State v. Snook

• Citation: 210 Conn. 244,555 A.2d 390
• Decision Date: 07 March 1989
• Docket Number: No. 13218,13218
• Court: Supreme Court of Connecticut
• Parties: STATE of Connecticut v. Rex SNOOK.

Page 390

555 A.2d 390

210 Conn. 244

STATE of Connecticut v. Rex SNOOK.

No. 13218.

Supreme Court of Connecticut.

Argued Dec. 13, 1988.

Decided March 7, 1989.

Donald D. Dakers, Public Defender, for appellant (defendant).

Judith Rossi, Deputy Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and SHEA, GLASS, COVELLO and HULL, JJ.

GLASS, Justice.

The defendant, Rex Snook, was charged in a substitute information with one count of sexual assault in the second degree, in violation of General Statutes § 53a-71(a)(4), ¹ two counts of risk of injury to a minor, in violation of General Statutes § 53-21, ² and one count of sexual assault in the third degree, in violation of General Statutes § 53a-72a(a)(2). ³ After a jury verdict of guilty as charged on all four counts, the trial court sentenced the defendant to incarceration for a total effective sentence of twenty-two and one-half years to twenty-five years. The defendant appeals from the judgment rendered on the verdict. We find no error.

Prior to trial, the state moved to have the testimony of the minor victim, the defendant's eight year old daughter, taken on videotape outside the physical presence of the defendant, pursuant to General Statutes § 54-86g. ⁴ Over the defendant's objection, the trial court granted the state's motion without an evidentiary hearing. At trial, the victim's videotaped testimony was admitted into evidence over the defendant's objection.

The jury could reasonably have found the following facts. The victim was born on January 19, 1978, and lived with her parents in Guilford. On January 10, 1984, the victim disclosed to her mother that the defendant on several occasions had awakened the victim at night, brought her into the bathroom, and performed oral and vaginal intercourse with her. In her videotaped testimony, the victim related two incidents in which the defendant engaged in various sexual activities with her while they had left the house to go for a walk and to fly a kite. The victim testified that on another occasion, the day of her birthday, while her mother was out shopping for a birthday present, the defendant brought her into a closet in their house, removed his pants and her pants, and rubbed her vagina. He then made her sit on his penis. This incident was interrupted when the defendant heard the mother's car door slam. The victim's mother testified that the last incident occurred on the victim's fifth birthday.

In early 1984, the victim substantially repeated the information she had disclosed to her mother to a psychologist, a social worker, and a detective of the Guilford police department, all of whom testified at the trial. The state also presented evidence that for one and one-half to two years after the victim had turned two years old, the victim experienced bed wetting and urine and stool incontinence. The victim was periodically treated by pediatricians, who noted instances of vaginal inflammation, irritation and discharge.

The defendant appealed his conviction, asserting several errors in the trial, including the claim that the trial court erred in granting the state's motion to videotape the victim's testimony under General Statutes § 54-86g without requiring any evidence on whether the victim would be harmed by testifying at the trial before the defendant. On October 2, 1987, we remanded this case to "afford an opportunity to supplement the record at an evidentiary hearing addressing the criteria set forth in State v. Jarzbek, 204 Conn. 683, 704-705 [529 A.2d 1245 (1987), cert. denied, --- U.S. ----, 108 S.Ct. 1017, 98 L.Ed.2d 982 (1988) ]...." At the remand hearing, the state and the defendant were permitted to present evidence. The state was required to demonstrate by clear and convincing evidence 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." Id., at 705, 529 A.2d 1245. On June 6, 1988, the trial court issued a memorandum of decision following the hearing on remand, in which it found "beyond a reasonable doubt" that the victim's fears and anxieties concerning the defendant were so great that the physical presence of the defendant would so intimidate her as seriously to call into question her reliability as a witness.

In his initial and supplemental briefs, the defendant claims that: (1) General Statutes § 54-86g is unconstitutional as written and as applied to him since it permitted the trial court to allow the victim's testimony to be videotaped outside his presence without any evidence of need, and further, that the remand hearing in this case was improper since the state should not have been allowed to "create" a record retroactively on this issue; (2) the trial court erred in allowing the state to add a second count of risk of injury to a minor after the victim's testimony was taken; (3) there was insufficient evidence to convict him of the added risk of injury count; (4) the convictions and subsequent consecutive sentences for the two risk of injury counts, and the convictions and subsequent consecutive sentences for the crimes of sexual assault in the second degree and sexual assault in the third degree, both violated his constitutional rights against double jeopardy; (5) the second degree sexual assault charge for which he was prosecuted, under General Statutes § 53a-71(a)(4), does not apply to sexual intercourse between a parent and his child; (6) the trial court's supplemental instructions pertaining to the risk of injury counts did not cure the overbroad and misleading original instructions; and (7) the trial court's instructions on sexual assault in the second and third degrees erroneously misled the jury to believe that the crimes could be committed by "sexual contact" alone. We find no error.

I

In his supplemental brief, the defendant claims that § 54-86g, as written and as applied, violated his state and federal constitutional rights of confrontation, since it permitted the trial court to grant the state's motion to videotape the minor victim's testimony outside the defendant's physical presence without any evidence demonstrating the need to resort to the videotape procedure. The defendant concedes that he failed to raise the constitutionality of the statute in his original brief, but argues that this claim should be reviewed because he raised it by way of a motion for a new trial subsequent to the order of remand and because the claim implicates fundamental constitutional rights. See State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). He also claims that our order of remand violated his due process rights by permitting the state to "create" a record on the issue of the need to use the videotape procedure of § 54-86g where no prior record existed. See Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). We agree that this claim implicates the fundamental constitutional right of confrontation and is reviewable under State v. Evans, supra. See State v. Jarzbek, supra.

A

General Statutes § 54-86g provides in relevant part that "[i]n any criminal prosecution of an offense involving assault, sexual assault or abuse of a child twelve years of age or younger, the court may ... order that the testimony of the child be taken in a room other than the courtroom.... [If the court so orders,] the court shall ensure that the child cannot see or hear the defendant." (Emphasis added.) In State v. Jarzbek, supra, 204 Conn. at 704-705, 529 A.2d 1245, we held that videotaping the testimony of a minor victim outside the defendant's physical presence is constitutionally permissible only if the state proves by clear and convincing evidence that the defendant's physical presence would seriously call into question the minor's trustworthiness as a witness. Although Jarzbek did not involve a motion made pursuant to § 54-86g, we noted that "the videotaping procedure [the trial court] approved is essentially the same procedure now prescribed by § 54-86g." Id., at 686 n. 2, 529 A.2d 1245.

This court should " 'try, whenever possible, to construe statutes to avoid a constitutional infirmity,' " but may not do so by rewriting the statute or by eschewing its plain language. Seals v. Hickey, 186 Conn. 337, 346, 441 A.2d 604 (1982). Our order of remand in this case reflects our view that the trial court's discretion under § 54-86g to order the taking of the victim's testimony outside the defendant's physical presence is circumscribed by the criteria established in Jarzbek. In applying the Jarzbek criteria to motions made pursuant to § 54-86g, we rewrite nothing in the language of the statute, but identify those conditions under which the trial court constitutionally may exercise its statutory discretion to grant the motion.

In the present case, the trial court, pursuant to our order of remand, conducted an evidentiary hearing to determine whether resort to the videotape procedures of § 54-86g was permissible under Jarzbek. Relying on the testimony of Dr. Ruth Stern, a psychologist testifying for the state, the trial court concluded that the evidence was at least clear and convincing that the defendant's physical presence at the videotaping would seriously have called into question the minor victim's trustworthiness. The defendant, who offered no evidence at the remand hearing, concedes that the state's evidence was sufficient under Jarzbek. In mounting a constitutional claim against § 54-86g as written and applied, however, the defendant does not address how the statute, as applied in accordance with the Jarzbek standards, violates his right to confrontation. Recently, in State v. Bonello, 210 Conn. 51, 554 A.2d 277 (1989), we affirmed the Jarzbek standards as providing sufficient measures to protect the defendant's constitutional right to confrontation. We conclude, therefore, that § 54-86g, as written and as applied...