Argued Nov. 7, 1988.
Charles D. Ray and Ramona Stilley Carlow, Certified Legal Interns, with whom were Michael R. Sheldon and, on the brief, Todd D. Fernow, Timothy H. Everett, Hartford, and John T. Carey, Certified Legal Intern, West Hartford, for appellant (defendant).
Harry Weller, Deputy Assistant State's Atty., with whom were Herbert Appleton, Asst. State's Atty., and, on the brief, John M. Bailey, State's Atty., and Pamela Weidman, Law Student Intern, for appellee (State).
Before DUPONT, C.J., and SPALLONE and FOTI, JJ.
[17 Conn.App. 603] DUPONT, Chief Judge.
The defendant appeals from the judgment of conviction, following a jury trial, of manslaughter in the first degree, in violation of General Statutes [17 Conn.App. 604] § 53a-55(a)(2).  The defendant claims that the trial court erred (1) in compelling him to submit to a series of pretrial psychiatric examinations, (2) in instructing the jury that they could use defense and prosecution expert testimony to find that he possessed the requisite intent to commit murder, (3) in denying his request to have his counsel present at the court ordered psychiatric examinations, and (4) in denying his request to have the court ordered psychiatric examinations recorded. We find no reversible error.
The facts are virtually undisputed. Shortly after 6 a.m. on March 8, 1985, a 1979 Oldsmobile registered to the defendant's wife was found to have crashed into a utility pole in West Hartford. Officers of the West Hartford police department found the body of the defendant's wife's on the front floor of the car, with her arms twisted unnaturally and several gashes on the right rear of her head. The police department undertook a day long investigation, studying the car and the West Hartford home of the defendant and his wife, where both had resided with their three young sons. As part of that investigation, photographs were taken of the car and portions of the defendant's home, including the garage and master bedroom. The defendant was questioned by the police, an autopsy was performed, and later that evening the home was searched pursuant to a warrant. Several hours later, the defendant was arrested on a warrant charging him with the murder [17 Conn.App. 605] of his wife. After a trial the jury returned a verdict of guilty of manslaughter in the first degree pursuant to
General Statutes § 53a-55(a)(2). The defendant was sentenced to twenty years imprisonment. Other facts relevant to the issues in this appeal will be discussed below.
The defendant first claims that the trial court erred in compelling him to submit to a series of pretrial psychiatric examinations conducted pursuant to Practice Book § 760,  in violation of his federal constitutional privilege against self-incrimination, as guaranteed by the fifth amendment to the United States constitution and made applicable to the states through the due process clause of the fourteenth amendment; Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); and his privilege against self-incrimination contained in article first, § 8, of the constitution of Connecticut. The following facts are relevant to this claim. On March 11, 1985, the defendant was arraigned Before the court, Doyle, J. The defendant was advised of his Miranda rights,  bond was set at $150,000, and the defendant was ordered, over his objection, not to see or communicate with his children until further court review. On March 13, 1985, a further hearing on bond was held Before the court, Purtill, J. In support of his plan for the posting of bond, which called in part for the defendant's temporary hospitalization upon his [17 Conn.App. 606] release, the defendant presented the testimony of psychiatrist Walter Borden. Borden, who had briefly visited the defendant two days Before , testified that the defendant was "in a state of confusion, emotional confusion, depression, grief, [and] shock." On that basis, he concluded that even though the defendant did not present a danger to himself or others and was not likely to flee the jurisdiction if released, "he should be in a psychiatric hospital for a relatively short period of time." When questioned by the court, Borden confirmed that the defendant was in need of temporary hospitalization "given his state of mind right now." Accepting Borden's conclusion that "at the present time [the defendant] has ... problems [for which] he should be in some type of institution, where he can be treated," the court ordered that, as a condition of his bond, the defendant was to enter a hospital and remain there for as long as his treating physician required. The next day, the bond arrangements were finalized. The order regarding the defendant's hospitalization was continued and clarified to include a requirement that the defendant could not leave the hospital without notifying the court.
On March 26, 1985, the state moved the court, E.Y. O'Connell, J., for a psychiatric examination of the defendant under Practice Book § 760 and for an order under Practice Book § 667  seeking a continuance of the court's prior order prohibiting the defendant from seeing or communicating with his children. The defendant simultaneously moved for permission to see his children. The hearing also involved the bond condition requiring the defendant to report to the court Before [17 Conn.App. 607] his release from the hospital. At the hearing on these motions, the state argued that this was "an appropriate case" under Practice Book § 760 for a psychiatric examination because the defendant might later rely upon the defenses of extreme emotional disturbance or insanity. See Practice Book
§ § 758 and 759.  Citing the defendant's hospitalization as evidence of this possibility, the state claimed that an examination should be conducted "as soon as possible" to "protect the state's interest." Having just been given the state's motion, defense counsel stated that he was not prepared to address it. Expressing concern as to the parameters and purpose of any examination, the defendant argued that Practice Book § 760 was not applicable to the case as no decision had yet been made concerning possible defenses.
[17 Conn.App. 608] The court stated that it would like to have "the benefit of the psychiatric examination in passing on" the defendant's motion to see his children, and the state's motion under Practice Book § 667. In support of his motion to see his children, the defendant had submitted letters from Borden  and psychiatrist Bruce Greyson. The state opposed the defendant's motion, relying on Practice Book § 667, on a tape recording of an interview with the children, and on the fact that the defendant was currently being "treated by two psychiatrists." Observing that the defendant's hospitalization and the reports submitted by the defendant "may impinge" upon its determination of the motions Before the court, the court granted the state's motion for a psychiatric examination of the defendant over his objection. The only specification in the court's order was that the examination be conducted by psychiatrist Peter Zeman, if he was available. The court, after viewing the taped interview with the defendant's children, granted the state's § 667 motion and denied the defendant's motion for permission to see his children on the ground that contact with the children "could cause confusion or otherwise be a disturbing influence to the children, which would interfere with the orderly administration of justice."
On March 27, 1985, the defendant moved for a protective order concerning the upcoming court ordered examination. Alleging that his constitutional rights would otherwise be violated, the defendant requested (1) that no examinations be conducted without the presence of counsel, (2) that the examinations be limited to matters concerning his competency to stand trial, (3) that no question be asked of him relating to the events surrounding the death of his wife, and (4) that [17 Conn.App. 609] any matters of substance elicited from him not be communicated to anyone other than himself or his counsel. The court, E.Y. O'Connell, J., heard argument on the motion on March 29, 1985. At that hearing, the defendant argued that any psychiatric examination pursuant to § 760 was inappropriate because no notice of an intent to rely on a defense of mental disease or defect had been filed under Practice Book § 758. Alternatively, the defendant
requested the presence of counsel at the examination or that it be recorded.
The state argued that Borden's earlier testimony, the defendant's hospitalization, and the strength of the state's case indicated that the only foreseeable defenses would be insanity or extreme emotional disturbance and, therefore, this was "an appropriate case" under Practice Book § 760. The state further argued that the defendant's fifth and sixth amendment rights would not be violated if counsel was not present, and that there would be "nothing lost," as the information could not be used if the defendant did not file the defense. The state complained that, if the prior order were rescinded, it "could be forced to be waiting for I don't know how long Before the defendant may wish to put the state and the court on notice that he's going to rely on either one or both of those defenses." The court was also told that Zeman would not examine the defendant if defense counsel, a court reporter, or a tape recorder were present.
The court denied the defendant's motion, reasoning that the defendant, and not the state, had introduced the "psychiatric aspect" of the case by presenting the testimony of Borden and the letters from Borden and Greyson such that "fairness, equity and justice required that the state be able to also have an examination in order that it could make certain representations and know where it was going with the case." Relying on federal cases, the court also denied the defendant's [17 Conn.App. 610] request to have counsel present at the court ordered psychiatric examination and his alternate request for a recording of the examination. 
Zeman examined the defendant ten times for a total of seventeen hours. Eight examinations were conducted in April and May, 1985. On April 19, 1985, the state moved for the defendant to comply with the court's March 29, 1985 order requiring him to undergo a psychiatric exam, stating that the examination had begun but had not been completed, and that the defendant refused to comply with the court's order. At a hearing on April 22, 1985, the state informed the court, E.Y. O'Connell, J., that Zeman desired psychological testing done on the defendant in order to have a complete examination with which to meet the defendant's defense of mental disease or defect, "if and when it arises." This motion was granted over the defendant's objection.
Given the court's ruling and the fact that no notice of a defense of mental disease or defect had been filed, the defendant asked the court to order Zeman not to communicate to the state any information obtained during the examinations other than Zeman's diagnosis. The state opposed the defendant's request, claiming that there was a collateral matter then Before this court, concerning the defendant's children about which the state and Zeman had, and would continue to have, discussions. The state further argued that it should also be allowed to have discussions with Zeman concerning the release condition of the bond that had been imposed prohibiting the defendant from seeing or communicating with his children.
Reluctant to rule without a written motion, the court denied the defendant's oral motion and noted his exception. [17 Conn.App. 611] The court invited the defendant "to file such a motion as you deem appropriate and attach a suggestive order to it." The court stated that, if the state objected to the order, further arguments would be heard. That same day, the defendant filed a motion requesting (1) that Zeman be prohibited from revealing the substance of any conversation with the defendant to the state's attorney, agents thereof, the state police or municipal police of any community, and (2) that any communication between Zeman and the state's attorney's office be limited to Zeman's diagnosis of the defendant's current emotional condition. The record does not indicate the court's disposition of that motion.
The psychological testing ordered by the court to complete Zeman's examinations was conducted on April 29 and May 7, 1985, by psychiatrist Anne Marie Phillips. The defendant's probable cause hearing commenced on May 17, 1985, forty-nine days after the examinations were ordered. On June 18, 1985, the state filed the information charging the defendant with murder, to which the defendant pleaded not guilty and elected a jury trial. On August 9 and September 18, 1985, the defendant filed identical motions to suppress (1) all of the testimony of Zeman concerning statements made by him about the events immediately Before and after March 8, 1985, and (2) any evidence that the state intended to use that was indirectly or directly derived from conversations between Zeman and anyone in the state's attorney's office. On May 6, 1986, the defendant filed notice of his intent to raise the defense of mental disease or defect and extreme emotional disturbance pursuant to Practice Book §§ 758 and 759. Thereafter, he was examined twice more by Zeman on June 10 and 24, 1986, pursuant to an order by the court, Barall, J.
On appeal, the defendant claims that the trial court erred in compelling him to submit to a pretrial psychiatric[17 Conn.App. 612] examination under Practice Book § 760 Before he filed written notice of his intent to rely on the defenses of insanity and extreme emotional disturbance pursuant to §§ 758 and 759, thereby violating his privilege against self-incrimination under the federal and state constitutions.
"The privilege against self-incrimination embodied in the fifth amendment and made applicable to the states by the fourteenth amendment to the constitution of the United States ... protects an accused against compulsory submission to psychiatric examination. Estelle v. Smith, 451 U.S. 454, 468, 101 S.Ct. 1866,  68 L.Ed.2d 359 (1981). A similar result obtains under article first, § 8, of the constitution of Connecticut." State v. Lovelace, 191 Conn. 545, 550, 469 A.2d 391 (1983), cert. denied, 465 U.S. 1107, 104 S.Ct. 1613, 80 L.Ed.2d 142 (1984). This privilege is waived, however, "when [the defendant] places his mental status in issue." State v. Fair, 197 Conn. 106, 109, 496 A.2d 461 (1985), cert. denied, 475 U.S. 1096, 106 S.Ct. 1494, 89 L.Ed.2d 895 (1986). Accordingly, the constitutionality of a compulsory psychiatric examination under Practice Book § 760 "depends upon whether the defendant has placed his mental status in issue." Id.
"Any defendant who asserts the defense of extreme emotional disturbance ... raises the issue of his mental status and hence relinquishes his privilege against submitting to court-ordered psychiatric examination." Id. at 111, 496 A.2d 461. "[W]hen a defendant raises the defense of insanity, he may constitutionally be subjected to compulsory examination by court-appointed or government psychiatrists ... and when he introduces into evidence psychiatric testimony to support his insanity defense, testimony of those examining psychiatrists may be received (on that issue) as well." United States v. Byers, 740 F.2d 1104, 1115 (D.C.Cir.1984).
[17 Conn.App. 613] The question presented in this case is whether the defendant had placed his mental status in issue by raising the defenses of insanity or extreme emotional disturbance at the time the trial court compelled him, pursuant to its order of March 26, 1985, to submit, over his objection, to a psychiatric examination Before he filed written notice of his intent to rely on the defenses of insanity and extreme emotional disturbance pursuant to Practice Book §§ 758 and 759.  Our careful review of the record indicates that the defendant had not.
[17 Conn.App. 614]
On appeal, the state argues that Borden's testimony at the defendant's bond hearing, the written testimony of Borden and Greyson presented at the hearing on the defendant's motion to modify a condition of his bond, the defendant's stay in a hospital for psychiatric purposes, and the strength of the state's case against the defendant all indicated that the only foreseeable defenses the defendant had available to him were those concerning his mental status at the time the crime was committed.  The state therefore argues that the defendant had placed his mental status in issue at the time he was compelled to submit to a series of psychiatric examinations conducted pursuant to the court's order of March 26, 1985. By contrast, the defendant argues that he had not placed his mental status in ...