STATE v. MAKEE R., SC 18494

Judicial District of Fairfield at Bridgeport


      Criminal; Jury Instructions; Whether Preliminary Instruction to Jury Regarding Post Trial Sentencing Procedure was Improper and, if so, Whether the Error was Harmless; Whether Final Instructions Regarding the Child-Victim's Credibility were Proper.  The defendant, a minor, was charged with sexually assaulting his young niece, who, from January, 2003, to August, 2005, was a frequent guest in the defendant's home.  In its preliminary instructions to the venire panels, the trial court described the procedure for sentencing should the jury return a verdict of guilt.  At his trial, the defendant sought to undermine the victim's credibility and to establish that the sexual assault could not have taken place because he was never alone with the victim.  During the final charge to the jury, the trial court instructed the jury that while a very young child's "capacity to recall specifics and the state's concomitant ability to provide exactitude in an information are very limited," it "would not impose a degree of certitude as to date, time and place that will render prosecutions of those who sexually abuse children impossible."  Upon being convicted as charged, the defendant appealed to the Appellate Court (117 Conn. App. 191), claiming that he was denied a fair trial because the trial court's jury instructions improperly invaded the province of the fact finder, bolstered the credibility of the victim, diluted the state's burden of proof and prejudiced his case.  Among other things, he objected to the preliminary instruction regarding the sentencing procedure, and he took issue with the part of the final charge that instructed the jury on the testimony of young children.  The Appellate Court affirmed the judgment.  With respect to the claim concerning the preliminary instructions, the Appellate Court agreed that sentencing information is irrelevant to the jury's task because it invites jurors to consider matters that are not within their province and creates a strong possibility of confusion.  The court, however, determined that the jury was fully and properly instructed at the critical time and that the preliminary instructions did not affect the overall fairness and integrity of the proceeding.  As to the final charge, the Appellate Court concluded that the instructions, read as a whole, did not clearly deprive the defendant of his constitutional rights or deprive him of a fair trial.  It found that the instructions adequately explained the charges the defendant faced, the burden of proof, the presumption of innocence and the jury's role as fact finder.  It further found that the trial court advised the jury to consider a number of factors in determining credibility and explained that expert testimony is not binding.  In addition, it determined that the final charge did not misstate the law because the general rule in Connecticut is that time is not an essential ingredient of the crime of sexual assault.  The Supreme Court will now decide whether the Appellate Court properly concluded that (1) the preliminary instruction regarding post trial sentencing procedures was improper but nonetheless did not affect the fairness of the trial and (2) the final instructions regarding the child-victim's credibility did not unfairly bolster the credibility of the victim, nor dilute the state's burden of proof, nor prejudice the defendant.