State v. William L.

11 A.3d 1132

126 Conn.App. 472

STATE of Connecticut

v.WILLIAM L.¹

No. 31383.

Appellate Court of Connecticut.

Argued Nov. 9, 2010.

Decided Feb. 8, 2011.

Elizabeth M. Inkster, senior assistant public defender, with whom was Joseph Abraham, special public defender, for the appellant (defendant).

Kathryn Ward Bare, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, andRoger S. Dobris, senior assistant state's attorney, for the appellee (state).

HARPER, LAVINE and FLYNN, Js.

LAVINE, J.

The defendant, William L., appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in a spousal relationship in violation of General Statutes § 53a-70b. On appeal, the defendant claims that the trial court impermissibly admitted into evidence (1) testimony regarding a laboratory report in violation of Melendez-Diaz v. Massachusetts, --- U.S. ----, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), and (2) testimony in violation of the constancy of accusation doctrine. We affirm the judgment of the trial court.

Given the evidence presented at trial, the jury reasonably could have found the following facts. On September 5, 2007, the defendant resided in an apartment belonging to his estranged wife (victim),² who permitted him to live there in a separate bedroom because he had no money and no place to live.³ The couple's daughter and the victim's son from a prior relationship also lived in the apartment.

On the morning of September 5, 2007, the victim walked her daughter to the bus stop for the first day of school, shopped for groceries at Shaw's Supermarket (Shaw's) and returned to the empty apartment at approximately 11 a.m. The defendant arrived ten minutes later and entered the kitchen. He told the victim that he had been looking for work and was supposed to start a job later that day. The victim informed the defendant that she was not happy and that he had three months to find his own place to live. The defendant responded with anger. He and the victim discussed their relationship and the prospect of separating. Before entering the living room, the defendant threw his keysat the victim and told her to watch her back. The victim went into her bedroom and shut the door.

A few moments later, the defendant entered the victim's bedroom without warning and struck her with the back of his hand, knocking her onto her bed. The victim testified that the defendant had a crazed look about him and punched her in the face as she lay on her side. The victim attempted to resist the defendant's assault, testifying that she "wasn't going down without a fight...." The defendant, however, overpowered her by pressing his right forearm against her neck and telling her not to move. The defendant also told the victim that he would kill her if he did not get what he wanted, which the victim understood to mean to have sexual intercourse with him. In an effort to let the defendant calm down, the victim told him that she was menstruating and asked if she could get a towel because she did not want the blanket to be soiled. The defendant agreed and released the victim from his hold. When the victim got up, the defendant did as well and positioned himself between the victim and the door, while the victim placed a towel on the bed. The defendant told the victim, "You know what you have to do; do it." The victim sat there without moving and told the defendant that she did not want to have sex. The defendant became enraged.

The defendant held a knife to the victim's neck and said, "I'll kill you.... [Y]our baby [is] going to find you either dead or like a vegetable." The victim lay down on the bed because she did not wantto die. The defendant asked the victim, "Do you want to go ahead and give me any," to which she replied, "no...." The defendant ripped the victim's underwear and sanitary pad from under her dress, threw them on the floor, pulled down his pants and inserted his penis into her vagina. The assault lasted between two and five minutes, during which time he ejaculated. When thedefendant was finished, he cleaned his penis, which was covered with menstrual blood, with a blue towel. Before he left the room, the defendant turned to the victim, smirked, and said, "don't jump out the window," and that he would be back.

When the victim heard the defendant leave the apartment, she got up, put on a clean sanitary napkin and underwear, straightened the bed and attempted to clean the carpet, which had been soiled by the sanitary pad thrown on the floor. She telephoned her son and told him that she had been raped. Her son arrived moments later. The victim did not telephone the police because she did not feel safe in her house and was afraid that the defendant would return and hurt her.

After he left the apartment, the defendant walked to Shaw's and approached Douglas Harkins, a police sergeant with the New Haven police department who was working a private duty assignment at Shaw's. The defendant told Harkins that he wanted to be arrested. When Harkins asked the defendant why he wanted to be arrested, the defendant stated that he was having trouble finding a job, his marriage was in trouble and that he had a recent argument with his wife. The defendant further stated that he had "popped" his wife and forced her to have sexual intercourse with him.⁴ Harkinsasked about the victim's welfare and where she lived. He then called police dispatch and had an officer sent to the victim's apartment.

Paul Cavalier, a New Haven police officer, responded to the apartment where he found the victim and her son, who were both visibly upset. When Cavalier informed the victim that he had received a report of domestic violence, the victim told him that she had been raped. Cavalier observed slight swelling on the right side of the victim's face. Two additional police officers arrived and questioned the victim. Thereafter, she was transported to a nearby hospital emergency room, where she was examined and evidence was collected in a rape kit.

Louis Rivera, a New Haven police officer, responded to Shaw's where he arrested the defendant and transported him to the police station. Before being transported, the defendant handed a knife to Michael Towles, a private security guard working at Shaw's, stating, "I better not take this with me." At the police station, after being informed of his constitutional rights, the defendant agreed to give a statement. Renee J. Luneau, a detective,asked the defendant some preliminary questions. She testified, however, that when she turned on a recording device, the defendant told her that he did not want the interview recorded, stating, "what's the point, I did it, I'm guilty." Luneau further testified that the defendant told her that "rather than going somewhere else [for sex], he took it from" the victim and that he "wanted to scar [the victim's] face."

The defendant did not present evidence at trial but argued to the jury that he had consensual sexual intercourse with the victim. After the jury found the defendant guilty of sexual assault in a spousal relationship, ⁵the court sentenced him to fourteen years incarceration and six years of special parole. This appeal followed.

I

The defendant first claims that the court impermissibly admitted into evidence testimony regarding a laboratory report in violation of the hearsay strictures governing the confrontation clause as set forth in Melendez-Diaz v. Massachusetts, supra, 129 S.Ct. at 2537.⁶Melendez-Diaz wasdecided by the United States Supreme Court subsequent to the defendant's conviction. We need not decide whether the dictates of Melendez-Diaz were violated at the defendant's trial because we conclude that, even if the defendant's right to confrontation was violated, any alleged violation was harmless beyond a reasonable doubt.

The following additional facts and procedural history are relevant to the defendant's claim. When the victim was taken to the hospital, Heather Gilluly, an emergency department nurse, examined the victim and collected evidence, including vaginal swabs, with a rape kit. The rape kit was sent to the state police forensic laboratory in Meriden, where the police department refers evidence for analysis. At trial, the state asked Luneau about the results of the laboratory testing of the rape kit.

Initially, the defendant objected on the ground of hearsay to the state's question, "[d]o you know what the lab report stated concerning the vaginal smear taken by [n]urse Gilluly of [the victim]?" The court sustained the defendant's objection. Thereafter, the state questioned Luneau to lay a foundation to enter evidence under the business record exception to the hearsay rule, namely, that the police department routinely relies on reports from the state police forensic laboratory.Again, the defendant objected, claiming that the foundation was inadequate. In voir dire, the defendant asked Luneau about her participation, or lack thereof, in the preparation of the laboratory report and contended that Luneau could not testify about the results of the testing because she was not involved in the testing. Again, the state claimed that the report was admissible under the business record exception to the hearsay rule. After consulting § 8-4 of the Connecticut Code of Evidence, the defendant conceded that the report was admissible and withdrew his objection. Thereafter, the state asked Luneau what the testing demonstrated about the vaginal smear. Luneau testified that spermatozoa were identified in the vaginal smear.⁷

On appeal, the state contends that the defendant's claim is not reviewable because he waived it by withdrawing his foundation objection at trial. The defendant, however, argues that his claim was preserved because his objection to Luneau's lack of familiarity with the laboratory testing was the functional equivalent of a confrontation clause objection. Moreover, he argues, new constitutional rights are to be applied...