State v. Favoccia

• Citation: 306 Conn. 770,51 A.3d 1002
• Decision Date: 21 September 2012
• Docket Number: No. 18559.,18559.
• Court: Supreme Court of Connecticut
• Parties: STATE of Connecticut v. Anthony L. FAVOCCIA, Jr.

306 Conn. 770
51 A.3d 1002

STATE of Connecticut
v.
Anthony L. FAVOCCIA, Jr.

No. 18559.

Supreme Court of Connecticut.

Argued Dec. 1, 2011.
Decided Sept. 21, 2012.^*

[51 A.3d 1004]

Adam E. Mattei, special deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Cornelius P. Kelly, senior assistant state's attorney, for the appellant (state).

Gary A. Mastronardi, Bridgeport, for the appellee (defendant).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN, EVELEIGH and HARPER, Js.^**

NORCOTT, J.

[306 Conn. 772]In this certified appeal, we consider whether an expert witness' testimony that the complainant has exhibited behaviors, which were identified as those characteristic of minor sexual assault victims, constitutes inadmissible vouching for the credibility of the complainant or opinion as to the ultimate issue of whether the complainant had been sexually assaulted, in violation of, for example, State v. Spigarolo, 210 Conn. 359, 379–80, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989), and State v. Iban C., 275 Conn. 624, 635–36, 881 A.2d 1005 (2005). The state appeals, upon our grant

[51 A.3d 1005]

of its petition for certification, ¹ from the judgment of the Appellate Court reversing the trial court's judgment, rendered after a jury trial, convicting the defendant, Anthony L. Favoccia, Jr., of two counts of risk of injury to a child in violation of General Statutes § 53–21(a)(2).²State v. Favoccia, 119 Conn.App. 1, 30, 986 A.2d 1081 (2010). On appeal, the state claims that the Appellate Court improperly concluded that: (1) the trial court had abused its discretion in admitting into evidence four statements by an expert witness, each to the effect that the complainant exhibited behaviors consistent with those of sexual abuse victims; and (2) reversal was required because these improper evidentiary rulings were not harmless error. We conclude that the four [306 Conn. 773]statements at issue were improperly admitted into evidence, and that we do not have a fair assurance that those improprieties did not substantially sway the jury's verdict. Accordingly, we affirm the judgment of the Appellate Court.

The Appellate Court's opinion aptly sets forth the following facts that the jury reasonably could have found based on the allegations of the complainant and the procedural history: “The events underlying the defendant's conviction occurred in the fall of 2005 and the summer of 2006. At that time [the complainant] was under sixteen years of age.³ Following the divorce of her parents when she was three years old, the [complainant] resided with her mother, S. The [complainant] regularly spent weekends with her father, R, pursuant to a court approved visitation schedule.

“The defendant was a longtime friend of R, whom the [complainant] had known since early childhood as ‘Uncle Tony.’ During one of her weekend visits with R in the fall of 2005, the defendant spent the night at R's residence. R worked an overnight shift as a 911 operator that evening.” Id. at 3, 986 A.2d 1081. The jury then credited the complainant's testimony that, “[a]fter R departed the residence and his girlfriend, M, had gone to bed, the defendant entered the [complainant's] bedroom and lay next to her. The defendant kissed her neck and touched her back, stomach, upper legs and buttocks. The encounter ended abruptly after approximately fifteen minutes, and the defendant told the [complainant] that he would ‘[s]ee [her] tomorrow....’ The [complainant] thereafter did not report that incident to her parents. She did, however, inform two classmates and close friends, J and B, of her encounter with the defendant. [306 Conn. 774]Although the [complainant] instructed J and B to keep the matter secret, they encouraged the victim to report the incident to her mother.

“A second incident involving the defendant and the [complainant] occurred in the summer of 2006, during another weekend visit at R's residence. On that particular evening, the defendant was present when

[51 A.3d 1006]

R, a volunteer firefighter, left the residence to respond to a fire. At that time, the [complainant] took a shower and then retreated to her bedroom robed in a towel. After she closed the door, the defendant suddenly entered the room. As the [complainant] testified, ‘he [got] on top of me and started kissing me on my neck ... well, first it was on the lips and then my neck.... [H]e was on top of me, my towel had started to come off ... I guess because of being on top of me, and it was not a relatively big towel, and he was ... touching on my sides and everything and then ... after maybe five, ten minutes, I told him that I needed to get dressed and that he needed to leave, so he had to get off of me.’ The defendant complied with her request. The [complainant] did not report the incident to her parents but did inform J and B of the encounter, who again encouraged the [complainant] to report the incident to her mother. The [complainant] falsely assured her friends that she had done so.

“One year later, S finally learned of the incidents involving her daughter and the defendant. On that evening in late June or early July, 2007, S overheard the [complainant], J and B talking about a recent incident in which the defendant attempted to ‘[look] down [the complainant's] shirt....’ J then recounted to S the details of the [complainant's] two encounters with the defendant in the fall of 2005 and summer of 2006, and the [complainant] began to cry. Shocked, S took the [complainant], J and B to the Stratford police department to report the incidents.

[306 Conn. 775]“The defendant thereafter was arrested and charged, by amended information dated May 29, 2008, with one count of sexual assault in the second degree in violation of General Statutes (Rev. to 2005) § 53a–71 (a)(1), ⁴ one count of sexual assault in the fourth degree in violation of General Statutes (Rev. to 2005) § 53a–73a (a)(1),⁵ and two counts of risk of injury to a child in violation of § 53–21(a)(2). A jury trial followed. The state's case included testimony from the [complainant], J and B, and two exhibits. In addition, the state presented the expert testimony of [school] psychologist Lisa Melillo. The defense consisted of testimony from R, M and E, the [complainant's] high school color guard coach, as well as four exhibits. Following the close of evidence, the defendant moved for a judgment of acquittal. The court granted that motion as to the sexual assault in the fourth degree count only, concluding that the state had not proven beyond a reasonable doubt that the victim was under the age of fifteen at the time of the alleged incidents. The matter was submitted to the jury, which found the defendant guilty on both counts of risk of injury to a child. The jury further informed the court that it was ‘deadlocked on the issue of sexual assault in the second degree’ and saw ‘no possibility of unanimity on this issue.’ ⁶ The court thus declared

[51 A.3d 1007]

a mistrial on that count. The court rendered judgment [306 Conn. 776]accordingly and sentenced the defendant to a total effective term of twenty years incarceration, execution suspended after ten years, with twenty-five years of probation.” ⁷Id. at 3–5, 986 A.2d 1081.

The defendant appealed from the judgment of conviction to the Appellate Court, contending that the trial court “abused its discretion in permitting the state to offer certain expert testimony that vouched for and bolstered the credibility of the [complainant]” on four occasions while Melillo testified. Id. at 5–6, 986 A.2d 1081. Relying on, inter alia, State v. Iban C., supra, 275 Conn. 624, 881 A.2d 1005,State v. Freeney, 228 Conn. 582, 637 A.2d 1088 (1994), and State v. Spigarolo, supra, 210 Conn. 359, 556 A.2d 112, the Appellate Court agreed with the defendant,⁸ concluding specifically that portions of four challenged colloquies between the prosecutor and Melillo, which discussed only the “general behavioral characteristic[s] of sexually abused children”; State v. Favoccia, supra, 119 Conn.App. at 20, 986 A.2d 1081; were permissible and properly “served to assist the jury in evaluating the [complainant's] conduct and whether it was generally consistent with that of a sexually abused child.” Id. at 21, 986 A.2d 1081. The Appellate Court, however, then concluded that, when “Melillo went beyond a general discussion of characteristics of sexual abuse victims and offered opinions, based on her review of the videotaped forensic interview [of the complainant] and other documentation, as to whether this particular [complainant] in fact exhibited the specified behaviors, her testimony crossed the line of permissible expert opinion.” Id. at 23, 986 A.2d 1081. The court noted specifically: “Melillo opined on whether the [complainant], as mechanisms[306 Conn. 777]of coping with sexual abuse, attempted to make herself unattractive to the defendant and remained polite and respectful toward him. During her testimony at trial and in her forensic interview that was before the jury, the [complainant] made such allegations. As a result, Melillo's expert opinion confirming those allegations ‘necessarily endorsed the [complainant's] credibility, and functioned as an opinion as to whether the [complainant's] claims were truthful.’ ... Given Melillo's extensive qualifications and expertise as a forensic interviewer, the jury easily could perceive her testimony ‘as a conclusive opinion that [the complainant] had testified truthfully.’ ” (Citation omitted.) Id. at 23–24, 986 A.2d 1081;see State v. Iban C., supra, at 636, 881 A.2d 1005;State v. Grenier, 257 Conn. 797, 806, 778 A.2d 159 (2001).

Relying on our analysis in State v. Grenier, supra, 257 Conn. at 807–808, 778 A.2d 159, which, like this case, depended entirely on the jury's assessment of the complainant's credibility because of a lack of physical, medical or eyewitness evidence, the Appellate...