Appendix — Green v. Connecticut

ey Office -Suoreme Court, US.

ue 2, FILED |

84-347.

NOVY 24 1984

ALEXANOCR & STEVAS,

IN THE | CLERK

SS. oe

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

DEMETRIUS GREEN,

Petitioner

V.

STATE OF CONNECTICUT,

Respondent.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE

STATE OF CONNECTICUT

SUE L. WISE

WILLIAMS & WISE

51 Elm Street

New Haven, CT 06510

Counsel for Petitioner

November 19, 1984

APPENDIX

TABLE OF CONTENTS

Page

APPENDIX A (Connecticut Supreme

Court Decision)....la-52a

APPENDIX B (Order Denying Motion

to Reargue)........lb-2b

APPENDIX A

CONNECTICUT SUPREME COURT DECISION

STATE OF CONNECTICUT

Vv.

DEMETRIUS GREEN

(11147)

PETERS, HEALEY, SHEA, GRILLO

and BIELUCH, Js.

Convicted of the crime of attempted

sexual assault in the first degree, the

defendant appealed. He claimed, inter

alia, that the state "suppressed" a

photograph which the victim had, on the

night of the incident, identified as that

of a person who “looked like" her

assailant and that that "suppression"

precluded his using the photograph to

impeach the victim's credibility. Held:

1. This court could not conclude that the

defendant was treated unfairly by the fact

that the state “suppressed” the

photograph, he having failed to show that

4

2a

"the omitted evidence creates a reasonable

doubt [as to his guilt] that did not

otherwise exist."

2. There was no merit to the defendant's

claim that the trial court erred

in admitting into evidence, in violation

of his constitutional right to remain

Silent, the testimony of a police officer

to the effect that he had refused to make

a written statement after he had been

given his Miranda warnings.

3. The defendant's claim that the state

failed to prove beyond a reasonable doubt

that he was guilty of the crime charges

was unavailing.

Argued May 3--decision released August

14, 1984.

Information charging the defendant

3a

with the crime of attempted sexual assault

in the first degree, brought to the

Superior Court in the judicial district of

New Haven and tried to the jury before |

Reynolds, J.; verdict and judgment of

guilty, and appeal by the defendant to

this court. No error.

John R. Williams, for the appellant

7 " dteaenn) .

Julia D. Dewewy, assistant state's

attorney, with whom, on the brief, were

Arnold Markle, state's attorney, and

Patrick J. Clifford, assistant state's

attorney, for the appellee (state).

ARTHUR H. HEALEY, J. THe defendant,

Demetrius Green, was convicted after a

4a

trial to a jury of attempted sexual

assault in the first degree in violation

of General Statutes §§53a-70 (a)? and

53a-49 (a). On this appeal, he claims:

(1) that the trial court erred in the

admission, on the state's case-in-chief,

of the defendant's refusal to give the

police a written statement which refusal

occurred after the defendant was given

Miranda warnings; (2) that the state

"suppressed" a police photo which the

victim had told the police resembled the

perpetrator of the crime charged; and (3)

General Statutes § 53a-70 (a) 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

or a third person, or by the threat of use

of force against such other person or

against a third person which reasonably

5a

that the state did not prove him guilty

beyond a reasonable doubt of the crime

charged.

The jury could reasonably have found

the following: At about 7:30 p.m. on

September 23, 1979, the defendant,

wielding a handgun, attempted to attack a

sixteen-year-old girl in New Haven. The

victim was walking from the house of her

girlfriend on Washington Avenue to her

home on Kimberly Avenue which was nearby.

While walking easterly in the dark along

the Boulevard near Lamberton Street, the

victim saw the defendant walking westerly

on the Boulevard coming over a bridge. He

crossed the street and walke* towards her.

causes such person to fear physical injury

to such person or third person."

6a

The defendant came up to her and said,

"{t]Jurn around and go the other way." She

saw that he had a gun and she did as he

ordered. Directing her to go into the

meandieas by a park fence which was on the

Boulevard, he told the victim "to lay down

and take off[her]clothes." She got on the

ground, fumbled with her “pants area" as

if she were going to take her pants off

but she did not in fact "undo them."

While she was lying on her side, the

defendant "knelt down on the ground too."

The victim was crying, making excuses,

tellinc him she was thirteen years old,

that he stomach hurt, and that her brother

was coming to meet her "over the bridge."

When he first told her to take her

clothing off, he put his gun away in his

7a

belt, and he began to take his clothing

off by starting "to loosen his pants [and]

[h]e started to undo his button." She

screamed and attempted to get away, but he

held her down and hit her on the side of

her head with his hand. During this time,

he “kept telling [her] to take off [her]

clothes." After she made her excuses, “he

tried to take [her] pants off" and “he put

[the gun] to [her] head" and said that she

"was dead." While he was trying to force

her pants off, the zipper on her pants

broke. He then told her, “Get up. Get

out of here." This entire incident lasted

about fifteen minutes.

The victim then got up and returned to

her girlfriend's house on Washington

Avenue. When she reached the front of that

Ba

house, the defendant was on that street.

de turned around and pointed his gun at

her, whereupon she started screaming and

he fled. The police were called to the

girlfriend's house and the victim's mother

also went there.

Shortly thereafter, a police officer

took the victim and her mother to police

headquarters where a statement was taken

from the victim by Detective Nicholas

Franco after she had gone through five or

six trays of police photos without making

a positive identification of her

assailant. At the trial, the victim said

she had told Franco that one photo "looked

like {her assailant]"? but that she did

2 She also said at the trial that she

picked out that photo "because it looked a

9a

not tell Franco that "it was him." Franco

testified at the trial that the victim

termed the photo “as a possible look

alike.” At police headquarters that

night, Franco made a note of the date of

that photo and its number. This photo was

not produced before or during the trial.

The victim also gave Franco a

description of her assailant while at

police headquarters and Franco caused it

to be broadcast on the pelice radio. At

about ten o'clock that night, while Franco

was driving the victim end her mother

home, he received a broadcast from another

little like him,” but that it was not the

person who attacked her.

The police officer who had stopped the

defendant in the vicinity of Congress

Avenue and Arch Street, in doing so, told

him that “he matched a description of a

subject wanted for sexual assault.”

10a

police officer that he had stopped a

person who fitted the description of the

victim's assailant.? Franco then drove to

Congress Avenue and Arch Street where the

defendant was with at least two police

officers. The victim “positively

identified” him as the perpetrator, both

from a distance and when the officers

brought him over to the police car, at

which time she also heard his voice when

he asked here whether she was “sure” that

he was her assailant.

Leaving the scene, Franco took the

victim and her mother home and then he

returned to police headquarters. At

police headquarters Franco spoke to the

defendant. He advised the defendant of

his Miranda rights and then asked him if

lla

he wanted to give a formal statement.

Franco testified on direct examination

during the state's case-in-chief that the

defendant said that “he didn't want to

give a statement, but it wasn’t him and

that he was at his mother's house till

about 7:30 that night.

I

We take up first defendant's claim

that the state “suppressed” a police photo

which the victim stated "looked like” the

defendant. The defendant claims that this

suppression denied him his fourteenth

amendment due process rights. In doing

so, he refers to the circumstances that

his conviction was based on an

out-of-court identification which the

court considered “unnecessarily

12a

w4

suggestive, that he was not wearing the

trousers described by the victim when he

was arrested, and that he did not have the

weapon she had described. He therefore

argues that the "suppression" of this

photo precluded his use of it to impeach

the credibility of the victim.

With regard to the photo in question,

Franco testified on cross-examination that

he did not set this photo aside because it

—Brior to the start of the trial, the

court held a hearing on the defendant's

motion to suppress the victim's

out-of-court identification of the

defendant made when Franco took her to

Congress Avenue and Arch Street.

In announcing its decision denying that

motion, the court said that while "(the

defendant] was not handcuffed, he was in

the presence of police officers. That

could be construed to be unnecessarily

suggestive. But, certainly other factors

outweigh any suggestiveness. I think

she's made a credible withness.” It is

clear that the trial court found that her

13a

was department practice not to do so

unless the viewer made a positive

identification. Franco also testified on

cross-examination that he had not made any

attempt to look for this photo "within the

last week or two." During the trial, the

state said that it had informed defense

counsel "before this case started” that

the photo was unavailable, that it had

made an attempt to find the photo, but it

5

could not be located.

In Brady v. Maryland, 373 U.S. 83, 87,

83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963),

the United States Supreme Court said that

"suppression by the prosecution of

identification was reliable. This finding

has not been challenged on appeal.

An examination of the record before us

does not disclose any pretrial motion for

exculpatory evidence by the defendant.

14a

evidence favorable to an accused...vio-

lates due process where the evidence is

material either to guilt or to punishment,

irrespective of the good faith or bad

faith of the prosecution." See Moore v.

Illinois, 408 U.S. 786, 92 S. Ct. 2562, 33

L. Ed. 2d 706, reh. denied, 409 U.S. 897,

93 S. Ct. 87, 34 L. Ed. 24 155 (1972). The

United States Supreme Court delineated the

parameters in Mooew c. Illinois, supra.

In Moore, the court said that "(t]he heart

of the holding in Brady is the prosecu-

tion's suppression of evidence, in the

face of a defense production request,

where the evidence is favorable to the

accused and is material either to guilt or

to punishment. Important, then, are (a)

suppression by the prosecution after a

15a

request by the defense, (b) the evidence's

favorable character for the defense, and

(c) the materiality of th evidence."

Moore v. Illinois, supra, 794-95. To

prevail on a claimed violation of Brady

and its progeny, a defendant must

establish each of these three prongs. See

Moore v. Illinois, supra, 794-95; State v.

Doolittle, 189 Conn. 183, 197, 455 A.2d

843 (1983); People v. Hedrick, 192 Colo.

37, 40-41, 557 P.2d 378 (1976).

In United States v. Agurs, 427 U.S.

97, 108, 96 S. Ct. 2392, 49 L. Ed. 2d 342

(1976), the court further elaborated on

the materiality prong, stating that the

prosecutor does not violate his

constitutional duty of disclosure “unless

his omission is of sufficient significance

16a

to result in the denial of the defendant's

right to a fair trial." In illuminating

the proper standard of materiality that

must be shown, the Agurs court said that

"if the omitted evidence creates a

reasonable doubt [of guilt] that did not

otherwise exist, constitutionai error had

been committed." United States v. Agurs,

supra, 112. Pointing out that this meant

that "the omission must be evaluated in

the context of the entire record," it went

on to note that "{iJf there is no

reasonable doubt about guilt whether or

not the additional evidence is considered,

there is no justification for a new trial,

[but] on the other hand, if the verdict is

already of questionable validity,

additional evidence of relatively minor

i7a

importance might be sufficient to create a

reasonable doubt." United States v.

Agurs, supra, 112-13. That court,

however, also said that "[t]he mere

possibility that an item of undisclosed

information might have helped the defense,

or might have affected the outcome of he

trial, does not establish 'materiality' in

the constitutional sense." United States

v. Agurs, supa, 109-10; see State v.

Doolittle, supra, 197.

Our analysis will proceed on the

assumption that the failure of the police

to preserve the photo was a suppression."

®rhere is no claim that the _ state

deliberately or in bad faith suppressed

the photo involved. Only an intentional

or deliberate suppression of evidence is a

per se violation of due process sufficient

to reverse or nullify a conviction. See

fenton 0!

18a

United States v. Keogh, 391 F.2d 138 (2nd

Cir. 1968). There is no doubt of the

"constitutional obligation of a prosecutor

to disclose all material evidence

favorable to an accused in his possession,

an obligation that exists withort

Statutory or practice book mandates."

State v. Packard, 184 Conn. 258, 277, 439

A.2d 983 (1981); United States v. Agurs,

427 U.8. 97, 107, 36 BS. CE. 2394— 89 he

Ed. 2d 342 (1976); Brady v. Maryland, 373

U.S. 83, 87, 83 S. Ct. 1194, 10 L.Ed. 2d

215 (1963); see General Statutes §54-86c;

Practice Book §§741, 747.

General Statutes {J 54-86c requires the

state to disclose, "“[n]ot later than

thirty days" after a defendant pleads not

guilty, "any exculpatory information or

material... whether or not a request has

been made ...." Because there is not any

evidence that shows when the state's

attorney first became aware of the photo,

and no evidence that he ever in fact had

it, we perceive no per se violation of

this statute under the circumstances of

this case. It is difficult conceptually

to consider the "loss" of this evidence as

due to the negligence of the state. In

any event, where evidence is inadvertently

lost or otherwise unavailable, the fact

that a defendant has been denied access to

evidence that may be only “arguably

favorable" does not mean that his due

process rights have been violated. See

Talamante v. Romero, 620 F.2d 784, 788

(10th Cir.), cert. denied, 449 U.S. 877,

103 8B. CE. 223, SS kb. Bs 2G Be tapeee

19a

Under the Brady line of decisions, the

evidence suppressed must not only be

favorable to the defendant, but also

material to either his guilt or

punishment. Moore v. Illinois, supra,

794-95. Evidence is material if it "could

--. in any reasonable likelihood have

affected the judgment of the jury." Napue

v. Illinois, 360 U.S. 264, 271, 79 S. Ct.

1373, 3 Lb. BA. 24 Sk? (395er» The

defendant must show that the evidence was

material and of some substantial use to

him. United States v. Tomaiolo, 378 F.2d

26 (2nd Cir.), cert. denied, 389 U.S.886,

88 S. Ct. 159, 19 L. Ed. 2d 184 denied,

389 0.8. 886, 88 8S. Ct. 159, i9 by Ba. 2a

184 (1967); see Talavera v. State, 227 So.

2a 493, 497 (Fla. App. 1969); Strange v.

a a i i i re

tc Ek Se eA OME a0 te

20a

State, Ind., 452 N.E. 2d. 927, 929 (1983).

Favorable evidence is that "evidence

which... might have led the jury to

entertain a reasonable doubt about...

guilt"; Levin v. Katzenbach, 124 U.S. App.

D.C. 158, 162, 363 F.2d 287, 291 (1966);

see United States v. Bryant,. 142 U.S. App.

D.C. 132, 138, 439 F.2d 642, 648 (1971);

and this doubt must be one "that did not

otherwise exist." United States v. Agurs,

supra, 112, Talamante v. Romero, 620 F. 2d

784, 789 (10th Cir.), cert. denied, 449

U.S. 877, 101 S. Ct. 223, 66 L. Ed. 2d 99

(1980).

The level of materiality that need be

proven here to establish a Brady violation

is such that "the omitted evidence creates

a reasonable doubt [as to guilt] that did

2la

not otherwise exist... [and] the omission

must be evaluated in the context of the

entire record." United States v. Agurs,

supra, 112; State v. Packard, 184 Conn.

258, 279). 439 A. 2d 983 (1981). In this

case we deem that level to be appropriate

in view of the apparent unintentional or,

at most, the inadvertent "suppression" of

the missing photo.

Initially, it seems evident that the

missing photo would have had _ some

materiality inasmuch as it might have

affected the credibility of the

complaining witness. The rule laid out in

Brady requiring disclosure of exculpatory

evidence applies to materials that “might

well alter the jury's judgment of the

credibility of a crucial prosecution

iia iil

22a

witness." United States v. Higgs, 7133

F.2d 39, 42 (3d Cir. 1983); see Giglio v.

United States, 405 U.S. 150, 154, 92 S.

Ct. 763, 31 L. Ed. 2d 104 (1972). We

conclude that the materiality of this

photo falls short of the level of

materiality demanded by Agurs. As Justice

Marshall recently said, "({w]hatever duty

the Constitution imposes on the States to

preserve evidence, that duty must be

limited to evidence that might be expected

to play a significant role in the

suspect's defense." California v.

Trombetta, U.S., (52 U.S.L.W. 4744, 4747,

June 11, 1984). The defendant had ample

opportunity to cross-examine the victim

fully and question her reliability before

the jury at trial upon the identity of her

23a

alleged assailant. He did this after an

earlier cross-examination of the victim

during the stppression hearing concerning

her identification of him. The defendant

has not challenged the victim's physical

description of him. Despite the victim's

fairly comprehensive description of the

defendant, the only attack on her

identification of him related to her

statement that he wore maroon trousers.

It is apparent from the evidence that the

defendant was wearing brown trousers when

apprehended by the police about two hours

after the alleged incident. ’

7 The trousers taken from the defendant

were marked as an exhibit at the trial.

When she was shown these at the trial, she

said they were brown. No issue has been

raised as to the shirt and sweater of the

assailant which were also exhibits.

24a

The defendant argues that the missing

photo was crucial because the state's case

was weak and essentially consisted of the

victim's testimony. Indeed, it is common

knowledge that such offenses are seldom

undertaken in public view or in the

presence of witnesses. State v.

Gionfriddo, 154 Conn. 90, 96, 221 A.2d 851

(1966); State v. Coulombe, 143 Conn. 604,

608, 124 A.2d 518 (1956); State v.

Chuchelow, 131 Conn. 82, 83, 37 A.2d 689

(1944). The credibility of the

complaining witness may be critical in

many of these cases; sometimes it may be

the only evidence of the commission of the

crime. We, therefore, have said that a

broad latitude should be allowed to test

the veracity of such a witness. See,

25a

e.g., State v. Gionfriddo, supra; 81 Am.

Jur. 2d, Witnesses §492. An assertion

that a case is weak does not require an

appellate court to upset a verdict of

guilty if the evidence affords the trier

of the fact a proper basis for its

verdict.

We are aware that the requirements of

Brady and its progeny are imposed because

"{[slociety wins not only when the guilty

are convicted but when criminal trials are

fair; our system of the administration of

justice suffers when any accused is

treated unfairly.” Brady v. Maryland,

supra, 87. On balance, we cannot conclude

that the defendant was treated unfairly,

particularly because he has not shown that

"the omitted evidence creates a reasonable

——

26a

doubt that did not otherwise exist."

United States v. Agurs, supra, 112; see

State v. Doolittle, supra, 197.

II

We take up next the defendant's claim

that the state's introduction of evidence

in its case-in-chief of the defendant's

refusal to give a written statement after

having been arrested and given his Miranda

rights was plain error and a violation of

his federal and state constitutional

rights. ® We do not agree.

8 although this evidence came in at the

trial without objection or exception, we

will review it under the _ second

"exceptional circumstance” of State v.

Evans, 165 Conn. 61, 70, 327 A.2d 576

), where the record adequately

supports the claim that a litigant has

been clearly deprived of a fundamental

constitutional right and a fair trial.

27a

On the state's case-in-chief, Franco

testified that after the defendant had

been arrested, processed at police

headquarters and given his Miranda rights

for the second time that night, he asked

the defendant if he wanted to give a

written statement. The defendant

9

refused. At the trial, the defendant's

9 The transcript discloses that at that

time the following took place:

"A.... I went down and brought him

upstairs, asked him if he wanted to give a

formal statement.

"Q. Did you advise him of his Miranda

Rights before you did this?

~ -— ee CF

"QO. What did he say to you?

"A. He told me he didn't want to give

a statement, but it wasn't him and that he

was at his mother's house till about 7:30

that night.

"Q. Is that what he told you?

"A. That's what he told me.

"QO. And, he would not reduce that to

writing in any way?

"A. No.

28a

mother testified that Franco had called

her sometime after 7:30 p.m. on the night

in question and that she had told him that

the defendant had left her house on Lilac

Street after 7:30 p.m.

"Q. Did you have occasion sometime

after your conversation with the defendant

to call up his mother?

"A. Yes, I Gid.

"Q. What did she say?

"A. As near as I can recall, I asked

if her son was at her house at ail. And,

she told me that he was, and that he left

when it was getting dark about 7:30 or 8

o'clock.

"Q. When you called her up, I assume,

you told her when you were, that you were

a detective?

"A. I identified my self.

"Q. She said he left when it was

getting dark around 7:30 or so?

"A. Yes.

"Mr. Clifford: I have nothing

further.”

10 Cross-examination of Franco disclosed

that the defendant had told Franco that he

lived with his mother on Lilac Street in

New Haven which was on "the other side of

town from where the incident occurred."

29a

The defendant cites Doyle v. Ohio, 426

U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91

(1976), to support his claimed violation

11

of Miranda rights. Doyle held that a

defendant's postarrest silence following

receipt of Miranda warnings may not be

used for impeachment purposes during

cross-examination. Doyle v. Ohio, supra;

see State v. Nowakowski, 188 Conn. 620,

622, 452 A.2d 938 (1982). That decision

was based on due process grounds and

Ai The defendant also argues that the

state's conduct here violated article

first, § 8 of the Connecticut

Constitution. He relies on State

v.Ferrone, 97 Conn. 258, 116A. 336

(1922), and State v. Bates, 140 Conn. 326,

99 A.2d 133 (1953). We reject this claim

based on the same analysis we set forth in

rejecting his claim based on Doyle v.

Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L.

Ed. 2d 91 (1976).

30a

concluded that it would be fundamentally

unfair to advise a defendant of his right

to remain silent and then to use the fact

of silence against him. Doyle v. Ohio,

supra, 618. The defendant argues that the

state, in eliciting this evidence of his

alibi defense, did so to show that he

would not make a written statement about

it and to undermine seriously his alibi,

thereby violating his constitutional

rights. We do not agree.

In making this claim, the defendant's

position is anomalous. He does not object

to the testimony of Franco that he orally

denied that he was the assailant and that

he had an alibi, but he does object to the

testimony that he refused to put his oral

statement in writing. It is true that the

3la

defendant was asked if he wanted to make a

written statement. But rather than simply

saying that he did not, he gave an

unsolicited response. The defendant does

not object to the portion of his response

which is beneficial to his defense; he

does object, however, to that portion

which he claims is not beneficial. His

answer to Franco above and beyond his

declaration that he would not give a

written statement was an unsolicited

response. He makes no claim about the

voluntariness of his response. The

defendant makes no claim that the police

interrogated him after he invoked his

Miranda rights. See Michigan v. Mosley,

423 U.S. 96, 96 8. Ct. 321, 46 L. Ed. 2d

313 (1975).

32a

While the circumstances of this case

disclose that there was no impeachment of

the defendant personally as a witness, we,

nevertheless, deem the Doyle analysis

helpful because of the alleged

"impeachment" of the defendant by the

state on its case-in-chief. See Chapman.

v. United States, 547 F.2d 1240, 1248 (5th

Cir.), cert. denied, 431 U.S. 908, 97 S.

Ct. 1705m 52 L. Ed. 2d 393 (1977). Doyle

pointed out that "every post-arrest

silence is insolubly ambiguous because of

what the State is required to advise the

person arrested." Doyle v. Ohio, supra,

617. Moreover, that court opined that the

implicit assurance given by the Miranda

warnings that silence will not be

penalized would render it "fundamentally

33a

unfair and a deprivation of due process to

allow the arrested person's silence to be

used to impeach an_- explanation

subsequently offered at trial." (Emphasis

added.) Doyle v. Ohio, supra, 618. In

this case, unlike Doyle, the defendant's

"silence" was not used by the state.

Indeed, the defendant's claim that his

Silence was protected by Doyle was not

"Doyle silence" at all because, having

been advised of his Miranda rights, he

decided not to stay silent but voluntarily

chose to declare he was not the

perpetrator and that he had an alibi. He

chose to do this despite his initial

response that he would not give a written

statement. Franco's direct testimony,

therefore, hardly brought forth any

34a

inference of an alibi fabricated

"somewhere along the way" well after

arrest and before trial to offset such an

exculpatory position at trial as in Doyle.

See State v. Zeko, 177 Conn. 545, 418 A.2d

917 (1979). If anything, it had quite the

contrary effect. The state not only

brought out Franco's call to the

defendant's mother the very night of his

arrest, but the testimony of the

defendant's mother completely corroborated

the defendant's alibi; this is hardly an

undermining of his alibi claim. It is

clear that this claimed violation of Doyle

is without merit. Due process in general,

and explicitly in Doyle, is concerned with

fundamental fairness, and we find no

deprivation of that here.

35a

Iitl

Finally, the defendant argues that the

state failed to prove beyond a reasonable

doubt that he was guilty of the crime

charged. He claims that the state did not

present any direct or indirect evidence of

any kind to establish that the crime

attempted involved sexual intercourse as

defined by General Statutes §53a-65(2).

It is also claimed that if the intent of

the perpetrator as described by the victim

"was to have sexual contact," the crime

would have been attempted sexual assault

in the third degree, i.e., General

Statutes § 53a-72a, rather than the crime

of which he was convicted. Further, he

maintains that there was no evidence from

which he could have been convicted. This

36a

requires, the defendant concludes, the

reversal of his conviction with direction

to enter a judgment of not guilty. We do

not agree.

Under General Statutes §53a-49(a),

"[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: (1) Intentionally engages in

conduct which would constitute the crime

if attendant circumstances were as he

believes them to be; or (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." (Emphasis added.)

37a

Essentially, an attempt under §532-49 (a)

is an act or omission done with the intent

to commit some other crime. The rationale

is that while a defendant may have failed

in his purpose, his conduct is, however,

criminally culpable, and if carried far

enough along causes a sufficient risk of

harm to be treated as a crime in an of

itself. See, e.g., Hall “Criminal

Attempt--A Study of Foundations of

Criminal Liability,” 49 Yale L.J. 789

(1940). The act or acts must be something

more than mere preparation for committing

the intended crime; they must be at least

the start of a line of conduct which will

lead naturally to the commission of a

crime which appears to the actor at least

to be possible of commission by the means

ee

38a

adopted. State v. Mazzadra, 141 Conn.

731, 736, 109 A.2d 873 (1954).

In this case, the trial court charged

the jury on the alternative bases of

attempt contained in subsections (1) and

(2) of §53a-49(a), both of which require

12

proof of the element of intent. Under

*2Goneral Statues § 53a-49 provides in

part: “(a) 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: (1)

Intentionally engages in conduct which

would constitute the crime if attendant

circumstances were as he believes them to

be; or (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.

"(b) Conduct shall not be held to

constitute a substantial step under

subdivision (2) of subsection (a) unless

it is strongly corroborative of the

actor's criminal purpose. Without

negating the sufficiency of other conduct,

the following, if strongly corroborative

39a

our penal code "[a] person acts

‘intentionally’ with respect to a result

or to conduct described by a statute

defining an offense when his conscious

objective is to cause such result or to

engage in such conduct.” General Statutes

§53a-3(11). The state must prove that the

defendant acted with the specific intent

to commit sexual assault in the first

degree which in turn included the intent

of the actor's criminal purpose, shall not

be held insufficient as a matter of law:

(1) Lying in wait, searching for or

following the contemplated victim of the

crime; (2) enticing or seeking to entice

the contemplated victim of the crime to go

to the place contemplated for its

commission; (3) reconnoitering the place

contemplated for the commission of the

crime; (4) unlawful entry of a structure,

vehicle or enclosure in which it is

contemplated that the crime wiil be

committed; (5) possession of materials to

be employed in the commission of the

crime, which are specially designed for

————————

40a

to commit sexual assault in the first

degree which in turn included the intent

to have sexual intercourse. =? "It is not

such unlawful use or which can serve no.

lawful purpose of the actor under the

circumstances; (6) possession, collection

or fabrication of materials to be employed

in the commission of the crime, at or near

the place contemplated for its commission,

where such possession, collection or

fabrication serves no lawful purpose of

the actor under the circumstances; (7)

soliciting an innocent agent to engag in

conduct constituting an element of the

crime."

The court’s instructions to the jury

have not been challenged on appeal and

are, therefore, assumed to be be adequate

and legally correct. Vogel v. Sylvester,

148 cgnn. 666, 668, 174 A.2d 122 (1961).

See footnote, 1 supra.

General Statutes §53a-65(2) provides

that:"'Sexual intercourse’ means vaginal

intercourse, anal intercourse, fellatio or

cunnilingus between persons regardless of

sex. Penetration, however slight, is

sufficient to complete vaginal

intercourse, anal intercourse of fellatio

and does not require emmission of semen.

Penetration may be committed by an object

4la

enough [just] to show that the defendant

intended to do some unspecified criminal

act." LaFave & Scott, Criminal Law

§59,p.429. Also, it must be proven that a

defendant conducted himself to carry out

that intent. "Since a determination of

the defendant's intent involves an

examination of his mental state...it

necessarily must be proved by his

statements or acitons.” (Citations

omitted.) State v. Holley, 174 Conn. 22,

25-26, 381 A.2d 539 (1977). This is one

way of saying that a person's intention is

be inferred from his conduct and the

surrounding circumstances. "Where there

manipulated by the actor into the genital

Or anal opening of the victim's body. Its

meaning is limited to persons not married

to each other.”

42a

is sufficient evidence to suppor a

reasonable inference that the defendant

intended to commit the crime charged,

whether such an inference should be drawn

is properly a question for the jury to

decide." State v. Morrill, 193 Conn. 602,

609, A.2d (1984).

The question thus becomes whether

the jury, considering the defendant's

conduct and all the surrounding

circumstances, could conclude that there

was no reasonable doubt that the defendant

acted with the intent to commit sexual

assault in the first degree. See State v.

Tucker, 181 Conn. 406, 417, 435 A.2d 986

(1980). The state must prove every

essential element of the crime beyond a

reasonable doubt and, while the jury may

43a

draw reasonable and logical inferences, it

may not resort to speculation. State v.

Tucker, supra; State v. Saracino, 178

Conn. 416, 419, 423 A.2d 102 (1979). In

reviewing a claim challenging the

sufficiency of the evidence, the evidence

must be given a construction most

favorable to sustaining the verdict

reached by the jury. State v. Tucker,

supra, 418; State v. Jackson, 176 Conn.

257, 262, 407 A.2d 948 (1978).

"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...or by the threat of

use of force against such other

44a

person...which reasonably causes’ such

person to fear physical injury to such

person...." General Statues §53a-70(a).

A specific intent to commit sexual assault

in the first degree is an essential

element of that crime and on the evidence

the jury could find that proven.

In this case, the defendant,

brandishing a handgun, approached a young

girl, sixteen years of age, on a street

after dark and told her to turn around and

go the other way. He forced her to go

into some bushes behind a park fence. He

ordered her to lie on the ground and take

off her clothes, and despite her excuses

and crying, she acted as if to do so. He

put his gun in his belt, knelt on the

ground, started to "loosen his pants [and]

45a

started to undo his button." When she

tried to get away, he held her down and

struck her. During all this time, the

defendant repeatedly told her to take off

her clothes. The defendant attempted to

take off her pants and put the gun to her

head and told her that "[she] was dead."

It is true that he did not say anything to

her of his intent, but that is not

necessary to establish proof of intent.

See, e.g., State v. LaVine, 68 Wash. 2d

83, 411 P.2d 436 (1966). Under all the

circumstances, the jury was justified in

finding that the defendant had the

specific intent to commit the crime of

sexual assault in the first degree. They

could reasonably have found that he acted

"intentionally" as that is defined in

46a

General Statutes §53a-3(11).

After finding that the defendant acted

with the necessary mental state required,

the remaining question is whether the jury

could reasonably have found out he

evidence that the defendant's conduct was

of the nature to constitute the inchoate

crime of attempt as charged. Once the

mental state required under the attempt

statute in §53a-49(a) is found, there are

two subsections of that statute under

which a defendant may be found guilty.

Under the evidence, the jury could have

found this pr ener ee guilty under both,

although one would have been sufficient.

The law recognizes, as it must, that the

method of committing or attempting to

commit a crime varies with the particular

47a

crime involved; some crimes may be

attempted or executed with greater

instantaneity that others. See People v.

Rizzo, 246 N.Y. 334, 337-38, 158 N.E. 888

(1927). As Justice Holmes once said:

"{P]reparation is not an attempt. But

some preparations may amount to an

attempt. It is a question of degree. If

the preparation comes very near to the

accomplishment of the act, the intent to

complete it renders the crime so probable

that the act will be a [crime] although

there is still a locus penitentiae in the

need of a further exertion of the will to

complete the crime." (Emphasis in

Original.) Commonwealth v. Peaslee, 177

Mass. 267, 272,59 N.E. 55 (1901); see

United States v. Coplon, 185 F.2d 629, 633

48a

(2d Cir. 1950) (L. Hand, J.). We have said

that "the attempt is complete and

punishable, when an act is done with

intent to commit the crime, which is

adapted to the perpetration of it, whether

the purpose fails by reason of

interruption...or for other extrinsic

cause.' State v. Wilson, 30 Conn. 500,

506 [1862]; State v. Enanno, 96 Conn. 420,

27, 246 A. 3O6 (E9Ra]." State v.

Mazzadra, supra. In Mazzadra, a snoted

earlier, we also said that "[t]he acts

done must be at least the start of a line

of conduct which will lead naturally to

the commission of a crime which appears to

the [defendant] at least to be possible of

commission by the means adopted." State

v. Mazzadra, supra, citing 1 Wharton,

49a

Criminal Law (12th Ed.)§ 221. Each case

depends upon its own factual pattern.

State v. Mazzadra, supra.

Under §53a-49(a) (1), a defendant

acting with the required mental state is

guilty of the crime of attempt where he

"{iJntentionally engages in conduct which

would constitute the crime if attendant

circumstances were as he believes them to

be..." On the evidence, the jury coul:?

reasonably have found that his intentional

conduct, which was beyond mere

preparation, was to perform acts and

accomplish a result that would constitute

the crime charged inasmuch as_ the

circumstances for doing so were, in his

belief, accommodating to his criminal

purpose. Moreover, under §53a-49(a) (2), a

50a

defendant with the required *mental state

is guilty of the crime of attempt when he

"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."

To constitute a "substantial step," the

conduct must be “strongly corroborative of

the actor's criminal purpose." State v.

Latraverse, Rok. , 443 A.2d 890, 893

(1982); State v. Workman, 90 Wash. 2d

443,452,584 P.2d 382 (1978);State v.

Woods, 48 Ohio St. 2d 126, 132, 357 N.E.2d

1059 (1976). "The application of this

standard will, of course, depend upon the

nature of the intended crime and the facts

5la

of the particular case. A substantial

step...in robbery...may be quite different

from that in arson, rape, or some other

crime, but this standard properly directs

attention to over acts of the defendant

which convincingly demonstrate a firm

purpose to commit a crime.” State v.

Latraverse, supra, 895. This standard

shifts the focus from what has been done

to what remains to be done. What

constitutes a “substantial step” in any

given case is a question of fact. State

v. Workman, supra. The “substantial step”

standard in §53a-49(a)(2) is illustrated

in §53a-49(b) with some examples of

conduct which are “not...insufficient as a

matter of law” to constitute a substantial

step. These examples are not

52a

all-inclusive. On the evidence, the jury

could reasonably have found that his

intentional conduct constituted a

substantial step under this subsection.

There is no error.

In this opinion the other judges

concurred.

lb

APPENDIX B

ORDER DENYING MOTION TO REARGUE

NO. 11147

STATE OF CONNECTICUT SUPREME COURT

vs. STATE OF CONNECTICUT

DEMETRIUS GREEN SEPTEMBER 26, 1984

ORDER

THE MOTION OF THE DEFENDANT, FILED fi

AUGUST 24, 1984 TO REARGUE, HAVING BEEN

PRESENTED TO THE COURT, IT IS HEREBY

ORDERED DENIED.

BY THE COURT

FRANCIS J. DRUMM, JR.

CHIEF CLERK

BY

Asst. Clerk-

Appellate

2b

Notice to:

JOHN R. WILLIAMS

HOWARD J. GEMEINER

ARNOLD MARKLE, S.A.

PATRICK CLIFFORD, A.S.A.

JULIA DICOCCO DEWEY, A.S.A.

CLERK, SUPERIOR COURT, NEW HAVEN

REPORTER OF .TUDICIAL DECISIONS,

9-26-84