State v. Coleman

• Decision Date: 01 July 1996
• Docket Number: No. 12812,12812
• Citation: 675 A.2d 887,41 Conn.App. 255
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Charles COLEMAN.

Page 887

675 A.2d 887

41 Conn.App. 255

STATE of Connecticut v. Charles COLEMAN.

No. 12812.

Appellate Court of Connecticut.

Submitted on Briefs Feb. 13 ¹, 1996.

Decided May 7, 1996.

Certification Granted Limited to the Following Issues July 1, 1996.

Temmy Ann Pieszak, Assistant Public Defender, filed a brief for appellant (defendant).

Michael Dearington, State's Attorney, Harry Weller, Assistant State's Attorney, and John Waddock, Assistant State's Attorney, filed a brief for appellee (state).

Before SCHALLER, SPEAR and HENNESSY, JJ.

SCHALLER, Judge.

This case is before us following proceedings in the trial court pursuant to our earlier remand of the case. State v. Coleman, 38 Conn.App. 531, 662 A.2d 150, cert. denied, 235 Conn. 906, 665 A.2d 903 (1995). The defendant appeals from the judgment of conviction, rendered after a trial by the court, of burglary in the first degree in violation of General Statutes § 53a-101(a)(2), ² burglary in the second degree in violation of General Statutes § 53a-102(a), ³ unlawful restraint in the first degree in violation of General Statutes § 53a-95(a), ⁴ four counts of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1), ⁵ and robbery in the third degree in violation of General Statutes §§ 53a-136(a) ⁶ and 53a-133. ⁷

In State v. Coleman, supra, 38 Conn.App. 531, 662 A.2d 150, we addressed the defendant's claim that the destruction of a sex crime kit had deprived the defendant of his right to due process of law under article first, § 8, of the Connecticut constitution. In deciding the defendant's motion to dismiss following discovery of the destruction of the evidence, the trial court had applied the bad faith test. ⁸ After the trial court's decision to deny the motion to dismiss, however, our Supreme Court decided that the Asherman ⁹ balancing test must be used in cases involving a claim of violation of due process because of the loss or destruction of physical evidence. State v. Morales, 232 Conn. 707, 657 A.2d 585 (1995). We remanded the case to the trial court to reconsider the defendant's motion to dismiss. State v. Coleman, supra, at 536, 662 A.2d 150. On remand, the trial court determined that the defendant's due process rights had not been violated.

On the basis of the proceedings on remand, the defendant now claims that the trial court (1) improperly violated his right to due process of law by refusing to permit him to introduce evidence in an evidentiary hearing and improperly applied the Asherman balancing test. ¹⁰ We disagree. Because we disagree, we also address the defendant's remaining claims on appeal. The defendant claims that the trial court improperly 2) denied him a one day continuance, (3) refused to remove the shackles and to state any reason for the use of the shackles, (4) deprived him of due process by convicting him of burglary in the second degree, (5) concluded that the evidence was sufficient to support his conviction of burglary in the first degree, (6) violated his right not to be placed in double jeopardy, (7) concluded that the evidence was sufficient to support his conviction of unlawful restraint in the first degree, (8) deprived him of due process when it vindictively sentenced him to 110 years in prison, and (9) violated his right not to be subject to cruel and unusual punishment. We affirm the judgment of the trial court.

In State v. Coleman, supra, 38 Conn.App. at 533-34, 662 A.2d 150, we set forth the following facts. "On August 12, 1986, the defendant was arraigned on seven charges stemming from a burglary, robbery and repeated sexual assaults that occurred in the early morning of March 4, 1986. An agreement was reached in which the defendant pleaded guilty under the Alford doctrine ¹¹ to the charges, as well as to charges from eight other files. Prior to sentencing, the defendant sought to withdraw all of his pleas. The trial court allowed the defendant to withdraw his plea on one count from another file, but denied his motion to withdraw his pleas in this case. The defendant was sentenced to thirty-five years in prison on all charges from all nine files.

"On appeal, we affirmed the trial court's refusal to allow the defendant to withdraw his plea. State v. Coleman, 17 Conn.App. 307, 552 A.2d 442 (1989). Subsequently, the defendant filed a petition for habeas corpus relief in federal court claiming that his plea canvass was defective. The United States District Court for the District of Connecticut vacated the defendant's pleas and remanded the matter for trial. After that decision, on February 19, 1992, the New Haven police department destroyed several pieces of evidence from the case. The destruction of that evidence was carried out pursuant to a court order dated June 6, 1990. A sex crime kit, which was not included on the list, was erroneously destroyed. The kit contained physical evidence pertinent to the sexual assault. The United States Court of Appeals for the Second Circuit subsequently affirmed the decision of the District Court.

"After pleading not guilty to all counts, the defendant elected to be tried by the court. The defendant requested that the sex crime kit be made available for DNA testing. When the state revealed that the kit had been erroneously destroyed, the defendant moved to suppress any test results and information regarding the testing of items in the kit, and to dismiss the charges on the basis of the state's destruction of potentially exculpatory physical evidence. The motions were denied. The trial court found the defendant guilty on seven of the eight counts as charged. On the other count, the court found the defendant guilty of the lesser included offense of burglary in the second degree. The defendant received an effective sentence of 110 years in prison." State v. Coleman, supra, 38 Conn.App. at 533-34, 662 A.2d 150.

The trial court found the following additional facts. The victim resided alone in a New Haven apartment. During the early morning of March 4, 1986, she was asleep with her glasses on and wearing a nightgown. Between 3:30 and 4 a.m., the defendant used a sharp cutting tool to remove a pane of glass from one of the victim's bedroom windows and entered her apartment. The victim awoke with the defendant straddling her. The defendant held his hand over the victim's mouth and told her not to move if she did not want to get hurt. The defendant told her to take off her glasses and she did so. The defendant forced her to commit fellatio as he stood next to her bed and also forced her to engage in vaginal intercourse.

The defendant then demanded the victim's money. She had cashed her paycheck the previous day and had separated the money into envelopes, each marked for the purpose of paying various bills. The defendant ordered the victim to take the money from the envelopes and she did so. The victim estimated that she had between $500 and $600. The defendant went through the envelopes and moved them about on the bed. The defendant asked the victim if she had any jewels or furs, and she replied in the negative. The defendant also asked her if she had a car, and she replied that she had a Datsun; he said he did not want the car.

The defendant then ordered the victim to get on her hands and knees on the bed, and he engaged in anal intercourse. He also forced her to engage again in fellatio. Before leaving, the defendant forced the victim onto her stomach and tied her up with shoelaces that he had brought with him. The defendant cut the victim's telephone wires inside the apartment and left through a window and down a fire escape.

After waiting a short time to be certain that the defendant was gone, the victim freed herself. After discovering that her telephone wires had been cut, she called the police from a neighbor's telephone. When the police arrived they took the victim to the police station where she gave a statement. The police then took the victim to a hospital for a physical examination. The police later identified the defendant through a partial palm print that he had left on one of the envelopes in the apartment that had contained the victim's money.

I

The defendant claims that the trial court violated his right to due process by refusing to hold an evidentiary hearing with respect to the balancing test adopted in State v. Morales, supra, 232 Conn. 707, 657 A.2d 585. In our earlier decision in this case, we "remanded for further proceedings to reconsider the defendant's motion to dismiss by applying the appropriate balancing test in light of State v. Morales, supra [at 707, 657 A.2d 585]." State v. Coleman, supra, 38 Conn.App. at 536, 662 A.2d 150. The defendant argues that by refusing to consider his proffered evidence the trial court did not afford him an opportunity to address adequately the factors of the Asherman balancing test. The defendant also argues that the trial court improperly applied the Asherman balancing test. We find no merit in the defendant's claims.

"Inquiry into whether particular procedures are constitutionally mandated in a given instance requires adherence to the principle that due process is flexible and calls for such procedural protections as the particular situation demands. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). There is no per se rule that an evidentiary hearing is required whenever a liberty interest may be affected. Due process ... is not a technical conception with a fixed content unrelated to time, place and circumstances.... Ingraham v. Wright, 430 U.S. 651, 675, 97 S.Ct. 1401, 1414-15, 51 L.Ed.2d 711 (1977). Rather, the [s]pecific dictates of due process generally require consideration of three distinct factors: [f]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural...