Doe v. Thames Valley Council for Community Action, Inc.

797 A.2d 1146, 69 Conn. App. 850, 2002 Conn. App. LEXIS 269
CourtConnecticut Appellate Court
DecidedMay 21, 2002
DocketAC 20596; AC 20597
StatusPublished
Cited by17 cases

This text of 797 A.2d 1146 (Doe v. Thames Valley Council for Community Action, Inc.) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Doe v. Thames Valley Council for Community Action, Inc., 797 A.2d 1146, 69 Conn. App. 850, 2002 Conn. App. LEXIS 269 (Colo. Ct. App. 2002).

Opinion

Opinion

PETERS, J.

This civil action concerns claims for damages for alleged sexual assaults of preschool girls by their school bus driver. At trial, none of the girls was available as a witness because none remembered any of the alleged assaults. The principal issue on appeal is the admissibility, under the residual exception to the rule against hearsay, of the testimony of third party interviewers who spoke with the girls at a time when the girls still had some recall about the alleged sexual assaults. The trial court concluded that, under the circumstances of this case, the contested testimony was admissible because it was both necessary and reliable. We agree and affirm the judgment of the trial court.

The plaintiffs, four minor children, N, J, L and A brought an action, by and with their parents, against the defendants, Thames Valley Council for Community Action, Inc. (employer), and Scott Dixon, in which they alleged that Dixon had sexually assaulted the children and that the employer had acted negligently in hiring and supervising Dixon. Both defendants denied the occurrence of the alleged sexual assaults, and the employer, in addition, denied any liability for negli[853]*853gence. A jury found in favor of the plaintiffs against both defendants and assessed economic and noneconomic damages in the total amount of $526,600.1 The court denied the defendants’ motions for judgment notwithstanding the verdict, to set aside the verdict and for remittitur and rendered judgment against both defendants.

In their appeal from this judgment, the defendants have raised three issues. The defendants maintain that the court (1) abused its discretion by admitting into evidence hearsay statements about the alleged sexual assaults, (2) abused its discretion by admitting into evidence the expert testimony of a clinical psychologist and (3) improperly awarded damages for which there was no evidentiary basis. The defendant employer has not pursued any appellate claim challenging its liability for negligence.

I

RESIDUAL HEARSAY

The defendants’ principal claim is that the court should not have permitted various interviewers of the girls to testify about the girls’ statements of sexual abuse. The court decided that all of these statements were admissible under the residual exception to the hearsay rule, and one was also admissible under the medical treatment exception.2

“[T]he trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the [854]*854court’s discretion.” (Citation omitted; internal quotation marks omitted.) New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745, 752, 680 A.2d 301 (1996). We are not persuaded that there was any such abuse of discretion.

Before addressing the defendants’ specific claims of evidentiary impropriety, we set forth generally applicable legal principles. A basic rule is that “[a]n 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. Hines, 243 Conn. 796, 803, 709 A.2d 522 (1998). The residual exception is one of these exceptions, but it is one that should be used very rarely and only in exceptional circumstances. United States v. Medico, 557 F.2d 309, 315 (2d Cir.), cert. denied, 434 U.S. 986, 98 S. Ct. 614, 54 L. Ed. 2d 480 (1977). The residual exception has, however, been held to be “particularly well suited for the admission of statements by victims of child abuse and has been used in federal and state courts for this purpose. See, e.g., United States v. Dorian, 803 F.2d 1439 (8th Cir. 1986); United States v. Nick, 604 F.2d 1199 (9th Cir. 1979) . . . .” (Citation omitted.) State v. Dollinger, 20 Conn. App. 530, 540, 568 A.2d 1058, cert. denied, 215 Conn. 805, 574 A.2d 220 (1990). Finally, we note that, in this civil case, recourse to the residual exception does not implicate the confrontation clause contained in the United States constitution3 or the Connecticut constitution.4

When applicable, the residual exception to the hearsay rule permits statements to be admitted into evidence under limited circumstances that resemble traditional exceptions to the general prohibition of hearsay statements. The proponent of the admissibility of [855]*855such evidence must demonstrate that the proffered testimony is necessary and that the statements are supported by guarantees of reliability that are equivalent to evidence admitted under traditional hearsay exceptions. Conn. Code Evid. § 8-9; see also State v. McClendon, 248 Conn. 572, 583, 730 A.2d 1107 (1999); State v. Lewis, 245 Conn. 779, 805, 717 A.2d 1140 (1998); State v. Hines, supra, 243 Conn. 810; State v. Oquendo, 223 Conn. 635, 664, 613 A.2d 1300 (1992); State v. Sharpe, 195 Conn. 651, 665-66, 491 A.2d 345 (1985). State v. Dollinger, supra, 20 Conn. App. 541, lists various factors that may help a court to determine whether these guarantees of reliability are present.5

In this case, the parties agree that the necessity requirement has been met because of the lack of recall on the part of the girls of what happened between September and October of 1990. What is at issue is whether the plaintiffs have satisfied the second requirement that admissible hearsay statements must be supported by guarantees of reliability. That requirement is met “in a variety of situations, one of which is when the circumstances are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed. State v. Sharpe, supra, 195 Conn. 665. At minimum, the statement must independently bear adequate indicia of reliability to afford the trier of fact a satisfactory basis for evaluating [its] truth .... State v. Williams, 231 Conn. 235, 249, 645 A.2d [856]*856999 (1994); accord State v. Lapointe, 237 Conn. 694, 737, 678 A.2d 942, cert. denied, 519 U.S. 994, 117 S. Ct. 484,136 L. Ed. 2d 378 (1996).” (Internal quotation marks omitted.) State v. Hines, supra, 243 Conn. 810.

We must assess whether the trial court abused its discretion in permitting the juiy to hear testimony about statements by very young girls, none older than four years at the time of the alleged assaults. To determine whether the statements bore “adequate indicia of reliability,” we must take into account the manner in which the testifying interviewers elicited the girls’ statements. See

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Cite This Page — Counsel Stack

Bluebook (online)
797 A.2d 1146, 69 Conn. App. 850, 2002 Conn. App. LEXIS 269, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doe-v-thames-valley-council-for-community-action-inc-connappct-2002.