State v. Paolella

• Decision Date: 14 February 1989
• Docket Number: No. 13210,13210
• Citation: 210 Conn. 110,554 A.2d 702
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Joseph PAOLELLA.

Page 702

554 A.2d 702

210 Conn. 110

STATE of Connecticut v. Joseph PAOLELLA.

No. 13210.

Supreme Court of Connecticut.

Argued Nov. 1, 1988.

Decided Feb. 14, 1989.

Judith Rossi, Deputy Asst. State's Atty., with whom were Steven M. Sellers, Asst. State's Atty., and, on the brief, John J. Kelly, Chief State's Atty., and James G. Clark, Asst. State's Atty., for appellant (State).

Temmy Ann Pieszak, Asst. Public Defender, with whom, on the brief, was Joette Katz, Public Defender, for appellee (defendant).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, CALLAHAN, GLASS, COVELLO and HULL, JJ.

GLASS, Associate Justice.

In a substitute information filed on May 6, 1987, the defendant, Joseph Paolella, was charged with six criminal offenses. Counts one and two charged the defendant with kidnapping in the first degree with a firearm, in violation of General Statutes § 53a-92a(a), and kidnapping in the first degree, in violation of General Statutes § 53a-92(a)(2)(A). ¹ Counts three and four charged him with sexual assault in the first degree with a deadly weapon, in violation of General Statutes § 53a-70a(a), and sexual assault in the first degree, in violation of General Statutes § 53a-70(a). ² Counts five and six charged him with assault in the third degree, in violation of General Statutes § 53a-61(a)(1), ³ and carrying a dangerous weapon, in violation of General Statutes § 53-206. ⁴

The defendant waived a jury trial and was tried to the court. At the close of the state's case, the defendant made an oral motion for judgment of acquittal on all six counts. Over the state's objection, the trial court granted the defendant's motion with respect to the two counts charging him with first degree sexual assault and the count charging him with carrying a dangerous weapon. The state excepted to the trial court's granting of the defendant's motion. At the close of all the evidence, the trial court, pursuant to the state's request, dismissed with prejudice the two first degree sexual assault counts and the count of carrying a dangerous weapon, and

                granted the state's request for permission to appeal.   The state subsequently filed this appeal in the Appellate Court, claiming error in the trial court's granting of the defendant's motion for judgment of acquittal on the first degree sexual assault counts. 5  The appeal was transferred to this court pursuant to Practice Book § 4023.   We dismiss the appeal on the ground that double jeopardy bars review of the trial court's acquittal of the defendant
                

A

I

BACKGROUND FACTS

Our disposition of this case requires only a brief recapitulation of the background facts. Evidence presented during the state's case revealed that 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 as a result of marital difficulties. On two occasions during April and May, 1986, the complainant took the children and left the marital home in North Haven to stay elsewhere because of her deteriorating relationship with the defendant. After leaving their North Haven home the second time, the complainant returned when the defendant moved out to stay with relatives. During this period, the defendant filed a divorce action, notice of which was served on the complainant. When he later intimated that he wished to withdraw the divorce action, the complainant filed a cross complaint for divorce. In addition, in May, 1986, the complainant obtained restraining orders ordering the defendant to refrain from harassing or assaulting her.

The several charges against the defendant arose from incidents alleged to have taken place on May 25 and 26, 1986. The state presented evidence that the defendant had sexually assaulted the complainant on May 25, 1986 in the North Haven marital home. Ultimately, the trial court found the defendant not guilty of count two, kidnapping in the first degree, but found him guilty of kidnapping in the second degree with a firearm, in violation of General Statutes § 53a-94a(a), ⁶ a lesser included offense of count one, and count five, assault in the third degree. ⁷ The defendant's convictions on those charges are not at issue in this appeal.

B FACTS PERTAINING TO THE STATE'S APPEAL

In making his oral motion for judgment of acquittal, pursuant to Practice Book § 884, ⁸ the defendant argued that he was exempt from prosecution for violating §§ 53a-70(a) and 53a-70a(a) because, under General Statutes § 53a-65(2), ⁹ the definition of "sexual intercourse" applicable to those offenses is expressly limited to persons who are not married to each other. The state claimed, however, that the marital exemption was inapplicable because the parties no longer maintained a "viable" marriage despite their continued legal marital status, and that the marital exemption of § 53a-65(2) conceivably violated equal protection guarantees. In granting the defendant's motion for judgment of acquittal on the two first degree sexual assault counts, the trial court stated: "I would make it quite clear, however, on the record, that the Court['s] granting of [the defendant's] Motion for Judgment of Acquittal ... is based on the fact that the evidence demonstrates quite clearly that these two people were married on [the] day [of the alleged assault]. Certainly there is ample evidence at this point for the court to find that the other, the basic elements of the rape have been proven. The basis of the ruling as I indicated is the opinion of the Court that the spousal exemption is valid and the evidence indicates clearly ... that these parties were still legally married on that day, and it is for that reason I am granting the Judgment of Acquittal as to these two counts."

The state excepted to the court's ruling and requested permission to appeal. It argued that an appeal was not barred by double jeopardy because the question of the marital exemption's applicability was "simply a legal question." The defendant, however, claimed that an appeal was improper because the trial court's ruling was based on a flaw in the state's evidence. The trial court reserved a ruling on the state's request for permission to appeal, but stated: "I'm not sure I would call it an evidentiary failing. What I did is grant [the defendant's] Motion for Judgment of Acquittal because I believe the statutory exemption ... is clear and ... has been proven, the fact that they are legally married, and I did not accept [the state's] ... legal argument that the exemption does not apply to people who are not married in fact.... I have no hesitation in finding [as] a fact that on the date of this offense these people were not married in fact. They were married in law but not in fact."

When the trial concluded on May 29, 1987, the trial court granted the state's motion to dismiss with prejudice the first degree sexual assault counts, and also granted the state's request to appeal. The judgment, filed on May 29, indicated that the defendant was acquitted of the sexual assault counts. Pursuant to the state's motion, however, the judgment file subsequently was amended to indicate that the trial court, on May 29, 1987, had dismissed with prejudice the first degree sexual assault counts and had granted the state permission to appeal. On June 6, 1987, the state filed its appeal, indicating that it was appealing from the judgment, rendered on May 29, 1987, acquitting the defendant of the first degree sexual assault counts.

After filing its appeal, the state filed two questions seeking the trial court's articulation pertaining to the disposition of the first degree sexual assault counts. To the first question, "[d]id the trial court evaluate the state's evidence on the elements of §§ 53a-70 and 53a-70a, and acquit the defendant on those counts, by making a determination of factual innocence," the trial court responded, "[y]es." (Emphasis added.) To the second question, "[d]id the trial court dismiss the sexual assault counts on the legal ground that the marital exemption barred prosecution," the trial court responded, "[n]o."

On appeal, the state reiterates the claims made at trial (1) that the marital exemption of § 53a-65(2) does not apply to persons who are no longer married "in fact," whether or not they are still legally married, and (2) that the marital exemption violates equal protection guarantees of the federal and Connecticut constitutions by denying to female victims married to their assailants the same protections accorded female victims not married to their assailants. Further, the state asserts that its appeal is proper because the trial court's disposition of the first degree sexual assault counts turned solely on the legal question of the applicability of § 53a-65(2). The defendant asserts two jurisdictional defects to the state's appeal, claiming (1) that the state has not appealed from a final judgment, and (2) that double jeopardy bars appellate review of the trial court's judgment of acquittal. We conclude that there was a final judgment and that the judgment was a true acquittal for double jeopardy purposes, therefore barring us from reviewing the state's claims.

II

The defendant first claims that the state improperly appealed from a "partial judgment." He argues that the state sought to appeal from the trial court's action granting the motion for judgment of acquittal made at the close of the state's case. He further asserts that because the appeal was not taken from the imposition of a sentence, nor from an appealable interlocutory order; see State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983); the appeal was not taken from a "final judgment," and, therefore, must be dismissed. The state maintains that its appeal is from the trial court's judgment of May 29, 1987, dismissing with prejudice the first degree sexual assault counts. The state argues that the trial court had the authority to modify its prior action...