State v. Paolella
| Decision Date | 27 June 1989 |
| Docket Number | No. 13445,13445 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. Joseph PAOLELLA. |
Temmy Ann Pieszak, Asst. Public Defender, for appellant (defendant).
Judith Rossi, Asst. State's Atty., with whom, on the brief, was Michael Dearington, State's Atty., for appellee (State).
Before PETERS, C.J., and SHEA, CALLAHAN, GLASS and HULL, JJ.
The defendant, Joseph Paolella, was convicted after a trial to the court 1 of kidnapping in the second degree with a firearm in violation of General Statutes § 53a-94a 2 and assault in the third degree in violation of General Statutes § 53a-61(a)(1). 3 The trial court sentenced the defendant to fifteen years imprisonment on the kidnapping charge, suspended after eight years and five years probation. The defendant was also sentenced to one year on the assault charge to run concurrently with the kidnapping sentence. On appeal, the defendant claims that there was insufficient evidence to support a conviction of kidnapping in the second degree with a firearm. He also argues that the trial court erred when it: (1) exempted the complaining witness from its sequestration order thereby denying him his constitutional right to a fair trial; and (2) concluded that his eight year old son had been given an oath and was competent to testify, thereby denying him due process and his right to a fair trial. We find no error.
The facts found by the trial court are as follows. The defendant and the complainant were married in May, 1978. Three children were born to them during their marriage. In April, 1986, the couple agreed to be divorced because of marital difficulties. During that same month, the complainant moved herself, her children, and a niece who had been living with the family, out of the couple's marital home in North Haven. Shortly thereafter, the defendant filed a divorce action, notice of which was served on the complainant while she was staying with a friend in Meriden.
After a few weeks, the complainant moved back into the marital home based on her belief that the defendant would move out. At this time the defendant expressed his desire to drop the divorce action. The complainant, still desiring to terminate the marriage, filed a cross complaint for divorce. After the defendant refused to leave the marital home, the complainant left again, this time taking the children to a battered women's shelter in New London. In May, 1986, the complainant obtained several restraining orders against the defendant prohibiting him, inter alia, from entering the marital home. Thereafter, when the defendant moved out, she moved back in with the children.
On May 24, 1986, the complainant allowed the defendant to stay at the house with the children while she went out for the night with her boyfriend. When she returned home the following day, the defendant left the house amicably. Shortly thereafter, however, he returned carrying a rifle and forced his way inside. When the complainant ordered him to leave, the defendant forced their son, J, out of the house and into the garage. The complainant tried to call her boyfriend, but was unable to do so because the defendant had disconnected the phone. She then went and retrieved J from the garage, whereupon the defendant followed her into the house and the two engaged in a loud argument. During the course of the argument, the complainant tried to escape from the house through both the doors and windows; however, the defendant forcibly prevented her from doing so. When she attempted to use the phone again, the defendant hit her with it. Still holding his rifle, the defendant then grabbed the complainant, hit her, and pushed her against a wall with such force that her head and heel went through the wall. J, who had been observing the fight between his parents, attempted to take the rifle away from his father and stop the fight; the defendant, however, retained control of the weapon and ordered the child to go upstairs.
Carrying the rifle, the defendant dragged the complainant by her hair down the stairs to the basement, where he pointed the rifle at her head and threatened to kill her. He then tied her wrists and legs to his weightlifting bench with a telephone cord while he berated her and called her names. When the defendant began to fondle her breasts, the complainant yelled, at which point the defendant gagged her with a sock. After a struggle, the complainant was able to loosen the bonds around her wrists, only to have the defendant tighten them again. The defendant then untied the complainant's legs, removed her pants, retied her legs above her head to the bar over the weight bench, and had sexual intercourse with her. During this incident, J had crept downstairs into the basement. Although he did not see his father sexually assaulting his mother, he did see her tied to the bench, half-naked, crying, with a gag in her mouth.
After further berating the complainant, the defendant untied her, removed her gag, and dressed her. The defendant then told the complainant that he would go to a local mental health center to avoid going to jail for his actions. Carrying his rifle, the defendant took the complainant by the arm, back up the stairs and ordered her to sit at the kitchen table, where she eventually fell asleep. The complainant awoke the next morning at the kitchen table to find the defendant sitting across from her still holding the rifle. Immediately after she awoke the defendant began arguing with the complainant and when she attempted to escape from the house he pushed her to the floor. The complainant, while on the floor, yelled to her five year old daughter to run to a neighbor's house and tell the neighbor that "her Daddy [was] hitting [her Mom]." The daughter apparently went to the neighbor's house, but, finding no one there, she returned home. Later in the morning, the defendant sent J to the store for cigarettes while he held the rest of the family at gunpoint in the corner of the living room. The defendant told the boy that "if he said anything [while he was at the store about what was going on at the house, the defendant] would shoot [his mother]."
Eventually the defendant repaired the telephone and called his mother to ask her to come and get the children. While the children were getting into their grandmother's car, the defendant forced the complainant at gunpoint into her own car, which he then drove to the parking lot of the Connecticut Mental Health Center where he freed her. Upon her release, the complainant went to the emergency room of a nearby hospital where she told medical personnel that she had been raped by the defendant. An examination of the complainant revealed multiple injuries, including bilateral circumferential abrasions on her wrists and ankles, and fresh bruises on her head, legs and right hip. The defendant surrendered himself at the mental health center and was later taken into custody by the police.
On appeal, the defendant argues that the trial court's judgment of guilty of kidnapping in the second degree with a firearm, in violation of § 53a-94a, was error because the evidence presented by the state at trial did not demonstrate that the complainant was "abducted" as is required by that statute. He claims that at best the evidence supports a conviction of the lesser offense of unlawful restraint, in violation of § 53a-96 4, which merely requires the state to prove that he "restrained" the complainant. 5
"Abduct" and "restrain" are defined in General Statutes § 53a-91. Section 53a-91(1) states, in relevant part, that " '[r]estrain' means to restrict a person's movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where restriction commences or in a place to which he has been moved, without consent." "Abduct" is defined in § 53a-91(2) as "restrain[ing] a person with intent to prevent his liberation by either (a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use physical force or intimidation." Relying on the definition of restraint in § 53a-91(1) which reads "interfere substantially with his liberty," the defendant claims that one can be found to have restrained another person if he prevents that person from freeing himself. Because the definition of abduction in § 53a-91(2) requires in addition that the accused "prevent [the victim's] liberation," the defendant claims that one can be found to abduct another person only if he prevents third parties from rescuing the victim. Accordingly, the defendant contends that in order for the court to conclude that he abducted the complainant and thereby find him guilty of kidnapping under § 53a-94a, it was necessary for the state to prove beyond a reasonable doubt that he intended to prevent both the complainant's self-liberation and her liberation by third parties.
Even if we were to adopt the defendant's somewhat strained interpretation of the definition of "abduct," we conclude that the evidence on the record reveals that the defendant intended both to restrain the complainant and to prevent her liberation by outside forces and, therefore, his conviction of kidnapping in the second degree with a firearm in violation of § 53a-94a was not error. According to the testimony at trial, the defendant intended to prevent the complainant from freeing herself when he repeatedly stopped her from leaving the house when she attempted to do so; tied her up, so that she could not escape, prior to sexually assaulting her; and held her at gunpoint on several occasions and threatened to kill her. The evidence shows further that the defendant prevented the complainant's liberation by third parties when he disconnected the telephone, thereby obviating the possibility of incoming and...
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