State v. Claudio C.

11 A.3d 1086

125 Conn.App. 588

STATE of Connecticut

v.CLAUDIO C.¹

No. 30364.

Appellate Court of Connecticut.

Argued Oct. 12, 2010.

Decided Dec. 21, 2010.

Frank P. Cannatelli, for the appellant (defendant).

Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Helen McLennan, senior assistant state's attorney, for the appellee (state).

DiPENTIMA, C.J., and BEAR and FOTI, Js.

FOTI, J.

The defendant, Claudio C., appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the third degree in violation of General Statutes § 53a-72a (a)(1)(A) and two counts of risk of injury to a child in violation of General Statutes § 53-21(a)(2). On appeal, the defendant claims that the trial court improperly (1) admitted into evidence an out-of-court statement of the victim, violating his rights secured under the confrontation clause of the sixth amendment to the United States constitution,² as articulated by the United States Supreme Court inCrawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and (2) concluded that the state did not waive counts four through six of the six count, long form information because the clerk of the court initially only read counts one through three to the jury. We disagree and, accordingly, affirm the judgment of the trial court.

The following procedural history and facts, which the jury reasonably could have found, are relevant to the defendant's appeal. In 2005, the victim was ten years old and attended the fifth grade. She resided principally with her paternal aunt in an apartment that was situated above a store operated by her grandmother and grandfather, the defendant.³ On May 25, 2005, after returninghome from school, the victim stopped at her grandparents' store for something to eat and then proceeded to her aunt's apartment to do her homework. That same day, the victim's father, who was on business out of state, received a call from the defendant's cell phone. The two men had a conversation regarding the location of a checkbook to which the defendant needed access.

At approximately 3:30 p.m., the victim's aunt went into the bedroom where the victim was studying and informed her that she and the victim's grandmother were going out to run an errand. Prior to leaving, the aunt gave the victim her cell phone. Shortly after the two women left, the defendant entered the bedroom. Upon entering the room, the defendant went over to the bed where the victim was sitting and removed her pants and underwear. He then removed his own pants and underwear and proceeded to get on top of the victim, cover her mouth with his hand and "[rub] his private [parts] against [the victim's private area]." ⁴ While the assault was occurring, the victim's father received another telephone call from the defendant's cell phone. This time, however, there was no response when he answered the call or said "hello" multiple times. The victim's father, however, could hear his daughter's voice say, "no grandpa," three times. He also was able to hear the defendant, his father, telling the victim to be quiet. Reacting to what he heard, the victim's father used a coworker's cell phone to attempt a call for help. Following the assault, the defendant pulled up his pants and went back downstairs.

The victim's father immediately attempted to call his sister, the victim's aunt. Because the aunt had given her cell phone to the victim, the victim answered thecall. During the ensuing conversation, the victim's father asked her about what he heard on his cell phone, and the victim reluctantly told him about the sexual assault. He then instructed her to leave the apartment and to go to a friend's house. The victim's father then contacted his sister to inform her about what had happened and subsequently called the New Haven police department to report the assault. The police did not respond immediately, however, because the victim's father requested to be present when the police arrived to investigate. After speaking with the police, the victim's father had a telephone conversation with the defendant and confronted him about the assault. The victim's father told the defendant that he had two choices: either leave the countryor face going to prison. Thereafter, the victim's father facilitated the purchase of a one way ticket that enabled the defendant to leave the country and to go to Argentina.

When he arrived home from his business trip, the victim's father chose not to follow up with the police because the defendant was no longer in the country, and he did not want his daughter to be impacted negatively by an investigation of the sexual assault. On August 12, 2005, the defendant returned to Connecticut from Argentina. By this time, the victim was living exclusively with her father in Guilford. After learning that the defendant had returned to the area and that the victim was aware of his return, the victim's father arranged for her to receive counseling from a licensed therapist at the Guilford Youth and Family Services Center. During one of the intake interviews, the victim's father informed the therapist that the victim had been sexually assaulted by the defendant. The therapist then reported the alleged assault to the department of children and families (department). The department, in turn, reported the allegations to Detective OtonielReyes of the New Haven police department, who began an investigation on August 22, 2005.

On September 7, 2005, Reyes arranged for the victim to be interviewed by a multidisciplinary team at the Yale Child Sexual Abuse Clinic (clinic). Florence Mackey conducted the forensic interview, and Janet Murphy, a pediatric nurse practitioner, performed the physical examination. During the interviews, Reyes observed through a privacy glass. Once the interview with the victim was completed, Reyes contacted the defendant. After being interviewed at the New Haven police department, the defendant provided Reyes with a statement denying any wrongdoing regarding the events of May 25, 2005. Continuing his investigation, Reyes interviewed the victim's father and aunt. Following his interview with the victim's aunt, Reyes decided to interview the victim briefly one more time, this time at her school.⁵ Present during this interview were the victim; Reyes; his partner, Detective William White, Jr.; and the principal and the vice principal of the school. Reyes asked the victim whether she had been told what to say during their previous interview. The victim told Reyes that everything she said during their interview was true and that no one had coached her or told her what to say. Concluding his investigation, Reyes prepared a warrant for the arrest of the defendant.

Ultimately the defendant was charged in a six count information with two counts of sexual assault in the third degree and four counts of risk of injury to a child. The jury found the defendant guilty of one count of sexual assault in the third degree and two counts of risk of injury to a child. The court sentenced him to atotal effective term of twenty-five years incarceration, execution suspended after seventeen years, with ten years of probation, to which special conditions were attached, including registration as a sex offender and conditions, psychological testing and treatment as deemed appropriate by the office of adult probation. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims that the court improperly admitted into evidence anout-of-court statement of the victim, thus violating his rights under the confrontation clause of the sixth amendment to the United States constitution as articulated in Crawford v. Washington, supra, 541 U.S. at 36, 124 S.Ct. 1354. We disagree.

The following additional facts are relevant to our resolution of the defendant's claim on appeal. During direct examination, the victim identified unequivocally the defendant as the person who had sexually assaulted her on May 25, 2005, in addition to describing the manner in which the assault had taken place.⁶ The victim also testified that she reiterated these details to Mackey, Reyes and Murphy during her interview at the clinic. The victim then testified that she had a subsequent conversation with Reyes at her school but was unable to remember the details of that conversation. On cross-examination, the victim was asked about her conversations with Reyes; however, she was not asked specifically what she told Reyes during their second interview.

On direct examination, Reyes described the details of his investigation.⁷ Reyes testified that after interviewing the victim's aunt, he became aware that during his initial interview with the victim, he had failed to ask her if anyone instructed her to make statements that were untrue. Thereafter, Reyes explained that he had a brief conversation with the victim at her school. When asked to describe the second interview, Reyes said: "It was a very brief conversation.... I asked her ... [d]id anyone tell you to say anything that happened that was not true, that actually didn't happen, and she looked at me without ... blinking an eye and she told me no, that everything she said had been the truth."

On cross-examination, the defendant followed up on Reyes' interview with the victim at her school:

"Q. ... Can you tell the jury ... how you asked that question to her [regarding the victim's telling the truth], if you could, if you can recall?

"A. I think I—I said it earlier. I—I asked how she was doing, told her that I stopped in to—just, I needed to ask her a question ... and I said, did anyone, at any point in time, ask you to say something that wasn't true with regard to what happened to you, and she said no and that was it.... It was a very short conversation and it was limited to that."

The defendant concedes that he did not object to the...