State v. DePastino, 14695

• Decision Date: 22 February 1994
• Docket Number: No. 14695,14695
• Citation: 228 Conn. 552,638 A.2d 578
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Keith DePASTINO.

Page 578

638 A.2d 578

228 Conn. 552

STATE of Connecticut v. Keith DePASTINO.

No. 14695.

Supreme Court of Connecticut.

Argued Nov. 2, 1993.

Decided Feb. 22, 1994.

Suzanne Zitser, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellant (defendant).

Leon F. Dalbec, Jr., Asst. State's Atty., with whom, on the brief, were John M. Bailey, Chief State's Atty., and John M. Massameno, Sr. Asst. State's Atty., for appellee (state).

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

SANTANIELLO, Associate Justice.

The defendant, Keith DePastino, was convicted by a jury of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70(a), ¹ two counts of sexual assault in the second degree in violation of General Statutes § 53a-71(a)(1) ² and one count of risk of injury to a child in violation of General Statutes § 53-21. ³ He was sentenced by the trial court to a total effective term of imprisonment of forty years, execution of which was suspended after thirty years with five years probation. The defendant appealed from the judgment of conviction to the Appellate Court pursuant to General Statutes § 54-95(a), ⁴ and we transferred the case to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). ⁵

On appeal, the defendant claims that the trial court improperly: (1) denied his motion for a new trial based upon the loss of stenographic notes that precluded him from having a complete trial transcript; (2) denied his motion for a new trial based upon a violation of his right to a speedy appeal; (3) admitted evidence of the defendant's alleged threats to the victims' mother and grandmother as evidence of consciousness of guilt; (4) permitted a constancy of accusation witness to testify before the victim had testified; (5) admitted certain constancy of accusation evidence; (6) admitted the victim's videotaped interview as constancy of accusation evidence; (7) denied his motion for a judgment of acquittal for the offense of sexual assault in the first degree of the younger victim; (8) violated his right against double jeopardy by allowing his convictions for sexual assault in the first and second degree of each victim to stand; and (9) instructed the jury that a reasonable doubt is a doubt for which a valid reason can be assigned. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 1985, the defendant resided in an apartment with his girlfriend, her three year old daughter and their eighteen month old daughter. On November 1, 1985, while alone in the apartment with the children, the defendant sexually assaulted the older child. Subsequently, the older child watched the defendant sexually assault the younger child in her crib and make that child cry. Eight days later the defendant struck the older child, bruising her cheek.

When the children's maternal grandmother learned of the physical abuse, she took the older child to live with her. A few days later, the grandmother noticed a vaginal rash on the older child and brought her to a counseling center. During the second visit to the center, through the use of anatomically correct dolls, the child told the director what had happened. The director brought the older child and her grandmother to a pediatrician whose practice included the diagnosis and treatment of child victims of sexual abuse. The doctor also examined the younger child. The doctor concluded that both children had been sexually abused. An examination of both children by a second physician confirmed the diagnosis.

I

The defendant first claims that the trial court improperly denied his motion for a new trial. His motion was based on the fact that certain stenographic notes of his trial were lost thus preventing him from having a complete trial transcript for appeal. The defendant contends that the unavailability of a complete trial transcript has deprived him of his constitutional right to meaningful appellate review. ⁶ We disagree.

The absence of the court reporter's notes for the testimony of one of the defendant's witnesses was discovered while the transcript of his trial was being prepared. The trial court conducted a hearing to investigate the extent of the notes that were missing and the effect on the defendant's appeal. At this hearing the court learned that the court reporter had recorded testimony of the witness in question during the trial. When the court examined a copy of the available transcript that had been prepared during the trial, however, it discovered that the transcript was incomplete. ⁷ Although the transcript included the witness' entire trial testimony, the text of any objections or discussions that had occurred during the testimony had been omitted and replaced with the word "objection" or "discussion."

The transcript of the witness' testimony is approximately 200 pages in length and contains five objections raised by the state during direct examination, thirteen objections raised by the defendant during cross-examination, and one objection raised by the state during redirect examination. The word "discussion" appears twenty times during cross-examination. The entire trial transcript is approximately 1800 pages in length.

In its memorandum of decision on the defendant's motion for a new trial, the trial court stated that it had conducted a line by line review of the witness' testimony and found the transcript "sufficiently complete" to enable the defendant to pursue his appeal. The court noted that although the transcript does not indicate what transpired during the "discussions," the defendant's trial attorney could recollect nothing unusual happening, and had not made any notations of unusual occurrences. The court also noted that the subject of the objections, and the court's rulings thereon, could be determined with a high degree of probability from a careful reading of the transcript and, therefore, that the transcript was sufficient for an appellate court to "determine if errors were made." Finally, the court noted that the primary purpose of the witness' testimony was to impeach testimony that had been introduced to show constancy of accusation. The available transcript indicated that the witness had been sufficiently allowed to testify for such purpose.

"The absence of a portion of the trial transcript does not mandate a new trial." State v. Williams, 227 Conn. 101, 105, 629 A.2d 402 (1993). The state is not required to furnish to the defendant a verbatim transcript of the underlying trial. Id. The state must ensure only that the record is adequate for effective appellate review of any claims of error raised by the defendant. Id., at 106, 629 A.2d 402. A new trial is required only if the record, as reconstructed, is inadequate for this purpose. Id., at 105, 629 A.2d 402.

"The sufficiency of a transcript to enable the appellate courts to review the issues on appeal is a matter of fact, because the trial court is in the best position to determine whether the reconstructed record adequately reflects what occurred at the trial. An appellate court should affirm a trial court's finding that the reconstructed record was sufficient unless the appellate court finds that the trial court's determination was 'clearly erroneous.' " Id., at 106, 629 A.2d 402.

In most cases concerning reconstructed transcripts, the missing portion of the transcript consists primarily of the testimony of witnesses. See, e.g., id., at 104-105, 629 A.2d 402 (proceedings of one afternoon of trial missing); Commonwealth v. Harris, 376 Mass. 74, 78-79, 379 N.E.2d 1073 (1978) (entire transcript missing); People v. King, 160 A.D.2d 531, 532, 554 N.Y.S.2d 517, appeal denied, 76 N.Y.2d 847, 559 N.E.2d 1291, 560 N.Y.S.2d 132 (1990) (state's entire case missing). In the present case, however, the testimony given by the witness had been recorded. Only the text of objections and discussions were omitted.

Before a defendant can establish that he is entitled to a new trial on the basis of an incomplete trial record, he must identify a specific claim of error that the appellate court will be unable to review effectively using the reconstructed record. State v. Williams, supra, 227 Conn. at 109, 629 A.2d 402. The defendant disputes the trial court's conclusion that the witness had been called mainly to impeach the constancy of accusation testimony of the state's witness. He asserts that the witness' testimony was offered to dispute the victim's testimony as well as the testimony of the state's expert witness. The defendant has not, however, identified a claim of error that cannot be reviewed on the basis of the reconstructed record, nor has he shown that he has been prejudiced in advancing any identified claims of error.

Finally, the defendant claims that, because he is represented on appeal by different counsel, he is unfairly prejudiced by the absence of the portions of the transcript. The defendant's counsel on appeal, however, has been in communication with his trial counsel, and has had the benefit of the trial counsel's recollections of what transpired at trial. The trial counsel has no recollection of any unusual rulings by the trial court, and had made no notes of possible errors to be raised on appeal. Although she was not the trial counsel, the appellate counsel has not been unduly prejudiced by the reconstructed transcript.

We conclude that the trial court's ruling that the reconstructed record was adequate for effective appellate review was not clearly erroneous.

II

The defendant next claims that the trial court improperly denied his request for a new trial based upon an alleged violation of his right to a speedy appeal. We disagree.

In May, 1989, after the defendant had filed his appeal and ordered a copy of the trial transcript, he learned that the court reporter who had transcribed the defendant's trial was no longer...