State v. Saraceno, 5289

• Court: Connecticut Court of Appeals
• Writing for the Court: SPALLONE
• Citation: State v. Saraceno, 545 A.2d 1116, 15 Conn.App. 222 (Conn. App. 1988)
• Decision Date: 19 July 1988
• Docket Number: No. 5289,5289
• Parties: STATE of Connecticut v. Mario SARACENO.

Page 1116

545 A.2d 1116

15 Conn.App. 222

STATE of Connecticut v. Mario SARACENO.

No. 5289.

Appellate Court of Connecticut.

Argued Feb. 11, 1988.

Decided July 19, 1988.

Joseph A. Hourihan, West Hartford, with whom, on the brief, was Leslie Sheppard, Farmington, for appellant (defendant).

Mitchell S. Brody, Deputy Asst. State's Atty., with whom, on the brief, was Timothy J. Liston, for appellee (state).

Before SPALLONE, BIELUCH and NORCOTT, JJ.

SPALLONE, Judge.

The defendant appeals from the judgment of conviction, after a jury trial, of three counts of sexual assault in the second degree, General Statutes § 53a-71(a)(1) and two counts of risk of injury to a minor, General Statutes § 53-21. We find error in part.

The defendant claims that the trial court erred (1) by failing to grant his motion to separate into individual counts each allegation of a criminal offense, (2) by failing to grant his motion to sever, (3) by failing to grant his repeated requests for a bill of particulars sufficiently specific to enable him to prepare his defense, (4) by failing to grant his motion to dismiss those counts which were beyond the statute of limitations, (5) in limiting his use of the victim's professionally prepared mental health records, (6) by admitting "constancy of accusation" testimony, (7) by allowing the victim to testify concerning the defendant's alleged touching of a third party, (8) by admitting into evidence statements of a rebuttal witness that she would not leave her children alone with the defendant, and (9) by failing to consider the defendant's motion for a new trial based on newly discovered evidence.

The following facts are relevant to this appeal. In February, 1985, the complainant, then a ten year old girl, reported having been sexually assaulted by the defendant numerous times over the previous five years. Later that month, a warrant issued for the arrest of the defendant and, in March, 1986, he was brought to trial, before a jury, on an eleven count information. ¹ At trial, the victim testified that between August, 1980, and August, 1983, she was compelled by the defendant to engage in numerous acts of fellatio at the defendant's home in East Hampton, in a motor vehicle in various locations in East Hampton and in a motor vehicle near the banks of the Connecticut River in Cromwell. The jury returned with a verdict of guilty on the second, third, fifth, sixth and ninth counts. The defendant was acquitted of counts one, four, seven, eight, ten and eleven. These verdicts were accepted by the court on April 25, 1986. On June 9, 1986, the defendant filed a motion for a new trial, alleging the existence of newly discovered evidence. The motion was denied on June 12, 1986, and this appeal followed.

I

In his initial claim of error, the defendant faults the trial court for failing to grant his motion to separate the information into individual counts reciting distinct and separate single crimes, rather than commission of a single criminal offense on multiple occasions. Counts one, two, three, four, six, seven, eight and ten of the information accused the defendant of having committed sexual assaults of the minor victim. The second and third counts, of which the defendant was convicted, as well as the first, fourth and seventh counts, of which the defendant was acquitted, each alleged commission of a single crime on multiple occasions. The defendant contends that this manner of charging prejudiced him because the second and third counts of the state's information were duplicitous.

"Duplicity occurs when two or more offenses are charged in a single count of the accusatory instrument." A. Spinella, Connecticut Criminal Procedure p. 406. There is no question but that the second and third counts each include allegations of the commission of more than one offense by the defendant, albeit multiple commissions of the same offense. The issue put to us in this appeal is what effect should be given to the convictions rendered on the allegedly duplicitous counts and the determination of whether remedial action is required by this court. Although we cannot truly claim that this issue is one of first impression in this state; see, e.g., State v. Cook, 75 Conn. 267, 268-69, 53 A. 589 (1902); State v. Bosworth, 54 Conn. 1, 2, 4 A. 248 (1866); we feel that the length of time which has passed since last this claim was considered requires us to take a fresh look at the doctrine. In reaching our conclusion that the defendant was not prejudiced by the manner in which the information was prepared, we turn to recent treatments of this issue under federal law, as well as to the policy considerations which provided the bases for the earlier decisions of our own Supreme Court.

It is now generally recognized that "[a] single count is not duplicitous merely because it contains several allegations that could have been stated as separate offenses. See Cohen v. United States, 378 F.2d 751 (9th Cir.), cert. denied, 389 U.S. 897, 88 S.Ct. 217, 19 L.Ed.2d 215 (1967). Rather, such a count is only duplicitous where the policy considerations underlying the doctrine are implicated. See United States v. Margiotta, 646 F.2d 729, 733 (2d Cir.1981), cert. denied, 461 U.S. 913, 103 S.Ct. 1891, 77 L.Ed.2d 282 (1983)." United States v. Sugar, 606 F.Supp. 1134, 1146 (S.D.N.Y.1985); see also United States v. O'Neill, 463 F.Supp. 1200, 1202-1204 (E.D.Pa.1979), and cases cited therein. "These [considerations] include avoiding the uncertainty of whether a general verdict of guilty conceals a finding of guilty as to one crime and a finding of not guilty as to another, avoiding the risk that the jurors may not have been unanimous as to any one of the crimes charged, assuring the defendant adequate notice, providing the basis for appropriate sentencing, and protecting against double jeopardy in a subsequent prosecution. [ United States v. Murray, 618 F.2d 892, 896 (2d Cir.1980) ]." United States v. Margiotta, supra.

Taking these considerations seriatim, and viewing the information, the court's instructions to the jury and the verdicts rendered indicate to us that the defendant's right to a fair trial was not abridged. First, because the offenses charged here are exactly the same, there is no danger that the jury might by its return of a general verdict to an entire count, conceal a finding of not guilty as to one crime. Each count, although alleging repeated commissions of a crime, charged only a single set of essential elements comprising the offense. Because each offense contained the same elements, ² it would be impossible in this case for the jury to have selected elements from different criminal episodes to arrive at an unlawful verdict. Furthermore, the jury was specifically instructed that although "more than one occasion or diverse dates" were alleged, it had to find one completed violation of the statute alleged in that count. We conclude that the danger of a concealed not guilty verdict is largely nonexistent in a case, such as this, where only a single statutory offense is charged in one count. See United States v. Shorter, 608 F.Supp. 871, 879-80 (D.D.C.1985).

The second consideration of fairness concerns the possible lack of unanimity of the jury under the information and the evidence. While we are ever mindful that "the defendant is entitled to be protected against the danger that ... he will be convicted not on the basis of one unanimous verdict on a single set of facts but under juror votes of conviction which, depending on the particular member of the jury, relate to entirely different [occasions]"; id., 881; we find that with regard to the evidence adduced in this case, it was not possible for the jury to return a verdict which was not unanimous. Given the complainant's age and her relative inability to recall with specificity the details of separate assaults, the jury was not presented with the type of detail laden evidence which would engender differences of opinion on fragments of her testimony. In other words, the bulk of the state's case rested on the credibility of the young complainant. When she testified, for example, that on many occasions the defendant forced her to engage in fellatio while in a motor vehicle parked on the banks of the Connecticut River, the jury was left, primarily, only with the decision of whether she should be believed. With such general testimony, the spectre of lack of unanimity cannot arise. Furthermore, an examination of the court's charge reveals that the jury was adequately warned that it was required to render a unanimous verdict on at least a single violation of the statute alleged in each count in order to convict the defendant. Under the specific circumstances of this case, therefore, we conclude that the defendant was not prejudiced by the potential lack of jury unanimity.

We also conclude that the defendant was furnished with adequate notice of the charges against him, which satisfies the third fairness consideration. Here, the defendant was accused in each pertinent count with committing a specific act on a victim of a specific class on multiple occasions. "Unlike someone who is charged in a single [information] with violation of what may appear to be several overlapping laws, only a single statute is here involved." United States v. Shorter, supra, 880. We do not see how, if each violation contained in a count was listed separately, the defendant would have had "more precise or ample notice of the charges against him than he has under the present [information]." Id.

Once again, the fact that the counts charge multiple commissions of the same offense mitigates any problems with regard to the sentencing of the defendant, which is the focus of the fourth consideration. Whereas it might be difficult for a trial court to decide on a fair sentence when the defendant has been convicted on a single count containing disparate charges arising under different statutes, no such...