State v. Bruno

• Decision Date: 03 September 1985
• Citation: 197 Conn. 326,497 A.2d 758
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Dominic F. BRUNO.

Page 758

497 A.2d 758

197 Conn. 326

STATE of Connecticut v. Dominic F. BRUNO.

Supreme Court of Connecticut.

Argued June 12, 1985.

Decided Sept. 3, 1985.

Ronald E. Cassidento, West Hartford, for appellant (defendant).

John M. Massameno, Asst. State's Atty., with whom were Linda N. Knight, Deputy Asst. State's Atty., and, on brief, Austin J. McGuigan, Chief State's Atty., and John Dropick, Asst. State's Atty., for appellee (State).

Before PETERS, C.J., and HEALEY, SHEA, SANTANIELLO and CALLAHAN, JJ.

CALLAHAN, Associate Justice.

This is an appeal, after certification, from an Appellate Court decision affirming the conviction of the defendant, Dominic Bruno, after a trial to the court, Borden, J., of six counts of eavesdropping in violation of General Statutes § 53a-189, one count of conspiracy to commit eavesdropping in violation of General Statutes §§ 53a-48 and 53a-189, and two counts of criminal mischief in the first degree in violation of General Statutes § 53a-115. The defendant received an effective sentence of one year, execution suspended after six months, and two years probation, and was fined five hundred dollars. In his appeal to the Appellate Court, the defendant raised four claims of error, none of which the Appellate Court found persuasive. The present appeal concerns only one of these claims, namely, that the trial court's refusal to conduct an in camera inspection of the psychiatric records of a state's witness, or to make the records available to defense counsel, violated the defendant's right to conduct an effective cross-examination of the witness, as guaranteed by the sixth amendment to the United States constitution. We granted certification to review the decision of the Appellate Court finding no error. We affirm the decision of the Appellate Court.

The decision of the Appellate Court describes the underlying facts. State v. Bruno, 1 Conn.App. 384, 473 A.2d 311 (1984). The defendant was accused of several instances of wiretapping and of engaging in acts of vandalism. The police investigation of the defendant was initiated by his former girlfriend, who reported in January, 1979, to the police "her suspicions that the defendant had stolen some personalty of hers, and that she believed that the defendant was wiretapping." Id., 386, 473 A.2d 311. In anticipation of the complainant's testimony at trial, "the defense subpoenaed her medical records for the years 1978 and 1979 from the Charlotte Hungerford Hospital, which included the records of her treatment in the psychiatric inpatient unit of the hospital." Id., 388. The hospital moved to quash the subpoena, in which motion the complainant joined, and the defendant filed an application for permission to review the hospital records. The court granted the motion to quash the subpoena and denied the defendant's motion to review the records.

The trial court based its rulings on General Statutes § 52-146e, which at the time of trial provided, in relevant part, that " 'no person shall disclose or transmit any ... [oral or written] communications or records [relating to diagnosis or treatment of a mental condition made between the patient and a psychiatrist] where the patient is identifiable, or the substance or any part or parts of any resume thereof, to any person, any corporation or any governmental agency, municipal, state or federal, without the consent of the patient or his authorized representative.' " Id., 389, 473 A.2d 311. At the hearing on the motion to quash the subpoena, the trial court found that the records sought by the defendant fell within the statutory privilege, and that the blanket prohibition of the statute precluded both the defendant's review of the records and an in camera inspection by the court. The defendant took an exception to the trial court's rulings on the motion to quash the subpoena and the motion for permission to examine the records. Id., 390, 473 A.2d 311.

In his appeal to the Appellate Court, the defendant claimed that the trial court's rulings with regard to the witness' psychiatric records precluded him from conducting an effective cross-examination of the witness, in violation of his constitutional right to confront the witnesses against him. Id., 390, 473 A.2d 311. After his appeal had been argued in the Appellate Court, but before that court rendered its decision, this court decided the case of State v. Esposito, 192 Conn. 166, 471 A.2d 949 (1984). In Esposito, we considered the question of when, if ever, a trial court or a criminal defendant should be permitted to inspect the psychiatric records of a state's witness to discover whether they contain relevant impeaching evidence. Id., 176-80, 471 A.2d 949. There we decided that "[t]he broad sweep of [General Statutes § 52-146e] covers not only disclosure [of a witness' psychiatric records] to a defendant or his counsel, but also disclosure to a court even for the limited purpose of an in camera examination." Id., 178, 471 A.2d 949. We then went on to articulate a procedure which would protect the witness' statutory right to confidentiality while simultaneously safeguarding the defendant's constitutional right effectively to cross-examine the witness. First, the defendant is required to make "a showing that there is reasonable ground to believe that the failure to produce the information is likely to impair the defendant's right of confrontation such that the witness' direct testimony should be stricken. 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 and, if necessary, to turn over to the defendant any relevant material for the purposes of cross-examination. If the defendant does make such showing and such consent is not forthcoming then the court may be obliged to strike the testimony of the witness. If the consent is limited to an in camera inspection and such inspection, in the opinion of the trial judge, does not disclose relevant material then the resealed record is to be made available for inspection on appellate review. If the in camera inspection does reveal relevant material then the witness should be given an opportunity to decide whether to consent to release of such material to the defendant or to face having her testimony stricken in the event of refusal." Id., 179-80, 471 A.2d 949.

The Appellate Court found that the preliminary showing, required under Esposito, "that the failure to produce the records was likely to impair the defendant's right to confront the witness against him" had been made. State v. Bruno, supra, 1 Conn.App. 395, 473 A.2d 311. Citing State v. Esposito, supra, 192 Conn. 179-80, 471 A.2d 949, the court acknowledged that "[s]ince the witness did not consent to a release of the records to anyone, including the [trial] court for an in camera review, the [trial] court 'may' have become obliged to strike the testimony of the witness." (Footnotes omitted.) State v. Bruno, supra. Upon review of the record and transcripts in the case, however, the Appellate Court found a clear showing "that the evidence offered by the state, even without the testimony of the witness, was sufficient to prove the defendant's guilt beyond a reasonable doubt." Id. The court therefore concluded that there was no error because "[e]ven if we assume, that the trial court would have, under the holding of State v. Esposito, supra, stricken the testimony of the witness, the defendant still would have been proven guilty beyond a reasonable doubt." Id.

In his request to this court for certification, the defendant raised two related issues. ¹ The first concerns whether the trial court's refusal to grant the defendant access to the witness' psychiatric records, or to inspect the records in camera, deprived the defendant of his sixth amendment right effectively to cross-examine the witness. The second issue is whether the Appellate Court erroneously applied a "harmless error test" in reviewing the rulings of the trial court with regard to the witness' psychiatric records.

In an appeal from the Appellate Court, "the focus of our review is not the actions of the trial court, but the actions of the Appellate Court. We do not hear the appeal de novo. The only questions that we need consider are those squarely raised by the petition for certification, and we will ordinarily consider these issues in the form in which they have been framed in the Appellate Court." State v. Torrence, 196 Conn. 430, 433, 493 A.2d 865 (1985). ²

The first question raised by the defendant, as to whether his sixth amendment rights were violated by the denial of access to the witness' psychiatric records and the absence of an in camera inspection, is unanswerable. Because "the witness did not consent to a release of the records to anyone, including the court for an in camera review"; State v. Bruno, supra, 1 Conn.App. 395, 473 A.2d 311, the records are not "available for inspection on appellate review"; State v. Esposito, supra, 192 Conn. 180, 471 A.2d 949; by either the Appellate Court or this court. Although the witness in fact testified extensively upon cross-examination by the defendant regarding her psychiatric treatment and hospitalizations, her alcoholism and drug use, her suicide attempts, and her feelings of fear and anger toward the defendant; State v. Bruno, supra, 1 Conn.App. 392, 473 A.2d 311, absent any knowledge of the contents of her psychiatric records, it is impossible to determine whether they included relevant impeaching evidence that was not cumulative or was contrary to her testimony. To rely on the testimony actually elicited on cross-examination in assessing whether the defendant's sixth amendment rights were violated would involve pure speculation as to the contents of the witness' records. The Appellate Court properly did not engage in such a futile exercise, nor do we.

As the Appellate Court correctly noted, "[...