State v. Grenier

• Decision Date: 04 September 2001
• Docket Number: (SC 16248)
• Citation: 257 Conn. 797,778 A.2d 159
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. DAVID GRENIER

257 Conn. 797

778 A.2d 159

STATE OF CONNECTICUT v. DAVID GRENIER

(SC 16248)

Supreme Court of Connecticut.

Argued January 18, 2001.

Officially released September 4, 2001.

Norcott, Katz, Palmer, Sullivan and Dunnell, Js. Moira L. Buckley, deputy assistant public defender, for the appellant (defendant).

Lawrence J. Tytla, senior assistant state's attorney, with whom, on the brief, were Kevin Kane, state's attorney, and John P. Gravalec-Pannone, senior assistant state's attorney, for the appellee (state).

Opinion

PALMER, J.

A jury found the defendant, David Grenier, guilty 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 The trial court rendered judgment in accordance with the jury's guilty verdict, from which the defendant appealed to the Appellate Court. The Appellate Court affirmed the trial court's judgment. State v. Grenier, 55 Conn. App. 630, 655, 739 A.2d 751 (1999). We granted the defendant's petition for certification to appeal, limited to the following issue: "Whether the Appellate Court incorrectly determined that the improperly admitted expert testimony regarding the ultimate issue in the case was harmless error?" State v. Grenier, 252 Conn. 931, 746 A.2d 794 (2000). We conclude that the improperly admitted testimony was not harmless and, consequently, the defendant is entitled to a new trial. We, therefore, reverse the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the facts that the jury reasonably could have found. "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 half-brother of S's mother. Also living with the defendant and his mother were S's great-grandmother and great-aunt. 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 [those] 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 [the defendant] 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 [S]. The defendant was upset about the allegations but offered to pay for S's counseling if she needed any.

"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 [by Kimberly Herwerth, a certified child counselor with] Northeastern Connecticut Sexual Assault Crisis Services in Willimantic, [whom] she told ... 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 [the] 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.⁴ "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." State v. Grenier, supra, 55 Conn. App. 632-33.

The defendant appealed from the judgment of the trial court to the Appellate Court, claiming, inter alia, that the trial court improperly had permitted two of the state's witnesses, Herwerth and McGeehan, to testify regarding their belief that S's accusations against the defendant were credible.⁵ The Appellate Court agreed with the defendant that the challenged testimony had been improperly admitted, but concluded that the error was harmless. Id., 641, 643. On appeal to this court, the defendant renews his claim that the trial court improperly permitted Herwerth and McGeehan to testify regarding S's credibility and maintains that the admission of the improper testimony constituted harmful error. We agree with the defendant.⁶

The following additional relevant facts are set forth in the opinion of the Appellate Court. "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 [provided details] and that `[her] statements were very credible.' The defendant's objection to this testimony was overruled.<sup>7</sup> ... "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, [the defendant] 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.

"During her testimony, McGeehan described the different types of behavioral characteristics often exhibited by children who complain of being the victims of sexual abuse.... [T]he state [thereafter] asked McGeehan what she was treating S for, [and] 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."⁸ Id., 634-36.

At the conclusion of the trial, the trial court instructed the jury as follows, notwithstanding its decision to overrule defense counsel's objections to the testimony of Herwerth and McGeehan: "Critical to your decision in this case is the testimony of [S]. In order for you to convict the defendant, you must find her testimony is credible standing alone or when coupled with other evidence in this case is established—is sufficient to establish that the defendant is guilty beyond a reasonable doubt. The veracity of a witness is to be decided by the jury.

"Ordinarily, our law does not permit another witness to give an opinion on the truthfulness of still another witness and that is true in this case. So, the testimony of Herwerth [and] McGeehan ... was not presented so [either] of them could tell you her opinion of [S's] truthfulness. To the extent [that either] one of the ... witnesses may have expressed her own opinion of [S's] truthfulness, you must not consider that opinion in coming to your decision. However, the testimony of these... witnesses was presented to you in order to furnish you with guidance on ... how those deemed knowledgeable in the field evaluated sexual abuse allegations made by children. Each of these ... witnesses testified about the methods used by her and others knowledgeable in the field to evaluate the legitimacy of such complaints or accusations by children. You heard [S's] testimony and the testimony from the so-called experts on how they and others in the field would examine and analyze what [S] had said to determine [S's] truthfulness regarding the accusations made in this case. You may use or not use it—that's entirely up to you—what the experts have said in deciding whether or not you believe [S's] testimony."⁹

The state agrees with the defendant that the Appellate Court properly concluded that the trial court had abused its discretion by allowing the state to elicit the challenged testimony. See State v. Grenier, supra, 55 Conn. App. 641, 643. We repeatedly have stated that an expert may not testify regarding the...