State v. Pierson

• Decision Date: 26 August 1986
• Docket Number: No. 12504,12504
• Citation: 201 Conn. 211,514 A.2d 724
• Court: Connecticut Supreme Court
• Parties: , 55 USLW 2179 STATE of Connecticut v. David PIERSON.

Page 724

514 A.2d 724

201 Conn. 211, 55 USLW 2179

STATE of Connecticut v. David PIERSON.

No. 12504.

Supreme Court of Connecticut.

Argued June 11, 1986.

Decided Aug. 26, 1986.

David S. Golub, with whom, on the brief, was Richard Blumenthal, Stamford, for appellant (defendant).

Harry Weller, Special Asst. State's Atty., with whom were James G. Clark, Deputy Asst. State's Atty. and, on the brief, Arnold Markle, State's Atty. and John T. Walkley, Deputy Asst. State's Atty., for appellee (State).

Before PETERS, C.J., and SHEA, DANNEHY, CALLAHAN and STOUGHTON, JJ.

SHEA, Associate Justice.

After a jury trial, the defendant was convicted of sexual assault in the second degree in violation of General Statutes § 53a-71. In his appeal the defendant claims error (1) in the failure of the court to instruct the jury on the element of general intent to perform the physical acts that constitute the crime; and (2) in certain evidentiary rulings concerning the patient-psychiatrist privilege created by General Stat- §§ 52-146d and 52-146e, claimed to have restricted both his cross-examination and direct examination of a psychiatric counselor-therapist who testified for the state. We conclude that additional proceedings are needed because of the failure of the trial court to conduct a voir dire of the witness to ascertain whether he had any information concerning the mental condition of the complainant, a thirteen year old boy, that would have been admissible to affect his credibility as a witness.

From the evidence at trial the jury could reasonably have found that the complainant, his mother and another woman occupied, as combined house sitters and tenants, the first floor portion of a home in Madison owned by the defendant. The defendant continued to occupy a separate upstairs bedroom on the premises, which he used only occasionally.

According to the testimony of the complainant, about 4 a.m. on November 6, 1982, the defendant entered the room on the first floor where the boy was sleeping and sexually assaulted him by committing fellatio. The defendant then brought the boy upstairs to his own bedroom where he again sexually assaulted the boy in a similar manner. About 4:30 a.m. the complainant returned to his own room where he fell asleep.

When the complainant awoke about 7:30 a.m. he told his mother, who slept in a separate bedroom on the first floor, about the incident, and she called the police. The boy repeated his account of the crime to the investigating police officer. Later that morning he was taken to a child therapist who, according to a statement in a hospital record, had begun to counsel him and his mother about one month before the incident in relation to "parent-child conflicts." After telling his therapist about the sexual assault, the complainant was taken to a hospital for an examination. He again related his account of the crime, on this occasion to an emergency room physician and to a hospital social worker. At the trial the complainant's mother, the investigating police officer, the emergency room doctor, the hospital social worker and a schoolmate friend, all testified in varying detail about what the complainant had told them about the sexual assault incident.

I

The defendant filed no request to charge on the criminal intent he claims to be required as an element of the offense of sexual assault in the second degree, nor did he except to the charge as given. Realizing that review of his claim would ordinarily be precluded by failure to raise the issue in the trial court; Practice Book §§ 854, 3063; the defendant invokes the exception for fundamental constitutional errors depriving a person of a fair trial that we recognized in State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). He claims that, although no specific intent is expressly required by General Statutes § 53a-71 ¹ for sexual assault in the second degree, at least a jury instruction upon the general intent to do the proscribed acts that constitute the offense was constitutionally necessary. Despite the absence of any request or exception in the trial court, this court has treated as a claim reviewable under Evans, the failure to charge upon an essential element of a crime. State v. Cobb, 199 Conn. 322, 326, 507 A.2d 457 (1986); State v. Kurvin, 186 Conn. 555, 558, 442 A.2d 1327 (1982); State v. Griffin, 175 Conn. 155, 162-63, 397 A.2d 89 (1978). The defendant claims that a general intent to do the prohibited act is an element of every crime and that a jury charge omitting any reference to general intent is fatally deficient. Such a claim qualifies for Evans review at least to determine whether any fundamental constitutional right of the defendant has been violated. State v. Hinckley, 198 Conn. 77, 86-87, 502 A.2d 388 (1985).

Section 53a-71 (a) provides that "[a] person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is (1) under fifteen years of age...." The term "sexual intercourse" is defined to include "fellatio." General Statutes § 53a-65 (2). ² In charging the jury the trial court declared that the statute required proof of two elements: (1) that the defendant had engaged in sexual intercourse with the victim; and (2) that the victim was under fifteen years of age at the time of the offense. This instruction corresponded precisely with our statement of the elements of the offense in State v. Arroyo, 181 Conn. 426, 430, 435 A.2d 967 (1980). We have held that sexual assault in the first degree is a general intent crime with no element of specific intent. State v. Rodgers, 198 Conn. 53, 62, 502 A.2d 360 (1985); State v. Johnson, 185 Conn. 163, 176, 440 A.2d 858 (1981) aff'd, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983). We have similarly construed the portion of General Statutes § 53-21 that proscribes "acts directly perpetrated on the person of the minor and injurious to his moral or physical well-being" not to require proof of a specific mental element. State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963); see State v. Martin, 189 Conn. 1, 12, 454 A.2d 256 (1983). Accordingly, we conclude, despite the defendant's suggestion to the contrary, ³ that the only intent required for a violation of § 53a-71 is a general intent to perform the acts that constitute the offense.

"To some extent ... all crimes of affirmative action require something in the way of a mental element--at least an intention to make the bodily movement which constitutes the act which the crime requires." LaFave & Scott, Criminal Law (1972) § 28, p. 201. Such an intent, to perform certain acts proscribed by a statute, we have referred to as the general intent ordinarily required for crimes of commission rather than omission. State v. Martin, supra, 13, 454 A.2d 256; State v. Bitting, 162 Conn. 1, 5, 291 A.2d 240 (1971). That the defendant intended to perform the physical acts that constitute the crime of sexual assault in the second degree in the manner proved by the evidence was implicitly a part of the state's burden of proof and, in that sense, an element of the crime. "At all events, it is clear that criminal liability requires that the activity in question be voluntary." LaFave & Scott, supra, § 25, p. 180; see Model Penal Code § 2.01 (1).

Our acknowledgement of the fundamental principle that a criminal act must be volitional does not mean that a charge to a jury that omits reference to this principle is constitutionally defective where the evidence at trial contains no suggestion that the defendant's conduct was involuntary and he has made no such claim either in the trial court or on appeal. The defendant has produced no authority in support of the novel proposition he advances and we have discovered none. There are some basic aspects of criminal liability that may be presumed and thus need not be discussed in a charge to the jury, at least in the absence of a request or some evidence casting doubt upon the presumption. Sanity of a defendant, an essential requirement for criminality, even before the advent of the 1983 amendment to General Statutes § 53a-13 making insanity an affirmative defense; Public Acts 1983, No. 83-486; never became an issue upon which jury instructions were required until evidence that the defendant may have lacked the requisite mental capacity came into the case. State v. Rodgers, supra, 56, 502 A.2d 360. Duress and entrapment are recognized defenses to criminal charges because they also implicate the volitional aspect of criminality. General Statutes §§ 53a-14, 53a-15. Though the state bears the burden of disproving these defenses, once they are raised by the presentation of some evidence supporting them, there is no requirement that evidence negating them be produced as part of the state's prima facie case. A fortiori there is no requirement that a court suo motu instruct a jury upon these defenses in cases where the evidence produced by both parties contains not the remotest hint of their applicability.

The defense of the absence of a general intent to do a criminal act may be treated similarly. Until something in the evidence indicates the contrary, the court may presume the defendant intended the prohibited bodily movements that constitute the offense and that he has acted under no duress, unlawful inducement in the nature of entrapment, or lack of requisite mental capacity. Accordingly, we reject the defendant's claim that in this case the failure of the court to instruct the jury upon the general intent requirement was constitutional error or, indeed, error at all.

II

The defendant claims that the trial court erroneously applied the patient-psychiatrist privilege created by General Statutes §§ 52-146d and 52-146e ⁴ to restrict his cross-examination and also his direct examination of a witness the state had called to prove "constancy of accusation."

It is important in our analysis of this claim of error to...