State v. Gibson

• Citation: 850 A.2d 1040,270 Conn. 55
• Decision Date: 06 July 2004
• Docket Number: (SC 16968).
• Court: Supreme Court of Connecticut
• Parties: STATE OF CONNECTICUT, v. TONY E. GIBSON.

270 Conn. 55

850 A.2d 1040

STATE OF CONNECTICUT, v. TONY E. GIBSON.

(SC 16968).

Supreme Court of Connecticut.

Argued February 19, 2004.

Officially released July 6, 2004.

Borden, Norcott, Katz, Palmer and Zarella, Js.

Frederick W. Fawcett, supervisory assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Cornelius P. Kelly, senior assistant state's attorney, for the appellant (state).

Joseph G. Bruckmann, public defender, for the appellee (defendant).

Opinion

ZARELLA, J.

The state appeals, following our grant of certification, from the judgment of the Appellate Court reversing the defendant's conviction of sexual assault in the second degree and risk of injury to a child in connection with the defendant's sexual abuse of J,¹ a daughter of the defendant's former fiance. The state claims that the Appellate Court incorrectly concluded that the trial court's final instructions to the jury as to the time that the crimes were committed, in the absence of a limiting instruction regarding the use of prior uncharged misconduct evidence, were in violation of the defendant's constitutional right to be informed of the charges against him under the sixth amendment to the United States constitution.² We conclude that the defendant's unpreserved claim of a sixth amendment violation is one of induced error, and, therefore, the defendant is not entitled to review of his claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).³ Accordingly we reverse in part the judgment of the Appellate Court.

The defendant, Tony E. Gibson, was charged in a five count information with five separate crimes involving C, J and I, three of the daughters of P, to whom the defendant had been engaged. With respect to C, who was eight years old when the crimes were committed,⁴ the defendant was charged with sexual assault in the first degree in violation of General Statutes (Rev. to 1999) § 53a-70 (a) (2)⁵ and risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21 (2).⁶ With respect to J, who was thirteen years old when the crimes were committed,⁷ the defendant was charged with sexual assault in the second degree in violation of General Statutes (Rev. to 1999) § 53a-71 (a) (1)⁸ and risk of injury to a child in violation of § 53-21 (2). With respect to I, who was thirteen years old when the crimes were committed, the defendant was charged with threatening in violation of General Statutes (Rev. to 1999) § 53a-62 (a) (1).⁹ The defendant was convicted of all five crimes and received a total effective sentence of twenty years imprisonment, execution suspended after sixteen years, and twenty-five years probation.

On appeal to the Appellate Court, the defendant made numerous claims of error.¹⁰ Thereafter, the Appellate Court affirmed the judgment of conviction as to the counts involving C and I and reversed the judgment of conviction as to the counts involving J and ordered a new trial.¹¹ This certified appeal followed.

The following facts are set forth in the opinion of the Appellate Court. "The defendant occasionally stayed overnight at the family home of P the mother of the three victims of the crimes with which the defendant was accused. On the evening in question, P and her daughter C were sleeping in the same bed. During the night, the defendant woke C by touching her. The defendant pulled down her pants and underpants, and put his fingers inside of her vagina. He then pulled up her pants and underpants, and told her not to tell anyone. When P awoke in the morning, the defendant also was in the bed. P did not know when the defendant had arrived during the night and was not aware that anything had happened between the defendant and C.

"Later that same morning, after her mother had left, J was in her room when the defendant called her into her mother's bedroom. The defendant told J to sit on the bed, which she did. He then removed her pants and pulled her underpants down to her knees. He inserted his penis into her vagina. She was on her back and he was on top of her, moving back and forth. I . . . saw J lying on her back with her legs spread and the defendant on top of her, moving back and forth. J had on a top, but no pants or underpants, and the defendant was wearing only a shirt. I went to a fourth sister's room and told her what she had just seen. . . .

* * *

"The information alleged that all of the crimes took place during the `early morning hours' or the `morning hours' of August 7, 2000. Over the objection of the defendant, J testified that on more than one occasion prior to August 7, 2000, at her home, when her mother was not there, the defendant engaged in sexual intercourse with her. The state acknowledges that those occasions occurred one or two years prior to August 7, 2000. On some of the occasions, the defendant had given J money afterward, with which she bought candy.

"The state sought the admission of the prior acts. . . to prove a common scheme and motive, and the testimony was admitted by the court `for purposes of showing a common design and limited to that.'<sup>12</sup> Before J testified . . . the court stated outside of the presence of the jury that it would admit her testimony but that `it would give some cautionary instructions to the jury' as to the proper use of the testimony. The day after the testimony, not having yet given such instructions, the court again stated that it would give such an instruction to tell the jury that the testimony was offered for the purpose of showing `a common design and limited to that.'<sup>13</sup> Later that same day, the court asked the defendant if he wanted such an instruction and defense counsel answered: `It's the position of the defense that the prejudicial impact of the testimony so outweighs the probative value . . . that the defense feels no amount of cautionary instructions would help.' Defense counsel then requested a mistrial, which the court denied. The court then stated: `I'm not going to give an instruction, then. The defendant has . . . requested that I not do so, all right? All right.' The court also stated that it might `address the issue' during the course `of the charge to the jury.'

"The court gave no instruction during the trial, or in its final instructions to the jury, as to the proper use of the evidence of the prior uncharged misconduct, which had occurred one or two years before August 7, 2000." State v. Gibson, 75 Conn. App. 103, 106-109, 815 A.2d 172 (2003).

In its final instructions, however, the court advised the jury as to the element of time: "The state has alleged that the defendant committed these crimes at a certain time. It is not essential in a criminal prosecution . . . that a crime be proved to have been committed at a precise time alleged. It is sufficient for the state to prove the commission of the crime at any . . . time prior to the date of the complaint within the statute of limitations. Time is not an essential element of the offense." The defendant did not take exception to any portion of the charge or file a written request to charge, pursuant to Practice Book § 42-16, seeking a limiting instruction as to the use of the prior uncharged misconduct evidence.

During its deliberations, the jury sent a note to the court asking when the defendant had committed the first of the several acts of prior uncharged misconduct¹⁴ described by J. The court responded that there had been no testimony regarding when the prior acts had taken place other than that they had occurred before August 7, 2000. The jury then completed its deliberations and returned a verdict of guilty on all five counts.

On appeal to the Appellate Court, the defendant claimed, as to the second degree sexual assault and risk of injury charges involving J, that the omission of a limiting instruction, when combined with the nonspecific language of the trial court's instruction as to the time that the crimes were committed, compromised his right under the sixth amendment to the United States constitution to be informed of the nature and cause of the charges against him¹⁵ and his fourteenth amendment due process right to a unanimous verdict. With respect to the defendant's conviction of second degree sexual assault, the Appellate Court determined that the defendant's claim raised a sixth amendment issue that warranted review under Golding. State v. Gibson, supra, 75 Conn. App. 118. After further determining that the instruction regarding the time that the crimes were committed "obviated the state's need to prove that the crime was committed on or about" the date of the crime alleged in the information; id., 119; the Appellate Court concluded that "the lack of a limiting instruction was exacerbated by the instruction of the court that the defendant could be found guilty without any need for the state to prove the commission of the crime at the precise time alleged and that it was sufficient for the state to prove the commission of the crime . . . at any time prior to the date of the complaint . . . . The combination almost surely guaranteed a verdict of guilt . . . because the uncharged misconduct evidence was likely used by the jury for the substantive purpose of proving the charged crime . . . ." (Citation omitted; internal quotation marks omitted.) Id., 120.

The Appellate Court reached a similar conclusion with respect to the defendant's risk of injury conviction in connection with his abuse of J: "The evidence of that misconduct, in combination with the lack of a limiting instruction prohibiting its use by the jury to conclude that the defendant had committed the crime of risk of injury to a child as to J, as charged, and the instruction that the particular time the charged crime was committed was not an essential element of the offense, lead us to conclude that the defendant is entitled to a new trial on the fourth count of the information, as well as on the third count." Id., 121. Accordingly, the...