68 Conn. App. 470 | Conn. App. Ct. | 2002
Opinion
The defendant, Dagoberto Cuesta, appeals from the judgment of conviction, rendered after a juiy trial, of robbery in the third degree in violation of General Statutes § 53a-136 (a) and assault in the third degree in violation of General Statutes § 531a-61.
The jury reasonably could have found the following facts. On June 23, 1997, the victim was walking in Bridgeport, ready to board a train to New York. She was grabbed from behind by the defendant and dragged to an area away from the road, where she was hidden by shrubs and other vegetation. The defendant repeatedly
A police cruiser drove by, and the victim reported the incident to Joseph Morales, a Bridgeport police officer. The victim was distraught and told Morales that she had been raped. She gave him a description of the defendant, including a description of his clothing, and stated that he was wearing red underwear. Morales began patrolling the area and saw the defendant about fifty feet away. When Morales stopped the defendant, he said, “I didn’t do nothing to that f***in’ bitch and she has my money.” The victim identified the defendant, whereupon he said to her, “Yeah bitch, it’s me.” A physician later examined the victim and found her bruised and beaten.
Initially, the victim claimed that the defendant had raped her.
The jury returned a verdict of guilty of robbery in the third degree and assault in the third degree. The defendant was sentenced to five years on the robbery count, suspended after three and one-half years, and one year on the assault count, to run concurrently, for a total effective sentence of five years, execution suspended after three and one-half years, with five years probation. This appeal followed. Additional facts and procedural history will be set forth as necessary to resolve the claims on appeal.
I
The defendant first claims that the court improperly excluded evidence of semen from a third party, thereby violating his rights pursuant to General Statutes § 54-86f, and his constitutional rights to confrontation and to present a defense under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut. The defendant argues that he improperly was prohibited from cross-examining the victim, Zafer and Morales about the presence of semen to show that the victim was not credible. We do not agree.
The victim initially accused the defendant of assaulting her by forcing her to have sexual intercourse. She claimed that there was penetration and that he ejaculated in her vagina. Semen specimens recovered from the victim’s underpants were compared to DNA
On appeal, the defendant argues that the evidence went directly to the victim’s credibility and that its exclusion precluded him from presenting a defense that she changed her story only upon learning that his DNA test was negative. The defendant asserts that preclusion of the evidence prevented him from raising doubt that the entire incident happened at all. The defendant further claims that the evidence should have been allowed under § 54-86f (1), (2) or (4) because the victim had placed her credibility and sexual conduct in issue.
“We first set forth the standard of review for determining whether the exclusion of this evidence entitles the defendant to a new trial. Upon review of a trial court’s decision, we will set aside an evidentiary ruling only when there has been a clear abuse of discretion. . . . The trial court has wide discretion in determining the relevancy of evidence and the scope of cross-examination and [e]very reasonable presumption should be made in favor of the correctness of the court’s ruling
“Although the outright denial of a defendant’s opportunity to cross-examine a witness on an element of the charged offense implicates the constitutional protection of the confrontation clause, such a denial is [still] subject to harmless error analysis . . . [which will result in a new trial] only if the exclusion of the proffered evidence is not harmless beyond a reasonable doubt. . . .
“Whether such error is harmless in a particular case depends upon a number of factors, such as the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. . . . Most importantly, we must examine the impact of the evidence on the trier of fact and the result of the trial. ... If the evidence may have had a tendency to influence the judgment of the jury, it cannot be considered harmless.” (Citations omitted; internal quotation marks omitted.) State v. Rolon, 257 Conn. 156, 173-74, 777 A.2d 604 (2001).
“[I]n cases involving sexual crimes, [t]he rape shield statute . . . was enacted specifically to bar or limit the use of prior sexual conduct of an alleged victim of a sexual assault because it is such highly prejudicial material. . . . We must remember that [t]he determination of whether the state’s interests in excluding evidence must yield to those interests of the defendant is determined by the facts and circumstances of the
We cannot conclude that the evidence sought to be admitted in this case would be more probative to the defense than prejudicial to the victim. The victim testified that she initially lied to police and medical personnel about having had sexual relations with a third party within seventy-two hours of the alleged incident and gave her reasons for doing so. The jury had a sufficient basis to determine the credibility of the witness. Moreover, defense counsel was free to argue that if the victim would he to police and medical personnel, why should she not he at trial? That being the case, it is difficult to perceive any justification for further questioning about her sexual conduct except to harass and embarrass the victim, and to confuse or mislead the jury. Moreover, we note that the defendant was not convicted
II
The defendant next claims that the court improperly admitted into evidence the uniform arrest report identifying his place of birth as Cuba. The defendant claims that his statement that he was born in Cuba was admitted in violation of his rights against self-incrimination under the state and federal constitutions. Specifically, he argues that the report should not have been admitted because he was not given Miranda
“Our standard of review for evidentiaiy matters allows the trial court great leeway in deciding the admissibility of evidence. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done. . . . The exercise of such discretion is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law.” (Internal quotation marks omitted.) State v. Bridges, 65 Conn. App. 517, 521, 782 A.2d 1256, cert. denied, 258 Conn. 934, 785 A.2d 230 (2001).
Custodial interrogation under Miranda includes both express questioning, and “any words or actions on the part of the police (other than those normally attendant
The defendant argues that although the question posed to him typically is a routine one, the police were aware that the victim had said that her attacker was Cuban and that he allegedly had said, “I’m Cuban. I’m gonna rape and murder you.” Thus, police knew that the question was likely to elicit an incriminating response. We disagree.
“The test as to whether a particular question is likely to elicit an incriminating response is objective; the subjective intent of the police officer is relevant but not conclusive and the relationship of the questions asked to the crime is highly relevant. . . . Ordinarily, the routine gathering of background, biographical data will not constitute interrogation. . . . We are aware, however, that [a] person’s name, age, address, marital status and
Here, the purpose of the questions was not to elicit an incriminating response. Rather, the purpose was to gather the biographical data necessary to complete a booking procedure, specifically, the defendant’s place of birth. That the question was posed in the context of filling out the uniform arrest report lends further support to our conclusion that the police meant only to gather ordinary information for administrative purposes. The only evidence in the record to support the defendant’s argument that the police intended to elicit an incriminating response was that Officer Morales knew that the victim had claimed that the defendant was Cuban and Morales was present during the booking process. It is not clear from the record that it was not the booking officer who asked the question while completing the uniform arrest report. We also cannot say that the question asked was so highly relevant to the crime committed to suggest that an incriminating response would be elicited. The defendant’s country of origin is wholly unrelated to the elements of the crime charged. “Routine questions . . . ordinarily innocent of any investigative purpose, do not pose the dangers Miranda was designed to check . . . .” United States
Ill
The defendant’s final claim is that the court abused its discretion in finding him competent to stand trial. We disagree.
We review the court’s determination of competency under an abuse of discretion standard. State v. Williams, 65 Conn. App. 59, 84, 782 A.2d 149, cert. denied, 258 Conn. 923, 782 A.2d 1251 (2001). “In determining whether the trial court [has] abused its discretion, this court must make every reasonable presumption in favor of [the correctness of] its action. . . . Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” (Citations omitted; internal quotation marks omitted.) State v. Hernandez, 254 Conn. 659, 665-66, 759 A.2d 79 (2000).
“The conviction of an accused person who is not legally competent to stand trial violates the due process of law guaranteed by the state and federal constitutions. Conn. Const., art. I, § 8; U.S. Const., amend. XIV, § 1 .... This constitutional mandate is codified in . . . [General Statutes] § 54-56d (a), which provides that [a] defendant shall not be tried, convicted or sentenced while he is not competent. [A defendant is not competent if he is unable to understand the proceedings against him or to assist in his own defense.] . . . This statutory definition mirrors the federal competency standard enunciated in Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960) (per curiam). According to Dusky, the test for competency must be
“Section 54-56d (b) provides: A defendant is presumed to be competent. The burden of proving that the defendant is not competent by a preponderance of the evidence and the burden of going forward with the evidence are on the party raising the issue. The burden of going forward with the evidence shall be on the state if the court raises the issue. The court may call its own witnesses and conduct its own inquiry. Although § 54-56d (b) presumes the competency of defendants, when a reasonable doubt concerning the defendant’s competency is raised, the trial court must order a competency examination. . . . Thus, [a]s a matter of due process, the trial court is required to conduct an independent inquiry into the defendant’s competence whenever he makes specific factual allegations that, if true, would constitute substantial evidence of mental impairment. . . . Substantial evidence is a term of art. Evidence encompasses all information properly before the court, whether it is in the form of testimony or exhibits formally admitted or it is in the form of medical reports or other kinds of reports that have been filed with the court. Evidence is substantial if it raises a reasonable doubt about the defendant’s competency.” (Citations omitted; internal quotation marks omitted.) State v. Williams, supra, 65 Conn. App. 84—86.
“[T]he rule of Pate v. Robinson [383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966)] imposes a constitutional obligation, under the due process clause, to undertake
The following additional facts are necessary for our resolution of the defendant’s claim. The record reveals that the defendant was the subject of several competency hearings in Connecticut since 1991 and had been committed to the Whiting Forensic Division of the Connecticut Valley Hospital. The record reveals that, at the competency hearing that is the subject of this claim, the court, Thim, J., heard contradictory expert testimony regarding the defendant’s claimed incompetency. The court found the defendant was malingering and, therefore, declared him competent to stand trial. We find no abuse of discretion.
Among the experts for the state was Guay Chatfield, director for the Bridgeport office of court evaluations, forensic services and department of mental health and addiction services for the state of Connecticut. She testified that she led a clinical team that evaluated the defendant. The team conducted a forty-five minute interview with the defendant and reviewed his background, and his psychiatric, neurological and psychological records and evaluations, including a prior diagnosis of malingering from the Whiting Forensic
Jay Berkowitz, a psychiatrist at the Bridgeport correctional center, who is board certified in forensic psychiatry, testified that he observed the defendant on a regular basis for several months. During that time, he observed the defendant become agitated and anxious, and stop taking his medication before court appearances. He testified that the defendant had no trouble speaking English and that it was his opinion that the defendant was competent to stand trial.
Christina Ciocca, a neuropsychologist and expert in malingering, testified on behalf of the defendant. She evaluated the defendant in his native language, Spanish, and ultimately reported that he exhibited symptoms consistent with traumatic brain injury. She found his understanding of English to be “not very good” and detected no evidence of malingering.
“It is well settled that the trier of fact can disbelieve any or all of the evidence proffered . . . including expert testimony, and can construe such evidence in a manner different from the parties’ assertions.” (Internal quotation marks omitted.) State v. Alvarado, 62 Conn. App. 102, 112, 773 A.2d 958, cert. denied, 256 Conn. 907, 772 A.2d 600 (2001). “[T]he credibility and weight to be given to the testimony of the defendant’s expert was solely within the province of the [jury].” Evans v. Taylor, 67 Conn. App. 108, 113, 786 A.2d 525 (2001). “Where, as here, there is strongly conflicting testimony from the
The judgment is affirmed.
In this opinion the other judges concurred.
The defendant also was charged with attempt to commit first degree sexual assault in violation of General Statutes §§ 53a-70 (a) (1) and 53a-49, and kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A). He was acquitted of those charges.
Sayad Amir Zafer, a physician, testified that the victim had bruises on her chin, chest and shoulder blades, and had lost some teeth and that others were loose. Semen was found in the victim’s vagina and was recovered from her underpants.
The state, therefore, initially charged the defendant with sexual assault in the first degree. A substitute information charging the defendant with attempt to commit sexual assault in the first degree subsequently was filed.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The defendant also claims that the statement was hearsay and was not properly admitted under any exception to the hearsay rule. The defendant does not brief that issue beyond a mere statement of his claim. We therefore deem the claim abandoned. See, e.g., State v. Anderson, 67 Conn. App. 436, 441-42 n.8, 787 A.2d 601 (2001).