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STATE OF CONNECTICUT v. NORMAN P.*

(AC 37947)

Sheldon, Prescott and Flynn, Js.

Argued October 6—officially released December 6, 2016

(Appeal from Superior Court, judicial district of

Hartford, Kwak, J.)

Marina L. Green, assigned counsel, with whom were

Emily Graner Sexton, assigned counsel, and, on the

brief, Michael S. Taylor, assigned counsel, forthe appellant (defendant).

James A. Killen, senior assistant state’s attorney,

with whom, on the brief, were Gail P. Hardy, state’s

attorney, and Anne Mahoney, senior assistant state’s

attorney, for the appellee (state).
Opinion

PRESCOTT, J. The defendant, Norman P., appeals

from the judgment of conviction, rendered after a jury

trial, of three counts of sexual assault in a spousal

relationship in violation of General Statutes § 53a-70b,

one count of assault of an elderly person in the second

degree in violation of General Statutes § 53a-60b, and

one count of assault of an elderly person in the third

degree in violation of General Statutes § 53a-61a. On

appeal, the defendant claims, among other things, that

the trial court improperly (1) refused to admit into

evidence his full written statement to the police after

portions of the statement had been introduced by the

state, and (2) refused to mark for identification the

complainant’s privileged records from Interval House,

an organization that provides counseling and other services to domestic violence victims, as well as declined

to conduct an in camera inspection of these records.1

We agree that the court improperly excluded the defendant’s complete statement to the police, and, accordingly, we reverse the judgment of conviction and

remand the case for a new trial. Because one of the

remaining evidentiary issues is likely to arise again on

remand, we address that claim as well.2 To that end,

we agree with the defendant that the court improperly

refused to mark the Interval House records for identification and improperly refused to conduct an in camera

review of the Interval House records afterthe defendant

made the requisite threshold showing pursuant to State

v. Esposito, 192 Conn. 166, 179–80, 471 A.2d 949 (1984).

Given the evidence presented at trial, the jury reasonably could have found the following facts. On the evening of Thursday, August 2, 2012, the defendant was at

home with the complainant, who was the defendant’s

sixty-one year old wife, and their twenty year old son,

B.P., who had a strained relationship with the defendant. A dispute over the operation of the air conditioning system arose between the defendant and B.P. A

verbal argument between the two, in which the complainant interceded on B.P.’s behalf, soon escalated into

a physical altercation. Eventually, in an effort to avoid

calling the police and possibly having the two men

arrested, the complainant told B.P. that it would be

best if he left the house and went to his grandmother’s

residence. B.P. then left.

Thereafter, the defendant approached the complainant and, using his closed fist, punched her in the chest

with such force that it took her breath away. The complainant punched the defendant back, injuring her

shoulderin the process, and the defendant began hitting

and jabbing the complainant repeatedly in the midsection with the television remote control, causing the

complainant severe bruising. The complainant eventually retreated to the upstairs bedroom where she usually

slept, away from the master bedroom where the defen-
dant usually slept.

Several minutes later, the defendant entered the complainant’s bedroom where she was lying down on the

bed, pulled the covers off of her, and stated that he

was ‘‘going to show [her] something.’’ He then ripped

off the nightgown she was wearing, prompting the complainant to attempt to push and kick him away from

her. The complainant was unsuccessful in her efforts,

however, because the defendant was physically

stronger than her, one of her shoulders had no strength

as a result of it having been injured earlier, and the

defendant was restraining her other uninjured hand.

The defendant then began to insert his finger into the

complainant’s rectum, and the complainant pleaded

with him to stop because he was hurting her. The defendantrefused and threatened thatthe more the complainant protested, the harder he would continue the

penetration. The complainant soon realized that the

defendant was penetrating her with more than one finger and that he was also curling his fingers inside of

her, like a hook, pulling at her. At some point during

the assault, the complainant saw that she was emitting

blood and feces onto the bedsheet.

After a period of time, the defendant directed the

complainant to go to the bathroom to wash herself

off. He then walked her into the bathroom and to the

bathtub, all the while refusing to remove his finger from

her rectum. Filling the tub with water and directing

the complainant to get in, the defendant proceeded to

remove his own clothing and enter the tub with her.

The defendant then pulled the complainant onto his lap

and began to manipulate a bar of soap into her rectum,

although the complainant did not know this at the time

because she could not see what he was doing behind

her. Consumed with pain, the complainant kept trying

to remove the defendant’s hand from her rectum, but

was unable to overcome his strength. Eventually, the

complainant complained that her stomach was cramping and that she needed to move her bowels, so the

defendant released her and allowed her to sit on the

toilet. In addition to emitting blood and feces, the complainant expelled the bar of soap into the toilet, thereby

realizing for the first time that he had pushed the soap

inside of her.

Afterward, the defendant led the complainant back

into the complainant’s bedroom, and the complainant,

overcome with exhaustion, could not attempt to fight

him any longer. The defendant proceeded to lean the

complainant over the bed and penetrate her rectum

with his penis and fingers. After the defendant stopped

the assault, he fell asleep on the bed, and the complainant lay crying on the floor.

Eventually, near daylight, the complainant got up,

got dressed, and began wandering on foot around the

streets in her neighborhood. The complainant
attempted to telephone a friend of hers and a friend of

the defendant, but neither answered, so the complainant called the defendant’s brother, and told him about

the assault. At some point while she was walking, the

complainant felt ‘‘a gush [of wetness] come down in

[her] pants’’ and, after returning to the house, discovered that she had had an involuntary bowel movement

that was mixed with blood and ‘‘white stuff,’’ which

she assumed was from the bar of soap. She cleaned

herself off and lay down on the couch in the basement

until it was time for her to go to work in the afternoon.

Although the complainant had difficulty walking

because of her injuries, she went to work that Friday,

Saturday, and Sunday because she did not want to be

alone in the house with the defendant. On Monday evening, the complainant confided in her close friend and

coworker about the assault, and accepted the friend’s

invitation to stay the night at her house. The next day,

on Tuesday, the complainant saw her primary care physician, told him of her injuries, and informed him that

they had been the result of an assault by the defendant.

The doctor diagnosed the complainant with a rectal

tear and ultimately referred her to Interval House for

counseling.

On Thursday, almost one week after the assault, the

complainant took her car to a shop to be serviced.

While at the service shop, the complainant experienced

another involuntary bowel movement and decided at

that pointthat she would report the assault to the police.

The complainant then drove straight from the service

shop to the police station, where the authorities took

her statement and, thereafter, accompanied her to her

home to collect evidence. When the defendant arrived

home from work that day, he encountered the police

outside his house. Upon request, he followed a police

detective to the police station. During an interview with

the detective, he gave a sworn written statement concerning the events that occurred on August 2 and 3,

2012. The following day, the defendant was arrested

pursuant to an arrest warrant.

Prior to trial, on December 5, 2014, the state filed a

substitute long form information, charging the defendant with four counts of sexual assault in a spousal

relationship in violation of § 53a-70b, one count of criminal attempt to commit sexual assault in a spousal relationship in violation of General Statutes §§ 53a-49 and

53a-70b, one count of second degree assault of an

elderly person in violation of § 53a-60b, and one count

of third degree assault of an elderly person in violation

of § 53a-61a. During his jury trial, the defendant testified

that the sexual encounter with his spouse had been

consensual, and that herrectal injuries had been caused

by the defendant using his fingers to retrieve a small

piece of soap that had accidentally slipped inside of

her when the defendant was lubricating her anal area
for intercourse. Following the trial, the defendant was

convicted on all but two of the counts.3 He was sentenced to a total effective term of thirty-six years of

imprisonment, execution suspended after twenty-four

years, with ten years of probation. This appeal followed.

Additional facts and procedural history will be set forth

as necessary.

I

We turn first to the defendant’s claim that the court

improperly refused to admit the defendant’s complete

sworn statement to the police after other portions of

the statement had been introduced by the state during

trial. Specifically, the defendant argues that the court

misinterpreted § 1-5 (b) of the Connecticut Code of

Evidence and that, pursuant to § 1-5 (b), the entire statement should have been admitted in order for the jury

to understand the context of those portions that were

previously introduced by the state during its crossexamination of the defendant. In response, the state

argues that the court properly ruled that the police

statement constituted nothing more than a prior consistent and self-serving hearsay statement offered by the

defendant to boost his favorable testimony through repetition. The state further asserts that ‘‘nothing in the

defendant’s police statement provided any ‘context’

essential to a proper understanding of the inaccuracies

and omissions pointed out by the state on cross-examination and fully conceded by the defendant on crossexamination, with an explanation.’’ We agree with

the defendant.

The following additional facts and procedural history

are relevant to this claim. During cross-examination of

the defendant, the prosecutor questioned him at length

about what was included and what was not included

in his signed statement to the police, dated August 9,

2012. The prosecutor asked the defendant to verify that

he made several declarations about the events that

occurred on August 2 and 3, 2012, in his signed police

statement, including the type of sexual intercourse he

engaged in with the complainant, when he used the bar

of soap, the state of the bedroom where the alleged

assault occurred, whether the complainant ever told

him she was in pain, when he next saw the complainant

after the alleged assault, and what occurred during his

altercation with B.P. on the night in question. Although

the defendant confirmed for the jury that he had, in

fact, told the police many of these details, he disputed

the accuracy of other assertions contained in the written account. For example, when the prosecutor asked

him if ‘‘you signed the statement that said that after the

vaginal intercourse, you went to the bathroom to look

for a bar of soap,’’ the defendant replied: ‘‘I told the

police it wasn’t a bar. A piece of soap, I told the police.

. . . [The police officer] . . . said in America it is

called a bar.’’ Similarly, when the prosecutor asked if
‘‘you told the police that you had penile/vaginal sex

with your wife,’’ the defendant attested that ‘‘[t]hat was

a mischaracterization’’ and that ‘‘[t]hose words were

inserted by the police. Those are not my words.’’

When the prosecutor questioned the defendant about

details concerning the alleged assault that he had testified to at trial, but were not contained in his signed

statement, the defendant repeatedly made clear that

those specifics were missing from his statement

because he answered only the precise questions that

the police interviewer asked of him and did not offer

extra details that went beyond the limited scope of each

inquiry. For instance, in one exchange, the following

colloquy took place between the prosecutor and the

defendant:

‘‘Q. And you never told the police that, though, did

you?

‘‘A. The police did not ask me detailed questions. It

was like giving—the question that the police officer

asked me . . . I gave them that answer.

‘‘Q. So, for the first time, you’re claiming that Monday

night into Tuesday morning you saw your wife at the

house?

‘‘A. I’m not claiming [that] for the first time.

‘‘Q. Well, sir, you didn’t tell the police on August 9th

when they came to your house at 1 o’clock in the morning that your wife had been in the house Monday night,

did you?4

‘‘A. I have only answered the question [that] the police

asked. . . .

‘‘Q. . . . [B]ut you told the police later on in the day

on August 9th after they had been to your house that

the TV had been smashed on Monday night . . . .

‘‘Q. And when you talked to that officer [at the police

station in the evening of August 9], you talked to him—

you told him that you were claiming that the TV was

damaged Monday night, but you didn’t say anything

about your wife being home on Monday night, did you?

Yes or no?

‘‘A. I didn’t—I wasn’t—as I said, the only—the only

question I answer was [what do] they call it—the question the officer asked me.’’5

Subsequently, during redirect examination,the defendant’s written police statement became the subject of

questioning once more, this time by defense counsel,

and the defendant again testified that the detective did

not transcribe the defendant’s words in the exact manner as he said them aloud. Thereafter, defense counsel

stated that he would like to offer the defendant’s police

statement as an exhibit, to which the prosecutor

objected on the ground that it was self-serving hearsay

and not an admission by a party opponent. Defense
counselresponded: ‘‘[T]his statementread in its entirety

is consistent with his trial testimony. The [state] has in

cross-examination picked out inconsistencies, claiming

that it’s inconsistent with . . . his trial testimony. And

that, for the jury to understand whether those are really

inconsistencies or not, the jury should have the whole

statement in its entirety so they can see exactly how

it flows, what he said, what it was about and the context

of it . . . .’’ Defense counsel also asked the court for

five minutes to assemble his argument and corresponding case citations, and the court agreed to take a brief

afternoon recess.

Upon returning from the court’s recess, the prosecutor asserted that our Supreme Court’s decisions in State

v. Hines, 243 Conn. 796, 709 A.2d 522 (1998), and State

v. Jackson, 257 Conn. 198, 777 A.2d 591 (2001),6 were

inapposite to defense counsel’s argument in the present

case because Hines was overturned,7 and Jackson

‘‘points out that the defendant’s statement to the police

is hearsay and . . . even when he testifies, it doesn’t

give him the right to introduce otherwise inadmissible

hearsay. It doesn’t fall within any of the recognized

exceptions.’’ The court then sustained the state’s objection, stating that ‘‘according to State v. Jackson, [supra,

198] the entire written statement is inadmissible if it’s

. . . self-serving hearsay. So, I’m going to—since

you’ve already brought out on redirect, [defense counsel], regarding your client’s prior consistent statement[s], certainly, they come in, but I’m not going to

admit the entire statement.’’

In an effort to further clarify his argument for the

court and for the record, defense counsel then stated:

‘‘[A]s I indicated in a note that the [courtroom] clerk

delivered to you during a recess, the citations that the

clerk wrote were from the Practice Book, including

. . . § 1-5 (b) of the [Connecticut] Code of Evidence

. . . in order for the jury to understand . . . what the

defendant was actually asked about and why he said

certain things and didn’t say certain things in response

to certain questions, and to understand the context of

things he did say that went into the statement, the—

the entire statement should be admitted so that the

jury will have an understanding and be able to better

evaluate the credibility of the defendant and his testimony. The statement is consistent with much of his

trial testimony, and the purported inconsistencies,

when read in the context of the statement, which

include the omissions that the state referred to, can’t

be understood unless this—the jury has the statement

before them. That’s the—that’s the purpose of offering

it, Your Honor.’’ In response, the court reiterated that

it ‘‘made [its] ruling . . . and you’ve made your record.

Thank you.’’

We begin by setting forth the applicable standard of

review and principles of law. ‘‘To the extent a trial
court’s [ruling regarding] admission of evidence is

based on an interpretation of the [Connecticut] Code

of Evidence, our standard of review is plenary. For

example, whether a challenged statement properly may

be classified as hearsay and whether a hearsay exception properly is identified are legal questions demanding

plenary review. They require determinations about

which reasonable minds may not differ; there is no

judgment call by the trial court . . . . We review the

trial court’s decision to admit evidence, if premised on

a correct view of the law, however, for an abuse of

discretion.’’ (Internal quotation marks omitted.) State

v. Miller, 121 Conn. App. 775, 780, 998 A.2d 170, cert.

denied, 298 Conn. 902, 3 A.3d 72 (2010). Because the

court’s interpretation of § 1-5 (b) of the Connecticut

Code of Evidence is being challenged, our review is

plenary.

‘‘Our cases have long held that, when one party to a

litigation or prosecution seeks to introduce admissions

that constitute only a portion of a conversation, the

opposing party may introduce other relevant portions

of the conversation, irrespective of whether they are

self-serving or hearsay.’’ (Internal quotation marks

omitted.) State v. Jackson, supra, 257 Conn. 213. This

principle is codified in § 1-5 (b) of the Connecticut Code

of Evidence, which provides: ‘‘When a statement is

introduced by a party, another party may introduce any

other part of the statement, whether or not otherwise

admissible, that the court determines, considering the

context of the first part of the statement, ought in fairness to be considered with it.’’ ‘‘The purpose of this

rule is to ensure that statements placed in evidence

are not taken out of context. . . . This purpose also

demarcates the rule’s boundaries; a party seeking to

introduce selected statements underthe rule must show

that those statements are, in fact,relevant to, and within

the context of, an opponent’s offer and, therefore, are

part of a single conversation.’’ (Citation omitted; internal quotation marks omitted.) State v. Jackson,

supra, 213.

Moreover, in State v. Hines, supra, 243 Conn. 807–

808, our Supreme Court held that ‘‘[w]hen a party has

impeached a witness with portions of a statement that

are inconsistent with his or her trial testimony, the trial

court may, in its sound discretion, admit the entire

statement for rehabilitative purposes, in order to place

the allegedly inconsistent statement into context and to

prevent the jury from being misled.’’ ‘‘[This] precludes

selective admission by one party that serves only to

distortreality and allow legal technicalities to obfuscate

the truth . . . .’’ (Internal quotation marks omitted.)

State v. Efrain M., 95 Conn. App. 590, 598, 899 A.2d 50,

cert. denied, 279 Conn. 909, 902 A.2d 1069 (2006).

Here, the defendant argues that the court misinterpreted the Connecticut Code of Evidence because the
question of whether a statement is self-serving hearsay

is irrelevant to the question of its admissibility under

§ 1-5 (b). In response, the state argues that the court

properly excluded the complete police statement

because it ‘‘constituted nothing more than a self-serving, prior consistent hearsay statement that had no relevance to offsetting the state’s claim of recent

contrivance as to certain details and, therefore, was no

more admissible than any other out-of-court statement

that a party might proffer in an effort to improperly

boost a witness’ favorable testimony through repetition.’’

Because the court is vested with the discretion to

admit or to bar the statement on fairness grounds only

after it has made the legal determination that the particular statement is subject to § 1-5 (b) of the Code of

Evidence; see State v. Miguel C., 305 Conn. 562, 572,

46 A.3d 126 (2012); we begin our analysis by reviewing

whether the court’s exclusion of the defendant’s complete police statement was based on a properinterpretation of § 1-5 (b). As previously discussed, the court was

specifically asked to rely on the Jackson decision in

overruling the state’s objection, but ultimately determined that the statement should be excluded because

‘‘according to State v. Jackson, [supra, 257 Conn. 198]

the entire written statement is inadmissible if it’s . . .

self-serving hearsay.’’ In short, there is no reasonable

basis from which the court could have concluded that

Jackson so holds. In fact, Jackson expressly stands for

the proposition that whether a statement is self-serving

hearsay is entirely irrelevantto the question ofits admissibility under § 1-5 (b) of the Connecticut Code of Evidence. Id., 213. Moreover, the court’s interpretation of

§ 1-5 (b) utterly fails to take into account that portion

of the rule that expressly states that ‘‘another party may

introduce any other part of the statement, whether or

not otherwise admissible . . . .’’ (Emphasis added.)

Therefore, we conclude that the court disregarded binding Supreme Court precedent, and failed to construe

properly § 1-5 (b) of the Connecticut Code of Evidence,

by erroneously ruling that the statement was inadmissible on the ground that it was self-serving hearsay.

Having decided that the court improperly excluded

the statement on the basis of an improperinterpretation

of the Connecticut Code of Evidence, we next turn to

whetherthat error was harmful, such that the defendant

is entitled to a new trial. ‘‘When an improper evidentiary

ruling is not constitutional in nature, the defendant

bears the burden of demonstrating that the error was

harmful. . . . [W]hether [an improper ruling] is harmless in a particular case depends upon a number of

factors, such as the importance of the witness’ testimony in the . . . case, whether the testimony was

cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness

on material points, the extent of cross-examination oth-
erwise permitted, and, of course, the overall strength

of the prosecution’s case. . . . Most importantly, we

must examine the impact of the . . . evidence on the

trier of fact and the result of the trial. . . . [T]he proper

standard for determining whether an erroneous evidentiary ruling is harmless should be whether the jury’s

verdict was substantially swayed by the error. . . .

Accordingly, a nonconstitutional error is harmless

when an appellate court has a fair assurance that the

error did not substantially affect the verdict.’’ (Internal

quotation marks omitted.) State v. Eleck, 314 Conn. 123,

129, 100 A.3d 817 (2014).

Here, the defendant asserts that the court should have

admitted the defendant’s complete written statement to

the police under § 1-5 (b) because, for two reasons, it

would have provided context for the portions of the

statement previously introduced by the state: (1) the

brevity of the statement might have caused the jury to

credit the defendant’s testimony as to why his statement

to the police was missing certain details to which he

testified at trial; and (2) the statement as a whole would

have allowed the jury to assess the defendant’s credibility without being misled by the prosecutor’s paraphrasing of certain portions of the statement, most

importantly, her argument that the defendant had ‘‘conceded that he signed under oath to that truth that he

put a bar of soap in [the complainant’s] anus . . . .’’

(Emphasis added.) In addition, the defendant argues

that the trial court’s improper exclusion of his complete

statement to the police was not harmless given the

importance of his testimony at trial, the weakness of

the state’s case against him, and the fact that the jury

did not find him guilty of two of the seven counts with

which he was charged. It is important to note that the

state failed to brief whether such error was harmless

and, instead, confined its analysis to whether the full

statement was properly excluded.

First, we agree with the defendant that the omission

of certain information from his police statement is better understood when viewed in light of the brevity of

the police statement as a whole. As previously discussed, the state chose to introduce substantive portions of the defendant’s police statement during the

defendant’s cross-examination. When the state then

repeatedly questioned him as to why he left out certain

details from the written statement that he later testified

to at trial, the defendant made clear that he only

answered the narrow questions asked of him by the

police interviewer. Although the state argues that the

complete statement should not have been admitted

because it did not contradict any of the points made

by the state during the defendant’s cross-examination,

this is not the proper standard for considering the defendant’s proffer. Rather, a statement should be admitted

in its entirety, upon the party declarant’s timely request,

to ‘‘ensure that statements placed in evidence are not
taken out of context.’’ (Internal quotation marks omitted.) State v. Jackson, supra, 257 Conn. 213. The defendant was entitled to have the jury consider that the

statement was only approximately one page in length

and that about one-half of its substance concerned incidents that occurred solely between the defendant and

B.P., in order to better assess the state’s assertion that

the defendant must be lying on the witness stand regarding certain facts because he never told the police about

those facts during his police interview. Without permitting the entire statement to be admitted to show its

brevity, the court unduly handcuffed the defendant’s

ability to argue that he had not disclosed certain details

regarding the events in question because the interview

questions were limited in scope and duration, as

reflected by the shortness of the statement.

Second, we agree with the defendant that the complete police statement was necessary to better explain

the state’s paraphrasing of a portion of the statement

concerning the nature of the bar of soap that was

involved in the alleged assault. Specifically,the prosecutor stated during closing argument: ‘‘The defendant conceded everything in his statement. He conceded that

he signed under oath to that truth that he put a bar of

soap in her anus and that he originally told the police

officer there was penile/vaginal sex, which he admitted

later on was not the truth and which she said was

not the truth.’’ During direct examination, however, the

defendant testified that he used a small piece of soap8

to lubricate the complainant’s anal area and that the

piece accidentally slipped inside of her. Similarly, the

language used in the police statement was not ‘‘a bar

of soap,’’ as the prosecutor characterized it, but a ‘‘used

bar of soap,’’ which is more consistent with the defendant’s trial testimony.(Emphasis added.) Permitting the

jury to see the actual statement would have allowed it

to better assess the defendant’s credibility, a critical

issue in the present case. Therefore, the complete police

statement was necessary ‘‘in orderto place the allegedly

inconsistent statement into context and to prevent the

jury from being misled.’’ State v. Hines, supra, 243 Conn.

808. Accordingly, we conclude that had the court properly applied § 1-5 (b) of the Connecticut Code of Evidence to the facts of the present case, it necessarily

would have led to the determination that the defendant

should have been permitted to have his complete police

statement admitted into evidence to ensure that portions of the statement previously introduced by the

state were not taken out of context.

Third, we agree with the defendant that the trial

court’s improper exclusion of his complete statement

to the police was not harmless given the importance

of the defendant’s witness testimony, the weakness of

the state’s case against the defendant, and the fact that

the jury did not find him guilty of two of the seven

counts with which he was charged. Because the defen-
dant conceded that he did have a sexual encounter

with his spouse on the night in question, but claimed

that the encounter was consensual and that her rectal

injuries had been caused accidentally, his trial testimony was critical to his defense against the state’s

charges. Moreover, because of the nature of the defendant’s version of events and the fact that the only two

witnesses to the alleged assault were the complainant

and the defendant, the outcome in this case primarily

rested on a credibility contest between the complainant

and the defendant, not on any physical evidence presented to the jury. As previously discussed, excluding

the defendant’s complete statement to the police as a

full exhibit unfairly placed the state’s selected portions

of that statement out of context and likely implicated

the defendant’s credibility in a negative way. Given the

importance to the state’s case that the defendant’s testimony be found untrustworthy, we cannot conclude that

the court’s exclusion of the statement did not have a

substantial effect on the jury’s verdict. This is especially

true in light of the fact that the jury did not find the

defendant guilty on all of the charges against him,

thereby indicating that the jury did not fully credit the

testimony of the complainant or fully discredit the testimony of the defendant. The defendant, therefore, is

entitled to a new trial.

II

Our conclusion that a new trial is warranted because

the court improperly interpreted § 1-5 of the Connecticut Code of Evidence is dispositive of the defendant’s

appeal, thus eliminating the need to address most of

the defendant’s remaining claims. Nevertheless,

because the defendant’s claim concerning the court’s

refusal to mark for identification and inspect in camera

the complainant’s Interval House records is likely to

arise again on remand, we also address it in this opinion.

See State v. Arroyo, 284 Conn. 597, 601 n.3, 935 A.2d

975 (2007).

The claim is twofold: first, the defendant claims that

the court improperly refused to mark for identification

the complainant’s privileged Interval House records;

and second, he claims that the court improperly refused

to conduct an in camera review of the Interval House

records after he made the requisite threshold showing

for the review.9

In response, the state argues that

although the court’s refusal to mark the documents

for identification was improper, the defendant did not

make an adequate showing that an in camera review

of the privileged Interval House records was warranted.

We agree with both parties that the refusal to mark the

records for identification was improper, and agree with

the defendant that an adequate showing for an in camera review of the records was made.

The following additional facts and procedural history

are relevant to these claims. When the complainant told
her doctor during her August 7, 2012 appointment that

the defendant was responsible for her injuries, the doctor recommended that she speak with someone from

Interval House. Before the start of trial, the complainant’s records from Interval House were subpoenaed,

and the organization complied with the subpoena by

providing those records, under seal, to the court clerk.

Thereafter, during trial, the doctor testified that the

complainant did, in fact, speak to an individual from

Interval House over the telephone. The doctor testified:

‘‘[A]nyone who I am concerned might be in a domestic

violence relationship or the victim of a domestic violence act, it’s my practice to get that individual on the

phone with a counselor at the time of the office visit.’’

The complainant also testified that she spoke with an

individual from Interval House, whom she categorized

as being ‘‘a sexual abuse counselor,’’ when she was at

the doctor’s office on August 7, 2012.

Because the Interval House records are privileged

as communications between a victim and a battered

woman’s or sexual assault counselor; see General Statutes § 52-146k; the defendantrequested during a pretrial

motion hearing on December 5, 2014, that the court

review the records in camera for exculpatory information that could be used to impeach the complainant.

Specifically, the defendant made the following offer of

proof: ‘‘[I]nitially, [the complainant] told the doctor, as

evidenced in these medical reports, only one thing

[about the alleged assault], that the defendant penetrated her rectum with his fingers and twisted hard.

. . . No evidence—no indication here whatsoever of

penile penetration or attempted anal sex. There [are]

four counts here of attempted or committed anal intercourse, at least two of them deal with penile penetration. . . . The allegation, Your Honor, at her deposition

and in the police reports, is that he penetrated her with

his penis and with soap on two occasions, at least, in

the bathroom and then again on the bed . . . .’’

The defendant then argued that the Interval House

records would likely indicate whether the complainant

told the Interval House employee the same version of

events that she told the doctor, i.e., the one containing

no reference to the alleged penile and soap penetration

orto the physical nonsexual assault, orthe same version

of events she told the police, i.e., the one containing

those additional allegations. Accordingly, the defendant

contended, the court should review the documents in

camera before the start of the trial to determine whether

the statement the complainant made to Interval House

necessarily conflicted either with her statement to her

doctor or with her statement to the police and, thus,

is exculpatory because it could be used to impeach her

trial testimony. The defendant argued that he needed

any impeachment material likely to be found in the

Interval House records to prepare for the trial and for

the complainant’s cross-examination.
The court ruled that the defendant did not make

the threshold showing for an in camera review, but

informed him that if he raised the issue on cross-examination of the complainant, and if ‘‘there’s something in

there which may indicate that [the complainant] may

have said something different to the Interval House that

may be impeachment material, then . . . I’ll look at

the Interval House records in camera at that time. But

right now, you haven’t shown me anything that would

indicate that there’s something in there. You’re just

guessing right now.’’ Accordingly, the court denied the

motion without prejudice. When the defendant later

renewed his motion to review the records after the

complainant’s cross-examination, the court again

denied the motion, stating that the defendant ‘‘still [had]

not made a threshold showing that there’s anything in

there other than your conjecture.’’

Subsequently, before the start of the fourth day of

trial, the defendant requested that the court mark for

identification the complainant’s Interval House records,

but the court declined to do so ‘‘because [it] never

looked at them.’’ When the defendant pointed out that

that is the exact reason why they need to be marked

for appellate review, the court replied: ‘‘No, I don’t

believe so . . . . I believe once I look at them and if

I determine that there’s nothing in there that’s impeachment material, then they need to be marked and sealed

for the Appellate Court. But I could be wrong; I don’t

know.’’ The defendant asked the court to reconsider

on the basis of case law, although he could not cite an

applicable case at that time, and again explained that

the defendant was entitled to have the records be preserved for appellate review. The courtthen stated: ‘‘Give

me the case cite, and I’ll look at it, but for now it’s not

going to be marked.’’

Thereafter, before the start of the defendant’s sentencing hearing on February 26, 2015, the defendant

highlighted for the court specific parts of his motion

for a new trial, dated December 24, 2014, and stated:

‘‘[P]aragraph eight deals with the issue of whether or

not the court should mark for identification and seal

for appellate review the Interval House records. Even

though they were not reviewed by the court in camera,

Your Honor, I believe the case law is that the court has

the obligation to do so to preserve for appellate review

in the event that an appellate court thinks that the—

or rules that the court should have conducted an in

camera review so that there can be a record for further

review. So, that was one new citation. At the time of

trial, the court asked me if I had any case law on the

obligation to seal it, and at that time, I didn’t. Although

I thought that it was an obligation, I couldn’t recite that

for the court and never brought this case to the court’s

attention during trial, and I apologize for that, but I

thought at the time of the motion for [a] new trial, this
might be a time for the court to mark these records for

purposes of preserving the record for appeal. So, I’d

ask the court to do that based on State v. Bruno [236

Conn. 514, 673 A.2d 1117 (1996)].’’

In response, the court stated: ‘‘The court has had the

opportunity to review the case, State v. Bruno, [supra,

236 Conn. 514] cited by the defendant in [his] motion

to—for a new trial. The facts in Bruno are distinguishable from our current case, mostly because the documents that were requested in Bruno were psychiatric

records, which the . . . trial court found that the

defendant had failed to make a threshold showing that

there was anything in there that would be probative.

So, in that case, the court denied the in camera review

and did not mark the psychiatric records, which the

Appellate Court did find that was an error, but it was

a harmless error. In our case, those aren’t psychiatric

records. These are records that are protected by statute,

the Interval House records.’’ On that basis, the court

again declined to mark the records for identification.

A

We first turn to whether the court improperly refused

to mark the Interval House records for identification.

We agree with both the state and the defendant that

this was improper.

Although evidentiary matters typically fall within the

court’s discretion, ‘‘[t]he right to have a proffered

exhibit marked foridentification is indeed a broad one.’’

State v. Onofrio, 179 Conn. 23, 34, 425 A.2d 560 (1979).

‘‘A trial court has the absolute duty to mark for identification and seal for possible appellate review any such

records offered, whether or not an in camera inspection

is undertaken, even in the absence of an objection to

its failure to do so from the parties.’’ State v. Bruno,

supra, 236 Conn. 538. ‘‘A trial court’s refusal to permit

documents to be marked as exhibits for identification

is ‘manifest error.’ ’’ State v. Onofrio, supra, 43.

In the case at hand, the state concedes that the court’s

refusal to mark the Interval House records for identification was error. We agree. Although the court

attempted to distinguish Bruno, we can divine no practical difference between psychiatric records, and records

of communications between a victim and a battered

woman’s or sexual assault counselor, both of which

are protected by statute. See General Statutes § 52-146d

(privileged communications between psychiatrist and

patient); General Statutes § 52-146k (privileged communications between victim and domestic violence counselor or sexual assault counselor). Thus, for the second

time in this case, the court was presented with binding

case law on an evidentiary issue and proceeded to disregard it. The court’s impropriety was ‘‘ ‘manifest error.’ ’’

State v. Onofrio, supra, 179 Conn. 43.

B
We turn next to the defendant’s claim that the court

improperly refused to inspect in camera the Interval

House records despite the fact that he had made a

sufficient preliminary showing required for such inspection. We agree with the defendant.

‘‘[I]n camera judicial review of a victim’s privileged

records currently represents the most common method

of balancing statutory privileges against the defendant’s

trial rights.’’ (Internal quotation marks omitted.) State

v. Slimskey, 257 Conn. 842, 856 n.9, 779 A.2d 723 (2001).

‘‘It is well settled in this state that before a criminal

defendant may obtain an in camera inspection of a

witness’ confidential records for purposes of impeachment, he or she must first demonstrate that there is

reasonable ground to believe that the failure to produce

the information is likely to impair the defendant’s right

of confrontation such that the witness’ direct testimony

should be stricken. State v. Esposito, [supra, 192 Conn.

179] . . . . Our assessment of the trial court’s decision

to restrict the defendant’s access to the witness’ confidential records must, however, take into account the

recognized principle that such a restriction implicates

the defendant’s constitutional right to impeach and discredit state’s witnesses.’’ (Citations omitted; internal

quotation marks omitted.) State v. Ortiz, 252 Conn. 533,

557, 747 A.2d 487 (2000). Thus, ‘‘[u]pon inspecting the

records in camera, the trial court must determine

whether the records are especially probative of the

witness’ capacity to relate the truth or to observe, recollect and narrate relevant occurrences.’’ (Internal quotation marks omitted.) State v. Howard, 221 Conn. 447,

457–58, 604 A.2d 1294 (1992).

‘‘It is well established that impeachment evidence

may be crucial to a defense, especially when the state’s

case hinges entirely upon the credibility of certain key

witnesses. . . . The rule laid out in [Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215

(1963)] requiring disclosure of exculpatory evidence

applies to materials that might well alter . . . the credibility of a crucial prosecution witness.’’ (Internal quotation marks omitted.) State v. Esposito, 235 Conn. 802,

815–16, 670 A.2d 301 (1996). Our Supreme Court has

held that ‘‘[i]nconsistencies may be shown not only by

contradictory statements but also by omissions.’’ State

v. Whelan, 200 Conn. 743, 748 n.4, 513 A.2d 86, cert.

denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598

(1986). Therefore, ‘‘[i]f a former statement fails to mention a material fact presently testified to, which it should

have been natural to mention in the prior statement, the

prior statement is sufficiently inconsistent.’’ (Internal

quotation marks omitted.) State v. Reed, 174 Conn. 287,

303, 386 A.2d 243 (1978).

To meet his or her threshold burden for obtaining in

camera review of privileged records, ‘‘the defendant

must do more than assert that the privileged records
may contain information that would be useful for the

purposes of impeaching a witness’ credibility.’’ State v.

McClelland, 113 Conn. App. 142, 160, 965 A.2d 586,

cert. denied, 291 Conn. 912, 969 A.2d 176 (2009). ‘‘The

defendant’s offer of proof should be specific and should

set forth the issue in the case to which the [confidential]

information sought will relate.’’ (Internal quotation

marks omitted.) State v. George J., 280 Conn. 551, 599,

910 A.2d 931 (2006), cert. denied, 549 U.S. 1326, 127 S.

Ct. 1919, 167 L. Ed. 2d 573 (2007). At the same time,

however, ‘‘[o]ur Supreme Court has urged trial courts

to permit the defendant a certain latitude in his [or her]

attempt to make [the preliminary showing required to

obtain an in camera inspection of confidential records]

. . . .’’ (Internal quotation marks omitted.) State v.

Rosado, 52 Conn. App. 408, 418, 726 A.2d 1177 (1999).

In the present case, we conclude that the defendant

satisfied the threshold requirement for an in camera

inspection of the complainant’s Interval House records.

Rather than merely asserting a general belief that the

privileged records might contain impeachment information to be used against the complainant during crossexamination, the defendant’s offer of proof here was

well-defined and sufficiently set forth the issue in the

case to which the information sought would relate. As

a preliminary matter, we note that the defendant

asserted to the court that, without knowing precisely

what the complainant told Interval House, the evidence

led to the conclusion that she provided some sort of

backstory concerning the alleged assault to the Interval

House individual. We, too, are persuaded that it is not

unreasonable to infer from the existence of the complainant’s subpoenaed Interval House records that the

complainant would have been asked by Interval House

to explain why she was calling and, thus, would have

provided a statement about the events that gave rise

to her referral to the organization. Accordingly, we now

turn to the crux of the defendant’s offer of proof.

Specifically, the defendant argued that the complainant’s version of events concerning the alleged assault

that she told her doctor was inconsistent from the version of events that she later told the police, because

the former statement omitted material facts that would

have been natural to mention to the health care provider. For example, the defendant cited for the court

how the complainant told her doctor that the defendant

forcefully put his fingers in her anus during the alleged

assault, but did not say that the defendant struck her

in the chest or that he forcefully inserted his penis

and a bar of soap into her anus.10 Because these two

statements were inconsistent with each other, the

defendant argued, it was reasonable to infer that a third

statement to Interval House must necessarily conflict

with at least one of them and, thus, would be exculpatory in nature because it serves as impeachment evidence for the trial testimony of the complainant, the
state’s key witness in the case.

Ultimately, the defendant’s offer of proof here was

not a mere attempt ‘‘to conduct a general fishing expedition into a witness’ privileged records.’’ (Internal quotation marks omitted.) State v. Slimskey, supra, 257 Conn.

856 n.9. Rather, the defendant laid a sufficient foundation to indicate a ‘‘ ‘reasonable ground to believe’ ’’;

State v. Ortiz, supra, 252 Conn. 557; that the Interval

House records contained material useful for impeachment of a crucial prosecution witness, the complainant,

whose credibility was a criticalfactorto obtain a conviction. We conclude, therefore, that the court improperly

ruled that the defendant had not made a sufficient showing to compel an in camera inspection of the records.

The judgment is reversed and the case is remanded

for a new trial.

In this opinion the other judges concurred.

* In accordance with our policy of protecting the privacy interests of the

victims of sexual abuse and the crime of risk of injury to a child, we decline

to use the defendant’s full name or to identify the complainant or others

through whom her identity may be ascertained. See General Statutes

§ 54-86e.

1 The defendant also makes the following additional claims on appeal: the

prosecutor violated his due process rights by referring to statements not in

evidence during cross-examination and closing argument; the court improperly refused to conduct an in camera review of confidential records from

the court support services division of the Judicial Branch; and the court

improperly admitted evidence, as prior uncharged misconduct, of two photographs of the complainant depicting prior injuries allegedly caused by the

defendant.

2 Generally speaking, if we reverse a judgment and remand the case for

a new trial, we sometimes choose to review other claims that are likely to

arise on retrial. See, e.g., State v. T.R.D., 286 Conn. 191, 195, 942 A.2d 1000

(2008). Because the Interval House records may well contain a statement

by the complainant regarding the alleged assault with which the defendant

was charged, the claims regarding these specific records are likely to arise

again on retrial. Because the remaining evidentiary claims raised by the

defendant on appeal are more tangential to the ultimate issue in the present

case, however; see footnote 1 of this opinion; we are not persuaded that

they are necessarily likely to arise again on retrial, and, therefore, we decline

to address them.

3 The defendant was acquitted on count five, which charged him with

attempt to commit sexual assault in a spousal relationship for allegedly

trying to compel his spouse to perform oral sex on him, and acquitted on

count three, which was one of the counts that charged him with sexual

assault in a spousal relationship for allegedly penetrating his spouse’s anus

with his penis. In its brief, the state misidentifies conduct of which the

defendant was found not guilty. Additionally, in its ‘‘counterstatement of

the facts,’’ the state sets forth the conduct forming the basis for count five,

on which the defendant was acquitted, and does not set forth the conduct

forming the basis for count four, on which the defendant was convicted.

4 The complainant had testified that on Monday, she had spent the night

with a friend so as to avoid the defendant. The defendant, in an attempt to

demonstrate that she was being untruthful and instead was still sleeping in

the same house with him, testified that he saw her in the house on ‘‘Monday

night [into] Tuesday morning . . . .’’

5

In another similar exchange during cross-examination, after the prosecutor pointed out that the defendant failed to tell the police that B.P. had hit

the complainant when she intervened in the dispute between the defendant

and B.P. on the evening in question, the defendant repeatedly responded

that he ‘‘only [answered] the question [that] the police asked’’ and, for this

reason, ‘‘didn’t tell a lot of things to the police’’ during his interview.

6 Although the record is not entirely clear, it appears that these cases had

been mentioned in some capacity by the parties and the trial judge during

the court’s recess, such that each was aware that the cases might be part
of the discussion when court was called back in session.

7 The state’s assertion was incorrect. Although one portion of Hines, not

relevant to this issue, had been criticized by our Supreme Court in a subsequent case; see State v. Sawyer, 279 Conn. 331, 353, 904 A.2d 101 (2006),

overruled in part on other grounds by State v. DeJesus, 288 Conn. 418,

454–55 n.23, 953 A.2d 45 (2008); the holding in Hines on this question remains

good law and has been cited repeatedly by our appellate courts. See, e.g.,

State v. Burney, 288 Conn. 548, 559–60, 954 A.2d 793 (2008); State v. Gauthier, 140 Conn. App. 69, 78–79, 57 A.3d 849, cert. denied, 308 Conn. 907,

61 A.3d 1097 (2013); State v. Arcia, 111 Conn. App. 374, 382–83, 385, 958

A.2d 1253 (2008), cert. denied, 290 Conn. 907, 964 A.2d 543 (2009).

8 On this point, the following exchange took place between defense counsel and the defendant during direct examination:

‘‘Q. . . . [D]escribe the size of the piece [of soap] that you took out . . . .

‘‘A. About the size of my finger.

‘‘Q. Okay. I want to show you the top of this pen, this magic marker, and

ask you, was it the piece that you took out [of] the dish?

‘‘A. Something—yeah. We keep those inside. Yes.

‘‘Q. Okay. So, it was about the size of the top of the magic marker I’m

holding in my hand . . . .

‘‘A. Yes.’’

9

In his brief, the defendant organizes his analysis of this claim by first

asserting that the court improperly refused to mark for identification the

Interval House records, and then, as part of his contention that this error

was harmful, by arguing that the court also improperly concluded that he

failed to make a sufficient showing, pursuant to State v. Esposito, supra,

192 Conn. 179–80, that he was entitled to have the records reviewed in

camera. For the reasons that we discuss, we conclude that the court improperly failed to mark the records for identification. We also conclude that it

is likely that the issue of whether the defendant is entitled to an in camera

review of the records will arise on retrial. We thus choose to address that

claim here because both the state and the defendant have fully briefed

and argued it, and the state has not asserted that the defendant failed to

independently raise it as a claim on appeal.

10 The defendant also explained the importance of these inconsistencies

to the court by noting that at least three of the counts with which he

was charged were based on penile penetration, conduct that was never

mentioned to the doctor.