State v. Devalda
| Decision Date | 25 September 2012 |
| Docket Number | No. 18278.,18278. |
| Citation | 306 Conn. 494,50 A.3d 882 |
| Parties | STATE of Connecticut v. Arnold DEVALDA. |
| Court | Connecticut Supreme Court |
OPINION TEXT STARTS HERE
Neal Cone, senior assistant public defender, for the appellant (defendant).
Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Maureen Ornousky, senior assistant state's attorney, for the appellee (state).
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The defendant, Arnold Devalda, appeals 1 from the judgment of the trial court, rendered after a jury trial, convicting him of sexual assault in the first degree in violation of General Statutes § 53a–70 (a)(1),2496 kidnapping in the first degree in violation of General Statutes § 53a–92 (a)(2)(A),3 and, after a trial to the court, convicting him of violation of probation in violation of General Statutes § 53a–32. On appeal, the defendant claims, inter alia, that the trial court improperly: (1) omitted limiting language in instructing the jury that the phrase “ ‘without consent,’ ” as defined by General Statutes § 53a–91 (1), 4 includes “any means whatsoever, including acquiescence of the victim,” for purposes of the restraint element of § 53a–92 (a)(2); and (2) precluded the defendant from questioning the victim about certain comments that she had made in the self-description portion of her MySpace social networking website. We agree with the defendant's instructional claim with respect to his kidnapping conviction, and accordingly, reverse the judgment of the trial court in part.
The record reveals the following facts, which the jury reasonably could have found, and procedural history. On October 22, 2006, the twenty-three year old victim 5 attended a party at the Park Place Cafe' (nightclub) in Stamford with her sister, L, and two other friends, in order to see an appearance by the rapper known as Jadakiss. Prior to arriving at the nightclub at approximately 11:45 p.m., the victim and L shared a quart of Hennessy cognac. Due to crowded conditions in the nightclub, there was a very long line outside and they could not get inside until after midnight. Once inside the nightclub, the victim had a few more alcoholic drinks, including Hennessy taken both straight and mixed with Hypnotiq, which is another liquor. By the time the party ended at 2 a.m., the victim was intoxicated,6 unsteady on her feet and had difficulty speaking.
After the party ended, a disturbance broke out when members of the crowd started pushing and shoving each other while exiting the nightclub. The defendant approached the victim in the crowd and tried to start a conversation with her about whom she was with and where she was going after the party. By this time, however, the victim was “too drunk to talk” to the defendant, whom she had never met before. The defendant nevertheless tried to persuade the victim, L, and their friends to join him for something to eat.
Once outside the nightclub, one of the victim's friends left with her boyfriend, but L and others remained there with the victim, who by that time had to lean against a wall in order to stay upright. At that point, another major disturbance broke out, and police officers attempted to quell the melee by restraining and pepper spraying members of the postparty crowd. During the tumult, the defendant put his arm around the victim and guided her into his car, separating her from L and her friends. The defendant then refused the victim's request to be let out of the car in order to meet L, who was calling the victim on her cell phone. Instead, the defendant drove through local streets in Stamford, punched the victim when she tried to open the door to exit the car, and increased his speed as he entered Interstate 95 heading northbound.
The victim, who was drifting in and out of consciousness during the car ride, awoke to see that she was heading northbound on Interstate 95 between exits 17 and 18. The victim then asked the defendant to take her back to Stamford, but he refused and told her to “shut up” when she started crying. The defendant then hit the victim several times in the face whenever she cried or screamed, causing her to sustain numerous facial bruises. The defendant exited the highway and stopped the car by the entrance to Sherwood Island State Park (park), where they spent the remainder of the night in the car. While in the car outside the park, the defendant climbed on top of the victim, forced her legs apart, and sexually assaulted her vaginally, ignoring her pleas to take her home.7
After sunrise, the defendant exited the car, pulled up his pants, returned the victim's underwear to her, and drove back through Westport onto Interstate 95 heading southbound. The defendant also returned the victim's cell phone, which he had taken from her, so she could try to locate L. The defendant then drove back toward Stamford on Interstate 95, at one point pulling over at a highway rest stop in order to assist the victim in finding an earring that she had lost in his car. Although the victim, upon reaching L by telephone, asked the defendant to bring her to meet L at the Super 8 Motel in Stamford, he refused to bring her there directly, instead dropping her off at a Shell gas station nearby. Before the victim exited the defendant's car, the defendant asked for her telephone number, which she refused to provide.
Although the victim was still distraught, she obtained the license plate number from the defendant's car.8 She then met L and M, L's boyfriend, at the hotel. The police, who had been summoned by the hotel clerk, arrived shortly thereafter. An ambulance then took the victim, who remained distraught and had difficulty speaking to the police, to Stamford Hospital, where she was treated for cuts and bruises and underwent a sexual assault medical examination.9 After the state police arrested the defendant, the victim identified him as her assailant.
The state subsequently charged the defendant with sexual assault in the first degree in violation of § 53a–70 (a)(1), kidnapping in the first degree in violation of § 53a–92 (a)(2)(A), and violation of probation by engaging in criminal conduct in violation of § 53a–32 (a). The sexual assault and kidnapping charges were tried to a jury, which returned a verdict finding him guilty of kidnapping on those charges.10 The trial court, Pavia, J., then found, following a court trial, that the defendant had violated his probation. The trial court rendered a judgment of conviction in accordance with the jury's verdict and sentenced him to a total effective sentence of twenty-nine years imprisonment, execution suspended after seventeen years, and twenty-five years of probation.11 This appeal followed.
On appeal, the defendant contends that we should vacate the kidnapping conviction as a result of two problems with the jury instruction on that count, namely, that the trial court: (1) failed to instruct the jury, in accordance with State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008); and (2) improperly defined the phrase “without consent” as including “[by] any means [whatsoever], including [the] acquiescence of the victim,” without including relevant limiting language set forth in § 53a–91 (1). The defendant also contends, with respect to both the underlying criminal charges and the violation of probation charge, that the trial court violated his constitutional right of confrontation when it improperly restricted his cross-examination as to the victim's credibility by precluding him from questioning her about her self-description on her MySpace page, namely, “I do whatever it takes to get what I want or need on my own.” (Internal quotation marks omitted.) We address each claim in turn, setting forth additional facts and procedural history where necessary.
We begin with the defendant's instructional claims. In his dispositive instructional claim, the defendant argues that, in defining the term “restrain,” the trial court improperly instructed the jury that, under § 53a–91 (1), “without consent means but is not limited to deception and any means whatsoever including acquiescence of the victim.” (Emphasis added.) Seeking review of this unpreserved claim under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), the defendant contends that the trial court improperly omitted statutory language limiting the applicability of restraint via “acquiescence of the victim” only to those victims who are “child[ren] less than sixteen years old or an incompetent person and the parent, guardian or other person or institution having lawful control or custody of him has not acquiesced in the movement or confinement.” General Statutes § 53a–91 (1)(B). In response, the state concedes that this omission was a misstatement of the law, but contends that it was harmless error not requiring a new trial because the challenged instruction was superfluous to the issues in this case, inasmuch as there was no claim that the victim had acquiesced to remaining in the defendant's car. We agree with the defendant and conclude that it is reasonably possible that the improper instruction misled the jury, thus requiring a new trial on the kidnapping charge.12
The record reveals the following additional relevant facts and procedural history. After giving preliminary instructions and reading the substitute information to the jury, the trial court charged in relevant part: “The defendant is charged with the crime of kidnapping in the first degree in violation of [§ 53a–92 (a)(2)(A) ] of the Penal Code [which] provides as follows:
“A person is guilty of kidnapping in the first degree when he abducts another person and he restrains the person abducted with intent to inflict physical injury upon such person or violate or abuse that person sexually.
“For you to find the defendant guilty of this charge, the state must prove the following elements beyond a...
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