20 Conn. App. 737 | Conn. App. Ct. | 1990
The defendant appeals from the judgment of conviction, after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70, sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), and risk of injury to a child in violation of General Statutes § 53-21. The court imposed consecutive sentences of fifteen, eight and seven years, for a total effective sentence of thirty years imprisonment.
The defendant claims that the trial court erred (1) in ■granting the state’s motion to quash a subpoena for
In the first and second counts of the information, the state alleged that between January, 1983, and March, 1985, the defendant engaged in vaginal intercourse by force, and in vaginal intercourse with a person under the age of sixteen. In the third count, the state alleged that, between the same dates, the defendant willfully caused and permitted a child under the age of sixteen to be placed in a situation where her morals where likely to be impaired. In response to the defendant’s motion, the state filed a bill of particulars, stating, inter alia, that as to the first two counts, the state intended to prove repeated acts of vaginal intercourse by the defendant with the victim, and as to the third count, repeated acts of vaginal intercourse and sexual contact.
The jury could reasonably have found the following facts. The victim is the defendant’s daughter. Between January, 1983, and March, 1985, when the victim was between six and eight years old, five separate incidents occurred. In the first incident, the defendant pulled up the victim’s nightgown and tickled her vagina with his fingers. When she asked the defendant to stop, he told her to be quiet because “I have to concentrate.” In the next three incidents, the defendant tied the victim to a bed with clothesline and engaged in vaginal inter
I
The defendant first claims that the trial court erred in granting the state’s motion to quash the defendant’s subpoena duces tecum for certain police records regarding the victim’s maternal uncle, who had been arrested for sexually assaulting his own children. The charges against the uncle were subsequently nolled, and the records pertaining to those charges were statutorily erased pursuant to General Statutes § 54-142a (c).
It is undisputed that the charges against G had been nolled, and that the records were erased pursuant to
Such erasure does not, however, necessarily create a shield that is impermeable to a claim of constitutional deprivation. See State v. Douglas, supra. We conclude that, although a criminal defendant may in appropriate circumstances make a showing sufficient to trigger an in camera review of statutorily erased records, the defendant in this case did not make such a showing.
In State v. Douglas, supra, this court considered the tension between the criminal records erasure statute and the constitutional right of confrontation through cross-examination. We held that, on the facts of that case, it was error for the trial court to decline to review in camera the previous trial testimony of two state’s witnesses in the separate trial of an alleged coparticipant in the crimes charged. The earlier trial had resulted in an acquittal of the alleged coparticipant. The purpose of the review we ordered was to determine whether that prior testimony should have been disclosed to the defendant. Id., 117-18.
Although in Douglas we did not require a preliminary showing of inconsistency in order to trigger the court’s in camera review; id., 116; it was implicit in the facts of that case that the statutorily shielded transcript directly related to the crimes charged against the defendant, since that transcript contained the testimony of two of the state’s witnesses regarding those same crimes. Furthermore, the court in Douglas drew heavily on State v. Pierson, 201 Conn. 211, 514 A.2d 724 (1986), and State v. Esposito, 192 Conn. 166, 471 A.2d 949 (1984). In those cases, the court, in resolving the tension between the right of confrontation and the psychiatric privilege, required a showing of a reason
In (State v. James, 211 Conn. 555, 579, 560 A.2d 426 (1989), our Supreme Court considered whether the trial court erred in refusing to review in camera the school records of the victim of the crimes charged. The court held that, although it was error for a trial court to refuse “to examine documents in camera where a sufficient foundation has been laid to indicate a reasonable likelihood that they contain material relevant to the case or useful for impeachment of a witness”; id.; the defendant had not made a showing “sufficient to establish a reasonable ground to believe that [the school records] may have contained anything related to the issues at trial or the credibility of [the victim].” Id.
Reading Douglas and James together, we conclude that, in order to trigger an in camera review of records shielded by General Statutes § 54-142a (c), the defendant must first establish some reasonable likelihood that the records contain information relevant to the case. Here, the defendant claimed that the records were relevant to a claim that someone other than he had committed the crimes charged. Evidence of such third party culpability is a component of a defendant’s due process right to present a defense. State v. Echols, supra. For third party evidence to be admissible, however, it must directly connect the third party to the crime, it must be more than evidence of the third party’s motive to commit the crime, and it must be more than enough to raise a bare suspicion of such third party culpability. Id., 392. Thus, in this case, in order for the defendant to trigger an in camera review of the records,
The crimes charged against the defendant were alleged to have occurred between January, 1983, and March, 1985. The records sought by the defendant concerned the arrest of G on or about November 20,1982, for sexually assaulting his own children. Thus, G’s alleged conduct with his children preceded by at least approximately one and one-half months the beginning of the time period of the charges brought against the defendant. The defendant represented that at some unspecified period of time “near to when these allegations [against the defendant] arose,” G lived in the same house as the victim “or around the comer and was with her a lot.” He did not lay any foundation for a reasonable indication that the victim was falsely accusing her father in order to protect her uncle, or that no assaults had taken place and she was mimicking her cousins’ allegations against her uncle. Moreover, the familial relationship between the victim and the defendant precludes any suggestion of mistaken identity. Compare State v. Echols, supra. Finally, the defendant claimed only that the records might disclose a possible similarity to the crimes charged, sufficient only to raise a possibility that G committed those crimes. We conclude, therefore, that the defendant failed to establish a reasonable likelihood that the records would directly connect G, rather than him, to the crimes charged.
II
The defendant next claims that the trial court erred in its charge to the jury on the crime of risk of injury
The defendant’s argument that the court improperly expanded the scope of behavior proscribed by the statute ignores the distinction drawn by our Supreme Court in State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963), and reaffirmed in State v. Schriver, supra, 464, that § 53-21 proscribes “ ‘two general types of behavior ... (1) deliberate indifference to, acquiesence in, or the creation of situations inimical to the minor’s moral or physical welfare . . . and (2) acts directly perpetrated on the person of the minor and injurious to his moral or physical well-being.’ ” Here, the defendant was charged with the first part of § 53-21, which does not require a physical touching. State v. Schriver,
The cases upon which the defendant relies; State v. Zwirn, supra; State v. Schriver, supra; and State v. Pickering, 180 Conn. 54, 428 A.2d 322 (1980); all involved the judicial construction of the second part of § 53-21 and are, therefore, inapposite. The trial court properly limited its charge to the first part of the statute, and its instruction excluding the element of a deliberate touching was a proper statement of the law. Since the court gave a proper instruction on the first part of the statute, the defendant’s claim that the instruction improperly expanded the scope of the charging documents also must fail.
Furthermore, even if we assume that the court erred by failing to include the requested instruction, because the conduct that was specified by the state in the bill of particulars and presented by the state at trial involved sexual acts perpetrated on the victim, rather than the creation of a harmful situation, the error was harmless. Although a trial court’s failure to include an essential element of an offense in its jury instructions is error, such an error is harmless if the record establishes beyond a reasonable doubt that it did not contribute to the verdict. State v. Price, 205 Conn. 616, 619-21, 534 A.2d 1196 (1987).
The bill of particulars specified repeated acts of sexual intercourse and sexual contact with the victim as the particular conduct constituting the risk of injury offense. The state’s evidence involved four incidents of intercourse, and one incident of sexual contact. The jury convicted the defendant of both counts of sexual assault, indicating that it found the alleged acts of intercourse proven. The evidence regarding the one touching incident was not susceptible of an interpretation
The defendant also asserts a related claim that the jury could have been misled into believing that acts other than a deliberate touching in a sexual and indecent manner were sufficient to find the defendant guilty, in light of certain evidence that the defendant had shown the victim Playboy magazines. We disagree.
The court, in its instructions, fully explained the offense of risk of injury as it applied to the victim’s testimony. That instruction made absolutely no reference to the showing of any magazines. Because the victim could not testify as to the exact dates of the various assaults, the state sought to elicit from her certain testimony surrounding each of the events in order to show that she was testifying to multiple assaults, rather than one assault. The showing of the magazines was simply part of that evidence.
In addition, the evidence regarding the magazines was wholly superfluous to a conviction of risk of injury to a child. The jury found the defendant guilty of sexual assault in the first degree and sexual assault in the second degree. In order to have found the defendant guilty of these charges, the jury necessarily found that, under the first count, he had forcible intercourse with the victim and, under the second count, he had sexual intercourse with the underage victim. These findings alone were sufficient to sustain the conviction for risk of injury to a child. See State v. Pickering, supra, 65-66. Where the jury found such acts of'sexual intercourse
Ill
The defendant next claims that the trial court erred in failing to instruct the jury on the credibility of a child witness. He claims that it was harmful error for the court not to give a specific cautionary charge on the credibility of a child witness under State v. Anderson, 152 Conn. 196, 205 A.2d 488 (1964). It is no longer mandated under Connecticut law that a court give a special child witness credibility instruction whenever it is requested by a defendant. State v. James, supra, 566-71, overruling State v. Anderson, supra. Such a “cautionary comment upon the evidence”; State v. James, supra, 571; is now clearly within the discretion of the trial court.
The defendant contends that the trial court abused its discretion by declining to give such an instruction. He claims that the instruction should have been given because the victim gave different versions of the incidents to others who provided constancy of accusation testimony at trial, because the trial court referred to the victim’s testimony in its instructions, and because the victim was allowed to testify without a finding of competency, pursuant to General Statutes § 54-86h.
The first two arguments advanced by the defendant do not distinguish between the possible infirmities of a child’s testimony and that of an adult, and, therefore,
We also reject the defendant’s argument that the court was required to give such an instruction in this case because of the absence of a preliminary competency hearing, pursuant to General Statutes § 54-86h. The victim in this case was almost twelve years old at the time of trial, approximately the same age as the victim in State v. James, supra, where our Supreme Court found no abuse of discretion by the trial court in failing to give such an instruction. Also, as in James, the court, in its charge, referred several times to the victim’s age and instructed the jury fully on the credibility of witnesses in general. See id., 567. Furthermore, the victim’s testimony was corroborated by expert testimony that she had an enlarged vaginal opening consistent with repeated penetration by a penis, and by the physical evidence of the ropes that were retrieved from the sewer where the victim claimed to have discarded them. In addition, the state presented constancy of accusation testimony from two adults experienced in counselling sexually abused children.
IV
The defendant next claims that the trial court improperly commented on the evidence during its charge to the jury. He claims that the court summarized the evi
Only part of the defendant’s claim was properly preserved in the trial court, namely, that the court referred to the evidence in a manner not suggested by the charging documents.
The trial court’s instructions referred to specific portions of the victim’s testimony as it related to the three counts in the information. The defendant claims that the trial court erred by framing the facts in its instructions differently from the state’s theory of the case based on its accusatory pleadings. In the bill of particulars, the state alleged, for the first two counts,
The trial court in its instructions provided one particular incident for each count of the information. Regarding the first count, the court summarized the victim’s testimony concerning an incident where the defendant engaged in intercourse with her after tying her to a bed. Regarding the second count, the court summarized the victim’s testimony that the defendant engaged in intercourse with her without tying her. Regarding the third count, the court summarized the victim’s testimony that the defendant pulled up her nightgown and tickled her vagina with his fingers.
The court incorporated the victim’s testimony in its instructions in order to explain the elements of the crimes with which the defendant was charged. See State v. James, supra, 588; State v. Storlazzi, 191 Conn. 453, 464-67, 464 A.2d 829 (1983). “It is the duty of the trial court to refer to testimony in so far as it may be necessary to assist the jury to a clear understanding of the relationship of the testimony to the material facts. State v. Nims, [supra]. ‘The charge must go beyond a bare statement of accurate legal principles to the extent of indicating to the jury the application of those principles to the facts claimed to have been proven.’ State v. Sumner, 178 Conn. 163, 170-71, 422 A.2d 299 (1979).” State v. Gallman, 16 Conn. App. 433, 435, 547 A.2d 932 (1988); see State v. Cazimovski, 20 Conn. App. 190, 192, 565 A.2d 254 (1989).
There was no variance between the state’s evidence and its allegations in the bill of particulars. Regarding the first count, the criminal conduct stated in the bill of particulars, namely, forcible vaginal intercourse, coincided with the victim’s testimony as referred to in the court’s instructions. Likewise, under the second
V
The defendant next claims that the trial court erred in denying his request to submit the bill of particulars to the jury. He argues that the failure to submit the bill of particulars denied him due process of law and a fair trial because the jury could not be expected to reach a proper verdict if it were not aware of the full extent of the charges. The defendant’s sole support for this claim is Practice Book § 833, which provides: “When any bill of particulars is ordered, an amended or substitute information shall be filed incorporating its provisions.” We disagree.
The defendant’s argument is fatally flawed because it is based on the proposition that where the state files a bill of particulars, the information ipso facto becomes “two documents instead of one.” This is incorrect. “ ‘The bill of particulars does not become part of the [information]. See 4 Wharton, Criminal Law and Procedure § 1870. See generally 41 Am. Jur. 2d, Indictments and Informations, §§ 163-165.’ State v. Glass, 107 R.I. 86, 92, 265 A.2d 324 (1970).” State v. Roque, 190 Conn. 143, 154-55, 460 A.2d 26 (1983). The purpose of a bill of particulars is not to inform the jury of the nature of the charges against the defendant; it is to supply the accused and the court with additional information concerning an accusation to ensure that the defendant has received fair notice of the charges against him. Id., 154; State v. Cole, 8 Conn. App. 545, 554, 513 A.2d 752 (1986).
Practice Book § 858 requires the trial court to submit to the jury “(l)[t]he . . . information upon which the defendant was tried; and (2) [a]ll exhibits received in evidence.” There is no requirement under § 858 that a separate bill of particulars, which has not been incorporated into an amended information, also be submitted to the jury. Indeed, to do so could lead to jury confusion since the jury would have to consolidate and reconcile the two documents during its deliberations. See United States v. Radetsky, 535 F.2d 556, 565 (10th Cir. 1976) (submission to jury of separate bill of particulars is undesirable).
VI
The defendant next claims that the imposition of consecutive sentences for sexual assault in the first degree in violation of General Statutes § 53a-70 (a),
“[Ujnder the Blockburger
The defendant also claims that the court improperly imposed sentence by attempting to compensate for the state’s having undercharged him. The court in its discretion imposed consecutive sentences that were within the applicable statutory limits. Once it is determined that a defendant was protected “against multiple punishments for the same offense”; North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969); the fact that the trial court imposed consecutive rather than concurrent sentences for different offenses did not violate his double jeopardy rights.
The defendant’s final claim is that the trial court erred in denying a continuance for sentencing to permit further presentencing diagnostic evaluation pursuant to General Statutes § 17-244.
The court granted the defendant’s motion for a § 17-244 exam after his conviction, and he was examined by Merrill Rotter, a psychiatrist. Rotter testified that the defendant should be referred to Whiting Forensic Institute (Whiting) for further evaluation to determine if he was dangerous to himself. The defendant requested that Rotter’s suggestion be followed and that he be referred to Whiting for further evaluation. The court denied the request, finding that the defendant was not dangerous to himself or others, and therefore did not fall within any of the categories of persons specified in General Statutes § 17-239
The defendant argues that the court abused its discretion because the basis of its decision was that the defendant did not fall within any of the categories of persons eligible for care and treatment at Whiting under General Statutes § 17-239. He argues that this reasoning was improper because his request was for further evaluation and not for final commitment. We conclude, however, that the court did not abuse its discretion by declining to commit the defendant to Whiting for further evaluation.
Where the court has sufficient medical information from which it can make an informed judgment of the defendant’s mental condition, the court may properly deny his request for a § 17-244 diagnostic examination. State v. Gates, 198 Conn. 397, 404-405, 503 A.2d 163 (1986). Indeed, an initial examination pursuant to § 17-244 is required only “if it appears that [the defendant] is mentally ill and dangerous to himself or others.” See footnote 10, supra. That determination may take into account whether the defendant would be dangerous to others in a prison setting. State v. Gates, supra 404. Even the presence of some degree of mental illness does not require that the court “ ‘blindly and automatically implement the statutory machinery’ providing for psychiatric examinations”; id., 405, quoting Hall v. United States, 410 F.2d 653, 657 (4th Cir. 1969); prior to imposing sentence. A fortiori, whether the court should order a second examination under § 17-244 is left to the court’s discretion.
In this case, the court found that the defendant was not dangerous to himself or others. The defendant does not claim that this finding is clearly erroneous. Further, the court had sufficient information, including the defendant’s testimony at trial, and Rotter’s testimony and report, to determine whether the defendant should be committed to Whiting rather than to a correctional facility.
There is no error.
In this opinion the other judges concurred.
General Statutes § 54-142a (c) provides in pertinent part: “Whenever any charge in a criminal case has been nolled in the superior court . . . if at least thirteen months have elapsed since such nolle, all police and court records and records of the state’s or prosecuting attorney or the prosecuting grand juror pertaining to such charge shall be erased.”
Although the defendant did not request the trial court to review the records in camera, and instead sought direct access to them, during argu
General Statutes § 53-21 provides: “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 § 54-86h provides: “No witness shall be automatically adjudged incompetent to testify because of age and any child who is a victim of assault, sexual assault or abuse shall be competent to testify without prior qualification. The weight to be given the evidence and the credibility of the witness shall be for the determination of the trier of fact.”
At trial, the defendant excepted to the court’s failure to “state the facts as stated in the state’s response to bill of particulars dated July 7, 1988. I believe that . . . the facts to be proved should be those alleged in response to the bill of particulars.” In a virtually identical exception, the defendant claimed that the court improperly “chose three of the five incidents to which [the victim] has testified, one for each of . . . [the three offenses with which he was charged] and gave the jury the impression that each separate act was applied to a separate charge, that the three tie up situations were sexual assault one and that the incident after [the victim] had moved out of the house was sexual assault two and the touching was the risk of injury, and I don’t think that is the allegation in this case, and I think it is improper to have stated it that way.”
General Statutes § 53a-70 (a) provides in pertinent part: “A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person . . .
General Statutes § 53a-71 (a) provides in pertinent part: “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 . . .
See footnote 3, supra.
Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
General Statutes § 17-244 provides in pertinent part: “(a) Except as provided in section 17-255 any court prior to sentencing a person convicted of an offense for which the penalty may be imprisonment in the Connecticut Correctional Institution at Somers, or of a sex offense involving (1) physical force or violence, (2) disparity of age between an adult and a minor or (3) a sexual act of a compulsive or repetitive nature, may if it appears to the court that such person is mentally ill and dangerous to himself or others . . . order the commissioner to conduct an examination of the convicted defendant by qualified personnel of the institute. Upon completion of such examination the examiner shall report in writing to the court. Such report shall indicate whether the convicted defendant should be committed to the diagnostic unit ol' the institute for additional examination or should be sentenced in accordance with the conviction. ... If the report recommends additional examination at the diagnostic unit, the court may, after a hearing, order the convicted defendant committed to the diagnostic unit of the institute for a period not to exceed sixty days, except as provided in section 17-245 provided the hearing may be waived by the defendant.”
General Statutes § 17-239 provides: “The Whiting Forensic Institute shall exist for the care and treatment of (1) mentally ill patients, confined in facilities under the control of the department of mental health, who require care and treatment under maximum security conditions, (2) persons convicted of any offense enumerated in section 17-244 who, after exami