State v. Gonzalez

• Decision Date: 02 March 2021
• Docket Number: SC 20317
• Citation: 257 A.3d 283,338 Conn. 108
• Parties: STATE of Connecticut v. Jose Diego GONZALEZ
• Court: Connecticut Supreme Court

338 Conn. 108

257 A.3d 283

STATE of Connecticut

v.Jose Diego GONZALEZ

SC 20317

Supreme Court of Connecticut.

Argued September 16, 2020

Officially released March 2, 2021^*

Vishal K. Garg, assigned counsel, West Hartford, for the appellant (defendant).

Laurie N. Feldman, deputy assistant state's attorney, with whom, on the brief, were Patrick Griffin, state's attorney, and Stacey M. Miranda, senior assistant state's attorney, for the appellee (state).

Robinson, C. J., and McDonald, D'Auria, Mullins, Kahn, Ecker and Vertefeuille, Js.

KAHN, J.

This certified appeal requires us to consider whether alleged instances of impropriety during the prosecutor's closing argument deprived the defendant, Jose Diego Gonzalez, of his federal constitutional rights to present a closing argument under the sixth amendment, and his fourteenth amendment due process right to a fair trial.¹ After a jury trial, the defendant was convicted of three counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), one count of home invasion in violation of General Statutes § 53a-100aa (a) (1), and one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). See State v. Gonzalez , 188 Conn. App. 304, 307, 204 A.3d 1183 (2019). The trial court rendered judgment in accordance with the jury's verdict and imposed a total effective sentence of sixty-five years of incarceration. Id., at 307, 312, 204 A.3d 1183. The defendant appealed from the trial court's judgment of conviction, claiming, among other things, that the prosecutor deprived him of his constitutional rights to present a closing argument and to a fair trial by (1) reserving her analysis of certain evidence for the rebuttal portion of her closing argument, and (2) mischaracterizing two pieces of evidence during rebuttal.² Id., at 307, 318, 204 A.3d 1183. The Appellate Court rejected those claims and affirmed the trial court's judgment. Id., at 307, 342, 204 A.3d 1183. The defendant now renews those same claims in the present appeal. For the reasons set forth in this opinion, we agree with the Appellate Court that neither the structure nor the content of the prosecutor's closing argument deprived the defendant of his constitutional rights and, accordingly, affirm the judgment of the Appellate Court.

The Appellate Court's decision sets forth the following relevant facts that the jury reasonably could have found. "The victim³ was ten years old on October 15, 2014, when the defendant entered her first floor apartment in a three-family house in Meriden at approximately 3:40 a.m. At that time, the victim, her mother, her mother's boyfriend, and the victim's younger siblings and stepsiblings were asleep in their respective bedrooms. The front door, a living room window, and the victim's bedroom window faced the front of the house above the porch that ran across the front of the house. The victim's brother had a bedroom in the rear of the apartment with a window above a hatchway that the defendant could have used to enter the apartment.

"Earlier, at approximately 8 p.m., the victim had fallen asleep in her bed in the room that she shared with her stepsisters. The victim awoke shortly before 3:45 a.m. when she felt someone touch her lower back. She saw a black man with short dreadlocks leaning over her. She did not know him, asked him who he was, and what he was doing there. The defendant did not answer her but asked her how old she was. She stated that she was eight years old, hoping that he would leave her alone. The defendant touched the victim's buttocks beneath her shorts and underwear. The victim pushed herself against the wall to stop him. The defendant took hold of the victim's ankles and put one over each of his shoulders and told her that ‘this won't hurt ....’

"The defendant pulled the victim's shorts and underwear down to her knees and put a pillow over her face. He pulled down his own pants, and rubbed and licked the victim's vagina before penetrating it with his penis. The victim tried to get away from the defendant, but she could not free herself from his grip. When the defendant finished, he pulled up the victim's underwear and shorts and threatened to kill her if she told anyone what he had done. He covered her with a blanket and told her to go to sleep. The defendant walked out of the victim's bedroom and partially closed the door. The victim watched him walk through the kitchen toward her brother's bedroom. The window in her brother's room was wide open. No one else in the house was aware of the defendant's presence. The victim's sisters remained asleep, and her brother heard nothing.

"The victim's mother had awakened at approximately 3:20 a.m., gone into the kitchen to get a bottle to feed her infant, and returned to her bedroom. She saw no one in the apartment at that time. Later, when the victim's mother went back to the kitchen, she saw the victim standing at her bedroom door. The victim, shaking with fright, ran into the kitchen and stated that there was a ‘black guy’ in her room. When the victim and her mother entered the victim's bedroom, they saw the defendant peering in the window from the front porch. The victim's mother had never seen the man before. He had dark skin and a braid hanging out of his hoodie. The defendant ran toward the back of the house. The victim's mother tried to pursue him, but she could not keep up with him.

"The victim told her mother what the defendant had done to her. When the victim went to the bathroom, she saw a clear, wet substance on her vagina and asked her mother if she could wash. The victim's mother, who was medically trained, recognized the presence of semen in her daughter's underwear. She instructed the victim not to wipe off anything. The police were summoned." (Footnote added; footnote omitted.) Id., at 307–309, 204 A.3d 1183.

The victim was transported to Yale-New Haven Hospital where Deborah Jane Gallagher, a trained nurse, utilized a sexual assault evidence collection kit under the supervision of a physician, Gunjan Tiyyagura. Gallagher took samples from the victim using three swabs, two from the victim's vagina and one from the victim's posterior fourchette, which was torn and bleeding. Id., at 309, 204 A.3d 1183. Using one of the swabs, Gallagher prepared a smear on a glass slide. At the end of that examination, the victim was taken to the Department of Children and Families’ child sexual abuse clinic for a forensic interview conducted by Theresa Montelli. See id. During the course of that interview, the victim described the physical appearance of the perpetrator, noting that he had a scratch on his left cheek, appeared to be clean shaven, and was approximately forty years old. Id.

On October 17, 2014, the police arrested the defendant in Waterbury. At the time of his arrest, the defendant was twenty-three years old, had a full beard, mustache, and short dreadlocks. Id., at 310, 204 A.3d 1183. The police took a DNA sample from the defendant and sent it to the state forensics laboratory to develop a genetic profile that could be compared to the results of the sexual assault evidence collection kit. The police also recovered fingerprints from the window of the bedroom of the victim's brother; however, some of the fingerprints were insufficiently defined to be evaluated. Id., 204 A.3d 1183.

At trial, Daniel T. Renstrom, an analyst at the state forensics laboratory, testified regarding his analysis of the samples received by the laboratory. Id. Specifically, Renstrom testified that he created genetic profiles for the victim, the defendant, and the material found on the three swabs contained in the sexual assault evidence collection kit. Id. In order to compare the DNA profiles of the victim and the defendant with the DNA profiles of those swabs, Renstrom separated the material on the swabs into two separate components, an epithelial-rich fraction and a sperm-rich fraction.⁴ Id.

Renstrom was unable to determine whether the defendant was a contributor to the mixture of DNA in the sperm-rich fraction developed from the swab of the victim's posterior fourchette because there was an insufficient amount of DNA present. Id., at 310–11, 204 A.3d 1183. Pursuant to laboratory policy, Renstrom, accordingly, "eliminated" the defendant as a contributor to that sample. Id., at 311, 204 A.3d 1183. Renstrom did conclude, however, that the defendant's DNA profile was included in the DNA mixture found in the sperm-rich fraction of the vaginal swabs. See id. Renstrom testified that the expected frequency of individuals who could be included as a contributor to that sample is approximately one in 52 million in the African-American population, one in 66 million in the Caucasian population, and one in 37 million in the Hispanic population. Id. On redirect examination, Renstrom explained this statement as follows: "[s]o what that statistic is referring to is, if I were to take [the] general population, type those people, and then compare it to the ... sample ... the expected frequency of individuals who could be a contributor to that sample ... is one in 52 million in the African-American population ...." The prosecutor then asked Renstrom if the population of Connecticut was three and one-half million, to which Renstrom responded, "[y]es."

In light of the nature of the claims presented in this appeal, we review, in detail, the closing arguments presented to the jury. The prosecutor began the initial portion of her closing argument by explaining that she intended to use her time to "highlight some of [the] evidence" that was presented over the course of the trial. The prosecutor made clear to the jury that its recollection of the evidence controlled, stating, "if you remember it differently, please remember that it's your recollection that counts."

The prosecutor then summarized the evidence concerning the events that transpired in the victim's home on the night of October 15, 2014. The...