State v. Norman P. ( 2016 )

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STATE OF CONNECTICUT v. NORMAN P.*
(AC 37947)
Sheldon, Prescott and Flynn, Js.
Argued October 6—officially released December 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 appel-
lant (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).
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 ser-
vices 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 defen-
dant’s complete statement to the police, and, accord-
ingly, 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 identifi-
cation 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 reason-
ably could have found the following facts. On the eve-
ning 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 defen-
dant. A dispute over the operation of the air condition-
ing system arose between the defendant and B.P. A
verbal argument between the two, in which the com-
plainant 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 complain-
ant and, using his closed fist, punched her in the chest
with such force that it took her breath away. The com-
plainant punched the defendant back, injuring her
shoulder in the process, and the defendant began hitting
and jabbing the complainant repeatedly in the midsec-
tion with the television remote control, causing the
complainant severe bruising. The complainant eventu-
ally retreated to the upstairs bedroom where she usually
slept, away from the master bedroom where the defen-
dant usually slept.
Several minutes later, the defendant entered the com-
plainant’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 com-
plainant 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 defen-
dant refused and threatened that the more the complain-
ant protested, the harder he would continue the
penetration. The complainant soon realized that the
defendant was penetrating her with more than one fin-
ger 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 cramp-
ing 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 com-
plainant 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 complain-
ant 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 complain-
ant 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, discov-
ered 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 eve-
ning, 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 phy-
sician, 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 con-
cerning 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 defen-
dant with four counts of sexual assault in a spousal
relationship in violation of § 53a-70b, one count of crimi-
nal attempt to commit sexual assault in a spousal rela-
tionship 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 sen-
tenced 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 state-
ment 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 consis-
tent and self-serving hearsay statement offered by the
defendant to boost his favorable testimony through rep-
etition. 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-exami-
nation 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 writ-
ten 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 testi-
fied 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 morn-
ing that your wife had been in the house Monday night,
did you?4
‘‘A. I have only answered the question [that] the police
asked. . . .
‘‘Q. . . . [B]ut you told the police later on in the day
on August 9th after they had been to your house that
the TV had been smashed on Monday night . . . .
‘‘Q. And when you talked to that officer [at the police
station in the evening of August 9], you talked to him—
you told him that you were claiming that the TV was
damaged Monday night, but you didn’t say anything
about your wife being home on Monday night, did you?
Yes or no?
‘‘A. I didn’t—I wasn’t—as I said, the only—the only
question I answer was [what do] they call it—the ques-
tion the officer asked me.’’5
Subsequently, during redirect examination, the defen-
dant’s written police statement became the subject of
questioning once more, this time by defense counsel,
and the defendant again testified that the detective did
not transcribe the defendant’s words in the exact man-
ner as he said them aloud. Thereafter, defense counsel
stated that he would like to offer the defendant’s police
statement as an exhibit, to which the prosecutor
objected on the ground that it was self-serving hearsay
and not an admission by a party opponent. Defense
counsel responded: ‘‘[T]his statement read in its entirety
is consistent with his trial testimony. The [state] has in
cross-examination picked out inconsistencies, claiming
that it’s inconsistent with . . . his trial testimony. And
that, for the jury to understand whether those are really
inconsistencies or not, the jury should have the whole
statement in its entirety so they can see exactly how
it flows, what he said, what it was about and the context
of it . . . .’’ Defense counsel also asked the court for
five minutes to assemble his argument and correspond-
ing case citations, and the court agreed to take a brief
afternoon recess.
Upon returning from the court’s recess, the prosecu-
tor asserted that our Supreme Court’s decisions in State
v. Hines, 243 Conn. 796, 709 A.2d 522 (1998), and State
v. Jackson, 257 Conn. 198, 777 A.2d 591 (2001),6 were
inapposite to defense counsel’s argument in the present
case because Hines was overturned,7 and Jackson
‘‘points out that the defendant’s statement to the police
is hearsay and . . . even when he testifies, it doesn’t
give him the right to introduce otherwise inadmissible
hearsay. It doesn’t fall within any of the recognized
exceptions.’’ The court then sustained the state’s objec-
tion, stating that ‘‘according to State v. Jackson, [supra,
198] the entire written statement is inadmissible if it’s
. . . self-serving hearsay. So, I’m going to—since
you’ve already brought out on redirect, [defense coun-
sel], regarding your client’s prior consistent state-
ment[s], certainly, they come in, but I’m not going to
admit the entire statement.’’
In an effort to further clarify his argument for the
court and for the record, defense counsel then stated:
‘‘[A]s I indicated in a note that the [courtroom] clerk
delivered to you during a recess, the citations that the
clerk wrote were from the Practice Book, including
. . . § 1-5 (b) of the [Connecticut] Code of Evidence
. . . in order for the jury to understand . . . what the
defendant was actually asked about and why he said
certain things and didn’t say certain things in response
to certain questions, and to understand the context of
things he did say that went into the statement, the—
the entire statement should be admitted so that the
jury will have an understanding and be able to better
evaluate the credibility of the defendant and his testi-
mony. The statement is consistent with much of his
trial testimony, and the purported inconsistencies,
when read in the context of the statement, which
include the omissions that the state referred to, can’t
be understood unless this—the jury has the statement
before them. That’s the—that’s the purpose of offering
it, Your Honor.’’ In response, the court reiterated that
it ‘‘made [its] ruling . . . and you’ve made your record.
Thank you.’’
We begin by setting forth the applicable standard of
review and principles of law. ‘‘To the extent a trial
court’s [ruling regarding] admission of evidence is
based on an interpretation of the [Connecticut] Code
of Evidence, our standard of review is plenary. For
example, whether a challenged statement properly may
be classified as hearsay and whether a hearsay excep-
tion properly is identified are legal questions demanding
plenary review. They require determinations about
which reasonable minds may not differ; there is no
judgment call by the trial court . . . . We review the
trial court’s decision to admit evidence, if premised on
a correct view of the law, however, for an abuse of
discretion.’’ (Internal quotation marks omitted.) State
v. Miller, 121 Conn. App. 775, 780, 998 A.2d 170, cert.
denied, 298 Conn. 902, 3 A.3d 72 (2010). Because the
court’s interpretation of § 1-5 (b) of the Connecticut
Code of Evidence is being challenged, our review is
plenary.
‘‘Our cases have long held that, when one party to a
litigation or prosecution seeks to introduce admissions
that constitute only a portion of a conversation, the
opposing party may introduce other relevant portions
of the conversation, irrespective of whether they are
self-serving or hearsay.’’ (Internal quotation marks
omitted.) State v. Jackson, supra, 257 Conn. 213. This
principle is codified in § 1-5 (b) of the Connecticut Code
of Evidence, which provides: ‘‘When a statement is
introduced by a party, another party may introduce any
other part of the statement, whether or not otherwise
admissible, that the court determines, considering the
context of the first part of the statement, ought in fair-
ness to be considered with it.’’ ‘‘The purpose of this
rule is to ensure that statements placed in evidence
are not taken out of context. . . . This purpose also
demarcates the rule’s boundaries; a party seeking to
introduce selected statements under the rule must show
that those statements are, in fact, relevant to, and within
the context of, an opponent’s offer and, therefore, are
part of a single conversation.’’ (Citation omitted; inter-
nal quotation marks omitted.) State v. Jackson,
supra, 213.
Moreover, in State v. Hines, supra, 243 Conn. 807–
808, our Supreme Court held that ‘‘[w]hen a party has
impeached a witness with portions of a statement that
are inconsistent with his or her trial testimony, the trial
court may, in its sound discretion, admit the entire
statement for rehabilitative purposes, in order to place
the allegedly inconsistent statement into context and to
prevent the jury from being misled.’’ ‘‘[This] precludes
selective admission by one party that serves only to
distort reality and allow legal technicalities to obfuscate
the truth . . . .’’ (Internal quotation marks omitted.)
State v. Efrain M., 95 Conn. App. 590, 598, 899 A.2d 50,
cert. denied, 279 Conn. 909, 902 A.2d 1069 (2006).
Here, the defendant argues that the court misinter-
preted the Connecticut Code of Evidence because the
question of whether a statement is self-serving hearsay
is irrelevant to the question of its admissibility under
§ 1-5 (b). In response, the state argues that the court
properly excluded the complete police statement
because it ‘‘constituted nothing more than a self-serv-
ing, prior consistent hearsay statement that had no rele-
vance to offsetting the state’s claim of recent
contrivance as to certain details and, therefore, was no
more admissible than any other out-of-court statement
that a party might proffer in an effort to improperly
boost a witness’ favorable testimony through repe-
tition.’’
Because the court is vested with the discretion to
admit or to bar the statement on fairness grounds only
after it has made the legal determination that the partic-
ular statement is subject to § 1-5 (b) of the Code of
Evidence; see State v. Miguel C., 305 Conn. 562, 572,
46 A.3d 126 (2012); we begin our analysis by reviewing
whether the court’s exclusion of the defendant’s com-
plete police statement was based on a proper interpreta-
tion of § 1-5 (b). As previously discussed, the court was
specifically asked to rely on the Jackson decision in
overruling the state’s objection, but ultimately deter-
mined that the statement should be excluded because
‘‘according to State v. Jackson, [supra, 257 Conn. 198]
the entire written statement is inadmissible if it’s . . .
self-serving hearsay.’’ In short, there is no reasonable
basis from which the court could have concluded that
Jackson so holds. In fact, Jackson expressly stands for
the proposition that whether a statement is self-serving
hearsay is entirely irrelevant to the question of its admis-
sibility under § 1-5 (b) of the Connecticut Code of Evi-
dence. Id., 213. Moreover, the court’s interpretation of
§ 1-5 (b) utterly fails to take into account that portion
of the rule that expressly states that ‘‘another party may
introduce any other part of the statement, whether or
not otherwise admissible . . . .’’ (Emphasis added.)
Therefore, we conclude that the court disregarded bind-
ing Supreme Court precedent, and failed to construe
properly § 1-5 (b) of the Connecticut Code of Evidence,
by erroneously ruling that the statement was inadmissi-
ble on the ground that it was self-serving hearsay.
Having decided that the court improperly excluded
the statement on the basis of an improper interpretation
of the Connecticut Code of Evidence, we next turn to
whether that error was harmful, such that the defendant
is entitled to a new trial. ‘‘When an improper evidentiary
ruling is not constitutional in nature, the defendant
bears the burden of demonstrating that the error was
harmful. . . . [W]hether [an improper ruling] is harm-
less in a particular case depends upon a number of
factors, such as the importance of the witness’ testi-
mony in the . . . case, whether the testimony was
cumulative, the presence or absence of evidence cor-
roborating or contradicting the testimony of the witness
on material points, the extent of cross-examination oth-
erwise permitted, and, of course, the overall strength
of the prosecution’s case. . . . Most importantly, we
must examine the impact of the . . . evidence on the
trier of fact and the result of the trial. . . . [T]he proper
standard for determining whether an erroneous eviden-
tiary ruling is harmless should be whether the jury’s
verdict was substantially swayed by the error. . . .
Accordingly, a nonconstitutional error is harmless
when an appellate court has a fair assurance that the
error did not substantially affect the verdict.’’ (Internal
quotation marks omitted.) State v. Eleck, 314 Conn. 123,
129, 100 A.3d 817 (2014).
Here, the defendant asserts that the court should have
admitted the defendant’s complete written statement to
the police under § 1-5 (b) because, for two reasons, it
would have provided context for the portions of the
statement previously introduced by the state: (1) the
brevity of the statement might have caused the jury to
credit the defendant’s testimony as to why his statement
to the police was missing certain details to which he
testified at trial; and (2) the statement as a whole would
have allowed the jury to assess the defendant’s credibil-
ity without being misled by the prosecutor’s paraphras-
ing of certain portions of the statement, most
importantly, her argument that the defendant had ‘‘con-
ceded that he signed under oath to that truth that he
put a bar of soap in [the complainant’s] anus . . . .’’
(Emphasis added.) In addition, the defendant argues
that the trial court’s improper exclusion of his complete
statement to the police was not harmless given the
importance of his testimony at trial, the weakness of
the state’s case against him, and the fact that the jury
did not find him guilty of two of the seven counts with
which he was charged. It is important to note that the
state failed to brief whether such error was harmless
and, instead, confined its analysis to whether the full
statement was properly excluded.
First, we agree with the defendant that the omission
of certain information from his police statement is bet-
ter understood when viewed in light of the brevity of
the police statement as a whole. As previously dis-
cussed, the state chose to introduce substantive por-
tions of the defendant’s police statement during the
defendant’s cross-examination. When the state then
repeatedly questioned him as to why he left out certain
details from the written statement that he later testified
to at trial, the defendant made clear that he only
answered the narrow questions asked of him by the
police interviewer. Although the state argues that the
complete statement should not have been admitted
because it did not contradict any of the points made
by the state during the defendant’s cross-examination,
this is not the proper standard for considering the defen-
dant’s proffer. Rather, a statement should be admitted
in its entirety, upon the party declarant’s timely request,
to ‘‘ensure that statements placed in evidence are not
taken out of context.’’ (Internal quotation marks omit-
ted.) State v. Jackson, supra, 257 Conn. 213. The defen-
dant was entitled to have the jury consider that the
statement was only approximately one page in length
and that about one-half of its substance concerned inci-
dents that occurred solely between the defendant and
B.P., in order to better assess the state’s assertion that
the defendant must be lying on the witness stand regard-
ing certain facts because he never told the police about
those facts during his police interview. Without permit-
ting the entire statement to be admitted to show its
brevity, the court unduly handcuffed the defendant’s
ability to argue that he had not disclosed certain details
regarding the events in question because the interview
questions were limited in scope and duration, as
reflected by the shortness of the statement.
Second, we agree with the defendant that the com-
plete police statement was necessary to better explain
the state’s paraphrasing of a portion of the statement
concerning the nature of the bar of soap that was
involved in the alleged assault. Specifically, the prosecu-
tor stated during closing argument: ‘‘The defendant con-
ceded everything in his statement. He conceded that
he signed under oath to that truth that he put a bar of
soap in her anus and that he originally told the police
officer there was penile/vaginal sex, which he admitted
later on was not the truth and which she said was
not the truth.’’ During direct examination, however, the
defendant testified that he used a small piece of soap8
to lubricate the complainant’s anal area and that the
piece accidentally slipped inside of her. Similarly, the
language used in the police statement was not ‘‘a bar
of soap,’’ as the prosecutor characterized it, but a ‘‘used
bar of soap,’’ which is more consistent with the defen-
dant’s trial testimony. (Emphasis added.) Permitting the
jury to see the actual statement would have allowed it
to better assess the defendant’s credibility, a critical
issue in the present case. Therefore, the complete police
statement was necessary ‘‘in order to place the allegedly
inconsistent statement into context and to prevent the
jury from being misled.’’ State v. Hines, supra, 243 Conn.
808. Accordingly, we conclude that had the court prop-
erly applied § 1-5 (b) of the Connecticut Code of Evi-
dence to the facts of the present case, it necessarily
would have led to the determination that the defendant
should have been permitted to have his complete police
statement admitted into evidence to ensure that por-
tions of the statement previously introduced by the
state were not taken out of context.
Third, we agree with the defendant that the trial
court’s improper exclusion of his complete statement
to the police was not harmless given the importance
of the defendant’s witness testimony, the weakness of
the state’s case against the defendant, and the fact that
the jury did not find him guilty of two of the seven
counts with which he was charged. Because the defen-
dant conceded that he did have a sexual encounter
with his spouse on the night in question, but claimed
that the encounter was consensual and that her rectal
injuries had been caused accidentally, his trial testi-
mony was critical to his defense against the state’s
charges. Moreover, because of the nature of the defen-
dant’s version of events and the fact that the only two
witnesses to the alleged assault were the complainant
and the defendant, the outcome in this case primarily
rested on a credibility contest between the complainant
and the defendant, not on any physical evidence pre-
sented to the jury. As previously discussed, excluding
the defendant’s complete statement to the police as a
full exhibit unfairly placed the state’s selected portions
of that statement out of context and likely implicated
the defendant’s credibility in a negative way. Given the
importance to the state’s case that the defendant’s testi-
mony be found untrustworthy, we cannot conclude that
the court’s exclusion of the statement did not have a
substantial effect on the jury’s verdict. This is especially
true in light of the fact that the jury did not find the
defendant guilty on all of the charges against him,
thereby indicating that the jury did not fully credit the
testimony of the complainant or fully discredit the testi-
mony of the defendant. The defendant, therefore, is
entitled to a new trial.
II
Our conclusion that a new trial is warranted because
the court improperly interpreted § 1-5 of the Connecti-
cut Code of Evidence is dispositive of the defendant’s
appeal, thus eliminating the need to address most of
the defendant’s remaining claims. Nevertheless,
because the defendant’s claim concerning the court’s
refusal to mark for identification and inspect in camera
the complainant’s Interval House records is likely to
arise again on remand, we also address it in this opinion.
See State v. Arroyo, 284 Conn. 597, 601 n.3, 935 A.2d
975 (2007).
The claim is twofold: first, the defendant claims that
the court improperly refused to mark for identification
the complainant’s privileged Interval House records;
and second, he claims that the court improperly refused
to conduct an in camera review of the Interval House
records after he made the requisite threshold showing
for the review.9 In response, the state argues that
although the court’s refusal to mark the documents
for identification was improper, the defendant did not
make an adequate showing that an in camera review
of the privileged Interval House records was warranted.
We agree with both parties that the refusal to mark the
records for identification was improper, and agree with
the defendant that an adequate showing for an in cam-
era review of the records was made.
The following additional facts and procedural history
are relevant to these claims. When the complainant told
her doctor during her August 7, 2012 appointment that
the defendant was responsible for her injuries, the doc-
tor recommended that she speak with someone from
Interval House. Before the start of trial, the complain-
ant’s records from Interval House were subpoenaed,
and the organization complied with the subpoena by
providing those records, under seal, to the court clerk.
Thereafter, during trial, the doctor testified that the
complainant did, in fact, speak to an individual from
Interval House over the telephone. The doctor testified:
‘‘[A]nyone who I am concerned might be in a domestic
violence relationship or the victim of a domestic vio-
lence act, it’s my practice to get that individual on the
phone with a counselor at the time of the office visit.’’
The complainant also testified that she spoke with an
individual from Interval House, whom she categorized
as being ‘‘a sexual abuse counselor,’’ when she was at
the doctor’s office on August 7, 2012.
Because the Interval House records are privileged
as communications between a victim and a battered
woman’s or sexual assault counselor; see General Stat-
utes § 52-146k; the defendant requested during a pretrial
motion hearing on December 5, 2014, that the court
review the records in camera for exculpatory informa-
tion that could be used to impeach the complainant.
Specifically, the defendant made the following offer of
proof: ‘‘[I]nitially, [the complainant] told the doctor, as
evidenced in these medical reports, only one thing
[about the alleged assault], that the defendant pene-
trated her rectum with his fingers and twisted hard.
. . . No evidence—no indication here whatsoever of
penile penetration or attempted anal sex. There [are]
four counts here of attempted or committed anal inter-
course, at least two of them deal with penile penetra-
tion. . . . The allegation, Your Honor, at her deposition
and in the police reports, is that he penetrated her with
his penis and with soap on two occasions, at least, in
the bathroom and then again on the bed . . . .’’
The defendant then argued that the Interval House
records would likely indicate whether the complainant
told the Interval House employee the same version of
events that she told the doctor, i.e., the one containing
no reference to the alleged penile and soap penetration
or to the physical nonsexual assault, or the same version
of events she told the police, i.e., the one containing
those additional allegations. Accordingly, the defendant
contended, the court should review the documents in
camera before the start of the trial to determine whether
the statement the complainant made to Interval House
necessarily conflicted either with her statement to her
doctor or with her statement to the police and, thus,
is exculpatory because it could be used to impeach her
trial testimony. The defendant argued that he needed
any impeachment material likely to be found in the
Interval House records to prepare for the trial and for
the complainant’s cross-examination.
The court ruled that the defendant did not make
the threshold showing for an in camera review, but
informed him that if he raised the issue on cross-exami-
nation of the complainant, and if ‘‘there’s something in
there which may indicate that [the complainant] may
have said something different to the Interval House that
may be impeachment material, then . . . I’ll look at
the Interval House records in camera at that time. But
right now, you haven’t shown me anything that would
indicate that there’s something in there. You’re just
guessing right now.’’ Accordingly, the court denied the
motion without prejudice. When the defendant later
renewed his motion to review the records after the
complainant’s cross-examination, the court again
denied the motion, stating that the defendant ‘‘still [had]
not made a threshold showing that there’s anything in
there other than your conjecture.’’
Subsequently, before the start of the fourth day of
trial, the defendant requested that the court mark for
identification the complainant’s Interval House records,
but the court declined to do so ‘‘because [it] never
looked at them.’’ When the defendant pointed out that
that is the exact reason why they need to be marked
for appellate review, the court replied: ‘‘No, I don’t
believe so . . . . I believe once I look at them and if
I determine that there’s nothing in there that’s impeach-
ment material, then they need to be marked and sealed
for the Appellate Court. But I could be wrong; I don’t
know.’’ The defendant asked the court to reconsider
on the basis of case law, although he could not cite an
applicable case at that time, and again explained that
the defendant was entitled to have the records be pre-
served for appellate review. The court then stated: ‘‘Give
me the case cite, and I’ll look at it, but for now it’s not
going to be marked.’’
Thereafter, before the start of the defendant’s sen-
tencing hearing on February 26, 2015, the defendant
highlighted for the court specific parts of his motion
for a new trial, dated December 24, 2014, and stated:
‘‘[P]aragraph eight deals with the issue of whether or
not the court should mark for identification and seal
for appellate review the Interval House records. Even
though they were not reviewed by the court in camera,
Your Honor, I believe the case law is that the court has
the obligation to do so to preserve for appellate review
in the event that an appellate court thinks that the—
or rules that the court should have conducted an in
camera review so that there can be a record for further
review. So, that was one new citation. At the time of
trial, the court asked me if I had any case law on the
obligation to seal it, and at that time, I didn’t. Although
I thought that it was an obligation, I couldn’t recite that
for the court and never brought this case to the court’s
attention during trial, and I apologize for that, but I
thought at the time of the motion for [a] new trial, this
might be a time for the court to mark these records for
purposes of preserving the record for appeal. So, I’d
ask the court to do that based on State v. Bruno [236
Conn. 514, 673 A.2d 1117 (1996)].’’
In response, the court stated: ‘‘The court has had the
opportunity to review the case, State v. Bruno, [supra,
236 Conn. 514] cited by the defendant in [his] motion
to—for a new trial. The facts in Bruno are distinguish-
able from our current case, mostly because the docu-
ments that were requested in Bruno were psychiatric
records, which the . . . trial court found that the
defendant had failed to make a threshold showing that
there was anything in there that would be probative.
So, in that case, the court denied the in camera review
and did not mark the psychiatric records, which the
Appellate Court did find that was an error, but it was
a harmless error. In our case, those aren’t psychiatric
records. These are records that are protected by statute,
the Interval House records.’’ On that basis, the court
again declined to mark the records for identification.
A
We first turn to whether the court improperly refused
to mark the Interval House records for identification.
We agree with both the state and the defendant that
this was improper.
Although evidentiary matters typically fall within the
court’s discretion, ‘‘[t]he right to have a proffered
exhibit marked for identification is indeed a broad one.’’
State v. Onofrio, 179 Conn. 23, 34, 425 A.2d 560 (1979).
‘‘A trial court has the absolute duty to mark for identifi-
cation and seal for possible appellate review any such
records offered, whether or not an in camera inspection
is undertaken, even in the absence of an objection to
its failure to do so from the parties.’’ State v. Bruno,
supra, 236 Conn. 538. ‘‘A trial court’s refusal to permit
documents to be marked as exhibits for identification
is ‘manifest error.’ ’’ State v. Onofrio, supra, 43.
In the case at hand, the state concedes that the court’s
refusal to mark the Interval House records for identifi-
cation was error. We agree. Although the court
attempted to distinguish Bruno, we can divine no practi-
cal difference between psychiatric records, and records
of communications between a victim and a battered
woman’s or sexual assault counselor, both of which
are protected by statute. See General Statutes § 52-146d
(privileged communications between psychiatrist and
patient); General Statutes § 52-146k (privileged commu-
nications between victim and domestic violence coun-
selor or sexual assault counselor). Thus, for the second
time in this case, the court was presented with binding
case law on an evidentiary issue and proceeded to disre-
gard it. The court’s impropriety was ‘‘ ‘manifest error.’ ’’
State v. Onofrio, supra, 179 Conn. 43.
B
We turn next to the defendant’s claim that the court
improperly refused to inspect in camera the Interval
House records despite the fact that he had made a
sufficient preliminary showing required for such inspec-
tion. We agree with the defendant.
‘‘[I]n camera judicial review of a victim’s privileged
records currently represents the most common method
of balancing statutory privileges against the defendant’s
trial rights.’’ (Internal quotation marks omitted.) State
v. Slimskey, 257 Conn. 842, 856 n.9, 779 A.2d 723 (2001).
‘‘It is well settled in this state that before a criminal
defendant may obtain an in camera inspection of a
witness’ confidential records for purposes of impeach-
ment, he or she must first demonstrate that there is
reasonable ground to believe that the failure to produce
the information is likely to impair the defendant’s right
of confrontation such that the witness’ direct testimony
should be stricken. State v. Esposito, [supra, 192 Conn.
179] . . . . Our assessment of the trial court’s decision
to restrict the defendant’s access to the witness’ confi-
dential records must, however, take into account the
recognized principle that such a restriction implicates
the defendant’s constitutional right to impeach and dis-
credit state’s witnesses.’’ (Citations omitted; internal
quotation marks omitted.) State v. Ortiz, 252 Conn. 533,
557, 747 A.2d 487 (2000). Thus, ‘‘[u]pon inspecting the
records in camera, the trial court must determine
whether the records are especially probative of the
witness’ capacity to relate the truth or to observe, recol-
lect and narrate relevant occurrences.’’ (Internal quota-
tion marks omitted.) State v. Howard, 221 Conn. 447,
457–58, 604 A.2d 1294 (1992).
‘‘It is well established that impeachment evidence
may be crucial to a defense, especially when the state’s
case hinges entirely upon the credibility of certain key
witnesses. . . . The rule laid out in [Brady v. Mary-
land, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215
(1963)] requiring disclosure of exculpatory evidence
applies to materials that might well alter . . . the credi-
bility of a crucial prosecution witness.’’ (Internal quota-
tion marks omitted.) State v. Esposito, 235 Conn. 802,
815–16, 670 A.2d 301 (1996). Our Supreme Court has
held that ‘‘[i]nconsistencies may be shown not only by
contradictory statements but also by omissions.’’ State
v. Whelan, 200 Conn. 743, 748 n.4, 513 A.2d 86, cert.
denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598
(1986). Therefore, ‘‘[i]f a former statement fails to men-
tion a material fact presently testified to, which it should
have been natural to mention in the prior statement, the
prior statement is sufficiently inconsistent.’’ (Internal
quotation marks omitted.) State v. Reed, 174 Conn. 287,
303, 386 A.2d 243 (1978).
To meet his or her threshold burden for obtaining in
camera review of privileged records, ‘‘the defendant
must do more than assert that the privileged records
may contain information that would be useful for the
purposes of impeaching a witness’ credibility.’’ State v.
McClelland, 113 Conn. App. 142, 160, 965 A.2d 586,
cert. denied, 291 Conn. 912, 969 A.2d 176 (2009). ‘‘The
defendant’s offer of proof should be specific and should
set forth the issue in the case to which the [confidential]
information sought will relate.’’ (Internal quotation
marks omitted.) State v. George J., 280 Conn. 551, 599,
910 A.2d 931 (2006), cert. denied, 549 U.S. 1326, 127 S.
Ct. 1919, 167 L. Ed. 2d 573 (2007). At the same time,
however, ‘‘[o]ur Supreme Court has urged trial courts
to permit the defendant a certain latitude in his [or her]
attempt to make [the preliminary showing required to
obtain an in camera inspection of confidential records]
. . . .’’ (Internal quotation marks omitted.) State v.
Rosado, 52 Conn. App. 408, 418, 726 A.2d 1177 (1999).
In the present case, we conclude that the defendant
satisfied the threshold requirement for an in camera
inspection of the complainant’s Interval House records.
Rather than merely asserting a general belief that the
privileged records might contain impeachment informa-
tion to be used against the complainant during cross-
examination, the defendant’s offer of proof here was
well-defined and sufficiently set forth the issue in the
case to which the information sought would relate. As
a preliminary matter, we note that the defendant
asserted to the court that, without knowing precisely
what the complainant told Interval House, the evidence
led to the conclusion that she provided some sort of
backstory concerning the alleged assault to the Interval
House individual. We, too, are persuaded that it is not
unreasonable to infer from the existence of the com-
plainant’s subpoenaed Interval House records that the
complainant would have been asked by Interval House
to explain why she was calling and, thus, would have
provided a statement about the events that gave rise
to her referral to the organization. Accordingly, we now
turn to the crux of the defendant’s offer of proof.
Specifically, the defendant argued that the complain-
ant’s version of events concerning the alleged assault
that she told her doctor was inconsistent from the ver-
sion of events that she later told the police, because
the former statement omitted material facts that would
have been natural to mention to the health care pro-
vider. For example, the defendant cited for the court
how the complainant told her doctor that the defendant
forcefully put his fingers in her anus during the alleged
assault, but did not say that the defendant struck her
in the chest or that he forcefully inserted his penis
and a bar of soap into her anus.10 Because these two
statements were inconsistent with each other, the
defendant argued, it was reasonable to infer that a third
statement to Interval House must necessarily conflict
with at least one of them and, thus, would be exculpa-
tory in nature because it serves as impeachment evi-
dence for the trial testimony of the complainant, the
state’s key witness in the case.
Ultimately, the defendant’s offer of proof here was
not a mere attempt ‘‘to conduct a general fishing expedi-
tion into a witness’ privileged records.’’ (Internal quota-
tion marks omitted.) State v. Slimskey, supra, 257 Conn.
856 n.9. Rather, the defendant laid a sufficient founda-
tion to indicate a ‘‘ ‘reasonable ground to believe’ ’’;
State v. Ortiz, supra, 252 Conn. 557; that the Interval
House records contained material useful for impeach-
ment of a crucial prosecution witness, the complainant,
whose credibility was a critical factor to obtain a convic-
tion. We conclude, therefore, that the court improperly
ruled that the defendant had not made a sufficient show-
ing to compel an in camera inspection of the records.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to use the defendant’s full name or to identify the complainant or others
through whom her identity may be ascertained. See General Statutes
§ 54-86e.
1
The defendant also makes the following additional claims on appeal: the
prosecutor violated his due process rights by referring to statements not in
evidence during cross-examination and closing argument; the court improp-
erly refused to conduct an in camera review of confidential records from
the court support services division of the Judicial Branch; and the court
improperly admitted evidence, as prior uncharged misconduct, of two photo-
graphs of the complainant depicting prior injuries allegedly caused by the
defendant.
2
Generally speaking, if we reverse a judgment and remand the case for
a new trial, we sometimes choose to review other claims that are likely to
arise on retrial. See, e.g., State v. T.R.D., 286 Conn. 191, 195, 942 A.2d 1000
(2008). Because the Interval House records may well contain a statement
by the complainant regarding the alleged assault with which the defendant
was charged, the claims regarding these specific records are likely to arise
again on retrial. Because the remaining evidentiary claims raised by the
defendant on appeal are more tangential to the ultimate issue in the present
case, however; see footnote 1 of this opinion; we are not persuaded that
they are necessarily likely to arise again on retrial, and, therefore, we decline
to address them.
3
The defendant was acquitted on count five, which charged him with
attempt to commit sexual assault in a spousal relationship for allegedly
trying to compel his spouse to perform oral sex on him, and acquitted on
count three, which was one of the counts that charged him with sexual
assault in a spousal relationship for allegedly penetrating his spouse’s anus
with his penis. In its brief, the state misidentifies conduct of which the
defendant was found not guilty. Additionally, in its ‘‘counterstatement of
the facts,’’ the state sets forth the conduct forming the basis for count five,
on which the defendant was acquitted, and does not set forth the conduct
forming the basis for count four, on which the defendant was convicted.
4
The complainant had testified that on Monday, she had spent the night
with a friend so as to avoid the defendant. The defendant, in an attempt to
demonstrate that she was being untruthful and instead was still sleeping in
the same house with him, testified that he saw her in the house on ‘‘Monday
night [into] Tuesday morning . . . .’’
5
In another similar exchange during cross-examination, after the prosecu-
tor pointed out that the defendant failed to tell the police that B.P. had hit
the complainant when she intervened in the dispute between the defendant
and B.P. on the evening in question, the defendant repeatedly responded
that he ‘‘only [answered] the question [that] the police asked’’ and, for this
reason, ‘‘didn’t tell a lot of things to the police’’ during his interview.
6
Although the record is not entirely clear, it appears that these cases had
been mentioned in some capacity by the parties and the trial judge during
the court’s recess, such that each was aware that the cases might be part
of the discussion when court was called back in session.
7
The state’s assertion was incorrect. Although one portion of Hines, not
relevant to this issue, had been criticized by our Supreme Court in a subse-
quent case; see State v. Sawyer, 279 Conn. 331, 353, 904 A.2d 101 (2006),
overruled in part on other grounds by State v. DeJesus, 288 Conn. 418,
454–55 n.23, 953 A.2d 45 (2008); the holding in Hines on this question remains
good law and has been cited repeatedly by our appellate courts. See, e.g.,
State v. Burney, 288 Conn. 548, 559–60, 954 A.2d 793 (2008); State v. Gau-
thier, 140 Conn. App. 69, 78–79, 57 A.3d 849, cert. denied, 308 Conn. 907,
61 A.3d 1097 (2013); State v. Arcia, 111 Conn. App. 374, 382–83, 385, 958
A.2d 1253 (2008), cert. denied, 290 Conn. 907, 964 A.2d 543 (2009).
8
On this point, the following exchange took place between defense coun-
sel and the defendant during direct examination:
‘‘Q. . . . [D]escribe the size of the piece [of soap] that you took out . . . .
‘‘A. About the size of my finger.
‘‘Q. Okay. I want to show you the top of this pen, this magic marker, and
ask you, was it the piece that you took out [of] the dish?
‘‘A. Something—yeah. We keep those inside. Yes.
‘‘Q. Okay. So, it was about the size of the top of the magic marker I’m
holding in my hand . . . .
‘‘A. Yes.’’
9
In his brief, the defendant organizes his analysis of this claim by first
asserting that the court improperly refused to mark for identification the
Interval House records, and then, as part of his contention that this error
was harmful, by arguing that the court also improperly concluded that he
failed to make a sufficient showing, pursuant to State v. Esposito, supra,
192 Conn. 179–80, that he was entitled to have the records reviewed in
camera. For the reasons that we discuss, we conclude that the court improp-
erly failed to mark the records for identification. We also conclude that it
is likely that the issue of whether the defendant is entitled to an in camera
review of the records will arise on retrial. We thus choose to address that
claim here because both the state and the defendant have fully briefed
and argued it, and the state has not asserted that the defendant failed to
independently raise it as a claim on appeal.
10
The defendant also explained the importance of these inconsistencies
to the court by noting that at least three of the counts with which he
was charged were based on penile penetration, conduct that was never
mentioned to the doctor.