State v. Cardany, 11743

• Decision Date: 30 August 1994
• Docket Number: No. 11743,11743
• Citation: 646 A.2d 291,35 Conn.App. 728
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Philip CARDANY.

Page 291

646 A.2d 291

35 Conn.App. 728

STATE of Connecticut v. Philip CARDANY.

No. 11743.

Appellate Court of Connecticut.

Argued June 1, 1994.

Decided Aug. 30, 1994.

Hubert J. Santos, with whom was Hope C. Seeley, Hartford, for appellant (defendant).

Mary H. Lesser, Asst. State's Atty., with whom, on the brief, were James E. Thomas, State's Atty., and Stephen Preleski, Asst. State's Atty., for appellee (state).

Before LANDAU, SPEAR and CRETELLA, JJ.

CRETELLA, Judge.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(2) and two counts of risk of injury to a child in violation of General Statutes § 53-21. ¹ The defendant claims that the trial court improperly (1) permitted testimony concerning the victim's delay in reporting the sexual assault, (2) charged the jury on reasonable doubt, and (3) permitted an expert witness to testify that the victim had been sexually assaulted. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim, a child under the age of thirteen, lived with her mother, her brother and her step-father, the defendant. On every Tuesday night for a number of years, the victim's mother would leave the house to play bingo, entrusting the care of the victim and her brother to the defendant. On those occasions, between November, 1986, and March, 1990, the defendant, on divers dates, entered the victim's room and fondled and touched her. Sometimes, the defendant would penetrate the victim's vagina with two fingers or his tongue. He would kiss her breasts and vagina or perform oral sex on her. The victim reported the incidents to her mother on June 4, 1990.

I

At trial, the state offered, over the defendant's objection, testimony from an Outreach advocate, who worked with victims of domestic violence, that it is not unusual for abuse victims to delay in reporting incidents of abuse. The defendant contends that this testimony was inadmissible because the defendant had not initially impeached the victim's credibility on the issue of delay. On appeal, the defendant also challenges the qualifications of the Outreach advocate as an expert.

In State v. Spigarolo, 210 Conn. 359, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989), the Supreme Court recognized that "the consequences of the unique trauma experienced by minor victims of sexual abuse are matters beyond the understanding of the average person." Id., 210 Conn. at 378, 556 A.2d 112. Therefore, the court held that "the state may offer expert testimony that seeks to demonstrate or explain in general terms the behavioral characteristics of child abuse victims [such as inconsistencies, partial disclosures and recantations] in disclosing alleged incidents." Id., at 380, 556 A.2d 112.

The Spigarolo court, however, specifically left open the question of whether the state could use such expert testimony in the absence of the defendant's impeachment of the victim's credibility. Id. We now hold that the state may introduce expert testimony that explains in general terms the tendency of minors to delay in reporting incidents of abuse once the victim has testified and there has been testimony introducing the alleged dates of abuse and reporting.

The rationale for allowing testimony in the state's case-in-chief to explain alleged delays in reporting incidents of abuse is analogous to the rationale for allowing constancy of accusation testimony, with or without actual impeachment.

The constancy of accusation doctrine " 'allows a complainant in a sexual offense case to testify that he or she informed others of the attack. These other individuals are then allowed to testify concerning the complaint made by the victim and are permitted to relate the details of the attack as the victim narrated.' " State v. Bailey, 32 Conn.App. 773, 778-79, 631 A.2d 333 (1993); State v. Saraceno, 15 Conn.App. 222, 247 n. 6, 545 A.2d 1116, cert. denied, 209 Conn. 823, 552 A.2d 431 (1988).

Constancy of accusation testimony is admissible whether or not the victim has been impeached by a suggestion of contrivance or recent fabrication. State v. Pollitt, 205 Conn. 61, 77-78, 530 A.2d 155 (1987). It is allowed, in part, to satisfy the jury that the victim behaved reasonably in light of the alleged assault. "If the victim's report had been immediate as would be expected ... the jury might logically infer that the victim's trial testimony more probably was truthful." State v. Parris, 219 Conn. 283, 291, 592 A.2d 943 (1991). On the other hand, "[a] delayed statement undermined the victim's credibility because it was considered 'obvious that for one who claims to have been [sexually abused] to have long kept silence about it, would, if unexplained, weaken the force of any testimony that [he or] she might give in court, in support of a prosecution for such an offense.' " Id., at 291 n. 12, 592 A.2d 943; State v. Sebastian, 81 Conn. 1, 6, 69 A. 1054 (1908).

It is natural for a jury to discount the credibility of a victim who did not immediately report alleged incidents of abuse whether or not the defense emphasizes the delay in cross-examination. Thus, testimony that explains to the jury why a minor victim of sexual abuse might delay in reporting the incidents of abuse should be allowed as part of the state's case-in-chief.

Next, the defendant claims on appeal that the Outreach advocate was not qualified as an expert, and, thus, does not satisfy the first prong of the test for admissibility of expert testimony. "A trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions.... The test for admissibility of expert testimony is whether (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues." (Citation omitted; internal quotation marks omitted.) State v. Christiano, 29 Conn.App. 642, 649-50, 617 A.2d 470 (1992), aff'd, 228 Conn. 456, 637 A.2d 382 (1994). Because there was no objection to the qualifications of the witness as an expert this issue was not preserved in the trial court. The defendant asks that the claim be reviewed under the doctrine of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or the plain error doctrine of Practice Book § 4185.

First, the defendant does not satisfy the conditions established in State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823. "[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate the harmlessness of the alleged constitutional violation beyond a reasonable doubt." Id. "The first two conditions are determinations of whether a defendant's claim will be reviewed, and the third condition involves a review of the claim itself." State v. Graham, 33 Conn.App. 432, 442, 636 A.2d 852, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994). "In the absence of any one of these conditions, the defendant's claim will fail." State v. Golding, supra, 213 Conn. at 240, 567 A.2d 823. In this case, the defendant fails to meet the second requirement because "the admissibility of expert testimony is a matter of state evidentiary law that, in the absence of timely objection, does not warrant appellate review under [Golding ] because it does not, per se, raise a question of constitutional significance." (Citation omitted.) State v. Joyner, 225 Conn. 450, 480, 625 A.2d 791 (1993); see also State v. Baldwin, 224 Conn. 347, 362, 618 A.2d 513 (1993).

Second, the defendant's claim fails under the "plain error" doctrine. Practice Book § 4185 states that "[t]he [appellate] court may in the interests of justice notice plain error not brought to the attention of the trial court." "Where a trial court's action does not result in any manifest injustice, a defendant's claim under the plain error doctrine does not warrant review.... Such review is reserved for truly extraordinary situations where the existence of error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings." (Citations omitted; internal quotation marks omitted.) State v. Morales, 33 Conn.App. 184, 197, 634 A.2d 1193 (1993), quoting State v. Wright, 207 Conn. 276, 288-89, 542 A.2d 299 (1988). In this case, the actions of the trial court did not rise to the level of plain error.

II

Next, the defendant challenges two aspects of the trial court's instructions on reasonable doubt: (1) portions of the specific language chosen by the court to describe the term "reasonable doubt," and (2) the failure of the trial court to include a portion of the defendant's request to charge.

A

In its charge to the jury, the trial court used well accepted language to define reasonable doubt. ² The trial court repeatedly emphasized throughout the entire charge that the state must overcome the defendant's presumption of innocence beyond a reasonable doubt, the state must prove each element of the crime beyond a reasonable doubt, and the defendant has no burden to prove anything.

It is fundamental that proof of guilt in a criminal case must be beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). However, "[l]ong ago, the United States Supreme Court said: 'Attempts to explain the term "reasonable doubt" ' do not usually result in...