State v. Tomas D., (SC 18415) (Conn. App. 6/1/2010)

• Decision Date: 01 June 2010
• Docket Number: (SC 18415).
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT, <I>v.</I> TOMAS D.

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STATE OF CONNECTICUT,
v.
TOMAS D.^* (SC 18415). Appellate Court of Connecticut. Argued January 12, 2010. Officially released June 1, 2010.

Matthew A. Weiner, with whom was Charles D. Ray, for the appellant (defendant).

Timothy F. Costello, deputy assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Eva Lenczewski, supervisory assistant state's attorney, for the appellee (state).

Norcott, Katz, Palmer, Vertefeuille and Zarella, Js.^**

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Opinion

NORCOTT, J.

The principal issue in this appeal is whether the state violated the defendant's rights to compulsory process under both the sixth amendment to the United States constitution,¹ and article first, § 8, of the Connecticut constitution,² when the prosecutor failed to notify him that it had released from subpoena the lead police investigator, who then became temporarily unavailable to testify at the trial. The defendant, Tomas D., appeals³ from the judgment of the trial court, rendered after a jury trial, convicting him of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2),⁴ unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a),⁵ and risk of injury to a child in violation of General Statutes (Rev. to 2005) § 53-21 (a) (2).⁶ On appeal, the defendant, in addition to his subpoena claims, contends that: (1) the evidence at trial was insufficient to establish his guilt beyond a reasonable doubt; (2) the trial court abused its discretion by denying his motion for a new trial; and (3) prosecutorial impropriety deprived him of a fair trial. We disagree with the defendant's various claims and, accordingly, affirm the judgment of the trial court.

The record reveals the following facts, which the jury reasonably could have found, and procedural history. On Monday, May 1, 2006, the then twelve year old victim was living in Waterbury with her grandfather, T, and her grandmother, E, who are the parents of the defendant, who is the victim's uncle. Shortly before 7 a.m. on that date, the defendant telephoned their home and asked the victim whether she was going to school that day; she informed him that she planned to attend. A few minutes later, the defendant telephoned again and told the victim that he would drive her to school; this was unusual because he had never driven her to school before, and she ordinarily took the school bus. Shortly thereafter, the defendant arrived and spoke with T, leading T to believe that the defendant would drive the victim to school so that T could bring his other younger grandchildren to their schools.

The defendant then drove the victim in his Jeep past her school bus stop, where she waved to O, one of her friends who was waiting there. While they drove, the defendant commented to the victim: "[He] had to make sure [the victim] get[s] to school, because [she] could get hurt outside if [she doesn't] get to school, if [she's] outside, because someone could rape [her] or something and—or kill [her]." Rather than drive the victim directly to school, the defendant drove to his apartment first and asked her to come inside because he needed to change out of his work clothing.⁷ While the victim ate cereal in the defendant's kitchen, the defendant went upstairs to change, and then came down clad only in his boxer shorts. He then led her by the arm upstairs to his bedroom. Once they arrived in his bedroom, the

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defendant said, "for someone else to do it, that he'd rather do this himself," started to play a pornographic DVD that he took from a green plastic storage bin in the bedroom and directed the victim to go to the bed. The defendant then pushed the victim onto the bed, and pulled off her pants and underwear, groped her breasts and licked her vagina. When the victim told the defendant to stop, he said, "[d]on't make me use force," pulled her legs apart, and engaged in vaginal intercourse with her.

Several hours later, at approximately 2:30 p.m., after the victim already had tried unsuccessfully to leave the defendant's house on her own,⁸ the defendant and the victim took his other Jeep to pick up M, the daughter of the defendant's fiancée. While in the car, the defendant asked the victim not to tell E what had occurred "because [E] would kill him," and told her to tell E that the defendant had picked her up from school because she was scared. After dropping M off at the defendant's home, they then drove toward the victim's house, where they came upon E and T walking with S, the defendant's sister, and several of their other grandchildren, including C, the defendant's daughter. The defendant pulled the Jeep over and told E that the victim had called him and asked to be picked up from school because she was scared.⁹ After E gave the victim a key, C joined the victim and the defendant in the car for the rest of the trip to the victim's home; the rest of the family declined the defendant's offer of a ride, as they were already close to home.

The victim, T and E all testified that, in the days following May 1, the victim showered with unusual frequency,¹⁰ acted withdrawn and locked herself in her bedroom when the defendant visited their home. When O subsequently asked the victim why she had not been in school that day, she told O about the assault; she did not, however, report it to an adult until Friday, May 5, when she told E. E then brought the victim to Saint Mary's Hospital.¹¹

Following a police investigation, the state charged the defendant with sexual assault in the first degree in violation of § 53a-70 (a) (2), unlawful restraint in the first degree in violation of § 53a-95 (a), and risk of injury to a child in violation of § 53-21 (a) (2). Thereafter, the case was tried to a jury. After the trial court denied the defendant's oral motion for a judgment of acquittal on the basis of testimonial and documentary evidence that the victim had been marked present in school at the time of the assault,¹² the jury returned a verdict of guilty on all counts. The defendant then filed posttrial motions for a judgment of acquittal and for a new trial, claiming, inter alia, that the verdict was contrary to the evidence and that the state improperly had failed to inform the defense that it had released Scott Stevenson, a sergeant of the Waterbury police department and the lead investigator

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in this case, from his subpoena, causing him to leave for his scheduled vacation and become unavailable to testify at the trial, thus depriving the trier of fact of Stevenson's potentially material and exculpatory testimony.¹³ The trial court denied both motions, rendered a judgment of conviction in accordance with the jury's verdict and sentenced the defendant to a total effective sentence of thirty-five years imprisonment, execution suspended after nineteen years, and thirty years probation. This appeal followed. See footnote 3 of this opinion.

On appeal, the defendant claims that: (1) the evidence was insufficient to establish his guilt beyond a reasonable doubt; (2) the trial court improperly denied his motion for a new trial; (3) the state's failure to notify him that it had released Stevenson from subpoena violated his federal and state constitutional rights to compulsory process; and (4) prosecutorial impropriety deprived him of a fair trial.

I FACT BASED CLAIMS

We begin with the defendant's fact based claims that: (1) the evidence was not sufficient to establish his guilt beyond a reasonable doubt; and (2) the trial court abused its discretion by denying his motion for a new trial because the jury's verdict was contrary to the weight of the evidence.

A Sufficiency of the Evidence

We begin with the defendant's claim that the evidence was insufficient to convict him of the crimes charged.¹⁴ Specifically, the defendant argues that there was evidence, "not refuted by the state, that it was physically impossible for [him] to have committed the charged crimes because [the victim] was in school—not in [his] apartment—on the day and time that she claimed she was assaulted." The defendant also emphasizes the lack of physical evidence to support the victim's allegations, and that the only evidence of his guilt is "the inconsistent and contradictory testimony of the [victim]; testimony on the basis of which no reasonable person could have concluded that [he] was guilty beyond a reasonable doubt." In response, the state argues that the defendant's claim is a "misguided invitation to this court to second-guess the credibility determinations of the jury," and further contends that the verdict is supported by direct evidence, namely, the victim's testimony. We agree with the state and conclude that the evidence was sufficient to sustain the jury's verdict under the well established standard by which we review sufficiency of the evidence claims. See, e.g., State v. Na'im B., 288 Conn. 290, 295-97, 952 A.2d 755 (2008) (evidence construed in light most favorable to sustaining verdict in determining whether it is sufficient to prove guilt

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beyond reasonable doubt).

The defendant does not claim that the evidence, if properly credited by the jury, leaves unsatisfied any of the elements of the offenses charged under § 53a-70 (a) (2), § 53a-95 (a) or § 53-21 (a) (2). Rather, he contends that he could not have committed the crimes because attendance records from the victim's middle school indicate that she was there, rather than with him, on the day and at the time of the assault. The jury, however, reasonably could have found that those attendance records were the product of a data entry error committed by one of the victim's homeroom teachers, who had not recorded the victim as being absent when she took attendance using the "Letter Grade" computer program during homeroom, which lasted from 7:50 until 8 a.m.¹⁵ O, who had seen the victim drive by the bus stop with the defendant, and was in all of her classes except for...