ALVORD, J.
The defendant, Giovanni P., appeals from the judgment of the trial court revoking his probation and imposing an eighty month sentence of incarceration. On appeal, the defendant claims that (1) the court improperly admitted a video recording of an interview conducted with his son, F.P.; (2) the court improperly admitted the testimony of Marcela C., who is the defendant's former wife and the mother of F.P., as to statements made to her by F.P.; and (3) the state violated his right to due process by suppressing exculpatory information.
The following facts and procedural history are relevant to the defendant's appeal. On July 20, 1999, the defendant pleaded guilty to one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a)(2) and one count of risk of injury to a child in violation of General Statutes § 53-21(a)(2). On October 15, 1999, the defendant was sentenced to a total effective sentence of twelve years incarceration, execution suspended after five years, and ten years probation with special conditions. The terms of the defendant's probation included the standard conditions that he not violate any criminal law and that he report to his probation officer as directed. The relevant special conditions of the defendant's probation included that he register as a sex offender and have no unsupervised contact with minors.
In 2004, the defendant met and married Marcela C., and the couple had a son, F.P., in 2006. The defendant was allowed supervised contact with his son after he completed a family education program. The couple filed for divorce in July, 2008. Marcela C. claimed that she witnessed F.P. exhibiting sexualized behaviors sometime in 2010, which she described as "humping" her boyfriend and his brother. In February, 2011, after learning from a babysitter that F.P. had placed an object between the buttocks of the babysitter's child, Marcela C. filed a complaint with the New Britain Police Department. The defendant was arrested for sexual assault in the first degree in violation of § 53a-70 (a)(2) and risk of injury to a child in violation
A violation of probation hearing was held.
As a preliminary matter, we set forth general principles of law pertaining to revocation of probation proceedings. "A revocation of probation hearing has two distinct components and two purposes. A factual determination by a trial court as to whether a probationer has violated a condition of probation must first be made. If a violation is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served." (Internal quotation marks omitted.) State v. Quinones, 92 Conn.App. 389, 391, 885 A.2d 227 (2005), cert. denied, 277 Conn. 904, 891 A.2d 4 (2006). "[A] probation revocation proceeding is civil in nature and, therefore, does not require all of the procedural components associated with an adversary criminal proceeding.... As such, the state's burden in probation revocation proceedings is governed by the fair preponderance of the evidence standard, which is the ordinary civil standard of proof." (Citation omitted; internal quotation marks omitted.) State v. Holmes, 70 Conn.App. 4, 8, 796 A.2d 561 (2002). "It is well settled that probation proceedings are informal
The defendant first claims that the court erred in admitting into evidence a video recording of an interview conducted with F.P. by Erin Byrne, a clinical child interview specialist at the Children's Advocacy Center (center), located at Saint Francis Hospital. The defendant argues that the court erred in admitting the video recording because (a) it did not satisfy the medical treatment exception to the hearsay rule, and (b) the admission of the video recording violated his due process right to cross-examine F.P. We disagree with both of these claims.
The following additional facts are relevant to the resolution of the defendant's claims. After witnessing the "humping" behaviors sometime in 2010 and after learning of the incident with the babysitter's daughter in February, 2011, Marcela C. contacted the police in February, 2011. On February 28, 2011, F.P. was interviewed by Byrne. The court recounted F.P.'s statements made during the interview as follows: "F.P. states that the father touches him with the finger, does it a lot of times, father touches the butt, he goes inside, touches it a lot of times with fingers. Father says, fun, fun. It really happened. Not pretend. It makes his body feel funny. F.P. touches father's body. Father's body wiggles. Touches father underneath clothes. Touches father butt and then indicated no more talk about body parts." The interview was recorded. During the violation of probation hearing, the state called Byrne as a witness and also offered the video recording into evidence.
After taking a recess until the next morning to review the law and the arguments, the court admitted the video recording into evidence. The court addressed the state's offer under the medical treatment exception, concluding that the interview was conducted for the purpose of medical diagnosis and treatment, and therefore was admissible under State v. Hickey, 135 Conn.App. 532, 551-52, 43 A.3d 701, cert. denied, 306 Conn. 901, 52 A.3d 728 (2012).
The defendant first claims evidentiary error, arguing that the video recording did not satisfy the medical treatment exception to the hearsay rule. We find no error.
We first set forth our standard of review. "To the extent that a court admits evidence relying on an interpretation
"We review the trial court's decision to admit [or exclude] evidence, if premised on a correct view of the law ... for an abuse of discretion.... We will make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion.... The trial court has wide discretion to determine the relevancy [and admissibility] of evidence.... In order to establish reversible error on an evidentiary impropriety ... the defendant must prove both an abuse of discretion and a harm that resulted from such abuse." (Internal quotation marks omitted.) State v. Hickey, supra, 135 Conn.App. at 543, 43 A.3d 701.
We next set forth the legal principles relating to the medical treatment exception to the hearsay rule. "An 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. Hoffler, 55 Conn.App. 210, 215-16, 738 A.2d 1145 (order of probation admissible in probation revocation proceeding under business records exception), cert. denied, 251 Conn. 923, 742 A.2d 360 (1999). "Out-of-court statements made by a patient to a physician may be admitted into evidence if the declarant was seeking medical diagnosis or treatment, and the statements are reasonably pertinent to achieving these ends." (Internal quotation marks omitted.) State v. Cecil J., 99 Conn.App. 274, 289, 913 A.2d 505 (2007), aff'd, 291 Conn. 813, 970 A.2d 710 (2009). "The term `medical' encompasses psychological as well as somatic illnesses and conditions.... Furthermore, statements made by a sexual assault complainant to a social worker may fall within the exception if the social worker is found to have been acting within the chain of medical care." (Citations omitted.) State v. Telford, 108 Conn.App. 435, 440, 948 A.2d 350, cert. denied, 289 Conn. 905, 957 A.2d 875 (2008). "In sexual abuse cases, statements made by the complainant about the identity of the person causing the injury may be found relevant to proper diagnosis and treatment." (Internal quotation marks omitted.) State v. Hickey, supra, 135 Conn. App. at 550, 43 A.3d 701.
The defendant has not demonstrated that the court abused its discretion in determining that the interview was for medical purposes and, thus, admitting the video recording into evidence.
In light of our determination that the court properly admitted the video recording under the medical treatment exception, we are not required to address the alternate ground for admission under State v. Shakir, supra, 130 Conn.App. at 465, 22 A.3d 1285. Because the trial court also found that the video recording was admissible under Shakir, however, we briefly note our agreement. In Shakir, this court upheld the trial court's admission in a violation of probation hearing of a video recording of a forensic interview with a child disclosing sexual abuse. Id., at 461, 465, 22 A.3d 1285. This court applied the standard for admission of hearsay evidence in a revocation of probation proceeding, determining whether the hearsay evidence is "relevant, reliable and probative." (Internal quotation marks omitted.) Id., at 464, 22 A.3d 1285. This court explained: "The [trial] court had before it [the investigating detective's] testimony that (1) the chain of custody for the video was intact, (2) the minor complainant was not influenced as to her answers and (3) as a matter of procedure, the police department required questioning to be performed by a licensed clinical social worker trained to conduct such interviews. Moreover, because strict admissibility rules do not apply ... and the trier of fact was the court, not a jury, it was within the court's discretion upon viewing the video to assess the reliability of the evidence in light of the circumstances reflected on the video." (Citation omitted.) Id., at 465, 22 A.3d 1285.
The defendant next claims that, by admitting the video recording in place of F.P.'s testimony, he was denied his right to cross-examine an adverse witness in violation of his right to due process under the fourteenth amendment to the United States constitution.
"The due process clause of the fourteenth amendment to the United States constitution requires that certain minimum procedural safeguards be observed in the process of revoking the conditional liberty created by probation." (Internal quotation marks omitted.) State v. Faraday, 268 Conn. 174, 182, 842 A.2d 567 (2004). The basic requirements include: "(a) written notice of the claimed violations of [probation]; (b) disclosure to the [probationer] of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a `neutral and detached' hearing body ... [the] members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation]." Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); see also Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (extending due process requirements outlined in Morrissey for parole hearings to probation hearings).
"In considering whether the court had good cause for not allowing confrontation or `that the interest of justice [did] not require the witness to appear'; Fed.R.Crim.P. 32.1(b)(2)(C); the court should `balance, on the one hand, the defendant's interest in confronting the declarant, against, on the other hand, the government's reasons for not producing the witness and the reliability of the proffered hearsay.'" State v. Shakir, supra, 130 Conn.App. at 468, 22 A.3d 1285. Federal decisions have suggested, however, that the court is not required to conduct such balancing in all circumstances. "[U]nder [United States v. Jones, 299 F.3d 103, 113 (2d Cir.2002)], the balancing analysis need not be made where the proffered out-of-court statement is admissible under an established exception to the hearsay rule." United States v. Aspinall, 389 F.3d 332, 344 (2d Cir.2004); see United States v. Jones, supra, at 113 (requirement that court consider government's grounds for not allowing confrontation did not apply because statements were admissible under excited utterance exception).
The defendant next claims that the court erred in admitting the testimony of Marcela C. as to statements made to her by F.P. The following additional facts are relevant to this claim. Marcela C. testified that F.P. began to do inappropriate things in 2010, such as "humping my boyfriend and his brother." When asked whether she had talked to F.P. about these behaviors and what he told her about them, the defendant objected. The state argued that the testimony was admissible as reliable hearsay under State v. Dollinger, 20 Conn.App. 530, 541, 568 A.2d 1058, cert. denied, 215 Conn. 805, 574 A.2d 220 (1990), because the statement contained content that was beyond the ken of a child of F.P.'s age. The defendant argued that (1) Marcela C., having been involved in an "ugly divorce," had motive to hurt the defendant, and (2) the statement of F.P. was not reliable because it is hearsay and the defendant might not later have an opportunity to question F.P. about the statement if he does not testify. The court took a brief recess to review Dollinger and then overruled the defendant's objection. Marcela C. then testified as to statements of F.P., that "he said that's what his father does to him," and "he said my father's pee pee comes with mine...."
The defendant claims that the statements were unreliable hearsay, and that the court failed to "consider the requirement that uncorroborated hearsay is only admissible if there is good cause to excuse the presence of the declarant." He specifically argues that the court abused its discretion by "[t]he ... admission of this testimony [that] was not corroborated by any physical evidence, not repeated to an unbiased professional, and the act itself was something that a four year old could mimic after witnessing animals engage in such act...." We are not persuaded.
The central arguments as to whether the court abused its discretion in admitting
The trial court in the present case, in ruling on the defendant's objection, noted: "[T]he state's position is based in large part on the ruling in Dollinger. The court has had an opportunity to review that case. First of all, Dollinger was not a violation of probation hearing case; it was a trial and this is a violation of probation hearing which starts out with the ability for hearsay evidence to be allowed. It is allowed if it can be found as probative, reliable and there's some ... indicia of reliability."
We are mindful that "[i]t is well settled that the strict rules of evidence do not apply to probation proceedings.... It is just as well settled that hearsay evidence is admissible in a probation revocation hearing when the evidence is relevant, reliable and probative."
The defendant challenges the trial court's findings that the statements were probative and reliable. The defendant attempts to distinguish Dollinger by noting that the child in Dollinger was determined incompetent to testify and was, therefore, unavailable, and that there was corroboration of the child's statements. This court has considered the application of the Dollinger factors
The defendant lastly claims that the state violated his due process rights by suppressing exculpatory information. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, he claims that the state "fail[ed] to disclose to the defense prior to or during the trial the impeachment evidence pertaining to [the center] and Byrne, including the stated law enforcement purposes of the forensic interview, and by failing to correct the misleading testimony that the interview was for medical purposes." The defendant further argues that "it was the obligation of the state to disclose in a timely manner the fact that the [center] is funded by federal law enforcement and [Department of Children and Families] dollars...."
The constitutional violation claimed by the defendant is the suppression of impeachment evidence by the state. "In Brady v. Maryland, supra, 373 U.S. at 87, 83 S.Ct. 1194, the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith
We determine that the defendant cannot satisfy Golding's third prong. He has not established that the alleged constitutional violation clearly exists because the defendant failed to establish that any evidence was suppressed. See State v. Collic, 55 Conn.App. 196, 207, 738 A.2d 1133 (1999). "[E]vidence is not considered to have been suppressed within the meaning of the Brady doctrine if the defendant or his attorney either knew, or should have known, of the essential facts permitting him to take advantage of [that] evidence.... Documents that are part of public records are not deemed suppressed if defense counsel should know of them and fails to obtain them because of lack of diligence in his own investigation." (Citations omitted; internal quotation marks omitted.) United States v. Payne, 63 F.3d 1200, 1208 (2d Cir.1995); see also State v. Simms, 201 Conn. 395, 407, 518 A.2d 35 (1986) ("any information bearing on ... credibility as a witness was as available to the defendant as it was to the state, or could have been discovered through reasonably diligent research"); State v. Richard W., supra, 115 Conn.App. at 143, 971 A.2d 810 ("federal actions were a matter of public record to which the state and the defendant had equal access").
The evidence that the defendant claims was suppressed includes: (1) material published on the center's website about the center, the interviews it conducts, and its funding sources, and (2) information suggesting collaboration between the center and the state's attorney's office. This evidence was not suppressed within the meaning of that term. With regard to the defendant's claim concerning suppression of information published on the center's website, we determine that the information was as available to the defendant as it was to the state; State v. Simms, supra, 201 Conn. at 407, 518 A.2d 35; and was either already known or could have been discovered by the defendant. During arguments before the trial court as to the admissibility of the video recording, the defendant's counsel claimed that "a large part of the budget for [the center] is paid by the Chief State's Attorney's Office," but noted that he did not have any proof at the time to support the claim.
The defendant's second alleged impropriety regarding his Brady claim is that
The judgment is affirmed.
In this opinion the other judges concurred.
We do not need to reach the defendant's claims under Carey that, because the hearsay evidence was unsupported, it should have been excluded, because we conclude that the court properly admitted the video recording under the medical treatment exception. See State v. Huckabee, 54 Conn.App. 758, 763, 738 A.2d 681 (1999) (declining to reach issue as to whether attendance records were admissible under looser standards of probation revocation hearings which allow admissibility of hearsay evidence if reliable and not unsupported because records were properly admitted under business record exception).