State Of Conn. v. Roger B, No. 18367.

• Decision Date: 27 July 2010
• Docket Number: No. 18367.
• Citation: 999 A.2d 752,297 Conn. 607
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticutv.ROGER B.

297 Conn. 607

999 A.2d 752

STATE of Connecticutv.ROGER B.^*

No. 18367.

Supreme Court of Connecticut.

Argued April 22, 2010.

Decided July 27, 2010.

Daniel J. Krisch, special public defender, with whom was Brendon P. Levesque, for the appellant (defendant).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were David Shepack, state's attorney, and James Fletcher, senior assistant state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, KATZ, PALMER, VERTEFEUILLE, ZARELLA and McLACHLAN, Js.^**

McLACHLAN, J.

The defendant, Roger B., appeals ¹ from the trial court's judgment of conviction, following a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(2), two counts of sexual assault in the fourth degree in violation of General Statutes § 53a-73a(a)(1)(A) and three counts of risk of injury to a child in violation of General Statutes § 53-21(2).² On appeal, the defendant argues that his constitutional right to due process was violated by the four and one-half year delay between the completion of the investigation into the allegations of sexual abuse and the application for an arrest warrant by the police because the delay was unjustifiable and caused him actual substantial prejudice. The defendant also argues that the trial court improperly instructed the jury regarding the basis for its findings in evaluating witness credibility in violation of his constitutional right to a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 1995, the defendant lived with his girlfriend, J.T., and her three children; two girls, S and J, and one boy, K. S was eight years old and J was four years old. ³ There were two bedrooms on the first floor of the house. S and J shared a bedroom, as did the defendant, J.T and K. The living room and kitchen were located on the second floor. Almost nightly, the defendant would wake up S and take her upstairs to the living room, where he would sexually assault her.⁴

In May, 1996, the defendant, J.T. and her children and the defendant's mother moved to a new house. The kitchen, living room and S's bedroom were on the first floor of the house. There were three bedrooms on the second floor. The defendant and J.T. shared one bedroom, and J and K shared another. The defendant's mother also slept on the second floor. In the new house, the defendant would wake up J and take her to the living room or to his bedroom and sexually assault her.⁵

In the fall of 1999, J.T. entered a psychiatric ward. S, J and K lived with the defendant, who was their sole caretaker ⁶ until representatives from the department of children and families (department) removed the children because the defendant was not a relative. In February, 2000, the department placed J in a foster home. The department subsequently placed S in the same foster home. A few months after living in the foster home, S told her boyfriend that she had been abused by the defendant. S later told her foster mother and her therapist that the defendant had abused her. When J also told her foster mother that the defendant had abused her, the foster mother reported the allegations to the department.

Following a two day trial, the jury returned verdicts of guilty on all six counts. On April 18, 2008, the trial court sentenced the defendant to a total effective term of twenty-nine years incarceration, execution suspended after twenty-three years, with thirty years of probation. This appeal followed.

I

The defendant first claims that the delay of approximately four and one-half years between the completion of the investigation by the police into the claims by S and J that they had been sexually abused by the defendant and the application for a warrant for his arrest violated his constitutional right to due process pursuant to the fourteenth amendment to the United States constitution.⁷ The defendant argues that he suffered actual substantial prejudice as a result of this delay because it denied him the opportunity to investigate the allegations made by S and J while the memories of the alleged abuse were fresh in their minds. The defendant further claims that the delay was unjustifiable because it was caused without any reasonable explanation by the police officer handling the investigation. The state contends that this unpreserved claim is not reviewable because the record is not adequate for our review. The state also argues that, if we review the defendant's claim, the defendant cannot prevail because the record fails to identify the purported reason for the delay and further fails to show that the defendant suffered actual prejudice. Additionally, the state argues that even if the defendant could identify the reason for the delay or show actual prejudice, he cannot prevail on his due process claim because he has not established that the state acted with the bad faith intention to use the delay to undermine his defense at trial. We agree with the state that the record is inadequate for review of the defendant's due process claim because it contains no evidence demonstrating that the defendant suffered actual prejudice as a result of the delay.

The record reveals the following additional facts relevant to this claim. On July 7, 2000, the department reported the alleged sexual abuse of S and J by the defendant to the New Milford police department. As part of the investigation into the allegations, Detective James Mullin of the New Milford police department watched a forensic interview of S and J.⁸ On August 31, 2000, Mullin took a written statement from the defendant in which he denied abusing S and J. The defendant gave the police permission to search his apartment and storage unit. Mullin continued the investigation in January, 2001, when he spoke with the foster mother as well as S's boyfriend. Although the investigation took place years earlier, Mullin did not obtain a warrant for the defendant's arrest until July 6, 2005. On the same date, the state charged the defendant with one count of sexual assault in the first degree, two counts of sexual assault in the fourth degree, and two counts of risk of injury to a child.⁹ The defendant was arrested two years later in Indiana.

At trial, during cross-examination, defense counsel asked Mullin why the warrant was not drawn up until 2005. Mullin responded, “Because that's when it was drawn up.” Mullin also testified, in response to questions by defense counsel, that no other evidence or statements relating to the investigation were uncovered between 2000 and 2005, and that the warrant was drawn up on the basis of “the forensic interviews and the original statements.” ¹⁰ On redirect examination, the prosecutor asked whether the recommendations with regard to J's welfare, which were contained in a report generated by the child abuse investigation team, influenced Mullin's “decision as to how to proceed with the investigation.” Mullin responded, “Yes.” Defense counsel then asked, on recross-examination, whether there was “a recommendation that [the police] not pursue the case for five years.” Mullin responded that there was not.

Because the defendant's claim is unpreserved, he seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), which provides that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.... The first two Golding requirements involve whether the claim is reviewable, and the second two involve whether there was constitutional error requiring a new trial.” (Internal quotation marks omitted.) State v. Brewer, 283 Conn. 352, 358, 927 A.2d 825 (2007). Under the first prong of Golding, “[t]he defendant bears the responsibility for providing a record that is adequate for review of his claim of constitutional error. If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant's claim.” State v. Golding, supra, at 240, 567 A.2d 823.

In the present case, the defendant claims that the state violated his right to due process by waiting more than four years after the completion of its investigation to seek a warrant for his arrest. “[T]o establish a due process violation because of pre-accusation delay, the defendant must show both that actual substantial prejudice resulted from the delay and that the reasons for the delay were wholly unjustifiable, as where the state seeks to gain a tactical advantage over the defendant .... [P]roof of prejudice is generally a necessary but not sufficient element of a due process claim.... [Additionally,] the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Morrill, 197 Conn. 507, 522, 498 A.2d 76 (1985), citing United States v. Marion, 404 U.S. 307, 322, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).

Although the record in this case lacks any justifiable reason for the delay, the record is also devoid of facts regarding whether and to what extent the defendant suffered actual prejudice as a result of the delay. The defendant posits that, because he was convicted solely on the words of his two accusers, the four and one-half year delay deprived him of the opportunity to find...