State v. Calabrese

• Decision Date: 15 August 2006
• Docket Number: No. 17560.,17560.
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Edan CALABRESE.

Page 1044

902 A.2d 1044

279 Conn. 393

STATE of Connecticut v. Edan CALABRESE.

No. 17560.

Supreme Court of Connecticut.

Argued January 5, 2006.

Decided August 15, 2006.

COPYRIGHT MATERIAL OMITTED

Mark Rademacher, assistant public defender, with whom, on the brief, were Julia E. Dudics and Rebecca L. Perreault, certified legal interns, for the appellant (defendant).

Bruce R. Lockwood, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, Seth R. Garbarsky, deputy assistant state's attorney, and Christine Collyer, former special deputy assistant state's attorney, for the appellee (state).

SULLIVAN, C.J., and BORDEN, NORCOTT, PALMER and ZARELLA, Js.^*

NORCOTT, J.

The defendant, Edan Calabrese, appeals from the judgment of conviction of one count of assault of an elderly person in the second degree in violation of General Statutes § 53a-60b¹ in one case, and one count of violation of a protective order in violation of General Statutes (Rev. to 2001) § 53a-223² in another case. On appeal,³ the defendant claims, inter alia, that the trial court improperly excluded from evidence certain messages left on his answering machine that were admissible under § 8-8 of the Connecticut Code of Evidence,⁴ because they would have demonstrated the non-testifying complainant's bias and motive to make a false accusation of assault against him. We conclude that the trial court's exclusion of the answering machine recording was both improper and harmful and, accordingly, we reverse the judgment of conviction as to the assault charge. We affirm the judgment of conviction as to the defendant's violation of a protective order.

The record reveals the following facts and procedural history. The complainant, Maureen Calabrese, is the defendant's mother, and was sixty-nine years old at the time of the events at issue herein. On the evening of January 4, 2002, Branford police and paramedics, including Paul Cipriani, a paramedic, and Duncan Ayr, a detective, found the following scene at the complainant's home, which was located in front of the defendant's family owned home.⁵ The complainant's now late husband, William Calabrese, Sr., was in a hospital bed in the living room of the house, unable to get up. The dining room of the house contained a hutch with broken glass, and there was glass debris on the floor. The complainant lay on the floor of the kitchen, surrounded by five or six blood soaked paper towels.

Cipriani testified that he had assessed and interviewed the complainant, and that she appeared scared and hesitant to answer his questions. Ayr testified similarly, noting that the complainant appeared disheveled and upset, with dried blood on her nightgown. The complainant did, however, tell Cipriani that she was injured when attempting to block a vase that had been thrown at her at approximately 10 a.m. Cipriani cleaned and bandaged the complainant's wound and monitored her while the police interviewed her and seized evidence from the scene, including a small vase. The complainant then refused ambulance transportation to the hospital.

The next day, however, the complainant's other son, William Calabrese, Jr. (William), brought her to Yale-New Haven Hospital, where she was diagnosed with a fracture of the olecranon, which is the bottom portion of the elbow joint. David Gibson, an orthopedic surgeon who had treated the complainant, testified that he operated immediately as her injury was a true limb threatening emergency because of the open wound and the delay in seeking treatment, which had increased the risk of infection.⁶

On the basis of information gained through interviews with William and the complainant, the Branford police arrested the defendant on the morning of January 5, 2002.⁷ Under Docket No. CR02-394, the state charged the defendant with three alternative counts of assault of an elderly person in the second degree in violation of § 53a-60b and General Statutes § 53a-60 (a)(1) through (3).

In connection with the defendant's arraignment, the court, Alexander, J., issued a family violence protective order on January 7, 2002 (protective order). The protective order directed the defendant, inter alia, to refrain from threatening, harassing or assaulting the complainant, and from entering the family dwelling or dwelling occupied by the complainant. According to the testimony of Tracy Genues-Johnson, a court clerk, the defendant was given a copy of and advised of his rights under the protective order. The protective order remained in effect and was not modified while the case was pending.

Several months later, on September 15, 2002, at approximately 9 p.m., Mark Ciarciello, a Branford police sergeant, received a call from William, and as a result of that conversation, responded to the complainant's home with several other officers. The complainant, who was crying and appeared disheveled and nervous, let Ciarciello and the other officers enter the house. The complainant also was holding her arm at the time,⁸ but she was evasive about how her injuries had occurred.⁹ Ciarciello knew that the protective order was in effect against the defendant,¹⁰ and he called for a K-9 unit to assist with a search of the house for the defendant.

Shortly thereafter, David Atkinson, the Branford K-9 officer, arrived with Red, a police trained German Shepherd. Relying on Red's ability to detect nervous or apprehensive persons, they searched the house and found the defendant naked on the roof of the house near a small porch located off a second floor bedroom. The defendant then climbed around the chimney to come down onto the porch, at which point Atkinson and another officer, Arthur Ferris, took the defendant into custody. Under Docket No. CR02-9309, the state then charged the defendant with one count of violating a protective order in violation of General Statutes § 53a-110b, and one count of assault of an elderly person in the third degree in violation of General Statutes §§ 53a-61(a)(1) and 53a-61a.

On the state's motion, the trial court, Thompson, J., joined the two cases for trial. Subsequently, the case was tried to the jury, with Rodriguez, J., presiding. Neither the defendant nor the complainant testified at the trial.¹¹ After the state rested its case, the defendant moved for judgments of acquittal on all charges. With respect to Docket No. CR02-394, the trial court granted the motion for judgment of acquittal as to the first and second counts of assault of an elderly person in the second degree, but denied it as to the third count, which referred to the defendant's "reckless" conduct on January 4, 2002. With respect to Docket No. CR02-9309, the trial court granted the defendant's motion for judgment of acquittal on the assault of an elderly person in the third degree charge, but denied the motion as to the violation of the protective order on September 15, 2002. Thereafter, the jury returned verdicts of guilty of assault of an elderly person in the second degree in violation of § 53a-60b, and of violation of a protective order in violation of § 53a-223. On December 19, 2003, the trial court rendered judgment in accordance with the jury's verdict, and sentenced the defendant to a total effective sentence of five years imprisonment suspended after the mandatory minimum two years, with five years of probation.¹² This appeal followed.

On appeal, the defendant contends that there was insufficient evidence to prove beyond a reasonable doubt that he "recklessly" caused the complainant's injuries. The defendant also claims that the trial court improperly: (1) admitted into evidence, under both the Connecticut Code of Evidence and the United States Supreme Court decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), testimonial and documentary evidence containing inadmissible hearsay statements made by the nontestifying complainant to police officers and medical personnel;¹³ and (2) refused to admit into evidence certain messages left by the complainant on the defendant's answering machine.

I

We begin with the defendant's claim that there is insufficient evidence to prove beyond a reasonable doubt that he recklessly caused the complainant's injuries. This claim was properly preserved by his motion for a judgment of acquittal on that charge; see State v. Padua, 273 Conn. 138, 146 n. 12, 869 A.2d 192 (2005); and we must review it in addition to his evidentiary claims because, if the defendant prevails on the sufficiency claim, he is entitled to a directed judgment of acquittal rather than to a new trial. Id., at 179, 869 A.2d 192; see also State v. Gray, 200 Conn. 523, 535-36, 512 A.2d 217, cert. denied, 479 U.S. 940, 107 S.Ct. 423, 93 L.Ed.2d 373 (1986). Moreover, our sufficiency review does not require initial consideration of the merits of the constitutional and evidentiary claims because "appellate review of the sufficiency of the evidence, pursuant to [Gray] properly includes hearsay evidence even if such evidence was admitted despite a purportedly valid objection. Claims of evidentiary insufficiency in criminal cases are always addressed independently of claims of evidentiary error." State v. Carey, 228 Conn. 487, 496, 636 A.2d 840 (1994).¹⁴

"The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

"We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts...