State v. Solek

• Decision Date: 02 October 2001
• Docket Number: (AC 20828)
• Citation: 66 Conn. App. 72,783 A.2d 1123
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. TIMOTHY J. SOLEK

66 Conn. App. 72

783 A.2d 1123

STATE OF CONNECTICUT v. TIMOTHY J. SOLEK

(AC 20828)

Appellate Court of Connecticut.

Argued May 31, 2001.

Officially released October 2, 2001.

Spear, Dranginis and Hennessy, JS. Lisa J. Steele, special public defender, for the appellant (defendant).

Susann E. Gill, senior assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and C. Robert Satti, Jr., senior assistant state's attorney, for the appellee (state).

Opinion

DRANGINIS, J.

The defendant, Timothy J. Solek, appeals from the trial court's judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes §§ 53a-54a and 53a-8, and sexual assault in the second degree in violation of General Statutes § 53a-71. On appeal, the defendant claims that (1) the evidence was insufficient to support the conviction of sexual assault in the second degree, (2) the court improperly failed to instruct the jury on manslaughter in the first degree and manslaughter in the second degree as lesser offenses included within the greater offense of murder, and (3) the court improperly instructed the jury to disregard certain testimony and criticized the defendant's counsel, thereby depriving the defendant of a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Late in the night of May 12, 1995, the defendant and Scott Smith, after an evening of drinking together, decided to go to the victim's apartment. The victim, a twenty-nine year old mentally disabled woman, was an acquaintance of theirs. At first, she was not interested in letting them in; however, after some persistence, they went inside. Once inside, the defendant drank beer despite the victim's protests. He continued to antagonize her and made fun of her. The two then began to argue and she ordered him out. The defendant then said, "f*** you bitch," and threatened that he "would tie her up and throw her in the closet and burn her." A pushing match ensued. Smith then got behind the victim and started choking her. Meanwhile, Smith yelled to the defendant to get a knife, but finding none, the defendant grabbed a metal can opener and stabbed her in her head with it. Because she still was fighting and screaming, the defendant grabbed a clothes iron with his shirt and hit her in the head with it. He then kicked her several times while she spit up blood.

The defendant then shut off the television with his shirt so as not to leave a fingerprint. He also locked the door. The defendant watched Smith remove the victim's pants and sanitary napkin, and perform cunnilingus on her, which, according to the defendant's written statement to the police, sexually aroused the defendant. He ordered Smith out of his way, and forcibly had vaginal and anal sex with the victim while Smith masturbated.

Finally, after some twenty minutes and after hearing an ambulance siren in the distance, Smith wanted to leave. The two threw some empty beer cans on the front lawn and left for the defendant's apartment. After Smith borrowed a clean pair of pants from the defendant and left, the defendant called the police "because I knew that I helped kill her, but I didn't kill her, I tried to stab her but it was self-defense." The defendant gave police a graphic and detailed written statement of the events.

Medical evidence offered at trial established that the cause of death was strangulation. It further indicated that the victim suffered several injuries to her face, including oval shaped lacerations and bruises in a triangular pattern consistent with a clothes iron, and bruising and lacerations in and around her vaginal area consistent with blunt force trauma.¹ Those injuries occurred either before or at about the same time as her death.

The defendant was arrested on May 14, 1995.² After a trial to a jury, the defendant was convicted of murder and sexual assault in the second degree; he was acquitted of felony murder, sexual assault in the first degree and capital felony. The defendant was sentenced to a total effective term of fifty-five years imprisonment. This appeal followed.

I

The defendant first claims that the evidence was insufficient to convict him of sexual assault in the second degree because the medical evidence established that the victim was already dead, and not merely unconscious, at the time of the assault.³ We disagree.

The defendant properly preserved his challenge to the sufficiency of the evidence to convict him of sexual assault in the second degree by timely excepting to the court's denial of his motion for a judgment of acquittal. See State v. Hufford, 205 Conn. 386, 397, 533 A.2d 866 (1987).

"In reviewing a sufficiency [of the evidence] claim, we 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.... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.... The scope of our factual inquiry on appeal is limited. This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict.... [T]he 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.... [I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury's function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Citations omitted; internal quotation marks omitted.) State v. White, 64 Conn. App. 126, 132-33, 779 A.2d 776, cert. denied, 258 Conn. 910, 782 A.2d 1251 (2001).

Pursuant to § 53a-71 (a), "[a] person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and ... (3) such other person is physically helpless...." General Statutes § 53a-65 (6) defines "physically helpless" as a person who is "unconscious or for any other reason is physically unable to communicate unwillingness to an act."

We conclude that the jury reasonably could have found that the victim was physically helpless at the time of the assault. At trial, the state presented the testimony of the deputy chief medical examiner for the state, Edward T. McDonough. He testified that the victim died from asphyxia due to neck compression. He further testified, however, that the injuries the victim suffered to her face, including pattern injuries consistent with a clothes iron and the oval shaped indentations, occurred at about the same time as her death. He so testified on the basis of swelling in that area because swelling "is a vital process." McDonough testified that the bruises and injuries that the victim suffered to her vaginal area occurred at or near the time of death. He testified on cross-examination that bruising may, in rare cases, occur postmortem; however, swelling must occur antemortem. Consequently, it was reasonable for the jury to conclude that the injuries the victim sustained as a result of the defendant's assault occurred antemortem. It was reasonable for the jury to infer that the victim was rendered unconscious by either strangulation by Smith, the defendant's striking her in the head with a clothes iron and kicking her, or a combination thereof and that therefore she was physically helpless at the time of the assault.

Even if we assume arguendo that the victim was dead at the time of the assault, we are not persuaded that the victim could not be considered "physically helpless" because she was deceased.

"Our analysis is governed by well established principles of statutory construction. Statutory construction is a question of law and, therefore, our review is plenary.... [O]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter....

"When the statute in question is one of a criminal nature, we are guided by additional tenets of statutory construction. First, it is axiomatic that we must refrain from imposing criminal liability where the legislature has not expressly so intended.... Second, [c]riminal statutes are not to be read more broadly than their language plainly requires and ambiguities are ordinarily to be resolved in favor of the defendant.... Finally, unless a contrary interpretation would frustrate an evident legislative intent, criminal statutes are governed by the fundamental principle that such statutes are strictly construed against the state." (Citations omitted; internal quotation marks omitted.) State v. Davis, 255 Conn. 782, 788-89, 772 A.2d 559 (2001).

"`The rule of strict construction, however, does not require that the most narrow, technical and exact meaning be given to the language of a statute in frustration of an obvious legislative intent.... Common sense should be applied to the language of a penal statute, particularly if otherwise absurdity or frustration of the evident design of the legislature results.'" State v. Albert, 50 Conn. App. 715, 726, 719 A.2d 1183 (1998), aff d, 252 Conn. 795,...