State v. Kulmac

Decision Date05 July 1994
Docket Number14793,Nos. 14792,s. 14792
Citation230 Conn. 43,644 A.2d 887
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Steven B. KULMAC.

Temmy Ann Pieszak, Asst. Public Defender, for appellant (defendant).

Leon F. Dalbec, Jr., Asst. State's Atty., with whom, on the brief, were James E. Thomas, State's Atty., and John M. Massameno, Senior Asst. State's Atty., for appellee (State).

Before PETERS, C.J., and BORDEN, BERDON, NORCOTT and KATZ, JJ.

BORDEN, Associate Justice.

The defendant, Steven B. Kulmac, was charged in two separate informations that were consolidated for trial to a jury, and remain consolidated for this appeal. The defendant was convicted of committing numerous sexual offenses 1 against two minors C and K. 2 In total, the defendant was convicted of eight counts of sexual assault in the first degree in violation of General Statutes § 53a-70(a), 3 eight counts of sexual assault in the second degree in violation of General Statutes § 53a-71(a)(1), 4 two counts of sexual assault in the fourth degree in violation of General Statutes § 53a-73a(a)(1)(A), 5 and nine counts of risk of injury to a child in violation of General Statutes § 53-21. 6 The defendant appealed from the judgments of conviction. 7

The defendant claims that the trial court improperly: (1) disregarded the defendant's right to confrontation by excluding evidence of sexual abuse of the victims by men other than the defendant; (2) refused to conduct an in camera inspection of the victims' department of children and youth services (DCYS) records; (3) admitted testimony of the defendant's prior misconduct; (4) instructed the jury on the definition of risk of injury to a child; (5) disregarded due process by considering unreliable evidence at sentencing; (6) disregarded the defendant's right against double jeopardy by charging the defendant in separate counts with acts arising out of the same offense, and convicting the defendant for sexual assault in the first and second degree for the same acts; (7) convicted the defendant of one count each of sexual assault in the first degree and second degree despite insufficient evidence; (8) convicted the defendant of one count of risk of injury despite insufficient evidence; (9) convicted the defendant of two counts of sexual assault in the first degree despite insufficient evidence and an improper jury instruction on consent; and (10) failed to enforce the applicable statute of limitations, and tried time-barred charges in the same proceeding as charges that were not time-barred. We affirm the judgments of the trial court.

The jury could reasonably have found the following facts. The victims, C and K, were sisters who were born in June, 1975, and August, 1976, respectively. At the time of trial, C was fifteen years old and K was fourteen years old. Between April, 1985, and June, 1986, they lived with their mother, father and younger brother in Meriden. With their family, they then moved to another home in Meriden, and in December, 1986, they moved to Southington. The defendant was a friend of the victims' father, and the victims referred to him as "Uncle Steve."

Pursuant to an order of the juvenile session of the Superior Court, Bruce Freedman, a family psychologist, evaluated K and C in May and June, 1988, when they were nearly twelve and thirteen years old, respectively. According to Freedman, both children were below average in intelligence. K's intelligence quotient was 61, which placed her in the mildly retarded range. People in that range are very slow to learn and tend to confuse time sequences, but they are able to perceive events. C's intelligent quotient was 84, making her a little below average or a slow learner, but still enabling her to be placed in a regular classroom.

The defendant subjected the victims to a series of sexual abuses, commencing with K when she was nine years old and with C when she was eleven years old. The incidents typically occurred while the defendant was home alone with one of the victims. The defendant typically fondled the victim's breasts and vaginal area, with her clothes either on or off, and then proceeded to acts of intercourse, including vaginal penetration by the defendant's fingers or penis. Both victims resisted these acts. Each victim knew that the other was being similarly treated by the defendant, and both were too frightened of the defendant to tell anyone. Nonetheless, at some point, both victims informed their mother, and K informed her school counselor about the assaults. The abuses spanned a period of approximately two years.

I

The defendant first claims that the trial court violated his right to confront witnesses against him by excluding evidence that other men had sexually abused the victims. This claim rests on two distinct arguments. First, the defendant argues that the rape shield statute, General Statutes § 54-86f, 8 does not apply to the charges of risk of injury to a child under § 53-21. Second, the defendant argues that the evidence is admissible under the constitutional exception to the rape shield statute, § 53a-86f(4). The defendant contends that this error requires a new trial on all charges. We disagree with both parts of the defendant's claim.

The following facts are relevant to this issue. During the defendant's cross-examination of K, outside the presence of the jury, the defendant argued that he should be permitted to examine K regarding sexual assaults perpetrated against her by her father and two other men. The defendant argued that this evidence was relevant to demonstrate that K had mistakenly attributed assaults allegedly committed on her by other people to the defendant. The trial court ruled that the proposed evidence was barred by the rape shield statute. In reaching this decision, the trial court found that K exhibited no confusion in identifying the defendant as the person who had committed the charged offenses.

The defendant raised similar arguments with respect to C. Relying on C's written statement that she had been sexually abused by her father and two other men, the defendant argued that C had mistakenly attributed those other assaults to the defendant. The trial court reviewed C's statement and noted that the allegations of sexual abuse regarding C's father had occurred in the spring of 1987, and that the allegations of sexual abuse by the other two men occurred in the summer and fall of 1987. The conduct by the defendant, however, began in 1985 and continued until 1987. The trial court found that C did not appear confused, and that it was unlikely that C had confused the other sexual abuses, committed in 1987, with the abuses committed by the defendant beginning in 1985. Therefore the trial court ruled that the rape shield statute barred cross-examination on the abuses by the other men reported in her written statement. The trial court did, however, permit the defendant to cross-examine C regarding sexual contact by a party not included in her written statement, because that alleged contact had occurred at the same time as the contact by the defendant.

The defendant first argues that the rape shield statute, § 54-86f, does not apply to accusations of risk of injury under § 53-21. The defendant raised this argument at trial, and the trial court ruled that because offenses listed in the rape shield statute were included in the same prosecution as the risk of injury charges, the rape shield statute governed the admissibility of the evidence.

Section 54-86f provides that "[i]n any prosecution for sexual assault under sections 53a-70, 53a-70a, and 53a-71 to 53a-73a, inclusive, no evidence of the sexual conduct of the victim may be admissible...." The defendant is correct that § 53-21 is not included in the list of offenses to which § 54-86f states it applies. That observation, however, does not end our inquiry.

The rules pertaining to the admissibility of evidence in Connecticut are subject to the exercise of both judicial and legislative authority. State v. James, 211 Conn. 555, 560, 560 A.2d 426 (1989); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.1993 Sup.) § 1.1.2. "Plainly, every statute has some boundaries, and the question then arises whether, and when, it is appropriate to apply the statute, as a matter of common law, beyond its designated boundaries." E. Peters, "Common Law Judging in a Statutory World: An Address," 43 U.Pitt.L.Rev. 995, 1005 (1982). In other contexts, "we have previously used statutes as a useful source of policy for common law adjudication, particularly if there was a close relationship between the statutory and common law subject matters." Fahy v. Fahy, 227 Conn. 505, 514, 630 A.2d 1328 (1993); accord New England Savings Bank v. Lopez, 227 Conn. 270, 281, 630 A.2d 1010 (1993); Canton Motorcar Works, Inc. v. DiMartino, 6 Conn.App. 447, 453, 505 A.2d 1255, cert. denied, 200 Conn. 802, 509 A.2d 516 (1986). We consider this adjudicative technique to be appropriate in this case.

"General Statutes § 54-86f greatly restricts the admissibility of evidence of the prior sexual conduct of a sexual assault victim." State v. Williams, 20 Conn.App. 263, 268, 565 A.2d 1365 (1989). The policies behind the rape shield statute are well established. See, e.g., H. Galvin, "Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade," 70 Minn.L.Rev. 763 (1986); V. Berger, "Man's Trial, Woman's Tribulation: Rape Cases in the Courtroom," 77 Colum.L.Rev. 1 (1977). The statute is intended to protect victims' personal privacy, to shield them from unnecessary harassment and embarrassment in court, and to encourage them to disclose sexual assault by reducing some of the deterrents to reporting. State v. Christiano, 228 Conn. 456, 469-70, 637 A.2d 382 (1994); State v. Rinaldi, 220 Conn. 345, 356, 599 A.2d 1 (1991); State v. Cassidy, 3 Conn.App. 374, 379, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1...

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2 books & journal articles
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