State v. Correia, 12840
| Decision Date | 28 April 1994 |
| Docket Number | No. 12840,12840 |
| Citation | 636 A.2d 860,33 Conn.App. 457 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut, v. Steven CORREIA. |
Francis T. Mandanici, Asst. Public Defender, for appellant (defendant).
Mary H. Lesser, Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty. and Mary E. Baran, Asst. State's Atty., for appellee (state).
Before DUPONT, C.J., and FOTI and FREDERICK A. FREEDMAN, JJ.
The defendant appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70(a), two counts of kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A) and (B), and robbery in the first degree in violation of General Statutes § 53a-134(a)(4). The defendant claims that (1) the trial court improperly (a) refused to give a jury instruction as required by State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986), and (b) refused to admit as an exhibit a prior inconsistent statement under State v. Whelan, supra; (2) the trial court improperly required the defendant to sit at the defense table and to submit to a one-on-one identification in front of the jury; and (3) the trial court improperly denied the defendant's motion for a mistrial after the state indirectly commented on the defendant's failure to testify in its closing argument. We affirm the judgment of the trial court.
The jury reasonably could have found the following facts. On November 16, 1981, the victim and her roommate went to the Agora Ballroom in New Haven. They left the bar around 1:30 a.m. and walked to the victim's car located in a nearby parking lot. The victim unlocked the car, got into the driver's seat and unlocked the passenger door. When the roommate got into the front passenger seat, she saw a man with a gun bending down at the driver's window. She said, "Oh my God." The victim turned and saw the defendant pointing a gun at her. The victim offered the defendant money and her car. The defendant responded, "Shut up and let me in." The victim unlocked a rear door and let him in the car. The defendant continued to point the gun at the victim. When the victim looked into the rear-view mirror, the defendant told her to look straight ahead and drive. At the defendant's direction, the victim drove a few blocks, and was then told to stop the car. The defendant told the victim and her roommate to get out of the car, he told the victim to open the trunk, and then ordered the roommate to get in. The defendant then locked her in the trunk.
The victim and the defendant got back into the car, the victim in the driver's seat and the defendant in the passenger seat. All the while, the defendant kept the gun pointed at the victim. The defendant demanded her money. The victim told him she had only $5 and that her roommate did not have any money. The victim gave the defendant her $5. The defendant then directed her to continue driving. After she drove a few blocks, he told her to stop and get out of the car. The defendant took her by the arm, with the gun still pointed at her, and led her to a large field. The defendant ordered the victim to remove her jacket and to lay it on the ground. He ordered the victim to remove her clothes and forced her to perform oral sex on him, and then ordered her to lie down. The defendant penetrated the victim vaginally. During the vaginal penetration, the defendant supported himself on his right elbow while he continued to point the gun, held in his right hand, at the victim. The assault lasted between fifteen and twenty minutes. After the assault, the defendant told the victim to get dressed. When she picked up her jacket, her car keys fell to the ground. The defendant and the victim tried unsuccessfully to find the keys. They went to the car to get a flashlight, returned to the field, found the car keys and walked back to the car.
When they returned to the car, the defendant told the victim to let her roommate out of the trunk. After the roommate was released from the trunk, all three got into the car. The defendant was in the backseat with the gun pointed at the victim. The victim drove until the defendant told her to stop the car. He asked the women for their addresses and phone numbers. They wrote them down and the defendant compared them with their driver's licenses and checkbooks. The defendant ordered the victim to get out of the car. He led her down the street a short distance and threatened her with harm if she went to the police.
The victim returned to the car and the defendant continued down the street. The victim told her roommate that the defendant had raped her and drove to Saint Raphael Hospital. The roommate told the emergency room staff that the victim had just been raped. The victim was examined and the police were called. Both women gave statements to the police. The next morning the victim looked through numerous photographs but was unable to identify anyone.
In 1986, five years later, the victim was contacted by Sergeant Michael Sweeney of the New Haven police department who told her he had some photographs he wanted to show her. Sweeney showed the victim an array of photographs. The victim immediately identified the defendant as the man who had kidnapped and raped her.
At trial, in 1992, the jury convicted the defendant on all counts charged. This appeal followed.
The defendant first claims that the trial court improperly refused to give a jury instruction as required by State v. Whelan, supra, and refused to admit, as an exhibit, a prior inconsistent statement under Whelan. We disagree.
The following facts are pertinent to the disposition of this claim. On the night of the sexual assault, the victim gave a written and signed statement to the police. In this statement, she told the police that her assailant had hidden his face most of the time and her only description of outstanding facial features was that she thought he might have a long chin. At trial, the victim testified that she had ample opportunities to observe the defendant, and that she would never forget his face. The defendant offered the statement given to the police on the night of the sexual assault as a prior inconsistent statement offered for its truth. Portions of the statement that the defendant claimed constituted prior inconsistent statements were read to the jury, the victim testified with regard to the statement, and the defendant extensively cross-examined the victim with regard to the statement. The trial court, however, refused to instruct the jury that the victim's statement to the police on the night of her sexual assault could be taken for its truth and refused to admit the written statement as an exhibit.
The defendant claims that the trial court improperly refused to instruct the jury that the statement to the police could be taken for its truth. To support his claim, the defendant relies on State v. Whelan, supra. Whelan sets forth the rule that a prior inconsistent statement should be admitted to prove the truth of the matter asserted, provided the statement is in writing, signed by a declarant who has personal knowledge of the facts stated, and the declarant testifies at trial and is subject to cross-examination. Id. The trial court found that the victim's statement to the police on the night of the sexual assault met the criteria set forth in Whelan.
We must, therefore, determine whether Whelan requires the trial court to instruct the jury that such prior inconsistent statements may be taken for their truth. The defendant relies on State v. Tatum, 219 Conn. 721, 595 A.2d 322 (1991), and State v. Graham, 21 Conn.App. 688, 575 A.2d 1057, cert. denied, 216 Conn. 805, 577 A.2d 1063 (1990), for the assertion that such a jury instruction is required. These cases, however, involve jury instructions that specifically instructed the jury that a prior inconsistent statement could not be used for its truth but only to impeach the witness. That is not the situation here. Here, the trial court instructed the jury to make its decision by considering The victim's prior inconsistent statements were a part of that testimony to be considered as evidence. Absent a limiting instruction, evidence presented at trial is taken for its truth. See C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.1988) § 3.5.1; 1 C. McCormick, Evidence (4th Ed.1992) § 54, and cases cited therein. Here, unlike in State v. Tatum, supra, and in State v. Graham, supra, because there was no limiting instruction made, the jury was free to take the prior inconsistent statements made by the victim as true.
The trial court did instruct the jury on credibility of witnesses. In that portion of the charge, the trial court included as one of six criteria to consider in determining a witness' credibility, an instruction that the jury may consider the consistency of a witness' testimony. This, however, is not the same as a charge that the victim's prior inconsistent statement may be used for impeachment purposes only. Absent a limiting instruction, the jury was free to take the victim's prior inconsistent statement as true. We hold that an affirmative instruction that such prior inconsistent statements may be taken for their truth, while being a correct statement of the law, is not mandatory under State v. Whelan, supra.
The defendant next claims that the trial court improperly refused to admit the prior inconsistent written statement as an exhibit.
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