State v. Giovanni P.

• Decision Date: 10 February 2015
• Docket Number: No. 35580.,35580.
• Citation: 155 Conn.App. 322,110 A.3d 442
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. GIOVANNI P.

155 Conn.App. 322

110 A.3d 442

STATE of Connecticut

v.GIOVANNI P.^*

No. 35580.

Appellate Court of Connecticut.

Argued Oct. 15, 2014.

Decided Feb. 10, 2015.

Jon L. Schoenhorn, Hartford, with whom, on the brief, was Irene J. Kim, for the appellant (defendant).

Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, was Brian Preleski, state's attorney, for the appellee (state).

GRUENDEL, ALVORD and WEST, Js.

Opinion

ALVORD, J.

The defendant, Giovanni P., appeals from the judgment of the trial court revoking his probation and imposing an eighty month sentence of incarceration. On appeal, the defendant claims that (1) the court improperly admitted a video recording of an interview conducted with his son, F.P.; (2) the court improperly admitted the testimony of Marcela C., who is the defendant's former wife and the mother of F.P., as to statements made to her by F.P.; and (3) the state violated his right to due process by suppressing exculpatory information.¹ We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendant's appeal. On July 20, 1999, the defendant pleaded guilty to 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 General Statutes § 53–21(a)(2). On October 15, 1999, the defendant was sentenced to a total effective sentence of twelve years incarceration, execution suspended after five years, and ten years probation with special conditions. The terms of the defendant's probation included the standard conditions that he not violate any criminal law and that he report to his probation officer as directed. The relevant special conditions of the defendant's probation included that he register as a sex offender and have no unsupervised contact with minors.² The defendant's probation began on October 13, 2004.

In 2004, the defendant met and married Marcela C., and the couple had a son, F.P., in 2006. The defendant was allowed supervised contact with his son after he completed a family education program. The couple filed for divorce in July, 2008. Marcela C. claimed that she witnessed F.P. exhibiting sexualized behaviors sometime in 2010, which she described as “humping” her boyfriend and his brother. In February, 2011, after learning from a babysitter that F.P. had placed an object between the buttocks of the babysitter's child, Marcela C. filed a complaint with the New Britain Police Department. The defendant was arrested for sexual assault in the first degree in violation of § 53a–70 (a)(2) and risk of injury to a child in violation of § 53–21(a)(2).³ The defendant was subsequently charged with violating the terms of his probation in violation of General Statutes § 53a–32. The warrant alleged three grounds for the violation: (1) the commission of new crimes, (2) missing probation appointments, and (3) having unsupervised contact with F.P.

A violation of probation hearing was held.⁴ In its oral decision, the court made three findings by a preponderance of the evidence. First, it found that the defendant missed scheduled probation appointments, thereby violating the standard condition of his probation requiring him to report at the direction of his probation officer.⁵

Second, the court found that the defendant had unsupervised contact with F.P., thus violating the special condition of his probation that he not have unsupervised contact with any minor.⁶ Third, the court found that the defendant had engaged in criminal conduct, thereby violating a standard condition of his probation not to violate any laws.⁷

As a preliminary matter, we set forth general principles of law pertaining to revocation of probation proceedings. “A revocation of probation hearing has two distinct components and two purposes. A factual determination by a trial court as to whether a probationer has violated a condition of probation must first be made. If a violation is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served.” (Internal quotation marks omitted.) State v. Quinones, 92 Conn.App. 389, 391, 885 A.2d 227 (2005), cert. denied, 277 Conn. 904, 891 A.2d 4 (2006). “[A] probation revocation proceeding is civil in nature and, therefore, does not require all of the procedural components associated with an adversary criminal proceeding.... As such, the state's burden in probation revocation proceedings is governed by the fair preponderance of the evidence standard, which is the ordinary civil standard of proof.” (Citation omitted; internal quotation marks omitted.) State v. Holmes, 70 Conn.App. 4, 8, 796 A.2d 561 (2002). “It is well settled that probation proceedings are informal and that strict rules of evidence do not apply to them.... Hearsay evidence may be admitted in a probation revocation hearing if it is relevant, reliable and probative.” (Citation omitted.) State v. Verdolini, 76 Conn.App. 466, 471, 819 A.2d 901 (2003).

I

The defendant first claims that the court erred in admitting into evidence a video recording of an interview conducted with F.P. by Erin Byrne, a clinical child interview specialist at the Children's Advocacy Center (center), located at Saint Francis Hospital. The defendant argues that the court erred in admitting the video recording because (a) it did not satisfy the medical treatment exception to the hearsay rule, and (b) the admission of the video recording violated his due process right to cross-examine F.P. We disagree with both of these claims.

The following additional facts are relevant to the resolution of the defendant's claims. After witnessing the “humping” behaviors sometime in 2010 and after learning of the incident with the babysitter's daughter in February, 2011, Marcela C. contacted the police in February, 2011. On February 28, 2011, F.P. was interviewed by Byrne. The court recounted F.P.'s statements made during the interview as follows: “F.P. states that the father touches him with the finger, does it a lot of times, father touches the butt, he goes inside, touches it a lot of times with fingers. Father says, fun, fun. It really happened. Not pretend. It makes his body feel funny. F.P. touches father's body. Father's body wiggles. Touches father underneath clothes. Touches father butt and then indicated no more talk about body parts.” The interview was recorded. During the violation of probation hearing, the state called Byrne as a witness and also offered the video recording into evidence.⁸ The defendant objected to the video, conducted a voir dire of Byrne, and argued that admission of the video recording was inadmissible hearsay and would violate his right to confrontation. The state offered the video recording under the medical treatment exception to the prohibition on hearsay testimony. Alternatively, the state argued that the video recording was admissible under State v. Shakir, 130 Conn.App. 458, 465, 22 A.3d 1285, cert. denied, 302 Conn. 931, 28 A.3d 345 (2011).

After taking a recess until the next morning to review the law and the arguments, the court admitted the video recording into evidence. The court addressed the state's offer under the medical treatment exception, concluding that the interview was conducted for the purpose of medical diagnosis and treatment, and therefore was admissible under State v. Hickey, 135 Conn.App. 532, 551–52, 43 A.3d 701, cert. denied, 306 Conn. 901, 52 A.3d 728 (2012).

A

The defendant first claims evidentiary error, arguing that the video recording did not satisfy the medical treatment exception to the hearsay rule. We find no error.

We first set forth our standard of review. “To the extent that a court admits evidence relying on an interpretation of the Connecticut Code of Evidence, our review is plenary; but ... where the court's decision was an application of the facts to the law, we afford the trial court's ruling deference and will only reverse for an abuse of discretion.” State v. Juan V., 109 Conn.App. 431, 446, 951 A.2d 651, cert. denied, 289 Conn. 931, 958 A.2d 161 (2008). Because the defendant's evidentiary claim turns on the purpose of the statements made during the interview, which involves an application of the facts to the law, the proper standard of review is abuse of discretion. See State v. Miller, 121 Conn.App. 775, 781, 998 A.2d 170 (reviewing for abuse of discretion admission under medical treatment exception of licensed family therapist testimony recounting statements of sexual abuse victim because purpose of victim's interview determined on the basis of witness credibility), cert. denied, 298 Conn. 902, 3 A.3d 72 (2010) ; State v. Donald M., 113 Conn.App. 63, 70, 966 A.2d 266 (“because neither party contends that the statements in the interview were not hearsay, we need only determine whether the court properly concluded that those statements fell within the medical treatment exception to the hearsay rule”), cert. denied, 291 Conn. 910, 969 A.2d 174 (2009) ; State v. Juan V., supra, 109 Conn.App. at 446–47, 951 A.2d 651.

“We review the trial court's decision to admit [or exclude] evidence, if premised on a correct view of the law ... for an abuse of discretion.... We will make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion.... The trial court has wide discretion to determine the relevancy [and admissibility] of evidence.... In order to establish reversible error on an evidentiary impropriety ... the defendant must prove both an abuse of discretion and a harm that resulted from such abuse.” (Internal quotation marks omitted.) State v. Hickey, supra, 135 Conn.App. at 543, 43 A.3d 701.

We next set forth the legal principles relating to the medical treatment exception to the hearsay rule. “An out-of-court statement offered to prove the truth of the matter asserted is hearsay and is generally...