State v. Vumback

FLYNN, J.,

dissenting. I respectfully dissent and would reverse the conviction and order a new trial because I believe that a person accused of a crime is entitled under our state and federal constitutions to the date or approximate dates within which the accused is said to have committed a crime if that information is known to the child victim and thus available to the state. U.S. Const., amend. VI, amend. XIV; Conn. Const., art. I, § 8. While we recognized in State v. Saraceno, 15 Conn. App. 222, 237, 545 A.2d 1116, cert. denied, 209 Conn. 823, 824, 552 A.2d 431, 432 (1988), that child *333victims may have difficulty recalling dates of sexual assaults, we did not relieve the prosecution of the duty of asking such a victim what she recalls. It is clear from this victim’s testimony that she was never asked to pinpoint the dates of her assaults until her cross-examination and when asked was able to pinpoint the month and year in which she said they began. The prejudice to this defendant was obvious. He was required to defend against an unparticularized information, which would permit a conviction for occurrences within a six year time period, when a narrower time frame than that provided in the information was available. See State v. Blasius, 211 Conn. 455, 461, 559 A.2d 1116 (1989); State v. Stepney, 191 Conn. 233, 242, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984).

If the state did not possess the information, as it claims, it is because it never asked the child victim for it. It is one thing to hold, as did our Supreme Court in State v. Stepney, supra, 191 Conn. 241-42, that a seven hour time frame as to when the murder victim died was reasonable where a more limited and precise time frame could not be determined by the state.1 It is quite another to burden a defendant with defending against a six year time period, as has happened here, when a more particular and limited time frame could have been alleged. If a six year time frame is not a burden of “sufficient magnitude” prejudicing the defendant’s ability to present a defense, it is unlikely that there will ever be one.

The Stepney court held that even if the state could have narrowed the seven hour time frame during which the Stepney victim’s murder occurred, the burden of defending against an information alleging that the murder occurred within a seven hour time frame was not of “sufficient magnitude to prejudice his ability to present an adequate defense.” State v. Stepney, supra, 191 Conn. 242.