State v. Marquis

• Decision Date: 22 July 1997
• Docket Number: No. SC,SC
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Raymond MARQUIS. 15559.

Page 893

699 A.2d 893

241 Conn. 823

STATE of Connecticut v. Raymond MARQUIS.

No. SC 15559.

Supreme Court of Connecticut.

Argued June 5, 1997.

Decided July 22, 1997.

Matthew J. Collins, Manchester, for appellant (defendant).

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

Before CALLAHAN, C.J., and BORDEN, NORCOTT, KATZ and PALMER, JJ.

KATZ, Associate Justice.

The issue in this certified appeal is whether a trial court has the discretion, under State v. Jarzbek, 204 Conn. 683, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S.Ct. 1017, 98 L.Ed.2d 982 (1988), and General Statutes § 54-86g, ¹ to order that a child witness be examined by an expert witness for the defense before deciding whether to grant the state's motion for videotaped testimony pursuant to § 54-86g(a). We conclude that the trial court has the discretion to order such an examination and that the trial court in this case properly exercised that discretion.

The following facts are relevant to this appeal. 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) ² and one count of risk of injury to a child in violation of General Statutes (Rev. to 1991) § 53-21. ³ The alleged victim was the defendant's daughter, R, 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 R's testimony outside the defendant's presence, in accordance with State v. Jarzbek, supra, 204 Conn. 683, 529 A.2d 1245, and § 54-86g. The trial court, Miano, J., heard the motion and, on July 30, 1993, denied it without prejudice.

On February 1, 1994, at a hearing before the trial court, Corrigan, J., over the defendant's objection, the state renewed its motion, asserting that R was unable to testify in the presence of the defendant and that the denial of the state's motion would preclude it from producing her as a witness. At that time, the state indicated that it had no objection to the defendant having his own expert, Albert J. Solnit, a child psychiatrist, examine R. Soon thereafter, the defendant sought a court order authorizing such an examination. The state withdrew its consent for Solnit to examine R and filed a memorandum in opposition to the defendant's motion. The defendant then renewed his objection to a second hearing on the state's motion for videotaped testimony, claiming that the state had no new evidence of R's inability to testify in the presence of the defendant. The trial court ruled that it would allow a new hearing on the motion, based upon its understanding that the court that originally heard the state's motion had denied it without prejudice so that the motion could be reheard by the court conducting the trial. Regarding the defendant's request that Solnit be allowed to examine R, the trial court indicated that such an examination was neither expressly permitted nor prohibited by § 54-86g, but that the rules of practice gave the trial court the "right ... to order discovery and disclosure where it appears to be fair." ⁴ The trial court indicated that it would rule on the defendant's motion after the close of the state's evidence in the Jarzbek hearing.

On February 10, 1994, the state completed its evidence regarding the proposed videotaping of R's testimony and the defendant again requested that the trial court deny the state's motion. The trial court responded that it believed that the state had established a prima facie case for videotaping, but the court also granted the defendant's request to have Solnit examine R so that Solnit might offer his opinion as to the need for videotaped testimony. After a short recess, the state advised the court that neither the state nor R's guardian ad litem wanted R to be examined. The state further indicated that although R's mother had reservations about allowing an examination by Solnit, she was not opposed to it. Despite the opinion of R's mother, the state objected to making R available for an examination by Solnit and requested that the court rule on its pending motion to permit the videotaping of R's testimony. In response to the state's request, the trial court denied the motion. Both parties then moved for dismissal. The trial court dismissed the information and granted the state permission to appeal pursuant to General Statutes § 54-96. ⁵

On appeal to the Appellate Court, the state claimed that the trial court improperly had: (1) determined that the defendant was entitled to have his psychiatric expert examine R before the court could grant the state's motion; and (2) denied the state's motion without exercising its statutory discretion pursuant to § 54-86g. State v. Marquis, 36 Conn.App. 803, 653 A.2d 833 (1995). The Appellate Court declined to review the issues raised by the state, concluding that the record was inadequate for review. Id. That court concluded that the factual and legal bases of the trial court's ruling were unclear and that, in light of the state's failure to request an articulation, it read an ambiguous record to support, rather than to undermine, the judgment. Id., at 804, 653 A.2d 833.

This court granted the state's petition for certification to appeal, limited to the following issue: "Did the Appellate Court properly affirm the trial court's judgment dismissing the information on the ground that it was impossible to ascertain from the record the basis on which the trial court denied the state's motion to videotape the victim's testimony." State v. Marquis, 233 Conn. 902, 657 A.2d 641 (1995). We subsequently reversed the judgment of the Appellate Court as to the sufficiency of the record, concluding that the record was unambiguous and that "a reasonable reading of the record disclose[d] that the trial court refused to permit videotaping of the child solely because the defendant's psychiatrist was not permitted to examine the child." ⁶ State v. Marquis, 235 Conn. 659, 663, 668 A.2d 710 (1995). We then remanded the case to the Appellate Court for its consideration of the merits of the trial court's ruling. Id. On remand, the Appellate Court determined that the trial court had improperly ordered an examination of the child by a defense expert as quid pro quo to its granting of the state's motion for videotaped testimony pursuant to § 54-86g, and had failed to exercise its discretion under State v. Jarzbek, supra, 204 Conn. 683, 529 A.2d 1245, when it denied the state's motion. Consequently, the Appellate Court reversed the judgment of the trial court. State v. Marquis, 42 Conn.App. 186, 200, 679 A.2d 386 (1996).

Subsequently, the defendant filed a petition for certification to appeal, which we granted limited to the following issue: "May a trial court, in exercising its discretion under State v. Jarzbek, [supra, 204 Conn. 683, 529 A.2d 1245], and General Statutes § 54-86g, take into account the fact that the state's motion is supported by expert testimony and, therefore, order the child witness to be examined by the defendant's expert?" State v. Marquis, 239 Conn. 934, 684 A.2d 709 (1996). We conclude that because the Appellate Court misinterpreted the basis upon which the trial court had granted the defendant's request for the expert examination and denied the state's motion for videotaped testimony, the Appellate Court incorrectly construed the nature of the trial court's actions and its authority to take such actions. Accordingly, we answer the certified question in the affirmative and reverse the judgment of the Appellate Court. Further facts will be provided as necessary.

The defendant argues that the trial court had the authority to order an examination of R by Solnit before deciding whether to grant the state's motion for videotaped testimony. Specifically, the defendant contends that, because the state presented as evidence the testimony of an expert witness regarding the psychological impact the defendant's presence would have on R, fundamental fairness required that the defendant be allowed to have his own expert examine her. The state argues in response that the trial court has no authority, discretionary or otherwise, to order an examination of a child whose videotaped testimony the state seeks to elicit, and that even if the trial court in this case did have discretionary authority, it abused that discretion by failing to exercise it. ⁷

The following facts are necessary for the resolution of this claim. On February 8, 1994, after the state had refused to give its permission for Solnit to interview R, the defendant moved that the court order the examination. The state objected to such an order, claiming that it was beyond the authority of the court. In response to the state's motion for a second Jarzbek hearing, and the defendant's motion for a court-ordered examination, the court stated: "It would be my intention to hear the evidence that [Edward Narus, Assistant State's Attorney] has, and for the purpose of counsel, the court can't agree with everything Mr. Narus has indicated. There's nothing in the statute that either permits or prohibits the defense from having an examination. There is in the practice rules the right of the court to order discovery and disclosure where it appears to be fair. There's nothing in the case law that appears to prevent the defense from having such a discovery, but I think it's obvious to the court at this point that we should go on with the evidence you have for a determination as to what procedure should be followed...." (Emphasis added.)

On February 10, 1994, after the state had presented its evidence in support of videotaping, the defendant once again moved the court to deny the state's motion, claiming that the state had not met its burden of...