State v. Bonello

554 A.2d 277, 210 Conn. 51, 1989 Conn. LEXIS 21
CourtSupreme Court of Connecticut
DecidedFebruary 14, 1989
Docket13219
StatusPublished
Cited by46 cases

This text of 554 A.2d 277 (State v. Bonello) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bonello, 554 A.2d 277, 210 Conn. 51, 1989 Conn. LEXIS 21 (Colo. 1989).

Opinion

Glass, J.

This case presents us with our first opportunity to determine whether this court’s decision in State v. Jarzbek, 204 Conn. 683, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988), permitting the taking of videotaped testimony of a complaining child witness outside the physical presence of the defendant to be used as evidence in sexual abuse cases, is consistent with the United [53]*53States Supreme Court’s subsequent decision in Coy v. Iowa, 487 U.S. 1012, 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988).

The present case arises from allegations that the defendant, Brian Bonello, sexually abused a five year old child.1 The defendant was charged in an amended information with the crimes of sexual assault in the first degree, in violation of General Statutes § 53a-70 (a), sexual assault in the second degree, in violation of General Statutes § 53a-71 (a) (1), and risk of injury to a minor, in violation of General Statutes § 53-21.2 Over the defendant’s objection, the trial court, Reilly, J., granted the state’s pretrial motion to videotape the complainant’s testimony outside of the defendant’s physical presence. The videotaped testimony was admitted into evidence at the trial before S. Freedman, J. The jury found the defendant guilty of all charges. In the judgment rendered on the verdict, the defendant was sentenced to a total effective term of twenty years [54]*54imprisonment, suspended after ten years, and five years probation.

The defendant appealed to the Appellate Court, claiming that the trial court had violated his constitutional right to confront the witnesses against him by permitting the complaining child witness’s testimony to be videotaped outside the defendant’s physical presence. He also claimed that the trial court had erred in failing to determine, as a predicate to the use of the videotape procedure, that the witness would be unable to testify in the defendant’s presence. After the appeal was transferred to this court pursuant to Practice Book § 4023, we remanded the case to the trial court to conduct an evidentiary hearing to determine whether, under State v. Jarzbek, supra, the defendant’s physical presence at the videotaping would seriously have called into question the trustworthiness and reliability of the complainant’s testimony. On remand, the trial court, Reilly, J., concluded that the state had demonstrated by clear and convincing evidence that the procedure was necessary to ensure the reliability of the complainant’s testimony. The defendant now claims that the evidence was insufficient under Jarzbek. We find no error.

I

The remand order was issued on October 2,1987. On May 24,1988, the trial court issued a memorandum of decision concluding that the use of the videotape procedure was permissible under Jarzbek. The defendant in the present case, as well as the defendants in other appeals pending before this court involving remands under Jarzbek,3 have argued that the constitutionality of Jarzbek is now suspect under the United States Supreme Court’s decision of June 29, 1988, in Coy v. [55]*55low a, supra. It is therefore necessary to analyze Jarzbek in light of Coy v. Iowa before addressing the defendant’s claim that the trial court erred in concluding that the evidence supporting the state’s use of the videotape procedure was sufficient under Jarzbek. In analyzing the relationship of these two cases, we must determine whether Coy establishes as absolute the defendant’s right to face-to-face confrontation with his accuser. If, however, limited abridgement of this right is permissible, we must then determine whether the specific standards set forth in Jarzbek to safeguard the defendant’s right are consistent with Coy. Finally, we must determine whether Jarzbek, if consistent with Coy, is supported by a rationale sufficient to permit an abridgement of the right.

In Jarzbek, we surveyed several Supreme Court precedents dealing with the sixth amendment right to confrontation, and concluded that “[tjhe protection that the confrontation clauses afford to a criminal defendant is not . . . absolute.” State v. Jarzbek, supra, 693; see Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980) (confrontation right not violated by introduction of hearsay statements of declarant who is unavailable at trial, if statement bears adequate indicia of reliability); Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973) (right to confront and to cross-examine is not absolute and may bow to accommodate other legitimate interests); California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970) (confrontation clause not violated by admitting declarant’s hearsay statements if declarant is testifying as witness and subject to full cross-examination); Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965) (adequate opportunity to cross-examine may satisfy confrontation clause in absence of physical confrontation).

[56]*56Our order of remand in the present case provides a suitable summary of the standards set forth in Jarzbek that followed our conclusion that the right to face-to-face confrontation is not absolute. Jarzbek “held that the practice of videotaping the testimony of a minor victim outside the physical presence of the defendant is, in appropriate circumstances, constitutionally permissible. [State v. Jarzbek, supra], 704. Rather than adopt an across-the-board rule, however, [we] mandated a case-by-case analysis, ‘whereby the trial court must balance the individual defendant’s right of confrontation against the interest of the state in obtaining reliable testimony from the particular minor victim in question.’ Id. Under this balancing approach, the trial court must determine whether the state has demonstrated a ‘compelling need’ to videotape the testimony of a minor victim outside the physical presence of the defendant sufficient to outweigh the defendant’s right of confrontation. In order to satisfy its burden of proving ‘compelling need,’ the state must: (1) show that ‘the minor victim would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that the trustworthiness of the victim’s testimony would be seriously called into question’; and (2) establish proof of ‘compelling need’ by ‘clear and convincing evidence . . .’ [Id.], 705. [Jarzbek] clearly state[s] that the ‘primary focus of the trial court’s inquiry must be on the reliability of the minor victim’s testimony, not on the injury the victim may suffer by testifying in the presence of the accused.’ Id.”

In Coy v. Iowa,

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Bluebook (online)
554 A.2d 277, 210 Conn. 51, 1989 Conn. LEXIS 21, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bonello-conn-1989.