State v. Jose G.

• Decision Date: 10 February 2009
• Docket Number: No. 17973.,17973.
• Citation: 290 Conn. 331,963 A.2d 42
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. JOSE G.<SMALL><SUP>*</SUP></SMALL>

963 A.2d 42

290 Conn. 331

STATE of Connecticut v. JOSE G.^*

No. 17973.

Supreme Court of Connecticut.

Argued December 5, 2008.

Decided February 10, 2009.

Daniel J. Krisch, special public defender, with whom were Sandra M. Bouchard, legal intern, and, on the brief, Michael S. Taylor and Michael J. Nichols, legal intern, for the appellant (defendant).

Robin S. Schwartz, assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Michael Columbo, former deputy assistant state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, KATZ, PALMER and ZARELLA, Js.

KATZ, J.

The defendant, Jose G., appeals, upon our grant of certification, from the Appellate Court's judgment affirming the trial court's judgment of conviction of kidnapping in the second degree in violation of General Statutes § 53a-94, attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-70(a)(1), intimidating a witness in violation of General Statutes § 53a-151a, and assault in the third degree in violation of General Statutes § 53a-61(a)(1) in connection with a domestic incident involving the defendant's then girlfriend. The sole issue in this certified appeal is whether the Appellate Court improperly declined to review the defendant's claim that the trial court improperly had admitted into evidence certain testimony regarding prior incidents of uncharged sexual abuse that the defendant allegedly had perpetrated against the victim. The Appellate Court had declined to review his claim that the testimony constituted extrinsic evidence on a collateral matter and therefore improperly was admitted as impeachment evidence because: (1) the defendant was asserting a different claim of error than the ones he had raised at trial; and (2) he had raised that claim before the Appellate Court for the first time in his reply brief. State v Jose G., 102 Conn.App. 748, 756, 929 A.2d 324 (2007). We conclude that the defendant has asserted a different claim of error on appeal than the ones he had raised at trial, and, accordingly, his objections to the admission of the evidence on unrelated grounds were inadequate to preserve this issue for appellate review. We therefore do not consider whether the Appellate Court also properly declined to address the merits of the defendant's evidentiary claim because he had failed to raise that issue in his main appellate brief. Accordingly, we affirm the judgment.

The Appellate Court opinion sets forth the following undisputed facts and procedural history. "In the very early morning hours of March 6, 2002, police officers on patrol [in the city of Stamford] noticed a commotion occurring in the front seat of the defendant's van at an intersection. As the van turned in front of the officers, the passenger, who was the victim, opened the door, and it appeared that she was trying to jump out of the van and flag down the officers, but she was being held back by the defendant, who was driving the van. The police pulled over the van, and the victim stated that the defendant had assaulted her. The victim was brought to the police station where she signed a voluntary, sworn statement that contained allegations that the defendant had forced her into the van and had proceeded to kiss her very hard and put his hand down her pants, digitally penetrating her vagina with his finger against her will, while instructing her not to yell. According to the statement, the defendant also struck the victim in the face approximately three times and threatened to kill her. The statement contained accusations that the defendant had hit the victim on two prior occasions and had physically, mentally and sexually abused her previously. After completing the statement, the victim was taken to Stamford Hospital, where she was examined.

"At trial, the victim recanted the sworn statements she had made to the police on March 6, 2002, testifying, inter alia, that on the night of the incident, the defendant had not threatened her, restrained her or digitally penetrated her, and she denied that he had abused her in the past. When confronted with her prior sworn statement, the victim indicated that she disagreed with some of its contents. The prior statement was admitted into evidence substantively at trial pursuant to State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct 597, 93 L.Ed.2d 598 (1986),¹ and a redacted version was read into evidence by the court clerk during the victim's testimony." State v. Jose G., supra, 102 Conn.App. at 751-52, 929 A.2d 324.

The record discloses the following additional facts and procedural history pertinent to the question of whether the defendant preserved at trial the claim that he raises on appeal. After the victim had testified and recanted her earlier statement to the police, the state presented several witnesses to testify regarding, inter alia, statements the victim previously had made alleging prior incidents of sexual abuse the defendant had perpetrated against her. The first witness, whose testimony is not at issue in this appeal, was Stamford police officer Aaron Trew, who testified that, when he had interviewed the victim during the early morning hours following the March, 2006 attack, the victim told him that the defendant had sexually assaulted her two weeks earlier in Norwalk. The next witness was J, a friend of the victim who had picked her up from the police station on the night of the incident. J characterized the victim's relationship with the defendant as troubled and described an incident that J had observed during which the defendant argued with the victim, threw things in the house, brandished a knife and threatened to kill both the victim and himself. When the state asked J more specifically if the victim ever had confided in her regarding sexual abuse, the defendant objected on the ground that the question was leading. In response to the objection, the state claimed that the testimony regarding statements the victim had made to J about prior sexual abuse was admissible as constancy of accusation² testimony. The trial court overruled the objection. When the state attempted to question J to confirm the time frame of the allegations, the defendant again objected that the questions were "not specific enough" and that the state was leading the witness. The court excused the jury to allow a voir dire examination of J, after which the court concluded that it would allow J to testify that the victim had told her that the defendant had sexually assaulted the victim on two prior occasions.³ The court then stated to the defendant: "Your objection is noted if you wish." Before the jury returned, the trial court added: "The reason I'm allowing this in is because of this claim that the testimony the victim gave here in court ought to be disbelieved because of the statement she made earlier." The defendant raised no further objection and sought no further clarification. J then testified in accordance with her earlier testimony.

The state then called Stamford police officer Sandra Conetta, who had spoken with the victim on the night of the incident, and questioned her about the victim's disclosures regarding her history of victimization by the defendant. The defendant objected, claiming: "Your Honor. We've been over this.... Already did it again on a different witness." The court overruled the objection. Conetta then testified that, on the way back from the hospital on the day of the assault, the victim had told Conetta about a prior incident in which the defendant had broken into her house and forced himself on her sexually, to which the defendant objected, stating: "Hearsay." The trial court responded: "No, there's an issue that's been raised about the conflict between the victim's testimony in court, and the testimony and the statement that she gave outside. I am going to overrule the objection."

After these witnesses had testified as to the victim's past allegations of abuse, Evan Stark, an expert on battered women's syndrome, testified to explain why battered women commonly recant statements about having been abused. At the close of evidence, the trial court instructed the jury about evaluating the allegedly inconsistent testimony of the victim. First, the court explained that the jury could consider that alleged inconsistency when evaluating Stark's testimony. Then, consistent with State v. Whelan, supra, 200 Conn. at 743, 513 A.2d 86, the court explained to the jury that it could consider for substantive purposes the victim's prior sworn statement to the police.

Following his conviction, the defendant appealed from the judgment to the Appellate Court. Prior to filing his brief in the Appellate Court, the defendant filed a motion for articulation in the trial court, requesting that the court articulate the basis for admitting testimony from J and Conetta about the victim's previous complaints against the defendant of uncharged sexual assaults, as well as other evidence, including Stark's expert testimony related to battered woman's syndrome. In its response to the defendant's motion, the state did not object to the requested articulation, but did point to the portions of the transcript reflecting that the trial court had admitted the evidence to impeach the victim.⁴ The trial court denied the motion for articulation, and the defendant thereafter filed a motion for review. The Appellate Court granted the motion for review, but granted the relief requested therein only in so far as it ordered the trial court to articulate the basis of its ruling admitting Stark's expert testimony.

Pending the trial court's articulation to address Stark's testimony, the defendant filed a request, pursuant to Practice Book § 64-1, seeking a signed transcript or memorandum of decision from the trial court with respect, inter alia, to the court's ruling admitting the "constancy of accusation" testimony...