State v. Michael D.
| Decision Date | 07 October 2014 |
| Docket Number | No. 34624.,34624. |
| Citation | 153 Conn.App. 296,101 A.3d 298 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. MICHAEL D. |
Alice Osedach, assistant public defender, with whom, on the brief, was David Norman, certified legal intern, for the appellant (defendant).
Timothy F. Costello, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and John P. Doyle, Jr., senior assistant state's attorney, for the appellee (state).
BEACH, BEAR and SHELDON, Js.**
The defendant, Michael D., appeals from the judgment of conviction rendered against him following a jury trial on two counts of risk of injury to a child, one in violation of subsection (1), and the other in violation of subsection (2), of General Statutes (Rev. to 2001) § 53–21.1 On appeal, the defendant claims that the trial court erred by: (1) denying his motion to suppress the results of DNA testing of a suspected semen stain on a piece of the victim's clothing, which his ex-wife, the victim's mother, had turned over to the police several years after finding it hidden in his vehicle; (2) denying his motion in limine to preclude the introduction of a pornographic magazine that his ex-wife had also turned over to the police after finding it hidden, along with the victim's stained clothing, in his vehicle; and (3) allowing the case to proceed to trial and verdict on the state's duplicitous substitute information, thereby allegedly violating his constitutional right to a unanimous jury verdict. We reject each of the defendant's claims, and thus affirm the judgment of the trial court.
The following procedural history and facts are relevant to our resolution of the foregoing issues. The defendant and Ann P. were married in December, 1999. At the time of their marriage, Ann P. had a six year old daughter from a previous relationship, the victim. From 1999 until 2005, the defendant lived with his wife and the victim in Meriden. The state alleged that the defendant sexually assaulted the victim on three separate occasions between 2001 and 2003. The victim testified that the assaults had taken place at intervals of approximately one year, which she said she could recall on the basis of the passage of her birthdays.
The first incident allegedly occurred in 2001, when the victim was seven years old. She testified at trial that, on that occasion, the defendant entered her bedroom late at night, removed her pajamas and her underwear, put her in one of her dresses and applied makeup to her face using a lipstick she kept in her room for play. The defendant then placed her in her bed and began touching her vagina. The defendant ultimately penetrated her vagina digitally, causing her pain, then left the bedroom after warning her not to tell her mother what he had done. After he left the bedroom, the victim took off the dress and hung it up, then washed the makeup off her face with a napkin in the bathroom.
The second incident allegedly occurred in 2002, when the victim was eight years old. She testified that on that occasion, the defendant again entered her bedroom late at night, removed her pajamas and underwear, and dressed her in a different dress from her wardrobe. Then, she recalled, he removed his own shirt and shoes, and kissed her up and down her body before performing cunnilingus on her. The victim testified that when she struggled to fight off the defendant and tried to hit him, he covered her mouth with his hand and pinned back her arm.
The third incident allegedly occurred in 2003, when the victim was nine years old. She testified that this incident also occurred in her bedroom late at night. This time, however, the defendant, who already was undressed when she first saw him, did not dress her up or put makeup on her. Instead, he immediately removed her clothing, including her underwear, and attempted to force her to submit to penile-vaginal intercourse with him. She testified that the defendant's “penis was touching [her vagina] and he was pushing....” The defendant was able partially to insert his penis into her vagina. The victim recalled that, in an attempt to make the defendant stop, she kicked over an object in her room. The defendant thereafter left her bedroom.
In October, 2004, Ann P. became suspicious that the defendant was having an affair. Believing that she might find evidence of her husband's suspected infidelity, Ann P. searched the vehicle the defendant regularly drove, a quad cab vehicle she had purchased prior to the marriage, to which a second key was kept in the house.2 Secreted in a small storage space behind the rear row of seats in the vehicle she found a plastic bag. Upon examining the contents of the bag, she discovered that it contained several articles of her daughter's outgrown clothing that she had previously set aside to take to Goodwill and two pornographic magazines: an unnamed adult fetish magazine and another magazine entitled “Barely Legal,” in which young females were depicted in sexually suggestive settings and poses. Sensing that something was “really wrong,” Ann P. took the bag out of the vehicle and hid it in her home where she thought the children would not find it. At some point, she went through the bag and discovered that some of her daughter's clothing felt “stiff” to the touch, which she attributed to the possible presence of semen. Shortly after discovering the bag and its contents, Ann P. filed for divorce. The divorce was finalized in February, 2005.
In the years following the divorce, Ann P. occasionally asked her daughter “in a roundabout way” whether “anybody [had] ever done anything” inappropriate to her. The victim did not disclose the alleged abuse to her mother until November, 2008, when they started discussing the possibility of her mother dating again. She disclosed at that time that the defendant had sexually assaulted her.
Shortly thereafter, Ann P. and her daughter filed a report with a school resource officer assigned to her daughter's school, who referred them to Detective Hector Cardona of the Meriden Police Department. Ann P. accompanied her daughter to the police station to report the alleged abuse and her own earlier discovery of the bag and its contents in the defendant's vehicle. At the request of the investigating officers, Ann P. retrieved the bag from her home and turned it over to the police. Detective Cardona testified that he observed that one article of clothing in the bag had a “substance” on it that appeared “to be semen.” Thereafter, the defendant was interviewed by the police. When the defendant was asked about the suspected semen stains on the victim's clothing, he told police that Ann P. had occasionally masturbated him onto clothing. He denied the victim's allegations of sexual assault and consented to giving a sample of his DNA by the taking of a buccal swab.
The defendant was arrested on the basis of the previously described evidence and the victim's statement to the police.3 After a jury trial, the defendant was found guilty of two counts of risk of injury to a child. This appeal followed. Additional facts will be set forth as necessary.
The police subsequently sent the clothing with the suspected semen stain to the state forensic science laboratory for DNA analysis and testing. Testing on eight articles of clothing revealed the presence of the defendant's semen on one item of the victim's clothing: a pair of blue silk shorts, size six/seven.
Prior to trial, the defendant filed a motion to suppress the results of the DNA test. The defendant also filed a motion in limine to preclude evidence of the two pornographic magazines that Ann P. had found together with the victim's semen stained clothing in the bag in his vehicle. Following a hearing on the motions, the trial court denied the motion to suppress the results of the DNA testing. The court also denied the defendant's motion in limine to preclude evidence of his possession of the “Barely Legal” magazine that had been found together with the semen stained clothing.
Prior to trial, on January 13, 2012, the state filed a substitute information against the defendant, charging him as follows: in count one, with sexual assault in the first degree in violation of General Statutes § 53a–70 ; in count two, with risk of injury to a child in violation of § 53–21(2) ; and in count three, with risk of injury to a child in violation of § 53–21(1). Each such charge was based upon the defendant's alleged conduct in all three of the reported incidents that had led to his arrest. The defendant later was tried on these charges before a jury, which acquitted him of sexual assault in the first degree but found him guilty of both counts of risk of injury to a child. The trial court thereafter rendered judgment accordingly, sentencing the defendant to a total effective term of twenty years of incarceration, execution suspended after fourteen years, followed by fifteen years of probation, broken down as follows: on count two, on the charge of risk of injury to a child in violation of § 53–21(2), ten years of incarceration, execution suspended after seven years, followed by three years of probation; and on count three § 53–21(1), a term of ten years of incarceration, execution suspended after seven years, followed by fifteen years of probation, to be served consecutively to the sentence on count two. The defendant appeals from that judgment. Additional facts will be set forth as necessary to review the defendant's claims.
The defendant first claims that the trial court improperly denied his motion to suppress the results of DNA testing performed on the victim's blue silk shorts which his ex-wife had found hidden in his vehicle and turned over to the police. Specifically, the defendant argues that his “expectation of privacy in the clothing items in his possession was manifestly clear,” and therefore that the warrantless DNA testing of the shorts was unlawful under article first, ...
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...of privacy is personal to the party seeking to invoke it, and thus cannot be left to the court's speculation." State v. Michael D., 153 Conn. App. 296, 310, 101 A.3d 298, cert. denied, 314 Conn. 951, 103 A.3d 978 (2014).Subjective Expectation of Privacy To evaluate whether a defendant has d......
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