State v. James H. ( 2014 )

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STATE OF CONNECTICUT v. JAMES H.*
(AC 35754)
DiPentima, C. J., and Lavine and Alvord, Js.
Argued April 9—officially released June 17, 2014
(Appeal from Superior Court, judicial district of
Windham at Danielson, Swords, J.)
Raymond L. Durelli, assigned counsel, for the appel-
lant (defendant).
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, were Patricia M. Froehlich,
state’s attorney, and Matthew A Crockett, assistant
state’s attorney, for the appellee (state).
Opinion
ALVORD, J. The defendant, James H., appeals from
the judgment of conviction, rendered after a jury trial,
of two counts of sexual assault in the first degree in
violation of General Statutes § 53a-70 (a) (2); one count
of sexual assault in the second degree in violation of
General Statutes § 53a-71 (a) (1); two counts of sexual
assault in the third degree in violation of General Stat-
utes § 53a-72a (a) (2); and two counts of risk of injury
to a child in violation of General Statutes § 53-21 (a)
(2). The defendant claims that the trial court (1) abused
its discretion when it ‘‘failed to conduct the most ele-
mentary inquiry into an allegation of possible jury mis-
conduct’’; (2) abused its discretion in applying General
Statutes § 54-86f, commonly known as the rape shield
statute, when it ‘‘failed to conduct an evidentiary hear-
ing permitting the defendant to question [one of] the
complainant[s] regarding her sexual conduct;’’ (3)
abused its discretion when it precluded the defendant
‘‘from questioning [one of] the complainant[s] regarding
the contents of the Department of Children and Families
[(department)] records previously disclosed’’; (4) vio-
lated the defendant’s due process right to a fair trial
by ‘‘referring to the crimes with which the defendant
had been charged as crimes exhibiting ‘compulsive sex-
ual criminal behavior’ ’’; and (5) erred when it con-
cluded that ‘‘the adverse spousal testimony privilege,
codified at General Statutes (Rev. to 2003) § 54-84a,
applied in this case’’ and thereafter admitted into evi-
dence text messages sent between the defendant and
his former wife, C.H.H.1 We affirm the judgment of the
trial court.
The jury reasonably could have found that, beginning
at the ages of approximately five and four respectively,
the defendant repeatedly sexually assaulted two of his
daughters, C and J, over the course of approximately
nine years. The assaults consisted of fondling, digital
penetration, and oral sex. In the case of C, the assaults
progressed to vaginal intercourse when she was twelve
or thirteen years old. In December, 2007, the police
were notified of the allegations of sexual abuse, and
the victims underwent medical examinations. C tested
positive for chlamydia, and the results of J’s exam were
indeterminate. At trial, both C and J provided detailed
testimony regarding the sexual assaults. In addition, C
testified that she had never engaged in sexual inter-
course with anyone other than the defendant. The
defendant, who elected to represent himself during the
trial,2 testified in his own defense and categorically
denied sexually assaulting either of his daughters. He
claimed that they were fabricating the allegations
against him in retaliation for his attempts to discipline
them. At the conclusion of trial, the jury found the
defendant guilty on all counts. The court imposed a
total effective sentence of sixty years incarceration,
execution suspended after forty years, and twenty-five
years of probation with multiple special conditions.
This appeal followed.
I
We first address the defendant’s claim that the court
abused its discretion when it ‘‘failed to conduct the
most elementary inquiry [into an allegation of possible
juror misconduct] required to satisfy the mandate set
forth in State v. Brown, 235 Conn. 502, 668 A.2d 1288
(1995).’’ The defendant specifically asserts that the
court failed to ‘‘conduct a basic factual inquiry into
the substantive content of possible misconduct’’ and to
‘‘generate a record adequate to determine whether any
misconduct occurred, and if it did, whether it was preju-
dicial.’’ The defendant’s claim is unpreserved, and he
seeks review under State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989),3 based upon his fundamen-
tal right to a trial before an impartial jury. We review
the defendant’s claim under Golding because the record
is adequate for review and the claims alleged are of
constitutional magnitude.4 We conclude, however, that
the defendant has failed to satisfy the third prong of
Golding.
The following additional facts are relevant to the
defendant’s claim. On July 29, 2010, at the start of the
fourth day of trial, the court advised the parties that it
had been informed by a marshal that a judicial
employee, Leah Ralls, ‘‘may have overheard the jurors
say something yesterday while they were out on a
break.’’ Accordingly, the court called Ralls to the wit-
ness stand so that she could testify as to what she
heard. Ralls stated that while walking past two jurors
sitting at a picnic table, she ‘‘overheard someone make
mention to the cross-examination of the case’’ but that
she ‘‘did not hear any specifics’’ or ‘‘any details of the
conversation.’’ In response to the court’s questions,
Ralls reiterated that she ‘‘just heard a reference’’ to
‘‘cross-examination’’ but overheard no details about
‘‘cross-examination.’’5
When a trial court is presented with an allegation of
jury misconduct in a criminal case, the court ‘‘must
conduct a preliminary inquiry, on the record . . .
regardless of whether an inquiry is requested by coun-
sel.’’ State v. Brown, supra, 235 Conn. 526. ‘‘The form
and scope of such inquiry is left to the discretion of
the trial court based on a consideration of multiple
factors, including: (1) the private interest of the defen-
dant; (2) a risk and value assessment of additional pro-
cedural safeguards; and (3) the government’s interest.
. . . In outlining these factors, we also [have] acknowl-
edged, however, that [i]n the proper circumstances,
the trial court may discharge its obligation simply by
notifying the defendant and the state of the allegations,
providing them with an adequate opportunity to
respond and stating on the record its reasons for the
limited form and scope of the proceedings held.’’ (Cita-
tion omitted; internal quotation marks omitted.) State
v. Alston, 272 Conn. 432, 453, 862 A.2d 817 (2005).
Accordingly, ‘‘[a]ny assessment of the form and scope
of the inquiry that a trial court must undertake when
it is presented with allegations of jur[or] [bias or] mis-
conduct will necessarily be fact specific. . . . We
[therefore] have limited our role, on appeal, to a consid-
eration of whether the trial court’s review of alleged
jur[or] misconduct can fairly be characterized as an
abuse of its discretion.’’ (Internal quotation marks omit-
ted.) Kervick v. Silver Hill Hospital, 309 Conn. 688,
700, 72 A.3d 1044 (2013).
On the basis of the record, the trial court’s actions
in the present case satisfy the preliminary inquiry
required by Brown. After learning of the alleged miscon-
duct from the marshal, the court, on the record, alerted
both the defendant and the state, and conducted a basic
factual inquiry by calling Ralls to testify as to exactly
what she overheard. Following this inquiry, the court
concluded that ‘‘based upon what [Ralls] has testified
to,’’ it did ‘‘not intend to explore this any further with
the jurors’’ and stated that it would ‘‘remind [the jurors]
again that they are not to discuss this case with anyone
or amongst themselves, as [the court] ha[d] repeatedly
[instructed the jurors] throughout the case, when they
go out on any future breaks.’’ Neither the defendant
nor the state objected to the court’s proposed course
of action, and neither the defendant nor the state
requested that the court make any further inquiries. As
we have recognized, the trial court is in a superior
position to evaluate the credibility of allegations of jury
misconduct; see State v. Owens, 100 Conn. App. 619,
628 n.7, 918 A.2d 1041, cert. denied, 282 Conn. 927, 926
A.2d 668 (2007); therefore, it was well within the court’s
purview to conclude that the reference to ‘‘cross-exami-
nation’’ overheard by Ralls did not warrant further
investigation. Moreover, ‘‘[where] the trial court was in
no way responsible for the juror misconduct . . . we
have repeatedly held that a defendant who offers proof
of juror misconduct bears the burden of proving that
actual prejudice resulted from that misconduct.’’ (Inter-
nal quotation marks omitted.) State v. Bozelko, 119
Conn. App. 483, 494, 987 A.2d 1102, cert. denied, 295
Conn. 916, 990 A.2d 867 (2010), cert. denied, U.S.
, 134 S. Ct. 1314, 188 L. Ed. 2d 331 (2014). The
defendant here has not made any such showing of preju-
dice. Accordingly, we conclude that the court did not
abuse its discretion in its investigation of alleged
juror misconduct.
II
Next, we turn to the defendant’s claim that the court
abused its discretion in applying § 54-86f, the rape shield
statute, when it failed to conduct an evidentiary hearing
permitting the defendant the opportunity to question his
daughter, C, regarding her sexual conduct. He maintains
that he ‘‘clearly met his preliminary burden of demon-
strating [that] the evidence was sufficiently relevant
under § 54-86f, where, at the pretrial hearing, both par-
ties averred that [C] would testify that she had tested
positive for chlamydia, a sexually transmitted disease,
and had never engaged in vaginal penile intercourse
with anyone other than the defendant, and defense
counsel represented that the defendant had never
test[ed] positive for chlamydia.’’ We disagree with the
defendant’s claims.
The following facts are relevant to this claim. On
July 21, 2010, the trial court heard pretrial motions,6
including the defendant’s motion for an evidentiary
hearing under § 54-86f (1), (2), and (4),7 and the defen-
dant’s motion to admit evidence of sexual conduct. The
court then determined that the defendant lacked a good
faith basis to ask C whether she had sexual intercourse
with anyone other than the defendant; however, it
agreed, at the defendant’s request, to defer its ruling
‘‘until after hearing the medical evidence . . . .’’ The
defendant did not subsequently seek to introduce evi-
dence of C’s sexual conduct during his cross-examina-
tion of C or after the testimony of the state’s medical
expert.
‘‘[O]ur standard of review regarding challenges to a
trial court’s evidentiary rulings is that these rulings will
be overturned on appeal only where there was an abuse
of discretion and a showing by the defendant of substan-
tial prejudice or injustice. . . . In reviewing claims that
the trial court abused its discretion, great weight is
given to the trial court’s decision and every reasonable
presumption is given in favor of its correctness. . . .
We will reverse the trial court’s ruling only if it could
not reasonably conclude as it did.’’ (Internal quotation
marks omitted.) State v. Farah, 126 Conn. App. 437,
444–45, 13 A.3d 1108, cert. denied, 300 Conn. 931, 17
A.3d 68 (2011).
Section 54-86f ‘‘greatly restricts the admissibility of
evidence of the prior sexual conduct of a sexual assault
victim. . . . The policies behind the rape shield statute
are well established. . . . The statute is intended to
protect victims’ personal privacy, to shield them from
unnecessary harassment and embarrassment in court,
and to encourage them to disclose sexual assault by
reducing some of the deterrents to reporting. . . .
Moreover, the statute reflects a modern understanding
of the general irrelevance of prior sexual conduct to
particular allegations of rape.’’ (Citations omitted; inter-
nal quotation marks omitted.) State v. Kulmac, 230
Conn. 43, 53, 644 A.2d 887 (1994).
‘‘[The rape shield statute] provides for a two step
process before evidence proffered by a defendant as
falling under one of the statute’s exceptions may be
admitted. First, if the defendant has satisfied his prelimi-
nary burden in his offer of proof to show that the evi-
dence is potentially relevant, pursuant to the statute
the trial court must conduct a hearing to determine the
admissibility of the evidence. Second, [i]f, after hearing,
the court finds that the evidence meets the requirements
of this section and that the probative value of the evi-
dence outweighs its prejudicial effect on the victim, the
court may grant the motion.’’ (Internal quotation marks
omitted.) State v. Crespo, 303 Conn. 589, 602, 35 A.3d
243 (2012). ‘‘In the first step of this two part process,
the defendant bears the burden of showing that the
proffered evidence overcomes the presumption, inher-
ent in § 54-86f, that evidence of the sexual conduct of
a [sexual assault] victim is inadmissible and satisfies
the statute’s requirement that only evidence relevant
to the case, rather than evidence relevant merely to
demonstrate the unchaste character of the victim, be
admissible.’’ (Internal quotation marks omitted.) Id.
‘‘[A]n offer of proof should contain specific evidence
rather than vague assertions and sheer speculation.’’
(Internal quotation marks omitted.) State v. Martinez,
295 Conn. 758, 771, 991 A.2d 1086 (2010).
Here, the defendant’s offer of proof that C’s sexual
conduct was relevant was that C tested positive for
chlamydia while the defendant ‘‘had never been diag-
nosed as having chlamydia.’’ The defendant’s attorney
subsequently admitted to the trial court, however, that
the defendant had never actually been tested for chla-
mydia. Furthermore, the defendant offered no evidence
to suggest or establish that C had been engaged in
sexual conduct with someone other than the defendant
beyond his broad assertions that C ‘‘had a boyfriend’’
and that there were issues of credibility.8 Accordingly,
it is clear that the trial court acted well within its discre-
tion when it denied the defendant’s motion for lack of a
good faith basis without holding an evidentiary hearing.
III
The defendant also claims that the trial court abused
its discretion when it refused to allow him to cross-
examine C and J about a number of instances reflected
in records from the department where C and J ‘‘denied
any issues or concerns in the home.’’ We disagree.
The following additional facts are relevant to our
resolution of this claim. Prior to the commencement of
trial, the defendant filed a motion for production and
inspection in camera of the department records. After
considering the defendant’s offer of proof at the motion
hearing on July 21, 2010, the court denied the motion
on the ground that the defendant had not met his burden
of showing that the records contained exculpatory
material.9
At trial, the defendant made a second offer of proof
prior to the testimony of C on July 26, 2010. The court
agreed to review the department records with respect
to two incidents that occurred in October, 2000, and
May, 2006. The court informed the defendant that he
could not question C at that time regarding the depart-
ment records but, ‘‘if necessary,’’ C and J could be
recalled, ‘‘if needed, solely for the purpose of [the defen-
dant] cross-examining them with respect to that one
area: their prior denials.’’ Thereafter, on July 29, 2010,
the court informed the parties that it found two pieces
of potentially exculpatory evidence in the department
records and ordered those ‘‘small portions’’ of the
record, appropriately redacted, distributed to each side.
That same day, the defendant attempted to recall the
victims to the witness stand to ‘‘address the issues as
far as the [department] comments and whether or not
there was exculpatory evidence and get that on the
record.’’ The state objected, arguing that it was ‘‘cumula-
tive with the state’s direct examination’’ of the victims
as well as ‘‘cumulative to their cross-examinations.’’ The
court sustained the state’s objection to the defendant’s
request to recall the victims to testify and found that
the proposed testimony would be cumulative of other
evidence of a similar quality and quantity already
adduced in this case.’’
‘‘Relevant evidence may be excluded if its probative
value is outweighed by the danger of unfair prejudice
or surprise, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time
or needless presentation of cumulative evidence. . . .
Because of the difficulties inherent in this balancing
process, the trial court’s decision will be reversed only
whe[n] abuse of discretion is manifest or whe[n] an
injustice appears to have been done. . . . On review
by this court, therefore, every reasonable presumption
should be given in favor of the trial court’s ruling.’’
(Citation omitted; internal quotation marks omitted.)
State v. Morquecho, 138 Conn. App. 841, 853–54, 54 A.3d
609, cert. denied, 307 Conn. 941, 56 A.3d 948 (2012).
In the present case, the defendant claims that the
evidence he sought to elicit from the victims ‘‘was not
cumulative because it constituted new material relevant
to the critical issue in this case, the credibility of the
[victims].’’ The transcript of the proceedings reveals,
however, that the victims already had ‘‘testified that
they had been questioned by their mother on approxi-
mately five occasions as to whether anybody had ever
inappropriately touched them and they admitted that
they denied that to their mother,’’10 and that they each
‘‘admitted that during the [department] investigation
. . . they never told anyone that [the defendant] inap-
propriately touched them.’’ Accordingly, we conclude
that the court did not abuse its discretion in refusing
to allow the defendant to recall his daughters in order
to question them about their statements in the depart-
ment’s records.
IV
The defendant next claims that the court ‘‘violated
[his] due process right to a fair trial by referring to the
crimes with which the defendant had been charged as
crimes exhibiting compulsive sexual criminal behav-
ior.’’11 (Internal quotation marks omitted.) He asserts
that the court’s use of that phrase ‘‘deprived him of the
presumption of innocence, diluted the state’s burden
of proof and reflected that the trial judge was not impar-
tial.’’ We disagree.
The record reveals the following relevant facts. The
court instructed the jury on the permitted use of
uncharged sexual conduct evidence three times during
the trial: (1) immediately prior to C’s testimony;12 (2)
immediately prior to J’s testimony;13 and (3) in its final
instructions.14 The defendant did not object to any of
these three instructions at the time that they were given.
The record is adequate for review, and we assume,
without deciding, that the claim alleged is of constitu-
tional magnitude. We conclude, however, that the
alleged constitutional violation does not clearly exist;
therefore, the defendant’s claim fails to satisfy the third
prong of Golding.15
Our analysis of the defendant’s claim begins with the
applicable standard of review for a claim of instruc-
tional error. ‘‘[T]o determine whether the court’s
instructions were improper, we review the entire charge
to determine if, taken as a whole, the charge adequately
guided the jury to a correct verdict. . . . The pertinent
test is whether the charge, read in its entirety, fairly
presents the case to the jury in such a way that injustice
is not done to either party under the established rules
of law. . . . [I]n appeals involving a constitutional
question, [the standard is] whether it is reasonably pos-
sible that the jury [was] misled.’’ (Internal quotation
marks omitted.) State v. Ciullo, 140 Conn. App. 393,
409, 59 A.3d 293, cert. granted on other grounds, 308
Conn. 919, 62 A.3d 1133 (2013).
‘‘[P]ublic policy considerations militate in favor of
recognizing a limited exception to the prohibition on
the admission of uncharged misconduct evidence in
sex crime cases to prove that the defendant had a pro-
pensity to engage in aberrant and compulsive criminal
sexual behavior.’’ (Emphasis omitted.) State v. DeJesus,
288 Conn. 418, 470, 953 A.2d 45 (2008). That approach,
however, ‘‘does not vest trial courts with carte blanche
to allow the state to introduce any prior sexual miscon-
duct evidence against an accused in sex crime cases.
. . . [E]vidence of uncharged sexual misconduct is
admissible only if it is relevant to prove that [a] defen-
dant had a propensity or a tendency to engage in the
type of aberrant and compulsive criminal sexual
behavior with which he or she is charged. . . . Accord-
ingly, evidence of uncharged misconduct is relevant to
prove that the defendant had a propensity or a tendency
to engage in the crime charged only if it is: (1) . . .
not too remote in time; (2) . . . similar to the offense
charged; and (3) . . . committed [against] persons sim-
ilar to the prosecuting witness.’’16 (Citation omitted;
emphasis added; internal quotation marks omitted.)
Id., 472–73.
In the present case, the defendant was alleged to have
sexually assaulted his two young daughters repeatedly
over the course of approximately nine years of their
childhood. As our Supreme Court noted in DeJesus,
‘‘because of the unusually aberrant and pathological
nature of the crime of child molestation, prior acts of
similar misconduct . . . are deemed to be highly pro-
bative because they tend to establish a necessary motive
or explanation for an otherwise inexplicably horrible
crime . . . and assist the jury in assessing the probabil-
ity that a defendant has been falsely accused of such
shocking behavior.’’ (Citations omitted.) Id., 469–70.
Accordingly, it is clear that the offenses that the defen-
dant was charged with were of a compulsive, sexual
nature. Despite the defendant’s assertion that the
court’s cautionary instructions ‘‘suggested [that] the
defendant had a propensity to engage in aberrant, com-
pulsive sexual criminal behavior,’’ a review of the tran-
scripts reveals otherwise. In fact, the instructions
served to caution the jury that it was going to be hearing
uncharged sexual misconduct evidence, and that this
evidence was to be introduced for the very limited pur-
pose of showing that the defendant may have a propen-
sity to engage in aberrant and compulsive sexual
misconduct. The court also cautioned the jury repeat-
edly that ‘‘evidence of this criminal behavior is not
sufficient proof to prove that the defendant committed
the allegations that are charged here, so that you can’t
convict him on this evidence alone.’’ We therefore con-
clude that the court’s instructions to the jury on the
use of uncharged sexual misconduct did not infringe
upon any of the defendant’s constitutional rights, and
therefore fails to satisfy the third prong of Golding.
V
Finally, the defendant claims that the court improp-
erly concluded that the adverse spousal testimony privi-
lege, codified at General Statutes (Rev. to 2003) § 54-
84a,17 applied in this case, and allowed the state to
introduce into evidence text messages sent between
the defendant and his former wife, C.H.H. We are not
persuaded.
The following additional facts are relevant to this
claim. During the testimony of C.H.H. at trial, the state
sought to introduce into evidence approximately forty
text messages sent to her by the defendant between
December 2 and 7, 2007. The defendant objected,
arguing, inter alia, that the text messages were pro-
tected by the marital communications privilege.18 The
state urged the court to adopt a child abuse exception
to the privilege on public policy grounds. The court
agreed with the state and ruled that the policy behind
the child abuse exception in General Statutes (Rev. to
2003) § 54-84a applied with equal force to the common-
law marital communications privilege. Accordingly, the
court overruled the defendant’s objection and permitted
the text messages to enter into evidence.
To the extent that a trial court’s admission of evi-
dence is based on a statutory interpretation, our stan-
dard of review is plenary. State v. Apt, 146 Conn. App.
641, 646, 78 A.3d 249 (2013), cert. granted on other
grounds, 311 Conn. 902, 83 A.3d 604 (2014). We review
a trial court’s decision to admit or exclude evidence, if
premised on a correct view of the law, for an abuse of
discretion. State v. Heredia, 139 Conn. App. 319, 330,
55 A.3d 598 (2012), cert. denied, 307 Conn. 952, 58 A.3d
975 (2013). Here, however, we need not decide whether
the court properly interpreted and applied § 54-84a or
if the admission into evidence of the text messages
between the defendant and C.H.H. was an abuse of
discretion. Even if we assume that the texts were inad-
missible, the error was harmless.
‘‘[T]he appellate harmless error doctrine is rooted
in [the] fundamental purpose of our criminal justice
system—to convict the guilty and acquit the innocent.
The harmless error doctrine recognizes the principle
that the central purpose of a criminal trial is to decide
the factual question of the defendant’s guilt or inno-
cence . . . and promotes public respect for the crimi-
nal process by focusing on the underlying fairness of
the trial rather than on the virtually inevitable presence
of immaterial error. . . . When an improper eviden-
tiary ruling is nonconstitutional in nature, it is the defen-
dant’s burden to demonstrate that such an error was
harmful.’’ (Citations omitted; internal quotation marks
omitted.) State v. Maner, 147 Conn. App. 761, 772, 83
A.3d 1182, cert. denied, 311 Conn. 935, A.3d
(2014). ‘‘In order to establish the harmfulness of a trial
court ruling, the defendant must show that it is more
probable than not that the improper action affected the
result. . . . The question is whether the trial court’s
error was so prejudicial as to deprive the defendant of
a fair trial, or, stated another way, was the court’s ruling,
though erroneous, likely to affect the result?’’ (Internal
quotation marks omitted.) State v. Martinez, 143 Conn.
App. 541, 568, 69 A.3d 975, cert. granted on other
grounds, 310 Conn. 909, 76 A.3d 625 (2013). ‘‘[A]ny error
in the admission of evidence does not require reversal
of the resulting judgment if the improperly admitted
evidence is merely cumulative of other validly admitted
testimony.’’ (Internal quotation marks omitted.) Pren-
tice v. Dalco Electric, Inc., 280 Conn. 336, 358, 907 A.2d
1204 (2006), cert. denied, 549 U.S. 1266, 127 S. Ct. 1494,
167 L. Ed. 2d 230 (2007).
In the present case, the admission of the defendant’s
text messages to C.H.H. did not substantially affect the
jury’s verdict because similar text messages between
the defendant and his daughter, C, already were in evi-
dence. Despite some minor differences in the specific
content of the text messages, the defendant’s messages
to his wife and his daughter contained similar inculpa-
tory statements.19 The defendant has made no claim
that the text messages sent between himself and his
daughter, C, were privileged communications, and the
jury was free to consider them when reaching its ver-
dict. We therefore conclude that the defendant’s text
messages to C.H.H. were cumulative of his text mes-
sages to C and, therefore, their admission was harmless.
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 abuse and the crime of risk of injury to a child, we decline
to use the defendant’s full name or to identify the victims or others through
whom the victims’ identities may be ascertained. See General Statutes
§ 54-86e.
1
The defendant and C.H.H. were married at the time the text messages
were sent.
2
The court appointed standby counsel, who periodically assisted the
defendant during the proceedings.
3
Under Golding, ‘‘a defendant can prevail on a claim of constitutional
error not preserved at trial only if all of the following conditions are met:
(1) the record is adequate to review the alleged claim of error; (2) the claim
is of constitutional magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation clearly exists and clearly deprived
the defendant of a fair trial; and (4) if subject to harmless error analysis,
the state has failed to demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt. In the absence of any one of these
conditions, the defendant’s claim will fail.’’ (Emphasis omitted; footnote
omitted.) State v. Golding, supra, 213 Conn. 239–40.
4
‘‘[J]ury impartiality is a core requirement of the right to trial by jury
guaranteed by the constitution of Connecticut, article first, § 8, and by the
sixth amendment to the United States constitution. . . . In essence, the
right to jury trial guarantees to the criminally accused a fair trial by a panel
of impartial, indifferent jurors.’’ (Internal quotation marks omitted.) State
v. Ciullo, 140 Conn. App. 393, 417–18, 59 A.3d 293, cert. granted on other
grounds, 308 Conn. 919, 62 A.3d 1133 (2013).
5
Ralls testified as follows:
‘‘The Court: So, Ms. Ralls, this is what was reported to me, and correct
me if I’m wrong, okay? It was reported to me that yesterday—I believe it
was yesterday; is that correct?
‘‘[Ralls]: Yes.
‘‘The Court: Okay. Yesterday, you had walked outside the employee exit
of this building and the jurors were on a break outside, and as you were
walking by them, you overheard one of the jurors or more than one of the
jurors say something. Is what I understand correct so far?
‘‘[Ralls]: To some degree, yes, Your Honor.
‘‘The Court: Okay. So, tell me—correct what I just said.
‘‘[Ralls]: Well, as I was walking out of the employee entrance to go to
lunch, there were two jurors sitting at the picnic table. I overheard someone
make mention to the cross-examination of the case. Your Honor, I did not
hear any specifics. I did not hear any details of the conversation. I immedi-
ately began to walk toward [an individual’s] vehicle, as he was giving me
a ride to lunch. That’s the extent of my—of what I heard, Your Honor.
‘‘The Court: Okay. So, you just heard a reference to cross-examination,
but—
‘‘[Ralls]: Yes.
‘‘The Court:—but no details about cross-examination?
‘‘[Ralls]: No. No, Your Honor.
‘‘The Court: Okay.
‘‘[Ralls]: No, not at all.
‘‘The Court: All right.
‘‘[Ralls]: Just a reference.
‘‘The Court: Just a reference. And that was one juror—
‘‘[Ralls]: That was—
‘‘The Court:—standing in the presence of another or sitting in the presence
of another.
‘‘[Ralls]: Standing in the presence of another.
‘‘The Court: Okay. All right. Okay. Well, thank you. I just wanted to get
that on the record, and I appreciate you coming into court and giving that
information to us. Thank you.’’
6
The defendant was represented by counsel during this proceeding.
7
General Statutes § 54-86f provides in relevant part: ‘‘In any prosecution
for sexual assault under sections 53a-70, 53a-70a, and 53a-71 to 53a-73a,
inclusive, no evidence of the sexual conduct of the victim may be admissible
unless such evidence is (1) offered by the defendant on the issue of whether
the defendant was, with respect to the victim, the source of semen, disease,
pregnancy or injury, or (2) offered by the defendant on the issue of credibility
of the victim, provided the victim has testified on direct examination as to
his or her sexual conduct, or . . . (4) otherwise so relevant and material
to a critical issue in the case that excluding it would violate the defendant’s
constitutional rights. . . .’’
8
The following colloquy occurred between the court and defense counsel:
‘‘The Court: Before I hear from [the prosecutor], what evidence does the
defense have that victim C had sexual conduct or sexual intercourse or
some sexual relations with another individual?
‘‘[Defense Counsel]: We don’t. We know—for the record, we know she
had had a boyfriend. She’s denied it, and in many cases that’s what we get.
But the allegation is that the sexual relations with the defendant ended, I
believe, in . . . . at least the summer of [2007]. The allegations were made,
depending on how the evidence is looked at [in] . . . late November, [2007],
so approximately five or six months earlier, relations had stopped. I’m not
an expert on how long chlamydia stays in the system, how long it takes to
show. We would like to make some inquiries. [An expert] is going to testify,
and I believe she is going to testify about that. We can certainly ask her in
terms of the source of chlamydia. We know [C] had a boyfriend, and she’s
denied having sex with that boyfriend, but if she testifies she’s having a
relationship, on the issue of credibility, that’s also a forum I think we can
go into.
‘‘Again, the state has all the ammunition and evidence on [its] side right
now. We’re just looking for an opportunity to, we think, we comply with
the statute [§ 54-86f] in terms of [subdivisions (1) and (2)] and possibly [(4)]
as well. We made an offer of proof and argued at some point in time that
the girls made these complaints because they were upset that the defendant
was the disciplinarian. They have been physically abusive and verbally abu-
sive. He had not allowed them to do certain things, and much more so than
the mother, and that goes to motive and bias and prejudice for the fourth
prong as well, Your Honor, so for those reasons we would ask we be allowed
to inquire.’’
9
The defendant was represented by counsel during the motion hearing.
10
The victims’ mother testified that these denials took place over the
course of ten years.
11
The defendant raised a general due process claim, and his brief contains
no analysis under the state constitution. We therefore consider any such
claim abandoned. See Frauenglass & Associates, LLC v. Enagbare, 149
Conn. App. 103, 111 n.7, A.3d (2014).
12
The court instructed the jury as follows: ‘‘You’re now going to hear
evidence of other misconduct or crimes committed by the defendant which
occurred prior to May 23 of 2003. And I need to tell you that that’s being
admitted for a very limited purpose, and that limited purpose is as follows:
‘‘In a criminal case, when a defendant is charged with a crime exhibiting
aberrant or compulsive criminal sexual behavior, evidence of his commission
of another offense or offenses is admissible and may be considered by you
for its bearing on any matter which—for which it is relevant. Evidence of
a prior offense on its own is not, however, sufficient to prove the defendant
guilty of the crimes charged in the information.
‘‘Bear in mind as you consider this evidence that at all times the state
has the burden of proving that the defendant committed each of the elements
of the offense charged in the information. I remind you, he is not on trial
for any act, conduct, or offense not charged in the information.
‘‘So, the misconduct evidence prior to May of 2003—23, 2003, is being
introduced because it’s allowed by our case law to show that the defendant
has a propensity to engage in aberrant, compulsive, sexual criminal behavior,
and for that purpose only.’’
13
The court instructed the jury as follows: ‘‘Ladies and gentlemen, just
like with the prior witness, you’re going to hear now what we call misconduct
evidence, which is uncharged criminal behavior on the part of the defendant.
And that would be behavior that occurred before May 23 of 2003, just
like with the other witness. And it’s being introduced for a very limited
purpose here.
‘‘And that limited purpose is, as you have previously heard, is admissible
and considered for its bearing on the issue of the defendant’s propensity
to commit crimes of an aberrant and compulsive sexual behavior. And I
just want to caution you that evidence of this criminal behavior is not
sufficient proof to prove that the defendant committed the allegations that
are charged here, so that you can’t convict him on this evidence alone.
‘‘This evidence, however, is being introduced to show that he has that
propensity to commit these crimes, and you have to decide whether or not
the remaining evidence that you hear here of offenses and activities after
May 23, 2003, constitute all of the elements of the crimes that are [the
subject of the] trial here: the three crimes that are charged against the
defendant for activities with [J].’’
14
The court instructed the jury as follows: ‘‘All right. Now, I’ll speak about
the evidence of other criminal sexual behavior of the defendant not charged
in the information. In a criminal case in which the defendant is charged
with a crime exhibiting aberrant or compulsive, sexual criminal behavior,
evidence of the defendant’s commission of another offense or offenses is
admissible and may be considered for its bearing on any matter to which
it is relevant. Evidence of a prior offense on its own is not, however, sufficient
to prove the defendant guilty of the crimes charged in the information.
‘‘Bear in mind as you deliberate on the evidence that at all times the state
has the burden of proving that the defendant committed each of the elements
of the offense charged in the information. I remind you that the defendant
is not on trial for any act, conduct, or offense not charged in the information.’’
15
In the alternative, the defendant asks us to invoke our supervisory
powers to review his claim. ‘‘Appellate courts possess an inherent supervi-
sory authority over the administration of justice. . . . Supervisory powers
are exercised to direct trial courts to adopt judicial procedures that will
address matters that are of utmost seriousness, not only for the integrity
of a particular trial but also for the perceived fairness of the judicial system
as a whole.’’ (Internal quotation marks omitted.) State v. Milner, 130 Conn.
App. 19, 33, 21 A.3d 907 (2011), appeal dismissed, 309 Conn. 744, 72 A.3d
1068 (2013). This case does not present the type of extraordinary circum-
stances for which our supervisory powers are reserved. Accordingly, we
decline to exercise our supervisory powers to review this claim.
16
Section 4-5 of the Connecticut Code of Evidence was subsequently
amended, effective in 2012, to conform with the principles enunciated in
State v. DeJesus, supra, 288 Conn. 474. This section now provides in relevant
part that ‘‘[e]vidence of other sexual misconduct is admissible in a criminal
case to establish that the defendant had a tendency or a propensity to engage
in aberrant and compulsive sexual misconduct if: (1) the case involves
aberrant and compulsive sexual misconduct; (2) the trial court finds that
the evidence is relevant to a charged offense in that the other sexual miscon-
duct is not too remote in time, was allegedly committed upon a person
similar to the alleged victim, and was otherwise similar in nature and circum-
stances to the aberrant and compulsive sexual misconduct at issue in the
case; and (3) the trial court finds that the probative value of the evidence
outweighs its prejudicial effect.’’ Conn. Code Evid. § 4-5 (b).
17
General Statutes (Rev. to 2003) § 54-84a provides: ‘‘If any person on
trial for crime has a husband or wife, he or she shall be a competent witness
but may elect or refuse to testify for or against the accused, except that
either spouse who has received personal violence from the other or is the
spouse of one who is charged with any violation of any of sections 53-20,
53-21, 53-23, 53-304, 53a-70, 53a-70a, 53a-71 and 53a-83 to 53a-88, inclusive,
may, upon his or her trial for offenses arising out of such personal violence
or from violation of the provisions of any of said sections, be compelled to
testify in the same manner as any other witness.’’
We note that following the defendant’s trial, § 54-84a was substantially
revised. See Public Acts 2011, No. 11-152, § 14. Section 54-84a (b) now
provides in relevant part: ‘‘The testimony of a spouse may be compelled,
in the same manner as for any other witness, in a criminal proceeding
against the other spouse for . . . bodily injury, sexual assault, risk of injury
pursuant to section 53-21, or other violence attempted, committed or threat-
ened upon the minor child of either spouse, or any minor child in the care
or custody of either spouse.’’
18
The defendant also argued that C.H.H. ‘‘lacked personal knowledge,’’
and that the ‘‘text messages were not relevant and would be prejudicial of
a fair trial.’’ The trial court rejected both of these grounds, and the defendant
has not challenged that ruling on appeal.
19
The defendant attempts to distinguish the text messages by arguing that
‘‘the nature of the text messages between the defendant and [C], although
somewhat inculpatory, were consistent with the defendant’s trial testimony’’
while the communications between the defendant and C.H.H. ‘‘can fairly be
categorized as an admission of guilt,’’ as he ‘‘confirmed the allegations made
by [C] and [J].’’ In support of his argument, the defendant points to his text
message to C.H.H. in which he admits, ‘‘Girls are not liars.’’ A review of the
record reveals, however, that a jury reasonably could read the texts sent
to C as a confirmation of the allegations made against him. These text
messages include statements such as: ‘‘Pl[ease] [I] swear [I] never meant
to hurt [you]! I will get help and make sure [I] never hurt any of [you] again
in any way!’’; ‘‘Never wanted to hurt any of [you] girls! Pl[ease] forgive me!’’;
and, ‘‘I am so very sorry [C]! I wish [I] was a better dad to you!’’