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Considerations on Appellate Review in Connecticut

There are three fundamental considerations when analyzing the basis for any appeal, whether that appeal is in a state or federal appellate court. This post, however, looks mostly at Connecticut case law. They include (1) the standard of review to be used by the reviewing court; (2) the scope of review; and (3) the proper error analysis.  The first two considerations are often conflated by appellate practitioners and courts alike.  But they are separate and distinct concepts, and the appellate lawyer needs to understand and be aware of their difference.  More on that subtle distinction in a moment.  Let’s first examine the different standards of review commonly employed by appellate level courts.

STANDARD OF REVIEW

The standard of review represents the appropriate level of deference, or “depth of intensity” that an appellate court gives to the findings and procedural rulings of the lower court or administrative agency.  See Phillips, J., Dickson, The Appellate Review Function: Scope of Review, 47 Law and Cont. Prob. No. 2 (1984).  The appellate court practitioner needs to give the proper standard of review deep consideration, because the appeal will so often be won or lost based on the appropriate standard.  For example, in Palkimas v. Fernandez, 159 Conn. App. 129, 122 A.3d 704 (2105), the dispositive issue in the case turned on whether the appellate court examined the issue of proximate cause under the de novo lens, or under the more deferential clearly erroneous standard of review.  The parties contested the standard.  It made a difference.  The proper standard of review is an essential part of the appellate equation, but is often neglected or skimmed over when researching and writing the brief.   Don’t make that mistake, particularly if you represent the appellee trying to convince the appellate court to sustain the lower court’s decision.  

There are four basic standards of review employed by courts on appeal, these are: (1) de novo review (sometimes called plenary review in Connecticut- they are functionally the same standard); (2) review under the clearly erroneous standard; (3) review for abuse of discretion; and (4) review using the substantial evidence test.

There is also a hybrid mixed review where the issue involves consideration of both a legal question and a review of factual findings by the lower court.  Justice Schaller has likewise suggested searching review when examining the issue of failure to rehabilitate in termination of parental rights matters, but this has not yet been adopted by our Supreme Court. See In re Melody L., 290 Conn. 131 (2009)(Schaller, J. concurring).

Also, judicial review of administrative findings and decisions by land use agencies, while moving towards a more global substantial evidence test, still employ different standards of review depending upon the nature of the action by the board or commission. An examination of those standards of review are reserved for another article.

Let us consider the four basic standards:

DE NOVO (PLENARY) REVIEW:

The court is not bound to grant any deference to the lower court in its conclusions of law exercising its own independent judgment on de novo review.    

De novo (or plenary) review is employed when dealing with questions of law often involving the interpretation and application of a statute. “The application of a statute to a particular set of facts is a question of law, over which we exercise plenary review. Maturo v. Maturo, 296 Conn. 80, 88, 995 A.2d 1 (2010).” Follacchio v. Follachio, et al., 124 Conn.App. 371, 4 A.3d 1251, 1254 (2010).

 “‘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, General Statutes §1-2z directs us first to consider the text itself and its relationship to other statutes.  If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered…. When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter….’ (Internal quotation marks omitted.) Bender v. bender, 292 Conn. 696, 708, 975 A.2d 636 (2009).” Follacchio v. Follachio, et al., 124 Conn.App. 371, 4 A.3d 1251, 1254-55 (2010).   

“‘It…. is well established that we are required to read statutes together when they relate to the same subject matter…. Accordingly, [i]n determining the meaning of a statute… we are mindful that the legislature is presumed to have intended a just and rational result.’ (Internal quotation marks omitted.) Teresa T. v. Ragaglia, 272 Conn. 734, 748, 865 A.2d 428 (2005); accord Blum v. Blum, 109 Conn.App. 316, 322, 951 A.2d 587, cert. denied, 289 Conn. 929, 958 A.2d 157 (2008); Gervais v. Gervais, 91 Conn.App. 840, 855, 882 A.2d 731, cert. denied, 276 Conn. 919, 888 A.2d 88 (2005). ‘[W]e look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction.’ (Internal quotation marks omitted.) State v. B.B., 300 Conn. 748, 757, 17 A.3d 30 (2011).” In re Jacklyn H., 162 Conn.App. 811, 131 A.3d 784,792 (2016).

There are many other tools utilized by the courts when interpreting statutes, but full consideration of those tools is reserved for another blog post. Suffice it to say that appellate courts are not bound by the interpretation of a given statute by the lower court.   

Examples of de novo review include: review of summary judgment, Gould v. Mellick & Sexton, 263 Conn. 140, 146, 819 A.2d 216 (2003); whether the department of children and families has a continuing duty to provide reunification services to a respondent parent, being a question of statutory construction, the standard of review is plenary, In re Natalie S., (AC 38655)(2016), citing Marchesi v. Board of Selectmen, 309 Conn. 608, 614, 72 A.3d 394 (2013); “[w]hether an indigent defendant is entitled to the services of a particular attorney at a new trial ordered by an appellate court, as a remedy for the violation of his right to counsel of choice, is a question of constitutional law over which our review is plenary” Sate v. Peeler, (SC 19282)(2016), citing H.P.T. v. Commissioner of Correction, 310 Conn. 606, 612-13, 79 A.3d 54 (2013); a double jeopardy challenge presents a question of law, State v. Bernacki, 307 Conn. 1, 9, 52 A.3d 605 (2012).

CLEARLY ERRONEOUS STANDARD:

This standard is used when reviewing questions of fact. “A finding of fact is clearly erroneous when there is no evidence in the record to support it… or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” ATC Partnership v. Windham, 268 Conn. 463, 479, 845 A.2d 389 (2004). “In applying the clearly erroneous standard to the findings of a trial court, we keep constantly in mind that our function is not to decide factual issues de novo… the question for this court… is not whether it would have made the findings that the trial court dis, but whether in view of the evidence and pleadings in the whole record it is left with the definite and firm conviction that a mistake has been committed.” In re Ellis V., 120 Conn.App. 523 (2010).

“‘Our standard of review concerning a trial court’s findings of fact is well established. If the factual basis of the court’s decision is challenged, our review includes determining whether the facts set out in the memorandum of decision are supported by the record, or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous…. Further, a court’s inference of fact is not reversible unless the inference was arrived at unreasonably…. We note as well that [t]riers of fact must often rely on circumstantial evidence and draw inferences from it…. Proof of a material fact by inference need not be so conclusive as to exclude every other hypothesis  it is sufficient if the evidence produces in the mind of the trier a reasonable belief in the probability of the existence of the material fact…. Moreover, it is the exclusive province of the trier of fact to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness’ testimony…. Thus, if the court’s dispositive finding … was not clearly erroneous, then the judgment must be affirmed.’  (Emphasis in the original; internal quotation marks omitted.) Stein v. Tong, 117 ConnApp. 19, 24, 979 A.2d 494 (2009).” Palkimas v. Fernandez, 159 Conn.App. 129, 122 A.3d 704, 707-08 (2015).

“[T]he line between permissible inference and impermissible speculation is not always easy to discern. When we infer, we derive a conclusion from proven facts because such considerations as experience, or history, or science have demonstrated that there is a likely correlation between those facts and the conclusion.  If that correlation is sufficiently compelling, the inference is reasonable.  But if the correlation between the facts and the conclusion is slight, or if a different conclusion is more closely correlated with the facts than the chosen conclusion, the inference is less reasonable. At some point, the link between the facts and the conclusion becomes so tenuous that we call it speculation.  When that point is reached is, frankly, a matter of judgment.”  (Internal quotation marks omitted.) State v. Copas, 252 Conn. 318, 339, 746 A.2d 761 (2000).

In In re Melody L., the Court found that the trial court’s termination of parental rights based on failure to rehabilitate was not clearly erroneous.  290 Conn. 131 (2009).  The Supreme Court reversed the appellate court’s finding that a termination was clearly erroneous in In re Jorden R., 293 Conn. 539 (2009).  Termination of parental rights based on a failure to rehabilitate was found to be clearly erroneous in In re Stephen M., 109 Conn.App. 644 (2008), In re Shaiesha O., 93 Conn.App. 42 (2006), In re Eden F., 250 Conn. 674, rehrg. denied, 251 Conn. 924 (1999), and In re Migdalia M., 6 Conn.App. 194, cert. denied, 199 Conn. 309 (1986).  So it can be seen, that the clearly erroneous standard of review while more deferential than the de novo standard, still has some teeth.

Examples of the clearly erroneous standard of review include: review of findings of proximate cause, “[p]roximate cause is ordinarily a question of fact…,” Palkimas v. Fernandez, 122 A.3 at 707, citing Gurguis v. Frankel, 93 Conn.App. 162, 168, 888 A.2d 1083, cert. denied, 277 Conn. 916, 895 A.2d 798 (2006); “[t]he question as to whether a particular piece of property is personalty or a fixture is a question of fact,” Vallerie v. Stonington, 253 Conn. 371, 372-73, 751 A.2d 829 (2000), Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 217, 477 A.2d 988 (1984);   termination of parental rights, In re Ellis V., 120 Conn.App. 523 (2010).

MIXED REVIEW:

The line separating a question of law from a question of fact is often times blurred. Some courts solve the problem by engaging in a mixed review of the claim on appeal.  Other courts will deem a particular issue to be a question of fact, or of law, under their own eccentric calculus very often based on a line of cases not anchored in rational explanation.  Sometimes the issue is decided as one or the other based on practical considerations of the case.  (The distinction should never be used to serve a results oriented purpose- but of course that never happens-right?)

In 2015, our Supreme Court described the standard of review to be applied to the judgment of the trial court in a termination of parental rights matter pursuant to C.G.S.A. §17a-112(j) as follows:  “we review the trial court’s subordinate factual findings for clear error… We review the trial court’s ultimate determination that a parent has failed to achieve sufficient rehabilitation [or that a parent is unable to benefit from reunification services] for evidentiary sufficiency…” In re Gabriella A., 319 Conn. 775, 789-90, 127 A.3d 948 (2015); see also In re Shane M., 318 Conn. 568, 587, 122 A.3d 1247 (2015).  The Court further “[applied] the same standard of review to a trial court’s decision with respect to whether the department [of children and families] made reasonable efforts at reunification.” In re Oreoluwa O., (SC 19501) (2016).  This seems to be a subtle shift from a pure use of the often used clearly erroneous standard in termination matters to a hybrid mixed review: clear error and a sufficiency analysis. 

We may be in a transition with respect to the standard of review in termination matters. As previously observed, Justice Schaller has suggested what he styled “searching review” when examining the issue of failure to rehabilitate in termination of parental rights matters. In re Melody L., 290 Conn. 131 (2009)(Schaller, J. concurring).  His proposed approach is similar to the “scrupulous review” conducted by appellate courts when examining the reliability of pretrial identification.  “[W]e note that a challenge to a trial courts conclusion regarding whether the pretrial identification procedure was unnecessarily suggestive presents a mixed question of law and fact. State v. Marquez, supra, 291 Conn. at 137, 967 A.2d 56. ‘[B]ecause [however] the issue of the reliability of an identification involves the constitutional rights of an accused… we are obliged to examine the record scrupulously to determine whether the facts found are adequately supported by the evidence and whether the court’s ultimate inference of reliability was reasonable.’ (Internal quotation marks omitted.) State v. Reid, 254 Conn. 540, 554, 757 A.2d 482(2000). ‘[W]e will not disturb the findings of the trial court as to subordinate facts unless the record reveals clear and manifest error. (internal quotation marks omitted.) State v. St. John, 282 Conn. 260, 277, 919 A.2d 452 (2007).”  3 A.3d 15.  We can plainly see that the law is evolving in this area.

A more classic example of mixed review in Connecticut practice comes into play when examining habeas petitions asserting claims of ineffective assistance of counsel. On appeal, the reviewing court examines both the trial court’s legal conclusions and findings of fact.  “When the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct… and whether they find support in the facts that appear in the record… To the extent that factual findings are challenged, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous… a finding of fact is clearly erroneous when there is no evidence in the record to support it… or when although there is evidence in the record to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.”  (Internal quotation marks omitted.) Anderson v. Commissioner of Correction, 114 Conn.App. 778, 784, 971 A.2d 766, cert. denied, 293 Conn. 915, 979 A.2d 488 (2009).

ABUSE OF DISCRETION:

The abuse of discretion standard is typically employed when examining evidentiary rulings made by the lower court, or discretionary rulings based on a procedural rule, e.g. granting a continuance; trial court’s decision to excuse a juror State v. Apodaca, 303 Conn. 378, 386, 33 A.3d 224 (2012), State v. Cubano, 203 Conn. 81, 88-89, 523 A.2d 495 (1987);  etc..  “In determining whether there has been an abuse of discretion, every reasonable presumption should be made in favor of the correctness of the trial court’s ruling…” (Internal quotation marks omitted.) State v. Creech, 127 Conn.App. 489, 495, 14 A.3d 434, cert. denied, 301 Conn. 906, 17 A.3d 1045 (2011).

In Burton v. Browd, 258 Conn. 566 (2001), the issue was whether the Appellate Court abused its discretion by dismissing the appeal for the plaintiff’s failure to substitute the defendant.  “One of the issues raised in that appeal was whether the trial court, during the hearing on the plaintiff’s motion for reargument, improperly denied the plaintiff’s motion for a continuance for the purpose of filing a motion to substitute a representative of the defendant’s estate for the defendant following the defendant’s death.”   The Connecticut Supreme concluded that the Appellate Court abused its discretion in dismissing the appeal, and reversed the judgment of dismissal.

In Burton, the Court stated, that “[j]udicial discretion… is always a legal discretion, exercised according to the recognized principles of equity. Thomas v. Thomas, 159 Conn. 477, 480 271 A.2d 62 (1970).”  258 Conn at 569-70. “Such discretion… imports something more than leeway in decision making and should be exercised in conformity with the spirit of the law and should not impede or defeat the ends of substantial justice.” Id. at 570, citing Red Rooster Construction Co. v. River Associates, Inc., 224 Conn. 563, 575, 620 A.2d 118 (1993). “[R]eversal is required where the abuse is manifest or where injustice appears to have been done.” Id. citing Thomas v. Thomas, supra, 480.

Other examples of employment of the abuse of discretion standard include: review by the Supreme Court of the Appellate Court’s determination that an issue has been inadequately briefed on appeal, State v. Buhl, (SC 19412; SC 19413)(2016); review of a “trial court’s decision not to review a claim because it was inadequately briefed,” Buhl citing Connecticut Coalition Against Millstone v. Connecticut Siting Council, 286 Conn. 57, 85, 942 A.2d 345 (2008); the grant or denial of a continuance, Chaplin v. Balkus, 189 Conn. 445, 449, 456 A.2d 286 (1983), citing Ridgeway v. Ridgeway, 180 Conn. 533, 538-39, 429 A.2d 801 (1980)(“There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process.  The Answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.”), Ungar v. Sarafite, 376 U.S. 575, 589 (1964), State v. Jeustiniano, 172 Conn. 275, 285 (1977), and State v. Bethea, 167 Conn. 80, 83-84, 355 A.2d 6 (1974); release of confidential psychiatric records, State v. Peeler, 271 Conn. 338, 381, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S.Ct. 94, 163 L.Ed.2d 110 (2005), State v. Outing, 3 A.3d at 24; decision to grant or deny a mistrial, State v. Ortiz, 280 Conn. 686, 702, 911 A.2d 1055 (2006).  

 

SUBSTANTIAL BASIS:

The final standard of review commonly employed is the substantial basis test. This test is most commonly used when examining decisions made by administrative agencies.  It has also been used by the appellate level courts when reviewing “an issuing judge’s determination that probable cause existed to issue a search warrant.” State v. Diaz, 226 Conn. 514, 628 A.2d 567 (1993).  In Connecticut, judicial review of the actions of administrative agencies “is governed by the [Uniform Administrative Procedure Act, General Statutes § 4-166 et seq. (UAPA)] … and the scope of that review is very restricted… [R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable… Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact… Our ultimate duty is to determine, in view of all the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion… The substantial evidence rule governs judicial review of administrative fact-finding under the UAPA [See] General Statutes § 4-183(j)(5) and (6). An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred…. The substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision of n administrative agency…. It is fundamental that a plaintiff has the burden of proving that the commissioner, on the facts before him, acted contrary to law and in abuse of his discretion…. The law is also well established that if the decision of the commissioner is reasonably supported by the evidence it must be sustained.” Frank v. Dept. of Children and Families, 312 Conn. 393,  94 A.3d 588, 594-95 (2014), citing Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 833-34, 955 A.2d 15 (2008).

SCOPE OF REVIEW

The scope of appellate review concerns “the what” of appellate review. This can mean what specific part of the underlying record gets examined by the reviewing court, which will depend on the specific issue raised on appeal.  More commonly, however, the concern of scope of review is whether the issue raised on appeal can be reviewed at all.  This will depend on whether the issue was preserved in the trial court, or if comes under an exception to the general rule that all error must be preserved at trial by the appellant. 

Scope of review is an important concept, and is separate from the standard of review.   It is so important, that in Pennsylvania, the scope of appellate review must be separately stated in the Appellant’s brief.  See 210 Pa. Code Rule 2111; Bauman, Jeffrey, P., Standards of Review and Scopes of Review in Pennsylvania—Primer and Proposal, 39 Duq. L. Rev. 513 (2001).

Appellate review is considered to have two basic functions: the correction of error; and the creation, clarification or change in a legal standard or rule.  “While there have been various formulations, most who have thought systematically about the matter identify the following two basic functions: (1) correction of error (or declaration that no correction is required) in the particular litigation; and (2) declaration of legal principle, by creation, clarification, extension, or overruling.”   Phillips, J., Dickson, The Appellate Review Function: Scope of Review, 47 Law and Cont. Prob. No. 2, at p. 2 (1984).  “In the discharge of these [two] basic functions several others of subsidiary importance are also served.  Among them are (a) ensuring principled decisionmaking in the trial courts; (b) diffusing accountability within the legal system; (c) ensuring uniformity of principle; and (d) making justice ‘visible’ through the reasoned opinion.” Id

The scope of review is an essential part of the appellate review function, because it serves as a control mechanism by the reviewing court to “effectively order the ongoing functional relationship between the trial and appellate levels of a judicial system.” Id.   “To the extent the corrective function is emphasized, scope will tend to the narrow; to the extent the preventive, law-giving function is emphasized, it will tend toward the wide.” Id.   Appellate review then should ordinarily be limited to “the consideration of (1) specific first instance trial court actions or omissions (2) properly suggested as error to the trial court (3) and then properly presented for review to the appellate court (4) by an aggrieved party.”  Id. 

Unpreserved error, however, may in limited circumstances be reviewed in the discretion of the reviewing court. “In accordance with our case law and rules of practice, appellate review generally is limited to issues that were distinctly raised at trial. State v. Canales, 281 Conn. 572, 579, 916 A.2d 767 (2007); see also Practice Book § 60-5 (‘court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial’). ‘Only in [the] most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court.’ (Internal quotation marks omitted.) State v. Canales, supra, 579. ‘The reason for the rule is obvious: to permit a party to raise a claim on appeal that has not been raised at trial-after it is too late for the trial court or the opposing party to address the claim-would encourage trial by ambuscade, which is unfair to both the trial court and the opposing party.’ (Internal quotation marks omitted.) In re Azareon Y., 309 Conn. 626, 635, 72 A.3d 1074 (2013)… It is equally well settled, however, that a reviewing court, although not bound to consider a claim that was not raised to the trial court, may do so at its discretion.  See Persico v. Maher, 191 Conn. 384, 403, 465 A.2d 308 (1983)(although appellate court not bound to consider unpreserved claims of error, it may elect to do so on occasion, ‘not by reason of the appellant’s right to have it determined but because in our opinion in the interest of public welfare or of public justice between individuals it ought to be done’ [internal quotation marks omitted]). We are unaware of any statutory or procedural rule limiting that discretion.” In re Leilah W., (AC 38620)(2016). 

As long as error has not been expressly, or impliedly waived, unpreserved error may still be reviewed in limited circumstances under the following doctrines:

Plain Error: An appellant must demonstrate “that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” State v. Day, 233 Conn. 813, 848 (1995).  “[Where] the claimed raised … is nonconstitutional, the [appellant] must demonstrate that the trial court’s improper action likely affected the result of his trial.”  Id., 850.  See P.B. § 60-5. This doctrine is invoked sparingly.  State v. Roger B., 297 Conn. 607, 618, 999 A.2d 752 (21010).

Golding-Evans review: Unpreserved claims of constitutional error may be reviewed when they allege the violation of a fundamental right. State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).  The issue often depends on whether the asserted error has been deemed by the appellate courts to be of constitutional magnitude. Note, that evidentiary errors are not constitutional errors [see, e.g., State v. Toccaline, 258 Conn. 542, 550, 783 A.2d 450 (2001); State v. Dearing, 133 Conn.App. 332, 343-45, 34 A.3d 1031, cert. denied, 304 Conn. 913, 40 A.3d 319 (2012); State v. Richard W., 115 Conn.App. 124, 136-37, 971 A.2d 810, cert. denied, 293 Conn. 917, 979 A.2d 493 (2009)] and that arguing that an evidentiary error denied the appellant a fair trial will not necessarily raise the error to constitutional dimensions.  “[W]e observe that one does not change the true nature of an evidentiary claim merely by referring to it in constitutional terms.” State v. Adams, 139 Conn.App. 540, 56 A.3d 747, 751 (2012), citing State v. Vilalastra, 207 Conn. 35, 46, 540 A.2d 42 (1988).   

“In State v. Golding, supra, 213 Conn. At 239-40, 567 A.2d 823, our Supreme Court stated that ‘a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.  The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.’ (Emphasis in original; footnote omitted.) Golding applies in civil cases as well as criminal cases. In re Yasiel R., 151 Conn.App. 710, 720, 94 A.3d 1278, cert. granted on other grounds, 314 Conn. 907, 99 A.3d 1169 (2014); Bruno v. Bruno, 132 ConnApp. 339, 348-49; 31 A.3d 860 (2011); Lohnes v. Hospitalof Saint Raphael, 132 Conn.App. 68, 79-80, 31 A.3d 810 (2011), cert. denied, 303 Conn. 921, 34 A.3d 397 (2012).” Delahunty v. Targonski, 158 Conn.App.741, 121 A.3d 727, 730-31 (2015).

Inherent Supervisory Authority: Appellate courts also have inherent supervisory authority over the administration of justice, and may review under certain circumstances unpreserved error that goes to the integrity of the judicial process. State v. Mukhtaar, 253 Conn. 280, 290 n. 11, 750 A.2d 1059 (2000); In re Yasiel R., 317 Conn. 773 (2015)(pay particular attention to the powerful dissent authored by Justice Espinosa) .  This is an extraordinary level of relief and “sparingly invoked to address issues that affect the integrity of the judicial system as a whole and, in rare instances, to address the conduct in a particular case that ‘is unduly offensive to the maintenance of a sound judicial process.’” State v. Adams, 139 Conn.App. 540, 56 A.3d 747, 751 (2012)(authored by then Judge Espinosa), citing State v. Jiminez-Jaramill, 134 ConnApp. 346, 381, 38 A.3d 239, cert. denied, 305 Conn. 913, 45 A.3d 100 (2012).

Blumberg Review: A reviewing court may sua sponte raise and decide an issue not raised by any party, when:  (1) the court must do so when that issue implicates the court’s subject matter jurisdiction; and (2) has the discretion to do so when (a) exceptional circumstances exist that would justify review of such an issue if raised by a party, (b) the parties are given an opportunity to be heard on the issue, and (c) there is no unfair prejudice to the party against whom the issue is to be decided. Blumberg Associates Worldwide, Inc. v. Brown and Brown of Connecticut, 311 Conn. 123, 84 A.3d 840, 848 (2014). 

ERROR ANALYSIS

When is error considered reversible error? When it has a probable effect on the outcome of the trial, that is, when it works actual prejudice to the appellant.  Some error is so problematic that it is deemed per se prejudicial.  Some error cannot be reviewed because it was “invited” by the appellant.

The concept of error analysis traces its pedigree to the “Exchequer Rule” developed by English courts in the early nineteenth century. Dorff, Jr., Charles, A., Connecticut v. Johnson: Can Sandstrom Error Ever Be Harmless?, 15 Loy. Univ. Chi. L. Journ. Issue 2, at p. 375 (1984).  “This rule mandated reversal for any error committed during the course of a trial, no matter how slight or insignificant.  Later, when American courts adopted the rule, the result was a tremendous backlog of cases from overturned convictions.” Id.  Thus, was born the “harmless error doctrine” which is routinely used to examine different kinds of alleged error.  This doctrine was adopted by the U.S. Supreme Court to specifically apply to claims of “federal constitutional error,” in Chapman v. California, 386 U.S. 18 (1967).  Id. at 376.

 

 

Harmless Error:

It is important to know that claims asserting non-constitutional error place the burden of demonstrating harm (in criminal cases) on the defendant; with constitutional error claims the burden shifts to the State to demonstrate that the error was harmless “beyond a reasonable doubt.”

  1. Rules of Evidence

In State v. Malave, 250 Conn. 722 (1999), the Connecticut Supreme Court, as a matter of policy, prospectively abandoned the missing witness instruction rule of Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960).  The Court, however, found the instruction given by the lower court to be harmless.  250 Conn. at 724.  It went on to observe that “[w]e recognize that we have not been fully consistent in our articulation of the standard for establishing harm.  One line of cases states that the defendant must establish that it is more probable than not that the erroneous action of the court affected the result…. State v. McIntyre, 242 Conn. 318, 329, 699 A.2d 911 (1997); State v. Wilkes, 236 Conn. 176, 188, 671 A.2d 1296 (1996); State v. Cavell, 235 Conn. 711, 721-22, 670 A.2d 261 (1996).  Another line of cases states that the defendant must establish that the trial court error caused him substantial prejudice. State v. Askew, 245 Conn. 351, 371, 716 A.2d 36 (1998). We need not resolve this difference in formulation in the present case, nor need we determine whether there is any functional difference between the two formulations, because we conclude that the defendant has failed to sustain his burden under either standard.”  250 Conn. at 741, citing State v. Shabazz, 246 Conn. 746, 759, 719 A.2d 440 (1998), cert. denied, 525 U.S. 1179, 119 S.Ct. 1116, 143 L.Ed.2d 111 (1999).

In George v. Ericson, 250 Conn. 312 (1999), “[t]he principal issue … [was] whether the evidentiary rule barring the admission of the testimony of a non-treating physician, as previously articulated … in Brown v. Blauvelt, 152 Conn. 272, 274, 205 A.2d 773 (1964), should be overruled.”  The Court “conclud[ed] that Brown should be overruled, and that the trial court’s exclusion of the nontreating physician’s testimony was harmful.”   The Court went on to state, that “[h]aving decided that Brown should be overruled and that our holding should not be applied on a prospective basis only, we must now decide whether the plaintiff is entitled to a new trial. ‘[w]e have often stated that before a party is entitled to a new trial because of an evidentiary ruling, he or she has the burden of demonstrating that the error was harmful.’ Swenson v. Sawoska, 215 Conn. 148, 153 , 575 A.2d 206 (1990). ‘[t]he harmless error standard in a civil case is whether the improper ruling would likely affect the result.’ (Internal quotation marks omitted.) Pagano v. Ippoliti, 245 Conn. 640, 652, 716 A.2d 848 (1998).”  250 Conn. at 327.

 

  1. Rules of Practice

The appellate courts “ordinarily review violations of the rules of practice under harmless error analysis. See, e.g., Wiseman v. Armstrong, 295 Conn. 94, 110, 989 A.2d 1027 (2010) (‘[H]armless error review has been the standard of review historically applied in this state to claims of violation of the rules of practice. Our courts [o]rdinarily apply a harmless error analysis in determining whether a violation of a rule of practice amounts to reversible error.’ [Internal quotation marks omitted.]).” State v. Rose, n. 8 (SC No. 18323)(2012)(dissent). 

 

  1. Constitutional Error

Even with constitutional error, “the United States Supreme Court has repeatedly reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” State v. Brown, 279 Conn. 493, 504, 903 A.2d 169 (2006)(citations omitted). “The standard of review for an error of constitutional magnitude is well settled. ‘Whether a constitutional violation is harmless in a particular case depends [on] the totality of the evidence presented at trial. If the evidence may have had a tendency to influence the judgment of the jury, it cannot be considered harmless.’ (Internal quotation marks omitted.) State v. Hedge, 297 Conn. 621, 654, 1 A.3d 1051 (2010).” State v. Rose, (SC No. 18323)(2012)(dissent).  “The United States Supreme court has noted that the harmless error doctrine, which applies to some constitutional errors, serves the useful purpose of preventing the reversal of a conviction when there are minor trial errors or defects that have very little, if any, likelihood of affecting the result of the trial. Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).” State v. Braswell, 318 Conn. 815, 123 A.3d 835, 849 (2015). 

 

But with respect to constitutional errors, “the state bears the burden of proving that the constitutional impropriety was harmless beyond a reasonable doubt.” Id, at 511, 903 A.2d 169; State v. Randolph, 282 Conn. 328, 377, 933 A,2d 1158 (2007); Small v. Commissioner of Correction, 286 Conn. 707, 723, 946 A.2d 1203 (“It is well settled that a reviewing court evaluates a trial error of constitutional magnitude under the harmless error standard. [A] reviewing court must determine whether the state has proved that the unconstitutional error was harmless beyond a reasonable doubt.")

Examples of constitutional error that have been subject to harmless error analysis, include: State v. Carpenter, 275 Conn. 785, 832-33, 882 A.2d 604 (2005)(admissions of statements in violation of constitutional right to confrontation was harmless error); State v. Padua, 273 Conn. 138, 166-67, 869 A.2d 192 (2005)(although improper jury instruction violated due process rights, error was harmless); State v. Montgomery, 254 Conn. 694, 715-18, 759 A.2d 995 (2000)(admission of evidence concerning defendant’s silence was harmless error despite violation of due process rights); State v. Artis, 314 Conn. 131, 101 A.3d 915, 918 (2014), identification evidence is subject to harmless error review (overruling State v. Gordon, 185 Conn. 402, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982)); State v. Outing, 298 Conn. 34, 3 A.3d 1, 35 (2010), improper argument by prosecutor not harmful error where isolated and where trial court gave “strong curative instructions immediately after the improper comment.”

 

Structural Error: “‘Although the United States Supreme Court has noted that most constitutional errors are subject to a harmless error analysis… the Supreme Court has recognized… that, when the consequences of the deprivation of the defendant’s constitutional right are necessarily unquantifiable and indeterminate, [the deprivation of that right] unquestionably qualifies as structural error.’ (Citation omitted; internal quotation marks omitted.) Id. [State v. Lopez, 271 Conn. 724 ,859 A.2d 898 (2004)], at 737-38, 859 A.2d 898. ‘Structural [error] cases defy analysis by harmless error standards because the entire conduct of the trial, from beginning to end, is obviously affected…’ (Internal quotation marks omitted.) Id., at 733, 859 A.2d 898. ‘A structural error creates a defect in the trial mechanism such that, while it is virtually impossible to pinpoint the exact harm, it remains abundantly clear that the trial process was flawed significantly.  For this reason, [e]rrors of this magnitude are per se prejudicial and require that the underlying conviction be vacated.’ (Emphasis omitted; internal quotation marks omitted.) Id., at 739, 859 A.2d 898. Our Supreme Court ‘has found error to be structural only when the error renders atrial fundamentally unfair and is not susceptible to a harmless error analysis…’ (Internal quotation marks omitted.) State v. Brown, 279 Conn. 493, 509-10, 903 A.2d 169 (2006).” State v. Ralph B., 162 Conn.App. 583, 131 A.3d 1253, 1265 (2016).  That is, “‘there are some constitutional rights,’… that are ‘so basic to a fair trial that their infraction can never be treated as harmless error….’ [386 U.S. at 23]. [The Supreme Court] has called such infractions ‘structural defects’ or ‘structural error’… Sullivan v. Louisiana, 508 U.S. 275, 281, 282, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993); see also Arizona v. Fulminante, 499 U.S. 279, 309, 310, 111 S.Ct. 2078, 113 L.Ed.2d 302 (1991)(Rehnquist, J.)(referring to structural defects).’” State v. Braswell, 318 Conn. 815, 123 A.3d 835, 849 (2015). 

Examples of structural error include: where a criminal defendant is unaware of a potential conflict of interest of his attorney, “because it is impossible to say how the subsequent proceedings have been affected,” State v. Lopez, supra, 271 Conn. At 736, 859 A.2d 898; “erroneous deprivation of the right to counsel of choice, with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as structural error,” United States v. Gonzalez-Lopez,  584 U.S. 140,150 (2006)(“Different attorneys will pursue different strategies with regard to investigation and discovery, development of the theory of defense, selection of the jury, presentation of the witnesses, and style of witness examination and jury argument.  And the choice of attorney will affect whether and on what terms the defendant cooperates with the prosecution, plea bargains, or decides instead to go to trial.  In light of these myriad aspects of representation, the erroneous denial of counsel bears directly on the framework within which the trial proceeds… or indeed on whether it proceeds at all.  It is impossible to know what different choices the rejected counsel would have made, and then to quantify the impact of those different choices on the outcome of the proceedings.  Many counseled decisions, including those involving plea bargains and cooperation with the government, do not even concern the conduct of the trial at all. [Harmless error] analysis in such a context would be a speculative inquiry into what might have occurred in an alternate universe.”); the improper denial of the right to self-representation, State v. Braswell, 318 Conn. 815, 123 A.3d 835, 849 (2015), McKaskle v. Wiggins, 465 U.S. 168 (1984). 

Other examples of structural error include: Sullivan v. Louisiana, 508 U.S. 275 (1993)(defective reasonable doubt instruction); Vasquez v. Hillary, 474 U.S. 254 (1986)(racial discrimination in selection of grand jury); Waller v. Georgia, 467 U.S. 39 (1984)(denial of public hearing on motion to suppress); Tumey v. Ohio, 273 U.S. 510 (1927)(biased trial judge).

 

Inherent Supervisory Authority: (over preserved error- but not analyzed under either the harmless error doctrine or as structural error)

State v. Rose, (SC No. 18323)(2012), is an interesting example of when the state Supreme court chose to exercise its inherent supervisory authority to reverse a conviction based on preserved error. “[W]e conclude that reversing the defendant’s conviction is warranted in the exercise of our inherent supervisory authority over the administration of justice.  Pursuant to that authority, we adopt a rule that the conviction of a defendant who is compelled to stand trial in identifiable prison clothing in violation of his or her constitutional rights is reversible per se. Because we decide this case on the basis of our supervisory authority, we need not resolve the issue of whether a trial court’s constitutionally erroneous decision to compel a defendant to stand trial before a jury in identifiable prison clothing is susceptible to harmless error analysis, as the state claims, or instead amounts to structural error, as the defendant contends and as the Appellate Court apparently concluded.”  

Invited Error: If an appellant “induces” the action of the lower court, the appellate court will not review the claim based on the “invited error” doctrine. “‘[A] party cannot take a path at trial and change tactics on appeal.’ Moran v. Media News Group, Inc., 100 Conn.App. 485, 501, 918 A.2d 921 (2007). ‘Moreover, [t]his court routinely has held that it will not afford review of claims of error when they have been induced…. As we previously have explained, the term induced error, or invited error, has been defined as [a]n error that a party cannot complain of on appeal because the party, through conduct, encouraged or prompted the trial court to make the [alleged] erroneous ruling…. It is well established that a party who induces an error cannot be heard to later complain about that error…. This principle bars appellate review of induced nonconstitutional error and induced constitutional error…. The invited error doctrine rests [on principles] of fairness, both to the trial court and to the opposing party.’ (Citations omitted; internal quotation marks omitted.) State v. Martone, 160 Conn.App. 315, 328, 125 A.3d 590, cert. denied, 320 Conn. 904, 127 A.3d 187 (2015).” Gladstein v. Goldfield, (AC 36316)(2016).

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