State v. Montini

730 A.2d 76, 52 Conn. App. 682, 1999 Conn. App. LEXIS 133
CourtConnecticut Appellate Court
DecidedApril 13, 1999
DocketAC 16883
StatusPublished
Cited by17 cases

This text of 730 A.2d 76 (State v. Montini) 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
State v. Montini, 730 A.2d 76, 52 Conn. App. 682, 1999 Conn. App. LEXIS 133 (Colo. Ct. App. 1999).

Opinion

Opinion

HENNESSY, J.

The defendant, Robert Montini, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), attempted sexual assault in the first degree in violation of General [684]*684Statutes §§ 53a-70 (a) (2) and 53a-49 and four counts of risk of injury to a child in violation of General Statutes § 53-21. The defendant claims that (1) the trial court abused its discretion by allowing the state to reopen its case to present additional testimony from the victim after the defense had rested, thus depriving the defendant of a fair trial, (2) the trial court abused its discretion in admitting into evidence a videotape of the victim’s testimony, in which the camera panned the courtroom and showed that the defendant was not present during the videotaping of that testimony, (3) the trial judge failed to recuse himself despite the appearance of partiality and (4) the trial court improperly granted the state’s motion to quash the defendant’s subpoena to have the victim testify at the Jarzbek1 hearing. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The victim was bom on May 28,1987, in Jamaica. On January 17, 1990, the victim’s mother married the defendant and in January, 1993, the victim, who had been living with relatives in Jamaica, moved in with her mother and the defendant.

On the evening of March 10, 1995, the mother saw the defendant stick his tongue into the victim’s mouth while kissing her. The mother called the police and the victim told the police about the incident. The police investigated the incident and reported it to the department of children and families (department). Subsequent interviews by the police and the department revealed the defendant’s prior conduct with the victim.

[685]*685From about January, 1993, to March, 1995, the defendant subjected the victim to various sexual acts. The defendant said he would blame her for his behavior if she told anyone about what he did to her. Additional facts and procedural history will be discussed where relevant to the issues on appeal.

I

The defendant claims that the trial court deprived him of a fair trial when it improperly allowed the state to reopen its case to present additional testimony after the state and the defendant had rested. We disagree.

The following facts and procedural history are necessary to the resolution of this issue. The victim testified by videotape that, on the evening of March 10, 1995, while playing hide-and-seek with her sister, she was invited by the defendant to hide under the sheets of the bed in which he was resting. Upon doing so, the defendant stuck his tongue into her mouth while kissing her. Her mother came into the bedroom, saw what was taking place and asked her what happened.2 The victim told her, and her mother called the police.

On October 22, 1996, the state called the victim’s mother as a witness. The mother’s testimony contradicted the testimony of the victim and also differed from her prior descriptions of the incident. The mother testified that she and the defendant had an argument and, later in the evening, the defendant pushed her toward the wall and punched her when she said she was going to divorce him and take the children away. [686]*686She then told the victim to tell the police that the defendant had put his tongue into her mouth and had been touching her. She claims that she told the victim to lie to the police because, on a previous occasion, when the defendant and she had had a physical confrontation, the police did nothing about it. The mother stated that she then called the police and falsely accused the defendant of molesting her daughter. She further testified that she later told her daughter to withdraw her statement against the defendant but did not tell the police that she made up the allegations against the defendant because she was afraid of being punished for falsely reporting a crime.

On October 29,1996, the state rested its case without presenting additional testimony from the victim to rebut her mother’s testimony. The next day, when the defendant still had two witnesses to call, the state indicated to the court that it planned to call the victim as a rebuttal witness. On October 31, 1996, the state filed a motion seeking the court’s permission to allow the victim to testify in rebuttal of her mother’s testimony, or, in the alternative, to reopen its case. The trial court declined to consider further testimony from the victim as rebuttal evidence, but granted the state’s motion to reopen its case.

The defendant argues that the rule of law is that a trial court may reopen a case only if it believes that evidence on a material issue was not introduced due to inadvertence or mistake, and that, in the absence of the evidence, there is a serious danger of a miscarriage of justice. The defendant further argues that there was no inadvertence or mistake because the state purposely delayed its request to reopen only to obtain a strategic advantage by having the victim testify last.

“[I]f a trial court feels that, by inadvertence or mistake, there has been a failure to introduce available [687]*687evidence upon a material issue in the case of such a nature that in its absence there is a serious danger of. a miscarriage of justice, it may properly permit that evidence to be introduced at any time before the case has been decided. . . . Thus, witnesses can be permitted to elaborate or to explain testimony already given. . . . The decision to reopen a criminal case to add further testimony lies within the sound discretion of the trial court. . . . The trial judge’s discretion, which is a legal discretion, should be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . The purpose of this discretion is to preserve the fundamental integrity of the trial’s truth-finding function. . . . The trial court’s discretion will be reversed only upon manifest abuse of discretion or injustice.” (Citations omitted; internal quotation marks omitted.) State v. Zoravali, 34 Conn. App. 428, 441-42, 641 A.2d 796, cert. denied, 230 Conn. 906, 644 A.2d 921 (1994).

In granting the state’s motion to reopen its case, the trial court indicated that the victim’s videotaped testimony was taken before anyone knew what testimony her mother would give, so the state was precluded from asking the child questions about her mother’s testimony. The defendant argued that, if the state had prepared its case properly, it would not have been surprised by the mother’s testimony. The state indicated, however, that prior to the trial, the mother was charged with a criminal offense as a result of her attempt to induce her daughter to conceal the defendant’s sexually abusive conduct from the police and, therefore, the attorney representing the mother in the criminal matter would not permit the prosecutor to interview her.

The trial court concluded that there was “a compelling circumstance here and that no substantial prejudice [688]*688will occur . . .

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Cite This Page — Counsel Stack

Bluebook (online)
730 A.2d 76, 52 Conn. App. 682, 1999 Conn. App. LEXIS 133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-montini-connappct-1999.