author: KATZ, J. VERTEFEUILLE, J.,

text:
    STATE OF CONNECTICUT v. CHARLES SLIMSKEY
    (SC 16411)
    Sullivan, C. J., and Borden, Norcott, Katz and Vertefeuille, Js.

      Argued April 25
    officially released September 4, 2001

      Donald G. Leis, Jr., for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, was Scott J. Murphy, state’s attorney, for the appellee (state).
   Opinion

KATZ, J.

The defendant, Charles Slimskey, was convicted after a jury trial of two counts of risk of injury to a child in violation of General Statutes (Rev. to 1995) § 53-21, one count of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), and one count of possession of fireworks in violation of General Statutes (Rev. to 1995) § 29-357 (a). The defendant appealed from the judgment of conviction to the Appellate Court, claiming that the trial court had abused its discretion by denying him access to certain school records, including any psychological and psychiatric records, of the victim, a teenaged boy. The Appellate Court affirmed the judgment of conviction. State v. Slimskey, 59 Conn. App. 341, 757 A.2d 621 (2000). We granted the defendant’s petition for certification to appeal, limited to the following issue: “Whether the Appellate Court properly affirmed the trial court’s refusal to permit the defendant to have access to certain school records of the teenaged complaining witness?” State v. Slimskey, 254 Conn. 938, 761 A.2d 764 (2000). We conclude that certain portions of the records should have been disclosed to the defendant. Accordingly, we reverse in part the judgment of the Appellate Court.

The record contains the following facts and procedural history. Prior to trial, the defendant had filed a motion seeking disclosure of certain of the victim’s school records, including psychological and psychiatric records that may have been contained therein. In that motion, the defendant sought to have the court conduct an in camera inspection of the records to determine whether anything contained therein would bear on the credibility of the victim or his ability to testify truthfully.

The trial court, Scheinblum, J., after granting the pretrial motion and conducting an in camera inspection, determined that there was nothing in the records that would bear' on the ability of the victim to testify truthfully. Accordingly, the court denied the defendant access to and use of the records. The case proceeded to trial and at the end of the defendant’s case, he moved that the trial court, Cutsumpas, J., conduct an in camera review of the school records to determine if they contained information that would bear on the truthfulness of the victim’s testimony. The trial court denied the motion on the ground that another court at an earlier stage in the same proceedings had reviewed the records and had denied the defendant access to them.

In deciding whether the trial court improperly had denied the defendant access to the victim’s school records, including any psychological or psychiatric records that may have been contained within such records, the Appellate Court inspected the records based upon its obligation “ ‘to determine if the trial court abused its discretion in refusing to release those records to the defendant.’ ” State v. Slimskey, supra, 59 Conn. App. 345-46. Concluding that the trial court reasonably could have found that they contained no evidence that was probative of the victim’s ability to be truthful, the Appellate Court determined that the trial court had not abused its discretion in denying the defendant’s motion for disclosure of the victim’s school and psychiatric records. Id., 346. Accordingly, the Appellate Court affirmed the judgment of the trial court. Id., 350. We disagree.

We have reviewed the records in connection with this appeal and conclude that the defendant should have been given access to portions of the records, and that the failure to afford him access at trial was not harmless. Accordingly, we reverse in part the judgment of the Appellate Court.

I

The following evidence adduced at trial is pertinent to the issue before this court. The victim, a male child between the ages of fourteen and fifteen at the time of the alleged occurrences involved herein, lived with his father, his father’s girlfriend and a younger brother in New Britain. According to his father’s testimony at trial, the victim loved motor vehicles, built model cars, read books about cars, helped his father work on cars, visited race tracks and talked constantly about cars. Additionally, the victim loved motorcycles and raced his own motorcycles in various events in the amateur class. According to his father, the victim first met the defendant in the summer of 1993, when he stopped at the defendant’s automobile repair and restoration business, called Valley Enterprises, located in New Britain. He and the defendant began to spend time together, sharing what the victim’s father believed was a love of cars.

In 1995, the victim stole his father’s truck, which he drove to another location in New Britain, where he stole another vehicle and thereafter drove to Delaware. Following the receipt of a telephone call from the police in Wilmington, Delaware, the victim’s father retrieved the victim and thereafter imposed certain restrictions on his freedom. As a further consequence of the victim’s behavior, his father started recording his telephone conversations. After hearing conversations between the defendant and the victim containing abbreviations that he thought were spoken in some sort of code, the victim’s father approached the victim in an effort to learn what the victim and the defendant had been saying to one another. Thereafter, during a counseling session with a psychologist that the victim and his father had started seeing sometime in late 1994 or early 1995, the victim’s father first learned that the victim had been having sexual relations with the defendant. He also learned that the defendant had exhibited bizarre behavior involving the victim’s hair and that, among other things, the defendant enjoyed giving the victim haircuts while engaging in sexual activity. The victim’s father contacted an attorney, and thereafter brought the victim to the Berlin police department, where the victim was interviewed by the police. Sometime thereafter, the victim, through his father, commenced a civil action against the defendant based on the alleged conduct of the defendant involved herein. Although the victim’s father testified that he had no prior knowledge of the sexual activities in which his son and the defendant had engaged, he had been aware, even before allowing his son to go on an unchaperoned trip with the defendant to Vermont, that the defendant was a forty-three year old male who liked to cut his son’s hair and whom the father believed was a pedophile.

The victim testified at trial that soon after he had met the defendant, he began visiting him at work several times a week. The victim’s father traveled frequently due to business and the victim enjoyed watching the defendant work on the cars. The victim related how the defendant took him to his home, ostensibly to show him model cars, and that while there, the defendant persuaded him to view the “Dirty Dozen,” a pornographic videotape, and to masturbate. The victim testified that initially, he did not consider that he was doing anything improper. He described other videotapes the defendant had that depicted bestiality and children having sex with other children, and noted the defendant’s obsession with cutting hair. The victim identified a written contract, which he and the defendant had executed, that allowed the defendant to have full control over the victim’s hair in exchange for a promise by the defendant to sell the victim, at cost, a Ford Mustang when he turned sixteen years of age. According to the victim, they engaged in oral sex on several occasions, and frequently, the defendant gave the victim money and model cars in exchange for sex. On one occasion, the defendant’s greyhound dog was involved. Although each time the defendant invited him to his home the victim expected that they would engage in sexual activity, he, nevertheless, accompanied the defendant because he felt that the defendant controlled him.

Thomas Hodolitz, the police officer to whom the victim first reported the events leading to the defendant’s arrest, described the victim as reluctant. Additionally, the victim’s first statement to police on April 18, 1995, although long, was incomplete. Consequently, the victim returned to the police station two days later to provide additional information. On the same evening that the first statement was given, the Berlin police executed a warrant to search the defendant’s home, resulting in the seizure of, among other things, a pornographic videotape entitled the “Dirty Dozen,” thirteen other videotapes, including tapes depicting child pornography, an adult magazine, several locks of hair, a memo book, some haircutting tools, pliers, tweezers and a bag of fireworks.

Bruce Freedman, a clinical psychologist, testified for the state at trial in general terms about children who have been victimized sexually. According to Freedman, most are reluctant to disclose the abuse, and such reticence is particularly prevalent when the abuser is an adult of the same sex as the child. He concluded that the detail provided by the victim in his statements to the police was “consistent with a true report of the child’s sexual abuse.”

Largely through cross-examination of the victim, his father and Hodolitz, the defendant painted a picture of the victim as a troubled young man, whose problems began long before his involvement with the defendant. The victim’s parents had separated when he was just one year old, and he lived with his mother for twelve years. For a period of six years, the victim and his father had no contact. Shortly before the victim’s involvement with the defendant, the victim allegedly had been physically abused by his mother’s boyfriend, who lived with the victim and his mother. As a result of those allegations, an investigation by the state department of children and families was conducted and the victim’s father sought a change in his son’s custody. Unfortunately, the victim had significant troubles in school, which ultimately led his father to remove him from school and to “home school” him. At one point, the victim stole two vehicles in an effort to run away from home. When he was apprehended in Delaware, the victim told the police that he had fled because his father was forcing him to work for free, an explanation he later denied having given. Nevertheless, despite these problems and despite the allegations of the defendant’s sexual abuse of the victim, the victim’s father chose to discontinue his son’s counseling shortly after they reported the alleged abuse to the police. Finally, it was disclosed that at the time of trial, the victim had burglary and criminal mischief charges pending against him in Meriden, and robbery, burglary and assault charges pending against him in Bantam.

The defendant testified that he began working at a garage when he was twelve years of age. He loved cars and was an avid collector of car models and memorabilia. During his testimony, he identified a variety of cutting implements that he used in connection with his work on car models. He also cut hair, a hobby he had enjoyed for thirty years. The defendant kept a book containing an extensive list of names of people for whom he regularly cut hair. He cut hair for men only and their ages ranged from thirteen to fifty. He also colored hair for people and explained that the hair samples seized by the police had come from people whose hair he had lightened.

The defendant related that the first time the victim came to his shop was in the summer of 1993. Thereafter, he came by sporadically, for a glass of water or to watch the mechanics work. In the late summer of 1993, the victim and a friend were chased off the defendant’s property by a coworker because the boys had been rummaging through the cars parked there. The defendant did not see the victim again until June, 1994, when he started to come around occasionally, either riding his bicycle or driving a red Saab automobile or a white Ranger pickup truck. Because he had seen the victim driving these vehicles, the defendant assumed the victim was older than he actually was.

Thereafter, in September, 1994, the victim came to the defendant’s house to get a haircut. In his testimony, the defendant denied that any sexual contact had occurred at that time. Rather, he claimed that he only had cut the victim’s hair as requested. During the fall of 1994, the victim began to come to the defendant’s shop more frequently, asking to help out. This pattern of behavior continued until the early part of 1995. The defendant testified that he found the victim to be an irritant. The defendant also explained that the contract about which the victim had testified was something instigated by the victim, who desperately wanted a Mustang, and that he had told the victim to “write what you want” in the contract.

The defendant testified that the victim seemed to be sexually knowledgeable, bragging that he had seen his girlfriend nude, and that the victim knew lyrics to a song entitled “Detachable Penis.” The defendant related that in February, 1995, the victim came to his home for a haircut, and that while the defendant was out walking his dog, the victim began to watch a pornographic movie entitled the “Dirty Dozen,” a movie loaned to the defendant by an elderly friend, whom he identified by name. The defendant testified that he never told the victim about the movie; nor had he ever watched it with him. The defendant had borrowed a few such videotapes from his friend, along with some magazines, but never possessed any videotapes depicting bestiality or child pornography. The defendant explained some of the abbreviations the jury had heard on the tape-recorded telephone conversations between him and the victim, ascribing an innocent interpretation to each one. Finally, the defendant testified that the fireworks found by the police had been purchased by him for his twenty-nine year old niece, whom he also identified by name.

John H. Felber, a psychiatrist, testified for the defendant regarding typical behavior that is exhibited by an adult homosexual pedophile. According to Felber, such a person is a predator, who is eager to obtain many victims. Felber also testified that a person who has a hair fetish is fixated on hair and that hair is the object of that person’s affections. He concluded that there was no correlation between pedophilia and fetishes, and opined that there was no correlation between pedophilia and bestiality. Finally, Felber testified that, based on his experience, three factors might induce a person to lie about having been sexually abused: money; vengeance; and a child custody dispute. George Higgins, a clinical psychologist, testified that in his private practice he had treated approximately 1000 homosexuals, some of whom were pedophiles. On the basis of his experience, Higgins opined that some teenagers make false allegations of sexual abuse for a variety of reasons. The most common reason for these false allegations relates to the family structure, and the occurrences are more prevalent in “dysfunctional families.”

After his last witness, the defendant once again sought access to the victim’s school records. As noted previously; see footnote 3 of this opinion; the trial court did not consider it necessary to revisit the pretrial ruling by Judge Scheinblum precluding disclosure of the records and accordingly denied the defendant’s request for disclosure.

Following the defendant’s conviction of four of the six counts charged; see footnote 1 of this opinion; and pursuant to a motion for production made in connection with the civil action brought by the victim against the defendant alleging sexual abuse, the defendant sought and received access to the victim’s school records, including a January, 1994 report from James C. Black, a psychiatrist, and a November, 1993 psychological evaluation by Cynthia Rutledge, the victim’s school psychologist. The defendant appealed from the judgment of conviction in his criminal action to the Appellate Court, which determined that the decision of Judge Cutsumpas denying the defendant access to the records was proper. State v. Slimskey, supra, 59 Conn. App. 346. This appeal followed.

II

A criminal defendant has a constitutional right to cross-examine the state’s witnesses, which may include impeaching or discrediting them by attempting to reveal to the jury the witnesses’ biases, prejudices or ulterior motives, or facts bearing on the witnesses’ reliability, credibility, or sense of perception. Delaware v. Fensterer, 474 U.S. 15, 19, 106 S. Ct. 292, 88 L. Ed. 2d 15 (1985); Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Storlazzi, 191 Conn. 453, 457, 464 A.2d 829 (1983). Thus, in some instances, otherwise privileged records, like the ones in this case, must give way to a criminal defendant’s constitutional right to reveal to the jury facts about a witness’ mental condition that may reasonably affect that witness’ credibility. State v. Hufford, 205 Conn. 386, 401-402, 533 A.2d 866 (1987); State v. Pierson, 201 Conn. 211, 227, 514 A.2d 724 (1986), on appeal after remand, 208 Conn. 683, 546 A.2d 286 (1988), cert. denied, 489 U.S. 1016, 109 S. Ct. 1131, 103 L. Ed. 2d 193 (1989).

The defendant in the present case does not argue that his right to confrontation under the sixth amendment to the United States constitution was violated by the trial court’s denial of access to the victim’s school records merely because he was precluded from inquiring into the victim’s troubled youth. He recognizes that the right to cross-examine witnesses “does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony.” (Emphasis added.) Pennsylvania v. Ritchie, 480 U.S. 39, 53, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987). The defendant concedes that the confrontation clause guarantees “ ‘an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish’ ”; id., quoting Delaware v. Fensterer, supra, 474 U.S. 20. Therefore, the defendant acknowledges that he was not entitled to an unlimited inspection of the victim’s school records in the hope of discovering material evidence. He claims, however, that he has a legitimate interest in access to records bearing on the testimonial reliability of the victim at or around the time of trial, or of the occurrence about which he is to testify, and that he was entitled to access to the victim’s school records, in particular the reports compiled by Black and Rutledge. We agree.

The need to balance a witness’ statutory privilege to keep psychiatric records confidential against a defendant’s rights under the confrontation clause is well recognized. See, e.g., State v. Herring, 210 Conn. 78, 108-109, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989). The test and the associated burdens imposed on a defendant are equally well chronicled. “If, for the purposes of cross-examination, a defendant believes that certain privileged records would disclose information especially probative of a witness’ ability to comprehend, know or correctly relate the truth, he may, out of the jury’s presence, attempt to make a preliminary showing that there is a reasonable ground to believe that the failure to produce the records would likely impair his right to impeach the witness. ... If in the trial court’s judgment the defendant successfully makes this showing, the state must then obtain the witness’ permission for the court to inspect the records in camera. A witness’ refusal to consent to such an in camera inspection entitles the defendant to have the witness’ testimony stricken. . . .

“Upon inspecting the records in camera, the trial court must determine whether the records are especially probative of the witness’ capacity to relate the truth or to observe, recollect and narrate relevant occurrences. ... If the court determines that the records are probative, the state must obtain the witness’ further waiver of his privilege concerning the relevant portions of the records for release to the defendant, or have the witness’ testimony stricken. If the court discovers no probative and impeaching material, the entire record of the proceeding must be sealed and preserved for possible appellate review. . . . Once the trial court has made its inspection, the court’s determination of a defendant’s access to the witness’ records lies in the court’s sound discretion, which we will not disturb unless abused.” (Internal quotation marks omitted.) State v. McMurray, 217 Conn. 243, 257-58, 585 A.2d 677 (1991).

“Access to confidential records should be left to the discretion of the trial court which is better able to assess the probative value of such evidence as it relates to the particular case before it . . . and to weigh that value against the interest in confidentiality of the records.” (Internal quotation marks omitted.) State v. Harris, 227 Conn. 751, 762, 631 A.2d 309 (1993). “[T]he linchpin of the determination of the defendant’s access to the records is whether they sufficiently disclose material especially probative of the ability to comprehend, know and correctly relate the truth ... so as to justify breach of their confidentiality and disclosing them to the defendant in order to protect his right of confrontation.” (Citation omitted; internal quotation marks omitted.) State v. Kelly, 208 Conn. 365, 379, 545 A.2d 1048 (1988).

The defendant claims that, in the course of this court’s in camera inspection of the records, we will discover that they contained material evidence relating directly to the victim’s ability to comprehend, know or correctly relate the truth. Therefore, he contends that we must conclude that the trial court failed to discharge its duty to disclose that evidence to him. See State v. Storlazzi, supra, 191 Conn. 461.

Our review of the victim’s school records, viewed in conjunction with the entire trial transcript, convinces us that portions of the Black and Rutledge reports directly relate to his credibility and could have created a reasonable doubt of the defendant’s guilt. Rutledge stated in her report that the victim “is prone to distort his perception of reality with paranoid and persecutoria! ideas.” Black’s report contained a reference gathered from his meeting with Rutledge that the victim had “concocted a story about being victimized.” When the victim was suspended for bringing a plastic cap gun and ammunition to school, he claimed that they belonged to another student and that he had been “framed,” despite the fact that the evidence indicated that he was responsible. Black described numerous episodes of the victim acting out in sexually inappropriate ways and then fabricating stories to exonerate himself, including incidents in which he exposed himself to a particular female student, whom he had followed home and into whose home he had attempted, uninvited, to gain entry; exposed himself in class; urinated in the hallway at school; and followed girls to the bathroom. When questioned about the episode involving the female student he had followed home, the victim falsely stated that it was another student who had carried out the actions.

By engaging in a review of the records, a specific procedure designed to accommodate the inherent tension between the defendant’s rights of confrontation and the victim’s right to confidentiality, we conclude that the trial court should have disclosed those portions of the records that we have referenced, and that its failure to do so constituted an abuse of discretion. Although the determination whether to disclose the records, in whole or in part, rests, in the first instance, within the trial court’s discretion, our assessment of the trial court’s decision to restrict the defendant’s access to the witness’ confidential records must, however, take into account the recognized principle that such a restriction “implicates the defendant’s constitutional right to impeach and discredit state witnesses.” (Internal quotation marks omitted.) State v. Bruno, 236 Conn. 514, 532, 673 A.2d 1117 (1996). Whether this type of impropriety warrants a new trial may depend on whether the defendant must demonstrate that it was more probable than not that the impropriety affected the result of the trial; State v. Pinnock, 220 Conn. 765, 786, 601 A.2d 521 (1992); or whether the state must demonstrate harmlessness beyond a reasonable doubt. State v. Aponte, 249 Conn. 735, 753, 738 A.2d 117 (1999).

Although the confrontation right is not absolute and is subject to reasonable limitation; State v. Vitale, 197 Conn. 396, 401, 497 A.2d 956 (1985); there is, nevertheless, a minimum level of cross-examination that must be afforded to the defendant into matters affecting the reliability and credibility of the state’s witnesses. State v. Milum, 197 Conn. 602, 609, 500 A.2d 555 (1985). In the present case, the defendant was denied access to information compiled by trained professionals that was relevant to and probative of the victim’s ability to comprehend, to know and to relate the truth. As a consequence, the defendant had no opportunity to elicit evidence regarding the victim’s predilection for concocting stories about being victimized or his tendencies “to distort his perception of reality with paranoid and persecutorial ideas.” Having determined that the evidence in issue was especially probative and having concluded that there was no other available means of inquiry into the victim’s propensity to lie, we necessarily have concluded that the confrontation clause requires the disclosure. Therefore, we resolve the burden of proof issue against the state, which, accordingly must prove that the trial court’s decision denying the defendant access to portions of the reports was harmless beyond a reasonable doubt.

“The correct inquiry for identifying harmless constitutional error is to ask whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. . . . Whether such error is harmless in a particular case depends upon a number of factors, such as the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. . . . State v. Santiago, 224 Conn. 325, 333, 618 A.2d 32 (1992).” (Internal quotation marks omitted.) State v. Aponte, supra, 249 Conn. 753.

In this case, there was no physical evidencie that both corroborated the victim’s version and contradicted the defendant’s account of the events. The search of the defendant’s home resulted in the seizure of several hair-cutting implements, assorted pieces of human hair, a few pornographic videotape cassettes and a Hustler magazine. Those items corroborated some aspects of the victim’s testimony. They also corroborated, however, some aspects of the defendant’s testimony, and no physical evidence corroborated the essential elements of the alleged sexual conduct. In short, the only determination necessary was whether the alleged sexual activity occurred. The answer to that question turned on the credibility of the victim. Certainly, if his testimony had been discredited altogether, the jury properly could not have returned the same guilty verdicts. Cf. State v. Gonzales, 186 Conn. 426, 435, 441 A.2d 852 (1982). Therefore, on the present record, we cannot conclude that the trial court’s decision denying the defendant access to the records was harmless beyond a reasonable doubt.

The judgment of the Appellate Court is reversed in part and the case is remanded to that court with direction to reverse the judgment of the trial court with respect to the defendant’s convictions of sexual assault in the second degree and risk of injury to a child and to remand the case for a new trial on those counts.

In this opinion BORDEN and NORCOTT, Js., concurred.

VERTEFEUILLE, J.,

with whom SULLIVAN, C. J., joins, dissenting. I respectfully disagree with the majority’s application to the facts in this case of our established test to determine whether a defendant should be granted access to the psychological and/or psychiatric records of a witness. Particularly, I disagree with the majority’s conclusion that certain portions of reports compiled by James C. Black, a psychiatrist, and Cynthia Rutledge, the victim’s school psychologist, relate directly to the victim’s ability or capacity to comprehend, know and correctly relate the truth and therefore should have been disclosed to the defendant. Although I do agree that one comment from Rutledge’s report does relate to the victim’s ability to comprehend, know and correctly relate the truth, I conclude that the trial court’s failure to allow the defendant access to that comment was harmless. Because I would affirm the Appellate Court’s judgment affirming the trial court’s judgment of conviction, I therefore must dissent.

In State v. Storlazzi, 191 Conn. 453, 459, 464 A.2d 829 (1983), this court stated that “[t]he linchpin of the determination of the defendant’s access to the records is whether they sufficiently disclose material especially probative of the ability to comprehend, know and correctly relate the truth ... so as to justify breach of their confidentiality and disclosing them to the defendant in order to protect his right of confrontation. Access to records bearing on the mental unsound,ness of a witness (i.e., relating to a trait importing in itself a defective power of observation, recollection or communication), at or around the time of trial or of the occurrence about which he is to testify . . . should be granted to the defendant.” (Citations omitted; emphasis added; internal quotation marks omitted.)

I agree that the statement in Rutledge’s report that the victim “is prone to distort his perception of reality with paranoid and persecutorial ideas,” is “especially probative” of the victim’s ability to comprehend, know and correctly relate the truth and should have been disclosed to the defendant. I disagree, however, with the majority when it reaches the same conclusion with regard to comments found in Black’s report that disclose that: (1) the victim had “concocted a story about being victimized”; (2) the victim had lied that a gun and ammunition, which he had brought into school and subsequently was suspended for, belonged to another student and that he had been framed; and (3) the victim had lied to exculpate himself from numerous incidents of sexually inappropriate behavior.

With regard to these comments, I conclude that the trial court properly withheld these portions of the records from the defendant because they are not especially probative of the victim’s ability or capacity to comprehend, know and correctly relate the truth. See State v. Howard, 221 Conn. 447, 458, 604 A.2d 1294 (1992); State v. McMurray, 217 Conn. 243, 258-59, 585 A.2d 677 (1991). Rather, they describe incidents in the past when the victim had lied. I agree with the majority that these comments demonstrate that when the victim, a teenager, had put himself in a situation where he would be reprimanded or punished, he would lie to exonerate himself. Telling lies to exonerate oneself, however, is not an indication of an inability to comprehend, know and correctly relate the truth. Unfortunately, adolescents do sometimes tell lies in order to exonerate themselves.

None of these statements taken from the victim’s confidential records bear on the victim’s “ ‘mental unsoundness.’ ” See State v. Storlazzi, supra, 191 Conn. 459. They do not relate “to a trait importing in itself a defective power of observation, recollection or communication . . . .” (Internal quotation marks omitted.) Id. I therefore would conclude that, apart from the comment taken from Rutledge’s report, the trial court properly denied the defendant access to the victim’s psychiatric and psychological records.

I next consider whether the trial court’s improper withholding of the single comment from Rutledge’s report requires reversal of the defendant’s convictions for risk of injury to a child and sexual assault in the second degree. I agree with the majority that “the state . . . must prove that the trial court’s decision denying the defendant access to portions of the reports was harmless beyond a reasonable doubt.” “Whether such error is harmless in a particular case depends upon a number of factors, such as the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. . . . Most importantly, we must examine the impact of the evidence on the trier of fact and the result of the trial. . . . If the evidence may have had a tendency to influence the judgment of the jury, it cannot be considered harmless.” (Citations omitted; internal quotation marks omitted.) State v. Colton, 227 Conn. 231, 254, 630 A.2d 577 (1993), on appeal after remand, 234 Conn. 683, 663 A. 2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996).

I recognize, as the majority points out and the state concedes, that the testimony of the victim concerning the alleged sexual assault was not directly corroborated by other testimony. I conclude, however, that the overall strength of the state’s case and the extent of the cross-examination of the victim that was permitted by the trial court would have rendered the withholding of Rutledge’s single statement harmless beyond a reasonable doubt.

In his statements to the police and during his testimony at trial, the victim, although initially hesitant, gave a detailed account of the alleged sexual abuse by the defendant. The victim also correctly described the defendant’s home, including the defendant’s bedroom area, demonstrating that he had spent a considerable amount of time there. The victim also demonstrated an accurate memory of the defendant’s pornography collection, including pornographic videotapes and magazines. In particular, the victim described videotapes depicting bestiality and children having sex with other children. He also identified the videotape entitled the “Dirty Dozen” and described the contents of the film. The victim also had intimate knowledge of the defendant’s bizarre hair fetish and gave gruesome details about what the defendant had done with the victim’s hair. The victim also described with particularity the tools the defendant had used to “pull” the victim’s hair out.

Although there were no eyewitnesses to the alleged incidents of fellatio, to a large extent, the victim’s testimony was corroborated on material points by other evidence. The police, on the basis of the victim’s statement, had executed a warrant to search the defendant’s home. They found, among other things, several pornographic videotapes, including child pornography videotapes and the “Dirty Dozen” videotape, pornographic magazines, one of which was found on a table in the defendant’s living room, a bag nearly one-half filled with human hair, and haircutting tools. Furthermore, Bruce Freedman, a clinical psychologist, explained that the victim’s reluctance to give the police a statement and the details concerning the sexual abuse ultimately provided by the victim in his statements to the police were consistent with children who have been abused sexually. The prosecution’s case was strong.

Moreover, I am “convinced that nothing in the [psychiatric] records would have added weight to the defendant’s thorough cross-examination of [the victim] . . . .” State v. Howard, supra, 221 Conn. 458; State v. Crosswell, 223 Conn. 243, 270, 612 A.2d 1174 (1992). On the basis of my review of the record, the defendant thoroughly cross-examined the victim, eliciting various inconsistencies between the statements the victim had given to the police and his testimony during the trial. The defendant also elicited testimony from the victim that could have led the jury to believe that the victim’s father had pushed the victim to fabricate this story against the defendant so that the victim’s father could bring a civil action against the defendant. The victim’s father eventually did bring a civil action against the defendant, which was pending at the time of the criminal trial, and the defendant elicited this information from the victim. The defendant’s cross-examination also showed contradictions between the victim’s testimony and certain other evidence, reflecting on his truthfulness and his memory of the alleged events. Finally, the defendant elicited from the victim testimony concerning various criminal charges that were pending against the victim in other towns, further depicting the victim as a very troubled teenager. I do not believe that Rutledge’s statement that the victim was “prone to distort his perception of reality with paranoid and persecutoria! ideas” would have influenced the judgment of the jury.

On the basis of the overall strength of the state’s case and the leeway the trial court afforded the defendant during his cross-examination of the victim, I conclude that the trial court’s decision denying the defendant access to Rutledge’s single statement concerning the victim’s propensity to “distort his perception of reality with paranoid and persecutorial ideas” was harmless. I would affirm the defendant’s conviction and, therefore, I respectfully dissent

       The defendant had been charged in a six count amended information with: (1) risk of injury to a child in violation of General Statutes (Rev. to 1995) § 53-21 for having permitted the victim on diverse dates between 1991 and April, 1995, to view a sexually explicit videotape; (2) risk of injury to a child in violation of § 53-21 for having engaged in fellatio with the victim on or about January, 1995; (3) sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), for having engaged in fellatio with the victim on or about January, 1995; (4) risk of injury to a child in violation of § 53-21 for having engaged in fellatio with the victim on or about March, 1995; (5) sexual assault in tire second degree in violation of § 53a-71(a) (1) for having engaged in fellatio with the victim on or about March, 1995; and (6) possession of fireworks in violation of General Statutes (Rev. to 1995) § 29-357. He was convicted on the first, second, third and sixth counts.

       General Statutes (Rev. to 1995) § 53-21 provides: “Injury or risk of injury to, or impairing morals of, children. Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.” General Statutes § 53a-71 provides in relevant part: “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: (1) Such other person is thirteen years of age or older but under sixteen years of age and the actor is more than two years older than such person . . . .”
      General Statutes (Rev. to 1995) § 29-357 provides in relevant part: “Sale, use and possession of fireworks prohibited. Regulations concerning permits for display. Variations or exemptions. Penalty, (a) Except as provided in subsection (b) of this section, no person, firm or corporation shall offer for sale, expose for sale, sell at retail or use or explode or possess with intent to sell, use or explode any fireworks. . . .”

       As quoted in the Appellate Court, in denying the defendant’s motion Judge Cutsumpas stated: “ ‘Well, counsel, from what I understand from the in-chambers conference and from a review of the court file, the clerk’s file, your motion for an examination of these in camera records was vigorously pursued. I read this morning the twelve page brief, which your office had filed for that purpose. And Judge Scheinblum, from my examination of the file, apparently granted your motion for an in camera review and reviewed those records. And according to the transcript you handed to me, Judge Scheinblum said, and I quote: “And I made an in camera inspection, and I find nothing in there that would bear upon the witness’ ability to be truthful. His ability to recant the allegations and, accordingly, it will go no further.” And so your in camera review was granted, counsel.
      “I am also concerned that the state would be somewhat prejudiced at this stage if I overturned Judge Scheinblum’s order even if I had authority to do so on the basis that they prepared their case without the benefit of these records. ... I suspect that the state had the same kind of concerns. So, counsel, I am going to deny your request. If you wish to put the witness on with something new, I would be happy to entertain it. If not, I am denying your request.’ ” State v. Slimskey, supra, 59 Conn. App. 345 n.2.

       In his appeal to the Appellate Court, the defendant additionally claimed that Judge Cutsumpas had abused his discretion in failing to review the records in light of the evidence introduced at trial. The Appellate Court reviewed the records and determined that the defendant had suffered no prejudice resulting from the court’s refusal to review them a second time. State v. Slimskey, supra, 59 Conn. App. 346 n.3.

       The victim had told his father, the police and the trial court that despite the written contract requiring him to pay for the car, the defendant had actually promised to give it to him for free.

       The motion seeking production of the victim’s school records in the civil action, filed pursuant to General Statutes § 52-1461' (5), was argued on May 11, 1998, following depositions of the victim and his father, at which the defendant learned that the victim had had disciplinary problems at school that required him to be seen by a psychologist and a psychiatrist. As part of its decision to provide these records to the defendant, the trial court, Graham, J., restricted the defendant’s use of the records to the civil proceeding and thereby barred him from using them as a basis upon which to seek a new trial in the criminal action.

       As we stated in State v. Herring, supra, 210 Conn. 108, “[t]his court has previously undertaken the task of balancing a witness’ psychiatric privilege against a defendant’s right of confrontation. See State v. Hufford, [supra, 205 Conn. 400-405]; State v. Pierson, [supra, 201 Conn. 225-28]; 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, [supra, 191 Conn. 455-63].”

       In the present case, the defendant’s confrontation rights were initially protected by the trial court’s screening of the confidential records.

       We reaffirm that the in camera approach represents the most effective and sensitive balance between the interests of the criminal defendant and private citizens who expect and rely on the confidentiality of their psychiatric records and communications. A criminal defendant does not have a right “to conduct a general fishing expedition” into a witness’ privileged records. (Internal quotation marks omitted.) State v. Januszewski, 182 Conn. 142, 172, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). As we stated in State v. Pratt, 235 Conn. 595, 611, 669 A.2d 562 (1995), “in camera judicial review of a victim’s privileged records currently represents the most common method of balancing statutory privileges against the defendant’s trial rights. See, e.g., Jordan v. State, 607 So. 2d 333, 335 (Ala. Crim. App. 1992); Gunter v. State, 313 Ark. 504, 512-13, 857 S.W.2d 156 (1993); People v. District Court, 743 P.2d 432, 436 (Colo. 1987); People v. Foggy, 121 Ill. 2d 337, 349-50, 521 N.E.2d 86 (1988); Goldsmith v. State, 337 Md. 112, 133-35, 651 A.2d 866 (1995); Commonwealth v. Bishop, 416 Mass. 169, 179-80, 617 N.E.2d 990 (1993); People v. Stanaway, 446 Mich. 643, 678-79, 521 N.W.2d 557 (1994); State v. Cressy, 137 N.H. 402, 413, 628 A.2d 696 (1993); State v. Kalakosky, 121 Wash. 2d 525, 550, 852 P.2d 1064 (1993).”

       We note that the state correctly assumed this burden of proof in its brief.

       The jury found the defendant guilty based upon its belief in the victim’s testimony as it related to the pornographic videotape and the January, 1995 sexual conduct, but it rejected his testimony regarding the March, 1995 incident. See footnote 1 of this opinion. Although generally, we avoid reading too much into a jury’s verdict, in this instance, as it relates to the issue of harm, it is hard to overlook.


source: Caselaw Access Project

author: ZARELLA, J.

license: Public Domain

text:
    UNION CARBIDE CORPORATION v. CITY OF DANBURY
    (SC 16456)
    Norcott, Katz, Palmer, Vertefeuille and Zarella, Js.

      Argued March 20
    officially released September 4, 2001

      ElliottB. Pollack, with whom was Marjorie S. Wilder, for the appellant (plaintiff).

      Daniel E. Casagrande, with whom, on the brief, was Kim E. Nolan, for the appellee (defendant).
   Opinion

ZARELLA, J.

This is a tax appeal from the determination by the defendant, the city of Danbury, of the fair market value of certain of the plaintiffs real property, as of October 1,1987. The plaintiff, Union Carbide Corporation, appealed to the defendant’s board of assessment appeals (board) from the valuation of its property as of October 1,1987. The board dismissed that appeal, and the plaintiff appealed to the trial court pursuant to General Statutes § 12-117a. The trial court rendered judgment dismissing the appeal, from which the plaintiff appealed to the Appellate Court. We transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

The plaintiff claims, inter alia, that the trial court improperly: (1) relied on an agreement between the plaintiff and a real estate assessment firm hired by the defendant as to the value of the plaintiffs property; (2) accorded presumptive validity to the defendant’s assessment; (3) relied on sale-leaseback market evidence to determine the value of the plaintiffs property; and (4) ruled on the admissibility of certain evidence. Because we conclude that the trial court properly determined that the plaintiff was estopped from seeking a reduction in the valuation of its property, it is not necessary to reach the remaining issues raised by the plaintiffs appeal. We, therefore, affirm the judgment of the trial court.

The property at issue in this case, which is located at 39 Old Ridgebmy Road in Danbury, consists of a 1,308,721 square foot corporate headquarters building (building) and a 99.5 acre parcel of land on which the building is located. The building and 99.5 acre parcel are surrounded by 546 acres of undeveloped land.

The defendant conducted a revaluation of the plaintiffs property in 1987, and, on October 1, 1987, the building was valued at approximately $294,827,400 and the 99.5 acre parcel of land and a substantial portion of the undeveloped land, comprising a total of 626 acres, were valued at approximately $51,231,000, for a total valuation of approximately $346,058,400. The defendant’s grand list of October 1,1988, separated the undeveloped land from the building and the 99.5 acre parcel, and placed the value of the building and 99.5 acre parcel at $306,803,857. Pursuant to General Statutes (Rev. to 1987) § 12-62a (b), the building and 99.5 acre parcel were assessed at a rate of 70 percent of that value, bringing the assessed value to about $214,762,700.

The defendant retained the firm of Cole, Layer and Trumbull (firm) to assist in the 1987 revaluation. Harold J. Maddocks, a senior commercial and industrial appraiser with the firm, supervised the revaluation. At the time of the revaluation, Maddocks had more than thirty years experience in the fields of assessment and appraisal, including the appraisal of facilities of large corporate headquarters.

At an October 22, 1987 meeting involving, among others, Maddocks and David Keating, the plaintiffs director of general services and manager of taxes, Mad-docks and Keating agreed on a fair market value of between $350,000,000 and $355,000,000 for the building, 99.5 acre parcel and surrounding undeveloped land. Maddocks figured that his calculation would result in an annual tax savings of approximately $600,000 for the plaintiff.

Maddocks testified that, as a result of this agreement, Maddocks expressed to Keating that he would submit a figure of between $350,000,000 and $355,000,000 to the defendant for assessment purposes provided that the plaintiff understood, inter alia, that the agreed upon value would remain in effect throughout the period covered by the October 1, 1987 revaluation.

Maddocks was succeeded by Daniel Thomas in November, 1987, who issued an assessment notice to the plaintiff that allegedly set the value of the plaintiffs property higher than the value agreed upon by Mad-docks and Keating at the October 22, 1987 meeting. After Keating contacted Thomas in December, 1987, about the discrepancy and informed Thomas about his prior agreement with Maddocks, Thomas agreed to reduce the value of the plaintiff’s property by approximately $10,000,000 for assessment purposes.

Before considering the merits of the parties’ arguments, we set forth the basic legal principles and standard of review applicable to this appeal. “[I]n Ireland v. Wethersfield, 242 Conn. 550, 698 A.2d 888 (1997), we [set forth] the legal tenets governing tax appeals brought pursuant to § 12-117a .... [T]he trial court tries the matter de novo and the ultimate question is the ascertainment of the true and actual value of the [taxpayer’s] property. ... At the de novo proceeding, the taxpayer bears the burden of establishing that the assessor has overassessed its property. . . . The trier of fact must arrive at his own conclusions as to the value of [the taxpayer’s property] by weighing the opinion of the appraisers, the claims of the parties in light of all the circumstances in evidence bearing on value, and his own general knowledge of the elements going to establish value. ... If the trial court finds that the taxpayer has failed to meet his burden because, for example, the court finds unpersuasive the method of valuation espoused by the taxpayer’s appraiser, the trial court may render judgment for the town on that basis alone. ... A taxpayer . . . who fails to carry [the burden of establishing overvaluation] has no right to complain if the trial court accords controlling weight to the assessor’s valuation of his property.” (Citations omitted; internal quotation marks omitted.) Torres v. Waterbury, 249 Conn. 110, 117-18, 733 A.2d 817 (1999), quoting Ireland v. Wethersfield, supra, 556-59.

An appellate court’s review of a trial court’s decision is circumscribed by the appropriate standard of review. “The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) DeSena v. Waterbury, 249 Conn. 63, 72-73, 731 A.2d 733 (1999).

On the basis of the agreement between Keating and Maddocks, the defendant asserted, as a special defense, that the plaintiff was estopped from seeking a reduction in the October 1, 1987 valuation of the plaintiffs property. In its articulation, the trial court found the following facts regarding this special defense: “The action taken and the words spoken by the [plaintiff] are found in the meeting between Maddocks on behalf of the [defendant], and . . . Keating representing [the plaintiff], on October 22, 1987. That meeting included a discussion of what Maddocks had found to that date and general data about the property freely and willingly provided by [the plaintiff]. As a result of that meeting, an agreement was reached between Maddocks and Keating [that set the fair market value of the building, 99.5 acre parcel and undeveloped land at between $350,000,000 and $355,000,000]. That agreement produced an annual tax savings of . . . $600,000 . . . for [the plaintiff].

“After Maddocks was discharged by [the firm] . . . Thomas assumed his duties in November of 1987. He sent an assessment notice to [the plaintiff], which generated a complaint from Keating mid-December that year that the valuation set forth in [the] notice from Thomas was higher than the parties had agreed to in October of that year. Thomas, on behalf of the [defendant and] in reliance upon that agreement, reduced the [amount stated in the] assessment notice by . . . $10,000,000 .... [The plaintiffs] attempts to refute the claimed agreement were exposed as false when Keating was presented with a document which indeed referred to the existence of that agreement. Keating’s own hand lent credence to the [defendant’s] claim of such an agreement and completely and thoroughly nullified [the plaintiffs] position that there was no such contract.”

The plaintiff claims that the trial court improperly determined that the defendant had established its special defense of estoppel. We disagree.

Our jurisprudence regarding the doctrine of equitable estoppel is well established. In Canfield v. Gregory, 66 Conn. 9, 33 A. 536 (1895), this court stated: “The modem estoppel in pais is of equitable origin, though of equal application in courts of law. It is much more than a rule of evidence. It establishes rights: it determines remedies. An equitable estoppel does not so much shut out the truth as let in the truth, and the whole truth. Its office is not to support some strict mle of law, but to show what equity and good conscience require, under the particular circumstances of the case, irrespective of what might otherwise be the legal rights of the parties.” Id., 17.

“Estoppel has its roots in equity and stems from the voluntary conduct of a party whereby [the party] is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed ... as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse. 3 Pomeroy, Equity Jurisprudence (5th Ed. 1941) § 804, p. 189; 28 Am. Jur. 2d, Estoppel and Waiver § 76; accord Spear-Newman, Inc. v. Modem Floors Corporation, 149 Conn. 88, 91, 175 A.2d 565 (1961); Tradesmens National Bank of New Haven v. Minor, 122 Conn. 419, 424, 190 A. 270 (1937); MacKay v. Aetna Life Ins. Co., 118 Conn. 538, 548, 173 A. 783 (1934).” (Internal quotation marks omitted.) Boyce v. Allstate Ins. Co., 236 Conn. 375, 383-84, 673 A.2d 77 (1996).

“We [have] recognized that estoppel always requires proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury. Bozzi v. Bozzi, 177 Conn. 232, 242, 413 A.2d 834 (1979); Dupuis v. Submarine Base Credit Union, Inc., 170 Conn. 344, 353, 365 A.2d 1093 (1976); Pet Care Products, Inc. v. Barnett, 150 Conn. 42, 53-54, 184 A.2d 797 (1962).” (Internal quotation marks omitted.) Boyce v. Allstate Ins. Co., supra, 236 Conn. 385.

We conclude that the trial court properly determined that Keating’s statements induced Thomas to believe that his predecessor, Maddocks, and Keating had agreed upon a value of the plaintiffs property that was lower than the value Thomas had established in the assessment notice that he issued to the plaintiff. Consequently, Thomas, acting on behalf of the defendant, changed his position to the defendant’s detriment by reducing the value of the plaintiffs property in accordance with Keating’s representations concerning the agreement, thereby reducing the amount of revenue that the defendant would derive from an assessment on the plaintiffs property. We conclude, therefore, that the plaintiff is estopped from proving that the defendant’s valuation of its property is unjust. Because the plaintiff cannot prove that the valuation is unjust, the trial court properly refused to adjust the value. See, e.g., Gorin’s, Inc. v. Board of Tax Review, 178 Conn. 606, 608, 424 A.2d 282 (1979) (“[o]nly when the court finds that the action of the board [of tax review] will result in the payment of an unjust and, therefore, illegal tax, can the court proceed to exercise its broad discretionary power to grant such relief as is appropriate”).

The plaintiff, relying on the doctrine of promissory estoppel, argues that, in the absence of a “ ‘clear and definite promise’ ” between the parties that reasonably could have been expected to induce reliance, it is not estopped from appealing the October 1,1987 valuation. The plaintiff further argues that there is insufficient evidence to support a finding of estoppel.

The plaintiff has misconstrued the trial court’s decision. The trial court, in its articulation, concluded: “This court is thoroughly satisfied and finds that the [defendant], in accordance with the credible evidence [it has] offered . . . has indeed established that special defense of estoppel which it pleaded.” (Emphasis added.) The defendant alleged, with respect to its special defense of estoppel, that “[t]he plaintiff is . . . estopped from requiring the defendant in effect to reduce the October 1, 1987 valuation of its property.” The defendant did not challenge the plaintiffs right to appeal but, rather, the plaintiffs right to obtain a reduction in the valuation to which the plaintiff had agreed. The trial court concluded, and we agree, that the plaintiff did not waive its right to appeal. For example, if any structures on its property were to become damaged after the valuation, the plaintiff could appeal the valuation on the basis of General Statutes § 12-64a. See DeSena v. Waterbury, supra, 249 Conn. 87.

We also disagree with the plaintiffs contention that the evidence was insufficient to support the trial court’s conclusion that the defendant established its special defense of equitable estoppel. The trial court found that Keating and Maddocks had met and agreed orally to a certain value for the plaintiffs property. Keating’s notes and testimony regarding the meeting confirm both that an agreement was reached and the substance of that agreement. The trial court found that, after Keating received the assessment notice from Thomas, which reflected a value of approximately $362,000,000 instead of the agreed upon value of between $350,000,000 and $355,000,000, he attempted to call Maddocks. Instead of reaching Maddocks, who no longer worked for the firm, Keating spoke with Thomas, who was unaware of the agreement between Keating and Maddocks. In reliance upon Keating’s representation about the agreement, Thomas advised Keating that the revised assessment notice would reflect a value of approximately $352,000,000, which is $10,000,000 less than the value reflected in the original assessment notice. We, therefore, conclude that the evidence is sufficient to support the trial court’s conclusion that the defendant had established its special defense of equitable estoppel. Accordingly, we conclude that the trial court properly dismissed the plaintiffs appeal.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 12-117a provides: “Any person, including any lessee of real property whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, claiming to be aggrieved by the action of the board of tax review or the board of assessment appeals, as the case may be, in any town or city may, within two months from the date of the mailing of notice of such action, make application, in the nature of an appeal therefrom, with respect to the assessment list for the assessment year commencing October 1, 1989, October 1, 1990, October 1, 1991, October 1,1992, October 1, 1993, October 1, 1994, or October 1, 1995, and with respect to the assessment list for assessment years thereafter, to the superior court for the judicial district in which such town or city is situated, which shall be accompanied by a citation to such town or city to appear before said court. Such citation shall be signed by the same authority and such appeal shall be returnable at the same time and served and returned in the same manner as is required in case of a summons in a civil action. The authority issuing the citation shall take from the applicant a bond or recognizance to such town or city, with surety, to prosecute the application to effect and to comply with and conform to the orders and decrees of the court in the premises. Any such application shall be a preferred case, to be heard, unless good cause appears to the contrary, at the first session, by the court or by a committee appointed by the court. The pendency of such application shall not suspend an action by such town or city to collect not more than seventy-five per cent of the tax so assessed or not more than ninety per cent of such tax with respect to any real property for which the assessed value is five hundred thousand dollars or more, and upon which such appeal is taken. If, during the pendency of such appeal, a new assessment year begins, the applicant may amend his application as to any matter therein, including an appeal for such new year, which is affected by the inception of such new year and such applicant need not appear before the board of tax review or board of assessment appeals, as the case may be, to make such amendment effective. The court shall have power to grant such relief as to justice and equity appertains, upon such terms and in such manner and form as appear equitable, and, if the application appears to have been made without probable cause, may tax double or triple costs, as the case appears to demand; and, upon all such applications, costs may be taxed at the discretion of the court. If the assessment made by the board of tax review or board of assessment appeals, as the case may be, is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes, together with interest and any costs awarded by the court, or, at the applicant’s option, shall be granted a tax credit for such overpayment, interest and any costs awarded by the court. Upon motion, said court shall, in event of such overpayment, enter judgment in favor of such applicant and against such city or town for the whole amount of such overpayment, together with interest and any costs awarded by the court. The amount to which the assessment is so reduced shall be the assessed value of such property on the grand lists for succeeding years until the tax assessor finds that the value of the applicant’s property has increased or decreased.”

       The plaintiffs reliance on the doctrine of promissory estoppel is misplaced. Under the doctrine of equitable estoppel, as opposed to the doctrine of promissory estoppel, proof of a clear and definite promise is unnecessary. In re David, W., 52 Conn. App. 576, 586, 727 A.2d 264 (1999), rev’d on other grounds, 254 Conn. 676, 759 A.2d 89 (2000) (“[t]he absence of a clear and definite promise [does] not preclude application of the doctrine of equitable estoppel”); see also 28 Am. Jur. 2d 465, Estoppel and Waiver § 35 (2d Ed. 2000) (“[promissory estoppel involves a clear and definite promise, while equitable estoppel involves only representations and inducements”). For purposes of our analysis in this case, we view the doctrine of equitable estoppel as the only applicable doctrine.

       General Statutes § 12-64a provides: “Reduction in assessed value of real estate upon removal of damaged buildings. Municipal option to abate tax on personal property located in damaged building, (a) Whenever a building is so damaged as to require total reconstruction before it may be used for any purpose related to its use prior to such damage and following which, the owner provides for complete demolition of such building with the material from demolition being removed from the parcel of real property on which the building was situated or used as till on such parcel for purposes of grading, such parcel shall be assessed for purposes of property tax as of the date such demolition, removal and grading are completed, to the satisfaction of the building inspector in the municipality, and such assessment shall reflect a determination of the assessed value of such parcel, exclusive of the value of the building so damaged, demolished and removed. The adjusted assessment shall be applicable with respect to such parcel from the date demolition, removal and grading are completed, as determined by said building inspector, until the first day of October next succeeding and the amount of property tax payable with respect to such parcel for the assessment year in which demolition, removal and grading are completed shall be adjusted accordingly in such manner as determined by the assessor.
      “(b) Notwithstanding ihe provisions of subsection (a) of this section, in the case of a building that sustains fire or weather-related damage that requires the building to be totally reconstructed before it may be used for any purpose related to its use prior to the damage, the assessment reduction shall be calculated from the date of such fire or weather event if the owner, within one hundred twenty days of the fire or weather event, provides for complete demolition of such building with the material from demolition being removed from the parcel of real property on which the building was situated and the parcel graded to the satisfaction of the building inspector in the municipality. If the fire or weather event occurs not more than one hundred twenty days before the next assessment date and the owner provides for such complete demolition, removal and grading to the satisfaction of the building inspector after the next assessment date and not more than one hundred twenty days after the fire or weather event, the assessment for the damaged building shall be removed for such next assessment date.
      “(c) When a municipality reduces an assessment for a building pursuant to subsection (a) or (b) of this section, the municipality may, by vote of its legislative body, or in a municipality where the legislative body is a town meeting, by vote of the board of selectmen, abate all or a portion of the property tax with respect to personal property that had been located in the building. Such abatement may be allowed if the personal property was damaged as a direct result of a fire or weather event to such an extent that the property cannot be used for any purpose related to its use prior to such fire or weather event. Any abatement provided under this subsection shall be applicable with respect to such personal property from the date of the damage to the following October first.”

       One of the defendant’s exhibits included Keating’s notes from October, 1987. One entry states “project [assessment] in the 350-355 [million] range.” That exhibit also included Keating’s notes from December, 1987, regarding his discussions with Thomas. Those notes provide in relevant part: “Telephone] Call to United Appraisal
      “Question on Danbury Assessed Values
      “Spoke to Dan Thomas—Harold Maddocks no longer with firm— * * *
      “• Discussed over-valuation
      “• Our understanding was a value of 350-355 [million] per agreement -with Mr. Maddocks—
      “• Call back on 12/3/87 from Mr. Thomas—United Appraisal has no problem adjusting full value back to 350-355 [million] range—
      “• Will call back with actual [number]
      “• Will issue revised notices
      “• Field cards available after 2/1/88—when infopmation] is turned over to City Assessor ...”
      Another page of Keating’s notes in the exhibit provides in relevant part: “Telephone] call from Dan Thomas of United Appraisal Company—allow additional] depreciation], (i.e., from 12 percent] to 15 [percent])” Keating then compared the original value of $362,192,850 with the revised value “per [telephone call” of $351,700,000 and concluded that the “overall estimated] savings” would be $773,000.

       The following is an excerpt from the examination of Keating by Daniel E. Casagrande, counsel representing the defendant:
      “Q. When you told Mr. Thomas that there was an agreement with Mr. Maddocks, you were referring to an agreement on value that had been reached with Mr. Maddocks in the meeting on October [22] between you and Mr. Maddocks . . . [among others], were you not?
      “A. As I indicated to you at my deposition ... it was a bad choice of words to use the word ‘agreement.’ It was more an understanding that we had with Mr. Maddocks based upon our meeting of October, [1987]. * * *
      “Q. Even though you told Mr. Thomas on December [2] that there was an agreement, you didn’t mean that there was an agreement?
      “A. Yes.

        “Q. When you used the term ‘agreement’ on [your] note [concerning the meeting with Mr. Thomas on December 2], your testimony is that you meant to refer to an understanding?
      “A. Yes, sir.
      “Q. What’s the difference?
      “A. Very little.
      “Q. Very little?
      “A. It was our understanding that, at the time we were having a discussion with Mr. Maddocks in October, that the range of a value that was being discussed was in the 350 to 355 million dollar range.
      “Q. What did you mean when you said it was a bad choice of words when you used the word ‘agreement’ on this note?
      “A. Well, basically, in the one meeting with Mr. Maddocks that lasted [one] hour to [one] hour and fifteen minutes, it was just basically a discussion of a number of different points that Mr. Maddocks brought up. And then there was a discussion about a range of value and that range was in the 350 to 355 million dollar category.
      “Q. That’s not what you told Mr. Thomas on December [2], is it? . . .
      “A. No.
      “Q. You told Mr. Thomas that there was an agreement, right?
      “A. That there was an understanding that there was an agreement.
      “Q. Your [note] says that you told Mr. Thomas that there was an agreement. Doesn’t it say that?
      “A. Yes, it does say that, sir.
      “Q. And that’s what you told Mr. Thomas, right?
      “A. Yes.
      “Q. Because you wanted Mr. Thomas to believe that there was an agreement, right?
      “A. No.
      “Q. You—
      “A. —Not really.
      “Q. —didn’t want him to believe there was an agreement, yes or no?
      “A. No.
      “Q. You didn’t want him to believe there was an agreement? You wanted him to reduce the value on the notices that he sent to you, right? . . .
      “A. Yes. Based upon the understanding—
      “Q. Mr.—Mr. Keating, I think you can answer that question yes or no. You wanted him to reduce the value, did you not?
      “A. Yes, sir.
      “Q. So you told him there was an agreement, did you not?
      “A. Yes, sir.
      ❖ ❖ sN “Q. And now you want this court to believe that there really was no agreement on October [22]?

        “A. There was no iron clad agreement. No. There was an understanding.
      “Q. That’s not—I’m not asking—Sir, I am not asking whether there was an iron clad agreement. My question is that you want this court to believe that there was no agreement reached at that meeting on October [22]. * ** *
      “A. There . . . was a general agreement with regard to a range of value.
      “Q. That’s your testimony?
      “A. Yes, sir.
      * * * “Q. And when [on December 2] you represented to Mr. Thomas that there was an agreement. . . you intended [for] him to rely on that representation and reduce the value to the numbers that had been agreed on, correct?
      “A. Yes.”


text:
    TOWN OF CANTERBURY v. COMMISSIONER OF ENVIRONMENTAL PROTECTION

      Kevin M. Tighe, in support of the petition.

      Anthony Jannotta, assistant attorney general, in opposition.
    Decided June 27, 2001
   The plaintiffs petition for certification for appeal from the Appellate Court, 62 Conn. App. 816 (AC 20474), is denied.


text:
    STATE OF CONNECTICUT v. WILLIAM DRAKEFORD, JR.
    The Supreme Court docket number is SC 16551.

      William B. Westcott, special public defender, in support of the petition.

      Linda N. Howe, assistant state’s attorney, in opposition.
    Decided June 27, 2001
   The defendant’s petition for certification for appeal from the Appellate Court, 63 Conn. App. 419 (AC 19048), is granted, limited to the following issue:

“Did the Appellate Court properly affirm the trial court’s finding of no conflict of interest under the facts of this case?”

VERTEFEUILLE, J., did not participate in the consideration or decision of this petition.


text:
    STATE OF CONNECTICUT v. DARRYL FLETCHER

      Donald D. Dakers, special public defender, in support of the petition.

      Susan C. Marks, supervisory assistant state’s attorney, in opposition.
    Decided June 27, 2001
   The defendant’s petition for certification for appeal from the Appellate Court, 63 Conn. App. 476 (AC 20285), is denied.


text:
    SHAWN ROBINSON v. COMMISSIONER OF CORRECTION

      Sarah F. Summons, special public defender, in support of the petition.

      Leon F. Dalbec, Jr., senior assistant state’s attorney, in opposition.
    Decided July 5, 2001
   The petitioner Shawn Robinson’s petition for certification for appeal from the Appellate Court, 62 Conn. App. 429 (AC 19038), is denied.

VERTEFEUILLE, J., did not participate in the consideration or decision of this petition.


text:
    WILLIAM EVANS v. COMMISSIONER OF CORRECTION
   The petitioner William Evans’ petition for certification for appeal from the Appellate Court, 62 Conn. App. 903 (AC 19690), is denied.

VERTEFEUILLE, J., did not participate in the consideration or decision of this petition.

Sarah F. Summons, special public defender, in support of the petition.

Lawrence J. Tytla, senior assistant state’s attorney, in opposition.

Decided July 5, 2001


text:
    MAXIME HILL v. COMMISSIONER OF CORRECTION

      Alan F. Dillon, in support of the petition.

      Robert J. Scheinblum, assistant state’s attorney, in opposition.
    Decided July 5, 2001
   The petitioner Máxime Hill’s petition for certification for appeal from the Appellate Court, 62 Conn. App. 907 (AC 19728), is denied.


text:
    AMERICAN HERITAGE AGENCY, INC., ET AL. v. RITA GELINAS ET AL.

      Mark S. Rosenblit, in support of the petition.

      JohnM. Wolfson and Andrea A. Hewitt, in opposition.
    Decided July 5, 2001
   The defendants’ petition for certification for appeal from the Appellate Court, 62 Conn. App. 711 (AC 19854), is denied.


text:
    SQUILLANTE ENTERPRISES, INC. v. JOZEF JUCK
   The defendant’s petition for certification for appeal from the Appellate Court, 62 Conn. App. 907 (AC 20976), is denied.

JozefJuck, pro se, in support of the petition.

Myra L. Graubard, in opposition.

Decided July 5, 2001


text:
    STATE OF CONNECTICUT v. ARTHUR MOLLO III

      Monte Radler, supervisory assistant public defender, in support of the petition.

      Bruce R. Lockwood, assistant state’s attorney, in opposition.
    Decided July 5, 2001
   The defendant’s petition for certification for appeal from the Appellate Court, 63 Conn. App. 487 (AC 19324), is denied.

KATZ, J., did not participate in the consideration or decision of this petition.


text:
    STATE OF CONNECTICUT v. LEOTIS PAYNE
    The Supreme Court docket number is SC 16554.

      Conrad Ost Seifert, special public defender, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 63 Conn. App. 583 (AC 20232), is granted, limited to the following issue:

“In the exercise of our supervisory authority over the administration of justice, should the defendant be afforded a new trial due to pervasive prosecutorial misconduct during closing argument?”

ZARELLA, J., did not participate in the consideration or decision of this petition.

Timothy J. Sugrue, senior assistant state’s attorney, in opposition.

Decided July 5, 2001


text:
    ANTONIO FARINHA v. COMMISSIONER OF CORRECTION

      Joseph Visone, special public defender, in support of the petition.

      Lawrence J. Tytla, senior assistant state’s attorney, in opposition.
    Decided July 5, 2001
   The petitioner Antonio Farinha’s petition for certification for appeal from the Appellate Court, 63 Conn. App. 907 (AC 20702), is denied.


text:
    JOHN C. GIBBONS v. UNITED TECHNOLOGIES CORPORATION, PRATT AND WHITNEY AIRCRAFT DIVISION, ET AL.

      Brian W. Prucker, in support of the petition.

      Douglas L. Drayton, in opposition.
    Decided July 5, 2001
   The plaintiffs petition for certification for appeal from the Appellate Court, 63 Conn. App. 482 (AC 20749), is denied.


text:
    JOSEPH GAYMON v. COMMISSIONER OF CORRECTION
   The petitioner Joseph Gaymon’s petition for certification for appeal from the Appellate Court, 63 Conn. App. 905 (AC 21044), is denied.

David B. Rozwaski, special public defender, in support of the petition.

Richard F. Jacobson, special assistant state’s attorney, in opposition.

Decided July 5, 2001


text:
    PATRICK NEMHARD v. COMMISSIONER OF CORRECTION

      Deborah Stevenson, special public defender, in support of the petition.
    Decided July 5, 2001
   The petitioner Patrick Nemhard’s petition for certification for appeal from the Appellate Court, 63 Conn. App. 906 (AC 21095), is denied.


text:
    LENORE A. SULLIVAN ET AL. v. TOWN OF MONROE ET AL.

      Nancy Burton, in support of the petition.

      Gregory M. Conte, in opposition.
    Decided July 5, 2001
   The plaintiffs’ petition for certification for appeal from the Appellate Court (AC 21394) is denied.


text:
    RICHARD AUSTIN v. COMMISSIONER OF CORRECTION
   The petitioner Richard Austin’s petition for certification for appeal from the Appellate Court, 61 Conn. App. 547 (AC 19524), is denied.

David E. Crow, Jr., in support of the petition.

John A. East III, assistant state’s attorney, in opposition.

Decided July 10, 2001

ZARELLA, J., did not participate in the consideration or decision of this petition.


text:
    STATE OF CONNECTICUT v. THADDEUS TAYLOR

      Lisa J. Steele, special public defender, in support of the petition.

      Marjorie Allen Dauster, senior assistant state’s attorney, in opposition.
    Decided July 10, 2001
   The defendant’s petition for certification for appeal from the Appellate Court, 63 Conn. App. 386 (AC 17168), is denied.


text:
    IN RE CANDACE H.
    The Supreme Court docket number is SC 16555.

      JohnE. Tucker, assistant attorney general, in support of the petition.
   The petition by the department of children and families for certification for appeal from the Appellate Court, 63 Conn. App. 493 (AC 20663), is granted, limited to the following issue:

“Did the Appellate Court properly conclude that the trial court impermissibly delegated to the department of children and families the responsibility of determining, in the future, whether visitation by the respondent mother is in the best interests of the child?”

Carolyn C. Mihalek, in opposition.

Decided July 10, 2001


text:
    MARC R. PAGE v. COMMISSIONER OF CORRECTION

      Del Atwell, special public defender, in support of the petition.

      Michele C. Lukban, assistant state’s attorney, in opposition.
    Decided July 10, 2001
   The petitioner Marc R. Page’s petition for certification for appeal from the Appellate Court, 63 Conn. App. 908 (AC 20770), is denied.


text:
    MARY LIROT v. MASHANTUCKET PEQUOT GAMING ET AL.

      Mario Mendela-Gandhi, in support of the petition.

      Theodore M. Pappas, in opposition.
    Decided July 17, 2001
   The plaintiffs petition for certification for appeal from the Appellate Court, 62 Conn. App. 908 (AC 20637), is denied.


text:
    STATE OF CONNECTICUT v. GORDON LEE FRUEAN II
   The defendant’s petition for certification for appeal from the Appellate Court, 63 Conn. App. 466 (AC 17623), is denied.

Averum J. Sprecher, special public defender, in support of the petition.

Rita M. Shair, assistant state’s attorney, in opposition.

Decided July 17, 2001


text:
    STATE OF CONNECTICUT v. XAVIER WRIGHT

      Timothy E. Welsh, in support of the petition.

      Michael L. Regan, senior assistant state’s attorney, in opposition.
    Decided July 17, 2001
   The defendant’s petition for certification for appeal from the Appellate Court, 63 Conn. App. 138 (AC 18234), is denied.

SULLIVAN, C. J., did not participate in the consideration or decision of this petition.


text:
    STATE OF CONNECTICUT v. SANTOS PARIS

      Auden Grogins, special public defender, in support of the petition.

      Harry Weller, senior assistant state’s attorney, in opposition.
    Decided July 17, 2001
   The defendant’s petition for certification for appeal from the Appellate Court, 63 Conn. App. 284 (AC 18471), is denied.


text:
    RICHARD OPOTZNER ET AL. v. WAYNE BASS ET AL.

      Howard A. Jacobs, William F. Dow III and Minor C. Sterling, in support of the petition.

      Paul D. Williams, in opposition.
    Decided July 17, 2001
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 63 Conn. App. 555 (AC 19563), is denied.

NORCOTT, J., did not participate in the consideration or decision of this petition.


text:
    RONNIE FIELDS v. HOUSING AUTHORITY OF THE CITY OF STAMFORD

      William B. Westcott, in support of the petition.

      John B. Farley, Kevin M. Roche and Ralph W. Johnson III, in opposition.
    Decided July 17, 2001
   The plaintiffs petition for certification for appeal from the Appellate Court, 63 Conn. App. 617 (AC 19942), is denied.


text:
    OLWEN M. FALKENSTEIN v. MICHAEL FALKENSTEIN

      Olwen M. Falkenstein, pro se, in support of the petition.
    Decided July 17, 2001
   The plaintiffs petition for certification for appeal from the Appellate Court, 63 Conn. App. 909 (AC 20143), is denied.


text:
    STATE OF CONNECTICUT v. VANVERN BLAKE

      Kimball Haines Hunt, in support of the petition.

      John A. East III, assistant state’s attorney, in opposition.
    Decided July 17, 2001
   The defendant’s petition for certification for appeal from the Appellate Court, 63 Conn. App. 536 (AC 20413), is denied.


text:
    PERRY FORGIONE v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT, ET AL.

      Perry Forgione, pro se, in support of the petition.

      Thomas P. Clifford III, assistant attorney general, in opposition.
    Decided July 17, 2001
   The plaintiffs petition for certification for appeal from the Appellate Court, 63 Conn. App. 903 (AC 20645), is denied.


text:
    CHRISTOPHER CHAPPELL v. MANAFORT BROTHERS, INC., ET AL.

      Robert M. Fitzgerald, in support of the petition.

      Nancy S. Rosenbaum, in opposition.
    Decided July 17, 2001
   The plaintiffs petition for certification for appeal from the Appellate Court, 63 Conn. App. 630 (AC 20701), is denied.