State v. LUIS F.

• Court: Connecticut Court of Appeals
• Writing for the Court: SCHALLER, J.
• Citation: State v. LUIS F., 85 Conn. App. 264, 856 A.2d 522 (Conn. App. 2004)
• Decision Date: 28 September 2004
• Docket Number: (AC 23866).
• Parties: STATE OF CONNECTICUT v. LUIS F.

85 Conn. App. 264

856 A.2d 522

STATE OF CONNECTICUT v. LUIS F.¹

(AC 23866).

Appellate Court of Connecticut.

Argued March 24, 2004.

Officially released September 28, 2004.

Lavery, C. J., and Schaller and Hennessy, Js.

Vicki H. Hutchinson, special public defender, with whom was Brian Cotter, for the appellant (defendant).

Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were Walter D. Flanagan, state's attorney, and David R. Shannon, assistant state's attorney, for the appellee (state).

Opinion

SCHALLER, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (4), risk of injury to a child in violation of General Statutes § 53-21 (a) (2) and risk of injury to a child in violation of General Statutes § 53-21 (a) (1). On appeal the defendant claims that the trial court improperly (1) admitted a videotape of the victim as a prior inconsistent statement and (2) restricted his right to cross-examine the victim. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On September 28, 2001, the victim, who was fourteen years old, and a friend went to the principal's office of their school. The victim was very upset. During a twenty minute conversation, the victim reported that the defendant, who was her biological father, had sexually abused her. The principal contacted the department of social services.

Thereafter, the department of children and families (department) filed a request for an order of temporary custody allowing the victim to be removed from her home, which the court granted. On October 1, 2001, the victim was interviewed by a multidisciplinary investigative team. See General Statutes § 17a-106a. During the interview, which was videotaped, the victim stated that both her grandfather and the defendant had sexually assaulted her. She stated that the defendant inserted his penis into her vagina on two occasions at their Danbury residence. The victim also described inappropriate touching of her breasts and vagina on other occasions. When the victim's mother entered the victim's bedroom during those incidents, the defendant would abruptly stop touching the victim. The victim eventually informed her mother of the defendant's abuse. Although the victim's mother quarreled with the defendant over his behavior, she did not report it to the police. She also did not bring the victim to see a physician nor did she remove her from their home. The victim stated that there was a break in the abuse after her mother confronted the defendant, however, subsequently, an episode occurred where the defendant hid in the bathroom while she showered. The victim reported this episode to her mother. The victim also described a pattern of sexual abuse by the defendant, wherein he would purchase gifts for the victim and, in return, he would require her to have sexual relations with him.

The police interviewed the victim's mother shortly after the victim was interviewed by the multidisciplinary team. She did not appear to be surprised by the victim's allegations. At trial, however, the mother contradicted and recanted many of the statements she made during her interview with the police concerning the defendant's sexual abuse of the victim.

During an interview with the police, the defendant admitted that he had touched the victim's breasts and vagina, but denied that he had sexual intercourse with her. The defendant stated that it was "okay to touch [his] daughter" and that it "is not as bad as sexual intercourse." The defendant admitted that when the victim's mother confronted him, he told her that he would not touch the victim again. He also admitted that subsequent to making that promise, he had hidden in the victim's bedroom and watched her as she undressed.

The victim testified at trial that she had "made everything up." She testified that she was aware that her mother was saddened that the defendant could not live with them, and that she did not want her father to go to jail. Although she acknowledged that the defendant had touched her breasts and vagina when he disciplined her, she stated that he did so because he was angry, having witnessed her "boyfriends touching [her] in [her] privates." She explained that the defendant had touched her in a nonsexual manner that was not inappropriate and that the defendant had asked her how she could permit her boyfriends to "touch [her] down there." She further testified that she had fabricated the story of the defendant's sexual abuse to get out of the house and that she did not recall stating during her interview with the multidisciplinary team that the defendant had sexual intercourse with her.

I

The defendant first claims that the court improperly admitted the videotape of the victim's interview with the multidisciplinary team as a prior inconsistent statement. Specifically, he argues that the videotape should not have been admitted as a prior inconsistent statement for substantive purposes under State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). We disagree.

The following additional facts are necessary for our resolution of the defendant's claim. The state offered the videotape of the interview as a prior inconsistent statement for substantive purposes in response to the victim's testimony on direct examination. On direct examination, the victim stated: "Everything I said [on the videotape] was a lie, because I made everything up because I wanted to get out of my house." The jury was excused and the state offered the videotape into evidence. Thereafter, the videotape was played in the victim's presence. The victim identified her voice on the tape, reiterated that everything she had said about the defendant touching her in an inappropriate manner was false, but acknowledged that the defendant had hidden in the bathroom while she showered. The defendant objected to the introduction of the videotape, arguing that the state could question the victim about her statements made during the interview without admitting it. The court admitted the videotape pursuant to Whelan.

"As a threshold matter, we set forth the standard by which we review the trial court's determinations concerning the [admissibility] of evidence. The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion. . . . We will make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion.. . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did." (Internal quotation marks omitted.) Hayes v. Decker, 263 Conn. 677, 683, 822 A.2d 228 (2003).

Out-of-court statements offered for the truth of the matter asserted are considered hearsay and are generally not admissible. Conn. Code Evid. §§ 8-1, 8-2. Our Supreme Court has held, however, that an out-of-court statement may be used for substantive purposes, that is, for the truth of the matter that it asserts, if it is "given under prescribed circumstances reasonably assuring reliability," and it is inconsistent with the declarant's testimony at trial. State v. Whelan, supra, 200 Conn. 752. The Whelan rule is generally accepted as "allowing the substantive use of prior written inconsistent statements, signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination." Id., 753. The Whelan court recognized that "prior tape recorded statements possess similar indicia of reliability and trustworthiness to allow their substantive admissibility as well." Id., 754 n.9; see also State v. Alvarez, 216 Conn. 301, 313, 579 A.2d 515 (1990) ("[a] prior tape recorded statement . . . is also admissible for substantive purposes"). An important focus of the rule is the reliability of the statement, that is, whether the tape recording is "an accurate rendition of the statement and that the declarant realized it would be relied upon." State v. Whelan, supra, 200 Conn. 754. Notably, although § 8-5 (1) of the Connecticut Code of Evidence lists only written statements, the commentary expressly recognizes that although the "post-Whelan developments were not expressly incorporated into the language of Section 8-5 (1) . . . [the] post-Whelan developments nevertheless are considered to be an integral part of this rule." The commentary also cites State v. Woodson, 227 Conn. 1, 21, 629 A.2d 386 (1993), which dispenses with the declarant's signature as a requirement when the statement is tape recorded.

In the present case, the videotape was properly admitted and provided that the victim had personal knowledge of the events, that she was subject to cross-examination and that the videotape was inconsistent with the victim's testimony at trial. The defendant cannot dispute that the first two requirements are met. The dispositive issue then is whether the victim's statements on the videotape were inconsistent with her testimony at trial.

"In determining whether an inconsistency exists, the testimony of a witness as a whole, or the whole impression or effect of what has been said, must be examined.. . . Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness' prior statement . . . and the same principle governs the case of the forgetful witness. . . . A statement's inconsistency may be determined from the circumstances and is not limited to cases in which diametrically opposed assertions have been made. Thus, inconsistencies may be found in changes in position and they may also be found in denial of recollection.. . . The trial court has considerable discretion to...