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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 incompetent 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 Portability 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 amendment right against self-incrimination and provided little substantive testimony, 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 circumstances 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 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; furthermore, the court reasonably could have determined that ordering 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 witnesses 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 department 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 amendment 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 witnesses 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 defendant was employed as a forensic nurse at Whiting Forensic 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 Whiting in 1995 after being found not guilty, by reason of

mental disease or defect, of killing his father and seriously 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 defendant’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 personality 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’’ observation 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 abusing 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 defendant 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 incidents, other Whiting staff were present in the victim’s

room and observed the defendant’s actions. These interactions 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 defendant was subsequently arrested and charged with eight

counts of cruelty to persons and eight counts of disorderly 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 conditions. This appeal followed. Additional facts and procedural 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 independent 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 multiple times throughout the day.

Dr. Berger testified that the victim was diagnosed

with schizoaffective disorder, bipolar type; autism spectrum disorder; and a personality disorder with borderline antisocial and narcissistic traits, and had been diagnosed 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 understanding 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 occasionally 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 disorder that affects the musculature of his tongue and mouth.11

Consequently, the victim has difficulty expressing himself 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 medical emergencies, requiring physical restraint and involuntary 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 Whiting. 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. Berger’s testimony, the court explained that the victim experiences 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 information. 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 minimally 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 necessary findings ‘‘based on the evidence presented to it

. . . .’’

Having discussed the court’s ruling, we begin by setting forth the legal principles and standard of review

that guide our analysis of this claim. ‘‘A [criminal] defendant 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 insufficient 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 impressions, 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 automatically, 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 threshold 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 quotation marks omitted.) State v. Canady, 187 Conn. 281,

291–92, 445 A.2d 895 (1982).

Applying this framework to the present case, we conclude that the court did not abuse its discretion by

declining to conduct a contemporaneous examination

of the victim before making a competency determination. 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 powers of observation, recollection, narration and truthfulness [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. Berger’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 determination. 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 conclusion to the contrary, after listening to the witness’

proffered testimony. He argues that this result demonstrates that a trial court’s firsthand examination of a

proposed witness is procedurally necessary before ruling 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 schizophrenia’ ’’ was, nevertheless, competent to testify at trial.

Id., 241–42. Notably, the court disregarded an expert

psychiatrist’s opinion that the witness was incompetent, 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 discretion in reaching a different determination from the

expert witness and, consequently, admitting the contested testimony. Id., 244. Although the trial court disagreed 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 Weinberg 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 remember 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 decision to evaluate the witness’ testimony for evidence of

independent corroboration came at the expert’s suggestion. 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 independently corroborated, might be credible’’). Stated

plainly, the trial court in Weinberg relied on the substance of the expert psychiatrist’s testimony, and not

its own contemporaneous examination, to determine

the witness’ capacity for truthfulness, cognitive memory, 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 proposed 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 diagnosis that the witness suffered from severe chronic paranoid 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 matter 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 examination 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 demonstrated the victim’s incapacity to accurately and reliably

recount past events and agreed with her ultimate conclusion regarding the victim’s ability to testify.14 Likewise, Dr. Berger did not testify, as did the expert in

Weinberg, that the victim might be found credible if his

testimony were independently corroborated. Accordingly, the court did not err in deciding that a brief, inperson observation of the victim was not necessary in

light of the detailed testimony of his treating psychiatrist 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 testimony, 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 vicarious 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 character 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 proceeding, 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 administrative leave, pending investigation, for allegedly violating the Health Insurance Portability and Accountability 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 corrective 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, however, invoked her fifth amendment right against selfincrimination 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 further 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 everything 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 conservators sign a release permitting him to testify without

violating HIPAA.

Finally, defense counsel called Steven Beaupre, the

human resources manager and Director of Labor Relations 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 violations. He confirmed that the disciplinary actions taken

against Lukman and Hubbard stemmed from the unauthorized 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 prosecution of those individuals. Beaupre clarified that there

may be situations, generally, where department investigations 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 witnesses 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 character-related issues. In response, the state contended

that the defendant had failed to demonstrate an agency

relationship between the department and the prosecution.

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 defendant’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 principles. ‘‘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 discouraging defense witnesses from testifying freely. . . .

Substantial government interference with a defense witness’ 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, including 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 discretion 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. Second, he argues that an agency relationship existed

between the department and the prosecution, such that

any misconduct committed by the department is attributable 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 conservator had signed releases permitting defense witnesses

to testify regarding the victim’s health status. With those

releases secured, Beaupre confirmed that the department would not take any action against witnesses who

testified regarding the victim. Moreover, Lukman and

Hubbard were retroactively absolved from administrative penalties resulting from their statements at Giantonio’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 witnesses from testifying at the defendant’s trial is speculative and unsupported by the evidence in the record.
Additionally, the defendant has failed to demonstrate

that an agency relationship existed between the department 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 acting 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 investigation, 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 prosecutor’s office on the case in question would inappropriately require us to adopt a monolithic view of government 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 propriety 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 relevant 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 statements to outside law enforcement regarding the victim’s

alleged abuse. The defendant also notes that Whiting

staff had provided law enforcement with the video footage from the victim’s room. Our Supreme Court has

determined, however, that even when an agency undertakes some actions at the direction of the prosecution,

it is not necessarily deemed to be an arm of the prosecution when undertaking other actions. See State v. Guerrera, supra, 331 Conn. 648–49 (holding that Department

of Correction was investigative arm of state for percentage 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 investigation.

The record indicates that the department’s administrative investigations serve a function distinct from

criminal investigations, namely, to examine and sanction potential work rule violations and other policy

violations. Thus, the purpose of internal investigations

is to ensure that employees follow workplace regulations, not to be an auxiliary fact finder for law enforcement.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 prosecutor’s investigation). Accordingly, the record does

not support the conclusion that the administrative

actions taken against Lukman and Hubbard were conducted at the prosecution’s direction. As stated previously, the investigation was performed solely to ascertain whether the employees violated HIPAA by disclosing

protected medical information at Giantonio’s sentencing 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 defendant 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 defendant’s or defense [witness’] testimony in a criminal trial

deprives a defendant of his [due process] right to present 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 opportunity to offer witness testimony or to present a complete 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 discipline.

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 violate a criminal defendant’s constitutional right to present 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 quotation 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 reiterated 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 witness’ anticipated testimony during a pretrial evidentiary

hearing. The defendant argues that raising those concerns intimidated the witness and caused her to invoke

her fifth amendment privilege against self-incrimination, 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 arguments.

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 nonviolence. Before defense counsel began his direct examination, 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. Lukman and detailed the discussions he had with Ms. Lukman 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 immunity27 and to sanction the state for attempting to intimidate Lukman with the threat of prosecution. The prosecutor 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 provided Lukman with an opportunity to consult counsel

before proceeding as a witness.

When the hearing resumed on March 18, 2019, Lukman appeared with her counsel, Jeffrey Kestenband.

Attorney Kestenband filed a motion to quash defense

counsel’s subpoena for his client and stated that Lukman intended to invoke her fifth amendment right

against self-incrimination ‘‘as to, pretty much, any substantive 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 amendment privilege . . . then we’ll take it up.’’

Lukman subsequently took the stand and proceeded

to answer some of defense counsel’s questions. Afterward, Attorney Kestenband objected to a series of

defense counsel’s questions, effectively invoking Lukman’s fifth amendment privilege on her behalf. Defense

counsel objected in turn, claiming that the fifth amendment 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 Lukman regarding self-incrimination concerns. Irrespective

of the trial court’s offer, Attorney Kestenband continued

to object to defense counsel’s questions on fifth amendment 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 counsel’s subsequent question. Lukman answered, ‘‘yes.

Based on the advice of counsel.’’ Afterward, the court

permitted defense counsel to state his remaining questions on the record. The court again asked Lukman

whether she would invoke her fifth amendment privilege 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 testimony, which he claims constituted a veiled threat

meant to discourage Lukman from testifying and effectively 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 distinct: (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 defendant 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 Lukman 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 additional 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 incriminating statements regarding the contents of the report.

Moreover, Lukman originally appeared without counsel, 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 selfincrimination 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. Specifically, the defendant claims that the court’s ‘‘decision

to grant Lukman a blanket fifth amendment privilege

against testifying . . . secured Lukman’s unavailability’’ 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 ruling 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 treatment 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 observation 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 security 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 treatment. 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 provides that ‘‘[a] person may not testify if the court finds the person incapable

of receiving correct sensory impressions, 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.’’

10 The victim was transferred out of Unit 6 after allegations against the

defendant, and others, were brought to the attention of Whiting administration. Dr. Berger subsequently assumed responsibility as the victim’s treating

psychiatrist.

11 Dr. Berger testified that the victim’s tardive dyskinesia stems from antipsychotic 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 unintelligible 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 ascertained 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 deteriorate.

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 knowledge. ‘‘[HIPAA’s] Privacy Rule forbids an organization subject to its requirements (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 evidence presented in a totality of circumstances . . . including its observations 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 proceeding 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 investigations, unlike criminal investigations, are not constrained by certain constitutional safeguards, such as the fifth amendment privilege against self-incrimination.

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 defendant’s reputation for peacefulness and nonviolence.

27 See General Statutes § 54-47a.

28 During the pretrial hearing, defense counsel stated that Lukman’s testimony would be offered to describe the defendant’s ‘‘reputation for nonviolence.’’ 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.