State v. Troupe

• Decision Date: 11 June 1996
• Docket Number: No. 14882,14882
• Citation: 677 A.2d 917,237 Conn. 284
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Floyd TROUPE.

Page 917

677 A.2d 917

237 Conn. 284

STATE of Connecticut v. Floyd TROUPE.

No. 14882.

Supreme Court of Connecticut.

Argued Jan. 17, 1996.

Decided June 11, 1996.

Bradford S. Babbitt, Special Public Defender, with whom were Andrew H. Pinkowski, Special Public Defender, and, on the brief, Linda L. Morkan, Special Public Defender, for appellant (defendant).

Margaret Gaffney Radionovas, Assistant State's Attorney, with whom, on the brief, were Michael Dearington, State's Attorney, Cecelia B. Wiederhold, Assistant State's Attorney, and Nancy L. Gillespie, Deputy Assistant State's Attorney, for appellee (State).

Jon L. Schoenhorn, Hartford, filed a brief for the Connecticut Criminal Defense Lawyers Association as amicus curiae.

Mario T. Gaboury, Hartford, filed a brief for the Center for the Study of Crime Victims' Rights, Remedies and Resources, University of New Haven et al. as amici curiae.

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON, NORCOTT, KATZ and PALMER, JJ.

PALMER, Associate Justice.

A jury convicted the defendant, Floyd Troupe, of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1), sexual assault in the third degree in violation of General Statutes § 53a-72a(a)(1)(A), and kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A). ¹ On Appeal ² from the judgment of the trial court sentencing him to a total effective sentence of fifteen years imprisonment, ³ the defendant claims that: (1) the admission of evidence under the common law constancy of accusation doctrine violated his rights under the confrontation clause of the sixth amendment to the United States constitution; (2) even if we conclude that the constancy of accusation doctrine is not unconstitutional, we should abandon, or at least modify, the rule; ⁴ (3) the trial court improperly denied his motion to exclude the testimony of an expert witness for the state on the ground that the witness had violated the terms of the court's sequestration order; (4) his fair trial rights were violated by the state's late amendment of the charging information and by its late disclosure of a laboratory report; and (5) § 53a-92(a)(2)(A) is unconstitutionally vague as applied to this case. Although we today announce a modification of the constancy of accusation doctrine, we nevertheless affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On a Sunday morning in May or June, 1992, the victim, a thirty year old female, left her West Haven residence to take a walk on the beach promenade several blocks from her home. On her way to the promenade, the defendant, whom the victim did not know, approached her and inquired whether he could walk with her. She agreed, and they walked and talked together for approximately forty-five minutes to an hour. After stopping briefly to purchase a soft drink at a restaurant, the defendant and the victim exchanged telephone numbers. When the defendant asked the victim if he could see her that night, she declined his request. The defendant then departed, and the victim returned home.

Over the next few months, a series of phone calls ensued between the victim and the defendant, resulting mostly in an exchange of messages on their respective telephone answering machines. On one occasion when the defendant spoke with the victim on the telephone, he asked her for a date. She again declined the defendant's invitation.

Some time in early mid-August, the victim returned home from vacation to find a message from the defendant on her answering machine. They were unable to speak to one another until the evening of August 18, at which time the victim mentioned to the defendant that she was going shopping. The defendant asked to accompany her, and the victim agreed. The victim also agreed to pick up the defendant at his residence. Upon the victim's arrival at the defendant's apartment building, the defendant came down to her car, told her that he was not ready to leave, and suggested that she come up to his apartment while he finished dressing. The victim agreed and accompanied the defendant to his third floor apartment. The defendant offered the victim a drink, which she refused, and then he proceeded to drink a beer and smoke a marijuana cigarette.

The victim became concerned that the defendant was not interested in shopping with her and informed him that she was leaving. The defendant walked over to the couch where the victim was seated and told her that he did not want her to leave. After telling her how pretty she was, the defendant kneeled down in front of her and, against her wishes, placed his hands under her blouse. Despite her protests and efforts to push him away, the defendant proceeded to fondle and kiss her breasts. The victim finally managed to pull away from the defendant, but as she tried to leave, he grabbed her, pulled her down onto a nearby mattress, and fell on top of her. The victim, who continued to resist as the defendant attempted to remove her clothing, eventually freed herself and again tried to leave. The defendant caught her, however, and pushed her back down onto the mattress. The defendant then forcibly removed the victim's overalls and underpants and forced her to engage in sexual intercourse with him.

After sexually assaulting the victim, the defendant prevented her from leaving the apartment until he had finished dressing. When the defendant finally allowed the victim to leave, he followed her to her car and insisted that he wanted to see her again. The defendant eventually backed away from the victim's car and she drove off, proceeding directly to the nearby home of a friend, David McCall, whom she told about the incident. Several days later, the victim called the New Haven Rape Crisis Center and told counselor Beverly DeLoatch about the assault. A few weeks thereafter, the victim told another friend, Judy Dixon, about the incident. In early September, the victim gave a recorded statement concerning the sexual assault to Detective Mary Fish of the New Haven police department. On the basis of the victim's statement to Fish, the defendant was arrested and charged with sexual assault and kidnapping.

At trial, the victim testified about the sexual assault and identified each of the four individuals whom she had told about the incident. The state thereafter elicited the testimony of those four persons. ⁵ The testimony of each of them was admitted as constancy of accusation evidence. ⁶ Additional facts will be set forth as they become relevant.

I

The defendant first claims that the admission into evidence of constancy of accusation testimony ⁷ violated his rights under the confrontation clause of the sixth amendment to the federal constitution. ⁸ The defendant acknowledges that we have recently concluded that constancy of accusation evidence does not run afoul of the federal confrontation clause. See State v. Kelley, 229 Conn. 557, 643 A.2d 854 (1994). He claims, however, that we should reconsider our determination in light of United States Supreme Court precedent holding that an out-of-court statement not falling within a firmly rooted hearsay exception is presumptively unreliable, and therefore inadmissible for confrontation clause purposes, unless the hearsay statement exhibits particularized guarantees of trustworthiness. See, e.g., Idaho v. Wright, 497 U.S. 805, 818, 821-22, 110 S.Ct. 3139, 3148, 3149-50, 111 L.Ed.2d 638 (1990). Specifically, the defendant argues that because the constancy of accusation doctrine is not a well established hearsay exception ⁹ and because evidence introduced under the doctrine carries no special indicia of reliability, ¹⁰ constancy of accusation testimony violates the sixth amendment. We disagree.

The defendant's argument ignores a fundamental tenet of confrontation clause jurisprudence, namely, that the clause "is not violated by admitting a declarant's out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination." (Emphasis added.) California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970). It is true, as the defendant claims, that since Green, the United States Supreme Court has clarified the contours of the confrontation clause insofar as it relates to the admission of out-of-court statements when the declarant does not testify. See, e.g., White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) (spontaneous declaration and medical examination exceptions to hearsay rule do not require declarant either to testify or to be found unavailable); United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986) (moving party need not prove unavailability of declarant if statement sought to be admitted falls within coconspirator hearsay exception); Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) (hearsay exception for prior testimony does not violate sixth amendment if declarant either testifies or is unavailable; in latter case, testimony admissible only upon showing that it bears adequate indicia of reliability). In none of these cases, however, has the court retreated from its holding in Green that the sixth amendment is not violated if the declarant testifies in court and is subject to cross-examination. ¹¹ Because constancy of accusation evidence is not admissible unless the victim has testified, and is subject to cross-examination, concerning the crime and the identity of the person or persons to whom the victim has reported the crime; see, e.g., State v. DePastino, 228 Conn. 552, 566, 638 A.2d 578 (1994); State v. Brice, 186 Conn. 449, 453-55, 442 A.2d 906 (1982); we reject the defendant's contention that the constancy of accusation doctrine violates the sixth amendment.

II

The defendant also claims that we should abandon, or at least severely limit, the constancy of accusation doctrine. Although we decline to...