State v. Arroyo, 17804.

• Decision Date: 11 December 2007
• Docket Number: No. 17804.,17804.
• Citation: 935 A.2d 975,284 Conn. 597
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Miguel ARROYO.

935 A.2d 975

284 Conn. 597

STATE of Connecticut v.Miguel ARROYO.

No. 17804.

Supreme Court of Connecticut.

Argued March 12, 2007.

Decided December 11, 2007.

Giovanna Shay, New Haven, with whom were Efren Olivares and Brett Dignam, law student interns, and, on the brief, Allegra McLeod and Jason Smith, law student interns, for the appellant (defendant).

John A. East III, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and

Michael Pepper, senior assistant state's attorney, for the appellee(state).

BORDEN, NORCOTT, PALMER, VERTEFEUILLE and ZARELLA, Js.^*

BORDEN, J.

The defendant, Miguel Arroyo, appeals¹ from the judgment of conviction, rendered after a jury trial, of two counts each of the crimes of sexual assault in the first degree in violation of General Statutes § 53a-70 (a)(2), sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a)(1)(A), and risk of injury to a child in violation of General Statutes § 53-21(2), and with one count each of the crimes of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a)(2)and53a-70 (a)(2), attempt to commit sexual assault in the fourth degree in violation of §§ 53a-49 (a)(2)and53a-73a (a)(1)(a), and attempt to commit risk of injury to a child in violation of §§ 53a-49 (a)(2)and53-21(2).The defendant claims that the trial court improperly: (1) precluded the admission of certain third party culpability evidence proffered by the defendant and denied the defendant's request for a third party culpability charge; (2) admitted statements of a forensic interviewer under the medical diagnosis or treatment exception to the hearsay rule; (3) admitted the testimony of the victim's teacher under the constancy of accusation doctrine; (4) admitted the victim's videotaped testimony, as well as the testimony of certain witnesses recounting the victim's out-of-court statements in violation of Crawford v. Washington,541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177(2004);(5) failed to inquire adequately into the defendant's complaints of lack of communication with his attorney; and (6) failed to inform the defendant of his right to consular notification under the Vienna Convention on Consular Relations.²Because we agree with the defendant that the court improperly declined to give the requested third party culpability charge, we reverse the judgment of conviction and remand the case to the trial court for a new trial.³

The jury reasonably could have found the following facts.The victim's parents, who are originally from Cuba, met the defendant, also a native of Cuba, at Guantanamo Naval Base before emigrating to the United States.Eventually, the parents asked the defendant to be the godfather to their two children, the victim and her younger brother.During the relevant time period, between late November, 2001, and May 23, 2002, the defendant occasionally slept at the home of the victim, who was five years old at the time of these events.Also during that time period, the victim's father, who had been living out of state, returned to live with the family as of December 10, 2001.Upon his return, he and the victim's mother resumed having unprotected sex.

Sometime toward the end of November, 2001, the victim complained to her mother about irritation in her vaginal area.When her mother examined the victim, she observed that the area was discolored.Thinking that the irritation was caused by the liquid soap she had been using, the mother disposed of the soap.When the irritation persisted, the mother brought the victim to Yale-New Haven Hospital on December 19, 2001, where the victim was examined and given medication.During the examination, the victim complained that she had been feeling pain during urination for several days.On the basis of the reported symptoms, the victim was tested for a urinary tract infection and treated with Amoxicillin.Shortly thereafter, on December 27, 2001, the victim's mother was admitted to the hospital with a high fever and abdominal pain and was diagnosed with a kidney infection.While in the hospital, the mother was tested and treated presumptively for chlamydia.When the test results came in, they were negative.She was discharged on December 31, 2001, and returned home that day.

On January 15, 2002, the victim's mother once again brought the victim to the hospital because the victim's vaginal area had become swollen and had been secreting discharge, and because the victim continued to experience painful urination, with traces of blood in her urine.Hospital personnel examined her, then administered testing the next day.On January 18, 2002, the hospital informed the victim's mother that the victim had tested positive for chlamydia.At that point, the victim was given a one time dose of Azithromycin.Following treatment, although the victim's symptoms at times were less severe, they persisted until at least May 15, 2002, when the mother brought her back for further testing and treatment.

Between January 18, 2002, and May 23, 2002, when the victim finally identified the defendant as her attacker, the victim was interviewed by various hospital personnel, social workers and her kindergarten teacher.Catherine Hammie, an investigator for the department of children and families (department), conducted the first interview of the victim, which was a home interview that took place sometime in late January.At that time, the victim denied that anyone had touched her "private parts."Nevertheless, on the basis of the victim's positive chlamydia test, Hammie requested that all of the adults living in the household, the mother, the father and the defendant, obtain testing for chlamydia.⁴Hammie returned a number of times for further interviews, and on February 13, 2002, brought the victim to the Yale Sexual Abuse Clinic (clinic) at Yale-New Haven Hospital, where the victim was examined by Janet Murphy, a pediatric nurse practitioner at the hospital.Murphy did not observe any discharge from the victim's vaginal area at that time, but was unable to perform a test for chlamydia because the victim was very fearful of being subjected to the test again.

On March 13, 2002, Hammie brought the victim back to the clinic for an interview with Theresa Montelli, a licensed clinical social worker and forensic interviewer⁵ who worked at the clinic.At the beginning of the interview, the victim told Montelli that she had become infected in her vaginal area from bathing with her brother.She did not at that time claim that the defendant had made any sexual contact with her.During that interview, she stated only that the defendant sometimes played tickle games with her.When Montelli asked the victim to tell her something she did not like about the defendant, however, Montelli observed that the victim's eye contact ceased and her entire aspect changed markedly, from friendly and carefree to very sad.

After the interview with Montelli was finished, Hammie spoke with the victim.During that conversation, the victim told Hammie that the defendant played hide and seek, and tickle games with her.When Hammie asked the victim what it was she did not like about the defendant, the victim did not reply, but became very sad and quiet.Hammie also asked the victim whether she had ever seen the defendant change his clothes in front of her, and the victim replied that she had not.

On the following day, Montelli again interviewed the victim.When Montelli resumed asking questions about the defendant, the victim responded that she did not want to talk about him.Because the victim had mentioned on the prior day that she had a secret, Montelli asked her about it.The victim said that her secret was about "dancing with daddy."When Montelli asked her once again about the defendant, the victim's aspect changed, and she said that she did not want to talk about it anymore and that her mother had told her not to say anything.⁶

On May 15, 2002, because the victim's symptoms of vaginal discharge and irritation had become more severe, the mother brought her to the clinic to see Murphy, who examined the victim and tested her for chlamydia.The results were positive.The victim was treated again with Azithromycin, this time over a course of five days.When she was tested for chlamydia again in June, the results were negative.

On May 23, 2002, the victim's mother brought her to meet with Magdalis Gonzalez, the victim's kindergarten teacher, and asked Gonzalez to speak to the victim in order to find out how she had become infected.Gonzalez agreed to speak to the victim privately.During their meeting, Gonzalez first asked the victim if her father had touched her.The victim responded that he had not, and that it was her godfather, the defendant, who had touched her.After her meeting with the victim, Gonzalez called the department and spoke to Hammie, informing her of the victim's allegations.Hammie then went to the school, invoked an administrative hold on the child, and immediately brought her to the clinic for a third interview with Montelli.

During the interview, the victim described three separate occasions on which the defendant had sexual contact with her.The victim said that all three incidents had occurred in the upstairs of the family home.

During her videotaped testimony, the victim described the three incidents.The first incident occurred during the daytime, in her parents' bedroom, where the defendant slept when he stayed at the house overnight.⁷While the mother was downstairs and the victim's brother was sleeping in his crib in the children's bedroom, the defendant removed his pants, the victim's pants and panties, then penetrated the victim vaginally with his penis.The second occasion occurred in the morning, when the mother was downstairs making chocolate milk for the victim and her brother, who was in his crib.The defendant came...