State v. Gonzalez

• Decision Date: 02 August 2016
• Docket Number: No. 36656.,36656.
• Citation: 167 Conn.App. 298,142 A.3d 1227
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Juan Carlos GONZALEZ.

167 Conn.App. 298

142 A.3d 1227

STATE of Connecticut

v.Juan Carlos GONZALEZ.

No. 36656.

Appellate Court of Connecticut.

Argued May 24, 2016.

Decided Aug. 2, 2016.

Elizabeth Knight Adams, assigned counsel, Hartford, for the appellant (defendant).

Nancy L. Walker, deputy assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Elizabeth C. Leaming, senior assistant state's attorney, for the appellee (state).

ALVORD, PRESCOTT and MIHALAKOS, Js.

MIHALAKOS

, J.

The defendant, Juan Carlos Gonzalez, appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in a cohabiting relationship in violation of General Statutes § 53a–70b

, one count of assault in the second degree in violation of General Statutes § 53a–60 (a)(2), and two counts of criminal violation of a protective order in violation of General Statutes § 53a–223. On appeal, the defendant claims that the court abused its discretion by (1) denying his motion for a mistrial, (2) ordering him to wear shackles throughout the trial except when testifying, and (3) admitting evidence of his prior uncharged misconduct. We disagree and, accordingly, affirm the judgment of conviction.

The jury reasonably could have found the following facts. The defendant and the victim¹ immigrated to the United States in 1999, settling in Connecticut. They had three children together, the oldest of whom was twelve years old at the time of trial. The defendant became more controlling as the relationship progressed, and eventually became sexually and physically abusive. In the evening of December 12, 2012, the victim went to the Vernon Police Department to file a complaint against the defendant for physically abusing her. She also spoke briefly about past sexual abuse. The defendant then was arrested and charged with second degree assault and breach of the peace. Following his arrest, a protective order was issued on December 13, 2012, ordering the defendant not to harass or assault the victim, to stay away from her home, and not to contact her. The substitute information subsequently omitted the breach of the peace count but included four counts of sexual assault in a cohabiting relationship and violation of a protective order. The two counts of violation of a protective order counts were added after the defendant sent a letter to the victim, and asked several individuals to contact the victim on his behalf in violation of the protective order.

The jury found the defendant guilty of two counts of sexual assault in a cohabiting relationship in violation of § 53a–70b

, one count of assault in the second degree in violation of § 53a–60 (a)(2), and two counts of criminal violation of a protective order in violation of § 53a–223. It also acquitted the defendant of two additional counts of sexual assault in a cohabiting relationship in violation of § 53a–70b. This appeal followed.

I

The defendant contends that the court abused its discretion by denying his motion for a mistrial after it first admitted testimony by a police officer that the defendant, after giving an oral statement to the police, had refused to sign a sworn, written statement while in police custody, then reversed itself two days later and ruled that it would strike the testimony. The defendant moved for a mistrial, but the court denied the motion and instead struck the testimony and instructed the jury to disregard the stricken testimony. The defendant claims this was an abuse of discretion; we disagree.²

The record reveals the following additional relevant facts. A police officer testified regarding his questioning of the defendant. The defendant told the police that he had gone through his normal morning routine, had a minor argument with their daughter regarding her clothing, and had not seen any injuries on the victim. When told that the victim had made a complaint, he responded that she was crazy. The state then asked, “[w]as he willing to give a statement that was sworn and in writing?” The police officer responded that “[h]e did not give me a sworn written statement.”

We first set forth our standard of review and the relevant law. “In our review of the denial of a motion for mistrial, we have recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial. The decision of the trial court is therefore reversible on appeal only if there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. Anderson, 255 Conn. 425, 435, 773 A.2d 287 (2001)

. “If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided.” (Internal quotation marks omitted.)

State v. Luther , 114 Conn.App. 799, 805, 971 A.2d 781

, cert. denied, 293 Conn. 907, 978 A.2d 1112 (2009). “[A]s a general matter, the jury is presumed to follow the court's curative instructions in the absence of some indication to the contrary.” State v. Grenier, 257 Conn. 797, 810, 778 A.2d 159 (2001). Where an “evidentiary impropriety is not constitutional in nature, the defendant bears the burden of demonstrating harm.” Id., at 806–807, 778 A.2d 159. “[T]he burden is on the defendant to establish that, in the context of the proceedings as a whole, the stricken testimony was so prejudicial, notwithstanding the court's curative instructions, that the jury reasonably cannot be presumed to have disregarded it.” State v. McIntyre, 250 Conn. 526, 534, 737 A.2d 392 (1999).

The defendant argues that State v. Grenier, supra, 257 Conn. at 797, 778 A.2d 159

, is applicable to the present case. In Grenier, two experts testified regarding the victim's credibility, on which the case rested, and the court overruled the defendant's objection to the testimony. Id., at 802, 804, 807, 778 A.2d 159. Following closing arguments, the court, in its general instructions, stated that the jury should not rely on any witnesses' opinions on the victim's credibility. Id., at 805, 810, 778 A.2d 159. Our Supreme Court found reversible error. Id., at 812, 778 A.2d 159. It concluded that the improperly admitted testimony had an indelible impact on all of the subsequent testimony and argument, that the opinions of two experts on the central issue in the case were highly prejudicial, and that the instruction was ambiguous. Id., at 808–11, 778 A.2d 159.

In the present case, in contrast, the court reversed itself before the defendant took the stand, after the victim had taken the stand, and before any closing arguments; it therefore had the potential to influence much less of the evidence than in Grenier. In addition, the police officer's statement did not have nearly the potential prejudicial impact of an expert opinion regarding credibility. Furthermore, the court expressly reversed itself and specifically stated what testimony was stricken. The court, therefore, properly exercised its discretion by denying the defendant's motion for a mistrial.

II

The defendant next claims that the court abused its discretion by ordering that he wear leg shackles throughout the trial except when testifying. He asserts that the court's decision was improper because the reason for shackling the defendant was not the defendant's behavior, but, rather, a shortage of marshals. He further contends that, although the court took appropriate steps to hide the leg shackles from the jury, he should not be required to prove that the jury was aware of the leg shackles.

Our Supreme Court set out the standard of review and pertinent law for a shackling claim in State v. Tweedy, 219 Conn. 489, 506, 594 A.2d 906 (1991)

: “In reviewing a shackling claim, our task is to determine whether the court's decision to employ restraints constituted a clear abuse of discretion.... A record in some fashion disclosing the justification for using restraints ... is essential to meaningful appellate review of a shackling claim.” (Citations omitted.) “In order for a criminal defendant to enjoy the maximum benefit of the presumption of innocence, our courts should make every reasonable effort to present the defendant before the jury in a manner that does not suggest, expressly or impliedly, that he or she is a dangerous character whose guilt is a foregone conclusion.... The negative connotations of restraints, nevertheless, are without significance unless the fact of the restraints comes to the attention of the jury. [Where] the ... record is devoid of competent evidence that the jury was aware of the defendant's shackles at any time during his trial, it is clear beyond a reasonable doubt that the presumption of innocence was not abridged by the court's decision to shackle him.” (Citations omitted.) Id., at 508, 594 A.2d 906

; see also State v. Brawley, 321 Conn. 583, 588, 137 A.3d 757 (2016). “The defendant bears the burden of showing that he has suffered prejudice by establishing a factual record demonstrating that the members of the jury knew of the restraints.” (Internal quotation marks omitted.) State v. Brawley, supra, at 588, 137 A.3d 757.

The defendant's claim in the present case fails both prongs of the Tweedy analysis. The court set out its reasons for ordering the defendant to wear shackles on the record: the shortage of marshals, the proximity of multiple exits from the courtroom into a busy public area, the defendant's high bond, his motivation to flee to avoid deportation, and the defendant's prior behavior at a family court hearing. We see nothing in Tweedy or its progeny to suggest that these reasons are insufficient. See State v. Taylor, 63 Conn.App. 386, 390, 396, 776 A.2d 1154

(multiple doorways leading to crowded public space relevant to shackling), cert. denied, 257 Conn. 907, 777 A.2d 687, cert. denied, 534 U.S. 978, 122 S.Ct. 406, 151 L.Ed.2d 308 (2001). In addition, the record is replete with evidence that the court took steps to hide the leg shackles from the jury by asking the clerk to...