State v. Figueroa

• Decision Date: 15 August 1995
• Docket Number: No. 15104,15104
• Citation: State v. Figueroa, 235 Conn. 145, 665 A.2d 63 (Conn. 1995)
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Carlos FIGUEROA.

Page 63

665 A.2d 63

235 Conn. 145

STATE of Connecticut v.Carlos FIGUEROA.

No. 15104.

Supreme Court of Connecticut.

Argued May 31, 1995.

Decided August 15, 1995.

Temmy Ann Pieszak, Asst. Public Defender, for appellant(defendant).

David J. Sheldon, DeputyAsst. State's Atty., with whom, on the brief, were James E. Thomas, State's Atty., and Warren Maxwell, Sr. Asst. State's Atty., for appellee(state).

Before PETERS, C.J., and CALLAHAN, BERDON, NORCOTT and KATZ, JJ.

NORCOTT, Associate Justice.

The defendant was convicted, after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1), ¹ kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2), ² and robbery in the second degree in violation of General Statutes § 53a-135(a)(2).³The defendant appealed from the judgment of conviction to this court, pursuant to General Statutes § 51-199(b)(3).⁴We affirm the judgment of the trial court.

From the evidence presented at trial, the jury reasonably could have found the following facts.In the early morning hours of January 1, 1984, the victim ⁵ was seated in her car outside of a friend's home in the city of Hartford when an individual, later identified by the victim as the defendant, opened her passenger side door and forcibly entered the vehicle.The defendant placed a knife to the victim's throat, ordered her into the passenger seat, got into the driver's seat and drove away at a high rate of speed.During the thirty minute ride, ⁶the defendant cursed at the victim, told her to keep her head down and not to look where they were going, and struck her several times.

The defendant eventually parked the car in an area near a gray barn in a tobacco field.He then ordered the victim out of the car.When she refused to leave the car, he ordered her into the back seat, where he began to disrobe her.When the victim expressed a fear that the defendant would rip her clothing, he allowed her to remove her own clothing.During this process, she lost a red leather belt with a distinctive belt buckle in the shape of a fish.

The defendant then sexually assaulted the victim for approximately twenty to thirty minutes.Initially, the defendant forced her to have vaginal intercourse and then, when she refused to perform oral sex on him, the defendant compelled her to have anal intercourse.After repeated assaults, both parties dressed themselves.While dressing, the defendant took the victim's gold chain, which was worth approximately $600.Because the chain had been a gift from her father and was of great sentimental value, she asked the defendant to take her car instead of the chain, but the defendant refused, stating that he needed the chain to buy drugs.

Thereafter, the defendant drove the victim back to Hartford.During the ride, the victim attempted to study the defendant's face.At that time, she was sitting in the passenger seat, approximately one and one-half feet away from the defendant.Upon arriving back in Hartford, the defendant parked the victim's car on Huntington Street and fled on foot.The victim then went to a friend's house and, later that evening, went to Mount Sinai Hospital for treatment.She reported the crimes to the police on January 3, 1984.

On March 20, 1984, the victim accompanied two investigating officers, Hartford Detective Mildred Wertz and State Trooper William Finegan, in an attempt to locate the tobacco field where the assault had taken place.During the trip, the victim identified an area near a gray barn at the Culbro tobacco farm in Ellington as the place where the assault had occurred.In addition, she identified a red belt, found by an employee of the tobacco farm near the barn, as the belt she had lost during the attack.The defendant had been employed at the tobacco farm during July and August, 1983.

In September, 1984, the victim positively identified the defendant from an array of photographs shown to her at the police station.Thereafter, an arrest warrant was issued for the defendant(September, 1984 warrant), but he could not be found.The defendant was considered a fugitive from 1984 until 1990, when he was located in New York City, at which time a new warrant was issued for his arrest.Seepart V of this opinion.

At trial for the charges relating to the victim, the defendant maintained that he was innocent of abducting and assaulting the victim and claimed that, at the time of the incident, he had been celebrating the New Year's Eve holiday with friends and relatives throughout the entire night and early morning hours.⁷

On appeal, the defendant claims that the trial court improperly: (1) denied his motion to suppress the victim's identification of him as the perpetrator; (2) admitted evidence of uncharged misconduct; (3) unfairly marshaled the evidence in its instructions concerning the uncharged misconduct; (4) denied the defendant's request for an adverse inference instruction regarding the destruction of an article of the victim's clothing; (5) denied his motion to dismiss the charges against him predicated on the grounds that the service of the warrant had been untimely; and (6) commented in its instructions explaining the principle of reasonable doubt.We address and reject each of these claims seriatim.

I

The defendant first claims that the trial court improperly denied his motion to suppress the victim's September, 1984 identification of him.The defendant argues that the identification was tainted by suggestive procedures and was not reliable.We disagree.

The following additional facts are relevant to our resolution of this issue.In December, 1992, the trial court held a hearing on the defendant's motions to suppress the victim's identification and to preclude the state from introducing evidence of uncharged misconduct.Seepart II of this opinion.At the hearing, the victim testified at length concerning her opportunity to observe her assailant and her subsequent identification of the defendant as her assailant.She testified that she had obtained a good look at her assailant, particularly during the ride back to Hartford.⁸She also testified that on January 3, 1984, she had given the police a description of the man who had sexually assaulted her.

The events between the victim's initial description of her assailant on January 3, 1984, and her identification of the defendant in September, 1984, are unclear.The victim testified that, on one or more occasions, in January and March, 1984, ⁹she had been shown photographs by the police for the purpose of identifying her assailant.She also testified that prior to September, 1984, she had identified the defendant from photographs shown to her by the police, even though she had never signed the back of a photograph signifying a positive identification.¹⁰Contradicting the victim's testimony, however, was a March, 1984 report by Wertz stating that the victim had been shown twelve photographs of Hispanic males, including the defendant, but that the "complainant was unable to make an identification."The victim also testified that at some point she saw a newspaper article from The Journal Inquirer, dated April 7, 1984, reporting that the defendant had sexually assaulted a Betty Doe¹¹ on February 19, 1984.The article included a photograph of the defendant.

In September, 1984, the victim identified the defendant as her attacker from an array of photographs.She acknowledged this identification by signing and dating the back of his photograph.At trial, the victim testified that in September, 1984, she was "positive"the defendant was her assailant.She stated that her identification of the defendant was not through the newspaper article, but rather was based solely on her memory and that she had "never [been] more positive in [her] life" of her identification.

At trial, the defendant filed a motion to suppress the victim's prior identification of him, arguing that the identification procedure was not sufficiently reliable under the totality of the circumstances to be admissible.The state argued that the victim's identification was reliable because just two days after the attack, she had given the police an accurate description of her assailant, and therefore, the evidence should be admitted.¹²

Although the trial court recognized that the identification procedure might have been suggestive, it concluded that, under the totality of the circumstances, the identification was sufficiently reliable to be admissible, regardless of whether the victim had identified the defendant's photograph in either the January or March, 1984 photographic arrays.¹³

During briefing, the defendant filed a motion for an articulation as to the basis of the trial court's decision denying his motion to suppress the identification.¹⁴SeePractice Book§ 4051.¹⁵The trial court granted the defendant's motion.In its articulation, the trial court referred to the victim's testimony regarding her identifications of her assailant prior to September, 1984, but made no finding whether the victim had identified the defendant in January or March, 1984.¹⁶

The defendant subsequently amended his appeal, moved for a review of the articulation and for permission to file a supplemental brief to address the validity of the trial court's articulation.We granted the defendant's motion for review, but denied the relief requested therein without prejudice, and granted his motion to file supplemental briefs.

In his supplemental brief, the defendant claimed that the trial court's articulation violated State v. Wilson, 199 Conn. 417, 513 A.2d 620(1986), and must be stricken from the record.¹⁷In Wilson, we concluded that a trial court's articulation must be stricken from the record if it modifies the substance of the original decision, more than four months after rendering judgment.Id., at 436-37, 513 A.2d 620.We decline to address this issue, however, because we...