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STATE OF CONNECTICUT v. GIOVANNI P.*
(AC 35580)
Gruendel, Alvord and West, Js.
Argued October 15, 2014—officially released February 10, 2015
(Appeal from Superior Court, judicial district of New
Britain, D’Addabbo, J.)
Jon L. Schoenhorn, with whom, on the brief, was
Irene J. Kim, for the appellant (defendant).
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, was Brian Preleski, state’s
attorney, for the appellee (state).
Opinion
ALVORD, J. The defendant, Giovanni P., appeals from
the judgment of the trial court revoking his probation
and imposing an eighty month sentence of incarcera-
tion. On appeal, the defendant claims that (1) the court
improperly admitted a video recording of an interview
conducted with his son, F.P.; (2) the court improperly
admitted the testimony of Marcela C., who is the defen-
dant’s former wife and the mother of F.P., as to state-
ments made to her by F.P.; and (3) the state violated
his right to due process by suppressing exculpatory
information.1 We affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to the defendant’s appeal. On July 20, 1999, the
defendant pleaded guilty to one count of sexual assault
in the first degree in violation of General Statutes § 53a-
70 (a) (2) and one count of risk of injury to a child in
violation of General Statutes § 53-21 (a) (2). On October
15, 1999, the defendant was sentenced to a total effec-
tive sentence of twelve years incarceration, execution
suspended after five years, and ten years probation
with special conditions. The terms of the defendant’s
probation included the standard conditions that he not
violate any criminal law and that he report to his proba-
tion officer as directed. The relevant special conditions
of the defendant’s probation included that he register
as a sex offender and have no unsupervised contact
with minors.2 The defendant’s probation began on Octo-
ber 13, 2004.
In 2004, the defendant met and married Marcela C.,
and the couple had a son, F.P., in 2006. The defendant
was allowed supervised contact with his son after he
completed a family education program. The couple filed
for divorce in July, 2008. Marcela C. claimed that she
witnessed F.P. exhibiting sexualized behaviors some-
time in 2010, which she described as ‘‘humping’’ her
boyfriend and his brother. In February, 2011, after learn-
ing from a babysitter that F.P. had placed an object
between the buttocks of the babysitter’s child, Marcela
C. filed a complaint with the New Britain Police Depart-
ment. The defendant was arrested for sexual assault in
the first degree in violation of § 53a-70 (a) (2) and risk
of injury to a child in violation of § 53-21 (a) (2).3 The
defendant was subsequently charged with violating the
terms of his probation in violation of General Statutes
§ 53a-32. The warrant alleged three grounds for the
violation: (1) the commission of new crimes, (2) missing
probation appointments, and (3) having unsupervised
contact with F.P.
A violation of probation hearing was held.4 In its oral
decision, the court made three findings by a preponder-
ance of the evidence. First, it found that the defendant
missed scheduled probation appointments, thereby vio-
lating the standard condition of his probation requiring
him to report at the direction of his probation officer.5
Second, the court found that the defendant had unsu-
pervised contact with F.P., thus violating the special
condition of his probation that he not have unsuper-
vised contact with any minor.6 Third, the court found
that the defendant had engaged in criminal conduct,
thereby violating a standard condition of his probation
not to violate any laws.7
As a preliminary matter, we set forth general princi-
ples of law pertaining to revocation of probation pro-
ceedings. ‘‘A revocation of probation hearing has two
distinct components and two purposes. A factual deter-
mination by a trial court as to whether a probationer
has violated a condition of probation must first be made.
If a violation is found, a court must next determine
whether probation should be revoked because the bene-
ficial aspects of probation are no longer being served.’’
(Internal quotation marks omitted.) State v. Quinones,
92 Conn. App. 389, 391, 885 A.2d 227 (2005), cert. denied,
277 Conn. 904, 891 A.2d 4 (2006). ‘‘[A] probation revoca-
tion proceeding is civil in nature and, therefore, does
not require all of the procedural components associated
with an adversary criminal proceeding. . . . As such,
the state’s burden in probation revocation proceedings
is governed by the fair preponderance of the evidence
standard, which is the ordinary civil standard of proof.’’
(Citation omitted; internal quotation marks omitted.)
State v. Holmes, 70 Conn. App. 4, 8, 796 A.2d 561 (2002).
‘‘It is well settled that probation proceedings are infor-
mal and that strict rules of evidence do not apply to
them. . . . Hearsay evidence may be admitted in a pro-
bation revocation hearing if it is relevant, reliable and
probative.’’ (Citation omitted.) State v. Verdolini, 76
Conn. App. 466, 471, 819 A.2d 901 (2003).
I
The defendant first claims that the court erred in
admitting into evidence a video recording of an inter-
view conducted with F.P. by Erin Byrne, a clinical child
interview specialist at the Children’s Advocacy Center
(center), located at Saint Francis Hospital. The defen-
dant argues that the court erred in admitting the video
recording because (a) it did not satisfy the medical
treatment exception to the hearsay rule, and (b) the
admission of the video recording violated his due pro-
cess right to cross-examine F.P. We disagree with both
of these claims.
The following additional facts are relevant to the
resolution of the defendant’s claims. After witnessing
the ‘‘humping’’ behaviors sometime in 2010 and after
learning of the incident with the babysitter’s daughter
in February, 2011, Marcela C. contacted the police in
February, 2011. On February 28, 2011, F.P. was inter-
viewed by Byrne. The court recounted F.P.’s statements
made during the interview as follows: ‘‘F.P. states that
the father touches him with the finger, does it a lot of
times, father touches the butt, he goes inside, touches
it a lot of times with fingers. Father says, fun, fun. It
really happened. Not pretend. It makes his body feel
funny. F.P. touches father’s body. Father’s body wig-
gles. Touches father underneath clothes. Touches
father butt and then indicated no more talk about body
parts.’’ The interview was recorded. During the violation
of probation hearing, the state called Byrne as a witness
and also offered the video recording into evidence.8 The
defendant objected to the video, conducted a voir dire
of Byrne, and argued that admission of the video
recording was inadmissible hearsay and would violate
his right to confrontation. The state offered the video
recording under the medical treatment exception to
the prohibition on hearsay testimony. Alternatively, the
state argued that the video recording was admissible
under State v. Shakir, 130 Conn. App. 458, 465, 22 A.3d
1285, cert. denied, 302 Conn. 931, 28 A.3d 345 (2011).
After taking a recess until the next morning to review
the law and the arguments, the court admitted the video
recording into evidence. The court addressed the state’s
offer under the medical treatment exception, conclud-
ing that the interview was conducted for the purpose
of medical diagnosis and treatment, and therefore was
admissible under State v. Hickey, 135 Conn. App. 532,
551–52, 43 A.3d 701, cert. denied, 306 Conn. 901, 52
A.3d 728 (2012).
A
The defendant first claims evidentiary error, arguing
that the video recording did not satisfy the medical
treatment exception to the hearsay rule. We find no
error.
We first set forth our standard of review. ‘‘To the
extent that a court admits evidence relying on an inter-
pretation of the Connecticut Code of Evidence, our
review is plenary; but . . . where the court’s decision
was an application of the facts to the law, we afford
the trial court’s ruling deference and will only reverse
for an abuse of discretion.’’ State v. Juan V., 109 Conn.
App. 431, 446, 951 A.2d 651, cert. denied, 289 Conn. 931,
958 A.2d 161 (2008). Because the defendant’s eviden-
tiary claim turns on the purpose of the statements made
during the interview, which involves an application of
the facts to the law, the proper standard of review is
abuse of discretion. See State v. Miller, 121 Conn. App.
775, 781, 998 A.2d 170 (reviewing for abuse of discretion
admission under medical treatment exception of
licensed family therapist testimony recounting state-
ments of sexual abuse victim because purpose of vic-
tim’s interview determined on the basis of witness
credibility), cert. denied, 298 Conn. 902, 3 A.3d 72
(2010); State v. Donald M., 113 Conn. App. 63, 70, 966
A.2d 266 (‘‘because neither party contends that the
statements in the interview were not hearsay, we need
only determine whether the court properly concluded
that those statements fell within the medical treatment
exception to the hearsay rule’’), cert. denied, 291 Conn.
910, 969 A.2d 174 (2009); State v. Juan V., supra, 109
Conn. App. 446–47.
‘‘We review the trial court’s decision to admit [or
exclude] evidence, if premised on a correct view of the
law . . . for an abuse of discretion. . . . We will make
every reasonable presumption in favor of upholding the
trial court’s ruling, and only upset it for a manifest
abuse of discretion. . . . The trial court has wide dis-
cretion to determine the relevancy [and admissibility]
of evidence . . . . In order to establish reversible error
on an evidentiary impropriety . . . the defendant must
prove both an abuse of discretion and a harm that
resulted from such abuse.’’ (Internal quotation marks
omitted.) State v. Hickey, supra, 135 Conn. App. 543.
We next set forth the legal principles relating to the
medical treatment exception to the hearsay rule. ‘‘An
out-of-court statement offered to prove the truth of the
matter asserted is hearsay and is generally inadmissible
unless an exception to the general rule applies.’’ State
v. Hoffler, 55 Conn. App. 210, 215–16, 738 A.2d 1145
(order of probation admissible in probation revocation
proceeding under business records exception), cert.
denied, 251 Conn. 923, 742 A.2d 360 (1999). ‘‘Out-of-
court statements made by a patient to a physician may
be admitted into evidence if the declarant was seeking
medical diagnosis or treatment, and the statements are
reasonably pertinent to achieving these ends.’’ (Internal
quotation marks omitted.) State v. Cecil J., 99 Conn.
App. 274, 289, 913 A.2d 505 (2007), aff’d, 291 Conn. 813,
970 A.2d 710 (2009). ‘‘The term ‘medical’ encompasses
psychological as well as somatic illnesses and condi-
tions. . . . Furthermore, statements made by a sexual
assault complainant to a social worker may fall within
the exception if the social worker is found to have been
acting within the chain of medical care.’’ (Citations
omitted.) State v. Telford, 108 Conn. App. 435, 440, 948
A.2d 350, cert. denied, 289 Conn. 905, 957 A.2d 875
(2008). ‘‘In sexual abuse cases, statements made by the
complainant about the identity of the person causing
the injury may be found relevant to proper diagnosis and
treatment.’’ (Internal quotation marks omitted.) State v.
Hickey, supra, 135 Conn. App. 550.9
The defendant challenges the court’s determination
that the video recording was admissible because the
interview was conducted for medical purposes. The
court made several findings in support of its determina-
tion. First, the court found credible Byrne’s testimony
regarding her education and certification as a forensic
examiner. Second, the court credited Byrne’s testimony
that the interview she conducted was for medical pur-
poses, that the interview was ‘‘the first modality of
treatment that [a child coming to the center] would
receive,’’ and that she did recommend further treat-
ment. Third, the court further credited other aspects
of her testimony, noting ‘‘she has testified that [the
interview] was conducted in a manner that was based
on her training which indicated a minimization of sug-
gestiveness,’’ she did not coach F.P., and she was the
only person in the room with F.P.10
The defendant has not demonstrated that the court
abused its discretion in determining that the interview
was for medical purposes and, thus, admitting the video
recording into evidence.11 In reviewing the court’s deci-
sion, we note that the court relied in part on the testi-
mony of Byrne as to the purposes of the interview
and the manner in which it was conducted. In such
situations, we ‘‘yield to the court’s assessment’’ of the
witness’ credibility. State v. Miller, supra, 121 Conn.
App., 782–83 (deferring to trial court’s assessment of
credibility of family therapist testifying as to purpose
of interview she conducted). The defendant also argues
that the ‘‘hearsay exception for medical treatment and
diagnosis is based upon the speaker’s state of mind—
not that of the person asking the questions.’’ This court
has previously held that this requirement can be satis-
fied inferentially when the speaker is a juvenile. State
v. Juan V., supra, 109 Conn. App. 446–47. In fact, this
court has upheld the admission of statements made
during an interview of an approximately ten year old
child who ‘‘testified that she did not know why she was
taken to Saint Francis Hospital,’’ where the interview
was conducted. State v. Miller, supra, 777, 782 n.4, 783.
In light of our determination that the court properly
admitted the video recording under the medical treat-
ment exception, we are not required to address the
alternate ground for admission under State v. Shakir,
supra, 130 Conn. App. 465. Because the trial court also
found that the video recording was admissible under
Shakir, however, we briefly note our agreement. In
Shakir, this court upheld the trial court’s admission in
a violation of probation hearing of a video recording
of a forensic interview with a child disclosing sexual
abuse. Id., 461, 465. This court applied the standard
for admission of hearsay evidence in a revocation of
probation proceeding, determining whether the hearsay
evidence is ‘‘relevant, reliable and probative.’’ (Internal
quotation marks omitted.) Id., 464. This court explained:
‘‘The [trial] court had before it [the investigating detec-
tive’s] testimony that (1) the chain of custody for the
video was intact, (2) the minor complainant was not
influenced as to her answers and (3) as a matter of
procedure, the police department required questioning
to be performed by a licensed clinical social worker
trained to conduct such interviews. Moreover, because
strict admissibility rules do not apply . . . and the trier
of fact was the court, not a jury, it was within the
court’s discretion upon viewing the video to assess the
reliability of the evidence in light of the circumstances
reflected on the video.’’ (Citation omitted.) Id., 465.12 In
this instance, the court had before it equally sufficient
evidence that the hearsay was reliable and probative.
The court found the chain of custody of the video to
be intact. The court had before it Byrne’s testimony
that she did not coach F.P. and also her testimony
regarding her education and training. Therefore, the
trial court did not abuse its discretion in admitting the
video recording.
B
The defendant next claims that, by admitting the
video recording in place of F.P.’s testimony, he was
denied his right to cross-examine an adverse witness in
violation of his right to due process under the fourteenth
amendment to the United States constitution.13 Specifi-
cally, he claims that the state must ‘‘demonstrate ‘good
cause’ before [the court denies] a probationer the right
to cross-examine the complainant.’’ He argues there
was no good cause in the present case.
‘‘The due process clause of the fourteenth amend-
ment to the United States constitution requires that
certain minimum procedural safeguards be observed in
the process of revoking the conditional liberty created
by probation.’’ (Internal quotation marks omitted.) State
v. Faraday, 268 Conn. 174, 182, 842 A.2d 567 (2004).
The basic requirements include: ‘‘(a) written notice of
the claimed violations of [probation]; (b) disclosure to
the [probationer] of evidence against him; (c) opportu-
nity to be heard in person and to present witnesses and
documentary evidence; (d) the right to confront and
cross-examine adverse witnesses (unless the hearing
officer specifically finds good cause for not allowing
confrontation); (e) a ‘neutral and detached’ hearing
body . . . [the] members of which need not be judicial
officers or lawyers; and (f) a written statement by the
factfinders as to the evidence relied on and reasons for
revoking [probation].’’ Morrissey v. Brewer, 408 U.S.
471, 489, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972); see
also Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct.
1756, 36 L. Ed. 2d 656 (1973) (extending due process
requirements outlined in Morrissey for parole hearings
to probation hearings).
‘‘In considering whether the court had good cause
for not allowing confrontation or ‘that the interest of
justice [did] not require the witness to appear’; Fed. R.
Crim. P. 32.1 (b) (2) (C); the court should ‘balance, on
the one hand, the defendant’s interest in confronting the
declarant, against, on the other hand, the government’s
reasons for not producing the witness and the reliability
of the proffered hearsay.’ ’’ State v. Shakir, supra, 130
Conn. App. 468. Federal decisions have suggested, how-
ever, that the court is not required to conduct such
balancing in all circumstances. ‘‘[U]nder [United States
v. Jones, 299 F.3d 103, 113 (2d Cir. 2002)], the balancing
analysis need not be made where the proffered out-
of-court statement is admissible under an established
exception to the hearsay rule.’’ United States v.
Aspinall, 389 F.3d 332, 344 (2d Cir. 2004); see United
States v. Jones, supra, 113 (requirement that court con-
sider government’s grounds for not allowing confronta-
tion did not apply because statements were admissible
under excited utterance exception).
The defendant argues that his due process right to
cross-examine F.P. has been violated because, without
good cause, he was unable to cross-examine F.P. con-
cerning the hearsay statements that were admitted into
evidence through the video recording. The defendant
fails to acknowledge, however, that the cases he cites
in his brief illustrate that the admission of F.P.’s state-
ments under an established hearsay exception, as with
the medical treatment exception in the present case,
impacts the analysis as to whether good cause has been
established. In United States v. Taveras, 380 F.3d 532,
536 (1st Cir. 2004), the court stated that ‘‘[a]n important
element of the good cause analysis is the reliability of
the evidence that the Government seeks to introduce.’’
The first indicia of reliability the court considered was
whether the hearsay was admissible under the excited
utterance exception. See id., 537; see also United States
v. Carthen, 681 F.3d 94, 100 (2d Cir. 2012) (‘‘A proffered
hearsay statement that falls within an established
exception is of course admissible in a [violation of
supervised release] hearing. For statements that would
be inadmissible under the Federal Rules of Evidence,
a determination of ‘good cause’ requires the court to
balance ‘the defendant’s interest in confronting the
[declarant against] . . . the government’s reasons for
not producing the witness and the reliability of the
proffered hearsay.’ ’’ [Emphasis added.]), cert. denied,
U.S. , 133 S. Ct. 837, 184 L. Ed. 2d 664 (2013).
Because F.P.’s statements were admitted into evidence
under the medical treatment exception, the admission
of the video recording did not violate the defendant’s
right to due process under the fourteenth amendment
to the United States constitution.
II
The defendant next claims that the court erred in
admitting the testimony of Marcela C. as to statements
made to her by F.P. The following additional facts are
relevant to this claim. Marcela C. testified that F.P.
began to do inappropriate things in 2010, such as
‘‘humping my boyfriend and his brother.’’ When asked
whether she had talked to F.P. about these behaviors
and what he told her about them, the defendant
objected. The state argued that the testimony was
admissible as reliable hearsay under State v. Dollinger,
20 Conn. App. 530, 541, 568 A.2d 1058, cert. denied, 215
Conn. 805, 574 A.2d 220 (1990), because the statement
contained content that was beyond the ken of a child
of F.P.’s age. The defendant argued that (1) Marcela C.,
having been involved in an ‘‘ugly divorce,’’ had motive
to hurt the defendant, and (2) the statement of F.P. was
not reliable because it is hearsay and the defendant
might not later have an opportunity to question F.P.
about the statement if he does not testify. The court
took a brief recess to review Dollinger and then over-
ruled the defendant’s objection. Marcela C. then testi-
fied as to statements of F.P., that ‘‘he said that’s what
his father does to him,’’ and ‘‘he said my father’s pee
pee comes with mine . . . .’’
The defendant claims that the statements were unreli-
able hearsay, and that the court failed to ‘‘consider
the requirement that uncorroborated hearsay is only
admissible if there is good cause to excuse the presence
of the declarant.’’ He specifically argues that the court
abused its discretion by ‘‘[t]he . . . admission of this
testimony [that] was not corroborated by any physical
evidence, not repeated to an unbiased professional, and
the act itself was something that a four year old could
mimic after witnessing animals engage in such act
. . . .’’ We are not persuaded.
The central arguments as to whether the court abused
its discretion in admitting the statements are premised
on State v. Dollinger, supra, 20 Conn. App. 530. In that
case, a twenty-eight month old child exhibited sexual-
ized behaviors, leading the child’s mother to ask who
had showed her these behaviors and what else she had
learned. Id., 532–33. The child named her uncle as the
person who had showed her the behaviors. Id. This
court upheld the trial court’s admission of the testimony
of the child’s mother and her boyfriend as to the state-
ments made by the child to them under the residual
exception to the hearsay rule. Id., 542. In making its
determination of reliability and trustworthiness, this
court considered the following factors: (1) the child
demonstrated sexual behavior that was inappropriate
for her age, (2) there was no suggestion that the child
was coached or prompted, (3) the statement was cor-
roborated by physical evidence of injury, and (4) the
defendant had sufficient opportunity to cross-examine
the testifying witnesses as to any bias. Id., 541–42.
The trial court in the present case, in ruling on the
defendant’s objection, noted: ‘‘[T]he state’s position is
based in large part on the ruling in Dollinger. The court
has had an opportunity to review that case. First of all,
Dollinger was not a violation of probation hearing case;
it was a trial and this is a violation of probation hearing
which starts out with the ability for hearsay evidence to
be allowed. It is allowed if it can be found as probative,
reliable and there’s some . . . indicia of reliability.’’
We are mindful that ‘‘[i]t is well settled that the strict
rules of evidence do not apply to probation proceedings.
. . . It is just as well settled that hearsay evidence is
admissible in a probation revocation hearing when the
evidence is relevant, reliable and probative.’’14 (Cita-
tions omitted.) State v. Gumbs, 94 Conn. App. 747, 751,
894 A.2d 396, cert. denied, 278 Conn. 917, 899 A.2d 622
(2006). The trial court properly noted that the state-
ments by F.P. were probative in that they were in
response to his mother’s question about the conduct
he was exhibiting. The court also indicated that the
statements were reliable, in that the behavior he exhib-
ited was not behavior that would normally be exhibited
by a young child of F.P.’s age. The court further noted
that there was no evidence of any coaching or leading
questioning by Marcela C. and that the defendant would
have the opportunity to cross-examine Marcela C. as
to any bias.15 The court clearly articulated the proper
considerations in ruling on the defendant’s objection,
and we, thus, determine that the testimony was prop-
erly admitted.
The defendant challenges the trial court’s findings
that the statements were probative and reliable. The
defendant attempts to distinguish Dollinger by noting
that the child in Dollinger was determined incompetent
to testify and was, therefore, unavailable, and that there
was corroboration of the child’s statements. This court
has considered the application of the Dollinger factors16
to a civil case, noting: ‘‘Dollinger provides a list of
various factors that the court may consider, if relevant
to the particular case, in determining the admissibility
of third party statements under the residual exception
to the rule against hearsay. The list is neither determina-
tive nor rigid.’’ Doe v. Thames Valley Council for Com-
munity Action, Inc., 69 Conn. App. 850, 862–63, 797
A.2d 1146 (disagreeing with defendants that court was
required to take account of lack of corroborating physi-
cal evidence where alleged sexual assault involved
improper touching), cert. denied, 261 Conn. 906, 804
A.2d 212 (2002). This court also rejected the idea that
‘‘a balance sheet approach governs a court’s exercise
of its discretion. Admissibility in a civil case does not
turn on how many Dollinger factors a plaintiff can
establish.’’ Id., 859. To the extent that the defendant’s
argument is premised on the fact that the circumstances
in Dollinger provided a stronger basis for admitting the
hearsay statements, it must be taken into account that
a probation revocation proceeding is ‘‘not a criminal
proceeding but is instead more akin to a civil proceeding
. . . .’’ State v. Lantz, 120 Conn. App. 817, 822, 993
A.2d 1013 (2010). Therefore, the statements were only
required to satisfy the standard that the trial court cor-
rectly set out, namely, that the hearsay statements be
relevant, reliable, and probative. We, thus, determine
there was no error in the admission of Marcela C.’s tes-
timony.
III
The defendant lastly claims that the state violated
his due process rights by suppressing exculpatory infor-
mation. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.
Ct. 1194, 10 L. Ed. 2d 215 (1963). Specifically, he claims
that the state ‘‘fail[ed] to disclose to the defense prior
to or during the trial the impeachment evidence per-
taining to [the center] and Byrne, including the stated
law enforcement purposes of the forensic interview,
and by failing to correct the misleading testimony that
the interview was for medical purposes.’’ The defendant
further argues that ‘‘it was the obligation of the state
to disclose in a timely manner the fact that the [center]
is funded by federal law enforcement and [Department
of Children and Families] dollars . . . .’’17
The defendant concedes ‘‘that he did not separately
assert a claim of prosecutorial impropriety [at trial]
due to the withholding of Brady material.’’ He argues,
however, that ‘‘[a] claim that the state failed to disclose
exculpatory evidence in a timely fashion necessarily
requires no trial preservation, since Brady violations
normally arise after trial.’’ We disagree with the defen-
dant’s argument that his claim does not need to be
preserved in the trial court, and, as a result, does not
require an analysis under State v. Golding, 213 Conn.
233, 567 A.2d 823 (1989).18 See Skakel v. State, 295 Conn.
447, 521, 991 A.2d 414 (2010) (declining to address
Brady claims in part because trial court had not ruled
on them nor had defendant requested Golding review);
State v. Ouellette, 295 Conn. 173, 186–87, 989 A.2d 1048
(2010) (conducting Golding review of Brady claim that
was not made at trial). Because the defendant did not
raise his claim before the trial court, it must be reviewed
under Golding. We determine that the first two prongs
of Golding are satisfied, and we, thus, consider whether
his claim satisfies the third prong, which requires that
‘‘the alleged constitutional violation clearly exists and
clearly deprived the defendant of a fair trial . . . .’’
State v. Golding, supra, 240.
The constitutional violation claimed by the defendant
is the suppression of impeachment evidence by the
state. ‘‘In Brady v. Maryland, supra, 373 U.S. 87, the
United States Supreme Court held that the suppression
by the prosecution of evidence favorable to an accused
. . . violates due process where the evidence is mate-
rial either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.’’ (Internal
quotation marks omitted.) State v. Rivera, 152 Conn.
App. 248, 255, 96 A.3d 1285, cert. denied, 314 Conn. 934,
102 A.3d 85 (2014). ‘‘To establish a Brady violation,
the [defendant] must show that (1) the government
suppressed evidence, (2) the suppressed evidence was
favorable to the [defendant], and (3) it was material
[either to guilt or to punishment]. . . . Impeachment
evidence as well as exculpatory evidence falls within
Brady’s definition of evidence favorable to an accused.’’
(Citation omitted; internal quotation marks omitted.)
State v. Richard W., 115 Conn. App. 124, 137, 971 A.2d
810, cert. denied, 293 Conn. 917, 979 A.2d 493 (2009).
We determine that the defendant cannot satisfy Gold-
ing’s third prong. He has not established that the alleged
constitutional violation clearly exists because the
defendant failed to establish that any evidence was
suppressed. See State v. Collic, 55 Conn. App. 196, 207,
738 A.2d 1133 (1999). ‘‘[E]vidence is not considered to
have been suppressed within the meaning of the Brady
doctrine if the defendant or his attorney either knew,
or should have known, of the essential facts permitting
him to take advantage of [that] evidence. . . . Docu-
ments that are part of public records are not deemed
suppressed if defense counsel should know of them
and fails to obtain them because of lack of diligence
in his own investigation.’’ (Citations omitted; internal
quotation marks omitted.) United States v. Payne, 63
F.3d 1200, 1208 (2d Cir. 1995); see also State v. Simms,
201 Conn. 395, 407, 518 A.2d 35 (1986) (‘‘any information
bearing on . . . credibility as a witness was as avail-
able to the defendant as it was to the state, or could
have been discovered through reasonably diligent
research’’); State v. Richard W., supra, 115 Conn. App.
143 (‘‘federal actions were a matter of public record to
which the state and the defendant had equal access’’).
The evidence that the defendant claims was sup-
pressed includes: (1) material published on the center’s
website about the center, the interviews it conducts,
and its funding sources, and (2) information suggesting
collaboration between the center and the state’s attor-
ney’s office. This evidence was not suppressed within
the meaning of that term. With regard to the defendant’s
claim concerning suppression of information published
on the center’s website, we determine that the informa-
tion was as available to the defendant as it was to the
state; State v. Simms, supra, 201 Conn. 407; and was
either already known or could have been discovered
by the defendant. During arguments before the trial
court as to the admissibility of the video recording, the
defendant’s counsel claimed that ‘‘a large part of the
budget for [the center] is paid by the Chief State’s Attor-
ney’s Office,’’ but noted that he did not have any proof
at the time to support the claim.19 Moreover, on appeal,
the defendant cites a case in his brief in which this
court considered an argument as to whether the funding
sources of the same center impacted the determination
as to whether an interview conducted there was for
medical purposes. That argument proved unsuc-
cessful.20
The defendant’s second alleged impropriety regard-
ing his Brady claim is that the state argued for admis-
sion of the video recording under the medical treatment
exception, while ‘‘knowing that [the center] asserts that
its forensic interviews are conducted in collaboration
with [the state’s attorney’s] office under a statutorily-
mandated interdisciplinary investigation scheme.’’ The
defendant does not identify any particular evidence that
was suppressed, but rather argues that the impropriety
was in offering false or misleading testimony. In support
of this claim, the defendant merely cites to provisions
of our General Statutes, which he claims ‘‘inform [the]
analysis’’ as to the collaboration that he argues is evi-
dence of false testimony. Having reviewed the record
in light of the defendant’s arguments, we conclude that
the defendant has not established that the state offered
false or misleading testimony.21
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual assault and the crime of risk of injury to a child, we decline
to use the defendant’s full name or to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
1
The defendant also argues that the court abused its discretion in denying
his motion for a new hearing or to open the judgment. That claim fails for
a number of reasons. See footnote 17 of this opinion.
2
Other special conditions imposed included that he earn a GED, maintain
full-time employment, and have no contact with the victim or the victim’s
family.
3
The defendant filed with this court two motions to amplify the record
to include the proceedings following from these charges. Both of his motions
were dismissed. In his reply brief, the defendant again attempts to have
these proceedings considered, in this instance, by asking this court to take
judicial notice of a written memorandum of decision resulting from these
proceedings. Trial court decisions are not binding on this court. See Conway
v. Wilton, 238 Conn. 653, 673 n.12, 680 A.2d 242 (1996) (noting that decision
of Appellate Court was not binding on Supreme Court and ‘‘tak[ing] no
position as to its propriety’’). We therefore decline to consider that memoran-
dum of decision.
4
The state called three witnesses during its case-in-chief: Robert Moreau,
a probation officer who had supervised the defendant; Marcela C.; and Erin
Byrne, a clinical child interview specialist.
5
The court credited Moreau’s testimony that, over the course of the
defendant’s probation, he failed to report as directed on six occasions,
including February 6, 2007, March 2, 2007, February 21, 2008, October 29,
2008, September 22, 2009, and May 18, 2010. Moreau did not report the
defendant for violating the terms of his probation upon missing these
appointments, but when he reported the defendant after his arrest, he
included the missed appointments as a violation.
6
The court credited Marcela C.’s testimony that the defendant had been
alone when picking up F.P. for visits.
7
The court credited testimony of Marcela C. and statements made by F.P.
in the diagnostic interview in finding by a preponderance of the evidence
that the defendant had engaged in conduct that would satisfy the elements
of sexual assault in the first degree and risk of injury to a child.
8
The defendant previously had filed a motion in limine to exclude the
video recording. The defendant argued that the evidence should be excluded
as violative of the hearsay rule and the due process clause. The court heard
brief argument from the defendant’s counsel and stated that it would hear
from counsel again on the issue when the state offered the video recording.
9
This court in State v. Hickey, supra, 135 Conn. App. 536, 549, upheld
the admission of testimony of a witness trained as a pediatric nurse-prac-
titioner and forensic medical examiner as to statements made to her by the
victim. The defendant argues that the trial court’s reliance on Hickey was
erroneous. Specifically, he argues that ‘‘[b]y conflating a forensic medical
examiner’s testimony with a forensic interviewer’s efforts to question a
child, the trial court erased any distinction between these two very different
procedures.’’ His argument as to a purported erroneous reliance on Hickey
is irrelevant because there is sufficient case law to support the admission
of a video recording of an interview conducted by the type of interviewer
in this case. See State v. Donald M., supra, 113 Conn. App. 68, 69, 71 (portions
of video recording of interview conducted by clinical child interview special-
ist admissible under medical treatment exception); State v. Juan V., supra,
109 Conn. App. 445 and n.10, 447 (entire video recording of interview con-
ducted by clinical child interview specialist admissible under medical treat-
ment exception).
10
An investigative social worker from the Department of Children and
Families was present behind a two-way mirror. No police were present.
11
The defendant claims that this court’s decision in State v. Carey, 30
Conn. App. 346, 355, 620 A.2d 201 (1993), rev’d on other grounds, 228 Conn.
487, 636 A.2d 840 (1994), is dispositive of his claim that the video recording
was improperly admitted. In Carey, this court reversed the decision of the
trial court revoking the probation of a defendant because the only evidence
presented at the hearing, two hearsay police reports, was insufficient to
establish a probation violation. Id., 355–56. This court noted that ‘‘[p]ursuant
to [State v.] White, [169 Conn. 223, 363 A.2d 143, cert. denied, 423 U.S. 1025,
96 S. Ct. 469, 46 L. Ed. 2d 399 (1975)], hearsay testimony is admissible only
if it is supported by other evidence.’’ Id., 354. The reports in Carey were
not offered or admitted as business records, and this court noted that ‘‘[t]he
reports . . . do not qualify for admission as evidence under any established
exception to the hearsay rule.’’ Id., 351.
We do not need to reach the defendant’s claims under Carey that, because
the hearsay evidence was unsupported, it should have been excluded,
because we conclude that the court properly admitted the video recording
under the medical treatment exception. See State v. Huckabee, 54 Conn.
App. 758, 763, 738 A.2d 681 (1999) (declining to reach issue as to whether
attendance records were admissible under looser standards of probation
revocation hearings which allow admissibility of hearsay evidence if reliable
and not unsupported because records were properly admitted under busi-
ness record exception).
12
Recognizing that the trial court did not have the benefit of our Supreme
Court’s recent decision in State v. Carrion, 313 Conn. 823, 839–40, 100 A.3d
361 (2014), we nevertheless note that it provided: ‘‘Courts have identified
the following nonexclusive factors, among others, as particularly salient in
determining the threshold reliability of a child’s disclosure of sexual abuse
during a forensic interview: (1) the child’s age; (2) the child’s actions or
use of words outside the normal behavior or lexicon of a child of a similar
age; (3) the spontaneity of the child’s statements; (4) the extent to which
the interviewer investigated alternative sources of the child’s familiarity
with sex; (5) the interviewer’s use of leading or suggestive questions; (6)
the nature of the abuse or assault; (7) indications that the child has been
coached; and (8) the presence of a parent or authority figure.’’ Relevant to
these considerations are the following trial court findings: (1) the description
of the defendant’s conduct by F.P. was beyond the knowledge of a four to
five year old boy, (2) Byrne testified that the interview was conducted in
such a way that minimized suggestiveness, (3) Byrne testified that she did
not coach F.P., and (4) Byrne was the only person in the room with F.P.,
except for an investigative social worker behind a two-way mirror. While
a number of these findings were made prior to viewing the video, the court
expressly noted that it ‘‘can always revisit it’’ after it viewed the video if
there was any appearance of unreliability. In the court’s oral decision finding
that the defendant had violated conditions of his probation, which was
delivered after the video had been viewed, the court referenced its earlier
ruling on the video recording and incorporated it into its decision.
13
The defendant does not argue that there was a violation of his constitu-
tional rights under the confrontation clause of the sixth amendment to the
United States constitution, as shown by the following statement in his reply
brief: ‘‘The state’s detour into confrontation clause analysis and its relevance
to probation violation hearings . . . has nothing to do with the defendant’s
arguments.’’ The defendant noted that he ‘‘expressly relied upon the due
process clause of the fourteenth amendment and the well-established due
process right to confront witnesses at such hearings.’’
14
The defendant argues that ‘‘the court failed to consider the requirement
that uncorroborated hearsay is only admissible if there is good cause to
excuse the presence of the declarant.’’ A review of the transcript reveals that
the defendant’s objection to the admission of F.P.’s statements to Marcela C.
included two arguments: (1) the witness had motive to hurt the defendant
as a result of their divorce and (2) the statements were not reliable. When
the trial court ruled on the objection, it addressed the defendant’s objection
as to the credibility of the witness and the reliability of the hearsay state-
ments. Thus, the defendant’s claim on appeal that the admission of Marcela
C.’s testimony denied him the right to confront and cross-examine witnesses
was not presented to the trial court. We further note that, under Golding,
the defendant’s claim cannot be reviewed because it fails to satisfy the first
prong, which requires that ‘‘the record is adequate to review the alleged
claim of error.’’ State v. Golding, 213 Conn. 233, 239, 567 A.2d 823 (1989).
Because the defendant failed to object to the admission of the testimony
as a violation of his due process right to cross-examine an adverse witness,
the court had no occasion to consider whether there was good cause not
to allow confrontation. Therefore, the record is inadequate for review of
that claim.
15
Indeed, the court indicated in its oral decision that it ‘‘has considered
the testimony of [Marcela C. and] has also considered the credibility . . .
challenges to [Marcela C.] by the defense.’’
16
In Dollinger, the court considered ‘‘the age of the child, the nature of
the assault, the presence of physical evidence of that assault, the relationship
of the child to the defendant, the spontaneity of the statement, the reliability
of the statements themselves and the reliability of the testifying witness.’’
State v. Dollinger, supra, 20 Conn. App. 541.
17
The defendant additionally claims that the court abused its discretion
in denying his motion for a new hearing or to open the judgment for the
purposes of impeaching Byrne as to the center’s funding sources and pur-
pose. Assuming, arguendo, that the procedures available to a criminal defen-
dant to obtain a new trial under Practice Book §§ 42-53 and 42-55 are
available to a defendant in a probation revocation proceeding, the defen-
dant’s claim still fails for a number of reasons. First, his claim is, in essence,
that he was unable to question Byrne on the information that he obtained
from the center’s website subsequent to the close of the probation revocation
hearing. This is a claim based on newly discovered evidence, which cannot
be filed pursuant to § 42-53. State v. Santaniello, 96 Conn. App. 646, 672,
902 A.2d 1 (‘‘A motion for a new trial under Practice Book [§ 42-53] is limited
to trial errors, and cannot be based upon newly discovered evidence. . . .
The defendant must bring a petition under [§ 42–55] if he wishes to seek a
new trial based upon newly discovered evidence.’’ [Internal quotation marks
omitted.]), cert. denied, 280 Conn. 920, 908 A.2d 545 (2006); see State v.
Gonzalez, 106 Conn. App. 238, 260, 941 A.2d 989 (trial court lacked authority
to consider defendant’s motion for new trial on basis of newly discovered
evidence), cert. denied, 287 Conn. 903, 947 A.2d 343 (2008). Second, even
if the defendant had properly brought a petition for a new trial under § 42-
55, he would not be able to satisfy the four prong test, the first prong of
which requires that ‘‘the proffered evidence is newly discovered, such that
it could not have been discovered earlier by the exercise of due diligence
. . . .’’ (Emphasis omitted; internal quotation marks omitted.) Williams v.
Commissioner of Correction, 100 Conn. App. 94, 100, 917 A.2d 555, cert.
denied, 282 Conn. 914, 924 A.2d 140 (2007). Here, the evidence that the
defendant sought to use to impeach Byrne was found on the center’s website,
and therefore ‘‘could have been known with reasonable diligence . . . .’’
(Internal quotation marks omitted.) Id., 101. Third, ‘‘[n]ew trials are not
granted upon newly discovered evidence which discredits a witness unless
the evidence is so vital to the issues and so strong and convincing that a
new trial would probably produce a different result.’’ (Internal quotation
marks omitted.) State v. Newton, 59 Conn. App. 507, 512, 757 A.2d 1140,
cert. denied, 254 Conn. 936, 761 A.2d 764 (2000). Accordingly, the defendant’s
claim fails.
18
Under State v. Golding, supra, 213 Conn. 239–40, ‘‘a defendant can
prevail on a claim of constitutional error not preserved at trial only if all
of the following conditions are met: (1) the record is adequate to review
the alleged claim of error; (2) the claim is of constitutional magnitude
alleging the violation of a fundamental right; (3) the alleged constitutional
violation clearly exists and clearly deprived the defendant of a fair trial; and
(4) if subject to harmless error analysis, the state has failed to demonstrate
harmlessness of the alleged constitutional violation beyond a reasonable
doubt.’’ (Emphasis in original; footnote omitted.).
19
The defendant’s counsel stated: ‘‘Your Honor, it’s my understanding, I
don’t have any proof today, but it’s my understanding that a large part of
the budget for the Saint Francis facility that does this is paid by the Chief
State’s Attorney’s Office. I do not see that therefore being medically related.
It’s an investigation tool; that’s what it is.’’
20
In State v. Juan V., supra, 109 Conn. App. 447 n.11, this court noted:
‘‘The defendant argues that because some of the funding for the advocacy
center came from the office of the chief state’s attorney, the mission of the
advocacy center is more closely aligned with the goals of law enforcement
than with the goals of medical treatment. Although the medical treatment
exception explicitly requires that the interviewee have the purpose of
obtaining medical treatment, we also believe it is implicit in this rule that
the interviewer must also have the purpose of providing medical treatment.
In this instance, regardless of whatever other purposes this interview proto-
col may have served, it met the parameters of the exception; [the victim]
went to the advocacy center for medical treatment, and [a clinical child
interview specialist] interviewed her to assess her health care needs.’’
21
The defendant relies on Adams v. Commissioner of Correction, 309
Conn. 359, 371, 71 A.3d 512 (2013), in which our Supreme Court explained:
‘‘When . . . a prosecutor obtains a conviction with evidence that he or she
knows or should know to be false, the materiality standard is significantly
more favorable to the defendant. [A] conviction obtained by the knowing
use of perjured testimony is fundamentally unfair, and must be set aside if
there is any reasonable likelihood that the false testimony could have
affected the judgment of the jury.’’ (Emphasis added; internal quotation
marks omitted.) In ruling on the defendant’s motion for a new hearing, the
court, after hearing the defendant’s arguments that the center is ‘‘an advocacy
center [and] its purpose is to investigate these claims . . . analogous to
the police,’’ reiterated that it had found Byrne’s testimony as to the purpose
for conducting the interview credible. Thus, we will not conclude that the
state offered false or misleading testimony.