State v. Nguyen, (AC 17107)

• Citation: 52 Conn. App. 85,726 A.2d 119
• Decision Date: 02 March 1999
• Docket Number: (AC 17107)
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. HOA VAN NGUYEN

52 Conn. App. 85

726 A.2d 119

STATE OF CONNECTICUT v. HOA VAN NGUYEN

(AC 17107)

Appellate Court of Connecticut.

Argued November 10, 1998.

Officially released March 2, 1999.

Lavery, Landau and Sullivan, JS.

James E. Swaine, for the appellant (defendant).

Ellen A. Jawitz, deputy assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Edward R. Narus, senior assistant state's attorney, for the appellee (state).

Opinion

SULLIVAN, J.

The defendant, Hoa Van Nguyen, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), and risk of injury to a child in violation of General Statutes § 53-21. The defendant claims that the trial court improperly (1) found a violation of its sequestration order and consequently excluded a defense witness, (2) denied the defendant's motion for an independent medical examination of the victim and (3) failed to instruct the jury on the issue of the credibility of a child witness as requested by the defense. We affirm the judgment of the trial court. A jury reasonably could have found the following facts. The defendant, his wife and the victim's parents jointly purchased and lived together in a single-family home in West Hartford. In 1994, the five year old victim, Q, and her brother went to play in the basement of the house. The defendant was already in the basement and asked the victim's brother to go back upstairs and to lock the basement door behind him.

The defendant then removed Q's shorts and underpants and unfastened his trousers. He forced Q to stimulate his penis manually and then inserted his penis into her vagina. Afterwards, the defendant told Q that he would buy her a toy if she kept secret what had happened. Q went upstairs and told her mother what had occurred.

The West Hartford police arrested the defendant and he was subsequently convicted.

I

The defendant first claims that the trial court improperly determined that the defendant's attorney had violated the court's sequestration order. We disagree.

The following additional facts are necessary to our determination. The trial court granted the state's motion for a sequestration order pursuant to Practice Book § 876, now § 42-36.¹ During the defendant's case-inchief, the defendant's wife testified that Q's parents were physically abusive when disciplining Q and her brother, that they had fabricated the rape charge to gain control of the jointly owned house and that Q had cooperated with her parents out of fear of physical punishment. Immediately following that testimony, the prosecutor overheard part of a closed door discussion in a room outside of the courtroom between the defendant's attorney, the defendant's wife and George Thibodeau, the next defense witness and a friend of the defendant. The prosecutor immediately brought this to the attention of the trial court, claiming that the discussion concerned the testimony just given by the defendant's wife and that it violated the court's sequestration order. The defendant's attorney stated: "I may have asked [the defendant's wife] a question about what she said when she testified, yes. She was upset, and she was inquiring about [whether she had said] the right thing, that sort of thing, but, you know, I responded to that mainly because my thinking was that, well, this witness has testified. You know, it's not really an issue what she says in front of anybody not really thinking about Thibodeau, who was in the corner basically reading the paper." On the basis of these statements, the court concluded that there had been a violation of its order and barred Thibodeau's testimony. The next day the defendant moved the trial court to reconsider its decision. The court declined.

A

The defendant first claims that the trial court improperly found a violation of the sequestration order without first conducting an evidentiary hearing. We do not agree.

"An inquiry into the facts and circumstances of each case is necessary to ascertain whether the purpose of a sequestration order has been thwarted." State v. Scott, 16 Conn. App. 172, 182, 547 A.2d 77, cert. denied, 209 Conn. 821, 551 A.2d 758 (1988). That inquiry, however, need not take the form of a formalized evidentiary hearing. See State v. Brown, 235 Conn. 502, 526, 668 A.2d 1288 (1995) (en banc) (trial court must conduct some type of inquiry into allegations of jury misconduct, but form and scope rest within court's sound discretion); State v. Haye, 214 Conn. 476, 482-83, 572 A.2d 974 (1990) (representations of counsel may suffice to support good cause finding for continuance of statutory probable cause hearing). There are instances "in which a trial court will rightfully be persuaded, solely on the basis of the allegations before it and the preliminary inquiry of counsel on the record." State v. Brown, supra, 528. "To impose a requirement of a factual showing in every case to support representations of counsel concerning such matters would impugn the veracity of counsel and impose a staggering burden of time and effort on our already overburdened court system. Evidentiary support of counsel's representations may be found necessary by the court only under certain contested circumstances; see State v. Aillon, 202 Conn. 385, 521 A.2d 555 (1987); or where otherwise required by statute, our rules of practice, or the rules of evidence." State v. Haye, supra, 482-83.

In this case, defense counsel represented to the court that he and the defendant's wife had discussed elements of her testimony in Thibodeau's presence. If defense counsel's representations had been at odds with the state's assertions or merely self-serving, we would agree that a more searching inquiry would be required but that is not the case here.² The court was justified in relying upon the statements of the defense attorney in making its decision.

Indeed, defense counsel's statement that "[he] may have asked [the defendant's wife] a question about what she said when she testified [while] Thibodeau ... was in the corner" constitutes a judicial admission. "Judicial admissions are voluntary and knowing concessions of fact by a party or a party's attorney occurring during judicial proceedings." Jones v. Forst, 41 Conn. App. 341, 346, 675 A.2d 922 (1996). A judicial admission "is, in truth, a substitute for evidence, in that it does away with the need for evidence." (Internal quotation marks omitted.) State v. Jones, 50 Conn. App. 338, 352, 718 A.2d 470 (1998). Furthermore, defense counsel's later statements in no way contradict his admissions that he, the defendant's wife and Thibodeau were present in the anteroom and that he and the defendant's wife discussed the testimony she had just given. The trial court properly relied on his judicial admission.

Moreover, the defendant failed to request an evidentiary hearing at trial. He cannot demand a full evidentiary hearing for the first time on appeal. See State v. Brown, supra, 235 Conn. 530; Spicer v. Spicer, 33 Conn. App. 152, 161, 634 A.2d 902 (1993), cert. denied, 228 Conn. 920, 636 A.2d 850 (1994).

We conclude that the trial court acted properly. Even assuming that the trial court had made an improper finding, however, we conclude that Thibodeau's testimony was cumulative, as we will discuss in part I C of this opinion.

B

The defendant next argues that the trial court could not find a violation of its sequestration order because any communication that did take place occurred outside of the courtroom. We find no merit to this argument.

"The primary purpose of a sequestration order is to ensure that the defendant receives a fair trial by preventing witnesses from shaping their testimony to corroborate falsely the testimony of others. State v. Pikul, 150 Conn. 195, 200, 187 A.2d 442 (1962). State v. Crumble, 24 Conn. App. 57, 61, 585 A.2d 1245, cert. denied, 218 Conn. 902, 588 A.2d 1077 (1991)." (Internal quotation marks omitted.) State v. Sherman, 38 Conn. App. 371, 413-14, 662 A.2d 767, cert. denied, 235 Conn. 905, 665 A.2d 905 (1995). Although the language of Practice Book § 876 may seem merely to bar "a sequestered witness from being in the courtroom when he is not testifying"; (internal quotation marks omitted) State v. Falby, 187 Conn. 6, 27, 444 A.2d 213 (1982); we do not follow so rigid an interpretation. Indeed, such an interpretation "would vitiate any sequestration order by exalting form above substance." Id.

Here, defense counsel admitted having discussed the testimony of the defendant's wife in Thibodeau's presence. The defendant had joined the state's motion for a sequestration order pursuant to Practice Book § 876, now § 42-36. Moreover, the defendant was put on notice as to the scope of the order by the court's previous questions to Elizabeth Foran, Q's guardian ad litem. In fact, when the issue of Foran's presence in the courtroom arose, the defendant urged a broad construction of the sequestration order and indicated his understanding that the order was not limited to barring prospective witnesses from the courtroom.³ Therefore, we conclude that the court had reasonable grounds for finding a violation of its order.

C

Finally, the defendant argues that, even if the court properly found a violation of its order, the sanction imposed by the court violated his constitutional right to present a defense. Alternatively, he argues that, if the exclusion of Thibodeau's testimony is not of constitutional magnitude, the trial court nonetheless abused its discretion. We disagree with both of the defendant's assertions.

"The remedy for such a violation [of a sequestration order] rests in the trial court's discretion, guided by a primary concern for the fairness of the trial, not the culpability of the [offender]." (Internal quotation marks omitted.) State v. Sherman, supra, 38 Conn. App. 414. "We acknowledge, however, that, under particular...