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State v. Jeffrey H.

Court of Appeals of Connecticut

September 26, 2017

STATE OF CONNECTICUT
v.
JEFFREY H.[*]

          Argued March 13, 2017

          Matthew D. Dyer, with whom, on the brief, was Kris-ten Mostowy, for the appellant (defendant).

          Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were David S. Shepak, state's attorney, and Dawn Gallo, supervisory assistant state's attorney, for the appellee (state).

          Sheldon, Mullins and Harper, Js.

         Syllabus

         Convicted, following a jury trial, of three counts of the crime of sexual assault in the first degree in connection with his alleged sexual abuse of his daughter, N, the defendant appealed to this court. On the eve of the defendant's scheduled trial date, the state discovered that the statute of limitations on the conduct supporting the charges in the original information had expired, and the court granted the state's request for a continuance. During the continuance, the state requested that the state police detective assigned to the case, F, conduct an additional interview with N, and, in that interview, N made allegations against the defendant of assaults that occurred in a time period that fell within the statute of limitations. On appeal, the defendant claimed, inter alia, that the trial court violated his constitutional right to present a defense by preventing him from cross-examining F relating to whether N made the new allegations against the defendant only upon learning that the statute of limitations barred her original allegations, and by excluding testimony from S, a physician, and a letter S had written, which included a notation that N had a history of a previous sexual assault. Held:

1. The trial court did not abuse its discretion or violate the defendant's constitutional right to present a defense by excluding testimony concerning the statute of limitations issue that the defendant sought to introduce through the cross-examination of F; the defendant was permitted to conduct a sufficient inquiry into his defense theory that N had fabricated the new allegations, including eliciting testimony from F about the continuance of the originally scheduled trial and F's involvement in the case, and evidence that the state had asked F to obtain another statement from N after the continuance had been granted, and the defendant failed to cross-examine N regarding her motivations for detailing the abuse alleged in her latest statement to F or if she changed her allegations due to pressure from authority figures, and failed to ask F, who could not testify regarding N's motivations, whether he had pressured N to make the new allegations because of a problem with the statute of limitations.
2. The trial court did not abuse its discretion in excluding as irrelevant S's testimony and letter, which the defendant sought to admit to rebut certain consciousness of guilt evidence presented by the state; the foundation for S's letter was wholly speculative, as S was unable to provide any insight as to where or from whom he had obtained the information in the letter about N's history of sexual abuse, or to which of certain separate instances of sexual assault involving N the notation referred, and the defendant failed to demonstrate any open and visible connection between S's notation about N's history of sexual abuse and the state's consciousness of guilt evidence.
3. The defendant could not prevail on his claim that the trial court abused its discretion and deprived him of his right to due process by admitting into evidence certain out of context interview statements that he made following a polygraph examination he had taken and failed; that court properly concluded that the defendant's statements, which referred to the fact that he felt sexually aroused by N and that he locked himself in his bedroom because he was afraid N was going to kill him, qualified as an exception to the rule against hearsay for an admission by a party opponent under the applicable provision of the Code of Evidence (§ 8-3 [1]), as they were relevant and material to show the defendant's consciousness of guilt and were not so prejudicial as to risk injustice as a result of their admission, and the court excluded any statements made in response to the fact that the defendant had failed the polygraph, including any statement related to his change of response from his earlier full denial of any inappropriate behavior.

         Procedural History

         Substitute information charging the defendant with three counts of the crime of sexual assault in the first degree, brought to the Superior Court in the judicial district of Litchfield and tried to the jury before Marano, J.; verdict and judgment of guilty, from which the defendant appealed to this court. Affirmed.

          OPINION

          HARPER, J.

         The defendant, Jeffrey H., appeals from the judgment of conviction, rendered after a jury trial, of three counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1). On appeal, the defendant claims that the trial court (1) abused its discretion by preventing him from pursuing certain inquiries on cross-examination, thereby violating his sixth amendment right to present a defense, and (2) abused its discretion by admitting into evidence out-of-context portions of his interview conducted following a polygraph examination, in violation of his right to due process. We affirm the judgment of the trial court.

         The jury reasonably could have found the following facts. The victim, N, is the defendant's daughter. The defendant repeatedly sexually assaulted N from the time she was seven or eight years old until she was eleven years old. Most of the assaults during this period took place when N and the defendant went fishing together. The assaults recommenced when N was approximately twelve or thirteen years old and continued until she was approximately seventeen years old. Many of the assaults included threats of violence against N, her mother, and her sister. On several occasions, the defendant warned N that if she told anyone about the assaults, he would kill her, her mother, and her sister. On occasion, the defendant brandished a weapon, including a double-barreled shotgun, while committing an assault.

         N did not report the defendant's conduct until 2009. At that time, the defendant and N's mother had divorced, and N was living with her mother and her sister in Massachusetts. N kept a journal as part of a course of psychiatric treatment that she received from Stefanie Lindahl, a psychiatrist. N documented her father's conduct in the journal and shared it with Lindahl. N reported the assaults to the police on July 31, 2009.

         Detective William Flynn, a major crimes detective with the Connecticut State Police and a member of the child abuse investigative team, was assigned to investigate N's report. Throughout the investigation, Flynn interviewed N and took written statements from her. At the request of the state's attorney, Flynn used his police vehicle to drive N as she directed him to various locations where the abuse had occurred. These trips prompted N to remember additional incidents of sexual assault perpetrated by the defendant.

         The defendant was arrested on September 29, 2010. The original information charged the defendant with offenses that were alleged to have occurred between March, 1997 and 2000. The state filed a substitute long form information on March 5, 2015, [1] charging the defendant with three counts of sexual assault in the first degree in violation of § 53a-70 (a) (1) for offenses occurring in 2002, 2003, and 2004.

         On March 31, 2015, the jury found the defendant guilty of three counts of sexual assault in the first degree. The court sentenced the defendant to a term of twelve years of imprisonment and five years of special parole on each count, to run consecutively, resulting in a total effective sentence of thirty-six years of imprisonment and fifteen years of special parole. This appeal followed. Additional facts will be set forth as necessary.

         I

         The defendant first claims that the trial court made two erroneous evidentiary rulings in violation of his right, under the sixth and fourteenth amendments to the federal constitution, to present a defense. Specifically, the defendant asserts that the trial court improperly prohibited him from cross-examining Flynn about a statute of limitations issue that the state had discovered on the eve of the original trial date. In addition, the defendant argues that the trial court erroneously barred testimony from Joseph C. Scirica, one of N's former treating physicians, regarding a notation in a 2006 letter in his file that N had a ‘‘remarkable history of a molestation/sexual assault.'' The state responds that the trial court properly excluded both the evidence relating to the statute of limitations and Scirica's letter. For the reasons that follow, we agree with the state.

         The defendant's claims implicate both his constitutional right to present a complete defense, as well as the proper constraints that the rules of evidence impose on that right. Therefore, our analysis has two parts. First, we must determine whether the trial court abused its discretion in making certain evidentiary rulings regarding the statute of limitations and Scirica's letter. Second, if we find that the trial court ...


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