42 Conn. App. 382 | Conn. App. Ct. | 1996
Lead Opinion
The defendant appeals from the judgment of conviction, following a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (l)
The jury reasonably could have found the following facts. The victim was a sixteen month old baby with Down’s Syndrome who, at the time of her death on December 14, 1992, resided with her mother, Devilyn Bruno, and her mother’s boyfriend, the defendant Rafael Delgado, in an apartment in Bridgeport. In the spring of 1992, the victim was taken by her aunt to live with her grandmother in Florida. The victim was returned to Connecticut in September or October of 1992. After the victim’s return to Connecticut, the defendant inquired of the aunt when she was taking the victim back to Florida.
On November 16, 1992, the victim was seen at the St. Joseph’s Family Medical Center in Stamford for her fifteen month checkup. The nurse on duty noticed that the victim had three bruises on her face, one on each temple area and one on the right cheek. When the nurse
On the same day, Tammy Vargas, a family practice physician at St. Joseph’s Family Medical Center, examined the victim. Vargas had previously examined the victim in April, 1992, at which time she did not notice any bruises on the victim or problems with the victim’s arms or legs. During the examination on November 16, 1992, which was videotaped,
On December 8,1992, Bruno had a conversation with Vargas in which she indicated that the victim had a swelling in her thigh. Bruno told Vargas that she thought the swelling was on the same side where the victim had received a shot. Vargas could not recall on what part of the body the shots were given, but according to the medical records, the victim did receive shots on November 16, 1992. Since Vargas did not see the victim after November 16, 1992, she did not know the cause of the swelling.
Regina Featherston, a nutritionist for Women, Infants and Children (WIC), a federally funded nutrition program for children and pregnant women, first saw the victim on February 26, 1992. On that date, Featherston did not notice any bruises on the victim and the victim
Because Featherston suspected that something was wrong, she asked Bruno when the victim had last seen a physician. Bruno told Featherston that the victim had seen Vargas the day before, November 16, 1992. After Bruno and the victim left her office, Featherston called Vargas and made notes to herself of the visit with the victim because she was “very suspicious of what happened to her.”
Pauline Barnes and her husband Benjamin Barnes lived in an apartment in Bridgeport below an apartment occupied by a Spanish man, a Caucasian woman and a baby. In the early morning hours of December 14,1992, they were asleep in their apartment when they were awakened by heavy footsteps in the apartment upstairs. Pauline Barnes recognized the footsteps as belonging to the man upstairs and remembered hearing a loud noise that “sounded like someone fell on the floor hard” or like “someone was being thrown to the floor.” After approximately ten minutes, she saw the defendant and the woman leave.
At approximately 4 a.m. on December 14,1992, Benjamin Barnes was awakened by “real heavy walking”
At approximately 4 a.m. on December 14, 1992, Michael Fusaro, an emergency medical technician for the Bridgeport Ambulance Service, was driving an ambulance in Bridgeport with his partner, John Corris, when they were stopped by a man and a woman holding a baby, the victim. Fusaro called the dispatcher to let them know what was going on and then proceeded to assist Corris, who had initiated care to the victim. They then transported the victim to the hospital. The woman sat in the front seat of the ambulance and explained that they had decided to run to the hospital, which was only two or three blocks away, because the victim was crying and having trouble breathing.
Corris knew the condition of the victim was poor because of her limp state and because her face was blue, indicating that the victim was not breathing. After removing the victim’s snowsuit, Corris noticed that the victim had no pulse. Corris also noticed that “the eyes were . . . discolored like bruises around the orbits of the eyes,” which he called a “clinical sign of injury,” usually indicative of head trauma. Corris put a tube into the victim’s lungs, put her on a heart monitor, and gave her some medication. They also performed CPE on the victim. The victim was placed on a board for the drive to the hospital.
The victim was treated in the emergency room of Bridgeport Hospital by Deborah Spaight, a pediatric resident. Spaight noticed that the victim was not breath
As a result of her examination of the victim, Spaight filed a report of suspected child abuse with the state department of social services. She did this on the basis of the severity of the head injury, the evidence of old bruises and the fact that the story from Bruno did not appear to be consistent with the victim’s injuries. In Spaight’s opinion, the defendant’s statement also was inconsistent with the victim’s injuries and the cause of the victim’s death, which was cardiopulmonary arrest caused by the head injury. A post mortem X ray of the victim taken by Maika Shah revealed a healing fracture of the victim’s right upper leg that would have been caused by a “tremendous amount of force.” In Shah’s opinion, the fracture was a minimum of two weeks old, and probably occurred after the victim’s videotaped examination on November 16, 1992.
The defendant testified that the victim slept on a mattress in the kitchen, that there were stuffed animals around the mattress to prevent the victim from hitting the wall, and that the victim would often roll off the
With regard to the victim’s death in the early morning hours of December 14, 1992, the defendant testified as follows. He stayed up until approximately 2 a.m. watching television in his bedroom. Between 3:30 and 4 a.m., the defendant was awakened by the victim’s crying, and he went to the kitchen and saw the victim lying on the floor. He gave her a pacifier and a toy and then went back to the bedroom. About five minutes later, the victim started crying again, and when the defendant went back to the kitchen, he saw the victim lying on her back and thought that she was choking on something. He dropped to his knees, grabbed the back of the victim’s neck, squeezed her cheeks and attempted to perform mouth-to-mouth resuscitation. He then put the victim under cold water in the sink. When he realized that none of his efforts were working, he woke up Bruno, and together they tried to revive the victim. Eventually, they got dressed and started running to the hospital. En route, they flagged down an ambulance, which then took Bruno and the victim to the hospital. The defendant testified that he was not aware, when the victim went to the hospital, that she had a head injury.
I
The defendant first argues that the verdict was against the weight of the evidence. Specifically, the defendant argues that the state presented no evidence indicating that the defendant ever harmed the victim.
“We employ a two part analysis when reviewing sufficiency of the evidence claims. First, we construe the evidence in a light most favorable to sustaining the verdict. Next, we determine whether, from the evidence and all the reasonable inferences which it engenders, a jury could rationally have concluded that the defendant was guilty beyond a reasonable doubt. ... In this process of review, the probative force of the evidence is not diminished by the fact that the evidence may be circumstantial rather than direct.” (Citation omitted.) State v. Cruz, 40 Conn. App. 515, 519, 672 A.2d 502, cert. denied, 237 Conn. 909, 675 A.2d 457 (1996). “In viewing evidence that could yield contrary inferences, the fact finder is not required to draw only those inferences consistent with innocence, but may draw whatever inferences from the evidence it deems to be reasonable and logical.” State v. Bruno, 236 Conn. 514, 539, 673 A.2d 1117 (1996).
With regard to the manslaughter count, the jury was presented with conflicting evidence regarding the cause of the victim’s death. The defendant presented medical testimony to support the theory that while the victim was sleeping on her mattress, she suffered a seizure, causing her to fall onto the kitchen floor and repeatedly strike her head, resulting in the skull fracture on the night in question. The state disputed this theory at trial. Kieve Berkwits, board certified in pediatrics and pediatric cardiology, testified that he examined the victim approximately two hours after she was brought to the emergency room of Bridgeport Hospital. In his opinion, even assuming that the victim had fallen off the mattress and had a seizure, that would not have caused the injuries sustained by the victim because “the severity of
The state presented medical testimony to establish that the victim died as a result of a skull fracture caused by a fall from height of fifteen or twenty feet, or a “significant degree of blunt force that maybe consistent with either falling from a significant height . . . striking a wall or a hard floor with significant force.” The medical testimony presented by the state is consistent with the testimony of the defendant’s downstairs neighbors, who were awakened by a loud noise that shook the house. The defendant testified that only he initially attended to the victim on the night in question, and that the victim’s mother did not participate until he woke her up and told her that something was wrong. Finally, the jury heard the testimony of Michele Bruno, the victim’s aunt, indicating a possible motive for the crime. Michele Bruno testified that after the victim returned to Connecticut from Florida in September or October of 1992, the defendant would ask her when she was coming to get the victim.
With regard to the risk of injury count, the defendant was charged under General Statutes § 53-21, which provides that “[a]ny person who wilfully or unlawfully causes or permits any child under the age of sixteen
II
The defendant next argues that the trial court abused its discretion in allowing joinder of the risk of injury and manslaughter counts. He argues that such joinder resulted in substantial prejudice and violated his right to a fair trial. We agree.
The information in this case charged that the defendant, on December 14,1992, committed manslaughter in
“In a joint trial ... an omnipresent risk is that ‘although so much [of the evidence] as would be admissible upon any one of the charges might not [persuade the jury] of the accused’s guilt, the sum of it will convince them as to all.’ United States v. Lotsch, 102 F.2d 35, 36 (2d Cir.), cert. denied, 307 U.S. 622, 59 S. Ct. 793, 83 L. Ed. 1500 (1939).” State v. Boscarino, 204 Conn. 714, 721-22, 529 A.2d 1260 (1987). Our Supreme Court has stated “that severance may be necessary to prevent undue prejudice resulting from consolidation of two or more charges for trial when: (1) the cases do not involve discrete, easily distinguishable factual scenarios; (2) one or more of the counts alleges brutal or shocking conduct by the accused; or (3) the trial is one of long duration or very complex. State v. Boscarino, supra, 722-24 .... Whether to grant a severance, however, is a decision committed to the sound discretion of the trial court, the exercise of which will not be disturbed
“Substantial prejudice does not necessarily result from a denial of severance even where evidence of one offense would not have been admissible at a separate trial involving the second offense. A trial court will not have manifestly abused its discretion in denying severance if the state’s orderly presentation of evidence has prevented confusion of the jury and has enabled the jury to consider the evidence relevant to each charge separately and distinctly.” (Internal quotation marks omitted.)States v. Jones, 37 Conn. App. 437, 446, 656 A.2d 696, cert. denied, 233 Conn. 915, 659 A.2d 186 (1995).
In the present case, we initially conclude that the two counts do not involve discrete, easily distinguishable factual scenarios. In addition, the evidence relating to the risk of injury count and the manslaughter count was presented at the same time and culminated with the evidence of the death of the victim on December 14, 1992.
We further agree with the defendant that the evidence presented against him on the manslaughter count consisted primarily of the noises heard by the defendant’s downstairs neighbors, and the testimony of Bruno’s sister that the defendant wanted her to “come and get the baby.” There was also conflicting evidence from medical experts as to what caused the victim’s injuries. Considering the nature of this evidence, and the evidence admitted on the risk of injury count that the victim had suffered physical abuse in the autumn of
With regard to the second Boscarino factor, we conclude that the manslaughter count alleged “brutal or shocking conduct by the accused.” As stated previously, the state alleged on the manslaughter count that the victim suffered her fatal injuries by a severe degree of blunt force, consistent with either falling from a significant height or striking a wall or hard floor with significant force. Such abuse perpetrated on a sixteen month old child afflicted with Down’s Syndrome certainly falls within the category of “brutal or shocking conduct by the accused.”
“Having established the scope and extent of the prejudice to which the defendant was exposed, we must next determine whether the jury instruction at the conclusion of trial was adequate to mitigate that prejudice.” State v. Horne, 215 Conn. 538, 551, 577 A.2d 694 (1990). In State v. Horne, 19 Conn. App. 111, 562 A.2d 43 (1989), rev’d, 215 Conn. 538, 577 A.2d 694 (1990), we recognized the potential prejudice involved in the consolidation of four cases for trial, yet we affirmed the trial court’s consolidation of the cases on the ground that the trial court’s jury instruction cured the potential prejudice. We stated in that case that “[t]he court’s instructions were particularly thorough and extensive. The court referred to the ‘four separate and distinct alleged incidents or transactions,’ and repeatedly instructed the jury that it must consider each incident separately from the others, stressing that to do so was of the ‘utmost importance,’ and ‘most important.’ The court further cautioned the jury that it ‘must not mix the evidence of one incident with the evidence of another,’ and that its judgment on one must not affect its judgment on another. The court emphasized that the cases were con
“Later in its charge, the court reminded the jury that although the same law of robbery applied to each of the incidents, ‘you must apply it separately in each of the four incidents and not . . . run them together because we have tried them together.’ Finally, at the end of its instructions the court reminded the juiy ‘to treat [each] incident separately,’ and to put the state to its burden of proof separately on each incident.” Id., 121-23. After granting certification, our Supreme Court held, however, that the charge did not mitigate the prejudice and reversed our decision. State v. Horne, supra, 215 Conn. 545-46.
The jury charge in the present case falls far short of the charge that was deemed inadequate in Home. Prior to commencing voir dire, the trial court stated that “[e]ach count is a separate crime and must be proved by the state individually beyond a reasonable doubt” and “there are three separate charges against this defendant in this information.” At the commencement of its final charge, the trial court briefly instructed that “[e]ach count is a separate crime and you must consider them separately in your deliberations.” The only other reference in the final charge to the separate counts was when the court later reiterated that “each and every
In this opinion LAVERY, J., concurred.
General Statutes § 53a-55 (a) provides in pertinent part: “A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person. . . .”
General Statutes § 63-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”
We address the defendant’s claim regarding sufficiency of the evidence first since the defendant would be entitled to an acquittal if the evidence were, in fact, insufficient In light of our conclusion that the trial court improperly consolidated the manslaughter and risk of injury counts, however, we need not address all of the defendant’s remaining claims. See State v. Coleman, 41 Conn. App. 255, 257 n.6, 675 A.2d 887 (1996).
The videotape was played for the jury.
On cross-examination, Shah, admitted that it was possible that the fracture was four months old. This is consistent with the testimony of the defense experts, who opined that the fracture occurred between three and four months prior to the victim’s death.
A portion of Michele Bruno’s written statement, admitted into evidence pursuant to State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), was read to the jury. It stated: “Q. Did [the defendant] ever talk to you about the baby?
“A. Yeah. When I was on the phone with my sister I could hear him in the background. He was saying, ask her when she is coming for the baby. He would say that I could take the baby for good. He would say, come soon. He was always, well, comments like that.”
As stated above, the parties dispute when the victim actually sustained the fractured leg.
The parties have not raised the question of whether a defendant must have any relationship or legal duty to a victim in order to be charged with risk of injury to a child by wilfully or unlawfully causing or permitting the victim to be placed “in such a situation that its life or limb is endangered, or its health is likely to be injured or its morals likely to be impaired.” The statute itself contains no stated requirement or element that there be any legal relationship or duty between the victim and the defendant. The defendant makes no claim that the evidence is insufficient due to a failure of the state to prove a particular relationship or legal duty to the victim. We therefore do not address this issue.
General Statutes § 54-57 provides: “Whenever two or more cases are pending at the same time against the same party in the same court for offenses of the same character, counts for such offenses may be joined in one information unless the court orders otherwise.” See also Practice Book § 829.
As the state argued in opposition to the motion to sever, “we have the same victim involved in all three counts. We have the same location involved in all three counts. We have the same victim but also roughly the same time period involved in all three counts. While the first two counts specifically focus on December 14 of 1992, which is the date that the victim in this particular case, the state believes, suffered the head injury—the fractured skull which thereby led to her death, the risk of injury covers the time before that—November 1 to December 14. So we basically have the same time period involved. As part of that, the state intends to produce evidence of the child’s condition when seen by medical personnel in November, 1992, which goes to the risk of injury charge.
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“I would also note the state believes the witnesses will be the same for both in this case—the two charges. It just doesn’t make any sense when
In addition to relying on States. Chance, supra, 236 Conn. 31,1he dissent also relies on several other cases as examples of where the court has allowed joinder of both risk of injury and manslaughter or murder counts. We note initially that none of these cases raises on appeal the issue of whether the different counts were properly joined at trial. We further note that the factual scenarios of those cases are easily distinguishable from the present case, because in each of these cases, with regard to the risk of ipjury count, the defendant committed some act of violence, whether on the victim or a third party, whereas in the present case, the defendant was charged with having acquiesced in the physical abuse of the victim not inflicted by the defendant. See State v. DeJesus, 236 Conn. 189, 672 A.2d 488 (1996) (defendant killed his estranged girlfriend with machete while her two children were playing nearby); State v. Chicano, 216 Conn. 699, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991) (defendant killed minor victim by strangulation and killed his mother and her boyfriend with a crowbar); State v. Alford, 37 Conn. App. 180, 655 A.2d 782, cert. denied, 234 Conn. 914, 660 A.2d 357 (1995) (defendant struck and beat two year old victim on numerous occasions); State v. Migliaro, 28 Conn. App. 388, 611 A.2d 422 (1992) (state presented evidence that minor victim died as the result of head injury caused by abuse, or shaken baby syndrome, inflicted by defendant, who was convicted of criminally negligent homicide and risk of injury to a child).
Our conclusion is further supported by State v. Chance, supra, 236 Conn. 31. Unlike the trial court in the present case, the trial court in Chance ordered a bifurcation of the evidentiary portion of the trial after granting the state’s motion to consolidate arson and assault counts against the defendant. The trial court required the state and the defendant first to present all of their evidence on the arson charge, followed by the evidence on the assault charge.
The Supreme Court, affirming the trial court’s decision, noted that the two charges arose from two discrete incidents, the conduct involved was not “brutal and shocking,” the issues were simple and straightforward, the evidence was uncomplicated, and the trial lasted only five days. The Supreme Court further noted that the trial court, unlike the trial court in the present case, correctly instructed the jury as follows: “ ‘As I have already made clear throughout this proceeding, the defendant is charged with two separate offenses, even though those cases were consolidated into a single trial. In one information, the state has charged Mr. Chance with arson in the first degree and in the other information (he state has charged the defendant with assault on a department of correction employee. You must consider each alleged incident separately and distinctly from the other. You must keep them both separate in your evaluation of the facts and separate in your minds in the determination of your verdict. The evidence from one alleged incident must not be considered by you or affect your verdict in the other alleged incident. Also, by virtue of the fact that there are two separate informations pending against the defendant, you must not hold that against the defendant in any way. The court has consolidated these
The trial court in Chance later restated, “ ‘Again I will remind you that you are dealing with two separate cases here. You are to consider them separate and apart from one another . . . .’ ” Id.
Dissenting Opinion
dissenting. I disagree with the majority’s conclusion that the trial court abused its discretion in allowing the risk of injury and manslaughter counts to be tried together and that such joinder resulted in substantial prejudice and violated the defendant’s right to a fair trial. I conclude, for a number of reasons, that the trial court did not abuse its discretion in denying the defendant’s motion to sever.
The leading case of State v. Chance, 236 Conn. 31, 671 A.2d 323 (1996), reiterates the teachings of State v. Boscarino, 204 Conn. 714, 529 A.2d 1260 (1987). The factors discussed in Boscarino to determine whether severance of charges should be had are whether the charges involve distinguishable, discrete events, whether at least one of the counts involves brutal or shocking conduct whereas other counts do not, and whether the trial is of long duration or complex. Id., 722-23. In this case, the information for the manslaughter charge alleged that the crime occurred on December 14, 1992, whereas the dates of the risk of injury charge were November 1 to December 14, 1992. The man
It can never be certain before an actual attempt to introduce evidence is made and, in the event of an objection, the ruling thereon, whether particular evidence will be admissible. Here, however, it is likely that some of the injuries relating to the risk of injury charge, would likely be admissible in the manslaughter case, had that charge been tried separately. Proof of prior crimes or proof of conduct is admissible if it is relevant to some other issue material to the case, such as intent, opportunity, state of mind, common scheme or is relevant to the absence of mistake or accident. C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 8.3.2. Such evidence is admissible whether the crimes or conduct resulted in an arrest or a conviction. Id. Thus, the defendant’s right to have a jury independently consider the evidence of each crime was not significantly impaired due to the fact that the cases were tried together.
There is a clear presumption in favor of the consolidation of charges and against severance. State v. Chance, supra, 236 Conn. 38. Many cases involve joinder of charges of both risk of injury and manslaughter or murder. See State v. DeJesus, 236 Conn. 189, 672 A.2d 488 (1996); State v. Chicano, 216 Conn. 699, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991); State v. Alford, 37 Conn. App. 180, 655 A.2d 782, cert. denied, 234 Conn. 914, 660 A.2d 357 (1995); State v. Migliaro, 28 Conn. App. 388, 611 A.2d 422 (1992).
In State v. Chicano, supra, 216 Conn. 699, the defendant was convicted of three counts of felony murder,
In State v. Migliaro, supra, 28 Conn. App. 388, the defendant was tried before a jury on the charges of manslaughter and risk of injury to a child. The defendant claimed that he found the victim, the defendant’s twelve week old daughter, lying on the floor at the bottom of a set of stairs and that she was not breathing. Id., 389-90. The defendant claimed that he had no idea how the victim had gotten there. Id., 390. The victim was transported by ambulance to a hospital where she died shortly thereafter. The state produced expert medical testimony that the victim died as a result of shaken baby syndrome. Id., 391. The jury found the defendant guilty of the lesser included offense of criminally negligent homicide and of risk of injury to a child. Id., 389.
In State v. Alford, supra, 37 Conn. App. 180, the defendant was also tried before a jury and charged with counts of manslaughter in the first degree, assault in the first degree and risk of injury to a child. The injuries involved in the risk of injury charges were at least as appalling than those involved in the risk of injury charges in the present case and were even more entwined with the manslaughter charge.
On the basis of on the guidelines established in our appellate cases, I do not believe that the charges in the present case had to be severed for trial and I would not grant a new trial on that basis.
Accordingly, I respectfully dissent.