STATE OF CONNECTICUT v. JUAN CARLOS GONZALEZ
(AC 36656)
Alvord, Prescott and Mihalakos, Js.
Argued May 24—officially released August 2, 2016
Alvord, Prescott and Mihalakos, Js.
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(Appeal from Superior Court, judicial district of Tolland, geographical area number nineteen, Graham, J.)
Elizabeth Knight Adams, assigned counsel, for the appellant (defendant).
Nancy L. Walker, deputy assistant state‘s attorney, with whom, on the brief, were Matthew C. Gedansky, state‘s attorney, and Elizabeth C. Leaming, senior assistant state‘s attorney, for the appellee (state).
Opinion
MIHALAKOS, J. The defendant, Juan Carlos Gonzalez, appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in a cohabiting relationship in violation of
The jury reasonably could have found the following facts. The defendant and the victim1 immigrated to the United
The jury found the defendant guilty of two counts of sexual assault in a cohabiting relationship in violation of
I
The defendant contends that the court abused its discretion by denying his motion for a mistrial after it first admitted testimony by a police officer that the defendant, after giving an oral statement to the police, had refused to sign a sworn, written statement while in police custody, then reversed itself two days later and ruled that it would strike the testimony. The defendant moved for a mistrial, but the court denied the motion and instead struck the testimony and instructed the jury to disregard the stricken testimony. The defendant claims this was an abuse of discretion;2 we disagree.
The record reveals the following additional relevant facts. A police officer testified regarding his questioning of the defendant. The defendant told the police that he had gone through his normal morning routine, had a minor argument with their daughter regarding her clothing, and had not seen any injuries on the victim. When told that the victim had made a complaint, he responded that she was crazy. The state then asked, “[w]as he willing to give a statement that was sworn and in writing?” The police officer responded that “[h]e did not give me a sworn written statement.”
The defendant argues that State v. Grenier, supra, 257 Conn. 797, is applicable to the present case. In Grenier, two experts testified regarding the victim‘s credibility, on which the case rested, and the court overruled the defendant‘s objection to the testimony. Id., 802, 804, 807. Following closing arguments, the court, in its general instructions, stated that the jury should not rely on any witnesses’ opinions on the victim‘s credibility. Id., 805, 810. Our Supreme Court found reversible error. Id., 812. It concluded that the improperly admitted testimony had an indelible impact on all of the subsequent testimony and argument, that the opinions of two experts on the central issue in the case
were highly prejudicial, and that the instruction was ambiguous. Id., 808-11.
In the present case, in contrast, the court reversed itself before the defendant took the stand, after the victim had taken the stand, and before any closing arguments; it therefore had the potential to influence much less of the evidence than in Grenier. In addition, the police officer‘s statement did not have nearly the potential prejudicial impact of an expert opinion regarding credibility. Furthermore, the court expressly reversed itself and specifically stated what testimony was stricken. The court, therefore, properly exercised its discretion by denying the defendant‘s motion for a mistrial.
II
The defendant next claims that the court abused its discretion by ordering that he wear leg shackles throughout the trial except when testifying. He asserts that the court‘s decision was improper because the reason for shackling the defendant was not the defendant‘s behavior, but, rather, a shortage of marshals. He further contends that, although the court took appropriate steps to hide the leg shackles from the jury, he should not be required to prove that the jury was aware of the leg shackles.
Our Supreme Court set out the standard of review and pertinent law for a shackling claim in State v. Tweedy, 219 Conn. 489, 506, 594 A.2d 906 (1991): “In reviewing a shackling claim, our task is to determine whether the court‘s decision to employ restraints constituted a clear abuse of discretion. . . . A record in some fashion
The defendant‘s claim in the present case fails both prongs of the Tweedy analysis. The court set out its reasons for ordering the defendant to wear shackles on the record: the shortage of marshals, the proximity of multiple exits from the courtroom into a busy public area, the defendant‘s high bond, his motivation to flee to avoid deportation, and the defendant‘s prior behavior at a family court hearing. We see nothing in Tweedy or its progeny to suggest that these reasons are insufficient. See State v. Taylor, 63 Conn. App. 386, 390, 396, 776 A.2d 1154 (multiple doorways leading to crowded public space relevant to shackling), cert. denied, 257 Conn. 907, 777 A.2d 687, cert. denied, 534 U.S. 978, 122 S. Ct. 406, 151 L. Ed. 2d 308 (2001). In addition, the record is replete with evidence that the court took steps to hide the leg shackles from the jury by asking the clerk to view the defendant from the jury box and see if the shackles were visible, by ensuring that the shackles were muffled, by permitting the defendant to be unrestrained when testifying, and by instructing the defendant‘s attorney to alert the court if he thought the jury detected the shackles. The defendant has not pointed to any competent evidence in the record suggesting that the jury was aware of the shackles, and, under Connecticut law, the defendant bears the burden of demonstrating that the jury was aware of the shackles.3 The court‘s decision to keep the defendant shackled and the measures
III
The defendant‘s final claim is that the court abused its discretion by admitting evidence of the defendant‘s prior uncharged misconduct directed against the victim. The defendant asserts that the prejudicial effect of this evidence, which consisted of incidents of prior physical abuse and prior sexual abuse, as propensity evidence outweighed any probative value as evidence of intent, motive, and a system of criminal activity, for which it was admitted. The state responds that the evidence was properly admitted, and that the defendant failed to assert, and the record does not demonstrate, that the admission of the evidence was harmful.
We begin with the standard of review and the governing legal principles. In order to be admissible, evidence of prior uncharged misconduct of a nonsexual nature must be relevant and material for a nonpropensity purpose, such as to prove intent, motive, or a system of criminal activity. State v. Kalil, 314 Conn. 529, 539-40, 107 A.3d 343 (2014). Its probative value must also outweigh any prejudicial effect. Id., 540. Evidence of prior sexual misconduct, on the other hand, may be admitted to prove propensity in a sex crime case pursuant to our Supreme Court‘s holding in State v. DeJesus, 288 Conn. 418, 476, 953 A.2d 45 (2008), if “(1) the trial court finds that such evidence is relevant to the charged crime in
that it is not too remote in time, is similar to the offense charged and is committed upon persons similar to the prosecuting witness; and (2) the trial court concludes that the probative value of such evidence outweighs its prejudicial effect.” The trial court must still determine that the probative value outweighs any prejudicial effect, and provide an appropriate limiting instruction. See id., 476-77.
Where evidence has been improperly admitted, and the impropriety is not constitutional in nature, the defendant bears the burden on appeal of proving that its admission was harmful. State v. Eleck, 314 Conn. 123, 129, 100 A.3d 817 (2014); In re James O., 160 Conn. App. 506, 527, 127 A.3d 375, cert. granted on other grounds, 319 Conn. 956, 125 A.3d 533 (2015). We review the court‘s findings regarding relevance and the weighing of probative value versus prejudicial effect for abuse of discretion. State v. Kalil, supra, 314 Conn. 540-41.
The following additional facts are relevant to our decision. In the present case, the charged nonsexual assault was that, in December of 2012 the defendant had pushed the victim against a wall, punched her in the face, then proceeded to beat her on the back, arm, and neck with a belt, leaving marks. There were four charged sexual assaults essentially arising out of two incidents of conduct. The most recent sexual assaults occurred after a party, also in December of 2012, at which the victim had not behaved the way the defendant wished, failing to show enthusiasm regarding the defendant‘s purchase of a dilapidated house in need of significant repair. After everyone had left, the defendant forcibly removed the victim‘s clothes, pinned her down with a bat on her neck, and forcibly raped her vaginally and anally while she told him to stop. The earlier charged sexual assaults, in November of 2012, of which the jury acquitted the defendant, were allegedly similar. According to the victim‘s testimony, while the children slept the defendant took the victim to the basement, threw her on a weight bench, placed a weighted bar on her neck, forcibly removed her clothing, and raped her vaginally and anally. As
The state offered the following uncharged misconduct evidence to the jury. The prior physical abuse evidence consisted of the victim‘s testimony that the defendant had previously left marks on her body multiple times, and would tell her to wear clothing that would hide the marks, or would forbid her from leaving the house if the marks were too big for her to hide. She also testified that he had beaten her when she was pregnant, but had been careful to avoid her belly, and had regularly thrown her to the floor or against the wall. In June of 2005, the defendant had punched her
in the back of the head, then threatened her with a knife, after which she made a 911 call. She testified that she did not call the police again after the June, 2005 incident out of fear, and that the abuse was ongoing from then until December of 2012.
The prior sexual abuse evidence consisted of the victim‘s testimony that in 2006 the defendant locked their daughter in her room, then placed a sock in the victim‘s mouth and anally and vaginally raped her while pinning her down on their bed. She did not go to a doctor, despite anal bleeding, or tell anyone out of fear. She testified that several other rapes occurred and that, at one point, a nurse noticed bruising caused by the rapes and asked her about it. At that point, she told the nurse and her doctor. She also testified regarding another specific incident which occurred on a camping trip. The defendant pulled her out of the camper where the children were sleeping, drove her to another part of the campsite, and raped her anally, orally, and vaginally. The victim also testified in general terms regarding their relationship, stating that the defendant had been initially kind, then had grown worse over time. She testified that early in the abuse he would apologize afterwards, but eventually the apologies ceased.
The defendant objected to the state‘s proposed uncharged misconduct evidence. The court overruled the objection and permitted the state to present the evidence. Before the state presented the evidence to the jury, the court provided limiting instructions that the evidence was being admitted to prove intent, motive, and a system of criminal activity, and could not be used for propensity.4
“Although relevant, evidence may be excluded by the trial court if the court determines that the prejudicial effect of the evidence outweighs its probative value. . . . Of course, [a]ll adverse evidence is damaging to one‘s case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse
the emotions of the jur[ors].” (Internal quotation marks omitted.) State v. Pena, 301 Conn. 669, 675-76, 22 A.3d 611 (2011). Where “[t]he uncharged misconduct evidence [is] not as extreme as the charged crime [and] . . . [t]he court also [gives] a limiting instruction immediately,” the prejudicial impact is lessened and the evidence is more likely admissible. State v. Smith, 313 Conn. 325, 342, 96 A.3d 1238 (2014); see State v. Franko, 142 Conn. App. 451, 466, 64 A.3d 807, cert. denied, 310 Conn. 901, 75 A.3d 30 (2013).
In this case, the victim was the target of all prior uncharged misconduct and the evidence was highly relevant to motive, intent, and a system of criminal activity. It demonstrated the place of the charged incidents within the larger history of the defendant‘s treatment of the victim, and it showed the defendant‘s long-term use of physical and sexual violence to intimidate and control the victim. The court limited any potential prejudicial impact by providing limiting instructions both when the testimony was presented and in its charge to the jury. In doing so, it ensured that the jury would use the prior uncharged misconduct evidence only for its proper purpose, and, therefore, that the evidence would not be unfairly prejudicial. See State v. Grenier, supra, 257 Conn. 810 (jury presumed to follow curative instructions). Finally, the uncharged acts were no more inflammatory than the charged acts. The court, therefore, was within its discretion to determine that the evidence was relevant to a proper purpose and that its probative value outweighed its prejudicial effect.5
When instructing the jury regarding the prior sexual misconduct evidence, the court was not required to bar the jury from considering whether that evidence demonstrated a propensity to commit the charged crimes. See State v. DeJesus, supra, 288 Conn. 476. Therefore, in evaluating the court‘s decision regarding the probative value versus the prejudicial effect, we need not consider any prejudice caused by the jury considering
Finally, we will briefly discuss the evidence regarding two incidents which were attenuated in time from the charged incidents. The physical assault in 2005 and the sexual assault in 2006 occurred a significant time before the charged conduct. Attenuation in time is a relevant consideration for barring uncharged misconduct, but this evidence, nonetheless, had sufficient probative value in that these incidents demonstrated the defendant‘s escalating abuse of the victim. See State v. Kant-
orowski, supra, 144 Conn. App. 490 n.5 (no lapse of time has been determined per se too remote). In addition, rather than being isolated, attenuated incidents, they marked the start of a continuous pattern of abuse. The court did not abuse its discretion in admitting this evidence.
The judgment is affirmed.
In this opinion the other judges concurred.