STATE  v. JAMES SIMPSON, SC 18051

Judicial District of Waterbury

 Criminal; Admissibility of Videotaped Testimony of Minor Victim; Whether Trial Court Properly Permitted State to Introduce Videotaped Interview under State v. Whelan, 200 Conn. 743 (1986), of Child Victim who was Unable to Recall Events when Called to Testify at Trial; Whether Admission of Videotape was Proper under Crawford v. Washington, 541 U.S. 36 (2004). The defendant was charged with sexual assault in the first degree and risk of injury to a minor.  At his trial, the young victim stated that she no longer remembered what had occurred.  The state then claimed that her inability to recall the alleged events justified the admission, for substantive purposes, of portions of a videotaped statement of an interview of the victim by an evaluator at the Waterbury Child Guidance Clinic.  The trial court agreed and admitted the videotape under State v. Whelan, 200 Conn. 743 (1986), which permits the introduction of a prior inconsistent statement of a witness if it is in writing and signed by the declarant who has personal knowledge of the facts in the statement and is available to testify at trial and be cross-examined. Subsequent cases have held that Whelan applies to tape recorded statements and that the signature requirement is waived as to taped statements. The defendant was found guilty as charged.  In this appeal, he argues that the admission of the videotape was improper because the victim had not recanted or disavowed her earlier statements and that those statements were not inconsistent with her testimony.  He further claims that the statements on the videotape were not given under circumstances reasonably assuring their reliability. He claims that the victim's taped testimony, which was given three weeks after her initial complaint, consisted of answers to leading questions and that the victim was unable to stay focused and blurted out bizarre questions during the course of the interview.  In addition, the defendant argues that even if the admission of the videotape was proper under Whelan, its admission nonetheless violated Crawford v. Washington, 541 U.S. 36 (2004), because it was made as part of an investigation arranged by the police and, since the victim could not remember talking about what had occurred, she was functionally unavailable for cross-examination.  The defendant claims that this case is distinguishable from State v. Pierre, 277 Conn. 42 (2006), in which this court held that a witness' claimed inability to recall earlier statements or events did not violate the confrontation clause under Crawford as long as the witness appears at trial, takes an oath to testify truthfully and answers the questions put to him at cross-examination.  This case is distinguishable from Pierre, he maintains, because the witness here is a young child who is so disturbed that the defense's opportunity to cross-examine her was constitutionally inadequate.