author: Shea, J.

text:
    State of Connecticut v. David Pierson
    (12504)
    Peters, C. J., Shea, Dannehy, Callahan and Stoughton, Js.

      Argued June 11
    decision released August 26, 1986

      DavidS. Golub, with whom, on the brief, was Richard Blumenthal, for the appellant (defendant).

      Harry Weller, special assistant state’s attorney, with whom were James G. Clark, deputy assistant state’s attorney, and, on the brief, Arnold Markle, state’s attorney, and John T. Walkley, deputy assistant state’s attorney, for the appellee (state).
   Shea, J.

After a jury trial, the defendant was convicted of sexual assault in the second degree in violation of General Statutes § 53a-71. In his appeal the . defendant claims error (1) in the failure of the court to instruct the jury on the element of general intent to perform the physical acts that constitute the crime, and (2) in certain evidentiary rulings concerning the patient-psychiatrist privilege created by General Statutes §§ 52-146d and 52-146e, claimed to have restricted both his cross-examination and direct examination of a psychiatric counselor-therapist who testified for the state. We conclude that additional proceedings are needed because of the failure of the trial court to conduct a voir dire of the witness to ascertain whether he had any information concerning the mental condition of the complainant, a thirteen year old boy, that would have been admissible to affect his credibility as a witness.

From the evidence at trial the jury could reasonably have found that the complainant, his mother and another woman occupied, as combined house sitters and tenants, the first floor portion of a home in Madison owned by the defendant. The defendant continued to occupy a separate upstairs bedroom on the premises, which he used only occasionally.

According to the testimony of the complainant, about 4 a.m. on November 6,1982, the defendant entered the room on the first floor where the boy was sleeping and sexually assaulted him by committing fellatio. The defendant then brought the boy upstairs to his own bedroom where he again sexually assaulted the boy in a similar manner. About 4:30 a.m. the complainant returned to his own room where he fell asleep.

When the complainant awoke about 7:30 a.m. he told his mother, who slept in a separate bedroom on the first floor, about the incident, and she called the police. The boy repeated his account of the crime to the investigating police officer. Later that morning he was taken to a child therapist who, according to a statement in a hospital record, had begun to counsel him and his mother about one month before the incident in relation to “parent-child conflicts.” After telling his therapist about the sexual assault, the complainant was taken to a hospital for an examination. He again related his account of the crime, on this occasion to an emergency room physician and to a hospital social worker. At the trial the complainant’s mother, the investigating police officer, the emergency room doctor, the hospital social worker and a schoolmate friend, all testified in varying detail about what the complainant had told them about the sexual assault incident.

I

The defendant filed no request to charge on the criminal intent he claims to be required as an element of the offense of sexual assault in the second degree, nor did he except to the charge as given. Realizing that review of his claim would ordinarily be precluded by failure to raise the issue in the trial court; Practice Book §§ 854, 3063; the defendant invokes the exception for fundamental constitutional errors depriving a person of a fair trial that we recognized in State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). He claims that, although no specific intent is expressly required by General Statutes § 53a-71 for sexual assault in the second degree, at least a jury instruction upon the general intent to do the proscribed acts that constitute the offense was constitutionally necessary. Despite the absence of any request or exception in the trial court, this court has treated as a claim reviewable under Evans, the failure to charge upon an essential element of a crime. State v. Cobb, 199 Conn. 322, 326, 507 A.2d 457 (1986); State v. Kurvin, 186 Conn. 555, 558, 442 A.2d 1327 (1982); State v. Griffin, 175 Conn. 155, 162-63, 397 A.2d 89 (1978). The defendant claims that a general intent to do the prohibited act is an element of every crime and that a jury charge omitting any reference to general intent is fatally deficient. Such a claim qualifies for Evans review at least to determine whether any fundamental constitutional right of the defendant has been violated. State v. Hinckley, 198 Conn. 77, 86-87, 502 A.2d 388 (1985).

Section 53a-71 (a) provides that “[a] person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is (1) under fifteen years of age . . . .” The term “sexual intercourse” is defined to include “fellatio.” General Statutes § 53a-65 (2). In charging the jury the trial court declared that the statute required proof of two elements: (1) that the defendant had engaged in sexual intercourse with the victim; and (2) that the victim was under fifteen years of age at the time of the offense. This instruction corresponded precisely with our statement of the elements of the offense in State v. Arroyo, 181 Conn. 426, 430, 435 A.2d 967 (1980). We have held that sexual assault in the first degree is a general intent crime with no element of specific intent. State v. Rodgers, 198 Conn. 53, 62, 502 A.2d 360 (1985); State v. Johnson, 185 Conn. 163, 176, 440 A.2d 858 (1981), aff'd, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983). We have similarly construed the portion of General Statutes § 53-21 that proscribes “acts directly perpetrated on the person of the minor and injurious to his moral or physical well-being” not to require proof of a specific mental element. State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963); see State v. Martin, 189 Conn. 1, 12, 454 A.2d 256 (1983). Accordingly, we conclude, despite the defendant’s suggestion to the contrary, that the only intent required for a violation of § 53a-71 is a general intent to perform the acts that constitute the offense.

“To some extent ... all crimes of affirmative action require something in the way of a mental element—at least an intention to make the bodily movement which constitutes the act which the crime requires.” LaFave & Scott, Criminal Law (1972) § 28, p. 201. Such an intent, to perform certain acts proscribed by a statute, we have referred to as the general intent ordinarily required for crimes of commission rather than omission. State v. Martin, supra, 13; State v. Bitting, 162 Conn. 1, 5, 291 A.2d 240 (1971). That the defendant intended to perform the physical acts that constitute the crime of sexual assault in the second degree in the manner proved by the evidence was implicitly a part of the state’s burden of proof and, in that sense, an element of the crime. “At all events, it is clear that criminal liability requires that the activity in question be voluntary.” LaFave & Scott, supra, § 25, p. 180; see Model Penal Code § 2.01 (1).

Our acknowledgement of the fundamental principle that a criminal act must be volitional does not mean that a charge to a jury that omits reference to this principle is constitutionally defective where the evidence at trial contains no suggestion that the defendant’s conduct was involuntary and he has made no such claim either in the trial court or on appeal. The defendant has produced no authority in support of the novel proposition he advances and we have discovered none. There are some basic aspects of criminal liability that may be presumed and thus need not be discussed in a charge to the jury, at least in the absence of a request or some evidence casting doubt upon the presumption. Sanity of a defendant, an essential requirement for criminality, even before the advent of the 1983 amendment to General Statutes § 53a-13 making insanity an affirmative defense; Public Acts 1983, No. 83-486; never became an issue upon which jury instructions were required until evidence that the defendant may have lacked the requisite mental capacity came into the case. State v. Rodgers, supra, 56. Duress and entrapment are recognized defenses to criminal charges because they also implicate the volitional aspect of criminality. General Statutes §§ 53a-14, 53a-15. Though the state bears the burden of disproving these defenses, once they are raised by the presentation of some evidence supporting them, there is no requirement that evidence negating them be produced as part of the state’s prima facie case. A fortiori there is no requirement that a court suo motu instruct a jury upon these defenses in cases where the evidence produced by both parties contains not the remotest hint of their applicability.

The defense of the absence of a general intent to do a criminal act may be treated similarly. Until something in the evidence indicates the contrary, the court may presume the defendant intended the prohibited bodily movements that constitute the offense and that he has acted under no duress, unlawful inducement in the nature of entrapment, or lack of requisite mental capacity. Accordingly, we reject the defendant’s claim that in this case the failure of the court to instruct the jury upon the general intent requirement was constitutional error or, indeed, error at all.

II

The defendant claims that the trial court erroneously applied the patient-psychiatrist privilege created by General Statutes §§ 52-146d and 52-146e to restrict his cross-examination and also his direct examination of a witness the state had called to prove “constancy of accusation.”

It is important in our analysis of this claim of error to detail the setting in which the statutory privilege was exercised. The defendant had served a subpoena duces tecum upon Jonathan Swift, the counselor-therapist who had treated the complainant, and, before the start of trial, sought to examine the records pertaining to the complainant that Swift had brought to court in response to the subpoena. Swift testified at the hearing upon his motion to quash the subpoena, which the court denied, that he was employed as a counselor at a family counseling center under the supervision of a child psychiatrist. He also testified that he had brought with him the records of his consultations with the complainant and his mother. The court, apparently without objection by anyone,* ** made an in camera inspection of these records.

After inspecting the records, the court reported that “no inconsistencies” had been found and that there were only two entries relating to the complainant, one dated December 1,1982, and another dated January 1, 1983, the latter referring to the sexual abuse incident of November 6, 1982, when Swift had been consulted by the complainant and his mother. Swift testified outside the presence of the jury that he had made no contemporaneous notes of that conference because the policy of the counseling center was to make notations only at the beginning of each month regarding the sessions for the previous month. He also said that he had consulted with the complainant alone or in the presence of his mother on seven occasions from October 28, 1982, to December 7, 1982.

Before Swift began his testimony before the jury, the state declared that it would use him only for the purpose of showing constancy of accusation. The defendant, however, had also subpoenaed the witness and intended to go beyond the normal scope of cross-examination by presenting him as a witness for the defense. In order to avoid the necessity of excusing and then recalling Swift to the witness stand, the court, without objection, determined that the defendant could both cross-examine the witness on the testimony elicited by the state and question him on direct examination after the state had presented his testimony. The court, however, rejected the defendant’s claim that the patient-psychiatrist privilege would be waived entirely once Swift testified about his interview with the victim and his mother on November 6, 1982, the date of the sexual assault. The court ruled that the privilege would not be applicable to inquiries relating to constancy of accusation but would remain for other matters. The defendant excepted to this ruling.

On direct examination by the state, Swift testified that on November 6, 1982, after a telephone request for an appointment, the complainant and his mother came to his office where he spoke with them together. Though he had taken no notes, he was able to relate in considerable detail the boy’s account of the sexual assault by the defendant.

On cross-examination, after exploring some discrepancies between the complainant’s testimonial account of the incident and that given to the witness, the defendant inquired whether Swift had been treating the boy and his mother for “parent-child conflicts,” as a notation in the hospital record indicated. At this point Swift claimed the privilege and the jury was excused. After an extensive colloquy, in which Swift was represented by counsel, the court upheld the exercise of the privilege on the grounds that a response to the question of the purpose of the treatment would violate the privilege and that the inquiry was not related to constancy of accusation. The defendant, who argued that the privilege had been waived by virtue of the statement in the hospital record, presumably made by the complainant or his mother, concerning the purpose of the consultations with Swift, excepted to the ruling. The cross-examination of Swift was then terminated without any further questions by the defendant.

No challenge has been made either in the trial court or on appeal to the ruling denying access to the psychiatric records relating to the consultations of the complainant and his mother with Swift, nor has appellate review been sought of the limited disclosure made by the court of pertinent information contained in those records. The defendant attacks only the court’s ruling upholding Swift’s exercise of the privilege in response to a question relating to the purpose of his consultations and the refusal to allow inquiry concerning the possibility that the complainant had been subject to sexual fantasies. He does not contest the applicability of the statutes creating the privilege as precluding inquiry into the subject matter of the psychiatric therapy sessions with the complainant but claims (1) that the privilege was waived by the testimony of the boy, his mother and Swift about the consultation on the date of the offense, which the state introduced to show constancy of accusation, and (2) that, whether or not there was such a waiver, the constitutional right of a defendant to confront his accusers requires that the statutory privilege stand aside.

Although this court has indicated that a patient may waive the privilege against disclosure of conversations and records pertaining to psychiatric treatment, we have never held that such waiver may be implied merely from testimony at a trial concerning events relevant to proof of the crime. The testimony concerning the complainant’s narrative to Swift concerning the sexual assault offense, which the trial court ruled was not privileged and was, therefore, properly subject to cross-examination, cannot be deemed to provide access to wholly separate communications related to treatment of the boy or his mother. “[Wjaiver is the voluntary relinquishment of a known right.” Del Vecchio v. Del Vecchio, 146 Conn. 188, 194, 148 A.2d 554 (1959). The trial record is barren of any indication that the complainant or his mother was aware that, as a consequence of testifying at the behest of the state, consent to access by the defendant to the entire series of their consultations with Swift would be implied. “Consent” is expressly required by subsection (a) of § 52-146e for disclosure of psychiatric communications or records and is defined in § 52-146d (3) to mean “consent given in writing by the patient or his authorized representative.” Subsection (b) of § 52-146e requires that “[ajny consent given to waive confidentiality shall specify to what person or what agency the information is to be disclosed and to what use it will be put.” These statutory provisions preclude at least the implied waiver that the defendant contends arose from the testimony offered to prove constancy of accusation on the part of the complainant. Even in the absence of such legislative restrictions upon the principle of implied waiver, none of the authorities relied on by the defendant has gone so far as to declare that revelation by a witness of one conversation that would otherwise be privileged constitutes a waiver of other unrelated conversations with the same person. Accordingly, we reject the defendant’s first contention, that the complainant and his mother waived the privilege by virtue of their testimony or the use of Swift’s testimony concerning their discussion of the events constituting the crime during their conference on November 6, 1982.

We must finally address the remaining claim, that to allow the statutory privilege to bar inquiry for the purpose of eliciting from Swift information possibly relating to the credibility of such a crucial prosecution witness as the complainant in this case violates the defendant’s constitutional right of confrontation. Although the defendant briefs this issue in terms of his right of cross-examination, the gist of his constitutional claim is that the exercise of the privilege prevented him from discovering whether the complainant in his therapy sessions with Swift had manifested any inclination toward sexual fantasy or other mental abnormality that might affect the credibility of his testimony. See State v. Ouellette, 190 Conn. 84, 103-104, 459 A.2d 1005 (1983). We can discern no flaw in the court’s ruling that cross-examination of Swift should be limited to the subject matter of his direct examination, the complainant’s narrative of the crime. “[Ijnsofar as the cross-examination does not take the form of an attack on the credibility of the witness, it must be limited to the subject matter of the direct examination.” Mendez v. Dorman, 151 Conn. 193, 198, 195 A.2d 561 (1963). The defendant does not contend that his cross-examination was in any manner restricted concerning either Swift’s credibility or the account given to him of the sexual assault incident. Nor can it be maintained that the exercise of the privilege by Swift hampered the cross-examination of the complainant or his mother, who had been fully questioned without any attempt to probe their mental condition when they had testified earlier in the trial.

The ruling upholding Swift’s invocation of the privilege, however, did prevent the defendant from learning through direct examination whether the complainant had shown during his contacts with Swift any mental abnormality that might have reflected upon the credibility of his accusation against the defendant. If such information had been discovered, absent the privilege, it would have been admissible to discredit the complainant’s testimony. Taborsky v. State, 142 Conn. 619, 629, 116 A.2d 433 (1955).

This court has faced similar problems of attempting to reconcile the privilege with the right of confrontation in respect to disclosure of records of psychiatric treatment of a witness in a criminal case. State v. Bruno, 197 Conn. 326, 329-32, 497 A.2d 758 (1985), cert. denied, 475 U.S. 1119, 106 S. Ct. 1635, 90 L. Ed. 2d 181 (1986); State v. Esposito, 192 Conn. 166, 177-80, 471 A.2d 949 (1984); State v. Storlazzi, 191 Conn. 453, 455-63, 464 A.2d 829 (1983). In State v. Storlazzi, supra, an in camera inspection of the records had been made by the trial court, apparently without objection, as in this case, and we affirmed, after our own examination of these records, the denial of the defendant’s request for access to them, because they did not “sufficiently disclose material especially probative of the victim’s ability to know and correctly relate the truth so as to justify breaching their confidentiality in disclosing them to the defendant.” Id., 460. In State v. Esposito, supra, where the trial court had refused to make an in camera examination of psychiatric records, we upheld the ruling upon the ground that, before the court should engage in that procedure, even with the consent of the witness, “there must be a showing that there is reasonable ground to believe that the failure to produce the information is likely to impair the defendant’s right of confrontation such that the witness’ direct testimony should be stricken.” Id., 179. In that case we found that there had been no “threshold showing that at any pertinent time [the witness] had a mental problem which affected her testimonial capacity in any respect, let alone to a sufficient degree to warrant further inquiry.” Id., 180. In State v. Bruno, supra, though we ultimately found harmless error, we concluded that the preliminary showing required by Esposito had been made adequately. We found some indication of the existence of mental abnormalities affecting testimonial capacity based upon testimony of the witness, elicited on cross-examination, “regarding her psychiatric treatment and hospitalizations, her alcoholism and drug use, her suicide attempts, and her feelings of fear and anger toward the defendant.” Id., 332. We decided that, “absent any knowledge of the contents of her psychiatric records, it is impossible to determine whether they included relevant impeaching evidence that was not cumulative or was contrary to her testimony” and that “[t]o rely on the testimony actually elicited on cross-examination in assessing whether the defendant’s sixth amendment rights were violated would involve pure speculation as to the contents of the witness’ records.” Id.

If we were to follow the requirement of Esposito for a “threshold showing that at any pertinent time [the complainant] had a mental problem which affected [his] testimonial capacity in any respect” it is doubtful that the evidence before us of consultations with a psychiatric therapist for “parent-child conflicts” or the somewhat bizarre narrative of the incident itself would be sufficient to require the court to engage in a review of the psychiatric records of the complainant. Such an examination of those records did take place, however, and the defendant has made no claim that any pertinent material contained therein was not disclosed to him. His claim is that he was prevented by the privilege from discovering whether Swift had information, other than that contained in the records previously reviewed by the court, of any mental aberrations of the complainant that might reflect upon his credibility. Without any opportunity to ascertain whether such information exists, it would ordinarily be impossible for a defendant to lay the groundwork demanded by Esposito 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.

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. See State v. Esposito, supra, 179-80. In the closely analogous context of the privilege created by General Statutes § 52-146k attending communications of a sexual assault victim to a rape crisis counselor, we have not insisted upon a determination that the confidential communications of the victim were inconsistent with his testimony at trial before an in camera review may be conducted by the court, with the victim’s consent, of the record of those prior statements. In re Robert H., 199 Conn. 693, 709-10, 509 A.2d 475 (1986). It was held in Davis v. Alaska, 415 U.S. 308, 320, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974), that “[t]he State’s policy interest in protecting the confidentiality of a juvenile offender’s record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness.” Similarly, the privilege created by § 52-146e for communications of a psychiatric patient must give way to the interest of a criminal defendant in determining whether there is substantial evidence of a mental condition of a vital witness for the prosecution that might reasonably affect the credibility of the witness. If the testimony of such a witness is to remain in the case as a basis for conviction, the defendant must be afforded a reasonable opportunity to discover any infirmities that may cast serious doubt upon its truthfulness.

The procedure we established in Esposito and Bruno for permitting the trial court, with the consent of the witness, to review in camera the records of psychiatric treatment that are before the court must be modified if a defendant is to have the same protection of his constitutional right of confrontation in respect to unrecorded communications made confidential by § 52-146e. Where there is any reasonable basis in the evidence for believing that psychiatric personnel may have information relating to the mental condition of a witness that might affect his testimony, the court must conduct a voir dire of the person who may possess such information in order to discover whether it would be admissible. This preliminary inquiry may be conducted only with the consent of the witness sought to be impeached, but, unless such consent is forthcoming, the testimony of that witness must be stricken. The voir dire for the purpose of determining the existence of such impeaching evidence must be conducted in the courtroom in the presence of the defendant and his counsel, who shall be allowed to participate fully in the proceeding. The court may, however, exclude the public from the courtroom pursuant to Practice Book § 895. See Press-Enterprise Co. v. Superior Court of California for the County of Riverside, 478 U.S. , 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986). If, after conducting such a voir dire, the court decides that some of the evidence elicited is admissible at trial, the defendant shall be permitted to use it, but the remaining confidential communications shall be sealed. If no admissible impeaching evidence is discovered, the entire record of the proceeding shall be sealed for possible appellate review.

In the case before us we conclude that the trial court, before upholding the exercise of the privilege, should have conducted a voir dire of Swift to ascertain whether he possessed information about the mental condition of the complainant that would have been admissible to impeach his testimony. The error may be harmless, however, because it cannot be determined without a voir dire, which may be conducted only with the consent of the complainant, whether any such evidence exists. The case must be remanded for the purpose of conducting such a voir dire. In the event that the complainant refuses to consent to waive his statutory privilege for the purpose of such an inquiry, his testimony at the trial must be wholly stricken and, since he was the only witness to the crime, the defendant must be acquitted for insufficiency of the evidence. If the complainant does waive the privilege for this purpose and the court finds significant evidence that would be admissible for impeachment, a new trial must be granted. On the other hand, if no such evidence is discovered, the judgment of conviction must stand. See In re Robert H., supra, 710-11.

There is error, the judgment is set aside and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-71. sexual assault in the second degree: class c felony: nine months not suspendable. (a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is (1) under fifteen years of age, or (2) mentally defective or mentally incapacitated to the extent that he is unable to consent to such sexual intercourse, or (3) physically helpless, or (4) less than eighteen years old and the actor is such person’s guardian or otherwise responsible for the general supervision of such person’s welfare, or (5) in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over such other person.
      “(b) Sexual assault in the second degree is a class C felony for which nine months of the sentence imposed may not be suspended or reduced by the court.”

       General Statutes § 53a-65 (2) provides: “ ‘Sexual intercourse’ means vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex. 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. Its meaning is limited to persons not married to each other.”

       In a footnote to his brief the defendant maintains that some of the definitions of “sexual intercourse” in General Statutes § 53a-65 (2), particularly the provision that “[p]enetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim’s body,” expose to prosecution such patently noncriminal acts as those performed by a physician in conducting a vaginal or rectal examination of a child. From this reductio ad absurdum he argues that a mental element, i.e., an intent to obtain sexual gratification from the act constituting intercourse as defined, is essential for a violation of General Statutes § 53a-71. In this case we need not consider whether General Statutes § 53a-18 (5) would protect a physician in the scenario posed by the defendant, as argued by the state, because the evidence indicates no circumstances that could reasonably be deemed to justify the acts the complainant testified the defendant performed on him. The defendant at trial never sought to justify the conduct alleged but contended that the complainant’s account of the incident was wholly false.

       “[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 has 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 of COMMUNICATIONS, (a) All communications and records as defined in section 52-146d shall be confidential 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 withdrawal.”

       At this hearing the victim and his mother were represented by counsel in connection with the disclosure of their psychiatric counseling records. The witness, Jonathan Swift, was represented by counsel at this hearing and also when he testified at trial.

       The notation dated January 1,1983, concerning the sexual assault, which had occurred November 6,1982, was apparently an exception to this policy.

       This hospital record related to the examination made of the victim on November 6,1982, the date of the sexual assault, after the victim had first consulted with Jonathan Swift, the therapist.

       Although Swift was not a licensed psychiatrist, it was undisputed that he worked under the supervision of a psychiatrist and that, accordingly, communications and records relating to diagnosis or treatment of the mental condition of his patients qualified for the privilege created by General Statutes §§ 51-146d and 52-146e.

       The sixth amendment to our federal constitution provides in part: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ... .” Article first, § 8, of our state constitution contains a virtually identical provision.


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    Mary Ellen Cookson v. Edwin Cookson
    (12761)
    Peters, C. J., Shea, Danneiiy, Callahan and Stoughton, Js.

      Argued June 11
    decision released August 26, 1986

      Penn Rhodeen, with whom, on the brief, were William F. Gallagher and Eileen M. Quinn, law student intern, for the appellant (plaintiff).

      Donna Decker Morris, for the appellee (defendant).

      Patty Jenkins Pittman, for the minor children.
   Callahan, J.

This is an appeal by the plaintiff mother, Mary Ellen Cookson, from the modification of a dissolution of marriage judgment which modification transferred custody of three minor children from the plaintiff to the defendant father, Edwin Cookson. The plaintiff claims that the trial court erred in granting the motion for modification by: (1) applying a preponderance of the evidence rather than a clear and convincing evidence standard of proof; (2) substituting a “least detrimental alternative” standard for the statutory standard of the best interests of the children when determining custody; and (3) finding sufficient evidence to support a modification of custody. We find no error.

A brief recitation of the history of the case is necessary to place the plaintiff’s claims in proper perspective. The plaintiff was married to the defendant on October 7, 1972. There were three sons issue of the marriage born in 1975, 1977 and 1980. The marriage was dissolved on January 30, 1981. Judgment in the dissolution action was entered pursuant to an oral stipulation and agreement which awarded custody of the three minor children to the plaintiff subject to unspecified reasonable rights of visitation in the defendant.

In May, 1982, the defendant, having been informed by the plaintiff that she planned to move out of the state, filed a motion for specific periods of visitation. A hearing was held on the defendant’s motion on June 22, 1982. Because of a misunderstanding, however, the plaintiff did not arrive at the courthouse in time to be present. She was offered an opportunity to be heard the following day but, apparently to avoid further confrontation with the defendant, who had a psychiatric history of violent outbursts, she took the three children and left for Florida. There she joined Thomas Leahy whom she had been seeing in Connecticut after she and the defendant had separated. The plaintiff and Leahy were married in November, 1982, and thereafter resided in Florida with the children.

On August 27, 1982, as a result of the earlier hearing on June 22, the provisions of the dissolution judgment concerning child support and visitation were modified. The defendant was granted specific rights of visitation for three weeks during each summer and for a week during the Christmas holidays. The modification also lowered the defendant’s child support obligation. Compliance with the terms of the modified judgment by both parties was less than perfect.

During a visit by the children to the defendant in Connecticut in June, 1984, the defendant learned of some rather unusual disciplinary measures that had been imposed on them by their stepfather, Thomas Leahy, apparently with the knowledge and acquiescence of the plaintiff. As a result, the defendant refused to return the children to their mother in Florida and, on July 27, 1984, he filed a motion seeking to gain their custody. On August 15, 1984, the trial court, DeMayo, J., awarded temporary custody of the three children to the defendant.

On September 18, 1984, after the completion of a court ordered investigation, family relations officer Katherine Cerruti filed a report in which she indicated that the plaintiff’s acquiescence in Leahy’s “unconventional and somewhat bizarre discipline techniques raises concerns as to her overall parenting.” Cerruti recommended that the custody of the three children be transferred to the defendant under certain conditions, with limited rights of visitation in the plaintiff. Nine days later, the plaintiff initiated a divorce action in Florida against Leahy on the grounds that the marriage was “irretrievably broken.” She then filed a motion in the present action to refer the question of custody back to family relations on the ground of a “substantial change in circumstances.” Subsequently, she also filed a motion to modify the temporary custody order on the same ground. A second family relations study was ordered as a result. In that study, family relations officer Helen Murphy also recommended that custody of the children be awarded to the defendant with specific rights of visitation in the plaintiff and further recommended that the plaintiff be prohibited from removing the children from Connecticut or exposing them to Leahy.

Upon learning of Murphy’s recommendation, the plaintiff, on Friday, December 14,1984, during a visit with the children, abducted them from the defendant’s temporary custody, and returned with them to Florida and rejoined Leahy. She then told the children that the divorce action had been a sham and that she intended to remain married to Leahy. The following week the plaintiff was held in contempt of court and a warrant was issued for her arrest. Upon learning of these events and acting on the advice of her attorney, the plaintiff returned to Connecticut with the children.

Subsequent to the plaintiff’s return, a hearing was held on the defendant’s motion of July 27, 1984, to modify the dissolution judgment which granted custody of the three children to the plaintiff. The hearing, at which the court heard testimony from both lay persons and professionals, consumed eight days and covered over 1500 pages of trial transcript. A thorough exploration was undertaken of the various factors that related to a determination of the best interests of the children, including the defendant’s psychiatric history and the interaction of Leahy, the children and their mother. Those factors and the plaintiff’s seemingly irresponsible attitude toward the court were major points on which the trial court focused. At the conclusion of the hearing, the trial court, on May 10, 1985, issued a detailed memorandum of decision in which it concluded that the three children should be placed in the custody of the defendant with certain conditions imposed and that the plaintiff should have specific visitation rights with certain conditions imposed. The plaintiff has appealed from the judgment rendered on that decision.

I

The plaintiff first claims that the trial court erred in applying a “preponderance of the evidence” rather than a “clear and convincing” standard of proof to the modification proceeding. The plaintiff argues that the standard applied violated the due process clauses of both the state and federal constitutions, common law principles and sound policy.

“A standard of proof allocates the risk of error between the litigants and indicates the relative importance of the ultimate decision. Addington v. Texas, 441 U.S. 418, 423, 99 S. Ct. 1804, 1808, 60 L. Ed. 2d 323 (1979). For example, the ‘proof beyond a reasonable doubt’ standard implies that the party on whom that burden is imposed should bear almost the entire risk of error. Id. at 423-24,. 99 S. Ct. at 1808. In contrast, the ‘preponderance of the evidence’ standard indicates that the litigants should share equally the risk of error, id. at 423, 99 S. Ct. at 1808, because the interests at stake have roughly equal societal importance. Santosky v. Kramer, 455 U.S. 745, 787, 102 S. Ct. 1388, 1411-12, 71 L. Ed. 2d 599 (1982) (Rehnquist, J., dissenting). Proof by ‘clear and convincing’ evidence is an intermediate standard generally used in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing, or when particularly important individual rights are involved. Addington, 441 U.S. at 424, 99 S. Ct. at 1808.” United States v. Schell, 692 F.2d 672, 676 (10th Cir. 1982) (preponderance of the evidence standard, constitutional in “dangerous special offender” proceeding to enhance defendant’s criminal sentence).

In Santosky v. Kramer, supra, 769-70, the United States Supreme Court held that in a hearing on a petition to terminate parental rights, due process required that the state prove statutory termination criteria by a “clear and convincing evidence” standard rather than by a “fair preponderance of the evidence” standard. The plaintiff argues that the same higher standard of proof is required to comport with due process in a post-judgment modification of custody proceeding. We disagree.

The three factors considered in Santosky to determine whether a particular standard of proof in a particular proceeding satisfies due process are: (1) the private interests affected by the proceeding; (2) the risk of error created by the chosen procedure; and (3) the countervailing governmental interest supporting use of the challenged procedure. Id., 754. When those factors are applied to the present case, we conclude that a “fair preponderance of the evidence” standard was the proper standard of proof and that that standard satisfies due process under both the state and federal constitutions.

This court in In re Juvenile Appeal (83-CD), 189 Conn. 276, 455 A.2d 1313 (1983), dealt with the issue of the proper standard of proof to be applied in a temporary custody hearing. There we examined the reasoning in Santosky and concluded that the higher standard of “clear and convincing evidence,” required by Santosky, was not required in a temporary custody hearing because “(1) the nature of the private interests concerned in the two kinds of hearings differs, and (2) the deprivation of rights in a temporary custody adjudication is neither final nor irrevocable.” In re Juvenile Appeal (83-CD), supra, 297.

In the present case the nature of the private interests involved likewise differs substantially from those in Santosky. In this instance, prior to judicial intervention, neither parent had an exclusive right to the custody of the children; their rights were joint and equal. General Statutes § 45-43; Yontef v. Yontef, 185 Conn. 275, 291, 440 A.2d 899 (1981); Antedomenico v. Antedomenico, 142 Conn. 558, 562, 115 A.2d 659 (1955). This contrasts sharply with the situation in Santosky where the parents were pitted against the state and faced the prospect of losing the children permanently to a complete outsider to the family unit. Further, the modification of a custody decree does not involve the same complete severance of the parent-child relationship that results from the termination of parental rights. Santosky v. Kramer, supra, 747. After the modification of a custody order the noncustodial parent, generally speaking, retains the right to maintain a relationship with the children and to participate, albeit to a more limited extent in their upbringing. See General Statutes § 46b-56 (e); Raymond v. Raymond, 165 Conn. 735, 741, 345 A.2d 48 (1974). Also a custodial determination is not a “final and irrevocable” and immutably permanent decision as is that effected by a termination proceeding. Santosky v. Kramer, supra, 759; see McGaffin v. Roberts, 193 Conn. 393, 405, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985). The court has continuing jurisdiction over a custody decree; see § 46b-56 (a) and (b); and the noncustodial parent retains the option to move to modify custody based on a substantial change in circumstances affecting the welfare of the children. Hall v. Hall, 186 Conn. 118, 122, 439 A.2d 447 (1982); 24 Am. Jur. 2d 1003.

In sum, while substantial, the private interests involved in a custody dispute between parents and the effect on those interests wrought by a judicial transfer of custody are not such that the constitution requires the use of a “clear and convincing” standard of proof by the tribunal making the decision.

We must also consider whether the possibility of an erroneous deprivation of custody by the use of a “preponderance of the evidence” standard deprived the plaintiff of due process of law. The United States Supreme Court in Santosky stated that “the relevant question is whether a preponderance of the evidence standard fairly allocates the risk of an erroneous fact-finding between these two parties.” Santosky v. Kramer, supra, 761. The court answered that question by determining that due process required a “clear and convincing” standard in termination proceedings, based largely on what it perceived to be the unequal contest between the state and the parents from whom the state sought custody. It was the court’s view that in a proceeding to terminate parental rights the ability of the state to assemble its case almost “inevitably dwarfs the parents’ ability to mount a defense.” Id., 763. Additionally, the court pointed out that in a termination proceeding there is a striking disproportion in the litigation options of the adversaries because the parents do not have a “double jeopardy” defense against repeated state termination efforts. “If the State initially fails to win termination, as New York did here ... it can always try once again to cut off the parents’ rights after gathering more or better evidence. Yet, even when the parents have attained the level of fitness required by the State, they have no similar means by which they can forestall future termination efforts.” Id., 764.

The United States Supreme Court found that those factors coupled with the use of a “fair preponderance of the evidence” standard created a “significant prospect of erroneous termination”; id.; and that the consequent social cost of the complete destruction of the natural family by an erroneous termination of parental rights was too great a risk to assign to a “preponderance of the evidence” standard, which allocates the risk of error nearly equally between destruction of the family unit and mere maintenance of the status quo of the children in a foster home.

A custody dispute between parents does not present the same inherent disparity in resources, disproportionate litigation options or the risk of total destruction of the family unit which would constitutionally require the use of the higher standard of proof by “clear and convincing” evidence.

In Santosky, the final factor that the court addressed was the “countervailing governmental interest supporting use of the challenged procedure.” Id., 755. In a proceeding to determine custody between parents, since the government is not a party, this factor would translate to whether the competing interests of those affected by the litigation support the use of a “preponderance of the evidence” standard or require the use of a “clear and convincing” standard.

In a custody dispute between parents, unlike the termination proceeding in Santosky where the court found the parents and the children had a common interest in preventing destruction of the family unit by the state, each parent and the children have interests which conflict in varying degrees but have relatively equal weight on the societal scale. The custodial parent has an interest in retaining custody, the noncustodial parent has an interest in the well-being of the children, and the children have an interest in continuity of care. The overriding concern, however, is that the children be placed in an environment that secures their best interests.

When the interests of the parents vis-a-vis each other and the children allegedly conflict, that conflict is best resolved by placing the burden on the noncustodial parent to prove by a fair preponderance of the evidence that a transfer of custody is in the best interests of the children. Where “important interests affected by a proceeding are in relative equipoise, as they are in this situation, a higher standard of proof would necessarily indicate a preference for protection of one interest over the other.” In re Juvenile Appeal (83-CD), supra, 298.

Although we recognize the importance of continuity of care as a significant factor in the statutory mandate that custody disputes be resolved in accord with the “best interests of the child,” we do not believe that this consideration requires implementation through departure from the normal standard of proof. As in In re Juvenile Appeal (83-CD), supra, 298-99, “the various interests [in a temporary custody hearing] are best served by applying the normal civil standard of proof which is a fair preponderance of the evidence.”

We conclude therefore that, although a “clear and convincing” standard of proof is constitutionally required for the termination of parental rights under Santosky and is mandated by statute, the burden of proof by a “preponderance of the evidence” placed on the moving parent in a proceeding to determine custody comports with due process and serves adequately to protect the various interests involved. The trial court did not err in using that standard. See Leo v. Leo, 213 N.W.2d 495, 496 (Iowa 1973); Watters v. Watters, 112 Mich. App. 1, 13, 314 N.W.2d 778 (1981); Vieira v. Vieira, 98 R.I. 454, 457, 204 A.2d 431 (1964); Masek v. Masek, 90 S.D. 1, 6-7, 237 N.W.2d 432 (1976); Oglesby v. Silcott, 620 S.W.2d 820, 823 (Tex. Civ. App. 1981).

This conclusion should not be deemed to sanction the modification of custody for less than compelling reasons. We hold only that a modification of custody hearing is not a proceeding that requires, constitutionally or otherwise, the judicial implementation of a burden of proof other than the familiar civil standard.

II

The plaintiff next claims that the trial court did not apply the statutorily required “best interests of the child” standard in making its custody determination. That standard is mandated by General Statutes § 46b-56 (b) which provides in pertinent part, “[i]n making or modifying any order with respect to custody or visitation, the court shall be guided by the best interests of the child. ...” Accordingly, our case law makes it clear that when determining the custody of minor children the ultimate test the court must apply is the “best interests of the child.” Stewart v. Stewart, 177 Conn. 401, 408, 418 A.2d 62 (1979). The plaintiff asserts that the trial court applied a “least detrimental alternative” standard rather than the “best interests of the child” standard in its determination of the custody of the children. We find no merit in the plaintiffs claim.

The trial court in its memorandum of decision did indicate that it sought the “least detrimental alternative” and in the prologue to its memorandum of decision appeared to equate the “least detrimental alternative” with the best interests of the children. The trial court was, however, obviously searching to accommodate the best interests of the children, and on the record before us we have no reason to believe that it did not ultimately apply the “best interests of the child” standard to its decision. “Least detrimental alternative” was manifestly alternate phraseology utilized by the trial court to describe the compelling concerns involved in the difficult custody decision it faced. Significantly, later in its memorandum of decision, the trial court recognized that the defendant was asking the court to consider the present best interests of the children and, in promulgating its orders, the trial court summarized its conclusions in the following manner. “Return to the home of the parent who obstructed the children’s relationship with their father, who permitted someone other than herself to impose humiliating and frightening punishments for relatively minor misbehaviors, and who lied and defied court orders, is inconsistent with the best interests of these children.”

The fact that the “least detrimental alternative” was mentioned in the trial court’s decision as a desirable goal and may have culminated in the same result as the statutory criteria does not require a conclusion that the court based its decision on that standard. Any ambiguity notwithstanding, and no clear evidence to the contrary having been introduced, it was implicit in the trial court’s award that it was based on the statutory standard of “the best interests of the child.” Dubicki v. Dubicki, 186 Conn. 709, 718, 443 A.2d 1268 (1982).

Ill

The plaintiff’s final claim is that the evidence in the whole record is insufficient to support a change in custody. She argues that the trial court’s finding of facts was clearly erroneous, that the trial court failed to find and include in its memorandum of decision facts which were admitted or undisputed, that the conclusions of the trial court are not logically or legally correct or supported by the facts set out in the memorandum of decision and that the trial court abused its discretion in ruling as it did because the evidence was insufficient to support its judgment.

We cannot retry the case. State v. Rodriquez, 200 Conn. 685, 693, 513 A.2d 71 (1986); Kaplan v. Kaplan, 186 Conn. 387, 391, 441 A.2d 629 (1982); Yontef v. Yontef, supra, 278-79; Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975). “On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. See Practice Book, 1978, § 3060D. This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, these facts are dearly erroneous.” (Emphasis added.) Pandohphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

We have reviewed the record and, while there are areas where reasonable persons could differ in their interpretation of the evidence, we cannot say that, as a matter of law, the trial court’s factual findings are unsupported or mistaken. See Koizim v. Koizim, 181 Conn. 492, 498, 435 A.2d 1030 (1980); deCossy v. deCossy, 172 Conn. 202, 204, 374 A.2d 182 (1977). They were therefore not clearly erroneous. Sportsmen’s Boating Corporation v. Hensley, 192 Conn. 747, 751, 474 A.2d 780 (1984); Garrison v. Garrison, 190 Conn. 173, 176, 460 A.2d 945 (1983). “A factual finding may be rejected by this court only if it is ‘clearly erroneous.’ ” Kaplan v. Kaplan, supra, 392.

Further, the trial court was not required to recite all the facts on which it relied. It did file a lengthy memorandum of decision and included a discussion of the factual findings which adequately supported its conclusions. “The trial court’s failure to include certain findings does not constitute error when the only effect of such inclusion would be to present a more detailed recital of surrounding events which do not undermine the basis for the trial court’s decision.” Trunik v. Trunik, 179 Conn. 287, 288-89, 426 A.2d 274 (1979). Finally, we cannot say, from our review of the record, that the conclusions of the trial court were legally or logically incorrect or unsupported by the facts or that the evidence was insufficient for the trial court to rule as it did. “The weight given the evidence before it is within the sole province of the trial court.” Timm v. Timm, 195 Conn. 202, 210, 487 A.2d 191 (1985). The action of the trial court is entitled to great weight and is due every reasonable presumption that it is correct. Id., 206. “ 'Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference.’ Morrill v. Morrill, 83 Conn. 479, 491, 77 A. 1 [1910].” Simons v. Simons, 172 Conn. 341, 348, 374 A.2d 1040 (1977); Hall v. Hall, 186 Conn. 118, 124, 439 A.2d 447 (1982).

There is no error.

In this opinion the other justices concurred.

       The parties stipulated that the defendant had no burden to prove a substantial change in circumstances because, at the time of the dissolution of the marriage, no evidence was taken concerning the best interests of the children. See Stewart v. Stewart, 177 Conn. 401, 407, 418 A.2d 62 (1979); Simons v. Simons, 172 Conn. 341, 348, 374 A.2d 1040 (1977).

       “[General Statutes] Sec. 45-43. father and mother joint guardians. The father and mother of every minor child are joint guardians of the person of the minor, and the powers, rights and duties of the father and the mother in regard to the minor shall be equal. If either father or mother dies or is removed as guardian, the other parent of the minor child shall become the sole guardian of the person of the minor.”

       General Statutes § 46b-56 (e) provides: “A parent not granted custody of a minor child shall not be denied the right of access to the academic, medical, hospital or other health records of such minor child unless otherwise ordered by the court for good cause shown.”

       General Statutes § 46b-56 (a) and (b) provide: "Sec. 46b-56. (Formerly Sec. 46-42). superior court orders re custody and care of minor CHILDREN IN ACTIONS FOR DISSOLUTION OF MARRIAGE, LEGAL SEPARATION AND ANNULMENT. ACCESS TO RECORDS OF MINOR CHILDREN BY NONCUSTODIAL parent, (a) In any controversy before the superior court as to the custody or care of minor children, and at any time after the return day of any complaint under section 46b-45, the court may at any time make or modify any proper order regarding the education and support of the children and of care, custody and visitation if it has jurisdiction under the provisions of chapter 815o. Subject to the provisions of section 46b-56a, the court may assign the custody of any child to the parents jointly, to either parent or to a third party, according to its best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable. The court may also make any order granting the right of visitation of any child to a third party including but not limited to grandparents.
      “(b) In making or modifying any order with respect to custody or visitation, the court shall be guided by the best interests of the child, giving consideration to the wishes of the child if he is of sufficient age and capable of forming an intelligent preference, provided in making the initial order the court may take into consideration the causes for dissolution of the marriage or legal separation if such causes are relevant in a determination of the best interests of the child.”

       General Statutes § 17-43a (b) provides: “Sec. 17-43a. termination of PARENTAL RIGHTS OF CHILD COMMITTED TO COMMISSIONER. . . .(b) The superior court upon hearing and notice, as provided in sections 45-61d and 45-61Í, may grant such petition if it finds, upon clear and convincing evi-denee, that the termination is in the best interest of the child and that, with respect to any consenting parent, such parent has voluntarily and knowingly consented to termination of his parental rights with respect to such child or that, with respect to any nonconsenting parent, over an extended period of time, which, except as provided in subsection (c) of this section, shall not be less than one year: (1) The child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; or (2) the parents of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding have failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, they could assume a responsible position in the life of the child; or (3) the child has been denied, by reason of an act or acts of parental commission or omission, the care,' guidance or control necessary for his physical, educational, moral or emotional well-being. Nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights; or (4) there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child. If the court denies a petition for consent termination of parental rights, it may refer the matter to an agency to assess the needs of the child, the care the child is receiving, and the plan of the parent for the child.”


author: Dannehy, J.

text:
    State of Connecticut v. Joseph Silva
    (12611)
    Peters, C. J., Healey, Dannehy, Santaniello and Callahan, Js.

      Argued June 3
    decision released August 26, 1986

      Sanford J. Plepler, special public defender, with whom, on the brief, was Stephen Fournier, for the appellant (defendant).

      Carl Schuman, assistant state’s attorney, with whom were James Thomas, assistant state’s attorney, and, on the brief, John M. Bailey, state’s attorney, for the appellee (state).
   Dannehy, J.

The defendant, Joseph Silva, was charged by indictment on October 20,1982, with murder in violation of General Statutes § 53a-54a (a) and (c). A jury found the defendant guilty as charged. After his motions for a judgment of acquittal and to arrest judgment were denied, the defendant was sentenced to imprisonment for a term of not less than twenty-five years nor more than life. On appeal, the defendant contends that the trial court erred: (1) in admitting evidence showing the defendant’s prior acts of misconduct; (2) in denying the defendant’s motions for the production of prior written statements made by two state’s witnesses; (3) in admitting evidence that the defendant had purchased bullets similar to those removed from the murder victim; and (4) in its supplemental instructions to the jury. We find no reversible error.

On the evening of January 10,1981, at approximately 9:45 p.m., Jeffrey Glass was shot to death outside his apartment in Glastonbury. A search of the crime scene uncovered two spent CCI .22 caliber shell casings. No weapon was found. The medical examiner, Stephen Adams, testified that the cause of death was .22 caliber bullet wounds to the victim’s chest. A canvass of local ammunition dealers revealed that the defendant had recently purchased a box of CCI .22 caliber bullets from a nearby department store on December 18,1980. It was also discovered that the victim and his wife, Joanne, had recently separated, and that Joanne and the defendant, who had known each other since childhood, had renewed their acquaintance. The defendant had been released from prison in November, 1980, and was on parole when he bought the .22 caliber bullets. The police executed a warrant to search the defendant’s apartment on January 19, 1981. The defendant was present during the search. When questioned about the bullets, the defendant informed the officers that he had discarded them in a storm drain approximately 200 yards from his apartment. With the defendant’s assistance, the police recovered the box of bullets from the storm drain, and found several bullets missing. The purchase of the bullets was a violation of the defendant’s parole, and he was returned to prison.

While the defendant remained incarcerated for violation of parole, the police continued their investigation of the Glass homicide. In September, 1981, the state offered a $20,000 reward for information leading to the conviction of Glass’ murderer. A local television station added $5000 more. Thereafter, in May, 1982, Edward Vitale, then an inmate at the state correctional center in Litchfield, contacted the Glastonbury police and claimed that the defendant had confessed the crime to him while both were imprisoned at Somers. The defendant, still in prison, was arrested three months later, on August 4, 1982. One month later a second inmate, Allen Pilotte, informed police that the defendant had confessed to him as well. Both Vitale and Pilotte testified before the grand jury, which indicted the defendant for the murder of Jeffrey Glass on October 20, 1982.

At the defendant’s trial, Vitale and Pilotte testified for the state. Vitale stated that he and the defendant first met in Somers prison in June or July of 1979, while the defendant was serving time for an earlier conviction. The defendant had been released on parole in November, 1980. Soon after his release the defendant renewed his acquaintance with Joanne Glass, who at the time was estranged from her husband. According to Vitale, the defendant stated that Joanne had wanted her husband dead. The defendant claimed to be in love with Joanne, and stated that the two of them had devised a plot to murder Glass. The plot allegedly consisted of Joanne’s luring the victim to her apartment where the defendant would be waiting. The defendant would murder Glass, and Joanne and the defendant would then arrange the apartment to make it appear that the murder had been committed by a burglar.

Vitale further testified that the defendant had told him that on the evening of January 11, 1980, Joanne called her husband and asked him to meet her at her apartment. The defendant waited inside Joanne’s apartment while Joanne drank at a nearby bar. When Glass failed to show up at the apartment, the defendant became upset and telephoned Joanne, telling her that “he wanted to get it done tonight.” Joanne agreed, and drove to her apartment where she picked up the defendant. They then drove to the victim’s apartment and waited outside. Soon the victim exited his apartment and began walking toward his truck. The defendant ran up to the victim, shot him several times with a .22 caliber semi-automatic rifle, and the victim collapsed in the parking lot. According to Vitale, the defendant stated that he ran home, burying the gun in the woods somewhere along the way.

Pilotte’s testimony was substantially identical to that of Vitale. It is important to note only that Pilotte allegedly heard the defendant’s narration of the crime on “twenty different occasions” between March and June, 1981, when he and the defendant had been “cell partners” at the Hartford correctional center, awaiting transfer to Somers. Vitale, on the other hand, claimed to have heard the defendant’s confession on numerous occasions between September and November, 1981, at Somers prison. Both Vitale and Pilotte testified on direct examination, and again on cross, that they had known about the reward before they contacted the police. They also admitted that the principal motive for their testimony was the expectation of leniency from the state with regard to their then pending criminal charges, and at the parole board.

We turn first to the defendant’s twofold claim that the trial court erred in admitting evidence of his prior acts of misconduct. The trial court, over the defendant’s objection, allowed a police officer to testify that he had arrested the defendant in 1973. The officer never testified as to the crime for which the defendant had been arrested. The trial court also allowed Vitale and Pilotte, in the course of their testimony, to relate that the defendant had been returned to prison for violation of parole resulting from his purchase of the box of bullets in December, 1980. The defendant claims that the evidence of his prior arrest, and of the fact that he was on parole when he allegedly murdered Glass, was irrelevant to the issues in the case and unnecessarily prejudiced the jury against him. We disagree.

The defendant had been arrested for violation of parole in February, 1981, shortly after he had committed Glass’ murder. He was first incarcerated in the Hartford correctional center where he had related the details of the crime to Pilotte between March and June, 1981. He was later transferred to Somers where he confessed to Vitale between September and November, 1981. Thus, the jury knew that the defendant had been incarcerated since early in 1981. They also knew, however, that he had not been arrested for Glass’ murder until August 4,1982. The trial court thus allowed the evidence of the defendant’s prior arrest and parole violation in order that the jury would have some understanding of how the defendant had come to meet Vitale and Pilotte, both of whom had been inmates in the state correctional system. Without this evidence, the testimony of Vitale and Pilotte could have been seriously undermined. The jury was not required to speculate as to why the defendant was incarcerated more than eighteen months before he finally was arrested for Glass’ murder. The trial court did not err in allowing the testimony of the defendant’s prior arrest and parole status.

The defendant also claims that the trial court erred in allowing police officers to testify that they recovered marihuana cigarettes and other contraband during the January 19, 1981 search of the defendant’s apartment. After discovering the contraband, the police gave the defendant his Miranda warnings and began to question him as to the whereabouts of the box of bullets. The defendant eventually told the police that he had discarded the box of bullets in a storm drain, and later assisted the police in its recovery. The trial court apparently admitted the testimony that contraband had been found during the search to explain why the defendant had been given Miranda warnings, which in turn would support an inference that the defendant’s statements concerning the bullets had been given voluntarily.

We cannot subscribe to the trial court’s rationale, and conclude that it abused its discretion in allowing into evidence the testimony that contraband had been found during the search of the defendant’s apartment. The defendant did not contest at trial the voluntariness or admissibility of his statements given to police during the search of his apartment. The trial court is required to balance the probative value against the prejudicial effect of evidence tending to show the defendant’s commission of other crimes, and to exclude the evidence unless the former outweighs the latter. State v. Reddick, 197 Conn. 115, 129, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986); State v. Johnson, 190 Conn. 541, 548, 461 A.2d 981 (1983); State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982); State v. Falby, 187 Conn. 6, 23, 444 A.2d 213 (1982). We can find little, if any, probative value in the testimony that contraband was found during the search of the defendant’s apartment.

Although the trial court erred in admitting the contraband evidence, we think the error was harmless under the circumstances of this case. The jury heard from two separate witnesses how the defendant had plotted to kill Glass, and how the crime had actually been committed. The defendant bears the burden of proving harmful error, since the erroneous introduction of prior misconduct evidence involves a claim arising under state law and does not involve any constitutional right. State v. Talton, 197 Conn. 280, 289-90, 497 A.2d 35 (1985); State v. Conroy, 194 Conn. 623, 626-27, 484 A.2d 448 (1984); see State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980). In light of the defendant’s confession as communicated to the jury by Vitale and Pilotte, we find it highly unlikely that the evidence that the defendant possessed contraband contributed significantly to the jury’s verdict. State v. Bruno, 197 Conn. 326, 335-36, 497 A.2d 758 (1985), cert. denied, 475 U.S. 1119, 106 S. Ct. 1635, 90 L. Ed. 2d 181 (1986); State v. Talton, supra, 292.

We next address the defendant’s claim that the trial court erred in denying his motions for production and examination of prior written statements made by two of the state’s witnesses. On direct examination Commander Paul Gibbons of the Glastonbury police department testified that, in a March 3, 1981 telephone conversation about the case, the defendant had told him that “he didn’t want to be known as a stool pigeon . . . something along that line.” Gibbons testified that he had made rough field notes of the phone conversation that were later compiled into a formal written report. Upon request the defendant was given a copy of the formal report, but Gibbons was unable to find his rough field notes. The defendant now argues that his conviction should be reversed because the trial court failed to administer the “appropriate sanctions” for the failure of Gibbons to produce his notes. We do not agree.

The appropriate sanctions for the state’s failure to comply with discovery are set forth in Practice Book § 755. That section requires the trial court either to strike the testimony of the state’s witness or “upon motion of the defendant” to declare a mistrial if “the interests of justice require.” In this case the trial court ordered Gibbons to search for his notes and bring them to court if he could find them. When Gibbons reported that he had looked for but could not find his notes, the defendant did not move for a mistrial nor did he ask that Gibbons’ direct testimony be stricken. Rather, defense counsel stated that “It’s not that I am interested in striking his testimony. I am interested in . . . finding his notes.” As the notes could not be found, defense counsel “propose[d]” that he “be allowed to inquire in the presence of the jury . . . as to whether or not [Gibbons] did, in fact, conduct an investigation seeking the notes and what he found or didn’t find, and so forth.” When the trial court agreed, defense counsel stated that he would “[l]et it go at that.”

By choosing to “[l]et it go at that,” the defendant “effectively waived, for purposes of appeal, any claim of error based on the state’s . . . [nondisclosure” of Gibbons’ notes. State v. Miner, 197 Conn. 298, 306, 497 A.2d 382 (1985). The defendant did not move for a mistrial or that Gibbons’ testimony be stricken, but rather, received from the trial court precisely what he had requested. As a consequence, there is nothing for this court to rule upon, and the defendant’s claim cannot be reviewed.

The defendant also claims error in the trial court’s refusal to order production of a written “statement” that Pilotte had made to his attorney concerning the Glass homicide. After Pilotte had concluded his direct testimony for the state, the state assured the defendant that it had provided him with Pilotte’s only written statement made to the Glastonbury police. The defendant then announced that he had subpoenaed Pilotte’s attorney, William Collins, requesting him to produce a second statement given by Pilotte. Collins testified that he had met with Pilotte and discussed what Pilotte knew about the Glass homicide. Collins stated that he had tape-recorded the discussion, and then turned the tape over to his secretary, who compiled a five page summary of the recording. According to Collins, his secretary had not transcribed the tape verbatim, but rather, “she just picked and chose in the . . . recording what she thought was important for me.” The tape was then erased.

At trial the defendant sought production of the five page summary of the tape recording. Collins refused to turn over the summary, asserting on behalf of Pilotte the attorney-client privilege. The state then moved to quash the subpoena on the ground that the requested document was privileged, and the trial court granted the state’s motion. The trial court also refused defense counsel’s request that the summary be marked as an exhibit for identification. Although the trial court clearly recognized that it must mark any item offered by counsel as an exhibit for identification, it reasoned that if it quashed the subpoena there would be nothing for counsel to offer. The trial court also noted that “the rule that anything must be marked for identification could not be used in lieu of or as a substitute for a motion for production.”

We can agree with the trial court that if a motion to quash a subpoena duces tecum is properly granted, then there is no real need to have marked the item sought as an exhibit for identification. This is because the granting of the motion, if proper, conclusively establishes that the evidence sought is not discoverable and, a fortiori, not admissible at trial. The difficulty with the trial court’s reasoning arises from the possibility that the motion to quash was improperly granted. In that case the reviewing court is precluded from considering the probable effect of the evidence had it been admitted at trial. Thus, the general rule has evolved that the trial court must mark as an exhibit for identification anything offered by counsel. State v. Onofrio, 179 Conn. 23, 34, 425 A.2d 560 (1979); Drazen Lumber Co. v. Casner, 156 Conn. 401, 405-406, 242 A.2d 754 (1968); Duncan v. McTiernan, 151 Conn. 469, 470, 199 A.2d 332 (1964). In the present case, however, we need not decide whether the trial court erred in refusing to mark the summary as a sealed exhibit for identification, because under the circumstances we find that it properly granted the state’s motion to quash the subpoena duces tecum.

In State v. Cascone, 195 Conn. 183, 487 A.2d 186 (1985), we recently considered the circumstances under which the attorney-client privilege must yield to the defendant’s need to confront the witnesses against him. In that case the defendant’s alleged accomplice was the principal witness for the state. The defendant sought to elicit testimony from an attorney, who initially had represented jointly both the defendant and the witness, that the witness had told the attorney that the defendant had not committed the crime. Id., 186. The trial court disallowed the testimony, sustaining the accomplice’s invocation of the attorney-client privilege. In reversing the defendant’s conviction, we set forth a balancing test under which the “trial court should honor the privilege if and only if ‘[t]he injury that would inure to the [attorney-client] relation by the disclosure of the communicatio[n] [is] greater than the benefit thereby gained for the correct disposal of litigation.’ (Emphasis in original.) 8 Wigmore, [Evidence] § 2285 (4), p. 527.” State v. Cascone, supra, 189.

The defendant on appeal relies on State v. Cascone for his claim that his need for the summary of Pilotte’s statement to his attorney outweighed any injury that disclosure might have caused the attorney-client relationship. We would first note that our holding in Cascone assumes the existence of a valid attorney-client relationship essential to support an invocation of the privilege. Only then is it necessary to balance the “competing interests of confidentiality and access to evidence.” Id. At ño time during the trial of this case did the defendant contend that his need for the summarized statement outweighed the injury that might befall the attorney-client relationship by failure to honor the privilege. Instead, the defendant consistently maintained that Pilotte had impliedly waived the privilege by testifying to matters which he had previously discussed with his attorney. As argued by defense counsel, “I think he certainly waived [the privilege] when he testified here this morning as to the direct subject matter which is also the direct subject matter of the memorandum in [Attorney] Collins’ file. Certainly he waived it. Once he takes the stand and testifies as to that very substantive matter, he’s waived anything with regard to that statement.” According to counsel, the substance of Pilotte’s prior meeting with his attorney was no longer confidential to the extent that he had revealed similar matter in his testimony at trial. Therefore, counsel contended that the trial court should read the summarized statement to determine whether it concerned the details of the defendant’s alleged confession to Pilotte. Counsel argued that the summarized statement could not be considered confidential for purposes of the attorney-client privilege to the extent that it coincided, to some unspecified degree, with Pilotte’s testimony at trial.

The trial court was thus not asked to balance the competing interests of confidentiality and access to information. Rather, the trial court devoted substantial time to the defendant’s suggestion that the attorney-client privilege is waived merely because the client openly describes a series of events which he previously has related in confidence to his attorney. It is important in this case to note that Pilotte did not refuse to divulge what the defendant allegedly had told him about the Glass homicide. Pilotte claimed the privilege only with respect to his previous discussions with his attorney. As aptly stated in colloquy by the trial court: “The point remains that what you are seeking is a summary of a conference between an attorney and his client in which the client sought legal advice. Now, that client has testified about a lot of things here today, but he has not testified about this conference with his attorney, so that the Court is not willing to infer that he has waived the attorney-client privilege. He’s testified as to what your client told him about the Jeffrey Glass murder. He has not testified concerning his conference with his attorney.”

Thus, although the issue at trial is somewhat dissimilar to that now raised by the defendant on appeal, we would note in passing that even under Cascone the defendant would not have been entitled to production of Pilotte’s summarized statement to his attorney. The defendant in Cascone offered evidence that the principal witness against him had previously stated that the defendant had not committed the crime, and we determined that the jury was entitled to consider such information during its deliberations. The defendant Cascone had thus clearly made a substantial threshold showing of need for the privileged information. In the present case, however, the defendant had no idea of what would be found in Pilotte’s summarized statement to his attorney. The defendant could only surmise that some inconsistency or other beneficial disclosure might come to light. We do not believe that mere curiosity should be enough to overcome the attorney-client privilege.

Finally, the record reflects that the defendant had adequate opportunity to test the credibility of Pilotte’s testimony. Counsel had possession of Pilotte’s prior statement given to the Glastonbury police, as well as a transcript of his testimony before the grand jury. Counsel apparently was unable to detect any significant inconsistencies between Pilotte’s prior statements and his testimony at trial. Pilotte was cross-examined extensively as to his twelve prior felony convictions, as to his expectation of leniency from the state with respect to his pending criminal charges, and as to his desire for a reduction in his appeal bond. Pilotte admitted that his situation had been “desperate” when he contacted the Glastonbury police seeking to make a deal. Pilotte also conceded that he had raised the defense of alcohol dependency in all of his cases over the past ten years, and that his addiction to alcohol had most likely affected his memory. Reviewing the entire course of cross-examination; State v. Edwards, 201 Conn. 125, 142-43, 513 A.2d 669 (1986); we do not believe that the search for truth was critically impaired by the trial court’s refusal to order production of Pilotte’s summarized statement made to his attorney. The trial court did not err in granting the state’s motion to quash the subpoena duces tecum.

We next turn to the defendant’s claim that the trial court erroneously allowed into evidence testimony that the defendant had purchased a box of .22 caliber bullets in December, 1980. The defendant’s essential argument in this regard is that the bullets which he had purchased “simply could not be linked to the projectile that killed the decedent.” The defendant concludes that the prejudicial effect of the testimony that he purchased the bullets outweighed its probative value, and that he is thereby entitled to a new trial. We do not agree.

The fact that the defendant had purchased the box of bullets was admissible into evidence for several reasons. First, the defendant’s purchase of the bullets was a violation of his parole, resulting in his return to prison where he would eventually tell his story to Vitale and Pilotte. As previously discussed, the jury was entitled to know how the defendant had become associated with these prison inmates long before his arrest for this murder. Second, the state presented ballistics testimony that the slugs removed from Glass’ body, and the shell casings found at the scene of the crime, were of the same make and type as the .22 caliber bullets purchased by the defendant. The murder weapon was never recovered, so the ballistics expert could not determine whether the slugs had been fired from any particular gun; nor could the expert render an opinion as to whether the slugs and casings found at the crime scene had come from the box of bullets purchased by the defendant. Yet, the state was not required to prove to an absolute certainty that the bullets recovered from the victim’s body came from the box purchased by the defendant. State v. Morrill, 197 Conn. 507, 548-49, 498 A.2d 76 (1985). The jury could reasonably have drawn significance from the state’s evidence that the bullets were of the same make and type, that the defendant had purchased them less than one month before Glass’ murder, that the defendant had discarded the bullets in a storm drain, and that a number of bullets were found missing from the box.

The defendant in his brief relies on our cases in which we have found reversible error in the trial court’s admission of prejudicial evidence tending to show the commission of other crimes where that evidence was unrelated to the crime charged. State v. Onofrio, 179 Conn. 23, 31, 425 A.2d 560 (1979); State v. Acklin, 171 Conn. 105, 114-15, 368 A.2d 212 (1976); State v. Ferraro, 160 Conn. 42, 45, 273 A.2d 694 (1970); State v. Johnson, 160 Conn. 28, 31, 273 A.2d 702 (1970); see State v. Wilson, 199 Conn. 417, 449-50, 507 A.2d 1367 (1986). In the present case, however, the state offered sufficient evidence to connect the bullets purchased by the defendant with those recovered from Glass’ body. In addition to the facts cited above, Vitale offered the following significant testimony:

“State’s Attorney: Now, with specific reference to the discussion of the bullets, did Mr. Silva ever express any concern to you about that particular area?
“Vitale: He was very upset with himself about purchasing the bullets.
* * *
“State’s Attorney: Did Mr. Silva ever relate to you what he did with the bullets, those particular bullets?
“Vitale: Aside from the ones he used in the gun?
“State’s Attorney: Yes.
“Defense Counsel: Besides what?
“Vitale: Aside from the ones he used in the gun. Yes, he did. He told me that he had put them in a sewer.”

We think the clear implication of this testimony is that the defendant used some of the bullets he purchased in December, 1980, in the gun with which he shot the victim. The trial court did not err in admitting evidence relating to the defendant’s purchase of the bullets.

The defendant’s final claim of error concerns the trial court’s responses to two questions submitted by the jury during its deliberations. On the fourth day of deliberations, the jury requested a reading of a portion of the testimony of Terry Kitchen, the defendant’s principal alibi witness, as well as a response to the question: “Did Joanne Glass testify as to first contact with Joseph Silva after Jeffrey Glass’ homicide?” Kitchen had testified that the defendant informed him of the Glass homicide on January 11, 1981, one day after it had occurred. The defendant suggests that the jury wanted to determine whether Joanne Glass might have told the defendant about the homicide, or alternatively, whether the defendant knew about the crime so soon after it had been committed due to his own complicity in it.

The trial court ordered the testimony of Kitchen read back to the jury. Both counsel explicitly agreed that the trial court should answer the jury’s question by stating: “The record does indicate when Joanne Glass first saw Joseph Silva after the homicide. If you wish further information concerning the matter, you may form a specific question and submit it to the court.” The trial court then responded to the jury as agreed. Within twenty-five minutes the jury submitted a second question: “Please read us testimony of Joanne Glass as to her first contact with Joseph Silva following Jeffrey Glass’ homicide.” The court reporter then located the testimony requested by the jury. In order to place that testimony in context, we begin several lines ahead:

“State’s Attorney: How would you characterize your relationship to Mr. Silva prior to your marriage to Jeffrey Glass?
“Joanne: We were friends.
“State’s Attorney: Had you ever lived together or anything of that nature?
“Joanne: No, never.
“State’s Attorney: Had you ever dated?
“Joanne: No.
“State’s Attorney: I take it [that] it was the same type of relationship after you were married to Mr. Glass, same relationship with Mr. Silva?
“Joanne: Correct.
“State’s Attorney: You hadn’t seen him at any time during the period . . . that you were married to Mr. Glass that you can recall?
“Joanne: Not that I can recall. I may have, but I just don’t recall it.
“State’s Attorney: When next did you see Mr. Silva after the day that your husband was killed? [Emphasis added.]
“Joanne: A few days later.
“State’s Attorney: Under what circumstances?
“Joanne: My brother had walked my dog and I guess he saw him and invited him over to my mother’s house.
* * *
“State’s Attorney: You saw Mr. Silva at that time and what did you discuss, if anything?
“Joanne: Probably how upset I was at the time, what had unfortunately happened.
“State’s Attorney: That was the extent of your conversation?
“Joanne: Well, there were other people present at the conversation, so he didn’t only speak to me.
“State’s Attorney: How long were you in the presence of Mr. Silva on this particular occasion?
“Joanne: Probably about an hour.
“State’s Attorney: When next did you see Mr. Silva?
“Joanne: A few weeks later.”

The trial court proposed that the above testimony be read to the jury. Before doing so it asked for comments from counsel. Defense counsel made the following statement: “Well, for the record, your Honor, I suppose I should just state that—as I did in chambers, that the question as it is phrased refers to first contact. The transcript, it’s true, refers to when she saw him next. I don’t know that the reading of this transcript is responsive to the question that the jury has asked, so to that extent I just wish to take an exception.” The trial court then ordered the relevant portion of Joanne Glass’ testimony read back to the jury.

The defendant claims on appeal that Joanne’s testimony should not have been read back to the jury. While that testimony indicates that Joanne had not seen the defendant until several days after the murder, the defendant argues that the jury’s question referred more broadly to contact of any kind, including, e.g., telephone contact. Thus, the defendant contends that Joanne Glass had not testified as to her first contact with the defendant after her husband’s murder, and that the answer to the jury’s first question should have been “no,” instead of the affirmative answer as stipulated by both counsel at trial. The defendant claims to have been prejudiced by the trial court’s reading back the testimony of Joanne Glass because the jury purportedly was left with the impression that the defendant’s first contact with Joanne was not until several days after the homicide, and that the defendant could only have known about the homicide on the following day because he had in fact committed it.

We find no merit in the defendant’s claim. The portion of Joanne Glass’ testimony read to the jury would suggest that she had not had significant contact of any kind with the defendant until several weeks after the murder. The testimony was read verbatim, and therefore, the jury heard her testify that she had not seen the defendant until several days later—not that she had had no contact with him. The jury was entitled to draw its own conclusion as to whether there had been any telephone conversation between them. Finally, Kitchen, the defendant’s alibi witness, testified that he had not seen the defendant on January 11,1981, until approximately 4 p.m. By that time the defendant could have learned about Glass’ murder on the night before from any number of sources. In sum, we do not think it reasonably possible that the jury could have been misled by the trial court’s reading of the challenged portion of Joanne Glass’ testimony.

There is no error.

In this opinion the other justices concurred.

       The defendant also briefed the claim that this prosecution should have been dismissed on the ground that the warrant for his arrest was not supported by oath or affirmation. At oral argument the defendant withdrew this claim in light of our recent decision in State v. Fleming, 198 Conn. 255, 502 A.2d 886 (1986).

       With regard to the statutory psychiatrist-patient privilege; General Statutes § 52-146e; we have recently held that the trial court must conduct an in camera proceeding “[wjhere there is any reasonable basis in the evidence for believing that psychiatric personnel may have information relating to the mental condition of a witness that might affect his testimony.” State v. Pierson, 201 Conn. 211, 228, 514 A.2d 724 (1986). Implicit in Pierson was the recognition that without such a proceeding it is simply not possible for the defendant to discover testimonial incapacities arising from the witness’ unstable mental condition. In the present case the sources of Pilotte’s potential to falsify Ms testimony—the reward, Ms desire for leniency—were fully exposed to the jury. Furthermore, Pierson does not authorize a generalized in camera search through psychiatric records for prior inconsistent statements allegedly made by the witness. Rather, the trial court must merely determine whether the psychiatric personnel are aware of any mental condition of the witness that would be admissible to impeach Ms or her credibility. We do not believe that our holding in Pierson can reasonably support the defendant’s claim for an in camera proceeding in this case.