236 Conn. 514 | Conn. | 1996
Lead Opinion
The defendant, Martyn D. Bruno, was convicted after a trial to a three judge court of one count of murder in violation of General Statutes §§ 53a-54a and 53a-8, and of three counts of tampering with physical evidence in violation of General Statutes §§ 53a-155 (a) (1) and SSa-S.
The defendant raises several claims on appeal. He first claims that: (1) the trial court improperly concluded that he had failed to make a sufficient preliminary showing, under the relevant state law standard, to warrant its in camera inspection of certain confidential records of two state’s witnesses; (2) alternatively, the trial court improperly prevented him from making the requisite preliminary showing; and (3) the trial court improperly failed to secure for the record certain of the privileged records to which he sought access. He next claims that there was insufficient evidence to support his murder conviction because: (1) there was insufficient evidence of his intent to kill the victim; and (2) the evidence failed to establish that he, and not the state’s two key witnesses, killed the victim. Finally, he claims that the trial court improperly: (1) admitted certain testimony; (2) admitted certain physical evidence; and (3) limited his cross-examination of a state’s witness. We affirm the judgment of conviction.
The court reasonably could have found the following facts. During the evening of July 17,1991, David Rusinko
During the afternoon of July 17,1991, Bingham sought out Rusinko in New Hartford to ask him to buy liquor and to meet him later that evening, which Rusinko agreed to do. At approximately 6 p.m., Bingham and Ignacak went to the defendant’s home and the three went to the lower camp. While there, the defendant told them that he was angry at Rusinko for his role both in the defendant’s most recent conviction for drunk driving
At approximately 8 p.m., the group moved to the cabin at the upper camp. Shortly after their arrival, while Rusinko was inside the cabin, the defendant joined Bingham and Ignacak on the porch and again told them that he intended to harm Rusinko. Shortly thereafter, the defendant began yelling at and shoving Rusinko, but stopped when Ignacak suffered a seizure of some sort. After Ignacak had recovered, the altercation between the defendant and Rusinko resumed, and Bingham stepped in and knocked Rusinko to the floor. The defendant and Bingham then proceeded to beat Rusinko into unconsciousness, first by punching and kicking him, and then by hitting him with pieces of metal pipe that had been lying about the cabin. The defendant next attempted to break Rusinko’s neck and, when that failed, slashed his throat. When it appeared
The defendant and Bingham returned to the cabin one or two days later to dispose of Rusinko’s remains and to conceal other evidence of the murder. They smashed Rusinko’s bones in the fireplace, collected them into a plastic bag, and disposed of them in an outhouse at the camp. Police investigating the murder recovered a small amount of human skeletal remains from the outhouse, which were identified as Rusinko’s. The defendant and Bingham also threw off the porch the steel pipes that had been burned in the fireplace, attempted to cover blood stains around the cabin with fresh paint, burned the porch railings and the plastic bag and, sometime later, disassembled and buried Rusinko’s bicycle.
At trial, the defendant testified in his own defense. He claimed that during the day and evening of the murder he had consumed a great deal of alcohol and Valium and, as a result, had experienced a blackout that evening at the upper camp, which left him unable to remember Rusinko’s murder. He admitted to concealing the evidence of the murder with Bingham. His theories of defense were: (1) that Bingham and Ignacak had killed Rusinko without his participation;
I
Prior to trial, the defendant moved for disclosure and an in camera examination of any psychiatric records of Ignacak and Bingham for the purpose of discovering material therein relevant to their abilities accurately to perceive, recall and relate events. To this end, he subpoenaed certain of their psychiatric and school records.
A
We turn first to the defendant’s claim that the trial court improperly concluded that his offers of proof were insufficient, under Connecticut law, to warrant its in camera inspection of Ignacak’s and Bingham’s psychiatric and special education records. We are not persuaded by the defendant’s claim.
It is well settled in this state that before a criminal defendant may obtain an in camera inspection of a witness’ confidential records
The defendant called two witnesses in connection with his attempt to obtain an in camera inspection of Ignacak’s records, Ignacak and S. Patricia Keener, the special education administrator at Ignacak’s high school. Ignacak testified that she had been enrolled in a special education program during her senior year of
Keener confirmed that Ignacak had been enrolled in the department’s academic classes, but stated that “she didn’t really have any memory problems, or associative problems, or organizational problems. She had trouble sustaining a commitment to school, and she had trouble with the school rules. And she had interpersonal diffi
The defendant argues that Ignacak’s admitted memory and interpersonal problems, which he claims may have reflected an “irrationality” or “irrational animosity” toward others, combined with her concession on direct examination that there were inconsistencies in the several statements she gave to police,
In evaluating the sufficiency of the defendant’s offer of proof, what is at issue is the existence of a mental problem that may bear on the witness’ testimonial capacity, not the witness’ general character or intelli
With regard to Bingham’s records, the defendant called as witnesses Ian Bingham, Bingham’s father, and Keener. Ian Bingham testified that his son had been living with him for approximately two years before the murder, during which time Bingham had run away to New York. He had been told that Bingham had used drugs involving needles while in New York and had observed track marks on his arms when he returned. Subsequently, he observed signs of Bingham’s drinking, but had no knowledge of his taking any other drugs. After Bingham returned from New York, he entered a psychiatric treatment program at Mount Sinai Hospital. His father further testified that he was not sure what the purpose of the program had been, but believed that it had included treatment for substance abuse.
Keener testified that Bingham was involved in his high school’s special education program from the fall of 1989, after his treatment in the Mount Sinai Hospital program, to some time in 1991, when he dropped out of school. She stated that Bingham was considered by the school to be a “socially] and emotional[ly] maladjusted and emotionally disturbed youngster,” and that his emotional problems manifested themselves in his disregard of school rules, and his “terrible time dealing with authority figures,” including rudeness, disrespect and extensive disruption of the classroom. She stated,
The defendant argues that Bingham’s emotional problems, substance abuse and having received psychiatric treatment provided a sufficient basis to warrant an in camera inspection of his special education and psychiatric records for evidence of a mental condition bearing on his testimonial capacity. We again disagree.
The defendant established only that Bingham was a youth with emotional and attitudinal problems that made the school experience difficult for him and for school officials who dealt with him, but did not, according to Keener, impair his testimonial abilities. With regard to his history of substance abuse and mental health treatment, the defendant established only that Bingham had been involved with drugs and had been treated in some type of substance abuse and psychiatric program approximately two years before the murder, and that he had continued to drink alcohol up until the time of the murder. However, “we have never held that a history of alcohol or drug abuse or treatment automatically makes a witness fair game for disclosure of psychiatric records to a criminal defendant”; State v. Joyner, supra, 225 Conn. 479; and the defendant fails to demonstrate how these facts might have affected Bingham’s testimonial capacity in this case. We conclude, therefore, that, on this record, the defendant failed to establish a sufficient foundation from which the trial court must necessarily have concluded that there was a reasonable ground to believe that Bingham’s records would yield evidence useful to his impeachment concerning lack of capacity to remember and relate events, and the trial court’s denial of the defendant’s request for an in camera inspection of Bingham’s special
B
The defendant next claims, alternatively, that the trial court improperly precluded him from making the threshold showing required to warrant an in camera review of Ignacak’s records in violation of his state and federal constitutional rights of confrontation.
The defendant first claims that the trial court’s rulings prohibiting his inquiries into Ignacak’s “interpersonal difficulties” were improper and precluded him from making the requisite showing with regard to her psychiatric and special education records. We disagree. During his offer of proof, the defendant asked both Ignacak and Keener to “explain” the nature of Ignacak’s difficulties getting along with other people. The state objected on relevancy grounds and the trial court sustained these objections. The defendant argues that Ignacak’s difficulty in getting along with other people was relevant because it could have been related to her problem recalling things and because it could have reflected an “irrational inability to get along with others.” The state argues that the trial court’s rulings were proper because the inquiries, as framed by the defendant, were not tied to Ignacak’s testimonial abilities and, thus, were not relevant.
Although, as the defendant observes, “we have urged trial courts to permit the defendant a certain latitude in his attempt to make [the prehminary showing required to obtain an in camera inspection of confidential records]”; State v. D’Ambrosio, supra, 212 Conn. 60; he does not dispute that, in the context of his offer of proof to make that showing, our rules of evidence remain operative. The trial court retained the discretion to curtail inquiry that was not probative of Ignacak’s ability accurately to perceive, recall and relate the events of Rusinko’s murder. Cf. State v. Barnes, 232 Conn. 740, 746-47, 657 A.2d 611 (1995); State v. D'Ambrosio, supra, 60. While we are mindful that the defendant’s task to lay a foundation as to the likely relevance of records to which he is not privy is not an easy one, we are also mindful of the witness’ legitimate interest
Our assessment of the trial court’s decision to restrict the defendant’s access to the witness’ confidential records must, however, take into account the recognized principle that such a restriction “implicates the defendant’s constitutional right to impeach and discredit state witnesses.” State v. D’Ambrosio, supra, 212 Conn. 61; see also State v. Pierson, supra, 201 Conn. 225; State v. Storlazzi, 191 Conn. 453, 457, 464 A.2d 829 (1983). The trial court’s discretionary rulings, therefore, “even if . . . technically in accord with accepted rules of evidence”; State v. Mastropetre, 175 Conn. 512, 521, 400 A.2d 276 (1978); may impermissibly infringe upon the defendant’s opportunity to establish the requisite showing. Thus, in reviewing the defendant’s claim, we must also determine whether the trial court’s rulings denied him a fair opportunity to elicit testimony “about how the records he sought might shed light on a relationship between [Ignacak’s mental problems] and her capacity to testify truthfully.” State v. Joyner, supra, 225 Conn. 479; cf. State v. D'Ambrosio, supra, 61 (trial court impermissibly infringed defendant’s ability to make threshold showing); State v. Ortiz, 198 Conn. 220, 224, 502 A.2d 400 (1985) (trial court’s traditional discretion over scope of cross-examination comes into play only after defendant accorded “some irreducible minimum of cross-examination into matters affecting the reliability and credibility of the state’s witnesses”). We conclude that they did not.
The record reveals that the defendant’s inquiries into the nature of Ignacak’s interpersonal problems were all
The defendant’s next claim is that the trial court improperly denied him permission to refresh Keener’s memory as to certain details of Ignacak’s history of psychiatric treatment, and thereby prevented him from carrying his threshold burden. We disagree.
During the defendant’s examination of Keener, he posed several questions that she was unable to answer because she had not reviewed Ignacak’s special education file before coming to court. After a number of such
The defendant argues that because Keener had custody of Ignacak’s special education records and presumably could have reviewed them prior to giving testimony, and clearly needed to review them to answer some of his questions about Ignacak, the trial court abused its discretion by denying him permission to refresh Keener’s recollection once she had taken the stand, and thereby impermissibly infringed his ability to make the requisite showing. The state argues that the trial court properly denied the defendant permission to refresh Keener’s memory because the defendant failed to ask Keener what specifically in the records might have pertained to Ignacak’s testimonial capacity and because the defendant failed to show affirmatively that Keener was authorized to access the records. We agree with the state that, on this record, the trial court’s ruling did not constitute an abuse of its discretion and did not impermissibly infringe the defendant’s opportunity to make the requisite showing.
“Whether the recollection of a witness needs to be refreshed and whether it can be or has been refreshed by any means is in each case a question for the trial court, and its conclusion is unreviewable unless there has been a clear abuse of discretion.” State v. Grimes,
It is beyond serious debate that the trial court properly prevented the defendant from refreshing Keener’s memory in the ordinary manner; to allow him to do so would have entailed his inspection of the records at issue in order to retrieve the specific documents that would jog Keener’s memory, and would have required disclosure of any such documents to the prosecution. To permit this would have defeated entirely the protective procedure we have adopted to accommodate the witness’ privacy.
The question whether an alternative procedure by which Keener alone could have reviewed the records should have been permitted requires additional discussion. Although ideally a witness called to provide testimony regarding confidential records should be
In determining whether such an alternative procedure is warranted, the trial court should consider, among other relevant factors, the nature of the information sought to be provided by refreshing the witness’ recollection and whether the witness whose memory the defendant seeks to refresh is the only person who feasibly could provide the information sought. On this record, because the defendant did not clearly articulate a request for an alternative procedure, did not establish Keener’s authority to review the records, did not seek to recall Ignacak or to call counselors who might have been able to answer the inquiries Keener was unable to satisfy, and does not claim that he was prevented from doing so, we find no abuse of discretion in the trial court’s denial of permission to refresh Keener’s memory.
Further, we conclude that the trial court’s ruling did not impermissibly restrict the defendant’s opportunity
C
The defendant’s last claim in this regard is that the trial court’s failure to mark for identification and seal for appellate review Bingham’s records from Mount Sinai Hospital was improper and prejudicial to him because those records are not now available for this court’s review. Although the defendant did not object to the procedure adopted by the court, he seeks review of this claim under State v. Golding, supra, 213 Conn. 239-40. We agree with the defendant that the trial court’s failure to retain the records as a sealed exhibit was improper, but conclude that its action was harmless beyond a reasonable doubt and, therefore, that his claim fails under the fourth prong of Golding. See footnote 18.
The trial transcript indicates that the defendant initially sought to have Bingham’s records from Mount Sinai Hospital marked for identification and sealed for appellate review. A representative of the hospital, however, appeared in court and moved to quash the subpoena issued for those records. The trial court reasoned that because it had already determined that it would not review those records in camera, the records could be returned to the hospital. The defendant agreed to permit the hospital to retain the records, requesting only that the court mark for identification the subpoena issued for the records in order to show that the records existed and had been produced in court. The state also
A trial court has the absolute duty to mark for identification and seal for possible appellate review any such records offered, whether or not an in camera inspection is undertaken, even in the absence of an objection to its failure to do so from the parties. See State v. James, supra, 211 Conn. 580; State v. Silva, 201 Conn. 244, 253, 513 A.2d 1202 (1986); State v. Onofrio, 179 Conn. 23, 34, 425 A.2d 560 (1979); Duncan v. McTiernan, 151 Conn. 469, 470, 199 A.2d 332 (1964). The trial court’s decision to mark for identification only the subpoena was, therefore, improper. In this case, however, because we have concluded that the defendant did not make the threshold showing required to obtain an in camera review of the Mount Sinai Hospital records, and that we need not review the records ourselves, the trial court’s failure to preserve properly his records was harmless and could not have affected the outcome of his trial. State v. James, supra, 580.
II
The defendant next claims that there was insufficient evidence to prove: (1) that he had the specific intent required to support his murder conviction; and (2) that he, not Ignacak and Bingham, had actually killed the victim. We disagree.
The standard of review employed in a sufficiency of the evidence claim is well settled. “[W]e 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 [finder of fact] reasonably could have concluded that the cumula
A
We turn first to the defendant’s claim that, in light of the evidence of his intoxication on the night of the murder, a reasonable fact finder could not have concluded, beyond a reasonable doubt, that the defendant had the specific intent required to be convicted of murder. We disagree.
“The specific intent to kill is an essential element of the crime of murder. To act intentionally, the defendant must have had the conscious objective to cause the death of the victim. General Statutes § 53a-3 (11). . . . State v. Raguseo, 225 Conn. 114, 120, 622 A.2d 519 (1993).” (Internal quotation marks omitted.) State v. Mejia, supra, 233 Conn. 223. “Intent is a mental process which ordinarily can be proven only by circumstantial evidence. An intent to cause death may be inferred from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death. . . . These inferences are necessary because the direct evidence of the accused’s state of mind is rarely available.” (Citations omitted; internal quotation marks omitted.) State v. D’Antuono, 186 Conn. 414, 423, 441 A.2d 846 (1982).
A criminal defendant’s intoxication, although not a defense to murder, is relevant to the issue of whether the defendant had the capacity to form the specific intent required to commit the crime. State v. Traficonda, 223 Conn. 273, 279, 612 A.2d 45 (1992); State v. Rivera, 223 Conn. 41, 50, 612 A.2d 749 (1992). “Intoxica
In support of his claim, the defendant relies primarily on his own testimony and that of his expert witness, Peter M. Zeman, a psychiatrist at the Institute of Living. The defendant testified that during the day of the murder, he had consumed fifteen or sixteen beers and four ten milligram doses of Valium between 8 a.m. and 6 p.m., when Bingham and Ignacak arrived. He testified that this had been his daily routine at the time, and presented evidence to show that he was suffering from a severe alcohol and substance abuse condition at the time of the murder and had been for many years before. He claimed that after Bingham and Ignacak arrived, he had consumed two or three “pretty strong” drinks made by Ignacak from vodka and a mixer at the lower camp, and two “big stiff drinks” at the upper camp; he also claimed to have ingested two additional ten milligram doses of Valium after 6 p.m. Finally, he claimed that, as a result of his drinking and Valium ingestion on the day of the murder, he suffered a blackout during the evening, and could not remember anything from the time when Rusinko joined him on the porch after Ignacak’s seizure and Bingham knocked Rusinko to the ground, to when he woke to find Rusinko’s body already in the fire.
The state presented substantial evidence to contradict the defendant’s claim that he had experienced a blackout during Rusinko’s murder and, therefore, that he had been incapable of forming the requisite intent to kill. First, the testimony of Bingham and Ignacak provided both direct and circumstantial evidence of the defendant’s intent to kill Rusinko. According to Bingham and Ignacak, whose testimony the trial court found credible, before the murder the defendant said that he was angry with Rusinko for his role in the loss of the defendant’s driver’s license, and for his role in the defendant’s problems with a “drug deal connection.” He said several times that Rusinko “had to pay,” and talked of killing him. In response to Ignacak’s suggestion that he shoot Rusinko instead of killing him, the defendant said that that would be too good for Rusinko, that “he wanted to fuck [Rusinko] up,” and, specifically, that he “wantfed] to beat David Rusinko to death.”
At some point during the beating, Bingham asked the defendant whether he had done enough damage. The defendant replied “[n]o, that’s not enough. I’m going to fuckin’ kill him” and stated that if he were to stop at that point, Rusinko might go to the police. He then resumed striking Rusinko in the head with a steel pipe “with what appeared to be all his might.” A short time later, the defendant paused to have Bingham break Rusinko’s neck. Dissatisfied with Bingham’s efforts, he attempted to do so himself by jumping on Rusinko’s neck as his head lay propped on the porch railings. Finally, because Rusinko appeared still to be breathing, the defendant asked Bingham for his knife, and when Bingham refused, the defendant used his own knife and then a piece of glass to cut Rusinko’s throat, saying “[d]ie . . . why don’t you just die.” Ignacak indicated, however, that Rusinko was still alive, so the defendant again struck Rusinko’s head with a piece of pipe, at which point it was “all blood.” Finally, the defendant rolled the victim’s body into the fireplace and, using boards pulled off the interior cabin walls, proceeded to incinerate him.
With regard to the defendant’s state of sobriety on the night of the murder, Bingham and Ignacak testified that when they had arrived at the defendant’s home on
The state also presented an expert witness, Donald R. Grayson, a psychiatrist. Grayson testified that he believed it was unlikely that the defendant blacked out during the murder, given his ability to perform certain activities during the day and evening and the precision of his memory as to his activities during the day and just prior to Rusinko’s murder. Grayson also testified that he felt that the defendant’s having related somewhat different accounts of the scope of his memory of the night in question created a doubt about the defendant’s credibility on the subject of his memory loss.
The trial court, in its memorandum of decision on the defendant’s motion for acquittal, expressly rejected as not credible the defendant’s testimony that he could not remember any events between Rusinko’s being knocked to the ground and his being burned in the fire, in light of his ability to give “considerable evidence . . . of his physical activities on July 17,1991, including mowing lawns, working on a small carburetor, riding a motorcycle as well as his detailed claims of alcohol consumption,” and the fact that “[i]n all other areas his recollection appeared intentionally vague or non
B
We next address the defendant’s claim that there was insufficient evidence from which a reasonable fact finder could conclude that the defendant committed Rusinko’s murder.
Our law on this issue is clear. “That the [finder of fact] might have drawn other possible inferences from these facts is not sufficient to undermine its verdict, since proof of guilt must be established beyond a reasonable doubt, not beyond a possible doubt. . . . [I]n viewing the evidence which could yield contrary infer
In this case, the fact finder, in its memorandum of decision on the defendant’s motion for acquittal, expressly and reasonably rejected the defendant’s “blackout” theory and credited the testimony of the state’s witnesses, which clearly supported the underlying conviction for murder. We conclude that, upon the facts so construed and the inferences reasonably drawn therefrom, the trial court reasonably could have concluded that the defendant was guilty of minder beyond a reasonable doubt.
Ill
The defendant’s last challenge is to three evidentiary rulings made by the trial court.
A
The defendant first claims that the trial court improperly admitted testimony from former Granby police officer Douglas Schlichting regarding the defendant’s behavior at a certain known level of intoxication. We disagree.
The following additional facts are relevant to this claim. During the defendant’s case, Zeman testified that a blackout state generally occurs at a blood alcohol level of .25 and above, but may occur at lower levels. He also indicated that Valium may produce the same condition, and that combining alcohol and Valium could produce a synergistic effect. He testified that while a person is experiencing a blackout, that person may appear fairly normal to others, particularly when he or she is a heavy drinker and therefore has greater than average tolerance to the effects of alcohol. He indicated that such a person, when experiencing a blackout, may be able to perform the types of tasks that do not require fine coordination or require motor skills that are so frequently practiced that they are automatic, but that his or her “higher levels” of functioning, such as “higher levels of judgment, thinking [and] planning are impaired.” It was Zeman’s opinion, based on the defendant’s history of heavy drinking and prescription drug
The state presented in rebuttal testimony by Schlichting as to the defendant’s condition when he was arrested for drunk driving three months before Rusinko’s murder. The defendant’s objection to this testimony on relevancy grounds was overruled. Schlichting testified that he had stopped the defendant at approximately 2:30 a.m. on March 3, 1991, because the defendant had been operating his vehicle erratically. Schlichting had noticed that when the defendant exited his vehicle, he held onto the door to support himself and, while walking to the rear of the vehicle, he staggered and braced himself on the vehicle. Schlichting administered a number of field sobriety tests at the scene, including a “horizontal gaze nystagmus test,” a “walk and turn test” and a “one leg stand test.” From the defendant’s performance on each test, Schlichting considered it “quite obvious” that the defendant was intoxicated. Schlichting also testified that he had administered two breathalyzer tests to the defendant, the first at approximately 3:20 a.m., and the second some time later. The first test showed the defendant’s blood alcohol level to be .205, and the second showed it to be .203. Schlichting stated that when these tests were administered, the defendant was still in largely the same condition as when he had stopped him. He also testified on cross-examination that dining booking, the defendant had stated that he was not drug-dependent but that he was taking Valium and Doriden.
The defendant argues that Schlichting’s testimony was irrelevant because it was not known when it was presented whether the defendant’s condition when Schlichting arrested him had been affected by his con
It is well established that “[t]he trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence.” State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987). “The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.” State v. Avis, 209 Conn. 290, 298, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989). “Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . [E]vidence need not exclude all other possibilities [to be relevant]; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree. . . . [T]he fact that evidence is susceptible of different explanations or would support various inferences does not affect its admissibility, although it obviously bears upon its weight. So long as the evidence may reasonably be construed in such a manner that it would be relevant, it is admissible.” (Citations omitted; internal quotation marks omitted.) State v. Sauris, 227 Conn. 389, 406-407, 631 A.2d 238 (1993).
Schlichting’s testimony that the defendant exhibited obvious signs of impairment at a blood alcohol level of approximately .205 could reasonably support an inference that it was less likely that he was a person who would not exhibit signs of substantial motor impairment at the level at which a blackout would normally occur and at lower levels before he reached the level required for blackout. In fact, Grayson made just these comparisons in his testimony. Grayson testified that the information provided by Schlichting as to the defendant’s
B
The defendant next claims that the trial court improperly admitted into evidence several pieces of charred steel pipe and apiece of aluminum pipe. The defendant argues that these items were not adequately identified as those used in the commission of Rusinko’s murder
At trial, the state sought to introduce several pieces of metal pipe through the testimony of state police Sergeant John Buturla. The defendant’s objection to the admission of the pipes was overruled. Buturla testified that the pieces of pipe, one aluminum and several steel, had been found by police, in his presence, on the ground “right off of the porch” of the cabin at the upper camp approximately three weeks after the murder, and that each was in the same condition at trial as it was when it had been found. He acknowledged that there had been other pieces of pipe in the area of the cabin when the police retrieved those sought to be introduced, but stated that the aluminum pipe sought to be admitted had been the only such pipe in that area that was bent and dented.
The defendant argues that because the pipes introduced into evidence had not been conclusively identified, when the state sought to introduce them, either as being the pipes used in Rusinko’s murder or as being similar to those pipes, there was insufficient foundation laid for their admission. We disagree with the defendant that, in order to admit the pipes into evidence, the state was required to first provide such a conclusive identification.
With regard to identity, “[a]ll that is required before a weapon may be introduced into evidence is a sufficient foundation demonstrating circumstances justifying an inference of the likelihood that the weapon was used in the course of the crime charged. . . . The [state] is not compelled to establish that the particular weapon to be introduced was the actual weapon used in the commission of the crime.” (Citations omitted.) Commonwealth v. Fromal, 392 Pa. Super. 100, 125, 572 A.2d 711 (1990); see also Aiken v. State, 101 Md. App. 557,
When the pipes were offered into evidence, Bingham had already testified that one aluminum pipe and a number of steel pipes were used by him and the defendant to beat Rusinko. He had testified that the aluminum pipe was fairly long, that it bent while he was striking Rusinko with it and that, after it bent, he threw it off the porch of the cabin. He had also testified that the steel pipes used to beat Rusinko were each approximately two feet long with one flared end, that one of them was knocked off the porch and the remaining pieces were placed in the fire with Rusinko’s body, and that, when he and the defendant returned to the cabin after the murder, he threw the burned steel pipes off the porch.
C
The defendant’s last claim is that the trial court violated his federal and state constitutional rights of confrontation when it prohibited him from asking Ignacak on cross-examination whether, shortly after the murder, she had told two men that Bingham “had done something awful.” He concedes that his constitutional claim was not made at trial and seeks review under State v. Golding, supra, 213 Conn. 239-40, and the plain error doctrine. We conclude that the defendant presents simply an evidentiary claim, and that the trial court’s ruling did not constitute an abuse of its discretion.
During cross-examination, Ignacak testified that she had known Charles and John Northrop from high school, that she had dated John, and that she had visited an arcade with both of them on one occasion some time after the murder. The defendant asked Ignacak whether she recalled having told them on that occasion that “Brian [Bingham] had done something awful.” The state objected on hearsay grounds and the defendant argued that the statement was offered to contradict Ignacak’s testimony implicating the defendant in Rusinko’s murder. The trial court sustained the state’s
In reviewing this claim, we note, as an initial matter, that the defendant provides virtually no analysis of the confrontation issue he invokes for the first time on appeal. As such, we decline to review it under the Golding doctrine, and treat it, as the defendant does, as simply an evidentiary challenge. See id., 240 (“The defendant. . . bears the responsibility of demonstrating that his claim is indeed a violation of a fundamental constitutional right. Patently nonconstitutional claims that are unpreserved at trial do not warrant special consideration simply because they bear a constitutional label.”). “It is a fundamental rule of appellate review of evidentiary rulings that if error is not of constitutional dimensions, an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him.” State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985).
The only basis on which the defendant offered Ignacak’s alleged prior statement that “Brian [Bingham] had done something awful,” was as an inconsistent statement. “As an evidentiary matter, evidence of a witness’ prior inconsistent statement is admissible to attack the witness’ credibility. ... A statement is admissible as a prior inconsistent statement, however, only when the trial court is persuaded that, taking the testimony of the witness as a whole, the statements are in fact inconsistent. . . . Such a determination as to inconsistency lies within the discretionary authority of the trial court.” (Citations omitted.) State v. Avis, supra, 209 Conn. 302. As the trial court pointed out, Bingham’s participation
The judgment is affirmed.
In this opinion PETERS, C. J., and CALLAHAN and PALMER, Js., concurred.
General Statutes § 53a-54a provides in relevant part: “Murder, (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.”
General Statutes § 53a-8 provides in relevant part: “Criminal liability for acts of another, (a) A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally hable for such conduct and may be prosecuted and punished as if he were the principal offender.”
General Statutes § 53a-155 provides: “Tampering with or fabricating physical evidence: Class D felony, (a) A person is guilty of tampering with or fabricating physical evidence if, believing that an official proceeding is pend
“(b) Tampering with or fabricating physical evidence is a class D felony.”
The defendant was acquitted of one count of conspiracy to commit murder in violation of General Statutes §§ 53a-54a and 53a-48. He was sentenced to fifty-five years imprisonment on his murder conviction, a consecutive five year term on the first count of tampering with physical evidence, and two concurrent five year sentences on the other two counts of tampering with physical evidence.
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,
Four months prior to the murder, in March, 1991, the defendant and Rusinko were stopped by Douglas Schlichting, a Granby police officer, while riding in a car driven by the defendant. According to Schlichting, Rusinko offered him a beer while he was speaking to the defendant, and the defendant
In a separate proceeding prior to the defendant’s trial, Bingham pleaded guilty to one count each of murder and conspiracy to commit murder and to three counts of tampering with physical evidence. He ultimately received a total effective sentence of thirty years imprisonment.
The defendant moved for acquittal on the ground that there was insufficient evidence of his specific intent to kill Rusinko.
The defendant moved for a new trial on the grounds that: (1) the trial court had improperly concluded that he had failed to make a sufficient preliminary showing to justify an in camera review of Ignacak’s and Bingham’s confidential records; and (2) the trial court had improperly admitted into evidence several pieces of metal pipe.
The defendant subpoenaed four sets of records pertaining to Ignacak: her Region Seven special education records; Winsted Memorial Hospital records; Charlotte Hungerford Hospital’s outpatient psychiatric clinic records; and other Charlotte Hungerford Hospital medical records. The defendant also subpoenaed Bingham’s Region Seven special education records and records pertaining to his treatment for alcohol and drug abuse in Mount Sinai Hospital’s psychiatric unit program.
The court marked for identification and sealed for possible appellate review all of the records subpoenaed by the defendant except the records from Mount Sinai Hospital pertaining to Bingham. The trial court returned
The defendant concedes that he was required to make a preliminary showing as to both the witnesses’ psychiatric treatment and special education records. See State v. D’Ambrosio, 212 Conn. 50, 58, 561 A.2d 422 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880,107 L. Ed. 2d 963 (1990) (in camera inspection of psychiatric records requires preliminary showing pursuant to General Statutes § 52-146e); State v. James, 211 Conn. 555, 578, 560 A.2d 426 (1989) (preliminary showing of cause required before inspection of school records). Although in his brief the defendant stresses that school records eqjoy less protection from disclosure than do psychiatric records, he clearly sought information as to Ignacak’s psychiatric and psychological treatment history from her special education records, and he has not claimed that the two types of records should be treated differently for the purpose of determining whether his offers of proof were sufficient to justify breaching their confidentiality. Therefore, we assume, without deciding, that the same standard applies.
In State v. D’Ambrosio, supra, 212 Conn. 59, we stated that “in order to induce the trial court to inspect the records in camera, the defendant had to make a threshold showing that there was a reasonable probability that the records would reveal that ‘at any pertinent time’ [the witness’] alcohol problem affected his testimonial capacity ‘to a sufficient degree to warrant further inquiry.’ State v. Pierson, supra, [201 Conn. 225-26]; State v. Esposito, supra, [196 Conn. 180].” (Emphasis added.) The defendant claims that by using the term “reasonable probability” the court increased the
A careful reading of D Ambrosio makes it clear, however, that the “reasonable probability” standard was simply a reformulation of our general standard governing a criminal defendant’s access to confidential records and was not intended to increase the defendant’s threshold burden. We are, therefore, unpersuaded by the defendant’s constitutional argument. We do, however, acknowledge that the “reasonable probability” language, appearing for the first time in this context in DAmbrosio, might be susceptible to misinterpretation, and for this reason, we will not continue its use.
During the defendant’s offer of proof, Ignacak referred to Wurkus as the school psychologist and Keener referred to Wurkus as the school social worker. The record does not clarify in which role Wurkus actually served, but, in any case, this confusion does not affect our decision.
Ignacak admitted on direct examination that initially she had lied to the police about the murder in several respects.
The defendant conceded at oral argument that he has never subpoenaed records pertaining to Ignacak’s treatment in New Britain General Hospital’s psychiatric program. He claims that he did not learn of Ignacak’s psychiatric treatment at that hospital until Keener revealed it during his offer of proof and, therefore, that he lacked an opportunity to bring those records before the trial court. He seeks to have our review of the trial court’s ruling on the sufficiency of his offer of proof include a determination as to whether he was entitled to an in camera inspection of those hospital records.
The relevant portions of the transcript indicate, however, that the trial court’s ruling did not include the New Britain General Hospital records. The defendant argued at the close of his offer of proof only that there was “enough . . . before the court to permit the court to hold an in camera review of the records which have been submitted.’’ (Emphasis added.) He did not specifically seek a ruling as to the New Britain General Hospital records, which had not been submitted, and the trial court’s statement of its ruling gives no indication that it was intended to include a determination as to those missing records. Therefore, our review of that ruling does not include a determination on the showing made as to the New Britain General Hospital records and his claim relating to records is not properly before us.
In his brief to this court, the defendant argues that it was possible that Ignacak’s records could also contain information relevant to bias. This claim, however, was not raised at trial and has been inadequately briefed on appeal. We therefore decline to review it. See Practice Book § 4065; Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., 227 Conn. 175, 181 n.4, 629 A.2d 1116 (1993).
Although the defendant urges us to hold that infringement of his opportunity to make the requisite showing would violate not only his right of confrontation but also his rights of compulsory process and due process, he fails to suggest how our reaching those guarantees would make any difference to our analysis of his claims. We therefore decline to do so.
It is not necessary for us to address this claimed error because, as we have stated; see footnote 14; the defendant failed to seek a ruling from the trial court as to whether he was entitled to an in camera inspection of Ignacak’s records from New Britain General Hospital. His claim relating to those records, therefore, is not properly before us.
Under State v. Golding, supra, 213 Conn. 239-40, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” This court “is free ... to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” Id., 240.
To the extent that the trial court reasoned that, because the records were privileged, Keener herself could not review them once on the stand to provide testimony, we disagree. If Keener was authorized to examine the records, and thus could have reviewed them prior to taking the witness stand, her reviewing the records later rather than earlier would not have infringed upon Ignacak’s privilege. Only the defendant’s attempt, through his examination of Keener, to elicit from her information contained in the records implicated Ignacak’s privilege, and the trial court possessed the discretion to control the scope of the defendant’s inquiry on a question-by-question basis.
It does not appear that the hospital’s motion to quash was acted upon by the trial court.
The defendant asserts this claim in a slightly different manner. He claims that the fact finder could not reasonably have concluded that Bingham and Ignacak had not murdered the victim and thereafter had attempted to implicate the defendant and, therefore, could not have found him guilty beyond areasonable doubt. Despite the phrasing, the issue remains the same, namely, whether there was sufficient evidence to convict the defendant of Rusinko’s murder.
The defendant also claims, in a footnote in his brief, that the trial court’s exclusion of the following question to Ignacak on cross-examination violated his constitutional right of confrontation: “Can you describe for me what land of behavior Mr. Bingham exhibited that makes you say that he was obsessive?” He concedes that his constitutional claim was not properly preserved and seeks to prevail under State v. Golding, supra, 213 Conn. 239-40, and the plain error doctrine. This claim, however, is devoid of analysis and of citation to any relevant authority. Therefore, we decline to review it. See footnote 15.
Dissenting Opinion
dissenting. A criminal defendant has the right to an in camera inspection of a witness’ confidential records, for the purpose of gathering information to impeach the witness, if there is “any reasonable basis” for believing that the records have information “that might affect his testimony.” (Emphasis added.) State v. Pierson, 201 Conn. 211, 228, 514 A.2d 724 (1986), on appeal after remand, 208 Conn. 683, 546 A.2d 268, cert. denied, 489 U.S. 1016, 109 S. Ct. 1131, 103 L. Ed. 2d 193 (1989). I am pleased that the court makes this standard clear and overrules State v. D’Ambrosio, 212 Conn. 50, 59, 561 A.2d 422, cert. denied, 493 U.S. 1063, 110 S. Ct. 880,107 L. Ed. 2d 963 (1990), which employed
In Pierson, we acknowledged that “absent any knowledge of the contents of [a witness’] psychiatric records, it is impossible to determine whether they included relevant impeaching evidence that was not cumulative or was contrary to her testimony and that [t]o rely on the testimony actually elicited on cross-examination in assessing whether the defendant’s [confrontation] rights were violated would involve pure speculation as to the contents of the witness’ records.” (Internal quotation marks omitted.) State v. Pierson, supra, 201 Conn. 226. Because of our concern for the defendant’s right to confront witnesses, “we have not insisted upon a determination that the confidential communications of the victim were inconsistent with his testimony at trial before an in camera review may be conducted by the court ... of the record of those prior statements.” Id., 227. Rather, if the defendant demonstrates, outside the presence of the jury, that “there is a reasonable ground to believe that the failure to produce the records would likely impair his right to impeach the witness,” the trial court should conduct an in camera inspection. State v. Howard, 221 Conn. 447, 457, 604 A.2d 1294 (1992), citing State v. D’Ambrosio, supra, 212 Conn. 58. Writing for a unanimous court, Justice Hull, in State v. Hufford, 205 Conn. 386, 404-405, 533 A.2d 866 (1987), made it clear that the standard must be “any reasonable basis” because a more onerous threshold would violate the confrontation clauses of our federal and state constitutions.
I believe that the defendant in this case made this threshold showing thereby requiring the trial court to review Cara Ignacak’s and Brian Bingham’s confidential records in camera. The object of the defendant’s inquiry is not only to challenge the witnesses’ testimonial capacity, but also to gather any information that would impeach the witnesses’ credibility. Id., 400. As participants in the crime, both Ignacak and Bingham were essential witnesses for the prosecution. This is especially so since there were no other witnesses and the defendant testified that for most of the evening he blacked out and is not able to recall what occurred. Therefore, conviction of the defendant hinged on whether the jury credited Ignacak’s and Bingham’s testimony. Consequently, it was vital for the defendant to
On direct examination, both Ignacak and Bingham conceded that, during the police investigation, they had concealed information and had lied. Additionally, testimony was presented that both had social and psychiatric problems that required treatment. At a minimum, Ignacak’s and Bingham’s mental soundness must be questioned as they either assisted in or watched the fatal beating and incineration of another human being without any expression of horror or disgust. More specifically, there was testimony that Ignacak received psychiatric therapy on an inpatient and outpatient basis because of her difficulty in recalling events, as well as her interpersonal difficulties. Similarly, Bingham was hospitalized for emotional and substance abuse problems. With this evidence, the defendant met his threshold burden of demonstrating that there was a reasonable basis for believing that impeaching information was contained in Ignacak’s and Bingham’s confidential records.
Indeed, the facts of Hufford underscore that the defendant in this case met that threshold showing. In Hufford, we held that on voir dire, the defendant made the requisite showing merely by presenting the hospital records that contained nursing notes in which the witness was described as being “diagnosed as having a social problem and histrionic personality disorder.” Id., 404-405. On the basis of those nursing notes alone, we held that “the defendant [had] made the requisite showing that there were reasonable grounds to believe that there were psychiatric records or information pertaining to the complainant’s mental condition bearing on her testimonial capacity and reliability as a witness.” Id., 404.
The majority seems to lose sight that this threshold showing is preliminary. It is not determinative of
Under the majority’s analysis, the defendant is twice placed in a “catch-22” situation. First, the precise reason the defendant wanted to have the witnesses’ records reviewed in camera was to determine whether they contained any material that would be admissible to impeach the credibility of Ignacak and Bingham. If the defendant had knowledge of the contents of the records, then an in camera review would not be necessary. Nevertheless, the majority somehow expects the defendant, who is ignorant of the contents of the records, to produce sufficient evidence to demonstrate that there is “a reasonable probability” that records contain admissible impeachable information.
Second, the majority, which agrees in theory that there need only be a mere “reasonable basis showing,” in practice extends that standard beyond all contemplation and refuses to review the trial court’s unreasonable evidentiary restrictions that prevented the defendant from making a fuller threshold showing during voir dire.
Accordingly, I would remand this case to the trial court with direction to conduct an in camera inspection of the records of both Ignacak and Bingham.
If such an in camera inspection produces information that could have been the basis for properly impeaching either or both witnesses, the defendant’s conviction must be set aside and a new trial ordered.
Accordingly, I respectfully dissent.
In State v. Hufford, supra, 205 Conn. 402, this court stated: “We rest this holding not only on the requirements of the federal constitution, but also on independent and adequate state constitutional grounds. U.S. Const., amends. VI, XIV; Conn. Const., art. I, § 8; see Michigan v. Long, 463 U.S. 1032, 1041, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983); State v. Jarzbek, [204 Conn. 683, 707-708, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988)].”
The trial court made several evidentiary rulings that restricted the defendant’s ability to conduct a thorough voir dire. For example: (1) the trial court barred the defendant from asking Ignacak if she had told friends that Bingham “had done something awful”; (2) the defendant was precluded from asking Ignacak and S. Patricia Keener, the director of special education at Ignacak’s and Bingham’s high school, how Ignacak’s difficulty getting along with people manifested itself; and (3) the defendant was precluded from asking Keener if there was a diagnosis that led her to refer Ignacak for psychiatric treatment.
I am aware of the procedure established in State v. Esposito, 192 Conn. 166, 179-80, 471 A.2d 949 (1984), which requires, after the defendant has shown “that there is reasonable ground to believe that the failure to produce the [confidential] information is likely to impair the defendant’s right of confrontation .... Upon such a showing the court may then afford the state an opportunity to secure the consent of the witness for the court to conduct an in camera inspection of the claimed information .... If the defendant does make such [a] showing and such consent is not forthcoming then the court may be obliged to strike the testimony of the witness.” The Esposito court laudably attempts to accommodate both the privacy rights of the witness and the confrontational rights of the accused. Sometimes, however, in the interest of justice, this accommodation cannot be made. With respect to confidential records, those privileges must give way to the state’s overriding interest in obtaining just convictions and the accused’s constitutional right to confrontation. Accordingly, I would abandon the requirement that the state be required to obtain the witness’ consent for the in camera review of the witness’ records. The trial court’s order mandating the attorneys not to disclose any of the confidential information is a sufficient safeguard to protect the privacy right of the witness, while taking into account the defendant’s right to confrontation.