State v. Bennett

• Decision Date: 08 February 1977
• Parties: STATE of Connecticut v. Gary BENNETT.
• Court: Connecticut Supreme Court

Page 247

374 A.2d 247

172 Conn. 324

STATE of Connecticut v. Gary BENNETT.

Supreme Court of Connecticut.

Argued Oct. 13, 1976.

Decided Feb. 8, 1977.

Charles Hanken, Bridgeport, with whom was Raymond Blank, Bridgeport, for appellant (defendant).

Eugene J. Callahan, Asst. State's Atty., with whom, on the brief, was Donald A. Browne, State's Atty., for appellee (state).

Before HOUSE, C. J., and BOGDANSKI, LONGO, BARBER and MacDONALD, JJ.

HOUSE, Chief Justice.

This is an appeal from the judgment rendered on the verdict of a jury finding the defendant guilty of the crime of rape in the first degree in violation of then § 53a-72 of the General Statutes. The defendant was sentenced to a term of imprisonment of not less than five nor more than ten years.

The defendant has briefed and argued three claims of error. He claims that the trial court erred in its charge and supplemental charge on the law of alibi and in failing to charge on that subject in language requested by the defendant, in its comments to the jury concerning the standards to be used in weighing the credibility of the witnesses for the defense, and in denying the defendant's motion to set aside the verdict.

The state introduced evidence from which the jury could find the following: On January 12, 1972, at approximately 10 to 10:30 a. m., the complaining witness, to whom we will refer as Mary, left her home in Stratford to drive to the Bridgeport library to complete a report for her art class scheduled for 4 p. m. at Housatonic Community College. En route to Bridgeport, she decided to see if a friend and fellow student, to whom we will refer as Olive, wanted to go to the library with her, so she left the thruway at the Pembroke Street exit. Olive lived in a second floor apartment at 202 Hough Avenue in Bridgeport. The house was owned by Mr. and Mrs. Harold Bennett who lived on the first floor with their daughter and son, the defendant.

Olive had a part-time job while going to school so that she was not usually home in the morning. Mary was aware of this but midterm exams were at hand and she believed that Olive might be staying at home to study. Mary had visited Olive at her apartment about twenty times prior to January 12 and had stayed there overnight on occasion.

Mary arrived at 202 Hough Avenue approximately fifteen to thirty minutes after leaving her home. She knocked at the door and a man answered. She had seen that man at 202 Hough Avenue on at least two prior occasions. Mary asked if Olive was home to which he responded that he did not know. Mary went upstairs to Olive's apartment but Olive was not there. When she came back down, the man was still in the downstairs hallway. She asked him to tell Olive that she had come by. As she started to drive away, the man waved her back saying that Olive had just called and that she would be right back. At the man's invitation, Mary entered the first floor apartment to wait for Olive.

The man accompanied her into the apartment. At the trial Mary identified the defendant as that man and the man she had seen on the premises on prior occasions. She sat on the couch in the living room, introducing herself as "Mary." He said his name was "Gary." No one else was in the apartment. There was some conversation. The defendant walked around and left the room on a couple of occasions. For a brief time he sat on the couch with Mary. He also went behind the couch occasionally as though looking out the front window for Olive to arrive. On such an occasion when the defendant was behind the couch, he suddenly threw a rope or cloth-like material over her head like a noose.

The defendant tightened the noose around her neck so that Mary was unable to breathe. She slid from the couch on to the floor, unconscious. When she regained consciousness she was weak, in severe pain, and breathing with great difficulty. The defendant removed the noose from her neck and helped her to her feet. The defendant then took her to a back room in the same apartment. She was crying, too weak to resist the defendant, and "frightened to death."

The room contained a sofa-type bed. The defendant forced her onto the bed, removed her slacks and underpants and forced her to submit to sexual intercourse. Mary identified the defendant in court as the man who forced himself upon her.

After this assault, the defendant ascertained Mary's address and the identity of members of her family. He told Mary that he was a member of the Black Panthers and threatened harm if she were to tell what happened. He ordered her to tell her family that she had been attacked by Puerto Ricans in Stratford.

Upon leaving the apartment, Mary drove to her home in Stratford, arriving at about noon. She collapsed on the stairs and her aunt, Jean Zahner, came to her assistance, finding her emotionally distraught and disheveled and complaining that her neck hurt. She told her aunt that she had been attacked by two Puerto Ricans on East Main Street in Stratford. While Mary was in bed at home prior to being taken to the hospital, Sergeant Alfred E. Dunn of the Stratford police department inquired about the attack on East Main Street. Because she was having difficulty speaking, she nodded as if to affirm this description of the attack. Due to her physical and emotional state at the time, Mary did not recall any such communication.

Mary was taken from her home to Milford Hospital by ambulance and immediately transferred to the intensive care unit. She remained in the hospital until January 18. James T. Keegan, the examining physician, expressed the opinion that the neck and facial injuries were caused by severe external compression. He ordered that the police not attempt to question Mary for two days.

In the hospital emergency room, at approximately 1 p.m. on January 12, immediately after Keegan's examination, Mary admitted to her aunt that what she had told her previously was not, in fact, what occurred. On that evening, Jean Zahner visited Mary in the intensive care unit. Mrs. Zahner told her that she would have to give the police an accurate account. Mary replied, "I can't tell you anything. Don't say anything," and, also, to the effect that "he is a member of the Black Panthers" and "he will kill me if I tell on him."

On the afternoon of January 12, Francis J. Hyland, a gynecologist, examined Mary at the hospital. He concluded that there were spermatozoa deposits in the vagina.

Abraham Stolman, chief toxicologist for the state of Connecticut, received items of Mary's clothing at the state laboratory on January 18, 1972. At the trial, he testified that his examination revealed seminal stains on the outside of the crotch of her underpants and that her slacks had seminal stains on the inside of the crotch.

The defendant testified in his own behalf as did several of his friends and schoolmates. They testified in detail to the effect that on the day in question the defendant had left for Harding High School at about 7:45 to 8 a.m. and had remained at school until he took the bus home at about 2:30 p.m.

Two of the defendant's teachers, Mrs. Mary M. Clark and Michael Brown, also testified. Mrs. Clark testified that her attendance records indicated that the defendant was present in her class between 9:59 a.m. and 10:38 a.m. on the day in question; Brown testified that he did not take attendance on January 12 and could not recall whether the defendant was in class on that date.

The defendant claims that the court erred in its charge and supplemental charge on the law regarding an alibi defense, and in failing to charge as requested by the defendant in language which was virtually verbatim the language approved in State v. Brauneis, 84 Conn. 222, 230-32, 79 A. 70. Instead of adopting the language from the older Brauneis case, the court charged in language taken almost verbatim from the court's charge in the more recent case of State v. Cari, 163 Conn. 174, 303 A.2d 7. On the appeal in the Cari case, we found no error in this charge as to the law applicable to an alibi defense. See State v. Malley, 167 Conn. 379, 382, 355 A.2d 292. The complete Cari charge is found in A-533 Records and Briefs and no good purpose would be served in repeating it at length in this opinion. As we noted in the opinion in Cari, supra, 182, 303 A.2d 10: "On numerous occasions this court has stated that the trial court in a criminal case may, in its discretion, make fair comment on the evidence and particularly on the credibility of witnesses. See State v. Tropiano, 158 Conn. 412, 428, 262 A.2d 147; State v. LaFountain, 140 Conn. 613, 620, 103 A.2d 138; State v. Pecciulis, 84 Conn. 152, 158, 79 A. 75. In addition we have also declared that an instruction on the credibility of alibi witnesses similar to that challenged by this assignment of error is both proper and fair when weighed in the light of the other paragraphs of the charge. State v. Groos, 110 Conn. 403, 410, 148 A. 350; State v. Cianflone, 98 Conn. 454, 466, 120 A. 347 . . . . It is well recognized that the credibility of alibi witnesses is a subject as to which fair comment by the court to the jury is allowed. See Sullivan v. Scafati, 428 F.2d 1023 (1st Cir.), cert. denied, 400 U.S 1001, 91 S.Ct. 478, 27 L.Ed.2d 452; Surridge v. State, 239 Ark. 581, 393 S.W.2d 246; Commonwealth v. Sullivan, 354 Mass. 598, 239 N.E.2d 5, cert. denied, 393 U.S. 1056, 89 S.Ct. 697, 21 L.Ed.2d 698; State v. Griffin, 336 S.W.2d 364 (Mo.); Commonwealth v. Gates, 392 Pa. 557, 141 A.2d 219; Rogers v. State, 2 Tenn.Cr.App. 491, 455 S.W.2d 182 (Tenn.Crim.App.); Bolin v. State, 219 Tenn. 4, 405 S.W.2d 768. We find no error in this portion of the charge to the jury."

As we have repeatedly stated, "(t)he court is under no duty at any time to charge in the language of requests. Its duty is performed when it gives instructions calculated to give the jury a clear comprehension of the issues presented for their determination under the pleadings and upon...