State v. Gordon

• Decision Date: 18 August 1981
• Citation: 185 Conn. 402,441 A.2d 119
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Mitchell GORDON.

Page 119

441 A.2d 119

185 Conn. 402

STATE of Connecticut v.Mitchell GORDON.

Supreme Court of Connecticut.

Argued June 9, 1981.

Decided Aug. 18, 1981.

Maxwell Heiman, Bristol, with whom, on the brief, was William J. Tracy, Jr., Bristol, for appellant(defendant).

Carl Schuman, Asst. State's Atty., with whom, on the brief, were Robert Beach, Jr., and Bernard Gaffney, Asst. State's Attys., for appellee(state).

Before BOGDANSKI, C. J., and PETERS, HEALEY, PARSKEY and ARMENTANO, JJ.

BOGDANSKI, Chief Justice.

The defendant was accused of the crime of sexual assault in the first degree in violation of § 53a-70(a)(2)¹ of the General Statutes and of the crime of robbery in the first degree in violation of § 53a-134(a)(3)² of the General Statutes.A jury found him guilty as charged on the first count and guilty on the second count of the lesser included offense of robbery in the third degree in violation of § 53a-136(a)³ of the General Statutes.From the judgment rendered thereon, he has appealed.

The defendant contends that the trial court erred: (1) in ruling that sufficient evidence supported the jury's verdict; (2) in permitting the victim to testify to her prior identification of the defendant and to identify him in court; (3) in refusing to instruct the jury on larceny in the fourth degree as a lesser included offense within the second count; and (4) in giving three particular instructions to the jury.

The following evidence is relevant to our treatment of the issues: Around8 a. m. on the morning of May 20, 1977, in a parking lot near Main Street, Glastonbury, an assailant grabbed the victim from behind and put a knife to her stomach.The victim wore eyeglasses.She tried to break free and caught a quick look at her assailant.At trial she testified that her quick look revealed a five foot four inch tall individual who wore a blue shirt and, over his face, an orange ski mask.While telling her that if she didn't keep quiet he would put a hole in her stomach, he kicked and pushed her towards a shadowy and dark abandoned greenhouse which had no artificial lighting.Along the way, as she struggled to free herself, she asked him if he wanted money or sex or other things.He responded with silence.Subsequently, he removed her glasses and blindfolded her.As she entered the greenhouse cellar she dropped her purse.Despite the blindfold, she managed to see a little bit of what her assailant looked like.At the trial she testified that she had observed that he was a thin white male with brown, wavy hair which extended an inch below his ears, a pointy nose, high cheekbones, broad shoulders, a blue shirt, dungarees and a belt with a heavy buckle.She no longer saw his knife.When he noticed that she could see him, he threatened to hit her unless she covered her eyes.Thereafter she pressed her hand tightly over the blindfold which covered her eyes.She was afraid to look at him again and was unable to see anything more.At times the assailant was angry and abusive, at other times he was polite.He removed her clothing and carefully folded it.After the sexual assault, she pleaded with him to let her alone.She then heard him start to run toward the cellar hatchway.Although the blindfold had slipped, she looked in the opposite direction as he fled.Before he left the cellar, he shouted something at her and said "your purse is in here if you want it when you're done."He then ran outside.The entire incident took eight to nine minutes, six of which were spent in the greenhouse cellar.Sometime later, the purse was found and she discovered that a ten dollar bill was missing.

Within minutes of the attack, she reported the incident to the police, who arrived almost immediately.They found the distraught victim, next door to the greenhouse, at her doctor's home.She described her assailant as a white male of average height with dark brown, wavy hair, wearing a blue shirt and dungarees.At that time, the police could not get any more details of the assailant's appearance from the victim.

The defendant, a sixteen-year-old white male, was seen within several blocks of the incident shortly after the description was broadcast.Two off-duty firemen, who heard the description broadcast, saw the defendant start to run when a police car went by.They chased him into a back yard where he sat against a fence, took out a notebook, and apparently began to write his homework.He cried continuously and pounded his fist on the ground repeatedly.Lieutenant Paul Gibbons arrived within minutes.When Gibbons told him to stand, the defendant rose and said, "I don't know why I touched her."Gibbons patted him down and felt a hard object in his pants pocket.In response to a request to hand it over, the defendant handed Gibbons a jackknife and a ten dollar bill and said he had stolen the money from her.Gibbons then formally arrested the defendant and took him to the victim's doctor's driveway.

Within twenty minutes of the attack, Officer James Thomas asked the victim if she would look at someone who had just been located in the area.From a distance of thirty feet, the victim looked at the defendant who was seated in the back seat of an unmarked police car.She declined to make an identification.Because the victim was upset, the police did not insist that she take a closer look at the defendant.At Thomas' suggestion, she agreed to go to the police station to look at the defendant through one-way glass in order to avoid a face-to-face confrontation.On the way to the station house, Thomas discussed the mechanics of the one-way glass with the victim.At the station, the victim told the police that she had only seen a little of her assailant's face and she repeated her earlier description of the assailant, adding only that he was in his early twenties.Thomas then asked her to look into a room and to identify, if she could, the person in the room.Still crying and emotionally upset, within ninety minutes of the crime, she viewed the defendant being interviewed by Gibbons, a much older person.She noted that the defendant had dark brown, wavy hair which extended an inch below his ears, broad shoulders, and a pointy nose, and that except for his younger appearance his facial features generally resembled her assailant.She also noted that the dungarees and blue shirt looked the same and that the defendant wore a belt with an unusual buckle.She spent three or four minutes making the identification and emerged from the room 80 percent certain of its accuracy.She attributed her uncertainty to the limited view she had gotten of her assailant.Subsequently, she saw the defendant twice, each time for about two minutes during court proceedings approximately one month after the incident.

I

The defendant moved for judgment of acquittal at the close of both the state's case and all the evidence, and also after the jury returned their verdict of guilty.The portions of the motions relevant to this appeal argued (1) that the state failed to prove beyond a reasonable doubt that the defendant was sane at the time of the crime and (2) that the evidence failed to support the jury's conclusion that the defendant committed a robbery.

The defendant asserts that the court erred in denying these motions."We have repeatedly stated the test which this court employs to determine whether the evidence is sufficient to sustain a verdict: ' "(T)he issue is whether the jury could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt ...." 'State v. Gaynor, --- Conn. ---, 438 A.2d 749(42 Conn.L.J., No. 25, p. 25)(1980), quotingState v. Festo, 181 Conn. 254, 259, 435 A.2d 38(41 Conn.L.J., No. 52, pp. 7, 9)(1980);State v. Nemeth, --- Conn. ---, ---, 438 A.2d 120(42 Conn.L.J., No. 23, pp. 3, 5)(1980);State v. Saracino, 178 Conn. 416, 419, 423 A.2d 102(1979);State v. Jackson, 176 Conn. 257, 262, 407 A.2d 948(1978)." In ruling on such a motion, the evidence presented at the trial must be given a construction most favorable to sustaining the jury's verdict."State v. Jackson, supra, 262, 407 A.2d 948, seeState v. Nemeth, supra;State v. Chetcuti, 173 Conn. 165, 172, 377 A.2d 263(1977)." Each essential element of the crime charged must be established by proof beyond a reasonable doubt, ' "and although it is within the province of the jury to draw reasonable, logical inferences from the facts proven, they may not resort to speculation and conjecture." 'State v. Gaynor, supra, --- Conn. at ---, 438 A.2d 749;State v. Festo, supra, 181 Conn. at 259, 435 A.2d 38."State v. Stankowski, --- Conn. ---, ---, 439 A.2d 918(42 Conn.L.J., No. 46, pp. 5, 7)(1981);seeState v. Smith, --- Conn. ---, ---, --- A.2d ----(43 Conn.L.J., No. 4, pp. 1, 4)(1981).

A

The defendant called several lay witnesses who testified to their observation of the defendant prior to and immediately after the incident.Both the defendant and the state called expert witnesses who based their testimony on their examinations, examinations by others and tests performed both before and after the incident.All the expert witnesses agreed that the defendant suffered from a mental disease or defect.Witnesses called by the defendant testified that the defendant lacked a substantial capacity to conform his conduct to the requirements of the law.On cross-examination, Dr. John Haksteen, one of the experts called by the defendant, admitted that he had read a report of psychological tests given to the defendant before the assault and that these tests had indicated that the defendant was a bright, normal sixteen-year-old who had an unhappy home life, but that the report had not recommended psychiatric treatment.Haksteen also admitted that the American Psychiatric Association had not recognized the type of disorder...