STATE OF CONNECTICUT v. NORMAN P.*
(AC 37947)
Sheldon, Prescott and Flynn, Js.
Argued October 6—officially released December 6, 2016
(
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Marina L. Green, assigned counsel, with whom were Emily Graner Sexton, assigned counsel, and, on the brief, Michael S. Taylor, assigned counsel, for the appellant (defendant).
James A. Killen, senior assistant state‘s attorney, with whom, on the brief, were Gail P. Hardy, state‘s attorney, and Anne Mahoney, senior assistant state‘s attorney, for the appellee (state).
Opinion
PRESCOTT, J. The defendant, Norman P., appeals from the judgment of conviction, rendered after a jury trial, of three counts of sexual assault in a spousal relationship in violation of
Given the evidence presented at trial, the jury reasonably could have found the following facts. On the evening of Thursday, August 2, 2012, the defendant was at home with the complainant, who was the defendant‘s sixty-one year old wife, and their twenty year old son, B.P., who had a strained relationship with the defendant. A dispute over the operation of the air conditioning system arose between the defendant and B.P. A verbal argument between the two, in which the complainant interceded on B.P.‘s behalf, soon escalated into a physical altercation. Eventually, in an effort to avoid calling the police and possibly having the two men arrested, the complainant told B.P. that it would be best if he left the house and went to his grandmother‘s residence. B.P. then left.
Thereafter, the defendant approached the complainant and, using his closed fist, punched her in the chest with such force that it took her breath away. The complainant punched the defendant back, injuring her shoulder in the process, and the defendant began hitting and jabbing the complainant repeatedly in the midsection with the television remote control, causing the complainant severe bruising. The complainant eventually retreated to the upstairs bedroom where she usually slept, away from the master bedroom where the defen-dant usually slept.
Several minutes later, the defendant entered the complainant‘s bedroom where she was lying down on the bed, pulled the covers off of her, and stated that he was “going to show [her] something.” He then ripped off the nightgown she was wearing, prompting the complainant to attempt to push and kick him away from her. The complainant was unsuccessful in her efforts, however, because the defendant was physically stronger than her, one of her shoulders had no strength as a result of it having been injured earlier, and the defendant was restraining her other
After a period of time, the defendant directed the complainant to go to the bathroom to wash herself off. He then walked her into the bathroom and to the bathtub, all the while refusing to remove his finger from her rectum. Filling the tub with water and directing the complainant to get in, the defendant proceeded to remove his own clothing and enter the tub with her. The defendant then pulled the complainant onto his lap and began to manipulate a bar of soap into her rectum, although the complainant did not know this at the time because she could not see what he was doing behind her. Consumed with pain, the complainant kept trying to remove the defendant‘s hand from her rectum, but was unable to overcome his strength. Eventually, the complainant complained that her stomach was cramping and that she needed to move her bowels, so the defendant released her and allowed her to sit on the toilet. In addition to emitting blood and feces, the complainant expelled the bar of soap into the toilet, thereby realizing for the first time that he had pushed the soap inside of her.
Afterward, the defendant led the complainant back into the complainant‘s bedroom, and the complainant, overcome with exhaustion, could not attempt to fight him any longer. The defendant proceeded to lean the complainant over the bed and penetrate her rectum with his penis and fingers. After the defendant stopped the assault, he fell asleep on the bed, and the complainant lay crying on the floor.
Eventually, near daylight, the complainant got up, got dressed, and began wandering on foot around the streets in her neighborhood. The complainant attempted to telephone a friend of hers and a friend of the defendant, but neither answered, so the complainant called the defendant‘s brother, and told him about the assault. At some point while she was walking, the complainant felt “a gush [of wetness] come down in [her] pants” and, after returning to the house, discovered that she had had an involuntary bowel movement that was mixed with blood and “white stuff,” which she assumed was from the bar of soap. She cleaned herself off and lay down on the couch in the basement until it was time for her to go to work in the afternoon.
Although the complainant had difficulty walking because of her injuries, she went to work that Friday, Saturday, and Sunday because she did not want to be alone in the house with the defendant. On Monday evening, the complainant confided in her close friend and coworker about the assault, and accepted the friend‘s invitation to stay the night at her house. The next day, on Tuesday, the complainant saw her primary care physician, told him of her injuries, and informed him that they had been the result of an assault by the defendant. The doctor diagnosed the complainant with a rectal tear and ultimately referred her to Interval House for counseling.
On Thursday, almost one week after the assault, the complainant took her car to a shop to be serviced. While at the service shop, the complainant experienced another involuntary bowel movement and decided at that point that she would report the
Prior to trial, on December 5, 2014, the state filed a substitute long form information, charging the defendant with four counts of sexual assault in a spousal relationship in violation of
I
We turn first to the defendant‘s claim that the court improperly refused to admit the defendant‘s complete sworn statement to the police after other portions of the statement had been introduced by the state during trial. Specifically, the defendant argues that the court misinterpreted § 1-5 (b) of the Connecticut Code of Evidence and that, pursuant to § 1-5 (b), the entire statement should have been admitted in order for the jury to understand the context of those portions that were previously introduced by the state during its cross-examination of the defendant. In response, the state argues that the court properly ruled that the police statement constituted nothing more than a prior consistent and self-serving hearsay statement offered by the defendant to boost his favorable testimony through repetition. The state further asserts that “nothing in the defendant‘s police statement provided any ‘context’ essential to a proper understanding of the inaccuracies and omissions pointed out by the state on cross-examination and fully conceded by the defendant on cross-examination, with an explanation.” We agree with the defendant.
The following additional facts and procedural history are relevant to this
When the prosecutor questioned the defendant about details concerning the alleged assault that he had testified to at trial, but were not contained in his signed statement, the defendant repeatedly made clear that those specifics were missing from his statement because he answered only the precise questions that the police interviewer asked of him and did not offer extra details that went beyond the limited scope of each inquiry. For instance, in one exchange, the following colloquy took place between the prosecutor and the defendant:
“Q. And you never told the police that, though, did you?
“A. The police did not ask me detailed questions. It was like giving—the question that the police officer asked me . . . I gave them that answer.
“Q. So, for the first time, you‘re claiming that Monday night into Tuesday morning you saw your wife at the house?
“A. I‘m not claiming [that] for the first time.
“Q. Well, sir, you didn‘t tell the police on August 9th when they came to your house at 1 o‘clock in the morning that your wife had been in the house Monday night, did you?4
“A. I have only answered the question [that] the police asked.
“Q. . . . [B]ut you told the police later on in the day on August 9th after they had been to your house that the TV had been smashed on Monday night . . . .
“Q. And when you talked to that officer [at the police station in the evening of August 9], you talked to him—you told him that you were claiming that the TV was damaged Monday night, but you didn‘t say anything about your wife being home on Monday night, did you? Yes or no?
“A. I didn‘t—I wasn‘t—as I said, the only—the only question I answer was
Subsequently, during redirect examination, the defendant‘s written police statement became the subject of questioning once more, this time by defense counsel, and the defendant again testified that the detective did not transcribe the defendant‘s words in the exact manner as he said them aloud. Thereafter, defense counsel stated that he would like to offer the defendant‘s police statement as an exhibit, to which the prosecutor objected on the ground that it was self-serving hearsay and not an admission by a party opponent. Defense counsel responded: “[T]his statement read in its entirety is consistent with his trial testimony. The [state] has in cross-examination picked out inconsistencies, claiming that it‘s inconsistent with . . . his trial testimony. And that, for the jury to understand whether those are really inconsistencies or not, the jury should have the whole statement in its entirety so they can see exactly how it flows, what he said, what it was about and the context of it. . . .” Defense counsel also asked the court for five minutes to assemble his argument and corresponding case citations, and the court agreed to take a brief afternoon recess.
Upon returning from the court‘s recess, the prosecutor asserted that our Supreme Court‘s decisions in State v. Hines, 243 Conn. 796, 709 A.2d 522 (1998), and State v. Jackson, 257 Conn. 198, 777 A.2d 591 (2001),6 were inapposite to defense counsel‘s argument in the present case because Hines was overturned,7 and Jackson “points out that the defendant‘s statement to the police is hearsay and . . . even when he testifies, it doesn‘t give him the right to introduce otherwise inadmissible hearsay. It doesn‘t fall within any of the recognized exceptions.” The court then sustained the state‘s objection, stating that “according to State v. Jackson, [supra, 198] the entire written statement is inadmissible if it‘s . . . self-serving hearsay. So, I‘m going to—since you‘ve already brought out on redirect, [defense counsel], regarding your client‘s prior consistent statement[s], certainly, they come in, but I‘m not going to admit the entire statement.”
In an effort to further clarify his argument for the court and for the record, defense counsel then stated: “[A]s I indicated in a note that the [courtroom] clerk delivered to you during a recess, the citations that the clerk wrote were from the Practice Book, including . . . § 1-5 (b) of
We begin by setting forth the applicable standard of review and principles of law. “To the extent a trial court‘s [ruling regarding] admission of evidence is based on an interpretation of the [Connecticut] Code of Evidence, our standard of review is plenary. For example, whether a challenged statement properly may be classified as hearsay and whether a hearsay exception properly is identified are legal questions demanding plenary review. They require determinations about which reasonable minds may not differ; there is no judgment call by the trial court . . . . 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.” (Internal quotation marks omitted.) State v. Miller, 121 Conn. App. 775, 780, 998 A.2d 170, cert. denied, 298 Conn. 902, 3 A.3d 72 (2010). Because the court‘s interpretation of § 1-5 (b) of the Connecticut Code of Evidence is being challenged, our review is plenary.
“Our cases have long held that, when one party to a litigation or prosecution seeks to introduce admissions that constitute only a portion of a conversation, the opposing party may introduce other relevant portions of the conversation, irrespective of whether they are self-serving or hearsay.” (Internal quotation marks omitted.) State v. Jackson, supra, 257 Conn. 213. This principle is codified in § 1-5 (b) of the Connecticut Code of Evidence, which provides: “When a statement is introduced by a party, another party may introduce any other part of the statement, whether or not otherwise admissible, that the court determines, considering the context of the first part of the statement, ought in fairness to be considered with it.” “The purpose of this rule is to ensure that statements placed in evidence are not taken out of context. . . . This purpose also demarcates the rule‘s boundaries; a party seeking to introduce selected statements under the rule must show that those statements are, in fact, relevant to, and within the context of, an opponent‘s offer and, therefore, are part of a single conversation.” (Citation omitted; internal quotation marks omitted.) State v. Jackson, supra, 213.
Moreover, in State v. Hines, supra, 243 Conn. 807-808, our Supreme Court held that “[w]hen a party has impeached a witness with portions of a statement that are inconsistent with his or her trial testimony, the trial court may, in its sound discretion, admit the entire statement for rehabilitative purposes, in order to place the allegedly inconsistent statement into context and to prevent the jury from being misled.” “[This] precludes selective admission by one party that serves only to distort reality and allow legal technicalities
Here, the defendant argues that the court misinterpreted the Connecticut Code of Evidence because the question of whether a statement is self-serving hearsay is irrelevant to the question of its admissibility under § 1-5 (b). In response, the state argues that the court properly excluded the complete police statement because it “constituted nothing more than a self-serving, prior consistent hearsay statement that had no relevance to offsetting the state‘s claim of recent contrivance as to certain details and, therefore, was no more admissible than any other out-of-court statement that a party might proffer in an effort to improperly boost a witness’ favorable testimony through repetition.”
Because the court is vested with the discretion to admit or to bar the statement on fairness grounds only after it has made the legal determination that the particular statement is subject to § 1-5 (b) of the Code of Evidence; see State v. Miguel C., 305 Conn. 562, 572, 46 A.3d 126 (2012); we begin our analysis by reviewing whether the court‘s exclusion of the defendant‘s complete police statement was based on a proper interpretation of § 1-5 (b). As previously discussed, the court was specifically asked to rely on the Jackson decision in overruling the state‘s objection, but ultimately determined that the statement should be excluded because “according to State v. Jackson, [supra, 257 Conn. 198] the entire written statement is inadmissible if it‘s . . . self-serving hearsay.” In short, there is no reasonable basis from which the court could have concluded that Jackson so holds. In fact, Jackson expressly stands for the proposition that whether a statement is self-serving hearsay is entirely irrelevant to the question of its admissibility under § 1-5 (b) of the Connecticut Code of Evidence. Id., 213. Moreover, the court‘s interpretation of § 1-5 (b) utterly fails to take into account that portion of the rule that expressly states that “another party may introduce any other part of the statement, whether or not otherwise admissible . . . .” (Emphasis added.) Therefore, we conclude that the court disregarded binding Supreme Court precedent, and failed to construe properly § 1-5 (b) of the Connecticut Code of Evidence, by erroneously ruling that the statement was inadmissible on the ground that it was self-serving hearsay.
Having decided that the court improperly excluded the statement on the basis of an improper interpretation of the Connecticut Code of Evidence, we next turn to whether that error was harmful, such that the defendant is entitled to a new trial. “When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful. . . . [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 . . . 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 oth-erwise 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
Here, the defendant asserts that the court should have admitted the defendant‘s complete written statement to the police under § 1-5 (b) because, for two reasons, it would have provided context for the portions of the statement previously introduced by the state: (1) the brevity of the statement might have caused the jury to credit the defendant‘s testimony as to why his statement to the police was missing certain details to which he testified at trial; and (2) the statement as a whole would have allowed the jury to assess the defendant‘s credibility without being misled by the prosecutor‘s paraphrasing of certain portions of the statement, most importantly, her argument that the defendant had “conceded that he signed under oath to that truth that he put a bar of soap in [the complainant‘s] anus . . . .” (Emphasis added.) In addition, the defendant argues that the trial court‘s improper exclusion of his complete statement to the police was not harmless given the importance of his testimony at trial, the weakness of the state‘s case against him, and the fact that the jury did not find him guilty of two of the seven counts with which he was charged. It is important to note that the state failed to brief whether such error was harmless and, instead, confined its analysis to whether the full statement was properly excluded.
First, we agree with the defendant that the omission of certain information from his police statement is better understood when viewed in light of the brevity of the police statement as a whole. As previously discussed, the state chose to introduce substantive portions of the defendant‘s police statement during the defendant‘s cross-examination. When the state then repeatedly questioned him as to why he left out certain details from the written statement that he later testified to at trial, the defendant made clear that he only answered the narrow questions asked of him by the police interviewer. Although the state argues that the complete statement should not have been admitted because it did not contradict any of the points made by the state during the defendant‘s cross-examination, this is not the proper standard for considering the defendant‘s proffer. Rather, a statement should be admitted in its entirety, upon the party declarant‘s timely request, to “ensure that statements placed in evidence are not taken out of context.” (Internal quotation marks omitted.) State v. Jackson, supra, 257 Conn. 213. The defendant was entitled to have the jury consider that the statement was only approximately one page in length and that about one-half of its substance concerned incidents that occurred solely between the defendant and B.P., in order to better assess the state‘s assertion that the defendant must be lying on the witness stand regarding certain facts because he never told the police about those facts during his police interview. Without permitting the entire statement to be admitted to show its brevity, the court unduly handcuffed the defendant‘s ability to argue that he had not disclosed certain details regarding the events in question because the interview questions were limited in scope and duration, as reflected by the shortness of the statement.
Second, we agree with the defendant that the complete police statement was necessary to better explain the state‘s paraphrasing of a portion of the statement concerning the nature of the bar of soap that was involved in the alleged assault. Specifically, the prosecutor stated during
Third, we agree with the defendant that the trial court‘s improper exclusion of his complete statement to the police was not harmless given the importance of the defendant‘s witness testimony, the weakness of the state‘s case against the defendant, and the fact that the jury did not find him guilty of two of the seven counts with which he was charged. Because the defen-dant conceded that he did have a sexual encounter with his spouse on the night in question, but claimed that the encounter was consensual and that her rectal injuries had been caused accidentally, his trial testimony was critical to his defense against the state‘s charges. Moreover, because of the nature of the defendant‘s version of events and the fact that the only two witnesses to the alleged assault were the complainant and the defendant, the outcome in this case primarily rested on a credibility contest between the complainant and the defendant, not on any physical evidence presented to the jury. As previously discussed, excluding the defendant‘s complete statement to the police as a full exhibit unfairly placed the state‘s selected portions of that statement out of context and likely implicated the defendant‘s credibility in a negative way. Given the importance to the state‘s case that the defendant‘s testimony be found untrustworthy, we cannot conclude that the court‘s exclusion of the statement did not have a substantial effect on the jury‘s verdict. This is especially true in light of the fact that the jury did not find the defendant guilty on all of the charges against him, thereby indicating that the jury did not fully credit the
II
Our conclusion that a new trial is warranted because the court improperly interpreted § 1-5 of the Connecticut Code of Evidence is dispositive of the defendant‘s appeal, thus eliminating the need to address most of the defendant‘s remaining claims. Nevertheless, because the defendant‘s claim concerning the court‘s refusal to mark for identification and inspect in camera the complainant‘s Interval House records is likely to arise again on remand, we also address it in this opinion. See State v. Arroyo, 284 Conn. 597, 601 n.3, 935 A.2d 975 (2007).
The claim is twofold: first, the defendant claims that the court improperly refused to mark for identification the complainant‘s privileged Interval House records; and second, he claims that the court improperly refused to conduct an in camera review of the Interval House records after he made the requisite threshold showing for the review.9 In response, the state argues that although the court‘s refusal to mark the documents for identification was improper, the defendant did not make an adequate showing that an in camera review of the privileged Interval House records was warranted. We agree with both parties that the refusal to mark the records for identification was improper, and agree with the defendant that an adequate showing for an in camera review of the records was made.
The following additional facts and procedural history are relevant to these claims. When the complainant told her doctor during her August 7, 2012 appointment that the defendant was responsible for her injuries, the doctor recommended that she speak with someone from Interval House. Before the start of trial, the complainant‘s records from Interval House were subpoenaed, and the organization complied with the subpoena by providing those records, under seal, to the court clerk. Thereafter, during trial, the doctor testified that the complainant did, in fact, speak to an individual from Interval House over the telephone. The doctor testified: “[A]nyone who I am concerned might be in a domestic violence relationship or the victim of a domestic violence act, it‘s my practice to get that individual on the phone with a counselor at the time of the office visit.” The complainant also testified that she spoke with an individual from Interval House, whom she categorized as being “a sexual abuse counselor,” when she was at the doctor‘s office on August 7, 2012.
Because the Interval House records are privileged as communications between a victim and a battered woman‘s or sexual assault counselor; see
The defendant then argued that the Interval House records would likely indicate whether the complainant told the Interval House employee the same version of events that she told the doctor, i.e., the one containing no reference to the alleged penile and soap penetration or to the physical nonsexual assault, or the same version of events she told the police, i.e., the one containing those additional allegations. Accordingly, the defendant contended, the court should review the documents in camera before the start of the trial to determine whether the statement the complainant made to Interval House necessarily conflicted either with her statement to her doctor or with her statement to the police and, thus, is exculpatory because it could be used to impeach her trial testimony. The defendant argued that he needed any impeachment material likely to be found in the Interval House records to prepare for the trial and for the complainant‘s cross-examination.
The court ruled that the defendant did not make the threshold showing for an in camera review, but informed him that if he raised the issue on cross-examination of the complainant, and if “there‘s something in there which may indicate that [the complainant] may have said something different to the Interval House that may be impeachment material, then . . . I‘ll look at the Interval House records in camera at that time. But right now, you haven‘t shown me anything that would indicate that there‘s something in there. You‘re just guessing right now.” Accordingly, the court denied the motion without prejudice. When the defendant later renewed his motion to review the records after the complainant‘s cross-examination, the court again denied the motion, stating that the defendant “still [had] not made a threshold showing that there‘s anything in there other than your conjecture.”
Subsequently, before the start of the fourth day of trial, the defendant requested that the court mark for identification the complainant‘s Interval House records, but the court declined to do so “because [it] never looked at them.” When the defendant pointed out that that is the exact reason why they need to be marked for appellate review, the court replied: “No, I don‘t believe so . . . I believe once I look at them and if I determine that there‘s nothing in there that‘s impeachment material, then they need to be marked and sealed for the Appellate Court. But I could be wrong; I don‘t know.” The defendant asked the court to reconsider on the basis of case law, although he could not cite an applicable case at that time, and again explained that the defendant was entitled to have the records be preserved for appellate review. The court then stated: “Give me the case cite, and I‘ll look at it, but for now it‘s not going to be marked.”
Thereafter, before the start of the defendant‘s sentencing hearing on February 26, 2015, the defendant highlighted for the
In response, the court stated: “The court has had the opportunity to review the case, State v. Bruno, [supra, 236 Conn. 514] cited by the defendant in [his] motion to—for a new trial. The facts in Bruno are distinguishable from our current case, mostly because the documents that were requested in Bruno were psychiatric records, which the . . . trial court found that the defendant had failed to make a threshold showing that there was anything in there that would be probative. So, in that case, the court denied the in camera review and did not mark the psychiatric records, which the Appellate Court did find that was an error, but it was a harmless error. In our case, those aren‘t psychiatric records. These are records that are protected by statute, the Interval House records.” On that basis, the court again declined to mark the records for identification.
A
We first turn to whether the court improperly refused to mark the Interval House records for identification. We agree with both the state and the defendant that this was improper.
Although evidentiary matters typically fall within the court‘s discretion, “[t]he right to have a proffered exhibit marked for identification is indeed a broad one.” State v. Onofrio, 179 Conn. 23, 34, 425 A.2d 560 (1979). “A trial court has the absolute duty to mark for identification and seal for possible appellate review any such records offered, whether or not an in camera inspection is undertaken, even in the absence of an objection to its failure to do so from the parties.” State v. Bruno, supra, 236 Conn. 538. “A trial court‘s refusal to permit documents to be marked as exhibits for identification is ‘manifest error. . . .‘” State v. Onofrio, supra, 43.
In the case at hand, the state concedes that the court‘s refusal to mark the Interval House records for identification was error. We agree. Although the court attempted to distinguish Bruno, we can divine no practical difference between psychiatric records, and records of communications between a victim and a battered woman‘s or sexual assault counselor, both of which are protected by statute. See
B
We turn next to the defendant‘s claim that the court improperly refused to inspect in camera the Interval House records despite the fact that he had made a sufficient preliminary showing required for such inspection. We agree with the defendant.
“[I]n camera judicial review of a victim‘s privileged records currently represents the most common method of balancing statutory privileges against the defendant‘s trial rights.” (Internal quotation marks omitted.) State v. Slimskey, 257 Conn. 842, 856 n.9, 779 A.2d 723 (2001). “It is well settled in this state that before a criminal defendant may obtain an in camera inspection of a witness’ confidential records for purposes of impeachment, he or she must first demonstrate that there is reasonable ground to believe that the failure to produce the information is likely to impair the defendant‘s right of confrontation such that the witness’ direct testimony should be stricken. State v. Esposito, [supra, 192 Conn. 179] . . . . Our assessment of the trial court‘s decision to restrict the defendant‘s access to the witness’ confidential records must, however, take into account the recognized principle that such a restriction implicates the defendant‘s constitutional right to impeach and discredit state‘s witnesses.” (Citations omitted; internal quotation marks omitted.) State v. Ortiz, 252 Conn. 533, 557, 747 A.2d 487 (2000). Thus, “[u]pon inspecting the records in camera, the trial court must determine whether the records are especially probative of the witness’ capacity to relate the truth or to observe, recollect and narrate relevant occurrences.” (Internal quotation marks omitted.) State v. Howard, 221 Conn. 447, 457-58, 604 A.2d 1294 (1992).
“It is well established that impeachment evidence may be crucial to a defense, especially when the state‘s case hinges entirely upon the credibility of certain key witnesses. . . . The rule laid out in [Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)] requiring disclosure of exculpatory evidence applies to materials that might well alter . . . the credibility of a crucial prosecution witness.” (Internal quotation marks omitted.) State v. Esposito, 235 Conn. 802, 815-16, 670 A.2d 301 (1996). Our Supreme Court has held that “[i]nconsistencies may be shown not only by contradictory statements but also by omissions.” State v. Whelan, 200 Conn. 743, 748 n.4, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). Therefore, “[i]f a former statement fails to mention a material fact presently testified to, which it should have been natural to mention in the prior statement, the prior statement is sufficiently inconsistent.” (Internal quotation marks omitted.) State v. Reed, 174 Conn. 287, 303, 386 A.2d 243 (1978).
To meet his or her threshold burden for obtaining in camera review of privileged records, “the defendant must do more than assert that the privileged records may contain information that would be useful for the purposes of impeaching a witness’ credibility.” State v. McClelland, 113 Conn. App. 142, 160, 965 A.2d 586, cert. denied, 291 Conn. 912, 969 A.2d 176 (2009). “The defendant‘s offer of proof should be specific and should set forth the issue in the case to which the [confidential] information sought will relate.” (Internal quotation marks omitted.) State v. George J., 280 Conn. 551, 599, 910 A.2d 931 (2006), cert. denied, 549 U.S. 1326, 127 S. Ct. 1919, 167 L. Ed. 2d 573 (2007). At the same time, however, “[o]ur Supreme Court has urged trial courts to permit the defendant a certain
In the present case, we conclude that the defendant satisfied the threshold requirement for an in camera inspection of the complainant‘s Interval House records. Rather than merely asserting a general belief that the privileged records might contain impeachment information to be used against the complainant during cross-examination, the defendant‘s offer of proof here was well-defined and sufficiently set forth the issue in the case to which the information sought would relate. As a preliminary matter, we note that the defendant asserted to the court that, without knowing precisely what the complainant told Interval House, the evidence led to the conclusion that she provided some sort of backstory concerning the alleged assault to the Interval House individual. We, too, are persuaded that it is not unreasonable to infer from the existence of the complainant‘s subpoenaed Interval House records that the complainant would have been asked by Interval House to explain why she was calling and, thus, would have provided a statement about the events that gave rise to her referral to the organization. Accordingly, we now turn to the crux of the defendant‘s offer of proof.
Specifically, the defendant argued that the complainant‘s version of events concerning the alleged assault that she told her doctor was inconsistent from the version of events that she later told the police, because the former statement omitted material facts that would have been natural to mention to the health care provider. For example, the defendant cited for the court how the complainant told her doctor that the defendant forcefully put his fingers in her anus during the alleged assault, but did not say that the defendant struck her in the chest or that he forcefully inserted his penis and a bar of soap into her anus.10 Because these two statements were inconsistent with each other, the defendant argued, it was reasonable to infer that a third statement to Interval House must necessarily conflict with at least one of them and, thus, would be exculpatory in nature because it serves as impeachment evidence for the trial testimony of the complainant, the state‘s key witness in the case.
Ultimately, the defendant‘s offer of proof here was not a mere attempt “to conduct a general fishing expedition into a witness’ privileged records.” (Internal quotation marks omitted.) State v. Slimskey, supra, 257 Conn. 856 n.9. Rather, the defendant laid a sufficient foundation to indicate a “‘reasonable ground to believe‘“; State v. Ortiz, supra, 252 Conn. 557; that the Interval House records contained material useful for impeachment of a crucial prosecution witness, the complainant, whose credibility was a critical factor to obtain a conviction. We conclude, therefore, that the court improperly ruled that the defendant had not made a sufficient showing to compel an in camera inspection of the records.
The judgment is reversed and the case is remanded for a new trial.
In this opinion the other judges concurred.
* 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 use the defendant‘s full name or to identify the complainant or others through whom her identity may be ascertained. See
Notes
“Q. . . . [D]escribe the size of the piece [of soap] that you took out . . . .
“A. About the size of my finger.
“Q. Okay. I want to show you the top of this pen, this magic marker, and ask you, was it the piece that you took out [of] the dish?
“A. Something—yeah. We keep those inside. Yes.
“Q. Okay. So, it was about the size of the top of the magic marker I‘m holding in my hand . . . .
“A. Yes.”