State v. Wooten

• Decision Date: 07 September 1993
• Docket Number: No. 14419,14419
• Citation: 631 A.2d 271,227 Conn. 677
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Michael WOOTEN.

Page 271

631 A.2d 271

227 Conn. 677

STATE of Connecticut v. Michael WOOTEN.

No. 14419.

Supreme Court of Connecticut.

Argued May 5, 1993.

Decided Sept. 7, 1993.

Martin Zeldis, Asst. Public Defender, for appellant (defendant).

Leah Hawley, Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and Edward Narus, Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and NORCOTT, JJ.

CALLAHAN, Associate Justice.

The defendant, Michael Wooten, was charged with kidnapping in the first degree in violation of General Statutes § 53a-92, ¹ sexual assault in the first degree in violation of General Statutes § 53a-70 ² and assault in the third degree in violation of General Statutes § 53a-61. ³ A jury returned a verdict of guilty on the charges of kidnapping in the first degree and assault in the third degree. It was unable, however, to reach a verdict on the charge of sexual assault in the first degree. The trial court, Miano, J., therefore declared a mistrial on that charge and entered judgment in accordance with the verdict on the other charges. The defendant moved for a judgment of acquittal as to all the charges. The trial court denied his motion, and sentenced him to a total effective sentence of seventeen years. ⁴ The trial court then dismissed the charge of sexual assault in the first degree without prejudice to the state, but subsequently vacated the dismissal and reinstated the charge. The defendant appeals from the judgment of conviction pursuant to General Statutes § 51-199(b)(3). ⁵ We affirm the judgment.

A review of the transcript of the defendant's trial reveals the following. On the evening of July 23, 1990, the victim, having arranged for a friend to care for her infant daughter, walked from her home on Ashley Street in Hartford to the Arthur Drug Store on Farmington Avenue in order to purchase a pacifier and a baby bottle. The victim was able to purchase a pacifier, however, the store did not have a bottle in stock. She was told by an employee, however, that a store on Asylum Avenue might have the item.

At approximately 11 p.m., while walking along Asylum Avenue, the victim was approached by the defendant who asked her for a cigarette. The victim told him that she did not have any cigarettes and walked away. The defendant started to follow her down Asylum Avenue, and then grabbed her by the hair and began pulling her across the street. As the victim was being dragged across Asylum Avenue, two women drove by and heard her cries for help.

The defendant forced the victim into a parking lot located behind a bank just off of Asylum Avenue, and onto a grassy area within the parking lot. Once there, he struck her in the face and legs and threatened to kill her. He then placed a sharp metal object against her neck and forcibly disrobed her. ⁶ Thereafter he attempted unsuccessfully to coerce the victim to perform fellatio. Failing at that, he compelled her to engage in vaginal intercourse.

While the victim was being assaulted, a passerby, Jose Hernandez, saw the defendant lying on top of the victim engaged in sexual activity. When the defendant saw Hernandez, he quickly stood up, pulled up his pants, and approached Hernandez, explaining that he had paid ten dollars to have sex with the victim. The defendant then abruptly left the scene and ran down Asylum Avenue.

Immediately after the defendant had fled, the police arrived at the scene, having been led there by the two women who had previously witnessed the defendant dragging the victim across Asylum Avenue. Hernandez remained at the scene of the crime and gave a description of the assailant to Officer Chris Hopkins, the first police officer to arrive. Hernandez then got into a police car with Hopkins to reconnoiter the area in an attempt to locate the assailant. They first drove west on Asylum Avenue and then north onto Huntington Street. When nearing the intersection of Huntington and Collins Streets, Hernandez saw a heavyset man who, he informed Hopkins, was the man who had assaulted the victim. The defendant was then apprehended and detained by the police on Huntington Street. While the defendant was being held, Hernandez again identified him as the man he had seen assaulting the victim in the bank parking lot. Thereafter, the victim was taken by the police to Huntington Street where the defendant was being detained. There the victim positively identified the defendant as her assailant.

The defendant testified that he had neither kidnapped nor attacked the victim, but that he had been elsewhere at the time the alleged crimes were committed. He, along with alibi witnesses who testified on his behalf, explained that on the evening that the victim was attacked he had been at his sister's house until sometime after 11 p.m., at which time he left and walked to a gas station to purchase cigarettes.

The defendant claims that the trial court improperly: (1) denied his motion to suppress the victim's out-of-court identification; (2) denied his motions for a mistrial, the first made after the victim had unexpectedly identified the defendant in court and the second when the court indicated that it intended to give a curative instruction in replacement of a prior curative instruction; (3) permitted the state to reopen its direct examination of the victim to allow her to make an in-court identification; (4) refused to instruct the jury that prior inconsistent statements of the victim could be used substantively by the jury in its deliberations; (5) refused to declare a mistrial after a juror communicated with the trial court, and instead gave a "Chip Smith" instruction; and (6) reinstated the charge of sexual assault in the first degree in the defendant's absence, after it had already declared a mistrial as to that charge and had dismissed the charge in open court. We affirm the judgment of the trial court.

I

The defendant first claims that the trial court improperly denied his motion to suppress the victim's out-of-court identification. He argues that the victim's out-of-court identification resulted from an unnecessarily suggestive procedure and was unreliable, and that, as a consequence of its admission, his constitutional rights to due process were violated. We disagree.

At trial, prior to the presentation of the state's case, the trial court held a hearing on the defendant's motion to suppress the victim's out-of-court identification. During the hearing, the victim testified that she remembered her assailant to have been a black male of medium complexion, who was approximately six feet tall and heavyset, who appeared to her to have "chinese" shaped eyes and to be wearing a white baseball cap and a white shirt. She testified that, although there had been "little light" when she had first seen her assailant approaching her on Asylum Avenue, she had not had any difficulty in seeing him. The victim further stated that she had been face-to-face with her assailant for a few seconds when he had first approached her. In addition, she testified that during the assault she had had a partial view of his face, although she was sickened and frightened by his actions and attempted to avoid looking at him while he was on top of her in the parking lot. ⁷

Hernandez, the passerby, also testified during the suppression hearing that he had had no difficulty seeing the man in the parking lot on the evening of the attack. He described him as a heavyset black male who was about six feet tall and two hundred pounds. He further testified that the assailant had been wearing a dirty, white T-shirt, black pants and a dark cap with a team insignia.

After the attack, Carmello Hernandez, a Spanish speaking police officer, was called to the scene in order to assist the victim who spoke only Spanish. Shortly after arriving at the scene, Hernandez drove the victim to her apartment on Ashley Street to check on her daughter. Thereafter, he started to transport the victim and Magaly Franqui, a friend who had offered to accompany the victim, to the hospital. While en route Hernandez received a call over the radio that a suspect had been apprehended. He told the victim that the police had a suspect who they wished to have her attempt to identify before she went to the hospital.

Consequently, approximately one-half hour after the attack, the victim was taken to where the police were detaining the suspect. There, Hernandez asked the victim to try to identify her assailant and told her not to be frightened. She then exited from the police car operated by Hernandez and, accompanied by Franqui, walked over to the police car in which the suspect was seated in the rear seat. The light was on in the car. From a distance of about eight to ten feet, the victim positively identified the suspect as the person who had assaulted her. Although she had been reluctant to attempt the identification, she testified that she was absolutely certain that the person in the police car was her assailant, saying, upon seeing the defendant, "[t]hat's him, that's him." Moreover, the victim testified that no one had coached her to make the identification. At the close of the hearing, the trial court concluded that the victim's identification of the defendant, although suggestive, was not unnecessarily so, and also found it to be reliable under the totality of circumstances.

It is well settled that "[i]n determining whether a pretrial identification procedure violated a defendant's due process rights, 'the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the "totality of the circumstances." ' " State v. Tatum, 219 Conn. 721, 727, 595 A.2d 322 (1991), quoting State v. Theriault, 182...