State v. Ali

• Decision Date: 06 June 1995
• Docket Number: No. 15023,15023
• Citation: 233 Conn. 403,660 A.2d 337
• Parties: STATE of Connecticut v. Showkat ALI.
• Court: Connecticut Supreme Court

Page 337

660 A.2d 337

233 Conn. 403

STATE of Connecticut v. Showkat ALI.

No. 15023.

Supreme Court of Connecticut.

Argued March 16, 1995.

Decided June 6, 1995.

Jeremiah Donovan, for appellant (defendant).

John P. Gravalec-Pannone, Asst. State's Atty., with whom, on the brief, was Kevin T. Kane, State's Atty., for appellee (State).

Before PETERS, C.J., and CALLAHAN, BORDEN, KATZ and PALMER, JJ.

KATZ, Associate Justice.

The dispositive issue on appeal is whether the trial court's instructions on constancy of accusation improperly failed to inform the jury that it could use the victim's out-of-court statements to impeach her credibility. Because the trial court neglected to instruct the jury that it could consider any contradictions, inconsistencies or falsities in her statements in assessing her credibility, despite four separate requests to so charge, the court's instructions failed to guide the jury properly in resolving the contested issues before it. We conclude that, because this case turned almost exclusively on the credibility of the victim and the defendant, her former husband, this omission constituted harmful error.

The state presented evidence tending to establish the following facts. The victim and the defendant, Showkat Ali, had been married from 1982 to 1988. The couple had two children, both of whom lived with the victim at her home in New London, after the couple divorced in 1988. They had no set visitation schedule, and visitation was at the victim's discretion. On July 9, 1991, the children had been staying with the defendant at his home in New York for approximately ten days and were due to return to their mother that night. When the defendant had called his ex-wife to say that he would not be returning the children that night as agreed, she immediately drove the two hours to his home at 129 Overlook Drive, Mount Vernon, New York, with the hope of recovering the children.

After the victim arrived, she and the defendant argued through his closed door for several minutes. When the defendant finally opened the door, she saw that he was holding a machete in his hand. Perceiving this as a threat, the victim ran down the driveway to the street and was followed by the defendant. After he told her to leave, she asked a neighbor to call the police. When the police arrived, they saw the machete on the defendant's kitchen table, but they did not seize it. The police then told the defendant to produce the children. After he had done so, the victim took the children back to New London and advised the police that she did not wish to press charges.

Julie Corigliano and her sister Autumn Corcione, while sitting on the front steps of their home at 118 Overlook Street in Mount Vernon, during the evening of July 9, 1991, saw the victim run across the street toward them. She was upset and hysterical. The defendant remained in the driveway and screamed at the victim in a foreign language. Using a portable cellular telephone that belonged to Corcione, the victim called the police. During the fifteen minutes before the police arrived, the defendant paced up and down the driveway while the victim kept her distance. The police entered the house and brought the children outside. After the victim had driven off with the children, the defendant came out of the house. The defendant then got into his car, which was parked in front of the sisters' house and directly under a street light. Because of the reflection from the street light, the sisters were able to see that he was carrying a knife. Corcione estimated that they were fifteen feet away from the defendant when they saw the weapon. According to Corigliano, the knife had a silver blade and looked more like a machete than a knife.

That same evening, moments after the victim had arrived at her New London home and carried one sleeping child upstairs, the defendant appeared in her kitchen. The victim screamed and tried to run, but the defendant caught her and held a twelve inch knife to her throat. The defendant threatened that if she continued to scream he would kill her. He allowed her to retrieve their other child from the car to be put to bed, but threatened to kill the child already in the house if she attempted to run away. He then ordered her to remove her clothing and beg for her life. While he continued to hold a second knife in his hand, he then ordered her to perform fellatio. This act lasted a few minutes. He then had vaginal intercourse with the victim. Following ejaculation, he threatened that if she reported the incident to the police he would return and kill her and their children. Each time she went near the front door, the defendant turned to the staircase leading toward the upstairs where the children were sleeping. When he left, he took the two knives as well as a hammer the victim had also seen in his possession. The entire episode transpired between 12:30 a.m. and 5:30 a.m.

After the defendant had left, the victim showered, took the children to their baby-sitter and went to work. She was visibly upset and uncharacteristically withdrawn. At the urging of her coworker, Linda Kahn, and her supervisor, Cheryl Foley, she told them what the defendant had done to her. They convinced her to go to the police.

At New London police headquarters, which was only a few blocks from her home, the victim spoke with officer Douglas Williams, who then prepared an arrest warrant. Two years later, in August, 1993, the police located the victim, and officer Phillip Fazzino took a statement from her in which she stated that she had been abused for five or six hours and that she had been forced to have oral sex and vaginal sex at least two times.

Although the defendant did not see the children after this incident, the victim identified a number of child support and gift checks as well as certified mail return receipt requested slips for presents that the defendant had sent to the children after the incident. She confirmed that her marriage to the defendant had been marked by frequent separations and reconciliations. She further confirmed that they were having consensual sexual intercourse even after their divorce, but denied that such relations had continued beyond the spring of 1990.

The defendant denied using force or the threat of force against the victim on the night in question. He testified that after she had left his home in New York, he followed her to New London. He admitted that he had surprised her by appearing in her apartment and that, when she began to scream, he had placed his hand over her mouth to stop her screaming, but he denied that he had carried any weapons or that he ever had threatened to harm her or the children. He further testified that he had been embarrassed that she had called the police in Mount Vernon. He then described an evening that consisted of conversation regarding their children and consensual sexual relations. The defendant testified that it had not been uncommon for them to fight and then to have sexual relations as part of the reconciliation process. He further testified that before he left, they had engaged in further conversation, followed by additional fighting about the victim's then current boyfriend.

The defendant ultimately was arrested on August 23, 1993, and charged by substitute information with kidnapping in the first degree in violation of General Statutes (Rev. to 1991) § 53a-92(a)(2)(A), ¹ two counts of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1), ² and one count of threatening in violation of General Statutes § 53a-62(a)(1). ³ Following the judgment of conviction on all four counts, the defendant appealed to the Appellate Court and we transferred the case to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). Additional facts will be set forth as needed.

I

The defendant first claims that the trial court improperly failed to instruct the jury as to his affirmative defense that the prosecution to the charge of threatening was commenced beyond the statute of limitations as set forth in General Statutes § 54-193(b). ⁴ We agree.

The following facts are relevant to this claim. Inspector John Edwards of the New London police department testified that, on July 10, 1991, the first warrant for the defendant's arrest, on the basis of the events of July 9, 1991, was prepared by a patrol officer, and that on July 19, 1991, that warrant was signed by an assistant state's attorney and issued by a judge of the Superior Court. The warrant stated that the incident occurred at the victim's home at 163 Huntington Street, New London, and that the defendant lived at 129 Overlook Drive, Mount Vernon, New York. Following its issuance, in November, 1991, the New London police listed the warrant with the National Crime Information Center. Sometime in 1991, the victim called the New London police department and learned that, although a warrant had been issued for the defendant's arrest, that department did not have "enough money to go down there [to New York] to arrest him."

On July 5, 1993, the defendant was arrested in Watertown, New York. The Watertown authorities notified the New London police that they had the defendant in custody and that he was willing to waive extradition to Connecticut. After receiving this information from Mount Vernon, Edwards asked the captain of his department to locate the victim. Because the department did not then know the victim's whereabouts, Edwards concluded that the warrant of July 19, 1991, should be vacated. He also expressed concern that his department had failed to get a statement from the victim when she had first reported the incident. Additionally, because the warrant application identified the victim by name, Edwards believed it was in violation of General Statutes (Rev. to 1991) § 54-86e. ⁵ Consequently, Edwards notified the Mount Vernon authorities that extradition would not be authorized and...