19 Conn. App. 445 | Conn. App. Ct. | 1989
The defendant appeals from the judgment of conviction, rendered after a jury trial, of five counts of risk of injury to a child, General Statutes § 53-21,
Prior to trial, the state moved, pursuant to General Statutes § 54-86g,
At a hearing held on the state’s motion, the only person to testify was John Leventhal, a pediatrician, who at the time of the hearing had been associated with the department of pediatrics at Yale-New Haven Hospital for eight years and had served as the director of its child abuse committee for four to five years.
Following the hearing, the trial court granted the state’s motion
After the jury returned its verdicts in this case, but before sentencing, our Supreme Court handed down its decision in State v. Jarzbek, 204 Conn. 683, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988). In Jarzbek, our Supreme Court held that, in criminal prosecutions involving the alleged sexual abuse of children of tender years, videotaping the testimony of a minor victim outside the physical
Following the release of the opinion in Jarzbek, the defendant filed a motion for mistrial and a motion for a new trial or in arrest of judgment. The defendant claimed that the evidence produced at the hearing on the state’s pretrial motion to videotape the testimony of the minor victims did not establish, by clear and convincing evidence, a compelling need to present the
Because the trial court made the findings mandated by Jarzbek, our review is limited to determining whether there is any evidence to support those findings. We adopt the position of our Supreme Court in Jarzbek, wherein the court stated: “We express no opinion as to whether the evidence presently on the record is sufficient to satisfy the state’s burden of proving, by clear and convincing evidence, a compelling need to videotape the testimony of the minor victim outside the physical presence of the defendant. It is not the role of this court to make such a factual determination. It is in the sole province of the trier of fact to evaluate expert testimony, to assess its credibility, and to assign it a proper weight. Johnson v. Fuller, 190 Conn. 552, 556, 461 A.2d 988 (1983); State v. Gordon, 185 Conn. 402, 409, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982); State v. Perez, 182 Conn. 603, 610, 438 A.2d 1149 (1981). In the present circumstances, the trial court must determine what of the expert testimony it should reject or accept. Gorra Realty, Inc. v. Jetmore, 200 Conn. 151, 161, 510 A.2d 440 (1986).” State v. Jarzbek, supra, 706-707. We will not retry the issue of whether there was a compelling need to videotape the victims’
Our review of the transcript of Leventhal’s testimony reveals that, although there are general references to the effect that young victims of sexual assault are emotionally traumatized by having to testify in a courtroom setting in the presence of the accused abuser, Leventhal also testified that such a setting would have a negative effect on each individual victim’s ability to testify in a trustworthy manner. Leventhal testified that he had personally interviewed two of the children and reviewed the hospital charts of the others. He stated his opinion that all of the victims would be “much more likely” to give a more complete and accurate account of what had happened to them if they were to testify outside the presence of the accused and the jury, in a room other than a courtroom. We cannot say that the factual finding of the trial court in this case, that there existed a compelling need to videotape the victims’ testimony, was clearly erroneous.
We are not limited, however, to reviewing only the evidence before the trial court at the time of the ruling. Because the defendant’s fundamental constitutional right to confront the witnesses against him is implicated, we may consider all the evidence in the rec
In a related claim, the defendant asserts that the trial court erred in not affording defense counsel an opportunity to meet privately with each victim. He cites State v. Jarzbek, supra, 705 n.10, in support of this argument.
As a general rule, witnesses are not required to meet with defense counsel. Nor is the state affirmatively required to make its witnesses available to defense
We do not believe the Jarzbek majority intended to alter the rules of discovery in criminal cases by conferring an unlimited right on defense counsel to compel a pretrial meeting with the state’s witnesses, particularly child victims of sexual abuse. The court’s remark, when construed in the light of long and well established rules governing discovery in criminal cases, is more properly read as a reminder by the court that, even when child victims are to be videotaped at a time and place removed from the remainder of the trial, the defendant must be afforded the same opportunity for meeting with such witnesses as otherwise exists under our rules of practice.
In any event, the record in this case fails to indicate whether the defendant asked to meet with the victims before they testified, whether the victims were willing to be interviewed by defense counsel and, if so, whether the state interfered with such a meeting. Neither the record in this case nor the applicable law supports this claim of error.
There is no error.
In this opinion the other judges concurred.
“[General Statutes] Sec. 53-21. injury or risk of injury to, or impairing morals OF, children. Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”
“[General Statutes] Sec. 53a-71. sexual assault in the second degree: class c felony: nine months not suspendable. (a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is (1) under sixteen years of age, or (2) mentally defective or mentally incapacitated to the extent that he is unable to consent to such sexual intercourse, or
“(b) Sexual assault in the second degree is a class C felony for which nine months of the sentence imposed may not be suspended or reduced by the court.”
“[General Statutes] Sec. 54-86g. testimony of victim of child abuse. COURT MAY ORDER TESTIMONY TAKEN OUTSIDE COURTROOM. PROCEDURE. (a) In any criminal prosecution of an offense involving assault, sexual assault or abuse of a child twelve years of age or younger, the court may, upon motion of the attorney for any party, order that the testimony of the child be taken in a room other than the courtroom in the presence and under the supervision of the trial judge hearing the matter and be televised by closed circuit equipment in the courtroom or recorded for later showing before the court. Only the judge, the attorneys for the defendant and for the state, persons necessary to operate the equipment and any person who would contribute to the welfare and well-being of the child may be present in the room with the child during his testimony. The attorneys and the judge may question the child. The defendant may observe and hear the testimony of the child and may consult with his attorney, but the court shall ensure that the child cannot hear or see the defendant.
“(b) If the court orders the testimony of a child to be taken under subsection (a) of this section, the child shall not be required to testify in court at the proceeding for which the testimony was taken.”
We note that the trial court had before it, in addition to the testimony of Leventhal, the arrest warrants relating to the defendant in this case. The warrants described the actions of the defendant and the fearful reactions of the victims.
The remarks of the trial court with regard to its ruling on the state’s motion pursuant to General Statutes § 54-86g were as follows:
“The Court: Well, first of all, essentially, I agree with Mr. Clifford’s interpretation of the statute and, that is, the legislature appears to have already performed the factor of the balancing test. It determined that the court need not perform a balancing of the defendant’s interests versus the victims’ interests and so on. The only requirement is for the court to order the testimony to be taken in a closed setting to determine that there is a criminal prosecution, that the offense involved is assault, sexual assault or abuse of the child, and that the child victim in any of those cases is twelve years of age or younger. If those factors are met, the court may exercise its discretion without evidence, without any specific findings, without any balancing of rights. The court, obviously, need only be persuaded that it is appropriate in a particular case. And I suppose that is essentially a determination that somehow the judicial process will be better served if the testimony of the victims is taken in that contrived way. The court, obviously, may also consider whether or not there will be any adverse impact on the victims because the focus of the statute certainly seems to be to protect the victims or to enhance the likelihood that they will testify accurately and completely. I think that the court would be free to simply enter a decision without stating reasons, because the legislature has not required any. But I would certainly prefer to do that. And I think the reasons why both of those tests are met, why the court is persuaded that judicial process would be better served in this case by the procedure requested by the state, and further, that there is risk of some adverse impact on the victims, those conclusions are based on taking judicial notice of the warrant and on Dr. Leventhal’s testimony. Clearly, all the children are under twelve years of*449 age now and, obviously, were at the time when all these acts were alleged to have occurred. Clearly, it is apparent from the warrant and from the doctor’s testimony that the defendant stood, according to those allegations, in some sort of position of friendship and trust or confidence with the victims and their families. I think the court can infer from that the victims would have some ambivalent feelings at best about the defendant. There were threats, apparently, from the warrant, and attempts on particular dates on at least two of the victims. And I note that one of the children was crying when he was telling about the version of the facts as he understood them. The doctor has testified that there is a significant risk of injury to children in this age group from testifying in a regular court setting, and that there is a greater likelihood of the victims in this age group to testifying accurately and completely in a closed setting rather than in a regular courtroom setting. I think the court can virtually take judicial notice of the fact that a child in this age group would be more relaxed and comfortable and less intimidated and overwhelmed in a controlled setting outlined in the state’s motion than in a regular court setting with a jury of eight people and possible spectators, attorneys, investigators, court stenographer, and the judge sitting in a robe on a bench above the witness, and that kind of setting would be intimidating to a child in this age group. For all those factors, all those reasons, the facts in the warrant, and so on, and the inferences that can be drawn from those, plus Dr. Leventhal’s testimony specifically about two of the victims and about the others, by reason of reviewing their charts, the court concludes that there is a greater likelihood in this case that all the victims would be giving a more accurate and complete testimony if they were to do it in a closed setting, and there is a significant risk of emotional injury to the children if they were to attempt their testimony in a regular courtroom setting. So, the court is persuaded that the preferable procedure in this case is to have the testimony of the victims given in the setting outlined in the state’s motion, that is, the controlled setting by means of a videotape. For all those reasons, the state’s motion is granted.”
The trial court ruled as follows:
“The Court: Well, at the time of the hearing on the videotaping, obviously we were operating without the benefit of knowing what guidelines our Supreme Court would establish in Jarzbek. However, realizing that there were not clear guidelines at that point in the statute, I did attempt to ask some additional questions which satisfied the court that there was a compelling need for videotaping in this case. I feel that the evidence that was presented would meet the test of Jarzbek, even though we didn’t know specifically what test we were trying to meet at that point. For those reasons, the court will deny the motion for mistrial and the motions for a new trial. And I realize that this matter will probably be tested in the appellate courts. However, I think that it will meet Jarzbek.”
In State v. Jarzbek, 204 Conn. 683, 705 n.10, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988), our Supreme Court noted that, “[i]f, after an evidentiary hearing, the trial court finds a compelling need to exclude the defendant from the witness room during the taping of a minor victim’s testimony, defense counsel must be afforded a full opportunity, prior to the videotaping session, to meet privately with the victim in order to discuss the events in question.”