State v. Cassidy, 15101
| Citation | 672 A.2d 899,236 Conn. 112 |
| Decision Date | 27 February 1996 |
| Docket Number | No. 15101,15101 |
| Court | Supreme Court of Connecticut |
| Parties | , 64 USLW 2612 STATE of Connecticut v. Stephen CASSIDY. |
Neal Cone, Assistant Public Defender, for appellant (defendant).
Timothy J. Sugrue, Executive Assistant State's Attorney, with whom, on the brief, were Donald A. Browne, State's Attorney, and Joseph T. Corradino, Assistant State's Attorney, for appellee (State).
Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON, KATZ, NORCOTT and PALMER, JJ. 1
A jury found the defendant, Stephen Cassidy, guilty of the crimes of kidnapping in the first degree in violation of General Statutes § 53a-92, robbery in the first degree in violation of General Statutes § 53a-134, unlawful restraint in the first degree in violation of General Statutes § 53a-95, and failure to appear in the first degree in violation of General Statutes § 53a-172. 2 The defendant has appealed 3 from the judgment of the trial court sentencing him to a term of imprisonment of forty-three years. 4 Although we affirm the judgment of conviction rendered by the trial court on the failure to appear count, we conclude that the defendant is entitled to a new trial on the remaining charges because certain improper comments made by the prosecutor during his closing argument to the jury impermissibly infringed upon the defendant's right under the federal and state constitutions to be present throughout the trial.
The jury reasonably could have found the following facts. On the evening of December 27, 1992, the victim, a nineteen year old male college student and part-time tennis instructor, drove to the Bayview shopping plaza in Bridgeport for the purpose of meeting men who might be interested in having sexual relations with him. 5 Shortly after the victim had arrived at the shopping plaza, the defendant pulled up alongside the victim's vehicle in his own car. The two men, who remained in their cars, introduced themselves and, during a conversation that lasted approximately fifteen or twenty minutes, expressed their mutual interest in having sexual relations. The defendant indicated that he knew of a nearby street where they could go to engage in such activity, and the two men, driving separately, proceeded to a secluded location on Hawley Street behind St. Vincent's Hospital in Bridgeport. The two men parked their vehicles on that street, and the defendant exited his car, entered the victim's vehicle and began to perform fellatio on the victim.
After one or two minutes, the defendant disengaged and pulled a jackknife on the victim, demanding all of the victim's money. The victim, who was not carrying his wallet, gave the defendant $4, which was all the cash that the victim had in his possession. The defendant then searched the front passenger compartment of the victim's car for more money and, unable to find any, told the victim that he needed more than $4 because he had "a wife and two kids and a mortgage to meet tomorrow." The defendant inquired whether the victim had an automatic bank teller card, and the victim responded that he did not have his card with him. The defendant, still brandishing the jackknife, directed the victim to drive to his home to retrieve his bank card and whatever cash he had at his residence. The victim thereupon proceeded to drive in the direction of his home, which was located in the north end of Bridgeport. On the way, however, the victim told the defendant that he was only sixteen years of age and that his grandparents, with whom he resided, would be suspicious if he returned home and then left immediately. 6 The defendant convinced that it would not be prudent to proceed to the victim's residence, directed the victim to take him back to his car. Upon their return to Hawley Street, the defendant warned the victim not to notify the police about what had occurred. The defendant then exited the victim's car, entered his own vehicle, and drove away.
Notwithstanding the defendant's admonition not to contact the authorities, the victim, who had recorded the license plate of the automobile operated by the defendant, reported the incident to the Bridgeport police a short time later. On the basis of the information provided to the police by the victim, the defendant was apprehended, identified by the victim and charged.
At trial, the state also introduced evidence that the defendant had been arrested on November 25, 1992, for a felony violation unrelated to his subsequent encounter with the victim. The state's evidence indicated that the defendant had been released in that earlier case on his promise to appear in court on December 7, 1992, and thereafter, as required; that he had appeared in court on December 7, 1992, at which time the judge continued his case until December 21, 1992, and ordered him to return on that date; that he had failed to appear in court on December 21; and that he had also failed to notify the court on or before December 21, of his inability to be present in court on that date.
The defendant testified at trial in his own defense. With respect to the kidnapping, robbery and unlawful restraint charges, the defendant admitted performing fellatio on the victim at the Bayview shopping plaza on the evening of December 27, 1992. The defendant claimed, however, that he was a prostitute who, as on prior occasions, had gone to the shopping plaza that night for the purpose of obtaining money in return for sex. The defendant further testified that when the victim told him that he wanted oral sex, the defendant informed him that it would cost $20. The victim agreed and followed the defendant to Hawley Street, where the two men parked their cars. The defendant got out of his car and into the victim's vehicle and began to perform fellatio on the victim.
Shortly thereafter, a Bridgeport police officer drove by in a police cruiser and parked nearby. According to the defendant, the victim became alarmed and terminated their sexual activity. The defendant, however, informed the victim that he would still have to pay for the defendant's services. Upon learning that the defendant expected to be paid whether or not the two men resumed their sexual relations, the victim drove to a nearby parking lot so that he and the defendant could continue their sexual activity out of the view of the police officer.
Before agreeing to resume oral sex, however, the defendant insisted on payment in full. According to the defendant, the victim then handed him $4, which the victim indicated was all the money that he had in his possession. The defendant told the victim that the payment was insufficient, whereupon the victim suggested that he could drive home to obtain additional money. The defendant initially agreed with this suggestion, and the two men, traveling in the victim's car, started toward the victim's home. The defendant testified that he soon changed his mind about driving to the victim's residence, however, because he did not want to waste any more time. The defendant so informed the victim, who turned around and proceeded back to the defendant's vehicle on Hawley Street.
Upon arriving at the defendant's car, the victim stated that he wanted the $4 back. According to the defendant, he told the victim that he would not return the money because he had earned it and, in fact, that the victim still owed him for his services. The defendant then exited the victim's car and drove away. The defendant acknowledged that he had also told the victim not to return to the Bayview shopping plaza, but insisted that at no time had he ever threatened the victim. The defendant further testified that he had not been in possession of a knife or any other weapon during his encounter with the victim.
The defendant also testified with regard to the failure to appear charge. He admitted that when he first appeared in court on December 7, 1992, he was ordered by the judge to return to court on December 21, 1992. The defendant acknowledged that he had disobeyed the court's order by failing to appear on that date, but stated that he could not recall why he had not appeared. Additional facts will be set forth as they become relevant.
On appeal, the defendant claims that the trial court improperly: (1) failed to give a curative instruction after the prosecutor, in his closing argument to the jury, made certain comments that impermissibly infringed upon the defendant's right to be present throughout the trial; (2) granted the state's motion to consolidate for trial the failure to appear count with the other counts; (3) denied the defendant's motion for a judgment of acquittal on the failure to appear charge due to insufficient evidence; (4) instructed the jury on the crime of failure to appear; (5) limited the defendant's testimony with respect to the failure to appear charge; (6) instructed the jurors concerning their duty not to discuss the case with anyone during the pendency of the trial; (7) instructed the jury on reasonable doubt and the presumption of innocence; and (8) committed, as a result of the cumulative effect of the above noted improprieties, harmful error. We agree with the defendant that the trial court should have given a curative instruction to the jury after improper argument by the prosecutor during his summation to the jury and that those comments, in the absence of such an instruction, require a new trial on the kidnapping, robbery and unlawful restraint counts. 7 Because we reject the defendant's other claims, however, we affirm the judgment of conviction rendered against him on the failure to appear count. 8
The defendant claims that certain comments made by the prosecutor during his closing argument to the jury violated his rights under the sixth and fourteenth amendments to the United States constitution and under article first, § 8, of the Connecticut constitution. 9 Specifically, he contends that the prosecutor...
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