State v. Jarzbek, 12868

• Decision Date: 11 August 1987
• Docket Number: No. 12868,12868
• Court: Connecticut Supreme Court
• Parties: , 56 USLW 2162 STATE of Connecticut v. Charles JARZBEK.

Page 1245

529 A.2d 1245

204 Conn. 683, 56 USLW 2162

STATE of Connecticut v. Charles JARZBEK.

No. 12868.

Supreme Court of Connecticut.

Argued June 10, 1987.

Decided Aug. 11, 1987.

M. Hatcher Norris, Glastonbury, for appellant (defendant).

John M. Massameno, Asst. State's Atty., with whom were Roseanne Wagner, Legal Intern, and, on the brief, Maureen Platt, Former Asst. State's Atty., for appellee (state).

PETERS, C.J., and ARTHUR H. HEALEY, SHEA, CALLAHAN and GLASS, JJ.

PETERS, Chief Justice.

The sole issue in this appeal is whether, in a criminal prosecution involving alleged sexual abuse of children, a minor victim may testify through the use of a videotape made outside the physical presence of the defendant. The defendant, Charles Jarzbek, was charged by information with the crimes of risk of injury to or impairing the morals of a child in violation of General Statutes § 53-21 and sexual assault in the fourth degree in violation of General Statutes § 53a-73a. ¹ Prior to trial, the state over the defendant's objection, obtained permission from the trial court to videotape the testimony of the defendant's daughter, one of the alleged victims, outside his physical presence. As requested by the state, this videotaped testimony was admitted into evidence at the defendant's trial. In accordance with a jury verdict finding the defendant guilty on both counts, the trial court rendered a judgment sentencing the defendant to a total effective term of imprisonment for five years, execution suspended, and five years probation. The defendant has appealed from that judgment. We remand for a further evidentiary hearing to give the state the opportunity to establish a compelling need for the videotaping procedure used in this case.

I

Before we address the merits of the defendant's attack on the videotaped evidence taken outside his physical presence, we must first identify the process by which that videotape was sought, the videotaping procedure that the trial court authorized, and the role that the videotaped testimony played at the defendant's trial. A detailed understanding of the record is essential to put the defendant's claims into focus.

The trial court permitted videotaping of the testimony of the alleged victims, T, and her brother, I, in response to a pretrial motion by the state. In support of its motion, the state presented the testimony of two clinical psychologists who opined that the children would be psychologically and emotionally traumatized if they were to be required to testify in open court in the presence of the defendant. The defendant called no witnesses of his own, although he did cross-examine the state's witnesses.

In granting the state's motion, the trial court framed the issue as "whether or not the videotaping of the testimony of these four and five year old witnesses outside the presence of the defendant and the jury in a case alleging sexual molesting by their father violates the defendant's sixth amendment right of confrontation." The court noted the widespread prevalence of child sexual abuse and the "tremendous rise" in the number of such cases in recent years. Relying upon the testimony of the psychologists, and upon the state's assertion that sexually abused children suffer further trauma when forced to testify in the presence of their alleged abusers, the court concluded that the children's testimony could be videotaped outside the physical presence of the defendant without violating his constitutional right of confrontation.

The trial court's order set out specific procedures designed to balance the needs of the children to testify without trauma and the right of the defendant to confront the witnesses against him. ² The court designated those who would be permitted to be present when one of the children testified: the child's mother, the judge, the state's attorney and one defense counsel. The court required the videotaping to take place in a setting comparable to a child psychology laboratory, consisting of a witness room connected by a one-way mirror to a monitoring room. The defendant, in the monitoring room, would not be visible from the witness room, but would be able to observe the witness fully and directly and to hear the testimony as it was given. The court recognized that the defendant was entitled to access to his counsel for the purpose of cross-examining the witness, and ordered that the witness room and the monitoring room be electronically linked by a communications device, such as an ear attachment, that would permit the defendant to communicate instantly with his counsel. To further the defendant's meaningful participation in cross-examination, the court also provided that the defendant should have the assistance of co-counsel while he was observing the videotaping from the monitoring room.

After a competency hearing, only T, the defendant's daughter, was deemed competent to testify at trial. ³ T's testimony was videotaped for trial in accordance with the court's order. Although the court's order would have enabled the defendant to observe the taping in the monitoring room, he chose not to attend the hearing. Defense counsel had a full opportunity to cross-examine T at the hearing at which her testimony was taped.

In the videotape that was introduced into evidence at trial, T described the game of "roll around," which she demonstrated through the use of anatomically correct dolls. After the dolls' clothes had been removed, she placed them together, face to face, demonstrating genital contact. She stated that she had played the game with her father "many times" and that they had always played with their clothes off. She further testified that her buttocks had gotten dirty from the game and that she had had to take a bath "[s]o Grammy [wouldn't] know." She also stated that her father had told her that he would hit her if she told anyone about the game.

The jury could reasonably have found other evidence introduced by the state at trial to be corroborative of T's videotaped testimony. The games that the defendant played with T came to light when J, her eleven year old cousin, observed T, then four years old, and I, her three year old brother, playing in a bedroom of their Middletown home. J observed the two on the bed, the victim on top of her brother, face to face, "rubbing up and down" in an obviously sexual manner. After watching his cousins for about thirty seconds, to confirm that he was not misconstruing their behavior, he asked what they were doing. Although the victim initially tried to "cover up" their activity, she then acknowledged that she and her brother had been playing a secret game that her father had taught her, and that her father had told her to keep the game a secret or else she "would never see him again."

Various adult relatives also testified, at trial, about conversations with T concerning the games she had played with her father. The victim had given essentially the same account, in varying degrees of detail, to her aunt, her mother, her maternal grandmother, and a social worker.

In his appeal, the defendant maintains that the trial court erred in admitting into evidence the videotaped testimony of his daughter because it was videotaped outside his physical presence. In challenging the legality of this videotaping procedure, the defendant has raised only two interconnected claims. Notably, he has considerably narrowed the focus of our inquiry because there are a number of possibly related questions that he has not pursued. The defendant does not challenge the competency of the minor victim, T, to testify. ⁴ Nor does he oppose the use of videotaped testimony per se at criminal trials. To the contrary, he conceded at oral argument that, under appropriate circumstances, and with proper procedural safeguards in place, videotaped testimony is a constitutionally viable alternative to live testimony. The defendant likewise does not argue that the videotaped testimony presented at trial distorted the appearance or demeanor of the minor victim or unduly limited the jury's ability to judge her credibility. Finally, he does not object to the informal setting in which the hearing was conducted and he makes no claim that he was denied a full opportunity to cross-examine the victim at the pretrial videotaping session. Rather, the defendant challenges the admissibility of the videotaped testimony solely on the ground that he was denied his constitutional right to be in the witness room, physically confronting the victim, while she testified. He claims that the trial court's videotaping order violated: (1) his constitutional right to confront the witnesses against him, a right guaranteed both by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution; ⁵ and (2) his right to be present at trial, a right guaranteed by Practice Book § 968 in the absence of a finding of waiver, which the trial court in this case did not make. ⁶ Because the second claim is analytically subsumed under the first, we will address the two claims jointly.

II

We will first address the constitutional origins of the defendant's claims. Relying on the right to confrontation guaranteed to him by the federal and state constitutions; U.S. Const., amends. VI, XIV; Conn. Const., art. I, § 8; the defendant maintains that his right physically to confront the witnesses against him was not satisfied by affording him the opportunity to watch T testify on videotape and to cross-examine her in the setting described above. Absent a compelling need, which has not been established here, he argues that he has a constitutional right to insist on a face-to-face confrontation with adverse witnesses.

It is useful to consider this novel constitutional claim by dividing it into a number of subsidiary issues. We must first decide whether the defendant is entitled to invoke the state constitution, which he did...