State v. Christopher R.

• Docket Number: AC 45869
• Decision Date: 12 December 2023
• Citation: 306 A.3d 1117,222 Conn.App. 763
• Parties: STATE of Connecticut v. CHRISTOPHER R.
• Court: Connecticut Court of Appeals

306 A.3d 1117

222 Conn.App. 763

222 Conn.App. 763

STATE of Connecticut

v.CHRISTOPHER R.^*

(AC 45869)

Appellate Court of Connecticut.

Argued September 14, 2023

Officially Released December 12, 2023

Dina S. Fisher, assigned counsel, for the appellant(defendant).

Kathryn W. Bare, executive assistant state’s attorney, with whom, on the brief, were Christian M. Watson, state’s attorney, and David N. Clifton, senior assistant state’s attorney, for the appellee(state).

Moll, Suarez and Seeley, Js.

SEELEY, J.

₇₆₅The defendant, Christopher R., appeals from the judgment of conviction, ren- dered following a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a)(1), two counts of risk of injury to a child in violation of General Statutes § 53-21 (a)(2), and one count of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a)(2)and53a-70 (a)(1).On appeal, he claims that the trial court violated his constitutional rights by finding that his waiver of his right to testify was voluntary and denying his request to open the evidence to allow him to testify following his assertion that the waiver of his right to testify was involuntary.We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts.In October, 2018, the victim, N, was fifteen years old and lived with her mother and her two younger sisters.At that time, N’s grandmother and the defendant, her grandmother’s husband, were also residing in the apartment where N lived.On October 3, 2018, N was in the apartment with her two sisters, discussing a concert that she wanted to attend, when the defendant asked ₇₆₆her what she would be willing to do for the concert tickets.The defendant proceeded to grab her and kiss her.He then asked her to come talk with him in her mother’s bedroom.When her sisters became scared and began to cry, N went into the bedroom with the defendant.Once N was in the bedroom with the defendant, he restrained her by grabbing her arm and locking the door.He proceeded to pin her to the bed and sexually assault her.When she cried, he hit her on the mouth.During the assault, he rubbed his genitals against her, penetrated her digitally, and attempted to penetrate her with his penis.The defendant also told N that if she did not stop screaming, he would "get one of’ her sisters.Thereafter, the defendant suddenly stopped the assault, sat on the bed, and, while punching himself in the head, said that the "demons" in him had made him assault N.

After N’s grandmother returned to the apartment, N communicated to her, using an application on her phone, that she had been assaulted.N’s grandmother called N’s mother, K, who returned to the apartment.N disclosed the assault to K, who. called the police.N subsequently was taken to a hospital, where a sexual assault kit was administered.The defendant was subsequently arrested and taken into custody.

A trial commenced on May 2, 2022.The state presented evidence from multiple witnesses, including N, K, N’s grandmother, multiple police officers, the nurse who performed N’s sexual assault kit, and two forensic experts.Defense counsel cross-examined each of the state’s witnesses.On May 3, 2022, after the state rested, defense counsel informed the court that he did not plan to call any witnesses.The court asked defense counsel if that meant that the defendant had elected not to testify.Defense counsel confirmed that that was his understanding.The court then canvassed the defendant to confirm that he was waiving his right to testify.The court first elicited certain information, including that ₇₆₇the defendant was fifty-seven years old, that he was not under the influence of any alcohol, drugs, or medication, and that he had completed the eleventh grade.The court then asked the defendant whether he had discussed the matter with his attorney, whether he had had enough time to discuss the matter with his attorney, whether his attorney had properly explained the risks and benefits of not testifying with him, whether he understood those risks and benefits, and whether he understood that the decision not to testify was his and only his to make.The defen- dant answered in the affirmative to each of the court’s questions.The following exchange then took place:

"The Court: And is it your personal decision not to testify on your own behalf?

"The Defendant: Yes.

"The Court: Are you waiving your right to testify?

"The Defendant: Yes.

"The Court: Are you waiving your right to testify knowingly and voluntarily?

"The Defendant: Yes.

"The Court: Has anyone forced or threatened you to waive your right to testify?

"The Defendant: Sorry?

"The Court: Has anyone forced or threatened you to waive your right to testify?

"The Defendant: Do I have to answer that?

"The Court: Yes.Has anyone forced or threatened you to give up your right to testify?

"The Defendant: No.

₇₆₈"The Court: All right.So let me ask you the question again.Has anyone forced or threatened you to waive your right to testify?

"The Defendant: No.

"The Court: And is your response to that question a voluntary one?Have any promises been made to you to waive your right to testify?Have you understood all of my questions … ?

"The Defendant: Yes.

"The Court: Do you have any questions of the court?

"The Defendant: No."

After the canvass was complete, the court then stated that it had "evaluated and asked this defendant whether or not there [were] any impediments to his judgment or thought process that would affect this ability to make the decision that he just made to not testify in this case.This court has also asked questions to determine this defendant’s age, his level of schooling.This court has advised the defendant that he does have a constitutional right to testify … which is his choice alone of whether or not he wishes to testify or not.I have canvassed this defendant and I find that the defendant has knowingly and voluntarily waived his right to testify in this case."

The following day, the defendant addressed the court and stated that he now wanted to testify in his defense, claiming that he had been forced not to testify by his attorney.¹The defendant, stated that, "when you asked ₇₆₉me, [were] you forced or threatened, I said I don’t want to answer that question because I was … it was not voluntary … [i]t was forced.I was forced to say yes.I was forced to do this.… I think the jury needs to know the truth.They need to know the truth.Okay.If we[are] going to do justice, let’s do justice with the truth, not dishonesty, Your Honor."²

The court found that the defendant had knowingly and voluntarily waived his right to testify.The court addressed the defendant directly, stating that "you were aware that you had this choice.I canvassed you on it, I asked you specific questions, and then I asked you whether or not anybody threatened or forced you not to testify; you asked, do I have to answer that question and I said yes, and you paused and then you eventually answered no.The follow up question that the court asked after you responded to that was, is your response to that question truthful, and your response was yes.So, in looking at this situation, the court completed a full canvass because I wanted to make sure that I knew that your [waiver of the] constitutional right on whether you wanted to testify or not was knowing and voluntary, and I made findings that it was."

Defense counsel informed the court that he would not be filing a motion to open the evidence.The court acknowledged this, stating that "[t]he defense … is not making a motion to open the evidence.So, technically speaking, there is no motion before the court.I will indicate, however, if there was a motion before the court, [your] request would be denied.I believe that it ₇₇₀is an obstruction of the proceedings, and it is only intended to effect a delay.I also note that there was a full canvass done of [the defendant] relative to the issue of his decision to testify or not.This issue was raised multiple times.The defendant was advised of his choice early on in this case and during the trial."³The court then had counsel for both parties deliver their closing arguments as scheduled.The defendant was found guilty of all charges and sentenced to a term of incarceration of seventeen years, with ten years being mandatory, and twelve years of special parole.

[1]On appeal, the defendant claims, for the first time, that his "constitutional rights were violated by the trial court’s refusing his request to [open][the] evidence to allow him to testify when he asserted that his prior waiver was involuntary."Specifically, he premises his claim of a constitutional violation on his assertions that (1)the court erroneously concluded that his waiver of his right to testify on May 3, 2022, was voluntary and (2) its decision denying his request to open the evidence on May 4, 2022, to allow him to testify was based on flawed reasoning.The defendant further argues that his unpreserved constitutional claim is reviewable pursuant to Statev. Golding, 213 Conn. 233, 239-40, 567 A.2d 823(1989), as modified byIn re Yasiel R.,317 Conn. 773, 781, 120 A.3d 1188(2015), and that the deprivation of his right to testify "constitutes structural error, requiring automatic reversal of [his] conviction and a new trial."We do not agree.

[2]₇₇₁Under Golding,a defendant can prevail on an unpreserved claim "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...