State v. Morales

• Decision Date: 21 December 1995
• Docket Number: No. 11565,11565
• Citation: 667 A.2d 68,39 Conn.App. 617
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Roberto MORALES.

Page 68

667 A.2d 68

39 Conn.App. 617

STATE of Connecticut v. Roberto MORALES.

No. 11565.

Appellate Court of Connecticut.

Submitted Sept. 7, 1995.

Decided Oct. 31, 1995.

Certification Denied Dec. 21, 1995. ^*

Temmy Ann Pieszak, Assistant Public Defender, for appellant (defendant).

Donald A. Browne, State's Attorney, with whom, on the brief, was John Smriga, Assistant State's Attorney, for appellee (state).

Before FOTI, LAVERY and HEIMAN, JJ.

HEIMAN, Judge.

This matter is before us on remand from our Supreme Court. State v. Morales, 232 Conn. 707, 657 A.2d 585 (1995). The defendant originally appealed to this court from the judgment of conviction, rendered after a trial to the court, of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1), ¹ robbery in the first degree in violation of General Statutes § 53a-134(a)(3), ² and threatening in violation of General Statutes § 53a-62(a)(1). ³

In his original appeal to us, the defendant asserted that (1) the trial court improperly denied his motion to dismiss for lack of a speedy trial, (2) he was deprived of his right to due process and a fair trial under the state constitution by the unavailability of exculpatory evidence, and (3) he was deprived of his right to due process by the prosecution's use of evidence from a previous plea bargain that was withdrawn. State v. Morales, 33 Conn.App. 184, 186, 634 A.2d 1193 (1993). We resolved all of the issues raised by the appeal and affirmed the judgment of the trial court.

Our Supreme Court granted certification limited to the following issues concerning the defendant's claim that his right to due process was violated by the unavailability of potentially exculpatory evidence:

" '1. Did the Appellate Court properly conclude that under the circumstances of this case, the proper test for ruling on the defendant's motion to dismiss, under article first, § 8, of the Connecticut constitution, was the test articulated in Arizona v. Youngblood, [488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988) ]?

" '2. If the answer to question (1) is yes, did the Appellate Court properly conclude, under the circumstances of this case, that: (a) a motion to dismiss was a proper remedy for the alleged failure of the state to preserve potentially exculpatory evidence; and (b) a different standard would apply to a motion to suppress evidence based on the same conduct of the state?' " State v. Morales, 228 Conn. 928, 640 A.2d 116 (1994).

In answering those questions, our Supreme Court rejected our adherence to "the litmus test of bad faith on the part of the police, which the United States Supreme Court adopted under the federal constitution in Youngblood." State v. Morales, supra, 232 Conn. at 726, 657 A.2d 585. In lieu of that test, our Supreme Court held that "in determining whether a defendant has been afforded due process of law under the state constitution, the trial court must employ the Asherman balancing test, weighing the reasons for the unavailability of the evidence against the degree of prejudice to the accused. More specifically, the trial court must balance the totality of the circumstances surrounding the missing evidence, including the following factors: 'the materiality of the missing evidence, the likelihood of mistaken interpretation of it by witnesses or the jury, the reason for its nonavailability to the defense and the prejudice to the defendant caused by the unavailability of the evidence.' State v. Asherman, [193 Conn. 695, 724, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S.Ct. 1749, 84 L.Ed.2d 814 (1985) ]." State v. Morales, supra, 232 Conn. at 726-27, 657 A.2d 585.

Because we followed Youngblood, we did not, in the original appeal, address the claim of the defendant that the trial court had imperfectly applied the Asherman balancing test. Accordingly, having determined the proper test, the Supreme Court remanded the matter to us to determine whether the trial court properly applied the balancing test. Id., at 730, 657 A.2d 585.

"The trial court could reasonably have found the following facts. On December 30, 1990, the victim was at the Pembroke Grill on Pembroke Street in Bridgeport. She left the grill at approximately 11:45 p.m., walked down Pembroke Street and turned left onto East Main Street. While on East Main Street, she heard someone following her. She stopped at a phone booth and was approached by the defendant. The defendant, who had a Spanish accent, asked if she was calling the police. She said no and pretended to call her boyfriend. A person in a tow truck then pulled up next to the phone booth. The victim asked the driver to give her a ride because she believed the defendant was going to hurt her, but he refused, stating that the defendant was his relative. The driver and the defendant then began to talk to each other. Meanwhile, the victim began to walk down Seymour Street toward Kossuth Street. On Seymour Street, she again saw the defendant following her. She walked down Kossuth Street toward the thruway. When the victim reached an Interstate 95 underpass, the defendant grabbed her and punched her in the mouth. He then pulled out a knife, placed it at her neck and pulled her beneath the underpass and through a gate. The defendant pushed the victim down on her knees, told her not to move or say anything and to keep her head down or he would kill her. The defendant dropped the knife and told the victim to unbutton and unzip her pants. The defendant then pulled off her pants and underwear, got behind her and, while holding her around the neck, bit her 'on [the] butt.' The defendant then 'put his thing in [her] butt.' He bit her neck and jumped off of her while telling her to keep her head down or he would kill her, and he 'wiped his penis off on [the victim's] jacket.' The defendant then pulled off her necklaces and bracelet and walked away. The victim then walked down Stratford Avenue and stopped a car that she recognized as belonging to a friend. The friend drove the victim to the Bridgeport police station. The police called an ambulance that transported the victim to Park City Hospital for treatment. After treatment, she gave a statement to Detective Annie Osika about the incident and turned over her jacket to the police.

"In the spring of 1991, while a passenger on a bus, the victim saw the defendant standing on the corner of Stratford Avenue and East Main Street. She stayed on the bus for a few stops, then disembarked and called the police. The police transported the victim back to where she had seen the defendant. She identified him as her attacker, and he was arrested on March 11, 1991." State v. Morales, supra, 33 Conn.App. at 186-87, 634 A.2d 1193.

"On May 22, 1991, the trial court granted the defendant's motion for discovery and inspection of certain items. The motion requested the disclosure of 'exculpatory information and materials.' The jacket was unavailable at trial because the Bridgeport police had returned it to the victim prior to the defendant's arrest." Id., at 191, 634 A.2d 1193. At trial, the defendant moved to dismiss the charges against him because the Bridgeport police department had failed to preserve the victim's jacket as evidence. The trial court denied the defendant's motion to dismiss.

The defendant claims that his right to due process was violated because of the unavailability of the victim's jacket and, therefore, that his motion to dismiss should have been granted. In determining whether the defendant has been afforded due process of law under our state constitution, the trial court was required to apply the Asherman balancing test. State v. Morales, supra, 232 Conn. at 727, 657 A.2d 585. "In this case, the record is clear that the trial court, in deciding the defendant's motion to dismiss, attempted to apply a balancing test quite similar to the [Asherman test]." ⁴ Id., at 730, 657 A.2d 585. In his appeal to this court, the defendant argues that, although the trial court applied a balancing test, it did not apply that test correctly. Thus, in order to determine whether the defendant's right to due process has been violated, it is our task to review the trial court's application of the Asherman balancing test in its denial of the defendant's motion to dismiss. See id.

We begin our analysis by defining our scope of review. "Facts found by the trial court will not be disturbed unless the finding is clearly erroneous. Practice Book § 4061; State v. Torres, 197 Conn. 620, 625, 500 A.2d 1299 (1985). Conclusions drawn from those underlying facts must be legal and logical. State v. Lasher, 190 Conn. 259, 267, 460 A.2d 970 (1983)." State v. Geisler, 222 Conn. 672, 693, 610 A.2d 1225 (1992). Where the trial court examines an underlying set of facts and draws a legal conclusion from those facts, that legal conclusion is subject to plenary review by an appellate court. See Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 14, 664 A.2d 719 (1995); Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342 (1995); State v. Torres, 230 Conn. 372, 379, 645 A.2d 529 (1994).

Here, the trial court examined the underlying facts and applied the Asherman balancing test in ruling on the defendant's motion to dismiss. ⁵ "[W]hether those facts constituted a violation of the [defendant's right to due process] is a mixed determination of law and fact that requires the application of legal principles to the historical facts of the case.... Whether the historical facts as found by the [trial court] constituted a violation of the [defendant's right to due process] is subject to plenary review by this court, unfettered by the clearly erroneous standard." (Internal quotation marks omitted.) Davis v. Warden, 32 Conn.App. 296, 301, 629 A.2d 440, cert. denied, 227 Conn. 924, 632 A.2d 701 (1993); see also Copas v. Commissioner of Correction, 234 Conn. 139, 152-53, 662 A.2d 718 (1995). In our examination of the facts and the...