State v. Jones, 13523

• Citation: 575 A.2d 216,215 Conn. 173
• Decision Date: 29 May 1990
• Docket Number: No. 13523,13523
• Court: Supreme Court of Connecticut
• Parties: STATE of Connecticut v. Leslie JONES.

Page 216

575 A.2d 216

215 Conn. 173

STATE of Connecticut v. Leslie JONES.

No. 13523.

Supreme Court of Connecticut.

Argued Feb. 27, 1990.

Decided May 29, 1990.

Susan M. Hankins, Asst. Public Defender, for appellant (defendant).

James A. Killen, Asst. State's Atty., with whom, on the brief, was Michael Dearington, State's Atty., for appellee (state).

Before PETERS, C.J., and CALLAHAN, GLASS, COVELLO and HULL, JJ.

GLASS, Associate Justice.

The defendant, Leslie Jones, was found guilty by a jury of kidnapping in the first degree, in violation of General Statutes § 53a-92(a)(2)(A). ¹ On August 26, 1988, the court sentenced him to a term of twenty-five years imprisonment. The defendant now claims on appeal: (1) that § 53a-92(a)(2)(A), prohibiting kidnapping in the first degree is, under the circumstances of this case, unconstitutionally vague, and thus violates his right to due process; (2) that the evidence submitted in this case was insufficient to sustain a conviction for the crime of kidnapping in the first degree; (3) that the state's use of the defendant's post-Miranda refusal to sign his transcribed statement violated his constitutional rights; and (4) that the trial court erred in admitting a portion of his statement that was irrelevant and unduly prejudicial. We find no error.

The jury could reasonably have found the following facts. At approximately 10 a.m. on July 19, 1987, the victim was jogging through Edgewood Park in New Haven. In particular, she was running down the center of a two car-widths wide paved road that runs through the park. While she was running on a portion of the road that passed through a heavily wooded area, she noticed the defendant walking toward her on the road. As they approached each other, the victim adjusted her position to pass the defendant on the left, attempting to leave "plenty of space" between the two of them as she passed.

As the defendant and the victim were about to pass each other, however, the defendant suddenly blocked the victim's path. He grabbed her by the shoulders and said: "Come here, I want to show you something." The victim started screaming, hoping that someone in the park would hear her, but no one was in the immediate area. The defendant then began dragging the victim off to the right side of the road. Once they were off the road, the defendant threw the victim down to the ground in a grassy area. The defendant pinned her down with one hand, and attempted to stuff a white cloth into her mouth with the other hand. His hand was locked around her jaw in such a manner that she "thought he was trying to rip [her] jaw off," and she "felt as if [she] was being smothered because [the cloth] was being pressed right on [her] nose and mouth." The victim began twisting her head back and forth "trying to struggle out of his grasp," and, at some point, the defendant raised his hand as if he were about to strike her. As the defendant was leaning over her body, however, the victim, who was on her back, coiled her legs up to her chest and kicked him in his stomach. As a result, the defendant lost hold of her. The victim was able to roll out from under the defendant and she began to run away. After running approximately thirty feet, the victim turned and saw that the defendant was not giving chase. She ran out to Edgewood Avenue, where she reported the incident to Sergeant Edward Saccavino of the New Haven police department, who happened to be parked nearby.

Saccavino immediately broadcast the victim's description of her assailant over the radio. Detective Ralph Dinello, who was patrolling the Edgewood Avenue area, heard the broadcast, and a few minutes later spotted the defendant, who matched the description, walking in the vicinity of the park. Dinello approached the defendant and asked him where he lived and from where he was coming. The defendant replied that he lived at 249 Whalley Avenue, and was coming from a friend's house. Dinello was then informed by another officer, who had arrived on the scene, that there was no residence at 249 Whalley Avenue. The defendant then asked why he was being stopped, and Dinello told him that there was an incident in Edgewood Park and that he fit the description of the assailant. The defendant stated that he "was not at Edgewood Park or anywhere near Edgewood Avenue Park" and that he was coming from Whalley Avenue. By this time, Saccavino had arrived with the victim, who stated that she was at least 60 percent sure that the defendant was her assailant.

The defendant was then placed under arrest, given his Miranda ² warnings and taken to the New Haven police station. At the station, the defendant was again given his Miranda warnings prior to being interrogated by Dinello. In response to Dinello's questions, the defendant again stated that he knew absolutely nothing about the incident and that he was not in the park. When Dinello stopped interviewing the defendant in order to speak with the victim, Sergeant Melvin Wearing asked Dinello if he could speak with the defendant for a few minutes. After speaking with Wearing, the defendant agreed to give a statement to Dinello concerning the incident. In his statement, which was tape-recorded, the defendant admitted that he had encountered the victim in Edgewood Park. He claimed, however, that he had merely "staggered" into the victim and that he was attempting to say "excuse me" when she began screaming. He denied having grabbed the victim at all, and claimed that he first denied being anywhere near Edgewood Park because he "was afraid of what that lady may [have] thought."

As a result of the attack, the victim immediately noticed a number of scrapes and bruises. The morning after, she felt pain in her jaw, neck and back. In addition, she discovered bruises on her face, shoulders and chest. The victim then went to be examined by a physician's assistant, Kelly Ann Martens, who testified ³ at trial regarding numerous injuries that the victim had sustained, including an abrasion on her elbow, muscle tenderness in many parts of her body, and an abnormal "click" in her jaw. Martens then referred the victim to a physician concerning her particular injuries, and provided the victim with a cervical collar to wear after leaving the examination.

I

The defendant first claims that General Statutes § 53a-92(a)(2)(A) is, under the circumstances of this case, unconstitutionally vague. We disagree. In particular, § 53a-92(a)(2)(A) provides: "A person is guilty of kidnapping in the first degree when he abducts another person and when ... he restrains the person abducted with intent to ... inflict physical injury upon him...." General Statutes § 53a-91(1) ⁴ defines "restrain" in part as follows: " 'Restrain' means to restrict a person's movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved...."

In charging the jury, the trial court limited its definition of "restrain" to moving "from one place to another." The defendant now claims that, in using the phrase "from one place to another," the legislature "has provided an impermissibly vague standard which allows an offense involving any movement at all to be prosecuted as a kidnapping and elevated to the level of [a class] A felony." The defendant asserts further that the lack of precision in this phrase allows a "gross distortion of lesser crimes" into much more serious crimes "by excess of prosecutorial zeal," thus permitting the "absurd and unconscionable" result reached in this case.

First, before reaching the merits of the defendant's claim, we must consider the threshold question of reviewability. The state maintains that the defendant's vagueness claim is not reviewable because it was not distinctly raised at trial. We conclude that, despite this procedural default, the defendant's claim of unconstitutional vagueness falls within the parameters of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973), and therefore warrants appellate scrutiny. See State v. Schriver, 207 Conn. 456, 459, 542 A.2d 686 (1988).

Turning to the merits of the defendant's vagueness challenge: "The constitutional injunction that is commonly referred to as the void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute or regulation and the guarantee against standardless law enforcement. Smith v. Goguen, 415 U.S. 566, 572-73, 94 S.Ct. 1242, 1246-47, 39 L.Ed.2d 605 (1974); Mitchell v. King, 169 Conn. 140, 142-43, 363 A.2d 68 (1975)." State v. Schriver, supra, at 459-60, 542 A.2d 686. "In order to surmount a vagueness challenge, 'a statute [must] afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited.' McKinney v. Coventry, 176 Conn. 613, 618, 410 A.2d 453 (1979). The constitutional requirement of definiteness applies more strictly to penal laws than to statutes that exact civil penalties. Winters v. New York, 333 U.S. 507, 515, 68 S.Ct. 665, 670, 92 L.Ed. 840 (1948)." State v. Schriver, supra, 207 Conn. at 460, 542 A.2d 686.

Furthermore, it is well established that, as a general rule, "the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute's applicability to the particular facts at issue. United States v. Powell, 423 U.S. 87, 92, 96 S.Ct. 316, 320, 46 L.Ed.2d 228 [1975]; United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 [1975]; United States v. National Dairy Products Corporation, 372 U.S. 29, 32-33, 83 S.Ct. 594, 597-98, 9 L.Ed.2d 561 [1963]; United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 [1960]." State v. Pickering, 180 Conn. 54, 57, 428 A.2d 322 (1980). "For st...