State v. Cusson

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STATE OF CONNECTICUT v. MARK CUSSON
(AC 43352)
Prescott, Cradle and DiPentima, Js.

Syllabus

Convicted, after a jury trial, of the crimes of cruelty to persons and disorderly
conduct, the defendant appealed to this court. The defendant, a former
forensic nurse for a maximum security psychiatric facility operated by
the Department of Mental Health and Addiction Services, and other
facility staff, physically abused and demeaned the victim, who suffered
from several mental health disorders and was committed to the facility.
After the department learned of the defendant’s conduct, it informed
state law enforcement and launched an administrative investigation,
which led to criminal charges and adverse employment actions against
several employees, including the defendant. Prior to trial, the trial court
held a hearing on the state’s motion in limine seeking to preclude the
admissibility of the victim’s testimony on the ground that he was incom-
petent to testify at trial pursuant to the relevant section (§ 6-3) of the
Connecticut Code of Evidence. At that hearing, the state offered expert
testimony from the victim’s treating psychiatrist, who had personally
observed the victim multiple times per day, nearly every day, for a period
of two years. The defendant argued that the psychiatrist’s testimony
alone was insufficient to establish that the victim was incapable of
providing reliable and truthful testimony and moved for an independent
psychiatric evaluation of the victim, which the court denied, or, in the
alternative, the defendant requested that the court evaluate the victim
under oath. The court granted the state’s motion to preclude the victim’s
testimony and credited the testimony of the victim’s psychiatrist, who
testified that the victim had poor cognitive memory, had trouble retaining
information, was unable to narrate events or recall past experiences in a
rational way, and posed a safety risk to others. Before trial, the defendant
moved for sanctions and argued that the prosecution had engaged in
witness intimidation because the department attempted to intimidate
the defense witnesses, H and L, facility employees, from testifying at
trial on the defendant’s behalf and such misconduct was attributable
to the state through a theory of vicarious liability. H and L previously
appeared at a sentencing proceeding for another facility employee who
was accused of similar misconduct toward the victim as the defendant.
At that proceeding, H and L allegedly exposed the victim’s confidential
and protected medical information while giving their statements to the
court in violation of work rule policies and the Health Insurance Portabil-
ity and Accountability Act (HIPAA), and, subsequently, were placed on
administrative leave by the department, pending investigation. When
called to testify at the pretrial hearing for the defendant, the prosecutor
informed the court that there was a possibility that L could incriminate
herself if she were to testify at the hearing. L invoked her fifth amend-
ment right against self-incrimination and provided little substantive testi-
mony, and H testified that she was afraid to lose her job but would
appear at the defendant’s trial if subpoenaed and would testify at trial
if ordered to by the court with the understanding that her testimony
would not violate work rules. At that same hearing, another defense
witness, B, a human resources manager for the department, who was
responsible for investigating and conducting fact-finding for alleged
work rule and policy violations, testified that the victim’s conservator
had signed releases that permitted the defense witnesses to testify
regarding the victim’s health status and, therefore, the department would
not take action against witnesses who testified regarding the victim. On
the defendant’s appeal to this court, held:
1. The defendant could not prevail on his claim that the trial court violated
his sixth amendment right to present a defense by failing to take adequate
procedural measures before ruling that the victim was incompetent to
testify at the defendant’s trial:
a. The trial court properly exercised its discretion when it declined the
defendant’s request to contemporaneously observe the victim before
ruling on his competency to testify at trial, contrary to the defendant’s
claim, State v. Weinberg (215 Conn. 231) did not stand for the proposition
that the court must personally observe a potential witness prior to making
a competency determination; moreover, in Weinberg, the trial court relied
on the substance of the expert psychiatrist’s testimony, and not its own
contemporaneous examination, to make its legal determination regarding
the witness’ capacity for truthfulness, cognitive memory, and ability to
receive correct sensory impressions; furthermore, under the circum-
stances of the present case, the expert, who had personally observed
the victim multiple times per day, nearly every day, for two years, had
provided firsthand, expert testimony, which established that the victim
had limited cognitive memory, was not oriented to time, and offered
irrational responses to even the most basic questions and, therefore,
provided an adequate evidentiary basis to determine that the victim was
not competent to testify.
b. The trial court properly exercised its discretion when it denied the
defendant’s motion to have the victim examined by an independent
expert witness before ruling on his competency to testify, the decision
to order a psychiatric examination is within the discretion of the trial
court judge; moreover, the victim had undergone a psychiatric assess-
ment by a board certified psychiatrist who, having personally observed
him nearly every day for two years prior to the hearing, was uniquely
positioned to assist the court in evaluating the victim’s testimonial capac-
ity; furthermore, the court reasonably could have determined that order-
ing a second evaluation would have been redundant and a waste of
judicial resources.
2. Contrary to the defendant’s claim, the trial court did not violate his due
process right to present witnesses and properly exercised its discretion
when it denied the defendant’s motion to sanction the prosecution for
intimidating potential defense witnesses from testifying at trial: there
was no evidence that the department sought to intimidate defense wit-
nesses through administrative discipline, any prior disciplinary action
taken by the department against H and L was the sole result of their
alleged HIPAA violations, and, at the time of the evidentiary hearing, H
and L were not under threat of administrative discipline as the victim’s
conservator had signed releases that permitted them to testify regarding
the victim’s health status without violating HIPAA; moreover, the depart-
ment was not acting as an arm of the state, although prosecutorial
misconduct may extend to state agencies acting on the prosecution’s
behalf, there was no demonstrated relationship between the prosecution
and the specific adverse employment actions taken by the department
against H and L, and there was no evidence that B, who was primarily
responsible for the internal investigation, had any contact with any law
enforcement body during the pendency of the investigation.
3. The defendant could not prevail on his claim that the prosecution engaged
in impropriety when it alerted the trial court to a potential fifth amend-
ment concern with a defense witness’ expected testimony during a
pretrial hearing, thereby violating his constitutional right to a fair trial:
there was no evidence to indicate that the prosecutor undertook his
warning with the intention to chill L from testifying; moreover, the
prosecutor repeatedly stated that the state did not intend to pursue
criminal charges against the witness; furthermore, the defendant could
not prevail on his claim that the trial court denied his right to present
a defense and compel testimony in his favor by improperly granting L
a blanket fifth amendment privilege during the pretrial hearing on the
defendant’s motion for sanctions, the court having explicitly limited its
ruling to the defendant’s motion for sanctions, and the defendant, having
made no effort to call L as a witness at trial, therefore failed to take
steps to exercise his right to present a defense where the witness’
absence at trial was due to his failure to call her.
Argued September 13, 2021—officially released January 25, 2022

Procedural History

Substitute information charging the defendant with
eight counts each of the crimes of cruelty to persons
and disorderly conduct, brought to the Superior Court
in the judicial district of Middlesex and tried to the jury
before Suarez, J.; verdict and judgment of guilty of
three counts of cruelty to persons and five counts of
disorderly conduct, from which the defendant appealed
to this court. Affirmed.
Norman A. Pattis, with whom, on the brief, was
Kevin Smith, for the appellant (defendant).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, were Michael A. Gailor, state’s
attorney, and Jeffrey Doskos, supervisory assistant
state’s attorney, for the appellee (state).
Opinion

CRADLE, J. The defendant, Mark Cusson, appeals
from the judgment of conviction, rendered after a jury
trial, of three counts of cruelty to persons in violation
of General Statutes § 53-20 (a) (1), and five counts of
disorderly conduct in violation of General Statutes
§ 53a-182 (a) (2). On appeal, the defendant claims that
(1) the trial court violated his sixth amendment right to
present a defense by failing to take adequate procedural
measures before ruling that the victim was incompetent
to testify, (2) the trial court violated his due process
right to offer witness testimony by failing to sanction
the prosecution for intimidating potential defense wit-
nesses from testifying at trial, and (3) the state engaged
in prosecutorial impropriety by alerting the trial court
as to potential fifth amendment concerns with a defense
witness’ expected testimony during a pretrial hearing,
effectively precluding the witness from testifying and
denying the defendant his due process right to a fair
trial. We affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. From January, 1998, until March, 2017, the defen-
dant was employed as a forensic nurse at Whiting Foren-
sic Hospital (Whiting), a maximum security psychiatric
facility in Middletown operated by the Department of
Mental Health and Addiction Services (department). At
the time of the March, 2017 incidents that led to his
prosecution, the defendant held the title of forensic
head nurse and was assigned to Unit 6 of the facility.1
The victim, William Shehadi, was committed to Whit-
ing in 1995 after being found not guilty, by reason of
mental disease or defect, of killing his father and seri-
ously injuring his mother. Although the victim’s initial
commitment was for a period of ten years, his term of
commitment has been subject to review and extended
every two years by the Psychiatric Security Review
Board (board).2 He was assigned to Unit 6 from 2002
until the March, 2017 incidents that led to the defen-
dant’s arrest, at which point the victim was transferred
to a different unit.
The victim suffers from several diagnosed mental
health illnesses, including schizoaffective disorder,
bipolar type; autism spectrum disorder; and a personal-
ity disorder with borderline narcissistic and antisocial
traits. He is physically aggressive and tends to make
racially hostile and sexually inappropriate statements to
others. The victim’s mental health disorder also causes
sudden and significant mood swings, which render him
easily agitated and prone to violent outbursts. This
behavior has caused Whiting staff to frequently place
the victim in physical restraints. On several occasions,
he has caused injury to hospital staff, other patients,
and himself.
Due to the challenges posed by the victim’s condition,
Whiting placed him under special ‘‘two-to-one’’ observa-
tion orders.3 The hospital also installed a continuous
video feed in the victim’s room to more closely monitor
his behavior without the physical intrusion of staff.4
Between March 3 and 17, 2017, the video camera in the
victim’s room recorded several incidents that led to the
defendant’s arrest. Those recordings appeared to depict
the defendant, and other Whiting staff, physically abus-
ing and demeaning the victim. Specifically, the video
recordings show the defendant repeatedly kicking the
victim as he lay in bed and kicking the victim off the bed
and onto the floor. On several occasions, the defendant
restrained the victim by wrapping his legs around the
victim’s head. The defendant was also shown pouring
a cup of liquid on the victim and draping a mop on top
of the victim’s head. In one instance, the defendant
positioned his buttocks near the victim’s face and held
that position for several seconds. In another, the defen-
dant climbed on top of and straddled the victim, placing
his groin near the victim’s face, and appeared to thrust
his crotch in the victim’s direction. During these inci-
dents, other Whiting staff were present in the victim’s
room and observed the defendant’s actions. These inter-
actions and uses of physical restraint were not recorded
in Whiting’s observation logs.5
The department and Whiting administration learned
of the defendant’s conduct in late March, 2017.6 The
department then informed state law enforcement and
launched an administrative investigation.7 The defen-
dant was subsequently arrested and charged with eight
counts of cruelty to persons and eight counts of disor-
derly conduct.
A jury trial commenced on March 25, 2019. At trial,
the defendant testified that his conduct was intended
to be therapeutic rather than abusive. He claimed that
he acted in response to the victim’s growing agitation,
that the victim was soothed by human touch, and that
the use of leg restraints was an attempt to perform a
swaddling technique meant to comfort the victim. On
cross-examination, the defendant admitted that these
techniques were neither part of the victim’s treatment
plan nor approved by Whiting. The defendant also
stated that he failed to document the use of physical
restraint, which is required under Whiting policy.
The jury subsequently found the defendant guilty of
three counts of cruelty to persons and five counts of
disorderly conduct. On August 14, 2019, the trial court,
Suarez, J., sentenced the defendant to fifteen years
of incarceration, execution suspended after five years,
followed by three years of probation with special condi-
tions. This appeal followed. Additional facts and proce-
dural history will be set forth as necessary.
I
The defendant first claims that the trial court violated
his sixth amendment right to present a defense8 by
ruling that the victim was incompetent to testify at the
defendant’s trial. Specifically, the defendant argues that
the court abused its discretion by (1) failing, as a matter
of procedure, to conduct its own examination of the
victim before making a competency determination, and
(2) denying the defendant’s motion to order an indepen-
dent psychiatric evaluation of the victim. We disagree
with the defendant’s arguments and will address them
in turn.
The following additional facts and procedural history
are relevant to the resolution of this claim. On February
26, 2019, the state filed a motion in limine, pursuant to
§ 6-3 of the Connecticut Code of Evidence, seeking to
preclude the victim’s testimony on the basis that ‘‘[he]
suffers from a serious mental illness, which makes him
incapable of understanding the duty to tell the truth
and incapable of sensing, remembering, or expressing
himself.’’9 In support of its motion, the state sought to
offer expert testimony from Shana Berger, the principal
psychiatrist for the department and, at the time of trial,
the victim’s treating psychiatrist at Whiting. On March
6, 2019, the defendant filed an objection to the state’s
motion, arguing that Dr. Berger’s testimony alone was
legally insufficient to preclude the victim’s testimony
on the basis of incompetence.
On March 13, 2019, the trial court held a pretrial
hearing on the state’s motion in limine. At the hearing,
the state called Dr. Berger to testify as to the victim’s
ability to receive and remember sensory impressions,
his capacity for truthfulness, and his ability to express
himself in ways that others can understand. Dr. Berger
testified that she became a board certified psychiatrist
in 2011. She stated that she was currently serving as the
victim’s treating psychiatrist and had been the victim’s
treating psychiatrist since March 22, 2017.10 She clarified
that her treatment plan involved personally observing
and conversing with the victim ‘‘every weekday and [on]
some weekends.’’ Those interactions lasted anywhere
from a few minutes to one-half hour and occurred multi-
ple times throughout the day.
Dr. Berger testified that the victim was diagnosed
with schizoaffective disorder, bipolar type; autism spec-
trum disorder; and a personality disorder with border-
line antisocial and narcissistic traits, and had been diag-
nosed with other mental afflictions in the past. Dr.
Berger explained that these disorders have resulted
in several cognitive and communicative problems. She
also clarified that these issues are rooted in the victim’s
psychosis and that his condition has been worsening
over time.
Dr. Berger explained further that the victim has poor
cognitive memory, has trouble retaining information,
and is unable to accurately ‘‘observe what’s going on
around him and report it back in a factual manner.’’
She testified that he is not oriented to time as are typical
individuals, and he experiences difficulty understand-
ing temporal concepts like days and months. As a result,
the victim is unable to narrate events or recall past
experiences in a rational way. Although he is occasion-
ally capable of expressing preferences, his answers to
questions tend to be illogical and disjointed. When the
victim was asked specifically about the March, 2017
incidents at issue, Dr. Berger testified that the victim
‘‘didn’t respond . . . wasn’t able to answer questions
. . . ignored the question or answered in a manner that
didn’t make sense.’’
Dr. Berger also revealed that the victim has been
diagnosed with tardive dyskinesia, a neurological disor-
der that affects the musculature of his tongue and mouth.11
Consequently, the victim has difficulty expressing him-
self when speaking. Dr. Berger estimated that others can
only understand ‘‘maybe 30 to 40 percent of what he says.’’

Dr. Berger asserted that the victim would not respond
well to being transported to court for a competency
determination. She explained that the victim had not
left Whiting voluntarily for several years and that he
becomes ‘‘very agitated’’ when forced to leave for medi-
cal emergencies, requiring physical restraint and invol-
untary medication to effectively transport him to the
hospital. Notably, Dr. Berger testified that, in 2017, a
probate judge attempted to conduct a hearing in the
victim’s room because the victim refused to leave Whit-
ing. When the judge asked the victim questions, the
victim ‘‘hid under blankets and didn’t answer anything.’’
The court proceeded to hear argument from both
sides. The state contended that Dr. Berger’s testimony
alone was sufficient to establish that the victim was
incapable of providing reliable and truthful testimony.
In response, defense counsel moved for an independent
psychiatric evaluation of the victim. Specifically, defense
counsel argued that an independent evaluation would
help clarify whether the victim was unable to testify, or
whether he was simply unwilling to answer questions
regarding the March, 2017 incidents that led to the
defendant’s arrest. The court denied the defendant’s
motion, stating that the decision whether to order a
psychiatric evaluation is ‘‘left to the sound discretion
of the [trial] court, and . . . should be [done] on a
limited basis.’’
Alternatively, defense counsel requested that the
court arrange a ‘‘face-to-face’’ opportunity to evaluate
the victim under oath, either at Whiting or via electronic
video conference. The court asked defense counsel for
a proffer as to the ‘‘relevant testimony’’ that the victim
would present at trial. Defense counsel responded that
he intended to show the victim the March, 2017 video
recordings and have the victim explain the context
behind the video. Specifically, defense counsel sought
to ask the victim ‘‘about what was said at those times,
what [the victim] said, [and] whether there was any
provocation at any point.’’
On March 19, 2019, the court issued an oral decision
granting the state’s motion in limine. Crediting Dr. Berg-
er’s testimony, the court explained that the victim expe-
riences difficulty communicating, has limited cognitive
memory, is incapable of reliably answering questions,
and poses a physical safety risk to those around him.
The court made a finding that ‘‘he’s not oriented to
date, day or month. He’s incapable of applying informa-
tion. His recollection is poor and he’s not able to
respond to questions. He’s incapable of narrating events.’’
The court concluded that the victim ‘‘does not have the
capacity to perceive, remember, and relay facts in a
truthful manner, and for those reasons . . . is not mini-
mally credible or otherwise minimally competent to
testify.’’ The court also denied the defendant’s renewed
motion to voir dire the victim via video conference,
stating that the court was capable of making the neces-
sary findings ‘‘based on the evidence presented to it
. . . .’’
Having discussed the court’s ruling, we begin by set-
ting forth the legal principles and standard of review
that guide our analysis of this claim. ‘‘A [criminal] defen-
dant has a constitutional right to present a defense, but
he is [nonetheless] bound by the rules of evidence in
presenting a defense. . . . Although exclusionary rules
of evidence cannot be applied mechanistically to
deprive a defendant of his rights, the constitution does
not require that a defendant be permitted to present
every piece of evidence he wishes.’’ (Internal quotation
marks omitted.) State v. Mark T., 339 Conn. 225, 231–32,
260 A.3d 402 (2021). Indeed, ‘‘[t]he right to present a
defense does not compel the admission of any and all
evidence offered for that purpose. . . . The trial court
retains the discretion to rule on the admissibility, under
the traditional rules of evidence, regarding the defense
offered.’’ (Citation omitted.) State v. Shabazz, 246 Conn.
746, 758 n.7, 719 A.2d 440 (1998), cert. denied, 525
U.S.1179, 119 S. Ct. 1116, 143 L. Ed. 2d 111 (1999).
‘‘Accordingly, [i]f the proffered evidence is not relevant
[or is otherwise inadmissible], the defendant’s right to
[present a defense] is not affected, and the evidence
was properly excluded.’’ (Internal quotation marks
omitted.) State v. Mark T., supra, 232.
‘‘We first review the trial court’s evidentiary rulings,
if premised on a correct view of the law . . . for an
abuse of discretion. . . . If, after reviewing the trial
court’s evidentiary rulings, we conclude that the trial
court properly excluded the proffered evidence, then
the defendant’s constitutional claims necessarily fail.’’
(Internal quotation marks omitted.) State v. David N.J.,
301 Conn. 122, 133, 19 A.3d 646 (2011).
A
The defendant first claims that the court abused its
discretion by failing to personally observe the victim
before ruling as to the victim’s capacity to testify. More
generally, he contends that a trial court’s determination
regarding witness competency is procedurally insuffi-
cient in the absence of the court’s contemporaneous
examination of the witness in question. In response,
the state argues that Dr. Berger’s testimony provided
an adequate evidentiary basis to determine that the
victim was incompetent to testify at trial. We agree with
the state.
Although every person is presumed competent to be
a witness; Conn. Code Evid. § 6-1; a person may not
testify if (1) ‘‘the court finds the person incapable of
understanding the duty to tell the truth, or if the person
refuses to testify truthfully,’’ or (2) ‘‘the court finds the
person incapable of receiving correct sensory impres-
sions, or of remembering such impressions, or of
expressing himself or herself concerning the matter so
as to be understood by the trier of fact either directly
or through interpretation by one who can understand
the person.’’ Conn. Code Evid. § 6-3.12
Insanity or other mental incapacity does not automati-
cally, or even typically, cause testimonial incompetency.
Taborsky v. State, 142 Conn. 619, 629, 116 A.2d 433
(1955); E. Prescott, Tait’s Handbook of Connecticut
Evidence (6th Ed. 2019) § 6.3.3, p. 327. Rather, where
the competency of a witness is challenged, ‘‘the thresh-
old question to be answered by the court is whether
the testimony of that witness is minimally credible. If
the testimony of a witness passes the test of minimum
credibility, and is otherwise relevant, the testimony is
admissible and the weight to be accorded it, in light of
the witness’ incapacity, is a question for the trier of
fact.’’ State v. Weinberg, 215 Conn. 231, 243–44, 575
A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112
L. Ed. 2d 413 (1990). ‘‘The competency of a witness is
a matter peculiarly within the discretion of the trial
court and its ruling will be disturbed only in a clear
case of abuse or of some error in law.’’ (Internal quota-
tion marks omitted.) State v. Canady, 187 Conn. 281,
291–92, 445 A.2d 895 (1982).
Applying this framework to the present case, we con-
clude that the court did not abuse its discretion by
declining to conduct a contemporaneous examination
of the victim before making a competency determina-
tion. At the pretrial hearing, Dr. Berger testified that
she had personally observed the victim multiple times
per day, nearly every day, for a period of two years.
As a result, she provided firsthand, expert testimony
establishing that the victim has limited cognitive memory,
is not oriented to time, and offers irrational responses
to even the most basic questions. Dr. Berger clarified
that the victim has poor recall and that his narration
is unreliable. She also indicated that, when the victim
describes memories, or attempts to convey past events,
his speech becomes ‘‘disjointed,’’ ‘‘disorganized,’’ and
he loses touch with reality.13 Accordingly, the trial judge
reasonably could have concluded on the basis of Dr.
Berger’s testimony that the victim lacks ‘‘sufficient pow-
ers of observation, recollection, narration and truthful-
ness [necessary] to meet the threshold requirement of
minimum credibility.’’ State v. Weinberg, supra, 215
Conn. 244; see E. Prescott, supra, § 6.3.3, p. 327.
The defendant nevertheless contends that Dr. Berg-
er’s testimony, standing alone, provided an insufficient
basis for the court’s ruling without the court’s own
contemporaneous and independent observation of the
victim. He has failed, however, to identify any authority
holding that a trial court must personally observe a
potential witness before making a competency determi-
nation. Instead, the defendant relies on several cases,
including State v. Weinberg, supra, 215 Conn. 231, in
support of his argument. Specifically, the defendant
claims that the trial court in Weinberg found a witness
to be competent, despite the expert psychiatrist’s con-
clusion to the contrary, after listening to the witness’
proffered testimony. He argues that this result demon-
strates that a trial court’s firsthand examination of a
proposed witness is procedurally necessary before rul-
ing on his or her competency and that failing to make
such an examination constitutes an abuse of discretion.
The trial court in Weinberg determined that a witness
suffering from ‘‘ ‘severe chronic paranoid schizophre-
nia’ ’’ was, nevertheless, competent to testify at trial.
Id., 241–42. Notably, the court disregarded an expert
psychiatrist’s opinion that the witness was incompe-
tent, finding instead that she was capable of reliably
and accurately describing the crime scene where the
defendant had taken her. Id., 242–44. Our Supreme
Court held that the trial court did not abuse its discre-
tion in reaching a different determination from the
expert witness and, consequently, admitting the con-
tested testimony. Id., 244. Although the trial court dis-
agreed with the expert’s ultimate conclusion regarding
the witness’ competency, it focused on the ‘‘substance
of [the expert’s] testimony,’’ which revealed that the
witness’ ‘‘cognitive memory was intact, her factual
reports tended to be accurate, and she understood the
moral duty of truthfulness.’’ Id. Moreover, despite his
ultimate conclusion, the expert noted that the witness’
testimony might be credible if it were independently
corroborated by other evidence, which the trial court
found to be the case. Id. Under those facts, our Supreme
Court found that the court correctly determined that
the witness met the minimum credibility requirement
necessary to testify at trial. Id.
We find the defendant’s reliance on Weinberg to be
misplaced. As an initial matter, the trial court in Wein-
berg did not rely solely on its own contemporaneous
observation of the witness in making its competency
ruling. Rather, as our Supreme Court explicitly stated,
the trial court focused on the substance of the expert’s
testimony in determining that the witness could remem-
ber relevant events and recount them in a reliable and
truthful manner. Id. Put another way, the trial court
credited the expert’s description of the witness’ mental
illness but reached its own determination as to whether
the witness met the minimum credibility requirement
necessary to be deemed competent. Although the court
did listen to the witness’ proffered testimony, it did
so to determine whether her factual account could be
independently corroborated, and not to appraise the
degree of her mental illness. Moreover, the court’s deci-
sion to evaluate the witness’ testimony for evidence of
independent corroboration came at the expert’s sugges-
tion. See id. (‘‘[expert’s] conclusion that the witness
was not competent to testify was . . . based upon his
clinical diagnosis of [the witness’] mental illness,
although he acknowledged that her testimony, if inde-
pendently corroborated, might be credible’’). Stated
plainly, the trial court in Weinberg relied on the sub-
stance of the expert psychiatrist’s testimony, and not
its own contemporaneous examination, to determine
the witness’ capacity for truthfulness, cognitive mem-
ory, and ability to receive correct sensory impressions.
As such, Weinberg does not stand for the proposition
that a trial court necessarily abuses its discretion by
declining to conduct an in-person examination of a pro-
posed witness.
Second, Weinberg only underscores the discretionary
power of trial courts to make competency rulings. In
that case, the expert’s conclusion that the witness was
incompetent to testify was based on his clinical diagno-
sis that the witness suffered from severe chronic para-
noid schizophrenia. Id., 242. Despite that diagnosis, the
trial court reached the legal determination, on the basis
of that expert’s account, that the witness was able to
provide reliable and truthful testimony, which is a mat-
ter within the discretion of the trial court. Id., 242–44.
Although some federal courts have noted that ‘‘it is the
better practice for the trial judge either to question the
witness [personally] or to be present when the examina-
tion is conducted by counsel’’; Shuler v. Wainwright,
491 F.2d 1213, 1224 (5th Cir. 1974); see also Henderson
v. United States, 218 F.2d 14, 17 (6th Cir.), cert. denied,
349 U.S. 920, 75 S. Ct. 660, 99 L. Ed. 1253 (1955); we
have found no relevant authority holding that a trial
judge is mandated to do so. So long as there is no ‘‘ ‘clear
case of abuse’ ’’ or ‘‘ ‘some error in law,’ ’’ a reviewing
court will not disturb the trial judge’s ruling. State v.
Weinberg, supra, 215 Conn. 244.
We conclude that, under the factual circumstances
presented in this case, the trial court was not required
to personally observe the victim before ruling on his
competency to testify. Here, the court chose to credit
the substance of Dr. Berger’s testimony, which demon-
strated the victim’s incapacity to accurately and reliably
recount past events and agreed with her ultimate con-
clusion regarding the victim’s ability to testify.14 Like-
wise, Dr. Berger did not testify, as did the expert in
Weinberg, that the victim might be found credible if his
testimony were independently corroborated. Accord-
ingly, the court did not err in deciding that a brief, in-
person observation of the victim was not necessary in
light of the detailed testimony of his treating psychia-
trist who had interacted with the victim nearly every day
for a period of two years.15 For the foregoing reasons,
we conclude that the court did not abuse its discretion
in declining to contemporaneously observe the victim
before ruling on his competency to testify at trial.
B
In the alternative, the defendant contends that the
trial court abused its discretion by denying his motion
to have the victim examined by an independent expert
witness before ruling on the victim’s competency to
testify. He argues that Dr. Berger was not specifically
‘‘trained to perform competency examinations’’ and that
her role as the victim’s treating psychiatrist presented
a conflict of interest. We are not persuaded.
It is well established that a ‘‘court may order a mental
examination of a witness if the court is in doubt as to
the witness’s mental competency . . . but the court is
not bound to order such an examination in all cases or
merely because it is requested by a party.’’ (Citation
omitted.) E. Prescott, supra, § 6.3.6, p. 329; see also
State v. Vars, 154 Conn. 255, 268, 224 A.2d 744 (1966).
The decision to order a psychiatric examination is a
matter within the discretion of the trial judge. State v.
Canady, supra, 187 Conn. 291–92.
Our Supreme Court has repeatedly held that a trial
court’s refusal to order a psychiatric examination does
not constitute an abuse of discretion in the absence of
a compelling reason to do so. See id., 292; see also State
v. Vars, supra, 154 Conn. 268; State v. Morant, 242 Conn.
666, 679–85, 701 A.2d 1 (1997). In the present case, the
victim had already undergone a psychiatric assessment
by a board certified psychiatrist who, having personally
observed him nearly every day for two years prior to
the hearing, was uniquely positioned to assist the court
in evaluating the victim’s testimonial capacity.16 The
defendant cites no authority holding that a court is
required to order a second evaluation, by a second
expert, simply because a party disagrees with the first
expert or because the expert had previously treated the
proposed witness. See State v. Boulay, 189 Conn. 106,
109, 454 A.2d 724 (1983) (expert psychologist testifying
at competency evaluation had treated potential witness
for about two years). After hearing Dr. Berger’s testi-
mony, the court reasonably could have determined that
ordering a second evaluation would have been redun-
dant and a waste of judicial resources. In light of the
foregoing, we conclude that the court did not abuse its
discretion by denying the defendant’s motion.
II
We now turn to the defendant’s claim that the trial
court violated his due process right to present witness
testimony by failing to sanction the prosecution for
engaging in witness intimidation. Specifically, the
defendant contends that the department, through threat
of administrative and occupational discipline, attempted
to intimidate current and former Whiting employees
from testifying at his trial. Relying on a theory of vicari-
ous liability first annunciated in Demers v. State, 209
Conn. 143, 153, 547 A.2d 28 (1988), he argues that the
department was acting as an investigative arm of the
state and, therefore, that its misconduct is attributable
to the prosecution. We are not persuaded.
The following additional facts are relevant to this
claim. On March 6, 2019, the defendant filed a motion
entitled ‘‘Defendant’s Motion for Sanctions Regarding
Intimidation of Witnesses.’’17 The defendant’s argument
centered on disciplinary action taken by the department
against two Whiting employees, Sarah Lukman and Lori
Hubbard, whom the defendant intended to call as char-
acter witnesses. Both Lukman and Hubbard previously
had appeared at a sentencing proceeding on behalf of
Gregory Giantonio, another Whiting employee accused
of similar misconduct toward the victim. At that pro-
ceeding, Lukman and Hubbard allegedly exposed the
victim’s confidential and protected medical information
while giving their statements to the court. As a result,
the department placed Lukman and Hubbard on admin-
istrative leave, pending investigation, for allegedly vio-
lating the Health Insurance Portability and Accountabil-
ity Act of 1996 (HIPAA), 42 U.S.C. § 1320d et seq.18 The
defendant argued that the administrative actions, and
the threat of future actions, ‘‘chilled’’ those witnesses
from testifying fully on his behalf. As a remedy, the
defendant sought either a dismissal of the charges or
a ‘‘delay of one year in his trial . . . [to] permit correc-
tive action to be taken by the state so as to assure
potential witnesses that there is nothing to be feared
by offering truthful testimony.’’
On March 13 and 18, 2019, the court heard evidence
on the defendant’s motion for sanctions. The defense
first called Lukman to testify as to her fear of appearing
as a character witness for the defendant. Lukman, how-
ever, invoked her fifth amendment right against self-
incrimination and provided little substantive testimony
at the hearing.19
Next, defense counsel called Hubbard to testify as
to her fear of appearing as a witness for the defense.
Hubbard testified that she was placed on administrative
leave after Giantonio’s sentencing hearing, that she was
currently under investigation for divulging confidential
medical information, and that she was afraid of ‘‘losing
[her] job’’ should she testify on the defendant’s behalf.
Hubbard also indicated, however, that she appeared at
Giantonio’s sentencing voluntarily, and that she would
appear at the defendant’s trial if subpoenaed. She fur-
ther explained that she would testify at trial if ordered to
by the court with the understanding that her testimony
would not violate any confidentiality laws.
Defense counsel then called Harold Hempstead, the
lead forensic treatment specialist at the department and
union delegate for forensic nurses and staff. Hempstead
testified that he had concerns that union members
would face administrative discipline should they testify
on the defendant’s behalf or on behalf of others facing
similar charges. Specifically, he stated that ‘‘[union
members] don’t truly understand the legalities of every-
thing that’s going on, I don’t want to violate HIPAA in
any way, shape, or form due to the fact that I could be,
you know, placed on administrative leave and possibly
fired . . . .’’ He also explained that he was personally
afraid of appearing as a defense witness, but that his
fear would be alleviated should the victim’s conserva-
tors sign a release permitting him to testify without
violating HIPAA.
Finally, defense counsel called Steven Beaupre, the
human resources manager and Director of Labor Rela-
tions for the department. Beaupre testified that his
office is responsible for investigating and conducting
fact-finding for alleged work rule and policy violations,
including Lukman’s and Hubbard’s alleged HIPAA viola-
tions. He confirmed that the disciplinary actions taken
against Lukman and Hubbard stemmed from the unau-
thorized disclosure of the victim’s confidential medical
information during Giantonio’s sentencing proceeding.
As to the relationship between the department and
law enforcement, Beaupre testified that he had played
no role in disciplining the defendant for misconduct or
in referring the defendant or any other employee to the
state’s attorney’s office. He could not say, however,
whether any other department administrators had
played a role in the criminal investigation and prosecu-
tion of those individuals. Beaupre clarified that there
may be situations, generally, where department investi-
gations may be referred to law enforcement agencies.
Additionally, Beaupre confirmed that he had never been
contacted by any law enforcement agency regarding
Lukman’s and Hubbard’s appearances at Giantonio’s
sentencing.
Beaupre also testified that the victim’s conservator
had signed releases permitting the defendant’s wit-
nesses to speak with defense counsel and to testify in
court without violating HIPAA. Beaupre asserted that
such witnesses would not face administrative action
by the department, and that the releases would apply
retroactively to Lukman’s and Hubbard’s statements
at Giantonio’s sentencing, effectively nullifying their
administrative sanctions.
On March 18, 2019, the court heard argument on the
defendant’s motion. The defendant contended that the
department had been acting as an investigatory arm of
the state and, therefore, any misconduct on the part of
the department in regard to Lukman, Hubbard, or any
other potential defense witness, should be imputed to
the prosecution. The defendant also modified his request
for sanctions, abandoning his request for a one year
delay and seeking instead either a complete dismissal
of the charges or an order precluding the prosecution
from cross-examining its character witnesses on char-
acter-related issues. In response, the state contended
that the defendant had failed to demonstrate an agency
relationship between the department and the prosecu-
tion.
The following day, the court issued an oral ruling
denying the defendant’s motion for sanctions. Relying
on Stevenson v. Commissioner of Correction, 165 Conn.
App. 355, 366, 139 A.3d 718, cert. denied, 322 Conn. 903,
138 A.3d 933 (2016), the court held that the department
‘‘is not an investigatory agency of the prosecution’’ and
found that, ‘‘even if they were for this particular case,
any disciplinary action taken by [the department] . . .
was a result of . . . violations of HIPAA . . . and not
. . . retaliatory claims.’’ The court also noted that each
of the defense witnesses who testified indicated that
they would appear as character witnesses at the defen-
dant’s trial ‘‘if they’re subpoenaed to do so and under
conditions that would not violate HIPAA requirements.’’
Having set forth the court’s ruling, we turn to the
appropriate standard of review and governing legal prin-
ciples. ‘‘A claim that the state has intimidated a defense
witness raises serious questions that go to the core of
the constitutional right to a fair trial. A defendant’s right
to offer the testimony of witnesses is protected by the
due process clause of the fourteenth amendment. . . .
The prosecution violates this important right when it
engages in conduct or makes comments aimed at dis-
couraging defense witnesses from testifying freely. . . .
Substantial government interference with a defense wit-
ness’ free and unhampered choice to testify violates
due process rights of the defendant.’’ (Citations omitted;
internal quotation marks omitted.) State v. O’Brien, 29
Conn. App. 724, 731–32, 618 A.2d 50 (1992), cert. denied,
225 Conn. 902, 621 A.2d 285 (1993).
‘‘When information comes to a court’s attention that
suggests that there has been government interference
with a defense witness’ free and unhampered choice
to testify, the due administration of justice may require
further inquiry by the trial court. Nonetheless, [a] trial
[court] is given great latitude in ensuring that a criminal
trial be conducted in a manner that approaches, as
nearly as possible, an atmosphere of perfect impartiality
which is so much to be desired in a judicial proceeding.
. . . Given the fact that the trial [court] is not simply
a referee presiding over a forensic contest, but is a
minister of justice, [it] is, for that purpose, vested with
the authority to exercise a reasonable discretion in the
conduct of a trial.’’ (Internal quotation marks omitted.)
Id., 733.
‘‘The trial court possesses the inherent power to
impose sanctions on litigants in cases before it, includ-
ing dismissing the case, both to compel observance of
its rules and to bring an end to continuing violations
of those rules. . . . This power rests within the discre-
tion of the trial court and will not be disturbed on
review unless there is an abuse of discretion.’’ (Citation
omitted; internal quotation marks omitted.) Emerick v.
Glastonbury, 177 Conn. App. 701, 702–703, 173 A.3d 28
(2017), cert. denied, 327 Conn. 994, 175 A.3d 1245
(2018). With these principles in mind, we turn to the
defendant’s arguments on appeal.
A
The defendant’s claim contains two interrelated
parts. First, he argues that the administrative actions
taken against Lukman and Hubbard were intended to
‘‘chill’’ potential witnesses from participating in future
prosecutions involving mistreatment of the victim. Sec-
ond, he argues that an agency relationship existed
between the department and the prosecution, such that
any misconduct committed by the department is attrib-
utable to the state.20 We are not persuaded.
As an initial matter, the record lacks any evidence
indicating that the department sought to intimidate
defense witnesses through administrative discipline.
The trial court clearly found in its oral decision that any
action taken by the department against its employees
resulted solely from the employees’ HIPAA violations.
That factual finding is fully supported by the record.21
The record also indicates that the victim’s conserva-
tor had signed releases permitting defense witnesses
to testify regarding the victim’s health status. With those
releases secured, Beaupre confirmed that the depart-
ment would not take any action against witnesses who
testified regarding the victim. Moreover, Lukman and
Hubbard were retroactively absolved from administra-
tive penalties resulting from their statements at Gianto-
nio’s sentencing. As such, the defendant’s witnesses
were not under threat of administrative discipline at
the time of the evidentiary hearing. Further, as the court
noted, Hubbard was not included on the defendant’s
witness list until March, 2019, well after the department
placed her on administrative leave. Accordingly, the
argument that the department sought to intimidate wit-
nesses from testifying at the defendant’s trial is specula-
tive and unsupported by the evidence in the record.
Additionally, the defendant has failed to demonstrate
that an agency relationship existed between the depart-
ment and the prosecution. It is true that, in the context
of Brady22 violations, our Supreme Court has held that
prosecutorial misconduct extends to state agencies act-
ing on the prosecution’s behalf.23 Demers v. State, supra,
209 Conn. 153; State v. Guerrera, 331 Conn. 628, 647–48,
206 A.3d 160 (2019). Therefore, where an agency works
under the prosecution’s direction on a given investiga-
tion, its conduct is fairly attributable to the state. State
v. Guerrera, supra, 647–48. ‘‘Nonetheless, [misconduct]
on the part of persons employed by a different office
of the government does not in all instances warrant the
imputation of [misconduct] to the prosecutor, for the
imposition of an unlimited duty on a prosecutor to
inquire of other offices not working with the prosecu-
tor’s office on the case in question would inappropri-
ately require us to adopt a monolithic view of govern-
ment that would condemn the prosecution of criminal
cases to a state of paralysis.’’ (Internal quotation marks
omitted.) Stevenson v. Commissioner of Correction,
supra, 165 Conn. App. 366.
‘‘[O]ur determination of whether to deem an [agency]
to be an arm of the prosecution . . . does not follow
[a] broad, categorical approach . . . . Instead, the pro-
priety of imputing [misconduct] to the prosecution is
determined by examining the specific circumstances of
the [agency] alleged to be an arm of the prosecutor.
. . . It does not turn on the status of the [agency] . . .
such as . . . law enforcement . . . prosecut[ion] or
other government official[s]. In other words, the rele-
vant inquiry is what the [agency] did, not wh[at] the
[agency] is.’’ (Citations omitted; emphasis in original;
internal quotation marks omitted.) Id., 367.
In support of his argument, the defendant points to
the fact that department employees had given state-
ments to outside law enforcement regarding the victim’s
alleged abuse. The defendant also notes that Whiting
staff had provided law enforcement with the video foot-
age from the victim’s room. Our Supreme Court has
determined, however, that even when an agency under-
takes some actions at the direction of the prosecution,
it is not necessarily deemed to be an arm of the prosecu-
tion when undertaking other actions. See State v. Guer-
rera, supra, 331 Conn. 648–49 (holding that Department
of Correction was investigative arm of state for percent-
age of codefendant’s phone recordings reviewed at
prosecution’s direction, but not for percentage of
recordings stored solely for its internal security and
administrative purposes).
In order to show that the department acted as an arm
of the prosecution, the defendant must demonstrate a
relationship between the prosecution and the specific
adverse employment actions taken against Hubbard and
Lukman. The record does not reflect that Beaupre, who
was primarily responsible for the internal investigation
against the two employees, had any contact with any
law enforcement body during the pendency of the inves-
tigation.
The record indicates that the department’s adminis-
trative investigations serve a function distinct from
criminal investigations, namely, to examine and sanc-
tion potential work rule violations and other policy
violations. Thus, the purpose of internal investigations
is to ensure that employees follow workplace regula-
tions, not to be an auxiliary fact finder for law enforce-
ment.24 See Stevenson v. Commissioner of Corrections,
supra, 165 Conn. App. 368 (holding that Department of
Correction was not investigative arm of state where
exculpatory documents at issue were produced for
internal, administrative purposes, not for assisting pros-
ecutor’s investigation). Accordingly, the record does
not support the conclusion that the administrative
actions taken against Lukman and Hubbard were con-
ducted at the prosecution’s direction. As stated pre-
viously, the investigation was performed solely to ascer-
tain whether the employees violated HIPAA by disclosing
protected medical information at Giantonio’s sentenc-
ing hearing. The trial court correctly determined that
the department was not acting as an arm of the state
and, therefore, did not abuse its discretion by denying
the defendant’s motion for sanctions.
B
Even if we assume that the trial court improperly
denied the defendant’s motion for sanctions, the defen-
dant is unable to demonstrate that the denial violated
his due process right to present witness testimony.
‘‘[W]hether a trial court’s . . . restriction of a defen-
dant’s or defense [witness’] testimony in a criminal trial
deprives a defendant of his [due process] right to pres-
ent a defense is a question that must be resolved on a
case by case basis. . . . The primary consideration in
determining whether a trial court’s ruling violated a
defendant’s right to present a defense is the centrality
of the excluded evidence to the claim or claims raised
by the defendant at trial.’’ (Internal quotation marks
omitted.) State v. Andrews, 313 Conn. 266, 276, 96 A.3d
1199 (2014). ‘‘The constitutional right to present a
defense does not include the right to introduce any and
all evidence claimed to support it.’’ State v. Shabazz,
supra, 246 Conn. 752 n.4.
Our careful review of the record leads us to conclude
that the trial court’s denial of the defendant’s motion
for sanctions did not deprive the defendant of the oppor-
tunity to offer witness testimony or to present a com-
plete defense. As an initial matter, there is no evidence
that any witness testimony was actually excluded.
Although Hubbard and Hempstead initially expressed
reluctance to serve as defense witnesses, they both
appeared and testified at the defendant’s trial.25 The
record does not demonstrate that their testimony was
curtailed in any way by threat of administrative disci-
pline.
Moreover, Hubbard and Hempstead were only two
of several character witnesses who appeared in support
of the defendant at trial.26 Our Supreme Court has held
that the exclusion of cumulative evidence does not vio-
late a criminal defendant’s constitutional right to pres-
ent a defense. State v. Dehaney, 261 Conn. 336, 366–67,
803 A.2d 267 (2002), cert. denied, 537 U.S. 1217, 123 S.
Ct. 1318, 154 L. Ed. 2d 1070 (2003). In addition, this
court has held that ‘‘[a] defendant may not successfully
prevail on a claim of a violation of his right to present
a defense if . . . he adequately has been permitted to
present the defense by different means.’’ (Internal quo-
tation marks omitted.) State v. Papineau, 182 Conn.
App. 756, 781, 190 A.3d 913, cert. denied, 330 Conn. 916,
193 A.3d 1212 (2018). Even assuming that Hubbard and
Hempstead were discouraged from testifying freely,
their unencumbered testimony would merely have reit-
erated what was already before the jury. The defendant
does not argue that his other character witnesses, many
of whom are current or former Whiting employees, were
intimidated from providing full and complete testimony.
Accordingly, the defendant was not denied the ability
to offer witness testimony attesting to his reputation for
peacefulness and nonviolence. We conclude, therefore,
that the trial court’s refusal to grant the defendant’s
motion for sanctions did not give rise to a constitutional
violation.
III
The defendant’s final claim is that the prosecution
engaged in impropriety by informing the trial court of
potential fifth amendment concerns regarding a wit-
ness’ anticipated testimony during a pretrial evidentiary
hearing. The defendant argues that raising those con-
cerns intimidated the witness and caused her to invoke
her fifth amendment privilege against self-incrimina-
tion, effectively precluding her from testifying further
on his behalf. The defendant also contends that the trial
court ratified the prosecutor’s misconduct by granting
the witness a ‘‘blanket fifth amendment privilege,’’
thereby denying him his right to present a defense and
compel witnesses in his favor. We reject both argu-
ments.
The following additional facts and procedural history
are relevant to our disposition of this claim. During the
March 13, 2019 hearing on the defendant’s motion for
sanctions, defense counsel called Lukman to testify as
to the disciplinary action the department took against
her, as well as the defendant’s reputation for nonvio-
lence. Before defense counsel began his direct examina-
tion, the prosecutor informed the court that there was
a possibility that Lukman could incriminate herself if
she were to testify at the hearing. Specifically, the prose-
cutor stated that defense counsel ‘‘filed an appendix
to his motion, which involves [a Federal Bureau of
Investigation (FBI)] report, 302 report, which indicates
an investigator from the FBI who spoke with Ms. Luk-
man and detailed the discussions he had with Ms. Luk-
man during [this] investigation. . . . I believe that
there are statements in there that could potentially be
incriminating against Ms. Lukman, and . . . the court
should provide her with an advisement as she should
have a right to an attorney prior to making a decision
as to whether she testifies.’’
Defense counsel responded that the state previously
had determined not to prosecute Lukman and that the
prosecutor’s warning was an attempt to procure the
unavailability of the witness. Defense counsel then
moved for the trial court to grant Lukman use immu-
nity27 and to sanction the state for attempting to intimi-
date Lukman with the threat of prosecution. The prose-
cutor asserted that the state did not intend to prosecute
Lukman for simply testifying, but stressed that, because
the FBI report could contain potentially incriminating
information, she should speak with a lawyer before
deciding whether to testify. After reviewing the FBI
report, the court agreed with the prosecutor, and pro-
vided Lukman with an opportunity to consult counsel
before proceeding as a witness.
When the hearing resumed on March 18, 2019, Luk-
man appeared with her counsel, Jeffrey Kestenband.
Attorney Kestenband filed a motion to quash defense
counsel’s subpoena for his client and stated that Luk-
man intended to invoke her fifth amendment right
against self-incrimination ‘‘as to, pretty much, any sub-
stantive question’’ she was asked. Defense counsel
objected, claiming that Lukman could not legally assert
a ‘‘blanket’’ fifth amendment protection. The trial court
sustained the objection, stating, ‘‘We can call [Lukman]
to testify . . . . We’ll listen to the questions and [if
there are] questions on the grounds of the fifth amend-
ment privilege . . . then we’ll take it up.’’
Lukman subsequently took the stand and proceeded
to answer some of defense counsel’s questions. After-
ward, Attorney Kestenband objected to a series of
defense counsel’s questions, effectively invoking Luk-
man’s fifth amendment privilege on her behalf. Defense
counsel objected in turn, claiming that the fifth amend-
ment right against self-incrimination is a personal right
that cannot be asserted by counsel. The court agreed
with defense counsel, stating that if Lukman wished to
invoke the right, she would have to do so herself. The
court indicated, however, that it would call a recess if
and when Attorney Kestenband wished to advise Luk-
man regarding self-incrimination concerns. Irrespective
of the trial court’s offer, Attorney Kestenband continued
to object to defense counsel’s questions on fifth amend-
ment grounds.
After a brief recess, the court ruled that it would
allow Lukman to invoke her right not to testify against
herself. Citing State v. Ayuso, 105 Conn. App. 305, 313,
937 A.2d 1211, cert. denied, 286 Conn. 911, 944 A.2d
983 (2008), the court stated that the mere possibility
that Lukman could be prosecuted for her testimony
rendered her fifth amendment claim valid. The court
then asked Lukman explicitly whether she intended to
invoke her fifth amendment right as to defense coun-
sel’s subsequent question. Lukman answered, ‘‘yes.
Based on the advice of counsel.’’ Afterward, the court
permitted defense counsel to state his remaining ques-
tions on the record. The court again asked Lukman
whether she would invoke her fifth amendment privi-
lege as to each question defense counsel listed, to which
Lukman answered, ‘‘yes.’’
Finally, the court clarified that its ruling explicitly
pertained to the pretrial motion for sanctions and that
it was too early to determine whether the ruling would
extend to the criminal trial. The court stated that
defense counsel should reclaim the issue if he sought
to have Lukman testify at trial.
A
The defendant first contends that the prosecutor
engaged in impropriety by alerting the court as to the
potential fifth amendment concerns with Lukman’s tes-
timony, which he claims constituted a veiled threat
meant to discourage Lukman from testifying and effec-
tively denied him his due process right to a fair trial.
We disagree.
‘‘It is well established that [i]n analyzing claims of
prosecutorial [impropriety], we engage in a two step
analytical process. The two steps are separate and dis-
tinct: (1) whether [impropriety] occurred in the first
instance; and (2) whether that [impropriety] deprived
a defendant of his due process right to a fair trial.
. . . [W]hen a defendant raises on appeal a claim that
improper remarks by the prosecutor deprived the defen-
dant of his constitutional right to a fair trial, the burden
is on the defendant to show . . . that the remarks were
improper. . . . If we conclude that prosecutorial
impropriety occurred, we then decide whether the
defendant was deprived of his due process right to a
fair trial . . . .’’ (Citation omitted; internal quotation
marks omitted.) State v. Williams, 200 Conn. App. 427,
432–33, 238 A.3d 797, cert. denied, 335 Conn. 974, 240
A.3d 676 (2020).
After carefully considering the record in this appeal,
we conclude that the prosecutor did not engage in
impropriety. There is no evidence that the prosecutor
undertook his warning with the intention to chill Luk-
man from testifying. In fact, the prosecutor repeatedly
stated that, based on known evidence, the state did not
intend to pursue criminal charges against Lukman.
The prosecutor was concerned, however, that any
testimony surrounding the FBI report could reveal addi-
tional information supporting state or federal charges
against Lukman. Although Lukman was only proffered
to testify as to the defendant’s character, the uncertain
nature of cross-examination and direct examination left
open the possibility that Lukman could make incrimi-
nating statements regarding the contents of the report.
Moreover, Lukman originally appeared without coun-
sel, had received no grant of immunity from the state
or federal government, and may not have been aware
of the report’s existence at the time of the pretrial
hearing. The prosecutor alerted the court as to these
concerns and recommended that Lukman be advised
of her rights and given the opportunity to seek counsel
before testifying. The defendant cites no relevant
authority holding that such actions are improper. We
conclude, therefore, that the prosecutor did not engage
in impropriety by bringing Lukman’s potential for self-
incrimination to the attention of the court. Because we
conclude that no impropriety occurred, we need not
consider whether the prosecutor’s warning deprived
the defendant of his due process right to a fair trial.
B
The defendant’s final argument is that the court
denied his right to present a defense and compel witness
testimony in his favor by improperly granting Lukman
a blanket fifth amendment privilege during the pretrial
hearing on the defendant’s motion for sanctions. Specif-
ically, the defendant claims that the court’s ‘‘decision
to grant Lukman a blanket fifth amendment privilege
against testifying . . . secured Lukman’s unavailabil-
ity’’ at trial. We disagree.
This court has repeatedly held that ‘‘[a] defendant
may not successfully prevail on a claim of a violation
of his right to present a defense if he has failed to take
steps to exercise the right or if he adequately has been
permitted to present the defense by different means.’’
(Internal quotation marks omitted.) State v. Leniart,
198 Conn. App. 591, 603–604, 233 A.3d 1183, cert. denied,
335 Conn. 971, 240 A.3d 1055 (2020); see also State v.
Porfil, 191 Conn. App. 494, 522, 215 A.3d 161 (2019),
appeal dismissed, 338 Conn. 792, 259 A.3d 1127 (2021).
Although the court permitted Lukman to invoke her
fifth amendment privilege during the pretrial hearing,
it explicitly limited its ruling to the defendant’s motion
for sanctions. When asked specifically whether its rul-
ing extended to trial, the court clarified that its ruling
was limited to the motion for sanctions and did not
extend beyond that. In addition, the court informed
the defendant that he would have an opportunity to
‘‘reclaim the issue’’ as to whether Lukman could invoke
a valid fifth amendment privilege at the start of trial. The
defendant made no effort to call Lukman as a witness
at trial.28 It is clear from the record that Lukman’s
absence at trial was due to the defendant’s failure to
call her, and not the court’s limited ruling at the pretrial
hearing. In light of the foregoing, the defendant has
‘‘ ‘failed to take steps to exercise’ ’’ his right to present
a defense. State v. Leniart, supra, 198 Conn. App. 603–
604. Accordingly, he cannot demonstrate that his right
was violated by the trial court’s ruling.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The forensic head nurse supervises the nursing staff in a given unit. As
forensic head nurse, the defendant was responsible for supervising the
administration of medication and patient care, executing behavioral treat-
ment plans and treatment plans, responding to and documenting patient
behavior, and fulfilling various other managerial and administrative duties.
2
The board is comprised of six members appointed by the governor. It
is charged with conducting biennial hearings to determine whether a given
patient may be transferred out of a maximum security setting or whether
the individual remains mentally ill and potentially dangerous to others, and,
consequently, must continue to remain at Whiting. Since 2005, the board
has made successive determinations that the victim remains a threat to
himself and those around him. At the time of trial, the victim’s most recent
recommitment was in 2018.
3
Under those orders, two staff members were required to physically
observe the victim at all times and document his behavior in writing every
fifteen minutes. Two-to-one observation is the most intense level of observa-
tion at Whiting.
4
The camera in the victim’s room was installed to relieve stress on the
victim and reduce physical contact between the victim and Whiting staff.
It had been operative for at least a decade prior to the March, 2017 incidents
that led to the defendant’s prosecution. Notably, the camera only captured
video footage, which was admitted into evidence by the state at trial. No
audio recording equipment was included with the camera when it was
initially installed and it was not installed thereafter. Consequently, the secu-
rity footage taken from the victim’s room does not include sound.
5
Whiting hospital policy mandated that nursing staff submit a detailed
report of each use of physical restraint imposed on a patient under that
staff member’s care. As mentioned above, nursing staff was also required
to document the victim’s behavior every fifteen minutes. See footnote 3 of
this opinion.
6
The record is unclear as to how exactly the defendant’s behavior was
first brought to the attention of the department’s administration.
7
The investigation led to criminal charges and adverse employment
actions against several department employees involved in the victim’s treat-
ment. The defendant was suspended from his position at Whiting, pending
administrative review. He retired from the department before it held a
hearing to review his conduct.
8
In his brief to this court, the defendant also argues that the ‘‘the trial
court denied [his right to confront witnesses against him] when it granted
the state’s motion [in limine] and precluded the testimony of [the victim]
. . . .’’ He has failed, however, to analyze this particular constitutional claim
or support it with relevant authority. ‘‘It is well established that the appellate
courts of this state are not obligated to consider issues that are not adequately
briefed. . . . Whe[n] an issue is merely mentioned, but not briefed beyond
a bare assertion of the claim, it is deemed to have been waived. . . . In
addition, mere conclusory assertions regarding a claim, with no mention of
relevant authority and minimal or no citations from the record, will not
suffice. [F]or this court judiciously and efficiently to consider claims of
error raised on appeal . . . the parties must clearly and fully set forth their
arguments in their briefs. We do not reverse the judgment of a trial court
on the basis of challenges to its rulings that have not been adequately briefed
. . . . The parties may not merely cite a legal principle without analyzing
the relationship between the facts of the case and the law cited.’’ (Citation
omitted; internal quotation marks omitted.) Manere v. Collins, 200 Conn.
App. 356, 358–59 n.1, 241 A.3d 133 (2020). Because we conclude that the
defendant’s confrontation clause claim was not adequately briefed, we
decline to review it.
9
Specifically, the state moved to exclude the victim’s testimony on the
basis of both § 6-3 (a) of the Connecticut Code of Evidence, which provides
that ‘‘[a] person may not testify if the court finds the person incapable of
understanding the duty to tell the truth, or if the person refuses to testify
truthfully,’’ and § 6-3 (b) of the Connecticut Code of Evidence, which pro-
vides that ‘‘[a] person may not testify if the court finds the person incapable
of receiving correct sensory impressions, or of remembering such impres-
sions, or of expressing himself or herself concerning the matter so as to be
understood by the trier of fact either directly or through interpretation by
one who can understand the person.’’
10
The victim was transferred out of Unit 6 after allegations against the
defendant, and others, were brought to the attention of Whiting administra-
tion. Dr. Berger subsequently assumed responsibility as the victim’s treating
psychiatrist.
11
Dr. Berger testified that the victim’s tardive dyskinesia stems from anti-
psychotic medication treatment over a long period of time.
12
Although questions of witness competency and questions involving a
criminal defendant’s competency to stand trial both require the trial court
to determine whether an individual is ‘‘competent,’’ we note that ‘‘[t]he
mental or emotional state of a person sufficient to be competent to ‘testify’
as a witness should be sharply distinguished from the mental or emotional
state of an accused sufficient to be competent ‘to stand trial.’ ’’ (Emphasis
added.) E. Prescott, Tait’s Handbook of Connecticut Evidence (6th Ed. 2019)
§ 6.3.3, p. 326; see also General Statutes § 54-56d (f). General Statutes § 54-
56d (a) clarifies in relevant part that a criminal defendant is not competent
to stand trial ‘‘if [he] is unable to understand the proceedings against him
. . . or to assist in his . . . own defense.’’ The ‘‘due process clause of
the fourteenth amendment to the United States constitution prohibits the
criminal prosecution of a defendant who is not competent to stand trial
. . . [and] demands that, once a defendant’s competence to stand trial has
been sufficiently called into question, the trial court must order an adequate
hearing on his competence to stand trial . . . .’’ (Citation omitted; internal
quotation marks omitted.) State v. Dort, 315 Conn. 151, 162, 106 A.3d 277
(2014). In contrast, a person with mental or psychiatric problems serving
as a witness should be ‘‘judged on the standard whether the person has
useful information to impart to the trier of fact as a witness, not on the
basis that he or she is incapable in some other role.’’ E. Prescott, supra,
§ 6.3.3, p. 326. Accordingly, ‘‘a person who is found not competent to stand
trial when charged with a crime may still be competent to testify at someone
else’s trial.’’ Id.
13
Additionally, Dr. Berger testified that the victim’s speech is often unintel-
ligible due to involuntary oral movements caused by tardive dyskinesia,
and, thus, he is largely incapable of expressing himself in a manner ‘‘so as
to be understood by the trier of fact . . . .’’ Conn. Code Evid. § 6-3 (b).
Even Dr. Berger, who converses with the victim almost every day, testified
that she could only understand 40 to 50 percent of what he says.
14
Additionally, we note that this case does not present a situation in
which the expert psychiatrist was appointed just prior to trial. In such
circumstances, an expert may only meet with a proposed witness on a
few, limited occasions before offering an opinion regarding the witness’
competency. Conclusions drawn from such cursory examinations may be
less valuable than those produced by an expert’s continued observation of
a witness over time. Stated otherwise, an expert witness’ limited examination
may be no more revealing than a trial court’s personal voir dire of the
witness in question. By contrast, in this case, the expert’s testimony drew
on her extensive, firsthand experience treating the victim over the course
of multiple years. Accordingly, she was able to provide insight into the
victim’s cognitive and communicative state that could not have been ascer-
tained through the trial court’s limited examination.
15
We also note that the previous attempt to question the victim in a
judicial setting had been unsuccessful. The 2017 probate hearing was a
contemporaneous, in-person proceeding that resulted in the victim hiding
from the probate judge and refusing to answer any of the judge’s questions.
As Dr. Berger also made clear, the victim’s condition continues to deterio-
rate.
16
That Dr. Berger was not specifically ‘‘trained to perform competency
examinations’’ is of no issue. As the defendant himself has emphasized,
competency evaluations are judicial determinations within the discretion
of the trial court. State v. Canady, supra, 187 Conn. 291–92.
17
The defendant also filed a ‘‘Supplemental Memorandum in Support of
[his] Motion for Sanctions Addressing the Scope of State Action’’ on March
14, 2019.
18
HIPAA created national standards to protect sensitive patient health
information from being disclosed without the patient’s consent or knowl-
edge. ‘‘[HIPAA’s] Privacy Rule forbids an organization subject to its require-
ments (a covered entity) from using or disclosing an individual’s health
information (protected health information) except as mandated or permitted
by its provisions . . . . Covered entities generally include health plans,
health care clearinghouses and health care providers such as physicians,
hospitals and [health maintenance organizations] . . . . Protected health
information encompasses any individually identifiable health information
held or transmitted by a covered entity in any form or medium, whether
electronic, paper or oral.’’ (Internal quotation marks omitted.) Byrne v.
Avery Center for Obstetrics and Gynecology, P.C., 314 Conn. 433, 449 n.15,
102 A.3d 32 (2014).
19
The circumstances surrounding Lukman’s fifth amendment invocation
will be addressed more fully in part III of this opinion.
20
The defendant argues, at alternative times, that either the department
was as an agent of the state, such that its misconduct is attributable to the
prosecution, or, more directly, that the prosecution explicitly directed the
department to intimidate defense witnesses. We address both arguments
together.
21
It is well established that ‘‘the trial court is given great deference in its
fact-finding function because it is in the unique [position] to view the evi-
dence presented in a totality of circumstances . . . including its observa-
tions of the demeanor and conduct of the witnesses and parties . . . .’’
(Internal quotation marks omitted.) State v. Lipscomb, 258 Conn. 68, 74,
779 A.2d 88 (2001). As such, ‘‘[a] trial court’s findings of fact are not to be
overturned on appeal unless they are clearly erroneous,’’ meaning that ‘‘there
is no evidence in the record to support it . . . or when although there is
evidence to support it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been committed.’’
(Internal quotation marks omitted.) State v. Krijger, 313 Conn. 434, 446, 97
A.3d 946 (2014).
Beaupre testified that the department’s disciplinary measures were
intended to sanction employees for divulging protected, personal health
information, and not to discourage witnesses from testifying at future trials.
Stated otherwise, Beaupre provided a reasonable explanation as to why
the department placed Lukman and Hubbard on administrative leave: the
department concluded that both employees violated HIPAA’s privacy rule.
In fact, the witnesses who feared adverse employment actions testified to
understanding that any potential sanctions would result from disclosing
confidential health information, and not from merely appearing in support
of their colleagues. Indeed, both Hubbard and Hempstead stated that they
would testify at the defendant’s trial if assured they could do so without
breaching confidentiality laws.
22
Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
23
Specifically, our Supreme Court has held that the prosecution’s duty
to disclose favorable evidence to the defense extends to its investigative
agencies. Demers v. State, supra, 209 Conn. 153; State v. Guerrera, 331
Conn. 628, 647, 206 A.3d 160 (2019). Accordingly, the prosecutor has a duty
to learn of exculpatory evidence in possession of an entity that is acting as
his agent or arm, and the agent’s or arm’s knowledge of exculpatory evidence
may be imputed to the prosecutor. State v. Guerrera, supra, 647–48. Neither
party has identified, nor have we found, any authority where this doctrine
has been applied outside of the Brady context. Nevertheless, the defendant
contends that the administrative discipline taken against ‘‘identifiable and
foreseeable defense witnesses’’ for testifying at Giantonio’s sentencing pro-
ceeding constituted a violation of due process akin to a Brady violation.
Therefore, the defendant’s claim that alleged witness intimidation on the
part of a government agency may be attributed to the prosecution represents
a novel theory of vicarious liability.
24
Underscoring this point, Beaupre clarified that administrative investiga-
tions, unlike criminal investigations, are not constrained by certain constitu-
tional safeguards, such as the fifth amendment privilege against self-incrimi-
nation.
25
As will be explored further in part III of this opinion, defense counsel
chose not to recall Lukman at the criminal trial, despite the trial court’s
express invitation to do so. As such, the defendant has failed to show
that the trial court’s denial of his motion for sanctions deprived him of a
single witness.
26
In addition to Hubbard and Hempstead, defense counsel called thirteen
other witnesses to testify as to Whiting hospital policy as well as the defen-
dant’s reputation for peacefulness and nonviolence.
27
See General Statutes § 54-47a.
28
During the pretrial hearing, defense counsel stated that Lukman’s testi-
mony would be offered to describe the defendant’s ‘‘reputation for nonvio-
lence.’’ As we previously have noted, the defendant called several witnesses
to testify at trial as to his peacefulness within the community. See footnote
26 of this opinion. We conclude, therefore, that the defendant ‘‘ ‘adequately
has been permitted to present [his] defense by different means.’ ’’ State v.
Leniart, supra, 198 Conn. App. 604.