State Of Conn. v. Miller

121 Conn.App. 775

998 A.2d 170

STATE of Connecticutv.Gregory Lamont MILLER.

No. 30096.

Appellate Court of Connecticut.

Argued March 16, 2010.

Decided June 15, 2010.

Joseph Visone, special public defender, for the appellant (defendant).

Nancy L. Walker, special deputy assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Herbert E. Carlson, Jr., former supervisory assistant state's attorney, for the appellee (state).

DiPENTIMA, ROBINSON and FRANCIS X. HENNESSY, Js.^*

DiPENTIMA, J.

The defendant, Gregory Lamont Miller, appeals from the judgment of conviction, rendered after a jury trial, of one count of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49(a)(2) and 53a-70(a)(2), one count of risk of injury of a child in violation of General Statutes (Rev. to 2001) § 53-21(a)(1), two counts of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(2) and four counts of risk of injury to a child in violation of General Statutes (Rev. to 2003) § 53-21(a)(2). On appeal, the defendant claims that the trial court improperly (1) admitted into evidence certain out-of-court statements by the victim ¹ and (2) denied the defendant's motion to dismiss for lack of a speedy trial pursuant to General Statutes § 54-82m. We disagree and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In the spring of 2001, the victim was eight years old and resided in an apartment with her mother, siblings and the defendant. On one occasion, the defendant removed the victim's shorts and underwear and attempted to penetrate her anally. The victim did not report this incident to anyone at the time because she was “scared and embarrassed.” The defendant subsequently left the residence, and this caused the victim to feel safe and confident that it would not happen again.

In January, 2003, the defendant returned to the residence. The defendant again sexually assaulted the victim. Specifically, there were instances of oral sex and penile-vaginal intercourse. In March, 2003, the victim told family members and a friend what the defendant had done. The next day, the victim was taken to Connecticut Children's Medical Center. After spending nearly four hours there, the victim was referred to Saint Francis Hospital and Medical Center (Saint Francis Hospital) for subsequent medical treatment.

The operative information set forth ten counts charging the defendant with offenses from 2001 and 2003. Following a trial, the jury returned a guilty verdict with respect to eight of the counts contained in the information.² The court sentenced the defendant to ninety years incarceration. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly admitted into evidence certain out-of-court statements by the victim. Specifically, he contends that testimony of Lisa Murphy-Cipolla, a licensed family therapist, regarding statements made to her by the victim, were admitted into evidence improperly under the medical treatment exception to the rule against hearsay. See Conn.Code Evid. § 8-3(5). The defendant argues that the primary purpose of Murphy-Cipolla's interview with the victim was to obtain information for police officers that supported their application for a search warrant. We conclude that the court properly admitted the testimony pursuant to the medical treatment exception.

The following additional facts are necessary for our resolution of this issue. After initially receiving medical treatment at Connecticut Children's Medical Center, the victim was referred to Saint Francis Hospital. On April 3, 2003, Murphy-Cipolla, an employee of the Aetna Foundation Children's Center, which is located at Saint Francis Hospital, interviewed the victim for approximately fifty minutes. Outside of the presence of the jury, Murphy-Cipolla stated that the victim told her of multiple instances of abuse by the defendant. The victim detailed one incident that occurred in the kitchen of the residence. As a result of this incident, semen was deposited on a chair cushion, and subsequent DNA testing revealed that the defendant was a contributor. Police officers observed Murphy-Cipolla's interview with the defendant behind a one-way mirror. At one point, Murphy-Cipolla consulted with an officer and asked the victim about the kitchen chair cushion.

The defendant objected on the ground that Murphy-Cipolla's testimony regarding the victim's statements to her during the interview constituted inadmissible hearsay. After hearing argument from counsel, the court ruled that the victim's statements to Murphy-Cipolla, while hearsay, fell within the medical treatment exception. Following the court's ruling, the jury returned to the courtroom, and Murphy-Cipolla testified that the victim told her that the defendant had sexually assaulted her. In addition to details about the various assaults, Murphy-Cipolla further testified that the victim stated that the defendant had ejaculated during some of the assaults and that afterward, the victim's vagina was sore and red. Murphy-Cipolla concluded her testimony by indicating that the victim was aware that these incidents would affect her for the rest of her life and that she had to tell someone about them.

As a general rule, hearsay is inadmissible unless an exception from the Code of Evidence, the General Statutes or the rules of practice applies. See Conn.Code Evid. § 8-2; State v. Anderson, 86 Conn.App. 854, 876, 864 A.2d 35, cert. denied, 273 Conn. 924, 871 A.2d 1031 (2005). Section 8-3 of the Connecticut Code of Evidence, which describes the medical treatment exception to the hearsay rule, provides in relevant part: “The following are not excluded by the hearsay rule, even though the declarant is available as a witness ... (5) ... A statement made for purposes of obtaining a medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof, insofar as reasonably pertinent to the medical diagnosis or treatment.” “In other words, the admissibility of out-of-court statements made by a patient to a medical care provider depends on whether the statements were made for the purposes of obtaining medical diagnosis or treatment.... The rationale for excluding from the hearsay rule statements made in furtherance of obtaining treatment is that we presume that such statements are inherently reliable because the patient has an incentive to tell the truth in order to obtain a proper medical diagnosis and treatment.... The term medical encompasses psychological as well as somatic illnesses and conditions.” (Citations omitted; internal quotation marks omitted.) State v. Donald M., 113 Conn.App. 63, 70, 966 A.2d 266, cert. denied 291 Conn. 910, 969 A.2d 174 (2009); see also State v. Cruz, 260 Conn. 1, 7-8, 792 A.2d 823 (2002).

“Our Supreme Court recently enunciated a two part standard of review for claims of evidentiary error. In State v. Saucier, 283 Conn. 207, 926 A.2d 633 (2007) (en banc), the court stated: To the extent a trial court's admission of evidence is based on an interpretation of the [Connecticut] Code of Evidence, our standard of review is plenary. For example, whether a challenged statement properly may be classified as hearsay and whether a hearsay exception properly is identified are legal questions demanding plenary review. They require determinations about which reasonable minds may not differ; there is no judgment call by the trial court.... We review the trial court's decision to admit evidence, if premised on a correct view of the law, however, for an abuse of discretion.” (Internal quotation marks omitted.) State v. Telford, 108 Conn.App. 435, 439, 948 A.2d 350, cert. denied, 289 Conn. 905, 957 A.2d 875 (2008). In order to determine the appropriate standard of review, we must look to the precise nature of the claim raised on appeal. See State v. Saucier, supra, at 217-18, 926 A.2d 633. We first determine the appropriate standard of review by examining the nature of the defendant's claim.

The defendant argues that the primary purpose of the victim's interview with Murphy-Cipolla was to provide information to the observing police officer with the ultimate goal of obtaining a search warrant for the kitchen cushions. A similar claim was raised in State v. Anderson, supra, 86 Conn.App. at 874-75, 864 A.2d 35. In Anderson, we stated: “The key on which the issue of admissibility of the victim's statements turns is the purpose of the examination. The defendant claims the purpose of the examination was investigatory, but the court concluded that it was for treatment.” Id., at 878, 864 A.2d 35. In rejecting the defendant's claim, we observed: “To the extent that the court made its decision on credibility grounds, we yield, as we must, to the court's assessment. See State v. Rollins, 51 Conn.App. 478, 485, 723 A.2d 817 (1999).” State v. Anderson, supra, at 879, 864 A.2d 35. Additionally, we note that in Saucier, our Supreme Court stated that “appellate courts will defer to the trial court's determinations on issues dictated by the exercise of discretion, fact finding, or credibility assessments.” State v. Saucier, supra, 283 Conn. at 219, 926 A.2d 633. Because the purpose of the victim's interview with Murphy-Cipolla is determined on the basis of the credibility of the witnesses, we employ the abuse of discretion standard.

Jean Carlson, the triage nurse at Connecticut Children's Medical Center, testified that the victim was referred to Saint Francis Hospital for subsequent medical treatment. At that time, Connecticut Children's Medical Center was “limited” as to what it could do for the victim. Therefore, patients were referred to Saint Francis Hospital because that was “where abuse cases...