State v. Gonzalez

• Decision Date: 25 January 2005
• Docket Number: No. 16977.,16977.
• Citation: 272 Conn. 515,864 A.2d 847
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Gilberto GONZALEZ.

864 A.2d 847

272 Conn. 515

STATE of Connecticut v. Gilberto GONZALEZ.

No. 16977.

Supreme Court of Connecticut.

Argued March 11, 2004.

Decided January 25, 2005.

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Patricia M. Froehlich, state's attorney, and Debra Collins, assistant state's attorney, for the appellant (state).

Moira L. Buckley, assistant public defender, for the appellee (defendant).

SULLIVAN, C.J., and BORDEN, NORCOTT, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

PALMER, J.

A jury found the defendant, Gilberto Gonzalez, guilty of two counts of sexual assault in the first degree in violation of General Statutes (Rev. to 1993) § 53a-70 (a)(2)¹ and two counts of risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53-21.² After the trial court rendered judgment in accordance with the jury's verdict, ³ the defendant appealed to the Appellate Court, which concluded that the defendant was entitled to a new trial due to the improper admission of certain constancy of accusation evidence. See State v. Gonzalez, 75 Conn.App. 364, 368, 815 A.2d 1261 (2003). We granted the state's petition for certification limited to the following issue: "Did the improper admission of the challenged constancy of accusation testimony constitute harmful error?" State v. Gonzalez, 263 Conn. 913, 822 A.2d 242 (2003). We conclude that the evidentiary impropriety was harmless and, therefore, that, contrary to the determination of the Appellate Court, the improper admission of the constancy of accusation evidence does not warrant a new trial. In light of that conclusion, we also address the defendant's alternative grounds for affirming the judgment of the Appellate Court. Specifically, the defendant claims that: (1) his due process right to a fair trial was violated by virtue of the trial court's failure to maintain the appearance of impartiality; (2) the trial court improperly allowed one of the state's expert witnesses to testify in a manner that unfairly bolstered the victim's credibility; and (3) the trial court improperly permitted the victim's mother to testify regarding her belief that the defendant had sexually abused the victim. We reject the first and third of these claims and decline to review the second of these claims. Accordingly, we reverse the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following relevant facts and procedural history. "The victim⁴ was born in 1985. In 1993 and 1994, the victim lived with her mother, the victim's two half-sisters and the defendant. The defendant and the victim's mother had lived together [since] the victim was two years old.

"The victim testified that the defendant sexually assaulted her at least four times a week during 1993 and 1994. Those assaults occurred in the family home while the victim's mother was either absent from the apartment or while she was in another part of the apartment sleeping. The victim testified that she did not cry out or otherwise attempt to tell her mother about the assaults because the defendant had threatened her. One of the victim's half-sisters witnessed the assaults on the victim on several occasions. The defendant unsuccessfully attempted to coerce the half-sister into participating in those acts.

"The half-sister eventually disclosed the defendant's abuse of the victim to a friend at school. That friend, in turn, told [a] school social worker about the sexual assaults. On March 24, 1994, the [school] social worker spoke with the victim about the assaults. The victim testified that although her half-sister had encouraged her to confide in the school social worker, she initially had lied to the social worker and denied that the defendant had assaulted her. At trial, the victim stated that she had denied that those assaults had occurred because she was afraid of the defendant. The victim eventually did tell the school social worker that the defendant had assaulted her. The victim also was interviewed by [Rita Kornblum] an intake worker for the department of children and families (department) and [Kimberly Herwerth] a sexual assault crisis counselor. During those interviews, the victim confirmed the allegations of abuse.

"Following those interviews, the victim and her half-sister confronted the defendant and the victim's mother with the allegations of abuse during a meeting at the department's offices. After that meeting, the department took the children into its custody. Three days later, the defendant fled to Puerto Rico. On March 2, 2000, a fugitive task force arrested the defendant in Puerto Rico. [The defendant] was extradited to Connecticut on March 22, 2000.

"On April 5, 1994, a physician [Frederick Berrien] examined the victim on the department's referral. Although his examination did not establish conclusively that the victim had been sexually assaulted, the physical evidence was sufficient for [Berrien]... to form `a very high degree of suspicion' that the victim had been exposed to some form of sexual contact." State v. Gonzalez, supra, 75 Conn.App. at 366-68, 815 A.2d 1261. At the conclusion of the defendant's trial, the jury found him guilty of two counts of sexual assault in the first degree and two counts of risk of injury to a child.

On appeal to the Appellate Court, that court agreed with the defendant that the trial court improperly had permitted two witnesses to testify regarding the details of complaints made by the victim in violation of State v. Troupe, 237 Conn. 284, 304, 677 A.2d 917 (1996).⁵ Without explicitly engaging in a harmful error analysis, the Appellate Court reversed the judgment of conviction on the basis of this evidentiary impropriety and remanded the case for a new trial. See State v. Gonzalez, supra, 75 Conn.App. at 368, 373, 386, 815 A.2d 1261. On appeal to this court following our granting of certification, the state claims that, although the challenged constancy of accusation evidence exceeded the bounds of Troupe, its admission was harmless. The defendant contends that the Appellate Court properly concluded otherwise and contends, alternatively, that several other alleged evidentiary improprieties warrant affirmance of the judgment of the Appellate Court. We agree with the state that neither the improperly admitted constancy of accusation evidence nor the other alleged evidentiary improprieties require a new trial.

I

We first address the state's claim that the improperly admitted constancy of accusation evidence was harmless. The following facts and procedural history are relevant to this claim. Prior to trial, the defendant filed a motion in limine seeking to bar the state from introducing any constancy of accusation evidence. The defendant alternatively requested that any such evidence be limited in accordance with the dictates of Troupe. The trial court denied the defendant's motion to bar the state from introducing any constancy of accusation evidence with the caveat that, in accordance with the principles set forth in Troupe, such evidence would be limited to the fact that the victim made a complaint, the date and nature of that complaint, and the identity of the assailant.

At trial, the state called the victim as its first witness. The victim testified at length, and in graphic detail, regarding the defendant's repeated sexual assaults. In particular, she explained that the defendant "would place [his] penis in my vagina and he would put his penis in my anus and he would put his mouth in my vagina." The victim testified that, on one occasion, the defendant "came into my bedroom, tried to wake me up, pulled down my underwear and he would put his penis in my vagina and his mouth in my vagina," and that, another time, the defendant "[got] some Vaseline ... and put it on my vagina and on my anus and then he put his penis in my vagina and in my anus and it hurt so much that — it just hurt and he wouldn't stop and [it] burned." The victim further stated that, on another occasion, the defendant "had [the] bathtub ready, filled with water, and he told me to take off my clothes and he took off my underwear and he was undressed and he told me to get into the bathtub and he had soap, a bar of soap, and he wet the soap and made bubbles and he put the soap in my vagina and when he was doing that it just burned... it burned like fire. And then, while I was in the bathtub and he went in the bathtub at the same time ... he put his penis in my vagina." The victim explained that, on yet another occasion, the defendant "wrestled me.... [H]e grabbed me as if I was a baby, like he was ... changing a baby's diaper," and that, on that occasion, "he put his penis in my vagina and in my anus."

The victim also testified about the lurid details of other incidents of sexual abuse by the defendant. In describing one such incident, the victim stated that the defendant "was on top of [the] bed ... and ... he told me to take off my clothes and my underwear. He had his pants down and his underwear down and put his penis in my vagina and while he was doing that — the time that he was doing that — all this white stuff came out and that stuff just, just stink, and that made me throw up, and it just bothered me so much that, you know ... he even put the white stuff in me while he was putting his penis in me." The victim described how she "would cry because of the pain," but the defendant would not stop the abuse. She also explained that, while the defendant was penetrating her vaginally and anally, he would ask "if I liked it or [if] someday I would let a guy do that to me." The victim further indicated that there were occasions when she knew that the defendant had ejaculated because, as she explained, she "would smell the white stuff."

One of the victim's half sisters, who witnessed some of the abuse perpetrated on the victim by the defendant, also testified for the state. Her testimony, like that of the victim, was detailed...