State v. Daniel W. E. ( 2016 )

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STATE v. DANIEL W. E.—CONCURRENCE
ESPINOSA, J., concurring. Because I agree with the
majority that the judgment of conviction of the defen-
dant, Daniel W. E., should be affirmed, I concur in the
result. I also agree with and join part I of the majority
opinion. I do not agree, however, with part II of the
majority opinion, in which the majority sets forth its
modification of the constancy of accusation doctrine.
Under the majority’s rule, although a victim is allowed
to testify in a sexual assault case on direct examination
that he or she told third parties—the constancy wit-
nesses—about such an assault prior to officially
reporting the assault, the testimony of the constancy
witnesses, corroborating the victim’s testimony that the
victim made a complaint to them prior to the official
report of the assault, would be admissible under the
constancy of accusation doctrine only if the defendant
impeaches the victim on the basis of any delay in
reporting. This court’s last major modification of the
doctrine was in State v. Troupe, 237 Conn. 284, 677
A.2d 917 (1996). Because there is no evidence that the
modification that this court made to the doctrine in
Troupe has proven insufficient to protect defendants,
I disagree that the doctrine needs further modification.
Preliminarily, I note my agreement with the majority
and ‘‘the overwhelming majority of other jurisdictions
that the generally applicable rules of evidence are insuf-
ficient to remedy potential juror bias against victims
who delay in reporting a sexual assault.’’ (Emphasis
added.) Given that starting point, it is significant that
the majority concludes, correctly, I believe, that the
trial court in the present case properly instructed the
jury on the use of constancy of accusation evidence
because those instructions ‘‘accurately portrayed the
law and did not mislead the jury’’ or ‘‘cause the defen-
dant undue prejudice.’’ Finally, I agree with the majori-
ty’s identification of the competing interests of victims
and defendants, interests that this court balanced
appropriately when it modified the constancy of accusa-
tion doctrine in State v. Troupe, supra, 237 Conn. 303–
305. That is, victims of sexual assault have an interest
in the remedy provided by the constancy of accusation
doctrine, which allows for the introduction of evidence
for the limited purpose of offsetting the unwarranted
negative inference drawn by jurors from a victim’s delay
in reporting the assault to authorities. As the majority
observes, defendants have an interest in being pro-
tected against the ‘‘potential prejudice . . . caused by
the testimony of multiple constancy witnesses.’’
(Emphasis added.) I observe that this is the only poten-
tial prejudice to defendants identified by the majority.
When this court modified the constancy of accusation
doctrine in Troupe, it recognized that doing so impli-
cated the doctrine of stare decisis. State v. Troupe,
supra, 237 Conn. 303. The court explained, however,
that ‘‘[e]xperience can and often does demonstrate that
a rule, once believed sound, needs modification to serve
justice better.’’ (Internal quotation marks omitted.) Id.
The court in Troupe explained why the old rule needed
to be modified. Id. When Troupe was decided, Connecti-
cut was one of only five states that permitted testimony
regarding the details of a sexual assault victim’s prior
complaint, even when that testimony would not have
been admissible under the general rules of evidence.
Id., 299–300. At the time, Connecticut’s constancy of
accusation doctrine allowed the repetition of the details
of the complaint by the constancy witnesses, which
was the aspect of the Connecticut rule that was out of
line with the majority of jurisdictions. Allowing those
details to be repeated, the court explained, went further
than necessary to protect victims who have delayed
reporting a sexual assault from the jurors’ subconscious
biases against them. Id., 303. A more reasonable accom-
modation of the interests of victims and defendants,
the court reasoned, was to restrict constancy evidence
to the fact and timing of the victim’s complaint, with
only the details necessary to associate the victim’s com-
plaint with the pending charge. Id., 304. With the modifi-
cation of the doctrine in Troupe, the court brought
Connecticut in line with the majority of jurisdictions.
By contrast, in today’s decision, the majority does
not mention stare decisis or offer any explanation as to
why the constancy rule, as modified by Troupe, ‘‘ ‘needs
modification to serve justice better.’ ’’ Id., 303. More-
over, the majority’s rule now sets Connecticut apart
from the majority of jurisdictions, which—as observed
by this court in Troupe—recognize the continued need
for constancy of accusation testimony. Id., 299. Specifi-
cally, at the time that Troupe was decided, the only
state that did not allow the prosecution to introduce
evidence of a sexual assault victim’s complaint in its
case-in-chief was California. Id. The majority has uncov-
ered only two states that have reexamined their rules
on the admission of constancy of accusation testimony
since Troupe, and of those two jurisdictions, only one
state has abandoned the doctrine. See Commonwealth
v. King, 445 Mass. 217, 242–44, 834 N.E.2d 1175 (2005)
(adopting first complaint doctrine), cert. denied, 546
U.S. 1216, 126 S. Ct. 1433, 164 L. Ed. 2d 136 (2006);
State v. Madigan, 122 A.3d 517, 529–30 (Vt. 2015) (aban-
doning ‘‘ ‘fresh-complaint rule’ ’’ or constancy of accusa-
tion doctrine as independent evidentiary doctrine).
Accordingly, all but two jurisdictions—California and
Vermont—continue to rely on some form of the doctrine
to counteract unwarranted biases against victims of
sexual assault. Thus, not only does the majority fail to
offer any explanation for its decision to modify the
constancy of accusation doctrine, but in doing so, the
majority goes against the clear weight of authority.
The present case illustrates that the trial courts, in
the proper exercise of their discretion, are in the best
position to balance the competing interests of victims
and defendants. The majority specifically recognizes
that the trial court properly applied Troupe, and that
the defendant suffered no prejudice from the introduc-
tion of constancy testimony. Had the majority followed
the logic of its own analysis, it would have left Troupe
unchanged and the constancy of accusation doctrine
intact. Instead, the majority makes the classic error of
attempting to fix something that is not broken. The
result is a rule that fails to recognize and accord proper
deference to the role performed by trial courts pursuant
to Troupe, a role that they were performing properly.
It is the trial judge, who presides over a case as it
unfolds, who is in the best position to exercise discre-
tion in order to balance the interests implicated by the
introduction of evidence. In recognition of the impor-
tance of that role, this court stated in Troupe that ‘‘[i]n
determining whether to permit [constancy of accusa-
tion] testimony, the trial court must balance the proba-
tive value of the evidence against any prejudice to the
defendant.’’ State v. Troupe, supra, 237 Conn. 305.
Rather than recognizing that the task of weighing the
probative value of the testimony of constancy witnesses
against its prejudicial impact is a function within the
particular expertise of the trial courts, the majority
takes that discretion from the courts and hands it over
to defendants. By reassigning the discretion of the trial
courts to the group most ill-suited to balance the relative
interests—defendants—the majority also upsets the
careful balance that had been achieved by Troupe. In
doing so, the majority rushes headlong into one of the
dangers recognized by Troupe—allowing defendants,
rather than the trial court, to control whether sexual
assault victims should have to ‘‘suffer whenever mem-
bers of the jury [hold] prejudices that [victims] who do
not complain have not really been [sexually assaulted].’’
(Internal quotation marks omitted.) Id., 302. By taking
the discretion away from the neutral trial court, and
giving exclusive control over the admissibility of the
testimony of the constancy witnesses to the person who
most benefits from the unwarranted societal prejudices
against sexual assault victims, and who is guaranteed
to make choices that capitalize on those societal preju-
dices, the majority fails to achieve its stated purpose
of balancing the interests of victims and defendants.
I also observe that the majority’s rule is not even
remotely connected to the claimed purpose of
addressing ‘‘potential prejudice to defendants caused
by the testimony of multiple constancy witnesses.’’
Instead, the majority’s rule yields an all or nothing
result. It precludes the introduction of any testimony
from constancy witnesses whenever the defendant
states that he or she will not rely expressly on the delay
in reporting to impeach the credibility of the victim. If
the defendant elects to rely on the delay, however, the
trial court may exercise its discretion to allow multiple
constancy of accusation witnesses. If the majority had
wished to actually address the defendant’s claimed prej-
udice, a much more logical choice would have been
to adopt the first complaint doctrine, as the Supreme
Judicial Court of Massachusetts has done. See Com-
monwealth v. King, supra, 445 Mass. 242–44. That doc-
trine allows constancy testimony, but limits the
testimony to the first prior complaint of the victim. I am
not advocating that this court adopt the first complaint
doctrine. As I have stated in this concurring opinion, I
believe that the trial courts have been applying Troupe
in a manner that achieves the proper and fair balance
between the interests of victims and defendants. I
merely observe that if the majority’s aim is to address
defendants’ claimed prejudice due to constancy evi-
dence from multiple witnesses, the first complaint doc-
trine would address that issue.
Accordingly, because I do not agree that Troupe
should be modified, but agree with the result in the
present case, I respectfully concur.