State v. Anderson
| Decision Date | 25 April 1989 |
| Docket Number | No. 13303,13303 |
| Citation | 211 Conn. 18,557 A.2d 917 |
| Parties | STATE of Connecticut v. Tobias ANDERSON. |
| Court | Connecticut Supreme Court |
Jon C. Blue, Asst. Public Defender, with whom, on the brief, was Joette Katz, Public Defender, for appellant (defendant).
Susan C. Marks, Asst. State's Atty., with whom, on the brief, were Dennis O'Connor, Asst. State's Atty., and Mary H. Lesser, Deputy Asst. State's Atty., for appellee (state).
Before PETERS, C.J., and ARTHUR H. HEALEY, CALLAHAN, COVELLO and SANTANIELLO, JJ.
In this case, the defendant appeals from his conviction by a jury on charges of kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2), 1 two counts of sexual assault in the first degree in violation of General Statutes § 53a-70(a), 2 sexual assault in the third degree in violation of General Statutes § 53a-72a(a)(1), 3 and attempted sexual assault in the first degree in violation of General Statutes §§ 53a-49(a)(2) 4 and 53a-70(a). The jury found the defendant not guilty of one count of robbery in the first degree in violation of General Statutes § 53a-134(a)(3). The trial court, Susco, J., sentenced the defendant to a total effective sentence of thirty-five years imprisonment. The defendant raises three claims of error on appeal. We are not persuaded by the first two and do not review the third.
The jury reasonably could have found the following facts. At approximately 12:15 a.m. on November 19, 1985, the victim, L, was working as the assistant manager at a convenience store in Bloomfield. After closing the store at that time, L walked to her car that was parked in front of the store. As she approached the car, she noticed that the door was unlocked. L "thought [that] was weird" because she always locked the car. L looked in the back seat of the car and, noticing nothing unusual, began to enter the car. At that point, she heard a noise, turned around and was confronted by a black male in his early to mid-twenties, about five feet ten or eleven inches tall, of medium build, clean shaven, with a short Afro, wearing a dark, thick jacket, and dark pants. The man appeared to be wearing long gloves and he brandished a knife in his right hand. L believed that the man intended to steal her car so she offered her keys and pleaded to be left alone. The abductor, however, with the knife poised at L's neck, demanded that she get in the front seat of the car on the passenger's side, sit on the floor, and put her head on the passenger's seat and cover her head with her arms.
The man began to drive the car and L hysterically begged for her release so she could go home to her baby. The abductor told her to shut up and she would not be hurt. During a ten minute ride, L occasionally raised her head and looked at the man and out of the window, but he insisted that she keep her head down. Because L was not familiar with Bloomfield, she had no idea where she was.
The abductor stopped the car in a field. L noticed woods on the right side and a building with bright spotlights in the distance. L and the man exited the car and walked to the front of it; the man was still wielding his knife. The man ordered L to take off her pants, but she refused. He then shoved her against the car and told her to do as he said and she would not get hurt. L slowly removed her pants trying to stall and the assailant again pushed her against the car. After removing his pants and underwear, and with his knife still in his hand, the man pushed L onto the hood of the car, got on top of her, and engaged in vaginal intercourse. After L's repeated begging for the man to put his knife down, the assailant put the knife down on the hood out of L's reach, and then he lifted up L's shirt and bra and touched her breasts. This episode lasted about ten minutes and during this time L again had occasion to see the man's face.
The assailant then forced L to turn over on the hood and he engaged in vaginal intercourse from behind. L did not remember exactly how long this lasted, but testified that this act lasted less time than the first. During this act of intercourse, the man said that he wanted to engage in anal intercourse. L testified concerning this episode as follows: Upon her refusal, according to L's testimony, he said: "It was either that or I give him head." L responded that she did not want him to enter her anally because it would hurt too much, so he made her perform fellatio on him. He again had the knife in his hand.
While L was performing fellatio, the assailant again said that "it wouldn't work." He then made her get on her back on the ground and he once again engaged in vaginal intercourse. During this act of intercourse, which lasted approximately twenty minutes, the man put down the knife and sucked on his right thumb. After this act of intercourse, the man then forced her onto her hands and knees and he again engaged in vaginal intercourse from behind. After about ten minutes, he ejaculated.
The two then got dressed, but L could not find her underwear so she just put on her pants. L pleaded for her release and told the man that he could have her money. With his knife in hand, he took forty dollars from her. They both got back into the car and L resumed her position on the floor of the passenger's side. He again proceeded to drive. 5
Shortly thereafter, the man stopped the car and demanded more oral sex. L refused, but he pushed her head down and made her perform fellatio. Finally, L told him that she could not do it anymore and that she did not care if he killed her because she believed that he was going to do that anyway. They drove for about ten more minutes and again stopped. The man told L to count to ten, during which time he would leave. He also told her that if she took a left from where they were parked, she would know where she was. The assailant exited the car and L quickly locked the door behind him.
After her assailant left, L drove until she came upon two police cruisers parked behind a building. L told the officers that she had been raped and provided them with some information. Officer Robert Black of the Bloomfield police department then took L to Mount Sinai Hospital. The physician who examined her at that time testified that the victim said that "she had been forcibly entered vaginally, orally and attempted rectally." Later in the day on November 19, L gave a statement to Detective Peter Crombie at the Bloomfield police department.
On November 20, 1985, L accompanied Crombie to four or five fields. She recognized one of them and Crombie found her underwear there. On November 21, 1985, L met with Crombie at the Bloomfield police station and looked at a photographic array but did not select any photograph as that of her assailant. L also assisted a police artist in making a sketch of her attacker.
After another unsuccessful attempt to identify her assailant from among photographs at the police station, on November 29, Crombie and Detective Richard Cousins went to L's house with nine photographs. L identified one of the photographs, which was of the defendant, as that of her assailant and she signed the back of it. L again gave a statement to Crombie after she identified the photograph. At trial, L identified the defendant as her assailant. 6
At trial, Crombie testified about his questioning of the defendant on November 27 at about 9 a.m., indicating that during their discussion, "[a]ll of a sudden [the defendant] just came out with 'it just happened.' " Upon further inquiry by Crombie, the defendant described his assault of a woman at about midnight on November 18-19 at a convenience store in Bloomfield. Crombie testified that the defendant stated that he had "tried to enter her anally," but she said that she did not want to and he then gave her a choice between anal and oral sex. Crombie also testified that the defendant admitted to sucking his thumb when he was nervous and he told Crombie that he was not wearing gloves during the assault but that he had dress socks over his hands. 7
In his defense, the defendant offered the testimony of a friend and the friend's mother who testified that the defendant was working on a car at the friend's house until 11 p.m. on November 18. A work associate testified that he spoke with the defendant on the telephone for about ten minutes at 11:30 p.m. on November 18 and that the defendant appeared normal when he arrived at work at 8 a.m. the next day. Another work associate testified that the defendant was at work on November 19 at 8 a.m. The defendant did not testify.
The defendant's first claim of error is that his conviction and punishment for attempted sexual assault in the first degree in violation of General Statutes §§ 53a-49(a)(2) and 53a-70(a) violates the double jeopardy clause of the fifth amendment to the United States constitution and the due process clause of the Connecticut constitution, article first, § 8. 8 The defendant contends that his conviction and punishment for attempted sexual assault amounts to multiple punishments for the same offense, given that he had also been convicted of three counts of completed sexual assault, and thus violates the protection against double jeopardy. 9 We disagree.
In State v. Rawls, 198 Conn. 111, 502 A.2d 374 (1985), we recited the state of the law with regard to double jeopardy protection against multiple punishments. In Rawls, we stated: ...
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