State v. George
| Decision Date | 28 November 2006 |
| Docket Number | No. 17578.,No. 17577.,17577.,17578. |
| Citation | 910 A.2d 931,280 Conn. 551 |
| Parties | STATE of Connecticut v. GEORGE J. |
| Court | Connecticut Supreme Court |
Jeremiah Donovan, Old Saybrook, for the appellant (defendant).
Theresa Anne Ferryman, senior assistant state's attorney, with whom, on the brief, was Kevin T. Kane, state's attorney, for the appellee (state).
BORDEN, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.
In these consolidated cases, the defendant, George J.,1 appeals from the trial court's judgments of conviction, rendered after a jury trial, in the first case, of sexual assault in the first degree in violation of General Statutes (Rev. to 1993) § 53a-70 (a)(2), Public Acts 1993, No. 93-340, § 14 (P.A. 93-340),2 and risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53-21,3 for sexual acts committed against the defendant's foster son S.J., and, in the second case, of sexual assault in the second degree in violation of General Statutes (Rev. to 1993) § 53a-71 (a)(1), P.A. 93-340, § 2,4 and risk of injury to a child in violation of § 53-21 for sexual acts committed against another boy, K.M. The defendant's principal claims on appeal are that: (1) his prosecution was barred in whole or in part by the statutes of limitations; (2) the trial court improperly refused to allow the defendant to exercise peremptory challenges on the basis of gender; (3) the trial court improperly admitted S.J.'s testimony despite overwhelming evidence that his recollection of the sexual abuse was the result of hypnosis; and (4) the trial court improperly admitted a report by the department of children and families (department) containing multiple levels of hearsay to corroborate witnesses' testimony. We affirm the trial court's judgments.
The record contains the following undisputed facts and procedural history. S.J. became a ward of the department in 1987 when he was between the ages of four and five years old. Prior to this time, the department had removed S.J. from his birth mother's home on the basis of allegations that S.J. had been sexually abused by various men with whom his mother had had relationships, and later had removed him from the care of his paternal grandparents after allegations of sexual abuse by various men continued. There also were allegations of physical abuse. In 1988, when S.J. was six years old, the department placed him in foster care with the defendant and his wife, Eleanor J. At this time, the defendant's biological son lived with the defendant and his wife; later, another foster son, who was older than S.J., came to live at the defendant's home. Sometime in or around this period, the defendant stopped working due to a heart condition; the defendant's wife worked outside the home.
As S.J. entered adolescence, he manifested numerous troubling behaviors, including returning home late at night, lying, stealing and making sexually inappropriate remarks. After stealing a $600 video game in June, 1995, when he was twelve years old, S.J. was returned to the custody of the state. There is conflicting evidence as to whether S.J. had been warned that his behavioral problems might lead to his removal from the defendant's home and whether the defendant and his wife or the department had initiated S.J.'s removal.
The department thereafter placed S.J. at the Harmony Hill School (Harmony Hill), an institution in Rhode Island for youths with behavioral disorders. While at Harmony Hill, S.J. continued to exhibit serious behavioral and emotional problems, and he received various forms of therapy, one of which was termed "hypnotherapy." On May 22, 1996, a Harmony Hill staff member informed the department that S.J. had alleged that the defendant had molested him sexually while he was living with the defendant. S.J. previously had not made such allegations to anyone. On May 30, 1996, Lorraine Plante, an investigator for the department, interviewed S.J. On June 6, 1996, Plante faxed to the Groton police department a "notification ... of suspected child sexual abuse ...." On June 10, 1996, Groton police officer Joseph Nesdill interviewed S.J., at which time S.J. alleged that the defendant had engaged in oral sex with him on a regular basis in the defendant's home. Nesdill interviewed staff from the department, as well as S.J.'s therapist at Harmony Hill, who had indicated that S.J. had mental and emotional problems and cast doubt on S.J.'s credibility. Nesdill also interviewed the defendant, who denied the allegations and claimed that S.J. had invented them because he was angry at having been removed from the defendant's home. Nesdill then presented the information that he had obtained to the office of the state's attorney, which instructed him to close the case without making an arrest.
In 2001, Nesdill reopened the case, after having received information on January 25, 2001, from Timothy Hennessey as to other young men who claimed to have been either victimized by the defendant or put at risk of such harm. Hennessey was a private investigator who worked for a firm that had been hired by Eleanor J. to conduct a background check on the defendant in connection with divorce proceedings. Eleanor J. had provided Hennessey with the names of several young men, K.M., J.N., M.G. and T.C., all of whom were friends of Eleanor J.'s older foster son and who had visited at the house where she and the defendant lived. In the course of his investigation, Hennessey obtained a statement from K.M. alleging that the defendant had engaged in oral sex with him, as well as statements from the three other young men alleging that the defendant had engaged in acts and made comments to them that were sexually suggestive. Nesdill interviewed the young men identified by Hennessey and again interviewed both S.J., who reasserted the veracity of his 1996 allegations, and the defendant, who claimed that his wife had fabricated the allegations because of the impending divorce.
On June 7, 2001, the state issued an arrest warrant for the defendant based on S.J.'s 1996 complaint and K.M.'s 2001 complaint. In one substitute information, the state charged the defendant with sexual assault in the first degree and risk of injury to a child for having engaged in fellatio with a person under the age of thirteen, S.J., at various times between 1994 and 1995; in a second substitute information, the state charged the defendant with sexual assault in the second degree and risk of injury to a child for having engaged in fellatio with a person over the age of thirteen but under the age of sixteen, K.M., during the same period of time. Thereafter, over the defendant's objections, the trial court, Parker, J., granted the state's motion to consolidate the cases for trial.
During jury selection, the defendant informed the trial court, Hadden, J., that he intended to exercise peremptory challenges against prospective male jurors on the basis of their gender. Thereafter, the court refused to allow the defendant to exercise peremptory challenges against two male venirepersons when the defendant's sole objection to the men was their gender.
The defendant also filed a motion in limine to exclude S.J.'s testimony, claiming that S.J.'s recollection of the alleged abuse had been induced hypnotically, without scientific safeguards of any kind, and that the hypnosis had resulted in implanting false memories. The trial court denied the motion, finding that S.J. had not been hypnotized. Thereafter, S.J., who was twenty-two at the time of the trial, offered the following testimony. The defendant had been sexually abusing S.J. from the time he was approximately seven years old until he was removed from the defendant's home in 1995, and even once during a visitation after he had been removed from the home. The sexual abuse by the defendant began when he asked S.J. to demonstrate how he previously had been sexually abused, and S.J. finally gave in to repeated requests and performed fellatio on the defendant. The defendant also had brought out a vibrator on one occasion when he showed S.J. and some friends a pornographic movie. On another occasion, S.J. had witnessed the defendant engage in oral sex with another boy, who, to the best of S.J.'s recollection, was K.M. According to S.J., J.N. also was present at the house that day. S.J. was not, however, able to recall many of the details of prior events or statements that he previously had made about the abuse to Nesdill, Plante, his therapists and various other persons.
K.M., who was twenty-three years old at the time of the trial, offered the following testimony. One day in the summer of 1994, when K.M. was between the seventh and eighth grades of school, he, S.J. and J.N. were in the defendant's home when the defendant played a pornographic movie for them depicting oral and anal sex between men. The defendant had asked whether the boys liked what they saw, gave vibrators to them and watched while S.J. and K.M. used the vibrators to stimulate their exposed penises. K.M. and S.J. then went into a bedroom with the defendant, where the defendant exposed his penis. K.M. performed fellatio on the defendant and observed the defendant fondle S.J.'s genitalia. S.J. appeared to be comfortable with the acts that were taking place. Thereafter, S.J. left the bedroom, and the defendant then performed fellatio on K.M. Afterwards, K.M. returned to the living room, where J.N. still was seated. K.M. did not disclose the incident to anyone until several years later when he disclosed it first to a girlfriend, and then to Hennessey.
To corroborate the testimony of K.M. and S.J., the state offered the testimony of J.N., M.G. and T.C. J.N. testified that the defendant had shown a homosexual pornographic film to him, K.M. and S.J. According to J.N., the defendant, S.J. and K.M....
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