author: NORCOTT, J.

text:
    STATE OF CONNECTICUT v. TERRELL JACKSON
    (SC 16094)
    Norcott, Katz, Palmer, Vertefeuille and Zarelia, Js.

      Argued April 26
    officially released July 31, 2001

      Kent Drager, senior assistant public defender, for the appellant (defendant).

      Susann E. Gill, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and John C. Smriga, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

NORCOTT, J.

The defendant, Terrell Jackson, appeals from his judgment of conviction by a juiy for the murder of the victim, Darryl Luckes, in violation of General Statutes § 53a-54a (a). Following his conviction, the defendant was sentenced to a term of imprisonment of fifty years. The defendant appealed from the judgment of the trial court directly to this court pursuant to General Statutes § 51-199 (b) (3). The defendant claims that there was insufficient evidence at trial to sustain his conviction and that the trial court improperly admitted into evidence a redacted version of a statement that he had given to the police, rather than the entire statement. We find no merit to either claim and, accordingly, we affirm the judgment of the trial court.

On the basis of the evidence produced at trial, the jury reasonably could have found the following facts. On August 25,1997, at approximately 11 a.m., the defendant, the victim, Marquis Younger, his brother, Demetrice “Flip” Younger, and several others were playing cards on the porch of the house located at 903 Hancock Street in Bridgeport. An altercation between the defendant and the victim ensued, whereby the defendant fired four shots at the victim, killing him. One week later, the defendant was arrested on a drug charge. While in custody for the drug charge, the defendant was arrested and charged with the murder of the victim.

The defendant elected a trial by jury. At trial, none of the witnesses testified that they saw the defendant shoot the victim. In presenting its case, however, the state offered numerous witnesses who testified as to what had occurred on the morning of the shooting. Tia Perry, a neighbor who had resided in a multifamily home at 900 Hancock Street, testified that she had been returning to her apartment when she noticed a group of men playing cards at 903 Hancock Street, which was located directly across the street from her building. Once Perry entered her apartment, she testified that she heard a gunshot and then heard the victim say, “Nugget, please don’t shoot me.” Perry stated that she then heard three more gunshots, she looked out of her window, and she observed the defendant walk from one comer of the building to another, pick something up from the ground, and ran into 903 Hancock Street. Perry later testified that the object that the defendant held in his hand looked to be the handle of a .45 caliber handgun.

In a statement given to the police after the shooting, Marquis Younger also claimed to have seen the defendant and victim playing cards, after which the defendant went upstairs, returned and resumed playing cards.

The state offered the statement of Demetrice Younger, who stated that he also was on the porch immediately prior to the shooting. Demetrice confirmed that the defendant and the victim were indeed playing cards, but added that there was something wrong with the game, “like the trust [was not] there . . . Demetrice stated that he had left the porch to urinate near the side of the house when he heard one gunshot, followed by three additional gunshots. Also, Demetrice stated that the day after the defendant was arrested, the defendant had called his house to inquire whether anyone was talking to the police or anyone else about what had transpired.

Finally, the state produced evidence that, during the defendant’s incarceration while he was awaiting trial, the department of correction intercepted letters written and addressed under the direction of the defendant to certain of his friends and relatives. According to the state, the purpose of these letters, in essence, was to deter, threaten and frighten key witnesses from testifying against the defendant. The letters also confirmed that the defendant had told certain individuals what to say in order to establish an alibi for him.

The defendant testified on his own behalf, claiming that he and the victim had been longtime associates who often smoked marijuana, gambled and sold drugs from the porch of the house located at 903 Hancock Street. The heart of the defendant’s defense was that another individual, whom he identified as an Hispanic male named “Kato,” had entered the front gate of the house located at 903 Hancock Street and had shot the victim. The defendant testified that Kato entered through the gate, fired a shot that struck the front staircase and fled. During this encounter, the defendant testified that he and the others on the porch fled while hearing more gunshots coming from behind them.

The state, however, countered this theory by questioning the defendant about the written statement he previously had given to the police concerning the shooting. Unlike the defendant’s testimony at trial, the defendant, in his written statement, denied being on the porch at the time of the shooting, claiming that he had been selling drugs on Stratford Avenue in Bridgeport. The defendant attempted to reconcile his admission at trial that he had been at the scene of the crime by claiming that the only reason that he had given the false written statement was that he knew that he ultimately would be imprisoned on the drug charge, and that he did not want to run the risk of being labeled a “snitch” among the prison population by inculpating Kato.

The state’s case also was strengthened by Latasha “Tasha” Gardner, the sister of the defendant’s girlfriend, Karen Gardner, who testified for the defense. Rather than exculpating the defendant, Latasha testified that she had been upstairs at home at 903 Hancock Street at the time of the shooting and that the defendant was not with her at that time. She claimed that she heard “five or six” gunshots and heard someone say, “Stop, Nugget, I’m hit.”

The jury rejected the defendant’s theory and found him guilty of murder in violation of § 53a-54a (a). Subsequently, the trial court rendered judgment in accordance with the verdict and sentenced the defendant to fifty years imprisonment. This appeal followed. The defendant’s appeal is limited to the following issues: (1) whether there was sufficient evidence at trial to sustain his conviction; and (2) whether the trial court improperly admitted into evidence a redacted version of the statement that the defendant had given to the police, rather than the statement in its entirety. We conclude that there was sufficient evidence to sustain the defendant’s conviction and that the trial court acted properly in admitting the redacted statement.

I

We first address the defendant’s claim that, at trial, there was insufficient evidence to support the guilty verdict. The principal thrust of the defendant’s argument is that the state’s case was based entirely on circumstantial evidence. Specifically, the defendant argues that there was insufficient evidence to sustain a conviction because: (1) no one saw the defendant shoot the victim and, therefore, the evidence produced at trial was insufficient to prove beyond a reasonable doubt that he was the person who shot and killed the victim; (2) the letters sent from prison by the defendant did not demonstrate his guilt; (3) the physical evidence produced at trial supported the defendant’s claim that another person had committed the crime; and (4) the defendant lacked a motive for shooting the victim. The state contends that none of these claims overcome the entire weight of the circumstantial evidence produced at trial, which was sufficient to prove the defendant’s guilt beyond a reasonable doubt. We agree with the state.

Our standard of review of sufficiency of evidence claims is well settled. “In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . State v. DeCaro, 252 Conn. 229, 239, 745 A.2d 800 (2000).

“Additionally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty. . . . Id., 240.

“Finally, [w]e do not sit as the thirteenth juror who may cast a vote against the verdict based upon a feeling that some doubt of guilt is shown by the cold printed record. . . . Rather, we must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Citations omitted; internal quotation marks omitted.) State v. Wilcox, 254 Conn. 441, 463-64, 758 A.2d 824 (2000).

We also have noted that “[t]here is no distinction between direct and circumstantial evidence so far as probative force is concerned . . . .” (Citation omitted; internal quotation marks omitted.) State v. Heinz, 193 Conn. 612, 625, 480 A.2d 452 (1984). Indeed, “[cjircumstantial evidence . . . may be more certain, satisfying and persuasive than direct evidence.” (Internal quotation marks omitted.) State v. Taylor, 153 Conn. 72, 78, 214 A.2d 362 (1965), cert. denied, 384 U.S. 921, 86 S. Ct. 1372, 16 L. Ed. 2d 442 (1966). “If evidence, whether direct or circumstantial, should convince a jury beyond a reasonable doubt that an accused is guilty, that is all that is required for a conviction.” State v. Smith, 138 Conn. 196, 200, 82 A.2d 816 (1951). Against these standards, we begin our analysis of the defendant’s claim.

A

The defendant claims that there was insufficient evidence to prove that he was guilty of the murder because no one saw him shoot the victim. We recognize that the question of identity of a perpetrator of a crime is a question of fact that is within the sole province of the jury to resolve. “[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 132-33, 646 A.2d 169 (1994).

The jury’s conclusions in the present case were both reasonable and logical. We first note that the defendant himself ultimately admitted at trial that he was present on the porch at the time of the shooting and that the written statement he previously had given to the police was inaccurate. Three witnesses, including Perry, Marquis Younger and Demetrice Younger, testified that they saw the defendant and the victim together on the porch playing cards immediately prior to the shooting. Moreover, these witnesses, as well as Latasha Gardner, testified that they either saw the defendant pull out a gun or heard an altercation ensue in which the victim said, “Nugget, please don’t shoot me” and “Stop, Nugget, I’m hit.”

Although none of the witnesses testified that they personally witnessed the shooting, we conclude that the cumulative effect of the evidence provided the jury with a sufficient basis from which it reasonably could find that the defendant did in fact shoot the victim.

B

The defendant claims that the letters he sent from prison did not constitute evidence of his guilt. We disagree. The state introduced into evidence numerous incriminating letters, admittedly written by another inmate at the direction of the defendant, and addressed to the defendant’s friends and family members. The department of correction officials intercepted these letters while the defendant was incarcerated awaiting trial for the present case. In particular, these letters urged witnesses who were present at the time of the shooting to leave the jurisdiction so that they could not be called to testify, and impliedly offered them compensation for favorable testimony if they were forced to testify. In one letter, the defendant advised his brother, Quincy Jackson, to tell a witness not to appear in court and stated that “if [Tasha] don’t listen, scare her up. Tell her that her life is in jeopardy. She’ll go then.” Moreover, in an attempt to mitigate this incriminating evidence at trial, the defendant cryptically explained that, “I wrote them letters ‘cause I tried to get—I tried to get . . . Flip and Tasha not to come to court ‘cause they was gonna force my hand. They tell the police that I was there, then I would’ve had to snitch. That’s one thing I tried not to do.”

On the basis of the content of these letters and the defendant’s explanation, the jury reasonably could have concluded that the defendant was attempting to influence and coerce prospective, damaging witnesses against him. That evidence, coupled with the other evidence in the case, was consistent with the jury’s finding of his guilt. The jury, in its role as fact finder, rejected the defendant’s exculpatory characterization of both the altercation in question and the incriminating letters.

C

As part of his sufficiency claim, the defendant also argues that he could not have shot the victim because the physical evidence produced at trial demonstrated that the shooter came into the yard from the street. This claim rests on certain additional facts that were developed during the trial.

At trial, the jury was presented with the following additional evidence: (1) two .45 caliber shell casings that were recovered from the crime scene had been fired by the same gun; and (2) testimony from Bridgeport police officers Jose Luna and Michelle Hernandez that a bullet hole was found in the vertical riser of one of the porch steps, suggesting that the bullet causing that hole would have come from the direction of the street. On the basis of this physical evidence and the testimony related to it, the defendant argues that the weight of the evidence demonstrates that the state’s theory of the case was implausible and, accordingly, insufficient to sustain a finding that he shot the victim.

It is well established that it is the function of the jury to consider the evidence and judge the credibility of witnesses. State v. Dudla, 190 Conn. 1, 7, 458 A.2d 682 (1983). “We also acknowledge that the [jury’s] findings of fact are entitled to great weight and that a conviction based on the facts found by the trier will be affirmed if the trier of fact could reasonably have inferred [from the evidence] that the defendant was guilty beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Osman, 218 Conn. 432, 436, 589 A.2d 1227 (1991). “Although some evidence may be inconsistent with the state’s theory of the case, the jury is not bound to credit only that evidence to the exclusion of evidence consistent with the state’s theory.” State v. Salz, 226 Conn. 20, 29-30, 627 A.2d 862 (1993).

The defendant’s claims in this appeal do not undermine the cumulative weight of the state’s case. For example, there was no evidence presented that indicated that the bullet hole in the staircase derived from the same sequence of events that gave rise to the victim’s death. Also, because no one testified to witnessing the actual shooting, there was no evidence presented from which the jury could determine with specificity that this particular bullet hole was not made by a shot from the defendant during the altercation. “In evaluating evidence that could yield contrary inferences, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence.” State v. Dejesus, 236 Conn. 189, 195, 672 A.2d 488 (1996). Thus, the jury reasonably could have concluded that the physical evidence did not exclude the defendant as the shooter. Indeed, the jury reasonably could have found that the physical evidence supported a conclusion that the defendant shot the victim.

D

The defendant also argues that he did not have any motive to murder the victim and that the state’s failure to establish any motive at trial strengthens his sufficiency of evidence claim. Although the state acknowledged that it was unable to establish a motive, it maintains that the cumulative weight of the evidence was sufficient for the jury to find that guilt was proven beyond a reasonable doubt. We agree.

“[M]otive is not an element of the crime charged [and, therefore] . . . [p]roof of motive is never necessary to support a conclusion of guilt otherwise sufficiently established, however significant its presence or absence, or its sufficiency, may be as bearing upon the issue of guilt or innocence.” (Internal quotation marks omitted.) State v. Copas, 252 Conn. 318, 337, 746 A.2d 761 (2000); State v. Ruffin, 206 Conn. 678, 681, 539 A.2d 144 (1988); see also State v. Joyce, 243 Conn. 282, 299, 705 A.2d 181 (1997), cert. denied, 523 U.S. 1077, 118 S. Ct. 1523, 140 L. Ed. 2d 674 (1998). Thus, “if the state offers evidence regarding motive, it need not be proven beyond a reasonable doubt.” State v. Joyce, supra, 299. Further, “[b]ecause it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person’s state of mind is usually prove [n] by circumstantial evidence . . . .” (Citation omitted.) State v. Rodriguez, 180 Conn. 382, 404, 429 A.2d 919 (1980). “[M]otive, like intent, generally is inferred from the circumstances.” State v. Copas, supra, 338.

Although the state failed to establish a motive for the murder that took place, the cumulative weight of the circumstantial evidence was sufficient for a jury to conclude beyond a reasonable doubt that the defendant was the person who committed the murder. State v. Weinberg, 215 Conn. 231, 256, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990). Accordingly, we conclude that the circumstantial evidence, in particular, the witnesses’ testimony, the defendant’s statement to the police, as well as the letters he wrote from prison, taken collectively, were sufficient to support the jury’s finding that the defendant was guilty of murder beyond a reasonable doubt.

II

The defendant next argues that the trial court improperly admitted into evidence a redacted version of the written statement that he had given to the police, rather than the statement in its entirety. The defendant argues that the trial court’s failure to admit the entire statement was harmful to him because it allowed the state to misuse the redacted statement to impeach him as “some consummate storyteller.” In response, the state contends that the trial court correctly determined that the balance of the statement was not required for a proper understanding of the portion of the statement offered by the state, and further, the balance of that statement offered by the defendant constituted inadmissible hearsay. We agree with the state.

A few additional facts are needed to dispose of this claim. During the presentation of the state’s case, Detective Leonard Sattani of the Bridgeport police department testified that he had interviewed the defendant as part of the investigation into the victim’s homicide. Sattani explained that during this interview, the defendant had claimed, in part, that he had been present at 903 Hancock Street on the day the victim was shot, but only at night. According to Sattani’s testimony, the defendant also had claimed that at the time of the shooting, he was observed selling drugs on Stratford Avenue. The state then offered into evidence only that part of the statement in which the defendant claimed that he was not at 903 Hancock Street at the time the victim was shot in order to show not only the defendant’s consciousness of guilt, but that he was attempting to establish a false alibi. Thereafter, the defendant objected, arguing that the entire statement should be admitted. After reviewing and comparing the state’s offer of a portion of the defendant’s statement with the defendant’s entire written statement, the court overruled the defendant’s objection and admitted the redacted statement into evidence as a full exhibit.

During the defendant’s cross-examination of Sattani, the detective acknowledged that the questions asked of the defendant were part of the investigation into the victim’s shooting. The defendant then sought to admit into evidence his entire written statement given to Sattani. The state objected, arguing that the defendant’s own statements about himself constituted inadmissible hearsay. After the court conducted another review of the entire statement, it sustained the state’s objection.

“Our cases have long held that, when one party to a litigation or prosecution seeks to introduce admissions that constitute only a portion of a conversation, the opposing party may introduce other relevant portions of the conversation, irrespective of whether they are self-serving or hearsay. Rokus v. Bridgeport, 191 Conn. 62, 68-69, 463 A.2d 252 (1983); State v. Hicks, 169 Conn. 581, 589, 363 A.2d 1081 (1975); State v. Savage, 161 Conn. 445, 448, 290 A.2d 221 (1971); see also Sullivan v. Nesbit, 97 Conn. 474, 477, 117 A. 502 (1922) .... The purpose of this rule is to ensure that statements placed in evidence are not taken out of context. State v. Hicks, supra [589], This purpose also demarcates the rule’s boundaries; a party seeking to introduce selected statements under the rule must show that those statements are, in fact, relevant to, and within the context of, an opponent’s offer and, therefore, are part of a single conversation.” (Citation omitted.) State v. Castonguay, 218 Conn. 486, 496-97, 590 A.2d 901 (1991); see also Conn. Code Evid. § 1-5 (b).

We note that the defendant’s claim is essentially a challenge to an evidentiary ruling of the trial court. “Because a trial court’s ruling on [evidentiary] grounds is accorded great deference, we will reverse such a ruling only in cases manifesting an abuse of discretion and resulting in substantial prejudice or injustice to the defendant.” State v. Castonguay, supra, 218 Conn. 497. We conclude that there is no abuse of discretion or substantial prejudice to the defendant here.

The state offered the redacted statement to show the defendant’s consciousness of guilt, and that he attempted to establish a false alibi as to his whereabouts on the day of the crime. The defendant argues that his reason for insisting that the balance of the statement be shown to the jury was to demonstrate that he was not just a “consummate storyteller.” A review of the balance of that statement, however, substantiates the state’s argument that the rest of the defendant’s statement was not relevant in providing meaning and coherence to the admitted portion.

Rather than relating to the question of the purported false alibi and the defendant’s whereabouts at the time of the shooting, the balance of the statement concerned only references to the defendant’s claims that: (1) he knew the victim was his sister’s boyfriend; (2) on the day in question, the victim had come to Hancock Street to sell drugs; (3) he had played cards with the victim on the day of the shooting but denied that the defendant owed the victim money at the conclusion of the card game; (4) he never saw the victim with a gun; and (5) he never harbored any ill will toward the victim and did not shoot him. The assertions set forth by the defendant were not related to the issue of his alibi, which was the puipose of the state’s offering of the statement. State v. Reid, 193 Conn. 646, 656, 480 A.2d 463 (1984) (evidence of attempt to fabricate alibi reflects consciousness of guilt through advancement of false alibi).

“It is an elementary rule of evidence that where part of a conversation has been put in evidence by one party to a litigation or prosecution, the other party is entitled to have the whole conversation, so far as relevant to the question, given in evidence, including the portion which is favorable to him.” (Emphasis added.) State v. Savage, supra, 161 Conn. 448; see also State v. Castonguay, supra, 218 Conn. 498. In the present case, the selected portion of the statement rejected by the trial court was not relevant to the content and purpose of the state’s introduction into evidence of the redacted portion of the defendant’s written statement. Accordingly, we conclude that the trial court did not abuse its discretion and, therefore, this part of the defendant’s claim fails.

Similarly, the defendant’s assertion that the trial court improperly rejected his proffer of the balance of his written statement as inadmissible, self-serving hearsay when he introduced it during the cross-examination of Sattani lacks merit as well.

“An out-of-court statement that is offered to establish the truth of the matters contained therein is hearsay. State v. Packard, 184 Conn. 258, 274, 439 A.2d 983 (1981). Though generally inadmissible, hearsay may be admitted if there is a sufficient probability that the statement is reliable and trustworthy, if the evidence contained in the statement is necessary to resolution of the case, and if the trial court concludes that admitting the statement is in the interests of justice.” State v. Stepney, 191 Conn. 233, 249-50, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984).

We conclude that the defendant’s statement does not fall within any of the exceptions to the rule against admitting hearsay. “When a defendant elects to testify, he may offer any explanation of the events for which he is being tried that he desires, subject, of course, to cross-examination. That right, however, applies only when the defendant actually takes the stand in his own defense. It does not enable him to introduce, through another witness, self-serving statements that are otherwise inadmissible hearsay and that do not serve to place an opponent’s offer in a proper context.” State v. Castonguay, supra, 218 Conn. 498. Moreover, the defendant had the right to testify in his own defense, which he did in this case, and he testified freely with respect to the content of the balance of his statement. The defendant’s right to testify, however, does not enable him to introduce otherwise inadmissible hearsay that does not fall within any of the recognized exceptions.

Nothing in our review of the trial court’s evidentiary ruling on this claim persuades us that the ruling constituted an abuse of discretion in excluding the defendant’s offer.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-54a provides: “(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
      “(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a) of this section, on the question of whether the defendant acted with intent to cause the death of another person.
      “(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony or murder under section 53a-54d.”

       General Statutes § 51-199 (b) 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, including any persistent offender status, for which the maximum sentence which may be imposed exceeds twenty years . . . .”

       The defendant was often referred to as “Nugget” and the victim was referred to as “Easy.”

       The drug charge was unrelated to the events on the day of the shooting.

       At trial, a written statement that Marquis Younger had given to the police was admitted into evidence for substantive purposes.

       During the presentation of the state’s case, Demetrice Younger’s redacted statement was admitted into evidence for substantive purposes.

       In his written statement, Demetrice Younger stated that the defendant had told him the following in a telephone conversation: “He said, ‘What’s going on around there? Is anyone saying anything?’ And he hang right up.”

       It is undisputed that the defendant was the source of these letters even though another inmate had copied the text. The defendant testified at trial that the letters were “sent out by me” and that “I wrote a rough draft of [the letters] and had somebody else copy [them] for me.”

       Further, the defendant noted that the victim was his sister’s boyfriend.

       The defendant testified that the victim, nervous about a car passing by the porch, had asked for and received from the defendant a gun, which the victim proceeded to place under the belt of his pants. The defendant further testified that it was routine for at least one member of a drug dealing group to possess a gun for protection. He later testified that, after the victim had been shot, he retrieved the gun together with a hidden stash of drugs and fled into the house. No gun was ever found.

       This written statement by the defendant was given while he was in custody on a pending drug charge.

       Specifically, the defendant sent letters to: (1) Quincy Jackson, his brother, directing him to tell Latasha Gardner to leave the area and avoid appearing in court because her testimony could damage the defendant; (2) Demetrice Younger urging him to leave the jurisdiction with promises of a “paid vacation” with an opportunity to smoke marijuana everyday if he would avoid the prosecution’s efforts to contact him; (3) Lawanda Eddison Wells, his first cousin, urging her to convince Demetrice to leave the jurisdiction; and (4) Karen Gardner expressing, in part, his concern that Latasha cooperate with his request that she leave the jurisdiction.

       In this letter, the defendant urged Demetrice Younger and Latasha Gardner to go into hiding, discussing the possibility of these witnesses taking “the Fifth Amendment” and, most disturbingly, instructing that their lives could be in jeopardy if they did not cooperate. The defendant also educated Quincy Jackson that if Latasha was going to appear in court, she should give a statement sixty days after his arraignment on December 9, 1997, because he believed the state would have to drop the charges against him.

       The reference to snitching was with respect to the defendant’s earlier testimony that he feared snitching on Kato while he was in the prison population.

       The bullets that passed through the victim’s body were never recovered. The defendant also contends that there was no evidence found by the associate medical examiner, Malka Shah, who performed an autopsy on the victim’s body, to indicate that he had been shot at close range. The defendant concedes in his brief, however, that “Shah did not have the deceased’s clothes to examine, which could [have been] important in looking for gunshot residue.”

       Sattani testified that Stratford Avenue is located in a different part of the city from Hancock Street.

       In its ruling, the trial court stated: “Counsel, I’ve closely reviewed exhibit 25A and [25] for identification. And it’s my opinion that 25A is not taken out of context, nor does it give a distorted view in the absence of the balance of the statement. And the defendant’s offering of [25] appears to be the offering of a defendant’s hearsay explanation of what happened. So the state’s objection to 25 is sustained.”


source: Caselaw Access Project

author: MCDONALD, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. EMANUEL SMITH
    (SC 16254)
    McDonald, C. J., and Borden, Norcott, Katz and Sullivan, Js

      Argued November 29, 2000
    officially released July 31, 2001

      Eileen McCarthy Geel, assistant state’s attorney, with whom were Matthew Couloute, Jr., assistant state’s attorney, and, on the brief, Eugene Callahan, state’s attorney, for the appellant (state).

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

       Although Chief Justice McDonald reached the mandatory age of retirement before the date that this opinion was officially released, his continued participation on this panel is authorized by General Statutes § 51-198 (c). The listing of justices reflects their seniority status on this court as of the date of oral argument.

   Opinion

MCDONALD, C. J.

The defendant, Emanuel Smith, was arrested and charged with possession of narcotics in violation of General Statutes § 21a-279 (a), possession of narcotics with intent to sell or dispense by a person who is not drug-dependent in violation of General Statutes § 21a-278 (a), possession of narcotics with intent to sell or dispense within 1500 feet of a public housing project in violation of General Statutes § 21a-278a (b), and interfering with an officer in violation of General Statutes § 53a-167a (a). The defendant moved to suppress certain evidence and to dismiss the charges against him. After a hearing, the trial court granted the defendant’s motions. The state, on granting of permission by the trial court, appealed to the Appellate Court from the judgment dismissing the information, and this court transferred the case to itself pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

On appeal, the state claims that the trial court improperly granted the motion to suppress. Because we conclude that the search was conducted under exigent circumstances and was supported by probable cause, we reverse the judgment of the trial court.

The trial court, in its oral decision, documented by way of the transcript, found the following facts: “Officer Larry Eisenstein, a veteran member of the Stamford police department together with some colleagues, received information from a confidential informant. Officer Eisenstein was on duty, received a call from a confidential informant who said a motor vehicle was parked at 186 Greenwich Avenue [Stamford], a public housing residential building. [The informant] said that a car was in the lot described as an Olds [mobile] Cutlass . . . bearing Connecticut registration 679 MBX. Officer Eisenstein [had] work[ed] with the confidential informant since 1990 and recently and [on] over ten occasions received reliable information leading to the successful arrest, seizure and convictions of other defendants, and in excess of thirty since 1990.

“The informant provided Officer Eisenstein with information that the said motor vehicle contained an unspecified quantity of contraband, specifically, crack cocaine inside of the motor vehicle. The confidential informant further stated that the vehicle was operated by a black male who was described as 6 feet, over 200 pounds, who was in the company of a female known to the confidential informant as Marlene.

“The officer set up a surveillance following the receipt of that information. Upon arrival at the location the [officers] confirmed the information provided by the confidential informant with respect to the location and description of the motor vehicle, and the presence of a black male fitting the description. The surveillance was conducted for a period of about fifteen minutes. During which time no drugs were seen by the police officer nor were any transactions observed.

“But the police officer did observe a black male fitting the description later found and identified as the defendant . . . approaching the vehicle leaning down from his waist to the driver’s side of the motor vehicle.

“The police moved in and [the defendant] fled on foot, and he attempted to cross a bridge. He was apprehended approximately 100 feet from the location of said motor vehicle. The defendant fought the police who identified themselves as police officers with a badge plainly displayed during the pursuit and during the resistance. The defendant was wrestled down. The keys were taken from the defendant.

“The confidential informant has prior arrests for drug possession and in fact has a pending case in the Stamford judicial district. The confidential informant did not know the defendant but did know his companion Marlene. The confidential informant never provided information that he saw Marlene handle drugs nor did he say the defendant handled drugs. The confidential informant never . . . purchased . . . drugs from the defendant nor Marlene, however, the confidential informant is in fact known at least to Officer Eisenstein to be a drug user. When the defendant was apprehended, no drugs were found on his person. The police had previously determined prior to moving in that the car was registered to someone other than the defendant and his companion. Specifically . . . Acarde Andre Dozier.

“The police officer determined that the defendant was Emanuel B. Smith, Jr. after apprehending him and seizing a pager and some cash. The confidential informant never saw drugs being placed in the motor vehicle. The confidential informant did not witness nor participate in the crime. At this time of the search and subject seizure the motor vehicle was unoccupied and locked by the defendant with keys in his possession. The defendant was not in the car. There were no plain view circumstances wherein contraband was seen by the police officers in the car nor were there any [exigent] circumstances at the time of the search of the automobile.”

On the basis of these facts, the trial court stated that the confidential informant’s “basis of knowledge” was “at issue. ” The trial court concluded that the informant’s information and the officer’s observations were insufficient to establish probable cause. The court also concluded, however, that there were no exigent circumstances to justify the search. Accordingly, the court found that the search violated the defendant’s right to be free from an unreasonable search under the fourth amendment to the United States constitution and article first, § 7, of the constitution of Connecticut. The court ordered that evidence of the crack cocaine found in the vehicle by the police be suppressed.

“As a threshold matter, we set forth the appropriate standard pursuant to which we review a challenge to a trial court’s granting of a suppression motion. This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. That is the standard and scope of this court’s judicial review of decisions of the trial court. ... In other words, to the extent that the trial court has made findings of fact, our review is limited to deciding whether those findings were clearly erroneous. Where, however, the trial court has drawn conclusions of law, our review is plenary, and we must decide whether those conclusions are legally and logically correct in light of the findings of fact.” (Citations omitted; internal quotation marks omitted.) State v. Velasco, 248 Conn. 183, 188-89, 728 A.2d 493 (1999).

The state challenges the trial court’s legal conclusion that the search of the vehicle was not supported by probable cause. In deciding that probable cause existed to search the car, we engage in plenary review. Id., 189-90.

“Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction . . . and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched.” (Internal quotation marks omitted.) State v. Vincent, 229 Conn. 164, 171, 640 A.2d 94 (1994). The determination of whether probable cause exists under the fourth amendment to the federal constitution, and under article first, § 7, of our state constitution, is made pursuant to a “totality of circumstances” test. Illinois v. Gates, 462 U.S. 213, 231-32, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983); State v. Barton, 219 Conn. 529, 544, 594 A.2d 917 (1991). Under the Gates test, a court must examine all of the evidence relating to the issue of probable cause and, on the basis of that evidence, make a commonsense, practical determination of whether probable cause existed. See State v. Barton, supra, 544. We have said that the question is whether there was a fair probability that the contraband was within the place to be searched. State v. Vincent, supra, 172.

In Gates, the United States Supreme Court abandoned its previous test for probable cause based upon informant reports as set forth in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). The Aguilar-Spinelli test had two independent prongs, the “reliability” of the informant and “the basis of his knowledge.” Illinois v. Gates, supra, 462 U.S. 242. This court at first refused to apply the Gates test to informant reports under the Connecticut constitution. See State v. Kimbro, 197 Conn. 219, 236, 496 A.2d 498 (1985). In State v. Barton, supra, 219 Conn. 544-45, however, this court held that we should apply the Gates “totality of the circumstances” test to such reports under our state constitution. Although the “reliability” and “basis of knowledge” prongs are now no longer independent issues, they may nevertheless “illuminate the common-sense, practical question of the existence of probable cause” under the totality of the circumstances. (Internal quotation marks omitted.) State v. Velasco, supra, 248 Conn. 192. As the United States Supreme Court stated in Gates, “a deficiency in one [factor] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.” Illinois v. Gates, supra, 233. The court held in Gates that, where confirmation from other sources such as police investigation exists, the police “could properly conclude that it was not unlikely that [the informant] also had access to rehable information of the [defendant’s] alleged illegal activities.” Id., 245. The court stated that “[i]t is enough that there was a fair probability that the [informant] had obtained his entire story either from the [defendants] or someone they trusted.” Id., 246. As Justice White observed in his Gates concurrence, informant reports require “some showing of facts from which an inference may be drawn that the informant is credible and that his information was obtained in a reliable way.” Id., 273.

As to the informant’s “reliability” in this case, we have consistently held that an informant’s record of providing information that led to arrests and seizures of contraband is sufficient to establish the reliability of the informant. See State v. Respass, 256 Conn. 164, 175-76, 770 A.2d 471 (2001); State v. Rodriguez, 223 Conn. 127, 136, 613 A.2d 211 (1992); State v. Morrill, 205 Conn. 560, 567, 534 A.2d 1165 (1987). In the present case, the trial court found that: “Officer Eisenstein [had] work[ed] with the confidential informant since 1990 and recently and [on] over ten occasions received reliable information leading to the successful arrest, seizure and convictions of other defendants, and in excess of thirty since 1990.” Accordingly, we conclude that this record of past reliability was sufficient to find that the confidential informant was reliable.

The defendant argues that the trial court properly concluded that the informant’s basis of knowledge was insufficient because neither the informant nor the officers had seen cocaine in the car or upon the defendant’s person, nor had the informant bought drugs from the defendant. We conclude, however, that the trial court’s requirement of firsthand visual knowledge of the presence of drugs or of buying drugs went beyond the requirements of Illinois v. Gates, supra, 462 U.S. 231-32, and State v. Barton, supra, 219 Conn. 544. We conclude that the informant’s overhearing of the defendant planning or admitting criminal activity constituted a type of firsthand knowledge formerly required under Aguilar and “highly relevant” under Gates. “Generally, it may be said that the surest way to establish a basis of knowledge is by a showing that the informant is passing on what is to him first-hand information . . . [as] when a person indicates he has overheard the defendant planning or admitting criminal activity . . . .” 2 W. LaFave, Search and Seizure (3d Ed. 1996) § 3.3 (d), pp. 141-42.

We also conclude that the police investigation confirming details of the informant’s report may establish that the informant obtained the information in a rehable way. In Gates, an anonymous letter to the police stated that after Gates flew to Florida he would be driving his family car from Florida to Bloomington, Illinois, and that he would have drugs in it. Illinois v. Gates, supra, 462 U.S. 225. Police investigation confirmed his travel arrangements. Id., 226. A search warrant for the vehicle was obtained and Gates’ car was searched as he returned to Illinois. Id. In Gates, the unknown informant’s basis of knowledge was not spelled out and the informant’s past reliability was necessarily unknown. Id., 227. Nevertheless, the court held that corroboration by the police by investigation of Gates was sufficient to establish probable cause. Id., 241-46.

In this case, the trial court found that the police surveillance confirmed that the vehicle was where the informant said it would be. As the trial court found, the police observed the defendant, who matched the informant’s description, approach the vehicle, open it and bend at the waist into the front seat. He then fled from the vehicle when the police officers approached him. We conclude that probable cause to believe the vehicle contained the drugs was established under Gates and Barton. In the words of Gates, this “all indicated, albeit not with certainty, that the informant’s other assertions also were true.” Id., 244. Here, as in Gates, the police could infer that there was a fair probability that the information came, as Eisenstein testified, from the defendant or someone whom he trusted.

As Gates points out, basis of knowledge no longer has an “independent status” as to probable cause. Id., 230. Under the Gates definition of probable cause, self-verifying detail such as the location of the vehicle and the description of the defendant and the use of the vehicle to keep something in the vehicle may lead one to conclude that the information is not merely a “casual rumor.” 2 W. LaFave, supra, § 3.3 (d), p. 141. Partial corroboration of the informant’s report by facts developed by police also may be considered as was done in Gates. In this case, the police observed the defendant approach the vehicle, reach into the floorboard area and flee when he saw the officers approaching him. His flight was suggestive of criminal activity in itself and supports a finding of probable cause. Cf. Illinois v. Wardlow, 528 U.S. 119, 124-25, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000) (police officer justified in suspecting criminal activity when suspect fled after seeing police).

We conclude that a commonsense, practical basis for finding probable cause existed. Considering all of the circumstances leading up to the search—the informant’s known reliability and his detailed report as to the use of the car to store cocaine, the informant’s accurate descriptions of the defendant and the car, his personal knowledge of the defendant’s companion, Marlene, and the defendant’s flight from the car after seeing the police—a proper application of Gates and Barton would support a fair probability that contraband would be found in the defendant’s car. Accordingly, we conclude that the trial court improperly concluded that probable cause was lacking to support a search of the vehicle.

The state also argues that the trial court improperly concluded that the search was unreasonable because it found that “there were no exigent circumstances for a warrantless search . . . .” We agree. The “automobile exception” is premised, in part, upon the inherent mobility of automobiles; see California v. Carney, 471 U.S. 386, 390-91, 105 S. Ct. 2066, 85 L. Ed. 2d 406 (1985); State v. Januszewski, 182 Conn. 142, 155, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981); and that inherent mobility itself creates exigent circumstances. State v. Kolinsky, 182 Conn. 533, 540, 438 A.2d 762 (1980), cert. denied, 451 U.S. 973, 101 S. Ct. 2054, 68 L. Ed. 2d 354 (1981) (exigency when “defendant’s car [was] inherently mobile . . . [and] it was parked on a public street where access was not meaningfully restricted”); State v. Januszewski, supra, 155 (“an automobile is, usually, inherently mobile and, thus, presents a continuing possibility of being moved”).

“Under both the federal and the state constitutions, the police must first obtain a warrant before conducting a search, unless an exception to the warrant requirement applies. See Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (warrant required before every search or seizure, subject only to a few specifically established and well-delineated exceptions ...)....” (Citation omitted; internal quotation marks omitted.) State v. Longo, 243 Conn. 732, 737, 708 A.2d 1354 (1998). One of these recognized exceptions to the warrant requirement is the so-called “automobile exception.” State v. Badgett, 200 Conn. 412, 428-29, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986).

“The justification for . . . [the] ‘automobile exception’ is twofold: (1) the inherent mobility of an automobile creates ‘exigent circumstances’; and (2) the expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office.” Id., 428.

The United States Supreme Court has placed an increasing emphasis on the reduced expectation of privacy justification for the “automobile exception.” See 3 W. LaFave, supra, § 7.2 (b), pp. 476-77. In California v. Carney, supra, 471 U.S. 391, the court stated that “[e]ven in cases where an automobile [is] not immediately mobile, the lesser expectation of privacy resulting from its use as a readily mobile vehicle justifie[s] application of the vehicular exception.” Thus, under the fourth amendment, a warrantless vehicle search does not require a showing of exigent circumstances. See Maryland v. Dyson, 527 U.S. 465, 119 S. Ct. 2013, 144 L. Ed. 2d 447 (1999); Pennsylvania v. Labron, 518 U.S. 938, 116 S. Ct. 2485, 135 L. Ed. 2d 1031 (1996).

In State v. Dukes, 209 Conn. 98, 120, 547 A.2d 10 (1988), we noted that, under the constitution of Connecticut, “the automobile exception permits a warrantless search of an automobile whenever the police have probable cause to do so.” Later, in State v. Miller, 227 Conn. 363, 377, 386-87, 630 A.2d 1315 (1993), we held that a warrantless search of an impounded vehicle violated article first, § 7, of the constitution of Connecticut. Cf. Chambers v. Maroney, 399 U.S. 42, 51-52, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970) (warrantless search of impounded vehicle reasonable under fourth amendment). We stated: “We tolerate the warrantless on-the-scene automobile search only because obtaining a warrant would be impracticable in light of the inherent mobility of automobiles and the latent exigency that that mobility creates.” (Emphasis in original.) State v. Miller, supra, 384-85. In Miller, we reasoned that once a vehicle is impounded, there is no continuing possibility that it will be moved, and therefore obtaining a warrant is no longer impracticable. Id., 385 n.17.

In the present case, there was a continuing possibility that the defendant’s car, which was located in a parking lot accessible to a public housing building, would be moved. The vehicle was not impounded. Cf. State v. Januszewski, supra, 182 Conn. 156 (car “was parked on easily accessible property open to the public”); State v. Williams, 170 Conn. 618, 625, 398 A.2d 140, cert. denied, 429 U.S. 865, 97 S. Ct. 174, 50 L. Ed. 2d 145 (1976) (“car was seized from a public parking lot where access was not meaningfully restricted”).

Accordingly, we conclude that the trial court improperly determined that no exigent circumstances existed. We conclude that under article first, § 7, of the constitution of Connecticut, the warrantless, on-the-scene search of the defendant’s car was reasonable under the circumstances.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other justices concurred.

       General Statutes § 21a-279 (a) provides: “Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than fifty thousand dollars, or be both fined and imprisoned; and for a second offense, may be imprisoned not more than fifteen years or be fined not, more than one hundred thousand dollars, or be both fined and imprisoned; and for any subsequent offense, may be imprisoned not more than twenty-five years or be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

       General Statutes § 21a-278 (a) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person one or more preparations, compounds, mixtures or substances containing an aggregate weight of one ounce or more of heroin, methadone or cocaine or an aggregate weight of one-half gram or more of cocaine in a free-base form or a substance containing five milligrams or more of lysergic acid diethylamide, except as authorized in this chapter, and who is not, at the time of such action, a drug-dependent person, shall be imprisoned for a minimum term of not less than five years nor more than twenty years; and, a maximum term of life imprisonment. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”

       General Statutes § 21a-278a (b) provides: “Any person who violates section 21a-277 or 21a-278 by manufacturing, distributing, selling, prescribing, dispensing, compounding, transporting with the intent to sell or dispense, possessing with the intent to sell or dispense, offering, giving or administering to another person any controlled substance in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school, a public housing project or a licensed child day care center, as defined in section 19a-77, that is identified as a child day care center by a sign posted in a conspicuous place shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section 21a-277 or 21a-278. To constitute a violation of this subsection, an act of transporting or possessing a controlled substance shall be with intent to sell or dispense in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school, a public housing project or a licensed child day care center, as defined in section 19a-77, that is identified as a child day care center by a sign posted in a conspicuous place. For the purposes of this subsection, ‘public housing project’ means dwelling accommodations operated as a state or federally subsidized multifamily housing project by a housing authority, nonprofit coiporation or municipal developer, as defined in section 8-39, pursuant to chapter 128 or by the Connecticut Housing Authority pursuant to chapter 129.”

       General Statutes § 53a-167a (a) provides: “A person is guilty of interfering with an officer when he obstructs, resists, hinders or endangers any peace officer or fireman in the performance of his duties.”

       Although the defendant did not own the vehicle, he did have access to it, and thus we will refer to it as the defendant’s vehicle.

       Eleven bags of crack cocaine had been found in the defendant’s vehicle.

       The fourth amendment to the United States constitution, made applicable to the states through the due process clause of the fourteenth amendment, provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

       Article first, § 7, of the constitution of Connecticut provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”

       Officer Eisenstein testified as follows: “The informant stated to me that there was a vehicle parked in the parking lot of 186 Greenwich Avenue .... The informant described the vehicle as being an old [Oldsmobile] Cutlass, color gray, two door with a blue vinyl roof with a Connecticut plate on the back of the vehicle 679 [MBX]. . . . [The informant] [s]tat,ed [that] inside this vehicle was an unspecific quantity of crack cocaine and 1hat the vehicle was being operated by a black male, approximately 6 feet tall over 200 pounds, muscular build, beard and mustache, wearing a black tee shirt, blue jeans and white sneakers. ... He was in the company of a black female who the [confidential informant] referred to as Marlene.” When Eisenstein was asked how the informant had learned this information, he stated that the informant “had overheard a conversation between Marlene and the black male subject prior to them leaving the area to go get the quantity of crack.” Later, under cross-examination, Eisenstein testified as follows: “The way the information was stated to me, the conversation was that these two people were going to get drugs and bring them back to this location. That they were already back at the location and the drugs were in the vehicle and that the conversation that . . . transpired between Marlene and [the defendant] was . . . something to the effect that the drugs were in the vehicle.”


author: BORDEN, J.

text:
    ROSALIA CALCANO v. DAMARIS CALCANO ET AL.
    (SC 16461)
    Sullivan, C. J., and Borden, Katz, Palmer and Zarella, Js.

      Argued March 13
    officially released July 31, 2001

      James O. Gaston, for the appellant (plaintiff).

      James E. O’Donnell, for the appellee (named defendant).
   Opinion

BORDEN, J.

The plaintiff, Rosalia Calcano, appeals from the judgment of the trial court, rendered after a jury trial, against the named defendant, Damaris Calcano. The plaintiff claims that the trial court improperly admitted into evidence certain office notes and a transcription of the notes prepared by the plaintiff’s chiropractor, Douglas M. Keeney. Specifically, the plaintiff claims that: (1) the office notes and transcription were inadmissible hearsay evidence to which the business records exception; General Statutes § 52-180; did not apply; (2) the notes and transcription did not satisfy the admissibility requirements of General Statutes § 52-174 pertaining to medical records and reports of a deceased expert witness; (3) the transcription contained double hearsay; (4) the transcription was secured without medical authorization in violation of General Statutes § 52-146o prohibiting the disclosure of a patient’s communications or information by a physician; and (5) the transcription was obtained through an ex parte communication between the defendant and Keeney. We affirm the judgment of the trial court.

The plaintiff brought this negligence action against the defendant, her daughter, for injuries that the plaintiff had sustained as a result of a February, 1993 collision in East Haven between an automobile operated by the defendant, in which the plaintiff was a passenger, and a truck owned by Asplundh Tree and operated by Richard A. Thomas. The jury rendered a verdict in favor of the plaintiff, and awarded her $6657.50 in economic damages and $6000 in noneconomic damages. The plaintiff moved to set aside the verdict and for a new trial as to the issue of damages. The trial court denied these motions and rendered judgment in accordance with the verdict. This appeal followed.

The jury reasonably could have found the following facts. On February 3, 1993, the defendant was driving the plaintiff home from an appointment at Keeney’s office. As they were approaching the intersection of Forbes Place and Kimberley Avenue from the south, a truck known as a tree trimmer, which was operated by Thomas, was approaching the intersection from the east. At that intersection there was a three-way stop sign for all traffic except that approaching from the north. After coming to a complete stop, Thomas slowly proceeded through the intersection. The defendant failed to stop, however, and proceeded through the intersection striking the Asplundh Tree vehicle. Although neither the defendant nor Thomas was injured, the plaintiff was taken by ambulance to Yale-New Haven Hospital for examination. She was treated for head, neck and back pain, and was released that same day.

On or about February 15, 1993, the plaintiff returned to Keeney, who believed that the plaintiff was in need of a cervical support and lumbar support. On March 1, 1993, to aid in her recovery, the plaintiff began treatment at the Functional Restoration Center (center) in Fairfield. She enrolled in the center’s enhancement program in the hopes of alleviating her neck, shoulder and lower back pain. Thereafter, the plaintiff exacerbated a previous knee problem, and she chose to discontinue treatment at the center in order to begin treatment on her knee. The plaintiff consulted with Eric J. Katz, an orthopedic surgeon, on four occasions, the last of which took place in July, 1993. In 1996, the plaintiff moved to Florida where, sometime before April, 1998, she sought additional treatment for her injuries.

In November, 1993, the plaintiff brought this negligence action seeking monetary damages for the injuries that she had suffered. An extensive discovery process ensued. The defendant sought any information that would tend to show that the plaintiff had suffered any preexisting injuries. In the defendant’s standard request for disclosure and production, the defendant sought, among other items, reports from any doctors or other care providers that related to any treatment that the plaintiff had received for injuries arising from this accident or from any similar injuries within the previous ten years. Among the records the plaintiff disclosed were those from the center, including a report from Joel S. Feigenson, a physician, which contained a reference to a prior history of lower back pain stemming from “an accident eight years ago.” The report stated that the plaintiff had been treated by Keeney. When then counsel for the defendant, Ida H. Rodriguez, inquired about the existence of any treatment notes regarding the earlier accident, the plaintiffs attorney, James O. Gaston, agreed to contact Keeney and send to Rodriguez any notes that Keeney had provided.

On September 14, 1995, Gaston sent a letter to Keeney’s office requesting “any medical notes, reports and records” of all services rendered to the plaintiff. On September 18, 1995, Keeney sent to the plaintiff two pages of partly indecipherable handwritten notes concerning the plaintiff. Accompanying the notes was a transmittal letter from Keeney addressed to Gaston, which stated that, because the notes were written with “a system of abbreviations, coding and short-hand,” they would be “totally unintelligible to anyone except [Keeney] . . . .” Keeney therefore offered to Gaston to “send a narrative report” upon the receipt of $125. On January 23, 1996, Gaston sent a copy of Keeney’s transmittal letter to O’Donnell, along with a copy of the notes.

In order to secure a transcription, O’Donnell telephoned Keeney to confirm the proper mailing address, and then sent a letter, which was dated June 28, 1996, requesting a transcription of the office notes, along with a check for $125. O’Donnell requested that Keeney, in addition to transcribing the notes, “ ‘spell out’ ” any abbreviations developed by him or that commonly were used within the medical community. In July, 1996, Keeney sent a three page transcription to O’Donnell.

At trial, the issue of whether the plaintiff had any preexisting injuries was sharply contested, with the notes and transcription from Keeney potentially serving an important function in that regard. The plaintiff testified that, prior to the incident in the present case, the only other car accident in which she had been involved was “about twenty years ago.” She also testified that she had no recollection of falling down a flight of stairs in November, 1992. Keeney’s transcription states, however, that: “She did good until 11-92. Fell down a flight of stairs.” Furthermore, the transcription covers visits beginning in June, 1990. The notes from this visit state: “Now, swollen right shoulder and neck.” When read in conjunction with the February 24, 1993 report from the center, which mentioned an accident eight years earlier and subsequent treatment by Keeney, a jury reasonably could have chosen to discredit the plaintiffs version of events. Thus, the admissibility of Keeney’s transcription became an important issue at trial.

Because Keeney had passed away before the commencement of trial, the defendant sought to admit Keeney’s notes pursuant to §§ 52-174 and 52-180. In order to satisfy the requirements of § 52-180, the defendant offered the testimony of Keeney’s widow, Kathleen Keeney, and Keeney’s office manager, Judith Travaglino. Kathleen Keeney testified that Keeney’s usual practice was to keep handwritten records regarding each patient in separate files, which reflected the treatment provided for or other information obtained from the patient. She identified the handwriting in the notes at issue as Keeney’s. She further testified that it was part of his normal practice to make a typewritten transcription of his handwritten notes upon request, and that he normally did this transcription himself, at home on his personal computer. Travaglino testified that she had worked for Keeney for approximately eight years and also was familiar with his normal record keeping practices. She corroborated Kathleen Keeney’s testimony concerning his note-taking and transcription practices. Travaglino also testified that she recalled Keeney handing her the transcription of the plaintiffs record and that she subsequently mailed it to O’Donnell. Neither Travaglino nor Kathleen Keeney, however, observed Keeney write his original set of notes or later transcribe those notes and, thus, they were unable to testify as to precisely when the notes and the transcription had been made.

On the basis of the testimony of Kathleen Keeney and Travaglino, the defendant sought to enter into evidence Keeney’s handwritten notes concerning the plaintiff and the typed transcription of those notes. The plaintiff objected on the grounds that both items were hearsay, and did not fall within either the business records exception of § 52-180 or within the medical records and reports exception of § 52-174. Additionally, the plaintiff argued that the transcription had been obtained through ex parte communications and in violation of § 52-146o; see footnote 5 of this opinion.

The trial court overruled the plaintiffs objections, ruling that both items were admissible under §§ 52-174 and 52-180. The trial court stated: “I also think that the sending of the letter by Mr. Gaston to Mr. O’Donnell’s office from Dr. Keeney talking about getting the shorthand translated is an invitation to go get that information and he didn’t ask for additional information. He asked to get a transcription of the notes, so I’ll allow the notes into evidence.”

Before addressing the merits of the plaintiffs claims, we briefly set forth the standard by which we review the plaintiffs claims. “On appeal, a trial court’s ruling as to the admissibility of evidence is accorded great deference . . . and we will reverse such a ruling only upon a showing of a clear abuse of discretion.” (Citation omitted.) Wagner v. Clark Equipment Co., 243 Conn. 168, 196, 700 A.2d 38 (1997).

I

The plaintiff first claims that the trial court improperly admitted Keeney’s notes and transcription into evidence pursuant to § 52-180, which sets forth the business records exception to the hearsay rule. Specifically, the plaintiff argues that the notes and the transcription improperly were admitted pursuant to § 52-180 because the defendant was unable to show that either document had been made contemporaneously with or within a reasonable time after the treatment had been performed. We disagree.

“To be admissible under the business record exception to the hearsay rule, a trial court judge must find that the record satisfies each of the three conditions set forth in ... § 52-180. The court must determine, before concluding that it is admissible, that the record was made in the regular course of business, that it was the regular course of such business to make such a record, and that it was made at the time of the act described in the report, or within a reasonable time thereafter. ... In applying the business records exception, the statute [§ 52-180] should be liberally inteipreted.” (Citations omitted; internal quotation marks omitted.) Bell Food Services, Inc. v. Sherbacow, 217 Conn. 476, 485, 586 A.2d 1157 (1991). In part, this is because the statute recognizes the inherent trustworthiness of documents created for business rather than litigation purposes. Emhart Industries, Inc. v. Amalgamated Local Union376, U.A.W., 190 Conn. 371, 388-89, 461 A.2d 422 (1983).

This court repeatedly has held that “[i]t is not necessary . . . that the witness have been the entrant himself or in the employ of the business when the entry was made.” (Internal quotation marks omitted.) Bell Food Services, Inc. v. Sherbacow, supra, 217 Conn. 485. It is sufficient for a witness to testily that it was the regular business practice to create a document within a reasonable time after the occurrence of the event. This is sufficient to ensure that the document was created at the time when the event was fresh in the author’s mind. Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., supra, 190 Conn. 388-89. Notations in the document itself may satisfy the contemporaneous requirement. River Dock & Pile, Inc. v. O & G Industries, Inc., 219 Conn. 787, 797, 595 A.2d 839 (1991).

We first consider the admissibility of the notes prepared by Keeney concerning the plaintiffs treatment. At trial, the defendant introduced Keeney’s notes through Kathleen Keeney and Travaglino. Travaglino testified that Keeney was very orderly and that, as he performed whatever course of action he deemed necessary, he would “write down everything that he did to [the patients].” She further testified that Keeney took these notes either while he was meeting with a patient or shortly thereafter. We conclude that the trial court did not abuse its discretion in determining that the handwritten notes of Keeney were admissible under § 52-180.

To require the defendant to produce a witness that could testify from personal knowledge as to the specific time that a particular document was made would unduly constrain the use of the business records exception and directly contradict the liberal interpretation that this court has accorded to § 52-180. Travaglino’s testimony that Keeney ordinarily wrote down his notes while he treated the patient or shortly thereafter, coupled with an examination of the handwritten notes, which contained dates corresponding to each entry, was sufficient to support the trial court’s conclusion that Keeney’s notes satisfied the requirements of § 52-180.

We next consider the admissibility of the transcription of these notes. A comparison of the transcription to the original notes shows that the transcription closely tracks the writing contained in the notes, with each document containing the same dates and most of the same terms. Although Keeney, in his letter offering to translate his notes, describes his “system of abbreviations, coding and shorthand” as “totally unintelligible to anyone except [himself],” this is an exaggeration. Although some symbols or terms could have been explained only by Keeney, there are phrases in the notes that cannot be mistaken. For example, in an entry dated June 11,1990, Keeney scrawled: “Can’t wash hair, [indecipherable] raise arms, can’t hook [indecipherable] (on uniform).” In the transcription of the notes, Keeney wrote: “Can’t wash hair, can’t hook bra (on uniform).” There are enough of these types of passages for the trial court to have assured itself that the latter document was merely a translation of the former document, which we have deemed admissible. Additionally, Kathleen Keeney and Travaglino testified that it had been a regular part of Keeney’s practice to make typewritten transcriptions of his handwritten notes upon request, that he normally had done them on his home computer, and that he had been the only person who would do the transcribing. Travaglino further testified that she recalled Keeney handing her the plaintiffs transcription in order to mail it to O’Donnell, which she did, in July, 1996.

Taking into account these facts, and in keeping with the policy underlying the business records exception, namely, “that the essential hallmark of admissibility under § 52-180 is the trustworthiness of the document”; Jefferson Garden Associates v. Greene, 202 Conn. 128, 141, 520 A.2d 173 (1987); we conclude that it was not an abuse of discretion for the trial judge to have admitted into evidence the transcription of Keeney’s notes. The fact that the transcription had not been prepared contemporaneously with the acts described in the report is not fatal to its admissibility, because it was merely a transcription of a document that itself had been prepared contemporaneously with the plaintiffs treatment. The transcription was not a completely independent document that was required, in and of itself, to satisfy the business records statute. Where, as here, the original document was admissible into evidence, and there was sufficient indication that the transcription contained substantially the same information, the transcription was also admissible.

The plaintiff points out that, because Keeney had added parenthetical information in the transcription, which explained some of his symbols, it is impossible to know whether some information contained in the original notes had not been transcribed, and whether some information not contained in the original notes had been added to the transcription. Once a trial judge determines that a writing qualifies as a business record, however, it is the responsibility of the objecting party to make specific objections to those portions of the report that it wants redacted. Aspiazu v. Orgera, 205 Conn. 623, 628, 535 A.2d 338 (1987). It is not the trial court’s responsibility to attempt to separate the admissible and inadmissible portions of the transcription. Mucci v. LeMonte, 157 Conn. 566, 571, 254 A.2d 879 (1969). In the present case, after making an initial objection to the admission of the transcription as a whole, the plaintiff made no further attempt to challenge the admissibility of specific portions of the writing. The plaintiffs argument, therefore, is unavailing.

The plaintiff further mentions, albeit in a cursory manner and for the first time in her reply brief, that Keeney’s file contained two sets of handwritten notes, which contained much of the same information as the transcription, so that one cannot be sure which set of notes Keeney used to make the transcription. “It is a well established principle that arguments cannot be raised for the first time in a reply brief.” (Internal quotation marks omitted.) Ramos v. Vernon, 254 Conn. 799, 843-44, 761 A.2d 705 (2000). “Our practice requires an appellant to raise claims of error in his original brief, so that the issue as framed by him can be fully responded to by the appellee in its brief, and so that we can have the full benefit of that written argument. Although the function of the appellant’s reply brief is to respond to the arguments and authority presented in the appellee’s brief, that function does not include raising an entirely new claim of error.” (Internal quotation marks omitted.) State v. Garvin, 242 Conn. 296, 312, 699 A.2d 921 (1997). We therefore decline to consider the plaintiffs untimely claim.

II

The plaintiff also claims that the trial court improperly admitted the transcription because it contained double hearsay, thus placing the transcription outside any hearsay exception. Because the plaintiff failed in the trial court to articulate this objection at an appropriate time, we decline to review this issue on appeal.

“We have stated repeatedly that we ordinarily will not review an issue that has not been properly raised before the trial court. See, e.g., Santopietro v. New Haven, 239 Conn. 207, 219-20, 682 A.2d 106 (1996) (court ‘not required to consider any claim that was not properly preserved in the trial court’); Yale University v. Blumenthal, 225 Conn. 32, 36 n.4, 621 A.2d 1304 (1993) (court declined to consider issues briefed on appeal but not raised at trial); see also Practice Book § 60-5 (‘court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial’).” Bell Atlantic Mobile, Inc. v. Dept. of Public Utility Control, 253 Conn. 453, 485, 754 A.2d 128 (2000). We see no cause to deviate from that general policy here.

Ill

The plaintiff further claims that the trial court improperly admitted the transcription into evidence because it had been obtained without medical authorization in violation of § 52-146o. We disagree.

Section 52-146o (a) provides in relevant part: “Except as provided in sections 52-146c to 52-146j ... a physician . . . shall not disclose . . . any information obtained by him from, a patient . . . unless the patient or his authorized representative explicitly consents to such disclosure.” (Emphasis added.) After the trial court concluded that the transcription was admissible under §§ 52-174 and 52-180, the trial court added: “I also think that the sending of the letter by Mr. Gaston to Mr. O’Donnell’s office from Dr. Keeney talking about getting the shorthand translated is an invitation to go get that information . . . .” In its memorandum of decision denying the plaintiffs motion to set aside the verdict, the trial court elaborated: “[T]here was no need for the plaintiffs attorney to send to the defendant’s attorney the letter of transmittal requesting a check for $125 for such a transcription unless it was contemplated that the defendant’s attorney would undertake such action. . . . [T]he forwarding of the letter of transmittal constitutes an implied authorization to forward the check to the doctor . . . .” We agree, and conclude that the plaintiffs actions constituted not only an implied authorization, but explicit consent for the defendant to obtain a transcription of Keeney’s notes. Where, as here, the plaintiff’s own attorney in a personal injury case explicitly forwards this information and invitation to the adversary, as part of an informal discovery process, the plaintiff was bound by the conduct of her attorney, who was her “authorized representative”; General Statutes § 52-146o (a) (2); for such purposes. Accordingly, we conclude that the transcription was not obtained in violation of § 52-146o.

When Gaston forwarded a copy of Keeney’s medical records with the transmittal letter from Keeney to Gas-ton offering to transcribe his notes upon the receipt of $125, Gaston, as the plaintiffs attorney, must be deemed to have expected the defendant to procure such a transcription. This is particularly so where the original notes were in Keeney’s special coding and Gaston enclosed with the notes a letter explaining how to obtain a transcription of those notes. If Gaston, as the plaintiffs attorney, did not intend this letter to be considered authorization for the defendant to procure a transcription, as the person in the best position to control the use of the notes, he could have indicated as such in the letter.

The plaintiff also claims that even if the requirement of § 52-146o that the consent be “explicit” was satisfied, the statute also requires that the consent be written and signed. Without deciding whether the term “explicit consent” requires such consent to be in writing, we conclude that the letter to O’Donnell dated January 23, 1996, written and signed by the plaintiffs attorney and authorized representative for such purposes, constituted a sufficient writing under § 52-146o. Thus, the explicit consent given in writing by the plaintiffs attorney was sufficient to satisfy § 52-146o.

IV

Finally, the plaintiff claims that the trial court improperly admitted the transcription because it was obtained through ex parte communications between O’Donnell and Keeney. Specifically, the plaintiff challenges a telephone call between O’Donnell and Keeney in which O’Donnell requested the proper address to which to mail his $125 check for the transcription. The plaintiff also challenges the letter sent from O’Donnell to Keeney requesting the transcription. As the plaintiff conceded in this court, however, if there was no breach of § 52-146o, there would be no wrongful ex parte communications in the present case. Because we concluded in part III of this opinion that there was no violation of § 52-146o, we conclude that the plaintiffs claim is without merit.

The judgment is affirmed.

In this opinion the other justices concurred.

       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 § 65-1 and General Statutes § 51-199 (c).

       The Asplundh Tree Expert Company (Asplundh Tree) and one of its employees, Richard A. Thomas, were also defendants in the underlying action. A judgment was rendered in favor of those defendants, neither of whom is involved in this appeal. References throughout this opinion to the defendant are to Damaris Calcano only.

       General Statutes § 52-180 provides: “(a) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.
      “(b) The writing or record shall not be rendered inadmissible by (1) a party’s failure to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence or event recorded or (2) the party’s failure to show that such persons are unavailable as witnesses. Either of such facts and all other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of the evidence, but not to affect its admissibility.
      “(c) Except as provided in the Freedom of Information Act, as defined in section 1-200, if any person in the regular course of business has kept or recorded any memorandum, writing, entry, print, representation or combination thereof, of any act, transaction, occurrence or event, and in the regular course of business has caused any or all of them to be recorded, copied or reproduced by any photographic, photostatic, microfilm, micro-card, miniature photographic or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless its preservation is otherwise required by statute. The reproduction, when satisfactorily identified, shall be as admissible in evidence as the original in any judicial or administrative proceeding, whether the original is in existence or not, and an enlargement or facsimile of the reproduction shall be likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of court. The introduction of a reproduced record, enlargement or facsimile shall not preclude admission of the original.
      “(d) The term ‘business’ shall include business, profession, occupation and calling of every kind.”
      Although the legislature made a technical change to § 52-180 (c) since 1993, the time of the accident in this case, the statute remains substantively the same. References in this opinion to § 52-180 are to the current revision.

       General Statutes § 52-174 provides: “(a) In all actions for the recovery of damages for personal injuries or death, (1) if a physician, dentist, chiropractor, natureopath, physical therapist, podiatrist, psychologist, emergency medical technician, optometrist, professional engineer or land surveyor has died prior to the trial of the action, or (2) if a physician, dentist, chiropractor, natureopath, physical therapist, podiatrist, psychologist, emergency medical technician, optometrist, professional engineer or land surveyor is physically or mentally disabled at the time of the trial of the action to such an extent that such person is no longer actively engaged in the practice of the profession, the party desiring to offer into evidence the written records and reports of the physician, dentist, chiropractor, natureopath, physical therapist, podiatrist, psychologist, emergency medical technician or optometrist concerning the patient who suffered the injuries or death and the reports and scale drawings of the professional engineer or land surveyor concerning matter relevant to the circumstances under which the injuries or death was sustained shall apply to the court in which the action is pending for permission to introduce the evidence. Notice of the application shall be served on the adverse party in the same manner as any other pleading. The court to which the application is made shall determine whether the person is disabled to the extent that the person cannot testify in person in the action. Upon the court finding that the person is so disabled, the matters shall be admissible in evidence as a business entry in accordance with the provisions of section 52-180 when offered by any party in the trial of the action.
      “(b) In all actions for the recovery of damages for personal injuries or death, pending on October 1, 1977, or brought thereafter, and in all court proceedings in family relations matters, as defined in section 46b-l, or in the Family Support Magistrate Division, pending on October 1, 1998, or brought thereafter, any party offering in evidence a signed report and bill for treatment of any treating physician, dentist, chiropractor, natureopath, physical therapist, podiatrist, psychologist, emergency medical technician or optometrist may have the report and bill admitted into evidence as a business entry and it shall be presumed that the signature on the report is that of the treating physician, dentist, chiropractor, natureopath, physical therapist, podiatrist, psychologist, emergency medical technician or optometrist and that the report and bill were made in the ordinary course of business. The use of any such report or bill in lieu of the testimony of such treating physician, dentist, chiropractor, natureopath, physical therapist, podiatrist, psychologist, emergency medical technician or optometrist shall not give rise to any adverse inference concerning the testimony or lack of testimony of such treating physician, dentist, chiropractor, natureopath, physical therapist, podiatrist, psychologist, emergency medical technician or optometrist.
      “(c) This section shall not be construed as prohibiting either party or the court from calling the treating physician, dentist, chiropractor, natureopath, physical therapist, podiatrist, psychologist, emergency medical technician or optometrist as a witness.”
      Although the legislature made technical changes to § 52-174 (c) since 1993, the time of the accident in this case, the statute remains substantively the same. References in this opinion to § 52-174 are to the current revision.

       General Statutes § 52-146o provides: “(a) Except as provided in sections 52-146c to 52-146j, inclusive, and subsection (b) of this section, in any civil action or any proceeding preliminary thereto or in any probate, legislative or administrative proceeding, a physician or surgeon, as defined in subsection (b) of section 20-7b, shall not disclose (1) any communication made to him by, or any information obtained by him from, apatient or the conservator or guardian of a patient with respect to any actual or supposed physical or mental disease or disorder or (2) any information obtained by personal examination of apatient, unless the patient or his authorized representative explicitly consents to such disclosure.
      “(b) Consent of the patient or his authorized representative shall not be required for the disclosure of such communication or information (1) pursuant to any statute or regulation of any state agency or the rules of court, (2) by a physician, surgeon or other licensed health care provider against whom a claim has been made, or there is a reasonable belief will be made, in such action or proceeding, to his attorney or professional liability insurer or such insurer’s agent for use in the defense of such action or proceeding, (3) to the Commissioner of Public Health for records of a patient of a physician, surgeon or health care provider in connection with an investigation of a complaint, if such records are related to the complaint, or (4) if child abuse, abuse of an elderly individual, abuse of an individual who is physically disabled or incompetent or abuse of an individual with mental retardation is known or in good faith suspected.”
      Although the legislature made technical changes to § 52-146o since 1993, the time of the accident in this case, the statute remains substantively the same. References in this opinion to § 52-146o are to the current revision.

       This report was dated February 24, 1993, thus placing the time of the previous accident sometime around 1985.

       During this time period, the defendant was represented by Rodriguez. In the fall of 1995, attorney James E. O’Donnell filed an appearance on behalf of the defendant and has represented the defendant since then.

       The text of Gaston’s letter to O’Donnell provided: “Please find enclosed copies of Dr. Keeney’s office notes with respect to the above case. If you have any questions, please do not hesitate to contact me directly.” The trial court specifically found that Gaston also had forwarded Keeney’s transmittal letter to the defendant’s attorney. Gaston claims that he forwarded the letter to Rodriguez. O’Donnell testified that he did not recall how he received the letter. Our conclusion does not depend on how O’Donnell came into possession of the transmittal letter. Gaston concedes that he forwarded both the notes and the transmittal letter to one of the defendant’s attorneys, either Rodriguez or O’Donnell. Moreover, Gaston makes no claim that he instructed Rodriguez not to get a transcription, and Rodriguez would have had to turn over all of her documents to O’Donnell once he assumed the defense. Thus, O’Donnell was rightfully in possession of the transmittal letter.

       See footnotes 3 and 4 of this opinion for the texts of §§ 52-174 and 52-180.

       This conclusion, namely, that both the notes and transcription were admissible under § 52-180, renders it unnecessary to consider the plaintiffs contention that they were not admissible under § 52-174.

       The first time that the plaintiff properly articulated a double hearsay claim was in the motion to set aside the verdict. By then it was too late to cure any double hearsay defects, if there were any, by appropriate redactions.

       We note, however, that an examination of the surrounding sections of chapter 899 of the General Statutes reveals that there are specific definitions for the term “consent” contained in the following: General Statutes § 52-146c, involving privileged communications between a psychologist and a patient; General Statutes §§ 52-146d through 52-146Í, involving privileged communications between a psychiatrist and a patient; General Statutes § 52-146p, involving privileged communication between a family therapist and a person consulting such therapist; General Statutes § 52-146q, involving confidential communications between a social worker and a person consulting such social worker; and General Statutes § 52-146s, involving confidential information between a professional counselor and a person consulting such counselor. In all of these sections, consent may be given only through a writing.