State v. Petterson

Citation17 Conn.App. 174,551 A.2d 763
Decision Date13 December 1988
Docket NumberNo. 6399,6399
CourtConnecticut Court of Appeals
PartiesSTATE of Connecticut v. Robert PETTERSON.

John J. Carta, Jr., with whom, on the brief, was Christopher P. Banks, Essex, for the appellant (defendant).

Julia DiCocco Dewey, Asst. State's Atty., with whom, on the brief, was Michael Dannehy, Asst. State's Atty., for the appellee (state).

Before BORDEN, DALY and RICHARD T. O'CONNELL, JJ.

DALY, Judge.

The defendant appeals from the judgment of conviction, after a jury trial, of sexual assault in the second degree in violation of General Statutes § 53a-71(a)(1) 1 and risk of injury to a child in violation of General Statutes § 53-21. 2 On appeal, the defendant claims that the trial court erred (1) in denying his motion to inspect or permit access to the victim's psychiatric and medical records, (2) in disallowing reputation evidence of the victim's character, (3) in allowing the state to cross-examine the defendant's character witnesses, (4) in instructing the jury on constancy of accusation testimony, and (5) in instructing the jury on the sexual assault charge.

The jury could reasonably have found the following facts. The victim turned sixteen years old on November 19, 1986. The defendant was a close friend of the victim's family for a number of years. The victim's father died in 1980. Shortly thereafter, the defendant began sexually fondling the victim. This abuse continued for approximately two years; thereafter, the defendant began to engage in sexual intercourse with the victim. These assaults continued on a regular basis over the next four years.

Sometime in 1982 or 1983, the victim told her friend, Ruth Cummings, that the defendant was touching her in the "wrong places." Cummings, in turn, told her own mother about the defendant's conduct. Mrs. Cummings then advised the victim's mother about the complaints. When confronted by her mother, the victim denied any such conduct. The defendant also denied any illegal conduct when he was confronted with the accusations by the victim's mother. The victim testified that she did not say anything to her mother about the assaults because she was afraid of the defendant and what he might do to her or her family.

In July, 1986, the victim returned to Connecticut after visiting relatives to find that her mother had moved into the defendant's home. The sexual assaults continued until November 10, 1986. On that date, the victim told her friend, Ella Rollka, that she could not handle the situation with the defendant anymore. Rollka informed a school teacher of the situation and, ultimately, the defendant was arrested. Several witnesses for the state testified that the victim had told them of the assaults. The defendant testified and denied any impropriety.

I

The defendant's first challenge is to the trial court's denial of his motion to inspect or permit access to the victim's psychiatric and medical records. Prior to trial, the defendant subpoenaed psychiatric and medical records of the victim relative to her treatment and hospitalization in three institutions from 1986 until the time of trial. In addition, the defendant requested that the court order a psychiatric evaluation of the victim in the event the records indicated that she was incompetent to testify. After a hearing, at which the victim testified, the trial court denied the motions. The trial court held that the defendant failed to present sufficient evidence to warrant an in camera review of the records. The defendant claims on appeal that the effect of these rulings impaired his constitutional right to confrontation to such an extent that he was denied a fair trial.

"The right to confrontation is fundamental to a fair trial under both the federal and state constitutions.... It is expressly protected by the sixth and fourteenth amendments to the United States constitution ... and by article first, § 8, of the Connecticut constitution." (Citations omitted.) State v. Hufford, 205 Conn. 386, 400-401, 533 A.2d 866 (1987). "The right to confrontation secures to the defendant the opportunity to cross-examine witnesses against him; [Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1109-10, 39 L.Ed.2d 347 (1974) ]; and 'to expose to the jury the facts from which the jurors ... could appropriately draw inferences relating to the reliability of the witness.' " State v. Hufford, supra, at 401, 533 A.2d 866, quoting State v. Gaynor, 182 Conn. 501, 509, 438 A.2d 749 (1980). While the right of cross-examination is not absolute and the trial court may, in its discretion, limit the testimony, the court may not so restrict cross-examination as to impair the defendant's right to confrontation and deny him a fair trial. State v. Hufford, supra, 205 Conn. at 401-402, 533 A.2d 866; State v. Asherman, 193 Conn. 695, 718, 478 A.2d 227 (1987), cert. denied, 470 U.S. 1050, 105 S.Ct. 1749, 84 L.Ed.2d 814 (1985). The question for our review is "whether, in denying the defendant access to the complainant's psychiatric records, the trial court prevented the defendant from pursuing a relevant line of inquiry reasonably calculated to elicit facts upon which the jury might logically have decided either to disbelieve the complainant or to discount or discredit her testimony." State v. Hufford, supra.

The defendant does not claim that the trial court rulings prevented him from learning, through the direct examination of any psychiatric personnel, whether the victim had shown any mental abnormality that might have reflected on the credibility of her accusations. See State v. Pierson, 201 Conn. 211, 224-225, 514 A.2d 724 (1986). Rather, he claims only that the court's denial of access to the psychiatric records impaired his right to confront and cross-examine the victim.

Our case law on the issue of a defendant's right of access to the psychiatric records of the complaining witness is abundant, and the standards set forth in those cases are clear. We therefore turn to State v. Hufford, supra. State v. Esposito, 192 Conn. 166, 471 A.2d 949 (1984), and State v. Storlazzi, 191 Conn. 453, 464 A.2d 829 (1983), for guidance.

When the records sought by the defendant are privileged, 3 the witness' right to privacy must be weighed against the defendant's right to bring to the jury's attention facts affecting the witness' credibility. State v. Hufford, supra, 205 Conn. at 402, 533 A.2d 866; State v. Storlazzi, supra, 191 Conn. at 458, 464 A.2d 829. In State v. Storlazzi, the Supreme Court approved an in camera inspection by the trial judge of the records of the complaining witness for material relevant to the issue of credibility. Id. After such examination, access to the records will be granted when the material is especially probative of the witness' ability to comprehend, know and correctly relate the truth. With respect to the admissibility of such records, however, "access to 'such [records] must be left to the discretion of the trial court which is better able to assess the probative value of such evidence as it relates to the particular case before it'; [State v. Piskorski, 177 Conn. 677, 737, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S.Ct. 283, 62 L.Ed.2d 194 (1979) ]; and to weigh that value against the interest in confidentiality of the records. Whether and to what extent access to the records should be granted to protect the defendant's right of confrontation must be determined on a case by case basis." State v. Storlazzi, supra, 191 Conn. at 459, 464 A.2d 829; State v. Hufford, supra, 205 Conn. at 403, 533 A.2d 866.

In State v. Esposito, supra, the court held that, in order to compel the trial court to inspect psychiatric records for potential impeaching information, the defendant must make a showing that there is reasonable ground to believe that failure to produce the information is likely to impair the defendant's right of confrontation. Id., 192 Conn. at 179, 471 A.2d 949. "Upon such a showing the court may then afford the state an opportunity to secure the consent of the witness for the court to conduct an in camera inspection of the claimed information and, if necessary, to turn over to the defendant any relevant material for the purposes of cross-examination. If the defendant does make such showing and such consent is not forthcoming then the court may be obliged to strike the testimony of the witness. If the consent is limited to an in camera inspection and such inspection, in the opinion of the trial judge, does not disclose relevant material then the resealed record is to be made available for appellate review. If the in camera inspection does reveal relevant material then the witness should be given an opportunity to decide whether to consent to the release of such material to the defendant or to face having her testimony stricken in the event of refusal." Id., at 179-180, 471 A.2d 949.

In this case, we find that the defendant did make the requisite showing under State v. Esposito, supra. During the hearing on the defendant's motions, the victim testified as to her use of drugs and alcohol during the period in which she was assaulted by the defendant, as well as to her hospitalization for alcohol abuse, depression and attempted suicide from the date she disclosed the abuse to the authorities through the date of trial. Absent any knowledge of the contents of the psychiatric records, neither we nor the trial court can determine whether they include relevant impeaching evidence that was not cumulative or contrary to her testimony. We therefore conclude that the trial court should have conducted an in camera inspection of the records to ascertain whether they contained information about the mental condition of the victim that would have been admissible to impeach her testimony, thus affording the defendant the full right of confrontation.

The case must be remanded to the trial judge for the purpose of conducting an in camera...

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