State v. Dudley

• Decision Date: 26 February 2002
• Docket Number: (AC 19701)
• Citation: 791 A.2d 661,68 Conn. App. 405
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. RODERICK DUDLEY

68 Conn. App. 405

791 A.2d 661

STATE OF CONNECTICUT v. RODERICK DUDLEY

(AC 19701)

Appellate Court of Connecticut.

Argued October 29, 2001.

Officially released February 26, 2002.

Foti, Mihalakos and Dranginis, JS. G. Douglas Nash, public defender, with whom were Jason C. Welch, certified legal intern, and, on the brief, Pamela S. Nagy, former assistant public defender, and Rebekah L. Sprano, certified legal intern, for the appellant (defendant).

John A. East III, assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Robin Cutuli, assistant state's attorney, for the appellee (state).

Opinion

DRANGINIS, J.

The defendant, Roderick Dudley, appeals from the trial court's judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1). On appeal, the defendant claims that (1) he was deprived of a fair trial by prosecutorial misconduct during the trial and during closing argument, (2) the court improperly admitted testimony on collateral matters and in violation of the defendant's sixth amendment right to counsel, (3) he was deprived of a fair trial by the court's interference and (4) the court improperly considered defense counsel's misconduct during the defendant's sentencing. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim and the defendant became acquainted after meeting each other in their neighborhood. Thereafter, the defendant sporadically visited the victim at her apartment. They would play video games and, on one occasion, smoke crack cocaine together. On one evening at the victim's apartment, the two consumed alcohol together. The victim became tired and informed the defendant that she wanted him to leave so that she could go to sleep. He refused and demanded sexual favors. He forced her onto her bed and pinned her down. The victim, in an attempt to forestall the attack, told the defendant that she needed to take her seizure medication. The defendant temporarily let her get up from the bed, but followed her and ordered her to return to the bed. He again pinned her down and, wearing a condom, forced her to have vaginal intercourse. The victim repeatedly said "no," struggled with the defendant and covered her mouth with her hand to keep him from kissing her. After completing the sex act, the defendant threw the condom in the toilet bowl. He then dressed and left the apartment.

The victim ran out of the apartment to a nearby friend's apartment. She confided in a friend, Nina, who lived nearby, that the defendant had raped her, and the two called the police. Responding police saw the defendant on the street, whereupon the victim identified him. She then submitted to a medical examination and gave the police a signed statement.

Upon questioning by the police, the defendant initially denied ever having had sexual intercourse with the victim. At trial, however, the defendant testified that he and the victim had smoked crack cocaine and drank alcohol all day, and that they engaged in consensual sex. He claimed that the victim concocted the rape story when she became angry that he took her money and left to buy more cocaine, but did not return.

The jury returned a guilty verdict, and the court sentenced the defendant to fifteen years in the custody of the commissioner of correction. This appeal followed. Additional facts will be set forth as necessary to resolve the issues on appeal.

I

The defendant first claims that he was denied a fair trial because of a pattern of prosecutorial misconduct. Specifically, the defendant claims that the prosecutor improperly (1) questioned the defendant on cross-examination, (2) commented on the defendant's exercise of his constitutional rights, (3) vouched for the credibility of a witness, (4) appealed to the jury's emotions and (5) referred to facts not in evidence. We are not persuaded.

"Prosecutorial misconduct may occur in the course of cross-examination of witnesses ... and may be so clearly inflammatory as to be incapable of correction by action of the court.... In such instances there is a reasonable possibility that the improprieties in the cross-examination either contributed to the jury's verdict of guilty or, negatively, foreclosed the jury from ever considering the possibility of acquittal." (Internal quotation marks omitted.) State v. Daniels, 42 Conn. App. 445, 456, 681 A.2d 337, cert. denied, 239 Conn. 928, 683 A.2d 397 (1996).

"Prosecutorial misconduct can [also] occur in the course of closing argument.... Our standard of review of a claim of prosecutorial misconduct that allegedly results in an unfair trial is well established. [T]o deprive a defendant of his constitutional right to a fair trial ... the prosecutor's conduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process.... We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.... Moreover, [w]e will not afford [relief under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), to unpreserved] claims of prosecutorial misconduct where the record does not disclose a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant's right to a fair trial....

"In determining whether the defendant was denied a fair trial we must view the prosecutor's comments in the context of the entire trial.... In examining the prosecutor's argument we must distinguish between those comments whose effects may be removed by appropriate instructions ... and those which are flagrant and therefore deny the accused a fair trial.... The defendant bears the burden of proving that the prosecutor's statements were improper in that they were prejudicial and deprived him of a fair trial.... In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the misconduct was invited by defense conduct or argument ... the severity of the misconduct... the frequency of the misconduct ... the centrality of the misconduct to the critical issues in the case ... the strength of the curative measures adopted ... and the strength of the state's case." (Citations omitted; internal quotation marks omitted.) State v. Jefferson, 67 Conn. App. 249, 266-67, 786 A.2d 1189 (2001), cert. denied, 259 Conn. 918, 791 A.2d 566 (2002). With that standard of review in mind, we now turn to each of the defendant's specific claims of misconduct.

A Cross-Examination

The defendant's first claims involve the cross-examination of the defendant. The following additional facts are necessary for our resolution of those claims. During the investigation, the police found a discarded condom in the victim's toilet bowl. Scientific evidence established that it contained the defendant's semen. The defendant, however, initially denied having had sex with the victim on the night of the rape, but admitted having had sex with her two weeks prior. The defendant later changed his story and admitted that they had had sex on the night of the alleged rape, but claimed that it was consensual. The state's theory, therefore, became that the defendant had changed his story upon learning that police found the condom containing his semen.

On cross-examination of the defendant, the state asked whether he changed his story to consensual sex because he found out that police had discovered the condom.¹ The defendant sought a mistrial, arguing that the state had pointed out what his defenses were and how they changed, and, in the alternative, he requested that a curative instruction be given to the jury that he need not prove his innocence. The court denied the defendant's motion for a mistrial and agreed that such an instruction would be given. The defendant urged that the court give a curative instruction indicating that the prosecutor should not have inquired about the defendant changing his defense. The court responded only that it might make some reference to it.

The defendant argues on appeal that the state's questioning was an improper attempt to persuade the jury that the defendant was not credible because of changes in his defense strategies, thereby introducing information that was not properly admitted into evidence. We are not persuaded. "It is fundamental that for the purpose of impeaching the credibility of his testimony, a witness may be cross-examined as to statements made out of court or in other proceedings which contradict those made upon direct examination.... This is based on the notion that talking one way on the stand, and another way previously, raises a doubt as to the truthfulness of both statements." (Internal quotation marks omitted.) State v. Valentine, 240 Conn. 395, 411, 692 A.2d 727 (1997). The record makes it clear that the prosecutor's questioning, although inartfully phrased, merely was an attempt to impeach the defendant's credibility by pointing out his prior inconsistent statements.

The defendant further contends that the state's questions raised the inference that he was obliged to prove his innocence. We do not agree. "Unless there is a clear indication to the contrary, a jury is presumed to follow the court's instructions." (Internal quotation marks omitted.) State v. Coughlin, 61 Conn. App. 90, 96, 762 A.2d 1 (2000), cert. denied, 255 Conn. 934, 767 A.2d 105 (2001). We conclude that the court's instruction on that point cured any harm that may have resulted.²

Finally, the defendant argues that the questioning constituted an improper comment on his...