State v. Bronson

258 Conn. 42

779 A.2d 95

STATE OF CONNECTICUT v. JOHN BRONSON, SR.

(SC 16273)

Supreme Court of Connecticut.

Argued March 23, 2001.

Officially released September 11, 2001.

Sullivan, C. J., and Borden, Norcott, Palmer and Ronan, JS. Susan M. Hankins, assistant public defender, with whom, on the brief, were Thomas West and David DeRosa, certified legal interns, for the appellant (defendant).

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

Opinion

SULLIVAN, C. J.

The defendant, John Bronson, Sr., was convicted by a jury of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A),¹ and risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53-21.² He was sentenced to serve a total effective sentence of thirty months. The dispositive issue is whether the defendant was entitled to a court-appointed expert's examination of the alleged child victim when, during the child's testimony, her ability to testify reliably in the presence of the defendant suddenly came into question. We conclude that, under the circumstances of this case, the defendant was entitled to such an examination. Accordingly, we reverse the judgment of conviction.

The defendant appealed from the judgment of conviction to the Appellate Court, which affirmed the judgment of the trial court. State v. Bronson, 55 Conn. App. 717, 740 A.2d 458 (1999). We granted the defendant's petition for certification to appeal from the judgment of the Appellate Court. State v. Bronson, 252 Conn. 944, 747 A.2d 523 (2000). On appeal before this court, the defendant claims that the Appellate Court improperly: (1) concluded that the trial court had properly denied the defendant's motion for a continuance in order to prepare for an unexpected hearing on whether to videotape the testimony of the victim pursuant to General Statutes § 54-86g;³ (2) concluded that the trial court had properly denied the defendant's motion for an examination of the victim by a court-appointed expert; (3) affirmed the trial court's denial of the defendant's motion for a mistrial; (4) affirmed the trial court's denial of the defendant's motion to redact portions of the pretrial videotape of the interview of the victim; and (5) concluded that the record was inadequate to review the defendant's claims that the trial court had violated the defendant's rights under Practice Book § 40-13 (d)⁴ or article first, § 8, of the Connecticut constitution and the fifth, sixth and fourteenth amendments to the United States constitution⁵ by precluding the defendant from presenting six character witnesses. We reverse the judgment of the Appellate Court as to the first two issues and, therefore, need not reach the remaining issues.

The opinion of the Appellate Court sets forth the relevant facts. "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." State v. Bronson, supra, 55 Conn. App. 719-20. Additional facts will be set forth as necessary.

We first address the defendant's claim that the Appellate Court improperly upheld the trial court's denial of the defendant's motion for a court-appointed expert's examination of M. The defendant argues that this examination was necessary because M's breakdown on the witness stand was a complete surprise to all parties and was in direct conflict with the state expert's prior assessment of the child's ability to testify reliably. As a result of that assessment, no 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) (evidentiary hearing necessary for state to demonstrate compelling need for excluding defendant from room during videotaping of minor victim's testimony) was held prior to the trial, and M began her testimony in the defendant's presence. The defendant claims that the denial of his request was an abuse of the trial court's discretion. We agree, and we conclude that because the request for expert examination should have been granted, we necessarily are compelled to conclude that the defendant's request for a continuance also was improperly denied.

The following additional facts are pertinent to the defendant's claim. Prior to trial, the state had informed the court and the defendant that videotaping M's testimony would not be necessary. This was determined pursuant to the state's representation that M's treating therapist had assessed that M was emotionally capable of testifying in open court.⁶ On Friday, September 13, 1996, the state called M as its first witness. During direct examination, M was able to testify regarding general subjects, such as her name and birthday, and was able to give information about her school and family. When the prosecutor began to question her about the sexual assault, however, M began to cry, and Linda Heslin, the victim's advocate, came up to the witness stand, picked up the child and left the courtroom.⁷ The court then excused the jury, stating: "Ladies and gentlemen, it's become clear to us that we're not going to be able to resume the testimony at this point...."

When court reconvened, the state moved for a hearing pursuant to State v. Jarzbek, supra, 204 Conn. 683, to determine whether the state would be permitted to videotape the remainder of M's testimony outside the presence of the defendant, pursuant to § 54-86g. Eleven minutes later, the defendant moved for a continuance until the next court session in order to conduct legal research in preparation for this hearing.⁸ The court denied the defendant's motion and held the Jarzbek hearing that same afternoon. At the hearing, defense counsel moved for an expert examination of M. The trial court responded, "I just don't think expert testimony is required based on what's been said here. We've got laypeople testifying. It's based on their observations of the child in the court, and I don't think a further continuance is necessary." As a result of the Jarzbek hearing, M's testimony was videotaped.

I

The defendant claims that the trial court abused its discretion by denying: (1) his request for a continuance; and (2) his request for appointment of an expert to examine M. We conclude that, under the particular facts and circumstances of this case, the appointment of an expert to examine M was required. That conclusion renders it unnecessary for us to consider the denial of the continuance separate from the question of the denial of the appointment of an expert.

Pursuant to § 54-86g, the trial court is afforded the discretion necessary to grant a motion to have a child victim testify outside of the presence of the defendant. "The [ability] of a witness [to testify reliably] is a matter peculiarly within the discretion of the trial court and its ruling will be disturbed only in a clear case of abuse or of some error in law." (Internal quotation marks omitted.) State v. Marquis, 241 Conn. 823, 836, 699 A.2d 893 (1997).

In the exercise of this discretion, the trial court must conduct an assessment of the victim's reliability as a witness pursuant to the test set forth in Jarzbek. "We... mandate a case-by-case analysis, whereby a trial court must balance the individual defendant's right of confrontation against the interest of the state in obtaining reliable testimony from the particular minor victim in question.... [A] trial court must determine, at an evidentiary hearing, whether the state has demonstrated a compelling need for excluding the defendant from the witness room during the videotaping of a minor victim's testimony. In order to satisfy its burden of proving compelling need, the state must show that the minor victim would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that the trustworthiness of the victim's testimony would be seriously called into question. Furthermore, the state bears the burden of proving such compelling need by clear and convincing evidence." (Citation omitted.) State v. Jarzbek, supra, 204 Conn. 704-705.

To this end, the trial court has the discretion to order an expert's examination or to grant a party's request for such an examination. In State v. Marquis, supra, 241 Conn. 836, we held that a trial court has the discretion to order that a child witness be examined by an expert witness before deciding whether to grant the state's Jarzbek motion. We concluded that the defendant was entitled to have the examination...