State v. Ali

Callahan, J.,

dissenting in part II of the majority opinion. I agree with the majority that the trial court, in response to the defendant’s requests, should have instructed the jury that it could use the victim’s prior statements, which the state had elicited as constancy of accusation evidence, to impeach the victim’s credibility if it found her statements to be inconsistent with each other or with her trial testimony. It seems to me, however, that a necessary unspoken corollary of the instruction that the trial court did give, i.e., that the jury could use the victim’s prior consistent statements to corroborate her testimony, is the proposition that the statements, if found inconsistent, necessarily would detract from that testimony. We would have to credit the jurors with very little in the way of common sense to conclude that unless they explicitly were told to do so, they would not consider any inconsistencies in the victim’s statements in assessing her credibility.

The majority, as a basis for its decision, adverts to the trial court’s instruction that the “sole purpose” for the admission of the victim’s prior statements was to corroborate her testimony, thereby ruling out the use *436of her prior statements for impeachment purposes. The instruction, however, clearly was given in a context that informed the jury that it simply could not use constancy of accusation testimony as substantive evidence.1 The instruction reasonably understood would not have conveyed the idea, or created the impression, that any prior inconsistent statements of the victim had to be ignored in determining the credibility of her trial testimony.

In fact, as part of its constancy of accusation instruction the trial court stated: “You may only use her out-of-court statements for the purpose of determining or helping you to determine the credibility of her in-court testimony regarding the events of July 9, 1991.” (Emphasis added.) It is not reasonable to conclude that, given this instruction, if the jury found the prior statements of the victim to be inconsistent, it simply would disregard the inconsistencies. Rather, consistent with the court’s instruction, the inconsistencies inevitably would factor into the jury’s determination of the victim’s credibility. Moreover, in his final argument to the jury, the defendant diluted any possible restrictive implications of the court’s charge by emphasizing the inconsistencies in the victim’s statements and arguing to the jury that because of those inconsistencies, she should not be believed.

Because the impropriety claimed was not constitutional, the burden was upon the defendant to demonstrate its harmfulness. See State v. Rinaldi, 220 Conn. 345, 357, 599 A.2d 1 (1991); State v. Flanders, 214 Conn. 493, 502, 572 A.2d 983, cert. denied, 498 U.S. 901, 111 S. Ct. 260, 112 L. Ed. 2d 217 (1990); State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980). I believe he has failed to carry that burden.

Indeed, the defendant’s own request to charge on constancy of accusation states in relevant part: “This evidence is admitted solely to corroborate her testimony in court.” (Emphasis added.)