text:
    Paul Roach v. Mary F. Roach
    (7320)
    Dupont, C. J., Spallone and O’Connell, Js.

      Argued October 3, 1989
    decision released January 16, 1990

      Douglas S. Skalka, with whom were Debra A. Ludwig and, on the brief, Karen L. Williams, for the appellant (defendant).

      Sperry A. DeCew, for the appellee (plaintiff).

      Patty Jenkins Pittman filed a brief for Connecticut Women’s Education and Legal Fund, Inc., as amicus curiae.
   Dupont, C. J.

The defendant wife appeals from the judgment rendered in this dissolution action, challenging the financial awards of the trial court. The trial court, Hon. William L. Tierney, Jr., state trial referee, dissolved the parties’ marriage and ordered the plaintiff husband to convey his one-half interest in the marital residence to the defendant and to pay periodic alimony to the defendant in the amount of $300 per week for a period of three years. The primary issues on appeal are whether the trial court abused its discretion in awarding the defendant time limited alimony, and whether the defendant, in addition to the award of periodic alimony, should have been awarded support under General Statutes § 46b-85 because of her alleged mental illness.

We recognize that the court was faced with an extremely difficult case where there was no ideal financial solution and where equitable considerations could be applied to both parties. The parties were married in 1953. Six children were born of the marriage, all of whom have reached the age of majority. In 1970, the plaintiff moved out of the family residence, leaving the defendant to care for the parties’ children who, at that time, ranged in age from five to fifteen years. The defendant continues to reside in that house, located in New York state, with the parties’ schizophrenic son. From 1970 until 1986, when the youngest child attained majority, the plaintiff paid child support ordered by the state of New York in the form of mortgage, insurance and tax payments on the house. The plaintiff testified that he had paid other expenses for the children, but did not claim to have paid for their food or other household costs.

The defendant testified that since the separation she has worked at occasional jobs, borrowed money, accepted help from relatives, taken in boarders, and received welfare benefits. She is sixty years old, currently receives $403 per month in social security disability income and has not worked in ten years. She has no other income. The house in which the defendant had a one-half interest as of the date of the dissolution is subject to a tax lien and a $10,000 mortgage to Westchester County, New York, for welfare support furnished to her in the past.

The plaintiff is employed as a senior engineer and earns approximately $50,000 a year. He currently resides in and owns a cooperative apartment in Greenwich that is valued at $220,000 on his financial affidavit. In addition to the apartment and a one-half interest in the marital residence, the plaintiff’s assets include a $140,000 profit sharing plan, individual retirement accounts worth approximately $16,000, two vehicles, $4500 in savings bonds, and an interest of approximately $15,000 in the estate of his deceased aunt.

Neither party is in good health. The plaintiff is fifty-eight years old and has had open heart surgery twice. The defendant has been receiving psychiatric treatment intermittently since 1959. She began seeing her current psychiatrist, Selwyn Juter, as a primary patient in 1986 and has been hospitalized three times for mental problems since then. Juter testified that the defendant suffers from a chronic personality disorder that is exacerbated by stress, produces severely dysfunctional behavior, and requires ongoing psychiatric treatment. In his opinion, the defendant is unemployable due to her mental illness. He also testified that he does not expect her mental condition to improve in the future.

The plaintiff filed the present dissolution action on January 10,1986. In October, 1986, the court appointed a guardian ad litem for the defendant pursuant to an agreement by both parties. After unsuccessful attempts by the plaintiff to depose the defendant, the court granted the plaintiffs motion for an immediate trial, and set a trial date of June 7,1988. Because the defendant was hospitalized on that day and had admitted the allegations contained in the plaintiffs complaint, the court bifurcated the matter and granted the plaintiff an uncontested dissolution of marriage. Trial on the financial issues commenced later that month, and, after several days of testimony by both parties and by the defendant’s psychiatrist, the court rendered its decision.

Both parties and the guardian ad litem for the defendant filed motions for articulation of the court’s memorandum of decision. The trial court filed an amended memorandum pursuant to the defendant’s amended motion for articulation.

The court, in its articulation, stated that its financial awards were based upon its findings that the breakdown of the marriage was the defendant’s fault, that the fee of $33,000 sought by the defendant for legal and guardian ad litem fees should not be imposed on a person in the plaintiff’s financial position, and that in the eighteen years the parties were separated, the defendant had made no claim for alimony and had not disclosed her earnings. It also stated that the defendant had not contributed, after 1970, to the acquisition of the plaintiff’s assets, and, therefore, had no interest in them.

The defendant first argues that the trial court abused its discretion in awarding her time limited periodic alimony. She claims that the court failed to consider the mandatory statutory criteria for alimony awards and that its decision conflicts with the well established purposes of time limited alimony. The plaintiff argues that the trial court properly considered and weighed the criteria of General Statutes § 46b-82 and that the award of time limited alimony was within its broad discretion.

General Statutes § 46b-82 provides that a trial court, in determining whether alimony shall be awarded, and the duration and amount of the award, shall consider “the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties . . . .” As long as the trial court considers all of these statutory criteria, it may exercise broad discretion in awarding alimony. Carpenter v. Carpenter, 188 Conn. 736, 740-41, 453 A.2d 1151 (1982); O’Neill v. O’Neill, 13 Conn. App. 300, 312-13, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988).

“Our standard of review in domestic relations cases is a very narrow one. We will not reverse a trial court’s rulings with regard to . . . financial orders unless the court incorrectly applied the law or could not reasonably have concluded as it did.” O’Neill v. O’Neill, supra, 302. While the trial court need not make an express finding on each of the mandatory statutory criteria; Leo v. Leo, 197 Conn. 1, 5, 495 A.2d 704 (1985); Louney v. Louney, 13 Conn. App. 270, 273, 535 A.2d 1318 (1988); the record must contain some indication as to the reasoning of the court in making an alimony award of limited duration. Makarian v. Makarian, 2 Conn. App. 14, 16, 475 A.2d 337 (1984).

The court specifically stated that it limited the periodic alimony award to three years in order to give the defendant time to sell the house for an optimum price. The court had not ordered the defendant to sell the house nor was there any testimony indicating that the defendant would sell the house. No rationale based upon the evidence was proffered by the court for the particular duration of the periodic alimony. Without such a rationale, the award cannot stand. See O’Neill v. O’Neill, supra, 314.

The court made no express finding as to the defendant’s employability, but stated that the “[defendant worked for many years in a responsible position as a legal secretary and never attempted to seek alimony from [the] plaintiff until this action was started.” In fact, the defendant testified that she had worked only intermittently since 1970, that she had received welfare benefits for a time, and that her parents had helped support her for a period after the separation. She also testified that she has not worked at all since 1979 or 1980. The defendant’s psychiatrist testified that the defendant’s mental illness rendered her unemployable. No evidence was offered to show that the defendant is currently employable.

The traditional purpose of alimony is to meet one’s “continuing duty to support.” Blake v. Blake, 211 Conn. 485, 498, 560 A.2d 396 (1989); Rubin v. Rubin, 204 Conn. 224, 228, 527 A.2d 1184 (1987); Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982). Recently, however, courts have begun to limit the duration of alimony awards in order to encourage the receiving spouse to become self-sufficient. “Underlying the concept of time limited alimony is the sound policy that such awards may provide an incentive for the spouse receiving support to use diligence in procuring training or skills necessary to attain self-sufficiency.” Makarian v. Makarian, supra, 16; see also O’Neill v. O’Neill, supra, 313-14. Although time limited alimony awards are usually rehabilitative in purpose, there may be other valid reasons for awarding such alimony. No such valid reason exists here.

This is one of those instances in which the trial court abused its broad discretion by misapplying the law and making crucial findings that were not reasonably supported by the facts. McPhee v. McPhee, 186 Conn. 167, 177, 440 A.2d 274 (1982); Deteves v. Deteves, 2 Conn. App. 590, 592-93, 481 A.2d 92 (1984). The defendant is a sixty year old woman with serious mental limitations who has not worked in ten years, living with an adult child incapacitated by mental illness. There was no evidence to support the conclusion of the court that three years was an appropriate period of time for the duration of alimony.

Other findings of the court are also unsupported by the record or are the result of a misapplication of the law. From the defendant’s “bitter and erratic” trial testimony, the court found that she was the cause of the breakdown of the marriage. While cause is an appropriate factor to be considered pursuant to General Statutes § 46b-82, the demeanor of a party while testifying, particularly a party for whom the court has appointed a guardian because of admitted mental infirmities, cannot be converted into the cause for the breakdown of the marriage. Furthermore, the defendant’s failure to seek alimony in the past does not preclude her from seeking it incident to dissolution proceedings, although the court found that it did. Section 46b-82 has no such statutory criterion. See Deteves v. Deteves, supra. The denial or curtailment of alimony cannot rest upon the failure of a party to seek support during a period of separation.

The court also determined that the defendant could not share in the assets that the plaintiff had acquired after the parties had separated. While the court has discretion to allow or to disallow one spouse to share in the assets acquired by the other after separation; Papageorge v. Papageorge, 12 Conn. App. 596, 600, 533 A.2d 229 (1987); a court is not prohibited from awarding one spouse a share in the other’s assets no matter when acquired, even if the acquisition occurs after a separation. This is so for two reasons. First, the non-monetary contributions of one spouse, such as the primary care of children and the upkeep of the family home, may have enabled the other spouse to acquire or to retain assets; O’Neill v. O’Neill, supra, 311; and such contribution can continue after the parties’ separation. Second, assets are valued as of the date of dissolution, rather than as of the date of an earlier separation. Zern v. Zern, 15 Conn. App. 292, 296, 544 A.2d 244 (1988).

The court also determined that the defendant’s legal fees and guardian ad litem fees should not be paid by the plaintiff. Whether such expenses should be paid is ordinarily within the court’s discretion. See Turgeon v. Turgeon, 190 Conn. 269, 280-82, 460 A.2d 1260 (1983); Stoner v. Stoner, 163 Conn. 345, 355-56, 307 A.2d 146 (1972). In this case, since the financial awards must be retried, the issue of whether the defendant’s fees should be paid must, as part of the financial whole, also be left for a redetermination. See Sunbury v. Sunbury, 210 Conn. 170, 553 A.2d 612 (1988).

The defendant next claims that the trial court erred in failing to award her support pursuant to General Statutes § 46b-85. Section 46b-85 provides in pertinent part: “At the time of granting dissolution of a marriage to which one party is mentally ill or at any time thereafter; on application of either party or of the guardian or conservator of the mentally ill spouse, or of any person, town or other municipality charged with the support of the mentally ill spouse, or the commissioner of administrative services if the state is charged, the court may make such order requiring support of the mentally ill spouse, or security for support, as may be proper.”

The defendant’s mental health was a key issue at trial. While the court made no express findings on this issue, the memorandum of decision, articulation, and financial orders indicate that the court found that the defendant was not mentally ill and, therefore, did not order any supplemental support pursuant to § 46b-85.

In the fifth paragraph of its original memorandum of decision, the court stated that Juter expected the defendant’s mental condition to improve after the divorce. In fact, although Juter testified that the termination of divorce proceedings would remove an immediate source of stress, he also unequivocally stated that he did not see a chance of the defendant’s condition improving. The court also challenged the doctor’s credibility and his diagnosis of the defendant. In its original memorandum, the court found that the doctor was unaware of many basic aspects of the defendant’s ability to function on a day to day basis, such as her ability to drive a car, draw a will, and maintain her home. The transcript of Juter’s testimony belies these findings. His testimony indicated that he was aware that the defendant is able to drive, but that she is sometimes prevented from driving by anxiety and panic. Juter also testified that the defendant is “able to exist by muddling through, but the quality and the dysfunctional nature [of her behavior] is extremely hazardous.” He never testified about the defendant’s ability to draw a will.

In its amended memorandum issued pursuant to the defendant’s motion for articulation, the trial court conceded that it may have been mistaken about Juter’s familiarity with the defendant’s condition. It further conceded that, if the record clearly indicated that the court had been mistaken, the original memorandum of decision should be changed to eliminate the incorrect portion. The record does indicate that the court’s statements in the fifth paragraph were mistaken. The court stated in the amended memorandum that its reasons for not accepting Juter’s testimony were set out in the fifth paragraph of the original memorandum. If the erroneous statements in that paragraph were eliminated, any grounds for challenging Juter’s credibility or for rejecting his diagnosis of the defendant as mentally ill would also be eliminated, leaving no justification for the court’s conclusion that the defendant was not mentally ill.

The defendant claims that she is eligible for support under § 46b-85 based on the evidence introduced tending to prove her mental illness. The plaintiff argues that the defendant is not eligible for such support because the trial court properly found that she was not mentally ill. A threshold issue not addressed by the parties, however, is whether a mentally ill party who lives without supervision is eligible for direct support under the statute. In other words, even if the court should have concluded that the defendant was mentally ill, we must determine whether the defendant could be entitled to both alimony under General Statutes § 46b-82 and direct support under General Statutes § 46b-85 as a mentally ill spouse.

Section 46b-85 is part of chapter 815j of the General Statutes, which governs the dissolution of marriages in Connecticut. Part III of that chapter, in which § 46b-85 is found, contains provisions for the division of property and for the support of children and spouses in dissolution actions. The alimony statute, § 46b-82, is also found in part III of chapter 815j. The defendant’s claims for support under both §§ 46b-85 and 46b-82 inevitably raise the question of the relationship between the two statutes.

A key difference between the two sections is apparent from a plain reading. Section 46b-85 authorizes third parties charged with the support of a mentally ill party to a dissolution action to apply for support in that action from that party’s spouse. Implied in the statute is the authorization for direct support payments to those third parties. In contrast, alimony may be sought only by a spouse under § 46b-82.

In addition, § 46b-85 provides that the court may order support “on application of either party.” This provision is susceptible to two interpretations with two different consequences. It may be read as merely authorizing a mentally ill spouse to apply for support, with any resulting payments to be made to a third party responsible for or charged with the support of that spouse. Alternatively, the provision may be read as authorizing the mentally ill spouse both to apply for and to receive direct support payments. The latter interpretation would render a mentally ill spouse eligible for both alimony and a direct payment of support as a mentally ill spouse.

“ ‘Where the words of a statute fail to indicate clearly whether the provision applies in certain circumstances, it must be construed by this court . . . .’ ” Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 405, 528 A.2d 805 (1987). Our objective in construing the language of an ambiguous statute is to give effect to the apparent intent of the legislature. Norwich v. Silverberg, 200 Conn. 367, 370-71, 511 A.2d 336 (1986). “In our pursuit of that objective, we look to the language of the statute itself, its legislative history, and previous judicial construction.” Id.; see Mahoney v. Lensink, 17 Conn. App. 130, 134, 550 A.2d 1088 (1988), cert. granted, 210 Conn. 806, 554 A.2d 742-43 (1989).

Although an earlier version of § 46b-85 was first enacted in 1915 and was amended several times, no legislative history or prior judicial construction sheds light on the intent of the legislature in enacting the statute. We are left with the language of the statute to guide our analysis. While the provisions of §§ 46b-82 and 46b-85 are not in direct conflict, it is at least unclear which statute should be used to provide support for a mentally ill spouse who is not cared for by another, either physically or by management of financial affairs.

In attempting to reconcile ambiguous or potentially duplicative statutes, we make every attempt to construe a statutory scheme as a whole. See Powers v. Ulichny, 185 Conn. 145, 149, 440 A.2d 885 (1981). Because § 46b-82 is designed exclusively for direct payment to a spouse, and because its language requires a court to consider a party’s health, age, employability and needs in awarding alimony, the statute is well suited for the purpose of providing support for an independent but mentally ill spouse. The language of § 46b-85 indicates that its primary purpose is to allow third parties responsible for the support of a mentally ill person to seek contribution from that person’s spouse, and to prevent a capable spouse from escaping financial responsibility if a mentally ill spouse is under the care of a third party. Our interpretation of § 46b-85 as authorizing support payments only to third parties responsible for the support of a mentally ill spouse eliminates any confusion or duplication between the statutes and comports with the apparent intent of the legislature.

Since disturbing any portion of the financial awards in this case affects the entire financial scheme, including the failure to award attorney’s fees and guardian ad litem fees, the case must be remanded for a rehearing. Sunbury v. Sunbury, supra.

There is error, the judgment is set aside as to alimony and the division of property and the case is remanded for a rehearing on the questions of alimony, the division of property, and the award of counsel and guardian ad litem fees.

In this opinion the other judges concurred.

       The financial affidavit, dated April 28, 1988, indicates that the property is encumbered by a $43,000 mortgage, leaving equity of $177,000. In its memorandum of decision, the trial court valued the property at $140,000 without explaining the $80,000 discrepancy.

       Juter first met the defendant in 1972, when he was treating the parties’ son.

       The plaintiff had sought and was denied a divorce in a contested action in New York in 1976.

       The defendant also filed a motion for a new trial based upon the alleged failure of the court to clarify the issues. The trial court, Novack, J., properly denied the motion. The original memorandum and the court’s articulation are grist for appellate review, not a reason for a new trial. Judge Tierney did not rule on the motions for articulation by either the plaintiff or the guardian ad litem, but there is no claim on appeal that this lack of articulation affects the appeal.

       Even if the court had awarded time limited alimony for rehabilitative purposes, the award would have to be set aside. There was no evidence that the defendant is currently employable or will become employable in the future. See O’Neill v. O’Neill, 13 Conn. App. 300, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988); Deteves v. Deteves, 2 Conn. App. 590, 481 A.2d 92 (1984). An award of time limited alimony cannot provide an incentive for the defendant to acquire training and job skills, since her unemployability is not the result of a lack of training or skills.

       In Luttrell v. Luttrell, 184 Conn. 307, 439 A.2d 981 (1981), the only Connecticut case construing § 46b-85, the state had been receiving payments under the statute, since the divorce of the parties, for support of the defendant, who had been confined to a mental institution. The Supreme Court held that the Superior Court lacked jurisdiction under the statute to modify the original order rendered at the time of the divorce, or to require the plaintiff spouse to provide support for the defendant, who had since been cured of his illness and was no longer supported by the state. The holding hinged on the fact that the defendant was no longer mentally ill, and is not controlling in the present case.


source: Caselaw Access Project

author: Foti, J.

license: Public Domain

text:
    State of Connecticut v. Donald Scott
    (7735)
    Daly, Norcott and Foti, Js.

      Argued October 18, 1989
    decision released January 23, 1990

      Leopold P. DeFusco, special public defender, for the appellant (defendant).

      Donald A. Browne, state’s attorney, with whom, on the brief, was Stephen J. Sedensky III, for the appellee (state).
   Foti, J.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of the crimes of robbery in the third degree in violation of General Statutes § 53a-136 and larceny in the second degree in violation of General Statutes §§ 53a-119 and 53a-123 (a) (3). The defendant claims that the trial court erred (1) in instructing the jury concerning the elements of the robbery, and (2) in failing to give an adverse inference charge when the state did not call a witness. We. find no error.

After hearing the testimony of three witnesses, the jury could reasonably have found the following facts. On August 6,1987, at approximately 9:15 p.m., the victim exited the Stop & Shop supermarket in Fairfield with her ten year old daughter. As she was leaving the store, the victim was pushing a cart of groceries with both hands on the cart’s handle and her pocketbook hanging from her wrist. Suddenly, she felt a sharp pull at her pocketbook. The tugging was strong enough to pull both the victim and her cart of groceries to the ground. The victim resisted the purse snatcher as long as she was able by crooking her wrist to retain possession of the purse. She was dragged along the pavement with sufficient force to cause two fractures in her left wrist, a bruise on her right thigh and abrasions on the front of her knees and on the palm of her right hand. She finally released the bag to the assailant, a black man, who ran away with it. She did not get a good look at him.

Fearing for her mother’s safety, the victim’s ten year old daughter became hysterical during the purse snatch. She remained so distraught after the incident that she was unable to participate in the identification of her mother’s assailant.

On the same date, moments before the purse snatching, another shopper, P, had handed a shopping cart to a black man in front of the Stop & Shop. Just as P was about to enter the store, he heard a scream, turned and saw the man to whom he had just handed the cart struggling with the victim and finally obtaining her purse. P pursued the purse snatcher around the side of the building and watched him get into the passenger side of a small car. The driver and the purse snatcher immediately drove away. One week later, after viewing a photographic array at the Fairfield police station, P identified the defendant as the man he had seen steal the victim’s pocketbook and flee.

D, a friend of the defendant’s, drove him to the Fair-field Stop & Shop on the day of the incident between 9 and 10 p.m. in order for the defendant to obtain some money from a relative. D dropped the defendant off in front of the store and drove to the side of the building to wait for him. In a short time, the defendant returned to D’s car with something under his shirt. D later noticed that the object under the defendant’s shirt was a pocketbook.

The defendant first claims that the court erred in its jury instruction on the elements of the offense of robbery by including subdivision (2) of § 53a-133 of the General Statutes in its definition of robbery. He contends that the evidence offered by the state was sufficient only to establish guilt under subdivision (1) of that statute. In the alternative, the defendant argues that if the evidence presented was sufficient to support a finding that force was used to compel the victim to deliver up the purse, then the instruction was erroneous in that subdivisions (1) and (2) of the robbery statute are conceptually distinct and require a unanimity charge. We cannot agree with either claim.

The defendant first asserts that there was insufficient evidence presented at trial to prove the essential elements of robbery, that is, that the actor used or threatened “the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner ... to deliver up the property . . . . ” General Statutes § 53a-133.

Our Supreme Court has stated that “ ‘[w]here a person may have been convicted under more than one statutory alternative, the judgment cannot be supported unless the evidence was sufficient to establish guilt under each statutory provision which the trier may have relied upon.’ ” State v. John, 210 Conn. 652, 687-88, 557 A.2d 93, cert. denied, U.S. , 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989); quoting State v. Marino, 190 Conn. 639, 650-51, 462 A.2d 1021 (1983). “This rule is based on the principle that jurors are presumed to follow the instructions given by the judge.” State v. Williams, 202 Conn. 349, 363-64, 521 A.2d 150 (1987).

The defendant argues that the facts in the present case are strikingly similar in all relevant respects to those in State v. Williams, supra, and, therefore, that he should be granted a new trial as was the defendant in Williams. In Williams, however, the state conceded that the evidence was not sufficient to sustain a conviction under the second subdivision of § 53a-133. In the present case, the state makes no such concession.

Here, in striking contrast to Williams, the state presented evidence at trial to show that the defendant tugged so hard at the victim’s purse strap that it caused her to fall to the pavement. This evidence was sufficient for a reasonable jury to conclude that physical force was used to overcome her resistance to the taking of her purse. In addition, the state presented ample evidence to show that the defendant dragged the victim along the pavement before she finally released her purse to him. The jury could reasonably have concluded from this that the defendant used physical force to compel the victim to deliver up her property. Since the evidence submitted at trial was clearly sufficient to establish that the defendant overcame the victim’s resistance to the purse snatch, and that the victim was forced to deliver up her pocketbook, as required by subdivisions (1) and (2) of General Statutes § 53a-133, the trial court did not err in instructing on both statutory alternatives. State v. John, supra, 688-89.

The defendant also claims that because the jury may have disagreed on the manner in which the offense was committed, his right to a unanimous verdict was violated by the court’s failure to instruct the jury that it had to agree unanimously as to which of the statutory alternatives was the factual predicate for the offense. The defendant’s conclusion is premised on his claim that subdivisions (1) and (2) of the robbery statute are conceptually distinct. We cannot agree.

Because the defendant neither filed a request to charge nor excepted to the charge as given, we limit our review initially to determining whether the record supports his claim. State v. Golding, 213 Conn. 233, 239, 567 A.2d 823 (1989); State v. Horne, 19 Conn. App. 111, 136, 562 A.2d 43 (1989).

A specific unanimity charge is required only “if two conditions are met: (1) the alternative acts are conceptually distinct from each other; and (2) the state has presented supporting evidence on each alternative act.” State v. Bailey, 209 Conn. 322, 334, 551 A.2d 1206 (1988); see also State v. Anderson, 211 Conn. 18, 34, 557 A.2d 917 (1989); State v. Reyes, 19 Conn. App. 695, 705, 564 A.2d 309 (1989). In the case before us, the defendant’s claim must fail because the statute in question does not satisfy the first Bailey condition.

Contrary to the defendant’s assertion, “[b]oth subdivisions (1) and (2) of General Statutes § 53a-133 refer to the defendant’s purpose in using or threatening force. Subdivision (1) refers to his purpose of using or threatening force to prevent or overcome resistance to the taking of the property, or to its retention immediately after the taking. Subdivision (2) refers to his purpose of using or threatening force to compel the owner to deliver up property or otherwise to aid in the larceny.” State v. Horne, supra. Where, as here, both states of mind involved an intent to force or intimidate the victim to yield her property so as to permit its taking or retention by the defendant, these two states of mind are hardly conceptually distinct. See id.

We conclude that the record does not support the defendant’s claim of a conceptual distinction herein and, therefore, no further review is warranted.

The defendant’s final claim is that the trial court erred in failing to give a missing witness, or Seeondino, charge when the state failed to call the victim’s daughter as a witness.

The facts pertinent to the claim are not in dispute. The victim’s ten year old daughter was present when the incident happened. The child was hysterical and was screaming during the robbery and her parents would not permit her to participate in any identification procedure after the incident. The victim did not know whether her daughter had seen the person because the family did not discuss the situation very much thereafter. The daughter remained distraught after the incident and was under the care of a doctor because of it.

“Whether an absent witness has superior or peculiar information and whether an adverse inference can be drawn is a [preliminary] question of fact for the trier. Perl v. Case, 3 Conn. App. 111, 115, 485 A.2d 1331 (1985). This court cannot reverse or modify the trial court’s determinations of fact unless they are clearly erroneous. Buddenhagen v. Luque, 10 Conn. App. 41, 44, 521 A.2d 221 (1987).” State v. Williams, 20 Conn. App. 263, 266, 565 A.2d 1365 (1989). A negative inference may be drawn if a party fails to produce a witness who is available and would naturally have been produced by him. State v. Wood, 208 Conn. 125, 140, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988).

There is no question here that the victim’s daughter was available, but because her testimony would most likely have added nothing to the evidence already admitted, and because of the obvious psychological impact the incident had upon her, combined with her young age, the state chose not to call her as a witness. Further, the question of identity was the only contested issue at trial. Since three adults, namely, the victim, P and D, testified as to identity, this child’s testimony would have been no more than cumulative. It must also be noted that had the defendant wanted the child to testify it would have been as natural for him to produce this known and available witness as for the state to have done so. See State v. Brown, 169 Conn. 692, 705, 364 A.2d 186 (1975). Since the defendant made no effort to call the child as a defense witness, we must conclude that this decision was made as part of a defense trial strategy.

In light of the above, we hold that a reasonable and satisfactory explanation was given for the state’s failure to produce the victim’s ten year old daughter as a witness and we conclude that the record supports the court’s refusal to give a missing witness charge to the jury.

There is no error.

In this opinion the other judges concurred.

       The defendant was charged by amended information with robbery in the first degree in violation of General Statutes § 53a-134 (a) (1), but was found guilty of the lesser included offense of robbery in the third degree.

       General Statutes § 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

       Although the defendant did not except to this portion of the court’s charges to the jury at the trial, “a claim that the judge improperly instructed the jury on an element of an offense is appealable even if not raised at trial.” State v. Williams, 202 Conn. 349, 363, 521 A.2d 150 (1987).

       In Secondino v. New Haven Gas Co., 147 Conn. 672, 674-76, 165 A.2d 598 (1960), our Supreme Court held that a negative inference may be drawn when a party fails to produce a witness who is within his power to produce and would naturally have been produced by him. See State v. Williams, 20 Conn. App. 263, 266, 565 A.2d 1365 (1989).


author: O’Connell, J.

text:
    State of Connecticut v. Larry Holloman
    (7164)
    O’Connell, Norcott and Foti, Js.
    Argued October 11, 1989
    decision released January 23, 1990

      Mark Rademaeher, for the appellant (defendant).

      Vincent J. Dooley, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Roland Fas ano, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 and assault of a victim sixty or older in the first degree in violation of General Statutes § 53a-59a. The defendant was found not guilty of stealing a firearm in violation of General Statutes § 53a-212. The defendant claims that the court erred in denying his motion to suppress evidence and in excluding evidence that a third party may have committed the crime. We find no error.

At the hearing on the suppression motion, the court found the following facts. On February 14, 1987, a black male, approximately 6 feet 2 inches tall, medium build, wearing a three-quarter length green army jacket and a navy blue knit cap, entered a liquor store in West Haven and asked for a bottle of Wild Irish Rose wine.. As the elderly store clerk turned to the cooler, the robber brandished a hunting knife and demanded money. The robber stabbed the clerk in the abdomen, causing serious injury. The robber then dragged the clerk to the back of the store, forced him into a restroom and took his wallet. He then pushed the restroom door closed with his foot, leaving a bloody sneaker print behind. The robber left, taking with him $300, a Colt .38 caliber revolver and a bottle of rum. Upon leaving the store, he got into the passenger seat of an old dirty brown automobile variously described as a Datsun, Toyota or Austin-Marina.

The owner of an appliance store less than a mile from the liquor store heard news accounts of the robbery, including the descriptions of the robber and the getaway car. He remembered that on two occasions prior to the robbery, two men trying to sell him a used air conditioner came to his store in an automobile that he thought matched the description of the one involved in the robbery. In addition, he recalled that one of the men was tall, black, and wore a long green army jacket. On February 16, 1987, the same two men returned to the appliance store in a white Chevrolet Blazer. The store owner took the air conditioner from them, and while he was helping them bring the appliance into the store, he noted the Blazer’s Vermont license plate number. Later, he telephoned one of the men, who was eventually charged in connection with the liquor store robbery, to complain that the air conditioner did not work and to arrange for the men to take the appliance back. The store owner then called the police, and four officers were assigned to stake out the appliance store to await the men’s return. In the meantime, the police checked the Vermont registration number and learned that it was not issued for the Blazer.

The two men arrived at the appliance store in the Blazer and retrieved the air conditioner. As they started to drive away, police officers pulled them over to the side of the road. The men were ordered out of the car, at which point the officers observed that the ignition had been “popped,” leading them to believe that the car was stolen. The alleged accomplice, who was driving the vehicle, admitted to the officers that his driver’s license was under suspension. While retrieving the title and registration of the car from the glove compartment, one officer noticed a green army jacket with blood stains in the right cuff area and empty bottles of Wild Irish Rose wine in the rear of the vehicle. The officer also noticed that the defendant, who was a passenger, fit the general description of the liquor store robber.

The two men were then transported to the West Haven police department where the alleged accomplice gave a statement. He said that he owned an Austin-Marina automobile in which he had driven the defendant to the scene of the robbery, and that it was the defendant who entered the liquor store and committed the actual robbery and assault. Thereafter, the defendant was formally placed under arrest for the liquor store robbery and the assault. During the booking process, officers seized the defendant’s pants and sneakers, which appeared to be bloodstained.

I

The first claim of error concerns the denial of the defendant’s motion to suppress his pants and sneakers, which were seized without a warrant. Relying on Wong Sun v. United States, 371 U.S. 471, 484-86, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963), the defendant claims that this evidence is the tainted fruit of an illegal arrest. He argues that the arresting officers stopped the car without probable cause to arrest him for the liquor store robbery, that they illegally arrested him before discovering evidence linking him to the robbery and, therefore, that any evidence seized was the result of an unlawful arrest. We disagree.

The police may momentarily detain a person for investigative purposes if they have a reasonable and articulable suspicion that he has engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. Marino, 17 Conn. App. 677, 682, 555 A.2d 455, cert. denied, 211 Conn. 803, 559 A.2d 1138 (1989). In light of the officers’ knowledge that the Vermont license plate did not belong on the Blazer, there was probable cause to believe that the driver was violating the motor vehicle statute prohibiting misuse of plates. General Statutes § 14-147 (c).

Moreover, the officers reasonably suspected that the two men were in possession of a stolen car, on the basis of their knowledge that the Vermont license plate on the vehicle was registered to a different vehicle. They were therefore justified in stopping the vehicle to investigate whether or not it was stolen. See State v. Millett, 8 Conn. App. 467, 513 A.2d 191, cert. denied, 201 Conn. 809, 516 A.2d 886 (1986).

Finally, on the basis of the tip they had received from the appliance store owner, the officers reasonably suspected that the two men in the car had committed the liquor store robbery. Reasonable cause for a stop can be based on information supplied by a third party even though the informant’s unverified tip may not supply probable cause for the issuance of an arrest warrant. “The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape.” Adams v. Williams, 407 U.S. 143, 145, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972). Hence, the stop was a justifiable part of the police investigation of the liquor store robbery.

The officers did not immediately arrest the two men; rather., they subjected the men to a reasonable investigatory stop. See State v. Bowden, 15 Conn. App. 539, 542-46, 545 A.2d 591, cert. denied, 209 Conn. 810, 548 A.2d 438 (1988). The defendant argues to the contrary, that the men were immediately arrested and that the officers’ explanations of why they stopped the Blazer were merely pretextual. He contends that he was arrested when the police stopped the Blazer because the officers had their revolvers drawn when they ordered the occupants out of the car. The officers, however, were aware that an armed robbery in which a handgun was stolen had recently occurred in the neighborhood. “A police officer ‘ “need not defer . . . protective measures to the point of peril.” ’ ” State v. Escobales, 16 Conn. App. 272, 275, 547 A.2d 553, cert. denied, 209 Conn. 827, 552 A.2d 434 (1988), cert. denied, 490 U.S. 1023, 109 S. Ct. 1753, 104 L. Ed. 2d 189 (1989), citing United States v. Coates, 495 F.2d 160, 165 (D.C. Cir. 1974). Furthermore, the mere fact that the stopping officers had their guns drawn did not automatically convert the Terry stop into an arrest. United States v. Nargi, 732 F.2d 1102, 1106 (2d Cir. 1984); State v. Wylie, 10 Conn. App. 683, 687-88, 525 A.2d 528, cert. denied, 204 Conn. 807, 528 A.2d 1154 (1987).

The defendant concedes that, as a passenger without an ownership interest in the Blazer, he did not have an expectation of privacy in the interior of the vehicle, and accordingly lacks standing to challenge the legality of the manner in which the officers obtained incriminating evidence from the vehicle immediately after the stop. State v. Marino, supra, 684. Thus, the court did not err in not suppressing the three-quarter length army jacket with bloodstains on one sleeve and the empty bottles of Wild Irish Rose wine that were in the rear of the Blazer.

After discovering the incriminating items, the officers took the defendant and the accomplice into custody without informing them that they were under arrest, and brought them to the West Haven police station. Because the officers discovered evidence that further aroused their suspicions, they were justified in prolonging the stop and expanding their investigation at the scene. State v. Aversa, 197 Conn. 685, 692, 501 A.2d 370 (1985). A person temporarily detained by police for investigation at a Terry stop, however, cannot be transported to police headquarters for further investigation unless at the time he is taken from the scene of the stop there is probable cause to believe that he has committed a crime. Dunaway v. New York, 442 U.S. 200, 211-16, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979). In the present case, therefore, the defendant was arrested when he was taken from the scene of the stop to police headquarters. Thus, the question is whether there was probable cause for arrest at that time.

The officers had probable cause to arrest the defendant once they discovered the items in the back of the Blazer. General Statutes § 54-lf (b) provides that a police officer may arrest, without a warrant, “any person who the officer has reasonable grounds to believe has committed or is committing a felony.” The term “reasonable grounds,” within the meaning of § 54-lf (b), has been interpreted to mean “probable cause,” as that term has been defined by judicial opinion. State v. Dennis, 189 Conn. 429, 431, 456 A.2d 333 (1983). Probable cause to arrest exists when “(1) there is probable cause to believe a crime has been committed; and (2) there is probable cause to believe that the person to be arrested committed that crime.” State v. DeChamplain, 179 Conn. 522, 529, 427 A.2d 1338 (1980). “ ‘ “The quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction. Our cases have made clear that ‘[tjhere is often a fine line between mere suspicion and probable cause, and “[tjhat line necessarily must be drawn by an act of judgment formed in light of the particular situation and with account taken of all the circumstances.” ’ ” ’ ” State v. Magnotti, 198 Conn. 209, 213, 502 A.2d 404 (1985).

The facts and circumstances known to the investigating officers provided them with reasonable ground to believe that the defendant had committed the robbery. See State v. McNellis, 15 Conn. App. 416, 423, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988). The owner of the appliance store called the police and reported that two men, one of whom fit the description that he had heard on the local news of the liquor store robber, had tried to sell him a used air conditioner, and that he had asked them to return later in the day. When the men returned in the car the store owner had described, the police noticed that the passenger in the vehicle was a large black male, similar to the liquor store robber. Although the officers did not have probable cause to arrest at that time, they had an abundance of legitimate reasons to pull the vehicle over for further investigation. The observation of the bloodstained army jacket and the empty bottles of Wild Irish Rose wine, together with the fact that the defendant matched the description of the robber, gave the officers probable cause to believe it was the defendant who had robbed the liquor store. State v. Carter, 189 Conn. 611, 619, 458 A.2d 369 (1983).

Because the arrest of the defendant was supported by probable cause, the officers could lawfully engage in a follow-up search of the defendant at the police station; “searches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention.” United States v. Edwards, 415 U.S. 800, 804, 94 S. Ct. 1234, 39 L. Ed. 2d 771 (1974); State v. Magnotti, supra, 214. In the present case, as in United States v. Edwards, supra, the police took articles of clothing from the suspect during detention at the police station. See also State v. Copeland, 205 Conn. 201, 208-13, 530 A.2d 603 (1987); State v. Kaplan, 20 Conn. App. 183, 185-86, 565 A.2d 11 (1989).

We find no error in the trial court’s denial of the defendant’s motion to suppress the evidence that the officers had obtained without a search and seizure warrant.

II

The defendant next claims that the trial court erred in excluding evidence proffered to establish that a third party had committed the crimes with which he was charged. The defendant offered evidence that the accomplice and the third party were friends and lived in the same building, that the third party knew that the accomplice’s Austin-Marina could be operated without a key, that the accomplice was aware that people used his car without his permission, that the accomplice was not driving his Austin-Marina on the day of the robbery, and that he had left it at his residence. In an offer of proof out of the jury’s presence, the defendant maintained that the third party’s physical description matched the description of the robber given by eyewitnesses to the crime. The court excluded the third party’s physical description from evidence.

A defendant may introduce evidence that a third party, and not the defendant, committed the crime with which the defendant is charged; State v. Echols, 203 Conn. 385, 392, 524 A.2d 1143 (1987); “as long as there is some evidence which directly connects the third party with the crime.” Siemon v. Stoughton, 184 Conn. 547, 555, 440 A.2d 210 (1981); State v. John, 210 Conn. 652, 670, 557 A.2d 93, cert. denied, U.S. , 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989). It is not sufficient, however, if the testimony merely affords a possible suspicion against another person. State v. Watkins, 14 Conn. App. 67, 73, 540 A.2d 76, cert. denied, 208 Conn. 804, 545 A.2d 1102 (1988). In the present case, there was a total absence of any connection between the third parly and the crime. Until such a connection was established, the third party’s physical description was not relevant, and the trial court did not abuse its discretion in excluding it.

There is no error.

In this opinion the other judges concurred.

       The defendant was also charged with assault in the first degree in violation of General Statutes § 53a-59. While allowing prosecution for both assault in the first degree and assault in the first degree of a victim sixty or over, § 53a-59a prohibits conviction of both crimes for the same incident.

       The defendant made two motions to suppress evidence, one pertaining to items seized without a warrant and one pertaining to items seized with a warrant. This appeal relates only to the warrantless seizure.

       In State v. Dukes, 209 Conn. 98, 122, 547 A.2d 10 (1988), the court held that after stopping an automobile for a traffic infraction police may require the occupants to exit the vehicle. In this case, the apparent motor vehicle violation was not an infraction, but a misdemeanor with a possible maximum penalty of a $100 fine or thirty days imprisonment or both. General Statutes § 14-147 (c). A fortiori, the officers were justified in ordering the occupants out of the vehicle.


author: Spallone, J.

text:
    State of Connecticut v. Edward A. Dollinger
    (7251)
    Spallone, Daly and O’Connell, Js.

      Argued October 12, 1989
    decision released January 23, 1990

      William F. Gallagher, with whom, on the brief, were Joseph F. Buckley, Kerrie C. Dunne and Robert P. Borquez, for the appellant (defendant).

      CarolynK. Longstreth, deputy assistant state’s attorney, with whom were Michael A. Pepper, deputy assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, and Cecilia Weiderhold, deputy assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals his conviction, after a jury trial, of the crimes of sexual assault in the second, third and fourth degrees and of risk of injury to a child, in violation of General Statutes §§ 53a-71 (a) (1), 53a-72a (a) (2), 53a-73a (a) (1) (A) and 53-21, respectively. On appeal, the defendant claims that the trial court improperly admitted hearsay evidence, offered by third parties, of statements made by the infant victim, and that the court improperly denied various trial and posttrial motions. The defendant claims that the trial court erred (1) in ruling that the victim’s statement identifying her abuser, made to a physician, was admissible under the medical treatment exception to the hearsay rule, (2) in ruling that the victim’s statement identifying her abuser, made to her mother and to her mother’s boyfriend, was admissible under the spontaneous utterance and residual exceptions to the hearsay rule, (3) in denying the defendant’s motions for judgment of acquittal on the ground of insufficient evidence, and (4) in denying the defendant’s motion to modify a protective order to permit supervised visitation with the victim. We find no error.

The jury could reasonably have found the following facts. The victim, V, was born on June 7,1984, to Sandra Bondos Cherry and Joseph Dollinger, the defendant’s brother. V was in the legal custody of and resided with her paternal grandparents from March, 1985 until October 4,1986, when Cherry was awarded legal custody. Thereafter, V resided with her mother but was daily in the care of her grandparents while her mother was at work. Accordingly, the twenty-eight month old V was present in the grandparents’ household during the first two weeks of October, 1986, from 6 a.m. until between 4:30 and 6 p.m. The defendant, Edward Dollinger, resided in the Dollinger household with V from March, 1985, through and including September, 1986, when he changed residences. Cherry, however, observed the defendant at his parents’ home on frequent occasions in October, 1986.

On the evening of October 7,1986, V approached her mother’s boyfriend, Randall Kristoff, as he emerged from the shower in Cherry’s home and touched and blew on his genitals. When Cherry joined the two from her own shower, Kristoff asked Y to “show mommy what you did.” V thereupon pulled down Kristoff’s pajamas and underwear, fondled his genitals, pulled the garments back up and said, “All better.” V also removed Cherry’s towel, rubbed Cherry’s genital area and said that her mother was “all fixed up.”

Cherry asked V who had showed her this and V answered, “Eddie.” When asked what else she had learned, V took off her own clothes, lay on her back, spread her legs and fondled herself. To the best of Cherry’s knowledge, the defendant was the only person that V knew named Eddie.

V was taken to her grandparents’ home for day care on the next two days. On the evening of October 9, 1986, while changing V’s diaper, Cherry noticed that V’s vaginal area was bright red and sore and heard V complain of pain in the area. V was taken to the Griffin Hospital emergency room where she was examined by Ashokkumr Shah, a physician, who reported finding redness around the vulva and anus and an enlarged hymenal opening. Shah took V’s medical history from Cherry and asked V, “What happened?” She responded by putting her finger in her vagina and then in her anus, and said, “Uncle Eddie did this.”

At the defendant’s trial, evidence was introduced on the sexual abuse of V and the identity of her abuser. V herself did not testify, having been judged incompetent to do so at a prior competency hearing. Police Officer Nancy Cabelus testified to an interview with V in which V used anatomically correct dolls to demonstrate various acts of oral and vaginal sexual intercourse. The Griffin Hospital record of V’s treatment was admitted into evidence and Shah was qualified as an expert on the identification of sexually abused children. He testified that, to a reasonable medical certainty, V’s injuries were caused by sexual molestation. He stated that the injuries to the vulva and anus had occurred during the twenty-four to forty-eight hours prior to his examination of V, but he could not specify when the hymenal enlargement had occurred. Over the defendant’s objections, Shah, Cherry and Kristoff were all permitted to testify as to V’s statements to them on the identity of her abuser. The defendant was convicted on all counts and this appeal followed.

I

The defendant’s first claim on appeal asserts that it was error to admit V’s hearsay statements into evidence through the testimony of the doctor under the medical treatment exception to the hearsay rule. This long standing exception allows into evidence out-of-court statements made by a patient to a physician as long as (1) the declarant was seeking medical diagnosis or treatment, and (2) the statements are reasonably pertinent to these ends. State v. Wood, 208 Conn. 125, 134, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988); State v. Maldonado, 13 Conn. App. 368, 372, 536 A.2d 600, cert. denied, 207 Conn. 808, 541 A.2d 1239 (1988); C. Tait & J. LaPlante, Connecticut Evidence, (2d Ed. 1988) § 11.12.3.

Because statements concerning the cause of injury or the identity of the person responsible are generally not germane to treatment, they are not allowed into evidence under the medical treatment exception. We have, however, recognized an exception to that restrietion. “[I]n cases of sexual abuse in the home, hearsay-statements made in the course of medical treatment which reveal the identity of the abuser, are reasonably pertinent to treatment and are admissible.” State v. Maldonado, supra, 374. If the sexual abuser is a member of the child victim’s immediate household, it is reasonable for a physician to ascertain the identity of the abuser to prevent recurrences and to facilitate the treatment of psychological and physical injuries. Id., 373-74.

In this case, the court ruled that V’s statements to the doctor met the requirements of the Maldonado exception and so were admissible hearsay. The evidence supplied by Shah, by the hospital records and by Officer Cabelus supported the finding that the child had been sexually abused. The evidence supplied by the defendant’s mother supported the finding that the Dollinger home was the principal residence of both V and the defendant between March, 1985, and October 1, 1986. The court further found that Cherry had taken V to the hospital for purposes of treatment.

The defendant does not dispute that V’s identification of the defendant to the doctor was pertinent to treatment, but rather alleges that Cherry was not seeking medical treatment in bringing V to the hospital. The defendant claims that Shah provided no treatment of V and that Cherry’s motive in bringing V to the hospital was an anticipated need for a medical witness for a subsequent criminal prosecution of the defendant and for her custody dispute with V’s paternal grandparents. The defendant argues, therefore, that V’s statements to the doctor were erroneously admitted into evidence. We disagree.

The medical treatment exception to the hearsay rule requires that the statements be both pertinent to treatment and motivated by a desire for treatment. In appropriate cases, all that is necessary to admit identification statements under the Maldonado exception is that the declarant’s motive in making the statements be consistent with the purpose of obtaining medical treatment. State v. Maldonado, supra, 372. “Such a test ensures that the information being allowed into evidence was rendered with a guarantee of trustworthiness sufficient to justify an exception to the hearsay rule.” Id. The rationale of the exception is that “the patient’s desire to recover his health . . . will restrain him from giving inaccurate statements to a physician employed to advise or treat him.” Brown v. Blauvelt, 152 Conn. 272, 275, 205 A.2d 773 (1964). The exception does not apply “where the physician is employed by the injured party merely to testify on his behalf.” Id.

The test focuses on the declarant’s motives. Even if V was too young to formulate consciously the motive of advancing her own health by being truthful with the doctor, the facts and circumstances here are consistent with that purpose. V’s complaints of pain, coupled with the physical manifestations of injury could have led the doctor, an expert in child sexual abuse, to conclude that the child was aware of her discomfort and her need for medical attention. Like the three and one-half year old victim in Maldonado, V at nearly two and one-half years, was old enough to understand what she was being asked, and she responded in an age-appropriate manner without coaching. State v. Maldonado, supra.

Notwithstanding the defendant’s speculations that Cherry employed Shah in anticipation of litigation, the court reasonably accepted that Cherry was seeking treatment when she brought her injured child to the hospital. The defendant has failed, therefore, to establish that the court abused its discretion in admitting V’s statements made to a treating physician on the identity of her abuser as a medical treatment exception to the rule against hearsay.

II

The defendant next claims that it was error to admit V’s hearsay statements into evidence through the testimony of Cherry and Kristoff. V’s statements to her mother and her mother’s boyfriend, identifying the defendant as V’s abuser, were admitted under the excited utterance and residual exceptions to the hearsay rule. We agree with the defendant that the court erred in finding that V’s statement qualified as an excited utterance, but we find that the statement was properly admitted under the residual exception.

A

The excited utterance exception admits spontaneous statements made following a startling occurrence and relating to that occurrence. C. Tait & J. LaPlante, supra, § 11.11.1. “ ‘The ultimate question is whether the utterance was spontaneous and unreflective and made under such circumstances as to indicate absence of opportunity for contrivance and misrepresentation.’ ” Mei v. Alterman Transport Lines, Inc., 159 Conn. 307, 315, 268 A.2d 639 (1970); Cascella v. Jay James Camera Shop, Inc., 147 Conn. 337, 342, 160 A.2d 899 (1960). These are questions for the trial judge, and his conclusion controls unless it is an unreasonable exercise of discretion. State v. Chesney, 166 Conn. 630, 634, 353 A.2d 783, cert. denied, 419 U.S. 1004, 95 S. Ct. 324, 42 L. Ed. 2d 280 (1974); Bodak v. Masotti, 14 Conn. App. 347, 353, 540 A.2d 719 (1988).

In this case, no foundation was laid for the admissibility of V’s statement as an excited utterance. No testimony was presented to show that V’s statement was made “under circumstances of physical shock or nervous excitement . . . and before reasoned reflection had taken place.” Rockhill v. White Line Bus Co., 109 Conn. 706, 708, 145 A. 504 (1929). When V identified the defendant to Cherry and Kristoff, she did not appear to be in any distress. She acted playful and proud of what she had learned and the tone of her statement was more consistent with composure than excitement and spontaneity.

Further, there is nothing in the record from which the court could have found that the startling occurrence and the statement were contemporaneous. Rockhill v. White Line Bus Co., supra (time interval is often decisive factor). The state argues that Shah’s testimony that some of V’s injuries were inflicted twenty-four to forty-eight hours before his October 9 examination of V provides evidence of the time factor, although the state did not refer to Shah’s testimony when laying the foundation for the admission of V’s excited utterance. Nor would it have been persuasive. On Shah’s time estimate, the latest abuse had occurred sometime between October 7 and 8. V’s October 7 statement, therefore, could have been made within hours of the latest abuse, or on the day before the abuse. Without a foundation that V’s statement was made under the stress of and related to a recent startling event, the declaration is a “mere recital of a past event and [is] inadmissible . . . .” Cascella v. Jay James Camera Shop, Inc., supra, 341.

B

V’s statement was admitted into evidence through Cherry and Kristoff on the alternative ground that it qualified as a residual exception to the hearsay rule. This exception admits into evidence statements that are technically hearsay and which do not fit within any traditional exception. State v. Sharpe, 195 Conn. 651, 664, 491 A.2d 345 (1985); State v. Stepney, 191 Conn. 233, 249-50,464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984); C. Tait & J. LaPlante, supra, § 11.25. Such statements are admissible provided that (1) there is a reasonable necessity for admission, and (2) there is an adequate basis to believe the statements are as reliable and trustworthy as other admissible hearsay. State v. Sharpe, supra, 665.

The necessity prong is met when the facts in the statement will be lost unless admitted as hearsay, either because the declarant is unavailable or because there is no equally probative alternative source. Id.; In re Jason S., 9 Conn. App. 98,106, 516 A.2d 1352 (1987); 5 Wigmore, Evidence (Chadbourne Rev. 1974) § 1421. The statement must also contain information necessary to the resolution of the case. State v. Erhardt, 17 Conn. App. 359, 368, 553 A.2d 188 (1989).

In this case, V was adjudged incompetent to testify and so was unavailable, and her statement was offered to prove an essential material fact, namely the identity of her abuser. Despite the defendant’s claim that it was unnecessary to admit V’s identification of the defendant through Cherry and Kristoff because Shah had previously testified to a similar identifying statement, the court could reasonably have found that the statements were not equally probative. V’s statement to Cherry and Kristoff was the first identification of the defendant under circumstances which lent the statement “ ‘particularized guarantees of trustworthiness’ State v. King, 187 Conn. 292, 315, 445 A.2d 901 (1982); as required by the second prong of the test for admissibility.

This court has not previously had an opportunity to analyze the criteria for determining the reliability of hearsay statements by child abuse victims before admission into evidence under the residual exception. This exception is not to be treated as a broad license to admit hearsay inadmissible under other exceptions, and is to be used very rarely and only in exceptional circumstances. United States v. Medico, 557 F.2d 309, 315 (2d Cir. 1977). The exception, however, is particularly well suited for the admission of statements by victims of child abuse and has been used in federal and state courts for this purpose. See, e.g., United States v. Dorian, 803 F.2d 1439 (8th Cir. 1986); United States v. Nick, 604 F.2d 1199 (9th Cir. 1979); State v. Robinson, 153 Ariz. 191, 735 P.2d 801 (1987); Bertrang v. State, 50 Wis. 2d 702, 184 N.W.2d 867 (1971). See gem erally Note, “A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases,” 83 Col. L. Rev. 1745 (1983). The victims are often unable to testify and their statements are often inadmissible, as here, under other exceptions to the hearsay rule. United States v. Dorian, supra, 1443; State v. Robinson, supra, 204-205.

In contrast to the excited utterance exception, the residual exception avoids the undue reliance on spontaneity and contemporaneousness as indicators of trustworthiness, and considers several factors to be weighed for determining admissibility of out-of-court statements by child victims of abuse. These factors include the age of the child, the nature of the assault, the presence of physical evidence of that assault, the relationship of the child to the defendant, the spontaneity of the statement, the reliability of the statements themselves and the reliability of the testifying witness. Bertrang v. State, supra, 706-708.

We find V’s statement to Cherry and Kristoff, under these criteria, to be reliable and trustworthy. This twenty-eight month old child demonstrated sexual behavior and knowledge inappropriate for her age, supporting the common sense judgment that she was not fabricating behavior she could have learned only from an adult. “[Cjommon sense suggests that ‘[s]ome of the most powerful potential evidence . . . lies in the child’s prior out-of-court statements. When a child first reveals that there has been sexual abuse, the content and manner of the revelation is often striking in its clarity and ring of truth.’ ” State v. Robinson, supra, quoting G. Berliner & M. Barbieri, “The Testimony of Child Victims of Sexual Assault,” 40 J. Soc. Issues 125,133 (1984). The simplicity, innocence and unselfconsciousness of V’s behavior and identification of the defendant belie calculation or fabrication and carry just this ring of truth. See also United States v. Dorian, supra, 1445; United States v. Nick, supra, 1204.

V’s identification of “Uncle Eddie” in response to Cherry’s question may be considered spontaneous and reliable as long as there is no indication that V was coached, interrogated or otherwise prompted. See People v. Straight, 430 Mich. 418, 424 N.W.2d 257 (1988); State v. Wallace, 37 Ohio St. 3d 87, 524 N.E.2d 466 (1988). The reliability of V’s statement to Cherry and Kristoff was corroborated by physical evidence. See United States v. Nick, supra. Moreover, the defendant had ample opportunity to cross-examine the testifying witnesses, Cherry and Kristoff, for whatever bias or ulterior motives the defendant alleges affected their credibility. See United States v. Bailey, 581 F.2d 341, 349 (3d Cir. 1978).

In light of the unavailability of the hearsay declarant, the probativeness of the statement, the presence of assurances of reliability and trustworthiness and the opportunity to examine the witnesses, we find that the court properly admitted V’s identification of the defendant into evidence under the residual exception to the hearsay rule.

Ill

That V’s statements were admissible hearsay is dis-positive of the defendant’s third claim that the court erroneously denied his motions for judgment of acquittal. V’s statements identifying the defendant as her abuser, made to Shah, Cherry and Kristoff, were properly put into evidence. Construing such testimony and all the other evidence in a manner most favorable to sustaining the verdict leads to the conclusion that the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt. State v. Scielzo, 190 Conn. 191, 196, 460 A.2d 951 (1983); State v. Melillo, 17 Conn. App. 114, 117, 550 A.2d 319 (1988).

IY

Finally, the defendant claims that the trial court erred in denying his motion to modify the protective order prohibiting contact between the defendant and the victim. After the defendant was convicted in this trial of sexually molesting his niece, V, and during the pendency of his appeal to this court, the defendant moved that the protective order be modified so as to permit supervised visitations between the victim and the defendant. The motion was premised on the ground that such visitation would be in the best interests of the child. After an evidentiary hearing, the court denied the motion and the defendant filed an amended appeal pursuant to Practice Book § 4006.

This allegation of error need not be discussed at any length. The party seeking a change of custody (here visitation rights) bears the burden of proving the change to be in the child’s best interest. See Kearney v. State, 174 Conn. 244, 249, 386 A.2d 223 (1978). The defendant is a convicted felon, found guilty of sexually abusing the very victim with whom he seeks visitation rights. This factor alone is a sufficient basis to support the trial court’s denial of the defendant’s motion.

In summary, the trial court did not err in allowing the victim’s testimony into evidence under the medical treatment and residual exceptions to the hearsay rule. In denying the defendant’s motions for judgment of acquittal and for modification of the protective order, the trial court acted properly and in accordance with applicable law.

There is no error.

In this opinion the other judges concurred.

       The state argues that children may manifest shock and excitement differently than adults, citing cases from a variety of jurisdictions illustrating a wide range of behavior that supported findings of excited utterances. These cases, however, all indicate that the child was under some degree of emotional distress. See, e.g., People v. Foreman, 161 Mich. App. 14, 20, 410 N.W.2d 289 (1987) (sleeplessness and bed wetting); People in Interest of O. E. P., 654 P.2d 312, 318 (Colo. 1982) (prolonged crying); State v. Ritchey, 107 Ariz. 552, 556, 490 P.2d 558 (1971) (unusual and depressed conduct).

       The state again cites foreign cases to support its argument that the time between event and statement may be less important in child abuse cases. See, e.g., People v. Foreman, 161 Mich. App. 14, 410 N.W.2d 289 (1987) (one month interval); State v. Noble, 342 So. 2d 170, 172 (La. 1977) (two day interval). Connecticut courts have not so relaxed the requirement of temporal proximity; see Rockhill v. White Line Bus Co., 109 Conn. 706, 708, 145 A. 504 (1929) (three minute interval too long); even with children’s statements; see Bodak v. Masotti, 14 Conn. App. 347, 353, 540 A.2d 719 (1988) (twenty minute interval too long).

       In State v. Sharpe, 195 Conn. 651, 491 A.2d 345 (1985), the statements admitted under the residual exception to the hearsay rule were made by an adult. The residual exception was offered as an alternative ground for admitting the child abuse victim’s statements to the doctor in State v. Maldonado, 13 Conn. App. 368, 536 A.2d 600, cert. denied, 207 Conn. 808, 541 A.2d 1239 (1988), but this issue was not reached. The court in In re Jason S., 9 Conn. App. 98, 516 A.2d 1352 (1987), found that because the child was available to testify, there was no necessity for admitting the abused child’s hearsay statements under the residual exception. The court, however, noted that the residual exception might be appropriately used in other circumstances. Id., 106 n.3.

       See Note, “A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases,” 83 Col. L. Rev. 1745, 1756-57 (1983), for a discussion of why the prerequisites of spontaneity and contemporaneousness are particularly difficult to meet in admitting statements by child abuse victims under the excited utterance exception.


author: Lavery, J.

text:
    Warren Campbell v. Walter Palmer et al.
    (7828)
    Borden, Foti and Lavery, Js.
    Argued November 1, 1989
    decision released January 23, 1990

      Michael E. Wolf, with whom, on the brief, was Mark R. Leder, for the appellant (plaintiff).

      David S. Williams, with whom, on the brief, were Wayne G. Tillinghast and Jeffrey R. Godley, for the appellee (defendant John A. Tighe).
   Lavery, J.

This is a medical malpractice action brought by the plaintiff against the defendant physicians for failing to diagnose rectal cancer. The trial court granted the defendant’s motion for summary judgment filed by the defendant radiologist, John A. Tighe, finding that the plaintiff’s expert never stated, either in his deposition or his affidavit, that the defendant was guilty of malpractice or that he deviated from the applicable standard of care. The plaintiff’s appeal followed.

The plaintiff claims that the trial court erred (1) in granting Tighe’s motion for summary judgment, (2) in concluding that the plaintiff’s expert did not raise a factual question as to Tighe’s deviation from the standard of care, (3) in ruling that Tighe would suffer undue prejudice if the plaintiff were allowed to proceed to trial or redepose the plaintiff’s expert, (4) in failing to view the evidence in the light most favorable to the nonmoving party, and (5) by abusing its discretion in determining that there was no factual issue as to the plaintiff’s expert opinion. We agree with the plaintiff that his expert did raise a genuine issue of fact as to the standard of care and Tighe’s deviation from it and, therefore, find error.

The documentation submitted in connection with Tighe’s motion for summary judgment included the deposition of the plaintiff’s expert, R. Harlow Herman-son, a radiologist, a letter of opinion from Hermanson dated June 15,1987, and a sworn statement from Hermanson in the form of a letter to the plaintiff, dated December 15,1989, explaining the answers in his deposition.

The following facts are relevant. In April, 1985, the plaintiff was referred to Tighe for a barium enema procedure. Tighe’s report to the referring physician did not indicate that any growths or lesions were discovered. In January, 1986, the plaintiff, after a three week period of rectal bleeding, went to another physician, who performed a sigmoidoscopy procedure, which revealed that the plaintiff had a large hemorrhagic malignant mass in the area of his rectum.

The plaintiff brought this medical malpractice action against the defendants for failure to diagnose the rectal cancer. After a series of discovery motions by Tighe, the trial court granted his motion in limine precluding the plaintiff from relying on testimony of any expert witness other than Hermanson on the standard of care.

Hermanson’s initial report found that Tighe’s barium enema procedure was inadequate to exclude pathology and that the procedure should have been repeated and a sigmoidoscopy suggested to the patient. In September, 1988, Tighe deposed Hermanson. Tighe asked Hermanson whether Tighe had committed medical malpractice. Hermanson did not respond in the affirmative but he did testify that Tighe’s procedure was not the way he would have done it and “not the way most of the people [he knew] would have acted.” He testified that it was his opinion that the examination as a whole was inadequate. He also testified to the additional steps that a radiologist of adequate competency would have taken, namely, a repeat examination and a sigmoidoscopy or colonoscopy.

After the deposition, Tighe moved for summary judgment on the ground that no genuine issue of fact existed between the parties because the plaintiff did not present an expert that would testify that Tighe’s conduct deviated from the standard of care. The plaintiff filed Hermanson’s letter of December 15,1988, which flatly states: “My testimony in response to that and subsequent questions . . . clearly shows the ways in which, in my opinion, Dr. Tighe deviated from the Standard of Care.”

The trial court granted Tighe’s motion for summary judgment, stating, “Hermanson never testified, either in his deposition or his affidavit, that [Tighe] was guilty of malpractice or deviated from the applicable standard of care. His testimony, therefore, does not provide the basis for the necessary expert opinion on the issues of the applicable standard of care and whether [Tighe’s] conduct deviated from it. Since his is the only expert testimony on liability, the plaintiff cannot make out a prima facie case.”

“ ‘A trial court may appropriately grant a motion for summary judgment only when the affidavits and evidence submitted in support of the motion demonstrate that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to judgment as a matter of law. Practice Book § 384; Catz v. Rubenstein, 201 Conn. 39, 48-49, 513 A.2d 98 (1986); Barnes v. Schlein, 192 Conn. 732, 738, 473 A.2d 1221 (1984). Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact, a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the non-moving party.’ Rotophone, Inc. v. Danbury Hospital, 13 Conn. App. 230, 232-33, 535 A.2d 830 (1988).” Maruca v. Standard, 19 Conn. App. 16, 19, 559 A.2d 1167 (1989).

A physician is required by law to exercise the degree of skill, care and diligence that is customarily demonstrated by physicians in the same line of practice. Logan v. Greenwich Hospital Assn., 191 Conn. 282, 300-302, 465 A.2d 294 (1983). The physician must exercise such reasonable skill and diligence in all aspects of providing care and treatment to a patient. Allen v. Guiliano, 144 Conn. 573, 574, 135 A.2d 904 (1957). Whether a physician’s conduct was sufficient to meet the appropriate standard of care or whether such conduct was unskillful presents questions of fact for a jury to decide.

To prove that a physician has breached the legally required standard of care, the plaintiff must offer some evidence that the conduct of the physician was negligent. Snyder v. Pantaleo, 143 Conn. 290, 295; 122 A.2d 21 (1956). Except in the unusual case where the want of care or skill is so gross that it presents an almost conclusive inference of want of care; Puro v. Henry, 188 Conn. 301, 305, 449 A.2d 176 (1982); the testimony of an expert witness is necessary to establish both the standard of proper professional skill or care on the part of a physician; Shelnitz v. Greenberg, 200 Conn. 58, 66, 509 A.2d 1023 (1986); “and that the defendant failed to conform to that standard of care.” Mather v. Griffin Hospital, 207 Conn. 125, 131, 540 A.2d 666 (1988); Snyder v. Pantaleo, supra.

It is not necessary, however, for the expert witness specifically to label a defendant’s conduct as malpractice in order for the jury to reach the conclusion that the defendant was negligent. Slimak v. Foster, 106 Conn. 366, 370, 138 A. 153 (1927) (“to demand a positive condemnation of the operator’s course as a prerequisite to recovery would in such case be prohibiting of any recovery therein”); see Allen v. Giuliano, supra, 574-75; Snyder v. Pantaleo, supra, 295. In medical malpractice cases, it is proper for the trier of fact to draw inferences and reach conclusions from facts that are found to be proved. See 1 B. Holden & J. Daly, Connecticut Evidence § 64 (a) through (d). Proof by circumstantial evidence is sufficient where rational minds could reasonably and logically draw the inference. Console v. Nickou, 156 Conn. 268, 275, 240 A.2d 895 (1968).

In this case, the trial court based its decision to grant summary judgment on its finding that Hermanson did not state, either in his deposition or his affidavit, that Tighe was guilty of malpractice or deviated from the applicable standard of care. This decision erroneously applied the relevant law.

A review of the transcript and affidavit shows that the witness did not testify that Tighe was guilty of malpractice. The transcript reveals, however, that he did sufficiently testify to a breach of the standard of care in the deposition, and he further clarified his testimony in the affidavit. In his deposition, Hermanson testified that he thought the April 18,1985 examination was inadequate and that a radiologist of adequate competency should repeat the examination to get an adequate examination and then should recommend a sigmoidoscopy or colonoscopy in addition. He further testified that the examination as a whole was inadequate and was performed using a technique that “I think is not the way I’d like to do it; not the way most of the people I know do it.” He went on to describe the technique that he and most of his professional colleagues would use. In his December 15 affidavit; see footnote 3, supra; Hermanson stated that Tighe deviated from the standard of care. He further stated that the tumor was present at the time of Tighe’s examination of the plaintiff. This testimony was sufficient under the principles articulated in Allen v. Guiliano, supra, Snyder v. Pantaleo, supra, and Simlak v. Foster, supra.

In this case, the witness testified to the standard of care and to what he and his professional colleagues would have done under the circumstances of this case. There was sufficient testimony given by Hermanson in his letter, deposition, and affidavit to present a question for the trier of the fact as to the standard of care and Tighe’s deviation from it.

There is error, the judgment is set aside and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       The following are excerpts from Hermanson’s opinion letter of June 15, 1987. “Review of the examination of April 18,1985: Only 5 films are available for review, 3 overhead 14 x 17 films and 2 spot films. The examination is of technically poor quality because of a large amount of extraneous material in the bowel, and because the amount of films is inadequate. Moreover I feel that this was done as a single contrast study, following which air was injected after evacuation of the bowel. No definite lesion is shown, but one of the spot films shows slight irregularity of the rectosigmoid region, probably on the left anterolateral wall. . . .
      “In my opinion, the examination of April 18, 1985, was inadequate to exclude pathology, and should have been repeated or sigmoidoscopy should have been suggested. It appears probable that adequate examination would have disclosed this lesion.”

       During Hermanson’s deposition the following relevant colloquy occurred:
      “Q. I understand you would do that, but are you telling me that a doctor who did not add that last part would be committing malpractice?
      “A. No. I’m not telling you that at all.
      “Q. In other words, some physicians would do it one way; you would prefer to do it the way you just mentioned?
      “A. That’s correct.”

       Hermanson’s affidavit states as follows: “In reviewing the transcript of my deposition on this case, I note certain answers which require clarification. I was asked . . . if I had an opinion as to whether Dr. Tighe deviated from or failed to meet a standard of care in the field of radiology. My testimony in response to that and subsequent questions . . . clearly shows the ways in which, in my opinion, Dr. Tighe deviated from that standard.
      “I was asked ... if indeed these were the only views that Dr. Tighe took, would it be my opinion that he committed malpractice because he did not take the other views? I said that I could not answer because I did not know if he fluoroscoped the patient or not. Actually, since there were spot films taken, we know that fluoroscopy was done. In fact, I pointed out . . . a suspicious area on the spot film that warranted further investigation and was in the very location where the tumor was subsequently demonstrated. I am certain that the tumor was present at the time of the barium enema performed by Dr. Tighe and that it was about two centimeters in diameter.
      “I testified . . . that if I had done that examination, and those were the films that I saw in the office, I would either have done it (repeated the barium enema) myself or suggested it to the referring physician.
      “I was asked ... if I had said that if a radiologist in that position did not suggest that, I wouldn’t say that that was malpractice, that there are some out there who would and some who wouldn’t. I answered, ‘That’s right.’ Malpractice is a legal term whose meaning, as I understand it, goes beyond the issue of standard of care. I was speaking only of the standard of care.
      “I was asked . . . if the average competent radiologist would have been satisfied with the barium enema films. I answered that I wasn’t satisfied with them. I declined to speak for the ‘average competent radiologist’ because I cannot speak for another. I do, however, speak about the standard of care.”

       Hermanson’s deposition states in pertinent part:
      “Q. If I can go back to my original question. Am I to understand you correctly that there’s nothing inadequate with the x-ray which was marked Exhibit No. 3. However, when you talk of inadequacy, you’re talking about—
      “A. The examination as a whole.
      “Q. Are you through with Exhibit 3 which was the oblique view?
      “A. Not entirely, because there are areas of the bowel here that we don’t see completely, and this was done by a technique that I think is not the— certainly not the way I’d like to do it; not the way most of the people I know do it. We do a primary double contrast examination as opposed to this which is starting out — which starts out as a single contrast examination.
      “Moreover, somewhere mention was made of this being inadequate to exclude polyps, and it certainly is inadequate to exclude polyps. They could be there. You couldn’t see them. You wouldn’t have the faintest idea.
      “Q. He would have fulfilled his duty in telling that to the referring physician, would he not?
      “A. I’d have to say yes and no.
      “Q. What’s the not part?
      “A. The no part is I would advise re-examination.”