STATE OF CONNECTICUT v. FREDDY T.*
(AC 41755)
Appellate Court of Connecticut
Argued May 11—officially released October 6, 2020
DiPentima, C. J., and Lavine and Bright, Js.**
* In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to identify the child or others through whom her identity may be ascertained. See General Statutes § 54-86e. Moreover, in accordance with federal law; see 18 U.S.C. § 2265 (d) (3) (2018); we decline to identify any party protected or sought to be protected under a protective order or a restraining order that was issued or applied for, or others through whom that party’s identity may be ascertained. ** The listing of judges reflects their seniority status on this court as of the date of oral argument.
The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.
All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the latest version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative.
The syllabus and procedural history accompanying the opinion as it appears in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.
Syllabus
Convicted, after a jury trial, of two counts of risk of injury to a child in violation of statute (
Procedural History
Substitute information charging the defendant with one count of the crime of sexual assault in the first degree and two counts of the crime of risk of injury to a child, brought to the Superior Court in the judicial district of Fairfield, geographical area number two, and tried to the jury before Pavia, J.; verdict of guilty of two counts of risk of injury to a child; thereafter, the state entered a nolle prosequi as to the charge of sexual assault in the first degree; subsequently, the court, Pavia, J., rendered judgment in accordance with the verdict, from which the defendant appealed to this court. Reversed; new trial.
Melissa E. Patterson, assistant state’s attorney, with whom, on the brief, were Josephy T. Corradino, state’s attorney, John C. Smriga, former state’s attorney, and Colleen P. Zingaro, senior assistant state’s attorney, for the appellee (state).
Jennifer B. Smith filed a brief for the Connecticut Criminal Defense Lawyers Association as amicus curiae.
Opinion
LAVINE, J. The defendant, Freddy T., appeals from the judgment of conviction, rendered after a trial to a jury, of two counts of risk of injury to a child in violation of
The following facts and procedural history are relevant to this appeal. On or about October 10, 2015, the defendant allegedly engaged in sexual acts with his then five year old daughter (child). The defendant allegedly kissed her and touched her vagina and “butt.” The child reported the defendant’s actions to her grandmother, who called the police on October 19, 2015. The
On October 23, 2015, the child was taken to the Center for Family Justice (center), which provides forensic interview services in sexual assault cases, where she met with Brenda Concepcion, a licensed clinical social worker and forensic interviewer, who conducted the forensic interview that is at issue in the present case. During the interview, the child identified the defendant as her father and disclosed several instances of his sexual conduct, including vaginal and anal penetration. Following the forensic interview, Concepcion recommended that the child receive mental health and psychiatric therapy services and have a forensic medical examination.2
The defendant was arrested on December 10, 2015. On December 28, 2015, the defendant was charged in a long form information with one count of sexual assault in the first degree in violation of
At trial, the following witnesses testified: Officer Laura Azevedo-Rasuk, Della-Giustina, Concepcion, the child, Detective Jessi Pizarro, and Danielle Williams.3 Concepcion testified both before and after the child testified.
Prior to the trial, the state requested that the court review a video recording of the forensic interview of the child, indicating that it intended to offer portions of it during the trial pursuant to the medical diagnosis and treatment exception to the hearsay rule. The defendant objected on the grounds that the exception did not apply because medical treatment had concluded and that the purpose of the interview was investigative rather than medical. After Concepcion’s initial testimony, the court heard argument on the state’s motion and ruled that portions of the video recording were admissible. After the child testified, portions of the video of the forensic interview were shown to the jury.
The jury found the defendant guilty of both counts of risk of injury to a child. On the charge of sexual assault in the first degree under
On appeal, the defendant’s dispositive claim is that the trial court abused its discretion by admitting into evidence portions of the forensic interview of the child conducted by Concepcion. We agree.
We begin with the standard of review. “To the extent [that] a trial court’s admission of evidence is based on an interpretation of [our law of evidence], our standard of review is plenary. . . . We review the trial court’s decision to admit . . . evidence, if premised on a correct view of the law, however, for an abuse of discretion. . . . The trial court has wide discretion to determine the relevancy of evidence . . . . Thus, [w]e will make every reasonable presumption in favor of upholding the trial court’s ruling[s] . . . . In determining whether there has been an abuse of discretion, the ultimate issue is whether the court . . . reasonably [could have] concluded as it did.” (Internal quotation marks omitted.) Weaver v. McKnight, 313 Conn. 393, 426, 97 A.3d 920 (2014).
“[E]videntiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. . . . In a criminal case, [w]hen an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful . . . .” (Citations omitted; footnote omitted; internal quotation marks omitted.) State v. Jordan, 329 Conn. 272, 287–88, 186 A.3d 1 (2018). “[W]hether [an improper ruling] is harmless in a particular case depends upon a number of factors, such as the importance of the witness’ testimony in the [defendant’s] case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. . . . Most importantly, we must examine the impact of the . . . evidence on the trier of fact and the result of the trial. . . . [T]he proper standard for determining whether an erroneous evidentiary ruling is harmless should be whether the jury’s verdict was substantially swayed by the error. . . . Accordingly, a nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict.” (Internal quotations marks omitted.) State v. Fernando V., 331 Conn. 201, 215, 202 A.3d 350 (2019).
The following additional facts inform our analysis. Della-Giustina testified that the purpose of her physical examination of the child on October 19, 2015, was “to evaluate and address any urgent or acute needs such as bleeding or medical conditions that are obvious.” She conducted a “head to toe” examination but only a “very cursory” examination of the child’s vaginal and rectal area. She could not perform an extensive examination of those parts of the child’s body because the child would not allow it. Despite this “quick
Thereafter, when Concepcion conducted the forensic interview of the child on October 23, 2015, a multidisciplinary team comprised of Detective Michael Cantrell, Kechia Sadler and Vanessa Torres from the department, and Kayte Cwikla-Masas and Katherine Azana from the Child Advocacy Center/Center for Family Justice, observed the interview on a monitor.6 Prior to the interview, members of this team provided Concepcion with information regarding the allegations against the defendant.7 Concepcion testified on direct examination that the purpose of a forensic interview is “to obtain more information for the investigation.” With respect to the present case, Concepcion testified that the purpose of the interview was to help the multidisciplinary team determine how and if the investigation should go forward. The interview was of interest to multiple parties, including the department and the police. According to Concepcion, part of her responsibility was to provide recommendations for further treatment for the child on the basis of the interview. Concepcion prepared a written report of the interview that was placed into evidence, which included a referral for follow-up mental and physical treatment and examination.
Conception also testified that a forensic interview typically is utilized in cases involving allegations of abuse of young children. The interview facilitates a setting in which the child feels safe and comfortable talking. She testified that forensic interviewers at the center are trained to use an open-ended, rapport-building approach and to take into account the more limited focus of younger children. Interviewers set ground rules such as telling children that they can speak freely and that they should tell the interviewer if they do not understand something. In particular, Concepcion does not “use the words true or not true all the time but [tells] the child if you don’t know an answer, just say I don’t know.” At the beginning of her interview with the child, Concepcion informed the child that “[she] could say whatever [she] want[ed] in this room because [she was] not in trouble with [her].” In addition, she told the child that “we talk about things that are in this room we talk about things that are true and we talk about safe, being safe.” During the course of the interview, Concepcion utilized anatomically correct dolls and diagrams of male and female bodies, inviting the child to identify and describe various body parts. During the interview, the child disclosed details of the defendant’s abuse of her, including vaginal and anal penetration. At one point, Concepcion asked the child the name of her dad, and the child gave a different name. When asked again, the child gave the name “Freddy.” At the conclusion of the interview, Concepcion
The day before evidence began, following jury selection, the state made an oral proffer of evidence regarding portions of the video recording of the forensic interview under the medical diagnosis and treatment exception to the hearsay rule.9 In its proffer, the state referenced State v. Griswold, 160 Conn. App. 528, 127 A.3d 189, cert. denied, 320 Conn. 907, 128 A.3d 952 (2015), asserting that the proffered
At trial, the child testified that, during the interview, she had answered questions from Concepcion about male and female body parts. The child testified that she had told Concepcion that the defendant had touched certain parts of her body. The state then offered the previously identified portions of the forensic interview video and the court admitted them as a full exhibit pursuant to its prior ruling. During her trial testimony, the child identified body parts she previously had identified during the forensic interview, naming eye, mouth, hand, belly, butt, and hair. She responded in the affirmative when the assistant state’s attorney asked her whether “anybody touch[ed] those parts,” but responded in the negative when asked, “Did anybody put anything inside those parts?” The assistant state’s attorney repeated the answer, and the child responded “[y]es.”12 The child also testified that
The child testified that the defendant had touched her on the “inside,” pointing to the vaginal area on a diagram held by the assistant state’s attorney. The defendant also touched the child on her butt, “inside.” The child’s clothes were on, and the touching was “[i]n [the child’s] clothes.” The child denied that she had seen the defendant with his clothes off. The jury then viewed the portions of the forensic interview, which contained the child’s descriptions of the defendant’s vaginal and anal penetration. The child confirmed that she talked to Concepcion.
On appeal, the defendant claims that at trial the court improperly admitted portions of the forensic interview under the medical diagnosis and treatment exception to the hearsay rule because the interview focused on aiding the police investigation and not on medical treatment for the child. The defendant argues that medical treatment for the child had concluded by the time the interview was conducted.14 The state argues pursuant to the standard set out in Griswold, as well as Estrella J.C., that the child’s statements in response to Concepcion’s questions were reasonably pertinent to obtaining medical treatment even though the interview also aided in the investigation. At trial, the state relied on Concepcion’s testimony that the interview involved “multiple interests,” that Concepcion referred the child for psychological and physical follow-up treatment, and that Conception asked the child if she had someone to talk to if she felt unsafe. On this basis, the state argues that it had laid a proper foundation to admit the child’s statements on the extent and specifics of the defendant’s assault under
We begin our analysis by setting forth the relevant legal principles and applicable standard of review. “We review the trial court’s decision to admit evidence, if premised on a correct view of the law . . . for an abuse of discretion. . . . In other words . . . after a trial court has made the legal determination that a particular statement is or is not hearsay, or is subject to a hearsay exception . . . it [becomes] vested with the discretion to admit or to bar the evidence based upon relevancy, prejudice, or other legally appropriate grounds related to the rule of evidence under which admission is being sought.” (Internal quotation marks omitted.) State v. Griswold, supra, 160 Conn. App. 536.
“Hearsay is an out-of-court statement offered for the truth of the matter asserted and generally is inadmissible. . . . The rules of evidence, however, recognize that certain out-of-court statements warrant an exception to the general rule that hearsay constitutes inadmis-sible evidence.” (Citations omitted.) State v. Michael T., 194 Conn. App. 598, 611, 222 A.3d 105 (2019). The medical diagnosis and treatment exception to the hearsay rule is codified in
“[S]tatements may be ‘reasonably pertinent’ . . . to obtaining medical diagnosis or treatment even when that was not the primary purpose of the inquiry that prompted them, or the principal motivation behind their expression.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Griswold, supra, 160 Conn. App. 552–53. “Although [t]he medical treatment exception to the hearsay rule requires that the statements be both pertinent to treatment and motivated by a desire for treatment . . . in cases involving juveniles, our cases have permitted this requirement to be satisfied inferentially.” (Citation omitted; internal quotation marks omitted.) State v. Telford, supra, 108 Conn. App. 441–42; see id., 443 (child’s testimony supported inference that she understood statements to social worker were for treatment purposes); see also State v. Donald M., 113 Conn. App. 63, 71, 966 A.2d 266 (2009) (interviewer’s statements supported inference that child understood interview’s medical purpose, even though child testified
In Manuel T., this court defined the test for determining the admissibility of hearsay statements under
Under our case law, the state need only show that the forensic interview had a medical purpose that the declarant reasonably understood. See State v. Manuel T., supra, 186 Conn. App. 61–62; State v. Abraham, supra, 181 Conn. App. 713. This court on numerous occasions has upheld the admission of forensic interviews where the purpose of the interview was primarily investigative. See, e.g., State v. Manuel T., supra, 186 Conn. App. 63–64; State v. Eddie N.C., supra, 178 Conn. App. 173; State v. Estrella J.C., supra, 169 Conn. App. 77–78; State v. Griswold, supra, 160 Conn. App. 552–53. The issue in the present case, therefore, turns on whether the five year old child, the declarant, understood the interview to have a medical purpose. See State v. Manuel T., supra, 62.
We conclude that the state has not demonstrated, on the basis of the interview’s content, that the child understood that Concepcion’s interview was for medical treatment purposes. Our review of the interview supports the conclusion that the basic purpose of the interview was “to obtain more information for the investigation,” as Concepcion testified. Because the medically-oriented content was in fact de minimis, the child would not have understood the interview to be anything but investigative, if she understood its purpose at all. The interview was focused on determining what had happened, until its conclusion where Concepcion conveyed “brief safety messages” to the child, and referred her for psychiatric therapy and a further forensic examination following the interview. The state argued before the trial
Second, the fact that the child had been examined at the hospital prior to the time the forensic interview was conducted weighs against the inference that the child understood the interview’s purpose to be medical. Della-Giustina examined the child when she was taken to the hospital. Afterward, Alvarez-Quiles, the hospital social worker, interviewed the child. Concepcion’s interview occurred four days after the child had completed her immediate medical treatment. Moreover, the subsequent forensic medical examination at Yale-New Haven Hospital occurred eleven days after the interview. Thus, the timing of examinations does not support an inference that the child would have understood that the forensic interview was in the service of continuing medical treatment.
In its ruling, the court in the present case relied on State v. Estrella J.C., supra, 169 Conn. App. 56, and State v. Eddie N.C., supra, 178 Conn. App. 147, both of which are distinguishable from the present case on the basis of not only interview content but also contextual timing. In Estrella J.C., this court noted, in upholding the forensic interview’s admission under the hearsay exception, that the child was undergoing treatment for post-traumatic stress disorder resulting from the defendant’s acts at the time the interview occurred and that “the physical examination of the [child] was informed by the forensic interview,” given that the pediatric nurse practitioner
In Eddie N.C., the trial court admitted statements from the child, A, made to a clinical social worker at the Yale Child Sexual Abuse Clinic. State v. Eddie N.C., supra, 178 Conn. App. 169. A preliminary interview was conducted “so that [Lisa] Pavlovic [a physician] could fully understand the nature of the complaint before her examination.” Id., 168. The trial court determined that “the fact that at least one purpose of the interview was to aid . . . Pavlovic in her follow-up examination of A was sufficient to qualify A’s statements under the medical diagnosis and treatment exception.” Id., 169. The follow-up examination’s purpose was “to determine whether A’s injuries had healed.” Id., 168. This court found the statement was admissible because “the purpose of [Monica] Vidro’s interview was to help . . . Pavlovic better understand the nature of A’s complaint so that . . . Pavlovic could conduct a thorough medical examination of A.” Id., 173. In the present case, Concepcion’s referral did not occur until after the conclusion of the forensic interview, and the facts do not support an inference that the child was aware that she was being interviewed to determine whether and what kind of medical and psychological follow-up treatment may be recommended. Moreover, the child in the present case made no physical or emotional complaints to Conception. Unlike Concepcion’s interview, the interview in Eddie N.C. demonstrated a clearer inference that the child in that case would have understood it pertained to medical treatment.
Finally, the focus on the understanding of the declarant that there is a medical purpose for the interview remains even when the declarant is a young child. The law in Connecticut is that, although statements made by young children are admissible under the medical diagnosis and treatment exception to the hearsay rule, the principle holds true that “[s]tatements made [in sexual assault cases] . . . reciting history, causation, and the identity of the person causing the injury should be scrutinized to ensure that they are generated for the proper purpose, namely treatment and not litigation.” E. Prescott, Tait’s Handbook of Connecticut Evidence (6th Ed. 2019) § 8.17.4 (b), p. 569, citing State v. DePastino, 228 Conn. 552, 566 n.10, 638 A.2d 578 (1994). “Because of the difficulty of ascertaining a child’s subjective understanding of the purpose for which the statement was made, the court should identify indicia of reliability before admitting such statements.” E. Prescott, supra, § 8.17.2, p. 567, citing State v. Juan V., 109 Conn. App. 431, 445-47, 951 A.2d 651 (2000); State v. Donald M., supra, 113 Conn. App. 71. Consequently, our case law recognizes that the age of a child sometimes necessitates allowing an inference, rather than direct evidence,
Having demonstrated that the trial court abused its discretion when it admitted portions of the forensic interview of the child into evidence, we turn to whether the court’s error was harmful. Examining the evidence here, we cannot conclude, with a fair assurance, that the trial court’s abuse of discretion did not substantially affect the jury’s verdict. In the present case, the state’s case turned on the credibility of the five year old child. Given the absence of witnesses to the alleged sexual assault and the lack of physical evidence relating to it, the state relied on the video of the forensic interview and the testimony of the child to establish the facts of the charged conduct. In cases of sexual assault or risk of injury to a child, a lack of “corroborating physical evidence or any witnesses to the alleged sexual assaults“; State v. Fernando V., supra, 331 Conn. 216; weakens the state’s case. See id., 216–17 (finding exclusion of defense witness testimony harmful where case turned on the testimony of state’s witness); see also State v. Favoccia, 306 Conn. 770, 809, 51 A.3d 1002 (2012) (describing sexual assault cases that turn on complainant’s credibility as not particularly strong); State v. Grenier, 257 Conn. 797, 807–808, 778 A.2d 159 (2001) (“state’s case rested entirely on S’s credibility . . . inasmuch as S’s version of the events provided the only evidence of the defendant’s guilt, the state’s case was not particularly strong“). In the present case, Della-Giustina testified that the child’s intimate parts appeared normal, with no evidence of trauma, and the state did not produce any witnesses to the abuse apart from the child herself. Contra State v. Eddie N.C., supra, 178 Conn. App. 174 (noting that any error was harmless because “the overall strength of the state’s case was high,” with physical evidence of abuse and corroborating witness who testified to defendant’s abuse).
This was a close case. The jury was deadlocked on the count of sexual assault and found the defendant guilty of only the charges of risk of injury to a child. See State v. Favoccia, supra, 306 Conn. 813 (“[I]t is highly significant that . . . the jury subsequently was unable to reach a verdict on the charge of sexual assault in the second degree, but found the defendant guilty of two counts of risk of injury. That circumstance alone 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.“) As in Favoccia, the jury’s inability to reach a verdict on the sexual assault charge in the present case supports the conclusion that the forensic interview’s admission played a significant role in the jury’s verdict of guilty of two counts of risk of injury to a child.
Finally, the video portions of the forensic interview were a significant factor in the jury’s determination, because the portions provided the most damaging evidence of the defendant’s alleged abuse of the child.17 The jury heard testimony about the interview from both Concepcion and the child, and then had an opportunity to watch the interview itself. The portions of the interview shown to the jury contained the child’s allegations to Concepcion, which were not fully corroborated by her trial testimony. In the forensic interview, the child stated that the defendant had put his penis inside her vagina and butt “a lot.” At trial, however, the child initially denied that anyone had put anything inside her body, before changing her answer to “yes.” Similarly, she denied that anything had ever happened between her and the defendant in the bedroom, before changing her answer to the affirmative. The child testified that the defendant had touched her on her pants, always on top of her clothes, but subsequently testified that he had done so “in my clothes.” She testified that the defendant had touched her on the inside of her vagina and “butt,” but denied that she had seen him without clothing. The child’s testimony at trial was not only contradictory at times, but it also was inconsistent with the statements she made in the forensic interview. The child gave conflicting answers about whether touching had occurred and where, or what type of touching occurred. The video portions of the forensic interview, which were made available to the jury, provided the only support for the state’s theory that the defendant penetrated the child as well as introducing the new allegation that the defendant removed the child’s clothing. We
We conclude that the trial court’s decision to admit the excerpts of the child’s forensic interview under the medical diagnosis and treatment exception to the hearsay rule constituted an abuse of discretion that was not harmless, because the evidence substantially affected the jury’s verdict. We, therefore, reverse the judgment of conviction.
The judgment is reversed and the case is remanded for a new trial.
In this opinion the other judges concurred.