State v. Peloso
| Decision Date | 05 August 2008 |
| Docket Number | No. 27766.,27766. |
| Citation | 952 A.2d 825,109 Conn.App. 477 |
| Parties | STATE of Connecticut v. John R. PELOSO III. |
| Court | Connecticut Court of Appeals |
Hope C. Seeley, with whom were Benjamin B. Adams and, on the brief, Hubert J. Santos, Hartford, for the appellant (defendant).
Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were James E. Thomas, former state's attorney, and David L. Zagaja, senior assistant state's attorney, for the appellee (state).
DiPENTIMA, McLACHLAN and GRUENDEL, Js.
The defendant, John R. Peloso III, appeals from the judgment of conviction, rendered after a trial to the court, of assault in the second degree in violation of General Statutes § 53a-60(a)(4),1 delivery of a controlled substance in violation of General Statutes § 21a-277(b)2 and sexual assault in the third degree in violation of General Statutes § 53a-72a(a)(1)(A).3 On appeal, the defendant claims that the trial court (1) committed structural error by assuming the role of advocate on behalf of the state, (2) failed to maintain an appearance of impartiality during defense counsel's cross-examination of a witness, (3) improperly admitted certain evidence of prior misconduct and (4) violated his constitutional protection against double jeopardy by convicting and sentencing him multiple times for the same offense. We affirm the judgment of the trial court.
The court reasonably could have found the following facts. On August 27, 2004, at approximately 6 or 7 p.m., the victim4 met the defendant, with whom she had worked for more than six years and whom she regarded as a friend, for food and drinks at the Wood N' Tap restaurant in Hartford. After the victim and the defendant each had consumed a couple of alcoholic beverages and some food, they left the Wood N' Tap and drove to Tisane, a martini bar in West Hartford, where they each had another alcoholic drink and more food. Shortly after 10 p.m., the defendant and the victim left Tisane and drove in separate cars to Glastonbury, where they attended a party hosted by friends of the defendant. At the party, the victim consumed three or four more alcoholic beverages. Toward the end of their stay at the party, the defendant offered the victim a pill, which he stated would help her hangover for later that morning. The victim, who was scheduled to work later that morning, followed the defendant's advice and took the pill. At approximately 2 a.m., the defendant and the victim left the party together and drove in separate cars to the defendant's apartment in Glastonbury.
After arriving at the defendant's apartment, the victim and the defendant each consumed another alcoholic beverage. The victim then selected a movie, "Silence of the Lambs," from the defendant's DVD collection and lay on a sofa. She fell asleep shortly after the movie began.
At approximately 4 a.m., the defendant picked up the victim from the couch and started to carry her upstairs to the second floor of his apartment. As they reached the top of the stairs, the defendant set the victim down, and she woke up. The victim soon realized that she was not wearing any pants and quickly ran back down the stairs to find her missing clothes. She found her pants lying folded behind the sofa where she had been sleeping.5
After putting her clothes back on, the victim noticed a camera nearby. She began to recall the flashing of lights and the sound of a camera taking photographs while she had been lying on the sofa. Convinced that the defendant had taken photographs of her without her pants on, the victim demanded that the defendant give her the film inside the camera. After a brief discussion, the defendant opened the camera, exposing the film inside, and gave the victim the film from the camera and the film's casing. She left the apartment and called the police from her car.
Several Glastonbury police officers arrived a short time later. The officers detected a strong odor of alcohol on the victim's breath as she recounted her story, but she did not show any other signs of alcohol intoxication, such as difficulty moving or speaking. The victim gave the officers the film and casing that she had taken from the defendant.6
The victim was transported to Saint Francis Hospital and Medical Center. At the hospital, she submitted to an examination for signs of sexual assault and, at 9:15 a.m., gave blood and urine samples. The physical examination revealed no signs of an assault. During the examination, however, she recounted certain events, which she recalled in greater detail at trial. After falling asleep on the defendant's sofa, she felt as though she was drifting in and out of consciousness and, when she was conscious, felt "completely different," as though things that happened to her were "happening to someone else."7 She remembered that the defendant had removed some of her clothing and had taken photographs of her. She also remembered watching the defendant kissing her, fondling her breasts and penetrating her vagina with his fingers. The victim stated that it "felt good" in a "sick way" when the defendant was touching her with his hands, but not when he had kissed her.
Sometime before arriving at the hospital, the victim had taken two additional unidentified pills. The victim's urine sample revealed an alcohol level of 0.13 and the presence of methylene dioxy amphetamine (MDA), a controlled substance.8 Her blood sample revealed an alcohol level of 0.07 by weight and the presence of acetaminophen. No MDA was detected in the victim's blood sample. A subsequent search of the defendant's apartment, pursuant to a warrant, produced pill bottles containing residual amounts of MDA, methylene dioxy methamphetamine (MDMA) and other controlled substances.9
By a long form information dated March 22, 2006, the state charged the defendant, in seven counts, with (1) kidnapping in the first degree, (2) assault in the second degree, (3) delivery of a controlled substance, (4) two counts of sexual assault in the first degree, (5) sexual assault in the second degree and (6) sexual assault in the third degree. The defendant elected a trial to the court on all seven charges. Following the state's case-in-chief, the court granted the defendant's motion for a judgment of acquittal as to the first count, kidnapping in the first degree. After the state's rebuttal case, the court found the defendant guilty on the charges of assault in the second degree, delivery of a controlled substance and sexual assault in the third degree—counts two, three and seven, respectively. The court found the defendant not guilty of the remaining charges, counts four through six. One June 8, 2006, the court sentenced the defendant to a total effective term of twelve years imprisonment, execution suspended after eight years, followed by ten years probation. The defendant filed this appeal.
The defendant's first claim on appeal is that the court improperly interposed itself into the trial as an advocate on behalf of the state, thereby depriving him of his constitutional right to due process and a fair trial by an impartial finder of fact.10 Specifically, the defendant claims that after the defense had rested and the state had indicated it would not offer rebuttal testimony, the court committed structural error by improperly suggesting to the state who to call as a rebuttal witness and what information to solicit from that witness. In support of his claim, the defendant argues that the additional testimony assisted the state in meeting its burden of proving a material fact, namely, that he had delivered a controlled substance to the victim. In response, the state argues that the court, sitting as the finder of fact, properly made the suggestion to the state and that even if the suggestion was improper, any error was harmless. We agree with the state that the court's intervention was harmless.
The following facts are necessary to our resolution of the defendant's first claim. During its case-in-chief, the state called Mark Anderson, a chemist with the toxicology and controlled substances laboratory for the department of public safety (laboratory). Anderson testified that when the laboratory receives a blood or urine sample to be analyzed for the presence of a particular substance, he conducts two tests. The first is a presumptive test to determine whether that substance might be present in the sample. The presumptive test is followed by a second confirmatory test to identify positively the substance. Both the presumptive test and the confirmatory test revealed that the sample of the victim's urine taken at 9:15 a.m. on August 28, 2004, contained MDA, but no MDA was detectable in the sample of her blood taken at the same time. Neither the state nor the defendant elicited testimony from Anderson as to the sensitivity of equipment he used to detect the substances in the victim's blood and urine samples.
The state next called Robert Powers, the director of the laboratory. Powers testified as to the general effects, including the lethal effects, of MDA abuse. Powers also testified that the limit of detection11 of MDA in a urine sample, using the laboratory's equipment, is 100 nanograms per milliliter. Neither the state nor the defendant, however, elicited testimony from Powers as to the limit of detection of MDA in a sample of blood using the laboratory's equipment. Moreover, Powers could not opine, within a reasonable degree of scientific certainty, at what time the victim had ingested the MDA so that her urine sample would contain detectable levels of MDA but her blood sample would not.
Finally, the state called James O'Brien, who testified, as an expert in the field of pharmacology,12 as to the general effects of MDA. O'Brien opined, on the basis of the victim's description of her symptoms, that the victim was under the influence of MDA during the early morning hours of August 28, 2004. H...
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