author: BORDEN, J.

text:
    SATURN CONSTRUCTION COMPANY, INC. v. PREMIER ROOFING COMPANY, INC.
    (15386)
    Callahan, Borden, Norcott, Katz and Palmer, Js.
    Argued April 26
    officially released July 30, 1996

      Louis R. Pepe, with whom, on the brief, were David E. Rosengren and Robert G. Dunn, for the appellant (plaintiff).

      Raymond A. Garcia, with whom, on the brief, was Constantine G. Antipas, for the appellee (defendant).
   BORDEN, J.

The principal issue in this appeal is whether an arbitration panel manifestly disregarded the law by awarding interest and attorney’s fees to the defendant in its resolution of an unrestricted arbitration submission. The plaintiff, Saturn Construction Company, Inc., appeals from the judgment of the trial court denying its application to vacate, and granting the motion of the defendant, Premier Roofing Company, Inc., to confirm the arbitration award in its favor. The plaintiff claims that the trial court improperly confirmed the award for the following reasons: (1) the arbitration panel improperly denied the plaintiffs request to open the arbitration proceedings to review relevant and material new evidence; and (2) the arbitration panel manifestly disregarded the law by awarding interest and attorney’s fees because the defendant had failed to comply with General Statutes § 49-41a et seq., the Prompt Pay Act. We affirm the judgment of the trial court based, however, on different reasoning.

The arbitration panel reasonably could have found the following facts. The plaintiff, a general contractor on a state of Connecticut department of public works construction project known as the Western Connecticut Correctional Center (project), entered into a subcontract with the defendant, in which the defendant was responsible for the installation of the project’s roofing system. On January 21, 1992, the defendant sent the plaintiff a letter, by certified mail, return receipt requested, in which the defendant demanded payment under the contract. The plaintiff did not pay as requested. Thereafter, in accordance with an arbitration clause contained in the contract, the defendant made a demand for arbitration to the American Arbitration Association. The defendant claimed that the plaintiff had breached the contract by its failure to pay the amount due under the contract, and sought relief pursuant to § 49-41a and General Statutes § 42-110a et seq., the Connecticut Unfair Trade Practices Act (CUTPA), including, inter alia, the contract balance, interest and attorney’s fees. The plaintiff denied the allegation that it had breached the contract, and asserted two affirmative defenses and a counterclaim.

The arbitration proceedings consisted of ten days of testimony, followed by the parties’ simultaneous submission of posthearing briefs. Following the submission of briefs, but prior to the issuance of the award, the plaintiff moved to open the arbitration proceedings, claiming that it had discovered relevant and material new evidence. The arbitration panel denied the motion.

Subsequently, the arbitration panel awarded the defendant: (1) $303,400 for its breach of contract claim; (2) simple interest on the net amount of $292,500 from February 3, 1992, at the rate of 1 percent per month; and (3) $49,573.98 in legal fees. The arbitration panel awarded the plaintiff $10,900 on its counterclaim.

The plaintiff applied to the Superior Court, pursuant to General Statutes § 52-418, to vacate the award claiming that the arbitration panel had engaged in misconduct by refusing to open the proceedings to hear pertinent and material evidence concerning the defendant’s alleged failure to guarantee the security of the roofing system, and by awarding interest and attorney’s fees pursuant to § 49-41a. The trial court denied the application and confirmed the award. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

I

The plaintiff first claims that the trial court improperly denied its application to vacate the panel’s award pursuant to § 52-418 (a) (3) on the ground the arbitration panel improperly refused to open the proceedings to hear pertinent and material evidence. See O & G/O'Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, 203 Conn. 133, 523 A.2d 1271 (1987). In support of its claim, the plaintiff argues that a letter it received from the defendant’s supplier, Johns-Manville, following the conclusion of the hearings, in which the supplier stated that it would be unable to provide certain bonds for the roof, was a repudiation of a promise made by the defendant during the arbitration proceedings and was, therefore, evidence of critical importance requiring the arbitration panel to open the proceedings. Because we disagree with the plaintiffs assertion that the defendant had promised that either it or its supplier would provide the bonds and the fact that the panel considered this issue to be unresolved, the plaintiff may not prevail on this claim.

“We note, at the outset, that arbitrators are accorded substantial discretion in determining the admissibility of evidence, particularly in the case of an unrestricted submission, which ‘relieve [s] the arbitrators of the obligation to follow strict rules of law and evidence in reaching their decision.’ . . . Indeed, it is within the broad discretion of arbitrators to decide whether additional evidence is required or would merely prolong the proceedings unnecessarily. . . . This relaxation of strict evidentiary rules is both necessary and desirable because arbitration is an informal proceeding designed, in part, to avoid the complexities ofhtigation. Moreover, arbitrators generally are laypersons who bring to these proceedings their technical expertise and professional skills, but who are not expected to have extensive knowledge of substantive law or the subtleties of evidentiary rules.” (Citations omitted.) Id., 148-49.

“To establish that an evidentiary ruling, or lack thereof, rises to the level of misconduct prohibited by § 52-418 (a) (3) requires more than a showing that an arbitrator committed an error of law. . . . Rather, a party challenging an arbitration award on the ground that the arbitrator refused to receive material evidence must prove that, by virtue of an evidentiary ruling, he was in fact deprived of a full and fair hearing before the arbitration panel.” (Citations omitted.) Id., 149.

During the arbitration proceedings the plaintiff had claimed that a potential deterioration problem with the roofing system obligated the defendant, through its supplier, to provide certain additional bonds, which would indemnify the plaintiff to the state. The defendant argued, to the contrary, that it was not required to provide the bonds because the problem was a consequence of the state’s specifications wherein the state architect, in order to save money, had eliminated the requirement that a plastic barrier be placed between two of the roof components and the removal of the barrier had resulted in an additional risk that the steel roof deck might corrode. The arbitration panel allowed each party to explore this issue at length. Following the conclusion of the hearings, the plaintiff learned that the defendant’s supplier would be unable to provide the requested bonds. Consequently, the plaintiff requested that the arbitration panel open the proceedings, claiming that the defendant had reneged on its promise to provide the bonds. The request was denied and, thereafter, the plaintiff applied to the trial court to vacate the award.

In its application to vacate, the plaintiff unsuccessfully renewed this claim. The plaintiff contended that at the conclusion of the hearings the parties had come to a mutual agreement on this issue, and that the defendant had represented that it would supply the requested bonds. The plaintiff asserts the supplier’s subsequent letter refusing to provide the bonds was a repudiation of the agreement, which necessitated that the arbitration panel open the hearings to hear new evidence. The trial court was unpersuaded. Noting that the arbitration panel had heard both party’s arguments with regard to this issue, and presumably had considered all of the relevant evidence in denying the request to open the proceedings, the trial court stated that “the transcript of the proceedings before the arbiters reveals the position they took and their determination that the roof had been constructed in accordance with the applicable specification . . . and that they had considered the question of guarantees in their decision to go forward and ultimately in the framing of the award.” The trial court concluded, therefore, that the panel had not improperly refused to hear evidence concerning the bonds. This appeal followed.

The plaintiff claims that the trial court’s conclusion that the arbitration panel had fully considered the bond issue is a logical impossibility because the repudiation of the alleged promise did not occur until after the conclusion of the arbitration hearings. The plaintiff relies on the defendant’s representations during the hearings that the bond issue was “resolved from our point of view,” that “Manville [was] attempting to alleviate the state’s anxiety,” and that the state and Manville were continuing to discuss the issue, as evidence of a mutual agreement reached during the hearings that the defendant would supply the requested bonds. We conclude that this contention is without merit.

Upon careful review of the defendant’s statements in the context of the entire colloquy before the arbitration panel, it is clear that the defendant consistently maintained that it was not obligated to provide the requested bonds because any deterioration problem had resulted from the state’s specifications, with which the defendant had fully complied and at which time its obligation to the plaintiff and to the state had ceased. See footnote 7. Although it is true that the defendant asserted that the state and the supplier were presently engaged in negotiations and that the supplier was attempting to “alleviate the state’s anxiety,” we do not read those assertions as an unequivocal promise that the ultimate resolution of the negotiations would be in the plaintiffs favor. Because the record reveals that at the close of the hearings the arbitration panel considered this issue to be unresolved, the subsequent letter from the supplier to the plaintiff was merely the resolution of an issue that the arbitration panel had not relied on in making its award. The only logical inference, therefore, is that the ultimate resolution was irrelevant to the award and that, as such, the arbitration panel’s refusal to open the proceedings did not deprive the plaintiff of a full and fair hearing.

II

The plaintiff next claims that the trial court improperly concluded that the arbitration panel did not manifestly disregard the law by awarding the defendant interest and attorney’s fees pursuant to § 49-41a, because the defendant had failed to comply with the requirements set forth in the statute. See Garrity v. McCaskey, 223 Conn. 1, 10, 612 A.2d 742 (1992). We are not persuaded.

Our analysis is guided by well established principles of law regarding a party’s application to vacate a consensual arbitration award resulting from an unrestricted submission. “When the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of our judicial review of the award is delineated by the scope of the parties’ agreement. . . . When the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission. . . . Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution.” (Citations omitted.) Garrity v. McCaskey, supra, 223 Conn. 4-5.

“Such a limited scope of judicial review is warranted given the fact that the parties voluntarily bargained for the decision of the arbitrator and, as such, the parties are presumed to have assumed the risks of and waived objections to that decision. . . . It is clear that a party cannot object to an award which accomplishes precisely what the arbitrators were authorized to do merely because that party dislikes the results. . . . Thus, we have previously held that the parties should be bound by a decision that they contracted and bargained for, even if it is regarded as unwise or wrong on the merits.” (Citations omitted.) American Universal Ins. Co. v. Delgreco, 205 Conn. 178, 186-87, 530 A.2d 171 (1987).

“[A]n award that manifests an egregious or patently irrational application of the law is an award that should be set aside pursuant to § 52-418 (a) (4) because the arbitrator has ‘exceeded [his] powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.’ We emphasize, however, that the ‘manifest disregard of the law’ ground for vacating an arbitration award is narrow and should be reserved for circumstances of an arbitrator’s extraordinary lack of fidelity to established legal principles.

“So delimited, the principle of vacating an award because of a manifest disregard of the law is an important safeguard of the integrity of alternate dispute resolution mechanisms. Judicial approval of arbitration decisions that so egregiously depart from established law that they border on the irrational would undermine society’s confidence in the legitimacy of the arbitration process. . . . Furthermore, although the discretion conferred on the arbitrator by the contracting parties is exceedingly broad, modem contract principles of good faith and fair dealing recognize that even contractual discretion must be exercised for proposes reasonably within the contemplation of the contracting parties.” (Citations omitted.) Garrity v. McCaskey, supra, 223 Conn. 10-11.

In Garrity, we adopted the test enunciated by the United States Court of Appeals for the Second Circuit in interpreting the federal equivalent of § 52-418 (a) (4). Id., 8, citing Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bobker, 808 F.2d 930, 933-34 (2d Cir. 1986). The test consists of the following three elements, all of which must be satisfied in order for a court to vacate an arbitration award on the ground that the arbitration panel manifestly disregarded the law: (1) the error was obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator; (2) the arbitration panel appreciated the existence of a clearly governing legal principle but decided to ignore it; and (3) the governing law alleged to have been ignored by the arbitration panel is well defined, explicit, and clearly applicable. Id., 9.

A

The plaintiff claims that the arbitration panel manifestly disregarded the law by awarding the defendant interest pursuant to § 49-41a because the defendant failed to comply with the statutory notice requirement. In that connection, the plaintiff argues that the defendant did not provide adequate notice of its claim, as required by § 49-41a, because the January 21,1992 letter did not specifically invoke § 49-41a and was only intended to serve as notice under General Statutes § 49-42 (a), the Payment Bond Claim Act. The defendant argues, to the contrary, that the January 21, 1992 letter satisfied the statutory notice requirement and that, therefore, it was entitled to an award of interest under § 49-41a. In addition, the defendant argues that, even if the arbitration panel’s determination that the letter was adequate notice under the statute was a misinterpretation of the law, it was not a manifest disregard of the law and, therefore, did not warrant vacating the interest award. We agree with the defendant.

The relevant portion of § 49-41a (b) provides that “the subcontractor shall set forth his claim against the general contractor . . . through notice by registered or certified mail. Ten days after the receipt of that notice, the general contractor shall be liable to its subcontractor . . . for interest on the amount due and owing at the rate of one per cent per month.” On January 21, 1992, the defendant sent the plaintiff a letter, by certified mail, which provided in part: “I am writing to attempt to clear up the dispute which now exists between Premier and Saturn over payments due Premier on our subcontract for the referenced project. . . . If I do not receive payment of $283,400.00 by close of business Friday, January 25, 1992,1 have instructed my attorney, Raymond Garcia, to institute arbitration against Saturn and proceed as appropriate against the bonding company, consistent with Conn. Gen. Stat. 49-42 (a). . . . If you do not make payment by Friday, I will seek the entire amount outstanding, which is $303,400.00, together with interest and legal fees. . . .”

Applying the test set forth in Ga/rrity to the present case, we are unable to conclude that the notice requirements of § 49-41a, alleged to have been ignored by the arbitration panel, were “well defined, explicit, and clearly applicable.” Garrity v. McCaskey, supra, 223 Conn. 9. First, the parameters of the notice requirements of § 49-41a have never been addressed by this court or the Appellate Court. Second, the statute directs only that “the subcontractor shall set forth [its] claim against the general contractor,” and is lacking any requirement that the subcontractor expressly invoke the statute. Thus, the language of § 49-41a does not expressly compel the interpretation proffered by the plaintiff. Finally, the January 21,1992 letter unquestionably provided the plaintiff with actual notice of the defendant’s intent to institute arbitration proceedings and seek the contract balance, interest and attorney’s fees, if the plaintiff did not comply with the defendant’s demand for money due under the contract. A determination that actual notice is sufficient to satisfy § 49-41a is a reasonable interpretation of the statute. A party’s mere disagreement with the panel’s interpretation and application of established legal principles is “a far cry from the egregious or patently irrational misperformance of duty that must be shown in order to prove a manifest disregard of the law under § 52-418 (a) (4). Acceptance of [this] argument would turn every disagreement with arbitrators’ rulings of law into an allegation of manifest disregard of the law. We have never construed § 52-418 (a) (4) so broadly and we decline to do so today.” Id., 13. The manifest disregard of the law doctrine “is narrow and should be reserved for circumstances of an arbitrator’s extraordinary lack of fidelity to established legal principles.” Id., 10. Thus, we conclude that the arbitration panel’s award of interest pursuant to § 49-41a and, by necessary implication, its determination that the January 21, 1992 letter satisfied the statutory notice requirement, was not a manifest disregard of the law.

Moreover, even if we were to conclude that the interpretation of § 49-4 la proffered by the plaintiff was well defined, explicit and clearly applicable, we could not conclude, pursuant to the Garrity test, that the arbitration panel appreciated but ignored it. There is no evidence in the record that the plaintiff ever made this argument before the arbitration panel. In fact, in its posthearing brief, the plaintiff did not claim that the January 21,1992 letter was inadequate notice to trigger the § 49-41a (b) interest provision. Rather, this issue was raised for the first time in the plaintiffs application to the trial court. Accordingly, we affirm the trial court’s judgment with regard to the award of interest.

B

The plaintiff next claims that the arbitration panel manifestly disregarded the law by awarding the defendant attorney’s fees pursuant to § 49-41a (b) because the defendant had failed to comply with the statutory requirement to demand, in writing, that the general contractor place funds in the amount of the claim, plus interest of 1 percent, in an interest-bearing escrow account. The plaintiff further contends that even if the arbitration panel properly had concluded that the defendant satisfied the requirements of § 49-4 la (b) with regard to an award of attorney’s fees, the arbitration panel manifestly disregarded the law by failing to limit the award to the fees incurred in the prosecution of the defendant’s claim, as opposed to the fees incurred in its defense of the plaintiffs counterclaims. See Ernst Steel Corp. v. Reliance Ins. Co., 13 Conn. App. 253, 262, 536 A.2d 969 (1988). Because we conclude that the arbitration panel could have awarded attorney’s fees pursuant to CUTPA, we need not address the plaintiffs claims.

When the scope of an arbitration submission is unrestricted, a resulting award is not subject to de novo review, even for errors of law, so long as the award conforms to the submission. Garrity v. McCaskey, supra, 223 Conn. 5. In the present case, the submission was broad and unrestricted, which provided the arbitration panel with the authority to decide all claims between the parties. In its demand for arbitration, the defendant alleged that the plaintiff had breached the contract and sought relief pursuant to both the Prompt Pay Act and CUTPA. In its posthearing brief, the defendant argued that in addition to an award of attorney’s fees pursuant to § 49-41a (b), “[t]he absolute corrupt nature of the defenses asserted here by [the plaintiff] also provide the panel the right to award legal fees as punitive damages. This panel can find that [the plaintiffs] refusal to pay was without any foundation in fact or law and amounts to malicious disregard of [the defendant’s] rights. The arbitration demand language is sufficient to support such an award and in Connecticut punitive damages are limited to legal fees in a case such as this.” Before the trial court and again in its appeal to this court, the defendant renewed its claim that the arbitration panel could have awarded legal fees pursuant to CUTPA.

Furthermore, the defendant alleged facts that, if true, would support a finding of liability under CUTPA without contravening the rule set forth in Garrity. Specifically, the defendant contended that the plaintiff had refused to pay money due under the contract without foundation and had asserted a frivolous counterclaim. “ ‘It is well settled that in determining whether [an act or] practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when [an act or] practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [competitors or other businessmen]. . . .

“ ‘All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three. . . . Thus a violation of CUTPA may be established by showing either an actual deceptive practice ... or a practice amounting to a violation of public policy.’ ” (Citations omitted.) Jacobs v. Healey Ford-Subaru, Inc., 231 Conn. 707, 725-26, 652 A.2d 496 (1995).

“ ‘[T]he plaintiff who establishes CUTPA liability has access to a remedy far more comprehensive than the simple damages recoverable under common law.’ . . . This remedy is not limited to mere compensatory damages. . . .Rather, under CUTPA, a plaintiff is entitled to have the trial court consider awarding both punitive damages; General Statutes § 42-1 lOg (a); and attorney’s fees. General Statutes § 42-110g (d) . . . .” (Citations omitted; emphasis added.) Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 509-10, 656 A.2d 1009 (1995).

In light of the defendant’s claim for relief in its demand for arbitration and the factual allegations regarding the plaintiffs conduct, we conclude that the arbitration panel’s award of attorney’s fees could have been made pursuant to the defendant’s CUTPA claim. Thus, the resulting award was within the scope of the submission. It is unnecessary, therefore, for us to determine whether the arbitration panel manifestly disregarded the statutory requirements of § 49-41a (b), with regard to attorney’s fees.

The plaintiff contends, nonetheless, that attorney’s fees must have been awarded pursuant to § 49-4 la, rather than CUTPA, because it is undisputed that the interest award was made pursuant to § 49-41a, and because there was no other basis on which they could have been awarded. The fact that interest was awarded pursuant to § 49-41a, however, does not compel the conclusion that the attorney’s fees were also awarded on that basis. Furthermore, as demonstrated by the assertions in the defendant’s demand for arbitration, the plaintiffs argument that there was no other basis on which attorney’s fees could have been awarded is without merit.

The plaintiff also argues that the defendant had abandoned its CUTPA claim, as evidenced by the defendant’s posthearing brief in which its claim for attorney’s fees was based on § 49-41a, rather than on CUTPA, which the defendant failed to cite. On the basis of the defendant’s claim for relief, the arguments made in its posthearing brief, which did not limit the claim for attorney’s fees to § 49-41a, and the absence of any indication that the arbitration panel considered the defendant’s CUTPA claim to be abandoned, however, the plaintiff may not prevail on this argument.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 49-41a provides: “Enforcement of payment by general contractor to subcontractor and by subcontractor to Ms subcontractors, (a) When any public work is awarded by a contract for wMch a payment bond is required by section 49-41, the contract for the public work shall contain the followmg provisions: (1) A requirement that the general contractor, witMn thirty days after payment to the contractor by the state ora mumcipality, pay any amounts due any subcontractor, whether for labor performed or materials furnished, when the labor or materials have been included m a reqmsition submitted by the contractor and paid by the state or a mumeipality; (2) a requirement that the general contractor shall include in each of its subcontracts aprovision requiring each subcontractor to pay any amounts due any of its subcontractors, whether for labor performed or materials furMshed, within thirty days after such subcontractor receives a payment from the general contractor which encompasses labor or materials furMshed by such subcontractor.

        “(b) If payment is not made by the general contractor or any of its subcontractors in accordance with such requirements, the subcontractor shall set forth his claim against the general contractor and the subcontractor of a subcontractor shall set forth its claim against the subcontractor through notice by registered or certified mail. Ten days after the receipt of that notice, the general contractor shall be liable to its subcontractor, and the subcontractor shall be liable to its subcontractor, for interest on the amount due and owing at the rate of one per cent per month. In addition, the general contractor, upon written demand of its subcontractor, or the subcontractor, upon written demand of its subcontractor, shall be required to place funds in the amount of the claim, plus interest of one per cent, in an interest-bearing escrow account in a bank in this state, provided the general contractor or subcontractor may refuse to place the funds in escrow on the grounds that the subcontractor has not substantially performed the work according to the terms of his or its employment. In the event that such general contractor or subcontractor refuses to place such funds in escrow, and the party making a claim against it under this section is found to have substantially performed its work in accordance with the terms of its employment in any arbitration or litigation to determine the validity of such claim, then such general contractor or subcontractor shall pay the attorney’s fees of such party.
      “(c) No payment may be withheld from a subcontractor for work performed because of a dispute between the general contractor and another contractor or subcontractor.
      “(d) This section shall not be construed to prohibit progress payments prior to final payment of the contract and is applicable to all subcontractors for material or labor whether they have contracted directly with the general contractor or with some other subcontractor on the work.”

       The letter, which was signed by Stuart Grodd, the president of the defendant, provides in relevant part: “I am writing to attempt to clear up the dispute which now exists between Premier and Saturn over payments due Premier on our subcontract for the referenced project.
      “During the course of the last three months, I and other members of my staff have tried to resolve our claim for money due under the subcontract. . . .

        “If you do not make payment by Friday, I will seek the entire amount outstanding, which is $303,400.00, together with interest and legal fees. . . .
      “THIS LETTER IS INTENDED AS THE NOTICE REQUIRED BY CONN. GEN. STAT. § 49-42 (a), A COPY OF WHICH IS ENCLOSED.”

       The arbitration clause provided: “Agreement to Arbitrate: Any dispute arising out of the awarding of the contract for this project by the Commissioner of Administrative Services, or performance thereunder, shall be submitted to arbitration under the rules of the American Arbitration Association. Hartford, Connecticut shall be the locale where the Arbitration is to be held. ” It is undisputed that this is an unrestricted submission, which provides the arbitration panel with unlimited authority to resolve all of the parties’ claims and defenses. See Garrity v. McCaskey, 223 Conn. 1, 5-6, 612 A.2d 742 (1992).

       The demand for arbitration provided in relevant part:
      “NATURE OF DISPUTE: Breach of Contract
      “CLAIM OR RELIEF SOUGHT: (amount, if any)
      “Monetary damages including but not limited to contract balance, change orders, retainage, plus interest and attorney’s fees (pursuant to Conn. Gen. Stat. Sec. 49-41a, et seq.), and multiple/punitive damages (pursuant to Conn. Gen. Stat. Sec. 42-110a, et seq.).”

       The plaintiff asserted, as affirmative defenses, that the defendant had (1) breached the contract by failing to perform its obligations, and (2) failed to provide certain warranties, which was a condition precedent to the payment of the money claimed. In its counterclaim, the plaintiff sought to recover damages suffered as a result of the defendant’s alleged failure to perform.

       General Statutes § 52-418 provides in relevant part: “Vacating award, (a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       The transcript of the arbitration proceeding provides in relevant part:
      “Mr. Rice [arbitrator]: What is the status of the warranty at this point?
      “Mr. Garcia [defendant’s counsel]: The status of it is Manville is now talking to the state directly.
      “Mr. Rice: So that’s not changed since last time?
      “Mr. Garcia: That’s right.
      “Mr. Rice: Has there been any resolution or ongoing discussions?
      “Mr. Garcia: They’re still talking. The state, our representation is the state is trying to get Manville to provide some security with the eventuality they may not be in the roofing business in twenty years.
      “Mr. Geraci [plaintiffs in-house counsel]: The state wants a bond essentially backed by a surety company?
      “Mr. Rice: In case Manville goes the way of the asbestos?
      “Mr. Geraci: Absolutely.
      “Mr. Donnellan [plaintiffs arbitration counsel]: Because there’s some deterioration on the roof now, but they can live with it now. It’s ridiculous to make them rip it off.
      “Mr. Delaney [arbitrator]: How is that relevant to this situation?
      “Mr. Donnellan: This is the whole issue with respect to what Saturn’s justification is of withholding the money.

        “Mr. Rice: I mean the status of the negotiations with the state, how is it relevant?
      “Mr. Donnellan: It’s relevant to demonstrate it hasn’t been resolved.
      “Mr. Rice: Until we’re told it’s going to be resolved, we’re going to assume that it hasn’t been resolved.
      “Mr. Donnellan: Well, then, what I’d like to do is get into evidence two recent letters that deal with the situation just so we can bring it up to that, and we can leave it at that.
      “Mr. Delaney: Well, can we stipulate it is not resolved?
      “Mr. Garcia: It is resolved from our point of view. Manville is attempting to alleviate the state’s anxiety. It’s our position the roof was resolved. It wasn’t an issue until Mr. Cappelli decided he wanted to stiff — the state’s man sat here and said they got two and a half percent on Premier’s contract, and they haven’t held a dime towards the roof, they’re just using the situation to attempt to deal with an ambiguity that deals with the roofs situation. That’s what the state’s man said.
      “Mr. Rice: I understand.
      “Mr. Donnellan: I don’t think that’s an accurate statement.
      “Mr. Rice: I don’t care what it is. We heard it.
      “Mr. Delaney: Let’s get it on the record and let’s put it away.
      “Mr. Garcia: Now, from that point of view, whether it’s, quote, ‘resolved’ isn’t the issue; the question is whether what Premier provided conformed to the spec. And that only relates to two and a half percent, quite frankly. And you have the specifications, you have the warranties and the like in specimen form here, and that’s as far as it needs to go.
      “Mr. Delaney: Are you satisfied the record is clear on where everything stands?
      “Mr. Donnellan: I’m not satisfied with what Mr. Garcia said, because I don’t think that correctly states it.
      “Mr. Delaney: Then state your position so it’s on the record.
      “Mr. Donnellan: With respect to what Premier provided, Premier Roofing supplied certain product, they got it from Johns-Manville, but they did the installation of the roof. That installation of the roof and the material that they used, all right, is attacking the metal decking and has caused deterioration in the metal decking. And there’s been submitted into evidence an expert report evidencing the status of that deterioration in the roof at the time that that roof report was prepared.
      “And what has been ongoing is rather than it turn it to Premier and say rip up the roof and do it over, which I believe would be their obligation to do if the deterioration was to such an extent as to attack the roof decking, and because the deterioration of the roof would take such a long period of time and might not reach the point where it would attack, actually attack the integrity of the roof, as a substitute, the state is willing to take some additional warranty or guaranty secured by a bond from Johns-Manville, because the roof might last for twenty years.
      “We’re saying Okay, we hear what you’re saying, the roof might last for twenty years; but if it doesn’t and our decking starts to rust and deteriorate, we want someone responsible for doing that. And Premier and Johns-Man-ville may not be around at that time. But the problem with the deck exists now. Rather than litigate over it now and make the claims, rather than the state make a claim against you and against Premier, let’s remedy the situation.
      “Mr. Delaney: I think your position is clear on the record and your position is clear on the record.
      “Mr. Garcia: Our position is we did it the way the specification—
      “Mr. Frazier [arbitrator]: It’s on the record.
      “Mr. Rice: We understand. We understand. We understand that the roof was constructed according to specs. There’s no dispute.
      “Mr. Delaney: I think the positions of both parties are clear. Do we have to pursue it any further? We’ve listened to a lot of testimony on this, you’ve both just summarized it, are you both satisfied we can put this portion of the case to bed?
      “Mr. Garcia: Based on what Mr. Rice just said, you recognize the spec — the roofs in according to specification.
      “Mr. Rice: Including the change spec. We understand the specification with respect to the roof. But the roof is constructed according to the original specs where applicable and according to the modified specs where applicable.
      “Mr. Garcia: Right?
      “Mr. Donnellan: That’s correct. I think the difference lies on Mr. Garcia I guess feels that his job ends there.
      “Mr. Rice: We’re not going to characterize the legal ramifications of it. I just want to understand factually—
      “Mr. Donnellan: The roof was done in accordance with the modified specs.”

       One of the arbitrators stated: “Until we’re told it’s going to be resolved, we are going to assume it hasn’t been resolved.”

       Because § 49-41a (b) sets forth different requirements for interest and attorney’s fees, we will address each form of relief separately. See footnote 1.

       At oral argument, the defendant conceded that the interest award was made pursuant to § 49-41a (b), in light of the fact that it was awarded at a rate of 1 percent per month and was effective ten days after the plaintiffs receipt of the January 21, 1992 letter, both of which are provided for in § 49-41a. Moreover, in its posthearing brief, the defendant had argued that the only issue with regard to an award of interest was whether the arbitration panel would award interest at 1 percent per month pursuant to § 49-41a (b), or interest at the legal rate of 10 percent per year pursuant to General Statutes § 37-3a, which provides in relevant part: “Rate recoverable as damages. . . . [I]nterest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909 . . . .”

       The plaintiff contends that because the letter was addressed to both the plaintiff and its surety, and that therein the defendant stated its intention to proceed against the surety pursuant to § 49-42 and expressly invoked that statute, the letter was intended to serve as notice under § 49-42, and nothing more. The plaintiff cites our decision in Nor'easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 542 A.2d 692 (1988), in support of its argument that the January 21, 1992 letter may not serve the dual purpose of providing notice under both statutes. We are unpersuaded.
      In Nor’easter Group, Inc., we held that notice under § 49-41a (b) was not a jurisdictional prerequisite to commencing an action under § 49-42. Id., 482. Our decision was based, in part, on the fact that the two statutes were intended “to accomplish separate and distinct ends and to afford separate and distinct remedies to subcontractors.” Id., 477. We did not, however, conclude that a subcontractor could not satisfy the notice requirements of both statutes in the same letter.

       We note that we need not decide whether the arbitration panel’s interpretation of § 49-41a (b) was legally correct. See Garrity v. McCaskey, supra, 223 Conn. 8, citing Wilko v. Swan, 346 U.S. 427, 436-37, 74 S. Ct. 182, 98 L. Ed. 168 (1953) (arbitration panel’s interpretation of law under unrestricted submission not subject to judicial review for error in interpretation). We need only decide in effect that, even if incorrect, it was not manifestly so within the parameters of Garrity.

       In its posthearing brief to the arbitration panel, the plaintiffs claim that the defendant had failed to comply with § 49-41a (b) was limited to the defendant’s claim for legal fees.

       In its reply brief in this court, the plaintiff claims, for the first time, that even if the defendant had pursued its CUTPA claim, any award of attorney’s fees on that basis would be invalid because arbitrators are not authorized, under CUTPA, to award attorney’s fees. In support of this contention, the plaintiff relies on Success Centers, Inc. v. Huntington Learning Centers, Inc., 223 Conn. 761, 763, 613 A.2d 1320 (1992), and Chrysler Corp. v. Maiocco, 209 Conn. 579, 593, 552 A.2d 1207 (1989). It is a well established principle, however, that arguments cannot be raised for the first time in a reply brief. Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 593 n.26, 657 A.2d 212 (1995); Scinto v. Stamm, 224 Conn. 524, 528 n.5, 620 A.2d 99, cert. denied, 510 U.S. 861, 114 S. Ct 176, 126 L. Ed. 2d 136 (1993). We decline, therefore, to consider this claim.


source: Caselaw Access Project

author: PALMER, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JOHN CHRISTOPHER BARLETTA
    (15030)
    Peters, C. J., and Borden, Berdon, Norcotl and Palmer, Js.

      Argued April 23
    officially released July 30, 1996

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

      Harry Weller, assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, Susan C. Marks, supervisoiy assistant state’s attorney, and James Bemardi, assistant state’s attorney, for the appellee (state).
   PALMER, J.

A jury convicted the defendant, John Christopher Barletta, of murder in violation of General Statutes § 53a-54a (a) and attempted murder in violation of General Statutes §§ 53a-49 (a) and 53a-54a (a). The defendant appeals from the judgment of the trial court sentencing him to an effective term of life imprisonment. He claims that the trial court improperly: (1) precluded him from introducing into evidence expert medical testimony concerning the effects of cocaine on the cognitive abilities of an eyewitness to the crimes; (2) precluded him from introducing into evidence certain expert psychiatric testimony regarding a second state’s witness on the ground that the information sought to be adduced was protected by the psychiatrist-patient privilege; (3) restricted his examination of several trial witnesses; and (4) refused to instruct the jury on reckless endangerment as a lesser included offense of attempted murder. We affirm the judgment of the trial court.

A jury reasonably could have found the following facts. On the evening of December 12,1992, the defendant attended a party in Norwalk, where he met two men, Deandre Lofton and Adam Atkinson. The three men left the party together in the defendant’s car and traveled to the intersection of Belle Avenue and South Main Street in Norwalk, where the defendant intended to purchase cocaine. Atkinson offered to take the defendant’s money and purchase the cocaine on his behalf. The defendant agreed, handed Atkinson $20, and instructed him to buy two “cookies” of cocaine. Atkinson then exited the car and met with Curtis Ricks, who agreed to serve as an intermediary between Atkinson and a crack cocaine dealer. Atkinson thereupon gave Ricks the defendant’s $20 and Ricks departed the area. Shortly thereafter, Ricks returned with only one cookie of cocaine, explaining that he had spent the entire $20 to obtain it. When the defendant learned that Ricks had purchased only one cookie and not two, the defendant became furious and demanded that Ricks either return his money or furnish him with an additional cookie. Ricks declined and warned the defendant and Atkinson to leave the area. The defendant responded by threatening to kill those who he believed were responsible for cheating him out of the additional cocaine. Although still enraged, the defendant was persuaded by his companions to leave the neighborhood.

The defendant, accompanied by Lofton and Atkinson, drove to his home, where he changed his clothing and retrieved an AK-47-type assault rifle. The three men next proceeded in the defendant’s vehicle to a nearby school, whereupon the defendant exited his car and fired several shots into the adjacent woods. The men then returned to the vicinity of the intersection of Belle Avenue and South Main Street, where the defendant rolled down his car window and began indiscriminately to fire his rifle at the people on the street. Two persons were shot during the defendant’s attack: Barbara McCrae was struck in the head and subsequently died of her wounds, and Karen Perry suffered a gunshot wound to the leg. Following the shootings, the defendant drove to the home of his girlfriend, June Davis, and admitted to her that he had fired upon the victims. Additional facts will be presented as necessary.

I

The defendant first claims that the trial court improperly excluded the testimony of a defense expert regarding the adverse effects of cocaine on the cognitive abilities of a person who ingests the drug, in violation of his rights under the confrontation clause of the sixth amendment to the United States constitution. Although we agree with the defendant that the trial court should have admitted into evidence the expert testimony proffered by the defendant, we are not persuaded that the impropriety was of constitutional magnitude. Moreover, we conclude that the trial court’s failure to allow the challenged testimony into evidence was harmless and, accordingly, that the exclusion does not entitle the defendant to a new trial.

The following additional facts are necessary to our resolution of this issue. Early in the evening of December 12, 1992, Perry purchased between one-half and one gram of cocaine, which she took with her to a “base house” in Norwalk to smoke. Perry gave the proprietor of the base house about one half of the cocaine that she had just purchased and she smoked the rest of the cocaine herself over the next three to four hours. About thirty to forty minutes after she had finished ingesting the cocaine, Perry left the base house and proceeded to the comer of Belle Avenue and South Main Street, a five minute walk. There she met McCrae, with whom she stopped to talk.

While the two women were conversing, Perry noticed the defendant and another man walking toward a car parked nearby. She took parti cular notice of the defendant, a white male with long dreadlocks, because of his unusual appearance. Perry watched as the two men got into the parked car and drove away. About ten or fifteen minutes later, the car returned and screeched to a stop. Perry saw the defendant point a gun out of the car window and begin firing. At trial, Perry identified the defendant as the person who shot her.

After the state had rested its case, the defendant apprised the trial court that he intended to introduce the expert testimony of Eliot Gardner concerning the effects of cocaine on a person’s cognitive abilities in order to impeach Perry’s credibility. The defendant sought to elicit Gardner’s testimony for two reasons: first, to establish that Perry had remained under the influence of cocaine even after the euphoria caused by the drug had abated, and second, to explain the cognitive impairment caused by the ingestion of cocaine, both generally and with respect to Perry. The state objected to Gardner’s testimony on the grounds that it was irrelevant and speculative. To substantiate his claim of admissibility, the defendant then elicited testimony from Gardner outside the presence of the jury.

Gardner testified that there was “a very high degree of probability that [Perry] was under the influence of cocaine at the time [of the shooting],” that cocaine affects cognitive and perceptual abilities and the processes of memory storage and retrieval, and that there was “a high degree of probability that [Perry’s] visual observations [at the time of the shooting] would be unreliable.” At the conclusion of the defendant’s voir dire examination of Gardner, the trial court ruled that Gardner could testify regarding “generalities concerning narcotics and particularly the effect it might have in impairing a person’s ability to observe and correctly relate what he or she observed.” The trial court, however, refused to allow Gardner to testify about the likely effect of the cocaine on Perry herself.

Immediately after the trial court’s ruling, the state requested the opportunity to cross-examine Gardner outside the presence of the jury. The trial court granted the state’s request and, on voir dire examination by the state, Gardner reiterated much of his direct testimony. He also testified in some detail, however, about cocaine-induced hallucinations. Specifically, he explained that there was a “high degree of probability that hallucinations may . . . [occur]” after a person has ingested between one-quarter and one-half gram of street quality cocaine, that published studies indicate that between 40 and 50 percent of cocaine users experience hallucinations, and that those persons with a histoiy of cocaine abuse are more likely to experience hallucinations than less frequent users. At the conclusion of its voir dire examination of Gardner, the state renewed its objection to Gardner’s testimony on the grounds that: (1) Gardner had no direct knowledge of Perry’s condition on the evening of the shooting; (2) because cocaine affects people differently, Gardner could not testify with specificity how Perry’s cognitive abilities were likely to have been impaired that evening; (3) Gardner’s testimony was based upon the testimony of Perry, whom the defendant was attempting to impeach; and (4) Gardner could not testify that it was more probable than not that Perry’s identification of the defendant as the shooter was the product of a hallucination.

The trial court, upon reconsideration of its earlier ruling, concluded that Gardner’s testimony would be relevant only to explain any discrepancies between Perry’s version of the shooting and any other accounts of the event. The trial court reasoned that because no witness had as yet contradicted Perry’s testimony, Gardner’s testimony was premature. Accordingly, the trial court denied the defendant’s request to call Gardner as a witness, without prejudice to renewal if and when the defendant elicited evidence to contradict Perry’s account of the incident.

The defendant himself then testified before the jury. He testified that, although he had been present in the car at the time of the shooting, Atkinson, and not he, had fired the shots that struck McCrae and Perry. Following his testimony, the defendant once again sought to introduce Gardner’s expert testimony regarding the effects of cocaine on perception. During his renewed offer of proof, the defendant stated, consistent with Gardner’s earlier voir dire testimony, that Gardner would testify that it was more probable than not that a person who had ingested one-quarter to one-half gram of cocaine would suffer a cognitive deficit, and that the impairment could take the form of hallucinations, delusions, memory loss or incorrect processing of visual information. The state, in response, objected solely on the ground that Gardner’s testimony regarding the possibility that Perry could have suffered hallucinations was speculative; the state did not specifically address the defendant’s claim concerning the admissibility of Gardner’s testimony as it related to the general effects of cocaine on cognition. The trial court, also focusing on Gardner’s testimony that Perry’s identification of the defendant as the shooter might have been the product of a hallucination, denied the defendant’s request to call Gardner as a trial witness, concluding, as the state had argued, that Gardner’s testimony regarding the possible hallucinatory effect of cocaine was too speculative.

The state maintains that the trial court properly excluded Gardner’s testimony because he did not state that, in his opinion, hallucinations occur more than 50 percent of the time when a person ingests cocaine. This argument, however, misconstrues the import of Gardner’s testimony. Although it is true that Gardner could not say that a person under the influence of cocaine is more likely than not to experience the type of complex visual hallucinations that would affect the reliability of his or her observations, Gardner repeatedly and unequivocally stated that hallucinations are but one of several different kinds of cognitive impairments likely to be caused by cocaine use. Furthermore, Gardner testified that there was a high degree of probability that Percy was under the influence of cocaine at the time of the shooting and that it was more likely than not that her visual observations at that time were unreliable due to her cocaine ingestion. Whether the jury would have credited such testimony is not the issue before us; the question, rather, is whether the testimony was reasonably likely to have assisted the jury in evaluating the reliability of one of the eyewitnesses to the crime. In light of the nature of Gardner’s testimony, we must answer that question in the affirmative. Because the defendant had a right to introduce Gardner’s testimony for the purpose of challenging Perry’s credibility, we conclude that the trial court abused its discretion in precluding Gardner’s testimony concerning the effect of cocaine on the cognitive abilities of a person who ingests it.

The defendant claims that the erroneous preclusion of Gardner’s testimony violated his constitutionally protected right to present a defense. See, e.g., State v. Edwards, 234 Conn. 381, 388, 661 A.2d 1037 (1995); State v. Carter, 228 Conn. 412, 427-28, 636 A.2d 821 (1994). “In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. Davis v. Alaska, [415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974)] . . . .” State v. Beliveau, 237 Conn. 576, 585, 678 A.2d 924 (1996); State v. Barnes, 232 Conn. 740, 746, 657 A.2d 611 (1995). Thus, “[w]hen defense evidence is excluded, such exclusion may give rise to a claim of denial of the right to present a defense. Chambers v. Mississippi, [410 U.S. 284, 289-90, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973)].” State v. Christiano, 228 Conn. 456, 474, 637 A.2d 382, cert. denied, 513 U.S. 821, 111 S. Ct. 83, 130 L. Ed. 2d 36 (1994); see also State v. Cavell, 235 Conn. 711, 720, 670 A.2d 261 (1996) (“under particular circumstances, the unjustified exclusion of a witness’ testimony can amount to a deprivation of the defendant’s right to present a defense”). “Whether a trial court’s erroneous restriction of a defendant’s or defense witness’s testimony in a criminal trial deprives a defendant of his due process right to present a defense is a question that must be resolved on a case by case basis.” State v. Jones, 205 Conn. 723, 731, 535 A.2d 808 (1988).

In the present case, the defendant sought to introduce Gardner’s testimony to impeach Perry by casting doubt on her reliability as an eyewitness. Perry, however, admitted during her trial testimony that she had smoked cocaine immediately prior to the shooting and, on the basis of her acknowledged familiarity with the drug, the jury reasonably could have inferred that she was a frequent cocaine user. Perry further testified that she had been convicted of four felony offenses, including burglary and sale of narcotics. She also indicated that she had been promised by the state that she would not be prosecuted for her admitted use of cocaine. Finally, the trial court did not in any way limit or restrict the defendant’s opportunity to cross-examine Perry. In light of Perry’s testimony, the jury had substantial reason to question her reliability and credibility. “[T]he constitution does not require that a defendant be permitted to present every piece of evidence he wishes.” State v. Christiano, supra, 228 Conn. 474. We conclude, therefore, that the trial court’s exclusion of Gardner’s testimony was not an error of constitutional dimension.

We, nevertheless, must determine whether the trial court’s improper exclusion of Gardner’s testimony entitles the defendant to a new trial. In order to prevail, the defendant must establish that it is more probable than not that the erroneous evidentiary ruling affected the verdict. State v. Cavell, supra, 235 Conn. 721-22; State v. Chapman, 229 Conn. 529, 544, 643 A.2d 1213 (1994). We conclude that the defendant has not satisfied this burden.

We reach this conclusion for two reasons. First, Perry’s version of the events surrounding the shooting was substantially corroborated by other eyewitnesses, each of whom was subject to a sequestration order. Lofton and Atkinson, who were both present at the shooting, gave testimony that coincided in all important details with Perry’s account of the incident. Although each had a motive to lie; see part III of this opinion; the similarities between their testimony and Perry’s account are significant and tend to diminish the likelihood that Perry’s recollection of the shooting was affected by her use of cocaine. Furthermore, the most important element of her testimony — her identification of the defendant as the shooter — was corroborated by the statement given to the police by the defendant’s girlfriend, June Davis, in which she reported that the defendant had admitted to the shootings shortly after they occurred. Finally, the state also introduced strong corroborative proof of the defendant’s guilt. Specifically, the state’s evidence established that the defendant had admitted to having owned an “SKS” Soviet-type assault rifle, a search of the defendant’s home the day after the shootings uncovered live 7.62 mm by 0.39 caliber ammunition, and a search of the defendant’s car after the shootings revealed shell casings of the same type.

Second, as we have already indicated, the jury was aware of Perry’s drug use, her heavy consumption of cocaine shortly before the shooting and her record of multiple felony convictions. Although Perry testified that she no longer felt the effects of the cocaine at the time of the shooting, she also testified that she did not initially realize that she had been shot and that at first she felt no pain. Moreover, the results of an electrocardiogram (EKG) taken shortly after Perry’s admission to the hospital indicated that she may have been under the influence of drugs at that time, while an EKG taken several days later gave no such indication.

Thus, although the jury was not aware of the exact nature and extent of the possible impairment to Perry’s cognitive abilities stemming from her use of cocaine prior to the shootings, the defendant was able to adduce ample evidence tending to impugn her reliability as a witness. In light of the fact that Perry’s account of the incident was also substantially corroborated, both by eyewitness testimony and by circumstantial evidence, we conclude that the defendant has not met his burden of demonstrating that it is more probable than not that the erroneous exclusion of Gardner’s testimony affected the outcome of the case.

II

The defendant next asserts that the trial court improperly precluded him from eliciting certain expert medical testimony regarding June Davis, another state’s witness, on the ground that the testimony he sought to adduce was protected by the psychiatrist-patient privilege. General Statutes §§ 52-146d through 52-146j. We disagree.

The following additional facts are relevant to our review of this claim. Davis, the defendant’s girlfriend, testified for the state. On December 14, 1992, she told the Norwalk police that the defendant, upon arriving at her home shortly after the shootings, had admitted to firing the shots that struck McCrae and Perry. At trial, however, Davis testified that she had incorrectly reported the defendant’s statement to her and that the defendant had, in fact, told her only that he had been in the car with the person who actually fired the shots.

On cross-examination, the defendant attacked Davis’ credibility by eliciting testimony about her use of alcohol and drugs immediately before and after the defendant had arrived at her home. Davis testified that earlier in the evening, she had consumed ten beers and some peppermint schnapps, and that she had smoked a couple of marijuana cigarettes before the defendant’s arrival. She also testified that her recollection of the evening was hazy and that she occasionally suffered blackouts when she drank alcohol. Davis further stated that she suffered from Hashimoto’s thyroiditis and chronic panic phobia and that her physician had prescribed 0.25 mg of Xanax, to be taken up to five times a day, for her panic disorder. Finally, Davis testified that prior to giving her statement to the police, she had consumed three or four Xanax and some alcohol.

The two police officers to whom Davis gave her statement also testified for the state. They indicated that at the time Davis spoke to them, she did not appear impaired, she did not smell of liquor and there was no other indication that she was under the influence of drugs or alcohol. In addition, Davis’ mother and a friend of Davis’ both testified that Davis was a heavy drinker who often appeared sober even after she had consumed excessive quantities of alcohol.

During the defense case, the defendant presented the testimony of Carl Mueller, a psychiatrist. Mueller testified that he had received Davis’ medical records from her treating physician, that he had reviewed those records, and that he had personally examined Davis prior to her trial testimony. Before the defendant could question Mueller further concerning any conclusions he may have drawn regarding Davis’ medical condition, the trial court, sua sponte and outside the jury’s presence, inquired of counsel whether Davis, who had returned to her home outside of the United States after completing her trial testimony, had waived her right to confidentiality under §§ 52-146d through 52-146j. The court was apprised that, although Davis had apparently signed a release for her medical records and was aware that her examination by Mueller was for purposes of the defendant’s trial, she had never expressly waived her confidentiality rights in open court. In light of these representations, the trial court concluded that Davis’ willingness to submit to an examination by Mueller after having been informed of the reason for the examination was insufficient to constitute a waiver of the psychiatrist-patient privilege. Accordingly, the court precluded Mueller from testifying about anything he had learned as a result of his examination of Davis. Mueller was permitted, however, to testify generally about the effects of alcohol and Xanax on one who suffers from a thyroid condition such as Davis.’ The trial court also ruled that Mueller could testify regarding what he had learned about Davis’ thyroid condition as a result of his review of her medical records.

Mueller then testified that Davis’ thyroid condition enabled her to tolerate large amounts of alcohol without displaying the usual symptoms attendant to excessive alcohol consumption. Further, he explained that Xanax impairs cognition and memory, and that when used with alcohol, its effect on cognition is very significant, resulting in substantial impairment of one’s ability to retain and remember facts.

The defendant claims that any information imparted by Davis to Mueller during his examination of her is not protected by the psychiatrist-patient privilege because any such communications were not undertaken within the framework of a therapeutic relationship as required by Bieluch v. Bieluch, 190 Conn. 813, 819, 462 A.2d 1060 (1983). The state, on the other hand, contends that the defendant’s claim must be rejected in light of our holding in State v. Toste, 178 Conn. 626, 629-30, 424 A.2d 293 (1979), wherein we concluded that communications between a psychiatrist and a patient for the purpose of rendering a diagnosis are privileged unless those communications were undertaken pursuant to a court order; see General Statutes § 52-146f (4); or the witness has expressly waived the privilege.

We need not today resolve any possible tension between our holdings in Tosté and Bieluch because our review of the record reveals that the trial court’s ruling did not preclude the defendant from introducing any relevant evidence. Mueller gave extensive testimony about the effect of Xanax, the combined effects of Xanax and alcohol and the effects of the two substances on a person suffering from Hashimoto’s thyroiditis. Mueller also testified, on the basis of his review of Davis’ medical records, that she suffered from Hashimoto’s thyroiditis. Thus, the only testimony that Mueller was precluded from giving was the extent to which his own examination of Davis corroborated his conclusion, drawn from her records, that she was afflicted with thyroiditis. The state, however, never contested Mueller’s diagnosis or the fact that Davis suffered from a thyroid condition. Thus, the record is clear that the defendant was able to establish through Mueller all of the material facts regarding Davis’ medical condition that he would otherwise have been able to adduce had the trial court placed no limitation on Mueller’s testimony. We conclude, therefore, that even if the trial court improperly precluded Mueller from testifying as to the information that he gleaned as a result of his examination of Davis, any such impropriety could not possibly have been harmful to the defendant.

Ill

The defendant next asserts that the trial court improperly precluded him from eliciting testimony that would have tended to establish Lofton’s motive for lying. The defendant claims error both in the trial court’s restriction of his cross-examination of Lofton and in the court’s exclusion of certain testimony by the defendant. We are not persuaded.

Certain additional facts are necessary to an understanding of our resolution of this issue. During the state’s case-in-chief, Atkinson testified that he was a lieutenant in the Roots Brotherhood gang. He indicated that he had known Lofton all his life, but that he was unaware whether Lofton was a member of the gang. Lofton testified that he was a member of the gang and that Atkinson was aware of that fact, but that he was unaware that Atkinson was a member. During his cross-examination of Lofton, the defendant attempted to establish Lofton’s motive to he about who had actually fired the shots by inquiring about the consequences of one gang member informing on another. The trial court sustained the state’s objection on relevancy grounds, noting that because no evidence had yet been presented regarding the defense theory that Atkinson, and not the defendant, was the shooter, there was as yet no basis to assert that Lofton was lying and, accordingly, it was premature to establish any purported motive for his doing so. The defendant then requested that Lofton be made available to testify as a defense witness following the defendant’s testimony. The state agreed to this request.

The defendant thereafter testified that although he had been present in the car when the shots were fired, it was Atkinson, and not he, who fired the rifle. The defendant also sought to testify about the organization and practices of the Roots Brotherhood gang for the purpose of establishing that Lofton, as a member of that gang, had a motive to exculpate Atkinson and to inculpate the defendant. The trial court, however, precluded the defendant from testifying about the Roots Brotherhood gang on the ground that the defendant’s knowledge about the group was based solely on hearsay.

After the defendant testified, Lofton was recalled as a defense witness, but he was asked only about Atkinson’s home address at the time of the shooting. The defendant did not inquire about gang mores or otherwise seek to establish Lofton’s motive to lie.

“The sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation in testifying. Greene v. McElroy, 360 U.S. 474, 496, 79 S. Ct. 1400, 3 L. Ed. 2d 1377 (1959). Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. State v. Lubesky, 195 Conn. 475, 481-82, 488 A.2d 1239 (1985).” (Citations omitted; internal quotation marks omitted.) State v. Colton, 227 Conn. 231, 248-49, 630 A.2d 577 (1993).

“The confrontation clause does not, however, suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. . . . Only relevant evidence may be elicited through cross-examination. ...” (Citations omitted; internal quotation marks omitted.) State v. Barnes, supra, 232 Conn. 746. Thus, “[f]rom early times, it has consistently been held that it rests within the judicial discretion of the trial court whether to admit the impeaching statement where no foundation has been laid. . . . The trial court is vested with a liberal discretion as to how the inquiry should be conducted in any given case.” (Citation omitted; internal quotation marks omitted.) State v. Williams, 204 Conn. 523, 534, 529 A.2d 653 (1987); State v. Townsend, 167 Conn. 539, 560, 356 A.2d 125, cert. denied, 423 U.S. 846, 96 S. Ct. 84, 46 L. Ed. 2d 67 (1975); State v. Mahmood, 158 Conn. 536, 540, 265 A.2d 83 (1969); see also State v. Plaza, 23 Conn. App. 543, 548, 583 A.2d 925 (1990) (“[ijmpeachment of a witness for bias is a matter of right, but where no foundation has been laid by cross-examination of the witness who is under attack for bias, the decision to admit impeaching evidence is within the discretion of the court”), cert. denied, 217 Conn. 811, 587 A.2d 153 (1991). Moreover, it is well settled that questions of relevance are committed to the sound discretion of the trial court. State v. Weidenhof, 205 Conn. 262, 277, 533 A.2d 545 (1987).

The defendant contends that the trial court violated his confrontation clause rights by hmiting his cross-examination into Lofton’s possible motive to lie. This argument, however, reflects a fundamental misunderstanding of the trial court’s ruling. The trial court concluded only that the defendant had not as yet laid the proper foundation for such cross-examination; at no time did the court indicate that the defendant was prohibited from renewing that line of questioning at an appropriate time. Thus, the record is unambiguous that the ruling of the trial court was a preliminary one, subject to reconsideration if and when the defendant established the relevance of the testimony that he sought to adduce from Lofton. Because the defendant, upon recalling Lofton to testify, did not question him about his gang involvement, we can conclude only that the defendant chose not to pursue this line of inquiry. Furthermore, the defendant has advanced no argument to convince us that the trial court abused its discretion by requiring that the defendant establish a proper foundation before eliciting testimony from Lofton about his gang-related activities. Accordingly, the defendant’s failure to renew his request after he had presented some evidence that Atkinson, and not the defendant himself, had fired the weapon, is fatal to his claim. See State v. Johnson, 214 Conn. 161, 169-70, 571 A.2d 79 (1990).

The defendant also maintains that the trial court improperly precluded him from testifying about the organization and operation of the Roots Brotherhood gang and, specifically, about the likelihood that the gang would retaliate against a member who provided information or testimony about a fellow member. We disagree. The trial court excluded the testimony not on relevancy grounds but, rather, because the defendant had no firsthand or independent knowledge of the gang or its activities. Indeed, the defendant does not contest the fact that his proffered testimony about gang practices was predicated on hearsay information. Evidence, though relevant, must still comport with the rules of evidence to be admissible. See, e.g., State v. Alvarez, 216 Conn. 301, 306, 579 A.2d 515 (1990). We conclude, therefore, that the trial court did not abuse its discretion in refusing to admit as hearsay this portion of the defendant’s proffered testimony.

IV

The defendant’s final argument is that the trial court improperly denied his request to instruct the jury on reckless endangerment; General Statutes § 53a-63; as a lesser included offense of attempted murder. We reject this claim also.

In his request to charge, the defendant sought juiy instructions on manslaughter in the first degree; General Statutes § 53a-55 (a) (1) and (3); as a lesser included offense of murder, and reckless endangerment in the first degree as a lesser included offense of attempted murder. Although the trial court granted the former request, it denied the latter, noting that this court has never required such an instruction.

In its charge to the jury, the trial court, after explaining the crime of murder, stated that “[i]f, however, you find the defendant not guilty of the crime of murder as charged in the first count, you should further consider whether or not the state has established the elements. necessary for a finding of guilty as to the lesser included offense of intentional manslaughter in the first degree beyond a reasonable doubt.” Following an explication of the elements of that crime, the court continued: “If you find the defendant not guilty of the crime of intentional manslaughter in the first degree, with regard to the death of Barbara McCrae, you may consider whether or not the state has proven the defendant guilty of the lesser crime of manslaughter in the first degree by reason of reckless indifference.”

“The law governing the right of a defendant to an instruction on a lesser offense than that charged by the state is well established. ‘A defendant is entitled to an instruction on a lesser offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.’ [State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980)].” State v. Chance, 236 Conn. 31, 54-55, 671 A.2d 323 (1996).

In State v. Rodriguez, 180 Conn. 382, 407, 429 A.2d 919 (1980), we held that, in the context of a murder charge, “ [¶] or purposes of the second condition of Whistnant ... an offense that would be a lesser included offense but for its requirement of a less culpable state of mind than that required for the greater, will be deemed a lesser included offense.” See also State v. Smith, 185 Conn. 63, 77, 441 A.2d 84 (1981) (applying rationale to manslaughter and assault charges). The defendant claims that, in light of our holdings in Rodriguez and Smith, the trial court should have instructed the jury on reckless endangerment as a lesser included offense of attempted murder. We disagree.

As the Appellate Court correctly stated in State v. Palmer, 8 Conn. App. 496, 504, 513 A.2d 738, cert. denied, 201 Conn. 808, 515 A.2d 380 (1986), it is possible to commit the crime of attempted murder without also committing the offense of reckless endangerment. See also People v. Ramirez, 55 N.Y.2d 708, 710, 431 N.E.2d 623, 447 N.Y.S.2d 138 (1981). Notwithstanding our limited liberalization of Whistnant in Rodriguez and Smith, we have never abandoned the general rule that one crime is not a lesser included offense of another if the greater can be committed without a simultaneous commission of the lesser. See, e.g., State v. Franko, 199 Conn. 481, 494, 508 A.2d 22 (1986); State v. MacFarlane, 188 Conn. 542, 548, 450 A.2d 374 (1982). Indeed, we recently rejected an invitation to liberalize Whistnant further in State v. Chance, supra, 236 Conn. 53-56.

Furthermore, even if we were persuaded by the defendant’s argument, reversal of his conviction for attempted murder would not be warranted in this case because we are satisfied that the jury would have reached the same result on that count even if it had received an instruction on reckless endangerment. There is nothing in the trial record to indicate, and the defendant does not claim, that the defendant had one state of mind relative to the shooting of McCrae and a different state of mind relative to the shooting of Perry. Although the jury was instructed with regard to the murder charge that it could convict the defendant of manslaughter under § 53a-55 (a) (3) — a crime for which the state of mind is recklessness — the jury nevertheless unanimously agreed that the state had established the defendant’s intent to kill. It cannot reasonably be contended, then, that the jury would have reached a different result in its deliberation on the attempted murder charge, even if it had been instructed on reckless endangerment. Cf. State v. Hall, 213 Conn. 579, 589, 569 A.2d 534 (1990) (failure to give self-defense instruction on lesser charge not harmful if jury rejected defense in considering greater charge).

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-54a provides in relevant part: “(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”
      General Statutes § 53a-49 (a) provides: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       The defendant appealed directly to this court pursuant to General Statutes § 51-199 (b), which provides in relevant part: “The following matters shall be taken directly to the supreme court ... (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony . . . for which the maximum sentence which may be imposed exceeds twenty years . . . .”

       The defendant was sentenced to a term of life imprisonment on the murder count and to a concurrent prison term of twenty years on the attempted murder count.

       A “cookie” is street parlance for a small unit of crack cocaine.

       On direct, examination, Perry explained the term “base house”: “You go there to do your drugs. It’s like a spot you can go and get high. And, what you do is you give the person that lives there some of what you have so he’ll let you stay there and get high. So, that’s what I did. I gave him some of what I had, and I stayed there and I got high.”

       Gardner, who has a doctor of philosophy degree in neuroscience and physiological psychology, is a professor of psychiatry and neuroscience at the Albert Einstein College of Medicine in New York City. The state did not challenge his qualifications as an expert.

       The trial court, noting that the only testimony concerning the amount and quality of the cocaine ingested by Perry on the evening of the shooting had come from Perry herself, concluded that it would be inappropriate for Gardner to rely on certain portions of Perry’s trial testimony in order to impeach her on another aspect of her testimony, namely, her identification of the defendant as the shooter. We express no view as to the propriety of this determination.

       On appeal, as at trial, the state does not contend that Gardner’s testimony was properly excluded because it would not have assisted the jury to understand the general effect of cocaine on cognition. Rather, the state again focuses exclusively on Gardner’s failure to testify that it is more probable than not that a person under the influence of cocaine will suffer hallucinations.

       Because Gardner testified that it was more likely than not that, at the time of the shooting, Perry suffered from a cognitive impairment brought on by the ingestion of cocaine, we need not decide whether, or in what circumstances, such testimony might have been admissible even if Gardner had been unable to say that the probability of cognitive impairment due to cocaine use exceeds 50 percent.

       Although at trial Davis recanted this aspect of her statement, she did not deny initially having told the police that the defendant had admitted to the shootings. See part II of this opinion.

       The defendant, at trial, claimed to have sold that weapon prior to the shootings.

       It is noteworthy that the defendant emphasized these facts during his closing argument to the jury.

       General Statutes § 52-146d provides in relevant part: “Privileged communications between psychiatrist and patient. Definitions. As used in sections 52-146d to 52-146i, inclusive . . .
      “(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 . . .
      “(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 § 52-146e provides: “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 52-1461' to 52-146i, inclusive, no person may disclose or transmit any communications and records or tlie 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.”

       The state did not challenge the expert qualifications of Mueller, a board certified psychiatrist and professor of medicine at Yale University School of Medicine.

       Davis had signed a release authorizing her treating physician to provide Mueller with copies of her medical records, and her physician did so.

       General Statutes § 52-146i provides in relevant part: “Consent not required for disclosure, when. Consent of the patient shall not be required for the disclosure or transmission of communications or records of the patient in the following situations as specifically limited ....
      “(4) Communications made to or records made by a psychiatrist in the course of apsychiatric examination ordered by a court or made in connection with the application for the appointment of a conservator by the probate court for good cause shown may be disclosed at judicial or administrative proceedings in which the patient is a party, or in which the question of his incompetence because of mental illness is an issue, or in appropriate pretrial proceedings, provided the court finds that the patient has been informed before making the communications that any communications will not be confidential and provided the communications shall be admissible only on issues involving the patient’s mental condition. . . .”

       We note that although the trial court ultimately sustained the state’s objections to this line of inquiry, Lofton, in response to the defendant’s questions and before the state could interpose its objections, responded that there would be severe consequences to him if he informed on a fellow Roots Brotherhood member and that he would be terminated from the organization for crossing another gang member. Although the trial court sustained the state’s objections to these two responses, the state never requested that Lofton’s answers be stricken.

       Indeed, it is clear from the defendant’s request that Lofton remain available to testify for the defense after the defendant had himself testified that the defendant understood the preliminary nature of the court’s ruling.

       General Statutes § 53a-63 (a) provides: “A person is guilty of reckless endangerment in the first degree when, with extreme indifference to human life, he recklessly engages in conduct which creates a risk of serious physical injury to another person.”

       General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or . . . (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       Significantly, the jury was also instructed, under State v. Sawyer, 227 Conn. 566, 630 A.2d 1064 (1993), that it could not deliberate on any lesser offenses until it had unanimously concluded that the defendant was not guilty of murder. Although we have held that the improper failure to instruct on a lesser included offense is not harmless merely because the jury convicted the defendant of the greater offense; State v. Monte, 131 Conn. 134, 137, 38 A.2d 434 (1944); we have not had occasion to consider what effect, if any, a proper Sawyer instruction may have with respect to a claim under Monte. We need not address that specific question in this case.