Robert H., In re

• Decision Date: 20 May 1986
• Citation: 509 A.2d 475,199 Conn. 693
• Court: Connecticut Supreme Court
• Parties: , 54 USLW 2634 In re ROBERT H. In re RICHARD C. In re BLAIR P.

Page 475

509 A.2d 475

199 Conn. 693, 54 USLW 2634

In re ROBERT H.In re RICHARD C In re BLAIR P.

Supreme Court of Connecticut.

Argued Jan. 16, 1986.

Decided May 20, 1986.

Joseph Dimyan, Danbury, with whom, on brief, were Robert V. Cimmino, New Milford, and Catherine A. Rivard, Danbury, for appellants in No. 12516andNo. 12517(juveniles).

Donald A. Mitchell, Danbury, for appellant in No. 12540(juvenile).

John H. Kearney, Court Advocate, for appellee(State).

Before HEALEY, SHEA, DANNEHY, SANTANIELLO and CALLAHAN, JJ.

ARTHUR H. HEALEY, Associate Justice.

The principal issue on this appeal is whether the trial court erred in granting the motion to quash the three respondents' subpoena that sought records from a sexual assault counselor who assisted the victim at a rape crisis center because of the statutory privilege accorded by General Statutes § 52-146k.The respondents Robert H. and Richard C. additionally raise the issue of whether there was sufficient evidence of intent to prove they had violated General Statutes §§ 53a-70and53a-8.The respondent Blair P. also raises two issues: (1) whether he was adjudged delinquent without sufficient evidence and without required findings; and (2) whether the trial court made a disposition of him without the required findings under § 46b-140(b).

This case arises out of an adjudication of delinquency and a commitment of the respondents, Blair, Richard and Robert, to the custody of the department of children and youth services (DCYS) for a period not to exceed one year.The three juveniles, all fourteen or fifteen years old, ¹ were adjudicated delinquent on the charge of sexual assault in the first degree in violation of General Statutes § 53a-70.²This appeal followed.³

The three juveniles entered denials to the charges and a joint adjudication hearing was held before the trial court, Maiocco, J.The evidence adduced at the hearing included the following: The fourteen-year-old victim, T, and two friends, Mary Ann and Kristi, were at the apartment of Mary Ann's parents in the afternoon on January 15, 1984.While at the apartment, Mary Ann's brother, the respondent Richard, and the other two respondents, Blair and Robert, arrived as did two other girls, Kim and Brenda.The victim testified that they listened to records and danced in the living room.Mary Ann and Brenda testified that T was "grabbing" the "private parts" and buttocks of Richard and Blair.Kim and Brenda left during the course of the afternoon.The victim testified that Blair and she were in Mary Ann's bedroom and that "Blair wanted to fool around and stuff like that and I wasn't willing."At this point, Richard and Robert entered the room and helped Blair remove T's pants and hide them.T said she was "kicking and screaming for Mary Ann and Kristi" but that they did not respond.Either Richard or Robert came into the room and helped Blair in his attempt to keep T's legs apart.Blair then inserted his finger into T's vagina.A detective, however, who was one of the officers assigned to investigate the incident, testified that a written statement taken from T on the night of the assault in the hospital stated: "[Blair] kissed me, touched my breasts, and he put his fingers in my vagina."T, however, testified that this first incident of sexual activity occurred while she was "resisting" and "kicking."Because she still refused Blair's advances, T testified, Blair called Robert and Richard into the room and Robert squirted baby oil on her.She put on a robe and started to go into another bedroom to clean herself in an adjoining bathroom.At this point, she was pulled down onto the bed.When the lights were turned on, she saw the three respondents standing there.The telephone rang and Blair left the room.T sat up and she yelled to Kristi that if it was her father on the phone to relay the message that she had already left "because [she] figured that they'd let [her] go because they might have thought [her] dad would come looking for [her]."Blair walked into the room carrying a broom.Robert was holding the victim's feet and Richard was holding her arms.Blair then pushed the broom "very hard" into her vagina.The juveniles then returned her pants.She dressed, left the apartment and walked home.She telephoned Mary Ann when she reached her home because she was in "a lot of pain."She told her mother"what happened" and her parents took her to the hospital where she had to undergo an operation for an injury received during the second incident of intercourse.

Three of the girls who were at the apartment testified that they did not hear T scream, yell, or call out during the time that T was in the bedroom with Blair.Mary Ann and Kristi testified that they each saw Blair in the kitchen holding a broom.Mary Ann also testified that before "everybody had went into that room with [T]"she saw Blair in the kitchen "wiping [the broomstick] with a napkin."

The trial court made several findings.The court determined that "the over-all attitude prevailing in the [apartment] the afternoon of January , 1984, was one of frivolity and sexual expressions, especially as it involved [T] and the three Respondents....It is also clear that all three boys participated in the events that occurred in the bedroom of [Richard's mother].The Court can also be reasonably satisfied that [T] continued to be a willing participant, continuing against feigned protestations.Granting all that counsel has said in defense as being true up to this point, granting that she was willing up to this point, the Court still feels that until [sic] the introduction of the broom into the scene that the complexion and atmosphere completely changed....The Court does find that the testimony of [T] in this respect is credible and, as it relates to [Blair], is sufficient to establish beyond a reasonable doubt that he did penetrate the vagina of [T] with a broom without her consent and by use of force in the nature of assistance of [Robert] and [Richard] and their physically restraining her and holding her down while the act was consummated."The trial court specifically acknowledged that defense counsel"thoroughly and exhaustively cross-examined [T] on claimed inaccuracies in the Court testimony as compared to written statements attributed to her and marked in Evidence."Nevertheless, "[s]uffice to say that the Court has reflected on her in-Court testimony and found that it was consistent throughout.Further, close examination of the claimed inconsistencies between in-Court testimony and her written statements show that they are more in the nature of amplifications, qualifications or explanations of the written statements and not truly inconsistencies."

The respondents claim that it was because of "yet other inconsistent statements made by" T that they sought to introduce the records from the Rape Crisis Service.The respondents⁴ issued a subpoena duces tecum to Debbie Kemlage of the Women's Center of Greater Danbury.An attorney for the center filed a motion to quash the subpoena because of the testimonial privilege created by Public Acts 1983, No. 83-429, now General Statutes § 52-146k.⁵The respondents' offer of proof was that the evidence sought from the center's records would show that there were "substantial inconsistencies" in T's testimony and that T was "coached in her testimony."In support of their subpoena, the respondents cited the state and federal constitutions, specifically the fifth and fourteenth amendment rights to due process and the sixth amendment right to compulsory process to the federal constitution and the due process clause of article first, § 8 of the state constitution.The respondents stated that the privilege claimed by the counselor was only a legislative enactment and that it "must of necessity fall in lieu of the Federal and State constitutions."The respondents also requested proof that the center and the counselor had met the requirements of the statute before asserting the privilege.The attorney for the center informed the court that the supervisor of the rape crisis center, who would be able to testify and present the necessary documents to qualify the center under the statute, was unavailable.The court continued the hearing on the motion to quash until the next week and the center's attorney withdrew the motion to quash at that time.

On March 20, 1984, the court resumed the hearing and the center's attorney again moved to quash the subpoena.The center called as its first witness Susan Jamison, the coordinator of the rape crisis center, and offered testimony for the purpose of qualifying the center and its counselors, under General Statutes § 52-146k, on such subjects as training, services and the purpose of the center.The defense sought to question Jamison as to whether she was the individual who counseled T.The attorney for the center objected, stating that the identity of the counselor could not be divulged under the statute.Defense counsel then argued that that portion of the statute that requires the privileged statements to have been given to a "properly qualified counselor" could not be established.The trial court agreed, calling it a "Catch 22" situation, and "the type of Public Act that needs more work" because "just to get to the point as to whether or not an exception exists, the very information that the statute indicates should not be divulged would almost seem to be absolutely necessary to know whether that exception exists."Nevertheless, the court sustained the objection to the question as to the identity of the counselor.The trial court found that the records fell within the statutory privilege and that the blanket prohibition of the statute precluded the respondents' review of the records.The court found that the Rape Crisis Center and its files qualified under the statute and that the defense did not make a showing that one of the exceptions in § 52-146k(...