State v. Andres C.

• Docket Number: SC 20692
• Decision Date: 18 June 2024
• Citation: 315 A.3d 1014,349 Conn. 300
• Parties: STATE of Connecticut v. ANDRES C.
• Court: Connecticut Supreme Court

315 A.3d 1014

349 Conn. 300

STATE of Connecticut

v.ANDRES C.^*

(SC 20692)

Supreme Court of Connecticut.

Argued January 11, 2023

Officially Released June 18, 2024

Richard Emanuel, for the appellant(defendant).

Timothy F. Costello, supervisory assistant state’s attorney, with whom, on the brief, were John P. Doyle, Jr., state’s attorney, and Mary A. SanAngelo and Brian K. Sibley, Sr., senior assistant state’s attorneys, for the appellee(state).

Robinson, C. J., and McDonald, D’Auria, Mullins, Ecker, Dannehy and Bright, Js.^**

MULLINS, J.

₃₀₅The defendant, Andres C., was convicted, after a court trial, of sexual assault in the third degree and risk of injury to a child.During the complainant’s testimony at trial, she revealed that, after the assaults, she had engaged in therapy, and, during that ₃₀₆therapy, she had kept journals, in Spanish, in which she had written about, among other things, her relationship with the defendant and his sexual abuse of her.Following this revelation, defense counsel requested that the trial court review the journals for potential statements and exculpatory information that should be disclosed to the defendant.After a discussion with the court about this revelation, the parties agreed that the complainant would provide the journals to the prosecutor,¹ and, because the journals were written in Spanish, the prosecutor would enlist the assistance of a Spanishspeaking investigator on her staff to help review the journals.On the basis of the investigator’s review, the prosecutor represented to the court that there was no material in the journals that was subject to disclosure under Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215(1963).Out of an abundance of caution, however, she submitted four pages of the journals to the court for its review, indicating that she thought the pages were subject to General Statutes § 54-86f, the rape shield statute.Those four pages were translated into English and reviewed by the trial court, and the court disclosed one page to the defendant as potential impeachment material.

The defendant appealed to the Appellate Court.He alleged that (1)he was entitled to disclosure of the complainant’s journals as the discoverable statements of a witness;seeState v. Andres C.,208 Conn. App. 825, 851, 266 A.3d 888(2021); and (2)the prosecutor violated her Brady obligation by not personally reviewing the journals for Brady material but instead delegating that duty to the investigator.Id., at 855, 266 A.3d 888.The Appellate Court affirmed the judgment of conviction.Id., at 861, 266 A.3d 888.The court concluded, first, that the defendant had waived his claim that he was entitled to disclosure ₃₀₇of the contents of the complainant’s journals;id., at 851–52, 266 A.3d 888; and, second, that the prosecutor did not violate Brady by delegating the review of the journals to the investigator.Id., at 855, 860-61, 266 A.3d 888.

We then granted the defendant’s petition for certification to appeal to this court, limited to the following issues: (1)"Did the Appellate Court incorrectly conclude that the defendant had waived his claim that he was entitled to disclosure of the contents of the complainant’s journals as the discoverable statements of a witness?"And (2)"[d]id the Appellate Court incorrectly conclude that the Brady review … of the complainant’s journals by a nonlawyer member of the state’s attorney’s office was constitutionally adequate?"(Citation omitted.)State v. Andres C.,342 Conn. 901, 270 A.3d 97(2022).We resolve the first question on the alternative ground that the journals were not discoverable statements.We also conclude that the Appellate Court correctly concluded that the prosecutors were not constitutionally obligated to personally review the complainant’s journals for Brady material.Accordingly, we affirm the judgment of the Appellate Court.

The Appellate Court’s opinion sets forth the following facts that the trial court reasonably could have found and procedural history."When [the complainant] was ten years old, [she], along with her mother and siblings, moved into her grandmother’s home.Shortly thereafter, the defendant, the [complainant’s] uncle, moved in.At some point, during the time that the [complainant] and the defendant were living at the grandmother’s house, the defendant … had the [complainant] apply lotion to his penis and masturbate him.… This type of abuse occurred more than ten times over the next two years while the [complainant] lived at her grandmother’s house and continued after she had moved to another house.

₃₀₈"The [complainant] described other instances of inappropriate behavior by the defendant.On one occasion, the defendant, while dressed only in boxer shorts, went into the [complainant’s] bedroom, got under the covers with her, and rubbed the [complainant’s] stomach and legs under her shirt and pajama bottoms.After the [complainant] had moved to another house, she would, on occasion, sleep over at her grandmother’s home.During several of these occasions, the defendant got into bed with the [complainant] and rubbed himself against her so that she felt his penis against her back.

"A few years later, the then sixteen year old [complainant] began speaking with a therapist [Milagros Vizueta], and she disclosed the sexual abuse during her first session.At a therapy session attended by her mother and brother, the [complainant] disclosed the sexual abuse by the defendant.Thereafter, on October 28, 2015, the [complainant] reported the defendant’s conduct to the police.The defendant was [subsequently] arrested .. .. "State v. Andres C.,supra, 208 Conn. App. at 828–29, 266 A.3d 888.

On the first day of trial, the complainant testified that, during her therapy sessions with Vizueta, "Vizueta occasionally took notes and would write down things for the [complainant] to ‘work on …. ’ During redirect examination, the prosecutor inquired whether the [complainant] ever had seen her records from the therapy [sessions] with Vizueta.The [complainant] responded: ‘I have my journals.… I don’t have—I don’t know her records, but I have my journals.’²Upon further inquiry, the [complainant] stated: ‘For the journals, [Vizueta] would have me write a lot about either my relationship to [the defendant], with [the defendant], ₃₀₉how the abuse happened.I would reflect a lot on how it made me feel, how I was missing, why I didn’t want to talk.Sometimes in the journal we’d write about—like if I was having family fights, so my journals are the abuse that I lived with him, but also family fights with my siblings and my mom.’The [complainant] also stated that the journals were her ‘words through therapy.’

"On recross-examination, defense counsel inquired [‘prior to coming here, did you read your journals?’]… The [complainant] responded that she had looked at a ‘few pages’ in one of her journals.The following colloquy between the [complainant] and defense counsel then occurred:

" ‘Q.Okay.Were those—and the—the journals that you have, are those your notes that [you] wrote at the time things were happening?

" ‘A.No, it was while I was in therapy.

" ‘Q.Okay.But it was part of the therapy process about what you spoke to the doctor about, what she told you and what happened to you, right?

" ‘A.Yes.

" ‘Q.And it would be much closer in time to the events that we’re talking about; [is that] fair to say?

" ‘A.When I was journaling, closer to the abuse, yes.’

" ‘Q.Would—would those be the best record you have of what happened?…

" ‘A.Yes.

" ‘Q.Okay.And you still have those journals?

" ‘A.Yes.’

"At this point, defense counsel requested an in camera review of the [complainant’s] journals.The prosecutor₃₁₀ objected, arguing that the journals did not constitute medical records but rather were akin to a diary.The [trial] court inquired whether the journals were privileged documents, by statute or common law.The prosecutor then requested time to research the issue.Defense counsel suggested that the court should review the journals for exculpatory material.The court responded that the obligation to review the journals for exculpatory material rested with the prosecutors and that, if there was a claim of privilege, it would conduct an in camera review.Defense counsel responded: T am asking for it as discovery; however, I was trying to be as respectful as I could be to the complainant.’The court then suggested a further discussion of this issue in chambers and mentioned the possibility of recalling the [complainant] as a witness, if necessary.

"The next day … the [trial] court summarized the discussions that had occurred in chambers: T have determined that [the complainant’s] journals should be reviewed by the state to determine, what, if anything in those journals [comprised of 3 notebooks totaling approximately 200 pages] … comprise statements by [the complainant] concerning the incidents in question here, and any exculpatory material.… [U]pon that review [the state] should disclose to defense counsel any such material, specifically, statements made by [the complainant] in her journals concerning the sexual assault allegations here or any exculpatory material, and if there is anything the state is uncertain as to whether it is exculpatory, [the prosecutors] can provide those portions of the journals to me, and I will review them in camera to determine whether they should be disclosed to defense counsel.

"It is my understanding that the state has talked to [the complainant].She has agreed to provide the journals to [the state], they will be provided to the state sometime this afternoon … but apparently the journals are in Spanish so the state needs the assistance of someone on [its] staff to interpret those journals₃₁₁ so that [it] can fulfill [its] obligation[s] as I’ve outlined them.’The prosecutors and defense counsel agreed with the court’s summary, and neither side raised any objection.

"The...