STATE OF CONNECTICUT v. SUSHIL GUPTA
(AC 27043)
Flynn, C. J., and Lavine and West, Js.
Arguеd September 4, 2007—officially released January 15, 2008
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After careful review of the charge in its entirety, we conclude that it is reasonably possible that the jury was misled by the court‘s instruction on defense of premises. Consequently, we reverse the judgment of conviction.
The judgment is reversed and the case is remanded for a new trial.
In this opinion the other judges concurred.
Opinion
WEST, J. The defendant, Sushil Gupta, a physician, appeals from the judgments of conviction, rendered after a jury trial, of two counts of sexual assault in the fourth degree in violation of
On the basis of complaints filed by M, J and D,1 the defendant was charged in three, two count informations
On July 27, 2005, the court granted the defendant‘s motion for judgments of acquittal on the second counts of the informations, subjecting another person to sexual contact without such other person‘s consent, with respect to J and D. The court denied the motion for judgments of acquittal as to the remaining counts of the three informations. On July 29, 2005, the jury found the defendant guilty of subjecting a person to sexual contact by means of a false representation that the sexual contact was for a bona fide medical purpose with respect to the informations concerning M and J4
The defendant is a physiciаn with a specialization in pulmonology. At the times relevant to this appeal, the defendant was affiliated with a group practice, the Cardiothoracic and Vascular Group (medical group). The charges in the present case involved his interactions with three patients, and the facts regarding each patient will be discussed separately.
The jury reasonably could have found the following facts. On August 29, 2003, J was a college freshman. That morning, her father took her to her appointment with the defendant because she appeared to have a sinus infection and was suffering from allergies and asthma. Because J had had sinus infections in the past, she had seen the defendant once or twice previously. When the defendant entered the examining room, J revealed her symptoms to him. She also added that she was menstruating because some of the symptoms she was experiencing were common to both her sinus problems and menstruation. The defendant asked J if her breasts were tender while she was menstruating, and, as he asked her, he cupped his hands against his chest. The defendant then felt J‘s sinuses, looked in her ears, nose and throat and felt the glands in her neck. J then removed her sweatshirt, and the defendant lifted the back of her tank top and placed a stethoscope on her back to listen to her lungs.
After the examination, J did not tell her father about what had happened during her examination because she was not comfortable talking to him about it. J went home, however, and discussed the examination with her mother. J told her mother that she had a suspicion that she had been sexually assaulted. Although J did not report the incident immediately, she eventually reported it to the police department after seeing an article in the newspaper about another woman who had come forward after allegedly having been sexually assaulted by the defendant.
On November 7, 2003, D was twenty-two years old. On that day, D saw the defendant because her primary care physician had referred her to him after an X ray had revealed spots on her lungs. When D entered the exаmination room, a nurse asked her to remove her shirt but to keep her bra on and gave her a gown to
On November 12, 2003, D returned for her second appointment. After D took a pulmonary functions test, the defendant examined her. The defendant asked D to unhook her bra, and then she lay down on the table. Hе then repeated the same procedure he had done during her first examination. He first used two fingers to feel around her breasts and then felt first one breast and then the other breast with his full hand. He did this twice with each breast. At the end of the examination, the defendant made a comment to D about how she was physically fit. After that appointment, D scheduled one more appointment for three weeks later. D was uncomfortable at the previous visit, but she returned regardless in an attempt to cure her illness. At this third appointment, the defendant performed the same examination he had performed during the two previous appointments. The defendant recommended that D schedule another appointment with him in March, 2004. Although she scheduled the appointment, shе did not keep it. D did not report the incidents to the police until she heard about the defendant‘s having been charged with the sexual assaults of two other women.
In March, 2004, M was employed as a medical assistant by the medical group. She had been employed by the medical group for four years. M mainly worked in one office, but on March 26, 2004, M was filling in for the defendant‘s medical assistant in another office.
On March 26, 2004, the defendant examined M. He directed her to an examination room where she sat down on the examination table. The defendant closed the door behind them and then closed the window blinds. At that point, the defendant approached M, grabbed her face, kissed both sides of her cheeks and thanked her for coming in to help him that day. He then examined her by checking the glands in her neck and looking into her mouth. Next, he used a stethoscope on her back to listen to her breathing. As he was doing that, he asked her if he could remоve her laboratory coat and then went under her shirt to listen to her breathing. He then asked if he could undo her bra and proceeded to do so. He listened to her chest and then went under her shirt in the front and listened to her chest again. When he was finished, M pulled her shirt down. The defendant then asked M to lie down on the examination table. She lay down on the table, and he pulled her top up quickly, taking the bra with it and fully exposing her breasts. The defendant told M that he was going to check for lumps. He began to feel her breasts with his fingertips, but then he firmly grabbed both of her breasts with his hands and started to massage them. As he massaged her breasts, the defendant remarked to M that her breasts were soft and beautiful.
The defendant then again firmly massaged M‘s breasts with both of his hands. The defendant asked if he could kiss her breasts. Although M replied “no,” the defendant proceeded to put his mouth on each breast and to suck on them briefly. He also pinched her nipples. At that point, M jumped up from the table, pulled down her shirt and said, “No, we are done. That is enough.” The defendant then came up from behind M, put his hands underneath her shirt and grabbed her breasts, asking to feel her while she was sitting up. In response, M firmly took the defendant‘s hands, pulled them down and stated, “No, we are done.” The defendant then told M she was fine and did not prescribe any medication for her.
M walked out of the examination room, and the defendant followed her, asking if they could have lunch sometime. M responded “sure,” and the defendant asked if she would have lunch at the office that day. She tried to tell him that she had to get back to the other office, but he was persistent in asking her until she agreed to stay. M stayed for a few minutes before deciding to leave. Before M left, the defendant grabbed her face and kissed both sides of her cheeks. He then attempted to kiss her on the lips, but she turned her head, so he bit at her cheek in a sexual manner.
M reported the incident to her fiance later that evening. They decided, first, to call a rape victims’ hotline.
I
The defendant claims that the court abused its discretion in consolidating for trial the cases of the three alleged sexual assault victims. Specifically, the defendant claims that one alleged victim‘s claims were substantially more egregious than the other two, and, as a result, the consolidation of the cases unfairly permitted the jury to aggregate the evidence against the defendant in all three cases.
As a preliminary matter, we set forth the legal principles that guide our resolution of the defendant‘s claim. On March 18, 2005, the defendant filed a motion for severance of offenses for purpose of trial. On May 17, 2005, the state responded with a motion to consolidate. Oral argument was heard on the two motions on June 3, 2005, and, at that time, the court denied the defendant‘s motion for severance and granted the motion to consolidate.
“A court‘s discretion regarding joinder, however, is not unfettered. The detеrmination to try a defendant jointly on charges arising from separate cases may only be reached if consistent with the defendant‘s right to a fair trial.” (Citations omitted; internal quotation marks omitted.) State v. Bell, 93 Conn. App. 650, 654-55, 891 A.2d 9, cert. denied, 277 Conn. 933, 896 A.2d 101 (2006). In State v. Boscarino, 204 Conn. 714, 529 A.2d 1260 (1987), our Supreme Court identified several factors that a trial court should consider in making its determination of whether severance is required. “These factors include: (1) whether the charges involve discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant‘s part; and (3) the duration and complexity of the trial. . . . If any or all of these factors are present, a reviewing court must decide whether the trial court‘s jury instructions cured any prejudice that might have occurred.” (Internal quotation marks omitted.) State v. Ellis, 270 Conn. 337, 375, 852 A.2d 676 (2004).
The defendant‘s main argument is that M‘s claim was far more egregious than those of J and D, and, as a result, grave prejudice resulted to him. The defendant compared the facts of his case to those of Ellis. In Ellis, the defendant was convicted of sixteen counts of sexual misconduct involving three victims. One victim claimed that the defendant had grabbed her breast through her clothing. Another victim claimed that the defendant had grabbed her breast through her clothing on two different occasions. Id., 345-46. The third victim
We find the present case to be analogous to Ellis. M‘s claims against the defendant were far more egregious than the claims made by J and D. For instance, J and D claimed that the defendant had touched their breasts improperly during a purportedly legitimate examination. In contrast, M claimed that the defеndant had not only touched her breasts improperly during a purportedly legitimate examination, but also that he had made several inappropriate comments to her while examining her, had kissed and sucked her breasts without her permission, had pinched her nipples without her permission and had grabbed her breasts without her consent. During trial, the state presented M‘s case first to the jury and followed with the cases containing the less egregious claims. Therefore, as the court noted in Ellis, “joinder prevented the jury from an impartial consideration of the charges in the latter two cases.” Id., 378. Furthermore, just as in Ellis, the joinder permitted the jury to view the testimony of M as bearing on the culpability of the defendant with respect to both J
Throughout the trial and numerous times in the charge to the jury, the court told the jury to consider the three cases separately. Nevertheless, there was some prejudice to the defendant that even proper instructions from the court could not cure. Our Supreme Court has recognized that “an improper joinder may expose a defendant to potential prejudice for three reasons. First, when several charges have been made against the defendant, the jury may consider that a person charged with doing so many things is a bad [person] who must have done something, and may cumulate evidence against him . . . . Second, the jury may have used the evidence of one case to convict the defendant in another case even though that evidence would have been inadmissible at a separate trial. . . . [Third] joinder of cases that are factually similar but legally unconnected . . . present[s] the . . . danger that a defendant will be subjected to the omnipresent risk . . . 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.” (Internal quotation marks omitted.) State v. Atkinson, 235 Conn. 748, 763, 670 A.2d 276 (1996)
In the present case, some of these risks are present. For instance, there were several charges made against the defendant, and this litany of charges may have convinced the jury that he had to have committed at least one of the crimes with which he was charged. Sеcond, the jury may have cumulated the evidence from all of the cases to find the defendant guilty in J‘s and M‘s cases. The insufficiency of the court‘s repeated admonitions against cumulating the cases became obvious during the foreperson‘s reading of the verdict. When asked if the jury found the defendant guilty in the first case,
The state, however, argued that the jury‘s finding the defendant not guilty in D‘s case demonstrated that it was able to consider each of the cases separately. The state made this same argument in Boscarino, in which our Supreme Court was unpersuaded and stated, “[w]e can only speculate as to why the jury rendered varying conclusions as to the defendant‘s guilt in the four cases. It is beyond our power to probe the minds of the jurors in order to determine what considerations influenced their divergent verdicts.” State v. Boscarino, supra, 204 Conn. 724.
Because the defendant‘s behavior with respect to M was far more egregious than his behavior with respect to J and D, we conclude that substantial prejudice resulted to the defendant to the point where he did not receive a fair trial. Accordingly, we conclude that the three cases were consolidated improperly for trial.
II
The defendant also claims that the court abused its discretion and deprived him of his constitutional right to present a complete defense when it excluded evidence in the form of instructional videotapes and learned medical treatises. The court held that the evidence was irrelevant, cumulative and had a tendency to confuse the jury.
We begin our analysis by setting forth the applicable legal principles. “It is well established that a trial court has broad discretion in ruling on evidentiary matters, including matters related to relevancy. . . . Accordingly, the trial court‘s ruling is entitled to every reasonable presumption in its favor . . . and we will disturb
“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . Evidence is relevant if it tends to make the existеnce or nonexistence of any other fact more probable or less probable than it would be without such evidence. . . . To be relevant, the evidence need not exclude all other possibilities; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree.” (Citations omitted; internal quotation marks omitted.) Id., 261-62.
During direct examination of his expert witness, Francoise Joelle Roux, a pulmonologist, the defendant attempted to introduce several excerpts from medical treatises.5 The state objected to the introduction of this evidence. The state argued that the various medical texts were cumulative, and, as such, it was well within the discretion of the court to exclude them. After hearing arguments from both sides, the court sustаined the state‘s objection on several grounds, stating: “The court believes that the issues that the jury must decide on this case have to do with a sexual assault and not the details of the examinations that are not relevant in some instances to the case. The court also believes it is cumulative of the evidence that‘s coming in through this witness and Dr. [Thomas J.] Godar6 . . . . I don‘t want to confuse the jury in this case, a criminal matter, so, for those reasons, I will sustain the objection that they not be admitted as full exhibits.” On appeal, the defendant argues in his brief that the excerpts used words,
We conclude that the excerpts from the medical treatises were relevant to the issue being tried. Connecticut Code of Evidence § 4-1 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence.” The main issue at trial was whether the defendant‘s purported examination of the complainants was a legitimate medical procedure. It is only through describing and demonstrating to the jury how a pulmonary examination is to be done that the defendant would be able to prove that his examination of the complainants was consistent with recognized and accepted medical practices. The excerpts from medical treatises that the defendant attempted to introduce accomplished this task by using words, pictures and diagrams to convey the proper method for performing a pulmonary examination. Therefore, because the excerpts would have aided the trier of fact in determining a material issue in the proceeding, they were relevant.
Nevertheless, we are mindful that relevant evidence can be excluded. Connecticut Code of Evidence § 4-3 provides that “[r]elevant evidence may be excluded if its probative value is outweighеd by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.” In the present case, the court found that the excerpts were cumulative and had the potential to confuse the jury. We disagree.
Additionally, the court ruled that the excerpts had the potential to confuse the jury. We disagree. Although the excerpts do contain various medical terms, there is enough plain language that an average person with no medical background would be capable of understanding the words, pictures and diagrams. Furthermore, the attorneys were able to examine the expert witnesses while referring to the excerpts. Therefore, any confusion that might have arisen from the jurors’ looking at the excerpts during deliberation could have been clarified during direct and cross-examination of the expert witnesses. Because the evidence was relevant, noncumulative and would not tend to confuse the jury, we hold that the court abused its discretion in refusing to admit the excerpts.
The defendant also attempted to admit two videotapes depicting the proper way to conduct physical examinations. The defendant wanted to offer these videotapes during his direct examination of Roux in order to assist her with her testimony. The state filed a motion in limine to preclude the defendant from using the two videotapes. The state objected on the grounds that the videotapes were irrelevant, hearsay and not authenticated. In opposition, the defendant argued that the videotapes were relevant in that they would assist the jury
As we reasoned with the treаtise excerpts, the crucial issue in this case was whether the examinations the defendant performed were medically proper. Therefore, the videotapes, depicting a proper examination of the lungs and thorax, would have assisted the jury in deciding this material issue. Under § 4-1 of the Connecticut Code of Evidence, these videotapes were relevant. Neither of the videotapes, however, was relevant in its entirety. For instance, some parts of the videotapes discuss background information or examination information, which is not relevant to the issue of whether the defendant performed a medically proper pulmonological examination. Therefore, only certain parts of each videotape werе relevant.
The court also concluded, however, that the videotapes might mislead the jury. We do not agree. The videotapes were relatively brief and fairly easy to comprehend. At oral argument before this court, the state argued that the videotapes would prove to be misleading for the jury because there would be no expert to guide their viewing of the videotapes. We see no
Having concluded that the court‘s exclusion of the treatise excerpts and the relevant portions of videotapes constituted an abuse of discretion, we now must determine whether the error was harmless. “When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful.” (Internal quotation marks omitted.) State v. Sawyer, 279 Conn. 331, 352, 904 A.2d 101 (2006). Furthermore, “nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict.” (Internal quotation marks omitted.) Id., 357.
Wе conclude that the defendant has met his burden of proving that the error was harmful. Therefore, we cannot conclude that we have a fair assurance that the error did not substantially affect the verdict. The treatise excerpts and videotapes were critical to the main issue in the case, namely, whether the examinations performed by the defendant were medically proper. Furthermore, there was not overwhelming evidence of guilt against the defendant. Compare State v. Sandoval, 263 Conn. 524, 549, 821 A.2d 247 (2003) (exclusion of evidence, though abuse of discretion, not harmful because evidence only marginally or minimally significant and evidence against defendant strong). In contrast, the jury found the evidence closely balanced, which is evidenced by its having found the defendant
We conclude that the court improperly consolidated the three cases for trial and excluded evidence. As a result, wе reverse the judgments with respect to J and M and grant new trials.
The judgments are reversed and the cases are remanded for new trials.
In this opinion FLYNN, C. J., concurred.
LAVINE, J., concurring. I agree that the conviction of the defendant, Sushil Gupta, should be reversed and a new trial ordered because the trial court excluded evidence in the form of instructional videotapes and learned medical treatises. I agree that these rulings deprived the defendant of the right to present a defense to the serious charges against him.
I am not persuaded, however, that it was improper for the court to deny the defendant‘s motion to sever the charges related to M, one of the victims of the alleged sexual assaults at issue in this case. As the majority notes, in State v. Boscarino, 204 Conn. 714, 529 A.2d 1260 (1987), our Supreme Court set out three factоrs a trial court should consider in deciding whether severance is required. The second factor is “whether the crimes were of a violent nature or concerned brutal
It is true that in Ellis, our Supreme Court decided that the trial court had abusеd its discretion because the defendant‘s abuse of one of the victims was “substantially more egregious“; id., 378; than the abuse of the other two victims in that case. The Ellis court also determined, however, that “the [trial] court‘s instructions to the jury were insufficient to cure the substantial prejudice to the defendant that resulted from the improper joinder.” Id., 369. In this case, the court repeatedly and emphatically instructed the jury that it must evaluate each charge separately.1 I am aware that such an instruction may be difficult for a jury to follow in a case such as this, but I am not willing to conclude that it is impossible.
While I do not agree with the majority‘s conclusion that the court‘s denial of the motion to sever was reversible error given the facts of this case, I do share the