State v. Burak

Decision Date09 December 1986
Docket NumberNo. 12351,12351
Citation201 Conn. 517,518 A.2d 639
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Kenneth BURAK.

Jon L. Schoenhorn, Hartford, for appellant (defendant).

Harry Weller, Deputy Asst. State's Atty., with whom were Herbert Carlson and John M. Massameno, Asst. State's Attys., and, on the brief, John M. Bailey, State's Atty., and Mary Glassman, Law Student Intern, for appellee (State).

Before PETERS, C.J., and ARTHUR H. HEALEY, DANNEHY, CALLAHAN and HAMMER, JJ.

CALLAHAN, Associate Justice.

A jury convicted the defendant of the crimes of murder and kidnapping in the first degree in violation of General Statutes §§ 53a-54a and 53a-92(a)(2)(A) respectively. He received an effective sentence of fifty years to life. On appeal, the defendant asserts that the trial court erred in (1) restricting his cross-examination of the state's witness Gary Zapor concerning Zapor's psychiatric records and any possible plea bargains Zapor may have entered into with the state, thereby violating the defendant's state and federal constitutional rights of confrontation, and (2) admitting prejudicial evidence concerning the defendant's flight prior to his arrest and his escape subsequent to his arrest. We find no error.

The jury reasonably could have found the following facts. In August, 1979, the defendant attempted to enlist the victim, Arthur Labier, to "set up" one Russell Garuti. The defendant apparently felt that Garuti had turned him in for a crime which led to the defendant's serving five years in the Connecticut Correctional Institution, Somers. Labier failed, however, to "set up" Garuti for the defendant and consequently incurred the defendant's enmity.

In the early evening of August 30, 1979, the defendant picked up Gary Zapor at work. Zapor lived with the defendant in New Britain. Thereafter, they picked up Zapor's girlfriend at work, and went to the defendant's residence. Zapor and his girlfriend left the residence at approximately 9 p.m. to have dinner. After dinner Zapor drove his girlfriend to her home and went to a bar where he encountered Labier and another youth outside. Labier agreed to accompany Zapor to the defendant's residence to "straighten things out" with the defendant. Upon arriving, the victim was struck in the face by both the defendant and Zapor. The victim then agreed to take the defendant to Garuti, but instead broke free and fled. The defendant and Zapor chased Labier and subdued him. They then brought him back to the house, tied him to a chair, and proceeded to beat him with a sharp object.

According to Zapor, over the next several hours the defendant subjected the victim to beatings with a hammer, injections referred to as "hot shots" consisting of brake fluid, cleaning solution and dirty water, and jabs from sharp instruments. Zapor, although initially present and a participant in most of the beatings of the victim, left the residence for a portion of the time. When he returned, he observed the defendant still beating the victim and refusing to let him go. Finally, the defendant delivered a fatal stab wound to the victim's chest. Other facts will be discussed as they become relevant.

I

The defendant's first claim of error is that his state and federal constitutional rights to confront 1 and cross- adverse witnesses were violated when the trial court (1) denied the defendant access to Zapor's psychiatric records, and (2) refused to permit inquiry concerning Zapor's possible plea bargain with the state. We disagree.

We will first address the claim concerning the trial court's denial of access to Zapor's psychiatric records. Zapor was a key witness in the state's case against the defendant. The defendant subpoenaed a copy of Zapor's psychiatric records and first raised the issue of their admissibility during a voir dire on Zapor's competency to testify. In the absence of the jury, Zapor testified that in 1974 or 1975 he had been found incompetent to stand trial on charges of sexual assault and kidnapping and as a result had been institutionalized pursuant to a court order. Approximately one and one-half months after having been institutionalized, he was found competent to stand trial. Thereafter, the charges against him were nolled. Zapor also testified that he had received private psychiatric care sometime during 1973 or 1974. The court reserved decision on the admissibility of the psychiatric records and found Zapor competent to testify. It indicated, however, that the defendant could test the degree of Zapor's competency during cross-examination. The defendant then sought access to Zapor's psychiatric records on two separate occasions during the trial for use on cross-examination.

The defendant argued at trial and now argues on appeal that, because Zapor's hospitalization came as a result of a court order, the records were exempt from the psychiatrist-patient privilege pursuant to General Statutes § 52-146f(4) (formerly General Statutes § 52-146f[d]. 2 He also claims that, even if we assume arguendo that the privilege is applicable, it is subordinate to the defendant's confrontation rights.

General Statutes § 52-146f(4) provides in pertinent part: "Communications made to or records made by a psychiatrist in the course of a psychiatric examination ordered by a court ... may be disclosed at judicial or administrative proceedings in which the patient is a party, or in which the question of his incompetence because of mental illness is an issue, or in appropriate pretrial proceedings, provided the court finds that the patient has been informed before making the communications that any communications will not be confidential and provided the communications shall be admissible only on issues involving the patient's mental condition." (Emphasis added.)

We note at the outset that the record fails to indicate whether the trial court ever made any finding that Zapor had been informed before communicating with the psychiatrist that such communications would not be confidential. Such a finding is a prerequisite to the operation of § 51-146f(4). See Bieluch v. Bieluch, 190 Conn. 813, 817 n. 2, 462 A.2d 1060 (1983). Even if such a finding is made by the trial court, the moving party must meet additional requirements before he can gain access to the contents of a court-ordered psychiatric examination, i.e., the patient must be a "party" in the action or "the question of his incompetence because of mental illness is an issue." General Statutes § 52-146f(4). In this case, as the trial court noted, Zapor was a state's witness and not a "party" to the action. Cf. State v. White, 169 Conn. 223, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975). Further, the defendant did not claim at trial nor does he argue on appeal that Zapor's incompetence because of mental illness was an "issue" in this case. See State v. Toste, 178 Conn. 626, 629, 424 A.2d 293 (1979). The defendant sought access to the psychiatric records to impeach the credibility of Zapor as a witness, not to determine his competence. The trial court had already ruled that Zapor was competent to testify and the defendant does not challenge this ruling on appeal. We conclude, therefore, that the trial court was correct in finding General Statutes § 52-146f(4) inapplicable to this case and that Zapor's psychiatric records were privileged.

We must then address whether the trial court's ruling with regard to the psychiatric records precluded the defendant from conducting an effective cross-examination of the witness, in violation of his constitutional right to confront the witnesses against him. It is established that a defendant has the right to cross-examine a witness for the purpose of discrediting his testimony; Davis v. Alaska, 415 U.S. 308 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974); "[t]his right is secured for defendants in state criminal proceedings." State v. Esposito, 192 Conn. 166, 178, 471 A.2d 949 (1984), citing Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); see also Conn. Const., art. I, § 8. "A witness may be impeached by questions relating to credibility, including questions about mental conditions which are relevant to his ability to perceive, recollect and articulate or to his capacity for truthfulness." State v. Bruno, 1 Conn.App. 384, 391, 473 A.2d 311 (1984), aff'd, 197 Conn. 326, 497 A.2d 758 (1985), cert. denied, --- U.S. ----, 106 S.Ct. 1635, 90 L.Ed.2d 181 (1986); State v. Piskorski, 177 Conn. 677, 736-37, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S.Ct. 283, 62 L.Ed.2d 194 (1979).

As set forth in State v. Esposito, supra, 192 Conn. at 179-80, 471 A.2d 949, "[i]f, however, the claimed impeaching information is privileged there must be 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 [his] testimony stricken in the event of refusal."

We have reviewed the record and find that the...

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