State v. Jupin, 9229

Decision Date07 January 1992
Docket NumberNo. 9229,9229
Citation602 A.2d 12,26 Conn.App. 331
CourtConnecticut Court of Appeals
PartiesSTATE of Connecticut v. William A. JUPIN, Jr.

John T. Walkley, Trumbull, for appellant (defendant).

Richard F. Jacobson, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Steven Sedensky, Asst. State's Atty., for appellee (state).

Before NORCOTT, HEIMAN and CRETELLA, JJ.

NORCOTT, Judge.

The defendant appeals from the judgment of conviction, after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a)(3). 1 He claims that the trial court improperly (1) denied his motion for judgment of acquittal because the evidence was insufficient to prove beyond a reasonable doubt that he acted under circumstances evincing extreme indifference to human life, (2) refused to charge the jury on the lesser included offense of assault in the third degree in violation of General Statutes § 53a-61(a)(2), and (3) refused to exclude the victim from the courtroom, thereby denying the defendant his constitutional right to a fair trial. We affirm the judgment.

The jury could reasonably have found the following facts. In September, 1988, the defendant and the victim, Diana Wright, lived in a second floor apartment on Fox Street in Bridgeport. Sharing the apartment were Ronald Donaldson, his girl friend, Cindy Terwilliger, who had known Wright for nine years, and Terwilliger's three year old daughter. A common wall separated the bedroom that Wright and the defendant occupied from that of Donaldson and Terwilliger. Wright and the defendant usually slept until noon or 1 p.m. on Saturdays. By September, 1988, Wright had developed a serious drinking problem for which Terwilliger had encouraged her to seek counseling.

On the evening of September 23, 1988, the defendant and Wright, along with a friend, went to a bar. At about 10:30 or 11 p.m., the defendant brought Wright home, believing she was drunk. He then returned to the bar. At about 1 a.m. on September 24, 1988, Terwilliger saw Wright washing dishes in the apartment. At about 1:30 a.m., while Terwilliger was asleep in her bedroom, an ambulance and a paramedic, Peter Yuro, arrived. Although Yuro spent less than twenty minutes examining Wright, he learned that she was sick and felt pain throughout her body. She told him she had "the blues" and had been drinking earlier that night, but could not remember how much. She also indicated she had emotional problems for which she was taking medication. Yuro noted that Wright became confused during the examination and exhibited some unusual behavior in that she talked to and treated a doll as if it were a child. Yuro found her respiration, blood pressure and pulse to be normal, and did not note any indicia of trauma on her body. He did not recall smelling alcohol on her. Wright spoke to him in a normal manner and gave him both her Social Security and telephone numbers. After the examination, she walked out of the apartment without assistance with Yuro to go by ambulance to Park City Hospital.

Between 2 and 2:30 a.m., the defendant returned to the apartment and knocked on Terwilliger's door, looking for Wright. He told Terwilliger that he and a friend had been at a bar with Wright and he had taken Wright home because she was drunk. The defendant then found a note stating that Wright had gone to the hospital. Shortly thereafter, Wright telephoned the defendant and asked for a ride home. The defendant then went to the hospital to get her. Although Wright had completed various paperwork upon arriving at the hospital, she left with the defendant before seeing a physician. She told the defendant at the hospital that she was all right, and the couple arrived home between 3 and 3:30 a.m. The defendant then locked their liquor on their porch to prevent Wright from drinking any more. Shortly thereafter, an argument ensued between them. Through the wall between the bedrooms, Terwilliger heard the couple arguing about why Wright had gone to the hospital. After knocking on their door and asking them to be quiet, she did not see or hear anything further in the apartment. She left with her daughter and Donaldson later that morning. During the argument, Wright had become abusive and fought with the defendant, scratching his arms and chest. He slapped her on her cheek with an open hand at about 4 a.m., and then they went to bed. Later that morning as Terwilliger was leaving the apartment, she looked through a crack in the door and saw the couple asleep in bed.

At about 11 a.m., the defendant awoke and, while Wright was still in bed, went to a nearby store to buy a TV Guide and a bottle of soda. Upon returning, he looked through the TV Guide and then began doing some household repairs. Twice during the afternoon, he noticed that Wright had urinated in bed. He removed her nightgown and twice applied baby powder to dry her. Later, he heard her breathing heavily and tried to awaken her, but she did not respond. At about 3:30 p.m., he called Park City Hospital and told a nurse he had a female friend whom he had been unable to awaken for the past few hours. The nurse suggested that he call an ambulance. The defendant did so, and at about 4:30 p.m. two paramedics, Kurt Liell and Parker Christopher, arrived.

Liell and Christopher found Wright unconscious in bed and unsuccessfully tried to awaken her. With the defendant present, Liell examined Wright. She did not respond to stimuli. Liell found bruises on her face, around her head and behind one of her ears. The bruise behind the ear could have signified a head injury or a basal skull fracture, a thin crack in the bone next to the ear. Liell saw multiple bruises on her upper body, including her entire chest, and on her stomach and legs. When he examined her pupils, he found the left one to be dilated and unresponsive to light. Upon opening her eyes, Liell noticed they did not move. Her teeth also were clenched, signifying possible head trauma. Liell saw blood on her teeth and lips that appeared to have been wiped away, and detected breathing problems and an abnormally high heart rate. He saw that Wright's body was covered with baby powder, which the defendant told Liell he had used to dry her after she had urinated. The defendant also told the paramedics he had argued with Wright and had slapped her a couple of times.

Wright was then taken to the hospital, where she arrived comatose, essentially the same condition as that in which Liell and Christopher had found her. Tests done in the emergency room showed her blood alcohol level just prior to surgery measured .03, indicating she was not under the influence of intoxicating liquor. 2 A registered nurse in the emergency room, Irene LaConte, saw the bruise behind one of Wright's ears. She attributed it to brain trauma and said such a bruise would not be caused by a slap unless the blow had been very forceful.

A neurosurgeon, Michael Opalak, then examined Wright and performed surgery on her shortly thereafter. He found bruises behind both her ears and determined that she was suffering from an acute subdural hematoma, which is caused by a torn vein or artery in the brain and involves a blood clot in the tissues of the skull that line and cover the brain. He determined that Wright's condition had developed in the preceding seventy-two hours, and that there had been bleeding in her brain for between forty-eight and seventy-two hours prior to surgery. It was unlikely that a person experiencing a subdural hematoma would have been in the same condition Wright was in at 1:30 a.m. Contact with a floor, wall or furnishings could have caused her condition, but it was very unlikely that she caused the acute subdural hematoma by falling down. Opalak did not see anything during surgery indicating that a fall had caused Wright's condition; a fall would not likely have resulted in the rupture of the particular veins that were damaged. Opalak stated that more than a slap was needed to cause Wright's condition, and that a blunt rather than a sharp object was the cause.

Wayne Carver, the chief state medical examiner, reviewed Wright's medical records and found nothing to indicate that a subdural hematoma existed at 1:30 a.m. when Yuro first examined her. Carver determined that Wright's condition could have been caused by a blunt injury to the head, including a fall to the floor in her apartment. He determined that a subdural hematoma could be caused by the amount of force required to fracture the skull, and that a single blow to the head could have caused both the skull fracture and the subdural hematoma. Bruises to the back of the ear commonly signify basal skull fractures, and the accumulation of blood that caused damage in Wright's brain began within the forty-eight hours prior to her surgery. Carver found that the damage to her brain had progressed rapidly, and he characterized the force that caused her condition as a "good brisk deed" that went from side to side in striking her.

After surgery, Wright remained in a coma from which she did not begin to emerge for twelve to eighteen months. She developed hydrocephalus, an excess of fluid that becomes trapped in chambers of the brain, which then enlarge and compress the brain. A shunt was implanted to drain the fluid to relieve the hydrocephalus. She is presently able to open her eyes, look around and answer a few questions, but she is unable to live outside a hospital or nursing home environment.

I

The defendant first challenges the sufficiency of the evidence regarding the charge of assault in the first degree. He claims that the cumulative effect of the direct and circumstantial evidence was insufficient to prove each element of the crime beyond a reasonable doubt. He specifically argues that the state failed to prove that he recklessly caused Wright's injuries. Thus, he asserts that two essential elements of §...

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