State v. Battista

• Decision Date: 01 June 1993
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Stephen P. BATTISTA. 10999.

Page 769

626 A.2d 769

31 Conn.App. 497

STATE of Connecticut v. Stephen P. BATTISTA.

10999.

Appellate Court of Connecticut.

Argued Feb. 16, 1993.

Decided June 1, 1993.

Otto P. Witt, Wethersfield, for appellant (defendant).

Jack W. Fischer, Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and Steven Preleski, Asst. State's Atty., for appellee (state).

Before DALY, EDWARD Y. O'CONNELL and FREDERICK A. FREEDMAN, JJ.

DALY, Judge.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of sexual assault in a spousal or cohabiting relationship in violation of General Statutes § 53a-70b, unlawful restraint in the second degree in violation of General Statutes § 53a-96, reckless endangerment in the second degree in violation of General Statutes § 53a-64, and threatening in violation of General Statutes § 53a-62.

The defendant claims that (1) the evidence was insufficient to sustain the guilty verdicts, (2) General Statutes § 53a-70b, sexual assault in a spousal or cohabiting relationship, is unconstitutionally vague, (3) the prosecutor's summation amounted to prosecutorial misconduct, (4) he was deprived of his right to effective assistance of counsel at trial, (5) the trial court improperly admitted expert testimony regarding battered women's syndrome, and (6) the trial court improperly admitted the testimony of the victim's father because it was unduly prejudicial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and the victim were married on August 28, 1987, and resided in the defendant's condominium in Plainville. The victim had two children by a prior marriage: one daughter who was ten years old at the time of trial, and another daughter who was eight years old at the time of trial. The defendant adopted both girls in 1988. A son was born to the couple on February 16, 1989. The defendant worked at two jobs until he quit one to open his own landscaping business in 1989. In 1990, the domestic situation became volatile. During this year, the defendant ordered the victim and their children out of the condominium on approximately five occasions.

One such incident occurred when the victim and her daughters were boiling eggs for Easter and the defendant came home and started harassing the children. The victim defended the children and the defendant ordered them to leave but would not let them take anything with them, including the checkbook. When the defendant placed the victim's neck in a choke hold, she bit him on the arm, told the girls to go to the car, took the baby and left the condominium. The victim and her children stayed at a hotel for a week and then stayed at her aunt's house. During this time, the victim contacted an outreach advocate. ¹ She also called the police but, after being told that she also could be arrested, the victim decided not to pursue the complaint. Meanwhile, the defendant was phoning the victim every day at work promising that they would resolve their difficulties. Thereafter, she and the children returned to the condominium.

In August, 1990, the victim and the children were again ordered out of the condominium by the defendant because the victim had paid $50 to find out if her credit application for a new car would be approved. The victim expressed her desire to return later the same day, and her parents escorted her back to the condominium. The defendant and the victim's parents argued. The victim's parents left, but the victim decided to stay.

The charges stem from two incidents that occurred on September 21 and October 3, 1990. On September 21, the victim was sitting in the living room watching television when the defendant returned home from a stag party between 10 and 11 p.m. She was annoyed because she had not known that the defendant would be attending a stag party that evening. After an argument, the defendant left the condominium and returned an hour later. The defendant made sexual advances, and, when the victim refused to remove her clothing, he threw her to the floor and threatened to break her legs. The victim resisted in vain as the defendant forced her to have sexual intercourse with him. Their older daughter was in the process of going downstairs to get a glass of water when she saw the defendant on top of her mother, hitting her and pulling her clothes off. The victim and the three children remained in the condominium after this incident. The victim testified that she did not report the incident to the police immediately because she was afraid the defendant would kill her and because she was ashamed. The following Monday, the older daughter came home from school with a note from the school social worker who wanted to meet with the victim because the daughter had written in her creative writing journal, "my daddy beats my mommy up." The victim met with the school social worker that Friday.

On October 3, 1990, the defendant returned from work at about 9 p.m. When the victim told the defendant she had ordered a newspaper at a special price, the defendant became enraged, and cursed the victim. The victim picked up the phone to cancel the order, but the defendant grabbed the phone and cursed her again. She slapped him and told him not to speak to her in that manner. The defendant again began to yell but soon left the premises. The victim took the baby upstairs to bed with her. An hour later the defendant returned and berated her, grabbed the baby and took him to his crib, which was located in the girls' bedroom. There was conflicting evidence as to whether the defendant threw the baby into his crib. Believing that the baby was in danger, the victim tried to intercede but the defendant pushed her onto the floor. When she attempted to call the police from a downstairs phone, he grabbed her and dragged her back upstairs. Once in the master bedroom, he threw her about, held her up by her hair, pushed her onto the bed and threatened to kill her.

Subsequently, the defendant went to the girls' room and woke them up, asking who their mother had been seeing. The older daughter replied that her mother had spoken to the school counselor, referring to the school social worker. The defendant, still angry, returned to the master bedroom and pulled the victim onto the bed. She submitted to his sexual advances and had intercourse with him to avoid any further conflict and to avoid disturbing the children further. The following day she filed a complaint with Officer Patrick Buden of the Plainville police department.

The defendant was arrested on October 12, 1990. He was charged with eight counts and acquitted of four. ² This appeal ensued.

I

The defendant claims that the state's evidence was insufficient to sustain his convictions. We do not reach the merits of this claim because the defendant failed to preserve it.

The trial court denied the defendant's motion for judgment of acquittal made at the completion of the state's case. Practice Book § 864. The defendant presented a defense but failed to move for a judgment of acquittal a second time. ³ "Under the existing rules, when a defendant elects to put on evidence after a denial of his motion for judgment of acquittal at the end of the state's evidence, he is deemed to have waived his right to appellate review as to the sufficiency of the evidence at the completion of the state's case. State v. Booker, 28 Conn.App. 34, 41-42, 611 A.2d 878, cert. denied, 223 Conn. 919, 614 A.2d 826 (1992); State v. Kari, 26 Conn.App. 286, 291, 600 A.2d 1374 (1991), appeal dismissed, 222 Conn. 539, 608 A.2d 92 (1992)." State v. Wolff, 29 Conn.App. 524, 527, 616 A.2d 1143 (1992). This rule is still accepted by Connecticut courts despite the criticism leveled at it. See State v. Simino, 200 Conn. 113, 118 n. 5, 509 A.2d 1039 (1986); State v. Lizzi 199 Conn. 462, 464-65, 508 A.2d 16 (1986); State v. Rutan, 194 Conn. 438, 444, 479 A.2d 1209 (1984); State v. Duhan, 194 Conn. 347, 352, 481 A.2d 48 (1984); State v. Wolff, supra, 29 Conn.App. at 527-28 n. 5, 616 A.2d 1143; State v. Booker, supra. Furthermore, the defendant has not asked that this claim be reviewed under State v. Evans, 165 Conn. 61, 69-71, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1990). Therefore, we will not address the defendant's insufficiency argument because the motion was not renewed and as such the claim was not preserved.

II

The defendant next claims that General Statutes § 53a-70b is unconstitutional because it is vague as applied to the facts of this case. The defendant maintains that the statute's definition of "use of force" would permit a conviction solely because the defendant's physical strength was superior to that of the victim. ⁴ Before addressing the merits of this claim, we must first consider the threshold question of reviewability.

The state maintains that the defendant's claim is not reviewable because it was not distinctly raised at trial and because the defendant has not request that we review it under Evans, and Golding. Notwithstanding this procedural default, our courts have considered whether to review unpreserved claims of unconstitutional vagueness utilizing the criteria set forth in Evans and Golding. State v. Jones, 215 Conn. 173, 179, 575 A.2d 216 (1990). State v. Jones, 29 Conn.App. 683, 686, 617 A.2d 918 (1992).

"State v. Golding, supra, establishes that a defendant cannot prevail on an unpreserved constitutional claim unless all four conditions are met, any one of which may be considered first. State v. Shaw, 24 Conn.App. 493, 497, 589 A.2d 880 (1991). Under the third Golding condition, the defendant can prevail only if the alleged constitutional violation clearly exists and clearly deprived him of a fair trial. State v. Golding, supra, 240." State v. Mezrioui, 26 Conn.App. 395, 400-401, 602 A.2d 29 (1992). ⁵

A claim of unconstitutional vagueness normally "implicates...