State v. Toccaline, (SC 16298)

• Citation: 783 A.2d 450,258 Conn. 542
• Decision Date: 13 November 2001
• Docket Number: (SC 16298)
• Court: Supreme Court of Connecticut
• Parties: STATE OF CONNECTICUT v. LENNARD J. TOCCALINE

258 Conn. 542

783 A.2d 450

STATE OF CONNECTICUT v. LENNARD J. TOCCALINE

(SC 16298)

Supreme Court of Connecticut.

Argued September 10, 2001.

Officially released November 13, 2001.

Borden, Norcott, Katz, Vertefeuille and Zarella, JS. Richard S. Cramer, for the appellant (defendant).

Michele C. Lukban, assistant state's attorney, with whom, on the brief, was Debra Collins, assistant state's attorney, for the appellee (state).

Opinion

NORCOTT, J.

The sole issue in this appeal is whether under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or the plain error doctrine, the defendant may prevail on an unpreserved claim regarding the admission of certain expert testimony. More specifically, the defendant claims that the trial court improperly permitted an expert witness to offer his opinion as to the credibility of the victim's claims of sexual assault by the defendant and further, to testify regarding the guilt of the defendant. We disagree with the defendant and affirm the judgment of the trial court.

The defendant, Lennard J. Toccaline, appeals from the judgment of conviction, after a jury trial, of sexual assault in the first degree in violation of General Statutes (Rev. to 1995) § 53a-70 (a) (2),¹ sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A),² three counts of risk of injury to a child in violation of General Statutes (Rev. to 1995) § 53-21 (2), as amended by No. 95-142, § 1, of the 1995 Public Acts,³ and, following a court trial, of being a persistent felony offender in violation of General Statutes (Rev. to 1995) § 53-40 (a).⁴ The defendant had been charged in the first part of a two part information with one count of sexual assault in the first degree, two counts of sexual assault in the fourth degree, and three counts of risk of injury to a child. Because the defendant previously had been convicted of sexual assault in the first degree, he also was charged in the second part with being a persistent dangerous felony offender. The jury returned a verdict of guilty on the charges of sexual assault in the first degree, one count of sexual assault in the fourth degree, and three counts of risk of injury to a child. The defendant elected to be tried by the court on the persistent dangerous felony offender charge. Following his conviction on that count, the defendant was sentenced to a total effective term of forty years imprisonment, execution suspended after twenty-five years, and ten years probation. This appeal followed.⁵

On the basis of the evidence presented, the jury reasonably could have found the following facts. The victim, MC, was born on May 7, 1984. In 1996, the defendant, who was thirty-five years old, was the boyfriend of the victim's aunt. The defendant and the victim's aunt lived together in a house near a lake, where MC sometimes visited. Usually, the defendant went to MC's house to pick her up and bring her to her aunt's house. During the visits, MC and the defendant often played video games or went fishing together.

Three acts of sexual contact by the defendant occurred during the period from June, 1996, through September, 1996, when MC was twelve years old. In the first incident, the defendant kissed MC's breasts and vaginal area. In the second incident, which occurred in August, 1996, when the defendant and MC were fishing from a boat on the lake, the defendant placed MC's hand on his penis. He then put his hand over hers and manually stimulated himself until he ejaculated. During the third incident, which occurred in September, 1996, the defendant invited MC to come to his bed. He then got on top of her, pinned her hands above her head, and penetrated her vagina with his penis. MC did not tell her mother or aunt about the events with the defendant because she was afraid of the defendant. In October, 1996, MC and her family moved to another state.

In February, 1998, while cleaning MC's bedroom, her mother found a letter written to MC from a man named W, who was a friend of MC's family. W had begun to baby-sit for MC and her siblings in the summer of 1997.⁶ At that time, W was thirty-two years old and MC was thirteen. In the letter, W told MC that he wanted to hold her and take her pain away.

MC's mother was concerned about the contents of the letter and confronted W about his relationship with MC. Her mother also confronted MC about her relationship with W. Although she denied any sexual contact with W, MC told her mother about the incidents that had occurred with the defendant during the summer of 1996. MC also had told W about the defendant's conduct prior to disclosing this information to her mother.

The defendant gave a statement to the police in which he responded to MC's allegations of sexual abuse. In the statement, the defendant claimed that he and MC often "horse played" together. The defendant admitted that he may have had sexual contact with MC during this horseplay, although, he claimed, MC never objected to such contact and that the contact did not constitute intercourse.⁷ The statement was entered into evidence and read aloud to the jury.

On appeal, the sole issue is whether, under Golding or the plain error doctrine, the defendant may prevail on his unpreserved claim regarding the admission of certain expert testimony. Because we do not consider the defendant's claim to be either constitutional in nature or to constitute plain error, we affirm the judgment of conviction.

Elton Grunden, a licensed clinical social worker at a counseling and mental health center in the state to which MC's family had moved, testified on direct examination for the state. He had met with MC in February, 1998, to discuss her allegations of sexual abuse by the defendant. Grunden testified that in that meeting, MC had described instances of sexual contact with the defendant. He also stated his opinion that the victim had suffered sexual abuse perpetrated by the defendant. Finally, Grunden testified that it was his opinion that MC's testimony was truthful, based, in part, on the consistency of her accusations.⁸ The defendant did not object to any of Grunden's testimony. Nevertheless, the trial court did issue a constancy of accusation instruction to the jury regarding Grunden's testimony on direct examination.⁹

Because, as noted previously, the defendant did not object to Grunden's testimony at the trial court, to prevail on his claim before this court he must, as he admits, do so under either State v. Golding, supra, 213 Conn. 233, or the plain error doctrine. The state concedes that Grunden's testimony was improper, but argues that the defendant's unpreserved claims cannot succeed under either Golding or the plain error doctrine. We agree with the state. Under Golding, "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail." (Emphasis in original.) Id., 239-40.

The defendant is not entitled to prevail under Golding because his claim does not raise a constitutional issue. In essence, the defendant attempts to "`put a constitutional tag on a nonconstitutional evidentiary ruling.'" State v. Vilalastra, 207 Conn. 35, 46, 540 A.2d 42 (1988). We previously have stated that "the admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved." (Internal quotation marks omitted.) Id. "The trial court's exercise of discretion in admitting expert testimony is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law." State v. Smith, 35 Conn. App. 51, 70, 644 A.2d 923 (1994). The errors claimed by the defendant in the present case are simply evidentiary in nature.¹⁰ Although the trial court, upon proper objection by the defendant, would have been required to exclude this testimony, the presentation of Grunden's statements to the jury in the absence of such an objection did not implicate a constitutional right or result in a fundamentally unfair trial.¹¹

The case presented is thus distinguishable from this court's recent decision in State v. Grenier, 257 Conn. 797, 778 A.2d 159 (2001).¹² In Grenier, we determined that the defendant was entitled to a new trial because expert opinion testimony had been improperly admitted concerning the victim's credibility. Id, 801. In Grenier, unlike the present case, the defendant had objected to the improper testimony by the expert, thus preserving the issue for appeal, and our review was not limited to Golding or the plain error doctrine. Id, 802-804. Instead, our focus was on whether the improperly admitted testimony was harmful. Id, 806. We concluded that the error was not harmless, in part, because the state's case rested entirely on the credibility of the victim. Id, 807.¹³

Finally, the defendant urges this court, pursuant to Practice Book § 60-5, to conclude that the admission of Grunden's testimony constituted plain error.¹⁴ We disagree with the defendant. "Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings." (Internal quotation marks omitted.) Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 25, 664 A.2d 719 (1995). Plain error is a doctrine that should...