State v. Anwar S.

141 Conn.App. 355

61 A.3d 1129

STATE of Connecticut

v.ANWAR S.^*

No. 34635.

Appellate Court of Connecticut.

Argued Dec. 4, 2012.

Decided March 19, 2013.

Elizabeth M. Inkster, assigned counsel, with whom was Desmond Ryan, certified legal intern, for the appellant (defendant).

Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Kevin D. Lawlor, state's attorney, Charles M. Stango, senior assistant state's attorney, and Melanie Cradle, assistant state's attorney, for the appellee (state).

LAVINE, ALVORD and FOTI, Js.

FOTI, J.

The defendant, Anwar S., appeals from the judgment of conviction rendered following a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a–70 (a)(2), one count of risk of injury to a child in violation of General Statutes § 53–21(a)(2) and one count of risk of injury to a child in violation of General Statutes § 53–21(a)(1). The defendant claims that the trial court improperly (1) denied his motion in limine to preclude laboratory results on the ground that they constituted testimonial hearsay, (2) precluded the admission of testimony pursuant to General Statutes § 54–86f regarding the past sexual history of the victim, T, and (3) denied the defendant's motion to strike evidence as irrelevant. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 2008, T was residing in Connecticut along with her mother, her half-brother and her stepfather, the defendant.¹ In or about March, 2008, T's mother found her masturbating and asked T what she was doing. T stated in response, “Mom, don't get mad [at dad], but it only happened one time....” An argument then ensued between T's mother and the defendant regarding whether he had engaged in inappropriate sexual conduct with T. Shortly thereafter, T and her mother moved out of the family residence, while T's half-brother remained with the defendant.

In July, 2008, T returned to the defendant's home to spend time with the defendant and her half-brother. During this visit the defendant sexually assaulted T by engaging in penile-rectal intercourse. After the July, 2008 visit, T relocated with her mother to Kansas and then ultimately relocated to California. Once in California, T told her mother that the defendant had assaulted her not just once, but multiple times during the three preceding years.²

In December, 2008, T and her mother returned to Connecticut, and in January, 2009, T's mother filed a complaint against the defendant with the police. The police department made an appointment for T to be seen at the Yale Child Sexual Abuse Clinic (clinic) for a forensic interview with a social worker. Because T reported information indicating that a medical examination should be performed, the social worker made another appointment for T to receive a medical examination at the clinic.

Janet Murphy, a pediatric nurse practitioner and the associate medical director for the clinic, conducted a medical examination of T. Murphy testified that she is a member of a multidisciplinary team (team), which is a group of professionals from different disciplines involved in the investigation and evaluation of child abuse and sexual abuse. Murphy's role on the team is to conduct medical evaluations of the children at the clinic. Because T reported penile penetration, Murphy obtained specimens from T's genital area to screen for sexually transmitted infections. The vaginal screening was done via a urine specimen, and the rectal screening was completed with a swab. T's urine and rectal test results indicated that she tested positive for chlamydia, a sexually transmitted infection usually acquired from sexual contact.³

Murphy stated that treatment, in a case involving possible sexual abuse, requires a confirmatory test to ensure that the results were not a false positive.⁴ Accordingly, Murphy contacted T's mother, who had already returned to California, to inform her of T's positive test results and to make arrangements for T to be seen at a clinic in California. To facilitate T's tests, Murphy spoke with Fred Bruhn, a physician at a clinic in California, regarding T's positive results. Bruhn then set up an appointment to have T evaluated, during which she underwent confirmatory tests consisting of a vaginal swab for chlamydia culture, a rectal swab for chlamydia culture, and a repeat of the urine tests also conducted in Connecticut. The vaginal swab culture was positive, the rectal swab was negative, and the urine test was positive.⁵ Murphy received a verbal report of these results from the physicians who examined T in California. According to Murphy, “[t]he fact that the [California] tests were positive tells me chlamydia was present in the genital location of her body.”

Before trial, the defendant filed a motion in limine to preclude evidence of the laboratory tests performed on T. The court denied the defendant's motion, holding that the evidence was relevant and that the probative value outweighed the danger of unfair prejudice. In so holding, the court found that “[t]he defendant's objections, as to the testing ... the nature of the testing ... who did the testing, and the protocols ... [go] to the weight of the evidence ... but does not go to the admissibility.” The results of the Yale clinic tests were admitted as business records, and the results of the California tests were admitted through Murphy's testimony. Additional facts will be set forth as necessary.

I

The defendant asserts that the trial court improperly (1) admitted the Yale clinic laboratory results as physical evidence and (2) allowed Murphy to testify as to the results of the Yale and California chlamydia tests. Specifically, the defendant asserts that the results of both tests should have been precluded as testimonial hearsay under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).⁶ We disagree.

We first set forth the applicable standard of review. “Under Crawford v. Washington, supra, at 541 U.S. [at] 68 [124 S.Ct. 1354], the hearsay statements of an unavailable witness that are testimonial in nature may be admitted under the sixth amendment's confrontation clause only if the defendant has had a prior opportunity to cross-examine the declarant. Hearsay statements that are nontestimonial in nature are not governed by the confrontation clause, and their admissibility is governed solely by the rules of evidence.... Thus, the threshold inquiry for purposes of the admissibility of such statements under the confrontation clause is whether they are testimonial in nature. Because this determination is a question of law, our review is plenary....

“In Crawford, the Supreme Court declined to spell out a comprehensive definition of testimonial.... Instead, the court defined a testimonial statement in general terms: A solemn declaration or affirmation made for the purpose of establishing or proving some fact.... The court did note, however, three formulations of th[e] core class of testimonial statements ... [1] ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially ... [2] extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions ... [and 3] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.... State v. Slater [285 Conn. 162, 169–70, 939 A.2d 1105, cert. denied, 553 U.S. 1085, 128 S.Ct. 2885, 171 L.Ed.2d 822 (2008) ].

“[I]n Davis v. Washington [547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) ] the United States Supreme Court elaborated on the third category and applied a primary purpose test to distinguish testimonial from nontestimonial statements given to police officials, holding: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. State v. Smith, 289 Conn. 598, 623, 960 A.2d 993 (2008). Our Supreme Court reaffirmed this precedent by holding that whether a statement is testimonial in nature focuses on the reasonable expectation of the declarant that, under the circumstances, his or her words later could be used for prosecutorial purposes.” (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Brown, 112 Conn.App. 131, 134–36, 961 A.2d 481 (2009); see also State v. Slater, supra, 285 Conn. at 172, 939 A.2d 1105 (“it is clear that much of the Supreme Court's and our own jurisprudence applying Crawford largely has focused on the reasonable expectation of the declarant that, under the circumstances, his or her words later could be used for prosecutorial purposes”).

Addressing the defendant's claims in turn, we first discuss whether the Yale clinic test results were testimonial in nature and, thus, whether their admission violated the defendant's right to confront witnesses against him. The defendant argues that the reports in the present case are analogous to those in Melendez–Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), and Bullcoming v. New Mexico, ––– U.S. ––––, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011), and therefore fall within the core class of testimonial statements. We disagree.

Our inquiry turns on the reasonable expectation of the laboratory...