31 Conn. App. 497 | Conn. App. Ct. | 1993
The defendant appeals from a judgment of conviction, rendered after a jury trial, of sexual assault in a spousal or cohabiting relationship in violation of General Statutes § 53a-70b, unlawful restraint in the second degree in violation of General Statutes § 53a-96, reckless endangerment in the second degree in violation of General Statutes § 53a-64, and threatening in violation of General Statutes § 53a-62.
The defendant claims that (1) the evidence was insufficient to sustain the guilty verdicts, (2) General Statutes § 53a-70b, sexual assault in a spousal or cohabiting relationship, is unconstitutionally vague, (3) the prosecutor’s summation amounted to prosecutorial misconduct, (4) he was deprived of his right to effective assistance of counsel at trial, (5) the trial court improperly admitted expert testimony regarding battered women’s syndrome, and (6) the trial court improperly admitted the testimony of the victim’s father because it was unduly prejudicial. We affirm the judgment of the trial court.
One such incident occurred when the victim and her daughters were boiling eggs for Easter and the defendant came home and started harassing the children. The victim defended the children and the defendant ordered them to leave but would not let them take anything with them, including the checkbook. When the defendant placed the victim’s neck in a choke hold, she bit him on the arm, told the girls to go to the car, took the baby and left the condominium. The victim and her children stayed at a hotel for a week and then stayed at her aunt’s house. During this time, the victim contacted an outreach advocate.
The charges stem from two incidents that occurred on September 21 and October 3, 1990. On September 21, the victim was sitting in the living room watching television when the defendant returned home from a stag party between 10 and 11 p.m. She was annoyed because she had not known that the defendant would be attending a stag party that evening. After an argument, the defendant left the condominium and returned an hour later. The defendant made sexual advances, and, when the victim refused to remove her clothing, he threw her to the floor and threatened to break her legs. The victim resisted in vain as the defendant forced her to have sexual intercourse with him. Their older daughter was in the process of going downstairs to get a glass of water when she saw the defendant on top of her mother, hitting her and pulling her clothes off. The victim and the three children remained in the condominium after this incident. The victim testified that she did not report the incident to the police immediately because she was afraid the defendant would kill her and because she was ashamed. The following Monday, the older daughter came home from school with a note from the school social worker who wanted to meet with the victim because the daughter had written in her creative writing journal, “my daddy beats my mommy up.” The victim met with the school social worker that Friday.
Subsequently, the defendant went to the girls’ room and woke them up, asking who their mother had been seeing. The older daughter replied that her mother had spoken to the school counselor, referring to the school social worker. The defendant, still angry, returned to the master bedroom and pulled the victim onto the bed. She submitted to his sexual advances and had intercourse with him to avoid any further conflict and to avoid disturbing the children further. The following day she filed a complaint with Officer Patrick Buden of the Plainville police department.
The defendant was arrested on October 12,1990. He was charged with eight counts and acquitted of four.
The defendant claims that the state’s evidence was insufficient to sustain his convictions. We do not reach the merits of this claim because the defendant failed to preserve it.
The trial court denied the defendant’s motion for judgment of acquittal made at the completion of the state’s case. Practice Book § 864. The defendant presented a defense but failed to move for a judgment of acquittal a second time.
II
The defendant next claims that General Statutes § 53a-70b is unconstitutional because it is vague as applied to the facts of this case. The defendant maintains that the statute’s definition of “use of force” would permit a conviction solely because the defendant’s physical strength was superior to that of the victim.
The state maintains that the defendant’s claim is not reviewable because it was not distinctly raised at trial and because the defendant has not requested that we review it under Evans and Golding. Notwithstanding this procedural default, our courts have considered whether to review unpreserved claims of unconstitutional vagueness utilizing the criteria set forth in Evans and Golding. State v. Jones, 215 Conn. 173, 179, 575 A.2d 216 (1990); State v. Jones, 29 Conn. App. 683, 686, 617 A.2d 918 (1992).
“State v. Golding, supra, establishes that a defendant cannot prevail on an unpreserved constitutional claim unless all four conditions are met, any one of which may be considered first. State v. Shaw, 24 Conn.
A claim of unconstitutional vagueness normally “implicates the fundamental due process right to fair warning and the record is adequate to facilitate review.” State v. Schriver, 207 Conn. 456, 459, 542 A.2d 686 (1988). “The constitutional injunction that is commonly referred to as the void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute or regulation and the guarantee against standardless law enforcement. Smith v. Goguen, 415 U.S. 566, 572-73, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974); Mitchell v. King, 169 Conn. 140, 142-43, 363 A.2d 68 (1975).” State v. Schriver, supra, 459-60. “In order to surmount a vagueness challenge, ‘a statute [must] afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited.' McKinney v. Coventry, 176 Conn. 613, 618, 410 A.2d 453 (1979). The constitutional requirement of definiteness applies more strictly to penal laws than to statutes that exact civil penalties. Winters v. New York, 333 U.S. 507, 515, 68 S. Ct. 665, 92 L. Ed. 840 (1948).” State v. Schriver, supra, 460.
The defendant maintains that because no credible evidence was offered showing that violence was involved in either altercation between the defendant and the victim, the defendant was convicted solely because of his physical strength. Thus, according to the defendant, because the “superior physical strength” definition of “use of force” is vague as applied to the facts of this case, his constitutional rights have been infringed. This claim does not clearly implicate the defendant’s constitutional rights because it is predicated on the credibility of the evidence before the jury.
“[I]t is within the province of the jury to determine credibility and assess weight to be given the evidence submitted. State v. Reyes, 19 Conn. App. 179, 191, 562 A.2d 27 (1989). [W]hen the conclusion is one that is dependent on the resolution of conflicting testimony, it should ordinarily be left to the jury for its judgment. State v. Torello, 100 Conn. 637, 647-48, 124 A. 375 (1924). State v. Bewry, 26 Conn. App. 242, 246, 600 A.2d 787 (1991), cert. denied, 221 Conn. 911, 602 A.2d 11 (1992). The evaluation of testimony is the sole province of the trier of fact. State v. Johnson, 26 Conn. App. 553, 557, 603 A.2d 406 (1992).” (Internal quotation marks omitted.) State v. Lago, 28 Conn. App. 9, 31, 611 A.2d 866, cert. denied, 223 Conn. 919, 614 A.2d 826 (1992).
Ill
The defendant next claims that the prosecutor’s argument to the jury constituted misconduct and deprived him of his right to a fair trial. Specifically, the defend
The defendant argues that this claim is reviewable under the “exceptional circumstances” doctrine of State v. Evans, supra. We disagree because in this case, in contrast to the cases the defendant relies on, the record does not demonstrate “a pattern of repeated, strident and serious misconduct.” State v. Rodgers, 207 Conn. 646, 653, 542 A.2d 1136 (1988). “In the cases in which we have denied Evans review, the claimed misconduct consisted of isolated and brief episodes, and did not reveal a pattern of conduct repeated throughout the trial. Moreover, the misconduct was not blatantly egregious. State v. Williams, supra, 537. . . .” (Citations omitted; internal quotation marks omitted.) State v. Rodgers, supra, 653-54; State v. O’Brien, 29 Conn. App. 724, 727-28, 618 A.2d 50 (1992), cert. denied, 225 Conn. 902, 621 A.2d 285 (1993). This claim relates only to two isolated portions of the state’s closing argument.
The defendant argues that the following comments were egregious in that they suggested that the older daughter testified that she saw the defendant rape her mother when, in fact, she did not actually testify that she had seen the defendant rape her mother. The state’s attorney stated, with reference to the September 21
The defendant also argues that the state’s attorney misled the jury when he tried to explain why other witnesses did not remember seeing bruises that the victim testified she sustained from her husband’s actions. The state’s attorney stated that the defendant’s counsel “argued that well, while Officer Buden didn’t see any bruises on October 4th. Well, most of the testimony, if you recall, with respect to bruises concerned the September 21st incident, not the October 4th inci
Even if we were to find these two segments of the closing argument misleading, they did not rise to the level of misconduct that constitutes a denial of the right to a fair trial. State v. Rodgers, supra. Therefore, we conclude that the remarks of the prosecutor do not constitute the “exceptional circumstance” necessary for us to entertain this unpreserved claim. Id.; State v. Golding, supra; 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 12.
IV
The defendant next claims that he was denied the effective assistance of counsel at trial. Our Supreme Court has emphasized in other cases that a claim of ineffective assistance of counsel is more properly pursued on a petition for a new trial or on a petition for a writ of habeas corpus rather than on direct appeal. State v. Walker, 215 Conn. 1, 9, 574 A.2d 188 (1990); State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986). Accordingly, we will not review this claim.
V
The defendant also challenges the trial court’s decision to allow into evidence expert testimony relating to the general characteristics of a person suffering from battered women’s syndrome. Specifically, the defendant argues that the prejudicial effect of this testimony outweighed its probative value.
Before the experts’ testimony was admitted, counsel for the defendant attempted to impeach the credibility of the victim on cross-examination by questioning her about her failure to notify the police immediately of her husband’s actions. The testimony of both witnesses was limited to the characteristics of a woman suffering from this syndrome and neither expert was permitted to proffer their opinions as to whether the victim actually suffered from the syndrome or as to whether it was surprising that the victim did not immediately contact the authorities. The outreach advocate testified that women suffering from that syndrome often do not report their abusers to the police.
Expert testimony is admissible if “(1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues. [State v. Kemp, supra]; see also State v. Spigarolo, 210 Conn. 359, 376, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989); State v. Watson, 26 Conn. App. 151, 153, 599 A.2d 385 (1991), cert. denied, 221 Conn. 907, 600 A.2d 1362 (1992).” (Internal quotation marks omitted.) State v. Christiano, supra, 649-50. The defendant’s claim is related to the third criterion, which addresses the relevance of the testimony.
“[E]vidence is relevant only when it tends to establish the existence of a material fact or to corroborate other direct evidence in the case. . . .” (Citations omitted; internal quotation marks omitted.) State v. Millstein, supra, 596. “[T]he test of relevancy is not whether the answer sought will elucidate any of the main issues, but whether it will to a useful extent aid the court or jury in appraising the credibility of the witness and in assessing the probative value of the direct testimony.” (Internal quotation marks omitted.) State v. Hernandez, 224 Conn. 196, 207, 618 A.2d 494 (1992). The victim’s failure to report the September 21,1990 incident in a timely manner was repeatedly pressed by the defense and the victim herself was questioned on this by the defense on cross-examination. To repudiate the
Contrary to the defendant’s assertions, the state had presented evidence of an abusive relationship warranting the testimony on battered women’s syndrome. The relationship of the victim and the defendant was stormy, the defendant having thrown the victim out of the house on five occasions in 1990. There was testimony that the defendant verbally abused the victim, placed her neck in a choke hold, ordered her out of the house, threatened her, held her down, threw her about the house, and sexually assaulted her. We have previously found that rehabilitative evidence used to explain the victim’s delay in disclosing abuse provides “the jurors with a relevant insight into the victim’s behavior that they might not otherwise bring to its evaluation of the victim’s credibility.” State v. Christiano, supra, 654; see State v. Spigarolo, supra, 380 (“where defense counsel has sought to impeach the credibility of a complaining minor witness in a sexual abuse case, based on inconsistency, incompleteness or recantation of the victim’s disclosures pertaining to the alleged incidents, the state may offer expert testimony that seeks to demonstrate or explain in general terms the behavioral characteristics of child abuse victims in disclosing alleged incidents”). Thus, the trial court did not abuse its discretion in determining that the evidence is relevant to the issue of credibility.
Furthermore, we find that trial court also properly concluded that the prejudicial effect of the testimony did not outweigh its probative value, especially given the trial court’s limiting instruction.
Even if the evidence were not admissible, its admission was harmless because the limiting instruction vitiated any potential prejudice on the limited purpose of the evidence of the expert’s testimony concerning battered woman’s syndrome. The defendant does not claim now, nor did he at trial, that the trial court’s decision to admit the testimony concerning battered women’s syndrome violated his constitutional rights. The defendant, therefore, bears the burden of proving harmfulness by showing that it is more probable than not that the decision of the trial court affected the result of the trial. State v. Payne, 219 Conn. 93, 102, 591 A.2d 1246 (1991). This burden has not been satisfied.
VI
The defendant’s final claim relates to the admissibility of the testimony of the victim’s father. He testified about an incident that occurred after he brought the victim and the children back to the Battistas’ condominium in August, 1990. The defendant was extremely hostile to them upon their arrival, and, after mistreat
The defendant’s argument that this evidence imper-missibly tried the defendant on his character was not properly preserved in the trial court. Practice Book § 288; State v. Anderson, supra. The defendant’s argument that the testimony was irrelevant and prejudicial because it dealt with the prior bad act of the defendant, is properly before us, however.
“[W]e will reverse the trial court’s ruling [on evidence] only where there is abuse of discretion or where an injustice has occurred . . . and we will indulge in every reasonable presumption in favor of the trial court’s ruling.” (Citation omitted.) State v. Mooney, 218 Conn. 85, 131, 588 A.2d 145, cert. denied, U.S. , 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991). We find no such abuse of discretion or injustice in this case. The trial court found this testimony to be more probative than prejudicial because it tended to show that the victim was unwilling to leave an abusive relationship. It was relevant to the rehabilitative testimony concerning battered women’s syndrome. Even if we assume that this ruling was erroneous, the trial court’s decision was harmless because testimony about this incident had been admitted without objection. See State v. Payne, supra.
The judgment is affirmed.
In this opinion the other judges concurred.
The outreach advocate described her duties as follows: “As the outreach advocate, I do individual counseling, crisis counseling, support groups, legal advocacy, advocacy for medical purposes, housing and community education.”
The defendant was acquitted of committing sexual assault in a spousal or cohabiting relationship, General Statutes § 53a-70b, risk of injury to a child,
A motion for judgment of acquittal may properly be made at the close of the state’s case; Practice Book §§ 883, 884; at the completion of all of the evidence; Practice Book §§ 883,885; and following a guilty verdict. Practice Book § 899.
General Statutes § 53a-70b (b) provides: “No spouse or cohabitor shall compel the other spouse or cohabitor to engage in sexual intercourse by the use of force against such other spouse or cohabitor, or by the threat of the use of force against such other spouse or cohabitor which reasonably causes such other spouse or cohabitor to fear physical injury.”
General Statutes § 53a-70b (a) (2) provides: “ ‘Use of force’ means: (A) Use of dangerous instrument; or (B) use of actual physical force or violence or superior physical strength against the victim.”
The four conditions that must exist before a defendant may prevail on an unpreserved claim of constitutional error are as follows: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1990). The absence of any one of these conditions will cause the defendant’s claim to fail. Id.
The defendant does not question the expertise of these witnesses to testify. See Knock v. Knock, 224 Conn. 776, 783, 621 A.2d 267 (1993).
Each also testified that the victim said she had been sexually assaulted by her husband. This testimony was admitted under the constancy of accusation exception to the hearsay rule and has not been challenged by the defendant.
Both witnesses also testified as to the victim’s behavior at the time that each spoke to her about the sexual assault.
Counsel for the defendant objected as follows: “[T]he probative value of anything that [the psychiatric social worker] could offer in this particular case would be highly prejudicial to the defendant. I think the whole atmosphere created by his testimony and his using the words of a battered individual is going to create a very prejudicial position in the minds of the jury. ... I don’t feel that the jury would be in the position to really appreciate [the testimony], and I think they are going to make certain assumptions that are going to be highly prejudicial to this defendant, and I would object to his testifying on this subject.”
The outreach advocate testified: “A woman suffering from battered women’s syndrome has a very difficult time in decision-making, especially around the decision whether or not to leave. She’s very confused, and torn between wanting things to work out, to get better, believing what she’s being told by her partner, and her constant fear for her safety and that of her children. . . . Because of those things that I was just describing, it makes it very difficult for a woman in that position to call the police knowing that also if she’s had any experience in the past or any knowledge of it, that probably her partner will be released in a few hours time. That the fact that when a woman attempts to leave is the most dangerous time for her and the children.”
Bngelhardt testified to the following: “A woman who is described as suffering from battered women’s syndrome would be feeling trapped in a relationship with a spouse or significant other in her relationship [with a person] who is physically or sexually abusive to her. In spite of that abuse, the woman would feel emotionally dependent on that person, financially dependent on that person, and for those reasons, would not move towards getting out of the relationship in spite of the fact that she was being abused.”
The trial court explained: “In this particular case, I find that there is probative value because as this case has been tried, counsel for both sides have permitted, I think, to a great degree, the issue of whether there is a battering relationship here to enter into the case. It has been contested by the defense largely that there was such a relationship. It has been contested at every turn through the children and through the complainant herself. The state has been allowed to introduce testimony about prior incidents including the Easter incident and other incidents in which there áre claims that there were battering, there was a pattern of battering that had gone on for some time, a pattern which had been made through cross-examination that the failure to report early and often raises serious doubt as to the integrity of the witness and as to the truth of her allegations. These are matters that I think have been fairly brought forward by the defense not inappropriately, but they’ve set this case in a context and in that context I think the truthfulness of the witness as to her claim why she didn’t come forward in the report is put in question. I think there is enough testimony on the record, suffice it to say, then, with respect to battering over a period of time with respect to an adverse, hostile, physical relationship between Mr. Battista and the complainant and enough of a claim raised with respect to a failure to report in a timely fashion both the Easter incident to follow up on that and these later two incidents to permit in generic testimony as to the manner in which the battered women’s syndrome operates on the psyche of a person who is actually victimized by it. What the witness will not be allowed to testify to is his conclusion that she was a battered woman. He will not be able to testify as to his conclusion that she was suffering from the battered women’s syndrome, not to be able to testify that he would not be surprised if the reasons she didn’t report this was because she was a battered woman.” The court concluded that the testimony of the witness would be limited in this manner to avoid invading the province of the jury.
The trial court instructed the jury as follows: “Finally, a third type of evidence which was introduced solely on the question of credibility was evidence concerning the battered women’s syndrome. You recall there were
Although the defendant objected following the charge, this charge has not been challenged on appeal. The objection was directed more toward the introduction of the evidence and no suggestion for a curative charge was put forward.