• Connecticut Appellate Court
  • AC 34009
  • Sep 03 2013 (Date Decided)
  • DiPentima, C.J.

The introduction of constancy of accusation testimony for the purposes of corroborating the fact of a victim's complaint does not violate the constitutional fair trial rights of defendants in sexual assault cases. Following a jury trial, Roberto Rivera was convicted on counts of sexual assault in the second degree and risk of injury to a child in violation of C.G.S. §53-21(a)(2). The charges related to allegations made by a child born in 1993 who first met the defendant in an after school basketball program in 2004 or 2005. Rivera appealed, claiming that the trial court's instruction on evidence admitted under the constancy of accusation exception to the hearsay rule violated his due process rights. The Appellate Court affirmed the judgment. The defendant's argument was foreclosed by the 2009 Connecticut Appellate Court case of State v. Antwon W. The panel declined to revisit the issue, noting, as explained in the 2010 case of Diaz v. Commissioner of Correction "that one panel should not, on its own, [overrule] the ruling of a previous panel. The [overruling] may be accomplished only if the appeal is heard en banc." Here, the trial court allowed the victim's father to testify pursuant to the constancy of accusation exception to the hearsay rule regarding his son's statements. The defendant did not submit a specific request to charge or object to the trial court's instructions on the use of such testimony when the instruction was given. The defendant claimed on appeal that the instruction violated his due process rights and encouraged the jury to use the father's testimony to bolster the victim's credibility. The defendant sought review of his unpreserved claim pursuant to the 1989 Connecticut Supreme Court case of State v. Golding. However, the matter did not rise to the level of constitutional error to warrant Golding review. The jury was instructed, as in Antwon W., on the appropriate use of constancy of accusation evidence and its relationship to the victim's testimony. The admissibility of constancy of accusation testimony in Connecticut is well established.