State v. Ellison

• Decision Date: 23 September 2003
• Docket Number: (AC 21823).
• Citation: 830 A.2d 812,79 Conn. App. 591
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. KERMIT ELLISON.

79 Conn. App. 591

830 A.2d 812

STATE OF CONNECTICUT v. KERMIT ELLISON.

(AC 21823).

Appellate Court of Connecticut.

Argued February 26, 2003.

Officially released September 23, 2003.

Dranginis, West and Hennessy, Js. Darcy McGraw, special public defender, for the appellant (defendant).

Michele C. Lukban, assistant state's attorney, with whom, on the brief, were Paul E. Murray, state's attorney, Elizabeth C. Leaming, assistant state's attorney, Robin S. Schwartz, former assistant state's attorney, and Joy K. Fausey, former deputy assistant state's attorney, for the appellee (state).

Opinion

HENNESSY, J.

The defendant, Kermit Ellison, appeals from the judgment of conviction, rendered after a jury trial, of two counts of conspiracy to commit risk of injury to a child in violation of General Statutes § 53a-48¹ and General Statutes (Rev. to 1999) § 53-21 (1),² two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1),³ three counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1)⁴ and two counts of risk of injury to a child by impairing the morals of a child in violation of General Statutes (Rev. to 1999) § 53-21 (2).⁵ On appeal, the defendant claims that the trial court (1) improperly determined that the two counts of conspiracy to commit risk of injury to a child younger than the age of sixteen years were separate offenses rather than a single conspiracy, (2) violated his constitutional right against double jeopardy because he was convicted of both sexual assault in the second degree and risk of injury to a child younger than the age of sixteen years, (3) improperly permitted testimonial evidence in violation of the constancy of accusation rule and (4) improperly prohibited him from cross-examining a witness concerning her previous voluntary sexual relationship with one of the men present during the incident at issue.

From the evidence adduced at trial, the jury reasonably could have found the following facts. On January 4, 1999, the defendant, Howard J. Russell and Kunte Kupe brought three minor girls⁶ to a motel in Vernon. The defendant, Russell and Kupe were members of a gang. Kupe and one of the minors, J, were dating at the time of the incident.

The six people entered the motel room, which contained two beds and a separate bathroom. The defendant was sitting on one of the beds with H. The defendant then leaned on H and pushed her down. The defendant then pushed her pants past her hip and penetrated her vagina with his finger. H was moving from side to side in an attempt to make it difficult for the defendant and said, "No, not really," to him. H also told the defendant several times that she had to go to the bathroom. Eventually, H was able to get up and go to the bathroom where she talked to J. H told J that she was scared, and J offered no solutions. H testified that she thought that "bad things [were] going to happen," there was nothing she could do to improve the situation and she could not leave.

H came out of the bathroom and sat on the bed facing a table between the beds. The defendant got on top of her, held her down with his shoulders and pulled her pants down. H wiggled and moved around in an effort to prevent the defendant from penetrating her with his penis. The defendant penetrated H while she said, "Oh, my God," and repeated that she had to go to the bathroom. The defendant told H to relax and said that she was too tense. Eventually, H walked into the bathroom without her pants on. H exited the bathroom and put her pants back on. As she was getting dressed, the defendant asked her what she was doing and told her that he was not done. The defendant then told J to get in the other bed with him. At first, J told the defendant that she did not want to have sex with him, but the defendant was becoming mad, and she "had sex because [she] didn't want to get killed." J believed that she had to have sex with the defendant because she did not know what the men would do if she refused. The defendant got on top of J and he penetrated her with his penis.⁷

Later, Russell and the defendant began to discuss a plan to beat up J's brother, T. The three men had learned that T had tried to recruit the girls into the 20 Love gang and had lied about his rank in the gang. The three men had also been told that T had raped his sister, J. When the conversation began, Kupe and J were in the bathroom. When Kupe and J came into the bedroom, he joined in the conversation concerning a plan to beat up T the following day.

The next morning, on January 5, 1999, the three men took the minor girls to the home of Robin Palumbo. Russell asked the minors questions concerning T and wrote down the information they provided. The defendant and Kupe brought T to Palumbo's residence. Russell told the minors to stay in an adjacent room until he called them out. The three men started questioning T about the gang, his rank in the gang and asked if he had raped J. T denied raping J, and then Russell called the minors into the room to confront T. J stated that T had raped her, and T then admitted that he had raped J. The three men, along with some other men at the house, then began to beat T with their fists and feet. They also used free weights and a glass ashtray in the attack. J screamed and the other minors cried, but they did not try to stop the attack. T was bleeding badly from his head and "went to the bathroom on himself." Some of the men drove T somewhere while the minors stayed at the house. When they returned to the house, the defendant, Russell and Kupe then drove the minors home.

On January 13, 1999, H told her school social worker, Mary Bajana about the incident. H thought that Bajana would keep the information confidential, but Bajana was under an obligation to report the incident and informed the authorities. A police community outreach officer, Peter Slocum, then spoke with H and J about the incident, and referred the matter to the police department. H and J then gave statements to Donald Skewes and Steven Chipman, detectives with the Vernon police department. Additional facts will be set forth as they become relevant to the issues in the appeal.

I

The defendant's first claim is that the court improperly determined that the two counts of conspiracy to commit risk of injury to a child younger than the age of sixteen years were separate offenses rather than a single conspiracy. The defendant claims that the two counts related to a single conspiracy and, therefore, his conviction violated the double jeopardy clause of the fifth amendment to the United States constitution. We do not agree.

The following additional facts are relevant to the defendant's claim. In the substitute information and bill of particulars dated September 22, 2000, the defendant was charged in count one with conspiracy to commit risk of injury to a child in connection with the events that took place in the motel room. Count two charged conspiracy to commit risk of injury to a child related to the events that took place the following day when the defendant and the others beat up J's brother, T. On October 20, 2000, after the state rested its case-in-chief, the defendant filed a motion for a judgment of acquittal. The defendant argued, inter alia, that there cannot be two conspiracies for one ongoing course of conduct. During argument to the court, the state pointed out that there was evidence of a separate agreement and a plan to engage in the beating of J's brother in front of the victims. The court denied the defendant's motion and noted that the events were separate incidents and occurred on different days.

The standard of review to determine whether the defendant's constitutional right against double jeopardy was violated is de novo because it is a question of law. See State v. Tuchman, 242 Conn. 345, 350-51, 699 A.2d 952 (1997), cert. dismissed, 522 U.S. 1101, 118 S. Ct. 907, 139 L. Ed. 2d 922 (1998). The factual findings of the court that determines that issue, however, will stand unless they are clearly erroneous. Id., 351.

"The double jeopardy clause of the fifth amendment to the United States constitution provides that no person shall be subject for the same offense to be twice put in jeopardy of life or limb. This clause prohibits not only multiple trials for the same offense but also multiple punishment for the same offense. . . . This constitutional provision applies to the states through the due process clause of the fourteenth amendment.. . . Although the Connecticut constitution does not include a specific double jeopardy provision, the due process guarantee of article first, § 9, of our state constitution has been held to encompass protection against double jeopardy. . . . Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met." (Citations omitted; internal quotation marks omitted.) State v. Morris, 49 Conn. App. 409, 417-18, 716 A.2d 897, cert. denied, 247 Conn. 904, 720 A.2d 516 (1998).

"Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one. . . . The single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute. . . . For such a violation, only the single penalty prescribed by the statute can be imposed.... A single agreement to commit several crimes constitutes one conspiracy. . . . [M]ultiple agreements to commit separate crimes constitute multiple conspiracies." (Citations...