State v. Davis

Page 1122

820 A.2d 1122

76 Conn.App. 653

STATE of Connecticut, v. Frederick DAVIS, Jr.

No. 21306.

Appellate Court of Connecticut.

Argued January 6, 2003.

Decided May 13, 2003.

COPYRIGHT MATERIAL OMITTED

LAVERY, C. J., and FLYNN and WEST, Js.

Hope C. Seeley, with whom, on the brief, was Patrick S. Bristol, for the appellant (defendant).

Robert J. Scheinblum, assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Robin D. Cutuli, assistant state's attorney, for the appellee (state).

WEST, J.

The defendant, Frederick Davis, Jr., appeals from the judgment of conviction, rendered after a jury trial, of three counts of risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21(2). On appeal, the defendant claims that the court improperly (1) permitted an expert witness to testify as to the credibility of the victims, thereby denying him a fair trial, (2) denied him his right to confrontation by admitting constancy of accusation testimony, (3) denied his motion for a judgment of acquittal on the basis of insufficient evidence as to victim A, (4) violated his right to due process because the risk of injury counts were not transferred properly from the Juvenile Court to the regular criminal docket, (5) permitted the victims to testify via videotape outside his presence and (6) instructed the jury as to reasonable doubt, thereby lowering the state's burden of proof and depriving him of his right to a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The three minor victims¹ were ages five, six and seven when they moved into a house on the cul-de-sac where the defendant lived in early September, 1998. The victims and the defendant were the only children who lived on the street. The victims are brothers, R and A, and their sister, N, who met the defendant shortly after moving. The defendant, who became fourteen years of age on October 26, 1998, was known to the victims as Joe. The victims often went to the defendant's home to ask him to play with them. The defendant frequently declined the invitation to join them. On occasion, the victims also tried to participate in whatever activities the defendant was engaged in with his teenage friends. At some point, the defendant agreed to play with the victims and to show them places in the neighborhood where he played when he was their age, and he rode bicycles, sledded and rollerbladed with them.

In late October, 1998, the defendant was touching the intimate parts of the victims and had them touch his intimate parts. The sexual contact continued until April, 1999, when the victims' mother learned of it. The sexual contact occurred at a variety of secluded locations adjacent to the houses on the cul-de-sac, including in a red shed and under a deck of a vacant house, under the deck of the defendant's home, in the shed in his backyard and in wooded areas. The defendant and the victims engaged in what the victims called rolling or rolling pee pees. The defendant compelled the victims to remove their pants and underwear and to lie on the ground. He also removed his pants and underwear. The victims then took turns lying on top of him and rolling back and forth. They rolled, in the victims' words, back privates and front privates. The defendant told the victims not to tell anyone what they were doing.²

The defendant also pulled down R's pants and fondled the younger boy's penis. He compelled R to engage in penile to penile contact and penile to buttocks contact. The defendant rubbed his penis against A's penis. N demonstrated "Captain Black Eye" to the defendant by pulling down her pants and spreading her buttocks to expose her anus. N explained that her stepfather had shown her how to play Captain Black Eye. Subsequently, the defendant invited one of his friends to witness N expose herself. The defendant instructed N to show his friend Captain Black Eye, and she complied.

The victims' mother discovered that the defendant was having sexual contact with her children on April 24, 1999. The victims' mother called the children, who were playing in the neighborhood, to return home. N and A came home immediately, but R did not. When the mother asked A where his brother was, A informed her that "R was doing something very bad." When R came home, his mother asked what he had been doing. Initially, R was reluctant to tell his mother what he had been doing, but he eventually informed her that the defendant had pulled down his own pants as well as R's, and had forced R to masturbate him.

The victim's mother immediately went to the defendant's home to confront him. She informed the defendant's mother of R's accusation that the defendant had masturbated him. The mothers agreed that the defendant would stay away from the victims. Later that day, the victims' mother learned from N and A that the defendant had abused them, too. That night she reported the matter to the police. The next day she took her children to New Britain General Hospital where they were examined and interviewed by the hospital staff. She subsequently took them to Saint Francis Hospital and Medical Center's Children's Advocacy Center, where they were examined and interviewed further. The victims were referred for sexual abuse counseling.

Following a police investigation, the defendant was arrested and charged with three counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a)(2) and three counts of risk of injury to a child. Subsequent to the jury's convicting the defendant of three counts of risk of injury to a child,³ the court gave the defendant an effective sentence of eight years in prison, suspended after thirty months, with ten years probation. The defendant appealed. Additional facts will be included as necessary.

I

The defendant's first claim is that the court improperly permitted one of the state's expert witnesses to testify that when the victims related their stories, they did not appear to have been coached. The defendant claims that by testifying in that manner, the expert witness vouched for the credibility of the victims. We disagree.

At trial, Kathleen Barrett, a psychologist at Saint Francis Hospital and Medical Center, testified about child sexual abuse, her experience investigating child sexual abuse cases and interviewing such victims. She explained how a trained interviewer could identify children who have been coached to report the abuse. She testified that she did not see any indication of coaching in the victims here. At trial, the defendant did not object to Barrett's direct testimony regarding coaching and now, on appeal, seeks plain error review of the claimed evidentiary error. See Practice Book § 60-5.

"Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.... Plain error is a doctrine that should be invoked sparingly.... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice." (Citations omitted; internal quotation marks omitted.) State v. Toccaline, 258 Conn. 542, 552-53, 783 A.2d 450 (2001).

Our Supreme Court has stated repeatedly that "an expert may not testify regarding the credibility of a particular victim.... Thus, [it has] recognized the critical distinction between admissible expert testimony on general or typical behavior[al] patterns of minor victims and inadmissible testimony directly concerning the particular victim's credibility." (Citations omitted; internal quotation marks omitted.) State v. Grenier, 257 Conn. 797, 806, 778 A.2d 159 (2001).

The defendant argues that the facts of this case are more similar to the facts of Grenier than they are to the facts of Toccaline. We disagree. In Grenier, in which the defendant preserved his claim at trial,⁴ our Supreme Court ordered that the judgment of the trial court be reversed and that there be a new trial as a result of two of the victim's therapists having testified that the victim's reports of sexual abuse were credible. In that case, the state agreed with the defendant that the testimony was not admissible because it bore on the ultimate question of the victim's credibility. Id., 805, 778 A.2d 159. Our Supreme Court concluded that admission of the testimony did not constitute harmless error. Id., 806-807, 778 A.2d 159. In that case, the state failed to produce any physical evidence or eyewitness testimony of sexual abuse. Id., 807, 778 A.2d 159. The victim testified that the defendant had abused her, and the defendant testified that he had not. Id., 807-808, 778 A.2d 159. The testimony of the expert witnesses, therefore, "struck at the heart of the central — indeed, the only — issue in the case, namely, the relative credibility of [the victim] and the defendant." Id., 808, 778 A.2d 159.

In contrast, the defendant in Toccaline failed to object to the testimony of the expert witness, as is the case with the defendant here.⁵ In Toccaline, there was medical evidence that the victim had been abused, and evidence of depression and change in the victim's character. State v. Toccaline, supra, 258 Conn. 552 n.13, 783 A.2d 450. In this case, there was no physical evidence of sexual contact. The victims' mother and two of their teachers, however, noticed behavioral changes in the victims after the defendant's sexual contact began.⁶ The defendant's friend testified that he witnessed the defendant order N to demonstrate Captain Black Eye.

Furthermore, the record demonstrates that the defendant did not object to Barrett's testimony concerning whether the victims had been coached, but cross-examined her in an effort to demonstrate that the victims, in fact, had been coached.⁷ During summation, defense counsel argued to discredit...