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State v. Weatherspoon

Supreme Court of Connecticut

July 30, 2019

STATE OF CONNECTICUT
v.
KENNETH M. WEATHERSPOON

          Argued October 19, 2018

         Procedural History

         Substitute information charging the defendant with the crimes of sexual assault in a cohabiting relationship, strangulation in the second degree and assault in the third degree, brought to the Superior Court in the judicial district of New London and tried to the jury before Jongbloed, J.; verdict and judgment of guilty of sexual assault in a cohabiting relationship and assault in the third degree, from which the defendant appealed. Affirmed.

          Lisa J. Steele, assigned counsel, for the appellant (defendant).

          Lawrence J. Tytla, supervisory assistant state's attorney, with whom, on the brief, was Michael L. Regan, state's attorney, for the appellee (state).

          Robinson, C. J., and Palmer, McDonald, D'Auria, Mullins, Kahn and Ecker, Js.

          OPINION

          ECKER, J.

         The defendant, Kenneth M. Weatherspoon, was convicted after a jury trial of sexual assault in a cohabiting relationship in violation of General Statutes § 53a-70b and assault in the third degree in violation of General Statutes § 53a-61 (a) (1). The defendant testified at trial, and his claims on appeal relate to allegedly improper attacks on his credibility made by the prosecutor during cross-examination and closing argument. First, the defendant contends that the prosecutor made an impermissible ‘‘generic tailoring'' argument by commenting in closing argument that the jury should discredit the defendant's trial testimony because, among other reasons, it came at the end of the trial, ‘‘with the benefit of hearing all the testimony that came before.''[1]The defendant claims that this comment violated his confrontation rights under article first, § 8, of the Connecticut constitution.[2] He also asks this court to hold that the prosecutor's tailoring comment (1) constitutes prosecutorial impropriety depriving the defendant of his due process right to a fair trial, (2) requires reversal under the plain error doctrine, and/or (3) should prompt us to exercise our supervisory authority to reverse his judgment of conviction and prohibit generic tailoring arguments. Second, the defendant claims that the prosecutor engaged in impermissible conduct in violation of his due process right to a fair trial pursuant to State v. Singh, 259 Conn. 693, 793 A.2d 226 (2002), by conveying to the jury that it would need to find that the police officer had lied in order to find the defendant not guilty.

         Upon careful review of the record, we affirm the judgment of conviction. We conclude that the prosecutor's tailoring comment constituted a specific, rather than a generic, tailoring argument because it was substantiated by express reference to evidence from which the jury reasonably could infer that the defendant had tailored his testimony. We therefore decline the defendant's request to decide whether generic tailoring arguments violate the state constitution. With respect to the alleged improprieties under Singh, for the purposes of our analysis, we assume, without deciding, that Singh was violated, but we nonetheless conclude that the defendant was not deprived of his due process right to a fair trial. We therefore affirm the judgment of conviction.

         I

         We begin by setting forth the pertinent facts and relevant procedural history. The complainant, A, [3] and the defendant met while working for the United States Navy. They dated for a lengthy period and eventually moved into an apartment together. At trial, A testified that, on November 5, 2015, the two began to engage in consensual oral sex in the living room of their apartment. During the encounter, however, the defendant became forceful and aggressive, and he ignored A's request that he stop. The defendant began to bite A's neck and buttocks despite her plea that he was hurting her. He then told her to go into the bedroom, where he continued to physically abuse her despite her efforts to leave the room. The defendant pushed A down on the bed, pulled her legs out from under her when she got up so that she fell, and then held her against the wall while choking her. After he let her go, she fell to the ground, and he began to choke her again. At the end of the altercation, the defendant told A to ‘‘[g]et the fuck out of my sight . . . .'' A then barricaded herself in the bathroom, where she curled up in the fetal position and cried. She later showered and prepared to go to work, but, as she did so, the defendant renewed his aggressive behavior. He began to intermittently use the camera on his cell phone to film A while interrogating her about their relationship. Before A was able to leave the apartment, the defendant grabbed her by the belt and led her into the living room, where he took off her belt and pants. She told him to stop, but he nonetheless proceeded to penetrate her with his penis, both anally and vaginally.

         Upon her arrival at work, A's coworker and supervisor observed marks on her neck. A disclosed to her coworker that her boyfriend had forced her to perform oral sex. After the same coworker overheard A talking on the phone about the assault allegations, he reported the information to his superiors pursuant to Navy protocol. A then spoke with her superior and the Navy's Sexual Assault Response Coordinator. She slept overnight in her superior's office and returned to her apartment on the morning of November 6, 2015, after her shift had ended.

         Later that morning, Officers Bridget Nordstrom, Jesse Comeau, and Darren Kenyon, all of the Groton Police Department, arrived at the apartment to investigate the alleged incident. Nordstrom spoke with A in the apartment while Comeau and Kenyon spoke with the defendant on the balcony. The content of the defendant's conversation with Comeau and Kenyon, as set forth in detail later in this opinion, is disputed. The defendant subsequently was arrested and charged with sexual assault in a cohabiting relationship in violation of § 53a-70b, strangulation in the second degree in violation of General Statutes § 53a-64bb, and assault in the third degree in violation of § 53a-61 (a) (1).

         At trial, in addition to testifying in detail about the events of November 5, 2015, A explained her belief that the defendant had been drinking heavily before he assaulted her. The jury also heard testimony from A's coworkers about the marks on her neck and her partial disclosure of the incident. Photographs of A's injuries, which corroborated her testimony of the assault, were introduced into evidence, and four video recordings from the defendant's cell phone, taken by him at various times during the incident, were shown to the jury. A further testified that the sexual assault occurred between the third and fourth video, and the jury reasonably could have found that the noticeable change in her appearance between those two videos, specifically her hair being ‘‘messed up, '' supported her story.

         At trial, Comeau testified that, on the day after the incident, the defendant told him and Kenyon that he had been drinking the previous day and did not remember what had happened. Comeau explained: ‘‘We asked him if he drank enough that he considered himself to be blacked out, and he said no, he didn't think so, but he did not recall any details.'' Comeau also testified that the defendant ‘‘did not recall making the video.''

         After the state rested, the defendant testified on his own behalf. The defendant acknowledged that he and A had engaged in oral sex on the date in question but said that it was initiated by A. Further, he characterized it as completely consensual in nature and testified that he was not forceful or rough during the oral sex and that at no point did A communicate that she wanted it to stop. The defendant denied the occurrence of any other sexual activity with A that day, or any biting, and he attributed A's injuries to her light skin color and the physical nature of her job. He also explained that A's hair became tousled after the third video because he innocently ruffled her hair, as he had done on prior occasions. The defendant's testimony also differed materially from the version of events as related to the jury by Comeau. On direct examination, the defendant testified that he never told the officers that he could not remember what had happened the prior day. He agreed that the officers asked him if he had consumed enough alcohol to black out, and that he had responded to that inquiry by saying ‘‘no.'' The defendant then testified as follows:

‘‘Q. Did [Comeau] ever ask you to provide any details of the day's events, the day before?
‘‘A. He asked me to-yeah. He said, would you like to speak to me about what happened?
‘‘Q. What did you say?
‘‘A. No.
‘‘Q. Why'd you say no?
‘‘A. Because there's a stigma with the police that if you tell them anything, no matter it be good or bad, it's definitely going to haunt you later.
‘‘Q. Okay.
‘‘A. And without any legal [representation] whatsoever, I wasn't gonna-I wasn't gonna go through that.
‘‘Q. Okay.
‘‘A. Because it's two officers outside and me. They could say I said anything.
‘‘Q. Right. So you thought it [would be] better to keep quiet.
‘‘A. Right.''

         The defendant acknowledged that he unlocked his phone for the officers so that they could see the videos.

         The prosecutor's cross-examination of the defendant involved the following relevant exchange:

‘‘Q. . . . [T]his is [the] first time you've shared your account of what happened on November 5, 2016, publicly, is it not?
‘‘A. With-within this type of environment, yes. I had a lawyer previously before I had [my current trial counsel].
‘‘Q. You never shared any of this information with the police when they were investigating the matter, did you?
‘‘A. No.
‘‘Q. In fact, when the officers took you outside and spoke to you, you told them that you didn't remember anything about what happened the day before; ...

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