State v. Edward M.

• Decision Date: 15 May 2012
• Docket Number: No. 31196.,31196.
• Citation: 135 Conn.App. 402,41 A.3d 1165
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. EDWARD M.*

135 Conn.App. 402

41 A.3d 1165

STATE of Connecticut

v.EDWARD M.*

No. 31196.

Appellate Court of Connecticut.

Argued Jan. 19, 2012.Decided May 15, 2012.

Carlos E. Candal, special public defender, for the appellant (defendant).

Lisa A. Riggione, 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).

DiPENTIMA, C.J., and ALVORD and BEAR, Js.

BEAR, J.

The defendant, Edward M., appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a–70 (a)(2), three additional counts of sexual assault in the first degree in violation of § 53a–70 (a)(2) and two counts of risk of injury to a child in violation of General Statutes § 53–21(a)(2). The defendant claims that (1) the trial court erred by failing to permit him to cross-examine a key state's witness as to her motive and/or bias and by restricting him from presenting evidence, resulting in an infringement of his constitutional rights, (2) the prosecutor engaged in several instances of impropriety, denying him his constitutional right to a fair trial and (3) alternatively, should this court fail to find a constitutional violation, it should exercise its supervisory authority and reverse the judgment of conviction and remand the case for a new trial. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant to our resolution of the defendant's claims. The defendant is the victim's biological father. The defendant resided with the victim and the victim's mother during a period of time beginning shortly after the victim's birth in 1995 until she became two years old. The defendant's relationship with the victim's mother ended at that time. After their separation, the defendant's relationship with the victim was confined to sporadic visits. Beginning in 2003, however, when the victim was eight years old, she began overnight visitation with the defendant and his girlfriend, AB. Such visitation generally occurred on a biweekly basis.

During this period, the defendant began sexually abusing the victim. Specifically, the defendant engaged in forced oral, vaginal and anal intercourse with the victim on multiple occasions over an eighteen month period. In early 2007, the victim confided in her cousin, AT, that she had been sexually assaulted by the defendant. AT told her mother what the victim had told her, and AT's mother told the defendant's brother. AT's mother and the defendant's brother urged the victim to tell her mother about the assaults, and the victim then revealed the defendant's conduct to her mother.

Shortly after the victim divulged to her mother the defendant's multiple instances of sexual abuse, the victim's mother brought her to the University of Connecticut Health Center, where she was examined by an emergency room physician. The victim told the physician that she had been sexually abused by the defendant over a period of approximately eighteen months. Neither a pelvic examination nor a “rape kit” examination was performed at that time.

The victim also was referred to the department of children and families and scheduled for an interview with a clinical child interview specialist at the Children's Advocacy Center (center) at Saint Francis Hospital and Medical Center. The victim told her interviewer, Jessica Alejandro, that the instances of sexual abuse began when she was nine or ten years old and ended in 2006. The victim provided a detailed narrative of the abuse to Alejandro. The victim then was referred to a pediatric physician at the center, Nina Livingston, for further examination. Livingston's examination uncovered no physical abnormalities consistent with sexual assault.

The defendant subsequently was arrested and charged in a seven count substitute information with two counts of sexual assault in the first degree in violation of § 53a–70 (a)(2), alleging sexual intercourse with a child under the age of ten, three counts of sexual assault in the first degree, alleging sexual intercourse with a child under the age of thirteen, and two counts of risk of injury to a child in violation of § 53–21(a)(2). A jury found the defendant guilty on all counts, and a judgment of conviction was rendered in accordance with the jury's verdict. The court sentenced the defendant to a total effective term of fifty years incarceration, thirty-five years of which is mandatory, and fifteen years of special parole. This appeal followed. Additional facts will be set forth as necessary.

On appeal, the defendant claims that (1) the trial court improperly restricted his cross-examination of the victim's mother and his presentation of evidence from AB, the defendant's girlfriend, related to the potential motives and biases of the victim's mother, (2) the prosecutor engaged in multiple improprieties, denying him a fair trial and (3) should this court fail to find a constitutional violation, that the court should exercise its supervisory authority and reverse the conviction and remand the case for a new trial. We address the defendant's claims in turn.

I

The defendant first claims that the court improperly restricted his cross-examination of the victim's mother regarding her potential motives or biases. In addition, the defendant claims that the court improperly restricted his presentation of evidence from AB, thereby infringing on his right to present a defense under the state and federal constitutions. We disagree.

The following additional facts are relevant to the defendant's claims. During cross-examination of the victim's mother, defense counsel questioned her regarding her relationship and breakup with the defendant. The victim's mother responded that she did not recall why her relationship with the defendant had ended and that she did not have any problems or disagreements with the defendant. She further testified that she had not been subjected to any domestic violence by the defendant. Defense counsel then sought to question the victim's mother regarding an incident that had occurred on December 25, 2003. The state objected and the jury was excused.

Outside the presence of the jury, defense counsel stated that he sought to introduce evidence of a specific incident in which “[AB] and the defendant had to call the ... police department on [the victim's mother] to call her—the police to call her and tell her to stop harassing them on the telephone and all sorts of name-calling and threatening to come over and beat up [AB], which [AB], of course, is going to testify to. But I have a specific ... police report where this witness had to be admonished by the ... police department.” Defense counsel claimed that he was proffering the evidence to show that “[the relationship of the victim's mother with AB and the defendant] was anything but ... harmonious,” and to illustrate the “animus [of the victim's mother] against the defendant and a basis of why she would lie and why her daughter would lie....” He thus was offering the evidence for its truth. The state objected to the defendant's proffer on grounds of relevance, hearsay and improper foundation. The court asked defense counsel whether he had a copy of the police report to which he had referred or whether the police department had provided any audio recordings. When defense counsel was unable to produce a copy of the report or any independent corroboration of the police records, the court sustained the state's objection.

Later, during direct examination of AB, defense counsel asked AB about her relationship with the victim's mother. The state objected on relevance grounds. Outside the presence of the jury, the court stated, “I thought we covered this before,” and asked counsel how “the relationship between these two adult women [is] relevant in this case other than by some kind of backdoor psychology that the [victim's mother] put the [victim] up to it?” In response, defense counsel indicated that he “wasn't going there.”

Subsequently, defense counsel asked AB whether “the victim continue[d] to visit you ... every other weekend?” AB responded, “Not as often. Because I had a situation with [the victim] and her mother where I had to call the cops....” The state objected to AB's answer as nonresponsive, and the court struck the portion of AB's response following the statement, “Not as often.” Immediately afterward, defense counsel asked AB: “Was there some disruption in your relationship between [the victim] and her mother after 2004?” AB responded: “Yes, there was. I had to call the police on....” The state again objected, and the court struck the portion of AB's response following the statement, “Yes, there was.” ¹

As a preliminary matter, we agree with the state that the defendant's conduct before the trial court effectively waived his claim regarding AB's testimony. “A defendant in a criminal prosecution may waive one or more of his or her fundamental rights.... [A]lthough there are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client, the lawyer has—and must have—full authority to manage the conduct of the trial.... As to many decisions pertaining to the conduct of the trial, the defendant is deemed bound by the acts of his lawyer-agent....” (Citations omitted; internal quotation marks omitted.) State v. Kitchens, 299 Conn. 447, 467–68, 10 A.3d 942 (2011). By explicitly stating that he was not proffering any testimony from AB regarding her relationship with the victim's mother, and by failing to challenge any of the court's subsequent rulings related to that issue, the defendant has abandoned his claim on appeal that AB's testimony was improperly restricted on that basis. Moreover, we note that, even in light of the defendant's waiver, ...