State v. Evans

Covello, J.,

dissenting. I respectfully disagree with the position adopted by the majority.

It is certainly true that an information is not ordinarily fatally flawed by its failure to set forth with absolute particularity the date and time of the offense alleged. See State v. Stepney, 191 Conn. 233, 242, 464 A.2d 758 (1983); cert. denied, 465 U.S. 1084, 104 S. *540Ct. 1455, 79 L. Ed. 2d 772 (1984). This is especially so in cases involving youthful victims of sexual assaults who may be subconsciously repressing the details of such a traumatic incident or who by reason of their age do not think in terms of dates or time spans.

The fact remains, however, that an accused has a right to be informed of the nature and cause of the accusations against him and the absence of definite allegations may have constitutional implications. See State v. Cates, 202 Conn. 615, 625-26, 522 A.2d 788 (1987). Further, the rules of practice require that the state, upon motion by the defendant, shall disclose the date, time and place of the offense charged. See Practice Book § 832;

The majority resolves the uneasy tension between these competing social and legal interests by simply declaring that the state “does not have a duty . . . to disclose information which the state does not have.” State v. Stepney, supra. Further, “the burdens and difficulties” created by this absence of information are assigned to the defendant without explanation.

I submit that a fairer resolution is achieved by balancing these competing interests on a case-by-case basis by considering the many relevant factors. Both New Jersey and New York have used such a procedure in similar cases. See State in Interest of K.A.W., 104 N. J. 112, 515 A.2d 1217 (1986); People v. Morris, 61 N.Y.2d 290, 461 N.E.2d 1256, 473 N.Y.S. 2d 769 (1984).

Relevant factors in this analysis may include (1) the age, intelligence and. possible infirmities of the victim; (2) whether the crime charged is a single incident offense; (3) the length of time between the alleged offense and the defendant’s arrest; (4) compliance with the rules of practice; (5) whether there is an offer of an alibi defense; (6) the time frame within which the offense is ultimately claimed to have occurred; and (7) the adequacy of the investigatory process.

*541In the present case, the victim was fourteen years old at the time of the alleged assault. He was just three months short of his sixteenth birthday at the time of trial. The offense involved only a single incident and was alleged to have occurred in July, 1984, It was not reported until five months later. Although the original information is undated, it is fairly inferable that the prosecution commenced in early 1985, approximately six months after the alleged offense.

On April 24, 1985, the defendant filed a motion for a bill of particulars pursuant to Practice Book § 830 et seq. requesting the specific date and time of the offense. The state did not comply with the motion until the commencement of trial on February 10, 1986. The defendant then learned for the first time that the state contended that the offense occurred on either July 21, 22, 28 or 29, 1984.

On February 13, 1986, the state filed a motion for disclosure of the names of alibi witnesses pursuant to Practice Book § 763. In stark contrast to the state’s nine and one-half months delay in answering the defendant’s motion for a bill of particulars, the defendant responded the very next day with the names of these alibi witnesses, annexing sworn affidavits containing the content of their testimony. The affidavits placed the defendant elsewhere on three of the four days in issue.

The alleged victim here was a teenager, not a preschooler with an undeveloped sense of time. He had been in counseling for alcohol abuse and, for unknown reasons, failed to report the alleged offense for four and one-half months. The state, when asked for a bill of particulars, inexplicably and indefensibly sat on the request for nine and one-half months, thereby removing even further the victim’s apparently limited *542recollection from the time of the alleged offense. We can only speculate as to what he might have been able to remember if he had been promptly asked.

Having weighed all of these factors, the court below reached the correct result in dismissing the information. I would find no error.