State v. Brelsford

587 A.2d 1062, 24 Conn. App. 287, 1991 Conn. App. LEXIS 81
CourtConnecticut Appellate Court
DecidedMarch 19, 1991
Docket7810
StatusPublished
Cited by6 cases

This text of 587 A.2d 1062 (State v. Brelsford) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Brelsford, 587 A.2d 1062, 24 Conn. App. 287, 1991 Conn. App. LEXIS 81 (Colo. Ct. App. 1991).

Opinion

Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of escape from custody in violation of General Statutes § SSa-Wl.1 The defendant claims that the trial court improperly allowed a treating psychiatrist from the Bridgeport correctional center to testify as a state’s witness concerning matters that were protected by the psychiatrist-patient privilege. We affirm the judgment of the trial court.

The defendant did not contest the state’s allegation that he left custody, but, rather, elected to raise two affirmative defenses both of which arose from his need for Elavil, an antidepressant medication. The defendant asserted (1) duress, alleging that police officers in the lock up area threatened him physically when he asked for Elavil, and (2) necessity, alleging that part of his reason for leaving custody was to obtain this medication.2

[289]*289The defendant offered the testimony of Roseanne Wenz, a nurse and supervisor of the medical department at the Bridgeport correctional center, who maintained the records of the medications that physicians order for the inmates. Wenz testified that from September 2 to November 2,1986, the defendant had been prescribed 100 milligrams of Elavil at bedtime. She classified this medication as an antidepressant, and characterized it as a mood elevator rather than as a tranquilizer. It was administered orally in pill form. The defendant also called Mary Lou McDougall, a clerk at the institution, who produced the defendant’s mittimus which indicated that he needed medication and that a suicide watch was placed on him.

The defendant testified that the police had refused to give him Elavil when he asked for it and told him to be quiet or they would hurt him. He further testified that he was afraid to go without Elavil because he had taken it for a long time, and that, although he thought the police would kill him if he continued to ask for the medication, he felt he could not function without it. On cross-examination, he stated that he took Elavil because the doctor told him to and that every time he is in jail he receives the medication if he sees the doctor.

[290]*290After the defendant’s case-in-chief, the state presented James Alexander, the psychiatrist at the Bridgeport facility. He testified, over the defendant’s objection,3 as to years of treatment, the defendant’s problems with depression, his therapy with the medication Elavil, his adjustment to incarceration and whether he was intimidated. Specifically, he testified that he had treated the defendant for years and that he currently prescribed Elavil for the defendant, which is an antidepressant drug possessing moderate sedating qualities. The withholding of one dose of Elavil would result in a slight decrease in the medication level in the blood, not sufficient to cause any significant agitation or any type of withdrawal symptom. The withholding of more than one dose, Alexander testified, would not cause any substantial change in behavior. There are no withdrawal symptoms from the cessation of Elavil.

In the defendant’s case, this regimen served primarily as a chemical restraint to help control some of the defendant’s aggressive and obstreperous behavior. The defendant had also shown some symptoms of mild depression and this would be the treatment for depression. Alexander also testified that, even if the defendant were not in the correctional facility, some form of sedation or chemical restraint would be necessary. He further testified that the defendant had made a rea[291]*291sonable adjustment to incarceration, and that his behavior had not been altered in any way since the development of a psychotic state.

There is no dispute that Alexander is a psychiatrist and is acting as such at the Bridgeport facility and that the defendant is his patient. The state argues that the defense has failed to establish the existence of a patient-psychiatrist relationship. The record, however, clearly shows otherwise.4

The state also argues that although General Statutes § 52-14e (a) generally prohibits5 any person from disclosing or transmitting “any communications and rec[292]*292ords or the substance or any part or any resume thereof which identify a patient to any person, corporation or governmental agency,” it does not apply in this case because the testimony contained no direct reference to any communication or record. This argument is also without merit. General Statutes § 52-146d (2) defines communication and records to mean “all oral and written communications and records thereof relating to diagnosis or treatment of a patient’s mental condition between the patient and a psychiatrist . . . including communications and records which occur in or are prepared at a mental health facility . . . .” General Statutes § 52-146d (5) defines a mental health facility to include “any hospital, clinic, ward, psychiatrist’s office or other facility, public or private, which provides inpatient or outpatient service, in whole or in part, relating to the diagnosis or treatment of a patient’s mental condition. . . .” The hospital clinic section at the Bridgeport facility is clearly a mental health facility pursuant to the statute. General Statutes § 52-146d (6) defines patient as a “person who communicates with or is treated by a psychiatrist in diagnosis or treatment . . . .” In summation, Alexander’s testimony described the treatment of a patient at a mental health facility and was, therefore, within the scope of the statute.

The state further argues that Alexander’s diagnosis of the defendant may have been based on observations rather than communications or records and that the record is insufficient to show otherwise. Again, we do not agree. The record is clear that Alexander treated the defendant for years, had his records before him and diagnosed and treated the defendant in a psychiatrist-patient relationship. It is obvious that the relationship is based not only on observations, but also on communications and records.

[293]*293The state’s final argument is that, although there is no express waiver, the defendant waived the privilege by his conduct. The state argues that the defendant cannot assert the privilege because he put his need for Elavil into issue by raising the affirmative defense of necessity.6 We agree.

“[A] waiver must be the intelligent relinquishment of a known right. A necessary element to waiver is the requisite knowledge of the right and a waiver presupposes a full knowledge of an existing right or privilege and something done designedly or knowingly to relinquish it.” State v. Toste, 178 Conn. 626, 629-30, 424 A.2d 293 (1979). The standard for finding such a waiver “ ‘must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused.’ ” State v. Acquin, 187 Conn. 647, 666, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983), quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938).

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Cite This Page — Counsel Stack

Bluebook (online)
587 A.2d 1062, 24 Conn. App. 287, 1991 Conn. App. LEXIS 81, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-brelsford-connappct-1991.