State v. Yednock, 5863

Citation541 A.2d 887,14 Conn.App. 333
Decision Date03 May 1988
Docket NumberNo. 5863,5863
CourtAppellate Court of Connecticut
PartiesSTATE of Connecticut v. David YEDNOCK.

John C. McBride, pro hac vice, for appellant (defendant).

C. Robert Satti, Sr., State's Atty., with whom on the brief, was Irving L. Aronson, Asst. State's Atty., for the appellee (State).

Before DALY, BIELUCH and FOTI, JJ.

FOTI, Judge.

The defendant appeals from the judgment of conviction, after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70, injury or risk of injury to, or impairing the morals of, a child in violation of General Statutes § 53-21, and delivery of liquor to a minor in violation of General Statutes § 30-86. The defendant claims on appeal that the court erred (1) in allowing an out-of-court statement of the victim to be read to the jury in lieu of her own verbal testimony, (2) in allowing the state to proceed on the original information, (3) in denying a request for a continuance, and (4) in admitting a prior oral statement of the victim for the limited purpose of impeachment only. We find no error.

From the evidence presented, the jury could reasonably have found the following facts. The victim, who was fifteen years of age at the time of the trial and fourteen years of age at the time of the offenses, had known the defendant for some time prior to the assault and had babysat for his children several times during the eighteen months prior to the assault. In early November of 1985, the victim and a girlfriend went to the defendant's home to visit his wife. When they arrived, the defendant told them his wife was not at home but was expected to return at approximately 10:30 p.m. The girls decided to stay and visit with the defendant's children. The defendant, who was visiting with a male friend, asked the girls if they wanted some soda. He gave them soda which had something else in it. The victim subsequently saw the defendant putting vodka in a second drink which he gave to her. She had three of these drinks. A short time later, after the defendant had taken a shower, he called the victim into the bedroom, kissed her and touched her breasts through her clothing.

Several nights later, the victim and her girlfriend again went to the defendant's home to visit with the defendant's wife. The defendant was the only one there. He gave the girls vodka to drink, took a shower, and went into the bedroom where he called for both girls, saying he wanted to show them something. The defendant wore only a towel. After they entered the room, the defendant closed the bedroom door and turned off the light. The victim thought he would kiss her again, so she went into the living room. She started to feel ill from drinking and was told by the defendant to go into the bedroom and lie down. After she did this, the defendant and her girlfriend came back into the bedroom; all three laid on the bed with the defendant holding both girls down. The defendant first attempted to remove the girlfriend's pants, but the defendant let the girl go after she said she had to go to the bathroom. The defendant then removed the victim's clothing, kissed her breasts and placed his finger in her vagina. She asked him a number of times to stop but he would not. He then got on top of her and succeeded in having vaginal intercourse with her. She told him he was hurting her and to stop, but he would not. A short time later, there was a knock at the front door. The defendant released the victim, got dressed and told the victim to get dressed. She went into the bathroom and discovered that she was bleeding from her vagina. Her girlfriend came into the bathroom and the victim told her that the defendant had forced her to have sex. After she arrived home that night, the victim told her sister what had happened, but did not tell her mother because she was embarrassed. In addition to telling her sister and the girlfriend who had been in the apartment with her, the victim also told two other girlfriends about what had happened. About a month later, she told her mother and subsequently reported the assault to the police.

I

The defendant's first and principal claim is that the trial court erred in permitting the prosecution to read into evidence, for substantive purposes, a prior out-of-court statement of the victim. In particular, the defendant claims that the court erred in relying on State v. Whelan, 200 Conn. 743, 513 A.2d 86 (1986), cert. denied, --- U.S. ----, 107 S.Ct. 597 93 L.Ed.2d 598 (1987), for its conclusion that the victim's out-of-court statement was admissible for substantive purposes.

The facts relevant to this claim of error are as follows. At trial, the victim testified regarding the events prior to the actual alleged assault. When asked to describe the particulars of the assault, the victim told the court that she did not want to talk about it any more. When the court attempted to elicit testimony from her, she became agitated and started to cry. The court excused the victim and the jury, and called the victim's advocate to the stand. The advocate testified that the victim was angry, frightened and emotionally upset by the prospect of testifying about the details of the assault before the jury and the defendant. After receiving the advocate's testimony, the court concluded that the victim was under such stress that it was inappropriate to require her to give direct testimony. After recalling the victim and the jury, the prosecution was permitted to read into evidence the victim's out-of-court statement which gave the details of the alleged assault. The victim adopted the statement and testified to the events which followed the alleged assault. The defendant's counsel was then permitted to pursue an unlimited cross-examination of the victim, including examining her on the details of the assault as it was related in her out-of-court statement.

The defendant contends that the holding in State v. Whelan, supra, is limited to the admissibility of out-of-court statements which are inconsistent with the witness' trial testimony and are otherwise shown to be reliable through cross-examination. Although we agree with the defendant that the trial court was mistaken in concluding that the proffered evidence and facts of this case were on "all fours" with Whelan, we cannot, however, agree that the court erred in admitting the proffered out-of-court statement under the principles articulated in that case. In addition, we note that the victim's out-of-court statement, which was read into evidence, was not admissible under the constancy of accusation exception; State v. Ouellette, 190 Conn. 84, 459 A.2d 1005 (1983); C. Tait & J. LaPlante Connecticut Evidence (2d Ed.) § 11.22; nor was it admissible as a prior inconsistent statement admissible for impeachment purposes. State v. Villafane, 171 Conn. 644, 672, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S.Ct. 1137, 51 L.Ed.2d 558 (1977). This case, therefore, presents issues of first impression.

In State v. Whelan, supra, our Supreme Court was asked to determine the admissibility of a prior out-of-court identification for substantive purposes. As in this case, the declarant in Whelan was available and took the stand. He testified, however, that he had no recollection of the assailant and could not or would not vouch for the credibility of his own out-of-court statement which identified the defendant as his assailant. The court then allowed the prior out-of-court identification into evidence for substantive purposes.

In Whelan, the court noted that the reason prior inconsistent out-of-court statements were not generally admissible for substantive purposes was because the "declarant was not (1) under oath and subject to punishment for perjury, (2) in the presence of the trier of fact, or subject to cross-examination" at time the statement was made. Id., 200 Conn. at 749, 513 A.2d 86. These are essentially the policy reasons for excluding all hearsay testimony offered for its truth. These are also the reasons prior consistent statements are generally admissible only when accompanied by an instruction that the testimony be considered solely to evaluate the witness' credibility; State v. Brown, 187 Conn. 602, 609-10, 447 A.2d 734 (1982); and then only after the witness has testified as to the facts in the out-of-court statement.

In rejecting the orthodox view that prior inconsistent statements are not admissible for substantive purposes, the Whelan court reasoned that when a declarant is available for cross-examination, on the prior out-of-court statement, that cross-examination is likely to be meaningful. It is for the jury to determine whether to believe the prior statement or reject it. "Moreover, prior statements are, necessarily, made closer to the event in question, when memories are fresher and when there is less likelihood that the statement is the product of corruption, false suggestion, intimidation or appeals to sympathy.... Quite simply, when the declarant is in court, under oath, and subject to cross-examination before the factfinder concerning both [her] out-of-court and in-court statements, 'the usual dangers of hearsay are largely nonexistent....' California v. Green, 399 U.S. 149, 155, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970)." State v. Whelan, supra, 200 Conn. at 750-51, 513 A.2d 86. A trial is a search for an objective account of the events upon which criminal charges are based. An evidentiary rule which requires the trial court to exclude relevant evidence the reliability of which can be tested by cross-examination serves no purpose. State v. Whelan, supra.

The Whelan court noted that under California v. Green, supra, the use of prior inconsistent statements for substantive purposes does not violate the confrontation clause. State v. Whelan, supra, 751 n. 6, 513 A.2d 86. More recently, the United States Supreme Court concluded that the use of...

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12 cases
  • State v. Johnson
    • United States
    • Connecticut Court of Appeals
    • 7 Junio 1988
    ...confrontation clause is satisfied when defense is given the opportunity to expose infirmities on cross-examination. State v. Yednock, 14 Conn.App. 333, 541 A.2d 887 (1988). We are not persuaded, from the record before us, that the defendant was denied an opportunity to conduct a complete an......
  • State v. Johnson
    • United States
    • Connecticut Court of Appeals
    • 7 Marzo 2017
    ...appears in the record thereafter to reveal the content of the testimony the defendant sought to introduce.18 See State v. Yednock , 14 Conn.App. 333, 345, 541 A.2d 887 (1988). An offer of proof was necessary in the present case because the record reveals neither the purpose of the excluded ......
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    • 6 Enero 2009
    ...find no abuse of discretion in the court's refusal to grant the [party's] motion for a further continuance." See State v. Yednock, 14 Conn.App. 333, 344-45, 541 A.2d 887 (1988) (no abuse of discretion where court refused to grant further continuance after already granting one). Moreover, th......
  • State v. Silver
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    • Connecticut Court of Appeals
    • 15 Febrero 2011
    ...admitted as spontaneous utterances because the victim was not under sufficient stress when he made the call. In State v. Yednock, 14 Conn.App. 333, 345–46, 541 A.2d 887 (1988), the statements of the victim, made one month after the occurrence, were not excited utterances, despite the fact t......
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