State v. Phillips

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STATE OF CONNECTICUT v. TIMOTHY PHILLIPS
(AC 37183)
Gruendel, Sheldon and West, Js.
Argued April 8—officially released October 13, 2015
(Appeal from Superior Court, judicial district of
Hartford, Dewey, J.)
John L. Cordani, Jr., assigned counsel, for the appel-
lant (defendant).
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and David L. Zagaja, senior assistant state’s attor-
ney, for the appellee (state).
Opinion
SHELDON, J. The defendant, Timothy Phillips,
appeals from the judgment of conviction, rendered after
a jury trial, of three counts of sexual assault in the first
degree in violation of General Statutes § 53a-70 (a) (2),
and three counts of risk of injury to a child in violation of
General Statutes § 53-21 (a) (2), arising from an incident
involving a minor victim, K.1 On appeal, the defendant
claims that the trial court erred by (1) failing to admit, as
substantive evidence, certain statements by mandated
reporters of child abuse to the Department of Children
and Families (department) concerning K’s character for
untruthfulness, which were set forth in a department
report concerning its investigation of the incident; (2)
failing to disclose evidence to the defense that K had
also made allegations of sexual assault against another
individual, which assertedly would have aided the
defendant in preparing and presenting his defense at
trial. We affirm the judgment of the trial court.
The following facts, which reasonably could have
been found by the jury, are necessary to our consider-
ation of the defendant’s claims. At the time of the inci-
dent, K, a twelve year old girl with cognitive limitations,2
was living with her grandparents in Windsor. The defen-
dant befriended K’s grandfather in 2009 or 2010 when
they met at a car dealership in Windsor. Thereafter, the
defendant and the victim’s grandfather worked on cars
together, and the defendant occasionally spent time at
the home of K and her grandparents.
On Saturday, June 18, 2011, the defendant asked K’s
grandfather if he could take K to a family picnic. K’s
grandfather felt comfortable with the defendant, and
so he agreed. The defendant, however, did not take K
to a family picnic. Instead, he took her out to eat at a
Chinese restaurant in Manchester, where K’s special
education paraprofessional, Paula Glofka, was dining
with her family. K approached Glofka, then hugged her
and told her that she was at the restaurant with a friend.
When Glofka introduced herself to the defendant, she
noted that he appeared to be ‘‘tense or nervous.’’
After dinner, the defendant took K to his trailer in
Hartford. There, the defendant sexually assaulted K on
his couch as they watched a movie. The defendant told
K that he liked her and he ‘‘wanted to do stuff to [her].’’
The defendant first removed K’s pants and underwear
and performed oral sex on her. The defendant then
inserted his penis into her vagina and anus. K told the
defendant that it hurt, and that she wanted him to stop,
but he did not stop. After assaulting K, the defendant
brought her home. K did not tell her grandparents what
had happened. The next day, the defendant returned
to K’s house, and he stayed for a short time.
On the following Monday morning, shortly after
school started, K approached Glofka and told her that
she had had ‘‘S-E-X’’ with the defendant. Glofka
promptly notified the school social worker, Karen
Henry, who contacted the department. In Henry’s pres-
ence, K drew a picture of two stick figures, representing
herself and the defendant, to indicate where on her
body the defendant had touched her with his penis. A
medical examination was performed that same day at
the Connecticut Children’s Medical Center by Dr. Zoe
Casey. Casey discovered a linear, one centimeter tear
on the interior of K’s vagina that was consistent with
sexual intercourse. K reported to Casey that she was
experiencing burning with urination, and that she was
suffering from a bitten nipple.
Thereafter, K underwent a forensic interview at the
Greater Hartford Children’s Advocacy Center at Saint
Francis Hospital and Medical Center. A video recording
of the interview was shown to the jury at trial. In the
interview, K gave a full description of the defendant’s
assaultive conduct toward her in his trailer. She also
described the trailer. K stated that the exterior of the
trailer was white with blue and brown stripes. As for
the interior of the trailer, K stated that the couch where
the defendant had assaulted her was red and of the sort
that ‘‘flips back into a bed.’’ Opposite the red couch,
she stated, there was a television and another couch,
which formed an ‘‘aisle’’ in the center of the main living
area. Portions of K’s interview varied from her testi-
mony at trial. In the interview, K alleged, for the first
time, that the defendant had assaulted her a second
time, on Sunday, June 19, at her home. The police,
however, were unable to substantiate that allegation,
and K later testified that she did not in fact have contact
with the defendant after Saturday, June 18.
Detective Josh Lewis of the Hartford Police Depart-
ment was assigned to investigate the assaults. Lewis
drove K and her grandmother around the area in Hart-
ford where he believed that the assaults may have
occurred, based on K’s account. K directed Lewis to
the defendant’s trailer, which was parked behind an
industrial building located on North Main Street. The
appearance of the defendant’s trailer was consistent
with K’s previous description of it.
Forensic testing was performed on the clothing that
K had worn on the day of the incident. Screening tests
revealed the presence of amylase, an enzyme that is
found in human saliva, on the interior panel of the
crotch of K’s underpants. Two cuttings were removed
from the interior panel and sent to the state forensic
laboratory for DNA testing. A DNA sample extracted
from the biological material on one of the cuttings was
tested using Y STR DNA testing to determine whether
the defendant was a possible contributor to that sample.
The result of such testing was that the defendant was
included as a possible source of the DNA.3 The reported
statistical significance of the match was one in 1557 in
the African American population, one in 1922 in the
Caucasian population, and one in 1004 in the His-
panic population.
On the basis of such evidence, the jury convicted the
defendant of three counts of sexual assault in the first
degree and three counts of risk of injury to a child.4
The court rendered judgment in accordance with the
jury’s verdict by imposing a total effective sentence of
thirty-five years incarceration. This appeal followed.
I
The defendant first claims that the court erred in
refusing to admit, as substantive evidence, a department
report containing statements made by certain mandated
reporters of child abuse concerning K’s character for
untruthfulness. Specifically, the defendant directs our
attention to portions of the department report reciting
statements by K’s paraprofessional and the school
social worker, Glofka and Henry, respectively, that (1)
K is not always truthful; (2) K had a reputation for
making up stories, and (3) K had fabricated a story
about being chased through the school by an unknown
man. The defendant contends that Glofka and Henry,
as mandated reporters, had a statutory duty to report
the defendant’s alleged assaults, and thus their statuto-
rily mandated statements were admissible, in their
entirety and without limitation as to their use, under
the business records exception to the rule against hear-
say. The state argues that the defendant’s claim was
waived. We agree with the state.
The following additional facts are necessary for our
discussion. On the first day of trial, Glofka testified
concerning K’s disclosure and the subsequent reporting
of K’s allegations against the defendant to the depart-
ment. On cross-examination, defense counsel ques-
tioned Glofka as follows:
‘‘[Defense Counsel]: Isn’t it true ma’am, that . . .
when you talked to [the department], you told them
that [K] is such a habitual liar that you can’t tell if she’s
telling the truth or she wasn’t telling the truth?
‘‘[Glofka]: No one told me that and I have not
heard that.
‘‘[Defense Counsel]: Okay. You haven’t heard that?
You didn’t say that to anybody at all?
‘‘Glofka: No.’’
Defense counsel refreshed Glofka’s recollection with
a copy of the department report, and asked her again,
‘‘[A]re you saying that you never told anybody else that
[K] was a liar?’’ Glofka responded: ‘‘No.’’
Defense counsel pursued a similar line of questioning
during his cross-examination of Henry:
‘‘[Defense Counsel]: And did you talk to the person
[from the department] and tell them that [K’s] a liar,
her grandparents have their hands full with her?
‘‘[Henry]: Did I say that? I mean, I don’t know—she’s
a handful.
‘‘[Defense Counsel]: Okay.
‘‘[Henry]: She’s a handful.
‘‘[Defense Counsel]: Okay. And she isn’t always truth-
ful about things.
‘‘[The Court]: Is that a question?
‘‘[Defense Counsel]: Yes.
‘‘[Henry]: I really can’t answer that yes or no. Does
she tell sometimes stories? I don’t know if it’s telling
stories. She’ll get—she wants my attention, like so and
so just told her that . . . she looked ugly. You know,
you’re like, could you please ignore it, and that’s one
of my goals, you know what I mean, to her is—you
know, please bring to the attention what’s important.
‘‘[Defense Counsel]: Okay. I understand that, ma’am.
But did you tell [the department] that she isn’t
always truthful?
‘‘[Henry]: I can’t—you know what, I can’t—I really
don’t recall that. Does she not tell the truth? I don’t
know, to tell you the truth.
‘‘[Defense Counsel]: Okay. Not a problem.’’
On the second day of trial, defense counsel informed
the court that he had subpoenaed a representative from
the department to lay a foundation for the admission
of the department report as a business record. Defense
counsel claimed that the department report was admis-
sible under State v. Palozie, 165 Conn. 288, 295, 334
A.2d 468 (1973). More specifically, defense counsel
argued that the statements of K’s teachers contained
in the report, made under circumstances in which they
had a duty to report their observations, were admissible
under the business records exception to the rule against
hearsay. Additionally, the defendant contended that the
statements in the department report were admissible
under the Connecitcut Code of Evidence § 6-105 as prior
inconsistent statements. Specifically, defense counsel
stated: ‘‘[U]nder the Connecticut [Code] of Evidence
[§] 6-10, these particular witnesses, the ones I’m looking
[to] admit evidence against, which is . . . Henry and
. . . Glofka, they were shown the statements, they
denied making the statements and, as such, because of
their . . . denial—then the defense is able to get into
extrinsic evidence of prior inconsistent statements.’’
(Emphasis added.)
After hearing arguments from both sides, the court
stated that it would review the department report in
camera and limit its consideration of its admissibility
‘‘to whether or not those two [witnesses] made a prior
inconsistent statement, and that’s all.’’ The defendant
did not object to the court’s review of the department
report for that limited purpose.
Thereafter, the court, after reviewing the department
report and State v. Palozie, supra, 165 Conn. 288, agreed
to admit certain portions of the department report as
evidence of prior inconsistent statements by Henry and
Glofka.6 Thus, the jury received evidence that ‘‘the
caller’’ in the report, Henry, had made statements to
the department that the victim is not always truthful,
and that Glofka had reported to the department that
the victim is known to make up stories. The court gave
a limiting instruction regarding the proper use of such
evidence, informing the jury that it could only use the
evidence in assessing Glofka’s and Henry’s credibility.
The defendant did not object to this instruction. The
jury was similarly instructed in the court’s final charge
that it should ‘‘consider such evidence as you would
any other evidence of inconsistent conduct in determin-
ing the weight to be given to the testimony of the witness
in court.’’ Again, the defendant did not object to the
court’s instruction.
On appeal, the defendant claims that the court erred
in admitting limited portions of the department report
as prior inconsistent statements. He further argues that
the court’s instructions improperly restricted the jury’s
use of the statements to assess Glofka’s and Henry’s
credibility, and thereby prevented the jury from using
the statements to assess the victim’s credibility. That
restriction, he now claims, ‘‘vitiated the only purpose
of this evidence,’’ and thus deprived him of his constitu-
tional right to present a defense.
The defendant’s claims are inconsistent with his con-
duct at trial. The defendant sought to admit the prof-
fered statements on two alternative bases: as business
records under the business record exception to the
hearsay rule, or as prior inconsistent statements. When
the court indicated that it would consider the admissi-
bility of the evidence for the latter purpose, the defen-
dant did not object. Accordingly, when the court gave
its instructions limiting the jury’s use of the evidence,
both in the middle of trial and in its final charge, the
defendant did not object. As a result of his pursuit of
this trial strategy, the defendant sought successfully to
have portions of the department report admitted to
contradict Henry’s and Glofka’s statements at trial.
Against this background, having sought, then acqui-
esced in, the introduction of the subject statements for
limited purposes, the defendant cannot now object to
the court’s ruling so admitting them or instructions
confirming the limited scope of their permissible use.
‘‘We do not look with favor on parties requesting, or
agreeing to, an instruction or a procedure to be fol-
lowed, and later claiming that that act was improper.’’
(Internal quotation marks omitted.) State v. Reynolds,
118 Conn. App. 278, 305 n.7, 983 A.2d 874 (2009), cert.
denied, 294 Conn. 933, 987 A.2d 1029 (2010). The defen-
dant proposed that the court admit the department
report as a prior inconsistent statement, thus he cannot
now claim error, constitutional or otherwise, on appeal.
See State v. Coleman, 304 Conn. 161, 174–75, 37 A.3d
713 (2012) (defendant implicitly waived claim of consti-
tutional error when he requested that the court omit
language in the jury charge ‘‘ ‘or’ ’’ add further instruc-
tions highlighting additional circumstances by propos-
ing ‘‘equally satisfactory alternative forms of relief’’).
We deem this claim waived, and, therefore, we decline
to review it.
II
The defendant also claims that the trial court’s failure
to disclose certain confidential records violated his
fourteenth amendment rights under Pennsylvania v.
Ritchie, 480 U.S. 39, 107 S. Ct. 989, 94 L. Ed. 2d 40(1987), and Brady v. Maryland, 373 U.S. 83, 83 S. Ct.
1194, 10 L. Ed. 2d 215 (1963).7 We disagree.
The following facts are relevant to our resolution
of the defendant’s claim. Approximately seven months
after the defendant’s arrest, K made allegations that
another individual had sexually assaulted her. In con-
nection with those allegations, K underwent a forensic
interview at the Greater Hartford Children’s Advocacy
Center at Saint Francis Hospital and Medical Center,
in the course of which she disclosed the identity of her
alleged assailant and gave a detailed account of the
alleged sexual assault. Six days before trial, the prosecu-
tor informed the court and defense counsel that he had
subpoenaed a video recording and a summary report
of the forensic interview, and that, although he did not
believe that the records were exculpatory or otherwise
discoverable, he had obtained a waiver from K’s grand-
parents for the court to review them in camera. Defense
counsel concurred with the prosecutor that the pro-
posed in camera review of the records was appropriate,
but stated that the evidence should be disclosed to
the defense in any event because the contents of the
records, as described by the prosecutor, were excul-
patory.
Thereafter, the court reviewed the records in camera
and concluded that ‘‘[t]here was nothing in [them] that
would require additional discovery.’’ After the state had
rested, defense counsel reasserted his position that the
records should be disclosed to the defense, arguing
that evidence of another sexual assault complaint by
K tended to show that she was ‘‘in the habit of making
complaints.’’ The court disagreed, stating that multiple
allegations of sexual assault merely indicated that K
was a ‘‘multiple victim.’’
As a preliminary matter, we set forth the relevant
legal principles. ‘‘The defendant has a right to the disclo-
sure of exculpatory evidence under the due process
clauses of both the United States constitution and the
Connecticut constitution.’’ (Internal quotation marks
omitted.) State v. Caracoglia, 134 Conn. App. 175, 185,
38 A.3d 226 (2012). In Pennsylvania v. Ritchie, supra,480 U.S. 56, 58, the United States Supreme Court, relying
on the duty of the prosecution to disclose exculpatory
evidence under the due process clause of the federal
constitution as recognized in Brady v. Maryland, supra,373 U.S. 83, held that the defendant was entitled to have
the trial court conduct an in camera inspection of a
confidential child protective services agency file to
determine if it contained material exculpatory evidence,
and if so, to turn it over to the defense.8 Under Ritchie,
‘‘if the trial court discovers material exculpatory evi-
dence in the course of an in camera inspection, it has
a duty to disclose it to the defense and the defendant
has a due process right to its disclosure.’’ State v. Har-
ris, 227 Conn. 751, 762, 631 A.2d 309 (1993).
The test of material exculpatory evidence is whether
‘‘there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceed-
ing would have been different.’’ United States v. Bagley,
473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481(1985). The United States Supreme Court has explained:
‘‘The question is not whether the defendant would more
likely than not have received a different verdict with
the evidence, but whether in its absence he received a
fair trial, understood as a trial resulting in a verdict
worthy of confidence. A ‘reasonable probability’ of a
different result is accordingly shown when the govern-
ment’s evidentiary suppression ‘undermines confidence
in the outcome of the trial.’ ’’ Kyles v. Whitley, 514 U.S.
419, 434, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995) (quot-
ing United States v. Bagley, supra, 473 U.S. 678).9
The defendant argues that the evidence is material
and exculpatory, and, thus, that it should have been
disclosed, for the following reasons. If K’s allegations
against the unknown individual were false, the confi-
dential records constitute impeachment evidence that
should have been disclosed to the defense. Alterna-
tively, if the allegations were true, and K was sexually
assaulted by another individual, the evidence tends to
support an alternative explanation for the presence of
the one centimeter tear on the interior of K’s vagina.
With these factors in mind, the defendant urges this
court to examine the confidential records to determine
whether he was prejudiced by the court’s denial of
access to them.10
On appeal, this court conducts an independent review
of the confidential records to determine whether they
contain exculpatory evidence that is material under
Brady. See State v. Boyd, 89 Conn. App. 1, 26, 872 A.2d
477 (2005), overruled in part on other grounds, State
v. Kemah, 289 Conn. 411, 957 A.2d 852 (2008). We limit
our discussion concerning the contents of the records
to protect the victim’s confidentiality. See State v. Fran-
cis, 70 Conn. App. 571, 577–78, 800 A.2d 574 (2002)
(in reviewing confidential records, we state ‘‘only that
which is necessary to illuminate our decision’’ in order
to protect victim’s right to keep privileged records confi-
dential), rev’d on other grounds, 267 Conn. 162, 836
A.2d 1191 (2003). We have reviewed the records and
conclude that there is some information contained in
them that is exculpatory. We further conclude, how-
ever, that it is not probable that, had the evidence been
disclosed to the defense, the result of the proceeding
would have been different.
The defendant argues that the exculpatory value of
the evidence was particularly significant in this
instance, and should have been disclosed, because K
is a child witness with limited intellectual abilities; K
had made and retracted another admittedly false allega-
tion of sexual assault—more particularly, that the
defendant sexually assaulted her a second time on Sun-
day, June 19; and there was evidence before the jury
that K was not always truthful. He further argues that
the evidence should have been disclosed ‘‘as proof of
an alternat[ive] source of [K’s injury],’’ specifically, the
one centimeter tear in K’s vagina. See General Statutes
§ 54-86f (1) (prior sexual conduct admissible to show
whether defendant was source of injury). We disagree
that these factors change the calculus here, given the
substantial corroborating evidence of the defendant’s
guilt. ‘‘Materiality is not determined in a vacuum; rather,
it must be made in the context of all the evidence
adduced at trial.’’ State v. Jaynes, 36 Conn. App. 417,
423, 650 A.2d 1261 (1994), cert. denied, 233 Conn. 908,
658 A.2d 980 (1995).
The evidence established that the defendant sought
K’s grandfather’s permission to take K out for the stated
purpose of bringing her to a family picnic. Glofka then
observed K out to eat with the defendant at a different
location, particularly, a Chinese restaurant in Manches-
ter. Glofka recalled that the defendant appeared ner-
vous. K testified that, after dinner, the defendant took
her to his trailer. The evidence established that K was
able to lead investigators directly to the defendant’s
trailer, which was parked on the rear side of an indus-
trial building in Hartford, and could describe its interior
in detail.
K further testified that the defendant assaulted her,
‘‘[l]icking’’ her, penetrating her vaginally with his penis,
and doing ‘‘the [s]ame thing what he did to the front
doing the same to back.’’ The physical evidence sup-
ported K’s account. Casey, the physician who examined
K, testified that she discovered a one centimeter tear
on the interior of K’s vagina. Casey further testified that
the tear was unlikely to have resulted from an external
injury; instead, it was an internal abrasion of the sort
that was consistent with having been caused by forced
sexual intercourse. Finally, and most significantly, the
state presented evidence that male DNA matching the
defendant’s DNA was discovered in the crotch of the
underpants K was wearing on the day of the alleged
assault. The record before the trial court supported no
reasonable alternative explanation for the presence of
such incriminating evidence in the minor victim’s
underpants.
A defendant asserting a Brady claim on appeal shoul-
ders a heavy burden. He must show ‘‘that the favorable
evidence could reasonably be taken to put the whole
case in such a different light as to undermine confidence
in the verdict.’’ (Internal quotation marks omitted.)
State v. Skakel, 276 Conn. 633, 700, 888 A.2d 985, cert.
denied, 549 U.S. 1030, 127 S. Ct. 578, 166 L. Ed. 2d
428 (2006). Having undertaken a careful review of the
confidential materials and the trial record, we conclude
that the defendant has not made such a showing, and,
thus, that he cannot prevail on his claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse, we decline to identify the complainant or others
through whom the complainant’s identity may be ascertained. See General
Statutes § 54-86e.
2
K has an IQ of 72 and suffers from multiple learning and cognitive disa-
bilities.
3
Two DNA tests were performed on the biological material on the victim’s
underpants, an ‘‘Identifiler’’ test and a ‘‘PowerPlex Y’’ test. The PowerPlex
Y test identifies the Y chromosome, or male genetic markers, in the sample
and is used where there is a potential mixture of male and female DNA.
See People v. Stevey, 209 Cal. App. 4th 1400, 1413, 148 Cal. Rptr. 3d 1 (2012)
(‘‘Both the strength and the weakness of the Y–STR testing is the fact that
only males have the Y chromosome. . . . As a result, the Y–STR testing
can be used to resolve difficult mixed-source samples by examining the
DNA of only the male.’’ [Citation omitted.]); see also 2 P. Giannelli et al.,
Scientific Evidence (5th Ed. 2012) § 18.03 [d], p. 61. In the present case, the
DNA profile generated using the Identifiler test included the victim as a
possible source of the DNA, but excluded the defendant as a possible source.
The male DNA profile generated using the Powerplex Y STR test included
the defendant as a possible source of the DNA.
4
The three counts of sexual assault were based on the allegations of
cunnilingus, penile-vaginal intercourse, and penile-anal intercourse. The
three counts of risk of injury to a child were based on contact with the
intimate parts of a child under sixteen years of age.
5
Section 6-10 of the Connecticut Code of Evidence provides:
‘‘(a) Prior inconsistent statements generally. The credibility of a witness
may be impeached by evidence of a prior inconsistent statement made by
the witness.
‘‘(b) Examining witness concerning prior inconsistent statement. In exam-
ining a witness concerning a prior inconsistent statement, whether written
or not, made by the witness, the statement should be shown to or the
contents of the statement disclosed to the witness at that time.
‘‘(c) Extrinsic evidence of prior inconsistent statement of witness. If a
prior inconsistent statement made by a witness is shown to or if the contents
of the statement are disclosed to the witness at the time the witness testifies,
and if the witness admits to making the statement, extrinsic evidence of
the statement is inadmissible, except in the discretion of the court. If a prior
inconsistent statement made by a witness is not shown to or if the contents
of the statement are not disclosed to the witness at the time the witness
testifies, extrinsic evidence of the statement is inadmissible, except in the
discretion of the court.’’
6
Defense counsel agreed that limited portions of the department report
should be admitted: ‘‘The only point that I feel as though should come under
[State v. Palozie, supra, 165 Conn. 288] . . . is the statement regarding
[Glofka’s] reported [statement] that [K’s] known to make up stories. And
that’s it in terms of [K’s] statements . . . . I’m not really eager to make
an argument on that stuff; I’m not really seeking to have that stuff [be]
admissible . . . .’’
7
The defendant also claims that the production of the evidence was
required under the compulsory process clause of the sixth amendment. In
Pennsylvania v. Ritchie, supra, 480 U.S. 56, however, the United States
Supreme Court declined to consider whether the compulsory process clause
is implicated in cases involving privileged records, and instead adopted the
due process framework set forth in Brady v. Maryland, supra, 373 U.S. 83.
8
In Pennsylvania v. Ritchie, supra, 480 U.S. 43, the defendant was charged
with sexually assaulting his thirteen year old daughter. Due to the nature
of the incident, the assault was reported to the state children and youth
services agency. Id. Prior to trial, the defendant argued that he was constitu-
tionally entitled to review the contents of the agency’s file because it might
include evidence favorable to his defense. Id., 44. The Supreme Court
rejected the defendant’s claim that he should have been granted access to
the file because it implicated his sixth amendment right of confrontation—
terming that a trial right and not a pretrial right. Id., 52–53. The Supreme
Court concluded, however, that the defendant was entitled to have the
trial court review the file, in camera, under the fourteenth amendment due
process clause. Id., 56, 58.
9
The state analyzes the defendant’s claim under the legal framework set
forth by our Supreme Court in State v. Esposito, 192 Conn. 166, 179–80, 471
A.2d 949 (1984), a decision that predates the United States Supreme Court’s
decision in Ritchie. Esposito affords the defendant access to a witness’
confidential records if the records contain information that implicates the
defendant’s sixth and fourteenth amendment right to confront and impeach
the witness. See id., 178–79. Thus, under Esposito, the relevant consideration
for the court in conducting an in camera review of a witness’ confidential
records is whether the records contain information that is probative of the
witness’ ability to tell the truth, or whether there is information that relates
to the witness’ capacity or ability to relate facts bearing on the issues at
trial. Id., 176. When the court concludes that information in the records
impacts the defendant’s ability to impeach or discredit the witness, the
remedy is to disclose the relevant portions of the records to the defense,
or if the witness refuses to consent to such disclosure, the court may strike
the witness’ testimony. Id., 179–80. On the other hand, Pennsylvania v.
Ritchie, supra, 480 U.S. 43, ‘‘creates a broader right for an in camera inspec-
tion of qualified privileged documents under the due process clause of the
fourteenth amendment than exists pursuant to the sixth amendment right
of confrontation’’; State v. Leduc, 40 Conn. App. 233, 248, 670 A.2d 1309(1996); and the court’s review of the confidential records centers on Brady’s
materiality standard–that is, whether the records contain impeachment evi-
dence and/or evidence that bears on the defendant’s culpability in the alleged
crimes. See State v. Falcon, 90 Conn. App. 111, 121, 876 A.2d 547, cert.
denied, 275 Conn. 926, 883 A.2d 1248 (2005). In this case, the confidential
records were brought to the court’s attention by the prosecutor pursuant
to his constitutional and statutory obligation to disclose exculpatory infor-
mation and materials. We, thus, consider the defendant’s claim under the
Brady framework.
10
The state agrees that this court should review the records.