State v. Fox

• Decision Date: 27 August 2019
• Docket Number: AC 41009
• Citation: 217 A.3d 41,192 Conn.App. 221
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Michael FOX

192 Conn.App. 221

217 A.3d 41

STATE of Connecticut

v.Michael FOX

AC 41009

Appellate Court of Connecticut.

Argued May 16, 2019

Officially released August 27, 2019

Megan L. Wade, assigned counsel, with whom was Emily Graner Sexton, assigned counsel, for the appellant (defendant).

Kathryn W. Bare, assistant state's attorney, with whom, on the brief, was Kevin D. Lawlor, deputy chief state's attorney, for the appellee (state).

Lavine, Keller and Bishop, Js.

KELLER, J.

The defendant, Michael Fox, appeals from the judgment of conviction, rendered after a jury trial, of home invasion in violation of General Statutes § 53a-100aa (a) (1), conspiracy to commit home invasion in violation of General Statutes §§ 53a-48 and 53a-100aa (a) (1), assault in the first degree in violation of General Statutes § 53a-59 (a) (4), and conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 and 53a-59 (a) (4). On appeal, the defendant claims that (1) the trial court violated the double jeopardy clause of the United States constitution by sentencing the defendant on two counts of conspiracy on the basis of a single agreement with multiple criminal objectives, (2) the state violated the defendant's right to due process under the Connecticut constitution as a result of the destruction or loss of photographs depicting the crime scene, and (3) the trial court erred in denying the defendant's request for an adverse inference jury instruction. We agree with the defendant's first claim only and, accordingly, affirm in part and reverse in part the judgment of the trial court.

The jury reasonably could have found the following facts. Nicole Hart resided in Milford in an in-law apartment (apartment) connected to a main residence. The apartment consists of a bedroom, bathroom, kitchen, and living room. An interior door separates the apartment from the main residence. At the time of the incident in question, Nicole Hart's grandmother, Dorothy Hart, owned the dwelling and lived in the main residence, along with Nicole Hart's cousin, Thomas Hart, and Nicole Hart's father. Nicole Hart's cousin, Christopher Hart, also lived in the main residence at the time of the incident. Nicole Hart and Joe Fox, the defendant's brother, were involved romantically, intermittently from 2007 through October, 2014, and they share a child together. Joe Fox lived with Nicole Hart in the apartment for several weeks, from late September through mid-October, 2014, until the two ended their relationship in the second week of October, 2014.

On October 26, 2014, Thomas Hart texted Joe Fox, alerting him that Nicole Hart's new boyfriend, Anthony Esposito, was at the apartment. Later in the day, Thomas Hart drove to a park near the dwelling where he met Joe Fox, who was driving a vehicle with two passengers: the defendant and Zachary Labbe. Joe Fox then followed Thomas Hart to the dwelling where Thomas Hart, Joe Fox, the defendant, and Labbe exited their vehicles. At approximately 11:30 p.m., the four men entered the main residence through the front door on the left-hand side of the dwelling and proceeded into the apartment. The defendant, Joe Fox, and Labbe then entered Nicole Hart's bedroom where she was in bed asleep with Esposito. Joe Fox dragged Nicole Hart, by her neck, from the bedroom into the adjoining kitchen where he directed expletives at her and strangled her, causing her to lose control of her bladder. From the kitchen, Nicole Hart could hear crashing noises coming from the bedroom where the defendant, Labbe, and Esposito were located. Joe Fox returned to the bedroom where he, the defendant, and Labbe punched and kicked Esposito. Nicole Hart went to the main residence to call 911 from the residence's landline telephone. Meanwhile, Joe Fox, the defendant, Thomas Hart, and Labbe exited the apartment and left in the same cars in which they had arrived.

Police arrived at the residence at approximately 11:45 p.m. where they found Esposito, who was bleeding and bruised about his head and face. Police also observed blood on the floor of the entry way of Nicole's bedroom as well as on the mattress in Nicole's bedroom. An ambulance took Esposito to the hospital where he was treated for orbital wall fractures of both eyes, a nasal bone fracture, a closed head injury, and lacerations to the inside of his mouth.

Later that same night, police located the vehicle that Joe Fox had used to transport himself, the defendant, and Labbe to and from the dwelling. Law enforcement found Esposito's blood on the steering wheel, exterior driver's side door handle, and exterior driver's side door of the vehicle in question. Lieutenant Richard Anderson, of the Milford Police Department, obtained an arrest warrant for the defendant. The defendant was arrested on October 31, 2014, and subsequently charged with home invasion in violation of § 53a-100aa (a) (1), conspiracy to commit home invasion in violation of §§ 53a-48 and 53a-100aa (a) (1), assault in the first degree as to Esposito in violation of § 53a-59 (a) (4), and conspiracy to commit assault in the first degree as to Esposito in violation of §§ 53a-48 and 53a-59 (a) (4).

Following a jury trial, the defendant was found guilty of home invasion, conspiracy to commit home invasion, assault in the first degree, and conspiracy to commit assault in the first degree. The defendant received a total effective sentence of ten years of incarceration.¹ This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court violated the double jeopardy clause of the United States constitution by sentencing him on two counts of conspiracy pursuant to a single agreement with multiple criminal objectives. Specifically, he argues that the court committed plain error when it rendered judgment and sentenced him on the charges of conspiracy to commit home invasion and conspiracy to commit assault in the first degree because both of those counts stemmed from a single unlawful agreement to enter the apartment and harm Esposito. In its reply brief, the state agrees with the defendant that there was only one conspiracy and therefore the defendant's conviction of two counts of conspiracy constitutes a violation of the defendant's right against double jeopardy. We, too, agree that a double jeopardy violation exists and that the appropriate remedy is to reverse the judgment of conspiracy to commit assault in the first degree and remand the case to the trial court with direction to vacate the defendant's conviction of conspiracy to commit assault in the first degree.

The defendant concedes, and the state agrees, that his double jeopardy claim was not preserved at trial and thus seeks review pursuant to State v. Golding , 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R. , 317 Conn. 773, 120 A.3d 1188 (2015).² The first Golding prong is met because the record is adequate for review. There is a clear record of the allegations underlying the defendant's convictions, as well as a clear record of the offenses of which he was convicted. "A defendant may obtain review of a double jeopardy claim, even if it is unpreserved, if he has received two punishments for two crimes, which he claims were one crime, arising from the same transaction and prosecuted at one trial ...." (Internal quotation marks omitted.)

State v. Urbanowski , 163 Conn. App. 377, 386–87, 136 A.3d 236 (2016), aff'd, 327 Conn. 169, 172 A.3d 201 (2017). Additionally, "claims of double jeopardy involving multiple punishments in the same trial present a question of law to which we afford plenary review." State v. Kurzatkowski , 119 Conn. App. 556, 568, 988 A.2d 393, cert. denied, 296 Conn. 902, 991 A.2d 1104 (2010) ; see also State v. Burnell , 290 Conn. 634, 642, 966 A.2d 168 (2009) ; State v. Culver , 97 Conn. App. 332, 336, 904 A.2d 283, cert. denied, 280 Conn. 935, 909 A.2d 961 (2006).

Further, the second Golding prong is met because a claim of a double jeopardy violation is of constitutional magnitude. The double jeopardy clause of the fifth amendment to the United States constitution provides that no person shall "be subject for the same [offense] to be twice put in jeopardy of life or limb ...." U.S. Const., amend. V.

The third Golding prong is also met because in the present case, the trial court convicted and sentenced the defendant on separate charges of conspiracy to commit home invasion in violation of §§ 53a-48 and 53a-100aa (a) (1), and conspiracy to commit assault in the first degree in violation of §§ 53a-48 and 53a-59 (a) (4) that were based on a single conspiratorial agreement. "Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one.... The single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute ...." (Citations omitted; internal quotation marks omitted.) Braverman v. United States , 317 U.S. 49, 53–54, 63 S. Ct. 99, 87 L. Ed. 23 (1942). "[U]nder Connecticut law; see, e.g., State v. Ortiz , 252 Conn. 533, 559, 747 A.2d 487 (2000) ; it is a double jeopardy violation to impose cumulative punishments for conspiracy offenses if they arise from a single agreement with multiple criminal objectives." State v. Wright , 320 Conn. 781, 829, 135 A.3d 1 (2016). Here, both conspiracy convictions arose from the single agreement reached by the defendant, Joe Fox, Labbe, and Hart to enter the apartment and inflict serious injury to Esposito. Therefore, the charges in question arise out of the same act or transaction.

The fourth Golding prong is met because the state has failed to demonstrate that the alleged constitutional violation was harmless beyond a reasonable doubt. To the...