State v. Esposito

• Decision Date: 07 February 1984
• Citation: 192 Conn. 166,471 A.2d 949
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Andrew ESPOSITO.

Page 949

471 A.2d 949

192 Conn. 166

STATE of Connecticut v. Andrew ESPOSITO.

Supreme Court of Connecticut.

Argued Nov. 2, 1983.

Decided Feb. 7, 1984.

G. Douglas Nash, Asst. Public Defender, with whom was Kenneth Rosenthal, Asst. Public Defender, for appellant (defendant).

William P. Mahoney, legal intern, with whom were Robert J. O'Brien, Asst. State's Atty., and, on the brief, Arnold Markle, State's Atty. and Guy W. Wolf III, Asst. State's Atty., for appellee (state).

Before SPEZIALE, C.J., and PETERS, ARTHUR H. HEALEY, PARSKEY and SHEA, JJ.

PARSKEY, Associate Justice.

On a trial to a jury the defendant was convicted of the crimes of kidnapping in the second degree and sexual assault in the first degree in violation of General Statutes §§ 53a-94(a) and 70(a)(1) respectively. In his appeal the defendant asserts that the trial court erred in (1) admitting evidence of a prior sexual assault; (2) permitting the state's medical expert to give testimony concerning other rape complainants; and (3) denying the defendant's oral motion to inspect or to have the court inspect in camera psychiatric records of the victim-witness. We find no error.

The jury could reasonably have believed the following facts. The complainant, Ms. B, was employed at a division of the Office for the Comprehensive Employment and Training Act Program (CETA) in New Haven. About one o'clock in the afternoon of May 24, 1979, she left her place of employment and walked to the Blubartz Cafe for lunch. There she met an acquaintance who was accompanied by two friends, one of whom was the defendant. The defendant and B had met once several years previously. In the course of their conversation B learned that the defendant worked for another division of CETA in New Haven and that the two of them had mutual acquaintances. Eventually the others departed leaving the defendant alone with B. The defendant told B that he had to go to his CETA division office and pick up a check as he would soon be going to California on a vacation and requested that she accompany him. B agreed, and the two left after finishing the beers which they had been drinking.

B and the defendant arrived at the office, where the defendant went off, apparently to take care of his stated business. He returned a short while later and the two left the office. As they were crossing an adjoining parking lot, the defendant pulled out a knife, which he placed against B's throat. Stating that he had used a knife before, he grabbed B's arm and forced her to accompany him to his apartment which was several blocks away.

At the apartment the defendant continued to display the knife, and repeated that he had used it before and would not be afraid to use it again. The defendant then forced B to have sexual relations with him, compelling her to submit to oral and vaginal intercourse. After raping her, the defendant showed B a picture of his children. He then accompanied her back to the Blubartz Cafe.

B also testified to various events which took place later that day, including her being threatened by the defendant and her informing her boyfriend and the police about the assault. Later that evening when B was examined at the Yale-New Haven Hospital by Dr. Stephanie Spangler, she exhibited no evidence of trauma in the vaginal area.

EVIDENCE OF PRIOR SEXUAL OFFENSE

The state offered evidence that some five weeks before the date of this crime, the defendant had sexually assaulted Ms. Y. The state claimed that the evidence would show a common design or plan. The defendant objected on the grounds that the two incidents were not sufficiently similar to constitute a common design or plan and that, in any event, the evidence should be excluded because its prejudicial impact outweighed its probative value. The trial court properly admitted the evidence.

Evidence of similar but unconnected crimes is excluded because it violates the rule of policy which forbids the state initially to attack the character of the accused and also the rule of policy that bad character may not be proved by particular acts. State v. Jenkins, 158 Conn. 149, 152, 256 A.2d 223 (1969); State v. Gilligan, 92 Conn. 526, 530, 103 A. 649 (1918). "On the other hand, evidence of crimes so connected with the principal crime by circumstance, motive, design, or innate peculiarity, that the commission of the collateral crime tends directly to prove the commission of the principal crime, or the existence of any essential element of the principal crime, is admissible. The rules of policy have no application whatever to evidence of any crime which directly tends to prove that the accused is guilty of the specific offense for which he is on trial." State v. Jenkins, supra, 158 Conn. 152-53, 256 A.2d 223. The state claims that the offered evidence was admissible to show a common design or plan. Evidence of prior sex offenses committed with persons other than the prosecuting witness is admissible to show a common design or plan where the prior offenses (1) are not too remote in time; (2) are similar to the offense charged; and (3) are committed upon persons similar to the prosecuting witness. People v. Thomas, 20 Cal.3d 457, 464, 143 Cal.Rptr. 215, 573 P.2d 433 (1978); People v. Jackson, 102 Cal.App.3d 620, 625, 162 Cal.Rptr. 574 (1980). In this case the prior offense is not too remote, allegedly having occurred some five weeks before the offense charged, and the victim of the previous offense was similar to the prosecuting witness. The only remaining questions, therefore, are whether the prior offense was sufficiently similar to the offense charged to show a pattern of common design or plan and if so whether, on balance, the evidence should have been excluded.

Y, who was 28, testified that on April 16, 1979, she had been arrested on a disorderly conduct charge as a result of an altercation with her estranged husband. Later, when she was released, she found herself in a part of New Haven with which she was not familiar. She crossed the street and waited for a cab in front of the railroad station. While she was waiting, the defendant, accompanied by another man, walked up and began speaking with her. Y and the defendant had met on one previous occasion, having been introduced to each other by a mutual friend. In response to questioning by the defendant Y explained that she was waiting for a cab or bus to take her downtown. The defendant stated that he was headed in that direction and asked whether she wanted to walk with him. Y agreed and the three of them began walking. Eventually the other man went off in a different direction leaving the defendant alone with Y.

As they were walking they came up to the Nutmegger Bar, and the defendant suggested that they go in and have a drink. They went inside and the defendant ordered two beers, both of which he eventually drank. The defendant also arranged with a friend there that he and Y be given a lift home. While in the bar Y told the defendant about the incident for which she had been arrested, and in general about the difficulties she had had with her husband. The defendant then told her that he was moving to New York and that he had some furniture which he was selling at a very low price. Y agreed to go see it and when they left the bar the defendant's friend drove them to the defendant's apartment.

While the friend waited in the car, Y and the defendant went upstairs. Inside the apartment the defendant showed her the items he said were for sale and also some pictures of his son. Eventually, the friend downstairs began blowing the car horn. At this point, the defendant pulled out a knife and held it to Y's throat. Stating that he had nothing to lose because he had "a lot of time" facing him, the defendant ordered her to keep quiet and to remove her clothes. Y complied and the defendant then sexually assaulted her, forcing her to engage in oral and vaginal intercourse, all the while retaining hold of the knife. He then had Y get dressed and walked her to her home, which was two blocks away from his own. Because she was afraid of the defendant, who lived so near to her, Y waited a few days before contacting the police and eventually chose not to have the matter prosecuted.

It is a matter of common knowledge that persons engaged in criminal activity have a tendency to commit the same type of offense each time the same way. This modus operandi is the hallmark of criminal activity. Identity evidence may serve a variety of purposes. As a criminal logo it may identify a person. It may also characterize a particular crime and thus negative other inferences or explanations. Common plan evidence, for example, may negative a claim that specific conduct resulted from accident or inadvertence, or was justified by self-defense. State v. Jenkins, supra, 158 Conn. 156, 256 A.2d 223. In a sexual assault case, it may serve to negative a claim that the sexual intercourse engaged in by the parties was consensual. People v. Jackson, supra.

When evidence of other offenses is offered to show a common plan or design the marks which the uncharged and the charged offenses have in common must be such that it may be logically inferred that if the defendant is guilty of one he must be guilty of the other. People v. Cramer, 67 Cal.2d 126, 129, 60 Cal.Rptr. 230, 429 P.2d 582 (1967). "It is apparent that the indicated inference does not arise, however, from the mere fact that the charged and uncharged offenses share certain marks of similarity, for it may be that the marks in question are of such common occurrence that they are shared not only by the charged crime and defendant's prior offenses, but also by numerous other crimes committed by persons other than defendant. On the other hand, the inference need not depend upon one or more unique or nearly unique features common to the charged and uncharged offenses, for features of substantial but lesser distinctiveness, although insufficient to raise the...