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State v. Norman P.

Supreme Court of Connecticut

July 17, 2018

STATE OF CONNECTICUT
v.
NORMAN P. [*]

          Argued January 16, 2018

         Procedural History

         Substitute information charging the defendant with four counts of the crime of sexual assault in a spousal relationship, and with one count each of the crimes of attempt to commit sexual assault in a spousal relationship, assault of an elderly person in the second degree and assault of an elderly person in the third degree, brought to the Superior Court in the judicial district of Hartford, where the court, Kwak, J., denied the defendant's motion for disclosure of certain confidential records; thereafter, the case was tried to the jury before Kwak, J.; verdict and judgment of guilty of three counts of sexual assault in a spousal relationship, and one count each of assault of an elderly person in the second degree and assault of an elderly person in the third degree, from which the defendant appealed to the Appellate Court, Sheldon, Prescott and Flynn, Js., which reversed the trial court's judgment and remanded the case for a new trial, and the state, on the granting of certification, appealed to this court. Affirmed.

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

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

          Palmer, McDonald, D'Auria, Mullins, Kahn and Vertefeuille, Js.

          OPINION

          KAHN, J.

         The dispositive issue in this appeal is whether the Appellate Court properly concluded that the trial court lacked discretion to refuse to mark records for identification following the court's determination that the defendant, Norman P., had failed to make the requisite showing to require an in camera review of those records. State v. Norman P., 169 Conn.App. 616, 639-40, 151 A.3d 877 (2016). We conclude that the trial court had no such discretion. This certified[1]appeal arises from the defendant's conviction 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. The state claims that the Appellate Court incorrectly concluded that the trial court had improperly declined to conduct an in camera review of the complainant's privileged records from Interval House, an organization that provides counseling and other services to domestic violence victims, and that the trial court also improperly declined to mark those records for identification. The state additionally challenges the Appellate Court's conclusion that, in declining to admit into evidence the defendant's entire written statement to the police, the trial court misinterpreted § 1-5 (b) of the Connecticut Code of Evidence and our relevant case law applying that rule. We affirm the judgment of the Appellate Court on the basis of our conclusion that the trial court improperly refused to mark for identification the complainant's privileged records from Interval House, and that the court further abused its discretion in declining to review those records in camera. Because the issue is likely to arise on remand, we also address the state's claim that the Appellate Court improperly concluded that the defendant's entire written statement was admissible pursuant to § 1-5 (b). Although we agree with the Appellate Court that the trial court misinterpreted § 1-5 (b) and our relevant case law applying that rule, we disagree that the entire statement should have come into evidence pursuant to that rule. To the contrary, our application of § 1-5 (b) leads us to conclude that only a portion, rather than the entirety, of the defendant's prior statement should have been admitted.

         The Appellate Court set forth the following relevant facts, which reasonably could have been found by the jury. ‘‘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], who had a strained relationship with the defendant. A dispute over the operation of the air conditioning system arose between the defendant and [B]. A verbal argument between the two, in which the complainant interceded on [B'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] that it would be best if he left the house and went to his grandmother's residence. [B] 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 [physician] diagnosed the complainant with a rectal tear and . . . 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.'' Id., 619-22. Following the trial, the defendant was convicted of all but two of the counts. 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. Id., 623. The defendant appealed from the judgment of conviction to the Appellate Court.

         The Appellate Court concluded that the trial court misapplied the applicable law in denying the defendant's motion to introduce his entire statement to the police after the state had introduced portions of the statement during its cross-examination of the defendant. Id., 623. Specifically, the Appellate Court concluded that the trial court relied on an incorrect interpretation of this court's decision in State v.Jackson, 257 Conn. 198, 777 A.2d 591 (2001), for the proposition that when an opposing party has introduced portions of a statement, the remainder of a statement is not admissible pursuant to § 1-5 (b) of the Connecticut Code of Evidence if the remainder is comprised of ‘‘ ‘self-serving hearsay.' '' State v.Norman P., supra, 169 Conn.App. 627, 630. Applying de novo review, the Appellate Court concluded that the entire statement was necessary to place the portions introduced by the state into the proper context, and, therefore, the trial court improperly refused to admit the complete statement. Id., 632-33. The court also concluded that the error was harmful. Id., 634. Accordingly, the Appellate Court reversed the judgment of conviction and remanded the case for a new trial. Id., 644. Because the issue was likely to arise on remand, the Appellate Court also considered the defendant's claims ...


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