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State v. Daniel W. E.

Supreme Court of Connecticut

August 23, 2016

STATE OF CONNECTICUT
v.
DANIEL W. E.[*]

          Argued September 8, 2015

          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).

          Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.

          OPINION

          ZARELLA, J.

         Following a jury trial, the defendant, Daniel W. E., was found guilty of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and one count of risk of injury to a child in violation of General Statutes (Rev. to 2001) § 53-21 (a) (2). The victim, his daughter, was between six and nine years old at the time of the assaults. The trial court rendered judgment in accordance with the jury verdict and sentenced the defendant to a total effective sentence of twenty-five years incarceration followed by twenty years of special parole. On appeal, [1]the defendant claims that the trial court improperly instructed the jury onthe use of constancy ofaccusation evidence and that the constancy of accusation doctrine, particularly in child sexual abuse cases, should be abandoned or modified because of increased public awareness regarding the reasons why children delay in reporting sexual abuse. The defendant further claims that the testimony of multiple constancy witnesses is unnecessary and prejudicial, and that other ways exist of ensuring fairness to the victim. The state responds that the trial court properly instructed the jury on the use of constancy evidence and that the defendant has failed to offer any cogent rationale for modifying or abandoning the doctrine. We conclude that the trial court’s jury instruction was proper but that the constancy of accusation doctrine should be modified.

         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 an extended period of time, and then started cry-ing.[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 not obtained her mother’s permission or informed her about the arrangement. Upon initially meeting and hugging the defendant, the victim noticed the defendant had an erection. This caused her to have flashbacks regarding her past abuse by the defendant and prompted her to tell the police. She also told the police she had had a brief sexual relationship with her then boyfriend, B, a few months earlier.

         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 S as the first constancy witness, however, defense counsel objected to his testimony on hearsay grounds. After the court overruled the objection, S testified that the victim told him during a telephone conversation in 2009 that the defendant had molested her ‘‘multiple times’’ when she was five or six years old. He also testified that, two days later, he urged the victim in another telephone conversation to tell her mother about the abuse.

         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 tothe 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 summerof2009, 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 investigation 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 court rejected counsel’s proposed instruction during an in-chambers charging conference, counsel requested that the court use Connecticut’s standard criminal jury instruction[6]because of differences in ‘‘semantics, language [and] placing of the paragraphs’’ that rendered the standard instruction purportedly less prejudicial than the trial court’s proposed instruction. Counsel specifically argued that there were ‘‘subtle’’ differences between language in the trial court’s instruction and language in the standard instruction pertaining to what was to be corroborated by the constancy testimony. He explained his concern that such testimony might be construed by the jury as corroborating the substance of the victim’s complaint to the witnesses rather than the fact that the victim had complained, and that the court’s proposed instruction did not make this distinction clear. He conceded that the standard instruction and the court’s proposed instruction were ‘‘pretty much the same, ’’ but, ‘‘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 instruction is] a little bit less prejudicial . . . .’’

         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 andbecauseshe had shownnooutward 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 that the state did corroborate her testimony. You heard from [S], who’s known her since he was seven [years old]. [She] told [him] in 2009, ‘my father raped me multiple times.’ That was his testimony. Also, [D]. She’s known [the victim] for ten years, [and] considers her her sister. What . . . did [the victim] say to [D]? ‘My dad raped me.’ And I cried-or she then cried and then . . . told [D] it happened often and for a long time. Think about how those two statements are consistent with each other and with what [the victim] told you.’’ The prosecutor also referred to the fact that the victim’s mother, D, S, and Kesselman all testified that the defendant had sexually assaulted the victim.[7]

         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 and 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, and you may also consider the reasons which you find for this inconsistency as you evaluate her testimony.

         ‘‘[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. . . . [T]he instruction was reasonably understood by the jury to mean that the constancy evidence in fact corroborated the [victim’s] testimony, and the jury could not reasonably distinguish between the corrobo-ration 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 contended 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 standard 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 in child sexual abuse cases. We consider each claim in turn.

         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 todetermine whether it is reasonably [probable] that the jury could have been misled . . . . While a request to charge that is relevant to the issues in a case and that accurately states the applicable law must be honored, a [trial] court need not tailor its charge to the precise letter of such a request. . . . If a requested charge is in substance given, the [trial] court’s failure to give a charge in exact conformance with the words of the request will not constitute a ground for reversal. . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper. . . . Additionally, we have noted that [a]n [impropriety] in instructions in a criminal case is reversible . . . when it is shown that it is reasonably possible for [improprieties] of constitutional dimension or reasonably probable for nonconstitutional [improprieties] that the jury [was] misled.’’ (Internal quotation marks omitted.) State v. Baltas, 311 Conn. 786, 808-809, 91 A.3d 384 (2014). Jury instructions regarding constancy of accusation testimony are nonconstitutional in nature. See, e.g., State v. Rivera, 145 Conn.App. 344, 351-53, 76 A.3d 197 (trial court’s failure to give limiting instruction as to constancy of accusation testimony was not matter of constitutional magnitude), cert. denied, 310 Conn. 962, 83 A.3d 344 (2013); State v. Wild, 43 Conn.App. 458, 467, 684 A.2d 720 (same), cert. denied, 239 Conn. 954, 688 A.2d 326 (1996). ‘‘A challenge to the validity of jury instructions presents a question of law over which [we exercise] plenary review.’’ (Internal quotation marks omitted.) State v. Bonilla, 317 Conn. 758, 770, 120 A.3d 481 (2015).

         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 § 6-11 (c) of the Connecticut Code of Evidence, which provides: ‘‘A person to whom a sexual assault victim has reported the alleged assault may testify that the allegation was made and when it was made, provided the victim has testified to the facts of the alleged assault and to the identity of the person or persons to whom the assault was reported. Any testimony by the witness about details of the assault shall be limited to those details necessary to associate the victim’s allegations with the pending charge. The testimonyof the witnessis admissible only to corroborate the victim’s testimony and not for substantive purposes.’’ Troupe and § 6-11 (c) of the Connecticut Code of Evidence, in turn, are the basis for standard criminal jury instruction 7.2-1; see footnote 6 of this opinion; which the defense urged the trial court to give to the jury following the court’s rejection of its original request to charge.

         In the present case, even considering the state’s improper suggestion during rebuttal argument that the constancy of accusation evidence supported the substance of the victim’s claim, we conclude it is not reasonably probable that the trial court’s limiting instruction on constancy evidence misled the jury. The court closely followed the language of Troupe and the Connecticut Code of Evidence when instructing that the victim’s out-of-court statements to S and D that the defendant had sexually assaulted her were admissible only ‘‘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.’’ The court also instructed that the testimony of the constancy witnesses, iffound credible by the jury, could be used to ‘‘corroborate or support [the victim’s] 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.’’ The court subsequently added that ‘‘[the victim’s] delay in reporting the alleged incidents is also something you may consider in assessing her ...


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