State v. Elias V., AC 38487

CourtAppellate Court of Connecticut
Writing for the CourtALVORD, J.
Citation147 A.3d 1102,168 Conn.App. 321
Docket NumberAC 38487
Decision Date20 September 2016
Parties State of Connecticut v. Elias V.

168 Conn.App. 321
147 A.3d 1102

State of Connecticut
v.
Elias V.*

AC 38487

Appellate Court of Connecticut.

Argued May 11, 2016
Officially released September 20, 2016


Katherine C. Essington, assigned counsel, for the appellant (defendant).

Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were

147 A.3d 1106

Gail P. Hardy, state's attorney, and Chris A. Pelosi, senior assistant state's attorney, for the appellee (state).

Alvord, Kellerand Pellegrino, Js.

ALVORD, J.

168 Conn.App. 324

The defendant, Elias V., appeals from the judgment of conviction, rendered after a jury trial, of three counts of sexual assault in the first degree in violation of General Statutes § 53a–70 (a) (1); one count of sexual assault in the second degree in violation of General Statutes § 53a–71 (a) (1); one count of sexual assault in the fourth degree in violation of General Statutes § 53a–73a (a) (1) (A); two counts of risk of injury to a child in violation of General Statutes § 53–21 (a) (1); and three counts of risk of injury to a child in violation of General Statutes § 53–21 (a) (2). On appeal, the defendant claims that (1) the court improperly excused a juror before trial without first notifying the defendant or his counsel; (2) the court committed plain error concerning the constancy of accusation testimony at trial; and (3) the prosecutor engaged in impropriety in his cross-examination of the defendant and in closing argument. We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. In 2003, the defendant began to sexually abuse his older daughter E.V., who was nine years old at the time. Over the next eight years, the defendant frequently subjected E.V. to various forms of sexual abuse, including forced vaginal penetration, attempted anal penetration, oral

168 Conn.App. 325

sex, masturbation, and other sexual contact with her intimate parts.1

In addition to sexually abusing E.V., there was extensive testimony about the defendant regularly exposing E.V. and his younger daughter, K.V., to other forms of abuse that jeopardized their health and welfare. For example, the defendant was very possessive of E.V. and K.V., and he would inspect K.V. in the shower to ensure that she was a virgin, check E.V.'s body after school for hickeys, and dress both of the girls in boys clothing. He would also force E.V. and K.V. to consume alcohol. Finally, the defendant was prone to violent outbursts, and he would regularly physically abuse K.V. and occasionally physically abuse E.V. The defendant's violent, controlling, and, at times, paranoid behavior was often exacerbated by his use of crack cocaine.

The events that led to the defendant's arrest were set in motion by two reports, made by E.V.'s and K.V.'s schools, to the Department of Children and Families (department) in 2011. While E.V. was enrolled in high school, the defendant would frequently require E.V. to stay home under the pretense of having her take care of the house so that he could sexually abuse her. In the fall of 2010, E.V. confided in a teacher, with whom she had taken classes throughout her four years of high school, that she often missed school because her father insisted that she stay home "to take care of him, the house, and her little brother,"2 not because she was ill, as she had previously indicated. The teacher then notified the principal, school social worker and the school resource officer about the potential truancy issue. Over the next few

147 A.3d 1107

months, the school resource

168 Conn.App. 326

officer spoke to E.V.'s parents about her absenteeism in an attempt to resolve the issue. When E.V.'s absenteeism persisted, the school resource officer contacted the department on March 3, 2011.

That same day, K.V. arrived home late from school because the public bus she took home had broken down. When she arrived home, the defendant extensively beat her, leaving bruises on her faceand body, because she was late and he did not believe her excuse. On March 4, 2011, despite the visible bruising, K.V. went to school.3 At the urging of friends, K.V. went to the school counselor, who called the department. The department sent an investigator, Gloria Rodriguez, to interview K.V. about the potential physical abuse. Rodriguez was also provided with the report E.V.'s school had made about her absenteeism and potential educational neglect. After interviewing K.V. and her mother, M.V., Rodriguez suspected that E.V. was being sexually abused at home. When Rodriguez interviewed E.V., she directly asked her whether she was being sexually abused, and E.V. confirmed that she was being sexually abused by her father.

On February 3, 2014, a trial commenced on a ten count long form information, charging the defendant in eight counts for his sexual abuse of E.V. and in two counts for his sexual and nonsexual abuse of E.V. On February 10, 2014, the jury returned a guilty verdict on all counts. This appeal followed.

I

The defendant first claims on appeal that the court improperly excused a regular juror before trial without first notifying the defendant or his counsel. Because the defendant failed to preserve this claim for appeal,

168 Conn.App. 327

he seeks Golding review,4 arguing that the court violated his state and federal constitutional rights by excusing a juror without first notifying the defendant or his counsel. Alternatively, the defendant seeks reversal under the plain error doctrine, arguing that the trial court failed to "articulate sufficient facts to support the conclusion that the juror was no longer able to perform her duties due to her diagnosis," as required by General Statutes § 54–82h (c). The state responds that both claims are unreviewable under Golding and do not warrant reversal under the plain error doctrine because the substitution of a regular juror for an alternate juror does not implicate a defendant's constitutional rights and the court complied with § 54–82h (c)when it dismissed the juror for good cause. We agree with the state.

A

We first address the defendant's claim that the court violated his state and federal constitutional rights when it excused the juror without first notifying the defendant or his counsel.5 The defendant argues that

147 A.3d 1108

he was entitled to notice prior to the excusal of the juror on the basis of the right to individual voir dire under article first, § 19, of the Connecticut constitution, as amended by article four of the amendments; the right to counsel under the sixth and fourteenth amendments to the United States constitution; and the due process right to be present at all critical stages of a prosecution under the fifth and fourteenth amendments to the United States constitution.6

168 Conn.App. 328

The defendant seeks Golding review. "Under Golding , a defendant can prevail on a claim of constitutional error not preserved at trial only if the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation ... exists and ... deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail. The appellate tribunal is free, therefore, to respond to the defendant's claim by focusing on whichever condition is most relevant in the particular circumstances." (Internal quotation marks omitted.) State v. Dixon , 318 Conn. 495, 511, 122 A.3d 542 (2015).

We conclude that the defendant's constitutional claims are unreviewable because he has failed to allege claims of constitutional magnitude as required by the second prong of Golding .

1

The defendant argues that article first, § 19, of the Connecticut constitution, requires a court to notify a defendant when a selected juror indicates that she is no longer able to participate in the proceeding so that

168 Conn.App. 329

defense counsel has an opportunity, if necessary, to voir dire the juror.7 We disagree.

Article first, § 19, provides in pertinent part that "[t]he right to question each juror individually by counsel shall be inviolate." Article first, § 19, does not, however, vest parties with an absolute right to question prospective and selected jurors individually at any time. Instead, our Supreme Court has interpreted article first, § 19, as constitutionalizing only "certain rights ... regarding the selection of individual jurors," namely, the right "to challenge jurors peremptorily" and the "right of the parties to have...

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12 practice notes
  • State v. Angel M., AC 39723
    • United States
    • Appellate Court of Connecticut
    • March 20, 2018
    ...and something must be allowed for the zeal of counsel in the heat of argument." (Internal quotation marks omitted.) State v. Elias V. , 168 Conn. App. 321, 347, 147 A.3d 1102, cert. denied, 323 Conn. 938, 151 A.3d 386 (2016). Accordingly, we conclude that the prosecutor's remark, which was ......
  • State v. Elmer G., (AC 37596).
    • United States
    • Appellate Court of Connecticut
    • September 12, 2017
    ...State v. Alex B. , 150 Conn.App. 584, 589, 90 A.3d 1078, cert. denied, 312 Conn. 924, 94 A.3d 1202 (2014) ; accord State v. Elias V. , 168 Conn.App. 321, 341–44, 147 A.3d 1102, cert. denied, 323 Conn. 938, 151 A.3d 386 (2016) ; State v. Devito , 159 Conn.App. 560, 574, 124 A.3d 14, cert. 17......
  • State v. Rios, AC 36987
    • United States
    • Appellate Court of Connecticut
    • February 28, 2017
    ...instructional error was "so clear, obvious and indisputable to warrant the extraordinary remedy of reversal." See State v. Elias V ., 168 Conn.App. 321, 338, 147 A.3d 1102 (concluding, but not deciding, that even if the defendant's waiver under Kitchens would not preclude him from seeking r......
  • State v. Hargett, AC 42405
    • United States
    • Appellate Court of Connecticut
    • March 3, 2020
    ...must be allowed for the zeal of counsel in the heat of argument." (Internal quotation marks omitted.) 229 A.3d 1070 State v. Elias V. , 168 Conn. App. 321, 347, 147 A.3d 1102, cert. denied, 323 Conn. 938, 151 A.3d 386 (2016)."[T]he prosecutor, as a public official seeking impartial justice ......
  • Request a trial to view additional results
12 cases
  • State v. Angel M., AC 39723
    • United States
    • Appellate Court of Connecticut
    • March 20, 2018
    ...and something must be allowed for the zeal of counsel in the heat of argument." (Internal quotation marks omitted.) State v. Elias V. , 168 Conn. App. 321, 347, 147 A.3d 1102, cert. denied, 323 Conn. 938, 151 A.3d 386 (2016). Accordingly, we conclude that the prosecutor's remark, which was ......
  • State v. Elmer G., (AC 37596).
    • United States
    • Appellate Court of Connecticut
    • September 12, 2017
    ...State v. Alex B. , 150 Conn.App. 584, 589, 90 A.3d 1078, cert. denied, 312 Conn. 924, 94 A.3d 1202 (2014) ; accord State v. Elias V. , 168 Conn.App. 321, 341–44, 147 A.3d 1102, cert. denied, 323 Conn. 938, 151 A.3d 386 (2016) ; State v. Devito , 159 Conn.App. 560, 574, 124 A.3d 14, cert. 17......
  • State v. Rios, AC 36987
    • United States
    • Appellate Court of Connecticut
    • February 28, 2017
    ...instructional error was "so clear, obvious and indisputable to warrant the extraordinary remedy of reversal." See State v. Elias V ., 168 Conn.App. 321, 338, 147 A.3d 1102 (concluding, but not deciding, that even if the defendant's waiver under Kitchens would not preclude him from seeking r......
  • State v. Hargett, AC 42405
    • United States
    • Appellate Court of Connecticut
    • March 3, 2020
    ...must be allowed for the zeal of counsel in the heat of argument." (Internal quotation marks omitted.) 229 A.3d 1070 State v. Elias V. , 168 Conn. App. 321, 347, 147 A.3d 1102, cert. denied, 323 Conn. 938, 151 A.3d 386 (2016)."[T]he prosecutor, as a public official seeking impartial justice ......
  • Request a trial to view additional results

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