Argued Jan. 17, 1991.
[Copyrighted Material Omitted]
F. Mac Buckley, with whom was Hope C. Seeley, Hartford, for appellant (defendant).
Rita M. Shair, Deputy Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., John H. Malone and Rosita Creamer, Asst. State's Attys., and Kathryn St. Amand, Law Student Intern, for appellee (state).
Before PETERS, C.J., and CALLAHAN, GLASS, COVELLO and HULL, JJ.
[218 Conn. 350] CALLAHAN, Associate Justice.
The defendant, Eric K. Steiger, was charged in an amended information with two counts of murder in violation of General Statutes § 53a-54a, one count of capital felony in violation of General Statutes § 53a-54b(8), one count of conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a, and one count of conspiracy to commit capital felony in violation of §§ 53a-48 and 53a-54b(8).  During[218 Conn. 351] the course of his trial Before a three judge panel, the defendant introduced evidence in support of his affirmative defenses of lack of capacity due to mental disease or defect; see General Statutes § 53a-13;  and extreme emotional disturbance. See General Statutes § 53a-54a(a). The defendant also asserted that he did not have the specific intent to cause the deaths of the victims because he suffered from a mental disease or defect that rendered him incapable of forming that intent. See General Statutes § 53a-54a(b). The three judge panel convicted the defendant on all
counts. In the penalty phase of the proceedings, the panel unanimously made a special finding of aggravating factors and a majority of the panel issued a special finding of [218 Conn. 352] mitigating factors. The defendant received a sentence of imprisonment for the remainder of his life without the possibility of release for the capital felony conviction and an identical sentence for conspiracy to commit capital felony, with the latter sentence running concurrently to the former. No sentences were imposed for the other three convictions. The defendant appealed to this court pursuant to General Statutes § 51-199(b)(3). 
On appeal, the defendant claims that his constitutional privilege against self-incrimination and his right to due process of law were violated when the trial court admitted into evidence a videotape recording of a psychiatric examination of the defendant conducted pursuant to Practice Book § 760.  The defendant also appears to claim that his sixth amendment right to counsel was implicated by the admission of the videotapes. Finally, the defendant contends that the trial court improperly concluded that he failed to prove his affirmative defenses by a preponderance of the evidence and that the state proved beyond a reasonable doubt that he intended to cause the deaths of the victims. We affirm the judgment of the trial court.
The three judge panel could reasonably have found the following facts. At approximately 9 p.m. on July 11, [218 Conn. 353] 1987, the defendant and his longtime friend, Andrew Patterson, drove to meet a group of young people who were talking and drinking beer while gathered at a cul-de-sac at the end of Kingfisher Lane in a new housing development in Suffield. There they met Patterson's brother, Bryan Patterson, and his friend, Richard Bazzano. At approximately 10 p.m., a pickup truck pulled up to the group and two men, Daniel Seymour and William Price, exited from the truck with metal pipes in their hands. They informed the group that there were now families living in the area and told them that they would have to leave.  As people began to disperse, the defendant approached the two men and asked why the group was being harassed. At that time, one of the men told the defendant that he could take his head off with one swing of the pipe he was carrying. During the altercation that followed, the defendant was poked on the nose with a pipe, after which he mumbled, "I'm coming back."
After returning to his car, the defendant became very agitated. He began banging his head against the steering wheel and shouting that he was going to go back and kill the two men. At this point, Bryan Patterson, who had left the gathering Before the arrival of Price and Seymour, returned to the cul-de-sac and learned of the confrontation. When the defendant drove away from the area with Andrew Patterson and Bazzano, Bryan Patterson and several others followed the defendant to his mother's home in Suffield where the defendant was living. During the ride, Andrew Patterson told the defendant that this was "the offensive"  [218 Conn. 354] and that the defendant
had to take the initiative. When Bazzano asked what "the offensive" was, the defendant said, "it's to kill people." Upon arriving at his home, the defendant told the girls in the group to leave and told the others that he was "going back with a gun" and that "those guys are history."
After the others left, the Patterson brothers and Bazzano followed the defendant to the garage attic where he kept his weapons. There the defendant put on a camouflage outfit, a black ski mask, and an Irish Republican Army pin. He then instructed Bazzano and Andrew Patterson to begin loading ammunition into certain weapons, including an M-1 carbine and a Browning nine millimeter pistol. The defendant also told Bryan Patterson to keep his mother occupied so that she would not call the police. Meanwhile, the defendant, Andrew Patterson and Bazzano loaded approximately 700 rounds of ammunition into various weapons and magazines. The defendant told Andrew Patterson that the plan was to drop him off at Kingfisher Lane and he would meet the others later at a local school. The defendant also gave a .44 magnum handgun to Andrew Patterson as if it were a final gift and said that he had wanted to kill himself the prior week anyhow.
After spending approximately forty minutes loading the weapons, the group left the attic. When they did, the defendant was armed with the M-1 carbine, the nine millimeter pistol, both of which were loaded, and a ten inch knife. He also wore a combat harness loaded with [218 Conn. 355] full magazines of ammunition. As the four men gathered outside the house, one of them offered the defendant the use of a police scanner, which he accepted. The defendant also ingested some diet pills at that time. In accordance with the defendant's instructions, Bryan Patterson and Bazzano then lifted the defendant into the hatchback area of the defendant's automobile and lowered the hatch without locking it. Andrew Patterson drove the defendant's car while Bazzano rode in the passenger seat and Bryan Patterson followed in his own car. At one point, the defendant told Andrew Patterson to slow down because he did not want to get pulled over for speeding.
Upon arriving at Kingfisher Lane at approximately 11 p.m., the defendant directed Bryan Patterson to pull his vehicle into the driveway of the Seymour home to see if the pickup truck was there. After Bryan Patterson did so, Seymour and Price came out of the house and began hitting Bryan's car with metal pipes. As Bryan drove away from the Seymour home, Andrew Patterson shouted, "Go, Eric, go." At that point, the defendant rolled out of the back of the hatchback in military fashion. Bazzano and Andrew Patterson then drove away. As Seymour and Price advanced toward the defendant, Seymour said, "You think you're a tough guy with a gun," and the defendant responded, "Yes." The defendant fired a warning shot into the air but Seymour and Price kept coming toward him carrying the metal pipes. The defendant then shot one of the victims, who fell, and he then turned and shot the other. After the second victim fell, the defendant reloaded the nine millimeter pistol and fired a number of shots into Price while he lay on the ground.
Kathleen Seymour, the mother of one of the victims, and Diane Seymour, Price's fiancee, were watching from the front porch area. As they screamed, the [218 Conn. 356] defendant yelled back, "You get your fuckin' ass out here and I'll do the same thing to you." The defendant then ran off into the woods. The two victims, Seymour and Price, were pronounced dead at the scene at 11:32 p.m., both having suffered multiple gunshot wounds to the chest and abdomen.
After leaving the scene, the defendant ran through woods and fields and reached his home at approximately 12:45 a.m. on July 12, 1987. Upon arriving home, he told his mother that terrorists had been after him with pipes and that he had shot them. His mother described him as "wild looking" and "shaking" at this point. After his mother suggested calling his father or the police, the defendant told her that he would shoot his father if he came. Thereafter, the defendant and his mother walked to a nearby golf course and sat down. While there, he told her that he was on a mission and had to kill himself because that was part of "the offensive." His mother told him that he was sick and that he should go to her sister's house in the Bronx. The defendant instead said that he had to talk to Andrew Patterson and departed on foot.
He was unable to talk to Andrew Patterson, however, because Andrew and Bazzano had left Connecticut for Vermont shortly after the shooting. The defendant, nonetheless, did go to the Patterson home and when Bryan Patterson arrived there at approximately 2:15 a.m. on July 12, 1987, the defendant came from behind the Pattersons' garage. The defendant told Bryan that he had killed the two men and asked what he should do. Bryan suggested to the defendant that he should turn himself in to the police. The defendant rejected Bryan's advice. Then, after giving Bryan his web ammunition belt and telling him to throw it into the Connecticut River, the defendant hugged Bryan and returned to his home.
[218 Conn. 357] Subsequently, as his mother had advised, the defendant drove to his aunt's apartment in the Bronx, where he arrived at approximately 11 a.m. on July 12, 1987. The defendant called his father from his aunt's apartment and threatened to kill himself, but his father persuaded him to return to Connecticut and surrender to the police. He returned and was arrested that same afternoon. Subsequently he gave a voluntary statement to the police describing the events related to the shooting. 
On December 9, 1987, the defendant filed a notice of defense of mental disease or defect pursuant to Practice Book §§ 758 and 759.  On January 22, 1988, the [218 Conn. 358] state filed a motion for a psychiatric examination pursuant to Practice Book § 760. Howard Zonana, a forensic psychiatrist who testified as an expert witness for the state, conducted this examination on June 23, 25 and 30, 1988. At the time of the examination, the defendant was taking
vistaril, an antianxiety medication, and lithium, which is primarily used to treat affective disorders by minimizing mood swings. Zonana made videotape recordings of the examination, which ran approximately seven and one-half hours. The state offered the videotapes during rebuttal as an aid to Zonana's testimony and as evidence of the basis for his opinion. Because both Zonana and Peter Zeman, a forensic psychiatrist who testified for the defendant, indicated that they utilized the tapes in reaching their conclusions, the state also argued that the trier of fact could use the videotapes to evaluate those conclusions. The three judge panel admitted the videotapes as a full exhibit over the objection of the defendant and viewed them in their entirety. The defendant did not testify at his trial.
The defendant raises three constitutional claims concerning the use of the videotapes. He contends that their admission into evidence violated his privilege against self-incrimination and his right to due process of law guaranteed by the fifth and fourteenth amendments to the United States constitution and article first, § 8 of the Connecticut constitution, as amended by article seventeen of the amendments to the Connecticut constitution.  [218 Conn. 359] He also appears to argue that his sixth amendment right to counsel was violated by the admission of the tapes. Before we consider the defendant's constitutional claims, however, we must address his argument that a consent form concerning the videotaping, which the defendant executed at the request of Zonana, gave the defendant the prerogative to withdraw his consent to the use of the videotapes at his trial.
Before commencing his first interview with the defendant, Zonana handed him a printed consent form related to the videotaping procedure that was about to
take place.  Zonana testified that the purpose of the [218 Conn. 360] consent form was to document that the defendant was aware that the interview was being recorded, to reiterate the oral notice that the videotapes might be played in court, and to obtain the defendant's permission to use the videotapes in the classroom for teaching purposes. He also testified that he would have videotaped the examination even if the defendant had said that he did not want the interview recorded. The defendant completed the form and signed it at Zonana's request.  During the trial, the defendant gave written notice to Zonana that he was withdrawing his authorization to allow the use of the videotapes at his trial.  The defendant claims that the terms of the consent form gave him that right. The state, on the other hand, argues that the provisions set forth in the form only gave the defendant the right to withdraw his consent to the use of the videotape for teaching purposes and did not permit him to bar the use of the tapes during his trial.
The defendant relies on that portion of the consent form stating that "I understand that I may withdraw this authorization at any time by furnishing written notice thereof to the Law & Psychiatry Unit...." He argues that this provision gave him the right to deny the state the ability to use the videotapes during trial.
The defendant's interpretation of this provision is not [218 Conn. 361] reasonable, however, when the consent form is read as a whole. The form also provides that "I understand that part or all of these recordings may be played for officers of the court or played during courtroom proceedings" and "I also give permission for these recordings to be played by the staff at the Law & Psychiatry Unit for medical/legal professionals engaged in research/training." (Emphasis added.) The state contends that the proper interpretation of the consent form is that the authorization sought was to use the tapes for teaching purposes and the defendant therefore retained only the right to withdraw his permission to use the tapes for that purpose. Considering the differences in the terminology used in the consent form in the provisions concerning the use of the tapes in the courtroom and for teaching purposes, we agree with the state's interpretation. We also conclude that, in the absence of any express right granted to the defendant under the consent form, the state was not required to seek his permission to use the tapes at trial.
The defendant next claims that the admission into evidence of the videotapes of the psychiatric examination compelled him to testify against himself because the tapes depicted his demeanor, manner of speaking, facial expressions and body language during the examination as well as his verbal responses to Zonana's questions. The state argues that the use of the videotapes as a basis for Zonana's opinion did not violate the defendant's constitutional guarantee against self-incrimination. We agree.
Practice Book § 760 provides that "the judicial authority may ... order the defendant to submit to a psychiatric examination" and that "[n]o statement made by the defendant in the course of any examination[218 Conn. 362] ... shall be admitted in evidence against the defendant on the issue of guilt in any criminal proceeding."  "The constitutionality of a compulsory psychiatric examination depends upon whether the defendant has placed his mental status in issue. The fifth amendment to the United States constitution and article first, § 8, of the Connecticut constitution ordinarily protect 'an accused against compulsory submission to psychiatric examination.' 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), citing Estelle v. Smith, 451 U.S. 454, 468, 101 S.Ct. 1866 , 68 L.Ed.2d 359 (1981). A criminal defendant waives this privilege, however, when he places his mental status in issue. '[T]he defendant may decide whether to raise the issue of his mental state but if he chooses to do so he exposes his mental processes to reasonable examination by the state.' State v. Lovelace, supra, 191 Conn. at 551-52 [469 A.2d 391]." 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); State v. Manfredi, 213 Conn. 500, 513, 569 A.2d 506, cert. denied, --- U.S. ----, 111 S.Ct. 62, 112 L.Ed.2d 37 (1990).
The issue raised by the defendant's claim of self-incrimination is not whether the defendant can be compelled to submit to a psychiatric examination. It involves instead the extent to which the fifth amendment protects a criminal defendant against the admission of evidence concerning the results of a psychiatric examination conducted pursuant to Practice Book § 760. "[I]f a defendant requests [a psychiatric] evaluation or presents psychiatric evidence, then, at the very least, the prosecution may rebut this presentation with [218 Conn. 363] evidence from the reports of the examination that the defendant requested. The defendant would have no Fifth Amendment privilege against the introduction of this psychiatric testimony by the prosecution." Buchanan v. Kentucky, 483 U.S. 402, 422-23, 107 S.Ct. 2906, 2917-18, 97 L.Ed.2d 336, reh. denied, 483 U.S. 1044, 108 S.Ct. 19, 97
L.Ed.2d 807 (1987); Powell v. Texas, 492 U.S. 680, 109 S.Ct. 3146, 3149, 106 L.Ed.2d 551 (1989) (per curiam). In Buchanan, the court held that the defendant's privilege against self-incrimination was not violated when excerpts from a report containing a psychiatrist's general observations concerning the defendant's mental status were read to the jury. Buchanan v. Kentucky, supra, 483 U.S. at 421-24, 107 S.Ct. at 2916-19. The court stated that "with [the defendant] not taking the stand, the ...