State v. Brice

Citation442 A.2d 906,186 Conn. 449
CourtSupreme Court of Connecticut
Decision Date16 March 1982
PartiesSTATE of Connecticut v. Norberto BRICE.

Bruce A. Sturman, Asst. Public Defender, with whom, on the brief, was Jerrold H. Barnett, Public Defender, for appellant (defendant).

Bernard D. Gaffney, Asst. State's Atty., with whom, on the brief, was John M. Bailey, State's Atty., for appellee (State).

Before SPEZIALE, C. J., and PETERS, HEALEY, PARSKEY and ARMENTANO, JJ.

ARTHUR H. HEALEY, Associate Justice.

On October 4, 1979, the defendant was found guilty on a trial to the court, after pleading not guilty and electing to waive a jury, 1 of committing the crime of sexual assault in the first degree in violation of General Statutes § 53a-70. He was sentenced to serve a term of not less than four nor more than nine years at the correctional institution at Somers. The defendant has appealed alleging error in the admission and characterization of certain evidence.

The sexual assault occurred on the evening of December 23, 1978, behind a vacant building located at 187 Franklin Avenue in Hartford. The victim, aged nineteen at the time of the assault, had met the defendant, whose nickname was "Milkbone," a week or two before December 23 at a park and recreation center also located in Hartford. On December 23, the victim was walking to visit a friend, Marie, who lived on Franklin Avenue when she came upon the defendant, who then joined her. After meeting with Marie and Marie's boyfriend, Joey, the four visited a grinder shop on Franklin Avenue. Marie and Joey soon departed, leaving the defendant and the victim. Since the defendant was concerned that he might be arrested on some outstanding warrants, he suggested that he and the victim leave the grinder shop and cross the street so that they could sit on the steps of a vacant building located at 187 Franklin Avenue.

While sitting on the steps of the vacant building, the two talked, drank some coffee and smoked some marijuana. Suddenly, the defendant struck the victim in the face and stated that if she "didn't give him what he wanted he would take it." The victim began to cry and the defendant told her to shut up. He told her that he had to urinate and that she shouldn't attempt to run away. The defendant then grabbed her and took her to a location to the rear of the building. It was dark and there were no lights at this time. While urinating, he produced a utility knife which was about four inches long. He then took her farther back behind the rear of the building where he held the dull side of the knife to the victim's face while threatening to "slice her" if she did not have sexual relations with him. While pointing the knife directly at her, he pushed her to the ground. The victim removed her pants and underclothes and the defendant subjected her to vaginal intercourse. They remained in this position for about one hour.

After the victim got up from the ground, the defendant forced her to her knees and demanded that she perform fellatio upon him. Instead, the victim clawed the defendant's testicles with her fingernails. The defendant screamed and ran toward Franklin Avenue allowing the victim to flee from the scene. She thought she left behind her comb and a shoe. The victim flagged down a car and asked to be taken directly to the home of her boyfriend, Carmine, who lived on Victoria Road. At Carmine's house, she told him what had happened and stated "that Milkbone had raped me." 2 The victim refused to speak with anyone else but Carmine. He notified the police, who came to Carmine's home, and she was transported, by ambulance, to Hartford Hospital. The police later recovered the victim's shoe and comb along with the defendant's knife at the scene of the assault.

The defendant claims that the trial court erred in allowing witnesses to recite the victim's accusation against the defendant, because, on direct examination, the victim never testified that she told those witnesses that she had been sexually assaulted by the defendant. He also claims that the court erred in unfairly characterizing the evidence, namely, the hospital's medical report, thereby depriving him of his right to due process.

I

The defendant's first claim is that the court committed error by allowing certain witnesses to testify that the victim stated that the defendant had raped her. Specifically, he claims that while the "constancy of accusation" exception to the hearsay rule allows such testimony of a witness to be admitted to corroborate the victim's testimony, it is incumbent upon the victim first to testify that she told any such witness that she was sexually assaulted. Since the victim in the present case testified that she told only one witness, Carmine, that the defendant had raped her, the defendant argues that the admission of the other witnesses' testimony was erroneous. 3

In sex-related crime cases, we have long recognized that a witness, to whom a victim has complained of the offense, could testify "not only to the fact that a complaint was made but also to its details." State v. Segerberg, 131 Conn. 546, 549, 41 A.2d 101 (1945). See State v. Greene, 161 Conn. 291, 294, 287 A.2d 386 (1971); State v. Gelinas, 160 Conn. 366, 367, 279 A.2d 552 (1971); State v. Purvis, 157 Conn. 198, 207, 251 A.2d 178 (1968), cert. denied, 395 U.S. 928, 89 S.Ct. 1788, 23 L.Ed.2d 246 (1969); State v. Dziob, 133 Conn. 167, 169, 48 A.2d 377 (1946); State v. Orlando, 115 Conn. 672, 677, 163 A. 256 (1932); State v. Sebastian, 81 Conn. 1, 5, 69 A. 1054 (1908); State v. Byrne, 47 Conn. 465, 466 (1880); State v. Kinney, 44 Conn. 153, 155-57 (1876); State v. DeWolf, 8 Conn. 93, 99 (1830). "Such testimony is admitted ... when the complainant first has testified, in court, to the facts of the alleged occurrence, in order to corroborate her testimony. State v. Orlando, supra, 115 Conn. at (677, 163 A. 256). She is then permitted to state that she made complaint to some other person. Thereupon, the person to whom she complained, out of court and in the absence of the defendant is permitted to testify ...." State v. Segerberg, supra, 131 Conn. at 549, 41 A.2d 101. 4 The corroborating statements are "received to shew (sic) constancy in the declarations of the witness." (Emphasis in original.) State v. DeWolf, supra, 100; see State v. Orlando, supra. "It is manifest that the rule of 'constancy of accusation' applies only when the complainant has testified." State v. Segerberg, supra, 131 Conn. at 549, 41 A.2d 101.

At trial, five different witnesses testified that the victim stated that the defendant had raped her. The victim testified that she told one witness, Carmine, that the defendant had raped her 5 but couldn't remember if she told anyone else. Since the Segerberg case, supra, requires that the victim first testify that she made the accusation to other persons, the testimony of the remaining four witnesses concerning the "constancy of accusation" might have been excluded, upon a proper objection, because the victim did not so testify. 6 Upon reviewing the transcript, however, we conclude that no proper objection was made, nor was an exception taken to any of this testimony.

The transcript reveals that when Officer Peter Darby of the Hartford Police Department attempted to testify about the statements made by the victim, the defendant objected on the ground that such testimony would be repetitious. 7 When Officer Jerome Johnson, also of the Hartford Police Department, testified as to what the victim said, the defendant made no objection at all. The victim's mother testified to what her daughter had told her concerning the attack and the defendant's objection, based on the repetitiousness and the timeliness of the statements, was overruled. 8 The final witness to testify about the victim's complaints against the defendant was Detective Robert Lajoie of the Hartford Police Department. Again, the defendant's objection on the ground of repetitiousness was overruled. 9

" 'Once counsel states the authority and ground of his objection, any appeal will be limited to the ground asserted.' Borucki v. MacKenzie Bros. Co., 125 Conn. 92, 3 A.2d 224 (1938); State v. Rado, 172 Conn. 74, 81, 372 A.2d 159 (1976); State v. Johnson, 166 Conn. 439, 444-45, 352 A.2d 294 (1974); Salvatore v. Hayden, 144 Conn. 437, 443, 133 A.2d 622 (1957)." State v. Adams, 176 Conn. 138, 144-45, 406 A.2d 1 (1978); see also Practice Book § 3063. "To assign error in the court's evidential ruling on the basis of objections never raised at the trial amounts to trial by ambuscade of the trial judge. State v. DeGennaro, 147 Conn. 296, 304, 160 A.2d 480, cert. denied, 364 U.S. 873, 81 S.Ct. 116, 5 L.Ed.2d 95 (1960) ... 'This court is not bound to consider claims of law not made at the trial. Harry v. Bidwell, 149 Conn. 93, 98, 175 A.2d 704 (1961). This rule applies to criminal as well as civil cases. State v. Sul, 146 Conn. 78, 81, 147 A.2d 686 (1958). While it is true that we have applied this rule with some flexibility in capital cases, such as in State v. Walters, 145 Conn. 60, 138 A.2d 786 cert. denied, 358 U.S. 46, 79 S.Ct. 70, 3 L.Ed.2d 45 (1958), and State v. Reid, 146 Conn. 227, 149 A.2d 698 (1959), this policy does not permit a defendant in a criminal case to fail, whether from a mistake of law, inattention or design, to object to matters occurring during a trial until it is too late for them to be corrected or even considered and then, if the outcome proves unsatisfactory, to raise them for the first time on an appeal. Under such a procedure (1) claims of error would be predicated on matters never called to the attention of the trial court and upon which it necessarily could have made no ruling in the true sense of the word; and (2) the appellee, here the state, would be lured into a course of conduct at the trial which it might have altered if it had any inkling that the accused would, in the event of a...

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