Argued Oct. 19, 1989.
[Copyrighted Material Omitted]
Milo J. Altschuler, Sp. Public Defender, for appellant (defendant).
Leah Hawley, Asst. State's Atty., with whom, on the brief, were Mary Galvin, State's Atty., and David Shepack, Asst. State's Atty., for appellee (State).
Before BORDEN, DALY and EDWARD Y. O'CONNELL, JJ.
[20 Conn.App. 738] BORDEN, Judge.
The defendant appeals from the judgment of conviction, after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70, sexual assault in the second degree in violation of General Statutes § 53a-71(a)(1), and risk of injury to a child in violation of General Statutes § 53-21. The court imposed consecutive sentences of fifteen, eight and seven years, for a total effective sentence of thirty years imprisonment.
The defendant claims that the trial court erred (1) in granting the state's motion to quash a subpoena for [20 Conn.App. 739] certain erased police records of the victim's uncle, (2) in omitting from its jury charge an element of the offense of risk of injury to a child, (3) in declining to give a specific cautionary instruction on the credibility of a child witness, (4) in improperly commenting on the evidence during its instructions to the jury, (5) in denying the defendant's request to submit the bill of particulars to the jury, (6) in violating the defendant's double jeopardy rights by imposing consecutive sentences on the three charges, and (7) in denying the defendant's motion for an additional presentencing psychiatric diagnostic examination under General Statutes § 17-244. We find no error.
In the first and second counts of the information, the state alleged that between January, 1983, and March, 1985, the defendant engaged in vaginal intercourse by force, and in vaginal intercourse with a person under the age of sixteen. In the third count, the state alleged that, between the same dates, the defendant willfully
caused and permitted a child under the age of sixteen to be placed in a situation where her morals where likely to be impaired. In response to the defendant's motion, the state filed a bill of particulars, stating, inter alia, that as to the first two counts, the state intended to prove repeated acts of vaginal intercourse by the defendant with the victim, and as to the third count, repeated acts of vaginal intercourse and sexual contact.
The jury could reasonably have found the following facts. The victim is the defendant's daughter. Between January, 1983, and March, 1985, when the victim was between six and eight years old, five separate incidents occurred. In the first incident, the defendant pulled up the victim's nightgown and tickled her vagina with his fingers. When she asked the defendant to stop, he told her to be quiet because "I have to concentrate." In the next three incidents, the defendant tied the victim to a bed with clothesline and engaged in vaginal intercourse[20 Conn.App. 740] with her. After the fourth incident, the victim, her mother and her brother moved from the family's apartment in Ansonia to Seymour, and the defendant remained in the Ansonia apartment. In the fifth incident, the defendant had vaginal intercourse with the victim in the apartment while she was visiting him there. The victim testified that no ropes were used because she had thrown them into the sewer after the previous incident so that it would not "happen again." This testimony was corroborated by the subsequent discovery of two pieces of rope in a storm sewer directly in front of the apartment. There was also expert testimony that the victim's vaginal opening was enlarged, consistent with repeated incidents of vaginal penetration by a penis, and that the size of the opening was inappropriate for a physically immature child of the victim's age.
The defendant first claims that the trial court erred in granting the state's motion to quash the defendant's subpoena duces tecum for certain police records regarding the victim's maternal uncle, who had been arrested for sexually assaulting his own children. The charges against the uncle were subsequently nolled, and the records pertaining to those charges were statutorily erased pursuant to General Statutes § 54-142a(c).  The defendant claims that these records were necessary to show that the victim's uncle, rather than he, committed the crimes with which he was charged, and that the denial of access to the records violated his right to produce witnesses on his behalf and his right to a fair trial. We disagree.
[20 Conn.App. 741] This claim arises out of the following procedural context. The defendant served a subpoena duces tecum on the Seymour police department for the police records regarding the arrest, on or about November 20, 1982, of the victim's uncle, G, for sexually assaulting his own children. The state moved to quash the subpoena on the grounds that, because the charges had been nolled, the records were statutorily erased and not disclosable to the defendant, and that the records were irrelevant to the issues in the case. The defendant claimed that, during "some of the dates" on which he was alleged to have committed the crimes in question, the victim was living with her mother, who was the sister of G, that "at a point in time near to when the allegations arose" G was charged with sexually assaulting his own children, and that G "had substantial access [and] was even living in the same residence with the alleged victim in this case or around the corner and was with her a lot." Relying on State v. Douglas, 10 Conn.App. 103, 522 A.2d 302 (1987), and State v. Echols, 203 Conn. 385, 524 A.2d 1143 (1987), the defendant claimed that he was constitutionally entitled to examine the records in order to determine whether there was a possible similarity to the offenses alleged in this
case, thereby giving rise to the possibility "that someone else may have committed [these] crime[s]." He argued that, if G was living in the same household, and if the records disclosed that his conduct with his own children was similar to the manner in which the acts of intercourse were described in this case, that would be sufficient to show that G, and not the defendant, committed the crimes. The trial court granted the state's motion to quash. The defendant did not specifically request the court to examine the records in camera or to mark them for identification.
It is undisputed that the charges against G had been nolled, and that the records were erased pursuant to [20 Conn.App. 742] General Statutes § 54-142a(c). It is also undisputed that the defendant does not fall within any of the statutory exceptions to that statute. See General Statutes § 54-142a(f) and (g), and § 54-142c(b).
Such erasure does not, however, necessarily create a shield that is impermeable to a claim of constitutional deprivation. See State v. Douglas, supra. We conclude that, although a criminal defendant may in appropriate circumstances make a showing sufficient to trigger an in camera review of statutorily erased records, the defendant in this case did not make such a showing.
In State v. Douglas, supra, this court considered the tension between the criminal records erasure statute and the constitutional right of confrontation through cross-examination. We held that, on the facts of that case, it was error for the trial court to decline to review in camera the previous trial testimony of two state's witnesses in the separate trial of an alleged coparticipant in the crimes charged. The earlier trial had resulted in an acquittal of the alleged coparticipant. The purpose of the review we ordered was to determine whether that prior testimony should have been disclosed to the defendant. Id., 10 Conn.App. at 117-18, 522 A.2d 302.
Although in Douglas we did not require a preliminary showing of inconsistency in order to trigger the court's in camera review; id., at 116, 522 A.2d 302, it was implicit in the facts of that case that the statutorily shielded transcript directly related to the crimes charged against the defendant, since that transcript contained the testimony of two of the state's witnesses regarding those same crimes. Furthermore, the court in Douglas drew heavily on State v. Pierson, 201 Conn. 211, 514 A.2d 724 (1986), and State v. Esposito, 192 Conn. 166, 471 A.2d 949 (1984). In those cases, the court, in resolving the tension between the right of confrontation and the psychiatric privilege, required a showing of a reasonable[20 Conn.App. 743] basis in the evidence in order to trigger either an in camera review of psychiatric records or a voir dire of psychiatric personnel. State v. Douglas, supra, 10 Conn.App. at 110, 522 A.2d 302.
In State v. James, 211 Conn. 555, 579, 560 A.2d 426 (1989), our Supreme Court considered whether the trial court erred in refusing to review in camera the school records of the victim of the crimes charged. The court held that, although it was error for a trial court to refuse "to examine documents in camera where a sufficient foundation has been laid to indicate a reasonable likelihood that they contain material relevant to the case or useful for impeachment of a witness"; id.; the defendant had not made a showing "sufficient to establish a reasonable ground to believe that [the school records] may have contained anything related to the issues at trial or the credibility of [the victim]." Id.
Reading Douglas and James together, we conclude that, in order to trigger an in camera review of records shielded by General Statutes § 54-142a(c), the defendant must first establish some reasonable likelihood that the records contain information relevant to the case. Here, the defendant claimed that the records were relevant to a claim that someone other than he had committed the crimes charged. Evidence of such third party culpability is a component of a defendant's due process right to present a defense. State v. Echols, supra. For third party evidence to be admissible, ...