State v. Beliveau, 12390

• Decision Date: 10 February 1995
• Docket Number: No. 12390,12390
• Citation: 36 Conn.App. 228,650 A.2d 591
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Andrew BELIVEAU.

Page 591

650 A.2d 591

36 Conn.App. 228

STATE of Connecticut v. Andrew BELIVEAU.

No. 12390.

Appellate Court of Connecticut.

Argued Sept. 27, 1994.

Decided Nov. 29, 1994.

Ceritification Granted, Limited to the Following Issues Feb.

10, 1995.

Martin Zeldis, Asst. Public Defender, for appellant (defendant).

Carolyn K. Longstreth, Asst. State's Atty., with whom, on the brief, were James E. Thomas, State's Atty. and Dennis O'Connor, Asst. State's Atty., for appellee (state).

Before DUPONT, C.J., and HEIMAN and HENNESSY, JJ.

HEIMAN, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1) ¹ and sexual assault in the third degree in violation of General Statutes § 53a-72a(a)(1)(A). ² On appeal, the defendant asserts that the trial court improperly (1) restricted his cross-examination of various witnesses by refusing to permit him to question them concerning portions of the victim's statement to the police, thereby violating his constitutional right to confrontation, (2) permitted the use of hearsay evidence under the doctrine of constancy of accusation, (3) instructed the jury on the doctrine of constancy of accusation, and (4) failed to inform the defendant of possible noncompliance with his subpoena of the victim's counseling records. We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. At 11 p.m. on July 19, 1991, the nineteen year old victim began working her shift at the Cumberland Farms located at the intersection of Routes 4 and 69 in Burlington. She was scheduled to finish her shift at 7 a.m. the next day. The defendant, Andrew Beliveau, had been the store manager for approximately one month and was the victim's supervisor.

At about 2:30 a.m. on July 20, the defendant arrived at the store while the victim was working her shift. When he arrived, two customers were in the store, both of whom were known to the victim. The defendant told the two customers that they had to leave the premises and they did.

When the two customers left the store, the defendant locked the door and put out a sign indicating that the store would be closed for one-half hour. He then began to mop the floor to strip it of wax. The defendant stopped his work and went to a room in the rear of the store. He called the victim to come to that room and, when she responded, he requested that she hold a ladder so that he could climb up into a loft located above a large cooler. The victim complied with his request and the defendant climbed the ladder, holding a flashlight, and entered the loft. The victim then returned to the main part of the store to clean the coffeemaker.

The defendant again called for the victim to come to the back room. This time he asked her to climb the ladder to the loft and assist him in removing two pieces of sheetrock that were blocking a surveillance mirror located above the cooler. She complied with his request and climbed the ladder and entered the loft.

When the victim entered the loft, she noted that the only source of light was the flashlight that the defendant had carried up to the loft. She went to the area where the mirror was located and she and the defendant proceeded to remove the two pieces of sheetrock from the wall. The defendant and the victim were on their hands and knees because the ceiling in the loft was low and they could not stand. The defendant told the victim that he wanted to place a surveillance camera behind the mirror because he thought that inventory was being stolen and he hoped that with the use of a camera he would be able to detect the parties that were stealing from the store.

The defendant asked the victim to look through the mirror to the store below in order to help him determine the best angle at which to place the camera. In order to do so, the victim had to lie down on her right side. The defendant then crawled toward her, positioned himself on top of her and kissed her. She told him to stop and backed as far away from him as possible. Despite her protestations, the defendant continued to kiss her. The defendant then put his hand under the victim's shirt and touched her breast. She again asked him to stop. The defendant instead lifted her shirt, unhooked her brassiere and began to kiss her breasts. Again the victim told him to stop, but despite those repeated requests, the defendant continued this course of conduct.

The defendant pushed the victim's shoulder and forced her onto her back on the floor of the loft. The defendant removed the victim's sneakers and unbuttoned and unzipped her jeans. He then proceeded to pull her jeans down. During this time the victim continued to protest, demanding that the defendant stop. The defendant removed the victim's jeans.

The defendant moved on top of the victim and forced her legs apart with his legs. He then inserted his penis into the victim's vagina. After several minutes, the defendant withdrew and ejaculated on one of the pieces of sheetrock that had been removed from the mirror area. The defendant arose, put on his underpants and trousers that he had removed prior to his assault on the victim, and left the loft.

About five minutes later, the victim dressed and returned to the store area. She made coffee and used a napkin that was lying near the coffee machine to dry her tears so that she could reopen the store. The victim did not see the defendant for the remainder of her shift, nor did she call the police at that time.

The victim returned to work on Monday evening. During her shift, the victim spoke with Trooper Lucian St. Germain of the Connecticut state police who had come into the store to purchase a few items. The victim told St. Germain that she had a problem with the defendant, but did not discuss the nature of the problem.

On the evening of July 23, 1991, or early on July 24, Officer Peter Fernald of the Burlington police department came into the Cumberland Farms store as part of his scheduled patrol. He had been notified by St. Germain that the victim was having problems with the defendant and noticed that the victim appeared upset. He questioned her to determine what had happened, and the victim indicated that her problem concerned the defendant. The victim then began to relate to him the events of July 20, 1991. The victim became upset and Fernald decided to have a female trooper dispatched to the scene.

Later that morning, Fernald returned to the store accompanied by Trooper Christine Terlecky of the Connecticut state police. At that time, the victim recounted in greater detail the events that had occurred at the store on July 20. The victim was then taken to the Troop L barracks in Litchfield, where she gave a fully detailed written statement as to what had occurred between her and the defendant.

I

The defendant first asserts that he was denied his constitutional right to confrontation ³ when the trial court did not permit him to cross-examine various witnesses regarding a specific portion of the victim's statement to the police. The trial court excluded questions relating to that portion of the statement on the ground of relevancy. We agree with the determination of the trial court.

The following additional facts are necessary to resolve this issue. On July 24, 1991, the victim gave a detailed statement regarding the sexual assault to Terlecky at the Troop L barracks in Litchfield. The victim's S statement to the police consisted of five pages, the first one and one-quarter pages of which related her experience with a former manager of Cumberland Farms, the defendant's predecessor. The victim alleged that the former manager had made sexual advances toward her, which she rebuffed.

At trial, the defendant attempted to cross-examine the victim regarding her problems with the former manager. The state objected to the line of questioning, claiming that it was irrelevant, that it violated the rape shield laws, and that it exceeded the scope of direct examination. The trial court sustained the state's objection on the ground of relevancy. ⁴

Later in the trial, the state offered the testimony of Trooper Karl Golden, Jr., of the Connecticut state police. Golden testified that he had spoken with the victim on an unspecified date in July, 1991. At that time, the victim informed him that she was having problems of a sexual nature with an unnamed supervisor. She indicated that this unnamed supervisor was her present manager.

After the state's direct examination of Golden, the defendant requested argument to the court. The defendant claimed that Golden's testimony could have concerned the incident between the victim and the former manager, and that he should be permitted to recall the victim or question Terlecky about the entirety of the victim's statement to the police, including that portion of the statement that dealt with the victim's encounter with the previous store manager. The trial court indicated that it would rule on those issues at the time that they were raised. ⁵

Prior to Terlecky's taking the stand, the defendant again argued that he should be able to cross-examine her regarding the first one and one-quarter pages of the victim's statement to the police. His request was again denied on the ground of relevancy. The defendant did not attempt to recall the victim.

The defendant claims that the preclusion of that cross-examination impaired his constitutional right to confrontation. We are unpersuaded.

"There is no dispute that in the adversarial setting of a trial, the accused has a right under the confrontation clause to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, [can] appropriately draw inferences relating to the reliability of the [state's] witnesses." (Internal quotation marks omitted.) State v. Kelly, 208 Conn. 365, 375, 545 A.2d 1048 (1988). This right does not,...