State v. Zachary F. ( 2014 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. ZACHARY F.*
(AC 33908)
Lavine, Keller and Flynn, Js.
Argued March 13—officially released July 15, 2014
(Appeal from Superior Court, judicial district of
Hartford, O’Keefe, J.)
Richard E. Condon, Jr., senior assistant public
defender, for the appellant (defendant).
Matthew A. Weiner, deputy assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Donna Mambrino, senior assistant state’s
attorney, for the appellee (state).
Opinion
FLYNN, J. After a jury trial, the defendant, Zachary
F., appeals from the judgment of conviction for kidnap-
ping in the first degree in violation of General Statutes
§ 53a-92 (a) (2) (B); kidnapping in the first degree in
violation of General Statutes § 53a-92 (a) (2) (C); cruelty
to persons in violation of General Statutes § 53-20 (a)
(1); and sexual assault in the first degree in violation
of General Statutes § 53a-70 (a) (1). On appeal, the
defendant claims that the trial court abused its discre-
tion and prejudiced him by improperly admitting prior
misconduct evidence concerning his violent actions
toward the victim of his crimes.
Even if we were to assume without deciding that the
admission of the challenged evidence was improper,
we conclude that the defendant has not shown the
requisite harm from its admission because the other
evidence against him was overwhelming. First, the
defendant made a written statement incriminating him-
self to the police. Second, he videotaped much of the
conduct for which he was convicted. Third, he took
the stand at his trial and made factually incriminatory
statements in his testimony. For these reasons, any
error was harmless. Therefore, we affirm the judgment
of conviction.
The jury reasonably could have found the following
facts. The defendant had a previous relationship with
the victim in the case and was the parent of two children
with her. That relationship had ceased and he had initi-
ated a new relationship with another woman who was
expecting his child. He learned that the victim was
dating another man. On December 13, 2009, in Hartford,
he entered the victim’s car uninvited and threatened to
smash her head into the windshield if she refused to
drive them to her home. The victim was caught by
surprise when the defendant forced his way into her
automobile and testified to being fearful when he threat-
ened to smash her face into the hard parts of the car
and ordered her to drive to her home.
After they entered her house, the defendant displayed
duct tape and grabbed the victim by her arm when she
tried to escape. He then took off most of her clothes,
duct taped her legs, hands, and mouth, and threatened
to cut off her breath by taping her nose shut. He admit-
ted to the police, and in his cross-examination at trial,
to restraining her with the duct tape. She continued to
make sounds of protest, though gagged with duct tape.
He claimed to have been ‘‘disrespected’’ by the fact that
she had seen another man after he had forbidden her
from doing so. The victim also testified that she was
forced, without her consent, to perform fellatio on the
defendant because she feared she might otherwise be
killed. The defendant videotaped this intercourse. He
also videotaped images of her naked private body parts
and threatened to forward these images to her friends
and to her place of employment.
During trial, the prosecution showed to the jury the
videotape that had been taken by the defendant. The
defendant claimed that the victim’s participation in all
of this was voluntary and a form of bondage to which
she consented. The defendant was convicted of all four
crimes for which he was charged. This appeal followed.
On appeal, the defendant claims that the court abused
its discretion by admitting evidence of his prior miscon-
duct under the ‘‘opening of the door’’ doctrine. He fur-
ther argues that he was prejudiced by the admission of
the prior misconduct evidence and that the admission
was harmful. The court allowed the jury to hear testi-
mony concerning the defendant’s prior acts of violence
against the victim, which occurred approximately three
weeks before the December 13, 2009 incident. Before
trial, the defense counsel filed a motion to require notice
of uncharged misconduct and a motion to exclude evi-
dence of prior convictions. In the argument on these
motions, conducted outside the jury’s presence, the
defense counsel advised the court that there were three
prior situations, one involving a different complainant,
and two others involving the victim. One of the prior
incidents involving the victim stemmed from domestic
violence and the other resulted in a charge of assault
in the third degree, in violation of General Statutes
§ 53a-61. When both the state and the defendant put on
record that they had no intention of raising these mat-
ters at trial, the court did not rule on the defendant’s
motion.
The following testimony, elicited from the victim on
cross-examination, formed the basis for the court’s
determination that defense counsel had opened the
door to the admission of evidence of the defendant’s
acts of misconduct prior to the December 13, 2009 inci-
dent. To place this cross-examination evidence in con-
text, we first note that, during the victim’s direct
testimony, the prosecutor asked her if she had told the
defendant’s mother about the December 13, 2009 events
when she went back to the defendant’s mother’s home
to retrieve her two children. The victim responded that
she had not done so, because she wanted to act as
normally as she could and get to safety. Then, on cross-
examination, defense counsel asked a series of ques-
tions, one of which was: ‘‘Before December 13, 2009,
you confided in [the defendant’s mother]?’’ He then
reconfirmed that the victim had not told the defendant’s
mother of the December 13, 2009 incident.
On redirect examination, over the objection of
defense counsel, the court ruled that the cross-examina-
tion had ‘‘opened the door’’ to admission of prior mis-
conduct evidence. As such, the court permitted the
admission of testimony from the victim that she had
told the defendant’s mother, prior to the December 13,
2009 incident, that the defendant had grabbed her by
the shirt, slammed her on the ground, bashed her on
the head, took her by the feet and tossed her over,
grabbed her by the neck, pinned her against the wall
and choked her, and bruised her foot, causing it to
swell, and that the defendant’s mother was upset when
the victim informed her of these events. The defendant
argues that the trial court abused its discretion and
prejudiced him by allowing the jury to hear this tes-
timony.
‘‘As a general rule, evidence of prior misconduct is
inadmissible to prove that a criminal defendant is guilty
of the crime of which the defendant is accused . . . .
Such evidence cannot be used to suggest that the defen-
dant has a bad character or a propensity for criminal
behavior.’’ (Internal quotation marks omitted.) State v.
Randolph, 284 Conn. 328, 340, 933 A.2d 1158 (2007).
Such evidence may become admissible through the doc-
trine of ‘‘opening the door.’’ State v. Solomon, 141 Conn.
App. 270, 278–79, 60 A.3d 1039, cert. denied, 308 Conn.
939, 66 A.3d 881 (2013). ‘‘[W]hen . . . a party opens
the door to a subject that pertains directly to the credi-
bility of the witness, he does so at his own risk. . . .
In such cases, the rule is that a party who delves into
a particular subject during the examination of a witness
cannot object if the opposing party later questions the
witness on the same subject. . . . Even though the
rebuttal evidence would ordinarily be inadmissible on
other grounds, the court may, in its discretion, allow it
where the party initiating inquiry has made unfair use
of the evidence. . . . The trial court must carefully con-
sider whether the circumstances of the case warrant
further inquiry into the subject matter, and should per-
mit it only to the extent necessary to remove any unfair
prejudice which might otherwise have ensued from the
original evidence.’’ (Internal quotation marks omit-
ted.) Id.The defendant claims that the court erred in admitting
the evidence of prior misconduct. ‘‘In most cases involv-
ing error, constitutional or otherwise . . . harmless
error analysis applies.’’ State v. Stuart, 113 Conn. App.
541, 551, 967 A.2d 532, cert. denied, 293 Conn. 922,
980 A.2d 914 (2009). We do not reach the question of
whether the court improperly admitted the evidence of
the defendant’s prior acts of misconduct because the
defendant has failed to show that the admission of the
evidence was harmful.
The following principles enunciated by our Supreme
Court guide our harmless error analysis. The defendant
concedes that any potential error was not of constitu-
tional magnitude. ‘‘[A] nonconstitutional error is harm-
less when an appellate court has a fair assurance that
the error did not substantially affect the verdict.’’ (Inter-
nal quotation marks omitted.) State v. Sawyer, 279
Conn. 331, 357, 904 A.2d 101 (2006), overruled in part
on other grounds by State v. DeJesus, 288 Conn. 418,
454–55 n.23, 953 A.2d 45 (2008). ‘‘[W]hether [the
improper admission of a witness’ testimony] is harmless
in a particular case depends upon a number of factors,
such as the importance of the witness’ testimony in the
prosecution’s case, whether the testimony was cumula-
tive, the presence or absence of evidence corroborating
or contradicting the testimony of the witness on mate-
rial points, the extent of cross-examination otherwise
permitted, and, of course, the overall strength of the
prosecution’s case. . . . Most importantly, we must
examine the impact of the [improperly admitted] evi-
dence on the trier of fact and the result of the trial.’’
(Internal quotation marks omitted.) State v. Sawyer,
supra, 279 Conn. 358. The defendant has the burden of
showing that admission of the evidence was harmful.
Id. In the present case, the most important factors are
the overall strength of the prosecution’s case and the
impact of the evidence and the jury instructions on the
trier of fact. State v. Pascual, 305 Conn. 82, 94, 43 A.3d
648 (2012).
In reviewing the strength of the state’s case and the
impact on the jury of the disputed evidence and the
effect of the jury instructions, we first set out the stat-
utes of which the defendant was found guilty.
Section 53a-92 (a) provides in relevant part: ‘‘A person
is guilty of kidnapping in the first degree when he
abducts another person and . . . (2) he restrains the
person abducted with intent to . . . (B) accomplish or
advance the commission of a felony. . . .’’
Section 53a-92 (a) provides in relevant part: ‘‘A person
is guilty of kidnapping in the first degree when he
abducts another person and . . . (2) he restrains the
person abducted with intent to . . . (C) terrorize
[her] . . . .’’
Section 53a-70 (a) provides in relevant part: ‘‘A person
is guilty of sexual assault in the first degree when such
person (1) compels another person to engage in sexual
intercourse by the use of force against such other per-
son . . . or by the threat of use of force against such
other person . . . .’’
Finally, § 53-20, entitled ‘‘Cruelty to persons.’’ pro-
vides in relevant part: ‘‘(a) (1) Any person who inten-
tionally tortures, torments or cruelly or unlawfully
punishes another person or intentionally deprives
another person of necessary food, clothing, shelter or
proper physical care shall be fined not more than five
thousand dollars or imprisoned not more than five years
or both. . . .’’
The defendant does not claim on appeal that there
was insufficient evidence of the elements of any of
the crimes. Instead, he argues that evidence of prior
misconduct was improperly admitted and was prejudi-
cial, and that the claimed error was not harmless. Our
review of the record indicates that the defendant has
not shown that any claimed error was harmful because
the evidence he supplied in a written statement to police
investigators, a videotape of his criminal conduct
toward the victim, and his own incriminating trial testi-
mony was such overwhelming evidence of his guilt that
the jury was not likely swayed by admission of the prior
uncharged acts of misconduct. The admission of the
defendant’s prior acts of misconduct did not vitiate the
strength of the prosecution’s case; the prosecutor did
not reference any of the challenged evidence in her
summation to the jury.1
The information read to the jury at the start of trial
charged in its first count that the defendant committed
the crime of kidnapping in the first degree with the
intent to commit the crime of cruelty to persons. There
was evidence from the victim that she was threatened
when the defendant climbed into her car and ordered
her to drive to her home, and when he grabbed her arm
to prevent her from running when he displayed duct
tape. Her testimony and his own videotape showed that
he cruelly bound her naked body with duct tape after
taking off most of her clothes, leaving her restrained
for over an hour, unable to breathe properly because
her mouth was taped. The binding and her muffled
protests were visible on the videotape that he had made,
and which the jury heard and saw. There was compel-
ling evidence of the elements of kidnapping.
The same evidence supported his conviction for cru-
elty to persons in violation of § 53-20 (a) (1). There was
a massive body of evidence from his own words to the
police that he committed a kidnapping with the intent
to terrorize his victim and that he sexually assaulted
her and cruelly tormented her. He admitted to the police
in a written statement that he ‘‘just wanted to scare
her, so I taped her up.’’ In the same written statement
he admitted that he brought the duct tape with him
‘‘for the intent of taping her up.’’ In his testimony, the
defendant admitted to binding the victim with duct tape
and videotaping her while she was restrained. His video
showed the victim struggling, bound with duct tape,
naked, gagged and the defendant intimating, while both
her mouth and nose were duct taped, that she might
die. The victim testified that her phone rang while she
was bound with the duct tape and that the defendant
‘‘asked me if I wanted to get the call because it could
be my last call.’’
The jury viewed the videotape and heard the victim’s
muffled cries while she was gagged. It sounded at one
point like she said, ‘‘Please stop.’’ The defendant was
heard saying to the victim, ‘‘You don’t like this, do you?’’
The defendant videotaped her naked private parts. He
admitted in his written statement that he ‘‘took some
photos and videos of her’’ on his cell phone to embarrass
her, and that he threatened to send them to her friends.
The defendant also admitted in his testimony that he
bound the victim with duct tape in order to embarrass
her. The victim began vomiting at one point in her
ordeal. The defendant refused her request for water
when her mouth became dry after being gagged.
There was overwhelming evidence that the defendant
engaged in fellatio with the victim and that it was not
consensual. Prior to his sexual assault of her, she had
been abducted, terrorized, bound hand and foot,
gagged, treated cruelly, and led to fear for her own life
by the defendant. In the face of such evidence, we
conclude that the defendant has failed to show harm-
fulness because it is highly unlikely that any jury would
have been influenced in its verdict by the prior miscon-
duct evidence.
The defense that the defendant presented at trial was
that the victim voluntarily submitted to all of this. This
defense of consent is belied by the defendant’s own
admissions and the videotape that he created. The
defendant admitted in his testimony that he heard the
victim ‘‘begging and pleading’’ for him to release her
and that he refused to do so. These admissions and the
videotape of his conduct toward the victim made the
state’s case against him overwhelmingly strong. It was
not simply a credibility contest between an accused
and a victim, where the jury had to decide whether the
defendant or the victim’s testimony was more credible.
Instead it was one in which the victim’s sworn testimony
was corroborated by some of the defendant’s own state-
ments, his in-court testimony, and his self-produced
videotape—all of which vividly painted a picture for
the jury that these crimes had been committed against
the victim without her consent. In light of the strength
of the state’s case against him, the defendant has not
shown that the jury’s verdict was affected by the admis-
sion of prior misconduct evidence.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual assault, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
1
The court did not issue a limiting instruction on the challenged evidence,
nor was one requested.