State v. Hickey

• Citation: 135 Conn.App. 532,43 A.3d 701
• Decision Date: 15 May 2012
• Docket Number: No. 31222.,31222.
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Denis J. HICKEY.

135 Conn.App. 532

43 A.3d 701

STATE of Connecticut

v.Denis J. HICKEY.

No. 31222.

Appellate Court of Connecticut.

Argued March 17, 2011.

Decided May 15, 2012.

Ioannis A. Kaloidis, Waterbury, for the appellant (defendant).

Nancy L. Chupak, senior assistant state's attorney, with whom, on the brief, were David Shepack, state's attorney, and Dawn Gallo, senior assistant state's attorney, for the appellee (state).

LAVINE, ALVORD and McDONALD, Js.

LAVINE, J.

The defendant, Denis J. Hickey, appeals from the judgment of conviction, rendered following a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a–70 (a)(2) and one count of risk of injury to a child in violation of General Statutes § 53–21(a)(2). On appeal, the defendant claims that (1) the court abused its discretion when it denied his motion for a continuance so that he could obtain private counsel and further investigate the charges brought by the state, (2) the court improperly admitted evidence of (a) the defendant's prior, uncharged sexual misconduct against another minor and (b) hearsay statements pursuant to the medical treatment exception, (3) prosecutorial misconduct deprived him of a fair trial, (4) the court violated his right against double jeopardy by imposing consecutive sentences and (5) the court improperly denied his request to conduct an in camera review of the victim's mental health records. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In June, 2001, the victim,¹ along with the rest of her family, lived with the defendant. The victim was five years old at this time and was scheduled to start kindergarten in the fall. While the defendant generally treated the victim's two brothers “pretty good,” he treated the victim differently, and she “became very attached to [the defendant] at one point.” Between April and October, 2001, the victim's family often stayed at a campground with the defendant and slept in his trailer. During one of those camping trips, the defendant digitally penetrated the victim's anus while she was sleeping (campground incident). The victim woke up during the incident and recognized that the defendant was touching her.²

In December, 2002, after the victim and her family moved out of the defendant's house, the victim and her brothers were listening to a song that included the word “sex.” The victim began dancing and saying the word “sex” while thrusting her hips. After the victim's mother, K.B., explained to her that this was an inappropriate word, the victim asked: “Why? Sex is what [the defendant] did to me.” Upon hearing this, K.B. called “a [University of Connecticut] hotline and presented what had just been said to” her. Soon thereafter, the department of children and families contacted K.B. and she then filed a police report. The police set up a videotaped interview with a multidisciplinary child abuse team. K.B. testified that this initial disclosure of abuse by the victim pertained to an incident that occurred at the defendant's house (house incident) and not at the campground.

After the interview with the multidisciplinary child abuse team, the victim underwent a physical examination performed by Judith Moskal–Kanz, a pediatric nurse-practitioner and forensic medical examiner for child abuse, at St. Mary's Hospital in Waterbury. Moskal–Kanz conducted a general physical and colposcopic examination of the victim's genitals. During the examination, the victim made repeated spontaneous disclosures that the defendant had touched her in the areas that Moskal–Kanz was examining. On the basis of the examination, Moskal–Kanz made findings that the victim had injuries to her vagina “consistent with penetration” caused by repetitive friction from sexual abuse. She also testified that the victim's “anal exam was normal” but that this did not “suggest” anything to her because “[t]here's usually not an anal injury during sexual abuse unless you're talking about a rather forceful act or a very repetitive act over a long term.”

In 2006, the victim disclosed the campground incident to her mother. K.B. later reported this disclosure to the police. The victim gave another videotaped interview to a multidisciplinary child abuse team. The defendant was charged with sexual assault in the first degree and risk of injury to a child in connection with the campground incident. On March 6, 2009, the jury found the defendant guilty as to both counts. On June 12, 2009, the court sentenced the defendant to an effective term of thirty years of imprisonment, suspended after twenty years, and thirty-five years of probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant claims that the court abused its discretion by denying his motion for a continuance to (1) allow him more time to investigate the charges and (2) obtain private counsel. We disagree.

“The determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion.... A reviewing court is bound by the principle that [e]very reasonable presumption in favor of the proper exercise of the trial court's discretion will be made.... To prove an abuse of discretion, an appellant must show that the trial court's denial of a request for a continuance was arbitrary.... There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied ....

“Among the factors that may enter into the court's exercise of discretion in considering a request for a continuance are the timeliness of the request for continuance; the likely length of the delay ... the impact of delay on the litigants, witnesses, opposing counsel and the court; the perceived legitimacy of the reasons proffered in support of the request ... the timing of the request; the likelihood that the denial would substantially impair the defendant's ability to defend himself; [and] the availability of other, adequately equipped and prepared counsel to try the case.... We are especially hesitant to find an abuse of discretion where the court has denied a motion for continuance made on the day of the trial.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Ross V., 110 Conn.App. 1, 7–8, 953 A.2d 945, cert. denied, 289 Conn. 939, 958 A.2d 1247 (2008).

The following additional facts are relevant to this claim. On July 27, 2007, the state filed a demand for notice of alibi defense, which alleged that the defendant sexually abused the victim at some point between April and June, 2002. The police report also stated that the campground incident took place between April and June, 2002.³ One week prior to jury selection, however, the state filed the long form information, which alleged that the abuse occurred not in 2002 but in 2001.

On February 11, 2009, just prior to jury selection, the defendant requested a continuance on two separate grounds. First, the defendant argued that he needed additional time to investigate the charges and locate potential witnesses in light of the change of the date of the abuse from 2002 to 2001. The defendant argued that the change in dates “impacts any potential alibi, although with the wide range of months here, it would probably be impossible to establish an alibi, but it does require more work on our part to establish what took place during calendar 2001 as opposed to 2002.” Additionally, the defendant claimed that he was attempting to locate witnesses in Florida who would testify “that this incident could not have occurred in calendar year 2001 as described....”

Second, the defendant argued that the court should grant him a continuance so that he could retain private counsel. The defendant's counsel, an assistant public defender, stated that he was informed only two days earlier of the defendant's intention to hire private counsel. Although the defendant had not yet finalized arrangements with the private attorney, the defendant's counsel argued that the defendant had the ability to retain the private attorney and that the attorney was “willing to represent him....” Additionally, the defendant had “a substantial professional relationship with this law firm” because it had “represented him on at least three different occasions....” The defendant's counsel then stated that “[a]nother few weeks, Your Honor, I submit, is not going to hurt anyone here, and it will benefit [the defendant], and that's what he's asking for.”

The court denied the request for a continuance on both grounds. As to the defendant's request to further investigate the allegations, the court explained that the defendant was not prejudiced by the change in dates because the original dates had a broad time range and the defendant previously had notice that the original dates might have been inaccurate.⁴ As to hiring a private attorney, the court explained that the public defender appointed to represent the defendant was an “experienced criminal lawyer” and that the defendant had had eighteen months to hire a private attorney but had failed to do so even though he had “substantial means....”

The court, however, told the defendant, “[i]f you bring it to the court's attention, some viable witness ... [i]f you produce to the court some viable witness, that there may be some type of issue about getting that person here, I'll try to make some accommodations ... in terms of that witness for the jury. We can have some flexibility on that issue.” The court then scheduled the last day of jury selection for February 19, 2009, and the first day of evidence for March 4, 2009, stating, “[a]nd that gives [the defendant's counsel] two weeks to work on his investigation.”...