State v. Rosado

52 Conn. App. 408

726 A.2d 1177

STATE OF CONNECTICUT v. JOSE ROSADO

(AC 17190)

Appellate Court of Connecticut.

Argued September 18, 1998.

Officially released March 30, 1999.

Lavery, Landau and Hennessy, Js. Thomas B. Pursell, special public defender, for the appellant (defendant).

Bruce R. Lockwood, deputy assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Herbert E. Carlson, Jr., supervisory assistant state's attorney, for the appellee (state).

Opinion

LAVERY, J.

The defendant, Jose Rosado, appeals from the judgment of conviction, rendered after a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a) and assault in the third degree in violation of General Statutes § 53a-61 (a) (1). The defendant was sentenced to twenty years imprisonment and this appeal followed.

On appeal, the defendant claims that the trial court improperly (1) denied his motions for disclosure of the victim's psychiatric records, (2) denied his April 9, 1992 pretrial motion for disclosure of the names of the victim's mental health care providers, (3) admitted into evidence a letter as evidence of his consciousness of guilt and (4) denied his motion to dismiss defense counsel. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim and the defendant resided together for approximately nine years and separated in 1989. On the evening of May 15, 1991, the defendant visited the victim at her apartment in Hartford. The defendant and the victim talked for several hours, and, when the victim asked the defendant to leave her apartment, he refused. The defendant then forcibly dragged the victim into a bedroom and threw her onto a mattress. While the defendant was binding the victim's hands, she cried and begged him to stop. The defendant then raped the victim. He was arrested and subsequently convicted of the crimes charged. This appeal followed. Additional facts will be set forth where relevant to the issues on appeal.

I

The defendant first claims that the trial court improperly denied his motions for disclosure of the victim's psychiatric records. Specifically, the defendant contends that the trial court's failure to disclose this information violated his right to confrontation under the sixth amendment to the United States constitution¹ and article first, § 8, of our state constitution,² and his right to due process under the fourteenth amendment to the United States constitution³ and article first, § 8, of our state constitution. Additionally, he asks this court to overrule our Supreme Court's decision in State v. Harris, 227 Conn. 751, 768-69, 631 A.2d 309 (1993). We are not persuaded by the defendant's claims.

Additional facts are necessary to a resolution of these claims. On April 9, 1992, the defendant filed a pretrial motion for disclosure, petitioning the trial court to order the state to provide him with information concerning the victim's psychiatric treatment. The defendant's request for disclosure was predicated on his claim that he had accompanied the victim to several mental health facilities during the course of their nine year relationship. Although the trial court did not order the state to disclose that information, it informed the state that, on the basis of the information provided by the defendant, the state was entitled to ask the victim whether she had received psychiatric treatment. With the state's assistance, the defendant ultimately subpoenaed the victim's records from four mental health facilities.⁴ These records were sealed and turned over to the trial court. On April 20, 1992, after the state had concluded its direct examination of the victim, the defendant petitioned the trial court for disclosure of the victim's psychiatric records so that he could use this information to establish that the victim's psychiatric condition affected her ability to observe, recall and narrate events at issue in the trial. The trial court denied the defendant's request and asked him to proceed with his cross-examination of the victim.⁵

Thereafter, outside the presence of the jury, the defendant attempted to prove that the victim's psychiatric records contained information that was probative of her ability to observe, recall and narrate relevant events and, therefore, disclosure of those records was warranted. After the defendant concluded his offer of proof, the trial court observed that the state "had complied with [the court's request for disclosure] and, as a result, the court has been furnished with reports from four different organizations." After the trial court considered the testimony of the defendant and the victim and reviewed in camera the victim's records from United Services and Hartford Hospital,⁶ it denied the defendant access to the victim's records on the ground that they did not contain information relevant to the testimonial capacity of the victim.⁷ The trial court also denied the defendant's request for an in camera review of the victim's records from Norwich State Hospital and New Britain General Hospital because he did not establish a sufficient foundation to warrant in camera review.

On June 11, 1992, the defendant renewed this claim in his motion for a new trial. In denying the defendant's motion, the trial court, having reviewed in camera the victim's psychiatric records from United Services, Hartford Hospital and Norwich State Hospital,⁸ stated that "there was nothing in those records that would give the defense an opportunity to impeach her credibility or to test her ability to perceive, recollect or articulate."⁹

A

The defendant first claims that the trial court's failure to disclose the victim's psychiatric records violated his right to confrontation under the sixth amendment to the United States constitution and article first, § 8, of our state constitution. We disagree.¹⁰

The people of this state enjoy a broad privilege in the confidentiality of their psychiatric communications and records. See General Statutes §§ 52-146d and 52-146e. "A criminal defendant has a constitutional right to cross-examine state witnesses, however, which may include impeaching or discrediting them by attempting to reveal to the jury the witnesses' biases, prejudices or ulterior motives, or facts bearing on the witnesses' reliability, credibility, or sense of perception.... Thus, in some instances, a patient's psychiatric privilege must give way to a criminal defendant's constitutional right to reveal to the jury facts about a witness' mental condition that may reasonably affect the witness' credibility.... The defendant's right of cross-examination does not, however, allow him to discredit and impeach in whatever way, and to whatever extent, the defense might wish.... [Our Supreme Court has] therefore directed trial courts to engage in a specific procedure designed to accommodate this inherent tension." (Citations omitted; internal quotation marks omitted.) State v. D'Ambrosio, 212 Conn. 50, 55-57, 561 A.2d 422 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990).

"If, for the purposes of cross-examination, a defendant believes that certain privileged records would disclose information especially probative of a witness' ability to comprehend, know or correctly relate the truth, he may, out of the jury's presence, attempt to make a preliminary showing that there is a reasonable ground to believe that the failure to produce the records would likely impair his right to impeach the witness. State v. Pierson, [201 Conn. 211, 225, 514 A. 2d 724 (1986), on appeal after remand, 208 Conn. 683, 546 A.2d 268 (1988), cert. denied, 489 U.S. 1016, 109 S. Ct. 1131, 103 L. Ed. 2d 193 (1989)]; State v. Esposito, 192 Conn. 166, 179, 471 A.2d 949 (1984)." (Internal quotation marks omitted.) State v. Pratt, 235 Conn. 595, 607, 669 A.2d 562 (1995). "If in the trial court's judgment the defendant successfully makes this showing, the state must then obtain the witness' permission for the court to inspect the records in camera. A witness' refusal to consent to such an in camera inspection entitles the defendant to have the witness' testimony stricken." (Internal quotation marks omitted.) Id. "Upon inspecting the records in camera, the trial court must determine whether the records are especially probative of the witness' capacity to relate the truth or to observe, recollect and narrate relevant occurrences.... If the court determines that the records are probative, the state must obtain the witness' further waiver of his privilege concerning the relevant portions of the record for release to the defendant, or have the witness' testimony stricken. If the court discovers no probative and impeaching material, the entire record of the proceeding must be sealed and preserved for possible appellate review.... Once the trial court has made its inspection, the court's determination of a defendant's access to the witness' records lies in the court's sound discretion, which we will not disturb unless abused." (Internal quotation marks omitted.) State v. Howard, 221 Conn. 447, 457-58, 604 A.2d 1294 (1992).

On April 20, 1992, although the defendant did not satisfy the threshold requirement set forth in State v. Esposito, supra, 192 Conn. 179-80, the trial court nonetheless reviewed in camera, with the victim's consent, psychiatric records from United Services and Hartford Hospital.¹¹ The trial court denied the defendant's request for access to those records. On that same date, the trial court also denied the defendant's request for an in camera inspection of the victim's records from Norwich State Hospital, but later, with the victim's consent, it inspected those records. On June 11, 1992, the trial...