author: Callahan, J.

text:
    State of Connecticut v. Tobias Anderson
    (13302)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.
    Argued March 29
    decision released July 4, 1989

      Martin Zeldis, assistant public defender, for the appellant (defendant).

      Mary H. Lesser, deputy assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Dennis O’Connor, assistant state’s attorney, for the appellee (state).
   Callahan, J.

The defendant was charged in a substitute information with two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B), one count of attempted sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a), two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a), and one count of attempted robbery in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-134 (a) (3). He was tried by a jury and convicted of one count of kidnapping in the first degree, one count of attempted robbery in the first degree and one count of attempted sexual assault in the first degree. The trial court sentenced the defendant to concurrent terms of fifteen years imprisonment on the kidnapping conviction and five years imprisonment on the attempted robbery conviction. The court also sentenced the defendant to a term of ten years imprisonment on the attempted sexual assault conviction to run consecutively with the kidnapping sentence for a total effective sentence of twenty-five years.

The defendant has appealed his convictions claiming that: (1) his prosecution by the state on two counts of kidnapping in the first degree, and his prosecution on attempted sexual assault in the first degree and sexual assault in the first degree violated his right under the fifth amendment to the United States constitution not to be twice placed in jeopardy for the same offense; (2) the trial court’s instructions on the kidnapping charges both confused and misled the jury; (3) the trial court erred in giving a Secondino charge in its instructions to the jury; (4) there was insufficient evidence to convict him of attempted robbery in the first degree; and (5) he was denied his constitutional right to be sentenced fairly and impartially. We find no error.

The defendant first claims a dual violation of his constitutional right against double jeopardy by his prosecution on two counts of kidnapping in the first degree, and his prosecution for attempted sexual assault in the first degree and sexual assault in the first degree. Specifically, the defendant maintains that he was improperly prosecuted on two counts of kidnapping as the facts alleged indicate that there was only one continuing offense. Furthermore, the defendant claims that he was prosecuted for attempted sexual assault and sexual assault, which counts should have been merged into one count of sexual assault. The defendant argues that, because he was prosecuted on multiple counts of the above-mentioned crimes, his right against double jeopardy has been violated. The defendant concedes that this issue was not raised at trial, but maintains that we should, nevertheless, review it under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). We conclude, however,, that the double jeopardy clause is not implicated and that review under State v. Evans, supra, is, therefore, not warranted.

The double jeopardy clause of the fifth amendment to the United States constitution provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb. . . . ” “The prohibition of double jeopardy prevents not only multiple trials, but also multiple punishments for the same offense in a single trial. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).” (Emphasis added.) State v. Devino, 195 Conn. 70, 73, 485 A.2d 1302 (1985); State v. John, 210 Conn. 652, 693, 557 A.2d 93 (1989); P. Robinson, Criminal Law Defenses (1984) § 68 (a). In the context of a single trial, “the threshold issue [in determining whether the double jeopardy clause is implicated is] whether multiple punishments have been imposed.” State v. John, supra, 694. “The prosecution and submission to a jury of multiple charges arising from the same offense is not itself unconstitutional. See Ohio v. Johnson, 467 U.S. 493, 500, 104 S. Ct. 2536, 81 L. Ed. 2d 425 (1984).” State v. Devino, supra, 73-74 n.4.

In the instant case, multiple punishments for the various counts brought by the state were not imposed against the defendant. The defendant was convicted and sentenced on only one of the two counts of kidnapping in the first degree. Moreover, he was found guilty of attempted sexual assault but acquitted on the sexual assault counts. Because multiple punishments were not imposed, the defendant’s double jeopardy rights have not been offended and, therefore, we decline to review the defendant’s claims under State v. Evans, supra.

The defendant next claims that he is entitled to a new trial because the trial court’s instructions to the jury on the essential elements of kidnapping in the first degree violated his due process rights under the fourteenth amendment to the United States constitution and article first, § 8 of the Connecticut constitution. The defendant maintains that the court’s instructions were inadequate because the jury was not properly instructed on the “intent ... to accomplish or advance the commission of a felony” element of kidnapping in the first degree required under § 53a-92 (a) (2) (B). We disagree.

Initially, we note that the defendant did not except to any part of the court’s instruction on this charge at trial, but raises this issue for the first time on appeal. A claim not raised at trial is reviewable only if the record adequately supports a claim that the defendant has clearly been deprived of a fundamental constitutional right and a fair trial. State v. Evans, supra, 70. We will review the defendant’s claim in the instant case because “the failure to instruct the jury adequately on each essential element of the crime charged may have resulted in a violation of the defendant’s due process rights implicating the fairness of his trial. State v. Fleming, [198 Conn. 255, 269-70, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986)]; State v. Sinclair, 197 Conn. 574, 580, 500 A.2d 539 (1985).” State v. Foster, 202 Conn. 520, 537, 522 A.2d 277 (1987).

“ Tt is axiomatic that the state is required to prove all the essential elements of the crimes charged beyond a reasonable doubt in order to obtain a conviction. In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).’ ” Id., 537-38. “It cannot be considered harmless error for a jury ‘to find an accused guilty without even knowing what are the essential elements of the crimes charged.’ State v. Griffin, [175 Conn. 155, 162-63, 397 A.2d 89 (1978)]; see United States v. Howard, 506 F.2d 1131, 1134 (2d Cir. 1974); State v. Kurvin, 186 Conn. 555, 573, 442 A.2d 1327 (1982) (Speziale, C. J., dissenting). Put another way, the failure to instruct a jury on an essential element of a crime charged is error because it deprives the defendant of the right ‘to have the jury told what crimes he is actually being tried for and what the essential elements of those crimes are.’ United States v. Natale, 526 F.2d 1160, 1167 (2d Cir. 1975), cert. denied, 425 U.S. 950, 96 S. Ct. 1724, 48 L. Ed. 2d 193 (1976), citing United States v. Fields, 466 F.2d 119, 121 (2d Cir. 1972). Of course, any such error is not cured just because an appellate court is satisfied after the fact of conviction that sufficient evidence was before the jury so that it would or could have found that the state proved the missing element had the jury been properly instructed. After all, ‘when [the defendant] exercised his constitutional right to a jury, he put the [state] to the burden of proving the elements of the crimes charged to a jury’s satisfaction, not to ours or [the trial judge’s].’ United States v. Howard, supra, 1134.” State v. Gabriel, 192 Conn. 405, 414, 473 A.2d 300 (1984).

“ ‘It is well established, however, that the individual instructions are not to be judged in artificial isolation from the overall charge. State v. Dolphin, 195 Conn. 444, 451, 488 A.2d 812 [cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84] (1985); State v. Reid, 193 Conn. 646, 660, 480 A.2d 463 (1984); State v. Hines, 187 Conn. 199, 209, 445 A.2d 314 (1982). The whole charge must be considered from the standpoint of its effect on the jury in guiding them to the proper verdict; State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982); State v. Williams, 182 Conn. 262, 269, 438 A.2d 80 (1980); State v. Piskorski, 177 Conn. 677, 746-47, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979); and not critically dissected in a microscopic search for possible error. State v. Harris, 172 Conn. 223, 226-27, 374 A.2d 203 (1977).’ State v. Reddick, 197 Conn. 115, 131-32, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986).” State v. Foster, supra, 538. “Thus, an error in the charges requires reversal only if, in the context of the whole instruction, there is a reasonable possibility that the jury was misled in reaching its verdict. State v. Fleming, supra, 269; State v. Sinclair, supra, 581; State v. Kurvin, [supra, 558].” Id.

In the instant case, the defendant was charged with two counts of kidnapping in the first degree under § 53a-92 (a) (2) (B), which states in pertinent part that “[a] person is guilty of kidnapping in the first degree when he abducts another person and when ... (2) he restrains that person abducted with the intent to . . . (B) accomplish or advance a felony.” According to the defendant, the trial court did not adequately explain to the jury that he was charged with two counts of kidnapping and that for the jury to find him guilty of either of the two counts, or both, it was necessary for it also to find that the state had proved that he intended to accomplish or advance each of the charged underlying felonies. Before we address the merits of this argument, we note the following facts.

In the first count of kidnapping, the state alleged that the defendant had approached the victim on Prospect Street in Bloomfield, held her at knifepoint, and forcibly directed her to a nearby schoolyard. Once in the schoolyard, the defendant attempted to have sexual intercourse with the victim, thereby making attempted sexual assault the underlying felony alleged in the first kidnapping count. In the second count of kidnapping, that state alleged that the defendant, still holding his knife, had taken the victim from the schoolyard to his home. In his bedroom, he allegedly had sexual intercourse with the victim, thereby making sexual assault the underlying felony alleged in the second kidnapping count.

In its instructions to the jury pertaining to the two kidnapping charges, the trial court read § 53a-92 (a) (2) (B) to the jury and then stated that “the State must prove the following elements beyond a reasonable doubt in this particular charge [of kidnapping]. . . .And I will define what abduction means. That the defendant unlawfully restrained the person he abducted. And I’ll define what restrained means. And he did so—[that is] he restrained that person with the intent of accomplishing or advancing the commission of a felony, in this case the sexual assault.” Following a lengthy definition of the terms abduct and restrain, the court stated “[a]nd if you find that he intended to commit a sexual assault upon the [victim]—it’s only that he intended to commit the sexual assault—that . . . would be sufficient. Sexual assault as charged in this particular case, sexual assault in the first degree, is a felony. If you found him guilty of that that . . . would be sufficient to establish the kidnapping in this particular case.” The court went on to state that “[h]e either has to sexually assault her or do it with the—in an attempt or in an— so that he’s furthering his objective, really, to accomplish the commission of the felony. And that’s—it’s a step in furthering or advancing his position to commit the felony that he intends.” After defining “intent,” the court stated that “there are two counts of kidnapping in the first degree. And this instruction will apply to both counts. Now, the two counts of kidnapping in the first degree, as I understand then, would be the first time that the defendant and the victim met. Now, if you believe the victim she was then moved, under the threat of a knife, from Prospect Street to Vincent School. And at the Vincent School some time subsequent to their arrival there it was the victim’s allegation that an attempt at sexual assault occurred . . . [tjhat’s the first kidnapping. That when the sexual assault was attempted that completed that particular kidnapping. The second kidnapping now would be the movement from the Vincent School to the defendant’s bedroom, as stated by the victim. So those are the two counts of kidnapping in the first degree. And if you find that one occurred and one didn’t, you will find him guilty on one count and not guilty on the other count. If you find that they both occurred, you’d find that he was guilty on both counts. If you find that neither one occurred, you’d find him not guilty on both counts. But that takes care of the two kidnapping counts.” In addition to the charge on kidnapping, the court gave a detailed definition of the elements of sexual assault and attempted sexual assault.

Viewing the instructions as a whole, we conclude that the jury was able to understand that two kidnapping charges were involved, that it was necessary for them to find each of the elements of kidnapping stated by the court as to both charges, and that attempted sexual assault was the underlying felony in the first count of kidnapping and sexual assault was the underlying felony in the second count of kidnapping. Because the court instructed the jury as to what must be proved to sustain a conviction, including the “intent ... to accomplish or advance a felony” element necessary under § 53a-92 (a) (2) (B), the defendant was not denied his due process rights. “[TJhe fact that the [elements were] neither labelled nor numbered does not render the recitation misleading.” State v. Kurvin, supra, 565. The jury, in fact, acquitted the defendant of the second kidnapping count that alleged a completed sexual assault as the underlying felony. The court’s instructions on that count were, if anything, less clear than on the first count of kidnapping. The jury, however, apparently had no difficulty in understanding and applying those instructions. We find no error in the trial court’s jury instructions on the kidnapping counts.

As his third contention, the defendant claims that the trial court committed reversible error when it gave the jury a missing witness instruction, otherwise known as a “Secondino charge.” In Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960), we restated the rule that “ ‘[t]he failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause.’ [Ezzo v. Geremiah, 107 Conn. 670, 677, 142 A. 461 (1928)].” Id., 675. “There are two requirements for the operation of the rule: The witness must be available, and he must be a witness whom the party would naturally produce.” Id.; State v. Shashaty, 205 Conn. 39, 43, 529 A.2d 1308 (1987), cert. denied, 484 U.S. 1027, 108 S. Ct. 753, 98 L. Ed 766 (1988). “When ‘counsel for either the state or the defendant intends to argue to the jury that an unfavorable inference be drawn from the absence of a witness at trial, an advance ruling from the court should be sought and obtained.’ ” State v. Gonzalez, 197 Conn. 677, 680, 500 A.2d 1330 (1985); State v. Daniels, 180 Conn. 101, 113, 429 A.2d 813 (1980). In order for such a rule to have any efficacy, objections by a party opposing such an instruction should be made at the time the advance ruling is sought. A party who fails to make a timely objection to the giving of a Secondino charge will be deemed to have waived the issue for appeal. The giving of a Secondino charge is purely an evidentiary issue and is not a matter of constitutional dimensions. See State v. Shashaty, supra, 44; State v. Annunziato, 169 Conn. 517, 538, 363 A.2d 1011 (1975); see also State v. Brown, 187 Conn. 602, 612, 447 A.2d 734 (1982) (other than a failure to instruct on an element of a crime, appellate court will not review error claimed in jury instructions where no objection made and no plain error involved). Appellate review under State v. Evans, supra, is, therefore, not available.

In the present case, the defendant testified at trial that he knew the victim prior to the incident in question. The defendant stated that he did not know the victim’s name at the time, but that he recalled having seen her at two large parties. He further testified that he went to at least one of these parties with D and J. Although the defendant testified that he knew the address of D and J and that they were available to come to court, neither D nor J testified at trial. In its request to charge, the state asked that the court give a Secondino charge. A copy of the state’s request was given to the defendant and, prior to closing arguments, the state asked the court for a ruling on the requested Secondino charge because it intended to argue that issue in its summation. The court stated that it had “no problem” with giving a Secondino charge. At this point, the defendant did not object. Thereafter, in his closing argument to the jury, the defendant argued that an inference could be drawn that the victim had consented to sexual relations with him because he knew her prior to the incident in question. Following these remarks, the state made a rebuttal argument to the jury in which it pointed out that the defendant’s failure to produce either D or J undermined his claim that he had known the victim prior to the night in question. The defendant objected to the state’s comment, claiming that it had no knowledge of whether D or J were “available.” The court overruled the defendant’s objection, stating that it had already ruled in favor of giving a Secondino charge. The defendant took an exception to the court’s ruling. The court thereafter gave a Secondino charge in its instruction to the jury. The defendant took an exception to the court’s charge, again arguing that the state had no knowledge of whether D and J were available to testify.

As the state correctly argues, the defendant’s claim was not properly preserved for appeal because he did not make a timely objection to the Secondino charge at trial. Although the defendant objected to the court’s instructions during the state’s final argument and after the Secondino charge was given to the jury, objection to such an instruction should have been made by the defendant when he learned that the state had requested it and prior to its being brought up in arguments. See Keating v. Glass Container Corporation, 197 Conn. 428, 433, 497 A.2d 763 (1985); see also 1 J. Wigmore, Evidence (3d Ed.) § 18 (objections “must be made as soon as the applicability of it is known”). The state followed the proper procedure in requesting a Secondino charge and it was incumbent on the defendant to interpose a proper objection before the issue of the missing witnesses was brought to the attention of the jury. Further, even if we were to reach the merits on this question, we are not persuaded that the trial court committed plain error in giving a Secondino charge. Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 192, 510 A.2d 972 (1986). Review of the defendant’s claim of error would be limited to the issue of whether D or J were “available” to testify, as that was the sole legal ground upon which the defendant eventually based his objection. State v. Rothenberg, 195 Conn. 253, 262, 487 A.2d 545 (1985). Because the defendant testified that he knew the address of D and J and that they would probably be able to testify, we conclude that there was a sufficient showing that D and J were indeed “within the power of [the defendant] to produce”; Shelnitz v. Greenberg, 200 Conn. 58, 75, 509 A.2d 1023 (1986); and, therefore, “available” to testify. Accordingly, the trial court did not err when it delivered a Secondino charge to the jury.

In his fourth claim of error, the defendant maintains that there was insufficient evidence to support a conviction for attempted robbery in the first degree. “Appellate analysis of a claim of insufficiency of the evidence requires us to undertake a twofold task: We must first review the evidence construing it in the light most favorable to sustaining the trial court’s verdict. State v. Williams, 205 Conn. 456, 468, 534 A.2d 230 (1987); State v. Vincent, 194 Conn. 198, 206, 479 A.2d 237 (1984); State v. D’Antuono, 186 Conn. 414, 421, 441 A.2d 846 (1982); State v. Perez, 182 Conn. 603, 606, 438 A.2d 1149 (1981). ‘ “ ‘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.’ ” ’ State v. Plourde, 208 Conn. 455, 458, 545 A.2d 1071 (1988), quoting State v. Rollinson, 203 Conn. 641, 665-66, 526 A.2d 1283 (1987), and cases cited therein.” State v. Avis, 209 Conn. 290, 309, 551 A.2d 26 (1988), cert. denied, U.S. , 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989).

In the present case, the defendant was charged with attempted robbery in the first degree. That offense occurs when one commits a robbery armed with a dangerous instrument. General Statutes § 53a-134. Robbery is defined in General Statutes § 53a-133, which states that “[a] person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of property or to the retention thereof immediately after the taking . . . . ” A person commits a larceny “when, with the intent to deprive another of property ... he wrongfully takes, obtains or withholds such property from an owner.” General Statutes § 53a-119. The defendant claims that the state did not present sufficient evidence of his intent to deprive the victim of her property because moments after he relieved her of her property he returned it to her. We do not agree.

In discussing the “intent to deprive another of property,” an element required for a conviction of robbery in the first degree, we have stated that the accused must intend both to take the property of another and to retain it. State v. Kurvin, 186 Conn. 555, 588, 442 A.2d 1327 (1982). “The requisite intent for retention is permanency.” Id., 568; see General Statutes § 53a-118 (a) (3) (“deprive” means “withhold [property] or cause it to be withheld from [the victim] permanently . . .”). Intent, however, can be inferred both from the defendant’s conduct and his statements at the time of the crime; State v. Ghere, 201 Conn. 289, 296, 513 A.2d 1226 (1986); State v. Morrill, 193 Conn. 602, 609, 478 A.2d 994 (1984); and “whether such an inference should be drawn is properly a question for the jury to decide. State v. Sober, [166 Conn. 81, 93, 347 A.2d 61 (1974)].” State v. Morrill, supra, 609. To be convicted of robbery in the first degree, therefore, it is not necessary for the jury to find that the defendant actually kept the property in question, but rather, that at the moment he took the property he intended to retain it permanently. See State v. Coston, 182 Conn. 430, 436, 438 A.2d 701 (1980) (evidence sufficed to sustain a conviction of larceny in the fourth degree where the defendant took a pair of shoes and thereafter returned them). Moreover, a postoffense change of heart is not a defense to a crime. W. LaFave & A. Scott, Criminal Law (1972) § 88, p. 639. Reviewing the evidence in the present case in the light most favorable to sustaining the verdict, we conclude that the jury could reasonably have found that when the defendant took money from the victim, he intended to retain it permanently. The evidence being sufficient, the jury’s verdict must stand.

The defendant’s final claim is that he was denied his constitutional right to due process when the trial court considered allegedly improper and off-the-record information when imposing his sentence. This argument initially focuses on remarks made by the trial court during the defendant’s sentencing hearing when the court remarked that the defendant had shown no remorse for what had transpired on the night in question. The defendant maintains that this statement of the court was improper. We do not agree.

In similar cases discussing the propriety of remarks made by a sentencing court, we have stated that “ ‘if a sentence is within statutory limits it is not generally subject to modification by a reviewing court. United States v. Bernard, 757 F.2d 1439, 1444 (4th Cir. 1985); State v. Nardini, 187 Conn. 109, 119, 445 A.2d 304 (1982). “A sentencing judge has very broad discretion in imposing any sentence within statutory limits . . . United States v.Sweig, 454 F.2d 181, 183-84 (2d Cir. 1972).’ State v. Huey, 199 Conn. 121, 126, 505 A.2d 1242 (1986). The court may “appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information [it] may consider or the source from which it may come.’ United States v. Tucker, 404 U.S. 443, 446, 92 S. Ct. 589, 30 L. Ed. 2d 592 (1972). Due process requires, however, that information be considered only if it has some minimal indicium of reliability. United States v. Baylin, 696 F.2d 1030, 1040 (3d Cir. 1982); State v. Huey, supra, 127; see also State v. Thompson, 197 Conn. 67, 77, 495 A.2d 1054 (1985).” State v. Collette, 199 Conn. 308, 320, 507 A.2d 99 (1986). Among the factors that may be considered by a court at a sentencing hearing are the defendant’s demeanor and his lack of veracity and remorse as observed by the court during the course of the trial on the merits. See, e.g., United States v. Grayson, 438 U.S. 41, 47-48, 50-52, 98 S. Ct. 2610, 57 L. Ed. 2d 582 (1978); United States v. Rosenberg, 806 F.2d 1169 (3d Cir. 1986), cert. denied, 481 U.S. 1070, 107 S. Ct. 2465, 95 L. Ed. 2d 873 (1987); United States v. Roland, 748 F.2d 1321, 1327 (2d Cir. 1984); McClain v. United States, 676 F.2d 915, 919 (2d Cir.), cert. denied, 459 U.S. 879, 103 S. Ct. 174, 74 L. Ed. 2d 143 (1982); State v. Huey, supra. The initial remarks complained of by the defendant were simply comments on the court’s observations of the defendant’s behavior during the course of the trial and were not improper.

The defendant argues further that his sentence was based on unreliable information. In particular, the defendant challenges a comment that was made by the court at his sentencing hearing in which the court stated that if the defendant was not incarcerated it was likely that he would commit other violent crimes in the future, including murder. In addition, the defendant contests a remark made by the court in which it stated that because it was familiar with some of the people and places mentioned by the defendant in his testimony and statements, it knew that he had lied during the trial.

In addressing the defendant’s claim, we note that “[a] court should refrain from comments that find no basis in the record. Nonetheless, the mere reference to information outside of the record does not require a sentence to be set aside unless the defendant shows: (1) that the information was materially false or unreliable; and (2) that the trial court substantially relied on the information in determining the sentence. United States v. Ibarra, 737 F.2d 825, 827 (9th Cir. 1984); United States v. Lemon, 723 F.2d 922, 933 (D.C. Cir. 1983); United States v. Powell, 487 F.2d 325, 328 (4th Cir. 1973).” State v. Collette, supra, 320-21.

In the instant case, the defendant has not established that the court’s remarks were materially false or unreliable. The court’s comment regarding the likelihood of the defendant committing a murder in the future was made in the context of a general discussion concerning the defendant’s propensity to commit violent crimes. Such a comment was not unfounded as all of the crimes of which the defendant had been convicted were violent in nature. Moreover, the court’s statement that it knew that the defendant had lied during the trial was based on the court’s knowledge and observation. The trial court is not an automaton that is required to close its eyes to what has transpired at trial. The trial court, like the jury, may assess a witness’ credibility and, if relevant, may comment on it. See, e.g., United States v. Grayson, supra, 50-52; United States v. Matthews, 773 F.2d 48, 52 (3d Cir. 1985); United States v. Roland, supra, 1327; United States v. Martinez-Navarro, 604 F.2d 1184 (9th Cir. 1979), cert. denied sub nom. Enriquez-Sanchez v. United States, 444 U.S. 1084, 100 S. Ct. 1041, 62 L. Ed. 2d 769 (1980). Furthermore, the defendant had an opportunity to speak at the sentencing hearing where he could have disputed the court’s observations; however, he declined to do so. The absence of a denial itself provides an important indicium of reliability. United States v. Bass, 535 F.2d 110, 121 (D.C. Cir. 1976).

Not only has the defendant proffered no evidence challenging the reliability of the court’s statements, but, when the record is read as a whole, it is clear that the court did not substantially rely on any one piece of information when it determined the defendant’s sentence. The sentence imposed by the court was based on its review of the defendant’s presentence investigation report, his poor demeanor and lack of veracity at trial, the fact that he recently had been convicted of similar violent crimes in an unrelated case and his general lack of remorse for the crimes of which he had been convicted. These are legitimate sentencing considerations.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-92. kidnapping in the first degree. (a) A person is guilty of kidnapping in the first degree when he abducts another person and when: (1) His intent is to compel a third person to pay or deliver money or property as ransom, or to engage in other particular conduct or to refrain from engaging in particular conduct; or (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually; or (B) accomplish or advance the commission of a felony; or (C) terrorize him or a third person; or (D) interfere with the performance of a government function.
      “(b) Kidnapping in the first degree is punishable as a class A felony.”

       General Statutes § 53a-49 (a) (2) provides: “criminal attempt: sufficiency of conduct; renunciation as defense, (a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”
      “[General Statutes] Sec. 53a-70. sexual assault in the first degree: class b felony: one year not suspendable. (a) A person is guilty of sexual assault in the first degree when such person 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.
      “(b) Sexual assault in the first degree is a class B felony for which one year of the sentence imposed may not be suspended or reduced by the court.”

       General Statutes § 53a-134 (a) (3) provides: “robbery in the first degree: class b felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... (3) uses or threatens the use of a dangerous instrument.”

       Constitutional guarantees against double jeopardy were made applicable to the states through the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969).

       The defendant points to the statements directly preceding this statement on the underlying felony involved, where the court started to instruct the jury as to physical injury, incorrectly assuming that the charge was kidnapping done for the purpose of inflicting physical injury under General Statutes § 53a-92 (a) (2) (A). The court quickly realized its mistake and told the jury to “forget” what it said “about physical injury. Because the charge is that she was kidnapped with the intention of committing a felony.” We do not believe that the court’s initial error unduly misled or confused the jury.

       In arguing to the jury that the victim consented to sexual intercourse with the defendant, his attorney stated:
      “Mr. Hunt: Toby indicate[d] to you that he had seen this person by way of parties, not being with her but he had met her. He had seen her. He also indicated that he had not only seen her sister, he talked to her. She was a member of his class at Bloomfield High School. ...”

       The defendant concedes that the state presented sufficient evidence on the other elements required for a conviction under General Statutes § 53a-134 (a) (3).
      At trial there was conflicting evidence as to when the defendant actually returned the victim’s property to her. Both the victim and the defendant did testify, however, that the property was ultimately returned.

       The court stated: “I’ve had a lot of opportunity to observe Mr. Anderson in this courtroom, his demeanor, his actions and if there’s one thing that strikes me that’s been especially impressed upon me is his complete lack of concern, his complete lack of remorse for what transpired in this particular incident.”

       In the present case, the sentence imposed by the court was well within the statutory limits. In fact, the defendant did not receive the maximum sentence for any of the crimes of which he was convicted. The maximum sentence for kidnapping in the first degree, a class A felony, is twenty-five years. The defendant received fifteen years. The maximum sentence for-attempted sexual assault in the first degree, a class B felony, is twenty years. The defendant received ten years. The maximum sentence for attempted robbery in the first degree, a class B felony, is twenty years. The defendant received five years concurrent with the other sentences. See General Statutes § 53a-S5a.

       The two comments complained of by the defendant were stated by the court as follows:
      “One of the problems we have with people who engage in sexual assault, especially at knifepoint, or even an attempted sexual assault, is that at some point, they’re going to become enraged because rape is not a sexual act in and of itself. It’s become known that rape is generally an act of violence. It’s an assaultive, aggressive act of violence against the person it’s directed to and that this man was only expressing whatever it was that he wanted his aggressiveness—and he did it at knifepoint—and at some point in time, that aggressiveness is going to become an act of murder, it he’s not stopped.
      “Fortunately, he was caught, after two very serious incidents, within a period of days of each other.
      “You know, unfortunately, I come from Bloomfield. So, a lot of the things he said, I knew were not true. The allegations he made against the victim’s father, the allegations he supposedly made against one of the police officers—though not on the record, in side-bar conferences—just indicated to me how low this man can become in trying to justify his actions and activities. A man like this has no place in society because he’s going to go out at some point in society, at some point during the course of his life, and kill somebody and for no good reason. He had absolutely no reason for any of these activities.
      “No matter whatever happens with him, at some point in time, if he’s ever released to the public, he’s going to kill somebody. My wife, my daughter-in-law, my granddaughter, I don’t know who. But I think society has a right to be concerned about this man being on the streets again.”


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    State of Connecticut v. Michael D’Ambrosio
    (13507)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.

      Argued May 9
    decision released July 4, 1989

      Susan M. Hankins, assistant public defender, for the appellant (defendant).

      CarolynK. Longstreth, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearing-ton, state’s attorney, and Patrick Clifford, assistant state’s attorney, for the appellee (state).
   Peters, C. J.

This appeal requires an examination of the scope of a defendant’s obligation to make a preliminary showing of the materiality of a witness’ psychiatric records for the purpose of cross-examination. A jury convicted the defendant of burglary in the third degree, conspiracy to commit burglary in the third degree, attempted assault in the first degree and larceny in the sixth degree. General Statutes §§ 53a-103 (a), 53a-48 (a), 53a-49 (a), 53a-59 (a) (1), 53a-125b. The defendant appealed to the Appellate Court from the trial court’s judgment, raising four claims of error. The Appellate Court found no error in the trial court’s judgment; State v. D’Ambrosio, 14 Conn. App. 309, 541 A.2d 880 (1988); and we granted certification limited to the following issue: “Did the Appellate Court err in upholding the trial court’s denial of the defendant’s request for an examination of the psychiatric records of a key state witness, on the basis that there had been no preliminary showing that denial was likely to impair his right to confrontation?” State v. D’Ambrosio, 209 Conn. 802, 548 A.2d 439 (1988). We now reverse.

The jury could reasonably have found the following facts. On October 29,1985, the complainant, a seventy-nine year old Guilford woman, discovered that the rear door to her house had been smashed. One of the complainant’s neighbors told police that she had seen a heavy set white male in dark clothing, later identified as Albert Knous, run down the driveway and enter a dark colored car with a white top. Approximately forty-five minutes later, a police officer spotted the defendant and Knous in a car matching the neighbor’s description. State v. D’Ambrosio, supra, 14 Conn. App. 310-11. After further investigation linking both the defendant and Knous to the incident, the police charged the defendant with burglary, conspiracy to commit burglary in the third degree, attempted assault in the first degree, carrying a weapon in a motor vehicle and larceny in the sixth degree.

At the defendant’s trial, Knous testified for the state that he was picking apples on the day of the incident when the defendant approached him to tell him he had broken into the complainant’s home, that a companion had cut the brake lines to the car stored in the garage and that the defendant had stolen a metal tool box. Knous also stated that the defendant reported having seen a television set in the house, which he wanted Knous to help him steal so that they could sell it and divide the proceeds. Knous testified that the pair then went to the house and he entered through the rear door, which he claimed had been smashed previously. He then searched the house for valuables, looked in the medicine cabinet for drugs and left without taking anything when he heard a car in the driveway. Id., 312.

Prior to cross-examination and outside the jury’s presence, defense counsel questioned Knous about his treatment for alcoholism at Connecticut Valley Hospital. Knous stated that, as a condition of his probation stemming from previous charges, he had been admitted to a twenty-eight day alcohol program. He admitted he had been drinking heavily for two years prior to entering the alcohol program and had occasionally used other drugs. He also admitted he had been drinking on the day of the incident. Defense counsel inquired whether he had been drinking excessively that day, to which Knous answered, “I had been drinking. Excessive, I don’t know.” Id., 316.

Defense counsel then asked Knous a series of questions regarding his diagnosis, the psychiatric reasons for his hospitalization and the reasons why the program directors had recommended that he enter a halfway house. The trial court sustained all of the state’s objections to these questions on the ground of the witness’ psychiatric privilege. The defendant then requested access to Knous’ psychiatric records or, alternatively, that the court inspect the records in camera to determine if they contained any impeaching material. The court denied the defendant access to the records and declined to examine them itself, concluding that counsel had failed to make a preliminary showing that the failure to inspect the records would deny the defendant his right to confrontation.

After the trial court rendered judgment on his convictions, the defendant appealed to the Appellate Court arguing that the trial court had violated his sixth amendment right to confrontation by precluding him from cross-examining the state’s key witness on facts highly probative of the witness’ credibility, capacity to perceive and ability to recall facts. The Appellate Court found no error in the trial court’s rulings, holding that the court had provided the defendant wide latitude in cross-examining Knous and that the defendant had failed to make the necessary preliminary showing that the failure to produce the records would likely impair his constitutional right to confrontation. Id., 317. This appeal ensued.

The people of this state enjoy a broad privilege in the confidentiality of their psychiatric communications and records, including those pertaining to their diagnosis, prognosis or treatment for alcohol abuse or alcoholism. See General Statutes §§ 17-155bb (b), 52-146d, 52-146e. A criminal defendant has a constitutional right to cross-examine state witnesses, however, which may include impeaching or discrediting them by attempting to reveal to the jury the witnesses’ biases, prejudices or ulterior motives, or facts bearing on the witnesses’ reliability, credibility, or sense of perception. Delaware v. Fensterer, 474 U.S. 15, 19, 106 S. Ct. 292, 88 L. Ed. 2d 15 (1985) (per curiam); Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Storlazzi, 191 Conn. 453, 457, 464 A.2d 829 (1983). Thus, in some instances, a patient’s psychiatric privilege must give way to a criminal defendant’s constitutional right to reveal to the jury facts about a witness’ mental condition that may reasonably affect that witness’ credibility. State v. Hufford, 205 Conn. 386, 401-402, 533 A.2d 866 (1987); State v. Pierson, 201 Conn. 211, 227, 514 A.2d 724 (1986); see also Davis v. Alaska, supra, 320 (defendant’s right to cross-examine for bias is paramount to state’s policy of protecting juvenile offender’s identity). The defendant’s right of cross-examination does not, however, allow him to discredit and impeach “in whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, supra, 20; Ohio v. Roberts, 448 U.S. 56, 73 n.12, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980). We have therefore directed trial courts to engage in a specific procedure designed to accommodate this inherent tension.

If, for the purposes of cross-examination, a defendant believes that certain privileged records would disclose information especially probative of a witness’ ability to comprehend, know or correctly relate the truth, he may, out of the jury’s presence, attempt to make a preliminary showing that “there is a reasonable ground to believe” that the failure to produce the records would likely impair his right to impeach the witness. State v. Pierson, supra, 225; State v. Esposito, 192 Conn. 166, 179, 471 A.2d 949 (1984). If in the trial court’s judgment the defendant successfully makes this showing, the state must then obtain the witness’ permission for the court to inspect the records in camera. A witness’ refusal to consent to such an in camera inspection entitles the defendant to have the witness’ testimony stricken. State v. Burak, 201 Conn. 517, 524, 518 A.2d 639 (1986); State v. Bruno, 197 Conn. 326, 331, 497 A.2d 758 (1985), cert. denied, 475 U.S. 1119, 106 S. Ct. 1635, 90 L. Ed. 2d 181 (1986); State v. Esposito, supra, 179-80.

Upon inspecting the records in camera, the trial court must determine whether the records are especially probative of the witness’ capacity to relate the truth or to observe, recollect and narrate relevant occurrences. State v. Esposito, supra, 176; State v. Storlazzi, supra, 459 n.4. If the court determines that the records are probative, the state must obtain the witness’ further waiver of his privilege concerning the relevant portions of the records for release to the defendant, or have the witness’ testimony stricken. If the court discovers no probative and impeaching material, the entire record of the proceeding must be sealed and preserved for possible appellate review. State v. Hufford, supra, 404; State v. Pierson, supra, 228. Once the trial court has made its inspection, the court’s determination of a defendant’s access to the witness’ records lies in the court’s sound discretion, which we will not disturb unless abused. State v. Herring, 210 Conn. 78, 109, 554 A.2d 686 (1989); State v. Kelly, 208 Conn. 365, 380, 545 A.2d 1048 (1988).

In this case, in order to induce the trial court to inspect the records in camera, the defendant had to make a threshold showing that there was a reasonable probability that the records would reveal that “at any pertinent time” Knous’ alcohol problem affected his testimonial capacity “to a sufficient degree to warrant further inquiry.” State v. Pierson, supra, 225-26; State v. Esposito, supra, 180. Upon reviewing the record, the Appellate Court agreed with the trial court that the defendant had failed to make such a showing. State v. D’Ambrosio, supra, 14 Conn. App. 317. We agree.

Defense counsel established no more than that Knous had been an alcoholic for two years prior to the incident, had undergone court ordered alcohol treatment, including group and individual therapy, had occasionally used other drugs and had consumed alcohol on the day of the incident. The court received no information regarding how Knous’ alcohol or drug use, or any other psychological disorder, might have affected his testimonial capacity sufficiently to require an inspection of his psychiatric records in camera. Thus, neither the trial court nor the Appellate Court erred in concluding that the defendant had not made the requisite showing. A history of alcohol or drug treatment does not automatically make a witness fair game for disclosure of psychiatric records to a criminal defendant. Cf. State v. Burak, supra, 524-25.

The ultimate propriety of the conclusions reached by the trial court and the Appellate Court depends, however, upon a predicate inquiry: was the defendant afforded a fair opportunity to make the preliminary showing necessary for an in camera inspection? Although the availability of such an opportunity also involves a determination that is, in the first instance, within the trial court’s discretion, we have urged trial courts to permit the defendant a certain latitude in his attempt to make such a showing. On this point, State v. Pierson, supra, offers a useful analogy. In that case the state charged the defendant with sexually assaulting the complainant, a thirteen year old boy. After the complainant himself had testified for the state, his therapist testified regarding the boy’s account of the assault. Id., 221. In cross-examining the therapist, the defendant sought to discover any mental aberrations of the complainant that might have reflected upon his credibility. Id., 226-27. To this end the defendant asked the therapist whether he had recently treated the complainant and his mother for “parent-child conflicts,” as a hospital record indicated. The defendant intended the question to elicit an answer that would help make a preliminary showing to the trial court that the therapist had further information of the complainant’s mental condition affecting his credibility. The trial court upheld the therapist’s claim that responding to a question about the treatment’s purpose would violate the psychiatrist-patient privilege. Id., 221. We found error, explaining that “[without any opportunity to ascertain whether such information exists, it would ordinarily be impossible for a defendant to lay the groundwork demanded by [our cases] as preliminary to a fair judicial determination of the availability of evidence of the mental condition of a witness significantly related to his testimonial capacity or credibility.” Id., 226-27.

Although the instant case involves privileged records rather than privileged communications, the same principle applies. By sustaining the state’s objections, on grounds of psychiatric privilege, to questions posed by defense counsel while she voir dired Knous, the court may well have effectively prohibited counsel from making the showing prerequisite to the court inspecting the records in camera. Specifically, when the court disallowed counsel from inquiring whether Knous had received a diagnosis as a result of his stay at the Connecticut Valley Hospital, whether there were psychiatric reasons for his hospitalization and why counselors thought he should enter a halfway house upon release from the alcohol program, the court may have precluded her from making an already difficult showing. “The privilege cannot be permitted to bar the court from access to such information as is necessary to decide whether the occasion is one where the witness must waive the privilege or have his testimony expurgated from the case.” Id., 227; see also State v. Whitaker, 202 Conn. 259, 272, 520 A.2d 1018 (1987).

On the present record, we cannot conclude that the court’s error, which implicates the defendant’s constitutional right to impeach and discredit state witnesses, was harmless beyond a reasonable doubt. As the defendant’s alleged accomplice, Knous was the state’s most vital witness. If his testimony had been discredited or stricken altogether, we cannot be certain that the jury would have returned the same guilty verdicts. Cf. State v. Gonzales, 186 Conn. 426, 435, 441 A.2d 852 (1982).

We conclude that this case must be remanded and the defendant given an opportunity to make a preliminary showing that the failure to produce Knous’ psychiatric records would likely impair his right to impeach the witness. To the extent that certain of the defendant’s questions relevant to making this showing infringe to some degree on Knous’ psychiatric privilege, the state must secure Knous’ limited waiver of the privilege. If,, in the trial court’s judgment, the defendant fails to make this showing, the defendant’s convictions will stand. Should the court find, however, that the defendant has made the requisite showing, the state must obtain Knous’ further waiver for the court to conduct an in camera inspection of the records. If in reviewing the records the court, in its discretion, finds no material especially probative of the witness’ capacity to relate the truth, the convictions will stand and the court must seal the records for possible further appellate review. Should the court find such probative material, however, the state must obtain Knous’ further waiver for release of the relevant portions of his records to the defendant and the court must grant the defendant a new trial. A new trial will also be required if at any juncture Knous refuses to waive his privilege. See Pennsylvania v. Ritchie, supra, 58; State v. Pierson, supra, 229; State v. Esposito, supra, 179-80.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the trial court for further proceedings consistent with this opinion.

In this opinion the other justices concurred.

       The defendant and the complainant had been involved in an auto accident the previous day and the defendant had damaged his car extensively. According to Knous, the defendant seemed upset that his insurance would not cover his damages and apparently intended the burglary as retribution.

       The transcript of defense counsel’s questioning of Knous reads, in relevant part:
      “Q. Did you get a diagnosis as a result of your stay at Connecticut Valley Hospital?

        “A. Diagnosis?
      “Q. Did they tell you what was wrong with you, if anything?
      “A. They didn’t tell me. I told—
      “Mr. Clifford: I would object because it might get into this privileged area, your Honor, whether he had seen a psychiatrist. There is a privilege involved here. Counsel can’t put on a showing by violating the psyehiatric/cli-ent privilege. The showing has to be independent of that. Asking the questions is just the same as opening up that envelope and all of us going into the records. So I would object to that.
      “The Court: Sustained.
      * ** *
      “Q. Are there any psychiatric reasons for your hospitalization, such as schizophrenia, depression, anything along those lines which you are aware of?
      “A. No.
      “Mr. Clifford: I would object. Again, it sounds like we are in a privileged area. I don’t know if we are asking him if he is apparently schizophrenic. I think we are.
      “The Court: Anyway I found the question objectionable. I am going to sustain the objection.
      * * *
      “A. They offered me an opportunity to go into a Halfway House; I turned it down.
      “Q. And why did they feel a Halfway House would be beneficial to you, if you know?
      “Mr. Clifford: I would object, your Honor.
      “The Court: Sustained.”

       The defendant raised three other claims of error to the Appellate Court which we did not certify for this appeal.

       General Statutes § 17-155bb (b) provides: “The commission shall not permit the disclosure of the identity, diagnosis, prognosis or treatment of any such patient which would constitute a violation of federal statutes concerning confidentiality of alcohol or drug patient records and any regulations pursuant thereto, or as they may be amended from time to time; and shall adopt regulations to protect the confidentiality of information obtained by it.”
      “{General Statutes] Sec. 52-146d. (Formerly Sec. 52-146a). PRIVILEGED COMMUNICATIONS BETWEEN PSYCHIATRIST AND PATIENT. DEFINITIONS. As used in sections 52-146c to 52-146Í, inclusive:
      “(1) ‘Authorized representative’ means (A) a person empowered by a patient to assert the confidentiality of communications or records which are privileged under sections 52-146c to 52-146Í, inclusive, or (B) if a patient is deceased, his personal representative or next of kin, or (C) if a patient is incompetent to assert or waive his privileges hereunder, (i) a guardian or conservator who had been or is appointed to act for the patient, or (ii) for the purpose of maintaining confidentiality until a guardian or conservator is appointed, the patient’s nearest relative;
      “(2) ‘Communications and records’ means all oral and written communications and records thereof relating to diagnosis or treatment of a patient’s mental condition between the patient and a psychiatrist, or between a member of the patient’s family and a psychiatrist, or between any of such persons and a person participating under the supervision of a psychiatrist in the accomplishment of the objectives of diagnosis and treatment, wherever made, including communications and records which occur in or are prepared at a mental health facility;
      “(3) ‘Consent’ means consent given in writing by the patient or his authorized representative;
      “(4) ‘Identifiable’ and ‘identify a patient’ refer to communications and records which contain (A) names or other descriptive data from which a person acquainted with the patient might reasonably recognize the patient as the person referred to, or (B) codes or numbers which are in general use outside of the mental health facility which prepared the communications and records;
      “(5) ‘Mental health facility’ includes any hospital, clinic, ward, psychiatrist’s office or other facility, public or private, which provides inpatient or outpatient service, in whole or in part, relating to the diagnosis or treatment of a patient’s mental condition;
      “(6) ‘Patient’ means a person who communicates with or is treated by a psychiatrist in diagnosis or treatment;
      “(7) ‘Psychiatrist’ means a person licensed to practice medicine who devotes a substantial portion of his time to the practice of psychiatry, or a person reasonably believed by the patient to be so qualified.”
      “[General Statutes] Sec. 52-146e. disclosure op communications, (a) All communications and records as defined in section 52-146d shall be con-fiential and shall be subject to the provisions of sections 52-146d to 52-146j, inclusive. Except as provided in sections 52-146Í to 52-146Í, inclusive, no person may disclose or transmit any communications and records or the substance or any part or any resume thereof which identify a patient to any person, corporation or governmental agency without the consent of the patient or his authorized representative.
      “(b) Any consent given to waive the confidentiality shall specify to what person or agency the information is to be disclosed and to what use it will be put. Each patient shall be informed that his refusal to grant consent will not jeopardize his right to obtain present or future treatment except where disclosure of the communications and records is necessary for the treatment.
      “(c) The patient or his authorized representative may withdraw any consent given under the provisions of this section at any time in a writing addressed to the person or office in which the original consent was filed. Withdrawal of consent shall not affect communications or records disclosed prior to notice of the withdraw!”
      Both parties have assumed, and therefore so do we for the purposes of this appeal, that the alcohol treatment and psychiatric privileges are coextensive and have the same exceptions. See In re Robert H., 199 Conn. 693, 709, 509 A.2d 475 (1986) (same privilege applies regarding sexual assault victim’s disclosures to rape crisis counselors); see also State v. Rollinson, 203 Conn. 641, 654, 526 A.2d 1283 (1987).

       It is of no moment in this case whether a defendant’s constitutional right to discredit witnesses by accessing their psychiatric records stems from the sixth amendment’s confrontation clause; Davis v. Alaska, 415 U.S. 308, 315-16, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); from the fourteenth amendment’s due process clause, as proposed by four justices of the United States Supreme Court; Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987); or from either the confrontation or due process clause of our state constitution. Conn. Const., art. I, § 8; see State v. Hufford, 205 Conn. 386, 401-402, 533 A.2d 866 (1987). We postpone deciding this question until we have a case in which it would make a difference or until the United States Supreme Court offers us further guidance.

       The Appellate Court stated that “[t]he defendant is required to make ‘a plausible showing that [these psychiatric records] would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses.’ United States v. Valenzuela-Bernal, 458 U.S. 858, 873, 102 S. Ct. 3440, 73 L. Ed. 2d 1193 (1982).” State v. D’Ambrosio, 14 Conn. App. 309, 317, 541 A.2d 880 (1988). The Appellate Court apparently gleaned this standard from Pennsylvania v. Ritchie, 480 U.S. 39, 58 n.15, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987), which quoted from ValenzuelaBemal after stating: “Ritchie, of course, may not require the trial court to search through the [witness’] file without first establishing a basis for his claim that it contains material evidence.” However, “absent any knowledge of the contents of [his] psychiatric records, it is impossible to determine whether they included relevant impeaching evidence that was not cumulative or was contrary to [his] testimony.” State v. Pierson, 201 Conn. 211, 226, 514 A.2d 724 (1986); State v. Bruno, 197 Conn. 326, 332, 497 A.2d 758 (1985). Thus, such a showing must, perforce, consist of a certain amount of speculation. We do not read Ritchie or Valenzuela-Bemal to require a defendant to make a greater showing than our cases have previously required.

       The state contends that we can find harmless error because when asked if there were any psychiatric reasons for his hospitalization, the witness answered “No,” before the state could object. This was only one of three erroneous rulings, however. In any case, the court made clear by its rulings that it did not intend to allow, even during voir dire, any questions that touched in any fashion upon Knous’ psychiatric privilege.
      In remanding this case, we anticipate that the trial court may well offer the defendant an opportunity to pursue this line of questioning beyond the three questions previously posed to the witness. Although placing a limit on such questioning is a matter within the trial court’s discretion, the record below may well reflect trial counsel’s decision to abort a line of questioning prematurely in order to comply with adverse rulings from the bench.