State v. Cerilli, 14338
| Decision Date | 04 June 1992 |
| Docket Number | No. 14338,14338 |
| Citation | 222 Conn. 556,610 A.2d 1130 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. Raymond CERILLI. |
Leon F. Dalbec, Jr., Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and David Gold, Asst. State's Atty., for appellee (state).
Sue L. Wise, New Haven, for appellant (defendant).
Before PETERS, C.J., and SHEA, COVELLO, BORDEN and BERDON, JJ.
The defendant, Raymond Cerilli, appeals 1 from the judgments of conviction, after a jury trial, of the crimes of kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A), sexual assault in the first degree in violation of General Statutes § 53a-70, attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-70 and 53a-49(a)(2), risk of injury to a child in violation of General Statutes § 53-21, and failure to appear in the first degree in violation of General Statutes § 53a-172. 2 The defendant claims that: (1) the trial court denied him due process of law by refusing to instruct the jury regarding the issue of identification; (2) the conduct of the New Haven police department resulted in the denial of his rights to confront witnesses, to the effective assistance of counsel and to due process of law by destroying or failing to produce crucial evidence; and (3) the trial court denied him due process of law by erroneously instructing the jury regarding the offense of failure to appear. We conclude that there was no reversible error, and we affirm the judgment.
The jury could reasonably have found the following facts. In October, 1987, the defendant lived in an apartment in Hamden, with his fiancee, Theresa Zumbo, and her daughter. On October 23, 1987, at approximately 9 p.m., the defendant and Zumbo, whose daughter was staying that evening with Zumbo's mother, picked up a friend, Etta Goldberg, at her residence in the Westville section of New Haven, and drove in the defendant's car to "Sally's," a bar in New Haven. The defendant's car was a 1982 Malibu Classic, burgundy in color, with an automatic transmission, four doors and bench seats. There was a broken "piece" on the inside of the front passenger side door. The car was missing a glove compartment, and there were wires protruding from the glove compartment area.
The defendant, Zumbo and Goldberg stayed at the bar until approximately 2 a.m. Before they left, however, the defendant and Zumbo got into an argument that continued until they arrived at Goldberg's residence. Zumbo and Goldberg entered Goldberg's house and the defendant left. At approximately 2:30 a.m., Goldberg drove Zumbo to Zumbo's mother's house, where Zumbo spent the rest of the night. At some time before 3:15 a.m., the defendant returned to Goldberg's house looking for Zumbo. Goldberg told him that she was at her mother's house but refused to let him use the telephone to call Zumbo. At approximately 3:15 a.m., the defendant called Zumbo at her mother's house from another telephone, but Zumbo refused to talk with him.
Meanwhile, N.W., the fourteen year old victim, and her friend, Raquel Reeves, were in the Westville section of New Haven, having visited friends. At approximately 3 a.m., they were walking toward downtown New Haven. As they reached Whalley Avenue, the defendant drove up to them and asked them if they wanted a ride. They accepted, and sat in the front seat of the defendant's car. The victim sat next to the defendant and Reeves sat next to the door.
After starting to drive toward downtown, the defendant told the two girls that, because his car was not registered, he would have to drive on back roads so as not to be seen by the police. Thereafter, he stopped the car and told the girls to leave the car because he was going to take the highway. As Reeves left the car, the defendant put his arm around the victim's neck, preventing her from leaving the car, and drove away onto a highway at a high rate of speed. When the victim began to scream, the defendant told her to stop or he would cut off her head. Reeves went to a nearby hospital and contacted the police.
During the drive, the victim was crying and asked the defendant why he was doing this to her. He told her that this would teach her not to be out so late, and that this would be a lesson to her. He also put his hand inside her shirt and touched her chest, and would not stop doing so when she told him to stop. She asked him to stop the car and let her out, but he refused.
After leaving the highway, the defendant, who was wearing a New York Giants sweatshirt, took another New York Giants sweatshirt from inside the car, wrapped it around the victim's head and pushed her down in the seat. He continued to drive, and eventually parked the car on a hill. The defendant led the victim, the sweatshirt still wrapped around her head, out of the car, over a gravel surface, up some wooden steps, through two doors that the defendant opened with keys, and into a room where the defendant removed the sweatshirt from the victim's head.
The victim was in a living room with wall-to-wall carpeting. The defendant brought her through a kitchen, which contained a double-door refrigerator, into a hallway that opened onto a bedroom on each side and a bathroom at the end. The defendant took her into one of the bedrooms. That room contained a waterbed with a wooden headboard, a dresser arranged "kittie-cornered," two closets--one with sliding doors, containing women's clothes--and a plaque on the wall that looked like it came from a bar. The lights were on.
The defendant ordered the victim to take off all of her clothes. She complied because she feared for her life. The defendant removed his clothes, put a blanket on the bed and turned off the lights. He made the victim lie down on the bed. He tried to put his penis into the victim's mouth but she refused. He then penetrated her vagina with his penis, but he could not maintain an erection. The defendant then began to insert his fingers into the victim's vagina. He took some cream from the headboard, put the cream on his hands, inserted all his fingers into her vagina, and made a fist and pushed it into her vagina. When the victim began to scream, the defendant put a pillow over her head and told her to "shut up." The victim heard a tearing sound in her vagina and felt herself begin to bleed.
When the defendant saw the blood, he told the victim to get dressed. The defendant then put the sweatshirt back over the victim's head and led her back to the car. After driving for approximately ten minutes, he stopped the car, pushed the victim out and drove away. The victim removed the sweatshirt and left it on the street, where it was later retrieved by the New Haven police.
The victim walked to a gas station, where the police were called. The victim was taken by ambulance to the hospital, where she underwent surgery for a laceration of the vagina that extended the full length of the vaginal canal. This injury was consistent with a fist having been made inside the vagina.
At approximately 6:30 a.m., the defendant called Zumbo and they reconciled. After he picked her up at her mother's house, they returned to their apartment. Zumbo noticed that the quilt was off the bed. The defendant said that he had spilled tea on it, that he had washed it and that it was in the dryer. The defendant had never washed the bedding or quilt before, because that was ordinarily Zumbo's responsibility. Zumbo checked the dryer and found the quilt in it.
On November 2, 1987, after the victim had been released from the hospital, in the company of the police she identified the defendant's car. She also positively identified the defendant from a twelve person photographic array as the person who had kidnapped and assaulted her. On the same day, Reeves also identified the defendant's car and photograph.
The defendant was arrested later that day and brought to the New Haven police department where, after waiving his Miranda rights, 3 he denied any involvement with the victim. He admitted owning the car identified by the victim and Reeves, however, and told the police that only he and Zumbo had access to it. He also told the police that he had been with Zumbo in their apartment from 7 p.m. on October 23, 1987, until the next morning.
Later that evening, the New Haven police searched the defendant's apartment, and seized a jar of Vaseline petroleum jelly from the master bedroom and two New York Giants sweatshirts. They also took numerous photographs of the interior of the apartment and the exterior of the building.
The defendant first claims that the trial court denied him due process of law by refusing to instruct the jury specifically on the issue of identification. It is undisputed that the court did not give a specific instruction on identification. 4 Relying on our language in State v. Tatum, 219 Conn. 721, 733 n. 18, 595 A.2d 322 (1991), 5 the defendant argues that, although neither the victim nor Reeves was uncertain of her identification of the defendant, their testimony regarding that identification and the defendant's car was so confused and inconsistent 6 that, "given the defense reliance on the theory of misidentification, it was reversible error for the trial court to refuse to instruct the jury specifically that the State bore the burden of proving identification beyond a reasonable doubt." The defendant further contends that "it was incumbent upon the trial court to give the cautionary identification instruction requested by the defense," 7 and since that instruction was not given, the "defendant was denied due process of law by the failure of the court to instruct on identification...." We disagree.
Neither State v. Tatum, supra, nor any of the other cases upon which the defendant relies; see United States v. Telfaire, 469 F.2d...
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