State v. Dabkowski

• Court: Supreme Court of Connecticut
• Writing for the Court: Before PETERS; ARTHUR H. HEALEY
• Citation: 199 Conn. 193,506 A.2d 118
• Parties: STATE of Connecticut v. Edward DABKOWSKI, Jr.
• Decision Date: 18 March 1986

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506 A.2d 118 199 Conn. 193 STATE of Connecticut
v.
Edward DABKOWSKI, Jr. Supreme Court of Connecticut. Argued Dec. 5, 1985.
Decided March 18, 1986.

[199 Conn. 194] Monte P. Radler, Sp. Public Defender, for appellant (defendant).

John M. Massameno, Asst. State's Atty., with whom, on brief, were John M. Bailey, State's Atty., Edward Spinella, Former Asst. State's Atty., and William R. Domnarski, Sp. Deputy Asst. State's Atty., for appellee (State).

Before [199 Conn. 193] PETERS, C.J., and HEALEY, DANNEHY, SANTANIELLO and CALLAHAN, JJ.

[199 Conn. 194] ARTHUR H. HEALEY, Associate Justice.

After a trial to the jury on a two-count information, the defendant was found guilty of sexual assault in the first degree, in violation of General Statutes § 53a-70,

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and guilty of unlawful restraint in the first degree, in violation of General Statutes § 53a-95. ¹ This appeal followed.

On appeal, the defendant claims that the trial court erred (1) in admitting certain hearsay statements under the constancy of accusation doctrine because the "current breadth" of the hearsay exception which allows such testimony both as to the facts and contents of that accusation is no longer justified because of current developments in the law, and (2) in refusing to permit defense counsel to pursue, during cross-examination, a line of questioning involving the victim's "prior sexual activity within the two or three day period prior" to the alleged assault.

The jury could reasonably have found, inter alia, the following facts. On February 2, 1980, the victim C, then [199 Conn. 195] eighteen years of age, met the defendant, an acquaintance, at a tavern in Bristol at about 6 or 6:30 p.m. She had had one drink of Seagram's and Seven at that tavern prior to his arrival there. He bought her another Seagram's and Seven as they talked. At about 8:30 p.m., C, the defendant, and a male friend left that tavern to go to another bar in an effort to meet C's sister there. C drove her own car while the defendant and his friend followed her in the defendant's Cadillac. C dropped her car off at her home and then got into the defendant's car. When the three arrived at the second bar, they did not find C's sister there. While there, the defendant bought C another Seagram's and Seven. All three left the bar together and the defendant dropped his male friend off at the latter's home. At about 9:30 p.m., the defendant and C drove to the house of one of the defendant's friends to buy some drugs. After going into his friend's house alone, the defendant returned with three quaalude tablets which he and C divided and consumed. C washed these drugs down with some beer that the defendant had with him. The two then went to a third bar where C began to feel the effects of the alcohol and the drugs. She felt dizzy, had trouble focusing and rested her head on the bar. Meanwhile, the defendant played pool and drank some alcoholic beverages. The defendant bought her yet another Seagram's and Seven. The bartender took note of her condition and, after speaking to the defendant about it, gave her some coffee.

The defendant and C left this bar between 10 and 10:30 p.m., and he assisted her into the front seat of his car as she had difficulty walking and entering the car. C believed that the defendant was taking her home and she fell asleep. She awoke a short time later to find that the defendant had driven her to a secluded area in Southington and the next thing she knew he was pulling her pants off. Her pants tore as he pulled them off. [199 Conn. 196] She resisted, screaming and fighting, as he punched her and threatened to kill her. She tried to escape and while she was outside the car with her pants and panties off, the defendant dragged her on the ground back to the car. He held her and compelled her to engage in oral intercourse in the rear seat of the car. He attempted vaginal intercourse, but, according to the victim, he never ejaculated.

The assault left her with ripped clothing, bruises and scratches on her buttocks, facial bruises and some marks on her neck. During the assault, she scratched the defendant on the face. Before the defendant left the scene, he searched the area for his wallet and a package of Marlboro cigarettes which he had lost. He then drove her to B's house and she told B what had happened. B, who was a friend of C's family, immediately telephoned C's sister about the assault. B drove her home where she told her sister and her parents about the assault. Thereafter, C, her sister, her parents and B went to the Southington police department after first having tried unsuccessfully to find the wallet and

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cigarettes the defendant had lost at the assault scene. After giving a statement to policewoman Elizabeth Keegan, C was examined by a physician at New Britain General Hospital. Thereafter, between 5 and 6 a.m., C and the police went to the scene of the attack where they found the defendant's wallet and his Marlboro cigarettes.

At the trial, B, Keegan, C's sister and Detective Stanley Porter ² each testified, over defense objection of hearsay, ³ as to what C had told each of them about the assault, including the details related to them by her. [199 Conn. 197] In each instance, the trial court admitted this evidence under the "constancy of accusation" exception to the hearsay rule. ⁴ See, e.g., State v. Ouellette, 190 Conn. 84, 92, 459 A.2d 1005 (1983).

Essentially, the defendant argues that we should overrule our precedential case law and hold that the "current breadth" of the constancy of accusation testimony exception to the hearsay rule is no longer justified because of contemporary developments in the law and in psychiatry. ⁵ His

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fall-back position is that if we [199 Conn. 198] do not repudiate that exception completely, we should at least hold that it does not permit such testimony to include the details of the crime involved. ⁶ The formulation of these positions, as now made on appeal, were not articulated in that manner in the trial court. Nevertheless, we do not dispose of this phase of his appeal by simply saying that we have been given no persuasive reason for overruling our oft-repeated precedents on this subject. The claims were functionally made and the record is adequate for our review. In [199 Conn. 199] rejecting the defendant's claims, we have not forgotten that " ' "[e]xperience can and often does demonstrate that a rule, once believed sound, needs modification to serve justice better." ' " State v. Longo, 192 Conn. 85, 95, 469 A.2d 1220 (1984) (A. Healey, J., dissenting), quoting Connecticut Junior Republic v. Sharon Hospital, 188 Conn. 1, 17-18, 448 A.2d 190 (1982). The flexibility and capacity of the common law is its genius for growth and adaptation. "When common-law principles are no longer supportable in reason they are no longer supportable in fact." Pendexter v. Pendexter, 363 A.2d 743, 749 (Me.1976) (Dufresne, C.J., concurring); see Handeland v. Brown, 216 N.W.2d 574 (Iowa 1974).

The target of the defendant's first claim of error is an evidentiary rule of long standing in this jurisdiction. "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. De Wolf, 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. 667, 163 A. 256].' " State v. Brice, 186 Conn. 449, 453, 442 A.2d 906 (1982). Just recently we have reiterated that "[t]here can be no serious question concerning the viability of the 'constancy of accusation' [199 Conn. 200] exception to the hearsay rule in sex-related cases...." State v. Ouellette, supra, 190 Conn. 97, 459 A.2d 1005.

In pressing his argument for repudiating or, in the alternative, greatly constricting the constancy of accusation exception, the defendant asserts that the latest legislative developments "reflect a far more progressive approach to the prosecution of sexual crimes." The defendant points to legislative action in 1974 that, in repealing General Statutes § 53a-68, eliminated the requirement of corroboration to sustain a conviction in particular sexual offenses. ⁷ The legislative history of the

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repeal of § 53a-68 does not aid the defendant. 17 S.Proc., Pt. 3, 1974 Sess., pp. 1306-1310; 17 H.R.Proc. Pt. 4, 1974 Sess., pp. 2005-2010. In viewing § 53a-68 as a "capricious law" and as operating to cast complainants in such cases in an undignified, discriminating and demeaning manner, legislators urged that "the credibility of the plaintiff should be the sole requirement" and indicated that the jury could properly decide where the truth was. ⁸ 17 S.Proc., Pt. 3, 1974 Sess., pp. 1308, 1309; 17 H.R.Proc., Pt. 4, 1974 Sess., pp. 2005, 2006. There can be no question of the [199 Conn. 201] wisdom of the enlightened action of the legislature in repealing § 53a-68. In recognizing the legislative policy decision in repealing § 53a-68; see generally State v. Gilletto, 98 Conn. 702, 714, 120 A. 567 (1923); we acknowledge that relevant established principles militate against the defendant's claim. When the legislature acts, it is presumed to know the state of the law....