39 Conn. App. 742 | Conn. App. Ct. | 1995
The defendant appeals from a judgment of conviction, following a jury trial, of sexual assault in the first degree in violation of General Statutes (Rev. to 1987) § 53a-70,
The jury reasonably could have found the following facts. In 1988, the victim,
The defendant began sexually molesting the victim approximately two months after she and her family moved in with him. This behavior included the defendant’s rubbing his body against the victim’s body and pulling the victim toward him despite her struggles to break free. On one occasion, the defendant walked into the bathroom when the victim was in the shower, pulled back the shower curtain and, despite the victim’s protests, touched her breasts. On another occasion, the defendant went to the victim’s room while she was sleeping, pulled down her shorts and underwear, forced
The victim and her family lived with the defendant until a fire in 1989 forced them to seek emergency housing elsewhere. Approximately two years after the incidents with the defendant, when the victim was thirteen years old, she had her first boyfriend. The victim’s mother decided to take her to the Hill Health Center to obtain birth control pills for her. At this point, the victim recounted her allegations of abuse by the defendant, first to her mother’s boyfriend and, on the next day, to a friend of hers. When the victim went to the Hill Health Center, she told the nurse who treated her about the abuse.
Additional facts will be set forth where relevant to a specific claim made by the defendant.
I
The defendant first argues that the trial court improperly refused to instruct the jury that it could draw an adverse inference from the state’s failure to call the boyfriend of the victim’s mother as a witness. The boyfriend was the first adult the victim told of the assaults by the defendant, which had occurred approximately two years previously.
“The missing witness rule was stated in Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598
As stated previously, the boyfriend of the victim’s mother was the first adult the victim told about the abuse by the defendant. The victim testified that she and her mother’s boyfriend “were close” and that they “could talk about anything and [she] would always come to him for a problem.” Although the boyfriend was not called as a witness at trial, the state produced numerous other constancy of accusation witnesses.
A family and pediatric nurse practitioner who worked at the Hill Health Center testified that she saw the victim on July 19,1990, in connection with the victim’s appointment to obtain birth control pills. She testified that the victim told her during the appointment that she had been sexually abused by a great uncle while her family was living in his home. The victim told the nurse that she had had sexual intercourse with the defendant approximately twelve times.
The victim’s mother testified that she first learned of the victim’s accusations from her boyfriend and another friend before she took the victim to the Hill Health Center. The victim eventually discussed the abuse with her mother. The victim’s mother also testified that she told health care workers that the victim did not always tell the truth.
Detective Peter J. Marone, Jr., testified that on October 18, 1990, he was employed in the youth division of the New Haven police department and conducted an investigation into a complaint made by the victim. On that date, Marone interviewed the victim at her home, and the victim described to Marone the acts perpetrated on her by the defendant. The victim’s mother, her mother’s boyfriend, and some of the victim’s siblings were
A social worker with the Coordinating Council for Children in Crisis testified that on October 25, 1990, the New Haven police department referred the victim’s case to her. The social worker conducted a tape-recorded interview with the victim concerning her accusations of the defendant’s actions. Several times during the interview, the victim became upset while recounting the sexual abuse. The tape was played for the jury.
The victim had told her cousin about the abuse while it was occurring.
Finally, the court read a stipulation of counsel to the jury regarding what a caseworker for the department
On the basis of the other constancy of accusation evidence, we cannot say that testimony by the boyfriend of the victim’s mother would have added “peculiar or superior information” over that provided by the other witnesses. State v. Williams, supra, 20 Conn. App. 267. “Because there is no need to give a Secondino charge for a witness whose testimony would have been no more than cumulative”; id.; we conclude that the trial court properly refused to give a missing witness charge as to the state’s failure to produce the boyfriend of the victim’s mother.
II
The defendant next argues that the trial court improperly denied his motion to exclude evidence under the constancy of accusation doctrine. The defendant argues that the testimony of the victim’s mother, the victim’s cousin, Marone, the health center nurse, the social worker, and a friend of the victim, as well as the stipula
The defendant concedes that we are bound by that part of the Supreme Court’s decision in State v. Kelley, 229 Conn. 557, 565-66, 643 A.2d 854 (1994), which held that the admission of constancy evidence does not violate a defendant’s right to confrontation.
On the basis of the foregoing, we conclude that the defendant’s state and federal
Ill
Finally, the defendant argues that his convictions and separate sentences for sexual assault in the first degree and sexual assault in the second degree constitute double jeopardy under the federal and state constitutions. Specifically, the defendant argues that “the legislative history of the sexual assault statutes evidences a clear legislative intent to prohibit multiple punishments for sexual assault in the first and second degree.” We disagree.
“Double jeopardy prohibits multiple punishments for the same offense. . . . Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met. . . . [W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision required proof of a fact which the other does not.” (Citations omitted; internal quotation marks omitted.) State v. DePastino, 228 Conn. 552, 571-72, 638 A.2d 578 (1994); see Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
In State v. Russell, 25 Conn. App. 243, 248-52, 594 A.2d 1000, cert. denied, 220 Conn. 911, 597 A.2d 338 (1991), and State v. Blackwell, 20 Conn. App. 193, 195-98, 565 A.2d 549, cert. denied, 213 Conn. 810, 568 A.2d 794 (1989), we rejected claims identical to that of the defendant. The rationale in those cases was that “[t]he plain language of the two statutory sections indicates that while sexual assault in the first degree requires proof of force or threatened use of force, sexual assault
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes (Rev. to 1987) § 53a-70 (a) provides:“A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.” This is presently General Statutes § 53a-70 (a) (1).
General Statutes (Rev. to 1987) § 53a-71 (a) provides in pertinent part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is (1) under sixteen years of age . . . .”
General Statutes § 53a-72a (a) provides in pertinent part: “A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person or a third person . . . .”
General Statutes § 53-21 provides “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”
In accordance with General Statutes § 54-86e, the names of the minor victim and her family are not used.
The victim had told a cousin, then age twelve, about the abuse while it was occurring. The victim had asked her cousin not to tell anyone about it.
The constancy of accusation witnesses were permitted to testify following the court’s denial of the defendant’s motion to exclude constancy of accusation testimony.
The victim also told the nurse that she had had sexual intercourse once with her boyfriend.
See footnote 6.
The defendant concedes that we are bound by Kelley, but goes on to argue that the subject testimony lacked adequate “indicia of reliability” and “particularized guarantees of trustworthiness” to satisfy his right to confrontation. We conclude that this claim is foreclosed by State v. Kelley, supra, 229 Conn. 565-66; see also State v. Martin, 38 Conn. App. 731, 737-38, 663 A.2d 1078 (1995). We also note that constancy of accusation evidence is a firmly rooted exception to the hearsay rule and, as such, satisfies the reliability requirement of the confrontation clause. State v. Martin, supra, 737; see State v. Dabkowski, 199 Conn. 193, 199-203, 506 A.2d 118 (1986).
Pursuant to these cases, “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 alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 213 Conn. 239-40.
According to the defendant, six months after he was sentenced in this case, the United States Supreme Court decided J. E. B. v. Alabama ex rel. T.
Although State v. Kelley, supra, 229 Conn. 557, involved only a state constitutional claim, we conclude that it is dispositive of the federal claim as well. While the Connecticut constitution may provide greater protection than that provided under the federal constitution, “particularly when the distinctive language of our constitution calls for an independent construction”; Daly v. DelPonte, 225 Conn. 499, 513, 624 A.2d 876 (1993); it cannot afford lesser protection. See Horton v. Meskill, 172 Conn. 615, 639-53, 376 A.2d 359 (1977). “It is beyond debate that federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection lor such rights.” (Emphasis in original; internal quotation marks omitted.) State v. Morales, 232 Conn. 707, 716, 657 A.2d 585 (1995).