Opposition Brief — Hickey v. Connecticut

9@-1 10 Supreme Court, U.S,

FILED

; JUN 4 91

\ sate OF TNE CER

_

No.

In The

Supreme Court of the United States

October Term, 1990

ee “

JAMES F. HICKEY,

Petitioner,

V.

STATE OF CONNECTICUT,

Respondent.

+

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI TO THE APPELLATE COURT

OF THE STATE OF CONNECTICUT

e

Counsel of Record:

CAROLYN K. LONGSTRETH

Assistant State's Attorney

Appellate Unit

Office of the Chief State's

Attorney

340 Quinnipiac Street

P.O. Box 5000

Wallingford, CT 06492

(203) 265-2373

Il.

QUESTIONS PRESENTED

WHETHER THE PETITIONER'S SIXTH AMEND-

MENT CLAIM THAT THE INFORMATION WAS

IMPERMISSIBLY VAGUE AS TO THE TIME OF

THE OFFENSE IS WORTHY OF CERTIORARI

REVIEW?

WHETHER THIS COURT HAS JURISDICTION TO

REVIEW THE PETITIONER'S CLAIM THAT AN

EVIDENTIARY ERROR WAS MADE AT HIS

TRIAL?

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED ... +... + « « i

TABLE OF AUTHORITIES .. «© e+ «© ws « Ai

Sinaomon. OF THE CAGE « « + «© © «8 8 8 1

A. Procedural RiStery sls <- 1

B. Facts Relating To The

O©rftenses . « « ++ es « «4% 2

Cc. Facts Pertinent To The

Petitioner's Claims... . 2

i. The Sixth Amendment

CIOS » «4 «sb eoanne 2

Ze The challenge to the

limiting instruction

on uncharged conduct 4

D. Petitioner's Claims On

Appeal And Disposition

Reached By The Connecti-

cut Appellate Court... . 6

i. Sixth Amendment claim 6

Ze Limiting instruction

on uncharged incident 8

REASONS TO DENY PReSAaaun «2 7S) 2) 9

A. Petitioner's Sixth Amend-

meme Cliaim «id *& © Eee g

B.

CONCLUSION

Limiting Instruction On

Uncharged Conduct

14

16

TABLE OF AUTHORITIES

PAGE

CASES

Coy v. Iowa, U.S. , 1408 $.Ct.

27968 (1968) . .«. «© © «© © « « . as

Rosen _v. United States, 161 U.S. 29

CO PP PE a a ee ee

Russell v. United States, 369 U.S. 749

> 32 errata as eer |

State v. Blasius, 211 Conn. 455, 559

Me BT ae ee ee er eee

State v. Hickey, 23 Conn. App. 712,

584 A.2d 473 (1991) 1

State v. Laracuente, 205 Conn. 515,

534 A.2d 882 (1987), cert. denied, 485

= oy) rr rer a a ee

State v. Mancinone, 15 Conn. App. 251,

545 A.2d 1131, cert. denied, 209 Conn.

818, 551 A.2d 757 (1988), cert. denied,

489 U.S. 1017 (1989) or ae ee ee ee ee ee ee ee

State v. Saraceno, 15 Conn. App. 222,

545 A.2d 1116 (1988) er on a 7

State v. Spigarolo, 210 Conn. 359, 556

A.2d 112, cert. denied, u.s. ,

110 S.Ct. 322 (1989) ee ee ee ee ee

Texas v. Mead, 465 U.S. 1041 (1984) . . 15

ii

United States v. Campbell, 732 F.2d

1G47 (igs Cit. WOOK) os sks , 10

United States v. Celaya-Garcia, 583

F.2d 210 (Sth Cir. 1978) a ° 11

United States v. Cruickshank, 92 U.S.

588 (1876) . Aiur “ge ; —

United States v. Giles, 756 F.2d 1085

(5th Cir. 1985) ee : 23

United States v. Johnson, 268 U.S. 220

(3985) 5 : : ; : : 15

United States v. Morris, 700 F.2d 427

(ist. Cir. 3983) ‘+. s 40, BA

United States v. Nunez, 668 F.2d 10

(lst Cir. 1981) 11

United States v. Roman, 728 F.2d 846,

(7th Cir. 1984), cert. denied, 466

U.S. 2360 (1984) ° 20, Aaa, i2

United States v. Tavelman, 650 F.2d

1133 (9th Cir. 1981) . : 10

Wong Tai _v. United States, 273 U.S. 77

(1927) ; ‘oe & aoe 10

iii

CONSTITUTIONAL PROVISIONS

U.S. Const. Amend. VI... .. . . passim

ews GONSBT. ACS. 3, Sec. 2, Cle 1. -« y OF

STATUTES

Connecticut General Statutes §53-21 .. 1

Connecticut General Statutes §53a-71 . 1

423 U.S.C. 1257 ‘e+ © « @% Se © he, @) ee

RULES OF COURT

F. Rule Crim. Proc. 52

noe

ND

Rules of the Supreme Court, Rule 10 14, 9

lv

CONSTITUTIONAL PROVISIONS INVOLVED

Sixth Amendment to the United States

Constitution.

In all criminal prosecutions, the

accused shall enjoy the right ...

to be informed of the nature and

cause of the accusation

STATUTORY PROVISIONS INVOLVED

Connecticut General Statutes §53a-71

(Rev. to 1989).

Sexual assault in the second degree:

Class cC felony: Nine months not sus-

pendible.

(a) “A person is guilty of sexual

assault in the second degree when such

person engages in sexual intercourse with

another person and such other person is (1)

under sixteen years of age ...".

Connecticut General Statutes §53-21.

Injury or risk of injury to, or impairing

morals of, children.

tenn

Connecticut General Statutes §53-21.

Injury or risk of injury to, or impairing

morals of, children.

Any person who wilfully or unlawfully

causes or permits any child under the age

of sixteen years to be placed in such a

situation that its life or limb is endan-

gered, or its health is likely to be in-

jured, or its morals likely to be impaired,

or does any act likely to impair the health

or morals of any such child, shall be fined

not more than five hundred dollars or inm-

prisoned not more than ten years or both.

SUPREME COURT RULES INVOLVED

Rule 10(1)(c). Considerations Govern-

ing Review on Writ of Certiorari.

-1. A review on writ of certiorari is

not a matter of right, but of judicial

discretion. A petition for a writ of certi-

orari will be granted only when there are

vi

special and important reasons therefor. The

following, while neither controlling nor

fully measuring the Court's discretion,

indicate the character of reasons that will

be considered: ...

(c) When a state court or a United

States court of appeals has decided an

tupertent question of federal law which has

not been, but should be, settled by this

Court, or has decided a federal question in

a way that conflicts with applicable decis-

ions of this Court.

OPINION BELOW

The opinion of the Connecticut Appel-

late Court is printed at 23 Conn. App. 712

’

584 A.2d 473 (1991).

vil

ane wih Pe

Wee stad

i

a

4

STATEMENT OF THE CASE

A. Procedural History

The petitioner was charged with one

count each of sexual assault in the second

degree; General Statutes §53a-71(a) (1); and

risk of injury; General Statutes §53-21;

arising out of an act of sexual intercourse

with the teenage victim. After a jury

trial, the petitioner was convicted on both

counts. He was subsequently sentenced to a

term of imprisonment of eight years on each

count, the two sentences to run concurrent-

iy. R. at ii.

Petitioner appealed his convictions to

the Connecticut Appellate Court. That court

unanimously affirmed. State v. Hickey, 23

Conn. App. 712, 584 A.2d 473 (1991). The

Connecticut Supreme Court denied certifica-

tion to review the case on February 5,

1991.

B. Facts Relating To The Offenses

In July, 1988, the petitioner was the

live-in boyfriend of the victim's grand-

mother. On an unspecified date during that

month, the victim and her two siblings

spent the day with their grandmother at her

East Hartford apartment. While the grand-

mother and the victim's siblings swam in

the apartment complex swimming pool, the

victim and the petitioner went upstairs to

the apartment. As the victim sat on a re-

clining chair, the petitioner partially

removed her bathing suit and had sexual

intercourse with her.

e. Facts Pertinent To The Petition-

er's Claims

Ze The Sixth Amendment claim

The information on which the state

proceeded to trial alleged that the peti-

tioner engaged in sexual intercourse with

a person under the age of sixteen years "on

Or about July, 1988."

Before trial, defense counsel request-

ed more specific information as to the date

of the offense and claimed that the state's

failure to particularize the date of the

offense deprived him of a possible alibi.

The trial court denied the petitioner's

request.

At trial, which took place in October,

1989, the victim testified that she was

then 15 years old. She also testified that

the incident occurred during the summer of

1938 and that she could not remember the

day or month.

About a month after the incident, the

victim discussed the incident with a friend

and used a pregnancy test. On August 23,

1988, after an additional week had passed,

she contacted the police.

*

me

The petitioner and the victim's grand-

mother both testified that they remembered

the day the victim and her siblings came to

visit and swam in the pool. The petitioner

stated that it was in the middle of July

and admitted being in the apartment with

the victim that day. He denied having sexu-

al intercourse with her.

2 The challenge to the limit-

ing instruction on uncharged

conduct

The petitioner was initially charged

with two counts each of sexual assault in

the second degree and risk of injury, aris-

ing out of two separate incidents of sexual

intercourse with the victim. Before trial,

the prosecution withdrew the charges relat-

ing to the earlier incident and the trial

court instructed the state not to refer to

it or elicit-testimony about it.

However, when defense counsel asked

the victim during cross-examination when

the charged incident took place, she

stated, "Umm, what do you mean by that

question? The first time? Or the last

time?". Defense counsel requested a sidebar

conference, but no record exists as to what

transpired. Then, defense counsel proceeded

with questioning on the July, 1988 inci-

dent. .

During its deliberations, the jury

sent out a note requesting to have the

victim's references to prior sexual contact

read aloud. The victim's comment quoted

above was the only such reference found.

Defense counsel objected to the

court's allowing the reference to be re-

read. The trial court overruled the objec-

tion, reasoning that the petitioner was not

entitled to have the evidence stricken, in

effect, when he failed to object or move to

strike it at the time it was admitted.

Defense counsel later admitted to the court

that his failure to move to strike the

victim's comment was a strategic decision

not to highlight the other incident in the

minds of the jurors.

The petitioner next asked for a limit-

ing instruction. The victim's remark was

reread to the jurors nthe the trial court

cautioned them that the only question be-

fore them was whether the petitioner had

sexual intercourse with the victim on the

date charged.

D. Petitioner's Claims On Appeal And

Disposition Reached By The Con-

necticut Appellate Court

1. Sixth Amendment claim

On appeal, the petitioner argued that

the trial court's denial of his request for

additional information as to the time of

the incident violated his Sixth Amendment

right to be apprised of the nature of the

offense. The Appellate Court ruled that the

state's allegation that the offense took

place on or about July, 1988 complied with

the Sixth Amendment because it was as spec-

ific as the available evidence warranted

and had a definite beginning and end. 23

Conn. — at 715, 584 A.2d at 475. It cited

a number of Connecticut decisions which

have applied a similar analysis under the

Sixth Amendment. Id., citing State vv.

Blasius, 211 Conn. 455, 461, 559 A.2d 1116

(1989); State v. Spigarolo, 210 Conn. 359,

386, 556 A.2d 112, cert. denied, 0.8.

’ 110 S.Ct. 322 (1989); State v.

Laracuente, 205 Conn. 515, 519, 534 A.2d

882 (1987), cert. denied, 485 U.S. 1036

(1988); State v. Saraceno, 15 Conn. App.

222, 237, 545 A.2d 1116 (1988); State v.

Mancinone, 15 Conn. App. 251, 257, 545 A.2d

1131, cert. denied, 209 Conn. 818, 551 A.2d

757 (1988), cert. denied, 489 U.S. 1017

(1989).

2. Limiting instruction on un-

charged incident

The petitioner raised several claims

relating to the victim's reference to an-

other incident of sexual intercourse. He

argued that the trial court was required,

sua sponte, to strike the comment or give

a limiting instruction, that the court

erred in allowing the reference to be re-

read to the jury and that the court failed

to give a proper limiting instruction at

the time of the rereading.

The Appellate Court rejected all of

the petitioner's claims. It ruled that a

correct limiting instruction had been given

when the testimony was reread to the jury.

23 Conn. App. at 718-19, 584 A.2d at 477.

REASONS TO DENY PETITION

A. Petitioner's Sixth Amendment

Claim

The petitioner has failed to assert or

demonstrate any conflict among the circuits

or state courts regarding Sixth Amendment

requirements for specificity in the charg-

ing document as to the time of the offense.

Accordingly, the issue does not qualify for

certiorari under Rule 10(1)(b).

Indeed, the interpretation of the

Sixth Amendment in the Connecticut cases

cited by the Appellate Court is entirely in

accord with settled law. Federal cases have

consistently stated that an information

affords proper Sixth Amendment notice if it

adequately apprises the defendant of the

offense so that he may prepare his defense

and, in the event of a future prosecution,

assert the conviction as a bar for double

jeopardy purposes. Rosen v. United States,

161 U.S. 29 (1896); United States v. Roman,

728 F.2d 846, 850 (7th Cir. 1984), cert.

denied, 466 U.S. 2360 (1984); United States

v. Giles, 756 F.2d 1085, 1087 (5th Cir.

1985).

The charging document must set forth

each of the elements of the offense; id.;

United States v. Tavelman, 650 F.2d 1133

(9th Cir. 1981); and identify the time and

place with reasonable certainty. Wong Tai

v. United States, 273 U.S. 77 (1927); Rosen

v. United States, supra; United States v.

Cruickshank, 92 U.S. 588 (1876). The time

of the offense may be alleged in general

terms as long as the date is not material

to an element. United States v. Campbell,

732 F.2d 1017 (ist Cir. 1984); United

10

States v. Morris, 700 F.2d 427 (lst. Cir.

1983).

Federal courts have upheld the validi-

ty of indictments alleging time periods as

long or longer than that charged in this

case. See e.g. United States v. Roman,

Supra (ll-year period); United States v.

Giles, supra (16 month period); United

States _v. Nunez, 668 F.2d 10 (1st Cir.

1981) (1-year period).

Further, where the date of an offense

is not material to the elements, any claim

of error must be accompanied by a satisfac-

tory showing of prejudice. United States v.

Morris, supra, United States v. Celaya-

Garcia, 583 F.2d 210, 211 (5th Cir. 1978) .'

"In general, it is not the practice of

federal courts to reverse convictions on

the basis of technical defects which cause

no prejudice at trial. Russell v. United

States, 369 U.S. 749 (1962); United States

(continued...)

li

A bald assertion that an alibi might have

existed if the specific date were known

does not suffice. Id.

In this case, the Connecticut Appel-

late Court correctly determined that the

notice afforded in the information was

sufficient under the Sixth Amendment.

First, the date was not material to either

offense--despite the necessity of proving

that the victim was less than 16 years old

in July, 1988--since she was only 15 at the

time of trial, October, 1989. In addition,

the state limited itself to the defined

period of July, 1988 and its failure to

specify a more exact date was attributable

to the victim's inability to recall any

'(.. continued)

v. Celaya-Garcia, 583 F.2d 210, 211 (5th

Cir. 1978); United States v. Roman, 728

F.2d 846, 850 (7th Cir. 1984); F. Rule

Crim. Proc. 52.

12

more precise information. This lack of

recollection of the date is not unusual or

unreasonable given the delay of several

weeks before the victim discussed the inci-

dent with anyone. See generally Coy v.

Towa, _—S@sU. SS. _s,« «108 S.CK. 2798, 2803-

04 (1988) (O*Connor, J., concurring) (recog-

nizing difficulties of prosecuting cases of

child abuse because of victins' immaturi-

ty). Under these circumstances, the Appel-

late Court properly found the notice given

reasonable under the Sixth Amendment.

Furthermore, the record of this case

conclusively rebuts any claim of prejudice.

The testimony concerning the timing of the

pregnancy test and the victim's August 23

report to the police, relative to the of-

fense, narrowed the time period considerab-

ly. In addition, the petitioner's own ad-

mission that he was in the apartment with

13

the victim on the day in question precludes

the existence of any alibi.

Accordingly, the conclusion of the

Connecticut Appellate Court that the peti-

tioner failed to demonstrate how the exact

date of the offense was material or neces-

sary to the defense was entirely correct

and consistent with federal law. The peti-

tioner's Sixth Amendment Claim is not

worthy of certiorari review.

B. Limiting Instruction On Uncharged

Conduct

This claim fails to qualify for certi-

orari bacsune it presents no federal ques-

tion, a jurisdictional prerequisite. U.S.

Genes. ARC. 3, 860. 2, Cis 37. 26 U.8-C.

1257. See also Rules of the Supreme Court,

Rule 10 (1) (c).

The necessity or adequacy of a limit-

ing instruction relating to the victim's

14

comment about another incident is purely

evidentiary and thus raises only an issue

of state law. Since states are not bound to

follow the federal rules of evidence, the

petitioner's citation thereto is misplaced.

This Court has stated that it does not

grant certiorari to review evidence and

discuss specific facts. Texas v. Mead, 465

U.S. 1041 (1984), quoting United States v.

Johnson, 268 U.S. 220, 227 (1925). Accord-

ingly, the petitioner's claim regarding the

reference to an uncharged incident does not

qualify for certiorari.

15

CONCLUSION

For the foregoing reasons, The State

of Connecticut respectfully urges this

Court to deny the petition for a writ of

certiorari.

Respectfully submitted,

STATE OF CONNECTICUT

COUNSEL OF RECORD:

CAROLYN K. LONGSTRETH

Assistant State's Attorney

Appellate Unit

Office of the Chief State's

Attorney

16