State v. Velez

• Decision Date: 13 December 1988
• Docket Number: No. 6667,6667
• Citation: 551 A.2d 421,17 Conn.App. 186
• Parties: STATE of Connecticut v. William VELEZ.
• Court: Connecticut Court of Appeals

Page 421

551 A.2d 421

17 Conn.App. 186

STATE of Connecticut v. William VELEZ.

No. 6667.

Appellate Court of Connecticut.

Argued Oct. 13, 1988.

Decided Dec. 13, 1988.

John R. Williams, New Haven, for appellant (defendant).

Susan C. Marks, Deputy Asst. State's Atty., for appellee (State).

Before BORDEN, DALY and O'CONNELL, JJ.

BORDEN, Judge.

The defendant appeals from the judgment of conviction, after a jury trial, of two counts of risk of injury to a minor in violation of General Statutes § 53-21, ¹ and one count of sexual assault in the second degree in violation of General Statutes § 53a-71(a)(1). ² He claims that the judgment of conviction must be reversed on the following grounds: (1) the trial court erred in admitting certain constancy of accusation testimony; (2) the trial court erred by prohibiting the defendant from presenting certain evidence to impeach the credibility of the witnesses against him; (3) certain comments made by the assistant state's attorney during final argument undermined the requirement of proof beyond a reasonable doubt; and (4) the court's jury instructions permitted a verdict that was not unanimous. We find no error.

The jury could reasonably have found the following facts. The two female victims were E, age nine, and her sister, A, age seven. In the summer of 1986, their mother occasionally left them with the defendant while she went shopping with the defendant's wife. On one occasion, E was watching a movie entitled "Mother's Day" on a video cassette recorder in the defendant's bedroom, while A was playing in the living room. The defendant was wearing shorts but no shirt. E got under the bed covers with the defendant. The defendant unzipped E's pants, put his hand inside her pants and touched her genital area. He did not remove his shorts but he did expose his penis. On another occasion, the defendant took A into his bedroom, where he pulled down her pants and put his penis into her vagina.

I

The defendant first claims that the trial erred by admitting certain constancy of accusation testimony (1) because the testimony was not consistent with that of the victim, and (2) because the court did not make an "express finding" that the statements made by the victims to the witnesses were made at times when it was natural for the victims to make them. We disagree.

The facts relevant to this claim are as follows. E told her younger sister, A, about the incident involving the defendant when it happened, but she did not tell anyone else until near Christmastime, when she told her babysitter, Brunilda Mercado. Both E and A testified that they had told their mother, a doctor, a police officer and a counselor about what the defendant had done to them. Over the defendant's objection and exception, these witnesses testified as constancy of accusation witnesses. Mercado testified that on December 29, 1986, E and A described to her what the defendant had done to them. Evelyn Vega, the mother of the victims, testified that near Christmastime, 1986, and later, when the victims were in counseling, they had told her what the defendant had done to them. Rosemary Klenk, a pediatrician, testified that she had examined the victims on January 5, 1987. Sergeant Robert S. Braccia of the Stamford police department testified that he had interviewed the victims on December 30, 1986. Similarly, Anna Badini, a psychologist, testified that between February and June, 1987, when she was treating the victims, they had described to her what the defendant had done to them. Each of these witnesses related the victims' descriptions of the defendant's conduct.

We first consider the defendant's argument that the testimony of the witnesses should have been excluded because in certain particulars it was inconsistent with the testimony of the victims. Although our Supreme Court has analyzed constancy of accusation testimony as "a subcategory of prior consistent statement evidence"; State v. Ouellette, 190 Conn. 84, 98, 459 A.2d 1005 (1983); neither the Supreme Court nor this court has required as a condition of its admissibility that there be no inconsistencies between the victim's testimony and that of the constancy of accusation witness. The witness may recount the details of the statement made to him by the victim, provided that the victim first testifies "concerning the offense" and "identifies the persons to whom she made the statement." Id., at 97, 459 A.2d 1005. Any inconsistencies between the victim's testimony and the testimony of the witness are left to the jury for a determination of whether the victim was constant and consistent in relating what had happened to her. State v. Brigandi, 186 Conn. 521, 531, 442 A.2d 927 (1982).

The defendant also argues that the evidence was inadmissible because the court did not make an "express finding" that the statements by the victims to the witnesses were made at a time when it was natural for the victims to make them. The defendant does not argue that there was no evidence from which the court could make such an express finding. Rather, he contends that State v. Ouellette, supra, 190 Conn. at 99-100, 459 A.2d 1005, requires such an express finding as a precondition to admissibility. This contention is based on language in State v. Ouellette, supra, at 99, 459 A.2d 1005, that before constancy of accusation testimony can be admitted, "the trial court must find, under the circumstances in each case ... that the statement was made at a time when it was natural to make it...." See also id., at 100, 459 A.2d 1005; Bodak v. Masotti, 14 Conn.App. 347, 354, 540 A.2d 719 (1988) (finding of impeachment by recent fabrication must be made before prior consistent statement can be admitted). The state argues that such an express finding is not a precondition of admissibility, and that any delay between the time of the offense and when the victim told the witness is a matter of the weight of the testimony rather than its admissibility. State v. Brigandi, supra, 186 Conn. at 529, 442 A.2d 927. We need not resolve this dispute, however, because in this case the trial court did find, in effect, that the statements were made at the requisite time.

Mercado was the first constancy of accusation witness. In the trial court, the defendant, citing State v. Ouellette, supra, objected on the ground that the statements to Mercado were not made when it was natural for the victims to make them. The court overruled the objection noting the date of the victims' conversation with Mercado, and noting also that it must "[t]ake into consideration ... that these are children under the age of sixteen who are making the complaint." It also noted that "our statutes ... recognize that there may be a delay between the alleged act performed upon a child and the initial complaint." ³ We read this as the functional equivalent of a finding by the court that the statements were made to Mercado when it was natural for the victims to make them. Even if State v. Ouellette, supra, requires an appropriate finding by the court as a precondition to the admissibility of constancy of accusation testimony, we do not read it as requiring the talismanic use of the word "find" in its ruling. Whatever the contours of Ouellette, they are satisfied where, as here, it is clear that the court considered the issue of the timing of the victim's statement and articulated on the record its determination that the timing of the statement was natural.

As to the testimony of the other constancy of accusation witnesses, there was no comparable colloquy between the court and counsel, because in each instance the defendant's objection consisted of a shorthand reference to his earlier objection, and the court's ruling, in similar fashion, referred to its earlier ruling. ⁴ Under these circumstances, we regard the court's rulings as having incorporated the finding it made earlier in overruling the defendant's objection to Mercado's testimony. This is particularly true because the evidence indicated that the victims told their mother immediately after telling Mercado, that they told Braccia the next day when their mother brought them to the police department, that their statements to Klenk were made only five days later, when she examined the victims, and that their statements to Badini were made over the next five months while she was treating them.

II

The defendant next claims that the court erred in two evidentiary rulings that he claims impaired his right of cross-examination and his right to present a defense. These claims are without merit.

The first claim concerns the defendant's cross-examination of Vega, the mother of the victims. She had testified that she and the defendant's wife, Nilda Velez, had had an argument two months before she found out about the defendant's conduct with her daughters, and that thereafter she did not bring her daughters to the defendant's house. The defendant asked what the fight was about. The court sustained the state's objection on the ground that the question concerned an issue that was "too peripheral" and irrelevant to the case.

The defendant claims that the court's ruling curtailed his right to cross-examine Vega for bias. He argues that his offer of proof at trial was that he would show that Nilda Velez had accused Vega of corrupting the victims by her own behavior, and that Vega fabricated her accusations against the defendant and influenced her daughters to do the same in retaliation against Nilda Velez. The defendant's argument, however, misdescribes the offer of proof at trial. The defendant's offer of proof was that the argument concerned the way that Vega was raising the children, and that "there is influence a child feels towards its parents when they see that the parent is being attacked by an outside party--that they will retaliate." Thus, the claim at trial was not that Vega had retaliated or influenced the victims to do so, but that the victims did so on their own in...