State v. Higgins

• Decision Date: 07 January 2003
• Docket Number: No. 21913.,21913.
• Citation: 74 Conn.App. 473,811 A.2d 765
• Parties: STATE of Connecticut v. Albert HIGGINS.
• Court: Connecticut Court of Appeals

811 A.2d 765

74 Conn.App. 473

STATE of Connecticut v. Albert HIGGINS.

No. 21913.

Appellate Court of Connecticut.

Argued September 20, 2002.

Decided January 7, 2003.

COPYRIGHT MATERIAL OMITTED

SCHALLER, FLYNN and WEST, Js.

Salvatore Bonanno, with whom were Michael A. Georgetti and, on the brief, Janis C. Jerman, for the appellant (defendant).

John A. East III, senior assistant state's attorney, with whom, on the brief, were John M. Bailey, former chief state's attorney, Kimberley N. Perrelli, senior assistant state's attorney, and Joy K. Fausey, former deputy assistant state's attorney, for the appellee (state).

FLYNN, J.

The principal issue to be decided in this appeal is whether, in light of the defendant's acquittal of the crimes of sexual assault in the first degree and risk of injury to a child, the jury was foreclosed from using evidence from the state's case-in-chief that the defendant had sexually molested the victim in considering his guilt for the crime of tampering with a witness. We conclude that it was not foreclosed from considering the evidence and that the evidence of molestation was sufficient to permit the jury to infer that the defendant was telling the victim to testify falsely when he told her to tell the police that nothing ever happened between them.

The defendant, Albert Higgins, appeals from the judgment of conviction, rendered after a jury trial, of tampering with a witness on March 23, 1999, in violation of General Statutes § 53a-151. On appeal, the defendant claims that the trial court improperly denied his motion for a judgment of acquittal notwithstanding the verdict and his motion for a new trial. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our determination of this appeal. The defendant was convicted on one count of a six count information. His only conviction arose from the sixth count, charging him with tampering with a witness on March 23, 1999, in violation of § 53a-151. The remaining counts, of which he was acquitted, were as follows. Counts one and two charged sexual assault in the first degree in violation of General Statutes § 53a-70 (a)(2); counts three and four charged risk of injury to, or impairing the morals of, a child in violation of General Statutes § 53-21(2); count five charged tampering with a witness on or about March, 1999, in violation of General Statutes § 53a-151.¹ The defendant elected to be tried by a jury, and, at the close of the state's case, on February 2, 2001, he moved for a judgment of acquittal, pursuant to Practice Book § 42-40 et seq., claiming that the state had not presented sufficient evidence to support a guilty verdict. The court delayed ruling on the motion until after the close of all the evidence, stating that it was doing so without prejudice to the defendant. On February 9, 2001, after the close of evidence, the court denied the motion.²

The jury found the defendant not guilty on counts one through five and convicted him on count six, tampering with a witness on March 23, 1999. Four days later, on February 13, 2001, the defendant moved for a judgment of acquittal notwithstanding the verdict and for a new trial. On May 4, 2001, the court denied these motions and sentenced the defendant to five years incarceration, execution suspended after one year, and four years probation.

Thereafter, the defendant filed this appeal, claiming that the court improperly denied his motions for a judgment of acquittal notwithstanding the verdict and for a new trial because (1) the evidence was insufficient to support the jury's guilty verdict, (2) the guilty verdict was inconsistent with the not guilty verdict on the other counts, and (3) § 53a-151 is so vague and indefinite as to violate the due process clause of article first, § 8, of the constitution of Connecticut and the fourteenth amendment to the constitution of the United States. We affirm the judgment of the trial court.

The following evidence was introduced during the state's case-in-chief. The victim testified that the defendant began sexually abusing her when she was ten years old and did so for two years. The victim testified that the first time the defendant molested her, he made her rub his penis, and he inserted his penis into her vagina. She testified that this hurt and that the defendant stopped because she started to cry. Several more incidents occurred where the defendant continued sexually molesting the victim in this same manner. After the victim informed her mother of the abuse and they notified the police, the defendant spoke to the victim about the abuse. He asked her if she had talked to the police and told her that "when [she does] talk to the police, just tell them nothing ever happened." The mother of the victim also testified that the defendant telephoned the victim even after they reported the alleged abuse to the police.

Detective Cindy Lloyd testified that she spoke with the defendant on March 10, 1999, notified him of the allegations against him and told him that it would not be a good idea for him to speak with the alleged victim. After learning that the defendant went to the victim's school to speak with her, Lloyd, again, on March 23, 1999, spoke with him and told him not to have any contact with the victim.

The victim testified that the defendant came to her school, asked her why her mother was behaving so strangely, asked her if she had talked to the police and told her to tell them that nothing happened. She also gave a statement to the police concerning the defendant's telephone calls. When asked by the prosecutor if she recalled any specific dates that the defendant had telephoned her and told her to tell the police that nothing happened, the victim had no specific recall. After refreshing her memory with the police report dated March 25, 1999, concerning the defendant's contact with her, the victim testified that the defendant had telephoned her on March 23, 1999.

I

The defendant first claims that the court improperly denied his motions for a judgment of acquittal notwithstanding the verdict and for a new trial because the evidence was insufficient to support the jury's guilty verdict on the charge of tampering with a witness on March 23, 1999.³ The defendant argues that the court must look only to the state's case-in-chief when determining the sufficiency of the evidence because the trial court delayed its ruling, without prejudice, on his motion for a judgment of acquittal, which he made at the close of the state's case.⁴ To look beyond the state's case-in-chief, the defendant argues, would be prejudicial. We agree. The state, however, argues that we must adhere to the waiver rule and review the evidence in toto, including the evidence introduced by the defendant after the close of the state's case. Because of the delayed ruling "without prejudice" to the defendant on the motion for a judgment of acquittal, we first analyze whether the waiver rule is applicable to this case and conclude that it is not.⁵

A

Our rules of practice concerning the submission of a motion for a judgment of acquittal are as follows. Practice Book § 42-40 provides in relevant part: "After the close of the prosecution's case-in-chief or at the close of all the evidence, upon motion of the defendant or upon its own motion, the judicial authority shall order the entry of a judgment of acquittal as to any principal offense charged and as to any lesser included offense for which the evidence would not reasonably permit a finding of guilty."

Practice Book § 42-41 provides: "If the motion is made after the close of the prosecution's case in chief, the judicial authority shall either grant or deny the motion before calling upon the defendant to present defendant's case in chief. If the motion is not granted, the defendant may offer evidence without having reserved the right to do so." (Emphasis added.)

Practice Book § 42-42 provides: "If the motion is made at the close of all the evidence in a jury case, the judicial authority may reserve decision on the motion, submit the case to the jury, and decide the motion either before the jury return a verdict or after they return a verdict of guilty or after they are discharged without having returned a verdict."

Section 42-41 of the rules of practice specifically directs the court either to grant or to deny a motion for a judgment of acquittal that is submitted at the close of the state's case-in-chief. Although § 42-42 allows the court the discretion to delay ruling on a motion that is submitted at the close of all evidence, until after the jury renders its verdict, no such discretion is authorized by § 42-41.

Under our current law, if the court denies a motion for a judgment of acquittal at the close of the state's case-in-chief, the defendant, should he or she decide to put forth evidence, proceeds at his or her own risk that evidence produced in the defense case may be used to remedy deficiencies in the state's case-in-chief, resulting in a conviction that otherwise would not have been possible. See State v. Rutan, 194 Conn. 438, 440-41, 479 A.2d 1209 (1984). This principle is known as the waiver rule. See id. In Rutan, our Supreme Court discussed the waiver rule and its implications for a criminal defendant. See id., at 440-44, 479 A.2d 1209. The court explained that "[t]he waiver rule ... forces the defendant to choose between waiving the right to a defense and waiving the right to put the state to its proof." Id., at 440-41, 479 A.2d 1209.

The defendant's motion for a judgment of acquittal was not acted on at the end of the state's case, as our rules of practice require. Therefore, because the court delayed ruling on the motion for a judgment of acquittal without prejudice, we conclude, as did the trial court,⁶ that to avoid prejudicing the defendant, only the evidence that was presented by the state in its case-inchief is material to consideration of the...