State v. Angell

• Decision Date: 22 February 1995
• Docket Number: No. 12359,12359
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Paul ANGELL.

Page 263

651 A.2d 263

36 Conn.App. 383

STATE of Connecticut v. Paul ANGELL.

No. 12359.

Appellate Court of Connecticut.

Argued Sept. 19, 1994.

Decided Dec. 20, 1994.

Certification Granted, Limited to the Following Issue Feb. 22, 1995.

R. Jeffrey Lyman and Patricia E. McCooey, with whom, on the brief, was Linda L. Morkan, Hartford, for appellant (defendant).

Pamela S. Meotti, Deputy Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and James Turcotte, Asst. State's Atty., for appellee (State).

Before LANDAU, SPEAR and FREDERICK A. FREEDMAN, JJ.

SPEAR, Judge.

The defendant appeals from the judgment of conviction of sexual assault in the second degree and risk of injury to a child in violation of General Statutes §§ 53a-71 ¹ and 53-21 ² respectively. He claims that the trial court improperly (1) permitted the state to introduce constancy of accusation evidence, (2) refused to instruct the jury on the credibility of a child witness, and (3) abused its discretion by refusing to give a missing witness jury instruction. ³ We affirm the trial court's judgment.

The jury reasonably could have found the following facts. The nine year old victim ⁴ 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 ⁵ 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.

I

The defendant first asserts that the trial court improperly admitted constancy of accusation evidence. He claims that the admission of the victim's journal entry, her statement to Miranda, and the testimony of Karen Gaube and the victim's parents violated his right to confront witnesses under the sixth amendment to the United States constitution.

Before we address the merits of the defendant's claims, we must determine whether they were properly preserved. We turn first to the journal entry and Miranda's testimony. At trial, the defendant objected to the admissibility of the victim's statement to Miranda and the journal entry on evidentiary grounds. ⁶ On appeal, the defendant did not brief the evidentiary claims asserted at trial, but instead raised a constitutional basis for his objection. Pursuant to Practice Book § 288, ⁷ an objecting party must state the grounds on which an objection is taken. See State v. Harrison, 34 Conn.App. 473, 482, 642 A.2d 36, cert. denied, 231 Conn. 907, 648 A.2d 157 (1994). As in Misiurka v. Maple Hill Farms, Inc., 15 Conn.App. 381, 544 A.2d 673, cert. denied, 209 Conn. 813, 550 A.2d 1083 (1988), the defendant's failure to make the confrontation claim in the trial court denied that court "an opportunity to reexamine its ruling at a time when it could still be modified and any defect cured." Id., at 385, 544 A.2d 673.

The defendant's reliance on a footnote in State v. Bethea, 24 Conn.App. 13, 585 A.2d 1235, cert. denied, 218 Conn. 901, 588 A.2d 1076 (1991), is misplaced. In Bethea, this court held that when the defendant objected to a police officer's relating what he had been told by the victim of a sexual assault, an objection to the admission of a tape recording of that interview on "essentially the same" grounds adequately preserved the constancy of accusation claim as to the tape recording. In Bethea, we rejected the state's claim that admission of the tape recording should not be reviewed because the defendant neither submitted a proposed jury instruction to limit the use of the evidence for corroboration nor objected to the limiting instruction given by the court. Our review in Bethea included "the subissues of whether that matter involved a hearsay exception or corroboration of a prior statement of the victim." State v. Bethea, supra, at 17 n. 2, 585 A.2d 1235. We ruled that those subissues, relating only to the nature of constancy evidence, were sufficiently subsumed within the defendant's objection to allow review. That ruling is not authority for the proposition that the evidentiary objection here preserved a completely unarticulated constitutional claim. As the trial court had no opportunity to rule on the confrontation issue, the journal and Miranda's testimony were not properly preserved for appellate review.

We next address the question of whether these claims, as well as the concededly unpreserved claims as to the constancy testimony of Karen Gaube and the victim's parents are reviewable under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). In Golding, the Supreme Court held that "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude 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." Id.

"The first two conditions are determinations of whether a defendant's claim will be reviewed, and the third condition involves a review of the claim itself. Wilson v. Cohen, 222 Conn. 591, 603, 610 A.2d 1177 (1992); State v. Graham, 33 Conn.App. 432, 442, 636 A.2d 852 (1994); see also State v. Thurman, 10 Conn.App. 302, 306, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987)." State v. Smith, 35 Conn.App. 51, 55, 644 A.2d 923 (1994); State v. Crosby, 34 Conn.App. 261, 264, 641 A.2d 406, cert. denied, 230 Conn. 903, 644 A.2d 916 (1994).

Although the record is adequate to review the confrontation claims and they are of constitutional magnitude, we conclude that the defendant's claim founders on the third prong of Golding because the alleged violation does not clearly exist.

The defendant relies on White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992), for the proposition that Connecticut's constancy of accusation hearsay exception is not "firmly rooted" enough to withstand a sixth amendment confrontation clause challenge. In White, the victim, who was four years old at the time of trial, never testified because she experienced emotional difficulties each time she was brought into the courtroom. The child's mother, a babysitter, a police officer, an emergency room nurse and a physician were all allowed to relate the child's statements describing the assault. The testimony was admitted under the "spontaneous declaration" and "statements made in the course of seeking medical treatment" exceptions to the hearsay rule. The issue in that case was "whether the Confrontation Clause of the Sixth Amendment requires that, before a trial court admits testimony under the 'spontaneous declaration' and 'medical examination' exceptions to the hearsay rule, the prosecution must either produce the declarant at trial or the trial court must find that the declarant is unavailable." White v. Illinois, supra, 502 U.S. at 348-49, 112 S.Ct. at 739. The Supreme Court affirmed the Illinois Appellate Court's holding that such procedures are not constitutionally required.

The petitioner in White made no claim that, had the victim testified, the other testimony would, nevertheless, have violated the confrontation clause. The defendant here does not rely on the holding in White, but rather asserts that a footnote ⁸ in the opinion mandates a reversal here. He claims that the White footnote dictates that only "firmly rooted" exceptions to the hearsay rule are considered sufficiently reliable to satisfy the reliability requirement of the confrontation clause and that Connecticut's constancy of accusation doctrine meets none of the criteria laid down in the footnote for determining whether a hearsay exception is "firmly rooted." We disagree.

In Idaho v. Wright, 497 U.S. 805, 817, 110 S.Ct. 3139, 3147, 111 L.Ed.2d 638 (1990), the United States Supreme Court stated: "Admission under a firmly rooted hearsay exception satisfies the constitutional requirement of reliability because of the weight accorded long standing judicial and legislative experience in assessing the trustworthiness of certain types of out-of-court statements." (Emphasis added.) In Connecticut, constancy of accusation evidence is indeed a long standing exception to the hearsay rule. In State v. Kelley, 229 Conn. 557, 563-64, 643 A.2d 854 (1994), our Supreme Court rejected the defendant's claim that constancy testimony did not fall within a recognized hearsay exception. In ...