State v. Anwar S.
State v. Anwar S.
Opinion of the Court
Opinion
The defendant, Anwar S., appeals from the judgment of conviction rendered following a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (2) and one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (1). The defendant claims that the trial court improperly (1) denied his motion in limine to preclude laboratory results on the ground that they constituted testimonial hearsay, (2) precluded the admission of testimony pursuant to General Statutes § 54-86f regarding the past sexual history of the victim, T, and (3) denied the defendant’s motion to strike evidence as irrelevant. We affirm the judgment of the trial court.
The jury reasonably could have found the following facts. In 2008, T was residing in Connecticut along with her mother, her half brother and her stepfather, the defendant.
In July, 2008, T returned to the defendant’s home to spend time with the defendant and her half brother. During this visit the defendant sexually assaulted T by engaging in penile-rectal intercourse. After the July, 2008 visit, T relocated with her mother to Kansas and then ultimately relocated to California. Once in California, T told her mother that the defendant had assaulted her not just once, but multiple times during the three preceding years.
In December, 2008, T and her mother returned to Connecticut, and in January, 2009, T’s mother filed a complaint against the defendant with the police. The police department made an appointment for T to be seen at the Yale Child Sexual Abuse Clinic (clinic) for a forensic interview with a social worker. Because T reported information indicating that a medical examination should be performed, the social worker made another appointment for T to receive a medical examination at the clinic.
Janet Murphy, a pediatric nurse practitioner and the associate medical director for the clinic, conducted a medical examination of T. Murphy testified that she is a member of a multidisciplinary team (team), which is a group of professionals from different disciplines
Murphy stated that treatment, in a case involving possible sexual abuse, requires a confirmatory test to ensure that the results were not a false positive.
Before trial, the defendant filed a motion in limine to preclude evidence of the laboratory tests performed on T. The court denied the defendant’s motion, holding that the evidence was relevant and that the probative value outweighed the danger of unfair prejudice. In so holding, the court found that “[t]he defendant’s objections, as to the testing . . . the nature of the testing . . . who did the testing, and the protocols . . . [go] to the weight of the evidence . . . but does not go to the admissibility.” The results of the Yale clinic tests were admitted as business records, and the results of the California tests were admitted through Murphy’s testimony. Additional facts will be set forth as necessary.
I
The defendant asserts that the trial court improperly (1) admitted the Yale clinic laboratory results as physical evidence and (2) allowed Murphy to testify as to the results of the Yale and California chlamydia tests. Specifically, the defendant asserts that the results of both tests should have been precluded as testimonial hearsay under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
We first set forth the applicable standard of review. “Under Crawford v. Washington, supra, 541 U.S. 68, the hearsay statements of an unavailable witness that are testimonial in nature may be admitted under the sixth amendment’s confrontation clause only if the defendant has had a prior opportunity to cross-examine
“In Crawford, the Supreme Court declined to spell out a comprehensive definition of testimonial .... Instead, the court defined a testimonial statement in general terms: A solemn declaration or affirmation made for the purpose of establishing or proving some fact. . . . The court did note, however, three formulations of th[e] core class of testimonial statements . . . [1] ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially ... [2] extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions . . . [and 3] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial .... State v. Slater, [285 Conn. 162, 169-70, 939 A.2d 1105, cert. denied, 553 U.S. 1085, 128 S. Ct. 2885, 171 L. Ed. 2d 822 (2008)].
“[I]n Davis v. Washington, [547 U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006)] the United States Supreme Court elaborated on the third category and applied a primary purpose test to distinguish testimonial from nontestimonial statements given to police officials, holding: Statements are nontestimonial when
Addressing the defendant’s claims in turn, we first discuss whether the Yale clinic test results were testimonial in nature and, thus, whether their admission violated the defendant’s right to confront witnesses against him. The defendant argues that the reports in the present case are analogous to those in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009), and Bullcoming v. New Mexico, 564 U.S. 647, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011), and therefore fall within the core class of testimonial statements. We disagree.
Our inquiry turns on the reasonable expectation of the laboratory analysts, who prepared the report, under the circumstances in this case. See State v. Slater, supra,
In Melendez-Diaz, the police seized several small plastic bags containing cocaine from the defendant’s car and submitted these bags to a state laboratory for chemical analysis. Melendez-Diaz v. Massachusetts, supra, 557 U.S. 308. The certificates of analysis reported the weight of the bags as well as the substance found within. Id. The analysts who prepared the report were employed by a state laboratory and swore to the certificates before a notary public. Id. During trial, the prosecution submitted these certificates of analysis into evidence. Id., 309. The United States Supreme Court concluded that these documents were testimonial in nature. Id., 310. Although denominated “certificates,” the reports were clearly affidavits that were made for the propose of establishing some fact and, as such, “[w]ere functionally identical to five, in-court testimony.” Id., 310-11.
Similarly, in Bullcoming, the results of the defendant’s blood alcohol concentration test were introduced during trial through the five testimony of an analyst who did not perform the test. Bullcoming v. New Mexico, supra, 564 U.S. 651. The arresting officer obtained the defendant’s blood sample pursuant to a warrant and witnessed the blood draw. Id., 653. The law enforcement officer then provided this seized evidence to a state laboratory. Id. The laboratory’s report contained information filled in by the arresting officer, the
The laboratory results submitted into evidence in this case are distinguishable from the aforementioned cases in light of law enforcement’s limited involvement in facilitating the testing. In the present case, the analysis was requested by Murphy, a medical staff member,
Although the absence of an oath is not dispositive in determining whether a statement is testimonial, we conclude that the laboratory report in the present case lacks the indicia of formality that were present in both Melendez-Diaz and Bullcoming, and, thus, was not a testimonial statement. In this case, the report provided information including the patient’s name, the specimen source, the results of the analyses, the dates and time the specimens were collected and received, and the date and time the results were reported. The report, however, did not provide information regarding admissibility of laboratory results, it was not notarized and
We next address the defendant’s claim that the California clinic test results, admitted through Murphy’s testimony during trial, were testimonial in nature and, thus, their admission violated his constitutional right to confrontation. We conclude that the circumstances under which the California results were generated would not have led the analysts reasonably to believe that this report would be used primarily for prosecu-torial purposes.
As with the Yale tests, law enforcement’s involvement in initiating the California tests was attenuated at best. Murphy initiated the laboratory analyses when she referred T to Bruhn for confirmatory testing and treatment. Specimens were then collected at the California clinic and sent to a laboratory for analysis, and the results were ultimately reported by a laboratory analyst to the California clinic. In the context of multiple technicians working on a DNA profile, the United States Supreme Court has observed that “[w]hen the work of a lab is divided up [among multiple persons] it is likely that the sole purpose of each technician is simply to perform his or her task in accordance with accepted procedures.” Williams v. Illinois, U.S. , 132 S. Ct. 2221, 2244, 183 L. Ed. 2d 89 (2012). We find this principle instructive in the present case. Akin to the
Although the state concedes that the California reports serve a dual medical-prosecutorial purpose, the defendant has not pointed us to any evidence in the record that the laboratory analysts understood the request as such. Murphy testified that T’s laboratory results were reported to her verbally by T’s physician and not the laboratory analysts. These circumstances lessen the likelihood that the analysts were aware of either Murphy’s or Connecticut law enforcement’s involvement. Moreover, although this test served a dual purpose of confirming the Yale clinic results and providing medical treatment to T, Murphy’s testimony is devoid of any evidence that the California laboratory results bore the indicia of formality sufficient to render the results a solemn declaration and, consequently, testimonial. See Bullcoming v. New Mexico, supra, 564 U.S. 647; Melendez-Diaz v. Massachusetts, supra, 557 U.S. 305. Because we conclude that the statements were not testimonial, their admission into evidence did not violate the defendant’s right to confrontation.
II
The defendant next asserts that the trial court abused its discretion in precluding the admission of evidence
The state filed a motion in limine to preclude evidence regarding T’s collateral disclosures of a separate incident of sexual abuse committed by an individual referred to as “Uncle J.B.” The parties do not dispute that T, while residing in California, was sexually assaulted by Uncle J.B. in the latter half of 2008. T disclosed the incident, but the allegations were not pursued by her family or the California authorities. The state argued that because T’s allegations regarding Uncle J.B. involved both parties being fully clothed, the collateral allegation was not relevant as a means of explaining T’s chlamydia, and its admission would therefore prejudice T and confuse the jury.
The defendant filed an opposition to the state’s motion in limine and a motion to admit this evidence pursuant to § 54-86f. Specifically, the defendant argued that the collateral disclosures were relevant evidence regarding an alternative source for T’s advanced sexual knowledge and her sexually transmitted disease, as well as a means of questioning T’s and her mother’s credibility due to motive, bias or interest. The defendant also asserted that the assault committed by Uncle J.B. was relevant to his claim of actual innocence by establishing
The court granted the state’s motion in limine, thereby precluding evidence regarding the sexual assault committed by Uncle J.B. In reaching its conclusion, the court found the timing of Uncle J.B.’s assault relevant. The court understood the facts as follows: “[I]n May of 2008, [T’s mother] discovered her engaging in certain behavior that led her to question her daughter . . . [and shortly thereafter T] had disclosed [to her mother] what had happened to her at the hands of the defendant. [The] [m] other moved out of the house, and, eventually, moved to other states.” The court found that “Uncle J.B. could not have been the source of knowledge of other behavior because when [T] disclosed [the assault committed by the defendant] to the mother, she hadn’t even met Uncle J.B., at that point and time.” The court further concluded, based on the attorneys’ recitation of the facts, that Uncle J.B. could not have been the source of chlamydia because T had her clothes on during the incident. The court specifically held that it found the probative value of this evidence, as a potential alternate source for T’s advanced sexual knowledge and sexually transmitted disease, “to be extremely, extremely, low [due] to the fact that it does not have probative value [and has] prejudicial effect outweighing any probative value.”
As a preliminary matter we set forth the appropriate standard of review that will guide our analysis. “We review the trial court’s decision to admit [or exclude] evidence, if premised on a correct view of the law . . . for an abuse of discretion. State v. Saucier, 283 Conn.
The rape shield statute, § 54-86f, limits the use of the victim’s prior sexual conduct. Section 54-86f provides in relevant part: “[N]o evidence of the sexual conduct of the victim may be admissible unless such evidence is (1) offered by the defendant on the issue of whether the defendant was, with respect to the victim, the source of . . . disease ... or (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights. Such evidence shall be admissible only after a hearing on a motion to offer such evidence containing an offer of proof. ...”
“The rape shield statute directs the court to examine the defendant’s constitutional rights, implicating both his sixth amendment right to confront witnesses and his fourteenth amendment due process right to call witnesses on his own behalf. . . . [T]he right to confront and to cross-examine victims of sexual assault about their sexual histories is not absolute and may bow to accommodate other legitimate interests. . . . One of the legitimate interests is the court’s right, indeed, duty, to exclude irrelevant evidence. ... If the court determines that the proffered evidence is not relevant, the defendant’s right to present witnesses in
“A defendant who seeks to introduce evidence under one of the exceptions of § 54-86f must first make an offer of proof. State v. Cecil J., 99 Conn. App. 274, 280-81, 913 A.2d 505 (2007), aff'd, 291 Conn. 813, 970 A.2d 710 (2009). . . . Offers of proof are allegations by the attorney ... in which he represents to the court that he could prove them if granted an evidentiary hearing. . . . The purpose of an offer of proof has been well established by our courts. First, it informs the court of the legal theory under which the evidence is admissible. Second, it should inform the trial judge of the specific nature of the evidence so that the court can judge its admissibility. Third, it creates a record for appellate review. . . . Additionally, an offer of proof should contain specific evidence rather than vague assertions and sheer speculation. . . . [T]he defendant bears the burden of establishing the relevance of proffered testimony.” (Citations omitted; internal quotation marks omitted.) State v. Martinez, 295 Conn. 758, 771, 991 A.2d 1086 (2010).
“A clear statement of the defendant’s theory of relevancy is all important in determining whether the evidence is offered for a permissible purpose. State v. Sullivan, 244 Conn. 640, 647, 712 A.2d 919 (1998). . . . [I]n order for evidence of a victim’s prior sexual conduct to be admissible under § 54-86f to show a source for the victim’s sexual knowledge, [pjrior to trial the defendant must make an offer of proof showing: (1) that the prior acts clearly occurred; (2) that the acts closely resembled those of the present case; (3) that the prior act is clearly relevant to a material issue; (4) that the evidence is necessary to [the] defendant’s case; and (5) that the
We first address whether the court abused its discretion by precluding the proffered evidence, on the ground that it had little probative value, which was outweighed by its prejudicial effect. The defendant argues that the court improperly credited the state’s representation of the facts in reaching its conclusion that the assault committed by Uncle J.B. could not have been the source for T’s sexually transmitted disease or advanced sexual knowledge. The state, however, contends that the defendant failed to make an offer of proof sufficient to establish relevancy. We agree with the state and conclude that the trial court did not abuse its discretion.
The defendant’s assertion that he was unable to meaningfully contest the state’s version of events because the assault committed by Uncle J.B. was not further investigated is unavailing. The defendant bears the burden of establishing the relevance of the proffered testimony by making an offer of proof informing the court of the specific nature of the evidence, rather than making vague or speculative assertions. State v. Martinez, supra, 295 Conn. 771-72. The defendant asserted that because Uncle J.B. assaulted T, he could have been the source of T’s infection and advanced sexual knowledge and, therefore, a good faith inquiry was warranted due to the lack of evidence pertaining to the assault.
The defendant finally claims that the trial court erred by refusing to strike the chlamydia evidence as irrelevant or, alternatively, that the evidence was unfairly prejudicial. We disagree. The following facts and procedural history are relevant to our resolution of this claim.
The defendant filed a motion to strike and for a curative instruction pertaining to all testimony relating to T’s chlamydia testing and positive results on the grounds that the evidence was irrelevant and more prejudicial than probative. Specifically, the defendant claimed that the state failed to establish any link between him and the condition of T because no evidence was offered to connect him to the transmission of the disease and T’s sexual history was speculative.
It is well established that “[t]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the
We readily conclude that the court properly determined that the evidence was relevant and probative as to T’s having had sexual contact. See Conn. Code Evid. § 4-1. “A relevant fact is one that has a logical tendency to aid the trier in the determination of an issue. . . . Raybeck v. Danbury Orthopedic Associates, P.C., 72 Conn. App. 359, 378, 805 A.2d 130 (2002). No precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to the teachings of reason and judicial experience.” (Internal quotation marks omitted.) Harrison v. Hamzi, 77 Conn. App. 510, 516-17, 823 A.2d 446, cert. denied, 266 Conn. 905, 832 A.2d 69 (2003). Whether the defendant sexually assaulted T was a disputed, material issue of fact. T was diagnosed with chlamydia, which, according to expert testimony, is transmitted most commonly through sexual contact and requires some degree of penetration by an individual infected by the disease. T testified that she had sexual contact with the defendant when he assaulted her, penetrating her vaginally and anally. Furthermore, T’s medical records provided that she was not sexually active. Because T’s diagnosis logically tended to prove that she had sexual contact with an individual, the evidence that she had the requisite contact only with the defendant made it more likely that the defendant engaged in the conduct with which he was charged.
The defendant alternatively asserts that evidence pertaining to T’s chlamydia diagnosis was unfairly prejudicial, as it had an adverse effect on the defendant beyond tending to prove that T had sexual contact. See State
The judgment is affirmed.
In this opinion the other judges concurred.
T’s mother and the defendant were never married, but T referred to the defendant as her stepfather because he had raised her. T’s half brother is the biological child of T’s mother and the defendant.
At the direction of the defendant, T had refrained from reporting these previous incidents of abuse. During that three year period, to deter further abuse from the defendant, T began wearing pants under her nightgowns or multiple pairs of underwear.
Murphy stated that chlamydia can be contracted in útero as well as through sexual contact, but that T’s infection was unlikely to have resulted from the birth process, as those infections are usually discovered within the first three years of the child’s life and T was twelve years old at the time of her examination.
Murphy distinguished cases of sexual abuse from those in which an individual is sexually active and infected with chlamydia — in the latter instance treatment would be given without confirmatory tests.
Murphy testified that the nucleic acid amplification test, conducted in California, amplifies genetic material of the organism while cultures actually grow the organism. That test is more sensitive than a culture, as it requires less of the genetic material of chlamydia to detect it.
The defendant did not claim that the laboratory results were otherwise inadmissible.
We disagree with the defendant’s assertion that Mruphy, as a member of the team established pursuant to General Statutes § 17a-106a, was operating as law enforcement personnel. Our Supreme Court has observed that “[t]he stated purposes of the[se] multidisciplinary teams includes the advancement and coordination of the prompt investigation of suspected cases of child abuse, but also includes the goals of reducing the trauma to the child victim and ensuring the protection and treatment of the child victim.''' (Emphasis added.) State v. Arroyo, supra, 284 Conn. 634. “The mere fact that police are involved . . . because they are made privy to the information obtained ... is not sufficient, without more, to render the [statements] testimonial.” Id., 632 n.20. Similarly, in Slater, our Supreme Court held that the statements made to health care personnel are not automatically testimonial merely because the medical personnel were members of a team, organized pursuant to General Statutes § 19a-112a, that also
Our decision today obviously does not eliminate the possibility that, under a different set of facts, a laboratory technician performing the analysis reasonably could know that the results were intended for use in a criminal prosecution or that the primary purpose of the laboratory analysis was to establish or prove some fact in a criminal proceeding. A record that reflected such facts would be distinguishable from the record in this case and may produce a different outcome.
The defendant specifically refers to T’s subsequent conduct of contacting the defendant for help after Uncle J.B. assaulted her. During trial, testimony was given that T did contact the defendant for help while she was residing in California without stating the reason T initiated the contact.
Defense counsel argued to the court: “We don’t know the risks because there wasn’t [an] investigation. . . . [T]he state is asking you to infer [that T] must have told the truth . . . about what happened in California. And to further assume it is . . . the whole truth . . . even though California then didn’t investigate it further. ... I don’t know ... as to how many other nights he had access .... I don’t know how many opportunities he had during that time period [that T] was in California .... That’s why I would make inquiry . . . .”
The defendant’s assertion that the evidence was admissible to prove third party culpability is similarly unpersuasive. “It is well established that a defendant has a right to introduce evidence that indicates that someone other than the defendant committed the crime with which the defendant has been charged. . . . The defendant must, however, present evidence that directly connects a third party to the crime. ... It is not enough to show that another had the motive to commit the crime . . . nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused. . . .
“The admissibility of evidence of third party culpability is governed by the rules relating to relevancy.” (Citation omitted; internal quotation marks omitted.) Bryant v. Commissioner of Correction, 290 Conn. 502, 514, 964 A.2d 1186, cert. denied sub nom. Murphy v. Bryant, 558 U.S. 938, 130 S. Ct. 259, 175 L. Ed. 2d 242 (2009). Although the parties concede that T was sexually assaulted by Uncle J.B. in California, we conclude that the defendant’s vague assertions are insufficient to directly connect Uncle J.B. to the conduct with which the defendant was charged. The collateral assault committed by Uncle J.B. differed substantially from the crimes with which the defendant was charged, as T alleged that she remained clothed during the incident with Uncle J.B. and there was neither vaginal nor anal penetration. Furthermore, the collateral assault occurred in the latter half of 2008 after T had demonstrated advanced sexual knowledge and after the defendant
During oral argument, the defendant asserted that the state specifically declined to elicit testimony from T during its direct examination regarding whether she had sexual contact with any other individual and that the expert testimony indicated that T’s infection could have been contracted as recently as a few days before her tests or as long ago as prenatally. The defendant asserted that the inference that T contracted chlamydia from him is speculative and therefore must be stricken.
Relying on out-of-state jurisprudence, the defendant invites us to expand upon the categories set forth in § 4-3 of our code of evidence, asserting that the admission of evidence encouraging the jury to find guilt on an improper basis also results in unfair prejudice. We decline to do so.
Reference
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- STATE OF CONNECTICUT v. ANWAR S.
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