State v. Dews

Citation87 Conn.App. 63,864 A.2d 59
Decision Date25 January 2005
Docket NumberNo. 24160.,24160.
CourtAppellate Court of Connecticut
PartiesSTATE of Connecticut v. Eugene DEWS.

Suzanne Zitser, assistant public defender, with whom, on the brief, was Margaret I. Castinado, assistant public defender, for the appellant (defendant).

Frederick W. Fawcett, supervisory assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Robert M. Brennan, senior assistant state's attorney, for the appellee (state).

FOTI, DRANGINIS and FLYNN, Js.

FLYNN, J.

The defendant, Eugene Dews, appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the fourth degree in violation of General Statutes § 53a-73a(a)(1)(A)1 and three counts of risk of injury to a child in violation of General Statutes § 53-21(a)(2).2 On appeal, the defendant claims (1) that the trial court violated his rights to a fair trial, notice and due process when it took a position of advocacy and characterized otherwise inadmissible evidence as uncharged misconduct and failed to conduct a balancing test, (2) the court acted improperly when it struck only a portion of a witness' uncharged misconduct testimony and then gave an inadequate limiting instruction regarding the stricken portion of the testimony, (3) his rights to due process and a fair trial were violated as a result of prosecutorial misconduct, (4) the court violated his sixth amendment right to effective assistance of counsel and (5) the court violated his sixth amendment right to present a defense. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. D, S, N, and L,3 who were all minors, would visit the defendant's house to play video games.4 D, S and N, while staying overnight at the defendant's house, would wake up to find the defendant touching their genitals. D would go to sleep at the defendant's house fully clothed and wake up naked. D and S would take showers with the defendant, and the defendant would masturbate and wipe the excretions on the legs and backs of D and S. D, S and N discussed these incidents, and in December, 2001, they told their parents and the police about them.

The defendant was convicted of sexual assault in the fourth degree as to D and S, and risk of injury to a child as to D, S, and N. The defendant's total effective sentence was twenty years incarceration, execution suspended after fifteen years with twenty years probation. Additional facts will be recited as they become relevant.

I

The defendant first claims that the court denied him his rights to a fair trial, notice and due process when it "improperly engaged in advocacy by admitting uncharged misconduct [evidence], by abdicating its role as gatekeeper for admission of this evidence and by failing to give a limiting instruction as to this evidence." The defendant seeks Golding review of his unpreserved claim. See State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The second prong of Golding requires that the unpreserved claim be of constitutional magnitude. Id., at 239, 567 A.2d 823.

The defendant claims that the admission of the evidence that the court characterized as "uncharged misconduct" deprived him of certain constitutional rights. We are not persuaded by this claim. "[T]he defendant would have us place a constitutional label on what is not an error of constitutional proportion. [I]t would trivialize the constitution to transmute a nonconstitutional claim into a constitutional claim simply because of the label placed on it by a party or because of a strained connection between it and a fundamental constitutional right." (Internal quotation marks omitted.) State v. Jenkins, 271 Conn. 165, 190, 856 A.2d 383 (2004). "[R]obing garden variety claims [of an evidentiary nature] in the majestic garb of constitutional claims does not make such claims constitutional in nature.... Putting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender." (Internal quotation marks omitted.) State v. Izzo, 82 Conn.App. 285, 291 n. 2, 843 A.2d 661, cert. denied, 270 Conn. 902, 853 A.2d 521 (2004).

We set forth the following additional facts. The state had charged the defendant with risk of injury to a child in violation of § 53-21(a)(2), which requires the defendant to have had contact with the intimate parts of a child. Despite the existence of pretrial videotaped testimony,5 S and D testified from the witness stand at trial. However, the testimony of S and D was different from what the state had expected in one important respect. At trial, they testified that during the shower incident, the defendant had touched their backs and legs, which are not defined as intimate parts under General Statutes § 53a-65(8). Their testimony at trial, unlike their pretrial taped testimony, left out references to the buttocks, which is defined as an intimate part under § 53a-65(8). On the basis of the trial testimony, the state sought to amend the two counts of risk of injury pursuant to § 53-21(a)(2) to two counts of risk of injury pursuant to § 53-21(a)(1), which proscribes conduct placing children in situations or doing any act where either the child's health is likely to be injured or the child's morals impaired.6 This amendment would have eliminated the need to prove that the defendant had contact with the intimate parts of a child. The court denied the motion to amend because it ruled that the motion was made so late in the proceedings that it would be prejudicial to the defendant. However, the court then ruled, sua sponte, that "the court would well treat this additional conduct by the defendant as some type of uncharged misconduct. Certainly, it fits into that category. So, I would just add that so you are aware of the court's ruling for those reasons."7 The defendant had not objected to the introduction of this testimony when it was offered, nor did he seek to strike the testimony or any portion thereof after the court had denied the state's motion to amend and characterized it as "uncharged misconduct." Additionally, the defendant did not request that the court give a limiting instruction as to this testimony. Nevertheless, the defendant now complains that the court improperly admitted the testimony, despite his failure to object, and that it failed to give a limiting instruction, sua sponte.

In essence, the defendant attempts "to put a constitutional tag on a nonconstitutional evidentiary ruling.... We previously have stated that the admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved." (Internal quotation marks omitted.) State v. Gentile, 75 Conn.App. 839, 847, 818 A.2d 88, cert. denied, 263 Conn. 926, 823 A.2d 1218 (2003). The error claimed by the defendant in the present case is simply evidentiary in nature. The defendant had numerous occasions on which to demonstrate that he thought that this testimony was improper, prejudicial or of limited use to the jury. The defendant never objected to the introduction of the testimony, did not make a motion to strike the testimony in whole or in part and did not request a jury charge or limiting instruction as to the use of this testimony. Furthermore, the state had notified the defendant that it was planning to present the shower-masturbation testimony of S and D at trial. The fact that the victims testified in a less damaging manner than expected does not now give the defendant a constitutional claim on appeal.

In anticipation of failing to satisfy the second prong of Golding, the defendant also seeks plain error review. See Practice Book § 60-5. "As we often have stated, [p]lain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.... Plain error is a doctrine that should be invoked sparingly.... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.... Furthermore, even if the error is so apparent and review is afforded, the defendant cannot prevail on the basis of an error that lacks constitutional dimension unless he demonstrates that it likely affected the result of the trial." (Internal quotation marks omitted.) Menon v. Dux, 81 Conn.App. 167, 172, 838 A.2d 1038, cert. denied, 269 Conn. 913, 852 A.2d 743 (2004).

The defendant claims that the court, sua sponte, should have stricken the shower testimony and offered a limiting instruction as to its use. The defendant did not object to this testimony, he failed to seek to have the testimony stricken, and he did not request a limiting instruction. Nor did he take exception to the court's failure to give a limiting instruction. "[W]hen opposing counsel does not object to evidence, it is inappropriate for the trial court to assume the role of advocate and decide that the evidence should be stricken.... The court cannot determine if counsel has elected not to object to the evidence for strategy reasons.... Experienced litigators utilize the trial technique of not objecting to inadmissible evidence to avoid highlighting it in the minds of the jury. Such court involvement might interfere with defense counsel's tactical decision to avoid highlighting the testimony. When subsequent events reveal that it was an imprudent choice, however, the defendant is not entitled to turn the clock back and have [the appellate court] reverse the judgment because the trial court did not, sua sponte, strike the testimony and give the jury a cautionary instruction." (Citations omitted; internal quotation marks omitted.) State v. Wragg, 61 Conn.App. 394, 399, 764...

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    ...symptoms of emotional disturbance day after sexual assault), cert. denied, 289 Conn. 941, 959 A.2d 1008 (2008); State v. Dews, 87 Conn.App. 63, 82, 864 A.2d 59 (describing state's case as "strong" when other victims' testimony corroborated allegations of defendant's sexual misconduct, and t......
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