State v. Kelley

• Decision Date: 18 May 1994
• Docket Number: No. 14560,14560
• Citation: 229 Conn. 557,643 A.2d 854
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Lee Vrne KELLEY.

Page 854

643 A.2d 854

229 Conn. 557

STATE of Connecticut v. Lee Vrne KELLEY.

No. 14560.

Supreme Court of Connecticut.

Argued Nov. 2, 1993.

Decided May 18, 1994 ^*.

Elizabeth M. Inkster, Asst. Public Defender, for appellant (defendant).

James M. Ralls, Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and James G. Clark, Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and SANTANIELLO, JJ.

SANTANIELLO, Associate Justice.

The defendant, Lee Vrne Kelley, was found guilty by a jury of one count of kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A), ¹ one count of first degree sexual assault in violation of General Statutes § 53a-70(a)(1), ² and one count of third degree sexual assault in violation of General Statutes § 53a-72a(a)(2). ³ He was sentenced by the trial court to a term of imprisonment of eighteen years. The defendant has appealed directly to this court pursuant to General Statutes § 51-199(b)(3). ⁴ He claims in his appeal that the trial court improperly: (1) precluded him from questioning the victim regarding a previous false accusation of sexual assault in violation of his right to confrontation; (2) admitted constancy of accusation evidence concerning the sexual assault; (3) admitted the victim's tape-recorded statement as constancy of accusation evidence; (4) defined reasonable doubt in the charge to the jury as "a doubt for which a valid reason can be assigned," thereby diluting the state's burden of proof; and (5) charged the jury on first degree sexual assault in such a way as to allow the jury to convict him on a statutory alternative that was not supported by the evidence. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On August 18, 1990, the victim, a seventeen year old female, lived in New Haven with her mother and siblings. During the morning on that date, the defendant, the victim's uncle, came to the victim's home and asked that she go with him to tell his wife that he had been at the victim's home the previous night. The victim agreed. Consequently, at approximately noon, they left the victim's home to walk to the defendant's apartment. The victim took a shortcut and arrived at the defendant's third floor apartment before he did. When no one answered the door, she went downstairs to the first floor. The defendant appeared behind the victim in the first floor hallway and told her that the keys to his apartment were in the basement. When the victim told the defendant that she did not want to go down into the basement, he pulled her arms behind her and forced her toward the basement door. The defendant was holding a screwdriver in his hand. Although the door was usually locked, the lock had been broken. The victim, afraid and crying, asked the defendant what he was doing and begged him not to take her to the basement. Believing that no one was nearby, the victim did not call out or attempt to attract attention.

Once in the basement, the defendant pushed the victim away from the stairs toward a darkened portion of the basement where he forced her down onto the dirt and rock floor. The defendant pinned the victim down and ordered her to remove her clothes and had intercourse with her. Subsequently, he ordered the victim to get dressed, and threatened to tie her up if she continued crying and screaming. The victim, in order to get away from the defendant, assured him that she would tell no one of the assault. The defendant released her.

When released, however, the victim ran home and informed her mother of what had occurred. Thereafter, in response to a call about an alleged sexual assault, New Haven police officers arrived at the victim's home and found her rolling on the floor in "hysterics" and unable to answer questions. After being taken to the hospital by ambulance, she still could not respond to questions but did indicate that she would like to speak to a psychiatrist. Nonetheless, at the hospital, she was not fully responsive to the psychiatrist, an examining physician or a police detective. Although she answered some questions, she did not provide details of the assault. On the day of the incident, after she was discharged from the hospital, however, the victim did permit the police to record her statement. Approximately two months later, the victim also related the details of her encounter with the defendant to a nurse practitioner.

I

The defendant first argues that the trial court improperly precluded him from questioning the victim about what he contends was a previous false accusation of sexual assault. He asserts that the purpose of cross-examining the victim regarding a previous complaint that did not result in a prosecution was "to show that [the victim] has no hesitancy in making complaints of sexual assault...." The defendant claims that the court's ruling deprived the jury of information necessary for it to determine the victim's credibility and improperly curtailed his cross-examination of the victim. ⁵ We disagree.

"The sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution to confront the witnesses against him.... The primary interest served by confrontation is the right to cross-examination ... and an important function of cross-examination is the exposure of a witness' motivation in testifying.... Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted." (Citations omitted; internal quotation marks omitted.) State v. Colton, 227 Conn. 231, 248-49, 630 A.2d 577 (1993).

"The confrontation clause does not, however, suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination." State v. Johnson, 21 Conn.App. 291, 293, 573 A.2d 1218 (1990). Only relevant evidence may be elicited through cross-examination. State v. Gaynor, 182 Conn. 501, 509, 438 A.2d 749 (1980). The court determines whether the evidence sought on cross-examination is relevant by determining whether that evidence "renders the existence of [other facts] either certain or more probable." (Internal quotation marks omitted.) State v. Kelly, 208 Conn. 365, 376, 545 A.2d 1048 (1988).

In Kelly, we held that the fact that a man whom the victim had previously accused of sexual assault had been acquitted had no probative value in a subsequent sexual assault case against a different defendant. Id. We stated that the acquittal did "not make the charge of sexual assault against [the earlier defendant] or the charge against the defendant a 'recent contrivance,' 'imagination,' or 'sexual fantasy....' " Id., at 377, 545 A.2d 1048.

On the other hand, in State v. Ouellette, 190 Conn. 84, 459 A.2d 1005 (1983), the victim was an eight year old child. In her statement to the police, the victim stated that she had been sexually assaulted by the defendant and the defendant's brother-in-law. Id., 87-88. The victim had not, however, previously mentioned being assaulted by the defendant's brother-in-law to anyone other than the police. Id., at 103, 459 A.2d 1005. We concluded that the trial court's denial of the right to cross-examine the victim concerning this discrepancy was harmful error. Id., at 103-104, 459 A.2d 1005.

In the present case, the defendant presented no evidence to the trial court concerning the alleged prior false accusation of sexual assault. In his offer of proof, the defendant claimed to know the name of the previously accused individual, but he did not know exactly when the accusation had been made, why the accusation had not resulted in a prosecution, or even whether the previous accusation was false. The court therefore refused the defendant permission to question the victim regarding the truth or falsity of the prior accusation because his offer of proof was insufficient and because the proposed line of inquiry was not relevant.

Unlike the situation in State v. Ouellette, supra, 190 Conn. 84, 459 A.2d 1005, the victim here had not mentioned a previous assault in her statements about the incident. Without evidence of the falsity of the prior accusation, therefore, the defendant cannot show the relevance of the proposed cross-examination. As in State v. Kelly, supra, 208 Conn. at 377, the victim's " 'conduct with another man [has] no bearing on her conduct with this defendant or on the credibility of her testimony in this case.' "

"The court has wide discretion to determine the scope of cross-examination.... Every reasonable presumption should be given in favor of the correctness of the court's ruling in determining whether there has been an abuse of discretion." (Citations omitted; internal quotation marks omitted.) State v. Hernandez, 224 Conn. 196, 208, 618 A.2d 494 (1992). The trial court did not abuse its discretion in disallowing the proposed cross-examination.

II

The defendant next claims that the trial court improperly admitted constancy of accusation evidence. In addition to the testimony of the victim, the jury heard the victim's story from the victim's sister, the psychiatrist who treated the victim at the hospital, the admitting physician, a nurse practitioner and a police detective.

The defendant claims that the constancy of accusation doctrine is "outmoded, anachronistic and gender-biased" and violates his rights under article first, § 20, of the Connecticut constitution. ⁶ He also claims that the constancy of accusation testimony violated his right to confrontation under the sixth amendment to the United States constitution in that it does not fall within a recognized hearsay exception. We disagree.

At trial, the defendant claimed only that the constancy of accusation evidence violated his rights under the confrontation clause. He now seeks to prevail on the remainder of his claims under State v. Golding, 213 Conn....