State v. Kelly, 13242

• Court: Supreme Court of Connecticut
• Citation: 208 Conn. 365,545 A.2d 1048
• Decision Date: 26 July 1988
• Docket Number: No. 13242,13242
• Parties: STATE of Connecticut v. James J. KELLY.

Page 1048

545 A.2d 1048 208 Conn. 365 STATE of Connecticut
v.
James J. KELLY. No. 13242. Supreme Court of Connecticut. Argued Feb. 9, 1988.
Decided July 26, 1988.

[208 Conn. 366]

Page 1049

Kenneth Rosenthal, Sp. Public Defender, with whom, on the brief, was Jon C. Blue, Asst. Public Defender, for appellant (defendant).

Carolyn K. Longstreth, Deputy Asst. State's Atty., for appellee (state).

Before ARTHUR H. [208 Conn. 365] HEALEY, SHEA, CALLAHAN, GLASS and HULL, JJ.

[208 Conn. 366] GLASS, Associate Justice.

In November, 1985, the defendant was tried by a jury on a four count information charging him with kidnapping in the second degree in violation of General Statutes § 53a-94, ¹ robbery in the first degree in violation of General Statutes § 53a-134(a)(3), ² larceny in the second degree in violation of General Statutes § 53a-123(a)(1), ³ and sexual assault in the fourth degree in violation of General Statutes § 53a-73a(a)(2). ⁴ He was acquitted of the robbery charge and convicted on the remaining three counts. The trial court imposed consecutive sentences of twenty years on the kidnapping count, ten years on the larceny count and one year on the sexual assault count, for a total effective sentence of thirty-one years of incarceration.

[208 Conn. 367] The defendant claims that the trial count erred in: (1) closing the courtroom over his objection in violation of his constitutional right to a public trial; (2) excluding entirely evidence of prior complaints and ongoing psychological problems bearing directly on the complainant's credibility, state of mind, powers of perception and recollection in violation of his rights to confront his accusers, to present a defense and to due process of law; (3) denying him access to all records of the complainant's psychiatric problems, rape crisis counseling, and the testimony she had given in a similar sexual assault case, in violation of his rights to due process, confrontation and compulsory process under the state and federal constitutions; (4) denying his motions to strike testimony and for a judgment of acquittal and his request for an adverse inference instruction based on the destruction of an alleged second statement of the complainant to the New Haven police; and (5) denying his motion for judgment of acquittal on the larceny count. We find no error.

The jury could reasonably have found that on April 1, 1985, the complainant drove to New Haven from her parent's home in New Jersey to visit friends, and spent the night with her boyfriend at Yale University. The previous year she had been a student at the university. On April 2, at about 6 a.m., she left her boyfriend's room, planning to drive to her place of employment in New Jersey. Her car was

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parked in a nearby parking lot. As she walked toward her car the defendant began to follow her, and when she reached her car and turned around, he was standing next to her. The defendant told her that his name was Pete, that she was pretty, and that he wanted her to be his girlfriend. While repeatedly putting his hand in his pocket he told her that he had a knife and could make her do whatever he wanted. He asked her if she had any money and she gave him ten dollars, hoping that he would then leave [208 Conn. 368] her alone. Instead, the defendant pushed her against the car, tried to kiss her and grabbed roughly at her breasts and thighs. She unsuccessfully tried to push him away. She did what the defendant ordered because she thought that he had a knife and was afraid of him. As he ordered, she opened the door, let him in and also entered the car herself in order to drive.

The complainant drove the car to a stoplight near the exit of the parking lot. At that point the defendant ordered her to let him drive. They changed seats and he drove the car to the area of the Yale-New Haven Hospital where he stopped in front of a house. He stated that he lived there and wanted to go inside, but could not find a parking space. He stopped the car in the driveway next to the house and forced the complainant to perform fellatio. Afterwards, as the defendant was driving around, the complainant persuaded him to stop at a pay telephone because she had told him that if she did not arrive at work on time, her employer would come looking for her. The complainant intended to call the police, but the defendant followed her to the telephone. She called her boyfriend's room and spoke with his roommate. After hanging up she asked the defendant for permission to make another call, but the defendant became angry and told her to get back into the car, saying "No more phone calls."

Because she was afraid of the defendant the complainant got back into the car, but jumped out at the next traffic light and ran along the street toward Yale-New Haven Hospital. The defendant followed her in the car and then on foot. When he caught her he stated, "Nobody ever runs away from me," and then pinned her against a wooden wall surrounding a construction site, kissed her and touched her breasts and inner thighs.

[208 Conn. 369] While the complainant and the defendant were struggling, Patricia Bougourd drove by, came to a stoplight and noticed them struggling. She motioned to the complainant and unlocked the passenger door of her car. The complainant broke away from the defendant, ran to Bougourd's car and got inside. Bougourd drove the complainant to the nearby YWCA, and called the police.

Officer Hilda Kilpatrick responded to Bougourd's call. She interviewed the complainant as well as Bougourd and then broadcasted on the police radio a description of the defendant, the complainant's car and its license number. Soon thereafter, another police officer observed the defendant at the parking lot where the complainant had parked her car overnight, stopped him, patted him down and found the complainant's car keys in his pocket. The complainant and Bougourd were brought to the parking lot and they both identified the defendant as the person from whom the complainant had escaped. The defendant was arrested.

I

The defendant first claims that the trial court erred in closing the courtroom in violation of his constitutional right to a public trial. Prior to trial, on November 7, 1985, the state moved, pursuant to General Statutes § 54-86f ⁵ (rape shield statute), to

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close the hearing on [208 Conn. 370] the defendant's motion to offer evidence of a prior sexual assault on the complainant. After a hearing, the trial court granted the state's motion. The state thereafter proceeded with the presentation of its case and the direct examination of the complainant was conducted in open court and was completed on November 14, 1985. Prior to the commencement of her cross-examination, the trial court ordered the closure of the courtroom. Neither the defendant nor any other interested party had appealed the court's November 7 closure order.

As a threshold issue we must determine whether the defendant's closure claim is reviewable. Under § 54-86f, evidence of prior sexual misconduct is "admissible only after a hearing on a motion to offer such evidence containing an offer of proof." In anticipation of the defendant's motion to put in issue the complainant's prior sexual conduct, the state exercised its right to have such a hearing held in camera. A hearing held pursuant to § 54-86f is subject to the provisions of General Statutes § 51-164x which provides that "[a]ny person affected by a court order which prohibits any person from attending any session of court ... shall have the right to appeal such order by filing a petition for review with the appellate court within seventy-two [208 Conn. 371] hours from the issuance of such court order." Thus, the defendant and the general public had seventy-two hours in which to appeal to the Appellate Court the order of the trial court issued on November 7, 1985.

This statutory right to an expedited review of a closure order provides immediate protection of a defendant's right to a public trial. While the record indicates that the defendant objected to the closure order, it also indicates that he failed to pursue the statutory remedy provided by the legislature to challenge the validity of the order. We recognize that "[t]he failure to provide a public trial deprives the defendant of a fundamental constitutional right and the public of access to an open judicial forum." State v. Sheppard, 182 Conn. 412, 418, 438 A.2d 125 (1980); State v. Frazier, 185 Conn. 211, 230-31, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S.Ct. 3496, 73 L.Ed.2d 1375 (1982). Since the record does not reflect any justifiable reason for the defendant's failure to pursue the statutory remedy of an expedited appeal, we would ordinarily decline to review the claim that the trial court erred in ordering closure. "A statute which provides that a thing shall be done in a certain way carries with it an implied prohibition against doing that thing in any other way." State ex rel. Barlow v. Kaminsky, 144 Conn. 612, 620, 136 A.2d 792 (1957). The defendant's claim, however, raises an issue of constitutional dimension and we find that it comes within one of the exceptions in State v. Evans, 165 Conn. 61, 65, 327 A.2d 576 (1973). "We refer to that situation delineated in Evans which allows review where the record, as here, is sufficiently complete for us to consider the claims on the merits and the claims involve a fundamental constitutional right." State v. Godek, 182 Conn. 353, 356, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S.Ct. 1741, 68 L.Ed.2d 226 (1981).

[208 Conn. 372] Turning to the substance of the defendant's claim, we note that the United

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States Supreme Court has articulated the following standards regarding closure. "The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that...