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State v. Jackson

Court of Appeals of Connecticut

August 28, 2018

STATE OF CONNECTICUT
v.
JALENN JACKSON

          Argued April 11, 2018

         Procedural History

         Information charging the defendant with three counts of the crime of sexual assault in the first degree, brought to the Superior Court in the judicial district of Danbury and tried to the court, Russo, J.; judgment of guilty of one count of sexual assault in the first degree, from which the defendant appealed to this court. Affirmed.

          Erica A. Barber, assigned counsel, for the appellant (defendant).

          Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky, III, state's attorney, and Colleen P. Zingaro, assistant state's attorney, for the appellee (state).

          DiPentima, C. J., and Bright and Harper, Js.

          OPINION

          BRIGHT, J.

         The defendant, Jalenn Jackson, appeals from the judgment of conviction, rendered after a trial to the court, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1).[1]The defendant claims that the trial court improperly and in violation of the collateral estoppel component of the double jeopardy clause of the United States constitution[2] admitted into evidence a portion of a witness' statement that the jury in his previous trial necessarily had rejected when it found the defendant not guilty on the charge of unlawful restraint. We affirm the judgment of the trial court.

         The defendant originally was charged, via long form information dated March 10, 2015, with: three counts of sexual assault in the first degree in violation of § 53a-70 for digital, oral, and penile penetration of the victim without her consent and with the use of force; one count of sexual assault in the first degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-70; one count of unlawful restraint in the first degree in violation of General Statutes § 53a-95, which was based on the state's theory that the defendant had restrained the victim with a sweater during the act of penile-vaginal intercourse; and one count of burglary in the third degree in violation of General Statutes § 53a-103. Following a trial, the jury deadlocked on the three charges of sexual assault in the first degree, and it found the defendant not guilty of the remaining three charges. The state elected to retry the defendant on the three charges of sexual assault in the first degree. The defendant waived his right to be tried by a jury and his case, instead, was tried to the court, Russo, J.

         The following facts, as set forth by the trial court in its oral decision or as reasonably revealed by the evidence in the record, inform our review. Beginning in March, 2013, the victim, [3] who was from New York, began staying with her friend, A, in Danbury. On the evening of April 25, 2013, the victim and A went to a club in Danbury, where the victim became intoxicated. When the club closed, the victim went to look for A, but could not find her. She waited by the door to the club and began to cry. The defendant, Dylan Kennedy and two other men were riding in a vehicle in the area of the club looking for women with whom they could talk. The men saw the victim and parked alongside the sidewalk near where she was standing. One of the men began speaking to the victim. The victim told them that she could not find A. Soon thereafter, the victim got into the vehicle and went with the men with the intention of finding A, who the men said had gone to a party. The men drove the victim to the party, but by the time they arrived at the purported location of the party on Chestnut Street, the party had broken up. The other two men drove away in the car, so the defendant, Kennedy and the victim walked to the Harambee Center (center), where the defendant and Kennedy sometimes slept. The victim thought the men were being helpful, and she was not concerned about her safety because she thought they were gay. The building was dark when they went inside. The men and the victim played basketball for a while. The defendant was complimenting the victim and ‘‘hitting on [her].'' The three then went to a room on the second floor of the center, where they sat on two couches.

         The defendant caressed the victim's leg, unzipped her pants and aggressively put his hands down her pants and digitally penetrated her vagina. The victim attempted to rebuff the defendant's advances and told him that she felt sick. Nevertheless, the defendant removed the victim's pants and performed oral sex on her, pulling her legs open. Kennedy then approached the defendant and the victim, and he began kissing the victim. The defendant, while positioned face to face on top of the victim, inserted his penis into her vagina. The victim told the defendant ‘‘no, I don't want to do this, I don't want to do this, I don't want to do this, no, I shouldn't do this, I don't want to do this.'' She also told him ‘‘it [is] hurting, please stop . . . .'' The victim then told the defendant she was going to ‘‘puke, '' and the defendant responded by telling the victim to turn around so he could position himself behind her while vaginally penetrating her. Although the victim complied, she was crying and screaming for him to stop, to no avail. She lost consciousness or awareness soon thereafter.

         Despite the victim's testimony that she lost consciousness, Kennedy stated to the police[4] that the victim continued to scream and cry when the defendant took her from behind, and that, to help muffle the victim's screams and to try to keep her quiet, the defendant then wrapped a sweater around her face and pulled tightly, jerking her head back, as she was struggling while the defendant continued to penetrate her. Kennedy also told the police that he did not ‘‘want to throw [the defendant] under the bus. . . . He's my good friend.'' Nevertheless, he stated that the defendant ‘‘like, you know, force[d] his way. . . . He pretty much made [the victim] have sex with him. . . . [H]e got on top of her and stuff, started kissing her, and she was . . . saying no. . . . No. No. No. . . . [He] started kissing her neck and stuff and then she was saying no, no, and then he proceeded to take off her pants.'' When the police asked Kennedy about marks on the victim, he told them that the defendant ‘‘gave her a hickey, '' and that ‘‘he was biting her.'' Kennedy also conceded that the victim was telling the defendant to stop because it hurt.

         In the morning, the victim awoke in the center, naked, with the sweater still wrapped around her face. She scrambled to find her clothes and got dressed, putting the sweater over her clothes. She ran down the stairs of the center and found her way to A's apartment, where she reported to A what had occurred. The victim went to the hospital and reported that she had been sexually assaulted. Thereafter, Kennedy and the defendant were arrested.[5]

         At the conclusion of his first trial, the jury had deadlocked on the three charges of sexual assault in the first degree, and it had found the defendant not guilty of the remaining three charges. The state then elected to retry the defendant on the three charges of sexual assault in the first degree. Following a trial to the court, the court, relying in significant part on the similarity it found between this case and State v. Rothenberg, 195 Conn. 253, 487 A.2d 545 (1985), rendered a judgment of conviction on one count of sexual assault in the first degree based on the defendant's use of force to compel the victim to engage in penile-vaginal intercourse. The court rendered a judgment of acquittal on the charges of sexual assault in the first degree that were based on the defendant's digital and oral penetration of the victim. This appeal followed.

         In his appellate brief, the defendant sets forth, as the ‘‘sole issue presented on appeal . . . whether the doctrine of collateral estoppel, as embodied in the fifth amendment [to the United States constitution] guarantee against double jeopardy, and as set forth in State v. Aparo, 223 Conn. 384');">223 Conn. 384, [614 A.2d 401] (1992), [cert. denied, 507 U.S. 972, 113 S.Ct. 1414, 1415, 122 L.Ed.2d 785 (1993)], barred the trial court from considering and relying upon certain allegations of fact that the state failed to establish in the first trial to find [the defendant] guilty in the second trial, namely that the defendant had restrained [the victim] with a sweater during the alleged sexual assaults.'' He claims: ‘‘When a jury [found] the defendant [not guilty] of unlawful restraint, but failed to reach a verdict on other counts, and it is clear from the record that the jury had a reasonable doubt about certain ultimate facts relating to the [unlawful restraint] count, the doctrine of collateral estoppel prohibits the trial court from considering and relying on those facts to find the defendant guilty on one of the hung counts in a subsequent trial.''[6] Additionally, the defendant argues: ‘‘The trial court's reliance on the restraint evidence rejected by the defendant's jury in the first trial to find him guilty of sexual assault in the second trial constitutes reversible legal error.''[7]

         The state argues that the defendant's double jeopardy claim is waived and unreviewable.[8] It contends that defense counsel never argued double jeopardy, collateral estoppel, or the principles articulated in Aparo before the trial court, and that counsel and the court all considered the defendant's motion as an objection to certain testimony that was based on evidentiary principles related to relevance and prejudice. Furthermore, the state argues that it would amount to ambuscade to consider this claim under the double jeopardy clause when the trial court never had the opportunity to do so. In the alternative, the state argues that, even if the claim is reviewable, there was no double jeopardy violation in ...


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