State v. Abraham

181 Conn.App. 703

187 A.3d 445

STATE of Connecticut

v.Joseph ABRAHAM

AC 38863

Appellate Court of Connecticut.

Argued December 4, 2017

Officially released May 8, 2018

Glenn W. Falk, assigned counsel, with whom, on the brief, was Robert M. Black, legal fellow, for the appellant (defendant).

Kathryn W. Bare, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Chris A. Pelosi, senior assistant state's attorney, for the appellee (state).

Sheldon, Bright and Beach, Js.

BEACH, J.

The defendant, Joseph Abraham, was convicted, after a jury trial, of sexual assault in the second degree in violation of General Statutes § 53a–71(a)(1), risk of injury to a child in violation of General Statutes § 53–21(a)(2), and risk of injury to a child in violation of § 53–21(a)(1).¹ On appeal, the defendant claims that the trial court improperly admitted a DVD recording of the victim's forensic interview. We disagree and affirm the judgment of the trial court.

The following facts, found by the court or undisputed, are relevant to this appeal. On February 27, 2013, the minor victim² reported to a social worker at her school that she had been sexually abused by the defendant, her stepfather.³ The social worker relayed these allegations to the police and the Department of Children and Families (department) and an investigation ensued. The victim's mother arranged for the victim to stay at the house of a family friend for a few days and obtained a temporary restraining order against the defendant. The defendant then left the family home to stay elsewhere, so that the victim could return. Meanwhile, the department also directed the defendant not to stay in the same house as the victim. The department then referred the victim for a forensic interview.

On March 4, 2013, the victim was interviewed by Lisa Murphy–Cipolla, the clinical services coordinator at the Children's Advocacy Center at Saint Francis Hospital and Medical Center. During the interview, the victim revealed that the defendant had "raped her," but she did not provide further detail. After the first interview, Murphy–Cipolla recommended that the victim undergo therapy and a medical examination. Later that month, the department learned that the victim's mother had sought to modify the restraining order and that on one occasion the defendant had picked the victim up from school. Upon a visit to the family home, a department worker found the defendant in a room across the hall from the victim's bedroom; the defendant left the house upon the worker's request. Following this incident, the defendant and the victim's mother went to the ombudsman's office to file a complaint against the department worker. While at the office, they revealed that the victim had accompanied them there and was waiting in the car. Upon learning this, the ombudsman's office contacted the department because of concern that the victim and the defendant had been together.

On April 17, 2013, the department obtained temporary custody of the victim and subsequently placed her with her maternal aunt, who later formally adopted the victim. While staying with her aunt, the victim began to reveal additional information about the sexual abuse she had suffered. The victim's aunt reported this to the department and the victim was referred for another forensic interview. On June 11, 2013, the victim was interviewed a second time by Murphy–Cipolla at the Children's Advocacy Center at Saint Francis Hospital and Medical Center. During this interview, the victim disclosed more extensive sexual abuse, including one instance of sexual intercourse. Murphy–Cipolla recommended continued therapy and a medical examination. Both forensic interviews were video recorded on DVDs and, after each interview, Murphy–Cipolla prepared a report and added it to the victim's medical file at Saint Francis Hospital.

The defendant subsequently was arrested and charged with sexual assault in the second degree, and three counts of risk of injury to a child. At trial, the state sought to introduce into evidence the DVD recording of the second interview, and the defendant objected. The court held a hearing on the admissibility of the DVD, at which the state argued that the interview was admissible pursuant to § 8–3(5) of the Connecticut Code of Evidence —the medical treatment exception to the hearsay rule.⁴ The state presented the testimony of Murphy–Cipolla and other witnesses. Murphy–Cipolla testified that the "primary purpose" of forensic interviews was to "elicit clear and accurate information ... to minimize any additional trauma to the child and to make the appropriate recommendations for mental health and/or a medical exam." She testified further that forensic interviews were conducted upon referrals "primarily from the department ... [but also] from the emergency department, pediatricians, police and, occasionally, a therapist." Finally, Murphy–Cipolla testified that forensic interviews were typically observed from behind a one-way mirror by police and/or department officials. She explained that toward the end of an interview, she typically conferred with the observers to ensure "that everybody has heard the same thing and see if [there are] any additional questions or anything that needs to be clarified." The defendant objected to the admission of the second interview, arguing that it "was geared [toward the] investigation of a criminal case and wasn't for the primary purpose of obtaining medical treatment."

In its oral ruling, the trial court noted that "there is evidence that the [victim's] counseling, [which] she was getting from the social worker at her middle school, was stopped. [The victim's] [m]other tried to put the defendant back on the [list of persons authorized to pick the victim up from school], [the] defendant was in the house on the date of the home visit by the [department] worker, which was subsequent to the issuance of the temporary restraining order. As far as we can tell ... the temporary restraining order that was protecting the [victim] in the case was vacated or dismissed at the mother's insistence. The mother, along with the defendant, subsequent to the April 12, 2013 finding of the defendant hiding in the bedroom upstairs, brought the victim, along with the both of them, to the ombudsman to make a complaint against the social worker. There had been additional disclosures that were made to [the victim's] aunt, now her adopted mother, and while there had been arrangements made for the beginning of counseling at the Klingberg Clinic, it had not begun yet. Under those circumstances, the department ... requested that there be a second forensic interview.

"It is [the] court's opinion and finding that that was primarily for medical purposes, particularly additional counseling, particularly to find out if there had been any additional assaults against [the victim] during the period of time that had elapsed between the initial complaint and the number of contacts that the defendant had with her. Having watched the second DVD, although neither ... Murphy–Cipolla nor Detective [Craig] Browning remembers exactly who asked what questions when there was a break taken, the break that was taken in the forensic interview [on] June 11, 2013, was clearly marked when ... Murphy–Cipolla came back. She had additional questions for the [victim], particularly using the standard anatomical form and asking her about what parts of her body were touched by what parts of [the defendant's] body, asking about positions and asking about addresses and occurrences. That may be medical, but it's also investigatory, and I think in a cautious ruling that part of the DVD will be excluded and not shown to the jury. The first part ... is medical, particularly in the circumstance [where] the defendant had additional contact with the [victim] and where her mental health counseling, as much as she got at [school], had been cancelled by her mother." The court then admitted the DVD of the second interview into evidence but excluded the portion of the interview subsequent to Murphy–Cipolla's discussion with the observers. The defendant thereafter introduced into evidence a section of the DVD of the first interview without objection from the state.

On appeal, the defendant argues that the trial court applied an incorrect standard to determine whether the second DVD was admissible under the medical treatment exception. He claims, however, that even had the court applied the correct standard, the second interview was not admissible pursuant to the medical treatment exception to the hearsay rule. Specifically, the defendant argues that the interview was not reasonably pertinent to medical treatment because it was the victim's second forensic interview and, thus, its purpose was more investigatory and less medical than that of the first interview. Consequently, the defendant claims, any relationship the second interview bore to medical treatment was "merely incidental." In making this argument, the defendant urges this court to consider the rationale behind the medical treatment exception: that the declarant is motivated to tell the truth when seeking medical treatment. If, however, the declarant is simply reporting to an investigator, that motivation evaporates.

The defendant also contends that for reasons of policy, the medical treatment exception should apply only to forensic interviews that "truly are pertinent to medical diagnosis and treatment" and never, barring special circumstances, to successive interviews. He argues that admitting subsequent interviews under the exception would "risk making the very concept of the hearsay rules obsolete" because the state could "repeatedly refer a complaining witness for interviews" until "[it] get[s] a suitably compelling version of the story." Finally, the defendant argues that the trial court's improper admission of the second interview was harmful because it bolstered the victim's...