State v. Orr

• Citation: 291 Conn. 642,969 A.2d 750
• Decision Date: 26 May 2009
• Docket Number: No. 18172.,18172.
• Parties: STATE of Connecticut v. John Dean ORR.
• Court: Supreme Court of Connecticut

969 A.2d 750

291 Conn. 642

STATE of Connecticut v. John Dean ORR.

No. 18172.

Supreme Court of Connecticut.

Argued September 15, 2008.

Decided May 26, 2009.

W. Theodore Koch III, special public defender, for the appellant (defendant).

Marjorie Allen Dauster, senior assistant state's attorney, with whom, on the brief, were Michael L. Regan, state's attorney,

and Peter McShane, supervisory assistant state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, PALMER, VERTEFEUILLE and SCHALLER, Js.

VERTEFEUILLE, J.

The defendant, John Dean Orr, appeals¹ from the judgment of conviction, rendered after a jury trial, of two counts of harassment in the second degree in violation of General Statutes § 53a-183 (a)(3).² The defendant claims on appeal that the trial court improperly: (1) concluded that the dangerous client exception to the social worker-client confidentiality rule established in General Statutes § 52-146q (c)(2) ³ extends to in-court testimony, and thus improperly ordered the social worker who had previously treated the defendant to testify; and (2) admitted uncharged misconduct evidence, including the testimony of four witnesses for the state.⁴ We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Beginning in 2001, the defendant began visiting with Kenneth Edwards, Jr., a captain in the New London police department. Over a two year period, the defendant's visits with Edwards at his office occurred almost weekly. During these visits, conversation between the two ranged from the defendant's concerns about the police department to discussion about both of their families and themselves. The defendant also regularly called Edwards by telephone, and the two exchanged dialogue similar to that of their face-to-face visits.

In 2003, Edwards terminated his relationship with the defendant after the defendant began exhibiting unhealthy aggressive behavior toward both Edwards and other officers working for the police department. Thereafter, the defendant became increasingly frustrated with Edwards and started leaving him angry voicemails. In these voicemails, the defendant often would begin with a fairly calm demeanor, but eventually would escalate to the point that he was screaming angrily, yelling obscenities, saying that he wished Edwards was dead, and threatening both Edwards and his family.

On January 11 and 13, 2005, the defendant left two voicemail messages for Edwards on his office telephone in which he used curse words and accused Edwards of, among other things, giving the defendant's name "up to drug dealers," and attempting to charge him with arson.⁵ As a result of these two voicemails, Edwards made a complaint to the New London police department. The defendant subsequently was arrested on a warrant.

The state ultimately charged the defendant with four counts of harassment in the second degree in violation of § 53a-183 (a)(1)⁶ and (3).⁷ Counts one and two concerned the January 11, 2005 telephone call to Edwards, while counts three and four concerned the January 13, 2005 telephone call. Each count was based respectively on different subdivisions of § 53a-183 (a). The defendant moved to dismiss counts one and two on statute of limitations grounds, and the trial court thereafter denied the motion.

At trial, the state sought to introduce evidence of misconduct by the defendant through the testimony of five different witnesses. Doreen Fuller, the principal of an elementary school, Officers Graham Mugovero, Todd Bergeson and William Edwards,⁸ all of the New London police department, and Christopher Burke, a licensed clinical social worker for the department of mental health and addiction services, all testified against the defendant. The defendant filed a motion in limine to preclude the misconduct evidence, but the trial court denied the motion, admitted the testimony and ordered Burke to testify after concluding that his testimony fell within the dangerous client exception to the social worker-client confidentiality rule.

At the conclusion of the trial, the jury acquitted the defendant of two counts of harassment in the second degree under § 53a-183 (a)(1), but found him guilty of two counts of harassment in the second degree in violation of § 53a-183 (a)(3). The trial court thereafter sentenced the defendant to a total effective term of six months incarceration, suspended after sixty days, with one year probation. This appeal followed.

I

The defendant first claims that the trial court improperly concluded that the dangerous client exception to the social worker-client confidentiality rule contained in § 52-146q (c)(2) permits in-court testimony by the social worker, and that Burke's testimony therefore was improperly ordered by the trial court. More specifically, the defendant claims that the trial court improperly ordered Burke to testify because the social worker-client confidence protected his testimony as confidential. The defendant further claims that recognition of the social worker-client confidence is essential to the mental health and well-being of Connecticut citizens, and that a testimonial exception to this confidentiality under § 52-146q (c)(2) would directly undermine this well-being. Additionally, the defendant asserts that admission of Burke's testimony was not a harmless impropriety because the testimony was probative in showing that Edwards was not alone in concluding that the defendant was a danger to Edwards and his family.

In response, the state asserts that § 52-146q (c)(2) creates a testimonial exception to the social worker-client confidentiality statute that allows social workers to testify and divulge otherwise protected confidential information communicated by a client only if the social worker believes that "there is a substantial risk of imminent physical injury by the person to himself or others...." In the alternative, the state claims that even if this court should find that no testimonial exception exists, the admission of Burke's testimony was a harmless impropriety because Edwards' testimony and the audiotapes of the voicemail messages demonstrate "an overwhelming case of harassment." We agree with the defendant that § 52-146q (c)(2) does not permit in-court testimony by the social worker, and that the trial court improperly ordered Burke to testify. We agree with the state, however, that this improper action by the trial court was harmless.

The following additional undisputed facts and procedural history are relevant to our resolution of this claim. The defendant filed a motion in limine to preclude the state from admitting evidence of misconduct by the defendant. Specifically the defendant sought to preclude Burke, Fuller, Mugovero, Bergeson, and William Edwards from testifying. In his motion, the defendant objected to the admission of testimony by Burke, whom he argued would improperly breach the statutory social worker-client confidence by testifying. The trial court denied the motion in limine and ordered Burke to testify before the jury about the nature of his relationship as well as his prior communications with the defendant, concluding that his testimony fell within the dangerous client exception to the social worker-client confidentiality statute. The trial court then ordered Burke to answer questions not about the precise statements made to him by the defendant, but instead about his perceptions of what the defendant had told him. The trial court also gave a limiting instruction to the jury after Burke's testimony as to the proper use of the evidence.

At trial, Burke testified that after being telephoned by the police department, he interviewed the defendant in August, 2003, while the defendant was in lockup for a prior, unrelated charge. Without testifying as to the specific content of his interview of the defendant, Burke testified that his impression after the interview was one of "concern"; he "was very concerned about some of the contents of what [the defendant] had said," and believed that the defendant was "very angry" with Edwards and that both Edwards and his family "might be in danger." Burke further testified that pursuant to the statutory exception to the social worker-client confidentiality statute, he "felt [he] had a duty to warn [Edwards]" of this danger. In answering the state's questions on redirect examination, Burke again testified before the jury that his interview of the defendant occurred while the defendant was in "lockup."

The defendant's claim requires us to interpret § 52-146q (c)(2). We first address the appropriate standard of review. "Well settled principles of statutory interpretation govern our review." Viera v. Cohen, 283 Conn. 412, 420-21, 927 A.2d 843 (2007); see also, e.g., Edelstein v. Dept. of Public Health & Addiction Services, 240 Conn. 658, 659, 692 A.2d 803 (1997) (interpretation of General Statutes § 52-146o, physician-patient confidentiality statute). "Because statutory interpretation is a question of law, our review is de novo." Andover Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392, 396, 655 A.2d 759 (1995); see also State v. Arthur H., 288 Conn. 582, 590, 953 A.2d 630 (2008) ("[a]s with any question of statutory construction, our review of this threshold question as to the requirements of the statute is plenary").

In construing § 52-146q, we are mindful of General Statutes § 1-2z,⁹ which instructs us that "[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 ... § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship,...