State v. Hinds

• Decision Date: 21 December 2004
• Docket Number: No. 24687.,24687.
• Citation: 861 A.2d 1219,86 Conn.App. 557
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut. v. Walter W. HINDS, Sr.

861 A.2d 1219

86 Conn.App. 557

STATE of Connecticut. v. Walter W. HINDS, Sr.

No. 24687.

Appellate Court of Connecticut.

Argued September 24, 2004.

Decided December 21, 2004.

Alice Osedach, assistant public defender, for the appellant (defendant).

Nancy L. Chupak, assistant state's attorney, with whom, on the brief, was Mary M. Galvin, state's attorney, for the appellee (state).

WEST, McLACHLAN and DUPONT, Js.

McLACHLAN, J.

The defendant, Walter W. Hinds, Sr., appeals from the judgment of conviction, rendered after a jury trial, of kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A) and sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1). On appeal, he claims that the court improperly (1) instructed the jury on consciousness of guilt, (2) failed to supplement its answer to a question posed by the jury during deliberations before the jury returned a verdict, (3) admitted into evidence a photograph of the defendant that was both irrelevant and prejudicial and (4) refused to instruct the jury using the defendant's requested language with regard to the dangers of eyewitness identification. We affirm the judgment of the trial court.

On August 28, 2000, sixteen year old high school student K¹ was working as a cashier at the Super Stop & Shop supermarket in Milford. After finishing work at approximately 9 p.m., K left the store and started on foot to a friend's apartment that was approximately five minutes away. The route K followed required her to walk past buildings adjacent to Super Stop & Shop, to cross Seeman's Lane and to cut through the property of In-Line Plastics Tool Company (In-Line Plastics). As she crossed Seeman's Lane, K noticed a pickup truck exit the driveway of In-Line Plastics, reenter the parking area and come to a stop. As she walked past the truck, she turned around and observed that the driver had exited the vehicle and was walking behind her. She continued walking and, upon turning around again, she saw that the driver was right behind her and wearing only underwear and a sleeveless shirt. Although it was nighttime, the area was lit by lights on the surrounding buildings, enabling her to see the driver's face.

At that point, K started to run. The defendant ran after K, grabbed her and put one of his hands around her waist and his other hand over her mouth. He instructed her not to scream or he would kill her. The defendant then threw K to the pavement and dragged her by the legs into the bushes behind the In-Line Plastics building. The defendant sat on her chest with his feet on the outside of her arms and instructed K to open her mouth. He inserted his penis into her mouth and forced her to perform fellatio on him, ejaculating into her mouth. The defendant then patted her on the cheek and told her she could leave. Too afraid to move, K remained where she was and, as the defendant walked back toward his truck, pleaded with him not to kill her, telling him that she would not tell anybody what had happened. The defendant turned around and looked at K, enabling her to see his face again. He then entered his truck and drove away. After the defendant left, K ran to her friend's apartment and told the friend that she had been sexually assaulted. K went to the kitchen sink, vomited and rinsed her mouth out. She then telephoned her aunt who contacted the police.

Officer Jeffrey Nielson of the Milford police department responded and met with K and her aunt. He obtained from K a basic description of the defendant and his vehicle and the location of the attack. He took K to the area behind the In-Line Plastics building, so she could identify the exact location of the attack. Nielson testified that the lighting in the area was good enough to see a person's face. Detective Nicholas Ricci met Nielson and K at the scene to begin an investigation. Ricci was unable to locate anyone in nearby homes or businesses who had heard or seen anything unusual that night. Ricci also was unable to find any physical evidence of the assault at the scene. Nielson transported K to the police station where she gave a formal written statement.

K described her attacker as a white male in his forties with a mustache, five feet, six inches to five feet, nine inches tall, of medium build and having strong body odor. She further described his hair color as gray and his truck as a full-size, blue pickup truck that was "not too new." Upon further questioning, K explained that her attacker's hair was a mixture of gray and dark hair and that the color of his truck was closer to green-blue. K did not mention that her attacker had any identifying tattoos, piercings or birthmarks.

K was taken to Milford Hospital where her pants and shirt were seized by the police for testing. There were visible grass stains on both the knees and the seat of the pants. An examination by emergency room personnel revealed several bruises and scratches on K's right arm and hand, a red thumb print impression on her left cheek and a scratch on her lower right cheek. A rape kit also was administered, which included taking swabs of her mouth. Upon testing, these swabs failed to produce any evidence of semen. Hair found on K's clothing was tested and found not to be hers. Subsequent DNA testing revealed that the hair did not match that of the defendant.

K then returned to the Milford police department to assist in creating a computerized composite of her attacker. This composite subsequently was circulated to patrol officers in the department. Two days later, Detective Douglas Youd was notified that a person matching the composite and driving a pickup truck was seen in the parking lot of Waldbaum's supermarket in the Devon section of Milford. Upon responding, Youd observed a man fitting the description of the composite sitting in a pickup truck. Youd surveilled this individual and noticed that the man remained in the Waldbaum's parking lot for one-half hour without exiting his vehicle. The driver then left the parking lot and was observed driving to several other all-night supermarkets and convenience stores.

At approximately midnight on September 1, 2000, four days after the assault, Officer Henry Chacon executed a traffic stop of the defendant's truck.² From the individual's driver's license, Chacon identified the occupant as the defendant. Noticing that the driver's license listed a Maine address, Chacon asked the defendant where he was staying in the area. The defendant responded that he was staying at the Red Roof Inn in Milford while he performed construction work in the area. After issuing the defendant a warning for the traffic infraction, Chacon let the defendant go. Later that day, another Milford police officer visited the Red Roof Inn to confirm the defendant's story, but he was informed that no one bearing the defendant's name was registered at the Red Roof Inn or had been registered in the past six months. Staff at the Red Roof Inn did not recognize the person depicted in the composite.

The defendant remained under surveillance by the Milford police for the rest of the day. In the late afternoon, Detective Philip Maloney followed the defendant into the Waldbaum's parking lot in Milford. Maloney observed the defendant drive around the lot several times before parking. The defendant remained in his vehicle for approximately forty-five minutes during which time he paid "particular attention to females in the lot," including watching them walk to and from the store and load groceries into their cars.

Also on September 1, 2000, Ricci showed K a photographic array consisting of twelve black and white photographs of male subjects. K immediately pointed to the defendant's photograph and stated that she was sure that he was her attacker. K then signed the photographic array. An arrest warrant was issued for the defendant and, later on that same evening, two police officers stopped the defendant's truck and placed him on the ground to be handcuffed. As they were patting down the defendant for weapons, they noticed that his pants were undone and his genitals were exposed. After being advised of his Miranda rights, the defendant indicated his willingness to be interviewed. The two officers asked the defendant how long he had been in the area and where he was staying. The defendant responded that he had been in the area for about a week and living out of his truck. After being transported to the police station, the detectives asked the defendant his height, weight and age. The defendant indicated he was five feet, seven inches tall, 190 pounds and forty-six years old. The detectives also photographed the defendant at the station. That photograph shows the defendant's hair to be a mixture of brown and gray, with similar coloring in his mustache and sideburns. The detectives also videotaped the defendant's truck, which was blue-green in color.

Following a trial, the jury returned guilty verdicts as to both charges. The defendant was sentenced to twenty-five years imprisonment on the kidnapping charge and twenty years imprisonment on the sexual assault charge, to run consecutively, for a total effective sentence of forty-five years. This appeal followed.

I

The defendant first claims that the court improperly instructed the jury regarding consciousness of guilt. Specifically, the defendant argues that (1) there was an insufficient evidentiary basis for such an instruction and (2) the instruction was legally inaccurate.³ We agree that there lacked an adequate basis for the court's instruction but conclude that any error was harmless.

As a basis for its requested consciousness of guilt instruction, the state referenced two statements by the defendant that it contends were later proven false. The first of these statements arose in a conversation the defendant had with Chacon during the August 31, 2000 traffic stop. After stopping the defendant's vehicle and observing that he maintained...