637 A.2d 1101 (Conn. 1994)
The defendant was charged in a substitute information with eight counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), eight counts of risk of injury to a child in violation of General Statutes § 53-21, and one count of assault in the third degree in violation of General Statutes § 53a-61 (a) (1).1 Following a jury trial, he was found guilty on all counts of sexual assault in the second degree and risk of injury to a child but was acquitted of the assault charge.2 The trial court sentenced the defendant to a term of imprisonment of twenty-four years, execution suspended after twelve years, followed by five years probation.3 The defendant appealed to the Appellate Court, and the appeal was transferred to the Supreme Court of Connecticut pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).4
The victim was the daughter of a neighbor and a friend of the defendant's daughter.5 Beginning sometime in 1982, when the victim was approximately eight years old and in the third grade, the defendant began making sexual overtures to her.6 In response to her protests, the defendant told her he would leave her alone if she allowed him to take topless photographs of her.7 After she complied, he persisted in his contact, threatening to show the photographs to her friends if she refused to see him.8 By the time the victim was in the fourth grade, the defendant had begun to molest her physically.9 At some point while she was still in the fourth or fifth grade, he began to have sexual intercourse with her on a regular basis, continuing even after she moved out of the neighborhood, often in his van at various locations.10
When the victim was in the tenth grade, she told the defendant she wanted him to leave her alone and no longer cared what he did with the photographs.11 At that time her parents were attempting to adopt a little girl, and the defendant intimated that the adoption would not go through if authorities were notified of their relationship.12 The sexual relationship continued until March 1989, when the defendant, in an attempt to end a platonic friendship between the victim and a classmate named Marvin, told her to advise Marvin that she was pregnant and provided her with a falsified home pregnancy test that displayed a positive result.13 Marvin promptly informed the victim's parents, and when confronted by her mother the victim disclosed the nature of her relationship with the defendant.14
On March 9, 1989, the victim gave a statement to the police.15 The next day her mother took her for a medical examination that revealed she was in fact pregnant, and on March 22, 1989, the victim had an abortion.16 DNA testing was performed by Lifecodes Corporation on blood samples from the defendant and the victim and on tissue from the aborted fetus.17 This produced a paternity index of 3496.18 At trial the state's expert witness Kevin McElfresh, director of Identity Testing Laboratories of Lifecodes, testified that this converted to a 99.97 percent probability of paternity using Bayes' Theorem with an assumed 50 percent prior probability.19 The victim testified that the defendant's penis had white, pimple-like bumps underneath the head.20 The defense presented physician Harry Anderson who examined the defendant and found no such bumps.21 Over the defendant's objection, the trial court ordered a visual inspection of the defendant's penis by Richard Godwin, the victim's advocate in the Fairfield state's attorney's office, who testified that he observed three small white bumps resembling pimples under the head after pulling back the foreskin of the uncircumcised penis. During voir dire the state questioned venirepersons about their general feelings concerning abortion.22 It asked each venireperson if evidence that the victim had had an abortion would affect his or her ability to return a guilty verdict if the defendant's guilt was proven beyond a reasonable doubt.23
Whether the trial court improperly admitted expert testimony of the probability of paternity percentage calculated from DNA evidence using Bayes' Theorem?24
In a criminal sexual assault prosecution, expert testimony stating a probability of paternity statistic calculated using Bayes' Theorem with an assumed prior probability of paternity is inadmissible.25 This is because it requires an assumption of a prior probability of guilt that is inconsistent with the presumption of innocence.26 Under the presumption, the prosecution must prove every fact necessary to constitute the crime beyond a reasonable doubt.27
Yes. The state's expert witness Kevin McElfresh testified at trial regarding the defendant's paternity index of 3496, which he converted into a 99.97 percent probability of paternity using Bayes' Theorem with an assumed prior probability of 50 percent.28 DNA testing was performed by Lifecodes Corporation on blood samples from the defendant and the victim and on tissue from the aborted fetus. The utilization of Bayes' Theorem permitted the introduction of evidence predicated on an assumption that there was a fifty-fifty chance that sexual intercourse had occurred to prove that sexual intercourse had in fact occurred.29 Sexual intercourse is an element that must be proven by the state beyond a reasonable doubt.30
The assumption was not predicated on the evidence in the case but was simply an assumption made by the expert.31 If the presumption of innocence were factored into Bayes' Theorem the probability of paternity statistic would be useless because it would always be zero.32 The admission of this evidence raised serious concerns because it is antithetical to the criminal justice system to presume anything but innocence at the outset of a trial.33
The trial court improperly admitted the expert testimony stating a probability of paternity statistic, and because the admissibility involves a constitutional issue and the admission was not harmless beyond a reasonable doubt a new trial is required.34
Whether the trial court abused its discretion during voir dire by permitting the state to question venirepersons about their ability to decide the case impartially despite evidence that the victim had had an abortion?35
The trial court has wide discretion in conducting the voir dire, and the exercise of that discretion will not constitute reversible error unless it has clearly been abused or harmful prejudice appears to have resulted.36 Voir dire should be limited to questions which are pertinent and proper for testing the capacity and competency of the juror and which are neither designed nor likely to plant prejudicial matter in the jurors' minds.37
No. During the voir dire the state questioned the venirepersons about their general feelings concerning abortion. It followed up by asking each venireperson if evidence that the victim had had an abortion would affect his or her ability to return a verdict of guilty if the defendant's guilt was proven beyond a reasonable doubt. Abortion is a highly controversial topic.38 A juror's feelings on abortion quite possibly could affect his or her ability to remain impartial.39
The fact of the victim's abortion was foreseeably a part of the state's proof in the case.40 The state's questions were designed to probe the ability of each venireperson to render an unbiased verdict regardless of his or her sentiments concerning abortion.41 They were essential to enable it to exercise its peremptory challenges intelligently.42 The trial court has broad discretion to determine the latitude and the nature of the questioning that is reasonably necessary to search out potential prejudices of the jurors.43
We cannot say that the court abused its discretion in the present case.44
The trial court did not abuse its discretion by permitting the state to question venirepersons regarding their ability to decide the case impartially despite evidence that the victim had had an abortion.45
Whether the trial court's order requiring a visual inspection of the defendant's penis by a non-medical state employee violated the defendant's rights under the Fourth and Fourteenth Amendments to the United States Constitution?46
The test of reasonableness under the Fourth Amendment requires a balancing of the need for the particular search against the invasion of personal rights that the search entails.47 A crucial factor is the extent to which the procedure may threaten the safety or health of the individual.48 Another factor is the extent of intrusion upon the individual's dignitary interests in personal privacy and bodily integrity.49
No. The victim testified that she had observed during their relationship that the defendant's penis had white pimple-like bumps underneath the head. The defense presented the testimony of physician Harry Anderson, who testified that he had examined the defendant's penis and found no such bumps but had not noticed whether the defendant was circumcised and had not physically pulled the defendant's foreskin back. Over the defendant's objection, the trial court ordered the defendant to submit to a visual inspection by Richard Godwin, the victim's advocate in the Fairfield state's attorney's office, who testified that he had observed three small white bumps that resembled pimples under the head of the defendant's penis after pulling back the foreskin of the uncircumcised penis. The visual examination posed no safety or health threat to the defendant.50 Although it may have intruded upon his personal privacy to a degree, it did not constitute an unduly extensive imposition on his personal privacy and bodily integrity merely because the observation was made by a layperson rather than by a physician.
The trial court did not abuse its discretion by ordering the inspection pursuant to Practice Book section 776.51
The trial court's order requiring a visual inspection of the defendant's penis by a non-medical state employee did not violate the defendant's rights under the Fourth and Fourteenth Amendments to the United States Constitution.52