25 Conn. App. 503 | Conn. App. Ct. | 1991
Lead Opinion
The defendant appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70, burglary in the third degree in violation of General Statutes § 53a-103, and one count of harassment in violation of General Statutes § 53a-183 (a) (3).
The following facts are necessary for the resolution of this case. From 1985 until December, 1987, the
On February 14,1988, the defendant telephoned the victim at her apartment and asked her to go to lunch with him. She refused his invitation and turned on her answering machine to avoid further calls from him. After the victim showered and got dressed, she noticed that her cat was standing by the door. She opened the door and the defendant forced his way into her apartment, forced her onto the sofa, and sexually assaulted her. The victim then retreated to the bathroom and locked the bathroom door behind her. She stayed in this room until the defendant left the apartment.
After the defendant left her apartment, the victim called a friend, who advised the victim to call 911. The victim then dialed 911 and reported that she had been sexually assaulted and named the defendant as her assailant. The defendant was arrested and charged with first degree sexual assault and burglary in the third degree, and was released on bond.
On February 16, 1988, the victim began to keep a written record of telephone calls from the defendant. On February 17, she logged seventy calls. The police put a trap on the defendant’s business telephone line and it registered thirty-four calls to the victim on February 16 and 17, 1988. The defendant made additional calls to the victim on February 18, 1988. The defendant was arrested again and charged with harass
On June 21, 1988, the defendant phoned the victim at her health club. As a result of this phone call, the defendant was again arrested and charged with harassment and tampering with a witness.
The defendant moved for acquittal on all charges at the close of the state’s case, claiming that there was insufficient evidence to prove the defendant’s guilt. The court granted the defendant’s motion as to the harassment charges that arose out of the telephone calls of February 16, 17, and 18, 1988, and as to the charges of tampering with a witness that arose out of a telephone call to the victim’s health club on June 21,1988.
I
Motion to Strike
The defendant first claims that the trial court improperly denied his motion to strike certain testimony based on the state’s failure to produce the 911 and police broadcast tapes. As a preliminary matter, we note that the defendant never moved to strike any of the officers’ testimony relating to the police broadcast tapes at trial. Practice Book § 4185 provides in pertinent part that this court “shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial.” Further, the defendant bears the burden of seeking a definitive ruling on the striking of each witnesses’ testimony, after each has testified at trial, in order to comply fully with our rules of practice and to preserve his claim of error as to each witness. State v. Johnson, 214 Conn. 161, 170, 571 A.2d
The following facts are necessary to the resolution of this claim. At trial, the victim testified that when she called her friend after the defendant had left the apartment, she told her, “Tony assaulted me.” The victim also testified that when she dialed 911 to report the incident, she told the police that the defendant had raped her. When the victim’s friend testified, she stated that when the victim telephoned her immediately after the incident she said, “Tony hit me.”
Before the trial began, the trial court granted the defendant’s motion for discovery seeking “[cjopies of statements of prosecution witnesses in the possession of the State or its agents, including state and local law enforcement officers, which statements relate to the subject matter about which the witness will testify . . . .”
Although the law in this area is still evolving, past cases have analyzed the destruction of 911 tape recordings in the same way that we have analyzed the destruction of any other recorded statement. Compare State v. Pollitt, 205 Conn. 61, 85-87, 530 A.2d 155 (1987) (defendant suffered no substantial prejudice from the loss of the victim’s 911 statement), with State v. Belle, 215 Conn. 257, 268, 576 A.2d 139 (1990) (defendant not prejudiced by destruction of victim’s statements before trial).
Practice Book § 752 provides that, upon a defendant’s request, the state must disclose “any statement of the witness in the possession of the state or its agents . . . .” See General Statutes § 54-86b. The disclosure provisions of § 54-86b and Practice Book § 752 apply to a 911 tape recording. State v. Williamson, 14 Conn. App. 108, 112-13, 552 A.2d 815 (1988), aff'd, 212 Conn. 6, 562 A.2d 470 (1989). The state was unable to comply with this requirement at trial because of the police department’s routine erasure of the 911 tape.
The state acknowledges that the 911 tape is a statement within the meaning of Practice Book § 749 (2),
The trial court found that the defendant’s constitutional right to confrontation was not violated, and that he was not prejudiced by the state’s inability to produce the 911 tape. We agree. Any credibility issue that arose because of the conflict between the victim’s testimony and that of her friend was placed squarely before the jury, and, thus, the defendant’s constitutional right to confrontation was not violated. Further,
The importance of the 911 tape in the context of the entire trial is insignificant. The theory of defense was that the defendant and the victim had had sexual intercourse at the time and place as claimed by the victim, but that their encounter was consensual. Even if the victim had merely told her friend that “Tony hit me,” that statement itself would be contrary to the defendant’s assertion of consensual sexual intercourse. From this perspective the victim’s characterization of the crime has been consistent. Whether she told her friend that the defendant had “hit” or “assaulted” her, she nonetheless indicated that a struggle had taken place between her and the defendant during the undisputed sexual relations. Following the same logic, it is inconsequential whether she told the 911 operator that she had been “assaulted” or “raped,” especially in view of the fact that a rape is a sexual assault. Thus, it is unreasonable to conclude that the jury’s verdict would have been different had the tape been available to them, in that it is illogical that the victim would have dialed 911 to report consensual sexual relations. The trial court properly denied the defendant’s motion to strike.
We hold that commencing from this date, 911 tapes are excluded from that portion of Practice Book § 752
A one year period gives a defendant ample time to enter a plea, file his discovery motions pursuant to Practice Book §§ 809
II
Motion for Severance
The defendant filed a pretrial motion for severance requesting a separate trial for the crimes charged in each of four separate informations,
“General Statutes § 54-57
As we have noted, the informations contained charges of sexual assault in the first degree, burglary in the third degree, tampering with a witness, and three counts of harassment. The event that triggered the defendant’s actions was the deterioration of his romantic relationship with the victim. Evidence of the defendant’s threats and harassing phone calls provided probative evidence of the defendant’s motive and intent on the burglary and sexual assault charges. See State v. Ramsundar, 204 Conn. 4, 14-16, 526 A.2d 1311, 484 U.S. 955, 108 S. Ct. 348, 98 L. Ed. 2d 374 (1987) (evidence of prior misconduct and conviction for harass
Ill
Due Process Violations
The defendant next claims that the trial court violated his right to due process on three separate occasions when it allowed the state to elicit evidence of the invocation of his constitutional rights.
The following facts are necessary to the resolution of this claim. First, the defendant argues that during the state’s direct examination of Officer Kevin Calder-wood of the Milford police department, the officer testified that after the defendant had come into the police department to tell his side of the story, Calderwood
The defendant next asserts that after the luncheon recess, the state resumed its direct examination of Calderwood as to his questions to the defendant. The officer testified that the defendant had informed him that the victim had accepted his luncheon invitation and shortly after he had arrived at the victim’s home they had engaged in consensual sexual relations. Calder-wood then stated that he had twice asked the defendant what the victim was wearing when he arrived at her apartment and the defendant gave two conflicting answers. Calderwood further testified that Detective Steve Fournier, who was also present during the questioning of the defendant, told the defendant that the call the defendant had made to the victim arranging their lunch date may have been recorded, and that the defendant then “stated he had nothing else to say without an attorney present.” The state then asked, “How would you describe the defendant’s reaction as he was indicating that he didn’t have anything else to say?” Calderwood replied, “He got a little excited.” The defendant moved to strike the state’s question and
The defendant argues that the third violation of his rights took place during the state’s second redirect examination of Calderwood when he was asked if the defendant had changed his responses when he had been confronted with a change in circumstances. Calderwood stated that “[tjoward the end of our interview, which was not very long, when Detective Fournier was pressing Mr. Cain about the lunch date over the telephone he really became upset and he stated that he wanted to talk to his attorney and nothing else was said. We terminated our interview.” The defendant noted that “the state’s last question referred to a change in [the defendant’s] either demeanor or responses with regard to a change in circumstances.” He then moved to strike Calderwood’s statement arguing that evidence of the defendant’s invocation of his constitutional right to an attorney is prohibited under Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976).
On appeal, the defendant claims that in these three interviews the state used an effective trial tactic to inform the jury that he had remained silent and had requested counsel when confronted with the possibility that his call to the victim may have been recorded. He also reasserts his claim under Doyle v. Ohio, supra. We conclude that the testimony in this case did not violate the principles set forth in Doyle.
“Doyle v. Ohio proscribes the use for impeachment purposes of a defendant’s silence subsequent to his arrest and after receiving Miranda warnings. ‘The
The defendant’s argument must fail for two reasons. First, as pointed out by the trial court, the purpose of the state’s questions was to ascertain the defendant’s reaction to the officer’s indication that his phone calls to the victim may have been recorded, and not to elicit his assertion of his right to remain silent for impeachment purposes as required by Doyle. Second, although the evidence of the defendant’s request for counsel was heard by the jury, it was admissible as demonstrative evidence of the officer’s investigative effort, and to show the sequence of events as they unfolded. We conclude that the officer’s testimony was properly admitted.
IY
Sufficiency of the Evidence
The defendant next claims that there was insufficient evidence to convict him of the crime of burglary in the third degree and harassment.
Our scope of review on sufficiency of evidence claims is limited to a two part inquiry. State v. Summerville,
Our review of the record before us indicates that the evidence in this case overwhelmingly supports the jury’s verdict, and was sufficient to convict the defendant of the crimes charged.
V
Jury Charge
The defendant next claims that the trial court improperly instructed the jury on the question of consent and on the statutory element of the threat of the use of force. He also claims that the court’s instructions on the crime of burglary in the third degree deprived him of a unanimous verdict. We will address each of these assertions individually.
A
CONSENT
The defendant argues that the trial court improperly, instructed the jury on the elements of compulsion required for a conviction of first degree sexual assault. He argues that his own declaration “I don’t know why she is upset, we’ve done it like that before” is sufficient to support his defense of consent. Relying on State v. Smith, 210 Conn. 132, 554 A.2d 713 (1989), he contends that this bald assertion was sufficient to have
First, the very language that the defendant now complains about exactly tracks his request to charge.
Further, the defendant’s reliance on State v. Smith, supra, is misplaced. Smith stands for the proposition that “a defendant may not be convicted of . . . [sex
Thus, our examination of this portion of the court’s charge leads us to conclude that the jury was properly instructed as to the crime of sexual assault in the first degree and on the issue of the victim’s consent.
B
STATUTORY ELEMENT OF THE THREAT OF THE USE OF FORCE
The defendant also argues that the trial court’s instruction on sexual assault in the first degree was incomplete because, although the trial court properly explained that it was necessary for the jury to find that the defendant had compelled the victim to engage in sexual intercourse by the use of force or by the threat of the use of force, it did not define the term “the threat of the use of force.”
Initially, we note that the instructions as given by the trial court are once again nearly a mirror image of the defendant’s request to charge. We reiterate that we will not reverse a conviction on the basis of an action that is induced by the appellant unless his constitutional rights have been violated. State v. Turner, supra. In addition, “[d]ue process requires that the state establish beyond a reasonable doubt every essential fact
In view of the above, and the fact that the defendant requested the instruction that was given and took no exception to this portion of the charge, we conclude that the trial court’s instruction on the threat of the use of force was proper.
C
UNANIMNITY OF THE VERDICT
The defendant’s final challenge to the jury charge is that the court’s instructions on burglary in the third degree deprived him of a unanimous verdict in violation of the state and federal constitutions. We disagree.
It is axiomatic that an “ ‘appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or an exception has been taken immediately after the charge is delivered by the party appealing.’ ” State v. Fallwood, 193 Conn. 238, 259, 476 A.2d 550 (1984). The purpose of this rule is to alert the trial court to any possible claims arising from its charge while there is still an opportunity for
In addition, in the present case, the clerk of the trial court specifically inquired as to the jury’s verdict on each individual count, and the trial transcript indicates that the jury foreman responded “guilty” to each count, and that the clerk responded “He stands charged, and so say you all.” (Emphasis added.) When this is the case, a defendant who still has any question as to the unanimity of the verdict on any or all counts, still has the opportunity to move to have the jury polled. State v. Anderson, 211 Conn. 18, 34, 557 A.2d 917 (1989). The defendant also neglected to take advantage of this third opportunity to preserve this claim.
Absent the defendant’s objections, we can review his unpreserved claim only under the exceptional circumstances doctrine of State v. Evans, 165 Conn. 61, 65-66, 327 A.2d 576 (1973), as reformulated by State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989); State v. Fullwood, supra. The defendant in this case, however, offers us only an abstract assertion that this unpreserved claim represents a violation of his state and federal constitutional rights without offering us any analysis under either constitution. An issue that is not properly briefed is considered abandoned. State v. Gaines, 196 Conn. 395, 397-98 n.2, 493 A.2d 209 (1985). We conclude that the trial court properly instructed the jury on the crime of burglary in the third degree.
VI
Admission of State’s Exhibit
The defendant’s final claim is that the trial court should not have admitted state’s exhibit E, the victim’s phone log recording her phone calls on February 16, 17, and 18, 1988, because the defendant was acquitted of the related harassment charges.
“Evidence is only admissible when it tends to establish a fact in issue or to corroborate other direct evidence in a case.” State v. Robinson, 213 Conn. 243, 259, 567 A.2d 1173 (1989). The harassment charges that stemmed from the defendant’s June 21,1988 phone call to the victim’s health spa required proof of the victim’s state of mind, in that it was essential for the state to prove beyond a reasonable doubt that the defendant’s actions were “likely to cause annoyance or alarm”
The judgment is affirmed. '
In this opinion Norcott, J., concurred.
The state’s charging document cites a violation of General Statutes § 53a-183 (3). This appears to be a scrivner’s error, in that the only portion of § 53a-183 that carries a subdivision (3) is § 53a-183 (a) (3). This conclusion is further supported by the fact that the text of the substitute information tracks the wording of § 53a-183 (a) (3), in that it reads: “on or about the 21st day of June 1988, the said Anthony W. Cain with intent to harass, annoy or alarm another person did make telephone calls in a manner likely to cause annoyance or alarm in violation of C.G.S. 53a-183 (3).” By way of comparison, General Statutes § 53a-183 (a) (3) provides that “[a] person is guilty of harassment in the second degree when. . . with intent to harass, annoy or alarm another person, he makes a telephone call, whether or not a conversation ensues, in a manner likely to cause annoyance or alarm.”
Despite the defendant's assertions to the trial court to the contrary, a separate motion for the preservation and production of these tapes was never properly filed, and, therefore, was never acted upon by the trial court. The only motion that is properly before us for review with respect to this issue is the defendant’s motion for discovery.
Practice Book § 749 provides: “The term ‘statement’ as used in Sec. 748 means ... (2) A stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by a person and recorded contemporaneously with the making of such oral statement.”
“In the context of a § 752 violation . . . the term ‘bad faith’ connotes a deliberate act done with intent to deprive the defense of information.” State v. Williamson, 212 Conn. 6, 16, 562 A.2d 470 (1989).
18 U.S.C. § 3500. Our Practice Book §§ 748 through 755 are modeled after the federal Jencks Act. See State v. Anonymous (83-FG), 190 Conn. 715, 732, 463 A.2d 533 (1983); State v. Gonzales, 186 Conn. 426, 432, 441 A.2d 852 (1982).
Practice Book § 752 provides: “[disclosure of statements—statements OF WITNESS]--PRODUCTION FOLLOWING TESTIMONY
“After a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness has testified.”
Practice Book § 956B provides in pertinent part: “[speedy trial]— TIME LIMITATIONS
“(b) Except as otherwise provided herein and in Sec. 956C, the trial of a defendant charged with a criminal offense on or after July 1,1985, shall commence within twelve months from the filing of the information or from the date of the arrest, whichever is later.
“The trial of such defendant shall commence within eight months from the filing of the information or from the date of the arrest, whichever is later, if the following conditions are met:
“(1) the defendant has been continuously incarcerated in a correctional institution of this state pending trial for such offense; and
“(2) the defendant is not subject to the provisions of Gen. Stat. § 54-82c.
“(c) If an information which was dismissed by the trial court is reinstated following an appeal, the time for trial set forth in paragraphs (a) and (b) shall commence running from the date of release of the final appellate decision thereon.
“(d) If the defendant is to be tried following a mistrial, an order for a new trial, an appeal or collateral attack, the time for trial set forth in paragraphs (a) and (b) shall commence running from the date the order occasioning the retrial becomes final.”
Practice Book § 809 provides: “[pretrial motion practice]— PRETRIAL MOTIONS AND REQUESTS
“Unless otherwise provided by statute or rule, or permitted by the judicial authority for good cause shown, pretrial motions and requests shall consist only of one or more of the following:
“(1) Motions to dismiss under Sec. 814;
“(2) Motions and requests for discovery and depositions under Chapter 26;
“(3) Motions to suppress evidence under Sec. 820;
“(4) Motions for joinder or severance under Sec. 827;
“(5) Motions for a bill of particulars under Sec. 830;
“(6) Motions for transfer of prosecution under Sec. 834.”
Practice Book § 811 provided, at the time in question here, in pertinent part: “[pretrial motion practice]—time for making pretrial MOTIONS OR REQUESTS
“Unless otherwise provided by these rules or statute, all pretrial motions or requests shall be made not later than ten days after the entry of a plea in the court where the case will be tried, or, for good cause shown, at such later time as the judicial authority may fix.”
The defendant was charged in four informations as follows: (1) Docket No. CR5-71783, sexual assault in the first degree and burglary in the third degree, (2) Docket No. CR5-71829, one count of harassment based on the defendant’s February 16,1988 telephone calls to the victim, (3) Docket No. CR5-71828, two counts of harassment based on the defendant’s telephone calls to the victim on February 17 and 18, 1988, and (4) Docket No. CR5-73898, harassment and tampering with a witness based on two calls to the victim at her health club on June 21, 1988.
“[General Statutes] Sec. 54-57. joinder of offenses of the same character. Whenever two or more cases are pending at the same time against the same party in the same court for offenses of the same character, counts for such offenses may be joined in one information unless the court orders otherwise.”
“[Practice Book] Sec. 829. —trial together of indictments or informations
“The judicial authority may, upon his own motion or the motion of any party, order that two or more indictments or informations or both, whether against the same defendant or different defendants, be tried together.”
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The defendant contends that the court’s instructions that the element of compulsion would be negated by “the actual consent of the victim,” that such consent “must be actual and real,” and that it must be a “truly voluntary and willing act of sexual intercourse” were improper. That portion of the defendant’s request to charge that dealt with this issue requested the following: “The actual consent of the victim to sexual intercourse will negate, will negative, the element of compelling by use of force. The consent required, however, must be actual and real, and not just mere surface acquiescence induced by force, by fear or shock. In order for consent to sexual intercourse to negate the element of compulsion, the intercourse must be engaged in by the other person with no compulsion, no threat, no fear, and no force. In other words, it must be a truly voluntary and willing act of sexual intercourse. Consent may be express or it may be implied from all the circumstances then and there existing. Whether or not the victim consented to the sexual intercourse is a question of fact which you must determine from all the circumstances which have been proven to you.” (Emphasis added.)
Although the defendant claims that this instruction violates his constitutional rights, he does not elaborate what rights or how they were violated. An issue that is not properly briefed is considered abandoned. State v. Gaines, 196 Conn. 395, 397-98 n.2, 493 A. 2d 209 (1985).
See footnote 1, supra.
Concurrence in Part
concurring in part, dissenting in part. I conclude that the trial court should have granted the defendant’s motion to strike the victim’s testimony because the missing 911 statement implicated the defendant's federal constitutional right to confront and cross-examine a critical witness. The majority’s opinion has failed to consider the factors the Connecticut Supreme Court has articulated and applied in similar cases to assess whether the missing 911 statement infringed on the defendant’s confrontation rights. See State v. Belle, 215 Conn. 257, 269-70, 576 A.2d 139 (1990) ; State v. Johnson, 214 Conn. 161, 174-75, 571 A.2d 79 (1990); State v. Williamson, 212 Conn. 6, 22-23, 562 A.2d 470 (1989) (Williamson II); State v. Sanford, 25 Conn. App. 255, 260-61, 594 A.2d 477 (1991) . First, it must be determined whether “the trial court or a reviewing court ha[d] access to the unproduced material.” WilliamsonII, supra, 22. As in Williamson II, neither the trial court nor this court has had access to the victim’s 911 statement because it was destroyed. As in Williamson II, neither the trial court nor this court has had a counterpart transcript of the missing statement, read and adopted by the victim shortly after making her 911 telephone call. Id., 23. Finally, like the Williamson II case, the defendant’s conviction obviously rested on the testimony of the victim, whose pretrial statement was destroyed. Id., 22-23. Given these factors, the defendant’s right to confront and cross-examine the victim was implicated and
From the evidence adduced at trial, the state could not prove that the missing 911 statement was harmless beyond a reasonable doubt. The defendant’s conviction rested squarely on the victim’s testimony in this case and her testimony contained critical inconsistencies. On direct examination, the victim testified that the first person she called after the incident was her friend. The victim claimed that she told her friend that the defendant had assaulted her. She then testified that after this conversation she called 911 and reported: “I was raped.” During her cross-examination, the victim testified that she told her friend, “[the defendant] raped me,” not “[the defendant] hit me,” as her friend had testified. She then explained that in her prior testimony she had used the word “assaulted” because she was afraid to use the term “rape,” and that she had, in fact, told her friend that she was raped. During recross, the victim reaffirmed the sequence of her telephone calls and that she had reported to the 911 operator that she had been raped. The victim’s friend testified that the victim called and said “[the defendant] hit me,” but she was not certain of the wording, and later testified that it sounded like “[the defendant] hit me.” The state submitted into evidence the victim’s statement to the police on the day she called 911. The statement contained the victim’s accusation that the defendant had raped her on that day.
The trial court’s conclusion that the defendant had not been prejudiced was based on its speculation that the 911 tape contained the victim’s accusation that she had been raped.
The defendant was able thoroughly to cross-examine the witnesses and did expose the jury to the inconsistencies contained in the victim’s testimony and in her conversation with her friend. See Williamson II, supra,
As a result of this conclusion, I would reverse the judgment of conviction on the counts of sexual assault and burglary and remand the case for a new trial on those counts. In all other aspects of the majority’s opinion I concur.
The trial court rendered its decision on the defendant’s motion to strike before the Connecticut Supreme Court affirmed State v. Williamson, 14 Conn. App. 108, 540 A.2d 386 (1988) (Williamson I) in State v. Williamson, 212 Conn. 6, 562 A.2d 470 (1989) (Williamson II). Williamson II defined the appropriate standards applicable to determine the state’s burden of proving harmless error. Williamson II, supra, 19. Thus, the trial court did not have the guidance of Williamson II in deciding the issue of prejudice.
A court may not speculate about what a missing statement contains or how the defendant would have used this unproduced statement in his defense. State v. Williamson, 212 Conn. 6, 22-23, 562 A.2d 470 (1989).
