State v. Maskiell, (AC 26387) (Conn. App. 4/10/2007)

• Decision Date: 10 April 2007
• Docket Number: (AC 26387)
• Parties: STATE OF CONNECTICUT <I>v.</I> EDWIN J. MASKIELL
• Court: Appellate Court of Connecticut

Page 1

STATE OF CONNECTICUT

v. EDWIN J. MASKIELL

(AC 26387)

Appellate Court of Connecticut

Argued September 14, 2006

Officially released April 10, 2007

Appeal from Superior Court, judicial district of Windham at Danielson, Foley, J.

Richard E. Condon, Jr., assistant public defender, for the appellant (acquittee).

James M. Ralls, assistant state's attorney, with whom were Patricia M. Froehlich, state's attorney, and, on the brief, Bonnie Bentley-Cewe, assistant state's attorney, for the appellee (state).

Schaller, McLachlan and Harper, Js.

Opinion

HARPER, J.

The acquittee, Edwin J. Maskiell, appeals from the judgment of the trial court ordering his continued confinement to the psychiatric security board of review (board) pursuant to General Statutes § 17a-593. The acquittee claims that (1) the admission of the board's report to the court violated his procedural due process right of confrontation and fundamental fairness, (2) the court's reliance upon the board's report violated his right to substantive due process and (3) the evidence did not support the court's findings. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. In September, 1985, the acquittee was charged with the crimes of sexual assault in the fourth degree and risk of injury to a child. In January, 1986, the acquittee was acquitted of these crimes by reason of mental disease or defect. See General Statutes § 53a1-3. The court committed him to the jurisdiction of the board for a period not to exceed ten years. On subsequent occasions, the court granted the state's petitions for an order of continued commitment. The acquittee's maximum term of commitment was to expire on June 9, 2003.

On January 8, 2003, the state filed a petition for an order for the acquittee's continued confinement, representing that "the acquittee remains mentally ill to the extent that his discharge would constitute a danger to himself or others." Later, the board held a hearing concerning the state's petition and submitted a report to the court as required by § 17a-593 (d).¹ The board recommended that the court grant the state's petition and order commitment for a period of time not to exceed five years.

In July, 2003, the court held a hearing concerning the state's petition.² The state presented testimony from Vicki Wolfe, a developmental specialist associated with the department of mental retardation (department), who has evaluated and treated the acquittee at the facility where he resides. The state also presented testimony from Norman Harrison, a conditional release supervisor at the facility where the acquittee resides. The acquittee presented testimony from James Welsh, the director of legal and government affairs for the department. The parties also submitted documentary evidence to the court. On the basis of the evidence presented at the hearing, the court granted the state's petition, ordering the acquittee's continued commitment for a period not to exceed five years.³ This appeal followed. Additional facts will be set forth as necessary.

I

The acquittee's first two claims challenge the court's admission of, and reliance upon, the board's report. First, the acquittee claims that the admission of the report violated his procedural right to cross-examination and his right to fundamental fairness. Specifically, the acquittee argues that he was deprived of an opportunity to cross-examine the drafters of the report, which contained hearsay in the form of expert opinion concerning the ultimate issue. The acquittee also argues that the report was unreliable and untrustworthy, and thus inadmissible hearsay, in that the board applied legal principles different from those applicable during the hearing on the state's petition, that two board members who signed the report were not present at the hearing before the board, that the record does not reflect that these board members reviewed a transcript of proceedings before the board and that, therefore, the report was not issued by a quorum of board members, as is required by board regulations. Second, the acquittee argues that, for similar reasons, the report was "so untrustworthy and unreliable" that the court's reliance upon it violated his right to substantive due process.

The court held a hearing on the state's petition on July 8, 2003. The transcript of the proceeding is not voluminous. By agreement of the parties, the court permitted the acquittee to present his sole witness before the state presented its case. At the conclusion of his witness' testimony, the acquittee rested. The state then presented testimony from two witnesses. At the conclusion of that testimony, the following colloquy between the court and the attorneys transpired:

"The Court: . . . Is there anything else that you have to present?

"[The Prosecutor]: Your Honor, the state has had marked as exhibits several documents, and in discussion with Your Honor this morning, I think, by agreement, the state was going to be marking relevant portions of those documents for Your Honor's review rather than having Your Honor go through all of those documents.

"The Court: Okay. [Counsel], is there anything else you'd like me to know about?

"[The Acquittee's Counsel]: Just briefly, Your Honor. I'd just like to address the procedural posture of how the case stands at the moment for the record.

"The Court: Okay."

The acquittee's counsel thereafter discussed the status of his motion to dismiss.⁴ He did not at that time or at any later time address the court with regard to the documentary exhibits referred to by the prosecutor, which included the report at issue.⁵ The documentary exhibits submitted by the state are marked as full exhibits in the court file, and the record does not reflect any objections thereto.

At the conclusion of the hearing, the court granted the state's petition in an oral ruling. The court stated that it agreed with the board's recommendations and that it found the testimony of the witnesses presented by the state to be persuasive. The court found that the acquittee suffered from certain psychological disorders and stated that it had "adopt[ed]" the board's conclusion that these disorders manifested themselves to such an extent that "these mental conditions render [the acquittee] a danger to children and greatly impair [his] ability to care for himself."

It is a well established rule of appellate practice that "[t]he court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. . . ." Practice Book § 60-5. The acquittee acknowledges that he did not preserve the claims he now seeks to raise on appeal, and asks this court to review the claims under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The acquittee also asks this court to apply the plain error doctrine, codified in Practice Book § 60-5, to the procedural due process and fundamental fairness aspects of his claim.

"Golding is a narrow exception to the general rule that an appellate court will not entertain a claim that has not been raised in the trial court. 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." State v. Brunetti, 279 Conn. 39, 55, 901 A.2d 1 (2006).

"[T]he plain error doctrine, which is now codified at Practice Book § 60-5 . . . is not . . . a rule of review-ability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court's judgment, for reasons of policy. . . . In addition, the plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly. . . . A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.. . . Implicit in this very demanding standard is the notion, explained previously, that invocation of the plain error doctrine is reserved for occasions requiring the reversal of the judgment under review. . . . [Thus, a] defendant cannot prevail under [the plain error doctrine]. . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice." (Citation omitted; internal quotation marks omitted.) State v. Fagan, 280 Conn. 69, 86-87, 905 A.2d 1101 (2006).

The state argues that the doctrine of induced error applies to the acquittee's claim. "[T]he 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 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 and induced constitutional error." (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Brunetti, supra, 279 Conn. 59 n.32; see State v. Rowe, 279 Conn. 139, 150, 900 A.2d 1276 (2006).

Our appellate courts have applied the induced error doctrine in a variety of circumstances. The doctrine has been applied in appeals in which an appellant has challenged on appeal the admissibility of evidence that it presented or elicited at trial. See, e.g., State v. Smith, 212 Conn. 593, 611, 563 A.2d 671 (1989); State v. Brokaw, 183 Conn. 29, 32-33,...