State v. Hydock

• Decision Date: 16 February 1999
• Docket Number: (AC 16668)
• Citation: 725 A.2d 379,51 Conn. App. 753
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. MICHAEL HYDOCK

51 Conn. App. 753

725 A.2d 379

STATE OF CONNECTICUT v. MICHAEL HYDOCK

(AC 16668)

Appellate Court of Connecticut.

Argued October 26, 1998.

Officially released February 16, 1999.

Lavery, Schaller and Cretella, Js. Paul R. Kraus, special public defender, for the appellant (defendant).

Judith Rossi, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Elpedio Vitale, senior assistant state's attorney, for the appellee (state).

Opinion

SCHALLER, J.

The defendant, Michael Hydock, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2),¹ attempt to commit sexual assault in the third degree in violation of General Statutes §§ 53a-49² and 53a-72a (a) (1) (A)³ and three counts of risk of injury to a child in violation of General Statutes § 53-21.⁴ On appeal, the defendant claims that the trial court improperly (1) granted the state's motion to videotape a child victim's testimony outside the physical presence of the defendant, (2) permitted the state to ask leading questions of a child victim on direct examination, (3) restricted the defendant's cross-examination of a witness for the state and (4) admitted testimony concerning a prior consistent statement by the victim. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In August, 1994, the victims, J, age five, and C, age seven, were living with their mother and her friend, Y, in an apartment in New Haven. Both their mother and Y used illegal drugs, and their mother had previously been incarcerated for offenses related to her drug problem. The victims' mother had known the defendant since childhood, and in 1991 the defendant had cared for the two children for a period of time while their mother was incarcerated. The two lost contact with each other until the summer of 1994, when the defendant began visiting the victims' mother regularly and using drugs with her and Y.

On an evening in late August, 1994, the victims' mother went to buy drugs, and left Y and the defendant at home with her two children. Sometime thereafter, Y told the defendant that she was also going out to purchase drugs. After she left, the defendant played a game and watched television with the girls.

While they were watching television, the defendant told C to give him a hug, but she refused his request. The defendant then sat on the sofa next to J's feet and pulled her toward him, but she pulled away and continued to watch television. The defendant then licked a finger on his right hand, leaned over J, put his hand under her nightgown, pushed her panties aside and penetrated her vagina with his finger. The defendant then removed his finger from J, unzipped his pants, took J's hand and tried to make her touch his penis, but she closed her hand and pulled it away without touching it. After the incident, the defendant told J that he would kill her if she told her mother what had happened. When Y returned home, C and the defendant were in the living room and J was playing in the bedroom by herself. The defendant told Y that he had to leave, and made a hasty exit. Later that evening, J told her sister, C, what the defendant had done to her.

The next day, in the presence of C and Y, J told her mother what the defendant had done. Her mother responded by telling J, "You can't tell anybody, I'll go to jail, they will take you away from me." Later the same day, when the defendant came back to the house, Y confronted him by saying that he had "a lot of ... nerve after doing what [he] did." Before she could say anything more, the defendant gestured toward J, who was standing nearby, and blurted out, "She is lying." Y then began to strike the defendant, asking how he knew what she meant before she had even told him of the accusation. J's mother, who had overheard the exchange, then began to strike the defendant until he left.

A few days later, on August 26, 1994, J and C told a friend of their grandfather about the incident and, in the girls' presence, she told their grandfather. J and C were then taken to their grandmother's house where J complained that her vaginal area hurt. The girl's grandmother took J to Yale-New Haven Hospital that evening. At the hospital, J told Dan Campbell, a hospital social worker, what the defendant had done to her. J also saw Linda Barthauer, a pediatric physician, and told her that the defendant had penetrated her vagina with his finger, and that he had also tried to make her touch his private parts. A subsequent examination by Barthauer revealed scratches and reddening in the vaginal area, which Barthauer testified could be consistent with sexual contact or penetration of the vagina. The two girls have lived with their grandmother since the incident.

On August 30, 1994, J was interviewed by Sergeant Kelly Wardrup of the New Haven police department's sexual assault unit. During the course of the interview, J made several drawings depicting the ordeal and told Wardrup that the defendant put his finger in her "private" and that she was afraid of him.

In January, 1995, J was evaluated at the child abuse clinic of Yale-New Haven Hospital, where she told Janet Murphy, a pediatric nurse, what the defendant had done to her. Additionally, J talked to Barbara Bernstein, her school social worker, and Susan Dryzgula, her teacher, with regard to what the defendant had done.

At trial, the state introduced the videotaped testimony of J, taken outside the presence of the defendant, in which she explained in detail what the defendant had done to her. The defendant took the stand and testified that in the second week of August, 1994, he went to the children's home and found them alone with a man named Dave. The defendant maintained that was the last time he had been at their apartment.

The jury returned a verdict of guilty on all counts. The trial court sentenced the defendant to a total effective sentence of twenty years imprisonment suspended after sixteen years, and five years probation with special conditions, including sex offender and substance abuse treatment. This appeal followed. Additional facts will be set forth as they become relevant in the context of the defendant's specific claims.

I

The defendant first claims that the trial court improperly granted the state's motion to videotape J's testimony outside of his physical presence pursuant to General Statutes § 54-86g.⁵ Specifically, the defendant argues that the state did not prove by clear and convincing evidence that a compelling need existed to take J's testimony outside his physical presence. We do not agree.

Prior to the trial in this case, the state moved for permission to videotape J's testimony outside the presence of the defendant. An evidentiary hearing was held before the trial court, Devlin, J., on January 16, 1996. At the hearing, the state first presented testimony from the victims' grandmother who testified that J had been living with her since the August, 1994 incident. J told her grandmother that she was afraid of the defendant, that she often thinks about what he did to her and that she did not want to come to court because of her fear of the defendant. The victims' grandmother also testified that, before the August, 1994 incident, J had observed the defendant get very angry, had heard him engage in arguments and had seen him punch and knock down her mother. In her grandmother's opinion, J would not lie if she was called to testify. Given J's apprehension of the defendant, however, her grandmother believed that J would be inhibited and not answer questions about the allegations in his presence.

The state also presented testimony from Bernstein, J's school social worker, who had been seeing J on a regular basis since November, 1994. Bernstein testified that in October, 1994, J was brought to the student assistance team in her school because she was having some difficulties in the classroom, acting withdrawn and not performing well academically. During the course of their sessions together, J told Bernstein about the sexual abuse by the defendant. J also confided in Bernstein that she was afraid of the defendant and that she was having a recurring nightmare about the defendant's being after her. Bernstein testified that when J spoke about the nightmares and what the defendant had done to her, J's demeanor changed. She became visibly upset and more withdrawn, and she slumped down in her chair and would not make eye contact. J expressed her fear of the defendant on more than one occasion and told Bernstein that she did not want to see him. Bernstein believed that because J was very fearful of the defendant, J would be intimidated by his presence in the courtroom. Furthermore, Bernstein felt that J would be less intimidated and therefore give more accurate testimony if the defendant was not present in the courtroom. In Bernstein's opinion, J would be intimidated or otherwise inhibited by the defendant's presence so that the trustworthiness or completeness of J's testimony would be called into question.

The state introduced the testimony of Murphy, a nurse for the child sexual abuse program at Yale-New Haven Hospital, who last saw J during an evaluation in January, 1995. During the evaluation, J told Murphy about the sexual abuse by the defendant and also expressed fear of the defendant. Murphy's opinion, based on J's age, her fear of the defendant and her having witnessed his violent behavior toward others, was that J would be intimidated and less reliable in a face-to-face encounter with the defendant, and she would not be able to relate fully what had happened. The state also introduced the testimony of J's first grade teacher, who testified that J would not be comfortable testifying in the defendant's presence. The defendant did not present any evidence at the pretrial hearing,...