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STATE OF CONNECTICUT v. SOLOMAN MAYE
(AC 21814)
Dranginis, Bishop and Healey, Js.
Argued March 21—officially released July 9, 2002
(Appeal from Superior Court, judicial district of New
Haven, geographical area number eight, Hudock, J.)
E. Gregory Cerritelli,
with whom, on the brief, were
Glenn M. Conway
and Tara L. Knight, for the appel-
lant (defendant).
Julia K. Mahoney,
deputy assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, and Kim McCabe, assistant state’s
attorney, for the appellee (state).
Opinion
DRANGINIS, J. The defendant, Soloman Maye,
appeals from the judgment of the trial court revoking
his probation and imposing a four year sentence. On
appeal, the defendant claims that the court (1) deprived
him of his federal and state constitutional rights to
cross-examine and confront witnesses in denying his
request to conduct an in camera inspection of a witness’
psychiatric records and (2) improperly found that he
violated a condition of his probation on the basis of
allegations that were not contained in the violation of
probation warrant in derogation of his due process
rights. We affirm the judgment of the trial court.
The following facts are relevant to our resolution of
this appeal. On January 28, 1998, the trial court sen-
tenced the defendant to seven years incarceration, exe-
cution suspended, with four years of probation,
following the defendant’s guilty plea to the crime of
possession of a narcotic substance in violation of Gen-
eral Statutes § 21-279 (a). As conditions of his proba-
tion, the defendant agreed, in pertinent part, not to
violate any criminal laws, to report to his probation
officer as directed, to permit his probation officer to
visit him when needed and to keep the probation officer
informed of his whereabouts.
Over two years later, during the afternoon of May
30, 2000, a woman, while driving a vehicle and looking
visibly upset, motioned for Officer Karen Roberts of
the New Haven police department, who was driving
behind her in a marked police vehicle, to pull over to
the side of the road. The woman, who identified herself
as Passion Harris, told Roberts that the defendant, her
boyfriend and the father of her two children, had hit
her a few moments earlier. Roberts noticed that Harris’
neck was discolored and that her shirt was torn. Harris
elaborated that she was sitting in her car about to pull
out of a driveway when the defendant grabbed the steer-
ing wheel. As she drove away, Harris claimed that the
defendant continued to hold onto the steering wheel,
punched her and ripped her shirt. Harris then lost con-
trol of the car and drove into a parked car.
Roberts went to 233 Howard Street in New Haven,
where the incident occurred, and observed the damaged
parked car. She also observed the damage to Harris’
vehicle. Harris later explained to another police officer,
Joe Dease, that the defendant attempted to choke her.
Dease also observed red marks on Harris’ neck. Two
other New Haven police officers, including Dease,
found the defendant that afternoon. The defendant was
arrested and charged with reckless endangerment in
the first degree and assault in the third degree.
The defendant’s probation officer, Brenda Westberry,
subsequently prepared a violation of probation warrant.
In the warrant, Westberry alleged that she had notified
the defendant to report to her office on May 2, 2000,
and on May 30, 2000, and that the defendant had failed
to appear on both occasions. The warrant further
described the incident with Harris and stated that the
defendant ‘‘is considered to be in violation of his proba-
tion based on his noncompliance with the following:
‘Do not violate any law.’ ’’
A probation revocation hearing ensued. The trial
court found that the defendant had violated his proba-
tion by failing to report to his probation officer on May
2 and May 30, 2000, and by violating the law with respect
to the altercation with Harris. The trial court committed
the defendant to the custody of the commissioner of
correction for a period of four years. Additional facts
will be set forth where necessary to the issues raised.
I
The defendant first claims that the court deprived
him of his constitutional right to confront and cross-
examine witnesses when it denied his request to con-
duct an in camera inspection of Harris’ psychiatric
records.
1
We are not persuaded.
The following additional facts are relevant to our
resolution of this issue. Prior to the hearing, defense
counsel obtained a letter written by Harris to the defen-
dant detailing that she suffered from mental illness.
Defense counsel also came into possession of a letter
from Catholic Family Services stating that Harris
receives treatment for depression. During the hearing,
but before the state called Harris as a witness, defense
counsel sought a continuance of the trial until he could
obtain Harris’ psychiatric records and further requested
that the trial court conduct an in camera inspection of
those psychiatric records. The trial court denied the
defendant’s motion at that time.
During direct examination, Harris acknowledged that
she took medication for her mental illness. Harris fur-
ther testified that the medications helped to ‘‘clarify
things and [make] things calmer,’’ but that they did not
interfere with her ability to testify truthfully. Harris also
stated that she would not consent to an inspection of
her mental health records.
The defendant introduced into evidence during cross-
examination a letter written by Harris to him and also
a document prepared by a therapist at Catholic Family
Services. In the letter, Harris wrote that she attended
counseling and that she might be ‘‘crazy.’’ The document
prepared by a social worker at Catholic Family Services
provided that Harris sought treatment for and suffered
from ‘‘major depressive disorder,’’ and that bipolar dis-
order was ‘‘rule[d] out.’’ The defendant proceeded to
question Harris about her mental illness and the treat-
ment she had sought. Harris admitted that she had anger
management problems and that she had not taken her
medication on May 30, the date of the incident with the
defendant. Harris further testified that when she did
not take her medication, she sometimes became angry
and might yell, scream and lie. Moreover, Harris stated
that a physician at the Hospital of Saint Raphael had
told her that she might have schizophrenia, but that he
never followed through with any tests or definite
diagnosis.
At the conclusion of his cross-examination of Harris,
the defendant renewed his motion for the trial court to
conduct an in camera inspection of Harris’ mental
health psychiatric records on the ground that they might
contain information related to Harris’ ability to tell the
truth and to perceive the events of May 30, 2000, accu-
rately. Particularly, the defendant argued that the in
camera review could reveal the effect of the medication
on Harris’ ability to tell the truth. In response, the state
contended that Harris had been completely forthcoming
with defense counsel, had answered all of his questions
and that ‘‘[t]his is a specific attempt to circumvent her
testimony and have it stricken, because when those
records come in, Your Honor, she is not going to agree
to your doing an in camera inspection . . . .’’ The trial
court then ordered briefs on the issue.
After reviewing the parties’ briefs, the court denied
the defendant’s request for an in camera inspection of
Harris’ mental health records. In denying the request,
the court stated that it found Harris’ ‘‘testimony to be
lucid; I found her testimony to have—to consist of very
few inconsistencies with . . . the observations made
by the initial police officer; her observations of the
victim at the time; her observations of the damage to
the victim’s car, as well as to the other car at the alleged
scene of this event; her observations as to the red marks
around the neck, which were not testified to by the
victim, but the victim did explain how those red marks
most likely took place . . . . I am also aware of Ms.
Harris’ potential conflict in this matter. I’m aware that
she has a child by the defendant, if not two children.
. . . Based on her testimony, it’s obvious that there has
been a long-standing relationship . . . . She indicated
on the record that she has gone to a number of hospitals
. . . that she has had a number of . . . theoretical
diagnoses . . . that she was supposed to take medica-
tion, that during this time she did not take medication,
and that when she doesn’t take medication she’s prone
to anger and that, on occasion, she lies.
‘‘I find, however, that her testimony being corrobo-
rated, as it is, not only by officers at the scene but by
the admissions that the defendant himself gave to the
police officers. I am impressed most of all by the amount
of corroboration independent of her testimony that
exists . . . . There is no indication, in my mind, that
her ability to recollect the facts of this occasion accu-
rately has been affected in any way by any theoretical
medical illness.’’ The trial court further noted that the
letter from Catholic Family Services, which the defen-
dant entered into evidence, revealed that Harris has
‘‘issues with depression, mood swings, anxiety and
anger. . . . That, to me, does not translate into some-
one who cannot accurately depict the events of this
occasion. In short, I feel the defense has failed to meet
the threshold. . . . I am singularly impressed with the
lack of inconsistencies. . . . I’m not going to review
[the records] at this time unless Ms. Harris wishes me to
review them but that’s—that’s the ruling of this court.’’
On appeal, the defendant claims that the trial court’s
denial of his request to conduct an in camera inspection
of Harris’ psychiatric records deprived him of his consti-
tutional right of confrontation because Harris’ ‘‘ability
to observe the events of May 30, 2000, and whether or
not she had fabricated the allegations’’ was central to
this case. We are not persuaded and conclude that the
trial court properly ruled that the defendant had not
made the required preliminary showing to warrant an
in camera inspection of mental health records.
‘‘The trial court is vested, in the first instance, with the
responsibility of resolving the inherent tension between
the broad privilege that our state law affords to a wit-
ness concerning the confidentiality of his or her psychi-
atric communications and records, including those
pertaining to the diagnosis, prognosis or treatment for
alcohol abuse or alcoholism; see General Statutes (Rev.
to 1991) §§ 17-155bb (b) (recodified at General Statutes
§ 17a-630 [c]), 52-146d, 52-146e; and a criminal defen-
dant’s constitutional right to reveal to the [fact finder]
facts about a witness’ mental condition that may reason-
ably affect that witness’ credibility. . . . The defen-
dant’s right of cross-examination does not allow him to
discredit and impeach in whatever way, and to whatever
extent, the defense might wish. . . . Before a defen-
dant may have access to privileged records that he
believes contain information that would allow him to
impeach a witness’ ability to comprehend, know or
correctly relate the truth, [he] must make a preliminary
showing that there is a reasonable ground to believe
that the failure to produce the records would likely
impair his right to impeach the witness.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Joyner
, 225 Conn. 450, 478, 625 A.2d 791 (1993). ‘‘If in
the trial court’s judgment the defendant successfully
makes this showing, the state must then obtain the
witness’ permission for the court to inspect the records
in camera. A witness’ refusal to consent to such an in
camera inspection entitles the defendant to have the
witness’ testimony stricken.’’ (Internal quotation marks
omitted.) State v. Howard, 221 Conn. 447, 457, 604 A.2d
1294 (1992). We review the trial court’s determination
that the defendant failed to meet his preliminary show-
ing and its subsequent refusal to conduct an in camera
inspection under an abuse of discretion standard. State
v. Richardson, 204 Conn. 654, 663, 529 A.2d 1236 (1987).
We note at the outset that a history of mental illness
does not automatically impugn a witness’ ability to tes-
tify truthfully and to relay events accurately. Moreover,
the existence of a psychiatric disorder does not ‘‘auto-
matically [make] a witness fair game for disclosure of
psychiatric records to a criminal defendant.’’ State v.
Joyner
, supra, 225 Conn. 479.
During cross-examination, Harris testified at length
about her mental illness, the treatment sought and the
effect that the medication had on her behavior. The
trial court granted the defendant complete latitude to
question Harris about these topics, particularly regard-
ing her veracity and anger management issues when
not taking the medications.
Significantly, and central to the trial court’s determi-
nation here, Harris’ allegations against the defendant
were all corroborated by the observations made by the
police officers involved in the case. The police officers
noticed that Harris had red marks on her neck, that
her shirt was torn and that her vehicle was damaged.
Moreover, the defendant’s own admission to police offi-
cers that he engaged in a physical altercation with Har-
ris also substantiated Harris’ version of events.
In addition, the trial court noted, and we agree, that
the document from Catholic Family Services that the
defendant presented as exhibit D indicated that Harris
‘‘has issues with depression, mood swings, anxiety and
anger,’’ but that ‘‘does not translate into someone who
cannot accurately depict the events of this occasion.’’
While the defendant thoroughly questioned Harris, he
neither subpoenaed Harris’ counselor at Catholic Fam-
ily Services, whose identity was known to him, nor
offered any other medical or other testimony to estab-
lish a connection between Harris’ depression and her
reliability as a witness. See id.
We, therefore, conclude that the court properly
refused to conduct the requested in camera inspection
of Harris’ mental health records. On the basis of the
record before us, we conclude that the defendant has
failed to make a preliminary showing that there is a
reasonable ground to believe that the failure to produce
those records likely impaired his right to impeach
the witness.
2
II
The defendant next claims that court improperly
found that his failure to report to his probation officer
constituted a violation of a condition of his probation
because he lacked sufficient notice that his failure to
report formed a basis of his probation revocation hear-
ing. Specifically, the defendant claims that the violation
of probation arrest warrant did not provide adequate
notice that his failure to report to his probation officer
formed one of the grounds for his probation revocation
hearing.
3
We are not persuaded.
The following additional facts are pertinent to this
issue. In the defendant’s violation of probation arrest
warrant, it was alleged that, after receiving notice to
appear on both May 2 and May 30, 2000, the defendant
failed to report to his probation officer.
4
Moreover, the
warrant provided that as a result of the altercation with
Harris on May 30, 2000, the defendant was arrested for
assault in the third degree and reckless endangerment
in the first degree. Accordingly, the warrant stated that
the defendant ‘‘is considered to be in violation of his
probation based on his noncompliance with the follow-
ing: ‘Do not violate any law.’ ’’
At the commencement of the hearing, the defendant
argued that he lacked notice that his failure to appear
on May 2 and May 30, 2000, formed one of the grounds
for the potential revocation of his probation. Specifi-
cally, the defendant contended that because the warrant
provided that he is considered to be in violation of his
probation due to his noncompliance with the proscrip-
tion against violating any law, he was unaware that his
failure to appear formed the basis of the proceedings
as well. The trial court replied that the warrant provided
sufficient notice to the defendant in that it explicitly
enumerated his failure to report to his probation officer
on two occasions.
In announcing its finding that the defendant violated
conditions of his probation, the court stated: ‘‘[The
defendant] was not to violate any law; he was to report
to his probation officer. And I consider those two issues
to be the subject of this violation. Now, I know the
defense claims otherwise, or at least has during the
course of the hearing, that because of the wording ‘Do
not violate any law,’ I should only consider whether or
not there was some kind of altercation between Ms.
Harris and the defendant. I indicated before, and I’ll
indicate again, I think the defendant is on fair notice
in that it is also alleged in the warrant that he failed
on two occasions to report to his probation officer. So
I think that merely because of the words ‘do not violate
any law,’ I think the—the substance of the arrest war-
rant application rules here and there is clearly more
than one violation; there’s actually, technically, I sup-
pose, three violations. I find that the—to a fair prepon-
derance of the evidence that the defendant has violated
the terms of his probation’’ on all three grounds.
We note at the outset that the defendant does not
challenge the court’s conclusion that his actions toward
Harris constituted a violation of the condition of his
probation that he not violate any law. Therefore,
because the defendant does not contest the court’s find-
ing that he violated his probation by committing a crime,
it is unnecessary to address the defendant’s argument
that he was not afforded adequate notice that he faced
probation revocation on the alternative ground of his
failure to report. See State v. Samuel, 57 Conn. App.
64, 71, 747 A.2d 21, cert. denied, 253 Conn. 909, 753
A.2d 942 (2000). We will, nonetheless, take this opportu-
nity to resolve this issue.
‘‘In Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct.
2593, 33 L. Ed. 2d 484 (1972), the United States Supreme
Court held that the minimum requirements of due pro-
cess include ‘(a) written notice of the claimed violations
of [probation] . . . .’ ’’ State v. Strickland, 42 Conn.
App. 768, 781, 682 A.2d 521 (1996), rev’d on other
grounds, 243 Conn. 339, 703 A.2d 109 (1997). General
Statutes § 53a-32 (a) further provides in relevant part:
‘‘At such [probation violation] hearing the defendant
shall be informed of the manner in which such defen-
dant is alleged to have violated the conditions of such
defendant’s probation or conditional discharge . . . .’’
The defendant claims that the statement contained
in the warrant that ‘‘the offender is considered to be
in violation of his probation based on his noncompli-
ance with the following: ‘Do not violate any law,’ ’’ did
not sufficiently notify him that his failure to report
also formed a basis for the revocation of his probation.
We disagree.
A thorough review of the record reveals that the
defendant possessed sufficient notice that his probation
revocation hearing was based on both his noncompli-
ance with the provision that he ‘‘not violate any law’’
and his failure to report to his probation officer on May
2 and May 30, 2000. The violation of probation arrest
warrant set forth at the outset the various conditions
of his probation to which the defendant agreed to
adhere to, including that he should not violate any law
and that he must report as his probation officer directs.
Moreover, in addition to detailing the incident involving
Harris, the arrest warrant explicitly described the occa-
sions when the defendant was directed to report to his
probation officer and subsequently failed to appear.
The defendant did not request a bill of particulars to
clarify the basis of the probation revocation proceeding.
Moreover, at the commencement of the hearing, the
state read into the record the arrest warrant and stated
that it was proceeding on the grounds that the defendant
failed to report to his probation officer and violated the
law based on the incident with Harris. In fact, during
the hearing the defendant’s probation officer testified
regarding the defendant’s failure to report on May 2
and May 30, 2000.
Under those circumstances, we conclude that the
defendant received adequate notice regarding all of the
grounds on which he was ultimately found to have
violated his probation. See State v. Pierce, 64 Conn.
App. 208, 214–15, 779 A.2d 233 (2001); State v. Repetti,
60 Conn. App. 614, 617–18, 760 A.2d 964, cert. denied,
255 Conn. 923, 763 A.2d 1041 (2000). When we read the
warrant in its entirety, and not in isolated parts, it is
clear that the defendant was on notice that his failure
to report to his probation officer was part of the basis
for the probation revocation proceeding. Further, the
hearing was based solely on the allegations contained
in the warrant.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant asserts his rights under the sixth amendment to the United
States constitution and article first, § 8, of the constitution of Connecticut.
Because the defendant did not separately address his state constitutional
claim, we resolve this issue only on federal constitutional grounds.
2
In so concluding, we mention the state’s concern that, given Harris’
relationship with the defendant and the fact that the defendant is the father
of Harris’ children, Harris would have used the issue of the in camera
inspection as a means to ‘‘circumvent testifying in this case.’’ Had the trial
court permitted an in camera review of Harris’ records, Harris stated that
she would have refused to consent to the inspection, thereby resulting in
the striking of the testimony of this principle witness.
3
The defendant phrases this argument as the trial court ‘‘improperly found
that he violated the terms of his probation because the basis for finding
him in violation was beyond the four corners of the arrest warrant.’’
4
The warrant additionally detailed several prior occasions when the defen-
dant failed to report to his probation officer and neglected to inform the
probation officer of his address. In fact, on September 14, 1998, the defendant
was arrested for violation of probation based on his failure to report and,
on November 8, 1999, was found in violation of his probation. The trial
court, however, did not revoke the defendant’s probation at that time.
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