State v. Burney, 18098.

CourtSupreme Court of Connecticut
Citation954 A.2d 793,288 Conn. 548
Decision Date19 August 2008
Docket NumberNo. 18098.,18098.
PartiesSTATE of Connecticut v. Curtis BURNEY.

Lisa J. Steele, special public defender, for the appellant (defendant).

Harry Weller, senior assistant state's attorney, with whom were Jessica Ragosta, certified legal intern, and, on the brief, John Fahey, senior assistant state's attorney, and Jessica Probolus, special assistant state's attorney, for the appellee (state).

ROGERS, C.J., and KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

ZARELLA, J.

The sole issue in this appeal is whether the trial court improperly admitted testimony by two constancy of accusation witnesses regarding the demeanor of a sexual assault victim at the time she reported the assault. The defendant, Curtis Burney, appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1), two counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a)(1), and one count each of kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A), risk of injury to a child in violation of General Statutes (Rev. to 2003) § 53-21(a)(2), and threatening in the second degree in violation of General Statutes § 53a-62(a)(1). On appeal, the defendant claims that the trial court improperly permitted two constancy of accusation witnesses to testify regarding the victim's demeanor when she reported the sexual assault. We disagree and, accordingly, affirm the judgment of the trial court.

From the evidence adduced at trial, the jury reasonably could have found the following facts. In October 2003, the victim1 was a fifteen year old high school student. On Wednesday, October 22, 2003, she was absent from school due to a suspension for fighting. The victim was good friends with the defendant's daughter and made arrangements that day to meet her at the defendant's house at 11:30 a.m. At around 11 a.m., when the victim arrived at the defendant's home, the defendant was the only person in the house. After entering the house, the victim joined the defendant in the living room to watch television, seating herself on a couch opposite the defendant. The victim was comfortable treating the defendant's home as her own because of her friendship with the defendant's daughter and the fact that the defendant and the victim's mother also were friends.

Soon thereafter, the defendant left the living room briefly and, upon returning, closed the door to the room and sat down next to the victim on the couch. The defendant tried to kiss the victim, who pushed him away. He then put his hands on her thighs and said, "you're my pretty young thing." When the victim told the defendant to get away from her, the defendant responded: "[Y]ou're going to give me what I want or I'm going to kill you."

The defendant then proceeded to assault the victim sexually. At one point, the victim tried to stand up, but the defendant pushed her back down onto the couch and continued to assault her. During the assault, the defendant asked the victim if she liked it, to which she did not respond.

Thereafter, the defendant withdrew his penis, ejaculated on the floor in front of the couch, and wiped up his semen with a rag. The entire assault lasted approximately fifteen minutes. After dressing quickly, the victim attempted to leave. Before the defendant allowed her to go, however, he threatened that he knew when her mother went to work and that "it would be it for [her]" if she told anyone about the incident.

After the assault, the victim walked straight home, took a shower and went out briefly to pick her brother up at the school bus stop and bring him home. At no point during the remainder of that day or the days that followed did the victim tell anyone about the assault.

On Tuesday, October 28, 2003, the victim returned to school following the completion of her suspension. That day, she told Susan Thorpe, a teacher in whom she often confided, that her best friend had been raped. The following day, the victim spoke to Thorpe again, this time telling her that she had been raped by the defendant at his home. The victim appeared scared and was shaking and crying as she reported the sexual assault to Thorpe.

Thorpe brought the victim to the school's resource officer, East Hartford police officer Peter Slocum. The victim told Slocum that the defendant had raped her the prior week. While reporting the incident to Slocum, the victim appeared scared and upset and, at one point, went to the corner of Slocum's office to throw up into a trash can.

The victim was examined by a physician on October 31, 2003, nine days after the assault. The exam was inconclusive, neither confirming nor disproving that the victim had been raped. No traces of semen or other physical evidence were uncovered during the course of the medical examination.

On November 18, 2003, the defendant went to the East Hartford police department, at which time the police informed him of the allegations against him. The defendant consented to a search of his home and then returned home alone. Approximately twenty minutes later, the police arrived at his home and conducted a search of the area where the assault allegedly had occurred. The officers observed that the floor in front of the couch and a couch cushion were damp and appeared to be stained. The officers also noted a bucket of water with a mop in it just outside the room. Although several items from the home were sent to the state forensic science laboratory for testing, the police discovered no physical evidence directly linking the defendant to the sexual assault.

On February 2, 2004, the defendant was arrested in connection with the sexual assault of the victim. He was charged subsequently in a seven count information with two counts each of sexual assault in the first degree and sexual assault in the second degree, and one count each of kidnapping in the first degree, risk of injury to a child, and threatening in the second degree. The defendant pleaded not guilty to all charges and elected a jury trial.

The victim testified on the morning of the first day of trial, and her direct testimony is the source of much of the foregoing factual background. Thereafter, defense counsel conducted a vigorous cross-examination of the victim, focusing intently on her failure to report the assault to the police, her mother or anyone else in the six day interval between the date of the assault and her first day back at school. Defense counsel also attempted to elicit evidence from the victim and others establishing that the victim had been in the defendant's house voluntarily subsequent to the assault, and had even received a ride to school from the defendant without complaint or apparent fear or unease.

Prior to the conclusion of the cross-examination, and outside the presence of the jury, the court heard arguments regarding the admissibility of Thorpe's and Slocum's testimony concerning the victim's emotional state when she told them about the assault. The state sought to offer the testimony of Thorpe and Slocum to rebut defense counsel's impeachment of the victim on the basis of her failure to report the assault until seven days after it occurred. Defense counsel objected to the admission of the testimony on the ground that Thorpe and Slocum were presented as constancy of accusation witnesses and demeanor evidence is beyond the scope of constancy testimony under State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996).

After hearing the parties' arguments, the trial court characterized defense counsel's cross-examination of the victim regarding the time lapse before she reported the sexual assault and her subsequent interactions with the defendant as "fairly [effective]," and determined that Thorpe's and Slocum's testimony as to the victim's demeanor at the time she reported the assault was "not only appropriate but virtually essential. ..." The trial court ultimately allowed the state to elicit the demeanor testimony under State v. Ellison, 79 Conn.App. 591, 606, 830 A.2d 812, cert. denied, 267 Conn. 901, 838 A.2d 211 (2003), as a prior consistent statement to rehabilitate the victim's credibility insofar as it related to her delay in reporting the incident.

Thereafter, Thorpe and Slocum testified to the fact and timing of the victim's complaint and her identification of the defendant as her assailant. The state also elicited testimony from both witnesses regarding the victim's emotional state when she reported the assault. Immediately after Thorpe's direct examination testimony, the court gave the jury the following limiting instruction: "[T]his testimony is presented to you for the simple purpose of reflecting on the credibility of the [victim], to indicate that, [at] a time somewhere proximate to the events that are reported, she reported these events in general terms to somebody, in particular, this individual. It is being offered to prove that it was spoken in that time frame so that you may consider that fact as bearing upon her credibility as a witness in this trial. It is not offered for the truth of its contents and, as you observed, its contents have not been related to you in part for that purpose but just the fact of the report so that you may consider it in the time frame it was made and to the person made as bearing upon the credibility of her testimony at trial. That's the limited use for which [you] may consider it." The court gave a similar instruction after Slocum's testimony.

The jury returned a verdict of guilty as to each of the seven counts, and the trial court rendered judgment in accordance with the verdict.2 This appeal followed.3

The defendant claims that the demeanor testimony of Thorpe and Slocum was not admissible under the constancy of accusation doctrine set forth in State v. Troupe, supra, 237...

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