220 Conn. 698 | Conn. | 1991
After a jury trial the defendant, Robert K. Jeffrey, was convicted of the crimes of sexual assault in the first degree in violation of General Statutes § 53a-70 (a)
The jury reasonably could have found the following facts. On October 12,1988, the defendant and the complainant, previously strangers to each other, met at a bar in Wallingford where the complainant was a regular patron. The defendant introduced himself as “Bob” and mentioned that he owned a nightclub in Old Saybrook. They spent several hours eating, drinking, playing pool and otherwise socializing with each other
Several days later, at the behest of a friend to whom she had confided the story, the complainant reported the incident to the police. The next day the police arrested the defendant after the complainant had positively identified him by choosing his picture from a photo array.
The jury heard contrary testimony from the defendant, who admitted having engaged in various sexual acts with the complainant, but claimed that he had done so with the complainant’s consent. According to the defendant, sometime between 11 p.m. and midnight, after socializing with the complainant and others for most of the evening, he left the bar alone, but the complainant followed him outside. They kissed for a short while, and then he asked the complainant if she wanted to get into his car. She agreed, and they entered the car and began to kiss more passionately. The complainant stated that they should not persist right in front of the bar, prompting the defendant’s suggestion that they go elsewhere. He then drove to the park and stopped the car in a certain secluded area, which the complainant said was all right. They left the car and engaged in consensual sexual intercourse. Afterwards, they drove back to the bar but, once there, decided to return to the park to resume their sexual activity. They again had intercourse and also engaged in oral sex. The defendant stated that, at a certain point, he did interrupt the sexual activity in order to urinate, but that, when he did so, he purposely turned away from the complainant, so as not to urinate on her or toward her. Presumably, the jury disbelieved the defendant’s version of the facts because it convicted him of both sexual assault and kidnapping.
The defendant’s first claim on appeal is that the trial court abused its discretion when it admitted into evidence the urine stained shirt worn by the complainant on the night the alleged sexual assault was committed. Our review of the record satisfies us that the admission of the urine stained shirt was a proper exercise of the trial court’s discretion.
Some background information is necessary. The shirt was initially marked for identification during the direct testimony of the complainant, who testified that it was the shirt she was wearing on the night of the incident and, that it had been clean before she put it on that night. The shirt had remained on her throughout the sexual assault, although it had been pushed up at times. According to the complainant, she arrived home after the sexual assault, took off her clothes, including the shirt, and put them on her bedroom floor. The next day she washed other clothing she had been wearing that night, but did not wash the shirt at any time before she handed it over to the police on October 17, 1988. On cross-examination, she stated that, during the time period involved, she owned three pets, one dog and two cats.
A hearing was then held, outside the presence of the jury, in which the court heard the testimony of Debra Messina, a criminologist at the state police forensic laboratory, who stated that she had tested a stain on the shirt and found only one substance, creatinine, a chemical found in human and animal urine. The defendant advanced several objections to the admission of the shirt into evidence, but the court overruled them, stating that any weaknesses in the evidence went to its weight and not to its admissibility. Thereafter, Messina repeated her testimony before the jury, adding that
The defendant contends that the shirt should have been excluded as irrelevant because the state had failed to establish an adequate link between the urine stain and the defendant. He also argues that the shirt should have been excluded because the state had failed to establish that the shirt had not been materially altered or tampered with in any way during the time it lay on the complainant’s bedroom floor until the police seized it several days later. Finally, the defendant maintains that even if the shirt was relevant evidence, the trial court abused its discretion when it admitted it into evidence because its prejudicial effect outweighed any probative value it might have had. We address these claims seriatim.
A
In considering the defendant’s first argument, we begin by noting that relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. State v. McClendon, 199 Conn. 5, 8-9, 505 A.2d 685 (1986). Evidence is irrelevant if there is “such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in proof of the latter.” State v. Kelly, 77 Conn. 266, 269, 58 A. 705 (1904). In this case, the complainant testified that the defendant had urinated on her during the alleged sexual assault. Evidence of a urine stain on the shirt she was wearing would tend to support the conclusion that the defendant had done so. Messina testified that creatinine, a substance found only in the urine of human beings and animals, was detected on the complainant’s shirt. Even though the defendant concedes that the stain contained urine, he argues that
In Moody, we reversed the defendant’s murder conviction because we concluded that the trial court had abused its discretion when it admitted into evidence the result of a “presumptive test for blood” performed on a stain located on the defendant’s shoe. Although an expert had testified that the stain had produced a positive test result, and he had explained that this meant only that “the stain could be human blood, animal blood or something other than blood,”
It is true that evidence of urine on the complainant’s shirt does not, in and of itself, amount to proof that the defendant caused the stain, nor does it rule out other plausible explanations for its presence. These
B
With respect to the defendant’s claim of material alteration of the shirt, “[t]here is no hard and fast rule that the prosecution must exclude or disprove all possibility that the article . . . has been tampered with . . . ” State v. Johnson, 162 Conn. 215, 232, 292 A.2d 903 (1972). In each case the trial court must satisfy itself that the evidence offered probably has not been changed in important respects. State v. Conroy, 194 Conn. 623, 625-26, 484 A.2d 448 (1984); State v. Asherman, 193 Conn. 695, 722, 478 A.2d 227 (1984). The complainant’s unrebutted testimony that the shirt was clean before the alleged crimes and that, afterwards, it lay on her bedroom floor undisturbed for several days until the police seized it, provided sufficient proof for the trial court to satisfy itself that the condition of the shirt probably had not been changed in any important respect since the events in question. In light of the complainant’s testimony, arguments about the possibility of tampering, unsubstantiated by any affirmative proof, were properly advanced to undermine the weight attributable to the evidence, but not to preclude its admissibility.
C
We reject the defendant’s final challenge to the admission of the urine stained shirt because we con-
II
The defendant’s next claim is that the trial court improperly admitted into evidence a “sex crimes report” prepared by Detective Patricia Miranda, the lead investigating officer in the case, after she had interviewed the complainant about the alleged crimes. A sex crimes report is a four page form used by the
On appeal the defendant maintains that the sex crimes report should have been excluded “primarily on
A
In arguing that the sex crimes report should have been excluded by the trial court as irrelevant, the defendant properly notes that there are two components to relevant evidence: materiality and probative value. C. McCormick, Evidence (3d Ed. 1984) § 185, p. 541. He contends that, although the sex crimes report was material to the issues presented in the prosecution, it lacked probative value and was thus irrelevant. We do not agree that the report lacked probative value.
The probative value of evidence is its tendency to establish the proposition that it is offered to prove. State v. McClendon, supra; C. McCormick, supra. Miranda’s notations on the sex crimes report clearly tended to establish the proposition that the defendant had kidnapped and sexually assaulted the complainant. Because the sex crimes report essentially catalogued the complainant’s account to Miranda of what had transpired, it was probative of the defendant’s guilt. That this information was admitted into evidence in the form of standardized phrases may have raised ques
We also reject the argument that the report lacked probative value because it was primarily a mechanism for the compilation of statistical data about sex crimes rather than a document prepared specifically for substantive use in the criminal prosecution. Bills, receipts, records and many other forms of documentary evidence have been routinely admitted into evidence despite the fact that they were not created with courtroom use in mind. See, e.g., Borucki v. MacKenzie Bros. Co., 125 Conn. 92, 3 A.2d 224 (1938) (hospital records); Carangelo v. Nutmeg Farm, Inc., 115 Conn. 457, 162 A. 4 (1932) (medical bills); Garland v. Gaines, 73 Conn. 662, 49 A. 19 (1901) (letters). In fact, reports prepared specifically for litigation have at times come under attack because such documents present an opportunity for an interested party to falsify or embellish facts to serve his or her own interests. See C. Tait & J. LaPlante, Handbook of Connecticut Evidence (2d Ed. 1988) § 11.14.7, p. 392. We have stated that the “trustworthiness of such documents [business records] comes from their being used for business and not for litigation.” (Emphasis added.) Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 388-89, 461 A.2d 422 (1983). Consequently, we see no merit to the contrary claim that the sex crimes report in this case should have been excluded as irrelevant because it had not been prepared for litigation.
B
The defendant’s claim, raised for the first time on appeal, that the sex crimes report should have been excluded as inadmissible hearsay does not warrant review under the plain error doctrine. “Such review is reserved for truly extraordinary situations where the
Ill
The defendant’s next claim involves the trial court’s admission of certain statements made by D, a rebuttal witness for the state, to the defendant’s parents and to his attorney. D, a friend of the defendant, was a bookkeeper at the nightclub in Old Saybrook that the defendant managed. Her testimony contradicted the defendant’s testimony in several key respects.
According to the defendant, D slept at his apartment occasionally, but never lived there. D testified that she slept in his apartment once a week until his roommate moved out in October, 1988. At that time she moved into the apartment and remained there until June, 1989.
With respect to the incidents surrounding the alleged commission of the crimes, both D and the defendant testified that, on the night in question, the defendant was driving D’s car, which he had borrowed earlier that day. Both stated that the defendant had arrived home early the next morning and returned the car to her. D further testified that, when he had brought her car back, he appeared frightened and nervous and that she had never seen him look like that before.
The defendant cross-examined D by trying to establish that she was a jilted lover whom he had left in April, 1989.
On appeal the defendant makes three challenges to the admission into evidence of D’s statements to defense counsel and to the defendant’s parents. First, he maintains that the trial court’s admission of the statements was improper because the court failed to make a specific finding that the statements were made before D’s alleged bias, interest or motive arose. Second, the defendant claims error in the trial court’s failure to instruct the jury to limit its use of the statements to rehabilitating D’s credibility. Third, the defendant contends that the court’s admission of D’s prior statement to defense counsel unfairly prejudiced him in that it presented inordinate tactical and ethical difficulties for defense counsel to surmount in order to rebut D’s testimony. We find none of these arguments persuasive.
A
With respect to the first argument, we begin by noting that if a witness has been impeached on the basis of bias, motive or interest, prior consistent statements
On cross-examination, the defendant elicited from D that the defendant had “moved out ... on [her]” in April, 1989. Although never explicitly stated, the clear implication of this line of questioning was that the defendant had spurned D when he left the apartment they shared in April, 1989, and that her bias against him had arisen at that time. See footnote 8, supra. D testified that her statements to the defendant’s parents and to defense counsel about the defendant’s odd behavior were made in February or March, 1989. The appropriate sequence was thus established, justifying the admission of the prior consistent statements for the limited purpose of rehabilitating D, whose credibility had been attacked on the basis of bias or motive.
It is of no moment that the trial court failed to make a specific finding that the statements in dispute were made before the alleged bias or motive arose because the record positively establishes this sequence. No such finding is required so long as the record establishes the necessary sequence of events. See State v. Parris, 219 Conn. 283, 287-92, 592 A.2d 943 (1991). In this case the record establishes the necessary sequence of events.
B
The defendant next contends that it was improper for the trial court to fail to instruct the jury that it could
C
The defendant further argues that, even if the court properly admitted D’s prior consistent statement to his parents, it abused its discretion when it allowed her to testify about her prior consistent statement to defense counsel. He claims that the court’s admission of the statement “put counsel in an untenable and unfair position, one fraught with ethical and tactical difficulties.” We conclude that the trial court acted properly in admitting the statement.
As discussed earlier, D’s statement to defense counsel was relevant evidence that came within the prior consistent statement exception to the hearsay rule. As such, it was properly admitted regardless of whether it posed strategic or ethical dilemmas for defense counsel. Defense counsel knew what D had said to him and knew that the state had listed her as a possible witness.
We hasten to add that we are not convinced that defense counsel’s ethical quandary was as desperate as he now portrays it to have been. The only reason he might have appeared as a witness in the case was for the purpose of rebutting D’s testimony that she had spoken to him of the defendant’s peculiar behavior around the time the alleged crimes were committed. Defense counsel represented to the court that his response to D’s testimony would have been, not that she had not made such a statement to him months earlier, but that he had not believed her when she made the statement.
IV
Next the defendant claims that his state and federal constitutional rights to present a defense and to due process of law were violated when the trial court failed to instruct the jury that it could not convict the defendant of sexual assault if the conduct of the complainant under all the circumstances would have justified a reasonable belief that she had consented. Because the defendant failed to request such an instruction or to take exception to the court’s failure to include it in the charge given, he can prevail on his unpreserved claims of constitutional error only if the following four conditions are met: “(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 (1989). Although the first two conditions are met, the third condition is not because the trial court’s failure to give the “reasonable belief” instruction did not deprive the defendant of any constitutional right.
The defendant urges us to convert that language in Smith into a constitutional requirement that a court give such an instruction, even in the absence of a proper request to charge, whenever any sort of consent defense is interposed in a sexual assault case. We need not decide that question, however, because the defendant in this case never advanced a theory of defense that put into issue the reasonableness of his belief that the complainant had consented. Nowhere in the record of
V
The defendant also contends that he was deprived of his state and federal constitutional right to due process of law when the trial court instructed the jury that a reasonable doubt is “a doubt for which if necessary you can give an explanation of to your fellow jurors in the jury deliberation room . . . .” He took no exception to the charge given. We recently rejected an identical claim in State v. Ireland, 218 Conn. 447, 457, 590 A.2d 106 (1991), because we concluded that such an articulation requirement, although improper, did not render an otherwise adequate instruction on reasonable doubt constitutionally defective. Upon review of the entire charge in this case, we arrive at the same conclusion, that the instruction given did not violate the defendant’s constitutional right to due process, and, therefore, reject this claim. See State v. Golding, supra.
The defendant’s final challenge to his conviction is that the trial court’s admission of evidence of his post-arrest silence violated his state and federal constitutional privilege against self-incrimination and his right to due process of law. We conclude that no such violations occurred.
During the state’s cross-examination of the defendant, he was questioned about what had transpired when the police arrived at his home, before they placed him under arrest. He testified that the police had informed him that they were investigating an incident that had occurred in Wallingford and that he had told them he would cooperate with them. He stated that he had admitted being in the Wallingford bar on the night in question and, when asked what he had done after he left the bar that night, he had responded that he went right home.
The state’s attorney then attempted to impeach the defendant’s credibility by reminding him that he had testified on direct that he had had a consensual sexual encounter with the complainant when he left the bar and had not gone directly home. The state’s attorney then asked, “Because you didn’t tell any of this to the police officers, did you?” to which the defendant responded, “No, I did not.” The state’s attorney then began to ask another question, “You never told the police officers at any time that this was—,” but was interrupted by defense counsel’s objection to the question. The trial court sustained the objection on grounds of relevancy and the prohibition announced in Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), against the use of postarrest silence to impeach a criminal defendant’s credibility.
The judgment is affirmed.
In this opinion the other justices concurred.
General Statutes § 53a-70 (a) provides: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person, or (2) engages in sexual intercourse with a person under thirteen years of age.”
General Statutes § 53a-92 (a) (2) (A) provides: “A person is guilty of kidnapping in the first degree when he abducts another person and when . . . he restrains the person abducted with intent to . . . inflict physical injury upon him or violate or abuse him sexually.”
In both instances the defendant said, “You like this, Bitch.”
The stain on the shoe was too small for administration of a definitive blood test. State v. Moody, 214 Conn. 616, 628, 573 A.2d 716 (1990).
General Statutes § 29-7a provides: “The community relations unit of the division of state police within the department of public safety shall study and plan for the establishment and funding of a sex crimes analysis unit which shall be operative on or before October 1, 1976. Said unit shall be responsible for (1) the coordination and analysis of all data regarding complaints and arrests for sex crimes; (2) the development of recommendations from such data concerning the nature, extent and pattern of sex crimes in the state; (3) recommendations with regard to new approaches in law enforcement to improve enforcement in the area of sex crimes to the division of state police, local departments and the public; (4) working with local police departments and rape crisis centers to improve law enforcement of sex crimes and methods of data gathering and (5) the development of education courses for law enforcement officials, judicial personnel and the public concerning preventive measures against sexual assaults, procedures for reporting sex crimes and community resources which are available to combat sex crimes. Each local police department, rape crisis center and any member of the public who deals with data concerning sex crimes shall submit such data to the sex crimes analysis unit in accordance with procedures established by said unit.”
Some of the categories included are: physical descriptions of the offender; the offender’s method of approaching the victim; the nature of the assault; the victim’s method of resistance; the relationship of the offender to the victim; the place where the assault was committed; and the nature of the victim’s injuries.
Practice Book § 4185 provides in pertinent part: “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court.”
The following are relevant portions of the defendant’s cross-examination of D:
“[Defense Counsel]: And you were in love with Mr. Jeffrey, weren’t you?
“[D]: No, I was not.
“[Defense Counsel]: Didn’t you call Mr. Jeffrey’s father and mother down in Florida and tell them you were in love with Robert Jeffrey and that you would always be in love with him?
“[D]: I care about him as a friend. I love him as a friend.
“[Defense Counsel]: But you didn’t say that to Mr. and Mrs. Jeffrey. You said you loved him, didn’t you?
“[D]: It could be taken that way, I suppose, but that’s—I loved him as a friend. •
“[Defense Counsel]: And he didn’t love you back, did he?
“[D]: I don’t know.
“[Defense Counsel]: And he moved out of the apartment on you, didn’t he?
“[D]: He moved out—
“[Defense Counsel]: In June?
“[D]: No. He moved out, I believe it was April. He was there off and on.
“[Defense Counsel]: I have no further questions, your Honor.”
Practice Book § 852 provides: “The supreme 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 exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. Upon request, opportunity shall be given to present the exception out of the hearing of the jury.”
Defense counsel asked the court, “Can I get up in—I mean, in final examination do I get to say, ‘I didn’t believe her?’ ”
Even if defense counsel could have provided relevant testimony as a witness in the case, disqualification of him might not have been required under the third exception listed in Rule 3.7 of the Rules of Professional Conduct. Rule 3.7 provides in pertinent part: “(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where: (1) The testimony relates to an uncontested issue; (2) The testimony relates to the nature and value of legal services rendered in the case; or (3) Disqualification of the lawyer would work substantial hardship on the client.” (Emphasis added.)
That was precisely the theory of defense in Smith, wherein the defendant based this defense on the complainant’s testimony that, after a certain point, she ceased resisting and decided to “give in” and to act as if she were “going to go along with him and enjoy it.” State v. Smith, 210 Conn. 132, 137, 554 A.2d 713 (1989).