State v. James, 13483

• Decision Date: 20 June 1989
• Docket Number: No. 13483,13483
• Citation: 560 A.2d 426,211 Conn. 555
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Robert JAMES.

Page 426

560 A.2d 426

211 Conn. 555

STATE of Connecticut v. Robert JAMES.

No. 13483.

Supreme Court of Connecticut.

Argued Feb. 28, 1989.

Decided June 20, 1989.

Kent Drager, Asst. Public Defender, for appellant (defendant).

Mitchell S. Brody, Deputy Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., Timothy Pothin, former Deputy Asst. State's Atty., and Maria Kahn, Legal Intern, for appellee (state).

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS and COVELLO, JJ.

SHEA, Associate Justice.

The principal issue in this appeal is whether the provision of General Statutes § 54-86h declaring that "any child who is a victim of assault, sexual assault or abuse shall be competent to testify without prior qualification" is constitutional. We conclude that it is valid. We also find no reversible error in the plethora of other issues the defendant has raised.

After a jury trial, the defendant was convicted of attempted sexual assault in the second degree in violation of General Statutes §§ 53a-49(a)(2) and 53a-71(a)(1); sexual assault in the fourth degree in violation of General Statutes § 53a-73a(a)(1)(A); and risk of injury to a child under the age of sixteen years in violation of General Statutes § 53-21. In his appeal from the judgment the defendant claims that the court erred in: (1) allowing the complainant child to testify without first determining her competency as a witness in reliance upon the provision of § 54-86h declaring a child victim "competent to testify without prior qualification"; (2) failing to instruct the jury in accordance with a request to charge concerning special considerations relating to the credibility of a child witness; (3) prohibiting impeachment of the complainant's mother concerning a prior act of claimed welfare fraud and excluding evidence purporting to show her bias against the defendant; (4) excluding various evidence offered by the defendant and admitting evidence of prior uncharged sexual misconduct with the complainant; (5) instructing the jury upon (a) circumstantial evidence, (b) alternative forms of risk of injury, and (c) the necessary elements of an attempt; (6) submitting to the jury the first two counts of the information, claimed to be lesser included offenses of the third count, in violation of the principle of double jeopardy; and (7) summarizing the evidence in a fashion overly favorable to the state. The defendant also claims a new trial on the ground of improper argument by the prosecutor.

From the evidence at trial the jury could reasonably have found the following facts. The complainant, L, who was twelve years old at the time of trial, lived with her mother, sister and brother in an apartment on the second floor of a building in New Haven. Her family shared the apartment with the defendant, whose aunt owned the building and occupied the first floor. The defendant occupied a back room but had use of the bathroom, kitchen and living room. On January 6, 1987, L and her family were visiting a neighbor who lived on the same street when, at about 10 p.m., her mother sent L home to get some bread and meat.

After L had entered the apartment, she encountered the defendant, who had been cooking some bacon in the kitchen. The defendant walked over to L, picked her up and laid her on the couch. He felt her breasts through her clothes. He pulled down her pants and also unzipped his own pants. L observed his erect penis. He told her not to tell her mother. At that point, there was a knock on the door, which L went to answer. Her sister, Y, was at the door. Y testified that L's pants were unzipped and halfway down and that the defendant's pants also were halfway down and she could see his penis. Y left the apartment to get her mother, M, who was downstairs on the street. Y told her mother what she had observed and they both returned to the apartment where L had remained.

M asked L what the defendant had done. L replied that he had tried to touch her. M called the defendant to come out of his room and he did so. She asked him whether he had tried to touch her daughter. When the defendant responded, "yeah, yeah, yeah," M struck him on the face and he fell to the floor. The police were called and the defendant was arrested.

I

The defendant attacks on three grounds the constitutionality of the provision of § 54-86h ¹ that allows a child sexual assault victim to testify without a preliminary finding of competency, as our practice had previously prescribed: (1) the statute violates article second ² of our state constitution, which confines the exercise of judicial power to the courts as a "separate magistracy"; (2) it violates the defendant's right of confrontation; and (3) it violates his right to equal protection of the laws. The trial court, in reliance upon § 54-86h, denied the defendant's motion for a competency examination of the complainant, L, before she would be allowed to testify before the jury. A similar motion, however, was granted with respect to another child witness, Y, L's sister, who was also twelve years old at that time, because § 54-86h applies only to child victims.

A

In State v. Clemente, 166 Conn. 501, 516, 353 A.2d 723 (1974), this court held that General Statutes § 54-86b, our state counterpart to the federal Jencks Act, 71 Stat. 595, 18 U.S.C. § 3500, violated article second of our state constitution because it infringed upon the inherent power of the courts to control discovery. Relying upon this precedent, the defendant contends that § 54-86h should also be declared unconstitutional because it trespasses upon the traditional authority of courts to determine the competency of a child witness before the child's testimony may be presented. "[T]his court has also held in reviewing acts of the legislature that the legislature has not the competency to impair the essential nature or jurisdiction of any of the constitutional courts." State v. Clemente, supra, at 514, 353 A.2d 723; see Walkinshaw v. O'Brien, 130 Conn. 122, 142, 32 A.2d 547 (1943).

Unlike the practices and principles relating to discovery, which were deemed in Clemente to be within the exclusive power of the courts, the rules of evidence, including those relating to the competency of witnesses, have never in this state been regarded as exclusively within the judicial domain. Over a period of many years, the legislature has enacted various statutes modifying the rules of evidence prevailing at common law, including several rules pertaining to the competency of witnesses. These changes have been accepted by our courts and have never been challenged as violating the principle of separation of powers. R. Kay, "The Rule-Making Authority and Separation of Powers in Connecticut," 8 Conn.L.Rev. 1, 26-27 n. 132 (1975); see General Statutes §§ 52-145 through 52-184c. In 1848 the common law disability of parties to testify as witnesses was removed by a statute now incorporated in General Statutes § 52-145(a). Session Laws of 1848, c. 80, p. 70; see Bowen v. Bowen, 20 Conn. 127, 132 (1849); Eld v. Gorham, 20 Conn. 8, 12 (1849). In the same year, the common law disqualification of witnesses for conviction of certain crimes was also changed, so that such a conviction could be used only for the purpose of evaluating the credibility of a witness, as General Statutes § 52-145(b) presently provides. Session Laws of 1848, title 1, § 141; see Hall v. Brown, 30 Conn. 551, 557 (1862). The view of the early common law that a spouse could not testify in support of a party-spouse has also been the subject of statutory reform. General Statutes § 54-84a; see C. McCormick, Evidence (3d Ed.) § 66; Merriam v. Hartford & New Haven R. Co., 20 Conn. 354, 363 (1850); Stanton v. Wilson, 3 Day (Conn.) 37, 55 (1808). The legislature has modified the ancient view that a person "who did not believe in a supreme being and a future state could not be a competent witness" by enacting statutes that permit witnesses to affirm under the penalties of perjury or false statement and that also allow the court to use any other suitable ceremony instead of the prescribed oath for witnesses. State v. Dudicoff, 109 Conn. 711, 716-17, 145 A. 655 (1929); see General Statutes §§ 1-22, 1-23, 52-145; Atwood v. Welton, 7 Conn. 66, 73 (1828).

These statutory revisions of antiquated conceptions relating to the competency of a witness have never been regarded as exceeding the legislative prerogative. Our acceptance of them as well as other legislative changes in the rules of evidence since the adoption of our state constitution in 1818 plainly distinguishes such statutes from those pertaining to court "administration, practice or procedure," which we have held not to be binding on the constitutional courts, while acknowledging our frequent practice of either express or implicit "acquiescence" therein. Adams v. Rubinow, 157 Conn. 150, 156, 251 A.2d 49 (1968).

This court has held unconstitutional statutes modifying the rules of evidence in such manner as to defy logic, such as those creating presumptions, whether rebuttable; Mott's Super Markets, Inc. v. Frassinelli, 148 Conn. 481, 489-91, 172 A.2d 381 (1961); or irrebuttable. Ducharme v. Putnam, 161 Conn. 135, 141, 285 A.2d 318 (1971). In these cases, however, we have not relied upon any grant of exclusive authority to the courts under article second to promulgate rules of evidence but upon other constitutional principles, such as due process and equal protection. "Constitutionally, the legislature can no more bind the courts to such a factually unsupportable conclusive adjudication than it can require their adjudication that a camel is a horse by the enactment of a statutory conclusive presumption that all four-footed animals are horses." Ducharme v. Putnam, supra, at 140, 285 A.2d 318.

We are aware that the Supreme Courts of the states of Mississippi, Arizona and Washington, under state constitutional provisions similar to article second, have...