State v. Hoa Van Nguyen

Opinion SULLIVAN, J. The defendant, Hoa Van Nguyen, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), and risk of injury to a child in violation of General Statutes § 53-21. The defendant claims that the trial court improperly (1) found a violation of its sequestration order and consequently excluded a defense witness, (2) denied the defendant’s motion for an independent medical examination of the victim and (3) failed to instruct the jury on the issue of the credibility of a child witness as requested by the defense. We affirm the judgment of the trial court. — 87 — A jury reasonably could have found the following facts. The defendant, his wife and the victim’s parents jointly purchased and lived together in a single-family home in West Hartford. In 1994, the five year old victim, Q, and her brother went to play in the basement of the house. The defendant was already in the basement and asked the victim’s brother to go back upstairs and to lock the basement door behind him. The defendant then removed Q’s shorts and underpants and unfastened his trousers. He forced Q to stimulate his penis manually and then inserted his penis into her vagina. Afterwards, the defendant told Q that he would buy her a toy if she kept secret what had happened. Q went upstairs and told her mother what had occurred. The West Hartford police arrested the defendant and he was subsequently convicted. I The defendant first claims that the trial court improperly determined that the defendant’s attorney had violated the court’s sequestration order. We disagree. The following additional facts are necessary to our determination. The trial court granted the state’s motion for a sequestration order pursuant to Practice Book § 876, now § 42-36.1 During the defendant’s case-in-chief, the defendant’s wife testified that Q’s parents were physically abusive when disciplining Q and her brother, that they had fabricated the rape charge to gain control of the jointly owned house and that Q had cooperated with her parents out of fear of physical punishment. Immediately following that testimony, the — 88 — prosecutor overheard part of a closed door discussion in a room outside of the courtroom between the defendant’s attorney, the defendant’s wife and George Thibo-deau, the next defense witness and a friend of the defendant. The prosecutor immediately brought this to the attention of the trial court, claiming that the discussion concerned the testimony just given by the defendant’s wife and that it violated the court’s sequestration order. The defendant’s attorney stated: “I may have asked [the defendant’s wife] a question about what she said when she testified, yes. She was upset, and she was inquiring about [whether she had said] the right thing, that sort of thing, but, you know, I responded to that mainly because my thinking was that, well, this witness has testified. You know, it’s not really an issue what she says in front of anybody not really thinking about Thibodeau, who was in the comer basically reading the paper.” On the basis of these statements, the court concluded that there had been a violation of its order and barred Thibodeau’s testimony. The next day the defendant moved the trial court to reconsider its decision. The court declined. A The defendant first claims that the trial court improperly found a violation of the sequestration order without first conducting an evidentiary hearing. We do not agree. “An inquiry into the facts and circumstances of each case is necessary to ascertain whether the purpose of a sequestration order has been thwarted.” State v. Scott, 16 Conn. App. 172, 182, 547 A.2d 77, cert. denied, 209 Conn. 821, 551 A.2d 758 (1988). That inquiry, however, need not take the form of a formalized evidentiary hearing. See State v. Brown, 235 Conn. 502, 526, 668 A.2d 1288 (1995) (en banc) (trial court must conduct some type of inquiry into allegations of jury misconduct, but — 89 — form and scope rest within court’s sound discretion); State v. Haye, 214 Conn. 476, 482-83, 572 A.2d 974 (1990) (representations of counsel may suffice to support good cause finding for continuance of statutory probable cause hearing). There are instances “in which a trial court will rightfully be persuaded, solely on the basis of the allegations before it and the preliminary inquiry of counsel on the record.” State v. Brown, supra, 528. “To impose a requirement of a factual showing in every case to support representations of counsel concerning such matters would impugn the veracity of counsel and impose a staggering burden of time and effort on our already overburdened court system. Evi-dentiary support of counsel’s representations may be found necessary by the court only under certain contested circumstances; see State v. Aillon, 202 Conn. 385, 521 A.2d 555 (1987); or where otherwise required by statute, our rules of practice, or the rules of evidence.” State v. Haye, supra, 482-83. In this case, defense counsel represented to the court that he and the defendant’s wife had discussed elements of her testimony in Thibodeau’s presence. If defense counsel’s representations had been at odds with the state’s assertions or merely self-serving, we would agree that a more searching inquiry would be required but that is not the case here.2 The court was justified in relying upon the statements of the defense attorney in making its decision. Indeed, defense counsel’s statement that “[he] may have asked [the defendant’s wife] a question about what she said when she testified [while] Thibodeau . . . was in the comer” constitutes a judicial admission. “Judicial admissions are voluntary and knowing concessions of — 90 — fact by a party or a party’s attorney occurring during judicial proceedings.” Jones v. Forst, 41 Conn. App. 341, 346, 675 A.2d 922 (1996). A judicial admission “is, in truth, a substitute for evidence, in that it does away with the need for evidence.” (Internal quotation marks omitted.) State v. Jones, 50 Conn. App. 338, 352, 718 A.2d 470 (1998). Furthermore, defense counsel’s later statements in no way contradict his admissions that he, the defendant’s wife and Thibodeau were present in the anteroom and that he and the defendant’s wife discussed the testimony she had just given. The trial court properly relied on his judicial admission. Moreover, the defendant failed to request an evidentiary hearing at trial. He cannot demand a full evidentiary hearing for the first time on appeal. See State v. Brown, supra, 235 Conn. 530; Spicer v. Spicer, 33 Conn. App. 152, 161, 634 A.2d 902 (1993), cert. denied, 228 Conn. 920, 636 A.2d 850 (1994). We conclude that the trial court acted properly. Even assuming that the trial court had made an improper finding, however, we conclude that Thibodeau’s testimony was cumulative, as we will discuss in part I C of this opinion. B The defendant next argues that the trial court could not find a violation of its sequestration order because any communication that did take place occurred outside of the courtroom. We find no merit to this argument. “The primary purpose of a sequestration order is to ensure that the defendant receives a fair trial by preventing witnesses from shaping their testimony to corroborate falsely the testimony of others. State v. Pikul, 150 Conn. 195, 200, 187 A.2d 442 (1962). State v. Crumble, 24 Conn. App. 57, 61, 585 A.2d 1245, cert. denied, 218 Conn. 902, 588 A.2d 1077 (1991).” (Internal — 91 — quotation marks omitted.) State v. Sherman, 38 Conn. App. 371, 413-14, 662 A.2d 767, cert. denied, 235 Conn. 905, 665 A.2d 905 (1995). Although the language of Practice Book § 876 may seem merely to bar “a sequestered witness from being in the courtroom when he is not testifying”; (internal quotation marks omitted) State v. Falby, 187 Conn. 6, 27, 444 A.2d 213 (1982); we do not follow so rigid an interpretation. Indeed, such an inteipretation “would vitiate any sequestration order by exalting form above substance.” Id. Here, defense counsel admitted having discussed the testimony of the defendant’s wife in Thibodeau’s presence. The defendant had joined the state’s motion for a sequestration order pursuant to Practice Book § 876, now § 42-36. Moreover, the defendant was put on notice as to the scope of the order by the court’s previous questions to Elizabeth Foran, Q’s guardian ad litem. In fact, when the issue of Foran’s presence in the courtroom arose, the defendant urged a broad construction of the sequestration order and indicated his understanding that the order was not limited to barring prospective witnesses from the courtroom.3 Therefore, we conclude that the court had reasonable grounds for finding a violation of its order. C Finally, the defendant argues that, even if the court properly found a violation of its order, the sanction — 92 — imposed by the court violated his constitutional right to present a defense. Alternatively, he argues that, if the exclusion of Thibodeau’s testimony is not of constitutional magnitude, the trial court nonetheless abused its discretion. We disagree with both of the defendant’s assertions. “The remedy for such a violation [of a sequestration order] rests in the trial court’s discretion, guided by a primary concern for the fairness of the trial, not the culpability of the [offender].” (Internal quotation marks omitted.) State v. Sherman, supra, 38 Conn. App. 414. “We acknowledge, however, that, under particular circumstances, the unjustified exclusion of a witness’ testimony can amount to a deprivation of the defendant’s right to present a defense. See, e.g., Braswell v. Wainwright, 463 F.2d 1148, 1155-56 (5th Cir. 1972) (holding that trial court’s discretionary exclusion of sole corroborating witness’ testimony denied defendant fundamental constitutional right). If an impropriety is of constitutional proportions, the state bears the burden of proving that the error was harmless beyond a reasonable doubt. State v. Colton, 227 Conn. 231, 253-54, 630 A.2d 577 (1993) [on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995)].” State v. Cavell, 235 Conn. 711, 720, 670 A.2d 261 (1996). The exclusion of Thibodeau’s testimony did not prevent the defendant from effectively presenting his defense. Thibodeau would have testified to the physical punishments administered to Q and her brother by their parents, a fact already testified to by the defendant’s wife, by Q and by her brother. The defendant was still able to maintain his theory that Q’s parents concocted the sexual assault allegations and Q acquiesced out of fear of physical retribution. In fact, the defendant argued precisely that in his closing argument. We are unpersuaded that the trial court’s decision violated any of the defendant’s constitutional protections. — 93 — “The standard for determining whether a nonconsti-tutional error is harmless is that [t]he defendant must show that it is more probable than not that the erroneous action of the court affected the result.” (Internal quotation marks omitted.) State v. Cavell, supra, 235 Conn. 721-22. Even assuming arguendo that a noncon-stitutional error exists, we are not convinced that the defendant was harmed. The defendant was in no way foreclosed from arguing his theory that Q acquiesced in her parents’ scheme out of fear of physical punishment. The defendant argues that because the witness was his wife, her testimony about the physical punishments suffered by Q and her brother would have been more credible to the jury if corroborated by someone outside of the family, such as Thibodeau. Although Thibodeau was barred from corroborating the testimony of the defendant’s wife about the physical punishments suffered by Q, that testimony was corroborated by both Q and her brother. The defendant could not find witnesses less partial to him than the victim and her brother. We conclude that the trial court properly found a violation of its sequestration order and fashioned an appropriate remedy. II The defendant next claims that the trial court abused its discretion in denying the defendant’s motion for a physical examination of the victim. We disagree. The following additional facts are necessary to our determination of this issue. An initial physical examination by Angela Quattrocelli, a pediatric resident at Hartford Hospital, was inconclusive as to sexual assault. A referral examination conducted the day after Quattro-celli’s examination by Debra Brown, director of the child abuse program at Hartford Hospital, concluded — 94 — that there was a tear of the hymen at the seven o’clock position. An examination five months later by Frederick Rau, a pediatric gynecologist, concluded that there was a tear of the hymen between the five and six o’clock positions. At trial, Rau discounted the discrepancy with Brown’s finding, noting that both findings are within the same range and not medically inconsistent for the gynecological examination of a child. The defendant maintains that a further examination would have shown the existence of a second tear of the victim’s hymen, which had occurred at a time when the defendant was not in contact with her. We review the denial of a motion for a physical examination of a sexual assault victim under an abuse of discretion standard. State v. Esposito, 122 Conn. 604, 607-608, 191 A. 341 (1937). “In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) State v. Hoth, 50 Conn. App. 77, 87-88, 718 A.2d 28, cert. denied, 247 Conn. 922, 722 A.2d 811 (1998). The defendant must “establish a nexus between the proffered evidence . . . and a material fact or issue involved in the case.” State v. Hickey, 23 Conn. App. 712, 714, 584 A.2d 473, cert. denied, 217 Conn. 809, 585 A.2d 1233, cert. denied, 501 U.S. 1252, 111 S. Ct. 2894, 115 L. Ed. 2d 1058 (1991). This court has never suggested, however, that that is the only criterion for determining whether an order for a physical examination will issue. In a majority of jurisdictions, courts balance the well-being of the victim against the need of the defendant before ordering an independent physical examination. See, e.g., Lanton v. State, 456 So. 2d 873, 874 (Ala. Crim. App. 1984) (physical examination of child victim should be ordered only in situations of — 95 — “ ‘extreme necessity’ ”), cert. denied, 471 U.S 1095, 105 S. Ct. 2314, 85 L. Ed. 2d 834 (1985); State v. Garrett, 384 N.W.2d 617, 619 (Minn. App. 1986) (defendant must show “compelling need”); State v. D.R.H., 127 N.J. 249, 265, 604 A.2d 89 (1992) (defendant’s need must “clearly outweigh” potential harm to victim); State v. Ramos, 553 A.2d 1059, 1062 (R.1.1989) (trial court has discretion to order physical exam only in “most compelling of circumstances”). The trial court in this case acted neither unreasonably nor arbitrarily in exercising its judgment. In cases involving child victims of sexual assault, courts face the difficult task of balancing the protection of the victim against the need of the defendant to present a defense. The defendant was able to cross-examine the physicians effectively. The physicians found only one tear of the hymen, and the only discrepancy was the position of the tear. Rau explained why his report was not medically inconsistent with Brown’s findings and noted that children tend to move during gynecological examinations, so that seven o’clock and five or six o’clock are essentially in the same range. On the basis of our reading of the record, we cannot find that the trial court abused its discretion in this matter. Ill The defendant finally claims that the trial court abused its discretion by failing to instruct the jury on the credibility of child witnesses.4 The defendant asserts — 96 — that such a charge was necessary because of the age of the witness at the time of the incident and at the time of the trial and because of the lack of corroborating evidence.5 We disagree. “The prevailing view . . . is that a trial judge retains discretion to determine whether the jury should receive a special instruction with respect to the credibility of a young witness, and, if so, the nature of that instruction.” (Internal quotation marks omitted.) State v. Osborn, 41 Conn. App. 287, 290, 676 A.2d 399 (1996). We are not persuaded that the trial court’s refusal to give the requested charge was unreasonable or an abuse of discretion. Contrary to the defendant’s suggestion, the witness’ age at the time of the incident and the trial does not undermine the reasonableness of the trial court’s decision. Rather, it is precisely “the difficulty in fixing an age when such an instruction would be necessary” that requires the discretion of the court. See State v. Angell, 237 Conn. 321, 330, 677 A.2d 912 (1996); State v. James, 211 Conn. 555, 568, 560 A.2d 426 (1989).6 During questioning by the court, Q demonstrated an understanding of the importance of being truthful and an ability to recall events several years in the past. On direct examination, she was cogent and coherent. We find nothing to suggest that the trial court’s refusal to charge on child credibility was unreasonable. — 97 — The defendant also alleges a lack of corroborative evidence, which required a special charge on the credibility of a child witness in this case. The presence or absence of corroborative evidence is not essential to a trial court’s decision on whether to give such a charge. Our Supreme Court has indicated that corroborative evidence is not required when a court does not give a charge on the credibility of a child witness. State v. Angell, supra, 237 Conn. 331 n.11. Because the trial court acted well within its discretion, we reject the defendant’s claim. The judgment is affirmed. In this opinion LANDAU, J., concurred. Footnotes [1] Practice Book § 876, now § 42-36, provides: “The judicial authority upon motion of the prosecuting authority or of the defendant shall cause any witness to be sequestered during the hearing on any issue or motion or during any part of the trial in which such witness is not testifying.” [2] Although the dissent cites additional statements in the transcript, those statements taken as a whole do not contradict the admission made by defense counsel. [3] “[Defense Counsel]: My concern, Your Honor, is also with the mother in this case. My understanding is that this individual here in the courtroom [Ms. Foran] has also posed as a guardian or consulted with her in some way. I know that she was in the courtroom when she testified last, and I would ask that she be instructed that her conversations with the mother of the alleged victim should also be—should not occur. “Ms. Foran: Your Honor, I’m not discussing this case with any of the family members, what happens in the courtroom. “The Court: Okay. All right, and you’re not going to discuss it with anybody who is a future witness. “Ms. Foran: That’s right, Your Honor.” [4] The defendant requested the following charge: “When considering the credibility of [a] child witness, you should remember that ‘in certain respects a young child is more apt to err than an older person; he or she is apt to be more amenable to any influence or suggestion which may be made to them by older persons; their imagination also often misleads them; its products may take on all the semblances of actual fact and they will relate them as such; the sanctity of the oath and the solemnity of legal proceedings may appeal to them less than to an adult.’ ” [5] Q was five years old at the time of the incident and eight years old at the time of the trial. [6] In State v. James, supra, 211 Conn. 569 n.7, the court cites one study as finding: “[I]f prompted, children as young as 3 years of age can recall past events quite well, although they will have difficulty under 10 years of age dating the events or attributing the appropriate motivation and intention to other people. Despite conventional wisdom, there is no evidence that children are more prone to lie than adults, and no evidence that they are more prone to confabulate or fabricate complex allegations.” (Internal quotation marks omitted.)