State v. Delgado

• Decision Date: 18 September 1996
• Docket Number: No. 14296,14296
• Citation: 681 A.2d 327,42 Conn.App. 382
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Rafael DELGADO.

Page 327

681 A.2d 327

42 Conn.App. 382

STATE of Connecticut v. Rafael DELGADO.

No. 14296.

Appellate Court of Connecticut.

Argued January 11, 1996.

Decided July 30, 1996.

Certification Granted Limited to the following issue Sept. 18, 1996.

Francis J. DiScala, Norwalk, with whom, on the brief, was John Thygerson, Law Student Intern, for appellant (defendant).

Richard F. Jacobson, Assistant State's Attorney, with whom, on the brief, were Donald A. Browne, State's Attorney, and Stephen J. Sedensky III, Assistant State's Attorney, for appellee (State).

Before DUPONT, C.J., and LAVERY and FREEDMAN, JJ.

FREDERICK A. FREEDMAN, Judge.

The defendant appeals from the judgment of conviction, following a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55(a)(1) ¹ and risk of injury to a child in violation of General Statutes § 53-21. ² On appeal, the defendant claims that the trial court improperly (1) allowed joinder of the manslaughter and risk of injury counts, (2) excluded the testimony of a defense expert witness due to an alleged violation of a sequestration order, (3) admitted evidence of prior injuries to the victim, and (4) allowed into evidence a videotape of the victim and her mother, a codefendant. The defendant also argues that the verdict was against the weight of the evidence and that the court's charge to the jury was misleading and confusing, resulting in the dilution of the state's burden of proof. We conclude that the evidence was sufficient to establish the defendant's guilt of the crimes charged. We agree, however, with the defendant with regard to the joinder of the manslaughter and risk of injury counts. Accordingly, we reverse the judgment and remand the case for a new trial. ³

The jury reasonably could have found the following facts. The victim was a sixteen month old baby with Down's Syndrome who, at the time of her death on December 14, 1992, resided with her mother, Devilyn Bruno, and her mother's boyfriend, the defendant Rafael Delgado, in an apartment in Bridgeport. Prior to her death in the spring of 1992, the victim was taken by her aunt to live with her grandmother in Florida. The victim was returned to Connecticut in September or October of 1992. After the victim's return to Connecticut, the defendant inquired of the aunt when she was taking the victim back to Florida.

On November 16, 1992, the victim was seen at the St. Joseph's Family Medical Center in Stamford for her fifteen month checkup. The nurse on duty noticed that the victim had three bruises on her face, one on each temple area and one on the right cheek. When the nurse questioned Bruno about the bruises, Bruno responded that the victim had sustained the bruises when she fell out of a bouncing chair approximately three or four days earlier.

On the same day, Tammy Vargas, a family practice physician at St. Joseph Family Medical Center, examined the victim. Vargas had previously examined the victim in April, 1992, at which time she did not notice any bruises on the victim or problems with the victim's arms or legs. During the examination on November 16, 1992, which was videotaped, ⁴ Vargas noticed some bruises on the victim's forehead and ordered blood work to rule out any bleeding abnormality. Bruno told Vargas that all of the victim's bruises were caused when the victim fell off of a bouncing chair. Bruno also told Vargas that the victim sometimes put her fingers in her nose causing nosebleeds. Vargas found no indication that the victim tended to bang her head or had a sleep disorder, and no indication that the victim had a broken right leg. Vargas had a "slight suspicion" of child abuse.

On December 8, 1992, Bruno had a conversation with Vargas in which she indicated that the victim had a swelling in her thigh. Bruno told Vargas that she thought the swelling was on the same side where the victim had received a shot. Vargas could not recall on what part of the body the shots were given, but according to the medical records, the victim did receive shots on November 16, 1992. Since Vargas did not see the victim after November 16, 1992, she did not know the cause of the swelling.

Regina Featherston, a nutritionist for Women, Infants and Children (WIC), a federally funded nutrition program for children and pregnant women, first saw the victim on February 26, 1992. On that date, Featherston did not notice any bruises on the victim and the victim allowed Featherston to pick her up and to hold her. Featherston next saw the victim on November 17, 1992. At that time, Featherston noticed bruises around the victim's forehead and on her cheeks. She also noticed a pattern of tiny cuts around the victim's eyes and black and blue marks on both sides of the victim's chin. Featherston asked Bruno about the victim's injuries and Bruno told her that the victim had fallen out of a rocking chair. When Featherston attempted to pick the victim up, the victim screamed and tried to get away from her. The victim had the same reaction when Bruno went to pick her up. Bruno explained to Featherston that the victim had behaved like that since she received shots at the hospital the day before.

Because Featherston suspected that something was wrong, she asked Bruno when the victim had last seen a physician. Bruno told Featherston that the victim had seen Vargas the day before, November 16, 1992. After Bruno and the victim left her office, Featherston called Vargas and made notes to herself of the visit with the victim because she was "very suspicious of what happened to her."

Pauline Barnes and her husband Benjamin Barnes lived in an apartment in Bridgeport below an apartment occupied by a Spanish man, a caucasian woman and a baby. In the early morning hours of December 14, 1992, they were asleep in their apartment when they were awakened by heavy footsteps in the apartment upstairs. Pauline Barnes recognized the footsteps as belonging to the man upstairs and remembered hearing a loud noise that "sounded like someone fell on the floor hard" or like "someone was being thrown to the floor." After approximately ten minutes, she saw the defendant and the woman leave.

At approximately 4 a.m. on December 14, 1992, Benjamin Barnes was awakened by "real heavy walking" followed by a loud noise that shook the whole house. He then heard footsteps going downstairs and out the front door. Ten minutes later, Benjamin Barnes heard the front door open and footsteps going upstairs. Shortly thereafter, he heard "the[m] come right back to the same spot that [he] hear[d] the noise before and ... then they turn[ed] around and [went] back outside."

At approximately 4 a.m. on December 14, 1992, Michael Fusaro, an emergency medical technician for the Bridgeport Ambulance Service, was driving an ambulance in Bridgeport with his partner, John Corris, when they were stopped by a man and a woman holding a baby, the victim. Fusaro called the dispatcher to let them know what was going on and then proceeded to assist Corris, who had initiated care to the victim. They then transported the victim to the hospital. The woman sat in the front seat of the ambulance and explained that they had decided to run to the hospital, which was only two or three blocks away, because the victim was crying and having trouble breathing.

Corris knew the condition of the victim was poor because of her limp state and because her face was blue, indicating that the victim was not breathing. After removing the victim's snowsuit, Corris noticed that the victim had no pulse. Corris also noticed that "the eyes were ... discolored like bruises around the orbits of the eyes," which he called a "clinical sign of injury," usually indicative of head trauma. Corris put a tube into the victim's lungs, put her on a heart monitor, and gave her some medication. They also performed CPR on the victim. The victim was placed on a board for the drive to the hospital.

The victim was treated in the emergency room of Bridgeport Hospital by Deborah Spaight, a pediatric resident. Spaight noticed that the victim was not breathing on her own and was not moving. Spaight also noticed that the victim had some bruising over both eyes, her cheek, the left side of her neck and on her chest. Spaight saw a cut that appeared to be healing on the left part of the victim's upper lip. In Spaight's opinion, the bruises were more than twelve hours old. A physical examination revealed that the victim had some bleeding behind the eyes, which is usually associated with a severe head injury. The victim had a CAT scan of her head which showed evidence of a skull fracture with associated bleeding inside her brain. The victim was removed from life support at 5 p.m. on December 14, 1992, and died shortly thereafter.

As a result of her examination of the victim, Spaight filed a report of suspected child abuse with the state department of social services. She did this on the basis of the severity of the head injury, the evidence of old bruises and the fact that the story from Bruno did not appear to be consistent with the victim's injuries. In Spaight's opinion, the defendant's statement also was inconsistent with the victim's injuries and the cause of the victim's death, which was cardiopulmonary arrest was caused by the head injury. A post mortem X ray of the victim taken by Malka Shah revealed a healing fracture of the victim's right upper leg that would have been caused by a "tremendous amount of force." In Shah's opinion, the fracture was a minimum of two weeks old, and probably occurred after the victim's videotaped examination on November 16, 1992. ⁵

The defendant testified that the victim slept on a mattress in the kitchen, that there were stuffed animals around the mattress to prevent the victim from hitting the wall, and that the victim would often roll off the mattress during the night and lie on the floor. According to the defendant, the victim had the habit of banging her head on...