State v. Mark R.*

• Decision Date: 19 April 2011
• Docket Number: No. 18593.,18593.
• Citation: 17 A.3d 1,300 Conn. 590
• Parties: STATE of Connecticutv.MARK R.*
• Court: Connecticut Supreme Court

300 Conn. 590

17 A.3d 1

STATE of Connecticut

v.MARK R.*

No. 18593.

Supreme Court of Connecticut.

Argued Dec. 1, 2010.Decided April 19, 2011.

James B. Streeto, assistant public defender, for the appellant (defendant).James M. Ralls, assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Christian Watson, assistant state's attorney, for the appellee (state).ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN and VERTEFEUILLE, Js.ROGERS, C.J.

The defendant, Mark R., appeals ¹ from the judgment of the trial court, rendered after a jury trial, convicting him of one count of risk of injury to a child in violation of General Statutes (Rev. to 2005) § 53–21(a)(2), and one count of sexual assault in the fourth degree in violation of General Statutes (Rev. to 2005) § 53a–73a (a)(1). On appeal, the defendant claims that the trial court improperly: (1) admitted the testimony of his pastor, which the defendant claims was protected by the clergy-penitent privilege; (2) permitted the state to obtain his counseling records and to elicit related testimony, which he claims were protected by the professional counselor-patient privilege; (3) limited the scope of cross-examination of the victim, in violation of his confrontation rights; (4) failed to disclose the victim's educational and counseling records following an in camera review; and (5) instructed the jury as to what constitutes a reasonable doubt. We affirm the judgment of the trial court.

The record reveals the following relevant facts, which the jury reasonably could have found, and procedural history. At the time of the events in question, the victim, a fourteen year old girl, resided in Plainville with her mother, S, her stepfather, the defendant, and her two sisters, H and M, whom her parents had recently adopted from Ethiopia. In the early morning of October 25, 2006, S drove the defendant to the emergency room, where he was treated for welder's flash, a painful eye injury. Later that day, while S napped in her bedroom, the defendant and the children watched a movie together. The defendant and the victim sat together on a couch, while H and M sat in a chair situated between the sofa and the television. The victim dozed off during the movie and awoke during the final credits. Around that time, H left the room, but M remained in her chair watching the television.

As the movie ended the defendant began to touch and speak to the victim in a variety of inappropriate ways. He first began rubbing her bare stomach, an act which he had performed in the past and which the victim initially did not find troubling. He proceeded, however, to place his hand under her shirt and began rubbing her right breast over her bra. When the victim, who felt confused and frightened, did not react externally, the defendant lifted her bra and started rubbing her nipple. He continued touching her bare breast for several minutes, during which he told her that she had “nice breasts.”

The defendant next undid the button and zipper of the victim's skirt and placed his hand underneath. He began rubbing her bare thighs, and then her vaginal area over the crotch of her panties. During the course of a few minutes of such touching, the defendant moaned and commented on the victim's pubic hair. The victim remained frozen with fear.

The defendant subsequently replaced the victim's skirt, moved his hand back to her breast, and asked if he could touch her. At that point, the victim curled into a fetal position, with her knees protecting her chest, and pulled her hand away when the defendant tried to hold it. The defendant responded that he would “just stick to rubbing [the victim's] feet,” and moved to the other side of the sofa. Roughly ten minutes later, the victim got up, went to her room and cried.

When S awoke, the family discussed who would take H and M to church, which the family regularly attended on Wednesday evenings. The victim ultimately announced that she did not feel well, so that she would be able to remain at home with S while the defendant took H and M to church. The victim subsequently went to S's bedroom, curled up on the floor and began crying. After several inquiries from S, the victim told her what the defendant had done.

S immediately called the church. When Associate Pastor Helmut Getto returned her call, she repeated the victim's allegations to him and they agreed that S and the victim would come to the church, where Getto would help them to confront the defendant. Getto testified that during that confrontation, the defendant, after initially denying that he had touched the victim inappropriately and asserting that he and the victim were “just fooling around,” admitted “ ‘Yes, I did.’ ” The following day, the victim's allegations were reported to the department of children and families (department) and to the police.

Following a trial, the jury returned a verdict of guilty on both counts. The trial court rendered judgment in accordance with the verdict and imposed a total effective sentence of twenty years incarceration, execution suspended after seven years, followed by fifteen years probation.² Additional facts and procedural history will be set forth as necessary.

I

We first address the defendant's claim that the trial court improperly denied his motion in limine to preclude Getto's testimony. The defendant contends that any statements he made in Getto's presence were protected by the clergy-penitent privilege, codified at General Statutes § 52–146b,³ and therefore were not subject to disclosure at trial without his consent. The trial court, however, found that inculpatory statements the defendant made in Getto's presence were not privileged because they were neither confidential nor made in the context of seeking religious or spiritual guidance or comfort from the pastor. We affirm the judgment of the trial court.

The following additional facts that the trial court reasonably could have found are relevant to the resolution of this claim. After the victim confided her allegations to S, S immediately telephoned Getto to enlist his assistance in confronting the defendant, who was attending church services at the time. The victim and S walked to the church where, pursuant to S's request, Getto escorted them to his office in a church owned building located next door to the main church. Getto then retrieved the defendant from church services and asked to speak with him. The defendant accompanied Getto to the pastor's office, where he found S and the victim waiting to confront him.

At the time of the meeting, Getto believed that he, the defendant, the victim and S were alone in the building. Other people did routinely use the building, however, and it is impossible to know whether anyone else was nearby during the meeting. Although Getto left the door to his office open, he testified that, had he believed the building to be otherwise occupied, he probably would have closed the door.

Unlike in the family counseling sessions that Getto occasionally runs in his pastoral capacity, Getto did not begin this meeting by identifying the meeting as a family counseling session or explaining that statements made during the meeting would remain confidential. Rather, the meeting began when the defendant asked “ ‘What's going on?’ ” and S responded by asking whether he had touched the victim inappropriately. The meeting proceeded with S repeatedly asking the defendant whether he had touched the victim in certain ways. The defendant initially denied S's accusations, but eventually admitted “ ‘Yes, I did.’ ” At that point, Getto asked the defendant whether he had anything to say to the victim; the defendant offered a curt apology, bringing the meeting to a close.

Getto testified that he purposely did not offer any other advice or suggestions during the meeting. Rather, pursuant to S's request, Getto saw his role in the meeting as being limited to offering S his support and just “sit [ting] there to listen to what the two of them had to say, basically.” Getto did agree with S's suggestion that the defendant not return to the family home that evening. After the meeting, Getto offered to drive the defendant home to pick up a few belongings, and invited the defendant to call him if the defendant wished to discuss the matter further. The following day, Getto informed S that either she or he would need to report the victim's allegations to law enforcement or the department within twenty-four hours, because, as a pastor, he was a mandated child abuse reporter.

At trial, the defendant filed a motion in limine, seeking to exclude Getto's testimony as privileged. The state made an offer of proof and the court, after conducting an in camera hearing, denied the defendant's motion. The defendant challenges that ruling.

As a preliminary matter, we address the proper standard of review. The scope of an evidentiary privilege is a question of law, which we review de novo. Hutchinson v. Farm Family Casualty Ins. Co., 273 Conn. 33, 38, 867 A.2d 1 (2005). The application of the privilege presents a mixed question of law and fact. State v. Ross, 269 Conn. 213, 291, 849 A.2d 648 (2004). “ ‘[T]he scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.’ ” State v. Christian, 267 Conn. 710, 732–33, 841 A.2d 1158 (2004).

The clergy-penitent privilege did not exist at common law, and is a creature of statute. Cox v. Miller, 296 F.3d 89, 102 (2d Cir.2002). In Connecticut, the privilege is codified at § 52–146b. In State v. Rizzo, 266 Conn. 171, 283, 833...