State v. Samuels, (AC 21681).

Citation817 A.2d 719,75 Conn. App. 671
Decision Date25 March 2003
Docket Number(AC 21681).
CourtAppellate Court of Connecticut

Dranginis, Flynn and Bishop, Js. Jeanne M. Zulick, deputy assistant public defender, with whom was G. Douglas Nash, public defender, for the appellant (defendant).

Melissa L. Streeto, deputy assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Kimberley N. Perrelli, senior assistant state's attorney, for the appellee (state).



The defendant, Ralston E. Samuels, appeals from the judgment of conviction, rendered after a jury trial, of four counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1)1 and four counts of risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21 (2).2 He claims that the trial court improperly replaced a juror with an alternate by using a nonstatutorily sanctioned selection method, that it abused its discretion by allowing the state to amend its long form information after the jury had been impaneled and that the court improperly allowed the state to call multiple constancy of accusation witnesses. We reverse the judgment of the trial court. The jury reasonably could have found the following facts. During the 1998-1999 school year, the victim,3 who was then thirteen years old, lived with her grandmother. In the basement apartment of the grandmother's house lived the defendant, who was twenty-four years old at the time. The victim met the defendant shortly after she moved into her grandmother's house in September, 1998. The defendant would frequently spend time with the grandmother, who was partially blind, and the victim, and occasionally would drive them to go shopping.

In the summer of 1999, a dispute arose between the defendant and the grandmother, ostensibly over an unpaid loan to the defendant by the grandmother. The defendant was asked to move out of the basement apartment, which he did in late June, 1999. Soon after, the grandmother asked the victim's uncle, a friend of the defendant, to ask the victim if anything "was going on between [the defendant] and [the victim]." When the uncle asked the victim about her relationship with the defendant, she alleged that on four separate occasions, she had had sexual intercourse with the defendant.4 The police were notified shortly thereafter, and a report was filed on July 2, 1999.

At the trial, which took place from July 17 through 20, 2000, the state called fourteen witnesses, seven of whom were constancy of accusation witnesses.5 The defense called the defendant as its sole witness. The jury found the defendant guilty on all counts. On September 29, 2000, he was sentenced to thirty years incarceration, execution suspended after fifteen years, with twenty-seven months as a mandatory minimum sentence. Additional facts will be supplied as necessary.

On appeal, the defendant advances the following claims. When a juror needed to be replaced by an alternate, the court did not select the new juror by lot, as was prescribed by statute.6 Further, the defendant claims that the state amended its long form information at such a late date in the trial as to violate his constitutional right to due process. Last, the defendant claims that four of the constancy of accusation witnesses improperly were allowed to give testimony and that the admission of their impermissible hearsay testimony denied him a fair trial. Because we agree with the defendant as to the last claim, we need not reach the first two claims.


The constancy of accusation doctrine has a long history in Connecticut, but its underlying rationale, questionable from the outset, has come under increased scrutiny in recent years.7State v. Troupe, 237 Conn. 284, 294, 677 A.2d 917 (1996) (en banc). The rationale stems from the ancient belief that a victim of a violent crime would naturally cry out immediately after an assault and that, by implication, if such a victim did cry out, her complaint was more likely true. Id., 295. That belief led to the corresponding supposition that a jury would treat with skepticism one who did not cry out soon after she was attacked. Id., 294. So profound was the belief in that sociological phenomenon, and so entrenched was the distrust in a victim's delayed complaint, that proof of "hue and cry" became a formal prerequisite for the prosecution of any rape case.8 Id., 294-96.

With the advent of the hearsay rule in the early 1800s, an exception was carved out for those fresh complaints, partially as a means to dispel the jury's inclination to distrust the victim if there were a delay in reporting. Id., 296. "Its use thereby forestalled the inference that the victim's silence was inconsistent with her present formal complaint of rape." (Internal quotation marks omitted.) Id. In effect, the fresh complaint rule allowed a victim to testify that she had told others about an alleged sexual assault as anticipatory rebuttal against an attack on her credibility, either by the defendant or by the unspoken bias of jurors who, it was presumed, would tend to discredit a victim's claims unless she offered testimony that she had complained soon after the assault.

The fresh complaint rule, in turn, spawned our current constancy of accusation doctrine.9 Accordingly, those to whom a victim purportedly made a complaint are permitted to testify that such a complaint was, in fact, made to them. That testimony is permitted to corroborate the victim's testimony that she made such a complaint. Unlike courts in the majority of states, Connecticut courts had, historically, allowed constancy testimony for both the fact that a victim reported an assault and the details of what was said by the victim to the witness. Id., 297-99. Thus, the witness to whom the victim purportedly complained was permitted to testify as to the details of the victim's complaint to corroborate the victim's testimony that she did, in fact, complain as stated. Recently, however, our courts' attitude to such testimony has become more circumspect, and, although the central element of the doctrine has been maintained, the scope of it has been consciously restricted.

In Troupe, our Supreme Court expressly modified the doctrine to allow constancy of accusation testimony for the limited purpose of showing only that a complaint was made. Id., 304. Testimony is to be restricted to such facts as the identity of the alleged perpetrator and the timing of the victim's complaint, details to be "limited to those necessary to associate the victim's complaint with the pending charge . . . . Thus, such evidence is admissible only to corroborate the victim's testimony and not for substantive purposes. Before the evidence may be admitted, therefore, the victim must first have testified concerning the facts of the sexual assault and the identity of the person or persons to whom the incident was reported." (Emphasis added.) Id., 304-305. The court's modification of the constancy of accusation rule was codified in § 6-11 (c) of the Connecticut Code of Evidence.10

In Troupe, our Supreme Court held that "[a]lthough we agree that the assumptions underlying the constancy of accusation doctrine are unfounded, we are also cognizant of the fact that those misconceptions are not uncommon. . . . Hence, we hesitate to discard the benefit of this rule to a woman who does complain without a clearer understanding of the burdens the rule may impose on the woman who does not complain." (Internal quotation marks omitted.) Id., 301-302.


Through that prism of history, we now review the defendant's claims. The defendant claims, for two different reasons, that the court improperly allowed the testimony of four different constancy of accusation witnesses and requests that we review those claims. To the extent that the defendant raises claims not raised at trial, he requests review under the guidelines set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and, additionally, he requests plain error review. See Practice Book § 60-5.

The first reason, the defendant argues, is that the victim did not testify that she actually had complained of the incident(s) to the witnesses and, therefore, the witnesses' testimony was not corroborative of the victim's testimony. The second reason offered by the defendant is that the alleged complaints to three of the witnesses occurred after the formal report to the police and that this should preclude the witnesses from being called under the constancy of accusation doctrine. Over the defendant's objection, all of those witnesses were, nevertheless, called on by the state as constancy of accusation witnesses and all testified. We will examine the testimony of the victim and the witnesses in regard to each of those claims.

We note at this point that evidentiary claims are reviewed pursuant to an abuse of discretion standard. State v. Pereira, 72 Conn. App. 107, 117, 806 A.2d 51 (2002), cert. denied, 262 Conn. 931, 815 A.2d 135 (2003). Moreover, "[e]videntiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice." (Emphasis added; internal quotation marks omitted.) State v. Alvarez, 216 Conn. 301, 306, 579 A.2d 515 (1990).

A Constancy Witness T

The victim testified that while at a Valentine's Day party in February, 1999, she spoke about the defendant to two friends, one of whom, T, later was called as a constancy of accusation witness. The following colloquy took place between the prosecutor and the victim:

"[Prosecutor]: Did you tell anyone during the time that he was having sex with you? Did you tell anybody about him?

"[The Witness]: I told two people that—how he said that he considers me as his girlfriend.

"[Prosecutor]: Did you tell them anything else?

"[The Witness]:...

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