State v. Marquis, 13373

• Decision Date: 16 July 1996
• Docket Number: No. 13373,13373
• Parties: STATE of Connecticut v. Raymond MARQUIS.
• Court: Connecticut Court of Appeals

Page 386

679 A.2d 386

42 Conn.App. 186

STATE of Connecticut v. Raymond MARQUIS.

No. 13373.

Appellate Court of Connecticut.

Argued Jan. 25, 1996.

Decided July 16, 1996.

James M. Ralls, Assistant State's Attorney, with whom were Nancy L. Gillespie, former Deputy Assistant State's Attorney, and, on the brief, James E. Thomas, State's Attorney, and Edward R. Narus, Assistant State's Attorney, for appellant (state).

Matthew J. Collins, for appellee (defendant).

Before HEIMAN, SPEAR and FRANCIS X. HENNESSY, JJ.

HEIMAN, Judge.

This matter is before us on remand from our Supreme Court. State v. Marquis, 235 Conn. 659, 668 A.2d 710 (1995). The state originally appealed ¹ to this court from the trial court's dismissal of the case on the application of both the state and the defendant. State v. Marquis, 36 Conn.App. 803, 653 A.2d 833 (1995). Both parties had moved to dismiss the case following the trial court's denial of the state's motion for permission to videotape the testimony of the child victim outside the physical presence of the defendant. Id. On appeal, the state claimed that the trial court improperly (1) determined that the defendant was entitled to have his psychiatric expert examine the victim before the court could grant the state's motion and (2) denied the state's motion without exercising its statutory discretion pursuant to General Statutes § 54-86g. ² We declined to review the issues raised by the state, concluding that it had failed in its obligation to provide us with a record adequate to afford review. Id., at 803, 653 A.2d 833. We concluded that the factual and legal basis of the trial court's ruling was unclear, that the state had failed to seek an articulation and that, in the absence of a request for an articulation, we read an ambiguous record to support rather than to undermine the judgment. Id. at 804, 653 A.2d 833.

Our Supreme Court granted the state's petition for certification. ³ The Supreme Court reversed the judgment of this court, concluding that, in its judgment, "this record is unambiguous. A reasonable reading of the record discloses that the trial court refused to permit videotaping of the child solely because the defendant's psychiatrist was not permitted to examine the child." ⁴ (Emphasis added.) State v. Marquis, supra, 235 Conn. at 663, 668 A.2d 710. We are, of course, bound by the determination of the Supreme Court as to what it concludes the record shows, and we must therefore resolve this case on the basis of the fact that the trial court denied the motion to videotape solely because the defendant's expert was not permitted to examine the child. We now reverse the judgment of the trial court.

The facts necessary to a resolution of this appeal are as follows. The defendant was charged in a long form information with one count of sexual assault in the first degree in violation of General Statutes (Rev. to 1991) § 53a-70(a)(2) ⁵ and one count of risk of injury to a child in violation of General Statutes § 53-21. ⁶ The state charged that the defendant committed the sexual assault by engaging in sexual intercourse with a person under thirteen years of age. The state claimed that the defendant penetrated the victim's vagina with either a part of his body or an object manipulated by him. As to the crime of risk of injury to a child, the state charged that the defendant committed an act that was likely to impair the health or morals of a child under the age of sixteen years. The state asserted that the defendant subjected the victim to contact of her genital area with either a part of his body or with an object manipulated by him. The alleged victim of both crimes was R, the defendant's daughter, who, at the time of the alleged acts, was four years old.

On July 7, 1993, the state filed a motion for permission to videotape the testimony of the victim. ⁷ The trial court heard the motion and, on July 30, 1993, denied it without prejudice and with permission to renew it at the time of trial.

On February 1, 1994, at a hearing before the trial court, the state indicated that it intended to renew its motion. ⁸ The state asserted that the victim would be unable to testify in the presence of the defendant and that, if the state's motion was denied, it would be precluded from producing the complaining witness. The defendant objected to a relitigation of the issue. The trial court determined that the original motion had been neither factually nor legally resolved, and that the motion was properly before it.

On February 10, 1994, at the hearing on the state's motion, the state completed its offer of evidence and the defendant requested that the trial court deny the state's motion. The defendant claimed that the state had failed to sustain its burden of proof. The trial court responded by asking the defendant whether he wanted to offer evidence. The defendant indicated that he wanted to offer evidence but sought a ruling on his request to deny the state's motion. The trial court responded by stating: "The state has produced a prima facie case." As part of its response, however, the trial court also granted a motion that had been previously made by the defendant requesting that the victim be examined by the defendant's psychiatric expert. ⁹

After a short recess, the state advised the court that the state had, at an earlier time, opposed the defendant's motion to have the victim examined by the defendant's expert. In response, the trial court ruled that the defendant was entitled to have the victim examined and that the state had presented a prima facie case as to the necessity of videotaping the victim's testimony. ¹⁰ The state indicated that the victim's guardian ad litem did not want the victim to be examined and that the victim's mother had reservations about such an examination. The state objected to making the victim available for examination and requested that the court rule on its pending motion to permit the videotaping of the victim's testimony. In response to the state's request, the trial court denied the motion. The trial court stated its ruling in the following terms: "On the refusal of the state to permit the child to be examined by the defense psychiatrist, then the court does have to deny the motion for videotaping."

Following the court's ruling, the state indicated that, in its judgment, the victim would not be able to testify in the presence of the defendant. The state asked the court to dismiss the case against the defendant and to permit the state to appeal the trial court's ruling. The court dismissed the case and allowed this appeal. ¹¹

I

The state's first claim is that the trial court improperly determined that the defendant was entitled to have his psychiatric expert examine the victim before the court could grant the state's motion to videotape the victim's testimony. We agree.

In State v. Jarzbek, 204 Conn. 683, 684, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S.Ct. 1017, 98 L.Ed.2d 982 (1988), our Supreme Court addressed the question of "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." ¹² The court concluded that "in criminal prosecutions involving the alleged sexual abuse of children of tender years, the practice of videotaping the testimony of a minor victim outside the physical presence of the defendant is, in appropriate circumstances, constitutionally permissible." Id., at 704, 529 A.2d 1245. The court mandated a "case-by-case analysis, whereby a trial court must balance the individual defendant's right of confrontation against the interest of the state in obtaining reliable testimony from the particular minor victim in question." Id.

The Jarzbek court elaborated on its conclusion in the following manner: "Under the approach we adopt today, a trial court must determine, at an evidentiary hearing, whether the state has demonstrated a compelling need for excluding the defendant from the witness room during the videotaping of a minor victim's testimony. In order to satisfy its burden of proving compelling need, the state must show that the minor victim would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that the trustworthiness of the victim's testimony would be seriously called into question. Furthermore, the state bears the burden of proving such compelling need by clear and convincing evidence.... Although the trial court may consider the well-being of the witness as a significant factor in its analysis, the state cannot prove need simply by demonstrating that the victim would suffer some harm if forced to testify in the presence of the accused. We reiterate that, in light of the constitutional right of confrontation at stake here, the primary focus of the trial court's inquiry must be on the reliability of the minor victim's testimony, not on the injury that the victim may suffer by testifying in the presence of the accused." (Citations omitted; emphasis added.) Id., at 704-05, 529 A.2d 1245.

The Jarzbek court did not hold that a defendant is entitled to have a defense expert conduct a psychological or psychiatric examination of a child victim prior to the videotaping of the victim's testimony. The court noted, however, that "[i]f, after an evidentiary hearing, the trial court finds a compelling need to exclude the defendant from the witness room during the taping of a minor victim's testimony, defense counsel must be afforded a full opportunity, prior to the videotaping session, to meet privately with the victim in order to discuss the events in question." (Emphasis added.) Id., at 705 n. 10, 529 A.2d 1245. Thus, nothing in Jarzbek, including footnote ten of that opinion, supports the trial court's ruling here that a psychiatric examination of the victim by the defendant's expert was a necessary prerequisite to granting the state's motion...