State v. Favoccia

• Decision Date: 21 September 2012
• Docket Number: SC 18559
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. ANTHONY L. FAVOCCIA, JR.

STATE OF CONNECTICUT v. ANTHONY L. FAVOCCIA, JR.

SC 18559

Supreme Court of Connecticut

Argued December 1, 2011

Officially released September 21, 2012^**

The "officially released" date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the "officially released" date appearing in the opinion. In no event will any such motions be accepted before the "officially released" date.

All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative.

The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.Rogers, C. J., and Norcott, Palmer, Zarella, McLachlan, Eveleigh and

Harper, Js.^*

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, for the appellee (defendant).

Opinion

NORCOTT, J. 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 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).² State 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 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., 3. 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 fifteenminutes, 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. 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 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.

"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, aswell 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 a mistrial on that count. The court rendered judgment 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."⁷ Id., 3-5.

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., 5-6. Relying on, inter alia, State v. Iban C., supra, 275 Conn. 624, State v. Freeney, 228 Conn. 582, 637 A.2d 1088 (1994), and State v. Spigarolo, supra, 210 Conn. 359, 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. 20; 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., 21. 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., 23. The court noted specifically: "Melillo opined on whether the [complainant], as mechanisms of...