State v. Freddy T., 100620 CTCA, AC 41755

Docket Nº:AC 41755
Opinion Judge:LAVINE, J.
Party Name:STATE OF CONNECTICUT v. FREDDY T. [*]
Attorney:Virginia M. Paino, certified legal intern, with whom was James B. Streeto, senior assistant public defender, for the appellant (defendant). Melissa E. Patterson, assistant state's attorney, with whom, on the brief, were Josephy T. Corradino, state's attorney, John C. Smriga, former state's attorn...
Judge Panel:DiPentima, C. J., and Lavine and Bright, Js
Case Date:October 06, 2020
Court:Appellate Court of Connecticut
 
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STATE OF CONNECTICUT

v.

FREDDY T. [*]

No. AC 41755

Court of Appeals of Connecticut

October 6, 2020

Argued May 11, 2020.

Procedural History

Substitute information charging the defendant with one count of the crime of sexual assault in the first degree and two counts of the crime of risk of injury to a child, brought to the Superior Court in the judicial district of Fairfield, geographical area number two, and tried to the jury before Pavia, J.; verdict of guilty of two counts of risk of injury to a child; thereafter, the state entered a nolle prosequi as to the charge of sexual assault in the first degree; subsequently, the court, Pavia, J., rendered judgment in accordance with the verdict, from which the defendant appealed to this court. Reversed; new trial.

Virginia M. Paino, certified legal intern, with whom was James B. Streeto, senior assistant public defender, for the appellant (defendant).

Melissa E. Patterson, assistant state's attorney, with whom, on the brief, were Josephy T. Corradino, state's attorney, John C. Smriga, former state's attorney, and Colleen P. Zingaro, senior assistant state's attorney, for the appellee (state).

Jennifer B. Smith filed a brief for the Connecticut Criminal Defense Lawyers Association as amicus curiae.

DiPentima, C. J., and Lavine and Bright, Js. [**]

OPINION

LAVINE, J.

The defendant, Freddy T., appeals from the judgment of conviction, rendered after a trial to a jury, of two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (1) and (2). On appeal, the defendant claims that (1) the court improperly admitted portions of a recording of a forensic interview of the child under the medical treatment exception to the hearsay rule that were harmful to him, (2) his convictions under both § 53-21 (a) (1) and (2) constitute double jeopardy, and (3) the court abused its discretion by declining to order disclosure of certain of the child's records following its in camera review of them. We agree that the court improperly admitted portions of the forensic interview of the child that constituted harm. We, therefore, reverse the judgment of the trial court.1

The following facts and procedural history are relevant to this appeal. On or about October 10, 2015, the defendant allegedly engaged in sexual acts with his then five year old daughter (child). The defendant allegedly kissed her and touched her vagina and ‘‘butt.'' The child reported the defendant's actions to her grandmother, who called the police on October 19, 2015. The child was taken to Bridgeport Hospital by ambulance, where she was examined by Karen Della-Giustina, a physician in the pediatric emergency department. That night, following Della-Giustina's examination, the child was interviewed by a hospital social worker, Abigail Alvarez-Quiles, who inquired about the child's family situation and mental state. Alvarez-Quiles made a report to the hot line for the Department of Children and Families (department). The responding officer also contacted the department and the Department of Social Services, and referred the grandmother's report to the department's Youth Bureau for further investigation. The child was discharged from the hospital that night. The emergency department report contained a general instruction from Della-Giustina to make an appointment with the child sexual assault team.

On October 23, 2015, the child was taken to the Center for Family Justice (center), which provides forensic interview services in sexual assault cases, where she met with Brenda Concepcion, a licensed clinical social worker and forensic interviewer, who conducted the forensic interview that is at issue in the present case. During the interview, the child identified the defendant as her father and disclosed several instances of his sexual conduct, including vaginal and anal penetration. Following the forensic interview, Concepcion recommended that the child receive mental health and psychiatric therapy services and have a forensic medical examination.2

The defendant was arrested on December 10, 2015. On December 28, 2015, the defendant was charged in a long form information with one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and one count of risk of injury to a child in violation of § 53-21 (a) (2). The state later filed an amended information, adding a second count of risk of injury to a child under § 53-21 (a) (1).

At trial, the following witnesses testified: Officer Laura Azevedo-Rasuk, Della-Giustina, Concepcion, the child, Detective Jessi Pizarro, and Danielle Williams.[3]Concepcion testified both before and after the child testified.

Prior to the trial, the state requested that the court review a video recording of the forensic interview of the child, indicating that it intended to offer portions of it during the trial pursuant to the medical diagnosis and treatment exception to the hearsay rule. The defendant objected on the grounds that the exception did not apply because medical treatment had concluded and that the purpose of the interview was investigative rather than medical. After Concepcion's initial testimony, the court heard argument on the state's motion and ruled that portions of the video recording were admissible. After the child testified, portions of the video of the forensic interview were shown to the jury.

The jury found the defendant guilty of both counts of risk of injury to a child. On the charge of sexual assault in the first degree under § 53a-70 (a) (2), the jury was deadlocked, and the court declared a mistrial. The state then entered a nolle prosequi on the count of sexual assault. The court accepted the jury's verdict and imposed a total effective sentence of eighteen years in prison, execution suspended after twelve years, with twenty years of probation and sexual offender registration upon release.[4] This appeal followed. Additional facts will be set out as necessary.

On appeal, the defendant's dispositive claim is that the trial court abused its discretion by admitting into evidence portions of the forensic interview of the child conducted by Concepcion. We agree.

We begin with the standard of review. ‘‘To the extent [that] a trial court's admission of evidence is based on an interpretation of [our law of evidence], our standard of review is plenary. . . . We review the trial court's decision to admit . . . evidence, if premised on a correct view of the law, however, for an abuse of discretion. . . . The trial court has wide discretion to determine the relevancy of evidence . . . . Thus, [w]e will make every reasonable presumption in favor of upholding the trial court's ruling[s] . . . . In determining whether there has been an abuse of discretion, the ultimate issue is whether the court . . . reasonably [could have] concluded as it did.'' (Internal quotation marks omitted.) Weaver v. McKnight, 313 Conn. 393, 426, 97 A.3d 920 (2014).

‘‘[E]videntiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. . . . In a criminal case, [w]hen an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful . . . .'' (Citations omitted; footnote omitted; internal quotation marks omitted.) State v. Jordan, 329 Conn. 272, 287-88, 186 A.3d 1 (2018). ‘‘[W]hether [an improper ruling]is harmless in a particular case depends upon a number of factors, such as the importance of the witness' testimony in the [defendant's] case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case. . . . Most importantly, we must examine the impact of the . . . evidence on the trier of fact and the result of the trial. . . . [T]he proper standard for determining whether an erroneous evidentiary ruling is harmless should be whether the jury's verdict was substantially swayed by the error. . . . Accordingly, a nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict.'' (Internal quotations marks omitted.) State v. Fernando V., 331 Conn. 201, 215, 202 A.3d 350 (2019).

The following additional facts inform our analysis. Della-Giustina testified that the purpose of her physical examination of the child on October 19, 2015, was ‘‘to evaluate and address any urgent or acute needs such as bleeding or medical conditions that are obvious.'' She conducted a ‘‘head to toe'' examination but only a ‘‘very cursory'' examination of the child's vaginal and rectal area. She could not perform an extensive examination of those parts of the child's body because the child would not allow it. Despite this ‘‘quick peek, '' which lasted approximately fifteen seconds, Della-Giustina saw no bleeding or discharge and the child's vaginal/rectal region appeared normal, with ‘‘no evidence of trauma or bleeding or bruising.''5

Thereafter, when Concepcion conducted the forensic interview of the child on October 23, 2015, a multidisciplinary team comprised of Detective Michael Cantrell, Kechia Sadler and Vanessa Torres from the department, and Kayte Cwikla-Masas and Katherine Azana from the Child Advocacy Center/Center for Family Justice, observed the interview on a monitor.[6] Prior to the interview, members of this team provided Concepcion with information regarding the allegations against the defendant.7 Concepcion testified on direct examination that the purpose of a forensic interview...

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