State v. Angell

• Decision Date: 11 June 1996
• Docket Number: No. 15206,15206
• Citation: 237 Conn. 321,677 A.2d 912
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Paul ANGELL.

Page 912

677 A.2d 912

237 Conn. 321

STATE of Connecticut v. Paul ANGELL.

No. 15206.

Supreme Court of Connecticut.

Argued Oct. 27, 1995.

Decided June 11, 1996.

R. Jeffrey Lyman, Special Public Defender, with whom were Patricia E. McCooey and Bradford Babbitt, Special Public Defenders, and, on the brief, Linda L. Morkan, Special Public Defender, for appellant (defendant).

Margaret Gaffney Radionovas, Assistant State's Attorney, with whom, on the brief, were Michael Dearington, State's Attorney, James Turcotte, Assistant State's Attorney, and Pamela S. Meotti, Former Deputy Assistant State's Attorney, for appellee (State).

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON, NORCOTT, KATZ and PALMER, JJ.

PALMER, Associate Justice.

A jury convicted the defendant, Paul Angell, of sexual assault in the second degree in violation of General Statutes (Rev to 1989) *913s 53a-71(a)(1) ¹ and risk of injury to a child in violation of General Statutes (Rev. to 1989) § 53a-21. ² The defendant appealed from the judgment of conviction to the Appellate Court, which affirmed the judgment of the trial court. State v. Angell, 36 Conn.App. 383, 651 A.2d 263 (1994). We granted the defendant's petition for certification limited to the following issues: (1) "Whether the Appellate Court was correct in concluding that the defendant's federal constitutional rights of confrontation were not violated when the trial court admitted into evidence constancy of accusation testimony?" and (2) "Whether the Appellate Court was correct in concluding that the defendant's exception to the trial court's failure to instruct the jury on the credibility of a child witness was inadequate to preserve the issue for appeal?" State v. Angell, 232 Conn. 915, 655 A.2d 259 (1995). We affirm the judgment of the Appellate Court.

The facts that the jury reasonably could have found are set forth in the opinion of the Appellate Court. "The nine year old victim ³ 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 approximately 1 a.m. because the defendant ⁴ was touching her between her legs. Approximately thirty minutes later, the defendant took the victim into a bedroom. He told the victim to pull down her pants because he wanted to lick her private parts when he returned from the bathroom. While the defendant was in the bathroom, the victim went back into the living room where Karen Gaube and one of her children were sleeping. The victim positioned herself on the floor between them and the wall, and fell asleep.

"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 parents 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 December 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." ⁵ State v. Angell, supra, 36 Conn.App. at 384-85, 651 A.2d 263.

The defendant appealed from the judgment of conviction to the Appellate Court, claiming, inter alia, that the trial court improperly: (1) permitted the admission into evidence of constancy of accusation testimony in violation of his rights under the confrontation clause of the sixth amendment to the United States constitution; ⁶ and (2) refused to give the jury a supplemental instruction on the credibility of a child witness. The Appellate Court concluded, first, that the defendant's constitutional claim was foreclosed by our recent decision in State v. Kelley, 229 Conn. 557, 643 A.2d 854 (1994), and, second, that the defendant was not entitled to review of his claim of instructional impropriety because he had failed properly to preserve that claim for appeal. We agree with the Appellate Court that the defendant's constitutional claim is without merit. Although we disagree with the determination of the Appellate Court that the defendant's claim of instructional error was not preserved, we conclude that the trial court did not abuse its discretion in failing to give a supplemental jury charge on child credibility. Accordingly, we affirm the judgment of the Appellate Court.

I

The defendant first maintains that the introduction of constancy of accusation evidence ⁷ violated his rights under the confrontation clause of the sixth amendment to the United States constitution. In State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996), we have today considered and rejected the precise claim raised by the defendant in this appeal, concluding that the federal confrontation clause is not violated by testimony properly admitted into evidence under the constancy of accusation doctrine because such testimony is not admissible unless the victim testifies in court, and is therefore subject to cross-examination. Id., at 292-93, 677 A.2d 917. The defendant's sixth amendment claim is, therefore, without merit.

II

The defendant also contends that the Appellate Court improperly refused to review his claim of instructional error on the ground that the claim was not preserved for appeal because it had not been properly raised in the trial court. Although we agree with the defendant that the Appellate Court should have considered his claim, we reject the claim on the merits.

The following additional facts and procedural history are necessary to our resolution of this issue. The trial court, after completing its charge to the jury at the conclusion of the evidence, inquired whether the state or the defendant had any objections to the charge. The defendant objected to the trial court's failure to instruct the jury on the credibility of a child witness and the court noted the defendant's exception. ⁸ The trial court provided no explanation for its decision not to give such an instruction and the defendant did not request one. Finally, it is undisputed that the defendant had not submitted a request to charge on the issue of child credibility.

The Appellate Court concluded that the defendant's objection to the charge was insufficient to preserve the issue for appeal because he had failed to comply with Practice Book § 852. ⁹ Quoting from its decision in State v. Frye, 26 Conn.App. 472, 478, 602 A.2d 601 (1992), rev'd on other grounds, 224 Conn. 253, 617 A.2d 1382 (1992), the Appellate Court stated that Practice Book § 852 " 'applies only where the trial court has misstated the applicable law or where there is ambiguity in the jury charge. It does not apply where there is a failure to instruct on something that was never requested in writing prior to the jury instructions. It cannot be used to cure a failure to file a written request to charge.' " State v. Angell, supra, 36 Conn.App. at 392, 651 A.2d 263.

The defendant asserts that his claim of instructional impropriety was properly preserved by virtue of his timely exception to the trial court's failure to instruct the jury on the issue of child credibility. We agree.

"The rules of statutory construction apply with equal force to Practice Book rules." (Internal quotation marks omitted.) State v. Genotti, 220 Conn. 796, 807, 601 A.2d 1013 (1992). Thus, in attempting to discern the meaning of a particular section of our Practice Book, we look first to the language of the provision. See State v. Breton, 235 Conn. 206, 251, 663 A.2d 1026 (1995). In so doing, "[w]e construe words used in the Practice Book according to their commonly approved meaning." Lo Sacco v. Young, 210 Conn. 503, 507, 555 A.2d 986 (1989). If the language of the provision is clear and unambiguous, we will interpret it in accordance with its plain meaning absent a compelling reason to the contrary. See Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 195, 663 A.2d 1001 (1995). Finally, rules of criminal procedure, like penal statutes, "are to be strictly construed to protect the fundamental constitutional right to liberty." State v. Cook, 183 Conn. 520, 522, 441 A.2d 41 (1981).

The Appellate Court's conclusion that § 852 " 'applies only where the trial court has misstated the applicable law or where there is an ambiguity in the jury charge' " is inconsistent with the plain language of that section. There is nothing in the wording or phraseology of § 852 to support the conclusion that the rule applies to certain types of alleged instructional improprieties but not to others. Moreover, we see no overriding reason to limit the scope of the rule, the purpose of which is simply "to alert the court to any claims of error while there is still an opportunity for correction in order to avoid the economic waste and increased court congestion caused by unnecessary retrials...." (Citation omitted; internal quotation marks omitted.) State v. Fullwood, 193 Conn. 238, 259, 476 A.2d 550 (1984).

The state, however, suggests that a literal interpretation of § 852 will discourage the submission of requests to charge by defendants because, under such a construction, a claim of instructional error may be preserved without filing a requested jury instruction. We do not subscribe to this view. The state and the defendant share responsibility for providing the trial court with requests to charge that are tailored to the facts and issues of a particular case. By discharging that responsibility, the parties not only render important assistance to the trial...