State v. Carlos P.

• Decision Date: 14 March 2017
• Docket Number: AC 39616
• Citation: 171 Conn.App. 530,157 A.3d 723
• Parties: STATE of Connecticut v. CARLOS P.
• Court: Connecticut Court of Appeals

171 Conn.App. 530

157 A.3d 723

STATE of Connecticut

v.CARLOS P.^*

AC 39616

Appellate Court of Connecticut.

Argued December 5, 2016

Officially released March 14, 2017

Pamela S. Nagy, assistant public defender, New Haven, for the appellant (defendant).

Timothy J. Sugrue, assistant state's attorney, Rocky Hill, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, Bridgeport, Deborah Mabbett, senior assistant state's attorney, Roxbury, and Edward L. Miller, deputy assistant state's attorney, Cheshire, for the appellee (state).

Lavine, Alvord and Pellegrino, Js.

LAVINE, J.

The defendant, Carlos P., appeals from the judgment of conviction, rendered after a trial to the jury, of one count of sexual assault in the first degree in violation of General Statutes § 53a–70 (a) (2), one count of attempted sexual assault in the first degree in violation of General Statutes §§ 53a–49 and 53a–70 (a) (2), risk of injury to a child in violation of General Statutes § 53–21 (a) (2), and one count of sexual assault in the fourth degree in violation of General Statutes § 53a–73a (a) (1) (A).¹ On appeal, the defendant claims that (1) his convictions of sexual assault in the first degree and attempt to commit sexual assault in the first degree violate the constitutional prohibition against double jeopardy, (2) his convictions of sexual assault in the first degree and sexual assault in the fourth degree violate the constitutional prohibition against double jeopardy, (3) the court erred by rejecting his Batson² challenge, and (4) the court abused its discretion by failing to disclose all of the psychiatric and medical records of the state's key witness. We reverse, in part, and affirm, in part, the judgment of the trial court.

The jury reasonably could have found the following facts. On November 21, 2012, the then three year old victim lived with her mother in an apartment in Danbury. The defendant is the victim's father, but he did not then live with the victim and mother. He was, however, a frequent visitor who occasionally spent the night in the apartment. The defendant and mother had a good relationship when the defendant was not abusing alcohol. He primarily spoke Spanish, and mother primarily spoke English, but the two devised a form of communication for themselves, a combination of English and Spanish.

On the day in question, the defendant appeared at the apartment after several days of drinking. He was intoxicated and asked mother for sex. Mother refused because she did not have sex with the defendant when he was drunk. That day, mother was busy preparing for the next day's Thanksgiving celebration and needed to go to the store to make a purchase. She stayed in the apartment for forty-five minutes to ensure that the defendant did not consume any additional alcohol and that he was sober enough to look after the victim. Before mother left the apartment, she gave the victim, who was in her own room, a popsicle. The defendant was sitting on the couch in the living room.

When mother returned to the apartment ten minutes later, she saw the victim, with her popsicle, reclining on the couch with her pants and underwear down around her ankle and her legs wide open. The defendant was sitting a pillow's length away from the victim in a corner of the couch with his pants unbuckled. Mother asked the defendant what was going on. The defendant responded, in Spanish, that the mother did not care for him and "chupa chapa."³ Mother slapped the defendant on the face and stated that she was going to call the police. Mother called 911 and went outside with the victim to open the door for the police.

When mother returned to the apartment, she saw the defendant in the bathroom and heard running water. She observed the defendant washing his penis and genital area. She stated to the defendant not to do that, but he buckled up his pants and left the apartment. According to mother, she had never before seen the defendant sponge bathing his penis; he showered like everyone else.

After the police arrived, the victim and mother were transported via ambulance to the emergency room, where Krystyna Isbell, a registered nurse and sexual assault nurse examiner, administered a standardized sexual assault evidence kit to the victim to collect evidence. Isbell found no signs of physical trauma to the victim and swabbed her external genitalia and vagina. The specimens collected from the victim were placed in sealed bags, transferred to a police officer, Michelle Cattuti, and delivered to the state forensic laboratory for analysis.

At the state forensic laboratory, Jane Codraro, a forensic biologist, examined the material collected from the victim's vagina and external genitalia. Codraro did not find any spermatozoa, which is the cellular component of semen, but she found evidence of p30, a seminal fluid protein. A positive result for p30 indicates, but does not conclusively establish, the presence of semen. Codraro used sophisticated DNA testing to determine that the DNA extracted from the genetic material taken from the victim's vagina came from the defendant or from the same paternal lineage.

Mother spoke to the defendant via telephone several weeks later when he called. Mother stated to the defendant that he was not to come to the apartment until he had spoken with the Danbury Police Department. The defendant voluntarily went to the Danbury Police Department on December 5, 2012, where he was interviewed by Detective Heather Burke. The defendant gave Burke an oral statement in Spanish.⁴

The defendant was arrested in January, 2013, and charged with sexual assault in the first degree in violation of § 53a–70 (a) (2), attempted sexual assault in the first degree in violation of §§ 53a–49 and 53a–70 (a) (2), risk of injury to a child in violation of § 53–21 (a) (2), risk of injury to a child in violation of § 53–21 (a) (1),⁵ and sexual assault in the fourth degree in violation of § 53a–73 (a) (1). Additional facts will be set forth as needed.

IDOUBLE JEOPARDY CLAIMS

The defendant has raised two double jeopardy claims on appeal: (1) his convictions for sexual assault in the first degree in violation of § 53a–70 (a) (2) and attempted sexual assault in the first degree in violation of §§ 53a–49 and 53a–70 (a) (2) violated the constitutional prohibition against double jeopardy, and (2) his convictions of sexual assault in the first degree in violation of § 53a–70 (a) (2) and sexual assault in the fourth degree in violation of § 53a–73a (a) (1) (A) also violated the constitutional prohibition against double jeopardy. We agree with the defendant's first but not his second double jeopardy claim.

The defendant failed to preserve his double jeopardy claims at trial and seeks to prevail on appeal pursuant to State v. Golding , 213 Conn. 233, 239–40, 567 A.2d 823 (1989). "Under [Golding ] 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 ... exists and ... 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." (Emphasis added; internal quotation marks omitted.) State v. Fabricatore , 281 Conn. 469, 476–77, 915 A.2d 872 (2007) ; see In re Yasiel , 317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying third prong of Golding ). The defendant's claims are reviewable because the record is adequate for review, and the claims are of constitutional magnitude.

Double jeopardy claims present a question of law over which our review is plenary. See State v. Burnell , 290 Conn. 634, 642, 966 A.2d 168 (2009). "The fifth amendment to the United States constitution provides in relevant part: No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb .... The double jeopardy clause of the fifth amendment is made applicable to the states through the due process clause of the fourteenth amendment." (Internal quotation marks omitted.) State v. Brown , 299 Conn. 640, 650–51, 11 A.3d 663 (2011).

"Double jeopardy prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense.... The double jeopardy analysis in the context of a single trial is a two part process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.... The defendant on appeal bears the burden of proving that the prosecutions are for the same offense in law and fact." (Internal quotation marks omitted.) State v. Felder , 146 Conn.App. 621, 625, 78 A.3d 224 (2013), cert. denied, 311 Conn. 909, 83 A.3d 1164 (2014). The double jeopardy prohibition also is violated if one crime is a lesser included offense of the other. See State v. Morin , 180 Conn. 599, 601–605, 430 A.2d 1297 (1980) ; State v. Haywood , 109 Conn.App. 460, 465–66, 952 A.2d 84, cert. denied, 289 Conn. 928, 958 A.2d 161 (2008).

"The traditional approach to analyzing whether two offenses constitute the same offense was set forth in Blockburger v. United States , 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). [W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." (Internal quotation marks omitted.) State v. Greco , 216 Conn. 282, 291, 579 A.2d 84 (1990)....