State v. Bronson

¶1dissenting. I respectfully disagree with the majority’s conclusion that the trial court properly denied (1) the defendant’s request for a brief continuance to prepare for an evidentiary hearing pursuant to State v. Jarzbek, 204 Conn. 683, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988), on the state’s motion to videotape M’s testimony, (2) his motion for a court-ordered examination of M to determine whether she was capable of completing her testimony in his presence and (3) his motion to redact portions of a previously videotaped interview of M.

¶2I

¶3A careful examination of the record discloses that the trial court’s denial of the defendant’s request for a brief continuance deprived him of his constitutional right to the effective assistance of counsel and also may have infringed on his constitutional right of confrontation.

¶4“[T]he trial court’s discretion in granting or denying a request for a continuance should be exercised to accomplish the ends of substantial justice. State v. Battle, 170 Conn. 469, 476, 365 A.2d 1100 (1976).” State v. Hamilton, 30 Conn. App. 68, 83, 618 A.2d 1372 (1993), aff'd, 228 Conn. 234, 636 A.2d 760 (1994). In determining *753whether the court’s denial of the request for a continuance was improper, the majority properly observes that the following factors guide our review: “the timeliness of the request for continuance; the likely length of the delay; the age and complexity of the case; the granting of other continuances in the past; the impact of delay on the litigants, witnesses, opposing counsel and the court; the perceived legitimacy of the reasons proffered in support of the request; the defendant’s personal responsibility for the timing of the request; [and] the likelihood that the denial would substantially impair the defendant’s ability to defend himself . . . .” State v. Hamilton, 228 Conn. 234, 240, 636 A.2d 760 (1994).

¶5Application of those factors to the record discloses that the court improperly denied the defendant’s request for a continuance. First, the request was timely. The defendant received a copy of the state’s Jarzbekmotion at approximately 1:57 p.m. on Friday, September 13, 1996, and requested a continuance when the court reconvened shortly after 2 p.m. Second, the length of the continuance was minimal and constituted the least amount of time feasible to enable defense counsel to prepare adequately for the evidentiary hearing. Defense counsel requested a continuance until the following Tuesday, which was the next regularly scheduled court session.1 Third, the defendant did not seek nor was he afforded any previous continuances in connection with the Jarzbekproceeding. Fourth, a continuance from late Friday afternoon until the following Tuesday morning would not have adversely impacted the court, the state, M or any witnesses. Nor did the state articulate what advantage, if any, would be gained by conducting the hearing on Friday afternoon as opposed to the following Tuesday morning.

¶6*754Fifth, the defendant proffered several legitimate reasons in support of his request. After consulting M’s therapist, the state had informed defense counsel well in advance of the trial that it would not file a Jarzbekmotion, and defense counsel was entitled reasonably to rely on that representation. On September 13, 1996, however, without any prior notice, the state filed a request to videotape M’s testimony after M had already given extensive testimony on direct examination. In light of the serious consequences that that motion, if granted, imposed on the defendant, including the potential impact on his constitutional right to face-to-face confrontation, defense counsel properly requested a brief continuance so that he could prepare adequately for the evidentiary hearing. Defense counsel claimed that a brief continuance was necessary so that he could, inter alia, conduct legal research and determine whether to utilize expert testimony.

¶7Sixth, neither defense counsel nor the defendant were responsible for the timing of the request. The state filed this motion because, just prior to the luncheon recess, M experienced difficulties during the prosecutor’s direct examination. Defense counsel did not precipitate the state’s motion by, inter alia, aggressively cross-examining or intimidating M. The record neither discloses, nor does the state claim, that M was unable to testify in the defendant’s presence because the defendant had previously threatened or intimidated M or her family. The timing of the defendant’s request was directly influenced by and was a direct consequence of the timing of the state’s motion.

¶8Last, the court’s denial of the request substantially impaired the defendant’s ability to defend himself. The Jarzbekhearing implicated the defendant’s constitutional right to face-to-face confrontation. See Coy v. Iowa, 487 U.S. 1012, 1016, 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988) (“the Confrontation Clause guarantees *755the defendant a face-to-face meeting with witnesses appearing before the trier of fact”); see also State v. Bonello, 210 Conn. 51, 56, 554 A.2d 277, cert. denied, 490 U.S. 1082, 109 S. Ct. 2103, 104 L. Ed. 2d 664 (1989) (Jarzbek hearing requires court to “ ‘balance the individual defendant’s right of confrontation against the interest of the state in obtaining reliable testimony from the particular minor victim in question’ ”). Therefore, “[i]f the defendant is entitled to a hearing on the state’s motion for videotaped testimony, he is entitled to have the trial court ensure that such a hearing is meaningful because, as we recognized in Jarzbek, the hearing on the motion serves to protect the right of an accused to confront witnesses against him as guaranteed by the confrontation clause of both the federal and state constitutions.” (Emphasis added; internal quotation marks omitted.) State v. Marquis, 241 Conn. 823, 837, 699 A.2d 893 (1997).

¶9The Jarzbekhearing implicated the defendant’s constitutional light of confrontation, and he could not adequately protect this right unless he received effective assistance of counsel at the hearing. In light of the court’s denial of the request for a brief continuance, I respectfully disagree with the majority’s conclusion that a defense attorney, who was neither provided with advance notice of the state’s Jarzbekmotion nor afforded a meaningful opportunity to conduct legal research, develop legal strategy and determine whether to utilize expert testimony, could have adequately protected his client’s right of confrontation during a Jarz-bek hearing. Thus, the court’s denial of the request for a continuance deprived the defendant of his right to the effective assistance of counsel and also may have infringed on his constitutional right of confrontation.

¶10I also respectfully disagree with the majority’s conclusion that the defendant was not prejudiced by the court’s denial of the request for a continuance solely *756because defense counsel failed to inform the court specifically that the denial of this request could infringe on the defendant’s constitutional rights to the effective assistance of counsel and confrontation. Defense counsel’s failure to articulate this concern to the court did not negate any actual prejudice suffered by the defendant. In reviewing the propriety of a court’s denial of a request for a continuance, “an appellate court should limit its assessment of the reasonableness of the trial court’s exercise of its discretion to a consideration of those factors, on the record, that were presented to the trial court, or of which that court was aware, at the time of its ruling on the motion for a continuance.” (Emphasis added.) State v. Hamilton, supra, 228 Conn. 242. It is reasonable to assume that the court was aware that the Jarzbekhearing implicated the defendant’s right of confrontation and that a denial of the request for a continuance implicated the defendant’s right to the effective assistance of counsel.

¶11I also respectfully disagree with the majority’s conclusion that the trial court’s denial of the request for a continuance did not prejudice the defendant. This conclusion is predicated on the improper assumption that no amount of preparation would have enabled defense counsel to persuade the court to deny the state’s Jarz-bek motion, as well as on the court’s statement, made prior to the presentation of any evidence, that the outcome of the Jarzbekhearing was a foregone conclusion.2

¶12*757II

¶13A careful examination of the record also discloses that the trial court improperly denied the defendant’s request for a court-ordered examination of M to determine whether she was capable of completing her testimony in his presence.

¶14“[I]n criminal prosecutions involving the alleged sexual abuse of children of tender years, the practice of videotaping the testimony of a minor victim outside the physical presence of the defendant is, in appropriate circumstances, constitutionally permissible. [The] holding that appropriate circumstances may warrant a departure from strict compliance with confrontation requirements does not, however, signal a relaxation of the underlying evidentiary requirement that appropriate circumstances be proven to exist. . . .

¶15“[A] trial court must determine, at an evidentiary hearing, whether the state has demonstrated a compelling need for excluding the defendant from the witness room during the videotaping of a minor victim’s testimony. In order to satisfy its burden of proving compelling need, the state must show that the minor victim would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that the trustworthiness of the victim’s testimony would be seiiously called into question. Furthermore, the state bears the burden of proving such compelling need by clear and convincing evidence. . . . [I]n light of the constitutional right of confrontation at stake here, the primary focus of the trial court’s inquiry must be on the reliability of the minor victim’s testimony, not on the injury that the victim may suffer by testifying in the presence of the accused.” (Citations omitted.) State v. Jarzbek, supra,*758204 Conn. 704-705; see State v. Marquis, supra,241 Conn. 834.

¶16By requesting permission to videotape M’s testimony outside the presence of the defendant, the state called into question M’s ability to testify reliably in a formal courtroom setting and in the presence of the defendant. Because the state petitioned the court to utilize this procedure, it was reasonable for the defendant to request a court-ordered examination to determine whether M was capable of completing her testimony in his presence. Although a court is not required to order such an examination whenever it conducts a Jarzbekhearing, in light of the specific factual circumstances presented by this case, I respectfully submit that the court’s denial of the request was improper.

¶17M’s father and Linda Heslin, the victim’s advocate, testified that M was apprehensive about continuing her testimony in the presence of the defendant, and they believed that M would be better able to testify out of his presence. Prior to the state’s request for a Jarzbekhearing, however, M’s therapist concluded that M was capable of testifying reliably in the defendant’s presence. Moreover, the record discloses that M offered extensive testimony on direct examination in the defendant’s presence before she experienced difficulty. In light of this conflicting evidence, a court-ordered examination by an expert would have provided an objective assessment of M’s ability to testify reliably, information that was highly relevant to the court’s determination as to whether the state had satisfied its burden of proving by clear and convincing evidence “that the minor victim would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that the trustworthiness of the victim’s testimony would be seriously called into question.” (Internal quotation marks omitted.) State v. Marquis, supra,241 Conn. 834.

¶18*759III

¶19An examination of the record also discloses that the trial court improperly denied the defendant’s motion to redact portions of a 1994 videotaped interview of M. The court improperly concluded that the challenged portions of that videotape were admissible pursuant to the constancy of accusation doctrine.

¶20On September 13,1996, M testified on direct examination as to a single incident of improper touching by the defendant. When the prosecutor asked M, “Do you remember if [the defendant] touched your private one time or more than one time?” M responded, “I can’t remember.” On or about November 22, 1994, Diane Edell had videotaped her interview of M. Edell was the program coordinator and interviewer at the child abuse diagnostic center at Saint Francis Hospital and Medical Center. The state sought to present that videotaped interview to the juiy. On September 18, 1996, defense counsel moved to redact those portions of the videotape in which M stated that the defendant had sexually assaulted her on several other occasions. Defense counsel claimed that the challenged portions of the videotape constituted hearsay and were not admissible pursuant to the constancy of accusation doctrine. The court denied the motion. The state did not proffer any alternative basis for admitting the challenged portions of the videotape.

¶21“[A] person to whom a sexual assault victim has reported the assault may testify only with respect to the fact and timing of the victim’s complaint; any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessaiy to associate the victim’s complaint with the pending charge, including, for example, the time and place of the attack or the identity of the alleged perpetrator. *760. . . Thus, such evidence is admissible only to corroborate the victim’s testimony and not for substantive purposes. Before the evidence may be admitted, therefore, the victim must first have testified concerning the facts of the sexual assault and the identity of the person or persons to whom the incident was reported. In determining whether to permit such testimony, the trial court must balance the probative value of the evidence against any prejudice to the defendant.” State v. Troupe, 237 Conn. 284, 304-305, 677 A.2d 917 (1996) (en banc). “ [Constancy of accusation evidence is not admissible unless the victim has testified, and is subject to cross-examination, concerning the crime and the identity of the person or persons to whom the victim has reported the crime . . . .” (Citations omitted.) Id., 293.

¶22Several factors establish that the court improperly admitted the challenged portions of the videotape under the constancy of accusation doctrine. First, Troupeauthorizes the “person to whom a sexual assault victim has reported the assault [to] testify only with respect to the fact and timing of the victim’s complaint . . . .” (Emphasis added.) Id., 304. Troupedid not explicitly authorize the trial court to admit a videotaped interview of the victim in which the victim herself testifies as to the sexual assault, as opposed to merely allowing the counselor who received the victim’s complaint to testify as to the fact and timing of the complaint. The majority today expands the constancy of accusation doctrine to permit the admission of testimony by a victim herself, as opposed to merely admitting the corroborative testimony of the person to whom a victim issued her complaint.

¶23Second, the constancy of accusation doctrine provides that “such evidence is admissible only to corroborate the victim’s testimony and not for substantive purposes.” (Emphasis added.) Id. In the present case, however, M never testified on direct examination as to *761multiple incidents of sexual assault. Because M testified only as to one incident of sexual assault, Trowpe does not permit the court to admit evidence that M informed Edell that the defendant had sexually assaulted her on several other occasions. Moreover, the challenged portions of the videotape were neither relevant to the fact and timing of M’s complaint as to the single incident of sexual assault, nor were they necessary to associate M’s complaint with the pending charge. Last, there is no indication in the record that the court “balanc[ed] the probative value of the evidence against any prejudice to the defendant.” Id., 305.

¶24I respectfully disagree with the majority’s conclusion that defense counsel’s failure to challenge the admission of portions of the 1994 videotape until after M had completed her testimony, but before this videotape was shown to the jury, undermines the strength of defense counsel’s objection or, in the alternative, serves as an independent justification for admitting the videotape in its entirety. The victim must first testify as to certain matters before the court can determine whether to admit constancy of accusation evidence. Constancy of accusation “evidence is admissible only to corroborate the victim’s testimony and not for substantive purposes. Before the evidence may be admitted, therefore, the victim must first have testified concerning the facts of the sexual assault and the identity of the person or persons to whom the incident was reported.” Id., 304-305. If the court cannot determine whether proposed constancy of accusation evidence is admissible until after the victim has completed her testimony, it follows that defense counsel cannot properly determine whether to object to the admission of such evidence until the victim has testified. Defense counsel could not, therefore, determine whether it was necessary to object to the admission of any portion of the videotape until after M had completed her testimony.

¶25*762The court’s admission of the challenged portions of the 1994 videotape substantially prejudiced the defense. M’s testimony in court was limited to one incident of improper touching, and in connection with this incident the state charged the defendant with one count of sexual assault in the fourth degree and one count of risk of injury to a child. In defense to this single allegation, the defendant claimed that on the day in question, while he was sleeping, M had grabbed his fingers and he awoke to find M stimulating herself with his fingers. The defense theory was consistent with the testimony given by a state’s witness, Elaine Yordan, a physician, that M masturbated.3 The admission of the challenged portions of the videotape, wherein M claimed that the defendant had sexually assaulted her on several other occasions,4 substantially undermined the defendant’s *763claim that the single incident of improper touching was inadvertent.

¶26For all of the foregoing reasons, I would reverse the judgment and remand the case for a new trial.