State v. Morales

• Decision Date: 07 December 1993
• Docket Number: No. 11565,11565
• Citation: 634 A.2d 1193,33 Conn.App. 184
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Roberto MORALES.

Page 1193

634 A.2d 1193

33 Conn.App. 184

STATE of Connecticut v. Roberto MORALES.

No. 11565.

Appellate Court of Connecticut.

Argued Sept. 28, 1993.

Decided Dec. 7, 1993.

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

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

Before FOTI, LAVERY and HEIMAN, JJ.

HEIMAN, Judge.

The defendant appeals 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 On appeal, the defendant asserts 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he was deprived of his right to due process by the prosecution's use of evidence from a previous plea bargain that was withdrawn. We affirm the judgment of the trial court.

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. ⁴

I

The defendant first asserts that the trial court improperly denied his motion to dismiss for lack of a speedy trial. We decline to afford review to this claim because it was not properly preserved before the trial court.

The following additional facts are necessary for a proper resolution of this issue. On November 20, 1991, the defendant filed a motion for a speedy trial pursuant to General Statutes § 54-82m (thirty day motion). ⁵ The trial court granted the motion on November 27, 1991. On December 17, 1991, the defendant entered an Alford ⁶ plea of guilty to a charge of robbery in the second degree in violation of General Statutes § 53a-135(a)(2). ⁷ The terms of the plea bargain included a provision that the agreement could be withdrawn if the defendant was known by an alias or had a criminal record. On January 17, 1992, the guilty plea was vacated because the defendant was found to have an alias, to have prior convictions, and to be an escapee. His real name was Angel Penja. The case was then scheduled for trial no more than sixty days from that date. The defendant, acting pro se, filed a motion for a speedy trial on January 29, 1992, pursuant to General Statutes § 54-82c (120 day motion). ⁸ On April 20, 1992, the defendant filed a motion to dismiss for lack of a speedy trial. He argued, on the basis of the thirty day motion, that he was entitled to a jury trial within thirty days of the January 17, 1992 hearing that vacated the guilty plea. The defendant's only claim to the trial court was that the thirty day motion was still effective despite the intervening plea bargain and plea withdrawal. The trial court denied the motion.

On appeal, the defendant now asserts that "the crux of [his] claim is the trial court's order on January 17, 1992, that his trial begin within sixty days. This order was a reasonable attempt by the court to enforce the defendant's speedy trial rights after the court rejected the defendant's plea. The court's order that the defendant be tried within sixty days of the rejection of his plea takes the instant case out of the statutory and Practice Book framework for the speedy trial of criminal cases. Once that order issued the question in this case became not whether the defendant was entitled by statute or court rule to be tried within that period, but instead whether the deadline could be ignored with im[p]unity. The defendant respectfully submits that the order could not simply be ignored and thus when that order was not rescinded or modified prior to its expiration, the defendant was entitled either to the speedy trial ordered or to relief for the violation of that order." (Emphasis in original.) This is not the claim advanced before the trial court.

"This court will not review issues of law that are raised for the first time on appeal." State v. Harvey, 27 Conn.App. 171, 186, 605 A.2d 563, cert. denied, 222 Conn. 907, 608 A.2d 693 (1992). "We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant's claim." Keating v. Glass Container Corporation, 197 Conn. 428, 431, 497 A.2d 763 (1985); Biggs v. Warden, 26 Conn.App. 52, 57, 597 A.2d 839, cert. denied, 221 Conn. 902, 600 A.2d 1029 (1991). A party must "advance his argument of [this issue] at trial in compliance with our rules...." (Citations omitted; internal quotation marks omitted.) State v. Duntz, 223 Conn. 207, 237, 613 A.2d 224 (1992). "Claims that were not distinctly raised at trial are not reviewable on appeal.... Accordingly, we decline to review [this claim]. We also note that [it does] not qualify for [State v.] Evans-[165 Conn. 61, 327 A.2d 576 (1973) ] Golding review, nor [does it] rise to the level of plain error. Practice Book § 4185...." ⁹ (Citations omitted.) State v. Pickles, 28 Conn.App. 283, 286-87, 610 A.2d 716 (1992).

II

The defendant next asserts that he was deprived of his right to due process and a fair trial under the state constitution by the unavailability of exculpatory evidence. We are not persuaded.

The following additional facts are necessary for a proper resolution of this issue. The defendant, after assaulting the victim, "wiped his penis off on [her] jacket." The victim gave the jacket to the police after the incident. Upon the victim's request, the police returned the jacket to her prior to the defendant's arrest. 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. The defendant claims that the failure by the Bridgeport police department to preserve the jacket violated his due process right, as guaranteed by article first, § 8, of the Connecticut constitution. ¹⁰

The defendant claims that the test for determining whether the state violated his state due process right is to determine " the reason for the unavailability of the evidence, the materiality of the evidence, the likelihood of mistaken interpretation [due to the absence of the evidence] by witnesses or the jury, and the prejudice to the defendant caused by the unavailability of the evidence...." (Citations omitted; internal quotation marks omitted.) State v. Gonzalez, 206 Conn. 213, 224-25, 537 A.2d 460 (1988). The United States Supreme Court has stated "that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988). The effect of Youngblood on the state constitutional test to determine whether the defendant's state due process right has been violated has never been fully explored by the courts of this state. Prior to the Youngblood decision, our courts applied a four-prong test to determine whether a prosecution...