source: Caselaw Access Project

author: MCDONALD, J. BERDON, J.,

license: Public Domain

text:
    STATE OF CONNECTICUT v. KIRK MCDOWELL
    (SC 15654)
    Borden, Berdon, Katz, Palmer and McDonald, Js.

      Argued May 28
    officially released August 26, 1997

      Mark Rademacher, assistant public defender, with whom was Carlos E. Candal, deputy assistant public defender, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were David Zagaja, deputy assistant state’s attorney, and, on the brief, James E. Thomas, state’s attorney, for the appellee (state).
   Opinion

MCDONALD, J.

The defendant, Kirk McDowell, appeals from the denial of a motion to dismiss. He claims that the state, because of common-law collateral estoppel and the constitutional protections against double jeopardy, may not prosecute him for an attempted robbery, criminal possession of a weapon or reckless endangerment when it has failed to prove a violation of probation based upon those charges. See State v. McDowell, 241 Conn. 413, 413-14, 696 A.2d 977 (1997). We reject the defendant’s claims and, therefore, we affirm the judgment of the trial court.

The following facts and procedural history are undisputed. The defendant was charged with attempted robbery in the first degree in violation of General Statutes §§ 53a-134 and 53a-49, criminal possession of a weapon in violation of General Statutes § 53a-217, threatening in violation of General Statutes § 53a-62 and reckless endangerment in the first degree in violation of General Statutes § 53a-63. These charges stemmed from an incident at Mitchell’s Grocery in the city of Hartford. The state also sought to revoke the defendant’s probation on the basis of that incident.

At the defendant’s revocation hearing, the state sought to prove that the defendant had been carrying a gun and had used and threatened to use immediate physical force to obtain money. After the hearing, the trial court found that the state had proved by a preponderance of the evidence that the defendant had violated his probation. Upon the defendant’s request for clarification of this finding, the court held that the defendant had violated his probation by threatening an employee of the grocery store, by committing a breach of the peace and by committing an assault. See State v. McDowell, supra, 241 Conn. 414. The court further found, however, that the state had not presented sufficient evidence to establish that a robbery or an attempted larceny had occurred, and did not address the charges of criminal possession of a weapon and reckless endangerment. The trial court thereupon extended the defendant’s probation for one year.

The defendant thereafter moved to dismiss the criminal charges. He argued that collateral estoppel bars the state from retrying factual issues decided at the revocation hearing.

The trial court denied the defendant’s motion. The court held that the issues in the criminal case were not fully and fairly litigated in the revocation hearing because the state lacked the incentive to present its best evidence at that hearing. The trial court also concluded that no final judgment was rendered at the revocation hearing as to the robbery charge. The defendant appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4024 and General Statutes § 51-199 (c).

I

The defendant argues that his trial on the criminal charges would violate the double jeopardy clause. We find no merit to the defendant’s claim.

The defendant claims that jeopardy attaches in a revocation hearing because it is essentially a criminal proceeding. He argues that the revocation of probation is essentially punitive, rather than remedial, because a consequence of a probation violation may be incarceration. The defendant further argues that the basis of the punishment is the new criminal conduct and not the prior conduct for which he had already been sentenced. He thereby attempts to distinguish State v. Smith, 207 Conn. 152, 177, 540 A.2d 679 (1988), which held that “[Revocation hearings are not concerned with punishment or retribution.”

The defendant also argues that because of the policy concerns for judicial economy, public perception of inconsistent verdicts, and vexatious litigation, this court should eschew labels and look at the substance of the revocation hearing. In support of this argument, the defendant cites Breed v. Jones, 421 U.S. 519, 95 S. Ct. 1779, 44 L. Ed. 2d 346 (1975). In Breed, the United States Supreme Court prohibited the retrial of a defendant as an adult who previously had been found delinquent at a juvenile hearing. Id., 541. The court thereby rejected the prosecution’s contention that the rehabilitative purpose of the juvenile proceeding should control rather than its criminal nature. Id., 535.

In sum, the defendant argues that the revocation hearing and the criminal trial are essentially similar and, therefore, the principles of double jeopardy are applicable. He asserts that a revocation proceeding is tantamount to a criminal trial because in both proceedings a defendant has a right to counsel, to an arrest by warrant, to bail, to notice of the charges, to cross-examine witnesses, and to call one’s own witnesses. See General Statutes § 53a-32; State v. Roberson, 165 Conn. 73, 81-82, 327 A.2d 556 (1973). We disagree with the defendant.

Jeopardy attaches only to proceedings which are “ ‘essentially criminal.’ ” Breed v. Jones, supra, 421 U.S. 528. The United States Supreme Court and this court have held that revocation hearings are not criminal proceedings. Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972); State v. Smith, supra, 207 Conn. 176.

In State v. Smith, supra, 207 Conn. 176-78, this court concluded that the double jeopardy clause did not bar violation of probation hearings following a criminal conviction for three reasons. First, “[r]evocation hearings are not concerned with punishment or retribution.” Id., 177. Rather, probation seeks “to normalize the probationer into society as soon as reasonably possible,” and the revocation hearing “presents the ultimate question whether the probationer is still a ‘good risk’ to be continued in that status.” Id. Second, any punishment involved is “attributable to the crime for which [the defendant] was originally convicted and sentenced,” rather than to the charges on which the violation of probation is based. Id., 178. Third, the revocation hearing is less formal than the criminal trial, and, in that hearing, the state need only prove its case by a preponderance of the evidence. Id., 176-77; see State v. Davis, 229 Conn. 285, 302, 641 A.2d 370 (1994). In Smith, we considered the differences in the state’s burden of proof to be significant. State v. Smith, supra, 177.

This case differs from Smith only in that we must here decide whether jeopardy attaches at a revocation hearing to bar a trial of the new criminal charges. We hold that the three rationales of Smith apply equally here and that, therefore, the double jeopardy clause does not prevent the state from prosecuting the defendant.

The purpose of a revocation hearing is to determine whether the defendant is a good risk for continued probation and not to punish him for a new criminal offense. Id., 177-78. This is central to the holding in Smith, which tracks any punitive aspect of the revocation of probation back to the original offense for which the defendant had been convicted. “Revocation is a continuing consequence of the original conviction from which probation was granted.” Id., 178. Moreover, as the court in Smith recognizes, a revocation hearing and a criminal trial differ in form and procedure. Revocation proceedings, although they are adversarial, are less formal than criminal proceedings and the technical rules of procedure do not apply. Id., 176-77. At a revocation proceeding the state must meet a burden of a preponderance of the evidence while at a criminal trial it must prove its case beyond a reasonable doubt. Id., 177. The revocation hearing is, thus, not essentially criminal.

We here continue to follow the clear holding in Smith that jeopardy does not attach at the revocation hearing. Accordingly, we hold that the double jeopardy clause does not bar the prosecution of the charges pending against the defendant.

II

The defendant also claims that the common-law doctrine of collateral estoppel should preclude the state from relitigating the same issues litigated in the revocation hearing. We find no merit to the defendant’s claim.

The defendant argues that the factual issues regarding the incident at Mitchell’s Grocery were necessarily decided at the revocation hearing, that they were fully and fairly litigated and that a final judgment was rendered in his favor. The defendant also argues that the policies giving rise to collateral estoppel support his position. He claims that the furtherance of judicial economy, the promotion of public confidence and the prevention of harassing litigation support his position.

The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality. State v. Ellis, 197 Conn. 436, 466, 497 A.2d 974 (1985), on appeal after remand sub nom. State v. Paradise, 213 Conn. 388, 567 A.2d 1221 (1990). Collateral estoppel “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970). Issue preclusion arises when an issue “ ‘is actually litigated and determined by a valid and final judgment, and that determination is essential to the judgment.’ ” Scalzo v. Danbury, 224 Conn. 124, 128, 617 A.2d 440 (1992). Also, the issue “ ‘must have been fully and fairly litigated in the first action.’ ” Virgo v. Lyons, 209 Conn. 497, 501, 551 A.2d 1243 (1988).

The decisions of other courts provide us guidance. Some states have held that where “a specific finding on a material matter of fact [is] fully litigated” at the revocation proceeding, the state is estopped from relitigating the issue. State v. Chase, 588 A.2d 120, 123 (R.I. 1991); Ex parte Tarver, 725 S.W.2d 195, 200 (Tex. Crim. App. 1986); see also People v. Bone, 82 Ill. 2d 282, 412 N.E.2d 444 (1980); State v. Donovan, 305 Or. 332, 751 P.2d 1109 (1988). This reasoning does not persuade us. The court in State v. Chase, supra, 123, held that if the state had notice and the opportunity to litigate fully and fairly an issue at the revocation proceeding, it was sufficient to preclude the subsequent relitigation in a criminal trial. See State v. Donovan, supra, 336. This conclusion ignores the reality that the state in this case had no incentive to present its best evidence at the revocation proceeding where there was a lower standard of proof. Moreover, if the state proceeds with a revocation proceeding before its criminal investigation is complete, evidence may be acquired after the revocation proceeding and before the criminal trial. Ex parte Tarver, supra, 195, similarly fails to address this issue.

We follow the better reasoning of other courts that have addressed this issue and have concluded that collateral estoppel does not apply to issues raised at a revocation hearing and later forming the basis of a criminal trial. United States v. Miller, 797 F.2d 336 (6th Cir. 1986); Lucido v. Superior Court, 51 Cal. 3d 335, 795 P.2d 1223, 272 Cal. Rptr. 767 (1990), cert. denied, 500 U.S. 920, 111 S. Ct. 2021, 114 L. Ed. 2d 107 (1991); People v. Fagan, 104 App. Div. 2d 252, 483 N.Y.S.2d 489 (1984), aff'd, 66 N.Y.2d 815, 489 N.E.2d 222, 498 N.Y.S.2d 335 (1985); Commonwealth v. Cosgrove, 427 Pa. Super. 553, 629 A.2d 1007 (1993); State v. Dupard, 93 Wash. 2d 268, 609 P.2d 961 (1980).

The New York Court of Appeals in People v. Fagan, supra, 66 N.Y.2d 815, refused to apply collateral estoppel even if its “formal prerequisites” were met. The court reasoned that “[t]he correct determination of guilt or innocence is paramount in criminal cases . . . and the People’s incentive to litigate in a felony prosecution would presumably be stronger than in a parole revocation proceeding . . . .” (Citations omitted.) Id.

The California Supreme Court reasoned that the differing purposes of the criminal justice and probation systems should control. Lucido v. Superior Court, supra, 51 Cal. 3d 348-49. “Preemption of trial of a new charge by a revocation decision designed to perform a wholly independent social and legal task would undermine the function of the criminal trial process as the intended forum for ultimate determinations as to guilt or innocence of newly alleged crimes.” Id., 349. The Pennsylvania Superior Court echoed this reasoning. “It is only through a criminal trial at which the defendant is presumed innocent and the Commonwealth bears the burden of proof of guilt beyond a reasonable doubt that contested issues of criminal culpability are determined with finality. To cede this responsibility to a setting that does not adhere to the procedural safeguards necessary for a fair adjudication of guilt, such as a probation revocation hearing, would result in a perversion of the criminal justice system.” Commonwealth v. Cosgrove, supra, 427 Pa. Super. 560.

Our own cases that discuss the policy behind collateral estoppel recognize these same principles. We have held that in criminal matters, judicial economy must give way to the demand for the truth. “[T]he essentially public objectives of the criminal law advise against the uncritical adoption of [res judicata] concepts.” State v. Ellis, supra, 197 Conn. 471. A court’s interest in finality, therefore, must be balanced against the needs of criminal justice. Finality “ ‘is less relevant in criminal cases where the pre-eminent concern is to reach a correct result and where other considerations peculiar to criminal prosecutions may outweigh the need to avoid repetitive litigation ....’” Id., 470, quoting People v. Plevy, 52 N.Y.2d 58, 64, 417 N.E.2d 518, 436 N.Y.S.2d 224 (1980).

Moreover, we must consider the importance of public confidence in our criminal justice system. State v. Ellis, supra, 197 Conn. 466. From the birth of this republic, only criminal trials have been used to decide matters of guilt or innocence. The people continue to look to that process. Accordingly, collateral estoppel arising from a probation revocation hearing should not bar such a criminal trial.

The judgment is affirmed.

In this opinion BORDEN, KATZ and PALMER, Js., concurred.

BERDON, J.,

dissenting. I disagree with part II of the majority opinion because the doctrine of collateral estoppel (issue preclusion) should bar the state from relitigating the issues already resolved by the trial court at the defendant’s violation of probation hearing. Specifically, the trial court found that the state had failed to prove by a fair preponderance of the evidence that the defendant had committed the felonies of armed robbery, criminal possession of a weapon, and the misdemeanor of reckless endangerment in the first degree. Because of the trial court’s findings at the violation of probation hearing, the defendant claims that he cannot now be prosecuted for those crimes because the state is collaterally estopped from doing so. The majority does not, and cannot, dispute that the requirements for collateral estoppel have been met, yet it rejects applying collateral estoppel based on certain public policy reasons. I am concerned with the majority’s reasoning because, in my view, the public policies underlying collateral estoppel militate in favor of the application of that doctrine in this case.

I begin by stating that I am deeply troubled by the majority’s reasoning that allows prosecutors to conduct fishing expeditions by indicating that “the state in this case had no incentive to present its best evidence at the revocation proceeding where there was a lower standard of proof.” According to the majority, the state can put on minimal evidence, but the defendant would be placed in the unenviable position of jeopardizing his criminal trial by giving the state a preview of his defense if he wants to contest the revocation proceeding, a right he surely holds. Second, the majority colors this case with the argument that public confidence requires that guilt or innocence only be determined in criminal trials. What the majority misses, however, is that “public confidence in the legislative remedy administered by the courts will not be promoted by allowing the [state] to treat the revocation hearing as a ‘Heads I win, tails I flip again’ proposition.” (Emphasis added.) Lucido v. Superior Court, 51 Cal. 3d 335, 367, 795 P.2d 1223, 272 Cal. Rptr. 767 (1990) (Broussard, J., dissenting), cert. denied, 500 U.S. 920, 111 S. Ct. 2021, 114 L. Ed. 2d 107 (1991).

The following facts are relevant to this appeal. “The defendant was arrested on October 19, 1996, and charged . . . with the misdemeanors of threatening in violation of General Statutes § 53a-62 and reckless endangerment in the first degree in violation of General Statutes § 53a-63, and the felonies of criminal possession of a weapon in violation of General Statutes § 53a-217 and attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-134 and 53a-49. . . .

“Because the defendant was on probation for the sale of narcotics, an offense for which he was convicted in 1991, the state sought to revoke his probation based upon the above charges. On January 30 and February 3, 1997, the trial court heard evidence with respect to those alleged crimes .... The trial court found that the state had failed to prove by a fair preponderance of the evidence that the defendant had committed the felonies of attempted robbery and the lesser included offense of attempted larceny, but did find sufficient evidence to support a violation of probation based upon the commission of the misdemeanors of threatening, assault in the third degree and breach of the peace. The trial court, however, refused to revoke the defendant’s probation, but, instead, extended it for one year. The state, notwithstanding the court’s finding that it failed to prove that the defendant had committed the felonies by a fair preponderance of the evidence in order to prove a violation of his probation, continues with the prosecution of these crimes.” (Emphasis in original.) State v. McDowell, 241 Conn. 413, 417-18, 696 A.2d 977 (1997) (Berdon, J., dissenting).

“Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment. . . . An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined. . . . An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered. ... If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action. Findings on nonessential issues usually have the characteristics of dicta.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Jackson v. R. G. Whipple, Inc., 225 Conn. 705, 714-15, 627 A.2d 374 (1993). In sum, collateral estoppel “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970). I conclude that the facts of this case meet this criteria, and the majority makes no attempt to dispute that they do not.

Several courts have recognized that collateral estoppel bars the state from relitigating issues where the trial court made specific findings on the issue in question at a previous probation revocation proceeding. See, e.g., People v. Bone, 82 Ill. 2d 282, 288, 412 N.E.2d 444 (1980) (in deciding whether collateral estoppel bars prosecution subsequent to probation revocation hearing, “[t]he question to be determined is whether an issue of ultimate fact was decided in the prior revocation proceeding which was determinative of the issues in the criminal prosecution for the offenses committed,” although court found that collateral estoppel did not bar prosecution because “[a]n examination of the record . . . showfed] that no such issue of ultimate fact was determined”); State v. Donovan, 305 Or. 332, 342-43, 751 P.2d 1109 (1988) (court concluded that collateral estoppel did not bar subsequent prosecution because trial judge in that case made no findings but indicated that “if the state elects and a judge agrees to conduct a probation revocation hearing that concerns any of the elements of a new offense, then collateral estoppel . . . will apply against the state if the judge finds that a necessary element is not proven at the hearing. If, for instance, a probationer is charged with armed robbery and the alleged probation violation is carrying a weapon at the time of the robbery and the probation hearing judge determines that no weapon was involved, then the state would be collaterally estopped from proving armed robbery in a subsequent trial. . . . An issue is precluded when a specific finding is made, not when the issue is not resolved for lack of a finding.” [Citations omitted; internal quotation marks omitted.]); State v. Chase, 588 A.2d 120, 123 (R.I. 1991) (concluding that collateral estoppel precludes state from relitigating, in subsequent prosecution, finding from probation revocation hearing that defendant had not committed offense); Ex parte Tarver, 725 S.W.2d 195, 200 (Tex. Crim. App. 1986) (same).

Although recognizing Chase and Ex parte Tarver, the majority dismisses them as unpersuasive. I find their reasoning compelling. In Chase, under the circumstances of that case, the court concluded that the requirements for collateral estoppel had been met. The court indicated that “only a specific finding on a material matter of fact fully litigated at the probation-revocation hearing will collaterally estop the state from attempting to prove the same fact at trial. . . . The disposition of the instant case should encourage the state to initiate future probation-revocation proceedings with more concern for judicial economy. The state should not use a probation-revocation hearing asproving ground for its substantive case. Alternatively, the state may elect to bring a defendant to trial first and to institute the probation-revocation hearing after.” (Emphasis added.) State v. Chase, supra, 588 A.2d 123.

In Ex parte Tarver, supra, 725 S.W.2d 199, the court indicated that “[t]he questions to be asked are: Has a fact issue already been determined, adversely to the [s]tate, in a valid and final judgment between the same parties? Is the [s]tate now trying to relitigate the same fact issue?” In answer to those questions, the court stated that “ [t]he parties were the same as they would be in the [criminal] prosecution. The allegation the [s]tate sought to prove was identical. The hearing was before a [trial] judge as a finder of fact. The major difference between the two proceedings was the standard of proof, but it was the lower, ‘preponderance of the evidence’ standard the [s]tate failed to meet in the revocation hearing. Having failed to meet that burden, the [s]tate is now attempting to relitigate the same resolved fact issue, under a higher burden of proof.” (Emphasis in original.) Id. Stated another way, the court indicated that “[t]he [s]tate is not trying twice to prove [the] applicant guilty, because ‘guilt’ as such was not the issue in the probation revocation hearing. The [s]tate is attempting, however, to prove the fact that would lead to a finding of guilt, i.e., that [the] applicant committed the alleged assault, after once failing to prove that fact in a full hearing.” (Emphasis in original.) Id., 200. Here, the state is attempting to do just that.

The majority, in support of its decision to ignore the applicability of collateral estoppel, relies partially on Lucido v. Superior Court, supra, 51 Cal. 3d 335. I am unpersuaded by the majority opinion in Lucido because, in my view, the two dissents in that case hit the mark. After agreeing with the majority’s concession that the traditional prerequisites for the application of collateral estoppel were met in that case, Justice Mosk went on to state that “[w]e traditionally recognize three public policies underlying collateral estoppel, and each favors its application here. First, public confidence in the integrity of the judicial system is threatened when two tribunals render inconsistent judgments on the same facts involving the same parties. . . . When decisions are inconsistent, individuals have little incentive to rely on judicial action. . . . Collateral estoppel is intended to prevent . . . repetition, which not only results in inconsistent judgments but allows the [state], through sheer perseverance, to litigate and litigate until they, in their view, *get it right.' ” (Citations omitted; emphasis added.) Id., 355-56 (Mosk, J., dissenting). Justice Mosk stated that “[t]he second policy underlying collateral estoppel, interest injudicial economy, also is furthered when we forbid repetitive prosecution of a criminal defendant for the same alleged crime. . . . While one cannot dispute the importance of criminal trials for determining guilt or innocence, I believe the majority needlessly threaten[s] the due process rights of criminal defendants. If preserving the criminal trial as the exclusive forum for determining guilt or innocence is of transcendent importance — and often it is— the district attorney should proceed to such trial first, before he compels a defendant to defend himself against precisely the same factual allegations at an earlier revocation hearing. Once the People unilaterally decide to seek probation revocation on the criminal allegations before proceeding to trial, however, they should be bound by their failure to prove their allegations.” (Emphasis in original.) Id., 356-57 (Mosk, J., dissenting). The third public policy, as pointed out by Justice Mosk in his dissent, is that collateral estoppel prevents a person from being harassed by vexatious litigation. Id., 357.

In Lucido, Justice Broussard also dissented, and echoed some of the same sentiments as Justice Mosk. “When the state seeks to revoke a defendant’s probation because he committed a new criminal act, the judge will almost always have to decide as a question of fact whether the defendant committed that act. The role of the court in resolving such a contested issue of fact is identical to that of the jury at trial. When the judge actually makes an express factual finding after litigation of the issue, this is no different than a factual decision in any other context and collateral estoppel bars relitigation despite the different purposes and procedures at trial and at the hearing. . . . The majority would not be forced to distort the law of collateral estoppel if prosecutors would simply elect to proceed to trial first, allowing the probation revocation hearing to follow. . . . Any of the adverse policy consequences that the majority asserts might result from application of collateral estoppel in this case should not bar [application of the doctrine] where the state exercises its discretion to bring those consequences upon itself.” (Citations omitted; emphasis added.) Id., 365 (Broussard, J., dissenting).

In sum, not only does collateral estoppel clearly apply in this case because the formal requirements are met, but the public policies underlying the doctrine, previously noted, militate in favor, and not against, its application. The findings of the trial court at the violation of probation hearing, when considered in the context of what came to light during the hearing, demonstrate that the question of whether the defendant committed the crimes at issue have been resolved by the trial court with a resounding “no.” In this case, the trial court made specific findings that the state had failed to prove that the defendant had committed the crimes that the state is now seeking to prosecute. “The trial court, at the hearing, specifically found the following: ‘The court does not find that there has been a preponderance of the evidence to establish ... a reasonable belief that a robbery has occurred nor does the court believe by the preponderance of the credible evidence adduced that an attempted larceny has occurred, but the court is satisfied by the evidence that it is more likely than not that there was a threat and that there has been an assault and that there has been a breach of the peace.’ ” State v. McDowell, supra, 241 Conn. 421 (Berdon, J., dissenting). The state should be bound by those findings and the defendant’s motion to dismiss based upon collateral estoppel should have been granted.

Accordingly, for the reasons set forth herein, I dissent.

       The state does not contest that the denial of this motion to dismiss constitutes a final judgment. See State v. Aparo, 223 Conn. 384, 614 A.2d 401 (1992), cert. denied, 507 U.S. 972, 113 S. Ct. 1414, 1415, 122 L. Ed. 2d 785 (1993); State v. Powell, 186 Conn. 547, 552-53, 442 A.2d 939, cert. denied, 459 U.S. 838, 103 S. Ct. 85, 74 L. Ed. 2d 80 (1982).

       In 1991, the defendant had been sentenced to a term of probation on his conviction of the sale of narcotics. See State v. McDowell, supra, 241 Conn. 417 (Berdon, J., dissenting).

       The defendant conceded before the trial court, and has not argued otherwise to this court, that he can be tried on the threatening charge.

       In Ashe v. Swenson, 397 U.S. 436, 445, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970), the United States Supreme Court incorporated collateral estoppel into the double jeopardy clause of the fifth amendment to the United States constitution. Collateral estoppel, however, has constitutional significance only if jeopardy attaches at a proceeding. See Ohio v. Johnson, 467 U.S. 493, 500 n.9, 104 S. Ct. 2536, 81 L. Ed. 2d 425 (1984).

       The defendant raises the double jeopardy issue under the fifth amendment to the United States constitution and article first, § 9, of the constitution of Connecticut. The defendant fails, however, to provide an independent analysis of his state constitutional claim. Accordingly, we do not consider it. State v. Dyson, 238 Conn. 784, 794, 680 A.2d 1306 (1996).

       “While the trial court made no specific finding on the criminal possession of a weapon and the reckless endangerment charges, the trial court implicitly did not find that the defendant had committed those offenses because the court found only that, at most, it was more likely than not that the defendant had committed the misdemeanor offenses of threatening, assault in Hie third degree and breach of the peace.” State v. McDowell, 241 Conn. 413, 418 n.3, 696 A.2d 977 (1997) (Berdon, J., dissenting).

       I previously dissented in this court’s refusal to have the trial court reconsider the defendant’s motion to reduce his pretrial appearance bonds in light of certain considerations. See State v. McDowell, supra, 241 Conn. 415.

       If the violation of probation hearing was held subsequent to the trial on the crime charged, and the state secured a conviction, that conviction, of course, would support a violation of probation. See State v. March, 39 Conn. App. 267, 279, 664 A.2d 1157, cert. denied, 235 Conn. 930, 667 A.2d 801 (1995) (affirming trial court’s decision to revoke defendant’s probation and stating that “[a]t the trial on [the] charges the jury found, beyond a reasonable doubt, that the defendant had committed attempted sexual assault in the first degree on a four year old child and risk of irqury to that child. The trial court, considering the evidence from the trial, made an independent determination, explicitly set forth in the record, that the defendant had violated his probation.”).

       At the violation of probation hearing, the defendant seriously undermined the state's allegations that the defendant had committed an attempted robbery with a handgun or that a handgun was used in the alleged dispute. First, no gun was ever recovered. Second, it came to light during cross-examination of the victim that he had never seen a handgun during the alleged dispute.

       See footnote 1 of this opinion.


author: MCDONALD, J.

text:
    STATE OF CONNECTICUT v. STEFON MORANT
    (SC 15194)
    Borden, Berdon, Norcott, Katz and McDonald, Js.

      Argued March 20
    officially released August 26, 1997

      Lauren Weisfeld, assistant public defender, for the appellant (defendant).

      Christopher T. Godialis, deputy assistant state’s attorney, with whom, on the brief, were Michael Dea,rington, state’s attorney, and David, P. Gold, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

MCDONALD, J.

The defendant, Stefon Morant, appeals from the judgment of conviction, after a jury trial, of two counts of felony murder in violation of General Statutes (Rev. to 1989) § 58a-54c. The trial court sentenced the defendant to thirty-five years imprisonment on each count, to run consecutively, for an effective sentence of seventy years. The defendant appeals from the judgment of conviction to this court pursuant to General Statutes § 51-199 (b) (3). The defendant claims that (1) the evidence was insufficient to support his conviction of the two counts of felony murder, (2) the trial court improperly refused to order a competency examination of the state’s key witness in abuse of its discretion and in violation of his federal and state constitutional rights to confrontation, (3) the trial court improperly instructed the jury regarding his alibi witnesses, and (4) the trial court improperly instructed the jury on the concept of reasonable doubt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 1990, the defendant and Scott Lewis were partners engaged in the sale of drugs from a Clay Street house and on Exchange Street, both in New Haven. As part of this drug operation, Ricardo Turner stored drugs and cash in his second floor apartment at 634 Howard Avenue, New Haven. During the night of October 10 and the early morning hours of October 11, 1990, the defendant and Lewis were at the Clay Street house and discussed the possibility that Turner might take the money and leave. Ovil Ruiz and several other individuals who sold drugs for the defendant and Lewis were also present at the Clay Street house during this discussion.

Two handguns, a .357 caliber and a .38 caliber, were stored in the house. In the early morning hours of October 11, 1990, either the defendant or Lewis told Ruiz to get the guns, and Ruiz gave the guns to Lewis. The defendant, Lewis and Ruiz then proceeded to travel in Lewis’ automobile to Turner’s apartment on Howard Avenue. On the way, the defendant stated, “whatever happens, you know, keep it between us.” At the apartment, the defendant and Lewis exited the automobile and Ruiz got into the driver’s seat. Ruiz then waited in the car while the defendant and Lewis went inside. When the two of them entered the apartment house, the defendant was carrying the .38 caliber handgun and Lewis was carrying the .357 caliber handgun.

The defendant and Lewis forced their way into Turner’s apartment. They were in the apartment for thirty minutes when, shortly after 4 a.m., they fatally shot Turner and his roommate, Lamont Fields. Turner was shot in the head, the back and the side. The bullet that went into his side traveled through his body and into his left arm. Fields was shot twice in the back. One bullet passed through the floor and punctured a waterbed in the apartment below. All of the bullet fragments later recovered by police had been fired from a .357 caliber handgun.

The defendant and Lewis then ran out of the apartment, down the stairs, and into the waiting car. The defendant took from the apartment a bag that contained money, and Lewis took another bag that contained several ounces of cocaine. As they drove away from the scene, Lewis asked the defendant whether the defendant thought he, Lewis, had killed Turner and Fields. The defendant responded, “whatever happened, happened.”

In January, 1991, the defendant gave a statement to police in which he admitted that he was with Lewis during the early morning hours of October 11, 1990. He stated that Lewis was taking him home when Lewis stopped on Howard Avenue near the victims’ apartment. The defendant stated that Lewis said “he had to take care of some business” and would be right back, and that Lewis then entered the apartment building while the defendant waited in the car. The defendant further stated that Lewis was perspiring when he came running from the apartment building to the car five or ten minutes later.

The defendant also told police that Lewis sold narcotics and that, when he and Lewis stopped on Howard Avenue, he thought Lewis was going to take care of some drug-related business. The defendant stated that the next day he learned that there had been a murder on Howard Avenue, and that a few days later, Lewis told the defendant that Lewis “did what [he] had to do” because one of the victims had owed Lewis “a couple dollars.” The defendant further stated that at some later time he observed Lewis throw the gun that Lewis had used to commit the murders into the Mill River under the Chapel Street Bridge in New Haven.

I

The defendant claims that the evidence was insufficient to support his convictions of felony murder. The defendant was charged with committing a robbery with another person and in the course of and in furtherance of that robbery, the defendant or the other person caused the deaths of Turner and Fields. The defendant argues that the state’s evidence does not establish that he engaged in a robbery, and, therefore, that the state failed to prove an essential element of the felony murder charges. Specifically, the defendant argues that he cannot be convicted of committing of a robbery because the evidence establishes that the drugs and money that he and Lewis took from Turner’s apartment belonged to him and Lewis. We find no merit to the defendant’s claim.

In order to prove the commission of a robbery, the state must prove that the defendant used or threatened the use of force in the commission of a larceny. See General Statutes § 53a-133; State v. Croswell, 223 Conn. 243, 250, 612 A.2d 1174 (1992). “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .” (Emphasis added.) General Statutes § 53a-119. “An ‘owner’ means any person who has a right to possession superior to that of a taker, obtainer or withholder.” General Statutes § 53a-118 (a) (5); see State v. Taylor, 196 Conn. 225, 229, 492 A.2d 155 (1985).

We agree with the defendant that the evidence establishes that he and Lewis operated a drug business and that Turner stored the drugs and money in his apartment as a part of the business. The defendant further asserts, however, that he was the “owner” of the drugs and money taken from Turner’s apartment, and that he, therefore, could not commit larceny of his own property. We disagree.

The property in which the defendant claims an ownership interest is “contraband” as defined in General Statutes § 54-36a (1): “[A]ny property, the possession of which is prohibited by any provision of the general statutes . . . .” We note that we have never answered the precise question of whether a person may legally regain contraband from another’s possession. Although we recognize that General Statutes § 53a-118 (a) (1) could be read to include contraband under the definition of property; (“ ‘[property’ means any money, personal property ... or article of value of any kind”); we have serious doubts about allowing a person to claim a property interest in contraband, the possession of which is per se illegal. A person should not be allowed to vest himself with a possessory interest by crime or to invoke the law in order to disengage himself from the unlawfulness of his conduct. It is more reasonable to interpret § 53a-118 (a) (1) to preclude the defendant’s ownership of cocaine and the money made from its sale. See United States v. Jeffers, 342 U.S. 48, 52-54, 72 S. Ct. 93, 96 L. Ed. 59 (1951) (no property rights in contraband); United States v. Parks, 684 F.2d 1078, 1083 n.7 (5th Cir. 1982). We, therefore, conclude that the defendant here had no legal right to recover the cocaine or the money made from the sale of cocaine.

We further conclude that a person commits a robbery when he forcibly takes contraband from another person’s possession. We find that it would be contrary to our statutes and absurd to hold that the defendant cannot be convicted of robbery in the first degree when he takes contraband from another person. To hold that a person may use violence to recover contraband “would be to give our imprimatur to an act the completion of which is itself a criminal offense . . . .” Townsend v. United States, 549 A.2d 724, 727 n.6 (D.C. App. 1988). Several courts have held that a person may not use force to retake drugs and collect illegal debts from another person. Id.; Cates v. State, 21 Md. App. 363, 374, 320 A.2d 75 (1974); People v. Karasek, 63 Mich. App. 706, 712-13, 234 N.W.2d 761 (1975); People v. Reid, 69 N.Y.2d 469, 475, 508 N.E.2d 661, 515 N.Y.S.2d 750 (1987); Commonwealth v. Sleighter, 495 Pa. 262, 267, 433 A.2d 469 (1981). “For the law to approve the collection of an illegal obligation would serve only to encourage the use of violence in the collection of such debts . . . .” Commonwealth v. Sleighter, supra, 267. The Maryland Appellate Court stated: “[W]e decline ... to substitute in this State the ‘rule of the gun’ for the ‘rule of reason.’ ” Cates v. State, supra, 374; see also People v. English, 32 Ill. App. 3d 691, 693, 336 N.E.2d 199 (1975) (“a creditor may not employ violence, threats, or weapons to collect the debt but should pursue his remedies in the normal channels of peaceful and legal redress”); State v. Mejia, 141 N.J. 475, 499, 662 A.2d 308 (1995) (“emerging trend in other jurisdictions rejects the claim-of-right defense to robbery”).

Although we have rejected the defendant’s claim of ownership, we still must resolve the issue of whether Turner was an “owner” within the meaning of § 53a-118 (a) (5). We have held that the state need not prove that the stolen property must have been taken from the actual owner. In State v. Taylor, supra, 196 Conn. 230, we upheld a conviction of first degree larceny where the victim, “although not the actual owner, was in lawful possession of the property and held a possessory right obviously greater than that of the defendant.”

We recently followed Taylor in State v. Crosswell, supra, 223 Conn. 253. In that case, the defendant, Dennis Crosswell, along with Charlyene Holmes, Everald Howard and “Jasper” took $15,000 from an apartment. There was testimony in that case from Holmes that she believed the money was drug money and that it was being held for Jasper by a friend of Jasper’s who lived in the apartment. Id., 252. The defendant claimed he was acting as an agent for Jasper when he helped to recover the money, but there was evidence to the contrary. Id., 253. The defendant had worn a mask, the defendant retained part of the money and Holmes misidentified herself in order to allow the group to gain access to the apartment. Id. We concluded that “[t]he state’s evidence established, at a minimum, that someone other than the defendant and his confederates had custody or control of the money that they appropriated. In accordance with the view of courts in other jurisdictions that have considered this question, we hold that a showing that the victim had custody or control over the appropriated property is sufficient to support a charge of larceny. See People v. Gould, 384 Mich. 71, 79-80, 179 N.W.2d 617 (1970); State v. Carlos, 187 N.J. Super. 406, 412, 455 A.2d 89 (1982); People v. Hutchin son, 56 N.Y.2d 868, 869, 438 N.E.2d 1109, 453 N.Y.S.2d 394 (1982); State v. Land, 681 S.W.2d 589, 591 (Term. Crim. App. 1984).” State v. Crosswell, supra, 254.

It cannot be said, therefore, that the defendant, under any reasonable interpretation of the facts in this case, had a superior right to the cocaine and money than Turner and Fields thereby justifying the use of force in the recovery of the property. We reject, therefore, the defendant’s claim that there was insufficient evidence to convict him of two counts of felony murder.

II

The defendant claims that the trial court improperly refused to order a psychiatric examination of the state’s witness, Ruiz, whose psychiatric records demonstrated a history of mental illness, delusions and narcotics use. The defendant argues that in so doing the trial court abused its discretion by determining that Ruiz was competent to testify and also deprived him of the opportunity to cross-examine Ruiz effectively in violation of his sixth amendment right to confrontation. We conclude that the trial court did not abuse its discretion when it denied the defendant’s motion for a psychiatric examination and found Ruiz competent to testify. We also conclude that the defendant was afforded the opportunity to cross-examine Ruiz effectively.

It is well settled that a defendant’s constitutional right to confront and cross-examine witnesses against him includes the opportunity to explore the witness’ mental capacity to observe, recollect and narrate an occurrence. State v. Esposito, 192 Conn. 166, 176, 471 A.2d 949 (1984). To ensure that this right is protected, we have established a well recognized procedure. On a proper showing by the defendant that a witness’ capacity may be substantially diminished because of a mental condition, the state may be required to obtain the consent of the witness for disclosure of the witness’ privileged psychiatric records; General Statutes § 52-146e; or the witness’ testimony may be stricken. State v. Bruno, 236 Conn. 514, 522-23, 673 A.2d 1117 (1996); State v. Pratt, 235 Conn. 595, 607, 669 A.2d 562 (1995); State v. D’Ambrosio, 212 Conn. 50, 61, 561 A.2d 422 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990); State v. Hufford, 205 Conn. 386, 400-406, 533 A.2d 866 (1987); State v. Esposito, supra, 179-80; State v. Storlazzi, 191 Conn. 453, 455-63, 464 A.2d 829 (1983).

In this case, before Ruiz testified, the defendant requested access to Ruiz’ psychiatric records, and the court held a hearing during which the state obtained Ruiz’ consent to allow the trial court to conduct an in camera review of those records. At that hearing, Ruiz testified that he was twenty years old and had been continuously incarcerated since the age of seventeen. Ruiz stated that he had been treated during this period for alcohol and drug abuse and had undergone psychiatric counseling. Ruiz testified that at no time prior to incarceration had he ever been treated by a counselor, or for alcohol and drug abuse. Ruiz also agreed to permit the trial court to turn over any records to defense counsel that the court deemed necessary.

After conducting an in camera review of Ruiz’ department of correction file, the trial court found that the bulk of the file did not contain privileged information. The court further found that the portions of the file that fell under the psychiatric privilege required disclosure because of indications of hallucinations and other psychological considerations that related to Ruiz’ capacity to testify. The court thereafter turned the entire file over to defense counsel. After reviewing the file, the defendant, on May 31, 1994, filed a motion requesting the trial court to order a psychiatric examination of Ruiz. The defendant argued that an examination was necessary to determine whether Ruiz was a rehable and credible witness, whether he could accurately recollect and truthfully relate events and whether he was competent to testify.

In support of his motion, the defendant pointed to the following information from Ruiz’ file. Ruiz had been heavily involved in drug use prior to his incarceration. While incarcerated, Ruiz had a record of continuous psychiatric problems, and. had often indicated that “Lucifer” or “Red Bean” was inside of him directing him to kill someone and to bum himself. Ruiz also had reported experiencing hallucinations and flashbacks. On May 30, 1991, Ruiz was diagnosed as “schizopheno ORM” and possible “affect[ive] disorder.” Similar diagnoses were made in September, 1991, April, 1992, and in 1993. For approximately three years while incarcerated, Ruiz was treated with the drugs Haldol and Thorazine. Over the course of his incarceration, Ruiz attempted suicide on at least twenty occasions. The defendant also argued that Ruiz’ mental state was particularly important because Ruiz had implicated the defendant in a May 28,1991 statement to police, only two days before being diagnosed as schizophrenic and delusional.

The trial court denied the defendant’s motion. The court held that the circumstances did not warrant a compelled psychiatric examination of Ruiz. The court particularly noted that the defendant could use the voluminous record to cross-examine Ruiz and that there were other means by which the defendant could develop his own evidence concerning Ruiz’ mental condition.

We first conclude that the trial court did not abuse its discretion in refusing to order a psychiatric examination of Ruiz for the purpose of determining whether Ruiz was competent to testify. “ ‘The competency of a witness is a matter peculiarly within the discretion of the trial court and its ruling will be disturbed only in a clear case of abuse or some error in law.’ State v. Manning, 162 Conn. 112, 115, 291 A.2d 750 (1971).” State v. Canady, 187 Conn. 281, 291-92, 445 A.2d 895 (1982); State v. Piskorski, 177 Conn. 677, 716-17, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979); State v. Orlando, 115 Conn. 672, 675, 163 A. 256 (1932). “ ‘[I]n determining the competency of a proposed witness the trial court should consider the capacity of the witness to receive correct sense impressions, to comprehend the facts to be developed, to recollect and narrate facts intelligently, and to appreciate the moral duty to tell the truth.’ . . . State v. Boulay, 189 Conn. 106, 108, 454 A.2d 724 (1983).” State v. Weinberg, 215 Conn. 231, 242, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990).

In State v. Weinberg, supra, 215 Conn. 243-44, we concluded that rule 601 of the Federal Rules of Evidence, “as applied by the federal courts, establishes a reasoned approach to determining the admissibility of a witness’ testimony. . . . [W]here the competency of a witness is challenged, the threshold question to be answered by the court is whether the testimony of that witness is minimally credible. If the testimony of a witness passes the test of minimum credibility, and is otherwise relevant, the testimony is admissible and the weight to be accorded it, in light of the witness’ incapacity, is a question for the trier of fact.” Rule 601 “reflects a strong presumption in favor of witness competency.” Borawick v. Shay, 68 F.3d 597, 601 (2d Cir. 1995); United States v. Khoury, 901 F.2d 948, 966 (11th Cir. 1990); United States v. Bloome, 773 F. Sup. 545, 546 (E.D.N.Y. 1991).

The trial court had the opportunity to observe Ruiz at the preliminary hearing in which Ruiz consented to the disclosure of his psychiatric records and when he was called to testily. The court, therefore, had a firsthand opportunity to evaluate whether Ruiz could understand the questions posed to him and could respond in a coherent manner. There is nothing in the transcript to indicate that the trial court’s evaluation of Ruiz’ mental capacity and the court’s subsequent ruling constituted an abuse of discretion. See State v. Weinberg, supra, 215 Conn. 244 (even where parties agreed to examination of witness by independent psychiatrist and psychiatrist concluded that witness was incompetent to testify, trial court did not abuse its discretion in concluding otherwise after observing witness); State v. Stankowski, 184 Conn. 121, 140, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981) (trial court has ability to observe witness’ demeanor and ability to answer questions). The defendant argues, however, that because Ruiz’ file showed that Ruiz had been prescribed Haldol only twenty-six days prior to his testimony, the trial court abused its discretion in determining that Ruiz was competent to testify. We disagree. The defendant failed to present any evidence that this prescription drug affected Ruiz, and Ruiz testified that he was not currently taking any drugs. Moreover, our review of the transcript also confirms that Ruiz repeatedly testified in a cogent and responsive manner.

Our case law demonstrates that the “ ‘drastic measure’ ” of ordering a psychiatric examination; United States v. Riley, 657 F.2d 1377, 1387 (8th Cir. 1981), cert. denied, 459 U.S. 1111, 103 S. Ct. 742, 74 L. Ed. 2d 962 (1983), quoting United States v. Russo, 442 F.2d 498, 502 (2d Cir. 1971), cert. denied, 404 U.S. 1023, 92 S. Ct. 669, 30 L. Ed. 2d 673 (1972); should be taken only upon “compelling reasons.” State v. Dabkowski, 199 Conn. 193, 197-98 n.5, 506 A.2d 118 (1986); see State v. Manini, 38 Conn. App. 100, 119, 659 A.2d 196, cert. denied, 234 Conn. 920, 661 A.2d 99 (1995). “In State v. Dabkowski, [supra, 193] . . . [we] . . . rejected the ‘Wigmore rule,’ which suggests that a ‘complaining witness, in a case relating to a sex offense, should always be compelled to submit to a psychiatric examination.’ See 3A J. Wigmore, Evidence (Chadbourn Rev. 1970) § 924a.” State v. Manini, supra, 118. Such an examination should not be ordered if the trial court, “ ‘after hearing the testimony of the witness, has no doubt of [the witness’] mental soundness.’ ” State v. Canady, supra, 187 Conn. 291, quoting State v. Vars, 154 Conn. 255, 268, 224 A.2d 744 (1966); see also State v. Manning, supra, 162 Conn. 115. In making such a determination, the trial court may make use of its own observations of the witness. State v. Canady, supra, 292.

Moreover, Ruiz’ factual reports were independently corroborated by other evidence presented by the state, particularly the defendant’s January statement given to police in which the defendant stated that he was in Lewis’ car when Lewis went into the victims’ apartment on Howard Avenue on the night of the murders. This corroboration demonstrates that Ruiz “possessed sufficient powers of observation, recollection, narration and truthfulness to meet the threshold requirement of minimum credibility.” State v. Weinberg, supra, 215 Conn. 244; see United States v. Raineri, 670 F.2d 702, 709 (7th Cir.), cert. denied, 459 U.S. 1035, 103 S. Ct. 446, 74 L. Ed. 2d 601 (1982) (no abuse of discretion in permitting witness to testify in absence of psychiatric examination where witness’ testimony was corroborated). Both Ruiz’ testimony and the defendant’s statement indicated that the defendant went with Lewis to the victims’ apartment for drug-related business that night, that Lewis had run out of the apartment building after a short period of time and that Lewis had later thrown the murder weapon off the Chapel Street Bridge.

Furthermore, Diane Basilicato testified that, in October, 1990, she had lived in the apartment next to the victims’ apartment. Basilicato testified that she had arrived home at 4:01 a.m. on October 11, 1990, and had begun to watch television when she heard a banging and then two people running down the apartment building’s stairs. This corroborated Ruiz’ testimony that both the defendant and Lewis had entered the apartment while Ruiz waited in the car.

In addition, Jose Roque had provided police with a tape-recorded statement that was admitted into evidence. In his statement, Roque indicated that he had heard the defendant and Lewis discussing the murders. Roque told police that the defendant had said to Lewis, “you did what you had to do,” and Lewis responded affirmatively. Roque also stated that he had seen Lewis throw the murder weapon off the Chapel Street Bridge.

Ruiz had also testified that the bullets for the guns in the Clay Street house had been purchased at Chris’ Gun Shop on Grand Avenue in New Haven. The state presented evidence that the bullets fired at the murder scene were Federal Hydroshock .357 caliber. Detective William Piascyk testified that on October 11, 1990, he had checked with all three gun shops located within the general area of New Haven and that only Chris’ Gun Shop sold Federal Hydroshock ammunition.

We conclude that the trial court did not abuse its discretion by refusing to resort to the drastic measure of ordering a psychiatric examination in order to determine whether Ruiz was competent to testify. The trial court, which had examined the correction department records, had a face-to-face opportunity to evaluate whether Ruiz could testify in a coherent manner with an appreciation of the oath and Ruiz’ testimony was substantially corroborated. After examining the record, we also conclude that at all times Ruiz testified in a clear, coherent and responsive manner. The record reveals, therefore, that the trial court did not abuse its discretion in determining that Ruiz was competent to testify.

The defendant also asks us to conclude that the trial court improperly refused to require Ruiz to undergo a psychiatric examination in order to provide material for his cross-examination of Ruiz. The defendant argues that by denying his request, the trial court prevented him from pursuing a line of inquiry calculated to discredit Ruiz. The defendant’s trial motion did not explicitly address his right of confrontation, and the defendant now requests that we review this claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

The defendant does have a right under the confrontation clause “to expose to the jury the facts from which jurors, as the sole triers of facts and credibility, [can] appropriately draw inferences relating to the credibility of the [state’s] witnesses.” Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Ouellette, 190 Conn. 84, 101-103, 459 A.2d 1005 (1983). The confrontation clause requires that “[if] the testimony of such a witness is to remain in the case as a basis for conviction, the defendant must be afforded a reasonable opportunity to discover any infirmities that may cast serious doubt upon its truthfulness.” State v. Pierson, 201 Conn. 211, 227, 514 A.2d 724 (1986), on appeal after remand, 208 Conn. 683, 546 A.2d 268 (1988), cert. denied, 489 U.S. 1016, 109 S. Ct. 1131, 103 L. Ed. 2d 193 (1989). We therefore review the defendant’s claim, but conclude that the defendant has not clearly demonstrated a constitutional violation that deprived him of a fair trial.

While the competency of a witness is for the trial court to evaluate, the credibility of a witness is for the jury to determine. See State v. Weinberg, supra, 215 Conn. 244; United States v. Ramirez, 871 F.2d 582, 584 (6th Cir.), cert. denied, 493 U.S. 841, 110 S. Ct. 127, 107 L. Ed. 2d 88 (1989); United States v. Bloome, supra, 773 F. Sup. 546. The trial court may, in its discretion, limit the cross-examination of a witness so long as the defendant’s right to confrontation is not impaired. State v. Asherman, 193 Conn. 695, 718, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). This discretion includes “matter[s] of discovery [concerning mental capacity] where material is sought for impeachment purposes.” State v. Esposito, supra, 192 Conn. 179; State v. Januszewski, 182 Conn. 142, 171, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). We have held that the trial court has broad discretion in deciding whether to order the psychiatric examination of a witness for the purposes of impeachment. See State v. Piskorski, supra, 177 Conn. 716-17; State v. Manini, supra, 38 Conn. App. 117-19; see also United States v. Fountain, 840 F.2d 509, 517 (7th Cir.), cert. denied, 488 U.S. 982, 109 S. Ct. 533, 102 L. Ed. 2d 564 (1988); United States v. Pino, 827 F.2d 1429, 1430 (10th Cir. 1987); United States v. Raineri, supra, 670 F.2d 709.

Again, it has been emphasized that the discretion to condition a witness’ testimony on the witness’ submission to a psychiatric examination “should be exercised sparingly.” United States v. Gutman, 725 F.2d 417, 420 (7th Cir.), cert. denied, 469 U.S. 880, 105 S. Ct. 244, 83 L. Ed. 2d 183 (1984). “The [trial] court was entitled to be leery of both psychiatric examinations of witnesses and psychiatric testimony about witnesses, because the jury can observe for itself . . . the witness’s behavior. Criminal trials are complex enough without turning them into collateral investigations of the witnesses— investigations that would not only drag out trials and confuse jurors but also discourage people from serving as witnesses.” United States v. Fountain, supra, 840 F.2d 517.

The trial court provided the defendant with Ruiz’ entire department of correction file, which contained all the records of psychiatric counseling and treatment that Ruiz had received up to the time of trial. The defendant extensively cross-examined Ruiz regarding his psychiatric history, his criminal background and his recollection of the events of October 10 and 11, 1990. On cross-examination, Ruiz stated that he had lied to correction department authorities and doctors about his mental condition to protect himself. On redirect examination, Ruiz testified that he told doctors that he heard voices only so that he would be taken out of the general population of the correction facility and be placed into protective custody. Ruiz testified that he wanted to be in protective custody because after other inmates had learned that he was a “snitch,” they often assaulted him. To corroborate Ruiz’ explanation, the state presented in evidence a letter that Ruiz had received in early 1992. The letter warned Ruiz: “Don’t testify, because if you do, you are as good as dead.” The defendant argues that although he had access to all of Ruiz’ records, without a compelled psychiatric examination he could not “counter Ruiz’ claims of fabrication.” We disagree.

When the trial court denied the defendant’s motion for a psychiatric examination, the court suggested to the defendant that he could develop his own independent evidence, but the defendant did not accept this invitation. The defendant did not attempt to call as witnesses the psychiatrists and other prison counselors who had treated Ruiz and reported his psychiatric history. The defendant also could have presented testimony from his own expert based on the expert’s independent analysis of Ruiz’ records. “ ‘[A] defendant’s right [of cross-examination] is not infringed if the defendant fails to pursue a line of inquiry open to him. . . . The test is whether the opportunity to cross-examine existed, not whether full use of such opportunity was made.’ ” State v. Bruno, supra, 236 Conn. 533, quoting State v. Mastropetre, 175 Conn. 512, 522, 400 A.2d 276 (1978).

We conclude that the trial court did not abuse its discretion in refusing to condition Ruiz’ testimony on his submission to a psychiatric examination. State v. Piskorski, supra, 177 Conn. 716-17; State v. Manini, supra, 38 Conn. App. 119. “Wisely, we have historically left credibility determinations to the trier of fact, and we see no reason to depart from that procedure under the facts of this case.” United States v. Ramirez, supra, 871 F.2d 585. A compelled psychiatric examination of a witness can be a “ ‘tool of harassment’ ”; State v. Canady, supra, 187 Conn. 291, quoting United States v. Benn, 476 F.2d 1127, 1131 (D.C. Cir. 1973); and the discretion to order an examination should be exercised sparingly. Having heard the extensive cross-examination of Ruiz, the jury could determine the weight to be accorded his testimony. See State v. Weinberg, supra, 215 Conn. 231. The defendant, therefore, has not demonstrated a constitutional violation that deprived him of a fair trial.

III

The defendant claims that the trial court improperly instructed the jury regarding the credibility of his alibi witnesses. The defendant did not object to the instruction at trial, but seeks review pursuant to State v. Golding, supra, 213 Conn. 239-40. The defendant recognizes that this court has previously upheld the challenged instruction; State v. Ryerson, 201 Conn. 333, 348, 514 A.2d 337 (1986); yet argues that “the instruction is outmoded and unfair by today’s standards, and should be disapproved.” The defendant argues that the instruction violated the presumption of innocence and his right to present a defense as established by the fifth, sixth and fourteenth amendments to our federal constitution and article first, § 8, of our state constitution. The defendant’s claim is unavailing.

A defendant cannot transform a nonconstitutional claim into a constitutional claim by placing a label on it. “[C]laimed instructional errors regarding general principles of credibility of witnesses are not constitutional in nature. State v. Tatum, 219 Conn. 721, 738, 595 A.2d 322 (1991).” State v. Walton, 227 Conn. 32, 65, 630 A.2d 990 (1993). Accordingly, we conclude that the defendant has not alleged a constitutional violation.

rv

The defendant claims that the trial court improperly instructed the jury on the concept of reasonable doubt in violation of his rights to due process and a jury trial guaranteed by the federal and state constitutions. The defendant did not raise this claim at trial, but again seeks review pursuant to State v. Golding, supra, 213 Conn. 239-40, and the plain error doctrine. Because the defendant alleges the violation of a fundamental constitutional right, we will review his claim. We previously have rejected nearly identical claims, and we here adhere to our prior decisions.

The defendant argues that the trial court diluted his presumption of innocence by two passages in its instructions to the jury. The defendant points to the court’s instruction that “[i]t is not required that the state prove the defendant guilty beyond all possible doubt. Now, a reasonable doubt means this, it is a doubt for which a reasonable man or woman can give a valid reason.” The defendant does not offer us any reason to depart from our previous decisions approving such an instruction under both the federal and the state constitutions. State v. Kelley, 229 Conn. 557, 567, 643 A.2d 854 (1994); State v. Adams, 225 Conn. 270, 290-91, 623 A.2d 42 (1993); State v. Derrico, 181 Conn. 151, 170-71, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980).

The defendant also points to the court’s instruction that “[a] reasonable doubt is a doubt which would cause you as reasonable and prudent men and women to hesitate to act in the more weighty and important matters relating to your own affairs.” In State v. Smith, 210 Conn. 132, 147-50, 554 A.2d 713 (1989), we agreed with the United States Supreme Court that the “hesitate to act” language accurately conveys the concept of reasonable doubt. See Holland v. United States, 348 U.S. 121, 140, 75 S. Ct. 127, 99 L. Ed. 150 (1954); see also State v. Rodriguez, 37 Conn. App. 589, 616-19, 658 A.2d 98, cert. denied, 234 Conn. 916, 661 A.2d 97 (1995).

Accordingly, we conclude that the trial court correctly conveyed the concept of reasonable doubt to the jury. The defendant has not been denied either due process or a right to a jury trial, and he has not been prejudiced by plain error.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1989) § 53a-54c provides: “Felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, sexual assault in the first degree with a firearm, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”
      The defendant was acquitted of two counts of murder in violation of General Statutes §§ 53a-54a and 53a-8.

       The sixth amendment to the federal constitution provides in part: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . . .” Article first, § 8, of our state constitution contains a virtually identical provision. Because the defendant has not provided any independent analysis under the state constitution, we limit our analysis to the federal constitution. State v. Dyson, 238 Conn. 784, 794, 680 A.2d 1306 (1996).

       The state concedes that the defendant would be able to make the requisite showing of a “reasonable ground to believe that the failure to produce the information is likely to impair the defendant’s right to confrontation . . . .” State v. Esposito, supra, 192 Conn. 179.

       The court noted that there were approximately 4000 pages in the file. The defendant also had access to Ruiz’ juvenile offender file from the Long Lane School, but the court and defense counsel determined that there was nothing in the file that indicated that Ruiz had received any psychiatric treatment.

       The defendant’s motion cited State v. Canady, 187 Conn. 281, 445 A.2d 895 (1982), and State v. Manning, 162 Conn. 112, 291 A.2d 750 (1971). These cases concern the trial court’s discretion to order a psychiatric examination for the purpose of determining whether a witness is competent to testify and do not mention a defendant’s right to confrontation. The defendant also made no oral arguments regarding his right to confrontation before the trial court. We conclude, therefore, that the defendant did not request the trial court to order a psychiatric examination in order to provide him with material for his cross-examination of Ruiz, but, rather to determine the competency of Ruiz.

       See footnote 5 of this opinion.

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

       In addition, the defendant’s motion did not specify a psychiatrist who would conduct such an examination and under what circumstances the examination would be conducted, thus rendering the proposed examination more difficult for the trial court to consider as an aid to cross-examination.

       The defendant also argues that the trial court deprived him of his right to present a defense by not ordering a competency examination of Ruiz. The defendant has a right under the compulsory process and due process clauses “to present [his] version of the facts as well as the prosecution’s to the jury so [that] it may decide where the truth lies.” Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967). The defendant argues that without a court-ordered examination, the defendant could not present expert testimony regarding Ruiz’ mental capacity. 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”); State v. Christiano, 228 Conn. 456, 474, 637 A.2d 382, cert. denied, 513 U.S. 821, 115 S. Ct. 83, 130 L. Ed. 2d 36 (1994). The defendant did not raise this claim before the trial court, but seeks review of any unpreserved claims pursuant to State v. Golding, supra, 213 Conn. 239-40. For the reasons discussed above, however, we conclude that the defendant has not demonstrated a constitutional violation that clearly deprived him of a fair trial.

       The trial court instructed the jury: “In connection with the alibi defense you have heard testimony from certain defense witnesses concerning the defendant’s alleged presence in North and South Carolina at the time that the murders were committed. In connection with this alibi evidence please keep in mind that the kind of evidence relating to a claimed alibi frequently will, and in this case did, consist, in part, at least, of the testimony of witnesses who are related to or friends or associates of the accused and who may, therefore, be held to be in a greater or lesser degree interested in the outcome of the case.
      “The liability of the human mind to make honest mistakes as to dates and times when certain events occur is a matter of common knowledge. Interested persons sometimes jump quickly to the time of an occurrence when such a time would be favorable to some desirable end or persons may at a later time be led to make a mistake when their memory is no longer certain in respect to such date and time. This evidence should be given the weight that you think it deserves and should be considered by you along with all the other evidence in the case in reaching a verdict.”

       See footnote 7 of this opinion.

       “Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Taylor, 239 Conn. 481, 502, 687 A.2d 489 (1996).

       The trial court’s complete instruction to the jury on the concept of reasonable doubt was as follows: “The law says that the state must not only prove [the defendant] guilty, but must prove him guilty beyond a reasonable doubt. It is not enough for (he state to make out a case of probable guilt, but the burden on the st ate, which never shifts, is to prove the defendant guilty beyond a reasonable doubt. It is not required that the state prove the defendant guilty beyond all possible doubt.
      “Now, a reasonable doubt means this, it is a doubt for which a reasonable man or woman can give a valid reason. The burden of proving his guilt beyond a reasonable doubt requires the state to produce sufficient evidence to create, in your minds, a strong and abiding conviction of the guilt of the defendant. In other words, it is the law that the evidence must be so sufficient that it would leave no room in your mind for any reasonable hypothesis of the innocence of the accused. Proof of guilt beyond a reasonable doubt must exclude every reasonable supposition of innocence, but it need not exclude every possible supposition of innocence.
      “A reasonable doubt is not a doubt raised by one who questions for the sake of raising a doubt. A reasonable doubt is not a surmise or speculation or conjecture or an imaginary doubt. A reasonable doubt is not captious or a frivolous doubt nor is it a doubt which is raised by the ingenuity of counsel or by a juror and unwarranted by the evidence nor is it a doubt prompted by sympathy for the defendant. A reasonable doubt is a real doubt, an honest doubt, a doubt which has its foundation in the evidence offered in the case or the lack of evidence.
      “Absolute certainty in the affairs of life is almost never attainable and the law does not require absolute certainty to authorize a conviction. What it does require is that the guilt be established as charged beyond a reasonable doubt, which is one founded upon the evidence or lack of evidence.
      “A reasonable doubt is a doubt which would cause you as reasonable and prudent men and women to hesitate to act in the more weighty and important matters relating to your own affairs. Proof beyond a reasonable doubt is proof wholly consistent with the defendant’s guilt and inconsistent with any rational conclusion.”