State v. Brigandi

• Decision Date: 23 March 1982
• Citation: 442 A.2d 927,186 Conn. 521
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Joseph F. BRIGANDI.

Page 927

442 A.2d 927

186 Conn. 521

STATE of Connecticut v. Joseph F. BRIGANDI.

Supreme Court of Connecticut.

Argued Jan. 12, 1982.

Decided March 23, 1982.

Maxwell Heiman, with whom, on the brief, was William J. Tracy, Jr., Bristol, for appellant (defendant).

John F. Cronan, Deputy Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and Warren Maxwell, Asst. State's Atty., for appellee (state).

Before SPEZIALE, C. J., and PETERS, HEALEY, WRIGHT and SPONZO, JJ.

ARTHUR H. HEALEY, Associate Justice.

After a trial to a jury, the defendant was found guilty of sexual assault in the first degree in violation of General Statutes § 53a-70. ¹ The trial court denied his motion to set aside the verdict and this appeal followed. On appeal, he alleges that the court erred: (1) in admitting the victim's out-of-court statements identifying the defendant as her assailant; (2) in charging the jury with respect to evidence of constancy of accusation; (3) in finding the victim's ten-year-old son competent to testify; (4) in denying his motion for mistrial following the disqualification of a juror during the trial; and (5) in permitting the state to recall the victim as a witness and to reopen its case.

There was evidence ² presented at the trial from which the jury could reasonably have found the following: On July 1, 1978, the victim, her husband and their three children lived in a six-room home in Berlin. ³ At about 10:45 p. m. on that date, the victim was beaten and sexually assaulted in the bathroom of her home by a male wearing a stocking mask over his face. She recognized her assailant as the defendant ⁴ "right away" as she could see right through the stocking mask which was "like ladies' stockings, hosiery." She screamed and he hit her in the mouth "with a closed fist"; she screamed again and he hit her again in the mouth in the same way. He said, "Shut up or I will kill you." After taking the phone off the hook, he threw her onto the floor on her stomach, sat on her legs and tied her hands behind her back with the belt of her husband's bathrobe. He then pushed her into the bathroom, closed the door, ripped her nightgown off her shoulders down to her waist and ran his hands all over her body. At that point she felt "(p)etrified, scared to death."

Her oldest child, T, ten years of age, called her from upstairs. ⁵ She told the defendant that she had better talk to T or he would keep calling her. Thereupon the defendant pushed her down the hall to answer T, and, while the defendant stood behind her, she told T to go back to bed and that she would be up in a few minutes. When they returned to the bathroom the defendant put a child's pajama top on her head, pushed her down on her knees and "forced (her) to perform oral sex on him several times." He then told her to lean over the vanity in the bathroom and tried unsuccessfully to penetrate her anus. He again forced her to her knees and he did penetrate her anus. Thereafter, he turned her over on her back and penetrated her vagina.

The defendant told her to stay there in the bathroom until he got away; she did so for maybe thirty seconds until she heard him leave. She went to the bottom of the stairs where she called T. He came down and, at her request, removed the pajama top from her head. Because her hands were tied, she asked T to call the police; it was about five minutes after eleven o'clock. He did so and she spoke to the police with T holding the phone. She tried to reach her parents, but they were not at home. She then had T dial her in-laws. She spoke to her mother-in-law and asked her to come right over. Berlin Police Officers Chant and Russell responded to the call and came to the victim's residence in a cruiser. ⁶ When Chant arrived, approximately two minutes after being dispatched, he observed that the victim was bleeding from the mouth, that she had a ripped nightgown, that her hands were bound behind her and that she was hysterical. He attended her "mouth wound" and untied her hands.

Chant was the policeman who first asked the victim if she knew who her assailant was and she told him she did not know. The victim's in-laws then arrived. Russell ⁷ drove the victim and her mother-in-law to the emergency room of New Britain General Hospital. Chant did not accompany them to the hospital although he did drive to the hospital later to pick her up and bring her home. Approximately three hours later, during her return from the hospital in Chant's cruiser, she identified the defendant as her assailant. Upon her return from the hospital, the victim's statement was taken by supernumerary police officer Arlene Laviana at the Berlin police headquarters. ⁸ The victim told police officers, relatives and a clinical social worker that it was the defendant who had assaulted her.

I

Against the background of the circumstances already set out, we turn to the defendant's claims of error on the admission of certain evidence under the "constancy of accusation" exception to the hearsay rule and its instructions to the jury on that exception. The defendant claims that the admission of the victim's out-of-court statements identifying him as the assailant does not fall within the "constancy of accusation" hearsay exception because "an inconstancy of accusation" was shown by the evidence. He focuses on what occurred when the police first arrived at her home after being dispatched there at which time, prior to her going to the hospital, she told the police that she did not know who her assailant was. Her first statement, he argues, makes "a permanent break in the chain of constancy of accusation," and, because she was not constant in her accusations, her declarations were hearsay and thus erroneously admitted. In short, he maintains that the constancy of accusation exception is not applicable to this case. Moreover, because such declarations involved the identification of the defendant, he claims that their admission constituted prejudicial error. We do not agree with these claims.

In State v. Kinney, 44 Conn. 153 (1876), we affirmed and elucidated our rule on the "constancy of accusation" exception, originally laid down in State v. DeWolf, 8 Conn. 93 (1830). See also State v. Brice, 186 Conn. 449, 442 A.2d 906 (1982). In Kinney, we pointed out that the testimony of the woman upon whom the offense was allegedly committed could be confirmed ⁹ by testimony from witnesses to whom she had told the same story out of court. State v. Kinney, supra, 156. See State v. Segerberg, 131 Conn. 546, 549, 41 A.2d 101 (1945). We stated that for her to complain of the offense "would be natural if the crime had been committed, but very unnatural if it had not been." State v. Kinney, supra. Employing the same principle, we reasoned that her statement of the details ought to be admitted into evidence and that "(i)f her story was true, the evidence would show constancy in the charge even to the details ...." State v. Kinney, supra, 156. In State v. Purvis, 157 Conn. 198, 207-208, 251 A.2d 178 (1968), cert. denied, 395 U.S. 928, 89 S.Ct. 1788, 23 L.Ed.2d 246 (1969), which concerned our review of convictions of rape and kidnapping, we sustained the trial court's ruling admitting into evidence the testimony of a detective and a policewoman, who, after the victim had first testified to the details of the rape, were permitted to testify as to what she had related to them about the incident. State v. Purvis, supra, 207, 251 A.2d 178. In doing so, we said: "The ruling was in accord with the 'constancy of accusation' exception to the hearsay rule and with a long line of cases in which that exception has been recognized. State v. Dziob, 133 Conn. 167, 169, 48 A.2d 377 (1946) (incest); State v. Segerberg, 131 Conn. 546, 549, 41 A.2d 101 (1945) (indecent assault); State v. Orlando, 115 Conn. 672, 677, 163 A. 256 (1932) (indecent assault); State v. Kinney, 44 Conn. 153, 155 (1876) (rape); State v. DeWolf, 8 Conn. 93, 100 (1830) (attempt to commit rape)." State v. Purvis, supra, 157 Conn. at 207-208, 251 A.2d 178; see State v. Greene, 161 Conn. 291, 294-95, 287 A.2d 386 (1971); State v. Gelinas, 160 Conn. 366, 367, 279 A.2d 552 (1971); see also 2 Wharton, Criminal Evidence (Torcia 13th Ed.) § 313. ¹⁰

We cannot accept the defendant's claim that our "constancy of accusation" rule is not applicable in this case. The defendant would have the circumstance of the victim's telling the police, who came to her home within ten minutes after they were called, that she did not know her assailant be determinative of the issue of applicability of the "constancy of accusation" exception. Of course, this statement, per se, is not an "accusation" of anyone. Thus, her accusations against the defendant made shortly thereafter to several persons to whom she would naturally make a specific accusation were constant. In other words, once she made an accusation, it remained constant. This applies to such statements made to the victim's husband, mother-in-law, Chant and Laviana. There was evidence from her mother-in-law that, prior to leaving for the hospital and while in her bedroom, she told her mother-in-law that "she had been raped by a neighbor Joseph Brigandi." ¹¹ The victim repeated the accusation to Chant during the drive back from the hospital, to Laviana early in the morning of July 2, 1978, at the Berlin police headquarters and to her husband upon his return on July 2, 1978.

A close examination of the evidence before the jury discloses the reason why the victim told the police that she did not know who her assailant was. ¹² She testified: "The reason was because of my feelings for my son and for his (the defendant's) children." There was evidence before the jury that the victim's family and the Brigandi family were "socially friendly"; that the two couples visited with each other and on occasion went to dinner; that the two couples had been neighbors for about five years; that the...