State v. Burgos

• Decision Date: 07 February 2017
• Docket Number: AC 38394
• Citation: 155 A.3d 246,170 Conn.App. 501
• Parties: STATE of Connecticut v. Christopher BURGOS
• Court: Connecticut Court of Appeals

170 Conn.App. 501

155 A.3d 246

STATE of Connecticut

v.Christopher BURGOS

AC 38394

Appellate Court of Connecticut.

Argued September 22, 2016

Officially released February 7, 2017

Richard Emanuel, for the appellant (defendant).

James M. Ralls, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Thomas Garcia, former senior assistant state's attorney, for the appellee (state).

DiPentima, C. J., and Beach and Alvord, Js.^*

ALVORD, J.

The defendant, Christopher Burgos, appeals from the judgments of conviction, rendered after a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a–70(a)(2), one count of risk of injury to a child in violation of General Statutes § 53–21(a)(2), one count of aggravated sexual assault of a minor in violation of General Statutes § 53a–70c(a)(1), and, in a separate information, one count of attempt to escape from custody in violation of General Statutes §§ 53a–49(a)(2) and 53a–171(a)(1). On appeal, the defendant claims that the trial court erred (1) by not sua sponte ordering pretrial and posttrial competency hearings and canvassing him on his purported right to testify at those hearings; (2) in joining the sexual assault information and the escape information for trial; (3) in denying his motion to suppress evidence seized from his apartment; and (4) in denying his motion to vacate his convictions for sexual assault in the first degree and risk of injury to a child on double jeopardy grounds. We affirm the judgment in part, and we reverse the judgment in part.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. On August 31, 2011, the eleven year old victim and her sisters were sitting outside their home when the defendant approached them.¹ The victim did not know the defendant, but she recalled seeing him the day before. The defendant invited the victim and one of her sisters to go to the store with him to get candy. The victim agreed to go to the store with the defendant while her sister remained behind. Once the victim and the defendant were inside the store, however, the defendant said that he did not have any money on him to purchase anything. The defendant offered to call the victim's sister to ask if the victim could go with him to his apartment nearby to get some money. The defendant purportedly called the victim's sister and received permission for the victim to come with him, but when the victim asked to speak to her sister, the defendant said that her sister had already hung up the phone.

The defendant and the victim then walked to the defendant's apartment, which was a few blocks away from where the victim lived. Once at the defendant's apartment complex, the victim told the defendant that she wanted to wait outside on the sidewalk for him while he retrieved his money. The defendant told the victim to go upstairs. When she refused, he pushed her upstairs and into his apartment on the second floor. The victim tried to scream for help, but the defendant covered her mouth. Once inside the defendant's apartment, the victim hit and kicked the defendant in an attempt to get away, but she could not fight him off.² The defendant pushed her into his bedroom and onto his bed. Once their pants were off, the defendant retrieved a small package from his dresser drawer. The victim again attempted to run away from the defendant, but he pushed her onto his bed, put a clear cream on her vagina, and vaginally penetrated her.

After sexually assaulting the victim, the defendant walked her home and told her that if she told anyone what happened, he would come after her. Despite the defendant's threat, the victim told her mother what happened to her once she was inside her home. The victim's mother called the police, and the victim directed the police to the defendant's apartment. The victim was taken then to an emergency room, where a sexual assault evidence collection kit was used.

That same day, the defendant was arrested at his apartment. When officers initially encountered the defendant outside of his apartment, they detained him for investigatory purposes. While he was detained, the defendant consented to a search of his apartment. During their search of the defendant's apartment, officers found a small packet of personal lubricant with the corner torn off in the trash in the defendant's bathroom and a corner piece of foil that had been torn from the packet of lubricant in the defendant's bedroom. At the police department, the defendant consented to a buccal swab so that officers could obtain a sample of his DNA. A comparison of the victim's vaginal swab and the defendant's buccal swab confirmed the presence of the defendant's spermatozoa in the victim's vaginal cavity.

For the reasons addressed later in this opinion, the defendant was not released on bond following his arrest. On September 26, 2012, during a pretrial hearing, the defendant attempted to escape custody by running for the back door of the courtroom. Judicial marshals immediately apprehended the defendant. The state subsequently charged the defendant in a separate information with attempt to escape custody in violation of §§ 53a–49(a)(2) and 53a–171(a)(1).

On October 9, 2013, a consolidated trial commenced on a three count long form information relating to the defendant's sexual assault of the victim and a one count long form information relating to the defendant's attempt to escape custody. On October 11, 2013, the jury returned a guilty verdict on all counts. On June 18, 2014, the court imposed a total effective sentence of fifty years imprisonment followed by five years special parole for the two informations. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant raises four claims with respect to his competency to stand trial and the process by which he was found competent to stand trial. The following additional facts are relevant to these claims. On September 1, 2011, the defendant was arraigned and appointed counsel from the public defender's office. During arraignment, defense counsel noted that the defendant was a "client" of a mental health facility and that "[h]e appears to have been steady with his treatment there." The court, Newson, J. , stated that "mental health attention should be noted on the [mittimus]." During the defendant's first six court appearances, between September 1, 2011 and December 12, 2011, his courtroom behavior was unremarkable.

On January 17, 2012, the defendant was unable to be transported to court because "while in the custody of [the Department of Correction] he covered himself in feces and refused to be transported." Defense counsel moved for a competency examination pursuant to General Statutes § 54–56d, and the court³ granted the motion and issued an order for a competency examination. On March 28, 2012, the Department of Mental Health and Addiction Services, Office of Forensic Evaluations, submitted a competency report, in which the clinical team unanimously concluded that, while the defendant was presently not competent to stand trial, there was a substantial probability that he could be restored to competency within the statutory time frame.⁴ On March 29, 2012, the court held a competency hearing, at which the court agreed with the clinical team's assessment, ordered that the defendant receive treatment in an inpatient setting, and continued the case until May 31, 2012.

On May 25, 2012, Dr. Mark S. Cotterell, a forensic psychiatrist, submitted a second competency report to the court, in which he concluded that the defendant had not yet been restored to competency but was still capable of restoration within the statutory time frame. Cotterell's report acknowledged that the defendant had a history of mental health treatment and engaging in behaviors indicative of mental illness. However, Cotterell also observed that "there appears to be a volitional component to [the defendant's] presentation. It appears that he knows more than he is willing to admit." On May 31, 2012, the court held a competency reconsideration hearing at which it concluded that the defendant was not competent but was restorable to competency and ordered the defendant to continue to receive treatment in an inpatient setting. See General Statutes § 54–56d(k).

On August 16, 2012, Cotterell submitted a third competency report to the court in which he concluded that the defendant was competent to stand trial. In that report, Cotterell noted that the defendant had consistently refused to participate in formal evaluations. However, Cotterell detailed aspects of the defendant's behavior that indicated that "he has the capacity to understand his legal situation and the capacity to assist his attorney if he were to choose to do so." The report observed that "there is definitely a volitional component" to defendant's refusal to engage in a formal evaluation and that "[i]t is clear that he knows more than he is willing to admit." The report also stated that "[the defendant] is not currently taking psychiatric medication, and he has not demonstrated any symptoms of a serious mental illness that would require such treatment." On August 31, 2012, the court held a competency reconsideration hearing to reassess the defendant's competency to stand trial. At the hearing, Cotterell's report was marked as an exhibit, and defense counsel and the state stipulated that the defendant was competent to stand trial. The court then found that the defendant was competent to stand trial based on Cotterell's report.

On September 26, 2012, the defendant attempted to escape from the custody of the judicial marshals after being brought into the courtroom. When court reconvened after a recess, the defendant was not present. The court indicated that he was "not behaving in any appropriate manner in the lockup," was "spitting at the cell door" and was "giving the correction officers a difficult...