State v. Ayala , 183 Conn. App. 590 ( 2018 )

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STATE OF CONNECTICUT v. WALTER BOBBY AYALA
(AC 39171)
Lavine, Moll and Bishop, Js.
Syllabus
Convicted of the crimes of sexual assault in the fourth degree and of risk
of injury to a child in connection with his alleged sexual abuse of the
twelve year old victim, the defendant appealed to this court. Before
trial, the trial court had granted the defendant’s motion to obtain the
victim’s mental health records. The court conducted an in camera review
and found that portions of the record were probative of the victim’s
mental capacity to know or correctly relate the truth and had the poten-
tial to show motive or bias. As a result, the court disclosed redacted
copies of the records to the defendant. On appeal, the defendant claimed,
for the first time, that the trial court abused its discretion in failing to
disclose the redacted portions of the victim’s mental health records,
thereby violating his constitutional right to confrontation. Held that the
trial court did not abuse its discretion in its selection of records to
disclose and those portions to withhold from the defendant following
its in camera review, as the records provided to the defendant secured
his constitutional right to confront the victim at trial; that court properly
disclosed all materials especially probative of the witness’ capacity to
relate the truth or to observe, recollect, and narrate relevant occur-
rences, and the defendant was able to utilize pertinent details disclosed
in the records to thoroughly cross-examine and to question the victim
about her past self-injurious behavior and her resultant hospitalization,
her depression, the contents of her journal, her strained relationship
with her mother, her long held desire to live in New York with her
father, her dislike of the defendant, and her knowledge of the fact that
her neighbor’s niece had made false sexual assault allegations in an
attempt to extricate herself from her living situation, which demon-
strated that the defendant was able to fully and effectively cross-examine
the victim about her possible motives, biases, and capacity to relate
the truth.
Argued May 16—officially released July 24, 2018
Procedural History
Substitute information charging the defendant with
two counts of the crime of sexual assault in the fourth
degree and with one count of the crime of risk of injury
to a child, brought to the Superior Court in the judicial
district of New Britain, geographical area number fif-
teen, and tried to the jury before the court, Keegan, J.;
verdict and judgment of guilty, from which the defen-
dant appealed to this court. Affirmed.
Donald F. Meehan, with whom, on the brief, was
Walter C. Bansley IV, for the appellant (defendant).
Margaret Gaffney Radionovas, senior assistant
state’s attorney, with whom, on the brief, were Brian
Preleski, state’s attorney, and Elizabeth M. Moseley,
assistant state’s attorney, for the appellee (state).
Opinion
BISHOP, J. The defendant, Walter Bobby Ayala,
appeals from the judgment of conviction, rendered fol-
lowing a jury trial, of two counts of sexual assault in
the fourth degree in violation of General Statutes § 53a-
73a (a) (1) (A), and one count of risk of injury to a
child in violation of General Statutes § 53-21 (a) (2). On
appeal, the defendant claims that the trial court abused
its discretion by failing to disclose redacted portions
of the victim’s mental health records following the
court’s in camera review of the records pursuant to
State v. Esposito, 192 Conn. 166, 471 A.2d 949 (1984),
thereby violating his sixth and fourteenth amendment
right to confrontation. We affirm the judgment of the
trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to this
appeal. The defendant resided with the then twelve year
old victim,1 the victim’s mother, and the victim’s two
younger siblings in an apartment in New Britain. The
defendant was in a relationship with the victim’s
mother. During one unspecified night in March, 2011,
the defendant came into the victim’s room while she
was sleeping on two separate occasions. During one
encounter, he touched her buttocks, and during the
other encounter, he touched the victim’s vagina and
attempted to pull down her pajama pants.2
The incident was not reported to the police until
April, 2012, when the victim disclosed the abuse to her
father and his fiance´ while visiting them in New York.
At this time, the victim spoke to a New Britain police
officer over the phone. The victim’s allegations
prompted the New York Administration for Children’s
Services and the Connecticut Department of Children
and Families (department) to conduct an investigation.
Members of the department interviewed the victim as
part of its investigation. The victim also received treat-
ment at the Wheeler Clinic in Connecticut.
The defendant was subsequently arrested and
charged with two counts of sexual assault in the fourth
degree in violation of § 53a-73a (a) (1) (A) and one
count of risk of injury to a child in violation of § 53-21
(a) (2). Before trial, the defendant filed a motion to
obtain records from the department and the Wheeler
Clinic pertaining to the victim’s mental health pursuant
to State v. Esposito, supra, 192 Conn. 166, and State v.
Bruno, 236 Conn. 514, 673 A.2d 1117 (1996), arguing
that the records were probative of the victim’s mental
capacity to know or correctly relate the truth and had
the potential to show motive or bias. The court granted
the motion and, after the victim consented, the court
conducted an in camera review of the victim’s depart-
ment file and her Wheeler Clinic file. The court found
that portions of the records were probative of the vic-
tim’s mental capacity to know or correctly relate the
truth and had the potential to show motive or bias. As
a result, the court disclosed redacted copies of the
records to the defendant. At trial, the jury returned a
verdict of guilty as to all charges. The court subse-
quently sentenced the defendant to a total effective
sentence of eight years of incarceration and twelve
years of special parole. This appeal followed. Additional
facts will be set forth as necessary.
We first address whether the defendant’s claim that
the court violated his right to confrontation by failing
to disclose redacted portions of the victim’s mental
health records following its in camera review of those
records is reviewable. We note, at the outset, that the
defendant failed to preserve this issue at trial. Our
Supreme Court has indicated that, when a court has
conducted an in camera review and has disclosed only
a portion of the material sought, it is necessary for the
defendant to object to any of the court’s redactions at
the trial stage before raising the claim on appeal. See
State v. Cecil J., 291 Conn. 813, 829 n.12, 970 A.2d 710(2009) (noting that it was ‘‘incumbent’’ on defendant to
object to trial court’s redactions at trial); State v. Harris,
227 Conn. 751, 761, 631 A.2d 309 (1993) (defendant
objected to court’s limited disclosure of personnel file
after in camera review and challenged action on
appeal).
In his brief, the defendant asserts that ‘‘to the degree
this claim is not preserved,’’ he is entitled to review
under State v. Golding, 213 Conn. 233, 567 A.2d 823(1989), as modified by In re Yasiel R., 317 Conn. 773,
781, 120 A.3d 1188 (2015). Under Golding, ‘‘a defendant
can prevail on a claim of constitutional error not pre-
served 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 magni-
tude alleging the violation of a fundamental right; (3)
the alleged constitutional violation . . . exists and
. . . 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. In the absence of
any one of these conditions, the defendant’s claim will
fail.’’ (Emphasis in original; footnote omitted.) State
v. Golding, supra, 239–40. ‘‘The first two steps in the
Golding analysis address the reviewability of the claim,
while the last two steps involve the merits of the claim.’’
(Internal quotation marks omitted.) State v. Britton,
283 Conn. 598, 616, 929 A.2d 312 (2007).
Golding’s first prong is satisfied because the defen-
dant has provided us with an adequate record to review
his constitutional claim. Golding’s second prong is also
satisfied because an erroneous restriction on the defen-
dant’s access to a witness’ confidential records ‘‘impli-
cates the defendant’s constitutional right to impeach
and discredit state witnesses.’’ (Internal quotation
marks omitted.) State v. Bruno, supra, 236 Conn. 532.
Accordingly, the defendant’s claim is reviewable. His
claim fails, however, under Golding’s third prong.
We set forth the applicable principles necessary to
review the defendant’s claim on the merits. ‘‘The need
to balance a witness’ statutory privilege to keep psychi-
atric records confidential against a defendant’s rights
under the confrontation clause is well recognized.’’
State v. Slimskey, 257 Conn. 842, 855, 779 A.2d 723(2001). Our Supreme Court has set forth the procedure
used to strike this balance. ‘‘If . . . the claimed
impeaching information is privileged there must be a
showing that there is reasonable ground to believe that
the failure to produce the information is likely to impair
the defendant’s right of confrontation such that the
witness’ direct testimony should be stricken. Upon such
a showing the court may then afford the state an oppor-
tunity to secure the consent of the witness for the court
to conduct an in camera inspection of the claimed infor-
mation and, if necessary, to turn over to the defendant
any relevant material for the purposes of cross-exami-
nation. If the defendant does make such showing and
such consent is not forthcoming then the court may be
obliged to strike the testimony of the witness. If the
consent is limited to an in camera inspection and such
inspection, in the opinion of the trial judge, does not
disclose relevant material then the resealed record is
to be made available for inspection on appellate review.
If the in camera inspection does reveal relevant material
then the witness should be given an opportunity to
decide whether to consent to release of such material to
the defendant or to face having her testimony stricken
in the event of refusal.’’ State v. Esposito, supra, 192
Conn. 179–80.
‘‘Upon inspecting the records in camera, the trial
court must determine whether the records are espe-
cially probative of the witness’ capacity to relate the
truth or to observe, recollect and narrate relevant occur-
rences. . . . If the court determines that the records
are probative, the state must obtain the witness’ further
waiver of his privilege concerning the relevant portions
of the records for release to the defendant, or have the
witness’ testimony stricken. . . . Once the trial court
has made its inspection, the court’s determination of a
defendant’s access to the witness’ records lies in the
court’s sound discretion, which we will not disturb
unless abused.’’ (Internal quotation marks omitted.)
State v. McMurray, 217 Conn. 243, 257–58, 585 A.2d
677 (1991). This court has also recognized that
‘‘[a]lthough the constitutional right of cross-examina-
tion guarantees the opportunity for effective cross-
examination . . . that does not mean cross-examina-
tion that is effective in whatever way, and to whatever
extent, the defense might wish. . . . That right does
not include, in a word, unrestricted cross-examination.’’
(Internal quotation marks omitted.) State v. Calderon,
82 Conn. App. 315, 330, 844 A.2d 866 (2004), cert. denied,
270 Conn. 905, 853 A.2d 523 (2004), cert. denied, 543
U.S. 982, 125 S. Ct. 487, 160 L. Ed. 2d 361 (2004). Accord-
ingly, we review the trial court record, including the
records that were disclosed and those portions that
were not provided to the defendant, to determine
whether the court abused its discretion in limiting the
defendant’s access to the victim’s mental health
records.
Pursuant to the teaching of State v. Esposito, supra,
192 Conn. 166, this court conducted a review of the
undisclosed portions of the records at issue. On the
basis of that review, we conclude that the court did not
abuse its discretion in its selection of records to disclose
and those portions to withhold from the defendant.
We conclude, as well, that the records provided to the
defendant secured his constitutional right to confront
the victim at trial. In sum, the court properly disclosed
all materials especially probative of the witness’ capac-
ity to relate the truth or to observe, recollect, and nar-
rate relevant occurrences. As a result, the defendant
was able to utilize pertinent details disclosed in the
records to thoroughly cross-examine the victim. During
the trial, the defendant was able to question the victim
about her past self-injurious behavior and her resultant
hospitalization, her depression, the contents of her jour-
nal, her strained relationship with her mother, her long
held desire to live in New York with her father, her
dislike of the defendant, and her knowledge of the fact
that her neighbor’s niece had made false sexual assault
allegations in an attempt to extricate herself from her
living situation. The defendant was thus able to fully and
effectively cross-examine the victim about her possible
motives, biases, and capacity to relate the truth.
The judgment is affirmed.
In this opinion the other judges concurred.
1
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 identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
2
At trial, the victim testified that she was unsure of the order in which
these events occurred.