# Appendix — Green v. Connecticut

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1761%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1985
- **Citation:** 469 U.S. 1191

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1761%3A2. Public record. Not legal advice.