State v. Christiano

• Decision Date: 08 February 1994
• Docket Number: No. 14962,14962
• Citation: 637 A.2d 382,228 Conn. 456
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Charles F. CHRISTIANO, Sr.

Page 382

637 A.2d 382

228 Conn. 456

STATE of Connecticut v.Charles F. CHRISTIANO, Sr.

No. 14962.

Supreme Court of Connecticut.

Argued Sept. 29, 1993.

Decided Feb. 8, 1994.

Lawrence S. Dressler, with whom, on the brief, were W. Paul Flynn and Howard Lawrence, New Haven, for appellant(defendant).

John A. East III, DeputyAsst. State's Atty., with whom, on the brief, were John A. Connelly, State's Atty., and Cara F. Eschuk, Asst. State's Atty., for appellee(state).

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and KATZ, JJ.

BORDEN, Associate Justice.

The defendant, Charles Christiano, Sr., was convicted after a jury trial of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70.¹He appealed from the judgment of conviction to the Appellate Court, which affirmed the judgment of conviction.State v. Christiano, 29 Conn.App. 642, 617 A.2d 470(1992).We granted the defendant's petition for certification to appeal limited to four issues involving the admissibility of expert testimony and of evidence of the victim's prior sexual conduct.²We affirm the judgment of the Appellate Court.

The defendant was charged with two counts of sexual assault in the first degree: one count for forcible fellatio; and the other for forcible vaginal intercourse.Both of these assaults were alleged to have occurred between September 30, 1986, and May 31, 1989.At the beginning of this period, the victim was eighteen years and eleven months old.

The jury could have reasonably found the following facts.The victim, who is mildly retarded, was placed in the defendant's home as a foster child when she was eight years old.She continued to reside there until she was twenty-one when, in June, 1989, she went to the Wolcott police and made a statement accusing the defendant, her foster father, of having sexually abused her during the previous four years.

These assaults occurred approximately twice per week during the four year period from September, 1985, until May, 1989.There was a similar pattern to the assaults.Each occurred in the family home when the defendant and the victim were the only ones at home, and each involved both forcible fellatio and forcible vaginal intercourse.

The two specific incidents that were the basis of the conviction occurred approximately thirty days apart in March and April, 1989.These assaults began when the defendant pulled the victim into his bedroom.Once there, the defendant prevented the victim from escaping by means of his superior size and strength, and forced her to perform fellatio and to engage in vaginal intercourse.The defendant threatened to eject the victim from the family home if she disclosed the assaults to anyone.The victim was twenty-one years old when these incidents occurred.

I

We first address the certified question of the admissibility of certain expert testimony introduced by the state.The defendant claims that the Appellate Court incorrectly determined ³ that his right to confrontation under the sixth amendment of the United States constitution, as applied to the states through the due process clause of the fourteenth amendment, ⁴ was not violated when the trial court admitted expert testimony on child sexual abuse accommodation syndrome (CSAAS).He argues that the expert testimony at trial specifically identified the victim as suffering from CSAAS.This testimony, the defendant asserts, improperly: (1) enhanced the credibility of the victim; (2) identified the defendant as fitting a particular criminal profile; and (3) evidenced crimes with which the defendant had not been charged.We disagree.

The following facts are relevant to this claim.During the defendant's cross-examination of the victim, he sought to impeach her credibility by questioning her prolonged delay in bringing charges against him.In response to this impeachment, the state offered the testimony of Sidney Horowitz, a clinical psychologist who specializes in treating sexually abused children and adolescents.The state asked Horowitz hypothetical questions concerning delays by victims in disclosing sexual abuse.Horowitz testified that victims of sexual abuse are often reluctant to disclose such abuse to authorities.Horowitz also answered several questions about delay in disclosure by hypothetical victims in situations similar to that of the victim.These questions made no specific reference to the victim.Horowitz also indicated that he had not examined the victim, and was not testifying as to the specifics of her case.Horowitz testified to the effects upon the disclosure of sexual abuse of such factors as the age and mental capacity of typical victims, as well as the effects of the existence of a parental or quasi-parental relationship between perpetrators and victims of abuse.

Although the defendant claims that Horowitz' testimony concerning the delay by sexual abuse victims in reporting abuse was based on CSAAS, the defendant did not object to Horowitz' testimony on those grounds at trial.Further, Horowitz did not claim that his testimony was based on CSAAS; indeed, he never specifically mentioned CSAAS during his testimony.The Appellate Court noted that the only reference to CSAAS by Horowitz was "an oblique remark by Horowitz to research by David Finkelhor, an expert in that area."State v. Christiano, supra, 652, 617 A.2d 470.

A defendant's right to confront witnesses is not absolute and is subject to reasonable limitation.SeeState v. Thompson, 191 Conn. 146, 148, 463 A.2d 611(1983).The admissibility of opinion testimony of expert witnesses is a matter within the discretion of the trial court.State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387(1986)."Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues."(Internal quotation marks omitted.)State v. Borrelli, 227 Conn. 153, 165, 629 A.2d 1105(1993);State v. Spigarolo, 210 Conn. 359, 376, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S.Ct. 322, 107 L.Ed.2d 312(1989).

Horowitz' testimony was offered to rehabilitate the victim's credibility, which had been impeached by cross-examination regarding her delay in disclosing the conduct of the defendant.On the basis of Horowitz' testimony, the jury could reasonably have found that the victim's delay in disclosure was consistent with the rest of her testimony of sexual abuse.Horowitz' testimony enabled the jury to find that, if the victim had been subjected to sexual abuse, such a finding was not necessarily inconsistent with the delay by the victim in complaining of that abuse.⁵

Reviewing this claim in its entirety, the Appellate Court concluded that Horowitz had not testified about CSAAS.⁶It concluded further that the trial court could reasonably have found that Horowitz possessed special knowledge concerning delay in disclosure by sexual abuse victims in family settings, that this special knowledge was not generally known by the average person, and that it was relevant and material to the performance of the jury's function of gauging the credibility of the victim.

In an analogous context, we held that expert testimony concerning battered woman's syndrome is admissible to explain deviations between a victim's statement to the police and a subsequent recantation of that statement by the victim.State v. Borrelli, supra, 227 Conn. at 172-74, 629 A.2d 1105.The Appellate Court concluded that it was within the discretion of the trial court to admit Horowitz' testimony.State v. Borrelli, supra, supports that conclusion, and our review of the record indicates no reason to disturb it.

II

We next consider the three certified questions concerning the admissibility of evidence of prior sexual conduct of the victim.The defendant claims that the Appellate Court incorrectly concluded that certain evidence of the victim's prior sexual conduct was inadmissible at trial.He argues that this conclusion was incorrect because evidence of sexual conduct was: (1) admissible pursuant to General Statutes § 54-86f(1)⁷ in order to show that the defendant was not the source of the psychological disease from which the victim was suffering; (2) so relevant and material that its exclusion violated his right to confrontation under the sixth amendment as applied to the states though the due process clause of the fourteenth amendment of the United States constitution and was therefore admissible under § 54-86f(4); and (3) admissible pursuant to § 54-86f(4) in order to rebut the testimony of Horowitz because it would have shown other possible causes of the delay by the victim in reporting the abuse.We disagree with the defendant.Each of these issues will be treated seriatim.

A

We first address the issue of the admissibility of evidence of certain prior sexual conduct of the victim under the "source of ... disease" exception of § 54-86f, commonly known as the "rape shield"statute.See footnote 7.The defendant argues that the victim was suffering from CSAAS, and that CSAAS is a "disease" within the meaning of subdivision (1) of the rape shield statute.He argues that the exclusion of this evidence was reversible error.We disagree.

The defendant failed to object to the exclusion of the evidence of prior sexual conduct of the victim on these grounds.Appellate review of evidentiary rulings is ordinarily limited to the specific legal issue raised by the objection of trial counsel.SeeState v. Rothenberg, 195 Conn. 253, 263, 487 A.2d 545(1985).The purpose of requiring trial counsel to object properly is not merely formal: it serves to alert the trial court to purported error while there is time to correct it without ordering a retrial.Id.By failing to object on these grounds, the defendant has failed to preserve this...