State v. Kelly
| Decision Date | 08 May 2001 |
| Docket Number | No. SC,SC |
| Citation | 770 A.2d 908,256 Conn. 23 |
| Court | Connecticut Supreme Court |
| Parties | (Conn. 2001) STATE OF CONNECTICUT v. ALEX KELLY 16020 |
A jury found the defendant, Alex Kelly, guilty of sexual assault in the first degree in violation of General Statutes (Rev. to 1985) § 53a-70 (a).2 The trial court rendered judgment in accordance with the jury verdict and sentenced the defendant to twenty years imprisonment, execution suspended after sixteen years, and ten years probation.3 The defendant appealed, raising multiple claims of alleged impropriety by the trial court. We transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
The jury reasonably could have found the following facts. After attending a high school basketball game, on the evening of February 10, 1986, the victim, a sixteen year old high school junior,4 and several other high school students visited together at a friend's house in Darien. As the victim's curfew approached, she asked several of her friends for a ride home; all of them declined. The defendant, who had arrived shortly before the victim began seeking a ride, offered to drive her home. Although she declined the defendant's offer initially because she was unacquainted with him, the victim eventually accepted his offer after her friend had pointed out that he lived near her home. At the time, the defendant was driving his girlfriend's Jeep Wagoneer.
At a stop sign approximately one mile from the victim's home, the defendant put the vehicle in park, "came over on top of [her]" and attempted to kiss her. The victim told the defendant to stop and pushed him away. The defendant resumed driving and then asked the victim if she wanted to smoke marijuana with him. She declined. The victim pointed out her house, but the defendant continued driving. He turned down a street past the victim's house and parked the vehicle at the end of a cul-de-sac.
The defendant again attempted to kiss the victim. When she pushed him away, he grabbed her throat and began to choke her. The defendant then told the victim that she was going to make love to him or he was going to kill her. He straddled her, keeping his left hand on her throat, and ordered her to get to the back of the car. He pushed her through the middle of the front seats into the rear and continued pushing her back until her head was against the rear door of the Jeep. The defendant pulled down the victim's jeans and ordered her to remove her shirt and sweater, which she did. The defendant again put one hand on the victim's throat and pushed his fingers into her vagina. He then forced her legs apart, choking her harder when she tried to resist. The defendant penetrated the victim with his penis with such force that her head was banging against the rear door. When the attack was over, the defendant told the victim to get dressed. As she rolled over, she saw blood on her legs and on the carpet beneath her. The defendant threatened the victim that if she told anyone what had happened, he would assault her again and kill her. He then drove her to her home.
The victim arrived home visibly upset. She told her father that she was upset because she had argued with a friend. A short time later, the victim's older sister, seeing how extremely troubled she was, asked the victim repeatedly what had happened. After making her sister promise not to tell anyone, the victim finally disclosed that the defendant had sexually assaulted her. At the urging of her sister and her brother, whom she subsequently had told, the victim then told her parents that the defendant had sexually assaulted her. Because she was afraid, however, she refused to go to the hospital or call the police that night. The following day, the victim went to see a doctor because she was experiencing pain. She also informed the police, who later arrested the defendant.
In 1987, the defendant fled the country while awaiting trial. Eight years later, in 1995, the defendant surrendered to authorities in Switzerland and he was returned to this country for trial. Additional facts will be provided as necessary.
The defendant first claims that the trial court improperly denied his challenges for cause to excuse four of the venirepersons. Specifically, the defendant contends: (1) that the trial court's denial of his challenges for cause improperly forced him to use four of his peremptory challenges to remove the venirepersons, thereby violating his state constitutional right to a jury trial; and (2) that the failure to excuse those four venirepersons for cause constituted an abuse of the trial court's discretion. We disagree.
Certain additional facts are necessary for the resolution of this issue. Prior to voir dire, the trial court granted the defendant's motion for additional peremptory challenges, allotting sixteen challenges, twice the normal amount, to each side. See General Statutes § 54-82h. The trial court also advised the parties that they could request additional peremptory challenges if needed. During the lengthy jury selection, the trial court denied the defendant's challenges for cause to venirepersons D.U., G.R., B.V. and K.J.5 The defendant then exercised four of his peremptory challenges to excuse those venirepersons. When jury selection was concluded, the defendant still retained one of the sixteen peremptory challenges that he had been given by the trial court.
The defendant claims that the trial court's denial of his challenges for cause to these four venirepersons improperly forced him to use four of his peremptory challenges in violation of his right to a jury trial pursuant to article first, § 19, of the Connecticut constitution, as amended by article four of the amendments,6 and further, that it constituted an abuse of the trial court's discretion. These claims are without merit.7
Article first, § 19, "reflects the abiding belief of our citizenry that an impartial and fairly chosen jury is the cornerstone of our criminal justice system."8 (Internal quotation marks omitted.) State v. Day, 233 Conn. 813, 845, 661 A.2d 539 (1995). State v. Day, supra, 843.
We have held, however, that even an improper denial of a challenge for cause provides cause for reversal only if "the party [who makes the challenge] subsequently exhausts all of his or her peremptory challenges and an additional challenge is sought and denied." (Internal quotation marks omitted.) State v. Esposito, 223 Conn. 299, 313, 613 A.2d 242 (1992). In this case, the defendant exercised only fifteen of his sixteen peremptory challenges and never sought any additional challenges. Accordingly, he cannot prevail on his claim that the trial court's denial of four of his challenges for cause was improper.9
The defendant next claims that the trial court improperly denied his pretrial motion to sequester the jury due to the pretrial publicity surrounding the case and thereby deprived him of the right to a fair trial. We disagree.
It is well settled that the decision whether to sequester the jury rests within the sound discretion of the trial court, and is one that we will not disturb on appeal absent a clear abuse of that discretion. State v. Piskorski, 177 Conn. 677, 691, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). "Sequestration is an extreme measure, one of the most burdensome tools of the many available to assure a fair trial." (Internal quotation marks omitted.) United States v. Greer, 806 F.2d 556, 557 (5th Cir. 1986). Therefore, "it is only when there is shown to exist a trial atmosphere . . . utterly corrupted by press coverage; Dobbert v. Florida, [432 U.S. 282, 303, 97 S. Ct. 2290, 53 L. Ed. 2d 344 (1977)]; that unfairness of constitutional magnitude will be presumed." (Internal quotation marks omitted.) State v. Piskorski, supra, 692.10
The classic example of a trial atmosphere "utterly corrupted by press coverage"; (internal quotation marks omitted) id.; is that which was described in Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966). As we described in State v. Piskorski, supra, 177 Conn. 687, in the criminal defendant's underlying murder trial
Although, as the defendant in the present case points out, there was a great...
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State v. Elson, No. 31511.
...is whether, at the time of sentencing, the court improperly had considered his decision to proceed to trial. In State v. Kelly, 256 Conn. 23, 79-84, 770 A.2d 908 (2001), our Supreme Court addressed on its merits an identical type of claim. In Kelly , the defendant claimed "that the trial c......
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... ... Graham, 450 U.S. 24, 28, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981), quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26, 18 L. Ed. 356 (1867) ; accord State v. Kelly, 256 Conn. 23, 88, 770 A.2d 908 (2001). Thus, "[t]o fall within the ex post facto prohibition, a law must be retrospective — that is, it must apply to events occurring before its enactment — and it must disadvantage the offender affected by it ... by altering the definition of criminal ... ...
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