State v. AngellState v. Angell
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The defendant appeals from the judgment of conviction of sexual assault in the second degree and risk of injury to a child in violation of General Statutes §§ 53U-711 and 53-212 respectively. He claims that the trial court improperly (1) permitted the state to introduce constancy of accusation evidence, (2) refused to instruct the jury on the credibility of a child witness, and (3) abused its discretion by refusing to give a missing witness jury instruction.3 We affirm the trial court’s judgment.
The jury reasonably could have found the following facts. The nine year old victim4 lived with her family in Wallingford. One night during the late spring or early summer of 1989, the victim spent the night at the apartment of Karen and Michael Gaube. She went to sleep on the couch in the living room, but was awakened at
After the defendant and Michael Gaube left the apartment the following morning, the victim told Karen Gaube what had occurred during the night. Karen then took the victim home where she related the events to her father and later to her mother. The victim’s parеnts did not notify the police because the father intended to “take care of” the defendant himself.
In December, 1990, the victim’s fifth grade teacher read about the incident in the victim’s school journal. After speaking to the victim about the journal entry, the teacher notified another teacher, the school nurse and the principal. On Decеmber 13,1990, the victim’s father notified Officer Thomas Francolo of the Wallingford police department of the incident, and, on January 10, 1991, Detective Patricia Miranda interviewed the victim. The defendant was thereafter arrested, prosecuted and convicted.
I
The defendant first asserts that the trial court improperly admitted constancy of accusation evidence. He claims that the admission of the victim’s journal entry, her statement to Miranda, and the testimony of Karen Gaube and the victim’s parents violated his right
Before we address the merits of the defendant’s claims, we must determine whether they were properly preserved. We turn first to the journal entry and Miranda’s testimony. At trial, the defendant objected to the admissibility of the victim’s statement to Miranda and the journal entry on evidentiary grounds.6 On appeal, the defendant did not brief the evidentiary claims asserted at trial, but instead raised a constitutional basis for his objection. Pursuant to
We next address the question of whether these claims, as well as the concededly unpreserved claims as to the constancy testimony of Karen Gaube and the victim’s parents are reviewable under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). In Golding, the Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude
“The first two conditions are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself. Wilson v. Cohen, 222 Conn. 591, 603, 610 A.2d 1177 (1992); State v. Graham, 33 Conn. App. 432, 442, 636 A.2d 852 (1994); see also State v. Thurman, 10 Conn. App. 302, 306, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987).” State v. Smith, 35 Conn. App. 51, 55, 644 A.2d 923 (1994); State v. Crosby, 34 Conn. App. 261, 264, 641 A.2d 406, cert. denied, 230 Conn. 903, 644 A.2d 916 (1994).
Although the record is adequаte to review the confrontation claims and they are of constitutional magnitude, we conclude that the defendant’s claim founders on the third prong of Golding because the alleged violation does not clearly exist.
The defendant relies on White v. Illinois, 502 U.S. 346, 112 S. Ct. 736, 116 L. Ed. 2d 848 (1992), for the proposition that Connecticut’s constancy of accusation hearsay exception is not “firmly rooted” enough to withstand a sixth amendment confrontation clause challenge. In White, the victim, who was four years old at the time of trial, never testified because she experienced emotional difficulties each time she was brought into the courtroom. The child’s mother, a babysitter, a police officer, an emergency room nurse and a physician were all allowed to relate the child’s statements describing the аssault. The testimony was admitted under the “spontaneous declaration” and “statements made in the course of seeking medical treatment”
The petitioner in White made no claim that, had the victim testified, the other testimony would, nevertheless, have violated the confrontation clause. The defendant here does not rely on the holding in White, but rather asserts that a footnote8 in the opinion mandates a reversal here. He claims that the White footnote dictates that only “firmly rooted” exceptions to the hearsay rule are considered sufficiently reliable to satisfy the reliability requirement of the confrontation clause and that Connecticut’s constancy of accusation doctrine meets none of the criteria laid down in the footnote for
In Idaho v. Wright, 497 U.S. 805, 817, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990), the United States Supreme Court stated: “Admission under a firmly rooted hearsay exception satifies the constitutional requirement of reliability because of the weight accorded long standing judicial and legislative experience in assessing the trustworthiness of cеrtain types of out-of-court statements.” (Emphasis added.) In Connecticut, constancy of accusation evidence is indeed a long standing exception to the hearsay rule. In State v. Kelley, 229 Conn. 557, 563-64, 643 A.2d 854 (1994), our Supreme Court rejected the defendant’s claim that constancy testimony did not fall within a recognized hearsay exception. In State v. Bethea, supra, 24 Conn. App. 18, this court stated: “The constancy of accusation doctrine has its origin in the common law. Since 1876, statements admitted under the constancy of of accusation theory have been labeled by Connecticut courts as exceptions to the hearsay rule . . . .”
Our Supreme Court has recently rejected a sixth amendment confrontation clause challenge to constancy of accusation testimony. State v. Kelley, supra, 229 Conn. 557. In explaining why the constancy doctrine did not offend the confrontation clause, the Kelley court stated: “In approving the admission of constancy of accusation testimony, we have explained that it would be natural for the victim of actual or attempted sexual assault to relate the incident to othеrs if it had actually happened, but not if the incident had not occurred. Similarly, the victim’s recitation of the details of the incident would likely be consistent if the claim were true, but discrepancies would be more likely to appear if the incident had not occurred.” Id., 565-66. The court went on to say that “[rjather than disadvantaging a defendant, such a doctrinе supplies a fertile
Numerous Connecticut Supreme and Appellate Court decisions have allowed such constancy evidence over a span of 164 years. From State v. De Wolf, 8 Conn. 92 (1830), through State v. Kelley, supra, 229 Conn. 557, our courts have upheld the admission of constancy of accusation testimony. See State v. Kinney, 44 Conn. 153 (1876); State v. Orlando, 115 Conn. 672, 163 A. 256 (1932); Pierzanowski v. Jezewski, 116 Conn. 704, 164 A. 207 (1933); State v. Purvis, 157 Conn. 198, 251 A.2d 178, cert. denied, 395 U.S. 928, 89 S. Ct. 1788, 23 L. Ed. 2d 246 (1969); State v. Savage, 161 Conn. 445, 290 A.2d 221 (1971); State v. Parris, 219 Conn. 283, 592 A.2d 943 (1991); State v. Bethea, supra, 24 Conn. App. 13.
Our review of the history of constancy of accusation evidence leads us to conclude that such evidence is indeed a firmly rooted hearsay exception. As such, constancy evidence satisfies the reliability requirement of the sixth amendment confrontation clause for the reasons laid out in State v. Kelley, supra, 229 Conn. 557. Under the circumstances here, a ruling by this court that the subject constancy evidence violated the confrontation clause wоuld be contrary to the Kelley holding. As we are bound by Supreme Court precedents, we cannot rule contrary to Kelley. State v. Cecarelli, 32 Conn. App. 811, 826 n.1, 631 A.2d 862 (1993); Greger v. Greger, 22 Conn. App. 596, 599, 578 A.2d 162, cert. denied, 216 Conn. 820, 581 A.2d 1055 (1990); State v. Napoleon, 12 Conn. App. 274, 282, 530 A.2d 634, cert.
II
The defendant next claims that the trial court abused its discretion by failing to instruct the jury on the credibility of a child witness. He argues that this issue is reviewable on the basis of an exception taken immediately after the jury charge or, in the alternative, under Golding.
We will not review this claim because the defendant failed to comply with
A Golding review is unavailable because the second prong of the test is not satisfied. For an unpreserved
Ill
The defendant’s final claim is that the trial court improperly refused to give the jury a missing witness instruction. In order to be entitled to a review of a missing witness instruction, a defendant is required to file a written request to charge or take an exception immediately after the charge is delivered.
The defendant acknowledges that no written request to charge was submitted on this issue, but contends that his exception, which was taken immediately after the trial court’s denial of his oral request, preserved the claim. He claims that State v. Kish, 186 Conn. 757, 770, 443 A.2d 1274 (1982), supports his position. We are unpersuaded. In Kish, an exception was taken after the court delivered its charge, even though no written
This court has previously rejected the argument that a discussion with the court prior to the charges obviates the need to follow the rules. “[We are not] persuaded by the defendant’s contention that an in-court discussion of whether the missing witness charge was warranted, held immediately before the court’s charge to the jury, is an aсceptable alternative to the rules of practice. First, the rules of practice do not give oral argument as an alternative to a written request to charge. Second, the purpose of the provision, that attorneys help rather than hinder the trial court in its determination of whether a particular instruction should be given . . . is not well sеrved by oral argument.’’(Citation omitted.) State v. Ramirez, 16 Conn. App. 284, 289, 547 A.2d 549, cert. denied, 209 Conn. 828, 552 A.2d 434 (1988). “It is well established that [t]he ever increasing refinement of our law justifies the cooperation of counsel in stating requests for jury instructions, and this cooperation is mandated, at least to the extent of substantial compliance with
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
This jury instruction is known as a Secondino charge. See Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 145 A.2d 598 (1960).
The victim was thirteen years old when she testified at trial.
The defendant, Karen Gaube’s brother-in-law, was spending the night at the Gaube apartment.
The defendant raised the following objection to Miranda’s testimony: “Judge, the witness, the victim, alleged victim, in this case has already testified. Her testimony is the best evidence. This officer prepared reports. She can testify from her recollection of what she remembers. If there is anything she doesn’t remember from her reports, her memory can be refreshed and recollected. There is absolutely no purpose to admitting the statement of the alleged victim in this casе, and I can only assume that the claim is going to be by Attorney Turcotte that this statement is going to constancy of accusation.” The defendant’s objection to the journal entry was: “My exception is under the rule of completeness as well as my other objections . . . .”
The footnote in White states: “Indeed, it is this factor that has led us to conclude that ‘firmly rooted’ exceptions carry sufficient indicia of reliability to satisfy the reliability requirement posed by the Confrontation Clause. See Idaho v. Wright, 497 U.S. 805, 817, [820-21, 110 S. Ct. 3139, 111 L. Ed. 2d 638] (1990); Bourjaily v. United States, 483 U.S. 171, [182-84, 107 S. Ct. 2775, 97 L. Ed. 2d 144] (1987). There can be no doubt that the two exceptions we consider in this case are ‘firmly rooted.’ The exception for spontaneous declarations is at least two centuries old, see 6 J. Wig-more, Evidence, § 1747, 195 (J. Chadbourn rev. 1976), and may date to the late 17th century. See Thompson v. Trevanion, 90 Eng. Rep. 179 (K.B. 1694). It is currently recognized under
The exception was phrased as follows: “I take, first, exception as to the court not giving the jury a charge on the credibility of a child witness.”
See footnote 8.