State v. Jenkins

• Citation: 856 A.2d 383,271 Conn. 165
• Decision Date: 21 September 2004
• Docket Number: No. 16871.,16871.
• Parties: STATE of Connecticut v. Robert JENKINS.
• Court: Supreme Court of Connecticut

856 A.2d 383

271 Conn. 165

STATE of Connecticut v. Robert JENKINS.

No. 16871.

Supreme Court of Connecticut.

Argued November 24, 2003.

Decided September 21, 2004.

Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Rosita M. Creamer, former senior assistant state's attorney, for the appellant (state).

Adele V. Patterson, assistant public defender, for the appellee (defendant).

SULLIVAN, C.J., and BORDEN, NORCOTT, KATZ and PALMER, Js.

PALMER, J.

A jury found the defendant, Robert Jenkins, guilty of manslaughter in the first degree¹ in violation of General Statutes § 53a-55 (a)(1)² and risk of injury to a child in violation of General Statutes (Rev. to 1995) § 53-21, as amended by Public Acts 1995, No. 95-142, § 1.³ The trial court rendered judgment in accordance with the jury verdict,⁴ and the defendant appealed to the Appellate Court. On appeal to the Appellate Court, the defendant challenged only the validity of his conviction of intentional manslaughter,⁵ claiming that the trial court improperly had: (1) allowed the state to impeach his trial testimony with certain department of correction records that were protected by the psychiatrist-patient privilege; and (2) denied him a fair trial by instructing the jury to disregard any evidence of the defendant's alleged intoxication if that evidence did not negate the element of intent. The Appellate Court agreed with the defendant's claim regarding the psychiatrist-patient privilege and granted the defendant a new trial on the intentional manslaughter charge. State v. Jenkins, 73 Conn.App. 150, 171, 807 A.2d 485 (2002). In light of that conclusion, the Appellate Court did not reach the defendant's claim of instructional impropriety. We granted the state's petition for certification to appeal limited to the following issues: First, "[d]id the Appellate Court properly conclude that the defendant did not waive a claim of privilege with respect to information relating to the magnitude of his heroin habit contained in his [department of correction] record[s]?" State v. Jenkins, 262 Conn. 917, 811 A.2d 1293 (2002). Second, "[d]id the Appellate Court properly reverse the defendant's conviction absent any harmless error analysis and, if harmless error analysis is appropriate, was any error harmless?" Id. Although we agree with the Appellate Court that the defendant did not waive his right to invoke the psychiatrist-patient privilege with respect to his department of correction records, we further conclude that the improper disclosure of those records was harmless. We therefore reverse the judgment of the Appellate Court in part⁶ and remand the case to that court for a determination of the defendant's claim of instructional error.⁷

The opinion of the Appellate Court sets forth the following facts that the jury reasonably could have found and the following relevant procedural history. "The defendant lived with his girlfriend, Lisa Pettiford, and her three children, including the victim, in an apartment in Hartford. The victim was the youngest of the three children and was twenty-three months old at the time of his death. On February 9, 1996, the defendant arrived home in the morning after consuming heroin, cocaine and marijuana the previous evening and earlier that morning. The defendant continued to consume narcotics and fell asleep on the couch. At some point in the late morning, Pettiford placed the victim in the defendant's care and went to a bake sale at [a] community center near the apartment complex.

"Shortly before 2 p.m., the defendant came running into the community center screaming for help with the victim in his arms. Blood was observed coming from the victim's nose and mouth, and the defendant's shirt was full of blood. The defendant told Pettiford that the victim had fallen down the stairs. The director of the community center called for emergency assistance, and police, paramedics and fire personnel responded to the scene. The paramedics observed that the victim was not breathing, had no blood pressure, but appeared to have a pulse, and they observed that there `was quite a bit of trauma to the [victim's] head and face.' The defendant told the emergency personnel that the victim had suffered the injuries when he fell down stairs.⁸

"The victim was transferred to Hartford Hospital and was in full cardiac arrest when he arrived at approximately 2:20 p.m. Medical personnel were successful in resuscitating [the victim] at the hospital, but the victim exhibited no brain function. On February 10, 1996, at approximately 6 p.m., [medical personnel declared the victim] brain dead.

"On February 12, 1996, Detective James Rovella of the Hartford police department advised the defendant that he was going to be arrested on charges of murder and tampering with evidence. The defendant agreed to talk to Rovella concerning the incident and waived his Miranda⁹ rights. In a written statement the defendant gave to the police, he admitted that he had hit the victim.

"The defendant's written statement included the following. The defendant had consumed two bags of heroin in the morning and was sleepy. He was sitting on the couch and expected the victim to fall asleep. On two occasions, the defendant fell asleep and woke up startled because the victim was not around. On both occasions, the defendant found the victim and `popped [the victim] on his hand.' On the second occasion, the defendant also `popped [the victim] in the head twice with the belt. [The victim] cried a lot more this time. [The defendant continued:] I grabbed him by his hand and walked him back to the living room. When we got back to the living room I hit him twice in the head with the remote control for the [television] and told him he better sit down and stay down. [The victim] was crying. I laid back on the couch. I faked like I was going to sleep to see if he was going to move again. I closed my eyes just so I could see a little. [The victim] got up like he was going to get something. I got up and grabbed him and punched him [in] the chest and told him he better sit down. After I punched him in the chest it seemed like all the air went out of him because he made this noise. [The victim] fell backwards and he hit his head on the shelving unit where the [television] is. [The victim] just laid there and he wasn't crying or doing anything.'¹⁰ The defendant then described how he took the victim to the bathroom and tried to revive him. He then grabbed their coats and went to the community center where [Pettiford] was located.

"The victim's treating physician, Betty Spivack, testified that the injuries `were typical of multiple blows to the head coming from different directions striking different parts of the head. That is not typical of accidental injury such as a fall down stairs. This is, however, very typical of assaultive injuries.' "On February 11, 1996, the chief medical examiner for the state of Connecticut, Harold Wayne Carver II, conducted an autopsy.... Carver concluded that the victim `died as a result of blunt traumatic head injury' and classified `the manner of death as homicide.'

"During the trial, the state introduced the defendant's written statement into evidence during its case-in-chief. Part of that statement [provided]: `I have a heroin problem. Usually I would get a stack of bundles of heroin fronted to me. I would sell 55 bags for [$500] and then pay back the guy who fronted me. That would leave me with 45 bags profit. I would spend the money I made for the 45 bags on myself and the stuff for the house.... [Pettiford] knew about my habit. I sniffed 2 to 3 bundles of heroin a day but I know what I was doing when I sniffed the heroin. A bundle is ten bags. Sometimes I would fall asleep but I knew what was going on.'

"When the state [concluded] its case-in-chief, the defendant informed the court that he would be requesting an instruction on intoxication on the basis of his illegal drug use. Subsequently, the [state] advised the court that [it] had subpoenaed some department of correction records, which the state claimed were relevant to determine whether the defendant suffered from withdrawal symptoms. The absence of withdrawal symptoms would presumably rebut the defense that the defendant was intoxicated at the time of the injuries to the child. The state also cited as a reason for requesting the records that the defendant's attorney had indicated that the defendant would be testifying and that, therefore, the issue of drug use was relevant. [The defendant notified the court that the department of correction records could contain mental health records and that, to the extent that they did, that portion of the department of correction records would be shielded from discovery by the state under the psychiatrist-patient privilege. See General Statutes §§ 52-146d through 52-146f.]¹¹ "Later that day, the court asked the defendant if it could view the records in camera to address the state's concerns and stated that `anything I read will be in confidence.' The defendant gave the court permission to review the records, including the mental health records, in camera to determine `what the state may receive.'

"The defendant was scheduled to take the witness stand to testify on the next court date. Before the defendant took the witness stand, the court noted that it had reviewed the [department of correction] records in camera and stated: `The court has examined them and finds at this point, with the exception of a reference to one or two matters that are probably privileged, finds nothing that would preclude the state from examining the records. Now, having said that, however, the court is going to request of the [state] that if the medical records are to be used, portions of them, in cross-examination, that we have a recess between the direct examination and the cross-examination so that the court can hear in...