author: Foti, J.

text:
    Rose Capen v. General Dynamics Corporation/Electric Boat Division et al.
    (13217)
    (13218)
    Foti, Schaller and Freedman, Js.

      Argued March 14
    decision released May 30, 1995

      Lúeas D. Strunk, for the appellants (named defendant et al.).

      Philip M. Schulz, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough and Michael Belzer, assistant attorneys general, for the appellant (defendant second injury fund).

      Nathan Julian Shafner, with whom were Matthew Shafner and, on the brief, Amy M. Stone, for the appellee (plaintiff).
   Foti, J.

This is an appeal by the defendants General Dynamics Corporation/Electric Boat Division, CIGNA Property and Casualty Company, Aetna Casualty and Surety Company and the second injury fund (defendants) from a decision of the compensation review board affirming in part and reversing in part an award of the workers’ compensation commissioner (commissioner) for the second district. The plaintiff is Rose Capen, the widow of Weston Capen.

The commissioner made the following findings that are pertinent to this appeal. The plaintiff and the decedent were married on May 15,1942. The decedent was an employee of Electric Boat (employer) in Groton from 1952 to 1970 and from 1976 to 1981. On April 28,1980, the decedent was examined by John Balmes, a physician at the Yale University Occupational Medicine Clinic and diagnosed with asbestosis. The decedent continued to work until his retirement in December, 1981. By December, 1982, his condition had worsened to the point where he had difficulty leaving his home due to shortness of breath. On March 10,1983, the decedent was examined by Laura Welch, a physician at the Yale University Occupational Disease Clinic. His chest X ray showed pleural plaques and increased interstitial markings consistent with asbestosis. On April 30,1983, the decedent was admitted to Lawrence and Memorial Hospital with a diagnosis of pneumonia, chronic obstructive pulmonary disease, and asbestosis. When he was in the hospital, a massive bronchial obstruction was discovered. The decedent was referred to Boston University Medical Center, where the obstruction was diagnosed as squamous cell carcinoma or lung cancer. The decedent’s condition worsened until September 25, 1983, when he died of metastatic lung cancer.

On September 28,1983, the plaintiff filed a claim for survivor’s benefits under the Workers’ Compensation Act, General Statutes § 31-306. She claimed that her husband’s lung cancer and death were caused by “exposure to asbestos and other carcinogens” while employed at Electric Boat. In support of her claim, two of the decedent’s former coworkers testified about the extent of the decedent’s asbestos exposure at Electric Boat. The defendants argued that the plaintiff failed to file a notice of claim within one year of the first manifestation of the occupational disease, as required by General Statutes (Rev. to 1983) § 31-294. The notice provisions of the Workers’ Compensation Act are now included in General Statutes § 31-294c. They also argued that any liability for compensation should be apportioned to reflect asbestos exposure that allegedly occurred while the decedent was employed by the Bethlehem Steel Company in Quincy, Massachusetts.

The commissioner for the second district issued a finding and award on March 17, 1992. The commissioner found that “Weston Capen’s death due to lung cancer was caused by his exposure to asbestos, part of which was at the workplace of the respondent employer and part of which was with the Bethlehem Steel Company.” The commissioner further found that the plaintiff filed a timely notice of claim in that she “filed a [njotice of [c]laim for [compensation in the office of the undersigned within one year of the date of death as required by § 31-294.” The commissioner found that 43 percent of the decedent’s asbestos exposure occurred while he worked for the Bethlehem Steel Company, an out-of-state employer over which Connecticut has no jurisdiction. The commissioner then apportioned the liability between the two employers, decreasing the plaintiffs award by 43 percent.

The defendants appealed from the commissioner’s finding and award to the compensation review board. They argued that the plaintiff’s claim for survivor’s benefits was not timely filed, thereby precluding the commissioner from exercising jurisdiction over the claim. The plaintiff also appealed from the commissioner’s finding and award, arguing that the commissioner incorrectly apportioned liability between the in-state employer and the out-of-state employer. On December 30,1993, the board issued a decision upholding the commissioner’s conclusion that the plaintiff had timely filed the notice of claim for survivor’s benefits and reversing the commissioner's reduction of benefits based on the out-of-state asbestos exposure. The defendants appeal from that decision.

On appeal, the defendants claim that the board incorrectly (1) affirmed the commissioner’s decision that the plaintiff timely filed her claim under § 31-294 and (2) reversed the commissioner’s decision apportioning liability for the work related injury. We affirm the decision of the compensation review board.

I

The defendants claim that the board incorrectly affirmed the commissioner’s decision that the plaintiff timely filed her claim under § 31-294. General Statutes (Rev. to 1983) § 31-294 provides in pertinent part: “No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury, provided, if death has resulted within two years from the date of the accident or first manifestation of a symptom of the occupational disease, a dependent . . . may make claim for compensation within such two-year period or within one year from the date of death, whichever is later.”

The commissioner found that the decedent’s death was due to “lung cancer . . . caused by his exposure to asbestos.” The decedent’s lung cancer was diagnosed in the spring of 1983, and he died on September 25, 1983. The cause of death as stated on the decedent’s death certificate was “metastatic lung carcinoma.” The plaintiff filed her claim on September 28, 1983, three days after her husband’s death. On the basis of these facts, the commissioner concluded that the plaintiff’s notice of claim was timely filed under § 31-294. The commissioner found that the decedent died within two years of the first manifestation of a symptom of the occupational disease and that the plaintiff filed her claim within one year from the date of death. The board affirmed those findings and held that the “commissioner properly concluded that the widow’s claim filed within one year of the death of the decedent was timely.”

The defendants argue that the first manifestation of a symptom of the decedent’s occupational disease occurred on April 28, 1980, when the decedent was diagnosed with asbestosis. They argue that he had until the spring of 1981 to file a timely claim for Connecticut workers’ compensation benefits, which he failed to do. Since the plaintiff’s entitlement to benefits is derivative of the claim of the decedent worker, the decedent’s failure to file a claim meant that the plaintiff’s right to file for survivor’s benefits never accrued. The defendants also contend that since the decedent did not die within two years of the first manifestation of the asbestosis, the commissioner was incorrect in relying on the section of the statute that allows a dependent to file a claim “within such two-year period or within one year from the date of death . . . .’’The defendants argue that since the statutory notice requirements were not met, the commissioner and the board should have found that no jurisdiction existed to hear this claim.

In essence, the defendants’ argument is that the decedent’s occupational disease and cause of death was asbestosis, not lung cancer. They argue that the lung cancer was a result of a progression of the asbestosis, and that the commissioner and the board incorrectly concluded that the lung cancer was a new injury that allowed the plaintiff to file her claim for survivor’s benefits.

“In reviewing the factual determinations of the commissioner, the review [board’s] scope of review is limited. The review [board] may not disturb the conclusions that the commissioner draws from the facts found unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” DeBarros v. Singleton, 21 Conn. App. 107, 110, 572 A.2d 69, cert. denied, 215 Conn. 808, 576 A.2d 538 (1990), quoting Fair v. People’s Savings Bank, 207 Conn. 535, 538-39, 542 A.2d 1118 (1988). “ ‘Our scope of review of the actions of the review division is similarly limited. . . . The decision of the review division must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed.’ ” Borent v. State, 33 Conn. App. 495, 499, 636 A.2d 392 (1994).

The commissioner found that the decedent in this case had been diagnosed with two separate illnesses, asbestosis and lung cancer. Both were the result of his exposure to asbestos. The commissioner found that the actual disabling disease was lung cancer. He specifically found that the decedent’s death was “due to lung cancer . . . caused by his exposure to asbestos,” and that the first manifestation of a symptom of lung cancer was in the spring of 1983, well within one year of both the decedent’s death and the plaintiff’s filing of her notice of claim. We have repeatedly held that “ ‘[t]he power and duty of determining the facts rests on the commissioner, the trier of facts.” Fair v. People’s Savings Bank, supra, 207 Conn. 539. On the basis of his findings of fact, the commissioner concluded that the notice requirements of § 31-294 had been met. The board affirmed that conclusion. We hold that the decision of the board was correct in law and was firmly based on the record before it.

II

Next, the defendants argue that the board improperly reversed the commissioner’s decision to apportion liability for the decedent’s work related injury. In his finding and award, the commissioner found that the decedent’s death was due to lung cancer “caused by his exposure to asbestos, part of which was at the work place of the respondent employer and part of which was with the Bethlehem Steel Company.” The commissioner then apportioned the benefit award to reflect this shared liability. He determined that Connecticut had no jurisdiction for 43 percent of the asbestos exposure at work and ordered the defendants to pay the plaintiff 57 percent of the award. This apportionment was presumably based on the length of the decedent’s out-of-state employment with Bethlehem Steel Company. In its opinion, the board held that the evidence introduced in the trial court was insufficient to support the apportionment. The board reasoned that “[wjhile three documents in evidence, all reports by medical providers, do refer to that employment, they do not provide [a] sufficient factual basis to support a finding that the decedent was exposed to asbestos while employed in Massachusetts.”

The defendants argue that the board incorrectly held that the evidence in question, which consisted of medical reports, was inadmissible hearsay evidence. They argue that the evidence was admissible under the following exceptions to the hearsay rule: (1) the treating physician exception given by our Supreme Court in Brown v. Blauvelt, 152 Conn. 272, 205 A.2d 773 (1964); (2) the exception that allows admissions of a party opponent; and (3) the statutory exception found in General Statutes § 52-172, which provides an exception for the declarations and memoranda of deceased persons in actions by or against their representatives. The problem with this argument is that our reading of the board’s opinion demonstrates that it did not hold that the reports were inadmissible hearsay. Rather, the board concluded that the medical reports, while admissible, were uncorroborated hearsay and did not constitute sufficient evidence to support the commissioner’s finding of out-of-state exposure to asbestos. We affirm the decision of the board.

As noted earlier, the commissioner has the power and duty of determining the facts, and review of those factual determinations is limited. See Gibson v. Keebler Co., 37 Conn. App. 392, 394-95, 655 A.2d 1172 (1995). While workers’ compensation commissioners are not “ ‘bound by the ordinary common law or statutory rules of evidence or procedure, [they] shall make inquiry in such manner, through oral testimony or written and printed records, as is best calculated to ascertain the substantial rights of the parties and carry out justly the spirit of this chapter.’ ” Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177, 355 A.2d 227 (1974). No case under the Workers' Compensation Act should be finally determined when this court is of the opinion that through inadvertence or otherwise the facts have not been sufficiently found to render a just judgment. DeBarros v. Singleton, supra, 21 Conn. App. 110.

“[M]atters which bar a recovery or diminish a recovery are ordinarily required to be proved by the employer.” Dombrowski v. Jennings & Griffin Co., 103 Conn. 720, 729, 131 A. 745 (1926). Here, the defendants had the burden of proving facts sufficient to support the apportionment of the plaintiff’s award. The evidence on which the defendants relied for this purpose consisted of three medical reports. The first report was an admission note from Lawrence and Memorial Hospital dated April 30, 1983. It states that “[t]he patient had worked at Electric Boat for upwards of twenty to twenty-five years and prior to that worked in a shipyard at Quincy, Mass. He has had no other occupational exposures to other agents than asbestos.” The second report was a discharge summary from Boston University Medical Center dated May 24,1983. It states that “twenty-five years ago, [the decedent] began working in close contact with asbestos in [a] submarine base in Conn, and Bethlehem Steel in Quincy for ten years prior to admission.” The third report was a letter from Balmes, dated May 29,1980. It states that “[t]he [decedent’s] long history of working in shipyards — twelve years at Bethlehem Steel’s Quincy yard (1940-1952) and twelve more years at Electric Boat (1952-1964) — has caused [him] to be exposed to a considerable amount of asbestos.”

The board held that this evidence was not sufficient to provide the necessary evidentiary support for a finding of out-of-state occupational exposure. The board noted that there was no testimony regarding the type of work done by the decedent while employed by the Bethlehem Steel Company, and that none of the medical reports states the source of information regarding the alleged asbestos exposure in Massachusetts. The board then reversed the commissioner’s apportionment of benefits. As noted earlier in this opinion, our scope of review of the actions of the board is limited. The decision of the board must be “ ‘correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed.’ ” Borent v. State, supra, 33 Conn. App. 499. We affirm the decision of the board that the defendants failed to meet their burden of proving facts sufficient to support apportionment of the plaintiff’s award.

The judgment is affirmed.

In this opinion the other judges concurred.

       During this time, the employer insured its workers’ compensation liability with the defendant insurance companies.

       John Horvath worked with the decedent at Electric Boat from 1950 to 1968. James O’Neil worked with the decedent at Electric Boat from 1958 to 1976. Both men testified that the decedent worked on submarine overhauls, removing old piping and replacing it with new piping. The asbestos insulation around the piping had to be replaced as well, causing significant amounts of asbestos dust to be released into the air.

       The decedent worked for the Bethlehem Steel Company from 1940 to 1952.

       Shortly after the decedent was diagnosed with asbestosis, he did file a claim for benefits under the Longshore Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. The plaintiff is currently receiving benefits under the jurisdiction of that act at a rate of $206 per week.

       The filing of a timely notice of claim is a condition precedent to liability and a jurisdictional requirement that cannot be waived. Walsh v. A. Waldron & Sons, 112 Conn. 579, 584, 153 A. 298(1931); Cuccuro v. West Haven, 6 Conn. App. 265, 268, 505 A.2d 1, cert. denied, 199 Conn. 805, 508 A.2d 31 (1986).

       Prior workers’ compensation cases have treated asbestosis and lung cancer as separate and distinct occupational diseases. In Cortes v. Allegheny Ludlum Steel Corp., 1 Conn. Workers’ Comp. Rev. Op. 173 (1982), the claimant developed both asbestosis and lung cancer. The respondent argued that the notice of claim for the lung cancer was untimely because it was filed more than one year after the diagnosis of asbestosis. The review board affirmed the commissioner’s conclusion that the disabling disease was lung cancer, “a separate disease from the pleural asbestosis albeit caused by the same asbestos exposure . . . .” Id., 177.

       Given our conclusion upholding the finding that the decedent’s death was caused by lung cancer that was first manifested in the spring of 1983, we need not address the defendants’ argument that a surviving dependent’s claim derives from and depends on the underlying claim for benefits brought by the injured employee during his iife. Also, in light of the conclusion that the plaintiffs 1983 claim was timely filed, we need not address the plaintiffs alternative argument that the decedent’s 1980 claim under the Long-shore Harbor Workers’ Compensation Act satisfied the notice requirements of § 31-294.

       As stated in Brown v. Blauvelt, supra, 152 Conn. 274, the treating physician exception to the hearsay rule is ‘ ‘the exception which allows a physician to testify to his opinion even though it is based ... on statements made to him by a patient for the purpose of obtaining from him professional medical treatment or advice incidental thereto.”

       Under this exception, “[t]he words and acts of a party-opponent are generally admissible against him under the admission exception. See O’Brien v. John Hancock Mutual Life Insurance Co., 143 Conn. 25, 29-30, 119 A.2d 329 (1955) . . . .” (Citations omitted.) C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 11.5.1.

       In its opinion, the board made reference to Ballots v. Terry Steam, Turbine Co., 167 Conn. 170, 355 A.2d 227 (1974). In that case, our Supreme Court noted that the principles of judicial review in workers’ compensation cases, while not governed by the Uniform Administrative Procedures Act (UAPA), are consistent with the principles in General Statutes (Rev. to 1972) § 4-183 (g) of the UAPA. Id., 173 n.3. Section 4-183 (g) provided that “[t]he court may reverse or modify the [agency] decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are ... (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record . . . .” The court explained that substantial evidence is “ ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ . . . ‘Mere uncorroborated hearsay . . . does not constitute substantial evidence.’” (Citations omitted.) Balkus v. Terry Steam, Turbine Co., supra, 178 n.6.

       In view of our decision, we need not address the plaintiff’s argument that the Workers’ Compensation Act does not permit a reduction of benefits where the last asbestos exposure occurred in Connecticut with a Connecticut employer and where the liability of the defendants is joint and several.


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    State of Connecticut v. Marc Youdin
    (13262)
    O’Connell, Heiman and Schaller, Js.
    Argued February 7
    decision released May 30, 1995

      Jon L. Schoenhorn, for the appellant (defendant).

      John A. East III, deputy assistant state’s attorney, with whom, on the brief, were Eugene J. Callahan,
      state’s attorney, and Richard Colangelo, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, after a jury trial, of possession of narcotics in violation of General Statutes § 2la-279 (a) and reckless driving in violation of General Statutes § 14-222. The defendant claims that the trial court (1) improperly permitted the defendant to cross-examine a state’s witness concerning a separate arrest and improperly prevented rebuttal of this testimony and (2) improperly instructed the jury concerning fingerprint evidence. We affirm the judgment of the trial court.

The jury could reasonably have found that on January 22, 1992, the defendant operated a motor vehicle at ninety miles per hour on 1-95 in Westport and, at that time and place, possessed eight grams of cocaine. The record shows that the defendant was subsequently rearrested and charged with failure to appear in the second degree in violation of General Statutes § 53a-173. Prior to the commencement of jury selection, the trial court granted the defendant’s motion to sever the failure to appear charge.

Trooper Joseph Marchio of the state police, who made the original arrest, was being crossed-examined by defense counsel when the following colloquy took place.

“[Defense Counsel]: That’s an appropriate bond for narcotics, and did he raise the bond?

“[Marchio]: I’d have to look at the paperwork if he made bond or not. I think he did.

“Q. He’s here, so obviously he made the bond?

“A. Yes.

“Q. Did you have any other discussions with him about this case?

“A. About what, sir?

“Q. About this case?

“A. I arrested him after for a charge of failure to appear in court....

“[The Court]: Let’s go on to another area now.

“[Defense Counsel]: You arrested him for a failure to appear in court?

“[Marchio]: Yes, sir.

“Q. Do you know whether or not he appeared in court that day?

“A. No, sir. He had a warrant for his arrest after for not appearing in court.

“Q. Do you know when that was?

“A. Not the exact date and time. No, sir.

“[The Court]: I really want to stop you from getting into that area unless you insist on doing that. I plan to tell the jury to totally disregard that, unless you insist on getting into that area.

“[Defense Counsel]: Frankly—

“[The Court]: I tried to stop it.

“[Defense Counsel]: I know. I appreciate that, but I don’t think I can—

“[The Court]: Do what you have to do.

“[Defense Counsel]: Thank you.

“Q. Officer, I would ask you to look at your file, look at whatever you have to look at just to refresh your recollection when Mr. Youdin allegedly failed to appear in court, okay?

“A. I don’t have anything in front of me, sir, that would indicate when he failed to appear.

“Q. I’ll show you something. Showing you this document, and you may not be familiar with this because it is a court document, but does this refresh your recollection perhaps if you know when he was alleged to have not appeared in court, what date?

“A. Let me see that, sir?

“[The Court]: If you can’t interpret that document, don’t guess at it, okay?

“A. Yes, sir. I’m not going to guess at it then, sir. I’m not going to guess at it.

“Q. In September of last year who was the commissioner of the state police?

“A. Commissioner Cioffi.

“Q. Who was the commissioner of state police before Commissioner Cioffi?

“[The State]: Objection, Your Honor, relevance.

“[Defense Counsel]: I’m claiming, Your Honor, subject to—

“[The Court]: If you can tie it in, I’ll let you do it.

“Q. This is not going much further; who is the commissioner of the state police?

“A. Sullivan.

“Q. And who is the chief state’s attorney?

“A. I’m not sure.

“Q: Do you know the disposition of the offense that Mr. Youdin [was] subsequently arrested for, a failure to appear in courtl

“A. No, sir. In terms of — I arrested him on a warrant. Fairfield had stopped him. We had a warrant for his arrest for a failure to appear.

“Q. You arrested him on the charge of failure to appear in court in this case, did you not?

“A. Yes, sir.

“Q. Okay, and you told us in answer to my questions as to whether or not you had any further discussion with him about this case, isn’t that the question that I asked that prompted you to tell us that you arrested him for failure to appear in court?

“A. Yes, sir.

“Q. Do you think that your answer to me was responsive?

“A. Responsive, sir?

“Q. Yes, is that what you were trying to tell us as to whether or not you had any further discussion about this case?

“A. You asked me. You said, after that date did you have any—

“Q. No. I said did you have any further discussions about this case?

“A. I thought you took it after that date.

“Q. You don’t think it’s important that the jury should know that you arrested him for failing to appear in court?

“A. No, Sir. You asked me a question and I answered.

“Q. Are you aware that he has appeared in this court forty-two different times?

“A. No, I am not, sir.

“Q. Would it surprise you?

“A. No, sir.

“Q. Are you aware that he has in fact written to the chief state’s attorney to have his case heard as soon as possible?

“[The State]: Objection, Your Honor.

“[The Court]: Sustained, I’m not going to allow it.

“[The State]: I don’t believe the defense attorney has tied this together, so anything that you find that isn’t relevant I ask that that be stricken.

“[Defense Counsel]: The only question, Your Honor, that I am asking the jury to take note of is who was the chief state’s attorney at the time.

“[The Court]: How are you going to tie it in about the failure to appear in this instance?

“[Defense Counsel]: Well, I’ll have to address that when Mr. Youdin takes the stand, Your Honor.

“[The Court]: I’ll instruct the jury to disregard that testimony.” (Emphasis added.)

The defendant testified on his own behalf during which the following colloquy took place.

“[Defense Counsel]: You heard Trooper Marchio tell us that you had been arrested for failure to appear in this case. Were you arrested for failure to appear in this case?

“[The Defendant]: Yes sir, I was.

“Q. And when were you arrested for failing to appear in this case? And if you want to use notes, be my guest.

“A. Well, uh-

“[The State]: Your Honor, I’d object. I don’t know how this is relevant to anything that’s before the court in this instance.

“[The Court]: Mr. Sherman?

“[Defense Counsel]: Well, I unfortunately have to claim it, Your Honor. Trooper Marchio’s the one who picked up a big glob of mud and threw it on the wall. And now it’s incumbent on me to obliterate it as best I can. I never brought it out.

“[The Court]: You brought it out, though.

“[Defense Counsel]: Excuse me, Your Honor?

“[The Court]: You forced it out.

“[Defense Counsel]: Oh, I don’t think so.

“[The Court]: I don’t mean that you did so intentionally, but it seems to me that you put some water on the dirt, and made it mud.

“[Defense Counsel]: No, and I — I strongly, respectfully disagree with the court. When I asked Trooper Marchio a question having nothing to do with anything, he is the one who said, ‘Yes, that’s when I arrested him for failure to appear in court.’

“[The Court]: What’s that have to do with this case then, at any rate?

“[Defense Counsel]: Well, the jury has now been made aware that he’s been arrested for failure to appear in court, which would seem to be some type of contempt—

“[The State]: Your Honor?

“[Defense Counsel]: —Marchio—and I think I’m entitled at this point to clear up [the] matter for the jury and explain why he was a failure to appear.

“[The Court]: Okay. What do you want to say?

“[The State]: Can we excuse the jury so we can talk?

“[The Court]: Excuse the jury, please.” (Emphasis added.)

The state argued to the trial court that defense counsel was opening the door to the failure to appear charge, which had been severed at his request, and that, if he continued to do so, the state should be allowed to reinstate the failure to appear charge. No formal motion to reinstate the charge was made and that charge was never brought back into the case.

The defendant made an offer of proof, out of the presence of the jury, that pertained solely to the severed failure to appear charge. The state objected on relevancy grounds. Defense counsel argued that the evidence was necessary to rebut the prejudicial effect of Marchio’s testimony.

The trial court ruled that the subject of the offer of proof was not relevant to either of the charges for which the defendant was on trial. When the jury-returned, the court instructed it to disregard all reference to the failure to appear charge and reemphasized this point as part of its final jury instruction.

Facts relating to the fingerprint claim will be discussed with the analysis of that issue.

I

The defendant first claims that the trial court improperly interfered with his right to present a defense and also interfered with his decision to testify in his own behalf (1) by permitting him to explore evidence of the severed failure to appear charge on cross-examination of a state’s witness and (2) by not permitting him to introduce evidence pertaining to that crime as part of his own case.

The genesis of this problem was the cross-examination of Marchio when he was asked: “Did you have any other discussions with [the defendant] about this case?” Apparently, defense counsel was referring to other discussions that may have taken place at the time the defendant was being processed on the original arrest. Marchio, however, misinterpreted the question and started to reply, “I arrested him after for a charge of failure to appear in court. . . .” The trial court immediately interrupted Marchio, ordering, “Let’s go on to another area now.”

The defendant persisted, however, in going into the failure to appear charge despite continued efforts by the trial court to deter him. On appeal, the defendant relied on the timeworn cliche, “You can’t unring the bell.” This truism is well taken when extensive and critical prejudicial testimony is unexpectedly exposed to the jury. Not every inadvertent word or expression, however, comes within the ambit of the saying. In the present case, Marchio’s inadvertent remark barely tinkled the proverbial bell. It was the defendant who grabbed the bell rope and swung on it, causing the bell to peal over and over again. Any prejudice resulting from the repeated reference to the failure to appear charge was self-induced and, if not the result of the defendant’s opening the door, was the consequence of the defendant’s taking a door that was barely ajar and forcing it wide open. State v. Hernandez, 224 Conn. 196, 206, 618 A.2d 494 (1992). “ ‘Action induced by an appellant cannot ordinarily be ground of error.’ . . .” (Citations omitted.) State v. Harrison, 34 Conn. App. 473, 488, 642 A.2d 36, cert. denied, 231 Conn. 907, 648 A.2d 157 (1994).

Furthermore, any possible prejudice that might be claimed was eliminated by the trial court’s limiting instruction, repeated in its final jury charge. Absent evidence to the contrary, the jury is presumed to have followed the court’s instruction to disregard all references to the failure to appear charge. State v. Negron, 221 Conn. 315, 331, 603 A.2d 1138 (1992). “Such curative instructions are entitled to great weight and ordinarily prevent an appellate court from finding that the trial court committed reversible error. ...” (Citation omitted; internal quotation marks omitted.) State v. Harris, 28 Conn. App. 474, 481, 612 A.2d 123, cert. denied, 223 Conn. 926, 614 A.2d 828 (1992). A limiting instruction was an adequate remedy in this case. The defendant’s attempt to undo the benefit of the limiting instruction cannot be laid at the door of the trial court.

Because the defendant’s offer of proof contained no evidence relevant to the charges for which the defendant was on trial, the trial court properly refused to allow it to be presented to the jury.

In the final aspect of this claim, the defendant contends that the trial court’s “invitation” to defense counsel to “[d]o what you have to do” interfered with his decision on whether to take the stand and testify or to exercise his constitutional right not to testify. The record is devoid of testimony or trial court findings showing that the defendant’s decision resulted from Marchio’s partial answer or the court’s subsequent action. This claim is supported only by representations of appellate counsel. Representations and arguments of counsel are not evidence. State v. O’Brien, 29 Conn. App. 724, 732, 618 A.2d 50, cert. denied, 225 Conn. 902, 621 A.2d 285 (1993).

It is the appellant’s burden to furnish an adequate record. Practice Book § 4061; deFur v. deFur, 37 Conn. App. 450, 451-52, 656 A.2d 703 (1995); Gallant v. Esposito, 36 Conn. App. 794, 797, 654 A.2d 380 (1995). “ ‘If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, [this court] will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant’s claim.’ ” State v. O’Brien, supra, 29 Conn. App. 732, quoting State v. Golding, 213 Conn. 233, 240, 567 A.2d 823 (1989). We decline to review this aspect of the first claim.

II

The defendant also claims that the trial court improperly instructed the jury concerning fingerprint evidence.

On the night of the arrest, Marchio seized a plastic bag that was in plain view on the front seat. The bag’s contents proved to be cocaine. Sergeant Angel Gonzales testified that the police did not fingerprint the package because it was “assumed” to be the defendant’s since he was alone in the car, and, under such circumstances, it was not common practice to fingerprint a package suspected of containing narcotics.

At trial, the defendant denied ownership of the drugs and also denied having handled the package. The car was rented, and he claimed that the package fell from above the sun visor as he tried to find the vehicle registration.

During closing argument, the defendant’s counsel asked, rhetorically, why the state had not fingerprinted the package. “We could have solved this long ago, I suggest to you, by the fingerprints. We can’t do it. They’ve got to do it.” The state did not refute these statements at the time.

During deliberations, the jury asked the question: “Does the accused have the right, or did he have the right to get the cocaine bag fingerprinted and introduced into evidence?” The court answered, “No.” The state excepted to this answer, pointing out that pursuant to Practice Book § 741, the defendant had the right to make reasonable tests on the package, so the answer to the jury’s question should have been yes.

The defendant objected to a simple affirmative answer because he argued that so many people had handled the package during its processing that it effectively denied him his right to have it fingerprinted. As an alternative, he sought to have the court supplement its affirmative answer with an instruction that the package had been contaminated by having been handled by a number of people. There was no evidence, however, that the bag had become so contaminated that it could not be effectively fingerprinted.

The court refused to go into the testimony and rein-structed the jury that the defendant had a right to test the package and that “the value of [making the tests] is based upon the testimony that you’ll have to recall regarding those circumstances of fingerprinting.”

The jury then requested: “Please clarify your statement regarding fingerprint[s], particularly the part about prior testimony.” The state asserted that the court was limited to telling the jury that it must rely on its recollection of the evidence. The defendant again argued that the court should remind the jury that there had been testimony that many people had touched the package and explain that this meant that any fingerprint testing would have been useless.

The court again refused this request, instead telling the jury, “Ladies and gentlemen, it’s your obligation to try to recall the testimony in this case to the best of your ability. Your collective memory is what you should use. If there was testimony about fingerprinting that was introduced into evidence, think about that testimony. Try to recall what the testimony was. And that way, you can come to your answer to your own question. If there was testimony regarding fingerprinting, and again, in the context of your question that you asked me, about whether or not he had the right to have the bag fingerprinted, that’s for you to decide.”

The defendant introduced this issue when he incorrectly argued that the defendant could not fingerprint the package. He cannot now complain about the result of what he brought into the case. Action induced by a party cannot, ordinarily, be ground for error. State v. Walton, 227 Conn. 32, 67, 630 A.2d 990 (1993); State v. Ross, 189 Conn. 42, 47, 454 A.2d 266 (1983); State v. Boyd, 36 Conn. App. 516, 520, 651 A.2d 1313, cert. denied, 232 Conn. 912, 654 A.2d 356 (1995). “The defendant can claim relief from an induced error only upon a showing that the error violated his constitutional rights.” State v. Harrison, supra, 34 Conn. App. 488.

The defendant argues on appeal that the court’s instruction shifted the burden to him to prove his innocence and allowed the jury to draw an adverse inference that the defendant’s failure to have the package fingerprinted was evidence of guilt. Even if this were true, it would not constitute grounds for overturning the verdict. The trial court repeatedly instructed the jury that the defendant was presumed to be innocent and that the state had the burden of proving each element of the crime beyond a reasonable doubt. We do not consider individual instructions in isolation; rather, we consider the jury charge as a whole. State v. Miller, 36 Conn. App. 506, 511, 651 A.2d 1318, cert. denied, 232 Conn. 912, 654 A.2d 357 (1995). When considered as a whole, the jury instructions did not shift the burden.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-279 (a) provides: “Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than fifty thousand dollars, or be both fined and imprisoned; and for a second offense, may be imprisoned not more than fifteen years or be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for any subsequent offense, may be imprisoned not more than twenty-five years or be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

       General Statutes § 14-222 (a) provides in pertinent part: “The operation of a motor vehicle upon any such highway, road or parking area for ten cars or more at a rate of speed greater than eighty-five miles per hour shall constitute [reckless driving].”

       Appellate counsel was not trial counsel.

       General Statutes § 53a-173 (a) provides: “A person is guilty of failure to appear in the second degree when, while charged with the commission of a misdemeanor or a motor vehicle violation for which a sentence to a term of imprisonment may be imposed and while out on bail or released under other procedure of law, he wilfully fails to appear when legally called according to the terms of his bail bond or promise to appear.”

       The record does not disclose why the defendant was charged with failure to appear in the second degree rather than failure to appear in the first degree, which is appropriate for failure to appear when charged with a felony. Possession of narcotics is a felony. At any rate, the failure to appear charge was later nolled by the state.

       “Thank you. Ladies and gentlemen, there’s been reference to failure to appear in connection with this case. That has absolutely nothing to do with you. You are not to consider any remarks made regarding the failure to appear. That is an issue that is absolutely not before you. Please disregard any and all reference to such a situation because that is not before you at all. Okay.’’ (Emphasis added.)

         “Any testimony which has been ordered to be stricken from the record, which I told you to disregard, is not evidence .... You are to decide the case solely on the evidence which has been received at trial.” (Emphasis added.)

       Practice Book § 4061 provides in relevant part: “It is the responsibility of the appellant to provide an adequate record for review.”

       Practice Book § 741 provides in relevant part: “Upon a written motion made by a defendant within ten days after the entry of a plea, the prosecuting authority, within the time set by the judicial authority, shall disclose in writing the existence of and allow the defendant to inspect, copy, photograph and have reasonable tests made on any of the following relevant materials . . .
      “(2) Books, tangible objects, papers, photographs, or documents obtained from or belonging to the defendant;
      “(3) Adequately identified books, tangible objects, papers, photographs, or documents which are within the possession, custody, or control of any governmental agency, and which are material to the preparation of the defense or are intended for use by the prosecuting authority as evidence in chief at the trial . . . .”

       The concluding words of the instruction are inexplicably inconsistent with the trial court’s other instructions on this subject. The parties do not refer to it, nor shall we. See Lynch v. Granby Holdings, Inc., 230 Conn. 95, 99, 644 A.2d 325 (1995).


author: Per Curiam.

text:
    Michael Walker v. Commissioner of Correction
    (13499)
    Dupont, C. J., and Heiman and Speak, Js.
    Argued March 16
    decision released May 30, 1995

      Paula Mangini Montonye, assistant public defender, for the appellant (petitioner).

      John A. East III, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and JohnDropick, assistant state’s attorney, for the appellee (respondent).
   Per Curiam.

After a review of the record and briefs, and after hearing the parties at oral argument, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 179, 640 A.2d 601 (1994); Bush v. Commissioner of Correction, 37 Conn. App. 930, 931, 657 A.2d 724 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

The habeas court’s dismissal of the petitioner’s writ was predicated on a factual review of the petitioner’s claims and a determination that the petitioner had failed to satisfy the prejudice requirement of Stricklands. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to establish a reasonable probability that, absent counsel’s professional errors, the outcome of his criminal trial would have been different. See Commissioner of Correction s. Rodriquez, 222 Conn. 469, 477, 610 A.2d 631 (1992); Bunkley s. Commissioner of Correction, 222 Conn. 444, 454-55, 610 A.2d 598 (1992). Thus, the habeas court found that there did not exist sufficient evidence to undermine confidence in the verdict of the jury. Commissioner of Correction v. Rodriquez, supra, 477.

We conclude that the habeas court had before it sufficient evidence to find as it did and that it did not abuse its discretion in denying the petitioner’s petition for certification to appeal.

The appeal is dismissed.


author: Schaller, J. O’Connell, J.,

text:
    State of Connecticut v. Rick Manini
    (12171)
    O’Connell, Schaller and Freedman, Js.

      Argued September 19, 1994
    decision released June 6, 1995

      Sheila Huddleston, special public defender, for the appellant (defendant).

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, and David Gold, assistant state’s attorney, for the appellee (state).
   Schaller, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1) and two counts of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1). The dispositive issue on appeal is whether the trial court improperly excluded evidence of the victim’s prior claims of sexual assault pursuant to Connecticut’s rape shield statute, General Statutes § 54-86f. The defendant also claims that the trial court improperly denied his request to order the victim to undergo an independent psychiatric examination, and permitted the prosecution to make a, Secon-dino argument; see Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960); without a proper foundation or advance permission from the court. We reverse the judgment of the trial court.

The jury reasonably could have found the following facts. The victim, L, suffered from schizophrenia since at least 1978, and had been hospitalized for acute psychotic episodes in 1979, 1983, and 1984. She had not been hospitalized since 1984, but had been taking a high dosage of an antipsychotic medication, prolixin. She married in September, 1983, and had a daughter in September, 1984.

In 1989, L took a part-time job at an Ames department store at Centennial Plaza in Meriden. L met the defendant at Ames, where he did plainclothes security work. L’s first physical contact with the defendant occurred in May, 1990. In a conversation with the defendant in the employee’s lounge, she agreed to go out for coffee with him. At the end of their conversation, the defendant grabbed and kissed her. She stepped back and told him that she “could not do this,” and that she was interested only in having coffee with him. She subsequently canceled the plans to have coffee with the defendant.

Later that month, on May 13, 1990, the defendant told L to go up to the security office to pick up some shoes that needed to be reshelved. While she was alone in the office with the defendant, he began rubbing against her. His hands rubbed her buttocks and shoulders. He pulled down his elastic waistband pants and exposed his penis. L told him to “put that away.” He laughed at her and said, “You’re going to eat me.” The defendant moved toward L and, as she tried to evade him, he put his hand on the back of her head, pulled her toward him and pushed his penis into her mouth. Ultimately, he ejaculated onto her smock. L left the room and did not tell anyone about the incident because she was afraid no one would believe her.

L lost her job when the store closed in the summer of 1990. In September, 1990, she applied for a job at an Ames store in Meriden, and was hired as a “trial manager” in the jewelry department. The defendant was also working at that store. On September 11,1990, the defendant told L that he needed to talk with her during her break about management issues. At her break, L went into the security office. The defendant told L that there had been complaints that she had left her department unattended. He told her she had to listen to her managers. The defendant then locked the door and pulled his pants down. She saw that he was wearing white underwear with red lettering. The defendant said, “Kiss me, baby,” and began to kiss her. He put his hands all over her, touching her private parts. L went to the door and tried to unlock it; the defendant said, “I’ll get the door, sweetie.” He opened the door and said, “Maybe next time I’ll get you.” She said she was going to report him for “job abuse” and left the office.

Immediately after L had left his office, the defendant spoke with Patricia Barnis, an Ames assistant manager. He told her that L was “crazy” and that she was “making up a lot of stories.” Barnis said that the defendant asked her later that day “how much would it cost him” for her to keep quiet about having seen L leave his office.

The defendant followed L to the office of John Carlson, the store manager. L told Carlson about the alleged assault. She also told him that the defendant had previously assaulted her in the Centennial Plaza store, where he had forced her to have oral sex with him. The defendant denied the allegations to Carlson. Carlson called Jeff Hanlon, the district security manager, to come to the store to investigate L’s allegations. L and the defendant each wrote a statement and spoke with Hanlon.

L told her husband about these events, including those occurring at the Centennial Plaza store. Her husband called the police. A statement was taken, and the next day Detective Ted Standish of the Meriden police department took an additional statement from L in her husband’s presence. Standish secured a warrant for the defendant’s arrest on September 14.

The defendant voluntarily went to the police station that same day. Standish informed the defendant of his Miranda rights and secured his waiver. He suggested that the defendant might want to give a statement because L had provided a substantial amount of detail, including the color of the defendant’s underwear. The defendant asked what she had said, and Standish, using an interviewing technique, answered that she had said his underwear was bright yellow. The defendant said that he had been wearing underwear that was “white with red lines.”

The defendant’s testimony concerning the events of September 11, 1990, differed substantially from that of L. He said that after he mentioned the complaints about L’s work, she had “changed facial expressions” and said that her husband often asked her to perform fellatio. The defendant testified that he ended the conversation at that point and went to the employee lounge to get a cup of coffee. He saw L outside the lounge, holding her hand to her hair. She said, “Rick, this fucking job is getting to my head and I want to quit and you’re going to be fired.” He followed her upstairs as she went to talk to Carlson.

The defendant denied that he had ever had sex or sexual contact with L at the Centennial Plaza store. He said that he had spoken with Carlson earlier in the day because the service desk personnel had complained that L was leaving the jewelry department unattended. Carlson, who was extremely busy that day, did not recall the conversation, but L had seen the defendant talking with Carlson before he spoke to her.

The defendant agreed that he had told Barnis that L had accused him of forcing her to have sex, but recalled that the conversation had taken place after L had spoken to Carlson, not before. He denied that he offered Barnis money to keep quiet.

I

The defendant claims that the trial court improperly denied his motion to introduce evidence of L’s prior claims of rape pursuant to Connecticut’s rape shield statute, General Statutes § 54-86f, thereby denying the defendant his right of confrontation as protected by the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. We agree.

For a defendant to introduce evidence of a victim’s prior sexual conduct, the proffered evidence must fall into one of the four delineated exceptions provided by the rape shield statute. The evidence is admissible only after a hearing on a motion to offer such evidence containing an offer of proof. See General Statutes § 54-86f. We note that, in this case, the defendant did not frame his request in language employing the words “move” or “motion.” The record is clear, however, that he was seeking permission to offer the type of evidence covered by § 54-86f. The remarks of both the state and the trial court indicated their understanding that the defendant’s request was a motion under that section. We have often stated that “we will not exalt form over substance”; State v. Rosedom, 34 Conn. App. 141, 143, 640 A.2d 634 (1994); Wilton v. McGovern, 33 Conn. App. 517, 521, 636 A.2d 870, cert. denied, 228 Conn. 928, 640 A.2d 116 (1994); Connecticut National Bank v. Browder, 30 Conn. App. 776, 779, 622 A.2d 588 (1993); Tolland Bank v. Larson, 28 Conn. App. 332, 337, 610 A.2d 720 (1992); and we will not do so where it was clear to all parties involved that a motion was being made. Because the record reveals that both parties and the trial court unmistakably understood the request at issue to be a motion under § 54-86f, we will proceed on that basis.

The defendant claimed that the proffered evidence came within either the second or fourth exception, that it was “offered by the defendant on the issue of credibility of the victim,” or “otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights.” General Statutes § 54-86f (2) and (4). The issue arose at trial while the defendant was in the process of attempting to impeach L’s credibility, attacking her ability to perceive, recollect and report reality accurately. The defendant was questioning L about her 1991 medical records, including inquiries into delusions and hallucinations of a highly sexualized nature that the records indicated the victim had experienced. The jury was excused and the defendant told the trial court that he wanted to cross-examine L about the prior claims of rape contained in the medical records. The defendant presented a compelling argument based on the 1991 medical records, which indicated that she had made two prior claims of rape and had experienced delusions and hallucinations of a highly sexualized nature, for cross-examination pertaining to prior claims of rape. In particular, the defendant sought the opportunity to question the victim in the course of an eviden-tiary hearing on the § 54-86f motion. The defendant’s attorney stated: “I’m trying to make a stronger case. If I’m able to question this witness outside the presence of the jury as to whether these rapes actually took place, then if I was able to do that and it was clear or obvious or strong probability these rapes never took place, I would be introducing — I would want to introduce the reports about them and the oral testimony.” The trial court noted that the state objected: “There is objection based on the rape shield law.” The trial court then inquired of counsel for the defendant whether he had “some basis in fact as a result of your investigation of this case to conclude that the rapes that she — that there’s an indication in the records she [said] had occurred to her back in 1970 or ’80, that those did not in fact occur?” When counsel responded, “No, I have none.” The trial court sustained the objection, concluding that “[t]he rape shield law does not just protect the victim from having questions asked about the subject in the presence of the jury, it protects the person from having questions asked about that subject.” The effect of the ruling was to preclude the defendant from producing the victim’s testimony in the course of the hearing on the § 54-86f motion. We conclude that the trial court exceeded its discretion as it applied the statute in this case.

In State v. Cassidy, 3 Conn. App. 374, 379, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985), the first case to interpret § 54-86f, we held that the rape shield statute was “ ‘enacted specifically to bar or limit the use of . . . sexual conduct of an alleged victim of a sexual assault because it is such highly prejudicial material.’ ” The statute “excludes evidence of prior sexual conduct of the victim of a sexual assault, unless one of the statutory exceptions is satisfied.” State v. Christiano, 228 Conn. 456, 469, 637 A.2d 382, cert. denied, U.S. , 115 S. Ct. 83, 130 L. Ed. 2d 36 (1994). “Our legislature has determined that, except in specific instances, and taking the defendant’s constitutional rights into account, evidence of prior sexual conduct is to be excluded for policy purposes. Some of these policies include protecting the victim’s sexual privacy and shielding her from undue harassment, encouraging reports of sexual assault, and enabling the victim to testify in court with less fear of embarrassment. . . . Other policies promoted by the law include avoiding prejudice to the victim, jury confusion and waste of time on collateral matters. . . . State v. Cassidy, [supra, 379].” (Citations omitted; internal quotation marks omitted.) State v. Christiano, supra, 469-70.

Since State v. Cassidy, supra, 3 Conn. App. 374, the rape shield statute has come under judicial scrutiny many times. Neither this court nor the Supreme Court, however, has had occasion to determine the circumstances under which the trial court may exercise its discretion to refuse to permit the defendant to offer the victim’s testimony in the course of the hearing under § 54-86f. In all the cases previously decided, where a defendant moved to introduce evidence of the victim’s prior sexual conduct, the trial court allowed an evidentiary hearing to determine the admissibility of the evidence. State v. Christiano, supra, 228 Conn. 456; State v. Rinaldi, 220 Conn. 345, 599 A.2d 1 (1991); State v. Kelly, 208 Conn. 365, 545 A.2d 1048 (1988); State v. Siering, 35 Conn. App. 173, 644 A.2d 958, cert. denied, 231 Conn. 914, 648 A.2d 158 (1994); State v. Kindrick, 30 Conn. App. 56, 619 A.2d 1 (1993); State v. Williams, 20 Conn. App. 263, 565 A.2d 1365 (1989); State v. Butler, 11 Conn. App. 673, 529 A.2d 219, cert. denied, 205 Conn. 806, 531 A.2d 938 (1987); State v. Daniels, 8 Conn. App. 190, 512 A.2d 936 (1986); State v. Jones, 8 Conn. App. 44, 510 A.2d 467 (1986). Those decisions did not indicate, however, that the right to offer the victim’s testimony as to sexual conduct in the course of an evidentiary hearing is automatic once a motion is filed. We conclude, in fact, that a determination that a defendant is entitled to an evidentiary hearing involving the victim’s testimony is not automatic but, instead, is subject to the discretion of the trial court.

“Restrictions on the scope of cross-examination are within the sound discretion of the trial court. State v. Castro, 196 Conn. 421, 425, 493 A.2d 223 (1985). . . . ‘To establish an abuse of discretion, it must be shown that restrictions imposed on cross-examination were clearly prejudicial.’ [State v. Johnson, 21 Conn. App. 291, 297, 573 A.2d 1218 (1990)].” State v. Adams, 36 Conn. App. 473, 480, 651 A.2d 747, cert. granted, 232 Conn. 913, 654 A.2d 356 (1994). “In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the trial court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) State v. Coleman, 35 Conn. App. 279, 285, 646 A.2d 213, cert. denied, 231 Conn. 928, 648 A.2d 879 (1994).

Because this is an issue of first impression, it is not surprising that few jurisdictions with rape shield statutes similar to Connecticut’s have decided the issue. We note, however, that the Court of Appeals of Idaho, which has a rape shield statute similar to § 54-86Í, has addressed the issue in a decision that we find persuasive. Neither the Idaho statute nor our own specifies that if the defendant must make a preliminary showing of cause in order for the trial court to order an evidentiary hearing on the issue. The Idaho statute, in fact, does not even require an offer of proof, as our statute does. In State v. Gabrielson, 109 Idaho 507, 708 P.2d 912 (App. 1985), the Idaho Court of Appeals concluded that under its rape shield statute a preliminary showing was required before a defendant was entitled to an evidentiary hearing on the issue. The court stated that “[c]learly [the rape shield statute] was not intended to allow defense counsel to conduct a ‘fishing expedition’ into the prior sexual conduct of the victim, even outside the presence of a jury.” Id., 510. The Gabrielson court relied on State v. Palin, 106 Idaho 70, 675 P.2d 49 (App. 1983). In Palin, the court, upholding the trial court’s denial of a hearing, stated: “A party seeking to present evidence must identify that evidence sufficiently to enable the trial court to make an informed ruling. E.g., Jones v. State, 576 P.2d 997 (Alaska 1978). If a defendant charged with a crime to which consent is a defense wishes to show that prior sexual conduct is relevant, he must make a preliminary showing which indicates the relevancy. State v. Herrera, 92 N.M. 7, 582 P.2d 384 (1978). . . . Upon the present record we are unable to determine the nature of the evidence sought to be admitted, other than defense counsel’s suggestion that the rape victim may have been unchaste.” (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Palin, supra, 73.

In State v. Herrera, supra, 92 N.M. 16, the New Mexico Court of Appeals stated: “The question of relevancy is not raised by asserting that it exists, there must be a showing of a reasonable basis for believing that past sexual conduct is pertinent to the consent issue.”

On the basis of the language of § 54-86f and on the reasoning of the sibling state decisions, we conclude that § 54-86f requires a defendant to make a preliminary showing that the evidence sought to be explored in the evidentiary hearing is relevant. The showing must be sufficient to enable the trial court to make an informed ruling in connection with the exercise of its discretion on the issue. That showing must be made as part of the offer of proof as a prerequisite to obtaining an evidentiary hearing to determine the admissibility of evidence of the victim’s prior sexual conduct. This interpretation of our rape shield statute is consistent with its plain language, as well as with the intent of the legislature to protect the victim’s sexual privacy in order to shield the victim from undue harassment and embarrassment, without infringing on the constitutional rights of the defendant.

In the present case, we conclude that the defendant’s offer of proof satisfied the requirement of demonstrating a sufficient basis for the court to exercise its discretion to allow the defendant to present the victim’s testimony in an evidentiary hearing under § 54-86f. In so concluding, we apply the appropriate standard of review for the trial court’s evidentiary ruling. “ ‘The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done.’ State v. Boles, 223 Conn. 535, 549, 613 A.2d 770 (1992).” State v. Robinson, 227 Conn. 711, 732, 631 A.2d 288 (1993). In this case, the trial court abused its discretion when it concluded that the defendant was not entitled to an evidentiary hearing to determine the admissibility of evidence of the victim’s prior sexual conduct. The defendant sought to introduce evidence of the victim’s prior claims of rape. The prior claims of rape, if false, would be relevant. In State v. Cassidy, supra, 3 Conn. App. 382, where the defendant wanted to admit evidence of prior claims of sexual assault, we determined that, if a victim had raised a false claim before, it was admissible as to the credibility of her testimony in this case. See also State v. Kelly, supra, 208 Conn. 377. Although the defendant stated that he had no basis for stating that the prior rapes did not occur, the medical records indicating sexual delusions and hallucinations may have supported such an inference.

Unlike the situation m State v. Gabrielson, supra, 109 Idaho 510, where “counsel for the defendant admitted that at the time of the request for an evidentiary hearing was made no evidence of previous sexual conduct existed and the hearing would in fact be a ‘fishing expedition’ to make such a determination,” the defendant in this case presented evidence that supported an order for a hearing on the matter. The defendant’s motion was bolstered by the victim’s medical records, which indicated she had made two prior claims of rape and had expérienced delusions and hallucinations of a highly sexualized nature. We conclude that the defendant’s offer of proof was sufficient to require the court to conduct an evidentiary hearing on the admissibility issue. Because the defendant was denied this opportunity by the trial court, a new trial is required.

II

Although a new trial is necessary, we must address the defendant’s remaining claim because it will likely recur on retrial. The defendant claims that the trial court improperly denied the defendant’s request to order the victim to undergo an independent psychiatric examination in violation of his right to confrontation as protected by the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. We do not agree.

The defendant has a right to put before the jury those facts that will assist it in assessing the credibility of the state’s witnesses. Evidence of the mental condition of a witness both at the time of trial and at the time of the incident about which the witness is testifying is admissible to impeach his or her credibility. State v. Pierson, 201 Conn. 211, 225, 514 A.2d 724 (1986); Taborsky v. State, 142 Conn. 619, 629, 116 A.2d 433 (1955).

The right to confrontation is fundamental to a fair trial under both the federal and state constitutions. Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965); State v. Jarzbek, 204 Conn. 683, 707, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988); State v. Reardon, 172 Conn. 593, 599-600, 376 A.2d 65 (1977). It is expressly protected by the sixth and fourteenth amendments to the United States constitution; Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); Pointer v. Texas, supra, 400; and by article first, § 8, of the Connecticut constitution. State v. Torello, 103 Conn. 511, 513, 131 A. 429 (1925). The defendant is guaranteed more than an opportunity to confront witnesses physically. Davis v. Alaska, supra, 315. The right to confrontation secures to the defendant the opportunity to cross-examine witnesses against him; id., 315-16; and “ ‘to expose to the jury the facts from which the jurors . . . could appropriately draw inferences relating to the reliability of the witness.' ” State v. Gaynor, 182 Conn. 501, 509, 438 A.2d 749 (1980). The right of cross-examination is not absolute, however, and the trial court may, in its discretion, limit the testimony; id., 508; although the court may not so restrict cross-examination as to impair the defendant’s right to confrontation and deny him a fair trial. State v. Asher man, 193 Conn. 695, 718, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). We must determine whether, in denying the defendant’s request for a psychiatric examination of the complainant, the trial court prevented the defendant from pursuing a relevant line of inquiry, reasonably calculated to elicit facts on which the jury might logically have decided either to disbelieve the victim or to discount or discredit her testimony. Davis v. Alaska, supra, 315. We conclude that the defendant’s right to confrontation was not impaired. We rest this holding not only on the requirements of the federal constitution, but also on state constitutional grounds. U.S. Const., amends. VI, XIV; Conn. Const., art. I, § 8; see Michigan v. Long, 463 U.S. 1032, 1041, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983); State v. Jarzbek, supra, 707-708.

It is within the discretion of the trial court to decide whether to order a psychiatric examination of a witness for the purposes of presenting psychiatric testimony to impeach her credibility. United States v. Pacelli, 521 F.2d 135, 140 n.4 (2d Cir. 1975), cert. denied, 424 U.S. 911, 96 S. Ct. 1106, 47 L. Ed. 2d 314 (1976); State v. Piskorski, 177 Conn. 677, 716, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979); State v. Taborsky, 139 Conn. 475, 487, 95 A.2d 59 (1953). In State v. Dab-kowski, 199 Conn. 193, 506 A.2d 118 (1986), our Supreme Court, in dictum, surveyed the law of other states concerning psychiatric examinations of victims in sex offenses. The Supreme Court concluded that the overwhelming majority of states has concluded “that the trial court has discretion to order a psychiatric examination of a complaining witness where compelling reasons are shown on the record.” Id., 197-98 n.5. The court, therefore, rejected the “Wigmore rule,” which suggests that a “complaining witness, in a case relating to a sex offense, should always be compelled to submit to a psychiatric examination.” See 3A J. Wigmore, Evidence (Chadbourn Rev. 1970) § 924a.

Here, the defendant’s request for a psychiatric examination of L was prompted, not only by the fact that L was schizophrenic at the time of the incident and trial, but also because the defendant claimed that the records kept by L’s psychiatrist prior to and during the time of the incident were wholly unsatisfactory in detailing her condition.

The trial court did not abuse its discretion when it denied the defendant’s motion for a compelled psychiatric examination of L. The trial court properly determined that allowing access to the psychiatric records sufficiently protected the defendant’s right of confrontation. In addition, the trial court admitted portions of the records into evidence and permitted the defendant wide latitude in cross-examining the witness. The trial court in this instance adequately protected the defendant’s right to confrontation. Pennsylvania v. Ritchie, 480 U.S. 39, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987); Davis v. Alaska, supra, 415 U.S. 308.

The judgment is reversed and the case is remanded for a new trial.

In this opinion FREEDMAN, J., concurred.

O’Connell, J.,

dissenting. I do not agree with the majority’s opinion as it relates to the rape shield statute.

I

The trial court record does not raise a rape shield question and, therefore, this appeal is not a proper vehicle for construing that statute.

The procedure for raising a rape shield question is clearly set forth in the statute. When a defendant seeks the benefit of one of the statutory exceptions, he must make a motion containing an offer of proof. Lacking the requisite motion, the statutory prohibition against admission of evidence of sexual conduct remains in effect and bars admission of such evidence. Examination of the trial court file discloses that the defendant never made the mandated motion, either in writing or orally.

The defendant was attempting to impeach the victim’s credibility by cross-examining her concerning psychiatric records pertaining to prior rape claims. The state objected. Following argument in the jury’s absence, the trial court sustained the objection, ruling that, because of the rape shield statute, the defendant could not question the complainant about “the subject.”

Whatever the ruling of the trial court, it was not the result of an exercise of its discretion after a rape shield hearing held pursuant to a motion. This is an attempt to bring the rape shield statute in through the side door and should not be allowed.

II

Even if the defendant had properly raised the rape shield issue at trial, I would still dissent because of the majority’s creation of the requirement of a preliminary showing of relevancy before a trial court may order an evidentiary hearing.

First, the issue of a preliminary showing of relevancy as a prerequisite to a hearing under General Statutes § 54-86f was not raised in the trial court, nor was it argued or briefed by the parties on appeal. It is axiomatic, with exceptions not relevant here, that we will not determine issues not distinctly raised in the trial court and preserved for review. Madison Hills Ltd. Partnership II v. Madison Hills, 35 Conn. App. 81, 83, 644 A.2d 363, cert. denied, 231 Conn. 913, 648 A.2d 153 (1994). In Lynch v. Granby Holdings, Inc., 230 Conn. 95, 99, 644 A.2d 325 (1994), the Supreme Court reversed a decision of this court because it addressed an issue sua sponte “rather than at the behest of one of the parties, thereby depriving the parties of an opportunity to brief the issue.” Although Lynch was a civil jury case, we should learn from its strongly worded rebuke. Lynch is an extension of Lo Sacco v. Young, 210 Conn. 503, 509, 555 A.2d 986 (1989), in which we were reversed for considering a procedural issue sua sponte. We should not consider an issue of this magnitude that has not been fully explored, both in the trial court and by the parties on appeal. See Jaser v. Jaser, 37 Conn. App. 194, 196-97 n.2, 655 A.2d 790 (1995).

Second, even if I could be convinced that the matter is properly considered sua sponte by this court, I am not persuaded by the merits of the majority opinion. I commence my analysis with the established common law evidentiary principle that all evidence is admissible unless there is a rule that expressly excludes it. Plumb v. Curtis, 66 Conn. 154, 166, 33 A. 998 (1895); 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 6. Absent a statute, sexual conduct evidence had been admissible in Connecticut. This changed in 1982 when the rape shield statute was enacted. General Statutes § 54-86f makes such evidence “admissible only after a hearing on a motion to offer such evidence containing an offer of proof.” (Emphasis added.) Statutes in derogation of the common law must be strictly construed. Elliot v. Sears, Roebuck & Co., 229 Conn. 500, 513, 642 A.2d 709 (1994).

Because of the enactment of the rape shield law, “evidence of the sexual history of a sexual assault victim is now admissible only in clearly and narrowly defined circumstances established in a separate hearing.” State v. Rothenberg, 195 Conn. 253, 259-60, 487. A.2d 545 (1985). Policies underlying this law include protecting the victim's sexual privacy and shielding the victim from undue harassment, encouraging reports of sexual assault and enabling the victim to testify in court with less fear of embarrassment. State v. Rinaldi, 220 Conn. 345, 346, 599 A.2d 1 (1991); State v. Cassidy, 3 Conn. App. 374, 379, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985).

The statute is clear and unambiguous; a defendant who seeks to qualify evidence under one of the four statutory exceptions must make a motion containing an offer of proof. The trial court is directed to hold a hearing on the motion and “[i]f, after hearing, the court finds that the evidence meets the requirements of [the statute] and that the probative value of the evidence outweighs its prejudicial effect on the victim, the court may grant the motion.” (Emphasis added.) General Statutes § 54-86f. Nowhere in the statute is the trial court given authority to exercise discretion concerning exclusion or admission until after the hearing. Yet, the majority creates a condition precedent to the statutorily mandated hearing on the motion containing an offer of proof.

Denying the defendant a hearing on his offer of proof is contrary to the established law of the state. We determined that a defendant has the right to make an offer of proof in State v. Zoravali, 34 Conn. App. 428, 433, 621 A.2d 796, cert. denied, 230 Conn. 906, 644 A.2d 921 (1994), where we held that “[t]he trial court improperly denied the defendant’s request to make an offer of proof. An offer of proof, properly presented, serves three purposes. First, it should inform the court of the legal theory under which the offered evidence is admissible. Second, it should inform the trial judge of the specific nature of the offered evidence so the court can judge its admissibility. Third, it thereby creates a record adequate for appellate review. . . . State v. Lussier, 7 Conn. App. 528, 531, 509 A.2d 81 (1986). The appellant bears the burden of providing an adequate appellate record through the offer of proof, among other vehicles. State v. Rios, 30 Conn. App. 712, 715, 622 A.2d 618 (1993) (noting rules of practice through which appellant ensures adequate record). A trial court cannot prevent a defendant from doing so. State v. Lussier, supra, 532 (noting that trial court could not have prevented defendant from making offer of proof).” (Internal quotation marks omitted.)

Recognizing the personal and sensitive nature of the evidence that may be involved in the hearing, the statute wisely provides that the hearing may be held in camera. The majority goes beyond the statute and grants additional protection for the victim by providing that even before the hearing takes place, in camera or in open court, the defendant must establish a preliminary showing of the relevancy of the evidence. I find no justification in our statute or case law for what is, in effect, requiring an offer of proof to make an offer of proof.

I appreciate the majority’s sincerity and well-intentioned purpose, but it is not the function of courts to revise statutes. Howard v. Commissioner of Correction, 230 Conn. 17, 22, 644 A.2d 874 (1995). We must interpret them as written. Zachs v. Groppo, 207 Conn. 683, 690, 542 A.2d 1145 (1988). Where the language of a statute is clear and unambiguous, the court may not by construction substitute its own idea of what might be a wise provision. First Bethel Associates v. Bethel, 231 Conn. 731, 739, 651 A.2d 1279 (1995). It is not the function of courts to read into clearly expressed legislation provisions that do not find expression in its words. Plasticrete Block & Supply Corp. v. Commissioner of Revenue Services, 216 Conn. 17, 27, 579 A.2d 20 (1990). This court must construe the statute without reference to whether we feel that the law might have been improved by the inclusion of other provisions. Emergency Medical Services Commission v. Freedom of Information Commission, 19 Conn. App. 352, 355, 561 A.2d 981 (1989). It is our duty to apply the law, not to make it. Murray v. Lopes, 205 Conn. 27, 34, 529 A.2d 1302 (1987); see generally 20 Am. Jur. 2d, Courts § 64 (1995). “ ‘The intent of the legislature, as [the Supreme Court] has repeatedly observed, is to be found not in what the legislature meant to say but in the meaning of what it did say.’ ” Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals, 225 Conn. 432, 441, 623 A.2d 1007 (1993), quoting Burnham v. Administrator, 184 Conn. 317, 325, 439 A.2d 1008 (1981).

The majority lists nine Connecticut cases in which a defendant moved to introduce evidence of the victim’s prior sexual conduct under the rape shield statute and points out that without exception the trial courts allowed an evidentiary hearing to determine the admissibility of the evidence. I submit that those decisions followed the law as written and that it was understood that no attempt could be made to inject a new requirement.

Third, the cases from sibling jurisdictions relied on by the majority do not support its position. The Idaho statute, for example, does not contain an offer of proof requirement. The preliminary showing of reasonable cause, judicially adoptedin that state, serves essentially the same purpose as the offer of proof requirement, which our legislature added in 1983. For us to superimpose the requirement of a preliminary showing of relevancy in addition to the statutory offer of proof would establish an unwarranted second obstacle to a defendant’s right of cross-examination. State v. Johnson, 21 Conn. App. 291, 293, 573 A.2d 1218 (1990).

Fourth, the preliminary showing of relevancy requirement as a prerequisite to a hearing on a defendant’s offer of proof is contrary to prior decisions of this court. Earlier in this opinion, I pointed out that we have held that a party may not be denied a hearing on an offer of proof. State v. Zoravali, supra, 34 Conn. App. 433; State v. Lussier, supra, 7 Conn. App. 532. If we are going to overrule those cases, we should do it only after a thoroughly briefed and argued appeal based on a proper trial court record.

For the foregoing reasons I respectfully dissent from the majority opinion and would affirm the judgment of the trial court.

       General Statutes § 53a-70 provides in pertinent part: “(a) A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .”

       General Statutes § 53a-72a provides in pertinent part: “(a) A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person or a third person, or (B) by the threat of use of force against such other person or against a third person, which reasonably causes such other person to fear physical injury to himself or herself or a third person . . . .”

       General Statutes § 54-86f provides: “In any prosecution for sexual assault under sections 53a-70, 53a-70a, and 53a-71 to 53a-73a, inclusive, no evidence of the sexual conduct of the victim may be admissible unless such evidence is (1) offered by the defendant on the issue of whether the defendant was, with respect to the victim, the source of semen, disease, pregnancy or injury, or (2) offered by the defendant on the issue of credibility of the victim, provided the victim has testified on direct examination as to his or her sexual conduct, or (3) any evidence of sexual conduct with the defendant offered by the defendant on the issue of consent by the victim, when consent is raised as a defense by the defendant, or (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights. Such evidence shall be admissible only after a hearing on a motion to offer such evidence containing an offer of proof. On motion of either party the court may order such hearing held in camera, subject to the provisions of section 51-164x. If the proceeding is a trial with a jury, such hearing shall be held in the absence of the jury. If, after hearing, the court finds that the evidence meets the requirements of this section and that the probative value of the evidence outweighs its prejudicial effect on the victim, the court may grant the motion. The testimony of the defendant during a hearing on a motion to offer evidence under this section may not be used against the defendant during the trial if such motion is denied, except that such testimony may be admissible to impeach the credibility of the defendant if the defendant elects to testify as part of the defense.”

       Because we are remanding this case for a new trial and cannot conclude that the issue concerning the Secondino argument by the prosecution will recur on retrial, we need not address this issue. State v. Jones, 35 Conn. App. 839, 647 A.2d 43 (1994).

       The transcript includes the following exchange, for example.
      “[The Court]: Now, you want to offer something. Go ahead, offer whatever it is you want to offer. [The state] has some objection to some parts of it, I suppose. . . . Does the rape shield statute have a number?
      “[Defense Counsel]: Section 54-86f. I’m relying on subsection four although two also gets into it.
      “[The Court]: Two and four.
      “[Defense Counsel]: Issue of credibility.
      “[The Court]: Do you have any objection?
      “[The State]: Some parts of it, yes.
      “[The Court]: You want an opportunity to go through it and isolate them and pick out what it is you wish to object to?
      “[The State]: It is any reference to the prior sexual — it is any reference to any prior sexual assaults committed upon the person of [the victim]. . . . If I understand the offer, and frankly since he’s already brought up the incest, which I never thought we were going to hear about without an offer of proof, I suppose I would include that. I don’t know how counsel drew a line somewhere between the time we were going to have an offer of proof and the time he brought up the incest.
      “[The Court]: [Counsel for the defense] subsection two and subsection four of the statute 54-86f — what is it you claim has occurred that makes this evidence admissible? . . . He objects to any records that include prior sexual history. What is your claim with respect to the admissibility? What part of this statute section two and section four do you claim you have satisfied?
      “[Defense Counsel]: Considering the history of this person from ’79 to current where she has hallucinations, where she has delusions, paranoia, again talking from ’79 to the present time she had sex hallucinations. These are all the questions that I would make an offer of proof on .... I mean I believe that I should be able outside the presence of the jury to get—
      “[The Court]: No, sir. You are offering an exhibit. There is objection based on the rape shield law. That’s what I’m deciding on now.
      “[Defense Counsel]: I’m trying to make a stronger case. If I’m able to question this witness outside the presence of the jury as to whether these rapes actually took place, then if I was able to do that and it was clear or obvious or strong probability these rapes never took place, I would be introducing — I would want to introduce the reports about them and the oral testimony.
      “[The Court]: The rape shield law does not just protect the victim from having questions asked about that subject in the presence of the jury, it protects the person from having questions asked about that subject.”

       The records indicated that L had stated in an initial interview that she had been raped when she was seventeen and gang raped when she was twenty-one.

       The legislative history pertaining to the consideration of the 1983 amendment to the rape shield statute indicates that the addition of a requirement of an offer of proof when making a motion to offer evidence of a victim’s prior sexual conduct would make the law more protective of the privacy rights of the victim. “This bill would require that the motion to offer evidence on prior sexual conduct contain an offer of proof . . . ,”26S. Proc., Pt. 5,1983 Sess., p. 1798, remarks of Senator Howard T. Owens, Jr. “The purpose of this bill is to place further restriction on the admissibility of evidence of prior sexual conduct. It would strengthen the law which was passed last year.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 1983 Sess., p. 94, remarks of Senator Amelia Mustone.

       Our determination does not constitute the creation of an additional step in the process. Rather, what is involved is the determination of the defendant’s right in a given case to cause the victim to take the witness stand for the purpose of answering questions concerning sexual conduct that the rape shield law was enacted to protect. If the right is automatic and no showing is required, as the dissent’s reading of the statute seems to suggest, there is nothing to prevent such evidentiary hearings to be used routinely as fishing expeditions into the prior sexual conduct of the victim. In this case, the trial court allowed the defendant the right to be heard on the motion. The court exercised its discretion and denied the defendant’s request for a further evidentiary hearing involving the victim’s testimony on matters of sexual conduct.

       Idaho Code § 18-6105 (1987) provides in pertinent part: “The defendant may make application to the court before or during the trial for the admission of evidence concerning the previous sexual conduct of the prosecuting witness. Upon such application the court shall conduct a hearing out of the presence of the jury as to the relevancy of such evidence of previous sexual conduct and shall limit the questioning and control the admission and exclusion of evidence upon trial. . . .” (Emphasis added.)

       We note that many jurisdictions have made this issue moot by drafting their rape shield statute’s procedure for admitting a victim’s prior sexual conduct with more specificity than found in our own. See, e.g., Colo. Rev. Stat. § 18-3-407 (1986 & Sup. 1994); Del. Code Ann. tit. 11, §§ 3508, 3509 (1987 & Sup. 1992); Ind. Code § 35-37-4-4 (1994); Pa. Stat. Ann. tit. 18, § 3104 (1983).
      Pennsylvania’s rape shield statute provides: “A defendant who proposes to offer evidence of the alleged victim’s past sexual conduct pursuant to subsection (a) shall file a written motion and offer of proof at the time of trial. If, at the time of trial, the court determines that the motion and offer of proof are sufficient on their faces, the court shall order an in camera hearing and shall make findings on the record as to the relevance and admissibility of the proposed evidence pursuant to the standards set forth in subsection (a).” Pa. Stat. Ann. tit. 18, § 3104 (b) (1983).

       The issue of the showing required as a basis for an evidentiary hearing was precisely what the parties and the trial court were discussing. In sustaining the objection on the failure of the defendant to produce the requested “basis in fact,” the trial court premised its ruling on the issue of the requisite showing. The fact that neither the parties nor the court discussed the matter in terms of the court’s exercise of discretion does not prevent us from correctly identifying the issue.

       The sixth amendment to the United States constitution provides impertinent part: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . . .”
      The fourteenth amendment to the United States constitution provides in pertinent part: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . . .”

       Article first, § 8, of the Connecticut constitution provides in pertinent part: “In all criminal prosecutions, the accused shall have a right ... to be confronted by the witnesses against him . . . .”

       The court went on to state: “ ‘These authorities reflect, and apparently are in response to, the increased recognition that sex offense victims already have been put through a traumatic experience and are subject to further traumatic experience by being subjected to cross-examination concerning the incident. It necessarily follows that needless possibilities for increasing that trauma should be reduced as much as permissible.’ ” State v. Dabkowski, supra, 199 Conn. 197-98 n.5.

       In 1983, the words “containing an offer of proof” were added by Public Acts 1983, No. 83-113, and, in 1985, Public Acts 1985, No. 85-347, eliminated references to “prior” sexual conduct throughout General Statutes § 54-86f.

       Holding the hearing in camera is subject to the court closing requirements of General Statutes § 51-164x; see also Practice Book § 895.

       See footnote 1.