author: Foti, J. O’Connell, J.,

text:
    In re Christopher G.

    (6596)
    Spallone, O’Connell and Foti, Js.
    Argued March 16
    decision released September 26, 1989

      Richard Emanuel, for the appellant (defendant).

      Carolyn K. Longstreth, deputy assistant state’s attorney, with whom were Warren Maxwell, assistant state’s attorney, and, on the brief, Susan C. Marks, assistant state’s attorney, for the appellee (state).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Foti, J.

The defendant appeals from the judgment adjudicating him to be a youthful offender pursuant to General Statutes § 54-76b by reason of having committed the crimes of sexual assault in the first degree; General Statutes § 53a-70 (a); assault in the third degree; General Statutes § 53a-61 (a) (1); and criminal mischief in the third degree. General Statutes § 53a-117a. The defendant claims that the trial court erred (1) in requiring him to commence his defense prior to the completion of the state’s case-in-chief, and (2) in denying him access to certain psychiatric records of the victim. We find no error.

The trial court could reasonably have found the following facts. At the time of the assault, the complainant was a sixteen year old high school student who resided in West Hartford with her parents. The defendant was also a high school student living in West Hartford with his parents. In November, 1986, a twenty-two year old neighbor was asked to stay with the complainant while her parents were away on a week long trip. On November 10,1986, during her parents’ absence, the complainant met the defendant. That evening, the complainant invited the defendant and his friends to her house and after a short visit, they left. During that week, she called the defendant at his home a few times.

On November 15, while her parents were still away, the complainant invited some of her friends to her house for a party. Sometime between 9 and 10 p.m., the complainant called the defendant at work and invited him to the party. The defendant arrived at approximately 11 p.m., and parked his car on the front lawn. At the defendant’s request, the complainant accompanied him to the basement while the only other two remaining guests were upstairs. While in the laundry room, the defendant asked the complainant if it was true that she “wanted his body.” The complainant did not respond initially but then said she wanted to go upstairs. When the defendant refused, the complainant asked him to leave. The defendant became angry and struck her on the right side of her forehead causing her to fall back onto the floor and hit her head. Consequently, she lost consciousness for a brief time. When she sat up, the defendant was on his knees with his pants unzipped and partially pulled down. He then forced her to perform an act of fellatio. The complainant did not call out for help, and, as a result of the act, gagged and vomited. The defendant repeated this act twice with the same result. The defendant then removed the complainant’s pants and performed vaginal intercourse. The complainant did not resist but testified: “I was in shock. It never occurred to me to do anything. I was so scared I just sat there.”

After one of the teenagers shouted that the adult neighbor had returned home, the defendant got up and left the house. Later that night, the complainant saw that the front lawn was newly tom up by car tire tracks. That evening she told several friends, her neighbor’s mother, and a doctor about the incident. The following Monday, she recited the events to her gynecologist. On November 24,1986, she gave a written statement to the police.

I

The defendant’s first claim on appeal is that the trial court’s ruling that required him to proceed with his case prior to the completion of the state’s case-in-chief violated his constitutional and procedural rights. Specifically, the defendant alleges that this action violated his rights to a fair trial, due process of law, effective assistance of counsel and his privilege against self-incrimination. U.S. Const., amends. V, VI, XIV; Conn. Const., art. I, § 8. The defendant also claims that this ruling violated Practice Book § 874. Because there is no indication on the record that the defendant made these arguments at trial, we decline to review these claims.

The following facts are relevant to our decision not to review this issue. On the first day of trial, the defendant moved for disclosure of the complainant’s mental health records. Action on the motion was postponed in order to allow the defendant to subpoena Nancy Lathrop, the complainant’s psychiatrist, and any mental health records she might possess concerning her treatment of the complainant. In the meantime, by agreement of the parties, the state proceeded with its case-in-chief and the defendant postponed his cross-examination of the state’s witnesses, where necessary, pending the court’s ruling on his motion for disclosure.

On Tuesday, the next court date, the trial court commenced its voir dire of Lathrop, but did not complete its questioning and requested that Lathrop return the next day. Due to scheduling conflicts, Lathrop could not return until the following Thursday. The parties agreed to postpone the completion of the court’s voir dire until Thursday and the state continued with its case in accordance with the prior arrangement. The court expressed its desire to proceed as efficiently as possible in order to avoid “prolonging the agony” of the trial for the complainant, the defendant and both families.

The next day, before the completion of Lathrop’s testimony and the court’s ruling on the defendant’s motion, the state indicated that it had no additional witnesses to present. When asked if he had completed his case-in-chief, the assistant state’s attorney responded that he would not rest his case until he had an opportunity to question the complainant on redirect examination. The court then asked the defendant’s counsel if he was ready to proceed with his case. Without specifying any grounds, the defendant’s counsel objected to commencing his case before the state rested. In response to the objection, the court stated: “Let me just indicate to you I have explained to you the reasons I think, in chambers, why we would proceed in this fashion. And it does not appear that your client’s rights will be prejudiced in any way. And, accordingly, I will ask you to call your next witness.” (Emphasis added.) Defense counsel excepted to this ruling but did not seek to have the chambers discussion placed on the record. The defendant then took the stand • and his testimony completed the proceedings for that day.

The following day, the trial court completed its voir dire of Lathrop and denied the defendant’s motion for disclosure of the complainant’s psychiatric records. The state then rested. The defendant moved for a judgment of acquittal, which the court denied, called his second and final witness, recalled the victim for further cross-examination, and then rested his case-in-chief.

The defendant acknowledges that trial courts have traditionally been accorded wide discretion in regulating the order of proof at trial; Practice Book § 874; State v. Allen, 205 Conn. 370, 380, 533 A.2d 559 (1987); but argues that the court abused its discretion in this case. In particular, the defendant maintains that the variation in the order of proof was erroneous for the following reasons: (1) neither party requested it; (2) expediency is an insufficient reason; (3) he was denied his right to present an orderly defense; (4) his decisions to testify on his own behalf and to present a defense were violated; and (5) he was prevented from obtaining a fair adjudication of his motion for judgment of acquittal.

Although the defendant excepted to the trial court’s ruling requiring him to proceed with his case prior to the completion of the state’s case-in-chief, he failed to place on the record any of the five grounds for his objection that he now seeks to have reviewed on appeal. On appeal, we are not bound to consider claims that are not “distinctly raised” at trial. Practice Book § 4185; State v. Lonergan, 16 Conn. App. 358, 362, 548 A.2d 718 (1988), cert. granted on other grounds, 210 Conn. 812, 556 A.2d 611 (1989). In raising claims of error on appeal, parties are limited to arguing the authority and grounds for objections that were presented at trial. State v. Brice, 186 Conn. 449, 457, 442 A.2d 906 (1982). “The purpose of the rule requiring that an exception be taken that distinctly states the objection and the grounds therefor is to alert the court to any claims of error while there is still an opportunity for correction.” State v. Utz, 201 Conn. 190, 207, 513, A.2d 1191 (1986).

It is apparent that a discussion of the defendant’s objection occurred in the trial court’s chambers. We are unable to decipher, however, from the scant discussion of this matter on the record what grounds, if any, the defendant advanced at trial in opposition to going forward with his case. Consequently, without such a discussion appearing on the record, it is impossible to review any possible prejudice this discretionary ruling may have had on the defendant’s case without resorting to speculation. “We can decide the merits of an appeal only on the record presented. . . . [W]e cannot resort to matters extraneous to the record. . . . While a true picture may not be presented here because of a conversation that took place in chambers, the case, nevertheless, must be decided on the record.” (Citations omitted.) Hasbrouck v. Hasbrouck, 195 Conn. 558, 560, 489 A.2d 1022 (1985); see also Eamiello v. Piscitelli, 133 Conn. 360, 363, 51 A.2d 912 (1947).

In making his objection, the defendant did not state his reasons, request the court to place the chambers discussion on the record, or attempt to clarify this deficiency in the record by utilizing the rectification procedure set forth in our rules of practice. Practice Book § 4051. It is the appellant’s duty to present this court with an adequate record for review. Practice Book § 4061. The defendant having failed to present us with the basis for his objection to the alteration of the trial order, we are unable to review his claim on appeal.

II

The defendant’s next claim is that the trial court violated his state and federal constitutional rights by denying his motion for disclosure of certain portions of the complainant’s psychiatric records. We have reviewed the records in this case and find that the trial court properly denied the defendant’s motion.

The following facts are relevant to this issue. In order to determine the existence of psychiatric records, the court conducted a voir dire of the victim’s father. According to her father, between February and May, 1987, she and her parents visited a psychiatrist for family counseling because the victim was having difficulty growing up and the family was experiencing parent-child conflicts. After receiving permission from the victim’s father, her guardian ad litem, and absent any objection by either party, the court conducted an in camera review of the psychiatric records. After the in camera inspection, and with the benefit of those records before it, the court conducted a voir dire of Lathrop, the family’s counselor. Lathrop’s testimony revealed the existence of a doctor-patient relationship with the complainant and her parents. Lathrop testified that the only time that she and the complainant had discussed the assault was at their first session, and that that discussion was reflected in her notes transcribed after that first session. The complainant’s father then waived the privilege as to that portion of the records relating only to the assault, and the court disclosed that information to the defendant. Lathrop further testified that the majority of the other sessions involved discussions of parent-child conflicts, including the complainant’s truthfulness with her parents. Lathrop opined that the complainant was not suffering from any mental, emotional, or psychiatric condition that substantially affected her ability accurately to observe, recall or relate events either on November 15, 1986, or at the time of the trial. As to the remaining written records, Lathrop indicated that they did not concern the incident in question, nor did they reflect any mental condition that would affect the complainant’s testimonial capacity.

During defense counsel’s questioning regarding the remaining notes, Lathrop testified that the complainant had discussed a fantasy that was not specifically sexual, was common among young women, and did not affect her ability to recall and communicate events. Lathrop indicated that she did not know whether this fantasy occurred before or after the assault but that in her opinion, such a dream would be a natural consequence of a sexual assault.

The trial court inquired as to the existence of any unrecorded communications that might reflect a mental condition bearing on the complainant’s ability to observe, recall and relate events either at trial, during the counseling sessions or at the time of the offense. The response was negative. The trial court denied the defendant’s motion for disclosure as to the remaining written records, and sealed them for the purpose of appellate review.

The defendant does not question the procedure employed by the trial court in ruling on his motion, but rather alleges it erred in failing to release certain portions of those records. Given the critical importance of the complainant’s credibility, particularly as to the one basic element in dispute — consent—the defendant argues that the trial court took an unduly restrictive view of the impeachment nature of Lathrop’s notes. Consequently, the defendant maintains that the court improperly impeded his cross-examination of the complainant and his direct examination of Lathrop. We disagree.

The issue of the disclosure of a witness’ private psychiatric history requires us to balance two competing interests, the defendant’s right to confrontation and the witness’ right to privacy. State v. Boutwell, 18 Conn. App. 273, 276, 558 A.2d 244 (1989). The defendant’s right to effective cross-examination is an essential one and shapes our “determination of whether the defendant gains access to material such as is involved here. . . . This does not mean . . . that any such records must be disclosed to the defendant simply because they relate to a key state’s witness whose claimed lack of credibility is the foundation of the defense.” State v. Storlazzi, 191 Conn. 453, 457-58, 464 A.2d 829 (1983).

“The linchpin of the determination of the defendant’s access to the records is whether they sufficiently disclose material ‘especially probative of the ability to “comprehend, know and correctly relate the truth” ’; United, States v. Lindstrom, 698 F.2d 1154, 1165-66 (11th Cir. 1983); so as to justify breach of their confidentiality . . . .” (Emphasis added.) State v. Storlazzi, supra, 459; State v. Hufford, 205 Conn. 386, 402, 533 A.2d 866 (1987). “Whether and to what extent access to the records should be granted to protect the defendant’s right of confrontation must be determined on a case by case basis.” State v. Storlazzi, supra, 459. At this stage in the proceedings, when the trial court has reviewed the records in camera, access to the records “must be left to the discretion of the trial court which is better able to assess the probative value of such evidence as it relates to the particular case before it . . . and weigh that value against the interest in confidentiality of the records.” (Citation omitted.) Id.

We have carefully examined the challenged psychiatric records, and conclude that the trial court could reasonably have found that they contain no evidence that is probative of the victim’s testimonial capacity or that is relevant to her impeachment. Accordingly, the trial court did not abuse its discretion in refusing to disclose the records to the defendant.

There is no error.

In this opinion Spallone, J., concurred.

O’Connell, J.,

dissenting. I do not agree with the holding of the majority pertaining to the nondisclosure of certain portions of the psychiatrist’s records. The credibility of the sexual assault victim was crucial to the state’s case because, as in many sexual assault cases, the victim was the only witness to the actual crime. In re Robert H., 199 Conn. 693, 707, 509 A.2d 475 (1986). Where, as here, the conviction depends largely upon the testimony of a particular witness, evidence affecting that witness’ credibility takes on a constitutional aspect because, if that witness is not believed, a reasonable doubt of guilt has been created. State v. Storlazzi, 191 Conn. 453, 462, 464 A.2d 829 (1983); State v. D'Ambrosio, 14 Conn. App. 309, 316, 541 A.2d 880 (1988).

I agree with the majority that “[wjhether and to what extent access to [psychiatrist’s] records should be granted to protect the defendant’s right of confrontation must be determined on a case by case basis.” State v. Storlazzi, supra, 459. The victim’s right to privacy in her psychiatric records must be balanced against the defendant’s right to defend himself. See Davis v. Alaska, 415 U.S. 308, 320, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Hufford, 205 Conn. 386, 403, 533 A.2d 866 (1987); State v. Boutwell, 18 Conn. App. 273, 276, 558 A.2d 244 (1989). When these competing interests are weighed in this case, I feel the scales clearly tip in favor of the defendant.

During voir dire by the court; see State v. Pierson, 201 Conn. 211, 228, 514 A.2d 724 (1986); State v. Saraceno, 15 Conn. App. 222, 243-44, 545 A.2d 1116 (1988); the psychiatrist testified to the effect that the victim had discussed a fantasy with her that was not specifically sexual. Notwithstanding that the trial court had examined the psychiatrist’s record in camera and knew the nature of the fantasy, the trial court denied disclosure of the portion of the psychiatrist’s report referring to this fantasy and ordered the report sealed for our review on appeal.

An examination of this report discloses that the fantasy in question was a pregnancy fantasy. In view of the biological connection between sex and pregnancy, I find it difficult to grasp the rationale behind the trial court’s failure to classify this as a sexual fantasy. Our Supreme Court recognizes that a “ ‘[s]exual fantasy’ is a basis for ‘broad cross-examination’ of the complainant in sex cases.” State v. Ouellette, 190 Conn. 84, 103, 459 A.2d 1005 (1983). I feel the pregnancy fantasy constituted a sexual fantasy and the defendant was entitled to its disclosure.

The court based its disclosure denial of the fantasy not only on the psychiatrist’s opinion that it was not of a sexual nature, but also because she did not know whether or not it existed on the date of the crime. In regard to this second ground of denial, the psychiatrist conceded that if it had existed at the time of the crime, it would definitely be relevant to the issue of whether the sexual activity at issue was consensual. Since the defendant was totally unaware of the existence of this fantasy, at any period of time, he was prevented from examining the victim to explore its possible existence at the time of the crime.

In addition, the undisclosed records also contained material pertaining to a suicide attempt by the victim as well as her lack- of truthfulness with her parents. It is my opinion that both of these matters as well as the pregnancy fantasy should have been disclosed to the defendant in order for him to exercise fully his right of cross examination. See State v. Storlazzi, supra, 459 and n.4; State v. Boutwell, supra; State v. Petterson, 17 Conn. App. 174, 180, 551 A.2d 763 (1988); State v. Saraeeno, supra, 245.

I conclude that the trial court should have ordered the disclosure of that portion of the psychiatrist’s records that indicated (1) that the victim had had a pregnancy fantasy, (2) that she had attempted suicide about a year before the crime, and (3) that conflicts with her parents involved her truthfulness with them. Failure to make these disclosures violated the defendant’s right to due process of law, his right to confront and cross-examine witnesses, his right of compulsory process, and his right to present a defense; U.S. Const., amends. V, VI, XIV; Davis v. Alaska, supra.

I would find error and remand the case for a new trial.

       “[General Statutes] Sec. 54-76b. youthful offenders: definitions. For the purpose of sections 54-76b to 54-76n, inclusive, ‘youth’ means a minor who has reached the age of sixteen years but has not reached the age of eighteen years; and ‘youthful offender’ means a youth who has committed a crime or crimes which are not class A felonies, who has not previously been convicted of a felony or been previously adjudged a youthful offender, or been afforded a pretrial program for accelerated rehabilitation under section 54-56e, and who is adjudged a youthful offender pursuant to the provisions of said sections. The interstate compact on juveniles, except the provisions of article four thereof, shall apply to youthful offenders to the same extent as to minors below sixteen years of age.”

       “[Practice Book] Sec. 874. — order of parties proceeding at trial. Unless the judicial authority for cause permits otherwise, the parties shall proceed with the trial in the following order:
      “(1) The prosecuting authority shall present his case in chief.
      “(2) The defendant may present a case in chief.
      “(3) The prosecuting authority and the defendant may present rebuttal evidence in successive rebuttals, as required. The judicial authority for cause may permit a party to present evidence not of a rebuttal nature, and if the prosecuting authority is permitted to present further evidence in chief, the defendant may respond with further evidence in chief.
      “(4) The prosecuting authority shall be entitled to make the opening and final closing arguments.
      “(5) The defendant may make a single closing argument following the opening argument of the prosecuting authority.”

       Specifically, the defendant argues that the trial court’s denial of his motion for disclosure violated his rights to due process, to confront and cross-examine adverse witnesses, compulsory process, and to present a defense. U.S. Const., amends. V, VI, XIV; Conn. Const., art. I, § 8.

       We note that the voir dire was not limited merely to discovering whether there were any admissible “unrecorded communications”; State v. Pierson, 201 Conn. 211, 228, 514 A.2d 724 (1986); but also included all written notes of the sessions. The parties were allowed to participate fully in the questioning of the witness.

       Our review of the record reveals that the so-called fantasy involved is a teenager’s thoughts of what it would be like to be pregnant and have a child to care for. The record discloses nothing of a sexual nature connected with this fantasy. Although we are cognizant that information related to a witness’ sexual fantasy is a basis for broad cross-examination in sexual assault cases; State v. Ouellette, 190 Conn. 84, 103, 459 A.2d 1005 (1983); the psychiatric testimony presented in this case revealed that the pregnancy fantasy had no sexual connotation. Furthermore, in cases in which sexual fantasies have been found to be relevant to the issue of credibility, the relevant inquiry was whether the witness could distinguish fact from fiction, that is, did the incident occur, and were the fantasies explicitly sexual or did they involve allegations of or failure to report other sexual assaults. See id.; State v. Pierson, 201 Conn. 211, 514 A.2d 724 (1986); People v.
        Francis, 5 Cal. App. 3d 414, 85 Cal. Rptr. 61 (1970). The issue here is not whether the incident actually occurred, but rather whether there was consent.
      On this record, the only evidence that might possibly support the defendant’s argument, that the complainant’s thoughts of having a child are relevant to her credibility, was the opinion of Nancy Lathrop, the complainant’s psychiatrist, that if the fantasy occurred before the assault, it would be relevant to the issue of consent. We are unpersuaded that Lathrop’s hypothetical opinion as to the timing of the fantasy is sufficient to render erroneous the trial court’s determination as to the relevance of this material. First, whether this evidence is admissible to impeach the victim, and relevant to the issue of consent, is a legal issue to be determined by the court. Lathrop’s opinion on this issue is merely one aspect of the trial court’s discretionary determination. Second, after learning that the fantasy might be relevant if it had occurred before the assault, the defendant did not attempt to question the victim through an offer of proof to determine when she first experienced this fantasy. Because we believe that the burden to place such information on the record is on the defendant, we are not prepared to overrule a trial court’s discretionary determination on mere speculation as to the timing of a fantasy of questionable relevance.
      After the trial court has conducted an in camera inspection, our threshold of review is limited to examining whether the trial court abused its discretion in failing to disclose the complainant’s psychiatric records. State v. Kelly, 208 Conn. 365, 545 A.2d 1048 (1988); State v. Storlazzi, 191 Conn. 453, 464 A.2d 829 (1983). The record reveals sufficient facts from which the trial court could have determined that details as to the victim’s fantasy were not relevant to impeach her credibility.

       Following the trial, the court unsealed the records and permitted the defendant to review them for the purpose of preparing his appeal. We note that this procedure is inappropriate and defeats the confidentiality requirements of General Statutes § 52-146e. The proper procedure is to seal any records that are privileged and not discoverable after ruling on the defendant’s motion for disclosure. Those records should remain sealed through the completion of the appellate process for the purpose of review by an appellate court.

       For a discussion of the procedural requirements that the defendant must meet in order to gain access to privileged information, see State v. Pierson, 201 Conn. 211, 514 A.2d 724 (1986); State v. Esposito, 192 Conn. 166, 471 A.2d 959 (1984); State v. Boutwell, 18 Conn. App. 273, 558 A.2d 244 (1989).

       General Statutes § 52-146e prohibits disclosure of certain confidential communications.


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    State of Connecticut v. Eric N. Person
    (6774)
    Spallone, Daly and Foil, Js.

      Argued June 22
    decision released September 26, 1989

      F. Mac Buckley, with whom, on the brief, was Hubert J. Santos, for the appellant (defendant).

      Harry Weller, deputy assistant state’s attorney, with whom, on the brief, were Walter Flanigan, state’s attorney and Mary Elizabeth Barran, assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crimes of risk of injury to a child, General Statutes § 53-21, and sexual assault in the second degree, General Statutes § 53a-71 (a) (l). The defendant claims that the trial court erred (1) in permitting a key defense witness to assert his fifth amendment privilege in the presence of the jury, (2) in prohibiting the defendant from calling certain expert witnesses, (3) in prohibiting the defendant from questioning the victim’s best friend concerning the friend’s complaint of sexual assault against her father, (4) in admitting as a state’s exhibit an audiotaped interview given by the victim, (5) in permitting two police detectives to give opinions concerning the victim’s credibility and “common pattern” evidence in child abuse cases, (6) in not declaring a mistrial after the prosecutor questioned a defense witness regarding his use of marihuana at the defendant’s apartment, and (7) in permitting hearsay testimony that the defendant’s sister had asked one of the victims not to testify and then warning the defendant’s sister, in the presence of the jury, of her right against self-incrimination.

The defendant was arrested and charged with one count of sexual assault in the fourth degree; General Statutes § 53a-73a (a) (1) (D); and one count of risk of injury to a child; General Statutes § 53-21; in connection with certain sexual acts allegedly perpetrated against his older daughter. He was tried to a jury on these charges, along with the charges of risk of injury to a child and sexual assault in the second degree related to offenses involving his younger daughter, age eight at the time of the trial. He was acquitted of the crimes involving the older daughter, but was convicted of the two counts involving his younger daughter (the victim).

The defendant and the victim’s mother were divorced in June, 1981. Subsequent to the divorce, the victim visited the defendant on weekends at his apartment in . Danbury. At trial, the victim stated that during these visits the defendant would take her into his bedroom and engage in a number of sexual acts with her. The victim described these acts very specifically, in graphic detail. Moreover, the victim used anatomically correct dolls to describe the defendant’s sexually abusive behavior.

The victim’s doctor provided constancy of accusation testimony, stating that there was physical evidence of the victim’s molestation. Other constancy of accusation testimony was provided by the victim’s mother and two police officers who had investigated the matter. Following his conviction of the crimes of risk of injury to a child and sexual assault in the second degree, the defendant filed this appeal.

The defendant’s first claim of error is that the trial court erred in permitting a key defense witness to assert a fifth amendment privilege in the presence of the jury. The following facts are relevant. Following the defendant’s testimony, he called his friend, Dean Mercier, to testify for the defense. Mercier testified that he had been a frequent visitor at the defendant’s apartment during the period of time the alleged assaults on the victim occurred and that nothing unusual had transpired while he was at the apartment. On cross-examination, in response to the state’s question regarding how well he was able to perceive events during his visits to the apartment, Mercier stated that his perception was very sharp. The state then inquired whether it was true that, during such visits, Mercier frequently smoked marihuana. The defendant objected to this question, and the court excused the jury. In argument to the court, the state claimed that its inquiry into Mercier’s use of marihuana was proper because a positive answer would call into question his ability to perceive events properly. The defendant argued that the introduction of this issue into the case was inflammatory and moved for a mistrial. The court denied the defendant’s motion for a mistrial. The court indicated that, although the question would have been improper if asked of the defendant, it was permissible for the state to question a defense witness regarding his ability to perceive. Mercier, apparently concerned that an answer to the question might incriminate him, asked for the opportunity to consult with an attorney. He left the witness stand, and, upon returning later, agreed to answer the state’s questions, despite the fact that he had been unable in the interim to contact his attorney. The trial court advised Mercier against testifying under the circumstances, however, and Mercier was excused for the day.

When Mercier was recalled for cross-examination, he informed the court that he would not answer any questions about marihuana use. Defense counsel argued that Mercier’s invocation of his fifth amendment privilege should occur outside the presence of the jury. The trial court denied the defendant’s request, and the defendant excepted. In the jury’s presence, the state asked Mercier eight questions regarding his use of marihuana. In response to each question, Mercier asserted his fifth amendment privilege against self-incrimination.

The following day, the defendant recalled Mercier, and at that time Mercier waived his fifth amendment privilege and testified that he had never smoked marihuana in the defendant’s apartment when the victim was present. Upon recross-examination, the state asked several questions designed to show that Mercier’s present denial of marihuana use was inconsistent with his previous assertion of his privilege against self-incrimination. During final argument, the state argued that Mercier was not credible because he had first asserted his privilege against self-incrimination and later waived that privilege, denying any involvement in any illegality.

We note at the outset that the defendant’s first claim does not present any constitutional issues. The defendant claims no violation of his own constitutional rights, and he has no standing to assert the constitutional rights of the witness. See State v. Williams, 206 Conn. 203, 208, 536 A.2d 583 (1988); State v. Jones, 205 Conn. 723, 739, 535 A.2d 808 (1988). In essence, therefore, he presents a claim of evidentiary trial error.

The defendant claims that the circumstances in this case present the type of situation that warrants reversal of his conviction and a new trial under the theories discussed in Namet v. United States, 373 U.S. 179, 83 S. Ct. 1151, 10 L. Ed. 2d 278 (1963). Our Supreme Court discussed Namet v. United States, supra, in State v. Reddick, 197 Conn. 115, 126, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986). “In Namet v. United States [supra], the United States Supreme Court addressed the issue of when a witness’ claim of his privilege not to answer results in reversible error. The court outlined two aspects of the issue, each suggesting a distinct ground of error. ‘First, some courts have indicated that error may be based upon a concept of prosecutorial misconduct, when the Government makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege. ... A second theory seems to rest upon the conclusion that, in the circumstances of a given case, inferences from a witness’ refusal to answer added critical weight to the prosecution’s case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant.’ ” State v. Reddick, supra. The defendant bases his claim of error on both theories, arguing that the prosecutor deliberately utilized the fact that Mercier had asserted his privilege against self-incrimination as a trial tactic to create “the overall implication of depravity and licentiousness in the defendant’s household” and to prejudice the defendant unfairly. We find the defendant’s claim unpersuasive and reject his assertion that a new trial is necessary.

First, this case does not present the scenario of prosecutorial misconduct contemplated hjNamet v. United States, supra. This is not a situation in which the prosecutor deliberately called to the stand a witness whom she knew intended validly to invoke the privilege against self-incrimination. See id., 185-86; United States v. Maloney, 262 F.2d 535 (2d Cir. 1959). Rather, in this case the witness was called by the defense, and the witness’ assertion of the privilege occurred in the context of cross-examination by the prosecutor. Nor should the prosecution’s conduct be characterized as “deliberate attempts by the Government to make capital out of [the witness’] refusals to testify.” Namet v. United States, supra, 189. The prosecutor’s initial purpose in questioning Mercier regarding his use of marihuana was to impeach his credibility by casting doubt on his ability to perceive and recall the events that were the subject of his testimony. The capacity of a witness to observe, recollect and narrate an occurrence is a proper subject of inquiry on cross-examination. State v. Esposito, 192 Conn. 166, 176, 471 A.2d 949 (1984). Consumption of alcohol or drugs obviously can impair an individual’s ability to observe and recall accurately and so is a proper subject of inquiry on cross-examination. State v. Heinz, 3 Conn. App. 80, 86, 485 A.2d 1321 (1984). At the outset, then, the prosecutor’s questioning of Mercier was proper. There is no support for the defendant’s claim of prosecutorial misconduct.

Moreover, this is not a case in which “ ‘inferences from a witness’ refusal to answer added critical weight to the prosecution’s case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant.’ ” State v. Reddick, supra, 126, quoting Namet v. United States, supra, 187. This is not a case, for instance, in which the prosecutor used the assertion of the privilege by an accomplice or someone linked to the defendant’s crimes in order to build a case against the defendant. See State v. Reddick, supra, 127. Again, the prosecutor was merely cross-examining Mercier in an attempt to impeach his credibility. Mercier’s assertion of the privilege cannot be seen as having formed the bases for inferences adding “critical weight” to the prosecutor’s case. Although his refusal to answer questions concerning his use of marihuana could conceivably have caused the jury to draw an impermissible inference that he was asserting the privilege in order to hide the fact that he used marihuana; see State v. Daley, 11 Conn. App. 185, 188, 526 A.2d 14 (1987); the jury’s drawing that inference would not have given critical weight to the prosecution’s case. It would merely have resulted in the discrediting of a defense witness. Even if the possibility that the jury drew an impermissible inference from the fact of Mercier’s assertion of the privilege could be seen as being of critical weight, any prejudice to the defendant caused thereby was defused by Mercier’s subsequent testimony denying the use of marihuana. That testimony presumably settled whatever questions might have been raised in the minds of the jurors regarding his reasons for asserting the privilege. In any event, “no prejudice will generally be presumed to flow from the refusal of a witness to answer questions concerning acts committed by him unrelated to the defendant’s alleged crime . . . .’’People v. Jones, 138 App. Div. 2d 405, 406, 525 N.Y.S.2d 689 (1988). We therefore conclude that the defendant in this case was not unfairly prejudiced by a likelihood that inferences from Mercier’s assertion of a fifth amendment privilege added critical weight to the prosecution’s case in a form not subject to cross-examination.

The state acknowledges, however, and we agree, that it was improper for the trial court to permit recross-examination for the purpose of establishing inconsistency between the implications of Mercier’s assertion of the privilege against self-incrimination and his subsequent testimony that he had not used marihuana in the defendant’s apartment. The refusal of a witness to testify, on the ground that it would incriminate him, cannot be the basis of any inference, either favorable to the prosecution or favorable to the defendant. State v. Daley, supra. Therefore, no inconsistency could be shown between Mercier’s refusal to testify and his later statement that he had not used marihuana in the defendant’s apartment. We conclude, however, that the error was harmless.

In his second claim, the defendant argues that it was error for the trial court to prohibit him from establishing, through the testimony of a psychiatrist and a psychologist, that the defendant did not fit the profile of a pedophile.

The trial court has wide discretion in ruling on the admissibility of expert testimony. State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986). In reviewing the trial court’s decision, we do not decide whether this or any other court would have reached the same conclusion. State v. S & R Sanitation Services, Inc., 202 Conn. 300, 311-12, 521 A.2d 1017 (1987). Absent a manifest abuse of discretion, the trial court’s decision will stand. State v. Spigarolo, 210 Conn. 359, 376, 556 A.2d 112 (1989); State v. Hasan, 205 Conn. 485, 488, 534 A.2d 877 (1987). We agree with the state that the trial court did not abuse its discretion when it rejected the defendant’s proffer of expert testimony on whether the defendant fit the profile of a pedophile.

A majority of the courts that have considered the issue have rebuffed attempts on the part of the state as well as the defendant to present testimony of this kind. See, e.g., Douglas v. United States, 386 A.2d 289 (D.C. App. 1978) (evidence that defendant fit into statistical category of abuser extremely prejudicial); Sanders v. State, 251 Ga. 70, 303 S.E.2d 13 (1983); State v. Loebach, 310 N.W.2d 58 (Minn. 1981) (error to admit profile of battering parents); State v. Claflin, 38 Wash. App. 847, 690 P.2d 1186 (1984); State v. Steward, 34 Wash. App. 221, 660 P.2d 278 (1983). In Douglas v. United States, supra, 296, the court noted that the defendant, through expert testimony, was attempting to prove “that the absence of articulated or observable sexual abnormalities established the fact that he did not commit the particular offense with which he had been charged.” The court stated, “[w]e do not regard the field of psychology as being so exact ... as to be able to determine with sufficient reliability that an individual did not commit a certain act, based solely on the presence of some characteristics and the absence of certain observable symptoms.” (Emphasis in original.) Id. We agree that psychiatric evidence regarding the propensity or lack of propensity of a defendant to commit a crime should not be allowed. See C. Tait & J. LaPlante, Handbook of Connecticut Evidence (2d Ed.) § 7.16.3 (i). When scientific expertise is offered in an area outside the general knowledge of the average juror, the subject matter of such testimony must be sufficiently established to have gained general acceptance in the particular field. Frye v. United States, 293 F. 1013, 1014 (D.C. App. 1923). “ ‘Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.’ ” State v. Hasan, supra, 489, quoting Frye v. United States, supra; see also State v. Spigarolo, supra. The defendant failed to elicit testimony from either expert that the profile that was to be the subject of his testimony was accepted by the scientific community.

Moreover, the trial court was justified in excluding the expert testimony offered by the defendant because the defendant failed to demonstrate that the witnesses had a special skill or knowledge directly applicable to a matter at issue that would make their testimony informative and helpful to the jury. “Expert testimony is admissible if the witness possesses a special skill or knowledge directly applicable to a matter in issue, the skill or knowledge is not commonly shared by the average person, and the testimony would be helpful to the court or jury in considering the issues . . . . ” State v. Hasan, supra, 488. Although the defendant’s experts testified that they were experienced in treating a number of sexual offenders and victims, they did not testify to having had any experience dealing with incestuous relationships such as that presented in this case. At least one modem commentator takes the view that the incest offender’s chief aberrancy is incest and that, usually, there is no history of other sexually related problems occurring outside the family. Groff & Hubble, “Incest,” 11 Criminal Justice and Behavior, 461, 473 (1984). Incestuous fathers are often excluded from the studies of pedophiles. M. de Chesney, “Father Daughter Incest,” 4 Behavioral Sciences and the Law, 382 (1985). Because the defendant never established that his expert witnesses had expertise in areas directly related to intrafamily sexual abuse, the trial court could reasonably have concluded that it was unlikely that their testimony would be of help to the jury.

The defendant’s third claim is that the trial court erred in excluding evidence that the victim’s best friend had accused her father of conduct similar to the conduct in which the defendant had engaged. The following facts are relevant. The friend was the first person the victim told that she was being sexually abused by her father. The friend reported the conversation to her mother, who, in turn, informed the victim’s mother. As a result of a complaint made by the friend, the friend’s father had been charged with two counts of risk of injury and two counts of sexual assault in the second degree. To establish this fact and the fact that the victim and her friend had discussed these matters, the defense subpoenaed the friend. The state filed a motion in limine seeking to bar the friend’s testimony. The friend’s personal counsel moved to quash the subpoena. The defendant argued that the friend’s testimony could be vital to the defense and that he wished to question her for the purpose of proving knowledge of sexual activity on the part of the friend and the victim and a motive on the part of the two children against their respective fathers. Counsel wanted to investigate the possibility that the victim had obtained her knowledge of sexual matters from stories told to her by the friend, as well as the possibility that the victim and the friend had either fabricated or fantasized the events described by the victim. The trial court ruled that the defendant could not question the friend regarding the charges against her father, but that the defendant could question her regarding statements the victim had made to her concerning the activities of the defendant. The court relied, in part, on relevancy grounds.

The trial court has broad discretion in determining the relevancy of proffered evidence. State v. Pollitt, 205 Conn. 61, 91, 530 A.2d 155 (1987). A ruling excluding evidence as irrelevant will not be disturbed absent a showing of a clear abuse of discretion. State v. Fritz, 204 Conn. 156, 167-68, 527 A.2d 1157 (1987); State v. Watkins, 14 Conn. App. 67, 73, 540 A.2d 76, cert. denied, 208 Conn. 804, 545 A.2d 1102 (1988). In a determination of whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. State v. DeAngelis, 200 Conn. 224, 238, 511 A.2d 310 (1986); State v. Escobales, 16 Conn. App. 272, 277, 547 A.2d 553 (1988).

The defendant urges upon us the proposition that, because the victim and her friend made similar complaints against their fathers, the jury should have been made aware of this fact for the purpose of weighing the credibility of the victim. The defendant’s argument rests upon an assumption that the victim’s credibility would somehow automatically be placed in question by evidence of the fact that she had a friend who claimed, as did she herself, to have been the victim of sexual abuse. There is no necessary logical link, however, between the fact that the victim had a friend who also claimed to be a victim of sexual abuse and a conclusion that the victim might therefore be an unreliable witness whose testimony regarding the defendant’s actions was not worthy of belief. In the absence of evidence tending to show the significance, if any, of the fact that the friend had also claimed to have been sexually abused, that fact indicates nothing about the accuracy and reliability of the victim’s testimony regarding the defendant. In the absence of evidence to establish a connection between the friend’s personal circumstances and the victim’s credibility, the trial court reasonably concluded that the basis for the defendant’s questions was mere speculation and that further inquiry was therefore unjustified. See State v. Daniels, 8 Conn. App. 190, 194, 512 A.2d 936 (1986).

The defendant’s fourth claim is that the trial court erred both in admitting into evidence, as a state’s exhibit, an audiotape recording of an interview with the victim conducted by Detective Daniel Mulvey of the Danbury police department, and in permitting the jury to bring the tape into the jury room to play during its deliberations. The circumstances surrounding admission of the tape were as follows. Mulvey testified that, on February 10, 1987, he conducted an audiotaped interview with the victim during which he took her statement. Mulvey used a question and answer format to obtain the statement. The state offered the tape as an exhibit. The defendant objected on sixth amendment and hearsay grounds. The state argued that the tape was admissible under the constancy of accusation exception to the hearsay rule. The trial court agreed with the state that the tape was admissible to show constancy of accusation, and the tape was admitted as state’s exhibit 2 and played to the jury during the trial. The trial court explained to the jury that the tape had been admitted to show constancy of accusation, and it fully explained the constancy of accusation doctrine in its instructions. The jury was permitted to take the tape and a tape recorder into the jury room during deliberations.

We first consider the state’s argument that the defendant’s claim is not reviewable because the defendant did not object when the court permitted the jurors to take a tape recorder into the jury room so that they would be able to play the tape during deliberations. The state contends that the defendant thus failed to preserve the issue for appellate review. See Practice Book § 4185. We disagree. The defendant’s objection to the admissibility of the tape was sufficient to express his objection to its submission to the jury. The purpose of any evidentiary objection is to prevent the evidence from being considered by the trier of fact. Having objected to the admissibility of the tape, the defendant successfully preserved the issues distinctly raised before the trial court for appellate review. See Practice Book § 4185. He was not required to repeat those objections at the time the jury was given the tape recorder for use during deliberations.

Although we have found that the defendant took the necessary steps in the trial court to preserve for appellate review the issue of whether the trial court erred in admitting the tape under the constancy of accusation exception to the hearsay rule, we nevertheless decline to review his claim because he has failed adequately to brief the issue. Under such circumstances, we consider the claim abandoned and decline to review it. See State v. Fiocchi, 17 Conn. App. 326, 327 n.3, 553 A.2d 181, cert. denied, 210 Conn. 812, 556 A.2d 611 (1989). Similarly, although the defendant objected in the trial court to admission of the tape on the ground of denial of his sixth amendment right to confrontation, and now repeats that claim on appeal, he has failed to discuss the issue in his briefs to this court. We therefore decline to review this claim as well.

The defendant’s fifth claim of error is that the trial court erred in permitting two police detectives to render opinions concerning the victim’s credibility and “common pattern” evidence in child abuse cases. Neither his claim that one of the detectives was improperly allowed to comment on the credibility of the victim, nor his claim that the other detective was impermissibly permitted to testify regarding patterns of conduct of child molesters, was raised by him in the trial court. We need not review evidentiary claims that were not distinctly raised in the trial court. See Practice Book § 4185; State v. Rogers, 199 Conn. 453, 462, 508 A.2d 11 (1986). Moreover, the defendant states no claim for review under State v. Evans, 165 Conn. 61, 67-69, 327 A.2d 576 (1973), and we see no reason to accord the defendant’s claims plain error review. See State v. Smith, 209 Conn. 423, 426-27, 551 A.2d 742 (1988).

The defendant’s sixth claim is that the trial court erred in twice refusing to grant a mistrial following questions by the prosecutor concerning use of marihuana at the defendant’s apartment. The prosecutor first raised the question of marihuana use during the victim’s testimony. When the victim was asked if the defendant smoked anything around her, she answered that he smoked cigarettes. The victim was then asked whether the defendant ever smoked anything else. The defendant objected, and the jury was excused. The court sustained the objection and gave a cautionary instruction. The defendant moved for a mistrial, and the court denied the motion.

The issue of marihuana use arose again when the defendant called his landlord, Joseph Marzullo, who testified on direct examination that the defendant and the victim had a good relationship. On cross-examination, the prosecutor asked Marzullo if his opinion about the defendant’s relationship with the victim would change if he knew that the defendant regularly smoked marihuana in front of the children. The defendant objected, and the jury was excused. The court sustained the objection. The defendant moved again for a mistrial, and the court denied the motion.

The general rule in Connecticut is that a mistrial is granted only where it is apparent that as a result of some occurrence during trial a party has been deprived of the opportunity for a fair trial. State v. Hancich, 200 Conn. 615, 624-25, 513 A.2d 638 (1986); State v. Maldonado, 193 Conn. 350, 356, 478 A.3d 581 (1984). The trial court enjoys wide discretion in deciding whether a mistrial is warranted,' and its decision will be reversed on appeal only if it is established that this discretion has been abused. State v. Hancich, supra, 625.

The defendant argues that, because drug use is regarded by many persons “in today’s environment” as a major threat to society, testimony about marihuana use at the defendant’s apartment in the presence of his children was “so obviously prejudicial as to deny the defendant a fair trial.” We disagree with the defendant’s contention that in the circumstances of this case the trial court should have declared a mistrial. In the first instance, the record fails to support the defendant’s contention that there was any “testimony” regarding the use of marihuana. It appears that objections were made and sustained on both occasions that the prosecutor attempted to elicit information in this regard. Even if the questions were improper, as the trial court apparently decided they were, the fact that the questions were asked is not enough to deprive the defendant of a fair trial, particularly where the court gave an appropriate cautionary instruction to the jury. We conclude that the trial court did not abuse its discretion in denying the defendant’s motions for a mistrial.

The defendant’s final claim is that the trial court erred both in admitting hearsay testimony that the defendant’s sister had told his older daughter not to testify and then in advising the defendant’s sister, in the presence of the jury, of her privilege against self-incrimination.

The state called Jo-Ann Person, the mother of the defendant’s older daughter. She testified that the defendant’s older daughter had told her that the defendant’s sister, Holly Person, had called and asked his older daughter not to testify against the defendant. The defendant objected on the ground that the testimony was hearsay. The trial court admitted the testimony under the constancy of accusation exception to the hearsay rule.

Later in the trial, the defendant’s sister was called to testify. The defendant asked her whether she had telephoned Jo-Ann Person in March, 1987, and Holly Person responded that she had done so. The defendant asked her who had answered the telephone. Holly Person answered that the defendant’s older daughter had answered. When the defendant asked Holly Person to describe what occurred during the ensuing telephone conversation, the state objected, and the court engaged the witness in the following exchange:

“The Court: I should warn you, since you do not have an attorney present, and I have been informed, I don’t know if it’s true or not, but we got partially into the— are you under arrest for any criminal charge?
“The Witness: No, I am not.
‘The Court: Okay. There was a reference by the police department that they made a referral to another police department concerning these telephone calls, and I just wish to tell you that you do not need to answer any of these questions on the grounds that it might tend to incriminate you.
“The Witness: Your Honor—
“The Court: Since you don’t have an attorney here, I’m obligated, by law, to tell you that.
“The Witness: Thank you, Your Honor. May I answer the question?
“The Court: That’s going to be up to you.
“The Witness: I will. May I explain?
“The Court: No, I don’t know what the question is, now — let’s get to the question.”

Thereafter, the witness answered questions concerning the telephone conversation.

The defendant argues that the court’s admission of Jo-Ann Person’s testimony regarding what the defendant’s older daughter told her was erroneous because the testimony was hearsay. We will not review this claim because the defendant has failed to brief the issue of whether the trial court erred in admitting the testimony under the constancy of accusation exception to the hearsay rule. We note, however, that even if the court’s, ruling was erroneous, the defendant has failed to demonstrate that such error was harmful. When a claimed error is evidentiary, the defendant bears the burden of establishing its harmfulness. State v. Nelson, 17 Conn. App. 556, 568, 555 A.2d 426 (1989). In this case, the jury had already heard, from the defendant’s older daughter herself, about Holly Person’s telephone conversation with her. An erroneous ruling should not be considered reversible error if the evidence admitted thereby has already properly entered the case. Id. Therefore, even if the trial court erred in admitting Jo-Ann Person’s testimony regarding what the defendant’s older daughter told her, the record is clear that the error was harmless.

With regard to the court’s remarks to Holly Person, the defendant argues that the court erred in questioning her as it did in the presence of the jury “in a manner bearing directly on her credibility.” Relying on State v. Echols, 170 Conn. 11, 14, 364 A.2d 225 (1975), he argues that a judge must refrain from making remarks that are indicative of either favor or condemnation. The defendant contends that the court’s remarks deprived him of a fair trial.

The defendant’s arguments are without merit. First, on the basis of the evidence presented at the trial, the court simply anticipated the possibility that the witness, who was not represented by counsel, might be entitled to assert her fifth amendment privilege against self-incrimination. The court took reasonable steps to inform the witness of her rights and to give her a meaningful opportunity to exercise them if she chose. We do not think this solicitousness on the part of the court with regard to the witness’ constitutional rights caused the witness’ credibility to be compromised before the jury. Moreover, the court’s action was not, as claimed by the defendant, in any way indicative of condemnation. We fail to see how the court’s remarks could possibly have caused the defendant to be deprived of a fair trial.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53-21. injury or risk of injury to, or impairing morals of, children. Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       General Statutes § 53a-71 provides in pertinent part: “(a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is (1) under sixteen years of age . . . .”

       The defendant’s younger daughter was eight years old at the time of the trial in 1987. The events complained of occurred sometime between September 1, 1984 and January 31, 1987.

       The questions the prosecutor asked Mercier were as follows: (1) Whether he frequently smoked marihuana while at the defendant’s apartment; (2) how often he smoked when the defendant’s children were present; (3) how much marihuana he smoked in general; (4) whether it was true he smoked marihuana in the presence of the defendant’s children on a regular basis; (5) with whom he smoked marihuana at the defendant’s apartment; (6) whether he “got high” when he smoked marihuana when the children were there; (7) whether, when he “got high” when he smoked marihuana in the children’s presence, his ability to perceive events happening around him was affected; (8) whether he smoked marihuana with the defendant’s oldest son.

       The trial court apparently also based its ruling on General Statutes § 54-86d and § 54-86e, which provide as follows:
      “[General Statutes] Sec. 54-86d. DISCLOSURE OF ADDRESS OR telephone number by victims of sexual assault. Any person who has been the victim of a sexual assault under section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b or 53a-73a, or injury or risk of injury, or impairing of morals under section 53-21, or of an attempt thereof, shall not be required to divulge his or her address or telephone number during any trial or pretrial evidentiary hearing arising from the sexual assault or injury or risk of injury to, or impairing of morals of, children; provided the judge presiding over such legal proceeding shall find: (1) Such information is not material to the proceeding, (2) the identity of the victim has been satisfactorily established, and (3) the current address of the victim is made available to the defense.”
      “[General Statutes] Sec. 54-86e. INFORMATION RE name AND ADDRESS OF victim OF SEXUAL assault TO BE confidential. The name and address of the victim of a sexual assault under section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b or 53a-73a, or injury or risk of injury, or impairing of morals under section 53-21, or of an attempt thereof shall be confidential and shall be disclosed only upon order of the superior court, except that such information shall be available to the accused.”
      In his reply brief, the defendant argues that “[t]o the extent that the trial court relied upon Conn. Gen. Stat. Sec. 54-86e ... to rule that [the friend’s] testimony was to be excluded . . . it is unconstitutional as a violation of the due process clauses of the Constitution of The United States and the State of Connecticut.” The extent of the defendant’s briefing of this claim is this declaration in his reply brief followed by a citation to Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967). We will not review this claim under these circumstances. In any event, we need not review a constitutional claim where, as here, there is some other ground on which the case may be decided. See State v. Warren, 14 Conn. App. 688, 699, 544 A.2d 209 (1988).
      The record does not indicate whether the defendant argued that his constitutional right to confrontation would be implicated by a decision to exclude the friend’s testimony. Nevertheless, on appeal, he declares in his brief that “[t]he trial court’s decision to prohibit testimony concerning [the friend’s] accusations against her father denied [the] defendant his constitutional right to confrontation.” The defendant did not brief this claim and therefore we will not consider it.

       The defendant does declare in his brief that the constancy of accusation rule “does not permit the admission <of prior written, oral or videotaped statements of the victim. It simply permits the witness, in this case Detective Mulvey, to repeat what the victim told him, as long as the victim has so testified about the matter on direct examination.” Then, in his reply brief, the defendant states, “[w]hile the taped interview was allowed under the constancy of accusation exception to the hearsay rule, that exception could only apply to the complainant’s prior statement, not the statements of Detective Mulvey.” These declarations by the defendant represent the only briefing on the issue of whether the trial court erred in admitting the tape under the constancy of accusation exception to the hearsay rule. The defendant has cited no authority in support of these propositions.

       The defendant’s attempt to brief the issue is limited to a declaration in his reply brief that his “sixth amendment right to confront Detective Mulvey was violated” by the court’s decision to allow the jury to bring the tape to the jury room for use during deliberations.

       In his brief, the defendant also points to the prosecutor’s attempt to elicit responses regarding the use of marihuana from Dean Mercier. The claim involving Mercier has been sufficiently addressed in our discussion of the defendant’s first claim of error. It is unnecessary to repeat that discussion as part of our review of his sixth claim.


author: Per Curiam.

text:
    Edward M. Kenney et al. v. Planning and Zoning Board of the Town of Greenwich et al.
    (6197)
    Dupont, C. J., Spallone and Foti, Js.
    decision released October 10, 1989

      Eugene J. Riccio, with whom, on the brief, were Mark R. Carta, Kari Pedersen and Catherine Rinaldi, for the appellants (plaintiffs).

      Robert P. Dolían, with whom, on the brief, were Charles K. Campbell and Joseph N. Varón, for the appellees (defendants Daniel and Janet Barber).
   Per Curiam.

The Supreme Court granted the petition by the defendants Daniel and Janet Barber for certification for appeal from the Appellate Court, Kenney v. Planning & Zoning Board, 18 Conn. App. 549, 559 A.2d 721 (1989), argued April 13,1989, with the original decision released June 6,1989. On August 1,1989, the matter was “remanded to the Appellate Court for reconsideration in light of [the Supreme Court’s] decision in Spicer v. Zoning Commission, 212 Conn. 375 [562 A.2d 21 (1989)].” Kenney v. Planning & Zoning Board, 212 Conn. 808, 563 A.2d 1355 (1989).

In Kenney we held that failure either to cite or actually to serve the town clerk with copies of the plaintiffs’ appeal was a “technical” defect that would not render the appeal subject to dismissal, based on a broad reading of the validating statute, Public Acts 1988, No. 88-79, § 3 (a), and therefore we held that the trial court should not have dismissed the plaintiffs’ appeal. In Spicer v. Zoning Commission, supra, the Supreme Court held that at least actual delivery of a copy of the plaintiffs’ appeal to the clerk of a municipality is required or the appeal must be dismissed for lack of jurisdiction. Jurisdiction was found to exist in Ilvento v. Frattali, 210 Conn. 432, 555 A.2d 985 (1989), Capalbo v. Planning & Zoning Board of Appeals, 208 Conn. 480, 547 A.2d 528 (1988), and Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 543 A.2d 1339 (1988), because there was actual delivery of a copy of the appeal to the town or municipal clerk. In the present case the town clerk did not receive a copy of the plaintiffs’ appeal. Since that is so, the plaintiffs’ appeal should have been dismissed by the trial court for lack of jurisdiction.

There is no error.

Argued April 13

      Argued April 13


text:
    State of Connecticut v. Luis Maldonado
    (7067)
    Daly, O’Connell and Nokcott, Js.
    Argued September 14
    decision released October 10, 1989

      David P. Friedman, special public defender, with whom, on the brief was Paul F. Thomas, special public defender, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Brown, state’s attorney, and Linda Knight, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant was convicted after a jury trial of the crimes of unlawful possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-277 (a), carrying a pistol on his person without a permit in violation of General Statutes §§ 29-35 (a) and 29-37 (b), and criminal possession of a pistol in violation of General Statutes § 53a-217 (a). These convictions were based on a short, continuous incident wherein two police officers, while in the process of assisting in the execution of an arrest warrant against a different individual, observed the defendant on the second floor landing of the fire escape of a building. The defendant first dropped a white handkerchief from his right hand and, as the officers proceeded to the second floor, he entered a doorway into the building. The same two officers immediately retrieved the handkerchief, which was found lying on the landing of the fire escape, and, upon seeing that twelve packets of cocaine and a loaded gun were wrapped in the handkerchief, they proceeded to chase the defendant. Another officer in the vicinity assisted in the defendant’s arrest by apprehending him.

The defendant appeals the conviction of unlawful possession of a narcotic substance with intent to sell asserting (1) that the trial court erred in giving a jury instruction on the meaning of constructive possession since there was insufficient evidence to warrant an instruction on this form of possession, and (2) that the trial court violated his constitutional right to a unanimous jury verdict by failing to instruct the jury that it had to agree on how the element of possession was proven by the state.

As to the first issue, we find, from our review of the record, that sufficient evidence was presented to warrant a jury instruction on constructive possession. As to the second issue, this court denies review under State v. Evans, 165 Conn. 61, 70, 327 A.2d 526 (1973), because the defendant’s claim of error is not of constitutional dimension. See State v. Bailey, 209 Conn. 322, 337-38, 551 A.2d 1206 (1988); State v. Paladino, 19 Conn. App. 576, 580, 563 A.2d 321 (1989); cf. State v. Torrice, 20 Conn. App. 75, 564 A.2d 330 (1989); State v. Ostolaza, 20 Conn. App. 40, 564 A.2d 324 (1989).

There is no error.


author: Norcott, J.

text:
    David Lovesky v. Rafael Zeligzon et al.
    (7702)
    Daly, Norcott and Foti, Js.
    Argued September 19
    decision released October 17, 1989

      Mark S. Rosenblit, for the appellant (defendant Arlette Zeligzon).

      Elton B. Harvey III, for the appellee (plaintiff).
   Norcott, J.

The defendant Arlette Zeligzon, wife of the defendant Rafael Zeligzon, appeals from the denial of her motion to dissolve an ex parte prejudgment attachment granted pursuant to General Statutes § 52-278e. The sole issue in this appeal is whether the trial court erred in concluding that probable cause existed to support the validity of the plaintiff’s claim. We find no error.

The trial court could reasonably have found the following facts. The defendant wife, Arlette Zeligzon, is the owner of premises located at 142 Hampton Avenue, West Hartford. The defendant husband, Rafael Zeligzon, is a home improvement general contractor doing business under the name of Rafe’s Home Improvement. The plaintiff, David B. Lovesky, is a plumbing and heating subcontractor doing business as D.B.L. Plumbing and Heating.

In December, 1986, the defendant Rafael Zeligzon contracted with the plaintiff for the purchase and installation of plumbing and heating items at 142 Hampton Avenue which was under construction at that time. The contract called for the plaintiff to be paid a total of $5000, $3750 upon the completion of the rough plumbing and the $1250 balance upon the completion of the entire job. As a result of a dispute between the contracting parties, the plaintiff has not been paid for certain work performed by him under the contract. All of the plaintiffs dealings were with the defendant Rafael Zeligzon. The defendant wife was not a signatory to the contract in question.

In November, 1988, the plaintiff, as a result of the nonpayment, filed a complaint against the defendants for breach of contract, and alternatively, for unjust enrichment. As security therefor, he sought an ex parte prejudgment remedy of attachment against the defendant wife’s real estate. That attachment is the subject of this dispute.

On October 20, 1988, the trial court, Maloney, J., granted the plaintiff’s application for a prejudgment attachment in the amount of $6000 against the 142 Hampton Street property. Thereafter, on November 29,1988, the defendant wife moved to dissolve the attachment. The trial court, Kremski, J., held a probable cause hearing at which it heard testimony from the parties and received evidence of the plaintiff’s charges for his services. Included in the record was the plaintiff’s affidavit in support of his ex parte prejudgment attachment. On January 3, 1989, Judge Kremski denied the motion to dissolve the ex parte prejudgment attachment but reduced the amount of the attachment to $4000. The defendant wife now appeals from that order claiming that the trial court erred in finding that there was sufficient evidence to establish probable cause to sustain the validity of the plaintiff’s claim against her.

In deciding prejudgment remedy motions, the trial court does not hold a full-scale trial on the merits of the plaintiff’s claim. Augeri v. C. F. Wooding Co., 173 Conn. 426, 429, 378 A.2d 538 (1977); see also Goodwin v. Pratt, 10 Conn. App. 618, 621, 524 A.2d 1168 (1987). “Rather, the trial court, in ruling upon the defendant’s motion, need only weigh the evidence presented and ‘determine probable success by weighing probabilities.’ ” Gibbs v. Mase, 11 Conn. App. 289, 295, 526 A.2d 7 (1987), quoting Three S. Development Co. v. Santore, 193 Conn. 174, 176, 474 A.2d 795 (1984). The role of the trial court is to determine whether probable cause exists to maintain the prejudgment attachment. Green v. Holy Trinity Church of God in Christ, 16 Conn. App. 700, 703, 549 A.2d 281 (1988). “ ‘ “Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false.” ’ ” Anderson v. Nedovich, 19 Conn. App. 85, 88, 561 A.2d 948 (1989).

In reviewing the trial court’s probable cause determination, this court has a limited function. We do not duplicate the trial court’s weighing of probabilities of success of the underlying claim, but instead determine whether the trial court’s conclusion was reasonable. Price Saver, Inc. v. Maynard, 5 Conn. App. 90, 91, 496 A.2d 991 (1985); Babiarz v. Hartford Special, Inc., 2 Conn. App. 388, 393-94, 480 A.2d 561 (1984). “ ‘ “In the absence of clear error, this court should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility of at least some of the witnesses.” ’ Three S. Development Co. v. Santore, supra, quoting Augeri v. C. F. Wooding Co., supra.” Green v. Holy Trinity Church of God in Christ, supra, 704. In accordance with these standards, we conclude that it was not clear error for the trial court to deny the motion to dissolve the attachment.

The defendant wife claims that the trial court erred in its determination that there was probable cause to support the plaintiffs claims of agency, unjust enrichment and quantum meruit. The defendant wife argues that there was no evidence presented at that hearing from which the trial court could reach the legal conclusions necessary to support the attachment. We disagree.

By amended complaint dated December 23,1988, the plaintiff alleged that the defendant Rafael Zeligzon acted as the agent of his wife in executing the contract for the plaintiffs services on the premises located at 142 Hampton Avenue of which she was the true owner. The plaintiff further alleged that the defendant wife was unjustly enriched by the materials and labor supplied by the plaintiff and that he was entitled to recover damages under the theory of quantum meruit. After receiving the evidence at the probable cause hearing, the trial court denied the defendant wife’s motion to dissolve the attachment and concluded that “there was an agreement between the parties for the plaintiff to provide certain plumbing and heating equipment installations into the premises, title to which was in the defendant Arlette Zeligzon.”

Our review of the transcript reveals that evidence of agency, unjust enrichment and quantum meruit was clearly presented to the trial court. At the hearing, the court heard testimony (1) that the plaintiff believed Rafael Zeligzon to be the owner of the premises and that Rafael Zeligzon referred to the house as “My house, my property,” (2) that the plaintiff initially looked to Rafael Zeligzon for payment because he believed him to be the owner, (3) that the defendant wife considered her husband to be the general contractor who did everything with respect to the construction project, (4) that the wife borrowed money to finance the construction costs of the house that her husband was building for her, (5) that the wife visited the construction site at least once and had first hand knowledge of the plaintiffs work there, and (6) that, as of the date of the hearing, both defendants and their family continued to reside at the premises and to utilize the benefits of the plaintiffs labor and materials. “ ‘Weighing the evidence and judging the credibility of the witnesses is the function of the trier of fact and this court will not usurp that role.’ ” Temple v. Meyer, 208 Conn. 404, 407, 544 A.2d 629 (1988), quoting Gallo v. Gallo, 184 Conn. 36, 38-39, 440 A.2d 782 (1981). From the evidence presented at the hearing, we find that the trial court could reasonably have concluded as it did.

In support of our conclusion, we note that while the marital relationship does not per se prove an agency relationship; Botticello v. Stefanovicz, 177 Conn. 22, 26, 411 A.2d 16 (1979); the circumstances of the present scenario might well establish the proof of such a relationship at trial. Also, from the facts adduced at the hearing, we find that the trial court reasonably could have concluded “that the plaintiff may probably be successful in this action” on the equitable theories of unjust enrichment and quantum meruit as well.

The question of whether the plaintiff, in a trial on the merits, will prevail on the issues raised by his claims is not now before us. Our role on review is limited to determining whether the legal conclusions of the trial court were reasonable and have a reasonable basis, not whether they were correct. See Babiarz v. Hartford Special, Inc., supra, 394. The trial court’s decision to deny the dissolution of the prejudgment attachment order was not clearly erroneous.

There is no error.

In this opinion the other judges concurred.

       Both the plaintiff’s affidavit in support of the prejudgment remedy and the text of the order incorrectly identify the subject property as “144 Hampton Street, West Hartford.” The appendix, “Schedule A,” to that order, however, correctly identifies the premises as 142 Hampton Avenue, and, thus, the court will refer to this property by its accurate description.

       The transcript also reveals that both counsel referred to at least two of the issues, agency and unjust enrichment, during their closing arguments.


author: Stoughton, J.

text:
    Margaret Broderick v. Raymond J. Broderick
    (7359)
    Spallone, Stoughton and Foti, Js.
    Argued September 21
    decision released October 17, 1989

      David P. Ball, with whom, on the brief, was Steven M. Olivo, for the appellant (defendant).

      Jean S. Ferlazzo, with whom, on the brief, was Melissa A. Grauel, for the appellee (plaintiff).

      Michael J. Mannion, for the minor child.
   Stoughton, J.

The defendant has appealed from a judgment of dissolution of marriage, attacking certain of the financial orders in the judgment.

Before reaching the merits of this appeal, we must decide whether it should be dismissed. The plaintiff moved to dismiss the defendant’s appeal pursuant to Practice Book § 4183 (9), which is made applicable to this court by Practice Book § 2000. On September 11, 1989, the defendant was found in contempt by the trial court and an arrearage of $7000.50 for alimony and child support was found. Section 4183 (9) provides, in part, that an appeal may be dismissed unless the appellant is purged of contempt of the trial court.

An adjudication of contempt does not necessarily disqualify a party from affirmative relief, but an appellate court has discretion to decide whether contemptuous conduct warrants dismissal of an appeal. Greenwood v. Greenwood, 191 Conn. 309, 314, 464 A.2d 771 (1983).

In the dissolution action that is the subject of this appeal, the trial court made certain financial orders that have been attacked by the defendant. He moved to modify the orders, but the trial court denied his motion. He has been found in contempt five times for failure to pay periodic alimony and support and to make other payments. He has, however, appeared when summoned to court, and he has then made specific payments as ordered, although the arrearage continues to mount. On September 11,1989, he was found in contempt and ordered to pay $2000 that day and another $2000 by September 18,1989. Those payments have been made. Under the circumstances of this case, we have decided to reach the merits of this appeal in order to lay to rest any lingering hope that the defendant may possess that the trial court might be found to have committed error and its judgment reversed. Accordingly, the plaintiffs motion to dismiss the appeal is denied.

The defendant claims that the trial court erred in making its awards of alimony and support and in dividing the marital assets. We find no error.

The first claim made by the defendant is that the court erroneously based its order to transfer the amounts held on deposit in certain bank accounts in New York from the defendant to the plaintiff on a finding of a lack of credibility on the part of the defendant concerning those accounts. Our examination of the record shows ample evidence supporting the finding of lack of credibility made by the trial court. We cannot retry the facts. Peralli v. Pitkat, 19 Conn. App. 803, 804, 561 A.2d 986 (1989). Furthermore, although the trial court did conclude that the defendant’s testimony lacked credibility, it did not base its financial orders upon that conclusion. Rather, it specifically considered the factors enumerated in General Statutes § 46b-81 (c).

The defendant next claims that the trial court’s financial orders were based upon an erroneous finding that a new business that had been started by the defendant is likely to be successful and that his earning capacity is substantial. We find ample support in the record for the conclusion that the defendant had demonstrated substantial earning capacity. In appropriate circumstances, the trial court may base its financial orders on earning capacity rather than actual earned income. Hart v. Hart, 19 Conn. App. 91, 94, 561 A.2d 151 (1989). The ultimate inquiry in determining the‘income reasonably available to the supporting paying spouse is the earning capacity of the supporting paying spouse. Misiorski v. Misiorski, 11 Conn. App. 463, 469, 528 A.2d 829 (1987). The weight to be given the evidence and the credibility of the witnesses are within the sole province of the trial court, which had the unique opportunity to view the evidence presented in a totality of circumstances. Stearns v. Stearns, 4 Conn. App. 323, 327, 494 A.2d 595 (1985). We cannot retry the facts. Peralli v. Pitkat, supra.

Finally, the defendant claims that the trial court erred in finding that the tax liability resulting from the sale of his business was contingent upon certain losses and operational deficits in connection with his new business and that, consequently, the trial court erred in ordering that the defendant be solely responsible for all tax consequences relating to the ownership and sale of any of his businesses. There was evidence to support the finding of the trial court that the tax liability of the defendant was “somewhat contingent upon certain losses and operational deficits in connection with the new business.” This was but a part of a division of assets through which the plaintiff retained all interests and liabilities arising from a business owned by her and the defendant retained all interests and liabilities arising from a business owned by him. Our review of the record and briefs persuades us that the trial court acted reasonably in the exercise of its discretion and in accordance with the law.

There is no error.

In this opinion the other judges concurred.


author: Daly, J.

text:
    Donald Feigenbaum v. City of Waterbury et al.
    (7085)
    Daly, O’Connell and Norcott, Js.

      Argued September 13
    decision released October 24, 1989

      Allen J. Segal, for the appellant (plaintiff).

      John D. Mahaney, with whom, on the brief, was Gary S. Roosa, for the appellee (defendant Waterbury Renewal and Economic Development Agency).
   Daly, J.

Pursuant to General Statutes § 8-129, on October 24, 1986, the defendant Waterbury Renewal and Economic Development Agency (hereinafter the defendant), agent of the city of Waterbury, took certain property of the plaintiff by eminent domain and filed a statement of compensation fixing damages at $10,500. The plaintiff, pursuant to General Statutes § 8-132, appealed this award to the Superior Court. The court referred the case to the Hon. James P. Doherty, state trial referee, who exercised the powers of the Superior Court. See General Statutes §§ 52-434 and 52-434a (a). A hearing was held and judgment was rendered in favor of the plaintiff for an additional amount of $16,500 plus 10 percent interest as damages and $3000 appraisal fees. The plaintiff has appealed from that judgment.

The referee made the following factual findings. The plaintiffs property is a 9000 square foot lot located at 51-59 Maple Street in Waterbury. The lot is irregular in shape and subject to an eight foot wide easement which runs from Maple Street to the rear of the premises. Although the land was vacant at the time of the taking, there had been two buildings that contained numerous residential units. These buildings had fallen into disrepair, had been vacated by previous tenants and had been vandalized. As a result, in 1981, the city of Waterbury condemned the buildings as health hazards and ordered that they be razed. The court also found that the locality had been run down for residential use and that some nonconforming commercial and industrial buildings located in the neighborhood were in various stages of disrepair. At the time of the taking, the land was zoned RH, which allows multi-family residences. Evidence was presented, however, that, on the date of the taking, the city of Waterbury had taken steps for redevelopment purposes to obtain a zone change from multi-family residential use to light industrial use, and that within one year from the taking the zone change had occurred.

The plaintiffs two appraisers valued the property at $161,850 and $165,000. They employed a market data approach using residential sales and concluded that the highest and best use was multi-family residential. The defendant’s two appraisers assessed values of $15,000 and $20,000. Although the defendant’s appraisers also used residential sales when employing the market data approach, the defendant’s appraisers concluded that the highest and best use of the land was as an industrial park.

On the basis of these factual findings, the trial referee concluded that the highest and best use of the condemned land was light industrial, and awarded a total of $27,000 in damages. The plaintiff claims error in the determination of the fair market value of the condemned land.

“The owner of land taken by condemnation is entitled to be paid just compensation. Conn. Const., art. I § 11.” Lynch v. West Hartford, 167 Conn. 67, 73, 355 A.2d 42 (1974). “The usual measure of just compensation is the fair market value or the price that would probably result from fair negotiations between a willing seller and a willing buyer, taking into account all the factors, including the highest and best or most advantageous use, weighing and evaluating the circumstances, the evidence, the opinions expressed by the witnesses and considering the use to which the premises have been devoted and which may have enhanced its value.” Wronowski v. Redevelopment Agency, 180 Conn. 579, 585, 430 A.2d 1284 (1980).

“The scope of review of a trial court’s factual decision on appeal is limited to a determination of whether it is clearly erroneous in view of the evidence and pleadings. See Practice Book § 3060D [now § 4061].” Belle Camperland, Inc. v. Commissioner, 5 Conn. App. 678, 679, 501 A.2d 1226 (1985); see also Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980).

The first argument presented by the plaintiff is that he was denied just compensation because the trial referee concluded that the highest and best use of the condemned land was the lower status light industrial when contrary evidence was presented by the plaintiff’s appraisers that the highest and best use of the condemned land was multi-family residential. “The plaintiff would, in effect, have this court adopt the valuation of the condemned property most favorable to the plaintiff.” Belle Camperland, Inc. v. Commissioner, supra, 679.

In the present case, the trial referee was presented with conflicting evidence from the plaintiff’s appraisers and the defendant’s appraisers regarding both the highest and best use of the condemned land as well as its actual value, and it is apparent that credibility was a crucial factor. “In the case of a conflict in the opinions of experts, the court’s duty is to accept that testimony which appears to be more credible. Humphrys v. Beach, 149 Conn. 14, 20, 175 A.2d 363 (1961); Ball v. Branford, 142 Conn. 13, 17, 110 A.2d 459 (1954); Holden & Daly, Connecticut Evidence (1966 and Sup. 1983) § 118 (c). The acceptance or rejection of the opinions of the expert witness is a matter peculiarly within the province of the trier of fact and its determination will be accorded great deference by this court.” Sorenson Transportation Co. v. State, 3 Conn. App. 329, 331-32, 488 A.2d 458, cert. denied, 196 Conn. 801, 491 A.2d 1105 (1985). Because it was not error for the trial referee to give more credence to the opinion of the defendant’s appraisers in concluding that the highest and best use of the condemned land was light industrial and because there is nothing in the record which shows that in determining the value of the condemned land the trial referee “ ‘misapplied or overlooked, or gave a wrong or improper effect to, any test or consideration which it was his duty to regard’ ”; Budney v. Ives, 156 Conn. 83, 92, 239 A.2d 482 (1968), quoting Bennett v. New Haven Redevelopment Agency, 148 Conn. 513, 516, 172 A.2d 612 (1961); we find no error as to this claim.

The plaintiff’s second claim is that the trial referee should not have considered evidence of the proposed zone change initiated by the city of Waterbury in determining the fair market value of the land. The plaintiff conceded at oral argument that Budney v. Ives, supra, is dispositive of this issue if this court accepts the application of this rule to zone changes initiated by a municipality as opposed to the owner of the property.

The rule as stated in Budney is, “where such a [zone] change is reasonably probable and not merely a remote or speculative possibility, the probability may properly be considered in the determination of the fair value of property taken by eminent domain.” Id., 88.

We conclude that this rule applies to zone changes initiated by a municipality. This evidence must be considered because “[i]t cannot be doubted that both a prospective purchaser and a seller on the open market would consider the probability of a change in zoning restrictions affecting property which they considered buying and selling where such a change was reasonably probable in the reasonably near future.” Id.

Accordingly, in the present case, the trial referee did not commit error in considering this evidence as a factor affecting the value of the condemned land at the time of the taking.

In determining value, “ ‘a state referee sitting as a court on appeals in condemnation cases is more than just a trier of fact or an arbitrator of differing opinions of witnesses. He is charged by the General Statutes and the decisions of this court with the duty of making an independent determination of value and fair compensation in the light of all the circumstances, the evidence, his general knowledge and his viewing of the premises. . . Minicucci v. Commissioner of Transportation, 211 Conn. 382, 388, 559 A.2d 216 (1989), quoting Birnbaum v. Ives, 163 Conn. 12, 21-22, 301 A.2d 262 (1972). Here, the trial referee heard all the evidence, studied the appraisal reports and made his own independent determination of value. Id. It is the task of the court to reach a result that gives the plaintiff, as nearly as possible, a fair equivalent in money as just compensation for the land taken and we find nothing in the record that indicates that the court failed to perform this task properly in reaching its evaluation of the plaintiffs property. Mathis v. Redevelopment Agency, 165 Conn. 622, 623, 345 A.2d 33 (1973).

There is no error.

In this opinion the other judges concurred.