State v. Solek

• Decision Date: 12 August 1997
• Docket Number: No. 15595,15595
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Timothy SOLEK.

Page 931

699 A.2d 931

242 Conn. 409

STATE of Connecticut v. Timothy SOLEK.

No. 15595.

Supreme Court of Connecticut.

Argued May 27, 1997.

Decided Aug. 12, 1997.

Susann E. Gill, Assistant State's Attorney, with whom were C. Robert Satti, Jr., Senior Assistant State's Attorney, and, on the brief, Donald A. Browne, State's Attorney, for appellant (State).

G. Douglas Nash, Public Defender, New Haven, with whom was Michael A. Fitzpatrick, Bridgeport, for appellee (defendant).

Before CALLAHAN, C.J., and BORDEN, BERDON, PALMER, McDONALD, PETERS and EDWARD Y. O'CONNELL, JJ.

CALLAHAN, Chief Justice.

In an amended information filed on January 3, 1997, the state charged the defendant, Timothy Solek, with five criminal offenses. Count one charged the defendant with capital felony (murder committed in the course of the commission of a sexual assault in the first degree) in violation of General Statutes § 53a-54b (7). ¹ Counts two and three charged the defendant with murder in violation of General Statutes §§ 53a-54a (a) and 53a-8 ², and felony murder in violation of General Statutes § 53a-54c. ³ Counts four and five charged the defendant with sexual assault in the first degree in violation of General Statutes § 53a-70 (a)(1), ⁴ and sexual assault in the second degree in violation of General Statutes § 53a-71 (a)(3). ⁵ The trial court dismissed count one of the amended information, in part, on the basis that it failed to state an offense. See Practice Book § 815(2). ⁶ The state has appealed that dismissal on the basis of a grant of certification, pursuant to General Statutes § 52-265a ⁷ and Practice Book § 4180, ⁸ by Justice Borden, acting in place of the Chief Justice, who was unavailable. We conclude that count one of the amended information properly charged the defendant with the offense of capital felony. We therefore reverse the dismissal by the trial court and remand the case for further proceedings.

Before addressing the substantive issue in this appeal, we set forth the relevant factual circumstances out of which the charges against the defendant arose, and the procedural history of the case. In response to the defendant's renewed motion for a bill of particulars, the state filed a statement of essential facts setting forth the factual allegations that the state intended to prove at trial. The state claimed that on May 12 or 13, 1995, the defendant and another man, Scott Smith, visited the victim at her apartment in Bridgeport. The state alleged that the defendant threatened the victim by telling her that he would tie her up, throw her in the closet and burn her. The state alleged further that an altercation ensued between the victim and the defendant and Smith when the victim attempted to push the defendant out of her apartment. According to the state's allegations, Smith grabbed the victim in a headlock and attempted to knock her to the floor. The victim began to scream and struggle as Smith wrestled with her. Smith asked the defendant to get a knife. After unsuccessfully searching the apartment for a knife, the defendant stabbed the victim in the head with a can opener. As the victim continued to fight with Smith, the defendant hit the victim in the head with an iron. The defendant then kicked the victim five times, causing her to spit up blood. Smith manually strangled the victim and struck her in the neck with his knee as the defendant hit her in the head with the iron. After rendering her physically helpless, Smith proceeded to have oral sex with the victim. Smith also unsuccessfully attempted to have vaginal sexual intercourse with her while the defendant watched. After Smith was finished, the defendant had vaginal and anal sexual intercourse with the victim, causing lacerations of the vaginal wall and the junction of the perineum and posterior introitus of the vagina. The defendant ejaculated in the victim. The state alleged that the cause of the victim's death was asphyxia and that Smith had caused her death by manual strangulation.

Shortly thereafter, both the defendant and Smith gave separate and differing written statements to the Bridgeport police, each confessing their involvement in the events described above. On May 30, 1995, on the basis of the defendant's confession, the state charged the defendant by information with two counts of capital felony (murder committed during the course of a kidnapping, and murder committed during the course of the commission of sexual assault in the first degree in violation of subdivisions (5) and (7), respectively, of § 53a-54b), one count each of murder and felony murder, one count of first degree sexual assault, two counts of second degree sexual assault, one count of kidnapping in the first degree and one count of unlawful restraint in the first degree. In that information, the first count alleged, in part, that the defendant "did murder another person in the course of the commission of [s]exual [a]ssault in the [f]irst [d]egree, in violation of [§ ] 53a-54b (7)...." Count three alleged, in part, that the defendant, "with intent to cause the death of ... another person, did strangle, and cause the death of the said other person, in violation of [§ ] 53a-54a (a)...." The state also charged Smith by information with several criminal offenses, including, among other things, two counts of capital felony in violation of subdivisions (5) and (7) of § 53a-54b, one count of felony murder and one count of murder.

The trial court, Ronan, J., granted the defendant's motion for a separate probable cause hearing and for severance of the case against him from the state's case against Smith. As a result, two trial court judges conducted separate hearings in probable cause for the defendant and for Smith. Because of a potential problem under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the defendant's confession was not admitted as evidence in Smith's probable cause hearing, and, likewise, Smith's confession was not admitted as evidence in the defendant's probable cause hearing. The trial court, McKeever, J., found probable cause with respect to the defendant on the charges of capital felony (murder committed in the course of the commission of sexual assault in the first degree), murder and felony murder, but did not find probable cause with respect to the second capital felony count (murder committed in the course of a kidnapping). The trial court, Gormley, J., found no probable cause with respect to Smith on the two counts of capital felony and the felony murder count. The court, however, did find probable cause with respect to Smith on the murder count.

On December 11, 1996, the state filed an amended information, charging the defendant with six criminal offenses. ⁹ In that information, the state had altered the wording of the murder count to charge the defendant on the basis of an accessory theory of liability. The murder count provided as follows: "[The defendant], with intent to cause the death of another person, did intentionally aid one Scott Smith, who did strangle, and cause the death of the said other person, in violation of [§§ ] 53a-8 and 53a-54a (a)." (Emphasis added.) The wording of the capital felony count, however, remained the same as it had been in the May 30, 1995 information.

The trial court, Hartmere, J., held a hearing on, among other things, the defendant's motion for a bill of particulars. ¹⁰ At that hearing, the defendant objected to the form of the capital felony count in the December 11, 1996 amended information. The defendant requested that the state reword the capital felony count to allege that the defendant's liability was accessorial in nature, so that it would be consistent with the murder count. The defendant argued that the wording of the capital felony and murder counts would cause confusion for a jury because the murder count alleged that the defendant had aided Smith to commit the murder, but the capital felony count alleged that the defendant had murdered the victim. Although the state represented to the trial court that the capital felony count would be reworded to charge the defendant as an accessory to capital felony, the state filed another amended information on December 31, 1996, in which the wording of count one remained the same, except for the addition of Smith's name. The defendant subsequently moved the trial court to strike count one of the December 31, 1996 amended information.

On January 3, 1997, the state filed the five count amended information that is involved in this appeal. ¹¹ In that information, the state had reworded the capital felony count to allege that "at the City of Bridgeport, Fairfield County, on the 13th day of May 1995 at or about 2:39 a.m., at 2900 Main Street, Apartment 432, Bridgeport, [the defendant], in the course of the commission of Sexual Assault in the First Degree, with intent to cause the death of another person, did intentionally aid one Scott Smith by striking with an iron, stabbing with a can opener, and kicking another person, while the said Scott Smith did strangle, and cause the death of the said other person, in violation of [§ ] 53a-54b (7)." (Emphasis added.) The defendant again objected to the wording of the capital felony count, and orally moved the court to dismiss count one of the January 3, 1997 amended information pursuant to Practice Book § 815(2). The defendant interpreted the amended capital felony count as charging the defendant under an accessory theory of liability because of the use of the word "aid" in the charge. Because Judge Gormley had not found probable cause to believe that the purported principal in the crime, Smith, had committed capital felony, the defendant argued that the state could not charge the defendant with capital felony on the basis of an accessory theory of liability. In addition, the defendant contended that the wording of the amended version of count one was vague and illogical and failed to state...