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State v. Ralph B.

Appellate Court of Connecticut

January 26, 2016

STATE OF CONNECTICUT
v.
RALPH B. [*]

         Argued September 21, 2015

Page 1254

          Substitute information charging the defendant with the crimes of strangulation in the first degree, strangulation in the second degree, unlawful restraint in the first degree, attempt to commit assault in the first degree, interfering with an emergency call and risk of injury to a child, brought to the Superior Court in the judicial district of Tolland, geographical area number nineteen, where the court, Solomon, J., denied the defendant's motion to modify bond conditions and request to attend a pretrial hearing; thereafter, the court, Kwak, J., denied the defendant's motion to be present at certain pretrial hearings; subsequently, the matter was tried to the jury before Kwak, J.; verdict and judgment of guilty of strangulation in the second degree, unlawful restraint in the first degree, attempt to commit assault in the first degree and risk of injury to a child, from which the defendant appealed to this court; thereafter, the court, Kwak, J., issued an articulation of its decision denying the defendant's motion to be present at certain pretrial hearings.

          Reversed; new trial.

          SYLLABUS

         Convicted of attempt to commit assault in the first degree, unlawful restraint in the first degree, strangulation in the second degree and risk of injury to a child in connection with an incident in which he allegedly attempted to strangle his wife, the defendant appealed to this court. He claimed, inter alia, that his right to a fair trial was violated as a result of the trial court's having refused to permit him to attend certain pretrial hearings that he claimed were critical stages of the proceedings against him. The court initially had denied the defendant's request to be present at a future hearing in which certain motions were to be ruled upon because the motions involved only legal issues pertaining to discovery. Thereafter, the defendant filed a motion to be present at all future hearings. A different trial court denied the defendant's motion on the ground that the prior trial court's ruling was the law of the case. The second trial court then ruled on certain motions in the defendant's absence, including the defendant's motion for in camera review of certain of the complainant's mental health records and the state's motion to admit certain uncharged misconduct evidence. On appeal, the defendant claimed that had he been permitted to attend those hearings, he would have better understood the proceedings and would have been more able to fully participate in his defense.

         Held :

         1. The second trial court improperly denied the defendant his due process right to be present at two pretrial hearings that were critical stages of the proceedings in which his presence would have borne a reasonably substantial relationship to his opportunity to defend himself:

         a. The defendant could have aided his attorney's questioning of a witness, pertaining to the motion for in camera review of certain of the complainant's mental health records, about incidents in which the complainant had blamed the defendant for certain of her own actions, as the defendant knew the witness, he could have been asked to testify about incidents in which the complainant exhibited a tendency to fabricate untruths or harm herself, the defendant and the complainant were the only witnesses to the altercation at issue, and whether the complainant had mental health issues that impacted her ability to recall events or to be truthful was a key concern.

         b. The defendant could have aided his attorney in attempting to preclude from evidence a statement he had made to a Department of Children and Families worker and certain uncharged misconduct, which could have strongly corroborated the state's case and had a significant effect on the jury's view of him, by suggesting arguments to his attorney, disputing or correcting the state's characterization of his actions, and formulating arguments about how the alleged prior misconduct differed from his alleged actions in the present case.

         2. The second trial court's error in refusing to permit the defendant to attend two of the pretrial hearings at issue was not harmless beyond a reasonable doubt: the lack of the complainant's mental health records, the admission of the defendant's prior misconduct, and the lack of an opportunity for him to hear the discussion about certain proffered testimony by a former girlfriend could have affected the outcome of this case, as the complainant was the only witness to the altercation at issue to testify against him, testimony from the complainant and the defendant's former girlfriend about his prior uncharged misconduct may have suggested to the jury that he made a practice of using physical force to intimidate and may have been crucial in convincing the jury of his guilt, and had the complainant's mental health records contained corroboration for the defendant's theory that she had a propensity for fabrication, the state's case would have been weakened further.

         Jeffrey C. Kestenband, for the appellant (defendant).

         Brett R. Aiello, special deputy assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Nicole I. Christie, assistant state's attorney, for the appellee (state).

         Sheldon, Keller and Schaller, Js.

          OPINION

Page 1255

         [162 Conn.App. 585] SCHALLER, J.

         The defendant, Ralph B., appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit assault in the first degree in violation of General Statutes § § 53a-49 and 53a-59 (a) (1), unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a), strangulation in the second degree in violation of General Statutes § 53a-64bb (a), and risk of injury to a child in violation of General Statutes § 53-21 (a) (1). On appeal, the defendant claims: (1) his due process right to a fair trial was violated because he was not permitted to attend three pretrial hearings, which proceeded in

Page 1256

his absence over his objection; (2) the trial court improperly permitted the state to introduce extrinsic evidence on a collateral matter; (3) the conviction of attempt to commit assault in the first degree and unlawful restraint in the first degree should be vacated because § 53a-64bb (b) does not permit someone who is convicted of strangulation in the second degree also to be convicted of assault and unlawful restraint; and (4) the trial court improperly denied him his right to allocution and to present information in mitigation of sentencing. We agree with the defendant regarding his first claim, and, therefore, reverse the judgment of the trial court.

         The jury reasonably could have found the following facts. On January 4, 2012, the defendant was married [162 Conn.App. 586] to L.B. They have one child, I.B., who was three years old on January 4, 2012. On that date, following an argument regarding a possible divorce, the defendant left the home in anger and L.B. put I.B. to bed. She then went to sleep in I.B.'s room, in a bed across from his bed. The defendant returned home and entered I.B.'s room. The defendant turned on a closet light and woke L.B. The defendant then attempted to strangle L.B. with a cord, in the process waking up I.B. L.B. attempted to call 911, but the defendant threw her cell phone into the hallway. They continued to struggle and L.B. pleaded with the defendant to stop, asking him why he was upset. He responded that he had sent her several text messages to which she had not replied. The defendant permitted her to get her cell phone but, as she attempted to show him that she had not received any messages, he came at her with the cord a second time. She dialed 911 and dropped the cell phone on the floor. The defendant continued to choke her; she fought back and, after hearing I.B. call out to her, was able to wrest the cord from the defendant. She took the cord and went to check on I.B. The defendant then again attempted to strangle her with his hands. L.B. escaped and attempted to calm the defendant. When she heard cars outside, she ran downstairs with the cord in her hands. Once she was outside, she saw the police. She threw the cord to the first police officer she saw and told the police that the defendant had tried to kill her with it. The police arrested the defendant, took a statement from L.B., and photographed her neck and face. She then went to a hospital. The defendant was arrested and charged with strangulation in the first degree, unlawful restraint in the first degree, attempt to commit assault in the first degree, interfering with an emergency call, strangulation in the second degree, and risk of injury to a child.

         Following the trial, the jury found the defendant guilty of attempt to commit assault in the first degree, [162 Conn.App. 587] unlawful restraint in the first degree, strangulation in the second degree, and risk of injury to a child. It acquitted him of strangulation in the first degree and interfering with an emergency call. The court, Kwak, J., sentenced the defendant to twenty years incarceration followed by five years of special parole. This appeal followed.

         The defendant claims that his due process rights were violated when the court did not permit him to attend three hearings on pretrial motions. The defendant argues that these hearings were critical stages of the proceedings and that he was entitled to be present. He argues that his presence bore a reasonably substantial relationship to the fullness of his opportunity to defend against the charges and that the hearings were not fair and just in his absence. The state responds that the defendant did not make an adequate showing that his absence from the hearings adversely affected his opportunity

Page 1257

to defend against the charges. We first set forth our standard of review. " Whether the defendant's constitutional rights were violated by his exclusion from [a] hearing presents a question of law and, accordingly, we exercise plenary review." State v. Dixon, 318 Conn. 495, 511, 122 A.3d 542 (2015).

         The following additional facts are necessary for our consideration of the defendant's claims. On January 4, 2013, the court, Solomon, J., held a hearing regarding the conditions of the defendant's bond. The defendant was not incarcerated; he was on house arrest with a global positioning system (GPS) monitor, which a probation officer monitored. At the conclusion of the hearing before Judge Solomon, the defendant requested a hearing on his motions regarding a bill of particulars, a request for essential facts, and a motion to dismiss regarding discovery issues. The court confirmed that, as these were discovery issues, they would take only a few minutes. The court then scheduled a hearing for [162 Conn.App. 588] January 7, 2013, before the trial court, Kwak, J. The defendant's attorney asked if the defendant could attend. The court ruled that the defendant did not need to be present, as the motions involved only legal issues pertaining to discovery, and denied the request.[1]

         On January 7, 2013, the defendant's attorney filed a " motion for client to be present in court for all hearings and proceedings in connection with this case." The defendant asserted that there were thirteen outstanding motions, including, in addition to those discussed before Judge Solomon, a motion in limine to exclude prior convictions, a motion to require notice of uncharged misconduct evidence, and a motion for in camera review of records of the complaining witness, L.B.[2] The motion for the defendant to be present cited the applicable law, and claimed that some of the motions could require the defendant's testimony and the testimony of the defendant's expert witness. The [162 Conn.App. 589] defendant's attorney further claimed that communication between a client and counsel during the hearing was key to effective assistance of counsel and a working attorney-client relationship. Finally, the defendant's attorney asserted that the interests of transparency in the judicial process required the defendant to be present in the courtroom when thirteen substantive motions were decided.

         In the hearing on January 7, 2013, before Judge Kwak, the ...


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