State v. Jones, 12172

• Decision Date: 14 September 1994
• Docket Number: No. 12172,12172
• Citation: 644 A.2d 355,34 Conn.App. 807
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Delmar Earl JONES.

Page 355

644 A.2d 355

34 Conn.App. 807

STATE of Connecticut v. Delmar Earl JONES.

No. 12172.

Appellate Court of Connecticut.

Argued April 25, 1994.

Decided June 3, 1994.

Certification Denied Sept. 14, 1994.

Margaret P. Levy, Hartford, for appellant (defendant).

David J. Sheldon, Deputy Asst. State's Atty., with whom, on the brief, were James E. Thomas, State's Atty., and Dennis J. O'Connor, Asst. State's Atty., for appellee (state).

Before DUPONT, C.J., and FOTI and LANDAU, JJ.

LANDAU, Judge.

The defendant appeals from the trial court's judgment of conviction, rendered after a trial to the court, of assault in the first degree in violation of General Statutes § 53a-59(a)(3), and risk of injury to a child in violation of General Statutes § 53-21. ¹ The defendant claims that the trial court improperly: (1) held that the evidence was sufficient to prove beyond a reasonable doubt that the defendant recklessly engaged in conduct that created a risk of death to another person, (2) admitted the defendant's statement made after several requests for the assistance of counsel, (3) admitted the defendant's statement, which was not made knowingly and intelligently given his mental deficiency, in violation of the defendant's constitutional rights.

The trial court reasonably could have found the following facts. On June 10, 1990, the defendant was living with Eloise Frett and their six month old son, S, and Frett's two year old child. ² Frett spent the day at her sister's apartment doing laundry and caring for her two children. In the evening, Frett returned to her apartment, fed her children, and put S to bed. The defendant had left the apartment during the afternoon, and returned at approximately 10 or 11 p.m. S, who had just awakened, was in his walker, playing with the two year old and laughing. Frett changed the baby's diaper, returned him to his walker, and then left the apartment to use a public telephone to call her mother. Only the defendant and the children were in the apartment. Frett was absent for more than an hour. Upon her return, the defendant and the two year old were watching television. When Frett asked the defendant where S was, he told her that he was sleeping on their bed. Frett found S in a crawling position on the bed with his eyes closed. She was unable to awaken him. Frett asked the defendant if anything unusual had happened to S and was told no. Frett summoned her sister, Joan, who came to Frett's apartment. Joan placed her finger in S's mouth. He bit down on her finger and would not release it. The women called an ambulance, and S was taken to Saint Francis Hospital.

Upon his admission to the hospital, S was unresponsive and could not be awakened; he was comatose. The medical staff at Saint Francis found that S suffered seizures approximately every forty minutes, his eye cavities were filled with blood from brain hemorrhaging, and the retina of one eye was detached. A staff physician who examined S believed that his condition would deteriorate and he would be incapable of sustaining life without respirator support. He arranged for S to be transferred to Hartford Hospital for that purpose.

An examination of S at Hartford Hospital revealed that his injuries had been sustained within the previous twenty-four hours and resembled injuries commonly caused by severe shaking and a sudden impact with a hard surface. S's condition was diagnosed as severe cerebral injury known as "shaken baby syndrome." ³ Further examination of S indicated that he had received other serious injuries recently. As a result of his injuries, S is permanently blind, will have severe motor impairment, will experience seizures for many years, perhaps for the rest of his life.

Additional facts pertaining to individual issues are given as necessary to address the defendant's claims.

The defendant's first claim is that there was no evidence from which the trial court reasonably could have inferred that the defendant's conduct created a risk of death to S. The defendant contends that expert testimony was lacking as to the creation of a risk of death. The defendant also challenges the trial court's finding that his conduct was reckless beyond a reasonable doubt.

" 'When reviewing a sufficiency of the evidence claim, we first examine the evidence in the light most favorable to upholding the jury's verdict. State v. Avis, 209 Conn. 290, 309, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S.Ct. 1570, 103 L.Ed.2d 937 (1989); State v. Rice, 25 Conn.App. 646, 650, 595 A.2d 947 (1991). We then determine on the basis of the facts established and the inferences that reasonably could be drawn from those facts whether the jury reasonably could have concluded that the cumulative effect of the evidence established the defendant's guilt beyond a reasonable doubt. State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991); State v. Hopes, 26 Conn.App. 367, 376, 602 A.2d 23, cert. denied, 221 Conn. 915, 603 A.2d 405 (1992). We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. State v. Robinson, 213 Conn. 243, 254, 567 A.2d 1173 (1989).' State v. Lago, 28 Conn.App. 9, 30, 611 A.2d 866, cert. denied, 223 Conn. 919, 614 A.2d 828 (1992). Our inquiry into whether the evidence in the record would support a finding of guilt beyond a reasonable doubt does not require us to ask if we believe that the evidence established guilt beyond a reasonable doubt, but rather if 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' (Emphasis in original.) State v. Boykin, 27 Conn.App. 558, 563-64, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992). Once a defendant has been found guilty of the crime charged, we conduct our judicial review of all of the evidence in the light most favorable to the prosecution. Id., 27 Conn.App. at 564, 609 A.2d 242." (Emphasis added.) State v. Hamilton, 30 Conn.App. 68, 72, 618 A.2d 1372 (1993), affirmed, 228 Conn. 234, 636 A.2d 760 (1994).

In State v. Rumore, 28 Conn.App. 402, 413, 613 A.2d 1328, cert. denied, 224 Conn. 906, 615 A.2d 1049 (1992), this court held that "[t]he risk of death element of the [General Statutes § 53a-59(a)(3) ] focuses on the conduct of the defendant, not on the resulting injury to the victim." ⁴ "The statute does not require that the victim was in fact at a risk of death." Id., 28 Conn.App. at 414, 613 A.2d 1328. The issue is whether violent shaking and a sudden impact of an infant with a hard surface is reckless conduct that creates a risk of death. Id. General Statutes § 53a-3(13) provides that "[a] person acts 'recklessly' with respect to a result ... when he is aware of and consciously disregards a substantial and unjustifiable risk that such a result will occur.... The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation...." S suffered injuries from violent shaking and a sudden impact with a hard surface. Such treatment of any child is a gross deviation from a reasonable standard of conduct. The defendant had prepared breakfast for the two children that morning. He was familiar with the proper care and treatment of young children. The record adequately supports the trial court's finding that violent shaking and subjecting the infant to a sudden impact is reckless conduct beyond a reasonable doubt.

The extent of the infant's injuries also indicates a conscious disregard of a substantial risk of death. For about one hour, the time between Frett's departure from the apartment when S was seemingly uninjured and her return and finding him injured, the defendant did not call an ambulance or seek help for S. S arrived at Saint Francis Hospital in a coma, and he was suffering from recurring seizures every thirty to forty minutes. The examining physician found it medically necessary to transport the infant to Hartford Hospital because his condition could deteriorate to a point at which the infant could not sustain life without respirator assistance. We conclude that the trial court reasonably could find beyond a reasonable doubt that the defendant's conduct was reckless and that such conduct created a risk of death to S.

The defendant next claims that the trial court improperly admitted his statement made after his requests for the assistance of counsel in violation of his constitutional rights under the fifth and fourteenth amendments.

Additional facts are necessary for the resolution of this issue. On July 26, 1990, Detective Ernest Scott of the youth services division of the Hartford police department went to the defendant's apartment, and asked him and Frett if they would be willing to go to the police station to give voluntary statements concerning the events of the evening of S's injuries. They both agreed. Scott then transported the couple to the police station. Scott interviewed Frett first, then the defendant. Before the interview began, Scott advised the defendant of his Miranda rights, ⁵ and also read to him his rights from the waiver of rights form. Scott asked the defendant if he understood each one of the rights read to him; the defendant said that he did. The defendant initialed the form five times next to each Miranda right listed on the waiver of rights form, and signed the form at the bottom. At no time did the defendant request an attorney. Scott took the defendant's statement, read the statement back to him, and the defendant signed it as his own.

The defendant now argues that the trial court violated his constitutional rights in admitting the statement. The trial court denied the defendant's motion to suppress the statement because it found that the defendant's testimony that his request for an attorney was denied the day he gave his statement to the police was...