State v. Bronson

55 Conn. App. 717

740 A.2d 458

STATE OF CONNECTICUT v. JOHN BRONSON, SR.

(AC 16833)

Appellate Court of Connecticut.

Argued April 19, 1999.

Officially released November 16, 1999.

Lavery, Landau and Schaller, Js. Douglas Morabito and Anthony Saraco, certified legal interns, with whom were Susan M. Hankins, assistant public defender, and, on the brief, Thomas West and David DeRosa, certified legal interns, for the appellant (defendant).

Toni M. Smith-Rosario, deputy assistant state's attorney, with whom, on the brief, were Patricia A. Swords, state's attorney, and Elizabeth C. Learning, assistant state's attorney, for the appellee (state).

Opinion

SCHALLER, J.

The defendant, John Bronson, Sr., appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A) and risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53-21. The defendant claims that the trial court improperly (1) denied (a) his motion for a continuance to prepare for a hearing on whether to videotape the testimony of the victim pursuant to General Statutes § 54-86g, (b) granted the state's motion to videotape the victim's testimony, (c) denied his motion for a court-ordered expert examination of the victim and (d) denied his motion for a mistrial, (2) precluded the testimony of defense character witnesses not disclosed prior to trial and (3) denied his motion to redact a portion of a videotaped interview with the victim that was conducted nearly two years before trial. We affirm the judgment of the trial court.

The following facts are relevant to our disposition of this appeal. From September through November, 1994, the defendant's daughter-in-law left her four year old daughter, M, and her one and one-half year old son, A, with the defendant and his wife, the children's grandparents, while she went to work part-time. When the defendant and his wife took care of the children, the children would spend the prior night with them. On or about November 10, 1994, when M's mother came to the grandparents' house to take the children home, the defendant's wife told M's mother that M had wet her pants while playing. M's mother decided to wait until she got home to change M. She gave both A and M baths. While drying M, she noticed that M's vaginal area was red and puffy, and asked what was wrong with her "pee-pee." M responded that she did not know, but when asked if someone had touched her there, M responded, "Yes." When M's mother asked who had touched her, M responded that the defendant had touched her.

Elaine Yordan, a physician, examined M on November 21, 1994. Yordan found that M's vaginal area was normal and noted that her finding was not inconsistent with M's statement. The next day, Diane Edell, program coordinator and interviewer at the child abuse diagnostic center at Saint Francis Hospital and Medical Center, interviewed M. That interview was videotaped. M stated that the defendant had touched her "pee-pee" with his hand while they were lying on a couch. Additional facts will be set forth where necessary.

I

The defendant claims that the trial court improperly (1) denied his motion for a continuance to prepare for a midtestimony hearing pursuant to § 54-86g,¹ (2) granted the state's motion to videotape M's testimony, (3) denied the defendant's motion to have a court-ordered expert examine M and (4) denied his motion for a mistrial. We disagree.

The following additional facts are necessary for our resolution of these claims. The state called M as a witness on Friday morning, September 13, 1996. During direct examination, after answering approximately 100 questions, M broke down on the witness stand and began to cry when asked about the details of the assault.² The court declared a recess. The victim's advocate, Linda Heslin, in the presence of the jury, picked up M and removed her from the courtroom.³ The court later recalled the jury and stated: "Ladies and gentlemen, it has become clear to us that we're not going to be able to resume the testimony at this point, at least not until after lunch." When court resumed that afternoon, the state's attorney made a motion for a hearing pursuant to State v. Jarzbek, 204 Conn. 683, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988), to allow the state to videotape the remainder of M's testimony outside the presence of the defendant pursuant to § 54-86g. The defendant received the state's motion at 1:57 p.m. on Friday afternoon. The defendant requested a continuance until the next court session, the following Tuesday morning, so that he could review the relevant law.⁴ The court denied the defendant's motion and held the hearing required by § 54-86g that afternoon. Additional facts will be set forth where necessary.

A

The defendant claims that the trial court improperly denied his motion for a continuance to prepare for the Jarzbek hearing. We disagree. "Appellate review of a trial court's denial of a motion for a continuance is governed by an abuse of discretion standard that, although not unreviewable, affords the trial court broad discretion in matters of continuances." (Internal quotation marks omitted.) State v. DeCaba, 42 Conn. App. 141, 143, 679 A.2d 35, cert. denied, 239 Conn. 915, 682 A.2d 1008 (1996). It is not appropriate for us to decide whether we, as trial judges, would have reached a different result, but, rather, whether the trial court abused its discretion in denying the continuance.

"In appellate review of matters of continuances, federal and state courts have identified multiple factors that appropriately may enter into the trial court's exercise of its discretion. Although the applicable factors cannot be exhaustively catalogued, they generally fall into two categories. One set of factors focuses on the facts of record before the trial court at the time when it rendered its decision. From this perspective, courts have considered matters such as: the timeliness of the request for continuance; the likely length of the delay; the age and complexity of the case; the granting of other continuances in the past; the impact of delay on the litigants, witnesses, opposing counsel and the court; the perceived legitimacy of the reasons proffered in support of the request; the defendant's personal responsibility for the timing of the request; the likelihood that the denial would substantially impair the defendant's ability to defend himself; the availability of other, adequately equipped and prepared counsel to try the case; and the adequacy of the representation already being afforded to the defendant.... Another set of factors has included, as part of the inquiry into a possible abuse of discretion, a consideration of the prejudice that the defendant actually suffered by reason of the denial of the motion for continuance.... For purposes of

allowing me to present testimony, and I would like a continuance until Tuesday to prepare for this, prepare for the evidence...." assessing actual prejudice, the focus is on the adequacy of the defendant's legal representation subsequent to the trial court's ruling, as distinguished from its likely adequacy as determined by the trial court at the time of its ruling on the motion for continuance." (Citations omitted; emphasis added.) State v. Hamilton, 228 Conn. 234, 240-41, 636 A.2d 760 (1994).

The court heard argument from the state and defense counsel regarding the motion for continuance:

"[Defense Counsel]: I'd ask for a continuance to allow me to address this motion.... I would like a continuance until Tuesday to prepare for this, prepare for evidence, and I may make a motion to have the child examined by an expert. And for those reasons, I would ask the court for a continuance until Tuesday to prepare for the hearing.

* * *

"What I'm saying is this has surprised all of us after two years, and I guess I'm asking for time to prepare for this evidentiary hearing. I think it's only fair to the defendant after the surprise that we've had this morning.

"The Court: It shouldn't affect your ability to proceed with the case. Whether I grant the motion or not, you still have the same rights that you do of confrontation— the right to cross-examine [M] and to question her. The only difference would be, if I grant the motion, that the testimony is taken outside the presence of the defendant, but he can also hear and watch the testimony that's being presented. So, I don't know that there'd be any great prejudice to you from granting this.

"[Defense Counsel]: Well, there's great prejudice in this case because of the fact that we've already had [M] in court, seen by the jury, and now the state wants to take her outside and have the examination done outside. I think this is the worst possible situation that the defense could be in. I think that if this had been done pretrial it would have been even different than it is now. But, for us, it's the worst situation that could possibly happen. And that's not the issue. The issue is to be prepared for this evidentiary hearing, and I'm asking for—it's now Friday afternoon. I guess I'm just asking until the next court session to prepare.

* * *

"[Prosecutor]: I don't see how a lot is going to change from this afternoon to Tuesday morning.

"[Defense Counsel]: Well, a lot would change in terms of my ability to have time to read the case law and to determine what exactly the issues are and what the cases have said....

"[Prosecutor]: Your Honor, I would have no objection to defense counsel having some time to read through the case law.... I could provide a copy to him.

"The Court: I just don't know what a continuance is going to do here. The state does have the burden actually of proving this, [its] request, [its] motion, and it's not based on—It's based on what happened here in the courtroom primarily, which we all were a party to. There are...