State v. FRANCIS D.

• Decision Date: 11 February 2003
• Docket Number: (AC 21599).
• Citation: 815 A.2d 191,75 Conn. App. 1
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. FRANCIS D.

75 Conn. App. 1

815 A.2d 191

STATE OF CONNECTICUT v. FRANCIS D.¹

(AC 21599).

Appellate Court of Connecticut.

Argued September 19, 2002.

Officially released February 11, 2003.

Foti, Schaller and Peters, Js. Mary Anne Royle, special public defender, for the appellant (defendant).

Robin S. Schwartz, special deputy assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Cornelius P. Kelly, senior assistant state's attorney, for the appellee (state).

Opinion

SCHALLER, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21 (2).² On appeal, the defendant claims that the trial court improperly (1) permitted a constancy of accusation witness to provide expert testimony, (2) admitted into evidence the victim's written statement that she had given to the police and (3) refused to allow the defendant to make requested offers of proof during cross-examination of two witnesses. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On Saturday, July 17, 1999, the victim, who was then twelve years old, was visiting with her grandparents at their home. During the evening hours, the victim and her cousin, who also was visiting, began watching television in the bedroom of the defendant, who is the victim's uncle. At that time, the defendant was thirty-nine years of age and lived in the victim's grandparents' home. Sometime thereafter, the victim's cousin left the bedroom and went downstairs. Between the hours of 10 and 11 p.m., the defendant entered his bedroom and discovered the victim lying in his bed and watching television. The defendant lay down beside the victim and fell asleep The victim continued watching television, falling asleep sometime thereafter.

Between the hours of 11 p.m. and 1 a.m., the victim awoke to find the defendant touching her breasts. As the defendant was doing that, he moved closer to the victim and began digitally penetrating her vagina. The victim unsuccessfully attempted to push the defendant away. When the defendant eventually stopped, the victim moved away from him, remained in bed and fell back to sleep.

When the victim awoke the next morning, she felt the defendant fondling and digitally penetrating her vagina. The victim pushed the defendant away and ran from the bedroom. The victim did not immediately report either incident to her mother or to the grandparents on Sunday, July 18, 1999. The victim reported the incidents to her mother on Monday, July 19, 1999. Following the victim's disclosure, the mother took the victim to a hospital for an examination. At the hospital, the victim was met by Detective Thaddeus Walewski, Officer Donald Schuler and a social worker at the hospital's emergency department. A physical examination of the victim revealed that she had suffered a superficial bruise on one breast. There was, however, no sign of vaginal trauma. Tests performed as part of a sex crimes kit protocol were inconclusive for sexual assault.

Two days after first reporting the incident, the victim signed a written statement for the police in which she recounted the attacks of Saturday night, July 17, and Sunday morning, July 18, 1999. On September 16, 1999, the state filed a five count substitute information charging the defendant with two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a)(2), one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a(a)(1)(A) and two counts of risk of injury to a child in violation of § 53-21 (2).

The defendant was tried before a jury. On November 13, 2000, the jury found the defendant guilty on both counts of risk of injury to a child and acquitted him of the sexual assault counts. On December 15, 2000, the court imposed a total effective sentence of ten years incarceration, execution suspended after six years, and ten years of probation. The defendant now appeals. Additional facts will be set forth where necessary to the resolution of the appeal.

I

We first consider the defendant's claim that the court improperly permitted a constancy of accusation witness to provide expert testimony. Specifically, the defendant argues that (1) because the social worker was offered solely as a constancy of accusation witness, and was not recognized or qualified as an expert witness, her testimony regarding the theory of delayed disclosure was inadmissible under the constancy of accusation doctrine, and (2) even if the social worker was qualified properly as an expert witness, her testimony was improper because it invaded the fact-finding province of the jury.

We first set forth our standard of review. "[W]hether evidence is admissible under the constancy of accusation doctrine is an evidentiary question that will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. . . . An appellate court will make every reasonable presumption in favor of upholding the trial court's evidentiary rulings." (Citation omitted; internal quotation marks omitted.) State v. Pereira, 72 Conn. App. 107, 121, 806 A.2d 51 (2002), cert. denied, 262 Conn. 931, 815 A.2d 135 (2003).

The following additional facts are necessary to the proper resolution of the defendant's claim. In the defendant's November 10, 1999 motion for disclosure and examination, he requested the "[i]dentification of any and all experts whom the State intend[ed] to call as witnesses at trial, including name, business, address, and subject area of the expert's proposed testimony." (Emphasis added.) On November 2, 2000, the state filed its disclosure response, enclosing a copy of the victim's medical records and informing the defendant that results of the rape test kit were forthcoming. The state also provided its witness list. Within that list, the state disclosed the social worker as a witness, but did not specifically identify her, or any other person, as an expert witness.³ The list provided the social worker's name, professional title and designation, and place of employment.

During its case-in-chief, the state called the social worker to testify regarding her involvement in this case. During direct examination, the prosecutor asked a series of questions concerning the social worker's education, experience, her role as a social worker at the hospital and her encounter with the victim. We may summarize the social worker's testimony in that regard as follows. The social worker testified that she had a bachelor's degree in psychology and a master's degree in social work. She discussed her employment as a social worker in a nursing home and at two hospitals, and discussed her experience working with sexually abused children, which consisted of ten to fifteen cases. After the social worker had answered those questions, the prosecutor inquired about the theory of delayed disclosure.⁴ Despite defense counsel's objections, the court permitted the social worker to testify about delayed disclosure.

A

The defendant argues that because the social worker was offered solely to prove constancy of accusation, her testimony regarding the theory of delayed disclosure was inadmissible. Because the defendant did not preserve his claim for appellate review, we decline to afford it review.

The standard for the preservation of a claim alleging an improper evidentiary ruling at trial is well settled. "This court is not bound to consider claims of law not made at the trial. . . . In order to preserve an evidentiary ruling for review, trial counsel must object properly. . . . Our rules of practice make it clear that when an objection to evidence is made, a succinct statement of the grounds forming the basis for the objection must be made in such form as counsel desires it to be preserved and included in the record. . . . In objecting to evidence, counsel must properly articulate the basis of the objection so as to apprise the trial court of the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling.. . . Once counsel states the authority and ground of his objection, any appeal will be limited to the ground asserted. . . .

"These requirements are not simply formalities. They serve to alert the trial court to potential error while there is still time for the court to act. . . . Assigning error to a court's evidentiary rulings on the basis of objections never raised at trial unfairly subjects the court and the opposing party to trial by ambush." (Citations omitted; internal quotation marks omitted.) State v. Bush, 249 Conn. 423, 427-28, 735 A.2d 778 (1999).

Where, however, there is a question as to whether the claim was preserved, as long as it is clear from the record that "the trial court effectively was alerted to a claim of potential error while there was still time for the court to act"; Pestey v. Cushman, 259 Conn. 345, 367, 788 A.2d 496 (2002); the claim will be considered preserved. Id., 366-67 (where defense counsel attempted to object to introduction of evidence, but failed to use word "objection," Supreme Court held claim preserved because transcript revealed trial court understood grounds on which counsel objected).

At trial, the defense counsel objected to the testimony of the social worker concerning her understanding of the theory of delayed disclosure. Objecting, defense counsel stated that "[t]here has been an inadequate foundation as an attempt to take the fact-finding matter out of the hands of the jury. . . . With the use of a witness to draw a conclusion based upon the facts or hypothetical, whereas the jury is in the best position to decide." When the state queried the social worker as to the whether a delayed response is a recognized type of behavior in sexually abused...