author: ROBINSON, J.

text:
    MARC PERUCCIO v. COMMISSIONER OF CORRECTION
    (AC 27923)
    DiPentima, Gruendel and Robinson, Js.

      Argued January 15
    officially released April 15, 2008

      Christopher M. Neary, special public defender, for the appellant (petitioner).

      MichaelE. O’Hare, supervisory assistant state’s attorney, with whom, on the brief, were James E. Thomas, former state’s attorney, Angela R. Macchiarulo, senior assistant state’s attorney, and Rosita M. Creamer, former senior assistant state’s attorney, for the appellee (respondent).
   Opinion

ROBINSON, J.

The petitioner, Marc Peruccio, appeals from the judgment of the habeas corut denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly determined that he had received the effective assistance of counsel. We are not persuaded by the petitioner’s arguments and, accordingly, affirm the judgment of the habeas court.

The following facts and procedural history are necessary for the resolution of the petitioner’s appeal. On November 9, 1995, the jury found the petitioner guilty of manslaughter in the first degree and risk of injury to a child in connection with the death of a child who was approximately twelve months old. The trial court sentenced the petitioner to a total effective term of twenty years imprisonment. The petitioner directly appealed from his conviction through his trial counsel, Kimball Haines Hunt. This court affirmed the conviction, and our Supreme Court denied the petition for certification to appeal. See State v. Peruccio, 47 Conn. App. 188, 702 A.2d 1200 (1997), cert. denied, 243 Conn. 964, 707 A.2d 1266 (1998).

We previously determined that the jury reasonably could have found the following facts. “At approximately 8:40 p.m. [on September 2, 1993], a paramedic unit was dispatched to the victim’s home to respond to a call concerning a baby who was not breathing. Upon arriving on the scene, the paramedic observed the victim on the floor with vomit in his mouth and the [petitioner] on the phone with 911 dispatchers who were attempting to instruct him on how to perform [cardiopulmonary resuscitation]. The victim had no pulse and was not breathing. He was taken by ambulance to Manchester Hospital and examined by Ronald D’Angelo, an emergency room physician. The [petitioner] told D’Angelo that the victim had choked while being fed, that his head had rolled back, and that he had stopped breathing. In the emergency room, a bruise on the victim’s forehead, a retinal hemorrhage and the dilation of one eye were observed. The victim’s condition did not change and attempts to resuscitate the victim ceased at 11:12 p.m.

“Prior to going shopping on September 2, 1993, the victim’s mother had arranged the victim’s dirty clothing in various piles for laundering. At trial, the victim’s mother testified that the piles of clothing had been moved. In particular, the police investigation discovered a shirt with blood stains lying on top of one of the piles. The victim’s mother testified that at the time she went shopping, this shirt was inside a plastic bag next to the child’s crib. The state police forensics laboratory was unable to determine the type of blood on the shirt. The laboratory did discover, however, that the victim’s blood and the blood on the shirt both contained phosphoglucomutase one plus, indicating a possible match. In addition, the blood on the shirt was found to be mixed with saliva and epithelial cells, which line the mouth, throat, and digestive tract lining.

“At trial, D’Angelo testified that the victim’s retinal hemorrhage was typical of the trauma associated with the shaking of a baby, but that trauma to the head of an infant can have the same effect as shaking. In addition, D’Angelo testified that the victim’s retinal hemorrhage and the dilation of one of his pupils were indications of a brain injury that had progressed to a dangerous or emergent point.

“On September 3, 1993, Thomas Gilchrist, an associate medical examiner, performed an autopsy on the victim. He testified that the autopsy revealed that the victim was well nourished and without chronic illness, and that there were small abrasions on the forehead, a bruise on the left cheek, superficial lacerations on the inside of the mouth, and a small area of bleeding due to a laceration under the upper lip. Gilchrist testified that due to an absence of scabs, in his opinion, the abrasions and lacerations were fresh. The autopsy also revealed a large number of hematomas, or accumulations of blood, located between the scalp and the skull and found on all sides of the victim’s head, which Gilchrist concluded were inflicted shortly before the victim’s death. In addition, the autopsy revealed small accumulations of blood between the dura, the thick membrane covering the brain, and the brain.

“Gilchrist concluded that the cause of death was blunt trauma to the head. He also testified that the specific mechanism of death was brain swelling, or cerebral edema, incident to the trauma. The trauma could have been caused by either direct blows to the victim’s head or the striking of the victim’s head against a fixed object. Gilchrist further testified that in his opinion the injuries to the victim’s head were fresh. Although unable to determine the exact time of injury, he testified that in his experience, in the majority of cases, the blows resulting in cerebral edema occurred within the hour prior to the child’s arrival at the hospital. In addition, he testified that vomiting of the gastric contents is a part of the dying process.” Id., 192-94.

Following his unsuccessful appeal to this court, the petitioner filed a petition for a writ of habeas corpus, subsequently amended on October 27, 2005, alleging ineffective assistance of counsel. After hearing numerous days of testimony over the course of several months, the habeas court denied this petition. The court then granted the petition for certification to appeal from the denial of the petition for a writ of habeas corpus. Additional facts will be set forth as necessary.

As a preliminary matter, we identify the legal principles germane to the petitioner’s appeal. “The principal purpose of the writ of habeas corpus is to serve as a bulwark against convictions that violate fundamental fairness. ... To mount a successful collateral attack on his conviction, a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal. ... In order to demonstrate such a fundamental unfairness or miscarriage of justice, the petitioner should be required to show that he is burdened by an unreliable conviction.” (Citations omitted; internal quotation marks omitted.) Summerville v. Warden, 229 Conn. 397, 419, 641 A.2d 1356 (1994). Additionally, we note that “ [t]he right to counsel is not the right to perfect counsel.” Porter v. Commissioner of Correction, 99 Conn. App. 77, 83, 912 A.2d 533, appeal dismissed, 284 Conn. 431, 934 A.2d 242 (2007); see also Chace v. Bronson, 19 Conn. App. 674, 678, 564 A.2d 303 (“[petitioners are entitled to reasonably professional assistance, not to perfect representation”), cert. denied, 213 Conn. 801, 567 A.2d 832 (1989).

We now set forth the standard for determining whether there has been ineffective assistance of counsel. “In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel’s performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversarial process that renders the result unreliable. . . .

“The first part of the Strickland analysis requires the petitioner to establish that . . . counsel’s representation fell below an objective standard of reasonableness considering all of the circumstances. ... [A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . .

“Turning to the prejudice component of the Strickland test, [i]t is not enough for the [petitioner] to show that the errors [made by counsel] had some conceivable effect on the outcome of the proceeding. . . . Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” (Citations omitted; internal quotation marks omitted.) Bova v. Commissioner of Correction, 95 Conn. App. 129, 134-35, 894 A.2d 1067, cert. denied, 278 Conn. 920, 901 A.2d 43 (2006); see also McColl v. Commissioner of Correction, 101 Conn. App. 232, 235-36, 922 A.2d 180, cert. denied, 284 Conn. 902, 931 A.2d 264 (2007).

Finally, we set forth the applicable standard of review. “[I]n a habeas action in which the petitioner alleges ineffective assistance of trial counsel, the underlying historical facts found by the habeas court may not be disturbed unless they were clearly erroneous .... [M]ixed questions of fact and law, which require the application of a legal standard to the historical-fact determinations, [however] are not facts in this sense. . . . Whether the representation a defendant received . . . was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Citation omitted; internal quotation marks omitted.) Hopkins v. Commissioner of Correction, 95 Conn. App. 670, 672-73, 899 A.2d 632, cert. denied, 279 Conn. 911, 902 A.2d 1071 (2006); see also Grant v. Commissioner of Correction, 86 Conn. App. 392, 397, 861 A.2d 1191 (2004), cert. denied, 273 Conn. 903, 868 A.2d 744 (2005).

The petitioner claims that the court improperly determined that he received the effective assistance of his trial counsel. He alleges that several instances of conduct by Hunt failed to satisfy the Strickland standard. He specifically argues that Hunt failed (1) to utilize the appropriate expert witness, (2) to attempt to limit the testimony of Gilchrist, (3) to object to Gilchrist’s use of the word “blow” and (4) to introduce certain photographs of the victim into evidence. We will address each of those arguments in turn.

I

The petitioner first argues that Hunt provided him with the ineffective assistance of counsel by selecting the wrong expert. Specifically, he maintains that Hunt called Richard Simon, a neurosurgeon, to testify as a medical expert to refute the autopsy report and conclusions of Gilchrist. He further claims that Hunt should have utilized the services of a pathologist or a neuropathologist rather than a neurosurgeon. We conclude that the petitioner has failed to sustain his burden with respect to the prejudice prong of the Strickland standard and, accordingly, his argument must fail.

The following additional facts are necessary for our discussion. At the petitioner’s criminal trial, Gilchrist, a forensic pathologist, testified that he had performed an autopsy on the victim on September 3, 1993. His external examination revealed some abrasions and a bruise on the victim’s face. He observed extensive areas of hematomas, or collections of blood, under the galeal, a thick membrane that lies between the skin and skull. These hematomas were confluent and present on all sides of the head. Gilchrist’s further examination showed the presence of blood in both the subdural and subarachnoid areas. In Gilchrist’s opinion, all of victim’s injuries, both external and internal, appeared to be recent. He ultimately concluded that the victim’s death was a homicide as a result of cerebral edema, or brain swelling, following a blunt trauma to the head. He further opined that the blunt trauma that caused the victim’s death had occurred at the same time rather than over an extended period of time. Finally, he indicated that from the onset of the trauma to the head, there would have been a progressive diminishment of the victim’s health.

Hunt presented Simon as an expert witness in response to the state’s medical evidence. He selected Simon because he was the chief of neurosurgery at Hartford Hospital and the author of a medical book. Hunt also thought that, as a result of his practice, Simon would relate better to the jury as opposed to a pathologist who conducted autopsies.

Simon disputed the opinion that the injuries were imposed at the same time. Simon indicated that for blunt trauma to have been the cause of the victim’s death, there were only two mechanisms by which this could have occurred. The first was vasospasm, and there was nothing in the autopsy report to support or reject this possibility. The second was cerebral edema, and Simon indicated that, in his opinion, the findings in the autopsy report did not support this mechanism. Simon ultimately concluded that, on the basis of the autopsy report, he could not state with a reasonable degree of medical probability what the cause of death was.

During the habeas proceedings, the petitioner presented Jan Edward Leestma, a neuropathologist, as a witness. He distinguished the medical specialties of neurosurgery versus neuropathology. He indicated that he had reviewed the autopsy report, autopsy photographs, tissue slides, hospital medical records and the transcript of Gilchrist’s trial testimony. Leestma offered several criticisms regarding both the manner in which Gilchrist had conducted the autopsy and his subsequent findings. Although he could not eliminate the possibility that the injury causing the bleeding in the victim’s brain had occurred within two hours of death, Leestma opined that such an injury had occurred at an earlier time.

Harold Wayne Carver II, the chief medical examiner, disputed certain aspects of Leestma’s testimony.* * The respondent, the commissioner of correction, also presented testimony from Dean Uphoff, a neuropathologist who had examined the victim’s brain. Both Carver and Uphoff concluded that the victim died within horns of sustaining a traumatic injury to the head.

We are mindful that, under certain circumstances, the failure to use any expert can result in a determination that a criminal defendant was denied the effective assistance of counsel. Siano v. Warden, 31 Conn. App. 94, 99-105, 623 A.2d 1035 (failure to call orthopedic surgeon who would have testified that due to extensive injuries, it would have been difficult for petitioner to carry heavy computer equipment from residence constituted inadequate assistance of counsel), cert. denied, 226 Conn. 910, 628 A.2d 984 (1993); see also Bell v. Miller, 500 F.3d 149 (2d Cir. 2007) (failure to present expert testimony regarding effects of trauma, significant blood loss and certain medication on memory of witness constituted ineffective assistance); Lindstadt v. Keane, 239 F.3d 191 (2d Cir. 2001) (failure to consult expert on sexual abuse of children constituted inadequate assistance). The present case, however, is not such a situation. Instead, the issue is whether Hunt chose, in the words of the petitioner, the “wrong” expert and, as a result, rendered ineffective assistance.

Even if we were to assume arguendo that Hunt’s selection of a neurosurgeon as an expert witness to testify at the criminal trial constituted deficient performance, no prejudice resulted from that deficiency. On the basis of our review of the record, we conclude that the petitioner has failed to demonstrate that there is a reasonable probability that if Hunt had called a pathologist or a neuropathologist as an expert witness during the criminal trial, the jury would have had a reasonable doubt of the petitioner’s guilt. First, we note that Hunt, through the use of Simon’s testimony, did present a significant assault on the testimony of Gilchrist. We agree with the statement of the habeas court that Hunt “did mount a spirited attack through the use of . . . Simon.” This is not a case in which defense counsel failed to challenge the state’s theory of criminal liability. Cf. Siano v. Warden, supra, 31 Conn. App. 99-105. Instead, Hunt aggressively and zealously challenged the conclusions of Gilchrist through the use of Simon, and the jury was forced to resolve the disparate opinions of these two experts. In other words, the jury had been presented with substantial attacks on the state’s expert, which is precisely what Leestma would have done. Although Leestma possibly may have been a “better” expert witness than Simon, we conclude that the petitioner has not established a reasonable probability that had Leestma testified, the result would have been different.

Furthermore, we note the existence of substantial evidence upon which the jury found the petitioner guilty. “[A] court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. ... [A] court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.” (Internal quotation marks omitted.) Nieves v. Commissioner of Correction, 51 Conn. App. 615, 621, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999).

In the petitioner’s direct appeal, we observed: “The evidence was sufficient for the jury to find that the [petitioner] had the opportunity to commit the crime during the time when the child was in his exclusive care. The jury also had sufficient evidence before it to find that on September 2, 1993, when the mother left the child in the care of the [petitioner], the child was a normal, healthy one year old without bruises, scratches, or any other abnormalities that might lead to death, that the child’s injuries were not caused accidentally, and that the child’s injuries resulting in his death occurred during the time when he was in the exclusive control of the [petitioner] and were caused by the [the petitioner].” State v. Peruccio, supra, 47 Conn. App. 195. There were two prior instances of the victim sustaining injuries while in the petitioner’s care. The first was a burned finger and the second was a bloody lip. Id., 190. On the day before the victim died, his pediatrician performed a scheduled physical examination of the victim and found no abnormalities. Id., 191. No one who had taken care of the victim on the day he died had observed a bruise on his forehead; however, personnel in the emergency department of the hospital had noticed such a mark during their attempts to resuscitate the victim. Police investigators found a shirt stained with blood and cells that line the mouth and digestive tract. Id., 192. The victim’s mother testified that piles of the victim’s clothing had been moved after she left and that a shirt with bloodstains had been in a plastic bag next to the child’s crib. Id. Finally, Leestma, the petitioner’s expert, admitted that the victim could have sustained the trauma within two hours of death. In other words, he did not opine that the fatal injury could not have occurred within the time period that the victim was in the sole care and custody of the petitioner.

We recently have stated: “The second part of the Strickland analysis requires more than a showing that the errors made by counsel may have had some effect on the outcome of the proceeding. . . . Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” (Citation omitted; internal quotation marks omitted.) Porter v. Commissioner of Correction, supra, 99 Conn. App. 83. Meeting this admittedly high standard is indeed a “herculean task . . . .” (Internal quotation marks omitted.) Denby v. Commissioner of Correction, 66 Conn. App. 809, 813, 786 A.2d 442 (2001), cert. denied, 259 Conn. 908, 789 A.2d 994 (2002). On the basis of our review of the entire record, we conclude that the petitioner has failed to establish prejudice as a result of Hunt’s decision to present a neurosurgeon as an expert witness, and, therefore, his claim on appeal must fail.

II

The petitioner next argues that he received ineffective assistance of counsel as a result of Hunt’s failure to attempt to limit the testimony of Gilchrist, either by a motion in limine or a motion to strike. He further maintains that because Gilchrist relied in part on a report from a neuropathologist, Gilchrist was not qualified to offer an opinion as to the cause of death. We are not persuaded.

The following additional facts are necessary for our discussion. During the criminal trial, Gilchrist discussed his educational background and experience as a forensic pathologist. He further testified that he had performed the autopsy of the victim and discovered numerous recent injuries. Specifically, Gilchrist stated that he had noted six categories that supported his diagnosis of blunt trauma to the head. On the basis of his experience and examination, he concluded that the victim had died from cerebral edema as a result of blunt trauma to the head.

Following the autopsy, Gilchrist produced a report. Included with Gilchrist’s report were two addenda. The first was a report by the consulting neuropathologist, Uphoff. The second was a toxicology report completed by Richard D. Pinder, the director of the state toxicology laboratory. The petitioner claims that, under these circumstances, had Hunt objected, he would have been able to limit, or possibly even exclude Gilchrist’s testimony and conclusions regarding edema and the mechanism of the victim’s death.

After thoroughly reviewing the record, we disagree with the petitioner’s claim that Hunt would have been able to limit or strike Gilchrist’s testimony at the criminal trial. Gilchrist clearly was qualified, on the basis of his educational background and his examinations of the victim, to testify as to the cause of death. “In order to render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion.” State v. Asherman, 193 Conn. 695, 716, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). Although his conclusions certainly were subject to challenge by other experts, we cannot conclude that Gilchrist’s testimony could have been excluded in the present case.

The petitioner has failed to prove that if Hunt had filed a motion in limine or a motion to strike with respect to Gilchrist’s testimony, there would have been a reasonable probability that such a motion would have been granted. See Correa v. Commissioner of Correction, 101 Conn. App. 554, 556, 922 A.2d 289, cert. denied, 283 Conn. 911, 928 A.2d 536 (2007). Furthermore, as we explained in part II A, the state presented significant evidence of the petitioner’s guilt outside of Gilchrist’s testimony. We conclude, therefore, that the petitioner has failed to establish that he was prejudiced by Hunt’s decision not to move to limit or to strike Gilchrist’s testimony.

III

The petitioner next argues that he received ineffective assistance of counsel as a result of Hunt’s failure to object to Gilchrist’s use of the word “blow” during his testimony. Specifically, he contends that the use of “blow” was prejudicial because it has a pejorative connotation that a third party must have been involved with the blunt trauma to the victim’s head, as opposed to the victim’s head striking a fixed object, such as a floor. We are not persuaded.

The following additional facts are necessary for our discussion. At the criminal trial, Gilchrist stated that he could not determine whether the trauma had been caused by blows to the victim’s head or the head striking a fixed object. On several occasions during his testimony at the criminal trial, Gilchrist used the word “blow” when describing the injuries suffered by the victim. At the habeas trial, Leestma indicated that the word “blow” means the wielding of some object or the use of one’s fist itself to strike a static head. In contrast, “fall” means a moving head coming into contact with a stationary impact site. Leestma stated that “to equate blows and falls kind of runs roughshod over some important biomechanical differences. . . . [BJlows tend to produce surface injury, local injury, and not subdurals and not deep brain injury. Falls tend to do just the opposite . . . .” Leestma then concluded that Gilchrist inappropriately had misused the term “blow.”

First, we note that the jury was not presented with the definition used by Leestma with respect to the word “blow.” There is nothing in the record to suggest that the jury was aware of the specific distinction used in the field of pathology. The petitioner insists that “blow” contains a pejorative meaning. We are not persuaded by this mere speculation on the part of the petitioner.

Second, we conclude that the petitioner has failed to establish that he was prejudiced by Hunt’s decision not to object to Gilchrist’s use of “blow.” As we previously have concluded, there was substantial evidence to support the jury’s finding of guilt. As to this specific claim, the petitioner has failed to establish that had Hunt objected to the use of the word “blow,” there is a reasonable probability that the result of the proceeding would have been different.

IV

The petitioner finally argues that he received ineffective assistance of counsel as a result of Hunt’s failure to introduce into evidence certain photographs of the victim. The respondent counters that this decision constituted a matter of trial strategy and tactics, and, therefore, the petitioner cannot demonstrate that his right to effective counsel was violated. We agree with the respondent.

In his operative petition, the petitioner alleged that “Hunt failed to require the State to disclose and produce in evidence additional photographs of the child victim that would have visually established that the injuries to the child’s face were likely caused by the efforts by emergency personnel to resuscitate him. This inaction left in evidence only the photographs entered by the State—photographs that likely left the finder of fact with an erroneous inference of abuse by the petitioner. ”

The court permitted the petitioner to introduce a deposition of Hunt into evidence. During his deposition, Hunt was asked if he had offered all of the photographs of the victim that showed bruising on the victim’s face as a result of medical efforts to resuscitate. Hunt responded that he did not want to introduce the photographs into evidence because he believed them to be prejudicial and described them as “garish.”

It is clear from the record that Hunt’s decision to not introduce these photographs was a matter of trial strategy. Hunt did not want the members of the jury to see additional photographs of the victim, a small child. “It is all too tempting for a [petitioner] to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Internal quotation marks omitted.) Henderson v. Commissioner of Correction, 104 Conn. App. 557, 571-72, 935 A.2d 162 (2007), cert. denied, 285 Conn. 911, 943 A.2d 470 (2008); Brown v. Commissioner of Correction, 92 Conn. App. 382, 385, 885 A.2d 761 (2005), appeal dismissed, 281 Conn. 466, 915 A.2d 870 (2007).

Simply put, the decision by Hunt not to introduce the photographs falls into the category of trial strategy or judgment calls that we consistently have declined to second guess. See Lewis v. Commissioner of Correction, 89 Conn. App. 850, 868, 877 A.2d 11, cert. denied, 275 Conn. 905, 882 A.2d 672 (2005); see also Grant v. Commissioner of Correction, supra, 86 Conn. App. 399. Accordingly, this claim of ineffective assistance of counsel must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       Because we conclude that the petitioner has failed to satisfy the prejudice prong, we need not determine whether the alleged failure of his counsel constituted deficient representation. See Varchetta v. Commissioner of Correction, 104 Conn. App. 357, 360 n.6, 933 A.2d 1224, cert. denied, 285 Conn. 902, 938 A.2d 594 (2007). We note, however, that the habeas court specifically found that, with respect to the choice of expert witness, Hunt’s performance was not constitutionally deficient.

       Simon testified that sometimes after a head trauma, the blood vessels around the brain go into spasm, tighten and constrict around the brain. As a result, the brain is starved of oxygen.

       The habeas court described Leestma as “a highly qualified and well respected neuropathologist.”

       Specifically, Leestma testified: “Neurosurgeons are physicians, of course. They are treating physicians. That means that they have pursued a course of education and training that enables them to diagnose and treat nervous system diseases, and if you’re a surgeon, it usually means you’re—part of your treatment would be some operative intervention, whether it’s a brain tumor, you take it out; if it’s a blood clot or something, they may take it out. There’s some direct intervention often involved in that. That training program that they go through is directed at diagnosis and treatment and taking care of people directly.
      “The discipline of neuropathology, on the other hand, is a broad study of diseases of the nervous system, how they work, what they look like, what the time course and natural history of the disease is, and it does not usually directly involve diagnosis and treatment. Of course, it’s diagnosis, but it doesn’t involve hands-on treatment with patients or interventions of that sort. We act primarily as consultants and background support people for clinicians such as neurosurgeons.”

       Leestma opined that Gilchrist should have made a slide of the dura or collected a sample of the dura, because he suspected a head injury, and sent it to a consulting neuropathologist and that the failure to do so constituted a departure from the standard of practice. He also stated that Gilchrist had failed to report a thickening of the pleura, the outer lining of the lung, indicating pronounced scarring. Finally, Leestma indicated that Gilchrist had not mentioned the unusual presence in the liver of tissue that makes red and white blood cells.

       For example, Carver indicated that the decision of whether to retain the dura was left to the pathologist conducting the autopsy and that the pleura appeared normal to him. Carver also testified that some pathologists would not document the fact that red blood cells were being produced outside of the liver.

       The United States Court of Appeals for the Second Circuit has stated: “[TJhere is no per se rule that requires trial attorneys to seek out any expert.” (Emphasis in original; internal quotation marks omitted.) Gersten v. Senkowski, 426 F.3d 588, 609 (2d Cir. 2005), cert. denied sub nom. Artus v. Gersten, 547 U.S. 1191, 126 S. Ct. 2882, 165 L. Ed. 2d 894 (2006).

       The United States Court of Appeals for the Fourth Circuit has stated: “'The Constitution does not entitle a criminal defendant to the effective assistance of an expert witness. To entertain such claims would immerse federal judges in an endless battle of the experts . . . .” Wilson v. Green, 155 F.3d 396, 401 (4th Cir.), cert. denied sub nom. Wilson v. Taylor, 525 U.S. 1012, 119 S. Ct. 536, 142 L. Ed. 2d 441 (1998).

       Prior to the arrival of the ambulance, a neighbor observed the petitioner holding the victim. The neighbor noticed that the victim was making noises and sounded sick. She offered to give the petitioner some Tylenol for the victim. The petitioner declined and took the victim back to the apartment. This description of the child was consistent with Gilchrist’s testimony that following a severe trauma to the head, a child would become lackadaisical and lethargic and enter into a progressive pattern of lethargy, semicoma, coma and, eventually, death.

       Gilchrist had observed a diffuse patch subarachnoid hemorrhage with small subdural hematoma, cerebral edema, multiple subgaleal hematomas, abrasions and contusion of the face, small superficial lacerations of the inside of the mouth and small, fresh retinal hemorrhages.

       We also note that Hunt was able to use Gilchrist’s unfamiliarity with some of the statements in the consulting neuropathologist’s report to attack his credibility before the jury.

       Hunt also testified during the habeas trial.


source: Caselaw Access Project

author: FLYNN, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. DAVID C. WRIGHT
    (AC 27407)
    Flynn, C. J., and Beach and McDonald, Js.
    Argued January 17
    officially released April 15, 2008

      Robert E. Byron, special public defender, for the appellant (defendant).

      Adam E. Mattei, special deputy assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and C. Robert Satti, Jr., senior assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, C. J.

The defendant, David C. Wright, appeals from the judgment of conviction, following a jury trial, of carrying a pistol or revolver without a permit in violation of General Statutes § 29-35 (a) and possession of a weapon in a motor vehicle in violation of General Statutes § 29-38. On appeal, the defendant claims that the trial court improperly permitted the state to introduce into evidence a transcript of the prior testimony of a witness pursuant to § 8-6 (1) of the Connecticut Code of Evidence without sufficient proof of due diligence in the state’s attempt to locate the allegedly unavailable witness. We affirm the judgment of the trial court.

As a consequence of events that occurred in Bridgeport on the evening of October 15, 2000, resulting in the shooting death of one man and the wounding of another man, the defendant was charged with murder, assault in the first degree, carrying a pistol or revolver without a permit and possession of a weapon in a motor vehicle. After a jury trial, the defendant was acquitted of the murder and assault charges, but he was convicted of carrying a pistol or revolver without a permit and possession of a weapon in a motor vehicle. The defendant appealed from the judgment of conviction, which was reversed, and his case was remanded for a new trial. See State v. Wright, 86 Conn. App. 86, 860 A.2d 278 (2004). Following his new trial, the defendant was convicted of carrying a pistol or revolver without a permit and possession of a weapon in a motor vehicle. This appeal followed.

The defendant claims that the court improperly permitted the state to introduce into evidence a transcript of the prior in-court testimony of a witness without sufficient proof of due diligence in the state’s attempt to locate the allegedly unavailable witness. The defendant does not challenge the reliability of the witness’ testimony, and he specifically stated during oral argument before this court that he is not raising a Crawford confrontation clause issue. See Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). The defendant’s appellate brief also contains no reference to Crawford. The defendant further acknowledges that he had a full opportunity to cross-examine this witness at his first trial. The crux of the defendant’s claim is that the court declared this witness unavailable without a sufficient showing of due diligence on the part of the state in attempting to procure him. He argues that the state made little effort to procure the witness for this trial in that it did not attempt to get a subpoena, did not ask the police to assist in locating him, assigned only one inspector to the case and waited until the start of trial to begin looking for the witness. Thus, he argues, the state did not satisfy the due diligence requirement. We do not agree.

Initially, we must determine the appropriate standard of review. The defendant argues that we should employ a plenary standard of review to this claim because he is challenging the court’s legal determination as to what satisfies the requirement of due diligence. Even if all the facts found by the court are accurate, he argues, the legal conclusion of unavailability was not warranted because there was no showing of due diligence. The state asserts that our standard of review is the abuse of discretion standard because this claim is nothing more than an evidentiary issue, and the defendant does not allege a Crawford violation. It also argues that the court’s factual finding that the state exercised due diligence is subject to the clearly erroneous standard of review.

Recently, our Supreme Court in State v. Saucier, 283 Conn. 207, 926 A.2d 633 (2007) (en banc), explained that when assessing the trial court’s evidentiary rulings, “the appropriate standard of review is best determined, not as a strict bright line rule, but as one driven by the specific nature of the claim. To the extent a trial court’s admission of evidence is based on an interpretation of the Code of Evidence, [the] standard of [appellate] review is plenary. For example, whether a challenged statement properly may be classified as hearsay and whether a hearsay exception properly is identified are legal questions demanding plenary review. They require determinations about which reasonable minds may not differ; there is no ‘judgment call’ by the trial court, and the trial court has no discretion to admit hearsay in the absence of a provision providing for its admissibility. . . . [On the other hand, an appellate court] review[s] the trial court’s decision to admit evidence, if premised on a correct view of the law . . . for an abuse of discretion. . . . Similarly, appellate courts will defer to the trial court’s determinations on issues dictated by the exercise of discretion, fact finding, or credibility assessments. A paradigmatic example of this distinction would be a trial court’s conclusion that a hearsay statement bears the requisite indicia of trustworthiness and reliability necessary for admission under the residual exception to the hearsay rule, which would be reviewed for an abuse of discretion. ... By contrast, the question of whether the trial court properly could have admitted that statement under the residual exception if the admission of that type of statement expressly was barred under another hearsay exception would present a question of law over which the appellate courts exercise plenary review.” (Citations omitted.) Id., 218-19. Because the court’s assessment of whether the actions of the state in attempting to find the witness properly could be characterized as having been undertaken with due diligence involve a “judgment call” by the court, we conclude that the proper of standard of review in this instance is the abuse of discretion standard.

In State v. Frye, 182 Conn. 476, 481, 438 A.2d 735 (1980), our Supreme Court recognized five of the most common situations in which a declarant will be deemed unavailable to testify. The situation most relevant to the present case is one in which the declarant is “absent from the hearing and the proponent of his statement has been unable to procure his attendance . . . by process or other reasonable means.” (Emphasis in original; internal quotation marks omitted.) Id. “In interpreting reasonable means, [our Supreme Court has] held that the proponent must exercise due diligence and, at a minimum, make a good faith effort to procure the declarant’s attendance. . . . The trial court has broad discretion in determining whether the proponent has shown a declarant to be unavailable. Only upon a showing of a clear abuse of discretion will this court set aside on appeal rulings on evidentiary matters.” (Citations omitted; internal quotation marks omitted.) State v. Rivera, 220 Conn. 408, 411-12, 599 A.2d 1060 (1991). “[I]t is within the discretion of the trial court to accept or to reject the proponent’s representations regarding the unavailability of a declarant and the trial court’s ruling will generally not be disturbed unless the court has abused its discretion.” State v. Lopez, 239 Conn. 56, 79, 681 A.2d 950 (1996).

“[D]ue diligence to procure the attendance of the absent witness [is] ... an essential . . . predicate of unavailability. ... To take advantage of the hearsay exceptions requiring unavailability, the proponent must show a good faith, genuine effort to procure the declarant’s attendance by process or other reasonable means. . . . This showing necessarily requires substantial diligence. In determining whether the proponent of the declaration has satisfied this burden of making reasonable efforts, the court must consider what steps were taken to secure the presence of the witness and the timing of efforts to procure the declarant’s attendance.” (Citations omitted; internal quotation marks omitted.) Id., 75. “A proponent’s burden is to demonstrate a diligent and reasonable effort, not to do everything conceivable, to secure the witness’ presence.” Id., 77-78.

Inspector Michael Kerwin from the office of the state’s attorney testified as to the efforts that he made to procure the witness for this trial. Kerwin looked for the witness over a nine day period, including part of the day he testified. He reviewed databases containing drivers’ license information and vehicle registration information. He checked with the department of correction to determine whether the witness was incarcerated and with the state police to see if there were any pending cases against the witness. He also checked nationwide to see if there were any pending arrests. Kerwin reported that he checked, through the witness’ social security number, to see if the witness was working. Kerwin spoke with prior landlords and went to eight or nine different locations in the Bridgeport area and to one location in New Haven in an attempt to locate the witness. He checked on child support orders and protective orders, of which there were none. Kerwin also attempted to locate the witness’ mother and brother through the drivers’ license and motor vehicle databases to no avail. Kerwin physically went to all the addresses that came up through these searches, but he still was not successful in locating the witness or his family members.

Kerwin also testified that he discovered that the witness was collecting some type of compensation from the state of Connecticut and that the address where these checks were sent was 24 Sanford Place, apartment B-14, in Bridgeport. When Kerwin went there, however, he was told by the superintendent that the witness and his mother had been evicted from that apartment quite some time ago. The person then residing in apartment B-14 told Kerwin that he did not know the witness. Kerwin had no additional information concerning these checks or how the witness was getting them. After hearing this testimony and allowing counsel the opportunity to argue the issue of due diligence, the court credited Kerwin’s testimony and found the witness to be unavailable, specifically concluding that the state’s efforts to locate the witness were “timely and reasonable.” The court further concluded that “immediately upon receiving notice that this particular case would be on trial, diligent efforts were made to locate [the witness].” The court admitted the testimony under § 8-6 (1) of the Connecticut Code of Evidence.

Although the defendant argues that the state should have done more to procure the attendance of this witness at trial, “the question of whether an effort to locate a missing witness has been sufficiently diligent to declare that person unavailable is one that is inherently fact specific and always vulnerable to criticism, due to the fact that [o]ne, in hindsight, may always think of other things.” (Internal quotation marks omitted.) State v. Rivera, 221 Conn. 58, 67, 602 A.2d 571 (1992). A review of the record, including the factual findings of the court, leads us to the conclusion that the state sufficiently satisfied the two part test for the admissibility of the unavailable witness’ testimony. The state demonstrated that it made a good faith, reasonable and due diligent effort to locate the witness, and the defendant has not challenged whether the testimony had the requisite indicia of reliability- Accordingly, we conclude that the court did not abuse its discretion in admitting the witness’ prior in-court testimony.

The judgment is affirmed.

In this opinion the other judges concurred.

       Connecticut Code of Evidence § 8-6 provides in relevant part: “The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, provided (A) the issues in the former hearing are the same or substantially similar to those in the hearing in which the testimony is being offered, and (B) the party against whom the testimony is now offered had an opportunity to develop the testimony in the former hearing. . . .”

       “To satisfy the requirements for the former testimony exception to the hearsay rule, a movant must satisfy a two part test. The witness must be unavailable, and the former testimony must be determined to be reliable. State v. Lapointe, 237 Conn. 694, 737, 678 A.2d 942, cert. denied, 519 U.S. 994, 117 S. Ct. 484, 136 L. Ed. 2d 378 (1996). The reliability prong of the test requires that the issues testified about in the prior proceeding must be the same or substantially the same as the issues testified about in the present proceedings. State v. Parker, 161 Conn. 500, 503-504, 289 A.2d 894 (1971). Also, the party seeking the admission of the prior statement must demonstrate that the adverse party had the opportunity to conduct a full and complete examination of the declarant in regard to the statement.” State v. Rodriguez, 68 Conn. App. 303, 311, 791 A.2d 621, cert. denied, 260 Conn. 920, 797 A.2d 518 (2002).

       At various times throughout his main appellate and reply briefs, however, the defendant claims that his right to confrontation was violated by the admission of this testimony. During oral argument before this court, the defendant’s appellate counsel firmly stated that he was not making a Crawford argument and that the sixth amendment right to confrontation had been satisfied by the earlier cross-examination of the witness. Counsel then explained to this court that the only issue relevant to this appeal was whether due diligence had been exercised in attempting to locate this witness.

       The defendant does not challenge the credibility of Kerwin’s testimony and stated during oral argument that he found it “to be credible and remarkably candid.”


author: LAVINE, J.

text:
    STATE OF CONNECTICUT v. FRANCISCO LINARTE
    (AC 25607)
    Bishop, DiPentima and Lavine, Js.

      Argued January 3
    officially released April 15, 2008

      Deborah G. Stevenson, special public defender, for the appellant (defendant).

      Sarah Hanna, deputy assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Richard Colangelo, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

The defendant, Francisco Linarte, appeals from the judgment of conviction, rendered after a jury trial, of five counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and five counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). On appeal, he claims that the trial court improperly denied (1) his motion to suppress his confession, (2) his motion for disclosure of certain medical records, (3) his motion in limine to preclude prior misconduct, (4) his request to recall a state’s witness after the close of the state’s evidence, and (5) his motions for a judgment of acquittal and for a new trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Beginning in 1993, from the time they were two years old, twin sisters K and E spent three to four nights a week in the care of the defendant’s mother, who operated a day care business in her home. In August, 2002, when the girls were eleven, K disclosed to her mother that the defendant had been sexually assaulting her from around the time she was five years old. According to K, it was her fear that the defendant would begin to abuse a five year old girl who recently had started to attend the day care that compelled her to divulge the abuse to her mother.

K’s mother took her to Norwalk Hospital, where K told Officer Susan Holland of the Norwalk police department that the defendant had sexually assaulted her over a period of years, most recently during the past two weeks. E subsequently told Holland that the defendant also had abused her over a period of years. The girls were examined by a pediatric nurse at Yale-New Haven Hospital. Their ensuing interview at the Children’s Connection in Norwalk was observed by Sergeant Kenneth Riley of the Norwalk police department and investigator Yezenia Molina of the department of children and families. From the interview, Riley, who led the investigation, identified the defendant as a suspect.

On August 30, 2002, Riley and police Officer Carlton Giles drove to the defendant’s home and requested that he speak with them. Giles, a youth officer, was familiar with the defendant through his involvement with the DARE program at the defendant’s school. The defendant voluntarily accompanied the officers to the police station. When Riley asked the defendant’s mother if she wanted to accompany them, she indicated that she would drive herself to the police station later.

At the police station, the officers ascertained that the defendant was an eighteen year old high school graduate. In keeping with departmental procedure, Riley advised the defendant of his Miranda rights, provided him with a Miranda waiver form listing his Miranda rights and asked him to read the form aloud. When the defendant had difficulty reading the text back to Riley, Riley read to the defendant, asking him if he understood each paragraph of the waiver form. The defendant said that he understood and indicated as much by signing his initials after each paragraph. The defendant then signed the waiver form.

After Riley questioned the defendant about his interactions with K and E, the defendant admitted to having had sexual contact with K and E over a period of years. The defendant confessed that two to three times per week, while his mother was sleeping, “I would grind K from behind. . . . We started kissing, rubbing and started placing my penis in her vagina and she began placing my penis in her vagina.” He also stated: “When I was about thirteen years old, I used to rub against [K] with my clothes on. I probably put my penis in E’s butt, but I’m not sure. About a month ago was the last time K placed my penis inside her vagina . . . .” Joining the interview between Riley and the defendant, Molina heard the defendant say that “he had sexual intercourse with . . . both girls.” Riley typed and printed the defendant’s confession, after which Giles read it back to the defendant. Identifying the statement as his own, the defendant signed it. Riley would later testify that the defendant appeared relieved after telling his story.

The defendant was arrested in November, 2002. At trial in March, 2004, K testified that during June, July and August, 2002, the defendant entered the room where she slept at night, got on her bed, removed her underwear and penetrated her vagina with his penis. E testified that in July and August, 2002, the defendant touched and penetrated her vagina and her anus with his hands and penis. K testified that the assaults happened approximately 75 percent of the time she stayed at the day care and that she could not remember any time period during which the defendant was not sexually assaulting her. E testified that the sexual assaults happened “pretty much all [the] time” she was at the day care.

In diametric contradiction to his confession, the defendant denied at trial that he had ever touched K or E sexually. He testified that he had confessed because Riley and Giles told him he could not leave the interview at the police station until he admitted that he had molested the girls. On March 16, 2004, the jury found the defendant guilty of five counts of sexual assault in the first degree in violation of § 53a-70 (a) (2) and five counts of risk of injury to a child in violation of § 53-21 (a) (2). He was sentenced to forty years of imprisonment. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly denied his motion to suppress his confession. Specifically, the defendant argues that the court should have granted his motion to suppress the confession because (1) the state failed to prove, pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), that his waiver was voluntary, knowing and intelligent, (2) the court improperly shifted to him the burden of proving that the Miranda waiver was invalid, and (3) his confession was coerced in violation of his federal and state due process rights. We agree with none of these contentions.

“On appeal, we apply a familiar standard of review to a trial court’s findings and conclusions in connection with a motion to suppress. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... The conclusions drawn by the trial court will be upheld unless they are legally and logically inconsistent with the evidence. . . . [W]e engage in a careful examination of the record to ensure that the court’s decision was supported by substantial evidence. . . . We give great deference to the findings of the trial court because it weighs the evidence before it and assesses the credibility of witnesses.” (Internal quotation marks omitted.) State v. Stevenson, 70 Conn. App. 29, 49, 797 A.2d 1 (2002), rev’d on other grounds, 269 Conn. 563, 849 A.2d 626 (2004), after remand, 85 Conn. App. 811, 858 A.2d 876 (2004).

A

The defendant alleges that the state failed to meet its burden of proving that his waiver of rights was voluntary, knowing and intelligent pursuant to Miranda v. Arizona, supra, 384 U.S. 436. On appeal, the defendant claims that the court’s conclusion that he voluntarily, knowingly and intelligently waived his rights was improper because his intellectual limitations render him incapable of effecting a valid waiver.

“[T]o show that the defendant waived his privilege against self-incrimination, the state must prove by a preponderance of the evidence that he knowingly and intelligently waived his constitutional right to remain silent. . . . The question is not one of form, but rather whether the defendant . . . knowingly and voluntarily waived the rights delineated in the Miranda case. . . . [T]he question of waiver must be determined on the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. . . . The issue of waiver is factual, but our usual deference to the finding of the trial court on questions of this nature is qualified by the necessity for a scrupulous examination of the record to ascertain whether such a finding is supported by substantial evidence. . . .

“Whether the defendant has knowingly and intelligently waived his rights under Miranda depends in part on the competency of the defendant, or, in other words, on his ability to understand and act upon his constitutional rights. . . . Factors which may be considered by the trial court in determining whether an individual had the capacity to understand the warnings include the defendant’s experience with the police and familiarity with the warnings ... his level of intelligence, including his IQ . . . his age . . . his level of education . . . his vocabulary and ability to read and write in the language in which the warnings were given . . . intoxication ... his emotional state . . . and the existence of any mental disease, disorder or retardation. . . . The burden upon the state to prove a valid waiver of Miranda rights is proof by a fair preponderance of the evidence and not proof beyond a reasonable doubt. ... In considering the validity of this waiver, we look, as did the trial court, to the totality of the circumstances of the claimed waiver.” (Citation omitted; internal quotation marks omitted.) State v. Wright, 76 Conn. App. 91, 99-100, 818 A.2d 824 (2003), cert. denied, 267 Conn. 911, 840 A.2d 1175 (2004).

In June, 2003, the defendant filed a motion to suppress his signed confession, claiming that his Miranda waiver and subsequent confession were not voluntary, knowing and intelligent. The court held a hearing on the motion to suppress on February 6 and 11, 2004. In support of the proposition that the defendant’s limitations rendered him incapable of knowingly waiving his rights, defense counsel called the defendant and his mother, who both testified that the defendant experienced difficulty reading. No expert witness or medical testimony was offered at the suppression hearing.

The court also heard testimony from the state’s witnesses, Riley and Giles. Riley testified that the defendant voluntarily accompanied the officers to the police station, voluntarily initialed each paragraph on the Miranda waiver form and appeared to understand fully the conversation that followed, including his confession. In response to questions from defense counsel about the defendant’s condition, Riley testified that the defendant did not appear to be confused about what was being said to him or about what he was saying. Giles’ testimony confirmed that Riley had read the defendant his Miranda rights and that the defendant never indicated that he did not understand his rights or that he did not want to speak to the officers.

At the conclusion of the suppression hearing, the court denied the motion to suppress, stating: “[The defendant] is able to understand questions. He is able to understand his rights, as far as I can see. He was not under any undue influence, and I am going to deny the motion to suppress at this point.” In its memorandum of decision, the court noted that the defendant’s prompt responses to questions asked of him at trial belied the theory that he was incapable of effecting a valid waiver. The court also concluded that the defendant “acknowledge [d] that he signed the statement admitting the offenses . . . [that] he understood he was admitting the offenses by signing the statement” and that nothing in the record effectively nullified the evidence offered by the state that the defendant’s waiver was valid. Our examination of the record leads us to concur with the court’s conclusions.

Our case law establishes that evidence of learning difficulties, without more, is insufficient to invalidate a waiver of rights. “Even some degree of mental retardation does not by itself prevent a defendant from knowingly and intelligently waiving his Miranda rights.” (Internal quotation marks omitted.) State v. DaEria, 51 Conn. App. 149, 168, 721 A.2d 539 (1998); see State v. Usry, 205 Conn. 298, 306-307, 533 A.2d 212 (1987) (valid waiver of Miranda rights despite defendant’s young age, low IQ and status as special education student); State v. Boscarino, 204 Conn. 714, 744, 529 A.2d 1260 (1987) (valid waiver of Miranda rights despite testimony that defendant had low IQ and other deficiencies allegedly rendering him incapable of waiving his rights).

The defendant refers to State v. Wilson, 183 Conn. 280, 439 A.2d 330 (1981), in which our Supreme Court held that the state did not meet its burden of proving that the defendant had effected a knowing and intelligent Miranda waiver. In Wilson, the court concluded that nothing in the record indicated that the defendant had waived his rights. Id., 287. Not only had the police officers in that case failed to provide the defendant with a Miranda waiver form, but the defendant had not stated that he was willing to answer questions. Id., 282-83.

The case at bar is distinguishable. First, the defendant signed a waiver form and told Riley that he understood it. “[A] defendant’s express written and oral waiver is strong proof that the waiver is valid.” (Internal quotation marks omitted.) State v. Williams, 65 Conn. App. 59, 76, 782 A.2d 149, cert. denied, 258 Conn. 923, 782 A.2d 1251 (2001). Second, the defendant voluntarily confessed and then avouched and signed his confession. Additionally, the defendant neither requested an attorney nor appeared to be disoriented, confused or under the influence of drugs or alcohol. See State v. Stevenson, supra, 70 Conn. App. 51. Contrary to the defendant’s assertions, it was reasonable for the court in this case to judge the defendant capable of voluntarily, knowingly and intelligently waiving his Miranda rights.

We believe that the court properly considered the totality of the circumstances specific to this case, including the defendant’s age, education, intelligence and ability to read and write in English, in determining that the defendant’s waiver was knowing and intelligent. After carefully reviewing the record, we uphold the court’s conclusion that the state met its burden of demonstrating that the defendant voluntarily, knowingly and intelligently waived his Miranda rights.

B

The defendant next claims that the court improperly shifted from the state to him the burden of proving that his waiver and confession were not voluntary. According to the defendant, the court’s declaration that “the defendant has not established that the execution of the waiver was not voluntary” implied that the court had placed the burden of proving that the waiver was involuntary on him.

There is no question that “[t]he state has the burden of proving by a preponderance of the evidence that the defendant voluntarily, knowingly and intelligently waived his Miranda rights.” (Internal quotation marks omitted.) State v. Williams, supra, 65 Conn. App. 72. It is clear to us, however, that in this case, the court determined that the state had met its burden of proof before it considered the defendant’s counterproof. The court stated: “[T]he fact that the defendant signed and initialed the waiver indicates voluntariness .... The defendant’s maturity, he was almost nineteen, his education, he graduated high school in Norwalk, he graduated with his fellow classmates ... on [the] appropriate date. . . . The defendant was also able to sustain employment, including items that required some ability to understand and respond to what was put to him. . . . Under these circumstances, the state has established that, and the defendant has not established that the execution of the waiver was not voluntary. The defendant understood the execution of the waiver.”

It is clear to us that the court conveyed that the state had the burden of proving that the defendant’s waiver was voluntarily given. After making specific findings of fact about the defendant’s maturity, experience and intellectual abilities, in accordance with the evidence presented at trial, the court concluded that the state had met its burden of proof. See State v. Rice, 105 Conn. App. 103, 115, 936 A.2d 694 (2007), cert. denied, 285 Conn. 921, 943 A.2d 1101 (2008). Additionally, the court declared itself “satisfied that the state has met its burden of proving by a preponderance of the evidence that the defendant was informed of his Miranda rights and knowingly and voluntarily waived those rights.”

We conclude that the court did not shift from the state to the defendant the burden of proving that the waiver and confession were not voluntary.

C

The defendant asserts that the court’s denial of his motion to suppress his confession violated his rights under the due process clause of the federal constitution. Specifically, the defendant claims that because the officers failed to accommodate his intellectual limitations, they coerced him into confessing involuntarily.* *****

We evaluate the voluntary nature of the defendant’s confession pursuant to federal due process as it has been construed by Connecticut courts. “[T]he use of an involuntary confession in a criminal trial is a denial of due process of law. . . . Furthermore, a criminal defendant is entitled, as a matter of due process, to a reliable, clear-cut determination prior to trial that the confession sought to be introduced by the state was made voluntarily. ... In Connecticut, the preliminary voluntariness determination is made by the trial court.” (Citations omitted; internal quotation marks omitted.) State v. Correa, 241 Conn. 322, 327-28, 696 A.2d 944 (1997).

“In order to be voluntary a confession must be the product of an essentially free and unconstrained choice by the maker. ... If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of the confession offends due process. . . . The determination of whether a confession is voluntary must be based on a consideration of the totality of circumstances surrounding it . . . including both the characteristics of the accused and the details of the interrogation. . . . Factors that may be taken into account, upon a proper factual showing, include: the youth of the accused; his lack of education; his intelligence; the lack of any advice as to his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment, such as the deprivation of food and sleep. . . . Under the federal constitution . . . coercive police activity is a necessary predicate to the finding that a confession is not voluntary . . . .” Id., 328, citing Colorado v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986).

“The trial court’s findings as to the circumstances surrounding [a] defendant’s interrogation and confession are findings of fact . . . which will not be overturned unless they are clearly erroneous. . . . On the ultimate issue of voluntariness, however, we will conduct an independent and scrupulous examination of the entire record to ascertain whether the trial court’s finding is supported by substantial evidence.” (Citation omitted; internal quotation marks omitted.) State v. Correa, supra, 241 Conn. 328-29.

In this case, the only evidence that the police utilized coercion to induce the defendant’s confession derives from the defendant’s testimony. Riley, Giles and Molina testified, to the contrary, that the defendant voluntarily accompanied the officers to the station, voluntarily waived his Miranda rights and voluntarily confessed, indicating at no time that he wanted to leave or refrain from talking. The court credited this evidence, as well as the officers’ testimony that they employed no coercive tactics to induce the defendant’s waiver or confession.

It is not this court’s function to assess the credibility of witnesses. Rather, “[i]t is the sole province of the trial court to assess the credibility of witnesses.” (Internal quotation marks omitted.) State v. Bjorklund, 79 Conn. App. 535, 550, 830 A.2d 1141 (2003), cert. denied, 268 Conn. 920, 846 A.2d 882 (2004). When the record contains no evidence of threats, promises or coercive or deceptive measures by the police, it is reasonable for the court to conclude that statements were made voluntarily. See State v. Williams, supra, 65 Conn. App. 76. We therefore conclude that the court properly determined, on the basis of substantial evidence, that the defendant’s confession was voluntary.

For the foregoing reasons, we affirm the court’s denial of the motion to suppress.

II

The defendant’s second claim is that the court improperly denied his motion for disclosure of the medical and psychiatric records of K, E and their mother. In particular, the defendant asserts that the court should have granted his motion for disclosure, pursuant to the confrontation clause of the sixth amendment to the United States constitution, because he made an adequate showing that the requested records might substantiate his theory that K and E suffered from Munchausen by proxy syndrome, thereby exculpating him.* We disagree.

On February 23, 2004, the defendant filed a motion for disclosure of the medical and psychiatric records of K, E and their mother, claiming that he needed the requested records “to show that during the time period before any allegations were made against the defendant, the alleged victims’ mother continually sought medical treatment for the alleged victims for a variety of medical conditions and diseases, completely unrelated to any alleged sexual assault, that may not have ever existed.” Offering no proof, the defendant theorized that frequent visits to the doctor might signify a “pathologically obsessive pattern that may have critical bearing on the credibility of allegations made against the defendant.”

After hearing arguments, the court denied the motion for disclosure, finding no reasonable grounds for believing that the records contained exculpatory information. The court stated: “There has not, as of now, been any showing that would compel me ... to disclose [or] that would compel me to even do an in camera inspection.” The court, however, ordered the state to subpoena the requested records so that they would be readily available in case the defendant made a sufficient showing at a later time. Additionally, the defendant had access to all of the records contained in the state’s file.

During his cross-examinations of K and E, defense counsel inquired into their medical histories. This line of questioning, which educed recollections of broken bones and Lyme disease, prompted defense counsel to renew his motion to disclose medical and psychiatric records. The court again denied the motion, stating that “unless you have some expert to tie this all up and to cause this to be a bona fide issue concerning the matters that are on trial, I’m hard-pressed to let this in. I think it invites speculation .... There has to be something more than speculation . . . and I just don’t see how you’ve made the jump from one to the other.”

The abuse of discretion standard of review applies to a trial court’s decision about the relevance and admissibility of evidence. State v. Lindstrom, 46 Conn. App. 810, 818, 702 A. 2d 410, cert. denied, 243 Conn. 947, 704 A.2d 802 (1997). “The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Internal quotation marks omitted.) Id. Appellate review of the court’s decision to limit the defendant’s access to the witnesses’ confidential records, however, must take into account the recognized principle that “such a restriction implicates the defendant’s constitutional right to impeach and discredit state witnesses.” (Internal quotation marks omitted.) State v. Bruno, 236 Conn. 514, 532, 673 A.2d 1117 (1996).

“The sixth amendment to the constitution of the United States guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him. . . . [T]he primary interest secured by confrontation is the right of cross-examination . . . [which] 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 . . . has traditionally been allowed to impeach, i.e., discredit the witness.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Esposito, 192 Conn. 166, 178-79, 471 A.2d 949 (1984). “It is axiomatic [however] that the right to confrontation is not absolute. . . . The confrontation clause does not . . . suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. . . . The constitution does not require that a defendant be permitted to present every piece of evidence that he wants.” (Citations omitted; internal quotation marks omitted.) State v. Lindstrom, supra, 46 Conn. App. 820.

“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.” (Internal quotation marks omitted.) State v. Bruno, supra, 236 Conn. 522-23. “[W]e 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 . . . [the witness’ mental problem] affected his testimonial capacity to a sufficient degree to warrant further inquiry.” (Internal quotation marks omitted.) Id., 523.

In this case, the court determined that the defendant failed to adduce a factual basis to support his contention that the requested records would implicate the testimonial capacity of K and E. We agree with this determination. Because the defendant cited no facts that supported his theory of a pathologically obsessive pattern, he provided no basis from which the court reasonably could conclude that anything contained in the requested records would call K’s and E’s testimonial capacity into question. “A criminal defendant does not have a right to conduct a general fishing expedition into a witness’ privileged records.” (Internal quotation marks omitted.) State v. Pratt, 235 Conn. 595, 610, 669 A.2d 562 (1995).

In light of the record before us, we conclude that the court appropriately limited the scope of the defendant’s discovery to records relevant to the charges in the information. We are not inclined to conjure up mental abnormality out of gossamer illusions. See State v. Esposito, supra, 192 Conn. 180. Furthermore, the court did not deny the defendant access to medical or psychiatric information by alternative means. The defense counsel’s cross-examination of K and E afforded him the opportunity to inquire into their medical histories. Consequently, we conclude that the court did not abuse its discretion in denying the defendant’s motion to disclose the medical and psychiatric records of K, E and their mother.

Ill

The defendant’s third claim is that the court improperly denied his motion in limine to preclude prior misconduct evidence. The defendant argues that certain witness testimony alleging prior sexual misconduct unfairly prejudiced him by arousing the emotions of the jury. We do not agree.

On March 3, 2004, the defendant filed a motion in limine regarding the preclusion of anticipated evidence. Pursuant to § 4-5 of the Connecticut Code of Evidence, this motion requested the preclusion of any evidence of sexual assaults on K and E by the defendant not listed in the information. On March 8, 2004, the court heard arguments on this matter. The defendant asked the court to preclude as prejudicial any mention of prior sexual misconduct on his part. In response, the state proffered that prior misconduct evidence may be admitted to demonstrate a defendant’s motive. We agree with the state. In State v. James, 211 Conn. 555, 578, 560 A.2d 426 (1989), our Supreme Court held that evidence of prior sexual misconduct perpetrated by a defendant on the same victim was admissible to illustrate that “the defendant had a particular sexual interest in the [victim] . . . .” Id. In this case, the court ruled that the admission of prior misconduct evidence would be limited to establishing the defendant’s motive: “I’m going to allow the state to question the witness [es] according to the proffer just made.”

“Our review standard on an evidentiary ruling admitting other misconduct is guided by certain well settled principles. As a general rule, evidence of prior misconduct is inadmissible to prove that a criminal defendant is guilty of the crime of which the defendant is accused. . . . Such evidence cannot be used to suggest that the defendant has a bad character or a propensity for criminal behavior. . . . Exceptions to the general rule exist, however, if the purpose for which the evidence is offered is to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime. . . . We have developed a two-part test to determine the admissibility of such evidence. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. . . . Second, the probative value of the evidence must outweigh its prejudicial effect. . . . The primary responsibility for making these determinations rests with the trial court. We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Citations omitted; internal quotation marks omitted.) State v. Smith, 88 Conn. App. 275, 285-86, 869 A.2d 258, cert. denied, 273 Conn. 940, 875 A.2d 45 (2005).

The defendant alleges that the state improperly used the testimony at issue to circumstantiate his propensity to commit the crimes charged. The court allowed admission of prior misconduct testimony, however, only as it related to the defendant’s motive or sexual interest in the victims. In observation of this limitation, the prosecutor did not delve into gratuitous detail about the alleged sexual abuse but, rather, confined his examination of K and E to specific questions pertaining to what type of abuse had occurred and when and where it had taken place. Because the prior misconduct evidence was relevant and material to the defendant’s motive, the first part of the two part Smith test is satisfied.

Turning to the second part of the Smith test, which is whether the probative value of the evidence outweighed its prejudicial effect, “[w]e recognize that this balancing process is an inherently difficult one, and will reverse the trial court’s decision only when it is manifest that an abuse of discretion or an injustice has occurred.” (Internal quotation marks omitted.) Id., 287. “[W]e do not . . . requirfe] a trial court to use some talismanic phraseology in order to satisfy this balancing process. Rather ... in order for this test to be satisfied, a reviewing court must be able to infer from the entire record that the trial court considered the prejudicial effect of the evidence against its probative nature before making a ruling.” (Emphasis in original; internal quotation marks omitted.) State v. James G., 268 Conn. 382, 395, 844 A.2d 810 (2004).

It is clear that the court in this case properly considered the prejudicial effect of the evidence at issue before making a ruling. The court heard arguments on the motion, evaluated offers of proof and precluded references to prior misconduct that did not pertain to motive. Although the defendant insists that the prejudicial effect of the testimony at issue outweighed its probative value, the court deemed the evidence relevant to the defendant’s motive and, therefore, admissible. In light of the court’s appropriate assessment of the import of prior misconduct evidence, we conclude that the court did not abuse its discretion when it denied the defendant’s motion in limine.

IV

The defendant next claims that the court improperly denied his request to question Molina about potentially exculpatory evidence after the close of the state’s evidence. Specifically, the defendant argues that the court should have allowed him, in the presence of the jury, to question Molina about a letter, in which she stated that the allegations of sexual assault against him were unsubstantiated. We do not agree.

After Molina testified for the state, she was called as a witness for the defendant, who sought to question her about an October 4, 2002 letter she sent to him stating that the department of children and families found the allegations of sexual abuse against him to be unsubstantiated. The state objected on relevance grounds. Out of the jury’s presence, Molina explained that the allegations against the defendant were labeled “unsubstantiated” because the department of children and families, which pursued allegations only against caretakers, had determined that the defendant was not a caretaker. Concluding that the letter was irrelevant, the court sustained the state’s objection.

As we have stated: “The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. Lindstrom, supra, 46 Conn. App. 818. In this case, the court did not abuse its discretion. First, it allowed the defendant his offer of proof as to the letter and testimony in question. The jury was excused so that the court could hear defense counsel question Molina. Second, it was defense counsel, and not the court, who terminated the defendant’s questioning of Molina. The court stated: “I sustained the state’s objection to the last question asked. [Defense counsel], do you have any other questions?” Defense counsel answered: “Not of this witness.” Contrary to the defendant’s claim, the court allowed him ample opportunity to elicit information, including exculpatory evidence, from Molina. The court also allowed the defendant to mark the letter in question an exhibit for identification in order to preserve his record.

It is clear to us that the investigation undertaken by the department of children and families, of which the letter in question was but one piece, targeted caretakers only. As such, the court properly determined that the letter was irrelevant to the criminal charges against the defendant. We find no abuse of discretion in the court’s decision to exclude from evidence the letter in question.

V

The defendant’s final claim is that the court improperly denied his motion for a judgment of acquittal and his motion for a new trial. Specifically, the defendant contends that the court should have granted these motions because there was insufficient evidence to support his conviction of sexual assault and risk of injury to a child. We are not persuaded.

Asserting at trial that the totality of the evidence would not permit a finding of guilty by the jury, the defendant made an oral motion for a judgment of acquittal, which the court denied. After the trial, the defendant filed a motion for a judgment of acquittal and a motion for a new trial, claiming that the state failed to proffer sufficient evidence against him to justify the jury’s verdict. The court also denied these motions. On appeal, the defendant maintains that his motions for a judgment of acquittal and for a new trial should have been granted because the state failed to prove beyond a reasonable doubt that he was guilty of the crimes charged.

“When a verdict is challenged because of insufficient evidence, the issue is whether the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. . . . Appellate analysis of a claim of insufficiency of the evidence requires us to undertake a twofold task: [w]e must first review the evidence construing it in the light most favorable to sustaining the [jury’s] verdict. . . . We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt .... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.” (Citations omitted; internal quotation marks omitted.) State v. Avis, 209 Conn. 290, 308-309, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989). “[T]he issue is whether the [trier] could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Barkal, 8 Conn. App. 313, 315, 512 A.2d 972, cert. denied, 201 Conn. 812, 517 A.2d 630 (1986).

Though labeled as a challenge to the sufficiency of the evidence, this claim rests on an assessment of the witnesses’ credibility. There was sufficient evidence at trial to support the jury’s finding in this case. In addition to the defendant’s confession, K and E testified and were cross-examined. “Questions of whether to believe or to disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses. . . . We must defer to the [finder] of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) State v. Liborio A., 93 Conn. App. 279, 284, 889 A.2d 821 (2006).

The jury reasonably could have believed K’s and E’s testimony and disbelieved the defendant’s testimony that his confession was false. Consequently, the jury could have found the defendant to be guilty beyond a reasonable doubt as charged. Because the jury had before it ample evidence to find the defendant guilty on the ten counts of the information, we uphold the court’s denials of the defendant’s motions for a judgment of acquittal and for a new trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . . .”

       General Statutes § 53-21 (a) provides in relevant part: “Any person who ... (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of a class C felony for a violation of subdivision (1) or (3) of this subsection and a class B felony for a violation of subdivision (2) of this subsection.”
      We note that the conduct that gave rise to the risk of injury charges allegedly occurred in June, July and August, 2002. Although § 53-21 has been amended since then, in the interest of simplicity, we refer to the current revision of § 53-21.

       In accordance with our policy of protecting the privacy interests of the victims of sexual assault and the crime of risk of injury to a child, we decline to identify the victims or others through whom their identities may be ascertained. See General Statutes § 54-86e.

       See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       At trial, the defense called clinical psychologist Robert A. Novelly as an expert witness. The jury heard Novelly testify that he had administered cognitive tests that placed the defendant’s intellectual capacity, including his reading comprehension ability, in the low average range. On the basis of his examinations of the defendant in June, 2003, and in February, 2004, Novelly diagnosed the defendant with reading and auditory comprehension disorders and described the defendant as socially introverted. In a letter, submitted after trial and before sentencing, Novelly depicted the defendant as having “a congenital and severe impairment in [ljanguage [processing

       We need not address the defendant’s claim that the allegedly coercive conduct of Riley and Giles and the court’s denial of his motion to suppress violated his rights under General Statutes § 53a-192 because it was not raised before the trial court. “It is the appellant’s responsibility to provide an adequate record for review. . . . [W]e will not decide an appeal on an issue that was not raised before the trial court. ... To review claims articulated for the first time on appeal and not raised before the trial court would be nothing more than a trial by ambuscade of the trial judge.” (Citation omitted; internal quotation marks omitted.) In re Anna Lee M., 104 Conn. App. 121, 124 n.2, 931 A.2d 949, cert. denied, 284 Conn. 939, 937 A.2d 696 (2007).
      Likewise, we deem abandoned the defendant’s claim that the court’s denial of his motion violated his rights under our state constitution. See State v. Schultz, 100 Conn. App. 709, 730, 921 A.2d 595, cert. denied, 282 Conn. 926, 926 A.2d 668 (2007). Our Supreme Court has “repeatedly . . . emphasized that we expect counsel to employ [the analysis required by State v. Geisler, 222 Conn. 672, 684-85, 610 A.2d 1225 (1992)] [i]n order to [allow us to] construe the contours of our state constitution and [to] reach reasoned and principled results. . . . When a party fails to analyze these factors separately and distinctly, [w]e have made clear that ... we are not bound to review the state constitutional claim.” (Internal quotation marks omitted.) State v. Jenkins, 104 Conn. App. 417, 455 n.12, 934 A.2d 281 (2007), cert. granted on other grounds, 285 Conn. 909, 940 A.2d 809 (2008). “[W]e are not required to review claims that are inadequately briefed. . . . We consistently have held that [ajnalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where the parties cite no law and provide no analysis of their claims, we do not review such claims. ... We decline, therefore, to review the plaintiffs claims and deem them abandoned.” (Citations omitted; internal quotation marks omitted.) Hill v. Bartels, 73 Conn. App. 588, 589-90, 808 A.2d 1176 (2002).
      The defendant also asserts that his confession should have been suppressed pursuant to the fruit of the poisonous tree doctrine. Because this claim is not adequately briefed, we do not address it.

       The defendant also claims that Riley and Giles failed to accommodate his learning disabilities in accordance with § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., when they obtained his confession. The defendant did not raise this issue at trial but seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or, alternatively, under the plain error doctrine. See Practice Book § 60-5. Because this claim is not constitutional in nature, it is not reviewable under Golding.

      As to the defendant’s request for plain error review, “Practice Book § 60-5 provides that we may in the interests of justice notice plain error not brought to the attention of the trial court. . . . Such review is extremely limited. As our Supreme Court has noted, [pjlain error review is reserved for truly extraordinary situations . . . and is not even implicated unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Furthermore, plain error review is appropriate where the record is complete.” (Internal quotation marks omitted.) State v. Miller, 67 Conn. App. 544, 555, 787 A.2d 639, cert. denied, 259 Conn. 923, 792 A.2d 855 (2002). In this claim, the defendant alleges error that was not brought before the trial court. Furthermore, the defendant refers to no error in the record. We cannot conclude that the court’s denial of the defendant’s motion to suppress was plain error.

       Because “[a] common law privilege for communications made by a patient to a physician has never been recognized in this state”; (internal quotation marks omitted) State v. Anderson, 74 Conn. App. 633, 653, 813 A.2d 1039, cert. denied, 263 Conn. 901, 819 A.2d 837 (2003); defense counsel was free to subpoena additional medical records at any time. “It is the responsibility of the appellant to provide an adequate record for review. . . .” Practice Book § 61-10; In re Anna Lee M., 104 Conn. App. 121, 124 n.2, 931 A.2d 949, cert. denied, 284 Conn. 939, 937 A.2d 696 (2007). Consequently, the defendant failed to preserve his claim that the court erred in denying his motion to disclose nonpsychiatric medical records.

       On appeal, the defendant also contends that the court improperly denied his motion to question the mother of K and E. Contrary to the defendant’s assertions, the record discloses that the defendant never made, and the court never denied, a motion to question the mother of K and E. Consequently, the defendant’s claim that the court improperly denied his motion to question the victims’ mother is not reviewable.

       Munchausen by proxy syndrome is characterized by fabrications of symptoms or induction of signs of disease, leading to unnecessary investigations and interventions. T. Stedman, Medical Dictionary (28th Ed. 2006) p. 1906.

       Although the defendant also asserts that the court should have granted his motion for disclosure pursuant to the due process clause of the fourteenth amendment to the United States constitution, we address that claim in light of the confrontation clause of the sixth amendment to the federal constitution, pursuant to our determination in State v. Rosado, 52 Conn. App. 408, 414 n.10, 726 A.2d 1177 (1999), in which “[w]e decline[d] 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), established] that this claim is subsumed by our analysis of the defendant’s right to confrontation claim.”

       The court, stated: “In terms of the medical record request, these are my orders right now. ... I am going to order the state to use due diligence to know and be informed of the names and addresses of all treating physicians of the child complainants. That would include medical, counseling and psychological. I am going to order the state to subpoena those records under seal from one month prior to the date alleged in the information, so that would be May, 2002, to the present. ... At this point, I am not inclined to conduct an in camera examination, but ... if I reconsider and I think there has been a sufficient showing or other grounds ... I will notify counsel.”

       Connecticut Code of Evidence § 4-5 provides that “[ejvidence of other crimes, wrongs or acts of aperson is inadmissible to prove the bad character or criminal tendencies of that person . . . [but that] [e]vidence of other crimes, wrongs or acts of a person is admissible ... to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate crucial prosecution testimony.”

       Molina’s testimony was as follows:
      “ [Defense Counsel]: Subsequent to that, you sent a letter to [the defendant] informing him that the allegations of sexual abuse are unfounded—or— unsubstantiated?

        “[The Witness]: We did that because at the time, we [could] not substantiate against a person who is not legally responsible for the children.
      “[Defense Counsel]: So, if he committed the crime and he molested the girls, you still say it’s unsubstantiated?
      “[The Witness]: It’s a criminal matter. He was not in the earetaking role.”