State v. Lizotte

Decision Date05 August 1986
Citation517 A.2d 610,200 Conn. 734
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Robert LIZOTTE.

Kevin C. Connors, Special Public Defender, for appellant (defendant).

Judith Rossi, Deputy Asst. State's Atty., with whom, on the brief, were Warren Maxwell, Asst. State's Atty., and James G. Clark, Deputy Asst. State's Atty., for appellee (State).

Before PETERS, C.J., and ARTHUR H. HEALEY, SANTANIELLO, CALLAHAN and MARY R. HENNESSEY, JJ.

SANTANIELLO, Associate Justice.

On November 23, 1983, the defendant, Robert Lizotte, was convicted of sexual assault in the second degree in violation of General Statutes § 53a-71(a)(1), sexual assault in the fourth degree in violation of General Statutes § 53a-73a(a)(1)(A), and risk of injury to a minor in violation of General Statutes § 53-21. He subsequently was sentenced to a total effective prison term of ten years, suspended after six years and five years probation. He claims on appeal that the trial court erred in allowing a battered women's counselor to testify as to certain communications between his wife and the counselor because such communications were privileged against disclosure by Public Acts 1983, No. 83-429, subsequently codified as General Statutes § 52-146k. 1 He also claims that the trial court erred in refusing to allow into evidence various school records relating to the credibility of one of the state's witnesses. We find no error.

The jury could reasonably have found the following facts. On December 18, 1982, the ten year old victim and her mother went to the defendant's home in Hartford. At the time, the defendant resided with his wife, Nicole Lizotte, and their six year old daughter, Lisa, on the first floor of his three family home. The victim's mother left the victim with the Lizottes while she visited a friend. That evening, the defendant attended a small party in the basement apartment, rented by Robert and Lynn Willard. During the party, the victim stayed in the Lizottes' apartment with Lisa Lizotte and Stephen Willard, Robert Willard's younger brother. At some point during the evening, the defendant went upstairs and directed the victim to go into his daughter's bedroom, where he sexually assaulted her. As the assault was taking place, Stephen Willard walked by the bedroom and observed what the defendant was doing to the victim. Later that night, the defendant went into his daughter's bedroom where the victim was sleeping, removed her from bed, and took her into the kitchen, where he again sexually assaulted her.

Sometime after the first incident in the bedroom, Stephen Willard told his sister-in-law, Lynn Willard, and Nicole Lizotte what he had seen. The next day, the victim's mother had a conversation with both Lynn Willard and Nicole Lizotte and, upon returning home with the victim, discussed the incident with her. On January 7, 1983, the victim gave a statement to the Hartford police concerning the defendant's actions on the night in question.

I

The defendant first claims that the trial court erred in admitting the testimony of his wife's caseworker. 2 At trial, the defendant called his wife to testify as an alibi witness. Nicole Lizotte testified that on December 18, 1982, the defendant was out of the house during the early evening and did not return home until 10 p.m. After his return, according to Nicole Lizotte, they went out to dinner, then to a bar, and did not come back to their apartment until late that night. On cross-examination, Nicole Lizotte testified that she had learned about the victim's claim approximately one week after the alleged incident and had discussed the claim only with the victim's mother and Lynn Willard. She further testified that at one time she had been afraid of her husband and that he had physically beaten her. On redirect examination, however, she stated that as of December 18, 1982, she had been getting along well with the defendant and was no longer afraid of him.

In its rebuttal case, the state offered the testimony of a counselor at a crisis intervention support unit to impeach Nicole Lizotte's credibility. Prior to the counselor's testimony, Nicole Lizotte objected to the introduction of the testimony on the ground that any communications made to the counselor were privileged under General Statutes § 52-146k. 3 On voir dire examination, the counselor stated that she had been Nicole Lizotte's caseworker from September, 1982, until the date of the trial. She testified that between September, 1982, and January, 1983, Nicole Lizotte had expressed fear that her husband would physically beat her and had inquired about the possibilities of being placed in a shelter. She further testified that at some point between December 25, 1982, and January 4, 1983, Nicole Lizotte had told her about an incident involving the defendant and the victim. The trial court ruled that the statute did not apply to communications made prior to the statute's effective date, October 1, 1983, and because the statements were made prior to this date, allowed the counselor to testify.

The defendant claims that § 52-146k was applicable at the time of the trial and that the trial court should have refused to allow the counselor to testify. Section 52-146k(b) provides in part that "[a] battered women's counselor or a sexual assault counselor shall not disclose any confidential communications made to such counselor by a victim in any civil or criminal case or proceeding or in any legislative or administrative proceeding unless the victim making the confidential communications waives the privilege...." The defendant reasons that because § 52-146k(b) prohibits a battered women's counselor from disclosing communications, the critical time for determining the applicability of the statute is when the communications are sought to be disclosed, not when the communications are originally made. Because the communications made by Nicole Lizotte were sought to be disclosed at trial, on November 18, 1983, the defendant claims the statute was applicable, and thus should have prevented the counselor from testifying.

We cannot agree with the defendant's interpretation of § 52-146k(b) that the legislative intent was to prohibit the disclosure of protected communications regardless of when they were made. The legislature, in enacting § 52-146k, sought to create a privilege, and in so doing, focused on the communications themselves, not when they were sought to be disclosed. Prior to the statute, communications between a battered women's counselor and a victim were not privileged. As we stated in In re Robert H., 199 Conn. 693, 703, 509 A.2d 475 (1986), "[t]he obvious intent and dominant purpose of this statute is to grant a privilege to confidential communications between a sexual assault counselor or a battered women's counselor and a victim." A close examination of the legislative history supports this view of the statute's purpose. In the House debate over the enactment of § 52-146k, Representative Pauline Kezer stated that "this bill extends the privilege that now exists to psychiatrists, clergy, to very narrowly defined counselors who work in battered [women's] shelters and rape crisis centers.... [T]he bill has been carefully enough drafted, and tightly enough drawn so that we are extending a privilege." (Emphasis added.) 26 H.R. Proc., Pt. 15, 1983 Sess., pp. 5284-85. If the focus of the statute is on the underlying communications and not, as the defendant contends, on the ultimate disclosure of the communications, then the statute only protects communications made after its effective date, October 1, 1983. To exclude communications made prior to this date, would be, in effect, to apply the statute retroactively.

General Statutes § 55-3 states: "No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have a retrospective effect." While we have noted the continued vitality and utility of the principle that procedural statutes will be applied retroactively absent contrary legislative intent; State v. Paradise, 189 Conn. 346, 351, 456 A.2d 305 (1983); we consistently have expressed reluctance to construe statutes retroactively where the statutes affect substantial changes in the law, unless the legislative intent clearly and unequivocally appears otherwise. State v. Paradise, supra, 350-51, 456 A.2d 305; Hunter v. Hunter, 177 Conn. 327, 331, 416 A.2d 1201 (1979); American Masons' Supply Co. v. F.W. Brown Co., 174 Conn. 219, 222-23, 384 A.2d 378 (1978); East Village Associates, Inc. v. Monroe, 173 Conn. 328, 332, 377 A.2d 1092 (1977); State ex rel. Rundbaken v. Watrous, 135 Conn. 638, 648, 68 A.2d 289 (1949). "The test of whether a statute is to apply retroactively, absent an express legislative intent, 'is not a purely mechanical one' and even if it is a procedural statute, which ordinarily will be applied retroactively without a legislative imperative to the contrary, 'it will not be applied retroactively if considerations of good sense and justice dictate that it not be so applied.' ... Carvette v. Marion Power Shovel Co., 157 Conn. 92, 96, 249 A.2d 58 [1968]." (Citations omitted.) American Masons' Supply Co. v. F.W. Brown Co., supra, 174 Conn. at 223, 384 A.2d 378. In Sherry H. v. Probate Court, 177 Conn. 93, 411 A.2d 931 (1979), this court considered whether a statute that forbids the release of information about a genetic parent without that parent's consent applied retroactively to an action in which an adopted person sought the identity of her genetic mother. We reasoned that when a statute effected "a substantial change in the law" and created a completely different scheme, the rule precluding retroactive application applies, even if the statute is characterized as "merely procedural." Id., 101-102, 411 A.2d 931.

In this case, as in Sherry H. v....

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