State v. D'Ambrosia

• Decision Date: 04 July 1989
• Docket Number: No. 13507,13507
• Citation: 212 Conn. 50,561 A.2d 422
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Michael D'AMBROSIA.

Page 422

561 A.2d 422

212 Conn. 50

STATE of Connecticut v. Michael D'AMBROSIA.

No. 13507.

Supreme Court of Connecticut.

Argued May 9, 1989.

Decided July 4, 1989.

Susan M. Hankins, Asst. Public Defender, for appellant (defendant).

Carolyn K. Longstreth, Deputy Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and Patrick Clifford, Asst. State's Atty., for appellee (State).

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS and COVELLO, JJ.

PETERS, Chief Justice.

This appeal requires an examination of the scope of a defendant's obligation to make a preliminary showing of the materiality of a witness' psychiatric records for the purpose of cross-examination. A jury convicted the defendant of burglary in the third degree, conspiracy to commit burglary in the third degree, attempted assault in the first degree and larceny in the sixth degree. General Statutes §§ 53a-103(a), 53a-48(a), 53a-49(a), 53a-59(a)(1), 53a-125b. The defendant appealed to the Appellate Court from the trial court's judgment, raising four claims of error. The Appellate Court found no error in the trial court's judgment; State v. D'Ambrosia, 14 Conn.App. 309, 541 A.2d 880 (1988); and we granted certification limited to the following issue: "Did the Appellate Court err in upholding the trial court's denial of the defendant's request for an examination of the psychiatric records of a key state witness, on the basis that there had been no preliminary showing that denial was likely to impair his right to confrontation?" State v. D'Ambrosia, 209 Conn. 802, 548 A.2d 439 (1988). We now reverse.

The jury could reasonably have found the following facts. On October 29, 1985, the complainant, a seventy-nine year old Guilford woman, discovered that the rear door to her house had been smashed. One of the complainant's neighbors told police that she had seen a heavy set white male in dark clothing, later identified as Albert Knous, run down the driveway and enter a dark colored car with a white top. Approximately forty-five minutes later, a police officer spotted the defendant and Knous in a car matching the neighbor's description. State v. D'Ambrosia, supra, 14 Conn.App. at 310-11, 541 A.2d 880. After further investigation linking both the defendant and Knous to the incident, the police charged the defendant with burglary, conspiracy to commit burglary in the third degree, attempted assault in the first degree, carrying a weapon in a motor vehicle and larceny in the sixth degree.

At the defendant's trial, Knous testified for the state that he was picking apples on the day of the incident when the defendant approached him to tell him he had broken into the complainant's home, that a companion had cut the brake lines to the car stored in the garage ¹ and that the defendant had stolen a metal tool box. Knous also stated that the defendant reported having seen a television set in the house, which he wanted Knous to help him steal so that they could sell it and divide the proceeds. Knous testified that the pair then went to the house and he entered through the rear door, which he claimed had been smashed previously. He then searched the house for valuables, looked in the medicine cabinet for drugs and left without taking anything when he heard a car in the driveway. Id., at 312, 541 A.2d 880.

Prior to cross-examination and outside the jury's presence, defense counsel questioned Knous about his treatment for alcoholism at Connecticut Valley Hospital. Knous stated that, as a condition of his probation stemming from previous charges, he had been admitted to a twenty-eight day alcohol program. He admitted he had been drinking heavily for two years prior to entering the alcohol program and had occasionally used other drugs. He also admitted he had been drinking on the day of the incident. Defense counsel inquired whether he had been drinking excessively that day, to which Knous answered, "I had been drinking. Excessive, I don't know." Id., at 316, 541 A.2d 880.

Defense counsel then asked Knous a series of questions regarding his diagnosis, the psychiatric reasons for his hospitalization and the reasons why the program directors had recommended that he enter a halfway house. ² The trial court sustained all of the state's objections to these questions on the ground of the witness' psychiatric privilege. The defendant then requested access to Knous' psychiatric records or, alternatively, that the court inspect the records in camera to determine if they contained any impeaching material. The court denied the defendant access to the records and declined to examine them itself, concluding that counsel had failed to make a preliminary showing that the failure to inspect the records would deny the defendant his right to confrontation.

After the trial court rendered judgment on his convictions, the defendant appealed to the Appellate Court arguing that the trial court had violated his sixth amendment right to confrontation by precluding him from cross-examining the state's key witness on facts highly probative of the witness' credibility, capacity to perceive and ability to recall facts. ³ The Appellate Court found no error in the trial court's rulings, holding that the court had provided the defendant wide latitude in cross-examining Knous and that the defendant had failed to make the necessary preliminary showing that the failure to produce the records would likely impair his constitutional right to confrontation. Id., at 317, 541 A.2d 880. This appeal ensued.

The people of this state enjoy a broad privilege in the confidentiality of their psychiatric communications and records, including those pertaining to their diagnosis, prognosis or treatment for alcohol abuse or alcoholism. See General Statutes §§ 17-155bb(b), 52-146d, 52-146e. ⁴ 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. Delaware v. Fensterer, 474 U.S. 15, 19, 106 S.Ct. 292, 295, 88 L.Ed.2d 15 (1985) (per curiam); Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974); State v. Storlazzi, 191 Conn. 453, 457, 464 A.2d 829 (1983). 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 that witness' credibility. ⁵ State v. Hufford, 205 Conn. 386, 401-402, 533 A.2d 866 (1987); State v. Pierson, 201 Conn. 211, 227, 514 A.2d 724 (1986); see also Davis v. Alaska, supra, 320 (defendant's right to cross-examine for bias is paramount to state's policy of protecting juvenile offender's identity). 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." Delaware v. Fensterer, supra, 474 U.S. at 20, 106 S.Ct. at 295; Ohio v. Roberts, 448 U.S. 56, 73 n. 12, 100 S.Ct. 2531, 2543 n. 12, 65 L.Ed.2d 597 (1980). We have therefore directed trial courts to engage in a specific procedure designed to accommodate this inherent tension.

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, supra, 201 Conn. at 225, 514 A.2d 724; State v. Esposito, 192 Conn. 166, 179, 471 A.2d 949 (1984). 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. State v. Burak, 201 Conn. 517, 524, 518 A.2d 639 (1986); State v. Bruno, 197 Conn. 326, 331, 497 A.2d 758 (1985), cert. denied, 475 U.S. 1119, 106 S.Ct. 1635, 90 L.Ed.2d 181 (1986); State v. Esposito, supra, 192 Conn. at 179-80, 471 A.2d 949.

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. State v. Esposito, supra, 176, 471 A.2d 949; State v. Storlazzi, supra, 191 Conn. at 459 n. 4, 464 A.2d 829. 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 records 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. State v. Hufford, supra, 205 Conn. at 404, 533 A.2d 866; State v. Pierson, supra, 201 Conn. at 228, 514 A.2d 724. 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. State v. Herring, 210 Conn. 78, 109, 554 A.2d 686 (1989); State v. Kelly, 208 Conn. 365, 380, 545 A.2d 1048 (1988).

In this case, 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" Knous' alcohol problem affected his testimonial capacity "to a sufficient degree to warrant further inquiry." State v. Pierson, supra, 201 Conn. at 225-26, 514 A.2d...