State v. Felder

509 A.2d 542, 7 Conn. App. 489, 1986 Conn. App. LEXIS 986
CourtConnecticut Appellate Court
DecidedMay 27, 1986
Docket3399
StatusPublished
Cited by5 cases

This text of 509 A.2d 542 (State v. Felder) 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. Felder, 509 A.2d 542, 7 Conn. App. 489, 1986 Conn. App. LEXIS 986 (Colo. Ct. App. 1986).

Opinion

Daly, J.

The defendant was convicted by a jury of sexual assault in the first degree in violation of General Statutes § 53a-70 (a). After the defendant’s motion for acquittal was denied, the trial court sentenced him to fifteen years in prison. On appeal, the defendant claims (1) that there was insufficient evidence to sup[490]*490port the conviction, and (2) that the court was in error in requiring him to sit at counsel table during the in-court identification procedure. We disagree and therefore find no error.

From the evidence adduced at trial, the jury could have reasonably found the following facts. On August 19,1983, the fifteen year old black victim was residing in a three story house in South Norwalk with her grandparents, two uncles and a younger brother. About 10 a.m., she was watching television on the ground floor when her dog began to bark. She went outside to investigate and upon her return, she found a black male sitting on the living room couch. He asked to see the victim’s uncle, Arthur Lee Walker, who was sleeping upstairs in a third floor bedroom. As the victim attempted to go upstairs to summon her uncle, the male grabbed her hands, pulled her onto the couch, removed her underclothing and penetrated her vagina. While he was on top of her with her hands pinned between their bodies, she screamed, bit him on the thumb, and scratched his face or neck but drew no blood because her fingernails were not long enough to do so. The victim was able to push her assailant off the couch and went to the kitchen looking for a knife. She heard the front door slam, and when she ran to the front door, saw a blue car with a black roof moving down the street. A black male wearing a tee shirt was driving the vehicle but she was unable to observe his face.

The victim then went upstairs, awakened her uncle, and told him of the attack and described her assailant as being the same height as her uncle, with short hair, dark skin, and wearing blue jeans, a white tee shirt and driving a blue Cadillac. She called her grandmother at the latter’s place of employment, and then washed herself. When the grandmother arrived home, they went [491]*491together to the hospital. She told her grandmother that she had seen her assailant previously.

The physical examination took place at the hospital around noontime and disclosed no evidence of trauma. Seminal matter, however, was discovered in the victim’s vagina and on her underwear, but a time frame of the deposits could not be ascertained. Fingernail scrapings did not indicate that she had scratched anyone.

The victim described her assailant to the police as being a black male, five foot eleven inches tall, with a short to medium “afro” hairdo, moustache, and bearing pimple marks on the face. She further described the assailant as wearing blue jeans, a white tee shirt and dirty sneakers. After working on a composite, she was shown a photo array which included a picture of the defendant. She picked out the defendant’s photo. While her eyesight was not good without glasses, which she was not wearing at the time of the assault, she could make out persons, including the assailant, when they were within four steps of her. In addition, the uncle later told the police that the victim’s description of the clothes and the car matched the description of a friend he knew as Pike, which is the defendant’s nickname.

The victim made a positive in-court identification of the defendant, at which time the state first became aware that the victim knew the defendant. He lived around the corner some five hundred feet from her home. She had seen him once before and recalled that he was living with a girlfriend of hers.

The defendant did not testify but offered an alibi defense. He claims that he was at his bank at approximately 11:28 a.m., where he was photographed by the bank surveillance camera withdrawing $25 which he later used to purchase tires. He was arrested at about 2:15 p.m., in his blue Cadillac and, at the time, was [492]*492wearing blue jeans and a tee shirt. The bank is a nine minute drive from the victim’s house. The defense offered testimony that the defendant was thirty-one years old, five foot four inches tall, weighed 140 pounds and wore side burns and had no pimples.

When a verdict is challenged because of insufficient evidence, the standard applied is whether the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a'reasonable doubt. State v. Monk, 198 Conn. 430, 432, 503 A.2d 591 (1986); State v. Carter, 196 Conn. 36, 44, 490 A.2d 1000 (1985); State v. Nemeth, 182 Conn. 403, 410, 438 A.2d 120 (1980). “The evidence must be given a construction most favorable to sustaining the jury’s verdict.” State v. Carter, supra, 44. In determining that each element of the crime charged is proved beyond a reasonable doubt, the jury may make reasonable and logical inferences but may not resort to speculation and conjecture. State v. Monk, supra, 433; State v. Gaynor, 182 Conn. 501, 503, 438 A.2d 749 (1980).

“We do not sit as a thirteenth juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.” State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984). In addition, we cannot retry the facts or judge the credibility of the witnesses. State v. Monk, supra.

The victim testified that she was absolutely certain that the defendant had been her assailant. General [493]*493Statutes § 53a-70 (a) provides in pertinent part that “[a] person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person . . . .” “Sexual intercourse” is defined as “vaginal intercourse” and “[pjenetration, however slight, is sufficient to complete vaginal intercourse . . . .” “Use of force” is defined in relevant part as “(b) use of actual physical force or violence or superior physical strength against the victim.” General Statutes § 53a-65 (2) and (7). “The victim’s testimony, if believed by the jury, was sufficient to establish beyond a reasonable doubt that the defendant compelled the victim to engage in sexual intercourse by the use of force.” State v. Monk, supra, 433. The verdict indicates that the jury chose to believe the state’s version of the evidence, and to disbelieve the defendant’s version. Id.

The defendant next challenges his in-court identification by the victim as being impermissibly suggestive because he was the only black male in the courtroom and was seated prominently at the counsel table. The defendant relies on United States v. Archibald,

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615 A.2d 1058 (Connecticut Appellate Court, 1992)
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523 A.2d 514 (Connecticut Appellate Court, 1987)
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Bluebook (online)
509 A.2d 542, 7 Conn. App. 489, 1986 Conn. App. LEXIS 986, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-felder-connappct-1986.