State v. Gonzalez , 167 Conn. App. 298 ( 2016 )

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STATE OF CONNECTICUT v. JUAN
CARLOS GONZALEZ
(AC 36656)
Alvord, Prescott and Mihalakos, Js.
Argued May 24—officially released August 2, 2016
(Appeal from Superior Court, judicial district of
Tolland, geographical area number nineteen, Graham,
J.)
Elizabeth Knight Adams, assigned counsel, for the
appellant (defendant).
Nancy L. Walker, deputy assistant state’s attorney,
with whom, on the brief, were Matthew C. Gedansky,
state’s attorney, and Elizabeth C. Leaming, senior assis-
tant state’s attorney, for the appellee (state).
Opinion
MIHALAKOS, J. The defendant, Juan Carlos Gonza-
lez, appeals from the judgment of conviction, rendered
after a jury trial, of two counts of sexual assault in a
cohabiting relationship in violation of General Statutes
§ 53a-70b, one count of assault in the second degree in
violation of General Statutes § 53a-60 (a) (2), and two
counts of criminal violation of a protective order in
violation of General Statutes § 53a-223. On appeal, the
defendant claims that the court abused its discretion
by (1) denying his motion for a mistrial, (2) ordering
him to wear shackles throughout the trial except when
testifying, and (3) admitting evidence of his prior
uncharged misconduct. We disagree and, accordingly,
affirm the judgment of conviction.
The jury reasonably could have found the following
facts. The defendant and the victim1 immigrated to the
United States in 1999, settling in Connecticut. They had
three children together, the oldest of whom was twelve
years old at the time of trial. The defendant became
more controlling as the relationship progressed, and
eventually became sexually and physically abusive. In
the evening of December 12, 2012, the victim went to
the Vernon Police Department to file a complaint
against the defendant for physically abusing her. She
also spoke briefly about past sexual abuse. The defen-
dant then was arrested and charged with second degree
assault and breach of the peace. Following his arrest,
a protective order was issued on December 13, 2012,
ordering the defendant not to harass or assault the
victim, to stay away from her home, and not to contact
her. The substitute information subsequently omitted
the breach of the peace count but included four counts
of sexual assault in a cohabiting relationship and viola-
tion of a protective order. The two counts of violation
of a protective order counts were added after the defen-
dant sent a letter to the victim, and asked several indi-
viduals to contact the victim on his behalf in violation
of the protective order.
The jury found the defendant guilty of two counts of
sexual assault in a cohabiting relationship in violation
of § 53a-70b, one count of assault in the second degree
in violation of § 53a-60 (a) (2), and two counts of crimi-
nal violation of a protective order in violation of § 53a-
223. It also acquitted the defendant of two additional
counts of sexual assault in a cohabiting relationship in
violation of § 53a-70b. This appeal followed.
I
The defendant contends that the court abused its
discretion by denying his motion for a mistrial after it
first admitted testimony by a police officer that the
defendant, after giving an oral statement to the police,
had refused to sign a sworn, written statement while
in police custody, then reversed itself two days later and
ruled that it would strike the testimony. The defendant
moved for a mistrial, but the court denied the motion
and instead struck the testimony and instructed the
jury to disregard the stricken testimony. The defendant
claims this was an abuse of discretion; we disagree.2
The record reveals the following additional relevant
facts. A police officer testified regarding his questioning
of the defendant. The defendant told the police that he
had gone through his normal morning routine, had a
minor argument with their daughter regarding her cloth-
ing, and had not seen any injuries on the victim. When
told that the victim had made a complaint, he responded
that she was crazy. The state then asked, ‘‘[w]as he
willing to give a statement that was sworn and in writ-
ing?’’ The police officer responded that ‘‘[h]e did not
give me a sworn written statement.’’
We first set forth our standard of review and the
relevant law. ‘‘In our review of the denial of a motion
for mistrial, we have recognized the broad discretion
that is vested in the trial court to decide whether an
occurrence at trial has so prejudiced a party that he or
she can no longer receive a fair trial. The decision of
the trial court is therefore reversible on appeal only if
there has been an abuse of discretion.’’ (Internal quota-
tion marks omitted.) State v. Anderson, 255 Conn. 425,
435, 773 A.2d 287 (2001). ‘‘If curative action can obviate
the prejudice, the drastic remedy of a mistrial should
be avoided.’’ (Internal quotation marks omitted.) State
v. Luther, 114 Conn. App. 799, 805, 971 A.2d 781, cert.
denied, 293 Conn. 907, 978 A.2d 1112 (2009). ‘‘[A]s a
general matter, the jury is presumed to follow the
court’s curative instructions in the absence of some
indication to the contrary.’’ State v. Grenier, 257 Conn.
797, 810, 778 A.2d 159 (2001). Where an ‘‘evidentiary
impropriety is not constitutional in nature, the defen-
dant bears the burden of demonstrating harm.’’ Id., 806–
807. ‘‘[T]he burden is on the defendant to establish
that, in the context of the proceedings as a whole, the
stricken testimony was so prejudicial, notwithstanding
the court’s curative instructions, that the jury reason-
ably cannot be presumed to have disregarded it.’’ State
v. McIntyre, 250 Conn. 526, 534, 737 A.2d 392 (1999).
The defendant argues that State v. Grenier, supra,
257 Conn. 797, is applicable to the present case. In
Grenier, two experts testified regarding the victim’s
credibility, on which the case rested, and the court
overruled the defendant’s objection to the testimony.
Id., 802, 804, 807. Following closing arguments, the
court, in its general instructions, stated that the jury
should not rely on any witnesses’ opinions on the vic-
tim’s credibility. Id., 805, 810. Our Supreme Court found
reversible error. Id., 812. It concluded that the improp-
erly admitted testimony had an indelible impact on all
of the subsequent testimony and argument, that the
opinions of two experts on the central issue in the case
were highly prejudicial, and that the instruction was
ambiguous. Id., 808–11.
In the present case, in contrast, the court reversed
itself before the defendant took the stand, after the
victim had taken the stand, and before any closing argu-
ments; it therefore had the potential to influence much
less of the evidence than in Grenier. In addition, the
police officer’s statement did not have nearly the poten-
tial prejudicial impact of an expert opinion regarding
credibility. Furthermore, the court expressly reversed
itself and specifically stated what testimony was
stricken. The court, therefore, properly exercised its
discretion by denying the defendant’s motion for a
mistrial.
II
The defendant next claims that the court abused its
discretion by ordering that he wear leg shackles
throughout the trial except when testifying. He asserts
that the court’s decision was improper because the
reason for shackling the defendant was not the defen-
dant’s behavior, but, rather, a shortage of marshals. He
further contends that, although the court took appro-
priate steps to hide the leg shackles from the jury, he
should not be required to prove that the jury was aware
of the leg shackles.
Our Supreme Court set out the standard of review
and pertinent law for a shackling claim in State v.
Tweedy, 219 Conn. 489, 506, 594 A.2d 906 (1991): ‘‘In
reviewing a shackling claim, our task is to determine
whether the court’s decision to employ restraints con-
stituted a clear abuse of discretion. . . . A record in
some fashion disclosing the justification for using
restraints . . . is essential to meaningful appellate
review of a shackling claim.’’ (Citations omitted.) ‘‘In
order for a criminal defendant to enjoy the maximum
benefit of the presumption of innocence, our courts
should make every reasonable effort to present the
defendant before the jury in a manner that does not
suggest, expressly or impliedly, that he or she is a dan-
gerous character whose guilt is a foregone conclusion.
. . . The negative connotations of restraints, neverthe-
less, are without significance unless the fact of the
restraints comes to the attention of the jury. [Where]
the . . . record is devoid of competent evidence that
the jury was aware of the defendant’s shackles at any
time during his trial, it is clear beyond a reasonable
doubt that the presumption of innocence was not
abridged by the court’s decision to shackle him.’’ (Cita-
tions omitted.) Id., 508; see also State v. Brawley, 321
Conn. 583, 588, A.3d (2016). ‘‘The defendant bears
the burden of showing that he has suffered prejudice by
establishing a factual record demonstrating that the
members of the jury knew of the restraints.’’ (Internal
quotation marks omitted.) State v. Brawley, supra, 588.
The defendant’s claim in the present case fails both
prongs of the Tweedy analysis. The court set out its
reasons for ordering the defendant to wear shackles
on the record: the shortage of marshals, the proximity
of multiple exits from the courtroom into a busy public
area, the defendant’s high bond, his motivation to flee
to avoid deportation, and the defendant’s prior behavior
at a family court hearing. We see nothing in Tweedy or
its progeny to suggest that these reasons are insuffi-
cient. See State v. Taylor, 63 Conn. App. 386, 390, 396,
776 A.2d 1154 (multiple doorways leading to crowded
public space relevant to shackling), cert. denied, 257
Conn. 907, 777 A.2d 687, cert. denied, 534 U.S. 978, 122
S. Ct. 406, 151 L. Ed. 2d 308 (2001). In addition, the
record is replete with evidence that the court took steps
to hide the leg shackles from the jury by asking the
clerk to view the defendant from the jury box and see if
the shackles were visible, by ensuring that the shackles
were muffled, by permitting the defendant to be unre-
strained when testifying, and by instructing the defen-
dant’s attorney to alert the court if he thought the jury
detected the shackles. The defendant has not pointed
to any competent evidence in the record suggesting
that the jury was aware of the shackles, and, under
Connecticut law, the defendant bears the burden of
demonstrating that the jury was aware of the shackles.3
The court’s decision to keep the defendant shackled
and the measures it took to hide the shackles from the
jury therefore did not constitute an abuse of discretion.
III
The defendant’s final claim is that the court abused
its discretion by admitting evidence of the defendant’s
prior uncharged misconduct directed against the victim.
The defendant asserts that the prejudicial effect of this
evidence, which consisted of incidents of prior physical
abuse and prior sexual abuse, as propensity evidence
outweighed any probative value as evidence of intent,
motive, and a system of criminal activity, for which it
was admitted. The state responds that the evidence
was properly admitted, and that the defendant failed
to assert, and the record does not demonstrate, that
the admission of the evidence was harmful.
We begin with the standard of review and the govern-
ing legal principles. In order to be admissible, evidence
of prior uncharged misconduct of a nonsexual nature
must be relevant and material for a nonpropensity pur-
pose, such as to prove intent, motive, or a system of
criminal activity. State v. Kalil, 314 Conn. 529, 539–40,
107 A.3d 343 (2014). Its probative value must also out-
weigh any prejudicial effect. Id., 540. Evidence of prior
sexual misconduct, on the other hand, may be admitted
to prove propensity in a sex crime case pursuant to our
Supreme Court’s holding in State v. DeJesus, 288 Conn.
418, 476, 953 A.2d 45 (2008), if ‘‘(1) the trial court finds
that such evidence is relevant to the charged crime in
that it is not too remote in time, is similar to the offense
charged and is committed upon persons similar to the
prosecuting witness; and (2) the trial court concludes
that the probative value of such evidence outweighs its
prejudicial effect.’’ The trial court must still determine
that the probative value outweighs any prejudicial
effect, and provide an appropriate limiting instruction.
See id., 476–77.
Where evidence has been improperly admitted, and
the impropriety is not constitutional in nature, the
defendant bears the burden on appeal of proving that
its admission was harmful. State v. Eleck, 314 Conn.
123, 129, 100 A.3d 817 (2014); In re James O., 160 Conn.
App. 506, 527, 127 A.3d 375, cert. granted on other
grounds, 319 Conn. 956, 125 A.3d 533 (2015). We review
the court’s findings regarding relevance and the
weighing of probative value versus prejudicial effect
for abuse of discretion. State v. Kalil, supra, 314
Conn. 540–41.
The following additional facts are relevant to our
decision. In the present case, the charged nonsexual
assault was that, in December of 2012 the defendant
had pushed the victim against a wall, punched her in
the face, then proceeded to beat her on the back, arm,
and neck with a belt, leaving marks. There were four
charged sexual assaults essentially arising out of two
incidents of conduct. The most recent sexual assaults
occurred after a party, also in December of 2012, at
which the victim had not behaved the way the defendant
wished, failing to show enthusiasm regarding the defen-
dant’s purchase of a dilapidated house in need of signifi-
cant repair. After everyone had left, the defendant
forcibly removed the victim’s clothes, pinned her down
with a bat on her neck, and forcibly raped her vaginally
and anally while she told him to stop. The earlier
charged sexual assaults, in November 2012, of which
the jury acquitted the defendant, were allegedly similar.
According to the victim’s testimony, while the children
slept the defendant took the victim to the basement,
threw her on a weight bench, placed a weighted bar
on her neck, forcibly removed her clothing, and raped
her vaginally and anally. As she protested, the defendant
yelled at her to shut up, and when he had finished he
laughed cynically and left her there.
The state offered the following uncharged miscon-
duct evidence to the jury. The prior physical abuse
evidence consisted of the victim’s testimony that the
defendant had previously left marks on her body multi-
ple times, and would tell her to wear clothing that would
hide the marks, or would forbid her from leaving the
house if the marks were too big for her to hide. She
also testified that he had beaten her when she was
pregnant, but had been careful to avoid her belly, and
had regularly thrown her to the floor or against the
wall. In June of 2005, the defendant had punched her
in the back of the head, then threatened her with a
knife, after which she made a 911 call. She testified
that she did not call the police again after the June,
2005 incident out of fear, and that the abuse was ongo-
ing from then until December of 2012.
The prior sexual abuse evidence consisted of the
victim’s testimony that in 2006 the defendant locked
their daughter in her room, then placed a sock in the
victim’s mouth and anally and vaginally raped her while
pinning her down on their bed. She did not go to a
doctor, despite anal bleeding, or tell anyone out of fear.
She testified that several other rapes occurred and that,
at one point, a nurse noticed bruising caused by the
rapes and asked her about it. At that point, she told
the nurse and her doctor. She also testified regarding
another specific incident which occurred on a camping
trip. The defendant pulled her out of the camper where
the children were sleeping, drove her to another part of
the campsite, and raped her anally, orally, and vaginally.
The victim also testified in general terms regarding their
relationship, stating that the defendant had been ini-
tially kind, then had grown worse over time. She testi-
fied that early in the abuse he would apologize
afterwards, but eventually the apologies ceased.
The defendant objected to the state’s proposed
uncharged misconduct evidence. The court overruled
the objection and permitted the state to present the
evidence. Before the state presented the evidence to
the jury, the court provided limiting instructions that
the evidence was being admitted to prove intent,
motive, and a system of criminal activity, and could not
be used for propensity.4
‘‘When instances of a criminal defendant’s prior mis-
conduct involve the same victim as the crimes for which
the defendant presently is being tried, those acts are
especially illuminative of the defendant’s motivation
and attitude toward that victim, and, thus, of his intent
as to the incident in question.’’ (Internal quotation
marks omitted.) State v. Kantorowski, 144 Conn. App.
477, 488, 72 A.3d 1228, cert. denied, 310 Conn. 924,
77 A.3d 141 (2013). Likewise, an escalating pattern of
violence directed at a specific individual is relevant to
prove a system of criminal activity on the part of the
defendant. See State v. Vega, 259 Conn. 374, 397–98,
788 A.2d 1221, cert. denied, 537 U.S. 836, 123 S. Ct. 152,
154 L. Ed. 2d 56 (2002).
‘‘Although relevant, evidence may be excluded by the
trial court if the court determines that the prejudicial
effect of the evidence outweighs its probative value.
. . . Of course, [a]ll adverse evidence is damaging to
one’s case, but it is inadmissible only if it creates undue
prejudice so that it threatens an injustice were it to be
admitted. . . . The test for determining whether evi-
dence is unduly prejudicial is not whether it is damaging
to the defendant but whether it will improperly arouse
the emotions of the jur[ors].’’ (Internal quotation marks
omitted.) State v. Pena, 301 Conn. 669, 675–76, 22 A.3d
611 (2011). Where ‘‘[t]he uncharged misconduct evi-
dence [is] not as extreme as the charged crime [and]
. . . [t]he court also [gives] a limiting instruction imme-
diately,’’ the prejudicial impact is lessened and the evi-
dence is more likely admissible. State v. Smith, 313
Conn. 325, 342, 96 A.3d 1238 (2014); see State v. Franko,
142 Conn. App. 451, 466, 64 A.3d 807, cert. denied, 310
Conn. 901, 75 A.3d 30 (2013).
In this case, the victim was the target of all prior
uncharged misconduct and the evidence was highly
relevant to motive, intent, and a system of criminal
activity. It demonstrated the place of the charged inci-
dents within the larger history of the defendant’s treat-
ment of the victim, and it showed the defendant’s long-
term use of physical and sexual violence to intimidate
and control the victim. The court limited any potential
prejudicial impact by providing limiting instructions
both when the testimony was presented and in its
charge to the jury. In doing so, it ensured that the jury
would use the prior uncharged misconduct evidence
only for its proper purpose, and, therefore, that the
evidence would not be unfairly prejudicial. See State
v. Grenier, supra, 257 Conn. 810 (jury presumed to
follow curative instructions). Finally, the uncharged
acts were no more inflammatory than the charged acts.
The court, therefore, was within its discretion to deter-
mine that the evidence was relevant to a proper purpose
and that its probative value outweighed its prejudi-
cial effect.5
When instructing the jury regarding the prior sexual
misconduct evidence, the court was not required to
bar the jury from considering whether that evidence
demonstrated a propensity to commit the charged
crimes. See State v. DeJesus, supra, 288 Conn. 476.
Therefore, in evaluating the court’s decision regarding
the probative value versus the prejudicial effect, we
need not consider any prejudice caused by the jury
considering the evidence as propensity evidence. We
conclude that, given its significant probative value, the
court’s limiting instruction, and the fact that the evi-
dence was no more inflammatory than the acts with
which the defendant was charged, the court was well
within its discretion to admit the uncharged sexual mis-
conduct evidence.
Finally, we will briefly discuss the evidence regarding
two incidents which were attenuated in time from the
charged incidents. The physical assault in 2005 and the
sexual assault in 2006 occurred a significant time before
the charged conduct. Attenuation in time is a relevant
consideration for barring uncharged misconduct, but
this evidence, nonetheless, had sufficient probative
value in that these incidents demonstrated the defen-
dant’s escalating abuse of the victim. See State v. Kant-
orowski, supra, 144 Conn. App. 490 n.5 (no lapse of
time has been determined per se too remote). In addi-
tion, rather than being isolated, attenuated incidents,
they marked the start of a continuous pattern of abuse.
The court did not abuse its discretion in admitting
this evidence.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In accordance with our policy of protecting the privacy interest of victims
of sexual abuse, we decline to identify the victim or others through whom
the victim’s identity may be ascertained. See General Statutes § 54-86e.
2
At trial, the defendant claimed that the police officer’s statement was
irrelevant; on appeal, he claims that the testimony was barred by the United
States Supreme Court case of Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct.
2240, 49 L. Ed. 2d 91 (1976), which held that impeachment of a defendant
by evidence of his silence after arrest and receipt of Miranda warnings
violates due process. The record in this case lacks any reference to whether
any warnings were given pursuant to Miranda v. Arizona, 384 U.S. 436,
478–79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), therefore, we are unable to
determine whether a Doyle violation occurred. See State v. Golding, 213
Conn. 233, 239–40, 567 A.2d 823 (1989), modified by In re Yasiel R., 317
Conn. 773, 780–81, 120 A.3d 1188 (2015). We will analyze whether the court
should have granted the defendant’s motion for a mistrial because irrelevant
evidence was admitted. In so doing, we assume, but do not decide, that the
testimony was in fact irrelevant.
3
The defendant suggests that we follow the United States Court of Appeals
for the Fifth Circuit in United States v. Banegas, 600 F.3d 342, 347 (5th Cir.
2010), and shift to the state the burden of demonstrating that the shackles
were not visible to the jury. Our Supreme Court recently dealt with a similar
claim in State v. Brawley, supra, 321 Conn. 591–92 n.3. Our Supreme Court
noted that the Fifth Circuit based its decision on Deck v. Missouri, 544 U.S.
622, 635, 125 S. Ct. 2007, 161 L. Ed. 2d 953 (2005), in which the United States
Supreme Court held that ‘‘where a court, without adequate justification,
orders the defendant to wear shackles that will be seen by the jury, the
defendant need not demonstrate actual prejudice to make out a due process
violation. The State must prove beyond a reasonable doubt that the [shack-
ling] error complained of did not contribute to the verdict obtained.’’ (Inter-
nal quotation marks omitted.) Our Supreme Court concluded that ‘‘Deck
makes clear that a heightened burden falls on the state when the unwarranted
restraints are visible to the jury, and not when, as in Banegas, the record
is silent on the matter.’’ (Emphasis in original.) State v. Brawley, supra, 321
Conn. 592 n.3. It therefore rejected the burden shifting analysis of the Fifth
Circuit in Banegas.
4
The trial court’s limiting instruction regarding the evidence of prior
uncharged physical abuse was as follows: ‘‘Ladies and gentlemen, the evi-
dence that you heard, and you may hear, about the prior physical abuse of
[the victim] by [the defendant] is offered for the sole purpose of proving
intent with regard to the fifth count, charging assault in the second degree,
and proving both motive and a system of criminal activity with regard to
counts one through four, charging sexual assault in cohabitation.
‘‘The evidence of—this evidence of prior bad acts or misconduct by [the
defendant] is not being admitted to prove his bad character, propensity, or
criminal tendencies and may not be used for that purpose. Such evidence
is being admitted solely to show intent, motive, and a system of criminal
activity by him with regard to [the victim].’’
The trial court’s limiting instruction regarding the evidence of prior
uncharged sexual abuse was as follows: ‘‘Ladies and gentlemen, the evidence
you’re about to hear concerning prior sexual abuse of [the victim] by [the
defendant] prior to November of 2012 is offered for the sole purpose of
proving motive and a system of criminal activity with regard to counts one
through four charging sexual assault in cohabitation.
‘‘This evidence of prior bad acts or misconduct by [the defendant] is not
being admitted to prove his bad character, propensity, or criminal tendencies
and may not be used for that purpose. Such evidence is being admitted
solely to show motive and a system of criminal activity by him with regard
to [the victim].’’
5
In addition, as the state correctly argues, there is an additional require-
ment that the defendant prove that improperly admitted evidence caused
harm. If the evidence had been improperly admitted, the defendant was
further required to demonstrate that its admission likely was not harmless.
This would be a separate inquiry performed in view of the totality of the
evidence presented. The defendant failed to perform this analysis. See In
re James O., supra, 160 Conn. App. 527–28.