State v. Freeney

Callahan, J. The defendant, Burnest Freeney, was convicted by a jury of two counts of kidnapping in the first degree, in violation of General Statutes — 584 — §§ 53a-92 (a) (2) (A) and SSa-S,1 two counts of sexual assault in the first degree in violation of General Statutes §§ 53a-70 (a)2 and 53a-8, and one count of assault in the third degree in violation of General Statutes § 53a-61.3 He was sentenced by the trial court to concurrent ten year terms on the kidnapping counts, a concurrent one year term on the count of third degree assault, a concurrent term of eighteen years on the first sexual assault count and a consecutive term of twelve years on the second sexual assault count for a total effective sentence of thirty years. He has appealed directly to this court pursuant to General Statutes § 51-199 (b) (3). On appeal, the defendant raises four issues: (1) whether his conviction of two counts of kidnapping in the first degree violated the prohibition against double jeopardy contained in the Connecticut and United States constitutions; (2) whether the trial — 585 — court abused its discretion by admitting expert testimony regarding the reaction of assault victims to sexual and physical abuse; (3) whether the trial court abused its discretion by refusing to charge the jury that an inference other than guilt could be drawn from evidence of flight in light of the fact that the defendant was on parole; and (4) whether the trial court abused its discretion by excluding testimony that the defendant had waived his Miranda4 rights and had denied kidnapping and participating in the sexual assault of the victim. Because the defendant’s conviction and sentencing on the second count of kidnapping in the first degree violated his right against double jeopardy, we reverse the trial court’s judgment as to that count. With respect to the remaining counts, we affirm the judgment of the trial court. The facts leading up to the defendant’s arrest and convictions can be summarized briefly as follows. On March 28, 1991, at approximately 11:30 p.m. the victim went to the home of her friend, Denise, where she met the defendant for the first time. As the victim was leaving Denise’s home, the defendant asked if he could buy her a drink and she accepted. The two walked to a section of New Haven known as the “Mudhole,” where the defendant purchased wine and beer at a bar. They then went back to the victim’s one room apartment, which was on the third floor of a three-story building. Approximately one hour after the two had arrived at her apartment, during which time the defendant had ingested cocaine, the victim asked the defendant to leave. The defendant, however, refused to do so. He became hostile, struck the victim repeatedly and told her she was going to be his “bitch” and prostitute for him. The defendant then grabbed the vic — 586 — tim’s keys from her apartment door and ordered her to wear his gold chain that held a gold letter “B” to indicate she was his “bitch,” or prostitute. The defendant and victim thereafter went outside, where the defendant ordered the victim to open her coat to display her body. At one point he yelled, “$10, 15, 20—one way, round trip, get anything you want,” to a group passing by on bicycles. The defendant and the victim eventually arrived at a house near the “Mud-hole” where several men paid the defendant to have oral and vaginal sex with the victim in the backyard. Subsequently, while the defendant was distracted, the victim attempted to leave but two men grabbed her and yelled to the defendant that his “bitch” was trying to get away. The defendant slapped her and then took her back to her apartment. At the victim’s apartment, the defendant attempted to have intercourse with the victim. When the victim tried to dissuade him, the defendant exclaimed: “you’re my prostitute, you do what I say.” After sexually molesting but failing to have intercourse with the victim, the defendant locked her in her room, took her keys and left. The victim screamed but did not open the window to seek help from outside. She eventually fell asleep. One hour later, at approximately 6 a.m., the defendant returned to the victim’s apartment with an older man who, after paying the defendant $7, had sexual intercourse with the victim. Thereafter, the defendant escorted the man out and left the victim locked in her apartment for approximately one and one-half hours. The record does not indicate what the victim did during that period. Later, at approximately 10 a.m., the defendant brought the victim back to the “Mudhole,” where he again ordered her to expose herself to some men in the — 587 — area. While there, the victim saw her friend Denise, who asked her if anything was wrong. The victim replied “nothing.” Denise then told the defendant that the victim was coming with her but the defendant pulled the victim to him and replied that she was not going anywhere. The defendant struck the victim, causing her to bleed, and took her back to her apartment. Soon after the defendant and the victim had returned to the victim’s apartment, Denise arrived. The victim managed to talk to Denise alone in the bathroom where she asked Denise to divert the defendant’s attention so that she could escape. As the defendant accompanied Denise to the front door to see her out, the victim ran barefoot out the back door to a neighbor’s house and called the police. I The defendant argues, and the state concedes, that the defendant’s conviction and sentencing for the second count of kidnapping violates the prohibition against double jeopardy contained in the United States constitution5 and the Connecticut constitution.6 “The proper double jeopardy inquiry when a defendant is convicted of multiple violations of the same statutory provision is whether the legislature intended to punish the individual acts separately or to punish only the course of action which they constitute. Albernaz v. United States, 450 U.S. 333, 337, 101 S. Ct. 1137, 67 L. Ed. — 588 — 2d 275 (1981); Whalen v. United States, 445 U.S. 684, 691, 100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980).” (Emphasis in original.) State v. Rawls, 198 Conn. 111, 121, 502 A.2d 374 (1985). Section 53a-92 (a) (2) (A) makes it an offense to “[dbduct\ another person and ... (2) ... [to restrain] the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually . . . .” (Emphasis added.) Once the victim had been abducted and restrained with the requisite intent, common sense dictates that the defendant could not have abducted her again unless at some point she had become free of his control. “Because kidnapping involves interfering with the victim’s liberty, it continues until that liberty is restored.” State v. Gomez, 225 Conn. 347, 351, 622 A.2d 1014 (1993), citing State v. Jefferies, 304 S.C. 141, 145, 403 S.E.2d 169 (1991) and State v. Dove, 52 Wash. App. 81, 88, 757 P.2d 990 (1988). Kidnapping is a continuing crime. State v. Smith, 198 Conn. 147, 155, 502 A.2d 874 (1985). Because the facts clearly demonstrate that the victim was continually restrained after her abduction and was abducted with only one intent, to violate or abuse her sexually, the defendant committed only one crime of kidnapping. The state and the defendant agree that his conviction and punishment for the second count of kidnapping violated his right against double jeopardy. We concur. Under the circumstances, the proper remedy to cure the double jeopardy violation is to set aside the defendant’s conviction and his sentence for the second count of kidnapping. Contrary to the state’s view, the remedy is not to merge the convictions into a single conviction and vacate only the sentence for the second conviction. This case is not analogous to State v. Chicano, 216 Conn. 699, 584 A.2d 4254 (1990), cert. — 589 — denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991). In Chicano, where the defendant was convicted of greater and lesser included offenses resulting in a double jeopardy violation, we combined the convictions of the greater and lesser included offenses and vacated only the sentences for the lesser included offenses. We reasoned that if the convictions for the greater offenses of felony murder were later invalidated for any reason that did not affect the convictions of the lesser included offenses of manslaughter in the first degree, the manslaughter convictions could be “resuscitated and the defendant could be punished for those convictions.” Id., 725. Unlike Chicano, where the convictions of the greater and lesser offenses were justified by the facts, in the present case the facts surrounding the commission of the continuing crime of kidnapping supported only a single conviction of kidnapping as that crime is defined by our statutes. In Chicano, the presence of a factual basis for conviction of the lesser included offenses of manslaughter justified the continued vitality of the defendant’s convictions of those offenses. In the present case, no other valid conviction can be combined with the remaining conviction of kidnapping so as to be “resuscitated” in the event of a later invalidation of that conviction. We conclude that where there are multiple convictions of the same crime arising from a single continuing incident, the proper remedy, when there is a consequential double jeopardy violation, is the setting aside of both the surplus conviction and the penalty ascribable to it. II The defendant next claims that the trial court abused its discretion by allowing the state improperly to bolster the victim’s testimony by presenting experts to — 590 — testify that her disjointed, sparse version of the events given immediately after the incident and her behavior during her ordeal were not inconsistent with that of assault victims. We disagree. The state presented two experts who testified that victims of physical and sexual abuse manifest common patterns of behavior. The first expert was Craig Newton, a social worker and codirector of the victimology program at the Yale-New Haven Hospital emergency room, and an instructor at the Yale School of Medicine of courses in stress management and sexual assault protocol. Newton had questioned the victim when she had first been admitted into the emergency room at Yale-New Haven Hospital on March 29, 1991. He testified that it is not unusual for assault victims, in the early stages of their admission into the hospital, to be unable to recount the details of the trauma that brought them there, and that such victims often recount events out of chronological order. Newton further testified that it is common for victims subsequently to recall information that they did not remember immediately after the assault.7 The state also presented testimony by Barbara Moynahan, a psychotherapist and professor of nursing, who founded the victimology program at Yale-New Haven Hospital. In response to hypothetical questions posed — 591 — by the state, Moynahan testified that it would be consistent with her experience in working with victims for a woman who had been sexually assaulted to walk down a public street in the company of her assailant without calling out for help because she may fear the assailant. Moynahan also testified that it would be consistent with her experience for a victim of sexual assault who had been locked in a room by her assailant to go to sleep as an emotional “coping mechanism,” rather than screaming out the window and risking that her cries might be overheard by her assailant. Expert testimony should be admitted when: “(1) the witness has a special skill or knowledge directly applicable to a matter in issue,8 (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.” State v. Rodgers, 207 Conn. 646, 651, 542 A.2d 1136 (1988); State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986). We review claims of improper admission of expert testimony under an abuse of discretion standard. State v. Kemp, supra; State v. Girolamo, 197 Conn. 201, 214, 496 A.2d 948 (1985); State v. Biller, 190 Conn. 594, 617,462 A.2d 987 (1983). The present case is controlled by our recent decision in State v. Borrelli, 227 Conn. 153, 629 A.2d 1105 (1993). In Borrelli, before trial the victim gave the police a written sworn statement that she had been tied up and sexually abused by the defendant. She later contradicted her statement at trial. Id., 158-59. To explain her inconsistent testimony, the state presented an expert, Evan Stark, a sociologist, who testified that battered women will often recant earlier accusations in an attempt to mend their relationship with the batterer. Id., 168. On appeal, the defendant argued that — 592 — Stark’s testimony should not have been admitted. We concluded, however, that “Stark’s expert testimony was properly admitted to assist the jury in understanding, not whether [the victim] was a credible witness on the witness stand, but whether her conduct . . . was consistent with the pattern and profile of a battered woman. . . . [T]he expert testimony did not invade the province of the jury in determining the credibility of witnesses.” (Citation omitted; internal quotation marks omitted.) Id., 174. The present case is indistinguishable from Borrelli. At trial, the victim testified that the defendant had restrained her, had repeatedly beat her, and had forced her to engage in intercourse with strangers. The psychology of a victim of such abuse, is “in all likelihood . . . beyond the jury’s experience and knowledge.” Id., 173-74 (explanations for why a victim of sexual abuse would recant accusation are outside jury’s experience); see also, State v. Spigarolo, 210 Conn. 359, 378, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989) (trauma experienced by minor victims of sex abuse is “beyond the understanding of the average person”). The sole purpose of the experts’ testimony was to establish that the victim’s behavior was generally consistent with that of a victim of sexual or physical abuse. The distinction between testimony about the general behavior of victims and an opinion as to whether the instant victim is telling the truth is critical. See State v. Borrelli, supra, 173 (“there is a ‘critical distinction between admissible expert testimony on general or typical behavior patterns of . . . victims and inadmissible testimony directly concerning the particular victim’s credibility’ ”), quoting State v. Spigarolo, supra, 379. In this instance, neither expert gave an opinion as to whether this particular victim had told the truth or whether she had in fact suffered physical or sexual — 593 — abuse. The expert testimony that a victim of sexual or physical abuse might not necessarily attempt to escape, and might recount the circumstances of the abuse in a disjointed fashion, could have assisted the jury substantially in determining the central issue in the case— whether the defendant had restrained and assaulted the victim against her will. Accordingly, we conclude that the admission of the expert testimony was within the trial court’s discretion. Ill The defendant next claims that the trial court improperly instructed the jury that evidence of the defendant’s flight could be used to infer consciousness of guilt, because the trial court did not also inform the jury that an inference other than consciousness of guilt could be drawn from that evidence. Specifically, the defendant claims that the court should have informed the jury that such evidence could have had an innocent explanation because the defendant was on parole and was avoiding the police for that reason. We disagree. The trial court instructed the jury that “[fjlight, when unexplained, can indicate consciousness of guilt if the facts and the circumstances support it. Flight may be proven by efforts of the police to locate the defendant, that proof must be supported by either direct or inferential evidence that the defendant knew he was wanted by the police. Evidence that members of the defendant’s family knew he was being sought or that he failed to report to work following the alleged crimes have been found sufficient to infer flight by the defendant.” The flight instruction given by the trial court is consistent with our case law. “We have stated: [fjlight, when unexplained, tends to prove a consciousness of guilt. . . . Flight is a form of circumstantial evidence. Generally speaking, all that is required is that the evidence have relevance, and the fact that ambiguities or — 594 — explanations may exist which tend to rebut an inference of guilt does not render evidence of flight inadmissible but simply constitutes a factor for the jury’s consideration.” (Citation omitted; internal quotation marks omitted.) State v. Holloway, 209 Conn. 636, 651-52, 553 A.2d 166, cert. denied, 490 U.S. 1071,109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989). “The fact that the evidence might support an innocent explanation as well as an inference of a consciousness of guilt does not make an instruction on flight erroneous.” State v. Wright, 198 Conn. 273, 281, 502 A.2d 911 (1986). Moreover, “[t]he court was not required to enumerate all the possible innocent explanations offered by the defendant.” Id. While the court’s charge on flight might have included a reference to the fact that the defendant was on parole and the inferences that could be drawn therefrom, we cannot say that the trial court’s refusal to charge the jury to that effect was improper. IV Finally, the defendant argues that the trial court abused its discretion by excluding testimony that, after he was apprehended, the defendant waived his Miranda rights and admitted that he struck the victim but denied kidnapping her or participating in sexual assaults upon her. The defendant claims that such evidence should have been admitted under the state of mind exception to the hearsay rule, in order to demonstrate that there were reasons, other than the defendant’s guilty state of mind about the kidnapping and sexual assault of the victim, for the defendant to avoid the police. We disagree. At trial, the defendant attempted to elicit from the arresting officer that the defendant had in fact waived his Miranda rights and had freely answered all of the officer’s questions. The defendant also sought to introduce the substance of his statement wherein he had — 595 — admitted only that he had struck the victim. When the state objected, the defendant argued that he wanted to admit the evidence to demonstrate that “there may have been other reasons, mainly that he was in violation of the law . . . for him avoiding the police.” The court sustained the state’s objections. The defendant’s statements after his arrest are inadmissible hearsay and may not be offered to demonstrate his state of mind before his arrest. Statements by an accused “after the act, stating the past intent or motive at the time of the act” are inadmissible under the state of mind exception to the hearsay rule. (Emphasis in original.) 6 J. Wigmore, Evidence (4th Ed. Chadbourn Rev. 1976) § 1732 (4); see also State v. Cato, 21 Conn. App. 403, 408, 574 A.2d 240, cert. denied, 215 Conn. 874, 576 A.2d 547 (1990) (“[a]n out-of-court statement made after the completion of a criminal act is not admissible under the state of mind exception as to the intent or motive underlying that completed act”), citing 6 J. Wigmore, supra, and General Motors Acceptance Corp. v. Capitol Garage, Inc., 154 Conn. 593, 227 A.2d 548 (1967). In the present case, the defendant sought to introduce postarrest statements that he had committed an assault but not a kidnapping or a sexual assault to indicate that he had fled from the police because he had struck the victim. Such statements do not fall within the state of mind exception to the hearsay rule. The defendant argues that our decision in State v. Jones, 205 Conn. 723, 730, 535 A.2d 808 (1988), supports his claim of admissibility. In Jones, we concluded that out-of-court threats against the defendant by the victim’s family could be admitted to explain why the defendant fled from the police. Id., 731. The present case is readily distinguishable. Whereas Jones involved statements made by a third party before the defendant’s arrest, which would have impacted on the defend — 596 — ant’s state of mind prior to the arrest, the present case involves the defendant’s postarrest statements regarding his own state of mind prior to the arrest. The trial court did not abuse its discretion in excluding the defendant’s statements in this case. The judgment of the trial court is affirmed except with respect to the second count of kidnapping; with respect to that count, the case is remanded to the trial court with direction to render judgment of not guilty thereon and to vacate the defendant’s conviction and sentence therefor. In this opinion Peters, C. J., Borden and Lavery, Js., concurred. Footnotes [1] General Statutes § 53a-92 (a) provides in relevant part: “A person is guilty of kidnapping in the first degree when he abducts another person and ... (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually . . . .” General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.” [2] General Statutes § 53a-70 provides in relevant part: “sexual assault IN THE FIRST DEGREE: CLASS B FELONY: ONE YEAR NOT SUSPENDABLE. (a) A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .” [3] General Statutes § 53a-61 provides: “assault in the third degree: CLASS A misdemeanor, (a) A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or (2) he recklessly causes serious physical injury to another person; or (3) with criminal negligence, he causes physical injury to another person by means of a deadly weapon, a dangerous instrument or an electronic defense weapon.” [4] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). [5] The fifth amendment to the United States constitution provides in relevant part: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” The constitutional provision prohibiting double jeopardy is applicable to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). [6] The constitution of Connecticut, article first, § 9, provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.” The due process guarantees of article first, § 9, include protection against double jeopardy. Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962). [7] Newton’s testimony was as follows: “Q. Is it common to have someone in the early stages of their admission to your hospital, as was this victim, is it common for that person not to be able to tell you all the details of the event that brought them there? “A. Yes. “Q. Okay. Is it common for them to tell you, what it is that they tell you, out of chronological sequence? “A. Yes. “Q. . . . And is it common for portions of the events to come to them at a later time as they proceed through the trauma and the recovery from the trauma? “A. Very common.” [8] There is no claim that the experts were not qualified to testify, and the substance of their testimony was never challenged at trial or on appeal.