53 Conn. App. 414 | Conn. App. Ct. | 1999
Opinion
The defendant, Charles Whitley, appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes (Rev. to 1991) § 53a-70 (a) (2),
The jury reasonably could have found the following facts. Between July 27 and November 13, 1992, the defendant lived with his girlfriend and her three sons in their apartment in Hartford. During this period, the boys’ mother paid the defendant, who was not the father of the children, to baby-sit her sons from 7 a.m. to 2 p.m. while she attended Church Academy School.
On more than one occasion when the defendant was baby-sitting the boys, the defendant sexually assaulted C, who was six years old at that time. According to C, the defendant would order C to lie down on his mother’s bed and pull his pants down. The defendant would then penetrate C anally. In addition, the defendant once forced C to perform fellatio on him. On one occasion, C’s brother, B, walked by his mother’s room while the door was open and witnessed the defendant assaulting C.
C did not report the abuse until one week after the defendant had moved out of the apartment and relocated to Florida. On November 30, 1992, C was interviewed by Diane Edell, a social worker at Saint Francis Hospital and Medical Center. During the interview, C disclosed to Edell both types of sexual abuse by the defendant. C was thereafter examined by Audrey Courtney, a pediatric nurse practitioner, in December, 1992. Courtney reported C’s anal and genital areas to be normal.
I
The defendant first claims that the trial court improperly admitted expert testimony. He specifically refers to the testimony of Courtney and Elaine Yordan,
“[T]he trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed. State v. Campbell, 225 Conn. 650, 654, 626 A.2d 287 (1993); State v. Kemp, [199 Conn. 473, 476, 507 A.2d 1387 (1986)]; State v. Palmer, 196 Conn. 157, 166, 491 A.2d 1075 (1985); Siladi v. McNamara, 164 Conn. 510, 513, 325 A.2d 277 (1973); Coffin v. Laskau, 89 Conn. 325, 330, 94 A. 370 (1915). State v. Esposito, 235 Conn. 802, 834, 670 A.2d 301 (1996). Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the
The defendant attacks the admissibility of Courtney’s and Yordan’s testimony on four grounds: relevancy, impermissible bolstering of the victim’s credibility, the testimony was an expression of opinion on an ultimate issue and the testimony was more prejudicial than probative.
A
The defendant first claims that the trial court improperly admitted expert testimony that was irrelevant. We disagree. “Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter. ... A party is not required to offer such proof of a fact that it excludes all other hypotheses; it is sufficient if the evidence tends to make the existence or nonexistence of any other fact more probable or less probable than it would be without such evidence. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Citations omitted; internal quotation marks omitted.) State v. Kiser, 43 Conn. App. 339, 361-62, 683 A.2d 1021, cert. denied, 239 Conn. 945, 686 A.2d 122 (1996), cert. denied, 520 U.S. 1190, 117 S. Ct. 1478, 137 L. Ed. 2d 690 (1997).
B
The defendant next claims that Courtney’s and Yor-dan’s testimony impermissibly bolstered the victim’s credibility. This claim is without merit. “Trial courts have wide discretion with regard to evidentiary issues, and their rulings will be reversed only if there has been an abuse of discretion or a manifest injustice appears to have occurred. . . . Every reasonable presumption will be made in favor of upholding the trial court’s ruling, and it will be overturned only for a manifest abuse of discretion. . . . Accordingly, we must determine whether the prejudicial effect of the testimony outweighed its probative value.” (Citations omitted.) State v. Gracia, 51 Conn. App. 4, 15-16, 719 A.2d 1196 (1998).
When considered in context, Courtney’s and Yordan’s testimony did not paint a blatantly one-sided picture that impermissibly bolstered the victim’s testimony. In
“Q. Again, based on the literature that you’re familiar with about findings in sexual abuse cases, would you expect to find injuries or abnormal examination if a child is sexually abused?
“A. Not necessarily.
“Q. And what are some of the explanations that you are aware of based on literature as to why you might not make a finding when you’re examining a child?
“A. One reason would be that the child wasn’t sexually abused. Another reason would be that an injury might have healed. Another reason would be that it was the type of contact that wouldn’t necessarily cause an injury, like oral sex or anal penetration might not cause an injury. An injury might be healed, did I say that?” (Emphasis added.)
The issue we must address is whether the experts’ testimony, entered over objection, improperly invaded the jury’s function solely to determine the credibility of witnesses. State v. Cintron, 21 Conn. App. 48, 54, 571 A.2d 139 (1990). We are not convinced that the experts’ testimony impermissibly bolstered the victim’s credibility. “In all but the most exceptional circumstances, the trial court should allow adversaries’ counsel, subject to the rules of evidence, to elicit from witnesses whatever responses may appropriately influence the jury’s judgments on credibility. ” State v. Smith,
C
The defendant next claims that the trial court improperly allowed Courtney and Yordan to provide expert testimony to the effect that a finding of no physical injury is consistent with sexual assault. The defendant asserts that this testimony is an opinion on an ultimate issue in the case and, therefore, should not have been admitted. We are unpersuaded.
“An expert witness ordinarily may not express an opinion on an ultimate issue of fact, which must be decided by the trier of fact. State v. Vilalastra, 207 Conn. 35, 41, 540 A.2d 42 (1988); State v. Spigarolo, [210 Conn. 359, 372, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989)]; Kowalewski v. Mutual Loan Co., 159 Conn. 76, 80, 266 A.2d 379 (1970); In re Noel M., 23 Conn. App. 410, 422, 580 A.2d 996 (1990). An expert may, however, give an opinion on an ultimate issue where the trier, in order to make intelligent findings, needs expert assistance on the precise question on which it must pass .... State v. Rodgers, 207 Conn. 646, 652, 542 A.2d 1136 (1988); State v. Vilalastra, supra, 41. [EJvidence of the . . . medical effect upon the human system of the infliction of injuries, is generally not within the sphere of the common knowledge of a lay witness; Collette v. Collette, 177 Conn. 465, 471, 418 A.2d 891 (1979); and requires expert testimony. State v. McClary, 207 Conn. 233, 241, 541 A.2d 96 (1988); Sickmund v. Connecticut Co., 122 Conn. 375, 379, 189 A. 876 (1937). The trial court’s exercise
Despite the defendant’s assertion to the contrary, the existence or absence of physical injury to a victim’s genital or anal area and its relation to a sexual assault is not necessarily an obvious matter within the common knowledge of the average person. In addition, Courtney’s and Yordan’s expert testimony assisted the jury in intelligently assessing the ultimate issue of whether a sexual assault had occurred. Furthermore, a review of relevant portions of the transcript reveals that while Courtney testified that physical injury would not necessarily be found in a case of sexual abuse and Yordan responded affirmatively to the state’s question of whether an absence of physical injury is consistent with sexual assault, they also testified that a lack of physical injury could indicate that an assault did not occur. We conclude, therefore, that the trial court did not abuse its discretion in allowing the state’s experts to testify about the consistency of a lack of physical injury with assault.
D
The defendant further argues that even if the expert testimony was relevant, the trial court improperly admitted Courtney’s and Yordan’s testimony because its prejudicial effect outweighed its probative value. We disagree.
“The trial court, however, should admit only that evidence where its probative value outweighs its prejudicial effect. State v. Maturo, 188 Conn. 591, 597-98, 452 A.2d 642 (1982).” State v. Middlebrook, 51 Conn. App. 711, 720, 725 A.2d 351, cert. denied, 248 Conn. 910, 731 A.2d 310 (1999). “Prejudice is not measured by the
II
The defendant claims finally that the trial court mis-characterized Courtney’s expert testimony in the request to charge the jury and thereby bolstered the victim’s credibility. This claim is without merit.
“Our analysis begins with a well established standard of review. When reviewing [a] challenged jury instruction ... we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is . . . whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . [this court] will not view the instructions as improper. . . . State v. Denby, 235 Conn. 477, 484-85, 668 A.2d 682 (1995).” (Internal quotation marks omitted.) State v. Delgado, 247 Conn. 616, 625, 725 A.2d 306 (1999).
The defendant challenges the portion of the charge in which the trial court commented on Courtney’s expert testimony. The court stated: “[Courtney] went on, on
In response to further insistence by defense counsel, the trial court gave to the jury a supplemental charge, to which defense counsel did not except, in which it emphasized again that it is each juror’s recollection that controls, rather than the trial court’s recollection of the evidence.
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes (Rev. to 1991) § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with a person under thirteen years of age.”
General Statutes (Rev. to 1991) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen
During oral argument, the defendant’s counsel informed the court that the defendant was abandoning his first issue on appeal, which had dealt
In his brief, the defendant also raises an issue with regard to the testimony of Diane Edell. During oral argument, however, the defendant’s counsel stated that Edell’s testimony was not being challenged here. We, therefore, limit our discussion to the testimony of Courtney and Yordan.
During trial, the defendant had filed a motion in limine seeking to prevent any expert from testifying that the lack of physical evidence neither refuted nor confirmed the allegations of sexual abuse, arguing that such testimony is unreliable and concerned an ultimate issue in the case. The trial court denied that motion.
The relevant portion of the trial court’s supplemental charge is as follows: “Now, also I did, toward—at the end of my charge, make certain comments to you and statements to you regarding some of the evidence in the case and that was for the purpose of clarifying the factual or credibility issues you are required to resolve in this particular case. And in that regard, as I told you at the time, with reference to any statements by the court regarding my recollection of what the evidence was, that is not controlling on you but rather it is your own recollections which control the evidence as you recollect it and, as I also indicated, you are, of course, entitled to have testimony, any of the evidence, reread by the court stenographer to you