State v. Battle

Page 1288

667 A.2d 1288

39 Conn.App. 742

STATE of Connecticut v. Tommy BATTLE.

No. 13256.

Appellate Court of Connecticut.

Argued Sept. 18, 1995.

Decided Nov. 28, 1995.

Elizabeth M. Inkster, Assistant Public Defender, for appellant (defendant).

Nancy L. Gillespie, Deputy Assistant State's Attorney, with whom, on the brief, were Michael Dearington, State's Attorney, David P. Gold, Supervisory Assistant State's Attorney, and Dennis J. O'Connell, Legal Intern, for appellee (state).

Before DUPONT, C.J., and FOTI and FREDERICK A. FREEDMAN, JJ.

FREDERICK A. FREEDMAN, Judge.

The defendant appeals from a judgment of conviction, following a jury trial, of sexual assault in the first degree in violation of General Statutes (Rev. to 1987) § 53a-70, ¹ sexual assault in the second degree in violation of General Statutes (Rev. to 1987) § 53a-71(a)(1), ² sexual assault in the third degree in violation of General Statutes § 53a-72a(a)(1) ³ and risk of injury to a child in violation of General Statutes § 53-21. ⁴ On appeal, the defendant claims that the trial court improperly (1) refused to give a "missing witness" instruction regarding the state's failure to call a certain witness and (2) denied the defendant's motion to exclude evidence under the constancy of accusation doctrine. The defendant also argues that his convictions of sexual assault in the first degree and sexual assault in the second degree violated his constitutional right against double jeopardy. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 1988, the victim, ⁵ then age eleven, lived with her mother, three brothers, two sisters, the defendant and occasionally the defendant's son. The defendant is the victim's great uncle. The defendant rented a portion of his apartment to the victim's mother and her family because she was having difficulty finding an apartment at that time.

The defendant began sexually molesting the victim approximately two months after she and her family moved in with him. This behavior included the defendant's rubbing his body against the victim's body and pulling the victim toward him despite her struggles to break free. On one occasion, the defendant walked into the bathroom when the victim was in the shower, pulled back the shower curtain and, despite the victim's protests, touched her breasts. On another occasion, the defendant went to the victim's room while she was sleeping, pulled down her shorts and underwear, forced her legs apart and put his mouth and tongue on her vagina. On another occasion, the defendant again removed the victim's underwear, forced her legs apart, and penetrated her vagina both with his finger and his penis.

The victim and her family lived with the defendant until a fire in 1989 forced them to seek emergency housing elsewhere. Approximately two years after the incidents with the defendant, when the victim was thirteen years old, she had her first boyfriend. The victim's mother decided to take her to the Hill Health Center to obtain birth control pills for her. At this point, the victim recounted her allegations of abuse by the defendant, first to her mother's boyfriend and, on the next day, to a friend of hers. When the victim went to the Hill Health Center, she told the nurse who treated her about the abuse.

Additional facts will be set forth where relevant to a specific claim made by the defendant.

I

The defendant first argues that the trial court improperly refused to instruct the jury that it could draw an adverse inference from the state's failure to call the boyfriend of the victim's mother as a witness. The boyfriend was the first adult the victim told of the assaults by the defendant, which had occurred approximately two years previously. ⁶ The state argues that the defendant did not satisfy his burden of showing that the state would naturally produce the boyfriend as a witness. We agree with the state because any testimony given by the boyfriend would have been largely cumulative.

"The missing witness rule was stated in Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 [39 Conn.App. 746] 1960). That rule provides that [t]he failure of a party to produce a witness who is in his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party's cause.... Two requirements must be fulfilled before a party is entitled to a Secondino charge: the witness must be available, and he must be a witness whom the party would naturally produce." (Citations omitted, internal quotation marks omitted.) State v. Fleming, 36 Conn.App. 556, 568, 651 A.2d 1341, cert. denied, 233 Conn. 913, 659 A.2d 186 (1995). "A prospective witness whose testimony would be comparatively unimportant, cumulative or inferior to what has been offered, should be dispensed with on the grounds of expense and inconvenience, without the need for an adverse inference charge." State v. Williams, 20 Conn.App. 263, 266, 565 A.2d 1365 (1989). "Whether an absent witness has superior or peculiar information and whether an adverse inference can be drawn is a question of fact for the trier.... This court cannot reverse or modify the trial court's determinations of fact unless they are clearly erroneous." (Citation omitted.) Id. On the basis of the record before us, we cannot say that the trial court's decision not to give an adverse inference charge to the jury was clearly erroneous.

As stated previously, the boyfriend of the victim's mother was the first adult the victim told about the abuse by the defendant. The victim testified that she and her mother's boyfriend "were close" and that they "could talk about anything and [she] would always come to him for a problem." Although the boyfriend was not called as a witness at trial, the state produced numerous other constancy of accusation witnesses. ⁷ Specifically, the victim testified that the day after she told her mother's boyfriend what had happened, she told a friend. The friend testified that, in the summer of 1990, she had a conversation with the victim in which the victim told her that the defendant had sex with the victim when the defendant was babysitting the victim.

A family and pediatric nurse practitioner who worked at the Hill Health Center testified that she saw the victim on July 19, 1990, in connection with the victim's appointment to obtain birth control pills. She testified that the victim told her during the appointment that she had been sexually abused by a great uncle while her family was living in his home. The victim told the nurse that she had had sexual intercourse with the defendant approximately twelve times. ⁸ The nurse recalled the victim's saying that she did not tell her mother of the abuse by the defendant while it was occurring because the defendant had threatened to throw the family out of the house if she did.

The victim's mother testified that she first learned of the victim's accusations from her boyfriend and another friend before she took the victim to the Hill Health Center. The victim eventually discussed the abuse with her mother. The victim's mother also testified that she told health care workers that the victim did not always tell the truth.

Detective Peter J. Marone, Jr., testified that on October 18, 1990, he was employed in the youth division of the New Haven police department and conducted an investigation into a complaint made by the victim. On that date, Marone interviewed the victim at her home, and the victim described to Marone the acts perpetrated on her by the defendant. The victim's mother, her mother's boyfriend, and some of the victim's siblings were present at the interview. The victim acted "embarrassed and shy" during this interview. The victim told Marone that the defendant had threatened to throw her family out of the house if she told anyone what he was doing to her. On October 22, 1990, the victim gave a formal tape-recorded statement to Marone at the New Haven police station, which was played for the jury. Approximately one month after the formal statement was made, the boyfriend of the victim's mother accompanied the victim to the police station so that she could review and sign her formal tape-recorded statement.

A social worker with the Coordinating Council for Children in Crisis testified that on October 25, 1990, the New Haven police department referred the victim's case to her. The social worker conducted a tape-recorded interview with the victim concerning her accusations of the defendant's actions. Several times during the interview, the victim became upset while recounting the sexual abuse. The tape was played for the jury.

The victim had told her cousin about the abuse while it was occurring. ⁹ The cousin, who was twelve at the time that the victim first told her of the sexual abuse, testified that she did not remember exactly what the victim had told her, but knew the victim had told her the defendant was "messing with her." The cousin also remembered the victim's asking her not to tell anyone because the defendant had threatened to throw them out of the house. Subsequently, around the time that the victim's mother was going to take the victim to the Hill Health Center, the victim told her cousin that the defendant had had sexual intercourse and oral sex with her and that, on one occasion, one of her younger sisters stood in the doorway while this occurred.

Finally, the court read a stipulation of counsel to the jury regarding what a caseworker for the department of children and youth services (DCYS) would have testified to if she had been called as a witness. According to the stipulation, after receiving the referral from the Hill Health Center, the caseworker contacted the victim's mother, who reported that the victim "tells stories sometimes" but that she had no reason not to believe the accusations regarding the defendant. When the caseworker...