STATE v. FERNANDO V.
No. 170 Conn. App. 44
Appellate Court of Connecticut
December 6, 2016
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STATE v. FERNANDO V. - DISSENT
ROBINSON, C. J., with whom KAHN, J., joins, dissenting. I respectfully disagree with the conclusion in part III of the majority opinion, which concludes that the Appellate Court properly determined that the trial court‘s exclusion of testimony from P, the
I begin by noting my substantial agreement with the factual
Given these arguments, P‘s proposed testimony must be understood in the context of the earlier testimony of the state‘s expert witness, Larry M. Rosenberg, who is the clinical director of the Child Guidance Center of Southern Connecticut, an outpatient mental health clinic. Rosenberg had testified about the concept of delayed disclosure of sexual abuse. In connection with that topic, Rosenberg also testified about behavioral signs of the trauma resulting from sexual assault—such as
Although P‘s testimony might have been crucially important standing alone, its relative value in this case is significantly diminished for two reasons. First, whether a person shows behavioral signs of having been sexually abused is by no means definitive evidence on that point. As Rosenberg testified during both direct and cross-examination, some sexual assault victims might show those trauma signs relatively soon, while other victims might never show any of those trauma signs. Some victims might experience no change in their ability to function in the near term, and might not manifest those signs until many years later, if at all.
Second, and more significantly, P‘s excluded testimony regarding the absence of these signs was consistent with that of B and G during both direct and cross-examination. B testified initially on direct examination that she had enrolled in college after graduating high school, and that she had maintained a grade point average of approximately 2.9 at both schools. She also testified that she had not experienced any lengthy absences from, or other problems at school or work because of behavioral or psychological reasons, noting that her only extended absence from high school was the result of a medical problem. B testified further that she was an active member of the college band, and that nothing had prevented her from pursuing that activity. B also contradicted her direct examination testimony that she was unable to have male friends, admitting that she had boyfriends during high school and that the defendant had not forbidden her from seeing them or having them as guests in the house.
G testified similarly, stating that there had been no changes in B‘s personality around the ages of twelve or thirteen years old, when the abuse escalated from improper touching to intercourse, because “she was always a little shy.” Although G had testified on direct examination that the defendant was strict with respect to B‘s grades, and preferred her to go out with female rather than male friends, she also confirmed that B had boyfriends during high school, and that the defendant had not interfered with those relationships. Moreover, while G testified that, in the year prior to the defendant‘s arrest in this case, B had acted “more withdrawn and . . . that she would stay in her room,” she then testified on cross-examination that B‘s activities had not changed, as she continued to enjoy reading and playing the flute from middle school into college. G also testified that B had always had a “timid” demeanor since coming to the United States as a child, and that it had not worsened during high school, although she would “stay in her room more often, locked up.”
The testimony of B and G provided ample support for the defendant‘s theory of the case, even without P‘s similar testimony on point. In addition to emphasizing inconsistencies in the time, place, and nature of B‘s allegations,5 the
Defense counsel argued further that there was “no testimony by [B] that there was any behavioral changes. There‘s no testimony from [B] that she experienced any depression. No testimony from her that she experienced any suicidal ideations. No testimony that she experienced any eating disorders. No testimony from her that she had any violent tendencies. And more importantly, no evidence that after the alleged arrest of [the defendant], in 2011, did any of this come up. Which, as the State‘s own expert [witness] said, commonly is something that occurs. There‘s no evidence of any therapy or counseling ever received by [B].”
Turning to G‘s testimony, defense counsel argued that it was inconsistent with that of B, positing that G had “stated that [the defendant] did not like [B] talking to boys, but admitted [B] had boyfriends since freshman year in high school. And there was no evidence by [G] that the defendant ever objected to [B] having those relationships with those boys.” Defense counsel further emphasized that G‘s “testimony is noncorroborative of [B‘s] in that she didn‘t see any behavioral issues with [B]. Claimed [B] was always a bit timid, even since she came to the [United States] and there was no alleged inappropriate behavior. And that there was really no change. Didn‘t see any of [B‘s] grades slip. Didn‘t see [B] stop playing the flute. And never saw any inappropriate behavior, whatsoever, during the entire time that they were together, between [B] and [the defendant].”
Defense counsel then compared this testimony by B and G to Rosenberg‘s testimony: “[Rosenberg] stated that it is more common to have some behavioral issues in alleged victims, especially in their adolescent years, and especially after the disclosure is made. He said it‘s common. It happens. But there‘s no evidence of any of that.”
Similarly, defense counsel also argued that the testimony of Vicki Smetak, a Norwalk Hospital pediatrician who had examined B after her disclosure, was not corroborative. The defense argued that Smetak had made “no physical findings of assault, whatsoever,” and had stated “that there was no suicidal ideation or extreme behavioral
I disagree with the majority‘s conclusion that, because “P‘s testimony was necessary for the jury to assess B‘s credibility,” it therefore “cannot be harmless error to remove from the fact finder the very tools by which to make a credibility determination . . . .” (Internal quotation marks omitted.) That conclusion is belied by the record in the present case, insofar as the jury had numerous tools by which it could assess the credibility of B‘s allegations, all of which were well highlighted by the defendant‘s closing argument. Specifically, the cross-examination of B and G, along with Smetak‘s testimony, gave the defendant ample support for his behavioral arguments, even without P‘s testimony. Further, the persuasive value of the behavioral arguments is diminished by Rosenberg‘s testimony that signs of sexual abuse may or may not be present in victims in any event, rendering P‘s testimony not a significant addition to the evidence in the defendant‘s favor.
I also disagree with the majority‘s reliance on the lack of physical evidence in the present case in support of its conclusion that the improper exclusion of P‘s testimony was harmful because the state‘s case was not strong. I acknowledge that, “[a]lthough the absence of conclusive physical evidence of sexual abuse does not automatically render the state‘s case weak where the case involves a credibility contest between the victim and the defendant . . . a sexual assault case lacking physical evidence is not particularly strong, especially when the victim is a minor.” (Citation omitted.) State v. Ritrovato, supra, 280 Conn. 57. In the present case, however, the state‘s case was significantly strengthened by other circumstantial evidence that corroborated B‘s testimony—namely, that D, B‘s half brother and the son of the defendant, had seen B and the defendant acting secretively on two separate occasions.6 Specifically, D, who was fourteen years old at the time of trial, testified that, on one occasion, he went to his parents’ bedroom looking for the defendant, and that no one answered when he knocked on the door. When the door finally opened, he saw the defendant and B together in the room, with B putting her belt back on at that time. D also mentioned this incident in a state-ment to the police that the trial court admitted into evidence pursuant to Whelan.6 In that document, D averred the following: “What I remember is that I went to look for my dad but the room was locked. I was just about to walk away and then I heard him call me and I just saw my sister putting on her belt.” (Emphasis added.)
D‘s statement to the police also averred the following regarding a second incident: “I was . . . looking for my dad and my sister told me he was in the garage. I just said ok because I already checked there. So I told my friend to walk downstairs and
The harmlessness of the exclusion of P‘s testimony is even more apparent when the present case is considered in juxtaposition with those cases in which the central issue was the complainant‘s credibility and this court has found harmful evidentiary error to exist. First, P‘s proffered testimony did not pertain directly to the veracity of the complainant or the allegations themselves, but only to whether B had shown certain behaviors that Rosenberg had testified might—or might not be—
Finally, I observe there was no report of jury deadlock in this case to “indicate that the fact finder itself did not view the state‘s case against the defendant as particularly strong.” State v. Angel T., 292 Conn. 262, 294, 973 A.2d 1207 (2009); see also State v. Favoccia, supra, 306 Conn. 813–14 (concluding that deadlock followed by split verdict “indicates that the case was a close one in the eyes of the jury, making it more likely that the improper evidence might have tipped the balance“); State v. Angel T., supra, 294 (“[t]he jury‘s deadlock in the present case renders more troubling its split verdict, following the Chip Smith charge, because the split verdict suggests that the jury had doubts concerning the victim‘s credibility as a general matter, as it failed to credit her testimony about the defendant‘s earlier attempts to molest her“). Instead, the jury in the present case returned a verdict of guilty on all counts after deliberating for several hours. In contrast to deadlock reports, this rapid verdict suggests that the trier of fact did not view this case as particularly close, an
Because the exclusion of P‘s testimony was, at most, harmless error, I conclude that the Appellate Court improperly reversed the trial court‘s judgment of conviction. I would, therefore, reverse the judgment of the Appellate Court and remand the case to that court with direction to affirm.
Accordingly, I respectfully dissent.
Notes
In declining to address the state‘s cumulativeness argument, the majority concludes that the state failed to preserve it before the trial court and, thus, may not now present it as an alternative ground on which to affirm the judgment of the trial court, insofar as whether evidence is cumulative is a discretionary determination, stating that “[w]e cannot determine whether the trial court abused an exercise of discretion that it neither made nor was asked to make.” In declining to reach the state‘s claim, the majority links our well established cases holding that challenges to evidentiary rulings are limited to the grounds asserted before the trial court; see, e.g., State v. Miranda, 327 Conn. 451, 464–65, 174 A.3d 770 (2018); and that “[o]nly in [the] most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court. . . . This rule applies equally to [alternative] grounds for affirmance.” (Internal quotation marks omitted.) Perez-Dickson v. Bridgeport, 304 Conn. 483, 498–99, 43 A.2d 69 (2012).
This approach, however, appears to be in at least some tension with the “well established [proposition] that this court may rely on any grounds supported by the record in affirming the judgment of a trial court.” State v. Burney, 288 Conn. 548, 560, 954 A.2d 793 (2008). This principle has often been applied to evidentiary errors, including cases where the alternative ground was not first raised before the trial court. See, e.g., id., 560–61 (upholding trial court‘s decision to admit testimony about victim‘s demeanor because, although it was improperly admitted as prior consistent statement, it was properly admissible under “alternative approach” that it was not hearsay); State v. Gojcaj, 151 Conn. App. 183, 199 and n.9, 92 A.3d 1056 (2014) (concluding that trial court properly admitted log record into evidence because it was not hearsay, despite fact that parties agreed it was hearsay and issue before court was applicability of business records exception), cert. denied, 314 Conn. 924, 100 A.3d 854 (2014). The keys here appear to be whether there was any prejudice to the appellant, and also whether the alternative ground “is one [on which] the trial court would have been forced to rule in favor of the appellee.” (Internal quotation marks omitted.) State v. Cameron M., 307 Conn. 504, 526–27, 55 A.3d 272 (2012) (overruled in part on other grounds by State v. Elson, 311 Conn. 726, 748 n.14, 91 A.3d 862 [2014]), cert. denied, 569 U.S. 1005, 133 S. Ct. 2744, 186 L. Ed. 2d 194 (2013); see also Vine v. Zoning Board of Appeals, 281 Conn. 553, 568–69, 916 A.2d 5 (2007).
In its brief, the state does not attempt to tackle this apparent conflict in the case law, citing an Appellate Court decision, State v. Pierce, 67 Conn. App. 634, 642 n.5, 789 A.2d 496, cert. denied, 260 Conn. 904, 795 A.2d 546 (2002), as its most recent support for the proposition that “a reviewing court may affirm the trial court‘s judgment on a dispositive [alternative] ground where there is support in the record.” In the absence of a request by the state, I similarly decline to resolve this apparent conflict, particularly given my conclusion with respect to harmlessness, and the fact that, as the majority acknowledges, the state did not squarely raise its cumulativeness claim before the Appellate Court and that, in this “certified appeal, the focus of our review is not the actions of the trial court, but the actions of the Appellate Court. We do not hear the appeal de novo. The only questions that we need consider are those squarely raised by the petition for certification, and we will ordinarily consider these issues in the form in which they have been framed in the Appellate Court.” (Internal quotation marks omitted.) State v. Saucier, 283 Conn. 207, 221, 926 A.2d 633 (2007). This means that, in the absence of “extraordinary circumstances“; State v. Torrence, 196 Conn. 430, 434 n.5, 493 A.2d 865 (1985); we “ordinarily do not review claims not raised” before the Appellate Court. State v. Nunes, 260 Conn. 649, 658, 800 A.2d 1160 (2002). Put differently, “a claim that has been abandoned during the initial appeal to the Appellate Court cannot subsequently be resurrected by the taking of a certified appeal to this court.” (Internal quotation marks omitted.) State v. Saucier, supra, 223; see id., 222–23 (declining to consider in certified appeal defendant‘s claim that excluded statement was not hearsay because, although he raised that argument before trial court, he “subsequently failed to mention that claim in his brief to the Appellate Court, which focused solely on his argument that the statement was hearsay offered to prove the truth of the matter asserted . . . but was admissible pursuant to the state of mind exception“); see also State v. Samuels, 273 Conn. 541, 555–56, 871 A.2d 1005 (2005) (declining to consider in certified appeal alternative grounds for admission of evidence when state did not raise and brief them before Appellate Court).
I do, however, note this conflict in the case law for future consideration because of the prudential concerns that it continues to raise with respect to the public‘s interest in maintaining legally correct judgments and avoiding the prospect of costly retrials, with concerns of ambuscade minimized because we would be upholding the trial court‘s judgment, rather than upsetting it. See Perez-Dickson v. Bridgeport, supra, 304 Conn. 538–39 (Palmer, J., concurring). I suggest that these prudential concerns are particularly magnified with respect to evidentiary rulings—many of which are made quickly in the heat of trial, with minimal opportunity for research or reflection. See id., 541–42 (“I believe that the public and institutional interest in promoting judicial economy and the finality of judgments substantially outweighs any possible benefit that may be achieved by declining to review an alternative ground for affirmance solely as punishment for the appellee‘s failure to have raised the claim in the trial court“). Given my conclusion with respect to harmlessness, however, I leave this issue to another day.
Although I acknowledge that D was required to have his memory refreshed and that his trial testimony was sufficiently inconsistent to support admission of his statement to the police under State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86 (1986); see footnote 6 of this dissenting opinion; this court nevertheless is obligated, for purposes of appellate review, to treat this evidence as credited by the finder of fact, which could have viewed the apparent inconsistency as a product of his understandable difficulty in testifying at a trial wherein his father stood charged with sexually assaulting his sister, given his good relationship with both. Cf. State v. Senquiz, 68 Conn. App. 571, 577, 793 A.2d 1095 (“[w]hile the victim may have sometimes put forth confused, apparently forgetful, or even contradictory testimony, it was solely up to the jury to determine the weight of each part of the victim‘s testimony“), cert. denied, 260 Conn. 923, 797 A.2d 519 (2002).