State v. Davis

• Decision Date: 01 November 2000
• Docket Number: No. 18619,18619
• Citation: 61 Conn. App. 621,767 A.2d 137
• Court: Connecticut Court of Appeals
• Parties: (Conn.App. 2001) STATE OF CONNECTICUT v. JAMES DAVIS

767 A.2d 137 (Conn.App. 2001)

STATE OF CONNECTICUT v. JAMES DAVIS

No. 18619

APPELLATE COURT OF CONNECTICUT

November 1, 2000, Argued

February 6, 2001, Decided.

Michelle M. Napoli, for the appellant (defendant).

Susann E. Gill, senior assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Stephen J. Sedensky, senior assistant state's attorney, for the appellee (state).

Before: Lavery, C. J., and Mihalakos and Zarella, JJ.

OPINION:

ZARELLA, J.

The defendant, James Davis, 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) (1),¹ sexual assault in the second degree in violation of General Statutes 53a-71 (a) (1),² risk of injury to a child in violation of General Statutes 53-21 (2)³ and unlawful restraint in the second degree in violation of General Statutes 53a-96.⁴ On appeal, the defendant claims that the court improperly (1) denied his motion to suppress an out-of-court identification, (2) denied his motion for judgment of acquittal and (3) instructed the jury as to the element of force in its charge on the offense of sexual assault in the first degree. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the afternoon of April 29, 1997, the victim, a fourteen year old girl, walked with her friend M⁵ from the victim's home to the apartment where M lived. As the two walked, they came upon two men, one of whom was identified later as the defendant. The men were standing at the end of the driveway leading into the apartment complex. The defendant, age twenty-two, briefly spoke with the two girls as they passed. The defendant further engaged the victim in a brief conversation as she again passed the two men on her return home.

Shortly thereafter, the victim passed the defendant and his companion for a third time as she walked from her home and through the complex to a nearby store. As the victim walked by the two men, the defendant asked who was in her house, to which the victim responded her grandmother, grandfather, mother and cousins. The victim passed the defendant and his companion for a fourth time on her return trip from the store. Soon after arriving home, the victim's grandmother asked her to return to the store. Although the victim did not see either of the two men as she again walked to the store, she saw both of them in the driveway when she returned. The defendant was wearing a yellow and black jacket in addition to the white T-shirt and black pants that the victim saw him wearing earlier. As the victim passed the defendant and his companion for the fifth time, the defendant told her to "go put your stuff in the house and come here." The victim continued walking toward her home. Once there, the victim repeatedly looked out the window to determine whether the defendant remained in the driveway.

After noticing that neither the defendant nor his companion was in the driveway, the victim left her home and walked to the store for a third time. As the victim walked through the complex on her way to the store, she noticed the defendant standing alone on the steps to building number five. The defendant called to the victim, "Come here, I wanna show you somethin'." The victim walked up the stairs nearer to the defendant. As the victim came closer, the defendant grabbed her arm and led her into the basement of the building. The defendant then led the victim down a hallway and up a stairwell, where he began to grope her between the legs and threatened, "If you tell, I'm gonna kill you." The victim partially removed her pants under threat and laid down as the defendant instructed. The defendant got on top of the victim and, as the victim attempted to slide away from the defendant, he inserted his penis into her vagina. Within minutes of the assault, the defendant heard someone in the stairwell and ran from the basement.

The victim immediately dressed and went home. Soon after arriving home, the distraught victim informed her grandmother and M, who had returned to the victim's home, of the assault. The police were called and the victim was transported to the hospital. Meanwhile, M and the victim's uncle accompanied the police in a search for the defendant. The defendant and his companion were located in a park that is within walking distance of the apartment complex. M identified the men as the two individuals that she and the victim had seen earlier in the day. The police placed both the defendant and his companion into a waiting police cruiser. M returned home while the officers proceeded to the hospital with the two men.

Officer Faith Tyghter of the Bridgeport police department interviewed the victim at the hospital. The victim described her assailant "as a black male, slender build, [having] corn rows hairstyle, approximately six feet" and stated that "he was wearing a yellow and black jacket, white T-shirt and a black pair of pants." Tyghter went outside to the police cruiser, recognized the suspect who fit the description and brought him to the victim's hospital room for identification. After the suspect was removed from the room, the victim identified the individual, the defendant in this case, as her assailant. The victim also identified the defendant in a photographic array on May 15, 1997, and again in court.

The defendant was charged with sexual assault in the first and second degrees, risk of injury to a child and kidnapping in the first degree. He was convicted of each of the sexual assault offenses and of risk of injury to a child. Although the defendant was found not guilty of kidnapping in the first degree and of the lesser included offense of kidnapping in the second degree, he was found guilty of the lesser included offense of unlawful restraint in the second degree. The defendant received a total effective sentence of twenty years imprisonment, execution suspended after fifteen years, and ten years probation. This appeal followed.

I

The defendant first claims that the court improperly denied his motion to suppress the identification at the hospital because it violated his right to due process under the fifth⁶ and fourteenth⁷ amendments to the United States constitution and article first, 8⁸ and 9,⁹ of the constitution of Connecticut.

The following additional facts and procedural history are necessary for our resolution of this claim. On or about June 5, 1997, the defendant filed a motion to suppress the out-of-court identification and his statement to the police.¹⁰ A pretrial hearing on the motion was held on March 2, 1998, at which time the state called the victim as a witness. She testified that on the afternoon of April 29, 1997, she passed the defendant and another male at the end of the driveway leading into the complex several times during the afternoon preceding the assault. Each time she passed the defendant and his companion, the defendant engaged her in a brief conversation. She further testified that the defendant was wearing a yellow and black jacket over a white T-shirt and black pants.

The victim testified that shortly after returning from her second trip to the store, she decided to walk to the nearby store for a third time. Although the victim did not see either of the two men as she walked up the driveway to the complex en route to the store, she came upon the defendant as she walked past building number five. The defendant, who was still wearing the yellow and black jacket with the white T-shirt and black pants, was standing at the top of the stairs to the building. He called out to her, "Come here, I want to show you somethin'." He motioned her toward the basement of the building and led her into the basement and up a staircase where the sexual assault took place.

The victim further testified that while at the hospital, she gave a description of the defendant to Tyghter. The victim recounted that Tyghter "kept going out the door, [saying] 'we got him, we got him. . . . We had two boys. You got to tell which one, who it is.' And so she [brought] the boy that I recognized, the one that took me down to the basement." She further testified that she identified the defendant and that he was still wearing the yellow and black jacket, white T-shirt and black pants that he was wearing earlier.

The state then called to the witness stand Tyghter, the officer who interviewed the victim at the hospital. According to her testimony, the victim identified her assailant as a slender black male with a brown complexion, light facial hair and a corn row hairstyle, wearing a yellow and black jacket, white T-shirt and black pants. Tyghter further testified that she relayed this information to another officer, who located the defendant and another male and transported them to the hospital for a positive identification. After they arrived at the hospital, Tyghter went to the police cruiser, selected the suspect who more closely matched the given description and brought him into the hospital. After the victim consented to a face-to-face identification, Tyghter presented the defendant to the victim. After the defendant was removed from the room, the victim identified him as the person who assaulted her.

On cross-examination, Tyghter testified that she selected the defendant over the other individual in the police cruiser based on the victim's description of the suspect's clothing, facial hair and hairstyle, and because the other individual was clean shaven. She further testified that she did not present the other individual to the victim "because it was a true identity."

The court, thereafter, denied the defendant's motion to suppress the identification. The court reasoned that the identification was valid because "under the totality of the circumstances . . . [the victim] had a sufficient opportunity to observe the accused on a number of occasions, had seen him before, and [be...