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STATE v. MARK T.—CONCURRENCE AND DISSENT
KAHN, J., with whom ROBINSON, C. J., and MUL-
LINS, J., join, concurring in part and dissenting in part.
The majority concludes that the defendant, Mark T., is
entitled to a new trial because the trial court improperly
precluded him from testifying about his thirteen year
old daughter’s behavioral issues and the treatment pro-
gram to which he was attempting to take her when he
dragged her by her ankle through the corridors of her
school, thereby causing her injury. According to the
majority, it is impossible to ‘‘conclude, with a fair assur-
ance, that the [exclusion of the defendant’s testimony]
did not substantially affect the verdict.’’ Specifically, it
concludes that the jury reasonably could have con-
cluded that details of the victim’s alleged behavior and
the specific nature of the treatment that the defendant
had arranged for her—which details he did not describe
before the trial court or on appeal—might have caused
him to have urgent concerns about the victim that, in
turn, might have led him subjectively and reasonably
to believe that his conduct was necessary to promote
her welfare. I disagree.1 I would conclude that the trial
court correctly determined that the very slight probative
value of the defendant’s testimony on these issues was
outweighed by the victim’s privacy interests. Moreover,
even if I were to agree that the exclusion of the testi-
mony constituted an abuse of discretion, the defendant
cannot establish that any impropriety was harmful
because he did not make an offer of proof at trial as
to the testimony that he would have given if the trial
court had allowed it; nor has he explained on appeal
what that testimony would have been. Accordingly, I
respectfully dissent in part.
Although the majority opinion accurately sets forth
the facts and procedural history of this case, I would
emphasize the following facts that have particular rele-
vance to the issues before us on appeal. The victim’s
teacher, Monika Wilkos, testified at trial that the victim
was enrolled in an ‘‘intensive behavior support program.
So any student that is placed in that program has a
history of just—it’s not always disruptive, but behav-
ioral issues that’s keeping them from making progress
in school. So it’s a program designed to support students
and teach coping skills, as well as academics; there’s
a whole therapeutic component to it. So, any student
that would come to my classroom would, in my experi-
ence, would have incidents where they were yelling or
upset about something during the school day.’’
Wilkos also testified that, when she informed the
victim that the defendant had come to the school to
take her to the treatment program, the victim became
very upset and repeatedly yelled, ‘‘I’m not going . . . .’’
When the defendant arrived and tried to persuade her
to go, the victim repeatedly screamed at him, ‘‘I’m not
fucking going with you, you can’t make me go . . . .’’
When the defendant attempted to take hold of the vic-
tim’s arms from behind, she dropped to the floor and
onto her back. At that point, the defendant grabbed her
by her ankle and started dragging her.
Wilkos further testified that, while the defendant was
dragging the victim through the corridors of the school
by her ankle, she continued to struggle violently and
to scream hysterically. Wilkos crouched over the victim
and tried to find a way to help her get to her feet because
she could see that the victim was being hurt. When the
victim attempted to stop the defendant’s progress by
grabbing onto door frames, bookcases and chairs, the
defendant forcefully pried and yanked her hands off of
them. A sixth grade student who witnessed the incident
was terrified and crying. Because of the disturbance,
school personnel called a ‘‘code yellow,’’ meaning that
students were instructed that they were not allowed to
leave their classrooms.
With this background in mind, I begin with a review
of the legal principles governing the defendant’s claim.
General Statutes (Rev. to 2015) § 53a-18 provides in
relevant part: ‘‘The use of physical force upon another
person which would otherwise constitute an offense is
justifiable and not criminal under any of the following
circumstances:
‘‘(1) A parent, guardian or other person entrusted
with the care and supervision of a minor . . . may use
reasonable physical force upon such minor . . . when
and to the extent that he reasonably believes such to
be necessary to maintain discipline or to promote the
welfare of such minor . . . .’’
The trial court properly instructed the jury that, under
this statute, it must find that the defendant did not
act with parental justification if it found ‘‘any of the
following: (1) The state has proved beyond a reasonable
doubt that when the defendant used physical force, he
did not actually believe that physical force was neces-
sary to maintain discipline or to promote the welfare of
the minor; (2) the state has proved beyond a reasonable
doubt that the defendant’s actual belief concerning the
use of physical force was unreasonable, in the sense
that a reasonable person, viewing all the circumstances
from the defendant’s point of view, would have not
shared that belief; or (3) the state has proved beyond
a reasonable doubt that, when the defendant used physi-
cal force to maintain discipline or to promote the wel-
fare of the minor, he did not actually believe that the
degree of force he used was necessary for the purpose;
here again, as with the first requirement, an actual belief
is an honest, sincere belief; or (4) the state has proved
beyond a reasonable doubt that, if the defendant did
actually believe that the degree of force he used to
maintain discipline or to promote the welfare of the
minor was necessary for that purpose, that belief was
unreasonable, in the sense that a reasonable person,
viewing all the circumstances from the defendant’s
point of view, would not have shared that belief.’’
‘‘A defendant has a constitutional right to present a
defense, but he is [nonetheless] bound by the rules of
evidence in presenting a defense. . . . Although exclu-
sionary rules of evidence cannot be applied mechanisti-
cally to deprive a defendant of his rights, the constitu-
tion does not require that a defendant be permitted to
present every piece of evidence he wishes. . . . State
v. Andrews, 313 Conn. 266, 275, 96 A.3d 1199 (2014).
Accordingly, [i]f the proffered evidence is not relevant
[or is otherwise inadmissible], the defendant’s right to
[present a defense] is not affected, and the evidence
was properly excluded. . . . State v. Devalda, 306
Conn. 494, 516, 50 A.3d 882 (2012); see also State v.
Hedge, 297 Conn. 621, 634–36, 1 A.3d 1051 (2010) (defen-
dant has constitutional right to introduce evidence of
third-party culpability if it is relevant and directly con-
nects third party to crime); State v. Tutson, 278 Conn.
715, 746–51, 899 A.2d 598 (2006) (no violation of consti-
tutional right to present defense when trial court prop-
erly excluded evidence on hearsay grounds).’’ (Internal
quotation marks omitted.) State v. Bennett, 324 Conn.
744, 760–61, 155 A.3d 188 (2017). Thus, ‘‘the question
of the admissibility of the proffered evidence is one of
evidentiary, but not constitutional, dimension.’’ State v.
Shabazz, 246 Conn. 746, 753 n.4, 719 A.2d 440 (1998),
cert. denied, 525 U.S. 1179, 119 S. Ct. 1116, 143 L. Ed.
2d 111 (1999).
‘‘The trial court’s ruling on the admissibility of evi-
dence is entitled to great deference. . . . [T]he trial
court has broad discretion in ruling on the admissibility
. . . of evidence. . . . The trial court’s ruling on evi-
dentiary matters will be overturned only upon a show-
ing of a clear abuse of the court’s discretion. . . . We
will make every reasonable presumption in favor of
upholding the trial court’s ruling, and only upset it for
a manifest abuse of discretion. . . . Moreover, eviden-
tiary rulings will be overturned on appeal only where
there was an abuse of discretion and a showing by the
defendant of substantial prejudice or injustice.’’ (Inter-
nal quotation marks omitted.) State v. Colon, 272 Conn.
106, 180, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848,
126 S. Ct. 102, 163 L. Ed. 2d 116 (2005).
I begin my analysis with a review of the trial court’s
actual rulings. Although the court sustained the prose-
cutor’s objection to the defendant’s testimony that, after
he obtained custody of his daughter, she ran away every
night, the court immediately clarified that the defendant
could testify about the victim’s difficult behaviors
‘‘[w]ithout getting into too much detail.’’ With respect to
the prosecutor’s objection to the defendant’s testimony
that he had reached out to the Department of Children
and Families for help on many occasions, the defendant
abandoned that topic without waiting for any ruling on
the objection by the trial court. The court then overruled
the prosecutor’s objections to the defendant’s testi-
mony that he was desperate to get help for the victim
because the police were coming to his house every day
and that he was determined not to let the victim enter
the foster care system, in which he had been raised.
The court also allowed the defendant to testify that the
people that he turned to for help refused to help him,
so he was forced to get help himself. Although the
trial court sustained the prosecutor’s objection to the
defendant’s attempt to testify as to the specific details
of the help that he sought, the court allowed the defen-
dant to testify that the ‘‘[t]he help that [the victim]
needed . . . was not just some after-school program;
it was much more significant.’’
Thus, the trial court permitted the defendant to testify
that he was having severe difficulties with the victim’s
behavioral problems, which required daily police inter-
vention, that he was ‘‘desperate’’ to obtain help for the
victim, that he was trying to take her to obtain that
help at the time of the incident, and that the nature of
that help was significant. The jury was also informed
through Wilkos’ testimony that the victim was enrolled
in an intensive support program at the school designed
for students with significant behavioral issues, and that
it was common for those students to engage in disrup-
tive behavior, to yell, and to become upset. Finally, the
jury was informed of the victim’s conduct when the
defendant came to take her to the treatment program,
specifically, that she vigorously defied and swore at
the defendant, that she physically resisted his initial
attempts to persuade her to go with him and that she
screamed and struggled during the entire incident. I do
not believe that the excluded testimony regarding the
victim’s attempts to run away and the specific details
of the treatment that the defendant had arranged for
the victim would have added materially to the probative
value of this evidence.
In this regard, I emphasize that the parental justifica-
tion defense applies only to the justified use of physical
force that is objectively necessary2 to promote the wel-
fare of a minor; it does not provide an excuse for the
unnecessary use of physical force by a parent who
reasonably is suffering from extreme frustration or
some other form of emotional distress. Although the
defendant’s past difficulties with the victim might tend
to explain his emotional state during the encounter and
to excuse his behavior, at least morally, it is, in my
view, highly dubious that a jury could reasonably con-
clude that any sense of urgency short of a subjective and
reasonable belief in the need for immediate treatment to
save life or limb would justify dragging the recalcitrant
victim by her ankle through the corridors of the school
as she struggled and screamed, thereby causing physi-
cal injury to the victim and a serious and frightening
disturbance in the school, as an objectively necessary
means to promote her welfare. The record reveals that
professionals, like Wilkos, were attempting to assist the
victim and to prevent the violent removal of her from
the school. Nothing in the record remotely supports a
conclusion that the victim was in imminent danger of
serious harm such that it would have been detrimental
to her welfare to postpone treatment until such time
as the victim could be either persuaded to go to treat-
ment or, if necessary, constrained to go in a skillful and
orderly manner. Indeed, if the defendant had informa-
tion regarding the victim’s behavior or the treatment
program that was significantly different in quality or
significantly more probative with respect to his justifi-
cation defense than the information that was actually
provided to the jury, it is difficult to understand why
he would not have disclosed that information to the
prosecutor or to the trial court at any point during
pretrial proceedings or trial.3 Thus, on the basis of the
record before it, the trial court reasonably could have
concluded that additional evidence of the victim’s past
behavior would have been very weakly probative, at
best.
Accordingly, the trial court reasonably could have
concluded that the victim’s privacy interest in not hav-
ing additional details of her behavioral problems and
proposed treatment published in court, which was the
basis for the state’s pretrial motion in limine, out-
weighed the merely incremental value to the defendant
of providing the jury with those details.4 I would con-
clude, therefore, that the Appellate Court correctly
determined that it was not an abuse of discretion for
the trial court to exclude this evidence. Because I would
conclude that the trial court properly excluded the testi-
mony of Wilkos and the defendant, I would also con-
clude that the Appellate Court correctly concluded that
the trial court did not violate the defendant’s constitu-
tional right to present a defense. See, e.g., State v.
Devalda, supra, 306 Conn. 516 (‘‘[i]f the proffered evi-
dence is not relevant [or is otherwise inadmissible], the
defendant’s right to [present a defense] is not affected’’
by its exclusion (internal quotation marks omitted)).
The majority contends that, although the jury was
informed that the victim was in a special program for
students with serious behavioral problems, that the
police were coming to the defendant’s house every night
to deal with the victim, that the defendant was acutely
afraid that the victim would be placed in foster care if
she continued to engage in such disturbing and disrup-
tive behavior, that the defendant believed that getting
treatment for the victim was urgent, that the treatment
program he was trying to bring her to was significant,
and that the victim was extremely upset, physically
resistant and profanely defiant when informed that the
defendant was going to take her to the treatment pro-
gram, the excluded testimony was, nevertheless, ‘‘mate-
rial to the subjective and objective reasonableness’’ of
the defendant’s conduct in dragging the victim through
the school by her ankle as she struggled and screamed.5
Specifically, the majority contends that ‘‘[t]he nature
and severity of the defendant’s difficulty parenting his
daughter were material to the strength of his subjective
belief that his use of force was reasonable to get [the
victim] to her mental health appointment.’’ In addition,
the majority contends that ‘‘the nature and severity of
[the victim’s] behavioral problems were material to the
degree to which a reasonable parent in the defendant’s
position would agree that his use of force was reason-
able under the circumstances.’’ Accordingly, the major-
ity states that it ‘‘cannot conclude, with a fair assurance,
that the [exclusion of the defendant’s testimony] did
not substantially affect the verdict.’’
The fundamental flaw in this analysis is that, even if
the majority were correct that the trial court improperly
excluded the defendant’s testimony because it was rele-
vant to the defendant’s justification defense, the defen-
dant made no offer of proof before the trial court regard-
ing the details of the victim’s difficult behaviors and
the nature of the treatment program to which he would
have testified if allowed, and he also did not provide
those details on appeal to the Appellate Court or to
this court. Accordingly, the majority has no basis for
concluding that the exclusion of the testimony was
harmful.6 See, e.g., Dinan v. Marchand, 279 Conn. 558,
583, 903 A.2d 201 (2006) (‘‘[b]ecause at trial the plaintiff
made no offer of proof regarding the specific substance
of the excluded testimony . . . it is not possible to
evaluate the harmfulness of the exclusion, if improper,
in light of the record’’); Burns v. Hanson, 249 Conn.
809, 824, 734 A.2d 964 (1999) (‘‘[t]he absence of an offer
of proof may create a gap in the record that would
invite inappropriate speculation on appeal about the
possible substance of the excluded testimony’’).
Although the defendant’s failure to make an offer of
proof is arguably excusable in light of the fact that he
was self-represented, he is represented by counsel on
appeal, and he still has not specified the additional facts
to which he would have testified if the trial court had
permitted such testimony or explained how those facts
could have affected the verdict. Cf. In re Lukas K., 300
Conn. 463, 465, 473–74, 14 A.3d 990 (2011) (trial court
properly denied request for continuance in termination
of parental rights proceeding when respondent father
had ‘‘not identified on appeal any additional evidence
or arguments that he could have presented if the trial
court had granted his request’’); State v. Lopez, 280
Conn. 779, 790, 911 A.2d 1099 (2007) (when defendant
did not identify on appeal any arguments that defense
counsel would have made at sentencing hearing if trial
court had granted defendant’s request for continuance
so that new counsel could review trial transcript, any
impropriety in denying request for continuance was
deemed harmless). In light of these well established
principles of appellate review, there is no basis to con-
clude, on this record, that the defendant is entitled to
a new trial.
Like the majority, I, too, recognize that this was a
trial involving a self-represented defendant who, at the
time of the incident, had recently obtained custody of
his troubled young daughter. I believe, however, that
the majority has given that consideration far too much
weight. The defendant was warned repeatedly about
the dangers of self-representation,7 and my review of
the record satisfies me that the trial court patiently
explained and assisted the defendant with the trial pro-
cess and gave him wide latitude on many occasions,
consistent with the court’s duty to be solicitous of the
rights of self-represented parties.8 See, e.g., Marlow v.
Starkweather, 113 Conn. App. 469, 473, 966 A.2d 770
(2009) (The courts should be ‘‘solicitous of the rights
of [self-represented] litigants and . . . endeavor to see
that such a litigant shall have the opportunity to have
his case fully and fairly heard so far as such latitude is
consistent with the just rights of any adverse party.
. . . Although [the trial courts may] not entirely disre-
gard our rules of practice, [they should] give great lati-
tude to [self-represented] litigants in order that justice
may both be done and be seen to be done.’’ (Internal
quotation marks omitted.)). Placing too much emphasis
on a defendant’s self-representation sends the message
that a defendant can ignore repeated warnings about
the real and serious dangers of self-representation, roll
the dice on representing himself in a jury trial and, if
he is convicted, get a second bite at the apple.9
Finally, there is no question that a reasonable person,
including a member of a jury, would be sympathetic to
the challenges presented in raising a child with signifi-
cant behavioral issues. However, our job is to determine
whether the trial court properly excluded the defen-
dant’s testimony. I would conclude that it did and that,
even if it did not, the defendant cannot establish that
any impropriety was harmful.
Because I disagree with the majority’s conclusion that
a new trial is warranted, I respectfully dissent in part.
1
I agree with the majority’s conclusion that the trial court properly pre-
cluded the defendant from questioning the victim’s special education
teacher, Monika Wilkos, as to whether the victim had ‘‘ever been physical
with anybody else in the school . . . .’’
2
For purposes of this concurring and dissenting opinion, and consistent
with the instructions provided to the jury, the term ‘‘objectively necessary
means’’ refers to means that a reasonable person would believe are necessary
to use under the circumstances.
3
The only information that may be gleaned from a review of the trial
court’s hearings on the two motions in limine filed by the state and the
eight separate pretrial motions filed by the defendant is that the defendant
planned to take the victim to an intake appointment at a known mental
health treatment facility for children.
4
At the hearing on the state’s motion in limine, the guardian ad litem
argued that the victim had a privacy interest in not revealing the name of
the treatment facility at which she had an appointment on the day of the
incident because it would tend to reveal the nature of the disorder for which
the defendant sought treatment on the victim’s behalf. It is well established
that persons have a privacy interest in their medical treatment records that
may justify the exclusion of relevant medical evidence. See State v. White,
139 Conn. App. 430, 440, 55 A.3d 818 (2012) (it was within trial court’s
discretion ‘‘to exclude the [complainant’s] medical records, as they would
not have disclosed material sufficiently probative of the defendant’s theory
of defense to justify breaching their confidentiality’’), cert. denied, 307 Conn.
953, 58 A.3d 975 (2013). It follows that the trial court also has the discretion
to exclude testimony that would reveal the content of confidential medical
records, such as the nature of the disorder for which the person is being
treated and the identity of the medical treatment provider.
The majority states that, because the articulated basis for the prosecutor’s
objections to the defendant’s question was relevancy, the state cannot now
claim that the testimony was properly excluded on the ground that the
exclusion of the testimony would protect the victim’s privacy. I would note
that the prosecutor did not articulate the basis for several of her objections
to the defendant’s questions, including the questions specifically directed
at the nature of the treatment that the defendant had arranged for the victim.
In light of the subject matter of the defendant’s testimony, the trial court
reasonably could have concluded that the objections were based on its
ruling on the pretrial motion in limine. The majority also states that the
defendant’s testimony about the specific nature of the treatment program
was ‘‘too general’’ to render further testimony cumulative. The defendant
does not challenge on appeal, however, the trial court’s pretrial ruling pre-
cluding him from identifying the treatment facility for the very reason that
it would tend to reveal the nature of the victim’s disorder.
5
As the trial court properly instructed the jury, the subjective component
of the parental justification defense requires that the defendant must actually
believe that his conduct was necessary to promote the victim’s welfare. The
reasonableness requirement comes in through the objective component,
under which the jury must be instructed that, if it finds that the defendant
actually believed that his use of physical force was necessary, it still must
find the defendant guilty if it determines that a reasonable person, viewing
all the circumstances from the defendant’s point of view, would not have
shared that belief. Cf. State v. Heinemann, 282 Conn. 281, 301–302, 920
A.2d 278 (2007) (discussing difference between subjective component of
duress defense, under which defendant in fact must believe that his life
would be endangered, and objective component, under which defendant’s
belief must be reasonable). In apparent reliance on the Appellate Court’s
statement that ‘‘the defense of parental justification requires both subjective
and objective reasonableness on behalf of the parent or guardian with
respect to the use of physical force’’; State v. Mark T., 186 Conn. App. 285,
296–97, 199 A.3d 35 (2018); the majority on several occasions uses language
that, contrary to the statutory language and the trial court’s instruction,
seems to inject a reasonableness requirement into the subjective component
of the defense. Specifically, the majority refers to the ‘‘objective and subjec-
tive elements of reasonableness’’; ‘‘subjective and objective reasonableness’’;
the jury’s ability to determine whether ‘‘the defendant’s conduct could be
subjectively or objectively reasonable’’; ‘‘the reasonableness of [the defen-
dant’s] actions, both subjectively and objectively’’; and ‘‘the subjective and
objective reasonableness of the defendant’s actions.’’ Although the majority
states that ‘‘nothing about [its] analysis injects a reasonableness requirement
into the subjective component of the defense’’; footnote 7 of the majority
opinion; the language it employs clearly suggests that, to the contrary, the
subjective component may be satisfied if the jury finds that the defendant
believed that the use of physical force was reasonable, rather than that it was
necessary. The reference to the ‘‘subjective and objective reasonableness’’
language not only needlessly muddies the true focus of the subjective compo-
nent of the defense of justification, it also erroneously suggests that the
defendant, and not the jury, should be left to judge the objective reasonable-
ness of his own beliefs and actions.
6
The majority faults the state for conflating relevance with cumulativeness
with respect to its argument that the trial court properly excluded the
defendant’s testimony. Even if there were some merit to that contention,
the majority overlooks the defendant’s failure to establish that any additional
evidence would not have been merely cumulative when considering whether
the trial court’s ruling was harmful.
7
As the Appellate Court observed, ‘‘[o]n more than one occasion, the
[trial] court canvassed the defendant in accord[ance] with Practice Book
§ 44-3 (4), ensuring that he was aware of the dangers and disadvantages of
self-representation.’’ State v. Mark T., 186 Conn. App. 285, 288 n.1, 199 A.3d
35 (2018). The record also reveals that the trial judge appointed standby
counsel for the defendant on July 28, 2016, approximately six weeks prior to
the start of trial. In addition to attending pretrial hearings and jury selection,
standby counsel was present during the entire duration of the trial and was
available to the defendant, should he have opted to seek his assistance
or advice.
8
For example, in response to numerous valid objections by the prosecutor
that the defendant was making arguments instead of asking witnesses ques-
tions, the court suggested that the defendant rephrase his statements by
asking specific questions and explained that he would have a chance to
make arguments and to tell the jury the significance of the particular exhibits
to which he was referring during his closing argument. The court took no
action when the defendant told the jury during a witnesses’ testimony that
he was ‘‘fighting for [his] life.’’ When the defendant asked the victim during
cross-examination how she had managed to flip over while he was holding
her right leg and left arm, she stated, ‘‘I don’t know, I just did.’’ The trial
court took no action when the defendant responded to this testimony with
sarcastic disbelief, stating, ‘‘[y]ou just did. That is . . . amazing . . . that’s
amazing.’’ Nor did the court take any action when, also during his questioning
of the victim, the defendant stated sarcastically, ‘‘[s]o, now we’re in the
middle of such a horrendous event . . . .’’ Later, the court gave the defen-
dant an opportunity to reconsider his decision to testify and carefully warned
him of the dangers of doing so. The court also gave the defendant a detailed
explanation of the jury instructions when it became apparent that he had
misunderstood them. In addition, the court took no action when the defen-
dant argued to the jury that he was trying to take the victim to the hospital
for services during the incident, despite the fact that the court previously
had prevented the defendant from testifying to that effect.
9
Having said this, I acknowledge that additional steps could have been
taken to allow the self-represented defendant to present a more detailed
picture of the context of the incident to the jury. For example, although
the issue was squarely raised before trial, the court and the parties apparently
reached no pretrial understanding as to the precise level of detail regarding
the treatment facility and the nature of the appointment to which the defen-
dant was attempting to take the victim that he would be allowed to present.
Nor was there an understanding as to the level of detail regarding the victim’s
difficult behaviors that would be permitted. It would have been helpful if
the court had explained, outside of the presence of the jury, the parameters
of the evidence that would be permitted relating to this issue. In addition,
although the prosecutor did not engage in any improper conduct, she repeat-
edly objected during the defendant’s examination of witnesses, sometimes
without stating on the record the basis for objecting to the admission of
the evidence. Accordingly, it would have been helpful for the trial court to
explain the reasons for its evidentiary rulings on the record. Nevertheless,
although the trial may not have been a perfect one, it was a fair one. Cf.
State v. Anderson, 255 Conn. 425, 435, 773 A.2d 287 (2001) (‘‘[d]ue process
seeks to assure a defendant a fair trial, not a perfect one’’ (internal quotation
marks omitted)).