State v. Storlazzi

• Decision Date: 13 September 1983
• Citation: State v. Storlazzi, 191 Conn. 453, 464 A.2d 829 (Conn. 1983)
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Joseph STORLAZZI.

Page 829

464 A.2d 829

191 Conn. 453

STATE of Connecticut v. Joseph STORLAZZI.

Supreme Court of Connecticut.

Argued April 7, 1983.

Decided Sept. 13, 1983.

John J. Keefe, Jr., New Haven, with whom, on brief, was Hugh F. Keefe, New Haven, for appellant (defendant).

Julia D. Dewey, Asst. State's Atty., and Lawrence J. Fossi, law student intern, with whom, on brief, were Arnold Markle, State's Atty., and Patrick J. Clifford, Asst. State's Atty., for appellee (state).

Before HEALEY, PARSKEY, SHEA, GRILLO and BORDEN, JJ.

BORDEN, Associate Justice.

The defendant was convicted of promoting prostitution in the first degree in violation of General Statutes § 53a-86(a)(2); sexual assault in the second degree in violation of General Statutes § 53a-71(a)(1); and risk of injury to a minor in violation of General Statutes § 53-21. He raises three issues on appeal: (1) violation of his rights of confrontation and to due process of law in the court's denial of access to certain psychiatric and social agency records of the victim; (2) error in the court's charge on the definition of cunnilingus as part of its charge on sexual assault in the second degree; and (3) error in the court's charge on both sexual assault in the second degree and risk of injury to a minor. We find no error.

It is not necessary to detail all the facts which the evidence would support. Suffice it to say that the jury could reasonably have found the following facts. On two days in September, 1977, at the defendant's apartment, the defendant, then age sixty-nine, and the victim, then age thirteen engaged in cunnilingus. On the second day she also had vaginal intercourse with two men called to the apartment by the defendant and was photographed by one of these men while engaged in cunnilingus with the defendant. Thereafter, until June, 1978, on various occasions at the defendant's apartment; the victim and the defendant engaged in cunnilingus; the defendant masturbated her with a vibrator; she engaged in sexual relations with numerous men who paid the defendant money which he told her he was holding to buy her a car for her sixteenth birthday; and the defendant took numerous pictures of her in the nude. Additional facts pertinent to the claimed errors on appeal are discussed below.

I

At the time of the trial the victim was age seventeen. After her relationship with the defendant ended, over a period of time before the trial she was treated and evaluated by various psychiatric, psychological and social agencies. These were the Hartford Institute of Living, the Clifford Beers Child Guidance Clinic (Clifford Beers), the Connecticut department of children and youth services and the Adolescent Crisis Unit for Treatment and Evaluation of St. Raphael's Hospital (ACUTE). Before trial the defendant subpoenaed the records of these agencies and moved to examine them for the purposes of inquiring into the victim's competence to testify, supporting his request for a psychiatric examination of the victim ¹ and assisting in his cross-examination of her. The court ordered the records sealed, reviewed them in camera and denied the defendant access to them. After the victim testified on direct examination but before cross-examination the defendant renewed his motion for access to the records. The court, having already read the records and having heard the victim's testimony, again denied the defendant access to them.

The defendant claims first that denial of access to the victim's records violated his sixth amendment right of confrontation. He argues that where the state's case rests on a key witness and where the defense amounts to an attack on that witness' credibility ² he is entitled to access to that witness' records of psychiatric, psychological and social agency treatment and evaluation for possible use in cross-examination. Alternatively, he urges this court to examine the records to determine if he was prejudiced by denial of access to them. The state agrees with this alternate position. We reject the defendant's claim of entitlement of access to the records; we agree that we must review the trial court's determination by examining the records ourselves; and we conclude that the court did not violate the defendant's right of confrontation by denying him access to the records. ³

In State v. Piskorski, 177 Conn. 677, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S.Ct. 283, 62 L.Ed.2d 194 (1979), in which the defendant was afforded access to the witness' psychiatric records, we noted that in view of that access and the unrestricted cross-examination of the witness "it cannot be said that the defendant was ... deprived of his [right] to ... confront the witness or denied due process of law. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 [1974]; cf. State v. Corley, 177 Conn. 243, 246, 413 A.2d 826 [1979]." Id., 177 Conn. 738, 419 A.2d 866. The defendant's claim here requires us to decide whether, under the circumstances of this case, denial of access to similar records deprived this defendant of his right of confrontation.

We adhere to the principle that the opportunity for cross-examination is central to the constitutional right of confrontation and that the constitutional standard is met when defense counsel is enabled to bring before the jury facts bearing on a witness' reliability. State v. Ouellette, 190 Conn. 84, 101, 459 A.2d 1005 (1983). This principle must, moreover, shape the determination of whether the defendant gains access to material such as is involved here.

This does not mean, however, that any such records must be disclosed to the defendant simply because they relate to a key state's witness whose claimed lack of credibility is the foundation of the defense. Like a witness' personnel files, "[t]here are strong policy reasons for maintaining the confidentiality of ... files of the type involved in this case." State v. Januszewski 182 Conn. 142, 171, 438 A.2d 679 (1980). Such records often will contain sensitive and private material from and about other members of the witness' family, and sensitive and private information about the witness' emotional life, all of which may have no bearing on the witness' ability to recall and relate the truth. Furthermore, society has an interest, which this state has elevated to the status of a privilege in the case of a patient and psychiatrist or psychologist and which a general rule of confidentiality will further, in encouraging people to seek counseling in times of emotional distress and encouraging those people "to make full disclosure to a physician [or other mental health professional] in order to obtain effective treatment free from the embarrassment and invasion of privacy which could result from [access to] a doctor's [or other mental health professional's records]." State v. White, 169 Conn. 223, 234-35, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975). These reasons for confidentiality must in each case be weighed against the defendant's right to bring to the jury's attention facts affecting the witness' credibility. Cf. Davis v. Alaska, supra, (Confidentiality of state's witness' juvenile record must yield to defendant's right to cross-examine for bias). Therefore, as occurred in this case, "an in camera inspection by the trial judge of the witness' [records] for material relevant to the issue of credibility" is appropriate. State v. Januszewski, supra, 182 Conn. 173-74, 438 A.2d 679.

The linchpin of the determination of the defendant's access to the records is whether they sufficiently disclose material "especially probative of the ability to 'comprehend, know and correctly relate the truth' "; United States v. Lindstrom, 698 F.2d 1154, 1165-66 (11th Cir.1983); so as to justify breach of their confidentiality and disclosing them to the defendant in order to protect his right of confrontation. As in the case of admissibility of such records, access to records bearing on "the mental unsoundness of a witness (i.e., relating to a trait importing in itself a defective power of observation, recollection or communication), at or around the time of trial or of the occurrence about which he is to testify"; State v. Piskorski, supra, 177 Conn. 736, 419 A.2d 866; should be granted to the defendant. And as in the case of admissibility of such records, however, access to "such [records] must be left to the discretion of the trial court which is better able to assess the probative value of such evidence as it relates to the particular case before it"; id., 737, 419 A.2d 866, and to weigh that value against the interest in confidentiality of the records. Whether and to what extent access to the records should be granted to protect the defendant's right of confrontation must be determined on a case by case basis.

With this standard in mind we have examined the voluminous records involved here. We conclude that the trial court did not err in refusing the defendant access to them. There is nothing in them to suggest that the victim was subject to such traits as hallucinations, delusions, lack of contact with or misperception of reality, paranoia or inability to tell the truth. ⁴ They do not sufficiently disclose material especially probative of the victim's ability to know and correctly relate the truth so as to justify breaching their confidentiality in disclosing them to the defendant. Furthermore, on cross-examination of the victim and in the defendant's case the jury was informed that she had been committed to and treated at the Institute of Living, had spoken with personnel and doctors at Clifford Beers and ACUTE, and had visited a drug rehabilitation center. Thus, the fact of treatment was disclosed to the jury; and the defendant does not complain of any restriction on the extent to which he actually cross-examined the victim. Denial of access to the records, therefore, did not deprive the defendant of his right of confrontation.

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