State v. Daniels

• Decision Date: 18 March 1980
• Citation: 180 Conn. 101,429 A.2d 813
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Clarence DANIELS.

Page 813

429 A.2d 813

180 Conn. 101

STATE of Connecticut v. Clarence DANIELS.

Supreme Court of Connecticut.

Argued Nov. 16, 1979.

Decided March 18, 1980.

Bruce A. Sturman, Asst. Public Defender, with whom, on the brief, were Jerrold H. Barnett, Public Defender, and C. Douglas Nash, Asst. Public Defender, for appellant (defendant).

Richard L. Shiffrin, Asst. State's Atty., with whom, on the brief, were Donald A Browne, State's Atty., and Jonathan C. Benedict, Asst. State's Atty., for appellee (state).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, PETERS and HEALEY, JJ.

ARTHUR H. HEALEY, Associate Justice.

The defendant was convicted after a trial to the jury of sexual assault in the first degree in violation of General Statutes § 53a-70(a). ¹ The trial court denied his motion for a new trial, filed pursuant to Practice Book, 1963, § 2313 (now Practice Book, 1978, § 902), and for acquittal, filed pursuant to Practice Book, 1963, § 2310 (now Practice Book, 1978, § 899), and this appeal followed.

From the evidence the jury could reasonably have found the following facts which provide the setting for the claims pursued by the defendant on this appeal: At about 8 a. m. on July 9, 1978, the victim was in bed at her apartment in Father Panik Village in Bridgeport when she heard a knock on her door. After inquiring as to who was there, she admitted the defendant who she had known for approximately one month and who she had seen as recently as 2 a. m. that same morning. ² He stated that he wanted to use the bathroom. After doing so, he grabbed her, dragged her into the bedroom and forced her to have sexual intercourse with him. Before leaving her, the defendant told the victim that he was sorry and that she was not to tell "Donna" what had happened. Immediately after this incident, the victim dressed and went to the house of her girlfriend, Donna Bagley. The victim told Bagley that she had been raped and asked her to go to the hospital with her. ³ Because Bagley was unable to accompany the victim, another girlfriend, Edith Martin, took her by car to the Bridgeport Hospital where she was admitted to the emergency room at 9:08 a. m.

Dr. Frank Elliot was working in the emergency room at the Bridgeport Hospital on July 9, 1978, and he examined the victim on her admission to the emergency room. That examination disclosed, among other things, a small tear within the vagina which, according to his opinion, was caused by forceful entry. Laboratory testing for the presence of spermatozoa was positive. During the examination, the victim also related the circumstances of the attack and her concerns arising out of it. The hospital record was in evidence as an exhibit. ⁴ The testimony of a Bridgeport detective, assigned to the investigation on July 10, 1978, substantially corroborated the testimony of the victim.

I

The defendant's preliminary statement of issues enumerated six issues for review, but only two of them are briefed by the defendant. Those issues not briefed are considered abandoned. State v. Lockman, 169 Conn. 116, 121, 362 A.2d 920, cert. denied, 423 U.S. 991, 96 S.Ct. 403, 46 L.Ed.2d 309 (1975); State v. Bitting, 162 Conn. 1, 3, 291 A.2d 240 (1971). The defendant's first claim of error is two pronged. He claims that the court erred in admitting certain portions of the hospital record either (1) as a business record; or (2) as evidence tending to show constancy of accusation. The portion of the exhibit that generates this issue is the following notation: "Pt. appears ambivalent in also being afraid of reprisals from alleged attacker upon her return to her apartment in FPV (Father Panik Village)."

General Statutes § 4-104 provides that a hospital record may be admitted in evidence as a business record "if not otherwise inadmissible." See Kelly v. Sheehan, 158 Conn. 281, 285, 259 A.2d 605 (1969). This statute does not change any other rule of evidence but only simplifies the procedure for obtaining hospital records and facilitates their introduction into evidence. Temple v. F. W. Woolworth Co., 167 Conn. 631, 633, 356 A.2d 880, 882 (1975). "A hospital record as a whole is not necessarily admissible for all purposes or as proof of all facts found therein since the admissibility of a particular entry usually depends on whether it relates to acts, transactions, occurrences or events which are relevant and incident to the hospital treatment of the patient when the entry was made at the time of the patient's care and treatment. Maggi v. Mendillo, 147 Conn. 663, 165 A.2d 603; Ianni v. Daily, 153 Conn. 445, 217 A.2d 707; 42 Am.Jur.2d, Hospitals and Asylums, § 43; 32 C.J.S. Evidence § 728(c)." Ibid. The defendant's only argument on this ground is that the hospital entry in issue is not reasonably relevant to diagnosis and treatment. We have stated that "(t)he real business of a hospital is the care and treatment of sick and injured persons" and not the collection and preservation of information for use in litigation. D'Amato v. Johnston, 140 Conn. 54, 61, 97 A.2d 893, 897 (1953). Even before the passage of General Statutes § 4-104 in 1949, we recognized the admissibility of statements of a patient made to a physician for the purpose of diagnosis and obtaining treatment. Martin v. Sherwood, 74 Conn. 475, 482, 51 A. 526 (1902); Wilson v. Granby, 47 Conn. 59, 76 (1879); see 6 Wigmore, Evidence (3d Ed.) § 1719. The rationale of the rule is that ordinarily when a patient consults physicians with a view to diagnosis and treatment he will state the truth and that such statements are trustworthy. See Zawisza v. Quality Name Plate, Inc., 149 Conn. 115, 119, 176 A.2d 578 (1961); United States v. Narciso, 446 F.Supp. 252, 289 (E.D.S.D.Mich.1977), construing Fed.R.Evid. 803(4). ⁵

The admission of this portion of the hospital record was not error. Under the facts and circumstances of this sexual assault case, the statement in question was properly admissible as a statement made by a patient to a physician with a view toward diagnosis and treatment. The victim made the statement to a physician about one hour after she had been the victim of a sexual assault. That experience clearly jolted her emotional and physical condition. The reference to her ambivalence and fear of reprisal from the "alleged attacker," who was unnamed; cf. Kelly v. Sheehan, 158 Conn. 281, 285-86, 259 A.2d 605 (1969); is reasonably pertinent to the diagnosis and treatment sought by her from the physician to whom she made the statement. Moreover, the defendant does not claim, and our review of the record does not indicate, that any prejudicial effect of the entry outweighed its probative value. See State v. Moynahan, 164 Conn. 560, 597, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219 (1973); State v. Marquez, 160 Conn. 47, 51-52, 273 A.2d 689 (1970). We conclude that this statement was properly admitted by the trial court under General Statutes § 4-104.

Because we have determined that the portion of the hospital record that was objected to was properly admissible under the rules of evidence and therefore under General Statutes § 4-104, we need not reach the defendant's claim that it was inadmissible on the theory of constancy of accusation.

II

The defendant's remaining claim of error is that the court erred in allowing the prosecutor to argue in summation that the jury might draw an unfavorable inference from the defendant's failure to call two witnesses, when the availability of the witnesses was never established. The defendant claims that the state's attorney's comment, upon which the trial court no action, deprived his client of due process of law.

The analysis of this claim requires a review of the defendant's alibi defense: The defendant testified that he was with the victim in her apartment from 3 a. m. to 6 a. m. on July 9, 1978, and that Robert Days and his brother, Stanley Days, were also there. He said that everyone had met there to test and bag cocaine, which he said Robert Days sold and which the victim kept in her apartment. The defendant also testified that he, Robert Days and Stanley Days all left the victim's apartment together at 6 a. m. ⁶ Daniels said that he went home from there and that someone named Barbara Upchurch, who was in bed, "and her kids" were at his home. He said that he then went to bed and slept until about noon and that he did not leave his home for the rest of the day. Neither Barbara Upchurch nor Stanley Days appeared at the trial and testified.

During closing argument the prosecutor reviewed the evidence presented by the state and the defense. ⁷ In doing so, he referred to the defendant's testimony that when he left the victim's apartment both Days were with him. The prosecutor then asked: "Stanley Days is with us, as far as we know, but where is he to substantiate that story?" Continuing, the prosecutor also referred to the defendant's testimony that when he got back to his apartment at about 6 a. m., Barbara Upchurch was there, that he woke her up, that they were in bed together and that he woke up around noon. The prosecutor argued: "I want to know where's Barbara Upchurch to substantiate that he got back to that house at 6:00 o'clock?" Defense counsel moved for a mistrial immediately after the prosecutor's reference to Barbara Upchurch, arguing that the defendant had no burden to produce any witness and that the state was putting that burden on him in violation of his constitutional rights. ⁸ The court denied the motion and the defendant took an exception. No further mention of the matter was made during the trial. The defendant did not request that the argument be stricken from the record or that a curative instruction be given. Nor did the state request a charge on any adverse inference to be drawn from the defendant's failure to call these witnesses.

Connecticut has recognized the right of a party in a civil action to an instruction that the jury may draw an unfavorable...