State v. Darby

• Decision Date: 26 July 1989
• Docket Number: No. 6787,6787
• Citation: 563 A.2d 710,19 Conn.App. 445
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Thomas DARBY.

Page 710

563 A.2d 710

19 Conn.App. 445

STATE of Connecticut v. Thomas DARBY.

No. 6787.

Appellate Court of Connecticut.

Argued April 4, 1989.

Decided June 7, 1989.

Decision Released July 26, 1989.

John R. Williams, New Haven, for the appellant (defendant).

Carolyn K. Longstreth, Deputy Asst. State's Atty., with whom were Patrick Clifford, Asst. State's Atty., and, on the brief, Michael Dearington, State's Atty., for the appellee (state).

Before SPALLONE, DALY and JACOBSON, JJ.

SPALLONE, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of five counts of risk of injury to a child, General Statutes § 53-21, ¹ and of one count of sexual assault in the second degree, General Statutes § 53a-71(a)(1). ² The question presented for our determination is whether the trial court's ruling permitting the victims, all of whom were then under the age of twelve, to testify by way of videotapes made in the absence of the defendant and the jury violated the defendant's state and federal constitutional rights to confront his accusers and to due process of law.

Prior to trial, the state moved, pursuant to General Statutes § 54-86g, ³ to present the testimony of all of the young victims by means of a videotape. The state represented that all of the victims were twelve years of age or younger and that the charges against the defendant involved sexual abuse, and proposed that only the judge, the prosecutor, one defense counsel and any person who would contribute to the welfare of the child be present during the testimony. Further, the motion proposed that the proceedings be videotaped from an adjoining room through a one-way mirror while the defendant was situated in a separate monitoring room, where he would be able to see and hear the testimony and to communicate with defense counsel electronically.

At a hearing held on the state's motion, the only person to testify was John Leventhal, a pediatrician, who at the time of the hearing had been associated with the department of pediatrics at Yale-New Haven Hospital for eight years and had served as the director of its child abuse committee for four to five years. ⁴

Following the hearing, the trial court granted the state's motion ⁵ and ordered that all of the victims' testimony be presented to the jury via videotape. The case proceeded to trial, and the victims' testimony was presented to the jury solely by way of videotapes.

After the jury returned its verdicts in this case, but before sentencing, our Supreme Court handed down its decision in State v. Jarzbek, 204 Conn. 683, 529 A.2d 1245 (1987), cert. denied, --- U.S. ----, 108 S.Ct. 1017, 98 L.Ed.2d 982 (1988). In Jarzbek, our Supreme Court held that, in criminal prosecutions involving the alleged sexual abuse of children of tender years, videotaping the testimony of a minor victim outside the physical presence of the defendant may, under certain circumstances, be a constitutionally permissible practice that is not violative of the defendant's rights under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. Id., at 707, 529 A.2d 1245. The court held that, when faced with a request by the state to present the testimony of a minor victim by way of videotape, the trial court must hold an evidentiary hearing to assist it in balancing the individual defendant's right of confrontation against the interest of the state in obtaining reliable testimony from the particular minor victim. Id. The state has the burden of demonstrating, by clear and convincing evidence, a compelling need for excluding the defendant from the witness room during the videotaping of a minor victim's testimony. In order to satisfy its burden of proving compelling need, the state must show that "the minor victim would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that the trustworthiness of the victim's testimony would be seriously called into question." Id., at 704-705, 529 A.2d 1245. Although the trial court may consider the well-being of the witness as a significant factor in its analysis, the state cannot prove need simply by demonstrating that the victim would suffer some harm if forced to testify in the presence of the accused. The primary focus of the trial court's inquiry must be on the reliability of the minor victim's testimony, not on the injury that the victim may suffer by testifying in the presence of the accused. Id., at 705, 529 A.2d 1245.

Following the release of the opinion in Jarzbek, the defendant filed a motion for mistrial and a motion for a new trial or in arrest of judgment. The defendant claimed that the evidence produced at the hearing on the state's pretrial motion to videotape the testimony of the minor victims did not establish, by clear and convincing evidence, a compelling need to present the minor victims' testimony by way of a videotape made in the defendant's absence. At the sentencing of the defendant, the trial court denied the defendant's motions for a mistrial and for a new trial or in arrest of judgment, ruling that the evidence presented met the test of Jarzbek. ⁶ Thereafter, the defendant filed this appeal. Subsequently, in response to the state's motion for articulation, the trial court stated: "(1) In ruling after trial that the standard set forth in State v. Jarzbek, [supra] was satisfied, the trial court specifically considered only the testimony presented in connection with the pretrial motion to videotape. Although the court was aware of all the evidence presented during the trial pertaining to that issue, the court was not requested to consider, and did not specifically consider, that evidence. With the exception of oral argument by counsel for the defendant concerning trial evidence, the posttrial hearing and ruling were directed to the pretrial hearing evidence. (2) The court did conclude as to the victims ... that the defendant's presence during the testimony would have so inhibited each victim that the reliability of his testimony would have been seriously undermined. All the facts and inferences relied on for that determination were recited by the court in ruling on the pretrial motion. The basis for the decision on the pretrial motion to videotape was stated fully by the court at that time."

In essence, the claim of error advanced by the defendant is a question of the sufficiency of the evidence to support the trial court's conclusion that the standards enunciated in Jarzbek were satisfied with regard to the videotaped testimony of each victim. Such a determination is a question of fact to be made by the trial court. State v. Jarzbek, supra, at 704, 529 A.2d 1245. In this case, the trial court expressly articulated its finding that the defendant's presence during the testimony would have so inhibited each victim that the reliability of his testimony would have been seriously undermined. At the sentencing proceeding, the court indicated it was satisfied that "there was a compelling need for videotaping in this case."

Because the trial court made the findings mandated by Jarzbek, our review is limited to determining whether there is any evidence to support those findings. We adopt the position of our Supreme Court in Jarzbek, wherein the court stated: "We express no opinion as to whether the evidence presently on the record is sufficient to satisfy the state's burden of proving, by clear and convincing evidence, a compelling need to videotape the testimony of the minor victim outside the physical presence of the defendant. It is not the role of this court to make such a factual determination. It is in the sole province of the trier of fact to evaluate expert testimony, to assess its credibility, and to assign it a proper weight. Johnson v. Fuller, 190 Conn. 552, 556, 461 A.2d 988 (1983); State v. Gordon, 185 Conn. 402, 409, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982); State v. Perez, 182 Conn. 603, 610, 438 A.2d 1149 (1981). In the present circumstances, the trial court must determine what of the expert testimony it should reject or accept. Gorra Realty, Inc. v. Jetmore, 200 Conn. 151, 161, 510 A.2d 440 (1986)." State v. Jarzbek, supra, at 706-707, 529 A.2d 1245. We will not retry the issue of whether there was a compelling need to videotape the victims' testimony outside the presence of the defendant in order to assure its reliability. On appeal, the function of this court is limited to determining whether the decision of the trial court is clearly erroneous. Practice Book § 4061; State v. Spigarolo, 210 Conn. 359, 374-75, 556 A.2d 112 (1989). It is the province of the trial court to pass upon the credibility of the witnesses and the weight to be accorded the evidence. See State v. Baldwin, 7 Conn.App. 477, 480, 509 A.2d 76 (1986), cert. denied, 200 Conn. 808, 512 A.2d 231 (1986). In the evaluation of preliminary determinations of the trial court in a criminal case, the evidence will be construed in a way most favorable to sustaining the determination. State v. Spigarolo, supra, at 375, 556 A.2d 112.

Our review of the transcript of Leventhal's testimony reveals that, although there are general references to the effect that young victims of sexual assault are emotionally traumatized by having to testify in a courtroom setting in the presence of the accused abuser, Leventhal also testified that such a setting would have a negative effect on each individual victim's ability to testify in a trustworthy manner. Leventhal testified that he had personally interviewed two of the children and reviewed the hospital charts of the others. He stated his opinion that all of the victims would be "much more likely" to give a more complete and accurate account of what had happened to them if they were to testify outside the presence of the accused and the jury, in a room other than a courtroom. We cannot say...