76 Conn. App. 425 | Conn. App. Ct. | 2003
Opinion
The defendant, Daniel Cameiro, appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), one count of risk of injury to a child in violation of General
The jury reasonably could have found the following facts. The victim was bom on June 28,1986.
The victim did not disclose the sexual assault until June 28, 1998, after he was admitted to Saint Mary’s Hospital in Waterbury for acute mental status changes. While at the hospital, the victim confided to his stepsister, who did not live with his family, that the defendant
Police Detective David Bromley attempted to contact the defendant, who was then residing in Texas, by telephone on seven different occasions in April, 2000, to discuss the allegations. The defendant did not return these calls. In June, 2000, the defendant placed two calls to the victim and the victim’s mother. During the first telephone call, the defendant asked the victim’s mother why the police were looking for him and then threatened to do harm to her if he was arrested. During the second telephone call, both the victim and the victim’s mother were listening when the defendant threatened to harm them both after stating that “I heard that I did something to [the victim].” Additional facts will be set forth as necessary.
I
The defendant’s first claim is that his constitutional rights to due process were violated by the court’s failure to strike, sua sponte, the testimony of three expert witnesses of the state that supported the credibility of the victim. Specifically, the defendant argues that the testimony should have been stricken because an expert cannot testify as to her opinion of a witness’ credibility. This claim was unpreserved at trial and, therefore, the defendant seeks review under both State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and the plain error doctrine. We decline to review this claim.
Due to his failure to preserve this claim through proper objection, the defendant, in order to prevail, must do so under either Golding or the plain error doctrine. We conclude that the defendant cannot succeed under either avenue.
The defendant’s claim was squarely addressed in State v. Toccaline, 258 Conn. 542, 783 A.2d 450 (2001). In that case, our Supreme Court held that an unpreserved claim alleging that an expert witness improperly testified regarding the credibility of a victim fails under the second prong of Golding. Id., 550. The facts of Toccaline were similar to those currently before us. There, a licensed clinical social worker testified that it was his opinion that a sexual assault victim’s testimony was truthful. Id., 548. Our Supreme Court stated that “[i]n essence, the defendant attempts to put a constitutional tag on a nonconstitutional evidentiary ruling. . . . We previously have stated that the admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved. . . . The trial court’s exercise of discretion in admitting expert testimony is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law. . . . The errors claimed by the defendant in the present case are simply evidentiary in nature.” (Citations omitted; internal quotation marks omitted.) Id.; see also State v. Grenier, 257 Conn. 797, 806-807, 778 A.2d 159 (2001) (admission of expert testi
The defendant also argues that the admission of the testimony of Bhargava, Guest and Massey constituted plain error pursuant to Practice Book § 60-5.
We conclude that, in this case, the admission of the testimony of Bhargava, Guest and Massey does not amount to plain error. Assuming, without deciding, that the testimony was improper, “[w]e do not agree that the admission of [the] testimony undermined the fairness or integrity of the trial afforded to the defendant. Further we see nothing in the record that leads us to conclude that the verdict constituted manifest injustice to the defendant or will lead to diminished confidence in our judicial system.” Id. (no plain error in admission of expert testimony vouching for credibility of sexual assault victim).
The defendant’s second claim is that the court abused its discretion in allowing the state to amend the information after voir dire had begun to change the date on which the sexual assault allegedly occurred. Specifically, the defendant argues that the state is required to provide a time frame with a distinct beginning and clear end. See State v. Saraceno, 15 Conn. App. 222, 237, 545 A.2d 1116, cert. denied, 209 Conn. 823, 824, 552 A.2d 431, 432 (1988). The absence of this time frame, the defendant contends, prejudiced his rights because he was forced to disclose as his alibi that he was incarcerated for a portion of 1998, a disclosure which impaired his credibility, and because he was unable to question the venirepersons about whether the fact that he had been incarcerated would affect their impartiality in the case.
The following facts are necessary for our resolution of this claim. On July 5, 2001, the state filed a substitute long form information. In it, the state alleged that the defendant had committed sexual assault in the first degree “on a date between January 1, 1999 and June 27, 1999.” In a subsequent amended information, this
The defendant was also charged in the July 5, 2001 substitute long form information with violating § 53-21 “on a date in 1999.” This time frame was changed to the preceding year “on a date in approximately June 1998” in the amended information. In its bill of particulars, the state again informed the defendant, as it did in the sexual assault count, that the victim did not have a good sense of time and that the evidence may show that the assault occurred within a relatively short time before the victim’s initial disclosure in June, 1998.
The defendant objected to the motion to amend the information and the bill of particulars, arguing that he was not provided with a specific time frame for which he had to defend. In response to the amended information, the defendant filed a notice of alibi six days later on July 24,2001, alleging that he was incarcerated when the sexual assault was committed. Evidence at trial demonstrated that the defendant was incarcerated from May 5 until September 29, 1998.
Practice Book § 36-18 provides: “After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to
The defendant argues that the court abused its discretion in permitting an amended information in. which the state failed to provide a time frame with a distinct beginning and clear end during which the sexual assault was allegedly committed, thus violating his constitutional rights. We are not persuaded. Our Supreme Court has held that “[t]he state has a duty to inform a defendant, within reasonable limits, of the time when the offense charged was alleged to have been committed. The state does not have a duty, however, to disclose information which the state does not have. Neither the sixth amendment [to] the United States constitution nor article first, § 8, of the Connecticut constitution requires that the state choose a particular moment as the time of an offense when the best information available to the state is imprecise.” (Internal quotation marks omitted.) State v. Laracuente, 205 Conn. 515, 519, 534 A.2d 882 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 913 (1988). Furthermore, the constitutional notice requirement “does not obligate the state to provide the defendant with a specific date of the alleged offense, when time is not a material element of the crime charged or when a precise date is unavailable.” State v. Bergin, 214 Conn. 657, 674, 574 A.2d 164 (1990).
We have consistently held that the state is permitted to charge that a defendant committed a crime “on or about” a certain date.
Our analysis of Saraceno reveals that there we confronted an information which alleged various sexual assaults that occurred on uncertain dates over a three year period. State v. Saraceno, supra, 15 Conn. App. 226 n. 1. For example, in the seventh count, the Saraceno information set out that “on uncertain dates between November 1980 and May 1983,” a three year period
Here, the language of the charging documents revealed that the state was not alleging that the sexual assault occurred on one specific date. The amended information alleged that the sexual assault occurred “on a date in approximately June 1998 . . . .’’(Emphasis added.) The bill of particulars indicated that the sexual assault occurred “within a relatively short time” before the victim’s initial disclosure in June, 1998. Records disclosed to the defendant and the prosecutor’s remarks prior to trial informed the defendant that the victim made the disclosure on June 28, 1998, when the victim was being treated at Saint Mary’s Hospital in Waterbury. See State v. McDougal, 241 Conn. 502, 522, 699 A.2d 872 (1997) (“ ‘[t]his court has on numerous occasions adverted to sources extrinsic to the specific count or information to determine whether the defendant was sufficiently apprised of the offense charged’ ”). Furthermore, the defendant was made aware through the bill of particulars that the victim did not have a good sense of time and would be imprecise in his recollection of when the sexual assault occurred.
The defendant, therefore, had adequate notice that the sexual assault allegedly was committed on a date reasonably near June 28, 1998. The state argued to the jury that the sexual assault occurred on a date in late April or early May, 1998. These dates are not outside the bounds of “a relatively short time” before the vie
We next turn to whether the court abused its discretion in allowing the state to amend the information after voir dire had begun. Practice Book § 36-18 “is primarily a notice provision. Its purpose is to ensure that the defendant has adequate notice of the charges against which he must defend. ... It is the defendant’s burden to provide a specific showing of prejudice resulting from the state’s delay in providing notice of the charge against which [he] must defend.” (Internal quotation marks omitted.) State v. Phillips, 67 Conn. App. 535, 543, 787 A.2d 616 (2002). “It is within the trial court’s discretion to allow an amendment to the information. On appeal, review of the trial court’s decision to permit an amendment to the information is one of abuse of discretion. . . . Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Citation omitted; internal quotation marks omitted.) State v. Nicholson, supra, 71 Conn. App. 595.
The defendant first claims that he was prejudiced by the amended information because the amorphous nature of the charging document language concerning the date of the offense allowed the state to move back the date of the offense to defeat his alibi. We disagree. The information and bill of particulars were filed on July 18, 2001. Not until six days later did the defendant file notice of his alibi. The state did not file a subsequent amended information after the defendant disclosed his alibi to allege a different time period.
“Because the bill of particulars limits the state to proving that the defendant committed the offense in substantially the manner described, we do not require the state to limit the date in the information more narrowly than the evidence available warrants, even if the
The defendant also argues that he was prejudiced by the amended information because he was precluded from questioning the venirepersons about his alibi of incarceration and what effect, if any, it would have on their impartiality. This does not amount to prejudice of a substantive right. “A bare assertion of prejudice is not sufficient to support a claim of prejudice. . . . The defendant must provide a specific showing of prejudice in order to establish that he was denied the right of due process of law . . . .” (Citation omitted; internal quotation marks omitted.) State v. Ryan, 53 Conn. App. 606, 621, 733 A.2d 273 (1999). “Such a showing amounting to a deprivation of his constitutional right to adequate notice of the charges against him is not made, however, merely by establishing that the presen
In summary, the defendant does not contest (1) that the state had, or could have obtained, more precise information or purposefully withheld information concerning the dates of the sexual assault, (2) that time is an essential element of the crimes charged or (3) that the state can charge a lengthy time frame where it only has imprecise information from a mentally handicapped, youthful victim.
Because the defendant was provided with adequate notice of the time frame dining which the sexual assault allegedly was committed and has failed to establish any prejudice resulting from the state’s amendments, we conclude that the court did not abuse its discretion in allowing the state to amend its information.
The judgment is affirmed.
In this opinion the other judges concurred.
In accord with court policy to protect the privacy rights of victims in matters concerning sexual assault and injury or risk of injury to a child, we decline to identify the victim or others through whom her identity may be disclosed. See General Statutes § 54-86e.
The curative instruction was as follows: “Counsel just brought to my attention and it — it did strike me when it happened, that [Guest] testified that she, in fact, believed the victim in this case, [the victim].
“I am instructing you that that is not an area of consideration for Ms. Guest. You are the ultimate finders of fact, and that means you make the ultimate decision whether or not the victim is believable. It’s not up to [Guest] to make that determination, and you’re not to accept the fact that she believed [the victim] as binding on you.”
Practice Book § 60-5 provides in relevant part that “[t]he court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. ...”
The defendant in his brief argues that this claim should be reviewed under Golding even though he did not specifically object to the amendment on the ground that it prejudiced his ability to voir dire the venirepersons. The state asserts, pursuant to State v. Jones, 46 Conn. App. 640, 653 n.9, 700 A.2d 710, cert. denied, 243 Conn. 941, 704 A.2d 797 (1997), that we should not review this claim because the defendant failed to object to the court on the ground that his voir dire rights were violated, but rather objected only on the ground of inadequate notice. We conclude, however, that this claim was properly preserved for appellate review. “The defendant objected and excepted to the late amendment on the ground of lack of notice when the issue was first raised. The impaired voir dire claim is not an essential component or specification of the objection to an on-trial amendment that violates Practice Book § [36-18] but rather constitutes the type of prejudice or harm to the defendant that results from the lack of notice.” State v. Welch, 25 Conn. App. 270, 274, 594 A.2d 28 (1991), rev’d on other grounds, 224 Conn. 1,615 A.2d 505 (1992). We, therefore, review the defendant’s claim.
Because voir dire began on July 6, 2001, the state was required to seek judicial permission to file this amended information on July 18, 2001. See State v. Pickering, 38 Conn. App. 536, 542, 662 A.2d 804, cert. denied, 235 Conn. 907, 665 A.2d 905 (1995).
In the present case, the state possessed imprecise information concerning the sexual assault due to the victim’s age and mental impairments. The victim was eleven years old when the sexual assault occurred and had been diagnosed as having borderline intelligence and mild problems with memory functions. We have noted “that in a case involving the sexual abuse of a very young child, that child’s capacity to recall specifics, and the state’s concomitant ability to provide exactitude in an information, are very limited. The state can only provide what it has. This court will not impose a degree of certitude as to date, time and place that will render prosecutions of those who sexually abuse children impossible. To do so would have us establish by judicial fiat, a class of crimes committable with impunity.” State v. Saraceno, supra, 15 Conn. App. 237. We have also recognized that the mental infirmity of a victim may also lead to imprecise dates for the commission of an offense. See State v. Blasius, 15 Conn. App. 289, 291, 543 A.2d 790 (1988), affd, 211 Conn. 455, 559 A.2d 1116 (1989). The force of these rules is strengthened where mental impairments are added to the youth of the victim.
See State v. Saraceno, supra, 15 Conn. App. 236 (time is not essential ingredient of crime of sexual assault).
Subsequent to our decision in Saraceno, other cases have affirmed its holding. In State v. Mancinone, 15 Conn. App. 251, 257-58, 545 A.2d 1131, cert. denied, 209 Conn. 818, 551 A.2d 757 (1988), cert. denied, 489 U.S. 1017, 109 S. Ct. 1132, 103 L. Ed. 2d 194 (1989), we held that a bill of particulars that alleged a time frame of “on divers dates between August 1982 and November 1984” did not deprive the defendant of his constitutional right to adequate notice. In State v. Blasius, 211 Conn. 455, 456, 559 A.2d 1116 (1989), our Supreme Court held that an information alleging that the offenses occurred “on or about a date between January 1, 1985 through June 22, 1985” was sufficient to survive the defendant’s motion to dismiss the information based on a claim of a violation of his constitutional rights to notice.