text:
    JAMES A. PEPITONE v. JEROLD W. SERMAN ET AL.
    (AC 21963)
    Mihalakos, Dranginis and Flynn, Js.
    Submitted on briefs February 28
    officially released May 7, 2002

      Paul Bialobrzeski filed a brief for the appellant (plaintiff).

      David M. Spinner filed a brief for the appellees (defendants).
   Opinion

DRANGINIS, J.

The plaintiff, James A. Pepitone, appeals from the judgment of the trial court rendered after it granted the motion for summary judgment in favor of the defendants, Jerold W. Serman and Jerold W. Serman, Inc. On appeal, the plaintiff claims that the court improperly concluded that he could not bring his action under the accidental failure of suit statute, General Statutes § 52-592, and, therefore, that his action is time barred by the applicable statute of limitations. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. On June 28,1993, the plaintiff and the defendants entered into a contract wherein the plaintiff was to provide consulting services to the defendants for a period of forty-five days following the defendants’ purchase of a particular property in Madison. In exchange for the plaintiffs consulting services, the defendants were to pay him a total of $47,500 by the final day of the forty-five day period.

The defendants closed on the subject property on September 30, 1993. On July 22, 1996, the plaintiff filed an action against the defendants, claiming breach of contract and nonperformance based on the defendants’ alleged failure to pay the $47,500 due under the contract. The plaintiff also filed an application for a prejudgment remedy in July, 1996. A prejudgment remedy hearing was held on October 15, 1996. At the hearing, the individual defendant testified that he had paid the $47,500 to a third party pursuant to an order of garnishment. More significantly, the plaintiff revealed that he had a pending bankruptcy action. On the basis of the plaintiffs pending bankruptcy action, the court denied the plaintiffs application without prejudice and stayed the proceedings until the plaintiff filed an affidavit demonstrating whether the parties’ consultant agreement was an asset of the bankruptcy estate.

The plaintiff failed to provide any information to the court regarding whether his claim against the defendants was an asset of the bankruptcy estate. As a result, the court issued a dormancy notice to the parties in December, 1996, and dismissed the case for dormancy on February 14, 1997. The plaintiff filed a motion to open the case on February 24, 1997, which the court granted. There was no activity on the case until October 20, 1998, when the plaintiff filed a motion to restore the case to the docket, which the court granted on January 13, 1999.

Thereafter, there was no activity with regard to the case. Accordingly, the court issued notice on August 10,1999, that if the plaintiff failed to close the pleadings by October 31, 1999, it would dismiss the case. In its notice, the court also reminded the plaintiff that he had not yet replied to the defendants’ special defenses or answered the defendants’ counterclaim, which had been filed in October, 1996. After the plaintiff failed to close the pleadings, on November, 19, 1999, the court dismissed the plaintiffs case pursuant to Practice Book § 14-3. The plaintiff did not file a motion to open the dismissal.

The plaintiff commenced the present action on November 15, 2000. In counts one and two of the complaint, the plaintiff again alleged breach of contract based on the defendant’s failure to pay the $47,500. In the third and fourth counts, the plaintiff incorporated counts one and two, respectively, and alleged that he had brought his action pursuant to the accidental failure of suit statute, § 52-592. The defendants then filed a motion for summary judgment on the grounds that counts one and two were time barred by the statute of limitations, as set forth in General Statutes § 52-576, and, further, that under the circumstances of this case, the plaintiff could not avail himself of § 52-592.

The court granted the defendants’ motion for summary judgment on the ground that there is no genuine issue of material fact that counts one and two are time barred by the applicable statute of limitations. Moreover, the court concluded that the plaintiff was not entitled to avail himself of § 52-592 because the dismissal of his case “was not a matter of form in the sense that it resulted from mistake, inadvertence or excusable neglect.” This appeal followed.

The plaintiff claims that the court applied improper legal standards in granting summary judgment in favor of the defendants. In essence, however, the plaintiff contends that the court improperly concluded that he was not entitled to avail himself of § 52-592.

“The standards governing our review of atrial court’s decision to grant a motion for summary judgment are well established. Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . .

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Because the trial court rendered judgment for the [defendant] as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record.” (Citations omitted; internal quotation marks omitted.) Kronberg v. Peacock, 67 Conn. App. 668, 671-72, 789 A.2d 510, cert. denied, 260 Conn. 902, 793 A.2d 1089 (2002).

As previously stated, § 52-592, the accidental failure of suit statute, provides in relevant part: “(a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits . . . for any matter of form . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.” Deemed a “saving statute,” § 52-592 enables plaintiffs to bring anew causes of action despite the expiration of the applicable statute of limitations. Gillum v. Yale University, 62 Conn. App. 775, 781, 773 A.2d 986, cert. denied, 256 Conn. 929, 776 A.2d 1146 (2001). Although § 52-592 should be broadly construed because of its remedial nature, it should not be construed “so broadly as to hamper a trial court’s ability to manage its docket by dismissing cases for appropriate transgressions.” Id., 782.

Our Supreme Court in Ruddock v. Burrowes, 243 Conn. 569, 576-77, 706 A.2d 967 (1998), instructed that “[w]hether the statute [§ 52-592] applies cannot be decided in a factual vacuum. To enable a plaintiff to meet the burden of establishing the right to avail himself or herself of the statute, a plaintiff must be afforded an opportunity to make a factual showing that the prior dismissal was a ‘matter of form’ in the sense that the plaintiffs noncompliance with a court order occurred in circumstances such as mistake, inadvertence or excusable neglect.” Central to a determination of whether § 52-592 applies is the particular nature of the conduct involved. Id., 570.

We conclude that the court properly granted the defendants’ motion for summary judgment. The underlying events of this case occurred in 1993. Nine years later, the plaintiff still has not managed to prosecute his action. The court dismissed his case for dormancy in February, 1997, and again dismissed it for failure to close the pleadings in November, 1999. In fact, the court twice issued notice to the plaintiff that failure to close the pleadings would result in a dismissal. Moreover, at the time that the court dismissed the case in 1999, the plaintiff still had not filed a reply to the defendants’ special defenses or answered their counterclaim. The plaintiff failed to file a motion to open that dismissal and further has not proffered any explanations for his conduct.

Given the history of the case, we cannot conclude that the plaintiffs actions that led to the dismissal of his case constituted a mere accident or simple negligence. See Skibeck v. Avon, 24 Conn. App. 239, 242-43, 587 A.2d 166, cert. denied, 219 Conn. 912, 593 A.2d 138 (1991). As we noted in Skibeck, “[t]o allow this action to continue at this time would defeat the basic purpose of the public policy that is inherent in statutes of limitation, i.e., to promote finality in the litigation process.” Id., 243. The court properly determined, as a matter of law, that the plaintiff in this case could not avail himself of § 52-592. We therefore conclude that the court properly granted the defendants’ motion for summary judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are Jerold W. Serman, individually, and his business, Jerold W. Serman, Inc., a Connecticut corporation.

       General Statutes § 52-592, the accidental failure of suit statute, provides in relevant part,: “(a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits ... for any matter of form . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.”

       The record does not reveal whether the plaintiff has yet disclosed to the court whether the parties’ consultant agreement was an asset of the bankruptcy estate.

       The court also noted the plaintiffs failure to reply to the special defenses and to answer the counterclaim.

       The plaintiff based counts one and two on his claim that the defendants acknowledged the debt during the prejudgment remedy hearing, thereby tolling the six year statute of limitations.

       General Statutes § 52-576 (a) provides in relevant part: “No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues

       Specifically, the court determined that the defendants did not acknowledge the existence of the debt at the prejudgment remedy hearing and, therefore, the statute of limitations was not tolled. The plaintiff does not challenge that conclusion.

       The plaintiff does not challenge the court’s conclusion that counts one and two are time barred by the statute of limitations. Rather, he claims that the court improperly determined that General Statutes § 52-592 does not apply to his case.

       In his brief, the plaintiff also makes the blanket statement that the court improperly employed a preponderance of the evidence standard in deciding the motion for summary judgment. The plaintiff fails to cite any particular language or portion of the memorandum of decision indicating that the court utilized such a standard. Accordingly, we need not specifically address that inadequately briefed portion of his claim.


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    TOWN OF EAST LYME v. NEW ENGLAND NATIONAL, LLC, ET AL.
    (AC 21807)
    Lavery, C. X, and Bishop and Hennessy, Js.
    Argued January 8
    officially released May 14, 2002

      Brian B. Staines, with whom, on the brief, was Lee N. Johnson, for the appellant (named defendant).

      Charles C. Anderson, for the appellee (plaintiff).
   Opinion

BISHOP, J.

In this action to foreclose two municipal tax liens, the defendant New England National, LLC, appeals from the judgment of foreclosure by sale rendered by the trial court in favor of the plaintiff, the town of East Lyme. The defendant claims that the court improperly rejected three of its special defenses alleging that (1) the defendant made payments sufficient to discharge its outstanding tax obligation for the years 1993 and 1994, (2) the plaintiff violated 12 U.S.C. § 1825 (b) by filing a certificate to continue a tax lien on property in which the Federal Deposit Insurance Corporation (FDIC) held an interest and (3) the plaintiff filed the tax liens in violation of the automatic stay provisions of the Bankruptcy Code. We affirm the judgment of the trial court.

The court set forth the following undisputed facts in its memorandum of decision dated November 9, 2000. “On July 25, 1989, CCNE Group Limited Partnership purchased the subject property, located at 16 Mostowy Road in East Lyme. On September 20,1989, CCNE mortgaged the property to Suffield Bank, with guarantees by Kenneth Schwartz and Leonard Ginsberg. On May 22, 1991, Suffield Bank commenced a mortgage foreclosure action against CCNE and the guarantors. While the mortgage foreclosure action was pending, the FDIC, in its capacity as receiver for Suffield Bank, was substituted as the plaintiff. One of the guarantors, Kenneth Schwartz, filed for chapter 7 bankruptcy on May 10, 1993. On January 28,1994, the other guarantor, Leonard Ginsberg, became the subject of an involuntary chapter 7 bankruptcy action. On August 8, 1995, the FDIC assigned the note and mortgage to Drum Rock, Inc., which in turn assigned the note and mortgage to Robert Blatt, trustee, by deed dated August 16, 1995. Blatt, trustee, was thereafter substituted as the plaintiff in the mortgage foreclosure action. Title to the property vested in Blatt, trustee, by virtue of a certificate of foreclosure dated November 27, 1995, and recorded November 28, 1995. On April 1, 1998, Blatt, trustee, conveyed the property by quitclaim deed to [the defendant] ....

“The present action was filed on August 18, 1998. The plaintiff seeks to foreclose two tax liens on the property. The two liens arose from the tax lists of October 1, 1993, and October 1, 1994, respectively. Certificates continuing the two tax liens were filed on May 10,1995, and May 21, 1996, respectively. The defendant or its predecessors in interest made various payments on the outstanding taxes on the property. A March 7, 1996 payment in the amount of $45,558.78 was applied to the outstanding taxes, interest and charges from the 1989 and 1990 lists. A September 16, 1997 payment in the amount of $37,500 was applied to the outstanding taxes, interest and charges from the 1990 and 1991 lists. A February 27, 1998 payment in the amount of $50,000 was applied to the outstanding taxes, interest and charges from the 1991 and 1992 lists. Finally, a May 1, 1998 payment in the amount of $20,000 was applied to the outstanding taxes, interest and charges from the 1992 list and to a portion of the interest arising from the 1993 list. According to the plaintiffs affidavit of debt, there is still a total of $92,611.16 owing on the taxes, interest and fees arising from the 1993 and 1994 lists.”

The defendant posited six special defenses, all of which the court rejected. The court concluded that the tax liens arising from the 1993 and 1994 assessments were valid and rendered a judgment of foreclosure by sale for the plaintiff. The defendant now appeals, claiming that the court ruled improperly on the first, fifth and sixth special defenses.

“The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) AvalonBay Communities, Inc. v. Orange, 256 Conn. 557, 565, 775 A.2d 284 (2001). The facts in the present case are undisputed. The scope of our review is, therefore, plenary.

I

The defendant first claims that the court improperly rejected its sixth special defense, which alleged that the defendant had discharged its tax obligations for the years 1993 and 1994. The defendant claims that the court improperly found that payments it made were correctly applied to outstanding taxes assessed in the years 1989 to 1992 rather than to outstanding taxes assessed in the years 1993 and 1994. We decline to review this claim.

Paragraphs four and five of the first and second counts of the plaintiffs complaint alleged that the plaintiff properly filed and caused to be recorded in the land records a certificate of hen for taxes with interest, fees and charges thereon for the years 1993 and 1994, and that no part of those taxes had been paid. The defendant denied in part the plaintiffs allegations and pleaded in its sixth special defense that the “[defendant made payments of taxes which when properly applied discharge any tax obligation plead by plaintiff.”

To resolve the defendant’s claim, we first must review the record to determine whether the evidence demonstrates that the defendant made payments in an amount sufficient to discharge the outstanding tax obligation on the property. Only then may we make a legal determination as to whether the defendant’s payments were correctly applied. Because of inconsistencies and ambiguities in the record, we are not able to make either assessment.

It is the appellant’s responsibility to provide an adequate record for review. Practice Book § 60-5. “The appellant shall determine whether the entire trial court record is complete, correct and otherwise perfected for presentation on appeal. . . .” Practice Book § 61-10. “Conclusions of the trial court cannot be reviewed where the appellant fails to establish through an adequate record that the trial court incorrectly applied the law or could not reasonably have concluded as it did .... An appellant’s utilization of the motion for articulation serves to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal. . . .

“Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court, either on its own or in response to a proper motion for articulation, any decision made by us respecting this claim would be entirely speculative.” (Citations omitted; internal quotation marks omitted.) Bradley v. Randall, 63 Conn. App. 92, 95-96, 772 A.2d 722 (2001).

The record in the present case is ambiguous. In its findings of fact, the court determined that title to the property had vested in Blatt, the defendant’s predecessor in interest, by virtue of a certificate of foreclosure dated November 27, 1995, and recorded November 28, 1995, and that Blatt had conveyed the property by quitclaim deed to the defendant on April 1,1998. The court also stated that “[t]he defendant or its predecessors in interest” had made four separate payments in the years 1996, 1997 and 1998 that were applied to outstanding taxes, interest and charges from the 1989, 1990, 1991, 1992 and 1993 lists. Notwithstanding the parties’ stipulation that the defendant had made all four payments, the court itself did not determine which, if any, payments were made by Blatt and which were made by the defendant. Although it might seem logical to conclude that the only payment made by the defendant was the May 1, 1998 payment of $20,000 after it took title to the property, there is no evidence in the record suggesting this was the case. Furthermore, the defendant in its brief makes the conflicting assertions that (1) “[p]ayments made by . . . Blatt . . . were applied to lists prior to the 1994” list and (2) all four payments were tendered by the defendant.

The defendant could have completed the record and eliminated the inherent ambiguity in the court’s findings of fact by way of a motion for articulation, but failed to do so. Accordingly, “[w]e . . . are left to surmise or speculate as to the existence of [the] factual predicate for the trial court’s rulings.” (Internal quotation marks omitted.) Id., 96. In light of the inadequate record before us, we decline to review this claim.

II

The defendant next claims that the court improperly rejected its fifth special defense, which alleged that the plaintiff had violated 12 U.S.C. § 1825 (b) (2) by filing a certificate to continue the tax hen for the 1993 taxes while the FDIC held a mortgage interest in the property as the receiver of Suffield Bank. We disagree.

Subsection (b) (2) of 12 U.S.C. § 1825 provides that “[n]o property of the [FDIC] shall be subject to levy, attachment, garnishment, foreclosure, or sale without the consent of the [FDIC], nor shall any involuntary lien attach to the property of the [FDIC].” In a recent case, 37 Huntington Street, H, LLC v. Hartford, 62 Conn. App. 586, 772 A.2d 633, cert. denied, 256 Conn. 914, 772 A.2d 1127 (2001), we held that the prohibition in 12 U.S.C. § 1825 (b) (2) against the attachment of municipal tax liens on property owned by the FDIC does not bar tax liens against property owned by a private entity where, as here, the FDIC’s property interest is that of a mortgagee rather than a fee holder. Id., 596. The defendant conceded at oral argument that 37 Huntington Street, H, LLC, is controlling with respect to this claim. In this regard, the defendant is correct. The claim must, therefore, fail.

III

The defendant finally claims that the court improperly rejected its first special defense, which alleged that the tax assessment and the filing of and attempted collection of the plaintiffs tax liens violated the automatic stay provisions of the Bankruptcy Code, 11 U.S.C. § 362 (a), because Schwartz, one of the two guarantors, had commenced a bankruptcy action before the liens were filed. We do not agree.

Practice Book § 10-70 (b) provides in relevant part: “When [a municipal tax lien] has been continued by certificate, the production in court of the certificate of lien, or a certified copy thereof, shall be prima facie evidence that all requirements of law for the assessment and collection of the tax or assessment secured by it, and for the making and filing of the certificate, have been duly and properly complied with. Any claimed informality, irregularity or invalidity ... in the lien filed, shall be matter of affirmative defense to be alleged and proved by the defendant.” Accordingly, the filing of the first special defense was proper.

The court rejected the first special defense on the ground that (1) the defendant offered no evidence showing that any property of the guarantors was subject to the tax liens at issue, (2) the defendant cited no case law for the proposition that a tax lien may not be filed against property subject to a mortgage when the mortgage guarantor has filed for bankruptcy, (3) the bankruptcy debtor did not have an ownership interest in the property and (4) the filing of the certificate to continue the tax lien did not constitute enforcement of a judgment.

Subdivision (4) of 11 U.S.C. § 362 (a) provides that an automatic stay is applicable to “any act to create, perfect, or enforce any lien against property of the estate . . . .” We agree with the court that because the guarantor did not have an ownership interest in the subject property and because the filing of the certificates did not constitute enforcement of a judgment, the automatic stay provision of 11 U.S.C. § 362 (a) did not invalidate the liens.

Furthermore, we have found no legal authority for the proposition that a tax lien may not be continued against property subject to a mortgage when the mortgage guarantor has filed for bankruptcy. The defendant relies on two cases to support this claim, In re St. Amant, 41 B.R. 156 (Bankr. D. Conn. 1984), and First Constitution Bank v. Flanders, Superior Court, judicial district of New Haven, Docket No. 910310164 (March 22, 1995) (14 Conn. L. Rptr. 218). In In re St. Amant, the United States Bankruptcy Court for the District of Connecticut concluded, pursuant to 11 U.S.C. § 362 (a), that the filing of a bankruptcy action following a judgment of strict foreclosure stayed the running of the law day. In re St. Amant, supra, 157. In Flanders, the Superior Court held that 11 U.S.C. § 362 (a) stayed the enforcement of a judgment obtained against the guarantor before the commencement of the bankruptcy action. First Constitution Bank v. Flanders, supra, 218. Both cases can be distinguished from the present case, however, because the fundamental issue in those cases was whether the filing of a bankruptcy action following a judgment of strict foreclosure stays the passing of the law day or enforcement of the judgment, whereas here the issue is whether the filing of a bankruptcy action stays the subsequent filing of a certificate to continue a tax lien in the absence of a judgment of strict foreclosure.

Moreover, the debtor in In re St. Amant was the owner of the subject property, not a guarantor; In re St. Amant, supra, 41 B.R. 157; and the Bankruptcy Court later refused to apply the In re St. Amant holding to guarantors because “[ujnlike the present case, the property subject to foreclosure in [In re St. Amant] was unquestionably owned by the debtor and therefore part of his estate . . . .” Federal Deposit Insurance Corp. v. Howard Shoreline Associates, 183 B.R. 33, 36 (Bankr. D. Conn. 1995). The Howard Shoreline Associates court expressly concluded that a guarantor’s “derivative interest in the property does not constitute a specific, personal interest which makes it part of his estate.” (Emphasis added.) Id.

The case law thus fails to support the defendant’s claim that the automatic stay provisions of the Bankruptcy Code prevent the filing of a tax hen against property subject to a mortgage where a mortgage guarantor has filed for bankruptcy. Accordingly, the court properly rejected the defendant’s first special defense.

The judgment is affirmed.

In this opinion the other judges concurred.

       The other defendant in this matter, Mark Canno, filed a disclosure of no defense on September 4, 1998, and is not a party to this appeal. We therefore refer in this opinion to the defendant New England National, LLC, as the defendant.

       That finding is contrary to the parties’ stipulation in which it was stated that the defendant was the party that made the lour payments on outstanding taxes in the years 1996, 1997 and 1998.

       When this court queried the defendant’s counsel at oral argument as to whether the defendant agreed that 37Huntington Street, H, LLC, is binding in view of our Supreme Court’s denial of the plaintiffs petition for certification for appeal in that case, counsel responded that “[i]t appears so.”

       The plaintiff did not begin its action to foreclose the liens until 1998.

       We recognize that Flanders expanded the principle adopted in In re St. Amant and applied it to guarantors, but we decline to apply that principle here because the present case, unlike Flanders, does not involve a judgment of strict foreclosure, and we are not required to follow the decision of a lower court. McDonald v. Rowe, 43 Conn. App. 39, 43, 682 A.2d 542 (1996). Furthermore, the Bankruptcy Code is federal law, and “we look to the federal courts for guidance in resolving issues of federal law.” Turner v. Frowein, 253 Conn. 312, 340, 752 A.2d 955 (2000).


author:
FLYNN, J.
      SCHALLER, J.,

text:
    STATE OF CONNECTICUT v. JOHN PALLADINO
    (AC 20940)
    Schaller, Flynn and Shea, Js.
    Argued September 28, 2001
    officially released May 14, 2002

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

      Theresa Anne Ferryman, assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, state’s attorney, for the appellee (state).
   Opinion

FLYNN, J.

The defendant, John Palladino, appeals from a judgment of conviction for the crime of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (5). The defendant claims, inter alia, that the trial court violated his sixth amendment right to confront and cross-examine the state’s principal witness (complainant) when the court withheld the complainant’s psychiatric records despite a full waiver of confidentiality. We agree, and further hold that the state has failed to establish the harmlessness of the violation. Thus, we reverse the judgment of conviction and remand the case for a new trial.

The defendant was a food services supervisor at York Correctional Institution in Niantic when the complainant and defendant first became acquainted. The complainant was assigned to this prison as a pretrial detainee who had been charged with murder. She met the defendant when she was assigned to work in the kitchen, where the defendant was a stockroom supervisor. The complainant was reassigned specifically to work in the stockroom under the defendant’s supervision after they “spoke about it and [decided that] it would be easier to pass notes and just basically talk.” After she was reassigned to work in the stockroom, the defendant began to have conversations with the complainant that were sexual in nature.

In January, 1998, prison officials interrogated the complainant after hearing that she was pregnant. At that time, she denied any sexual relationship with the defendant in written statements. Pregnancy tests were negative. Prison officials placed her in segregation, locking her in a cell for substantial periods of time, and questioned her further about the once suspected pregnancy. She finally signed a statement on March 8, 1998, in which she stated she had engaged in sexual relations with the defendant on five separate occasions.

The state brought charges of sexual assault in the second degree in violation of § 53a-71 (a) (5) against the defendant. The defendant pleaded not guilty and opted for a jury trial. At trial, the complainant testified as a witness for the state. On cross-examination, she admitted to a past medical diagnosis of multiple personality disorder, but claimed that it was a “misdiagnosis” because the effects of illegal drug abuse combined with facing a lengthy prison term had simply rendered her “completely a mess.” On the basis of reports indicating that she was “hearing voices” upon her admission to prison in September, 1997, defense counsel asked her whether she was schizophrenic. To this, the complainant initially adverted to her general explanation that she was “completely a mess.” Counsel considered this unresponsive and asked her again whether she remembered hearing voices. The complainant responded, “I don’t know,” and, “I don’t recall.” When confronted with a writing to refresh her memory, the complainant admitted, finally, “hearing voices,” but again attributed the phenomenon entirely to being “high” on illegal drugs, even while in prison.

Prior to trial, the defendant subpoenaed warden Eileen Higgins of York Correctional Institution, demanding both her presence on April 6, 2000, and that she bring with her the complainant’s “mental health file and records,” among other items. On the day to which the warden had been subpoenaed to appear, the attorney general filed a motion to quash the subpoena on her behalf, arguing that “records concerning inmates’ mental health treatment are privileged and may not be disclosed without the patient’s written consent.”

At a hearing concerning the motion to quash, the state agreed that it was in the complainant’s best interests to retain her own counsel on the matter of waiving her statutory right to confidentiality in her psychiatric records. Taking the state’s suggestion, the court contacted the public defender’s office to appoint independent counsel for the complainant on the matter of whether she wished to grant consent through a written waiver for the defendant to access her psychiatric records. Counsel for the state admitted that, as to her medical records, the complainant would be “capable of doing two different types of waiver. . . . One would be that she may have an interest in privacy such that she would want Your Honor to cull out only those matters that the court thinks [are] relevant and, [second] perhaps, she would be open to a complete disclosure.” The state took a more restrictive position with respect to her psychiatric records, requesting strict adherence to a procedure delineated in State v. Esposito, 192 Conn. 166, 179-80, 471 A.2d 949 (1984). The state claimed that the complainant could provide only a limited waiver, authorizing only the trial judge to review the records to determine if they contained material useful for impeachment. The defendant opposed this position, stating that “[i]f [the complainant is] willing to give up full waiver of those records, then I believe she is entitled to do that . . . .” The court agreed with the state, holding that “[General Statutes §] 52-146 makes it clear, as does the case law, D’Ambrosio, Esposito . . . there is a right beyond the right of the person involved as to why there is that privilege .... And I think all [the defendant] might be entitled to [would be a] preliminary waiver” authorizing only an in camera inspection of the records by the court. The court also suggested that the complainant’s counsel “explain” to the complainant that the consent would include only the in camera inspection.

We first review the circumstances surrounding the complainant’s waiving her right to confidentiality of her medical, psychiatric and psychological records. The defendant made it clear from the outset through his counsel that if the complainant “consents,” he did not believe there would be “any real need for in camera review.” Defense counsel later summarized his position as follows: “If she consents to me having her medical records, I believe they can just be turned over to me.” The court then appointed a public defender to advise and represent the complainant about this issue.

After consulting with the complainant, the public defender reported in open court that he had advised her on two issues. He stated: “One dealt with a potential claim for right against self-incrimination, but more importantly it was the issue about medical psychiatric records. I spent about ten or fifteen minutes with her. We’re satisfied that she understood what I was talking about. I explained to her that she did have a right to confidentiality. But she indicated to me that she felt comfortable with waiving that right; she felt comfortable with the medical and psychiatric records. And to that end, my office did prepare a waiver of confidentiality. I believe all parties have a copy of it.”

The public defender then filed with the court a written waiver signed by the complainant and read it into the record. It read in pertinent part as follows:

“I, [the complainant] . . . hereby waive any confidentiality I may have in any and all of my medical and/ or psychiatric/psychological records so that they may be used in a criminal court case, state versus John Palladino, at the New London judicial district court. I do this freely after consulting with and being advised by Bruce—Attorney Bruce A. Sturman of the office of the public defender. ...”

We conclude that the complainant, after receiving legal advice, waived the confidential privilege she had to object to the release and use by the defendant of any of her medical, psychological or psychiatric records in the course of the trial in New London Superior Court.

She did not limit the purposes for which these records might be used and therefore the written waiver can be considered a “general waiver.” See Cabrera v. Cabrera, 23 Conn. App. 330, 340, 580 A.2d 1227, cert. denied, 216 Conn. 828, 582 A.2d 205 (1990).

We next consider whether, in light of such a waiver and the pertinent statutes, the court still had some gate-keeping role to play in the release of these records. This issue concerns the construction of a statute, and our review of the trial court’s conclusions is plenary. Gartrell v. Dept. of Correction, 259 Conn. 29, 39, 787 A.2d 541 (2002).

The cases that the trial court referenced while refusing to surrender all of the complainant’s psychiatric records are factually inapposite to the case at bar because no waiver had occurred in them. In State v. Esposito, supra, 192 Conn. 179-80, our Supreme Court delineated a procedure designed to safeguard a witness’ rights in psychiatric records made confidential by § 52-146e et seq. It was this procedure that the trial court was striving to follow in denying the defendant access to the complainant’s records. However, Esposito and its progeny have dealt only with situations where the witness had not relinquished the privacy rights to confidentiality governed by § 52-146e, and the issue was joined as to whether a defendant’s constitutional right of confrontation under the sixth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut trumped such a statutory privilege. See, e.g., State v. Harris, 227 Conn. 751, 765-69, 631 A.2d 309 (1993).

Our Supreme Court has determined that an in camera inspection by a trial court of privileged records satisfied the state constitutional confrontation rights of a defendant. See id., 767-68. However, neither our Supreme Court nor this court has held that such an in camera review is necessary where a victim freely gives up any rights to confidentiality that she might otherwise have. See, e.g., State v. Olah, 60 Conn. App. 350, 353-54, 759 A.2d 548 (2000) (“privileged” material invokes in camera procedure). Indeed, § 52-146e embraces the policy that these rights to confidentiality are personal and may be waived by consent of the individual who enjoys the rights. See General Statutes § 52-146e (a), providing that the protections are not applicable in the event of “consent of the patient or his authorized representative.”

“The people of this state enjoy a broad privilege in the confidentiality of their psychiatric communications and records. See General Statutes §§ 52-146d and 52-146e.” State v. Rosado, 52 Conn. App. 408, 414, 726 A.2d 1177 (1999). They have the statutory right, nonetheless, to waive or give up that right by consent, so long as they do so knowingly, freely and voluntarily. State v. Tosté, 178 Conn. 626, 629-30, 424 A.2d 293 (1979). General Statutes § 52-146d (3) provides that “ ‘Consent’ means consent given in writing by the patient or his authorized representative . . . .” General Statutes § 52-146e (b) provides that any such consent “shall specify to what person or agency the information is to be disclosed and to what use it will be put.” The writing which the complainant signed adequately stated that “any and all” of the complainant’s medical psychiatric and psychological records could be used in the defendant’s Superior Court case in New London, satisfying the statute’s requirements for waiver. It is also clear from her attorney’s statements made on the subject in open court.

Where the state’s complaining witness has freely agreed to the use of her psychiatric records and the court has provided her with counsel who advised her in the matter, we conclude that there is no further initial gatekeeping role for the court. However, insofar as individual questions are subject to some proper objection at trial, the court can properly entertain them as they are made. The court improperly refused to release all of the psychiatric records to the defendant, which he had subpoenaed to court.

Our inquiry turns, therefore, to the impact of the trial court’s failure to surrender the psychiatric records to the defendant. As did our Supreme Court in State v. Slimskey, 257 Conn. 842, 779 A.2d 723 (2001), in making that impact analysis, we necessarily refer to some of the witness’ records to examine how they relate to the complainant’s ability to recall and relate back facts truthfully and accurately. We cannot decide the issue in a vacuum. The defendant’s claim is that the denial of access to these records violated his constitutional right to confront and cross-examine his accusers. See U.S. Const., amend. VI.

The sixth amendment to the United States constitution, as well as article first, § 8, of the constitution of Connecticut, guarantee “the right of an accused in a criminal prosecution to be confronted with the witnesses against him. . . . The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. The opponent demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct putting of questions and obtaining immediate answers.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Esposito, supra, 192 Conn. 178-79. “Although the confrontation right is not absolute and is subject to reasonable limitation; State v. Vitale, 197 Conn. 396, 401, 497 A.2d 956 (1985); there is, nevertheless, a minimum level of cross-examination that must be afforded to the defendant into matters affecting the reliability and credibility of the state’s witnesses. State v. Milum, 197 Conn. 602, 609, 500 A.2d 555 (1985).” State v. Slimskey, supra, 257 Conn. 858.

The “cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness.” Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). The right of a criminal defendant to impeach an adverse witness is constitutionally guaranteed. “In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” (Internal quotation marks omitted.) State v. Valentine, 240 Conn. 395, 407, 692 A.2d 727 (1997).

The reliability of a witness’ testimony is impacted by a wide range of issues, including the mental capacity of the witness at a sufficiently relevant time. See generally C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 7.19. “The capacity of a witness to observe, recollect and narrate an occurrence is a proper subject of inquiry on cross-examination. If as a, result of a mental condition such capacity has been substantially diminished, evidence of that condition before, at and after the occurrence and at the time of the trial, is ordinarily admissible for use by the trier in passing on the credibility of the witness.” (Emphasis in original; internal quotation marks omitted.) State v. Cardinal, 194 Conn. 114, 118-19, 478 A.2d 610 (1984).

Much of the improperly withheld psychiatric materials sought by the defendant in this case, which he had a right to examine, would have enabled him to impeach the reliability of the complainant, the state’s principal witness against him. The state observes that the defendant had an opportunity to cross-examine the complainant in the same general area covered by the materials, i.e., the complainant’s mental condition. While this point has its appeal, the difference between the cross-examination that was achieved and the cross-examination that could have been achieved with access to the materials appears to be more critical after our own in camera inspection of the materials.

Armed with the sixteen pages of psychiatric records that the trial court saw fit to turn over, the defendant did foray into the issue of mental incapacity due to diagnoses of schizophrenia, “blackouts” and “multiple personality disorder.” The complainant parried these concerns by responding that these diagnoses were incorrect, maintaining that these symptoms were all drug induced and isolated in occurrence. In fact, the complainant at first claimed not even to remember having reported “hearing voices” until her memory was “refreshed” by one page from the materials that were turned over. The complainant explained that she was simply “a complete mess” due to drug abuse and recent incarceration, which led to her “misdiagnosis.” In view of materials to which the defendant did have access, pressing further might have been viewed as repetitive, harassment or futile, even if allowed by the court.

With the at least thirty-seven pages of records that were improperly withheld, however, the defendant could have impeached the complainant’s superficial explanations. The following are illustrative but not exhaustive of how the defendant’s cross-examination was harmed. In a mental health assessment form improperly withheld from the defense, a clinician indicates that the schizophrenia was diagnosed in the patient’s history as being “chronic.” With this, the defendant would have had a good faith basis to challenge the complainant’s claim that the episode of “hearing voices” was an isolated affair, attributable to her recent drug use and incarceration.

Beyond challenging the complainant’s explanation of her supposedly isolated diagnoses of schizophrenia, blackouts and multiple personality disorder, the defendant could have explored entirely new areas of mental incapacity had the at least thirty-seven pages been properly turned over. In a mental health assessment form dated September 25, 1997, among thirty-seven pages of documents that were not turned over, a clinician notes “Dissociative Disorder.” The clinician then recommends “evaluat[ion of the complainant] for Dissociative Disorder.” Nowhere in the materials turned over to the defense was there any such report. In fact, a subsequent notation indicates, “Not placed on clinic list to date.” The defendant had no basis to inquire into this disorder on cross-examination without the use of this form. According to the American Psychological Association’s Diagnostic and Statistical Manual of Mental Disorders (9th Ed. 2001) p. 477, “The essential feature of the Dissociative Disorders is the disruption in the usually integrated functions of consciousness, memory, identity, or perception of the environment.” A “dissociative disorder not otherwise specified is [indicated when there is] a dissociative symptom, but [it does not] meet the criteria for any specific dissociative disorder. Id. It is exactly the witness’ memory and perception of her environment on a date veiy near the time of this report that were at issue on cross-examination. Thus, the defendant was entitled to knowledge of this potential disorder as it possibly affected the reliability of the witness’ testimony.

Another mental health screening form withheld from the defendant indicates other medications that the complainant was taking, including “CP2, Prolixin, [and] Cogentin.” The latest edition of the Physicians’ Desk Reference (56th Ed. 2002) states: “Warnings . . . Cogentin may impair mental and/or physical abilities required for the performance of hazardous tasks. . . . Mental confusion and excitement may occur with large dosages, or in susceptible patients. Visual hallucinations have been reported occasionally. Furthermore, in the treatment of . . . patients with mental disorders, occasionally there may be intensification of symptoms. ” Id., supra, p. 2055. Cross-examination about the dosage and side effects of this drug at the time of the incident, afterward and at trial were not even possible because the defendant did not have this report indicating that it had been administered.

As yet another example, a mental status evaluation form dated March 22, 1999, just days before trial, indicates that the complainant’s memory is “impaired” and that her judgment is “fair” rather than “good.” In a separate mental health treatment plan dated December 29,1997, the complainant is reported to have “impaired cognition.” Again, the complainant’s cognition was at issue on cross-examination, and the defendant could have benefited from this material.

The state suggests a standard of review for the harm related to this error that is applicable to evidentiary rulings by a trial court, namely an abuse of discretion standard. The state considers as dispositive our Supreme Court’s determination in State v. Storlazzi, 191 Conn. 453, 459, 464 A.2d 829 (1983), that the decision to grant or deny access to privileged psychiatric records was to be left to the discretion of the trial court, “[a]s in the case of admissibility of such records . . . .” This standard is not applicable in this case, where, again, the complainant has consented to waive her confidentiality privilege as to the records.

After carefully inspecting the exhibits that were withheld from the defendant, we conclude that a constitutional violation has occurred and that the state has not sustained its burden to establish that the violation was harmless beyond any reasonable doubt. Cf. State v. Slimskey, supra, 257 Conn. 858-59. In Slimskey, our Supreme Court set forth considerations that led it to the conclusion that a constitutional violation had occurred in the failure to relinquish psychiatric records to a defendant for impeachment purposes. Chief among these was the observation that the withheld material was “relevant to and probative of the [complainant’s] ability to comprehend, to know and to relate the truth [and] [a]s a consequence, the defendant had no opportunity to elicit [such] evidence,” which, with proper trial court action, would have been elicited on cross-examination. Id. The withheld material in the case before us plainly implicates the complainant’s faculties of memory. This material, as in Slimskey, is “especially probative” and there was “no other available means of inquiry” into the deficiencies in reliability that this impeachment material raises. As a result, a constitutional violation has occurred and the state bears the burden to establish that the violation was harmless beyond any reasonable doubt. Id., 859.

The Slimskey court considered several factors in determining that a constitutional error in failing to release psychiatric records was not harmless in that case. We turn to analyze these factors and relate the evidence to each of them in series.

First, we consider the “importance of the witness’ testimony in the prosecution’s case . . . .” (Internal quotation marks omitted.) Id. In the present case, the trial court recognized the crucial nature of the testimony of the complainant, who served as the state’s principal witness. The court observed that “[the defendant] . . . has the rights to confrontation and to impeach,” “particularly here in a case where it is a one-on-one, so to speak, and I hope that term is understood in the sense that ... it is a complaining witness alleging something that would have happened in a private setting as I understand the allegations here.” We agree with the trial court’s assessment of the importance of the complainant’s testimony. The state relied heavily on this witness in making its case. Outside of the complainant’s testimony and prior statements, the state did not have evidence to meet the elements of the crime charged. The state did not introduce any physical evidence of the alleged crime. The state did not have semen evidence and the complainant’s pregnancy tests were negative.

The Slimskey court also looked to whether the damaging potential of the cross-examination which could have been developed was merely “cumulative” in the context of the remaining evidence. Id. We conclude that it would not have been cumulative. For example, lack of certain reports withheld made it impossible to adequately impeach the witness’ testimony that her schizophrenia was “chronic” and not simply related to drug use which had ended.

The Slimskey court also looked to the presence or absence of independent evidence “corroborating . . . the testimony of the witness on material points . . . .” (Internal quotation marks omitted.) Id. In this case, statements taken from the complainant both corroborated and contradicted her testimony, since she initially denied that the sexual encounters had taken place. Thus, her testimony and its reliability were of utmost importance at trial.

Slimskey also considered the “extent of cross-examination otherwise permitted . . . .” (Internal quotation marks omitted.) Id. As discussed previously, the defendant was restricted in his line of questioning from impeaching the complainant’s explanation of her diagnosis of schizophrenia. She claimed that an episode of “hearing voices” was attributable to drug use only and that she was “misdiagnos[ed].” With the impeachment material that indicated that this was actually a “chronic” condition, the cross-examination could have challenged the complainant’s assertion that it was an isolated incident. Without the material, any continued inquiry would have been far less effective. New lines of impeachment were also foreclosed in the absence of the withheld material. Documents indicating that the complainant suffered from dissociative disorder, “impaired” memory and cognition, and “fair” judgment, were withheld. Nor did the defense have access to material indicating that the complainant was taking Cogentin, a drug that can impact mental capacity. Thus, the defendant’s actual cross-examination was greatly limited in comparison to the cross-examination that would have been possible with the withheld impeachment material.

Finally, we consider the “overall strength of the prosecution’s case.” Id. For the same reasons relating to the importance of the complainant’s testimony, the state’s case was nonexistent in the absence of the complainant’s testimony and prior statements.

For all of these reasons, we hold that the defendant’s constitutional right to confrontation was harmfully violated by the excessive restriction of access to impeachment material.

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

In this opinion SHEA, J., concurred.

SCHALLER, J.,

concurring in part and dissenting in part. I agree that the judgment of conviction must be reversed and the case remanded for a new trial because the defendant improperly was deprived of an opportunity to have access to the complainant’s psychiatric records. I write separately, however, because I do not agree with the majority’s analysis that leads to this conclusion. I also believe that in light of the procedural issues that may arise in the new trial, it is both unnecessary and inappropriate for this court to discuss the complainant’s records in detail.

I conclude, as does the majority, that General Statutes § 52-146e and the confidential protection it offers, does not apply once a party who is protected by the statute voluntarily and affirmatively discloses a protected record. The privileged protection afforded to the complainant’s records under § 52-146e dissolved in the present case once she agreed to disclose fully her treatment records and waived her right to keep them confidential.

I reach this conclusion as a matter of plenary review of § 52-146e (a) and based on our well established rules of statutory interpretation. Contrary to the majority’s approach, I believe that it is crucial to begin the analysis with a discussion of § 52-146e because the applicability of the statute is a threshold matter in the present case.

Having reached the predicate conclusion that § 52-146e does not apply in this case, I further conclude, as does the majority, that because the records no longer were confidential or protected as such, the trial court had no authority to invoke its “gatekeeping” function in which it performs an in camera review of the confidential records and determines whether they should be disclosed to the party seeking them. Because an in camera review was not required, the court had no discretion to review or withhold the documents. Under these circumstances, State v. Esposito, 192 Conn. 166, 471 A.2d 949 (1984), and its progeny do not apply. As soon as the waiver was given, the defendant was entitled to disclosure of the records without any discretionary assessment or restriction by the court.

I do not agree that the decision as to whether the in camera review process applies in this case is an “issue [that] concerns the construction of a statute,” as the majority asserts. I believe the construction of the statute is a predicate conclusion, as previously discussed, because if the statute does not apply, the court has no authority to perform an in camera review. Additionally, § 52-146e itself does not require an in camera review, so a discussion of the statute in this regard is inappropriate. The in camera review process is a judicial construct, created to ensure that the statutory protections are met. The majority’s discussion of § 52-146e in the context of the in camera review process is not appropriate. The decision as to whether an in camera review is necessary relies on the predicate decision as to whether the statute affords protection.

As the majority notes, the next step is to evaluate the impact of the nondisclosure. I believe that we should apply our well settled harmful error analysis for sixth amendment claims in which the appellant asserts that he was denied his right to confront and to cross-examine a witness against him. See State v. Slimskey, 257 Conn. 842, 859, 779 A.2d 723 (2001). Because the restriction that occurred implicates the defendant’s constitutional right to impeach and to discredit a witness, whether this impropriety warrants a new trial depends on whether the state can demonstrate harmlessness beyond a reasonable doubt. See State v. Rolon, 257 Conn. 156, 173-74, 777 A.2d 604 (2001).

I would conclude, on the basis of our in camera review of the psychiatric records, that the state has failed to make such a showing. The records contain material that could be used by the defendant for impeachment purposes. Although the defendant did exercise his right of cross-examination of the complainant concerning her mental condition, he is entitled to the opportunity to do so after having access to the materials in question.

I disagree with the majority’s detailed discussion of the records. It is not necessary or appropriate to discuss our opinion concerning what our own in camera review of the records revealed and how the records could be used by the defendant in the course of a trial. Such discussion is not necessary because, based on my interpretation of § 52-146e, the initial in camera review should not have been conducted at all. Our opinion concerning the relevance of the records, as opposed to that of the trial court, is immaterial. Apart from that consideration, we should not reveal the details of the records or suggest how they could be used to present a defense in this case.

Nor is that discussion appropriate. The complainant will undoubtedly be given the opportunity to decide whether to consent to disclosure of the confidential records again at the time of the new trial. Although the complainant did consent to disclosure at the first trial and may consent again, that eventuality cannot be predicted with certainty. See State v. Olah, 60 Conn. App. 350, 355, 759 A.2d 548 (2000). Should she decide not to do so at the new trial, an in camera review with its pertinent waiver procedures may be necessary. See id.; see also State v. Slimskey, supra, 257 Conn. 855-56 (discussing in camera review procedure). Should that be the case, the complainant may decide to maintain the confidential status of her records. See State v. Olah, supra, 355. The majority’s discussion of the contents of the records, accordingly, details records that, ultimately, may not be disclosed at all. Even if she does consent for purposes of a new trial, I believe that we should neither speculate about how the records may be used nor suggest ways in which they could be used.

There are compelling reasons why we should not expose the complainant’s psychiatric records to discussion and analysis in our opinion. For all the foregoing reasons, I respectfully concur in the result reached by the majority and dissent with regard to its discussion of the records.

       General Statutes § 53a-71 (a) provides that a “person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and ... (5) such other person is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over such other person . . . .”

       The defendant raised four issues on appeal. Because the first issue is dispositive, we need not reach the remaining three.

        State v. D’Ambrosio, 212 Conn. 50, 561 A.2d 422 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990).

       We note that the complainant issued two additional written waivers to the defendant and to the state. These waivers indicated a waiver of “any confidentiality in my psychiatric records that [the trial court] has reviewed and agreed to turn over to” the prosecution or the defense. They apparently were executed after the court determined that it had an independent gate-keeping role even after the person whose records these were agreed to their release. We conclude that her attorney’s description of her complete nonopposition to a full release indicates that the full waiver of confidentiality as to all of her records for use in the Superior Court trial, regardless of whether the trial court had decided to relinquish them, indicates the larger scope of her written consent under General Statutes § 52-146e (a). The state has taken no issue with this conclusion in the present appeal and, thus, any such issue is not before us.

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right to ... be confronted with the witnesses against him . . . .”

       It should be noted that neither the defendant nor the state has yet viewed these materials, making more fact specific arguments by either parly impossible.

         Multiple personality disorder is a related, but distinct disorder with more specific symptoms. Diagnostic and Statistical Manual of Mental Disorders, supra, p. 477.

       In its brief, the state contended that “[e]ven if the trial court’s reliance on a societal interest in the confidentiality of mental health records was misplaced, the in camera review amounted to no more than a preliminary finding of relevance .... The mere fact that the [complainant] did not object to disclosure was not determinative of the relevance or admissibility of the material.” The state notes that the general standard of review for a trial court’s decision to withhold privileged psychiatric records of an adverse witness from a criminal defendant, as with relevance rulings, is the “abuse of discretion” standard.


author: MIHALAKOS, J.

text:
    STATE OF CONNECTICUT v. WALBUR GONZALEZ
    (AC 20764)
    Mihalakos, Dranginis and Hennessy, Js.
    Argued January 10
    officially released May 14, 2002

      Michael T. Morley, law student intern, with whom was Glenn W. Falk, special public defender, for the appellant (defendant).

      Mitchell S. Brody, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, Warren Maxwell, senior assistant state’s attorney, and David Zagaja, assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Waibur Gonzalez, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit murder in violation of General Statutes §§ 53U-48 and 53a-54a. On appeal, the defendant claims that (1) there was insufficient evidence to support the conviction of conspiracy to commit murder, (2) the trial court impermissibly bolstered the prosecution’s case and deprived the defendant of a fair trial by making several crucial findings of fact in the charge to the jury, and (3) the court impermissibly denied the defendant the presumption of innocence and shifted the burden of proof by informing the jury that he could not offer an alibi defense. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On July 13, 1994, the defendant was driving a blue Buick automobile with an individual named “Billy” in the front passenger seat and Delcy Dullary in the backseat of the vehicle. The defendant stopped for a red light at the intersection of Whitney Street and Capitol Avenue in Hartford. While driving a red car, James Girven approached the same intersection and stopped next to the Buick. Billy retrieved a rifle hidden under the passenger seat and began shooting at Girven. Girven drove away, and the defendant followed with Billy and Dullary still in the Buick. A chase ensued during which the vehicles were traveling at speeds up to ninety miles per hour.

The chase came to an end when Girven’s car smashed into a bridge abutment and the Buick crashed into the red car. Billy exited the Buick and approached the red car while the defendant and Dullary remained next to the Buick. Billy then fired several shots at Girven, killing him. The three men fled from the scene.

On December 23, 1996, the defendant was arrested in Puerto Rico pursuant to an arrest warrant and was extradited to Connecticut. On March 27,1997, pursuant to Practice Book § 763, now § 40-21, the state filed a demand for alibi and a motion for compliance, to which the defendant did not respond. Thereafter, in a long form information, the defendant was charged with murder as an accessory and conspiracy to commit murder. The defendant’s trial began on December 8, 1999. After the state presented its case-in-chief, the defendant moved for judgment of acquittal, which the court denied. On December 22,1999, the jury found the defendant guilty of conspiracy to commit murder. The court declared a mistrial on the accessory count. On February 16, 2000, the defendant received a total effective sentence of seventeen years imprisonment. Additional facts and procedural history will be provided as necessary.

I

The defendant first claims that the evidence presented at trial was legally insufficient to support the conviction of conspiracy to commit murder. Specifically, the defendant argues that because his cooperation alone is insufficient to support the inference of an agreement, there could be no conspiracy. We are not persuaded.

“Our standard of review of sufficiency of evidence claims is well settled. In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Jackson, 257 Conn. 198, 204-205, 777 A.2d 591 (2001).

In addition, “[t]here is no distinction between direct and circumstantial evidence so far as probative force is concerned .... Indeed, [cjircumstantial evidence . . . may be more certain, satisfying and persuasive than direct evidence.” (Citation omitted; internal quotation marks omitted.) Id., 206. Therefore, “the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence.” (Internal quotation marks omitted.) Stale v. Crump, 43 Conn. App. 252, 256, 683 A.2d 402, cert. denied, 239 Conn. 941, 684 A.2d 712 (1996). “Our inquiry into whether the evidence in the record would support a finding of guilt beyond a reasonable doubt does not require us to ask if we believe that the evidence established guilt beyond a reasonable doubt, but rather if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original; internal quotation marks omitted.) Id.

“To prove the crime of conspiracy, in violation of § 53a-48, the state must establish beyond a reasonable doubt that an agreement existed between two or more persons to engage in conduct constituting a crime and that subsequent to the agreement one of the conspirators performed an overt act in furtherance of the conspiracy.” (Internal quotation marks omitted.) State v. Forde, 52 Conn. App. 159, 167-68, 726 A.2d 132, cert. denied, 248 Conn. 918, 734 A.2d 567 (1999). “The existence of a formal agreement between the parties need not be proved. It is sufficient to show that they are knowingly engaged in a mutual plan to do a forbidden act. . . . Because of the secret nature of a conspiracy, a conviction is usually based on circumstantial evidence. . . . The state need not prove that the defendant and a coconspirator shook hands, whispered in each other’s ear, signed papers, or used any magic words such as we have an agreement.” (Citations omitted; internal quotation marks omitted.) State v. Crump, supra, 43 Conn. App. 258.

“Furthermore, [t]he size of a defendant’s role does not determine whether that person may be convicted of conspiracy charges. Rather, what is important is whether the defendant willfully participated in the activities of the conspiracy with knowledge of its illegal ends. . . . Participation in a single act in furtherance of the conspiracy is enough to sustain a finding of knowing participation.” (Emphasis added; internal quotation marks omitted.) State v. Forde, supra, 52 Conn. App. 168.

Our review of the record discloses that there was sufficient evidence to allow the jury to conclude that the state proved, beyond a reasonable doubt, that the defendant and Billy conspired to kill the victim. Billy and the defendant were members of allied gangs when they encountered the victim, who was a member of a rival gang. The defendant watched Billy retrieve the gun and begin shooting. It was the defendant who drove the Buick faster to catch up to Girven while Billy continually fired the gun at Girven’s car. In addition, Stanley Wasilewski and Paul Sherokow, detectives with the Hartford police department, both testified that when they arrested the defendant in Puerto Rico, he admitted that he was driving the Buick. From this evidence, the jury reasonably could have inferred that the defendant and Billy agreed to kill the victim. With Billy as the shooter and the defendant as the driver, the two worked in concert to accomplish this goal. Viewing this evidence in the light most favorable to sustaining the verdict, we conclude that the jury reasonably could have concluded that the evidence established beyond a reasonable doubt that the defendant was guilty of conspiracy to commit murder.

II

The defendant’s remaining arguments focus on the court’s charge to the jury. He claims that the court improperly (1) made factual findings in the charge, (2) bolstered the credibility of the state’s key witness and (3) informed the jury that he could not offer an alibi defense. We will address each claim in turn.

As a preliminary matter, the defendant concedes that he did not properly preserve these claims for appeal by taking exception to the charge as given. He seeks review under the doctrine set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). He argues that based on the improper jury instruction, he was denied due process of law as guaranteed by the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. We review the defendant’s claims pursuant to Golding because an adequate record exists and he alleges a constitutional violation. See State v. Parker, 67 Conn. App. 351, 354, 786 A.2d 1252 (2001). The defendant, however, cannot prevail on any of his claims regarding the jury charge under the third prong of Golding because he cannot demonstrate that a constitutional violation clearly exists that clearly deprived him of a fair trial.

“When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper. . . . [I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled.” (Citation omitted; internal quotation marks omitted.) State v. Rodriguez, 63 Conn. App. 529, 534, 777 A.2d 704, cert. denied, 256 Conn. 936, 776 A.2d 1151 (2001). Furthermore, “[u]nder prong three of Golding, a challenged jury instruction constitutes a clear constitutional violation that clearly deprives a defendant of a fair trial if it is found reasonably possible that the jury was misled by the court’s instruction.” (Internal quotation marks omitted.) State v. Orta, 66 Conn. App. 783, 795, 786 A.2d 504 (2001), cert. denied, 259 Conn. 907, 789 A.2d 997 (2002).

A

The defendant’s first claim regarding the jury instructions is that the court improperly made factual findings. First, he argues that because the court used the word “murder” immediately after “homicide” and without qualification, the court explicitly declared to the jury that the victim’s death was a murder. Next he argues that because the court stated that the defendant was in Puerto Rico “shortly” after the murder, the court impermissibly found that the defendant was actually in Connecticut at the time of the murder. We are not persuaded.

First, with regard to the court’s use of the word “murder,” the defendant argues that State v. Echols, 170 Conn. 11, 364 A.2d 225 (1975), supports his contention that the court’s statement was a judicial affirmation of a critical part of the state’s case. This argument is misplaced. In Echols, the trial court made an improper comment during the cross-examination of one of the state’s witnesses. Our Supreme Court concluded that the comment constituted prejudicial error. Id., 16. In the present case, the defendant challenges a single word used by the court during the jury instructions. We cannot review the comment by the court in isolation from the remainder of the jury charge as the defendant now argues. See State v. Burton, 258 Conn. 153, 161, 778 A.2d 955 (2001). Thus, Echols is inapposite to the present case. Further, because the issue of whether the shooting of the victim constituted murder was virtually uncontested at trial, the court’s statement appropriately diverted the jury’s attention from the murder issue to the key issue in the trial, i.e., whether the defendant was the driver of the Buick. The court also did not withdraw from the jury the issue of whether the killing of the victim was murder. The court instructed the jury on the elements of conspiracy to commit murder and told the jury that the state was required to prove beyond a reasonable doubt that the defendant intended to cause the death of the victim. Under these circumstances, we cannot conclude that the court’s use of the word “murder” during the jury instructions deprived the defendant of a fair trial. See State v. Collette, 199 Conn. 308, 318, 507 A.2d 99 (1986).

Next, the defendant argues that the court asserted as a matter of undisputed fact that the defendant left the country “shortly” after the homicide. “A trial court has broad discretion to comment on the evidence adduced in a criminal trial. ... A trial court often has not only the right, but also the duty to comment on the evidence. . . . The purpose of marshaling the evidence, a more elaborate manner of judicial commentary, is to provide a fair summary of the evidence, and nothing more; to attain that purpose, the [trial] judge must show strict impartiality. ... To avoid the danger of improper influence on the jury, a recitation of the evidence should not be so drawn as to direct the attention of the jury too prominently to the facts in the testimony on one side of the case, while sinking out of view, or passing lightly over, portions of the testimony on the other side, which deserve equal attention.” (Internal quotation marks omitted.) State v. Dixon, 62 Conn. App. 643, 647-48, 772 A.2d 166 (2001).

Again, the defendant appears to ask this court to review the court’s comments in isolation. This we will not do. During its instruction on flight, as evidence of consciousness of guilt, the court instructed the jury that there was evidence that the defendant left Hartford and that it was “shortly after the homicide.” See footnote 7. In the very next sentence, the court summarized the defendant’s argument that the trip to Puerto Rico was not evidence of his guilt, but he, in fact, went to visit and care for his ailing grandmother.

In addition, there was ample evidence in the record that the defendant was in Hartford at the time of the murder. Dullary identified the defendant as the driver of the Buick. Detectives Wasilewski and Sherokow both testified that the defendant admitted to being the driver of the Buick. Furthermore, the defendant’s own testimony does not refute the court’s characterization of the timing. The defendant testified that he went to Puerto Rico sometime in July, 1994. He could not remember the specific date. In addition, the defendant’s mother testified that he traveled to Puerto Rico with her in mid-July, 1994. The murder occurred on July 13, 1994. The evidence presented by the defendant himself supports the inference that the trip was shortly after the homicide.

In addition to the foregoing, the court instructed the jury that it was the sole judge of the facts, that the jury’s own recollection of the evidence must control its factual determinations and that the jury should make factual determinations independent of the court’s determinations. The court also instructed the jury regarding the elements of murder. We conclude, after reviewing the jury instruction, that it is not reasonably possible that the court’s commentary misled the jury. Therefore, the defendant cannot prevail on this claim under the third prong of Golding because he has failed to establish that a constitutional violation clearly exists and that it clearly deprived him of a fair trial.

B

The defendant next argues that the court improperly bolstered the state’s case by crediting as true the testimony of the prosecution’s key witness and undermined the defense theory of the case by removing the motive Dullary would have had for lying. We disagree.

It is fundamental that the court cannot vouch for the credibility of the state’s witnesses. See State v. Camerone, 8 Conn. App. 317, 325, 513 A.2d 718 (1986). “The influence of the trial judge on the jury is necessarily and properly of great weight . . . and jurors are ever watchful of the words that fall from him. . . . These admonitions and cautions are prompted by the truism that a jury has a natural tendency to look to the trial judge for guidance, and may find it even where it is not intended.” (Citations omitted; internal quotation marks omitted.) Id.

In the present case, there was no evidence in the record that would implicate Dullary in the crime. Dullary testified that he repeatedly asked the defendant to pull over so that he could exit the vehicle because he was not involved in the gang related hostilities. In addition, Dullary testified that he fled in a direction different from that of the defendant and Billy after the shooting. Dullary also testified that the next day the defendant and Billy threatened him if he told anyone what had happened. Moreover, defense counsel argued during his summation that avoiding arrest was Dullary’s motive for lying even though there was no evidence in the record that Dullary could be implicated in the crime.

The court’s statement that Dullary had never been arrested for Girven’s killing and that there was no evidence implicating him in the crime was a proper marshaling of the evidence. Furthermore, the court extensively instructed the jury regarding credibility, including that “[t]he credibility of witnesses and the weight to be given any evidence in the case are matters entirely and exclusively within your province. As stated, you may believe all, none or any part of any witness’ testimony.” The jury also had before it Dullary’s prior convictions and his prior inconsistent statement with which to weigh his credibility. Viewing the jury instruction in its entirety, we conclude that it was not reasonably possible that the court’s commentary misled the jury, and, therefore, the defendant’s claim fails under the third prong of Golding.

C

The defendant’s final claim is that the court improperly instructed the jury that he did not and could not raise an alibi defense. Specifically, the defendant argues that because the court stated that his denial of involvement was not an alibi, his defense was undermined. The state argues that the language at issue does distinguish between an “alibi” defense and the defendant’s assertion that he was not present during the crime. Our resolution of this claim turns on our interpretation of the rules of practice governing the notice requirements pertaining to the defense of alibi.

“The rules of statutory construction apply with equal force to Practice Book rules. . . . Where the meaning of a statute [or rule] is plain and unambiguous, the enactment speaks for itself and there is no occasion to construe it. Its unequivocal meaning is not subject to modification by way of construction. ... A cardinal rule of statutory construction is that where the words of a statute [or rule] are plain and unambiguous the intent of the [drafters] in enacting the statute [or rule] is to be derived from the words used. . . . Where the court is provided with a clearly written rule, it need look no further for interpretive guidance.” (Internal quotation marks omitted.) Krevis v. Bridgeport, 64 Conn. App. 176, 180-81, 779 A.2d 838, cert. granted on other grounds, 258 Conn. 939, 786 A.2d 426 (2001). “Finally, rules of criminal procedure, like penal statutes, are to be strictly construed to protect the fundamental constitutional right to liberty.” (Internal quotation marks omitted.) State v. Angell, 237 Conn. 321, 327, 677 A.2d 912 (1996).

The following provisions of our rules of practice are relevant to our disposition of this claim. Practice Book § 763, now § 40-21, requires the defendant to notify the state in writing of his intention to rely on an alibi defense, providing the names and addresses of the witnesses who will testify in support of the alibi defense. Practice Book § 735A, now § 40-5 (4), permits a court to sanction a noncompliant party as it deems appropriate, including “[prohibiting the noncomplying party from introducing specified evidence . . . .”

In the present case, the defendant never notified the state of his intention to rely on an alibi defense. The defendant argues, however, that there is nothing in the rules that prevents a defendant who fails to file such notice from asserting during his own testimony that he was not present at the crime scene. Because: § 735A, now § 40-5 (4), permits a court to prohibit “the noncomplying party from introducing specified evidence,” it is not clear from the language of the rule whether a court could prohibit a defendant from testifying himself as the defendant did here.

Because the rule does not specifically address whether the court may prohibit a defendant who has failed to satisfy the notice of alibi requirements from testifying that he was not at the scene of the crime, we must ascertain and give effect to the apparent intent of the drafters. “In seeking to discern that intent, we look to the words of the statute [or rule] itself, to the . . . history and circumstances surrounding its enactment, to the . . . policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) State v. Pare, 253 Conn. 611, 621, 755 A.2d 180 (2000).

Our review of the history of the rules of practice reveals that Practice Book § 735A, now § 40-5, does not limit the right of the defendant to testify in his own behalf. Practice Book § 766 provided: “Upon the failure of either party to comply with the requirements of Sec. 762, the judicial authority may exclude the testimony of any undisclosed witness offered by such party as to the defendant’s absence from or presence at the scene of the alleged offense. Sec. 762 shall not limit the right of the defendant to testify in his own behalf.” Practice Book § 766 was repealed because it was “unnecessary in light of . . . Sec. 735A [now § 40-5].” See Connecticut Law Journal, Vol. 56, May 9, 1995, p. 57C. We, therefore, conclude that the notice of alibi requirements of Practice Book § 763, now § 40-21, do not apply to a defendant who testifies on his own behalf.

With the foregoing principles in mind, we now address the defendant’s claim that the court improperly instructed the jury that he did not and could not assert an alibi defense. There is a clear distinction between an “alibi;” Practice Book § 763, now § 40-21; and “the right of the defendant to testify in his own behalf.” Practice Book § 766. The court did not hamper the defendant’s ability to testify that he was in Puerto Rico at the time of the murder. By first stating that the defendant testified that he was not there at all, then stating the defendant could not assert an alibi defense under the rules and then reiterating that the defendant testified that he was not involved and not there, the court properly instructed the jury regarding the law.

After reviewing the jury instructions in their entirety, we conclude that it is not reasonably possible that the jury was misled. The defendant has failed to establish that a constitutional violation clearly existed and that it clearly deprived him of a fair trial, and, therefore, he cannot prevail under the third prong of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”

       According to the state, Girven was a member of a street gang called 20 Love, Billy was a member of Nietas and the defendant was a member of the Latin Kings. Conflicts sometimes arose among the various gangs. At the time of the shooting, however, Nietas and the Latin Kings were allies and continued to have conflicts with 20 Love.

       On direct examination, Delcy Dullary, the passenger in the backseat of the Buick during the entire incident, testified in relevant part:
      “Q: Where did you get into the [Buick]?
      “A: The rear passenger seat.
      “Q: Okay. And did you see where [the defendant] got into the car?
      “A: Yeah. In the driver’s seat.
      “Q: And where did Billy get into the car?
      “A: Front passenger.
      “Q: And what happened after that point?
      “A: We went northbound down Chadwick and then Chadwick turn . . . into South Whitney and we got to the light at South Whitney and Capitol Avenue ....
      “Q: Were you stopped at the light there?
      “A: Yeah. And then one of them stated there goes a [rival gang member] right there.
      “Q: Do you remember who said that?
      “A: To be honest with you, right now I don’t remember which one of them said it; it’s been a long time. But one of them said there’s a [rival gang member] right there.
      “Q: And let me interrupt you. As that was said, what did you see?
      “A: I seen an—it was a red car at the light on Capitol Avenue facing eastbound with one person inside.
      * * *
      “Q: And then what happened?
      “A: And then Billy pulled out a gun and he took one shot at the car and the car sped off.

        “Q: Was that at that intersection?
      “A: Yes.
      “Q: Then what happened?
      “A: And the car took off ....
      “Q: Which one?
      “A: The car that they shot at took off and . . . we proceeded after them, and I asked them to stop and let me out and they just kept going.

        * ** ❖
      “Q: Who is they?
      “A: Billy fired a few times at [the car] and [the defendant] had the car floored going about eighty or ninety, and I was telling them to let me out and stop and they wouldn’t. They just told me to shut up and put my seat belt on, because we were going really fast.
      “Q: Were there only you three people in the car?
      “A: Yes.
      “Q: Do you remember where shots were actually fired along Whitney Street?
      “A: It was up and down the whole street, a few seconds in between each shot.
      “Q: Do you remember a total of how many shots were fired while the cars were moving?
      “A: About four or five.
      ❖ ❖ sf:
      “Q: . . . [W]hat did you say to them?
      “A: Oh. ... I told them I wasn’t in the bullshit, to let me out. And all Billy kept saying was pull up next to the car, pull up next to the car while Billy was shooting at it, and [the defendant] kept driving, saying, I can’t, I can’t.
      “Q: And how fast do you think the car was going?
      “A: At least eighty or ninety. It was floored.
      “Q: How close was the red car?
      “A: Probably twenty, thirty feet.”

       Under State v. Golding, supra, 213 Corm. 239-40, “a defendant can prevail on a claim of constitutional error not preserved at trial only if oil of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) “In the absence of any one of these conditions, the defendant’s claim will fail.” Id., 240.

       “Because the defendant has not briefed his claim separately under the Connecticut constitution, we limit our review to the United States constitution. We have repeatedly apprised litigants that we will not entertain a state constitutional claim unless the defendant has provided an independent analysis under the particular provisions of the state constitution at issue. . . . Without a separately briefed and analyzed state constitutional claim, we deem abandoned the defendant’s claim . . . .” (Internal quotation marks omitted.) State v. Jones, 65 Conn. App. 649, 652 n.6, 783 A.2d 511 (2001).

       The court’s instruction to the jury provided in relevant part: “It is up to you as the judges of the facts to decide whether statements or conduct of the defendant reflect consciousness of guilt and to consider such in your deliberations and in accordance with these instructions.
      “Now, as stated, flight when unexplained tends to prove consciousness of guilt. The flight of a person accused of a crime is a circumstance, which, when considered together with all the facts of the case, may justify a finding of the defendant’s guilt.
      “However, as I indicated, flight, if shown, is not conclusive. It is to be given the weight to which you the jury think it is entitled to under all of the circumstances.

        “And, of course, here there was evidence that the defendant left Hartford and went to Puerto Rico—an exact date was not stated. It was shortly after the homicide, murder of James Girven—and remained there until his arrest on these charges some two years and five months later.

      “There was also evidence offered by the defendant who—it was through [the] defendant and his mother—tending to explain his conduct by the defendant, that is, evidence regarding the illness of and subsequent death of the grandmother in Puerto Rico, his caring for the grandmother before her death and his having a girlfriend in Puerto Rico and later having a child by that woman. And, of course, there was the evidence of a driver’s license in his own name in Puerto Rico.
      “If you find that he was fleeing from this charge or because of this homicide, you may consider that as evidence of his consciousness of guilt. If you find that he was not fleeing as a result of this charge or as a result of the homicide, you should not consider it as evidence of consciousness of guilt.” (Emphasis added.)

       The court’s instruction to the jury provided in relevant part: “Mr. Dullary was never arrested regarding this crime, and, as the state pointed out, there was no evidence implicating him in this crime which would have provided any basis for an arrest.”

       We note that defense counsel, in closing argument, cannot rely upon facts not within the record. “While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or even to suggest an inference from, facts not in evidence, or to present matters which the jury have no right to consider. . . . State v. Pouncey, 241 Conn. 802, 811, 699 A.2d 901 (1997).” (Internal quotation marks omitted.) Durso v. Aquilino, 64 Conn. App. 469, 476, 780 A.2d 937 (2001). Furthermore, Dullary was not on trial.

       The court’s instruction to the jury provided in relevant part: “You also heard, of course, the testimony of the defendant, and he says that he was not there at all. He does not assert an alibi defense and, could not have done so under the rules, as was pointed out, but he testified that he was not involved at all in the incident, that he was not there.” (Emphasis added.)

       Practice Book § 763, now § 40-21, provides: “Upon written demand filed by the prosecuting authority stating the time, date, and place at which the alleged offense was committed, the defendant shall file within twenty days, or at such other time as the judicial authority may direct, a written notice of the defendant’s intention to offer a defense of alibi. Such notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom the defendant intends to rely to establish such alibi.” (Emphasis added.)