Opinion
No. CR01-297973
July 23, 2003
MEMORANDUM OF DECISION RE MOTION FOR NEW TRIAL
Before the court is the defendant's motion for new trial pursuant to Practice Book § 42-53(a)(2). On March 8, 2003, the defendant, after a jury trial, was found guilty of sexual assault in the first degree in violation of General Statutes § 53a-70 (a)(2) and risk of injury to a minor in violation of General Statutes § 53-21 (a)(1). The victim is twelve years old, and the assaults occurred over a period of three years, when the victim was approximately eight to ten years old. On March 12, 2003, the defendant timely filed a motion for new trial and later filed an amendment to that motion on April 2, 2003. The defendant requests that the court grant a new trial on the basis of the following three alleged errors at trial:
Practice Book § 42-53(a)(2) provides: "Upon motion of the defendant, the judicial authority may grant a new trial if it is required in the interests of justice. Unless the defendant's noncompliance with these rules or with other requirements of law, bars his or her asserting the error, the judicial authority shall grant the motion . . . (2) For any other error which the defendant can establish was materially injurious to him or her."
(1) A witness improperly testified as a constancy of accusation witness, based on State v. Samuels, 75 Conn. App. 671, 817 A.2d 719 (2003), because statements made to her occurred after the alleged incidents were reported to the police;
(2) Evidence and pictures detailing the victim's vagina were irrelevant and thus improperly admitted, because the victim did not testify at trial as to any vaginal contact;
(3) Testimony of a witness regarding details of the sexual assaults was not admissible under the medical treatment exception to the hearsay rule, because the victim's disclosures to that witness were not made "within the chain of medical care" as required by Connecticut Code of Evidence § 8-3 (5).
Connecticut Code of Evidence § 5-3 (5) provides in relevant part: "A statement made for purposes of obtaining medical treatment or advice pertaining thereto and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof, insofar as reasonably pertinent to the medical treatment or advice."
I.
Constancy of Accusation Testimony
In State v. Samuels, supra, 75 Conn. App. 685, the Connecticut Appellate Court held that "once the formal complaint has been lodged . . . there should be no more constancy of accusation witnesses." The defendant argues that Samuels applies to the present case and that the court therefore erred in allowing the testimony of Ms. Judith Kanz as a constancy of accusation witness.
"The constancy of accusation doctrine has a long history in Connecticut, but its underlying rationale, questionable from the outset, has come under increased scrutiny in recent years . . . The rationale stems from the ancient belief that a victim of a violent crime would naturally cry out immediately after an assault and that, by implication, if such a victim did cry out, her complaint was more likely true . . . That belief led to the corresponding supposition that a jury would treat with skepticism one who did not cry out soon after she was attacked . . . So profound was the belief in that sociological phenomenon, and so entrenched was the distrust in a victim's delayed complaint, that proof of `hue and cry' became a formal prerequisite for the prosecution of any rape case." (Citations omitted.) State v. Samuels, supra, 75 Conn. App. 674-75 (2003)
"With the advent of the hearsay rule in the early 1800s, an exception was carved out for those fresh complaints, partially as a means to dispel the jury's inclination to distrust the victim if there were a delay in reporting . . . Its use thereby forestalled the inference that the victim's silence was inconsistent with her present formal complaint of rape . . . In effect, the fresh complaint rule allowed a victim to testify that she had told others about an alleged sexual assault as anticipatory rebuttal against an attack on her credibility, either by the defendant or by the unspoken bias of jurors who, it was presumed, would tend to discredit a victim's claims unless she offered testimony that she had complained soon after the assault." (Citations omitted; internal quotation marks omitted.) Id., 675.
"The fresh complaint rule, in turn, spawned our current constancy of accusation doctrine. Accordingly, those to whom a victim purportedly made a complaint are permitted to testify that such a complaint was, in fact, made to them. That testimony is permitted to corroborate the victim's testimony that she made such a complaint. Unlike courts in the majority of states, Connecticut courts had, historically, allowed constancy testimony for both the fact that a victim reported an assault and the details of what was said by the victim to the witness . . . Thus, the witness to whom the victim purportedly complained was permitted to testify as to the details of the victim's complaint to corroborate the victim's testimony that she did, in fact, complain as stated. Recently, however, our courts' attitude to such testimony has become more circumspect, and, although the central element of the doctrine has been maintained, the scope of it has been consciously restricted." Id., 675-76.
"If the purpose of the doctrine is to combat stereotypes held by the jurors regarding nonreporting victims, once a victim has officially reported the crime to the police, we do not believe any reasonable function can be further served by the admission of postcharge constancy testimony." Id., 684-85. "As the defense argues, once the formal complaint has been lodged, according to the doctrine's rationale, there should be no more constancy of accusation witnesses. Not only does the admission of that postofficial complaint constancy testimony not contribute to the rebuttal of any sexist bias, but it provides an unwarranted opportunity for the accumulation of redundant testimony prejudicial to the defendant." (Emphasis added.) Id., 585.
However, the question becomes whether State v. Samuels, supra, 75 Conn. App. 671, decided subsequent to the jury verdicts in this case, applies.
"As a rule, judicial decisions apply retroactively. Indeed, a legal system based on precedent has a built-in presumption of retroactivity." (Citation omitted; internal quotation marks omitted.) State v. Ryerson, 201 Conn. 333, 339, 514 A.2d 337 (1986). "Although it is true that judgments that are not by their terms limited to prospective application are presumed to apply retroactively . . . this general rule applies to cases that are pending and not to cases that have resulted in final judgments." (Citation omitted; emphasis added.) Marone v. Waterbury. 244 Conn. 1, 10-11, 707 A.2d 725 (1998).
"In a criminal proceeding, there is no final judgment until the imposition of a sentence." State v. Jackson, 32 Conn. App. 724, 731, 630 A.2d 164 (1993). In State v. Jackson, the defendant argued that the trial court improperly found that he did not show sufficient evidence of drug dependency. The Court of Appeals agreed, in light of State v. Hart, 221 Conn. 595, 605 A.2d 1366 (1992), which lowered the standard to make a showing of drug dependency. "The holding in Hart became the law of this state before the judgment of the trial court became an appealable final judgment. Because final judgment was not rendered in this case until after Hart was decided by our Supreme Court, a retroactive application of Hart is not involved." (Citations omitted.) State v. Jackson, supra, 32 Conn. App. 731. The court went on to note that "[h]ad the Hart opinion not been issued before final judgment was rendered in this case, we would nevertheless be bound to apply Hart retroactively. As a rule, judicial decisions apply retroactively . . . Indeed, a legal system based on precedent has a built-in presumption of retroactivity . . . The fundamental basis for testing whether a decision should be given retrospective effect is whether the rule which it lays down goes to the fairness of the trial — the very integrity of the fact-finding process." (Citations omitted; internal quotation marks omitted.) State v. Jackson, supra, 32 Conn. App. 732 n. 6.
In the present case, the jury returned a guilty verdict on March 8, 2003, and the defendant is currently awaiting sentencing. Samuels was decided on March 25, 2003. Since final judgment has not yet been rendered, the court finds that Samuels is applicable. The victim's statements were made after the alleged crime was reported to the police. Thus, the defendant argues, that Ms. Kanz' testimony was improperly admitted under the constancy of accusation doctrine.
II.
Relevancy
The State introduced evidence detailing the examination of the victim's vagina, as well as pictures produced during that examination. The defendant argues that this evidence was irrelevant because the victim did not mention anything about her vagina during her trial testimony.
During her testimony the child victim testified several times about having "sexual intercourse" with the defendant. At one point, when asked specifically what she meant by "sexual intercourse," the victim testified that the defendant "would have sex, like put his private into my butt." Subsequently, the state called Judith Kanz, a certified pediatric nurse practitioner at the Children's Health Center for St. Mary's Hospital, as a witness. Ms. Kanz had prepared a report following an examination of the victim on December 11, 2000, and testified that the victim had disclosed to her that she had been vaginally, anally and orally penetrated by the defendant.
"Relevant evidence is defined in the Connecticut Code of Evidence, § 4-1, as evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence. The commentary to that section makes it clear that there are two separate components of relevant evidence at common law, probative value and materiality. Evidence is relevant if it tends to support the conclusion even to a slight degree . . . Materiality is determined by the pleadings (or information) and the applicable substantive law." (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Gibson, 75 Conn. App. 103, 110, 815 A.2d 172 (2003). The General Statutes define "sexual" as "vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex." General Statutes § 53a-65 (2). The ultimate issue in the present case is whether the defendant sexually assaulted the victim. Whether or not the victim's genitals showed evidence of sexual intercourse is material to that determination. If the evidence of the examination of the victim's vagina, as well as pictures produced during that examination provided evidence of sexual intercourse, then it would tend to support the conclusion that a sexual assault had occurred, and would therefore be relevant.
This court will adhere to its trial ruling that this evidence was relevant to aid the trier in its determination as to the ultimate issue of whether a sexual assault had occurred.
III.
Medical Treatment Exception
The next issue is whether the court erred in admitting testimony of Ms. Kanz under the medical treatment exception to the hearsay rule. "Out-of-court statements made by a patient to a physician may be admitted into evidence if the declarant was seeking medical diagnosis or treatment, and the statements are reasonably pertinent to achieving these ends." (Emphasis added.) State v. DePastino, 228 Conn. 552, 565, 638 A.2d 578 (1994). See also Connecticut Code of Evidence § 8-3 (5)
"In DePastino, our Supreme Court held that [i]n cases of sexual abuse in the home, hearsay statements made in the course of medical treatment which reveal the identity of the abuser, are reasonably pertinent to treatment and are admissible . . . Although the facts of DePastino were limited to statements made to a physician in the course of obtaining medical treatment, the rule was expanded subsequently in State v. Cruz, 260 Conn. 1, 792 A.2d 823 (2000). In Cruz, our Supreme Court held that statements provided to a social worker operating within the chain of medical care were properly admissible under the medical treatment exception to the hearsay rule, notwithstanding the fact that such individual was not herself a physician." (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Gonzalez, 75 Conn. App. 364, 376, 815 A.2d 1261 (2003). "Pursuant to Cruz, the sole consideration to be evaluated in determining the admissibility of evidence under the medical treatment exception is whether the statements are made for the purpose of obtaining medical diagnosis or treatment and are pertinent to the diagnosis or treatment sought . . . Thus, in order to assess the [defendant's] argument . . . it is necessary to determine whether [the] interview of the [victim] occurred within the chain of medical care." (Emphasis added; internal quotation marks omitted.) Id., 366-67.
In State v. Cruz, the victim disclosed sexual abuse to her mother on December 14, 1995, and her mother immediately sought medical help. The victim was then referred to the hospital by her physician, where she was interviewed by a social worker on December 14 and 22, 1995. In the present case, the victim gave a statement to the police on November 29, 2000, and within 24 hours she visited the hospital and was examined by a doctor. It wasn't until December 11, 2000, eleven days later, that she was seen by Ms. Kanz, after being referred by the Department of Children and Families. The defendant argues that it was the first examination, and not the one conducted by Ms. Kanz, that is contemplated by the medical treatment exception to the hearsay rule. The State argues that the second examination was necessary to observe injuries or sexually transmitted diseases, but, according to the defendant, this would have been done during the first examination.
Here, the witness, Judith Kanz, was qualified to testify as an expert, without objection, in the field of forensic medical examinations. Ms. Kanz, the Director of the Child Abuse Assessment Center of St. Mary's Hospital, Waterbury, is a certified pediatric nurse practitioner who holds a Master of Science degree (Yale). She has conducted over one thousand child forensic medical examinations.
Although the victim was not seen by Ms. Kanz until 12 days after she reported the assault to the police, and 11 days after she first sought medical treatment, it is reasonable that a victim of sexual abuse might seek medical care and/or follow-up tests for sexually transmitted diseases at a later date. Thus, it is also reasonable to conclude that the statements were made "within the chain of medical care."
Conclusion
Although the testimony and other evidence introduced through the expert witness Judith Kanz was not properly admissible as constancy of accusation evidence based on the Samuels rationale, identical testimony and evidence was properly admissible under the medical treatment exception to the hearsay rule.
Accordingly, the defendant's motion for new trial is denied.
MICHAEL HARTMERE, JUDGE