State v. Saunders

• Decision Date: 19 May 2009
• Docket Number: No. 28596.,28596.
• Citation: 114 Conn.App. 493,969 A.2d 868
• Parties: STATE of Connecticut v. Willie A. SAUNDERS.
• Court: Connecticut Court of Appeals

969 A.2d 868

114 Conn.App. 493

STATE of Connecticut v. Willie A. SAUNDERS.

No. 28596.

Appellate Court of Connecticut.

Argued February 4, 2009.

Decided May 19, 2009.

Arthur L. Ledford, special public defender, for the appellant (defendant).

Melissa Patterson, deputy assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, Amy Sedensky, senior assistant state's attorney, and Don E. Therkildsen, Jr., assistant state's attorney, for the appellee (state).

HARPER, BEACH and WEST, Js.

WEST, J.

The defendant, Willie A. Saunders, 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)(2)¹ and risk of injury to a child in violation of General Statutes § 53-21(a)(2).² On appeal, the defendant claims that (1) the state adduced insufficient evidence to sustain his conviction, (2) the trial court improperly allowed the state to comment on missing witnesses during final argument and (3) the state engaged in prosecutorial impropriety during final argument and, therefore, deprived him of his due process right to a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On April 20, 2003, Easter Sunday, the victim,³ who was ten years old at the time, and several members of her family, as part of their living arrangements, were staying with the defendant's sister, Ella Saunders, in her apartment. Also present, among others, were Walter Saunders, the defendant's brother, who was dating the victim's mother, the defendant's mother, Maggie Saunders, the defendant, and Ella Saunders' children, Asia, Nisa, Delvin and Devante. The sleeping arrangements were such that the victim shared a room with her five year old brother, C, and Asia. On that night, the victim shared a twin bed with her brother; he slept at the head and she at the foot of the bed, while Asia slept on the floor. The victim slept on her stomach, still dressed in her Easter dress with her undergarments and shoes on. At some point, the defendant entered the room and shook the victim's arm, telling her that her mother wanted her. The victim feigned sleep and ignored the defendant, who then went into the hall outside the room. Once there, the defendant had a brief conversation with someone who then went downstairs.⁴

The defendant reentered the room and approached the victim, who was still feigning sleep, face down on the bed. He pulled down her undergarments and left the room again. He soon returned and removed C from the twin bed he was sharing with the victim and placed him on the floor. C did not awaken. The defendant then inserted his penis into the victim's vagina. The defendant had lubricated his penis with shampoo that burned the victim's vagina. The defendant then tried to insert his penis fully into the victim's vagina for five minutes to no avail. During the assault, the victim continued to feign sleep in fear that had she not, the defendant would have physically assaulted her. After ending his efforts, the defendant pulled the victim's undergarments back up, placed C back on the bed and left the room. Neither of the children sharing the room with the victim awoke during the incident. The next morning, the victim awoke before anyone in the house and went into the bathroom that was located next to the bedroom she slept in. The victim saw a bottle of shampoo placed on the toilet and started to cry. The victim did not immediately report the assault.

On October 29, 2003, the victim was at home with C and her older brother, D, while their mother was at work.⁵ She and D were watching the movie "The Color Purple" on television. In the movie, there is a scene in which a character is raped by her father and becomes pregnant. After viewing the movie, the victim had a violent outburst in which she destroyed several glass figurines and other items she kept in her bedroom. D intervened, asking the victim what was wrong with her. The victim told D that the defendant had raped her. D then called their mother and reported to her what the victim had told him. The victim's mother came home and called the police. Joann Sodan, a police officer, arrived at the scene and interviewed the victim. The victim reported to Sodan that the defendant had raped her on Easter Sunday, 2003. She also told Sodan that during the assault, she lay face down on her stomach. Subsequently, the victim picked the defendant's photograph out of a photographic array at the police department. The defendant was charged by substitute long form information with sexual assault in the first degree and risk of injury to a child. After a trial to the jury, the defendant was found guilty of both crimes. The court imposed a total effective sentence of ten years imprisonment followed by fifteen years of special parole. This appeal followed.

I

The defendant claims first that there was insufficient evidence to support his conviction of both charges because the state failed to prove beyond a reasonable doubt that he was the perpetrator of the assault. In other words, the defendant claims that by itself, the victim's identification of him as the perpetrator, under the circumstances, fails to establish beyond a reasonable doubt his identity as the perpetrator. We disagree.

"The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt....

"It is within the province of the jury to draw reasonable and logical inferences from the facts proven.... The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. ... Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable....

"[T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence ... established guilt beyond a reasonable doubt.... Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.... We do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record.... Furthermore, [i]n our review of the evidence to determine its sufficiency, we do not look at the evidence to see whether it supports the defendant's innocence.... Instead, our focus is whether there is a reasonable view of the evidence that supports the [trier's] verdict of guilty." (Citations omitted; internal quotation marks omitted.) State v. Fleming, 111 Conn.App. 337, 342-43, 958 A.2d 1271 (2008).

The defendant claims essentially that the victim's identification of him as the perpetrator of the assault against her is insufficient as a matter of law to support his conviction of these crimes. He argues that because there was no physical evidence or any corroborating witness and the assault took place in a dark room, just after the victim woke up and while the victim remained face down feigning sleep, the victim lacked the opportunity to observe him and, thus, accurately to identify him as the person who assaulted her. The defendant bolsters this claim by arguing that the assault took place in a room with two sleeping children, in a house full of people just after the victim heard the defendant converse with another party in the hallway and that it is just as likely that this other person committed the assault rather than the defendant. Moreover, the defendant contends, the victim's identification is based on her conclusion that it was the defendant who assaulted her as opposed to what she actually saw.

Although the defendant couches his argument in terms of insufficiency of the evidence, he confuses however, the issues of sufficiency and credibility. As just noted, "[o]ur task is to view the evidence in the light most favorable to sustaining the verdict before determining if the jury reasonably could have concluded that such evidence established guilt beyond a reasonable doubt.... We assume that the jury credited the evidence that supports the conviction if it could reasonably have done so. Questions of whether to believe or to disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses.... We must defer to the trier of fact's assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude." (Citation omitted; internal quotation marks omitted.) State v. Osoria, 86 Conn. App. 507, 514-15, 861 A.2d 1207 (2004), cert. denied, 273 Conn. 910, 870 A.2d 1082 (2005).

We note, that although "[i]t is black letter law that in any criminal prosecution, the state bears the burden of proving beyond a reasonable doubt the defendant's identity as one of the perpetrators of the crime charged"; (internal quotation marks omitted) State v. Fleming, supra, 111 Conn.App. at 343, 958 A.2d 1271; "it is for the trier of fact to determine the weight to be given [an] identification." State v. Morgan, 274 Conn. 790, 802, 877 A.2d 739 (2005). Although the victim did not report the assault immediately, the testimony reveals that she consistently reported—to family, law enforcement and an examining physician—that it was the defendant who assaulted her. Moreover, she chose the defendant from a police photographic array...