PER CURIAM.
The defendant, Verle Robinson, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the third degree in violation of General Statutes § 53a-72a (a)(1)(A), and two counts of risk of injury to a child in violation of General Statutes § 53-21(a)(1) and (2). On appeal, the defendant claims that his right of confrontation under the sixth amendment to the United States constitution was violated when (1) a state's witness gave certain testimony under the constancy of accusation doctrine and (2) the trial court improperly excluded the testimony of a defense witness. We affirm the judgment of the court.
The following facts, which the jury reasonably could have found, and procedural history are relevant to this appeal. In
Shortly after the assault occurred, J sent a text message to S explaining what had happened and then went to the couch and woke S up to tell her in person. Thereafter, S telephoned her aunt, M, and told her what had happened. J then spoke with M and told her what had happened. At trial and after J had testified, the state called M as a witness under the constancy of accusation doctrine, and, in pertinent part, she gave the following testimony:
"[The Prosecutor]: Did you receive a telephone call from [S] back in July of 2007?
"[M]: Yes I did.
"[The Prosecutor]: Do you recall the particular date by any chance?
"[M]: Ah, I think it was on a Saturday, to the best of my knowledge.
"[The Prosecutor]: When you received the call from [S], what was her demeanor, what did she sound like on the phone?
"[M]: She was crying hysterically.
"[The Prosecutor]: Do you know why she was crying hysterically?
[M]: She was crying hysterically because [J] had text[ed] her that [S's] father had touched her."
After the state rested, the defendant called both S and H as witnesses. H testified that after the incident, J wrote her once over the internet on the social web site Myspace.com (MySpace). The defendant's counsel then asked what J had written, and the state objected to such testimony as hearsay. The defendant's counsel argued that the statement was admissible as a statement by a party opponent. See Conn.Code Evid. § 8-3(1). The court, however, concluded that J was not a party to the case and, consequently, determined that the testimony was inadmissible hearsay. After he rested his case, the defendant was found guilty by the jury, and the court rendered judgment in accordance with the jury's verdict. The defendant was sentenced to a total effective
The defendant first claims that his right of confrontation under the sixth amendment of the United States constitution was violated when M was permitted to testify under the constancy of accusation doctrine. The defendant concedes that he did not object to M's testimony at trial and now seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We conclude that the defendant's claim fails under the second prong of Golding.
"In Connecticut, it is well established that the constancy of accusation doctrine does not violate a defendant's sixth amendment right to confrontation." (Internal quotation marks omitted.) State v. Thompson, 71 Conn.App. 8, 13, 799 A.2d 1126 (2002). Recognizing this well established principle, the defendant acknowledges that M's testimony with respect to her conversation with J was not a violation of his right of confrontation because J previously had testified at trial and was subjected to cross-examination. He contends, however, that his right of confrontation was violated when M testified to statements made to her by S relating what J told S after the assault. The defendant argues that, although S later testified at trial, his right of confrontation was violated because S testified as a defense witness, and, thus, he was unable to cross-examine her. The defendant's argument is misguided.
The confrontation clause of the sixth amendment to the United States constitution guarantees a criminal defendant the right "to be confronted with the witnesses against him. . . ." U.S. Const., amend. VI. "A significant aspect of the right of confrontation is the cross-examination of adverse witnesses to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the [witnesses]." (Emphasis added; internal quotation marks omitted.) State v. Monteeth, 208 Conn. 202, 209, 544 A.2d 1199 (1988). The state did not call S as a witness, and when she eventually testified for the defendant, she gave testimony favorable to him. Although the defendant was unable to "cross-examine" S because she was not an adverse witness, his counsel did ask S about the telephone call she made to M after the assault. Thus, S was available to explain the circumstances of that telephone call. "The [confrontation] [c]lause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it." (Internal quotation marks omitted.) State v. Pierre, 277 Conn. 42, 78, 890 A.2d 474, cert. denied, 547 U.S. 1197, 126 S.Ct. 2873, 165 L.Ed.2d 904 (2006). Under these circumstances, the defendant's right of confrontation was
The defendant next claims that his sixth amendment right of confrontation was violated when the trial court excluded H from testifying to an out-of-court statement that J allegedly made to H. Specifically, the defendant asserts that the right to offer into evidence the prior inconsistent statements of a prosecution witness is guaranteed by the sixth amendment right of confrontation, and he argues that the court violated his right of confrontation when it prevented H from testifying to the statement J allegedly made to H through the social web site MySpace. The defendant concedes, as he must, that this claim was not preserved at trial and seeks review by this court pursuant to State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823. We conclude that the defendant's claim fails under Golding's first prong.
As a preliminary matter, we note that the defendant's claim is more aptly characterized as a claim involving his sixth amendment right to present a defense.
The defendant claims that the testimony he sought to elicit from H was admissible because it was a prior inconsistent statement of J., the victim. The record before us, however, does not contain the content of the statement. Without the content of the statement, we are unable to determine if the statement was properly excluded as hearsay or if, as the defendant claims, its preclusion stripped him of his constitutional right to present a defense. See State v. Smith, 219 Conn. 160, 164, 592 A.2d 382
The judgment is affirmed.