State v. Jonas
State v. Jonas
Opinion of the Court
The defendant was charged in a substituted information with one count of deviate sexual intercourse in the first degree,
A survey of the preliminary statement of facts contained in the briefs under the new rules gov
On October 26, 1973, at the same apartment complex, Miss C, also a resident, received a call on her intercom, shortly after 1:15 a.m. A male voice stated that she had left her car’s lights on in the garage. As she dressed to go to the caí, the man called once again asking if she had heard the earlier message. She went to her car and discovered that the lights were off. She returned to the building and as she entered the elevator she was approached by a man wearing a ski mask. He stood blocking the door to the elevator and instructed her not to push any of the buttons, stating that he had placed a bomb beneath the elevator. Miss C was frightened when he pulled out what appeared to be a steak knife and told her that if she screamed, it would be her last scream. The masked intruder then asked her to turn around and she refused. He asked her name and, when she told him, he replied that he had the wrong person and left without further incident. Miss C viewed the same lineup as did Miss B, but without having had any indication as to Miss B’s prior identification. She also selected the defendant from the lineup and later, at trial, again identified the defendant as the intruder, primarily on the basis of the appearance of his eyes.
Section 54-57 of the General Statutes and §492 of the Practice Book provide: “Whenever two or more cases are pending at the same time against the same party in the same court for offenses of the same character, counts for such offenses may be joined in one information unless the court orders otherwise.” In construing the predecessor to § 54-57, we determined that the question of severance lay within the discretion of the trial court and that the exercise of that discretion cannot be interfered with unless it has been manifestly abused. State v. Silver, 139 Conn. 234, 93 A.2d 154. In that case, we defined the test to be applied as follows (p. 240): “The discretion of a court to order separate trials should be exercised only when a joint trial will be substantially prejudicial to the rights of the defendant, and this means something more than that a joint trial will be less advantageous to the defendant. State v. McCarthy, 130 Conn. 101, 103, 31 A.2d 921; State v. Castelli, 92 Conn. 58, 63, 101 A. 476. The test is whether substantial injustice will result to the defendant if the charges are tried together. State v. Klein, 97 Conn. 321, 324, 116 A. 596.” The
In State v. Oliver, 161 Conn. 348, 361, 288 A.2d 81, an additional prejudicial situation was discussed, that is, when crimes, near in time, place and circumstance, are so similar, although legally unconnected, that there is a danger that the jury will use evidence of one crime to convict the defendant of the other crime. Accordingly, our analysis must focus on the nature of the evidence produced at the trial. At the inception, it should be noted that the legislature previously had appended, as a necessary element of proof in sexual offenses, corroboration of the testimony of the alleged victim. General Statutes § 53a-68. Such evidence, the statute specifically stated, could be circumstantial.
Essentially, the defendant contends that the identification testimony of Miss C and Miss B, each standing alone, would not have resulted in his conviction and that, thus, the joint trial prejudiced him in this respect. If, under the analysis set forth above, it can be found that the testimony of each woman would have been admissible in separate trials of the different offenses it follows that no prejudice can come to the defendant from the joinder. Thus, we must view the counts relating to each woman independently and decide, first, whether, in an independent prosecution for the assault on Miss B, the testimony of Miss C would have been admissible. We find that such evidence would be independently admissible under the requirement of § 53a-68 as corroborative of the principal victim’s account. As we recently stated in State v. Marshall, 166 Conn. 593, 600, 353 A.2d 756: “ ‘Evidence of the commission by the accused of crimes unconnected with that for which he is being tried when offered by the State in chief violates the rule of policy which forbids the State initially to attack the character of the accused, and also the rule that bad character may not be proved by particular acts and is therefore
The nature of the act forced upon Miss B allows for little in the way of surviving physical evidence and it is not likely that physical corroborative evidence could be preserved. The fact, however, that a man of the same stature appeared, garbed in the manner of Miss B’s assailant, wielding a knife, in the same apartment complex, a short time after the attack on Miss B, provides circumstantially
We next turn to the counts relating to Miss C. Burglary in the second degree and threatening are not within the range of offenses to which § 53a-68 applies and thus the testimony of Miss B was not admissible in this separate prosecution for the same reasons above outlined. Thus there is a strong probability that the jury employed evidence of the assault on Miss B in considering the other incident, particularly given the indelicate and repulsive nature of the deviate sexual act involved. Under the rationale of State v. Silver, supra, and State v. Oliver, supra, it is quite likely that the failure, to sever did prejudice the defendant in this respect and thus we find that the defendant is entitled to a new trial on the counts relating to the incidents of October 26, 1973. The remaining assignments of error will be discussed only in their relation to the two counts charging offenses on October 20, 1973.
The defendant’s next contention is that the state failed to corroborate fully the deviate sexual intercourse, claiming under the New York rule; see People v. Linzy, 31 N.Y.2d 99, 286 N.E.2d 440; that there must be corroboration of identity, compulsion, and the sexual act. It should be noted that our corroboration statute has been repealed. See Public Act 74-131. Section 53a-68 was modeled on § 130.15 of. the New York Penal Law as it then existed, and this fact forms the basis' for the defend
Prior to the enactment of § 53a-68, Connecticut did not require specific corroboration. See State v. Rybczyk, 133 Conn. 598, 600, 53 A.2d 295; State v. Chuchelow, 131 Conn. 82, 83, 37 A.2d 689; State v. Zimnaruk, 128 Conn. 124, 126, 20 A.2d 613. New York, however, had a long-standing rule prior to the enactment of § 130.15 requiring corroboration of sex offenses. See People v. O’Sullivan, 104 N.Y. 481, 10 N.E. 880; People v. Page, 162 N.Y. 272, 56 N.E. 750. Thus, the New York statute is an embodiment of their strict common-law rule, while our statute altered the common-law approach to prosecution of sex offenses. The cases interpretative of the New York corroboration statute are not binding on this court, despite the similarity in statutory language. We are in accord with the comment drafted by the commission to revise the criminal statutes as to the intended effect of § 53a-68: “Although this language was taken from the New York law, it is not meant to incorporate the New York rule that every element of the offense must be corroborated; rather, it was meant to require corroboration only of at least one element of the crime.”
The defendant next asserts that the court erred in failing to direct a verdict and later in failing to grant what appears to have been a motion in arrest of judgment on the claim that the identification by voice is, as a matter of law, insufficient. Several states have espoused such a principle; see Hender
The defendant finally assigns error in various portions of the court’s charge not previously discussed. The defendant offered alibi evidence and complained of the court’s charge as to any possible interest of alibi witnesses. This instruction was in conformity with that approved recently in State v. Cari, 163 Conn. 174, 181-82, 303 A.2d 7. The court also advised the jury that they might consider the importance to the defendant of the litigation in weighing credibility. Under our recent decisions in State v. Moynahan, 164 Conn. 560, 574, 325 A.2d
There is error in part, the judgment is affirmed except with regard to the third and fourth counts concerning the incidents of October 26, 1973, and, as to those counts only, the judgment is vacated and a new trial is ordered.
In this opinion House, C. J., Loiselle and Barber, Js., concurred.
In consideration for the victims of these crimes and because of the nature of the evidence produced, we will follow the practice adopted in State v. Oliver, 161 Conn. 348, 288 A.2d 81, and will not reveal the identity of the two women involved. Further, since no claim has been made that the conduct alleged to be deviate sexual intercourse, if proved, was not within the definition of that offense, the particulars of the act need not be discussed.
“[General Statutes] See. 53a-68. cobroboeation; exceptions. A person shall not be convicted of any offense under this part, or of an attempt to commit such offense, solely on the uncorroborated testimony of the alleged victim, except as hereinafter provided. Corroboration may be circumstantial. This section shall not apply to the offense of sexual contact in the third degree, nor to the offenses of prostitution, patronizing a prostitute, promoting prostitution or permitting prostitution.”
See comment of commission to revise the criminal statutes, Connecticut General Statutes Annotated § 53a-68:
“This section requires that, with some exceptions, some corroboration of the alleged victim’s testimony is necessary to conviction. This does not mean that there must be an eyewitness. The corroboration may be circumstantial. Although, this language was taken*576 from the New York law, it is not meant to incorporate the New York rule that every element of the offense must be corroborated; rather, it was meant to require corroboration only of at least one element of the crime. This provision would change prior Connecticut law, which does not require corroboration but which, in the absence of corroboration, requires the fact-finder to weigh the credibility of the complainant with care, particularly if there are improbabilities suggested by the complainant’s story or substantial controverting evidence.”
On the subject of corroboration the court charged, in part, as follows:
“In connection with this particular crime of deviate sexual intercourse, there is another statute or law which provides that a person shall not be convicted of this offense solely On the uncorroborated testimony of the alleged victim. This law was in force on October 20, 1973, when the crime is alleged to have occurred. The law also provides that the corroboration may be circumstantial, and I refer you to my explanation earlier as to what constitutes circumstantial evidence as contrasted with direct evidence. It is, therefore, necessary that at least one element of the crime of deviate sexual intercourse in the first degree be supported by some evidence, circumstantial or direct, other than the testimony of the victim in order to find the defendant guilty on that count. ... In any event, your inquiry should be, aside from the direct testimony of Miss [B] . . . herself, is there evidence either circumstantial or direct which tends to prove that the accused committed the crime with which he is charged? Such evidence would be sufficient corroboration if it is proof of the necessary element which must be proved, namely that Jonas was in fact the assailant as claimed by . . . [Miss B].”
Concurring in Part
(concurring and dissenting). I agree that there was prejudicial error in the refusal to separate the charges, but would also find error in the trial court’s charge to the jury.
The accused in this case testified on his own behalf. Thereafter the court charged the jury as follows: “Now, an accused person is not obliged to tafee the witness stand in his own behalf. On the other hand, he has a perfect right to do so, as this defendant has done. In weighing the testimony this accused has given to you, you should apply the same principles by which the testimony of other witnesses is tested. You may consider the importance to bim of the outcome of the trial and his motive on that
The defendant took exception to that charge, claiming that it offended his rights to due process by unduly singling out his testimony; by denigrating the weight to be accorded his testimony compared to that of other witnesses; and by depriving him of the presumption of innocence that is accorded to every criminal defendant. I am persuaded by the circumstances of the present case that that argument has merit and withdraw my earlier support for such a charge. See State v. Moynahan, 164 Conn. 560, 574, 325 A.2d 199, cert, denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219; State v. Guthridge, 164 Conn. 145, 151, 318 A.2d 87, cert, denied, 410 U.S. 988, 93 S. Ct. 1519, 36 L. Ed. 2d 186.
A defendant is presumed innocent until proven guilty; Coffin v. United States, 156 U.S. 432, 453, 15 S. Ct. 394, 39 L. Ed. 481; Deutch v. United States, 367 U.S. 456, 471, 81 S. Ct. 1587, 6 L. Ed, 2d 963; and if he does not testify, no comment can be made upon his failure to do so. Griffin v. California, 380 U.S. 609, 614, 85 S. Ct. 1229, 14 L. Ed. 2d 106. The charge in this case placed a premium on the defendant’s decision to testify by relegating his assertion of innocence to a less credible category of testimony than that of the complaining witnesses. By creating such a circumstance, the charge under consideration substantially undermines the presumption that the accused is innocent by permitting the jury to
The better rule is to limit the charge to a general statement of the elements by which all witnesses’ testimony should be weighed and not to single out the defendant’s testimony as worth less than that of any other witness. See, e.g., United States v. Brown, 453 F.2d 101, 107 (8th Cir.), cert, denied, 405 U.S. 978, 92 S. Ct. 1205, 31 L. Ed. 2d 253; Garvin v. State, 255 Ind. 215, 217-22, 263 N.E.2d 371; State v. Bester, 167 N.W.2d 705, 706-10 (Iowa); Hall v. State, 250 Miss. 253, 265-67, 165 So. 2d 345; State v. Finkelstein, 269 Mo. 612, 618-22, 191 S.W. 1002; Graves v. State, 82 Nev. 137, 138-42, 413 P.2d 503; Stewart v. State, 484 S.W.2d 77, 79 (Tenn. Crim. App.); and cases cited at 85 A.L.R. 577. See also Bryson v. State, 291 So. 2d 693 (Miss.); State v. Bruyere, 110 R.I. 426, 293 A.2d 311.
I would therefore find error, set aside the judgment on all four counts, and order new trials.
Reference
- Full Case Name
- State of Connecticut v. Levan P. Jonas
- Cited By
- 49 cases
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- Published