State v. Rodgers

542 A.2d 1136, 207 Conn. 646, 1988 Conn. LEXIS 136

• Court: Supreme Court of Connecticut
• Decided: May 31, 1988
• Docket: 13062
• Status: Published

Opinions

Covello, J.

The defendant, Bruce E. Rodgers, appeals, after a jury trial, from a judgment of conviction of sexual assault in the first degree in violation of General Statutes § 53a-70 (a)¹ and attempted murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a.² The judgment appealed from was rendered following the defendant’s second trial on these charges, pursuant to our reversal of his prior conviction and order for a new trial. State v. Rodgers, 198 Conn. 53, 502 A.2d 360 (1985). The defendant claims that: (1) the trial court erred in admitting testimony under the constancy of accusation exception to the hearsay rule; (2) the trial court erred in allowing expert testimony on the issue of penetration; (3) the prosecutor committed reversible error in his argument to the jury; and (4) there was insufficient evidence to support his convictions. We find no reversible error.

The jury could reasonably have found that, during the evening of August 14,1980, the defendant agreed to give the victim a ride home in his car, after visiting several bars together. The victim, a fifteen year old female, fell asleep during the ride. She awoke in the car to find the defendant with his hands around her throat, choking her. She thereafter lost consciousness. When the victim regained consciousness, she was alone on the ground in a rocky area that appeared to be a dump. Her neck and rectum were very sore, and her shoes and underpants had been removed and were on the ground nearby. The victim hitchhiked home, arriving at approximately 5:30 a.m., August 15, 1980. She slept throughout much of the day. Thereafter, friends took her to the hospital at approximately 9 p.m. that evening.

Medical experts testified that the victim had sustained a permanent injury to her third cervical vertebra, more commonly known as a broken neck. The injury was consistent with manual strangulation, and was further evidenced by the victim’s bruised and bloodshot eyes. Further medical testimony revealed that the victim had sustained a midline fissure in the area between her vagina and anus, which extended into the anus. The injury was consistent with rape by rectal penetration.

I

The defendant claims on appeal that the trial court erred in permitting Detective Howard Jones of the Waterbury police department to testify to the details of the incident as related to him by the victim. The court admitted this testimony, over the defendant’s objection, under the “constancy of accusation” exception to the hearsay rule.

“This court has recently reaffirmed the traditional rule in this jurisdiction that a witness to whom the victim of a sex-related offense has complained may testify not only to the fact that the complaint had been made but also to its details.” State v. Pollitt, 205 Conn. 61, 76, 530 A.2d 155 (1987). Such testimony is permitted, under this evidentiary rule, to corroborate the victim’s prior in-court testimony concerning the facts of the alleged sexual offense and “to show constancy in the victim’s declarations.” Id.; State v. Dobkowski, 199 Conn. 193, 199, 506 A.2d 118 (1986).

The defendant claims that this exception is inapplicable in the present case because the victim did not directly and expressly testify to the acts perpetrated on her that constituted the sexual assault. Having been strangled to the point of unconsciousness prior to the alleged sexual attack, the victim was able to testify only to the strangulation and to her experience upon regaining consciousness. Specifically, the victim testified that she fell asleep while riding in the defendant’s car with him, that she awoke to find the defendant with his hands around her throat, choking her, and that she eventually lost consciousness. When she regained consciousness she was alone on the ground in an area that appeared to be a dump. Her underpants had been removed and were on the ground nearby, and she was experiencing severe pain in her rectum.

The victim’s testimony was necessarily limited to a recital of the facts as she experienced them prior to and immediately after her period of unconsciousness. Her inability to describe the events occurring during the interval of unconsciousness, and her concomitant inability, therefore, to articulate a formal accusation of a sexual assault would, according to the defendant’s rationale, deprive the state of the right to present corroborative testimony of what she told others under the constancy of accusation rule. Such a policy would confer a benefit on defendants who render their victims unconscious during sexual assaults, and this act would thereby deprive the state of the ability to present constancy of accusation evidence as to the circumstances surrounding an alleged sexual assault.

Our review of the victim’s testimony convinces us that she did present strong circumstantial evidence that she had been the victim of a sexual assault. “The law makes no distinction as to the probative effect of direct and circumstantial evidence.” State v. Rodgers, supra, 58. We conclude that the victim’s testimony as to the facts of this alleged incident created a strong inference that she had been the victim of a recent sexual assault. Therefore, the trial court properly permitted the introduction of her statements to Detective Jones, even though there was no direct testimony by her of the assault itself.

II

The defendant next claims that the trial court erred in allowing expert testimony on an essential element of the crime that was properly an issue for the jury’s determination. An obstetrician-gynecologist who examined the victim when she was taken to the hospital was allowed to testify, over the defendant’s objection, to his opinion as to the cause of the victim’s injury. The doctor testified that the fissure suffered by the victim was probably caused by a sharp or quick blow to the rectum and was consistent with rape by rectal penetration. During cross-examination, the doctor conceded that it was possible for such an injury to occur other than by penetration, such as by falling forcefully on a sharp rock or against a small, sharp table corner.

“There is no doubt that penetration is an element of the crime of sexual assault in the first degree . . . .” State v. Artis, 198 Conn. 617, 621, 503 A.2d 1181 (1986); see General Statutes § 53a-65 (2). Whether penetration did occur is a question of fact for the jury, and the state is required to establish penetration beyond a reasonable doubt. State v. Artis, supra.

As to the admissibility of the doctor’s expert opinion on this issue, “[t]he trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions.” State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986). “Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.” Id. The doctor’s opinion testimony readily meets this test. First, as a specialist in obstetrics and gynecology, he possessed a knowledge and skill directly relevant to the anatomical area of the injury. Second, the probable cause of a perineal fissure is not obvious as a matter within the common knowledge of the average person. Expert testimony as to the degree of force and the nature of the object required to bring about such a fissure assisted the jury in intelligently assessing the ultimate issue as to whether a sexual assault had occurred. This is precisely the evidentiary circumstance in which we have recently reaffirmed that experts can “ ‘give an opinion on an ultimate issue where the trier, in order to make intelligent findings, needs expert assistance on the precise question on which it must pass. State v. Johnson, 140 Conn. 560, 563, 102 A.2d 359 (1954). Geraty v. Kaufman, 115 Conn. 563, 572, 162 A. 33 (1932). . . ” State v. Vilalastra, 207 Conn. 35, 41, 540 A.2d 42 (1988).

Further, the doctor’s testimony that the injury was consistent with rape by rectal penetration did not usurp the factfinding function of the jury. See State v. Kemp, supra, 477-78. Although the doctor expressed his opinion as to the most likely cause of the victim’s injury, he also testified on cross-examination that the medical evidence did not conclusively establish that rape by rectal penetration had occurred. Moreover, he conceded that the injury could have been inflicted as a result of falling or being thrown forcefully against a small hard object such as a rock or table corner. Thus, it was left to the jury to determine whether penetration had indeed occurred; General Statutes § 53a-65 (2); whether it had been achieved by the use of force or the threat of the use of force; General Statutes § 53a-70; and whether the defendant was the perpetrator.

We conclude, therefore, that the doctor’s testimony was admissible as expert opinion testimony, that it did not invade the province of the jury to determine the ultimate issue and that the trial court properly admitted the challenged testimony.

Ill

The defendant next claims that the prosecutor’s argument to the jury constituted misconduct and deprived him of his right to a fair trial. Specifically, the defendant claims that the prosecutor: (1) expressed his personal opinion as to the defendant’s guilt; (2) expressed his personal opinion as to the victim’s truthfulness; and (3) appealed to the jury’s sympathy for the victim.

The state argues that the defendant’s claim is not reviewable because it has not been properly preserved for appellate review. We agree.

The defendant “took none of the appropriate measures to alert the trial court to a potential problem . . . .” State v. Williams, 204 Conn. 523, 535, 529 A.2d 653 (1987). At trial, the defendant did not object to the remarks now complained of nor did he move for a mistrial on the basis of these remarks. The defendant concedes that this claim was not properly preserved for appeal, but nonetheless seeks review of this issue under the “exceptional circumstances” doctrine of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973),³ or the “plain error” rule of Practice Book § 4185.⁴

The defendant relies on a line of cases where we have reviewed claims of prosecutorial misconduct under State v. Evans, supra. In those cases where we have engaged in Evans review, the record has disclosed a pattern of repeated, strident and serious misconduct.⁵ “In the cases in which we have denied Evans review, the claimed misconduct consisted of isolated and brief episodes, and did not reveal a pattern of conduct repeated throughout the trial. Moreover, the misconduct was not blatantly egregious.” State v. Williams, supra, 537; see State v. Chace, 199 Conn. 102, 107-108, 505 A.2d 712 (1986); State v. Tyler-Barcomb, 197 Conn. 666, 672-74, 500 A.2d 1324 (1985), cert. denied, 475 U.S. 1109, 106 S. Ct. 1518, 89 L. Ed. 2d 916 (1986); State v. Lubesky, 195 Conn. 475, 483-84, 488 A.2d 1239 (1985).

The record in this case does not adequately support a claim of a clear deprivation of the right to a fair trial. The challenged remarks⁶ did not rise to the level of character assassination and vitriolic personal attacks that we have held to constitute a denial of the constitutional due process right to a fair trial. We conclude, therefore, that the remarks of the prosecutor as set forth in the record do not constitute the “exceptional circumstance” contemplated in State v. Evans to warrant review of these unpreserved claims. For similar reasons, we conclude that these remarks do not warrant review as plain error.

IV

The defendant’s final claim is that the evidence presented at trial was legally insufficient to support his convictions. This claim includes two separate challenges: (1) that the evidence of penetration was insufficient to sustain his conviction of sexual assault in the first degree; and (2) that under the facts of this case, the same use of force could not form the basis of charges of both first degree sexual assault and attempted murder.

The defendant presented both of these claims in his appeal of his first convictions. State v. Rodgers, supra, 60-67. We reviewed both of these claimed errors at that time and decided both of them against the defendant. Id. As to the first issue, the defendant contends that our prior holding is not dispositive of this appeal. The defendant asserts that the expert testimony on the issue of penetration presented in his second trial “was very different” from that presented at his first trial. Our review of the record convinces us otherwise. The same experts, a gynecologist and a forensic toxicologist, testified at both trials. While they did not present a verbatim reiteration of their previous testimony, the material elements of their testimony at the first and second trials were essentially the same. We conclude, therefore, that our resolution of the sufficiency of the evidence claim in the defendant’s earlier appeal disposes of the claim here as well.

The second aspect of this claim stems from the unique factual circumstances of this case. The defendant contends that the same application of force cannot be relied on to support convictions for both attempted murder and sexual assault. The defendant bases this claim on his assertion that he could not simultaneously have possessed the requisite intent to kill his victim and also to compel her to submit to sexual intercourse.

We first observe that the defendant did not raise this claim at trial. The defendant argues that this issue was “brought to the attention of the trial court at sentencing,” but, recognizing that this is insufficient to preserve the claim for substantive appellate review, seeks review instead under the “exceptional circumstances” doctrine of State v. Evans.

Even were we to grant the review the defendant seeks, our resolution would be governed by our prior ruling in State v. Rodgers, supra. The defendant raised this identical issue in his earlier appeal, and we stated: “Even if we were to accept the defendant’s argument that in strangling his victim he could not simultaneously have intended to commit both murder and sexual assault in the first degree, he would not prevail. On the facts of this case, it was not necessary that the defendant intended to sexually assault his victim as he strangled her. It is enough that after having caused her to lose consciousness by breaking her neck, he did commit the sexual assault. We conclude that the trial court properly refused to instruct the jury that the defendant could not be found guilty of both attempted murder and sexual assault in the first degree.” Id., 63. The “logic of Rodgers” was recently reaffirmed in State v. Usry, 205 Conn 298, 317, 533 A.2d 212 (1987). The defendant concedes that guilt of both offenses arising from a single act of force is “established law” in this state, but asks us to speculate about the legal effect of other, distinctly different hypothetical circumstances. This we decline to do.

There is no error.

In this opinion, Peters, C. J., and Callahan, J., concurred.

1 General Statutes § 53a-70 (a) provides in relevant part: “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 . . . .”

2 General Statutes § 53a-49 (a) (2) provides: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

General Statutes § 53a-54a provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person. . . .”

3 “Only in most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court.” State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973).

4 Practice Book § 4185 provides in relevant part: “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court.”

5 In State v. Williams, 204 Conn. 523, 544 n.7, 546, 529 A.2d 653 (1987), the assistant state’s attorney referred to the defendant in a child abuse case as a “savage,” “baby-beater,” “infant-thrasher,” and “drunken drug-user, convicted felon, child beater.” These quotations are only examples of the misconduct. Flagrant, severe misconduct in this vein occurred throughout the cross-examination and closing arguments in this case. Id., 541-44 n.7.

In State v. Pelletier, 196 Conn. 32, 490 A.2d 515 (1985), a companion case to State v. Couture, 194 Conn. 530, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985), the prosecutor’s summation included repeated references to one or both of the defendants as “despicable coward[s],” “murderous fiends,” “rats,” “utterly merciless killers,” and “inhumane, unfeeling and reprehensible creatures.” State v. Couture, supra, 561 and n.17.

6 The following is a sampling of the challenged remarks, characterized by the defendant as: (1) the prosecutor’s expression of his personal opinion of the defendant’s guilt: “[the victim] and the facts point to the defendant’s guilt because he is guilty and for no other reason”; “The proof in this case and everyone in this case points to the defendant, the fact that the defendant is guilty for the sole reason that the defendant is, in fact, guilty”; “So, we know, from those facts, proven beyond a reasonable doubt, that the defendant is, in fact, guilty of sexual assault in the first degree . . . ”; “I think the evidence is overwhelming that the defendant is guilty of both of these counts”; (2) the prosecutor’s expression of his personal opinion of the victim’s truthfulness: “And, there was no coloring of the truth by [the victim]. You look at the photographs of her and you will see that there is no doubt and based on the doctor’s testimony, that she suffered a horrendous attack at the hands of this defendant”; (3) an appeal to the jury’s sympathy for the victim: “She was in a state of shock after going through what the defendant put her through. She wanted the security of her own house. She crawled into bed, were her own words exactly, the feeling that we all know after having a horrendous night. Fortunately, none of us have ever had a night like [the victim] because of this defendant. But, we all can sympathize with that kind of a feeling, after having a bad day or night, you do just want to be home, away from strangers, by yourself, you want to be in the security of your own bed. And, you hope, even though you know it’s not going to come true, that the injuries will go away, that the night was not real, it just didn’t happen. But, you know, [the victim] knows and everyone in this case confirmed that these acts did occur and that they were, in fact, perpetrated by this defendant, Bruce Rodgers.”