State v. Delgado

• Decision Date: 17 September 2002
• Docket Number: (SC 16588).
• Citation: 805 A.2d 705,261 Conn. 708
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. ELIGIO DELGADO

261 Conn. 708

805 A.2d 705

STATE OF CONNECTICUT v. ELIGIO DELGADO

(SC 16588).

Supreme Court of Connecticut.

Argued April 17, 2004.

Officially released September 17, 2002.

Borden, Katz, Palmer, Vertefeuille and Zarella, Js.

William B. Westcott, for the appellant (defendant).

Richard F. Jacobson, special assistant state's attorney, with whom was Cornelius P. Kelly, senior assistant state's attorney, for the appellee (state).

Opinion

ZARELLA, J.

A jury found the defendant, Eligio Delgado, guilty of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2)¹ and risk of injury to a child in violation of General Statutes § 53-21 (a) (2).² The trial court rendered judgment in accordance with the jury verdict,³ and the defendant appealed to the Appellate Court. On appeal to the Appellate Court, the defendant claimed that the trial court improperly had denied: (1) defense counsel's request for a thirty day continuance or a mistrial; and (2) defense counsel's request for permission to access records of the victim's counseling sessions. State v. Delgado, 64 Conn. App. 312, 313, 780 A.2d 180 (2001). The Appellate Court affirmed the judgment of the trial court. Id., 320. Thereafter, we granted the defendant's petition for certification to appeal, limited to the issues of whether the Appellate Court properly concluded that: (1) the trial court did not abuse its discretion in denying defense counsel's request for a continuance or mistrial; and (2) the defendant was not deprived of his federal constitutional right to confrontation when the trial court denied defense counsel's request for permission to access records of the victim's counseling sessions. State v. Delgado, 258 Conn. 913, 914, 782 A.2d 1248 (2001). We affirm the judgment of the Appellate Court.

The jury reasonably could have found the following facts. The defendant was the step-grandfather of the eight year old victim.⁴ The defendant repeatedly sexually assaulted the victim between August, 1997, and January, 1998, when he was engaged in a construction project in the basement of the victim's family home. Some time after the assaults had begun, the victim experienced vaginal discharge, which prompted the victim's mother to seek medical treatment for the victim. The victim's vaginal discharge persisted, however, and, in February, 1998, the victim's mother took the victim to be examined by Pedro Malave, a pediatrician. Malave performed a vaginal culture on the victim that revealed the presence of a bacterial organism known as gardnerella vaginalis. The presence of that particular organism in children typically is associated with sexual abuse. Following the visit to Malave, the victim disclosed to her mother that the defendant had sexually assaulted her. Additional facts will be set forth as necessary.

I

The defendant first claims that the Appellate Court improperly concluded that the trial court did not abuse its discretion in denying defense counsel's request for a continuance or a mistrial⁵ following the state's disclosure of certain information at trial. We disagree.

It is well settled that "[t]he determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion." State v. Aillon, 202 Conn. 385, 394, 521 A.2d 555 (1987). "A reviewing court is bound by the principle that [e]very reasonable presumption in favor of the proper exercise of the trial court's discretion will be made." (Internal quotation marks omitted.) State v. Hamilton, 228 Conn. 234, 240, 636 A.2d 760 (1994). "Our role as an appellate court is not to substitute our judgment for that of a trial court that has chosen one of many reasonable alternatives." Id., 250. Therefore, on appeal, "we . . . must determine whether the trial court's decision denying the request for a continuance was arbitrary or unreasonabl[e]." (Internal quotation marks omitted.) State v. Brown, 242 Conn. 445, 452, 700 A.2d 1089 (1997).

The following additional facts and procedural history are relevant to the disposition of the defendant's claim. At what appeared to be the conclusion of the state's direct examination of the victim's mother, the state requested that the jury and the victim's mother be excused so that it could provide certain information to the court and the defendant. The state then informed the court and the defendant of the existence of a medical report prepared by Malave that contained statements from the victim's mother indicating that, in 1994, the victim had experienced dreams involving violence and sex. Upon learning of this new information, defense counsel indicated that he was at a "distinct disadvantage" and that he was unsure how to proceed properly regarding cross-examination. Defense counsel then informally requested "some kind of a postponement or a mistrial . . . ." Defense counsel did not question the propriety of the state's actions but declared that he had not had an opportunity to prepare for cross-examination on this matter and that, to prepare properly, he needed time to consult with an expert. The trial court did not act on this informal request but, rather, informed the defendant and the state that it would allow cross-examination of the victim's mother on the issue of the victim's dreams.

Thereafter, the trial court advised defense counsel that it was unclear what he was seeking through his request for a continuance. Defense counsel responded, "I'm not sure I am—other than to protect my client's interest . . . ." The trial court then stated that any information relevant to the issue of the victim's dreams could be obtained through examination of the witnesses in view of the fact that the sources of the information, namely, the victim's mother and Malave, both were available to testify. The court further indicated that defense counsel had not articulated clearly why a continuance was warranted under the circumstances. The court then stated that it would afford defense counsel an opportunity to voir dire Malave. Finally, the trial court informed the state and defense counsel that, following their examination of Malave, they could resume their questioning of the victim's mother on the matter of the victim's dreams, at which time the court would have "an intelligent appraisal of the situation."

The state then called Malave to testify outside the presence of the jury. In response to questions from the court, Malave testified that the victim's mother had informed him that the victim had experienced dreams involving violence and sex well before the allegations of sexual abuse that gave rise to the charges in the present case. Malave indicated that these types of dreams could have been associated with sexual abuse and, therefore, that he had recommended counseling if the dreams continued. Malave further testified that he received no additional complaints from the victim or the victim's mother regarding the victim's dreams.

After a short recess following Malave's testimony, the state informed the court and the defendant of additional information it had been given by the victim's mother regarding the victim's dreams. The state revealed that the victim's mother had taken the victim for counseling in 1994 and that, during a counseling session, the victim had stated that she was having dreams involving a man named Larry who was going to kill her family and have sex with her. Following this disclosure, the court reminded the defendant and the state that it would allow broad cross-examination on the issue of the victim's dreams. Defense counsel then made his only formal request for a thirty day continuance, which the court denied. Thereafter, defense counsel did not renew his request for a continuance.⁶ On appeal to the Appellate Court, that court rejected the defendant's claim that the trial court had abused its discretion in denying defense counsel's request for a continuance, reasoning that defense counsel had sought a lengthy delay, that the trial court had offered several alternatives to a continuance and that defense counsel had failed to articulate actual prejudice. State v. Delgado, supra, 64 Conn. App. 317. We agree with the Appellate Court.

"There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied." (Internal quotation marks omitted.) State v. Hamilton, supra, 228 Conn. 240. We have identified several factors that a trial court may consider when exercising its discretion in granting or denying a motion for continuance. See generally id. These factors include "the likely length of the delay . . . the impact of delay on the litigants, witnesses, opposing counsel and the court . . . the perceived legitimacy of the reasons proffered in support of the request . . . [and] the likelihood that the denial would substantially impair the defendant's ability to defend himself . . . ." Id.

Applying these factors to the present case, we conclude that the Appellate Court properly concluded that the trial court did not abuse its discretion in denying defense counsel's request for a continuance. First, the reasons that defense counsel proffered in support of his request for a continuance were speculative. We have held that a trial court does not act arbitrarily or unreasonably when it denies a motion for a continuance that is supported by mere speculation. See State v. Aillon, supra, 202 Conn. 395-96.

Upon learning of the new information regarding the victim's dreams, defense counsel indicated that he needed "some kind of a postponement or a mistrial. . . ." Defense counsel contended that he was unsure how to proceed on cross-examination and that he had not been given an opportunity to consult with an expert. In response, the trial court...