STATE OF CONNECTICUT v. DANIEL W. E.*
(SC 19341)
Supreme Court of Connecticut
Argued September 8, 2015—officially released August 23, 2016
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.
Glenn W. Falk, assigned counsel, for the appellant (defendant).
Marjorie Allen Dauster, senior assistant state’s attorney, with whom were Andrew J. Slitt, assistant state’s attorney, and, on the brief, Patricia M. Froehlich, state’s attorney, for the appellee (state).
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Opinion
ZARELLA, J. Following a jury
The record reveals the following relevant facts and procedural history. The victim was born in March, 1996. In 2001, after her parents separated, the victim was living with her mother and two brothers in the town of Plainfield, and the defendant was living with his parents in the town of Brooklyn. From the time she was six years old, the victim and her brothers visited the defendant every other weekend. During each visit, the defendant sexually assaulted the victim at least once for the next three years. The assaults usually occurred in the bedroom or during bath time, when the defendant and the victim were alone. On one occasion, when the victim’s younger brother awoke from a nap in the children’s bedroom and asked why the defendant was lying on top of the victim, the defendant responded, “[t]his is our thing.” The visits and the assaults ceased when the victim was nine years old.
The victim did not remember the assaults as painful and did not tell her mother, her grandparents or her pediatrician about them because she did not know they were wrong. She simply thought the defendant was doing “what fathers and daughters did.” Although she repeatedly asked the defendant to stop, he continued the abuse. The victim’s only complaint to her mother about the visits was the presence of cigarette smoke inside the house, which made her feel sick. Both of the victim’s older stepsisters, M and D, also were sexually abused by the defendant when they were very young, but the victim was unaware of this when she was being abused.
In 2007, after D told the victim that she had been sexually abused in the past, the victim confided in D that she had been sexually assaulted by the defendant over аn extended period of time, and then started crying.2 D responded that the victim should tell her mother or report the abuse to the police, but the victim did not do so. Two years later, in October, 2009, the victim also told a former boyfriend, S, during a telephone conversation that she had been sexually abused by the defendant multiple times.
In October, 2009, after the victim finally told her mother, she reported the abuse to the police. The report was triggered by an incident involving the victim and the defendant at a restaurant. The victim had arranged to meet the defendant at the restaurant, even though she was not permitted to contact him at that time and had
The state arrested the defendant and charged him with two counts of sexual assault in the first degree and one count of risk of injury to a child. The defendant elected to be tried by a jury. In a pretrial motion in limine, the defendant requested, among other things, that the trial court (1) give a limiting instruction regarding any properly admitted constancy of accusation evidence, (2) exclude all constancy evidence, including any direct or indirect reference thereto, until after the victim testified, (3) preclude constancy evidence derived from reports after the victim’s official complaint to the police or the Department of Children and Families, (4) limit ” ‘corroborative’ ” evidence to the fact and timing of the victim’s complaint, when, where, and to whom the complaint was made, and the identity of the alleged perpetrator, and (5) exclude cumulative constancy evidence to the extent its probative value was outweighed by its prejudicial effect and the jury was likely to treat the evidence as substantive evidence of the defendant’s guilt. The defendant also urged the trial court to instruct the jury that any delay by a victim in reporting a complaint of sexual abuse to a friend or relative affects the weight to be given such evidence and should be considered by the jury. The defendant argued in part that, although the constancy of accusation doctrine has a long history in Connecticut, its continued relevance requires reconsideration because its underlying rationale has been increasingly questioned in recent years.
Following a hearing, during which counsel for both parties failed to engage in any substantive argument,3 the trial court granted the motion in limine insofar as it sought to limit constancy evidence to statements made prior to the victim’s official report of abuse and to preclude such evidence considered potentially redundant or cumulative. The court emphasized that it would not exclude any evidence at that time but that defense counsel could object if he believed the assistant state’s attorney (prosecutor) was not exercising reasonable restraint. Thereafter, in its preliminary instructions to the jury, the trial court included a general instruction that certain evidence admitted at trial was to be considered only for a limited purpose and that the court would identify this evidence at the time of its admission.4
At trial, defense counsel did not object when the victim testified that she had never told anyone about the abuse until several years later. When the prosecutor called
D, the second constancy witness, testified without objection that the victim told her she had been sexually abused by the defendant over a long period of time, and then started crying. The victim’s mother also testified without objection that the victim did not tell her about the abuse until 2009 or 2010, even though the mother had explained “good touch-bad touch” to the victim when the victim was younger and that no healthcare provider had noted the presence of injuries during regular pediatric checkups from 2001 to 2004 that might have been caused by sexual abuse.
Erica Kesselman, a physician who examined the victim in December, 2009, after the victim reported the abuse to the police, testified that, although she observed injuries to the victim that could have been caused by the victim’s consensual sexual relationship with B during the summer of 2009, the injuries also were consistent with the victim’s reported history of sexual abuse and with medical findings concerning girls who have been forcibly penetrated before reaching puberty. Kesselman further testified that the fact that the victim had been sexually active for a brief time prior to reporting the abuse to the police did not affect her conclusions because the victim’s injuries were more common in abuse cases than in cases in which there has been consensual intercourse.
Theresa Montelli then testified for the state as an expert witness regarding the characteristics of sexually abused children. She explained that there is often a delay in reporting abuse due to factors such as the family relationship between the child and the abuser, the abuser’s telling the child to keep the abuse a secret, the child’s loyalty to the abuser, the child’s difficulty in talking about the abuse, threats or coercion by the abuser, and the child’s feelings of fear, shame and self-blame. Montelli also testified that children sometimes fail to realize that what is happening to them is wrong, and they only become aware of this at some later time, such as in a health class at school. She added that disclosure by many children may involve a process in which they begin by revealing to a friend only a little about what happened and gradually provide more detailed information during an investigаtion or therapy as their comfort level and sense of safety increase.
At the close of the evidence, the trial court gave the parties its proposed jury instructions and requested that counsel review them in preparation for the next day’s charging conference. Before the conference, however, defense counsel also submitted his own request to charge, which included a proposed instruction on constancy testimony.5 After the trial
The trial court responded that any “nuance” to which counsel had referred was “so subtle that [the court was] not inclined in the gestalt of the case overall to believe that it’s going to be determinative.” The court thus declined to revisit its earlier decision and rejected counsel’s request to use the standard criminal jury instruction. Shortly thereafter, when defense counsel noted for the record that he had made a general objection to the constancy charge, the trial court summarized: “As to the constancy of accusation charge, which we’ve just discussed briefly, we discussed it in greater length in chambers, [and] I determined that I would use the language I had originally drafted.”
The prosecutor did not refer to the constancy testimony during his closing argument. Defense counsel, however, challenged the victim’s credibility on the ground that she had not reported the abuse to anyone during the three years when the abuse allegedly was occurring and because she had shown no outward manifestations of physical abuse during that time. Counsel specifically noted that S “wasn’t here to testify as to whether or not it happened [because] he couldn’t say, just that sometime in October of [2009], while they were dating, she supposedly made this disclosure to him.”
The prosecutor argued in rebuttal that the victim’s testimony, if credited, was sufficient to prove that the defendant was guilty and thus need not be corroborated. He then argued: “However, I would submit
The trial court then excused the jury, and defense counsel objected to several portions of the prosecutor’s closing argument, including his contention during rebuttal argument that the victim’s testimony was corroborated by the constancy evidence. The trial court responded that defense counsel’s observation was “correct” and that it would clarify in its jury instructions how the constancy evidence should be used. The court specifically stated that its “plan [was] to let the jury know that the import of [the constancy] testimony [was] that [the victim] made these statements. It [did] not mean that the statements [were] necessarily true. They [were] simply statements made, and . . . the jury [could] consider those in its calculation of all the credibility issues.”
The trial court subsequently gave the following instruction to the jury: “I mentioned to you in my opening remarks that sometimes evidence is admitted for a limited purpose. And I have admitted some evidence in this case with that limitation, and you must consider that evidence only as it relates to the limits for which it was allowed аnd not consider such testimony and evidence in finding any other facts as to any other issue.
“First in that category is what we call constancy of accusation evidence. You will recall that the state offered evidence of out-of-court statements which [the victim] made to other persons that the defendant sexually assaulted her. Specifically, you may recall that [S] and [D] testified as to the statements that she made to each of them regarding the defendant sexually assaulting her.
“Ordinarily, as you may know, statements that are made out of court are not admissible. Under our law, this type of testimony is an exception only permitted in cases alleging a sexual assault and only admitted for the limited purpose of corroborating what the complaining witness, [the victim], has testified to in court with respect only to the fact and timing of her complaint, the time and place of the alleged sexual assaults, and the identity of the alleged perpetrator.
“First of all, you may determine that the testimony of these witnesses was not itself credible. If you find their testimony credible as to what [the victim] told them, however, you may only thereupon find that these statements corroborate or support her own testimony. In other words, they are a factor in your determination as to what weight and credibility you will give to [the victim’s] testimony as it pertains to the charges of sexual assault.
“If you find that she has been inconsistent, you may consider the degree of inconsistency,
“[The victim’s] delay in reporting the alleged incidents is also something you may consider in assessing her credibility. You may discuss that delay, as well as any reasons which you may find for such delay in evaluating her testimony given in court. You may not deem this evidence of out-of-court statements by the [victim] that [the defendant] perpetrated a sexual assault against her as proof of the truth of what those out-of-court statements asserted.
“In determining whether or not these out-of-court statements corroborate [the victim’s] testimony in court, you should consider all of the circumstances under which they were made and to whom, and . . . whether the statements made to those persons were or were not consistent with [the victim’s] testimony here in court.” Defense counsel did not object to this instruction.
Prior to sentencing, the defendant moved to set aside the verdict and for a new trial. In his motion, the defendant claimed, among other things, that “the jury was at least confused by the [court’s constancy] instruction. the jury to mean that the constancy evidence in fact corroborated the [victim’s] testimony, and the jury could not reasonably distinguish between the corroboration language in the charge to the jury and the instruction that that constancy evidence could not be used as substantive evidence that the defendant [sexually assaulted] the [victim].” At the sentencing hearing, defense counsel likewise argued that the trial court’s use of the word “corroboration” in its instruction had sent the wrong message to the jury, as had the prosecutor’s use of the word “corroboration” during closing argument. Counsel сontended that the purpose of constancy testimony is to corroborate that “the complaining witness has made a complaint and the timing of that complaint, and very little more than that,” but that the commonly understood meaning of the word “corroborate” is to confirm the substance of what someone else has said, which is how the word was used in the jury charge and in the prosecutor’s closing argument. The prosecutor responded that “the court and the state acted within the established limits of the law.”
The trial court denied the motion to set aside the verdict and for a new trial. With respect to the jury instruction, the court first observed that Connecticut precedent requires that constancy evidence be limited to the details necessary to associate the victim’s complaint with the pending charge, including the time and place of the attack and the identity of the perpetrator. State v. Troupe, 237 Conn. 284, 304, 677 A.2d 917 (1996). The court then concluded that S’s testimony that the victim told him the defendant had sexually assaulted her multiple times when she was five or six years old and D’s testimony that the victim told her the defendant had sexually assaulted her did not run afoul of our precedent and that the jury charge concerning this evidence was proper. With respect to the prosecutor’s closing argument, the trial court disagreed that the prosecutor’s references to the corroborating evidence constituted prosecutorial impropriety because they “were sparse and were a marshaling of the evidence that was before the jury,” and the standаrd for prosecutorial behavior requires more egregious conduct than the prosecutor’s conduct in this case. On appeal, the defendant claims that the trial court improperly instructed the jury and that this court should abandon or modify the constancy of accusation doctrine, especially
I
The defendant first claims that the trial court improperly instructed the jury regarding the correct use of constancy of accusation evidence, which is admitted under Troupe only to prove that a complaint was made, not to prove that the complaint was true. The defendant specifically claims that the jury instructions were improper in light of the preexisting susceptibility of jurors to disregard the subtle distinction between constancy evidence and substantive proof, the court’s use of dense legal language from an appellate decision, and the trial court’s failure to define the word “corroborate.” The state responds that it is not reasonably probable that the trial court’s instructions misled the jury.8 We agree with the state that the court’s instructions accurately portrayed the law and did not mislead the jury.
“Our review of [a jury instruction] claim requires that we examine the [trial] court’s entire charge to determine whether it is reasonably [probable] that the jury could have been misled . . . . While a request to charge that is relevant to the
With respect to the governing legal principles, we concluded in Troupe that “a person to whom a sexual assault victim has reported the assault may testify only with respect to the fact and timing of the victim’s complaint; any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim’s complaint with the pending charge, including, for example, the time and place of the attack or the identity of the alleged perpetrator. In all other respects, our current rules remain in effect. Thus, such evidence is admissible only to corroborate the victim’s testimony and not for substantive purposes. Before the evidence may be admitted, therefore, the victim must first have testified con-cerning the facts of the sexual assault and the identity of the person or persons to whom the incident was reported. In determining whether to permit such testimony, the trial court must balance the probative value of the evidence against any prejudice to the defendant.” (Footnote omitted.) State v. Troupe, supra, 237 Conn. 304–305.
The foregoing principle is codified in
In the present case, even considering the state’s improper suggestion during rebuttal argument that the constancy of accusation evidence supported the substance
It is clear from these instructions that the jury was permitted to use the constancy testimony only to corroborate the fact and timing of the victim’s out-of-court statements to the two constancy witnesses, as well as any other information necessary to associate the victim’s out-of-court statements with the pending charge. The instructions also made clear that, although the jury was permitted to consider the constancy evidence in evaluating the weight and credibility of the victim’s testimony, including the reasons for her delay in reporting the abuse to the police, the evidence could not be used as proof of the substance or truthfulness of the statements themselves. “The jury is presumed, in the absence of a fair indication to the contrary, to have followed the court’s instructions.” State v. Parris, 219 Conn. 283, 294, 592 A.2d 943 (1991). Accordingly, we conclude that the trial court correctly instructed the jury regarding the limited purpose for which the constancy evidence could be considered, thus minimizing the risk of undue prejudice to the defendant.
We reject the defendant’s contentions that the jury instructions failed to distinguish between constancy evidence and substantive proof, incorporated too much “dense legal language” and failed to convey the meaning of the word “corroborate.” Even if we presume that juries are susceptible to confusion regarding how to use constancy evidence, the defendant has not identified any legal language in the trial court’s instruction that was not contained in the instruction defense counsel suggested in his own request to charge or in the standard criminal jury instruction he subsequently asked the court to adopt.
First, with respect to the distinction between constancy evidence and substantive proof, we reiterate that the trial court expressly cautioned the jury to use the constancy testimony “for the limited purpose of corroborating what the [victim] . . . has testified to in court with respect only to the fact and timing of her complaint, the time and place of the alleged sexual assaults, and the identity of the alleged perpetrator.” Shortly thereafter, the court added: “You may not deem this evidence of out-of-court statements by the [victim] that [the defendant] perpetrated a sexual assault against her as proof of
Second, the defendant’s argument that the instruction contained too much “dense legal language” is directly contradicted by defense counsel’s admission following the charging conference that there were only “subtle” differences between the court’s proposed instruction and the standard criminal jury instruction. Counsel further conceded at trial that the two instructions were “pretty much the same” and that, “looking at the gestalt of these two instructions, it’s the subject[ive] feeling of . . . defense counsel that, because of the placement of [the] language . . . [the standard criminal jury instruction is] a little bit less prejudicial . . . .” (Emphasis added.) Moreover, the precise “legal” language identified by the defendant as particularly confusing is nearly identical to corresponding language in defense counsel’s requested charge.9 Thus, the trial court’s charge did not differ substantively from the defendant’s requested charge. Finally, the defendant’s contention that New Jersey’s model instruction on fresh complaint evidence does a “much better job” of explaining the limited purpose of constancy evidence in terms jurors can readily understand is irrelevant. See generally State v. Hill, 121 N.J. 150, 578 A.2d 370 (1990). Although we agree with the defendant that New Jersey’s model instruction is more detailed than the trial
Third, neither the Connecticut standard criminal jury instruction nor our precedent suggests or requires that trial courts define the word “corroborate” in an instruction on constancy of accusation evidence, and defense counsel never suggested to the court at any point in the proceedings that the word should be defined. The court used the word in the same way it is used in the standard criminal jury instruction, the Connecticut Code of Evidence and, even more significantly, in the defendant’s requested instruction. See footnotes 5 and 6 of this opinion. Accordingly, we conclude that the trial court’s instruction in the present case did not mislead the jury or cause the defendant undue prejudice. We suggest, however, that, to ensure clarity in future cases in which constancy evidence is admitted,
II
The
It is certainly possible that, because of increased public awareness of the reasons for delayed reporting, many jurors may no longer harbor biases against victims who do not make timely reports that they have been sexually abused. We nonetheless agree with the state that there is no well developed body of scientific research suggesting that these long-standing biases have been entirely eliminated. We thus conclude that the constancy of accusation doctrine should continue to be employed in Connecticut to counter implicit juror bias against victims, including children, who delay in reporting sexual abuse, but in a modified form intended to address the potential prejudice to defendants caused by the testimony of multiple constancy witnesses.
We begin with a brief review of the history and purpose of the constancy of accusation doctrine in Connecticut. In Troupe, we explained that the doctrine “traces its roots to the fresh complaint rule“; (internal quotation marks omitted) State v. Troupe, supra, 237 Conn. 294; “[t]he narrow purpose of [which] . . . was to negate any inference that because the victim had failed to tell anyone that she had been [sexually assaulted], her later assertion of [sexual assault] could not be believed.” (Internal quotation marks omitted.) Id., 296. We observed that, “[b]ecause
We further explained that, following its adoption by this court in State v. DeWolf, 8 Conn. 93, 100 (1830), the fresh complaint doctrine applied for forty-six years until it was modified in State v. Kinney, 44 Conn. 153 (1876). State v. Troupe, supra, 237 Conn. 297. In Kinney, the court “expanded the rule to permit the state to introduce testimony concerning the details of the complaint,” at which time it became known as “the constancy of accusation doctrine.” Id.; see State v. Kinney, supra, 156–57. We noted that the rule as modified in Kinney allowed the state “to introduce the fact of the complaint and the details of the complaint once the victim ha[d] testified regarding the alleged sexual assault and the identity of the person or persons to whom a complaint had been made“; State v. Troupe, supra, 284; and that, “[s]ubject to a determination by the trial court” that the evidence was “more probative than prejudicial, the state [could] introduce the cоnstancy of accusation testimony of each of the persons to whom the complainant had reported the sexual assault.” Id., 297–98. We added that “the complaint need not have been made promptly after the commission of the alleged offense; any delay in reporting [was] to be considered by the fact finder in evaluating the weight of the constancy of accusation testimony.” Id., 298. This rule was applied without modification in sexual assault cases until it was reexamined 120 years later in Troupe. See id.
We reiterated in Troupe that, although there was no support for an assumption that a delay in the reporting of a sexual assault casts doubt on the victim’s credibility, such a misconception still was “not uncommon.” Id., 301. We thus continued to acknowledge in Troupe the need to “protect against the the unwarranted, but nonetheless persistent, view that a sexual assault victim who does not report the crime cannot be trusted to testify truthfully about the incident“; id., 303; while also recognizing that “a defendant has an interest in not being unreasonably burdened by such accrediting or supporting evidence, which . . . generally is not admissible in the trial of crimes other than sexual assault.” Id., 302. Ultimately, because “we [were] not yet willing to reject the constancy of accusation doctrine completely due to biases still extant in our society“; id., 303; we modified the doctrine to allow a constancy witness to testify “only with respect to the fact and timing of the victim’s complaint; any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim’s complaint with the pending
“In addition, the defendant is entitled to an instruction that any delay by the victim in reporting the incident is a matter for the jury to consider in evaluating the weight of the victim’s testimony.” (Footnotes omitted.) Id., 304–305.
Twenty years have passed since our decision in Troupe. At that time, we noted that every state but California allowed the prosecution to introduce evidence in its case-in-chief of a sexual assault victim’s out-of-court complaint;12 id., 299; with the vast majority of states limiting such evidence to the fact of the complaint and excluding evidence of its details. See id., 299–300 n.14. Prior to Troupe, however, Connecticut was not one of those states but, rather, was one of five states13 that permitted testimony regarding both the fact of the
Following Troupe, at least two states fully reexamined their rules on the admission of constancy evidence in sexual assault cases and reached strikingly different conclusions.14 Most recently, the Supreme Court of Vermont rejected the fresh comрlaint doctrine and determined, without reviewing the limited scientific literature on juror attitudes toward victims in such cases, that a victim’s out-of-court complaint is admissible only under the generally applicable rules of evidence. See State v. Madigan, 122 A.3d 517, 528–30 (Vt. 2015) (rejecting fresh complaint rule as independent evidentiary doctrine on ground that it has become largely supplanted by ordinary rules of evidence, including rules on admission of prior consistent statements to rebut charges of recent fabrication, evidence to establish timing or circumstances of official report, excited utterances, statements made for purposes of medical diagnosis or treatment, and out-of-court statements by children under thirteen years of age or who are putative victims of abuse, neglect, or certain sexual crimes). The Vermont court based its decision in part on its view that most jurisdictions no longer recognize the fresh complaint doctrine; id., 528; which the court characterized as a “historic artifact“; (internal quotation marks omitted) id., 529; but “sensibly prefer to apply the same rules of evidence in [sexual abuse] cases as in other cases.”15 Id. Accordingly, the court did not consider any other independent rule under which to admit otherwise inadmissible evidence of out-of-court complaints by sexual assault victims.
In contrast, the Supreme Judicial Court of Massachusetts, following an intensive review of the limited scientific literature, determined that ordinary rules of evidence are insufficient to counter persistent juror biases against sexual assault victims who delay in rеporting the assault, and, therefore, testimony regarding out-of-court complaints by victims should continue to be admitted under a special evidentiary rule. See Commonwealth v. King, 445 Mass. 217, 242–48, 834 N.E.2d 1175 (2005) (replacing state’s existing fresh complaint doctrine with first complaint doctrine and permitting testimony by victim and third party regarding details of complaint as well as circumstances under which complaint was made), cert. denied, 546 U.S. 1216, 126 S. Ct. 1433, 164 L. Ed. 2d 136 (2006).16 Significantly, the Massachusetts court recognized the continued necessity for a special evidentiary rule in this context even after acknowledging increased public awareness of the reasons for delayed reporting by victims of sexual assault.17 See id., 238–41.
Referring to several studies on the subject, the court stated: “[Although] we have located little recent research on juror perceptions of [sexual assault] complainants, the research and scholarship of which we are aware suggests that damaging stereotypes persist. Some jurors may continue to believe incorrectly that ‘real’ victims will promptly disclose a sexual attack.18 Some jurors may continue to harbor prejudicial misperceptions about the nature of [sexual assault] and . . . allegations [thereof], including that complainants who wear revealing clothing, consume drugs or alcohol, or have unorthodox or promiscuous lifestyles cannot be ‘real’ victims of [sexual assault]; that forced sex by a spouse or a past partner does not constitute ‘real’ [sexual assault]; and that false accusations of sexual assault are more frequent than those of other violent crimes.19 Juror
“While more than a decade has passed since [the court] last observed that ‘juries tend toward considerable and perhaps inordinate skepticism in [sexual assault] cases’ . . . that observation has continued vitality. Although many jurors may no longer harbor stereotypical assumptions concerning the behavior of ‘real’ [sexual assault] victims, others may still harbor stereotypical assumptions to the effect that victims will immediately disclose a sexual assault and that the absence of a timely complaint suggests fabrication of the assault. There is a continued need in sexual assault cases to counterbalance or address inaccurate assumptions regarding stereotypes
Although little research on the subject appears to have been published since the decision in King, at least one recent law review article examining general juror bias against sexual assault victims has concluded, following a review of the studies cited in King and a large body of other rеsearch, that damaging stereotypes continue to exist, despite the considerable media attention that has been devoted in recent years to sexual assaults and their impact on adult and child victims. See C. Fraser, “From ‘Ladies First’ to ‘Asking for It‘: Benevolent Sexism in the Maintenance of Rape Culture,” 103 Cal. L. Rev. 141, 184–87 (2015) (discussing sexist stereotypes and possibilities for decreasing juror bias in sexual assault cases). Indeed, that is precisely why Connecticut courts routinely allow the admission of expert testimony to describe the behavior patterns of children who have been sexually abused and the behaviors customarily displayed by the victims of battered woman syndrome. See, e.g., State v. Taylor G., 315 Conn. 734, 761, 110 A.3d 338 (2015) (“[I]n cases that involve allegations of sexual abuse of children, we have held that expert testimony of reactions and behaviors common to victims of sexual abuse is admissible. . . . Such evidence assists a jury in its determination of the victim’s credibility by explaining the typical consequences of the trauma of sexual abuse on a child.” [Internal quotation marks omitted.]); State v. Borrelli, 227 Conn. 153, 174, 629 A.2d 1105 (1993) (expert testimony is admissible “to describe the behavior patterns typically ascribed to battered [woman] syndrome“).
We thus agree with the court in King and with the overwhelming majority of other jurisdictions that the generally applicable rules of evidence are insufficient to remedy potential juror bias against victims who delay in reporting a sexual assault. As the court noted in King, the spontaneous utterance exception to the hearsay rule allows only for the admission of statements made during or shortly after the commission of the assault, and prior inconsistent statements are allowed only to rebut charges of recent fabrication. See Commonwealth v. King, supra, 445 Mass. 241; see also
Having considered the myriad ways in which other courts have attempted to balance these competing interests, we conclude that the victim in a sexual assault case should continue to be allowed to testify on direct examination regarding “the facts of the sexual assault and the identity of the person or persons to whom the incident was reported.” Id., 304–305. Thereafter, if defense counsel challenges the victim’s credibility by inquiring, for example, on cross-examination as to any out-of-court complaints or delayed reporting, the stаte will be permitted to call constancy of accusation witnesses subject to the limitations established in Troupe, as modified in this opinion. If defense counsel does not challenge the victim’s credibility in any fashion on these points, the trial court shall not permit the state to introduce constancy testimony but, rather, shall instruct the jury that there are many reasons why sexual assault victims may delay in officially reporting the offense, and, to the extent the victim delayed in reporting the offense, the delay should not be considered by the jury in evaluating the victim’s credibility.
We believe this modification of our present doctrine achieves a proper balance between the interests of the state and the defendant. The state will retain the ability to introduce testimony by the victim regarding out-of-court complaints to other persons and the victim’s reasons for the delayed reporting. In addition, the state will be free to introduce expert testimony regarding the traumatic effect of sexual assaults on victims generally and why sexual assault victims often fail to promptly report the offense. The state also will benefit from the trial court’s instruction that the jury is not allowed to consider a delay by the victim in reporting the offense. Defendants will likewise benefit because they no longer will be required to defend against testimony by constancy witnesses unless they choose to challenge the victim’s testimony regarding any out-of-court complaints or delayed reporting. In such cases, we believe that trial courts, in the exercise of their discretion, will be able to prоperly balance the probative value of the constancy testimony against its prejudicial effect. See id., 305. These modifications, like the rule articulated in Troupe, will apply to both adult and child victims of sexual assault. In keeping with our precedent, however, they will apply only prospectively to cases in which the evidentiary portion of the trial has not commenced as of the date of the release of this decision. Finally, because our decision is based solely on policy considerations; see id.; there is no reason to order a new trial when the testimony at issue, as in the present case, has been properly admitted under our former articulation of
The judgment is affirmed.
In this opinion ROGERS, C. J., and PALMER, EVELEIGH, McDONALD and ROBINSON, Js., concurred.
ZARELLA, J.
Notes
“You will recall that I have ruled that some testimony and evidence have been allowed for a limited purpose or for application to one defendant. Any testimony or evidence which I identified as being limited to a purpose or a defendant, you will consider only as it relates to the limits for which it was allowed, and you shall not consider such testimony and evidence in finding any other facts as to any other issue or defendant.
“A) CONSTANCY OF ACCUSATION EVIDENCE
“The complainant testified here in court before you. You may use her testimony as evidence and proof of the facts asserted in that testimony and give it the weight you find is reasonable.
“The state offered evidence of out-of-court statements made by the complainant to other persons that the defendant sexually assaulted her. Those persons to whom the state alleges that she made such statements are: [the complainant’s stepsister, D, and her former boyfriend, S]. Under our law, the testimony of these witnesses was limited in its scope to the fact and timing of the complainant’s complaint, the time of place of the alleged sexual assaults and the identity of the alleged perpetrator. Each of these people testified as to the statemеnts the complainant made to each of them regarding the defendant sexually assaulting her.
“This evidence is to be considered by you only in determining the weight and credibility you will give the complainant’s testimony as it pertains to WHETHER OR NOT THE COMPLAINANT TOLD THE WITNESSES ABOUT THE ALLEGED sexual assault. This evidence of out-of-court statements by the complainant of a sexual assault against her by the defendant is not to be considered by you to prove the truth of the matter asserted in those out-of-court statements.
“The state offered evidence of out-of-court statements made by the complainant to other persons that the defendant sexually assaulted (him/her). Those persons to whom the state alleges that (he/she) made such statements are: <identify the witnesses>. Under our law, the testimony of these witnesses was limited in its scope to the fact and timing of the complainant’s complaint, the time and place of the alleged sexual assault(s) and the identity of the alleged perpetrator. Each of these people testified as to the statements the complainant made to each of them regarding the defendant sexually assaulting (him/her).
“This evidence is to be considered by you only in determining the weight and credibility you will give the complainant’s testimony as it pertains to the charge(s) of sexual assault. This evidencе of out-of-court statements by the complainant of a sexual assault against (him/her) by the defendant is not to be considered by you to prove the truth of the matter asserted in those out-of-court statements.
“In determining whether or not these out-of-court statements corroborate the complainant’s testimony in court, you should consider all of the circumstances under which they were made and to whom and whether the statements made to these persons were or were not consistent with the complainant’s testimony in court.
“If you find any delay in (his/her) reporting the alleged incidents, you may consider such delay and any reasons which you may find for such delay in evaluating (his/her) testimony given in court.
“To the extent you find that what (he/she) has said outside the courtroom is consistent with (his/her) testimony in court, you may find (his/her) testimony in court to be corroborated or supported with respect to the fact and timing of (his/her) complaint, the time and place of the alleged sexual assault(s) and the identity of the alleged perpetrator. To the extent you find that what (he/she) has said outside the courtroom is inconsistent with (his/her) testimony in court, you may consider the degree of inconsistency which you find, and you may consider the reasons which you may find for the inconsistency, in evaluating (his/her) testimony given in court.” (Emphasis omitted; footnote omitted.)
Practice Book § 16-20 provides in relevant part: “An appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. . . .” “It is [this court’s] long-standing position that [t]o review [a] claim, which has been articulated for the first time on appeal and not before the trial court, would result in a trial by ambuscade of the trial judge.” (Internal quotation marks omitted.) State v. Darryl W., 303 Conn. 353, 371, 33 A.3d 239 (2012).
In the present case, defense counsel submitted a written request to charge and, after the trial court rejected it at the charging conference, argued at trial that the court should use the standard criminal jury instruction on constancy evidence rather than the court’s proposed instruction because the proposed instruction failed to clearly explain that the constancy evidence could not be used to establish the truth or substance of the victim’s complaint. Thereafter, defense counsel did not object to the trial court’s instruction directly after it was given. Rather, the defense waited until two months later at the sentencing hearing in a motion to set aside the verdict and for a new trial, in which the defendant argued that “the jury was at least confused by the instruction.” At that time, the defendant contended that the instruction reasonably could be understood as allowing the jury to use the constancy evidence to corroborate the substance of the victim’s testimony. He also contended that the court’s use of the word “corroboration” in its instruction was unclear and sent the wrong message to the jury. Thus, although the defendant’s argument in support of his posttrial motion was more specific than defense counsel’s previous objection to the trial court’s proposed instruction following the charging conference, defense counsel’s prior argument sufficiently preserved the defendant’s jury instruction claim on appeal because that claim makes exactly the same underlying point, namely, that the instruction did not clearly convey to the jury that the constancy of accusation evidence could not be used to corroborate the truth or substance of the victim’s complaint. Accordingly, we conclude that the defendant’s claim of instructional impropriety is reviewable. See, e.g., Neuhaus v. DeCholnoky, 280 Conn. 190, 216 n.18, 905 A.2d 1135 (2006) (considering three new arguments in support of plaintiff’s appellate claim that defendant owed continuing duty to plaintiffs because arguments were made in context of general claim that defendant was under continuing duty to plaintiffs, which claim was consistently advanced in trial сourt and at all stages of appeal).
(1) (B) REQUESTED CHARGE: “Under our law, the testimony of these witnesses was limited in its scope to the fact and time of the complainant’s complaint, the time and place of the alleged sexual assaults and the identity of the allege perpetrator.”
(2) (A) CHARGE GIVEN: “If you find their testimony credible as to what [the victim] told them, however, you may only thereupon find that these statements corroborate or support her own testimony. In other words, they are a factor in your determination as to what weight and credibility you will give to [the victim’s] testimony as it pertains to the charges of sexual assault.”
(2) (B) REQUESTED CHARGE: “This evidence is to be considered by you only in determining the weight and credibility you will give the complainant’s testimony as it pertains to WHETHER OR NOT THE COMPLAINANT TOLD THE WITNESSES ABOUT THE ALLEGED sexual assault.”
(3) (A) CHARGE GIVEN: “You may not deem this evidence of out-of-court statements by the [victim] that [the defendant] perpetrated a sexual assault against her as proof of the truth of what those out-of-court statements asserted.”
(3) (B) REQUESTED CHARGE: “This evidence of out-of-court statements by the complainant of a sexual assault against her by the defendant is not to be considered by you to prove the truth of the matter asserted in those out-of-court statements . . . .”
(4) (A) CHARGE GIVEN: “In determining whether or not these out-of-court statements corroborate [the victim’s] testimony in court, you should consider all of the circumstances under which they were made and to whom, and . . . whether the statements made to those persons were or were not consistent with [the victim’s] testimony . . . in court.”
(4) (B) REQUESTED CHARGE: “In determining whether or not these out-of-court statements corroborate the complainant’s testimony in court THAT SHE TOLD THESE WITNESSES OF THE ALLEGED SEXUAL ASSAULTS, you should consider all of the circumstances under which they were made and to whom and whether the statements made to these persons were or were not consistent with the complainant’s testimony in court.”
“The law recognizes that people might assume that anyone subjected to a sexual offense would complain within a reasonable time to someone to whom (he/she) ordinarily would turn for sympathy, protection or advice. If there was no evidence that (the complainant) made such a complaint, some might conclude that no sexual offense occurred.
“As a result, in cases involving an allegation of a sexual offense, the state is permitted in certain circumstances to introduce evidence of out-of-court statements to other persons about what occurred. The only reason that the evidence is permitted is to negate the inference that (the complainant) failed to confide in anyone about the sexual offense. In other words, the narrow purpose of the constancy evidence is to negate any inference that (the complainant) failed to tell anyone about the sexual offense and, therefore, that (the complainant’s) later assertion could not be believed.
“Constancy evidence is not evidence that the sexual offense actually occurred, or that (the complainant) is credible. It merely serves to negate any inference that, becаuse of (the complainant’s) assumed silence, the offense did not occur. It does not strengthen (the complainant’s) credibility. It does not prove the underlying truth of the sexual offense. Constancy evidence only dispels any negative inference that might be made from (the complainant’s) assumed silence.
“In determining whether a complaint was in fact made, you may consider all the relevant factors in evidence. These include (the complainant’s) age, demeanor, background, and relationship with both the defendant and the person(s) to whom the complaint was made. You may also consider the timeliness of the complaint, the context in which the complaint was made, any circumstances that would explain the delay in making the complaint and whether the complaint was volunteered or the result of an interrogation. It is up to you to determine what the facts are with regard to the circumstances of the complaint and what weight to give to these facts in determining whether a complaint was made.
“As I have indicated earlier, this testimony was for a limited purpose. The making of a complaint is not an element of the offense. Proof that a complaint was made is neither proof that the sexual offense occurred nor proof that (the complainant) was truthful. It merely dispels any negative inference that might arise from (the complainant’s) assumed silence. It eliminates any negative inference that (the complainant’s) claims of having been sexually assaulted are false because of the complainant’s) assumed failure to have confided in anyone about the sexual offense.”
“At the same time, however, [the court] conclude[s] that—setting aside the outdated notions [on] which the doctrine traditionally has rested—the limited, nonhearsay evidence that in the past has been admitted under the [fresh complaint] doctrine nonetheless is, in most instances, properly admissible at trial under generally applicable evidentiary standards.
“Accordingly, [the court] conclude[s] that the formulation and parameters of the [fresh complaint] doctrine . . . should be revised to reflect a more accurate understanding of the proper basis for the admission of such evidence. . . . [U]nder principles generally applicable to the determination of evidentiary relevance and admissibility, proof of an extrajudicial complaint, made by the victim of a sexual offense, disclosing the alleged assault, may be admissible for a limited, nоnhearsay purpose—namely, to establish the fact of, and the circumstances surrounding, the victim’s disclosure of the assault to others—whenever the fact that the disclosure was made and the circumstances under which it was made are relevant to the trier of fact’s determination as to whether the offense occurred. Under such generally applicable evidentiary rules, the timing of a complaint (e.g., whether it was made promptly after the incident or, rather, at a later date) and the circumstances under which it was made (e.g., whether it was volunteered spontaneously or, instead, was made only in response to the inquiry of another person) are not necessarily determinative of the admissibility of evidence of the complaint. Thus, the ‘freshness’ of a complaint, and the ‘volunteered’ nature of the complaint, should not be viewed as essential prerequisites to the admissibility of such evidence.” (Emphasis omitted.) Id.