State v. Pereira

Decision Date03 September 2002
Docket Number(AC 20490)
Citation72 Conn. App. 107,806 A.2d 51
CourtConnecticut Court of Appeals
PartiesSTATE OF CONNECTICUT v. AUTILIO A. PEREIRA.

Dranginis, West and Daly, Js.1Robert P. Pickering, with whom, on the brief, was John M. Cicilline, pro hac vice, for the appellant (defendant).

Michele C. Lukban, assistant state's attorney, with whom, on the brief, were Kevin T. Kane, state's attorney, Robert M. Spector, former assistant state's attorney, and Stephen M. Carney, assistant state's attorney, for the appellee (state).

Opinion

WEST, J.

The defendant, Autilio A. Pereira, appeals from the judgment of conviction, rendered after a jury trial, of five counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1)2 and five counts of risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21.3 On appeal, the defendant claims that (1) the trial court improperly (a) instructed the jury in violation of his state and federal constitutional rights and (b) admitted prejudicial evidence that deprived him of a fair trial, and (2) the prosecutor's closing argument to the jury deprived the defendant of a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. During the summer of 1997, when the events that form the basis of the defendant's conviction took place, the victim was fourteen years old and the defendant was thirty-two years old.4 The two lived in the same apartment building in Norwich, he with his family on the second floor, and she with her mother and two sisters on the third floor. They frequently saw one another in the hallways and would stop and talk. Residents of the apartment complex knew the defendant and that he owned a silver colored Porsche automobile.

After the school year ended in June, 1997, the defendant gave the victim his pager number so that she could contact him. When the victim paged the defendant, he would return her telephone call and they would talk. One evening, the defendant suggested that the victim go for a ride with him. Because it would not look right for the victim to be seen getting into the Porsche with him, the defendant arranged to meet the victim around a corner at the far side of the apartment building. Once the victim was in the vehicle, the defendant drove to a side street and parked the vehicle.

The defendant instructed the victim not to be nervous around him and that he wanted her to be comfortable. He began to kiss her. Then the defendant unbuttoned his pants and asked the victim if she wanted to lick his penis. She placed the defendant's penis in her mouth for approximately one minute, but stopped because she did not like the taste. The two returned to the place where they had met, and the defendant told the victim he wanted to date her. He said that it did not matter that she was young. The defendant told the victim to page him when they could talk.

A few days later, the victim paged the defendant and informed him that they could meet because her mother was out. At approximately 7 p.m., they met where they had done so previously and went in the Porsche to a nearby park. Again, they kissed and the defendant asked the victim to perform oral sex on him. She complied.

Rain fell on the morning of July 24, 1997. Due to the inclement weather, the victim did not report to her summer job. She knew that the defendant, who poured concrete for a living, would not have to go to his job and paged him. In response, the defendant telephoned the victim, asked if anyone was home and if he could come upstairs. The defendant went to the victim's apartment at approximately 11 a.m. The victim sat on the defendant's lap in the living room for about five minutes. Thereafter they went into the victim's bedroom, sat on the bed and engaged in foreplay. The victim was uncomfortable about the situation, but the defendant reassured her. The defendant performed oral sex on the victim and then engaged in intercourse. When the victim tried to stop the defendant, he moved her hand and calmed her. Later that day, when they saw one another, the defendant told the victim he wanted her to call him. He told her that it was not a good idea to talk to one another where others could observe them.

The following Saturday morning, the victim paged the defendant and told him to come to her apartment because she was alone. The defendant went upstairs immediately, and the two went directly to the victim's bedroom and engaged in sexual intercourse. The defendant left shortly thereafter because his wife was expected home soon.

On or about August 2, 1997, the victim paged the defendant at night. They arranged to meet, but not where they had done so previously. One of the victim's friends waited with her on North Street, near the entrance to the apartment complex. The friend knew that the defendant was coming to meet the victim. The defendant arrived in his wife's red motor vehicle because his Porsche was not working. They went to a parking lot where the defendant removed a child's car seat from the rear passenger seat, and the two engaged in sexual intercourse. The defendant asked the victim whether she had told her friends about their relationship and warned her that they could both get into trouble if she did.

In fact, the victim had confided in her friends. On the evening of August 10, 1997, the defendant's wife telephoned the victim's mother and asked if she and the victim would come to her apartment. One of the victim's friends had told the defendant's wife that the defendant and the victim were having an affair. The defendant's wife confronted the victim. The victim denied the affair. When she returned to her apartment, the victim's mother telephone the police. The victim denied the affair to the responding officer. She later asserted that she believed that she was in love with the defendant and wanted to protect him.

The next day, the victim's mother informed her that they were going to a hospital so that the victim could be examined. The victim knew that a pelvic examination would reveal that she had engaged in sexual intercourse. On the way to the hospital, her mother again asked the victim whether she was having an affair with the defendant. In response, the victim admitted that she was. The victim was examined by an emergency room physician, who observed that the victim's hymen had been perforated.

The victim went to live with her father in a different community. The victim engaged in counseling with a licensed clinical psychologist from September, 1997, through June, 1998. The victim disclosed her sexual encounters with the defendant to her therapist. Between September, 1998, and June, 1999, the victim told a counselor at a school based health care center of the defendant's sexual behavior toward her. Additional facts will be discussed where necessary.

I INSTRUCTIONAL CLAIMS

The defendant claims that the court's instructions to the jury violated his rights under the fifth, sixth and fourteenth amendments to the United States constitution, and article first, § 8, of the constitution of Connecticut by (1) shifting the burden of proof to him and impinging on the presumption of innocence, and (2) failing to charge on the victim's delay in reporting the incidents.

We must first consider the state's assertion that the defendant's instructional claims are not reviewable because they were not preserved at trial. The defendant contends that he preserved his claims properly. "A party may preserve for appeal a claim that a jury instruction was improper either by submitting a written request to charge or by taking an exception to the charge as given. Practice Book § 16-20. If counsel follows the latter course, he or she must `state distinctly the matter objected to and the ground of objection. . . .' Id." Pestey v. Cushman, 259 Conn. 345, 372-73, 788 A.2d 496 (2002). "The purpose of the rule is to alert the court to any claims of error while there is still an opportunity for correction in order to avoid the economic waste and increased court congestion caused by unnecessary retrials." (Internal quotation marks omitted.) State v. Miller, 186 Conn. 654, 658, 443 A.2d 906 (1982).

A

The defendant's claim that the court improperly shifted the burden of proof and impinged on his presumption of innocence is based on the following portion of the charge: "If a defendant should attempt to make false statements respecting himself and his conduct concerning the matter on trial, you may consider this evidence tending to show a guilty connection by the defendant with the crime charged." (Emphasis added.) Defense counsel objected to the cited portion of the instruction, stating that the court had "indicated . . . that if the defendant should attempt to make false statements respecting himself or his conduct concerning the matter of trial, you should consider this evidence tending to show a guilty — a guilty connection by the defendant with the crime charged. This section, on the testimony of the defendant, basically implies, gives some sort of added scrutiny to the defendant that shouldn't be there. He's presumed innocent. He's presumed innocent on the [witness] stand. There should be no special charges as to him. I point out that the court did not make any similar statements as to the victim, where credibility is an important thing, and she's not on trial. He's presumed innocent, and therefore there should not be, in my opinion, anything to say."

In his brief to this court, the defendant has argued that the court's use of the term "guilty connection" was improper because it "singled out his testimony, reduced the state's burden of proof and improperly infringed on [his] constitutional right to testify in his defense." We agree with the state that the defendant did not preserve his claim that the court's instruction shifted the burden of proof or infringed on...

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  • State v. Samuels
    • United States
    • Connecticut Court of Appeals
    • 25 Marzo 2003
    ...claims. We note at this point that evidentiary claims are reviewed pursuant to an abuse of discretion standard. State v. Pereira, 72 Conn. App. 107, 117, 806 A.2d 51 (2002), cert. denied, 262 Conn. 931, 815 A.2d 135 (2003). Moreover, "[e]videntiary rulings will be overturned on appeal only ......
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    ...State v. Barry A., 145 Conn.App. 582, 599, 76 A.3d 211, cert. denied, 310 Conn. 936, 79 A.3d 889 (2013); see also State v. Pereira, 72 Conn.App. 107, 126, 806 A.2d 51 (2002) (“This court has held that it is not improper for a prosecutor to offer an opinion when commenting on evidence that s......
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