State v. Aponte

• Decision Date: 27 July 1999
• Docket Number: (SC 16028)
• Citation: 738 A.2d 117,249 Conn. 735
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. NISSA APONTE

249 Conn. 735

738 A.2d 117

STATE OF CONNECTICUT v. NISSA APONTE

(SC 16028)

Supreme Court of Connecticut.

Argued April 23, 1999.

Officially released July 27, 1999.

Callahan, C. J., and Norcott, Katz, Palmer and McDonald, Js. Lori Welch-Rubin, special public defender, for the appellant (defendant).

Michele C. Lukban, assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Joseph J. Harry, assistant state's attorney, for the appellee (state).

Opinion

KATZ, J.

The defendant, Nissa Aponte, appealed to the Appellate Court from the judgment of conviction, following a jury trial, of two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (1)¹ and two counts of risk of injury to a child in violation of General Statutes § 53-21.² Following the decision of the Appellate Court affirming the judgment of conviction; State v. Aponte, 50 Conn. App. 114, 718 A.2d 36 (1998); the defendant successfully sought certification on two of the issues decided by that court.³State v. Aponte, 247 Conn. 926, 719 A.2d 1169 (1998). We conclude that the actions of the prosecutor in giving the victim a Barney⁴ doll prior to her testifying, along with the trial court's limitations on the defendant's ability to expose to the jury the impact that such conduct may have had on her testimony, harmfully deprived the defendant of due process⁵ in connection with one of the assault convictions.

The Appellate Court set forth the following procedural history and relevant facts. "The defendant and Carmen Lopez Casado were both charged with two counts of assault in the first degree and two counts of risk of injury to a child involving the defendant's three year old daughter [victim]. The cases were consolidated for trial and, after the jury was selected, the state moved for and the trial court granted severance of the two cases. The state elected to proceed against the defendant first. The defendant moved for dismissal of the jury based on the questioning of prospective jurors concerning their opinions on the defendant's sexual orientation. The motion was denied. "The trial court denied the defendant's request to conduct a hearing into the competency of the [victim]. It also denied a motion for mistrial that was based on the prosecution's giving the victim a doll prior to her testifying. The trial court also denied the defendant's motion to strike the victim's testimony as being incomprehensible.

"The jury reasonably could have found the following facts. The defendant is the mother of the victim, who was born on April 7, 1990. At the time the victim was one and one-half years old, the defendant requested that her friend Ermys Lugo raise her. In February, 1994, Lugo turned the [victim] over to the defendant pursuant to a court order. The child was physically sound at that time.

"On March 30, 1994, the defendant arrived at the home of her mother, Irma Ramos, with [the victim], whose eyes were black and swollen. The defendant explained that the [victim] had struck the inside of the car. The defendant left the [victim] with Ramos after being assured that the latter would not notify the police. Ramos noticed marks on the victim's back, front and legs when giving her a bath. Ramos secreted the child with a neighbor to hide her from the defendant. The neighbor called the Bridgeport police on March 31, 1994. The [victim] was taken by ambulance to Bridgeport Hospital where she remained for a few days. She told Ramos that both the defendant and Lopez Casado had hurt her.

"Officer David Osika of the Bridgeport police department responded to the neighbor's call and inquired about who had injured the victim. The victim indicated that her mother, the defendant, had done it. Detective Michael Whittaker of the Bridgeport police youth bureau also responded to the neighbor's home and asked the victim how she was injured. The victim said `la pata,' Spanish slang for lesbian. Whittaker interviewed the defendant, who implicated Lopez Casado as having harmed the victim.⁶ He took another statement from the victim that both the defendant and Lopez Casado had hit her using a belt and that Lopez Casado inflicted abrasions to her knees and burned her finger.

"The emergency room physicians discovered, in addition to the eye injury, that there were numerous marks on the victim's arms, thighs, knees, lower legs, chest, abdomen, back, ear and behind the ear. Nada Abdel A'al, an emergency room pediatric resident, examined the victim and diagnosed a pancreatic injury, which proved not to be life threatening. She determined that the eye injury was serious and that the victim could not open her left eye.

"Richard Garvey, a general surgeon, testified that laboratory test results indicated possible internal bleeding consistent with an injury to the pancreas, making death a possibility. His overall diagnosis was `battered child syndrome.' This diagnosis was confirmed by Alison Driggers, a pediatrician, who also determined that the pancreatic injury created a risk of death.

"The defendant's only witness was Carmen Lopez, Lopez Casado's mother, who testified that on March 30, 1994, the victim was on the middle rear seat of her car as Lopez exited from her driveway. A truck caused her to apply the brakes suddenly causing the victim to fall forward between the front bucket seats." State v. Aponte, supra, 50 Conn. App. 117-18. Additional facts will be set forth as necessary.

I

Prior to the victim being called as a witness, both parties and the court agreed that in order to make her more comfortable, Ramos would be seated next to the victim throughout her testimony. Additionally, unaware of its origin at that time, the defendant had no objection to "the purple item" (Barney) that the victim appeared to be holding.

A few weeks prior to trial, the state's attorney had consulted with the defendant and Lopez Casado about making a gift of a stuffed animal to the victim from the court and all parties. Both the defendant and Lopez Casado indicated the impropriety of such action and assumed the matter was concluded.

During cross-examination, the defendant elicited testimony that prior to the victim testifying, the state's attorney had given the victim a Barney doll, which she had clutched throughout her direct examination. The defendant then attempted to determine whether the state had given her the doll prior to showing her the photographs of her injuries. Specifically, the defendant asked the victim whether she had had Barney with her when she viewed the photographs. When the victim failed to respond, the defendant questioned her about whether the state's attorney had given her a ride on the rolling chair in which she was seated. When the state objected, the court excused the jury and the following colloquy occurred.

"[John Forbes, Assistant Public Defender]: If your Honor please, the question of what [Joseph J. Harry, assistant state's attorney] has done with a witness is certainly relevant to show bias, prejudice, motive, any of a number of factors authorized by our court. I'm going to move, I think, at some point to strike all of the [victim's] testimony. It's like bribery. Why didn't he let me give her an animal. "The Court: Why didn't you?

"Mr. Forbes: Because I think that's improper, Your Honor. I think it's unethical, and I think it may have consequences, and I'm going to look into it. But, I just think that conduct is reprehensible on a [victim] who, by statute, is allowed to testify, who I still am going to move at the end that the testimony be stricken because it's not making any sense at all. But to then cajole and give gifts to this [victim] is outrageous. I can put on witnesses who saw Mr. Harry roll [the victim] down— up an down the hallway like it was an amusement park in the same chair that she's sitting on.

"And I think the jury's entitled to hear that with regard to what this [victim] is saying, the fresh age of the [victim], the absorption of [her] mind to be receptive to any suggestion or question or response that would please someone who gives her gifts. I just think it's outrageous. And I claim the question.

"The Court: What relevance does it have, sir?

"Mr. Forbes: Again, it goes to a motive or bias or prejudice for testifying. She thinks the prosecutor is the greatest thing since cream cheese....

"Mr. Harry: Your Honor, I think what he stated is contemptible. I would ask for sanctions. He makes blanket statements, doesn't know what he's talking about. The court had ordered—asked, not ordered, but asked that I make the [victim] more comfortable. Regardless of whether the court had done so or not, the research I have done, the seminars I have been to, I have the youngest victim so far in Connecticut that I know of testifying on the stand, Your Honor. I have to make her more comfortable. Those pictures show she went through all kinds of hell and I [have] got to make sure that she is comfortable. "I told the court and I told Mr. Forbes, the one thing she was afraid of coming into this court is you, Your Honor, taking her away from ... Miss Ramos there. That's the one thing. I got her in here. She's testified. She hasn't testified to anything inconsistent to what Miss Lugo or Miss Ramos had testified. Your Honor, if he wants to bring charges that I tried to influence a witness, let him do so and let him do so on paper so I can answer that.

"Right now, Your Honor, he's asked questions that are very ambiguous, yes, she did have Barney when I showed her the pictures in court on Friday. She cannot distinguish the times like you, I, and Mr. Forbes. He's asking these ambiguous questions trying to either cause a mistrial or to have her testimony stricken from the record. He has shown nothing, absolutely nothing to show that [the victim] was influenced by what I did. I made her more comfortable where she walks into this courtroom, she sees me and she knows she's going home with Miss...