State v. Reynolds, No. 29653.
| Decision Date | 08 December 2009 |
| Docket Number | No. 29653. |
| Citation | 118 Conn.App. 278,983 A.2d 874 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Mark REYNOLDS. |
Mary Beattie Schairer, special public defender, for the appellant (defendant).
James A. Killen, senior assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Cynthia S. Serafini, senior assistant state's attorney, for the appellee (state).
BISHOP, GRUENDEL and HARPER, Js.
The defendant, Mark Reynolds, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1), coercion in violation of General Statutes § 53a-192(a)(3) and unlawful restraint in the second degree in violation of General Statutes § 53a-96(a), as a lesser included offense of unlawful restraint in the first degree in violation of General Statutes § 53a-95(a).1 The defendant claims that (1) prosecutorial impropriety deprived him of a fair trial, (2) this court should exercise its supervisory powers and set aside his conviction because the prosecutor engaged in deliberate prosecutorial impropriety, (3) the court's jury instructions concerning sexual assault in the first degree misled the jury and (4) the evidence did not support the jury's guilty verdict as to the crime of coercion. We affirm the judgment of the trial court.
On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. In late February or early March, 2006, the victim was walking along a Waterbury street on a cold and windy morning. The defendant, who was operating an automobile on the street, drove near the victim and invited her to ride with him. The victim accepted his invitation. While the defendant drove the victim to her place of employment, he conversed with her about their shared interest in music. The defendant and the victim exchanged telephone numbers and, in the following days, amicably spoke to each other on the telephone.
About one week later, the victim accepted the defendant's invitation to accompany him to his apartment at 23 Eastwood Avenue in Waterbury. There, the defendant played a DVD related to the musical interests that he shared with the victim. During this encounter, the defendant kept trying to get close to the victim and encouraged her to spend more time with him. This flirtatious behavior caused the victim to feel uncomfortable, and, at her request, the defendant drove her home without incident.
Late the following day, March 13, 2006, the defendant called the victim on the telephone. During a conversation with the victim, the defendant informed her that he had photographs and a video of her and that these materials were of a sexual nature. The defendant said that he knew the victim was "a good girl" and that she would want to see these images of her. He said that he was trying to protect the victim, and that if he were a different type of person, he would not have told her about them.
At approximately 1 a.m. on March 14, 2006, the defendant picked up the victim at her home. The victim had asked the defendant to bring the images to her, but he did not do so, stating that she could see them at his apartment. The victim agreed to accompany the defendant to his apartment. Upon arriving at the defendant's apartment, the defendant elaborated as to the nature of the images but did not show them to the victim. The defendant told the victim that the images depicted her in a sexual act with a former boyfriend and that, if he so desired, he could profit from his possession of these images of her. The victim did not know anything about the photographs or the video.
Once in the apartment, the victim asked the defendant about the images, but those inquiries irritated him. The defendant told the victim that she was being selfish. He commented on her sexual relationship with a prior boyfriend and asked her why she was not engaging in sexual activities with him. The victim replied that she was not interested in a sexual relationship with the defendant. In response, the defendant threatened to distribute the images of the victim that he claimed to possess but did not show those images to the victim. The victim told the defendant,
The victim began to walk toward the door and leave the apartment, at which time the defendant's manner became far less friendly. The defendant positioned himself between the victim and the door and, in an aggressive tone that frightened the victim, instructed her to sit down. He pushed her onto a nearby bed. The defendant told the victim that she was selfish and that if he wanted to be with her sexually he could just "take it" from her. The defendant admonished the victim not to make him "get rough" with her and told her to remove her clothing. The victim complied. Afterward, the defendant removed his clothing, positioned himself on top of the victim and forcibly engaged in penile-vaginal intercourse with the victim.
After the assault ended, the defendant led the victim to a bathroom and instructed her to take a shower. After the victim showered, the defendant took a photograph of the victim. The victim dressed herself and asked the defendant to take her home. The defendant drove the victim home, during which time he asked the victim repeatedly to forgive him and not to report the incident to anyone.
After returning home, the victim spoke with a friend and told her that she had been raped. Later that day, the victim told her mother that she had been raped. The victim's mother notified the police, and the victim provided the police with a written statement. The victim also went to a local hospital, where a rape kit was administered. Additional facts will be set forth as necessary.
First, the defendant claims that prosecutorial impropriety during the state's examination of two witnesses deprived him of a fair trial. We disagree.
The following facts, as appear in the record, underlie the defendant's claim. On the first day of trial, outside of the presence of the jury, one of the defendant's attorneys raised an issue with the court concerning the contents of a written report that was prepared by a physician, Robert Kugler, who had examined the victim at the hospital. The defendant's attorney stated that, after obtaining the report from the state and having reviewed its contents, defense counsel was in the process of seeking an expert witness to testify with regard to the specific diagnosis that appeared in Kugler's report. Kugler had made a diagnosis of "sexual assault." The defendant's attorney also stated that he intended to object to the admissibility of the diagnosis. At that time, the court did not rule on the admissibility of that portion of the report but stated that § 7-3 of the Connecticut Code of Evidence2 regarding expert testimony on the ultimate issue to be determined by the jury applied.
Later that day, outside of the presence of the jury, the court revisited the issue and ruled that the diagnosis of sexual assault was inadmissible. The court stated, "I don't see how an expert could testify on direct examination, that is, a doctor, that this was rape." The prosecutor replied that she did not intend to elicit such a diagnosis from Kugler but intended to ask him about his physical findings described in the report. With regard to the diagnosis of sexual assault, the prosecutor stated, "clearly that's not a medical diagnosis, I don't believe." When the defendant's attorney indicated that he was still attempting to find an expert witness to challenge the validity of the diagnosis of sexual assault, the court reiterated that the diagnosis was inadmissible.
The next day, the defendant's attorney indicated that, in light of the court's ruling and depending on the manner in which Kugler explained his findings during his testimony, the defense "may not need an expert [witness]." Once again, the court referred to its ruling disallowing Kugler's diagnosis of sexual assault. In the presence of the jury, the state elicited testimony from Kugler during its case-in-chief. Kugler testified that he had examined the victim concerning her claim of sexual assault and that, as noted in his records, he had observed an abrasion and a small tear around the opening of her vagina. Kugler testified that his findings in this regard were unusual and were consistent with the victim's claim of penile penetration. The following colloquy then occurred:
At that point in the proceeding, the defendant's attorney objected, and the court excused the jury. The court, reminding Kugler that the question called for an answer of "yes or no," asked him if he had formed a diagnosis. Kugler replied in the affirmative. Concerning her line of inquiry, the prosecutor represented to the court that she had intended to ask Kugler to explain the basis of his diagnosis. Kugler replied that his diagnosis was based on the information provided to him by the victim. The following colloquy then occurred outside of the presence of the jury:
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