State v. Morgan

• Decision Date: 15 January 2013
• Docket Number: No. 33080.,33080.
• Citation: 57 A.3d 857,140 Conn.App. 182
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Robert Omar MORGAN.

140 Conn.App. 182

57 A.3d 857

STATE of Connecticut

v.Robert Omar MORGAN.

No. 33080.

Appellate Court of Connecticut.

Argued Oct. 10, 2012.

Decided Jan. 15, 2013.

Jeffrey D. Cedarfield, West Hartford, for the appellant (defendant).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Elizabeth C. Leaming, senior assistant state's attorney, for the appellee (state).

LAVINE, BEAR and ESPINOSA, Js.

BEAR, J.

The defendant, Robert Omar Morgan, appeals from the judgments of conviction, rendered after a jury trial, in docket number CR09–0095016, of aggravated sexual assault in the first degree in violation of General Statutes § 53a–70a (a)(1), kidnapping in the first degree with a firearm in violation of General Statutes § 53a–92a (a) and threatening in the second degree in violation of General Statutes § 53a–62,¹ and, in docket number CR09–0095017, of attempt to commit aggravated sexual assault in the first degree in violation of General Statutes §§ 53a–49 (a)(2) and 53a–70a (a)(1), attempt to commit kidnapping in the first degree with a firearm in violation of §§ 53a–49 (a)(2) and 53a–92a (a), assault in the third degree in violation of General Statutes § 53a–61 and criminal mischief in the third degree in violation of General Statutes § 53a–117 (a)(1). ² On appeal, the defendant claims that (1) there was insufficient evidence to support the jury's verdicts, (2) the court abused its discretion in consolidating the cases for trial and (3) the court improperly denied his motion for a new trial after he was deprived of due process by the prosecutor's improper questions and statements during closing argument. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts concerning the charges in docket number CR09–0095016. In September, 2008, victim one ³ was a college senior, studying biomedical engineering, at the University of Connecticut (university). She resided in the Crandall building of the Hilltop Apartments, located behind Gampel Pavilion, up a hill. Shortly after midnight on September 6, 2008, victim one, wearing a new black shirt and a pair of jeans, took the late bus to the student union building with approximately eight of her friends. After talking with another friend at the student union for a while, victim one realized that the friends with whom she had arrived were no longer there. After reaching them via her cell phone, victim one learned that they already had left the student union to attend an off-campus party. Not wanting to go home and be alone, victim one telephoned her friend Cassandra to see if she wanted to do something. It was approximately 1 a.m., and, as victim one walked from the student union toward Gampel Pavilion, she talked with Cassandra, who explained that she was tired and was going to go to bed. Victim one then telephoned her friend Stephanie and made plans to go to Stephanie's apartment, which was located in the Bethune building of the Hilltop Apartments.

As she continued to talk to Stephanie while walking toward the Hilltop Apartments, victim one, who was walking on a well-paved and very well lit path, with some woods to her left, heard footsteps running behind her. When she turned around, the defendant, whom she described as a black male, approximately five feet, eight inches tall, wearing very baggy black pants and a hooded sweatshirt, with something that looked like a black and white bandana across the bottom of his face, was coming at her. The defendant grabbed victim one's cell phone, put his gloved hand over her mouth and pushed her to the ground. He also demanded money. When victim one attempted to give him her money, however, the defendant would not take it, and he attempted to move victim one into the woods. Victim one was lying face down, and the defendant put a gun against the back of her head. After victim one was well into the woods, the defendant told her that he was going to kill her.

The defendant also asked victim one if she knew him; he then claimed that they had met at a party. Victim one remembered that she had met someone named Morris at a party approximately one week prior and that she had rejected him. After the defendant repeatedly asked victim one to state whom she thought he might be, victim one stated that she believed him to be Morris. The defendant then told her that she was correct. Victim one asked the defendant what he wanted from her, and he responded that he wanted her to take him to her apartment where he could make love to her. Victim one asked the defendant not to do this. The defendant then told the victim that it was “sex or [her] life.”

During much of this conversation, victim one continued to lie face down, with the defendant holding what she thought was a gun to the back of her head or to her back. The defendant also placed a blindfold over the eyes of victim one, and, after victim one begged him to wear a condom, he helped her get up from the ground, they shook hands, and he had her feel a wrapped condom, which was in his hand. He also told her, however, that he did not have to wear the condom and that she did not know what diseases he might have. The defendant then moved victim one further into the woods, where he told her to remove her pants and to lean against a tree. The defendant groped victim one and grabbed her right breast over her new shirt. While victim one was pressed against a tree, the defendant attempted to penetrate both her anus and her vagina. The defendant had difficulty fully penetrating victim one, so he made her lie on the ground where he attempted again to penetrate her vaginally. Victim one repeatedly told the defendant that he was hurting her. The defendant yelled at the victim because he was having difficulty fully penetrating her; victim one tried to explain that she was a virgin and that she was not trying to hinder him. The defendant accused her of making things difficult for him.

The defendant had the victim move again, and he again ordered her to lie face down. He removed her blindfold, told her that he was going to kill her, and she then felt something drop on top of her head, although it was not heavy. The defendant told her to continue lying face down and not to move. Victim one then could hear that the defendant was moving further and further away from her. It appeared to victim one that the defendant was speaking to someone, perhaps on a cell phone, because he would speak, pause, and then speak again. She also heard him say something like: “It didn't go as planned....” (Internal quotation marks omitted.) Victim one waited for a brief period of time, then lifted her head and looked to see if the defendant was gone. She looked toward the lighted soccer field, located near the woods, and she saw the defendant jumping over the fence to the field. She also discovered that the item dropped on her head was her pants.

Victim one grabbed some of her belongings and ran up a hill toward the Hilltop Apartments, where she encountered a man and a woman whom she asked for help. Victim one was screaming and appeared to be very frightened. The man and woman escorted victim one into an apartment in Beard Hall, and the man telephoned 911. When Officer Paul Asella of the university police department arrived, victim one was hysterical. Officer Dawn Tomalonis also arrived at the apartment. Victim one later was transported to Rockville General Hospital, where a sexual assault collection kit was administered, and she was provided with medical treatment. Tomalonis drove to the hospital to offer comfort to victim one and to provide answers to her questions. While at the hospital, victim one was extremely upset, crying and shaking. She was “extremely tearful, very tremulous, act[ing] very ashamed and humiliated.” A nurse placed victim one's clothing in an evidence bag and gave it to Tomalonis. The police later delivered that clothing and the sexual assault collection kit to the Connecticut Forensic Science Laboratory (lab) for DNA testing.

Following a wind and rain storm that occurred later during the morning of the attack, Asella went to the area of the reported attack with his K–9, Bennie, to look for physical evidence. Victim one's cell phone had been recovered in the area earlier that morning by Lieutenant Hans Rhynhart, and Asella had Bennie begin his search from that location. Bennie moved south, “almost in a tracking posture,” and found victim one's underwear, money and identification cards. Bennie then continuedsouth/southeast to a fence at the soccer field, traveled along the fence line toward Stadium Road, turned west on that road and then went south onto Separatist Road. The search terminated at the Knollwood Apartments, which is where Morris lived.

The police questioned Morris and searched his apartment, but his account of his whereabouts at the time of the assault was corroborated by another person and by his cell phone records. The lab conducted an analysis of victim one's new shirt and, although the presence of semen or sperm was not detected, it was determined that the breast area of the shirt had at least three contributors to the DNA profile established, one of the contributors being victim one. ⁴ The lab also was able to determine that at least one of the contributors was male. Morris fully cooperated with the police in providing a DNA sample for analysis, which analysis excluded him as a possible contributor to the DNA profile obtained from the testing of victim one's new shirt. The profile obtained from the shirt, however, was entered into a national database, referred to as CODIS,⁵ which, on June 18, 2009, found a match with a profile obtained from a white stain inside the front collar of a T-shirt that was evidence in another university sexual assault case. Further testing revealed that the defendant was a contributor to the DNA profile obtained from victim one's new shirt.⁶

The...