State v. Gelinas

• Decision Date: 26 January 1971
• Citation: 279 A.2d 552,160 Conn. 366
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Walter J. GELINAS.

Page 552

279 A.2d 552

160 Conn. 366

STATE of Connecticut v. Walter J. GELINAS.

Supreme Court of Connecticut.

Jan. 26, 1971.

William L. Tobin, Waterbury, with whom was Pasquale Palumbo, Waterbury, for appellant (defendant).

Thomas F. Wall, State's Atty., for appellee (state).

Before ALCORN, C.J., and HOUSE, THIM, RYAN and SHAPIRO, JJ.

HOUSE, Associate Justice.

The defendant has appealed from his conviction on two counts each of indecent assault; General Statutes § 53-217; and risk of injury to a minor child. General Statutes § 53-21. The offenses concerned his relations with two young girls, sisters, living in the house where the defendant resided. We find that our decision on one of the defendant's several assignments of error is dispositive of this appeal.

The only direct evidence of the incidents giving rise to the charges against the defendant was that of the two girls. Each of them testified to separate incidents involving the conduct of the defendant with her alone, and, in accord with the 'constancy of accusation' exception to the hearsay rule, the complaint of each was corroborated by the testimony of witnesses to whom each had related the circumstances of the defendant's conduct with her. See State v. Purvis, 157 Conn. 198, 207, 251 A.2d 178, cert. denied, 395 U.S. 928, 89 S.Ct. 1788, 23 L.Ed.2d 246, and cases cited therein. In these circumstances the veracity of the girls became a crucial question for determination by the jury.

In the course of his defense the defendant called as a witness Mrs. Jeannine Rousseau, who testified that she was on close terms with the girls and had had frequent opportunities to observe them and their habits. She was then asked: 'With reference to Claudette did you ever have occasion to observe her capacity for telling the truth or telling lies?' The court thereupon sustained an objection by the state to which the defendant duly excepted. The defendant has assigned this ruling as error.

From the colloquy between the court and defense counsel it is apparent that both were laboring under the misapprehension that in such circumstances, in Connecticut, the veracity of the witness could be attacked by evidence of the witness's general reputation in the community for veracity but not by testimony from a witness testifying from personal knowledge as to that veracity. ¹

The mutual error of the defense counsel and the court undoubtedly stemmed from their recollection of the general common-law rule which limited the testimony of character witnesses to the subject's general reputation in the community for the particular trait in issue. See 29 Am.Jur.2d, Evidence, § 345; McCormick, Evidence § 158, p. 334 n. 9. But, 'Connecticut, in Richmond v. City of Norwich, 96 Conn. 582, 593, 115 A. 11, adopted the better, although probably still the minority, rule that character may also be proved by the opinion evidence of those who have been shown to have had an opportunity to form, and who have formed, an opinion as to the character of the * * * (individual) with respect to the trait or traits in issue. This rule is approved in 29 Am.Jur.2d, Evidence, § 345; 7 Wigmore, * * * (Evidence (3d Ed.)) §§ 1980, 1981; McCormick, * * * (Evidence) § 158, p. 334 n. 9. The whole question was elaborately discussed in the Richmond case and its holding is equally applicable whether the character is to be proved in a civil or a criminal case.' State v. Blake, 157 Conn. 99, 104, 249 A.2d 232, 235; see also 7 Wigmore, op. cit. §§ 1982, 1986. As the court observed in the Richmond case, 96 Conn. 582, 594, 115 A. 11, 16, 'No one knows so well about this * * * (characteristic) as he who has known the person and had the opportunity to determine it. How much more convincing is such evidence than that of a witness who testifies to the general repute of this person as to this mental characteristic. His testimony is based upon hearsay, and quite likely rumor and gossip. If mental characteristic...