State v. Jose G.

• Decision Date: 31 July 2007
• Docket Number: No. 24785.,24785.
• Citation: 929 A.2d 324,102 Conn.App. 748
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. JOSE G.<SMALL><SUP>1</SUP></SMALL>

929 A.2d 324

102 Conn.App. 748

STATE of Connecticut v. JOSE G.¹

No. 24785.

Appellate Court of Connecticut.

Argued October 11, 2006.

Decided July 31, 2007.

Daniel J. Krisch, special public defender, with whom were Michael S. Taylor, Hartford and, on the brief, Clarisse N. Thomas, legal intern, for the appellant (defendant).

Proloy K. Das, assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Michael A. Colombo, Jr., former deputy assistant state's attorney, for the appellee (state).

FLYNN, C.J., and SCHALLER and McLACHLAN, Js.

McLACHLAN, J.

The defendant, Jose G., appeals from the judgment of conviction, following a jury trial, 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 his then girl-friend, who was more than four months pregnant at the time.² On appeal, the defendant claims that (1) the trial court improperly admitted into evidence certain testimony from two witnesses regarding alleged incidents of uncharged sexual abuse he perpetrated against the victim and (2) the state engaged in a pattern of prosecutorial impropriety,³ which denied him a fair trial. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant's claims on appeal. In the very early morning hours of March 6, 2002, police officers on patrol 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),⁴ and a redacted version was read into evidence by the court clerk during the victim's testimony.

I

The defendant first claims that the court improperly admitted certain testimony from two witnesses regarding alleged incidents of uncharged sexual abuse he perpetrated against the victim. These two state's witnesses were J, a friend of the victim who picked her up from the police station on the night of the incident, and Stamford police Officer Sandra Conetta, who had contact with the victim on the night of the incident. J testified that the victim told her about two prior incidents when the defendant had sex with the victim against her will; the first occurred in October or November, 2001, and the second occurred approximately two weeks prior to the March 6, 2002 incident. Conetta testified that on the way back from the hospital on March 6, 2002, the victim told her about the second incident, stating that the defendant had broken into her house and forced himself on her sexually on that occasion.

In his main appellate brief, the defendant claims that the court improperly admitted the testimony of J and Conetta as constancy of accusation testimony.⁵ In the state's brief, it argues that this claim is not reviewable because the record is clear that the court admitted the testimony for impeachment and not as constancy of accusation testimony. In his reply brief, the defendant concedes that the court admitted the testimony for impeachment purposes, but he argues, nonetheless that it still was admitted improperly because it constituted extrinsic evidence on a collateral issue and was more prejudicial than probative.

On the issue of reviewability, the defendant argues that he did not have the opportunity to respond to the issue of impeachment until the court issued an articulation in January, 2006, after his main appellate brief was filed. The state argues that the defendant did not preserve the issue at trial and that his attempts to raise this issue for the first time in his reply brief are improper, and, as such, we should not review his claim.

During the state's direct examination of J, the defendant objected, solely on the ground that the question was leading, when the state sought to elicit testimony regarding statements the victim had made to her about prior sexual abuse. The state argued that the evidence was admissible as constancy of accusation testimony. After a voir dire examination of J, the court allowed the testimony.⁶

On May 9, 2005, the defendant filed a motion for articulation, requesting that the court articulate the basis for admitting the challenged testimony, as well as other evidence including expert testimony related to battered woman's syndrome, which the state had proffered at trial.⁷ The court denied that motion, and, on June 2, 2005, the defendant filed a motion for review with this court. On July 19, 2005, we granted the motion for review as to the ruling admitting expert testimony but denied it as to the other requests.

On September 22, 2005, 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 to admit evidence related to claims of uncharged misconduct against him. The defendant submitted his main appellate brief to this court on November 21, 2005. On January 3, 2006, the trial court issued a memorandum of decision on the admission of evidence related to claims of uncharged misconduct against the defendant. In that decision, the court indicated that the evidence was admitted as impeachment evidence of the victim's trial testimony.⁸ The state filed its appellate brief on May 10, 2006.

At oral argument before this court, the state argued that the reasoning for the trial court's ruling was not ambiguous and that the defendant should have briefed the impeachment issue in his main appellate brief. Without abandoning its position that the claim is not reviewable, the state requested permission to present a full written brief on the substantive merits of the issue. On January 16, 2007, we granted the state's request to file a supplemental brief, which the state filed on January 31, 2007.

"It is a well established principle that arguments cannot be raised for the first time in a reply brief.... Claims of error by an appellant must be raised in his original brief ... so that the issue as framed by him can be fully responded to by the appellee in its brief, and so that we can have the full benefit of that written argument. Although the function of the appellant's reply brief is to respond to the arguments and authority presented in the appellee's brief, that function does not include raising an entirely new claim of error." (Internal quotation marks omitted.) State v. Howard F., 86 Conn.App. 702, 708, 862 A.2d 331 (2004), cert. denied, 273 Conn. 924, 871 A.2d 1032 (2005).

Moreover, "[t]he standard for the preservation of a claim alleging an improper evidentiary ruling at trial is well settled. This court is not bound to consider claims of law not made at the trial.... In order to preserve an evidentiary ruling for review, trial counsel must object properly.... In objecting to evidence, counsel must properly articulate the basis of the objection so as to apprise the trial court of the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling.... Once counsel states the authority and ground of [the] objection, any appeal will be limited to the ground asserted....

"These requirements are not simply formalities. They serve to alert the trial court to potential error while there is still time for the court to act.... Assigning error to a court's evidentiary rulings on the basis of objections never raised at trial unfairly subjects the court and the opposing party to trial by ambush." (Internal quotation marks omitted.) State v. Calabrese, 279 Conn. 393, 408 n. 18, 902 A.2d 1044 (2006).

Here, the defendant's argument in his reply brief presents an entirely new claim of error, which the trial court had no opportunity to address at trial. Moreover, the defendant's general objections at trial were inadequate to preserve the issue properly for appellate review.⁹ Furthermore, in seeking our review of his claim, the defendant failed to request review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. See Practice Book § 60-5. "[W]here a defendant fails to...