State v. Harrison, 10980

• Decision Date: 14 September 1994
• Docket Number: No. 10980,10980
• Citation: 642 A.2d 36,34 Conn.App. 473
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Bruce HARRISON.

Page 36

642 A.2d 36

34 Conn.App. 473

STATE of Connecticut v. Bruce HARRISON.

No. 10980.

Appellate Court of Connecticut.

Argued Feb. 22, 1994.

Decided May 24, 1994.

Certification Denied Sept. 14, 1994.

Lauren Weisfeld, Asst. Public Defender, for appellant (defendant).

Susan C. Marks, Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty. and Mary Reidy, Asst. State's Atty., for appellee (state).

Before DUPONT, C.J., and EDWARD Y. O'CONNELL and HEIMAN, JJ.

HEIMAN, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the fourth degree in violation of General Statutes § 53a-73a ¹ and two counts of injury or risk of injury to, or impairing the morals of, a child in violation of General Statutes § 53-21. ² On appeal, the defendant asserts that the trial court improperly (1) refused to admit evidence of prior sexual conduct by the victim under an exception to the rape shield law, General Statutes § 54-86f, ³ (2) denied him a continuance to prepare his defense after the state filed a substituted information against him substantially changing the allegations against him, (3) permitted state witnesses to testify as to the ultimate issue of fact presented by the case, (4) denied him access to certain records of the department of children and youth services (DCYS), ⁴ and (5) failed to dismiss one count of the information that was barred by the statute of limitations. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The defendant first sexually assaulted the victim when she was about three years old. The defendant would come into the bathroom while the victim was bathing, and would "feel her all over" and try to get on top of her. The defendant in later years reminded the victim that he had been "doing it to [her] since [she was] three." When the victim was between five and eight years old, the defendant would come into her bedroom, touch her and try to get on top of her. He also pulled down her clothing and tried to touch her with his penis.

After the family moved, the victim began to share a room with her younger sister. At that time, the defendant would wait until everyone was asleep, come into the victim's bedroom, remove her clothing and get on top of her. He began attempting to insert his penis into the victim's vagina, but he was unable to do so even though he exerted force. Some of these events occurred during the day when the victim's mother was at work. The defendant would place the victim's two younger sisters in the bathtub to occupy them while he committed these acts on the victim. These assaults occurred three or four times a week.

When the victim was about ten years of age, the family moved again. At that time, the victim's mother worked from 3:30 until 9 p.m. and the victim was responsible for overseeing her sisters. Although the defendant had his own apartment at the time, he also had a key to the apartment occupied by the victim and her family, and usually stayed at that apartment. The defendant followed the practice of putting the younger girls in the bathtub, forcing them to take a nap or sending them outside while he molested the victim. In 1987, the victim told her father's girlfriend that she was being sexually molested by the defendant. At that time, the victim also spoke with a member of the New Haven police department and stated that she was being sexually abused. About a week later, after being assured by her mother that the defendant would not bother her again, the victim recanted her prior complaint. At the time that she recanted, the defendant had moved out of the apartment occupied by the victim and her family. Shortly after she recanted, the defendant moved back in with the victim and her family and resumed his abuse of the victim.

On April 7, 1989, the victim confided in a school friend that she was being sexually assaulted by her mother's boyfriend. The victim also told this to several adults at school including Gail Guy, a guidance counselor, and Delores Dinnean, a school nurse. Although this misconduct had occurred over a period of years, she spoke out at this time because she was afraid to go home from school. On the previous evening, a male friend, in whom she had also confided, telephoned the victim's mother and advised her that the defendant had been sexually abusing the victim. When the victim's mother learned of the misconduct, she appeared to be angry, not only with the defendant, but with the victim as well. The victim's fear was that her mother would not believe that the sexual abuse had occurred. The defendant had told the victim not to tell her mother because the mother would believe his denials and that the victim would be placed in a home. In addition to telling Guy and Dinnean, the victim also described the defendant's misconduct to Gloria Jetter, a DCYS investigator, Detective Peter Marone of the New Haven police department, Diane Pelazza, a pediatric social worker at the Yale-New Haven Hospital Sexual Abuse Clinic, and John Leventhal, an associate professor of pediatrics at Yale-New Haven Hospital and the medical director of the Sexual Abuse Clinic and of the Child Abuse Program. Each of these witnesses testified as constancy of accusation witnesses.

The defendant testified in his own behalf denying the charges made against him. He offered testimony concerning his rigorous work schedule over the period of time at issue. His former employer also testified as to his work schedule. The defendant offered character evidence concerning his honesty, reliability and trustworthiness. Finally, the defendant offered the testimony of Stephen Herman, a psychiatrist, who had not examined or interviewed the victim, but who testified that some children distort and lie about sexual abuse claims. The jury found the defendant guilty.

I

The defendant claims that the trial court improperly prohibited him from pursuing certain lines of inquiry when the evidence sought to be adduced was admissible under an exception to General Statutes § 54-86f ⁵ thereby denying him his constitutional rights to confrontation and to present a defense. We disagree.

Certain additional facts are necessary for a proper resolution of this issue. Prior to the commencement of the evidence, the state filed a motion in limine seeking, inter alia, to preclude the defendant from introducing any evidence of and from cross-examining the complainant as to her sexual conduct unrelated to conduct with the defendant. In support of the motion, the state invoked the protection of the provisions of General Statutes § 54-86f contending that any such evidence would not meet any of the exceptions under the statute by which such evidence would be rendered admissible. At the time the motion was argued, the defendant asserted that he did not intend to cross-examine the victim with respect to any prior sexual conduct, but that he might call other witnesses as to that issue. The motion in limine was granted.

The victim testified as to acts of sexual misconduct committed against her by the defendant over a period of years. She also testified that, although the defendant had attempted to effect penile penetration, he had not been successful. She was never asked on cross- any questions relating to any sexual experience that she may have had other than with the defendant, nor did the defendant attempt to make any offer of proof during the cross-examination as to any other conduct on the part of the victim.

The state called Guy and Dinnean as witnesses in its case-in-chief. At the completion of the testimony of each of these witnesses, the state turned over to the defendant the statements given to the police by each witness. The statements contained evidence that the victim had disclosed concern that she may have been pregnant and had engaged in sexual intercourse with her boyfriend. The state also called Leventhal who testified to the victim's physical manifestations of sexual abuse. Leventhal testified that the victim's physical appearance upon examination was consistent with the victim's statements that the defendant had attempted penetration and had failed.

After the completion of the state's case-in-chief, the defendant requested permission to cross-examine Guy and Dinnean as to the statement by the victim that she expressed concern about being pregnant. The defendant asserted that this evidence was admissible under the exception to the rape shield statute as evidence against Leventhal's opinion that the physical findings of the victim were consistent with no penetration and as an inconsistent statement by the victim. On appeal, the defendant claims that the evidence was admissible, under General Statutes § 54-86f(2) and (4), as evidence to counter Leventhal's opinion and to show that the victim had an independent basis to describe sexual acts. The defendant also asserts that the trial court improperly ruled on the admissibility of the evidence because it failed to hold a hearing on the matter.

"Statutes such as General Statutes § 54-86f, commonly known as rape shield statutes, have been enacted specifically to bar or limit the use of prior sexual conduct of an alleged victim of a sexual assault because it is such highly prejudicial material." State v. Cassidy, 3 Conn.App. 374, 379, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985). The statute "excludes evidence of prior sexual conduct of the victim of a sexual assault, unless one of the statutory exceptions is satisfied." State v. Christiano, 228 Conn. 456, 469, 637 A.2d 382 (1994). "Our legislature has determined that, except in specific instances, and taking the defendant's constitutional rights into account, evidence of prior sexual conduct is to be excluded for policy purposes. Some of these policies include protecting the victim's sexual privacy and shielding her from undue...