STATE OF CONNECTICUT v. FERNANDO A.*
(SC 18045) (SC 18103)
Supreme Court of Connecticut
Argued March 12, 2008 officially released November 3, 2009
Rоgers, C. J., and Norcott, Palmer, Vertefeuille, Zarella, Schaller and McLachlan, Js.¹
* In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to identify the victims or others through whom the victims’ identities may be ascertained. See
¹ This case originally was argued before a panel of this court consisting of Justices Norcott, Palmer, Vertefeuille, Zarella and Schaller. Thereafter, the court, pursuant to Practice Book § 70-7 (b), sua sponte, ordered that the case be considered en banc. Accordingly, Chief Justice Rogers and Justice McLachlan were added to the panel, and they have read the record, briefs and transcript of oral argument.
The listing of justices reflects their seniority status as of the date of oral argument.
Robert J. Scheinblum, senior assistant state‘s attorney, with whom, on the brief, were David I. Cohen, state‘s attorney, Kevin J. Dunn, assistant state‘s attorney, and David R. Applegate, deputy assistant state‘s attorney, for the appellee (state).
Richard Blumenthal, attorney general, and Jane R. Rosenberg and Susan Quinn Cobb, assistant attorneys general, filed a brief for the department of children and families as amicus curiae.
Hakima Bey-Coon filed a brief for the office of the victim advocate as amicus curiae.
Daniel J. Foster filed a brief for the American Civil Liberties Union Foundation of Connecticut as amicus curiae.
Anne C. Dranginis and Proloy K. Das filed a brief for the Connecticut Coalition Against Domestic Violence as amicus curiae.
Opinion
NORCOTT, J. In this public interest appeal, we consider the nature of the hearing that a defendant must receive prior to the issuance of a criminal protective order in a family violence case (criminal protective order) pursuant to
The record reveals the following undisputed facts and procedural history. The defendant and his wife are involved in divorce proceedings. On October 14, 2007, the defendant was arrested on numerous family violence criminal charges arising from an incident wherein he allegedly had assaulted his wife.5 Pursuant to
On appeal, the defendant contends, inter alia, that the trial court improperly failed to conduct an evidentiary hearing prior to issuing a criminal protective order because
In response, the state contends that criminal protective orders arise from bail or pretrial release proceedings that do not by themselves require an evidentiary hearing. The state also argues that, when the legislature enacted No. 07-123, § 1, of the 2007 Public Acts (P.A. 07-123), which amended
“When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . In seeking to determine that meaning,
We begin with the text of
The text of
Subsection (d) of
Similar to
The legislative history of both
The legislative history of the cross-referenced
Other factors, however, lead us to conclude that the legislature did not
Thus, it is significant that the language of
We also are “guided by the principle that the legislature is always presumed to have created a harmonious and consistent body of law . . . . [T]his tenet of statutory construction . . . requires us to read statutes together when they relate to the same subject matter . . . . Accordingly, [i]n determining the meaning of a statute . . . we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction. . . . Where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject . . . is significant to show that a different intention existed. . . . That tenet of statutory construction is well grounded because [t]he General Assembly is always presumed to know all the existing statutes and the effect that its action or non-action will have upon any one of them.” (Citations omitted; internal quotation marks omitted.) Hatt v. Burlington Coat Factory, 263 Conn. 279, 310, 819 A.2d 260 (2003).
A review of other criminal procedure statutes demonstrates that, when the legislature has desired to impose specific requirements on the conduct of a pretrial hearing, it has said so explicitly. For example,
Moreover, our construction of
We agree, however, with the defendant‘s claims that the extended effects of that initial emergency order may well cause a defendant significant pretrial deprivations of family relations and/or property.18 This concern, and the legislature‘s desire to satisfy the defendant‘s due process rights under the
With respect to the type of proof required at this subsequent hearing, we further conclude that, inasmuch as the legislature has not required the introduction of evidence that conforms strictly with the rules of evidence; see In re Ralph M., supra, 211 Conn. 307; the state may, consistent with the defendant‘s federal due process rights, proceed by proffer, supported by reliable hearsay evidence, and the trial court retains the discretion to determine whether testimony from the complainant or other witnesses is necessary for the order to continue.21 Cf. United States v. LaFontaine, 210 F.3d 125, 130-32 (2d Cir. 2000) (government may proceed by proffer, and defendant‘s right to call government witness at hearing to revoke bail based on witness intimidation lies within discretion of trial court); United States v. Smith, 79 F.3d 1208, 1210 (D.C. Cir. 1996) (defendant‘s sixth amendment confrontation rights were not violated when government proceeded by proffer at preventive detention hearing, and defendant‘s due process rights were protected by right to counsel, to testify in his own behalf and to proffer testimony of others);
Indeed, requiring the evidence admitted at this subsequent hearing to comply with the rigors of the rules of evidence would be inconsistent with other relevant legislation governing pretrial hearings in criminal cases, including
Accordingly, we conclude that
tled to the opportunity to request, and to receive, an evidentiary hearing as described in the preceding paragraph about the continued necessity of the criminal protective order.
Although we acknowledge the importance of preservation requirements to an orderly system of appellate review, it appears that Justice Palmer would conclude that a reviewing court may consider only those specific arguments made before the trial court on the given issue, namely, what type of hearing is required under
In our view, a more functional approach to preservation acknowledges the tension that exists between decision making by busy trial courts, which, as Justice Schaller acknowledges, frequently must occur at a rapid pace, and decision making by appellate courts, which often have available to them the luxury of a more comprehensive briefing process, as well as ample time to engage in a more thorough argument, research and writing process prior to issuing an opinion.
The order in Docket No. SC 18103 is affirmed. The order in Docket No. SC 18045 is reversed and the case is remanded for further proceedings in accordance with the preceding paragraph.
In this opinion ROGERS, C. J., and VERTEFEUILLE, ZARELLA and McLACHLAN, Js., concurred.
SCHALLER, J., concurring and dissenting. I disagree with the majority that
In accordance with existing practice pursuant to
Depending on the trial court‘s discretion, the defendant may be allowed to testify and present witnesses. The defendant‘s only unconditional right, aside from cross-examining state‘s witnesses, is to proffer relevant evidence, not to present it. In sum, under the new rule created by the majority, the defendant has no federal constitutional or state statutory right to an evidentiary hearing. In other words, according to the majority, neither due process nor the relevant statutes—
Assuming that my understanding of the majority opinion is correct, my disagreement is limited to the following points. The decision to create a special hearing, to which defendants who are charged with the commission of a family violence crime are entitled upon request, is: (1) inconsistent
I
The only question raised in the defendant‘s statutory claim is the meaning of the word “hearing” as used in
plea, appointment of counsel, short motions and bail modifications, among others. In small geographical areas, one judge might handle the entire criminal docket, including these matters. In large geographical areas, one of several judges assigned to criminal matters may deal with the arraignment docket. At the opening of court, the arraignment judge advises the defendants who are scheduled to be arraigned that day of their rights and then arraigns each defendant individually. At some point during this busy session, which takes place so soon after the defendant‘s arrest, a defendant arrested on a family violence charge is given the hearing to which he is entitled under
The majority‘s own statutory analysis lends further support to this conclusion. The majority correctly points out that a defendant who wishes to challenge a protective order that is issued following a hearing pursuant to
The majority makes two additional points that support the conclusion that the plain and unambiguous meaning of
Second, the majority points out that in other criminal statutes, when the legislature has intended to impose specific procedural requirements in the context of a pretrial hearing, it has done so explicitly. See, e.g.,
The majority, despite the dictates of
Specifically, in support of this entirely new rule, purportedly arrived at through the process of statutory interpretation—a process that, by the majority‘s own admission, when applied to the statutory language itself, yields the conclusion that the legislature intended to impose no procedural requirements on the arraignment hearing guaranteed by
Based on the majority‘s single justification for its statutory interpretation, I can conclude only that, without directly saying so, the majority, in actuality, grounds its conclusion not on a statutory analysis, but on an implicit determination that due process requires the creation of this new right to an expanded, second hearing. I therefore turn to the question of whether the defendant is entitled pursuant to his right to procedural due process to more than is statutorily mandated by
II
The United States Supreme Court, in determining whether an individual‘s right
Although this court has in the past unquestioningly applied the Mathews test in the criminal context; see, e.g., State v. Patterson, 236 Conn. 561, 572-76, 674 A.2d 416 (1996) (applying Mathews test to conclude that there is no federal due process right to presentence investigation report); State v. Lopez, 235 Conn. 487, 493-97, 668 A.2d 360 (1995) (applying Mathews factors in concluding no per se right to evidentiary hearing on state‘s motion to rectify transcript); State v. Joyner, 225 Conn. 450, 471, 625 A.2d 791 (1993) (Mathews test applicable to due process issues under state constitution); see also State v. Kelly, 256 Conn. 23, 85, 770 A.2d 908 (2001) (citing Mathews, but not applying balancing test to claim that trial court improperly denied defendant‘s parents and fiancée opportunity to speak at his sentencing in violation of his constitutional rights to due process and effective assistance of counsel); State v. Misiorski, 250 Conn. 280, 294-96, 738 A.2d 595 (1999) (Berdon, J., dissenting) (applying Mathews factors in concluding that judicial hearing is required before probation officer may disclose defendant‘s criminal record to community pursuant to Megan‘s Law,
In Patterson v. New York, supra, 432 U.S. 201, the United States Supreme Court had rejected the claim that allocating to the defendant, who had been charged with murder, the burden of proving the affirmative defense of extreme emotional disturbance by a preponderance of the evidence, violated the defendant‘s right to procedural due process as guaranteed by the fourteenth amendment. Id. In the arena of criminal law, the court observed, “[t]raditionally, due process has required that only the most basic procedural safeguards be observed; more subtle balancing of society‘s interests against those of the accused have been left to the legislative branch.” Id., 210. In addressing the defendant‘s claim that the burden allocation violated his right to procedural due process, the court examined the historical origins and development of the rule, stating that a state‘s decision regarding how to “regulate procedures under which its laws are carried out . . . is not subject to proscription under the [d]ue [p]rocess [c]lause unless it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”12
Adopting the Patterson analytical framework in Medina, the court considered the defendant‘s claim that the allocation to him of the burden to prove his incompetence to stand trial, by a preponderance of the evidence, violated his right to due process. Medina v. California, supra, 505 U.S. 439. The court concluded, on the basis of its review of the “historical treatment of the burden of proof in competency proceedings,” that the allocation of the burden to the defendant did not offend a fundamental principle of justice. Id., 446. In analyzing the historical basis of the claimed right, the court noted that there was, in fact, “no settled tradition on the proper allocation of the burden of proof in a proceeding to determine competence.” Id.
The United States Supreme Court subsequently has reinforced its declaration in Medina that the applicable rule in the criminal context is not the Mathews balancing test, but rather the Patterson historical basis test. In Montana v. Egelhoff, 518 U.S. 37, 43, 116 S. Ct. 2013, 135 L. Ed. 2d 361 (1996) (plurality opinion), the United States Supreme Court considered the defendant‘s claim that his “right to have a jury consider evidence of his voluntary intoxication in determining whether he possesse[d] the requisite mental state is a fundamental principle of justice.” (Internal quotation marks omitted.) The court explained that in applying the Patterson test: “Our primary guide in determining whether the principle in question is fundamental is, of course, historical practice.” Id. The court then looked to the historical roots of the asserted right, citing as far back as English common law. Id., 44. In the course of its analysis, the court clarified that “[i]t is not the [s]tate which bears the burden of demonstrating that its rule is deeply rooted, but rather [the] respondent who must show that the principle of procedure violated by the rule (and allegedly required by due process) is so rooted in the traditions and conscience of our people as to be ranked as fundamental.” (Emphasis in original; internal quotation marks omitted.) Id., 47. The court considered the more modern permutation of the rule, which allows for an exception admitting evidence of intoxication with respect to an offense that requires a specific intent, but concluded, “[a]lthough the rule allowing a jury to consider evidence of a defendant‘s voluntary intoxication where relevant to mens rea has gained considerable acceptance, it is of too recent vintage, and has not received sufficiently uniform and permanent allegiance, to qualify as fundamental . . . .” Id., 51. Significantly, and consistent with Medina and Patterson, the court did not engage in any type of balancing inquiry in resolving the defendant‘s claim.
Federal courts consistently have applied the Patterson test to due process challenges of state rules of criminal procedure. See, e.g., Bey v. Bagley, 500 F.3d 514, 521-23 (6th Cir. 2007) (dеnying defendant‘s due process challenge to state‘s procedural rule allowing evidence of other crimes under identity exception; defendant failed to show that claimed violation fell under narrow category of procedural rules that offended deeply rooted principle of justice); Lannert v. Jones, 321 F.3d 747, 754 (8th Cir.) (concluding that asserted right to have battered spouse syndrome evidence considered by jury in connection with defense of self-defense was not “‘fundamental principle of justice‘” and finding no violation of procedural due process), cert. denied, 540 U.S. 917, 124 S. Ct. 307, 157 L. Ed. 2d 212 (2003); Hines v. Miller, 318 F.3d 157, 161-62 (2d Cir.) (after noting that District Court improperly applied Mathews balancing test instead of Patterson test, finding no historical basis for claimed right to evidentiary hearing on motion to withdraw guilty plea, and, therefore, no constitutional right to evidentiary hearing), cert. denied, 538 U.S. 1040, 123 S. Ct. 2089, 155 L. Ed. 2d 1075 (2003). The more narrow recognition of rights in the criminal context is due to the fact that “[t]he [b]ill of [r]ights speaks in explicit terms to many aspects of criminal procedure, and the expansion of those constitutional guarantees under the open-ended rubric of the [d]ue [p]rocess [c]lause invites undue interference with both considered legislative judgments and the careful balance that the [c]onstitution strikes between liberty and order.” (Emphasis added.) Medina v. California, supra, 505 U.S. 443.
The present statutory scheme challenged by the defendant, which entitles a family violence defendant only to notice and a hearing at the time of arraignment, at which the defendant has the right to be heard, reflects the very type of careful balancing of society‘s interests—in this context, the interest in protecting victims of family violence from further intimidation and abuse—against the rights of the accused that Patterson deemed to be appropriately the province of state legislatures. Patterson v. New York, supra, 432 U.S. 210. Section
The defendant specifically seeks a full evidentiary hearing to allow him to challenge the imposition of nonfinancial conditions of release. The majority concludes that, although the defendant does not have a procedural due process right to a full evidentiary hearing, he is entitled to the newly defined, expanded, second hearing. The challenged procedural rule is the failure to require more than a brief hearing at which the defendant is not permitted to present evidence; the affected principle of justice is the right to pretrial release absent the imposition of nonfinancial conditions. The historical basis inquiry properly should examine whether the principle of justice that the defendant claims is “offended” by the state‘s procedural rule is so deeply rooted in our traditions that it is deemed a fundamental principle of justice. Not only does the defendant fail to make any showing that the state procedural rules—which do not require the trial court to hold a full evidentiary hearing following the issuance of a protective order as a condition of his release—violate a fundamental principle of justice, the defendant does not even cite to Medina or Patterson. The defendant instead relies on the Mathews balancing test, a test that, as I already have noted, is not even applicable in this context. The defendant, therefore, fails
III
Finally, I explain the various prudential and policy reasons that persuade me to conclude that the majority‘s decision is both imprudent and unnecessary. Specifically, the new rule announced by the majority today is: (1) unfair to defendants in other criminal cases, because it singles out family violence defendants for special treatment; (2) unwise, because it does not take into account the special vulnerability of victims of family violence and undermines the efforts that the legislature has made to protect these victims; (3) unworkable, because it burdens already busy trial courts and provides only conflicting and confusing guidance; and (4) unnecessary, because trial courts already have the discretion to order, on a case-by-case basis, what the majority now holds is the defendant‘s right upon request.
A
The majority‘s decision is unfair to other criminal defendants because no such procedure is extended to them in connection with bail, the denial of which is a more serious deprivation than that suffered by family violence defendants who are released subject to a protective order. Put another way, the effect of the majority‘s decision is to create a privileged status for family violence defendants, even though they may suffer deprivations far less severe than other criminal defendants. I cannot envision any reason why they should be given such privileged status. I see no reason, in fact, why all criminal defendants should not have the same right. Neither
B
The decision is unwise policy because the victims in these cases, who are recognized by our legislature as suffering a unique kind of vulnerability and as needing special protection, are now exposed to the likelihood of examination and cross-examination during an early stage of the proceedings, the net effect of which will be likely to intimidate them and even discourage prosecution of family violence cases.14
The threat that this careful balance may be undermined is not an insignificant one. If the state believes that the order protecting the victim is in jeopardy, and opts to put the victim on the stand, the compelling policy reason for protecting family violence victims will be severely compromised. Defendants may cross-examine the victims but are likely to choose not to testify. The procedure would then become simultaneously a means by which defendants could intimidate victims with the aim of preventing them from proceeding with the prosecution, a real risk in family violence cases, and a “discovery vehicle” for the benefit of defendants. Defendants could, in fact, proffer highly damaging challenges to victims’ stories, thereby virtually compelling the state to call victims in order to prove the necessity of continuing the order. Ironically, no other crime victims are placed at such a risk that they may be compelled to take the witness stand and face cross-examination by the accused at such an early stage of a criminal case.
C
The creation of the second, expanded hearing encumbers the criminal justice system by imposing burdensome and confusing duties on busy trial judges, yet provides only confusing guidance to assist the trial judges in complying with the new rule. Specifically, the framework created by the majority consists of a combination of specific instructions and general, unspecific requirements. For example, a specific fair preponderance standard is prescribed, but it is to be applied to a mix of proffers. Such proffers include “reliable hearsay,” an undefined term, other material that may be beyond the rules of evidence, and, presumably, argument. In short, for every instruction given, new questions arise. In my view, little if anything is gained by the process of attempting to give a few structural details for governing a vague and unspecified discretionary procedure.
I provide a few, brief examples of some of the difficulties that may arise as a result of this new rule. At arraignment, the court must comply with the initial hearing requirement, but also must respond to a request by the defendant for a second hearing by providing such a hearing within a reasonable time. It is unclear whether the court must inform the defendant, during the first hearing, of his right to a second hearing. Also unclear is what constitutes a reasonable time. Presumably, that determination is left to the discretion of the trial court. Suppose the state is ready to make “proffers” based on its file at the time of arraignment—would the trial court have discretion to hold the expanded hearing then and there, or may the defendant demand time to prepare for his “proffers?”
D
The decision is unnecessary because trial courts already have similar discretion in deciding whether to issue such orders. Under the new procedure, the trial court has complete discretion over reasonable scheduling, the scope of the expanded hearing, the information that may be submitted and the appropriate relief. This differs in small measure, if at all, from present procedure, except as to outlining some of the structural steps and areas of discretion. If the trial courts choose to apply this procedure in most cases based on no more than offers of proof, defendants will gain little that is not available with the present discretionary procedure, other than having a second hearing at which they can make proffers as well. In short, trial courts already appear to have the discretion to do all that is provided by the new hearing procedure with no more uncertainty than presently exists.
In summary, the newly created procedure in my view accomplishes little, risks a great deal for victims, and may significantly burden already overcrowded dockets. It singles out a particular class of criminal defendants for a special procedure that establishes a right of uncertain dimension. My hope is that the trial courts will exercise their discretion cautiously and wisely in weighing the proffers of “evidence” and in protecting the victims in these cases in the course of determining whether an order should be issued. I believe that the United States Supreme Court wisely recognized in Patterson that, in the area of criminal law, the legislature is in the best position to engage in the “subtle balancing” of society‘s interests in safety against the rights of defendants. Patterson v. New York, supra, 432 U.S. 210. The
majority‘s decision today changes the balance that the legislature deemed to be the appropriate one, and it is the duty of the trial courts—and I do not deem this to be an insurmountable task, by any means—to ensure that the delicate balance that had been arrived at by the legislature is not thereby disturbed.
For the foregoing reasons, I respectfully dissent.
PALMER, J., dissenting in part. Under
release. As the majority acknowledges, the sole claim that the defendant, Fernando A., raised in the trial court, and the sole claim that he raises on appeal, is that the term “hearing,” as used in
I
Before addressing the merits of the defendant‘s claims, it is necessary to underscore certain aspects of the history and substance of the statutory scheme at issue in this case. In 1986, the legislature enacted Public Acts 1986, No. 86-337, entitled “An Act Concerning Family Violence Prevention and Response,” § 3 of which is now codified as amended at
include provisions necessary to protect the victim from threats, harassment, injury or intimidation by the defendant, including, but not limited to, an order enjoining the defendant from (1) imposing any restraint upon the person or liberty of the victim, (2) threatening, harassing, assaulting, molesting or sexually assaulting the victim, or (3) entering the family dwelling or the dwelling of the victim. . . . Such order shall be made a condition of the bail or release of the defendant . . . .” Although subsection (e) of
In 2007, the legislature passed Public Acts 2007, No. 07-123 (P.A. 07-123), entitled “An Act Concerning Domestic Violence,” which amended, among other statutes, General Statutes (Rev. to 2007) § 54-63c. The primary purpose of the amendment to General Statutes (Rev. to 2007) § 54-63c was to protect the safety of victims of family violence by authorizing the police to order the release of a person charged with the commission of a family violence crime with nonfinancial conditions that “may require that the arrested person do one or more of the following: (1) Avoid all contact with the alleged victim of the crime, (2) comply with specified restrictions on the person‘s travel, associаtion or place of abode that are directly related to the protection of the alleged victim of the crime, or (3) not use or possess a dangerous weapon, intoxicant or controlled substance.” P.A. 07-123, § 1, codified at
remain in effect until the arrested person is presented before the Superior Court pursuant to subsection (a) of section 54-1g. On such date, the court shall conduct a hearing pursuant to section 46b-38c at which the defendant is entitled to be heard with respect to the issuance of a protective order.” P.A. 07-123, § 1, codified at
II
With this statutory background in mind, I now turn to the relevant undisputed facts and procedural history, some of which are set forth in the majority opinion. On August 8, 2007, the victim, who is the defendant‘s wife, filed an action seeking to dissolve her marriage to the defendant. At that time, the couple lived together with their two children, ages four and two. On August 27, the victim, in accordance with
At the conclusion of the hearings, the trial court declined to extend the protective order, concluding that the victim‘s allegations did not meet the stringent requirements of
count or discredit the victim‘s testimony but found that the incidents about which the victim had testified were primarily verbal in nature and did not rise to the level of “a continuous threat of present physical pain or physical injury” within the meaning of
Several weeks later, on October 14, 2007, the police were called to the home shared by the victim and the defendant. According to the victim, who exhibited “a large golf ball sized bump” on her forehead, she and the defendant had had an argument during which the defendant pushed her down a flight of stairs and kicked her in the head. The couple‘s two children witnessed the victim‘s fall. After the incident, the defendant left the residence in his vehicle. The police called an ambulance to take the victim to the hospital, where she was treated for contusions on her head and knee. After taking a sworn statement from the victim and interviewing the victim‘s treating physician, the police arrested the defendant and charged him with assault in the third degree, two counts of risk of injury to a child, reckless endangerment and disorderly conduct. In accordance with
The defendant was arraigned the next day, October 15, 2007. At that time, he requested a full evidentiary hearing prior to the issuance of any protective order, claiming that such a hearing was mandated both by
children, a request with which the victim‘s advocate and the family
At the hearing on October 18, 2007, before the court, Bingham, J., the defendant again claimed that he was entitled to a full evidentiary hearing—or what defense counsel referred to as a “trial-like” proceeding—for the purpose of challenging the issuance of the protective order. Judge Bingham denied the defendant‘s request for such a hearing, explaining that the defendant was “not entitled to a full hearing, with the right to subpoena witnesses and the right to call the [victim]. This puts an undue burden on the [victim] because she . . . evidently . . . is afraid of the [defendant] . . . . And you‘re not entitled to a full trial here in this court.” Thereafter, Judge Bingham explained that the hearing contemplated under
tion on which the court had relied in issuing the family violence protective order was inaccurate or incorrect. The sole claim that the defendant raised, rather, was that he had a statutory and due process right to a full evidentiary hearing, at which (1) the state was required to establish the need for a protective order through the use of evidence that satisfied our evidentiary rules, and (2) the defendant had the right to cross-examine and call witnesses.
In these consolidated appeals from the decisions of the trial court, Pavia, J., and Bingham, J., the defendant claims that the court violated his right to due process and his rights under
The majority rejects the defendant‘s claim that he is entitled to a full evidentiary hearing. Specifically, the majority concludes that ”
subsequent hearing within a reasonable period of time at which the state will be required to prove the continued necessity of that order by a fair preponderance of the evidence, which may include reliable hearsay.” The majority also concludes, as a matter of statutory construction, that the defendant does not have the right at that hearing either to require the state to proceed by way of admissible evidence or to subpoena the victim or other witnesses; according to the majority, however, he does have a qualified right to testify himself and to adduce other testimony. Finally, the majority reverses the decision of the trial court “[b]ecause the defendant did not receive this subsequent hearing as requested . . . .”
For the reasons that follow, I agree with the majority that the defendant is not constitutionally entitled to a full evidentiary hearing. Because there is nothing in the relevant statutes or legislative history to suggest that the defendant has a statutory right to a full evidentiary hearing, I also agree that the defendant has no such entitlement. I disagree, however, with the majority‘s conclusion that the hearing to which the defendant is entitled under our statutory scheme is different from a bail hearing.8 Furthermore, because the majority agrees with the trial court‘s decision to reject the only claim
that the defendant raised, namely, that he has a statutory and constitutional right to a full evidentiary hearing, the majority‘s reversal of the decision of the trial court, Bingham, J., is improper even under its own flawed conclusion regarding the nature of the hearing to which the defendant is entitled.
III
As I have indicated, the defendant claims on appeal, as he claimed in the trial court, that whatever hearing rights he may be afforded under
Both the state and the defendant utilize the balancing test set forth by the United States Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), for determining whether a governmental practice or procedure
more fully hereinafter, the defendant cannot prevail under either of the two tests.9
In Mathews, the court explained that “[d]ue process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. . . . [D]ue process is flexible and calls for such procedural protections as the particular situation demands. . . . Accordingly, resolution of the issue whether the administrative procedures provided . . . are constitutionally sufficient requires analysis of the governmental and private interests that are affected. . . . More precisely, our prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the [g]overnment‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” (Citations omitted; internal quotation marks omitted.) Mathews v. Eldridge, supra, 424 U.S. 334-35. Although Mathews arose out of a dispute concerning the adequacy of the administrative procedures afforded a recipient of social security disability benefit payments prior to the termination of those benefits; see id., 323-26, 332-33; both this court and the Appellate Court have applied that test in criminal cases. See, e.g., State v. Patterson, 236 Conn. 561, 569-76, 674 A.2d 416 (1996) (applying Mathews test and concluding that criminal
defendant‘s federal constitutional right to procedural due process at sentencing does not include right to presentence investigation report); State v. Lopez, 235 Conn. 487, 492-93, 496-97, 668 A.2d 360 (1995) (applying Mathews test and concluding that trial court‘s order rectifying transcript without evidentiary hearing did not violate criminal defendant‘s federal constitutional right to procedural due process); State v. Washburn, 34 Conn. App. 557, 564-66, 642 A.2d 70 (1994) (applying Mathews test and concluding that requirements of federal due process are not violated by imposition of mandatory minimum thirty day jail sentence against criminal defendant who drove vehicle during summary twenty-four hour suspension period applicable to persons arrested for operating under influence of alcohol), cert. denied, 230 Conn. 912, 645 A.2d 1017 (1994); cf. State v. Joyner, 225 Conn. 450, 471, 625 A.2d 791 (1993) (“[b]orrowing the methodology of Mathews” in concluding that requiring criminal defendant to prove his insanity defense by preponderance of evidence does not violate state constitutional right to due process).
Following its decision in Mathews, however, the United States Supreme Court, in Medina, addressed a claim that principles
tency hearing ‘must be regarded as part of the proceedings in the criminal case‘) . . . cert. denied, 382 U.S. 858 [86 S. Ct. 113, 15 L. Ed. 2d 95] (1965).
“In the field of criminal law, we ‘have defined the category of infractions that violate “fundamental fairness” very narrowly’ based on the recognition that, ‘[b]eyond the specific guarantees enumerated in the [b]ill of [r]ights, the [d]ue [p]rocess [c]lause has limited operation.’ . . . The [b]ill of [r]ights speaks in explicit terms to many aspects of criminal procedure, and the expansion of those constitutional guarantees under the open-ended rubric of the [d]ue [p]rocess [c]lause invites undue interference with both considered legislative judgments and the careful balance that the [c]onstitution strikes between liberty and order.” (Citations omitted.) Medina v. California, supra, 505 U.S. 443.
The court further explained that “[t]he proper analytical approach . . . is that set forth in Patterson v. New York, [supra, 432 U.S. 201-202], which was decided one year after Mathews. In Patterson, [the court] rejected a due process challenge to a New York law [that] placed on a criminal defendant the burden of proving the affirmative defense of extreme emotional disturbance. Rather than relying [on] the Mathews balancing test, however, [the court] reasoned that a narrower inquiry was more appropriate: ‘It goes without saying that preventing and dealing with crime is much more the business of the [s]tates than it is of the [f]ederal [g]overnment . . . and that we should not lightly construe the [c]onstitution so as to intrude [on] the administration of justice by the individual [s]tates. Among other things, it is normally “within the power of the [s]tate to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion,” and its decision in this regard is not subject to proscription under the [d]ue [p]rocess [c]lause unless “it offends some principle of justice so
rooted in the traditions and conscience of our people as to be ranked as fundamental.“’ . . . As Patterson suggests, because the [s]tates have considerable expertise in matters of criminal procedure and the criminal process is grounded in centuries of common-law tradition, it is appropriate to exercise substantial deference to legislative judgments in this area. The analytical approach endorsed in Patterson is thus far less intrusive than that approved in Mathews.” (Citations omitted.) Medina v. California, supra, 505 U.S. 445-46.
A threshold issue, therefore, is whether the Mathews test or the Medina test applies to the determination of whether the trial court properly concluded that the defendant was not entitled to a full evidentiary hearing for the purpose of challenging the issuance of the protective order barring him from the family home during the pendency of his criminal case. The answer to this question hinges on whether
Although it is true, of course, that
In the first of these cases, Hines v. Miller, 318 F.3d 157 (2d Cir.), cert. denied, 538 U.S. 1040, 123 S. Ct.
2089, 155 L. Ed. 2d 1075 (2003), the court affirmed the judgment of the District Court, which denied the petition for a writ of habeas corpus of Jesse Hines, who had alleged, inter alia, that he was denied due process when the New York state trial court declined to order an evidentiary hearing on his motion to withdraw his guilty plea to second degree murder. Id., 158-59, 164. The Court of Appeals concluded that, although the District Court properly had denied Hines’ habeas petition, the District Court improperly had used the Mathews balancing test in doing so. Id., 161. The Court of Appeals reached this conclusion with little analysis, however, stating only that “[t]he [United States] Supreme Court has stated that it is inappropriate to employ the Mathews balancing test in criminal cases“; id.; and that “[t]he proper analytical approach” to deciding the issue was the approach set forth in Medina. (Internal quotation marks omitted.) Id., 161-62.
Soon after Hines, in United States v. Abuhamra, 389 F.3d 309 (2d Cir. 2004), the court addressed a claim by the defendant, Mohammed Abuhamra, following his conviction on federal charges, that the District Court had violated his due process rights by considering certain ex parte, in camera submissions when it denied him bail pending a resolution of his appeal. See id., 314. Applying the Mathews balancing test; id., 318; the Court of Appeals concluded that, as a general matter, principles of due process prohibit a District Court from using materials submitted ex parte and in camera for the purpose of determining whether to grant postconviction bail but that an exception to the prohibition against the use of such materials exists in certain narrowly specified circumstances.10 Id., 328-29, 332. The court remanded the case to the District Court for reconsidera-
tion of Abuhamra‘s application for bail in light of the exception to the general rule of exclusion that the court had carved out. See id., 332.
In Krimstock v. Kelly, 464 F.3d 246 (2d Cir. 2006), the court was required to decide whether the due process clause of the
The final case is McKithen v. Brown, 481 F.3d 89 (2d Cir. 2007), cert. denied, 552 U.S. 1179, 128 S. Ct. 1218, 170 L. Ed. 2d 59 (2008), in which the court considered whether the plaintiff, Frank McKithen, had a due process right to postconviction DNA testing of certain evi-
dence in the possession of the government. Id., 92. The court ultimately remanded the case to the District Court; id., 108; which had dismissed McKithen‘s claim for lack of subject matter jurisdiction. Id., 95. On remand, the District Court was required to decide whether McKithen‘s “post-conviction liberty interest encompasse[d] an interest in accessing or possessing potentially exonerative biological evidence“; id., 106-107; and, if so, the “contours of that right . . . .” Id., 93. The Court of Appeals made it clear that, if the District Court decided the first issue in McKithen‘s favor, then the District Court was required to apply the Mathews test, rather than the Medina test, to determine whether McKithen was entitled to such testing in the particular circumstances presented. Id., 107. In reaching its conclusion, the court expressly relied on the rationale of Krimstock with respect to the Mathews/Medina distinction, explaining that Mathews is applicable “because McKithen [was] not bringing a challenge to his underlying conviction or to ‘the process afforded during criminal proceedings themselves’ . . . but instead [was] seeking post-conviction access to evidence.”12 (Citation omitted; emphasis in original.) Id., 107, quoting Krimstock v. Kelly, supra, 464 F.3d 254.
These cases, taken together, suggest that Mathews, and not Medina, represents the applicable due process test when, as in the present case, the challenged proce-
dure is not directly related either to the process by which the defendant‘s guilt or innocence is adjudicated or to the accuracy of that adjudication. Because the essential protections of the bill of rights relate primarily to rights associated with
not be decided definitively whether Mathews or Medina applies because, for the reasons set forth hereinafter, the defendant cannot prevail under either test.
A
I first consider the applicable standard under Medina, pursuant to which a defendant claiming a due process violation “must sustain the usual heavy burden that a due process challenge entails“; Montana v. Egelhoff, 518 U.S. 37, 43, 116 S. Ct. 2013, 135 L. Ed. 2d 361 (1996) (plurality opinion); by establishing that the challenged procedural rule “offends some principle of justice
ple in question is fundamental is, of course, historical practice.” Id., 43. In the present case, the procedural provision at issue,
That answer is dictated by a review of the case law governing the procedural due process rights of defendants at pretrial proceedings and, in particular, at post-arrest bail and release hearings. In Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975), the United States Supreme Court concluded that the state “must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer either before or promptly after arrest.” Id., 125. Most importantly for our purposes, however, the court also concluded that “the [c]onstitution does not require an adversary determination of probable cause.” Id., 123; see also id., 120. The state is therefore free to establish a procedure for the determination of probable cause that is not accompanied by the “adversary safeguards . . . [consisting of] counsel, confrontation, cross-examination, and compulsory process for witnesses.” Id., 119. Because these protections are not required, the probable cause determination may be made informally, without an adversarial hearing, on the basis of hearsay evidence and written testimony.
Id., 120. Thus, although an arrestee cannot be held pending trial without a judicial determination of probable cause, the constitution does not require that the arrestee be afforded the right to challenge that determination in an adversarial setting. Because Gerstein permits the state to obtain an ex parte finding of probable cause by the court, it undermines the defendant‘s claim in the present case.
Furthermore, a protective order issued in a family violence case as a condition of bail or release in accordance with
A brief explanation of the act is necessary to an understanding of the court‘s holding in Salerno. “The [a]ct represent[ed] the [n]ational [l]egislature‘s considered response to numerous perceived deficiencies in the federal bail process. By providing for sweeping changes in both the way federal courts consider bail applications and the circumstances under which bail is granted, Congress hoped to give the courts adequate authority to make release decisions that give appropriate recognition to the danger a person may pose to others if released.’ . . .
“To this end, [
“The judicial officer is not given unbridled discretion in making the detention determination. Congress has specified the considerations relevant to that decision. These factors include the nature and seriousness of the charges, the substantiality of the [g]overnment‘s evidence against the arrestee, the arrestee‘s background and characteristics, and the nature and seriousness of the danger posed by the suspect‘s release. [
The court in Salerno concluded that the act did not violate either substantive or procedural due process. Id., 746, 751-52. With respect to the latter, the courtrested its determination primarily on the fact that “the procedures by which a judicial officer evaluates the likelihood of future dangerousness are specifically designed to further the accuracy
Although the act contains certain procedural protections, including the right of the defendant to present evidence at a detention hearing; see
Of course, an order of preventive detention results in physical confinement, a condition aptly characterized as “the ultimate deprivation of liberty“; United States v. Melendez-Carrion, 790 F.2d 984, 998 (2d Cir. 1986) (Newman, J.), cert. dismissed, 479 U.S. 978, 107 S. Ct. 562, 93 L. Ed. 2d 568 (1986); see also United States v. Perry, 788 F.2d 100, 113 (3d Cir.) (“civil detention order results in the deprivation of the most fundamental of all personal liberties“), cert. denied, 479 U.S. 864, 107 S. Ct. 218, 93 L. Ed. 2d 146 (1986); whereas the protective order issued in the present case merely barred the defendant from returning to his home. Without minimizing the nature of the deprivation that occurs when a person is ordered to stay away from his own home, such a restriction cannot compare to the loss of liberty that a person suffers upon being incarcerated without bail in advance of trial. Because a defendant has no absolute right to call witnesses or to require the government to present live testimony even at a detention hearing; see, e.g., United States v. Acevedo-Ramos, supra, 755 F.2d 207-208;16 a defendant
B
The defendant also cannot prevail under the Mathews balancing test. As I previously noted, that test is fact bound and requires consideration of three factors: (1) “the private interest that will be affected by the official action“; (2) “the risk of an erroneous deprivation of [that] interest” upon application of the challenged procedures, “and the probable value, if any, of additional or substitute procedural safeguards“; and (3) “the [state‘s] interest, including the function involved and the fiscal and administrative burdens” resulting from any additional or substitute procedural requirement. Mathews v. Eldridge, supra, 424 U.S. 335. Analysis of these factors “requires balancing the [state‘s] interest in existing procedures against the risk of erroneous deprivation of a private interest inherent in those procedures.” (Internal quotation marks omitted.) State v. Long, 268 Conn. 508, 524, 847 A.2d 862 (2004), cert. denied, 543 U.S. 969, 125 S. Ct. 424, 160 L. Ed. 2d 340 (2004). Furthermore, “[t]here isno per se rule that an evidentiary hearing is required whenever a liberty interest may be affected.” State v. Lopez, supra, 235 Conn. 492-93. “When determining what procedures are constitutionally required, we must bear in mind that [t]he essence of due process is the requirement that a person in jeopardy of a serious loss [be given] notice of the case against him and [an] opportunity to meet it. . . . The elements of notice and opportunity, however, do not require a judicial-type hearing in all circumstances. . . . [As] long as the procedure afforded adequately protects the individual interests at stake, there is no reason to impose substantially greater burdens on the state under the guise of due process.” (Citations omitted; internal quotation marks omitted.) Id., 493. With these principles in mind, I conclude that the hearing contemplated under
With respect to the first factor, it cannot be disputed that the defendant‘s liberty
The second factor entails an evaluation of the risk of an erroneous deprivation of liberty under the existing statutory provisions, which include the right to be heard, the right to provide the court with any relevant evidence or information, and the right to rebut any evidence or information that the state may offer. Because the defendant does not have a statutory right to a full evidentiary hearing at which he is entitled to call the victim as a witness, this second Mathews factor
also requires consideration of the probable value that such a hearing would have in safeguarding the defendant‘s interests, with due regard for the fact that the defendant retains the right to seek the court‘s permission to subpoena and question the victim. In support of his contention that the risk of an erroneous deprivation of his significant liberty interests is sufficiently high tо require such a hearing, the defendant points to an empirical study indicating that the substantiation rate for allegations of domestic abuse of the kind alleged in the present case is approximately 74 percent.19
this opinion; the defendant is free to provide the trial court with reasons why it should decline to credit the evidence and information adduced by the state in support of the issuance of a protective order and why the victim‘s testimony is necessary to ensure a fair resolution of the issue. In addition, the report and recommendation of the local family violence intervention unit must be made available to the court when it makes its determination as to the propriety of a protective order.
Application of the third Mathews factor leads to the conclusion that the state has a strong interest in retaining the existing procedures. As the state has explained, “[a]llowing the government to establish both the factual predicate and need for a criminal protectiveorder by the use of police reports, victim affidavits and the report and recommendation of the local family services unit, without also requiring that the victim subject herself to cross-examination, greatly advances the government‘s compelling interest in protecting victims of domestic violence and their children before a defendant charged with a family violence crime is released into the community [or permitted to return to the family home] pending trial . . . and, at the same time, serves to enhance the integrity of the criminal trial process itself by reducing the risk of witness intimidation.”
It also would result in a serious administrative burden. Under the scheme advocated by the defendant, the trial court would be obligated to conduct a full evidentiary hearing, at the defendant‘s request, in any case in which the state seeks a family violence protective order that, if issued, would result in a significant deprivation of the defendant‘s liberty. Although the majority does not attempt to identify the kinds of liberty deprivations that would trigger the right to a full eviden-tiary hearing, a defendant necessarily would be entitled to such a hearing in any case in which the court was considering a financial condition of release that the defendant could not make, thereby resulting in his pretrial confinement in lieu of bail.20
Moreover, there is no reason why entitlement to a full evidentiary hearing would be restricted to defendants in family violence cases whose conditions of release have resulted in a significant liberty deprivation. In fact, the due process principle that the defendant advances would apply to any defendant who, as a result of a condition of bail or release, suffers a significant deprivation of liberty. Consequently, the administrative burden on our courts would not be limited to family violence cases but would extend to many other cases. This burden on the state and on the courts would be great.
In addition, the evidentiary hearing contemplated by the defendant would be a minitrial on the merits of the state‘s case against the defendant. This is the necessary result of the constitutional claim that the defendant raises because the propriety of an order barring the defendant from residing at his home will depend largely, if not entirely, on whether the trial court is persuaded by the state‘s evidence that the defendant, in fact, had committed the family violence offense with which he was charged. If so, then it is extremely likely that the
court will issue the protective order. The more questions that the defendant can raise about the state‘s case—for example, by casting doubt on the veracity of the state‘s witnesses, including, most importantly, the victim—the better the defendant‘s chances are that the court will not issue the order that the state has sought. Thus, a full evidentiary hearing regarding the issuance of the protective order would closely resemble, if not mirror, the criminal trial itself. The state “has an obvious interest in not conducting a full-blown criminal proceeding twice, once for [purposes of determining the conditions of release] and a second time for the trial on the charges.” United States v. Edwards, supra, 430 A.2d 1337. “[W]ith regard to the [state‘s] witnesses, and particularly the complaining witness, the [state has] an interest in preventing premature discovery. It also has an interest in protecting the emotional and physical well-being of its witnesses.” Id., 1338.
Balancing the relevant factors, including, of course, the risk that use of the procedures now in place will result in an erroneous deprivation of the defendant‘s right to remain in his home pending trial, I believe that it is clear that the defendant has failed to establish that his interest in an unconditional right to cross-examine the victim at the hearing on the protective order outweighs the state‘s countervailing interest in a proceeding that does not necessarily involve such testimony. Although the defendant has a significant stake in the outcome of the hearing, his interests are protected by several important procedural safeguards, including the opportunity to persuade the trial court that live testimony, from the victim or anyone else, is necessary to a fair determination of whether the defendant should be barred from returning to his home.
This result, which is mandated by Mathews, also is dictated by the fact that the condition imposed on the defendant as a result of the protective order is no differ-ent
IV
My first and primary disagreement with the majority stems from its analysis and conclusion with respect to the nature of the hearing required under
other condition of bail or release; see
Recognizing that
The majority next identifies with specificity the parameters of the more expansive hearing under
to the hearing, (6) the defendant may, in the court‘s discretion, testify at the hearing, and (7) the defendant also may, in the court‘s discretion, call other witnesses who are willing to testify on his behalf. As I explain more fully hereinafter, the bifurcated hearing comprised of the foregoing multiple components is nowhere to be found in our statutory scheme; rather, it has been fashioned out of whole cloth by the majority.
The majority‘s determination that
a family violence crime is entitled to the hearing established under
The statutory construction that the majority adopts apparently is predicated on its belief that it would be impracticable for arraignment courts to hold the kind of hearing that the majority concludes is required by the statutory scheme. Putting aside the issue of whether that concern is justified in view of the relatively limited nature of the hearing that the majority asserts has been established under
Of course, under our law, bail hearings routinely are conducted in arraignment court. It is far more likely, therefore, that the legislature, aware of that fact, fully expected that the hearing under
conducted at the defendant‘s first court appearance and would be the same as a hearing on any other condition of bail or release.
This conclusion also finds strong support in the fact that, under
The majority‘s construction suffers from other serious infirmities. First, as the majority has observed, “[a] review of other criminal procedure statutes demonstrates that, when the legislature has desired to impose specific requirements on the conduct of a pretrial hearing, it has said so explicitly.” The majority offers as examples
In addition,
Furthermore, the majority‘s holding leads to an untenable, if not bizarre, result, namely, it creates one set of procedures for bail hearings in nonfamily violence cases in which the court imposes an order of protection, and another set of procedures for such hearings in cases involving family violence crimes. As I previously have indicated; see part III A of this opinion; in most felony cases, a court may
A review of the majority opinion reveals that the majority‘s conclusion concerning the nature of the hearing established under
With respect to the majority‘s reliance on the legislative history of P.A. 07-123, the majority identifies what it characterizes as “the legislature‘s desire to satisfy the defendant‘s due process rights under the fourteenth amendment to the United States constitution . . . [as] reflected in the comments of the sponsor of the bill enacted as P.A. 07-123, who viewed it as an attempt to ‘strike a very delicate balance here between the legitimate interests of law enforcement, and the important constitutional and civil liberty concerns that we would have [as] citizens . . . .’ 50 H.R. Proc., [Pt. 12, 2007 Sess.], p. 3904, remarks of Representative [Michael P.] Lawlor.” Contrary to the conclusion of the majority, these remarks of Representative Lawlor in no way substantiate the elaborate gloss that the majority places on the statutory language at issue. First, the majority engages in no analysis as to why its statutory interpretation addresses any possible due process concerns; the majority‘s constitutional analysis is limited to a one paragraph footnote in which it dismisses the defendant‘s contention that he has a due process right to a full evidentiary hearing. See footnote 21 of the majority opinion. In fact, the reason that the majority gives for rejecting that claim, namely, that a defendant facing a protective order barring him from his residence until the conclusion of his criminal case can have no constitutional entitlement to a full evidentiary hearing if a person who is incarcerated pending trial has no such right; see id.; defeats the majority‘s suggestion that due process considerations militate in favor of its interpretation of
In addition, and perhaps more to the point, the majority takes Representative Lawlor‘s comment completely out of context. The comment was made in response to a proposed amendment to the bill that ultimately became P.A. 07-123 concerning the authority of the police to release a person arrested for a family violence crime on a written promise to appear. See 50 H.R. Proc., supra, pp. 3902-3903, remarks of Representative Kevin Witkos.
The only other authority on which the majority relies in support of its conclusion concerns its determination that the state must prove the need for a protective order by a preponderance of the evidence. Of course, with respect to other conditions of release, the trial court must exercise its sound discretion in determining whether a particular condition is appropriate in any given case. In the present case, however, the majority cites out-of-state precedent involving civil domestic violence protective orders as its primary basis for concluding that such a standard applies under
V
I also disagree with the majority insofar as it reverses Judge Bingham‘s decision to reject the defendant‘s claim that he has a right to a full evidentiary hearing. Because the majority also concludes that the defendant was not entitled to such a hearing, the trial court‘s decision should be affirmed, not reversed. Of course, the defendant has a right under
The majority itself correctly characterizes the claim that the defendant raised in the trial court as follows: “The defendant argued that he was entitled to a full evidentiary hearing under both
This is the same claim that the defendant has raised in this court. The majority aptly characterizes that claim, as well, explaining that the defendant contends on appeal that “the trial court improperly failed to conduct an evidentiary hearing prior to issuing a criminal protective order because
Indeed, the trial court characterized the hearing to which the defendant is entitled as “similar to a bail hearing . . . .” In fact, under the majority‘s interpretation of
The majority asserts that, although Judge Pavia did afford the defendant the initial or preliminary hearing that, in the majority‘s view, is required under our statutory scheme, Judge Bingham must be reversed because the defendant “did not receive [the] subsequent hearing as requested . . . .” (Emphasis added.) This statement by the majority represents a mischaracterization of the record because the defendant never requested the hearing to which the majority now concludes he was entitled; indeed, he never even requested the opportunity to present any witnesses, evidence or other information. As I have explained, and as the majority expressly has acknowledged, the only hearing that the defendant sought was a full evidentiary hearing at which the state would be required to present testimony in compliance with the rules of evidence. The majority agrees that Judge Bingham properly denied the defendant‘s request for such a hearing. It is simply wrong, therefore, to assert that Judge Bingham must be reversed because he improperly declined to grant the defendant a hearing “as requested.”
Unable to explain its reversal of Judge Bingham by reference to the facts and record of this case, the majority turns to another case, Rowe v. Superior Court, 289 Conn. 649, 960 A.2d 256 (2008), to support
Indeed, in characterizing the defendant‘s claim in the trial court and on appeal, the majority itself acknowledges that the defendant‘s claim is the same in both courts, namely, that he has a right to a full, trial-like hearing. Despite this express acknowledgment, the majority nonetheless asserts that it “represents a hyper-technical and unduly restrictive application of the rules of preservation” to conclude that the “particular conclusion of law that [the majority] adopt[s]” was not preserved. Footnote 26 of the majority opinion. The majority, however, completely ignores the sine qua non of preservation, namely, fair notice of the claim to the trial court. See, e.g., State v. Ross, 269 Conn. 213, 335-36, 849 A.2d 648 (2004) (“the essence of the preservation requirement is that fair notice be given to the trial court of the party‘s view of the governing law” [emphasis in original]). Tellingly, the majority opinion makes no reference to the notice requirement and contains no discussion of how the defendant‘s arguments placed the trial court on fair notice of the statutory interpretation that the majority adopts today. Under settled principles of preservation, which the majority purports to apply, the majority would have to be satisfied that Judge Bingham was, in fact, accorded a fair opportunity to consider, for his acceptance or rejection, the interpretation of the statutory scheme that the majority has adopted. It simply is not possible to reach that conclusion, however, for as the majority expressly has acknowledged, the defendant “argued [in the trial court] only that he was entitled to a full, trial-like, evidentiary hearing.” (Emphasis added.) Footnote 26 of the majority opinion. Undaunted by this logical flaw in its analysis, the majority nevertheless insists that it is appropriate
The majority also seeks to justify its conclusion by reference to the fact that, after Judge Bingham had denied the defendant‘s request for a full evidentiary hearing, defense counsel questioned the court about the nature of the hearing to which the defendant was entitled. Id. (asserting that reversal “[did] not operate as a judicial ambush of Judge Bingham, as, after he denied the defendant a full, trial-like hearing, defense counsel questioned [Judge Bingham] about the nature of the hearing to which the defendant was entitled“). Judge Bingham ultimately informed the defendant that he was entitled to a hearing similar to a bail hearing. It is impossible to see how defense counsel‘s question and Judge Bingham‘s response to it support a reversal, as our trial courts are responsible for resolving issues presented to them, not for advising parties on how best to proceed. Moreover, in characterizing the hearing as akin to a bail hearing, Judge Bingham said nothing to mislead the defendant, who at no time sought to challenge the state‘s evidence or introduce any evidence of his own, by way of proffer or otherwise. Simply put, the majority countenances an ambuscade of Judge Bingham by reversing him on the basis of a nonconstitutional claim that never was raised in the trial court and has not been raised on appeal.
More importantly, the majority‘s approach to preservation—an approach that effectively dispenses with the heretofore critical component of fair notice—is unprecedented and unwarranted. The majority embraces a methodology pursuant to which it is enough to preserve a claim for appeal if the “issue” raised on appeal implicates the same issue that was raised in the trial court. Id. For purposes of the present case, the majority identifies that issue as “what type of hearing is required under
For very good reason, this court never before has adopted the expansive view of preservation that the majority employs in the present case. Under the majority‘s approach, if a party claims in the trial court that a statute means one thing (X), and the trial court rejects the party‘s construction on the ground that the statute means something entirely different (Y), and, then, on appeal, the party argues that the statute has yet a third meaning (Z), the party‘s claim has been preserved because the “issue” at trial and on appeal is the same, that is, the meaning of the statute. Until now, this has not been the mode of analysis used to determine whether a claim has been preserved for purposes of appeal, and it should not be because, under that methodology, fair notice to the trial court simply is irrelevant; the trial court never was afforded the opportunity to address the party‘s claim, raised for the first time on appeal, that the statute means Z. In this example, the only claim that the party has preserved is its claim that the statute means X; merely because the particular
A second scenario also highlights the extent to which the majority has departed from settled principles of preservation. Under present law, if a party objects to the admission of certain evidence on relevancy grounds, and the trial court overrules the objection, and, thereafter, the party claims on appeal that the evidence was inadmissible hearsay, the claim on appeal is not preserved. See, e.g., State v. Cabral, 275 Conn. 514, 531, 881 A.2d 247 (2005) (defendant‘s claim on appeal that evidence was inadmissible hearsay was not preserved and, thus, not reviewable because defendant raised different objection at trial), cert. denied, 546 U.S. 1048 (2005); see also State v. Meehan, 260 Conn. 372, 388-90, 796 A.2d 1191 (2002) (because defendant raised one claim at trial as to why witness’ testimony was inadmissible and asserted another, different claim of inadmissibility on appeal, defendant‘s appellate claim was unpreserved and, therefore, not reviewable). In light of the majority‘s decision in the present case, however, a party seeking relief on appeal could claim that the “issue” raised by his objection at trial was the inadmissibility of the evidence and, further, that, because his hearsay claim, which he raised for the first time on appeal, implicates that same “issue,” the claim would be preserved. Under the analytical model that the majority adopts, I see no reason why that party would not prevail on his preservation argument.32
In sum, by focusing broadly on the issue raised in the trial court rather than the claim raised in that court, the majority approves of an approach to preservation that differs markedly from the methodology that this court consistently has employed for a very long time. If the majority does not believe that preservation requires fair notice of the claim to the trial court, then it should say so expressly and explain why it has reached that conclusion.33
Finally, although I disagree with the majority‘s determination as to the nature of the hearing contemplated under
VI
A condition of bail or release that precludes a defendant from residing at his home during the pendency of his criminal case undoubtedly results in a significant liberty deprivation to that defendant. Consequently, our trial courts must carefully evaluate the particular circumstances of each case in deciding whether to impose such a condition. For obvious reasons, however, the imposition of such a condition will be prudent, if not absolutely necessary, in some cases involving family violence,
Contrary to the conclusion of the majority, there is nothing in our statutory scheme to suggest that the legislature has devised a hearing specially designed for the purpose of determining whether an order of protection should issue in a family violence case. In fact, such orders are no different than other conditions of bail or release, and the legislature expressly has designated them as such. Thus, as I previously explained, the state generally will be able to make its case for the issuance of a protective order on the basis of evidence, such as the alleged victim‘s sworn statement, that otherwise might not be admissible at trial. And most often, the defendant will be unable to establish a sufficient basis for calling adverse or other witnesses for the purpose of challenging the issuance of such an order. Whether the existence of unusual circumstances may give rise to an exception to these general rules is a determination that must be made by the trial court, in the exercise of its sound discretion, on a case-by-case basis, with due regard for the interests of all parties. In recognition of the fact that our trial courts are best situated to make such judgments and, thus, to strike the appropriate balance between the rights of the defendant and the legitimate interests of the state and the alleged victim, the legislature has manifested its intent that the desirability of an order of protection shall be determined in the same manner as any other condition of bail or release. The majority, however, disregards this evident legislative intent and, instead, substitutes its own view of what the law should be for what the legislature has decreed by creating a hearing procedure under
BERNADETTA KACZYNSKI v. DARIUSZ KACZYNSKI
(SC 18235)
Rogers, C. J., and Norcott, Katz, Palmer, Vertefeuille and Zarella, Js.