court affirmed the judgment of conviction. State v. Mebane, 8 Conn. App. 63, 511 A.2d 359 (1986). Thereafter, this court granted the defendant’s petition for certification.

The question presented in the defendant’s petition is as follows: “Did the Appellate Court err in failing to find reversible error in the trial court’s granting of [the] state’s motion to sequester the defendant from his attorney . . . .” The defendant claims that the Appellate Court erred in two respects: (1) failing to find that the trial court’s order mandated a per se reversal; and (2) holding that the state sustained its burden of showing that the trial court’s error was harmless beyond a reasonable doubt.² We reverse the Appellate Court and remand to that court with direction.

The following background circumstances are not in dispute. After the state had rested its case-in-chief on September 5,1984, the defendant took the stand to testify. On the first day of his testimony, during cross-examination by the state, the trial court stated that it was going to take a recess. At that time, the state asked the court for a sequestration order as to the defendant.³ The state requested that the defendant “not talk to his counsel since [the state was] in the middle of cross-examination.” Although defense counsel “strongly” objected, the court granted the state’s request. Defense counsel took an exception to the ruling.

After a recess of approximately twenty-one minutes, the court reconvened and the state resumed its cross-examination of the defendant. After the defendant had been questioned, without any further recess, on redirect, recross, additional redirect and recross, the court adjourned for the day. The next morning, the defendant was recalled and testified on additional redirect, recross and then additional redirect and recross.⁴

The defendant argues that the trial court’s sequestration order violated his rights under the United States constitution and the Connecticut constitution which guarantee him a fair trial, due process and the effective assistance of counsel. U.S. Const., amends. VI, XIV; Conn. Const., art. I, § 8; State v. Mebane, supra, 65.⁵ The defendant maintains that a sequestration order such as that given in this case, no matter for how short a time, mandates reversal per se. He argues that the harmless error rule is not applicable in this context because the United States Supreme Court has recognized that “there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error,” citing Chapman v. California, 386 U.S. 18, 23, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967). Alternatively, he attacks the Appellate Court’s application of the harmless error doctrine. The defendant argues that if the harmless error doctrine is applicable, the Appellate Court erred in concluding that the state had sustained its burden of proving that the trial court’s error was harmless beyond a reasonable doubt.

The state, on the other hand, argues that the Appellate Court did not err in rejecting a rule of per se reversal. It asserts that the right to effective assistance of counsel is not one of the constitutional protections the denial of which requires automatic reversal. Even conceding that the trial court’s ruling was error, as the state did before both this court and the Appellate Court, it nevertheless maintains that the Appellate Court correctly applied harmless error analysis in concluding that the state had proven the error harmless beyond a reasonable doubt. State v. Mebane, supra, 65, 70. We disagree and reverse the judgment of the Appellate Court.

“The Sixth Amendment provides that an accused shall enjoy the right ‘to have the Assistance of Counsel for his defense.’ This right, fundamental to our system of justice,⁶ is meant to assure fairness in the adversary criminal process. Gideon v. Wainwright, 372 U.S. 335, 344 [88 S. Ct. 792, 9 L. Ed. 2d 799] (1963); Glasser v. United States, 315 U.S. 60, 69-70, 75-76 [62 S. Ct. 454, 86 L. Ed. 680] (1942); Johnson v. Zerbst, 304 U.S. 458, 462-63 [58 S. Ct. 1019, 82 L. Ed. 1461] (1938).” (Emphasis added.) United States v. Morrison, 449 U.S. 361, 364, 101 S. Ct. 665, 66 L. Ed. 2d 564, reh. denied, 450 U.S. 960, 101 S. Ct. 1420, 67 L. Ed. 2d 385 (1981). The United States Supreme Court “[has] . . . been responsive to proved claims that governmental conduct has rendered counsel’s assistance to the defendant ineffective. Moore v. Illinois, 434 U.S. 220 [98 S. Ct. 458, 54 L. Ed. 2d 424] (1977); Geders v. United States, 425 U.S. 80 [96 S. Ct. 1330, 47 L. Ed. 2d 592] (1976); Herring v. New York, 422 U.S. 853 [95 S. Ct. 2550, 45 L. Ed. 2d 593] (1975); Gilbert v. California, 388 U.S. 263 [87 S. Ct. 1951, 18 L. Ed. 2d 1178] (1967); United States v. Wade, 388 U.S. 218 [87 S. Ct. 1926, 18 L. Ed. 2d 1149] (1967); Massiah v. United States, 377 U.S. 201 [84 S. Ct. 1199, 12 L. Ed. 2d 246] (1964).” United States v. Morrison, supra; see Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984).

There is no question that the trial court’s order entered on the state’s motion was erroneous and that this error was of constitutional magnitude. The issue, therefore, is whether a per se reversal of the defendant’s conviction is required or whether the harmless error analysis is to be applied.

In pressing their claims, both parties, as did the Appellate Court, place great emphasis on Geders v. United States, supra. In Geders, the United States Supreme Court held that a trial court order preventing Geders, a defendant in a federal prosecution, from consulting with his counsel “ ‘about anything’ ” during a seventeen hour overnight recess between his direct and cross-examination “impinged” upon his right to the assistance of counsel guaranteed by the sixth amendment. Id., 91. While acknowledging the broad powers of a trial judge over the control and shaping of the trial, Geders held that that power did not include the authority to prohibit consultation between a criminal defendant and his attorney for so long a period of time. The per se holding in Geders was reached without requiring the defendant to make any preliminary showing of prejudice. The Geders court, however, expressly limited its holding, stating: “United States v. Leighton, 386 F.2d 822 ([2d Cir.] 1967), on which the Court of Appeals relied, involved an embargo order preventing a defendant from consulting his attorney during a brief routine recess during the trial day, a matter we emphasize is not before us in this case.” Id., 89 n.2. Accordingly, the United States Supreme Court did not decide the question of whether a court order denying the right of consultation between a criminal defendant and his attorney “during a brief routine recess” constitutes a violation of the defendant’s sixth amendment rights.⁷

Although, as the court suggested in Geders, some courts had already spoken to the question the Geders court left open; see, e.g., United States v. Leighton, supra; it was not long after the Geders decision that courts were then called upon to decide that open question. The federal circuit courts that have addressed the issue have reached differing results. In Crutchfield v. Wainwright, 803 F.2d 1103, 1109 (11th Cir. 1986) (Crutchfield II), reh. denied, 810 F.2d 208 (1987), the court summarized the different holdings stating: “The majority of the circuits that have announced rules for reviewing denial of assistance of counsel claims favor the per se rule. United States v. Allen, 542 F.2d 630 (4th Cir. 1976), cert. denied, 430 U.S. 908, 97 S. Ct. 1179, 51 L. Ed. 2d 584 (1977) (per se rule applied prospectively); United States v. Bryant, 545 F.2d 1035 (6th Cir. 1976) (in absence of extraordinary circumstances, it is abuse of discretion and violation of right of defendant to assistance of counsel for a trial court to direct that defendant have no communication with his counsel during criminal trial over a noon recess). Only one circuit applies a harmless error analysis to a prohibition of consultation during trial between a criminal defendant and his counsel. United States v. DiLapi, 651 F.2d 140 (2d Cir. 1981), cert. denied, 455 U.S. 938, 102 S. Ct. 1427, 71 L. Ed. 2d 648 (1982). The Third and Fourth Circuits hold that no deprivation occurs in the absence of an objection. See Bailey v. Redman, 657 F.2d 21 (3d Cir. 1981), [cert. denied, 454 U.S. 1153, 102 S. Ct. 1024, 71 L. Ed. 2d 310, reh. denied, 455 U.S. 995, 102 S. Ct. 1624, 71 L. Ed. 2d 857 (1982),] and Stubbs v. Bordenkircher, 689 F.2d 1205 (4th Cir. 1982), cert. denied, 461 U.S. 907, 103 S. Ct. 1879, 76 L. Ed. 2d 810 (1983).” Allen involved a routine recess. Bryant concerned a blanket restriction during the luncheon recess. DiLapi was a five minute recess and said that a showing of specific prejudice was necessary. In Bailey, the Third Circuit determined that the deprivation of assistance of counsel did not take place because the defendant did not object to the restriction on communication imposed by the trial court’s order, but if the defendant had objected, prejudice need not be established. In Stubbs, a luncheon recess case, specific prejudice was required to be shown. The Fifth Circuit has also addressed this issue holding that even a brief restriction on a criminal defendant’s right to confer with counsel constitutes a violation of the sixth amendment and that if such a restriction occurs, reversal is required per se. United States v. Conway, 632 F.2d 641 (5th Cir. 1980); see also United States v. Vesaas, 586 F.2d 101, 102 n.2 (8th Cir. 1978) (“we have grave doubts that even a brief restriction on a criminal defendant’s right to confer with counsel can be squared with the Sixth Amendment”).

Some state courts have formulated per se reversal rules since Geders. See, e.g., Jackson v. United States, 420 A.2d 1202 (D.C. 1979) (ban on consultation about testimony during luncheon recess); Stripling v. State, 349 So. 2d 187 (Fla. App. 1977) (blanket restriction imposed during luncheon recess); People v. Hagen, 86 App. Div. 2d 617, 446 N.Y.S.2d 91 (1982); Commonwealth v. Barber, 250 Pa. Super. 427, 429, 378 A.2d 1011 (1977), citing Commonwealth v. Logan, 456 Pa. 508, 325 A.2d 313 (1974); Mastracchio v. Houle, 416 A.2d 116 (R.I. 1980). Other state courts, however, in addressing recesses shorter than Geders have required a showing of specific prejudice. See, e.g., Bova v. State, 410 So. 2d 1343 (Fla. 1982) (ten minute recess); People v. Seider, 98 Ill. App. 3d 175, 423 N.E.2d 1217 (1981) (short recess to which defendant did not object); State v. Perry, 278 S.C. 490, 299 S.E.2d 324, cert. denied, 461 U.S. 908, 103 S. Ct. 1881, 76 L. Ed. 2d 811 (1983) (fifteen minute recess).

The Appellate Court rejected a rule of per se reversal, stating instead that it would employ a harmless error analysis. In doing so, it stated that “[w]e hold that the test set forth in Crutchfield v. Wainwright, [772 F.2d 839, 843, vacated, 779 F.2d 1466 (11th Cir. 1985) (Crutchfield I)],⁸ and Chapman v. California, supra, is the appropriate one and that the burden [of demonstrating harmless error beyond a reasonable doubt] should rest on the state.” State v. Mebane, supra, 69. Drawing on Chapman and Crutchfield I, the Appellate Court said that “[t]he rule of per se reversal is viable ‘only if the likelihood of prejudice is so great that a case-by-case inquiry would not be worth its cost. We simply do not believe that this is so in the case of routine recesses during the course of a day at trial. If the recess were very brief, for example, a matter of minutes, then prejudice to the defendant would seem highly unlikely. As the length of the recess increases, of course, so does the probability of prejudice. Nonetheless, denial of access during any recess of the type likely to arise in the course of a day at trial does not seem sufficiently likely to justify a rule of per se reversal.’ [Crutchfield I, supra].” State v. Mebane, supra, 67. Having determined to follow Crutchfield I, supra, which adopted the Chapman harmless error analysis, the Appellate Court found that the state had sustained its burden of proving harmless error beyond a reasonable doubt. State v. Mebane, supra, 69-70.⁹ We do not agree with the Appellate Court. We believe that a per se rule of automatic reversal more properly vindicates the denial of the defendant’s fundamental constitutional right to assistance of counsel guaranteed by the sixth amendment.

In Chapman v. California, supra, 23, the United States Supreme Court acknowledged that a federal harmless error rule should apply to some errors of constitutional magnitude while others can never be treated as harmless error. One such “substantial” right referred to in Chapman was the right to counsel. Id., 23 n.8, citing Gideon v. Wainwright, supra; see generally note, “Harmless Constitutional Error,” 83 Harv. L. Rev. 814 (1970); note, “Harmless Constitutional Error,” 30 U. Pitt. L. Rev. 553 (1968-69). Only last year, the United States Supreme Court, in the Chapman context, after noting that it “[had] stressed on more than one occasion, [that] the Constitution entitles a criminal defendant to a fair trial, not a perfect one,” stated: “At the same time, we have observed that some constitutional errors— such as denying a defendant the assistance of counsel at trial . . . are so fundamental and pervasive that they require reversal without regard to the facts or circumstances of the particular case. Chapman [v. California, supra,] (citing Gideon v. Wainwright, [supra] . . .).” Delaware v. Van Arsdall, 475 U.S. 673, 681, 681-82, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986); see Mudd v. United States, 798 F.2d 1509, 1513-14 (D.C. Cir. 1986).

The Chapman harmless error analysis, we submit, is not workable in cases of the complete denial of the assistance of counsel. First, to require a showing of prejudice “burdens” one of the most fundamental rights of a criminal accused, that is, the defendant’s right to have “the guiding hand of counsel at every step in the proceedings against him.” Powell v. Alabama, 287 U.S. 45, 69, 53 S. Ct. 55, 77 L. Ed. 2d 158 (1932). While Powell was decided over fifty years ago, its vigor persists, particularly when the right to assistance of counsel is denied “at a critical stage of the proceedings,” as in this case. To require the defendant to show prejudice would, of course, implicate and most likely intrude into the attorney-client relationship—a consequence hardly commendable. See Bailey v. Redman, supra, 24. Moreover, the state has the burden of proving harmless error and yet the defendant and his attorney are the only ones realistically in possession of the relevant circumstances, i.e., what they would have discussed had they not been ordered otherwise. See Crutchfield II, 1114-15 n.12 (Tjoflat, J., concurring). In any event, short of the real danger of trenching upon the attorney-client privilege, another reason for rejecting a rule that the defendant must show prejudice is that the impact of prejudice. from being deprived of the assistance of counsel cannot be adequately assessed from the bare record itself in contrast to “the normal case where a harmless-error rule is applied, the error occurs at trial and its scope is [more] readily identifiable.” Holloway v. Arkansas, 435 U.S. 475, 490, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978).

It is apparent that the only way a defendant could show prejudice would be to disclose by evidence what he and his counsel would have discussed, what they were prevented from discussing and how the improper court order allegedly interfered with his defense. It is no answer, as the state argues, that all the defendant or his counsel has to do when the trial court enters such an order is to state that they want to consult with each other and, therefore, the potential intrusion of the attorney-client privilege never emerges. This hardly seems a viable solution where the state, as here, affirmatively seeks the order proscribing this fundamental right. In this case, defense counsel “strongly object[ed]” to the order. Given the defendant’s right to communicate with counsel, counsel’s objection and exception, fairly viewed, must only mean that the defendant and counsel desired to communicate. This objection and exception alerted the court and the state in that regard. Significantly, the state raised no claims of concern over “coaching” the defendant or other potential impropriety involving counsel at any time. Even if it had, Geders properly describes methods of meeting such problems without ordering an absolute denial of communication. See Geders v. United States, supra, 89-91; see also Crutchfield II, supra, 1114-15 (Tjoflat, J., concurring). Moreover, no citation is needed to demonstrate that recesses, long or short, offer the opportunity for a defendant and his counsel to discuss many things including “advice on demeanor or speaking style.” Mudd v. United States, supra, 1512.¹⁰

It is evident that a per se rule not only better serves justice but that it is also more consistent with Geders than harmless error analysis. While the Geders majority did not specifically address the issue of whether Geders had been prejudiced by the trial court’s nonconsultation order, it must have necessarily rejected the holding of the Fifth Circuit Court of Appeals in United States v. Fink, 502 F.2d 1 (5th Cir. 1974). In Fink from which Geders had appealed, the Fifth Circuit held that the reversal of Geders’ conviction was not proper unless there was a showing of “actual harm.” Id., 9. We agree with the Mudd court in that regard when it says of Geders: “Given that the question was squarely presented, it is unreasonable to assume that the [United States] Supreme Court sub silentio subjected the violation [of the right to counsel] to a harmless error test. See Geders [v. United States, supra, 92] . . . .’’Mudd v. United States, supra, 1513; see also Jackson v. United States, supra, 1204. In 1984, the court in United States v. Cronic, 466 U.S. 648, 659 n.25, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), cited Geders, inter alia, for the statement that it had “uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding. ” (Emphasis added.) Additional support for this is found in Justice Marshall’s concurring opinion in Geders, joined by Justice Brennan, where he states: “[A] defendant who claims that an order prohibiting communication with his lawyer impinges upon his Sixth Amendment right to counsel need not make a preliminary showing of prejudice. Such an order is inherently suspect, and requires initial justification by the government.” Geders v. United States, supra, 92-93 (Marshall, J., concurring).

Our reading of the cases urged upon us by the state do not require a different legal result. The state refers to Morris v. Slappy, 461 U.S. 1, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983), stating in its brief that “the right to effective assistance of counsel is not one of the constitutional protections that requires automatic reversal” and quotes a sentence from that decision which states: “Not every restriction on counsel’s time or opportunity to investigate or to consult with his client or otherwise to prepare for trial violates a defendant’s Sixth Amendment right to counsel.” Id., 11. Slappy is inapposite here for several reasons. In Slappy, the issue was whether the defendant’s sixth amendment right to counsel was violated by the state trial court “by denying [Morris’] motion for a continuance until the Deputy Public Defender initially assigned to defend him was available [after hospitalization for surgery].” Id., 4. That issue is certainly not the issue here. In Slappy, the Chief Justice in writing for five members of that court did not refer to Powell, Geders or Chapman apparently because that case simply did not involve, even arguably, the issue before us. Moreover, as we have already noted, the strong objection and exception to the trial court’s order in this case was adequate to indicate that counsel and this defendant wanted to communicate during the recess as is normally done. Our disposition does not require a showing of prejudice where such a blanket order is made and objected and excepted to. It is interesting to point out that Slappy also states: “Of course, inconvenience and embarassment to witnesses cannot justify failing to enforce constitutional rights of an accused; when a prejudicial error is made that clearly impairs a defendant’s constitutional rights, the burden of a new trial must be borne by the prosecution, the courts, and the witnesses; the Constitution permits nothing less.” Id., 14.¹¹

The state, in oral argument, also referred to Delaware v. Van Arsdall, supra, and United States v. Hasting, 461 U.S. 499, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983), as indicating that “most [but not all] constitutional violations are amenable to harmless error” analysis. It is true that in Delaware v. Van Arsdall, supra, 681, the United States Supreme Court stated that “[t]he harmless-error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence . . . .” Van Arsdall, however, in the next sentence points out that “[a]t the same time, we have observed that some constitutional errors—such as denying a defendant the assistance of counsel at trial . . . are so fundamental and pervasive that they require reversal without regard to the facts or circumstances of the particular case.” Id., 681, citing Chapman v. California, supra, 23 n.8;¹² see Mudd v. United States, supra, 1513-14. To any argument that Van Arsdall stands for the proposition that a harmless error test is required before reversing a conviction for a sixth amendment violation, it suffices to say that not only did Van Arsdall involve a violation of the confrontation clause and not the right to counsel clause of the sixth amendment, but also that nothing in that case suggests that a sixth amendment infringement shall be subject to a similar inquiry.

In addition, neither Leighton nor DiLapi, both decided by the Second Circuit Court of Appeals, requires a contrary result. First, the Second Circuit’s view is the minority view. Crutchfield II, supra, 1109. Leighton, which was decided pre-Geders, involved an absolute prohibition of consultation during a luncheon recess. The Leighton court disapproved that prohibition, not only calling it “plainly uncalled for” but also stating that “we are unable to understand why it was sought or made . . . .” United States v. Leighton, supra, 823. The court in Leighton declined to order a new trial in the absence of any “actual harm to the right to effective assistance of counsel.” Id. In United States v. DiLapi, supra, 148, which involved a five minute recess, the court, acknowledging that other circuits had “applied Geders to reverse convictions, without inquiring as to actual harm, when communication between defendant and counsel was barred during brief recesses in the middle of the trial day,” nevertheless declined to do likewise. While recognizing that there is “some force to the contention that reversal should always occur because attempts to demonstrate how helpful a consultation would have been may themselves risk some impairment of the right to effective assistance of counsel by intruding upon protected confidences,” the DiLapi court, citing the Geders limitation to an overnight recess and its earlier disapproval in Leighton, stated that it was “reluctant . . . in the present state of the law [to say] that the erroneous instruction requires an automatic reversal in this case.” Id. DiLapi, however, opined that it “need not determine whether a similar instruction would require reversal in cases arising hereafter without regard to actual prejudice.” Id., 149. Significantly, the court closed its discussion of this issue by stating: “It is sufficient to state that the instruction should not be given again.” Id. Whether this admonition foreshadows a potentially different view by the Second Circuit Court of Appeals is, of course, speculative. In any event, we believe that the approach that we adopt today represents the better view.

Finally, we are aware that frequently all of the witnesses, both for the state and defense, are the subject of a sequestration order. A criminally accused, however, is not simply a witness but also the defendant. Obviously, a sequestration order affects a defendant in a completely different way than it does a nonparty witness who presumably has no stake in the outcome of the trial. Geders v. United States, supra, 88. The sixth amendment right to counsel is “obviously in effect [during a recess], and [the defendant] may consult with his counsel during any recess so long as the orderly conduct of the trial is not impaired.” United States v. DiLapi, supra, 148; see Jackson v. United States, supra, 1205. “Lawyers in criminal cases ‘are necessities, not luxuries’ ”; United States v. Cronic, supra, 653, quoting Gideon v. Wainwright, supra, 344; and the circumstance in this case that the deprivation of the defendant’s right to counsel was briefer than in Geders does not attenuate the constitutional significance of that right.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to set aside the judgment and to order a new trial.

In this opinion F. Hennessy and Spada, Js., concurred.

1 General Statutes (Rev. to 1981) § 19-480 (a) (now General Statutes § 21a-277) provides: “penalty for illegal manufacture, distribution, sale, prescription, dispensing, (a) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance, other than marihuana, or a narcotic substance except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than three thousand dollars or be both fined and imprisoned and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than five thousand dollars, or be both fined and imprisoned.”

2 The defendant also claims that the Appellate Court erred in holding that the sequestration order applied only to a single twenty-one minute recess. The defendant argues that because the trial court did not place a time limit on the order, its effect was to prevent the defendant from consulting with his attorney about any aspect of the trial or defense strategy overnight. Because we hold that under the United States constitution it was error for the trial court to sequester the defendant from his attorney for even the twenty-one minute recess, we need not resolve this issue.

3 At that time, the following took place:

“The Court: Exception. We’ll take a short recess.

“Mr. Satti: Your Honor, prior to going out, can I get a sequestration order, which I had not asked for prior to this witness. I’d like to ask for a sequestration order.

“The Court: If there are any witnesses going to testify for the defense, then that order is effective immediately. The request is granted.

“Mr. Satti: Can I request he not talk to his counsel since I’m in the middle of cross-examination?

“The Court: You want to sequester this witness?

“Mr. Schipul: Your Honor, I would strongly object to that request inasmuch as Mr. Satti has always had the opportunity to talk to his witness at any tíme.

“The Court: The issue was never raised by you, Mr. Schipul. It’s been raised by Mr. Satti.

“I’ll grant that request, and the witness is to be sequestered.

“Mr. Schipul: I’ll take an exception.

“The Court: Exception. The Court is in recess.

(Whereupon Court recessed at 3:22 p.m. and reconvened at 3:43 p.m.)”

4 The transcript indicates that the defendant’s examination on September 6, 1984, began at 10 a.m. and finished at 11:24 a.m.

5 Because of our holding today, we need not address the claims made by the defendant under article first, § 8, of the Connecticut constitution.

6 We have said that “whether a claimed right is ‘fundamental’ lies in assessing whether that ‘right’ is explicitly or implicitly guaranteed by the constitution. [San Antonio School District v. Rodriguez, 411 U.S. 1, 34, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973)].” Frazier v. Manson, 176 Conn. 638, 646, 410 A.2d 475 (1979).

7 In Geders v. United States, 425 U.S. 80, 92, 96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976), Justice Marshall wrote a separate concurring opinion in which Justice Brennan joined. In that opinion, Justice Marshall stated: “The Court notes that this case does not involve an order barring communication between defendant and counsel during a ‘brief routine recess during the trial day.’ Ante, at 89 n.2. That is, of course, true. I would add, however, that I do not understand the Court’s observation as suggesting that as a general rule no constitutional infirmity would inhere in an order barring communication between a defendant and his attorney during a ‘brief routine recess.’ In my view, the general principles adopted by the Court today are fully applicable to the analysis of any order barring communication between a defendant and his attorney, at least where that communication would not interfere with the orderly and expeditious progress of the trial.” (Emphasis in original.)

8 The judgment of the Appellate Court in State v. Mebane, 8 Conn. App. 63, 511 A.2d 359 (1986), was announced on July 1, 1986. Crutchfield v. Wainwright was originally decided by the Eleventh Circuit Court of Appeals on October 3, 1985, and is reported in 772 F.2d 839. At that time, the case was remanded to the District Court for the purpose of determining whether the denial of access by the defendant to his attorney resulted in prejudice. On December 19, 1985, the Eleventh Circuit Court of Appeals vacated its opinion in 772 F.2d 839, and ordered that the case be reheard by it en banc. Crutchfield v. Wainwright, 779 F.2d 1466 (11th Cir. 1985). Thereafter, on November 10, 1986, the Eleventh Circuit Court of Appeals handed down its decision en banc which is reported in 803 F.2d 1103.

The en banc court of twelve was divided. One judge, writing the plurality opinion for himself and five others, said that any deprivation of assistance of counsel constituted reversible error and a new trial was required per se. Nevertheless, these six judges found no deprivation of the defendant’s right because the record did not show any objection to the court’s order or reflect a desire on behalf of the defendant to consult with his attorney. Id., 1109. Another judge, writing for himself and four other judges, eschewed orders denying access to counsel but felt that the analysis, unlike that of the plurality, should consider four relevant factors. These are: (1) the length of the recess; (2) the degree of restriction placed on the attorney-client communication; (3) the point in the proceedings at which the recess involved is taken; and (4) whether the defendant or his counsel objected and, if so, what was said. Id., 1115. These judges found no deprivation of the defendant’s right. Another judge also concurred and filed a separate opinion. Id., 1118.

In this appeal, both counsel were familiar with the en banc opinion in Crutchfield and argued it before us, both parties contending for differing interpretations of that opinion.

9 In deciding to follow the approach in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), and Crutchfield v. Wainwright, 772 F.2d 839, vacated, 779 F.2d 1466 (11th Cir. 1985), and imposing the burden upon the state, the Appellate Court stated: “This is consistent with the weight of authority which has placed upon the prosecution the burden of proving harmless error in cases where the error is of constitutional dimension. ‘The United States Supreme Court has recognized that certain constitutional protections are so central to the requirement of a fair trial that their violation absolutely requires that the conviction from which they arose be set aside. Chapman v. California, [supra, 23], In some circumstances, however, violations of other, less basic constitutional rights may be considered harmless and therefore do not compel reversal. Id., 23-24. “If error touches a less basic constitutional right, we sometimes apply the ‘harmless error’ exception, but only sparingly, in a few, discrete circumstances. State v. Zeko, 177 Conn. 545, 558, 418 A.2d 917 (1979). In such circumstances we require the state to prove the error harmless beyond a reasonable doubt.” ’ State v. Cohane, 193 Conn. 474, 484-85, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984); see State v. Burrows, 5 Conn. App. 556, 560, 500 A.2d 970 (1985).” State v. Mebane, 8 Conn. App. 63, 69-70, 511 A.2d 359 (1986).

10 We note that courts, interpreting Geders v. United States, 425 U.S. 80, 96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976), have expressly recognized the necessity of making a timely objection to an order denying consultation between a defendant and his counsel. See, e.g., Crutchfield v. Wainwright, 803 F.2d 1103, 1109-10 (11th Cir. 1986); Bailey v. State, 422 A.2d 956 (Del. 1980) (showing of prejudice required because defendant had not timely objected to restriction on communication during overnight recess); People v. Narayan, 54 N.Y.2d 106, 429 N.E.2d 123, 444 N.Y.S.2d 604 (1981) (defendant did not object to proscription on communication until morning after the order whereupon the trial court sua sponte reversed itself; thus, “any alleged interference with [the] right to consult was minimal”). Some of these courts treat the failure to object timely as a waiver by the defendant. See, e.g., Stubbs v. Bordenkircher, 689 F.2d 1205, 1207 (4th Cir. 1982), cert. denied, 461 U.S. 907, 103 S. Ct. 1879, 76 L. Ed. 2d 810 (1983); Bailey v. Redman, 657 F.2d 21, 24 (3d Cir. 1981), cert. denied, 454 U.S. 1153, 102 S. Ct. 1024, 71 L. Ed. 2d 310, reh. denied, 455 U.S. 995, 102 S. Ct. 1624, 71 L. Ed. 2d 857 (1982); United States v. Allen, 542 F.2d 630, 634 (4th Cir. 1976), cert. denied, 430 U.S. 908, 97 S. Ct. 1179, 51 L. Ed. 2d 584 (1977). In Bailey, the defense did not object or question the trial court’s instruction that the defendant not discuss his testimony with anyone before trial resumed on the following day. In that case, the Third Circuit Court of Appeals, in affirming the defendant’s conviction, found that he had not been “deprived” of his right to counsel which was a predicate to relief. Explicating that “a defendant need not disclose confidential information in order to prove that he [had] been ‘deprived’ of an opportunity to meet with counsel” but “[t]o show a ‘deprivation’ of his sixth amendment rights, a defendant must merely demonstrate that he wanted to meet with counsel, but was prevented from doing so by the court’s instruction.” Bailey v. Redman, supra, 24. Drawing on Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980), Bailey pointed out that the “distinction between the ‘deprivation’ of a right and the ‘prejudice’ that may result therefrom is not a new one. ... A showing that [a person] has been ‘deprived’ of his right to effective counsel is a predicate to relief; a showing of ‘prejudice’ is not.” Bailey v. Redman, supra. In this case, the defendant timely objected and excepted to the trial court’s order. We, therefore, need not decide whether the failure to object would require a different result.

11 The state argues that State v. Truppi, 182 Conn. 449, 438 A.2d 712, cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed. 2d 329 (1981), in which we refused to apply harmless error analysis to a burden shifting Sandstrom-type charge is distinguishable from this case. Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2540, 61 L. Ed. 2d 39 (1979). The state argues that that is so because “the effective assistance of counsel is not one of the constitutional rights whose denial will require per se reversal,” citing Morris v. Slappy, 461 U.S. 1, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983), for that statement. As we have already discussed, Slappy is inapposite to the sixth amendment claim involved in this case.

12 Later in the 1986 term, the United States Supreme Court reiterated the same purpose of the harmless error doctrine as well as its inapplicability to “some constitutional errors.” Rose v. Clark, 478 U.S. 570, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986).