85 Conn. App. 264 | Conn. App. Ct. | 2004
Opinion
The defendant appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (4), risk of injury to a child in violation of General Statutes § 53-21 (a) (2) and risk of injury to a child in violation of General Statutes § 53-21 (a) (1). On appeal the defendant claims that the trial court improperly (1) admitted a videotape of the victim as a prior inconsistent statement and (2) restricted his right to cross-examine the victim. We affirm the judgment of the trial court.
The juiy reasonably could have found the following facts. On September 28, 2001, the victim, who was fourteen years old, and a friend went to the principal’s office of their school. The victim was very upset. During a twenty minute conversation, the victim reported that the defendant, who was her biological father, had sexually abused her. The principal contacted the department of social services.
The police interviewed the victim’s mother shortly after the victim was interviewed by the multidisciplinary team. She did not appear to be surprised by the victim’s allegations. At trial, however, the mother contradicted and recanted many of the statements she made during her interview with the police concerning the defendant’s sexual abuse of the victim.
During an interview with the police, the defendant admitted that he had touched the victim’s breasts and
The victim testified at trial that she had “made everything up.” She testified that she was aware that her mother was saddened that the defendant could not live with them, and that she did not want her father to go to jail. Although she acknowledged that the defendant had touched her breasts and vagina when he disciplined her, she stated that he did so because he was angry, having witnessed her “boyfriends touching [her] in [her] privates.” She explained that the defendant had touched her in a nonsexual manner that was not inappropriate and that the defendant had asked her how she could permit her boyfriends to “touch [her] down there.” She further testified that she had fabricated the story of the defendant’s sexual abuse to get out of the house and that she did not recall stating during her interview with the multidisciplinary team that the defendant had sexual intercourse with her.
I
The defendant first claims that the court improperly admitted the videotape of the victim’s interview with the multidisciplinary team as a prior inconsistent statement. Specifically, he argues that the videotape should not have been admitted as a prior inconsistent statement for substantive purposes under State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). We disagree.
The following additional facts are necessary for our resolution of the defendant’s claim. The state offered
“As a threshold matter, we set forth the standard by which we review the trial court’s determinations concerning the [admissibility] of evidence. The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) Hayes v. Decker, 263 Conn. 677, 683, 822 A.2d 228 (2003).
Out-of-court statements offered for the truth of the matter asserted are considered hearsay and are generally not admissible. Conn. Code Evid. §§ 8-1, 8-2. Our Supreme Court has held, however, that an out-of-court statement may be used for substantive purposes, that is, for the truth of the matter that it asserts, if it is “given
In the present case, the videotape was properly admitted and provided that the victim had personal knowledge of the events, that she was subject to cross-examination and that the videotape was inconsistent with the victim’s testimony at trial. The defendant cannot dispute that the first two requirements are met. The dispositive issue then is whether the victim’s statements
“In determining whether an inconsistency exists, the testimony of a witness as a whole, or the whole impression or effect of what has been said, must be examined. . . . Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness’ prior statement . . . and the same principle governs the case of the forgetful witness. ... A statement’s inconsistency may be determined from the circumstances and is not limited to cases in which diametrically opposed assertions have been made. Thus, inconsistencies may be found in changes in position and they may also be found in denial of recollection. . . . The trial court has considerable discretion to determine whether evasive answers are inconsistent with prior statements.” (Internal quotation marks omitted.) State v. Jackson, 73 Conn. App. 338, 364, 808 A.2d 388, cert. denied, 262 Conn. 929, 814 A.2d 381 (2002).
Although Whelan is not limited to diametrically opposed assertions, such is the case here. The victim testified that all her previous statements about the defendant’s sexual abuse of her were lies. She testified that she fabricated the story to get out of the house and that she did not recall stating in her interview that the defendant had sexual intercourse with her.
The victim’s testimony on direct examination that her prior statements were not true is inconsistent with those prior statements. Further, the victim’s testimony that she did not recall stating that the defendant had sexual intercourse with her can be considered inconsistent with her prior statement that the defendant had sexual intercourse with her, as she presented herself as a forgetful witness. The court was well within its discretion to consider the victim’s testimony both inconsistent with her prior statements and evasive.
II
The defendant claims that the trial court improperly restricted his right to cross-examine the victim. Specifically, he argues that his right to cross-examine the victim was unduly restricted because the court did not allow him to question the victim regarding the results of a medical examination performed on her. We disagree.
The following additional facts are necessary for our resolution of the defendant’s claim. The state made a motion in limine to exclude any evidence relating to any physical examinations of the victim. The defendant objected to the motion and argued that he had the right “to ask [the victim’s mother] or the victim herself or anyone else to testify whether there’s any physical evidence . . . regarding the issue.” The state argued that any evidence relating to a physical examination of the victim would be either beyond the anticipated scope of direct examination, hearsay or improper opinion testimony. The court reserved judgment on the state’s motion until the issue arose at trial.
During cross-examination of the victim, the defendant asked whether the department or anyone else had sent the victim for a physical examination. The state objected, and the court sustained the objection. After a bench conference, the defendant was allowed to ask the victim whether the department or anyone ever sent her for a physical examination. The victim answered, “Yes.” Immediately thereafter, the court ended the defendant’s inquiry into the physical examination of the victim.
“In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial. . . .
“The constitutional standard is met when defense counsel is permitted to expose to the jury the facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating
Here, the defendant argues that “[w]hether or not [the victim] was examined by a physician and the results of the examination were important to the issue of sexual intercourse.” He argues that the testimony about the physical examination would have helped the jury determine what to believe. The state argues that the court properly prevented the defendant from eliciting testimony from the lay witness victim regarding the results of her medical examination because questions of that nature called for an expert opinion not within the common sphere of knowledge of a lay witness, and such inquiry called for an inadmissible hearsay response from the victim. We agree with the state’s argument.
The defendant’s constitutional rights were not violated by the court’s restriction. The court merely restricted the defendant’s inquiiy into one area, and the defendant was able to adduce damaging admissions from the victim during the cross-examination that directly bore on the victim’s credibility.
We now turn to the question of whether the court abused its discretion. The victim could have known the results of the medical examination only through a discussion with her physician. The victim’s testimony
Accordingly, we conclude that the court’s restriction on the defendant’s cross-examination of the victim was not improper.
The judgment is affirmed.
In this opinion the other judges concurred.
The court stated: “Okay. That’s it.” Because we interpret this to be a disposition of the earlier motion in limine, to which the defendant objected, we view the defendant’s claim as preserved. We also note that the state does not raise a preservation argument and it addresses the claim on its merits.
The record does not reveal whether the victim acquired information regarding the results of the examination from her mother. If she learned of the results from her mother, the defendant would face an additional bar because the victim’s testimony would be based on hearsay within hearsay, both layers of which would have to be subject to an exception to be admissible evidence. See Conn. Code Evid. § 8-7.