State v. Jeffrey H.

176 Conn.App. 666

171 A.3d 64

STATE of Connecticut

v.JEFFREY H.^*

AC 38113

Appellate Court of Connecticut.

Argued March 13, 2017

Officially released September 26, 2017

Matthew D. Dyer, with whom, on the brief, was Kristen Mostowy, for the appellant (defendant).

Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were David S. Shepak, state's attorney, and Dawn Gallo, supervisory assistant state's attorney, for the appellee (state).

Sheldon, Mullins and Harper, Js.

HARPER, J.

The defendant, Jeffrey H., appeals from the judgment of conviction, rendered after a jury trial, of three counts of sexual assault in the first degree in violation of General Statutes § 53a–70(a)(1). On appeal, the defendant claims that the trial court (1) abused its discretion by preventing him from pursuing certain inquiries on cross-examination, thereby violating his sixth amendment right to present a defense, and (2) abused its discretion by admitting into evidence out-of-context portions of his interview conducted following a polygraph examination, in violation of his right to due process. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim, N, is the defendant's daughter. The defendant repeatedly sexually assaulted N from the time she was seven or eight years old until she was eleven years old. Most of the assaults during this period took place when N and the defendant went fishing together. The assaults recommenced when N was approximately twelve or thirteen years old and continued until she was approximately seventeen years old. Many of the assaults included threats of violence against N, her mother, and her sister. On several occasions, the defendant warned N that if she told anyone about the assaults, he would kill her, her mother, and her sister. On occasion, the defendant brandished a weapon, including a double-barreled shotgun, while committing an assault.

N did not report the defendant's conduct until 2009. At that time, the defendant and N's mother had divorced, and N was living with her mother and her sister in Massachusetts. N kept a journal as part of a course of psychiatric treatment that she received from Stefanie Lindahl, a psychiatrist. N documented her father's conduct in the journal and shared it with Lindahl. N reported the assaults to the police on July 31, 2009.

Detective William Flynn, a major crimes detective with the Connecticut State Police and a member of the child abuse investigative team, was assigned to investigate N's report. Throughout the investigation, Flynn interviewed N and took written statements from her. At the request of the state's attorney, Flynn used his police vehicle to drive N as she directed him to various locations where the abuse had occurred. These trips prompted N to remember additional incidents of sexual assault perpetrated by the defendant.

The defendant was arrested on September 29, 2010. The original information charged the defendant with offenses that were alleged to have occurred between March, 1997 and 2000. The state filed a substitute long form information on March 5, 2015,¹ charging the defendant with three counts of sexual assault in the first degree in violation of § 53a–70(a)(1) for offenses occurring in 2002, 2003, and 2004.

On March 31, 2015, the jury found the defendant guilty of three counts of sexual assault in the first degree. The court sentenced the defendant to a term of twelve years of imprisonment and five years of special parole on each count, to run consecutively, resulting in a total effective sentence of thirty-six years of imprisonment and fifteen years of special parole. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the trial court made two erroneous evidentiary rulings in violation of his right, under the sixth and fourteenth amendments to the federal constitution, to present a defense. Specifically, the defendant asserts that the trial court improperly prohibited him from cross-examining Flynn about a statute of limitations issue that the state had discovered on the eve of the original trial date. In addition, the defendant argues that the trial court erroneously barred testimony from Joseph C. Scirica, one of N's former treating physicians, regarding a notation in a 2006 letter in his file that N had a "remarkable history of a molestation/sexual assault." The state responds that the trial court properly excluded both the evidence relating to the statute of limitations and Scirica's letter. For the reasons that follow, we agree with the state.

The defendant's claims implicate both his constitutional right to present a complete defense, as well as the proper constraints that the rules of evidence impose on that right. Therefore, our analysis has two parts. First, we must determine whether the trial court abused its discretion in making certain evidentiary rulings regarding the statute of limitations and Scirica's letter. Second, if we find that the trial court abused its discretion, we must determine whether that caused a violation of the defendant's constitutional rights.

Because our analysis of each of the defendant's claims in this part of the opinion relies on the same legal principals, we first set forth our standard of review for each of those claims. "The sixth amendment to the United States constitution require[s] that criminal defendants be afforded a meaningful opportunity to present a complete defense .... The defendant's sixth amendment right, however, does not require the trial court to forgo completely restraints on the admissibility of evidence .... Generally, [a defendant] must comply with established rules of procedure and evidence in exercising his right to present a defense .... A defendant, therefore, may introduce only relevant evidence, and, if the proffered evidence is not relevant, its exclusion is proper and the defendant's right is not violated." (Footnote omitted; internal quotation marks omitted.) Statev. Wright, 273 Conn. 418, 424, 870 A.2d 1039 (2005). "Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter." (Internal quotation marks omitted.) Statev. Davis, 298 Conn. 1, 23, 1 A.3d 76 (2010).

The defendant's sixth amendment right to present a defense is satisfied "when defense counsel is permitted to expose to the jury the facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness." (Internal quotation marks omitted.) Statev. DanielB., 164 Conn.App. 318, 341, 137 A.3d 837, cert. granted on other grounds, 323 Conn. 910, 149 A.3d 495 (2016). "[R]estrictions on the scope of cross-examination are within the sound discretion of the trial judge ... but this discretion comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment .... To establish an abuse of discretion, [the defendant] must show that restrictions imposed [on the] cross-examination were clearly prejudicial." (Citation omitted; internal quotation marks omitted.) Id., at 341–42, 137 A.3d 837.

"Upon review of a trial court's decision, we will set aside an evidentiary ruling only when there has been a clear abuse of discretion .... The trial court has wide discretion in determining the relevancy of evidence and the scope of cross-examination and [e]very reasonable presumption should be made in favor of the correctness of the court's ruling in determining whether there has been an abuse of discretion." (Internal quotation marks omitted.) Statev. Santos, 318 Conn. 412, 423, 121 A.3d 697 (2015).

A

The following additional facts and procedural history are relevant to the defendant's statute of limitations claim. The defendant's trial originally was scheduled to begin on January 13, 2014. On the eve of trial, however, the state discovered that the statute of limitations had expired on the conduct supporting the original charges. The state sought a continuance, which the trial court granted. During the continuance, the state's attorney requested that Flynn conduct an additional interview with N. In this interview, N made additional allegations against the defendant pertaining to more recent sexual assaults that fell within the statute of limitations. These new allegations formed the basis for the substitute long form information that the state filed on March 5, 2015, and under which the defendant was tried and convicted.

At trial, the defendant attempted to establish, through cross-examination of Flynn, that the state's discovery of the statute of limitations issue prompted N's new allegations. The state objected on relevance grounds. In an offer of proof outside the presence of the jury, Flynn testified: "I knew there was an issue with the statute of limitations, I—that's about all I knew, there was a—we didn't have a large discussion on that." The trial court declined to allow any questioning regarding Flynn's "awareness of the statute of limitation [s] issue or that the—that issue demolished the [s]tate's case or anything of that nature." The trial court, however, allowed the defendant to inquire regarding Flynn's knowledge of the January, 2014 trial date and continuance, his involvement in trial preparations, and his role in the taking of an additional statement from N at the request of the state's attorney in January, 2014.

On appeal, the defendant argues that the trial court abused its discretion in excluding testimony regarding the statute of limitations issue during cross-examination of Flynn, thereby violating the defendant's sixth amendment right to present a defense. The defendant asserts that until the state discovered the statute of limitations issue, N was "remarkably consistent on the ages of the...