State v. Spigarolo, 13220
| Decision Date | 14 March 1989 |
| Docket Number | No. 13220,13220 |
| Citation | 210 Conn. 359,556 A.2d 112 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. William M. SPIGAROLO. |
John R. Williams, New Haven, for appellant (defendant).
Steven M. Sellers, Asst. State's Atty., with whom, on the brief, were Patrick J. Clifford, Asst. State's Atty., John M. Massameno, former Sr. Appellate Atty., and Eileen McCarthy Geel, Law Student Intern, for appellee (State).
Before PETERS, C.J., and SHEA, GLASS, COVELLO and HULL, JJ.
The defendant, William M. Spigarolo, was charged with several criminal offenses in connection with allegations that he had sexually abused his girlfriend's children, B, a six year old male, and G, a nine year old female, on divers dates between October, 1984, and January 3, 1985. Prior to trial, the state moved to have the minor victims' testimony taken on videotape outside the defendant's physical presence pursuant to General Statutes § 54-86g. 1 On January 6, 1986, the trial court conducted a hearing at which it granted the state's motion. The videotaped testimony of both minor victims thereafter was admitted at the defendant's trial.
The defendant was found guilty by a jury of two counts of sexual assault in the second degree; General Statutes § 53a-71(a)(1); 2 and four counts of risk of injury to a minor. General Statutes § 53-21. 3 On March 3, 1986, the defendant appealed to the Appellate Court from the judgment of guilty rendered on the verdict. After the appeal was transferred to this court pursuant to Practice Book § 4023, we remanded the case and directed the trial court to conduct an evidentiary hearing to determine whether the trial court's use of the videotape procedure under § 54-86g comported with the criteria set forth in State v. Jarzbek, 204 Conn. 683, 529 A.2d 1245 (1987), cert. denied, --- U.S. ----, 108 S.Ct. 1017, 98 L.Ed.2d 982 (1988). After conducting the evidentiary hearing on remand, the trial court, on April 11, 1988, issued a memorandum of decision in which it concluded that the state had satisfied the Jarzbek criteria.
On appeal, the defendant claims that (1) General Statutes § 54-86g unconstitutionally abridged his right to confrontation under both the state and federal constitutions. He also asserts that the trial court: (2) erred on remand in finding that the state had presented sufficient evidence to support the defendant's exclusion from the videotaping session, especially since the court relied on nonexpert opinion evidence in reaching its conclusion; (3) denied the defendant due process by permitting expert testimony at trial on the testimonial credibility of the alleged victims; (4) denied the defendant due process by refusing to require the state to disclose the exact dates or exact nature of the charges alleged against him; (5) denied the defendant his constitutional right to a unanimous verdict; (6) erred in failing to require the testimony of one of the victims to be given under oath; and (7) erred in instructing the jury not to disregard the testimony of one of the state's witnesses solely because of the witness's prior felony convictions. We find no error.
Because the defendant has not challenged the sufficiency of the evidence by which the jury found him guilty, it is unnecessary to provide a detailed account of the facts established at trial. In brief, the jury could reasonably have found that between August and December of 1984, the defendant, often with the assistance of the victims' mother, F, engaged in numerous sexual activities with the victims. These activities took place at an apartment in Hamden, where the victims lived with their mother. The defendant, F's boyfriend, often visited the apartment and spent the night there during that period. The incidents first came to light in October, 1984, when school officials observed that B had been "acting out" in sexually inappropriate behavior. From December, 1984, through August, 1985, the victims disclosed the incidents in a series of interviews with social workers and police, and in discussions with the victims' father and his present wife, with whom the victims were placed in temporary custody in January, 1985. During this period, the disclosures by the victims were at times incomplete and inconsistent, and on one occasion in December, 1985, the victim G recanted previous statements and said that no sexual activity between herself and the defendant had taken place. Both G and B stated at various times that they had been afraid to report the incidents for fear of reprisal from the defendant or their mother. In addition, a medical test performed on G in December, 1984, disclosed the presence of gonorrhea in her throat. Although a subsequent test performed one week later produced a negative result, the state presented testimony tending to show that the latter test result did not invalidate the results of the former test. The videotaped testimony of both B and G, which had been taken prior to trial outside the defendant's physical presence in accordance with the procedures of § 54-86g, was admitted into evidence at the trial.
The defendant first claims that General Statutes § 54-86g unconstitutionally deprived him of his right to face-to-face confrontation with his accusers. Specifically, he asserts that because § 54-86g does not permit the trial court to make an evaluation of the state's need to resort to the statutory procedures, the statute is unconstitutional under State v. Jarzbek, supra. Further, he claims that the United States Supreme Court's recent decision in Coy v. Iowa, --- U.S. ----, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), establishes that the defendant's sixth amendment right to face-to-face confrontation cannot be abridged in the manner permitted by § 54-86g.
Initially, we must address the state's argument that the defendant has waived any claim based on the unconstitutionality of § 54-86g. See State v. Rutan, 194 Conn. 438, 446, 479 A.2d 1209 (1984). The record discloses that defense counsel indicated at trial that he had no objection to the defendant not being present during the children's testimony, but instead argued that § 54-86g was unconstitutional because it required the testimony to be taken outside the presence of the jury without a showing of need. 4 We disagree, however, with the state that the defendant's present claim cannot be reviewed. The defendant's claim generally rests on State v. Jarzbek, supra, and Coy v. Iowa, supra. Both cases, decided after the defendant's trial, articulated the scope of a criminal defendant's right to face-to-face confrontation with his accuser in a manner not readily foreseeable at the time of the trial. Review under the first "exceptional circumstance" of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), is appropriate if a claim newly raised on appeal is based on a "new constitutional right not readily foreseeable" that has arisen between the time of trial and appeal. Because the defendant's claim facially implicates his confrontation rights as articulated in both Jarzbek and Coy, we review its merits.
We disagree with the defendant's characterization that § 54-86g does "not permit" the trial court to conduct an evidentiary hearing to evaluate the state's need to exclude the defendant from the physical presence of the complainants, a procedure constitutionally required under State v. Jarzbek. Recently, in State v. Snook, 210 Conn. 244, 250-51, 555 A.2d 390 (1989), we observed that the relevant portion of § 54-86g states that " We held that Id., 210 Conn. at 251, 555 A.2d 390.
Section 54-86g neither requires nor forbids the trial court to conduct an evidentiary hearing to evaluate the state's need to resort to the statutory procedures. It is true that, once the trial court grants a motion pursuant to § 54-86g, the court must ensure that the "child cannot hear or see the defendant." Before the mandatory exclusion of the defendant from the victims' testimony arises, however, the trial court must exercise its discretion to invoke the statute. As we have indicated, it may do so only if the Jarzbek criteria are satisfied. State v. Snook, supra.
We are not persuaded by the defendant's argument that § 54-86g is unconstitutional in light of Coy v. Iowa, supra. In Coy, the United States Supreme Court invalidated an Iowa statutory procedure permitting at trial the use of a screen that shielded the defendant from the complaining witnesses' view. Id., 108 S.Ct. at 2799. The court held that the statutory presumption that minor victims of sexual abuse experience trauma if required to testify in the presence of the accused, which underlay the Iowa statute, was an insufficient basis for infringing the defendant's right to face-to-face confrontation. Id., at 2803. The court grounded its decision in part on the failure of the trial court to make individualized findings that the particular witnesses needed protection. The court, however, expressly left open the possibility that exceptions to the right to face-to-face confrontation may exist when those exceptions are necessary to further an important public policy. Id.
In State v. Bonello, ...
To continue reading
Request your trial
-
State v. Grenier
... ... Spigarolo, 210 Conn. 359, 376, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989). "The court's decision is not to be ... ...
-
State v. Rios
... ... James , 247 Conn. 662, 679, 725 A.2d 316 (1999) ; State v. Tanzella , 226 Conn. 601, 608, 628 A.2d 973 (1993) ; State v. Spigarolo , 210 Conn. 359, 382, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989) ; see also Practice Book 3613 ("[t]he ... ...
-
State v. Cobb
... ... State v. Spigarolo, 210 Conn. 359, 381, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989); see State v. Morrill, 197 Conn. 507, ... ...
-
State v. Leniart
... ... Ali , supra, at 43233, 660 A.2d 337 ; State v. Borrelli , supra, at 17374, 629 A.2d 1105 ; State v. Spigarolo , 210 Conn. 359, 37879, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989). Accordingly, although the jury is free ... ...
-
Navigating expert reliability: are criminal standards of certainty being left on the dock?
...in the nature of a medical opinion ... than a legal conclusion that a criminal act had occurred"). (78) See, e.g., State v. Spigarolo, 556 A.2d 112, 122-23 (Conn. 1989) (upholding a trial court's decision to allow a social worker to testify that it is not unusual for child abuse victims to ......
-
Chapter 7 Scientific and Forensic Evidence
...1105 (Conn. 1993) (expert allowed to testify as to typical behavior patterns of victims of battered women's syndrome); State v. Spigarolo, 556 A.2d 112 (Conn.), cert. denied, 493 U.S. 933 (1989) (expert allowed to testify that it is not unusual for child sexual abuse victim to give inconsis......
-
Developments in Connecticut Criminal Law: 1988-89
...704-05. 87. 487 U.S. 108S.Ct.2798(1988). 88. Bonello, 210 Conn. at 58-61; see also Coy v. Iowa, 487 U.S. IOSS.Ct.2798,2802-03(1988). 89. 210 Conn. 359, 556 A.2d 112, cert. denied, 558 3288 (Oct. 30,1989). 90. Id. at 367 n.5; see CONN. GEN. STAT. §54-86g (authorizing, in any criminal Prosecu......
-
The whole truth: restoring reality to children's narrative in long-term incest cases.
...Sexton v. State, 529 So. 2d 1041 (Ala. Crim. App. 1988); Rodriguez v. State, 741 P.2d 1200 Alaska Ct. App. 1987); State v. Spigarolo, 556 A.2d 112 (Conn. 1989); Ward v. State, 519 So. 2d 1082 (Fla. Dist. Ct. App. 1988); People v. Beckley, 456 N.W.2d 391 (Mich. 1990); Smith v. State, 688 P.2......