State v. Sullivan

• Decision Date: 12 May 1998
• Docket Number: No. 15648,15648
• Citation: 244 Conn. 640,712 A.2d 919
• Parties: STATE of Connecticut v. John W. SULLIVAN.
• Court: Connecticut Supreme Court

Page 919

712 A.2d 919

244 Conn. 640

STATE of Connecticut v.John W. SULLIVAN.

No. 15648.

Supreme Court of Connecticut.

Argued Dec. 4, 1997.

Decided May 12, 1998.

Lisa G. Steele, Special Public Defender, for appellant(defendant).

Denise B. Smoker, Assistant State's Attorney, with whom, on the brief, were Mark S. Solak, State's Attorney, and Mark Stabile, Assistant State's Attorney, for appellee(State).

Before BORDEN, BERDON, PALMER, McDONALD and PETERS, JJ.

PETERS, Associate Justice.

This appeal concerns the preliminary showing that a defendant in a sexual assault case must make before he may cross-examine a constancy of accusation witness with respect to the victim's alleged prior false complaint of sexual assault by another person.The state charged the defendant, John W. Sullivan, with sexual assault in the first degree pursuant to General Statutes § 53a-70 (a)(1)¹.After a jury trial, he was found guilty and sentenced to ten years imprisonment, execution to be suspended after five years.

The defendant appealed from the judgment of the Appellate Court, which, in a per curiam opinion, had affirmed the trial court judgment against him.² State v. Sullivan, 44 Conn.App. 902, 688 A.2d 368(1997).In response to his petition for certification to appeal, we granted certification limited to the following issue: "Whether the Appellate Court correctly concluded that the trial court did not abuse its discretion in excluding evidence regarding a constancy of accusation witness?"³ State v. Sullivan, 240 Conn. 919, 692 A.2d 815(1997).We affirm the judgment of the Appellate Court.

The jury reasonably could have found the following facts.In the summer of 1992, the defendant, then a Massachusetts state trooper, was married to the victim's first cousin.The victim was working part-time as a bookkeeper and part-time as an exotic dancer.She had done some modeling, including posing for nude photographs.On July 1, 1992, the defendant contacted the victim and told her that, along with twenty-five other people on a "secret indictment list,"she would be charged with telephone solicitation, drug trafficking, racketeering, prostitution and illegal pornography.The defendant stated that the police had copies of some of the victim's nude photographs, and that she was facing three to six years in prison.He told her that if she cooperated with him, he could have her name removed from the secret indictment list.The victim did not learn until September 15, 1992, that the defendant's representations were baseless.In the meantime, frightened by their apparent import, especially by the threat of criminal prosecution, she accompanied the defendant to various places, including a location in Connecticut, where he forced her to engage in sexual intercourse.When she discovered the true facts, she reported these events to the state police in both Connecticut and Massachusetts.

At his trial for having committed those sexual assaults, the defendant submitted a motion in limine requesting that the court allow him to cross-examine the victim and her father.The defendant sought the opportunity to cross-examine those two witnesses with respect to a statement that the father had made to the police.That statement represented that the victim had been sexually assaulted once before, in 1990, and that the Worcester, Massachusetts police had handled that investigation.Defense counsel informed the court that discussions with the Worcester police had revealed that they had no record of a complaint by the victim regarding this alleged prior incident.In support of his motion, the defendant submitted a copy of the father's statement to the police in the current case, and a letter from the Worcester police confirming that they had no record of a previous sexual assault investigation concerning this victim.

The trial court denied the defendant's motion.The court noted that this alleged prior sexual assault complaint had been mentioned only in a statement by the victim's father, not in the victim's own testimony.The court reasoned that cross-examination of the victim and her father regarding this collateral incident would be irrelevant and distracting.We agree with the Appellate Court;State v. Sullivan, supra, 44 Conn.App. 902, 688 A.2d 368; that the judgment of the trial court should be sustained.

In his appeal to this court, the defendant claims that, contrary to the conclusion of the Appellate Court, the trial court abused its discretion in disallowing this line of questioning.He asserts that the proffered evidence was relevant to show that the victim had lied to her father about an official investigation.According to the defendant, the fact that the victim's father had testified on her behalf as a constancy of accusation witness gave the defendant the right of cross-examination about the prior investigation.The defendant further argues that this line of questioning would not have violated Connecticut's rape shield law, General Statutes § 54-86f, ⁴ because the relevant inquiry would have focused, not on the occurrence of a sexual assault in 1990, but on the victim's alleged misrepresentation to her father about the existence of an official investigation.Finally, the defendant argues that, because the doctrine of constancy of accusation permits witnesses to present hearsay testimony to corroborate the victim's story, the defendant should be allowed broad latitude to cross-examine such witnesses to determine whether the victim had lied in the past about matters of similar gravity.

The constancy of accusation doctrine is well established in Connecticut and recently has been reaffirmed by this court.SeeState v. Troupe, 237 Conn. 284, 297-98, 303-304, 677 A.2d 917(1996);State v. Kelley, 229 Conn. 557, 565, 643 A.2d 854(1994);State v. Dabkowski, 199 Conn. 193, 199-203, 506 A.2d 118(1986).The doctrine originally was premised on the arguably inaccurate premise that, if a woman had been sexually assaulted, it would be "natural" for her to confide in others.⁵ See, e.g., State v. De Wolf, 8 Conn. 93, 99(1830).Until State v. Troupe, supra, at 304, 677 A.2d 917, we permitted witnesses to testify about the details of a victim's accounts of the alleged sexual assault on the theory that, if the victim's story were true, "the evidence would show constancy in the charge even to the details, and the truth would the more clearly appear."State v. Kinney, 44 Conn. 153, 156-57(1876);State v. De Wolf, supra, at 99.In State v. Troupe, supra, at 284, 677 A.2d 917, however, we restricted the doctrine so that a constancy of accusation witness could testify only to the fact and the timing of the victim's complaint.Even so limited, the evidence would be admissible solely for corroboration of the victim's testimony, and not for substantive purposes.Id., at 304, 677 A.2d 917.

Notwithstanding our decision in Troupe, we recognize that the constancy of accusation doctrine creates a tension between competing well recognized principles.It remains a powerful weapon in the state's arsenal to secure justice for victims of sexual assaults.It also, however, constitutes a potential threat to the accused's right of confrontation under the sixth amendment to the constitution of the United States and under article first, § 8, of the constitution of Connecticut.⁶ To resolve this tension, the defendant must be allowed an adequate opportunity to cross-examine constancy of accusation witnesses.Such cross-examination properly includes questioning the witness not only about the victim's report of the present charge, but also about the victim's prior false statements, to that witness, that tend to undermine the credibility of the victim's present complaint.

At trial in this case, the defendant sought to cross-examine the victim and her father about claimed false statements by the victim to her father regarding a prior alleged sexual assault and its investigation.The defendant's motion in limine stated that the subject of the proposed cross-examination was a "prior allegation of rape ... which the father claims was under investigation by the Worcester [p]olice [d]epartment."

As the defendant acknowledges, it is well established that "[t]he trial court has broad discretion in ruling on the admissibility of evidence."⁷ State v. Miller, 202 Conn. 463, 482, 522 A.2d 249(1987)."The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion."State v. Avis, 209 Conn. 290, 298, 551 A.2d 26(1988), cert. denied, 489 U.S. 1097, 109 S.Ct. 1570, 103 L.Ed.2d 937(1989).

In a sexual assault case, the admissibility of evidence of the victim's prior sexual conduct, including past allegations of sexual assault, is narrowly circumscribed by § 54-86f.⁸ A clear statement of the defendant's theory of relevance is all important in determining whether the evidence is offered for a permissible purpose.As the defendant conceded at oral argument, his offer of proof was not a model of clarity.The defendant's written motion in limine⁹ and supplementary oral representations to the trial court¹⁰ could be interpreted to present at least two possible theories of relevance.Considered together, they indicate that the proposed subject of cross-examination might have been: (1) claimed false allegations by the victim of a prior sexual assault; or (2) claimed false statements by the victim to her father regarding a previous investigation of a prior alleged sexual assault.¹¹ In this court, the defendant also argued that he sought to pursue this line of questioning in order to demonstrate that the victim had lied to a constancy of accusation witness about the existence of a serious felony investigation, without revealing that the investigation had involved a sexual assault charge.We conclude that the trial court acted within its discretion in disallowing this line of questioning on any of these...