208 Conn. 365 | Conn. | 1988
In November, 1985, the defendant was tried by a jury on a four count information charging him with kidnapping in the second degree in violation of General Statutes § 53a-94,
The jury could reasonably have found that on April 1, 1985, the complainant drove to New Haven from her parent’s home in New Jersey to visit friends, and spent the night with her boyfriend at Yale University. The previous year she had been a student at the university. On April 2, at about 6 a.m., she left her boyfriend’s room, planning to drive to her place of employment in New Jersey. Her car was parked in a nearby parking lot. As she walked toward her car the defendant began to follow her, and when she reached her car and turned around, he was standing next to her. The defendant told her that his name was Pete, that she was pretty, and that he wanted her to be his girlfriend. While repeatedly putting his hand in his pocket he told her that he had a knife and could make her do whatever he wanted. He asked her if she had any money and she gave him ten dollars, hoping that he would then leave
The complainant drove the car to a stoplight near the exit of the parking lot. At that point the defendant ordered her to let him drive. They changed seats and he drove the car to the area of the Yale-New Haven Hospital where he stopped in front of a house. He stated that he lived there and wanted to go inside, but could not find a parking space. He stopped the car in the driveway next to the house and forced the complainant to perform fellatio. Afterwards, as the defendant was driving around, the complainant persuaded him to stop at a pay telephone because she had told him that if she did not arrive at work on time, her employer would come looking for her. The complainant intended to call the police, but the defendant followed her to the telephone. She called her boyfriend’s room and spoke with his roommate. After hanging up she asked the defendant for permission to make another call, but the defendant became angry and told her to get back into the ear, saying “No more phone calls.”
Because she was afraid of the defendant the complainant got back into the car,' but jumped out at the next traffic light and ran along the street toward Yale-New Haven Hospital. The defendant followed her in the car and then on foot. When he caught her he stated, “Nobody ever runs away from me,” and then pinned her against a wooden wall surrounding a construction site, kissed her and touched her breasts and inner thighs.
Officer Hilda Kilpatrick responded to Bougourd’s call. She interviewed the complainant as well as Bougourd and then broadcasted on the police radio a description of the defendant, the complainant’s car and its license number. Soon thereafter, another police officer observed the defendant at the parking lot where the complainant had parked her car overnight, stopped him, patted him down and found the complainant’s car keys in his pocket. The complainant and Bougourd were brought to the parking lot and they both identified the defendant as the person from whom the complainant had escaped. The defendant was arrested.
I
The defendant first claims that the trial court erred in closing the courtroom in violation of his constitutional right to a public trial. Prior to trial, on November 7, 1985, the state moved, pursuant to General Statutes § 54-86f
As a threshold issue we must determine whether the defendant’s closure claim is reviewable. Under § 54-86f, evidence of prior sexual misconduct is “admissible only after a hearing on a motion to offer such evidence containing an offer of proof.” In anticipation of the defendant’s motion to put in issue the complainant’s prior sexual conduct, the state exercised its right to have such a hearing held in camera. A hearing held pursuant to § 54-86f is subject to the provisions of General Statutes § 51-164x which provides that “[a]ny person affected by a court order which prohibits any person from attending any session of court . . . shall have the right to appeal such order by filing a petition for review with the appellate court within seventy-two
This statutory right to an expedited review of a closure order provides immediate protection of a defendant’s right to a public trial. While the record indicates that the defendant objected to the closure order, it also indicates that he failed to pursue the statutory remedy provided by the legislature to challenge the validity of the order. We recognize that “[t]he failure to provide a public trial deprives the defendant of a fundamental constitutional right and the public of access to an open judicial forum.” State v. Sheppard, 182 Conn. 412, 418, 438 A.2d 125 (1980); State v. Frazier, 185 Conn. 211, 230-31, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982). Since the record does not reflect any justifiable reason for the defendant’s failure to pursue the statutory remedy of an expedited appeal, we would ordinarily decline to review the claim that the trial court erred in ordering closure. “A statute which provides that a thing shall be done in a certain way carries with it an implied prohibition against doing that thing in any other way.” State ex rel. Barlow v. Kaminsky, 144 Conn. 612, 620, 136 A.2d 792 (1957). The defendant’s claim, however, raises an issue of constitutional dimension and we find that it comes within one of the exceptions in State v. Evans, 165 Conn. 61, 65, 327 A.2d 576 (1973). “We refer to that situation delineated in Evans which allows review where the record, as here, is .sufficiently complete for us to consider the claims on the merits and the claims involve a fundamental constitutional right.” State v. Godek, 182 Conn. 353, 356, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981).
In the present case, the court granted the state’s motion for a closed rape shield hearing and stated: “Obviously, in light of the Legislature’s adoption of the Statute, the policy which they are trying to pursue . . . the rights that they are trying to protect are best served by a hearing in camera and could well be damaged without a.hearingin camera.” The trial court
At the closed hearing on November 14,1985, the evidence presented consisted principally of the complainant’s testimony. She testified that in February, 1984, during her freshman year at Yale University, she was walking back to her dormitory one night when she was approached by someone who dragged her into an alley and sexually assaulted her with a razor blade. She was cut on the breast and thighs and the razor blade was placed in her vagina. Ultimately, Walter Bolivar was arrested and charged with sexual assault and unlawful restraint. After a public jury trial he was acquitted. At his trial Bolivar asserted an alibi defense and he and his girlfriend testified in support of that defense. The defendant Kelly sought to examine the complainant about the Bolivar incident, in order to compare it with the circumstances of the charges against him, and to have Bolivar and his girlfriend testify that the February, 1984 incident did not occur.
In its argument in support of closure the state directs attention to the evidence about the Bolivar incident.
We conclude, on the basis of the record, that the November 7 closure order was improper. Ordinarily, this case would be returned to the trial court for a Waller type hearing. Because, however, the defendant claims that the court erred in excluding from his trial the evidence that was considered at the closed hearing, the admissibility of the excluded evidence will be considered in this appeal. Only if the excluded evidence is found to be admissible is a new trial required. The admissibility of this evidence will be addressed in the following discussion.
II
The defendant’s second claim is that the trial court erred in the blanket exclusion of evidence bearing directly on the complainant’s credibility, state of mind, powers of perception and recollection, prior complaints and on going psychological problems, in violation of his rights to confront his accuser, to present a defense and to due process. This claim is related to the defendant’s third claim that the trial court erred in denying him access to all records concerning the complainant’s psychiatric problems, rape crisis counseling, and her testimony in the Bolivar case, and to all other records relating to that case, in violation of his rights of due process, confrontation and compulsory process under the state and federal constitutions. Essentially, the defendant claims that the trial court erred in excluding from the trial the testimony given by the complainant at the closed hearing.
There is no dispute that in the adversarial setting of a trial, the accused has a right under the confrontation clause “to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, [can] appropriately draw inferences relating to the reliability of the [State’s] witness.” Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Ouellette, 190 Conn. 84, 101-103, 459 A.2d 1005 (1983). It is also undisputed that the accused has an equal right under the compulsory process and due process clauses “to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so that it may decide where the truth lies.” Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967).
The defendant argues that “[t]he jury was exposed to the full force of the State’s case against Defendant, presented largely through the testimony of a complainant who enjoyed all means of advantage over Defendant, and who was articulate, extremely intelligent, equipped with matter of fact explanations for even the most bizarre of circumstances, experienced at testifying, and blessed with a surface veneer of sincerity, polish and utter normality.” To counteract the complainant’s appearance of “utter normality,” the defendant sought access to the records of the Bolivar case, and the right to obtain and use the transcript in that case in the examination and cross-examination of the complainant. Additionally, the defendant sought to present as witnesses Walter Bolivar and his alibi witness for the testimony that Bolivar was acquitted of the charge. The evidence was excluded as irrelevant.
It is well settled that “[i]n exercising the right to present witnesses in his own defense, the defendant
“ ‘As a general principle, evidence is relevant if it has a tendency to establish the existence of a material fact. “ ‘ “One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable.” ’ ” State v. Lombardo, 163 Conn. 241, 243, 304 A.2d 36 (1972).’ State v. Mastropetre, supra, 517.” State v. Cassidy, 3 Conn. App. 374, 383, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985).
The record reveals no facts that warrant importing the evidence from the Bolivar trial into this case. The . fact that Bolivar was acquitted is of no probative value in this case. This is particularly true since Bolivar asserted an alibi defense. It is impossible to determine why he was acquitted by the jury. If speculation is to be indulged, however, it is plausible that the jury accepted Bolivar’s alibi. The jury could have believed
Moreover, it must be remembered that the complainant is the victim in this case. “The relevant conduct was that between the defendant and the victim. Unless she had raised a false claim before, her conduct with another man had no bearing on her conduct with this defendant or on the credibility of her testimony in this case.” State v. Cassidy, supra, 382. There is no evidence, nor has the defendant proffered any evidence, that the complainant was not sexually assaulted as she claimed in the Bolivar case. Like the trial court, we agree that the Bolivar testimony was irrelevant to this case. Since the trial court properly excluded the proffered testimony of Bolivar and his alibi witness, there was no error in denying the defendant access to the Bolivar trial transcript. Furthermore, our resolution of this issue leads us to the conclusion that although the trial court erred in ordering closure, such error was harmless. The testimony that the defendant sought to have set forth in a public forum was ruled irrelevant and was not considered by the jury.
B
In addition to her testimony regarding the Bolivar case, the complainant testified at the closed hearing
Pursuant to the defendant’s subpoenas and supplementary requests for discovery, numerous documents relating to the complainant’s psychiatric therapy and counseling following the Bolivar case were entered as sealed court exhibits. The defendant argued that “he was not only seeking materials revealing inconsistencies or blatant falsehoods, but also material relating to [the complainant’s] psychological instability, alterations and embellishment of recollection over time, distortions of reality, misperceptions of words and actions of others, psychological needs and problems with respect to interpersonal relations, preoccupation with sexual issues, symptoms of hysterical personality disorder, and gaps, discrepancies or other evidence of unreliability with respect to [the complainant's] account in the Bolivar case.” The complainant waived the applicable privileges for the limited purpose of allowing an in camera inspection of her records by the trial court. The trial court took a recess, examined the exhibits in camera, and thereafter reconvened court and denied the defendant access to the exhibits.
In State v. Storlazzi, supra, 459, we stated that “[t]he linchpin of the determination of the defendant’s access to the records is whether they sufficiently disclose material ‘especially probative of the ability to “comprehend, know and correctly relate the truth” ’; United States v. Lindstrom, 698 F.2d 1154, 1165-66 (11th Cir. 1983); so as to justify breach of their confidentiality and disclosing them to the defendant in order to protect his right of confrontation. As in the case of admissibility of such records, access to records bearing on ‘the mental unsoundness of a witness (i.e., relating to a trait importing in itself a defective power of observation,
Applying the standards of Storlazzi, our examination of the record fails to “sufficiently disclose material ‘especially probative of the [complainant’s inability] to “comprehend, know and correctly relate the truth .....” ’ ” Id., 451. During the course of the extensive cross-examination of the complainant, the defendant was able to show to the jury several gaps, omissions and contradictions in her testimony. Many of the gaps, omissions and contradictions were the complainant’s deliberate efforts to avoid embarrassment and are not probative of her ability to comprehend, know and correctly relate the truth so as to warrant a breach of the confidentiality of her privileged records by disclosing them to the defendant.
We recognize that the documents subpoenaed by the defendant were not in the possession of the state’s attorney, nor were the documents examined by the state’s attorney or the defendant. Nonetheless, the rationale of Pennsylvania v. Richie, 480 U.S. 39, 59, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987) (prosecutor’s decision on disclosure is final unless defendant becomes aware, after he has made a general request for excul
Ill
Next, the defendant claims that the trial court erred in denying his motions to strike testimony and for a judgment of acquittal and his request to give an adverse inference instruction based on the destruction of the complainant’s statement to the New Haven police.
The complainant testified that she initially reported this incident to Officer Hilda Kilpatrick at the YWCA. Kilpatrick took her to the parking lot where her motor vehicle was parked, and there she and Patricia Bougourd identified the defendant. The complainant was then taken to the New Haven police station where she gave a formal taped statement to Officer Winkler Christensen. The complainant was told that the statement would be typed and that she would have to come back at a later date to sign the statement. In this statement the complainant failed to mention that the defendant had forced her to perform fellatio. She testified that she omitted this information because of embarrassment and fear.
The complainant also testified that diming the month of April, 1985, she attempted to contact Christensen several times by calling the police station, and that he was never in when she called. On April 29, 1985, she went to the police station, reviewed and signed her typewritten April 2, 1985 statement. She noticed the omission of fellatio from the statement and that she had failed to include in her statement the facts that: (1) she had made a telephone call to her boyfriend’s
In November, 1985, when the complainant met with the assistant state’s attorney to prepare for trial, it was discovered that the second statement had never been forwarded to his office. The assistant state’s attorney also learned that neither the tape nor the transcript could be found despite a diligent search by the police. The complainant gave a physical description of the officer who took her statement, but none of the officers resembling her description remembered taking the statement. Defense counsel was notified of the loss of the statement. At the request of defense counsel, the missing statement was reconstructed as accurately as possible. On November 8, 1985, Detective Mary Fish retraced the route that the complainant stated the defendant took in her car on the date of the incident.
At the trial the defendant conducted an extensive cross-examination of the complainant, developing gaps, inconsistencies and omissions in her various statements. After argument, the trial court denied the defendant’s motion to strike the complainant’s testimony or dismiss
“This court has considered similar claims involving the loss of a witness’s tape-recorded statement in several recent decisions. See State v. Milum, 197 Conn. 602, 500 A.2d 555 (1985); State v. Myers, [193 Conn. 457, 479 A.2d 199 (1984)]; State v. Shaw, 185 Conn. 372, 441 A.2d 561 (1981), cert. denied, 454 U.S. 1155, 102 S. Ct. 1027, 71 L. Ed. 2d 312 (1982). In those cases we employed a balancing test whereby the imposition of sanctions for nondisclosure ‘ “depends in large measure upon the extent of the Government’s culpability for failure to make disclosable material available to the defense, on the one hand, weighed against the amount of prejudice to the defense which resulted, on the
other.” ’ State v. Shaw, supra, 386, quoting United States v. Miranda, 526 F.2d 1319, 1329 (2d Cir. 1975), cert. denied, 429 U.S. 821, 97 S. Ct. 69, 50 L. Ed. 2d 82 (1976); see also State v. Milum, supra, 617; State v. Myers, supra, 467. Since there exists no constitutional right of access to the statements of a witness for the prosecution, the burden of showing prejudice rests with the defendant. State v. Vessichio, 197 Conn. 644, 662, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986); State v. Milum, supra, 616.” State v. Mullings, 202 Conn. 1, 7-8, 519 A.2d 58 (1987).
On cross-examination of the complainant, the defendant questioned her extensively about her first statement given on April 2, 1985, and the statement, given on November 8,1985, reconstructing the lost May 3,1985 statement. Additionally, the defendant examined Kilpatrick, Christensen and Fish about the statement that each officer had taken from the complainant. The cross-examination of the complainant and the cross-examination and direct examination of the officers who had taken statements from the complainant were unrestricted. We note that there is no claim that the trial court in any way restricted cross-examination of the complainant or the presentation of witnesses by the defendant with respect to this aspect of the case.
Thus, we find that the defendant has not met his burden of showing prejudice by the failure of the trial court
IY
Finally, the defendant claims that the trial court erred in denying his motion for judgment of acquittal on the larceny count in which he was charged with theft of the complainant’s motor vehicle. The defendant challenges the sufficiency of the evidence to meet the requirement that the state prove the elements of the crime charged beyond a reasonable doubt.
The jury was presented with the following evidence in support of the larceny charge: (1) the complainant’s testimony that the defendant took possession of her vehicle and drove off with it; (2) a police officer saw the defendant at the parking lot walking away from the complainant’s vehicle after the assault had occurred; and (3) the complainant’s car keys were found in the defendant’s pocket. “Each essential element of the crimes charged must be proved beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Though the jury may ‘draw reasonable, logical inferences from the facts proven, [it] may not resort to speculation and conjecture.’ State v. Saracino, 178 Conn. 416, 419, 423 A.2d 102 (1979). ‘ “Where it cannot be said that a rational trier of fact could find guilt proven beyond a reasonable doubt, then, a conviction cannot ‘constitutionally stand,’ as it is violative of due process under the fourteenth amend
While the evidence in this case was substantially circumstantial, it was nonetheless sufficient, if believed by the jury, to support a verdict of guilty of larceny in the second degree as charged. “[T]here is no legal distinction between direct and circumstantial evidence so far as probative force is concerned.” State v. Haddad, supra, 390. “ ‘In reviewing the sufficiency of the evidence this court must construe the evidence in the light most favorable to sustaining the verdict; State v. Ferrell, 191 Conn. 37, 46, 463 A.2d 573 (1983); and then determine whether the jury “could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.” State v. Jackson, 176 Conn. 257, 262, 407 A.2d 948 (1978); see State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984).’ State v. Cimino, 194 Conn. 210, [211,] 478 A.2d 1005 (1984). ‘ “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U.S. [356, 362, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972)].” (Emphasis in original.) State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983), quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).’ State v. Morrill, 197 Conn. 507, 512, 498 A.2d 76 (1985).” State v. Brown, supra,
There is no error.
In this opinion Healey, Shea and Hull, Js., concurred.
Callahan, J., concurred in the result.
“[General Statutes] Sec. 53a-94. kidnapping in the second degree: class B felony, (a) A person is guilty of kidnapping in the second degree when he abducts another person.
“(b) Kidnapping in the second degree is a class B felony.”
General Statutes § 53a-134 (a) (3) provides: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... (3) uses or threatens the use of a dangerous instrument.”
General Statutes (Rev. to 1985) § 53a-123 (a) (1) provides: “A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and: (1) The property consists of a motor vehicle, the value of which is two thousand dollars or less.”
“[General Statutes] Sec. 53a-73a. sexual assault in the fourth degree: class a misdemeanor, (a) A person is guilty of sexual assault in the fourth degree when ... (2) such person subjects another person to sexual contact without such other person’s consent.”
At the time of the offense on April 2,1985, the rape shield statute, General Statutes § 54-86f, provided: “admissibility of evidence of prior sexual conduct. In any prosecution for sexual assault under sections 53a-70, 53a-70a, and 53a-71 to 53a-73a, inclusive, no evidence of the prior sexual conduct of the victim may be admissible unless such evidence is (1) offered by the defendant on the issue of whether the defendant was, with respect to the victim, the source of semen, disease, pregnancy or injury, or (2) offered by the defendant on the issue of credibility of the victim, provided the victim has testified on direct examination as to his or her prior sexual conduct, or (3) evidence of prior sexual conduct with the defendant offered by the defendant on the issue of consent by the victim, when consent is raised as a defense by the defendant, or (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate
In Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984), the trial court, in the absence of statutory authority, ordered closure of a pretrial suppression hearing over the objection of the defense. After the hearing and trial, the defendant was acquitted of some charges and convicted of others. The Georgia Supreme Court affirmed the convictions. After determining the closure order was issued without findings and was too broad, the United States Supreme Court reversed and remanded the case for a determination by the state court of what portions, if any, of the suppression hearing may be closed, followed by a new suppression hearing and a new trial if the hearing results in the suppression of material not suppressed at the first trial.
We distinguish this case from State v. Sheppard, 182 Conn. 412, 438 A.2d 125 (1980), where we found error and ordered a new trial. In Sheppard, the public had been excluded during the testimony of the two complaining witnesses pertaining to the charges against the defendant. In this case the public was not excluded during the complaining witness’ testimony pertaining to the offenses for which the defendant was charged. Rather, the public was excluded from hearing the complaining witness testify regarding matters the court determined to be inadmissible evidence. Absent the
“[Practice Book] Sec. 755.--FAILURE TO COMPLY WITH ORDER
“If the prosecuting authority elects not to comply with an order of the judicial authority to deliver to the defendant any statement of a witness who has testified or such portion thereof as the judicial authority may direct, the judicial authority shall strike from the record the testimony of the witness, and the trial shall proceed unless the judicial authority, in his discretion, upon motion of the defendant, determines that the interests of justice require that a mistrial be declared.”