State v. Pepper

828 A.2d 1268, 79 Conn. App. 1, 2003 Conn. App. LEXIS 374
CourtConnecticut Appellate Court
DecidedAugust 26, 2003
DocketAC 23376
StatusPublished
Cited by11 cases

This text of 828 A.2d 1268 (State v. Pepper) 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. Pepper, 828 A.2d 1268, 79 Conn. App. 1, 2003 Conn. App. LEXIS 374 (Colo. Ct. App. 2003).

Opinion

Opinion

McLACHLAN, J.

The defendant, Justin C. Pepper, appeals from the judgment of conviction, rendered following a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1). On appeal, the defendant claims that (1) the trial court denied him his constitutional right of confrontation by precluding him from questioning the victim about her motive to accuse him falsely of sexual assault, (2) pursuant to Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), the state violated his constitutional rights by using his postarrest and post-Miranda1 silence for impeachment purposes and substantive evidence of [3]*3guilt, and (3) the state committed prosecutorial misconduct by asking him to comment on the credibility of the victim and the veracity of her testimony. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts.2 On April 23, 2001, at 11:30 p.m., the victim was in her residence with her husband and her one year old daughter, who were asleep, when the defendant knocked on her door uninvited. The defendant appeared upset and wanted to speak with the victim’s husband. The victim woke her husband so that he could get ready for work, which began at midnight. Her husband left for work at 11:45 p.m., but the defendant remained. The defendant and the victim conversed about what was upsetting the defendant. During their conversation, both drank alcoholic beverages. The victim then began to drink soda.

At 12:30 a.m., the victim’s husband called her and asked if the defendant was still there. The victim answered in the affirmative. The victim and the defendant then began to “play fight” with each other, which involved the victim spitting soda and water on the defendant, the defendant attempting to retaliate, and both running around the residence as they did so. The victim’s husband called a second time and asked if the defendant was still there. The victim lied and stated that he had left. She then noticed that the floor near the bathroom was sticky from spilled soda and proceeded to mop up the spill. She then went into the bathroom and changed into her pajamas, which consisted of baggy cargo pants, a blue tank top, and no underwear.

The defendant said that he and the victim should have sex and that he would not tell her husband. The [4]*4victim told the defendant no, that she was married and would not have sex with him. She then asked the defendant to leave her residence. The defendant told her that he would not leave until he “got some” and came toward the victim. She ran toward her bedroom where she planned to lock herself in to prevent the defendant’s advances, but on her way she slipped on the floor that she had just cleaned. The defendant grabbed her as she fell and pushed her into the bedroom. He then threw her onto the bed and jumped on top of her between her legs. The victim tried to push the defendant away with her feet and kicked the defendant. The defendant continued in his attempt to spread her legs apart as the victim struggled and screamed for the defendant not to continue. The defendant told her to shut up or he would punch her in the face.

The defendant then pulled her pants down, removed his shirt and pushed his pants down to his ankles, leaving his sneakers on. He then placed the victim’s legs over his shoulders and had sexual intercourse with her for five minutes, during which he told her to be quiet or he would punch her in the face. The victim said it was impossible to fight the defendant in the position she was in. After the intercourse, the defendant threatened that if she told anyone, he would inform her husband that the sex was consensual and that she had slept with an old roommate. The victim was distraught and upset after the sexual assault.

Once the defendant left, the victim contacted her father, the police and her husband informing them of the sexual assault. She was taken to a hospital where routine tests after a sexual assault were given and evidence taken. Her injuries included abdominal pain, back pain, bruising on her inner thighs and vaginal bleeding. Laboratory tests from specimens taken from the victim [5]*5and compared with a blood sample from the defendant indicated that his sperm was present.3

I

The defendant’s first claim is that the court improperly denied him his sixth amendment right to confront the victim when it precluded him from questioning the victim about her motive to accuse him falsely of sexual assault.4 Specifically, the defendant argues that he should have been permitted to cross-examine the victim concerning the reasons for a previous suicide attempt that occurred after she engaged in an earlier extramarital affair. Additionally, the defendant argues that this evidence was admissible under common-law evidentiary rules. We disagree that the court acted improperly.

On May 3, 2002, the defendant filed notice that he intended to offer evidence of the sexual conduct of the victim. On May 6, 2002, the defendant filed a written offer of proof concerning the admissibility of evidence of the victim’s sexual conduct, arguing, inter alia, that such evidence was relevant to his defense of consent. On May 9, 2002, the court held a hearing on those matters pursuant to General Statutes § 54-861'. The defendant had subpoenaed medical records from Lawrence and Memorial Hospital in New London concerning the victim. Pursuant to the procedure set forth in [6]*6State v. D'Ambrosio, 212 Conn. 50, 561 A.2d 422 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990), the court conducted an in camera inspection of all the subpoenaed records and disclosed to the defendant certain medical records from the victim’s hospitalization in October, 2000, after a suicide attempt that had been made soon after a previous extramarital affair.5

Upon review of those records, the defendant amended his offer of proof concerning the admissibility of evidence of the victim’s sexual conduct. The defendant argued that the recently disclosed evidence was relevant to demonstrate that the victim had fabricated the sexual assault claim because she was afraid of her husband’s reaction and potential negative effects stemming from her actions.6 The court deferred ruling on [7]*7the defendant’s motion until the victim testified. After the victim’s direct examination, the defendant renewed his motion to admit the evidence, stating: “I wish to ask her directly concerning whether or not she lied to her husband [during the second telephone call] because she had been previously caught in an affair, and she was worried about the further effect and erosion of her marriage in addition to or rather following on from the October-September hospital records.” The state objected to that area of inquiry. The court then asked the defendant’s counsel: “Now, this is lying to her husband with respect to saying that your client had left the apartment when, in fact, he was still there? Is that what we’re talking about, that phone call.” The defendant answered, “Yes, Your Honor.” The court overruled the state’s objection and permitted that inquiry by the defendant.

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Cite This Page — Counsel Stack

Bluebook (online)
828 A.2d 1268, 79 Conn. App. 1, 2003 Conn. App. LEXIS 374, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pepper-connappct-2003.