State v. Gombert

• Decision Date: 09 December 2003
• Docket Number: (AC 23012).
• Citation: 80 Conn. App. 477,836 A.2d 437
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. HOWARD GOMBERT, JR.

80 Conn. App. 477

836 A.2d 437

STATE OF CONNECTICUT v. HOWARD GOMBERT, JR.

(AC 23012).

Appellate Court of Connecticut.

Argued September 10, 2003.

Officially released December 9, 2003.

Schaller, Bishop and Hennessy, Js. Kent Drager, senior assistant public defender, for the appellant (defendant).

Rita M. Shair, senior assistant state's attorney, with whom were Walter D. Flanagan, state's attorney, and, on the brief, Warren Murray, senior assistant state's attorney, for the appellee (state).

Opinion

SCHALLER, J.

The defendant, Howard Gombert, Jr., appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2)¹ and 53a-70 (a) (2),² risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21 (2)³ and threatening in violation of General Statutes (Rev. to 1999) § 53a-62 (a) (1).⁴ On appeal, the defendant claims that (1) the trial court improperly allowed the victim⁵ to testify outside the presence of the defendant, (2) the court improperly allowed the state to present evidence that the defendant was incarcerated when the police interviewed him, (3) the court improperly restricted his cross-examination of J,⁶ who was his girl-friend, (4) the state failed to produce sufficient evidence to support a conviction of attempt to commit sexual assault in the first degree, and (5) this court should review the sealed records of the victim to determine whether the trial court failed to order disclosure of exculpatory information. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 1999 the defendant was living with and dating J. J, who had known the victim's family for years, introduced the defendant to the victim and the victim's family. The victim was approximately eight years old; the defendant was in his mid-thirties.

In July, 1999, the victim slept at J's house. During the next day, the defendant and the victim left J's house to go swimming at Squantz Pond.⁷ Before going to the pond, the defendant stopped and purchased a two piece bathing suit for the victim. The defendant stopped at his father's house and had the victim put the bathing suit on. They then went to the pond.

At the pond, the defendant took the victim swimming. After swimming for a while, the defendant took the victim into a wooded area some distance from where people were swimming. The defendant pulled the bottom part of the victim's bathing suit down and pressed his penis into her buttocks. The defendant's penis did not penetrate the victim's anus; rather, it was pressed between the cheeks of the victim's buttocks. The victim was scared and began to scream, but stopped when the defendant threatened her. The assault lasted between one and ten minutes. After the assault, the victim put her bathing suit on, and the defendant took photographs of her with his camera. The defendant and the victim then returned to J's house. The victim remained silent about the assault because she was afraid of the defendant. The defendant continued to visit the victim's house and gave the victim several presents, including high heels, undergarments and miniskirts. The victim revealed the assault to a friend approximately one year later.⁸ The friend immediately told the victim's mother about the assault. The police were contacted, and the defendant was arrested. Additional facts will be set forth as necessary.

I

The defendant's first claim is that the court improperly allowed the victim to testify on videotape outside the presence of the defendant. The defendant argues that the court abused its discretion by allowing the victim to testify outside his presence because the state failed to show, by clear and convincing evidence, that the victim's testimony would have been less reliable if she were required to testify in his presence. He further argues that this mistake deprived him of his constitutional right to confrontation. We disagree.

Additional facts are necessary for the resolution of the defendant's claim. Prior to trial, the state moved, pursuant to General Statutes § 54-86g,⁹ to have the testimony of the victim taken outside the presence of the defendant. The court held a hearing to determine whether the victim had the ability to testify reliably in the presence of the defendant.¹⁰ At the hearing, the victim's mother testified that she had been first told about the sexual assault by the victim's friend. When the mother questioned the victim, the victim told her that the defendant had threatened her, stating, "[d]on't scream, or I'm going to kill you." The mother also testified that the victim feared the defendant, even though she had told the victim, "[h]e can't hurt you. He can't hurt you. Mommy's not going to let that happen." The mother attributed that fear to the threat and the victim's knowledge that the defendant had assaulted J.¹¹ Most importantly, the following colloquy took place between the mother and the prosecutor:

"[The Prosecutor]: Would your — would your daughter testify — if your daughter were called into this court to testify, would [the defendant's] presence affect her testimony?

"[The Witness]: She won't walk in this courtroom.

"[The Prosecutor]: She what?

"[The Witness]: She wouldn't walk in this courtroom with him here.

"[The Prosecutor]: Why?

"[The Witness]: She's scared to death of him.

"[The Prosecutor]: Have you ever specifically asked her that question, whether she would testify in front of him? And her response is?

"[The Witness]: No.

"[The Prosecutor]: How recently have you discussed this topic of whether she will testify or whether she's still afraid of [the defendant] with your daughter?

"[The Witness]: Two days ago."

The court also heard testimony from Marion Gaetano, the coordinator of the rape crisis unit of the Center for Women and Families in Bridgeport. Gaetano is a counselor at the center and a member of its multi-interdisciplinary investigative team, the purpose of which is to help reduce the trauma of children who disclose a sexual assault. Gaetano explained that the victim and J were very close, and that the victim viewed J as an aunt. Gaetano further testified that the victim would "just shut down" and would not testify if the defendant were present. Further, Gaetano stated that because of the victim's sense of shame, humiliation and embarrassment stemming from the sexual assault, the victim would not be able to testify in a free and uninhibited fashion.

The court also heard testimony from James Fletcher, a senior assistant state's attorney. Fletcher testified that the defendant had been convicted of several crimes of violence against J, including sexual assault in the third degree, assault in the second degree, assault in the third degree, unlawful restraint and criminal violation of a protective order.

The court ruled that the victim would be permitted to testify outside of the presence of the defendant. The court credited the testimony of the victim's mother and Gaetano, and stated that "the child victim in this case is intimidated and fearful of the defendant to the point where she would not be able to give reliable testimony if she were required to testify in the defendant's physical presence." The court went on to state that its "primary focus [was] on the reliability of the minor victim's testimony, not on the injury that the minor victim may suffer by testifying in the presence of the accused."

Our standard of review is well established. "On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous." (Internal quotation marks omitted.) State v. Hydock, 51 Conn. App. 753, 761, 725 A.2d 379, cert. denied, 248 Conn. 921, 733 A.2d 846 (1999). "This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court's decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous." (Internal quotation marks omitted.) State v. Bonello, 210 Conn. 51, 66-67, 554 A.2d 277, cert. denied, 490 U.S. 1082, 109 S. Ct. 2103, 104 L. Ed. 2d 664 (1989). "In evaluating preliminary determinations of the trial court in a criminal case, [t]he evidence will be construed in a way most favorable to sustaining the [determination]. . . ." (Internal quotation marks omitted.) State v. Hydock, supra, 761.

"[I]n criminal prosecutions involving the alleged sexual abuse of children of tender years, the practice of videotaping the testimony of a minor victim outside the physical presence of the defendant is, in appropriate circumstances, constitutionally permissible. . . . [A] trial court must balance [in a case-by-case analysis] the individual defendant's right of confrontation against the interest of the state in obtaining reliable testimony from the particular minor victim in question. . . . [The] trial court must determine, at an evidentiary hearing, whether the state has demonstrated a compelling need for excluding the defendant from the witness room during the videotaping of a minor victim's testimony. In order to satisfy its burden of proving compelling need, the state must show that the minor victim would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that the trustworthiness of the victim's testimony would be seriously called into question. . . . [T]he state bears the burden of proving such compelling need by clear and convincing evidence." (Emphasis in original; internal quotation marks omitted.) State v. Alterisi, 47 Conn. App. 199, 203-204, 702 A.2d 651 (1997)....