State v. Ouellette

• Decision Date: 10 May 1983
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Leo Joseph OUELLETTE.

Page 1005

459 A.2d 1005

190 Conn. 84

STATE of Connecticut v. Leo Joseph OUELLETTE.

Supreme Court of Connecticut.

Argued Jan. 11, 1983.

Decided May 10, 1983.

Robert A. Teitenberg, West Hartford, for appellant (defendant).

Katherine J. Lambert, Deputy Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., Warren Maxwell, Asst. State's Atty., and Maureen T. Platt, Sp. Deputy Asst. State's Atty., for appellee (state).

Before SPEZIALE, C.J., and PETERS, ARTHUR H. HEALEY, PARSKEY and GRILLO, JJ. ARTHUR H. HEALEY, Associate Justice.

After a trial to the jury, the defendant was found guilty of one count ¹ of risk of injury to a child in violation of General Statutes § 53-21. ² On appeal, the defendant claims that the trial court erred: (1) in admitting evidence of alleged prior uncharged sexual acts of the child victim with the defendant and, if admissible, in not charging the jury of the limited purpose for which such evidence could be used; (2) in admitting hearsay statements for purposes of constancy of accusation and, if admissible, in not charging the jury of the limited purpose for which such evidence could be used; and (3) in refusing to allow the defendant to cross-examine the child victim, for the purpose of attacking her credibility, concerning whether she had made allegations of similar sexual misconduct against others.

For the purposes of our analysis, it is unnecessary to go into the sordid details of this case. It suffices to point out that the evidence presented showed that, on June 29, 1979, the defendant performed certain sexual acts upon the victim, as well as having the victim perform acts upon him. At the time of this incident, the victim was eight years old. Also at that time, the defendant was the live-in boyfriend of the victim's mother. It is evident from our examination of the record and the transcript that credibility was crucial in this case.

The defendant challenges, inter alia, the admission and use of the victim's statements during the trial that the same thing had happened "[a]bout ten [times]," first starting when she was six years old. ³ The defendant is also challenging the testimony of the victim's mother who stated that the day after the incident in question, her daughter told her that this had happened more than once, starting when the defendant lived with them in Cromwell, which was about one and a half to two years before June 29, 1979. In addition, the defendant is challenging the testimony of police officer Henry Orzel who interviewed the victim the day after the incident, who testified that the victim had "related that [the assaults] occurred ... off and on since she was six years old." Finally, the defendant is challenging the admittance of a hospital report of the victim that contained, inter alia, notes of the emergency room interviews which recorded the mother's statement that the victim was repeatedly molested by the defendant. ⁴

For the purpose of complementing the situation from which the defendant's claims arise, we must refer to certain rulings by the trial court. Prior to the offering of any evidence, the state told the court that the victim's signed statement to the police included her claim that the defendant's brother-in-law had committed similar acts upon her on several occasions in the past. It was pointed out that the defendant wanted to cross-examine on this matter although the state said that it did not plan to go into the victim's sexual activity on direct examination other than that with the defendant. The defendant claimed that such an examination of the victim here would go to her credibility in her accusation of the defendant, maintaining that the police report did name the brother-in-law as also having done similar acts. The state told the court that the brother-in-law had disappeared "[a]ccording to the [victim's] mother." The court ruled that the defendant could not cross-examine the victim in that regard as the court did not "think it makes any difference that someone else has also been accused of the same act" and that it was "irrelevant." ⁵

Immediately thereafter, the state said that there were further statements by the victim that the "defendant had engaged in similar type activity, sexual activity, with her on several occasions previous to this going back ... to the time when she was about six years old." It claimed their admissibility under State v. Greene, 161 Conn. 291, 287 A.2d 386 (1971), which was "a blanket-type of a rule by the Supreme Court." The defendant objected, maintaining that the admission of such evidence was discretionary, and that the court should balance the prejudice caused by such evidence with the fairness of doing so. The court, after examining Greene and the authorities cited there, was genuinely concerned about Greene which it read as "a form of extension of the constancy of accusation exception" in which that case "extended this particular constancy of accusation exception to the hearsay rule to this particular type of situation." The court, on the basis of Greene and the authorities cited therein, overruled the defendant's objections. The defendant took an exception.

After the state had started to put on its case and before the victim testified, the defendant renewed his claim on the admissibility of the prior acts that allegedly took place between the victim and the defendant. He argued that the prejudicial value in their admission far outweighed their probative value, that such acts did not go to add to constancy of accusation and that constancy of accusation concerned only the crime charged. The court again ruled against the defendant saying that such evidence was allowed in the Greene case. ⁶ It also stated that "I'll limit them just to the fact that they go to the weight and not to the--the weight to be given to credibility and not to whether or not they actually occurred. They will be limited to that purpose." On direct examination the victim testified concerning the alleged prior acts with the defendant without any comment by the court to the jury involving their limitation. On direct examination the victim's mother testified that the victim told her of the prior acts of the defendant as did officer Orzel. There was no comment by the court to the jury, as they testified, as to any limitation on the use of such testimony.

Just prior to the state's resting its case, the defendant argued that the jury should have been cautioned, at the time the evidence came in, of the limitation of the use of evidence of prior acts. It was the court's recollection, as well as that of the state, that it had not said it would so admonish the jury and it did not do so. ⁷ The court at that time also said it would charge the jury on the constancy of accusation exception pointing out "that's when they get the limited purpose of the accusations, but not as an admonishment to them during the course of the trial, not to prove the truth of all of the other incidents, only to prove the truth of this particular incident.... They will get it in their charge. That's when I will give it to them." ⁸

We turn to the defendant's first two claims which are interrelated as the evidentiary rulings admitting the evidence complained of implicate the issue of constancy of accusation. In the first instance, the defendant asserts error in the admission of evidence of uncharged similar prior sexual acts upon the victim by the defendant through the victim, her mother, officer Orzel and the hospital record. He then claims that even if such evidence were admissible, the court erred in not instructing the jury on the limited purpose for which it could be considered by them in passing upon his guilt or innocence of those crimes for which he was in fact charged and tried. We find error.

It is apparent from the transcript of the trial, the briefs and the arguments before us that the evidentiary rulings on this branch of the case involved our opinion in State v. Greene, supra. In that case the defendant was charged with crimes of carnal knowledge of a minor female and indecent assault. State v. Greene, supra, 292, 287 A.2d 386. There is language in that case which, although laconic, is expansive in tone and which could have been, and was, applied by the trial court, without great strain, to the circumstances of this case. Specifically, the court there stated: "The first contested evidential ruling was one which permitted the complaining witness to testify that the defendant began having sexual intercourse with her when she was eleven years old and that it happened every week. The other permitted her sister-in-law to testify that the complaining witness had shown her the marks on her neck and told her about the fight with the defendant, that he was the father of her child and that they had frequent sexual relations. We find no error in the rulings of the court, predicated on such cases as State v. Purvis, 157 Conn. 198, 207, 251 A.2d 178 [1968], cert. denied, 395 U.S. 928, 89 S.Ct. 1788, 23 L.Ed.2d 246 [1969]; State v. Dziob, 133 Conn. 167, 169, 48 A.2d 377 [1946]; State v. Sebastian, 81 Conn. 1, 3, 69 A. 1054 [1908]; State v. Byrne, 47 Conn. 465, 466 [1880]; State v. Kinney, 44 Conn. 153, 155 [1876]; State v. De Wolf, 8 Conn. 93 [1830]; see also 1 Wharton, Criminal Evidence (12th Ed.), p. 547 and 1971 Cum.Sup., pp. 133, 134; 1 Wharton, op. cit. § 295; note, 77 A.L.R.2d 841, 852." State v. Greene, supra, 161 Conn. 294-95, 287 A.2d 386. The opinion places no apparent limitation either on the testimony of the victim concerning the prior sexual assaults, or on the testimony of the victim's sister-in-law regarding the victim's statements to her relating the prior incidents. Furthermore, we must agree that this testimony is similar to that which the state introduced in the present case. We cannot agree, however, that the broad language in Greene justifies the introduction of the evidence at issue in this case.

It...