State v. Devon D. ( 2014 )

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STATE OF CONNECTICUT v. DEVON D.*
(AC 35400)
Bear, Keller and Pellegrino, Js.**
Argued February 20—officially released May 27, 2014
(Appeal from Superior Court, judicial district of
Hartford, Carbonneau, J.)
James B. Streeto, assistant public defender, with
whom, on the brief, was Heather M. Wood, assistant
public defender, for the appellant (defendant).
Denise B. Smoker, 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
BEAR, J. The defendant, Devon D., appeals from the
judgments of conviction, rendered after a jury trial,
of eleven offenses, in three separate files with three
different docket numbers, pursuant to three separate
informations, involving three different victims. Specifi-
cally, the defendant appeals from the following judg-
ments of conviction: In docket number CR-10-642409,
one count of sexual assault in the first degree in viola-
tion of General Statutes § 53a-70 (a) (2), one count of
risk of injury to a child in violation of General Statutes
§ 53-21 (a) (1), and one count of risk of injury to a child
in violation of § 53-21 (a) (2); in docket number CR-10-
642410, two counts of sexual assault in the first degree
in violation of § 53a-70 (a) (2), one count of risk of
injury to a child in violation of § 53-21 (a) (1), and two
counts of risk of injury to a child in violation of § 53-
21 (a) (2); and, in docket number CR-10-643139, one
count of sexual assault in the first degree in violation
of § 53a-70 (a) (2), one count of risk of injury to a child
in violation of § 53-21 (a) (1), and one count of risk of
injury to a child in violation of § 53-21 (a) (2). On appeal,
the defendant claims: (1) his rights to a fair trial and
an impartial jury were violated by the court’s denial of
his motion to sever the three separate informations,
which had been joined for a single trial, and (2) the
court improperly permitted the state to use a dog to
comfort one of the victims while she testified. We
reverse the judgments of conviction and remand the
cases for new trials.
The following facts, which reasonably could have
been found by the jury, and procedural history inform
our review. The defendant and his former girlfriend
(GF) have several children together, including C1, C2
and C3. After the defendant and GF ended their relation-
ship and separated in 2005, the children visited him at
his residence, which they called the ‘‘white house,’’ or
at the home of the defendant’s mother, where he was
a frequent visitor. The defendant then moved to an
apartment, where he resided with a male roommate
for approximately one and one-half to two years. The
children also visited with the defendant at that apart-
ment. The defendant and GF did not have a good rela-
tionship with each other, and they fought frequently.
GF complained that the defendant was violent toward
her, that he failed to support the children, and that he
frequently violated the terms of a restraining order that
she had obtained against him. GF also admitted that
the defendant had filed motions for contempt against
her for interfering with his visitation rights.
While trick-or-treating in October, 2009, six year old
C1, who was the daughter of GF and the defendant,
told GF that the defendant had sexually abused her by
putting his ‘‘wee-wee’’ on her stomach and by touching
her ‘‘private’’ part with his fingers. They talked about
these allegations again the next morning. Several days
later, GF told Frieda Griffin, a social worker with the
Department of Children and Families (department),
about C1’s allegations. Griffin had been working with
the family and had been going to GF’s home on a regular
basis. GF then contacted the police, and she brought
C1 to Saint Francis Hospital and Medical Center, where
C1 participated in two videotaped interviews con-
ducted, on different days, by Erin Byrne, a clinical child
interview specialist for the Children’s Advocacy Center
at Saint Francis Hospital and Medical Center. C1 told
Byrne that the defendant had penetrated her ‘‘private’’
with his fingers and with his penis, which hurt and
caused her to bleed, that he attempted to penetrate her
‘‘butt’’ with his penis, that he ejaculated on her several
times, and that he forced her and her siblings to watch
a pornographic movie. She also told Byrne that the
defendant forced her to perform fellatio on him, but
she vomited when he ejaculated in her mouth. Addition-
ally, C1 told Byrne that the defendant was upset because
she had eaten meat, so he put vinegar in her ‘‘privates’’
and in her ears; he also tried to insert his penis into
her ear to clean her flesh and get the ‘‘meat’’ she had
eaten out of her body, thus causing her ear to bleed.
C1 also told Byrne that the defendant had his clothes
off or his pants pulled down during these instances and
that many of them occurred in the bedroom.1
In November, 2009, eight year old C2, who was the
son of the defendant and GF, revealed that the defen-
dant had sexually abused him by inserting a rag covered
finger into his ‘‘butt hole’’ while he was bathing. C2
then was interviewed at school by Yolanda Napper, an
investigative social worker with the department. C2
also participated in a videotaped interview with Stacy
Karpowitz, who then was a child forensic interview
specialist with the Children’s Advocacy Center. C2 reit-
erated his allegations to Karpowitz and also told her
that the defendant had scrubbed his penis on several
occasions when he bathed C2, but that the defendant
always had on his clothes and had never asked C2
to touch him inappropriately. C2 also stated that the
defendant made him and some of his siblings watch a
pornographic movie, and had warned him not to say
anything.2
Also in November, 2009, after learning that his sister
had disclosed the sexual abuse committed by the defen-
dant, ten year old C3, another son of GF and the defen-
dant, disclosed to GF that the defendant also had
abused him. C3 was interviewed at school by Napper,
and he then was taken to Saint Francis Hospital and
Medical Center, where he participated in a videotaped
interview with Lisa Murphy-Cipolla, a clinical child
interview supervisor with the Children’s Advocacy Cen-
ter. C3 told Murphy-Cipolla that the defendant had
inserted a rag covered finger into his ‘‘butt’’ and
scrubbed his penis, attempting to pull back his foreskin,
on several occasions while C3 bathed, and that it was
painful and the soap burned. He also stated that,
although the defendant sometimes had him shower with
C2, he did not see the defendant do anything to C2.
Also, when Murphy-Cipolla asked C3 if the defendant
had attempted to have him do anything to the defendant,
C3 said no. C3 also told Murphy-Cipolla that he had
witnessed the defendant insert his finger into the ‘‘butt’’
of C1 while she showered, and had made him and his
siblings watch a pornographic movie in his bedroom
while he was in the kitchen. During his testimony before
the jury, C3 stated that what the defendant had done
was ‘‘not even that serious,’’ but that ‘‘[it was] negative.’’
He explained that the defendant ‘‘washes us, like, in
our privates . . . [and] he stick[s] his finger in our
butt . . . .’’3
C1, C2 and C3 also underwent physical examinations
for sexual abuse, but no physical evidence of abuse
was found. C1 did have some redness around her ure-
thra, but her hymen was intact, and Audrey Courtney,
the nurse practitioner, who had examined her, stated
that she found no evidence that C1 had been sexually
abused. Courtney also found no anal abnormalities on
C2, but did find that he had a condition, called phimosis,
that prevented his foreskin from retracting, which was
not caused by sexual abuse. Courtney also testified that
the lack of physical evidence was not uncommon even
when a child had been the victim of sexual abuse.
The defendant, although opting not to testify,
defended the cases on the theory that there was no
sexual abuse and that GF had contrived the abuse alle-
gations to stop him from seeing the children. Defense
counsel brought out the fact that the defendant and GF
did not get along, that GF had a restraining order against
the defendant, and that the defendant had filed motions
for contempt against GF for interfering with his visita-
tion rights. Additionally, during the questioning of C2,
defense counsel asked him if there was a time that his
mother was not bathing him enough, and he responded
that he did not remember. During the questioning of
C3, defense counsel asked C3 whether he had poor
hygiene and asked him whether Griffin was assisting
the family, in part, because of the children’s hygiene.
C3 stated that he did not know. Additionally, the chil-
dren had alleged that some of the abuse occurred when
the defendant took them to the home of his mother,
and that she frequently was in the home when this
occurred. The defendant’s mother testified that,
because of her places of employment, she is a manda-
tory reporter. She stated that the children’s home was
not clean and the children were not clean. She testified
that they sometimes were ‘‘[d]irty, smelly, their hair is
not clean.’’ She also stated that the defendant would
take the children to her home only when she was there
and that he did bathe the children there, but that she
never saw any type of abuse and that she ‘‘would never
put up with that.’’
Following a trial by jury, the defendant, on July 19,
2011, was found guilty of all charges in all three informa-
tions. The defendant filed motions for acquittal in each
case, as well as motions for a new trial. The court denied
the defendant’s motions and sentenced him to a total
effective term of forty years imprisonment, execution
suspended after eighteen years, with thirty-five years of
probation thereafter. This appeal followed. Additional
facts will be set forth as necessary.
I
On appeal, the defendant claims that his rights to a
fair trial and an impartial jury were violated by the
denial of his motion to sever the three separate informa-
tions, involving three different victims. He argues that
the evidence from C1’s case was not cross admissible
in the cases of C2 and C3 and that, under the factors
articulated in State v. Boscarino, 204 Conn. 714, 529
A.2d 1260 (1987), his motion to sever should have been
granted, and the cases should have been tried sepa-
rately. We conclude that the evidence in C1’s case was
not cross admissible in the other cases involving C2
and C3, that the evidence in the cases involving C2 and
C3 was not cross admissible in the case involving C1,
that the denial of severance resulted in substantial prej-
udice, and that any resulting prejudice was beyond the
curative power of the court’s instructions.
The following additional facts are relevant to our
analysis. The defendant filed a motion for severance on
March 29, 2011, arguing that he would suffer substantial
prejudice if the cases were not severed. Before the trial
court, the state argued that the Boscarino factors; see
id., 722–24; weighed in favor of the state, and it also
argued that the evidence from each case was cross
admissible in the other cases because it fit under the
common scheme or plan exception to the rule against
hearsay. The state also briefly mentioned State v.
DeJesus, 288 Conn. 418, 953 A.2d 45 (2008), but offered
no argument specifically regarding propensity. The
defendant responded that the facts alleged in the case
involving C1 were vastly different from the facts alleged
in the cases involving C2 and C3, and that, therefore,
it was unlikely that the court would allow this evidence
to be introduced under the common scheme or plan
exception if the cases were severed. The court, applying
the presumption in favor of joinder that had been con-
sidered proper prior to State v. Payne, 303 Conn. 538,
34 A.3d 370 (2012), determined that severance was not
required under the Boscarino factors and that it would
be easier for the children if the cases were joined;4 it
did not opine at that time on whether it considered the
evidence to be cross admissible.5
On appeal, the defendant argues that this case is
controlled by State v. Gupta, 297 Conn. 211, 222–34,
998 A.2d 1085 (2010), and that the evidence from each
case was neither cross admissible, nor admissible under
the Boscarino factors. Accordingly, he argues, the court
improperly denied his motion for severance. We agree
that the evidence from C1’s case was not cross admissi-
ble in the cases involving C2 and C3, and that the evi-
dence in the cases involving C2 and C3 was not cross
admissible in the case involving C1.
On appeal, ‘‘[i]t is the defendant’s burden . . . to
show that joinder was improper by proving substantial
prejudice that could not be cured by the trial court’s
instructions to the jury . . . . [I]n deciding whether to
[join informations] for trial, the trial court enjoys broad
discretion, which, in the absence of manifest abuse,
an appellate court may not disturb.’’ (Citation omitted;
internal quotation marks omitted.) State v. LaFleur, 307
Conn. 115, 158, 51 A.3d 1048 (2012).
‘‘[I]n considering whether joinder is proper, this court
has recognized that, where evidence of one incident
would be admissible at the trial of the other incident,
separate trials would provide the defendant no signifi-
cant benefit. . . . Under such circumstances, the
defendant would not ordinarily be substantially preju-
diced by joinder of the offenses for a single trial. . . .
Accordingly, we have found joinder to be proper where
the evidence of other crimes or uncharged misconduct
[was] cross admissible at separate trials. . . . Where
evidence is cross admissible, therefore, our inquiry
ends.
‘‘Substantial prejudice does not necessarily result
from [joinder] even [if the] evidence of one offense
would not have been admissible at a separate trial
involving the second offense. . . . Consolidation
under such circumstances, however, may expose the
defendant to potential prejudice for three reasons: First,
when several charges have been made against the defen-
dant, the jury may consider that a person charged with
doing so many things is a bad [person] who must have
done something, and may cumulate evidence against
him . . . . Second, the jury may have used the evi-
dence of one case to convict the defendant in another
case even though that evidence would have been inad-
missible at a separate trial. . . . [Third] joinder of
cases that are factually similar but legally unconnected
. . . present[s] the . . . danger that a defendant will
be subjected to the omnipresent risk . . . that
although so much [of the evidence] as would be admissi-
ble upon any one of the charges might not [persuade
the jury] of the accused’s guilt, the sum of it will con-
vince them as to all. . . .
‘‘[Accordingly, the] court’s discretion regarding join-
der . . . is not unlimited; rather, that discretion must
be exercised in a manner consistent with the defen-
dant’s right to a fair trial. Consequently, [in State v.
Boscarino, supra, 204 Conn. 722–24] we have identified
several factors that a trial court should consider in
deciding whether a severance [or denial of joinder] may
be necessary to avoid undue prejudice resulting from
consolidation of multiple charges for trial. These factors
include: (1) whether the charges involve discrete, easily
distinguishable factual scenarios; (2) whether the
crimes were of a violent nature or concerned brutal or
shocking conduct on the defendant’s part; and (3) the
duration and complexity of the trial. . . . If any or all
of these factors are present, a reviewing court must
decide whether the trial court’s jury instructions cured
any prejudice that might have occurred.’’ (Citations
omitted; internal quotation marks omitted.) State v.
LaFleur, supra, 307 Conn. 155–56.
In this case, on the basis of our review of the record,
we are persuaded that under DeJesus and Boscarino,
the evidence from the case involving C1 was not cross
admissible in the cases involving C2 and C3, and the
evidence from the cases involving C2 and C3 was not
cross admissible in the case involving C1.6 Accordingly,
we conclude that the trial court abused its discretion
in denying the defendant’s motion for severance.
A
Cross Admissibility
In State v. DeJesus, supra, 288 Conn. 470–74, our
Supreme Court concluded ‘‘that evidence of uncharged
sexual misconduct is admissible only if it is relevant to
prove that [a] defendant had a propensity or a tendency
to engage in the type of aberrant and compulsive crimi-
nal sexual behavior with which he or she [was] charged.
Relevancy is established by satisfying the liberal stan-
dard pursuant to which [prior sex crimes] evidence
previously was admitted under the common scheme
or plan exception. Accordingly, evidence of uncharged
misconduct [or other crimes] is relevant to prove that
[a] defendant had a propensity or a tendency to engage
in the crime charged only if it is: (1) . . . not too remote
in time; (2) . . . similar to the offense charged; and
(3) . . . committed [against] persons similar to the
prosecuting witness.
‘‘[Such] [e]vidence . . . is admissible only if its pro-
bative value outweighs the prejudicial effect that invari-
ably flows from its admission. . . . In balancing the
probative value of such evidence against its prejudicial
effect, however, trial courts must be mindful of the
purpose for which the evidence is to be admitted,
namely, to permit the jury to consider a defendant’s
prior bad acts in the area of sexual abuse or child
molestation for the purpose of showing propensity.7
. . .
‘‘The admission of evidence of . . . uncharged mis-
conduct is a decision properly within the discretion of
the trial court. . . . [E]very reasonable presumption
should be given in favor of the trial court’s ruling. . . .
[T]he trial court’s decision will be reversed only where
abuse of discretion is manifest or where an injustice
appears to have been done. . . . [T]he burden to prove
the harmfulness of an improper evidentiary ruling is
borne by the defendant . . . [who] must show that it
is more probable than not that the erroneous action
of the court affected the result.’’ (Citations omitted;
footnote altered; internal quotation marks omitted.)
State v. George A., 308 Conn. 274, 293–95, 63 A.3d
918 (2013).
Applying DeJesus to the present case, we conclude
that, although the conduct alleged was not too remote
in time and that the victims share some similarities,
the facts alleged in the case of C1 were sufficiently
dissimilar, reflecting significant qualitative differences,
from the facts alleged in the cases involving C2 and C3,
and that the unduly prejudicial effect of that evidence
barred its cross admissibility. Likewise, the facts alleged
in the cases of C2 and C3 were sufficiently dissimilar
from the facts alleged in the case of C1, and the unduly
prejudicial effect of that evidence barred its cross
admissibility in the case of C1.
The defendant relies in part on State v. Gupta, supra,
297 Conn. 226–27, to support his contention that the
conduct at issue in C1’s case was sufficiently dissimilar
to the conduct at issue in C2’s and C3’s cases to be cross
admissible in those cases. In Gupta, a case involving the
conduct of a physician with three of his female patients,
our Supreme Court explained in detail that evidence in
the cases against the defendant was not cross admissi-
ble because the case involving one victim, M, was ‘‘too
dissimilar’’ from the cases involving two other victims,
D and J: ‘‘Although the defendant improperly touched
the breasts of D and J during a purportedly legitimate
examination, his conduct toward M was markedly dif-
ferent, far more egregious and could in no way be mis-
taken for a proper medical examination. In addition to
feeling her breasts with his fingertips and grabbing both
of her breasts with his hands—the only conduct com-
mon to all three victims—the defendant kissed M on
her cheeks, remarked that her breasts were soft and
beautiful and pinched her nipples. . . . While he exam-
ined M’s stomach, he remarked that it was flat, exposed
the top of her private area, tapped her pelvic bone and
commented that she was shaved and that she was so
hot. . . . Even after M told the defendant that the
examination was over, he again firmly massaged M’s
breasts with both of his hands, asked if he could kiss
her breasts, and although M replied no, proceeded to
put his mouth on each breast and to suck briefly on
them. . . . When M jumped up from the table, pulled
down her shirt and said, No, we are done. That is
enough, the defendant persisted by putting his hands
underneath her shirt, grabbing her breasts, and asking
to feel her while she was sitting up. . . . [T]his evi-
dence . . . demonstrates, in short, that the case involv-
ing M reflected significant qualitative differences from
those involving D and J that were not merely a matter
of degree.’’ (Citations omitted; internal quotation marks
omitted.) Id.
In the present case, we conclude that the dissimilarit-
ies among the conduct in the defendant’s three cases
are even more extreme than the dissimilarities present
in State v. Gupta, supra, 297 Conn. 226–27. Although
there was evidence that the defendant inserted a rag
covered finger into the ‘‘butts’’ of both C2 and C3 and
scrubbed their penises while C2 and C3 bathed, the
boys stated that the defendant remained clothed while
he did this and that he did not ask or demand that the
boys touch him. On the other hand, his alleged conduct
toward C1 was far more sexually egregious and in no
way could have been mistaken for an aggressive bathing
practice. There are real and significant differences
between the allegations involving C1 and those involv-
ing C2 and C3. See State v. Gupta, supra, 242 (Palmer,
J., concurring).
In addition to evidence that the defendant inserted
his finger into the ‘‘butt’’ of C1 while she bathed, there
also was evidence that he inserted his finger and his
penis into her ‘‘private,’’ that he attempted to insert his
penis into her ‘butt’’ and her ear, that he ejaculated on
her several times, and that he forced her to perform
fellatio on him, causing her to vomit. Many of the defen-
dant’s actions against C1 took place in the bedroom,
where he either was partially clothed or completely
unclothed. Regarding the crimes of sexual assault in
each of the three cases, the only conduct arguably com-
mon to all three victims was the defendant’s insertion
of his finger into their ‘‘butts’’ while they bathed. The
evidence involving C1 clearly reflects significant quali-
tative differences from those involving C2 and C3 that
were not merely a matter of degree. See id.; see also
State v. Ellis, 270 Conn. 337, 378, 852 A.2d 676 (2004)
(holding that court abused discretion in consolidating
cases of three victims ‘‘because the defendant’s abuse
of [the first victim] was substantially more egregious
than his abuse of the other two [victims]’’).
Having concluded that the facts alleged in the case
involving C1 were so dissimilar, physically and factu-
ally, as to reflect significant qualitative differences from
the facts alleged in the cases involving C2 and C3, we
next address whether the probative value of the cross
admissibility of evidence in these cases, nonetheless,
would outweigh ‘‘the prejudicial effect that invariably
flows from its admission.’’ (Internal quotation marks
omitted.) State v. DeJesus, supra, 288 Conn. 473. We
conclude that the inevitable dangers of joinder in this
case derive from the likelihood that the jury improperly
considered evidence of the defendant’s conduct toward
C1 to establish the elements and to find him guilty of
the charges stemming from his conduct toward C2 and
C3, even though such evidence would not have been
admissible at separate trials. See State v. Gupta, supra,
297 Conn. 230; State v. Boscarino, supra, 204 Conn. 723
(‘‘[j]oinder gave the state the opportunity to present the
jury with the intimate details of each of these offenses,
an opportunity that would have been unavailable if the
cases had been tried separately’’). Having concluded
that the evidence in the cases was not cross admissible,
we, nevertheless, must consider whether the court
abused its discretion in denying the defendant’s motion
to sever the cases, causing the defendant to suffer sub-
stantial prejudice. See State v. Gupta, supra, 231–32;
State v. Randolph, 284 Conn. 328, 337, 933 A.2d 1158
(2007) (‘‘[s]ubstantial prejudice does not necessarily
result from a denial of severance even [if the] evidence
of one offense would not have been admissible at a
separate trial involving the second offense’’ [internal
quotation marks omitted]).
B
The Boscarino Factors and Substantial Prejudice
In State v. Boscarino, supra, 204 Conn. 722–24, our
Supreme Court identified several factors that a trial
court should consider in deciding whether multiple
cases should be joined or severed to avoid substantial
prejudice resulting from consolidation of multiple cases
for trial. ‘‘These factors include: (1) whether the charges
involve discrete, easily distinguishable factual scenar-
ios;8 (2) whether the crimes were of a violent nature
or concerned brutal or shocking conduct on the defen-
dant’s part; and (3) the duration and complexity of the
trial. . . . If any or all of these factors are present, a
reviewing court must decide whether the trial court’s
jury instructions cured any prejudice that might have
occurred.’’ (Footnote added; internal quotation marks
omitted.) State v. Payne, supra, 303 Conn. 545. When
we examine whether severance was necessary to avoid
undue prejudice, we, in effect, ‘‘weigh the risk that the
jury will improperly use evidence that is introduced for
proper purposes, despite the instructions of the court
regarding the proper use of that evidence. This indeed
is similar to the process that our courts employ in
determining the admissibility of evidence regarding
prior convictions and other misconduct of the defen-
dant.’’ State v. Gupta, supra, 297 Conn. 232.
In Gupta, after concluding that the evidence related
to the individual victims was not cross admissible as
propensity evidence, our Supreme Court, rather than
analyzing each of the factors set forth individually in
Boscarino, agreed with the Appellate Court’s determi-
nation that the inherent risks associated with improper
joinder were present in that case because the allega-
tions of abuse involving one of the victims was much
more egregious than the allegations involving the other
two victims and that the evidence of that behavior was
far more prejudicial than probative, thus focusing on
the second Boscarino factor and the prejudice resulting
therefrom: ‘‘Accordingly, we turn again to the Appellate
Court’s recitation of the general inherent risks associ-
ated with improper joinder as well as the specific dan-
gers evident in the present appeal. Throughout the trial
and numerous times in the charge to the jury, the court
told the jury to consider the three cases separately.
Nevertheless, there was some prejudice to the defen-
dant that even proper instructions from the court could
not cure. . . .
‘‘In the present case, some of these risks are present.
For instance, there were several charges made against
the defendant, and this litany of charges may have con-
vinced the jury that he had to have committed at least
one of the crimes with which he was charged. Second,
the jury may have cumulated the evidence from all of
the cases to find the defendant guilty in J’s and M’s
cases. . . .
‘‘In summary, because the defendant’s behavior with
respect to M was far more egregious than his behavior
with respect to J and D, and the evidence of that behav-
ior was far more prejudicial than probative, we con-
clude that the defendant was deprived of his right to a
fair trial by the improper joinder of the cases.’’ (Citation
omitted; internal quotation marks omitted.) Id., 232–33;
see also State v. Ellis, supra, 270 Conn. 369, 378 (trial
court abused discretion in consolidating cases involving
three victims because defendant’s abuse of first victim
was substantially more egregious than abuse of other
two girls, and court’s instructions to jury were insuffi-
cient to cure substantial prejudice that resulted from
improper joinder).
We also look to the Ellis case. In Ellis, the defendant
was charged with sixteen counts of sexual misconduct
involving three victims, Sarah S., Julia S. and Kristin
C., which had been joined for trial. State v. Ellis, supra,
270 Conn. 339, 360 n.16. On appeal, the defendant
claimed, in part, that the court improperly had consoli-
dated the cases for trial because the facts involving
Sarah S. were far more shocking than the facts involving
the other two victims and that the court’s instructions
to the jury were insufficient to cure the substantial
prejudice that resulted from the improper joinder. Id.,
368. Our Supreme Court agreed. Id., 369.
Julia S. and Kristin C. were young teenagers who
played softball for the team that the defendant coached.
Id., 343. Julia S. reported that the defendant had grabbed
and groped her breast while they were in the defen-
dant’s office on one occasion. Id., 344. Kristin C.
reported that the defendant had grabbed and squeezed
her breast while they were wrestling in his office, and
that he had grabbed her breast and tapped on her nipple
on another occasion. Id., 345–46. Sarah S. did not play
softball for the team that the defendant coached, but
she knew the defendant through her father and her
sister, who did play on the defendant’s team. Id., 346.
The defendant began giving Sarah S.’s sister and others
pitching lessons in the backyard of Sarah S.’s home,
and he regularly met with Sarah S.’s father at their home
as well. Id. The defendant first began having sexually
explicit conversations with Sarah S. over the telephone,
telling her that he was masturbating while they were
talking. Id., 347. The conduct then became physical,
with the defendant grabbing her breasts, running his
hands up and down her body, and touching in between
her legs. Id. This conduct also grew more pronounced,
with the defendant sitting beside Sarah S. in her family
room, opening his pants and trying to pull Sarah S.’s
hand toward his exposed penis. Id., 348. When she
pulled away, the defendant tried to move her face down
to his penis. Id. Again, she pulled away, and the defen-
dant then masturbated until he ejaculated. Id. There
also was evidence of uncharged misconduct involving
Sarah S. that was admitted at trial, as was other
uncharged misconduct evidence involving another of
the defendant’s victims, Kaitlyn M. Id., 348–51.
Initially, the cases involving Sarah S., Julia S., and
Kristin C. appeared on three separate informations, set
to be tried separately. Id., 351. The defendant first
sought to exclude evidence of the allegations made by
Kaitlyn M., Julia S., and Kristin C. in his trial in the case
involving Sarah S. on the ground that the allegations
from the other girls were not similar to the allegations
made by Sarah S., and that the admission of this evi-
dence was far too prejudicial. Id., 352. The trial court
denied the defendant’s motion. Id. On appeal, our
Supreme Court held that the trial court had committed
error in not excluding the testimony of the other girls.
It explained that the defendant’s relationship with Sarah
S. was different from his relationship with the other
girls in that he did not coach Sarah S. on his softball
team, and that, although the cases were proximate in
time, ‘‘there were few similarities between his abuse of
Sarah S. and his abuse of the other girls.’’ Id., 358.
Our Supreme Court also found that the denial of the
defendant’s motion to exclude this evidence was harm-
ful because ‘‘[a]ny improper evidence that may have a
tendency to excite the passions, awaken the sympathy,
or influence the judgment, of the jury, cannot be consid-
ered as harmless.’’ (Internal quotation marks omitted.)
Id., 367–68. The court stated: ‘‘That the defendant’s
abuse of the other girls was not as severe as his abuse
of Sarah S. does not mean that the evidence of such
abuse was harmless. The sheer quantity of testimony
concerning the defendant’s abuse of the other girls was
likely to have been harmful in its cumulative effect upon
the jury’s deliberations.’’ Id., 368.
The next issue that our Supreme Court considered
in Ellis was the defendant’s claim that the trial court
improperly granted the state’s motion to join the cases
of Sarah S., Julia S., and Kristin C. after denying his
motion to exclude. Id., 368. The defendant claimed that
the court’s ruling was improper under Boscarino. Id.,
376. Similar to Gupta, the defendant in Ellis focused
only on the second Boscarino factor. Id. He argued that
the abuse of Sarah S. was so dissimilar to the abuse
of the other victims, Julia S. and Kristin C., that the
consolidation of Sarah S.’s case with the other cases
‘‘compromised the jury’s ability to consider fairly the
charges against him in the [other] cases . . . and that
the trial court’s instructions failed to mitigate the
resulting prejudice because they did not clearly admon-
ish the jury to consider each case separately.’’ Id., 376–
77. Our Supreme Court agreed, explaining: ‘‘The effect
of testimony regarding the intimate details of sexual
misconduct on a jury’s ability to consider separate
charges in a fair and impartial manner cannot be under-
estimated.’’ Id., 377. The court further explained that
the decision to admit the testimony of the other victims
in Sarah S.’s case ‘‘had the corresponding effect of per-
mitting the jury, following the joinder, to view the testi-
mony of Sarah S. as bearing on the defendant’s
culpability with respect to [the other victims].’’ Id., 378.
The court also concluded that the trial court’s instruc-
tions to the jury did not mitigate the resulting prejudice
from the improper joinder of the case. Id.
Unlike the trial court in Gupta, which specifically
instructed the jury to consider each case involving the
victims separately; see State v. Gupta, 105 Conn. App.
237, 249, 937 A.2d 746 (2008), rev’d in part on other
grounds, 297 Conn. 211, 998 A.2d 1085 (2010); in Ellis,
the trial court had instructed the jury that ‘‘[e]ach charge
against the defendant is set forth [in] the information
. . . and each offense charged must be considered sep-
arately . . . .’’ (Emphasis added; internal quotation
marks omitted.) State v. Ellis, supra, 270 Conn. 370.
The court in Ellis also instructed: ‘‘Each count alleges
a separate crime, joined for convenience of trial . . . .
It will be your duty to consider each charge or count
separately, and when you return to the courtroom you
will be asked whether or not the accused is guilty as
charged in each of the counts . . . .’’ (Emphasis added;
internal quotation marks omitted.) Id., 373. Our
Supreme Court pointed out that ‘‘although the court
repeatedly instructed the jury to consider the seventeen
counts separately, it never advised the jury at any point
in the proceedings to distinguish the charges relating
to Sarah S. from the charges relating [to the other vic-
tims].’’ Id., 379. Furthermore, the Supreme Court stated
that the trial court improperly had instructed the jury
that ‘‘if [the] evidence showed a common scheme on
the part of the defendant . . . the jury could use that
evidence to convict the defendant in each case.’’ Id.
The court held that ‘‘the defendant was substantially
prejudiced by the joinder of the cases because the court
instructed the jury that it could consider the signifi-
cantly more egregious evidence of abuse in the case of
Sarah S. to convict the defendant in the cases of Julia
S. and Kristin C.’’ Id. After reversing the judgments of
conviction, our Supreme Court, in its remand order,
directed that ‘‘no evidence of a common scheme to
abuse Julia S., Kristin C. or Kaitlyn M. will be admissible
in the trial involving Sarah S., nor will evidence of a
common scheme to abuse Sarah S. be admissible in the
trials involving Julia S. or Kristin C.’’ Id., 381.
In the present case, we conclude that the inherent
risks associated with improper joinder were present in
this case because the allegations of abuse involving C1
were far more egregious and substantially different than
the allegations involving C2 and C3, that the evidence
of that behavior was far more prejudicial than proba-
tive, and that the court’s instructions to the jury did
not cure that prejudice. The defendant faced eleven
charges, contained in three separate informations,
involving three different victims. Although the court
told the jury that there were three separate informations
and that each count was to be considered separately,
it did not tell the jury to consider each information or
case separately. The court specifically instructed the
jury that it could use the evidence from each case in
the other cases to prove the defendant’s propensity to
commit sexually abhorrent crimes, thereby essentially
telling the jury that it could consider the significantly
more egregious evidence of abuse in the case of C1 in
determining whether the defendant was guilty in the
cases of C2 and C3. See id. Furthermore, that fact that
the allegations involving C2 and C3 were not as egre-
gious as the allegations involving C1 does not mean
that the evidence of such abuse was harmless in the
case involving C1; the sheer quantity of testimony con-
cerning the defendant’s conduct toward the boys was
likely to have been harmful in its cumulative effect upon
the jury’s deliberations. See id., 368. The jury certainly
could have cumulated the evidence from each of the
cases to find the defendant guilty in all of the cases.
As our Supreme Court previously explained: ‘‘We
have recognized that the crime of sexual assault [is]
violent in nature, irrespective of whether it is accompa-
nied by physical violence. Short of homicide, [sexual
assault] is the ultimate violation of self. It is also a
violent crime because it normally involves force, or the
threat of force or intimidation, to overcome the will
and the capacity of the victim to resist. [Although sexual
assault] is very often accompanied by physical injury
to the [victim] . . . [it] can also inflict mental and psy-
chological damage. . . .
‘‘Not all crimes of sexual assault, however, are equally
brutal and shocking. . . . For example, although [s]ex-
ual assaults in the first degree can be characterized as
brutal . . . [s]ome . . . evince a greater degree of bru-
tality or shocking behavior than others. The question
then becomes whether one of the sexual assault crimes
. . . is so brutal and shocking when compared with
the other, that a jury, even with proper instructions,
could not treat them separately.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Id., 377.
Accordingly, we conclude that the cases involving
C2 and C3 were improperly consolidated for trial with
the case involving C1, and we reverse the judgments
of conviction and remand the cases for new trials.
II
Although our conclusion in part I of this opinion
requires that the cases be remanded to the trial court
for new trials, we also address the defendant’s claims
regarding the state’s introduction of a dog to provide
comfort and emotional support to C1 during her testi-
mony because that issue is likely to arise again on
retrial. See State v. Gupta, supra, 297 Conn. 234; State
v. Cote, 286 Conn. 603, 627, 945 A.2d 412 (2008). The
defendant claims that the court improperly permitted
the state to have a dog sit near C1 while she testified
to provide comfort and emotional support to her.9
Under the facts of this case, we conclude that the court
abused its discretion in permitting the use of the dog to
comfort and emotionally support C1 while she testified
without requiring the state to prove that this special
procedure was necessary for this witness.
The following facts are relevant to our resolution of
this claim. On July 5, 2011, the state filed a motion,
specifically pursuant to General Statutes § 54-86g (b),
‘‘for special procedures,’’ requesting, in part, that the
court permit the use of a ‘‘therapy dog . . . to sit in
close proximity to [C1] during the child’s testimony,
provided that such dog and the dog’s handler shall not
obscure the child from the view of the defendant or
the jury . . . .’’10 During an initial hearing, the state
explained that although C1 did not have any concerns
about testifying in front of the defendant, she was con-
cerned about the presence of other people. The state
then explained that it thought the use of a ‘‘therapy
dog’’ while she was testifying would comfort her, but
that she had not yet met the dog. The court conducted,
what it termed, a ‘‘Jarzbek level hearing’’ on the matter
three days later. See State v. Jarzbek, 204 Conn. 683,
529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108
S. Ct. 1017, 98 L. Ed. 2d 982 (1988). The state presented
testimony from David Meyers, a child therapist, who
owned a ‘‘service dog’’ named Summer. Meyers testified
that he had purchased the ‘‘service dog’’ for therapeutic
use in his practice. He also stated that this dog had
never participated in a court hearing before and that
she was not yet certified as a service dog. Meyers
explained that service dogs or therapy dogs can be
useful in alleviating some of the anxiety suffered by
children. Meyers further testified that he and the dog
had met C1 earlier in the day, spending one hour with
her, and that they had visited the courtroom together.
Although C1 initially refused to touch the dog and said
she was fearful, she soon warmed up to it and then
told Meyers that she would feel more comfortable if
the dog were with her when she testified in court. Upon
questioning by defense counsel, Meyers stated that he
was unaware of any studies that had determined that
the testimony of a witness would be more reliable or
truthful if a therapeutic dog were present during the
testimony. He further testified that he had never met
C1 before that day, that his interaction with her was
only in the presence of the dog, and that he had no
idea how she would have acted had the dog not been
present. He also acknowledged that the anxiety C1 had
that day could have been related to her fear of the dog
and of meeting him for the first time. The defendant
objected to the use of the dog, and argued that the use
of the dog was not specifically permitted by § 54-86g
(b), that the use of the dog would improperly influence
the jury, making C1 appear to the jury even more sympa-
thetic and vulnerable, and that there was no demon-
strated need for the use of the dog.
Following the hearing, the court stated that it had
conducted some independent research and was taking
judicial notice of the website www.courthousedogs.-
com and that it believed it had the authority to allow
the presence of the dog pursuant to § 54-86g and the
exercise of the court’s discretion. The court then ruled,
after ‘‘applying a strict standard of clear and convincing
evidence, that . . . [it] should allow all reasonable
tools to make the courtroom a place of comfort and
reliability for any witness, but especially a child witness,
who, it is alleged, has faced child sexual abuse.’’ The
court then explained that any potential prejudice
resulting from the presence of the dog would be cured
‘‘with proper curative instruction[s] from the court and
[from] other appropriate safeguards that [it] intend[ed]
to take.’’ In its instructions, the court referred to the
dog as a ‘‘service dog’’ rather than a therapy dog or
facility dog. We conclude that § 54-86g as currently writ-
ten does not give the court the specific authority to
allow the presence of a dog while a child witness testi-
fies and that, although the court has the inherent discre-
tion to allow the use of comfort tools, under the facts
of this case, the court abused its discretion because
there was no proper prior showing that C1 needed the
presence of the dog when she testified.
We first address whether the court had the authority
under § 54-86g (b) to permit the dog to sit next to C1
while she testified. This presents an issue of statutory
construction. ‘‘The principles that govern statutory con-
struction are well established. When construing a stat-
ute, [o]ur fundamental objective is to ascertain and give
effect to the apparent intent of the legislature. . . . In
other words, we seek to determine, in a reasoned man-
ner, the meaning of the statutory language as applied
to the facts of [the] case, including the question of
whether the language actually does apply. . . . In seek-
ing to determine that meaning, General Statutes § 1-2z
directs us first to consider the text of the statute itself
and its relationship to other statutes. If, after examining
such text and considering such relationship, the mean-
ing of such text is plain and unambiguous and does
not yield absurd or unworkable results, extratextual
evidence of the meaning of the statute shall not be
considered.’’ (Internal quotation marks omitted.) State
v. Thompson, 305 Conn. 806, 818–19, 48 A.3d 640 (2012).
Section 54-86g (b) provides: ‘‘In any criminal prosecu-
tion of an offense involving assault, sexual assault or
abuse of a child twelve years of age or younger, the
court may, upon motion of the attorney for any party,
order that the following procedures be used when the
testimony of the child is taken: (1) Persons shall be
prohibited from entering and leaving the courtroom
during the child’s testimony; (2) an adult who is known
to the child and with whom the child feels comfortable
shall be permitted to sit in close proximity to the child
during the child’s testimony, provided such person shall
not obscure the child from the view of the defendant
or the trier of fact; (3) the use of anatomically correct
dolls by the child shall be permitted; and (4) the attor-
neys for the defendant and for the state shall question
the child while seated at a table positioned in front of
the child, shall remain seated while posing objections
and shall ask questions and pose objections in a manner
which is not intimidating to the child.’’
The text of this statute clearly states what special
courtroom procedures it permits for child victims who
were under the age of twelve when they suffered abuse:
a court may prohibit persons from entering and leaving
the courtroom, require attorneys to remain seated, per-
mit the use of anatomically correct dolls to elicit testi-
mony, and permit an adult with whom the child is
familiar to sit in close proximity to the child during
testimony; the statute also forbids intimidating ques-
tioning or objections. The use of a live dog is not listed
as a special procedure. Prior judicial interpretation of
the statute has narrowly limited it to its terms. See also
State v. McPhee, 58 Conn. App. 501, 506–507, 755 A.2d
893 (§ 54-86g [b] does not apply to child witness holding
stuffed animal while testifying), cert. denied, 254 Conn.
920, 759 A.2d 1026 (2000). Accordingly, we conclude
that the court did not have the authority, pursuant to the
plain and unambiguous text of § 54-86g (b), to permit a
dog to sit beside C1 while she testified.
We next examine whether the court had discretionary
authority separate from its statutory authority pursuant
to § 54-86g (b) to permit the dog to sit near C1 while
she testified. Under the facts of this case, we conclude
that the court did have such inherent general discretion-
ary authority to do so despite the absence of specific
authority pursuant to § 54-86g (b), but that the court
abused its discretion under the facts of this case.
‘‘The function of the court in a criminal trial is to
conduct a fair and impartial proceeding. . . . A trial
judge in a criminal case may take all steps reasonably
necessary for the orderly progress of the trial. . . .
When the rights of those other than the parties are
implicated, [t]he trial judge has the responsibility for
safeguarding both the rights of the accused and the
interests of the public in the administration of criminal
justice. . . . Moreover, [t]he [ability] of a witness [to
testify reliably] is a matter peculiarly within the discre-
tion of the trial court and its ruling will be disturbed
only in a clear case of abuse or of some error in law.’’
(Citations omitted; internal quotation marks omitted.)
State v. Torres, 60 Conn. App. 562, 569–70, 761 A.2d 766
(2000), cert. denied, 255 Conn. 925, 767 A.2d 100 (2001).
Although the issue of using a dog as a comfort tool
for a child witness is an issue of first impression in our
state, we find guidance in other cases from our state
and from our fellow states, which aid us in our analysis.
We first look to Torres, a case in which the trial court
´
permitted the fiance of the witness to sit beside her
while she testified. Id., 569. The witness, who had been
approximately twelve years old at the time the six years
of sexual abuse began, became extremely frightened
when called to testify in court. Id., 564–65. ‘‘Upon enter-
ing the foyer of the courtroom, she broke down and
cried, ‘No, no, no.’ [She] refused to proceed into the
courtroom to testify.’’ Id., 565. The state asked the court
to permit the witness’ fiance to sit outside the witness
box while she testified. Id., 565–66. The court granted
the request. Id. On appeal, the defendant claimed that
´
the presence of the fiance bolstered the witness’ credi-
bility. Id., 569. The Appellate Court disagreed: ‘‘The
evidence adequately supports the court’s decision to
allow [the witness’] fiance to be seated next to the
witness during her testimony. The court based its deci-
sion on testimony concerning [the witness’] mental
capacity and the court’s own observations of [the wit-
ness’] distress and anxiety about testifying. . . .
Implicit in the court’s decision is the finding that [the
witness] required the accommodation in order to pro-
vide testimony.’’ (Emphasis added; footnotes omitted.)
Id., 570.
We also look to State v. Palabay, 9 Haw. App. 414,
417, 844 P.2d 1 (1992), cert. denied, 74 Haw. 652, 849
P.2d 81 (1993), a case wherein the victim, who was
twelve years old at the time she testified, had been
asked to approach an exhibit board, when defense
counsel noticed, for the first time, that the victim was
holding a teddy bear. Id., 420. Counsel objected and
argued that there had been no showing that the teddy
bear was necessary for the victim’s testimony. Id., 421.
The court initially overruled the objection, but when
counsel objected a second time, the court sustained
the objection. Id. On appeal, the defendant claimed that
the court erred in overruling his first objection, which
deprived him of his constitutional right to a fair trial.
Id. He argued that ‘‘the teddy bear bestowed on [the
victim] an unwarranted aura of vulnerability, naivete,
ingenuousness, purity, and credibility . . . .’’ (Internal
quotation marks omitted.) Id. In this issue of first
impression in Hawaii, the Intermediate Court of
Appeals agreed with the defendant that the trial court
committed error, holding that ‘‘there [was] no evidence
. . . to indicate the compelling necessity for [the vic-
tim] to hold a teddy bear while testifying. Absent the
finding of necessity . . . [it] conclude[d] that it was
error for the trial court to allow [the victim] to testify
while holding a teddy bear.’’ (Emphasis added.) Id.,
424. The court ultimately, however, determined that the
error was harmless.11 Id., 434.
More on point with the present case, our research
has found three cases that have considered the use of
a dog to aid a victim while he or she testified. Recently,
in State v. Dye, 178 Wash. 2d 541, 309 P.3d 1192 (2013)
(en banc), the Washington Supreme Court considered,
for the first time, whether it was error for the trial court
to permit the use of a facility dog to aid the testimony
of a victim who had the mental age of a child between
the ages of six and twelve. Id., 544, 549. The Supreme
Court explained: ‘‘This case requires us to determine
whether a court may allow a witness to be accompanied
by a comfort animal, here a dog, when testifying during
trial. . . . We recognize that some trial procedures,
such as providing a child witness with a toy on the
stand or shackling a defendant at trial, may risk coloring
the perceptions of the jury. But trial courts are capable
of addressing these risks.’’ Id., 543–44.
In Dye, the victim was a mentally disabled man whose
home had been burglarized, after which he had become
very fearful. Id., 544–45. Before trial, the victim was
interviewed by the defense, while in the company of
the prosecutor’s facility dog. Id., 545–46. The victim
then asked that the dog be permitted to sit beside him
when he testified because he was fearful of the defen-
dant. Id., 546. The court granted the request. Id. The
Court of Appeals affirmed the defendant’s conviction,
and the case further was appealed to the Washington
Supreme Court, where the defendant claimed that the
dog’s presence violated his rights to due process and
a fair trial. Id., 547. In this issue of first impression, the
court analyzed cases from around the country involving
the use of special procedures, including a doll, a toy,
a dog, and other things, and found that the cases had
several things in common: (1) most employed the abuse
of discretion standard; (2) the cases involved highly
egregious facts; and (3) the cases were split on ‘‘whether
the prosecution must prove that the special measure
is necessary to secure the [witness’] testimony.’’ Id., 551.
The court discussed the varying requirements from
different states, ranging from the ‘‘substantial need stan-
dard’’ in Delaware, to the ‘‘compelling necessity’’ stan-
dard in Hawaii, to the requirement that the record
‘‘clearly indicat[e] that the witness would have difficulty
testifying in the absence of the comfort item or support
person’’ in several other states. Id., 552. The Washington
Supreme Court then determined that the most appro-
priate standard for the trial court to employ is that the
witness have a need for the support animal and that
the court consider that need. Id., 553. Applying the
abuse of discretion standard, the Washington Supreme
Court then stated that the trial court in that case clearly
had understood that the dog was needed to facilitate
the victim’s testimony because of his mental disability
and that the trial court impliedly found that the victim
would not testify without the dog. Id., 554–55. Accord-
ingly, the court held: ‘‘Here, the trial court acted within
its broad discretion when it determined that Ellie, the
facility dog provided by the prosecutor’s office to the
victim . . . was needed in light of [the victim’s] severe
developmental disabilities in order for [the victim] to
testify adequately.’’ (Emphasis added.) Id., 544.
The second case involving the use of a dog is People
v. Tohom, 109 A.D. 3d 253, 969 N.Y.S.2d 123 (2013).
In Tohom, the sexual assault victim was experiencing
symptoms of post-traumatic stress disorder, had
expressed anxiety about having to testify and did not
feel safe because of ‘‘the way that members of her family
have made her feel about this situation . . . .’’ Id., 257.
The state filed a motion to allow the victim to testify
in the presence of a dog that had been very useful to
the victim during interviews and in therapy sessions.
Id. 256. The state argued that the dog would be akin to
a supportive person, who is allowed to accompany a
child witness under New York Executive Law § 642-a.12
Id. The trial court permitted the dog to accompany
the victim while she testified, finding that the victim’s
‘‘testimony was likely to cause severe emotional, mental
and psychological stress, which necessitates the consid-
eration of procedures to protect [her] mental and emo-
tional well-being while testifying.’’ (Internal quotation
marks omitted.) Id., 258. On appeal, the defendant
argued, inter alia, that § 642-a did not give the court
the authority to permit the use of the dog and that his
right to a fair trial was violated. Id., 260. In this issue
of first impression in New York, the New York Appellate
Division stated that, although the language of § 642-a
did not permit the use of dog specifically, the stated
‘‘purpose of the legislation was to address the emotional
stress [that] a child victim might endure . . . .’’ Id.,
261. Accordingly, it concluded that § 642-a applied in
that case, giving the court the authority to permit the
use of a ‘‘therapy assistance animal.’’ Id. As to the defen-
dant’s argument that the state first must show compel-
ling necessity under § 642-a, the court held that § 642-
a contained no such requirement, but that the trial court
was allowed to ‘‘[fashion] . . . an appropriate measure
to address a testifying child witness’s emotional or psy-
chological stress, based upon the particular needs of
that child . . . .’’ (Citations omitted; emphasis added.)
Id., 266. The court also considered the defendant’s claim
that his right to a fair trial was tainted because the
dog engendered sympathy for the victim. Id., 268. The
Appellate Division disagreed, concluding that the trial
court properly had balanced the ‘‘need for [the dog]
during [the victim’s] testimony against the potential
prejudice to the defendant.’’ (Emphasis added.) Id., 271.
Finally, in People v. Spence, 212 Cal. App. 4th 478,
151 Cal. Rptr. 3d 374 (2012), review denied, 2013 Cal.
LEXIS 3209 (Cal. April 10, 2013), the California Court
of Appeal also considered the use of a dog to aid a
child victim while she testified. The victim was very
emotional when discussing her abuse with health work-
ers, and the state asked that the court allow it to use
a dog because it was concerned that the victim would
have an ‘‘emotional meltdown and refuse to testify
. . . .’’ Id., 512. The trial court granted the state’s
motion. Id. On appeal, the defendant argued, inter alia,
that the court had to find necessity before granting
this special request. Id., 511. The court found no error,
concluding that the trial court had made ‘‘implied find-
ings of necessity . . . .’’ (Emphasis added.) Id., 518.
We find these cases and the analysis employed
therein informative. In the present case, we conclude
that although the court has the inherent general discre-
tionary authority to permit a suitably trained dog to sit
near a witness when a need clearly is demonstrated, in
this particular case, the court abused its discretion in
granting the state’s motion to permit the dog to sit near
C1 on the witness stand while she testified because
there was no finding, nor was there a showing, that this
special procedure was needed.
Here, C1 was not afraid to testify in front of the
defendant, but she was uncomfortable with all the other
people in the courtroom. In response to that concern,
the court ordered that the doors to the courtroom be
closed, that the courtroom be kept quiet, and that peo-
ple refrain from coming and going during C1’s testi-
mony. On the day of the hearing on the motion for
special procedures, the state brought in a therapist,
Meyers, whom C1 had never met and a dog that she
did not know and of which she initially was afraid.
Meyers and the dog spent only one hour with C1 before
he testified about the benefits of therapy dogs and about
the calming effect that this dog had on C1 once she
became comfortable with it. When asked by defense
counsel whether C1’s initial discomfort and anxiety
could have been because of her fear of meeting him
and the dog for the first time, Meyers said yes, and
explained that C1 had been quite afraid of the dog
initially. He admitted to never having met C1 outside
of the presence of the dog and that he had no idea if
the presence of the dog would increase C1’s reliability
or truthfulness when she testified. He also stated that
he had never used this dog at a jury trial before and
that she was not yet certified as a service dog.
In ruling on the state’s motion to allow the use of
the dog, the court stated that it found by clear and
convincing evidence that it ‘‘should allow all reasonable
tools to make the courtroom a place of comfort and
reliability for any witness, but especially a child witness,
who it is alleged, has faced child sexual abuse,’’ but the
court did not make any finding that there was a need
for this special procedure to be implemented for C1,
and that use of such special procedure would not deny
the defendant a fair trial. Accordingly, we conclude that
the court abused its discretion.13
The judgments are reversed and the cases are
remanded for new trials.
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 victims or others through
whom the victims’ identities may be ascertained. See General Statutes
§ 54-86e.
** The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The defendant was charged in docket number CR-10-642409 with three
crimes related to C1, one count of sexual assault in the first degree for
engaging in sexual intercourse with her, one count of risk of injury to a
child for showing her a pornographic movie and another count of risk of
injury to a child for having contact with her intimate parts in a sexual and
indecent manner likely to impair her morals.
2
The defendant was charged in docket number CR-10-642410 with five
crimes related to C2, two counts of sexual assault in the first degree for
engaging in sexual intercourse with him, one count of risk of injury to a
child for showing him a pornographic movie, and two counts of risk of
injury to a child for having contact with C2’s intimate parts in a sexual and
indecent manner likely to impair his morals.
3
The defendant was charged in docket number CR-10-643139 with three
crimes related to C3, one count of sexual assault in the first degree for
engaging in sexual intercourse with him, one count of risk of injury to a
child for showing him a pornographic movie, and one count of risk of injury
to a child for having contact with C3’s intimate parts in a sexual and indecent
manner likely to impair his morals.
4
As explained in State v. LaFleur, 307 Conn. 115, 159, 51 A.3d 1048 (2012):
‘‘It is clear that, in light of Payne, the trial court should not have applied a
presumption in favor of joinder. State v. Payne, supra, 303 Conn. 547–49.
That impropriety is not dispositive, however, in light of the trial court’s
determination that none of the Boscarino factors were present.’’
5
The court later instructed the jury, however, that the evidence from
each case was cross admissible in the other cases to prove the defendant’s
propensity to commit crimes of an ‘‘abhorrent and compulsive’’ sexual
nature.
On appeal, in addition to addressing the Boscarino factors, both parties
address this claim in light of the propensity standard for the admission of
misconduct evidence in cases concerning crimes of a sexual nature that
was adopted in State v. DeJesus, supra, 288 Conn. 470–74. In accordance
with our Supreme Court’s established practice, we will review this issue
pursuant to the propensity exception articulated in DeJesus because the
factors that guide our inquiry remain the same. See id., 476–77 (‘‘[i]n assessing
the relevancy of such evidence, and in balancing its probative value against
its prejudicial effect, the trial court should be guided by this court’s prior
precedent construing the scope and contours of the liberal standard pursuant
to which evidence of uncharged misconduct previously was admitted under
the common scheme or plan exception’’); see also, e.g., State v. Gupta, 297
Conn. 211, 225 n.7, 998 A.2d 1085 (2010) (‘‘[T]he underlying decisions in the
present case rested on the cross admissibility of the evidence under the
liberal common plan or scheme exception, not the propensity exception.
As DeJesus makes clear, however, although we changed the label of the
exception, we did not change the parameters that such evidence must satisfy
to be admissible.’’).
6
We do not rule on each charge in each information separately, but rule
on each information as a whole. Although it is possible that some of the
evidence related to certain charges in the separate informations might be
cross admissible, we conclude that the evidence as a whole in the case
involving C1 is not cross admissible in the cases involving C2 and C3, and
vice versa.
7
Following the release of State v. DeJesus, supra, 288 Conn. 418, § 4-5 of
the Connecticut Code of Evidence was amended to conform to that decision.
The rule, as amended, provides: ‘‘(a) General Rule. Evidence of other crimes,
wrongs or acts of a person is inadmissible to prove the bad character,
propensity, or criminal tendencies of that person except as provided in
subsection (b).
‘‘(b) When evidence of other sexual misconduct is admissible to prove
propensity. Evidence of other sexual misconduct is admissible in a criminal
case to establish that the defendant had a tendency or a propensity to engage
in aberrant and compulsive sexual misconduct if: (1) the case involves
aberrant and compulsive sexual misconduct; (2) the trial court finds that
the evidence is relevant to a charged offense in that the other sexual miscon-
duct is not too remote in time, was allegedly committed upon a person
similar to the alleged victim, and was otherwise similar in nature and circum-
stances to the aberrant and compulsive sexual misconduct at issue in the
case; and (3) the trial court finds that the probative value of the evidence
outweighs its prejudicial effect.
‘‘(c) When evidence of other crimes, wrongs or acts is admissible. Evidence
of other crimes, wrongs or acts of a person is admissible for purposes other
than those specified in subsection (a), such as to prove intent, identity,
malice, motive, common plan or scheme, absence of mistake or accident,
knowledge, a system of criminal activity, or an element of the crime, or to
corroborate crucial prosecution testimony.
‘‘(d) Specific instances of conduct when character in issue. In cases in
which character or a trait of character of a person in relation to a charge,
claim or defense is in issue, proof shall be made by evidence of specific
instances of the person’s conduct.’’ Conn. Code Evid. § 4-5 (effective January
1, 2012), 73 Conn. L.J. No. 1, pp. 211PB-212PB (July 5, 2011).
8
The defendant points out in his brief: ‘‘In reaching its ruling, the court
acknowledged the bind the defendant is placed in when, on one hand, for
purposes of Boscarino, the defendant must argue that the cases are so
similar that the jury will confuse them and improperly aggregate the facts,
and, on the other hand, for the purposes of DeJesus, the defendant must
argue that the facts are discernible and distinct and thus not cross admissible
as misconduct evidence.’’ We acknowledge that these opposing factors could
put a defendant in an untenable position.
9
The defendant claims that his right to a fair trial and his right to confronta-
tion were violated. We note, however, that the defendant specifically told
the trial court that he was not making a confrontation clause claim related
to the dog issue. Accordingly, we consider that claim waived.
10
We recognize that there is a differentiation between service dogs, ther-
apy dogs and facility dogs. Although this and other nomenclature frequently
is used interchangeably to describe some specially trained dogs, as occurred
in the present case, those dogs serve different functions and generally have
different training.
Service dogs, which include, inter alia, guide dogs or assistance dogs; see
General Statutes §§ 46a-44 and 46a-64; are dogs that are specially trained
to provide aid to people with physical disabilities. The ability to use service
dogs in public buildings or places of accommodation is protected by federal
and state antidiscrimination laws. See, e.g., General Statutes §§ 46a-44 and
46a-64.
For purposes of implementing the Americans with Disabilities Act, the
civil rights division, disability rights section, of the United States Department
of Justice, defines service animals as ‘‘dogs that are individually trained to
do work or perform tasks for people with disabilities . . . includ[ing] guid-
ing people who are blind, alerting people who are deaf, pulling a wheelchair
. . . reminding a person with mental illness to take prescribed medications,
calming a person with Post Traumatic Stress Disorder . . . during an anxi-
ety attack, or performing other duties. Service animals are working animals,
not pets. The work or task a dog has been trained to provide must be directly
related to the person’s disability. Dogs whose sole function is to provide
comfort or emotional support do not qualify as service animals under the
[Americans with Disabilities Act].’’ United States Department of Justice,
‘‘ADA 2010 Revised Requirements: Service Animals,’’ (July 2011), available
at http://www.ada.gov/service animals 2010.pdf (last visited May 13, 2014).
The preferred term for a dog used in a courthouse setting to provide
comfort to a witness is ‘‘ ‘facility dog,’ [al]though cases and the literature
on the subject have also called them testimony dogs, courthouse dogs,
companion dogs, therapy dogs, service dogs, comfort dogs, therapy assis-
tance dogs, support canines, and therapeutic comfort dogs. Most of these
terms imply canine functions in providing comfort or reducing anxiety and
should be avoided because the function of the dogs in a courtroom setting
is far more specific. Most dogs described in cases [thus] far have been
trained in a manner similar to how therapy dogs are trained, but not all
dogs were actually trained or certified therapy dogs so this term would also
be confusing. A service dog is generally a dog that assists a particular
individual with a disability . . . . Therefore, that term is also best avoided.
Companion dogs are generally pets . . . . Calling a dog a courthouse dog
has a clever journalistic ring, but might suggest the dog lives in the court-
house . . . .’’ J. Ensminger, Animal Legal & Historical Center, Michigan
State University College of Law, ‘‘Recent Cases on the Use of Facility Dogs
by Witnesses While Testifying’’ (2012) p. 2, available at http://www.animal-
law.info/articles/arusensmingerfacilitydog2012.htm (last visited May 13,
2014).
‘‘A facility dog can interact with people in courthouse public areas, child
advocacy centers, and drug courts; play with office staff; participate in
forensic interviews; calm victims and witnesses; and accompany witnesses
to the stand in a courtroom. Facility dogs are not the same as therapy dogs.
Courtroom work can be stressful for an inadequately trained dog—there
may be angry shouts, an upset defendant, weeping witnesses, and crowded
benches. Therapy dog training is not the appropriate training for a dog [that]
will be in court accompanying witnesses to the stand. The professional
working dog will be less affected by the stress of a courtroom trial activity.
See www.courthousedogs.com/pdf/Therapy%20Dogs.pdf.’’ G. Sandoval,
‘‘Court Facility Dogs—Easing the Apprehensive Witness,’’ 39 The Colorado
Lawyer 17 n.5 (April 2010).
11
In State v. Aponte, 249 Conn. 735, 745, 738 A.2d 117 (1999), our Supreme
Court determined that the defendant’s right to a fair trial was jeopardized
by the prosecutor’s gifting of a Barney doll to a child victim to hold while
she testified. In dicta, however, the court stated that a child bringing a special
doll from home would be permissible. Id., 744–45. The court explained: ‘‘The
defendant acknowledges that it would have been proper to allow the victim
to bring a doll from home to hold as a comfort object during her testimony.
See, e.g., State v. Palabay, supra, 9 Haw. App. 417. Many children derive
comfort from a favorite toy or stuffed animal. A child witness should be
permitted to bring their particular favorite object with them. These comfort-
ing objects are more than mere toys. They symbolically represent a little
bit of a mother’s ability to soothe the child when frightened or nervous.
Their presence helps children calm themselves when parents are not immedi-
ately on hand. . . . J. Myers, K. Saywitz & G. Goodman, Psychological
Research on Children as Witnesses: Practical Implications for Forensic Inter-
views and Courtroom Testimony, 28 Pac. L.J. 3, 71 (1996). Therefore, had
the victim simply brought a favorite object from home, there would have
been no basis for objection.’’ (Internal quotation marks omitted.) State v.
Aponte, supra, 744–45. We are confused by the court’s reliance on Palabay
to support the proposition that a child properly could bring a doll from
home to hold while he or she testified in light of the holding in Palabay
that it was error for the trial court to have allowed the child to hold a teddy
bear without a showing of necessity. See State v. Palabay, supra, 424.
Nevertheless, because this language was not necessary to the court’s holding
in Aponte, we view it as dicta.
12
‘‘Executive Law § 642-a states, in pertinent part:
‘‘To the extent permitted by law, . . . the courts shall comply with the
following guidelines in their treatment of child victims: . . .
‘‘4. The judge presiding should be sensitive to the psychological and
emotional stress a child witness may undergo when testifying.
‘‘5. In accordance with the provisions of article sixty-five of the criminal
procedure law, when appropriate, a child witness . . . should be permitted
to testify via live, two-way closed circuit television.
‘‘6. In accordance with the provisions of section 190.32 of the criminal
procedure law, a person supportive of the child witness or special witness
. . . should be permitted to be present and accessible to a child witness
at all times during his testimony, although the person supportive of the
child witness should not be permitted to influence the child’s testimony.’’
(Internal quotation marks omitted.) People v. Tohom, supra, 109 A.D.
3d 261–62.
13
Because the judgments of conviction are being reversed and the cases
are being remanded for new trials, we need not examine whether the court
cured any possible prejudice by its very thorough and thoughtful jury instruc-
tions related to the issue of the dog.