State v. Palmer, s. 12785

CourtSupreme Court of Connecticut
Citation206 Conn. 40,536 A.2d 936
Docket Number12786 and 12787,Nos. 12785,s. 12785
PartiesSTATE of Connecticut v. Edward PALMER.
Decision Date19 January 1988

Page 936

536 A.2d 936
206 Conn. 40
STATE of Connecticut
v.
Edward PALMER.
Nos. 12785, 12786 and 12787.
Supreme Court of Connecticut.
Argued Oct. 9, 1987.
Decided Jan. 19, 1988.

[206 Conn. 42]

Page 937

John R. Williams, New Haven, for appellant (defendant).

Richard F. Jacobson, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Frank S. Maco, Asst. State's Atty., for appellee (state).

Before [206 Conn. 40] HEALEY, CALLAHAN, GLASS, COVELLO and HULL, JJ.

CALLAHAN, Associate Justice.

By three separate indictments and amended informations, the defendant, Edward Palmer, was charged with the following crimes: three counts of kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A); 1 three counts of unlawful restraint in the first degree in violation of General Statutes § 53a-95(a); 2 three counts of sexual assault in the first degree in violation of General Statutes § 53a-70(a); 3 three counts of sexual assault in the first degree with a firearm in

Page 938

violation of General Statutes § 53a-70a(a); 4 two counts of robbery in the first degree [206 Conn. 43] in violation of General Statutes § 53a-134(a)(4); 5 and one count of assault in the third degree in violation of General Statutes § 53a-61(a)(1). 6 The defendant pleaded not guilty to all the charges and elected a trial by a jury of twelve. Prior to trial, the trial court granted the defendant's oral motion to consolidate docket numbers 12785, 7 12786 8 and 12787 9 for purposes of trial.

The defendant was found guilty of three counts of kidnapping in the first degree, three counts of unlawful restraint in the first degree, one count of sexual assault in the first degree, two counts of sexual assault in the first degree with a firearm, two counts of robbery[206 Conn. 44] in the first degree, and one count of assault in the third degree. The trial court sentenced the defendant on all counts to a total effective sentence of not more than life, plus life, plus fifty-seven years and not less than seventy-seven years with the sentences to run consecutively with any sentence the defendant was then serving.

On appeal, the defendant claims that the trial court erred in: (1) instructing the jury regarding intent in connection with the crime of kidnapping in the first degree; (2) unlawfully imposing consecutive sentences in each case for the lesser included offense of unlawful restraint in the first degree; (3) refusing to strike the testimony of two of the victims whose prior recorded statements given while under hypnosis had been lost by the police and not disclosed during discovery; and (4) admitting the voice identification testimony of two of the victims in violation of the defendant's fifth, sixth and fourteenth amendment rights under the United States constitution. We find no error.

At trial, the jury could reasonably have found the following facts.

DOCKET No. 12787

At approximately 9:15 p.m. on November 25, 1980, W was accosted by a man with a

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gun on McKinley Avenue, in Bridgeport. The assailant covered the victim's eyes with a scarf, forced her into the trunk of a car at gunpoint, and drove off. Shortly thereafter, the victim was transferred to the trunk of a second car and driven to a building. The victim recalled that, at the building and after being taken out of the trunk of the automobile, she heard the loud sounds of traffic, was walked over a grassy area, a curb, then a sidewalk, and carried up some stairs into the building where she was sexually assaulted. After the assault, the assailant engaged the victim in conversation for a short time and [206 Conn. 45] thereafter drove her to the vicinity of Capitol and Madison Avenues where she was let out of the car.

DOCKET No. 12786

On December 11, 1980, at approximately 2 a.m., O arrived at her home in Bridgeport from a downtown restaurant and encountered a man with a silver gun. She was abducted, placed on the floor of a station wagon, driven away, and later transferred to the floor of a second car. She recalled that after being taken from the second car, she was walked over a grassy area, a large curb and then carried into a building where she was sexually assaulted. As in the assault of W, the assailant told O to insert his penis into her. After the sexual assault, the assailant lay by the victim's side and engaged her in conversation for a period of time. The assailant then dressed her, took $8 from her purse and drove her to the corner of Madison and Lincoln Avenues where she was let out of the car.

DOCKET No. 12785

On December 16, 1980, at approximately 1:30 a.m., K was on her way to a party when, due to icy roads, she decided to go straight home. As she exited the Connecticut turnpike at the Broad Street exit in Stratford, her automobile was bumped from the rear. When she got out of her car she was accosted and then abducted by a man with a silver gun who was wearing a dark mask. The assailant forced the victim into the front seat of her own car, placed tape over her eyes, and drove her car away. When the car stopped, K recalled being walked across a dirt and grassy area, a curb, and then being carried up some stairs into a room. She was also sexually assaulted. As were the other victims, she was instructed to insert her assailant's penis into her. Later, after carrying her back to her car, the assailant engaged the victim in conversation and again displayed a silver gun. K was driven to Lafayette Street in Bridgeport [206 Conn. 46] where the assailant took money from her purse, got out of her car, said goodbye and left on foot.

I

The first claim of error is that the trial court unconstitutionally instructed the jury to presume the existence of the defendant's intent as it related to the crime of kidnapping in the first degree. The defendant contends that the trial court, in effect, directed a verdict of guilty as to the three counts of kidnapping in the first degree by instructing the jury as follows: "Of course ... if you find that he actually did inflict some sexual violation or abuse, there could be little question that he intended to." The defendant argues that the instruction constituted a mandatory presumption in violation of the Sandstrom doctrine. 10 Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). We disagree.

It is well established that individual jury instructions are not to be judged in artificial isolation, but must be viewed in the context of the overall charge. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); State v. Silano, 204 Conn. 769, 773, 529 A.2d 1283 (1987); State v. Dolphin, 195 Conn. 444, 451, 488 A.2d 812 (1985), cert. denied, 474 U.S. 833, 106 S.Ct. 103, 88 L.Ed.2d 84 (1985). " 'The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict; State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982); State v. Williams, 182 Conn. 262, 269, 438 A.2d 80 (1980); State v. Piskorski, 177 Conn. 677,

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746-47, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S.Ct. 283, 62 L.Ed.2d 194 (1979); and not critically dissected in a microscopic search for possible error. State v. Harris, 172 Conn. 223, 226-27, 374 A.2d 203 [206 Conn. 47] (1977).' State v. Reddick, 197 Conn. 115, 132, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S.Ct. 822, 88 L.Ed.2d 795 (1986); State v. Miller, [202 Conn. 463, 491-92, 522 A.2d 249 (1987) ]; State v. Whelan, [200 Conn. 743, 757, 513 A.2d 86, cert. denied, --- U.S. ----, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986) ]; State v. Widget, 11 Conn.App. 47, 52, 525 A.2d 548 (1987)." State v. Silano, supra.

"In Sandstrom v. Montana, supra, [442 U.S.] 517-24 [99 S.Ct. at 2455-59], the United States Supreme Court held that a jury instruction that 'the law presumes that a person intends the ordinary consequences of his voluntary acts' violated the defendant's due process rights because a reasonable jury could have interpreted the instruction as a conclusive or burden-shifting presumption and thus relieved the state of its burden of proving every element of the crime. See Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985); United States v. United States Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).... We have, however, recognized that the rule of Sandstrom must not be oversimplified. State v. Mason, 186 Conn. 574, 582-83, 442 A.2d 1335 (1982); State v. Pina, 186 Conn. 261, 263, 440 A.2d 967 (1982). Sandstrom does not invalidate, for example, the use of an 'entirely permissive inference or presumption, which allows--but does not require--the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and that places no burden of any kind on the defendant.' Ulster County Court v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777 (1979); see State v. Fernandez, 198 Conn. 1, 20, 501 A.2d 1195 (1985); State v. Arroyo, 180 Conn. 171, 175, 429 A.2d 457 (1980). 'A permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury [206 Conn. 48] to draw that conclusion.' " State v. Amarillo, 198 Conn. 285, 300-302, 503 A.2d 146 (1986); see also State v. Shine, 193 Conn. 632, 644-45, 479 A.2d 218 (1984); State v. Johnson, 185 Conn. 163, 167-69, 440 A.2d 858 (1981), aff'd, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983); State v. Vasquez, 182 Conn. 242, 246-48, 438 A.2d 424 (1980).

Upon review of the charge as a whole, we find that it clearly delineated the state's burden of proof regarding each and every element of the crime of kidnapping in the first degree, including intent, and that any possible confusion engendered by the challenged portion was overcome by other instructions. The trial court instructed the jury on the afternoon of...

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