State v. Cecil J.
| Decision Date | 23 January 2007 |
| Docket Number | No. 26510.,26510. |
| Citation | 99 Conn.App. 274,913 A.2d 505 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. CECIL J.<SMALL><SUP>1</SUP></SMALL> |
Darcy McGraw, special public defender, for the appellant (defendant).
Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Eva B. Lenczewski, senior assistant state's attorney, for the appellee (state).
BISHOP, DiPENTIMA and PETERS, Js.
In this criminal appeal, the principal issue is whether the exclusion of evidence of prior sexual conduct pursuant to the rape shield statute, General Statutes § 54-86f, violated the defendant's constitutional right to confrontation and to present a defense against charges of sexual assault. See State v. Rolon, 257 Conn. 156, 777 A.2d 604 (2001). The defendant challenges two evidentiary rulings of the trial court and the court's denial of a requested continuance. We affirm the judgment of the trial court.
In a three count amended information, the state charged the defendant, Cecil J., with sexual assault in the first degree in violation of General Statutes § 53a70(a)(1),2 sexual assault in the first degree in violation of General Statutes § 53a-70(a)(2)3 and risk of injury to a child in violation of General Statutes (Rev to 1997) § 53a-21(2).4 After accepting the verdict of the jury finding the defendant guilty on all three counts, the court sentenced him to seventeen years of incarceration and five years of special parole.5
In the defendant's appeal from this adverse judgment, he raises three claims. He maintains that the court (1) improperly granted the prosecution's motion in limine to restrict testimony relating to the victim's sexual activity with two of his siblings, (2) misapplied the medical treatment hearsay exception to admit into evidence a written statement by the victim incriminating the defendant and (3) abused its discretion in denying a request for a continuance to enable defense counsel to interview a witness before his testimony on the witness stand. We are not persuaded.
The jury reasonably could have found the following facts. The defendant had been a member of the male victim's household, and had been in a relationship with the victim's mother, from the time the victim was two years old. The household also included the victim's mother, brother and two half-brothers. On an unspecified, snowy vacation day during the 1998-1999 school year, the nine year old victim was at home playing video games with his two younger half-brothers, M and A. The defendant asked the victim to step out of the living room with him and to go into the bathroom. Although the victim initially resisted going there, when he was threatened with a beating, he did as he was told.
After closing the bathroom door, the defendant ordered the victim to pull down his pants and to lean over the bath top. Once the defendant had pulled his own pants down, he held the victim in place and anally penetrated him. Hearing the apartment door open, the defendant warned the victim not to say anything. The victim's mother overheard this warning and saw the victim and defendant pulling up their pants. Although she inquired about what was going on, the victim responded that nothing had happened.
After an altercation between the defendant and the victim's mother, the defendant left. Examining the victim's rectal area, the mother found it to be red and swollen. The mother called the family's pediatrician to express her concern that the victim might have been sexually abused. Although she was advised to take the victim to a hospital, she did not do so because the pediatrician would not confirm, over the telephone, that the victim had been sexually assaulted.
After this incident, the victim slept more often on the couch in the living room. Some nights, he would wake up to see the defendant running away. He would then become aware of the fact that his pants were down and sometimes would experience pain in his face or his anus.
At some time subsequent to these incidents, the victim was sent away from his home to live at the Stetson School in Massachusetts.6 During one of the victim's therapy sessions at the school, the victim's mother asked him what he thought about the defendant. The victim answered that the defendant was a sexual predator. Asked by his therapist to clarify what he meant by that, he declined to do so orally but wrote his answer down. He explained that he was still too nervous about what had happened to be able to talk about the events out loud.
The defendant's principal claim is that, by excluding evidence of sexual misconduct between the victim and his siblings, the trial court violated the defendant's rights to confront witnesses and to present a defense under the sixth amendment to the United States constitution. The defendant maintains that he should have been able to present evidence that the victim was sexually abused by an older brother and in turn had sexually abused one of his younger brothers. According to the defendant, the victim blamed the defendant for bringing this misconduct to light, thereby causing the department of children and families to send the victim to the Stetson School. Relying on the rape shield statute, § 54-86f, the trial court excluded proffered evidence relating to the victim's alleged sexual interactions with his brothers. We conclude that the trial court's exclusion of this evidence did not violate the defendant's sixth amendment rights because such evidence was properly excluded as irrelevant.
We first set forth the standard of review for determining whether the court properly excluded this evidence. (Citations omitted; internal quotation marks omitted.) State v. Rolon, supra, 257 Conn. at 173, 777 A.2d 604.
We begin our analysis by examining the language of § 54-86f.7 Subject to certain exceptions, the rape shield statute prohibits evidence of the victim's sexual conduct from being admitted into evidence. Despite the defendant's claim that three of those exceptions are applicable, the only exception at issue in this case is subdivision (4) of the statute.8 Subdivision (4) permits evidence to be introduced if that evidence is "otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant's constitutional rights...." General Statutes § 54-86f(4). Unless the defendant makes a showing that the evidence sought to be admitted falls under one of the exceptions, evidence of the victim's sexual conduct is excluded under § 54-86f.
A defendant who seeks to introduce evidence under one of the exceptions of § 54-86f must first make an offer of proof. General Statutes § 54-86f (). Although a defendant may be entitled to an evidentiary hearing during which he may demonstrate that the evidence would be admissible under one of the exceptions to § 54-86f, such a hearing is required only if the trial court first determines that the evidence is relevant. State v. Manini, 38 Conn.App 100, 114-15, 659 A.2d 196, cert. denied, 234 Conn. 920, 661 A.2d 99 (1995); see also State v. Barrett, 43 Conn.App. 667, 674, 685 A.2d 677, cert. denied, 240 Conn. 923, 692 A.2d 819 (1997).
(Citations omitted; internal quotation marks omitted.) State v. DeJesus, 270 Conn. 826, 837-38, 856 A.2d 345 (2004).
The defendant in this case sought to introduce evidence of the victim's sexual history through the testimony of a therapist at the Stetson School and of the defendant himself. The trial court determined that the evidence was irrelevant and did not, therefore, conduct an evidentiary hearing on the proffered evidence. In reviewing this decision by the trial court, we examine the relevancy of both the proffered evidence relating to the victim's alleged abuse by his older brother and the proffered evidence of the abuse allegedly perpetrated by the victim on his younger brother.
We first review whether the trial court properly excluded, on the ground that it was irrelevant, the proffered evidence relating to the victim's alleged abuse by his older brother, F. The only fact asserted by the defendant in this offer of proof was that F had abused the victim some time between 1998 and 1999. Declining to provide any further details about a specific date, time or place of this alleged incident, the defendant asserted only that the abuse by the victim's older brother "did, in fact, happen."
Evidence admitted under subdivision (4) of § 54-86f must be both material and relevant in order to be so critical that its exclusion could lead to a violation of the defendant's constitutional rights. State v. DeJesus, supra, 270 Conn. at 844 n. 18, 856 A.2d 345. The possibility that a child victim's sexual knowledge resulted...
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