State v. David N.J.*, 18686.

• Decision Date: 07 June 2011
• Docket Number: No. 18686.,18686.
• Citation: 301 Conn. 122,19 A.3d 646
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticutv.DAVID N.J.*

301 Conn. 122

19 A.3d 646

STATE of Connecticut

v.DAVID N.J.*

No. 18686.

Supreme Court of Connecticut.

Argued Feb. 14, 2011.Decided June 7, 2011.

James B. Streeto, assistant public defender, for the appellant (defendant).Melissa L. Streeto, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Edward R. Narus, senior assistant state's attorney, for the appellee (state).ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN, EVELEIGH and VERTEFEUILLE, Js.NORCOTT, J.

A jury found that the defendant, David N.J., sexually abused his stepgranddaughter over a two year period, and returned a verdict finding him guilty of three counts of sexual assault in the first degree in violation of General Statutes § 53a–70 (a)(2),¹ and one count of risk of injury to a child in violation of General Statutes (Rev. to 2005) § 53–21.² The defendant appeals ³ from the judgment of conviction, rendered in accordance with the jury's verdict, and claims that the trial court improperly: (1) restricted his cross-examination of the physician who examined the victim in this case after she reported the sexual assaults; (2) failed to disclose all relevant material following an in camera review of confidential department of children and families (department) records; (3) ordered remedies adversely affecting the defendant for an apparent violation of a sequestration order by his attorney's investigator, despite the fact that the sequestration order only applied to the state's witnesses; and (4) provided a supplemental jury instruction that expanded the crimes charged in the information by defining the term “vaginal intercourse” in accordance with our interpretation of General Statutes § 53a–65 (2) ⁴ in State v. Albert, 252 Conn. 795, 750 A.2d 1037 (2000). We disagree and, accordingly, affirm the judgment of the trial court.

The record reveals the following relevant background facts, which the jury reasonably could have found, and procedural history. The victim, who is the stepgranddaughter of the defendant, was born in August, 1997. From August, 2003, through December, 2005, the victim resided in an apartment in Hartford with her father V,⁵ her older brother VJ, and three younger siblings. During that time period, the defendant was a frequent visitor to the victim's home, and he moved into the apartment during the middle of 2005 after his wife entered a nursing home.

Thereafter, the defendant had frequent opportunities to be alone with the victim because V often asked the defendant, who temporarily had been out of work due to a fractured arm, to watch the children while V was at work or school. If V was away from home or was at home sleeping, the defendant would often take the victim into his bedroom and engage her in acts of vaginal intercourse, both penile and digital, and fellatio; he gave the victim money after she engaged in these acts.⁶ At some point during that two year period, the victim confided in VJ, who was also her best friend, that the defendant had been touching her inappropriately. Thereafter, whenever the defendant took the victim into the bedroom, if VJ was around, he would go to the door and either listen briefly or attempt to peek at what was happening through a small gap at the bottom of the door to the hallway. At one point, VJ was able to see the victim lying naked atop a set of pillows on the floor in the bedroom; the victim subsequently caught VJ at the door when she saw his socks outside the room through the gap and asked him to stop eavesdropping.⁷ Neither the victim nor VJ told V of the ongoing abuse because they were afraid that no one would believe them. The victim also feared that V would injure the defendant and then ultimately be sent to prison.

On Christmas Eve in 2005, the defendant made the victim perform fellatio on him before she and her family left to visit her aunt's house. At that time, the family was preparing to move because their apartment was not in good condition, and the defendant was also about to find his own place to live. When they returned home that night, the defendant was not present, and VJ convinced the victim to tell an adult about the abuse. The victim first told R, an older cousin, who instructed her to tell V of the abuse.

The victim told V about the abuse later that day, and V brought the victim to the Connecticut Children's Medical Center. After medical personnel there alerted the department and the Hartford police about the victim's allegations, the victim was referred to the Aetna Foundation Children's Center at Saint Francis Hospital and Medical Center, where she underwent a diagnostic interview by Lisa Murphy–Cipolla, a clinical social worker, and an examination by Frederick Berrien, a physician.⁸ The investigation continued when Phillip J. Clark, a Hartford police detective, subsequently reviewed a video recording of Murphy–Cipolla's interview of the victim, and then conducted an interview of the defendant.⁹

Subsequently, the state charged the defendant with five counts of sexual assault in the first degree in violation of § 53a–70 (a)(2), and one count of risk of injury to a child in violation of § 53–21. The defendant's theory of the case during the subsequent jury trial was that the victim was a habitual liar who, acting in concert with VJ, had fabricated the charges against the defendant to force him to move out because she: (1) was angry that he had taken her bedroom after he moved in; and (2) resented his attempts to discipline her. The jury, however, returned a verdict finding the defendant guilty on counts one, two and five of the information alleging, respectively, sexual assault in the first degree by digital-vaginal penetration, penile-vaginal penetration, and fellatio, and count six alleging risk of injury to a child; the jury found him not guilty on counts three and four of the information alleging sexual assault in the first degree by penile-anal penetration and cunnilingus. After denying the defendant's motions for a new trial and for a postverdict judgment of acquittal, the trial court rendered a judgment of conviction in accordance with the jury's verdict and sentenced the defendant to a total effective sentence of twenty-nine years imprisonment with ten years of special parole. This appeal followed.

On appeal, the defendant claims that the trial court improperly: (1) restricted his cross-examination of the physician who had examined the victim; (2) failed to disclose all relevant material from the victim's confidential department records following an in camera review; (3) imposed remedies for an apparent violation of the sequestration order by his attorney's investigator, despite the fact that the sequestration order in effect did not apply to defense witnesses; and (4) enlarged the offenses charged in the information while responding to a jury request for a supplemental instruction about the definition of “penetration.” Additional relevant facts and procedural history will be set forth as necessary in the context of each claim.

I

We begin with the defendant's claim that the trial court improperly restricted his cross-examination of Berrien, the physician who had examined the victim after she reported the assaults, on the ground that the victim's testimony did not provide a sufficient foundation for his questions regarding whether injury would be more likely to result from the repeated insertions and extractions of an adult male penis into the vagina of a prepubescent child. The defendant also cites Livingstone v. New Haven, 125 Conn. 123, 3 A.2d 836 (1939), and notes that the commentary to § 7–4(c) of the Connecticut Code of Evidence ¹⁰ supports his argument

[19 A.3d 653 , 301 Conn. 130]

that, as a hypothetical question to an expert witness, § 7–4(c) should have been applied with increased liberality because the question was intended to impeach the accuracy of Berrien's direct examination testimony. Finally, the defendant argues that the trial court's evidentiary ruling violated his right to confrontation under the sixth amendment to the United States constitution because it would have yielded evidence relevant to the central issue in the case, namely, whether the victim's allegations were fabricated, given that her lack of injury was inconsistent with her allegations of repeated and painful sexual assaults.

In response, the state, relying on Floyd v. Fruit Industries, Inc., 144 Conn. 659, 136 A.2d 918 (1957), contends that the trial court did not abuse its discretion in precluding the defendant from asking this hypothetical question because it was not supported by the evidence. The state posits that there was no evidence of acts of repeated vaginal penetration during any one single instance of abuse, either through the victim's testimony or Murphy–Cipolla's testimony concerning the victim's interview, and that the defendant did not avail himself of the opportunity to cross-examine the victim further on that point. Noting that the defendant essentially concedes that he had the opportunity to conduct a comprehensive cross-examination of Berrien, the state emphasizes that the trial court did not abridge the defendant's confrontation rights because he had ample opportunity to elicit from Berrien testimony that repeated and deeper sexual penetration by an adult male would increase the odds of injury to a young girl. We agree with the state and conclude that the trial court's evidentiary ruling was neither an abuse of discretion nor a violation of the defendant's confrontation rights.

The record reveals the following additional relevant facts and procedural history. During cross-examination, Berrien testified that, when he took the victim's medical history, she did not report experiencing symptoms that would be suggestive of sexual abuse, including changes in sleep, eating, bowel or bladder habits, or complaints of headaches or abdominal pain. Berrien then testified that, in sexual assault c...