State v. Nunes

• Decision Date: 02 July 2002
• Docket Number: (SC 16513).
• Citation: 800 A.2d 1160,260 Conn. 649
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. JOAO Q. NUNES

260 Conn. 649

800 A.2d 1160

STATE OF CONNECTICUT v. JOAO Q. NUNES

(SC 16513).

Supreme Court of Connecticut.

Argued February 15, 2002.

Officially released July 2, 2002.

Sullivan, C. J., and Borden, Katz, Vertefeuille and Zarella, Js. Margaret Gaffney 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 appellant (state).

Alinor C. Sterling, special public defender, with whom, on the brief, was Ira B. Grudberg, special public defender, for the appellee (defendant).

Opinion

BORDEN, J.

The state appeals, following our grant of certification, from the judgment of the Appellate Court reversing the defendant's conviction on charges of assault in the second degree and illegal distribution of a controlled substance. The state claims that the Appellate Court improperly concluded that the evidence was insufficient to establish beyond a reasonable doubt that the victim¹ was administered particular drugs, namely, temazepam, chloral hydrate or a combination of the two. We reverse the judgment of the Appellate Court and remand the case to that court with direction to affirm the judgment of the trial court.

The defendant, Joao Q. Nunes, was convicted, after a jury trial, of one count of assault in the second degree in violation of General Statutes § 53a-60 (a),² one count of illegal possession of a controlled substance in violation of General Statutes § 21a-279 (c),³ and one count of illegal distribution of a controlled substance in violation of General Statutes § 21a-277 (b).⁴ The defendant appealed from the judgment of the trial court to the Appellate Court contending, inter alia, that the evidence on the assault and illegal distribution charges was insufficient to establish beyond a reasonable doubt that the victim actually had ingested temazepam, chloral hydrate or a combination of the two.⁵ The Appellate Court reversed the defendant's conviction on the assault and illegal distribution charges, and remanded the case to the trial court with direction to render a judgment of acquittal on those charges. State v. Nunes, 61 Conn. App. 668, 683, 767 A.2d 181 (2001). This certified appeal followed.⁶

The underlying facts, as set forth by the Appellate Court, are as follows. "Between May and September, 1993, the victim⁷ 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.

"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. 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.<sup>8</sup> 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. 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. 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.⁹

"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, 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. 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.' 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 materials 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, the state forensic laboratory detected no narcotics or controlled drugs on the two glasses, 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." State v. Nunes, supra, 61 Conn. App. 670-74. Additional facts will be set forth as necessary.

I

The state claims that the Appellate Court improperly concluded that there was insufficient evidence to sustain the defendant's conviction on the assault and illegal distribution charges because, in the Appellate Court's view, there was insufficient evidence that the defendant administered chloral hydrate, or temazepam, or both, to the victim. Specifically, the state contends that there was sufficient evidence from which a jury reasonably could have concluded that the defendant administered chloral hydrate, or temazepam, or a combination thereof, to the victim. We agree that the evidence was sufficient for the jury reasonably to conclude that the defendant administered chloral hydrate to the victim.¹⁰

A

Before reaching the merits of this issue, we briefly address the state's claim that, with respect to the assault charge, it was required to prove only that the defendant administered, without the consent of the victim, "a drug, substance or preparation capable of producing [stupor, unconsciousness or other physical impairment or injury]"; General Statutes § 53a-60 (a) (4); not that...