State v. Gilberto L., No. 18213.

CourtSupreme Court of Connecticut
Writing for the CourtZarella
Citation292 Conn. 226,972 A.2d 205
PartiesSTATE of Connecticut v. GILBERTO L.<SMALL><SUP>*</SUP></SMALL>
Docket NumberNo. 18213.
Decision Date23 June 2009
972 A.2d 205
292 Conn. 226
STATE of Connecticut
v.
GILBERTO L.*
No. 18213.
Supreme Court of Connecticut.
Argued January 15, 2009.
Decided June 23, 2009.

[972 A.2d 209]

Suzanne Z. Curtis, 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 Cornelius P. Kelly, senior assistant state's attorney, for the appellee (state).

ROGERS, C.J., and PALMER, VERTEFEUILLE, ZARELLA and SULLIVAN, Js.

ZARELLA, J.


292 Conn. 228

The defendant, Gilberto L., appeals from the judgment of conviction, rendered

972 A.2d 210

after a jury trial, of one count of risk of injury to a child in violation of

292 Conn. 229

General Statutes (Rev. to 2003) § 53-21(a)(1),1 and one count of risk of injury to a child in violation of § 53-21(a)(2). The defendant claims, inter alia, that the judgment should be reversed and a new trial ordered because the trial court violated his right under the sixth2 and fourteenth3 amendments to the United States constitution and Practice Book §§ 44-74 and 44-85 to be present at trial. He specifically claims that the trial court improperly replayed6 crucial portions of the trial

292 Conn. 230

testimony during jury deliberations when he was unable to be present due to circumstances beyond his control and that the court's curative instructions failed to minimize the prejudicial effect of his absence. He further claims that he was deprived of his right to a fair trial because the senior assistant state's attorney (prosecutor) made several improper comments during closing argument that were not mitigated by the trial court's instructions to the jury. The state replies that the playback of testimony did not occur during a "critical stage" of the proceedings, and, therefore, the defendant was not substantially prejudiced merely because he was absent. The state adds that the trial court instructed the jury not to consider the defendant's absence and that it is to be presumed that jury instructions are followed. The state also argues that the prosecutor's comments during closing argument were not

972 A.2d 211

improper, and, to the extent that they were, any potential prejudice to the defendant was cured by the court's instructions to the jury. We affirm the judgment of the trial court.

A jury reasonably could have found the following facts. On or about June 3, 2003, the victim, an eight year old girl, rode around the block for about ten minutes in the defendant's car, starting in front of her home. No one other than the defendant and the victim was present in the car at the time. After she entered the car on the front passenger side, she moved closer to where the defendant was sitting because she wanted to drive. She then positioned herself so that she was standing in front of the defendant with her hands on the wheel while the defendant was sitting on the driver's seat operating the pedals. She was wearing blue shorts, a blue shirt and underwear at the time. While she was standing in front

292 Conn. 231

of the defendant, the victim felt the defendant's "private" touch her "behind." She also recalled that the defendant put his "private" inside her underwear while she was standing and that, when she sat down, she felt it "in the same place [as] before." She did not, however, see the defendant's "private," he did not touch any other part of her body, and his "private" did not move while it was touching her. When she returned from the ride, she and the defendant said goodbye, and she exited the car on the front passenger side. Upon leaving the car, she saw that the zipper on the defendant's pants was down.

After the defendant dropped the victim off at her house, she went upstairs to the bathroom, put her clothes in the hamper, which contained other dirty clothes, and took a shower. She noticed at the time that her shorts felt wet. Although her mother and a friend were inside the house when she returned, the victim did not tell them what had happened because she thought that her mother would yell at her for going on the ride. When her mother asked her if anything had happened, she said "no."

The victim wanted to tell her mother about what had happened and felt bad that she had not done so. She became quiet after the incident, which was not in her nature. A few days later, however, she told her mother, her older brother and his girlfriend about the incident, and the family informed the police.

Following an investigation, the defendant was arrested and charged with attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-70 and 53a-49, one count of risk of injury to a child in violation of § 53-21(a)(2), and a second count of risk of injury to a child in violation of § 53-21(a)(1). The defendant pleaded not guilty and elected to be tried by a jury.

292 Conn. 232

The trial commenced on July 22, 2005. On August 15, 2005, the jury found the defendant not guilty of attempt to commit sexual assault in the first degree but guilty of two counts of risk of injury to a child. On January 19, 2006, the court sentenced the defendant to a total effective sentence of twelve years incarceration, execution suspended after eight years, and ten years probation. This appeal followed.7

I

The defendant first claims that he was deprived of his right to be present at trial under the federal constitution and the rules of practice when the trial court improperly

972 A.2d 212

denied defense counsel's motion for a mistrial and ordered the playback of trial testimony during jury deliberations when he was involuntarily absent. He claims that (1) there was no indication that any members of the jury could not wait to finish the playback until after his return to the courtroom, (2) his expected return was only eleven days after the court permitted the playback in his absence, and, therefore, the total length of time that the jury would have been required to serve was not great because the trial itself had not been lengthy, (3) the playback constituted a critical stage of the proceedings during which he should have been present, and (4) the trial court's instructions were inadequate to cure the prejudicial effect of his absence. We disagree.

The following additional facts are relevant to our resolution of this claim. The jury began its deliberations on Tuesday, July 26, 2005. At approximately 4 p.m., the jury sent a note to the court requesting a playback of the defendant's and the victim's testimony. Although the record does not indicate whether the defendant was

292 Conn. 233

present at that time, counsel for both sides were present and did not object to the jury's request to hear the playback.8 When the jurors entered the courtroom, the court stated that it would allow them to hear the playback for approximately fifteen minutes before adjourning and would finish playing the remaining portion of the requested testimony two days later on Thursday, July 28. The court further stated that the jurors could take notes during the playback and gave instructions on the "ground rules" for note taking. The court emphasized, however, that it was the jurors' recollections, not their notes, that should guide them if there was a conflict between the two. The court also reminded the jurors that their notes were not evidence and that the verdict must be based exclusively on the evidence presented at trial. Neither party objected to the taking of notes during the playback. Thereafter, the court ran the playback for several minutes and then excused the jurors until July 28.

When the court reconvened on July 28, it noted for the record, outside the jurors' presence, that the defendant had been admitted to the hospital at 3 a.m. that morning due to a severe case of diverticulitis and that his physician had stated that his earliest possible release would not be until the following Monday morning, August 1. The court also stated that counsel had agreed to comply with its request not to be present because seeing counsel unaccompanied by the defendant might

292 Conn. 234

cause the jurors to view the defendant in a negative light. The court explained that it intended to address the jurors without revealing the cause of the delay and then excuse them for the day, an approach with which both counsel previously had agreed. The jurors then entered the courtroom, and the court stated that something unanticipated had "come up" that the court "ha[d] to work on." The court asked the jurors to "trust ... in that statement" and apologized more than once for the unexpected disruption. After instructing the jurors on how to contact the court for further information regarding when the proceedings would resume, it excused

972 A.2d 213

them for the day. As soon as the jurors left the courtroom, counsel for the parties entered, and the court explained what had just transpired. Counsel acknowledged that they had waived their right to be present during the court's discussion with the jurors and expressed their agreement with what the court had said and done.

On August 1, the court reconvened and told counsel, outside the presence of the jurors, that the earliest day that the defendant would be released from the hospital was Wednesday, August 3, and that it would like to speak with the jurors again in the same manner as it did before. After counsel consented and left the courtroom, the court met with the jurors, informed them that something had come up that it had to work on and excused them until Thursday morning, August 4.

When the proceedings resumed on August 4, the court informed counsel that the defendant had been released from the hospital on Tuesday, August 2, but had been rushed back early that morning and was currently sedated and unable to attend the proceeding. Defense counsel moved for a mistrial because the defendant would be absent for the scheduled playback, which the defense...

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24 practice notes
  • State v. Osimanti, No. 18311.
    • United States
    • Supreme Court of Connecticut
    • November 9, 2010
    ...a defense are made applicable to the states through the due process clause of the fourteenth amendment. See, e.g., State v. Gilberto L., 292 Conn. 226, 229 n. 2, 972 A.2d 205 (2009). 10 Giglio testified during the offer of proof that she had notified the police in October, 2003, because she......
  • State v. Courtney G., SC 20290
    • United States
    • Supreme Court of Connecticut
    • June 21, 2021
    ...testifying [is] not only visible to the jurors but [is] properly before them as evidence of [his] credibility." State v. Gilberto L. , 292 Conn. 226, 247, 972 A.2d 205 (2009). The prosecutor did not disparage the defendant or appeal to the jurors’ emotions by commenting inappropriately on h......
  • State v. Zapata, No. 30426.
    • United States
    • Appellate Court of Connecticut
    • March 9, 2010
    ...is not claiming that he was denied the right to confrontation. 13. Our Supreme Court applied the logic of Snyder in State v. Gilberto L., 292 Conn. 226, 972 A.2d 205 (2009), when it concluded that the hospitalized the defendant, Gilberto L., was not denied the right to be present at a criti......
  • State v. TOMAS D., No. 18415.
    • United States
    • Supreme Court of Connecticut
    • June 1, 2010
    ...compulsory process are made applicable to the states through the due process clause of the fourteenth amendment." State v. Gilberto L., 292 Conn. 226, 229 n. 2, 972 A.2d 205 2 Article first, § 8, of the constitution of Connecticut provides in relevant part: "In all criminal prosecutions, th......
  • Request a trial to view additional results
24 cases
  • State v. Elias V., AC 38487
    • United States
    • Appellate Court of Connecticut
    • September 20, 2016
    ...the charge" when determining whether a proceeding is a critical stage. (Internal quotation marks omitted.) State v. Gilberto L ., 292 Conn. 226, 237, 972 A.2d 205 (2009).In this case, the court's decision to excuse the juror because of a medical diagnosis did not amount to a "tria......
  • State v. Osimanti, No. 18311.
    • United States
    • Supreme Court of Connecticut
    • November 9, 2010
    ...a defense are made applicable to the states through the due process clause of the fourteenth amendment. See, e.g., State v. Gilberto L., 292 Conn. 226, 229 n. 2, 972 A.2d 205 (2009). 10 Giglio testified during the offer of proof that she had notified the police in October, 2003, because she......
  • State v. TOMAS D., No. 18415.
    • United States
    • Supreme Court of Connecticut
    • June 1, 2010
    ...process are made applicable to the states through the due process clause of the fourteenth amendment." State v. Gilberto L., 292 Conn. 226, 229 n. 2, 972 A.2d 205 2 Article first, § 8, of the constitution of Connecticut provides in relevant part: "In all criminal prosecutions, the......
  • State v. Tomas D., (SC 18415) (Conn. App. 6/1/2010), (SC 18415).
    • United States
    • Appellate Court of Connecticut
    • June 1, 2010
    ...process are made applicable to the states through the due process clause of the fourteenth amendment." State v. Gilberto L., 292 Conn. 226, 229 n.2, 972 A.2d 205 2. Article first, § 8, of the constitution of Connecticut provides in relevant part: "In all criminal prosecutions, the......
  • Request a trial to view additional results

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