author: Dupont, C. J. O’Connell, J.,

text:
    Theodore Kraus v. Irene Newton
    (5143)
    Dupont, C. J., Borden and O’Connell, Js.

      Argued December 1, 1987
    decision released June 7, 1988

      Herbert Watstein, for the appellant (plaintiff).

      F. Patrick O’Sullivan, for the appellee (defendant).
   Dupont, C. J.

The plaintiff appeals from the judgment rendered by the trial court upon the jury’s verdict for the defendant. The plaintiff claims that the trial court erred (1) in refusing to mark for identification a written statement made by the defendant, (2) in its jury charge regarding the duty owed the plaintiff by the defendant, and (3) in its jury charge on contributory negligence. We find no error.

The jury could reasonably have found certain relevant facts. On the morning of January 4, 1982, the plaintiff, a meter reader employed by Northeast Utilities, went to premises owned by the defendant to read the meter. Freezing rain had begun to fall the previous evening, and persisted at the time of the plaintiff’s arrival. The stairs and the handrail of the defendant’s premises were covered with ice. Upon descending the stairs, the plaintiff slipped and fell, suffering injuries.

The defendant testified that she did not place sand on the stairway or take any action to ameliorate the icy condition of the stairway, despite her knowledge of the storm, her proximity to the premises which were rented by her to others, and her knowledge that a meter reader was expected on or about the first of each month. There was also testimony that during hazardous weather conditions the plaintiffs employer gave him the discretion to discontinue his duties without threat of penalty or reprimand.

The plaintiff alleged in his complaint that his injuries were the result of the defendant’s negligence in failing to remedy or warn the plaintiff of the icy condition of the stairway. The defendant raised a special defense of contributory negligence, alleging that the plaintiff failed to exercise reasonable care in light of the hazardous weather conditions.

The plaintiff’s first claim of error is that the trial court erred in refusing to mark for identification a written statement of the defendant which was in the possession of the defendant’s counsel. During the plaintiff’s cross-examination of the defendant, the defendant stated that four years earlier she had signed a statement regarding the plaintiff’s fall. The plaintiff then requested that the defendant’s counsel produce a copy of the statement, and that the court mark it for identification. The defendant’s counsel objected. The plaintiff had previously made two unsuccessful requests for production of the statement, one pursuant to a pretrial motion for discovery and another earlier in the course of the trial. The court reiterated its earlier denial of the request for production and again ruled that the defendant did not have to produce the statement. The court also denied the plaintiff’s request to mark the statement for identification.

In its memorandum of decision denying the plaintiff’s motion to set aside the verdict, however, the court stated that it had erred in failing to mark the statement for identification. Consequently, the court ordered the defendant to produce the statement and, upon reviewing it, concluded that the failure to mark it for identification was harmless error. The trial court marked the statement as a court’s exhibit, and attached the statement to its memorandum of decision denying the plaintiff’s motion to set aside the verdict.

The plaintiff claims that the posttrial marking of an exhibit for identification was error, and argues that the failure to mark the statement during the trial prejudiced the plaintiff because it prevented him from offering it as a full exhibit. We believe, contrary to the concurring opinion, that the trial transcript demonstrates that the plaintiff did intend to offer the statement as a full exhibit. The defendant argues that the statement should not have been marked for identification but that even if it should have been, the error was harmless because the statement was inadmissible. She claims that since the statement is available for our review for a determination of whether it should have been admitted as a full exhibit, the plaintiff has not been harmed.

We recognize that a “trial court’s refusal to permit documents to be marked as exhibits for identification is ‘manifest error’ State v. Onofrio, 179 Conn. 23, 34, 425 A.2d 560 (1979); and that “the trial court must mark as an exhibit for identification anything offered by counsel.” (Emphasis in original.) State v. Silva, 201 Conn. 244, 253, 513 A.2d 1202 (1986). The rule articulated in Silva requires a trial court to mark for identification any item offered into evidence by counsel as an exhibit. The question is whether an item may be offered when the party offering it does not have possession or control of it. At the time the plaintiff attempted to have the statement marked for identification, it was not in his possession, and he had failed to obtain prior possession of it through motions for production. The general rule as articulated in State v. Silva, supra, concerning marking of documents does not necessarily require the offering party to have actual possession of the thing to be marked for identification.

In State v. Silva, supra, the trial court did not mark for identification material which was the subject of a subpoena duces tecum which had been quashed. The action of the trial court was upheld because the Supreme Court found that the motion to quash was properly granted because of the attorney-client privilege. The court stated that if the motion were properly granted, it would be conclusively established that the evidence was not discoverable and therefore not admissible at trial but if the motion to quash were improperly granted, the reviewing court would then be precluded from considering the probable effect of the evidence had it been admitted. In Silva, the court did not need to “decide whether the trial court erred in refusing to mark the summary as a sealed exhibit for identification, because under the circumstances we find that it properly granted the state’s motion to quash the subpoena duces tecum.” Id., 253-54.

The present case, unlike Silva, would have required a resolution by us of whether the trial court should have marked the statement for identification had the court not later made the statement a part of the record. Unlike the factual situation in Silva, we would otherwise have no way of determining whether the statement would have been admissible. This case is more nearly like Duncan v. McTiernan, 151 Conn. 469, 199 A.2d 332 (1964), than State v. Silva, supra. In Duncan, a witness for the plaintiff had been subpoened with his files. The files contained two documents signed by the defendant which the plaintiff sought to have marked for identification. The trial court ruled that the documents were not admissible and then refused to mark them for identification. It was held that it was error to refuse to mark them because without them, it could never be determined on appeal whether they should have been full exhibits. In the present case, the trial court had determined earlier in the trial that the statement did not have to be produced. In order to preserve a claim that an exhibit should have been admitted as a full exhibit, a party is required to have the exhibit marked for identification regardless of whether the offering party has it in his possession as long as it is reasonably apparent that the other party or a witness has it in his possession. See Carpenter v. Carpenter, 188 Conn. 736, 744-45, 453 A.2d 1151 (1982). Although we follow the general rule that all exhibits offered must be marked for identification, we do not imply that the rule gives a party unbridled leave to request anything to be marked for identification. The rule has obvious and practical limitations. Canton Motorcar Works, Inc. v. DiMartino, 6 Conn. App. 447, 455-57, 505 A.2d 1255, cert. denied, 200 Conn. 802, 509 A.2d 516 (1986).

The trial court should have allowed the statement to be marked as an exhibit. Although it did not, and its subsequent action was unusual, the result of the action was to make the appellate record whole and allows us to decide whether the plaintiff was harmed by the court’s refusal to mark it as an exhibit for identification during the trial.

The proffered exhibit states that the defendant did not know of the claim that the plaintiff had fallen on her property until one of her tenants told her of a letter received by the plaintiff’s counsel. It also states that another meter reader told her that the plaintiff had fallen on property “two houses down.” It gives the names of the two tenants who live at the premises owned by the defendant and upon which the plaintiff is alleged to have sustained injuries and indicates that the defendant lives elsewhere. The statement contains no contradictions useful for impeachment of the defendant’s court testimony. Even if the statement were admissible, we conclude that the plaintiff was not harmed by the court’s action.

The plaintiff also argues that the statement was never properly authenticated, and reasons that there is thus no assurance that the document acquired by the court after the trial is in fact the statement which the defendant had executed. The defendant’s voluntary submission of the signed document, however, may be construed as an admission by her of its authenticity. See C. McCormick, Evidence (3d Ed.) § 219; C. Tait & J. LaPlante, Connecticut Evidence § 10.2.

The plaintiff next claims that the trial court erred in instructing the jury (1) that the defendant had no duty to remedy the icy condition of the stairway until the freezing rainstorm had stopped, or a reasonable time thereafter, and (2) that a defendant has no duty to warn a plaintiff of conditions that are open and obvious.

Connecticut was one of the first states to hold that a landlord who knows or ought to know of a dangerous condition in a common passageway, caused by an accumulation of snow or ice, is bound to exercise reasonable diligence to remove the danger. Reardon v. Shimelman, 102 Conn. 383, 128 A. 705 (1925); see annot., 49 A.L.R.3d 387, 400 n.2. “An accumulation of ice or snow upon a common approach to a tenement house may impose upon the landlord a liability for injuries due to it, provided he knew, or in the exercise of a reasonable oversight ought to have known, of the existence of the dangerous condition and failed to exercise reasonable care to provide against injury by reason of it.” Reardon v. Shimelman, supra, 389. The issue of a landlord’s duty to remove snow or ice while a storm is in progress, however, is one of first impression in Connecticut.

The trial court’s charge to the jury, that a landlord has the duty to remove snow and ice from walkways within a reasonable time after a storm, comports with the well established rule of law in other jurisdictions. “[A] landlord, in the absence of unusual circumstances, is permitted to wait until the end of a storm, and is given a reasonable time thereafter to remove ice and snow from an outdoor entrance, walk, platform, or steps.” 49 Am. Jur. 2d, Landlord and Tenant § 822. See also Reuter v. Iowa Trust & Savings Bank, 244 Iowa 939, 57 N.W.2d 225 (1953); Isaacson v. Husson College, 297 A.2d 98 (Me. 1972); Mattson v. St. Luke’s Hospital of St. Paul, 252 Minn. 230, 89 N.W.2d 743 (1958); Goodman v. Corn Exchange National Bank & Trust Co., 331 Pa. 587, 200 A. 642 (1938); Langhorne Road Apartments, Inc. v. Bisson, 207 Va. 474, 150 S.E.2d 540 (1966). We hold that the court’s instructions were proper.

The trial court instructed the jury that the defendant had no duty to warn the plaintiff of an open or obvious condition. It did not err in doing so. “Warning an invitee against dangers which are either known to him or are so obvious to him that he may be expected to discover them is unnecessary. 65 C.J.S. 768-70, Negligence, § 63 (53); Restatement (Second), 2 Torts § 343A and comment (e).” Warren v. Stancliff, 157 Conn. 216, 222, 251 A.2d 74 (1968) (Alcorn, J., dissenting).

The plaintiff also alleges two errors in the trial court’s charge to the jury on the defendant’s special defense of contributory negligence. He claims (1) that it was error to charge the jury concerning assumption of risk, and (2) that it was error to charge the jury that the regulations of the plaintiff’s employer could be considered in determining whether the plaintiff was contributorily negligent. We find no merit to these arguments.

The trial court instructed the jury that it might consider the doctrine of assumption of risk in determining whether the plaintiff was contributorily negligent, even though assumption of risk “does not appertain in our law anymore.” The trial court then instructed the jury at length concerning the doctrine of comparative negligence.

General Statutes § 52-572h “abolish[ed] the harsh common law rule that the doctrines of contributory negligence, last clear chance and assumption of risk operated as a complete bar to recovery. ... In lieu of these doctrines, subsection (a) of § 52-572h sets forth a single standard: comparative negligence. In determining the relative negligence of each party, however, the factors relevant to the assumption of risk doctrine may be considered by the trier. As long as the jury is properly instructed concerning the doctrine of comparative negligence; General Statutes § 52-572h (b); elements involving the failure of the plaintiff to comprehend a risk may be specially pleaded and weighed by the trier in determining the propriety and totality of the plaintiffs conduct in relation to that of the defendant.” (Emphasis in original, citation omitted.) Wendland v. Ridgefield Construction Services, Inc., 190 Conn. 791, 797-98, 462 A.2d 1043 (1983).

It was not error for the trial court to charge the jury that the regulations of the plaintiffs employer could be considered in determining whether the plaintiff was contributorily negligent.

The defendant introduced into evidence the accident prevention manual of the plaintiffs employer which stated that “every employee should use great care in the performance of his duties.” The trial court clearly instructed the jury that this was not the standard of care that the plaintiff was required to use.

The regulations were an appropriate factor for the jury to consider in determining whether the plaintiff acted reasonably. “The standard of care remains the same — that which a reasonably prudent person would exercise under the same circumstances — but the amount or degree of care is dependent on the surrounding circumstances, and so it is ordinarily for the jury to say how much care should be used in a given situation.” Film v. Downing & Perkins, Inc., 135 Conn. 524, 526, 66 A.2d 613 (1949). See also Smith v. Leuthner, 156 Conn. 422, 424 n.2, 242 A.2d 728 (1968). The trial court’s instructions, considered as a whole, presented the case to the jury so that no injustice was done. Farley v. T.R.W., Inc., 4 Conn. App. 191, 193-94, 493 A.2d 268 (1985).

There is no error.

In this opinion Borden, J., concurred.

O’Connell, J.,

concurring. I agree with the majority that a document proffered as an exhibit and denied admission must be marked for identification in order to preserve it in the record for appellate review. I disagree, however, with the concept that the offering party need not have the document in his possession in order to proffer it as an exhibit for identification. Allowing a litigant to mark a document for identification when his opponent refuses to release such document from his possession, improperly subverts the exhibit marking procedure into a disclosure and production procedure.

The manner in which the proffering party came into possession of the document in question is irrelevant. The legal mechanisms for gathering evidence (e.g. subpoena duces tecum, motion for production) are independent of the exhibit marking rules.

In the present case, the document in question was in the defense counsel’s file when the plaintiff asked that it be marked for identification. The court’s power to order production continues throughout the course of the trial and, at this point, the court, upon request of the plaintiff, could have ordered the defendant to produce the document. The plaintiff did, in fact, make such a production request; it was, however, denied by the trial court. As the plaintiff has not appealed the denial of this production request, it is not before us.

Our Supreme Court’s ruling in Duncan v. McTiernan, 151 Conn. 469, 199 A.2d 332 (1964) is inapposite to the position of the majority. In Duncan, the documents had been subpoenaed and were first proffered and rejected as full exhibits. It was only after this rejection that counsel asked for the identification marking. The trial court erred in refusing the identification marking, as it deprived the profferer of a record, upon which the propriety of the trial court’s exclusion of the evidence as a full exhibit could be examined. With the exception of State v. Silva, 201 Conn. 244, 513 A. 2d 1202 (1986) (discussed infra), I could find no cases in which the request for an identification marking was not associated with an attempt to preserve the refusal of a proffer as a full exhibit. In the present case, it appears that the plaintiff did not intend to offer the statement as a full exhibit, but rather, stated at oral argument before this court, that he intended its use as an aid to his cross-examination.

State v. Silva, supra, presented a fact pattern similar to the present case in that the request to mark a document as an exhibit for identification did not follow a rejection of a proffer of the document as a full exhibit. Silva differs, however, because the requested identification marking was of a document brought to court by a witness in response to a subpoena duces tecum. Following the quashing of the subpoena duces tecum, the trial court refused the identification marking. The principal distinction between Silva and the present case is that in Silva a subpoena duces tecum, rather than a simple request for an identification marking,-was utilized as the legal device intended to cause production of the document.

In the present case, the majority examined the document and determined from its contents that it would not have been admissible in evidence, and that therefore the trial court’s error in refusing to mark it for identification was harmless. This implies that if the document had been admissible, the court would have committed reversible error by refusing to mark it for identification. This analysis leads to the establishment of a rule which would provide that the marking of an exhibit for identification would depenu upon its admissibility as a full exhibit. This would be a substantial change in the current law. See C. Taic & J. LaPlante, Connecticut Evidence (2d Ed.) § 3.5.5 (d). Furthermore, the rules of practice expressly provide that the propriety of an order for production does not depend upon the admissibility of the material requested. Practice Book § 218.

Additionally, I do not wish to lend my approbation, sub silentio, to the trial court’s posttrial procedure of requesting that a party mail a document to the court, marking it for identification and including it as part of the record. This request was made after the trial had been completed, the verdict rendered, and a motion to set aside the verdict argued. See Izzo v. Crowley, 157 Conn. 561, 566, 254 A.2d 904 (1969); LaPre v. Nibo Films, Ltd., 10 Conn. App. 669, 675-76, 525 A.2d 140 (1987).

Accordingly, I concur with the result reached by the majority but do not agree with the analysis of the claim of error relating to the marking of an exhibit for identification.

       These rulings are not questioned in this appeal.

       Ordinarily it is reasonably apparent that a party or witness has a given item in his possession because the item is the subject of a subpoena duces tecum.

       The trial court’s charge to the jury stated in pertinent part: “Under certain circumstances a landowner can be liable to a person on his property for a dangerous accumulation of ice and snow. The rule of law is that an owner may await the end of a freezing rain or sleet storm and a reasonable time thereafter before removing ice and snow from its outside entrance, walks, platforms, and steps. Then, an owner may, without violating its duty to exercise reasonable care for the safety of business invitees, await the end of a freezing rain, sleet or snow storm or a reasonable time thereafter before removing sleet and snow from its outside walk and steps since removal would be ineffective, generally, during the continuation of a snowstorm in progress. ... It is a duty of a person to be watchful of their surroundings and to exercise ordinary care both to avoid dangers known and to discover dangers that are readily available — readily foreseeable. Of course, in conjunction with your considerations of the duty on people to warn, you might want to consider that if a condition is open and obvious to a person using ordinary intelligence, then there really can be no duty upon a defendant to warn the plaintiff about it. . . .”

       The trial court instructed the jury as follows: “Now, you have heard reference to — and there is an exhibit that is part of the regulations of the employer of the plaintiff and there is reference in that exhibit to — I think the employer says employee shall use great care. Now, that’s not the standard of care under our law but that is a standard that the plaintiffs employer has imposed upon his employees and it’s a fact that you may consider in your total consideration as to whether or not the plaintiff at the time the incident happened, was acting as an ordinarily prudent man or whether he was, in fact, negligent in one or more of the ways as alleged in the special defense.”

       I recognize, of course, that this is not true of unconstitutionally seized material offered in a criminal prosecution. U.S. Const., amend. IV; Conn. Const., art. I, § 8.

       Defense counsel does not admit that the statement was in his file but conceded that for purposes of this argument it may be considered as “arguably in his file.” This opinion is based on that concession.

       We also note that the only prior production denial has not been appealed.

       The pertinent part of Practice Book § 218 provides: “It shall not be ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” (Emphasis added.)


source: Caselaw Access Project

author: Stoughton, J.

license: Public Domain

text:
    State of Connecticut v. Ramon Rodriguez
    (6066)
    Borden, O’Connell and Stoughton, Js.
    Argued January 5
    decision released June 7, 1988

      A. A. Washton, with whom was Peter W. Rotella, for the appellant (defendant).

      John F. Cocheo, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, Sr., state’s attorney for the appellee (state).
   Stoughton, J.

The defendant appeals from a judgment of conviction rendered following a conditional plea of nolo contendere entered pursuant to General Statutes § 54-95a. We find no error.

On September 29, 1986, four members of the statewide narcotic task force were patrolling an area in New London in which there had been a high incidence of drug activity. As they drove through the area, they came upon a small group of persons on the sidewalk who were drinking from a quart beer bottle in apparent violation of a local ordinance. The driver stopped the car, and one of the officers got out to talk to the persons who were drinking on the public street. As he approached the group, he saw the defendant and another man some ten to twenty feet away. The officer observed that when the defendant and the other man saw him, they ran up an alleyway. The officer followed the two men and he saw the defendant’s companion lean down and throw a container under a porch. On the basis of his four years of experience in narcotics investigations, the officer believed that the object contained drugs and he called to the other officers for assistance. He told the defendant to stay where he was, told one of the other officers who had arrived at the scene what had happened, and told him to watch the two men while he crawled under the porch to retrieve what had been thrown there. The alleyway was a closed, narrow area. When the other officer came up to the two men, he instructed them to put their hands on the wall. The other man complied, but the defendant turned away with his fists clenched. The officer could not see what the defendant had in his hands and was concerned for his own safety, having discovered weapons under similar circumstances in the past. He grabbed the defendant’s fists and discovered that the defendant was holding a packet containing glassine bags. He tried to seize the packet which he recognized as a common one for carrying narcotics, but the defendant threw it away. He turned the defendant over to another officer and retrieved the packet which contained four glassine bags of white powder and four paper folds of white powder.

The defendant claimed that he had been arrested without a warrant and without probable cause, and that his arrest was tainted by an illegal search and seizure. He claimed that the warrantless seizure of items was done without probable cause and without an articulable reason to suspect criminal activity on his part. The court denied his motions to dismiss the information and to suppress certain evidence. Thereafter, the defendant entered a conditional plea of nolo contendere to a charge of possession of heroin with intent to sell in violation of General Statutes § 21a-277 (a). Judgment of conviction was rendered and this appeal followed.

The defendant claims that the court erred in denying his motion to suppress and to dismiss. He claims that the initial pursuit of the defendant and his companions constituted a “seizure” by the police and was improper because they did not have a reasonable and articulable suspicion to justify the stop.

The defendant claims that when the police began to pursue him and his companion, they lacked a reasonable and articulable basis to conclude that criminal activity was afoot. Thus, the defendant argues, the police lacked the requisite reasonable suspicion which is constitutionally required to justify the stop according to the doctrine enunciated in Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). He claims that his subsequent act of throwing the packet was in direct response to the unjustified “seizure,” which occurred the moment the police began to pursue him, and thus should have been excluded as the fruit of the officer’s illegal action. We disagree.

We know of no Connecticut case, nor has any been cited to us, that holds that merely following another, absent any show of force or authority or direction to halt, constitutes a stop within the meaning of the fourth amendment. The defendant relies heavily on a Michigan case, People v. Shabaz, 424 Mich. 42, 378 N.W.2d 451 (1985). There, two police officers observed a defendant walking down a dark street at night. When the defendant noticed the plainclothes officers drive by in an unmarked car, he put a paper bag in his vest and walked more quickly. When the officers slowed down, the defendant broke into a run and one of the officers alighted from the car and pursued him. In finding that the contents of the bag ought to be suppressed, the court wrote: “Although defendant divested himself of the bag prior to the officer’s actually taking physical hold of him, the pursuit itself by the officers was effectively the seizure of the defendant. . . . Defendant’s divestment of the bag was in direct response to his unjustified seizure.” Id., 66. The dissent noted that the issue of whether the pursuit in this case constituted a seizure has not yet been authoritatively resolved by any decision of the United States Supreme Court.

In State v. Williamson, 10 Conn. App. 532, 524 A.2d 655, cert. denied, 204 Conn. 801, 525 A.2d 965 (1987), this court held that the fourth amendment was implicated under the Terry standard when an officer identified himself to a defendant who was running away and ordered the defendant to halt. “Were it otherwise, the officer could use the suspicious conduct which he himself induced as evidence that the defendant was acting suspiciously.” Id., 540. Even if we accept, arguendo, that under certain circumstances pursuit may constitute a seizure, there is no indication that the action of the police in the present case can properly be characterized as a “pursuit.” From the testimony adduced at the hearing, the officer approached a group of people and, in doing so, saw the defendant and his companion approximately ten to twenty feet away in an alley. When the two men noticed the officer, they ran away. The officer elected to follow and to ignore the group that he initially sought to investigate. At this point, the officer gave no indication that he was a law enforcement officer nor did he direct the two men to halt or to stop running. There is no indication that the two men were even aware that the officer was following them when the defendant’s companion discarded the container. The short span of time in which the transaction occurred, judging from the testimony of the officers, indicates that the flight and the subsequent behavior of the defendant in discarding the object was essentially contemporaneous and most probably induced by the very presence in the area of the officer, rather than because of any pursuit.

Suspicious, furtive conduct such as flight may create a reasonable suspicion that criminal activity is afoot. State v. Paoletto, 181 Conn. 172, 182, 434 A.2d 954 (1980). Moreover, the officer was properly allowed to testify that the defendant was in an area noted for a high level of drug activity. The nature of the area in which a stop occurs is a factor to be considered in the evaluation of whether an officer’s suspicion was reasonable. State v. Williamson, supra, 541. The officer acted reasonably in following the defendant. When he observed the defendant’s companion toss away a packet of what appeared to be narcotics, he was entirely justified in seizing the defendant. When a police officer investigating the violation of a city ordinance notices that persons appear startled at his presence and run away, and elects to follow without any show of authority or direction to stop, he has not seized those persons. The officer was justified in following the two men, without accosting them, to determine what was occurring. We decline to speculate on the subjective intentions of the officer who elected to follow the defendant initially. Unless the officer signalled the defendant to stop or impeded his movement in any way, the defendant was not seized. Neither the defendant’s fourth amendment rights nor his state constitutional rights were implicated at that point. See Commonwealth v. Groves, 25 Mass. App. 933, 935, 517 N.E.2d 172 (1978).

There is no error.

In this opinion the other judges concurred.

       The United States Supreme Court has granted certiorari in another Michigan case involving the same issue. Michigan v. Chesternut, 157 Mich. App. 181, 403 N.W.2d 74 (1986), cert. granted, U.S. , 108 S. Ct. 1975, 98 L. Ed. 2d 185 (1987). We also note that at least three other states have addressed this issue. See State v. Saia, 302 So. 2d 869 (La. 1974), cert. denied, 420 U.S. 1008, 95 S. Ct. 1454, 43 L. Ed. 2d 767 (1978) (seizure); Commonwealth v. Thibeau, 384 Mass. 762, 429 N.E.2d 1009 (1981) (seizure); State v. Sheffield, 62 N.J. 441, 303 A.2d 68 (1973) (no seizure).


text:
    Nancy Sylvia v. Westport Bank and Trust Company
    (5639)
    Dupont, C. J., Borden and Stoughton, Js.
    Argued February 9
    decision released June 7, 1988

      Laurie B. Perzley, with whom was Richard J. Diviney, for the appellant (defendant).

      Ralph C. Crozier filed a brief for the appellee (plaintiff).
   Stoughton, J.

This is an appeal by the defendant from a judgment rendered pursuant to General Statutes § 52-381 on a scire facias action against the defendant as garnishee and in favor of the plaintiff.

The plaintiff had commenced a civil action against her former husband, William Sylvia, for arrearages in support payments. In connection with this suit, the plaintiff also filed an application for prejudgment remedy under General Statutes § 52-278c and 52-329 seeking to garnish an inheritance from the estate of her former husband’s deceased grandmother. The defendant, Westport Bank and Trust Company, was the administrator of the estate.

On June 22, 1984, copies of the plaintiff’s prejudgment remedy application, unsigned writ, summons and complaint, order of notice of hearing and proposed garnishment order were served upon James L. Bradley, the defendant’s assistant treasurer and the manager of its main office. The order of notice of hearing contained a temporary restraining order enjoining the bank “from transferring . . . the property described in said application until said hearing and further order of this court. ” (Emphasis added.) It also directed that notice be given to “the garnishee, Westport Bank & Trust Company, Trust Department 5177, Westport, Connecticut, by some proper officer on or before 7-11-81 . . . . ” Bradley was manager of the defendant’s main office, but was in no way connected with the trust department. It is undisputed that no hearing was ever conducted and that the garnishment order which accompanied the plaintiff’s prejudgment application was never signed by the court. No other action was taken by the court on the prejudgment remedy application.

On September 6, 1985, the estate administered by the defendant was fully and finally settled by the distribution of $40,020.49 to William Sylvia’s attorney. On June 6, 1986, the plaintiff obtained a judgment against her former husband in her civil action. An execution of this judgment against William Sylvia and the defendant, as garnishee of funds of the estate, was issued on July 2, 1986, and was returned unsatisfied. Thereafter, the present scire facias proceeding was commenced. The defendant appeals from the judgment for the plaintiff in that proceeding, and maintains that the court erred in holding the defendant liable as garnishee pursuant to General Statutes § 52-381. We agree.

General Statutes § 52-278a (d) defines a prejudgment remedy as “any remedy or combination of remedies that enables a person by way of attachment, foreign attachment, garnishment or replevin to deprive the defendant in a civil'action of . . . his property prior to final judgment but shall not include a temporary restraining order. ” (Emphasis added.) Any liability the defendant had to the plaintiff in a scire facias action is controlled by General Statutes § 52-381. This statute provides that “[i]f judgment is rendered in favor of the plaintiff in any action by foreign attachment, all the effects in the hands of the garnishee at the time of the attachment . . . shall be liable for the payment of such judgment.” The statute presumes a garnishment is effected. Thus, only if the defendant were properly garnisheed would it be liable under that statute. “No prejudgment remedy is available to a person in any action unless that person has complied with the provisions of General Statutes §§ 52-278a through 52-278g ...” Essex Group, Inc. v. Ducci Electric Co., 181 Conn. 524, 525, 436 A.2d 16 (1980).

The sole issue becomes whether the temporary restraining order, if we assume that it was properly served upon the defendant, had the effect of creating liability as garnishee on the defendant’s part pursuant to General Statutes § 52-381. We hold that it did not. A temporary restraining order is a mechanism by which the status quo is maintained between the time an application for prejudgment remedy is filed and the time set for a hearing on that motion. It is expressly excluded by statute from the definition of a prejudgment remedy. General Statutes § 52-278a (d). Fermont Division v. Smith, 178 Conn. 393, 398, 423 A.2d 80 (1979). The plaintiff urges that since the temporary restraining order was never dissolved, it prevented the bank from legally transferring the funds. To affirm the judgment on this ground, however, would be to give a temporary restraining order the status of prejudgment remedy. This we will not do.

There is error, the judgment is set aside and the case is remanded with direction that judgment be rendered for the defendant.

In this opinion the other judges concurred.


author: Per Curiam.

text:
    George Drake et al. v. Planning and Zoning Commission of the Town of Stratford et al. Anna Stick et al. v. Planning and Zoning Commission of the Town of Windsor Locks Frank R. Wood v. Planning and Zoning Commission of the Town of East Hartford Daughters of St. Paul, Inc. v. Zoning Board of Appeals of the Town of Trumbull
    (6277) (6716) (6428) (6278)
    Dupont, C. J., Borden, Spallone, Daly, Bieluch, O’Connell, Stoughton, Norgott and Foti, Js.
    Decision released May 25, 1988
   Per Curiam.

The appellees in all of these cases have moved to dismiss the pending appeals for lack of subject matter jurisdiction under the principles enunciated in Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987), affirmed on rehearing, Simko v. Zoning Board of Appeals, 206 Conn. 374, 538 A.2d 202 (1988) (en banc). None of the motions was orally argued before this court.

Simko I and II relate to the jurisdiction of the Superior Court. This court has jurisdiction to determine whether the Superior Court had subject matter jurisdiction to hear each of these cases. Since this court does have such jurisdiction, the motions to dismiss in this court must be denied. We need not, therefore, now decide the question of whether the Superior Court did or did not have jurisdiction. That question must be decided on the record, after briefs have been filed, and oral argument, if any, has been had. Nor do we decide whether Section 3 of Public Acts 1988, No. 88-79, would provide jurisdiction in the Superior Court, assuming that Simko I and II would otherwise have required affirmance by us of the dismissal in the Superior Court.


text:
    J. Gregory Hickey v. Zoning Board of Appeals of the Town of Old Lyme William Spicer, Jr., et al. v. Zoning Commission of the Noank Fire District Richard Chapman v. Zoning Commission of the Town of North Stonington et al. Marion Stanavage v. Zoning Board of Appeals of the Town of Colchester Paul R. Beckman et al. v. Planning and Zoning Commission of the Town of Killingworth Terrence McKenna et al. v. Planning and Zoning Commission of the Town of Stonington Downes-Patterson Corporation v. Planning and Zoning Commission of the Town of Stonington Wells Pond Wildlife Preserve et al. v. Planning and Zoning Commission of the Town of Wethersfield et al. John Errichetti v. Planning and Zoning Commission of the Town of Watertown High Meadow Associates v. Planning and Zoning Commission of the Town of Watertown Gary Widlitz et al. v. Planning and Zoning Commission of the Town of Killingworth Jeanette Lecardo et al. v. Zoning Board of Appeals of Stratford et al. Liberty Ridge Associates v. Planning and Zoning Commission of the Town of Chester John Nemczuk et al. v. Planning and Zoning Commission of the Town of Lisbon GAM, Inc. v. Planning and Zoning Commission of the Town of Stonington Mark Mukon v. Zoning Board of Appeals of the Town of East Hampton

      (PAC 87-051) (PAC 87-054) (PAC 87-057) (PAC 87-056) (PAC 87-072) (PAC 87-076) (PAC 87-077) (PAC 87-079) (PAC 87-064) (PAC 87-065) (PAC 87-066) (PAC 87-067) (PAC 87-068) (PAC 87-069) (PAC 87-074) (PAC 87-075) (PAC 87-078) (PAC 87-080) (PAC 87-083) (PAC 87-081)
    Dupont, C. J., Borden, Spallone, Daly, Bieluch, O’Connell, Stoughton, Norcott and Foti, Js.
    Decision released May 25, 1988
   Per Curiam.

Each of these zoning appeals was dismissed in the Superior Court as jurisdictionally defective under Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987), affirmed on rehearing, Simko v. Zoning Board of Appeals, 206 Conn. 374, 538 A.2d 202 (1988) (en banc). A petition for certification was filed in this court in each case. Under our supervisory powers pursuant to Practice Book § 4183, we deny each of the petitions, without prejudice to the refiling of them at a later date. We do so in order to allow the petitioners to pursue any rights afforded to them by Section 3 of Public Acts 1988, No. 88-79. Our denials of these petitions without prejudice are not intended to be final judgments under Section 3 of Public Acts 1988, No. 88-79.


author: Foti, J.

text:
    State of Connecticut v. Herbert Johnson, Jr.
    (5198)
    Borden, Stoughton and Foti, Js.
    Argued March 4
    decision released June 7, 1988

      Michael J. McClary, with whom was Hugh F. Keefe, for the defendant (appellant).

      Harry Weller, deputy assistant state’s attorney, with whom, on the brief, were Arnold Markle, state’s attorney, and Jack Fisher, law student intern, for the appellee (state).
   Foti, J.

The defendant appeals from a judgment of conviction, after a jury trial, of assault in the second degree in violation of General Statutes § 53a-60 (a) (2).

The defendant claims on appeal (1) that his federal and state constitutional rights to assistance of counsel were denied, (2) that the court erred in taking judicial notice of a psychiatrist’s objection to the presence of defense counsel during a court-ordered psychiatric evaluation of the defendant, (3) that there was insufficient evidence on the elements of the use of a dangerous instrument and intent to cause bodily injury to find him guilty of the crime charged beyond a reasonable doubt, and (4) that his federal and state rights to a fair trial were denied as a consequence of the state’s failure to disclose discoverable material.

The jury could reasonably have found the following facts. The defendant, a West Haven police officer, was employed in a second job as a security officer for the Casino Restaurant and Bar in West Haven at the time of the assault. At approximately 2 a.m. on the morning of the assault, the bar’s doorman began directing the patrons to leave because it was closing time. The victim, a patron, refused to leave and began verbally abusing the doorman. The defendant came to the doorman’s assistance and the two attempted to remove the victim from the bar. Once outside, the victim became violent and began fighting with the defendant. The victim struck the defendant, knocking him to the ground and breaking the defendant’s eyeglasses. Two bystanders and two off-duty West Haven police officers finally subdued the victim and placed him face down on the ground with his hands cuffed behind him. The victim asked the defendant if he could go home. The defendant told him to “shut up,” shouted obscenities at him and then kicked him with substantial force in the area of the right temple and neck.

The facts relevant to each of the defendant’s claims of error are discussed seriatim.

I

The defendant’s first claim is that his state and federal constitutional rights to assistance of counsel were violated because the court denied his motion to have counsel present during the court ordered psychiatric examinations. The facts relevant to this claim are as follows. The defendant filed a notice with the court that he intended to introduce expert testimony bearing on whether he was capable of forming the requisite mens rea to commit the crime charged. The state subsequently moved, pursuant to Practice Book § 760, for a court ordered psychiatric examination of the defendant. The defendant’s attorney made an oral motion to be present at any court ordered examinations. The court denied the defendant’s motion. At trial, the defendant objected to the admissibility of testimony offered by the state given by two psychiatrists, John Cegalis and Howard Zonana, who conducted the court ordered psychiatric examinations of the defendant. The defendant contended, at trial, that the examinations and subsequent testimony regarding the findings of those examinations violated his right against self-incrimination. The court denied the defendant’s motion to exclude the testimony, concluding that Practice Book § 760 protected the defendant’s right against self-incrimination because § 760 prohibits the use of any statement made during the examination to the extent that the statement bears on an issue of guilt.

The defendant contends that he was denied his right to counsel under the sixth amendment to the United States constitution because the psychiatric examinations ordered by the state constituted a critical stage of the prosecution. The defendant also claims that he was denied his separate state constitutional right to counsel by these actions. We will consider these claims of error under the Evans bypass rule. State v. Flynn, 14 Conn. App. 10, 21-22, 539 A.2d 1005 (1988).

We first consider the defendant’s claim made under the federal constitution. The sixth amendment right to counsel is implicated (1) whenever the defendant is required to make a decision requiring distinctively legal advice, or (2) where the defendant must defend himself against the direct onslaught of the prosecutor. United States v. Ash, 413 U.S. 300, 310, 93 S. Ct. 2568, 37 L. Ed. 2d 619 (1973).

Neither condition exists here. At the time the defendant decided to put his mental state in issue he was represented by counsel. His counsel was acutely aware of the likelihood that the court would order a psychiatric examination of the defendant as provided by Practice Book § 760. Prior to the examinations conducted by Zonana and Cegalis, the defendant had seen his own psychiatrist approximately eighty times. “[A]t the [court-ordered] psychiatric interview itself, [the defendant] was not confronted by the procedural system; he had no decisions in the nature of legal strategy or tactics to make . . . . ” United States v. Byers, 740 F.2d 1104, 1118 (D.C. Cir. 1984). In fact, § 760 expressly protects a defendant from the use of statements made at such interviews for purposes other than evaluating competency. “No statement made by the defendant in the course of any examination provided for by Sec. 757, whether the examination shall be with or without the consent of the defendant, shall be admitted in evidence against the defendant on the issue of guilt in any criminal proceéding.”

In concluding that § 760 protects the defendant’s sixth amendment right to assistance of counsel, we find the reasoning of the United States Court of Appeals for the Second Circuit in United States v. Baird, 414 F.2d 700 (2d Cir. 1969), persuasive. In Baird, the court concluded: “Bearing in mind that the purpose of the examination was to qualify the Government’s expert and furnish him with a basis for an opinion as to the accused’s mental condition to which the expert could testify at the trial; that statements made to him by the accused could not be used on the issue of guilt or innocence of committing the offenses and were to be treated only as verbal acts from which the expert’s opinion was drawn; and that the accused had no privilege to refuse to answer the alienist’s questions, the examination did not constitute the kind of critical stage in the proceedings at which the assistance of counsel was needed or at which counsel could make a useful contribution. In fact, the presence of a third party, such as counsel or a stenographer, at such an examination tends to destroy the effectiveness of the interview.” Id., 711.

Even if the defendant’s counsel were to sit in absolute silence or remain in an adjoining room, with the defendant aware of his presence, the effectiveness of the psychiatric interview could be materially impaired. An attorney’s presence in a purely observational capacity without ability to advise or object has “no relationship to the Sixth Amendment’s ‘Assistance of Counsel.’ ” United States v. Byers, supra, 1120.

“Whatever the feasibility of such a practice, we can find no basis for it in the Sixth Amendment. Its only utility would be to record events (the precise questions of the psychiatrist and the precise responses to the defendant) that are otherwise difficult to reconstruct. But as [United States v. Ash, 413 U.S. 300, 93 S. Ct. 2568, 37 L. Ed. 2d 619 (1973)] made completely clear, ‘lack of scientific precision and inability to reconstruct an event are not the tests’ for application of the Sixth Amendment guarantee.” United States v. Byers, 1120-21. We conclude, therefore, that the court-ordered examination conducted pursuant to § 760 did not implicate the sixth amendment right to counsel.

The defendant’s claim that Zonana was a professional adversary for the state, making Zonana’s examination a confrontation in violation of the defendant’s federal and state constitutional rights to counsel, is meritless. Here, we find the reasoning of United States v. Byers, supra, persuasive. “An examining psychiatrist is not an adversary, much less a professional one. Nor is he expert in the relevant sense — that is, expert in ‘the intricacies of substantive and procedural criminal law.’ Kirby v. Illinois, 406 U.S. 682, 689, 92 S. Ct. 1877, 1882, 32 L. Ed. 2d 411 (1972).” United States v. Byers, supra, 1119.

The defendant’s claim that he should have had counsel present during the psychiatric interview because the psychiatrists chosen by the state were biased is also without merit. “The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution ‘to be confronted with the witnesses against him.’ This right is secured for defendants in state as well as federal criminal proceedings under Pointer v. Texas, 380 U.S. 400, [85 S. Ct. 1065, 13 L. Ed. 2d 923] (1965) .... Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, 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, 315-16, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974).

When the claim is that the testimony of a particular witness is defective either because of bias or loss of memory, then that defect is properly exposed by an unrestrained cross-examination of the witness. See Delaware v. Fensterer, 474 U.S. 15, 18-20, 106 S. Ct. 292, 88 L. Ed. 2d 15 (1985); State v. Ortiz, 198 Conn. 220, 224-25, 502 A.2d 400 (1985). If Zonana was biased, as the defendant claims, the defendant had ample opportunity to expose that defect through cross-examination of Zonana at trial.

The defendant’s next claim is that he was denied his state constitutional right to assistance of counsel when the court denied his motion to have counsel present during the court ordered psychiatric examinations. The defendant contends that article first, § 8, of the Connecticut constitution, which provides, in relevant part, that “[i]n all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel . . . .’’guarantees a right to counsel during court ordered psychiatric examinations.

Though our Supreme Court has concluded that we have the power to construe the Connecticut constitution to provide broader protections than those guaranteed by the federal constitution; State v. Kimbro, 197 Conn. 219, 234-35, 496 A.2d 498 (1985); such a construction is only warranted where the defendant has proffered a convincing argument that the rights afforded him by the state constitution are distinguishable from those guaranteed by the federal constitution. State v. Alexander, 197 Conn. 180, 183 n.1, 496 A.2d 486 (1985); State v. Braxton, 196 Conn. 685, 688 n.2, 495 A.2d 273 (1985); State v. Perez, 10 Conn. App. 279, 281 n.3, 523 A.2d 508, cert. denied, 203 Conn. 810, 525 A.2d 524 (1987); see also State v. Gethers, 197 Conn. 369, 497 A.2d 408 (1985).

In Gethers, our Supreme Court was asked to construe article first, § 8, to guarantee a criminal defendant’s right to a hybrid representation which would allow the defendant both to represent himself and to have counsel represent him. In rejecting the construction proffered, the Gethers court first looked to the plain language of the constitution and found no basis for concluding that the state constitution provided broader protection than the federal constitution. Id., 386. We conclude, similarly, that the plain language of article first, § 8, guarantees counsel during the actual prosecution of the case, and it is the federal constitution which has expanded that right to other stages of process. See, e.g., United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967); Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963).

After finding no basis for the proffered construction in the express language of the constitution, the court in Gethers then turned its attention to the construction adopted by other states with clauses similar to article first, § 8, of the Connecticut constitution. The court rejected the proffered construction in part because it found only one state which had given a broader interpretation to that clause. State v. Gethers, supra, 387. Here, we are similarly persuaded by the lack of authority from other states supporting the construction proposed by this defendant. Thus, the defendant has failed to articulate a basis for persuading this court to conclude that article first, § 8, guarantees a right to counsel during court ordered psychiatric examinations which is. distinguishable from the federal constitutional protection.

Finally, we decline to reach the defendant’s claim that, because General Statutes § 54-56d provides for the presence of defense counsel at an examination conducted to determine competency of a criminal defendant to stand trial, Practice Book § 760 should be similarly construed. There is no record of this claim being raised at trial. It is not of constitutional dimension; State v. Thurman, 10 Conn. App. 302, 306-307, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987); and is, therefore, not reviewable under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).

II

The defendant’s second claim is that he was denied his state and federal constitutional right to confront witnesses against him because the court took judicial notice of Zonana’s standing objection to the presence of counsel during a court ordered psychiatric examination. After a review of the record and the defendant’s brief, we are unable to find any basis for the defendant’s claim that he was unable to confront Zonana, who testified at trial and was cross-examined by counsel for the defendant.

The confrontation clause does not guarantee the defendant the cross-examination he wishes. The confrontation clause is satisfied when defense is given the opportunity to expose infirmities on cross-examination. State v. Yednock, 14 Conn. App. 333, 541 A.2d 887 (1988). We are not persuaded, from the record before us, that the defendant was denied an opportunity to conduct a complete and effective cross-examination of the psychiatrist.

Ill

The defendant’s third claim is that the state failed to present sufficient evidence of the use of a dangerous instrument and of the occurrence of bodily injury for the jury to convict the defendant of second degree assault. We will consider these claims together as they both challenge the sufficiency of evidence.

The jury heard testimony from several witnesses who variously described the defendant’s act of kicking the victim, who was lying on his stomach with the left side of his face on the ground and his hands cuffed behind his back, as a good solid kick that sounded like an arm breaking; as picking up his foot and bringing it down on the victim’s right temple, cheek and forehead; and as taking a step and kicking the victim in the head.

The defendant concedes that the jury could reasonably have found that the defendant intended to cause physical injury to the victim. The defendant contends, however, that the state failed to offer sufficient proof that the defendant’s shod foot was used as a dangerous weapon.

A dangerous instrument is “any instrument, article or substance which under the circumstances in which it is used ... is capable of causing death or serious physical injury . ” General Statutes § 53a-3 (7); State v. Frazier, 7 Conn. App. 27, 39, 507 A.2d 509 (1986); see also State v. Killenger, 193 Conn. 48, 54 n.4, 475 A.2d 276 (1984) (flashlight used in such a way as to fall within the definition of dangerous instrument).

The defendant also claims that there was insufficient evidence for the jury to conclude that the defendant’s act of kicking the victim actually caused any physical injury. In order to meet its burden, the state was required to prove that the defendant’s act caused “impairment of physical condition or pain.” General Statutes § 53a-3 (3). On this element of the crime charged, the jury heard evidence that the victim was conscious after being subdued and, prior to the assault, asked the defendant if he could go home. The defendant refused and then kicked the victim in the area of the temple and neck. The witnesses testified that the victim lost consciousness after he was kicked and that there was an abrasion on the victim’s face consistent with the kick.

“The standard that applies when a jury verdict is challenged for insufficiency of the evidence is well set-tied. The issue is whether the jury could reasonably have concluded, upon the facts established and inferences reasonably drawn therefrom, that the defendant was guilty beyond a reasonable doubt. State v. Baskins, 12 Conn. App. 313, 316, 530 A.2d 663 (1987). ‘The evidence must be given a construction most favorable to sustaining the jury’s verdict.’ State v. Carter, 196 Conn. 36, 44, 490 A.2d 1000 (1985); see State v. Monk, 198 Conn. 430, 432, 503 A.2d 591 (1986). Every element of the crime charged must be proved, and, although it is in the province of the jury to draw logical inferences from the facts proven, they may not resort to speculation. State v. Baskins, supra.” State v. Robinson, 14 Conn. App. 40, 42, 539 A.2d 606 (1988).

In reaching conclusions from the totality of the evidence presented; State v. Simino, 200 Conn. 113, 116-17, 509 A.2d 1039 (1986); the jury is permitted to apply its own experience and common sense. See State v. Sullivan, 11 Conn. App. 80, 96, 525 A.2d 1353 (1987); State v. Perez, supra, 291.

We conclude that, after hearing all of the evidence, the jury could reasonably have concluded that the defendant’s act of kicking the victim with his shod foot was, under the circumstances, the use of a deadly instrument. We also conclude that the jury could reasonably have concluded that the kick inflicted by the defendant was sufficient to cause, and did in fact cause, either impairment of the victim’s physical condition or pain.

IV

The defendant also claims that he was denied his federal and state constitutional rights to a fair trial. In particular, the defendant contends that the state’s failure to disclose to his attorney the fact that the court ordered psychiatric examination by Zonana had been videotaped and that the defendant had signed a consent form for that videotaping, violated his federal constitutional right to a fair trial, and violated rights protected by article first, § 8, of the Connecticut constitution, and also that he was denied his right to discoverable material protected by our rules of practice and the general statutes.

In the defendant’s supplemental brief, which is limited to this issue, the defendant recounts in exhaustive detail his pretrial discovery motions and argues that these motions encompass the videotape and consent form, both of which he claims constitute exculpatory evidence. It is uncontested that this material was not specifically disclosed to the defendant’s counsel until after his trial and conviction. From these facts, the defendant argues that the state deliberately suppressed the videotapes and consent form in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

Although the defendant has expended considerable energy on this claim, we must conclude that it is controlled by the simple proposition that, if the defendant has personal knowledge of facts or evidence, that information is not suppressed because the state has not disclosed it to the defendant before trial. It is only if the state is in possession of evidence which is unknown to the defendant, that a claim can be made that the state suppressed the evidence. State v. Perez, 181 Conn. 299, 309, 435 A.2d 334 (1980); see also State v. Simms, 201 Conn. 395, 407, 518 A.2d 35 (1986) (state’s failure to produce the psychiatric records of a witness it called was not a violation of Brady v. Maryland because the information was a matter of public record available to the defendant); State v. Dolphin, 195 Conn. 444, 455-56, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985). It is undisputed that the defendant knew Zonana was videotaping the psychiatric examination, and that before the examination he signed a form purporting to consent to such videotaping.

The defendant contends that the facts of this case are unique and, therefore, are not controlled by State v. Perez, 181 Conn. 299, 435 A.2d 334 (1980). We do not agree. The defendant claims that because of his impaired psychological condition, this court should not consider him to have had personal knowledge of the videotapes and consent form. Yet, at no time prior to or during trial did the defendant contest his competency to stand trial on the grounds that he was incapable of assisting in his own defense. See State v. DeAngelis, 200 Conn. 224, 227-29, 511 A.2d 310 (1986). Nor is the defendant now claiming that he was not competent to stand trial. Rather, the defendant claims that he was incompetent only with regard to his ability to inform his attorney that the videotapes and the consent form existed. If this court were to adopt a rule which permitted a defendant to claim competency to stand trial, but selective incompetency as it affected aspects of pretrial and trial proceedings which resulted in unfavorable results for the defendant, then the elaborate safeguards established to guarantee that those who stand trial are in fact competent would be meaningless. Either the defendant was competent to stand trial, in which case he could assist in his own defense, or he was incompetent. The defendant does not claim the latter. We must conclude, therefore, that he was capable of assisting in his own defense, including informing his attorney that the videotapes and consent form existed.

The defendant next claims that even if his federal constitutional rights were not violated by the state’s failure to disclose the videotapes and the consent form, he has an independent right under article first, § 8, of the Connecticut constitution which was violated. The defendant correctly points out that our Supreme Court has recognized an independent state constitutional right which guarantees the disclosure of exculpatory information held by the prosecution. State v. Cohane, 193 Conn. 474, 495 n.16, 479 A.2d 763 (1984). This independent right is similar to that protected by the federal constitution in that it guarantees the defendant access to exculpatory evidence in the exclusive possession of the state. Consistent with our conclusion that the defendant had personal knowledge of the videotapes and consent form; State v. Perez, 181 Conn. 299, 435 A.2d 334 (1980); State v. Simms, supra; we conclude that there was no violation of the defendant’s state constitutional right regarding that evidence.

Y

The defendant’s final claim is that he was denied his discovery rights protected by the general statutes and our rules of practice. The substance of this claim presumes that Zonana, the court appointed psychiatrist, was acting as an agent for the prosecution. We conclude that the record before us is inadequate properly to dispose of this claim.

The facts relevant to this claim are as follows. Zonana, the psychiatrist who conducted one of the court ordered examinations of the defendant, conducted clinical interviews with the defendant as well as a review of his medical reports. Counsel for the defendant submitted numerous discovery requests, one of which sought “[t]he substance of any oral declaration of the defendant of which written or other tangible recording has been made and which were made by the defendant, whether before or after arrest, in response to interrogatories by any person known to the defendant to be a law enforcement officer or his agent, or a prosecuting authority or his agent.”

The defendant contends, and we agree, that this discovery request mirrors § 750 (2) of the Practice Book. That section gives a criminal defendant a right to certain oral statements made by him to the prosecuting authority or an agent of the prosecuting authority of which written or other recordings were made. The defendant further contends that Zonana was an agent of the prosecuting authority and that this agency is evidenced by the consent form signed by the defendant at the request of Zonana.

We begin our analysis with the relevant rules of practice. Practice Book §§ 758 through 760 provide for court ordered psychiatric evaluations of a criminal defendant if the defendant intends to rely on a defense of mental disease or defect. Section 760 specifically prohibits the use of any statement made during the examination by the defendant as evidence against him on the issue of guilt or innocence. This section expressly limits the use of the court ordered examination to the issue of the defendant’s mental state to the extent he has put that state in issue.

Practice Book § 750 provides, as of right, for the disclosure of statements made by the defendant to any law énforcement officer of this state or his agent. Thus, the dispositive issue is whether a psychiatrist who conducts a § 760 examination can be an agent of the state.

We first consider whether a psychiatrist who conducts a court ordered psychiatric evaluation of a criminal defendant, is generally an agent of the state, thus bringing statements made during the evaluation within the purview of § 750.

Whether a layman is an agent for the state is first a question of fact. State v. Alexander, 197 Conn. 180, 185, 496 A.2d 486 (1985); see also Thomas v. Cox, 708 F.2d 132, 135 (4th Cir.), cert. denied, 464 U.S. 918, 104 S. Ct. 284, 78 L. Ed. 2d 262 (1983). This factual finding lies in the first instance with the trial court, and an appellate court must give great deference to such a finding. The factual elements that the court must consider in determining whether a layman is an agent of the state were articulated in United States v. Henry, 447 U.S. 264, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980). In Henry, the court found that an inmate who informed on a fellow inmate was an agent of the state (1) because the inmate witness was a paid informant who received a “contingent-fee” for the information, (2) because the defendant was in custody and under indictment at the time he incriminated himself, and (3) the statements made by the defendant were inculpatory and used by the state for purposes of convicting him. Id., 270; State v. Alexander, supra, 184. From these facts, the court in Henry concluded that the inmate witness was an agent of the state.

After applying the standards for agency articulated by United States v. Henry, supra, and its progeny to Practice Book §§ 750 through 760, we conclude that a psychiatrist conducting a court ordered evaluation of a criminal defendant is generally not an agent of the state. First, the psychiatrist is appointed by the court, not by the prosecuting authority. Second, the psychiatrist receives an hourly fee; thus, the psychiatrist who conducts the evaluation is paid regardless of what opinion he reaches and in spite of whether the state calls him to testify or not. Third, neither the manner nor the result of this examination are in any way within the control or influence of the state. Finally, § 760 expressly prohibits the use of any statement given to such psychiatrist for the purpose of inculpating the defendant.

Although we have concluded that a psychiatrist who conducts a court ordered evaluation of a criminal defendant is not generally an agent of the state, we also conclude that there may be factual circumstances under which a psychiatrist crosses that threshold. See Estelle v. Smith, 451 U.S. 454, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981). We note that a psychiatrist conducting a court ordered examination will only have an agency relationship with the state when his conduct reaches the outer limits of such a relationship. See Thomas v. Cox, supra, 137. Because this determination is fact bound and because there is an inadequate record before us upon which we can conclude whether, under the particular circumstances of this case, Zonana’s relationship with the state reached those outer limits, we must remand. The record before us must be augmented by an evidentiary hearing to determine those facts that will provide the answer to whether Zonana was an agent of the state. See State v. Pollitt, 199 Conn. 399, 415, 508 A.2d 1 (1986).

In making its determination, the trial court must examine the nature of the relationship between Zonana and the state’s attorney’s office in this case. The court should consider, but not limit itself to, the following: Was Zonana’s practice of videotaping psychiatric examinations universal or unique to this case? Did the state’s attorney expressly ask Zonana to videotape the examination of this defendant? Was the consent form in Zonana’s possession or in the state’s attorney’s possession? In whose possession were the videotapes? Did Zonana conduct similar examinations for defendants, or did he have an exclusive relationship with the state’s attorney? From these facts and other relevant evidence, the court must determine whether Zonana was an agent of the state in this case.

The supervision of this case on appeal shall remain in the appellate court. Practice Book §§ 2000, 4183; State v. Pollitt, supra, 415; State v. Gonzales, 186 Conn. 426, 436, 441 A.2d 852 (1982). If the trial court finds that the psychiatrist was not acting as an agent for the state this court will,, in its supervisory capacity, dispose of this appeal based on those findings and conclusions. State v. Pollitt, supra, 416.

If, however, the court finds that Zonana was acting as an agent of the state then the trial court must set out findings of fact and conclusions of law which resolve the defendant’s claim that the contents of the videotapes and the consent form would have aided materially in the defendant’s cross-examination of Zonana. These latter findings, if necessary, should include an analysis of the prejudice, if any, suffered by the defendant as a consequence of not having access to the videotapes and consent form.

In remanding for the limited purpose set out in this opinion “[w]e do not think that this court can or should vacate the defendant’s conviction at this time and order a new trial because the defendant’s rights are fully protected by our remand to the trial court with the direction to hold an evidentiary hearing.” Id.

Finally, we have considered the defendant’s claim that the “suppression” of the videotape and consent form bolsters his claim that the court ordered examination with Zonana was an uncounselled confrontation with a professional adversary in violation of his federal sixth amendment and state constitutional rights to counsel, and find that even if Zonana was an agent for the state for the purpose of § 750 this does not affect our conclusion that he was not a professional adversary.

This case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       General Statutes § 53a-60 provides in relevant part: “(a) A person is guilty of assault in the second degree when: ... (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument

       The victim was subsequently transported from the bar to the West Haven police station. After being placed in his cell, he complained of pains in his arms and legs. He went into cardiac arrest and died later that morning after being transported to a hospital. It was subsequently determined that his neck had been broken. The victim’s broken neck, however, was not caused by the defendant’s conduct, but had occurred prior to that conduct.

       Practice Book § Y60 provides: “In an appropriate case the judicial authority may, upon motion of the prosecuting authority, order the defendant to submit to a psychiatric examination by a psychiatrist designated for this purpose in the order of the court. No statement made by the defendant in the course of any examination provided for by Sec. 757, whether the examination shall be with or without the consent of the defendant, shall be admitted in evidence against the defendant on the issue of guilt in any criminal proceeding. A copy of the report of the psychiatric examination shall be furnished to the defendant within a reasonable time after the examination.”

       In denying the motion to suppress, the court also noted that § 760 does not provide for defense counsel at such psychiatric examinations.

       Although the defendant makes much of the fact that the state did not put the defendant’s shoe into evidence, he does not dispute the state’s claim that he was wearing shoes at the time he kicked the victim in the head.

       The defendant makes claims under Practice Book §§ 734, 737, 741, 745, 750 and 760 and under General Statutes § 54-86e. We find the substance of the defendant’s claim controlled by our analysis of Practice Book §§750 and 760.

       Practice Book § 750 provides: “Subject to the provisions of Sec. 784, upon written motion of the defendant the prosecuting authority shall disclose to the defendant and allow the defendant to inspect, copy or photograph any of the following items which are known to him and obtainable by him in the exercise of due diligence:
      “(1) Any relevant statements made by the defendant to any law enforcement officer of this state or his agent, or any copies of the same;
      “(2) The substance of any oral declarations of the defendant of which a written or other tangible recording has been made and which were made by the defendant, whether before or after arrest, in response to interrogatories by any person then known to the defendant to be a law enforcement officer or his agent or a prosecuting authority or his agent; or
      “(3) Any relevant statements of coconspirators which the prosecuting authority intends to offer in evidence at any trial or hearing.” (Emphasis added.)

       The consent form provided: “I understand that these recordings are being made at the request of State’s Attorney Mr. Arnold Markle and will be used to prepare my case.
      “I understand that part or all of these recordings may be played for officers of the court or played during courtroom proceedings.”
      We note that there is no claim that the consent form was an attempt to circumvent the protections provided by Practice Book § 760. Rather, the defendant’s claim is that the existence of the consent form is an indicia of an agency relationship between the state and Zonana.

       Although finding subordinate facts is not properly within the domain of an appellate court, an appellate court can make such a finding where an adequate record is preserved on appeal and the credibility of a witness is not in issue. State v. Alexander, 197 Conn. 180, 185, 496 A.2d 486 (1985). Here, there was no factual record upon which to resolve the defendant’s claim because the existence of the videotapes came to light long after trial while the case was on appeal.