State v. Simpson

945 A.2d 449

286 Conn. 634

STATE of Connecticut v. James SIMPSON.

No. 18051.

Supreme Court of Connecticut.

Argued February 11, 2008.

Decided April 29, 2008.

Elizabeth M. Inkster, senior assistant public defender, with whom were John Cizik, assistant public defender, and, on the brief, Catherine Kollet, certified legal intern, for the appellant (defendant).

Robert J. Scheinblum, senior assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Amy Sedensky, senior assistant state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, KATZ, PALMER and ZARELLA, Js.

NORCOTT, J.

The defendant, James Simpson, appeals¹ from the judgment of conviction, rendered after a jury trial, of 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 2003) § 53-21(a)(2).³ On appeal, the defendant claims that the admission into evidence of portions of a videotaped interview of the victim violated: (1) this court's decision in State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986), which permits the limited substantive use of prior inconsistent statements; and (2) his rights under the confrontation clause of the sixth amendment to the United States constitution⁴ as articulated by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We disagree, and affirm the judgment of the trial court.

The record reveals the procedural history and the following facts, which the jury reasonably could have found. The defendant is the great uncle of the victim, E.⁵ In the early spring of 2003, the defendant babysat for E, who was then five years old, and her older brother, D, at the defendant's apartment in Waterbury. During that time, the defendant engaged in numerous sexual acts with E, including cunnilingus and digital and penile penetration of her vagina. E's family did not become aware of the defendant's conduct until May, 2003, when E approached Annette Dillan, a social worker at her elementary school, and complained of vaginal itching; E then told Dillan and the school nurse that the defendant had kissed her vagina.

Dillan notified E's grandmother, C,⁶ and the department of children and families (department) about E's allegations, and the department initiated an investigation that was continued by Jacqueline Ortiz, a Waterbury police detective. On June 6, 2003, Sharon Kelly of the Child Guidance Center in Waterbury conducted a videotaped interview of E in conjunction with that investigation. During that interview, E stated that the defendant had kissed her vagina, and also had penetrated her vagina with his penis. E also was examined by Judith Kanz, a pediatric nurse practitioner at Saint Mary's Hospital in Waterbury, who concluded that E exhibited physical signs that were consistent with sexual abuse.⁷

The state subsequently charged the defendant with one count of sexual assault in the first degree in violation of § 53a-70(a)(2), and one count of risk of injury to a child in violation of § 53-21(a)(2). The defendant was tried before a jury,⁸ and the trial court admitted into evidence, over his objection, portions of the videotaped interview of E pursuant to State v. Whelan, supra, 200 Conn. at 743, 513 A.2d 86. The trial court rendered a judgment of conviction in accordance with the jury's verdict of guilty on both counts. The trial court sentenced the defendant to a total effective sentence of fifteen years imprisonment, with five years special parole. This appeal followed.

On appeal, the defendant claims that the trial court improperly admitted portions of E's videotaped interview for substantive purposes pursuant to State v. Whelan, supra, 200 Conn. at 743, 513 A.2d 86. The defendant also contends that the admission of the videotaped statement violated Crawford v. Washington, supra, 541 U.S. at 36, 124 S.Ct. 1354.

The following additional facts and procedural history are relevant to the defendant's claims on appeal. Citing the Appellate Court decision in State v. Luis F., 85 Conn.App. 264, 856 A.2d 522 (2004), the state offered portions of the videotaped interview into evidence to establish that the defendant had penetrated E's vagina with his penis, as well as digitally and orally.⁹ The defendant objected to the admission of the videotape on the ground that E's trial testimony was not inconsistent with her statements on the videotape because she had not recanted or disavowed portions of that interview; the defendant argued that her trial testimony "is incomplete, not inconsistent...."¹⁰

The defendant also claimed that the admission of the videotape would violate Crawford v. Washington, supra, 541 U.S. at 36, 124 S.Ct. 1354, because he would not be able to cross-examine E effectively. After viewing the videotape, the trial court reserved decision.

The following day at trial, the trial court and the parties further discussed the state's use of the videotape. The trial court noted that the videotape possibly could be used to refresh E's recollection about what had happened to her, and would not necessarily need to be played for the jury. The defendant agreed to this, and the videotape was played for the victim, who maintained that she did not remember the defendant touching her body in any way with his penis. Thereafter, Ortiz testified and laid the foundation for the admissibility of the videotape as a fair and accurate representation of the interview. At this point, the videotape was presented to the jury; see footnote 9 of this opinion; and the trial court instructed the jury as to its proper use both to evaluate the credibility of the parties in the case, as well as substantive evidence under Whelan.¹¹

I

It is well settled that, "[a]n out-of-court statement offered to prove the truth of the matter asserted is hearsay and is generally inadmissible unless an exception to the general rule applies." (Internal quotation marks omitted.) State v. Kirby, 280 Conn. 361, 373, 908 A.2d 506 (2006). In State v. Whelan, supra, 200 Conn. at 753, 513 A.2d 86, however, we adopted a hearsay exception "allowing the substantive use of prior written inconsistent statements, signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination." "This rule has also been codified in § 8-5(1) of the Connecticut Code of Evidence, which incorporates all of the developments and clarifications of the Whelan rule that have occurred since Whelan was decided."¹² State v. Pierre, 277 Conn. 42, 58, 890 A.2d 474, cert. denied, 547 U.S. 1197, 126 S.Ct 2873, 165 L.Ed.2d 904 (2006). In addition to signed documents, the Whelan rule also is applicable to tape-recorded statements that otherwise satisfy its conditions. See, e.g., State v. Alvarez, 216 Conn. 301, 313, 579 A.2d 515 (1990); see also State v. Luis F., supra, 85 Conn.App. at 267-69, 856 A.2d 522 (Whelan rule applicable to videotapes).

The Whelan hearsay exception applies to "a relatively narrow category of prior inconsistent statements ... [and was] carefully limited ... to those prior statements that carry such substantial indicia of reliability as to warrant their substantive admissibility. As with any statement that is admitted into evidence under a hearsay exception, a statement that satisfies the Whelan criteria may or may not be true in fact. But, as with any other statement that qualifies under a hearsay exception, it nevertheless is admissible to establish the truth of the matter asserted because it falls within a class of hearsay evidence that has been deemed sufficiently trustworthy to merit such treatment. Thus, as with all other admissible nonhearsay evidence, we allow the fact finder to determine whether the hearsay statement is credible upon consideration of all the relevant circumstances. Consequently, once the proponent of a prior inconsistent statement has established that the statement satisfies the requirements of Whelan, that statement, like statements satisfying the requirements of other hearsay exceptions, is presumptively admissible." State v. Mukhtaar, 253 Conn. 280, 306, 750 A.2d 1059 (2000).

Before turning to the defendant's specific claims on appeal, we note that "[t]he admissibility of evidence, including the admissibility of a prior inconsistent statement pursuant to Whelan, is a matter within the ... discretion of the trial court.... [T]he trial court's decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.... On review by this court, therefore, every reasonable presumption should be given in favor of the trial court's ruling." (Citation omitted; internal quotation marks omitted.) State v. Pierre, supra, 277 Conn. at 56, 890 A.2d 474; accord State v. Saucier, 283 Conn. 207, 217-19, 926 A.2d 633 (2007) (Adopting "`hybrid'" approach to review of hearsay claims and concluding that "[w]e review the trial court's decision to admit evidence, if premised on a correct view of the law, however, for an abuse of discretion.... In other words, only after a trial court has made the legal determination that a particular statement is or is not hearsay, or is subject to a hearsay exception, is it vested with the discretion to admit or to bar the evidence based upon relevancy, prejudice, or other legally appropriate grounds related to the rule of evidence under which admission is being sought." [Citation omitted.]).

A

We begin with the defendant's claim that the statements in the videotaped interview are inadmissible under the Whelan rule because they were not made under circumstances that demonstrate their reliability and trustworthiness. Specifically, the defendant contends that "E lacked credibility and the capacity to provide reliable statements" because of her mental health and behavioral problems.¹³ The...