State v. Freeney, No. 14537

• Court: Supreme Court of Connecticut
• Writing for the Court: Before PETERS; CALLAHAN; In this opinion PETERS; BERDON
• Citation: 637 A.2d 1088,228 Conn. 582
• Parties: STATE of Connecticut v. Burnest FREENEY.
• Decision Date: 22 February 1994
• Docket Number: No. 14537

Page 1088

637 A.2d 1088 228 Conn. 582 STATE of Connecticut
v.
Burnest FREENEY. No. 14537. Supreme Court of Connecticut. Argued Sept. 29, 1993.
Decided Feb. 22, 1994.

Page 1089

[228 Conn. 583] Elizabeth M. Inkster, Assistant Public Defender, with whom, on the brief, was Temmy Ann Pieszak, Assistant Public Defender, for the appellant (defendant).

Mary H. Lesser, Assistant State's Atty., with whom, on the brief, were Michael Dearington, State's Attorney, and James G. Clark, Assistant State's Attorney, for the appellee (state).

Before [228 Conn. 582] PETERS, C.J., and CALLAHAN, BORDEN, BERDON and LAVERY, JJ.

[228 Conn. 583] CALLAHAN, Associate Justice.

The defendant, Burnest Freeney, was convicted by a jury of two counts of kidnapping in the first degree, in violation of General Statutes [228 Conn. 584] §§ 53a-92(a)(2)(A) and 53a-8, ¹ two counts of sexual assault in the first degree in violation of General Statutes §§ 53a-70(a) ² and 53a-8, and one count of assault in the third degree in violation of General Statutes § 53a-61. ³ He was sentenced by the trial court to concurrent ten year terms on the kidnapping counts, a concurrent one year term on the count of third degree assault, a concurrent term of eighteen years on the first sexual assault count and a consecutive term of twelve years on the second sexual assault count for a total effective sentence of thirty years. He has appealed directly to this court pursuant to General Statutes § 51-199(b)(3). On appeal, the defendant raises four issues: (1) whether his conviction of two counts of kidnapping in the first degree violated the prohibition against double jeopardy contained in the Connecticut and United States constitutions; (2) whether the trial [228 Conn. 585] court abused its discretion by admitting expert testimony regarding the reaction of assault victims to sexual and physical abuse; (3) whether the trial court abused its discretion by refusing to charge the jury that an inference other than guilt could be drawn from evidence of flight in light of the fact that the defendant was on parole; and (4) whether the trial court abused its discretion by excluding testimony that the defendant had waived his Miranda ⁴ rights and had denied kidnapping and participating in the sexual assault of the victim.

Because the defendant's conviction and sentencing on the second count of kidnapping

Page 1090

in the first degree violated his right against double jeopardy, we reverse the trial court's judgment as to that count. With respect to the remaining counts, we affirm the judgment of the trial court.

The facts leading up to the defendant's arrest and convictions can be summarized briefly as follows. On March 28, 1991, at approximately 11:30 p.m. the victim went to the home of her friend, Denise, where she met the defendant for the first time. As the victim was leaving Denise's home, the defendant asked if he could buy her a drink and she accepted. The two walked to a section of New Haven known as the "Mudhole," where the defendant purchased wine and beer at a bar. They then went back to the victim's one room apartment, which was on the third floor of a three-story building. Approximately one hour after the two had arrived at her apartment, during which time the defendant had ingested cocaine, the victim asked the defendant to leave. The defendant, however, refused to do so. He became hostile, struck the victim repeatedly and told her she was going to be his "bitch" and prostitute for him. The defendant then grabbed the victim's[228 Conn. 586] keys from her apartment door and ordered her to wear his gold chain that held a gold letter "B" to indicate she was his "bitch," or prostitute.

The defendant and victim thereafter went outside, where the defendant ordered the victim to open her coat to display her body. At one point he yelled, "$10, 15, 20--one way, round trip, get anything you want," to a group passing by on bicycles. The defendant and the victim eventually arrived at a house near the "Mudhole" where several men paid the defendant to have oral and vaginal sex with the victim in the backyard. Subsequently, while the defendant was distracted, the victim attempted to leave but two men grabbed her and yelled to the defendant that his "bitch" was trying to get away. The defendant slapped her and then took her back to her apartment.

At the victim's apartment, the defendant attempted to have intercourse with the victim. When the victim tried to dissuade him, the defendant exclaimed: "you're my prostitute, you do what I say." After sexually molesting but failing to have intercourse with the victim, the defendant locked her in her room, took her keys and left. The victim screamed but did not open the window to seek help from outside. She eventually fell asleep.

One hour later, at approximately 6 a.m., the defendant returned to the victim's apartment with an older man who, after paying the defendant $7, had sexual intercourse with the victim. Thereafter, the defendant escorted the man out and left the victim locked in her apartment for approximately one and one-half hours. The record does not indicate what the victim did during that period.

Later, at approximately 10 a.m., the defendant brought the victim back to the "Mudhole," where he again ordered her to expose herself to some men in the [228 Conn. 587] area. While there, the victim saw her friend Denise, who asked her if anything was wrong. The victim replied "nothing." Denise then told the defendant that the victim was coming with her but the defendant pulled the victim to him and replied that she was not going anywhere. The defendant struck the victim, causing her to bleed, and took her back to her apartment. Soon after the defendant and the victim had returned to the victim's apartment, Denise arrived. The victim managed to talk to Denise alone in the bathroom where she asked Denise to divert the defendant's attention so that she could escape. As the defendant accompanied Denise to the front door to see her out, the victim ran barefoot out the back door to a neighbor's house and called the police.

I

The defendant argues, and the state concedes, that the defendant's conviction and sentencing for the second count of kidnapping violates the prohibition against double jeopardy contained in the United States constitution ⁵ and the Connecticut

Page 1091

constitution. ⁶ "The proper double jeopardy inquiry when a defendant is convicted of multiple violations of the same statutory provision is whether the legislature intended to punish the individual acts separately or to punish only the course of action which they constitute. Albernaz v. United States, 450 U.S. 333, 337, 101 S.Ct. 1137 [1141], 67 L.Ed.[228 Conn. 588] 2d 275 (1981); Whalen v. United States, 445 U.S. 684, 691, 100 S.Ct. 1432 [1437], 63 L.Ed.2d 715 (1980)." (Emphasis in original.) State v. Rawls, 198 Conn. 111, 121, 502 A.2d 374 (1985).

Section 53a-92(a)(2)(A) makes it an offense to "[abduct ] another person and ... (2) ... [to restrain] the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually...." (Emphasis added.) Once the victim had been abducted and restrained with the requisite intent, common sense dictates that the defendant could not have abducted her again unless at some point she had become free of his control. "Because kidnapping involves interfering with the victim's liberty, it continues until that liberty is restored." State v. Gomez, 225 Conn. 347, 351, 622 A.2d 1014 (1993), citing State v. Jefferies, 304 S.C. 141, 145, 403 S.E.2d 169 (1991) and State v. Dove, 52 Wash.App. 81, 88, 757 P.2d 990 (1988). Kidnapping is a continuing crime. State v. Smith, 198 Conn. 147, 155, 502 A.2d 874 (1985).

Because the facts clearly demonstrate that the victim was continually restrained after her abduction and was abducted with only one intent, to violate or abuse her sexually, the defendant committed only one crime of kidnapping. The state and the defendant agree that his conviction and punishment for the second count of kidnapping violated his right against double jeopardy. We concur.

Under the circumstances, the proper remedy to cure the double jeopardy violation is to set aside the defendant's conviction and his sentence for the second count of kidnapping. Contrary to the state's view, the remedy is not to merge the convictions into a single conviction and vacate only the sentence for the second conviction. This case is not analogous to State v. Chicano, 216 Conn. 699, 584 A.2d 425 (1990), cert. [228 Conn. 589] denied, --- U.S. ----, 111 S.Ct. 2898, 115 L.Ed.2d 1062 (1991). In Chicano, where the defendant was convicted of greater and lesser included offenses resulting in a double jeopardy violation, we combined the convictions of the greater and lesser included offenses and vacated only the sentences for the lesser included offenses. We reasoned that if the convictions for the greater offenses of felony murder were later invalidated for any reason that did not affect the convictions of the lesser included offenses of manslaughter in the first degree, the manslaughter convictions could be "resuscitated and the defendant could be punished for those convictions." Id., 216 Conn. at 725, 584 A.2d 425.

Unlike Chicano, where the convictions of the greater and lesser offenses were justified by the facts, in the present case the facts surrounding the commission of the continuing crime of kidnapping supported only a single conviction of kidnapping as that crime is defined by our statutes. In Chicano, the presence of a factual basis for conviction of the lesser included offenses of manslaughter justified the continued vitality of the defendant's convictions of those offenses. In the present case, no other valid conviction can be combined with the remaining conviction of kidnapping so as to be "resuscitated" in the event of a later invalidation of that conviction.

We conclude that where...