State v. William B.
| Citation | 76 Conn.App. 730,822 A.2d 265 |
| Decision Date | 20 May 2003 |
| Docket Number | No. 21592.,21592. |
| Parties | STATE of Connecticut v. WILLIAM B.<SMALL><SUP>1</SUP></SMALL> |
| Court | Appellate Court of Connecticut |
Kent Drager, senior assistant public defender, with whom, on the brief, were Al Cali and Domenic Costello, certified legal interns, for the appellant (defendant).
Denise B. Smoker, assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Brian Preleski, assistant state's attorney, for the appellee (state).
The defendant, William B., appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a)(2), one count of sexual assault in the second degree in violation of General Statutes § 53a-71 (a)(1) and two counts of risk of injury to a child in violation of General Statutes § 532-1. On appeal, the defendant claims that the trial court improperly (1) admitted the testimony of two licensed marriage and family therapists pursuant to the medical diagnosis and treatment exception to the hearsay rule, (2) refused to admit into evidence correspondence to the defendant from the victim's half-sister, (3) denied defense counsel's motion to withdraw, (4) denied the defendant's motion to recuse, (5) denied his motion for a judgment of acquittal on counts two, three and five of the information, and (6) denied him access to the victim's Juvenile Court records concerning neglect proceedings. He also claims (7) that the state violated his constitutional right against double jeopardy. We reverse the defendant's conviction of sexual assault in the second degree and affirm the judgment of the trial court in all other respects.
The jury reasonably could have found the following facts.2 The defendant is the victim's father. From the time she was born in 1982 until 1993, the victim lived with the defendant, her mother and her half-sister in the town of B.3 In 1993, when her parents separated, the victim resided with the defendant in the town of S until she was removed from his care in late 1994 or early 1995. Prior to the separation, the victim's halfsister saw the defendant perform cunnilingus on the victim and witnessed the victim perform fellatio on the defendant. Those acts occurred two or three times a week when the victim's mother was not at home. The victim was not a willing participant in that sexual activity, and the defendant gave her money, candy or cigarettes so that she would not tell anyone.
Subsequent to the defendant's divorce from his wife, a male acquaintance of the defendant visited him and the victim in their home in the town of S. He participated in a game invented by the defendant called "naked hideand-seek." The defendant's game was played by turning out the lights and hiding. The person who was found had to remove an article of clothing. The game ended when everyone was naked. The defendant encouraged his acquaintance to touch the victim sexually. According to the acquaintance, he subsequently was convicted of sexual assault in the first degree for acts he perpetrated on the victim when he was with the defendant and the victim.
During the time the victim was living with the defendant in the town of S, the victim's school friends visited their home every day. In 1994, one of the school friends observed the defendant make frequent sexual gestures and comments to the victim. She saw the defendant gesture with his tongue as if performing oral sex and saw him touch the victim's buttocks. She was present when the defendant dared the victim to remove her shirt in front of him, which the victim did. On one occasion, the defendant pretended to go into the shower, but instead jumped naked in front of the school friend, the victim and another girl. Sometime in late 1994, the victim's school friend told her mother, and then the police, what she had observed. The police conducted an investigation as a result of the school friend's report. Shortly after the school friend made her report, the victim was removed from the defendant's care by agents of the department of children and families, who instituted neglect proceedings against the defendant.
In May, 1998, agents of the department of children and families referred the victim to the Children's Home of Cromwell (home), a residential treatment center for children who have encountered severe emotional abuse and are in need of therapy. The victim was placed in the home as a result of her self-injurious behavior, suicidal ideation, aggressiveness, obsession with death and dying, and attempted suicide. During the course of her treatment at the home, the victim revealed to her therapists that the defendant had sexually abused her.
In April, 1999, Michael Shanley, a police detective, interviewed the defendant about the victim's allegations of sexual abuse. In response to questions as to whether he had had sexual relations with his daughter, the defendant responded, "I don't remember." The defendant was arrested soon thereafter and charged with the crimes of which he has been convicted.
The defendant was tried pursuant to a substitute long form information dated September 18, 2000. The five counts of the information alleged in part as follows: In count one, that at the town of B on divers dates between 1990 and 1994, as a continuing course of conduct, the defendant engaged in sexual intercourse with the victim, who was younger than thirteen, in violation of § 53a-70 (a)(2); in count two, that at the town of S on divers dates between 1994 and September 4, 1995, as a continuing course of conduct, the defendant engaged in sexual intercourse with the victim, who was younger than thirteen, in violation of § 53a-70 (a)(2); in count three, that at the town of S on divers dates between September 5, 1995, and 1996, as a continuing course of conduct, the defendant engaged in sexual intercourse with the victim, who was thirteen years of age or older but younger than sixteen years of age, in violation of § 53a-71 (a)(1); in count four, that at the town of B on divers dates between 1990 and 1994, as a continuing course of conduct, the defendant did an act likely to impair the health or morals of the victim, a child younger than the age of sixteen years, in violation of § 53-21; and in count five, that at the town of S on divers dates between 1994 and 1996, as a continuing course of conduct, the defendant did an act likely to impair the health or morals of the victim, a child younger than the age of sixteen years, in violation of § 53-21.
Following the jury's verdict, the court sentenced the defendant to forty years in prison. This appeal followed.
The defendant's first claim is that the court improperly admitted the testimony of two licensed marriage and family therapists under the medical treatment and diagnosis exception to the hearsay rule. We disagree.
The following facts are relevant to our resolution of the defendant's claim. At trial, the prosecutor stated his intention to call two employees of the home, Tony Gibson and Asha Patlikh, state licensed marriage and family therapists, who treated the victim at the home. The prosecutor represented that the therapists would testify that during her course of treatment at the home, the victim disclosed the defendant's sexual abuse. The defendant objected to the admission of their testimony, claiming that there was no indication that the victim was at the home for medical treatment or why she was being treated.
The prosecutor proffered further that the therapists would testify as to their qualifications, that they had treated the victim and that during the course of their treatment, she revealed that the defendant had sexually abused her from the time she was four until she was eleven, and described the different acts of sexual favors that he asked of her and the game "naked hide-andseek." Furthermore, the prosecutor proffered that the victim first made the disclosures in August, 1998, during the course of her treatment at the home and that the therapists relied on those statements to provide her with mental health care and treatment.
In addition, during the hearing on the defendant's objection to the therapists' being permitted to testify, Gibson testified that children who are admitted to the home have been given a psychiatric diagnosis. He also testified that the victim was being treated at the home to help her address the issues that had brought her there.4 The court overruled the defendant's objection, and permitted the therapists to testify under the medical diagnosis and treatment exception to the hearsay rule. See Conn. Code Evid. § 8-3 (5).5
On appeal, the defendant claims that the court improperly admitted the testimony of the therapists because (1) they are not medical professionals and were not acting in the chain of medical treatment of the victim, (2) the victim's statements were not made for the purpose of seeking medical treatment and (3) the identity of the alleged perpetrator was not relevant to the purported treatment of the victim because she had been removed from the defendant's home several years before she made the accusations. The defendant claims that not only did the court improperly admit the evidence, but it also denied him his constitutional right to confrontation. None of the defendant's claims with respect to the testimony of the victim's therapists is meritorious.
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