State v. Devon D.

• Decision Date: 27 May 2014
• Docket Number: No. 35400.,35400.
• Citation: 90 A.3d 383,150 Conn.App. 514
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. DEVON D.

150 Conn.App. 514

90 A.3d 383

STATE of Connecticut

v.DEVON D.^*

No. 35400.

Appellate Court of Connecticut.

Argued Feb. 20, 2014.

Decided May 27, 2014.

James B. Streeto, assistant public defender, with whom, on the brief, was Heather M. Wood, assistant public defender, for the appellant (defendant).

Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Anne Mahoney, senior assistant state's attorney, for the appellee (state).

BEAR, KELLER and PELLEGRINO, Js.^**

BEAR, J.

The defendant, Devon D., appeals from the judgments of conviction, rendered after a jury trial, of eleven offenses, in three separate files with three different docket numbers, pursuant to three separate informations, involving three different victims. Specifically, the defendant appeals from the following judgments of conviction: In docket number CR–10–642409, one count of sexual assault in the first degree in violation of General Statutes § 53a–70 (a)(2), one count of risk of injury to a child in violation of General Statutes § 53–21(a)(1), and one count of risk of injury to a child in violation of § 53–21(a)(2); in docket number CR–10–642410, two counts of sexual assault in the first degree in violation of § 53a–70 (a)(2), one count of risk of injury to a child in violation of § 53–21(a)(1), and two counts of risk of injury to a child in violation of § 53–21(a)(2); and, in docket number CR–10–643139, one count of sexual assault in the first degree in violation of § 53a–70 (a)(2), one count of risk of injury to a child in violation of § 53–21(a)(1), and one count of risk of injury to a child in violation of § 53–21(a)(2). On appeal, the defendant claims: (1) his rights to a fair trial and an impartial jury were violated by the court's denial of his motion to sever the three separate informations, which had been joined for a single trial, and (2) the court improperly permitted the state to use a dog to comfort one of the victims while she testified. We reverse the judgments of conviction and remand the cases for new trials.

The following facts, which reasonably could have been found by the jury, and procedural history inform our review. The defendant and his former girlfriend (GF) have several children together, including C1, C2 and C3. After the defendant and GF ended their relationship and separated in 2005, the children visited him at his residence, which they called the “white house,” or at the home of the defendant's mother, where he was a frequent visitor. The defendant then moved to an apartment, where he resided with a male roommate for approximately one and one-half to two years. The children also visited with the defendant at that apartment. The defendant and GF did not have a good relationship with each other, and they fought frequently. GF complained that the defendant was violent toward her, that he failed to support the children, and that he frequently violated the terms of a restraining order that she had obtained against him. GF also admitted that the defendant had filed motions for contempt against her for interfering with his visitation rights.

While trick-or-treating in October, 2009, six year old C1, who was the daughter of GF and the defendant, told GF that the defendant had sexually abused her by putting his “wee-wee” on her stomach and by touching her “private” part with his fingers. They talked about these allegations again the next morning. Several days later, GF told Frieda Griffin, a social worker with the Department of Children and Families (department), about C1's allegations. Griffin had been working with the family and had been going to GF's home on a regular basis. GF then contacted the police, and she brought C1 to Saint Francis Hospital and Medical Center, where C1 participated in two videotaped interviews conducted, on different days, by Erin Byrne, a clinical child interview specialist for the Children's Advocacy Center at Saint Francis Hospital and Medical Center. C1 told Byrne that the defendant had penetrated her “private” with his fingers and with his penis, which hurt and caused her to bleed, that he attempted to penetrate her “butt” with his penis, that he ejaculated on her several times, and that he forced her and her siblings to watch a pornographic movie. She also told Byrne that the defendant forced her to perform fellatio on him, but she vomited when he ejaculated in her mouth. Additionally, C1 told Byrne that the defendant was upset because she had eaten meat, so he put vinegar in her “privates” and in her ears; he also tried to insert his penis into her ear to clean her flesh and get the “meat” she had eaten out of her body, thus causing her ear to bleed. C1 also told Byrne that the defendant had his clothes off or his pants pulled down during these instances and that many of them occurred in the bedroom.¹

In November, 2009, eight year old C2, who was the son of the defendant and GF, revealed that the defendant had sexually abused him by inserting a rag covered finger into his “butt hole” while he was bathing. C2 then was interviewed at school by Yolanda Napper, an investigative social worker with the department. C2 also participated in a videotaped interview with Stacy Karpowitz, who then was a child forensic interview specialist with the Children's Advocacy Center. C2 reiterated his allegations to Karpowitz and also told her that the defendant had scrubbed his penis on several occasions when he bathed C2, but that the defendant always had on his clothes and had never asked C2 to touch him inappropriately. C2 also stated that the defendant made him and some of his siblings watch a pornographic movie, and had warned him not to say anything.²

Also in November, 2009, after learning that his sister had disclosed the sexual abuse committed by the defendant, ten year old C3, another son of GF and the defendant, disclosed to GF that the defendant also had abused him. C3 was interviewed at school by Napper, and he then was taken to Saint Francis Hospital and Medical Center, where he participated in a videotaped interview with Lisa Murphy–Cipolla, a clinical child interview supervisor with the Children's Advocacy Center. C3 told Murphy–Cipolla that the defendant had inserted a rag covered finger into his “butt” and scrubbed his penis, attempting to pull back his foreskin, on several occasions while C3 bathed, and that it was painful and the soap burned. He also stated that, although the defendant sometimes had him shower with C2, he did not see the defendant do anything to C2. Also, when Murphy–Cipolla asked C3 if the defendant had attempted to have him do anything to the defendant, C3 said no. C3 also told Murphy–Cipolla that he had witnessed the defendant insert his finger into the “butt” of C1 while she showered, and had made him and his siblings watch a pornographic movie in his bedroom while he was in the kitchen. During his testimony before the jury, C3 stated that what the defendant had done was “not even that serious,” but that “[it was] negative.” He explained that the defendant “washes us, like, in our privates ... [and] he stick[s] his finger in our butt....” ³

C1, C2 and C3 also underwent physical examinations for sexual abuse, but no physical evidence of abuse was found. C1 did have some redness around her urethra, but her hymen was intact, and Audrey Courtney, the nurse practitioner, who had examined her, stated that she found no evidence that C1 had been sexually abused. Courtney also found no anal abnormalities on C2, but did find that he had a condition, called phimosis, that prevented his foreskin from retracting, which was not caused by sexual abuse. Courtney also testified that the lack of physical evidence was not uncommon even when a child had been the victim of sexual abuse.

The defendant, although opting not to testify, defended the cases on the theory that there was no sexual abuse and that GF had contrived the abuse allegations to stop him from seeing the children. Defense counsel brought out the fact that the defendant and GF did not get along, that GF had a restraining order against the defendant, and that the defendant had filed motions for contempt against GF for interfering with his visitation rights. Additionally, during the questioning of C2, defense counsel asked him if there was a time that his mother was not bathing him enough, and he responded that he did not remember. During the questioning of C3, defense counsel asked C3 whether he had poor hygiene and asked him whether Griffin was assisting the family, in part, because of the children's hygiene. C3 stated that he did not know. Additionally, the children had alleged that some of the abuse occurred when the defendant took them to the home of his mother, and that she frequently was in the home when this occurred. The defendant's mother testified that, because of her places of employment, she is a mandatory reporter. She stated that the children's home was not clean and the children were not clean. She testified that they sometimes were “[d]irty, smelly, their hair is not clean.” She also stated that the defendant would take the children to her home only when she was there and that he did bathe the children there, but that she never saw any type of abuse and that she “would never put up with that.”

Following a trial by jury, the defendant, on July 19, 2011, was found guilty of all charges in all three informations. The defendant filed motions for acquittal in each case, as well as motions for a new trial. The court denied the defendant's motions and sentenced him to a total effective term of forty years imprisonment, execution suspended after eighteen years, with thirty-five years of probation thereafter. This appeal followed. Additional facts will be set forth as necessary.

I

On appeal, the defendant claims that his rights to a fair trial and an impartial jury were violated by the denial of his motion to sever the three separate...