State v. Henry, No. 23067.

CourtAppellate Court of Connecticut
Writing for the CourtWest
Citation76 Conn.App. 515,820 A.2d 1076
PartiesSTATE of Connecticut v. Marvel HENRY.
Docket NumberNo. 23067.
Decision Date06 May 2003
820 A.2d 1076
76 Conn.App. 515
STATE of Connecticut
v.
Marvel HENRY.
No. 23067.
Appellate Court of Connecticut.
Argued December 3, 2002.
Decided May 6, 2003.

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COPYRIGHT MATERIAL OMITTED

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FOTI, FLYNN and WEST, Js.

Norman A. Pattis, New Haven, for the appellant (defendant).

Christopher T. Godialis, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and David J. Strollo, senior assistant state's attorney, for the appellee (state).

WEST, J.


This appeal requires us to determine whether a complaining witness' recorded statement against the defendant may be admitted into evidence where the defendant is responsible for the fact that the witness is unavailable to testify. We also must determine whether evidence that the defendant allegedly murdered the complaining witness to ensure that she could not testify was admitted properly to prove consciousness of guilt. We conclude, under the facts of this case, that the recorded statement and the evidence of the defendant's consciousness of guilt were admitted into evidence properly. We also conclude that the trial court properly refused to charge the jury on sexual assault in the third degree and sexual assault in the fourth degree as lesser offenses included within sexual assault in the first degree.

In June, 2001, the jury convicted the defendant, Marvel Henry,1 of kidnapping in the first degree with a firearm in violation of General Statutes § 53a-92a (a), attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a)(2) and 53a-70 (a)(1), sexual assault in the third degree in violation of General Statutes § 53a-72a (a)(1)(A), assault in the second degree in violation of General Statutes § 53a-60 (a)(2), attempt to commit assault in the second degree in violation of General Statutes § 53a-49 (a)(2) and 53a-60 (a)(2) as a lesser offense included within attempt to commit assault in the first degree, carrying a pistol without a permit in violation of General Statutes § 293-5 and failure to appear in the first degree in violation of General Statutes

Page 1079

§ 53a-172.2 The court subsequently found that the defendant had committed a class A and a class B felony with a firearm in violation of General Statutes § 53-202k.3

The defendant, on appeal, claims that the court improperly (1) admitted (a) the victim's recorded statement to the police and (b) consciousness of guilt evidence that he murdered the victim, (2) undermined his constitutional right to a fair trial by charging the jury on consciousness of guilt, and (3) refused to charge the jury on sexual assault in the third degree and sexual assault in the fourth degree as lesser offenses included within sexual assault in the first degree. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim, Thomasa Fragher, deceased, gave the police a recorded statement recounting the events that took place on the evening of August 13, 1997. For a time about one year prior to that evening, the defendant and the victim had had a consensual sexual relationship. At approximately 7:30 p.m. on the date in question, the victim walked past 162 Gilbert Street in New Haven on her way to a store. The defendant was sitting on the porch of 162 Gilbert Street, where Kenneth Pascoe lived in the first floor apartment. When the victim returned, she again walked past 162 Gilbert Street. The victim and the defendant did not speak to one another until the victim reached the street corner. The defendant then called to her and hailed her to return to the porch. The victim returned to speak with the defendant, who requested that the two engage in sex. The victim refused the defendant's request to have sex with him that night.

The defendant became angry, left the porch and grabbed the victim by her hair. The victim protested and attempted to free herself. The defendant pulled the victim into Pascoe's house, telling her that she was going to have sex with him. When they were in the living room, the defendant, still holding the victim's hair, twisted her neck until she fell to the floor.4 The defendant sat on her stomach. The victim struggled to free herself, but the defendant slapped her, punched her, kicked her head and jabbed her head with the point of a pen. The defendant groped the victim's breasts and told her to remove her shirt. When she refused, the defendant used the pen to make a hole in the shirt and stabbed the victim's chest.

When the defendant tried to choke the victim, she cried for help. The defendant then produced a gun and threatened to shoot the victim. The victim's friends had heard her scream and asked Pascoe to investigate. Pascoe opened the door and told the defendant to get off the victim. As the victim was leaving, the defendant kicked her in the back.

While those events were transpiring, Pascoe, Anitra Clark and Larhonda Cash were present in the house. Their testimony corroborated portions of the victim's statement. Clark was in the kitchen eating with Pascoe and Cash when she heard

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a disturbance in the living room. She advised Pascoe to find out what was going on. When the victim left, Clark observed that the victim was crying, that her hair was in disarray and that she had vomited.

According to Pascoe, he, Clark and Cash heard a disturbance in the living room, and he went to investigate. He opened the door and saw the victim lying on the floor. The defendant was standing over her with what appeared to be a semiautomatic weapon with a six inch barrel. Pascoe told the defendant to leave, but the victim left first. The victim was crying, her hair was "rooted up" and she did not look well. The victim vomited on the sidewalk.

When Cash observed the victim, she saw that her Tshirt was torn and that she was attempting to zip her pants. Her hair was in disarray and her face was swollen. Cash left with the victim and was present when she vomited. When the victim was able to catch her breath, she told Cash that the defendant had demanded sex and that when she refused, he kicked her, stood on her stomach, and punched and smacked her. The victim also stated that the defendant had put a gun in her mouth.

Later that evening, the victim reported the assault to the New Haven police. The victim initially was reluctant to report the incident because she was afraid of the defendant. Her sister-in-law, Towanda Minnis, convinced her to call the police. Officer Lynn Meekins responded to the complaint and observed that the victim's face was puffy beneath one eye. The victim told Meekins that the defendant had tried to have sexual contact with her and that he had brandished a weapon. The victim subsequently gave Detective Thomas Trocchio a recorded statement identifying the defendant as the perpetrator and selected his image from a photographic array.

Trocchio's investigation also corroborated portions of the victim's statement. The victim's appearance at the time she reported the incident, two hours after it had occurred, was consistent with the attack she described. She had abrasions and contusions on her face and neck, her hair was in disarray and some of it appeared to be missing. The shirt the victim was wearing had a hole in it, and there were ink marks adjacent to the hole. When he investigated, Trocchio found remnants of vomit on the sidewalk and the victim's hair extensions where she said that she had discarded them because the defendant had pulled them out.

Trocchio talked to Pascoe and took him to the police station to give a statement. Pascoe's friend, David Clarke, a person known to the defendant, was at 162 Gilbert Street when the police arrived. While Clarke was following Pascoe to the police station, the defendant paged him. Clarke called the defendant's cellular phone, and the defendant told him that the police were looking for him. When Clarke asked why, the defendant stated that he had put a gun to the victim's head and "made her suck [his] dick because she had `burnt' [him]."5

The defendant was arrested on August 20, 1997, pursuant to a warrant, when he was found hiding in the bathroom of his wife's home. In an oral statement to the police,6 the defendant admitted that he had been with the victim at Pascoe's apartment on August 13, 1997. Although he denied that he had forced the victim to enter the apartment, he admitted that he had hit her in the face and pulled her hair. He stated that he did so because the victim had given

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him a sexually transmitted disease.7 The defendant was held in lieu of bond for several months.

The defendant made efforts to dissuade the victim from pressing the charges against him. He telephoned Pascoe from jail, where he was detained, and asked him to convince the victim to withdraw her complaint. In June, 1998, the victim told Cash that the defendant had offered to give her money to enable her to leave the state so that she would not be available to testify. The defendant never gave the victim money. According to Cash, the victim had been served with a subpoena to testify at the defendant's trial, and she did not want to be found in contempt of court.

In early July, 1998, the prosecutor spoke to the victim to determine whether she was willing to testify against the defendant. The victim indicated that she preferred not to testify, but if her failing to testify meant that the defendant would go free, she would testify against him.

The charges against the defendant originally were to be tried in August, 1998. On July 25, 1998, however, the victim was found at about 10 p.m. in Keney Park in Hartford with gunshot wounds to her head. She died a short time later. The case was called for trial a second time on June 27, 2000, but the defendant failed to appear. One month later, he was found in Georgia and extradited to Connecticut.

Following a trial held in June, 2001, the jury convicted the defendant of...

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24 practice notes
  • Stage v. Martinez, 95 Conn. App. 162 (CT 5/2/2006), (AC 26647).
    • United States
    • Supreme Court of Connecticut
    • May 2, 2006
    ...As the intermediate appellate court of this state, it is not within our province to overrule our Supreme Court. State v. Henry, 76 Conn. App. 515, 551, 820 A.2d 1076, cert. denied, 264 Conn. 908, 826 A.2d 178 10. The defendant's claim was not preserved at trial for appellate review. 11. The......
  • First Ct. Capital v. Homes of Westport, No. 28991.
    • United States
    • Appellate Court of Connecticut
    • February 24, 2009
    ...an intermediate appellate body, it is not within our province to overrule or modify the precedent of our Supreme Court. State v. Henry, 76 Conn.App. 515, 551, 820 A.2d 1076, cert. denied, 264 Conn. 908, 826 A.2d 178 (2003). Furthermore, even if we assume arguendo that the denial of a motion......
  • People v. Giles, No. S129852.
    • United States
    • United States State Supreme Court (California)
    • March 5, 2007
    ...or testifying at trial. (See, e.g., State v. Valencia (Ct.App.1996) 186 Ariz. 493, 924 P.2d 497, 499-503; State v. Henry (2003) 76 Conn.App. 515, 820 A.2d 1076,1087-1088; Devonshire v. United States (D.C.1997) 691 A.2d 165, 166; State v. Hallum (Iowa 2000) 606 N.W.2d 351, 358; State v. Gett......
  • State v. Thompson, SC 18553
    • United States
    • Supreme Court of Connecticut
    • June 19, 2012
    ...argued that the clear and convincing standard should apply. On May 28, 2008, the court issued its decision. Citing State v. Henry, 76 Conn. App. 515, 820 A.2d 1076, cert. denied, 264 Conn. 908, 826 A.2d 178 (2003), the court concluded that the defendant had forfeited his right of confrontat......
  • Request a trial to view additional results
25 cases
  • Stage v. Martinez, 95 Conn. App. 162 (CT 5/2/2006), (AC 26647).
    • United States
    • Supreme Court of Connecticut
    • May 2, 2006
    ...As the intermediate appellate court of this state, it is not within our province to overrule our Supreme Court. State v. Henry, 76 Conn. App. 515, 551, 820 A.2d 1076, cert. denied, 264 Conn. 908, 826 A.2d 178 10. The defendant's claim was not preserved at trial for appellate review. 11. The......
  • First Ct. Capital v. Homes of Westport, No. 28991.
    • United States
    • Appellate Court of Connecticut
    • February 24, 2009
    ...an intermediate appellate body, it is not within our province to overrule or modify the precedent of our Supreme Court. State v. Henry, 76 Conn.App. 515, 551, 820 A.2d 1076, cert. denied, 264 Conn. 908, 826 A.2d 178 (2003). Furthermore, even if we assume arguendo that the denial of a motion......
  • People v. Giles, No. S129852.
    • United States
    • United States State Supreme Court (California)
    • March 5, 2007
    ...or testifying at trial. (See, e.g., State v. Valencia (Ct.App.1996) 186 Ariz. 493, 924 P.2d 497, 499-503; State v. Henry (2003) 76 Conn.App. 515, 820 A.2d 1076,1087-1088; Devonshire v. United States (D.C.1997) 691 A.2d 165, 166; State v. Hallum (Iowa 2000) 606 N.W.2d 351, 358; State v. Gett......
  • State v. Thompson, SC 18553
    • United States
    • Supreme Court of Connecticut
    • June 19, 2012
    ...argued that the clear and convincing standard should apply. On May 28, 2008, the court issued its decision. Citing State v. Henry, 76 Conn. App. 515, 820 A.2d 1076, cert. denied, 264 Conn. 908, 826 A.2d 178 (2003), the court concluded that the defendant had forfeited his right of confrontat......
  • Request a trial to view additional results

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