State v. Nguyen

253 Conn. 639

756 A.2d 833

STATE OF CONNECTICUT v. HOA VAN NGUYEN

(SC 16093)

Supreme Court of Connecticut.

Argued April 27, 2000.

Officially released July 18, 2000.

Borden, Norcott, Katz, Palmer and Vertefeuille, JS. James E. Swaine, for the appellant (defendant).

Ellen A. Jawitz, assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Edward R. Narus, senior assistant state's attorney, for the appellee (state).

Opinion

KATZ, J.

The principal issue in this certified appeal involves the proper scope of the trial court's inquiry when faced with an allegation that a sequestration order granted pursuant to Practice Book § 42-36¹ has been violated. In specific, we must determine whether, in the absence of a request from counsel, the trial court must conduct a formal evidentiary hearing prior to ruling on the merits of an alleged sequestration violation. This inquiry requires that we also determine, as a preliminary matter, the limitations of such an order, specifically whether a sequestration order granted pursuant to § 42-36 operates to prohibit counsel from discussing, outside of the courtroom, the testimony of a prior witness in the presence of a prospective witness. We conclude that, in the absence of a contrary indication from the trial court, such conduct falls within the scope of a sequestration order. We conclude further that, although the trial court must conduct a preliminary inquiry of counsel when presented with a facially credible allegation that a sequestration order has been violated, whether to conduct an evidentiary hearing sua sponte is a matter within the trial court's discretion. Finally, consistent with the Appellate Court's determination of this issue; see State v. Nguyen, 52 Conn. App. 85, 88-89, 726 A.2d 119 (1999); we conclude that, under the circumstances of this case, the trial court's failure to conduct an evidentiary hearing was not an abuse of discretion. Accordingly, we affirm the judgment of the Appellate Court.

The defendant, Hoa Van Nguyen, was charged with sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2),² and risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53-21.³ Following a jury trial, the defendant was convicted on both counts, and the trial court imposed a total effective sentence of fifteen years imprisonment, execution suspended after twelve years, with five years probation.

The defendant appealed from the judgment of the trial court to the Appellate Court. The Appellate Court opinion sets forth the following facts that are relevant to this appeal. "The defendant, his wife and the victim's parents jointly purchased and lived together in a singlefamily home in West Hartford. In 1994, the five year old victim, Q, and her brother went to play in the basement of the house. The defendant was already in the basement and asked the victim's brother to go back upstairs and to lock the basement door behind him.

"The defendant then removed Q's shorts and underpants and unfastened his trousers. He forced Q to stimulate his penis manually and then inserted his penis into her vagina. Afterwards, the defendant told Q that he would buy her a toy if she kept secret what had happened. Q went upstairs and told her mother what had occurred." State v. Nguyen, supra, 52 Conn. App. 87.

At trial, "[t]he trial court granted the state's motion for a sequestration order pursuant to Practice Book § 876, now § 42-36. During the defendant's case-in-chief, the defendant's wife testified that Q's parents were physically abusive when disciplining Q and her brother, that they had fabricated the rape charge to gain control of the jointly owned house and that Q had cooperated with her parents out of fear of physical punishment. Immediately following that testimony, the prosecutor overheard part of a closed door discussion in a room outside of the courtroom between the defendant's attorney, the defendant's wife and George Thibodeau ... a friend of the defendant [who was to be the next defense witness]." Id., 87-88.

The prosecutor immediately brought this incident to the attention of the trial court, stating specifically: "I heard [defense counsel] talking to the last witness who is [the defendant's wife], and in doing so I heard him saying to her `Well, why didn't you say this and you should have said this,' something to that effect about her testimony that she had just completed and testified to. I heard her making [a] response to him. I'm not sure what that response was, but I could hear a female voice obviously responding to what inquiries were posed [to] her. Thereafter, I hear counsel indicating that, you know, `She had said this' and then directing his attention I would infer to Mr. Thibodeau, `Well, can you say this and can you say this' and discussing what obviously would be, you know, what his impending testimony was going to be."

Defense counsel responded to the prosecutor's representations as follows: "I did go into the witness room. There was both the ... defendant's wife and ... Thibodeau. There may have been some reference to her while Mr. Thibodeau was there, some comment by me about her testimony. As to what it was I can't remember exactly but my questioning about something that she said, but other than that, I have no recollection of talking to Mr. Thibodeau about what he would say or not say.... I may have asked [the defendant's wife] a question about what she said when she testified, yes. She was upset, and she was inquiring about [whether she had said] the right thing, that sort of thing, but, you know, I responded to that mainly because my thinking was that, well, this witness has testified. You know, it's not really an issue what she says in front of anybody, not really thinking about Thibodeau, who was in the corner basically reading the paper when I walked in."

Thereafter, the court instructed the prosecutor to restate the basis of his allegation. The prosecutor recounted that "there was a reference that `she said this' and then a direction, which I believe would be to Mr. Thibodeau about `Well, can you say this' and `You can say this' as to the nature of what he would ultimately testify to ... which I perceive obviously is discussing what she said with him in [Thibodeau's] presence and then obviously determining to proffer his evidence." In response, defense counsel denied the allegation, emphasizing that, "[t]here was no instruction by me to anybody as to what to say. Now, there may be a discussion about some other matter but certainly no discussion about what [Thibodeau's] testimony should be." At that point, the prosecutor clarified that he was not suggesting that defense counsel told Thibodeau what to say on the stand, but that he had "heard [defense counsel] refer to matters that the witness had just testified to. `She said this, [s]he said this' and then directing his attention obviously to Mr. Thibodeau, who is standing right there `Well, can you say this,' and `you could say this' and then getting into the sum and substance of his conversation. That's what I heard." In response, defense counsel effectively retracted his original statement that he had discussed specific elements of the prior witness' testimony in Thibodeau's presence, stating that, "[t]here was a question or two about `did I say the right thing, did I not say the right thing,' but I want to be clear about one thing, and that is that the substance of [the defendant's wife's] testimony was not gone into in front of Mr. Thibodeau." On the basis of these statements, the court concluded that the sequestration order, the purpose of which was to protect the integrity of the witnesses, had been violated. Because of that breach, the trial court barred Thibodeau's testimony.

The following day, the defendant moved that the trial court reconsider its order and permit Thibodeau's testimony. Although defense counsel acknowledged having had a conversation with the defendant's wife, he attempted to clarify the perceived inconsistency in his previous statements by emphasizing that "the content of her testimony was not discussed in front of Mr. Thibodeau." At the same time, defense counsel acknowledged having "a conversation with Mr. Thibodeau about his testimony .... He had some questions about his testimony totally unrelated to anything regarding what the defendant's wife had to say because she wasn't describing the contents of her testimony. I was entitled to talk to him even though she was in the room about his testimony. He was my witness. She had already concluded her testimony."

The trial court instructed the prosecutor to recount again what he had overheard. The prosecutor's recollection of events mirrored his earlier representations. He responded: "Again I heard counsel speaking to the female witness who again I say is the witness who testified, the defendant's wife. He had communication with her about what she testified in the sense of she said something. He said, `Well, why didn't you say this,' and she said something, and `You could have said this,' and then there was conversation in the room that said, `Well, she said this' and asking Mr. Thibodeau certain questions about what he could say and what he would say.... There was a statement made. I don't know if it was directed particularly to Mr. Thibodeau, but the statement was `Well, she said this,' so I don't know who—I can't say who it was made to, but obviously that statement was made in the presence of Mr. Thibodeau, and then there was conversation with Mr. Thibodeau about his upcoming testimony." Defense counsel argued that the prosecutor was taking the conversation out of context, and reiterated his claim that "[t]he only thing that was discussed was the way she talked, the way she testified, her feelings about it, whether she should have been stronger, more emotional, did she cry too much, but the content of what she said was not...