State v. Spiegelmann

• Decision Date: 10 February 2004
• Docket Number: (AC 22726).
• Citation: 81 Conn. App. 441,840 A.2d 69
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. STEPHEN SPIEGELMANN

81 Conn. App. 441

840 A.2d 69

STATE OF CONNECTICUT v. STEPHEN SPIEGELMANN

(AC 22726).

Appellate Court of Connecticut.

Argued November 18, 2003.

Officially released February 10, 2004.

Flynn, Bishop and McLachlan, Js.

David T. Grudberg, for the appellant (defendant).

Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Maxine V. Wilensky, senior assistant state's attorney, for the appellee (state).

Opinion

FLYNN, J.

The defendant, Stephen Spiegelmann, appeals from the judgment of conviction, rendered after a jury trial, of three counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), two counts of risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21 (1), one count of risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21 (2), and one count of unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a). The defendant was acquitted of one count of risk of injury to a child, in violation of § 53-21 (1), which charged the defendant with the photographing of intimate parts of a minor. The trial court sentenced the defendant to a total term of sixty years incarceration, consisting of three consecutive twenty year terms on the sexual assault counts and concurrent terms on the remaining counts.

The defendant argues on appeal that the trial court acted improperly by (1) allowing certain pornographic materials and testimony regarding such materials to be entered into evidence although the victim had not specifically identified them, (2) admitting prejudicial hearsay under the constancy of accusation doctrine, thereby depriving the defendant of a fair trial, and finally (3) permitting prosecutorial misconduct during cross-examination of the defendant and during closing argument, thereby depriving him of a fair trial. We are not persuaded and therefore affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The victim accused the defendant of sexually assaulting her on a regular basis beginning at age four and ending when she was nine years old.¹ After the victim last visited the defendant in August, 1999, her mother noticed that she had a bleeding injury on her arm, apparently caused by fingernails that were dug into her skin. The victim told her mother that the defendant had injured her and had also chased her with a knife. The victim did not reveal any incidents of sexual abuse to her mother at that time. The victim's mother immediately reported these incidents of physical violence to the local police department, which began an investigation into possible physical abuse of the victim by the defendant. The police referred the matter to the department of children and families (department). Subsequently, on September 10, 1999, the victim revealed to Celmira Gonzalez, an investigator for the department, that the defendant had also subjected her to sexual abuse. Gonzalez recommended that the victim be evaluated by the Yale Child Sexual Abuse Clinic and referred the case to the police for investigation of possible sexual abuse. The victim revealed to Florence Freudenthal Mackey at the Yale clinic the details of the alleged sexual abuse that she had suffered at the hands of the defendant, and she was physically examined by Janet Murphy, a nurse practitioner.

Two detectives in the sex crimes unit of the local police department met with the victim on November 10, 1999, and took her sworn statement, in which she disclosed that she had been sexually abused by the defendant.

At trial, the victim testified in graphic detail about both the physical and sexual abuse she repeatedly had endured from the defendant. The victim testified that the defendant touched her "in a way she didn't like," in that he had touched her face, breasts, buttocks and vagina; had touched her with his penis in her vagina, buttocks and mouth; had penetrated her vagina, mouth and rectum with his penis; had stuck his finger in her vagina and rectum; and had placed his tongue inside and outside her vagina and stuck his tongue in her mouth "and moved it around." The victim also testified that the defendant forced her to sleep in the same bed with him when she spent the night, that he would rub his penis on her chest until he ejaculated onto her and would prevent her from leaving the bed to clean herself.

The victim also testified that the defendant's bathroom floor usually had "number two" and magazines on it when she would come to visit. It was clear from the victim's testimony that "number two" was used in reference to human excrement. The victim further testified that the defendant would force her to take baths in water in which the defendant had defecated and he would then rub his feces on her. On other occasions, the victim testified, the defendant would defecate in a container and rub his feces on her chest, back and legs.

The victim testified that the defendant had shown her various pornographic materials, including photographs, magazines and videotapes depicting various images of men and women engaging in sexual activity, naked men and women, and naked people with "number two." The victim also testified that the defendant had read her stories that he had printed from the Internet that involved "naked people going to the bathroom." The victim testified that the defendant had threatened to kill her, her mother and her dog if she told anyone about the abuse. When she had tried to stop the defendant, the victim testified, he would inflict harm on her, chase her with a knife or threaten her.

Immediately prior to the defendant's arrest on November 18, 1999, the police executed a search and seizure warrant for his home and found magazines, photographs, sexual fantasy stories from the internet and videotapes in the locations that the victim had specified. Material stored on the defendant's computers was reviewed by the Federal Bureau of Investigation (FBI). Thomas Veivia, an FBI agent, testified at trial that his search revealed approximately 45,000 images of a sexual nature, including images of sexual activity involving bodily fluids such as urine, feces, semen and saliva.

I

We first address the defendant's claim that the court acted improperly in allowing certain evidence to be presented to the jury because the victim had not specifically identified it as something that she had been shown and, therefore, it should have been excluded as more prejudicial than probative. The defendant has specifically challenged only the admission of the "scatological"² fantasy stories that were printed from the Internet and the admission of some e-mail correspondence arising out of Internet chat room discussions in which the defendant participated. These are the only materials admitted into evidence that the victim did not specifically identify as having been shown to her. The defendant clearly objected to the admission of the stories at trial, thereby preserving that issue for appellate review. However, the defendant did not preserve the issue as to the e-mail chats. When the e-mail chats were identified by the defendant and offered into evidence by the state, the court asked if the defendant had any objection, to which his counsel replied: "No objection on this." The defendant therefore failed to raise this evidentiary claim at trial, leaving this issue unpreserved for our review on appeal. See State v. Andresen, 256 Conn. 313, 323-24, 773 A.2d 328 (2001). Unpreserved claims of error may be raised on appeal if the defendant requests review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and meets all of its requirements. The defendant did not seek review under Golding in his principal brief, but rather sought such review in his reply brief in response to the state's anticipatory argument. "The reply brief is not the proper vehicle in which to provide this court with the basis for our review under an Evans-Golding analysis." State v. Jones, 34 Conn. App. 807, 815, 644 A.2d 355, cert. denied, 231 Conn. 909, 648 A.2d 158 (1994). Furthermore, even if the defendant had sought review under Golding, evidentiary claims are not of constitutional magnitude and would thus fail under Golding's second prong. See State v. Hansen, 39 Conn. App. 384, 390, 666 A.2d 421, cert. denied, 235 Conn. 928, 667 A.2d 554 (1995). We therefore decline to review the defendant's unpreserved claim regarding the propriety of the admission of the e-mail chats into evidence.

Regarding the admission of the scatological stories, the defendant argues that they were admitted improperly because the probative value of the stories was substantially outweighed by the prejudice that the admission of the explicit material had on the defendant. The state declared at trial that it was not going to ask the victim specifically to identify the stories it sought to admit. It justified this decision on the basis of a reluctance to "revictimize" her. The state claimed that the stories seized from the defendant's home were representative of the type that the victim claimed that the defendant had read to her and should be admitted on that ground. The court admitted the stories, but rejected the state's "representative" theory of admission, finding instead that the stories were probative of the fact that the defendant had an interest in scatological materials and that this showed his motive or "obsession." The court relied on Boyle v. Johnson, 93 F.3d 180, 184 (5th Cir. 1996), cert. denied, 519 U.S. 1120, 117 S. Ct. 968, 136 L. Ed. 2d 853 (1997), in which evidence of the defendant's sexual obsession was shown by the admittance of certain sexual materials. The court acknowledged that the materials had a propensity to be prejudicial, but noted that the defendant's interest in scatology was probative in that scatology "has a fairly limited band of enthusiasts."...