State v. Merriam, (SC 16715).

• Court: Supreme Court of Connecticut
• Writing for the Court: PALMER, J.
• Citation: 264 Conn. 617,835 A.2d 895
• Parties: STATE OF CONNECTICUT v. ROBERT MERRIAM.
• Docket Number: (SC 16715).
• Decision Date: 15 July 2003

264 Conn. 617
835 A.2d 895

STATE OF CONNECTICUT
v.
ROBERT MERRIAM

(SC 16715).

Supreme Court of Connecticut.

Argued September 23, 2002.

Officially released July 15, 2003.

Sullivan, C. J., and Borden, Katz, Palmer and Vertefeuille, Js.

264 Conn. 620

Moira L. Buckley, deputy assistant public defender, for the appellant (defendant)

Melissa L. Streeto, special deputy assistant state's attorney, with whom, on the brief, were Scott Murphy, state's attorney, and Louis Luba, assistant state's attorney, for the appellee (state).

264 Conn. 621

Opinion

PALMER, J.

A jury found the defendant, Robert Merriam, guilty of sexual assault in the first degree in violation of General Statutes (Rev. to 1987) § 53a-70 (a),¹ sexual assault in the second degree in violation of General Statutes (Rev. to 1987) § 53a-71 (a)(1),² and risk of injury to a child in violation of General Statutes (Rev. to 1987) § 53-21.³ The trial court rendered judgment in

264 Conn. 622

accordance with the jury verdict,⁴ and the defendant appealed,⁵ claiming that the trial court improperly had: (1) denied his motion for a judgment of acquittal on the ground of evidentiary insufficiency; (2) permitted the state to introduce into evidence certain hearsay statements in violation of his rights under the confrontation clause of the sixth amendment to the United States constitution; (3) permitted the state to introduce evidence of certain prior misconduct by the defendant; and (4) failed to investigate adequately his allegations of juror misconduct in violation of his federal and state constitutional rights to a fair trial. We reject the defendant's claims and, accordingly, affirm the judgment of the trial court

The jury reasonably could have found the following facts. In May, 1987, the victim, then a three and one-half year old female, lived in an apartment with her mother, her older sister, her sister's young daughter,⁶ and the defendant. The defendant, who was the boyfriend of the victim's mother, had resided in the apartment since January, 1987. The victim, whose biological father had passed away when she was seven months old, called the defendant, "Daddy." Between January, 1987, and May, 1987, no man other than the defendant resided in the apartment.⁷ Furthermore, the victim's mother occasionally left the victim home alone with the defendant.

Within a few weeks after the defendant had moved into the apartment, the victim began to behave in a

264 Conn. 623

manner that was troubling and unfamiliar to those around her. In particular, within a few weeks after the defendant began living with the victim and her mother, the victim started to exhibit sexual behavior inappropriate for a child her age. The victim's mother noticed that the victim often placed her hands down her pants. When the victim's mother bathed the victim, the victim would "gyrate" while in the bathtub. The victim's sister also noticed that the victim repeatedly touched her genital area. On more than one occasion, the victim's sister observed the victim lying face down on her bed making "up and down" motions with her body. Both the victim's mother and sister noticed that, during this time, the victim's vaginal area was irritated, red and swollen. They also noticed that the victim was very withdrawn, quiet and nervous. Although the victim had been toilet trained before the defendant began living in the apartment, she thereafter began urinating in her bed at night. The victim had begun to suck her thumb so frequently that her thumbnail eventually fell off. Neither the victim's mother nor the victim's sister ever had seen the victim act in this manner before

Employees at the day care center that the victim attended also began to notice that the victim had been behaving strangely. They observed that the victim was extremely withdrawn and often had her hand in her pants. When employees at the day care center would rub the victim's stomach or back to help her relax during nap time, the victim would become "very sensually aroused." In addition, the victim cried after urinating.

On or about May 12, 1987, Ida Yelding, a social worker employed by the day care center, noticed that the victim had her hands in her pants while she was moving her hips in an unusual manner. In Yelding's view, it was as if the victim was approaching some sort of sexual climax. Yelding, who had worked at the day care center for more than thirteen years, never before had witnessed

264 Conn. 624

conduct of this kind by a child. Concerned about the victim's behavior, Yelding approached the victim and asked her what was wrong. The victim responded, "Daddy."

Yelding immediately reported this incident to Carolyn Miranda, the director of child care programs at the day care center. Miranda thereupon went to the victim's classroom, where she observed that the victim was visibly upset. After speaking with Yelding and the victim, Miranda, who, in light of the circumstances, suspected that the victim had been sexually abused, filed a report that same day with the state department of children and youth services (department), what is now the department of children and families. In that report, Miranda revealed, inter alia, that the victim had stated to the teacher that "`Daddy' touched her." Miranda subsequently contacted the victim's mother.

Thereafter, the victim's mother asked the victim what was wrong. The victim responded that "Daddy" had "hurt her." The victim further indicated that the incident had occurred some time during the first two weeks of May, 1987. When the victim's mother confronted the defendant with this information, he denied that he ever had sexually abused the victim. Nevertheless, the victim's mother told the defendant that she intended to notify the police, and, soon thereafter, the defendant, without explanation, vacated the apartment and left the state.

On or about May 21, 1987, the victim's mother brought the victim to William Currao, a pediatrician. Currao performed a physical examination of the victim, including an examination of her genital area. That examination revealed various injuries uncommon for a girl of the victim's age, all of which were consistent with digital or penile penetration of the victim's vagina. In particular,

264 Conn. 625

Currao found that the victim's labia majora⁸ were red and irritated and that her hymen had been torn.

On May 27, 1987, the victim and her mother met with Detective Lawrence Betterini of the New Britain police department. During an interview at the police station, the victim revealed to Betterini that the defendant had touched her vagina with his penis.

Betterini attempted to contact the defendant to speak with him about the allegations of sexual abuse. In particular, Betterini spoke with several of the defendant's family members and tried to contact the defendant at various addresses but was unable to locate him. On June 4, 1987, Betterini obtained an arrest warrant for the defendant. Continued efforts by the police to locate the defendant were unsuccessful. The defendant finally was apprehended by state police in Vermont on September 13, 1997, and, thereafter, was extradited to this state. Additional facts will be set forth as necessary.

I

The defendant first claims that the trial court improperly denied his motion for a judgment of acquittal on the ground that the evidence adduced at trial was insufficient to support his convictions for sexual assault in the first degree, sexual assault in the second degree and risk of injury to a child. The defendant's sole claim of evidentiary insufficiency rests on his contention that the state failed to establish that the defendant had engaged in sexual intercourse with the victim. Specifically, the defendant contends that the state's evidence was inadequate to establish sexual intercourse⁹ because

264 Conn. 626

the state did not prove the element of penetration. We disagree.¹⁰

In support of its charge that the defendant had sexually assaulted the victim, the state adduced the testimony of several witnesses,¹¹ including Miranda, the day care center supervisor. Miranda testified that, as a day care center supervisor, she was statutorily obligated to report to the department all suspected cases of sexual abuse. See General Statutes (Rev. to 1987) § 17-38a.¹²

264 Conn. 627

Miranda testified that, in light of the victim's overtly sexual behavior and the victim's statements to Yelding and Miranda connecting "Daddy" to that conduct, Miranda submitted a written report to the department. That report, which was introduced as a full exhibit at trial, provided in relevant part: "Child has hands in pants more often than not ... says its hurts and has cried after urination. When asked what was wrong when crying, she told [t]eacher `Daddy' touched her.... [Yelding] also talked to child about touching incident [and] child began to shake while talking to her."

The state also presented the testimony of Detective Betterini, who had interviewed the victim during his investigation of the defendant's alleged sexual abuse. According to Betterini, the victim told him that "Daddy touched her buggy" and that "Daddy touched [her] with his buggy ...." Betterini further testified that the victim's mother stated to him that the victim had told her that "[D]addy hurt me" and that "Daddy put his buggy into my buggy."

In addition, Betterini presented the victim with anatomically correct drawings of a preschool age female

264 Conn. 628

and an adult male, and asked her to identify various body parts on the drawings, such as the eyes, nose and mouth. After the victim successfully had identified those body parts, Betterini asked her to circle the areas on the drawings to which she was referring when she used the term "buggy." On the drawing of the female child, the victim circled the vagina. On the drawing of the adult male, the victim circled the penis.¹³ Betterini further testified that, although the victim did not specifically identify...