207 Conn. 646 | Conn. | 1988
Lead Opinion
The defendant, Bruce E. Rodgers, appeals, after a jury trial, from a judgment of conviction of sexual assault in the first degree in violation of General Statutes § 53a-70 (a)
The jury could reasonably have found that, during the evening of August 14,1980, the defendant agreed to give the victim a ride home in his car, after visiting several bars together. The victim, a fifteen year old female, fell asleep during the ride. She awoke in the car to find the defendant with his hands around her throat, choking her. She thereafter lost consciousness. When the victim regained consciousness, she was alone on the ground in a rocky area that appeared to be a dump. Her neck and rectum were very sore, and her shoes and underpants had been removed and were on the ground nearby. The victim hitchhiked home, arriving at approximately 5:30 a.m., August 15, 1980. She slept throughout much of the day. Thereafter, friends took her to the hospital at approximately 9 p.m. that evening.
Medical experts testified that the victim had sustained a permanent injury to her third cervical vertebra, more commonly known as a broken neck. The
I
The defendant claims on appeal that the trial court erred in permitting Detective Howard Jones of the Waterbury police department to testify to the details of the incident as related to him by the victim. The court admitted this testimony, over the defendant’s objection, under the “constancy of accusation” exception to the hearsay rule.
“This court has recently reaffirmed the traditional rule in this jurisdiction that a witness to whom the victim of a sex-related offense has complained may testify not only to the fact that the complaint had been made but also to its details.” State v. Pollitt, 205 Conn. 61, 76, 530 A.2d 155 (1987). Such testimony is permitted, under this evidentiary rule, to corroborate the victim’s prior in-court testimony concerning the facts of the alleged sexual offense and “to show constancy in the victim’s declarations.” Id.; State v. Dobkowski, 199 Conn. 193, 199, 506 A.2d 118 (1986).
The defendant claims that this exception is inapplicable in the present case because the victim did not directly and expressly testify to the acts perpetrated on her that constituted the sexual assault. Having been strangled to the point of unconsciousness prior to the alleged sexual attack, the victim was able to testify only to the strangulation and to her experience upon regaining consciousness. Specifically, the victim testified that she fell asleep while riding in the defendant’s car with him, that she awoke to find the defendant with his
The victim’s testimony was necessarily limited to a recital of the facts as she experienced them prior to and immediately after her period of unconsciousness. Her inability to describe the events occurring during the interval of unconsciousness, and her concomitant inability, therefore, to articulate a formal accusation of a sexual assault would, according to the defendant’s rationale, deprive the state of the right to present corroborative testimony of what she told others under the constancy of accusation rule. Such a policy would confer a benefit on defendants who render their victims unconscious during sexual assaults, and this act would thereby deprive the state of the ability to present constancy of accusation evidence as to the circumstances surrounding an alleged sexual assault.
Our review of the victim’s testimony convinces us that she did present strong circumstantial evidence that she had been the victim of a sexual assault. “The law makes no distinction as to the probative effect of direct and circumstantial evidence.” State v. Rodgers, supra, 58. We conclude that the victim’s testimony as to the facts of this alleged incident created a strong inference that she had been the victim of a recent sexual assault. Therefore, the trial court properly permitted the introduction of her statements to Detective Jones, even though there was no direct testimony by her of the assault itself.
II
The defendant next claims that the trial court erred in allowing expert testimony on an essential element
“There is no doubt that penetration is an element of the crime of sexual assault in the first degree . . . .” State v. Artis, 198 Conn. 617, 621, 503 A.2d 1181 (1986); see General Statutes § 53a-65 (2). Whether penetration did occur is a question of fact for the jury, and the state is required to establish penetration beyond a reasonable doubt. State v. Artis, supra.
As to the admissibility of the doctor’s expert opinion on this issue, “[t]he trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions.” State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986). “Generally, 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.” Id. The doctor’s opinion testimony readily meets this test. First, as a specialist in obstetrics and gynecology, he possessed a knowledge and skill directly relevant to the anatomical area of the injury. Second, the probable cause of a perineal fissure is not obvious as a matter within the common knowledge of the average person. Expert testimony as to the degree of force and the nature of the object required to bring about such
Further, the doctor’s testimony that the injury was consistent with rape by rectal penetration did not usurp the factfinding function of the jury. See State v. Kemp, supra, 477-78. Although the doctor expressed his opinion as to the most likely cause of the victim’s injury, he also testified on cross-examination that the medical evidence did not conclusively establish that rape by rectal penetration had occurred. Moreover, he conceded that the injury could have been inflicted as a result of falling or being thrown forcefully against a small hard object such as a rock or table corner. Thus, it was left to the jury to determine whether penetration had indeed occurred; General Statutes § 53a-65 (2); whether it had been achieved by the use of force or the threat of the use of force; General Statutes § 53a-70; and whether the defendant was the perpetrator.
We conclude, therefore, that the doctor’s testimony was admissible as expert opinion testimony, that it did not invade the province of the jury to determine the ultimate issue and that the trial court properly admitted the challenged testimony.
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 state argues that the defendant’s claim is not reviewable because it has not been properly preserved for appellate review. We agree.
The defendant “took none of the appropriate measures to alert the trial court to a potential problem . . . .” State v. Williams, 204 Conn. 523, 535, 529 A.2d 653 (1987). At trial, the defendant did not object to the remarks now complained of nor did he move for a mistrial on the basis of these remarks. The defendant concedes that this claim was not properly preserved for appeal, but nonetheless seeks review of this issue under the “exceptional circumstances” doctrine of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973),
The defendant relies on a line of cases where we have reviewed claims of prosecutorial misconduct under State v. Evans, supra. In those cases where we have engaged in Evans review, the record has disclosed a pattern of repeated, strident and serious misconduct.
The record in this case does not adequately support a claim of a clear deprivation of the right to a fair trial. The challenged remarks
The defendant’s final claim is that the evidence presented at trial was legally insufficient to support his convictions. This claim includes two separate challenges: (1) that the evidence of penetration was insufficient to sustain his conviction of sexual assault in the first degree; and (2) that under the facts of this case, the same use of force could not form the basis of charges of both first degree sexual assault and attempted murder.
The defendant presented both of these claims in his appeal of his first convictions. State v. Rodgers, supra, 60-67. We reviewed both of these claimed errors at that time and decided both of them against the defendant. Id. As to the first issue, the defendant contends that our prior holding is not dispositive of this appeal. The defendant asserts that the expert testimony on the issue of penetration presented in his second trial “was very different” from that presented at his first trial. Our review of the record convinces us otherwise. The same experts, a gynecologist and a forensic toxicolo
The second aspect of this claim stems from the unique factual circumstances of this case. The defendant contends that the same application of force cannot be relied on to support convictions for both attempted murder and sexual assault. The defendant bases this claim on his assertion that he could not simultaneously have possessed the requisite intent to kill his victim and also to compel her to submit to sexual intercourse.
We first observe that the defendant did not raise this claim at trial. The defendant argues that this issue was “brought to the attention of the trial court at sentencing,” but, recognizing that this is insufficient to preserve the claim for substantive appellate review, seeks review instead under the “exceptional circumstances” doctrine of State v. Evans.
Even were we to grant the review the defendant seeks, our resolution would be governed by our prior ruling in State v. Rodgers, supra. The defendant raised this identical issue in his earlier appeal, and we stated: “Even if we were to accept the defendant’s argument that in strangling his victim he could not simultaneously have intended to commit both murder and sexual assault in the first degree, he would not prevail. On the facts of this case, it was not necessary that the defendant intended to sexually assault his victim as he strangled her. It is enough that after having caused her to lose consciousness by breaking her neck, he did commit the sexual assault. We conclude that the trial court properly refused to instruct the jury that the defend
There is no error.
In this opinion, Peters, C. J., and Callahan, J., concurred.
General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person . . . .”
General Statutes § 53a-49 (a) (2) provides: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required
General Statutes § 53a-54a provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person. . . .”
“Only in most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court.” State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973).
Practice Book § 4185 provides in relevant 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.”
In State v. Williams, 204 Conn. 523, 544 n.7, 546, 529 A.2d 653 (1987), the assistant state’s attorney referred to the defendant in a child abuse case as a “savage,” “baby-beater,” “infant-thrasher,” and “drunken drug-user, convicted felon, child beater.” These quotations are only examples
In State v. Pelletier, 196 Conn. 32, 490 A.2d 515 (1985), a companion case to State v. Couture, 194 Conn. 530, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985), the prosecutor’s summation included repeated references to one or both of the defendants as “despicable coward[s],” “murderous fiends,” “rats,” “utterly merciless killers,” and “inhumane, unfeeling and reprehensible creatures.” State v. Couture, supra, 561 and n.17.
The following is a sampling of the challenged remarks, characterized by the defendant as: (1) the prosecutor’s expression of his personal opinion of the defendant’s guilt: “[the victim] and the facts point to the defendant’s guilt because he is guilty and for no other reason”; “The proof in this case and everyone in this case points to the defendant, the fact that the defendant is guilty for the sole reason that the defendant is, in fact, guilty”; “So, we know, from those facts, proven beyond a reasonable doubt, that the defendant is, in fact, guilty of sexual assault in the first degree . . . ”; “I think the evidence is overwhelming that the defendant is guilty of both
Dissenting Opinion
dissenting in part. I disagree with part I of the opinion and would order a new trial on the charge of sexual assault in the first degree.
The defendant’s claim on the issue raised in part I is that the trial court “erred in allowing [the] ‘constancy of accusation’ testimony in this case where the alleged victim of the sexual assault had no personal knowledge whatsoever of the alleged sexual assault and did not in fact ever make any accusations of sexual assault.”
There appears to be no real question about the following evidence. On the night of the alleged attack, the victim performed as a dancer at a stag party to which she had been taken by her employer, his wife and another man. After that party, she went to a bar in Plymouth with her employer, his wife and the other man. In that bar, she had several drinks with the
The next thing the victim said that she remembered was that she had been awakened by the defendant strangling her and that the defendant had asked her where her friends were and how were they going to help her. She then lost consciousness. When she awoke later, she found herself outside somewhere, alone. Her neck and rectum were very sore. She found her shoes, purse and underwear a few feet away. She put her underwear back on and then tried to find help and find her way home.
Although she saw two individuals walking by, she did not tell them what had happened but did ask them for directions. She hitchhiked a ride, told the unidentified driver what had happened and she received a ride home.
Upon ariving home at 5:30 a.m., she removed her clothes and went to bed. She did not think to go to the hospital, she did not bathe or shower and she did not think to awaken her roommate to tell her what had happened. Upon awakening at about 11 a.m., she talked to her roommate but did not tell her what had happened at that point. She went back to sleep and awoke later in the afternoon. When she awoke again, her roommate’s brother was there and he asked her what had happened when he saw her “injuries.” She told him and went back to sleep again. She awoke again about dinner time, and her roommate, who was there, said they
At the hospital, she told the people there what had happened to her. She testified at trial that she never told the people at the hospital or anyone else that she had been sexually assaulted. She also testified that she had no personal knowledge of whether she had been sexually assaulted or what caused her rectal pain. While in the hospital, the police interviewed the victim three times over a two day period. Detective Howard Jones was the officer who had interviewed the victim those three times in the hospital and who took her written statement.
The state presented the testimony of three doctors at the trial. One was an orthopedic surgeon whose testimony did not involve the alleged sexual assault but dealt with her strangulation. Another was a gynecologist who had examined her in the emergency room. During his rectal examination, he discovered a fissure about one half centimeter deep and three and one-half centimeters long which extended for about one centimeter into the anus. He testified that in his opinion the fissure would “probably come from a very sharp or rather quick punch or blow” and that the injury was consistent with rape, specifically with rectal penetration. The third doctor was a neurosurgeon who had not examined the victim but who had reviewed her medical records. His testimony concerned her neck injury and did not concern the alleged sexual assault.
Detective Jones testified for the state and his testimony was allowed over objection on the ground that it was admissible specifically on the constancy of accu - sation exception. His testimony included the details stated to him by the victim during each of his three interviews with her.
To accept the defendant’s claim of error here, the state argues, would mean that victims of sexual assault, who are rendered unconscious just prior to the offensive act, could never utilize the constancy of accusation exception to rebut the suggestion of recent fabrication. In my view, the trial court erred when it admitted this testimony in this case under the constancy of accusation exception to the hearsay rule.
“In sex-related crime cases, we have long recognized that a witness, to whom a victim has complained of the offense, could testify ‘not only to the fact that a complaint was made but also to its details.’ State v. Segerberg, 131 Conn. 546, 549, 41 A.2d 101 (1945). See State v. Greene, 161 Conn. 291, 294, 287 A.2d 386 (1971); State v. Gelinas, 160 Conn. 366, 367, 279 A.2d 552 (1971); State v. Purvis, 157 Conn. 198, 207, 251 A.2d 178 (1968), cert. denied, 395 U.S. 928, 89 S. Ct. 1788, 23 L. Ed. 2d 246 (1969); State v. Dziob, 133 Conn. 167, 169, 48 A.2d 377 (1946); State v. Orlando, 115
In this case, the victim never complained to anyone of being sexually assaulted and she did not so testify. It was therefore error to admit, in contravention of our decided cases, this testimony on the ground of constancy of accusation. Moreover, to do so in this case
I disagree with the majority’s view that this victim’s inability to describe the events that occurred during the interval of her unconsciousness and her concomitant inability “to articulate a formal accusation” would, if the defendant’s claim prevailed, “deprive the state of the right to present corroborative testimony.” The majority goes on to state: “Such a policy would confer a benefit on defendants who render their victims unconscious during sexual assaults, and this act would thereby deprive the state of the ability to present constancy of accusation evidence as to the circumstances surrounding an alleged sexual assault.” I cannot accept this position of the majority. What testimony of the victim as to the outrage allegedly committed upon her by this defendant, which is the predicate of our constancy of accusation rule under our decisions, is there in this case? The majority points to none because there is none. Next, with reference to the “policy” that we would be announcing, it seems to me that the state has no right to submit any such evidence under this exception unless we are henceforth assuming that where such a victim cannot testify so as to lay the foundation for the constancy exception, such evidence will come in accordance with the revision of the constancy rule announced
Therefore, I dissent and would order a new trial only on the charge of sexual assault in the first degree.
The defendant was convicted not only of the crime of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) but also of the crime of attempted murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a (a). He was sentenced to a term of ten to twenty years on each count to be served consecutively for an effective sentence of imprisonment of not less than twenty years and not more than forty years.
Dissenting Opinion
dissenting in part. Although I agree with the remainder of the opinion, I disagree with the view of the majority expressed in the second portion of part IV of the opinion that the evidence in this case was sufficient to sustain the defendant’s conviction for both attempted murder and first degree sexual assault.
The failure of the defendant seasonably to raise his claim of insufficiency does not preclude review pursuant to State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), because we have held that such a claim involves a fundamental constitutional right and, therefore, falls within the exception. State v. Maselli, 182 Conn. 66, 70, 437 A.2d 836 (1980), cert. denied, 449 U.S. 1083, 101 S. Ct. 868, 66 L. Ed. 2d 807 (1981).
On the merits of the claim, I continue to adhere to the belief that a defendant who uses force upon a victim for the purpose of murdering her, as required for attempted murder, cannot concurrently intend to use such force in order to compel the victim to have sexual intercourse with him as required for first degree sexual assault. “A person who renders his victim uncon
State v. Usry, 205 Conn. 298, 533 A.2d 212 (1987), upon which the majority opinion relies, is distinguishable because there the defendant was convicted of capital felony by virtue of “murder committed in the course of the commission of sexual assault in the first degree” in violation of General Statutes § 53a-54b (7), felony murder “when . . . he committed] . . . sexual assault in the first degree . . . and, in the course of and in furtherance of such crime or of flight therefrom, he . . . cause[d] the death of a person” in violation of General Statutes § 53a-54c, and murder “when, with intent to cause the death of another person, he cause[d] the
In the present case the evidence that the defendant choked the victim until she became unconscious with the intention of murdering her, as the jury found, is consistent only with an intention to have intercourse with her dead body, constituting the crime of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (3).
Accordingly, I dissent from the portion of the judgment convicting the defendant of sexual assault in the first degree.