State v. Martin

• Decision Date: 15 August 1995
• Docket Number: No. 12797,12797
• Citation: 663 A.2d 1078,38 Conn.App. 731
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Thomas MARTIN, Jr.

Page 1078

663 A.2d 1078

38 Conn.App. 731

STATE of Connecticut v. Thomas MARTIN, Jr.

No. 12797.

Appellate Court of Connecticut.

Argued April 19, 1995.

Decided Aug. 15, 1995.

Suzanne McAlpine, with whom, on the brief, was Hugh F. Keefe, New Haven, for appellant (defendant).

Frederick W. Fawcett, Assistant State's Attorney, with whom, on the brief, were Donald A. Browne, State's Attorney, and Stephen J. Sedensky III, Assistant State's Attorney, for appellee (State).

Before DUPONT, C.J., and LAVERY and FRANCIS X. HENNESSY, JJ.

LAVERY, Judge.

The defendant appeals from a judgment of conviction, after a trial to the court, of sexual assault in the second degree in violation of § 53a-71(a)(4). ¹ The defendant was sentenced to a term of ten years. On appeal, the defendant claims that (1) the trial court improperly allowed the state to offer constancy of accusation testimony, (2) the trial court improperly allowed admission of the victim's redacted clinic and hospital records under the hearsay exceptions for business records and statements made in securing medical treatment, (3) the trial court improperly allowed the victim's mother to testify as to the victim's mental state and school record under a nonassertive conduct exception to the hearsay rule, and (4) there was insufficient evidence to convict the defendant of any offense beyond a reasonable doubt.

The jury could reasonably have found the following facts. At the time of the incident, the victim was living with her father and stepmother on her father's houseboat. She had been living with them for three years. On the date of the assault in this case, the victim's step-mother was in Vermont where she was about to have a baby. The victim had previously lived with her mother and stepfather in Florida. The victim had just completed her sophomore year in high school and was working for the summer.

On July 30, 1990, the defendant picked up the victim from her job, took her to dinner and returned to the boat with her. Upon returning to the boat, the victim helped the defendant fix the air conditioning. When the repairs were finished, the defendant went out and the victim watched television until approximately 10 p.m. and then went to sleep.

At approximately midnight, the defendant returned, came to the victim's room and asked her to help do more work on the air conditioning. The victim helped the defendant for approximately one hour. The defendant, who had been drinking, was unsteady on his feet and slurred his words. After helping her father, the victim returned to bed. The defendant entered her room and looked under her bed covers; he said she was not ready for bed because she was wearing shorts. He told her to come talk to him when she was ready for bed. He wanted to discuss whether she was to go on a date the following night.

When the victim went to her father's bedroom, as he had requested, he started talking to her about sex. After he told her to lay down on the bed, he talked to her about masturbation and inquired as to whether she knew the difference between a hard and soft penis. At this point, the defendant grabbed the victim's hand and placed it on his penis, instructing her to rub it. The victim told her father that she was uncomfortable with this conduct and went to her room.

Shortly thereafter, the defendant called the victim to the kitchen. He told her that he had been wrong and should not have talked to her that way. After going to his room, the defendant returned to the kitchen with a gun, which he pointed at the victim's head. He told her that if she told anyone, he would shoot her, and he ordered her to go his bedroom.

Once they were in the defendant's bedroom, he told the victim to take off her clothes. She followed his instruction, but asked if she could keep her underwear on, the defendant said she could. He made the victim lie down on top of him on the bed and he moved his pelvic area up and down several times. The victim stood up. The defendant told the victim that she had the choice of performing fellatio or having sexual intercourse. The victim told her father that she did not want to do either, but the defendant told her that if she was not quiet that she would be in big trouble. The victim performed fellatio and then went to her bedroom. The victim heard her father yelling that he had ruined her life and how could he have done this to her.

On July 31, the victim's father gave her a ride to work. From there, the victim called her friend, Melissa Mancini, but Mancini was asleep. The victim called again later and spoke with Mancini. She told her friend that her father had forced her to perform fellatio. Mancini's mother, Giselle Doszpoj, got on the phone and asked the victim what had happened. The victim told Doszpoj what had occurred and Doszpoj, who was a Bridgeport police officer, called the department of children and youth services (DCYS).

The victim spoke with Susie Laffitte at DCYS who told her to call the police. Doszpoj picked up the victim at work and brought her to Doszpoj's house where the victim gave the police a statement. Doszpoj called the victim's mother, Sharon Giersdorf, and told her what had happened. Giersdorf spoke briefly to the victim and then traveled to Connecticut from Florida the next day. Giersdorf and the victim returned to Florida where the victim has since resided.

I

First, the defendant claims that the constancy of accusation testimony offered by the state is highly prejudicial and requires that the case be reversed. This testimony consisted of statements made by the victim to Mancini and Doszpoj on the morning of the sexual assault. The state introduced a statement given by the victim to Bridgeport police detective A.M. Osika on the afternoon of August 1. The state also introduced redacted records of Savannas Hospital in Florida where the victim had voluntarily admitted herself because she was depressed. In addition, the state introduced redacted records of Psychiatric and Psychological Associates which consisted of statements the victim made to a treating physician concerning the sexual assault. The defendant claims that the assault never occurred and the only reason the victim accused him was because she no longer wanted to live with him and wanted to return to Florida. In addition to the victim's testimony concerning the assault and the constancy testimony, the state introduced testimony that refuted the defense theory that the victim's only purpose in making this accusation was to return to Florida.

A

In June, 1994, our Supreme Court reaffirmed the admissibility of constancy of accusation testimony. State v. Kelley, 229 Conn. 557, 563-67, 643 A.2d 854 (1994). The genesis of this rule dates to 1830 when the court held: "If a female testifies, that such an outrage has been committed on her person, an enquiry is, at once, suggested, why it was not communicated to her female friends. To satisfy such inquiry, it is reasonable that she should be heard in her declarations, that she did so communicate it, and that testimony should be received to confirm her story." State v. DeWolf, 8 Conn. 93, 100 (1830). Since this case, the Supreme Court has consistently approved the admission of such evidence. See State v. Kinney, 44 Conn. 153, 156-57 (1876); see also State v. Parris, 219 Conn. 283, 289-90, 592 A.2d 943 (1991). In order for such testimony to be admissible, the complainant must first testify to the facts alleged and then state that she made this complaint to some other person. That person can then testify not only to the fact that a complaint was made, but also to the details. State v. Segerberg, 131 Conn. 546, 548-49, 41 A.2d 101 (1945).

The reason for the admission of such testimony is that it would be natural for the victim of a sexual assault to relate the incident to others. The recitation of the details would be likely to be constant if the claim was true and discrepancies would be more likely if the incident did not happen. State v. Kelley, supra, 229 Conn. at 565-66, 643 A.2d 854. Here, this testimony was used only to corroborate the victim's testimony. State v. Hamer, 188 Conn. 562, 565, 452 A.2d 313 (1982). The defendant has failed to demonstrate any compelling reason to curtail the use of this doctrine. State v. Parris, supra, 219 Conn. at 292, 592 A.2d 943. It is also important to note that not only does this testimony provide additional information on which to cross-examine the victim, but the defendant can cross-examine the accusation witnesses as well. State v. Dabkowski, 199 Conn. 193, 202, 506 A.2d 118 (1986); State v. Brigandi, 186 Conn. 521, 533, 442 A.2d 927 (1982).

B

The defendant claims that the constancy of accusation testimony violated his right of confrontation. The defendant's argument is based entirely on the United States Supreme Court decision in Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). The issue in Wright was the admission of hearsay statements of a child who the trial court ruled was not capable of communicating to the jury. The prosecution relied on Idaho's residual hearsay exception; the court then determined that under such an exception the trustworthiness of the statement must be established, which the prosecution could not do. Id., at 817-27, 110 S.Ct. at 3147-52. The court pointed out, however, that the indicia of reliability requirement is met when the hearsay statement "falls within a firmly rooted hearsay exception." Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980). If the statement meets this exception then it is allowed into evidence as it also then meets the requirements of the confrontation clause. Idaho v. Wright, supra, at 814, 110 S.Ct. at 3145; Ohio v. Roberts, supra, at 65, 100 S.Ct. at 2538.

As stated in section A, this exception to the hearsay rule has existed since 1830; State v. De Wolf, supra, 8 Conn. 93; and has "consistently been approved by this court." State v....