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*********************************************** 
STATE v. MARK T.—CONCURRENCE AND DISSENT

KAHN, J., with whom ROBINSON, C. J., and MULLINS, 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 program 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 assurance, that the [exclusion of the defendant’s testimony]

did not substantially affect the verdict.’’ Specifically, it

concludes that the jury reasonably could have concluded 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 testimony 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 relevance 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 behavioral 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 experience, 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 victim’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 necessary 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 physical force to maintain discipline or to promote the welfare 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 exclusionary rules of evidence cannot be applied mechanistically to deprive a defendant of his rights, the constitution 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) (defendant has constitutional right to introduce evidence of

third-party culpability if it is relevant and directly connects third party to crime); State v. Tutson, 278 Conn.

715, 746–51, 899 A.2d 598 (2006) (no violation of constitutional right to present defense when trial court properly 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 evidence 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 evidentiary matters will be overturned only upon a showing 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, evidentiary 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.’’ (Internal 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 prosecutor’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 testimony 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 defendant 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 intervention, 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 disruptive 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 justification defense applies only to the justified use of physical

force that is objectively necessary2

to promote the welfare 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 conclude 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 treatment or, if necessary, constrained to go in a skillful and

orderly manner. Indeed, if the defendant had information regarding the victim’s behavior or the treatment

program that was significantly different in quality or

significantly more probative with respect to his justification 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 having additional details of her behavioral problems and

proposed treatment published in court, which was the

basis for the state’s pretrial motion in limine, outweighed the merely incremental value to the defendant

of providing the jury with those details.4

I would conclude, 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 testimony of Wilkos and the defendant, I would also conclude that the Appellate Court correctly concluded that

the trial court did not violate the defendant’s constitutional right to present a defense. See, e.g., State v.

Devalda, supra, 306 Conn. 516 (‘‘[i]f the proffered evidence 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 disruptive 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, ‘‘material 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 reasonable under the circumstances.’’ Accordingly, the majority 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 relevant to the defendant’s justification defense, the defendant made no offer of proof before the trial court regarding 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 conclude, 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 process 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 disregard our rules of practice, [they should] give great latitude 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 significant behavioral issues. However, our job is to determine

whether the trial court properly excluded the defendant’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 precluded 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 precluding 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 subjective 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 defendant’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 component of the defense of justification, it also erroneously suggests that the

defendant, and not the jury, should be left to judge the objective reasonableness 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 questions, 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 defendant 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 defendant 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 defendant 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 repeatedly 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)).