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State v. Norman P.

Court of Appeals of Connecticut

December 6, 2016

STATE OF CONNECTICUT
v.
NORMAN P.[*]

          Argued October 6, 2016

         Appeal from Superior Court, judicial district of Hartford, Kwak, J.

          Marina L. Green, assigned counsel, with whom were Emily Graner Sexton, assigned counsel, and, on the brief, Michael S. Taylor, assigned counsel, for the appellant (defendant).

          James A. Killen, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Anne Mahoney, senior assistant state's attorney, for the appellee (state).

          Sheldon, Prescott and Flynn, Js.

          OPINION

          PRESCOTT, J.

         The defendant, Norman P., appeals from the judgment of conviction, rendered after a jury trial, of three counts of sexual assault in a spousal relationship in violation of General Statutes § 53a-70b, one count of assault of an elderly person in the second degree in violation of General Statutes § 53a-60b, and one count of assault of an elderly person in the third degree in violation of General Statutes § 53a-61a. On appeal, the defendant claims, among other things, that the trial court improperly (1) refused to admit into evidence his full written statement to the police after portions of the statement had been introduced by the state, and (2) refused to mark for identification the complainant's privileged records from Interval House, an organization that provides counseling and other services to domestic violence victims, as well as declined to conduct an in camera inspection of these records.[1]We agree that the court improperly excluded the defendant's complete statement to the police, and, accordingly, we reverse the judgment of conviction and remand the case for a new trial. Because one of the remaining evidentiary issues is likely to arise again on remand, we address that claim as well.[2] To that end, we agree with the defendant that the court improperly refused to mark the Interval House records for identification and improperly refused to conduct an in camera review of the Interval House records after the defendant made the requisite threshold showing pursuant to State v. Esposito, 192 Conn. 166, 179-80, 471 A.2d 949 (1984).

         Given the evidence presented at trial, the jury reasonably could have found the following facts. On the evening of Thursday, August 2, 2012, the defendant was at home with the complainant, who was the defendant's sixty-one year old wife, and their twenty year old son, B.P., who had a strained relationship with the defendant. A dispute over the operation of the air conditioning system arose between the defendant and B.P. A verbal argument between the two, in which the complainant interceded on B.P.'s behalf, soon escalated into a physical altercation. Eventually, in an effort to avoid calling the police and possibly having the two men arrested, the complainant told B.P. that it would be best if he left the house and went to his grandmother's residence. B.P. then left.

         Thereafter, the defendant approached the complainant and, using his closed fist, punched her in the chest with such force that it took her breath away. The complainant punched the defendant back, injuring her shoulder in the process, and the defendant began hitting and jabbing the complainant repeatedly in the midsection with the television remote control, causing the complainant severe bruising. The complainant eventually retreated to the upstairs bedroom where she usually slept, away from the master bedroom where the defendant usually slept.

         Several minutes later, the defendant entered the complainant's bedroom where she was lying down on the bed, pulled the covers off of her, and stated that he was ‘‘going to show [her] something.'' He then ripped off the nightgown she was wearing, prompting the complainant to attempt to push and kick him away from her. The complainant was unsuccessful in her efforts, however, because the defendant was physically stronger than her, one of her shoulders had no strength as a result of it having been injured earlier, and the defendant was restraining her other uninjured hand. The defendant then began to insert his finger into the complainant's rectum, and the complainant pleaded with him to stop because he was hurting her. The defendant refused and threatened that the more the complainant protested, the harder he would continue the penetration. The complainant soon realized that the defendant was penetrating her with more than one finger and that he was also curling his fingers inside of her, like a hook, pulling at her. At some point during the assault, the complainant saw that she was emitting blood and feces onto the bedsheet.

         After a period of time, the defendant directed the complainant to go to the bathroom to wash herself off. He then walked her into the bathroom and to the bathtub, all the while refusing to remove his finger from her rectum. Filling the tub with water and directing the complainant to get in, the defendant proceeded to remove his own clothing and enter the tub with her. The defendant then pulled the complainant onto his lap and began to manipulate a bar of soap into her rectum, although the complainant did not know this at the time because she could not see what he was doing behind her. Consumed with pain, the complainant kept trying to remove the defendant's hand from her rectum, but was unable to overcome his strength. Eventually, the complainant complained that her stomach was cramping and that she needed to move her bowels, so the defendant released her and allowed her to sit on the toilet. In addition to emitting blood and feces, the complainant expelled the bar of soap into the toilet, thereby realizing for the first time that he had pushed the soap inside of her.

         Afterward, the defendant led the complainant back into the complainant's bedroom, and the complainant, overcome with exhaustion, could not attempt to fight him any longer. The defendant proceeded to lean the complainant over the bed and penetrate her rectum with his penis and fingers. After the defendant stopped the assault, he fell asleep on the bed, and the complainant lay crying on the floor.

         Eventually, near daylight, the complainant got up, got dressed, and began wandering on foot around the streets in her neighborhood. The complainant attempted to telephone a friend of hers and a friend of the defendant, but neither answered, so the complainant called the defendant's brother, and told him about the assault. At some point while she was walking, the complainant felt ‘‘a gush [of wetness] come down in [her] pants'' and, after returning to the house, discovered that she had had an involuntary bowel movement that was mixed with blood and ‘‘white stuff, '' which she assumed was from the bar of soap. She cleaned herself off and lay down on the couch in the basement until it was time for her to go to work in the afternoon.

         Although the complainant had difficulty walking because of her injuries, she went to work that Friday, Saturday, and Sunday because she did not want to be alone in the house with the defendant. On Monday evening, the complainant confided in her close friend and coworker about the assault, and accepted the friend's invitation to stay the night at her house. The next day, on Tuesday, the complainant saw her primary care physician, told him of her injuries, and informed him that they had been the result of an assault by the defendant. The doctor diagnosed the complainant with a rectal tear and ultimately referred her to Interval House for counseling.

         On Thursday, almost one week after the assault, the complainant took her car to a shop to be serviced. While at the service shop, the complainant experienced another involuntary bowel movement and decided at that point that she would report the assault to the police. The complainant then drove straight from the service shop to the police station, where the authorities took her statement and, thereafter, accompanied her to her home to collect evidence. When the defendant arrived home from work that day, he encountered the police outside his house. Upon request, he followed a police detective to the police station. During an interview with the detective, he gave a sworn written statement concerning the events that occurred on August 2 and 3, 2012. The following day, the defendant was arrested pursuant to an arrest warrant.

         Prior to trial, on December 5, 2014, the state filed a substitute long form information, charging the defendant with four counts of sexual assault in a spousal relationship in violationof § 53a-70b, one count of criminal attempt to commit sexual assault in a spousal relationship in violation of General Statutes §§ 53a-49 and 53a-70b, one count of second degree assault of an elderly person in violation of § 53a-60b, and one count of third degree assault of an elderly person in violation of § 53a-61a. During his jury trial, the defendant testified that the sexual encounter with his spouse had been consensual, and that her rectal injuries had been caused by the defendant using his fingers to retrieve a small piece of soap that had accidentally slipped inside of her when the defendant was lubricating her anal area for intercourse. Following the trial, the defendant was convicted on all but two of the counts.[3] He was sentenced to a total effective term of thirty-six years of imprisonment, execution suspended after twenty-four years, with ten years of probation. This appeal followed. Additional facts and procedural history will be set forth as necessary.

         I

         We turn first to the defendant's claim that the court improperly refused to admit the defendant's complete sworn statement to the police after other portions of the statement had been introduced by the state during trial. Specifically, the defendant argues that the court misinterpreted § 1-5 (b) of the Connecticut Code of Evidence and that, pursuant to § 1-5 (b), the entire statement should have been admitted in order for the jury to understand the context of those portions that were previously introduced by the state during its cross-examination of the defendant. In response, the state argues that the court properly ruled that the police statement constituted nothing more than a prior consistent and self-serving hearsay statement offered by the defendant to boost his favorable testimony through repetition. The state further asserts that ‘‘nothing in the defendant's police statement provided any ‘context' essential to a proper understanding of the inaccuracies and omissions pointed out by the state on cross-examination and fully conceded by the defendant on cross-examination, with an explanation.'' We agree with the defendant.

         The following additional facts and procedural history are relevant to this claim. During cross-examination of the defendant, the prosecutor questioned him at length about what was included and what was not included in his signed statement to the police, dated August 9, 2012. The prosecutor asked the defendant to verify that he made several declarations about the events that occurred on August 2 and 3, 2012, in his signed police statement, including the type of sexual intercourse he engaged in with the complainant, when he used the bar of soap, the state of the bedroom where the alleged assault occurred, whether the complainant ever told him she was in pain, when he next saw the complainant after the alleged assault, and what occurred during his altercation with B.P. on the night in question. Although the defendant confirmed for the jury that he had, in fact, told the police many of these details, he disputed the accuracy of other assertions contained in the written account. For example, when the prosecutor asked him if ‘‘you signed the statement that said that after the vaginal intercourse, you went to the bathroom to look for a bar of soap, '' the defendant replied: ‘‘I told the police it wasn't a bar. A piece of soap, I told the police. . . . [The police officer] . . . said in America it is called a bar.'' Similarly, when the prosecutor asked if ‘‘you told the police that you had penile/vaginal sex with your wife, '' the defendant attested that ‘‘[t]hat was a mischaracterization'' and that ‘‘[t]hose words were inserted by the police. Those are not my words.''

         When the prosecutor questioned the defendant about details concerning the alleged assault that he had testified to at trial, but were not contained in his signed statement, the defendant repeatedly made clear that those specifics were missing from his statement because he answered only the precise questions that the police interviewer asked of him and did not offer extra details that went beyond the limited scope of each inquiry. For instance, in one exchange, the following colloquy took place between the prosecutor and the defendant:

‘‘Q. And you never told the police that, though, did you?
‘‘A. The police did not ask me detailed questions. It was like giving-the question that the police officer asked me . . . I gave them that answer.
‘‘Q. So, for the first time, you're claiming that Monday night into Tuesday morning you saw your wife at the house?
‘‘A. I'm not claiming [that] for the first time.
‘‘Q. Well, sir, you didn't tell the police on August 9th when they came to your house at 1 o'clock in the morning that your wife had been in ...

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