Doe v. Thames Valley Council for Community Action, Inc.

• Decision Date: 21 May 2002
• Parties: NICHOLE DOE ET AL. v. THAMES VALLEY COUNCIL FOR COMMUNITY ACTION, INC., ET AL.
• Court: Connecticut Court of Appeals

69 Conn. App. 850

797 A.2d 1146

NICHOLE DOE ET AL. v. THAMES VALLEY COUNCIL FOR COMMUNITY ACTION, INC., ET AL.

(AC 20596), (AC 20597)

Appellate Court of Connecticut.

Argued October 16, 2001.

Officially released May 21, 2002.

Foti, Flynn and Peters, Js. John B. Farley, with whom, on the brief, were George D. Royster, Erik J. Ness and Ralph W. Johnson III, for the appellant (named defendant).

Henry C. Ide, for the appellant (defendant Scott Dixon).

Gilbert Shasha, for the appellees (plaintiffs).

Opinion

PETERS, J.

This civil action concerns claims for damages for alleged sexual assaults of preschool girls by their school bus driver. At trial, none of the girls was available as a witness because none remembered any of the alleged assaults. The principal issue on appeal is the admissibility, under the residual exception to the rule against hearsay, of the testimony of third party interviewers who spoke with the girls at a time when the girls still had some recall about the alleged sexual assaults. The trial court concluded that, under the circumstances of this case, the contested testimony was admissible because it was both necessary and reliable. We agree and affirm the judgment of the trial court.

The plaintiffs, four minor children, N, J, L and A brought an action, by and with their parents, against the defendants, Thames Valley Council for Community Action, Inc. (employer), and Scott Dixon, in which they alleged that Dixon had sexually assaulted the children and that the employer had acted negligently in hiring and supervising Dixon. Both defendants denied the occurrence of the alleged sexual assaults, and the employer, in addition, denied any liability for negligence. A jury found in favor of the plaintiffs against both defendants and assessed economic and noneconomic damages in the total amount of $526,600.¹ The court denied the defendants' motions for judgment notwithstanding the verdict, to set aside the verdict and for remittitur and rendered judgment against both defendants.

In their appeal from this judgment, the defendants have raised three issues. The defendants maintain that the court (1) abused its discretion by admitting into evidence hearsay statements about the alleged sexual assaults, (2) abused its discretion by admitting into evidence the expert testimony of a clinical psychologist and (3) improperly awarded damages for which there was no evidentiary basis. The defendant employer has not pursued any appellate claim challenging its liability for negligence.

I RESIDUAL HEARSAY

The defendants' principal claim is that the court should not have permitted various interviewers of the girls to testify about the girls' statements of sexual abuse. The court decided that all of these statements were admissible under the residual exception to the hearsay rule, and one was also admissible under the medical treatment exception.²

"[T]he trial court has broad discretion in ruling on the admissibility [and relevancy] 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." (Citation omitted; internal quotation marks omitted.) New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745, 752, 680 A.2d 301 (1996). We are not persuaded that there was any such abuse of discretion.

Before addressing the defendants' specific claims of evidentiary impropriety, we set forth generally applicable legal principles. A basic rule is that "[a]n out-ofcourt statement offered to prove the truth of the matter asserted is hearsay and is generally inadmissible unless an exception to the general rule applies." State v. Hines, 243 Conn. 796, 803, 709 A.2d 522 (1998). The residual exception is one of these exceptions, but it is one that should be used very rarely and only in exceptional circumstances. United States v. Medico, 557 F.2d 309, 315 (2d Cir.), cert. denied, 434 U.S. 986, 98 S. Ct. 614, 54 L. Ed. 2d 480 (1977). The residual exception has, however, been held to be "particularly well suited for the admission of statements by victims of child abuse and has been used in federal and state courts for this purpose. See, e.g., United States v. Dorian, 803 F.2d 1439 (8th Cir. 1986); United States v. Nick, 604 F.2d 1199 (9th Cir. 1979)...." (Citation omitted.) State v. Dollinger, 20 Conn. App. 530, 540, 568 A.2d 1058, cert. denied, 215 Conn. 805, 574 A.2d 220 (1990). Finally, we note that, in this civil case, recourse to the residual exception does not implicate the confrontation clause contained in the United States constitution³ or the Connecticut constitution.⁴

When applicable, the residual exception to the hearsay rule permits statements to be admitted into evidence under limited circumstances that resemble traditional exceptions to the general prohibition of hearsay statements. The proponent of the admissibility of such evidence must demonstrate that the proffered testimony is necessary and that the statements are supported by guarantees of reliability that are equivalent to evidence admitted under traditional hearsay exceptions. Conn. Code Evid. § 8-9; see also State v. McClendon, 248 Conn. 572, 583, 730 A.2d 1107 (1999); State v. Lewis, 245 Conn. 779, 805, 717 A.2d 1140 (1998); State v. Hines, supra, 243 Conn. 810; State v. Oquendo, 223 Conn. 635, 664, 613 A.2d 1300 (1992); State v. Sharpe, 195 Conn. 651, 665-66, 491 A.2d 345 (1985). State v. Dollinger, supra, 20 Conn. App. 541, lists various factors that may help a court to determine whether these guarantees of reliability are present.⁵

In this case, the parties agree that the necessity requirement has been met because of the lack of recall on the part of the girls of what happened between September and October of 1990. What is at issue is whether the plaintiffs have satisfied the second requirement that admissible hearsay statements must be supported by guarantees of reliability. That requirement is met "in a variety of situations, one of which is when the circumstances are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed. State v. Sharpe, supra, 195 Conn. 665. At minimum, the statement must independently bear adequate indicia of reliability to afford the trier of fact a satisfactory basis for evaluating [its] truth.... State v. Williams, 231 Conn. 235, 249, 645 A.2d 999 (1994); accord State v. Lapointe, 237 Conn. 694, 737, 678 A.2d 942, cert. denied, 519 U.S. 994, 117 S. Ct. 484, 136 L. Ed. 2d 378 (1996)." (Internal quotation marks omitted.) State v. Hines, supra, 243 Conn. 810.

We must assess whether the trial court abused its discretion in permitting the jury to hear testimony about statements by very young girls, none older than four years at the time of the alleged assaults. To determine whether the statements bore "adequate indicia of reliability," we must take into account the manner in which the testifying interviewers elicited the girls' statements. See Washington v. Schriver, 255 F.3d 45, 57 (2d Cir. 2001) (relying on consensus within academic, professional and law enforcement communities that improper interviewing techniques "can create a significant risk that the interrogation itself will distort the child's recollection of events, thereby undermining the reliability of the statements"). Walter A. Borden, a psychiatrist who was called as an expert witness by the defendants, described procedures that are likely to diminish the reliability of such statements. Among the procedures to be avoided are: leading questions; questions that, intentionally or unintentionally, amount to coaching; questions that trigger a young child's eagerness to please; questions that communicate that the interviewer is anxious, angry or upset; or questions that direct a child's attention away from a topic on which the child has been speaking. Although it is appropriate for interviewers to engage a child in play therapy, an interviewer must not direct the manner in which the child plays or chooses the toys with which to play. The use of drawings done by adults and anatomically correct drawings, rather than allowing a child to draw his or her own drawings, is considered directive. Statements are particularly unreliable if they are elicited in a single interview or by an untrained interviewer. Borden did not determine whether one of the statements at issue was so unreliable that it should be excluded, although he questioned the reliability of one of the witnesses, a police officer.⁶

Bearing in mind Borden's analysis of potential pitfalls in interviews of very young children, we now turn to a detailed examination of the reliability of each of the statements whose admissibility is at issue. We will discuss each interviewer separately.

A

Christine Diebel-Hempsted had therapy sessions with N and J.⁷ Although she is not a licensed counselor, Diebel-Hempsted has a master's degree in clinical psychology and had been employed at a sexual abuse treatment center. For three years, she worked in a program specifically designed to treat sexually abused preschoolers. Her training sensitized her to the interviewing techniques that are appropriate for preschoolers who might have been sexually abused. She guarded against the risk of coaching and avoided communicating her own feelings to the child. Her description of the nonthreatening ways in which she had conducted her interviews coincided entirely with the professional guidelines recommended by Borden. As a result, the reliability of the statements made by N and J is greatly strengthened.⁸

N's Statements to Diebel-Hempsted

N was born in October, 1986. She began her therapy sessions with Diebel-Hempsted on October 2, 1990, when she was not quite four years old. These sessions continued until December, 1991.

N's aunt brought her to Diebel-Hempsted because of behavioral problems at home. N knew the defendant as Scott.⁹ She had no problem identifying him because she had an...