State v. Jose, AC 35836

• Decision Date: 26 May 2015
• Docket Number: AC 35836
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. JOSE V.

STATE OF CONNECTICUT v. JOSE V.^*

AC 35836

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued February 10, 2015

May 26, 2015

DiPentima, C. J., and Alvord and Pellegrino, Js.

(Appeal from Superior Court, judicial district of Hartford, geographical area number twelve, Fuger, J.)

Glenn W. Falk, assigned counsel, for the appellant (defendant).

Rocco A. Chiarenza, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Adam B. Scott, supervisory assistant state's attorney, for the appellee (state).

Opinion

ALVORD, J. The defendant, Jose V., appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A) and risk of injury to a child in violation of General Statutes § 53-21 (a) (2). On appeal, the defendant claims that the trial court improperly considered his handwritten letter, which included incriminating remarks,¹ when it imposed his sentence. Specifically, the defendant claims that the court's consideration of the letter (1) violated his constitutional privilege against self-incrimination and deprived him of his right to the effective assistance of counsel, and (2) was improper because the contents were protected by the attorney-client privilege. The defendant requests this court to exercise its supervisory authority to remand the matter to the trial court for resentencing by another judge without consideration of his letter. We disagree with all of the defendant's claims and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant is a native of Ecuador. He was married to the grandmother of the victim and lived in New York, but he visited the victim and her family in Connecticut on weekends. In October, 2009, when the victim was four years old, the defendant inappropriately touched her during one of his visits. The victim disclosed the incident to her mother, who contacted the Manchester Police Department. The defendant provided a statement to Detective A.J. DeJulius, in which he denied making inappropriate contact with the victim and explained that she may have mistakenly thought he had done so while he was tickling her.

The defendant was arrested and charged with the offenses for which he was convicted. At trial, the defendant testified on his own behalf and denied ever touching the victim in her vaginal area. He further testified that he occasionally tickled his daughters and the victim, but that he never touched the victim inappropriately. After the jury returned a verdict of guilty as to both charges, the court scheduled a date for sentencing. During the period of time between the verdict and the sentencing, defense counsel provided a number of letters to the court and to the state's attorney on behalf of the defendant. One of the letters, which had been provided only to the state's attorney, was handwritten in Spanish by the defendant.²

At the beginning of the sentencing proceeding, defense counsel stated that he had provided the court, through the clerk's office, with several letters in English that were either handwritten or typed. He further stated that he had received two additional letters that were handwritten in Spanish. Defense counsel explainedthat, although he had given copies of those letters to the state's attorney, he had removed the letters in Spanish from the submission to the court because they had not been translated into English, and he did not want "to burden" the court with "something that was incomprehensible."

Defense counsel then represented to the court that he had just that day discerned that one of the handwritten letters in Spanish had been signed by the defendant. He reported that when he made that discovery, he asked the interpreter to translate the contents of the letter, and that he now was making the following request of the court: "[The defendant] wishes not to present that letter to Your Honor, and instead to speak to the best of his ability from his mind and his heart to Your Honor today . . . ." The court interrupted defense counsel, stating that it generally gave the state's attorney the initial opportunity to make a presentation with respect to sentencing.

The state's attorney then proceeded to tell the court that he was "shocked" by the defendant's letter, which he earlier had translated by a different interpreter as soon as he received it. He read certain portions of the letter into the record³ and concluded with the following remarks: "The defendant took this case to trial, forced this child of tender years to testify about a horrific act that was perpetrated upon her, subjected the child to cross-examination when all the while he knew what the lie detector knew. He . . . knew what [the mother] knew and, essentially and most importantly, he knew what [the victim] knew. . . . He now admits that his denials on the stand were perjury. . . . He admits that he's a liar. And, mainly, Your Honor, as [the victim] testified, he admits that he's a child molester and a sex offender." The state's attorney requested that the court sentence the defendant to twenty-five years incarceration, execution suspended after twelve years, and ten years probation.⁴

In response to the remarks of the state's attorney, defense counsel stated: "I want to say for the record sake that I gave the letter to [the state's attorney] yesterday, fair and square. There's no claim otherwise. I gave him the letter. And I'll also say for the record sake that I didn't know what the letter said. And as a matter of fact, I didn't even know who the letter was from. And I believe there is a second handwritten letter in the packet because my office had put [the] packages together. And the only reason that those two handwritten Spanish language letters were not included in Your Honor's package is that I was embarrassed to give upon the court letters that had not been translated. I thought that was an unfair indulgence. Not that I didn't care about unfairly and, you know, burdening the state with these letters; I just didn't remove them from him."⁵

Defense counsel then told the court that he met withthe defendant after the interpreter translated the contents of the letter, and he asked the defendant if he now was admitting to the offenses. According to defense counsel, the defendant looked at him "quizzically," and he "explained to me that the reason he admitted it in this letter that was intended for Your Honor is that . . . some of the men in the jail told him that if you don't admit what you are convicted of, the judge will give you a harsher sentence." Defense counsel said that the defendant "wrote the letter and accepted responsibility for something that he still professes he did not do, because of jailhouse advice that this was the only way to try and get leniency from the judge. . . . [T]he reason he wrote this letter to you is bad jailhouse advice. And I'm embarrassed. I'm ashamed that he took jailhouse advice over mine." After offering the court what he considered to be mitigating factors, defense counsel requested that the court sentence the defendant to twenty years incarceration, execution suspended after the mandatory minimum of five years, and ten years probation.

The defendant's wife and daughter, in their brief remarks to the court, asked for leniency on behalf of the defendant. At that point, the defendant exercised his right of allocution. After thanking the court for allowing him to speak "from the bottom of my heart," the defendant made the following statement: "Everything that I wrote in the letter to you, it was not my thoughts and my ideas, but—a lot of people in jail make comments and say things. That when you go in front of the judge and you don't accept your guilt, then the judge turns very severe to you—very harsh to you. Because when the judge sees that you have like an attitude and you don't accept guilt, then the judge is very harsh to you. That was my motivation when I wrote the letter. Not because I felt in my heart that I was guilty. That's all, Your Honor."

In imposing the defendant's sentence, the court made the following remarks: "I'm going to start with the letter that exploded out of the lockup today. The prosecutor expressed quite righteous indignation, as he had every right to do. But there are some comments that I do have to address that the prosecutor I think made and make it clear where this court is coming from. Mendacity, lying on the part of a defendant, may not and will not be used to enhance any punishment. While the prosecutor is correct that the victim and her family had to go through a trial, it is the absolute constitutional right of any defendant, no matter how strong the evidence may be arrayed against him or her, to enter a plea of not guilty and take the case to trial. So the fact that the victim had to testify and go through a trial [and] perhaps suffer additional trauma as a result will not be used to enhance or increase any punishment for the offenses for which this defendant stands convicted."

After a few additional comments, the court returned to the subject of the defendant's letter. The court stated: "And without making any sort of determination as to whether the letter that was presented to this court is true or not, what is clear is that you [the defendant] had no hesitation to lie. Because the letter and your testimony are at complete odds of each other, either you lied on the witness stand or you lied in the letter. So your ability to be honest is in severe doubt here. And while I cannot and will not use your lying to enhance the punishment, I most certainly am free to use it when assessing the credibility of the things that you have told this court. And that has had a very negative effect." The court imposed a total effective sentence of twenty-five years incarceration, execution suspended after ten years, followed by ten years probation with...