273 Conn. 418 | Conn. | 2005
Opinion
A jury found the defendant, Patrick Wright, guilty of one count of criminal violation of a protective order in violation of General Statutes (Rev. to 1999) § 53a-110b, as amended by Public Acts 1999, No. 99-240, § 4 (P.A. 99-240).
The jury reasonably could have found the following facts. In November, 2000, the defendant resided in an apartment at 11 East Pearl Street in Danbury with his girlfriend, Sharon Wilson, and the couple’s three minor children. The victim, Judith Malcolm, who is Wilson’s sister, stayed at the apartment from time to time while she was visiting Wilson. On November 9, 2000, during one of these visits, the defendant physically assaulted Malcolm while the two were engaged in an argument. The police were called to the apartment, and the defendant was arrested and charged with assault in the third degree in violation of General Statutes § 53a-61 and disorderly conduct in violation of General Statutes (Rev. to 1999) § 53a-182. The defendant was arraigned on those charges on November 13,2000, and, as a condition of his release, a protective order was issued against him pursuant to General Statutes (Rev. to 1999) § 46b-38c.
On November 26, 2000, the defendant, who was accompanied by Wilson, entered the East Pearl Street apartment to collect some of his personal papers. Malcolm, who was in the apartment at the time, summoned police officers to the apartment, and they arrested the defendant for violating a protective order in contraven
During the state’s case-in-chief, the assistant state’s attorney called Linda Piascik, a family relations officer, to testify as to the existence and conditions of the protective order. Despite the court’s earlier ruling, defense counsel sought to cross-examine Piascik regarding her conclusions that the case involved a matter of family violence and that a protective order could be issued under § 46b-38c (e) even though the defendant and Malcolm did not reside together in the East Pearl Street apartment. The court sustained the objections of the assistant state’s attorney to those questions. Thereafter, during the defendant’s case-in-chief, Wilson testified that Malcolm did not reside in the East Pearl Street apartment, but merely had visited there occasionally. At that point, the trial court intervened and admonished defense counsel for engaging in a line of inquiry that was barred by its earlier ruling.
In its instructions to the jury, the court explained that, to find the defendant guilty of criminal violation of a protective order, the jury must find that the state has proven the following elements beyond a reasonable doubt: “(1) that an order issued pursuant to subsection (e) of [§] 46b-38c had been issued against the defendant; and (2) that the defendant [had] violated that order.” The court further instructed the jury that the validity of the protective order was not an issue for the jury to consider, and that it must assume that the order was “validly issued.”
The jury found the defendant not guilty of interfering with a police officer but found him guilty of criminal violation of a protective order. This appeal followed.
I
The defendant first claims that he was deprived of his right to present a defense, as secured by the sixth and fourteenth amendments to the United States constitution,
We begin our analysis with a review of the governing legal principles. The sixth amendment to the United States constitution “require [s] that criminal defendants be afforded a meaningful opportunity to present a complete defense. . . . The defendant’s sixth amendment right, however, does not require the trial court to forgo completely restraints on the admissibility of evidence. . . . Generally, [a defendant] must comply with established rules of procedure and evidence in exercising his right to present a defense. ... A defendant, therefore, may introduce only relevant evidence,
General Statutes (Rev. to 1999) § 53a-110b, as amended by P.A. 99-240, § 4, provides in relevant part: “(a) A person is guilty of criminal violation of a protective order when an order issued pursuant to subsection (e) of section 46b-38c . . . has been issued against such person, and such person violates such order. . . .” We note that the statute itself does not provide that the validity of the underlying order is a necessary element of that offense. Notwithstanding that observation, we must determine whether the invalidity of a protective order is a cognizable defense under the law and, thus, relevant to a material issue in the proceeding. That inquiry is guided by our analysis in Cologne v. Westfarms Associates, 197 Conn. 141, 496 A.2d 476 (1985).
In Cologne, we rejected the claim of the defendants that a judgment of civil contempt must be reversed when the injunction on which the contempt was based had been issued erroneously.
Although Cologne involved a civil contempt proceeding, the collateral bar rule also applies when a defendant seeks to attack the validity of a court order in a criminal proceeding. See, e.g., Walker v. Birmingham, 388 U.S. 307, 312, 315, 87 S. Ct. 1824, 18 L. Ed. 2d 1210 (1967) (criminal contempt); Jacko v. State, 981 P.2d 1075, 1076-77 (Alaska App. 1999) (criminal violation of protective order). Our endorsement of that rule in Cologne leads us to conclude that the defendant in the present case should not be allowed to challenge the validity of the protective order that he was charged with violating under § 53a-110b (a). That order was issued by a court of competent jurisdiction as a condition of the defendant’s release in connection with the assault and disorderly conduct charges stemming from his altercation with Malcolm. Thus, the defendant had no privilege to violate that order. If the defendant believed that the order did not comport with the statutory requirements of § 46b-38c (e), he had two lawful remedies available to him. He could have: (1) sought to have the order modified or vacated by a judge of the Superior Court pursuant to Practice Book § 38-13;
The defendant directs our attention to a decision of the Washington Court of Appeals, namely, State v. Marking, 100 Wash. App. 506, 997 P.2d 461, review denied, 141 Wash. 2d 1026, 11 P.3d 825 (2000), to show that the invalidity of a protective order is indeed a cognizable defense to his dime. The defendant in Marking, Joseph C. Marking, was convicted of violating a no contact order that did not contain the mandatory statutory notice that “consent [of the victim] is not a defense to violation of such order.” Id., 508. In reversing Marking’s conviction, the court explained that, under Washington law, “[t]he validity of a protective order is an implicit element of the crime of violation of such order . . . [and therefore] the [s]tate bore the burden at trial of proving the validity of the order beyond a reasonable doubt.” (Citation omitted; emphasis added.) Id., 509. Thus, the court rejected the collateral bar rule under the facts of that case and concluded that Marking’s attack on the merits of the order constituted a permissible defense. See id.
Even if the Washington courts would allow the defendant to assert his proffered defense under the circumstances of this case,
The defendant argues alternatively that his case falls within an exception to the collateral bar rale pertaining to orders that are “transparently invalid.” He claims that the protective order in the present case satisfies the requirements of that exception because “it was erroneously issued to a victim who did not qualify for . . . protection under [§ 46b-38c].” We are not persuaded.
The transparently invalid order exception traces its origin to dictum appearing in Walker v. Birmingham, supra, 388 U.S. 315, in which the court upheld criminal contempt convictions of persons who had marched in support of civil rights in violation of an injunction prohibiting mass street parades without a permit. Id., 321. Although the United States Supreme Court never has
The defendant does not deny that the state has a valid interest in protecting persons from physical violence, nor does he suggest that the protective order was issued for an improper purpose. Rather, he contends that the order is “transparently invalid” solely
For the foregoing reasons, we conclude that the defendant was not denied his constitutional right to present a defense when he was precluded from introducing evidence concerning the alleged invalidity of the protective order.
II
The defendant’s second claim is essentially a variation on the theme advanced in his first argument. Relying again on State v. Marking, supra, 100 Wash. App. 506, the defendant contends that the validity of the order that he was charged with violating is an implicit element of the offense of criminal violation of a protective order. He therefore argues that the trial court’s failure to require the state to prove the validity of the order beyond a reasonable doubt deprived him of his due process right to a fair trial.
Although we agree with the defendant that it is fundamental to due process jurisprudence that the state must prove each element of the charged offense beyond a reasonable doubt; In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); we do not agree that that principle was violated in the present case. We
Ill
The defendant’s final claim is that he was deprived of his right to counsel under the sixth and fourteenth amendments to the United States constitution
The defendant concedes that his claim was not preserved in the proceedings below and seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We nonetheless conclude that the defendant’s right to counsel claim simply amounts to another impermissible collateral attack on the protective order that he was convicted of violating. See Cologne v. Westfarms Associates, supra, 197 Conn. 147-48. The fact that this claim is couched in constitutional principles does not render it exempt from the collateral bar rule. That doctrine applies not only when a defendant challenges an order on the basis of factual error but also when he contends that the order is invalid because its issuance does not comport with constitutional law. E.g., In re Establishment Inspection of Hern Iron Works, Inc., 881 F.2d 722, 725 (9th Cir. 1989) (“[t]he collateral bar rule permits a judicial order to be enforced through criminal contempt even though the underlying order may be incorrect and even unconstitutional”); In re Providence Journal Co. I, supra, 820 F.2d 1346 (“[a]s a general rule, a party may not violate an order and raise the issue of its unconstitutionality collaterally as a defense in the criminal contempt proceeding”); see Walker v. Birmingham, supra, 388 U.S. 307 (applying collateral bar rule to preclude challenge to injunction even though “the Birmingham parade ordinance upon which the injunction was based would unquestionably raise substantial constitutional issues”); see also United States v. United Mine Workers of America, 330 U.S. 258, 293, 67 S. Ct. 677, 91 L. Ed.
The judgment is affirmed.
In this opinion the other justices concurred.
General Statutes (Rev. to 1999) § 53a-110b, as amended by P.A. 99-240, § 4, provides in relevant pail: “(a) A person is guilty of criminal violation of a protective order when an order issued pursuant to subsection (e) of section 46b-38c . . . has been issued against such person, and such person violates such order. ...”
Section 53a-110b is now codified as amended at General Statutes § 53a-223. All references throughout this opinion to § 53a-110b are to the 1999 revision as amended by P.A. 99-240, § 4.
The defendant appealed to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
General Statutes (Rev. to 1999) § 46b-38c provides in relevant part: “(d) In all cases of family violence ... [a] judge of the Superior Court may consider and impose the following conditions to protect the parties, including but not limited to: (1) Issuance of a protective order pursuant to subsection (e) . . . .
“(e) A protective order issued under this section may 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. ...”
For the purposes of § 46b-38c, “family violence” is defined as “an incident resulting in physical harm, bodily injury or assault, or an act of threatened violence . . . between family or household members." (Emphasis added.) General Statutes (Rev. to 1999) § 46b-38a (1).
A “ ‘\f\amily or household member means (A) spouses, former spouses; (B) parents and their children; (C) persons eighteen years of age or older
All references throughout this opinion to § 46b-38c are to the 1999 revision.
The protective order described the conduct that the defendant was to refrain from, including his entry into the East Pearl Street apartment. The protective order contained the following additional language mandated by § 46b-38c (e): “This protective order is made a condition of the bail or release of the defendant and, in accordance with ... § 53a-110b, any violation of this order constitutes criminal violation of a protective order. Additionally, in accordance with [General Statutes] § 53a-107, entering or remaining in a building or any other premises in violation of this order constitutes criminal trespass in the first degree. These are criminal offenses each punishable by a term of imprisonment not more than one year, a fine of not more than two thousand dollars, or both. Violation of this order also violates a condition of your bail or release, and may result in raising the amount of bail or revoking release.
“This protective order is to remain in effect until final disposition of the criminal case or until further order of the court.”
The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . . [and] to have compulsory process for obtaining witnesses in his favor . . .
The fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . .
A defendant’s right to present a defense is rooted in the compulsory process and confrontation clauses of the sixth amendment and the due process clauses of the fifth and fourteenth amendments. See, e.g., Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986). Bhrihermore, the sixth amendment rights to confrontation and to compulsory pro
“ ‘Relevant evidence’ means 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.” Conn. Code Evid. § 4-1.
Although we rejected the defendants’ claim on that ground, we nevertheless reversed the judgment of contempt because it was not supported by competent evidence. See Cologne v. Westfarms Associates, supra, 197 Conn. 156.
Practice Book § 38-13 provides in relevant part: “The judicial authority shall have the power to modify or revoke at any time the terms and conditions of release . . . .”
General Statutes § 54-63g provides in relevant part: “Any accused person . . . aggrieved by an order of the Superior Court concerning release, may petition the Appellate Court for review of such order. Any such petition shall have precedence over any other matter before said Appellate Court and any hearing shall be heard expeditiously with reasonable notice.”
The Washington Court of Appeals subsequently has adopted a narrow reading of its holding in Marking. For example, in State v. Snapp, 119 Wash. App. 614, 82 P.3d 252, review denied, 152 Wash. 2d 1028, 101 P.3d 110 (2004), the court explained that “Marking addressed only whether Marking knowingly violated a no-contact, order issued under [Washington law] when he acceded to his wile’s request that the two meet at her workplace and the no-contact order did not contain the mandatory consent warning Id., 624. The court further explained that Marking does “not require the [s]tate to anticipate any possible unspoken challenge to the validity of a protective order and to prove the validity of the order to the jury beyond a reasonable doubt. Nor does every defect render a no-contact order invalid . . . .” Id., citing State v. Sutherland, 114 Wash. App. 133, 136, 56 P.3d 613 (2002) (order was not invalid merely because it contained error in citation to governing statute), review denied, 149 Wash. 2d 1034, 75 P.3d 969 (2003).
We note that the federal courts also recognize three other situations in which the collateral bar rule is inapplicable, none of which are involved in the present case: “First, if the issuing court lacks subject-matter jurisdiction over the underlying controversy or personal jurisdiction over the parties to it, its order may be violated with impunity. ... In such a case, the original order is deemed a nullity, and the accused contemnor cannot be fairly punished for violating nothing at all. . . . Second, the collateral bar rule presupposes that adequate and effective remedies exist for orderly review of the challenged ruling; in the absence of such an opportunity for review, the accused contemnor may challenge the validity of the disobeyed order on appeal from his criminal contempt conviction and escape punishment if that order is deemed invalid. . . . Third, the order must not require an irretrievable surrender of constitutional guarantees.” (Citations omitted; internal quotation marks omitted.) In re Novak, supra, 932 F.2d 1401.
The defendant asserts that the Appellate Court’s decision in State v. Arluk, 75 Conn. App. 181, 815 A.2d 694 (2003), somehow supports his second claim. The defendant in Arluk, Mariano Arluk, contended that “the court improperly [had] relieved the state of its burden of proving one of the elements of the crime of violation of a protective order, namely, the existence of a valid . . . order.” Id., 191. Although the defendant’s second claim mirrors that advanced by Arluk, the Appellate Court did not decide the issue because it concluded that Arluk had waived his claim at trial. Id., 193. The Appellate Court’s decision in Arluk, therefore, is not instructive in the present case.
The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.”
The sixth amendment right to counsel is made applicable to the states through the due process clause of the fourteenth amendment. See Gideon v. Wainwright, 372 U.S. 335, 342, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963).