State v. Joseph V.
| Decision Date | 13 December 2022 |
| Docket Number | SC 20504 |
| Citation | 345 Conn. 516,285 A.3d 1018 |
| Parties | STATE of Connecticut v. JOSEPH V. |
| Court | Connecticut Supreme Court |
Megan L. Wade, assigned counsel, with whom was James P. Sexton, assigned counsel, for the appellant (defendant).
Timothy F. Costello, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, Amy L. Sedensky and Don E. Therkildsen, Jr., senior assistant state's attorneys, and Jennifer F. Miller, former assistant state's attorney, for the appellee (state).
McDonald, D'Auria, Mullins, Kahn and Ecker, Js.
D'AURIA, J.
Today, in State v. Douglas C ., 345 Conn. 421, ––– A.3d –––– (2022), we held that a single count of an information that charges a defendant with a single statutory violation is duplicitous when evidence at trial supports multiple, separate incidents of conduct, each of which could independently establish a violation of the charged statute. In the absence of a specific unanimity instruction to the jury or a bill of particulars, such a count violates a defendant's constitutional right to jury unanimity and requires the reversal of the judgment of conviction if it creates the risk that the defendant's conviction occurred as the result of different jurors concluding that the defendant committed different criminal acts.
We now must apply our holding in Douglas C . to the present case in which the defendant, Joseph V., appeals from the judgment of the Appellate Court, which affirmed the trial court's judgment of conviction, rendered following a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2),1 risk of injury to a child in violation of General Statutes § 53-21 (a) (2),2 and conspiracy to commit risk of injury to a child in violation of § 53-21 (a) (2) and General Statutes § 53a-48 (a). The defendant claims that each count was duplicitous because each count charged him with a single violation of the underlying statute despite evidence at trial of multiple, separate incidents of conduct, each of which could establish a violation of the statute, thus creating the possibility that the jury found him guilty without having unanimously agreed on which incident occurred. As a result, he argues that the trial court's failure to either grant his request for a bill of particulars or a specific unanimity instruction violated his federal constitutional right to jury unanimity. We agree with the defendant as to the sexual assault count but disagree with him as to the risk of injury and conspiracy counts. Accordingly, we reverse in part the Appellate Court's judgment and remand the case to that court with direction to remand the case to the trial court for a new trial on the sexual assault count.
The Appellate Court's opinion contains a detailed discussion of the facts that the jury reasonably could have found, along with the procedural history of this case, which we summarize briefly. When the victim was four or five years of age, his half brother, T, began frequently abusing him in a sexual manner. State v. Joseph V ., 196 Conn. App. 712, 716, 230 A.3d 644 (2020). In 2006, after the abuse by T had begun, T and the victim's father moved to a new residence, while the victim and his mother continued to reside together, although the victim would have overnight visits at his father's new residence. Id. T's abuse of the victim continued at the father's new residence. Id. Both prior to and following the time that the victim's father and T moved to the new residence, the defendant, a first cousin of both T and the victim, had a close relationship with T, including an ongoing sexual relationship. Id., at 715, 717, 230 A.3d 644. After the victim's father and T moved to the new residence, the defendant, when he was fifteen years old, began to sexually assault the victim. Id., at 717, 230 A.3d 644. This abuse often involved simultaneous sexual abuse of the victim by T and occurred until the victim was ten years old. Id.
When the victim was thirteen, he revealed the sexual abuse in digital correspondence to The Trevor Project, a California based organization. Id., at 719, 230 A.3d 644. After he did not receive an immediate response, the victim used an instant messaging feature on The Trevor Project's website to speak with a counselor. Id. During this instant messaging conversation, the victim again revealed the sexual abuse by T and the defendant. Id.
The counselor at The Trevor Project, as required by law, reported the victim's allegations of sexual assault to the Los Angeles County Department of Children and Family Services, which, in turn, contacted the police in the Connecticut municipality in which the victim resided. Id., at 720, 230 A.3d 644. In response, the police visited the residence of the victim and his mother. Id. The victim told the police about the alleged sexual assault by T and the defendant, and the defendant was then arrested.3 Id.
The state initially charged the defendant with two counts of sexual assault in the first degree, one count of risk of injury to a child, and one count of conspiracy to commit risk of injury to a child. Id., at 721 and n.9, 230 A.3d 644. The defendant's criminal trial on these four counts ended in a mistrial. See id., at 721 n.8, 230 A.3d 644. After the mistrial, the defendant filed a motion for a bill of particulars, seeking to compel the state to allege within the charging instrument additional information with respect to each charge. Id., at 721–22, 230 A.3d 644. In response, the state filed a substitute information (the operative information at the time of the defendant's second trial), limited to one count of sexual assault in the first degree, one count of risk of injury to a child, and one count of conspiracy to commit risk of injury to a child. Id., at 722 and n.12, 230 A.3d 644.
The trial court then heard argument on the defendant's motion for a bill of particulars. Id., at 722, 230 A.3d 644. Defense counsel argued that, based on the evidence offered at the prior trial, the defense anticipated that there would be testimony regarding multiple, separate incidents of abuse, each of which could constitute a separate violation of the statutes at issue. Id., at 722–23, 230 A.3d 644. As a result, she asserted, there was the potential "risk that one or more jurors could reach a guilty verdict with respect to a count on the basis of their findings with respect to an incident of abuse proven by the state, and one or more jurors could reach a guilty verdict on the same count, but on the basis of their findings with respect to a different incident of abuse proven by the state." (Emphasis omitted.) Id., at 723, 230 A.3d 644. Defense counsel stated that, if the trial court denied the motion for a bill of particulars, she would request that the court give the jury a specific unanimity instruction. Id., at 724, 230 A.3d 644. The prosecutor responded that no concern about unanimity existed because he expected the defense to argue generally that the victim was not credible and, therefore, that the state had not met its burden of proof. Id. The trial court agreed with the prosecutor and denied the defendant's motion, ruling that, before returning a guilty verdict, the jury was required only to unanimously agree on whether the defendant had engaged in the type of conduct proscribed by the statutes during the time frame alleged. Id., at 724–25, 230 A.3d 644.
At trial, the victim testified about three distinct incidents of abuse by the defendant. See id., at 717 n.3, 230 A.3d 644. T testified about an additional distinct incident of abuse of the victim by the defendant during which T was present but did not participate. Id., at 718 and n.5, 230 A.3d 644. 4 Id., at 717 n.3, 230 A.3d 644.
As a result of this testimony, defense counsel requested that the trial court give the jury a specific unanimity instruction as to the charge of sexual assault in the first degree, arguing that, without this instruction, the count was duplicitous and, thus, infringed on the defendant's right to jury unanimity. Id., at 724–25, 230 A.3d 644. Relying on the rationale set forth in its prior ruling, the trial court declined defense counsel's request. Id., at 726–27, 230 A.3d 644. The following day, outside the presence of the jury, defense counsel renewed her request for a specific unanimity instruction, clarifying that the request applied to all three counts. Id., at 727, 230 A.3d 644. The trial court declined to give the requested charge. Id., at 728, 230 A.3d 644.
The jury returned a guilty verdict on all three counts. Id., at 715, 230 A.3d 644. The trial court sentenced the defendant to a total effective term of twenty years of incarceration, execution suspended after ten years, followed by ten years of probation with special conditions, including lifetime inclusion on the state's sex offender registry. Id., at 715 n.1, 230 A.3d 644.
The defendant appealed to the Appellate Court, claiming that the trial court improperly had denied his request for a bill of particulars and/or a specific unanimity jury instruction because the three counts were duplicitous, thereby violating his federal constitutional right to jury unanimity. Id., at 730–31, 230 A.3d 644. The Appellate Court affirmed the trial court's judgment; id., at 763, 230 A.3d 644 ; explaining that "whether the state's substitute information posed a risk that the jurors may not...
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