State v. Corbin

• Decision Date: 09 July 2002
• Citation: 799 A.2d 1056,260 Conn. 730
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. PATRICK CORBIN

260 Conn. 730

799 A.2d 1056

STATE OF CONNECTICUT v. PATRICK CORBIN

(SC 16517), (SC 16518).

Supreme Court of Connecticut.

Argued January 18, 2002.

Officially released July 9, 2002.

Sullivan, C. J., and Norcott, Katz, Vertefeuille and Zarella, Js. Christopher T. Godialis, assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Joan K. Alexander, former supervisory assistant state's attorney, for the appellant in Docket No. SC 16517, appellee in Docket No. SC 16518 (state).

James B. Streeto, deputy assistant public defender, for the appellee in Docket No. SC 16517, appellant in Docket No. SC 16518 (defendant).

Opinion

SULLIVAN, C. J.

The defendant, Patrick Corbin, was convicted, after a jury trial, on four counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2),¹ one count of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2)² and one count of risk of injury to a child in violation of General Statutes (Rev. to 1995) § 53-21.³ The defendant appealed from the judgment of conviction to the Appellate Court, claiming that the trial court improperly had: (1) denied his motion to suppress a confession he had made to the police; (2) failed to instruct the jury as requested by the defendant regarding its role in evaluating the credibility of his confession; (3) admitted into evidence for substantive purposes a prior inconsistent statement made by a witness; (4) refused to disclose all of the psychiatric records of a witness and all of the notes of an investigating police officer; (5) denied the defendant's motion for a judgment of acquittal on the charge of kidnapping in the first degree because of insufficiency of the evidence; and (6) rejected his request to instruct the jury on unlawful restraint in the first degree and unlawful restraint in the second degree as lesser included offenses of kidnapping in the first degree. The Appellate Court affirmed in part and reversed in part the judgment of the trial court. State v. Corbin, 61 Conn. App. 496, 499, 765 A.2d 14 (2001).

We granted the defendant's petition for certification to appeal, limited to the following issues: "1. Did the Appellate Court properly reject the defendant's claim that the trial court improperly failed to give his requested instruction regarding the reliability of his confession?" and "2. Did the Appellate Court properly conclude that, with respect to the charge of kidnapping in the first degree, the defendant was not entitled to an instruction on the lesser included offenses of unlawful restraint in the first and second degree?" State v. Corbin, 256 Conn. 911, 772 A.2d 1125 (2001). We also granted the state's petition for certification to appeal, limited to the issue of whether the Appellate Court properly concluded that the victim's statement regarding fellatio during the sexual assault was not admissible under State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 97 L. Ed. 2d 598 (1986); State v. Corbin, 256 Conn. 910, 722 A.2d 1124 (2001); and the state appealed from the judgment of the Appellate Court reversing the judgment of the trial court as to the conviction on one count of sexual assault in the first degree. See State v. Corbin, supra, 61 Conn. App. 522. We affirm in part and reverse in part the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following relevant facts. "On the evening of July 28, 1995, the six year old victim was fishing with two other children at a pond. The defendant, who was at the pond, saw the children and approached them. He offered to show the children a better fishing spot that was in a wooded area. The defendant led all of the children along a dirt trail into the wooded area. The victim continued to follow the defendant but, along the way, the other two children stopped because they noticed that the defendant was drinking beer and may have been intoxicated.

"Upon reaching an isolated part of the wooded area, the defendant sexually assaulted the victim. He placed his hand over her mouth and threatened that if she screamed, he would kill her. Thereafter, the defendant removed the victim's clothes and placed them in some bushes. He then vaginally penetrated the victim and also performed cunnilingus on her. During the assault, the victim pleaded with the defendant to stop hurting her, but he failed to comply. The entire attack lasted approximately forty-five minutes.

"Subsequently, two witnesses saw the defendant running out of the wooded area. Once out of that area, he went to his vehicle and drove off. Meanwhile, the victim went home and reported the incident to her mother, who immediately took her to a hospital. A police officer came to the hospital and took the victim's statement.

"The next day, Detective Edward Spyros went to the defendant's apartment and asked the defendant to accompany him to the police station. The defendant agreed to do so and at the police station confessed to assaulting the victim. Although audio and video recording equipment was available at the police station, Spyros failed to utilize such equipment to capture the defendant's confession and, instead, simply reduced it to writing. The state then charged the defendant with the aforementioned crimes. At trial, the defendant requested that the court provide the jury with an instruction regarding the reliability of his confession, but his request was denied. The jury later found the defendant guilty on all counts." Id., 499-500. These appeals followed.

I

We first address the state's claim that the Appellate Court improperly concluded that the trial court improperly had permitted the state to introduce into evidence the victim's prior inconsistent written statement for substantive purposes. We agree with the state and reverse the decision of the Appellate Court as to this issue.

The following additional facts are relevant to our resolution of this claim. "After being sexually assaulted on July 28, 1995, the child victim went to a hospital emergency room with her mother. A police officer arrived at the hospital to interview the [victim] and conducted the interview [of the victim] in the presence of [her] mother. The [victim] recounted to the police officer what had happened regarding the sexual assault, and the police officer reduced her statement to writing.. . . Because the mother told the police officer that the victim could not read [or write], the police officer read the statement back to the [victim]. The police officer then had the mother sign the statement on behalf of the [victim]." Id., 511. The substance of the statement at issue was as follows: "`I forgot to tell you that before he put his pee pee inside me, he made me suck his weiner . . . .'" Id. "The defendant was later charged with and convicted of four counts of the crime of sexual assault in the first degree in violation of § 53a-70 (a) (2). As to count three, the defendant was convicted of violating the statute by forcing the [victim] to perform fellatio on him. When called to testify at trial, the [victim] testified about facts relating to counts one, two and four, but did not recall performing fellatio on the defendant." Id. The trial court, over objection by the defendant, admitted into evidence for substantive purposes the portion of the victim's statement regarding fellatio. Id.

On appeal to the Appellate Court, the defendant argued that because the victim's July 28, 1995 written statement to the police was unsworn and had been signed only by the victim's mother, the trial court should have not allowed the statement to be introduced for substantive purposes under State v. Whelan, supra, 200 Conn. 753. The state contended, to the contrary, that the victim's signature was not required under the circumstances of this case because the mother's signature was an adequate substitute in light of the fact that the six year old victim was unable to read or write and that the statement was admissible under the rule of State v. Whelan, supra, 753.⁴ The Appellate Court concluded that, "under the circumstances of this case, the signing by the mother of the [victim's] statement on behalf of the [victim] fail[ed] to satisfy Whelan. The [trial] court, therefore, improperly admitted the [victim's] statement for substantive purposes concerning the third count of sexual assault in the first degree." State v. Corbin, supra, 61 Conn. App. 513.

Before turning to the merits of this claim, we address our standard of review. "The admissibility of evidence, including the admissibility of a prior inconsistent statement pursuant to Whelan, is a matter within the . . . discretion of the trial court. See State v. Alvarez, 216 Conn. 301, 314, 579 A.2d 515 (1990) . . . ." State v. Newsome, 238 Conn. 588, 596, 682 A.2d 972 (1996). "[T]he trial court's decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done. . . . On review by this court, therefore, every reasonable presumption should be given in favor of the trial court's ruling." (Internal quotation marks omitted.) State v. George B., 258 Conn. 779, 791, 785 A.2d 573 (2001).

In State v. Whelan, supra, 200 Conn. 751-54, we abandoned the traditional view that a prior inconsistent statement of a nonparty witness is inadmissible hearsay if offered to prove the truth of the matters asserted therein and, therefore, is admissible only for impeachment purposes. In Whelan, we "recognized that a prior written inconsistent statement can be admitted for substantive purposes if the following conditions have been met: (1) the statement is signed by the declarant; (2) the declarant has personal knowledge of the facts stated; and (3) the declarant testifies at trial and is available for cross-examination." State v. Alvarez, supra, 216 Conn. 313; State v. Whelan, supra, 753; see also Conn. Code Evid. §...