State v. Daniel W. E.

• Citation: 322 Conn. 593,142 A.3d 265
• Decision Date: 23 August 2016
• Docket Number: No. 19341.,19341.
• Court: Supreme Court of Connecticut
• Parties: STATE of Connecticut v. DANIEL W. E.

322 Conn. 593

142 A.3d 265

STATE of Connecticut

v.DANIEL W. E.^*

No. 19341.

Supreme Court of Connecticut.

Argued Sept. 8, 2015.

Decided Aug. 23, 2016.

Glenn W. Falk, assigned counsel, Madison, for the appellant (defendant).

Marjorie Allen Dauster, senior assistant state's attorney, with whom were Andrew J. Slitt, assistant state's attorney, and, on the brief, Patricia M. Froehlich, state's attorney, for the appellee (state).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.

ZARELLA

, J.

Following a jury trial, the defendant, Daniel W. E., was found guilty of two counts of sexual assault in the first degree in violation of General Statutes § 53a–70 (a)(2)

and one count of risk of injury to a child in violation of General Statutes (Rev. to 2001) § 53–21(a)(2). The victim, his daughter, was between six and nine years old at the time of the assaults. The trial court rendered judgment in accordance with the jury verdict and sentenced the defendant to a total effective sentence of twenty-five years incarceration followed by twenty years of special parole. On appeal, ¹ the defendant claims that the trial court improperly instructed the jury on the use of constancy of accusation evidence and that the constancy of accusation doctrine, particularly in child sexual abuse cases, should be abandoned or modified because of increased public awareness regarding the reasons why children delay in reporting sexual abuse. The defendant further claims that the testimony of multiple constancy witnesses is unnecessary and prejudicial, and that other ways exist of ensuring fairness to the victim. The state responds that the trial court properly instructed the jury on the use of constancy evidence and that the defendant has failed to offer any cogent rationale for modifying or abandoning the doctrine. We conclude that the trial court's jury instruction was proper but that the constancy of accusation doctrine should be modified.

The record reveals the following relevant facts and procedural history. The victim was born in March, 1996. In 2001, after her parents separated, the victim was living with her mother and two brothers in the town of Plainfield, and the defendant was living with his parents in the town of Brooklyn. From the time she was six years old, the victim and her brothers visited the defendant every other weekend. During each visit, the defendant sexually assaulted the victim at least once for the next three years. The assaults usually occurred in the bedroom or during bath time, when the defendant and the victim were alone. On one occasion, when the victim's younger brother awoke from a nap in the children's bedroom and asked why the defendant was lying on top of the victim, the defendant responded, “[t]his is our thing.” The visits and the assaults ceased when the victim was nine years old.

The victim did not remember the assaults as painful and did not tell her mother, her grandparents or her pediatrician about them because she did not know they were wrong. She simply thought the defendant was doing “what fathers and daughters did.” Although she repeatedly asked the defendant to stop, he continued the abuse. The victim's only complaint to her mother about the visits was the presence of cigarette smoke inside the house, which made her feel sick. Both of the victim's older stepsisters, M and D, also were sexually abused by the defendant when they were very young, but the victim was unaware of this when she was being abused.

In 2007, after D told the victim that she had been sexually abused in the past, the victim confided in D that she had been sexually assaulted by the defendant over an extended period of time, and then started crying.² D responded that the victim should tell her mother or report the abuse to the police, but the victim did not do so. Two years later, in October, 2009, the victim also told a former boyfriend, S, during a telephone conversation that she had been sexually abused by the defendant multiple times.

In October, 2009, after the victim finally told her mother, she reported the abuse to the police. The report was triggered by an incident involving the victim and the defendant at a restaurant. The victim had arranged to meet the defendant at the restaurant, even though she was not permitted to contact him at that time and had not obtained her mother's permission or informed her about the arrangement. Upon initially meeting and hugging the defendant, the victim noticed the defendant had an erection. This caused her to have flashbacks regarding her past abuse by the defendant and prompted her to tell the police. She also told the police she had had a brief sexual relationship with her then boyfriend, B, a few months earlier.

The state arrested the defendant and charged him with two counts of sexual assault in the first degree and one count of risk of injury to a child. The defendant elected to be tried by a jury. In a pretrial motion in limine, the defendant requested, among other things, that the trial court (1) give a limiting instruction regarding any properly admitted constancy of accusation evidence, (2) exclude all constancy evidence, including any direct or indirect reference thereto, until after the victim testified, (3) preclude constancy evidence derived from reports after the victim's official complaint to the police or the Department of Children and Families, (4) limit “ ‘corroborative’ ” evidence to the fact and timing of the victim's complaint, when, where, and to whom the complaint was made, and the identity of the alleged perpetrator, and (5) exclude cumulative constancy evidence to the extent its probative value was outweighed by its prejudicial effect and the jury was likely to treat the evidence as substantive evidence of the defendant's guilt. The defendant also urged the trial court to instruct the jury that any delay by a victim in reporting a complaint of sexual abuse to a friend or relative affects the weight to be given such evidence and should be considered by the jury. The defendant argued in part that, although the constancy of accusation doctrine has a long history in Connecticut, its continued relevance requires reconsideration because its underlying rationale has been increasingly questioned in recent years.

Following a hearing, during which counsel for both parties failed to engage in any substantive argument,³ the trial court granted the motion in limine insofar as it sought to limit constancy evidence to statements made prior to the victim's official report of abuse and to preclude such evidence considered potentially redundant or cumulative. The court emphasized that it would not exclude any evidence at that time but that defense counsel could object if he believed the assistant state's attorney (prosecutor) was not exercising reasonable restraint. Thereafter, in its preliminary instructions to the jury, the trial court included a general instruction that certain evidence admitted at trial was to be considered only for a limited purpose and that the court would identify this evidence at the time of its admission.⁴

At trial, defense counsel did not object when the victim testified that she had never told anyone about the abuse until several years later. When the prosecutor called S as the first constancy witness, however, defense counsel objected to his testimony on hearsay grounds. After the court overruled the objection, S testified that the victim told him during a telephone conversation in 2009 that the defendant had molested her “multiple times” when she was five or six years old.

He also testified that, two days later, he urged the victim in another telephone conversation to tell her mother about the abuse.

D, the second constancy witness, testified without objection that the victim told her she had been sexually abused by the defendant over a long period of time, and then started crying. The victim's mother also testified without objection that the victim did not tell her about the abuse until 2009 or 2010, even though the mother had explained “good touch-bad touch” to the victim when the victim was younger and that no healthcare provider had noted the presence of injuries during regular pediatric checkups from 2001 to 2004 that might have been caused by sexual abuse.

Erica Kesselman, a physician who examined the victim in December, 2009, after the victim reported the abuse to the police, testified that, although she observed injuries to the victim that could have been caused by the victim's consensual sexual relationship with B during the summer of 2009, the injuries also were consistent with the victim's reported history of sexual abuse and with medical findings concerning girls who have been forcibly penetrated before reaching puberty. Kesselman further testified that the fact that the victim had been sexually active for a brief time prior to reporting the abuse to the police did not affect her conclusions because the victim's injuries were more common in abuse cases than in cases in which there has been consensual intercourse.

Theresa Montelli then testified for the state as an expert witness regarding the characteristics of sexually abused children. She explained that there is often a delay in reporting abuse due to factors such as the family relationship between the child and the abuser, the abuser's telling the child to keep the abuse a secret, the child's loyalty to the abuser, the child's difficulty in talking about the abuse, threats or coercion by the abuser, and the child's feelings of fear, shame and self-blame. Montelli also testified that children sometimes fail to realize that what is happening to them is wrong, and they only become aware of this at some later time, such as in a health class at school. She added that disclosure by many children may involve a process in which they begin by revealing to a friend only a little about what happened and gradually provide more detailed information during an investigation or...