State v. Tucker, No. 14446

• Court: Supreme Court of Connecticut
• Writing for the Court: Before PETERS; CALLAHAN
• Citation: 629 A.2d 1067,226 Conn. 618
• Parties: STATE of Connecticut v. Kevin TUCKER.
• Docket Number: No. 14446
• Decision Date: 27 July 1993

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629 A.2d 1067 226 Conn. 618 STATE of Connecticut
v.
Kevin TUCKER. No. 14446. Supreme Court of Connecticut. Argued Feb. 11, 1993.
Decided July 27, 1993.

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[226 Conn. 619] Deborah Del Prete Sullivan, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellant (defendant).

Timothy J. Sugrue, Asst. State's Atty., and, on the brief, Michael Dearington, State's Atty., and Elpedio Vitale, Asst. State's Atty., for appellee (state).

Before [226 Conn. 618] PETERS, C.J., and CALLAHAN, BORDEN, NORCOTT and SANTANIELLO, JJ.

[226 Conn. 619] CALLAHAN, Associate Justice.

A jury found the defendant, Kevin Tucker, guilty of the crimes of sexual assault in the first degree in violation of General Statutes § 53a-70(a), kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2) and assault in the second degree [226 Conn. 620] in violation of General Statutes § 53a-60(a)(1). ¹ The court rendered a judgment of conviction upon the verdict. The defendant appeals ² from that judgment, claiming entitlement to a new trial because the trial court improperly: (1) instructed the jury to draw a conclusive presumption; (2) complied only partially with a jury request to rehear testimony; (3) denied his motion for a mistrial; (4) denied his motions during jury selection to excuse certain venirepersons for cause and for an additional peremptory challenge; (5) sanctioned a nonunanimous verdict; and (6) instructed the jury concerning the standard of proof beyond a reasonable doubt. We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. At approximately 5:30 a.m., on August 25, 1990, New Haven police officer Michael Quinn responded to a 911 emergency telephone call in which the caller reported having been awakened by "blood curdling screams" for help coming from the area of the Edge of the Woods store in New Haven. The caller also said that he had heard a woman pleading "Don't do it to me." Quinn drove behind the store, illuminated the area [226 Conn. 621] with his spotlight and observed the defendant standing over the victim. ³ The defendant's trousers and underwear were lowered below his knees; the victim was "screaming hysterically." Quinn ordered the defendant to halt, but the defendant pulled up his pants and fled. Quinn exited the cruiser and pursued the defendant on foot. Because Quinn was familiar with the area and knew that an alley into which the defendant had run exited on Sherman Avenue, he decided not to scale fences but rather to run around the store so that he could intercept

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the defendant. Although Quinn had lost sight of the defendant for approximately thirty seconds before apprehending him, Quinn was certain that he had apprehended the person whom he had observed standing over the victim. Quinn walked the defendant to the rear of the store where the victim positively identified the defendant as the perpetrator of the assault.

Brian Donnelly, another New Haven police officer who had been dispatched in response to the 911 call, found the victim, slumped on the ground and crying hysterically, and summoned medical assistance and hospital transport for her. She had "massive injuries to [her] head," and her swollen and bleeding face had been beaten "almost ... beyond recognition."

The defendant, a stranger to the victim, had followed her along Edgewood Avenue. He had then approached her, grabbed her hands, picked her up, carried her behind the store and thrown her to the ground. The victim had attempted to resist and the defendant had punched her in the face numerous times, choked her and threatened that he would kill her if she continued to resist and scream. The defendant had then ripped [226 Conn. 622] off the victim's slacks and underpants, had pulled down his own trousers and had forced the victim to engage in vaginal intercourse.

The medical and scientific testimony, based on observations of the victim and laboratory examinations of physical evidence, was consistent with these facts. On the morning of the incident, Margaret Alexander, a resident in obstetrics-gynecology at St. Raphael's Hospital, secured from the victim a history of the events that had resulted in her traumatic injuries, conducted a physical examination in order to locate evidence of trauma, laceration or assault, and proceeded through the Sirchie sex crimes kit protocol. ⁴

Sanders Hawkins, the chief toxicologist at the state department of health services, conducted tests on clothing of the defendant and the victim. The defendant's T-shirt contained semen stains and his jacket contained traces of blood. The victim's jacket and shirt tested positive for traces of her own blood. The victim's vaginal and anal smears contained spermatozoa, and a vaginal swab taken from the victim contained seminal acid phosphatase.

I

The defendant first claims that the trial court improperly instructed the jury to draw a conclusive presumption and thereby removed from the jury's consideration an element of the offense of kidnapping in the first degree, in violation of the defendant's federal and state [226 Conn. 623] constitutional rights to a fair trial as guaranteed by the fifth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. ⁵ In the course of its instructions, the trial court stated: "If the acts complained of were accompanied by the use of force or violence no further proof is required to establish the lack of consent on the victim's part." The defendant argues that the trial court's instruction relieved the state of the burden of proving the element of lack of consent. ⁶

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The defendant did not object to the court's instruction at trial. We therefore analyze this unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). ⁷

"A mandatory presumption instructs the jury that it must infer the presumed fact if the State proves certain[226 Conn. 624] predicate facts.... A mandatory presumption violates the due process clause if it relieves the state of the burden of proving an essential element of the offense...." (Citations omitted; internal quotation marks omitted.) State v. Williams, 199 Conn. 30, 36, 505 A.2d 699 (1986). The defendant argues that the instruction in this case violated the Sandstrom doctrine; Sandstrom v. Montana, 442 U.S. 510, 517-24, 99 S.Ct. 2450, 2455-59, 61 L.Ed.2d 39 (1979); thereby rendering "irrelevant the evidence on the issue because the jury may have relied upon the presumption rather than upon that evidence." Connecticut v. Johnson, 460 U.S. 73, 85, 103 S.Ct. 969, 976, 74 L.Ed.2d 823 (1983).

In analyzing the defendant's claim, we assume, without deciding, that the challenged instruction constituted a Sandstrom violation. This assumption, however, "does not end the inquiry because such an error is harmless if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Cerilli, 222 Conn. 556, 584, 610 A.2d 1130 (1992). "When the verdict of guilty reached in a case in which Sandstrom error was committed is correct beyond a reasonable doubt, reversal of the conviction does nothing to promote the interest that the rule serves." Rose v. Clark, 478 U.S. 570, 580, 106 S.Ct. 3101, 3107, 92 L.Ed.2d 460 (1986).

Upon review of the entire record, we conclude that the assumed instructional error was harmless beyond a reasonable doubt. Evidence of the victim's lack of consent to the abduction was overwhelming and undisputed. The jury heard testimony that: (1) the perpetrator was not known to the victim; (2) the victim had cried out "blood curdling" screams of "Help me," "Don't do it to me" and "Why are you doing it to me"; (3) the victim had attempted to escape from the perpetrator by kicking, fighting and screaming; (4) the perpetrator[226 Conn. 625] had severely beaten the victim; and (5) officer Quinn saw the perpetrator standing over the traumatized, injured victim, thereby limiting the victim's liberty to move. ⁸ These facts compel the conclusion beyond a reasonable doubt that, in the absence of the assumably erroneous instruction, the jury would have concluded that the victim did not consent. Consequently, the defendant has not satisfied the fourth prong of Golding.

II

The defendant next claims that his right to a fair trial was impaired because the trial court abused its discretion by complying only partially with a request by the jury to rehear testimony. We disagree.

During its deliberations, the jury requested to hear again "Doctor Alexander's testimony concerning the examination of [the victim]." The defendant contended, however, that all of Alexander's testimony

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should be read back to the jury. He argued that, because the adjective "physical" had not modified "examination" in the jury's request, the trial court should have had read back, not only testimony concerning the physical examination, but also the history that Alexander had taken from the victim prior to conducting the physical examination and the Sirchie sex crimes kit protocol. Specifically, the defendant stressed that the jurors should again hear Alexander's testimony that the victim had described the perpetrator of the assault as "a short black man" and had alleged that "he [had] raped her with anal penetration"; (emphasis added); because he claimed that the victim's statements to Alexander conflicted with the victim's own testimony. ⁹ The trial [226 Conn. 626] judge conferred with counsel and then told the jury that he had decided "to read what I think it is that you want. If you want a more expansive reading kindly caucus among yourselves and indicate that to me." Alexander's testimony concerning her physical findings was thereupon read to the jury and the trial court reminded the jury that...