State v. Griswold
| Decision Date | 20 October 2015 |
| Docket Number | No. 35743.,35743. |
| Citation | 160 Conn.App. 528,127 A.3d 189 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Jody GRISWOLD. |
Alice Osedach, assistant public defender, with whom was Alexander Ahrens, certified legal intern, for the appellant (defendant).
Kathryn W. Bare, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Anthony J. Spinella, assistant state's attorney, for the appellee (state).
DiPENTIMA, C.J., and PRESCOTT and FLYNN, Js.
A jury found the defendant, Jody Griswold, guilty of two counts of sexual assault in the fourth degree in violation of General Statutes § 53a–73a (a)(1)(A) and two counts of risk of injury to a child in violation of General Statutes § 53–21. During his trial and over his objection, the trial court admitted video recordings of forensic interviews of the two victims,1 as well as written summaries of the interviews, under the tender years and medical diagnosis and treatment exceptions to the hearsay rule. The defendant now appeals from the judgment of conviction, claiming that (1) the court improperly admitted the videos and summaries in violation of the standard set forth in State v. Maguire, 310 Conn. 535, 78 A.3d 828 (2013), a decision released by our Supreme Court after the defendant's trial, and (2) prosecutorial impropriety deprived him of his right to a fair trial.
We agree with the defendant that, pursuant to the stringent standard explicated in Maguire, the court improperly admitted the videos of the forensic interviews and their attendant written summaries under the tender years exception to the hearsay rule. Nevertheless, we conclude that the court properly admitted the videos and summaries under the medical diagnosis and treatment exception. We further conclude that prosecutorial impropriety did not deprive the defendant of his right to a fair trial. Accordingly, we affirm the judgment of the trial court.
The following facts and procedural history are relevant to our resolution of this appeal. The defendant was arrested after the victims, J, age eight, and her sister, A, age ten, accused him of touching them inappropriately at a pool party hosted by their mother, a childhood friend of the defendant. The victims alleged that the defendant exposed his penis to J, touched her vagina over her bathing suit, and touched A's chest over her bra but under her clothing while alone with the victims in A's bedroom. They further reported that the defendant committed similar acts during a camping trip when he rubbed J's chest under her clothes and exposed himself to A.
Shortly after reporting the defendant's conduct to their mother, A and J underwent forensic interviews by members of a multidisciplinary investigative team (MIT)2 at the Greater Hartford Children's Advocacy Center (advocacy center) at Saint Francis Hospital and Medical Center in Hartford. Lisa S. Murphy–Cipolla, the clinical child interview supervisor at the advocacy center, interviewed A. Erin Byrne, a clinical child interview specialist, interviewed J. Both victims repeated their allegations against the defendant during their respective interviews. In accord with the advocacy center's standard practice, the interviews were video recorded, and DVD copies were provided to the state.
The defendant subsequently moved in limine to preclude the state from introducing A's and J's forensic interview videos during trial, arguing that they constituted inadmissible hearsay and were unfairly prejudicial to him. The state responded that the videos were admissible under two exceptions to the hearsay rule: the tender years exception, codified in § 8–10 of the Connecticut Code of Evidence, and the medical diagnosis and treatment exception, codified in § 8–3(5) of the Connecticut Code of Evidence. In accordance with the provisions of § 8–10 of the Connecticut Code of Evidence, the trial court, Fuger, J., held a hearing outside the presence of the jury to determine the videos' admissibility.
At the hearing, both Murphy–Cipolla and Byrne testified with respect to the interview process at the advocacy center. Murphy–Cipolla testified substantially to the following: the advocacy center conducts interviews of children alleging abuse to "elicit clear and accurate information, minimize any additional trauma, and make recommendations for a medical exam and/or mental health treatment." The advocacy center tapes interviews for two primary reasons: first, so that the children "don't have to talk over and over and over again," and second, to provide a reference for the interviewers when they create their reports. Although Murphy–Cipolla is not employed by any police department, she meets with law enforcement officers and employees of the Department of Children and Families (department) before each interview. Law enforcement officers and department employees then observe the interview as it takes place through a one-way mirror. In this case, a detective from the East Hartford Police Department and an investigative social worker from the department observed A's interview. At the interview's conclusion, Murphy–Cipolla confers with the investigators again to "make sure that [they] hear the same things" and to solicit additional questions from them. Consistent with this practice, Murphy–Cipolla consulted with the detective and social worker observing A's interview, although she could not recall the content of their discussion. At the conclusion of each interview, the child is offered a physical examination and receives a recommendation for mental health evaluation. Following A's interview, Murphy–Cipolla recommended that she receive counseling and a medical evaluation.
Byrne testified that interviews are conducted "[t]o gather information for medical purposes," a point she emphasized repeatedly throughout her testimony. She stated that the primary purpose of videotaping interviews is "to reduce trauma so that the children don't have to be reinterviewed" and "so that the video can serve as the child's statement." Byrne further elaborated that "part of the reason why [the advocacy center] videotape[s] the interview is so that it would serve as a child's ... statement in the event that something ... may go to a next level." She explained that law enforcement officials and department investigators observe interviews through a one-way mirror "to reduce the trauma to the child so they don't have to be reinterviewed by anyone else." Like Murphy–Cipolla, Byrne also testified that at each interview's conclusion, she consults with the law enforcement officials and department investigators who observed the interview to determine whether they "have anything else that [they] think that [she] should ask," a practice she adhered to during her interview with J. During cross-examination by defense counsel, Byrne recalled asking only one question about J's physical health, specifically, "if she had any worries about her body." She additionally admitted that these questions are typically asked at the end of each interview. Murphy–Cipolla recalled recommending that J receive counseling and that J had received a medical examination at the advocacy center following her interview. Finally, Murphy–Cipolla confirmed that law enforcement and department investigators receive video copies of interviews for use in their investigations.
At the conclusion of the hearing, the court denied the defendant's motion in limine, concluding that both the tender years exception and the medical diagnosis and treatment exception to the hearsay rule were applicable. In announcing its ruling, the court specifically found that the statements in the videos were made shortly after the alleged incident, that they contained guarantees of trustworthiness based on the testimony of Murphy–Cipolla and Byrne, and that the videos were not made in preparation for a legal proceeding.
Pursuant to the court's ruling, and after A and J testified at trial, the state played portions of the forensic interview videos for the jury.3 Additionally, the court admitted, over the defendant's objection, written interview summaries created by Murphy–Cipolla and Byrne following their interviews of the victims. The jury subsequently found the defendant guilty of two counts of sexual assault in the fourth degree and two counts of risk of injury to a child. The court rendered judgment in accordance with the jury's verdict and imposed a total effective sentence of forty years incarceration, execution suspended after twenty years, and ten years probation. This appeal followed. Additional facts shall be set forth as needed.
The defendant raises two claims on appeal. First, he claims that the court improperly admitted videos of the victims' forensic interviews and the interview summaries. Second, he claims that the prosecutor made several improper statements to the jury during the state's rebuttal argument and thereby deprived him of his right to a fair trial. For the following reasons, we reject both of these claims.
The defendant first claims that the court improperly admitted the videos of the victims' forensic interviews, as well as the interview summaries generated by Murphy–Cipolla and Byrne, under the tender years and medical diagnosis and treatment exceptions to the hearsay rule.4 More specifically, he claims that, pursuant to the objective standard described in State v. Maguire, supra, 310 Conn. at 535, 78 A.3d 828 the videos and summaries contain testimonial hearsay and, therefore, fall outside both of the hearsay exceptions relied upon by the state. The state argues in response that the videos and accompanying summaries do not contain testimonial hearsay because the essential purpose of the interviews was to provide the victims with medical treatment. Alternatively, the state contends that any error in admitting the videos or summaries was harmless. We agree with the defendant that the court...
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