Court: Connecticut Appellate Court; April 29, 2003; Connecticut; State Appellate Court
Daniel Cameiro appeals his conviction for first-degree sexual assault, risk of injury to a child, and witness intimidation. He asserts that the trial court violated his due process rights by not striking the testimony of three expert witnesses who supported the victim's credibility and that the court abused its discretion by allowing the state to amend its information post-voir dire. The jury could have reasonably found that the defendant, related to the victim's mother, assaulted the victim on the couch of a first-floor room in their building, threatening him with a knife during the act. The victim disclosed the assault to a stepsister and hospital staff years later, triggering reports to child protective services and police. Attempts to contact the defendant in Texas were unsuccessful, but he later threatened the victim and his mother during phone calls. The court declines to review the defendant's due process claim, noting it was unpreserved at trial and seeks review under established legal doctrines. The judgment of the trial court is affirmed.
Alok Bhargava, a pediatric neurologist, testified as an expert on pediatric memory functions, asserting the victim's reliability regarding an alleged sexual assault but was not asked about the possibility of fabrication. Rosalie Guest, an expert in post-traumatic stress disorder, affirmed on cross-examination that she believed the victim had been assaulted, prompting a curative instruction from the court. Kimberly Massey, a lay counselor, also testified that the victim's disclosures were not manipulative, and the defendant did not object to any of this testimony during the trial. Consequently, the defendant's claims are raised for the first time on appeal without prior preservation through proper objection. To succeed under the Golding doctrine, a defendant must demonstrate an adequate record, a constitutional claim of fundamental right violation, clear existence of the violation, and failure by the state to prove harmlessness. The court determined the defendant's claim did not meet the second prong of Golding, as it was not of constitutional magnitude, referencing a precedent case, State v. Toccaline, which ruled that similar claims related to expert witness credibility are evidentiary rather than constitutional. The court concluded that the admission of expert testimony regarding witness credibility is an evidentiary issue, not a constitutional one, and thus the defendant cannot prevail under Golding.
The defendant contends that the testimonies of Bhargava, Guest, and Massey were admitted in error under Practice Book 60-5, a claim previously dismissed in Toccaline. Plain error review is reserved for extraordinary cases with obvious errors that compromise the fairness and integrity of judicial proceedings, and it should be applied sparingly. To succeed, a party must show that not granting relief would result in manifest injustice. The Supreme Court in Toccaline determined that admitting an expert's testimony regarding a sexual assault victim's credibility did not constitute plain error. In this instance, the court finds no plain error in admitting the testimony of Bhargava, Guest, and Massey, asserting that, even if the testimony was improper, it did not undermine the trial's fairness or lead to manifest injustice.
The defendant's second claim is that the court abused its discretion by permitting the state to amend the information regarding the date of the alleged sexual assault after voir dire commenced. He argues that the state must provide a clear timeframe, which he claims prejudiced his rights by forcing him to disclose his incarceration in 1998, potentially harming his credibility, and limiting his ability to question jurors about their impartiality regarding his incarceration. The facts pertinent to this claim include the state’s July 5, 2001 filing of a substitute long form information alleging the assault occurred between January 1, 1999, and June 27, 1999, later amended to "approximately June 1998." The state's bill of particulars indicated uncertainty regarding the exact time of the offense, citing the victim's poor sense of time. Anticipated witness testimony indicated that the assault likely occurred shortly before the complainant's initial disclosure in June 1998. Additionally, the timeframe for another charge against the defendant was similarly amended to June 1998.
The defendant objected to the motion to amend the information and bill of particulars, claiming lack of a specific time frame for his defense. Following the amendment, he filed a notice of alibi, asserting he was incarcerated during the time of the alleged sexual assault. Evidence showed his incarceration was from May 5 to September 29, 1998. Under Practice Book 36-18, amendments can be made during trial for good cause, as long as no new offenses are charged and the defendant's rights are not prejudiced. The court reviews such determinations under an abuse of discretion standard.
The defendant argued that the amendments resulted in inadequate notice, asserting the court abused its discretion by allowing amendments without a clear time frame for the alleged assault, violating his constitutional rights. The court found this unpersuasive, citing that the state must inform the defendant of when the offense occurred within reasonable limits, but is not obligated to provide specific dates if precise information is unavailable. The defendant did not contest that the state could not have obtained more precise information or that time was not a material element of the crimes charged. He also did not argue that the state improperly alleged a lengthy time frame based on imprecise information from a mentally handicapped victim. Instead, he claimed the lack of a distinct time frame in the amended information denied him adequate notice for his defense preparation. However, the court concluded that his reliance on a prior case regarding the need for a clear time frame was misplaced.
The state is allowed to charge a defendant with a crime that occurred "on or about" a certain date when the specific timing is not a material element of the offense or when a precise date is unavailable. In such cases, the defendant is considered to have notice that the charge is not limited to a specific date. The courts have established that proof of a date reasonably near the specified date suffices when the "on or about" language is used. In the case of State v. Saraceno, the court upheld a trial court's denial of a request for a more detailed bill of particulars concerning various sexual assaults alleged to have occurred over a three-year span, indicating that a broad time frame does not necessarily violate the defendant's rights.
In the current case, the information alleges that the sexual assault occurred "on a date in approximately June 1998," indicating a shorter time frame than in Saraceno. The amended information and the bill of particulars provided adequate notice regarding the victim's initial disclosure on June 28, 1998. The defendant was informed that the victim had difficulty recalling exact dates, which further confirmed the reasonable notice of the alleged offense occurring near that date. The state's arguments regarding the timing of the assault, suggesting late April or early May 1998, fall within the defined time frame, providing further support that the defendant was sufficiently apprised of the charges. The court's discretion in allowing amendments to the information after voir dire is also examined, noting that adherence to notice requirements is paramount in ensuring the defendant's ability to prepare a defense.
The defendant must demonstrate specific prejudice due to the state's delay in notifying him of the charges. The trial court has discretion to permit amendments to the information, and appellate review of such decisions is based on whether there has been an abuse of discretion. The defendant claims the amended information prejudiced him by allowing the state to change the date of the alleged offense, undermining his alibi. However, the original information and bill of particulars were filed on July 18, 2001, and the defendant filed his alibi notice six days later. The state did not subsequently amend the information after the alibi was disclosed. The bill of particulars constrains the state to proving the offense as described, and does not require a more precise date than the evidence supports, even when an alibi is asserted. An alibi is a factual matter for the jury, and the existence of an alibi does not necessitate a stricter timeline for the charges. Additionally, the defendant argued he was prejudiced by not being able to question jurors about his incarceration alibi. However, a mere assertion of prejudice is insufficient; he must provide specific evidence of prejudice affecting his due process rights. The record does not show any indication that he intended to question jurors on his alibi or that the jury was biased against him. Consequently, the court found that the defendant had adequate notice and voluntarily pursued his alibi defense without showing substantive prejudice.
The defendant did not object to continuing voir dire while researching a potential alibi or request to question already selected jurors about their knowledge of his incarceration after disclosing the alibi. He conceded that the state either had or could have obtained more precise information regarding the dates of the alleged sexual assault, recognized that time is critical to the charges, and accepted that a lengthy time frame can be charged with imprecise information from a mentally handicapped, youthful victim. The court found the defendant adequately informed of the timeframe and failed to demonstrate any prejudice from the state's amendments, leading to the conclusion that the court did not abuse its discretion in allowing the amendment. The judgment was affirmed, and the court refrained from identifying the victim to protect her privacy rights. A curative instruction clarified that the jury must independently assess the victim's credibility, not relying on another witness's belief in the victim. The defendant's claim regarding impaired voir dire was preserved for appellate review, despite not being raised explicitly during the trial, as it relates to the harm resulting from lack of notice regarding the amendment to the charges. The state was required to seek permission for the amendment by July 18, 2001, following the start of voir dire on July 6, 2001. The victim's age and mental impairments limited the precision of the information available to the state concerning the assault.
The state is limited to the resources it possesses, and the court will not establish a level of specificity regarding the date, time, and place of offenses that could hinder the prosecution of sexual abuse against children. Doing so would create a scenario in which certain crimes could be committed without consequence. The court acknowledges that the mental impairments of victims may result in vague timelines for when offenses occur. This situation is exacerbated when considering the victim's youth. Previous rulings, such as in *State v. Saraceno*, established that the timing of the offense is not a critical element in sexual assault crimes. Subsequent cases have upheld this principle, indicating that a broad time frame in bills of particulars does not violate a defendant's constitutional right to notice, as seen in *State v. Mancinone* and *State v. Blasius*, where allegations of offenses occurring within specified ranges were deemed sufficient for legal proceedings.
