State v. Michael J.
| Decision Date | 05 July 2005 |
| Docket Number | No. 17229.,17229. |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. MICHAEL J. |
Elizabeth M. Inkster, senior assistant public defender, with whom were Mary Miller Haselkamp, senior assistant public defender, and, on the brief, E. Paul Haringa, former assistant public defender, for the appellant (defendant).
Timothy J. Sugrue, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Maxine Wilensky, senior assistant state's attorney, for the appellee (state).
BORDEN, NORCOTT, KATZ, VERTEFEUILLE and ZARELLA, Js.
The defendant, Michael J.,1 appeals2 from the trial court's denial of his motion to dismiss the criminal charges pending against him in connection with his alleged sexual abuse of C, his eleven year old daughter. The trial on those charges ended in a mistrial after C testified, on direct examination by the state, about certain incidents of the defendant's uncharged misconduct that were not specified in the bill of particulars or the amended information. The defendant thereafter moved to dismiss the charges, claiming that the mistrial was caused by egregious prosecutorial misconduct and, therefore, that a retrial on those charges would violate his right to be free from double jeopardy, as guaranteed by the United States constitution and the constitution of Connecticut. On appeal from the trial court's denial of that motion, the defendant claims that the court: (1) improperly denied his request for an evidentiary hearing that would have allowed him to develop a factual record of prosecutorial misconduct in support of his motion to dismiss; (2) erroneously found that the assistant state's attorney (prosecutor) did not intend to provoke him into moving for a mistrial when she elicited inadmissible testimony from C and, on the basis of that finding, improperly concluded that a retrial on the charges would not violate his double jeopardy rights under the United States constitution; and (3) improperly rejected his claim that the prohibition against double jeopardy that is implied in the Connecticut constitution provides him with broader protection than that afforded by the United States constitution. We affirm the trial court's denial of the defendant's motion to dismiss.
The record reveals the following facts and procedural history. The defendant was arrested on August 22, 2000, pursuant to a warrant issued in connection with C's allegations that the defendant had sexually abused her in November and December of 1998. After the state charged the defendant with sexual assault, risk of injury to a child and other crimes, he requested a bill of particulars, and, in response to that request, the state filed an amended long form information on January 9, 2003, that contained four counts. The first count alleged that the defendant had committed sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1)(B), when, "on or about [November 27], 1998, in the area of Fountain Street, [New Haven] the [defendant] compelled his then eleven year old daughter to submit to sexual contact (by placing her hand on his penis and masturbating him) by threatening to hit her, which reasonably caused her to fear physical injury...." In count two, the state alleged that, "on or about [November 27], 1998, in the area of Fountain Street, the [defendant] subjected his then eleven year old daughter to have contact with his intimate parts, in a sexual and indecent manner likely to impair her health or morals ... in violation of [General Statutes (Rev. to 1997) § ]53-21(2)3...." Count three charged the defendant with sexual assault in the first degree in violation of General Statutes (Rev. to 1997) § 53a-70 (a)(2), alleging that, "on diverse dates between November, 1998, and December, 1998, in the area of Whalley Avenue, [New Haven] the [defendant] engaged in sexual intercourse (cunnilingus) with his then eleven year old daughter...." Finally, the state alleged in count four that the defendant, "on diverse dates between November, 1998, and December, 1998, in the area of Whalley Avenue ... had contact (by means of cunnilingus) with the intimate parts of his then eleven year old daughter, in a sexual and indecent manner likely to impair her health or morals ... in violation of [§] 53-21(2)...."
The defendant thereafter filed a motion in limine, requesting that the court preclude the state from introducing evidence of any prior acts of misconduct by the defendant that were not specified in the bill of particulars.4 The court granted that motion on the same day that the defendant's trial commenced. In its ruling, the court explained that "the state is restricted to the allegations in the operative information which consists of ... four counts and is dated January 9, 2003." The court further observed that the allegations make clear that the charges against the defendant culminated from two incidents, specifically, the alleged incident involving masturbation that took place on Fountain Street and the alleged incident involving cunnilingus that occurred subsequently on Whalley Avenue.
The jury thereafter was sworn, and the state called C as its first witness. C first testified that, at the time of the alleged abuse, she was living with her paternal grandmother but had visited the defendant during weekends at his apartment on Fountain Street. She stated that, in late November, 1998, during one of these visits, the defendant called her into a bedroom of his apartment and offered her $10 if she would "masturbate him." C explained to the jury that she complied with the defendant's request because other people had told her that the defendant had beaten her and her brothers when they were younger, and, therefore, she feared him.
C then proceeded to describe the sexual abuse that allegedly had occurred thereafter on Whalley Avenue. She testified that the defendant had picked her up at her grandmother's house to take her shopping and to see a physician. She stated that, after they had done some shopping, the defendant took her to a motel on Whalley Avenue where he ordered her to take off her clothes and lie on the bed. The prosecutor then inquired of C whether the defendant had said anything to her. C responded that the defendant had "told [her] to masturbate him like [she] did the first time." The prosecutor asked additional, follow-up questions regarding the masturbation incident that occurred at the motel, which C answered. C then testified that the defendant had told her to open her legs and, when she did so, he put his tongue in her vagina and moved it in a "side to side" motion. After she described that act of cunnilingus, the prosecutor asked C what had happened next. C responded that the defendant had laid on top of her. A colloquy then ensued between the prosecutor and C in which it was revealed that the defendant allegedly had committed other acts of sexual abuse against C while they were at the motel. Specifically, in response to questions asked by the prosecutor, C recounted that the defendant had rubbed his penis against her while she was lying on the bed facing him and then had turned her over on her stomach, laid on her back and continued to massage her with his penis. C also testified that the defendant had her kneel down while he rubbed his penis against her buttocks.
The court thereafter adjourned for the luncheon recess. During that recess, the defendant filed a motion for a mistrial, claiming that the state had failed to provide him with certain exculpatory evidence. In support of that motion, the defendant alleged that: Upon receipt of the defendant's motion, the court excused the jury for the remainder of the day.
The following day, the trial court conducted a hearing on the defendant's motion. At that hearing, defense counsel contended that C's testimony regarding the alleged sexual acts at the motel other than the cunnilingus incident, and the defendant's purported history of beating C and her brothers, concerned prior acts of uncharged misconduct. Defense counsel further contended that the prosecutor elicited C's testimony in contravention of the court's earlier ruling on the defendant's motion in limine. The prosecutor responded that she had no prior knowledge of the additional sexual allegations to which C had testified, other than that the defendant allegedly had "flipped [C] over on her stomach and laid on her back," an act that the prosecutor viewed as an integral part of the cunnilingus incident.5 The prosecutor likewise stated that it was "news to [her]" that C believed that the defendant had beaten her and her brothers when they were younger.6
The court granted the defendant's motion for a mistrial, concluding that C had testified about incidents of sexual abuse that were not alleged in the information. The court reasoned that such testimony was prejudicial to the defendant and that its prejudicial impact could not be alleviated through a curative instruction. In its ruling, however, the court stated that
The defendant subsequently filed a motion to dismiss the charges against him, claiming, inter alia, that, by virtue of the state's "deliberate and...
To continue reading
Request your trial
-
State v. Hearl, AC 39463
...state constitution does not afford greater protection than that afforded by its federal counterpart. See, e.g., State v. Michael J ., 274 Conn. 321, 354, 875 A.2d 510 (2005) ("Connecticut appellate courts never have held that the double jeopardy guarantees implied in the state constitution ......
-
State v. Burnell, No. 18139.
...by our constitutional forebears." (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Michael J., 274 Conn. 321, 350-51, 875 A.2d 510 (2005). Accordingly, we conclude that the defendant's state constitutional claim lacks merit. The judgment is affirmed. In this o......
-
Weinstein v. Weinstein
...the dissolution trial, and we are left with the "definite and firm conviction" that a mistake has been made.16 See State v. Michael J., 274 Conn. 321, 346, 875 A.2d 510 (2005) ("[a] finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when alth......
-
State v. Kono
...interpreted their state constitutions to provide less protection than the federal constitution. See, e.g., State v. Michael J ., 274 Conn. 321, 351, 875 A.2d 510 (2005) (noting that Connecticut constitution provided less protection against double jeopardy until United States Supreme Court a......
-
2005 Connecticut Appellate Review
...reconsideration en banc granted (2005). 30 State v. D'Antonio, 274 Conn. 658,718, 877 A.2d 696 (2005) (en banc). 31 State v. Michael J., 274 Conn. 321, 361, 875 A.2d 510 (2005). 32 Location Realty, Inc. v. General Financial Services, Inc., 273 Conn. 766,781, 873 A.2d 163 (2005). 33 State v.......
-
Developments in Connecticut Criminal Law: 2005
...on each conviction to justify the different outcomes." Spencer, 275 Conn. at 181 (citing State v. Beaulieu, 274 Conn. at 480). 78 274 Conn. 321 (2005). 79 Id. at 324-331. The seminal federal and state cases on that proposition are Oregon v. Kennedy, 456 U.S. 667, 102 S. Ct. 2083, 72 L. Ed. ......