State v. Cavell

641 A.2d 426, 34 Conn. App. 276, 1994 Conn. App. LEXIS 151
CourtConnecticut Appellate Court
DecidedMay 10, 1994
Docket10605
StatusPublished
Cited by10 cases

This text of 641 A.2d 426 (State v. Cavell) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Cavell, 641 A.2d 426, 34 Conn. App. 276, 1994 Conn. App. LEXIS 151 (Colo. Ct. App. 1994).

Opinions

Foti, J.

The defendant appeals from the judgment of conviction,1 rendered after a jury trial, of sexual [278]*278assault in the first degree in violation of General Statutes § 53a-70.2 The defendant claims that the trial court improperly (1) allowed the state to present rebuttal evidence, and, alternatively, precluded the defense from presenting surrebuttal evidence, (2) excluded certain testimonial evidence, and (3) instructed the jury. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The victim lived with her husband and their four children in a house owned by her mother in Cheshire. On the evening of May 3, 1990, the victim became involved in an argument with her mother. Following the disagreement, she left the house with her children and began driving to her grandmother’s house. The police, who had been contacted by a family member, stopped her vehicle and arrested her for disorderly conduct and criminal mischief. The children were taken home and the victim was taken to the police station.

After being processed, the victim was unable to contact her husband and called a friend, who picked her up at the police station. The police had advised her against returning home until things had cooled off, so her friend dropped her off at a local bar about midnight. She again unsuccessfully attempted to contact her husband by telephone. She ordered a drink at the bar and began talking about her arrest to the defendant, whom she did not know. He introduced her to his girlfriend who had just arrived at the bar. The victim told the defendant that she was unable to locate her husband [279]*279for a ride home and accepted the defendant’s offer of a ride. As the three left the bar, the victim realized that the defendant and his girlfriend were in separate cars. The defendant told his girlfriend that he was going to drive the victim home and would meet her at her house in about ten minutes.

As the defendant pulled out of the parking lot with the victim as a passenger in his car, he was stopped by the police and received a verbal warning because one of the car’s lights was inoperative. As the defendant drove, the victim gave him directions to her house, but he turned instead onto a gravel road leading to the Southington Sportsmen’s Club. The defendant parked the car in front of the dark clubhouse, walked around to the passenger door and asked the victim to get out. When she refused, he grabbed her by the hair, pulled her out of the car and dragged her across the parking lot to a pile of leaves. He overcame her resistance and put his penis in her mouth. She distracted him by saying someone was standing behind him, and when he jumped up to look, she ran to the car. The defendant followed her, grabbed her by the throat, hit her and threatened to kill her. He stated that if she resisted, he would sexually assault her with a beer bottle. He then had vaginal intercourse with her on the passenger side of the front seat. Thereafter, the defendant drove the victim home. As she exited the vehicle, she noted the license plate number and called the police.

I

The defendant’s first claim is bifurcated. He initially claims that the trial court improperly allowed the state to present forensic evidence in rebuttal that should have been presented as evidence only in the case-in-chief. Second, the defendant claims that if that evidence was properly admitted, the court improperly prevented him from presenting surrebuttal evidence.

[280]*280At trial, the defendant testified that it was the victim who had asked him to take her someplace secluded and that she had consented to intercourse. He further testified that the sexual intercourse had taken place in a leafy area on the ground away from the car. He stated that on the ride back to her house, she had pulled leaves and debris out of her hair with her fingers because she did not have a comb or brush. During cross-examination, the defendant denied having had intercourse with the victim in the front seat of the car.

The defense case took eight days beginning May 15, and ending May 29, 1991. The defendant testified on May 20, 21, and 22. On the final day of defense testimony, the assistant state’s attorney announced that he had just handed defense counsel a one page forensic report that had been received the previous day from the state criminal forensic laboratory in Meriden. Although there had been evidence presented that hair and vegetative material had been found on the front seat of the automobile, no tests had been made on the stain on the cover of the front seat. The day following the defendant’s testimony, the state had the stain tested and offered the result of that forensic report as rebuttal evidence. The defendant objected, arguing that such evidence constituted an unfair surprise and would be highly prejudicial. The state argued that because consent was the defense to the allegations of sexual assault, the fact that sexual intercourse had occurred had not previously been disputed. It was not until the defendant denied the victim’s account that he had ejaculated in the front seat that the issues arose as to where the intercourse had occurred and the credibility of both parties.

The court inquired as to how the defense would have altered its posture in the case had it received the forensic report earlier or had the results been presented by the state in its case-in-chief. Defense counsel indicated [281]*281that he could have had the seat tested independently and may have had the defendant testify with regard to sexual activity in the front seat at other times. The court overruled the defendant’s objection to allowing the rebuttal evidence and noted that had the results been negative, they would have had to have been disclosed to the defendant as exculpatory material, obviating the need for an independent test. The court also refused to rule on the defendant’s request for permission to put on surrebuttal evidence at that time, but indicated that it would await cross-examination of the witness presenting the rebuttal evidence and consider whatever the defendant wished to present as surrebuttal through an offer of proof.

The rebuttal evidence consisted primarily of the testimony of a criminologist at the state laboratory that the front seat stain tested positive for the presence of semen and that spermatozoa in the stain were consistent with the defendant’s blood type. On cross-examination, the witness indicated that there was no way to determine the age of the stain, that 36 percent of the population have the defendant’s blood type, and that no attempt had been made to determine whether the vehicle had prior owners or whether any sexual activity had taken place on that front seat prior to the assault. The witness also indicated that no instruction had been given, prior to May 23,1991, not to perform tests on the stain.

A

The defendant alleges that the court abused its discretion in permitting the state to introduce the rebuttal evidence. We do not agree.

“ ‘[Rjebuttal evidence is that which refutes the evidence presented by the defense, rather than that which merely bolsters the state’s case . . . State v. Williamson, 206 Conn. 685, 698, 539 A.2d 561 (1988); State [282]*282v. Lisella, 187 Conn. 335, 337, 445 A.2d 922

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Cite This Page — Counsel Stack

Bluebook (online)
641 A.2d 426, 34 Conn. App. 276, 1994 Conn. App. LEXIS 151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cavell-connappct-1994.