State v. Jones, No. 28642.

• Decision Date: 14 July 2009
• Docket Number: No. 28642.
• Citation: 115 Conn.App. 581,974 A.2d 72
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Wayne JONES.<SMALL><SUP>1</SUP></SMALL&gt

974 A.2d 72

115 Conn.App. 581

STATE of Connecticut v. Wayne JONES.¹

No. 28642.

Appellate Court of Connecticut.

Argued January 21, 2009.

Decided July 14, 2009.

Stephanie L. Evans, special public defender, for the appellant (defendant).

Frederick W. Fawcett, supervisory assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, Cornelius P. Kelly, senior assistant state's attorney, and Christopher Hayes, law student intern, for the appellee (state).

BISHOP, GRUENDEL and BORDEN, Js.

BORDEN, J.

The defendant, Wayne Jones, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a)(1),² burglary in the first degree in violation of General Statutes (Rev. to 2005) § 53a-101 (a)(2)³ and kidnapping in the first degree in violation of General Statutes § 53a-92 (a)(2)(B).⁴ He claims that (1) the trial court improperly denied his motion to suppress evidence obtained by a search warrant because the warrant was based solely on suspicion and conjecture rather than probable cause, (2) the prosecutor committed impropriety during closing arguments to the jury and (3) the defendant was denied his right under the confrontation clause of the federal and state constitutions to cross-examine the victim effectively. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 24, 2005, the victim, B, was living in Stratford with her fiance, H. B and H lived in the second floor apartment of a two-family house. H was employed at a local methadone maintenance clinic as a counselor and generally worked from 6 a.m. to 2 p.m. On the morning of August 24, 2005, H left for work about fifteen to twenty minutes before 6 a.m., and when he departed, he locked the back door.

After H left their apartment, B, who had fallen back to sleep, woke up to find the defendant standing over her. Thinking it was her fiance returning from work, however, B reached up and touched the defendant's arm and asked if something was wrong. The defendant told B to "shut up," pushed her down onto the bed and put his hand over her mouth, at which point B realized the man was not her fiance. B kicked at the defendant, who then put his arm around her neck. As B tried to break free, the defendant tightened his grip around her neck. At this point, B became aware that the defendant was bare-chested and had a towel over his head. Realizing that the more she fought with the defendant, the tighter his grip became around her neck, B stopped fighting. The defendant then told B to get on the bed, as both B and the defendant had fallen to the floor during the struggle. B got on the bed face down while the defendant stayed behind her with his arm around her neck.

The defendant then began questioning B. He asked with whom B lived, and she responded, H. The defendant told B that H owed him money for drugs, which he had sold to H several months earlier, and that he was there to "rough up" B so that H would pay him. Although B did not believe the defendant, she told him that she would make sure that H paid him. The defendant told B that H had left the door open and that the defendant had been checking it. He also told B that he was not going to hurt her because now that he had seen her, "he seen what he liked." The defendant then asked B if she knew the man who lived downstairs, and she said that she did not. The defendant repeatedly asked her this question, and she continued to answer that she did not know the man living downstairs. The defendant told B that the man downstairs saw the defendant drive by and was outside smoking a cigarette and washing his car. He said that the man looked smart and could give the police a description of him.

The defendant then asked B if she loved H, and she replied that she did. The defendant also told B that his gang could get to H anytime it wanted to and that he could kill her but would not do so if B gave him "some." B understood that the defendant meant having sex with him. The defendant had his weight at the back of B's neck and his elbow pressed into her jaw. She believed that he could break her neck at any time, so she did not resist him. The defendant asked if B would call the police, and she assured him that she would not.

B then felt the defendant penetrate her vagina with his fingers. She then felt the defendant wipe her vagina with a tissue. She heard paper ripping and thought that the defendant was getting a condom. She felt the defendant penetrate her vagina again. Throughout the assault, B never had an opportunity to see the defendant's face.

The defendant then put B in the bedroom closet and told her to count to 100. B kept her eyes closed because the defendant was concerned about being recognized, and she did not want him to think she could identify him. As B was counting, she heard what she described as bare feet on the kitchen floor and heard the back door open and close. Once she heard the door shut, B ran from the closet to the back door. She was unable to see out the back door window because it was covered in plastic. B then hurried into the bathroom, which was located adjacent to the back door, and looked out the bathroom window. B heard someone running down the exterior wooden backstairs and then heard the door of the first floor apartment close. She did not observe any cars leaving the area or see anyone running away from the residence. B then called H on her cellular telephone. She also noticed that one of her fingernails was broken and thought that she may have scratched her attacker because it was not broken prior to the incident.

B was hysterical and crying when she called H. H left work and drove home. Once home, B told H that she had been sexually assaulted in the bedroom, but she could not identify her attacker. H went downstairs to talk to the residents of the first floor apartment, which included Anika Allen, her daughter and the defendant. H spoke with the defendant, who was in his underwear and not wearing a shirt or shoes. H told the defendant that his fiance had just been raped and asked if the defendant had heard anything. The defendant replied that he had not heard anything and knew nothing.

As H was leaving the first floor apartment, Stratford police Officer Curtis Eller arrived. Eller spoke to H and then went upstairs to speak to B. B told Eller that immediately after the assault she heard footsteps going down the backstairs and then heard the first floor apartment door close. Eller then spoke with the defendant outside his apartment. The defendant was not wearing a shirt or shoes and told Eller that he did not hear anything. After this conversation, Eller went to St. Vincent's Medical Center in Bridgeport (hospital), where B had been transported, and spoke to her again. B gave Eller a description of her attacker. She described her attacker as approximately five feet, nine inches tall with a muscular build, a brown complexion and hair on his chin, and as having breath that smelled of cigarette smoke. Eller then returned to the scene.

When Detective Richard Yeomans of the Stratford police department arrived at the scene, he first spoke with H and then went to the first floor apartment to speak with the defendant. Yeomans noticed that the defendant was wearing white boxer shorts but was not wearing a shirt or shoes. Yeomans also noticed that the defendant had a fresh scratch on his left elbow. Yeomans then spoke with Eller, who relayed his conversation with B to Yeomans. Yeomans testified that the defendant fit B's description, so he went back to the defendant's apartment and asked the defendant if he smoked, and the defendant replied that he did. The defendant then became upset and accused Yeomans of calling him a suspect. Yeomans explained that he was a potential witness. The defendant responded: "I may be from the hood, but I'm not dumb, I'm smart." The defendant then told Yeomans that he did not attack B.

While at the hospital, an emergency room physician, Frank Illuzzi, treated B. Illuzzi performed a genital examination and found a one inch tear between B's external and internal labia, which, in his opinion, indicated forced sexual intercourse. A sexual assault evidence collection kit (kit) was administered, which included, among other things, a vaginal smear and swab and a blood sample. The kit was submitted to the state forensic science laboratory (laboratory) for analysis. The results of the kit were examined by a criminalist, Karen Lamy, in the forensic biology section of the laboratory. Lamy found spermatozoa⁵ on the vaginal swab during her examination.

The results of the vaginal swab analysis were given to Yeomans, who, upon receipt of this information, secured a search and seizure warrant to take a DNA sample of the defendant via an oral swab.⁶ Pursuant to the warrant, on October 29, 2005, Yeomans obtained an oral swab containing a DNA sample from the defendant at the Stratford police station, which was sent to the laboratory for testing. The defendant again told Yeomans that he did not sexually assault B and never had intercourse with her. The defendant left the police station, however, before Yeomans could give him a copy of the search warrant.

Yeomans was able to give the defendant a copy of the search warrant on November 11, 2005. The defendant again told Yeomans that he did not sexually assault B, but that his cousin, Dwayne White, had assaulted B. Upon learning of this information and further investigating the matter, Yeomans applied for and received a search and seizure warrant to obtain a DNA sample of White via an oral swab. Thereafter, a DNA sample from White was obtained and submitted to the laboratory for testing.

Christine Roy, a forensic science examiner at the laboratory, performed the analysis of the vaginal swab and the DNA samples taken from B, H, the defendant and White. See...