Petition for Writ of Certiorari — Person v. Meachum
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| FILED
91 1485 MAY 15 1999
No.
OFFIGE OF THE CLERK
In The
Supreme Court Of The United States
October Term, 1991
4
ERIC N. PERSON,
Petitioner,
LARRY MEACHUM,
Respondent.
+
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
¢
HUBERT J. SANTOS, ESQ
51 Russ Street
Hartford, CT 06106
(203) 249-6548
Counsel of Record for Petitioner
Printed by
Brescia’s Printing Services, Inc
66 Connecticut Boulevard
East Hartford, CT 06108
528-4254
ee ee
QUESTION PRESENTED FOR REVIEW
WHETHER THE PETITIONER WAS
DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO
PRESENT A DEFENSE AND CONFRONT THE
WITNESSES AGAINST HIM WHEN THE TRIAL
COURT PREVENTED THE PETITIONER FROM
PRESENTING MATERIAL EVIDENCE RELATING
TO THE SOURCE OF CHILD COMPLAINANT’S
KNOWLEDGE OF SEX?
TABLE OF CONTENT
QUESTION PRESENTED ........
TABLE OF CONTENTS ...... li, ill
TABLE OF AUTHORITIES .. iv, v, vi
OPINIONS BELOW .......... Vill
FREER 666 664 ae ix
CONSTITUTIONAL
PROVISIONS INVOLVED ..... IX, X
STATUTORY
PROVISIONS INVOLVED ..... X, xl
STATEMENT OF THE CASE ...... l
REASON FOR GRANTING THE WRIT
THE COURT OF APPEALS
ERRED IN HOLDING THAT
THE EXCLUSION OF MATERIAL
EVIDENCE CONCERNING
DEFENDANT’S GUILT DID NOT
AMOUNT TO A VIOLATION OF
PETITIONER’S SIXTH AMENDMENT
RIGHTS UNDER THIS COURT’S
HOLDINGS IN CHAMBERS V.
MISSISSiPPI AND WASHINGTON
¥. Ss cs oe ee 9
IE tt ee 16
eg tt. GE LA
1
TABLE OF AUTHORITIES
Federal Cases:
California v. Green, 399 U.S.
149, 177, 90 S. Ct. 1930, 26
we Ft eee 10
Chambers v. Mississippi, 410 U.S.
284, 93 S. Ct. 1038, 35
L. GS. oe ae (1975)... 9,10,12,16
Davis v. Alaska, 415 U.S.
308, 94 S. Ct. 1105, 39
eS Ff) ee 10,12
Gideon v. Wainwright, 372 U.S.
335, 83 S. Ct. 792, 9
me @ 2 i | eee 10
Kentucky v. Stincer, 482 U.S.
730, 107 S. Ct. 2658, 96
ee ae rr 10
Mary] Vv a 2 Sa
110 S. Ct. 3157,
111 L. Ed. 2d 666 (1990) .... 11,15,16
Miranda v. Arizona, 384 U.S.
436, 86 S. Ct. 1602, 16
L. Bd. 2d G34 (1966) .\......... 10
Ohio v. Roberts, 488 U.S.
56, 100 S. Ct. 2531, 65
ee ei: 11,12
Pennsylvania v. Ritchie, 480 U.S.
39, 107 S. Ct. 989, 94
we Se et) y) 12
Pointer v. Texas, 380 U.S.
400, 93 S. Ct. 351, 34
a. we Rt): ee 9,10,11,16
Rosario v. Kuhlman, 839,
ob) Bote le ee 8,13
Taylor v. Illinois, 484 U.S.
400, 108 S. Ct. 646, 98
ies Ee Ot POU bs oe es 1]
United States v. Augrs, 427 U.S.
97, 96 S. Ct. 2392, 49
Li Se A ee CPD se ee a 13,14
United States v. Nixon, 422 U.S.
225, 94 S. Ct. 3090, 41
ee ey. | 9
United States v. Nobles, 422 U.S.
225, 95 S. Ct. 2160, 45
bai se ee RET eae eee ea Y
Washington v. Texas, 388 U.S.
14, 87 S.Ct 1920, 18
L. Ed. 2d 1019 (1967) ....... 9,10,11
Webb v. Texas, 409 U.S.
95, 93 S.Ct. 351, 34
me & ffs, rere 9
State Cases:
Commonwealth v. Ruffen, 399 Mass.
811, S07 N.E.2d 684 (1987) .... 15,16
State v. Carver, 37 Wash. App.
122, 678 P.2d 842 (1984) ........ 16
State v. Howard, 121 N.H. 53,
GP Ai.ae Get CNP) 6c we cw ees 16
State v. Oliver, 158 Ariz. 22,
TOO P.a6 TGFl (ISGe) we ee es 16
State v. Padilla, 110 Wis.2d
414, 328 N.W.2d 263 (1982) ...... 16
State v. Person, 20 Conn. App.
115, 564 A.2d 626 (1989) ..... viii, 5,6
State v. Person, 215 Conn.
653, 577 A.2d 1036 (1990) .... passim
United States Constitution:
Sixth Amendment .......... passim
Fourteenth Amendment .......... iX
v1
Connecticut General Statutes:
7 ES Bren ae OL en a ee x, 1
TREES <b 5.4 oo oh 0s OO l
ee 8 arene te mi
SP Ss 5 av he ee eee ee x,4,5
Vil
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1991
ERIC N. PERSON, Petitioner
v.
LARRY MEACHUM, Respondent
PETITION FOR A WRIT OF CERTIORARI
TO THE COURT OF APPEALS FOR THE SECOND
CIRCUIT OF THE UNITED STATES OF AMERICA
TO THE HONORABLE CHIEF JUSTICE AND
ASSOCIATE JUSTICES OF THE SUPREME COURT OF
THE UNITED STATES:
The Petitioner, Eric N. Person, respectfully prays that
a writ of certiorari issue to review the order of the Court
of Appeals for the Second Circuit entered in’ this
proceeding on February 18, 1992.
Vill
OPINIONS BELOW
The Court of Appeals for the Second Circuit issued its
opinion affirming the denial of the Petitioner’s Motion for
Summary Judgment on Petition for Habeas Corpus relief
under 28 U.S.C. § 2254 on February 18, 1992, which
opinion was unreported. (App. A).
Preceding the Second Circuit Court of Appeal’s
decision, the District Court for the District of Connecticut
denied the Petitioner’s Motion for Summary Judgment on.
his Petition for Habeas Corpus Relief and granted the
Respondent’s Motion for Summary Judgment on the
petition. The District Court’s decision is reported in Person
v. Meachum, 772 F. Supp. 69 (1991). (App. B).
Preceding the Petition for Habeas Corpu., the
Connecticut Supreme Court issued an opinion affirming
Petitioner’s conviction on charges of sexual assault in the
second degree and risk of injury to a minor, which decision
is reported in State v. Person, 215 Conn. 653, 577 A.2d
1036 (1990). (App. C). A petition for writ of certiorari
from this Court to the Connecticut Supreme Court was
denied on January 14, 1991, Person vy. Connecticut, oe
U.S. , 111 S. Ct. 756 (1991).
Preceding the Connecticut Supreme Court decision, the
Connecticut Appellate Court issued its opinion affirming
the Petitioner’s conviction on September 26, 1989, which
decision is reported in State v. Person, 20 Conn.App 115,
564 A.2d 626 (1989). (App. D).
JURISDICTION
The order of the Second Circuit Court of Appeals was
rendered on February 18, 1992. This petition for a writ of
certiorari was filed within ninety (90) days of that denial.
Therefore, this Court’s jurisdiction is invoked pursuant to
28 U.S.C. Sec. 1254(1).
CONSTITUTIONAL PROVISIONS INVOLVED
Sixth Amendment
In all criminal prosecutions, the accused shaii enjoy the
right to a speedy and public trial, by an impartial jury of
the State and district wherein the crime shall have been
committed, which district shall have been previously
ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining
witnesses in his favor, and to have the Assistance of
Counsel for his defense.
Fourteenth Amendment
Section 1. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens
of the United States and of the State wherein they reside.
No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny
to any person within its jurisdiction the equal protection of
the laws.
FEDERAL RULES OF EVIDENCE
Rule 403. Exclusion of Relevant Evidence on Grounds of
Prejudice, Confusion, or Waste of Time
Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading
the jury, or by consideration of undue delay, waste of time,
or needless presentation of cumulative evidence.
STATUTORY PROVISIONS INVOLVED
§$53-21. Injury or risk of injury to, or
impairing morals of, children
Any person who wilfully or unlawfully causes or
permits any child under the age of sixteen years to be
placed in such a situation that its life or limb is
endangered, or its health is likely to be injured, or its
morals likely to be impaired, or does any act likely to
impair the health or morals of any such child, shall be
fined not more than five hundred dollars or imprisoned not
more than ten years or both.
$53a-71. Sexual assault in the second degree: Class C
Felony: Nine months not suspendable.
(a) A person is guilty of sexual assault in the second \
degree when such person engages in sexual intercourse
X]
with another person and such other person is (1) under
sixteen years of age.
(b) Sexual assault in the second degree is a Class C felony
for which nine months of the sentence imposed may not
be suspended or reduced by the court.
§ 54-86e. Information re address or telephone number of
victim of sexual assault to be confidential
The name and address of the victim of a sexual assault
under section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b
or 53a-73a, or injury or risk of injury, or impairing of
morals under section 53-21, or of an attempt thereof shall
be confidential and shall be disclosed only upon order of
the superior court, except that such information shall be
available to the accused.
X1i
STATEMENT OF THE CASE
Trial Court Proceedings
Petitioner, Eric N. Person, was accused in a four count
information with sexually abusing his two children,
Jennifer and Jamie.’ Counts three and four involved his
daughter, Jamie, and charged the Petitioner with risk of
injury in violation of Conn. Gen. Stat. § 53-21 and sexual
assault in the second degree in violation of Conn. Gen.
Stat. § 53a-71(a)(1). After a jury trial, the Petitioner was
found guilty of counts three and four involving Jamie.
At trial, the state’s case centered on the testimony of
Petitioner’s eight year old daughter, Jamie Person. The
Petitioner and his ex-wife had joint custody of Jamie who
visited the Petitioner on weekends at his apartment.
(Transcript of, hereinafter, "T", 11-24-88 at 27). Jamie
testified that during her visits the Petitioner would take her
into his bedroom and engage in sexual acts. (T. 11-12-87
at 30-37). To corroborate Jamie’s testimony by way of
constancy of accusation, the State also called Jamie’s
mother, Debra Person, and Detective Yakacki. (T. 11-17-
87 at 152-162). The prosecution also called Jamie’s
brother, Cameron, and Jamie’s pediatrician, Dr. Hochstadt.
' Counts one and two involved his daughter, Jennifer, and
charged the petitioner with risk of injury in violation of Conn. Gen.
Stat. §53-21 and sexual assault in the fourth degree in violation of
Conn. Gen. Stat. §53a-73a(1)(D). The petitioner was found not
guilty of these counts.
The defense called as witnesses various persons who
visited with or saw the Petitioner at his apartment during
the time he was alleged to have assaulted Jamie. Joseph
Marzullo, the Petitioner’s landlord, testified that he
observed the Petitioner with his children and that he
believed the Petitioner was a good father, active with the
children and found Jamie to be very affectionate toward her
father. (T. 11-24-87 at 50-64). Eric "Ricky" Person, the
Petitioner’s son, also testified that during his visits with the
Petitioner Jamie was usually very happy. (T. 11-25-87 at
66).
Petitioner also testified in his own defense. (T. 12-2-87
at 11-105). He denied sexually abusing Jamie. He
explained that during the period Jamie and his other
children visited his Danbury apartment his close friend,
Dean Mercier was almost always present. Mercier visited
nearly every weekend and stayed overnight on occasion.
(T. 12-2-87 at 18-25). Mr. Mercier also stated that he
visited the Petitioner in Danbury on "about every weekend"
since May of 1984. (T. 12-2-87 at 137). He testified that
it appeared to him that the Petitioner had a very good
relationship with Jamie and his other children, and that he
had no reason to believe that the Petitioner had any kind of
unusual relationship with his children. (T. 12-2-87 at 151).
The state’s case against the Petitioner rested almost
entirely on the testimony of the Petitioner’s younger
daughter. She was the only person to directly testify that
any acts of deviant sexual contact ever occurred.
Despite the critica] nature of Petitioner’s daughter’s
testimony, the Petitioner was not allowed to introduce
certain evidence that his younger daughter’s best friend,
2
Lauren Ardell, had made strikingly similar accusations
against her own father two weeks prior to the time that
Petitioner’s daughter accused Petitioner of sexually abusing
her. The affidavit in support of Petitioner’s arrest and
Lauren’s father reveal the striking similarities in the two
cases.’ Lauren’s father’s arrest affidavit is dated February
24, 1987, and Petitioner’s arrest affidavit is dated March
10, 1987.
Jamie Person testified that the first person with whom
she discussed Petitioner’s conduct was her best friend
Lauren Ardell. (T. 11-2-87, 64). Apparently, the two girls
discussed the respective allegations of sexual abuse during
recess at school. (T. 11-12-87, 64) Lauren reported the
conversation to her mother who then informed Petitioner’s
wife, the alleged victim’s mother. (T. 11-12-87, 64-66).
Based on the foregoing, defense counsel sought to
examine Lauren to determine whether Petitioner’s
daughter’s knowledge of deviate sex was the result of what
she learned from Lauren. (T. 11-24-87, 15-17). Defense
counsel wanted to demonstrate an alternative source of
? See Arrest Warrant Application for John Ardell and Arrest
Warrant Application for Eric Person, Appendices E and F,
respectively. The warrants for petitioner’s arrest and John Ardell’s
arrest, reveal that Jamie and Lauren discussed the alleged sexual
abuse by their respective fathers. On February 3, 1987, when asked
by their respective mothers, both girls stated that their respective
fathers had asked them to suck their penises. Both girls went to the
same school, shared the same social worker, Susie Laffette, who
reported their respective complaints to police and the same
pediatrician, Dr. Judith Hochstadt who reported her findings to
police. Both girls were products of a divorce, who visited their
fathers on weekends. See Appendices E and F, respectively.
3
Jamie’s explicit sexual knowledge. Defense counsel wished
to explore the details of the alleged assault of Lauren by
her own father and an earlier incident of possible sexual
assault involving her baby sitter for the purpose of proving
the source of Jamie’s knowledge of sexual activity.
Defense counsel intended to rebut the state’s theory that the
only way that Petitioner’s younger daughter could have
learned of deviate sexual activity was from the actual abuse
by her father. Further, defense counsel intended to
demonstrate that Jamie got the idea of complaining against
her father from Lauren. Defense counsel also wanted to
show a motive and course of conduct by the two girls to
sexually fantasize and fabricate accusations. (T. 11-24-87,
15-17). Defense counsel wanted to uncover Lauren’s role
in the filing of a criminal complaint against the Petitioner.
Defense counsel stated that Lauren’s testimony was vital to
the defense, that the Petitioner was entitled to put his
theory of defense before the jury and that the jury should
have been allowed to decide whether Lauren was the true
reason why a complaint was made against the Petitioner.
(T. 11-24-87, 3).
The trial court prohibited any inquiry of Lauren Ardell
except as to what Jamie Person told her concerning the
activities of the Petitioner. The trial court ruled that any
evidence as to what which Lauren Ardell may have told
Jamie concerning Lauren’s alleged sexual abuse by her
father was irrelevant in the Petitioner’s trial and that it
would be a violation of Connecticut General Statute § 54-
86e° to question the friend on the specifics of the alleged
sexual abuse by her father. (T. 11-24-87, 13).
The court denied post trial motions for a judgment of
acquittal and to set aside the verdict as to these two counts.
The Petitioner was sentenced to concurrent terms of ten
years on each count. New counsel appeared for the
Petitioner and a timely appeal was filed.
State Appellate Proceedings
On September 26, 1989, the Connecticut Appellate
Court affirmed the conviction. State v. Person, 20 Conn.
App. 115 (1989)(hereinafter "Person I")(App. D). The
Petitioner presented seven (7) claims of error, only the
following of which is relevant to this petition:
(1) Defendant was denied his right to present a defense
and his right to confrontation when the trial court refused
to allow the defendant to present evidence that the child
complainant’s best friend had accused her own father of
conduct very similar to the conduct allegedly committed by
the defendant.
The Appellate Court found no error in the trial court’s
* Connecticut General Statute § 54-86e provides:
The name and address of the victim of a sexual assault under
section 53a-70, 53a-70a, 53a-71, 53a-72b or 53a-73a, or Injury
or Risk of Injury, or Impairing of Morals under section 53-21,
or of an attempt thereof shall be confidential and shall be
disclosed only upon order of the superior court, except that such
information shall be available to the accused.
5
ruling prohibiting the Petitioner from presenting the
evidence that Lauren Ardell, Petitioner's younger
daughter’s best friend, had made striking similar
accusations of sexual abuse against her father. The
Appellate Court relied in part on the trial court’s ruling that
evidence was not relevant. The Appellate Court refused to
analyze Petitioner’s claim that the exclusion of this
evidence constituted an error of constitutional proportion.
Person I, at 127 n.5. The Appellate Court held that
Petitioner had not adequately briefed this as a claim of
constitutional error as opposed to an error of state
evidentiary law. /d.
After the Connecticut Appellate Court affirmed
petitioner’s conviction, the Connecticut Supreme Court
refused to grant Certification on the question of whether
the trial court’s exclusion of the testimony from Lauren
Ardell constituted a violation of petitioner’s constitutional
right to present a defense.‘
Federal Habeas Corpus Proceedings
On April 26, 1991, the Petitioner filed a Petition for
Habeas Corpus relief under 28 U.S.C. § 2254 in the
United States District Court for the District of Connecticut.
Petitioner raised the following claims, among others, in his
petition:
Petitioner was deprived of his rights to compulsory
* The Connecticut Supreme Court granted Certification on the
issue of whether the prosecutor’s repeated and improper questioning
of a defense witness with the purpose of eliciting a Fifth Amendment
privilege constituted a violation of the Due Process clause.
6
process and to present a defense when he was not
allowed to present evidence that the child complainant’s
best friend had made strikingly similar accusations of
sexual abuse against her own father.
On cross-motions for summary judgment, the District
Court granted respondent’s Cross-Motion for Summary
Judgment and denied Petitioner’s Motion for Summary
Judgment. Ruling on Crcss-Motion for Summary
Judgment, August 6, 1991 (hereinafter "Ruling")(Appendix
B).
As to Petitioner’s claim that the exclusion of Lauren
Ardell’s testimony violated his constitutional right to
compulsory process and to present a defense, the District
Court first ruled that Petitioner had adequately briefed the
claim to the Connecticut Appellate Court and that the claim
was therefore not procedurally barred from habeas review.
Ruling, at 14 n.4. The District Court then found that the
exclusion of the testimony of the best friend of Petitioner’s
younger daughter who had made strikingly similar sexual
abuse allegation about her own father just prior to the
allegation made by Petitioner’s younger daughter did not
violate Petitioner’s compulsory process rights under the
Sixth Amendment. The District Court stated that "the trial
court’s exclusion [of Lauren Ardell’s testimony] on the
grounds of irrelevance, immateriality, and arguable
privilege under Connecticut shield laws did not amount to
a constitutional violation of Petitioner’s right to present a
defense." Id. at 17.
Thereafter, the Petitioner appealed to the Court of
Appeals for the Second Circuit. The Second Circuit found
that even though the evidence was material, as an arguable
basis for impeaching the victim, the exclusion of this
7
evidence did not amount to a due process violation. Order,
Eric N. Person v. Larry R. Meachum, Docket Number 91-
2405 (February 18, 1992)(hereinafter "Order")(App. A).
The Court of Appeals held that "its admissibility involved
an assessment of numerous factors, including the burden of
subjecting the young girlfriend to further questioning
beyond the trial at which the girlfriend’s father had been
acquitted." Id. at 2. The Court of Appeals then cited its
own decision, Rosario v. Kuhlman, 839 F.2d 918, 925 (2d
Cir. 1988), as support for its conclusion that the exclusion
of this evidence did not meet the test of depriving the
petitioner of a fundamentally fair trial. Jd.
Original federal jurisdiction in the District Court for the
District of Connecticut was invoked under 28 U.S.C. §
2241 to bring a claim for habeas corpus relief under 28
U.S.C. § 2254. Appeal of the denial of habeas corpus
relief by the District Court for the District of Connecticut
was taken to the Court of Appeals for the Second Circuit
pursuant to 28 U.S.C. § 2253.
REASON FOR GRANTING THE WRIT
THE COURT OF APPEALS ERRED IN
HOLDING THAT THE EXCLUSION OF
MATERIAL EVIDENCE CONCERNING
DEFENDANT’S GUILT DID NOT AMOUNT
TO A VIOLATION OF HIS SIXTH
AMENDMENT RIGHTS UNDER THIS
COURT’S HOLDINGS IN CHAMBERS JY.
MISSISSIPPI AND WASHINGTON V. TEXAS.
Our adversarial system of justice relies predominantly,
if not completely, on the parties for the presentation and
exploration of relevant facts. United States v. Nobles, 422
U.S. 225, 230, 95 S. Ct. 2160, 45 L. Ed. 2d 14] (1975).
To that extent, "[t]he need to develop all relevant facts in
the adversary system is both fundamental and
comprehensive." United States vy. Nixon, 418 U.S. 683,
709, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974). “The
ends of justice would be defeated if judgments were to be
founded on a partial or speculative presentation of the
facts." Nixon, Supra, at 709. Within this framework, a
number of this Court’s decisions make clear that there are
few more basic rights afforded a criminal defendant than
the right to compulsory process; see, Chambers y.
Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 35 L. Ed.
2d 297 (1973), citing, Webb vy. Texas, 409 U.S. 95, 93 S.
Ct. 351, 34 L. Ed. 2d 330 (1972); Washington vy. Texas,
388 U.S. 14, 18 (1972): and to confront witnesses against
an accused. see, Pointer v. Texas, 380 U.S. 400, 406, 85
S. Ct. 1065, 13 L. Ed. 2d 923 (1965).° While the
Constitution affords certain other protections in the face of
criminal accusations, Gideon v. Wainwright, 372 U.S. 335,
83 S. Ct. 792, 9, L. Ed. 2d 799 (1963)(Sixth Amendment
guarantee of counsel); Miranda v. Arizona, 384 U.S. 4365,
86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)(establishing
procedures to protect Fifth Amendment privilege against
self-incrimination);
The right of an accused in a criminal trial to due
process is, in essence, the right to a fair opportunity
to defend against the state’s accusations, the rights
to confront and cross-examine witnesses and to call
witnesses in one’s own behalf have long been
recognized as essential to due process.
Chambers at 294. As Justice Harlan stated in his
concurrence in California v. Green, "[{iJf anything, the
confrontation guarantee may be thought, along with the
right to compulsory process, merely to constitutionalize the
right to a defense." Id., 399 U.S. 149, 177, 90 S. Ct.
1930, 26 L. Ed. 2d 489 (1970).
Although the decisions of this Court make clear that the
right of confrontation and the right of compulsory process
are not limitless, see, Kentucky v. Stincer, 482 U.S. 730,
107 S. Ct. 2658, 96 L. Ed. 2d 631 (1987)(Confrontation
Clause not violated when defendant excluded from
‘The Sixth Amendment’s Compulsory Process Clause and
Confrontation Clause are binding on the states through the
Fourteenth Amendment. Washington v. Texas, supra, 388 U.S. at
18; Pointer, supra 380 U.S. at 407.
10
competency hearing of child witness); Maryland vy. Craig,
__._:;U.S. __, 110 S. Ct. 3157, 111 L. Ed. 2d 666
(1990)(Scalia, J., dissenting)(Confrontation Clause not
violated when child complainant allowed to testify via
closed circuit television); Taylor v. Illinois, 484 U.S. 400,
108 S. Ct. 646, 98 L. Ed. 2d 798 (1988)(Compulsory
Process Clause not violated by Ordering preclusion of
defense witness’ testimony as sanction for defense counsel’s
discovery rule violation), the decisions of this Court have
defined certain essential components of the rights
guaranteed by both the compulsory process clause and the
confrontation clause. At a minimum, the compulsory
process guarantees a defendant the right to present
evidence, with the state’s assistance if needed, to rebut the
State’s accusations. A criminal defendant must be able to
call witnesses on his behalf and to allow the jury to weigh
the evidence in its entirety.
"The right to offer the testimony of witnesses and
to compel their attendance, if necessary, is in plain
terms the right to present a defense, the right to
present the defendant’s version of the facts as well
as the prosecution’s to the jury so it may decide
where the truth lies."
Washington v. Texas, 388 U.S. at 18. Conversely, the
right of Confrontation requires that a criminal defendant
have the opportunity for effective cross-examination of the
witnesses against him. Pointer, supra, 380 U.S. at 406.
While a criminal conviction. will not be constitutionally
infirm because a criminal defendant has not opted to cross-
examine a witness against him, the "absence of a proper
confrontation of witnesses at trial calls into question the
ultimate integrity of the fact-finding process." Ohio vy.
1]
Roberts, 488 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597
(1980). A criminal defendant must have the opportunity
"to show that a witness is biased, or that the testimony is
exaggerated or unbelievable ... [as] this type of evidence
can make the difference between conviction and acquittal."
Pennsylvania v. Ritchie, 480 U.S. 39, 51-52, 107 S. Ct.
989, 94 L. Ed. 2d 40 (1987).
In this case, the question for this Court is whether the
trial court’s exclusion of material evidence deprived the
Petitioner of his Sixth Amendment right to present a
defense and to confront the witnesses against him. The
trial court violated Petitioner’s right under the Compulsory
Process Clause of the Sixth Amendment to present
witnesses in his own defense, Chambers, supra, at 302;
and excluded from the jury’s consideration relevant and
credible evidence which would tend to establish that the
child complainant gained her knowledge of sexual activity
from a source other than Petitioner. Lauren Ardell’s
testimony provided an acknowledged source for Jamie's
knowledge of sexual activity other than actual sexual abuse.
By restricting his ability to impeach the credibility of the
State’s primary witness by presenting evidence which
would seriously undermine the complainant’s accusations
by demonstrating an alternative source of knowledge of
sexual activity, see e.g., Davis v. Alaska, 415 U.S. 308,
319-20, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974), the trial
court deprived Petitioner of his right to confront the
accusations of the state’s witness. Petitioner claims that
Lauren Ardell’s testimony was so material to the
presentation of his defense thzt the trial court’s exclusion
of this evidence deprived him of a fundamentally fair trial,
in violation of his right to compulsory process, to present
a defense and to effectively confront the only witness who
12
could directly implicate Petitioner in the alleged crime. see
e.g., Rosario v. Kuhlman, 839 F.2d 918, 925 (2d Cir.
1988).
The Court of Appeals for the Second Circuit rejected
the holdings of the Connecticut Appellate Court and the
United States District Court for the District of Connecticut
that Lauren Ardell’s testimony was immaterial to
impeaching Jamie Person’s credibility. See Appendix A.
However, having found that this evidence was material to
Petitioner’s defense, the Court of Appeals then held that
the exclusion of this crucial evidence did not rise to a
constitutional violation. Order, supra, at 2. The Court of
Appeals cited its own decision Rosario, supra, 839 F.2d at
925, as support for the notion that the exclusion of
evidence material to Petitioner’s defense did not violate his
constitutional rights. The Court of Appeals also held that
“numerous factors," such as the burden of subjecting the
young girlfriend to further questioning beyond the trial at
which the girlfriend’s father had been acquitted, justified
the trial court’s exclusion of material evidence. While
material evidence may be excluded in certain limited
circumstances, See e.g., Rule 403 of the Federal Rules of
Evidence (allows trial court to exclude relevant evidence on
grounds of prejudice, confusion, or waste of time), the
instant case does not fall within these limited
circumstances. Moreover, a close exarnination of the
evidence excluded in this case reveals it would have created
a reasonable doubt. United States v. Augrs, 427 U.S. 97,
13
96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976).°
The prosecutor argued extensively in summation that
Jamie Person could not have gained her knowledge of
sexual activity except through personal experience.’ The
jury may well have found Petitioner guilty solely because
he failed to explain how Jamie developed an explicit
* In Augrs, this Court addressed the issue of whether a
prosecutor’s failure to disclose exculpatory evidence pursuant to a
general request for exculpatory evidence violated the defendant's due
process rights. /d., at 97. After determining that a prosecutor
indeed had a constitutional duty to turn over such evidence to a
defendant, this Court held that this duty extended only to material
evidence. Jd. at 112-13. As to the constitutional standard of
materiality, this Court stated:
The proper standard of materiality must reflect our overriding
concern with the justice of the finding of guilt. Such a finding
is permissible only if supported by evidence establishing guilt
beyond a reasonable doubt. /t necessarily follows that if the
omitted evidence creates a reasonable doubt that did not
otherwise exist, constitutional error has been commitied. This
means that the omission must be evaluated in the context of the
entire record. If there is no reasonable doubt about guilt
whether or not the additional evidence is considered, there is no
justification for a new trial. On the other hand, if the verdict is
already of questionable validity, additional evidence of relatively
minor importance might be sufficient to create a reasonable
doubt.
Id., supra, at 112-13, (emphasis added; footnotes omitted).
Petitioner argues that Lauren Ardell’s testimony creates a reasonable
doubt that did not otherwise exist.
” Appendix G.
14
knowledge of sexual activity. see Commonwealth v. Ruffen,
399 Mass. 811, 814, 507 N.E.2d 684 (Mass. 1987). Had
the jury heard this evidence it could have found that Jamie
got not only the idea of making up a sexual abuse story
from Lauren, but also the knowledge to support the
allegation.’ The jury could also have found that the two
girls were engaging in a childhood fantasy together and had
fabricated the accusations. Because of the trial court's
ruling that the evidence was irrelevant, however, the
defendant was never able to examine Lauren on these
subjects. That the two girls had fabricated the allegations,
that Jamie gained knowledge of sexual activity from
Lauren, and that Jamie got the idea of making these
accusations from Lauren were essential to the defense at
trial, because that information could have created a
reasonable doubt in the minds of the jurors as to whether
Jamie was actually abused. As trial counsel stated, it was
"vital to the defense."
The exclusion of Lauren Ardell’s testimony takes on
added importance considering the age of the complainants
in their respective cases. Jamie Person gave explicit
testimony concerning various sexual acts. As the state
argued in summation, the only source of Jamie’s
knowledge could have been at the hands of the Petitioner.
However, as Justice Scalia noted in his dissent in Maryland
* Petitioner also argues that whatever merit rests with the Court
of Appeals’ reasoning that Lauren-Ardell’s testimony could be
excluded because of the "burden of subjecting her to further
questioning" is ameliorated by the use of procedures for examining
child witnesses which this Court found to be constitutional in the
face of a Confrontation Clause challenge. see, Maryland v. Craig,
supra, 111 S. Ct. 3171.
15
v. Craig, supra, 110 S.Ct. at 3175, “some studies show
that children are substantially more vulnerable to suggestion
than adults, and often more unable to separate recollected
fantasy (or suggestion) from reality." Jd. (citing
authorities). In Maryland, Justice Scalia argued that
problems of suggestiveness on the part of young children
demanded that a defendant be allowed to confront the child
complainant. Jd., supra, at 3176. Various state court have
also examined the problem of childhood fantasy in
allegations of sexual abuse. See, Ruffen, supra, 399 Mass.
at 814-15; State v. Oliver, 158 Ariz. 22, 760 P.2d 1071
(1988); Washington v. Carver, 37 Wash. App. 122, 678
P.2d 842 (1984); State v. Padilla, 110 Wis.2d 414, 329
N.W.2d 263 (1982); State v. Howard, 121 N.H. 53, 426
A.2d 457 (1981). The Supreme Judicial Court of
Massachusetts reversed a defendant’s conviction for
sexually assaulting a young girl precisely because the trial
court prevented him from presenting credible evidence
demonstrating an alternative source of the young
complainant’s knowledge of sex. Ruffen, supra, 399 Mass.
at 814-15. Petitioner in this case could not rebut the
damaging testimony of an eight year old girl who described
sexual acts explicitly.
Petitioner respectfully argues that the Court of Appeals’
decision in this case is in contravention of this Court’s
decisions interpreting the scope of Petitioner’s
constitutional right to confront the witness against him,
Pointer, supra, at 406, and to present evidence supporting
his defense, Chambers, supra, at 302.
16
CONCLUSION
For all the foregoing reasons, the Petitioner respectfully
urges this Court to grant certiorari and review each of the
questions herein presented.
THE PETITIONER
ee eh
/
whe A Ln <t—
HUBERT J/SANTOS
A Member? of the Bar of
the Supreme Court of the
United States
In The
Supreme Court Of The United States
October Term, 1991
en
ERIC N. PERSON,
Petitioner.
V.
LARRY MEACHUM,
Respondent.
APPENDIX
*
TABLE OF CONTENTS TO APPENDIX
Opinion of the Court
of Appeals for the
Second Circuit ........
Opinion of the District
Court for the District
of Connecticut ........
Opinion of the
Connecticut Supreme ... .
Opinion of the Connecticut
Appellate Court .......
Arrest Warrant Affidavit
for John Ardell... ...
Arrest Warrant Affidavit
for Eric Person........
Excerpt of Transcript
of Prosecutor’s Summation
1A
APPENDIX A
Opinion of the Court of Appeals
for the Second Circuit
2A
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
At a stated term of the United States Court of
Appeals for the Second Circuit, held at the United States
Courthouse in the City of New York, on the 18th day of
February, one thousand nine hundred and ninety-two.
Conn.
B90-cv-579
Cabranes
PRESENT: HONORABLE JON O. NEWMAN
HONORABLE AMALYA L. KEARSE,
Circuit Judges.
HONORABLE THURGOOD
MARSHALL,
Associate Justice Retired.”
ERIC N. PERSON
Petitioner - Appellant,
Vv.
LARRY R. MEACHUM, COMMISSIONER
OF THE STATE OF CONNECTICUT
DEPARTMENT OF CORRECTION,
Respondent-Appellee.
" Of the United States Supreme Court, sitting by
designation.
3A
ORDER
Appeal from the United States District Court for the
District of Connecticut (Jose A. Cabranes, Judge).
This cause came on to be heard on the transcript of
record from the United States District Court for the
District of Connecticut and was argued by counsel.
ON CONSIDERATION WHEREOF, IT IS
HEREBY ORDERED, ADJUDGED, AND DECREED
that the judgment of the District Court be and it hereby
is AFFIRMED.
Eric N. Person appeals from the August 7, 1991,
judgment dismissing, on motion for summary judgment,
his petition for a writ of habeas corpus to challenge his
state court conviction for sexually assaulting his
daughter, in violation of Conn. Gen. Stat. § 53a-71-
(a)(1) (1991), and risking injury to her as a minor, in
violation of Conn. Gen. Stat. 53-21 (1991). The
conviction was affirmed by the Connecticut Supreme
Court. State v. Person, 215 Conn. 653, 577 A.2d 1036,
(1190), cert. denied, 111 S.Ct. 756 (1991).
1. The prosecutor’s questioning of the witness
Mercier, precipitating the witness’s invocation of the
Fifth Amendment before the jury, did not constitute the
sort of misconduct that might constitute a due process
violation as contemplated by Perez v. Jones, 935 F.2d
480, 483 (2d Cir. 1991). There occurred neither the
flagrant attempt to build a case out of inferences from
invocation of the privilege nor the addition of inferences
to add critical weight to the prosecution’s case. See
Namet v. United States, 373 U.S. 179 (1963). As the
District Court Judge noted, there was no reasonable basis
from which the jury could draw the inference that the
defendant sexually abused his daughter from the fact that
Mercier refused to answer questions about smoking
marijuana in the presence of the defendant and his
daughter.
2. The claim that evidence offered by the
defendant was improperly excluded does not establish a
due process violation, even if we assume that the claim
has not been forfeited for failure to present it to the
Connecticut Appellate Court in the defendant’s main
brief. The defendant sought to prove through the
testimony of the victim’s girlfriend that the girlfriend’s
account of the alleged sexual assault upon her by the
girlfriend’s father was the likely source of the victim’s
knowledge of certain details of sexual activity. The
victim testified that her knowledge stemmed from the
defendant’s assault upon her. Though we do not doubt
that this evidence was material as an arguable basis for
impeaching the victim, its admissibility involved an
assessment of numerous factors, including the burden of
subjecting the young girlfriend to further questioning
beyond the trial at which the girlfriend’s father had been
acquitted. The exclusion of this evidence did not meet
SA
OO
the test of depriving the defendant of a fundamentally
fair trial. See Rosario v. Kuhlman, 839 F.2d 918, 925
(2d Cir. 1988).
3. The prosecutor’s questioning of various
witnesses (not including the defendant) about their
marijuana use and asking a character witness for the
defendant whether his opinion would change if he were
aware of defendant’s use of marijuana did not constitute
the sort of prosecutorial misconduct cognizable on habeas
corpus, in view of the emphatic curative instruction by
the trial judge that whether the defendant had ever
smoked marijuana was "totally irrelevant" and should be
disregarded. See Blissett v. Lefevre, 924 F.2d 434, 440
(2d Cir.), cert. denied, 112 §.Ct. 158 (1991).
Circuit Judges.
Associate Justice.
N.B. THIS SUMMARY ORDER WILL NOT BE
PUBLISHED IN THE FEDERAL REPORTER AND
SHOULD NOT BE CITED OR OTHERWISE RELIED
UPON IN UNRELATED CASES BEFORE THIS OR
ANY OTHER COURT.
6A
APPENDIX B
Opinion of the District Court
for the District of Connecticut
7A
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ERIC N. PERSON
v. : Civil No. B-90-579 (JAC)
LARRY R. MEACHUM,
Commissioner,
Department of
Correction
Appearances:
HUBERT J. SANTOS
(Santos, Peck & Smith)
Hartford, CT
Counsel for Petitioner
HARRY WELLER
(Assistant State’s Attorney,
Appellate Unit)
Office of the Chief State’s
Attorney,
Wallingford, CT
Counsel for Respondent
RA
RULING ON CROSS-MOTIONS FOR SUMMARY
JUDGMENT
JOSE A. CABRANES, District Judge:
Petitioner Eric N. Person, who is currently
serving two concurrent ten-year terms of imprisonment at
the Connecticut Correctional Institution at Somers, has
filed a petition for habeas corpus pursuant to 28 U.S.C.
§ 2254, arguing that he is currently in state custody in
violation of his constitutional right to due process. On
January 26, 1988, a judgment of conviction was entered
against him in Connecticut Superior Court, Judicial
District of Danbury, after a jury found him guilty of
sexually assaulting his younger daughter, in violation of
Conn. Gen. Stat. § 53a-71(a)(1), and of risking injury to
a minor, in violation of Conn. Gen. Stat. § 53-21. The
9A
jury also acquitted petitioner of two counts - of sexual
assault and of risk of injury - with respect to this older
daughter.
Both parties have moved for summary judgment.
At a hearing and oral argument on June 17, 1991, the
parties agreed that there exist no issues of material fact
in dispute requiring an evidentiary hearing. After I
permitted both parties to submit post-hearing
supplemental memoranda, this matter was deemed
submitted for decision. |
I. BACKGROUND
The State of Connecticut formally commenced
prosecution of petitioner when it filed an information
naming him on November 6, 1987. The information
charged petitioner with sexually assaulting both of his
10 A
daughters. With respect to his eight-year-old daughter,’
he was charged with one count of sexual assault in the
second degree and one count of risk of injury to a minor;
with respect to his sixteen-year-old daughter, he was
charged with one count of sexual assault in the fourth
degree and one count of risk of injury to a minor.
Petitioner was tried before a jury of six between
November 12, 1987 and December 9, 1987, and the
Honorable Patricia A. Geen presided over eleven days of
testimony. On December 15, 1987, the jury returned its
verdict of "guilty" on the two counts relating to the
younger daughter and "not guilty" on the two counts
relating to the older daughter.
' The child was eight at the time of the trial, but the events to
which she testified occurred when she was between the ages of five
and seven.
11A
Judge Geen denied petitioner’s motion to set aside
the verdict and for acquittal, concluding that "the verdict
was more than substantiated by the evidence." Trial
Transcript (Appendix A to Petitioner’s Memorandum in
Support of Motion for Summary Judgment (filed Apr.
26, 1991) (Petitioner’s Memoresidians”)) ("tr.") (Jan. 26,
1988) at 5. Judge Geen sentenced petitioner to the
custody of the respondent for a period of ten years of
each of the two counts, to be served concurrently. Id. at
30.
Petitioner appealed from his conviction to the
Appellate Court of Connecticut. He raised seven claims
of error on appeal:
(FIRST) That the Court erred in permitting
the state prosecutor’s repeated
elicitation of the Fifth Amendment
124
(SECOND)
(THIRD)
privilege from a key defense
witness in the presence of the jury;
and the prosecutor was guilty of
misconduct when she not only
knew that the witness would invoke
the privilege but she made
reference to the invocation of the
privilege in recross-examination
and during closing arguments;
That the court erred in prohibiting
defendant from presenting expert
witnesses to testify that he did not
fit the profile of a pedophile or of a
sexual deviate;
That the court erred by refusing
defendant’s request to present
13A
(FOURTH)
(FIFTH)
evidence that his younger
daughter’s best friend had accused
her own father of conduct similar
to that of which petitioner was
accused;
That the court erred in admitting
into evidence an audiotaped
interview between a police
detective and the victim and in
permitting the jury to take the tape
into the jury room during the
deliberations; |
That the court erred in permitting
two police detectives to give
opinions concerning the victim’s
credibility and concerning
14 A
“common pattern" evidence in child
abuse cases;
(SIXTH) That the court erred in twice
refusing to grant a mistrial
following the prosecutor’s
intentional and improper
questioning concerning the use of
marijuana at petitioner’s apartment;
and
(SEVENTH) That the court erred in admitting
hearsay testimony that the
defendant’s sister had told his older
daughter not to testify and then in
advising the defendant’s sister,
while in the presence of the jury, of
ISA
her privilege against self-
incrimination.
See State v. Person, 20 Conn. App. 115, 118-33, 564
A.2d 626, 629-36 (1990). The Appellate Court affirmed
the conviction. A motion for reargument en banc was
denied, and the petitioner filed a petition of certification
to the Connecticut Supreme Court. The Connecticut
Supreme Court granted petitioner’s motion for
certification, limited to the following issues:
(1) May the state, in a criminal prosecution,
require a defense witness to invoke the privilege
against self-incrimination in open court, and may
it use such invocation an subsequent waiver as a
basis for impeaching the witness and for adverse
comment it its summation?
(2) If the trial court’s ruling to permit such
conduct was erroneous, was the Appellate Court
correct in concluding that the error was harmless?
State v. Person, 213 Conn. 811, 568 A.2d 796 (1990).
16A
The Connecticut Supreme Court affirmed
petitioner’s conviction on July 17, 1990. State v.
Person, 215 Conn. 653, 577 A.2d 1036 (1990).
Petitioner’s petition for a writ of certiorari to the United
States Supreme Court was denied on January 14, 1991.
Person v, Connecticut, 111 S.Ct. 756 (1991).
On November 15, 1990, petitioner filed his
petition for habeas corpus. Although the original petition
raised the seven claims of error originally raised before
the Appellate Court, petitioner has chosen to pursue only
three of the original seven claims. These are: (1) That
petitioner was deprived of his rights under the Fourteenth
Amendment from Dean Mercier ("Mercier"), a key
defense witness; (2) that petitioner was deprived of his
rights to compulsory process and to present a defense
when he was not allowed to examine his younger
17A
daughter’s best friend on concerning similar accusations
of sexual abuse about her own father; and, finally, (3)
that petitioner was denied his right to a fair trial by the
prosecutor’s repeated questioning of various witnesses
concerning the use of marijuana at petitioner’s apartment.
II. DISCUSSION
Erroneous evidentiary rulings do not automatically
rise to the level of constitutional error. The court’s duty
on a petition for habeas corpus is to determine whether
the error was sufficiently material so as to deprive the
petitioner of fundamental fairness. Rosario v. Kuhlman,
839 F.2d 918, 924 (2d Cir. 1988). A writ of habeas
corpus may issue only where the petitioner can show that
the error deprived him of a fundamentally fair trial. See
Taylor v. Curry, 708 F.2d 886, 891 (2d Cir.), cert.
18A
denied, 464 U.S. 1000 (1983); see also Rosario, 839
F.2d at 925.
A. Invocation of the Fifth Amendment Privilege
At trial, petitioner called several witnesses who
spent time at his apartment to testify that they never
observed any unusual or improper activity between him
and his daughter. Mercier, who was petitioner’s best
friend, testified that he was often in petitioner’s
apartment when his daughter was visiting and that he
never observed any unusual behavior between the
petitioner and his daughter and that he believed that they
had a good relationship. State v. Person, 215 Conn. at
657, 577 A.2d at 1038. On cross-examination, the
following colloquy took place:
Q: Well, how sharp would you say your
perception of events taking place in the apartment
was at the -- between the dates in question?
19A
A: Very sharp.
Q: Well, isn’t true, sir, that with regard to your
powers of perception while you were at the
defendant’s apartment during the dates in
question, that you were frequently smoking
marijuana --
Tr. (Dec. 3, 1987) at 76-77.
The petitioner objected to this question, and Judge
Geen excused the jury. After the court ruled that the
prosecutor’s question was proper because smoking
marijuana “has a bearing upon the ability of a person to
remember and relate," id. at 80, Mercier requested the
opportunity to consult with his attorney. After he was
recalled for cross-examination and the prosecutor once
again asked him about his marijuana use, Mercier
invoked his privilege against self-incrimination. Id. at
111. The prosecutor asked ten questions relating to the
20A
use Of marijuana, and to each question, Mercier invoked
his Fifth Amendment privilege.
On the following day, petitioner recalled Mercier
to the stand, and he waived his Fifth Amendment
privilege. Tr. (Dec. 4, 1987) at 5. During recross-
examination, the prosecutor inquired of Mercier whether
he changed his answer because he learned that he could
not be prosecuted for his marijuana use. Id. at 9-10.
Mercier responded that his prior invocation of his
privilege resulted from his confusion during cross-
examination. The prosecutor continued by asking a
series Of questions designed to demonstrate an
inconsistency between Mercier’s prior invocation of his
Fifth Amendment privilege and his present denial of
marijuana use at the petitioner’s apartment.
21A
The Connecticut Appellate Court concluded, and
respondent has conceded, that "it was improper for the
trial court to permit recross-examination for the purpose
of establishing inconsistency between the implications of
Mercier’s assertion of the privilege against self-
incrimination and his subsequent testimony that he had
not used marihuana in the defendant’s apartment."
Person, 20 Conn. App. at 123, 564 A.2d at 631.
However, the Appellate Court also concluded that the
error was harmless. Id.; see also Person, 215 Conn. at
660, 577 A.2d at 1040 (Connecticut Supreme Court
concluding that petitioner has not met burden of
demonstrating that erroneous action was harmful). "[T]he
jury could reasonably have believed the testimony of
both Mercier and the victim and still have found the
defendant guilty." Id. at 664, 577 A.2d at 1041.
22 A
There are essentially two questions before me:
First, was the error committed by the prosecutor purely
“evidentiary” or could it implicate petitioner’s
constitutional right to due process of law for which
habeas corpus relief is appropriate? Second, if the error
could be a constitutional violation, were petitioner’s due
process rights in fact violated?
l. Has Petitioner Alleged a Constitutional
Violation?
In Namet v. United States, 373 U.S. 179 (1963),
the Supreme Court considered the question of whether
the trial court committed reversible error in permitting
the Government to question witnesses about whether they
engaged in criminal activity with the defendant after it
was known that they were going to claim their privilege
not to incriminate themselves. The Court held that
234
reversible error can occur when either "the Government
makes a conscious and flagrant attempt to build its case
out of inferences arising from use of the testimonial
privilege," id. at 186, or when, “in the circumstances of
a given case, inferences from a witness’ refusal to
answer added critical weight to the prosecution’s case in
a form not subject to cross-examination, and this unfairly
prejudiced the defendant," id. at 187; see also United
States v. Casamento, 887 F.2d 1141, 1186 (2d Cir.
1989), cert. denied, 110 S.Ct. 1138 (1990); Rado v.
Connecticut, 607 F.2d 572, 581 (2d Cir. 1979), cert.
denied, 447 U.S. 920 (1980); United States v. Maloney,
262 U.S. 535, 537 (2d Cir. 1959).?
*Namet was an appeal from a conviction in federal court for
violation of federal wagering tax laws. The standard was whether of
not the prosecution committed reversible error. Under the facts or
Namet, the Court held that no reversible error was committed, and it
affirmed the conviction. In this case, the question presented is
24A
Respondent argues that the Court in Namet "ruled
unequivocally that a criminal defendant on direct appeal
presents no constitutional claim when a witness, other
than the defendant, is forced to plead the fifth
amendment before the jury." See Respondent’s Brief in
Opposition to Motion for Summary Judgment and in
. Support of his Motion for Summary Judgment (filed May
22, 1991) ("respondent’s Brief") at 10-11. Although the
Court in Namet determined that "[n]Jo constitutional
issues of any kind [were] presented," Namet, 373 U.S. at
185, it is not clear whether the Court concluded that such
a claim could never raise constitutional issues or whether
it was simply not presented as a constitutional claim in
that particular case. See Petitioner’s Memorandum at 4.
whether Namet error can ever amount to constitutional error.
25A
In Casamento, our Court of Appeals stated that
"[t]he due process rights of a defendant may be violated"
when one or both prongs of the Namet rule are satisfied.
Casamento, 887 F.2d at 1186. In other words, if the
prosecutor consciously and flagrantly attempts to build
the Government’s case out of inferences arising from the
invocation of the privilege or if inference from a witness’
refusal to answer added "critical weight to the
prosecution’s case," Namet, 373 U.S. at 186-87, the
defendant’s due process rights would be violated.
The Connecticut Supreme Court concluded that
the error in this case could only have been evidentiary
error, because it interpreted Namet to mean that it was
never constitutional error to cause a defense witness to
invoke his Fifth Amendment privilege against self-
incrimination in the presence of a jury. Person, 215
26A
Conn. at 659, 577 A.2d at 1039. Furthermore, it held
that attempting to impeach a witness through use of that
witness’ prior invocation of his Fifth Amendment does
not rise to a constitutional level even if harm results
because the harm involves another’s exercise of a
enristitational privilege rather than a constitutional
privilege of the defendant." Id. at 660, 577 A.2d at
1039. .
I cannot concur with this holding of the
Connecticut Supreme Court. Whether or not a Namet
init amounts to a violation of due process depends
on the circumstances of the case. It is a misreading of
Namet to conclude that a prosecutor’s repeated elicitation
of the Fifth Amendment privilege from a defense witness
in the presence of the jury could never deprive a
defendant of a fundamentally fair trial. As a purely
27A
jurisdictional matter, I shall entertain petitioner’s
application, for he has indeed alleged a violation of his
rights under the Due Process Clause of the Fourteenth
Amendment. The next question is whether or not his
constitutional nghts were in fact violated.
2. Was Petitioner Deprived of Due Process?
As our Court of Appeals stated in Casamento,
petitioner’s due process rights may be violated (1) when
the prosecution commits misconduct by consciously or
flagrantly attempting to build its case out of the
inferences arising from the invocation of the testimonial
privilege; or (2) when inferences from a witness’ refusal
to answer added critical weight to the prosecution’s case.
Casamento, 887 F.2d at 1186 (quoting Namet, 373 U.S.
at 186-87).
28A
It is clear that the prosecutor’s intent in cross-
examining Mercier on his use of marijuana was to
impeach his testimony that he was able accurately to
perceive the petitioner’s behavior with his younger
daughter while he was with them in petitioner’s
apartment and that he could effectively recall his
perceptions on the witness stand. But “[w]hen a witness
claims his privilege, a natural, indeed an almost
inevitable, inference arises as to what would have been
his answer if he had not refused." United States v.
Maloney, 262 F.2d 535, 537 (2d Cir. 1959) (L.Hand,
J.). In Namet and in Casamento, the witness invoked
their Fifth Amendment privileges when questioned about
criminal activity in which they had allegedly engaged
with the defendant. In those cases, the defendants
argued that the invocation of the privilege "naturally"
29A
gave rise to the inference that the defendants engaged in
the criminal conduct.
In this case, the only inference that reasonably
could have been drawn is that defendant permitted and
possibly joined Mercier in the smoking the marijuana
while in the presence of his younger daughter. As the
Connecticut Supreme Court reasons, "[w]ithout any
logical nexus between the charges pending against the
defendant and the subject matter about which Mercier
was questioned, there was no reasonable basis from
which the jury could draw an inference of defendant’s
guilt." Person, 215 Conn. at 663, 577 A.2d at 1041. It
is simply unreasonable to believe that the jury might
have drawn the inference that the petitioner sexually
abused his daughter because it had already drawn the
inference that petitioner smoked marijuana in her
30A
presence. Had petitioner been on trial for smoking
marijuana in the presence of a minor, the prosecutor’s
conduct might have been sufficient to violate petitioner’s
due process rights. Under the circumstances of this case,
however, no due process violation occurred.
Mercier’s subsequent decision to waive his Fifth
Amendment privilege -- and to deny that he ever used
marijuana in the petitioner’s apartment while the
petitioner’s younger daughter was present -- and the
prosecutor’s inquiry concerning the apparent
inconsistency between his prior invocation of the
privilege and his subsequent testimony did not prejudice
the petitioner. At most, the prosecutor raised significant
doubts about Mercier’s credibility. But he was not the
only witness who testified as to the seemingly normal
relationship between father and daughter; even if
31A
Mercier’s credibility was unfairly placed into doubt, his
testimony was cumulative.
Even more importantly, Mercier’s refusal to
answer added little if anything to the weight of the
State’s evidence against the petitioner, which was built
almost entirely on the shocking testimony of petitioner’s
eight-year-old daughter. Based on the entire record, the
prosecutor’s conduct with respect to the questioning of
Mercier, although found to be “highly inappropriate" as
a matter of state law, Person, 215 Conn. at 661, 577
A.2d at 1040, simply did not amount to the deprivation
of his rights to a fundamentally fair trial.°
> Although petitioner and respondent have argued vigorously
over which side would bear the burden of proving harmlessness
beyond a reasonable doubt compare Petitioner’s Supplemental
memorandum (filed June 21, 1991) with Respondent’s Supplemental
Memorandum (filed June 27, 1991), that question is only reached
after it is determined that a constitutional error has occurred.
Because I have found that there was no so-called Namet error, |
32 A
B. Compulsory Process
Petitioner’s second ground for habeas corpus
relief is that he was deprived of his right to compulsory
process guaranteed under the Sixth Amendment and
made applicable to the states through the Fourteen
Amendment. Specifically, petitioner claims that his right
to present a defense were violated by the trial judge’s
refusal to permit evidence that the best friend of
petitioner’s younger daughter had made “extremely
similar sexual abuse allegations about her own father."
Petitioner’s Memorandum at 11.4
need not engage in harmless-error analysis under Chapman v.
California, 386 U.S. 18 (1967).
“Respondent argues that petitioner’s second claim for relief is
procedurally barred because he did not adequately raise this
argument before the Appellate Court. The argument is without
merit. Even a cursory review of petitioner’s reply memorandum to
the Appellate Court reveals that he indicated the federal nature of his
claim, thereby preserving his right to raise it in a petition for habeas
| 33A
i eeeeiaeinerneereeeenill
Petitioner’s whole defense was based on the
theory that his younger daughter learned about explicit
sexuai activity from watching adult movies on television
and from hearing stories from her best friend. Tr. (Nov.
24, 1987) at 16. Judge Geen ruled that any testimony by
the friend about her own experiences of sexual abuse
would be irrelevant, immaterial, and in violation of
Connecticut General Statutes sections 54-86d and 54-
86e.° Id. at 19.
corpus. See Appellant’s Reply Brief (Appendix E to Petitioner’s
Memorandum) at 11.
‘Section 54-86d reads in pertinent part that
[a]ny person who has been the victim of sexual assault . . .
shall not be required to divulge his or her address or telephone
number during any trial or pretrial evidentiary hearing arising from
the sexual assault . . . provided that the judge presiding over such
legal proceeding shal) find: (1) Such information is not material to
the proceeding; (2) the identity of the victim has been satisfactorily
established; and (3) the current address of the victim is made
available to the defense.
Conn. Gen. Stat. § 54-86d (1985).
34A
Toeeenneneenimnmemmeel
A defendant’s right to call witnesses is not
unlimited and must comply with established rules of
evidence, see Chambers v. Mississippi, 410 U.S. 284,
302 (1973). Petitioner’s right to pursue his defense was
mited by laws designed to protect the identity of victims
of sexual assault. But more importantly, the testimony
of the child’s friend was irrelevant and immaterial. As
Section 54-86e reads as follows:
The name and address of the victim of a sexual assault...
shall be confidential and shall be disclosed only upon order of the
superior court, except that such information shall be available to the
accused.
Conn. Gen. Stat. § 54-86e (1985).
“Judge Geen concluded that the best friend was a member of the
class of persons protected by the Connecticut shield laws. She was
the complainant in a Separate criminal action, see Application for
Arrest Warrant (Appendix C to Petitioner’s Memorandum), and the
statutes themselves are broadly worded. "They are clear, they are
plan. She is not to be questioned, give her name and address and go
into a set of questions about any sexual assault of her. Otherwise,
the statute would be absolutely, totally useless." Tr. (Nov. 24,
1987) at 13.
35 A
the Connecticut Appellate Court stated when affirming
the petitioner’s conviction,
[t]he [petitioner’s] argument rests upon an
assumption that the victim’s credibility would
somehow automatically be placed in question by
evidence of the fact that she had a friend who
claimed, as did she herself, to have been the
victim of sexual abuse. There is no necessary
logical link, however, between the fact that the
victim of sexual abuse and a conclusion that the
victim might therefore be an unreliable witness
whose testimony regarding the [petitioner’s]
actions was not worthy of belief.
State v. Person, 20 Conn. App. at 127-28, 564 A.2d at
633-34.
In the affidavit in support of the arrest warrant for
the best friend’s father, the affiant wrote that he spoke
with her along and that she "did not have any concept of
ejaculation." Application for Arrest Warrant (Appendix
C to Petitioner’s Memorandum) at 3. In contrast, during
36 A
her direct examination, petitioner’s daughter testified as
follows:
Q. And, what would happen?
A. Well, I would feel the gooey stuff come in
my mouth, and I would try to spit it out, but it
just went down my throat.
Q. What was the gooey stuff like?
A. Well, it was sort of whitish -- whitish
clearish, and it would be gooey and sticky and
everything.
Tr. (Nov. 12, 1987) at 39.’ As Judge Geen
acknowledged before sentencing the petitioner and after
presiding over the entire trial:
There was an effort, a good effort, made
by the defense to try to show that the youngster
was relaying what she had seen on Playboy
Channel Television, pornographic in nature. That
defense didn’t work because on television you do
not have touch, feel. That little girl was able to
This was not an isolated reference to explicit sexual contact in
the testimony of petitioner’s daughter. Indeed, her testimony is
replete with similar references. See, e.g., Tr. (Nov. 12, 1987) at
40, 41-42, 43-44, 45, 53.
37A
describe a physical ejaculation, the feel of seman
[sic], its color, in the way nobody could do
except if it had happened to them.
. . . Her statement to the police in
February and her evidence in court in December
[sic] was consistent, but not rote. There were
differences in words, differences in expressions,
but consistency of factual recitation of the overall
history with her father. There’s no doubt in my
mind that it happened and that the defendant is
guilty.
Tr. (Jan. 26, 1988) at 25. The tral court’s exclusion of
the testimony of the daughter’s best friend on grounds of
irrelevance, immateriality, and arguable privilege under
Connecticut shield laws did not amount to an
unconstitutional violation of petitioner’s right to present a
defense.
c. Questioning Concerning Use of Marijuana
Petitioner argues as his third ground for habeas
corpus relief that the prosecutor’s deliberate, intentional
=
38 A
and improper questioning concerning the use of
marijuana at this apartment violated his due process
rights because it rendered the trial fundamentally unfair.
Petitioner’s Memorandum at 14.
The first time the issue of marijuana was raised
was when the prosecutor asked petitioner’s younger
daughter whether her father smoked anything other than
cigarettes. Tr. (Nov. 12, 1987) at 59. After dismissing
the jury, Judge Geen ruled that the question of
petitioner’s use of marijuana was irrelevant to the
allegations of sexual abuse, but she also denied
petitioner’s motion for a mistrial. Id. at 62. When the
jury returned, Judge Geen gave the following cautionary
instruction: "All right. Now, ladies and gentlemen,
we've had our little legal discussion. Therefore, I just
want to tell you that you are to ignore and strike from
39A
your mind any questions about smoking cigarettes or
anything else." Id. at 63.
Petitioner argues, however, that this asserted
prosecutorial “misconduct was not limited to one isolated
incident, but was repeated throughout the trial."
Petitioner’s Memorandum at 15. Not only did the
prosecutor engage in the colloquy with Mercier discussed
_previously, but she also asked Joseph Marzullo,
petitioner’s landlord, whether it would change his
generally favorable opinion of the relationship between
petitioner and his daughter if he “knew that the defendant
would regularly smoke marijuana in front of the
children." Tr. (Nov. 24, 1987) at 93. After excusing
the jury, Judge Geen once again sustained petitioner’s
objection while denying his motion for a mistrial. Upon
the jury’s return, Judge Geen gave another cautionary
instruction:
Now, ladies and gentlemen, with reference
to the question as to whether the witness had ever
heard of whether or not Mr. person had ever
smoked marijuana exclude that from your mind.
That’s totally irrelevant in this particular case,
and in these proceedings up to this point, there is
nothing involved with that. And, therefore, you
are to disregard that question.
Id. at 99.
Petitioner argues that the prosecution’s repeated
questioning about the use of marijuana was particularly
damaging because petitioner was being tried for risk of
injury to a minor in violation of Connecticut General
Statute section 53-21.° Petitioner argues that the jury
®Section 53-21 reads as follows:
Any person who wilfully or unlawfully causes or permits
any child under the age of sixteen years to be placed in such a
situation that its life or limb is endangered, or its health is likely to
414A
could have convicted him of risking the injury of his
younger daughter simply on the basis of the inference
drawn from the prosecutor’s improper questions about
marijuana smoking in petitioner’s apartment.
Although Judge Geen herself recognized this as a
possible danger, see Tr. (Dec. 3, 1987) at 79, the
Connecticut Supreme Court explicitly stated that "[s]uch
an inference of guilt is not reasonable in this case,
however, because the specifications of the charges
against the defendant were exclusively acts of a sexual
nature." Person, 215 Conn. at 663, 577 A.2d at 1041.
Furthermore, Judge Geen’s instructions cured any
be injured, or its morals likely to be impaired, or does any act likely
to impair the health or morals of any such child, shall be fined not
more than five hundred dollars or imprisoned not more than ten
years of both.
Conn. Gen. Stat. § 53-21 (1985).
42A
“ ‘confusion that the jury might have felt. Based on the full
record of the trial, there is no question that the jury
found petitioner wie of violating section 53-21 based
on the evidence of sexual abuse.
| The fact that the jury acquitted petitioner on the
two counts charging him with risk of injury and sexual
assault of the older daughter suggests that he petitioner
was not confronted with insurmountable prejudice on the
part of the jury. On the contrary, a review of the full
record of this case leads inescapably to the conclusion
that petitioner received a fundamentally fair trial. As the
Supreme Court has repeatedly state, "the Constitution
entitles a criminal defendant to a fair trial, not a perfect
one." Rose v. Clark, 480 U.S. 570, 579 (1986); United
States v. Hasting, 461 U.S. 499, 508-09 (1983).
43A
II. CONCLUSION
The foregoing reasons, petitioner’s Motion for
Summary Judgment (filed Apr. 26, 1991) is DENIED
and respondent’s Cross-Motion for Summary Judgment
(filed May 22, 1991) is GRANTED. Judgment shall
enter in favor or respondent.
In light of the court’s ruling, petitioner Renewed
Motion to Set Bail pending resolution of the petition for
habeas corpus is DENIED as moot.
It is so ordered.
Dated at New Haven, Connecticut, this 6th day of
August, 1991.
Jose A. Cabranes
United States District Court
APPENDIX C
Opinion of the Connecticut
Supreme Court
45A
215 Conn. 653 JULY, 1990 653
State v. Person
ing that the experimental conditions were not materi-
ally different and, therefore, it was not an abuse of dis-
cretion to admit the chart.
The judgment of the trial court is affirmed.
In this opinion the other justices concurred.
STATE OF CONNECTICUT v. ERIC N. PERSON
(13868)
Peters, C. J., SHEA, CALLAHAN, COVELLO and HuLty Js. _
Convicted of the crimes of sexual assault in the second degree and risk of
injury to a child, in connection with incidents involving his daughter,
the defendant appealed to the Appellate Court. He claimed, inter alia,
that the trial court should not have refused to allow a defense witness,
M, to invoke his fifth amendment privilege against self-incrimination
outside the presence of the jury when he was asked whether he had
ever smoked marihuana in the defendant's apartment, and that it should
not have permitted the state to use his invocation of that privilege before
the jury and a subsequent waiver of the privilege as a basis for impeach-
ing M's testimony. The Appellate Court affirmed the judgment of the
trial court, and the defendant, on the granting of certification, appealed
to this court. Held:
1. The defendant did not meet his burden of showing that it was more prob-
able than not that the result of his trial was affected by the trial court's
evidentiary rulings concerning M's invocation of the privilege, which
rulings the state conceded were improper; the substance of M's testi-
mony was remote from the central issue in the case, it was highly
unlikely that the jury was confused by the testimony to such an extent
that it subconsciously linked the defendant to M's assertion of the priv-
ilege and, since other witnesses presented testimony similar to M's,
M's testimony was cumulative.
2. The defendant could not prevail on his claim, raised for the first time
on appeal, that the state should not have been permitted, in summa-
tion, to attack M's credibility by referring to the invocation of the priv-
ilege; this court could not cay that in the context of the entire trial the
summation remarks, which were inappropriate, constituted a manifest
injustice to the defendant so as to impair the effectiveness or integrity
of his trial.
Argued May 3—decision released July 17, 1990
Information charging the defendant with the crimes
of sexual assault in the second degree, sexual assault
46A
654 JULY, 1990 215 Conn. 653
State v. Person
in the fourth degree and two counts of the crime of risk
of injury to a child, brought to the Superior Court in
the judicial district of Danbury, geographical area num-
ber three, and tried to the jury before Geen, J.; ver-
dict and judgment of guilty of sexual assault in the
second degree and of one count of risk of injury to a
child, from which the defendant appealed to the Appel-
late Court, Spallone, Daly, and Foti, Js., which affirmed
the trial court’s decision and the defendant, on the
granting of certification, appealed to this court.
Affirmed.
Hubert J. Santos, for the appellant (defendant).
Harry Weller, assistant state’s attorney, with whom
were Mary Elizabeth Baran, assistant state’s attorney,
and, on the brief, Walter D. Flanagan, state’s attor-
ney, and Ted Diament, law student intern, for the
appellee (state).
HULL, J. The defendant, Eric N. Person, was charged
with sexual assault in the second degree in violation
of General Statutes § 53a-71 (a) (1),! sexual assault in
the fourth degree in violation of General Statutes
§ 53a-73a (a) (1) (D)? and two counts of risk of injury
to a child in violation of General Statutes § 53-21.5 Fol-
1 General Statutes § 53a-71 provides in pertinent part: “‘(a) A person is
guilty of sexual assault in the second degree when such person engages
in sexual intercourse with another person and such other person is (1) under
sixteen years of age ... .”
2 General Statutes § 53a- 73a provides in pertinent part: “(a) A person
is guilty of sexual assault in the fourth degree when: (1) Such person inten-
tionally subjects another person to sexual contact whois . . . (D) less than
eighteen years old and the actor is such person’s guardian or otherwise
responsible for the general supervision of such person's welfare . . .
* General Statutes § 53-21 provides: “Any person who wilfully or unlaw-
fully causes or permits any child under the age of sixteen years to be placed
in such a situation that its life or limb is endangered, or its health is likely
to be injured, or its morals likely to be impaired, or does any act likely to
impair the health or morals of any such child, shall be fined not more than
five hundred dollars or imprisoned not more than ten years or both.”
47A
215 Conn. 653 JULY, 1990 655
State v. Person
lowing a jury trial, he was convicted of sexual assault
in the second degree and one count of risk of injury
to a child and acquitted of the other two charges. The
trial court thereupon sentenced the defendant to con-
current ten year terms of imprisonment on the two
counts. The Appellate Court affirmed the judgment of
conviction and determined, inter alia, that: (1) the
defendant was not unfairly prejudiced when the trial
court permitted a defense witness to invoke his fifth
amendment privilege against self-incrimination in the
presence of the jury; and (2) it was harmless error for
the trial court to permit recross-examination of the wit-
ness regarding his prior fifth amendment invocation
for the purposes of impeaching the witness’ credibil-
ity. State v. Person, 20 Conn. App. 115, 123, 564 A.2d
626 (1989). This court granted the defendant’s petition
for certification to appeal from the decision of the
Appellate Court, limited to the following issues:
“(1) May the state, in a criminal prosecution, require
a defense witness to invoke the privilege against self-
incrimination in open court, and may it use such invo-
cation and subsequent waiver as a basis for impeach-
ing the witness and for adverse comment in its
-summation?”’ and ‘‘(2) If the trial court’s ruling to per-
mit such conduct was erroneous, was the Appellate
Court correct in concluding that the error was harm-
less?”’ State v. Person, 213 Conn. 811, 568 A.2d 796
(1990). We conclude that the trial court should not have
permitted the conduct but that no prejudice resulted.
Accordingly, we affirm the decisicn of the Appellate
Court.
Although the facts are set forth in the decision of the
Appellate Court; State v. Person, supra, 20 Conn. App.
115; we discuss those facts pertinent to the issues. On
March 25, 1987, the defendant was arrested and charged
with sexual assault in the second degree and risk of
injury to a child in connection with sexual acts allegedly
48A
656 JULY, 1990 215 Conn. 653
State v. Person
perpetrated against the younger of his two daughters.
In addition, he was charged with sexual assault in the
fourth degree and risk of injury to a child in connec-
tion with alleged sexual conduct involving his older
daughter. At trial, the younger victim (hereinafter the
victim) testified that following her parents’ divorce she
would regularly visit the defendant on the weekends
at his apartment in Danbury. She stated that during
these weekend visits, the defendant would take her into
his bedroom and engage in various sexual acts with her.
On one occasion he forced the victim to engage in sex-
ual activity in his car. The victim described these acts
in graphic detail and used anatomically correct dolls
to demonstrate the sexual activity.
The victim’s physician, a pediatrician, provided con-
stancy of accusation testimony. Further, the physician
testified that in her opinion the physical condition of
the victim’s genital area was consistent with the vic-
tim’s allegations of sexual assault. Constancy of accu-
sation testimony was also provided by the victim’s
mother and two police officers who had investigated
the matter.
Various defense witnesses testified that while present
at the defendant’s apartment in Danbury, they had
observed no unusual behavior between the defendant
and the victim. Other witnesses stated that the defend-
ant appeared to be a good father who had a positive
relationship with the victim. The defendant testified
in his own defense and denied the victim’s accusations.
The defendant challenges the Appellate Court’s con-
clusions regarding three incidents of alleged prosecu-
torial misconduct. We consider first the challenged
prosecutorial conduct that occurred during the presen-
tation of the defendant’s case and second the challenged
conduct that occurred during the state’s closing
argument.
49A
215 Conn. 653 JULY, 1990 657
State v. Person
I
The defendant asserts that he was denied a fair trial
- when a defense witness was required to invoke his priv-
ilege against self-incrimination in the presence of the
jury. Immediately following the defendant’s testimony,
Dean Mercier was called to testify on behalf of the
defense. Mercier stated that he was a good friend of
the defendant and that he had frequently visited the
defendant’s apartment during the time the sexual
assaults allegedly had occurred. Mercier further testi-
fied that he had never observed any unusual behavior
between the defendant and the victim and that in his
opinion, the defendant and the victim had a good rela-
tionship. He did state, however, that he had only had
occasion to go into the defendant’s bedroom while the
defendant and the victim were napping. _
On cross-examination, the state inquired-as to Mer-
cier’s ability to perceive events while present at the
defendant’s apartment. In response Mercier stated that
his perception was “‘very sharp.’”’ The state then posed
the following question: “Well, isn’t it true, sir, that with
regard to your powers of perception while you were
at the defendant’s apartment during the dates in ques-
tion, that you were frequently smoking marihuana—?”’
The defendant objected to this question, and the court
excused the jury.
Outside the presence of the jury, the state argued
that the inquiry was relevant to the witness’ ability to
observe and perceive events. The defendant argued
that the attempied introduction of the witness’ mari-
huana use was inflammatory and prejudicial to the
defendant and thereupon moved for a mistrial. The
court overruled the objection and denied the motion
for a mistrial. The court stated that although the ques-
tion would have been improper if asked of the defend-
50A
*
eee od ——
658 JULY, 1990 215 Conn. 653
State v. Person
ant, it was permissible to in,uire about marihuana use
of a witness, because the question “‘has a bearing upon
the ability of a person to remember and relate.”
Mercier expressed concern that his answer to the
pending question might incriminate him and asked for
an opportunity to consult with his attorney. He left the
witness stand. When, shortly thereafter, he resumed
the witness stand, he stated that he had been unable
to contact his attorney, but that he would answer the
question anyway. The court, however, advised Mercier
to refrain from further testimony until after he had
obtained proper legal advice. The witness was then
excused.
Mercier was later recalled for cross-examination. Out-
side the presence of the jury, he informed the court that
he had been advised not to answer any questions relat-
ing to marihuana use. The defendant requested that
Mercier’s invocation of his fifth amendment privilege
occur without the jury present, reasoning that its
inflammatory and prejudicial nature outweighed its
probative value. The court denied the defendant's
request.
Following the jury’s return, the state proceeded to
engage in a litany of questions regarding Mercier’s use
of marihuana and alcohol: The defendant adamantly
objected throughout the cross-examination, but the
court overruled the majority of the objections. Mercier
asserted his fifth amendment privilege against self-
incrimination in response to ten questions.
The defendant also contends that he was denied his
right to a fair trial when the state sought to impeach
Mercier during recross-examination based upon his
prior invocation of the fifth amendment privilege. Sub-
sequent to Mercier’s initial testimony, the defendant
recalled Mercier who stated that he was waiving his
fifth amaadment privilege against self-incrimination.
51A
215 Conn. 653 JULY, 1990 659
State v. Person
Mercier testified that he had never smoked marihuana
at the defendant’s apartment while the victim was
there.
During recross-examination, the state inquired
whether Mercier’s decision to waive his fifth amend-
ment privilege was a result of newfound knowledge that
he could not be prosecuted for marihuana use revealed
at the trial. Mercier stated that such knowledge had
no bearing on his decision and that his prior invoca-
tion had primarily resulted from his confusion during
cross-examination. The state asked numerous questions
designed to imply that there was an inherent incon-
sistency between Mercier’s prior invocation of his fifth
amendment privilege and his present denial of mari-
huana use at the defendant’s apartment. The defend-
ant objected several times during the recross-examination,
but again the court permitted the state’s line of ques-
tioning.
At the outset, we note that although the defendant
has framed these claims in terms of a denial of his due
process right to a fair trial, the claims do not present
constitutional issues. “Clearly, the defendant ‘ “has put
a constitutional tag on . . . nonconstitutional eviden-
tiary ruling{s].”” State v. Douglas, 203 Conn. 445, 455,
525 A.2d 101 (1987) . . . .’ State v. Vilalastra, [207
Conn. 35, 46, 540 A.2d 42 (1988)]; State v. Vitele, 197
Conn. 396, 403, 497 A.2d 956 (1985); State v. Gooch,
186 Conn. 17, 18, 438 A.2d 867 (1982).”’ State v.
Walker, 215 Conn. 1, 5, A.2d (1990). First, with
regard to a claim of error in requiring a defense wit-
ness to invoke his fifth amendment privilege against
self-incrimination in the presence of the jury, the United
States Supreme Court has held that “{n]o constitutional
issues of any kind are presented” if such action is chal-
lenged, rather, it “is a claim of evidentiary trial error.”’
Namet v. United States, 373 U.S. 179, 185, 83 S. Ct.
1151, 10 L. Ed. 2d 278 (1963). Second, an attempt to
52A
660 JULY, 1990 215 Conn. 653
State v. Person
impeach a witness during cross-examination through
use of that witness’ prior invocation of his fifth amend-
ment privilege does not rise to a constitutional level
even if harm results, because the harm involves
another’s exercise of a constitutional privilege rather
than a constitutional privilege of the defendant. United
States v. Rubin, 559 F.2d 975, 984 (5th Cir. 1977),
vacated, 439 U.S. 810, 99 S. Ct. 67, 58 L. Ed. 2d 102
(1978), rev'd in part on other grounds, 591 F.2d 278
(5th Cir.), cert. denied, 444 U.S. 864, 100 S. Ct. 133,
62 L. Ed. 2d 87 (1979); People v. Godsey, 74 Ill. 2d 64,
73, 383 N.E.2d 988 (1978); see United States v. Natale,
526 F.2d 1160, 1171 (2d Cir. 1975), cert. denied, 425
U.S. 950, 96S. Ct. 1724, 48 L. Ed. 2d 193 (1976). Thus,
these two claims of alleged prosecutorial misconduct
are claims of evidentiary error reviewable under the
standard of harmless error applicable to nonconstitu-
tional errors. State v. Burak, 201 Conn. 517, 527, 518
A.2d 639 (1986); State v. Vitale, supra, 403.
The state concedes that requiring Mercier to invoke
his fifth amendment privilege against self-incrimination
in the presence of the jury and later attempting to
impeach the witness with his prior assertion of the priv-
ilege constituted error. “‘ ‘ “When a trial error in a
criminal case does not involve a constitutional viola-
tion the burden is on the defendant to demonstrate the
harmfulness of the court’s error. State v. Ruth, 181
Conn. 187, 196-97, 435 A.2d 3 (1980). The defendant
must show that it is more probable than not that the
erroneous action of the court affected the result. Id.;
State v. McClain, 171 Conn. 293, 300, 370 A.2d 928
(1976).” State v. Jones, 205 Conn. 723, 732, 535 A.2d
808 (1988).’ State v. Vilalastra, [supra, 47].”’ State v.
Sterra, 213 Conn. 422, 436-37, 568 A-Bd 448 (1990).
We conclude that the defendant has not met his burden.
Requiring a witness to assert the fifth amendment
privilege against self-incrimination in the presence of
53A
215 Conn. 653 JULY, 1990 ' 661
State v. Person
the jury presents two potential grounds for a finding
of harmful error. “‘ ‘First, some courts have indicated
that error may be based upon a concept of prosecuto-
rial misconduct, when the Government makes a con-
scious and flagrant attempt to build its case out of
inferences arising from use of the testimonial privi-
lege. . . . Asecond theory seems to rest upon the con-
clusion that, in the circumstances of a given case,
inferences from a witness’ refusal to answer added crit-
ical weight to the prosecution’s case in a form not sub-
ject to cross-examination, and thus unfairly prejudiced
the defendant.’ ’’ State v. Reddick, 197 Conn. 115, 126, °
496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106
S. Ct. 822, 88 L. Ed. 2d 795 (1986), quoting Namet v.
United States, supra, 186-87.
Although the state’s repeated questioning of Mercier
with the design to elicit an invocation of the fifth
amendment privilege in the presence of the jury was
highly inappropriate as it served no legitimate purpose,
such action did not constitute prosecutorial misconduct
within the meaning of Namet v. United States. The rec-
ord indicates that the state had prior knowledge that
Mercier would invoke the privilege. Knowledge alone,
however, does not substantiate the defendant’s claim
that the state consciously sought to build its entire case
through use of Mercier’s invocation by undermining the
credibility of all defense witnesses. The state had made
its objective clear when it requested that Mercier
answer its question regarding marihuana use.‘ It
sought to raise doubt as to Mercier’s ability to observe
and perceive events, an entirely permissible subject of
cross-examination. State v. Esposito, 192 Conn. 166,
‘ Regarding its questions on marihuana use, the state claimed: “It's highly
relevant. I claim that as highly relevant. He has testified as far as percep-
tions of what he observed, what he heard, what he saw, his observations.
And, my point here is that he was not in complete control of his faculties,
and I ask this question based on good faith, Your Honor. I do not ask it
frivolously.” :
54A
‘
662 JULY, 1990 215 Conn. 653
State v. Person
176, 471 A.2d 949 (1984), cert. denied sub nom. Pier-
son v. Connecticut, US. , 109 S. Ct. 1131, 103
L. Ed. 2d 193 (1989); State v. Ramirez, 16 Conn. App.
284, 291, 547 A.2d 559, cert. denied, 209 Conn. 828,
552 A.2d 434 (1988). Absent any further showing by
the defendant, therefore, we cannot conclude that the
state made “‘a conscious and flagrant attempt to build
its case out of inferences arising from [Mercier’s] use
of the testimonial psivilege.”” Namet v. United States,
supra, 186.
“Nor is this a case where a witness’ invocation of the
fifth amendment lent critical weight to the state’s case,
as where the prosecutor uses the assertion of the priv-
ilege by an accomplice or someone linked to the defend-
ant’s crimes in order to build a case against the
defendant.” State v. Reddick, supra, 127; see also
United States v. Maloney, 262 F.2d 535 (2d Cir. 1959)
(two of the witnesses who invoked their fifth amend-
ment privilege were critical witnesses in the sense that
their silence acted as the sole source of potential cor-
roboration for the state’s version of the crime). Mer-
cier was not a key witness in this regard or as a result
of any special relationship with the defendant. Com-
pare State v. Williams, 204 Conn. 523, 535, 529 A.2d
653 (1987) (record supported claim of serious prosecu-
torial misconduct where alleged improper conduct
involved cross-examination of the defendant’s principal
witness, his wife); People v. Godsey, supra, 75 (revers-
ible error where prosecutor referred to prior fifth
amendment invocation of the defendant’s wife).
The defendant contends that Mercier’s assertion of
his fifth amendment privilege added critical weight to
the state’s case, because through Mercier’s silence the
state intended to create the overall impression of a
depraved, licentious environment at the defendant’s
apartment that would lead the jury to infer that the
defendant was guilty of the crimes charged. Such an
55A
215 Conn. 653 JULY, 1990 663
State v. Person
inference of guilt is not reasonable in this case, how-
ever, because the specifications of the charges against
the defendant were exclusively acts of a sexual nature.
There were no allegations regarding a depraved or
immoral environment and drug use was not at issue.
Compare People v. Godsey, supra (likelihood that infer-
ence of witness’ guilt transferred to defendant, because
fifth amendment plea directed toward.the same crimi-
nal involvement as that for which defendant was on
trial). Without any logical nexus between the charges
pending against the defendant and the subject matter
about which Mercier was questioned, there was no rea-
sonable basis from which the jury could draw an infer-
ence of the defendant’s guilt. The defendant’s claim
of critical weight, therefore, fails in this respect as well.
Whether examination of a witness regarding his prior
fifth amendment invocation for the purpose of impeach-
ment requires reversal due to its prejudicial impact on
the outcome of the trial involves the consideration of
various factors, including: (1) the remoteness of the wit-
ness’ testimony from the crime with which the defend-
ant is charged; (2) the likelihood of juror confusion
whereby the defendant is subconsciously linked to the
witness’ assertion of the privilege; and (3) the cumu-
lative nature of the evidence, if any, provided by the
witness. See United States v. Rubin, supra, 986-88;
United States v. Natale, supra, 1171.
In this case, the substance of Mercier’s testimony was
remote from the central issue of the case, namely
whether the sexual assaults had in fact occurred in the
bedroom of the defendant’s apartment as alleged by
the victim. Whereas the victim provided direct evidence
regarding the incidents in question, Mercier’s testimony
only provided circumstantial exculpatory evidence in
that he stated that he had never observed any unusual
behavior between the defendant and the victim and that
in his opinion the defendant was a good father. Thus,
56A
664 JULY, 1990 215 Conn. 653
State v. Person
the jury could reasonably have believed the testimony
of both Mercier and the victim and still have found the
defendant guilty. Compare United States v. Tomaiolo,
249 F.2d 683 (2d Cir. 1957) (reversible error where
state sought to impeach witness with prior fifth amend-
ment assertion in response to questions regarding spe-
cific offense with which defendant was charged).
It is highly unlikely that the jury was confused by the
recross-examination regarding Mercier’s prior invoca-
tion of the fifth amendment to such an extent that it
subconsciously linked the defendant to Mercier’s asser-
tion of the fifth amendiment privilege. First, it was evi-
dent from the state’s questions, which focused on
perception, that the state was trying to impeach Mer-
cier’s credibility rather than trying to create an infer-
ence as to the defendant’s guilt. Second, Mercier
arguably dispelled any adverse inference that might
have been drawn by his prior silence by proceeding to
testify that he had not smoked marihuana at the defend-
ant’s apartment while the victim was present. Finally,
Mercier responded to the state’s questions regarding
inconsistency by explaining that his assertion of the
fifth amendment resulted from his lack of understand-
ing and therefore was not inconsistent with his present
testimony. Combined with the lack of any connection
between marihuana use and the charges against the
defendant, Mercier’s rehabilitation made it unlikely that
any reasonable juror would be confused and as a result
subconsciously link the defendant to Mercier’s invoca-
tion of the privilege.
Since other defense witnesses presented testimony
similar to Mercier’s regarding their observations and
impressions of the defendant and the victim, Mercier’s
testimony was cumulative. The defendant claims that
the impeachment served to discredit all of the witnesses
who presented the same or similar evidence thereby
unduly prejudicing the defendant. As previously stated,
57A
215 Conn. 653 JULY, 1990 665
State v. Person
this argument fails, because the state did not imply that
the prior invocation was relevant to any witness’ credi-
bility except that of Mercier.
On the basis of the foregoing, we cannot conclude
that the evidentiary rulings of which the defendant
complains had a prejudicial impact on the outcome of
the trial. State v. Vilalastra, supra; State v. Jones,
supra.
II
The defendant also challenges the state’s comments
during summation regarding the credibility of Mercier
as a defense witness. During final argument, the state
attacked Mercier’s credibility by contrasting Mercier’s
initial invocation of his fifth amendment privilege in
response to questions concerning marihuana use with
his subsequent waiver and denial of marihuana use.*
Unlike the aforementioned claims of prosecutorial
misconduct, this claim was not preserved at trial. The
failure to raise distinctly at trial the matter being
objected to ordinarily renders a claim unreviewable on
appeal. Practice Book § 4185.* The defendant, however,
* During its summation the state argued: “The defendant's best friend,
Dean Mereier, a man who was at the defendant's apartment, according
to him, ninety percent of the time on the weekends, left this courtroom
with no credibility whatsoever. First he claims his fifth amendment right
not to incriminate himself in response to a line of questioning about his
mental [state] and his level of sobriety or lack thereof when he was at that
apartment, then, he comes back in and wants to answer the questions in
a different way. If he was really being straightforward with us, members
of the jury, why didn't he answer the question the first time? Because he
is not being straightforward. He is playing games with this Court. He only
wants to help his best friesd. He has no credibility. What he saw or did
not see at that Danbury apartment is as elusive as a puff of smoke.”
* Practice Book § 4185 provides in pertinent part: ‘“‘The supreme eourt
shall not be bound to consider a claim unless it was distinctly raised at the
trial or arose subsequent to the trial. The supreme court may in the inter-
ests of justice notice plain error not brought to the attention of the trial
court.”
58A
CC
at ed . AERA
666 JULY, 1990 215 Conn. 653
State v. Person
urges this court to review his claim as plain error under
In evaluating the reasons set forth above, we note
that the cumulative effect of the contested rulings was
not so prejudicial as to have affected the outcome of
the trial. Even if we were to consider the defendant’s
unpreserved claim in assessing the overall effect, our
conclusion would be the same.
Accordingly, we affirm the judgment of the Appel-
late Court.
In this opinion the other justices concurred.
” Although the defendant refers to this claim in constitutional terms, at
oral argument he clearly stated that his claim of reviewability was premised
on the plain error doctrine. Therefore, we see no need to address its review-
ability under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and
State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973)
* “The prosecutor may not express his own opinion, either directly or
indirectly, as to the credibility of witnesses. United States v. Modica, (663
F.2d 1173, 1181 (2d Cir. 1981) cert. denied, 456 U.S. 989, 102 S. Ct. 2269,
73 L. Ed. 2d 1284 (1982)}; United States v. Drummond, 481 F.2d 62 (2d
Cir. 1973); State v. Floyd, 10 Conn. App. 361, 365, 523 A.2d 1323 {cert.
denied, 203 Conn. 809, 525 A 2d 523, cert. denied, 484 U.S. 859, 108 S
Ct. 172, 98 L. Ed. 2d 126) (1987); ABA Standards for Criminal Justice (Sec
ond), The Prosecution Function § 3-5.8 (b) (1985) _ . "* State v. Williams,
204 Conn. 523, 541, 529 A.2d 653 (1987)
59A.
Can)
APPENDIX D
Opinion of the Connecticut
Appellate Court
60A
20 Conn. App. 115 115
“ State v. Person
STATE OF CONNECTICUT v. ERIC N. PERSON
(6774)
SPALLONE, DALY and Forti, Js.
) Convicted of the crimes of sexual assault in the second degree and risk of
injury to a child in connection with incidents involving his daughter,
| the defendant appealed to this court claiming, inter alia, that the trial
court erred in permitting a key defense witness to assert his fifth amend-
ment privilege in the presence of the jury when he was asked: by the
prosecutor whether he had smoked marihuana in the defendant's apart-
ment. Held:
1. The defendant was not unfairly prejudiced by the challenged ruling, there
having been no prosecutorial misconduct and any inferences that could
have been drawn by the jury from the invocation of the privilege not
having added critical weight to the state's case; furthermore, although
the prosecutor should not have been permitted to argue that the invo-
cation of the privilege was inconsistent with the witness’ subsequent
testimony that he had not srroked marihuana, that error was harmless.
2. The trial court did not abuse its discretion in refusing to permit the
defendant to introduce testimony of a psychiatrist and a psychologist
to the effect that he did not fit the profile of a pedophile; the defend-
ant did not elicit testimony from either witness that the profile that
was to be the subject of testimony was accepted by the scientific com-
munity, nor did he establish that the witnesses had expertise in areas
related to intrafamily sexual abuse.
3. The trial court did not abuse its discretion in excluding, on relevancy
grounds, evidence that the victim's best friend had accused her own
father of sexual assault; that court reasonably could have concluded -
that the basis for the questions the defendant sought to ask was mere
speculation and that that inquiry was unjustified.
4. The defendant's challenge to the admission of an audiotaped interview
of the victim was not adequately briefed and was deemed abandoned.
5. The defendant's claims that the trial court erred in permitting one police
detective to comment on the victim's credibility and another to testify
regarding patterns of conduct of child molesters were not distinctly
raised at trial and were not entitled to plain error review.
6. The trial court did not abuse its discretion in denying t'.. Jcfendant's
motions for a mistrial following questions by the prosecution concern-
ing possible marihuana use in the defendant's apartment; even if the
questions were improper. the fact that they were asked was not enough
to deny the defendant a fair tral, particularly as the court gave an appro-
pnat: cautionary instruction.
7. The defendant's claim that the trial court erred in admitting testimony
that the defendant's sister had asked one of his daughters not to tes-
tify was not adequately briefed, and even if that ruling was erroneous,
cathe ‘ui
ae ws
61A
116 20 Conn. App. 115
State v. Person
any error was harmless; moreover, there was no ment to the defend-
ant’s claim that he was deprived of a fair trial by that court's warning
the sister, in the presence of the jury of her mght against self-
incnmination.
Argued June 22—decision released September 26, 1989
Information charging the defendant with the crimes
of sexual assault in the fourth degree and sexual assault
in the second degree and with two counts of the crime
of risk of injury to a child, brought to the Superior Court
in the judicial district of Danbury, geographical area
number three, and tried to the jury before Geen, J.; ver-
dict and judgment of guilty of sexual assault in the sec-
ond degree and of one count of risk of injury to a child,
from which the defendant appealed to this court. No
error.
F’. Mac Buckley, with whom, on the bref, was Hubert
J. Santos, for the appellant (defendant).
Harry Weller, deputy assistant state’s attorney, with
whom, on the brief, were Walter F'lannigan, state’s
attorney and Mary Elizabeth Barran, assistant state’s
attorney, for the appellee (state).
SPALLONE, J. The defendant appeals from the judg-
ment of conviction, rendered after a jury trial, of the
crimes of risk of injury to a child, General Statutes
§ 53-21,! and sexual assault in the second degree, Gen-
eral Statutes § 53a-71 (a) (1).2 The defendant claims
' [General Statutes] Sec. 53-21. INJURY OF RISK OF INJURY TO, OR IMPAIR-
ING MORALS OF, CHILDREN. Any person who wilfully or unlawfully causes
or permits any child under the age of sixteen years to be placed in such
a situation that its life or limb is endangered, or its health is likely to be
injured, or its morals likely to be impaired, or does any act likely to impair
the health or morals of any such child, shall be fined not more than five
hundred dollars or imprisoned not more than ten years or both."
? General Statutes § 53a-71 provides, in pertinent part: ‘‘(a) A person is
guilty of sexual assault in the second degree when such person engages
in sexual intercourse with another person and such other person is (1) under
sixteen years of age
62A
20 Conn. App. 115
117
State v. Person
witness to assert his fifth amendment privilege in the
presence of the jury, (2) in prohibiting the defendant
from calling certain expert witnesses, (3) in prohibit-
ing the defendant from questioning the victim's best
friend concerning the friend’s complaint of sexual
assault against her father, (4) in admitting as a state's
exhibit an audiotaped interview given by the victim,
(5) in permitting two police detectives to give opinions
concerning the victim’s credibility and ‘“‘common pat-
tern” evidence in child abuse cases, (6) in not declar-
ing a mistrial after the prosecutor questioned a defense
witness regarding his use of marihuana at the defend-
ant’s apartment, and (7) in permitting hearsay testi-
mony that the defendant's sister had asked one of the
victims not to testify and then warning the defendant's
sister, in the presence of the jury, of her right against
self-incrimination.
The defendant was arrested and charged with one
count of sexual assault in the fourth degree; General
Statutes § 53a-73a (a) (1) (D); and one count of risk of
injury to a child; General Statutes § 53-21; in connec-
tion with certain sexual acts allegedly perpetrated
against his older daughter. He was tried to a jury on
these charges, along with the charges of risk of injury
to a child and sexual assault in the second degree
related to offenses involving his younger daughter, age
eight at the time of the trial.* He was acquitted of the
crimes involving the older daughter, but was convicted
of the two counts involving his younger daughter (the
victim).
The defendant and the victim’s mother were divorced
in June, 1981. Subsequent to the divorce, the victim
visited the defendant on weekends at his apartment in
> The defendant's younger daughter was eight years old at the time of
the tral in 1987. The events complained of occurred sometime between
September 1, 1984 and January 31, 1987
63A
118 20 Conn. App. 115
State v. Person
Danbury. At trial, the victim stated that during these
visits the defendant would take her into his bedroom
and engage in a number of sexual acts with her. The
victim described these acts very specifically, in graphic
detail. Moreover, the victim used anatomically correct
dolls to describe the defendant’s sexually abusive
behavior.
The victim’s doctor provided constancy of accusation
testimony, stating that there was physical evidence of
the victim’s molestation. Qther constancy of accusa-
tion testimony was provided by the victim’s mother and
two police officers who had investigated the matter.
Following his conviction of the crimes of risk of injury
to a child and sexual assault in the second degree, the
defendant filed this appeal.
The defendant’s first claim of error is that the trial
court erred in permitting a key defense witness to
assert a fifth amendment privilege in the presence of
the jury. The following facts are relevant. Following
the defendant’s testimony, he called his friend, Dean
Mercier, to testify for the defense. Mercier testified that
he had been a frequent visitor at the defendant’s apart-
ment during the period of time the alleged assaults on
the victim occurred and that nothing unusual had trans-
pired while he was at the apartment. On cross-
examination, in response to the state’s question regard-
ing how well he was able to perceive events during his
visits to the apartment, Mercier stated that his percep-
tion was very sharp. The state then inquired whether
it was true that, during such visits, Mercier frequently
smoked marihuana. The defendant objected to this
question, and the court excused the jury. In argument
to the court, the state claimed that its inquiry into Mer-
cier’s use of marihuana was proper because a positive
answer would call into question his ability to perceive
events properly. The defendant argued that the
introduction of this issue into the case was inflamma-
64A
20 Conn. App. 115 . 119
State v. Person
tory and moved for a mistrial. The court denied the
defendant’s motion for a mistrial. The court indicated
that, although the question would have been improper
if asked of the defendant, it was permissible for the
state to question a defense witness regarding his abil-
ity to perceive. Mercier, apparently concerned that an
answer to the question might incriminate him, asked
for the opportunity to consult with an attorney. He left
the witness stand, and, upon returning later, agreed
to answer the state’s questions, despite the fact that
he had been unable in the interim to contact his attor-
ney. The trial court advised Mercier ayainst testifying
under the circumstances, however, and Mercier was
excused for the day.
When Mercier was recalled for cross-examination,
he informed the court that he would not answer any
questions about manhuana use. Defense counsel argued
that Mercier’s invocation of his fifth amendment priv-
ilege should occur outside the presence of the jury. The
trial court denied the defendant’s request, and the
defendant excepted. In the jury’s presence, the state
asked Mercier eight questions regarding his use of
marihuana.‘ In response to each question, Mercier
asserted his fifth amendment privilege against self-
incrimination.
The following day, the defendant recalled Mercier,
and at that time Mercier waived his fifth amendment
‘ The questions the prosecutor asked Mercier were as follows: (1) Whether
he frequently smoked marihuana while at the defendant's apartment; (2)
how often he smoked when the defendant's children were present; (3) how
much manhuana he smoked in general; (4) whether it was true he smoked
marnihuana in the presence of the defendant's children on a regular basis,
(5) with whom he smoked marhuana at the defendant's apartment, (6)
whether he “‘got high"’ when he smoked marihuana when the children were
there; (7) whether, when he “got high" when he smoked manhuana in the
children’s presence, his ability to perceive events happening around him
was affected; (8) whether he smoked manhuana with the defendant's oldest
son
65A
120 20 Conn. App. 115
State v. Person
privilege and testified that he had never smoked mari-
huana in the defendant’s apartment when the victim
was present. Upon recross-examination, the state asked
several questions designed to show that Mercier’s
present denial of marihuana use was inconsistent with
his previous assertion of his privilege against self-
incrimination. During final argument, the state argued
that Mercier was not crédible because he had first
asserted his privilege against self-incrimination and
later waived that privilege, denying any involvement
in any illegality.
We note at the outset that the defendant’s first claim
does not present any constitutional issues. The defend-
ant claims no violation of his own constitutional rights,
and he has no standing to assert the constitutional
rights of the witness. See State v. Williams, 206 Conn.
203, 208, 536 A.2d 583 (1988); State v. Jones, 205 Conn.
723, 739, 535 A.2d 808 (1988). In essence, therefore,
he presents a claim of evidentiary trial error.
The defendant claims that the circumstances in this
case present the type of situation that warrants rever-
sal of his conviction and a new trial under the theories
discussed in Namet v. United States, 373 U.S. 179, 83
S. Ct. 1151, 10 L. Ed. 2d 278 (1963). Our Supreme
Court discussed Namet v. United States, supra, in State
v. Reddick, 197 Conn. 115, 126, 496 A.2d 466 (1985),
cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed.
2d 795 (1986). “‘In Namet v. United States [supra], the
United States Supreme Court addressed the issue of
when a witness’ claim of his privilege not to answer
results in reversible error. The court outlined two
aspects of the issue, each suggesting a distinct ground
of error. ‘First, some courts have indicated that error
may be based upon a concept of prosecutorial miscon-
duct, when the Government makes a conscious and fla-
grant attempt to build its case out of inferences arising
from use of the testimonial pnvilege. . . . A second
66A
20 Conn. App. 115 121
State v. Person
theory seems to rest upon the conclusion that, in the
circumstances of a given case, inferences from a wit-
ness’ refusal to answer added critical weight to the
prosecution’s case in a form not subject to cross-
examination, and thus unfairly prejudiced the defend-
ant.’ "’ State v. Reddick, supra. The defendant bases
his claim of error on both theories, arguing that the
prosecutor deliberately utilized the fact that Mercier
had asserted his privilege against self-incrimination as
a trial tactic to create ‘‘the overall implication of
depravity and licentiousness in the defendant’s house-
hold”’ and to prejudice the defendant unfairly. We find
the defendant’s claim unpersuasive and reject his asser-
tion that a new trial is necessary.
First, this case does not present the scenario of pros-
‘ecutorial misconduct contemplated by Namet v. United
States, supra. This is not a situation in which the pros-
ecutor deliberately called to the stand a witness whom
she knew intended validly to invoke the privilege
against self-incrimination. See id., 185-86; United
States v. Maloney, 262 F.2d 535 (2d Cir. 1959). Rather,
in this case the witness was called by the defense, and
the witness’ assertion of the privilege occurred in the
context of cross-examination by the prosecutor. Nor
should the prosecution’s conduct be characterized as
‘deliberate attempts by the Government to make cap-
ital out of [the witness’] refusals to testify.”” Namet v.
United States, supra, 189. The prosecutor’s initial pur-
pose in questioning Mercier regarding his use of mari-
huana was to impeach his credibility by casting doubt
on his ability to perceive and recall the events that were
the subject of his testimony. The capacity of a witness
to observe, recollect and narrate an occurrence is a
proper subject of inquiry on cross-examination. State
v. Esposito, 192 Conn. 166, 176, 471 A.2d 949 (1984).
Consumption of alcohol or drugs obviously can impair
an individual’s ability to observe and recall accurately
67A
122 20 Conn. App. 115
State v. Person
and so iS a proper subject of inquiry on cross-
examination. State v. Heinz, 3 Conn. App. 80, 86, 485
‘A.2d 1321 (1984). At the outset, then, the prosecutor’s
questioning of Mercier was proper. There is no support
for the defendant’s claim of prosecutorial misconduct.
Moreover, this is not a case in which “‘ ‘inferences
from a witness’ refusal to answer added critical weight
to the prosecution's case in a form not subject to cross-
examination, and thus unfairly prejudiced the defend-
ant.’ "’ State v. Reddick, supra, 126, quoting Namet v.
United States, supra, 187. This is not a case, for
instance, in which the prosecutor used the assertion
of the privilege by an accomplice or someone linked to
the defendant’s crimes in order to build a case against
the defendant. See State v. Reddick, supra, 127. Again,
the prosecutor was merely cross-examining Mercier in
an attempt to impeach his credibility. Mercier’s asser-
tion of the privilege cannot be seen as having formed
the bases for inferences adding ‘‘critical weight’’ to the
prosecutor’s case. Although his refusal to answer ques-
tions concerning his use of marihuana could conceiva-
bly have caused the jury to draw an impermissible
inference that he was asserting the privilege in order
to hide the fact that he used marihuana; see State v.
Daley, 11 Conn. App. 185, 188, 526 A.2d 14 (1987); the
jury’s drawing that inference would not have given crit-
ical weight to the prosecution’s case. It would merely
have resulted in the discrediting of a defense witness.
Even if the possibility that the jury drew an impermis-
sible inference from the fact of Mercier’s assertion of
the privilege could be seen as being of critical weight,
any prejudice to the defendant caused thereby was
defused by Mercier’s subsequent testimony denying the
use of marihuana. That testimony presumably settled
whatever questions might have been raised in the minds
of the jurors regarding his reasons for asserting the
privilege. In any event, ‘‘no prejudice will generally be
68A
20 Conn. App. 115 123
State v. Person
presumed to flow from the refusal of a witness to
answer questions concerning acts committed by him
unrelated to the defendant’s alleged crime. . . .”’ Peo-
ple v. Jones, 138 App. Div. 2d 405, 406, 525 N.Y.S. 2d
689 (1988). We therefore conclude that the defendant
in this case was not unfairly prejudiced by a likelihood
that inferences from Mercier’s assertion of a fifth
amendment privilege added critical weight to the prose-
cution’s case in a form not subject to cross-examination.
The state acknowledges, however, and we agree, that
it was improper for the trial court to permit recross-
examination for the purpose of establishing incon-
sistency between the implications of Mercier’s asser-
tion of the privilege against self-incrimination and his
subsequent testimony that he had not used marihuana
in the defendant’s apartment. The refusal of a witness
to testify, on the ground that it would incriminate him,
cannot be the basis of any inference, either favorable
to the prosecution or favorable to the defendant. State
v. Daley, supra. Therefore, no inconsistency could be
shown between Mercier’s refusal to testify and his later
statement that he had not used marihuana in the
defendant’s apartment. We conclude, however, that the
error was harmless.
In his second claim, the defendant argues that it was
error for the trial court to prohibit him from establish-
ing, through the testimony of a psychiatrist and a psy-
chologist, that the defendant did not fit the profile of
a pedophile.
The trial court has wide discretion in ruling on the
admissibility of expert testimony. State v. Kemp, 199
Conn. 473, 476, 507 A.2d 1387 (1986). In reviewing the
trial court’s decision, we do not decide whether this or
any other court would have reached the same conclu
sion. State v.S & R Sanitation Services, Inc., 202 Conn.
300, 311-12, 521 A.2d 1017 (1987). Absent a manifest
69A
ee
124 20 Conn. App. 115
State v. Person
abuse of discretion, the trial court’s decision will stand.
State v. Spigarolag 210 Conn. 359, 376, 556 A.2d 112
(1989); State v. Hasan, 205 Conn. 485, 488, 534 A.2d
877 (1987). We agree with the state that the trial court
did not abuse its discretion when it rejected the defend-
ant’s proffer of expert testimony on whether the
defendant fit the profile of a pedophile.
A majority of the courts that have considered the
issue have rebuffed attempts on the part of the state
as well as the defendant to present testimony of this
kind. See, e.g., Douglas v. United States, 386 A.2d 289
(D.C. App. 1978) (evidence that defendant fit into
statistical category of abuser extremely prejudicial);
Sanders v. State, 251 Ga. 70, 303 S.E.2d 13 (1983); State
v. Loebach, 310 N.W.2d 58 (Minn. 1981) (error to admit
profile of battering parents); State v. Claflin, 38 Wash.
App. 847, 690 P.2d 1186 (1984); State v. Steward, 34
Wash. App. 221, 660 P.2d 278 (1983). In Douglas v.
United States, supra, 296, the court noted that the
defendant, through expert testimony, was attempting
to prove “‘that the absence of articulated or observa-
ble sexual abnormalities established the fact that he did
not commit the particular offense with which he had
been charged.”’ The court stated, “‘[w]Je do not regard
the field of psychology as being so exact . . . as to
be able to determine with sufficient reliability that an
individual did not commit a certain act, based solely
on the presence of some characteristics and the absence
of certain observable symptoms.”’ (Emphasis in origi-
nal.) Id. We agree that psychiatric evidence regarding
the propensity or lack of propensity of a defendant to
commit a crime should not be allowed. See C. Tait &
J. LaPlante, Handbook of Connecticut Evidence (2d
Ed.) § 7.16.3 (i). When scientific expertise is offered in
an area outside the general knowledge of the average
juror, the subject matter of such testimony must be suf-
ficiently established to have gained general acceptance
70A
20 Conn. App. 115 125
State v. Person
in the particular field. Frye v. United States, 293 F.
1013, 1014 (D.C. App. 1923). ‘‘ ‘Just when a scientific
principle or discovery crosses the line between the
experimental and demonstrable stages is difficult to
define. Somewhere in this twilight zone the evidential
force of the principle must be recognized, and while
courts will go a long way in admitting expert testimony
deduced from a well recognized scientific principle or
discovery, the thing from which the deduction is made
must be sufficiently established to have gained general
acceptance in the particular field in which it belongs.’ ”
State v. Hasan, supra, 489, quoting Frye v. United
States, supra; see also State v. Spigarolo, supra. The
defendant failed to elicit testimony from either expert
that the profile that was to be the subject of his testi-
mony was accepted by the scientific community.
Moreover, the trial court was justified in excluding
the expert testimony offered by the defendant because
the defendant failed to demonstrate that the witnesses
had a special skill or knowledge directly applicable to
a matter at issue that would make their testimony
informative and helpful to the juty. “Expert testimony
is admissible if the witness possesses a special skill or
knowledge directly applicable to a matter in issue, the
skill or knowledge is not commonly shared by the aver-
age person, and the testimony would be helpful to the
court or jury in considering the issues . . . .”’ State
v. Hasan, supra, 488. Although the defendant’s experts
testified that they were experienced in treating a num-
ber of sexual offenders and victims, they did not tes-
tify to having had any experience dealing with
incestuous relationships such as that presented in this
case. At least one modern commentator takes the view
that the incest offender’s chief aberrancy is incest and
that, usually, there is no history of other sexually
related problems occurring outside the family. Groff
& Hubble, “‘Incest,’’ 11 Criminal Justice and Behavior,
71A
126 20 Conn. App. 115
State v. Person
461, 473 (1984). Incestuous fathers are often excluded
from the studies of pedophiles. M. de Chesney, ‘‘Father
Daughter Incest,”’ 4 Behavioral Sciences and the Law,
382 (1985). Because the defendant never established
that his expert witnesses had expertise in areas directly
related to intrafamily sexual abuse, the trial court could
reasonably have concluded that it was unlikely that
their testimony would be of help to the jury.
The defendant’s third claim is that the trial court
erred in excluding evidence that the victim’s best fnend
had accused her father of conduct similar to the con-
duct in which the defendant had engaged. The follow-
ing facts are relevant. The friend was the first person
the victim told that she was being sexually abused by
her father. The friend reported the conversation to her
mother, who, in turn, informed the victim’s mother.
As a result of a complaint made by the friend, the
friend’s father had been charged with two counts of
risk of injury and two counts of sexual assault in the
second degree. To establish this fact and the fact that
the victim and her friend had discussed these matters,
the defense subpoenaed the friend. The state filed a
motion in limine seeking to bar the friend’s testimony.
The friend’s personal counsel moved to quash the sub-
poena. The defendant argued that the friend’s testi-
mony could be vital to the defense and that he wished
to question her for the purpose of proving knowledge
of sexual activity on the part of the friend and the vic-
tim and a motive on the part of the two children against
their respective fathers. Counsel wanted to investigate
the possibility that the victim had obtained her know1-
edge of sexual matters from stories told to her by the
friend, as well as the possibility that the victim and the
friend had either fabricated or fantasized the events
described by the victim. The trial court ruled that the
defendant could not question the friend regarding the
charges against her father, but that the defendant could
72A
20 Conn. App. 115 127
State v. Person
question her regarding statements the victim had made
to her concerning the activities of the defendant.:The
court relied, in part, on relevancy grounds.® Nes
The trial court has broad discretion in determining
the relevancy of proffered evidence. State v. Pollitt,
205 Conn. 61, 91, 530 A.2d 155 (1987). A ruling exclud-
ing evidence as irrelevant will not be disturbed absent .
a showing of a clear abuse of discretion. State v. Fritz,
204 Conn. 156, 167-68, 527 A.2d 1157 (1987); State v.
Watkins, 14 Conn. App. 67, 73, 540 A.2d 76, cert.
denied, 208 Conn. 804, 545 A.2d 1102(1988). In a deter-
mination of whether there has been an abuse of dis-
cretion, every reasonable presumption should be given
in favor of the correctness of the court’s ruling. State
v. DeAngelis, 200 Conn. 224, 238, 511 A.2d 310 (1986):
State v. E'scobales, 16 Conn. App. 272, 277, 547 A.2d
553 (1988).
The defendant urges upon us the proposition that,
because the victim and her friend made similar com-
plaints against their fathers, the jury should have been
made aware of this fact for the purpose of weighing
the credibility of the victim. The defendant’s argument
* The trial court apparently also based its ruling on General Statutes
§ 54-86d and § 54-86e, which provide as follows:
“[General Statutes] Sec. 54-86d. DISCLOSURE OF ADDRESS OR TELEPHONE
NUMBER BY VICTIMS OF SEXUAL ASSAULT. Any person who has been the
victim of a sexual assault under section 53a-70, 53a-70a, 53a-71, 53a-72a,
53a-72b or 53a-73a, or injury or risk of injury, or impairing of morals under
section 53-21, or of an attempt thereof, shall not be required to divulge
his or her address or telephone number during any trial or pretrial eviden-
tiary hearing arising from the sexual assault or injury er risk of injury to,
or impairing of morals of, children; provided the judge presiding over such
legal proceeding shall find: (1) Such information is not material to the pro-
ceeding, (2) the identity of the victim has been satisfactorily established,
and (3) the current address of the victim is made available to the defense.”’
“(General Statutes} Sec. 54-86e. INFORMATION RE NAME AND ADDRESS
OF VICTIM OF SEXUAL ASSAULT TO BE CONFIDENTIAL. The name and address
of the victim of a sexual assault under section 53a-70, 53a-70a, 53a-71,
S3a-72a, 53a-72b or 53a-73a, or injury or risk of injury, or impairing of morals
73A
128 20 Conn. App. 115
State v. Person
rests upon an assumption that the victim's credibility
would somehow automatically be placed in question by
evidence of the fact that she had a friend who claimed,
as did she herself, to have been the victim of sexual
abuse. There is no necessary logical link, however,
between the fact that the victim had a friend who also
claimed to be a victim of sexual abuse and a conclu-
sion that the victim might therefore be an unreliable
witness whose testimony regarding the defendant’s
actions was not worthy of belief. In the absence of evi-
dence tending to show the significance, if any, of the
fact that the friend had also claimed to have been sex-
ually abused, that fact indicates nothing about the
accuracy and reliability of the victim’s testimony
regarding the defendant. In the absence of evidence
to establish a connection between the friend’s personal
circumstances and-the victim’s credibility, the trial
court reasonably concluded that the basis for the
defendant’s questions was mere speculation and that
under section 53-21, or of an attempt thereof shall be confidential and shal
be disclosed only upon order of the superior court, except that such infor-
mation shall be available to the accused.”
In his reply brief, the defendant argues that “‘[t]o the extent that the tria]
court relied upon Conn. Gen. Stat. Sec. 54-86e . . . to rule that [the
friend's} testimony was to be excluded . . . it is unconstitutional as a vio-
lation of the due process clauses of the Constitution of The United States
and the State of Connecticut.”” The extent of the defendant's briefing of
this claim is this declaration in his reply brief followed by a citation to
Washington v. Tezas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019
(1967). We will not review this claim under these circumstances. In any
event, we need not review a constitutional claim where, as here, there is
some other ground on which the case may be decided. See State v. Warren,
14 Conn. App. 688, 699, 544 A.2d 209 (1988).
The record does not indicate whether the defendant argued that his con-
stitutional nght to confrontation would be implicated by a decision to exclude
the friend's testimony. Nevertheless, on appeal, he declares in his brief that
“(t)he trial court's decision to prohibit testimony concerning [the friend's}
accusations against her father denied [the] defendant his constitutional nght
to confrontation."’ Tne defendant did not brief this claim and therefore we
will not consider it.
74A
Oo? 6G oh ee Sey
20 Conn. App. 115 129
State v. Person
further inquiry was therefore unjustified. See State v.
Daniels, 8 Conn. App. 190, 194, 512 A.2d 936 (1986).
The defendant's fourth claim is that the trial court
erred both in admitting into evidence, as a state’s
exhibit, an audiotape recording of an interview with
the victim conducted by Detective Daniel Mulvey of the
Danbury police department, and in permitting the jury
to bring the tape into the jury room to play during its
deliberations. The circumstances surrounding admis-
sion of the tape were as follows. Mulvey testified that,
on February 10, 1987, he conducted an audiotaped
interview with the victim during which he took her
statement. Mulvey used a question and answer format
to obtain the statement. The state offered the tape as
an exhibit. The defendant objected on sixth amendment
. and hearsay grounds. The state argued that the tape
was admissible under the constancy of accusation
exception to the hearsay rule. The trial court agreed
with the state that the tape was admissible to show con-
stancy of accusation, and the tape was admitted as
state's exhibit 2 and played to the jury during the trial.
The trial court explained to the jury that the tape had
been admitted to shew constancy of accusation, and
it fully explained the constancy of accusation doctrine
in its instructions. The jury was permitted to take the
tape and a tape recorder into the jury room during
deliberations.
We first consider the state’s argument that the
defendant’s claim is not reviewable because the defend-
ant did not object when the court permitted the jurors
to take a tape recorder into the jury room so that they
would be able to play the tape during deliberations. The
state contends that the defendant thus failed to pre-
serve the issue for appellate review. See Practice Book
§ 4185. We disagree. The defendant’s objection to the
admissibility of the tape was sufficient to express his
objection to its submission to the jury. The purpose of
75A
130 20 Conn. App. 115
State v. Person
any evidentiary objection is to prevent the evidence
from being considered by the trier of fact. Having
objected to the admissibility of the tape, the defend-
ant successfully preserved the issues distinctly raised
before the trial court for appellate review. See Prac-
tice Book § 4185. He was not required to repeat those
objections at the time the jury was given the tape
recorder for use during deliberations.
Although we have found that the defendant took the
necessary steps in the trial court to preserve for appel-
late review the issue of whether the trial court erred
in admitting the tape under the constancy of accusa-
tion exception to the hearsay rule, we nevertheless
decline to review his claim because he has failed ade-
quately to brief the issue.* Under such circumstances,
we Consider the claim abandoned and decline to review
it. See State v. Frocchi, 17 Conn. App. 326, 327 n.3,
553 A.2d 181, cert. denied, 210 Conn. 812, 556 A.2d
611 (1989). Similarly, although the defendant objected
in the trial court to admission of the tape on the ground
of denial of his sixth amendment right to confronta-
tion, and now repeats that claim on appeal, he has failed
to discuss the issue in his briefs to this court.” We there-
fore decline to review this claim as well.
* The defendant does declare in his brief that the constancy of accusa-
tion rule “does not permit the admission of prior written, oral or video-
taped statements of the victim. It simply permits the witness, in this case
Detective Mulvey, to repeat what the victim told him, as long as the victim
has so testified about the matter on direct examination.” Then, in his reply
brief, the defendant states, “‘[wJhile the taped interview was allowed under
the constancy of accusation exception to the hearsay rule, that exception
could only apply to the complainant's pnor statement, not the statements
of Detective Mulvey."’ These declarations by the defendant represent the
only briefing on the issue of whether the trial court erred in admitting the
tape under the constancy of accusation exception to the hearsay rule. The
defendant has cited no authonty in support of these propositions.
’ The defendant's attempt to brief the issue is limited to a declaration
in his reply brief that his “‘sixth amendment nght to confront Detective
Mulvey was violated" by the court's decision to allow the jury to bring the
tape to the jury room for use during deliberations.
76A
20 Conn. App. 115 131
State v. Person
The defendant's fifth claim of error is that the trial
court erred in permitting two police detectives to ren-
der opinions concerning the victim’s credibility and
“common pattern”’ evidence in child abuse cases. Nei-
ther his claim that one of the detectives was improp-
erly allowed to comment on the credibility of the victim,
nor his claim that the other detective was impermissi-
bly permitted to testify regarding patterns of conduct
of child molesters, was raised by him in the trial court.
We need not review evidentiary claims that were not
distinctly raised in the trial court. See Practice Book
§ 4185; State v. Rogers, 199 Conn. 453, 462, 508 A.2d
11 (1986). Moreover, the defendant states no claim for
review under State v. Evans, 165 Conn. 61, 67-69, 327
A.2d 576 (1973), and we see no reason to accord the
defendant’s claims plain error review. See State v.
Smith, 209 Conn. 423, 426-27, 551 A.2d 742 (1988).
The defendant's sixth claim is that the trial court
erred in twice refusing to grant a mistrial following
questions by the prosecutor concerning use of mari-
huana at the defendant’s apartment. The prosecutor
first raised the question of marihuana use during the
victim's testimony. When the victim was asked if the
defendant smoked anything around her, she answered
that he smoked cigarettes. The victim was then asked
whether the defendant ever smoked anything else. The
defendant objected, and the jury was excused. The
court sustained the objection and gave a cautionary
instruction. The defendant moved for a mistrial, and
the court denied the motion.
The issue of marihuana use arose again when the
defendant called his landlord, Joseph Marzullo, who tes-
tified on direct examination that the defendant and the
victim had a good relationship. On cross-examination,
the prosecutor asked Marzullo if his opinion about the
defendant’s relationship with the victim would change
if he knew that the defendant regularly smoked mari-
T7A
132 20 Conn. App. 115
State v. Person
huana in front of the children. The defendant objected,
and the jury was excused. The court sustained the
objection. The defendant moved again for a mistrial,
and the court denied the motion.®
The general rule in Connecticut is that a mistrial is
granted only where it is apparent that as a result of
some occurrence during trial a party has been deprived
of the opportunity for a fair trial. State v. Hancich, 200
Conn. 615, 624-25, 513 A.2d 638 (1986); State v. Mal-
donado, 193 Conn. 350, 356, 478 A.3d 581 (1984). The
trial court enjoys wide discretion in deciding whether
a mistrial is warranted, and its decision will be reversed
on appeal only if it is established that this discretion
has been abused. State v. Hancich, supra, 625.
The defendant argues that, because drug use is
regarded by many persons “‘in today’s environment’’
as a major threat to society, testimony about marihuana
use at the defendant’s apartment in the presence of
his children was “‘so obviously prejudicial as to deny
the defendant a fair trial.’” We disagree with the
defendant’s contention that in the circumstances of this
case the trial court should have declared a mistrial. In
the first instance, the record fails to support the defend-
ant’s contention that there was any ‘‘testimony’”’
regarding the use of marihuana. It appears that objec-
tions were made and sustained on both occasions that
the prosecutor attempted to elicit information in this
regard. Even if the questions were improper, as the
trial court apparently decided they were, the fact that
the questions were asked is not enough to deprive the
defendant of a fair trial, particularly where the court
gave an appropniate cautionary instruction to the jury.
* In his brief, the defendant also points to the prosecutor's attempt to
elicit responses regarding the use of manhuana from Dean Mercier. The
claim involving Mercier has been sufficiently addressed in our discussion
of the defendant's first claim of error. It is unnecessary to repeat that dis-
cussion as part of our review of his sixth claim.
78A
LL
20 Conn. App. 115 133
State v. Person
We conclude that the trial court did not abuse its dis-
cretion in denying the defendant’s motions for a mis-
trial.
The defendant’s final claim is that the trial court
erred both in admitting hearsay testimony that the
defendant’s sister had told his older daughter not to
testify and then in advising the defendant’s sister, in
the presence of the jury, of her privilege against self-
incrimination. .
The state called Jo-Ann Person, the mother of the
defendant’s older daughter. She testified that the
defendant’s older daughter had told her that the
defendant’s sister, Holly Person, had called and asked
his older daughter noi to testify against the defend-
ant. The defendant objected on the ground that the tes-
timony was hearsay. The trial court admitted the
testimony under the constancy of accusation exception
to the hearsay rule.
Later in the trial, the defendant’s sister was called
to testify. The defendant asked her whether she had
telephoned Jo-Ann Person in March, 1987, and Holly
Person responded that she had done so. The defend-
ant asked her who had answered the telephone. Holly
Person answered that the defendant’s older daughter
had answered. When the defendant asked Holly Per-
son to describe what occurred during the ensuing tel-
ephone conversation, the state objected, and the court
engaged the witness in the following exchange:
“The Court: I should warn you, since you do not have
an attorney present, and I have been informed, I don’t
know if it’s true or not, but we got partially into the—
are you under arrest for any criminal charge?
“The Witness: No, I am not.
‘The Court: Okay. There was a reference by the police
department that they made a referral to another police
79A
134 20 Conn. App. 115
State v. Person
department concerning these telephone calls, and I just
wish to tell you that you do not need to answer any
of these questions on the grounds that it might tend
to incriminate you.
“The Witness: Your Honor—
“The Court: Since you don’t have an attorney here,
I’m obligated, by law, to tell you that.
“The Witness: Thank you, Your Honor. May I answer
the question?
“The Court: That’s going to be up to you.
“The Witness: I will. May I explain?
‘The Court: No, I don’t know what the question is,
now —let’s get to the question.”’
Thereafter, the witness answered questions concern-
ing the telephone conversation.
The defendant argues that the court’s admission of
Jo-Ann Person's testimony regarding what the defend-
ant’s older daughter told her was erroneous because
the testimony was hearsay. We will not review this
claim because the defendant has failed to brief the issue
of whether the trial court erred in admitting the testi-
mony under the constancy of accusation exception to
the hearsay rule. We note, however, that even if the
court’s ruling was erroneous, the defendant has failed
to demonstrate that such error was harmful. When a
claimed error is evidentiary, the defendant bears the
burden of establishing its harmfulness. State v. Nelson,
17 Conn. App. 556, 568, 555 A.2d 426 (1989). In this
case, the jury had already heard, from the defendant’s
older daughter herself, about Holly Person’s telephone
conversation with her. An erroneous ruling should not
be considered reversible error if the evidence admit-
ted thereby has already properly entered the case. Id.
80A
20 Conn. App. 115 135
ae State v. Person
Therefore, even if the trial court erred in admitting Jo-
Ann Person's testimony regarding what the defend-
ant’s older daughter told her, the record is clear that
the error was harmless.
With regard to the court’s remarks to Holly Person,
the defendant argues that the court erred in question-
ing her as it did in the presence of the jury “in a man-
ner bearing directly on her credibility.” Relying on
State v. Echols, 170 Conn. 11, 14, 364 A.2d 225 (1975),
he argues that a judge must refrain from making
remarks that are indicative of either favor or condem-
nation. The defendant contends that the court’s
remarks deprived him of a fair trial.
The defendant’s arguments are without merit. First,
on the basis of the evidence presented at the trial, the
court simply anticipated the possibility that the witness,
who was not represented by counsel, might be entitled
to assert her fifth amendment privilege against self-
incrimination. The court took reasonable steps to
inform the witness of her rights and to give her a
meaningful opportunity to exercise them if she chose.
We do not think this solicitousness on the part of the
court with regard to the witness’ constitutional nghts
caused the witness’ credibility to be compromised
before the jury. Moreover, the court’s action was not,
as claimed by the defendant, in any way indicative of
condemnation. We fail to see how the court’s remarks
could possibly have caused the defendant to be deprived
of a fair trial.
There is no error.
In this opinion the other judge
B1A 4
APPENDIX E
Excerpt of Arrest Warrant Application
For John Ardell
ores
Excerpt of Arrest Warrant Application
Dated February 24, 1987
NAME AND RESIDENCE (Town) OF ACCUSED
John Ardell, 68 Sport Hill Road, Easton, CT
AFFIDAVIT
That I, the undersigned, Police Officer Elizabeth A.
Briggs, #10, a regular member of the Easton Police
Department for the past 2 1/2 years do hereby make the
following affidavit:
That the following set of facts and circumstances are
Stated from personal knowledge, observation and
investigation as well as from information received from
brother officers acting in their official Capacity.
That I, the undersigned, hold in my possession a Report
of Suspected Child Abuse/Neglect (Form CYS-136) as
filed by Dr. Judith Hochstadt of 1172 Post Road,
Fairfield, Ct. on one Lauren Ardell (DOB: 11/ 12/79) of
122 Eleanor Terrace, Fairfield, CT.. Report states that
Lauren Ardell reported to her mother Julia Rose of 112
Eleanor Terrace, Fairfield, Ct. (DOB: 11/02/47) that
Lauren’s father, John Ardell, sexually abused her by
asking her to “suck his penis".
83A
That I, the undersigned, hold in my possession a CYS
737 report as submitted by Social Worker, Susie Laffitte
of the Department of Children and Youth Services, 1115
Main Street, Bridgeport, Ct. detailing report of Dr.
Hochstadt that Lauren goes with her father on weekends
and week days (no set schedule) and he has forced her to
perform oral sex on him and he puts his penis near her
vagina but never in her. Susie Laffitte of DCYS spoke
with the office of Dr. Hochstadt and reported the
incident to this department. (John Ardell, 68 Sport Hill
Road, Easton, CT., DOB: 5/7/47)
That I, the undersigned, during my initial investigation
and continued investigation have determined that Lauren
visited he father on weekends and week days (no set
schedule for visitation) and that also during these visits
from November 1985 to December 1986 abuses took
place.
That on February 5, 1987, at approximately 2000 hours,
Mrs. Judith Rose and her daughter, Lauren Ardell,
personally appeared at the Easton Police Department. I
hold :n my possession a sworn written statement
submitted by Mrs. Judith Rose that on February 3, 1987,
at approximately 1900 hours, her daughter, Lauren
Ardell was talking to her about a school friend that was
being sexually abused by her father at which time Lauren
became hysterical and told Mrs. Rose that it was
happening to her also. As this time Lauren told her
mother that in the past she had "sucked her father’s-
*
84A
penis". Mrs. Rose was unsure as to how to handle the
situation and did not press Lauren for any more details.
Mrs. Rose then called her ex-husband and Lauren’s
father, John Ardell, who was in Nantucket at the time
and told him what Lauren had said. Mr. Ardell denied
the incident and told Mrs. Rose that Lauren was a
"Lolita" who had "come on" to him. Mr. Ardell stated
to Mrs. Rose that Lauren was the one with the sexual
problems not him. Mrs. Rose continued that on
February 4, 1987 she took Lauren to Dr. Hochstadt
where she was examined by the doctor and the reports
were filed. Mrs. Rose also added that one of the reasons
she and John Ardell were divorced was because she and
he had sexual problems.
That, after speaking to Mrs. Rose, the undersigned did
speak to Lauren Ardell alone. Lauren is a seven year
old, who appears to be confident in what she says and
articulates he thoughts well. Through the use of
questions, visual aids and anatomically correct drawings
the undersigned was able to determine what had
happened to Lauren. Lauren said that starting in 1985,
approximately November, her father, John Ardell had
Started to ask her to suck his penis. Lauren stated that
she did not know what this meant and that he had pointed
to the area of his groin. Lauren did not feel that this
was right and did not want to do it. Lauren stated that
when she saw her father at his house in Easton he kept
asking her to suck his penis. Lauren stated that in the
beginning of 1986 she did put her father’s penis in her
85A
mouth in the hopes that he would stop asking. Lauren
stated that she did not like it and pretended to have to go
to the bathroom in order to stop. Lauren did point out
int drawings a penis, and she did know what the word
“suck" meant. Lauren was also able to describe an
erection, stating that at first the penis was soft and small
in her mouth that it began to get harder and that her
father had said it was her fault. Lauren was worried
about this. Lauren said that her father kept on asking
her to suck his penis, but that she hadn’t since the first
occurrence.
That on Monday, February 9, 1987 the undersigned did
receive a phone call from Mrs. Rose. Mrs. Rose. said
that Lauren had become very upset that day and told
Mrs. Rose that she hadn’t told the undersigned of Dr.
Hochstadt the whole truth and that some more incidents
of abuse had happened to her.
That on Wednesday, 11, 1987 Mrs Julia Rose and
Lauren Ardell returned to Easton Police Headquarters.
Mrs. Rose submitted a sworn written statement that on
February 9, 1987 Lauren told her that she had her
father’s penis in her mouth more than once and that he
had his penis in her vagina. Mrs. Rose took Lauren
back to Dr. Hochstadt and to a psychologist, Dr. Fred
Bader. As far as could be determined by the doctor
when Lauren said that the penis had been in her vagina it
was between.her legs. The doctor did not find any
evidence of penetration. Mrs. Rose also recalled an
86A
incident where John Ardell had told her that Lauren had
pulled down her pants ‘bent over’ and told Mr. Ardell
‘suck my ass’.
That, after speaking to Mrs. Rose, the undersigned then
spoke to Lauren Ardell alone. I first asked Lauren why
she had not told me everything the first time. Lauren
Stated that she did not want me to think that she was a
bad girl and she was afraid to tell. Again I used visual
aids and drawings to help Lauren tell her story. Lauren
told me that she had ‘sucked’ her father’s penis on
several occasions not just once. Lauren described how
her father would lie down on the bed or on the couch in
the living room, (Lauren told the undersigned that she
had been in the bedroom a lot with her father), and that
she would kneel along side of him and suck his penis.
Lauren did not have any concept of ejaculation. Lauren
also went on to describe how she would lie down on the
bed and her father would hold he up slightly while he put
his penis between he legs. I asked Lauren if anything
else happened. At this point Lauren became quiet and
said she was embarrassed. Lauren had trouble talking
about this but she stated that on a few occasions her
father had taken down her pants, bend her over, and had
touched her ‘hiney’. Lauren did not know the word
anus, but she spoke of her ‘rear end’.
That on February 13, 1987, at approximately 2245
hours, the undersigned was able to contact John Ardell
and requested him to come to Easton Police
87A
Headquarters, which he did at approximately 2305 hours.
Mr. Ardell was told that this department had received
complaints of sexual abuse to a Lauren Ardell, and that
he was the named abuser. After informing Mr. Ardell of
his constitutional rights, Mr. Ardell chose to waive these
rights and gave a sworn written statement which I hold in
my possession. Mr. Ardell states the following: He
denies any implications and indicates that in fact the
allegations are erroneous and further describes several
episodes of abnormal acts of sexual connotation by his
daughter. Mr. Ardell states that he believes this
behavior is due to the fact that Lauren was molested by a
babysitter in Wayne, New York in approximately 1982
and that another babysitter in Ct was arrested for child
molesting on October 1985. Mr. Ardell also stated that
on occasions in 1985 the Fairfield Police had been
summoned to his ex-wife’s (Julia Rose) home in
Fairfield, CT on a complaint that the children, Lauren
and Brian, were not supervised.
That I, the undersigned, continued my investigation and
re-interviewed Julia Rose concerning her ex-husband’s
John Ardell, statement.
That I, the undersigned, have a sworn written statement
of Mrs. Rose who states that Lauren had not been
molested in Wayne, New York. At that time Lauren was
3 years old and the babysitter was a 13 year old boy.
Both Mr. & Mrs. Rose thought it would be better if the
babysitter was a female and the boy was dismissed.
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Mrs. Rose further went on concerning the incident in
Fairfield, CT.. At the time, 1985, she and her family
were living at 312 Riverside Drive in Fairfield, Ct. when
the woman who lives downstairs at that address called
the police to complain that the Ardell children were not
being supervised. Upon investigation the Fairfield Police
found a babysitter with the children as well as their
father, John Ardell. In regards to the babysitter being
arrested, Mrs. Rose stated that she had employed ‘Sitting
and Home Care Services’ to find her a reliable babysitter
for the children. A man was sent to Mrs. Rose, he only
sat for a short time. This man was later arrested
Fairfield Police Department for child molesting. There
was no evidence that Lauren or Brian had been molested.
That I, the undersigned, again continued my investigation
and contacted the police agencies of Wayne, New York
and Fairfield, Ct. Both agencies had not record of the
first two preceding incidents. In regards to the babysitter
who was arrested in Fairfield the undersigned holds in
my possession a report from Fairfield Police Officer
VonHoltz that states the babysitter, Brian Bonello, was
arrested for assaulting a boy he was sitting for, and that
there was no evidence that the Ardeil children had been
abused by Brian Bonello.
That I, the undersigned, hold in my possession a written
statement from the niece of Julia Rose, Susan J.
Hamilton, of the Village of Bath, New York, County of
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Stuebin, N.Y., which states that from her age of 10 to
16 she was sexually abused by John Ardell.
That I, the undersigned, hold in my possession an
investigative report of the Danbury Police Department
which describes the meeting of Lauren Ardell and Jamie
A. Person corroborating Lauren’s reference to the fact
that both she and her friend, Jamie, were the victims of
sexual abuse by their respective fathers.
That I, the undersigned, Police Officer Elizabeth A.
Briggs 10 of the Easton Police Department do hereby
request an Arrest Warrant be issued for the arrest of
JOHN ARDELL, 68 Sport Hill Road, Easton, Ct. (DOB:
5/7/47) for the charges of:
53a-71 --- Sexual Assault, 2nd
53-21 --- Risk of Injury to a Minor
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APPENDIX F
Excerpt of Arrest Warrant Application
For Eric N. Person
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i
Excerpt of Arrest Warrant Application
Dated March 10, 1987
NAME AND RESIDENCE (Town) OF ACCUSED
ee ee ee Danbury
AFFIDAVIT
The undersigned, being duly sworn, deposes and says:
That the affiant, Daniel Mulvey, is presently a
member of the Danbury Police Department and has been
for a period of service for five years and months. That
during said police service the affiant has conducted and
participated in numerous investigations into various
forms of criminal activity which have resulted in
numerous arrests and convictions.
That on February 05, 1987, Detective Russell
Benjamin of the Danbury Police Department Youth
Bureau received a call from Susie Laffette who is
employed as a Social Worker for the Bridgeport,
Connecticut office of the Department of Children and
Youth Services. That Laffette stated to Detective
Benjamin that one Jamie Alexandra Person who was born
in Bridgeport, Connecticut on July 27, 1979 had been
sexually assaulted by her natural father, identified as one
Eric Norman Person who is a Danbury resident, who
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§
3
=]
§
}
according to Department of Motor Vehicle records was
born on August 15, 1944.
That the affiant, Daniel Mulvey, interviewed the
mother of Jamie Person, identified as Debra Person of
545 Roland Road, Fairfield, Connecticut, at the Danbury
Police Department on February 10, 1987 and she
reported the following: that at one time she was married
to Eric Person and together they had two children
identified as Cameron and Jamie Person. That Eric and
Debra divorced in June 1981, that Eric has joint custody
with liberal and agreeable visitation.
That Debra Person stated to the affiant on February
03, 1987 that she observed her daughter Jamie was
upset, that Jamie told her mother that she would be
receiving a call from a Judy Rose. That Rose is the
mother of sever year old Laurie Ardell, that Ardell is a
friend of Jamie Person. That Judy Rose called the
Person home and arranged to meet with Debra later that
day. Debra stated that Rose came to her home and
disclosed to her that Jamie had been molested, sexually,
by her father. That Jamie initial disclosed these
allegations to Laurie Ardell.
That Debra Person stated to the affiant that she
confronted her daughter with these allegations, that Jamie
Stated in the presence of Rose and Ardell that her father
asks her to “lick and suck" his penis, that she had
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advised her father that what they had been doing was
wrong but that the same behavior continued anyway.
That on February 10, 1987, the affiant interview
Jamie Person at the Danbury Police Department. That
the affiant along with Danbury Detective Ingrid Yakacki
again interviewed Jamie Person at her home, 545
Rowland Road, Fairfield, Connecticut on March 04,
1987. That the affiant found the child to be
appropriately intelligent for her age and possessed a good
recollection of what had taken place between her father
and herself. That Jamie stated that her mother and father
divorced and since that time she has usually seen her
father, Eric Person, on the weekends, Saturdays and
Sundays.
That Jamie Person states to the affiant that behavior
of a sexual nature began when she was five years old and
remembers being in kindergarten at the time. That these
incidents of a sexual nature occurred at her fathers
Danbury Apartment, 22 Harrison Street, in the fathers
bedroom where she would go to take a nap in the fathers
bed. That behavior of a sexual nature continued until
her last visit to her fathers apartment, towards the end of
January 1987. The victim advised that one incident
occurred in her father car.
That Jamie Person stated to the affiant that the
molestations began with her father, Eric Person, kissing
her on her lips, neck and ears, that this continued for a
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while and her father began to kiss Jamies breasts. Jamie
Stated that during these times in the beginning that she
would also kiss her fathers lips, neck and ears.
That Jamie Person stated to the affiant that towards
the end of her fifth year the molestations progressed to
where her father began to caress and penetrate her vagina
with his fingers.
That her father also began to engage in oral sex
with her during this approximate time frame. That Jamie
stated shortly after the aforementioned behavior began
that she engaged in oral sex with her father and also at
his request she would fondle his penis. Jamie stated that
her actions with her fathers penis would stimulate her
father to the point of ejaculation. That Jamie stated on
occasion that her father would place his penis on her
breasts and would move, rub his penis i
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.