State v. Busque
| Decision Date | 17 June 1993 |
| Docket Number | No. 9727,9727 |
| Citation | 623 A.2d 532,31 Conn.App. 120 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Robert BUSQUE. |
Susan M. Hankins, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellant (defendant).
James M. Ralls, Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and Rosita M. Creamer, Sr. Asst. State's Atty., for appellee (state).
Before EDWARD Y. O'CONNELL, LAVERY and LANDAU, JJ.
The defendant appeals from a judgment of conviction, rendered after a jury trial, of four counts of second degree sexual assault in violation of General Statutes § 53a-71(a)(1), 1 one count of attempted second degree sexual assault in violation of General Statutes §§ 53a-49(a) 2 and 53a-71(a)(1) and five corresponding counts of risk of injury to a child in violation of General Statutes § 53-21. 3 A sentence of fifty years incarceration, suspended after twenty-five years, with five years probation, was imposed.
On appeal, the defendant claims that the trial court (1) improperly allowed the defendant to be cross-examined regarding prior, uncharged acts of misconduct and then improperly allowed the state to impeach him with rebuttal evidence of prior, uncharged misconduct, (2) improperly allowed the state to impeach a defense witness with a specific prior act of misconduct, (3) improperly instructed the jury that sexual intercourse was, per se, a violation of General Statutes § 53-21, risk of injury to a child, and (4) violated the defendant's right against double jeopardy by convicting him four times for second degree sexual assault and risk of injury to a child for the same allocated acts. We reverse the judgment of the trial court on the first issue because the rebuttal testimony was more prejudicial than probative, and remand the case for a new trial. Consequently, we do not reach the merits of the remaining issues because they are unlikely to be encountered in a new trial.
The jury could reasonably have found the following facts. The victim, referred to throughout the trial as Miss Doe, is the defendant's daughter. On July 2, 1988, the victim's fourteenth birthday, the defendant sexually assaulted her, forcing her to engage in sexual intercourse. The defendant again forced the victim to engage in sexual intercourse on his birthday, July 30, 1988, on an unspecified date in the fall of that year, and again on December 24, 1988.
On January 30, 1989, at 6:30 a.m., the defendant told his daughter that she was not going to school, and attempted to assault her sexually. The defendant struck the victim in the face, and dragged her into his bedroom. He pushed her backward onto the bed, and tried to unbutton her pants. The victim told the defendant that she had to use the bathroom, got up, and ran downstairs and out of the house. The defendant pursued her onto the street, calling after her. The victim went to a neighbor's house where she telephoned her aunt and a friend, and told them about the incident that had just occurred and about previous incidents of sexual abuse involving her father. A gynecological examination of the victim on February 3, 1989, revealed medical evidence consistent with the victim's allegations.
During the trial, the victim also testified to a pattern of sexual abuse by her father which began when she was five years old and was interrupted for several years while the defendant was stationed abroad with the army and while he was serving a prison sentence for a previous crime. The defendant denied every allegation of sexual abuse made by his daughter.
The following course of events, which took place at the trial, are pertinent to the resolution of this appeal. The victim testified that when she was eight years old she and her father moved to New Britain to stay with D, the defendant's sister and the victim's aunt, and with D's daughter E, the victim's cousin. The victim told her cousin about the defendant's previous sexual abuse of her. At trial, the victim testified that the defendant had told her that he used to engage in sexual activity with E, his niece.
When E testified during the state's case-in-chief, she said that before the defendant and his second wife, Aileen Busque, were married, she warned Aileen that the defendant had demonstrated a violent tendency in the past, and had engaged in sexual activity with her and the victim. The state sought to allow E to testify about the defendant's sexual abuse of her. During an offer of proof outside the presence of the jury, E described how the defendant had initiated sexual activity with her when she was fourteen, and how that activity had progressed from fondling to oral sex and to intercourse. She told the court that the defendant had threatened to kill her if she told anyone about the sexual activity. E also described an incident in which the defendant had fired a pistol at her and she had been injured by flying glass. The state asked that E be allowed to testify before the jury about the defendant's prior misconduct with her in order to show that the defendant's abuse of his niece and daughter showed a common design or plan. The court, following the offer of proof, noted that there was a "strong similarity" between the activities involving the two girls, but ruled that E's testimony would be more prejudicial than probative, and did not allow it to go before the jury.
During the defendant's case-in-chief, the defendant testified on his own behalf. Following direct examination, he was cross-examined by the state's attorney. During cross examination the following exchange occurred:
Later during the state's cross-examination of the defendant, the state's attorney asked the defendant if he had sexually assaulted his niece, E, and the defendant denied that he had.
On the basis of the exchange quoted previously, the state again sought to allow E to testify before the jury regarding the defendant's prior sexual activity with her. The state asked that E be permitted to testify as a rebuttal witness on the issue of the defendant's credibility. The court ruled that E would be allowed to testify as to the defendant's prior misconduct with her, but that the testimony could be considered by the jury only in terms of the defendant's credibility. The court addressed the jury with a limiting instruction before E testified, reminding the jury that the testimony was being offered only to shed light on the defendant's credibility. When E took the stand, she testified that the defendant arranged to sleep in the same bedroom with her by fabricating a story about his needing someone else in the room at night because he suffered from nightmares. She went on to describe in graphic detail how the defendant forced her to engage in sexual activity when she was fourteen and fifteen years of age. She described how the activity progressed from fondling to oral sex and to intercourse. E also described physical violence perpetrated against her by the defendant.
The defendant's first claim involves two issues. First, the defendant claims that the trial court improperly allowed the state to cross-examine him regarding evidence of prior misconduct not related to veracity. Second, he claims that the trial court improperly allowed the state to introduce extrinsic evidence on rebuttal with respect to the alleged prior misconduct. We decline to review the first issue of the defendant's claim, but agree with the defendant's position because the rebuttal evidence was more prejudicial than probative.
The defendant initially claims that the trial court improperly allowed the state to cross-examine him with regard to prior acts of misconduct not related to veracity. We choose not to review this claim because it was not properly preserved for appeal.
Our review of the transcript reveals that when defense counsel objected to cross-examination of the defendant about prior misconduct, he did not state that he was objecting because the questions the state asked did not pertain to veracity. Instead, counsel stated that his objection was "based on the argument we had earlier, Your Honor." 4
We have carefully examined the earlier argument referred to in the trial transcript. The discussion to which defense counsel referred ensued when he made an oral motion asking the court to define the limits of the state's cross-examination of the defendant and rebuttal following his testimony. It appears that defense counsel anticipated that his client would testify about the shooting incident involving the defendant and his niece, and was concerned that if testimony by the defendant about that issue would "open the door" to cross-examination about the defendant's prior sexual misconduct with E. Properly, the trial court refused to speculate on this issue, and told defense counsel that the state could cross-examine the defendant on anything about which he testified. At no time during this colloquy did the issue of cross-examination regarding prior misconduct not pertaining to veracity, which the defendant raises on appeal, arise.
Our rules of practice require that when an objection to the admission of evidence is made "counsel shall state the...
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