11sept MMX-CR14-0675616T

MMX-CR14-0 675616T ; MMX - CR13-0200821T MMX-cv14 - 54

STATE OF CONNECTICUT

STATE OF CONNECTICUT

v.

Em-lARD F . TAUPIER

SUPERIOR COURT

JUDICIAL DISTRICT OF MIDDLESEX

AT MIDDLETOWN , CONNECTICUT

SEPTEMBER 11 , 2014

BEFORE THE HONORABLE DAVID P. GOLD, JUDGE

A P PEA RAN C E S

Representing the State :

ATTORNEY BRENDA HANS As s istant State ' s Attorney One Court Street Middletown , CT 06457

Representing the Defendan t :

ATTORNEY JON L . SCHOENHORN 108 Oak Street Hartford , CT 06106-1514

ATTORNEY ALI SHA C. MATHERS P. O. Box 465 Enfield , CT 06083-0465

ATTORNEY JOHN R. DONOVAN Donovan & Morello 154 West Street CROMWELL , CT 06416

Recorded & Transcribed By : Dana Wilson Court Recording Monitor One Court Street Middle town, CT 06457

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(Proceedings begin at 1 : 02 p . m. )

THE COURT : Let me call Edward Taupier . And

it ' s going to be re - called , but I just want to have

this aspect of it resolved .

(Pause)

THE COURT : All right . So Mr . Taupier was last

before the Court on Monday of this week .

Attorney Hans here on behalf of the state .

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ATTY . HANS : Good afternoon , Your Honor . Brenda

Hans .

THE COURT : Mr . Taupier is represented now by

Attorneys Donovan , Mathers and Schoenhorn . Mr .

Schoenhorn today has filed an appearance only in the

threatening file , but what I want to make clear now

for the record is what the status is of Mr . Taupier ' s

representation on the voyeurism file .

So , Ms . Mathers , what ' s -- I understand an in

lieu of appearance was filed .

ATTY . MATHERS : Yes , Your Honor . An in lieu of

appearance was filed i there was a misunderstanding

between my client and myself regarding the status of

Attorney Donovan . Mr . Taupier would like Mr . Donovan

to proceed as lone counsel on the voyeurism charge .

r will be representing Mr . Taupier strictly in the

divorce . So at this time I believe Attorney Donovan

will be filing his appearance in lieu of mine .

THE COURT : Well , Mr . Donovan , what ' s your

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position on becoming involved again in Mr . Taupier ' s

case on the voyeurism?

ATTY . DONOVAN : I ' m agreeing to remain as

counsel in that file .

THE COURT : And Mr . Jelly still of counsel in

that case as well?

ATTY . DONOVAN : Well , he was -- I ' m just

wondering , and I ' m inquiring of the clerk , if Ms .

Mathers ' appearance is withdrawn do I have to refile

an appearance?

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THE CLERK : It would probably be much cleaner if

you did , sir , at this point .

ATTY . DONOVAN : Then I ' m more than happy --

THE COURT : Why?

THE CLERK : Because she filed in lieu of both

Jefferson Jelly and Attorney Donovan , so hers is the

only one of record at this point . So particularly

with all this controversy about it , it would

THE COURT : Is Mr . Jelly filing -- then is Mr .

Jelly filing --

ATTY . DONOVAN: I ' m assuming he will .

THE COURT : Well , if that -- if Ms . Mathers '

appearance in lieu of is recognized then Mr . Jelly ' s

out .

ATTY . DONOVAN : That ' s correct. And I will

inform him of the proceedings today .

THE COURT : All right . So , Mr . Taupier , do you

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understand that?

THE DEFENDANT : Yes , I do .

THE COURT : Ms . Mathers filed an appearance

representing that she alone was representing you on

the voyeurism and on the threatening file .

THE DEFENDANT : That ' s correct .

THE COURT : Now , Mr . Schoenhorn is now saying

he ' s representing you on the threatening file

because , Mr . Schoenhorn , you filed an appearance in

lieu o f Ms . Mathers?

ATTY . SCHOENHORN : In lieu of Ms . Mathers , yes .

THE COURT : But I ' m now being told by Mr .

Donovan that Mr . Donovan is going to file in lieu of

Ms . Mathers on the voyeurism file , so Mr . Donovan now

appears as your sole counsel on these voyeurism . Do

you understand that?

THE DEFENDANT : I do , yes .

THE COURT : Now , until Ms . Mathers filed her

appearance in lieu of you also had Mr . Jelly

representing you on the voyeurism file , but under the

current status , as we ' ll be leaving it right now , Mr .

Donovan is your only attorney on the voyeurism case .

Do you understand that?

THE DEFENDANT : Yes , I do .

THE COURT : So if it ' s your intention to retain

Mr . Jelly to represent you along with Mr . Donovan on

any file then you must have him appear in court and

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file an appearance because he ' s no longer of record .

Do you understand that?

THE DEFENDANT : I do , yes .

THE COURT : So , all right . Well , then we have

that issue resolved , I believe . Obviously the state

has nothing to add , just wants to get this all clear

for the record .

ATTY . HANS : Thank you , Your Honor .

THE COURT : All right . So then we have further

matters that need to be addressed today on the

threatening file , which we ' ll take up this afternoon .

So everyone is excused until two o ' clock .

Mr . Donovan , you ' re free to go because you ' re

not involved in the threatening case .

And, Ms . Mathers , you ' re out of both cases .

ATTY . MATHERS : Criminal . Yes , Your Honor .

Thank you , very much .

THE COURT : So you ' re free to go .

ATTY . MATHERS : Thank you .

THE COURT : And , Mr . Schoenhorn , I ' ll see you

after lunch .

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ATTY . DONOVAN : Your Honor , just for the record

there was -- last week when I was on vacation a

protective order that was issued in the file that I ' m

representing him on --

THE COURT : There was .

ATTY . DONOVAN : There may be the necessity in

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the future to request a Fernando hearing in

connection with that .

THE COURT : All right . Well , then -- well ,

you ' ll move for one should you want one , correct?

ATTY . DONOVAN : Thank YOll , Judge .

THE COURT : All right .

ATTY . MATHERS : Thank you .

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THE COURT : So that ' s where we stand . And we

\.,.ill pick this up after lunch .

ATTY . SCHOENHORN : And with the agreement of

Attorney Hans , there is -- the case in chambers that

the Court recalled there was a decision about the in

rem matter and this is -- we agreed that this would

be the case and we would like the Court to look at it

before we actually have it on the record and we ' re

giving a copy of State v . Reddy, R-E-D- D- Y, which --

unless the Court is aware of a different one , this is

the one we were - - we found .

THE COURT : All right . I ' ll take a look if this

is the case . Thank you , for alerting me to the case .

ATTY . DONOVAN : As far as a new date is

concerned , this case was originally scheduled for

this coming Tuesday .

ATTY . HANS : That ' s correct , Your Honor , the

THE COURT : Is that right?

THE CLERK : Yes , Your Honor .

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ATTY . HANS : Yes . Yes , sir .

THE COURT : 9/16 . Okay . So , I guess we ' 11 say

9/16 , but I suspect if there ' s a change in that

schedule I ' ll have the clerk contact you , Mr .

Donovan .

ATTY . DONOVAN : Certainly , Your Honor .


ATTY . SCHOENHORN : So two o ' clock , Your Honor ,

or 2 : 15 or what would the Court ' s pleasure?

THE COURT : Yes , 2 : 15 . Thank you.

ATTY . HANS : Thank you , Your Honor .

(Recess at 1 : 09 . Unrelated matters heard

and resume at 3 : 53 . )

THE COURT : Good afternoon , everyone , and thank

you for your patience . Now , we are back on the

record in the Taupier case now having earlier this

morning or earlier today rather , having resolved to

some extent the state of the record concerning Mr .

Taupier ' s legal representation .

So what brings us back on the record , as I

understand it , today is the firearms seizure hearing .

The Court really knows nothing about the

circumstances of that seizure , but had docketed , as

it normally does , a firearms hearing for today .

Earlier today , sometime this morning , Mr . Schoenhorn

filed his appearance and the matter that now has to

be considered is the 29-38c here .

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ATTY . HANS : Correct , Your Honor .

ATTY . SCHOENHORN : Well , procedurally , if I just

may before we even get started . It ' s my

understanding that there ' s a family docket number

that ' s been assigned to that matter . I was given a

document -- a docket number by Attorney Hans , who

I wrote it on the copy of a motion , but I have no

idea whether there ' s an ac t ual civil docket number ,

because it wouldn ' t be part of the criminal , the

statute itself says it's separately civilly docketed .

THE COURT : And actually I don ' t know where the

FAM came from , but the file that I ' m looking at - -

ATTY . SCHOENHORN : Yes .

THE COURT : -- which is the clerk ' s file is

simply Docket No . MMX-CV14-S4 .

ATTY . SCHOENHORN : Oh . So it ' s -- so if I

may

THE COURT : And I ' m only guessing it , this may

be the 54 th of these hearings , 54 th asset - - not asset

forfeiture 54 th firearms seizure hearing .

ATTY . SCHOENHORN : All right . I thought maybe

that would be the 54 th civil case in this building ,

but obviously I ' m not sure about that . If I may have

permi ssion then to change the FA

THE COURT : Of course .

ATTY . SCHOENHORN : -- to CV on the motion I just

filed?

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(Pause)

ATTY . SCHOENHORN : And for the record , Attorney

Jon Schoenhorn representing Mr . Taupier as the

respondent in this matter .

THE COURT : Yes .

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ATTY . SCHOENHORN : I just want to make sure that

the court reporter ' s caption reflects that for now --

we ' re not talking about a civil matter , although at

some point before the end of the day I may want to

address the conditions on the criminal matter because

I noticed the court ' s order said there would be an

opportunity to review them on the 11th and that ' s

today .

THE COURT : Yes . All right . So you have filed

a motion to dismiss the in rem action , and I suspect

by in rem you ' re referring to the firearm seizure?


THE COURT : And to return unlawfully , what you

allege is unlawfully , seized property?

ATTY . SCHOENHORN : Yes , Your Honor .

THE COURT : All right . So are there any other

matters, Mr . Schoenhorn , procedurally that you wanted

to take up before this court continues?

ATTY . SCHOENHORN : Do you mean in the criminal

case?

THE COURT : Well , in any case .

ATTY . SCHOENHORN : Well , procedurally at some

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point I just want to address the issue of the

conditions of release , that ' s the only procedural

matter that I want to address .

THE COURT : All right . That ' s the only thing .

Then where -- so , yes , Ms . Hans .

ATTY . HANS : Brenda Hans , Assistant State ' s

Attorney for the people of the State of Connecticut ,

Your Honor , in this matter . We ' re ready -- we had

five witnesses that have been here since 9 : 00 this

morning , we released them on the hearing on the risk

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charge . They ' re placed on-call status . I know there

\vere over 100 cases on the S Docket today .

THE COURT : It was a busy day .

ATTY . HANS : I just received the motion to

dismiss that pertains to the risk . It ' s now 4 : 00

p . m. I have to initiate the hearing I ' ve marked

what we have as state ' s exhibit , the three page at

risk search and seizure warrant .

marked 10 only at this juncture .

I ' d ask that it be

I know that

Attorney Schoenhorn does object to it being admitted

as full .

THE COURT : Does or doesn't? Well , then I won ' t

look . You ' ve asked that an exhibit be marked .

ATTY . HANS : Yes , Your Honor . For 10 purposes

only because it ' s really the crucial document in the

hearing .

THE COURT : All right . Well , then it ' s been

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marked for identification . The Court ' s not going to

review it , but what I ' m trying to do is ascertain the

most efficient way to address the many issues that

could be the subject of a hearing today .

ATTY . SCHQENHORN : May I suggest something?

THE COURT : Please do .

ATTY . SCHOENHORN : I say that because I ' m

raising both in personam and subject matter

jurisdictional claims in my motion that for purposes

of that motion and that motion alone , the Court may

without objection look at the -- because I ' m claiming

deficiencies in both the document and its service and

notice to the respondent in this case . In order to

be able to determine that the Court wouldn ' t

necessarily have to look at the document , just like

if this was a regular civil -- I know you haven ' t sat

civil in probably , I don ' t know , 20 years because

I ' ve known where you ' ve sat and presided , but the

judge might have to look at both the complaint and

the service of process in any civil case , that

doesn ' t mean the court is considering the truth of

any of the matters contained therein , it ' s a matter

of whether it sets forth certain information and

complies with the statute .

So as long as the Court feels that it could

review the actual document and service and return

without being prejudiced as to its contents , because

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othenvise it ' s rank hearsay and I would certainly

object to it being considered for the truth of the

matter asserted .

THE COURT : So you said this challenges subject

matter and in personam

ATTY . SCHOENHORN : In personam, yes .

THE COURT : What is the -- the in personam is

the service?

ATTY . SCHOENHORN : He ' s never been served with

this and the document itself , even if the Court just

looks at the return , it says it ~-Jas returned to the

Hartford State ' s Attorney ' s Office . There ' s no

indication that a copy was ever sent , nor \Vas a

notice sent from the court to him . I will certainly

represent that an e-mail was sent yesterday to

Attorney Mathers , who again , just because she

represents Mr . -- or had represented Mr . Taupier for

a few days in a criminal matter does not constitute

service or notice under the statute . So the fact

that of as a matter of fact , we only found out

about this yesterday , so -- and when I said earlier

today the fact that Ms . Hans said well , she only saw

the motion today , that ' s because last night was the

first time anybody saw this document at all , that is

on the defense side .

THE COURT : All right . And the subject matter

jurisdiction is a different claim than the service?

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THE COURT : And that is?

ATTY . SCHOENHORN : The subject matter

jurisdiction claim is that the document --

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THE COURT : Is it Paragraph 4 of your motion

that just challenges the constitutionality of 29 - 38c?

ATTY . SCHOENHORN : And 3 .

THE COURT : Without probable cause . So you ' re

challenging the sufficiency of the allegations within

the warrant .

ATTY . SCHOENHORN : Yes . Similar to when one

would have a complaint , one would file 'a motion to

strike in a regular civil case as to whether the

allegations are sufficient to even proceed with a

hearing .

THE COURT : All right . So I guess this is the

first step along the way , and the state has seen this

motion for the first time and hearing of these claims

for the first time and it would seem that we need to

give the state an opportunity to research the issues

presented and then , do you see the motion requiring

evidence , Mr . Schoenhorn , or is it something that is

done on the papers and on argument of counsel?

ATTY . SCHOENHORN : I believe that this motion is

argument , it ' s argument on the face of the papers ,

although

THE COURT : So it ' s a four corners --

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ATTY . SCHOENHORN : -- although my knowledge --

if the state was going to claim well , that the --

let ' s say the challenge was to the marshal ' s return

of service , if there had been one , all right . If

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If there ' s none the Court decides it on the papers .

there ' s a question of , let ' s say , whether abode

service was sufficient , you call the marshal , he

testifies where he left it , what efforts he made .

But I submit that on the face of these documents

there ' s not only insufficient service under the

Practice Book , there is no service which therefore

specifically violates 29 - 38c in its requirements ,

therefore that would also go to - - that this is

subject matter jurisdiction as well as in personam

because this is a constitutional right that ' s being

infringed on . And if the Court has look at State v .

Reddy, which I believe we handed up to the Court --

THE COURT : I did .

ATTY . SCHOENHORN : -- before the lunch break , it

seems to make clear that the term " shall " in this

status is mandatory subject , however , to waiver , and

in that case the waiver by the defendant and there ' s

certainly no waiver -- I want to be -- here --

THE COURT : Well , I mean , I guess we ' ve started

the hearing .

ATTY . SCHOENHORN : Right .

THE COURT : So I don ' t think there ' s any issue

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really as to the timeliness of the proceedings .

Today is , if I understood correctly based on our

discussions , wi thin the 14 days that 29-38c requires .


THE COURT : But I suspect hav ing started now

with the receipt and preliminary argument from the

respondent on the motion to dismiss it is appropriate

for the Court to allow the state to have an ample

opportunity to respond to the motion . So I suspect ,

unless I am convinced otherwise , that I ' ll be

continuing the case today to a later date at which

time I will be expecting the defense -- I ' m sorry ,

the state to be prepared to respond to the state ' s

[sic] motion to dismiss the

ATTY . SCHOENHORN : You mean the defense motion .

THE COURT : Well , the respondent ' s motion ,

right . The respondent ' s motion , I may have misspoke ,

but -- and it would seem to be useful for the parties

up until that date to discuss whether there will be

the need for any evidence to be received by the

Court . If Mr . Schoenhorn is correct that these

documents were not served on the defendant and the

state feels that that is correct then I guess the

parties can agree to that . If the state feels that

service wasn ' t required or that there was some

functional equivalent of that then the state can

argue that , but I guess one of the things that would

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be useful is to have the parties consult before the

date , our next date , so that we can proceed on the

date we choose .

So is there anything else we can do today to

make any other progress on the motion?

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ATTY . SCHOENHORN : If I - - I think perhaps . If

I may .

(Pause)

ATTY . HANS ; Your Honor , on behalf of the state

I ' d like to formally , under Practice Book Section 10-

31a , I am the adverse party being the recipient of

this formal motion to dismiss that just was handed to

me and was just filed to the court . There are five

separate legal grounds. Of course , Mr . Schoenhorn

has done his homework , they ' re very complex issues ,

he ' s very thorough . We are at a distinct

disadvantage and are not , because we were just served

this , able to go forward more in the in rem hearing .

I know we started it and I ' ve certainly submitted an

exhibit for identification .

THE COURT : No . I ' ve already said . It ' s my

impression that the thing now to do is to pick a date

so that you have a chance to get up to speed . The

motion was filed in court , you know , 10 minutes ago ,

and we need to give the state some time to reply as

it deems appropriate . So is there anything - - having

commenced the hearing and because this issue , I think

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by law , must be taken up first before anything else

can be decided .

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ATTY . SCHOENHORN : I ' m only stating , Your Honor ,

that to the extent that the Court has now indicated

that it ' s giving the state time to respond , I want at

least for the record very clearly state I object ,

that I believe the statute specifically mandates that

t he hearing be held within the 14 days , and Reddick

as I read -- I mean Reddy rather , R- E- D-D-Y .

THE COURT : Right . That ' s at 135 Conn .

ATTY . SCHOENHORN : I believe it ' s very clear

that it ' s mandatory . I would just also then add

that , I ' m not sure in Reddy they specifically argued

this , but because it implicates second amendment

rights , that it therefore would and under U. S .

Supreme Court precedent the second amendment is

deemed as imp ortant as the first amendment , who knew .

But in any event , because of that it is an

infringement of the most fundamental right , and

therefore , I submit , that the terms are very

stringent , similar to when we have restraining

orders , family law , domestic violence restraining

orders , the hearing must be held within 14 days

unless the parties agree to a continuance . So having

said that , whatever ' s going to happen is going to

happen , but I do not want the record to suggest that

I acquiesced in that without maintaining that we need

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to go forward with the full hearing and make the

determination about the sufficiency of the

proceedings .

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THE COURT : So it would be your position , having

filed this , the state has to be now prepared to

address constitutional questions , probable cause

issues , service questions , all between 4 : 10 p . m. and

tomorrow at 5 : 00 and the Court has to independent

review your claims , the claims of the state and issue

its ruling by tomorrow?

ATTY. SCHOENHORN : Well , at least let -- the

record should reflect that my copy of the motion ,

wi thout knov,ring the docket number , was handed to Ms .

Hans this morning before ten o ' clock or right around

10 : 00 a .m.

THE COURT : All right . That even by -- we ' ll

start at ten o ' clock .

ATTY . SCHOENHORN : Okay .

THE COURT : So it would still have to - - that

would still be your position?

ATTY . SCHOENHORN : Yes. As was the fact that a

lawyer, not my client , but the lawyer for Mr . Taupier

became aware of this proceeding yesterday late

afternoon from an e-mail and voicemail from the

clerk . So to the extent that I spent a good deal of

my evening right after dinner researching all of this

for today , and I appreciate Ms . Hans ' comments about

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my thoroughness , I was clearly not as thorough as I ' d

like to be .

THE COURT : Well , are you going to want to brief

this as well or not ?

ATTY . SCHOENHORN : No . I ' d like it I ' d like

to be heard on the arguments and looking at -- on the

face of the documents it ' s my position that the Court

could make that determination . However , like I said ,

I just want my position at least clear on the record .

THE COURT : All right . Well , I will make two

findings \VeIl , I ' m going to make two corrunents in

response to that , also for purpose of the record .

No . 1 , we have begun the hearing in the Court ' s view

with the first order of business having be to

determine this Court ' s jurisdiction to go any

further .

Secondly , I don ' t think the Reddy case in which ,

I believe the first sentence of the opinion or very

near that says , both parties agree this should be

reversed , which is a little different than what we

have here . So I don ' t think the issue about the 14

days being extended for good cause has really been

foreclosed by Reddy . But I think the case has been

started in a timely fashion and secondly , I think

having done so it is now appropriate to allow the

issues, which admittedly are complex and involve

constitutional and statutory interpretation , should

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be fully addressed by this Court and not in a summary

fashion . Both parties should have an opportunity to

litigate this so that the interests of their

respective clients can be protected .

So , Attorney Hans , how much time would you like

to reply? When I say "replyH I don ' t mean

necessarily in writing , though you are certainly

invited to do that and direct the Court to any case

law . I suspect there will be little and Mr .

Schoenhorn has indicated he ' s not going to be

briefing the issues , leaving the Court to do its own

research as to whether or not this statute involves a

violation of the constitutional right to bear arms ,

which one would see as a somewhat complex question ,

but ...

ATTY . HANS : Your Honor , I ' m simply asking for

what the Practice Book allows me under 10-31a , that

I -- any adverse party -- and I ' m quoting it

directly -- any adverse party shall have 30 days from

the filing of the motion to dismiss to respond to the

motion to dismiss by filing and serving, in

accordance with Sections 10-12 through 10-17 , a

memorandum of law in opposition , and where

appropriate supporting affidavits as to facts not

apparent on the record . I would submit to the Court

that I also under those provisions, 10-31a , I would

be submitting my memorandum at least five days before

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the actual hearing and to give Attorney Schoenhorn

notice .

I , as far as -- I agree with the Court , we ' ve

started this hearing and I don ' t think there ' s any

case law that Mr . Schoenhorn can cite that says we

have to complete the hearing within the 14 days . I ,

myself, have five witnesses and other exhibits aside

from the pre - marked exhibits that I ' ve already

i dent ified with the Court .

There ' s one other thing I wanted to say , Your

Honor , just for the record . There are a bazillion

cases where a judge , finding good cause , can continue

right in the middle of trial. If it ' s a speedy trial

motion and you ' re supposed to be within the 120 days ,

if good cause is found then it can be continued .

THE COURT : I ' m aware . I ' ve already found that

we have begun the hearing and feel there is good

cause to proceed in the manner that I ' m now

identifying .

But , Mr . Schoenhorn , having stressed that this

is a civil matter , how do you respond to the state ' s

claim then the rules of civil the Practice Book

rules should apply and therefore counsel should have

30 days to reply?

ATTY . SCHOENHORN : Well, I believe that the

language of the statute supersedes the generic civil

rules , just as in restraining orders and there are

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other special , I believe , there are other special

kinds of hearings that have to be held within a

certain period of time . If there ' s a preliminary

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injunction filed , the fact that the opposing party

files a motion to dismiss does not automatically

delay if , let ' s say , an infringement of First

Amendment rights it doesn ' t automatically go another

30 days . Having said that , however , all right , I

don ' t necessarily - - well , let me be clear , I don ' t

agree that the hearing has actually started because

\-le ' re talking about it -- a hearing means under the

definition of due process , witnesses are called ,

evidence is presented .

THE COURT : Well , now wait . You filed a motion

challenging my jurisdiction .


THE COURT : I can ' t go beyond that . Do I

understand the civil law enough to know that must be

addressed immediately when raised?


THE COURT : Or cannot proceed further .

ATTY . SCHOENHORN : Yes . But I -- so my position

simply is that in light of the specific time frames

in the statute , that the 30-day rule doesn ' t apply in

the Practice Book the statute itself supersedes the

generic time frame for pleading and whatnot .

THE COURT : And it would then require the brief

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and response to pleading to be done within less than

24 hours so that it could all be --

ATTY . SCHOENHORN : That \.;ould be my request .

THE COURT : All right . Well , the Court is going

to give the state what it bel ieves is ample

opportunity , but at the same time will attempt to

recognize that the spirit of this statute at 29-38c

is for a defendant or a respondent or an individual

whose guns are seized , to have an opportunity for

prompt review of that seizure . I ' m going to direct

the state to be prepared to present argument in a

shorter period than the 30 days .

Now f Mr . Schoenhorn .. .

ATTY . SCHOENHORN : May we go off the record then

if we ' re going to discuss timing , just do it off the

record for a moment then?

THE COURT : Okay .

(Discussion off the record . )

THE COURT : So we're now back on the record

having had an opportunity off the record to discuss

scheduling . It had been the Court ' s already stated

intention to direct the state to be prepared to argue

the motion in less than 30 days and also to submit

any filings , responsive pleadings in less than 30

days as well , attempting to balance the Practice Book

rules against the special rules in 29-38c . But

having had a chance to discuss the weeks ahead with

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counsel , I ' m advised that Attorney Schoen horn is

already ordered to begin jury selection on Monday ,

this coming Monday .

ATTY . SCHOENHORN : Yeah , yeah .

THE COURT : So three days from now .


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THE COURT : And he anticipates that after jury

selection evidence will begin and won ' t conclude

until October 3 rd with jury deliberations perhaps on

the 7th . So \vhat I will order is as follows : The

state is directed to reply in writing , if it chooses

to do so , no later than September 30 th , and we will

then have our argument on October 9th I and I would

suggest we schedule that for eleven o ' clock and that

way I can handle the few cases that I have that day

before then . All right . Now , so the hearing on the

29-38c seizure is continued for further proceedings

before this Court on October 9 th

Now , Mr . Schoenhorn , you ' ve asked to be heard

with regard to certain other aspects of the criminal

case .

ATTY . SCHOENHORN : Yeah . And just before we go

to that , I just want to make sure that - - assuming

the Court agrees with any of my grounds for the

dismissal , that it dismisses the matter that would be

the end of that risk -- that hearin g under 29-38c is

done unless the state appeals . But besides that , if

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the Court denies the motion , is it my understanding

that the state should be prepared sometime during

that same day to go forward even if it ' s an hour or

two later ? In other words, it should have witnesses

on call , so that I should block off that entire day .

THE COURT : Well , that ' 5 a fair ... well , I hadn ' t

really thought -- I hadn ' t thought about it . How

long do you see the arguments going?

ATTY . SCHOENHORN : Well , the argument , less

than

THE COURT : Well , I mean , I see the -- when we

start at eleven o ' clock on the 9th , you ' ll maybe add

some substance to this , I guess . I ' ll have reviewed

the documents and reviewed any filings of the state .

r mean , do you see the hearing taking more than ... !

mean , do you want to do it the next day? I mean ,

what ' s your schedule on 10/10 or the following

Monday -- oh , no , the Monday is the holiday . Monday ,

I think , is the holiday . 10 / 10 isn ' t t hat busy , we

could do the hearing on 10/10 .

ATTY . SCHOENHORN : Well , again , subject to my

objection to any continuance though I ' m available on

the 10 th .

THE COURT : Well , why don ' t we do this , let ' s

have everybody reserve 10/10 as well , but , Mr .

Schoenhorn , it may well be as we get a little closer

if the issues are as clear as you suggest they might

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be then maybe I ' ll have a better sense . I mean , I

don ' t want to -- the witnesses -- the state

represents were here most of today in anticipation of

going forward , if I can avoid having them sit here

all day on the 9th only to learn that they needn ' t

have been here in the first place . I would certainly

accommodate them to the extent I could and would your

witnesses as well if you care to call any . So why

don ' t we , for the time being , keep the loth open as

well , but maybe as we get closer to the 9th we ' ll

have a better idea .

All right . Now , what about your other areas?

ATTY . SCHOENHORN : I ' m sorry . Ms . Hans has a

THE COURT : Yes .

ATTY . HANS : Your Honor , just before we leave

the risk issue I just want to put the defendant on

notice and just let the Court know that , you know ,

there is in Taupier v . Taupier , the civil case , we

believe there was an agreement the guns should have

already been turned over and they ' re also anticipated

to be seized as evidence in the threatening case , so

even if you make the finding that there ' s no imminent

threat and order the release of them there are other

avenues in which these firearms are held .

ATTY . SCHOENHORN : I think in chambers we had

this discussion . There ' s no question that there are

other orders currently in place that would not --

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would preclude the weapons going back at this time to

my client . The issue is a procedure has been filed ,

a civil suit has been filed that seeks certain relief

and I ' m entitled to challenge that and fight it

along -- you know , the choice is whether to do that

and that was the state ' s not mine , so .

THE COURT : Well , Ms . Hans , I mean , my initial

impression is in accord with that just stated by Mr.

Schoenhorn , that it would seem that there is an

action pending which requires adjudication . It may

not work any immediate pract ical relief with regard

to the items seized , but to the extent that the 29 -

38c process has collateral consequences , those

consequences need to be the subject of a hearing

before they could be allowed to occur . So I

suspect -- I mean , the re ' d be one -- the state could

withdraw and just determine it's going to hold the

\veapons under what Mr . 5choenhorn says, may be other

ways, but then the state would lose any right to seek

other relief under 29-38c . But as it goes right now

I can ' t , I don't think , say , well , I ' m not going to

rule on this because you ' re not getting the guns back

anyway.

ATTY . HANS : I understand , Your Honor . I just

wanted to alert the Court.


So , Mr . 5choenhorn , what else did you want to be

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heard on with regard to now the criminal case , which

is the threatening file , the docket number of which

is CR- 14-675616 , it charges threatening first ,

harassment second .

ATTY . SCHOENHORN : Okay . A couple of things .

And this has to do with the conditions that the court

had imposed that might have had collateral

consequences that were not necessarily contemplated

during the orders , and aside from the two separate

large cash bonds that had to be imposed and then

there were conditions imposed in Hartford , over

severa l days and coming up with additional arguments ,

then the case is transferred here . I believe that

there ' s one thing that can be resolved quickly . I

want to make sure in light of the fact that my

that Mr . Taupier was not allowed to come to my office

to meet with me , that that is clearly now the Court

will make clear on the record that he has the right ,

you know , and he can discuss it with CSSD , obviously ,

and let them know when he has those appointments , but

he has the right , subject to notifying them , to come

to meetings at my office .

THE COURT : What are the orders - - may I see the

threatening file , please?

(Pause)

THE COURT : Did the defendant first appear

before Judge Alexander on 9/ 2 on the threatening

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charge , am I looking at the right ...

ATTY . SCHOENHORN : He was held on a cash bond

that was posted -- that was ordered in the warrant

itself by Judge Mullarkey , but he was released over

the weekend and given a court date which he was

subsequently telephoned to come in before the date

that had been assigned .

THE COURT : So did he shoH up the day after

Labor Day ?

ATTY . SCHOENHORN : Yes , he did .

THE COURT : Okay . That ' s 9/2 . And then the

bond was increased then?

ATTY . SCHOENHORN : To -- by - - yes .

THE COURT : By Judge Alexander .

ATTY . SCHOENHORN : To $75 , 000 cash .

THE COURT : Increased by 40?

ATTY . SCHOENHORN : 40 more , right . Right .

THE COURT : Right .

ATTY. SCHOENHORN : Which was posted , I guess ,

that night .

THE COURT : Al l right . Well , then there ' s an

issue that needs to be addressed because one of the

orders of Judge Alexander is that the defendant must

stay 1 , 000 feet away from Judge Bozzuto .

ATTY . HANS : In family , Your Honor .

ATTY . SCHOENHORN : Right . I haven ' t measured

the distance from the family court to my office , but

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it ' s -- if it ' s not 1 , 000 feet it ' s close to that .

My office is hear -- it ' s right behind the criminal

court on Lafayette Street then you -- so you have

that entire parking lot , however wide that is , then

you have Lafayette Street , you have the --

THE COURT : I know where your office is . And

frankly I don ' t know where Judge Bozzuto sits , but

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ATTY . SCHOENHORN : Well , family court is over on

90 or 80 Washington , it ' s one of those next to the

state police barracks on Washington Street . And I

don ' t know where her chambers is in relation to that

building as well .

THE COURT : So what ' s the state ' s position on --

ATTY . HANS : Your Honor , I ' m just very concerned

about it given the nature of the threats . I mean ,

the judge ' s order -- Judge Alexander ' s order was very

explicit , stay 1 , 000 feet away from Judge Bozzuto and

her family . Given the proximity of his office to

where she \vorks daily Monday through Friday I have

some , I have some real concerns about it .

THE COURT : I mean , Judge Alexander further

ordered -- oh , did the defendant then return to court

on the Wednesday?


THE COURT : So he was there and then when he

returned on Wednesday - -

ATTY . HANS ; Tuesday and Wednesday , 9/ 2 , 9/3 .

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ATTY . SCHOENHORN : So the judge had

THE COURT : On Wednesday there were further

conditions that prohibited the defendant from the

town of residence of Judge Bozzuto .

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ATTY . SCHOENHORN : Right . Which isn ' t Hartford

or Cromwell , so.

THE COURT : I suspect it was certainly the

intention - - well , what ' s the state ' s position on

this?

ATTY . HANS : Your Honor , my position is that he

not be allowed to go to Mr . Schoenhorn office because

it is right adjacent to the family court , there ' s no

reason they can ' t meet at a neutral site that is not

in the close proximity to the judge . So that would

be the state ' s position and I think that ' s complying

with the black letter of Judge Alexander ' s orders .

So I would - -

THE COURT : Well , Judge Alexander ' s orders have

to be considered at least giving due deference to the

defendant ' s Sixth Amendment right as well , so I can ' t

be blind to the defendant ' s right to meet with Mr .

Schoenhorn .

ATTY . HANS : And no one ' s saying that , Your

Honor . He has a Sixth Amendment right to counsel and

he can certainly meet at a location that ' s convenient

to both he and his attorney , just not at the 108 Oak

Street , which is in very close proximity to the

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family court .

THE COURT : Well , I ' m not in a position to

determine whether or not your office within 1 , 000

feet or not . I mean , it ' s in relative close

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proximity , but I have no idea if it ' s a quarter of a

mile away or more or less , it ' s a little less than , I

guess , a quarter of a mile , 1 , 000 yards . Or it is

1 , 000 feet or 1 , 000 yards? A thousand feet .

ATTY . HANS : Feet .

ATTY . SCHOENHORN : I think it may be more than

that because then we ' re talking about my office isn ' t

in my parking lot , which is behind my building and

THE COURT : But you know what , this is not

the -- Mr . Schoenhorn , let me ask you this

question --

ATTY . SCHOENHORN : There ' s no reason my client

needs to go in front of or behind the family court

building . So to the extent that he has to make a

circuitous route to get to my office , my office is on

a one-way street and then as you leave there you get

to -- directly to I-84 . I could -- since he lives in

Cromwell , require that he take Route 9 up to 84 and

get off at the Capitol Avenue exit and come down Oak

Street and go around the block that way, so then he

never has to be near the family court except that

there ' s also the issue the case has not yet been

transferred . Attorney Mathers pointed out that his

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family matter isn ' t --

THE COURT : When is that case down next?

(Pause)

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ATTY . SCHOENHORN : The 16th I but I know that a

motion has been filed \vith Judge Sim6n to transfer it

here , but if it needs your

THE COURT : By Attorney Mathers?

ATTY . SCHOENHORN : By Attorney Mathers , and I

got a text that she didn ' t knOH whether it requires

your approval as the administrative family judge for

this court , but it would certainly be my client ' s

request that it be allowed to corne here if that ' s

what Judge Simon orders , because that would be the

same building .

THE COURT : All right . But as it stands now the

defendant has been ordered to appear before Judge

Sim6n in Hartford on the 16 t h ?

ATTY . SCHOENHORN : Well , his next date for his

hearing is the 16 t h

THE COURT : Right .

ATTY . SCHOENHORN : But that conflicts with

Judge -- with the pending order regarding staying

aHay from Judge Bozzuto . It doesn ' t say stay away

from the family court , so that depends on whether

Judge Bozzuto ' s even working that day , which is of

course that ' s a problem .

THE COURT : All right . Let me ask you a

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question , Mr . Schoenhorn , do you have any

intention -- I ' m asking you as an officer of the

court -- to be meeting with Mr . Taupier before Monday

the 15th ?

ATTY . SCHOENHORN : No , not before Monday .

THE COURT : Then here ' s what I would ask , I see

the issue but I do think that this all I would

like to call to find out if the family case is being

transferred here . I would like to issue one order .

I will not deprive Mr . Taupier of his right to see

you , if you ' re not going to be seeing Mr . Taupier

before Monday then I will issue an order on Monday

and you can contact the clerk ' s office and it would

enable you to see Mr . Taupier as soon as Tuesday if

you wish to . I am reluctant to impose -- and you ' re

certainly able to see Mr . Taupier in any other

location .

ATTY . SCHOENHORN : That ' s correct , but in terms

of my computer access and this is a computer case and

so there ' s --

THE COURT : There is -- you ' re not deprived from

going to another location , but there is an order that

prohibits you and it may well be that your office is

within that area , as I suspect going to the family

court would be .

ATTY . SCHOENHORN : Well , that ' s why I ' m asking

for a modification of that order and

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THE COURT : Right . So I have to see -- and I

want to issue one order . I don ' t want to have this

issue come up again on Tuesday , so . You may see Mr .

Taupier if you wish to before that date , but I ' m

going to prohibit Mr . Taupier from being at your

office until further order of the court which will be

issued on Monday the 15th

ATTY . SCHOENHORN : Okay .

THE COURT : What else?

ATTY . SCHOENHORN : The second issue is , again ,

it was asked by Attorney Mathers for me to mention it

to the Court , there is the issue of Judge Sim6n --

there was -- before this there was equal parenting of

these children , they lived half the time with my

client, half the time with the wife . Now as a result

of this Court ' s order , not Judge Alexander ' s order ,

because it ' s a 24-hour otherwise lockdown , there

isn ' t an exception for even going to the court

authorization , supervised visitation location , which

I understand is in Vernon .

THE COURT : Right . I heard Rockvi lle .

ATTY . HANS : Kid Safe .

THE COURT : That was what Attorney Mather said

earlier this week .

ATTY . SCHOENHORN : Right . And I did read the

note . I mean , there ' s a length y notation of Your

Honor ' s ruling on that . I ' m asking that that be

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modified that , again , as long as CSSD specifically

confirms the time and whatnot of those appointments

that he be allowed to see his children . He hasn ' t

been able to see his children since the well ,

certainly since his arraignment , so that ' s now

been

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THE COURT : I understood I was only - - there was

one meeting that was , I think , scheduled for

yesterday. The only visit that I was aware of that

the defendant would have been having with his

children was Wednesday supervised visitation in

Rockville . And I said that I'm not going to permit

and the parties will be back in court on Thursday .

So tha t was --

ATTY . SCHOENHORN : And now here we are .

THE COURT : And here we are . Okay . So when is

your client next to see his children?

ATTY . SCHOENHORN : He was supposed to have

\Veekend visitation , but because -- Saturday but

now that because he was unable to get -- go to this

hearing with Judge Simon I ' m not sure and nor does he

know what the current status of that is because Judge

Simon , obviously when he said you have this meeting

in Rockville and we ' ll go from there , but the court

said he can ' t go there so I don ' t know the answer to

that question .

THE COURT : Well , what ' s the state ' s position on

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what the order should be as we go forward here? We

may not -- other than the order which I ' ll issue on

Monday concerning Judge Bozzuto ...

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ATTY . HANS : Your Honor , my concern is this , I

don ' t know if the Court is in receipt of the

intensive pre-trial supervision progress report dated

today , 9/11/14 .

THE COURT : I ' m not .

ATTY . HANS : Just ask that you take a minute to

review it and ...

(Pause)

ATTY . HANS : And , Your Honor , because there was

more or less zero tolerance issued regarding his use

of electronic monitoring bracelet and it appears from

the progress report that he has violated that .

Again , I have grave concerns about him leaving to go

to the Kid Safe program in Vernon to visit his

children when it ' s clear that he ' s , in the state ' s

position , it appears that he is testing this device ,

determining whether or not he can go under the radar .

So I have some real concerns about -- and in the

progress report ' s opinion violating the zero

tolerance that the court very expressly and

explicitly set out .

THE COURT : Mr . Sc hoen horn .


hearing on that issue .

I would like to have a

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37


ATTY . SCHOENHORN : First of all , the device

doesn ' t have a timer on it . He sits for -- and he ' s

tethered -- he cannot move physically for two hours ,

there ' s a six to eight foot cord , if he moves it

disconnects . So I would submit that , first of all ,

the order was the 2014 instructions is what he had

been given so you have to sit for an hour to record

it , so the fact that they today , today made him sign

a 2012, that is a two and a half year old

instructions , that say you have to sit for t\vO hours

twice a day , that means for four hours a day he

cannot -- he has to sit by a \.JaI l tethered to a short

cord and document and it he moves at all it

disconnects . So I would submit that that is now --

THE COURT : So do we need a hearing on this?

ATTY . SCHOENHORN : So the claim is that -- the

c laim is he was a minute and maybe 50 seconds short

of two hours , that ' s the c laim of non-compliance and

I submit that not only -- and he has to do that twice

a day not on l y to have to sit and not move , they

don ' t even require that of people in solitary

confinement at Northern Correctional . So I would

submit that he ' s looking at a wall clock and it ' s an

analog clock and who knows , he doesn ' t know , it

doesn ' t beep , it doesn ' t tell him exactly when two

hours , so I stand here to have her argue that he ' s

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testing the court because he was a minute -- because

the machine said it was a minute and 50 seconds short

or two hours that he actually then moved and

therefore it disconnected .

THE COURT : All right . Well , we ' re going to

need a hearing , I guess , on the adequacy of the

charging . I have to hear evidence on what the

charging requirements are to make sure the device

continues to work properly . I can't make any

findings on this . Mr . Schoenhorn apparently is going

to introduce evidence that the charging is completed

in less than two hours . The state has claimed and

the Court worked under the evidence it had earlier

this week that it required two hour continuous

charging . I ' m not in a position to make a finding as

to what ' s required . So I think we ' re going to -- and

you know what , this will also -- I ' m going to order

the parties to come back , we can have the hearing on

Monday .

ATTY . SCHOENHORN : I have jury selection on that

day .

THE COURT : Oh , you ' re starting on Monday . So

Hhen are we gOing to do the hearing? I don ' t have

tomorrow , I just do not have any opportunity , there ' s

108 cases down . Do you ...

ATTY . SCHOENHORN : I ' m off the following week

from the trial . In other words , we ' re picking a jury

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then we have a week off .

THE COURT : Okay . So the 22nd is a Monday .

Well , but the only thing is , Mr . Schoenhorn , and the

reason I said do it Monday , I am not inclined to

relieve or to modify any of the more stringent

conditions that I put in place earlier this week

unless I ' m persuaded that this device is being

handled properly or charged properly . So I ' m ready

to do the hearing as early as Monday . If you want it

to be the following Monday then I ' m going to leave

all the orders that I entered earlier this week in

place until Monday the 22nd at which time we can have

a hearing on this device and decide where we go from

here . I will still issue the order , though , on the

15 th to see whether or not - - the order I ' ll issue on

the 15 th , which you can obtain from the clerk , will

be to establish ground rules by which Mr . Taupier can

come to your office .


THE COURT : And then on the 22 nd I will be

available to which is your first day available

after Monday to hear evidence on the charging .

And , aga i n , I would urge the parties to work with one

another to identify what really needs to be addressed

by the Court because I suspect I ' m going to need to

hear from the monitoring company to know I don ' t

know what it says on some 2012 form or 2014 form ,

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you ' re telling me they exist , I assume that they do .

The quest ion is , in my mind , what is necessary to

ensure that this GPS device produces the information

which it is placed on the defendant to provide . And

that ' s what is going to be required .

So , Mr . Schoenhorn , with the exception of

issuing an ordering on Monday the 15th concerning

your right to have your client come to your office , I

will reserve all my other rulings until the 22nd ,

ATTY . SCHOENHORN : And I ' ll just note , the other

issue that I would raise , and I don ' t mean to keep --

THE COURT : Yes .

ATTY. SCHOENHORN :

It ' s 10 of 5 : 00 .

is the order by Judge

Alexander . I apologize , I think this morning I

thought you had issued the order , but it was Judge

Alexander that requires my client to submit to --

THE COURT : Random searches of his person .

ATTY . SCHOENHORN : -- random searches of his

person, his home and his vehicle . I be lieve that is ,

with all due respect , blatantly unconstitutional and

wou ld never be a reasonable order for bail

conditions , one does not - - certainly does not l ose

their Fourth Amendment rights because of conditions

of bail , especially if he ' s locked down there ' d be no

reason for anyone to come into his house and say

we ' re conducting a random search of your house or

your person and I would --

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THE COURT : Well , I don ' t know if the lockdown

issue is what ' s important because , I mean , certainly

others can deliver things to the defendant \.,rhich he

is not permitted to possess , so the right of

inspection might be to ensure that the defendant

hasn ' t come into possession of anything prohibitive ,

but the fact that he ' s locked down doesn ' t eliminate

entirely the possibility that there could be such a

violation , but we can address that as well on the

22nd

ATTY . SCHOENHORN : Right . That ' s the other

issue I intend to address .

THE COURT : All right . So we ' re going to

address on the 22nd the charging , and I suggest that

there ' s efforts made by both sides to contact the

monitoring company to determine what ' s necessary .

ATTY . SCHOENHORN : Right . And I ' m actually -- I

shared this with

ATTY . HANS : He did . Thank you , Your Honor .

ATTY . SCHOENHORN : Ms . Hans , so I ' m just

going to hand up and make it part of the record so

the Court is at least aware of what I ' m talking

about . This is the --

THE COURT : All right . Marshal .

ATTY . SCHOENHORN : -- instructions that were

given from the monitoring company and it ' s July 2014

dated , so at least the Court is aware of that . There

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is one from 2012 that has different information .

THE COURT : And it ' s signed -- that ' s the one

that the defendant was

ATTY . SCHOENHORN : He signed it today , today _

THE COURT : But that ' s the one that says two

hours?

ATTY . SCHOENHORN : That ' s right .

42

THE COURT : Do we know if the device is do we

know if these instructions are pertinent to the

device -- which of either is pertinent to the device

with which the defendant has been equipped .

ATTY . SCHOENHORN : You would have to ask the

CSSD official who had him sign it today .

THE COURT : All right . Well , I suspect that

there will be efforts made by both sides to reach out

to the proper parties to make those determinations .

All right .

So , Mr . Schoenhorn , to summarize we will be

continuing the firearms hearing to October 9th , with

the state ' s responsive pleadings or filings due no

later than September 30 th We will also be back in

court here on the conditions of the defendant ' s bond

on t h e 22 nd of September and on the 15th of September .

I will issue an order setting forth the terms by

which the defendant may see Mr . Schoenhorn at his

office . And your address , Me . Schoenhorn , is on Russ

or Oak?

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ATTY . SCHOENHORN : Oak , 108 Oak Street .

THE COURT : 108?


THE COURT : 108 Oak Street . All right . Does

that conclude today ' s business , Counsel?

ATTY . HANS : Yes , sir .

ATTY . SCHOENHORN : Yes . Yes , Your Honor .

THE COURT : All right . I will see the parties

back here on Monday , September 22 nd . Thank you .

Adjourn court .

(Proceedings end at 4 : 52 p . m. )

43

MMX-CR14-0675616T i MMX-CR13-0200821T STATE OF CONNECTICUT

MMX-CVI4-54

SUPERIOR COURT

STATE OF CONNECTICUT JUDICIAL DISTRICT OF

MIDDLESEX

v. AT MIDDLETOWN ,

CONNECTICUT

EDWARD F . TAUPIER SEPTEMBER 11 , 2014

C E R T I F I CAT ION

I hereby certify the foregoing pages are a true and

correct transcription of the audio recording of the above-

referenced case , heard in Superior Court , Judicial District of

Middlesex , Middletown , Connecticut , before the Honorable David P .

Gold , Judge , on the 11 th day of September 2014 .

Dated this 22 nd day of September 2014 in Middletown ,

Connecticut.

'.

Court ilson v Recording Monitor

11sept MMX-CR14-0675616T

Documents

Transcript of 11sept MMX-CR14-0675616T