*1 case, plaintiff represent was attempting to her- attorney. self and was not an Our Chief Justice has publically self-represented addressed the plight par- ties in difficult times represent economic forced to themselves and the system need for our court to ensure justice.9 that there be grounds, respectfully
On these I dissent. STATE OF CONNECTICUT v. J. DENIS HICKEY
(AC 31222) Lavine, McDonald, Alvord and Js. recognize “I . . longer believe that we . . . have to access is no just making poor people representation legal sure that have I .... believe self-representation need we to address this trend of .... Until that resolved, however, strongly issue is I feel that it is the Judicial Branch’s responsibility justice to ensure that accessible our state courts.” Chief Rogers: Justice, Justice Chase T. The Newman Lecture on Law and Connecti Lawyer, (May/June p. 2010) cut Vol. No. 9 29. *2 officially May 15, Argued released March Kaloidis, Ioannis A. appellant (defendant). *3 Nancy L. Chupak, senior assistant attorney, state’s with whom, brief, on the Shepack, were David state’s attorney, and Dawn Gallo, senior assistant state’s attor- ney, appellee for the (state).
Opinion LAVINE, J. The defendant, appeals Denis J. Hickey, from the conviction, judgment rendered following a jury trial, of one count of sexual assault in the first degree violation of General Statutes 53a-70 (a) (2) § and injury one count of risk of to a child in violation of General Statutes (a) (2). appeal, 53-21 On § the defen- dant (1) claims that the court abused its discretion when it denied his motion for so continuance that he could private obtain counsel and further investigate the charges by the brought state, (2) the improperly admitted evidence of the (a) defendant’s prior, uncharged sexual misconduct against another minor hearsay and (b) pursuant statements to the medical treatment exception, (3) prosecutorial misconduct deprived him a fair trial, the (4) court violated his right against double jeopardy imposing consecutive sentences and (5) the court improperly denied his request to conduct an camera review of the victim’s mental health records. We affirm the judgment trial court. reasonably following could have found the
The with the rest of June, 2001, victim,1 along facts. In The victim was with the defendant. family, her lived to start years old at this time and scheduled five generally in the fall. While defendant kindergarten he “pretty good,” the victim’s two brothers treated very and she “became differently, treated the victim point.” April at Between attached to one defendant] [the stayed family victim’s often at October, 2001, slept in his trailer. with the defendant campground trips, camping digi- one of those During sleeping she was tally penetrated the victim’s anus while up during woke victim (campground incident). defendant was touch- recognized
incident and her.2 ing family and her after the victim December, 2002,
In and her house, the victim moved out the word were to a that included listening song brothers saying word began dancing “sex.” The victim mother, hips. her After the victim’s thrusting “sex” while inappropriate that this was an K.B., explained to her what defen- “Why? Sex is word, victim asked: [the “a this, KB. called Upon hearing to me.” did dant] *4 what presented hotline and of [University Connecticut] depart- thereafter, the just been said to” her. Soon had K.B. and she and families contacted ment of children a report. up videotaped police police set then filed abuse team. multidisciplinary with a child interview by the initial disclosure of abuse K.B. testified that this at the that occurred pertained victim to an incident camp- and not at the incident) (house defendant’s house ground. privacy policy protecting interests of the our of In accordance with injury child, to a we decline and crime of risk
victims of sexual assault may identify through whom the victims’ identities victims or others § 54-86e. be ascertained. See General Statutes defendant, that, although she could she did not see the The victim testified “recognized identify talking his voice.” to her and she him because he multidisciplinary
After the interview with the child team, abuse the victim physical underwent a examina- tion performed Moskal-Kanz, Judith a pediatric nurse-practitioner and forensic medical examiner for Mary’s child at abuse, Hospital Waterbuiy. Saint Moskal-Kanz physical colpos- conducted general copic examination of the genitals. During victim’s examination, repeated spontaneous victim made disclosures that the defendant had touched her areas that Moskal-Kanz was On examining. the basis of the examination, Moskal-Kanz made findings injuries victim had to her vagina pene- “consistent with by repetitive tration” caused friction from sexual abuse. She also testified that the victim’s “anal exam was nor- mal” but that this not “suggest” did anything her usually injury because anal during an sex- “[t]here’s you’re ual unless abuse about talking a rather forceful very repetitive act aor act over a term.” long In victim campground disclosed the incident reported her mother. K.B. later this disclosure to the police. The victim gave videotaped another interview multidisciplinary to a child abuse team. The defendant was charged with sexual assault the first degree risk injury a child in camp- connection ground 6, 2009, incident. On March found the guilty as to both 12, 2009, counts. On June the court sentenced the an defendant to effective term thirty years of imprisonment, suspended twenty after thirty-five years, years probation. appeal This followed. Additional facts will set necessary. forth as
I *5 The defendant claims that the court abused its discre- by tion denying his motion a for continuance (1) allow him investigate more time to charges the and (2) private obtain counsel. We disagree. for request a
“The of whether grant determination court, of the trial is within the discretion a continuance an abuse of appeal will be disturbed on absent and prin- reviewing ... A bound discretion. in of favor [e]very presumption reasonable ciple will court’s discretion proper exercise of trial discretion, an prove an abuse of be made. ... To of a that the trial court’s denial appellant must show . . . are arbitrary. a continuance was There request for a denial of a deciding for when no mechanical tests arbitrary due process. is so as to violate continuance present must be found in the circumstances The answer presented to every case, particularly in the reasons request . . trial at the time the is denied. judge may enter into the court’s the factors “Among request for a considering exercise of discretion contin request are the timeliness of for continuance likely delay impact . . . the uance; length delay witnesses, counsel litigants, opposing on the of the reasons court; perceived legitimacy and the support request timing . . . the proffered in sub the likelihood that the denial would request; stantially ability to defend him impair the defendant’s availability other, adequately equipped self; [and] We are try the case .... prepared counsel where find an of discretion hesitant to abuse especially for made has denied a motion continuance the court omitted; emphasis day (Citations of the trial.” on the marks original; quotation omitted.) internal denied, V., 945, cert. Ross App. 1, 7-8, 953 110 Conn. A.2d 1247 (2008). are relevant following additional facts July 2007, the state filed demand claim. On that the defendant defense, alleged of alibi which notice April point between sexually the victim at some abused report also stated police 2002. The June, April place took between campground incident *6 538
June, prior One week to jury selection, however, 2002.3 information, the state filed the form which long alleged that the abuse not in but in occurred 2002 2001. February just 11, 2009, prior
On jury selection, requested defendant a continuance on two separate grounds. First, the defendant that he argued needed additional time to investigate charges and locate potential in light change witnesses of the date of the abuse from 2001. The defendant argued change “impacts any potential alibi, dates with the although range here, wide of months it would probably impossible to alibi, establish an but it does require part more work on our to establish what took place during opposed calendar 2001 as to 2002.” Addi- tionally, defendant claimed that he was attempting to locate witnesses in Florida who would testify “that this incident could not have year occurred calendar . .” as described . .
Second, the defendant argued that the court should grant him a continuance so that he private could retain counsel. The defendant’s an counsel, public assistant defender, stated that was only days he informed two earlier private defendant’s intention to hire coun- sel. Although yet the defendant had not finalized arrangements with private attorney, the defendant’s argued counsel that the defendant had the ability to private retain attorney attorney and that the was represent him . . . “willing .” Additionally, professional defendant had “a relationship substantial law firm” it “represented because had him at least three different occasions . . .” The defen- dant’s counsel then stated that “[ajnother weeks, few Honor, Your I submit, is not going anyone here, to hurt although originally police family K.B. testified she told the that her camped April had with the between and October 2000to range overly fact, family only camped this time In broad. K.B. her during with the defendant season. he’s defendant], it and that’s what and will benefit [the asking for.” *7 a on request
The the for continuance court denied request to further As to the defendant’s grounds. both explained that the the the court investigate allegations, in the dates prejudiced by change was not defendant had a broad time range because the dates original the original had notice that previously private As to hiring dates have been inaccurate.4 might explained public the defender attorney, the court that “experi- to the defendant was an appointed represent lawyer” that defendant had had enced criminal the attorney hire but had failed private months to eighteen . .” had means . . though to do so even he “substantial you court, however, defendant, bring The told “['i]f . . . attention, some viable witness it to the court’s [i]f witness, you produce to the court some viable that there person that may type getting be some issue about ... in here, try to make some accommodations I’ll We have some jury. terms that witness for the can then flexibility on that issue.” The court scheduled February 2009, and the day last selection for 2009, stating, March day first of evidence for “[a]nd to work two weeks gives that [the counsel] his court asked the defendant’s investigation.” The will focus now be on this case counsel whether his “sole “right prosecutor explained that, beginning,” to The the court from year parties off.” about the fact that the “had numerous discussions during prosecutor argued provided to defendant also that documents discovery in 2002 of this child had ended the that the mother “note[d] So, relationship was out. there notice and moved [the defendant] prior provided prior long even file to the form and the defense possible any length because the that this couldn’t our discussions home, defendant], all near intent child was out of wasn’t [the purpose, that were discus The defendant conceded “there after date.” “pointed prosecutor] this,” out that the time and that he sions about [the likely provided not at had would to make this scenario all line that she seem 2002 . . .” in calendar
. . . The responded by defendant’s counsel stating, “[undoubtedly, Your Honor.”
A appeal, On the defendant first claims that the court its by abused discretion his for a denying request contin- precluded uance because the change dates “the from presenting the evidence and defense prepared he present.” had We conclude denial on the first of the defendant’s ground request arbitrary light presented reasons the defendant at trial and practical result of the court’s and offer scheduling to accommodate *8 defendant.
We first note that the defendant’s claim is not based on in change the charging document itself because long form information the defendant received one jury week selection, alleged before which 2001 as the year the abuse, was the first charging such document the defendant Rather, received. the defendant’s claim provided is based on other documents to the defendant prior trial, namely, the notice of alibi defense and police report, which conflicted with form long by information stating abuse occurred in 2002 instead of 2001.
Although the court denied the defendant’s request, it stated that the provide schedule would the defendant jury two weeks between presen selection and the tation during evidence which would he be able to “work his defendant, investigation.” therefore, essentially received the additional he was time seeking, was “[ajnother which few weeks . . .” Moreover, court stated if that the defendant having was trouble arranging testimony of one of the witnesses he was locate, trying the court would willing, upon request, defendant’s to “make some accommodations the defen indicates that . . . .” Our review record request his request such a or renewed dant never made specifically Therefore, the court for a continuance. underlying the two reasons addressed for a continuance and either accommodated request regards. in both offered accommodate other factors accommodations light In these V., supra, v. Ross App. State set forth not abuse its discretion we conclude that court did denying the continuance.5
B also claims that the court abused its The defendant request it denied his for a continuance discretion when private disagree We he obtain counsel. so that could its discretion conclude that the court did abuse denying request. Hamilton, This claim is governed case, In “the (1994). private continuance to obtain moved [defendant trial, after the had day counsel on the second pre- been impaneled, but before evidence had been com- Id., “The of the defendant’s gravamen sented.” 247. recently had the same counsel plaint assigned *9 Ramos, App. argues that 80 Conn. The defendant Ramos denied, (2004), (2003), instructs this cert. 840 A.2d request of a when relevant evidence court to reverse a denial continuance Ramos, distinguish shortly however, are trial. The facts of is disclosed before injury personal in which Ramos involved a action able from case. day Id., learned, only damages before was the issue. 286. The defendant plaintiff hepatitis. trial, Id., 279-80. The trial court denied the that the had testily request expert an for a continuance to obtain defendant’s Id., damages. plaintiffs 280-84. This bore on issue of medical condition request. arbitrarily held that trial court denied continuance that, Id., explained had no reason 286. This court because “[t]he specifically suspect hepatitis,” plaintiff have had he “would not plaintiffs during deposition,” questioned him it and since about (Empha relevant, denying the was the court erred in continuance. condition however, Id., Ramos, added.) here had Unlike sis 284-85. wrong. suspect” were that the 2002 dates “reason
represented him in an unrelated case that had resulted twenty-five a sentence of years of incarceration. The defendant did claim, not however, . . . assigned unprepared counsel was go forward, unskilled in the issues at hand, unresponsive to the defendant’s wishes about the manner which his defense should proceed.” Id., 249. Additionally, the court noted that “the defendant had more than nine months between the time of his arrest and trial in order private to retain Id., counsel.” 250. Our Supreme Court concluded that the trial court therefore did not “arbitrarily act or unrea- sonably in denying defendant’s motion for a continu- ance.” Id., 249.
Similarly, the defendant in this only case informed appointed days counsel two before selection that he private was seeking counsel. The defendant also did present any the court with substantive reason to replace court-appointed his counsel, but instead sought private counsel private because of the past firm’s repre- sentation of him. Moreover, the defendant eighteen had private months to obtain counsel but did not do so even though apparently he appointed public defender despite not qualifying for such representation. There- fore, the trial court did not abuse its discretion in deny- ing request for a continuance day made on the of jury selection because its “interest in the efficient justice administration of weighed heavily at that time.” Id., 247.
n The defendant’s second set of claims is that the court abused its discretion in admitting evidence of (1) prior, uncharged sexual misconduct involv- ing another minor hearsay and (2) pursuant statements *10 to the medical exception. treatment We conclude that the court did not abuse its discretion. to admit
“We review the trial court’s decision
[or
evidence, if
on a correct view of
premised
exclude]
. . We
make
...
an abuse
discretion.
.
will
law
every
presumption
upholding
in
reasonable
favor
only upset
it for a manifest
ruling,
trial court’s
.
. The
has wide dis-
abuse of discretion.
trial court
admissibility]
to
relevancy
cretion
determine the
[and
In
error
of evidence ....
order
establish reversible
. .
must
evidentiary impropriety
an
. the defendant
that
an
of discretion and
harm
prove both
abuse
omitted;
such
internal
(Citations
resulted from
abuse.”
J.,
State v. Cecil
quotation
omitted.)
marks
claim. testify prior, spouse, former sexually which the defendant uncharged incidents in February 24, 2009, argu- the court heard abused her. On testimony prior whether admit R.N.’s ments on testify R.N. would proffered The state misconduct. children, and baby-sat she for the defendant’s 1999, when R.N. was twelve or summer of spring her on touched years old, or thirteen at the while separate sleeping occasions she three *11 prosecutor house. The first stated: “The up touching [the defendant] time she woke her breasts under her shirt. The time he second was touch- jeans ing shirt, her breasts inside her her were unbut- unzipped, just touching toned and and he had started up vagina finger. her with his third time The she woke fingers vagina [the defendant] had his in her ran and he leg leg put his down her if she asked was cold and pellets in more the wood stove.” respect explained, then The state “[w]ith to the simi- complainants larities between the in each case, these They family young girls. are members, are and I use ‘family’ quotation that way word marks because of nowadays. girl, families are built R.N., [a The was okay, very cousin] [the defendant’s] wife, much family, baby-sitting involved in that in fact, for them. complainant stepdaugh- The . akin instant . . was to a they living [the defendant] ter to because were in that family figure He unit. was the at father the time they living together. were . The . victims were both . . . at clothed the time that the incidents occurred. complainant you [The in this tell case] will that she was pajamas. you clothing R.N. will tell that she had on baby-sitting. young because she Both ladies were sleeping at the time that the incidents . . occurred. . stopped away The abuse and the defendant walked from [when the scene awoke]. victims . . . The dwelling R.N. incidents with occurred in the home The defendant. incidents of misconduct with the complainant in this case . . . occurred both in the fam- ily family dwelling, camper, home alternate family spent very as I stated, where the their weekends split they much of time between; their so both occurred within the domain the defendant . . . .” responded by arguing, age
The defendant “there is an talking difference here. We’re an about incident of R.N. place prior, years prior. which takes two She’sthirteen. baby-sitter capacity a a working She’s in a—almost stepchild, child or It’s not the same as a at time. essentially complainant in this which what case] [the They place different locations.” was. . . . take at that would make ruling court then stated it *12 to days, parties the additional time giving issue in two sufficiently the were similar. research whether victims final February 26, 2009, parties’ On the hearing after the court ruled that it would arguments issue, the testimony prior abuse admit R.N.’s the sexual regarding first that propensity explained as evidence. The court Next, the were not too remote time. incidents were that the incidents and victims found sufficiently similar, the factors mentioned echoing the court cited State v. James proffer. Finally, state’s G., explained, (2004), 268 Conn. A.2d “in misconduct victim stated uncharged that case the abuse when she was . . . seven that the sexual started I or of, think, until thirteen age it continued which to me that the lust or fourteen, indicated at a and it still continued age desire started young period in a child’s when the child was thirteen life So, ... lack of remoteness or fourteen. based on the . in the and the and time . . the similarities offenses . . . young, fact were both underdevel- girls that oped girls, going the court’s to admit prepubescent purpose uncharged misconduct testimony for the of ... evidence.” propensity by
We review the defendant’s claim our of begin requirements admitting evidence detailing rule, “As a prior, general sexual misconduct. uncharged prove prior misconduct is inadmissible to evidence of the crime which that defendant is guilty a criminal marks quotation (Internal is accused.” DeJesus, 418, 440, omitted.) banc). DeJesus, however, Supreme In our (2008) (en Court an exception created to this rule general for sex Id., 463, crimes. 470-71.
In Supreme our case, Court held that evidence prior, sexual misconduct is admissible for propensity purposes “only if it is prove relevant to the defendant had a propensity tendency or a to engage type compulsive of aberrant and criminal sexual behavior with which he or she Relevancy is charged. is established satisfying pursuant the liberal standard previously which evidence was admitted under the common scheme plan exception. evi- Accordingly, dence of uncharged misconduct is relevant prove propensity defendant had a tendency or a engage in the crime charged only if it is: . . . (1) too remote in . time; . similar (2) to the offense *13 and . . charged; (3) upon persons committed similar to the witness.” prosecuting (Internal quotation marks Id., 473. We omitted.) conclude that the evidence of the prior, uncharged sexual misconduct satis- fies this test.
As to the first of the
relevancy
three
prongs, remote-
time,
ness in
R.N. testified that
she was abused
defendant
in the
or
spring
summer of
while the
record indicates
perpetrated
that the abuse
upon the
victim
April
occurred between
October,
2001. The
clearly
difference
time here
is not remote. See State
v. Romero,
Applying
similarity
the second prong,
to the offense
charged, the abuse of R.N. and the victim was similar
in character. Both were
in a
sleeping
residence owned
by the defendant,
penetrated
were digitally
by the defen-
dant and the
stopped
they
abuse
when
awoke. See State
G.,
State
James
v.
DeJesus, supra,
Conn.
475;
supra,
is because a closer the abuse. The victim was five at the time of victim years either or thirteen and old, and R.N. was twelve conclude, We never- baby-sitter was a for the defendant. sufficiently were similar. theless, that girls reasonably found R.N. First, could have relationship familial-type victim in a with and the were G., supra, v. James the defendant. See State Conn. Merriam, 392-94; 617, 662-63, inci- charged both (2003) (in A.2d 895 of the “had access to the victim abuse dents, defendant familial-type relationship his because of familial did R.N. that she not tell example, For testified her”). away because she was anyone right about the abuse to whom R.N. “very then-wife, to” the defendant’s close “want to be the reason that related, she did family K.B., . . . .” who was up broke their something abuse, time victim’s the defendant at the dating differently treated the victim testified defendant children, other the victim how he treated her from and that very attached to” she “became relationship because encouraged somebody thought that would “was that [she] [she] *14 point.” for forever at that sufficiently so Second, age large difference example, For in the first two factors. outweigh as to 462, 43 Wild, App. 459-60, 464-65, State 458, denied, 954, 239 Conn. 720, 684 A.2d cert. did not abuse this court held that trial court
(1996), uncharged sexual admitting in evidence of its discretion year old by against a fourteen misconduct baby-sat involving defendant in a case had for the who explained The court year old victim. seven “[b]oth undeveloped victims were whom young, girls defendant knew well.” Id., Additionally, 464. in Johnson, App. 410, 871, 76 Conn. 819 A.2d denied, cert. 264 Conn. 826 A.2d (2003), rejected the court argument that, “because the three wit women”; nesses were adult id., 418; and the victim was years thirteen or fourteen old at abuse; the time of the id., 412; the trial court erred in admitting testimony. sexual misconduct Id., 419.
The defendant cites State v. Ellis, A.2d 676 support for his (2004), argument abuse and the victims are dissimilar in this case. In Ellis, the defendant’s abuse victim, of one Sarah S., frequent “was far more and severe” than that of the Id., other victims. 359. The defendant abused Sarah S. on seven different occasions, “the incidents involved a wide range misconduct, including: (1) ‘talking dirty’ on the telephone attempted phone sex; multiple (2) incidents of touching breasts, her in thighs and between legs; her (3) masturbating and in her ejaculating pres- ence; (4) attempting perform force her to oral sex; (5) to force attempting tongue his into her mouth; (6) digital penetration; (7) to climb on attempting top of her while bed; she was lying (8) repeated requests ‘pleasure’ she him.” Id. The abuse against the other girls, contrast, only involved one or two incidents each and “nearly was not as extreme as the defendant’s S., abuse of Sarah expressly fact noted the trial court.” Id., 360. persuaded
We are not
that the facts of Ellis are analo-
gous to this case. As mentioned,
the abuse in this case
was similar and both victims were in a familial-like
relationship with the defendant, which is distinctly dif-
ferent from Ellis. Therefore,
the court did not abuse
its
discretion
admitting
testimony
R.N.’s
under the
relevancy
three
prongs, especially
considering
sig-
support
nificant
provided by
admission
the first two
*15
Romero, supra,
Prior to Moskai-Kanz’ dire examination her as state conducted a voir testimony was proffer that her admissible under hearsay rule. exception treatment to the medical Holly, App. argues, relying on 106 Conn. defendant also denied, 903, (2008), A.2d 344 cert. 287 Conn. actually “that the defendant committed there was insufficient evidence argument, . . . .” We need not address acts of misconduct however, it in the trial “Our review of eviden- because was not raised court. specific ground tiary legal rulings made the trial court limited to rulings objection . the trial . . This reviews court]. raised in the [to party’s objection solely ground . . is based. [T]o on the on which appeal opportunity petitioners different theories of an to raise afford because, objection specific of the trial court [h]ad would amount to ambush opportunity objections trial, had the made the court would have been at omitted; quota respond.” (Citation charge] internal or otherwise alter [the Group, County Gynecology & omitted.) Obstetrics DiLieto tion marks 105, 133-34, P.C., (2010). A.2d 730
550 explained Moskal-Kanz that she had examined the vic- tim for sexual abuse. Specifically, she stated that the purpose of her examinations is to evaluate whether the any children “have sustained injuries, any infections, they do need treatment, to offer reassurance to them as to they whether or not are well.” objected
The defendant to the admission of the testi- mony regarding the victim’s statements during the examination, that it arguing hearsay was that did not fall within the medical exception. treatment The defendant argued that the examination was not for pur- medical poses but instead was intended pursue a criminal prosecution. After hearing state’s argument victim’s and KB.’s testimony demonstrated that victim believed the examination was for pur- medical poses, the court ruled that Moskal-Kanz’ testimony was admissible under the medical exception. treatment
Pursuant
8-3 of the
§
Connecticut Code of Evi
dence,
following are not
by
hearsay
excluded
“[t]he
rule, even
though
declarant is available as a witness
...
...
(5)
A statement
purposes
made for
obtaining medical
treatment
or advice pertaining
thereto and describing medical history,
past
pre
or
sent symptoms, pain, or sensations, or the inception
or general character of the cause or external source
thereof, insofar as reasonably pertinent
to the medical
treatment or advice.” Conn. Code Evid. (2000)
8-3.
§
“In
words,
other
the admissibility of out-of-court state
by
ments made
patient
to a medical
provider
care
depends on whether the statements were made for the
purposes of obtaining medical diagnosis or treatment.”
quotation
(Internal
marks
omitted.)
Miller,
State
121
App.
Conn.
775, 780, 170,
cert. denied, 902,
Conn.
The defendant because police, the examination referred Moskal-Kanz purposes. argument, This same was not medical Anderson, in 86 Conn. however, rejected cert. App. 854, denied, 864 A.2d *17 case, In that defendant argued A.2d 1031 the (2005). purpose victim’s examination was investi that the of the police rather medical because the referred than gative victim to and the examiner “sent a the examiner 874. copy report police Id., of her to the . . . .” This its held that the trial court did not abuse discretion of testimony in the victim’s statements admitting examiner there was sufficient evidence to the because purpose was for medical examination Cruz, in State v. Id., Additionally, treatment. 877-79. Conn. 792 A.2d the court held 12-14, (2002), interview the victim was that a social worker’s exception medical admissible under treatment police present part were despite fact that hospital it was and the interview, videotaped of the police. Supreme Our Court videotape sent the to is no that social explained, evidence “[t]here [the was, employed by police depart in either fact, worker] any capacity or that had assisted in in the ment she of the departments’ respective alleged investigations Miller, see also State supra, Id., 12; abuse.” presence not undermine App. (police officer “does purpose interview”). the medical treatment Similarly, no evidence Moskal-Kanz was there is that employed working or under the direction in this also that her role as police case. She indicated help prepare was not to a case a forensic examiner but, rather, diagnose prosecution, for a criminal injuries. The victim and her mother also potential treat was meant they that believed examination testified purposes. for treatment The fact that an examination may police be done at the suggestion authorities, may provided that the results police authorities, does not remove statements made during the examina- purview tion from the of the medical excep- treatment Therefore, tion. light the rationale of the medical exception, treatment which is presume “that we such inherently statements are rehable because the patient has an incentive to teh the truth order to proper obtain a medical diagnosis treatment”; (internal quotation marks omitted) Miller, supra, App. 780; the court did not abuse its discretion admitting testimony. Moskal-Kanz’
Ill The defendant next claims that prosecutor made an improper statement in front of the deprived him of a fair trial. We conclude that, even if the state- ment amounted prosecutorial misconduct, it did not *18 deprive the process defendant of his due a right to fair trial.
The following additional facts are relevant to this claim. During defendant’s case-in-chief, the defen- only dant called his witness, Victor Vega, the victim’s former pediatrician, testify. The defendant sought to have Vega testify as to one document in the victim’s file to which K.B. privacy waived her rights. During Vega’s testimony, it came to fight may that he have reviewed additional documents in the victim’s file with- out obtaining permission. victim’s prosecutor The then made the following jury: statement front of the “I’d ask to voir dire the point witness at this because there’s no executed waiver and if privilege, he has reviewed documents with lawyer outside of the— an executed waiver of privilege, he has committed a point, crime.” At this the court jury excused the and objection. discussed the testi- Vega’s voiced its concern that
After the state medi- mony that he reviewed all of victim’s implied document, records, just than one cal rather you better off counsel, “[s]o, would told defense I you mean, if reviewed the one document. asking this issue.” court then admonished would eliminate But not prosecutor: right. “All let’s make accusa- level that something tions that someone’s done . you really . . it isn’t fair had; [the very inappropriate And thought I that was counsel]. you you you is, . . . excuse the did that. do [A]ll very way, and take we, calm collected] up.” it “And
Upon jury’s the court stated: ladies return, any disregard type of discussion about gentlemen, any type heated It’s question argument. the last it. so I think we’re just part case, disregard testify May 15, on to that on Vega back track.” went in the file that there was no 2002, he noted victim’s concern of abuse or neglect. prosecutorial
“In whether conduct determining we process, amounts denial of due consider we improper, and, so, if next whether the conduct was prej- determine whether the conduct caused substantial alone, . . We do not focus udice to defendant. prosecutor. The fairness on the conduct of the however, culpability prosecutor of the trial and not pro- the constitutional due analyzing the standard for prosecu- alleging cess claims criminal defendants *19 determination, ... To make this torial misconduct. the extent (1) we must focus on several factors: by defense conduct which the misconduct was invited severity conduct; the (3) the of the argument; (2) centrality of the mis- frequency conduct; (4) of the the case; of the (5) strength to the critical issues conduct adopted; (6) of the curative instructions omitted; internal (Citations of the case.” strength state’s Dillard, State marks quotation 66 Conn. omitted.) App. 238, 241, 943, 784 A.2d 387, denied, cert. 431 (2001).
We prosecutor’s need not determine whether intemperate remark impropriety amounted an because we if that, did, conclude even it it did not result prejudice substantial to the defendant. The test for prejudice substantial is whether the statement “so infected the trial with unfairness as to make the [defen process. conviction a denial due ... In other dant’s] words, we decide must whether the sum total of [the prosecutor’s] improprieties rendered the defendant’s fundamentally . . . question unfair. [trial] prejudiced whether the by prosecu- defendant has been depends torial misconduct . . whether there is jury’s reasonable likelihood that the verdict would have been different absent total improprie sum State (Internal quotation ties.” Ber marks omitted.) mudez, 581, Conn. 599, A.2d 1162 In (2005). case, prosecutor’s this one statement directed at witness —not simply did not himself — to this rise level. six
Turning to the factors, invited, at extent, least some the prosecutor’s by statement asking Vega whether reviewed the victim’s “records” just rather than one document. The court acknowledged possibility as well it defendant, when stated to the “[s]o, you would be better asking you off if reviewed one document.” Next, prosecutor while the clearly not should have made the jury, statement front of the are persuaded we severity that its outweighs the other factors. Regarding frequency, prosecutor only made the statement once. Additionally, the court gave curative jurors instructions advising “disregard” the “heated” statement. These instructions were suffi- any cient to potential prejudice alleviate caused v. Camacho, See statement.
555
an indication to the
(“[i]n
In that
in violation
53a-
degree
§
assault in the first
of sexual
in violation of
injury
a child
(a)
risk
(2)
acts or transac-
“arose out of
same
(a) (2)
53-21
§
however,
held,
188. This court
Id.,
tions.”
and,
same offense
not constitute the
charged crimes did
jeopardy
no
the double
there was
violation of
therefore,
crimes
explained that the two
191. This court
Id.,
clause.
instance,
188-91. For
Id.,
elements.
contained different
intercourse,
requires proof of sexual
(2)
53a-70 (a)
§
requires
not;
(a) (2)
does
53a-70
(2)
§
while 53-21 (a)
§
old, while 53-
years
§
under thirteen
the victim was
was under sixteen
requires that the victim
21 (a) (2)
requires that the contact
(2)
53-21
years old;
(a)
§
*21
a sexual
likely
impair
was “in
and indecent manner
or morals,”
the health
while 53a-70
has
(a) (2)
§
no such
quotation
requirement.
Id.,
(Internal
marks omitted.)
conclude, therefore,
190. We
that
trial court
the
did
the
violate
double
right against
jeopardy
by imposing consecutive sentences. See
State Alvaro
F.,
1,
A.2d 712
7, 966
courts have
(“[o]ur
relationship
the
risk
injury
addressed
between
child and the
degrees
various
of sexual assault in the
context of double jeopardy
occasions,
claims on several
each time
concluding
two crimes do not consti
tute
same offense”),
the
cert.
denied,
882,
U.S.
200,
S. Ct.
V The defendant’s final claim the improp- is that erly refused to an in conduct camera review mental victim’s health records. we Again, disagree. The following additional facts are relevant to this claim. On March defendant informed subpoenaed court that material relating to the victim’s videotaped first multidisciplinary interview had arrived. already summary The defendant had a report of this interview but not an actual videotape, and, therefore, subpoenaed he videotape. Although the defendant did not look at the material that delivered, was he appar- ently was told that it did not a videotape. include
The defendant requested
inspect
that the court
material
determine whether
the defendant could
so
“effectively
review it
that he could
cross-examine”
support
the victim. In
request,
that
argued
report
concluded that the victim was
inconsistent
throughout
interview and that it was
unclear whether the abuse had in fact occurred. The
argued
defendant
the court,
therefore,
should
review the material because he
met
threshold for
unreliability.
demonstrating
responded that,
The state
defendant
privileged,
because the material
the vic-
mental condition
bearing
to show a
needed
the court
testify accurately
order for
ability to
tim’s
and that
the material in camera
inspect
to be able to
showing.
not make this
did
ruled that the
with the state and
agreed
The court
make “the threshold showing
defendant did not
inspection
an in camera
the court
trigger
would even
you have to show
again,
the records. Once
review
*22
was some mental condition
the court that there
her
that would affect
experiencing
was
[the victim]
credibility
psychi-
or
type
on the
stand
some
[witness]
testimony,
you
would affect her
atric condition that
that such a condition exists
showing
have made no
years ago
for
fact that what she said several
except
by somebody
person
and that
did
assessed
testimony.”
think that was credible
has
conclusion that defendant
“We review court’s
to
to
a threshold
of entitlement
showing
failed make
statutorily protected
review of
records
an in camera
. . The
. .
of discretion standard.
.
under the abuse
will be reversed
exercise of its discretion
trial court’s
manifest or where
only
the abuse of discretion is
where
omit-
injustice
(Citations
to have been done.”
appears
State
v.
ted;
quotation
omitted.)
internal
marks
Betances,
“It is well settled of a may inspection an in camera obtain defendant purposes impeach- records for witness’ confidential is that there he she must first demonstrate ment, produce failure to to believe that the ground reasonable right the defendant’s likely impair the information testimony witness’ direct such that the of confrontation omitted.) quotation marks (Internal should stricken.” Bruno, 514, 522-23, 673 A.2d v. linchpin of the determination (1996). “[T]he to the they access records is whether suffi- ciently probative disclose material especially of the abil- ity comprehend, correctly know and relate truth ... as to justify confidentiality so breach of their disclosing them protect in order to quotation his of confrontation.” right (Internal marks omitted.) State Slimskey, 842, 856-57, “Where, (2001). here, the witness’ records purpose are sought obtaining evidence of a mental condition bearing the witness’ testimonial capacity, require we defendant, who is afforded an opportunity persons to voir dire knowledge contents of the sought, records to adduce a factual basis may from which trial court conclude that there is a reasonable ground believe that the records will any pertinent reveal at time witness’ mental [the problem] his capacity affected testimonial ato suffi- ” cient to warrant degree inquiry. quota- further (Internal omitted.) State Bruno, supra, 523. tion marks We with the agree court that the defendant failed to *23 make a threshold showing that the victim had a mental ability affecting testify condition her truthfully. “In evaluating sufficiency of the defendant’s offer of proof, what is at issue is the existence of a mental problem may that bear on the witness’ testimonial capacity, not the witness’ general character intelli- or gence.” Id., 526-27. Because the defendant failed to make a threshold we showing, conclude that the court did not abuse its discretion in refusing to conduct an camera review this material. judgment
The is affirmed.
In opinion J., ALVORD, concurred.
MCDONALD, J., concurring.
I
Although
agree
majority
opinion,
I write separately
I
because
believe
the uncharged
testimony
that
misconduct
prejudice,
jury
gave
which,
to unfair
rise
instructions
exception
unpreserved,
being
on these
was taken
no
appeal
subject
grounds
or
of review on
and not the
Golding,
of his wife’s testimony, couple’s at home. From that cation defendant, least, exhibited find that the at could bad character. (2008) DeJesus, 953A.2d45
In Supreme (en banc), set forth the conditions our Court propensity uncharged into evidence of for admission prejudice, its To minimize the risk undue evidence. “accompanied” by appropriate an must be admission cautionary jury, referring to footnote instruction to the lastly opinion. Id., 474.1 DeJesus 36 of precise DeJesus, Supreme did set forth the content our Court In Instead, following cautionary instruction instruction. it noted such a rule regarding under of evidence of misconduct the admission approved been the United of Evidence had 413 of the Federal Rules Appeals which “In a criminal case in for the Tenth Circuit: States Court of *24 compulsive exhibiting [charged aberrant and with a crime the defendant is behavior], commission of evidence of the defendant’s criminal sexual may considered for ... is admissible and offense or offenses another However, any bearing it evidence of a to which is relevant. its on matter prove guilty prior of its is sufficient to offense on own not you charged as this Bear in mind consider the in the [information]. crimes proving times, government has of that all the the burden at evidence [that] charged in the of the offense each of elements the defendant committed
required that “prior
admitting
evidence,
to”
the
the trial
provide
jury
court must
with an appropriate
the
caution-
ary
evi-
regarding
proper
instruction
the
use of such
477.2 The DeJesus court also
Id.,
dence.
in
referred,
the
cautionary
by
footnote
to
instruction
the
given
DeJesus,
trial
in
judge
which minimized the risk of
prejudice.
Id.,
undue
475 n.37.3 That
instruction
expressly prohibited
jury
from using such evidence
as evidence of the bad character of the
or
defendant,
as
a tendency
evidence of
commit
in
to
criminal acts
general, or as
that
proof
charged
he committed the acts
in that case. Id. That instruction concluded the evidence
only
to
“for
be considered
the sole and limited
[information],
you
any
I remind
that the defendant is not on trial for
act, conduct,
charged
quotation
(Internal
or offense not
in the [information].”
omitted.)
DeJesus, supra,
v.
marks
State
561 jury] of whether purpose assisting determining [the in a method defendant has characteristic engaged the of acts of which pattern in the commission criminal part is a and on the issue the charged the conduct defendant’s intent.” Id. the trial
The record in this case fails to reflect that any cautionary concerning instruction the gave evidence when uncharged use of the sexual misconduct Andersen, R.N. testified.4 See State App. 132 only n.9, The 125, 131-36, (2011). 385 given misconduct instruction this case uncharged after evidence was closed and before the case was the jury. to the went given state us that the instruction argued before any prejudice minimized
to the
before deliberations
DeJesus
testimony.
pointed
As
arising
out,
from R.N.’s
evidence,
this
was “for
case,
the admission of the
as in
”
propensity.
quotation
puipose
showing
(Internal
DeJesus,
supra,
the use of the evidence to the issue of It propensity. prohibit also did not of the use evidence to find that the defendant was of character bad or as evidence tendency of a to commit criminal acts in general.7 However, appeal in his did seek not State given review of the on appeal, instruction under Golding, supra, 213 or plain as under error Practice 60-5. § Book vagina, penetrated that the defendant touched chest and that he [R.N.J’s vagina finger.] you her with his Bear in mind as consider this evidence that times, proving at all has the that state burden of the defendant committed charged each of the of in elements the offense remind information. I you any act, conduct, that the defendant is not on trial not or offense charged in the information.” 6 Supreme Court, DeJesus, [supra, “The in State v. 288 Cohn. n.36], suggested instruction, open precise 474 but this left its adapting language trial content. The court should consider this purpose specific to the for which the evidence was offered.” request following charge uncharged The defendant submitted the as to testimony sexual misconduct: “Youhave also in heard this case about what charges is called misconduct. In criminal cases which contain trial, such as those in this evidence of a defendant’s commission of another may may bearing offense or offenses be be admissible and considered for its any However, prior on matter which it is relevant. evidence of a offense prove guilty on its own is not sufficient to of the crimes defendant] [the charged you in Bear in this trial. mind as consider this at all evidence that beyond proving
times the has the burden of [s]tate reasonable doubt that charged each of [the committed the elements the offenses in defendant] you any act, this trial. I that remind is not on trial for conduct [the defendant] charged or offense not in the information for this case.” charged following just prior The court with the instruction to deliberations: charged “In a in criminal case which the defendant is exhib- a crime iting compulsive behavior, aberrant or criminal sexual evidence of the defen- may dant’s commission of another offense or offenses is admissible any bearing considered for its matter which it is relevant. “However, prior prove evidence of a its own is offense on not sufficient to guilty charged the defendant in crime—crimes Bear information. mind, you evidence, times, at all consider has the State proving burden of that the defendant committed each of the elements of you charged the offense in the information. I remind act, any conduct, charged not on trial for offense the information.” argued before us that the admission state the other evi- RN.’s evidence was harmless because of the court’s dence the defendant and because against Dejesus. directly instruction was based on language repeatedly clearly and I do not because DeJesus agree cautionary requirements set forth the timing Here, prejudice unfair was not mini- instruction. any await, mized must because defense but review corpus if actions, review habeas under- counsel’s See for ineffective assistance of counsel. taken 447, 496-98, (2011) Kitchens, *27 availability habeas benefits and review (identifying of ineffective assistance counsel based for claims improper waiver an instruction).8 I respectfully concur. Accordingly, MICHAEL EAGEN v. COMMISSION ON HUMAN ET
RIGHTS AND OPPORTUNITIES AL. 33241)
(AC SchaUer,
Beach, Bear and Js. appellate pertains counsel also The same conduct trial counsel defendant’s lustful misconduct evidence from K.J. to the contrast, victim, disposition her, kindergarten case. For a toward Andersen, supra, App. 131-36, n.9. see State v.