192 Conn.App. 221
Conn. App. Ct.2019Background
- On Oct. 26, 2014, Michael Fox and others entered Nicole Hart’s apartment; victims Nicole and Anthony Esposito were assaulted; Esposito suffered serious facial injuries.
- Police photographed the scene; of seven photos taken that night, three were indiscernible (overexposed/blank); three discernible photos and additional photos taken later were produced to defense.
- Fox was convicted by a jury of home invasion, conspiracy to commit home invasion, assault in the first degree, and conspiracy to commit assault in the first degree; total effective sentence 10 years (concurrent terms).
- Fox appealed claiming (1) double jeopardy from two conspiracy convictions arising from a single agreement, (2) Connecticut due process violation from loss/indiscernibility of photos, and (3) error in denying an adverse-inference jury instruction.
- The court agreed that both conspiracy convictions stemmed from a single agreement and vacated the conspiracy-to-commit-assault conviction; it rejected the due process and jury-instruction claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Double jeopardy for two conspiracy convictions | State conceded only one conspiracy existed; multiple convictions impermissible | Fox: both conspiracy convictions arose from single agreement to enter and harm Esposito | Vacated conviction for conspiracy to commit assault; remanded to vacate lesser conspiracy conviction (no resentencing required) |
| Due process re: indiscernible crime-scene photos (Conn. Const.) | State: photos were produced (though indiscernible); record adequate; no constitutional violation | Fox: loss/indiscernibility of photos of doors deprived him of potentially exculpatory evidence (forced entry issue) | Rejected under Asherman balancing: photos not material, no bad faith, low risk of misinterpretation, and prosecution’s case was strong; no due process violation |
| Request for adverse-inference jury instruction | State: investigation not shown to be negligent or bad-faith; no factual basis | Fox: jury should infer negligence/bad faith from missing/indiscernible photos | Denied: no evidentiary basis to charge negligence or bad faith; even if error, failure to give instruction harmless given strength of evidence |
Key Cases Cited
- Braverman v. United States, 317 U.S. 49 (U.S. 1942) (single agreement with multiple objectives is one conspiracy)
- State v. Wright, 320 Conn. 781 (Conn. 2016) (vacatur of lesser conspiracy conviction is proper remedy for single-agreement double jeopardy)
- State v. Asherman, 193 Conn. 695 (Conn. 1984) (balancing test for missing evidence under Conn. Constitution)
- State v. Morales, 232 Conn. 707 (Conn. 1995) (applies Asherman test over federal bad-faith rule under state constitution)
- State v. Golding, 213 Conn. 233 (Conn. 1989) (standard for unpreserved constitutional claims review)
- Arizona v. Youngblood, 488 U.S. 51 (U.S. 1988) (federal rule requiring bad faith for due process claim based on lost evidence)
- Rutledge v. United States, 517 U.S. 292 (U.S. 1996) (cumulative convictions may produce adverse collateral consequences)
- In re Yasiel R., 317 Conn. 773 (Conn. 2015) (modification of Golding review prong)