author: LAVERY, J.

text:
    STATE OF CONNECTICUT v. JOSE ROSADO
    (AC 17190)
    Lavery, Landau and Hennessy, Js.

      Argued September 18, 1998
    officially released March 30, 1999

      Thomas B. Pursell, special public defender, for the appellant (defendant).

      Bruce R. Lockwood, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Herbert E. Carlson, Jr., supervisory assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, J.

The defendant, Jose Rosado, appeals from the judgment of conviction, rendered after a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a) and assault in the third degree in violation of General Statutes § 53a-61 (a) (1). The defendant was sentenced to twenty years imprisonment and this appeal followed.

On appeal, the defendant claims that the trial court improperly (1) denied his motions for disclosure of the victim’s psychiatric records, (2) denied his April 9,1992 pretrial motion for disclosure of the names of the victim’s mental health care providers, (3) admitted into evidence a letter as evidence of his consciousness of guilt and (4) denied his motion to dismiss defense counsel. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim and the defendant resided together for approximately nine years and separated in 1989. On the evening of May 15, 1991, the defendant visited the victim at her apartment in Hartford. The defendant and the victim talked for several hours, and, when the victim asked the defendant to leave her apartment, he refused. The defendant then forcibly dragged the victim into a bedroom and threw her onto a mattress. While the defendant was binding the victim’s hands, she cried and begged him to stop. The defendant then raped the victim. He was arrested and subsequently convicted of the crimes charged. This appeal followed. Additional facts will be set forth where relevant to the issues on appeal.

I

The defendant first claims that the trial court improperly denied his motions for disclosure of the victim’s psychiatric records. Specifically, the defendant contends that the trial court’s failure to disclose this information violated his right to confrontation under the sixth amendment to the United States constitution and article first, § 8, of our state constitution, and his right to due process under the fourteenth amendment to the United States constitution and article first, § 8, of our state constitution. Additionally, he asks this court to overrule our Supreme Court’s decision in State v. Harris, 227 Conn. 751, 768-69, 631 A.2d 309 (1993). We are not persuaded by the defendant’s claims.

Additional facts are necessary to a resolution of these claims. On April 9, 1992, the defendant filed a pretrial motion for disclosure, petitioning the trial court to order the state to provide him with information concerning the victim’s psychiatric treatment. The defendant’s request for disclosure was predicated on his claim that he had accompanied the victim to several mental health facilities during the course of their nine year relationship. Although the trial court did not order the state to disclose that information, it informed the state that, on the basis of the information provided by the defendant, the state was entitled to ask the victim whether she had received psychiatric treatment. With the state’s assistance, the defendant ultimately subpoenaed the victim’s records from four mental health facilities. These records were sealed and turned over to the trial court.

On April 20, 1992, after the state had concluded its direct examination of the victim, the defendant petitioned the trial court for disclosure of the victim’s psychiatric records so that he could use this information to establish that the victim’s psychiatric condition affected her ability to observe, recall and narrate events at issue in the trial. The trial court denied the defendant’s request and asked him to proceed with his cross-examination of the victim.

Thereafter, outside the presence of the jury, the defendant attempted to prove that the victim’s psychiatric records contained information that was probative of her ability to observe, recall and narrate relevant events and, therefore, disclosure of those records was warranted. After the defendant concluded his offer of proof, the trial court observed that the state “had complied with [the court’s request for disclosure] and, as a result, the court has been furnished with reports from four different organizations.” After the trial court considered the testimony of the defendant and the victim and reviewed in camera the victim’s records from United Services and Hartford Hospital, it denied the defendant access to the victim’s records on the ground that they did not contain information relevant to the testimonial capacity of the victim. The trial court also denied the defendant’s request for an in camera review of the victim’s records from Norwich State Hospital and New Britain General Hospital because he did not establish a sufficient foundation to warrant in camera review.

On June 11, 1992, the defendant renewed this claim in his motion for a new trial. In denying the defendant’s motion, the trial court, having reviewed in camera the victim’s psychiatric records from United Services, Hartford Hospital and Norwich State Hospital, stated that “there was nothing in those records that would give the defense an opportunity to impeach her credibility or to test her ability to perceive, recollect or articulate.”

A

The defendant first claims that the trial court’s failure to disclose the victim’s psychiatric records violated his right to confrontation under the sixth amendment to the United States constitution and article first, § 8, of our state constitution. We disagree.

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. “A criminal defendant has a constitutional right to cross-examine state witnesses, however, which may include impeaching or discrediting them by attempting to reveal to the jury the witnesses’ biases, prejudices or ulterior motives, or facts bearing on the witnesses’ reliability, credibility, or sense of perception. . . . Thus, in some instances, a patient’s psychiatric privilege must give way to a criminal defendant’s constitutional right to reveal to the jury facts about a witness’ mental condition that may reasonably affect the witness’ credibility. . . . The defendant’s right of cross-examination does not, however, allow him to discredit and impeach in whatever way, and to whatever extent, the defense might wish. . . . [Our Supreme Court has] therefore directed trial courts to engage in a specific procedure designed to accommodate this inherent tension.” (Citations omitted; internal quotation marks omitted.) State v. D'Ambrosio, 212 Conn. 50, 55-57, 561 A.2d 422 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990).

“If, for the purposes of cross-examination, a defendant believes that certain privileged records would disclose information especially probative of a witness’ ability to comprehend, know or correctly relate the truth, he may, out of the jury’s presence, attempt to make a preliminary showing that there is a reasonable ground to believe that the failure to produce the records would likely impair his right to impeach the witness. State v. Pierson, [201 Conn. 211, 225, 514 A.2d 724 (1986), on appeal after remand, 208 Conn. 683, 546 A.2d 268 (1988), cert. denied, 489 U.S. 1016, 109 S. Ct. 1131, 103 L. Ed. 2d 193 (1989)]; State v. Esposito, 192 Conn. 166, 179, 471 A.2d 949 (1984).” (Internal quotation marks omitted.) State v. Pratt, 235 Conn. 595, 607, 669 A.2d 562 (1995). “If in the trial court’s judgment the defendant successfully makes this showing, the state must then obtain the witness’ permission for the court to inspect the records in camera. A witness’ refusal to consent to such an in camera inspection entitles the defendant to have the witness’ testimony stricken.” (Internal quotation marks omitted.) Id.

“Upon inspecting the records in camera, the trial court must determine whether the records are especially probative of the witness’ capacity to relate the truth or to observe, recollect and narrate relevant occurrences. ... If the court determines that the records are probative, the state must obtain the witness’ further waiver of his privilege concerning the relevant portions of the record for release to the defendant, or have the witness’ testimony stricken. If the court discovers no probative and impeaching material, the entire record of the proceeding must be sealed and preserved for possible appellate review. . . . Once the trial court has made its inspection, the court’s determination of a defendant’s access to the witness’ records lies in the court’s sound discretion, which we will not disturb unless abused.” (Internal quotation marks omitted.) State v. Howard, 221 Conn. 447, 457-58, 604 A.2d 1294 (1992).

1

On April 20, 1992, although the defendant did not satisfy the threshold requirement set forth in State v. Esposito, supra, 192 Conn. 179-80, the trial court nonetheless reviewed in camera, with the victim’s consent, psychiatric records from United Services and Hartford Hospital. The trial court denied the defendant’s request for access to those records. On that same date, the trial court also denied the defendant’s request for an in camera inspection of the victim’s records from Norwich State Hospital, but later, with the victim’s consent, it inspected those records. On June 11, 1992, the trial court denied the defendant’s posttrial motion for access to the records. In light of the victim’s testimony and the information that the defendant already possessed concerning the victim’s psychiatric treatment, the trial court determined that disclosure of those records was unwarranted because they did not contain additional information that was especially probative of the victim’s capacity to relate the truth or to observe, recollect and narrate relevant events. Having carefully examined the victim’s records from United Services, Hartford Hospital and Norwich State Hospital in light of the appropriate standard of review; see State v. Howard, supra, 221 Conn. 458; we conclude that the trial court did not abuse its discretion by denying the defendant’s request for access to those records.

2

On April 20, 1992, the trial court did not, however, review in camera the victim’s psychiatric records from New Britain General Hospital because the victim withheld her consent and the trial court determined that the defendant did not establish a sufficient foundation to warrant in camera review. The state concedes that it is unclear whether the trial court later examined those records in camera. Because it is unclear from the trial record whether the court later examined the New Britain records in camera, we must determine whether the defendant satisfied the threshold requirement for an in camera inspection of the records. If the defendant failed to satisfy that threshold requirement, his claim that the trial court should have disclosed the records would be unavailing.

“It is well settled in this state that before a criminal defendant may obtain an in camera inspection of a witness’ confidential records for purposes of impeachment, he or she must first demonstrate that ‘there is reasonable ground to believe that the failure to produce the information is likely to impair the defendant’s right of confrontation such that the witness’ direct testimony should be stricken.’ State v. Esposito, [supra, 192 Conn. 179].” State v. Bruno, 236 Conn. 514, 522-23, 673 A.2d 1117 (1996). “Where, as here, the witness’ records are sought for the purpose of obtaining evidence of a mental condition bearing on the witness’ testimonial capacity, we require the defendant... to adduce a factual basis from which the trial court may conclude that there is a reasonable ground to believe that the records will reveal that at any pertinent time [the witness’ mental problem] affected his testimonial capacity to a sufficient degree to warrant further inquiry.” (Internal quotation marks omitted.) Id., 523.

Our Supreme Court has “urged trial courts to permit the defendant a certain latitude in his attempt to make [the preliminary showing required to obtain an in camera inspection of confidential records] . . . .’’(Citation omitted; internal quotation marks omitted.) Id., 531. “While we are mindful that the defendant’s task to lay a foundation as to the likely relevance of records to which he is not privy is not any easy one, we are also mindful of the witness’ legitimate interest in maintaining, to the extent possible, the privacy of her confidential records.” Id., 531-32.

After a careful review of the trial record, we conclude that the defendant failed to satisfy the threshold requirement for an in camera inspection of the psychiatric records from New Britain General Hospital. Specifically, he failed to establish a sufficient foundation from which the trial court must necessarily have concluded that there was a reasonable ground to believe that the records from New Britain General Hospital would yield evidence useful to his impeachment of the victim. See id., 528. Our decision is based on (1) the information the state and defendant provided to the trial court concerning the age of these records, (2) the results of the trial court’s in camera inspection of the victim’s more recent records from United Services and Hartford Hospital and (3) the results of the trial court’s in camera review of the victim’s records from Norwich State Hospital.

First, “under our case law, there are two points at which a witness’ possible mental unsoundness is relevant: at or around the time of trial or of the incident about which he is to testify.” (Emphasis added; internal quotation marks omitted.) State v. Herring, 210 Conn. 78, 109, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989); see also State v. Kelly, 208 Conn. 365, 379-80, 545 A.2d 1048 (1988). In State v. Burak, 201 Conn. 517, 523, 518 A.2d 639 (1986), the defendant petitioned the trial court for review of a key witness’ privileged psychiatric records. During his offer of proof, the defendant offered evidence that the witness had received psychiatric treatment from approximately 1974 to 1975. Id., 521. The crime occurred in 1979 and the trial took place sometime thereafter. Our Supreme Court held: “[T]he defendant did not make the necessary preliminary showing that failure to produce the records was likely to impair his confrontation rights. ... No showing was made that the witness had a mental problem which affected his testimonial capacity at the time of the occurrence of the events in this case or at the time of the trial. . . . The only facts revealed during the defendant’s offer of proof on this issue were that the witness had received treatment from approximately 1974 to 1975. . . . This testimony did not indicate any inability on the part of the witness to recall or recount the events relating to the circumstances of [the victim’s] death [in 1979], . . . The defendant would apparently have us hold that the records of anyone who has ever received psychiatric treatment, for whatever purpose, are fair game for disclosure; this we decline to do.” (Citations omitted.) Id., 524-25.

In the present case, the crime occurred in 1991 and the trial took place in 1992. The state informed the trial court that, on the basis of information that it had obtained from the victim, the records from New Britain General Hospital dated from approximately the late 1970s. Although the defendant testified that the victim received treatment at this facility sometime during the course of his nine year relationship with her, which ended in 1989, he did not provide any specific information concerning the dates of her treatment. Moreover, there was no evidence that the records were contemporaneous with the date of the crime or trial. In the absence of any evidence that the records were contemporaneous with the date of the crime or trial, the decision in Burak establishes that an in camera inspection was not warranted.

Second, our conclusion derives additional support from the results of the trial court’s inspection of more recent psychiatric records from Hartford Hospital and United Services. The victim received psychiatric treatment at United Services between 1989 and 1992, and at Hartford Hospital between 1988 and 1992. Those records were contemporaneous with the crime, which occurred in 1991, and the trial, which took place in 1992. After having reviewed the victim’s records from United Services and Hartford Hospital, the trial court found that neither record contained additional information especially probative of the victim’s ability to observe, narrate and recall events at issue in the trial. If the contemporaneous records did not contain probative information, it is unlikely that the victim’s older psychiatric records from New Britain General Hospital contained additional, probative information.

Finally, our conclusion also derives support from the results of the trial court’s in camera inspection of the victim’s records from Norwich State Hospital. Sometime after April 20,1992, the trial court, with the victim’s consent, reviewed in camera her psychiatric records from Norwich State Hospital, where she had received treatment in 1976 and 1987. The trial court determined that those records did not contain information meriting disclosure for impeachment purposes.

The foregoing factors collectively establish that the defendant failed to satisfy the threshold requirement for an in camera inspection of the victim’s psychiatric records from New Britain General Hospital. Accordingly, his claim that the trial court should have disclosed those records is unavailing.

B

The defendant next claims that we should overrule our Supreme Court’s holding in State v. Harris, supra, 227 Conn. 768-69. Specifically, “[t]he defendant urges this court to reconsider [our Supreme Court’s] stance on this issue which limits inspection of privileged records to in camera inspection by the trial judge.” It is not, however, within our province to overrule a decision of our Supreme Court. State v. Oliver, 41 Conn. App. 139, 146, 674 A.2d 1359, cert. denied, 237 Conn. 920, 676 A.2d 1374 (1996). Accordingly, we decline the defendant’s invitation.

II

The defendant next claims that the trial court improperly denied his April 9, 1992 pretrial supplemental motion for disclosure of the names of the victim’s mental health care providers. Specifically, the defendant claims that (1) the trial court’s failure to order disclosure of that information deprived him of his right to confrontation under the sixth amendment to the United States constitution and article first, § 8, of our state constitution and (2) that pursuant to State v. Pierson, supra, 201 Conn. 228, the trial court should have conducted a voir dire of the psychiatric personnel who treated the victim to determine if they possessed relevant information concerning the victim’s testimonial capacity. We disagree.

A

The defendant first claims that the trial court improperly denied his pretrial supplemental motion for disclosure of the names of the victim’s mental health care providers, in violation of his right to confrontation under the federal and state constitutions. We disagree.

Additional facts are necessary to a resolution of this claim. On April 9, 1992, the defendant filed a pretrial motion for disclosure, asking the trial court “to order the [state] to provide [him] with . . . [t]he name and address of any psychiatrist, psychologist, social worker or therapist who” provided counseling or psychotherapy to the victim anytime prior to or subsequent to the date of the incident. As a basis for this request, the defendant claimed that he had accompanied the victim to several mental health facilities during the course of their relationship. The state objected to the defendant’s motion, claiming that it was uncertain whether it could legally compel the victim to disclose that information.

The trial court did not order the state to ask the victim for the information but informed the state that it could ask the victim whether she had received psychiatric treatment. With the state’s assistance, the defendant ultimately subpoenaed the victim’s psychiatric records from four institutions. Those records were sealed and turned over to the trial court. The defendant concedes that “[t]he records of such counseling are afforded confidentiality pursuant to . . . General Statutes § 52-146e.” The defendant points to no evidence in the record that the state possessed the information that he requested.

In our discussion of the defendant’s first claim, we demonstrated that our Supreme Court has established a specific procedure that the defendant must follow if he wants to obtain for impeachment purposes any information contained in the victim’s privileged psychiatric records. See State v. Pratt, supra, 235 Conn. 607-609; State v. Howard, supra, 221 Conn. 457-58. “The procedure reflects a deliberate and careful balancing of the defendant’s right to confrontation and cross-examination against the public policy in preserving confidentiality in such records.” State v. Pratt, supra, 607-608. Although the defendant claims that he “has to be provided with the names of and access to the actual providers,” precedent holds that the defendant cannot circumvent the established procedure by obtaining direct access to any information, including the names of mental health care providers, that is contained in the victim’s privileged psychiatric records.

In making his offer of proof on April 20, 1992, the defendant was afforded an opportunity to convince the trial court that he should gain access to the victim’s psychiatric records. The defendant neither cites, nor can we locate, any authority that requires the trial court to circumvent the foregoing procedure and to disclose directly to the defendant any information, including the names of mental health care providers, that is contained in the victim’s privileged psychiatric records to assist him in making the requisite showing. We conclude, therefore, that the defendant’s claim is without merit.

B

The defendant next claims, relying on State v. Pier-son, supra, 201 Conn. 228, that the trial court should have conducted a voir dire of the victim’s mental health care providers to determine if they possessed relevant information concerning the victim’s testimonial capacity. We disagree.

In Pierson, our Supreme Court held that “[t]he procedure we established in Esposito . . . for permitting the trial court, with the consent of the witness, to review in camera the records of psychiatric treatment that are before the court must be modified if a defendant is to have the same protection of his constitutional right of confrontation in respect to unrecorded communications made confidential by [General Statutes] § 52-146e. Where there is any reasonable basis in the evidence for believing that psychiatric personnel may have information relating to the mental condition of a witness that might affect his testimony, the court must conduct a voir dire of the person who may possess such information in order to discover whether it would be admissible. This preliminary inquiry may be conducted only with the consent of the witness sought to be impeached, but, unless such consent is forthcoming, the testimony of the witness must be stricken. The voir dire for the purpose of determining the existence of such impeaching evidence must be conducted in the courtroom in the presence of the defendant and his counsel, who shall be allowed to participate fully in the proceeding. ... If, after conducting such a voir dire, the court decides that some of the evidence elicited is admissible at trial, the defendant shall be permitted to use it, but the remaining confidential communications shall be sealed.” (Citations omitted; emphasis added.) State v. Pierson, supra, 201 Conn. 228.

The defendant’s reliance on Pierson is misplaced. ‘Pierson applies to situations in which there is a reasonable basis for the trial court to conclude that communications between the witness and the psychiatric personnel were not recorded and that those unrecorded communications may be relevant to the testimonial capacity of the witness.” State v. Boutwell, 18 Conn. App. 273, 278, 558 A.2d 244, cert. denied, 212 Conn. 803, 561 A.2d 945 (1989). The defendant satisfied neither of those requirements. There was no reasonable basis for the trial court to conclude that there were unrecorded communications between the victim and psychiatric personnel. The defendant presented no evidence as to the existence of any unrecorded communications. Moreover, the defendant offered no evidence of additional recorded communications between the victim and psychiatric personnel. In his motion for a new trial, the defendant claimed that the trial court did not possess all of the victim’s psychiatric records. The trial court responded that “[s]o far as the records are concerned, I do not know of any other records that were . . . not [made] available and counsel [for the defendant] has not put forward to the court any indication that the state in any way concealed or that [the victim] concealed any other records that were available.”

Additionally, because the trial court determined, after an in camera review, that the victim’s psychiatric records from United Services, Hartford Hospital and Norwich State Hospital did not contain information meriting disclosure, the trial court had no reasonable basis to believe that the psychiatric personnel who prepared these reports would have unrecorded information meriting disclosure. We conclude, therefore, that it was unnecessary for the trial court to conduct a voir dire examination of the psychiatric personnel who treated the victim.

Ill

The defendant next claims that the trial court improperly admitted into evidence a letter as evidence of his consciousness of guilt. Specifically, the defendant contends that the letter was inadmissible because the state did not establish that it was written by him or with his knowledge, consent or authorization, and the prejudicial impact of the letter outweighed its probative value. We disagree.

At trial, outside the presence of the jury, the state moved to introduce, as evidence of the defendant’s consciousness of guilt, a letter, written in English but not in the defendant’s handwriting, that urged the victim to move and not appear in court. The state contended that, although this letter was not written in the defendant’s handwriting, several factors established that it was written and mailed pursuant to the defendant’s authorization.

The state claimed that the letter had reiterated the contents of a recent telephone conversation between the victim and the defendant, in which the defendant had told the victim to move and not to disclose her new address so that court officials could not contact her. Moreover, the victim testified that, although the letter itself was not written in the defendant’s handwriting, it had arrived in an envelope that contained the defendant’s handwriting and art work. The art work and handwriting on the envelope were similar to that of several other letters and envelopes that the victim had received from the defendant while he was incarcerated. The victim testified that the defendant had taken art lessons while he was incarcerated. The defendant objected to the admission of the letter, arguing that it was inadmissible because the state did not establish that the letter was written by him or with his knowledge, consent or authorization. The trial court overruled the defendant’s objection and admitted the letter as evidence of the defendant’s consciousness of guilt.

“In a criminal trial, it is relevant to show the conduct of an accused, as well as any statement made by him subsequent to the alleged criminal act, which may fairly be inferred to have been influenced by the criminal act.” (Internal quotation marks omitted.) State v. Robinson, 227 Conn. 711, 729-30, 631 A.2d 288 (1993). Ornease law has repeatedly “approved the admission of threats against or attempted intimidation of witnesses as evidence of consciousness of guilt.” State v. Leecan, 198 Conn. 517, 534, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986). “The general rule is that threats against witnesses are not relevant and are thus inadmissible as evidence unless the defendant is linked in some way to the making of the threats.” (Internal quotation marks omitted.) State v. Robinson, supra, 730; see also State v. Brokaw, 181 Conn. 475, 478-79, 436 A.2d 6 (1980). u[T]he trial court is given broad discretion in determining the relevancy of evidence and its decision will not be disturbed absent a clear abuse of that discretion.” (Emphasis in original; internal quotation marks omitted.) State v. Perry, 48 Conn. App. 193, 200, 709 A.2d 564, cert. denied, 244 Conn. 931, 711 A.2d 729 (1998).

The trial court did not abuse its discretion by admitting the letter into evidence because there was sufficient information to establish that it had been written pursuant to the defendant’s consent or authorization. The handwriting and art work on the envelope were similar to that of several other letters and envelopes that the victim had received from the defendant. Moreover, the victim testified that the letter had reiterated the contents of a recent telephone conversation that she had had with the defendant.

The defendant also claims that the prejudicial impact of the letter outweighed its probative value and, therefore, it was inadmissible. “[I]f evidence of threats that indicate consciousness of guilt is sought to be admitted, [bjefore [such] evidence is allowed to be given . . . the court must also consider whether its prejudicial tendency outweighs its probative value.” (Internal quotation marks omitted.) State v. Robinson, supra, 227 Conn. 730. “Because of the difficulties inherent in [the probative-prejudicial] balancing process, the trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.” (Internal quotation marks omitted.) State v. Perry, supra, 48 Conn. App. 201.

The trial court did not abuse its discretion by admitting the letter into evidence. Although the contents of the letter may have been damaging to the defendant’s position at trial, that result, without more, does not constitute unfair prejudice. “All adverse evidence is damaging to one’s case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted.” (Internal quotation marks omitted.) State v. Robinson, supra, 227 Conn. 732. “Prejudice is not measured by the significance of the evidence which is relevant but by the impact of that which is extraneous.” State v. DeMatteo, 186 Conn. 696, 703, 443 A.2d 915 (1982).

The letter was not extraneous to the issues at trial and did not inject confusing or time consuming issues into the proceedings, nor did it provoke an undue emotional response. See State v. Robinson, supra, 227 Conn. 732; State v. Holliman, 214 Conn. 38, 52, 570 A.2d 680 (1990). Moreover, before admitting the letter into evidence, the trial court minimized the potential for prejudice by providing the jury with a limiting instruction. We conclude, therefore, that the trial court did not abuse its discretion by admitting this letter as evidence of the defendant’s consciousness of guilt.

IV

In his final claim, the defendant contends that the trial court improperly denied his motion to dismiss counsel in violation of the sixth amendment to the United States constitution and article first, § 8, of our state constitution. Specifically, the defendant contends that he could not communicate effectively with his attorney and was therefore deprived of his constitutional right to the assistance of counsel. We are not persuaded.

On April 10,1992, the defendant made an oral motion, petitioning the trial court to remove his court-appointed counsel. The defendant claimed that he could not communicate effectively with his counsel because of a language barrier. Additionally, the defendant alleged that defense counsel frequently refused to answer his questions and to listen to his explanations. The trial court denied the defendant’s motion, finding that the defendant’s complaint, raised on the eve of trial, was insufficient to warrant dismissal of defense counsel. On April 20, 1992, after the state had nearly completed its direct case, the defendant renewed his motion to dismiss counsel, and the trial court denied the motion.

“Our state and federal constitutions guarantee a criminal defendant the right to assistance of counsel. U.S. Const., amend. VI; Conn. Const., art. I, § 8.” (Internal quotation marks omitted.) State v. Webb, 238 Conn. 389, 417, 680 A.2d 147 (1996). “While a criminal defendant’s right to be represented by counsel implies a degree of freedom to be represented by counsel of [the] defendant’s choice . . . this guarantee does not grant a defendant an unlimited opportunity to obtain alternate counsel on the eve of trial. ... In order to work a delay by a last minute [replacement] of counsel there must exist exceptional circumstances. . . . Whether the circumstances warrant the appointment of new counsel is within the discretion of the trial court. . . . A court need not permit the replacement of counsel upon a defendant’s mere whimsical demand and certainly not where it is evident that a professed disenchantment with his lawyer is a subterfuge to secure an unwarranted delay in the trial.” (Citations omitted; emphasis added; internal quotation marks omitted.) Sekou v. Warden, 216 Conn. 678, 686-87, 583 A.2d 1277 (1990). “Although under some circumstances a complete breakdown in communication between a defendant and his counsel may warrant appointment of new counsel ... it may not be used to achieve delay.” (Citations omitted.) State v. Lee, 32 Conn. App. 84, 100-101, 628 A.2d 1318, cert. denied, 227 Conn. 924, 632 A.2d 702 (1993), cert. denied, 510 U.S. 1202, 114 S. Ct. 1319, 127 L. Ed. 2d 668 (1994). “We must distinguish between a substantial and timely request for new counsel pursued in good faith, and one made for insufficient cause on the eve of or in the middle of trial.” Id., 101. “It is within the trial court’s discretion to determine whether a factual basis exists for appointing new counsel. . . . [A]bsent a factual record revealing an abuse of [the court’s] discretion, the court’s failure to allow new counsel is not reversible error.” (Citation omitted; internal quotation marks omitted.) Id.

Applying this standard to the record before us, we conclude that the trial court did not abuse its discretion by denying the defendant’s request to dismiss counsel. The trial court properly determined that there was not a complete breakdown of communication between the defendant and his counsel. The defendant spoke only in Spanish and, although defense counsel could not speak Spanish, he used court-appointed inteipreters to communicate with the defendant. Moreover, the trial court observed that, throughout voir dire and the trial, defense counsel frequently communicated with the defendant. In addition, given the timing of the defendant’s motions, it was reasonable for the trial court to interpret his conduct as an attempt to delay the trial. We conclude that the trial court did not abuse its discretion in denying the defendant’s motion to dismiss his counsel.

The judgment is affirmed.

In this opinion the other judges concurred.

       The sixth amendment to the United States constitution provides that: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

       Article first, § 8, of the constitution of Connecticut provides that: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by indictment or information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held 1o answer for any crime, punishable by death or life imprisonment, unless on a presentment or an indictment of a grand jury, except in the armed forces, or in the militia when in actual service in time of war or public danger.”

       The fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . .

       The defendant subpoenaed the victim’s psychiatric records from United Services in Willamantic, Hartford Hospital, Norwich State Hospital and New Britain General Hospital.

       After having examined, with the victim’s consent, her records from Hartford Hospital and United Services, the trial court stated: “I suggest perhaps continuing with cross-examination [because] in reading those two records the court would have to respond at this time that there is nothing inconsistent with the complaining witness’ testimony or in the history that she had so far disclosed. So that—and there is, therefore, nothing that the court does not feel that the defendant himself does not know about the condition of the [victim], and that he has as much information as those two reports would warrant the defense in cross-examination of the [victim]. So, in effect, at this stage of the proceedings, I would—if you were to make a motion on the basis of the in camera reading of those two reports, I would deny it. That is why I suggest perhaps the best procedure is to proceed with cross-examination [of the victim].”

       Although the trial court had psychiatric records from four mental health facilities, when the defendant made his offer of proof on April 20, 1992, the victim had authorized in camera review of only the records from United Services and Hartford Hospital.

       The trial court stated: “[T]he court should bear in mind, in reviewing any records to determine whether or not the defendant should have confrontation by (he disclosure of confidential records, whether or not there is anything in these records that the defense would find necessary for confrontation purposes. And I find that the records cover a greater period than from 1991 to today’s date. I have observed the defendant on the stand, and I have read the records, and I have heard [the victim’s] testimony concerning an event in 1991, and I can say, on the basis of the records and her testimony and the testimony of the defendant concerning that period of time, that he not only knew but brought her to and participated in giving a history [of the victim’s mental health treatment] that predated 1991. And if we are considering what confrontation rights he would have as to the event of 1991 as to [the victim’s] being competent, having memory and being articulate, that there is nothing in the records which would give [the defendant] additional confrontation.”

       When the defendant petitioned the trial court to order disclosure of the victim’s records on April 20, 1992, the victim had not yet authorized the court to review in camera her records from Norwich State Hospital and New Britain General Hospital. The record indicates, however, that when the defendant renewed that claim on June 11,1992, the victim had authorized the trial court to review in camera her records from Norwich State Hospital. The trial court stated: “I think the one [the victim] did not grant was Norwich State Hospital. But then at a later time [the victim] granted the court permission to read the Norwich State Hospital report, because I do have a memory of reading it. ” The state concedes, however, that it is unclear whether the trial court later examined the victim’s records from New Britain General Hospital.

       The trial court, having reviewed the victim’s records, stated that “there was nothing in the records that would be of value to the defense in its impeaching the credibility of the [victim], and there was nothing in the mental condition as outlined in the various reports which would have in the court’s mind been, given the defendant an ability or opportunity to test [the victim’s] ability to perceive, recollect or articulate. And the court in speaking to the complaining witness on the stand and listening to her testimony came to the conclusion that there was no defect, no apparent defect in the ability to perceive, recollect or articulate.”

       The defendant also claims that the trial court’s failure to disclose the victim’s psychiatric records violated his due process rights under the fourteenth amendment to the United States constitution and article first, § 8, of our state constitution. We decline to review separately the defendant’s due process claim because our Supreme Court’s decision in State v. D’Ambrosio, 212 Conn. 50, 57 n.5, 561 A.2d 422 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990), establishes that this claim is subsumed by our analysis of the defendant’s right to confrontation claim. In determining whether the trial court had improperly denied the defendant’s request for an examination of the psychiatric records of a key state’s witness, the court in D’Ambrosio stated that: “It is of no moment in this case whether a defendant’s constitutional right to discredit witnesses by accessing their psychiatric records stems from the sixth amendment’s confrontation clause; Davis v. Alaska, 415 U.S. 308, 315-16, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); from the fourteenth amendment’s due process clause, as proposed by four justices of the United States Supreme Court; Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987); or from either the confrontation or due process clause of our state constitution. Conn. Const., art. I, § 8; see State v. Hufford, 205 Conn. 386, 401-402, 533 A.2d 866 (1987). We postpone deciding this question until we have a case in which it'would make a difference or until the United States Supreme Court offers us further guidance.”

       Since the trial court conducted an in camera inspection of those records with the consent of the victim and without objection by either the state or the defendant, the issue of whether the defendant made a threshold showing under Esposito is not before this court. See State v. Pierson, supra, 201 Conn. 226.

       The trial court instructed the jury: “The evidence that is about to be offered at this time is admitted under the principle of law known as consciousness of guilt, and where a defendant says something or does something which would tend to have a fact finder believe that it tends to avoid a prosecution or attempts to avoid a finding of guilt to which a penalty might be imposed, you fact finders may consider that offer in that nature. However, it is not offered to show bad character or propensity to commit crime. It is solely offered if you find the circumstances to have existed, and you find further if they did exist they tend to indicate the defendant was attempting to avoid prosecution or avoid a finding which would include a penalty, you may consider it along with all the other evidence in the case as to your final decision of guilt or not guilt.”

       The trial court stated that it “had observed through the procedure of voir dire that [defense counsel] has always [gone] over to the [defendant], discussed with him each of the venirepeople who had been examined as to whether or not, I assume, he wanted to accept them. And there has been no evidence that there was ever any contest with [defense counsel] by him, that he did speak with the inteipreters that have been here, and there had been obvious discussions through some seven days of trial, which includes voir dire of course.” The trial court stated that although defense counsel’s inability to speak Spanish may have hampered his ability to communicate with the defendant, nevertheless “it has been obvious to me that there has been discussion with the interpreter by the defendant and through the interpreter to [defense counsel].”


source: Caselaw Access Project

author: HEALEY, J.

license: Public Domain

text:
    MARK TARAVELLA v. DEBRA STANLEY
    (AC 17077)
    Foti, Schaller and Healey, Js.
    Argued November 4, 1998
    officially released March 30, 1999

      George R. Temple, for the appellant (plaintiff).

      J. Bernard Davis, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Donald M. Longley, assistant attorney general, for the appellee (state).

      Robert W. Shaver II, for the minor child.
   Opinion

HEALEY, J.

This appeal involves the Uniform Reciprocal Enforcement of Support Act (URESA), General Statutes (Rev. to 1995) § 46b-180 et seq. The issue to be decided is whether under our URESA statute a respondent in an action on the issue of paternity is entitled to a jury trial under General Statutes (Rev. , to 1995) § 46b-164. In oral argument before this court, the respondent’s counsel abandoned any constitutional claim, state or federal, that he had made, and thus, we are presented solely with the statutory issue of whether the respondent is entitled to a jury trial on the issue of paternity under § 46b-164.

The following facts are relevant to this appeal. The petitioner, Debra Stanley, initiated a petition in Michigan to establish the paternity of a child, bom to her on December 10, 1994. This petition was initiated under Michigan’s Uniform Reciprocal Enforcement of Support Act and then forwarded to Connecticut. On October 16, 1995, the respondent, Mark Taravella, appeared through counsel in Connecticut and filed a denial of paternity. He also requested that the court order genetic testing of the petitioner, the minor child and himself to assist in the resolution of the issue of paternity. The results of the genetic testing indicated that the probability of paternity was 99.75 percent that the respondent was the child’s biological father.

After reviewing the genetic test results, the respondent filed a motion for disclosure of facts, production of records and interrogatories on February 26, 1996. The petitioner complied with this requested discovery on March 1, 1996. On April 16, 1996, the respondent’s counsel went to Michigan to take the petitioner’s deposition. The petitioner appeared for the deposition and has consistently complied with every request for discovery that the respondent has made.

Thereafter, on August 1, 1996, the respondent moved for trial by jury. That motion was denied by a family support magistrate. On October 28, 1994, after a trial of the issues to the magistrate, a determination of paternity was entered against the respondent. The respondent then appealed to the Superior Court. See General Statutes (Rev. to 1995) § 46b-231 (n). The Superior Court, Shortall, J., affirmed the decision of the magistrate. This appeal followed.

On appeal to this court, the respondent claims that the fact that an action is brought under the URESA statute does not preclude a respondent from his right to a jury trial under § 46b-164. The respondent’s claim involves a number of subissues, which we discuss in turn.

Initially, we note certain relevant principles that we will supplement during our discussion. “In 1950, the Commissioners of Uniform State Law enacted the Uniform Reciprocal Enforcement of Support Act ... in an attempt to aid the enforcement of support obligations between persons residing in separate states. This act, currently law in every state of the United States, provides an inexpensive and efficient enforcement mechanism for the ‘interstate’ collection of child support.” 2 N. Vitek, Disputed Paternity Proceedings (5th Ed. 1998) § 31.01. The primary purpose of URESA is to provide a simple two state procedure by which the obligor’s (respondent’s) duty to support an obligee (petitioner) may be enforced expeditiously and with a minimum of expense to the obligee. See Proctor v. Sachner, 143 Conn. 9, 12, 118 A.2d 621 (1955); Koon v. Boulder County Dept. of Social Services, 494 So. 2d 1126, 1129 (Fla. 1986); Dept. of Human Resources v. Westmoreland, 210 Ga. App. 603, 436 S.E.2d 706, cert. denied, 210 Ga. App. 901 (1993); Paton v. Brill, 104 Ohio App. 3d 826, 829, 663 N.E.2d 421 (1995); Clarkston v. Bridge, 273 Or. 68, 71, 539 P.2d 1094 (1975); Bushway v. Riendeau, 137 Vt. 455, 459, 407 A.2d 178 (1979); State v. Grenley, 78 Wash. App. 864, 867, 899 P.2d 830 (1995). “URESA creates no duty of support itself, but instead simply provides a means to enforce a duty of support as it may exist under the law of the responding state.” Johnson v. Johnson, 264 Ill. App. 3d 662, 664, 636 N.E.2d 1013 (1994); see Esteb v. Enright, 563 N.E.2d 139, 141 (Ind. App. 1990); Horch v. Ponik, 132 Wis. 2d 373, 378, 392 N.W.2d 123, rev. denied, 132 Wis. 2d 484, 393 N.W.2d 544 (1986). The remedies provided under URESA are “in addition to and not in substitution for any other remedies.” General Statutes (Rev. to 1995) § 46b-181; see, e.g., Dept. of Human Resources v. Westmoreland, supra, 603; Daniel-Nordin v. Nordin, 173 Wis. 2d 635, 648, 495 N.W.2d 318 (1993). This court has said that “[i]n URESA cases, this court gives great weight to decisions from other jurisdictions in compliance with the mandate of General Statutes § 46b-209, which provides that ‘[tjhis part shall be [so interpreted and] construed as to [effectuate] its general purpose to make uniform the laws of the states which enact it.’ ” Fischer v. Goldstein, 14 Conn. App. 487, 492 n.6, 542 A.2d 731, cert. denied, 208 Conn. 814, 546 A.2d 280 (1988). URESA is a remedial statute and is to be liberally construed. See, e.g., In re Marriage of Ryall, 154 Cal. App. 3d 743, 751, 201 Cal. Rptr. 504 (1984); Illinois v. Sterling, 248 Minn. 266, 274, 80 N.W.2d 13 (1956); Scott v. Sylvester, 220 Va. 182, 185, 257 S.E.2d 774 (1979), on appeal after remand, 225 Va. 304, 302 S.E.2d 30, cert. denied, 464 U.S. 961, 104 S. Ct. 395, 78 L. Ed. 2d 338 (1983); Yetter v. Commeau, 84 Wash. 2d 155, 159, 524 P.2d 901 (1974); 73 Am. Jur. 2d, Statutes § 338 (1974).

Although the 1958 revision of URESA is silent concerning a court’s authority to adjudicate paternity in an interstate proceeding, neither party to this case claims that the court here lacked such authority and the majority of courts addressing this question appear to have taken “a more desirable approach” and “[t]hese better reasoned decisions take a broader, less restrictive view of section 7 [URESA] and conclude that adjudication of paternity is well within the scope of the URESA support proceeding.” 2 N. Vitek, supra, § 31.06. The Oregon Supreme Court’s decision in Clarkston v. Bridge, supra, 273 Or. 68, exemplifies that view. In Clarkston, the court said, “URESA authorizes both the finding and the enforcement of duties of support which have not been previously established in another proceeding.” Id., 72. The Clarkston court reasoned that, in determining whether the respondent owed a duty of support to the child involved, the court first had to decide whether the respondent was the father of the child. Therefore, it observed that since the order of support portion of its URESA statute authorized its circuit court to find and enforce a duty of support in a URESA proceeding, “the statutory authority to establish paternity . . . seems clearly implied.” Id., 73. In Fisher v. Goldstein, supra, 14 Conn. App. 490, this court said: “The fact that this is a URESA action and not a traditional paternity proceeding is no impediment to the trial court’s finding of paternity. It is well established that a court sitting in a URESA proceeding has jurisdiction to determine paternity. See annot., 81 A.L.R.3d 1175 [1977], Determination of Paternity of Child as Within Scope of Proceeding Under [URESA].”

The respondent raises a number of issues in support of his basic claim that he is not precluded in this URESA proceeding from electing a trial by jury under § 46b-164. He claims that there is nothing in URESA that takes away his right to a jury trial set out in § 46b-164 even though § 46b-164 is set out in another chapter of our statutes, i.e., chapter 815y. In doing so, he points to § 46b-181 in URESA, which is entitled “Remedies additional to existing remedies” and which states that “[t]he remedies herein provided are in addition to and not in substitution for any other remedies.” Going on, the respondent claims that under § 46b-197, which provides that the proceedings are to be conducted “in the manner prescribed by law for an action for the enforcement of the type of duty of support claimed . . . .”

According to the respondent, because URESA is silent as to a jury trial, § 46b-181 entitles him to elect a jury trial under § 46b-164, even though this latter statute is found in a different chapter of our General Statutes than the URESA statute. Furthermore, in oral argument before us, the respondent specifically claimed that the “in addition to and not in substitution for any other remedies for” language of § 46b-181 overrides the language of § 46b-164 confining it to chapter 815y, despite the fact that the legislature, in enacting our URESA statute, left the language of § 46b-164 totally untouched. The respondent also maintains that the legislature’s failure expressly to override § 46b-164 does not preclude this entitlement to a jury trial under § 46b-164 because § 46b-231 (m) (5) makes the jury trial option available to him.

In countering the respondent’s claims, the petitioner argues that § 46b-164 is contained in chapter 815y of the General Statutes, whereas the URESA court’s ability to determine the support obligation is authorized by General Statutes (Rev. to 1995) §§ 46b-198 and 46b-180 (4), which are contained in chapter 816. The petitioner also argues that the legislature intended to exclude URESA fathers from the scope of § 46b~164 because the clear language of § 46b-164 limits that statute to “prosecutions” encompassed by chapter 815y and, accordingly, absent legislation to the contrary, this court “must” not apply § 46b-164 to this URESA proceeding. The petitioner, therefore, argues that because the URESA court’s ability to determine paternity under URESA is not a “prosecution” under the provisions of chapter 815y, the respondent does not have a statutory right to a jury trial. We agree with the petitioner.

“As with any issue of statutory interpretation, our initial guide is the language of the statute itself.” (Internal quotation marks omitted.) Herbert S. Newman & Partners, P. C. v. CFC Construction Ltd. Partnership, 236 Conn. 750, 756, 674 A.2d 1313 (1996); see Commission on Human Rights & Opportunities v. Truelove & MacLean, Inc., 238 Conn. 337, 349, 680 A.2d 1261 (1996). “If the words of a statute are clear, the duty of a reviewing court is to apply the legislature’s directive since where the wording is plain, courts will not speculate as to any supposed intention because the question before a court then is not what the legislature actually intended, but what intention it expressed by the words that it used.” Duguay v. Hopkins, 191 Conn. 222, 228, 464 A.2d 45 (1983); see also Daily v. New Britain Machine Co., 200 Conn. 562, 571, 512 A.2d 893 (1986); 2A J. Sutherland, Statutory Construction (5th Ed. Singer 1992) § 46.01. “Courts may not read into clearly expressed legislation provisions which do not find expression in its words. Brunswick Corporation v. Liquor Control Commission, 184 Conn. 75, 81, 440 A.2d 792 (1981), quoting International Business Machines Corporation v. Brown, 167 Conn. 123, 134, 355 A.2d 236 (1974).” (Internal quotation marks omitted.) Struckman v. Burns, 205 Conn. 542, 546, 534 A.2d 888 (1987).

We turn first to the respondent’s claim that he is entitled to a jury trial because there is nothing in URESA that takes away his “right” to a jury trial under § 46b-164. In advancing this position, he does not, however, appropriately confront the plain language of § 46b-164. That section starts with the following words of limitation: “In any prosecution under the provisions of this chapter . . . .” This statute is found in chapter 815y of the General Statutes captioned “Paternity Matters,” whereas the URESA statute is found in chapter 816, where it is set out as the “Uniform Reciprocal Enforcement of Support Act.” The plain language of § 46b-164 embodies the legislative intent that, inter alia, “the trial of the question of fact as to the guilt or innocence of the defendant” in a paternity action under chapter 815y is a “prosecution under the provisions of chapter 815y.” The unambiguous language of this statute demonstrates the legislative intent to confine the entitlement to a jury trial to “any prosecution under the provisions of [chapter 815y].”

There is no question that the legislature may, by the language it uses in a statute or a section of a statute, demonstrate its intent that it be limited or restricted. See Stuart v. Dept. of Correction, 221 Conn. 41, 45, 601 A.2d 539 (1992); Public Service Commission v. Diamond State Telephone Co., 468 A.2d 1285, 1300 (Del. 1983); see 73 Am. Jur. 2d, Statutes § 199 (1974). The legislature’s use of words, such as those used in § 46b-164, limiting that section to chapter 815y, can and does set out the intended situations that bring that statute into play and “connotes the legislative intent to exclude that which is not included.” McNulty v. Stamford, 37 Conn. App. 835, 840, 657 A.2d 1126 (1995). The authority of a court in a URESA proceeding to determine a “duty of support” is authorized by statute set out in a different chapter of the General Statutes than that containing § 46b-164. Had the legislature intended to afford URESA respondents a jury trial, it could have so stated in the URESA statute, just as it did in § 46b-164. We simply cannot import into chapter 816 that which the legislature clearly confined to chapter 815y.

Moreover, the respondent’s claim is not supported by his invocation of the “in addition to and not in substitution for any other remedies” language of § 46b-181. He claims that this language, given the silence of URESA on the availability of a jury trial, entitles him to the benefit of the jury trial election in § 46b-164. This claim fails for two reasons. First, the plain language of § 46b-164, confining that statute to chapter 815y, bars drawing on the language of § 46b-181 in chapter 816 to support this argument. Second, the option of a defendant in a “prosecution” under § 46b-164 does not constitute a “remedy,” in and of itself, within the purview of § 46b-181. Rather, § 46b-164 was a portion of the statutory scheme in chapter 815y that afforded a “remedy” for the rights created by and to be enforced by chapter 815y. It has been stated that “[ejvery action is brought in order to obtain some particular result which is termed the remedy. This final result is not the ‘cause of action;’ it is rather the ‘object of the action.’ ” Wildman v. Wildman, 70 Conn. 700, 707, 41 A. 1 (1898). The United States Supreme Court quoted with approval Bouvier’s definition of “remedy” as “the means employed to enforce aright, or redress an injury.” (Internal quotation marks omitted.) The Knapp, Stout & Co. v. McCaffrey, 177 U.S. 638, 644, 20 S. Ct. 824, 44 L. Ed. 921 (1900). Courts speak of a “cause of action” as a set of facts on which a recovery (or a specific result) may be had and the cause of action is distinct from the remedy in that the remedy is the means by which that cause may be satisfied or its results effectuated. Ex Parte Southern Building Code Congress, 282 Ala. 523, 528, 213 So. 2d 365 (1968); Venuto v. Owens-Corning Fiberglas Corp., 22 Cal. App. 3d 116, 122, 99 Cal. Rptr. 350 (1971); World Radio Laboratories, Inc. v. Coopers & Lybrand, 2 Neb. App. 747, 753, 514 N.W.2d 351 (1994); 1 Am. Jur. 2d, Actions § 2 (1994). The provision in § 46b-164 for a trial by court or by jury is simply a description of the mode of the trial that a defendant may elect in a chapter 815y proceeding. See State v. Barnett, 700 So. 2d 1005, 1015 (La. App. 1997). It is not per se a “remedy”; the entire statutory scheme of chapter 815y prescribes the steps required to be undertaken to obtain the remedy provided by the provisions of that chapter. In enacting legislation, lawmakers are deemed to have had a definite purpose in mind, and to have included the component parts, which were intended to accomplish the legislative purpose of that statutory scheme. See Denbo v. Moorestown Township, 23 N.J. 476, 481, 129 A.2d 710 (1957). Section 46b-164 is but one of these component parts within the statutory scheme of chapter 815y that, in combination with other components, affords the remedy. Section 46b-164, therefore, does not fall within the scope of § 46b-181. The “in addition to and not in substitution for any other remedies” language in § 46b-181 means that our URESA provision, which comes from the uniform act, is separate and apart and additional to other remedies for the enforcement of child support obligations that exist under our law. See, e.g., People ex rel. Oetjen v. Oetjen, 92 Ill. App. 3d 699, 703, 416 N.E.2d 278 (1980); Gray v. Messier, 602 A.2d 1155, 1156 (Me. 1992); Rood v. Rood, 4 Neb. App. 455, 461, 545 N.W.2d 138 (1996); San Diego v. Elavsky, 58 Ohio St. 2d 81, 84, 388 N.E.2d 1229 (1979); Horch v. Ponik, supra, 132 Wis. 2d 379. For example, it is “in addition to and not in substitution for” such child support obligations as may be created by a paternity proceeding under chapter 815y or such an order created by a dissolution of marriage decree. See General Statutes (Rev. to 1995) § 46b-204. We reject the respondent’s claim as to § 46b-164 because, as we have shown, § 46b-164 specifically and URESA as a whole provide a petitioner with an additional or alternative civil remedy that does not in any way impair or affect any other remedy available to a petitioner with reference to the enforcement of child support orders.

Finally, in arguing his entitlement to a jury trial under § 46b-181, the respondent, while conceding that URESA itself is silent on that issue and has never been amended to include a jury trial option, claims that he is entitled to one under the provisions of General Statutes (Rev. to 1995) § 46b-231 (m) (5). We are not persuaded.

Section 46b-231 (m) enumerates the “powers and duties” of family support magistrates. Subdivision (5) of § 46b-231 (m), by its clear language, is confined to “[proceedings to establish paternity in IV-D support cases . . . .” Section 46b-231 (b) (14), as we have noted, defines “IV-D support cases.” The respondent apparently claims that his jury trial claim is supported by the language of § 46b-231 (m) (5), which provides in relevant part: “The matter shall be heard and determined by the family support magistrate in accordance with the provisions of chapter 815y, except that if a party to the action demands trial by jury pursuant to section 46b-164, the matter shall be referred for trial to the superior court for the judicial district where the case was filed.” The record does not contain anything that would support his claim that the proceeding below was a “IV-D support proceeding” within the ambit of § 46b-231 (m) (5). On this aspect of the matter, he is therefore left outside the reach of that definition and is given no support by the last sentence of subdivision (5) of subsection (m) containing the reference to chapter 815y of the General Statutes.

The judgment is affirmed.

In this opinion the other judges concurred.

       Our URESA statute became effective on June 18, 1953. See Public Acts 1953, No. 353.

       Adopting the terminology employed in our URESA statute, we will refer to the plaintiff, Mark Taravella, (a Connecticut resident) as the respondent and the defendant, Debra Stanley, (a Michigan resident) as the petitioner.

       General Statutes (Rev. to 1995) § 46b-164 at all times relevant to this case provided: “In any prosecution under the provisions of this chapter, the trial of the question of fact as to the guilt or innocence of the defendant shall, at the desire of either party, be by a jury of six.” See footnote 13.

       Respondent’s counsel also conceded at oral argument before us that his brief was not adequate for a constitutional analysis.

       The attorney general of Connecticut represents the petitioner in URESA proceedings in accordance with General Statutes (Rev. to 1995) § 46b-186, which provides in relevant part: “It shall be the duty of the attorney general to appear on behalf of and represent the petitioner in every proceeding pursuant to this part at the time the petition is filed and at all stages of the proceeding thereafter in this state and to obtain and present such evidence or proof as may be required by the court in the initiating state or the responding state . . . .”

       On his appeal to the Superior Court, the respondent’s claim for a jury trial was based on two grounds. First, URESA matters are really “IV-D support cases” by operation of General Statutes (Rev. to 1995) § 46b-231 (m) (2) and that respondents in such cases are entitled to a jury trial on the issue ofpaternity, pursuant to General Statutes § 46b-231 (m) (5). Second, if the respondent is not entitled to a jury trial by operation of these statutes, he is denied his constitutional rights under the federal and state constitutions to due process of law and equal protection of the laws. As noted, the respondent has abandoned his constitutional claims.
      Parenthetically, we note that “IV-D support cases,” as defined in General Statutes (Rev. to 1995) § 46b-231 (b) (14), “are actions for child and spousal support under Title IV-D of the Social Security Act and include cases in which support rights have been assigned to the state in AFDC cases [AFDC cases are cases in which an individual is receiving benefits under Title IVA of the Social Security Act. See General Statutes § 46b-231 (b) (1).] and in foster care cases or cases in which a person has applied, prior to October 1,1993, to the support enforcement division of the superior court, or applied, on or after October 1, 1993, to the department of social services, for child-support enforcement services.”

       Courts in some twenty jurisdictions have taken this position. See 2 N. Vitek, supra, § 31.06 n.8.

       Section 7 of URESA is similar to General Statutes (Rev. to 1995) § 46b-184.

       General Statutes (Rev. to 1995) § 46b-197 provides: “The court or other agency empowered by law to establish or enforce support shall conduct proceedings under this part in the manner prescribed by law for an action for the enforcement of the type of duty of support claimed, and if the respondent enters a verified denial of any of the material allegations thereof, the court or other agency empowered by law to establish or enforce support shall stay the proceedings and transmit 1 o the court or other agency empowered by law to establish or enforce support in the initiating state a transcript of the official proceedings, showing the denials entered by the respondent. Upon receipt by the court or other agency empowered by law to establish or enforce support in the initiating state of such transcript, such court or other agency empowered by law to establish or enforce support shall take such proof, including the testimony of the petitioner and the petitioner’s witnesses and such other evidence as the court or other agency empowered by law to establish or enforce support deems proper, and the bureau shall make its recommendation, based on all of such proof and evidence, and shall transmit to the court or other agency empowered by law to establish or enforce support in the responding state an exemplified transcript of such proof and evidence and of its proceedings and recommendation in connection therewith. Upon the receipt of such transcript, the court or other agency empowered by law to establish or enforce support in the responding state shall resume its hearing in the proceeding and shall give the respondent a reasonable opportunity to appear and reply. Upon the resumption of such hearing, the respondent shall have the right to examine or cross-examine the petitioner and 1he petitioner’s witnesses by means of depositions or written interrogatories, and the petitioner shall have the right to examine or cross-examine the respondent and the respondent’s witnesses by means of depositions or written interrogatories.”

       General Statutes (Rev. to 1995) § 46b-231 (m) (5) of the Family Support Magistrate’sActprovides: “Proceedings to establishpatemity in IV-D support cases shall be filed in the family support magistrate division for the judicial district where the mother or putative father resides. The matter shall be heard and determined by the family support magistrate in accordance with the provisions of chapter 815y, except that if a party to the action demands trial by jury, pursuant to section 46b-164, the matter shall be referred for trial to the superior court for the judicial district where the case was filed.”

       General Statutes (Rev. to 1995) § 46b-198 entitled “Order of Support” provides: “If the court or other agency empowered by law to establish or enforce support of the responding state finds a duty of support, it may order the respondent to furnish support or reimbursement therefor and subject the property of the respondent to such order. Support orders shall require that payments be made to the appropriate state agency of the court of the responding state.”

       General Statutes (Rev. to 1995) § 46b-180 (4) provides: “ ‘Duty of support’ includes any duty of support imposed or imposable by law, or by any court order, decree or judgment, whether interlocutory or final, whether incidental to a proceeding for divorce, dissolution of marriage, judicial separation, separate maintenance or otherwise. Where any order for the payment of alimony or support to or on behalf of any obligee has been made by the superior court or a family support magistrate of this state, the amount of such order shall be accepted as determinative of the measure of such obligation, and such order may be enforced by the family support magistrate division through proceedings under this part.”

       We note that § 46b-164 was repealed by Public Acts, Spec. Sess., June, 1997, No. 97-7, § 37, effective July 1, 1997, after the Superior Court decision in this case was appealed to this court.

       Bouvier’s Law Dictionary (1897).

       We note that § 46b-171 (a) of chapter 815y provides in relevant part: “If the defendant is found to be the father of the child, the court or family support magistrate shall order him to stand charged with the support and maintenance of such child . . . .” Thus, this statute, in a “prosecution” under its provisions, operates to create a duty of support upon the father.

       We note that § 46b-231 (m) (5) is a portion of part III of chapter 816 of the General Statutes, which contains three parts. Part I sets out the “Uniform Reciprocal Enforcement of Support Act,” §§ 46b-180 through 46b-214. Part II sets out the “Obligation of Relatives” provisions in §§ 46b-215 through 46b-230. Part III sets out. the “Family Support Magistrate’s Act,” §§ 46b-231 through 46b-236.
      General Statutes (Rev. to 1995) § 46b-231 is entitled “Definitions. Family Support Advisory Committee. Family support magistrate division. Family support magistrates; appointment, salaries, powers and duties. Orders. Appeal. Attorney general; duties re actions for support.”

       See footnote 6.

       The reference to chapter 815y in § 46b-231 (m) (5) lends further support to our earlier determination above that the jury trial provided for in § 46b-164 cannot be extrapolated into URESA as that latter enactment is set out in part I of chapter 816. In enacting, in 1986, part III of chapter 816, which is the Family Support Magistrate’s Act, the legislature obviously revisited and considered § 46b-164, which was enacted years before both our Family Support Magistrate’s Act, § 46b-231 et seq. and our URESA statute. Yet it did nothing about enacting any jury trial entitlement, as set out in § 46b-164 into the URESA statute, also a part of chapter 816. Courts presume that laws are enacted in view of existing relevant statutes and “[statutes are to be interpreted with regard to other relevant statutes because the legislature is presumed to have created a consistent body of law.” (Internal quotation marks omitted.) M. DeMatteo Construction Co. v. New London, 236 Conn. 710, 715, 674 A.2d 845 (1996); State v. Domian, 35 Conn. App. 714, 725, 646 A.2d 940 (1994), aff'd, 235 Conn. 679, 668 A.2d 1333 (1996). Stated another way: “[W]e construe statutes with the assumption that the legislature is presumed to be cognizant of existing statutes, and to enact new statutes in an attempt to create a consistent body of law.” State v. Domian, supra, 725.


author: STOUGHTON, J.

text:
    JOHN V. TURNER, JR. v. CHARLOTTE CROMAN
    (AC 17884)
    O’Connell, C. J., and Sullivan and Stoughton, Js.
    Argued December 17, 1998
    officially released March 30, 1999

      Douglas J. Monaghan, for the appellant (plaintiff).

      Alan D. Spargo, with whom, on the brief, was Charlotte Croma,n, pro se, for the appellee (defendant).
   Opinion

STOUGHTON, J.

The plaintiff, John V. Turner, Jr., appeals from the summary judgment, rendered by the trial court, in favor of the defendant, Charlotte Croman. The plaintiff claims that the trial court improperly (1) emphasized his failure to file opposing affidavits because the defendant’s affidavit failed to address the fundamental allegation of the substitute amended complaint and (2) considered the affidavit of the defendant’s expert. We affirm the judgment.

The plaintiff brought the underlying action to recover damages for legal malpractice by the defendant. The defendant denied that she was negligent, pleaded special defenses and filed a counterclaim. After the pleadings were closed, the defendant moved for summary judgment on the complaint and filed supporting affidavits. The plaintiff filed a memorandum in opposition but no affidavits or other evidence to support his position. The trial court granted the defendant’s motion for summary judgment and this appeal followed.

We note that while the defendant’s counterclaim may still be pending, this appeal is properly before us because the summary judgment rendered on the substitute amended complaint disposed of all causes of action in that complaint and is, therefore, a final judgment, pursuant to Practice Book § 61-3.

I

The plaintiffs initial claim is that the trial court improperly emphasized his failure to file opposing affidavits because the defendant’s affidavit and supporting documentation failed to address the plaintiffs claim that the defendant had failed to provide proper advice in connection with the plaintiffs child support obligations. We disagree.

The standard of review for a trial court’s decision to grant summary judgment is well established. “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.’ ” Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). “Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].” (Internal quotation marks omitted.) Id. If the nonmovant does not recite specific facts, in accordance with Practice Book §§ 17-45 and 17-46, formerly §§ 380 and 381, that contradict those stated in the movant’s affidavits and documents and show there is a genuine issue for trial, summary judgment shall be rendered against him. Hryniewicz v. Wilson, 51 Conn. App. 440, 444, 722 A.2d 288 (1999).

In this case, the plaintiff failed to file any affidavits or exhibits either to support his claims or to refute the defendant’s evidence. The defendant, however, submitted an affidavit from a practicing attorney stating his opinion that the defendant had exercised the degree of care, skill and diligence exercised by prudent practicing attorneys in her locality. He also stated that the plaintiff was not able to show any damages. The trial court concluded that the documents filed by the defendant sufficiently established that there was no genuine issue of material fact and that she was entitled to judgment as a matter of law. Because the defendant’s assertions that she had used proper care and that the plaintiff had sustained no damages were not controverted, the trial court properly granted the defendant’s motion for summary judgment.

II

The plaintiff also claims that the trial court improperly considered the affidavit of the defendant’s expert. This claim is without merit.

“[T]he trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed. . . . Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.” (Citations omitted; internal quotation marks omitted.) State v. Correa, 241 Conn. 322, 353-54, 696 A.2d 944 (1997).

In the present case, the trial court referred to the defendant’s affidavits, one of which opined that there was no failure to exercise proper care, skill and diligence on the part of the defendant. The trial court characterized this affidavit as that of an expert. The affidavit was made by an attorney whose practice includes family law and who has practiced in Connecticut for forty years. The affiant attorney rendered his opinion after reviewing all of the pleadings and a deposition of the plaintiff. On the basis of his review, the affiant attorney opined that the defendant neither violated the minimum standard of care in her representation of the plaintiff nor failed to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent member of the legal profession. We agree with the conclusion of the trial court that the attorney affiant qualified as an expert witness.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 61-3 provides in relevant part: “A judgment disposing of only a part of a complaint, counterclaim, or cross complaint is a final judgment if that judgment disposes of all causes of action in that complaint, counterclaim, or cross complaint brought by or against a particular party or parties.
      “Such a judgment shall be a final judgment regardless of whether judgment was rendered ... by summary judgment pursuant to Section 17-44, or otherwise. . . .”


text:
    COMMUNITY ACTION FOR GREATER MIDDLESEX COUNTY, INC. v. AMERICAN ALLIANCE INSURANCE COMPANY
    (AC 17249)
    O’Connell, C. J., and Sullivan and Stoughton, Js.
    Argued December 17, 1998
    officially released March 30, 1999

      Michael S. Taylor, with whom, on the brief, were Daniel P. Scapellati and John W. Lemega, for the appellant (plaintiff).

      Linda L. Morkan, for the appellee (defendant).
   Opinion

STOUGHTON, J.

The plaintiff, Community Action for Greater Middlesex County, Inc. (Community Action), appeals from the summary judgment rendered by the trial court. On appeal, Community Action claims that the trial court improperly (1) resolved an insurance policy coverage issue against it and in favor of the defendant, American Alliance Insurance Company (American), and (2) denied Community Action’s motion for summary judgment. We affirm the judgment of the trial court.

Community Action initiated suit against American for breach of an insurance contract. The allegations asserted in the complaint include the following. Community Action, a federally funded agency, provides a preschool training program. American is the general liability insurance carrier for Community Action under a policy purchased from American by Community Action. The parent and next friend of a six year old child brought suit against Community Action alleging that while the child was enrolled in the program, she was sexually molested by three boys who were in her class.

Pursuant to the insurance contract, American agreed to defend and indemnify Community Action against any action seeking damages due to bodily injury. Upon notice of the litigation brought on behalf of the six year old child, Community Action notified American and demanded that American defend and indemnify it against the suit. American declined to defend or to indemnify Community Action, relying on the abuse or molestation exclusion contained in the insurance policy. Following its successful defense of the litigation, Community Action sought reimbursement from American for all the expenses incurred, plus interest. American refused the demand and Community Action filed a complaint alleging that American breached the insurance contract by its failure to provide a defense.

American responded to the complaint, admitting certain allegations and denying others, and raised a special defense. Specifically, American asserted that the insurance policy issued to Community Action contained an express exclusion for abuse or molestation, the provisions of which apply to the claims raised by the parent and next friend against Community Action, and, therefore, American did not owe Community Action any duty to defend or any other contractual obligation under the applicable policy. The record does not contain a reply to this special defense.

In March, 1997, both parties filed motions for summary judgment with supporting memoranda and exhibits. Following oral argument, the trial court reserved decision and then, by notice dated May 14,1997, notified the parties of its ruling in favor of American. The trial court did not provide a memorandum of decision to explain the basis for its decision. Rather, the court simply signed the order, indicated that Community Action’s motion for summary judgment was denied and that American’s motion for summary judgment was granted, and wrote on the order, “See Middlesex Mutual Assurance Co. v. Rand, Superior Court, Judicial District of Middlesex at Middletown, Docket No. 76644 (April 4, 1996) (Stanley, J.).” This appeal of the decision on the parties’ motions for summary judgment followed.

The duty to provide this court with a record adequate for review rests with the appellant. See Statewide Grievance Committee v. Clarke, 48 Conn. App. 545, 547, 711 A.2d 746, cert. denied, 245 Conn. 923, 717 A.2d 239 (1998). In this case, the record is inadequate for review because we have not been provided with either a written memorandum of decision or a transcribed copy of an oral decision signed by the trial court stating its reasons for its decision to resolve the insurance policy coverage issue against Community Action and to deny Community Action’s motion for summary judgment. See Practice Book § 64-1 (a), formerly § 4059 (a).

While the trial court wrote on its order, “See Middlesex Mutual Assurance Co. v. Rand,” that decision does not inform us as to the trial court’s reasoning in the present case. Middlesex Mutual Assurance Co. involved an exclusion for “bodily injury or property damage which is expected or intended by the insured.” In Middlesex Mutual Assurance Co., the court concluded that the exclusion applied in an instance of sexual assault by an adult on a minor. The exclusion in the present case, however, was for “actual or threatened abuse or molestation” and the incident involved an alleged act of sexual molestation by minors of another minor. The Middlesex Mutual Assurance Co. decision also discussed summary judgment and when an insurer’s duty to defend arises, in addition to the discussion on the exclusion. We cannot speculate on the purpose for which the Middlesex Mutual Assurance Co. case was noted.

Thus, “[w]e . . . are left to surmise or speculate as to the existence of a factual predicate for the trial court’s rulings. 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 . . . any decision made by us respecting [the plaintiffs claims] would be entirely speculative.” (Internal quotation marks omitted.) Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 608-609, 710 A.2d 190 (1998).

Because we have not been provided with the trial court’s factual or legal basis for its rulings, we cannot reach the issue of whether the trial court acted properly. The record is inadequate for our review of the Community Action’s claims.

The judgment is affirmed.

In this opinion the other judges concurred.

       The parties filed cross motions for summary judgment with the trial court, claiming that there were no material facts in dispute and that each was entitled to judgment as a matter of law. The trial court granted the defendant’s motion and denied the plaintiffs. The plaintiff argues that the decision on each motion should be reversed.

       The suit alleges that the child suffered emotional trauma as a result of one or more of six separate acts of negligence on the part of Community Action: failure (1) to supervise, (2) to investigate, (3) to train teachers, (4) to hire qualified teachers, (5) to report allegations of sexual abuse and (6) to keep the child safe from harm.

       The abuse or molestation exclusion provided: “This endorsement modifies insurance provided under the following:
      “COMMERCIAL GENERAL LIABILITY COVERAGE PART
      “This insurance does not apply to ‘bodily injury,’ ‘property damage,’ ‘advertising injury’ or ‘personal injury’ arising out of:
      “(a) the actual or threatened abuse or molestation by anyone of any person while in the care, custody or control of any insured, or “(b) the negligent:
      “(i) employment;
      “(ii) investigation;
      “(iii) supervision;
      “(iv) reporting to the proper authorities, or failure to so report; or “(v) retention;
      “of a person for whom any insured is or ever was legally responsible and whose conduct would be excluded by (a) above.”

       Practice Book § 61-10 provides in relevant part: “It is the responsibility of the appellant to provide an adequate record for review. The appellant shall determine whether the entire trial court record is complete, correct and otherwise perfected for presentation on appeal. ...”

       Practice Book § 64-1 (a) provides in relevant part: “The court shall state its decision either orally or in writing, in all of the following: (1) in rendering judgments in trials to the court in civil and criminal matters, including rulings regarding motions for stay of executions, (2) in ruling on aggravating and mitigating factors in capital penalty hearings conducted to the court, (3) in ruling on motions to dismiss under Section 41-8, (4) in ruling on motions to suppress under Section 41-12, (5) in granting a motion to set aside a verdict under Section 16-35, and (6) in making any other rulings that constitute a final judgment for purposes of appeal under Section 61-1, including those that do not terminate the proceedings. The court’s decision shall encompass its conclusion as to each claim of law raised by the parties and the factual basis therefor. If oral, the decision shall be recorded by a court reporter and, if there is an appeal, the trial court shall create a memorandum of decision for use in the appeal by ordering a transcript of the portion of the proceedings in which it stated its oral decision. The transcript of the decision shall be signed by the trial judge and filed in the trial court clerk’s office. ...”