State v. Slimskey (dissenting)
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****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the officially released date appearing in the opinion. In no event will any such motions be accepted before the officially released date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** VERTEFEUILLE, J., with whom SULLIVAN, C. J., joins, dissenting. I respectfully disagree with the majority s application to the facts in this case of our established test to determine whether a defendant should be granted access to the psychological and/or psychiatric records of a witness. Particularly, I disagree with the majority s conclusion that certain portions of reports compiled by James C. Black, a psychiatrist, and Cynthia Rutledge, the victim s school psychologist, relate directly to the victim s ability or capacity to comprehend, know and correctly relate the truth and therefore should have been disclosed to the defendant. Although I do agree that one comment from Rutledge s report does relate to the victim s ability to comprehend, know and correctly relate the truth, I conclude that the trial court s failure to allow the defendant access to that comment was harmless. Because I would affirm the Appellate Court s judgment affirming the trial court s judgment of conviction, I therefore must dissent. In State v. Storlazzi, 191 Conn. 453, 459, 464 A.2d 829 (1983), this court stated that [t]he linchpin of the determination of the defendant s access to the records is whether they sufficiently disclose material especially probative of the ability to comprehend, know and cor- rectly relate the truth . . . so as to justify breach of their confidentiality and disclosing them to the defendant in order to protect his right of confrontation. Access to records bearing on the mental unsoundness of a witness (i.e., relating to a trait importing in itself a defective power of observation, recollection or communication), at or around the time of trial or of the occurrence about which he is to testify . . . should be granted to the defendant. (Citations omitted; emphasis added; internal quotation marks omitted.) I agree that the statement in Rutledge s report that the victim is prone to distort his perception of reality with paranoid and persecutorial ideas, is especially probative of the victim s ability to comprehend, know and correctly relate the truth and should have been disclosed to the defendant. I disagree, however, with the majority when it reaches the same conclusion with regard to comments found in Black s report that disclose that: (1) the victim had concocted a story about being victimized ; (2) the victim had lied that a gun and ammunition, which he had brought into school and subsequently was suspended for, belonged to another student and that he had been framed; and (3) the victim had lied to exculpate himself from numerous incidents of sexually inappropriate behavior. With regard to these comments, I conclude that the trial court properly withheld these portions of the records from the defendant because they are not especially probative of the victim s ability or capacity to comprehend, know and correctly relate the truth. See State v. Howard, 221 Conn. 447, 458, 604 A.2d 1294 (1992); State v. McMurray, 217 Conn. 243, 258 59, 585 A.2d 677 (1991). Rather, they describe incidents in the past when the victim had lied. I agree with the majority that these comments demonstrate that when the victim, a teenager, had put himself in a situation where he would be reprimanded or punished, he would lie to exonerate himself. Telling lies to exonerate oneself, however, is not an indication of an inability to comprehend, know and correctly relate the truth. Unfortunately, adolescents do sometimes tell lies in order to exonerate themselves. None of these statements taken from the victim s confidential records bear on the victim s mental unsoundness. See State v. Storlazzi, supra, 191 Conn. 459. They do not relate to a trait importing in itself a defective power of observation, recollection or communication . . . . (Internal quotation marks omitted.) Id. I therefore would conclude that, apart from the comment taken from Rutledge s report, the trial court properly denied the defendant access to the victim s psychiatric and psychological records. I next consider whether the trial court s improper withholding of the single comment from Rutledge s report requires reversal of the defendant s convictions for risk of injury to a child and sexual assault in the second degree. I agree with the majority that the state . . . must prove that the trial court s decision denying the defendant access to portions of the reports was harmless beyond a reasonable doubt. Whether such error is harmless in a particular case depends upon a number of factors, such as the importance of the witness testimony in the prosecution s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of crossexamination otherwise permitted, and, of course, the overall strength of the prosecution s case. . . . Most importantly, we must examine the impact of the evidence on the trier of fact and the result of the trial. . . . If the evidence may have had a tendency to influence the judgment of the jury, it cannot be considered harmless. (Citations omitted; internal quotation marks omitted.) State v. Colton, 227 Conn. 231, 254, 630 A.2d 577 (1993), on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996). I recognize, as the majority points out and the state concedes, that the testimony of the victim concerning the alleged sexual assault was not directly corroborated by other testimony. I conclude, however, that the overall strength of the state s case and the extent of the cross-examination of the victim that was permitted by the trial court would have rendered the withholding of Rutledge s single statement harmless beyond a reasonable doubt. In his statements to the police and during his testimony at trial, the victim, although initially hesitant, gave a detailed account of the alleged sexual abuse by the defendant. The victim also correctly described the defendant s home, including the defendant s bedroom area, demonstrating that he had spent a considerable amount of time there. The victim also demonstrated an accurate memory of the defendant s pornography collection, including pornographic videotapes and magazines. In particular, the victim described videotapes depicting bestiality and children having sex with other children. He also identified the videotape entitled the Dirty Dozen and described the contents of the film. The victim also had intimate knowledge of the defendant s bizarre hair fetish and gave gruesome details about what the defendant had done with the victim s hair. The victim also described with particularity the tools the defendant had used to pull the victim s hair out. Although there were no eyewitnesses to the alleged incidents of fellatio, to a large extent, the victim s testimony was corroborated on material points by other evidence. The police, on the basis of the victim s statement, had executed a warrant to search the defendant s home. They found, among other things, several pornographic videotapes, including child pornography videotapes and the Dirty Dozen videotape, pornographic magazines, one of which was found on a table in the defendant s living room, a bag nearly one-half filled with human hair, and haircutting tools. Furthermore, Bruce Freedman, a clinical psychologist, explained that the victim s reluctance to give the police a statement and the details concerning the sexual abuse ultimately provided by the victim in his statements to the police were consistent with children who have been abused sexually. The prosecution s case was strong. Moreover, I am convinced that nothing in the [psychiatric] records would have added weight to the defendant s thorough cross-examination of [the victim] . . . . State v. Howard, supra, 221 Conn. 458; State v. Crosswell, 223 Conn. 243, 270, 612 A.2d 1174 (1992). On the basis of my review of the record, the defendant thoroughly cross-examined the victim, eliciting various inconsistencies between the statements the victim had given to the police and his testimony during the trial. The defendant also elicited testimony from the victim that could have led the jury to believe that the victim s father had pushed the victim to fabricate this story against the defendant so that the victim s father could bring a civil action against the defendant. The victim s father eventually did bring a civil action against the defendant, which was pending at the time of the criminal trial, and the defendant elicited this information from the victim. The defendant s cross-examination also showed contradictions between the victim s testimony and certain other evidence, reflecting on his truthfulness and his memory of the alleged events. Finally, the defendant elicited from the victim testimony concerning various criminal charges that were pending against the victim in other towns, further depicting the victim as a very troubled teenager. I do not believe that Rutledge s statement that the victim was prone to distort his perception of reality with paranoid and persecutorial ideas would have influenced the judgment of the jury. On the basis of the overall strength of the state s case and the leeway the trial court afforded the defendant during his cross-examination of the victim, I conclude that the trial court s decision denying the defendant access to Rutledge s single statement concerning the victim s propensity to distort his perception of reality with paranoid and persecutorial ideas was harmless. I would affirm the defendant s conviction and, therefore, I respectfully dissent
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