State v. Velasquez-Mattos
| Docket Number | SC 20683 |
| Decision Date | 12 September 2023 |
| Parties | STATE OF CONNECTICUT v. DANIELVELASQUEZ-MATTOS |
| Court | Connecticut Supreme Court |
Argued February 23-2023
Procedural History
Substitute information charging the defendant with one count of the crime of sexual assault in the first degree and two counts of the crime of risk of injury to a child, brought to the Superior Court in the judicial district of New Haven and tried to the jury before B. Fischer, J.; verdict and judgment of guilty, from which the defendant appealed to this court. Affirmed.
Denis J. O'Malley III, assistant public defender, with whom, on the brief, was Mark Rademacher, assistant public defender for the appellant (defendant).
Laurie N. Feldman, assistant state's attorney, with whom, on the brief, was John P. Doyle, state's attorney, for the appellee (state).
The principal issue in this appeal requires us to consider the relationship between the waiver doctrine announced in State v. Kitchens, 299 Conn. 447, 482-83, 10 A.3d 942 (2011), which applies to unpreserved challenges to jury instructions, and the use of jury instructions to protect the sixth amendment right to jury unanimity with respect to duplicitous charges, as explained by our recent decisions in State v. Douglas C, 345 Conn. 421, 285 A.3d 1067 (2022), and State v. Joseph V., 345 Conn. 516, 285 A.3d 1018 (2022). The defendant, Daniel Velasquez-Mattos appeals directly[1]from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the first degree, in violation of General Statutes § 53a-70 (a) (2),[2] and two counts of risk of injury to a child, in violation of General Statutes § 53-21 (a).[3] On appeal, the defendant claims that (1) the trial court improperly admitted, pursuant to the constancy of accusation doctrine, testimony that included excessive and unnecessary details of the sexual assault of the victim, J,[4] (2) the trial court improperly excluded impeachment evidence of pending criminal charges against a key witness for the state, and (3) the first degree sexual assault charge was duplicitous, in violation of his sixth amendment right to jury unanimity. We disagree with the defendant's claims and, accordingly affirm the judgment of the trial court.
The record reveals the following relevant facts, which the jury reasonably could have found, and procedural history. The defendant lived in the first floor apartment, and J's family lived in the second floor apartment, of a multifamily house. The defendant befriended then eight year old J and purchased various gifts for him, including clothes, video games, and a PlayStation 4 gaming console. Almost nightly, the defendant invited J downstairs to do homework and play video games in the defendant's bedroom, locking the bedroom door each time. During these visits in the locked bedroom, the defendant touched J's and his own penis and anally penetrated J with his penis.
J did not immediately disclose the sexual abuse because the defendant once brandished a knife in J's presence and threatened to kill J's family if he ever told anyone. The night before J disclosed the abuse to his mother, M, and his grandmother, T, the defendant visited their upstairs apartment, where he kissed J's neck, told J that he loved him, and played two sexually suggestive songs on his cell phone in front of M and T. After M and T told the defendant to stop and leave the apartment, the defendant began to cry and stated that he was going to write J a letter and commit suicide, which resulted in the defendant's hospitalization. The next day, J divulged in detail to M and T the "nasty stuff" that the defendant had done to him. M immediately called the police and took J to a hospital to be examined.
When the police questioned the defendant regarding his relationship with J, the defendant initially denied that any relationship existed but later admitted that he spent three or four days per week in his bedroom with J.
The defendant was arrested in March, 2015, and subsequently charged with, "on or about diverse dates between August, 2014, [through] October, 2014," (1) one count of sexual assault in the first degree, alleging that the victim was under thirteen years of age and the actor was more than two years older, in violation of § 53a-70 (a) (2), (2) one count of risk of injury to a child by contact with the intimate parts of a child under the age of sixteen in a sexual and indecent manner likely to impair the health and morals of the child, in violation of § 53-21 (a) (2), and (3) one count of risk of injury to a child by causing or permitting a child under the age of sixteen to be placed in a situation or engaging in an act likely to impair the health or morals of the child, in violation of § 53-21 (a) (1). The case was tried to a jury in December, 2015. At trial, M and T testified as constancy of accusation witnesses for the state regarding J's disclosure of the sexual abuse, and J's father, R, also testified for the state. The jury found the defendant guilty on all three counts, and the trial court rendered a judgment of conviction in accordance with the jury's verdict, sentencing him to a total effective sentence of twenty-five years of incarceration, execution suspended after eighteen years, followed by twenty years of probation. This appeal followed.
On appeal, the defendant claims that (1) the trial court abused its discretion by permitting M and T to testify regarding the details of J's report of the sexual assault and his disclosure to them of acts of fellatio about which he did not testify at trial, (2) the trial court improperly excluded impeachment evidence favorable to his defense that a key state's witness, R, had pending criminal charges, and (3) under State v. Douglas C, supra, 345 Conn. 421, and State v. Joseph V., supra, 345 Conn. 516, the trial court's failure to provide a specific unanimity instruction requires reversal of his sexual assault conviction. Additional relevant facts will be set forth as necessary in the context of each claim on appeal.
We first consider the defendant's claim that, under the legal framework set forth in State v. Troupe, 237 Conn. 284, 304, 677 A.2d 917 (1996), the trial court abused its discretion by admitting constancy of accusation evidence from M and T relating to J's disclosure of the defendant's sexual conduct. To begin, the defendant contends that the admission of the constancy testimony violated § 6-11 (c) of the 2009 edition of the Connecticut Code of Evidence, the version of that provision in effect at the time of the defendant's trial,[5] in two ways: (1) the details of the alleged sexual activity between J and the defendant were not necessary to associate J's allegation with the pending charges, and (2) constancy testimony that the defendant had performed fellatio on J was inconsistent with J's testimony at trial, which did not mention that act. Relying on State v. Rolon, 257 Conn. 156, 777 A.2d 604 (2001), the defendant argues that, because Troupe permits testimony only as to "the time and place of the attack or the identity of the alleged perpetrator"; (internal quotation marks omitted) id., 191; the admission of such details for constancy purposes was an abuse of the trial court's discretion. The defendant further contends that the trial court's abuse of discretion requires reversal, considering that the state's case rested solely on J's credibility.
In response, the state argues that, under the case law governing constancy evidence at the time of trial; see footnote 5 of this opinion; the trial court correctly followed the limitations of Troupe by admitting the constancy evidence because the witnesses' testimony corroborated J's testimony and any inconsistency could be explored on cross-examination. The state, quoting State v. Troupe, supra, 237 Conn. 304, also contends that the trial court correctly limited the testimony solely to statements concerning" 'the details surrounding the assault . . . .' "[6] We agree with the state and conclude that the constancy of accusation evidence admitted in this case did not violate the limitations set forth in Troupe.
At trial, J testified that the "first time" that the defendant touched him occurred while he was in the defendant's bedroom playing video games. The defendant touched his own penis, "put it near . . . [J's] behind," and then forced J to touch the defendant's penis with J's hand, which J was forced to move "up and down" for about ten seconds. J also testified that, on another occasion, the defendant put his penis "halfway" into J's "behind," that the defendant moved it "up and down," which "hurt" and made J scream, and that he "felt stuff" on his back. Later, on direct examination, J testified that he told M and T that the defendant had done "nasty stuff to him. When the prosecutor asked J to explain the "nasty stuff," J stated that the defendant "used to kiss [J] and . . . like, take his thing in [J's] behind, and, like, touch [J's] boy part." On cross-examination, J conceded that he had told a forensic interviewer that "[the defendant] never touched [him] with his mouth . . . ."On redirect examination, when again asked about the disclosure of the "nasty stuff to M and T, J testified that, "when [he] came back from school, [he] told [his] grandma all about it." J then answered in the affirmative when the prosecutor clarified that J had "told [his] grandmother ... all the . . . nasty things that [the defendant] had done . . . ."
M, who is J's mother, subsequently testified for the state as a constancy witness. During the state's offer of proof, M testified that J had thanked her for taking the "creepy man away from" him. She also testified that J told her that the defendant had brandished...
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