Demers v. State

• Decision Date: 13 September 1988
• Docket Number: No. 13336,13336
• Citation: 209 Conn. 143,547 A.2d 28
• Court: Connecticut Supreme Court
• Parties: Mark DEMERS, et al. v. STATE of Connecticut.

Page 28

547 A.2d 28

209 Conn. 143

Mark DEMERS, et al. v. STATE of Connecticut.

No. 13336.

Supreme Court of Connecticut.

Argued May 31, 1988.

Decided Sept. 13, 1988.

Edward T. Ricciardi, Asst. State's Atty., with whom, on the brief, was John A. Connelly, State's Atty., for appellant (respondent).

Todd D. Fernow, Hartford, with whom was Charles E. Oman, III, Waterbury, for appellees (petitioners).

Before PETERS, C.J., and SHEA, CALLAHAN, COVELLO and HULL, JJ.

CALLAHAN, Associate Justice.

The state has filed the instant appeal from a judgment of the trial court granting the petition of Mark Demers and William J. Corcoran, Jr., for a new trial pursuant to General Statutes § 52-270 ¹ and Practice Book § 902. ² In a joint trial, Demers and Corcoran previously had been convicted of sexual assault in the first degree in violation of General Statutes § 53a-70(a), robbery in the second degree in violation of General Statutes § 53a-135(a), and unlawful restraint in the first degree in violation of General Statutes § 53a-95(a). ³ In ruling on the petition, the trial court found that the state had failed to disclose to the petitioners, at or prior to their trial, the existence of exculpatory information concerning the victim's prior arrest for prostitution contained in a Waterbury police department report. The trial court determined that, upon reasonable inquiry, the state should have discovered the information in the report and should have disclosed it to the petitioners, and that the information would have had a "significant impact on the credibility of [the alleged victim] for it directly controverted her sworn testimony that she was not a 'hooker' and had never participated in sex for money." As a result of its findings, the trial court granted the petition for a new trial. Thereafter, the state filed the instant appeal in the Appellate Court. The appeal was transferred to this court pursuant to Practice Book § 4023.

The principal issue on appeal is whether the trial court abused its discretion in granting the petition for a new trial. The state argues that it did because the trial court erred in basing its conclusion that the petition should be granted on the finding of a Brady-Agurs violation. The state claims that there was no Brady-Agurs violation because: the information regarding the victim's prior arrest for prostitution was not suppressed, but rather was known to or should have been discovered by the petitioners themselves prior to trial; the information was not admissible evidence and was neither exculpatory nor material; and the information was also inadmissible as evidence of sexual assault in the first degree because it was barred by Connecticut's rape shield statute, General Statutes § 54-86f. ⁴ We find no error.

Prior to addressing the substantive issues of this appeal, it is first necessary to summarize briefly the state's version and the petitioners' version of the events of March 13, 1982, which led to the arrest and conviction of the petitioners. ⁵ At trial, the victim of the petitioners' alleged criminal conduct testified to the following. At approximately 2:50 a.m. on March 13, 1982, she was walking on North Main Street in Waterbury hitchhiking to the Berkeley Heights housing project to buy narcotics when a car containing the petitioners stopped next to her. The petitioners asked the victim if she knew where they could get marihuana and she indicated that they could probably get some up at Berkeley Heights. The petitioners then offered the victim a ride to her destination. Initially, she accepted but then reneged upon realizing that she would have to sit in the back seat of the two-door car or between the two men. When, however, Demers agreed to go to the back seat, the victim entered the car. After the victim entered the car, the petitioners, without informing the victim, deviated from her stated destination and drove to a parking lot next to a building known as the "Ponte Club." While en route, the petitioners told the victim that they wanted to party and requested that she perform oral sex for which they promised to pay her. The victim responded by informing the petitioners that she was forty years old and was not a "party girl" or a "hooker." The petitioners, however, forced the victim to engage in oral sex with both of them and to engage in vaginal intercourse with Corcoran, after which she was punched in the face by Corcoran and robbed of her money. The victim subsequently managed to escape and hide in nearby woods until the petitioners drove away. She then ran to a house close by to seek help. There she was admitted by the woman of the house who called the police after being told by the victim that she had just been raped.

In their testimony at trial, the petitioners recited a significantly different version of what had occurred on March 13, 1982. Both testified that while stopped at a traffic light at the corner of North Elm Street, Cherry Street and the North Square, the victim approached their car and propositioned them, soliciting $15 for oral sex and $20 for intercourse. In response to the victim's proposition, the petitioners claim that each gave her $15, that she got into their car and that she directed them to the parking area at the "Ponte Club." Upon arriving at the parking area, Demers exited the vehicle and the victim proceeded to engage in oral and vaginal intercourse with Corcoran. Thereafter Corcoran exited the car, Demers entered and the victim performed oral sex upon him. The victim then exited the car and engaged in an argument with Corcoran about giving her a ride back to North Main Street. Subsequently, the petitioners drove off, leaving the victim in the parking lot. As they drove away, Demers noticed the victim's pocketbook on the floor in the front of the automobile and threw it out the window.

At the outset, we note that a petition for a new trial is addressed to the discretion of the trial court whose decision thereon will be set aside on appeal only if it reflects a clear abuse of discretion. Wetzel v. Thorne, 202 Conn. 561, 564-65, 522 A.2d 288 (1987); Asherman v. State, 202 Conn. 429, 434, 521 A.2d 578 (1987). In deciding upon a petition for a new trial, the function of the trial court is to determine whether the evidence presented at the hearing on the petition together with the evidence presented at the original trial warrants the granting of the petition. Kubeck v. Foremost Foods Co., 190 Conn. 667, 669, 461 A.2d 1380 (1983). " 'The basic question which the trial court has to decide is whether upon all the evidence an injustice had been done'; Turner v. Scanlon, 146 Conn. 149, 163, 148 A.2d 334 (1959); and 'whether it is probable that on a new trial a different result would be reached.' Taborsky v. State, 142 Conn. 619, 623, 116 A.2d 433 (1955)." Kubeck v. Foremost Foods Co., supra; see also Johnson v. State, 172 Conn. 16, 17, 372 A.2d 138 (1976).

In the case at hand, the trial court granted the petition for a new trial on the ground that the state failed to disclose exculpatory material about which it should reasonably have known, and which it should have disclosed, and thereby violated the principles set forth in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). The material that the trial court found that the state failed to disclose was the contents of a May, 1981 arrest report of Sergeant Jeremiah Wallace of the Waterbury police department. The arrest report set forth the factual circumstances underlying the victim's arrest on a charge of prostitution on May 5, 1981, only ten months prior to the incident at issue here.

The state first claims that the principles of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and United States v. Agurs, supra, do not apply in this case because the information was known by the petitioners prior to trial and available to them during trial, and it further claims that the information was neither material nor exculpatory in nature. We disagree.

It is well established that " 'suppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. [ Brady v. Maryland, supra, 87, 83 S.Ct. at 1196-97]....' " State v. Monteeth, 208 Conn. 202, 213, 544 A.2d 1199 (1988); State v. Doolittle, 189 Conn. 183, 196, 455 A.2d 843 (1983); see also Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706, reh. denied, 409 U.S. 897, 93 S.Ct. 87, 34 L.Ed.2d 155 (1972); State v. Quintana, 209 Conn. 34, 547 A.2d 534 (1988); State v. Green, 194 Conn. 258, 263, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S.Ct. 964, 83 L.Ed.2d 969 (1985). To establish a Brady violation the defendant bears the burden of demonstrating: "(1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that it was material." State v. Milner, 206 Conn. 512, 539-40, 539 A.2d 80 (1988); State v. Simms, 201 Conn. 395, 405-406, 518 A.2d 35 (1986).

I

We must first determine whether there was a "suppression" of evidence, within the meaning of Brady. The state claims that the evidence was either available to or known by the petitioners prior to trial, and was also available to them during the trial and, therefore, was not suppressed. This claim involves two inter-related questions. First, did the state have a duty to disclose the arrest report of Sergeant Wallace dated May 5, 1981? Second, was the information in the arrest report, although not disclosed, nevertheless, available to or known by the petitioners? To the first question, our answer is in the affirmative and to the second question, in the negative.

A

The prosecution's duty to disclose applies to all material and exculpatory evidence that is within its possession or available to it; Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 1001, ...