State v. Maguire

Citation78 A.3d 828,310 Conn. 535
Decision Date19 November 2013
Docket NumberNo. 18828.,18828.
CourtSupreme Court of Connecticut
PartiesSTATE of Connecticut v. Michael G. MAGUIRE.

OPINION TEXT STARTS HERE

Richard Emanuel, for the appellant (defendant).

Michele C. Lukban, senior assistant state's attorney, with whom were Sharmese L. Hodge, assistant state's attorney, and, on the brief, Stephen J. Sedensky III, state's attorney, for the appellee (state).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH and VERTEFEUILLE, Js.

PALMER, J.

A jury found the defendant, Michael G. Maguire, guilty of risk of injury to a child, in violation of General Statutes § 53–21(a)(2), and of sexual assault in the fourth degree, in violation of General Statutes § 53a–73a (a)(1)(A). The trial court rendered judgment in accordance with the jury verdict, and the defendant appealed.1 On appeal, the defendant seeks a new trial, claiming that (1) the deputy assistant state's attorney (prosecutor) made certain improper statements during closing arguments and in connection with defense counsel's cross-examination of the key state's witness, (2) the trial court improperly admitted into evidence a video recording and transcript of a forensic interview of the then eight year old female victim 2 under the tender years exception to the hearsay rule, codified at General Statutes § 54–86 l (a)3 and § 8–10 of the 2009 edition of the Connecticut Code of Evidence,4 without first conducting a hearing, as required by those provisions, to determine whether the circumstances surrounding the interview provided particularized guarantees of trustworthiness and that the interview was not conducted in preparation of a legal proceeding, and (3) the trial court improperly permitted the state to adduce certain testimony as substantive evidence of guilt under the tender years hearsay exception because such testimony was admissible solely as constancy of accusation evidence; see Conn.Code Evid. § 6–11(c); 5 and, thus, for the limited purpose of corroborating the victim's testimony. We agree with the defendant's claim of prosecutorial impropriety and, on that basis, reverse the trial court's judgment. With respect to the defendant's remaining claims, which we address because they are likely to arise again at a new trial, we agree with the defendant that the trial court improperly admitted the forensic interview evidence without first conducting a hearing to determine whether the victim's statements during the interview were trustworthy and were not elicited in preparation of a legal proceeding. We further conclude that the trial court properly admittedthe tender years testimony as substantive evidence of guilt.

The state's evidence against the defendant, which the jury reasonably could have credited, may be summarized as follows. The victim's mother, S, met the defendant in 2005, having been introduced by S's girlfriend, G. At the time, the defendant was living in California. In October, 2007, the defendant relocated to Connecticut to be closer to his family. Shortly thereafter, he began dating S's cousin, D. The defendant and D spent a great deal of time socializing with S and G, and both the defendant and D occasionally helped S with her children.

When the defendant arrived in Connecticut in October, 2007, S was in the midst of an acrimonious divorce from the victim's father, F. A stay-at-home mother, S hired the defendant to help her with the victim and the victim's three brothers. In particular, S paid the defendant to care for the children and to act as a buffer between her and F on the days that F would come to pick up the children. The defendant would transition the children from the house to F's car so that S would not have to interact with F. S also hired the defendant to transcribe threatening telephone conversations between her and F that she secretly had recorded for possible use in court. In the conversations, F often threatened S about her relationship with G and what he was willing to do to obtain custody of the children.

On the days that the defendant went to the victim's home to transition the children to F's care, the defendant would play with the children until F arrived. In February, 2008, S and G went to Indonesia for one month, and the defendant and D housesat for S while she was away. Although the children spent that month with F, the school bus would drop them off each afternoon at S's house, where F's housekeeper would meet them and take them back to F's house. The defendant never spent the night at the victim's home when the children were there. In April, 2008, F filed a motion for sole custody of the children because he objected to S's romantic relationship with G. He also filed a motion for an order prohibiting G from spending the night at S's house. From February to June, 2008, the defendant and D lived at G's house because G spent most of her nights at S's house.

On June 25, 2008, the victim was playing outside with her ten year old brother, B.6 Their adult cousin, C, who recently had moved in with the family, was babysitting for them while S was out. While playing, the victim told B that, a few weeks earlier, the defendant had placed his hand inside her underwear and then smelled his fingers. Upon learning about this incident, B ran into the house to tell C what the victim had told him. The victim ran after B to stop him from telling C but was unable to catch B before he told C. After speaking to B, C then spoke to the victim, who confirmed that B's account of what the victim had told him was accurate and truthful. The victim grew very upset when C told her that he was going to inform S what the victim had told B about the defendant. When S returned home later that evening, C informed her about the victim's allegations. The next morning, S called a family therapist that she and F had been seeing and scheduled an emergency session. S and F met with the therapist later that day to discuss the victim's allegations against the defendant. As a mandatory reporter, the therapist reported the allegations to the Department of Children and Families (department), which, in turn, forwarded the information to the Redding Police Department. Later that afternoon, S and F went to the Redding police station to file a formal complaint against the defendant. While there, they spoke with Officer Anthony Signore. After taking their statement, Signore contacted the Danbury Regional Child Advocacy Center (child advocacy center) to schedule a forensic interview of the victim by a multidisciplinary investigative team (MIT). An MIT consists of mental health and law enforcement professionals, as well as department employees, all of whom work collaboratively to investigate and treat cases of reported sexual abuse.

On July 1, 2008, Donna Meyer, the director of the MIT program at the child advocacy center, conducted a forensic interview of the victim while Signore and a department caseworker watched from behind two-way glass that was tinted to preventthe victim from seeing them. During the interview, which was video recorded and transcribed for subsequent investigative and trial use, Meyer asked the victim whether anyone ever had tried to touch her on her “private.” She responded that the defendant had touched her private once. Meyer asked the victim to tell her everything that she remembered about the incident, beginning with where she was when it happened. The victim responded that the defendant had put his hand inside her pants on one occasion while the two of them were sitting on the couch in the television room at S's house. Meyer asked the victim whether the defendant had wanted her to do anything to his body. She responded, “I think he pulled out this thing and then it was poking out of his pants.” Meyer then asked the victim, [s]o you saw his private?” The victim responded in the affirmative.

When Meyer asked the victim to demonstrate on an anatomically correct doll what the defendant had done to her, the victim put her hand inside the underwear of the doll and moved her hand around. Later, when Meyer asked at what point the defendant had shown her his “private,” the victim responded, “well ... I didn't see it.” When asked whether the defendant had tried “to get [her] to touch his private or do anything to [him],” the victim responded that he had not. When Meyer asked the victim whether the defendant had done “anything to his private,” she responded that he had not. When asked whether the defendant had touched her on the inside or outside of her private, the victim responded that she did not know. The victim also told Meyer that her younger brother was in the room playing the drums when the incident occurred but that she did not think that he saw it.

After the forensic interview, Signore went to the defendant's home to inform him of the victim's allegations and to obtain a statement from him. According to Signore, the defendant seemed shocked by the allegations and denied ever touching any of S's children inappropriately, including the victim. Later that same day, the defendant called Signore and told him that there must have been some misunderstanding, that S's children were always jumping on him and that he thought that the victim had a crush on him, which might explain her statements about him. Signore himself did not interview the victim because it was department policy for the MIT to interview alleged victims of child abuse. Shortly after the forensic interview, the victim's parents reconciled.

The defendant was charged with one count of attempt to commit sexual assault in the first degree, one count of sexual assault in the fourth degree, and two counts of risk of injury to a child, one based on sexual contact and the other based on an act likely to impair the health and morals of a child. At the defendant's trial, a video recording and transcript of the forensic interview of the victim, as well as B's and C's testimony relating the victim's statements to them about the defendant's...

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