State v. Evans
| Decision Date | 15 December 1987 |
| Docket Number | No. 12968,12968 |
| Citation | 534 A.2d 1159,205 Conn. 528 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. William EVANS. |
Michael E. O'Hare, Asst. State's Atty., with whom were John M. Massameno and Frank D'Addabbo, Assistant State's Attys., for appellant (State).
Hubert J. Santos, Hartford, for appellee (defendant).
Before HEALEY, CALLAHAN, GLASS, COVELLO and HULL, JJ.
The state has appealed from a decision of the trial court granting the defendant's motion to dismiss a substitute information. Specifically, the state claims that the trial court erred when it held that the inability of the state to allege the specific date of the occurrence of the crimes charged warranted a dismissal. We agree.
According to the affidavit in support of the warrant for the defendant's arrest, Sharon K. of Manchester came to the Glastonbury police department on December 14, 1984, and reported that her son, J, then fourteen years old, had been sexually abused by the defendant. She stated that while attending a family counseling session in New Hampshire on December 11, 1984, she had learned about the incident from her son. According to Sharon K. the incident occurred at Evans House at 203 Williams Street, Glastonbury. Evans House is an alcoholic half-way house and the defendant, William Evans, was the executive director of the program. He resided at the house until his resignation in mid-October, 1984. Sharon K. described her family's relationship with the defendant as a close friendship. J attended Evans House during the summer of 1984 for counseling for alcohol abuse. On December 17, 1984, J was interviewed by Glastonbury police officer S. MacKinnon. J told MacKinnon that on a weekend in July, 1984, he was in the Evans House television room with the defendant and the defendant asked him if he "had ever done it with a man before?" J said "no" and ignored the defendant. The defendant suddenly grabbed J by the upper arm, pulled him to his feet and pushed him into the defendant's bedroom upstairs. In the bedroom the defendant took his clothes off and then undressed J. J stated that the defendant began feeling and nibbling his body and forced him to submit to fellatio for about ten minutes. The defendant then made J perform fellatio on him, and after doing so for a short time the defendant abruptly released him and went into the bathroom. J dressed and went back downstairs. J also recalled that the defendant later told him not to say anything about the incident because he, the defendant, was an important person in the community and it would hurt many people if anything was said about the matter. From other interviews MacKinnon was informed that the defendant terminated work at Evans House in mid-October, 1984, and his resignation was effective November 1, 1984. After his resignation at Evans House the defendant became a referrals counselor in New Hampshire until he resigned on December 19, 1984, after he had been confronted with the allegations of Sharon K. that he had sexually abused her son.
Initially the defendant was charged in an undated six count information with several sexual offenses arising out of the alleged incident. In counts one and two of the information he was charged with sexual assault in the first degree in violation of General Statutes § 53a-70(a). 1 In counts three and four he was charged with sexual assault in the second degree in violation of General Statutes § 53a-71(a)(1). 2 In count five he was charged with unlawful restraint in violation of General Statutes § 53a-95(a). 3 In count six he was charged with risk of injury to a minor in violation of General Statutes § 53-21. 4 The original information alleged that the offenses were committed "on or about July, 1984," in Glastonbury. On April 24, 1985, the defendant filed a motion for a bill of particulars requesting specifically the "date and time of the offense." On February 4, 1986, a substitute 5 information was filed changing count two to the charge of an attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49(a)(2) 6 and 53a-70(a), and changing count four to an attempt to commit sexual assault in the second degree in violation of General Statutes §§ 53a-49(a)(2) and 53a-71(a)(1). The allegation as to the time of the offense and the allegations in all of the other counts remained the same as charged in the original information.
In response to the defendant's motion, on February 10, 1986, the state filed a bill of particulars alleging that the offenses occurred "during the late afternoon, early evening hours, on one of the last two weekends in July, 1984." This response restricted the occurrence of the offenses to one of four possible dates, July 21, 22, 28 or 29, 1984. Prior to trial on February 10, 1986, the defendant filed a motion to dismiss the information on the ground that "as to date and time" the information was "not specific enough for him to assert an alibi defense, to confront his accuser, and in general to adequately present a defense." On the same day the trial judge denied this motion.
On February 13, 1986, after the jury had been selected and sworn, the defendant filed another motion requesting further particulars and in the alternative to dismiss the charges. In this motion he renewed his request for a more specific date of the offenses. The defendant also alleged that he had evidence to support an alibi defense for three of the four days disclosed by the state's response to his motion for a bill of particulars. After oral argument the trial court again denied the motion to dismiss.
On the following day, February 14, 1986, counsel for the defendant provided the court with the affidavits of three alibi witnesses. The affiants ostensibly provided the defendant with alibis for July 22, 28 and 29, 1984. No alibi witness or affidavit was offered for July 21, 1984, one of the days disclosed by the state as a possible date of the offenses. The trial court then reconsidered the defendant's motion to dismiss, reversed its prior decision and granted the defendant's motion to dismiss on February 14, 1986. The case was dismissed before the presentation of any evidence. In rendering its decision the trial court stated:
Immediately the state excepted to this ruling and requested permission to appeal. At the request of the defendant the case was dismissed with prejudice and over the exception of the defendant the court granted the state's request for permission to appeal. After the appeal had been filed in the Appellate Court the defendant moved to dismiss the appeal, claiming that the state's appeal was barred by double jeopardy. After oral argument the Appellate Court denied the motion without an opinion on April 10, 1986. Thereafter, pursuant to Practice Book § 4023 this court transferred the appeal to itself.
The basic claim of the state on appeal is that the trial court erred in granting the defendant's motion to dismiss the substitute information. We agree. We reject the defendant's claim that the state's appeal be dismissed on the ground of double jeopardy, or in the alternative that the action of the trial court be affirmed.
It is undisputed that the jury had been sworn but that the state had presented no evidence before the motion to dismiss was granted. Moreover, in its oral memorandum of decision the trial court went to great pains to disclaim any factual finding of the defendant's guilt or innocence. Nonetheless, the defendant claims that " 'the ruling of the judge, whatever its label, actually represents a resolution [in the defendant's favor], correct or not, of some or all of the factual elements of the offense charged.' " United States v. Scott, 437 U.S. 82, 97, 98 S.Ct. 2187, 2197, 57 L.Ed.2d 65 (1978), quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1355, 51 L.Ed.2d 642 (1977). In support of his claim the defendant asserts that it is the general rule in Connecticut that "[t]ime is not an essential ingredient of the crime of rape and it can be proved to have been committed at any time before the date of the information and within the period of the Statute of Limitations unless the date should become material in some way, as where a defense of alibi is to be made." State v. Horton, 132 Conn. 276, 277, 43 A.2d 744 (1945).
The defendant claims that his defense is alibi and the date of the alleged crime is material to his defense. Generally, any time that an alibi is asserted as a defense to a criminal charge the precise time that the offense is alleged to have been committed is material to the defense. But the effectiveness of the alibi claim is a factual question that is best left to the trier for determination after all of the evidence has been presented. Moreover, we have never held that when the charges are sex related and alibi is the defense asserted that the trial court should dismiss the charges unless the state, in response to a request, can allege the precise date of the offenses. We particularly decline to go that far in this case because the state has specified that the offenses were committed on one of four possible days on two consecutive weekends. The fact that the defendant has proffered affidavits of three persons who support his alibi for three of the four days is of no benefit to the defendant at this stage of the proceedings. We decline to hold that as a matter of law affidavits submitted in support of an alibi defense are irrefutable and the charges...
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State v. Mancinone
...a particular moment as the time of an offense when the best information available to the state is imprecise....' " State v. Evans, 205 Conn. 528, 536, 534 A.2d 1159 (1987), quoting State v. Stepney, 191 Conn. 233, 242, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S.Ct. 1455, 79 L.E......
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State v. Kyles
...to inform the defendant of date offense charged was alleged to have been committed if state has such information); State v. Evans, 205 Conn. 528, 534 A.2d 1159 (1987), cert. denied, 485 U.S. 988, 108 S.Ct. 1292, 99 L.Ed.2d 502 (1988); State v. Stepney, supra, 191 Conn. at 242, 464 A.2d 758.......
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State v. Saraceno, 5289
...the defendant's claim ... would be more convincing.' State v. Stepney, [supra, 191 Conn. at 242, 464 A.2d 758]." State v. Evans, 205 Conn. 528, 535-36, 534 A.2d 1159 (1987). As did our Supreme Court in State v. Evans, supra, 536, 534 A.2d 1159, we "recognize that because the state has been ......
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State v. Spigarolo, 13220
...This court has addressed the issue presented by the defendant's claim on numerous occasions. See, e.g., iState v. Evans, 205 Conn. 528, 535-36, 534 A.2d 1159 (1987), cert. denied, --- U.S. ----, 108 S.Ct. 1292, 99 L.Ed.2d 502 (1988); State v. Laracuente, supra, 205 Conn. at 518-20, 534 A.2d......