STATE v. MICHAEL MAGUIRE, SC 18828
Judicial District of Danbury
Criminal; Hearsay; Whether Trial Court Improperly Admitted Child's Statements Under the "Tender Years" Exception to the Hearsay Rule. In June, 2008, an eight year old child told her older brother that the defendant, who was one of their caretakers, touched her inappropriately. The brother relayed that information to another adult caretaker, who then questioned the child about her statement. Thereafter, a forensic interview of the child was conducted. Subsequently, the defendant was charged with, among other things, sexual assault and risk of injury to a minor. At the defendant's trial, the court admitted, pursuant to the "tender years" exception to the hearsay rule, the videotape and transcript of the forensic interview as well as the child's statements as related by her brother and caretaker. The tender years exception, which is set forth in General Statutes § 54-86l and § 8-10 of the Connecticut Code of Evidence, allows for the admission of a statement made by a child twelve years of age or younger concerning a sexual offense committed against the child if, among other things, the court finds that "the circumstances of the statement . . . provide particularized guarantees of its trustworthiness" and "the statement was not made in preparation of a legal proceeding." The defendant filed this appeal after being convicted of sexual assault in the fourth degree and risk of injury to a minor, contending primarily that the court improperly admitted evidence pursuant to the tender years exception. He asserts that the forensic interview was improperly admitted because the court failed to make a "trustworthiness" finding and failed to find that the child's statement was not made in preparation for a legal proceeding. He further argues that, because the interview took place after the official complaint was made, the entire interview, including the child's statements, violated the temporal limitation on the constancy of accusation doctrine as set out in State v. Samuels, 273 Conn. 541 (2005). The defendant contends that, even if the tender years exception effectively overruled Samuels as to the admissibility of the child's statements, the admission of the interviewer's statements, in the form of questions that incorporated the child's affirmative responses, was nonetheless improper under Samuels and State v. Troupe, 237 Conn. 284 (1996). The defendant also maintains that, because the tender years exception appears to authorize only a direct statement of a child, the testimony of the child's brother and the caretaker constituted constancy of accusation testimony that was improperly admitted as substantive evidence.