State v. Dukes
| Decision Date | 21 January 1993 |
| Docket Number | No. 11147,11147 |
| Citation | 616 A.2d 800,29 Conn.App. 409 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Leroy DUKES. |
Donald D. Dakers, Sp. Public Defender, for appellant(defendant).
Leon F. Dalbec, Jr., Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and Mary Reidy, Asst. State's Atty., for appellee(state).
Before DALY, EDWARD Y. O'CONNELL and HEIMAN, JJ.
The defendant appeals from a judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the fourth degree in violation of General Statutes § 53a-73a(a)(2).1The defendant claims that the trial court improperly (1) held that the rape shield law, General Statutes § 54-86f, did not prohibit the state from introducing into evidence a statement made by the victim to her treating physician as to her lack of prior sexual relations, 2(2) found that the probative value of the statement made by the victim to her treating physician concerning her lack of prior sexual experience outweighed the possible prejudicial effect on the defendant and (3) permitted the state to substitute the crime of sexual assault in the fourth degree for a charge of sexual assault in the first degree after granting a judgment of acquittal as to the more serious offense, thereby violating the defendant's due process rights.We affirm the trial court's judgment.
The following evidence was available for the consideration of the jury, some of which was apparently rejected by it in light of its verdict.The victim, the sister of the defendant's wife, often baby-sat for her sister's three children when both the defendant and his wife were working.The defendant's wife worked at a health care facility from 11 p.m. to 7 a.m.The defendant was employed by a New Haven newspaper, and usually began work at approximately 3 a.m.When she babysat, the victim stayed the night at the apartment occupied by the defendant, his wife and his wife's children.She slept on a couch in the living room that folded out into a bed.
On November 6, 1989, at about 10:40 p.m., the defendant picked up the victim at her Hamden residence and brought her to his New Haven residence to care for his wife's children.The defendant left the residence to take his wife to work.While he was away, the victim opened the couch.She fell asleep wearing a housedress, a skirt, underpants and stockings.Her sister's three year old daughter slept with her on the couch.
At about 11:30 p.m., the victim awoke and observed the defendant, clad only in undershorts standing in the living room.She turned away from him.He then got into bed with the victim and the child.The defendant fondled the victim's breasts and thighs, and touched her vaginal area with his fingers and inserted his fingers into her vagina through her underpants.He kept telling the victim that he wanted to make a woman out of her.The victim repeatedly told the defendant to stop, but he refused.The child remained on the couch during the incident.The victim subsequently left the couch to take the child to the bathroom, telling the defendant that he should be gone when she returned.When she returned from the bathroom with the child, the defendant had gone into his bedroom.The victim was afraid to call anyone for fear that the defendant might hear her and beat her.
The defendant fell asleep in his bedroom and the victim fell asleep on the couch.At about 4 a.m., the victim awoke and heard the defendant snoring and realized that he had not left for work.She got up from the couch and knocked on the bedroom door to awaken the defendant.The defendant indicated that he did not have to work that day.He also told the victim that he wanted to apologize for his earlier actions.The victim told the defendant that any apology would have to be made in his wife's presence.He replied that it was his house and he could do what he wanted.
The defendant then grabbed the victim and pulled her onto his bed.The victim was still fully clothed.The defendant pulled up the victim's dress and touched her breasts with his mouth.He repeatedly told the victim that he wanted to make a woman out of her.The victim asked the defendant to stop.He refused.The defendant removed the victim's underpants and, after fondling her breasts, buttocks and vaginal area, penetrated her vagina with his fingers and his penis.The victim tried to push the defendant off of her, but was unable to do so.
After the incident, the defendant remained in the bedroom and the victim returned to the couch.She did not call anyone because she continued to fear what the defendant might do if he heard her.
At about 7 a.m., the victim arose and prepared the children for school.When her sister returned, the victim did not tell her what had occurred, fearing that her sister would not believe her.When she returned to the Hamden residence, which she shared with her grandmother, the victim did tell her grandmother about the incidents, and her grandmother called the police.
A New Haven police officer took the victim's statement and transported her and her grandmother to Yale-New Haven Hospital.At the hospital, the victim told Craig Newton, a social worker, and Witler Christensen, a detective from the New Haven police department, that she had been sexually assaulted by the defendant.
Patricia Rodrigues, a resident physician in obstetrics and gynecology, examined the victim.Prior to the physical examination, Rodrigues took a medical history from the victim who related that she suffered from sickle cell disease and irregular menstrual periods.She also told Rodrigues that she had never been sexually active prior to the assaults on her.The physical examination of the victim revealed that the hymenal ring had been disrupted and the vaginal cavity contained nonmotile sperm.
Prior to his arrest by the New Haven police, the defendant gave a statement to Christensen in which he admitted that he had engaged in two sexual encounters with the victim.He claimed, however, that the encounters had both been consensual.
The defendant was charged in a four count information stemming from the two alleged sexual assaults occurring at 11:30 p.m. and 4 a.m.3At the completion of the state's evidence, the defendant moved for a judgment of acquittal on each of the four counts of the information.The trial court heard argument, and, without objection on the part of the defendant, permitted the state to file an amended information charging the defendant with the crime of sexual assault in the fourth degree, 4 after first indicating its belief that the state had failed to produce sufficient evidence to permit submitting the original first count charge of sexual assault in the first degree to the jury.The trial court also rendered a judgment of acquittal on the third count of the original information charging unlawful restraint arising out of the first claimed assault.The trial court permitted the count of sexual assault in the first degree that alleged a sexual assault occurring at about 4 a.m. to be submitted to the jury 5 and, at the request of the defendant, charged the jury that sexual assault in the fourth degree was a lesser included offense thereof.6The trial court also submitted to the jury a single count of unlawful restraint in the first degree arising out of the sexual assault that was alleged to have occurred at about 4 a.m.7
The jury found the defendant not guilty of sexual assault in the first degree but guilty of the lesser included offense of sexual assault in the fourth degree.The jury also found the defendant guilty of sexual assault in the fourth degree on the basis of the actions that were alleged to have occurred at about 11:30 p.m. on November 6, 1989.The jury found the defendant not guilty of the crime of unlawful restraint in the first degree.
The trial court sentenced the defendant to a term of one year on the first conviction of sexual assault in the fourth degree and to a period of six months on the second conviction, to run consecutively.This appeal followed.
The defendant claims that the trial court improperly permitted into evidence a statement made by the victim to the examining physician at the hospital as to her lack of sexual activity prior to the sexual assaults on her by the defendant.He claims that the trial court incorrectly found that the probative value of the evidence outweighed its prejudicial nature.We do not agree.
Prior to admitting the evidence, the trial court held a hearing in the absence of the jury to determine what the testimony would be.After that hearing, the trial court indicated that it would admit the testimony and would give the jury an instruction limiting its use of the testimony.The trial court made its ruling on the basis of its determination that it would balance any potential prejudice to the defendant by its limiting instruction.8
Rodrigues, in the presence of the jury, testified that the victim stated that she had never been sexually active until this event.The subject matter of this answer was in the medical history that the physician had obtained from the victim at the time of her examination.The defendant took exception.
When objecting to evidence, counsel must succinctly reveal the basis of the objection.State v. Addazio, 169 Conn. 416, 427, 363 A.2d 153(1975);State v. Manning, 162 Conn. 112, 118, 291 A.2d 750(1971);Casalo v. Claro, 147 Conn. 625, 628-29, 165 A.2d 153(1960);State v. Manluccia, 2 Conn.App. 333, 341-42, 342, 478 A.2d 1035, cert. denied, 194 Conn. 806, 482 A.2d 711(1984).Practice Book§ 288 provides: ...
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