State v. James H.State v. James H.
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Raymond L. Durelli, assigned counsel, for the appellant (defendant).
Denise B. Smoker, senior assistant state‘s attorney, with whom, on the brief, were Patricia M. Froehlich, state‘s attorney, and Matthew A Crockett, assistant state‘s attorney, for the appellee (state).
Opinion
ALVORD, J. The defendant, James H., appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the first degree in violation of
The jury reasоnably could have found that, beginning at the ages of approximately five and four respectively, the defendant repeatedly sexually assaulted two of his daughters, C and J, over the course of approximately nine years. The assaults consisted of fondling, digital penetration, and oral sex. In the case of C, the assaults progressed to vaginal intercourse when she was twelve or thirteen years old. In December, 2007, the police were notified of the allegations of sexual abuse, and the victims underwent medical examinations. C tested positive for chlamydia, and the results of J‘s exam were indeterminate. At trial, both C and J provided detailed testimony regarding the sexual assaults. In addition, C testified that she had never engaged in sexual intercourse with anyone other than the defendant. The defendant, who elected to represent himself during the trial,2 testified in his own defense and categorically denied sexually assaulting either of his daughters. He claimed that they were fabricating the allegations against him in retaliation for his attempts to discipline them. At the conclusion of trial, the jury found the defendant guilty on all counts. The court imposed a total effective sentence of sixty years incarceration, execution suspended after forty years, and twenty-five years of probation with multiple special conditions. This appeal followed.
I
We first address the defendant‘s claim that the court abused its discretion when it “failed to conduct the most elementary inquiry [into an allegation of possible juror misconduct] required to satisfy the mandate set forth in State v. Brown, 235 Conn. 502, 668 A.2d 1288 (1995).” The defendant specifiсally asserts that the court failed to “conduct a basic factual inquiry into the substantive content of possible misconduct” and to “generate a record adequate to determine whether any misconduct occurred, and if it did, whether it was prejudicial.” The defendant‘s claim is unpreserved, and he seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989),3 based upon his fundamental right to a trial before an impartial jury. We review the defendant‘s claim
The following additional facts are relevant to the defendant‘s claim. On July 29, 2010, at the start of the fourth day of trial, the court advised the parties that it had been informed by a marshal that a judiсial employee, Leah Ralls, “may have overheard the jurors say something yesterday while they were out on a break.” Accordingly, the court called Ralls to the witness stand so that she could testify as to what she heard. Ralls stated that while walking past two jurors sitting at a picnic table, she “overheard someone make mention to the cross-examination of the case” but that she “did not hear any specifics” or “any details of the conversation.” In response to the court‘s questions, Ralls reiterated that she “just heard a reference” to “cross-examination” but overheard no details about “cross-examination.”5
When a trial court is presented with an allegation of jury misconduct in a criminal case, the court “must conduct a preliminary inquiry, on the record . . . regardless of whether an inquiry is requested by counsel.” State v. Brown, supra, 235 Conn. 526. “The form and scope of such inquiry is left to the discretion of the trial court based on a consideration of multiple factors, including: (1) the private interest of the defendant; (2) a risk and value assessment of additional procedural safeguards; and (3) the government‘s interest. . . . In outlining these factors, we also [have] acknowledged, however,
On the basis of the record, the trial court‘s actions in the present case satisfy the preliminary inquiry required by Brown. After learning of the alleged misconduct from the marshal, the court, on the record, alerted both the defendant and the state, and conducted a basic factual inquiry by calling Ralls to testify as to exactly what she overheard. Following this inquiry, the court concluded that “based upon what [Ralls] has testified to,” it did “not intend to explore this any furthеr with the jurors” and stated that it would “remind [the jurors] again that they are not to discuss this case with anyone or amongst themselves, as [the court] ha[d] repeatedly [instructed the jurors] throughout the case, when they go out on any future breaks.” Neither the defendant nor the state objected to the court‘s proposed course of action, and neither the defendant nor the state requested that the court make any further inquiries. As we have recognized, the trial court is in a superior position to evaluate the credibility of allegations of jury misconduct; see State v. Owens, 100 Conn. App. 619, 628 n.7, 918 A.2d 1041, cert. denied, 282 Conn. 927, 926 A.2d 668 (2007); therefore, it was well within the court‘s purview to conclude that the reference to “cross-examination” overheard by Ralls did not warrant further investigation. Moreover, “[where] the trial court was in no way responsible for the juror misconduсt . . . we have repeatedly held that a defendant who offers proof of juror misconduct bears the burden of proving that actual prejudice resulted from that misconduct.” (Internal quotation marks omitted.) State v. Bozelko, 119 Conn. App. 483, 494, 987 A.2d 1102, cert. denied, 295 Conn. 916, 990 A.2d 867 (2010), cert. denied, 571 U.S. 1211, 134 S. Ct. 1314, 188 L. Ed. 2d 331 (2014). The defendant here has not made any such showing of prejudice. Accordingly, we conclude that the court did not abuse its discretion in its investigation of alleged juror misconduct.
II
Next, we turn to the defendant‘s claim that the court abused its discretion in applying
“[O]ur standard of review regarding challenges to a trial court‘s evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. . . . In reviewing claims that the trial court abused its discretion, great weight is given to the trial court‘s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court‘s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) State v. Farah, 126 Conn. App. 437, 444-45, 13 A.3d 1108, cert. denied, 300 Conn. 931, 17 A.3d 68 (2011).
Section
“[The rape shield statute] provides for a two step process before evidence proffered by a defendant as falling under one of the statute‘s exceptions may be admitted. First, if the defendant has satisfied his prelimi-nary burden in his offer of proof to show that the evidence is potentially relevant, pursuant to the statute the trial court must conduct a hearing to determine the admissibility of the evidence. Second, [i]f, after hearing, the court finds that the evidence meets the requirements of this section and that the probative value of the evidence outweighs its prejudicial effect on the victim, the court may grant the motion.” (Internal quotation marks omitted.) State v. Crespo, 303 Conn. 589, 602, 35 A.3d 243 (2012). “In the first step of this two part process, the defendant bears the burden of showing that the proffered evidence overcomes the presumption, inherent in
Here, the defendant‘s offer of proof that C‘s sexual conduct was relevant was that C tested positive for chlamydia while the defendant “had never been diagnosed as having chlamydia.” The defendant‘s attorney subsequently admitted to the trial court, however, that the defendant had never actually been tested for chlamydia. Furthermore, the defendant offered no evidence to suggest or establish that C had been engaged in sexual conduct with someone other than the defendant beyond his broad assertions that C “had a boyfriend” and that there were issues of credibility.8 Accordingly, it is clear that the trial court acted well within its discretion when it dеnied the defendant‘s motion for lack of a good faith basis without holding an evidentiary hearing.
III
The defendant also claims that the trial court abused its discretion when it refused to allow him to cross-examine C and J about a number of instances reflected in records from the department where C and J “denied any issues or concerns in the home.” We disagree.
The following additional facts are relevant to our resolution of this claim. Prior to the commencement of trial, the defendant filed a motion for production and inspection in camera of the department records. After considering the defendant‘s offer of proof at the motion hearing on July 21, 2010, the court denied the motion on the ground that the defendant had not met his burden of showing that the records contained exculpatory material.9
“Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury, or by considеrations of undue delay, waste of time or needless presentation of cumulative evidence. . . . Because of the difficulties inherent in this balancing process, the trial court‘s decision will be reversed only whe[n] abuse of discretion is manifest or whe[n] an injustice appears to have been done. . . . On review by this court, therefore, every reasonable presumption should be given in favor of the trial court‘s ruling.” (Citation omitted; internal quotation marks omitted.) State v. Morquecho, 138 Conn. App. 841, 853-54, 54 A.3d 609, cert. denied, 307 Conn. 941, 56 A.3d 948 (2012).
In the present case, the defendant claims that the evidence he sought to elicit from the victims “was not cumulative because it constituted new material relevant to the critical issue in this case, the credibility of the [victims].” The transcript of the proceedings reveals, however, that the victims already had “testified that they had been questioned by their mother on approximately five occasions as to whether anybody had ever inappropriately touched them and they admitted that they denied that to their mother,”10 and that they each “admitted that during the [department] investigation . . . they never told anyone that [the defendant] inappropriately touched them.” Accordingly, we conclude that the court did not abuse its discretion in refusing to allow the defendant to recall his daughters in order to question them about their statements in the department‘s records.
IV
The defendant next claims that the court “violated [his] due process right to a fair trial by referring to the crimes with which the defendant had been charged as crimes exhibiting compulsive sexual criminal behavior.”11 (Internal quotation marks
The record reveals the following relevant facts. The court instructed the jury on the permitted use of uncharged sexual conduct evidence three times during the trial: (1) immediately prior to C‘s testimony;12 (2) immediately prior to J‘s testimony;13 and (3) in its final instructions.14 The defendant did not object to any of these three instructions at the time that they were given. The record is adequate for review, and we assume, without deciding, that the claim alleged is of constitutional magnitude. We conclude, however, that the alleged constitutional violation does not clearly exist; therefore, the defendant‘s claim fails to satisfy the third
Our analysis of the defendant‘s claim begins with the applicable standard of review for a claim of instructional error. “[T]o determine whether the court‘s instructions were improper, we review the entire charge to determine if, taken as a whole, the charge adequately guided the jury to a correct verdict. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . [I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled.” (Internal quotation marks omitted.) State v. Ciullo, supra, 140 Conn. App. 409.
“[P]ublic policy considerations militate in favor of recognizing a limited exception to the prohibition on the admission of uncharged misconduct evidence in sex crime cases to prove that the defendant had a propensity to engаge in aberrant and compulsive criminal sexual behavior.” (Emphasis omitted.) State v. DeJesus, 288 Conn. 418, 470, 953 A.2d 45 (2008). That approach, however, “does not vest trial courts with carte blanche to allow the state to introduce any prior sexual misconduct evidence against an accused in sex crime cases. . . . [E]vidence of uncharged sexual misconduct is admissible only if it is relevant to prove that [a] defendant had a propensity or a tendency to engage in the type of aberrant and compulsive criminal sexual behavior with which he or she is charged. . . . Accordingly, evidence of uncharged misconduct is relevant to prove that the defendant had a propensity or a tendency to engage in the crime charged only if it is: (1) . . . not too remote in time; (2) . . . similar to the offense charged; and (3) . . . committed [against] persons similar to the prosecuting witness.”16 (Citation omitted; emphasis added; internal quotation marks omitted.) Id., 472-73.
In the present case, the defendant was alleged to have sexually assaulted his two young daughters repeatedly over the course of approximately nine years of their childhood. As our Supreme Court noted
V
Finally, the defendant claims that the court improperly concluded that the adverse spousal testimony privilege, codified at
The following additional facts are relevant to this claim. During the testimony of C.H.H. at trial, the state sought to introduce into evidence approximately forty text messages sent to her by the dеfendant between December 2 and 7, 2007. The defendant objected, arguing, inter alia, that the text messages were protected by the marital communications privilege.18 The state urged the court to adopt a child abuse exception to the privilege on public policy grounds. The court agreed with the
To the extent that a trial court‘s admission of evidence is based on a statutory interpretation, our standard of review is plenary. State v. Apt, 146 Conn. App. 641, 646, 78 A.3d 249 (2013), cert. granted on other grounds, 311 Conn. 902, 83 A.3d 604 (2014). We review a trial court‘s decision to admit or excludе evidence, if premised on a correct view of the law, for an abuse of discretion. State v. Heredia, 139 Conn. App. 319, 330, 55 A.3d 598 (2012), cert. denied, 307 Conn. 952, 58 A.3d 975 (2013). Here, however, we need not decide whether the court properly interpreted and applied
“[T]he appellate harmless error doctrine is rooted in [the] fundamental purpose of our criminal justice system—to convict the guilty and acquit the innocent. The harmless error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant‘s guilt or innocence . . . and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error. . . . When an improper evidentiary ruling is nonconstitutional in nature, it is the defendant‘s burden to demonstrate that such an error was harmful.” (Citations omitted; internal quotation marks omitted.) State v. Maner, 147 Conn. App. 761, 772, 83 A.3d 1182, cert. denied, 311 Conn. 935, 88 A.3d 550 (2014). “In order to establish the harmfulness of a trial court ruling, the defendant must show that it is more probable than not that the improper action affected the result. . . . The question is whether the trial court‘s error was so prejudicial as to deprive the defendant of a fair trial, or, stated another way, was the court‘s ruling, though erroneous, likely to affect the result?” (Internal quotation marks omitted.) State v. Martinez, 143 Conn. App. 541, 568, 69 A.3d 975, cert. granted on other grounds, 310 Conn. 909, 76 A.3d 625 (2013). “[A]ny error in the admission of evidence does not require reversal of the resulting judgment if the improperly admitted evidence is mеrely cumulative of other validly admitted testimony.” (Internal quotation marks omitted.) Prentice v. Dalco Electric, Inc., 280 Conn. 336, 358, 907 A.2d 1204 (2006), cert. denied, 549 U.S. 1266, 127 S. Ct. 1494, 167 L. Ed. 2d 230 (2007).
In the present case, the admission of the defendant‘s text messages to C.H.H. did not substantially affect the jury‘s verdict because similar text messages between the defendant and his daughter, C, already were in evidence. Despite some minor differences in the specific content of the text messages, the defendant‘s messages to his wife and his daughter contained similar inculpatory statements.19
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to use the defendant‘s full name or to identify the victims or others through whom the victims’ identities may be ascertained. See