State v. Freeney

Berdon, J.,

dissenting. Although I agree with part I of the majority opinion, I disagree with the court’s conclusions that the hypothetical questions asked of the expert on rape trauma syndrome were properly admitted and that the defendant was not entitled to his requested jury instruction on consciousness of guilt.

I

EXPERT TESTIMONY

The majority misreads our decisions in State v. Borrelli, 227 Conn. 153, 629 A.2d 1105 (1993), and State v. Spigarolo, 210 Conn. 359, 556 A.2d 112, cert. denied, 493-U.S. 933, 110 S. Ct. 322,107 L. Ed. 2d 312 (1989). In doing so, it places this court’s seal of approval on testimony that invades an exclusive province of the jury by bolstering the credibility of the complaining witness.

The trial court overruled the defendant’s objection to the expert testimony of psychotherapist Barbara Moynahan, and she was permitted to answer hypothetical questions that tracked the testimony of the complaining witness. Moynahan was directed to assume that the details of the questions were established, and *597then she was asked if each individual reaction of the victim was “consistent with a typical reaction to physical and sexual assault trauma.” Moynahan answered that each individual reaction of the victim as set out in the hypothetical questions was indeed “consistent” with a typical victim reaction.1 While Moynahan never directly testified that the victim in this case was a credible witness, the inevitable effect of her testimony was *598to vouch for the credibility of the victim’s story, and therefore vouch for the credibility of the victim herself.

The court states that admission of this testimony is compelled by our decisions in State v. Borrelli, supra, and State v. Spigarolo, supra. We never went this far in either of those cases. In both cases, we pointed out that experts can only testify in generalities, based on their clinical observations of victims of abuse. In State v. Borrelli, supra, 173, we pointed out that the expert “did not comment, directly or indirectly, on [the victim’s] credibility.” Furthermore, we stated in State v. Spigarolo, supra, 379, that there is a “critical distinction between admissible expert testimony on general or typical behavior patterns of . . . victims and inadmissible testimony directly concerning the particular *599victim’s credibility.” We have not, prior to the present case, upheld, when raised as an issue, expert testimony that related a behavioral syndrome to the specific facts of a prosecution’s case through the use of a hypothetical question.2 See State v. Borrelli, supra, 164-65 (expert “did not apply any scientific test to a hypothetical question posed by the state”). Such testimony inevitably vouches for the credibility of the victim,3 crossing the line between the permissible and the impermissible.

*600The Supreme Court of Arizona drew this important distinction between permissible and impermissible purposes m State v. Moran, 151 Ariz. 378, 380-86, 728 P.2d 248 (1986). In Moran, the court upheld testimony regarding the general characteristics of sexual abuse victims, but rejected testimony that the victim’s behavior was consistent with sexual abuse having occurred. The court first made clear that experts “may not give an opinion of the credibility of a particular witness.” (Emphasis in original.) Id., 385. The court then noted that testimony regarding consistency “is slightly different than direct testimony on the victim’s veracity. However . . . the inference offered the jury is that because this victim’s personality and behavior are consistent with a molest having occurred, the crime must have been committed. . . . This type of particularized testimony permits the expert to indicate how he or she views the credibility of a particular witness. Once the jury has learned the victim’s behavior from the evidence and has heard experts explain why sexual abuse may cause delayed reporting, inconsistency, or recantation, we do not believe the jury needs an expert to explain that the victim’s behavior is consistent or inconsistent with the crime having occurred. ” (Citation omitted; emphasis added.) Id.

Other courts have also drawn the line at general characteristics testimony. In State v. Svihl, 490 N.W.2d 269, 273 (S.D. 1992), the court noted the following: “The expert in this case did not testify as to whether or not in her opinion [the victim] was testifying truthfully. The problem in this specific case is that the State did not limit its questions to characteristics, but solicited responses to the supposed hypothetical questions which invited an opinion on whether or not [the victim] exhibited traits and behaviorism of a sexually abused child. . . . The better practice would be to limit the expert testimony to such traits and charac*601teristics.” The majority upheld the conviction, however, on the basis of harmless error and improperly preserved error. Id., 274. A dissenting opinion found the error to be properly preserved and harmful: “A prosecutor is not to go into the specifics of the facts and relate the rape trauma syndrome to the set of facts before the court. General characteristics testimony, yes. Details related to the scenario at hand, with conclusions, no.” (Henderson, J., dissenting) Id., 275; see also Commonwealth v. Dockham, 405 Mass. 618, 628, 542 N.E. 2d 591 (1989) (upholding expert testimony on general characteristics of children who have been sexually abused where the expert “made no references or comparison to the child witness. See Terrio v. McDonough, 16 Mass. App. Ct. 163,175-76 [1983] [expert testimony about rape trauma syndrome held admissible where expert witness did not testify that victim in case had been raped or that she displayed behavior consistent with syndrome.]”).

Based on the reasoning of these authorities, I believe that the use of a hypothetical question that tracks the evidence in a case is an impermissible use of “social framework” expert testimony. By allowing the expert to relate the facts of the case to the syndrome through the use of hypothetical questions, a court risks that the jury may make the improper inference that the expert’s experience with a large number of victims would lead the expert to believe this victim. By creating the possibility of such an inference, the testimony impermissibly invades the province of the jury. In discussing battered woman’s syndrome, one commentator noted: “If the victim’s behavior, either directly or through the use of a hypothetical, is asserted to be consistent with the behavior of battered women, the jury may well assume that the expert believes that the victim was battered.” J. Schroeder, “Using Battered Woman Syn*602drome Evidence in the Prosecution of a Batterer,” 76 Iowa L. Rev. 553, 580 (1991).

Finally, I note that expert evidence of this type, directly affecting credibility and therefore going to the heart of the jury system, must be cautiously received. We must not allow the expert’s testimony to supplant the fact-finding function of the jury. Accordingly, when requested, specific instructions related directly to the particular expert, in appropriate language, should be given to the jurors, and should include the following: that the expert testimony is merely to aid them; that they are free to accept or reject the testimony; that the expert’s testimony is based on the expert’s observation of a number of victims, serving the limited purpose of indicating that certain patterns of behavior are not uncommon among victims; that the testimony was not provided for the purpose of inferring that the crime charged had occurred; that, even if the jury accepts the testimony of the expert, it need not find that the syndrome has any application to the facts of the case; that ultimately the credibility of the complaining witness must be determined by the jury based solely on the facts of the case as the jury finds them to be.

II

CONSCIOUSNESS OF GUILT

I agree with the defendant that the trial court was obligated to instruct the jury that his flight could have had an innocent explanation because he was on parole and could have been avoiding the police for that reason.

At the outset, it is helpful to review the basis for this jury instruction. I presume it has roots in the biblical admonishment that “[t]he wicked flee, even when no man pursueth; but the righteous are bold as a lion.” Proverbs 28:1 (King James). The instruction is premised on “the inference from guilty conduct to the

*603commission of the guilty deed” but we are cautioned that “there is ample room for [an] erroneous inference . . . .” (Emphasis in original.) 2 J. Wigmore, Evidence (3d Ed. 1940) p. 106; see also Wong Sun v. United States, 371 U.S. 471, 483 n.10, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963) (“[w]e have consistently doubted the probative value in criminal trials of evidence that the accused fled the scene of an actual or supposed crime”). “[I]n many situations, the inference of consciousness of guilt of the particular crime is so uncertain and ambiguous and the evidence so prejudicial that one is forced to wonder whether the evidence is not directed to punishing the ‘wicked’ generally rather than resolving the issue of guilt of the offense charged.” 2 C. McCormick, Evidence (4th Ed. 1992) p. 182. Indeed, a number of jurisdictions have begun to question the use of flight instructions, and some have disapproved of it.41 leave this broader issue for another day because it was not raised at trial nor before this court.

In determining whether to admit and instruct the jury concerning evidence of flight, the trial court must weigh the prejudicial effect of this evidence against its probative value. State v. Burak, 201 Conn. 517, 533, 518 A.2d 639 (1986); State v. Bell, 188 Conn. 406, 412-13, 450 *604A.2d 356 (1982). In reviewing the instruction, it is critical that we distinguish between immediate flight from the crime scene, and flight that is inferred, as in the present case, from the fact that the police were seeking the defendant. See 2 C. McCormick, supra, p. 183. Flight from the scene of the crime—for example, where the victim is shot and the defendant is seen running from the crime scene immediately after the shooting— has a relatively high degree of probative value. On the other hand, flight or concealment from the police long after the crime is committed would generally appear to have little or no probative value. “[W]hen there is no immediacy between the flight and the crime, the court must be certain there is evidence that a defendant knows he is being sought for the specific crime charged and not some other crime or event.” United States v. Howze, 668 F.2d 322, 325 (7th Cir. 1982).

The precise issue raised by the defendant in this case is whether the trial court, in giving the consciousness of guilt instruction, was also required to instruct the jurors that there could have been a reason other than guilt of the crime charged for the alleged flight. In making this determination, we must look at the entire instruction on the issue of consciousness of guilt in the context in which it was given in this case. “It is well established . . . that the individual instructions are not to be judged in artificial isolation from the overall charge. . . . The whole charge must be considered from the standpoint of its effect on the jury in guiding them to the proper verdict . . . .” (Citations omitted; internal quotation marks omitted.) State v. Anderson, 212 Conn. 31, 37, 561 A.2d 897 (1989).

The trial court first instructed the jury that the state has the burden of producing sufficient evidence to prove the defendant’s guilt, and that the evidence includes “not only the testimony of the witnesses and the exhibits which were admitted into evidence, but also any rea*605sonable inferences that [the jury] can draw from the evidence.” Thereafter, the trial court instructed the jury as follows: “Now, the law of our State recognizes a principle known as consciousness of guilt. Certain conduct of a person may be considered by you to show a guilty knowledge or consciousness of guilt. When a person is on trial for a criminal offense it is proper to show that . . . conduct [of that person] subsequent to the alleged criminal offense . . . may fairly [be claimed] to have been influenced by that act. Flight, when unexplained, can indicate consciousness of guilt if the facts and the circumstances support it. Flight may be proven by efforts of the police to locate the defendant, [but] that proof must be supported by either direct or inferential evidence that the defendant knew he was wanted by the police. Evidence that members of the defendant’s family knew he was being sought or that he failed to report to work following the alleged crimes [has] been found sufficient to infer flight by the defendant. The State has offered evidence in this case that the defendant left work suddenly on April 5,1991, shortly after the police had gone to his home with a warrant and had told his wife that he was wanted and that he left work, I think, without punching out. Further, they’ve offered evidence that he did not return to work that night, that he neither went to work as scheduled on April 6th, [nor] did he call in; that on April 7th, 1991, he sent his wife to pick up his check for the first time in his eight month service with that company, and that he did not turn himself in when his supervisor suggested it and that he did not open the door to the police when they came to the house on the morning of April 7th, 1991, at around 10:30 in the morning and announced who they were and knocked on the door. Now, if you find that the defendant did flee or did hide from the police following the commission of the crimes alleged, [then] you may find that such actions tend to *606show a guilty connection with the crimes. In other words, any action of the defendant following the alleged criminal act which you find shows a guilty knowledge influenced by the criminal act itself may be used by you as circumstantial evidence of the defendant’s guilt. That is, if you find that the defendant’s acts or flight show consciousness of guilt, you may use that conclusion as independent evidence of guilt along with the other facts of the case to determine whether he has been proven guilty of the crimes charged.” (Emphasis added.)

The consciousness of guilt charge was followed by a reference to constancy of accusation evidence.5 The trial court then instructed the jury that it should consider all of the evidence, including circumstantial evidence, in determining guilt or innocence.

It is clear that the substance of the trial court’s jury instruction as it pertains to the crime charged is as follows: flight = consciousness of guilt = wrongdoing = guilt of the crime charged. Although the constitutionality of the wording of the particular charge given by the trial court in this case is questionable because it diluted the burden of proving each element of the crime beyond a reasonable doubt, the defendant does not make this claim before us and, accordingly, I do not reach that issue.

I agree with the defendant that, under the circumstances of this case, the trial court was required to instruct the jury that there could be other reasons for the defendant’s flight. The federal courts have adopted the following standard and, at the very least, so should we. “[A]n instruction [on flight as it might relate to consciousness of guilt] may be used only ‘sparsely’ and only if the trial judge accompanies it with an indication of the variety of motives that may account for *607flight.” United States v. Telfaire, 469 F.2d 552, 557 (D.C. Cir. 1972). Basic fairness and due process of law require that the trial court be evenhanded and instruct the jury that there could be other reasons for the defendant’s flight. Furthermore, if an instruction on flight or concealment is to be given, the trial court should “explain to the jury, in appropriate language, that flight does not necessarily reflect feelings of guilt, and that feelings of guilt which are present in many innocent people, do not necessarily reflect actual guilt. This explanation may help the jury to understand and follow the instruction which should then be given, that they are not to presume guilt from flight; that they may, but need not, consider flight as one circumstance tending to show feelings of guilt; and that they may, but need not, consider feelings of guilt as evidence tending to show actual guilt.” Miller v. United States, 320 F.2d 767, 773 (D.C. Cir. 1963). Most importantly, the jury instruction should also make clear that flight or concealment is not sufficient in and of itself to establish guilt. See United States v. Mesa, 660 F.2d 1070, 1077 n.2, reh. denied, 667 F.2d 93 (5th Cir. 1981).

The court relies on State v. Wright, 198 Conn. 273, 502 A.2d 911 (1986), to support its position that the trial court was not required to instruct the jury that there could be another reason for the defendant’s flight. This reliance is clearly misplaced for two reasons. First, in Wright, this court merely stated that the trial court “was not required to enumerate all the possible innocent explanations offered by the defendant.” (Emphasis added.) Id., 281. Although Wright does not give us the benefit of the trial court’s instruction, an examination of the briefs in that case reveals that the court instructed the jury that it should consider any explanation offered by the defendant for his actions, and that evidence of flight is not conclusive and does not raise a presumption of guilt: “It is up to you to determine *608if any evidence of explanation of the flight from the scene has been presented in this case. Also, it is up to you to determine the probative weight, if any, that you give to any explanation of flight, if you find any explanation was presented by the defendant in this matter. However, flight, if shown, is not conclusive nor does it raise a legal presumption of guilt, but it is to be given the weight to which the jury thinks it is entitled under the circumstances shown.” State v. Wright, Conn. Supreme Court Records & Briefs, Nov. Term, 1985, Pt. 4, Defendant’s Brief p. 11, State’s Brief p. 14.6 In the present case, the trial court neither instructed the jury that it could consider other reasons for flight, nor cautioned the jury that evidence of flight is not conclusive and does not raise a presumption of guilt.

Second, and more importantly, is that Wright relies on United States v. Mesa, supra, as its sole authority for holding that an evenhanded instruction is not required. Mesa, however, made clear that the instruction furnished by the trial court “was well balanced.” Id., 1078. The trial court in Mesa instructed the jury, in part, that “[i]n your consideration of the evidence *609of concealment, you should consider that there may be reasons for this which are fully consistent with innocence. These may include embarrassment at being arrested before family or friends. Also, a feeling of guilt does not necessarily reflect actual guilt.”7 Id., 1077-78 n.2.

Ill

The state did not have an overwhelming case against the defendant. Indeed, the state recognized the need *610to bolster the credibility of the complainant, the only witness with firsthand knowledge of the alleged crime. Accordingly, I believe that admission of the hypothetical questions asked of the expert and the failure to instruct the jury that there could have been other reasons for the defendant’s flight were incorrect, harmful and require a new trial.

Therefore, I respectfully dissent.

The following is the relevant portion of Barbara Moynahan’s testimony on direct examination by the state’s attorney.

“Q. Assume that a woman has taken a walk with and had drinks with a casual male acquaintance who turns suddenly violent against that woman, physically violent against that woman without warning. Assume that that acquaintance is physically much larger than the woman, assume that that acquaintance hits and threatens her and issues her orders telling her that she belongs to him, or words to that effect at this point, and she’s to do what he says.

“Would it be consistent with the patterns of behavior associated with physical and sexual assault trauma for the woman to walk down the street, a public street in the company of this man and for her not to call out for help or try to flee?

“A. Yes, it would be very consistent with someone—

“Q. And why would someone behave that way?

“A. Because the threat of continued violence is there based on the fact that she’s in the company of the person who inflicted this abuse upon her and, therefore, that fear and terror is enough to control her behavior.

“Q. And is that kind of behavior seen regularly in victims that fit that hypothetical?

“A. Yes, it’s consistent with them, survival strategies.

“Q. Separate hypothetical now. Again, assume these facts.

“Assume that the woman has been periodically hit and threatened by a physically stronger man for an extended period of time, meaning hours, that she has been forced to display her body in public to strangers, that she’s been sexually assaulted repeatedly and in front of a group of between eight and twelve men and then that she is locked in a small room with no available means of escape, no obvious exit, for several hours while the man is not in the room, but she doesn’t know where he’s gone.

“Would it be consistent with typical reactions to physical and sexual assault trauma for that woman to, first, go to sleep while she was locked in the room?

“A. That would be consistent because she has been subjected to experiences that are outside of the range of usual life experience and, therefore, *598does not have the coping mechanisms to deal with that and would, in order to survive, begin to shut down, and one of the strategies that people resort to when they’re shutting down might be to fall asleep.

“Q. Okay. Would it also be consistent with a typical reaction to physical and sexual assault trauma if she didn’t open a window that was available there and screamed and yelled out the window for help?

“A. That is very consistent and would not be perceived by her to be an option since she had no idea about where the individual was who was violent to her, who had inflicted this trauma.

“Q. Now, I’d like to add some facts to that second hypothetical, the one you’ve just been addressing, additional facts added to what you’ve already heard.

“Assume that the man returns to this room, opens it, orders the woman back out onto a public street and takes her to an area which is within one hundred feet of where the sexual assaults occurred, that the people on the street in that area are a group of male strangers and that he remains no further than twenty feet from the woman at any one time.

“Would it be consistent with typical reactions to physical and sexual assault trauma for the woman to speak with a friend who approached her in that location, a female friend, to appear outwardly normal and to say nothing about the sexual or physical abuse to that friend in that location?

“A. That is very consistent with victim behavior. She could not rely on her friend to rescue her. The milieu in which she was currently involved with was consistent with a hostile environment, a threatening environment and she was not—it would not be unusual for her to not want to take a chance that her attempt at rescue would fail and she would be further victimized.”

In State v. Christiano, 228 Conn. 456, 687 A.2d 382 (1994), we recently upheld the use of hypothetical questions concerning delays by victims in reporting sexual abuse. The defendant in Christiano, however, never objected to these questions, but instead objected to the expert testimony generally on the ground that it was based on child sexual abuse accommodation syndrome. I concurred in Christiano, noting the following: “I merely wish to point out that the defendant did not object to the hypothetical questions posed to the expert witness Sidney Horowitz by the state, and Horowitz repeatedly indicated that his opinion was based upon his personal clinical experience and not upon his observation of the victim.” (Berdon, J., concurring) Id., 475.

Under our precedents, the permissible purpose of social framework testimony is to rebut an impeachment of the victim by the defense that relies on common misconceptions about victims of abuse. Therefore, in State v. Spigarolo, 210 Conn. 359, 556 A.2d 112 (1989), the defense had impeached the credibility of two child sexual abuse victims by cross-examining them on “inconsistencies and incomplete disclosures the children had made to police and others prior to and during the official investigation of the alleged incidents.” Id., 377. “Under these circumstances, we [held] that the trial court did not abuse its discretion in permitting [the expert] to testify that it is not unusual for sexually abused children to give inconsistent or incomplete accounts of the alleged incidents.” (Emphasis added.) Id. We clearly delineated the limited purpose of the testimony. “This variety of expert testimony is admissible because the consequences of the unique trauma experienced by minor victims of sexual abuse are matters beyond the understanding of the average person.” Id., 378. Similarly, the purpose of the battered woman’s syndrome testimony in State v. Borrelli, 227 Conn. 153, 168-71, 629 A.2d 1105 (1993), was to dispel some common misconceptions about how a woman might react if she were abused by a batterer. The expert in that case “did not offer any opinion as to whether [the victim] . . . exhibited the typical behavioral characteristics of a battered woman.” Id., 164.

See, e.g., United States v. Robinson, 475 F.2d 376, 384 (D.C. Cir. 1973) (“[t]he interest of justice is perhaps best served if this matter is reserved for counsel’s argument, with little if any comment by the bench”); People v. Larson, 194 Colo. 338, 342, 572 P.2d 815 (1977) (expressing disfavor with a flight instruction “because it gives undue influence to one item of evidence”); State v. Wrenn, 99 Idaho 506, 508 and n.1, 584 P.2d 1231 (1978) (listing jurisdictions) (“because of the debatable significance of flight as evidence of guilt, an instruction on flight should not ordinarily be given”); State v. Marsh, 392 N.W.2d 132, 133 (Iowa 1986); State v. Stilling, 285 Or. 293, 305, 590 P.2d 1223, cert. denied, 444 U.S. 880, 100 S. Ct. 169, 62 L. Ed. 2d 110 (1979) (“in all future trials instructions on the significance of flight should not be given”); State v. Grant, 275 S.C. 404, 407, 272 S.E. 2d 169 (1980) (listing jurisdictions) (“henceforth ... the judge [should] decline any charge whatsoever on [flight]”); State v. Reed, 25 Wash. App. 46, 50, 604 P.2d 1330 (1979) (while evidence of flight is admissible, it “should not be the subject of an instruction”).

The defendant does not challenge the admission of evidence showing constancy of accusation.

Justice David M. Borden and Professor Leonard Orland have recommended that the trial judge use a balanced instruction when there is another possible explanation for the defendant’s flight: “Flight, when unexplained, tends to prove consciousness of guilt. The flight of a person accused of crime is a circumstance which, when considered together with all the facts of the case, may justify a finding of the defendant’s guilt. However, flight, if shown, is not conclusive. It is to be given the weight to which you, the jury, think it is entitled under the circumstances. Here there was evidence that the defendant knew he was being sought for this charge and fled from the area on the day of his arrest. There is also evidence tending to explain this flight, namely that the defendant was fleeing to escape arrest on other charges pending against him, and not this charge. If you find that he was fleeing from this charge, you may consider it as evidence of his consciousness of guilt; if you find that he was not fleeing from this charge, you should not consider it as evidence of his consciousness of guilt. It is up to you to give the evidence the weight to which you think it is entitled.” (Emphasis added.) 5 D. Borden & L. Orland, Connecticut Practice (1986) § 3.15.

This instruction was preceded by the following: “The intentional concealment of a defendant immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not, of course, sufficient [in and of] itself to establish his.guilt; but it is a fact which, if proved, may be considered along with all other evidence in determining guilt or innocence. Whether or not evidence of concealment shows a consciousness of guilt, and the significance to be attached to any such evidence, are matters exclusively within the province of the jury.” United States v. Mesa, 660 F.2d 1070, 1077 n.2, reh. denied, 667 F.2d 93 (5th Cir. 1981).

The desirability of an evenhanded instruction on flight is related to the defendant’s claim that he should have been allowed to introduce evidence that, upon being arrested, the defendant waived his Miranda rights and admitted that he had struck the victim but denied having kidnapped or prostituted her. The defendant claimed that this evidence, together with the fact that he was on parole, suggested an alternative reason for his flight. The trial court excluded the proffered evidence. Surely, once the state opens the door by introducing flight or concealment evidence for the purposes of showing consciousness of guilt, basic fairness and logic require that the defendant be permitted to introduce evidence showing consciousness of innocence.

Professor Wigmore makes a convincing argument for such evidence as follows: “[I]t is judicially conceded . . . that the inference of consciousness of guilt is a highly dubious one, and that the evidence is never to be emphasized or treated as of much value. If this be so, why should we strain a doubt to admit a dubious inference against the accused, and yet refuse to admit in his favor a scarcely more dubious one? Such an attitude is wholly inconsistent with itself and is out of harmony with the spirit of our law. Let the accused’s whole conduct come in; and whether it tells for consciousness of guilt or for consciousness of innocence, let us take it for what it is worth, remembering that in either case it is open to varying explanations and is not to be emphasized. Let us not deprive an innocent person, falsely accused, of the inference which common sense draws from a consciousness of innocence and its natural manifestations.” 2 J. Wigmore, Evidence (3d Ed. 1940) p. 190.