State v. Rolon, (SC 16451)

• Court: Supreme Court of Connecticut
• Citation: 777 A.2d 604,257 Conn. 156
• Decision Date: 31 July 2001
• Docket Number: (SC 16451)
• Parties: STATE OF CONNECTICUT v. SANTOS ROLON

257 Conn. 156
777 A.2d 604

STATE OF CONNECTICUT
v.
SANTOS ROLON

(SC 16451)

Supreme Court of Connecticut.

Argued March 14, 2001.

Officially released July 31, 2001.

Sullivan, C. J., and Borden, Palmer, Vertefeuille and Zarella, Js.

257 Conn. 157

Sarita I. Ordonez, special public defender, with whom were Michael O. Sheehan, special public defender, and, on the brief, Richard A. Reeve, special public defender, for the appellant (defendant)

John A. East III, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Mary A. SanAngelo, senior assistant state's attorney, for the appellee (state).

Opinion

SULLIVAN, C. J.

A jury found the defendant, Santos Rolon, guilty of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2),¹ one count of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A),² and one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (2).³ The defendant appealed from

257 Conn. 158

the judgment of conviction to the Appellate Court. We transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. The charges, which resulted in the defendant's conviction, were brought after the victim, J., the defendant's granddaughter, divulged to a social worker from the department of children and families (department) that she had been sexually abused by the defendant on several occasions while living in New Haven. The department and the New Haven police conducted an investigation, which resulted in the defendant's arrest, trial and conviction. On appeal, the defendant argues, inter alia, that he was deprived of his constitutional rights under the sixth and fourteenth amendments to the United States constitution, and article first, § 8, of the Connecticut constitution because the trial court excluded evidence regarding the alleged prior sexual abuse of J. by another individual.⁴ We reverse the

257 Conn. 159

judgment of conviction.⁵

The defendant contends that the trial court: (1) deprived him of his constitutional rights to confrontation, to present a defense and to a fair trial when it improperly applied Connecticut's rape shield statute; General Statutes § 54-86f;⁶ and denied him the opportunity

257 Conn. 160

to cross-examine witnesses on, or introduce evidence of, the prior sexual abuse of J. to show a possible alternative source of the sexual knowledge she displayed; and (2) improperly allowed three constancy of accusation witnesses to testify regarding the details of the alleged sexual assault in violation of the rule set forth in State v. Troupe, 237 Conn. 284, 304-305, 677 A.2d 917 (1996). We agree with the defendant that he is entitled to a new trial because he was denied his constitutional rights to confrontation, to present a defense and to a fair trial when the trial court prohibited him from presenting evidence of J.'s prior sexual abuse where the factual similarities between the present and previous instances could have: (1) demonstrated an alternative source for J.'s sexual knowledge; and (2) resulted in J.'s confusion over the identity of the perpetrator. Accordingly, we reverse the judgment and remand the case for a new trial.⁷ We also conclude that the trial court abused its discretion by allowing the

257 Conn. 161

detailed testimony of three constancy of accusation witnesses in violation of the standards governing admission of such testimony set forth in State v. Troupe, supra, 304-305.⁸

The following facts and procedural history are relevant to the issues on appeal. The victim, J., born on March 9, 1990, resided in Puerto Rico with her mother, N., and her younger brother, L., until January, 1994. While in Puerto Rico, N., a diagnosed schizophrenic, experienced severe mental health problems rendering her unable to take care of herself or her children. N.'s father, the defendant, went to Puerto Rico and brought her back to New Haven to obtain treatment and counseling. J. and L. remained in Puerto Rico with their father, paternal grandmother and the paternal grandmother's boyfriend.⁹ In 1994, N. returned to Puerto Rico with the defendant to seek custody of her children. The record indicates that during the custody proceedings, J. exhibited behavior indicative of having been sexually abused. The court in Puerto Rico found that J.'s paternal grandfather had been sexually abusing her since she was as young as eight months of age.¹⁰ As a result, the court awarded custody of both children to N. Custody, however, was conditioned upon the court's order that the family reside with the defendant in Connecticut.¹¹

The defendant and his family returned to New Haven in January, 1994.¹² While living in New Haven, J. and

257 Conn. 162

L. began acting out sexually toward one another. N. reported finding them "touching and kissing each other." Concerned that the behavior was linked to the abuse J. had suffered in Puerto Rico, the defendant and N. contacted the department to obtain counseling. Several other organizations also treated J. for the trauma she had incurred as a result of the abuse in Puerto Rico, including the department, Hill Health Center (Hill center), and the Yale New Haven Child Sex Abuse Clinic (Yale clinic).¹³

In April, 1995, the defendant moved his family to a larger apartment. By this time, however, the relationship between the defendant and N. had deteriorated significantly. N. reported to social workers that the defendant was too controlling, that his punishment of the children was too severe and that he had a violent temper. In May, 1995, N. went to the department and explained to social workers there her fear of the defendant. As a result, police escorted N. to the defendant's apartment to remove her belongings and those of the children. N. took the children and moved out of the defendant's home. The family moved to Willimantic, where J.'s maternal grandmother lived with N.'s older son. After temporarily residing with her mother, N. moved to her own apartment with her two younger children. The family did not see the defendant again after moving out of his home.

Social workers employed by the department in Willimantic continued to treat the family after their move from New Haven. According to social worker Syndia Serrano, the focus of J.'s treatment was the sexual abuse that she had suffered while living in Puerto Rico. J. and L. were also taught how to cope with their mother's mental illness. Social workers continued to observe N.'s

257 Conn. 163

neglect of the children, however, despite her continued treatment. As a result, in March, 1996, while the family was still under the care and monitoring of the department, the commissioner filed a petition for temporary custody. The children were removed from N.'s care and taken to the department for processing and placement in foster care. On that date, social workers observed "sexual play" between J. and L. The children built a "tent," went inside, and were kissing and touching each other. The observation of that behavior led the department to place the children in separate foster homes. After being removed from N.'s care, J. and her brother continued counseling with the department in Willimantic. During 1994 and 1995, J. was counseled by Serrano, and the two became very close

Approximately ten months after J. was removed from N.'s care, J. first disclosed to Serrano the defendant's alleged sexual abuse. Alarmed by the disclosure, Serrano reported to the department's investigative office that J. told her that "when she lived with her mother and [the defendant] in New Haven, [the defendant] would `kiss her all over.' ... J. reported that when she told [the defendant] to stop, he would not." She usually referred to the defendant as "Poppy Santos." At that time, J. was also in counseling at United Services Counseling Center in Willimantic and had made similar disclosures of the sexual abuse.<sup>14</sup> Michelle Lumb, an investigative social worker, was assigned to the case. Lumb interviewed J. after discussing her history with Serrano. J. told Lumb that the defendant "put his hands and `huevitos' on her `chocha'." "Huevitos" is the Spanish word for the male genitalia; "chocha" is the Spanish word for vagina or female genitalia. Lumb showed J.

257 Conn. 164

anatomically correct drawings of a young girl approximately J.'s age and of an older man resembling the defendant. J. told Lumb in Spanish that "Poppy Santos" had "put his `huevitos' on her `chocha.'" When Lumb asked J. to circle the areas where the defendant had touched her, she indicated the genital, buttocks and breast areas. When Lumb asked J. to indicate what parts of his body the defendant had used to touch her, she indicated his hands and his genital area

Lumb contacted the New Haven police department and informed Detective Lisa Fitzgerald of the details of J.'s disclosure. Fitzgerald subsequently contacted the defendant and notified him of the allegations. The defendant denied ever having touched J. in an inappropriate manner. When Fitzgerald contacted N. about the allegations, she was very hostile and said that her daughter was fabricating the story. Fitzgerald contacted clinics and health care facilities that had counseled J., which included the department, the Hill center, and the Yale clinic. In an interview with Florence Fruedenthal of the Yale clinic, Fitzgerald was informed of the prior sexual abuse in Puerto Rico for which J. had been counseled in 1994 and 1995. Fitzgerald noted in her arrest warrant that Fruedenthal "stated that [J.] had stated to her that Rene [Salvia] had touched her here and here pointing to her vaginal and anal area ... that Rene had touched her with his hand and fingers...."¹⁵

As part of the investigation, counselors arranged for J. to have a medical examination in order to document any physical manifestation of the defendant's alleged sexual abuse....