State v. Preyer

• Decision Date: 31 December 1985
• Citation: 502 A.2d 858,198 Conn. 190
• Parties: STATE of Connecticut v. William PREYER.
• Court: Connecticut Supreme Court

Page 858

502 A.2d 858

198 Conn. 190

STATE of Connecticut v. William PREYER.

Supreme Court of Connecticut.

Argued Nov. 14, 1985. Decided Dec. 31, 1985.

Katherine C. Callahan, Hartford, with whom were Joette Katz, Public Defender, and Kent Drager, Asst. Public Defender, for appellant (defendant).

James G. Clark, Deputy Asst. State's Atty., with whom, on brief, were Eugene J. Callahan, State's Atty., and Carl Schuman, Asst. State's Atty., for appellee (State).

Before PETERS, C.J., and HEALEY, SHEA, DANNEHY and SANTANIELLO, JJ.

PETERS, Chief Justice.

The principal issue in this case is the propriety of an instruction to the jury that cohabitation was not a defense to the crime of sexual assault. The defendant, William Preyer, appeals from a judgment sentencing him to a term of eight years imprisonment upon his conviction, after a trial to a jury, of sexual assault in the first degree in violation of General Statutes § 53a-70(a), ¹ of kidnapping in the second degree in violation of General Statutes § 53a-94 ² and of assault in the third degree in violation of General Statutes § 53a-61. ³ We find error only in the conviction for sexual assault in the first degree.

The jury could reasonably have found the following facts. The defendant had been living with the victim in her Stamford apartment for several months when, on December 28, 1981, they had a heated argument resulting in a call to the police and, upon their intervention, a request for the defendant to leave. Although the defendant then left peaceably, the victim, afraid that he might return, spent the night and the next day at a neighbor's apartment. That afternoon, on December 29, the victim was awaiting the visit of a friend with whom she was planning to attend a class at the YWCA. The friend arrived, unexpectedly accompanied by the defendant and his cousin. The defendant forcibly prevented the victim from telephoning the police as she had been instructed by them the previous day. After repeatedly hitting the victim, the defendant forced her to leave the apartment and to go with him to the street and there to enter a parked Toyota owned by the victim for which the defendant had a set of keys. The defendant drove the car to a secluded area of Dyke Park.

At the park, the defendant dragged the victim out of the car, threw her on the ground, punched her, pushed her into the car and threw a rock at her which hit her in the head. The defendant then pulled the victim back into the car, tore her clothes and ordered her to undress. Once the victim was completely nude, the defendant forced her to spread her legs and squeezed her vagina with a pair of pliers with resulting trauma to the victim's genitalia. The victim was able to escape by running nude out of the park to a nearby apartment house on Elm Cross Road, where the police were called. The victim was then taken to Stamford Hospital, where she was observed to have cuts, scrapes, contusions and injuries to her genitalia.

The defendant was arrested that same evening in Dyke Park. He had himself directed the police to the Toyota, which was subsequently found to contain a bundle of female clothing, a bracelet, a pair of pliers and a rock containing a blood stain.

At the trial before the jury, the defendant expressly offered two alternate defenses, a lack of the requisite intent on his part, and consent on the part of the victim. On appeal from the judgment against him, the defendant raises three issues concerning his convictions for the crimes of sexual assault, kidnapping and assault. He claims that the trial court erred: (1) in instructing the jury that the affirmative defense of cohabitation had no bearing as a defense to the charge of sexual assault in the first degree; (2) in instructing on sexual assault under a different section of the general statutes from that with which he had been charged in the information; and (3) in restricting the defendant's cross-examination of the victim regarding her prior sexual activities with the defendant. Because we find error on the first claim, we need not consider the second, although we will address the third.

The defendant's first claim of error is that the trial court erred in its instruction about a defense applicable to the crime of sexual assault, under General Statutes § 53a-70, with which he was charged. By virtue of General Statutes § 53a-67(b), ⁴ cohabitation is an affirmative defense to this charge of sexual assault. Cohabitation is not a defense to a charge of sexual assault under § 53a-70b, ⁵ but §§ 53a-70 and 53a-70b describe crimes that are statutorily separate and distinct.

At the trial, the defendant introduced evidence relevant to a defense of cohabitation. The victim testified that she and the defendant had begun dating in August of 1981 and that he had moved into her apartment, by mutual consent, in October of that year. The couple had lived together in that apartment from October to late December. The defendant had kept his clothes there, had been given a set of keys to the victim's Toyota, had driven the victim to and from work on a regular basis, and had shared in the care of the victim's son. The victim and the defendant had frequently socialized with members of the defendant's family and with the victim's girl friend. This evidence, as the state concedes in its brief to this court, would have been sufficient to present the cohabitation question to the jury if the defendant had requested a proper charge.

The defendant failed to request a charge on cohabitation. The trial court, after explaining the statutory requirement of proof of sexual intercourse, charged the defense of cohabitation out of the case. The court told the jury: "[Formerly if] there was a defense that was raised concerning cohabitation ... this statute would not be applicable. [Formerly if] two persons who ... though not married to one another were living together by mutual consent, and holding themselves out as man and wife, and they were living together as man and wife, and the relationship of this living together as man and wife included the many facets of married life, in addition to sexual relations ... [there was an assumption] of marital rights and duties, and obligations which are usually manifested by married people including, but not necessarily dependent on, sexual relations. The legislature has, however, changed this statute. This statute is applicable to married persons or to persons who cohabitate together. Now, there is evidence of a previous relationship between the defendant and the victim in this case, and that evidence and that testimony you will give such weight, and such credibility as you believe appropriate. There was also evidence that the parties broke up on the night before this particular incident, or at least separated, and [the victim] did not return to her apartment. At any rate, the relationship between the parties beforehand, whether in your mind is equivalent of cohabitation or not, has no bearing as a defense to this particular charge. It might have a bearing with regard to questions of consent, questions of veracity, how much weight, or truth or belief you will give to it." (Emphasis added.) The defendant took no exception to this instruction when it was given.

It is clear that the trial court's instruction on cohabitation was incorrect. While it might have been logical for the legislature, upon enacting § 53a-70b, to amend § 53a-67(b) to exclude cohabitation as an affirmative defense whenever there is an accusation of sexual assault in the first degree, the legislature chose not to do so. Instead, the legislature expressly limited its repeal of the cohabitation defense to those defendants who were accused of having violated § 53a-70b itself. ⁶ The state concedes that the trial court's charge was incorrect.

The issue before us is the proper resolution of the defendant's claim that, even in the absence of a request to charge or an exception to the charge as given, the trial court's incorrect instruction requires us to set aside the judgment against him. This claim is presented in alternate versions. The more sweeping claim urges us to hold that a trial court always has an independent obligation, as a matter of law, to charge on any theory of defense for which there is a foundation in the evidence. The narrower claim urges us to hold that a trial court, even absent such an independent obligation, having once embarked on an instruction on a theory of defense, has a duty not to misstate the statutes that govern the defense.

There is no basis, in the law of this state, for the defendant's broad claim that a trial court has an independent obligation to instruct the jury on the affirmative defense of cohabitation if the evidence at trial would suffice to support such a charge. In the absence of a timely request or exception, failure to charge on an affirmative defense is reviewable as an exceptional circumstance within the doctrine of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), only when the defendant can demonstrate that he "has clearly been deprived of a fundamental constitutional right and a fair trial," ⁷ or under Practice Book § 3063 ⁸ as plain error. While the constitutional law of due process is implicated by a trial court's failure to instruct the jury on the essential elements of the offense on which the conviction rests; Screws v. United States, 325 U.S. 91, 107, 65 S.Ct. 1031, 1038, 89 L.Ed.2d 1495 (1945); State v. Gabriel, 192 Conn. 405, 413-14, 473 A.2d 300 (1984); State v. Kurvin, 186 Conn. 555, 561, 442 A.2d 1327 (1982); we have in the past found no constitutional infirmity in failure to charge on such defenses as entrapment; State v. Devino, 195 Conn. 70, 73, 485 A.2d 1302 (1985); extreme emotional disturbance; State v. Jacobowitz, 194 Conn. 408, 411-12, 480 A.2d 557 (1984); or alibi. State v. Parham, 174 Conn. 500, 509-11, 391 A.2d 148 (1978). Nothing in the circumstances of this case suggests...