68 Conn. App. 313 | Conn. App. Ct. | 2002
Lead Opinion
Opinion
The defendant, Ronald Vumback, Jr., appeals from the judgment of conviction, rendered after a trial to the court, of sexual assault in the first degree in violation General Statutes § 53a-70 (a) (1) and (2), attempt to commit to sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a) (1) and (2), sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A) and risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant challenges the trial court’s denial of his motion for a bill of particulars and the admission of certain evidence. We affirm the judgment of the trial court.
The court found the following facts. The victim lived with her divorced mother in Wallingford. The victim was six years old in 1990 when her mother met the defendant. In July, 1991, the defendant began living with the victim’s mother, the victim and her sister, and the victim’s grandmother. The victim’s mother and the defendant married in 1992 and had a child of their own in 1995.
From approximately June, 1990, through July, 1996, the defendant repeatedly sexually abused and attempted to sexually abuse the victim. The sexual abuse and attempted sexual abuse occurred in the family home. On July 11,1996, the victim’s mother took the
While in the physician’s office on July 17, 1996, the victim’s mother informed Peterson that it was the defendant who had transmitted the herpes virus to the victim.
The state filed five separate informations. Each information stated that the defendant was accused of offenses against the victim and that such offenses occurred on “divers dates between approximately June, 1990, through July, 1996 . . . .” They further stated that the offenses occurred at the family home and listed the address of that residence. Subsequent to the state’s filing its last information, the defendant filed a motion for a bill of particulars, which the court denied. The defendant was subsequently found guilty of the charges against him, and this appeal followed. Additional facts will be set forth as necessary.
I
The defendant first claims that the court abused its discretion when it denied his motions for a bill of particulars and for a new trial because the charges against him lacked sufficient particularity. The defendant claims that this denial violated his due process right to
“[T]he denial of a motion for a bill of particulars is within the sound discretion of the trial court and will be overturned only upon a clear showing of prejudice to the defendant. ... A defendant can gain nothing from [the claim that the pleadings are insufficient] without showing that he was in fact prejudiced in his defense on the merits and that substantial injustice was done to him because of the language of the information.” (Citation omitted; internal quotation marks omitted.) State v. Kyles, 221 Conn. 643, 653, 607 A.2d 355 (1992).
The defendant asks this court to determine whether the trial court’s denial of his motion for a bill of particulars, in the absence of specific dates in the state’s information, denied him his due process right to notice of the nature of the charges against him. In support of this claim, the defendant makes various overlapping assertions, but essentially argues that the state failed to apprise him of the nature of the charges against him because the state failed to provide the defendant with the “dates, times and places” of the offenses charged. The defendant further argues that the inexactness of the state’s allegations precluded him from presenting an alibi defense.
Our Supreme Court has held numerous times that “[t]he state has a duty to inform a defendant, within reasonable limits, of the time when the offense charged was alleged to have been committed. The state does not have a duty, however, to disclose information which the state does not have. Neither the sixth amendment [to] the United States constitution nor article first, § 8, of the Connecticut constitution requires that the state
In State v. Blasius, 211 Conn. 455, 559 A.2d 1116 (1989), the state charged the defendant with sexual abuse that it alleged occurred over approximately a six month period. Our Supreme Court held that the state did not breach its duty to inform the defendant of the nature of the charges against him because the state did not know to a “reasonable certainty that the [offenses were] committed within a narrower time frame than that provided in the [information] . . . .” (Internal quotation marks omitted.) Id., 461.
In State v. Saraceno, 15 Conn. App. 222, 234—35, 545 A.2d 1116, cert. denied, 209 Conn. 823, 824, 552 A.2d 431, 432 (1988), the state, “to the best of its ability,” identified in a substitute information the time and date of when the charged offenses of sexual assault occurred. We held that “[t]he general rule in Connecticut is that [t]ime is not an essential ingredient of the crime of [sexual assault].” (Internal quotation marks omitted.) Id., 236. Furthermore, we noted that there was no evidence that the state knew the precise dates of the offenses and deliberately withheld them from the defendant. Id. Had that been the case, “the defendant’s claim . . . would [have been] more convincing.” (Internal quotation marks omitted.) Id.
In State v. Spigarolo, 210 Conn. 359, 363, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989), the information alleged that the defendant committed the crimes of sexual assault and risk of injury to a child between October, 1984, and January 3, 1985. Our Supreme Court noted that “[i]t
In this case, the record shows that the state was merely aware of possible dates on which the offenses might have occurred, but that it chose not to plead them in its final information because those dates were unsubstantiated by the evidence. For example, the information filed on March 7, 2000, pinpointed a ten day window, from July 5 to 15, 1996, during which some of the offenses might have occurred. The final information, however, did not include those dates because, as the record demonstrates, the information was imprecise. Before ruling on the defendant’s motion for a bill of particulars, the court asked the assistant state’s attorney about his knowledge of specific dates. The assistant state’s attorney responded, “I cannot give the defendant anything I don’t have.” The record supports the assertion that the state did not have knowledge of the specific dates.
At trial, the victim’s testimony was inconsistent in various respects. The victim testified that she told Peterson that the defendant sexually assaulted her on July 3, 1996. Just moments later, she testified that she did not tell Peterson that she had been sexually assaulted on that date. The victim was otherwise unable
The record reveals that the state’s best information regarding the exact times of the charged offenses was imprecise. On the basis of the information available to it, the state reasonably and to the best of its ability set forth the time period of the charged offenses.
In addition, the defendant asserts that he was impermissibly precluded from presenting an alibi defense by the state’s inability to provide exact dates of the offenses. Our Supreme Court has rejected this precise claim several times. See State v. Evans, 205 Conn. 528, 535, 534 A.2d 1159 (1987), cert. denied, 485 U.S. 988, 108 S. Ct. 1292, 99 L. Ed. 2d 502 (1988). “That a defendant may offer an alibi defense is a factor to be considered by the court in deciding whether to grant a motion [for a bill of particulars], but an alibi defense does not create a per se requirement that the state limit the times in the information more narrowly than the evidence available warrants.” (Internal quotation marks omitted.) State v. Spigarolo, supra, 210 Conn. 387. On the basis of Evans and our previous discussion in this opinion, we conclude that the defendant was not impermissibly precluded from presenting an alibi defense by the state’s inability to provide exact dates of the offenses.
II
The defendant next claims that the court improperly allowed into evidence detailed constancy of accusation testimony in violation of State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996) (en banc), and that such testimony caused him substantial prejudice. The defendant claims that the court improperly allowed constancy of accusation witnesses to testily as to the “specifics” of the victim’s complaint. We do not agree.
Because constancy of accusation testimony is evidentiary in nature, a trial court’s admission of such testimony will be reversed on appeal only where there has
The defendant has asked this court to determine whether the testimony of the state’s constancy of accusation witnesses exceeded the boundaries of admissibility established by our Supreme Court in Troupe. He alleges that the court allowed into evidence the testimony of Peterson, the certified nurse practioner who had examined the victim; Christina King,
Constancy of accusation testimony is deeply rooted in Connecticut common law. See State v. Rolon, 257 Conn. 156, 187, 777 A.2d 604 (2001); State v. Troupe, supra, 237 Conn. 294-97. In Troupe, our Supreme Court limited the common-law rule,
This court, as well, has reviewed numerous trial court decisions in light of Troupe. In State v. Orhan, 52 Conn. App. 231, 243, 726 A.2d 629 (1999), we held that “[t]he controlling language from Troupe does not limit the identifying information that may be provided. It limits only the extent of the information provided. Our Supreme Court merely gave examples of how a sexual assault might be identified; it did not hold that that was the only testimony that could be provided.” See State v. Barile, 54 Conn. App. 866, 872-73, 738 A.2d 709 (1999). In State v. Lisevick, 65 Conn. App. 493, 508, 783 A.2d 73, cert. denied, 258 Conn. 933, 785 A.2d 230 (2001), we recognized that “[o]ur Supreme Court did not limit the exact terms a constancy of accusation witness could use in her testimony.” Most recently, in State v. Williams, 65 Conn. App. 449, 465, 783 A.2d 53, cert. denied, 258 Conn. 927, 783 A.2d 1032 (2001), we were confronted with a defendant charged with various counts of sexual abuse based on various actions taken by the
The defendant in this case was charged with various counts of sexual assault. The victim testified as to the details of those sexual assaults
Peterson’s testimony corroborated the victim’s testimony that the defendant tried to put his penis inside of her vagina after she came out of the shower. Peterson testified, over the defendant’s objection, that the victim told her that “two weeks prior to the [victim’s] visit [to her] office . . . [the victim] was getting out of the shower and . . . her stepfather approached her and attempted to put his penis in her and tried to kiss her.” Peterson’s testimony, therefore, supported the victim’s direct testimony and was permissible to corroborate that testimony.
Additionally, King’s testimony further corroborated the victim’s direct testimony. King testified, over the defendant’s objection, that the victim complained that the defendant “had asked her to touch his penis . . . [and] had attempted to . . . perform oral sex on her and touch her breasts . . . [and that the defendant also] attemptfed] to put his penis between her legs.” King stated further that the victim told her that the sexual assaults usually “occurred when [the victim] was leaving the shower to go get her clothes.” King’s testimony, like that of Peterson and Glaser, was corroborative of the victim’s testimony on direct and cross-examination.
Finally, the court had the benefit of testimony from the victim’s grandmother. The grandmother testified, over the defendant’s objection, as to what she overheard the victim say to one of the victim’s friends while they were seated in the back of the grandmother’s car. She testified
The defendant argues that the court improperly admitted the testimony of the victim’s grandmother because it cannot be classified as constancy of accusa
After a careful review of the evidence, we conclude that the court properly admitted all of the challenged constancy of accusation testimony because such testimony corroborated the victim’s accusations and associated the defendant with the pending charges. The defendant has shown neither that the court abused its discretion in admitting the constancy of accusation testimony nor that he has been substantially prejudiced by the admission of such testimony. The court, therefore, acted within its sound discretion and did not exceed the limitations set forth in Troupe.
Ill
The defendant next claims that the court improperly permitted the state to elicit expert testimony without
Underlying the defendant’s claim is the presumption that the testimony of John Leventhal, professor of pediatrics at the Yale Medical School and attending pediatric physician at Yale-New Haven Hospital, constitutes “scientific evidence.” Specifically, the defendant argues that the state offered, and the court improperly admitted, Leventhal’s testimony to explain that victims of sexual abuse often lack precision in their allegations and to show the common factors regarding a victim’s delay in reporting sexual abuse. We are not persuaded.
We first note our standard of review. “[T]he trial court has broad discretion in ruling on the admissibility . . . of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a
The defendant has asked this court to determine whether the trial court properly concluded that Leventhal’s reasoning or methodology was scientifically valid. The defendant contends that Leventhal’s testimony was based on “nothing more than mere speculation” and, as such, fails to comport with the Daubert standard.
It is first necessary to determine whether such evidence is of the kind contemplated by Porter before subjecting it to the Daubert standard for admissibility. Stated differently, we must determine whether Leventhal’s challenged expert testimony qualifies as “ ‘scientific evidence.’ ” See State v. Reid, 254 Conn. 540, 546, 757 A.2d 482 (2000).
In Porter, our Supreme Court “explicitly adopted the Daubert test to determine the admissibility of scientific evidence . . . [but it] did not explicitly overrule Connecticut precedent regarding the evidence to which such a test should apply.”
On the basis of our review of relevant case law, Leventhai’s testimony did not rise to the level of scientific evidence. We recognize that no appellate court in this state has held that the technique for evaluating the behavior of sexually abused children is not “scientific evidence.” In Borrelli, however, our Supreme Court held that expert testimony concerning battered wom
Further examination of Leventhal’s testimony reveals that it was very similar to the nonscientific expert testimony admitted in Borrelli. Like the expert in Borrelli, Leventhal did not personally examine the victim. Although he formed a personal opinion as to the defendant’s ultimate guilt and testified that there were signs that the victim had herpes before she was diagnosed, he did not offer any opinion as to whether the victim in fact had been sexually abused. Leventhal “did not apply any scientific instrument or test to specific evidence in the case” and he “did not apply any scientific test to a hypothetical question posed by the state.” Id., 164-65.
Leventhal merely explained, on the basis of his experience and education, how children subjected to sexual abuse might act under certain circumstances. Additionally, his method of studying and comparing the allegations of numerous child victims of sexual abuse based on his education and experience was accessible to the court, and the value of his testimony was rooted in its assistance to the court in viewing and evaluating the evidence.
We find, on the basis of the circumstances of this case, that the court was in a position to weigh the probative value of the testimony without abandoning common sense and sacrificing independent judgment to the expert’s assertions based on his special skill or knowledge, and that this evidence was not based on obscure scientific theories that were potentially misleading to the trier of fact. We conclude, therefore, that,
IV
The defendant’s final claim is that the court’s evidentiary errors deprived him of a fair trial. The defendant claims that the court’s admission of constancy of accusation testimony, coupled with Leventhal’s expert testimony, constituted reversible, cumulative evidentiary error. Specifically, he argues that the court allowed the state’s constancy of accusation witnesses to testify “mechanically” and “repeatedly” as to the details of the victim’s allegations, and that Leventhal’s testimony was speculative. We do not agree.
Because we have concluded that the trial court properly admitted the challenged constancy of accusation testimony, along with Leventhal’s expert testimony, no error exists.
The judgment is affirmed.
In this opinion O’CONNELL, J., concurred.
At trial, however, the victim’s mother asserted that the defendant was innocent and that the victim had lied about the entire six year period during which she was repeatedly sexually abused.
The court in the present case held that while the victim’s testimony “contained inconsistencies in various respects, [it found] her basic story of sexual abuse by the defendant to be credible.”
Because we conclude that the state neither possessed reasonably precise information regarding more specific dates nor breached its duty to provide such dates, we likewise conclude that the defendant has not suffered any harm. Alternatively, were we to assume that the state had access to reasonably certain information or that the court abused its discretion when it denied the defendant’s motion for a bill of particulars, we nevertheless would conclude that the defendant has failed to show any prejudice that resulted from the court’s denial of his motion. “To establish prejudice, the defendant must show that the information was necessary to his defense, and not merely that the preparation of his defense was made more burdensome or difficult by the failure to provide the information. . . . [T]his court has on numerous occasions adverted to sources extrinsic to the specific count or information to determine whether the defendant was sufficiently apprised of the offense charged.” (Citations omitted; internal quotation marks omitted.) State v. Kyles, supra, 221 Conn. 654.
In the present case, before the trial began, the defendant had access to the same information concerning the alleged dates of the charged offenses as did the state. The defendant cannot now claim that he was unaware of the specific dates omitted from the state’s final information because he had access to such information through discovery. See State v. Madagoski, 59 Conn. App. 394, 404-405, 757 A.2d 47 (2000), cert. denied, 255 Conn. 924, 767 A.2d 100 (2001).
Additionally, the defendant has not demonstrated that such information was necessary to his defense. The focus of his theory of defense was that the victim lied about the entire six year period in which she claimed that he had sexually abused her. We are not persuaded by the defendant’s assertion that information regarding specific dates within a two week period that occurred in the last month of a six year time frame was “necessary” to his defense. State v. Kyles, supra, 221 Conn. 654.
Both the defendant and the state refer to King by her former last name, Hill.
See State v. Troupe, supra, 237 Conn. 297; State v. Kinney, 44 Conn. 153 (1876); State v. De Wolf, 8 Conn. 93, 100 (1830).
The victim testified on direct examination in relevant part as follows:
“[Assistant State’s Attorney]: Can you tell us specifically what you told [Peterson] about [an incident of sexual abuse]?
“[Victim]: I told her that [the defendant] had . . . thrown me down on the bed. ... I told her that I was getting out of the shower and I was— and [the defendant] threw me down on his bed and tried to have intercourse with me.
* **
“[Assistant State’s Attorney]: What do you mean that he tried to have intercourse with you?
“[Victim]: He tried to put his penis inside of me.
“[Assistant State’s Attorney]: Where inside of you?
* * *
“[Victim]: In my vagina.
* * *
“[Assistant State’s Attorney]: Did he touch you in any other way on that occasion?
“[Victim]: He tried to touch my breasts.
* * *
“[Assistant State’s Attorney]: And did he touch your—did he touch his penis to any part of your body?
“[Victim]: Yes.
“[Assistant State’s Attorney]: What part of your body?
“[Victim]: My vagina.”
The victim further testified as to the kind of sexual abuse she suffered over the six year period in relevant part as follows:
“[Assistant State’s Attorney]: In what manner did the defendant touch you?
“[Victim]: In a sexual way?
“[Assistant State’s Attorney]: Yes.
“[Victim]: Yes. He would try to touch my breasts and try to make me . . . [p]ut my mouth on his penis, and try to have intercourse with me.
“[Assistant State’s Attorney]: Using what?
“[Victim]: Has penis.
“[Assistant State’s Attorney]: Did he ever have intercourse with you using his penis?
“[Victim]: No.
*325 “[Assistant State’s Attorney]: Did he ever put his penis in your mouth?
“[Victim]: No.
“[Assistant, State’s Attorney]: Did he try?
“[Victim]: Yes.
“[Assistant State’s Attorney]: Did there ever come a time when he put anything inside of your vagina?
“[Victim]: Yes.
“[Assistant State’s Attorney]: How often between 1990 and 1996 did these incidents happen?
“[Victim]: About three or four times a week.
“[Assistant State’s Attorney]: What did he put inside your vagina?
“[Victim]: His fingers.
* ** :|:
“[Assistant State’s Attorney]: What would you be doing when the incidents happened, or just before the incidents happened?
“[Victim]: Most of the time I was getting out of the shower.”
On cross-examination, defense counsel elicited information about acts of cunnilingus:
“[Defense Counsel]: Did [the defendant] ever put his mouth on your vagina?
“[Victim]: He tried to, yes.
“[Defense Counsel]: I didn’t ask you if he tried to. I asked you if he did.
“[Victim]: Yes.
“[Defense Counsel]: He did. Is that your answer?
“[Victim]: Yes.”
Prior to the grandmother’s testimony, the victim testified as to the facts of the sexual assaults and attempted sexual assaults, and identified her friend as the person to whom she reported the incident.
Subsequent to Porter, the United States Supreme Court extended a trial court’s “gatekeeping” function under the Daubert standard to testimony involving “ ‘technical’ ” or “ ‘other specialized’ knowledge” of the witness. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999). We note that the Connecticut Code of Evidence “takes no position” on the United States Supreme Court’s extension of the Daubert standard. See Conn. Code Evid. § 7-2, commentary. Although we do not apply such an extension in this case, we note that the trial court held that Leventhal’s testimony satisfied the threshold inquiry of Daubert. On the basis of the court’s own experience and the witness’ testimony, the court was satisfied with the scientific validity of Leventhal’s position and found his testimony to be helpful. See State v. Porter, supra, 241 Conn. 89-90. On the basis of our decision in part III of this opinion, we do not reach the question of whether the trial court properly made such a conclusion.
Prior to Porter, Connecticut used the standard set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), forthe admissibility of scientific evidence. Subsequent to Porter, the Frye standard was replaced with the Daubert standard.
Additionally, although State v. Spigarolo, supra, 210 Conn. 359, is not conclusive on the issue of what constitutes scientific evidence, we note that where the defendant has sought to impeach the testimony of the minor victim based on inconsistencies, partial disclosures, or recantations relating to the alleged incidents, the state may present expert opinion evidence that such behavior by minor sexual abuse victims is common. See id., 380. Thus, satisfaction of the Daubert standard for admissibility is not necessary under such circumstance as long as the testimony “[meets] the prerequisite of being ‘helpful’ to the [court].” State v. Borrelli, supra, 227 Conn. 164.
In the present case, defense counsel sought to impeach the victim based on various inconsistencies. Because our determination of this issue hinges on whether Leventhal’s testimony was scientific, Spigarolo is not fully dis-positive of the issue.
Dissenting Opinion
dissenting. I respectfully dissent and would reverse the conviction and order a new trial because I believe that a person accused of a crime is entitled under our state and federal constitutions to the date or approximate dates within which the accused is said to have committed a crime if that information is known to the child victim and thus available to the state. U.S. Const., amend. VI, amend. XIV; Conn. Const., art. I, § 8. While we recognized in State v. Saraceno, 15 Conn. App. 222, 237, 545 A.2d 1116, cert. denied, 209 Conn. 823, 824, 552 A.2d 431, 432 (1988), that child
If the state did not possess the information, as it claims, it is because it never asked the child victim for it. It is one thing to hold, as did our Supreme Court in State v. Stepney, supra, 191 Conn. 241-42, that a seven hour time frame as to when the murder victim died was reasonable where a more limited and precise time frame could not be determined by the state.
The Stepney court held that even if the state could have narrowed the seven hour time frame during which the Stepney victim’s murder occurred, the burden of defending against an information alleging that the murder occurred within a seven hour time frame was not of “sufficient magnitude to prejudice his ability to present an adequate defense.” State v. Stepney, supra, 191 Conn. 242.
