State v. Nunes

• Court: Connecticut Court of Appeals
• Writing for the Court: HEALEY, J.
• Citation: State v. Nunes, 767 A.2d 181, 61 Conn. App. 668 (Conn. App. 2001)
• Decision Date: 13 February 2001
• Docket Number: (AC 18096)
• Parties: STATE OF CONNECTICUT v. JOAO Q. NUNES

61 Conn. App. 668

767 A.2d 181

STATE OF CONNECTICUT v. JOAO Q. NUNES

(AC 18096)

Appellate Court of Connecticut.

Argued September 21, 2000.

Officially released February 13, 2001.

Lavery, C. J., and Foti and Healey, Js. Alinor C. Sterling, with whom, on the brief, was Ira B. Grudberg, for the appellant (defendant).

Margaret G. Radionovas, assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and David Zagaja, assistant state's attorney, for the appellee (state).

Opinion

HEALEY, J.

The defendant, Joao Q. Nunes, appeals from the judgment of conviction, rendered after a jury trial, of assault in the second degree in violation of General Statutes § 53a-60 (a) (4)¹ (count one), illegal possession of a controlled substance in violation of General Statutes § 21a-279 (c)² (count two) and illegal distribution of a controlled substance in violation of General Statutes § 21a-277 (b)³ (count three).⁴ On appeal, the defendant claims that the trial court improperly (1) denied his motions for a judgment of acquittal and for a directed verdict on the first and third counts of the information because the evidence was insufficient to establish beyond a reasonable doubt that the victim was drugged with temazepam, chloral hydrate or a combination of both, and (2) denied the defendant's motion to set aside the verdict as to counts one, two and three because the court improperly admitted testimony regarding alleged prior misconduct committed by the defendant. We reverse in part and affirm in part the judgment of the trial court.

The jury reasonably could have found the following facts. Between May and September, 1993, the victim⁵ worked as a computer graphics artist with an East Hartford graphics firm. The firm had a contract with the Hartford police department to prepare a slide presentation about community policing. The defendant, a Hartford police officer since November 26, 1979, worked with the victim between May and August, 1993.⁶ On or about September 7, 1993, after they had completed the project, the defendant telephoned the victim and asked if she would be interested in going out on a surveillance operation that involved the use of a new infrared camera that the police department had acquired.⁷ After some convincing by the defendant, she agreed to meet him that evening.

At approximately 7 p.m. on September 7, 1993, the victim went to the defendant's office in the police department, at which time he began describing the department's new printer and computer. He wanted to show her how the printer worked and printed a picture. When it printed a picture of a woman who "was either naked or wearing a skimpy bathing suit," the victim became embarrassed and told him that she did not want to see the picture. After showing her the picture, he asked if she wanted something to drink. She initially declined, but then agreed to have some already prepared iced tea, which he took out of a small refrigerator in his office. She drank it within a few minutes.⁸ Immediately after he gave her the iced tea, the defendant left the room to get a bulletproof vest for the victim to wear because they were going out on surveillance. The defendant then returned with the vest and told her to put it on.⁹ About three to five minutes after drinking the iced tea, the victim began feeling "foggy," "sluggish" and "really dizzy."

The defendant and the victim then walked through a hallway to a classroom that contained gym mats. The defendant turned the lights off and started to show the victim how the infrared camera worked. She sat on a chair and, when he turned the lights on, he noticed that the victim looked pale. He suggested that she lie down on a mat. The defendant said that he had to speak to someone, and turned off the lights and left the classroom.

The next thing that the victim remembered was that she was lying on the mat, "fading in and out," "feeling very dizzy, foggy," and that "she knew something wasn't right." As she awoke, the defendant was at her right side. She no longer was wearing the bulletproof vest. The defendant then asked if he could kiss her and, although she refused, he kissed her anyway.

Next, the victim sat up and said that she wanted to go home. The defendant suggested, and the victim agreed, that he should drive her home because she was in no condition to drive herself. On the way to the victim's house, they stopped once to get soda. They stopped again because the victim felt sick and she vomited.

After she arrived home, the victim slept through the night until about 5:30 a.m., at which time her head had cleared and her stomach problem had disappeared. She then called her boyfriend and asked him to come to her home. When he arrived, he observed her "crying hysterically." She told him that she thought she had been drugged and sexually assaulted the night before. He took her to the East Hartford police department, but she refused to go inside, so they returned to her home. There, the victim told her mother what she believed had happened. Her mother suggested that she go to a hospital to find out what she had ingested. After contemplating her mother's advice, she went to the hospital that afternoon. While there, she told the hospital staff that she thought she had been drugged and sexually assaulted, but denied that a rape had occurred.¹⁰

At the hospital, tests were performed on the victim's blood and urine. No alcohol was detected. Tests also were performed to determine whether she had ingested certain types of drugs; those tests were negative. Most notably, the tests were negative for benzodiazepines, which include temazepam,¹¹ one of the drugs the state charged the defendant with putting in the victim's iced tea. The other drug the state charged the defendant with putting in the victim's drink was chloral hydrate.¹² The hospital did not test for that drug. Temazepam and chloral hydrate are controlled substances.

Upon returning home from the hospital on September 8, 1993, the victim noticed that the defendant had telephoned her. She then telephoned him. When they spoke, she asked the defendant what he had put in her drink. She testified that his response was, "All kinds of good stuff."¹³ She then told him that she knew something had happened and that he was not going to get away with it. She also informed the defendant that she was going to proceed further. That was her last contact with the defendant.

On September 10, 1993, she reported the incident to the East Hartford police, and met with Lieutenant Timothy Hogan and Sergeant Antonio Cancel of the Hartford police department. She gave them a tape-recorded statement that later was reduced to a written statement, which she signed. On September 14, 1993, Cancel and Sergeant Robert O'Connell of the Hartford police department informed the defendant that he was the subject of a criminal investigation generated by a complainant who claimed that she was drugged and sexually assaulted on September 7, 1993. Those officers then took a written statement from the defendant.

On September 14 and 15, 1993, the police officers seized certain materials¹⁴ from the defendant's office in the Hartford police department. Those materials included: Two glasses, one found on a windowsill and one on a refrigerator; some iced tea mixture (brownish powder); a bulletproof vest; a bottle of chloral hydrate, which was found behind some files in the top drawer of a locked file cabinet; a Tylenol bottle containing some yellow capsules; a Nuprin bottle containing white pills, which was locked in a portion of the defendant's desk; and an eight millimeter radio cassette tape found inside a Canon video camcorder.

Upon testing,¹⁵ the state forensic laboratory detected no narcotics or controlled drugs on the two glasses,¹⁶ in the Tylenol bottle or in the brownish powder. The Nuprin bottle, however, contained a number of clear capsules that, according to the forensics tests, contained temazepam. Further, tests that were performed on the bottle labeled "chloral hydrate," disclosed that it did, in fact, contain chloral hydrate. Additional facts will be set forth as necessary.

I

The defendant claims that the evidence was insufficient to support his conviction on counts one and three, the assault and illegal distribution charges, because it did not permit the jury to find that the victim actually ingested either temazepam, chloral hydrate or a combination of the two. We agree.

"[W]e have consistently employed a two-part analysis in appellate review of the sufficiency of the evidence to sustain a criminal conviction.... First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... That the evidence is circumstantial rather than direct does not diminish the probative force of that evidence.... We must be mindful, however, that [a]lthough the jury may draw reasonable, logical inferences from the facts proven, [it] may not resort to speculation and conjecture.... Each essential element of the crime must be proved beyond a reasonable doubt." (Citations omitted; internal quotation marks omitted.) State v. Caprilozzi, 45 Conn. App. 455, 463-64, 696 A.2d 380, cert. denied, 243 Conn. 937, 702 A.2d 644 (1997).

An essential element necessary to the jury's finding the defendant guilty on counts one and three was that the victim actually ingested temazepam, chloral hydrate or a combination of the two.¹⁷ The defendant claims that the state failed to prove that beyond a reasonable doubt and, therefore, that this court should reverse the judgment of conviction as to counts one and three, and order that a judgment of acquittal be rendered as to those counts.¹⁸

In arguing that there was insufficient evidence, the...