State v. Gordon

Armextaxo, J.

(dissenting in part; concurring in part). I agree that the trial court’s ruling to admit into evidence the victim’s out-of-court and in-court identifications of the defendant was improper. The analysis, however, does not end there. If we are *424‘“able to declare a belief that [the trial court’s error] was harmless beyond a reasonable doubt’; Chapman v. California, 386 U.S. 18, 24 [,87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967) ] ”; then a remand is not required and the defendant’s conviction of sexual assault in the first degree may be upheld. Gilbert v. California, 388 U.S. 263, 268, 274, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967); State v. Packard, 184 Conn. 258, 269n, 439 A.2d 983 (1981); State v. Sorbo, 174 Conn. 253, 257, 386 A.2d 221 (1978); State v. Oliver, 161 Conn. 348, 357, 288 A.2d 81 (1971); see Fahy v. Connecticut, 375 U.S. 85, 86-87, 92-95, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963) (Harlan, J., with whom Clark, Stewart, and White, Js., joined, dissenting); see also State v. Briggs, 179 Conn. 328, 337, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980). I am able to declare such a belief.

An examination of the transcript of the proceedings below discloses overwhelming evidence of the defendant’s guilt. The victim was sexually assaulted during her menstrual cycle by an assailant armed with a knife. Later, she discovered that a ten dollar bill was missing from her purse. The defendant was observed within a few blocks of the scene of the crime shortly after the assault. He matched the general description given by the victim and fled when he observed a police cruiser. When confronted by Lieutenant Paul Gibbons of the Glastonbury police department, the defendant was crying and pounding the ground and said: “I don’t know why I touched her.” As he handed a pocket knife and a ten dollar bill to Gibbons, he said: “I stole the money from her.” The victim testified that the knife was similar to the one used by her assailant. Labor*425atory reports disclosed blood and seminal stains on the undergarments worn by the victim and the defendant. An examination of the victim’s vaginal area revealed the presence of spermatocytes. In addition to these facts, which alone convince me that the trial court’s error was harmless beyond a reasonable doubt, there is the testimony of the defendant’s own witnesses.

At the trial the only real issue was the defendant’s sanity at the time of the crime or the lack of it. See General Statutes § 53a-13. To support this defense, the defendant offered the testimony of a psychiatrist and of a psychologist. During the questioning of them at trial, both doctors testified that the defendant not only admitted to the assault and robbery, but also, that he had begun planning them three days prior to the actual commission of the crimes. This evidence was elicited from the defendant’s own witnesses and not from court appointed doctors called by the state. Furthermore the record reveals that some of the incriminating testimony was made during direct and redirect examination of the witnesses and that the defendant’s attorney did not object to similar testimony when elicited by the state on cross- and reeross-examination. Finally, there was neither an instruction nor a request for an instruction that the jury consider the testimony given by the doctors only when deciding the question of the defendant’s sanity at the time of the crime. For these reasons, the defendant’s admissions, as related by his expert witnesses, were pertinent to the issue of the defendant’s guilt as well as to his insanity defense. See Practice Book § 760 (formerly Practice Book, 1963, §2171); 18 U.S.C. Rule 12.2(c); 18 U.S.C. §4244; United States v. Cassidy, 571 F.2d 534, 537 (10th Cir.), cert. denied, 436 U.S. 951, 98 S. Ct. *4262859, 56 L. Ed. 2d 793, reh. denied, 439 U.S. 884, 99 S. Ct. 229, 58 L. Ed. 2d 199 (1978); see also United States v. Leonard, 609 F.2d 1163, reh. denied, 617 F.2d 295 (5th Cir. 1980); United States v. Bennett, 460 F.2d 872, 878-81 (D.C. Cir. 1972).

The testimony pertaining to the identifications by the victim of the defendant is cumulative at best. Its improper admittance into evidence was harmless error beyond a reasonable doubt. Under the circumstances of this case, a new trial for the crime of sexual assault in the first degree is unwarranted.

I concur with the majority’s resolution of the other issues raised in the appeal.

In this opinion Healey, J., concurred.