State v. Grenier

• Citation: 55 Conn. App. 630,739 A.2d 751
• Decision Date: 09 November 1999
• Docket Number: (AC 18211)
• Court: Appellate Court of Connecticut
• Parties: STATE OF CONNECTICUT v. DAVID GRENIER

55 Conn. App. 630
739 A.2d 751

STATE OF CONNECTICUT
v.
DAVID GRENIER

(AC 18211)

Appellate Court of Connecticut.

Argued May 27, 1999.

Officially released November 9, 1999.

Foti, Schaller and Daly, Js.

55 Conn. App. 631

Moira L. Buckley, with whom, on the brief, was F. Mac Buckley, for the appellant (defendant)

Lawrence J. Tytla, senior assistant state's attorney, with whom, on the brief, were Kevin T. Kane, state's attorney, and John P. Gravalec-Pannone, former senior assistant state's attorney, for the appellee (state).

Opinion

SCHALLER, J.

The defendant, David Grenier, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes (Rev. to 1993) § 53a-70 (a) (2)¹ and risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53-21.² On appeal, the defendant claims that the trial court improperly (1) permitted the testimony of certain expert witnesses regarding the credibility of the victim, (2) admitted constancy of accusation evidence, (3) declined to conduct an in camera inspection of the mental health records of the victim and (4) determined that there was sufficient evidence to support the jury's verdict of guilty. We affirm the judgment of the trial court.

55 Conn. App. 632

The jury reasonably could have found the following facts. The victim, S, was born on November 11, 1989. In 1993, the defendant lived with his mother, who is S's maternal grandmother. The defendant is the halfbrother of S's mother. Also living with the defendant and his mother were S's great-grandmother and greataunt. The defendant occupied two rooms in the house, one upstairs and one downstairs. In a downstairs room, known as "David's room," the defendant kept expensive electronic equipment and did not permit S's cousins of similar age in the room. S, however, was allowed into the defendant's room

S and her mother visited the house at least every other weekend. During their visits, S's mother sometimes ran errands and left S at the house while the defendant was home. During a visit in the summer of 1993, S disclosed to her grandmother that the defendant had licked her vagina.³ S's grandmother repeated to her daughter, S's mother, what S had told her. Later that day, when S's father came home, S's mother told him about S's disclosure. Sometime thereafter, S disclosed to both of her parents that "Uncle David" had sexually assaulted her in his room.

Rather than call the police, S's parents wanted to handle the incident as a family matter. A family meeting was held in September, 1993, at the home of S's parents at which the defendant, the defendant's brother and S's grandmother were present. During the meeting, S's father accused the defendant of sexually assaulting his daughter. The defendant was upset about the allegations but offered to pay for S's counseling if she needed any.

55 Conn. App. 633

Following the summer of 1993, S's parents observed S acting in a sexually inappropriate manner for her age. In first grade, S began to see a counselor because of her behavior in school, where she would act inappropriately and talk about having sex. On February 6, 1996, S was evaluated at the Northeastern Connecticut Sexual Assault Crisis Services in Willimantic, where she told Kimberly Herwerth, a certified child counselor, that the defendant had had sex with her. Herwerth contacted the department of children and families and referred S to Deborah McGeehan, a clinical psychologist, for play therapy. During one of their play sessions, S told McGeehan that the defendant had sexually abused her. McGeehan testified that S's behavior during their play sessions was consistent with that of a child who had been sexually abused

At trial, the defendant testified that he had been falsely accused. He testified that in the beginning of 1993, S had a tantrum in front of him after he repeatedly told her to stop poking him with a toy. The defendant also testified that in early 1993, he and S's father had a serious work-related argument that resulted in the defendant leaving his employment with S's father. The defendant maintained that he did not commit the acts with which he was charged.

On November 12, 1997, the jury returned a verdict of guilty on both counts. The court sentenced the defendant to a total effective sentence of eight years imprisonment, suspended after four years, and ten years probation. This appeal followed. Additional facts will be set forth as they become relevant in the context of the defendant's claims.

I

The defendant first claims that he was denied due process of law when the trial court improperly allowed the state's expert witnesses, Herwerth and McGeehan,

55 Conn. App. 634

to testify on the ultimate issue of the case, S's credibility. We conclude that the admission of such testimony was not harmful to the defendant and does not warrant a new trial

The following additional facts are necessary to the resolution of this issue. On direct examination by the state, Herwerth testified that she was a certified child counselor, advocate and interviewer who specialized in child sexual abuse. Herwerth stated that she had received extensive training in the areas of child sexual abuse, interviewing techniques and child development issues. She further testified that she had treated more than 900 children who complained of being victims of sexual assault or abuse.

During her testimony, Herwerth explained the nature of her relationship with S. In response to the state's question whether S had provided her with any details regarding the sexual assault, Herwerth testified that S had and that "[her] statements were very credible." The defendant's objection to this testimony was overruled.⁴ The state went on to ask Herwerth what the term play therapy meant, and Herwerth answered that S was referred to play therapy so that she could "understand

55 Conn. App. 635

what has happened to her...."⁵ Although the defendant now argues that this statement was improper, he did not object to it at trial.

During cross-examination, after the jury was excused from the courtroom, the court reviewed the contents of a bench conference that had occurred prior to Herwerth's testimony in which defense counsel had stated that he would "object to [expert] testimony on the basis of credibility and ultimate issue." Thereafter, defense counsel moved to strike all of Herwerth's testimony and requested a curative instruction on the ground that her testimony that "[S's] statements were very credible" went to the ultimate issue and usurped the fact finder's function. The court denied the defendant's motion to strike, but directed the parties to draft proposed curative instructions. The defendant failed to provide the court with a proposed instruction as requested.

The next expert witness to testify for the state was McGeehan. McGeehan testified that she was a licensed clinical psychologist who specialized in working with children who have been sexually abused. McGeehan stated that she had treated approximately 200 children who complained of being the victims of sexual assault or abuse.

55 Conn. App. 636

During her testimony, McGeehan described the different types of behavioral characteristics often exhibited by children who complain of being the victims of sexual abuse. The state then asked McGeehan for the basis of Herwerth's referral of S to her. McGeehan replied that Herwerth had referred S to her because Herwerth felt that S "needed to recover from the abuse."⁶ Although the defendant now argues that this statement was improper, he did not object when it was made. When the state next asked McGeehan what she was treating S for, McGeehan responded that she was treating S for, inter alia, "the trauma of the abuse that she experienced." The defendant's objection to this testimony was overruled.⁷

55 Conn. App. 637

The defendant argues that it was improper for the trial court to permit these four statements by the two expert witnesses because the truthfulness of S's claims was the ultimate issue to be determined by the trier of fact. We will address the defendant's unpreserved claims first.

A

With regard to Herwerth's answer that S was referred to play therapy so that she could "understand what has happened to her"⁸ and McGeehan's reply that Herwerth felt that S "needed to recover from the abuse,"⁹ the defendant failed to object to these statements at trial and now seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989),¹⁰ or, alternatively, under the plain error doctrine. We conclude that the defendant cannot prevail under either of these standards.

While the record before us is adequate for review, the defendant has failed to meet the second prong of Golding because his claim of evidentiary impropriety is not one of constitutional magnitude. "[T]he admissibility of expert testimony is a matter of state evidentiary law that, in the absence of timely objection, does not warrant appellate review under [Golding] ...

55 Conn. App. 638

because it does not, per se, raise a question of constitutional significance." (Citation omitted.) State v. Joyner, 225 Conn. 450, 480, 625 A.2d 791 (1993); State v. Vilalastra, 207 Conn. 35, 46, 540 A.2d 42 (1988); State v. Cardany, 35 Conn. App. 728, 740, 646 A.2d 291, cert. denied, 231 Conn. 942, 653 A.2d 823 (1994). "Moreover, we have declined to attach constitutional significance to the erroneous admission of expert testimony concerning an ultimate fact." State v. Campbell, 225 Conn. 650, 657, 626 A.2d 287 (1993); State v. Cardany, supra, 740.

Simply put, the defendant "has put a constitutional tag on a nonconstitutional evidentiary ruling." (Internal quotation marks omitted.) State v. Vilalastra, supra, 207 Conn. 46. "[I]t would trivialize the constitution to transmute a nonconstitutional claim into a constitutional claim simply because of the label placed on it by a party or because of a strained...