text:
    ELIZABETH BELL ET AL. v. BOARD OF EDUCATION OF THE CITY OF WEST HAVEN ET AL.
    (AC 18207)
    Lavery, Landau and Spear, Js.
    Argued March 23
    officially released October 26, 1999

      John R. Williams, for the appellants (plaintiffs).

      Floyd, J. Dugas, for the appellees (defendants).

      Patrice McCarthy and Joan Libby filed a brief for the Connecticut Association of Boards of Education as amicus curiae.
   Opinion

LANDAU, J.

The plaintiffs appeal from the judgment of the trial court rendered following the granting of the defendants’ motion to strike the nine counts of the plaintiffs’ complaint. The sole issue in this appeal is whether the court improperly granted the motion to strike. We affirm the judgment of the trial court in part and reverse it in part.

The complaint alleges educational malpractice, negligence and intentional infliction of emotional distress. Specifically, counts one through three allege educational malpractice, counts four through six allege negligence, and counts seven through nine allege intentional infliction of emotional distress. In their motion to strike, the defendants argued that the first six counts of the complaint fail to set forth a legally cognizable cause of action. Specifically, the defendants argued that the first six counts concerning negligence and educational malpractice essentially state a claim for educational malpractice, a claim our Supreme Court declined to recognize in Gupta v. New Britain General Hospital, 239 Conn. 574, 687 A.2d 111 (1996). Furthermore, the defendants argued in their motion to strike that the plaintiffs, in the last three counts of their complaint, do not allege conduct that is sufficiently outrageous to survive the motion to strike, and that a mere conclusion is insufficient, as a matter of law, to set out a legally sufficient cause of action for intentional infliction of emotional distress.

For purposes of this appeal, we take as true the following facts alleged in the complaint. See Sassone v. Lepore, 226 Conn. 773, 780, 629 A.2d 357 (1993). During the school years of September, 1994, through June, 1995, and September, 1995, through June, 1996, the defendant board of education of the city of West Haven budgeted funds for curriculum development, but expended those funds for other purposes and had no standardized curriculum for elementary schools. During that time, the defendant Ellen Fenty-Morrison was the principal at the Alma E. Pagels School (Pagels School) and the instructional leader there. As such, Fenty-Morrison set and controlled the educational policies at the school and imposed on the children a teaching method (responsive classroom method) that the Northeast Foundation for Children, which also employs Fenty-Morrison, sold to them. This method, implemented by Fenty-Morrison, emphasizes social skills at the expense of discipline and academics. Fenty-Mor-rison has stated publicly that she “does not believe in rewarding academic excellence,” and she imposed this philosophy at the school during the 1994 through 1996 school years.

The plaintiffs further allege that during those school years, the Pagels School was the only public school in West Haven subjected to the entire responsive classroom method. Furthermore, during these school years, the defendants encouraged, created and tolerated an atmosphere of chaos, disruptiveness and violence at the school so that the children were exposed on a daily basis to so much physical and verbal violence that it became a place of fear. As such, learning at the school could not and did not take place in any meaningful sense. As a result, the plaintiffs’ minor children were deprived of an education comparable to that available to other children of their age attending different elementary schools in West Haven and elsewhere in Connecticut.

“The standard of review for granting a motion to strike is well settled. In an appeal from a judgment following the granting of a motion to strike, we must take as true the facts alleged in the plaintiffs complaint and must construe the complaint in the manner most favorable to sustaining its legal sufficiency. Sassone v. Lepore, [supra, 226 Conn. 780]; Michaud v. Wawruck, 209 Conn. 407, 408, 551 A.2d 738 (1988). Waters v. Autuori, 236 Conn. 820, 822, 676 A.2d 357 (1996). A motion to strike admits all facts well pleaded. See Practice Book § [10-39]. A determination regarding the legal sufficiency of a claim is, therefore, a conclusion of law, not a finding of fact. Accordingly, our review is plenary. Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed. 2d 308 (1997). Parsons v. United Technologies Corp., 243 Conn. 66, 68, 700 A.2d 655 (1997). If facts provable in the complaint would support a cause of action, the motion to strike must be denied. . . . Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged. Clohessy v. Bachelor, 237 Conn. 31, 33 n.4, 675 A.2d 852 (1996). . . . Knight v. F. L. Roberts & Co., 241 Conn. 466, 470-71, 696 A.2d 1249 (1997). . . . Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998).” (Internal quotation marks omitted.) Emerick v. Kuhn, 52 Conn. App. 724, 728-29, 737 A.2d 456, cert. denied, 249 Conn. 929, 738 A.2d 653 (1999).

I

The plaintiffs first assert that the trial court improperly granted the motion to strike as to their educational malpractice claim. We disagree.

The plaintiffs argued in opposition to the defendants’ motion to strike the counts of the complaint alleging educational malpractice that because our Supreme Court in Gupta v. New Britain General Hospital, supra, 239 Conn. 574, recognized certain exceptional circumstances in which it would entertain such causes of action, that court did not apply the jurisprudential reservations about requiring courts to make determinations of educational reasonableness, which the defendants claimed militated against recognizing a cause of action for educational malpractice. The plaintiffs argued (1) that the reservations constituted dicta only and (2) that, because the Gupta court indicated that there were two exceptional situations in which it would entertain such litigation, it would be inappropriate to strike their educational malpractice claims at this early stage. The trial court rejected those arguments and granted the defendants’ motion to strike.

In Gupta, our Supreme Court joined the vast majority of states that have rejected educational malpractice claims sounding in tort. Specifically, the court noted, albeit in dicta, that a claim for educational malpractice “raisejs] questions concerning the reasonableness of conduct by educational institutions in providing particular educational services to students—questions that must be answered by reference to principles of duty, standards of care, and reasonable conduct associated with the law of torts. Cencor, Inc. v. Tolman, 868 P.2d 396, 399 (Colo. 1994) (en banc). Because these tort principles are difficult, if not impossible, to apply in the academic environment, courts have almost universally held that claims of educational malpractice are not cognizable. Among other problems for adjudication, these claims involve the judiciary in the awkward tasks of defining what constitutes a reasonable educational program and of deciding whether that standard has been breached. See, e.g., Peter W. v. San Francisco Unified School District, 60 Cal. App. 3d 814, 825, 131 Cal. Rptr. 854 (1976) (finding no conceivable workability of a rule of care against which [teachers’] alleged conduct may be measured). In entertaining such claims, moreover, courts are required not merely to make judgments as to the validity of broad educational policies . . . but, more importantly, to sit in review of the day-to-day implementation of these policies. Donohue v. Copiague Union Free School District, [47 N.Y.2d 440, 445, 391 N.E.2d 1352, 418 N.Y.S.2d 375 (1979)].” (Internal quotation marks omitted.) Gupta v. New Britain General Hospital, supra, 239 Conn. 590-91.

The Gupta court stated that the “jurisprudential considerations that shed doubt on the viability of the tort of educational malpractice also inform our analysis of a contract claim based on inadequate educational services.” (Emphasis in original.) Id., 591. The court noted, however, that a cause of action for institutional breach of contract for educational services exists in at least two situations. Id., 592. “The first would be exemplified by a showing that the educational program failed in some fundamental respect, as by not offering any of the courses necessary to obtain certification in a particular field. See Wickstrom v. North Idaho College, 111 Idaho 450, 452, 725 P.2d 155 (1986); Ross v. Creighton University, [957 F.2d 410, 417 (7th Cir. 1992)]. The second would arise if the educational institution failed to fulfill a specific contractual promise distinct from any overall obligation to offer a reasonable program. See, e.g., Cencor, Inc. v. Tolman, supra, 868 P.2d 399; Paladino v. Adelphi University, [89 App. Div. 2d 85, 92, 454 N.Y.S.2d 868 (1982)].” Gupta v. New Britain General Hospital, supra, 239 Conn. 592-93.

The plaintiffs argue that the allegations of this case fit within the first exception. The plaintiffs, however, incorrectly interpret Gupta. In Gupta v. New Britain General Hospital, supra, 239 Com. 590-91, our Supreme Court joined the vast majority of other states that have rejected the tort of educational malpractice. See footnote 6. The court did not recognize any exceptions in the context of the tort of educational malpractice, but instead clearly articulated that the two narrow exceptions that it set forth applied in the breach of contract context. In the present matter, the plaintiffs’ claim for educational malpractice sounds in tort, not breach of contract. As such, contrary to the plaintiffs’ assertions, the first exception enunciated by the Gupta court is inapplicable.

On the basis of clear language in Gupta, we decline the subtle invitation to extend the two exceptions to tort-based claims for educational malpractice. We conclude, therefore, that mder the facts of this case, the plaintiffs’ claim of educational malpractice does not survive the defendants’ motion to strike.

II

The plaintiffs also claim that counts seven, eight and nine of the complaint allege facts constituting an action for intentional infliction of emotional distress sufficient to survive a motion to strike. Specifically, the plaintiffs assert that the complaint does more than merely conclude that the defendants’ conduct was extreme and outrageous. The plaintiffs maintain that facts supporting their claim are detailed in counts one through three and incorporated by reference into comts seven through nine. We agree.

In comts seven through nine, the plaintiffs repleaded the factual allegations recited in the prior comts. They further allege in each count that “[t]he actions of the defendants . . . were extreme and outrageous and were carried out by the defendants with the knowledge that such actions would, or probably would, cause the plaintiffs’ minor children to suffer extreme emotional distress.” The plaintiffs also incorporate by reference the allegation that the defendants “encouraged, created and tolerated an atmosphere of chaos, disruptiveness and violence”; that the children “were exposed on a daily basis to . . . physical and verbal violence”; and that the school became a “place of fear [where] learning could not and did not take place in any meaningful sense.”

“[F]or the plaintiff to prevail in a case for liability under . . . [the intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress; or that he knew or should have known that emotional distress was a likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiffs distress; and (4) that the emotional distress sustained by the plaintiff was severe. Hiers v. Cohen, 31 Conn. Sup. 305, 329 A.2d 609 (1973); 1 Restatement (Second), Torts § 46. Petyan v. Ellis, [200 Conn. 243, 253, 510 A.2d 1337 (1986)], quoting Murray v. Bridgeport Hospital, 40 Conn. Sup. 56, 62, 480 A.2d 610 (1984). Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind. Petyan v. Ellis, supra, 254 n.5, quoting W. Prosser & W. Keeton, Torts (5th Ed.) § 12, p. 60. Thus, [i]t is the intent to cause injury that is the gravamen of the tort; Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 53, 108 S. Ct. 876, 99 L. Ed. 2d 41 (1988) . . . .” (Internal quotation marks omitted.) DeLaurentis v. New Haven, 220 Conn. 225, 266-67, 597 A.2d 807 (1991). “Whether the defendant’s conduct and the plaintiffs resulting distress are sufficient to satisfy . . . these elements is a question, in the first instance, for [the] court. Only where reasonable minds can differ does it become an issue for the jury. Reed v. Signode Corporation, 652 F. Sup. 129, 137 (D. Conn. 1986); 1 Restatement (Second), Torts § 46, comment (h) (issue of extreme and outrageous conduct) and comment (j) (issue of severe emotional distress).” Mellaly v. Eastman Kodak Co., 42 Conn. Sup. 17, 18-19, 597 A.2d 846 (1991) (Berdon, J.).

The trial court found that the facts alleged in the complaint, even when construed in a light most favorable to the plaintiffs, do not describe conduct that exceeds all bounds usually tolerated by decent society. That court therefore concluded that the facts alleged, were not outrageous. We note that it has always been a relatively commonplace circumstance that some students are afraid of schoolteachers, examinations and other students. We also note that it is likely that students who experience these concerns also will suffer some degree of stress and anxiety, whether these acts are lawful and proper or wrongful and tortious in nature. To survive a motion to strike, therefore, there must be allegations that the extreme arid outrageous conduct “exceedfed] all bounds usually tolerated by decent society . . . .” (Emphasis in original.) Petyan v. Ellis, supra, 200 Conn. 254 n.5.

The plaintiffs in the present matter allege that the defendants affirmatively “encouraged, created and tolerated an atmosphere of chaos, disruptiveness and violence,” (emphasis added) that their children were exposed to physical and verbal violence and that the school became aplace of fear where learning could not and did not take place. The defendants concede in their brief to this court that “the plaintiffs . . . pleaded the first and fourth elements” needed to establish a prima facie case of intentional infliction of emotional distress. Our inquiry, therefore, centers on whether the plaintiffs have sufficiently pleaded the second and third elements set forth in Petyan v. Ellis, supra, 200 Conn. 253.

As to the second element, extreme and outrageous conduct, the plaintiffs allege that the defendants’ actions subjected the plaintiffs’ minor children to an “atmosphere of chaos, disruptiveness and violence” in which school became a “place of fear” where learning did not take place in “any meaningful sense.” Furthermore, the plaintiffs allege that this conduct continued for two years. The plaintiffs also allege that the Pagels School was the only public school in West Haven subjected to the entirety of the responsive classroom method, a method sold to them by Northeast Foundation for Children, the Massachusetts corporation that also employs Fenty-Morrison. Within the context that Fenty-Morrison implemented a method created by the company that employed her, knew of the chaos, disrup-tiveness and violence that continued over a two year period and caused the plaintiffs’ minor children distress, a trier of fact could find that this constitutes outrageous conduct on the defendants’ part.

As to the third element, the defendants argue that “the plaintiffs failed to allege the causation element altogether” and, moreover, that there is no “ ‘peculiar sensitivity’ which was intentionally exploited and designed to cause severe and emotional distress.” The plaintiffs, however, incorporate by reference the allegation that “[a]s a proximate cause of the acts and omissions of the defendants herein described, the plaintiffs’ minor children . . . suffered extreme emotional distress.” It is impossible to conceive that children would not be peculiarly susceptible to violence, especially under the alleged facts of this case. We can think of no reason why our society could or should countenance or suffer this type of conduct in a place of learning. We conclude that the extremely broad allegations contained in counts seven, eight and nine of the plaintiffs’ complaint, not addressed by any request to revise filed by the defendants, were sufficient to establish a cause of action sounding in intentional infliction of emotional distress, which should not have been stricken from the complaint.

The judgment is reversed only with respect to the intentional infliction of emotional distress counts and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

        The plaintiffs are Elizabeth Bell, who brought this action on behalf of her minor children, Stephanie Bell and Kristin Bell; Barbara Murphy-Finneran, who brought this action on behalf of her minor children, Jennifer Finneran, Kelly Finneran and Erin Finneran; and Paula Brown, who brought this action on behalf of her minor children, Elisa Brown, Kevin Brown, Timothy Brown and Daniel Brown.

       The defendants are the board of education of the city of West Haven and Ellen Fenty-Morrison, the principal of the Alma E. Pagels School.

       In educational malpractice cases, a plaintiff sues his or her academic institution for tortiously failing to provide adequate educational services; see, e.g., Peter W. v. San Francisco Unified School District, 60 Cal. App. 3d 814, 131 Cal. Rptr. 854 (1976); or for tortiously failing to diagnose educational impediments. See, e.g., Hoffman v. Board of Education, 49 N.Y.2d 121, 400 N.E.2d 317, 424 N.Y.S.2d 376 (1979); see generally, D. Morgan, ‘Liability for Medical Education,’ 8 J. Legal Med. 305, 307-15 (1987).” (Emphasis in original.) Gupta v. New Britain General Hospital, 239 Conn. 574, 591 n.15, 687 A.2d 111 (1996).

       The complaint originally contained counts ten through twelve, which pertained to equal protection claims brought pursuant to 42 U.S.C. § 1983. On the basis of these claims, the defendants removed the case to federal court. Thereafter, the defendants moved to dismiss all counts of the complaint. The federal court granted the defendants’ motion to dismiss the counts pertaining to the equal protection claims only and remanded the case to state court.

       The plaintiffs do not address the issue of whether their educational malpractice claims are distinct from their negligence claims. In their brief to this court, the plaintiffs state that “[t]he action was brought in nine counts on two legal grounds—intentional infliction of emotional distress and educational malpractice.” Furthermore, their appeal fails to address the action of the trial court in striking those counts addressed to the negligence claims. We decline to review whether the trial court improperly granted the motion to strike as to the negligence counts, as it is deemed to be abandoned. See Nazarko v. Conservation Commission, 50 Conn. App. 548, 550 n.2, 717 A.2d 850, cert. denied, 247 Conn. 940, 723 A.2d 318 (1998).

       The vast majority of courts to consider this issue have refused to recognize a cause of action for educational malpractice. See, e.g., Smith v. Alameda County Social Services Agency, 90 Cal. App. 3d 929, 941-42, 153 Cal. Rptr. 712 (1979); Peter W. v. San Francisco Unified School District, 60 Cal. App. 3d 814, 825, 131 Cal. Rptr. 854 (1976); Hunter v. Board of Education, 292 Md. 481, 489-90, 439 A.2d 582 (1982); Hoffman v. Board of Education, 49 N.Y.2d 121, 125, 400 N.E.2d 317, 424 N.Y.S.2d 376 (1979); Donohue v. Copiague Union Free School District, 47 N.Y.2d 440, 444-45, 391 N.E.2d 1352, 418 N.Y.S.2d 375 (1979); but see B.M. v. State, 200 Mont. 58, 63, 649 P.2d 425 (1982), on appeal after remand sub nom. B.M. by Berger v. State, 215 Mont. 175, 698 P.2d 399 (1985) (court found duty of care owed to special education students under Montana constitution).

       The phrase educational malpractice is a recent expansion of traditional tort law. The expression has been used to describe different causes of action, namely, failure to counsel and educate students adequately, in terms of needs and achievement; see, e.g., Peter W. v. San Francisco Unified School

        District, 60 Cal. App. 3d 814, 131 Cal. Rptr. 854 (1976); Wickstrom v. North Idaho College, 111 Idaho 450, 725 P.2d 155 (1986); Donohue v. Copiague Union Free School District, 47 N.Y.2d 440, 391 N.E.2d 1352, 418 N.Y.S.2d 375 (1979); Aubrey v. School District of Philadelphia, 63 Pa. Commw. 330, 437 A.2d 1306 (1981); and failure to make proper evaluations (testing and classifying and placement of students in suitable programs and facilities). See, e.g., Daniel B. v. Wisconsin Dept. of Public Instruction, 581 F. Sup. 585 (E.D. Wis. 1984), aff'd, 776 F.2d 1051 (7th Cir. 1985), cert. denied, 475 U.S. 1083, 106 S. Ct. 1462, 89 L. Ed. 2d 719 (1986); D.S.W. v. Fairbanks North Star Borough School District, 628 P.2d 554 (Alaska 1981); Brantley v. District of Columbia, 640 A.2d 181 (D.C. 1994); Tubell v. Dade County Public Schools, 419 So. 2d 388 (Fla. App. 1982); Hunter v. Board of Education, 292 Md. 481, 439 A.2d 582 (1982); Hoffman v. Board of Education, 49 N.Y.2d 121, 400 N.E.2d 317, 424 N.Y.S.2d 376 (1979); Snow v. New York, 98 App. Div. 2d 442, 469 N.Y.S.2d 959 (1983), aff'd, 64 N.Y.2d 745, 475 N.E.2d 454, 485 N.Y.S.2d 987 (1984); see generally note, “Hunter v. Board of Education & Doe v. Board of Education—No Cause of Action for Educational Malpractice Against Public School Teachers and Psychologists,” 42 Md. L. Rev. 582, 583-85 (1983) (discussing two categories of educational malpractice claims).

       See footnote 6.

       With respect to the public policy concerns, the court in Peter W. v. San Francisco Unified School District, supra, 60 Cal. App. 3d 825, stated: “Few of our institutions, if any, have aroused the controversies, or incurred the public dissatisfaction, which have attended the operation of the public schools during the last few decades. Rightly or wrongly, but widely, they are charged with outright failure in the achievement of their educational objectives; according to some critics, they bear responsibility for many of the social and moral problems of our society at large. Their public plight in these respects is attested in the daily media, in bitter governing board elections, in wholesale rejections of school bond proposals, and in survey upon survey. To hold them to an actionable duty of care, in the discharge of their academic functions, would expose them to the tort claims—real or imagined—of disaffected students and parents in countless numbers. They are already beset by social and financial problems which have gone to major litigation, but for which no permanent solution has yet appeared. . . . The ultimate consequences, in terms of public time and money, would burden them—and society—beyond calculation.” (Citations omitted; internal quotation marks omitted.)
      In Donohue v. Copiague Union Free School District, supra, 47 N.Y.2d 444, the New York Court of Appeals noted that a complaint alleging educational malpractice might, on the pleadings, state a cause of action under traditional notions of tort law. The court further noted, however, that, as a matter of public policy, courts should not entertain such claims because that would interfere with the responsibility for the administration of a public school system in school administrative agencies. Id. Our review of the record in the present matter does not indicate that the plaintiffs have availed themselves of the opportunity to consult the administrative agencies. The court also noted that it did not discount the possibility that there could be “gross violations of defined public policy which tire courts would be obliged to recognize and correct.” (Internal quotation marks omitted.) Id., 445.

       The Restatement (Second) of Torts further describes the conduct as follows: “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ ” 1 Restatement (Second), Torts § 46, comment (d), p. 73 (1965).

       To protect themselves against broad based allegations, the defendants could have filed a request to revise pursuant to Practice Book § 10-35, formerly § 147, to compel the plaintiffs to amend the complaint to provide "a more complete or particular statement of the allegations . . . Our review of the record indicates that the defendants failed to do this.


source: Caselaw Access Project

author: DALY, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ROBERT WHITE
    (AC 18015)
    Hennessy, Sullivan and Daly, Js.

      Argued June 3
    officially released October 26, 1999

      Cameron Dorman, special public defender, for the appellant (defendant).

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Eva Lenczewski, assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant, Robert White, appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l). On appeal, the defendant claims that the trial court improperly (1) found that the state presented sufficient evidence to sustain the verdict, (2) instructed the jury on the element of lack of consent, (3) admitted statements made by the defendant under the admissions exception to the hearsay rule and (4) admitted evidence that the defendant had used an alias. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant was the brother-in-law of the victim’s best friend and was known to the victim from prior social gatherings. On the evening of July 6, 1996, the defendant arrived at the victim’s residence unannounced. The victim, a thirty-two year old female, was home with one of her daughters. The defendant was very upset and crying because he and his wife had been arguing. He explained to the victim that his wife had banished him from their residence, and that he had been sleeping at work and in his truck and needed a shower. The victim admitted the defendant into her residence and allowed him to use the shower. She did not feel threatened by the defendant because she knew him.

After showering, the defendant stated that he needed a place to sleep, and the victim told him that he could stay for one week and sleep on a couch. Shortly thereafter, the defendant informed the victim that he was leaving to attend a party. The defendant did not return until 9:30 the following morning.

On July 7, 1996, after the victim’s daughter left to visit with her father, the defendant and the victim began discussing his marital problems. As the conversation progressed, the defendant began what the victim described as sexual talk and offered to give the victim a massage, which she declined. Later that day, the defendant resumed the “sexual talk” in a suggestive tone that caused the victim to feel uncomfortable. At one point, the victim went outside to avoid the defendant. The defendant followed her, however, and continued talking in a sexually suggestive manner. The victim ignored him but felt he was staring at her. The defendant again sought to give the victim a massage and she again refused.

The victim went back inside and was followed by the defendant. The defendant approached the victim from behind and began groping her and fondling her breasts. The victim asked, “[Wjhat are you doing?” and the defendant pushed her onto the couch, pinning her arms behind her. In the process, the defendant fell onto the couch with her, and his weight and leverage held the victim against the couch, rendering her immobile. The defendant had a “very mean look” on his face, removed the victim’s shorts, forcibly held her legs down and performed cunnilingus on her. After the defendant stopped, he stood and started to remove his clothing. The victim was dazed when she got up from the couch and tried to walk toward the bathroom, but the defendant guided her into the bedroom, pushed her onto the bed and engaged in vaginal intercourse.

During this ordeal, the victim was horrified and experienced great pain. Finally able to free herself, she ran into the bathroom and ordered the defendant to leave. The victim was initially reluctant to contact the police, fearing that the defendant would harm her. After contacting a friend and a rape crisis center, she notified the police later that same day.

The defendant, who had four prior felony convictions, admitted at trial that he performed cunnilingus and engaged in vaginal intercourse with the victim, but claimed that their encounter was consensual. The jury found the defendant guilty of two counts of first degree sexual assault. This appeal followed.

I

The defendant first claims that the trial court improperly denied his motion for judgment of acquittal. Specifically, he claims that the state presented insufficient evidence to establish the element of lack of consent. We do not agree.

“The standards by which we review claims of insufficient evidence are well established. When reviewing a sufficiency of the evidence claim, our courts apply a two-prong test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Jacques, 53 Conn. App. 507, 520, 733 A.2d 242 (1999).

In the present case, the defendant was charged with violating § 53a-70 (a) (1) by compelling the victim to engage in cunnilingus, which constitutes sexual intercourse as defined by General Statutes § 53a-65 (2), by the use of force, and by compelling the victim to engage in vaginal intercourse by the use of force. At trial, the victim testified extensively as to the events at issue and described how the defendant used his superior strength to restrain her while sexually assaulting her. Although the defendant testified that the victim consented, we note that it is “the absolute right and responsibility of the juiy to weigh conflicting evidence and to determine the credibility of the witnesses.” (Internal quotation marks omitted.) State v. Jacques, supra, 53 Conn. App. 521. “We cannot retry the facts orpass on the credibility of the witnesses.” (Internal quotation marks omitted.) State v. Santiago, 245 Conn. 301, 313, 715 A.2d 1 (1998). “If evidence . . . should convince a jury beyond a reasonable doubt that an accused is guilty, that is all that is required for a conviction.” (Internal quotation marks omitted.) State v. Roy, 38 Conn. App. 481, 488, 662 A.2d 799 (1995), cert. denied, 237 Conn. 902, 674 A.2d 1333 (1996). The jury, therefore, was entitled to believe the testimony of the victim regarding the defendant’s use of force.

After reviewing the evidence in the light most favorable to sustaining the verdict, we conclude that the jury reasonably could have concluded from the facts and the inferences reasonably drawn therefrom that the evidence established beyond a reasonable doubt that the defendant compelled the victim to submit to both vaginal intercourse and cunmlingus by the use of force. Therefore, the trial court properly denied the defendant’s motion for judgment of acquittal because the evidence was sufficient to establish that the defendant was guilty of sexual assault in the first degree.

II

The defendant next claims that the trial court improperly instructed the jury on the element of lack of consent. This claim is without merit.

We note that in his brief, the defendant concedes that he did not request a charge or take exception to the charge given to the jury. He now seeks review of this claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We conclude that the defendant’s claim does not satisfy the third condition of Golding.

“An accused has a fundamental right, protected by the due process clauses of the federal and Connecticut constitutions, to be acquitted unless proven guilty of each element of the charged offense beyond a reasonable doubt. . . . This court has consistently held that a claim that the judge improperly instructed the jury on an element of an offense is appealable even if not raised at trial.” (Internal quotation marks omitted.) State v. Delgado, 50 Conn. App. 159, 170, 718 A.2d 437 (1998). Based on the foregoing and because the record is adequate for review, we conclude that the first two conditions of Golding have been satisfied.

We must, however, review the third requirement of Golding to determine whether the alleged constitutional violation clearly exists and whether the defendant was deprived of a fair trial. “[U]nder . . . Golding, a defendant may prevail on an unpreserved constitutional claim of instructional error only if, considering the substance of the charge rather than the form of what was said, it is reasonably possible that the juiy was misled. ... In determining whether the jury was misled, [i]t is well established that [a] charge to the jury is not to be critically dissected for the puipose of discovering possible inaccuracies of statement, but is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . Furthermore, [a] jury instruction is constitutionally adequate if it provides the jurors with a clear understanding of the elements of the crime charged, and affords them proper guidance for their determination of whether those elements were present.” (Internal quotation marks omitted.) Id., 171.

In the present case, the defendant contends that the jury instruction was improper because the jury was “misled to believe that the victim must ‘actually]’ or ‘truly’ consent” to sexual intercourse. As we previously noted, however, first degree sexual assault does not include, as an element of that offense, the lack of consent. Furthermore, “[t]he fact that any act engaged in under compulsion would necessarily be nonconsensual; State v. Esposito, 192 Conn. 166, 172-73, 471 A.2d 949 (1984); does not impose upon the court a duty to instruct the jury on consent as if it were ... a statutory element. The statutory definition of the crime, which in plain language requires that it be the use of force or the threat of the use of force which serves to compel another person to engage in sexual intercourse, is sufficient, in and of itself, to consider whether the victim, in fact, consented to the act.” (Internal quotation marks omitted.) State v. Mackor, 11 Conn. App. 316, 324, 527 A.2d 710 (1987).

After reviewing the trial court’s instructions to the jury as a whole, we conclude that they were a correct statement of the law. The court’s charge informed the jury of the elements of the crime of first degree sexual assault. Indeed, in State v. Bouier, 44 Conn. App. 548, 553 n.3, 554-55, 690 A.2d 889, cert. denied, 241 Conn. 903, 694 A.2d 40 (1997), we previously upheld a similar jury instruction and rejected a claim similar to the one raised by the defendant in the present case. Accordingly, we conclude that it was not reasonably possible that the jury was misled. We further conclude that the alleged constitutional violation does not clearly exist, and that the defendant’s claim, therefore, fails to satisfy the third requirement of Golding.

Ill

The defendant’s third claim is that the trial court improperly admitted under the admissions exception to the hearsay rule statements he made to the investigating officer regarding a sexual compulsion problem. We do not agree.

Additional facts are necessary for the resolution of this claim. On the day following the sexual assault, the defendant went to the Naugatuck police station and voluntarily provided a written statement concerning the incident. The police had not summoned or requested that the defendant come to the station, nor had they questioned him regarding the incident or the victim’s complaint. The defendant testified that he went to the police station after his wife informed him that the victim had telephoned and made accusations that she had been sexually assaulted by the defendant.

Laura Harrison, a detective with the Naugatuck police department, testified that when asked why he came to the police station, the defendant provided the same explanation to her. Harrison further testified that upon arrival at the station, the defendant was observed to be “extremely upset, extremely nervous,” and spent approximately two hours writing his statement and that “it seemed like he struggled to go through it.” In addition, Harrison testified as to oral statements made by the defendant while he was at the police station, in which he admitted having sexual compulsion problems. Specifically, Harrison testified that the defendant stated that he “has a real problem with sex . . . needs to have it all the time and can’t help himself or control himself.” Harrison also testified that the defendant told her that he was experiencing marital problems as a result of his sexual compulsions and infidelity.

The trial court admitted the testimony concerning the defendant’s statements regarding his sexual compulsions pursuant to the party admission exception to the hearsay rule. The defendant objected on the grounds that the testimony was irrelevant and “more highly prejudicial than probative under the circumstances.” The court found that the testimony’s probative value outweighed the prejudice.

“An out-of-court statement offered to prove the truth of the matter asserted is hearsay and is generally inadmissible unless an exception to the general rule applies.” (Internal quotation marks omitted.) State v. Barnett, 53 Conn. App. 581, 604, 734 A.2d 991, cert. denied, 250 Conn. 918, 738 A.2d 659 (1999). “The words and acts of a party-opponent are generally admissible against him [or her] under the admission exception.” (Internal quotation marks omitted.) State v. Spivey, 53 Conn. App. 652, 654, 736 A.2d 153, cert. denied, 249 Conn. 928, 738 A.2d 653 (1999). Indeed, “[t]he statements made out of court by a party-opponent are universally deemed admissible when offered against him ... so long as they are relevant and material to issues in the case. Although the theories for admissibility differ, the vast weight of authority, judicial, legislative, and scholarly, supports the admissibility without restriction of any statement of a party offered against that party at trial.” (Emphasis in original; internal quotation marks omitted.) In re Jessica B., 50 Conn. App. 554, 571-72, 718 A.2d 997 (1998). “An admission, as applied to criminal cases, is the avowal or acknowledgment of a fact or of circumstances from which guilt may be inferred, and only tending to prove the offense charged, but not amounting to a confession of guilt.” (Emphasis in original; internal quotation marks omitted.) State v. Spivey, supra, 654.

In the present case, the central issue at trial was whether the defendant compelled the victim to engage in sexual intercourse by the use of or by the threat of use of force. The defendant’s statements concerning his sexual compulsion and self-control problems clearly were relevant, material and highly probative on the issue of whether he compelled the victim to engage in sexual intercourse. “The trial court’s discretionary determination that the probative value of evidence is not outweighed by its prejudicial effect will not be disturbed on appeal unless a clear abuse of discretion is shown. State v. Joly, 219 Conn. 234, 253, 593 A.2d 96 (1991).” (Internal quotation marks omitted.) State v. Spivey, supra, 53 Conn. App. 655.

After reviewing the record, transcript and briefs, we conclude that the trial court did not abuse its broad discretion concerning evidentiary matters by admitting into evidence the defendant’s statements as an admission of a party opponent.

IV

The defendant’s final claim is that the trial court improperly admitted evidence concerning his use of an alias. This claim is without merit.

Additional facts are necessary for our resolution of this claim. The state informed the court and the defendant that if the defendant testified it intended to inquire on cross-examination as to his use of another name to identify himself. The defendant filed a motion in limine in an effort to prevent the state from pursuing that line of questioning. As the court had not yet ruled on that motion before the defendant testified, defense counsel renewed the motion prior to the state’s cross-examination of the defendant. Defense counsel argued that the defendant’s use of an alias should not be heard by the jury because he had not used the alias for a deceitful puipose. The court denied the defendant’s motion and permitted the state to inquire as to the defendant’s use of other names. The court further stated that defense counsel could “rehabilitate” the defendant.

The state asked three questions of the defendant concerning two names he had used. Specifically, the state inquired as to whether the defendant had ever used the names Robert Gensler and Robert White, and when he switched from Gensler to White. The defendant testified that he was once known as Robert Gensler but went to Probate Court and changed his name back to White, his birth name, because he and his wife wanted to name their son Robert A. White III. Defense counsel did not conduct redirect examination.

“When a witness voluntarily testifies ... he asks the jury to believe him. The jury should be informed about the sort of person asking them to take his word. . . . Matters which might not be strictly relevant on direct examination may be so on cross-examination where that matter is explored for the purpose of credibility. Given that function of cross-examination in shedding light on the credibility of the witness’ direct testimony, [t]he test of relevancy is not whether the answer sought will elucidate any of the main issues, but whether it will to a useful extent aid the court or jury in appraising the credibility of the witness and assessing the probative value of the direct testimony. ... A question is within the scope of the direct examination if it is intended to rebut, impeach, modify or explain any of the defendant’s direct testimony . . . .” (Citations omitted; internal quotation marks omitted.) State v. Hernandez, 224 Conn. 196, 207, 618 A.2d 494 (1992).

“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 .... State v. Sullivan, 244 Conn. 640, 653, 712 A.2d 919 (1998). Our review of evidentiary rulings is limited. Evi-dentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. . . . State v. Alvarez, 216 Conn. 301, 306, 579 A.2d 515 (1990); see also State v. Robinson, 227 Conn. 711, 732, 631 A.2d 288 (1993); State v. Boles, 223 Conn. 535, 549, 613 A.2d 770 (1992).” (Internal quotation marks omitted.) State v. Shehadeh, 52 Conn. App. 46, 50, 725 A.2d 394 (1999).

In the present case, the defendant testified on direct examination that the victim consented to sexual intercourse, which contradicted testimony that the encounter was not consensual. As a result, a central question before the jury was the credibility of the witnesses. The state is entitled, on cross-examination, to pursue matters not strictly relevant on direct examination where those matters are pursued for the purpose of credibility. State v. Hernandez, supra, 224 Conn. 207. The state’s inquiry on cross-examination into the defendant’s use of other names was, therefore, within the scope of the defendant’s direct testimony.

While we note that “ ‘the term “alias” has come to connote in the public mind some previous criminal activity . . . [and] [i]f that [is] true, the constant repetition of the word “alias” might well produce a mental reaction unfavorable to a defendant which, if unexplained by him, could make the presumption [of innocence] of doubtful value’ ”; State v. Peary, 176 Conn. 170, 178, 405 A.2d 626 (1978), cert. denied, 441 U.S. 966, 99 S. Ct. 2417, 60 L. Ed. 2d 1072 (1979); such is not the case here. In the present case, there was no constant repetition or reference to the defendant’s use of another name and there was an unchallenged explanation by the defendant that provided a plausible and legitimate reason for legally changing his name. Such an. explanation, we conclude, sufficiently removed any unfavorable predisposition that may have existed in the minds of the jury toward the defendant.

After reviewing the record and transcript, we conclude that the trial court did not abuse its discretion in admitting the evidence concerning the defendant’s use of an alias because the state’s questions were appropriate to assist the jury in assessing the defendant’s credibility.

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 (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .”

       The defendant had been convicted of two counts of first degree robbery in 1985 and two weapons charges in 1991 and 1995.

       We note that lack of consent is not an element of first degree sexual assault under § 53a-70 (a). State v. Coleman, 52 Conn. App. 466, 469, 727 A.2d 246, cert. denied, 249 Conn. 902, 732 A.2d 776 (1999). Pursuant to § 53a-70 (a) (1), the state must prove that “ ‘the defendant (1) compelled the victim to engage in sexual intercourse (2) by use of force or threat of force.’ ” Id. The lack of consent, however, “is implicit” where forcible compulsion is established beyond a reasonable doubt. State v. Clinkscales, 21 Conn. App. 411, 419, 574 A.2d 243, cert. denied, 215 Conn. 815, 576 A.2d 545 (1990). We will therefore review the defendant’s claim as one asserting that there was insufficient evidence to establish that the defendant compelled the victim to engage in sexual intercourse by the use of force.

       General Statutes § 53a-65 provides in relevant part: “As used in this part, except section 53a-70b, the following terms have the following meanings
      “(2) ‘Sexual intercourse’ means vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex. Its meaning is limited to persons not married to each other. Penetration, however slight, is sufficient to complete vaginal intercourse, anal intercourse or fellatio and does not require emission of semen. Penetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim’s body. . . .”

       General Statutes § 53a-65 (7) provides in relevant part: “ ‘Use of force’ means . . . (B) use of actual physical force or violence or superior physical strength against the victim.”

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

       The court began instructing the jury by reading the relevant portion of § 53a-70 (a) (1) almost verbatim. The court further instructed the jury: “For you to find the defendant guilty of [sexual assault in the first degree] the state must prove the following elements beyond areasonable doubt. Number one, that the defendant compelled another person [the victim] to engage in sexual intercourse, and number two, that the sexual intercourse was accomplished by the use of force against [the victim].” After providing the statutory definition of sexual intercourse, the court continued: “Compelled has its ordinary meaning. It means that the victim does not consent and that the defendant must have required the victim to engage in sexual intercourse against her will. . . . The state must prove it beyond a reasonable doubt that the defendant compelled the victim ... to engage in sexual intercourse by the use of force against [the victim]. Use of force means that the defendant must have used actual physical force or violence or superior physical strength to compel the victim to submit to sexual intercourse. If you find that the victim consented to the act of sexual intercourse, you cannot find that the act was compelled. Consent must have been actual and not simply acquiescence brought about by force, by fear or by shock. The act must have been truly voluntary on the part of the victim. Consent may be expressed or you may find it was implied from the circumstances that you find existed. Whether there was consent is a question of fact for you to determine.”

       See footnote 3.


author: SCHALLER, J.

text:
    JOSE QUINTANA v. COMMISSIONER OF CORRECTION
    (AC 18421)
    Landau, Schaller and Daly, Js.

      Argued April 22
    officially released October 26, 1999

      Norman A. Pattis, for the appellant (petitioner).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Robin Lipsky, assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The petitioner, Jose Quintana, appeals from the judgment of the habeas court dismissing his amended petition for a writ of habeas corpus. The petitioner claims that the habeas court improperly determined that he was not entitled to a new trial. Specifically, the petitioner claims that the habeas court improperly failed to find that, at his trial, he was deprived of his constitutional rights (1) to due process of law, (2) to confront the witnesses against him and (3) to effective assistance of counsel. We affirm the judgment of the habeas court.

The following facts and procedural history are necessary to the disposition of this appeal. In 1987, a jury found the petitioner guilty of felony murder in violation of General Statutes § 53a-54c. The facts established at the petitioner’s criminal trial, as reported in State v. Quintana, 209 Conn. 34, 36-37, 547 A.2d 534 (1988), are as follows: “The jury could reasonably have found that on the evening of March 11,1986, the victim, Robert Chrisman, was [fatally] stabbed in the chest on a sidewalk near his apartment in Waterbury. Police responding to a call reporting the incident found a silver-colored aluminum cigarette case and cigarette lighter on the sidewalk near the victim. The victim’s fiancee, who later identified his body, testified that she did not recognize the lighter and cigarette case as belonging to the victim and had never seen them in his possession. The police officers at the scene collected the lighter and cigarette case and brought them to police headquarters for forensic examination. Police experts later determined that fingerprints on both of these items were the [petitioner’s].

“The [petitioner’s] former girlfriend, Jeannette Ber-man, testified that in a conversation with her two days after the stabbing incident, the [petitioner] admitted having stabbed the victim in self-defense in an altercation that, according to the [petitioner], had been initiated by the victim. She also identified the cigarette case and lighter that police had recovered from the crime scene as belonging to the [petitioner].

“Berman further testified that, a few days after the murder, she picked up the [petitioner] in her car at a prearranged meeting place pursuant to his instructions. As they drove around Waterbury, the [petitioner] ordered her to pull over to pick up a friend of his whom he saw walking nearby. She identified the passenger as Gregorio Hernandez, and testified that the [petitioner] and Hernandez subsequently carried on a conversation in Spanish in the back seat of her car while she drove.

“Hernandez testified at the [petitioner’s] probable cause hearing and again at the trial that, during this back seat conversation, the [petitioner] confided in Hernandez that he had killed [the victim] during an attempted robbery.” On direct appeal, our Supreme Court affirmed the judgment of conviction.

Following the disposition of the petitioner’s direct appeal, he instituted a habeas corpus proceeding. The relevant facts, as discussed in Quintana v. Warden, 220 Conn. 1, 3-4, 593 A.2d 964 (1991), are as follows: “The petitioner claimed before the habeas court that he had been denied effective assistance of counsel because his trial counsel failed adequately to cross-examine the state’s principal witness and to investigate the petitioner’s claim of self-defense. Specifically, the petitioner argued that his attorney should have more thoroughly examined Hernandez on the issue of the reward money [from Crime Stoppers] and any arrangements he might have made with the police in return for testifying against the petitioner in consideration of leniency with respect to a weapons charge that was pending against him. The petitioner also claimed he had told his trial counsel that he had suffered a laceration on his back during the altercation with the victim, but that his trial counsel had failed to photograph the wound or to have a doctor examine it.

“The habeas court found that proof of the felony murder charge consisted principally of Hernandez’ testimony, that the stabbing had occurred as an incident to a robbery, and that the petitioner’s trial counsel had not aggressively cross-examined Hernandez concerning the reward money or his motives for testifying. Furthermore, the habeas court found that the petitioner’s trial counsel had not adequately investigated the petitioner’s alleged injury and claim of self-defense and that such an investigation might have produced evidence that would have seriously undermined the state’s case on the felony murder charge. The habeas court concluded that the appropriate standard for examining claims of ineffective assistance of counsel was set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984), and that, under the Strickland test, the petitioner had demonstrated that he had not been adequately represented. The habeas court therefore granted the petition for a writ of habeas corpus and ordered a new trial.” From that judgment, the state appealed to this court, and the appeal was thereafter transferred to the Supreme Court pursuant to Practice Book § 65-1. Quintana v. Warden, supra, 220 Conn. 4. Our Supreme Court concluded that the habeas court had applied an incorrect standard in reviewing the petitioner’s claim of ineffective assistance of counsel, and reversed the judgment and remanded the case for a new hearing on the habeas petition. Id., 6.

Subsequently, the petitioner proceeded with this fourth amended petition containing four counts. The first and fourth counts allege a deprivation of the petitioner’s right to counsel and actual innocence, respectively. The petitioner has abandoned both of those claims on appeal.

The second count alleges that the petitioner was deprived of his right to effective assistance of counsel. In support of this claim, the petitioner argues that he was ineffectively represented at trial by attorney Paul Yamin. The petitioner claimed that Yamin failed to investigate potential witnesses adequately and to pursue the petitioner’s claim of self-defense. Hernandez testified that the petitioner had admitted to him that he had stabbed the victim during a robbery. The petitioner claims that Yamin failed to investigate the circumstances under which Hernandez’ original statement was given to the police.

The third count, labeled “due process,” alleges that the petitioner was deprived of his rights (1) to confront the witnesses against him and (2) to exculpatory information. In support of this claim, the petitioner alleged that Hernandez contacted an agency in Waterbury known as Crime Stoppers prior to testifying at the petitioner’s probable cause hearing and at trial. Hernandez was told by Crime Stoppers that he would receive money for his cooperation in prosecuting the charges against the petitioner if the petitioner was convicted. This arrangement was unknown to the petitioner or his attorney because of either Yamin’s inadequate investigation, the Waterbury police department’s failure to inform the state’s attorney or the state’s attorney’s failure to inform the petitioner or his attorney. Following a hearing, the habeas court dismissed the petition. This appeal followed.

Central to all of the petitioner’s claims is that Hernandez received compensation from Crime Stoppers in exchange for information regarding the victim’s murder. The habeas court made extensive findings and conclusions as to Crime Stoppers, its relationship to the police department and the relationship between the department and Hernandez.

The habeas court found the following facts. Crime Stoppers is a civic organization with a civilian board of directors that aids local police departments in solving crimes. Crime Stoppers has a telephone number that rings at the police department where a police officer is assigned to be the “Crime Stoppers officer.” The number is not connected to the department’s switchboard.

Through local advertisements, citizens are encouraged to call Crime Stoppers to give information about unsolved crimes. When a person calls Crime Stoppers, he or she is given a code number by the officer and is told to call back at a later date to see whether the information has led to an arrest. If such is the case, the caller is given a reward.

In addition to the Crime Stoppers officer, another officer is assigned Crime Stoppers duties. This is the “Crime Stoppers liaison officer.” After acquiring information from the Crime Stoppers officer, the liaison officer meets with the Crime Stoppers board at its monthly meeting to report whether telephone calls have resulted in arrests. If so, the board votes to award the caller a cash reward, the amount of which depends on the seriousness of the crime. At the time of the stabbing in this case, arrests for murder usually warranted a reward of $1000. It is normal procedure for the president of the board to write a check and give it to the liaison officer who, in turn, cashes it and deposits the money at a drop-off point where it can be picked up by the caller.

The city of Waterbury supports the local Crime Stoppers group by paying the Crime Stoppers officer’s salary as well as the cost of his office and telephone. Both the Crime Stoppers officer and the liaison officer are regular members of the police department whose duties are assigned by the superintendent of police. Their Crime Stoppers duties are within the scope of their duties as police officers.

Once the Crime Stoppers officer receives a telephone call and assigns the caller a code number, the officer completes a Crime Stoppers form that includes a summary of the proffered information. The original form is kept in the Crime Stoppers officer’s office in a filing cabinet for which only he has the key, and a copy is sent to the relevant department division for action. Although the form is kept in the police department, it is not made a part of the department’s official file. The copy sent to the department division may be discarded or returned to the Crime Stoppers officer. Because it is generated by the Crime Stoppers officer, it is not considered to be a police document. Consequently, when the police file is turned over to the state’s attorney, Crime Stoppers documents are not included.

The Crime Stoppers’ standard operating procedure does not accurately reflect what happened in Hernandez’ case. The habeas court’s findings reveal that there was one person who provided information on the victim’s murder and this person was given code number 368. The information was not brought to the attention of the Crime Stoppers officer through an outside telephone call, but instead, was transmitted to the officer by a member of the police department who had questioned Hernandez.

The Crime Stoppers officer prepared a report in the case, but completed only that portion of it that identified the names of the individuals arrested and the reward information. The reward information was provided to him by his supervisor. He stated that he did not complete the first eight lines of the form or its narrative portion. The form indicates that a murder occurred on March 11, 1986, and that a call was received on March 17,1986. On the form, the petitioner and another individual, Blas Oliveras, were identified as suspects. The form also indicates that the information was referred to the detective division and that the petitioner and Oliveras were arrested and charged with felony murder. Next to the word “reward,” “$1000” is written; next to the typewritten “date paid” is written “3/19/86.” Above the “date paid” notation, “$200” is written, and next to an asterisk is written: “10/8/86 - $800 Back to Crime Stoppers (from [Detective Bureau] to Cap. Boyce) $800 paid 6/16/87 1300 Quality Auto Sales.”

The narrative portion of the form reads as follows: “On 3/19/86 Chief of Det Bur notified Crime Stoppers that above caller 368 had contacted Det Bur on 3/17/86 and provided essential information, which was corroborated, providing the identity of murder suspects and enabling [police] to obtain and subsequently serve arrest warrants for two persons. In lieu of this and the additional fact that the caller would waive any right to anonymity and will be testifying in this matter—that caller should be entitled to the reward offered .... This request was subsequently presented to the chairman of Crime Stoppers board for his approval or denial.”

At the habeas hearing, Hernandez testified that his statements were the product of police coercion, notwithstanding his prior testimony at the petitioner’s probable cause hearing and trial as well as at Oliveras’ trial. He testified that the police told him that he would be implicated in the murder if he did not give a statement. He identified the cigarette lighter and case only after the police said they belonged to the petitioner. He further testified that he had no knowledge of the murder and that his statement contains only facts told to him by the police. With respect to the reward, Hernandez stated that the police offered him money for his cooperation. He testified that he received $200 prior to the petitioner’s trial and $800 after Oliveras’ trial. He claimed that he was aware that he would receive the second installment only if he testified at the petitioner’s trial. The habeas court, on the basis of its observations of Hernandez, as well as Hernandez’ having admitted that he had committed perjury on three prior occasions, determined that his testimony, without corroboration, was untrustworthy.

With this in mind, the habeas court concluded that the police department investigative file reflects that the factual information given to detectives by Hernandez was consistent with his testimony at the probable cause hearing and at trial. The habeas court further found that the information Hernandez provided to detectives was the information contained in the Crime Stoppers form. That court also found that Crime Stoppers authorized a $1000 reward, which was made available to the detective bureau, that $200 was paid to Hernandez and that $800 was subsequently returned to Crime Stoppers but was later paid to Hernandez. On the basis of the evidence adduced at the habeas hearing, the habeas court inferred that Crime Stoppers was contacted by unknown members of the police department who received $1000 and paid it to Hernandez in two installments. Finally, the habeas court determined that Hernandez was the person designated as number 368.

Yamin requested, by motion, all exculpatory information and material from the state. Information that Hernandez had been paid funds by members of the police department was within the department’s possession. The state’s attorney did not have knowledge of the payments made to Hernandez and, consequently, the information regarding the payments was not conveyed to the petitioner or his counsel. Additional facts from the habeas court’s extensive findings will be set forth as they become relevant in the context of the petitioner’s claims.

Before addressing the petitioner’s claims, we set forth our standard of review of habeas corpus proceedings. “The underlying historical facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . Historical facts constitute a recital of external events and the credibility of their narrators. ‘So-called mixed questions of fact and law, which require the application of a legal standard to the historical-fact determinations, are not facts in this sense.’ Townsend v. Sain, 372 U.S. 293, 309 n.6, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963). Whether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. Strickland v. Washington, supra, 466 U.S. 698. As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Citation omitted.) Copas v. Commissioner of Correction, 234 Conn. 139, 152-53, 662 A.2d 718 (1995). The remaining two constitutional claims made by the petitioner in this appeal also are mixed questions of fact and law warranting plenary review.

I

The petitioner first claims that the habeas court improperly failed to find that he was deprived at trial of his constitutional right to due process of law. Specifically, he claims that the habeas court should have found that he is entitled to a new trial because the state failed to disclose to him or his attorney the exculpatory and material fact that Hernandez was paid for his testimony. The crux of his argument is that because only Hernandez testified that the petitioner stabbed the victim while attempting to rob him, the result of his trial would have been different if the petitioner had been in possession of the information regarding the payments and was able, therefore, to use that information to impeach Hernandez. We disagree.

“The United States Supreme Court has held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the [government], Brady v. Maryland, [373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)]; State v. Walker, 214 Conn. 122, 126, 571 A.2d 686 (1990); State v. Cohane, 193 Conn. 474, 495, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984) .... This type of violation of the defendant’s due process rights is commonly referred to as a Brady violation. State v. Morales, 232 Conn. 707, 714, 657 A.2d 585 (1995).” (Citation omitted; internal quotation marks omitted.) State v. Connelly, 46 Conn. App. 486, 512, 700 A.2d 694 (1997), cert. denied, 244 Conn. 907, 908, 713 A.2d 829, cert. denied, 525 U.S. 907, 119 S. Ct. 245, 142 L. Ed. 2d 201 (1998). “To prevail on a Brady claim, the defendant bears a heavy burden to establish: (1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that it was material.” (Internal quotation marks omitted.) State v. Burke, 51 Conn. App. 328, 333, 723 A.2d 327 (1998), cert. denied, 248 Conn. 901, 732 A.2d 177 (1999).

At the time of trial, the state’s attorney did not have knowledge of the reward payment arrangement between Crime Stoppers, the police and Hernandez. Nevertheless, the state’s attorney breached the duty to disclose. “Police are treated as an arm of the prosecution for Brady purposes, and the taint on the trial is no less if they, rather than the state’s attorney, were guilty of the nondisclosure. . . . The State’s duty of disclosure is imposed not only upon its prosecutor, but also on the State as a whole, including its investigative agencies. Therefore, if the [exculpatory materials] were held by the . . . police department we would be compelled to conclude that, constructively, the State’s attorney had both access to and control over the documents.” (Citations omitted; emphasis added; internal quotation marks omitted.) Demers v. State, 209 Conn. 143, 153, 547 A.2d 28 (1988). Because the habeas court’s findings clearly show that the police department knew of the payment to the petitioner and that it did not disclose the information, we conclude that the petitioner has satisfied the first element of Brady.

We also conclude that the suppressed evidence would have been favorable to the petitioner’s defense. Knowledge that Hernandez was paid for his testimony would aid the petitioner in his attempt to impeach the witness. Moreover, our Supreme Court has recognized that “[i]mpeachment evidence as well as exculpatory evidence falls within Brady's definition of evidence favorable to an accused.” State v. Monteeth, 208 Conn. 202, 213, 544 A.2d 1199 (1988).

“The test of materiality of nondisclosed exculpatory evidence requires that there be a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. . . . [W]here there is no reasonable probability that disclosure of the exculpatory evidence would have affected the outcome, there is no constitutional violation under Brady. . . . State v. McIntyre, 242 Conn. 318, 323-24, 699 A.2d 911 (1997). [T]he mere possibility that an item of undisclosed evidence might have helped the defense or might have affected the outcome . . . does not establish materiality in the constitutional sense.” (Internal quotation marks omitted.) State v. Santiago, 245 Conn. 301, 311, 715 A.2d 1 (1998).

The habeas court found substantial consistencies between the testimony of Berman, the petitioner’s former girlfriend, and that of Hernandez. Both testified that the petitioner admitted that he had stabbed the victim to death on the evening of March 11, 1986, on Cherry Street. Both testified that the petitioner had waited outside a grocery store that he had seen the victim enter. The stabbing took place when the victim left the store. Both Berman and Hernandez testified that Hernandez had been picked up in a car a few days after the stabbing by another girl and the petitioner. While in the car, the petitioner conversed with Hernandez. Both witnesses identified the cigarette case and lighter found at the scene of the crime as being the petitioner’s. Even if the petitioner had the benefit of the suppressed material at his trial, these consistencies would serve to bolster the credibility of Hernandez’ testimony.

The habeas court also noted, as we did previously, that the only significant inconsistency between the testimony of Berman and that of Hernandez related to the stabbing itself. Hernandez testified that the petitioner told him that he stabbed the victim in an attempted robbery, while Berman testified that the petitioner told her that the victim had stabbed him or struck him with an object that cut his hand and wounded his shoulder, and that he then stabbed the victim in self-defense. Courts have found that improperly withheld impeachment evidence is not material where the testimony of the witness who might have been impeached is strongly corroborated by additional evidence supporting a guilty verdict. See, e.g., United States v. Risken, 788 F.2d 1361, 1375 (8th Cir.), cert. denied, 479 U.S. 923, 107 S. Ct. 329, 93 L. Ed. 2d 302 (1986) (testimony of informant sought to be impeached “was strongly corroborated by the tape recordings of his conversations with appellant”). Hernandez’ version is corroborated by and consistent with the evidence, while Berman’s is inconsistent with it.

No knife or other sharp object was found on or near the victim. The habeas court found that the petitioner never offered any credible evidence that he had sustained defensive wounds at the hands of the victim. We note that the petitioner testified at the habeas hearing that one of the wounds he suffered in the alleged altercation with the victim bled for four months after the incident. The petitioner’s attorney, however, testified that he never was shown or told of such wounds. Furthermore, the petitioner’s medical screening form, prepared by the booking officer and signed by the petitioner seven days after the incident when the petitioner was initially incarcerated, indicates that the petitioner was not “bleeding” or suffering from any “abnormalities of the skin that warranted medical attention.” In addition, at trial, the state presented forensic evidence of abrasions to the face and body of the victim. This, along with the stab wounds on the victim, was consistent with Hernandez’ testimony that the petitioner told him that the petitioner and Oliveras beat the victim before stabbing him.

Further corroboration of Hernandez’ testimony with respect to the circumstances of the stabbing is that both Berman and Hernandez testified that the petitioner told them that he waited outside the store for the victim. This fact is consistent with the version given by Hernandez in that it provides lying in wait evidence compatible with an act of attempted robbery.

Finally, the record shows that the petitioner exhibited consciousness of guilt inconsistent with a theory of self-defense. In a telephone conversation with Berman the day after the crime, the petitioner said he was not living at home but was moving around and staying in different places. The petitioner told Berman that the police would never take him alive. In addition, prior to his arrest, the petitioner called Berman and asked if he could see her one more time before he left the area.

The fact that Hernandez was compensated by Crime Stoppers for his involvement in this case should have been made known to the petitioner. Because the only part of his testimony that is inconsistent with Berman’s is substantially corroborated by other evidence, we conclude that there is not a reasonable probability that, had the information been conveyed to the petitioner, the result of his trial would have been different. Accordingly, the petitioner’s claim must fail.

II

The petitioner claims next that the habeas court improperly failed to find that he was deprived at trial of his constitutional right to confront the witnesses against him. Specifically, the petitioner argues that because he did not receive the information regarding Hernandez’ compensation, he was deprived of his right to cross-examine Hernandez adequately and that he is therefore entitled to a new trial. This claim lacks merit.

The right of an accused to confront witnesses against him is guaranteed by the sixth amendment to the United States constitution1 ** and article first, § 8, of the constitution of Connecticut. “A significant aspect of the right of confrontation is the cross-examination of adverse witnesses to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the [witnesses]. . . . Because the core value protected by the confrontation clause is the enhancement of the truth-seeking process . . . [c]ross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted.” (Citations omitted; internal quotation marks omitted.) State v. Monteeth, supra, 208 Conn. 209. The confrontation clause, however, is implicated only “when there [is] a specific statutory or court-imposed restriction at trial on the scope of questioning. . . . The right to cross-examine witnesses does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony. Normally the right to confront one’s accusers is satisfied if defense counsel receives wide latitude at trial to question witnesses.” (Citation omitted; internal quotation marks omitted.) State v. Harris, 227 Conn. 751, 764, 631 A.2d 309 (1993).

The information at issue here was not withheld pursuant to statute. Furthermore, our review of the record does not reveal any court imposed restriction on the petitioner’s questioning of Hernandez on the issue of compensation. Although the petitioner was entitled to the nondisclosed information, as discussed in part I of this opinion, the nondisclosure was not a constitutional violation. The petitioner was not deprived of his right to confront the witnesses against him.

Ill

The petitioner claims finally that the habeas court improperly failed to find that he was deprived of his constitutional right to effective assistance of counsel. We are not persuaded.

On appeal, the petitioner bases his claim on the pretrial investigation, or the alleged lack thereof, by his trial counsel. The petitioner argues that, but for certain inadequacies on the part of Yamin, the result of his trial would have been different. In support of his claim, the petitioner relies, inter alia, on the habeas testimony of his expert, Attorney William Bloss. As the petitioner recites in his brief, Bloss testified at the habeas hearing that Yamin violated the standard of care among criminal defense counsel by his “total failure to investigate” the state’s case, by deciding what defense to employ without conducting an investigation and by never seeking to interview alleged eyewitnesses to the crime. Bloss further testified that it was inconceivable that the petitioner’s counsel would make no effort to speak to Hernandez. He testified that counsel’s failure to do so resulted in the failure to discover the payment arrangement between Hernandez, Crime Stoppers and the police.

The petitioner also makes the following arguments in support of his claim. He asserts that Yamin did not hire a private detective and that his investigation consisted of a telephone call to Berman and a conversation with Oliveras’ attorney. Although counsel discovered a statement in the state’s file given by one man claiming that another man was involved in the stabbing and also that two black men were seen running from the scene, Yamin did not contact any of these individuals. Further, Yamin knew that the petitioner’s claim that he was involved in an altercation was a pivotal issue, yet he failed to file a motion in limine to limit the use of police photographs used by the state to support the claim that the petitioner was not injured in a struggle with the victim. Yamin conceded that there was a danger these photographs would be prejudicial to the petitioner.

The habeas court made the following relevant findings. At the time of the petitioner’s trial, Yamin had been in practice approximately seventeen years and had tried several criminal cases to verdict, including one felony murder case. Calculated by income, criminal defense work represented about 30 percent of his effort.

Yamin testified credibly at the habeas hearing. Noting that cooperative clients’ statements will often lead to beneficial avenues for further investigation, his first line of inquiry was with the petitioner. The petitioner was, however, uncooperative. He appeared to be distrustful of him and the criminal justice system and provided very little useful information. Yamin met several times with the petitioner prior to his trial. Counsel stated that the petitioner was perhaps the most difficult criminal defendant he had represented because of his unwillingness to speak with him and to assist in his defense.

The petitioner admitted that he had been involved in the stabbing but claimed that he had been attacked first. He neither denied nor acknowledged attempting to rob the victim. Counsel learned from Berman the details of the petitioner’s claim that the victim accosted him with a sharp object. Yamin also spoke with counsel for Oliveras and reviewed the state’s attorney’s file. With respect to certain witnesses whose statements were given to police and about whom statements were made, counsel did not attempt to contact these individuals because he concluded that their statements were inconsistent with the petitioner’s claims.

The state offered the petitioner a plea bargain consisting of a twenty-five year sentence. Against his attorney’s advice, he refused, stating that he would agree only to a sentence of six years. Yamin had no recollection of any claim by the petitioner that he had been wounded in an altercation with the victim, nor did he recall seeing any wounds on the petitioner. Furthermore, the public defender who initially represented the petitioner did not give Yamin any such information.

Yamin did not conduct an extensive investigation of Hernandez. He did, however, obtain information about Hernandez from another attorney and was aware of the names of individuals who could offer testimony about him. Yamin was unaware that Hernandez was paid for his testimony. If he were aware of that fact, he would have used it to impeach Hernandez. Counsel did request any and all exculpatory information in this case. Yamin did attempt to discredit Hernandez’ trial testimony that he was not coerced by police into making his statement by bringing out an inconsistency in Hernandez’ testimony at the probable cause hearing, namely that police had told him that if he did not cooperate he might be implicated in the crime.

The standard to be applied in determining whether an attorney has represented a criminal defendant effectively is set forth in Strickland v. Washington, supra, 466 U.S. 668. “In order for a criminal defendant to prevail on a constitutional claim of ineffective assistance of counsel, he must establish both (1) deficient performance, and (2) actual prejudice. . . . Thus, he must establish not only that his counsel’s performance was deficient, but that as a result thereof he suffered actual prejudice, namely, that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. ... In this context, a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different, does not require the petitioner to show that counsel’s deficient conduct more likely than not altered the outcome in the case. . . . Rather, it merely requires the petitioner to establish a probability sufficient to undermine confidence in the outcome.” (Citations omitted; internal quotation marks omitted.) Bunkley v. Commissioner of Correction, 222 Conn. 444, 445-46, 610 A.2d 598 (1992) (en banc).

“An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Strickland v. Washington, supra, 466 U.S. 691. “Even if a defendant shows that particular errors of counsel were unreasonable, therefore, the defendant must show that they actually had an adverse effect on the defense. It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.” Id., 693. Rather, a defendant must show that there is a reasonable probability that the errors affected the outcome of the proceeding. Id., 694. “[A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id., 689.

We conclude first that Yamin’s failure to contact the individual who made a statement to the police and the individual who was mentioned in the statement did not constitute deficient performance. In light of the petitioner’s admission of stabbing the victim, counsel did not need to investigate statements that someone else was involved in the stabbing as they were inconsistent with the petitioner’s own version of events.

Yamin’s conduct relative to the issue of the wounds allegedly suffered by the petitioner at the hands of the victim did not constitute deficient performance. The petitioner did not tell counsel directly that he had suffered any such wounds. Also, no mention of any wounds was made in the police investigative reports nor was any information to that effect relayed to Yamin by the public defender who initially represented the petitioner. Furthermore, the petitioner’s medical screening form, prepared by the booking officer and signed by the petitioner, indicates that the petitioner was not “bleeding” or suffering from any “abnormalities of the skin that warranted medical attention.” As the habeas court concluded, “There is no factual basis to support the petitioner’s claim that he sustained any wounds in the ‘altercation’ with the victim.”

We also note that the general statement by the petitioner’s expert that Yamin totally failed to investigate the state’s case is at odds with the record. Yamin spoke with the petitioner, his girlfriend and counsel for Oli-veras as well as the public defender who initially handled the petitioner’s case. He also reviewed the state’s files, including the investigative reports, and made the proper discovery requests. Furthermore, counsel made an informed choice on whether to investigate certain individuals mentioned in the file.

We address finally the alleged deficient performance of Yamin with respect to his pretrial investigation of Hernandez. For purposes of this discussion, we assume, without deciding, that counsel’s conduct was deficient in this regard, but conclude that the petitioner has failed to establish that the conduct created a reasonable probability that the outcome of his trial would have been different. The petitioner argues that, had counsel adequately investigated Hernandez, he would have discovered that Hernandez was compensated and that this information would have altered the outcome of his trial. Because the standard for proving Strickland’s second prong of an ineffective assistance of counsel claim is equivalent to the st andard of materiality encompassed in a Brady claim; see Kyles v. Whitely, 514 U.S. 419, 434, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995); referring to our discussion in part I of this opinion, we conclude that the petitioner has failed to establish actual prejudice.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner also raised a confrontation clause claim that the Supreme Court did not consider. Quintana v. Warden, supra, 220 Conn. 2 n.1.

       In Connecticut, state’s attorneys are obligated by statute to disclose such information regardless of whether a defendant makes a request. General Statutes § 54-86c.

       The habeas court admitted as exhibits the entire transcript of the petitioner’s criminal trial.

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

       Article first, § 8, of the constitution of Connecticut provides in relevant part: “In all criminal prosecutions, the accused shall have a right ... to be confronted by the witnesses against him . . . .”

       The petitioner is not black.

       The petitioner was eventually sentenced to fifty years.

       Yamin called one of the individuals at trial, but he declined to testify on the basis of his right not to incriminate himself.