S. A. v. D. G.

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S. A. v. D. G.*
(AC 42594)
Prescott, Moll and Eveleigh, Js.
Syllabus
The defendant appealed to this court from the judgment of the trial court
granting the application for a civil protection order filed pursuant to
statute (§ 46b-16a) by the plaintiff, an executive assistant to the first
selectman of a Connecticut town. On two occasions in 2018, the defen-
dant, a town resident, visited the first selectman’s office where the
plaintiff worked, and, during the second visit, the police were called
and the defendant was arrested for breach of the peace. In her applica-
tion, the plaintiff alleged that the defendant stalked her and caused her
to fear for her safety at work and at her home, and, in an accompanying
affidavit, described, how the defendant had threatened and harassed
her. Following a hearing at which the parties, the first selectman and
V, an employee of the town’s tax collector’s office testified, the trial
court found that the requirements of § 46b-16a had been satisfied, and,
therefore, it granted the plaintiff’s application and issued a protection
order. Held:
1. The defendant could not prevail on his claim that the trial court abused
its discretion by excluding evidence of certain audio and videotape
recordings that he offered at the hearing on the application for a protec-
tion order, that court having properly determined that the recordings
were not relevant to its determination of whether to grant the applica-
tion: the recording of a conversation between the defendant and the
first selectman that purportedly contained audio evidence of the first
selectman using coarse language at the town hall and calling the defen-
dant inappropriate names would not have aided the court because it
would not have made the existence of any fact material to whether the
defendant’s behavior toward the plaintiff reasonably could have caused
her to fear for her physical safety more or less probable than it would
have been without the evidence, and, to the extent that the defendant
sought to argue that the first selectman’s use of such language at his
office made it less likely that the defendant’s use of similar language
would have caused the plaintiff to fear for her safety, the defendant
never proffered that the plaintiff was present for the conversation on
the recording; moreover, the defendant failed to explain to the court
how a recording that purportedly contained evidence of an unidentified
employee of the tax collector’s office demanding that the defendant pay
$20 for his video recording was relevant, as it was not in dispute that
the defendant and the town had ongoing issues related to the defendant
paying for copies or recordings of public records, and the recording did
not purport to involve either V, who had testified at the hearing about
her encounters with the defendant, or the plaintiff; furthermore, contrary
to the defendant’s claim, the court gave the defendant every opportunity
to cross-examine witnesses, to present his own testimony, and to call any
additional witness or to offer relevant evidence in support of his defense.
2. The defendant’s claim that the trial court improperly issued the protection
order despite the fact that he was not arrested for violating any of the
statutory provisions set forth in statute (§ 54-1k) governing criminal
protective orders was unavailing; that court issued the protection order
pursuant to § 46b-16a, which contains no reference to § 54-1k, nor does
it limit the court’s authority to issue a protection order to individuals
arrested under any particular enumerated statute.
3. The defendant could not prevail on his claim that the trial court improperly
issued the protection order partly on the basis of his having videotaped
the plaintiff performing her duties as a public employee, which he
claimed did not constitute stalking because he had a legal right to do
so; contrary to the defendant’s contention, to obtain a civil protection
order pursuant to § 46b-16a on the basis of stalking, the plaintiff needed
only to allege and prove that on two occasions the defendant harassed,
surveilled or monitored her in a manner that reasonably caused her to
fear for her physical safety, and the court’s findings that the defendant
acted on two occasions in 2018, in a manner that would cause a reason-
able person to fear for their safety were not clearly erroneous, as the
plaintiff testified with respect to the 2018 videotaping incident that the
defendant had harassed her by surveilling her and aggressively placing
a video camera within one foot of her face while interrogating her about
freedom of information requirements, and such actions, when coupled
with his threatening behavior during the second 2018 encounter with
the plaintiff, were sufficient to satisfy the requirements of stalking neces-
sary to support the issuance of a protection order in this case.
4. This court declined to review the defendant’s claim that the trial court
improperly issued the protection order on the basis of actions that
implicated his exercise of his rights of free speech and access to public
records, the defendant having failed to brief the claimed constitutional
issues adequately.
5. This court declined to review the defendant’s unpreserved claim that the
trial court violated his right to due process by improperly engaging in
ex parte communications with the plaintiff, the record having been
inadequate to review that claim, as it was not adequate to ascertain
whether an ex parte communication happened at all, let alone the nature
of any such communication or its harm to the defendant.
Argued December 2, 2019—officially released June 16, 2020
Procedural History
Application for a civil protection order, brought to
the Superior Court in the judicial district of New London
and tried to the court, Hon. Emmet L. Cosgrove, judge
trial referee; judgment granting the application, from
which the defendant appealed to this court. Affirmed.
D. G., self-represented, the appellant (defendant).
Mark S. Zamarka, with whom, on the brief, was
Edward B. O’Connell, for the appellee (plaintiff).
Opinion
PRESCOTT, J. The defendant, D. G., appeals from
the judgment of the trial court granting an application
for a civil protection order filed pursuant to General
Statutes § 46b-16a1 by the plaintiff, S. A., an executive
assistant to the first selectman of a Connecticut town. In
her application, the plaintiff alleged that the defendant
stalked her and caused her to fear for her safety at
work and at home. On appeal, the defendant claims
that the court improperly (1) excluded evidence on the
ground of lack of relevance, (2) issued the protection
order despite the fact that the defendant was not
arrested for violating any of the statutory provisions
set forth in General Statutes § 54-1k,2 (3) issued the
protection order partly on the basis of the defendant’s
having videotaped the plaintiff performing her duties
as a public employee, which did not constitute stalking,
(4) issued the protection order on the basis of actions
that implicated the defendant’s exercise of free speech
and his right to access public records, and (5) engaged
in ex parte communications with the plaintiff. We dis-
agree and affirm the judgment of the trial court.
The record reveals the following relevant facts and
procedural history.3 The defendant is a town resident.
On at least two occasions, once on an unspecified date
in the summer of 2018, and again on December 26,
2018, the defendant visited the office of the town’s first
selectman where the plaintiff worked. The second visit
ended with a call to the police, who arrested the defen-
dant for breach of the peace.4
The next day, on December 27, 2018, the plaintiff
filed with the court an application for a civil protection
order. The affidavit accompanying the application
averred that the plaintiff had been working at the office
of the first selectman on December 26, 2018, when the
defendant presented himself seeking documentation
related to a proposed public safety complex in the town.
He asked the plaintiff to issue him ‘‘a waiver of fees so
that he could go to various town departments and
request information without being charged the standard
fee for copies or taking pictures/scanning information.’’
When the plaintiff informed the defendant that she was
not authorized to issue such a waiver but that she would
have the first selectman contact him to discuss the
matter, the defendant continued to demand the waiver.
The plaintiff began to ‘‘feel harassed and then threat-
ened’’ by the defendant. She asked the defendant to
leave, but he became ‘‘very agitated,’’ and began yelling,
swearing, and pointing at the plaintiff in an aggressive
manner. He called the plaintiff a ‘‘fucking retard’’ or said
she was ‘‘fucking retarded’’ approximately one dozen
times. The plaintiff became frightened and pushed a
‘‘panic button’’ on her desk, which alerted the police
department that there was a problem at the town hall.
Employees in a nearby office heard the defendant
yelling and called 911. When the defendant realized that
the plaintiff had summoned the police, he became ‘‘even
more agitated, yelling louder and continuing to call [the
plaintiff] names and pacing and moving aggressively
toward [the plaintiff],’’ pointing at her and telling her
that ‘‘it was over for [her]’’ and that he would treat
her in the same manner in the future. The defendant
eventually left the office, but the plaintiff was unsure
whether he remained elsewhere in the building and was
frightened due to the defendant’s ‘‘increasingly vio-
lent behavior.’’
The plaintiff stated in her affidavit that the defendant
had been in her office ‘‘many times in the past couple
of years.’’ She indicated that she and her coworkers felt
nervous and uncomfortable every time the defendant
visited the building. She further indicated that she was
scared that he would discover her home address and
would come to her home because he had done so in
the past to other town employees in order to demand
information about town business. The plaintiff claimed
that the defendant previously had ‘‘gotten in trouble’’
for allegedly assaulting an elderly town employee.
Although the plaintiff was unsure whether the defen-
dant owned any weapons, she averred that ‘‘he has
spoken of the fact that he is a huge supporter of the
[second] amendment so I am scared that he does have
weapons and that he will use such weapons against me.’’
The court, Hon. Emmet L. Cosgrove, judge trial ref-
eree, conducted a hearing on the application on January
7, 2019. The plaintiff was represented by counsel, and
the defendant appeared as a self-represented party. The
court first heard the testimony of the plaintiff in support
of the allegations in her application. The defendant was
permitted to cross-examine the plaintiff, although the
court required him to direct his questions to the court,
which then posed them to the plaintiff. The defendant
did not object to this procedure.
The plaintiff called as additional witnesses both the
first selectman and V, an employee of the tax collector’s
office located down the hall from the first selectman’s
office. V, who had been working at the time of the
December 26, 2018 incident, indicated that she knew
of the defendant because she had seen him at the town
hall on multiple occasions, including one time when
she had spotted him videotaping the activities of the
tax collector’s office. She testified that, on December
26, 2018, she heard the defendant cursing and screaming
at the plaintiff from down the hallway and was con-
cerned enough that she called 911.
The first selectman testified that the defendant was
a frequent visitor to the town hall and to town meetings
and that ‘‘there’s an ongoing conflict between [the
defendant] and the town no matter what the business
is.’’ The first selectman also testified that the plaintiff
was frightened of the defendant because of the Decem-
ber 26, 2018 altercation and confirmed that the defen-
dant previously had engaged in a ‘‘pushing/shoving
match’’ with another town employee at the town com-
munity center. The defendant cross-examined both V
and the first selectman.
The defendant waived his privilege against self-
incrimination5 and testified briefly on his own behalf
but did not call any other witnesses. During his direct
testimony, the defendant also sought to play and to
admit into evidence audio and/or video recordings of
interactions that he purportedly had with the first
selectman and with other town employees. The court,
after hearing the defendant’s offer of proof regarding
the content of these recordings and his reasons for
offering them, concluded that the recordings involved
matters unrelated to the issues before the court and,
thus, they were not relevant to its adjudication of the
protection order application. The court also declined
to admit into evidence a purported transcript that the
defendant had created of an audio recording he had
made of the December 26, 2018 incident. The court,
nevertheless, permitted the defendant to play the
recording in open court.6
On cross-examination by the plaintiff, the defendant
admitted that he had videotaped town employees in
the past, and it was ‘‘quite possible’’ this included the
plaintiff. He acknowledged having been asked to leave
the town hall on previous occasions. He also stated that
he understood the town’s policy with respect to copying
fees and knew that the plaintiff did not have the author-
ity to grant him a waiver.
In his closing summation, the plaintiff’s counsel
argued that all statutory requirements for the issuance
of a protection order had been met and asked the court
to order that the defendant not behave in any physically
abusive or threatening manner toward the plaintiff and
to stay away from her residence. Recognizing that the
town hall was a public building, counsel asked that
any protection order issued by the court require the
defendant to call and ‘‘make an appointment with a
specific person or department so that an escort can be
arranged to make sure that the visit goes smoothly, and
that [the defendant] does not violate, accidentally, any
orders that the court might fashion.’’
The defendant argued in his closing summation that
he read § 54-1k as limiting the court’s authority to issue
a protection order to those instances in which a person
has been arrested for violating one of the statutes enu-
merated in § 54-1k, which he noted did not include an
arrest for breach of the peace. Further, he argued that
he believed that his interactions with the plaintiff fell
‘‘under the umbrella of free speech’’ or, alternatively,
did not constitute either a threat of actual physical harm
or stalking, which he asserted was a prerequisite for
the issuance of a protection order.
On the basis of its review of the application and
accompanying affidavit, and after hearing from the par-
ties, the court found that the requirements of § 46b-16a
(a) had been satisfied. See footnote 3 of this opinion.
The court then issued the following protection order
effective for a period of one year: ‘‘[Y]ou will have to
surrender any licenses that you hold to own or possess
a firearm, or to surrender any firearms that you possess
or control. . . . [Y]ou may not threaten, harass, stalk,
interfere with, [or] abuse the [plaintiff]. . . . You must
stay away from her home, or anywhere that she may
reside . . . . In light of the fact that she works in a
public building . . . before you enter the town hall,
you must have an appointment set up with an individual
in [the] town hall ahead of time [so] that you may be
escorted to that particular town hall office. You may
contact the first selectman’s office in writing or by
e-mail or by telephone . . . . If you violate this order
. . . it is a separate crime that’s punishable by up to
five years in prison.’’ This appeal followed.7
‘‘We apply the same standard of review to civil protec-
tion orders under § 46b-16a as we apply to civil
restraining orders under General Statutes § 46b-15.
Thus, we will not disturb a trial court’s orders unless
the court has abused its discretion or it is found that
it could not reasonably conclude as it did, based on the
facts presented. . . . In determining whether a trial
court has abused its broad discretion . . . we allow
every reasonable presumption in favor of the correct-
ness of its action. . . . Appellate review of a trial
court’s findings of fact is governed by the clearly errone-
ous standard of review. . . . A finding of fact is clearly
erroneous when there is no evidence in the record to
support it . . . or when although there is evidence to
support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mis-
take has been committed. . . . Our deferential stan-
dard of review, however, does not extend to the court’s
interpretation of and application of the law to the facts.
It is axiomatic that [an issue] of law is entitled to plenary
review on appeal.’’ (Internal quotation marks omitted.)
Kayla M. v. Greene, 163 Conn. App. 493, 504, 136 A.3d
1 (2016).
I
The defendant first claims that the court abused its
discretion by excluding evidence of certain audio and
videotape recordings that he offered, even though the
court determined they did not relate to his interactions
with the plaintiff and thus were not relevant. The defen-
dant contends that this evidence was relevant to ‘‘attack
the credibility of the plaintiff’s witnesses’’ and thus the
court improperly excluded it. We are not persuaded.
The following additional facts are relevant to this
claim. After hearing from the plaintiff’s witnesses in
support of the application for a protection order, the
court asked the defendant if he had any witnesses that
he would like to call on his behalf. The defendant
responded, ‘‘Well, only myself, Your Honor.’’ After con-
ducting a canvass regarding his waiver of certain rights,
the court indicated that it was prepared to hear what
the defendant had to say. Rather than offer testimony,
however, the defendant attempted to play an audiotape.
The court indicated that it would need ‘‘some founda-
tion first’’ and asked the defendant to explain what was
on the recording. The defendant indicated that he had
a short recording of the first selectman ‘‘cursing at me
and making derogatory statements toward me.’’ The
court told the defendant that it did not know how this
was relevant to the pending application but allowed
the defendant an opportunity to persuade the court
otherwise. The defendant then argued that the
recording would demonstrate that the first selectman
had used offensive language at the office and, therefore,
the fact that the defendant called the plaintiff offensive
names could not have caused her fear as she claimed
in her application. The court then stated: ‘‘I just want
to redirect you toward the complaint that we have today
. . . . I really can’t—I take it from [the first select-
man’s] testimony that there are at least several areas
where you have some disputes with the [town] or its
employees. . . . The only one I’m concerned about
today is the dispute with the issue raised by [the plain-
tiff’s] complaint.’’ The defendant said nothing further to
press the admission of the recording of his conversation
with the first selectman. Instead, he turned to a different
recording, as reflected in the following colloquy with
the court:
‘‘[The Defendant]: Well, I think that as far as rebuttal
testimony in reference to what [V] said, I think I should
be able to provide evidence to rebut her testimony.
‘‘The Court: Okay, her testimony indicated that she
could hear you yelling and screaming in a very loud
voice using some profanity, but that she couldn’t recall
the precise words that were used while you were in
[the plaintiff’s] office on December 26th.
‘‘[The Defendant]: However, she also testified in refer-
ence to a recording in the tax collector’s office as well.
I would like to play a recording—
‘‘The Court: The video recording.
‘‘[The Defendant]: Yes, sir. I would like to—I was
also audio recording with this audio recorder; I would
like to play that and put it into evidence.
‘‘The Court: If I listen to it, what would I hear?
‘‘[The Defendant]: You would hear the tax—one of
the tax collector employees running up to me and
demanding $20 for my video recording session, and you
will understand my behavior in response to that was
mute. . . .
‘‘The Court: Okay, so you’re telling me that I would
hear that a town employee, other than [the plaintiff],
came up to you and demanded that you pay her $20
for your recording of her?
‘‘[The Defendant]: Just in the office, Your Honor, in
a public space.
‘‘The Court: Just recording in the public space.
‘‘[The Defendant]: So the whole premise—one of the
premises of the [plaintiff’s] case here is that I act inap-
propriately, that I have always—you know, it’s an esca-
lating thing. This is a most recent one in July of this
year. I think I should be able to produce evidence to
counter the claim that I’m—
‘‘The Court: The only claim that I’m really concerned
about today, and I’ve let—taken some testimony that
didn’t relate to December 26th, but relates to earlier
conduct as it relates to you and [the plaintiff].
‘‘[The Defendant]: I understand that, Your Honor.
‘‘The Court: Ms.—the other witness doesn’t have a
complaint on file today, [the first selectman] has not
filed a complaint. So I don’t think that’s going to lead
me to any relevant evidence for me to consider about
whether or not to issue a civil protection order in
this case.
‘‘[The Defendant]: Well, I would think it would go to
the veracity of the witness[es’] statements that they
make at this hearing. If she said that I was inappropri-
ate—acting inappropriately at the tax collector’s
office—
‘‘The Court: Let me just ask you this. This videotape,
this recording, is it of [V]?
‘‘[The Defendant]: No, but it relates to the testimony
that the witness gave.
‘‘The Court: Okay, I’m not going to listen to it.’’
Our standard of review regarding evidentiary rulings
is well settled. ‘‘The trial court’s ruling on evidentiary
matters will be overturned only upon a showing of a
clear abuse of the court’s discretion. . . . We will make
every reasonable presumption in favor of upholding the
trial court’s ruling, and only upset it for a manifest
abuse of discretion. . . . [Thus, our] review of such
rulings is limited to the questions of whether the trial
court correctly applied the law and reasonably could
have reached the conclusion that it did.’’ (Internal quo-
tation marks omitted.) Perez v. Minore, 147 Conn. App.
704, 709, 84 A.3d 460 (2014).
‘‘[T]he right to confront witnesses and the right to
present a defense are fundamental to a fair trial. . . .
Those rights, however, are subject to reasonable limita-
tions, such as the trial court’s right, indeed, duty, to
exclude irrelevant evidence. . . . The trial court has
wide discretion to determine the relevancy of evidence
and the scope of cross-examination. . . . [T]o estab-
lish an abuse of discretion, [the defendant] must show
that [any] restriction imposed . . . [was] clearly preju-
dicial. . . .
‘‘Relevance does not exist in a vacuum. . . . Rele-
vant evidence, according to § 4-1 of the Connecticut
Code of Evidence, is evidence having any tendency to
make the existence of any fact that is material to the
determination of the proceeding more probable or less
probable than it would be without the evidence. . . .
To determine whether a fact is material . . . it is neces-
sary to examine the issues in the case, as defined by the
underlying substantive law, the pleadings, applicable
pretrial orders, and events that develop during the trial.
Thus, the relevance of an offer of evidence must be
assessed against the elements of the cause of action,
crime, or defenses at issue in the trial. The connection
to an element need not be direct, so long as it exists.
Once a witness has testified to certain facts, for exam-
ple, his credibility is a fact that is of consequence to
[or material to] the determination of the action, and
evidence relating to his credibility is therefore rele-
vant—but only if the facts to which the witness has
already testified are themselves relevant to an element
of a crime, cause of action, or defense in the case.’’
(Citations omitted; emphasis omitted; internal quota-
tion marks omitted.) State v. Fasano, 88 Conn. App.
17, 35–37, 868 A.2d 79, cert. denied, 274 Conn. 904, 876
A.2d 15 (2005), cert. denied, 546 U.S. 1101, 126 S. Ct.
1037, 163 L. Ed. 2d 873 (2006).
Here, having reviewed the available record,8 we con-
clude that the court properly determined that the audio
and/or video recordings offered by the defendant at the
hearing were not relevant to the court’s determination
of whether to grant the application for the protection
order. The recording of the conversation between the
defendant and the first selectman purportedly con-
tained audio evidence of the first selectman using
coarse language at the town hall and calling the defen-
dant inappropriate names. The recording, even if it con-
tained what the defendant purported, would not have
aided the court because it would not have made ‘‘the
existence of any fact that [was] material to the determi-
nation of the proceeding more probable or less probable
than it would [have been] without the evidence.’’ Conn.
Code Evid. § 4-1. The issue before the court was not
the behavior of the first selectman toward the defendant
but, rather, whether the defendant’s behavior toward
the plaintiff reasonably could have caused her to fear
for her physical safety. Furthermore, to the extent that
the defendant sought to argue that the first selectman’s
use of vulgar or inappropriate language at his office
made it less likely that the defendant’s use of similar
language would have caused the plaintiff to have feared
for her safety, he never proffered that the plaintiff was
present for the conversation on the recording.9
With respect to the recording purporting to contain
evidence of an unidentified employee of the tax collec-
tor’s office demanding that the defendant pay $20 for
his video recording, the defendant failed to explain to
the court how this was relevant to the proceeding before
it. It was not in dispute that the defendant and the town
had ongoing issues related to the defendant paying for
copies or recordings of public records or other docu-
ments. The recording did not purport to involve either
V, who had testified earlier in the hearing about her
own encounters with the defendant, or the plaintiff. As
proffered by the defendant to the court, the recording
would not have aided the court in the matter before
it, and, therefore, like the other recording, the court
properly excluded it.
Contrary to the defendant’s claim, our review of the
hearing transcript shows that the court gave the defen-
dant every opportunity to cross-examine witnesses,
including to impeach their credibility; to present his
own testimony; and to call any additional witnesses or
to offer relevant evidence in support of his defense.
The defendant’s claims to the contrary simply are
unsupported by the record.
II
Next, the defendant claims that the court improperly
issued the protection order despite the fact that he
was never arrested for violating any of the statutory
provisions set forth in § 54-1k. This claim, which is
premised on a fundamental misunderstanding of the
applicable law, is entirely unavailing.
There are a number of statutory provisions granting
the court the authority to issue protective or restraining
orders. See, e.g., General Statutes § 46b-15 (family vio-
lence restraining orders); General Statutes § 46b-16a
(civil protection orders); General Statutes § 46b-38c
(family violence protective orders); General Statutes
§ 53a-40e (standing criminal protective orders); General
Statutes § 54-1k (criminal protective orders); General
Statutes § 54-82q (temporary restraining order regard-
ing witnesses); General Statutes § 54-82r (protective
orders for witnesses). Each provision contains its own
set of specific requirements and procedures.
The defendant is correct that § 54-1k governs the
issuance of criminal protective orders in cases involving
stalking, sexual assault, and risk of injury to a child,
and that it limits a court’s authority to issue a protection
order to instances in which a person has been arrested
‘‘for a violation of subdivision (1) or (2) of subsection
(a) of section 53-21, section 53a-70, 53a-70a, 53a-70c,
53a-71, 53a-72a, 53a-72b or 53a-73a, or any attempt
thereof, or section 53a-181c, 53a-181d or 53a-181e
. . . .’’10 The defendant also correctly asserts that his
arrest following the December 26, 2018 incident was
for breach of the peace in the second degree in violation
of § 53a-181, a violation that did not trigger the court’s
authority to render a protective order under § 54-1k
because breach of the peace is not among the statutory
violations enumerated in § 54-1k. Our agreement with
the defendant, however, ends there.
The court in the present case did not issue the protec-
tion order pursuant to § 54-1k, but upon consideration
of an application for a civil protection order that the
plaintiff filed pursuant to § 46b-16a. The application, a
copy of which was served on the defendant, contains
an express citation to § 46b-16a. Section 46b-16a con-
tains no reference to § 54-1k, nor does it limit the court’s
authority to issue a protection order to individuals
arrested under any particular enumerated statute.
Rather, § 46b-16a provides that a protection order is
available to ‘‘[a]ny person who has been the victim of
sexual abuse, sexual assault or stalking’’ and does not
have any requirement that the perpetrator be arrested
prior to issuance of a protection order.11
The defendant has cited to no other relevant statutory
provision or case law that supports his claim that the
restrictions of § 54-1k are applicable in the present case.
In short, the fact that the defendant was not arrested
for violating one of the statutes listed in § 54-1k did not
preclude the court from issuing the protection order in
this case, and, accordingly, we reject the defendant’s
claim.
III
The defendant next claims that the court’s decision
to issue a protection order was improper because it
was based, in part, on evidence that the defendant vid-
eotaped the plaintiff while she was in the course of
performing her duties as a public employee. According
to the defendant, because he had a legal right to act as
he did, his actions could not legally constitute stalking
as required for a civil protection order. We disagree.
We view the defendant’s claim as one that implicates
evidentiary sufficiency. ‘‘If the factual basis of the
court’s decision is challenged, our review includes
determining whether the facts set out in the memoran-
dum of decision are supported by the record or whether,
in light of the evidence and the pleadings in the whole
record, those facts are clearly erroneous. . . . More-
over, it is the exclusive province of the [court as the]
trier of fact to weigh the conflicting evidence, determine
the credibility of witnesses and determine whether to
accept some, all or none of a witness’ testimony. . . .
Thus, if the court’s dispositive finding . . . was not
clearly erroneous, then the judgment must be affirmed.’’
(Internal quotation marks omitted.) Stacy B. v. Robert
S., 165 Conn. App. 374, 386–87, 140 A.3d 1004 (2016).12
The defendant’s claim hinges on his contention that
there is no statute in this state that makes it a crime
to video record municipal employees in a public place
such as a town hall. Regardless of whether someone
legally may video record the actions of a public
employee performing his or her duties in a public set-
ting,13 the mere existence of such a right or privilege
does not automatically mean that an individual is per-
mitted to exercise that right entirely unfettered and
without adhering to reasonable legal restrictions. The
defendant, after all, was not arrested and made subject
to an application for a protection order solely on the
basis of his act of videotaping the plaintiff but because,
when doing so, he failed to comport himself in a reason-
able manner as required by law.14
The defendant argues that in order for the court to
issue a civil protection order on the basis of stalking,
the court would have had to found with respect to the
June, 2018 encounter that he had followed or laid in
wait for the plaintiff. Proof of such acts are an element
of stalking in the third degree in violation of General
Statutes § 53a-181e15 and, thus, would be necessary to
obtain a criminal conviction under that statute. Stalking
for purposes of obtaining a civil protection order, how-
ever, is sui generis, and covers a far broader range
of prohibited actions. Section 46b-16a (a) provides in
relevant part: ‘‘As used in this section, ‘stalking’ means
two or more wilful acts, performed in a threatening,
predatory or disturbing manner of: Harassing, follow-
ing, lying in wait for, surveilling, monitoring or sending
unwanted gifts or messages to another person directly,
indirectly or through a third person, by any method,
device or other means, that causes such person to rea-
sonably fear for his or her physical safety.’’ Thus,
although following and lying in wait are among the
actions that could trigger a civil protection order, the
plaintiff needed only to allege and prove that, on two
occasions, the defendant harassed, surveilled or moni-
tored her in a manner that reasonably caused her to
fear for her physical safety.
The court issued the underlying protection order on
the basis of its findings that ‘‘the defendant ha[d] acted
in two or more fashions, once in December of 2018,
and earlier that year during the summer in a fashion
that would cause a reasonable person to fear for their
physical safety.’’ We cannot conclude, on the basis of
our review of the evidence before the court, that its
findings are clearly erroneous. With respect to the vid-
eotaping incident that occurred in June, 2018, the plain-
tiff testified that the defendant had harassed her by
surveilling her and aggressively placing a video camera
within one foot of her face while interrogating her about
freedom of information requirements. Such actions,
when coupled with his threatening behavior during the
subsequent December 26, 2018 encounter with the
plaintiff, were sufficient to satisfy the requirements of
stalking necessary to support the issuance of a protec-
tion order in this case.
IV
The defendant next claims that the court improperly
issued the protection order on the basis of actions that
implicated his exercise of his rights of free speech and
access to public records. We decline to review this
claim because it is not adequately briefed.
‘‘We are not required to review issues that have been
improperly presented to this court through an inade-
quate brief. . . . Analysis, rather than [mere] abstract
assertion, is required in order to avoid abandoning an
issue by failure to brief the issue properly. . . . [Simply
put, we] do not reverse the judgment of a trial court
on the basis of challenges to its rulings that have not
been adequately briefed.’’ (Internal quotation marks
omitted.) Starboard Fairfield Development, LLC v.
Gremp, 195 Conn. App. 21, 31, 223 A.3d 75 (2019).
Our Supreme Court has recognized that adequate
briefing is of particular importance whenever the appel-
lant is asserting a violation of his first amendment rights
because of the analytical complexity of such claims.
See State v. Buhl, 321 Conn. 688, 726, 138 A.3d 868
(2016) (upholding Appellate Court’s decision not to
review first amendment and due process claims
because they were inadequately briefed). In Buhl, the
court quoted federal precedent for the proposition that
‘‘[f]irst [a]mendment jurisprudence is a vast and compli-
cated body of law that grows with each passing day
and involves complicated and nuanced constitutional
concepts.’’ (Internal quotation marks omitted.) Id., cit-
ing Schleifer v. Charlottesville, 159 F.3d 843, 871–72
(4th Cir. 1998), cert. denied, 526 U.S. 1018, 119 S. Ct.
1252, 143 L. Ed. 2d 349 (1999). In considering the ade-
quacy of briefing, it is proper for this court to consider,
among other factors, (1) whether the claim is stated
‘‘clearly and succinctly’’ such that its contours can be
understood by the court and the opposing party, (2)
the ‘‘relative sparsity’’ of any analysis, meaning how
much of the brief is dedicated to the claim, (3) whether
the analysis is ‘‘confusing, repetitive [or] disorganized,’’
and (4) whether the appellant has cited, analyzed and
applied relevant legal authority.’’ (Internal quotation
marks omitted.) State v. Buhl, supra, 726–27.16
Here, we are left to guess at the precise contours of
the defendant’s first amendment claim. It is unclear
whether the defendant is asserting that the issuance
of the protection order constitutes an unconstitutional
restriction on his future speech or conduct. Conversely,
it is not clear whether he is asserting that the issuance
of the protection order impermissibly punished him for
engaging in constitutionally protected activities.17 We
cannot define the defendant’s claim for him and will
not attempt to blindly navigate our way through the
thorny thicket of first amendment jurisprudence with
only a vague and bareboned claim to guide us.
Moreover, in the sparse briefing devoted to this claim,
the defendant cites only two cases. The defendant
makes no attempt to discuss applicable first amend-
ment jurisprudence. Despite baldly urging us to ‘‘fol-
low’’ the two decisions cited, he provides no analysis
of those cases and fails even to state how he believes
they may be applicable.18
Stated succinctly, the defendant’s analysis of his first
amendment claim is muddled, unfocused, and fails to
place his arguments into any readily discernable legal
parameters. In Stacy B. v. Robert S., supra, 165 Conn.
App. 384, this court concluded that it could not review
a first amendment challenge to a civil protection order
because ‘‘[m]any of the standards for first amendment
analysis are highly fact specific’’ and ‘‘[w]ithout ade-
quate briefing, [the court could not] determine the appli-
cable legal standard for the first amendment claim
. . . .’’ That same deficiency is present here. The defen-
dant does not directly challenge the constitutionality
of § 46b-16a, either facially or as applied, nor does he
expressly assert that the protection order issued by
the court prospectively infringes on any particular first
amendment right. To the extent he is attempting to
make such claims, however, they are inadequately
briefed and, accordingly, we decline to review them.
V
Finally, the defendant claims that the court violated
his right to due process by improperly engaging in ex
parte communications with the plaintiff. We do not
review this claim because it is unpreserved and the
record is not adequate for review.19
Judges, with limited exception, ordinarily must
refrain from engaging in ex parte contacts with parties.
See Code of Judicial Conduct, Rule 2.9.20 The defendant,
in support of his claim that such an impropriety
occurred in the present case, never raised the issue
before the trial court and does not direct us toward
any evidence in the record of an actual ex parte commu-
nication by the court. Instead, he asks us to assume
that one occurred solely on the basis of statements the
court made on the record at the hearing. We decline
the defendant’s invitation to engage in what amounts
to pure speculation.
The defendant directs our attention to the hearing
transcript and what he describes as a ‘‘ ‘smoking gun’
statement by the trial judge.’’ Specifically, he points to
the following colloquy that occurred during the plain-
tiff’s direct examination by her counsel:
‘‘[The Plaintiff’s Counsel]: All right. You mentioned
that you hit a panic button; why does the [town] have
a panic button?
‘‘[The Plaintiff]: Those panic buttons were put in so
that the employees within the town hall could alert the
police department, primarily because of [the defen-
dant’s] behavior to other people in the office.
‘‘[The Plaintiff’s Counsel]: How has he behaved
toward other people in town hall?
‘‘The Court: Listen, she doesn’t know. Call [the first
selectman], he’ll testify.’’
The defendant argues that the only way the judge
could have known that the first selectmen was at the
hearing ‘‘to give testimony as opposed to just moral
support’’ was because ‘‘the trial judge ha[d] ex parte
communications with the opposing party . . . .’’ A logi-
cal leap is necessary, however, in order to assume that
the court’s statement, without more, demonstrated the
court’s knowledge of either the first selectman’s pres-
ence in the courtroom, or, more importantly, that the
plaintiff would in fact call the first selectman to testify.
The statement, read in context, could as easily be
viewed as an expression of the court’s belief that the
first selectman would be the more appropriate person
to answer questions regarding the defendant’s past
behavior toward other town hall employees whom he
supervised.
If the defendant believed that the court’s statement
had implied some improper ex parte communication
with the plaintiff or her counsel, he could have asked
for clarification at that time, requested that the court
recuse itself, or asked that the hearing on the applica-
tion for a protection order be continued. The defendant
did none of those things.
Although an unpreserved due process claim may be
addressed by this court under the doctrine set forth in
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823
(1989), as modified by In re Yasiel R., 317 Conn. 773,
781, 120 A.3d 1188 (2015),21 such a claim necessarily
will fail if the record simply is inadequate to review
the alleged violation. Here, the record is inadequate to
ascertain whether an ex parte communication hap-
pened at all, let alone the nature of any such communi-
cation or its harm to the defendant. Accordingly, we
cannot review the defendant’s claim.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with federal law; see 18 U.S.C. § 2265 (d) (3) (2012); we
decline to identify any party protected or sought to be protected under a
protective order or a restraining order that was issued or applied for, or
others through whom that party’s identity may be ascertained.
1
General Statutes § 46b-16a provides in relevant part: ‘‘(a) Any person
who has been the victim of sexual abuse, sexual assault or stalking may
make an application to the Superior Court for relief under this section,
provided such person has not obtained any other court order of protection
arising out of such abuse, assault or stalking and does not qualify to seek
relief under section 46b-15. As used in this section, ‘stalking’ means two or
more wilful acts, performed in a threatening, predatory or disturbing manner
of: Harassing, following, lying in wait for, surveilling, monitoring or sending
unwanted gifts or messages to another person directly, indirectly or through
a third person, by any method, device or other means, that causes such
person to reasonably fear for his or her physical safety.
‘‘(b) . . . Such orders may include, but are not limited to, an order
enjoining the respondent from: (1) Imposing any restraint upon the person
or liberty of the applicant; (2) threatening, harassing, assaulting, molesting,
sexually assaulting or attacking the applicant; and (3) entering the dwelling
of the applicant.
‘‘(c) No order of the court shall exceed one year, except that an order
may be extended by the court upon proper motion of the applicant . . . .’’
2
General Statutes § 54-1k, titled ‘‘Issuance of protective orders in cases
of stalking, harassment, sexual assault, risk of injury to or impairing morals
of a child,’’ provides in relevant part: ‘‘(a) Upon the arrest of a person for
a violation of subdivision (1) or (2) of subsection (a) of section 53-21, section
53a-70, 53a-70a, 53a-70c, 53a-71, 53a-72a, 53a-72b or 53a-73a, or any attempt
thereof, or section 53a-181c, 53a-181d or 53a-181e, the court may issue a
protective order pursuant to this section . . . .’’
3
The trial court, in granting the application for a protection order, made
minimal findings of facts in its oral ruling, stating, in relevant part, the
following: ‘‘The court finds that the defendant has acted in two or more
fashions, once in December of 2018, and earlier that year during the summer
in a fashion that would cause a reasonable person to fear for their physical
safety.’’ After filing this appeal, the defendant did not file a notice pursuant
to Practice Book § 64-1, indicating that the trial court’s oral ruling failed
properly to set forth the factual and legal basis for its decision, nor did he
request an articulation in accordance with Practice Book § 66-5. In the
absence of any indication to the contrary, we infer from the court’s granting
of the application that the court credited the evidence presented at the
hearing in support of the factual allegations contained in the application,
including the relevant testimony of the plaintiff.
4
The transcript of the hearing on the protection order application shows
that the trial court took judicial notice of the defendant’s December 26,
2018 arrest and the resulting criminal action in which, according to the case
detail, the defendant was charged with breach of the peace in the second
degree in violation of General Statutes § 53a-181, a class B misdemeanor.
See Joe’s Pizza, Inc. v. Aetna Life & Casualty Co., 236 Conn. 863, 865
n.4, 675 A.2d 441 (1996) (court may take judicial notice of file in related
criminal docket).
General Statutes § 53a-181 (a) provides: ‘‘A person is guilty of breach of
the peace in the second degree when, with intent to cause inconvenience,
annoyance or alarm, or recklessly creating a risk thereof, such person: (1)
Engages in fighting or in violent, tumultuous or threatening behavior in a
public place; or (2) assaults or strikes another; or (3) threatens to commit
any crime against another person or such other person’s property; or (4)
publicly exhibits, distributes, posts up or advertises any offensive, indecent
or abusive matter concerning any person; or (5) in a public place, uses
abusive or obscene language or makes an obscene gesture; or (6) creates
a public and hazardous or physically offensive condition by any act which
such person is not licensed or privileged to do. For purposes of this section,
‘public place’ means any area that is used or held out for use by the public
whether owned or operated by public or private interests.’’
As noted by the defendant in his reply brief, however, the arrest report,
a copy of which the plaintiff included in the appendix to her appellate brief,
was not part of the record before the trial court. Accordingly, we do not
rely on that report in reviewing the trial court’s decision in this matter. See,
e.g., Li v. Yaggi, 185 Conn. App. 691, 702 n.8, 198 A.3d 123 (2018).
5
On cross-examination, when asked whether he owned any firearms,
the defendant refused to answer, citing ‘‘safety concerns.’’ After the court
indicated that safety concerns were not a privilege that it acknowledged,
the defendant stated: ‘‘Well, I would like to take the fifth amendment claim
on that.’’ The court responded: ‘‘Okay.’’
6
The content of the recording was not transcribed as part of the transcript
of the hearing on the application for a protection order, although the court
stated on the record, presumably to the court monitor: ‘‘There’s no need
for you to transcribe this, I’ll have the transcript.’’ It is unclear from this
statement whether the court intended to admit the transcript offered by the
defendant at this point, but such a ruling is not apparent from the hearing
transcript. The defendant has included what purports to be a redacted
version of this transcript as part of his appendix to his appellate brief.
7
After the appeal was filed, the defendant filed a motion with this court
that he captioned a ‘‘motion to dismiss.’’ He argued in his motion that the
plaintiff’s application for a protection order failed ‘‘to allege sufficient facts
to provide the original trial court with subject matter or personal jurisdic-
tion over [him].’’ (Emphasis added.) By way of relief, the motion asked this
court to overturn the trial court’s decision and to negate its orders. A motion
to dismiss pursuant to Practice Book § 66-8, however, is not the proper
vehicle for raising a claim that the trial court lacked jurisdiction; such a
claim is properly raised as an issue on appeal. A motion to dismiss is properly
used only to challenge the jurisdiction of the reviewing court or to assert
that an appeal is untimely or suffers from some other defect warranting a
dismissal of the appeal. Practice Book § 66-8. Accordingly, we denied the
defendant’s motion, although we did so ‘‘without prejudice to the panel that
hears the merits of the appeal considering the issues raised in the motion
to dismiss.’’ Having reviewed the defendant’s argument, we find no merit
in his assertion that the trial court lacked personal jurisdiction over him or
subject matter jurisdiction over the application for a protection order, and,
accordingly, we now reject those claims on their merits.
Additionally, after the current appeal was briefed and argued, the trial
court granted a motion filed by the plaintiff to extend the protection order.
The defendant filed an amended appeal challenging that ruling as well as
the trial court’s earlier denial of the defendant’s motion seeking a stay of
execution of the original protection order pending a final resolution of the
appeal. We ordered the amended appeal severed and treated as a separate
appeal. See S. A. v. D. G., Docket No. AC 43863 (Conn. App.) (pending
appeal filed January 7, 2020).
8
It is important to note that the defendant never sought to have any of the
recordings that he sought to admit at the hearing marked for identification
or otherwise preserved for appellate review. Accordingly, our review is
somewhat circumscribed because it is limited to a consideration of the
defendant’s proffer to the trial court.
9
Even if the defendant were able to convince us that the first selectman’s
use of coarse language toward him was relevant for the reasons he asserted
at the hearing, the defendant would also have to demonstrate that he was
harmed by the court’s refusal to admit the recording into evidence. See
Sullivan v. Metro-North Commuter Railroad Co., 292 Conn. 150, 161, 971
A.2d 676 (2009) (‘‘[E]ven if a court has acted improperly in connection
with the introduction of evidence, reversal of a judgment is not necessarily
mandated because there must not only be an evidentiary [impropriety], there
also must be harm. . . . In the absence of a showing that the [excluded]
evidence would have affected the final result, its exclusion is harmless.’’
(Citation omitted; internal quotation marks omitted.)). As the trial court
explained to the defendant at the hearing, he was free to testify about his
encounter with the first selectman and to make whatever argument to the
court he believed that testimony supported. Unless his account was some-
how contested, the recording would have been merely cumulative and its
exclusion therefore harmless.
He also could have asked the first selectman about the purported encoun-
ter during cross-examination, or recalled him as a witness. Because he never
did so, the recording was also not relevant regarding the credibility of the
first selectman as argued by the defendant on appeal, even if such extrinsic
evidence would have been admissible for that purpose. See Conn. Code
Evid. § 6-10 (c).
10
Protective orders are also authorized upon an arrest for a violation of
General Statutes § 53a-182b or 53a-183 provided that the court also finds
that ‘‘such violation caused the victim to reasonably fear for his or her
physical safety.’’ General Statutes § 54-1k (a).
11
Although not applicable here, § 46b-16a does expressly limit its applica-
tion to those persons who have not obtained any other type of protective
order arising out of the same alleged abuse, assault or stalking and who do
not qualify to seek relief under § 46b-15.
12
We note that, ‘‘[t]o the extent that our review requires us to construe
statutory provisions, this presents a legal question over which our review
also is plenary.’’ Washington Mutual Bank v. Coughlin, 168 Conn. App. 278,
288, 145 A.3d 408, cert. denied, 323 Conn. 939, 151 A.3d 387 (2016).
13
Courts in this state have not directly addressed the parameters of a
‘‘right to record’’ the public acts of public employees, including the police,
although such a right has been deemed by some federal circuit courts to
exist under the first amendment. See, e.g., Glik v. Cunniffe, 655 F.3d 78,
83 (1st Cir. 2011) (‘‘we have previously recognized that the videotaping of
public officials is an exercise of [f]irst [a]mendment liberties’’). Although
the defendant invokes the state constitution as a potential source of his
asserted right to record public officials in the course of their fulfilling their
public duties, he has not engaged in the type of independent analysis required
to obtain review of a state constitutional claim. See State v. Saturno, 322
Conn. 80, 113 n.27, 139 A.3d 629 (2016), citing State v. Geisler, 222 Conn.
672, 684–86, 610 A.2d 1225 (1992).
With respect to a first amendment right to record, the First Circuit has
stated as follows: ‘‘It is firmly established that the [f]irst [a]mendment’s
aegis extends further than the text’s proscription on laws abridging the
freedom of speech, or of the press, and encompasses a range of conduct
related to the gathering and dissemination of information. As the Supreme
Court has observed, the [f]irst [a]mendment goes beyond protection of the
press and the self-expression of individuals to prohibit government from
limiting the stock of information from which members of the public may
draw. . . . An important corollary to this interest in protecting the stock
of public information is that [t]here is an undoubted right to gather news
from any source by means within the law. . . .
‘‘The filming of government officials engaged in their duties in a public
place . . . fits comfortably within these principles. Gathering information
about government officials in a form that can readily be disseminated to
others serves a cardinal [f]irst [a]mendment interest in protecting and pro-
moting the free discussion of governmental affairs. . . . Moreover, as the
[United States Supreme] Court has noted, [f]reedom of expression has partic-
ular significance with respect to government because [i]t is here that the
state has a special incentive to repress opposition and often wields a more
effective power of suppression. . . . Ensuring the public’s right to gather
information about their officials not only aids in the uncovering of abuses
. . . but also may have a salutary effect on the functioning of government
more generally . . . .’’ (Citations omitted; internal quotation marks omit-
ted.) Glik v. Cunniffe, supra, 655 F.3d 82–83. To the extent that the defendant
claims that his first amendment rights are implicated by the issuance of a
protection order, we conclude that this claim is inadequately briefed, as
discussed in part IV of this opinion.
14
The plaintiff never disputed before the trial court or on appeal that the
defendant was a public invitee to town hall and, as such, was permitted to
be there for ‘‘a purpose for which the [building was] held open to the public.’’
(Internal quotation marks omitted.) Sevigny v. Dibble Hollow Condominium
Assn., Inc., 76 Conn. App. 306, 320, 819 A.2d 844 (2003). It was his behavior
while at town hall, not merely his presence there, that is at issue in this case.
15
General Statutes § 53a-181e (a) provides: ‘‘A person is guilty of stalking
in the third degree when such person recklessly causes another person to
reasonably (1) fear for his or her physical safety, or (2) suffer emotional
distress, as defined in section 53a-181d, by wilfully and repeatedly following
or lying in wait for such other person.’’
16
The fact that the plaintiff attempted to respond to the defendant’s first
amendment claim in her appellate brief in no way diminishes the inadequacy
of the defendant’s briefing. See State v. Buhl, supra, 321 Conn. 728–29
(‘‘appellant cannot . . . rely on the appellee to decipher the issues and
explain them to the Appellate Court’’). Rather, in some ways, the response
only highlights the problem. In her appellate brief, the plaintiff attempts to
answer the defendant’s first amendment claim by interpreting it as a claim
that the defendant’s actions did not constitute ‘‘true threats’’ and thus was
speech protected by the first amendment. See Virginia v. Black, 538 U.S.
343, 359–60, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003). The plaintiff’s analysis,
however, may be too narrow of a reading of the defendant’s claim.
17
We note that to the extent the defendant’s claim is that his constitutional
right to free speech has been violated because he is being punished for
constitutionally protected activities, he has failed to explain how the imposi-
tion of the protection order, which is strictly prospective in its scope,
amounted to a punishment for his prior acts.
18
One of the cases cited by the defendant, State v. Linares, 232 Conn.
345, 655 A.2d 737 (1995), in fact, reasonably might be viewed as undermining
the defendant’s claim. ‘‘The protections afforded by the [f]irst [a]mendment
. . . are not absolute, and we have long recognized that the government may
regulate certain categories of expression consistent with the [c]onstitution.’’
(Internal quotation marks omitted.) State v. Moulton, 310 Conn. 337, 348–49,
78 A.3d 55 (2013). ‘‘[S]o-called content-neutral time, place, and manner
regulations are acceptable so long as they are designed to serve a substantial
governmental interest and do not unreasonably limit alternative avenues of
communication.’’ (Internal quotation marks omitted.) Morascini v. Commis-
sioner of Public Safety, 236 Conn. 781, 791, 675 A.2d 1340 (1996). In Linares,
our Supreme Court upheld against a first amendment challenge the defen-
dant’s conviction for intentionally interfering with the legislative process
when she, along with other activists, unfurled a large banner during the
governor’s budget address to the state house of representatives and chanted
or shouted in loud voices. State v. Linares, supra, 353. Thus, Linares stands
for the proposition that statutory limitations on physical or verbal expres-
sions of speech, even if that speech occurs in a public forum, can be properly
restricted provided any limitations are ‘‘content-neutral, are narrowly tai-
lored to serve a significant government interest, and leave open ample
alternative channels of communication.’’ (Internal quotation marks omitted.)
Id., 367.
19
To the extent that the defendant also seeks to challenge other actions
or procedures taken by the court during the hearing, none of these additional
claims has been adequately briefed and, therefore, they are deemed aban-
doned. See Jackson v. Water Pollution Control Authority, 278 Conn. 692, 711,
900 A.2d 498 (2006) (‘‘[a]ssignments of error which are merely mentioned
but not briefed beyond a statement of the claim will be deemed abandoned
and will not be reviewed’’ (internal quotation marks omitted)).
20
Rule 2.9 of the Code of Judicial Conduct provides in relevant part: ‘‘(a)
A judge shall not initiate, permit or consider ex parte communications, or
consider other communications made to the judge outside the presence of
the parties or their lawyers, concerning a pending or impending matter,
except as follows:
‘‘(1) When circumstances require it, ex parte communications for schedul-
ing, administrative, or emergency purposes, which does not address substan-
tive matters, is permitted, provided:
‘‘(A) the judge reasonably believes that no party will gain a procedural,
substantive, or tactical advantage as a result of the ex parte communica-
tion; and
‘‘(B) the judge makes provision promptly to notify all other parties of the
substance of the ex parte communication and gives the parties an opportu-
nity to respond. . . .’’
21
‘‘Under this familiar test, [a] defendant can prevail on a claim of constitu-
tional error not preserved at trial only if all of the following conditions are
met: (1) the record is adequate to review the alleged claim of error; (2) the
claim is of constitutional magnitude alleging the violation of a fundamental
right; (3) the alleged constitutional violation . . . exists and . . . deprived
the defendant of a fair trial; and (4) if subject to harmless error analysis,
the state has failed to demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt. In the absence of any one of these
conditions, the defendant’s claim will fail. The appellate tribunal is free,
therefore, to respond to the defendant’s claim by focusing on whichever
condition is most relevant in the particular circumstances.’’ (Emphasis in
original; internal quotation marks omitted.) State v. Dunbar, 188 Conn. App.
635, 644–45, 205 A.3d 747, cert. denied, 331 Conn. 926, 207 A.3d 27 (2019).