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State v. Morales

Appellate Court of Connecticut

March 29, 2016

STATE OF CONNECTICUT
v.
RONALDO MORALES

         Argued October 19, 2015

          Substitute information charging the defendant with the crimes of sexual assault in the first degree, attempt to commit robbery in the third degree, kidnapping in the first degree, larceny in the third degree, strangulation in the first degree, unlawful restraint in the first degree, threatening in the second degree and assault in the third degree, brought to the Superior Court in the judicial district of Fairfield and tried to the jury before Kavanewsky, J.; verdict and judgment of guilty of unlawful restraint in the first degree, threatening in the second degree, assault in the third degree and the lesser included offense of strangulation in the second degree, from which the defendant appealed to this court.

          SYLLABUS

         Convicted of the crimes of strangulation in the second degree, unlawful restraint in the first degree, threatening in the second degree and assault in the third degree, the defendant appealed to this court. The defendant, whose romantic relationship with the victim had deteriorated, was charged after an incident in the victim's bedroom in which he punched her in the face, choked her, and held a knife to her back, and thereafter dragged her back up a flight of stairs to the bedroom after she had tried to tried to leave through the front door of the house, which was at the bottom of the stairs from her bedroom. The defendant claimed, inter alia, that his conviction of the strangulation, assault and unlawful restraint charges violated his right against double jeopardy in that the assault and unlawful restraint charges had necessarily arisen from the same act or transaction because the state had failed in its information to distinguish among those charges temporally, geographically or factually, and because the legislature, by statute (§ 53a-64bb), intended to treat strangulation in the second degree as the same offense as assault and unlawful restraint for double jeopardy purposes. Held :

         1. The defendant could not prevail on his unpreserved claim that his right against double jeopardy was violated as a result of his conviction of strangulation in the second degree, assault in the third degree and unlawful restraint in the first degree, as the jury reasonably could have found that the assault and unlawful restraint were discrete acts that were separate from the act of strangulation, and that they had taken place during a continuous course of conduct, rather than during the same act or transaction: contrary to the defendant's claim, this court was permitted to review the evidence presented at trial in addition to what the state had alleged in its information in order to determine whether those charges had arisen from the same act or transaction, or whether a distinct criminal act had formed the basis of each offense; the victim's testimony and photographs that depicted bruising to her face permitted the jury to reasonably find the defendant guilty of assault by having intentionally caused her physical injury, as his punch to her face had occurred before and, thus, was separate from his subsequent act of strangulation; moreover, the defendant's conduct toward the victim by the front door of the house after having strangled her in the bedroom provided an independent basis for his conviction of the unlawful restraint charge, as there was testimony that he had restrained the victim under circumstances that exposed her to a substantial risk of physical injury, and that after she had tried to leave through the front door, he grabbed her and dragged her back up the stairs to her bedroom; furthermore, the defendant's actions constituted violations of distinct statutory provisions that required different mental states, and the prohibited act in § 53a-64bb refers to an incident of strangulation rather than an event or course of conduct in which an act of strangulation occurs.

         2. Contrary to the defendant's claim, the trial court during the sentencing hearing did not violate his right to a jury trial by making factual findings that enhanced his sentence beyond the statutory maximum permitted for his conviction of strangulation in the second degree, assault in the third degree and unlawful restraint in the first degree, that court having simply reviewed the evidence and concluded that it supported the jury's verdict.

         3. The record was inadequate for appellate review of the defendant's unpreserved claim that the police violated his due process rights when they allegedly subjected him to custodial interrogation without having first advised him of his rights under Miranda v. Arizona (384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), as the record contained no findings by the trial court concerning whether the defendant was subject to interrogation for Miranda purposes; furthermore, the defendant's claims that his due process rights were violated when evidence was introduced at trial that he had refused to respond to postarrest booking questions by the police and to permit them to photograph his shirtless body were unavailing, as his refusal to answer the booking questions did not constitute an invocation of his right to remain silent and he did not have a constitutional right not to be photographed.

         4. The trial court did not abuse its discretion when it admitted prior uncharged misconduct evidence that the defendant previously had threatened the victim with a knife: that evidence was relevant and material to the charge of threatening in the second degree, its probative value did not outweigh its prejudicial effect and, although the defendant had declined the court's offer to give the jury a limiting instruction as to that evidence at the conclusion of the victim's testimony, the court minimized any unduly prejudicial effect that the evidence might otherwise have had when it gave a limiting instruction in its final instructions to the jury; moreover, although the defendant claimed that he had implicitly conceded at trial the element of intent as to the threatening charge, he did not explicitly concede that element before the trial court and, thus, the state bore the burden of proving both that he had committed the acts in question and had done so with the intent to place the victim in imminent fear of serious injury.

         John L. Cordani, Jr., assigned counsel, for the appellant (defendant).

         Emily D. Trudeau, deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Ann F. Lawlor, senior assistant state's attorney, for the appellee (state).

         Keller, Mullins and Schaller, Js. MULLINS, J. In this opinion the other judges concurred.

          OPINION

          [164 Conn.App. 146] MULLINS, J.

          The defendant, Ronaldo Morales, appeals from the judgment of conviction, rendered after a jury trial, of strangulation in the second degree in violation of General Statutes § 53a-64bb, unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a), threatening in the second degree in violation of General Statutes § 53a-62 (a) (1), and assault in the third degree in violation of General Statutes § 53a-61 (a) (1).[1] On appeal, the defendant claims the following: (1) his conviction of unlawful restraint, assault, and strangulation violate his constitutional right against double jeopardy; (2) his jury trial and due process rights were violated when the trial court found at sentencing that the state had proven that the unlawful restraint, assault, and strangulation charges were based on distinct and separate incidents; (3) his constitutional rights were violated when the state introduced at trial evidence of unwarned statements and other conduct; [164 Conn.App. 147] and (4) the trial court erred in admitting prior uncharged misconduct evidence on the issue of intent. We affirm the judgment of the trial court.

         The jury reasonably could have found the following relevant facts. In October, 2012, after having been in a romantic relationship since earlier that year, the defendant and the victim began living together at the victim's uncle's house at 704 Garfield Avenue in Bridgeport. They lived there with the victim's son, the victim's uncle, and the uncle's friend. In December, 2012, their relationship began to sour. Consequently, in early July, 2013, the defendant began sleeping in a room in the basement instead of in the victim's bedroom.

         In the early evening of July 17, 2013, the defendant and the victim were alone at home. The defendant went upstairs and knocked on the victim's bedroom door. After knocking at the door for some time, the defendant demanded that she let him in. She eventually complied.

         Once inside the victim's bedroom, the defendant sat next to the victim on the side of her bed, and they discussed their relationship. At some point in the conversation, the defendant punched the victim on the side of her face. After he punched her, he then began choking her, and she lost consciousness. When she regained consciousness, he was on top of her. He expressed surprise that she was not dead and told her that he would have to kill her to prevent her from calling the police. He produced a knife and held it to her back. He then gave the knife to her and told her to kill him. She threw the knife out of reach and begged him to leave.

         Then, the victim tried to leave the house. She reached the front door, which was at the bottom of the stairs leading up to her bedroom, but the defendant leapt down the stairs, intercepted her, and prevented her from leaving the house. He then dragged her back upstairs. He forced her back into the bedroom, where [164 Conn.App. 148] she offered him money in exchange for leaving but told him that she did not have the money with her in the house. He replied that he would take her to the bank. The defendant took the victim's keys to her car and drove them to the bank.

         When they arrived at the bank, which was closed, the defendant accompanied the victim to the automated teller machine. After she withdrew cash from the machine, he demanded that she give it to him, but she replied that she would give it to him in the car. When they returned to the car, she pretended to climb in until she saw that he was in the car. Once she saw that he was inside the car, she fled to a nearby Walgreen's pharmacy where an employee called the police at her request. The defendant drove away in the victim's car and was arrested thereafter.

         The record also reveals the following relevant facts and procedural history. The state charged the defendant by way of an eight count substitute long form information. At the conclusion of the defendant's jury trial, he requested and received a jury instruction as to the lesser included offense of strangulation in the second degree. The jury returned a verdict of guilty on the charges of strangulation in the second degree, unlawful restraint, threatening, and assault.

         At the defendant's sentencing hearing, the court, sua sponte, raised the issue of the propriety under § 53a-64bb (b)[2] of the jury's guilty verdict on the strangulation, unlawful restraint and assault charges. In response, the state summarized the evidence presented at trial, [164 Conn.App. 149] arguing that it established three separate incidents out of which the charges respectively arose. The defendant countered that the verdict on those charges could not be sustained without knowing whether the jury actually found that each charge arose from a separate incident.[3] The court concluded that there was " enough evidence to support jury verdicts on each of these counts as separate and discrete incidents." In accordance with the jury's verdict, the court imposed a total effective sentence of eight years imprisonment. This appeal followed. Additional facts will follow as necessary.

         I

         The defendant first claims that his conviction of and punishment for strangulation in the second degree, assault, and unlawful restraint violated his constitutional right against double jeopardy. He argues that his conviction of assault and unlawful restraint must be vacated because (1) those charges arose from the same act or transaction as the charge of strangulation in the second degree, and (2) § 53a-64bb (b) expresses the legislature's intent to treat strangulation in the second degree as the same offense as assault and unlawful restraint for double jeopardy purposes. We disagree.

         Before discussing the merits of this claim, we note that the defendant never raised a double jeopardy challenge in the trial court, and, therefore, his double jeopardy claim was not preserved for appellate review. State v. Thompson, 146 Conn.App. 249, 259, 76 A.3d 273 (" [i]t is well settled that [o]ur case law and rules of practice [164 Conn.App. 150] generally limit this court's review to issues that are distinctly raised at trial" [internal quotation marks omitted]), cert. denied, 310 Conn. 956, 81 A.3d 1182 (2013). He also has not sought review of his unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).[4] Nevertheless, we will consider his double jeopardy claim because the record is adequate for our review and the claim is of constitutional magnitude. State v. Elson, 311 Conn. 726, 754-55, 91 A.3d 862 (2014) (no need for affirmative request for Golding review if record is adequate and claim is of constitutional magnitude); State v. Chicano, 216 Conn. 699, 704-705, 584 A.2d 425 (1990) (double jeopardy claim reviewable under Golding ), cert. denied, 501 U.S. 1254, 111 S.Ct. 2898, 115 L.Ed.2d 1062 (1991), overruled in part on other grounds by State v. Polanco, 308 Conn. 242, 248, 261, 61 A.3d 1084 (2013).

          " A defendant's double jeopardy challenge presents a question of law over which we have plenary review. . . . The double jeopardy clause of the fifth amendment to the United States constitution provides: [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb. The double jeopardy clause [164 Conn.App. 151] is applicable to the states through the due process clause of the fourteenth amendment. . . . This constitutional guarantee prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense in a single trial. . . .

          " Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met. . . .

         " Traditionally we have applied the Blockburger [5] test to determine whether two statutes criminalize the same offense, thus placing a defendant prosecuted under both statutes in double jeopardy: [W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. . . . This test is a technical one and examines only the statutes, charging instruments, and bill of particulars as opposed to the evidence presented at trial. . . .

          " Our analysis of [the defendant's] double jeopardy [claim] does not end, however, with a comparison of the offenses. The Blockburger test is a rule of statutory construction, and because it serves as a means of discerning [legislative] purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent. . . . Thus, the Blockburger test creates only a rebuttable presumption of legislative intent, [and] the test is not controlling when a contrary intent is manifest. . . . When the conclusion reached under Blockburger is that the two [164 Conn.App. 152] crimes do not constitute the same offense, the burden remains on the defendant to demonstrate a clear legislative intent to the contrary." (Citations omitted; footnote added; internal quotation marks omitted.) State v. Wright, 319 Conn. 684, 689-90, 127 A.3d 147 (2015).

         Finally, " [o]n appeal, the defendant bears the burden of proving that the [convictions] are for the same offense in law and fact." (Internal quotation marks omitted.) State v. Ferguson, 260 Conn. 339, 361, 796 A.2d 1118 (2002).

         The defendant argues that in assessing whether multiple charges arose from the same act or transaction, this court is limited to reviewing only what the state has alleged in its information. He contends that although " the state may indeed prosecute and punish a defendant for multiple assaults and strangulations committed during one continuous altercation," to do so it must distinguish those charges from one another in the information. Therefore, because in this case the state, in its information, failed to distinguish temporally, geographically, or factually among the charges of strangulation in the second degree, assault, and unlawful restraint, they necessarily arose from the same act or transaction.

         Contrary to the defendant's argument, we conclude that we are not limited to a review of the state's information in order to determine whether the defendant's crimes arose from the same act or transaction. Our review of the case law leads us to conclude that the fact that the state charged him in the information with committing the subject crimes on the same date and at approximately the same time and place does not dispose of this portion of the double jeopardy analysis; rather, we are permitted to look at the evidence presented at trial. Upon reviewing that evidence, we conclude that the defendant has failed to prove that these [164 Conn.App. 153] three charges arose from the same act or transaction. As a result, we need not reach the second prong of the double jeopardy analysis of whether the defendant's conviction of these three charges was a conviction of the same offense.[6]

         At the outset of our discussion, we acknowledge, as the defendant points out, that " [i]t repeatedly has been held that to determine whether two charges arose from the same act or transaction, we look to the information, as amplified by the bill of particulars, if any." State v. Mincewicz, 64 Conn.App. 687, 691, 781 A.2d 455, cert. denied, 258 Conn. 924, 783 A.2d 1028 (2001) (citing, inter alia, State v. Goldson, 178 Conn. 422, 424, 423 A.2d 114 [1979], and collecting cases). We also acknowledge that our Supreme Court once cautioned courts making this determination to be mindful that " [t]he [d]ouble [j]eopardy [c]lause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units. If separate charges explicitly addressing different temporal aspects of the same conduct do not avoid the double jeopardy clause, surely an information and bill of particulars stipulating a single date and time [164 Conn.App. 154] cannot do so." (Internal quotation marks omitted.) State v. Goldson, supra, 425, quoting Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977).

         More recent case law, however, reveals that " [i]n analyzing whether certain charges arise out of the same act or transaction, our Supreme Court repeatedly has examined the evidence submitted at trial. See, e.g., State v. Brown, 299 Conn. 640, 653-54, 11 A.3d 663 (2011); State v. Kulmac, 230 Conn. 43, 67-69, 644 A.2d 887 (1994)." State v. Shenkman, 154 Conn.App. 45, 68 n.12, 104 A.3d 780 (2014), cert. denied, 315 Conn. 921, 107 A.3d 959 (2015); see also, e.g., State v. Miranda, 260 Conn. 93, 124, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S.Ct. 224, 154 L.Ed.2d 175 (2002); State v. James E., 154 Conn.App. 795, 834-35, 112 A.3d 791 (2015). These cases demonstrate that our appellate courts have looked beyond the information to consider the evidence presented at trial to resolve the same transaction prong of the double jeopardy analysis.

         Thus, notwithstanding some older authority appearing to restrict a reviewing court's analysis to the information, we conclude, on the basis of numerous and generally more recent decisions of our appellate courts, that we may resolve whether the defendant's crimes arose from the same transaction according to whether, on the record before us, a distinct criminal act formed the basis of each offense for which the defendant was convicted and punished. See, e.g., State v. Miranda, supra, 260 Conn. 124 (holding that although state alleged continuous failure to protect from harm that led to victim's injuries, no double jeopardy violation where record established that distinct act led to each injury); accord State v. Beaulieu, 118 Conn.App. 1, 14, 982 A.2d 245 (holding that luring minor victim into location to engage in sexual act and engaging in sexual act with victim were separate acts for double jeopardy purposes), cert. denied, 294 Conn. 921, 984 A.2d 68 [164 Conn.App. 155] (2009); see also State v. Shenkman, supra, 154 Conn.App. 68 n.12, and cases cited therein.

         In the present case, the state alleged in the information a course of conduct by the defendant that took place over a short span of time at the victim's uncle's house. At trial, the state presented evidence of discrete acts that took place within that course of conduct. Although the state charged the defendant with multiple offenses arising from a course of conduct that occurred during a short period of time at a single location, our review of the record satisfies us that the jury reasonably could have concluded that each charge was based on a separate act committed with the requisite criminal intent.

         Previously in this opinion, we set forth the facts that the jury reasonably could have found on the basis of the evidence presented at trial. With respect to the assault charge, the defendant's punch to the victim's face when the two of them were seated next to each other on the bed--and before any strangulation occurred--provided a basis for finding him guilty of assault that was separate from the subsequent act of strangulation. There was testimony and other evidence that the defendant, with intent to cause the victim physical injury, did cause her physical injury; see General Statutes § 53a-61 (a) (1); when he punched her on the side of her face. Specifically, upon looking in the mirror after being punched, the victim testified, she noticed that her " eyes were bad, [her] face was bad." Additionally, photographs of the victim in evidence exhibit bruising around her left eye. On the basis of the victim's testimony and the photographs depicting bruising to her face, the jury properly could have concluded that the defendant intentionally caused the victim physical injury apart from the act of strangling her.[7]

          [164 Conn.App. 156] With respect to the unlawful restraint charge, the defendant's conduct toward the victim by the front door of the house, some time after he strangled her in her bedroom, provided a basis on which to convict him of unlawful restraint in the first degree that was independent of the earlier act of strangulation. There was testimony that he restrained the victim under circumstances that exposed her to a substantial risk of physical injury; see General Statutes § 53a-95 (a); when she tried to flee the home. Specifically, the evidence showed that at some point after the victim regained consciousness following the strangulation, she tried to leave through the front door of the house, which was at the bottom of the stairs from her bedroom. The defendant leaped to the bottom of the stairs, grabbed her, and dragged her back up the stairs to her bedroom. From this testimony, the jury reasonably could have found that the defendant exposed the victim to a substantial risk of physical [164 Conn.App. 157] injury through conduct separate from the act of strangulation.[8]

          " Although [d]ouble jeopardy prohibits multiple punishments for the same offense in the context of a single trial . . . distinct repetitions of a prohibited act, however closely they may follow each other . . . may be punished as separate crimes without offending the double jeopardy clause. . . . The same transaction, in other words, may constitute separate and distinct crimes where it is susceptible of separation into parts, each of which in itself constitutes a completed offense. . . . [T]he test is not whether the criminal intent is one and the same and inspiring the whole transaction, but whether separate acts have been committed with the requisite criminal intent and are such as are made punishable by the [statute]." (Emphasis omitted; internal quotation marks omitted.) State v. Brown, supra, 299 Conn. 652; State v. Miranda, supra, 260 Conn. 122-23. " If a violation of law is not continuous in its nature, separate indictments may be maintained for each violation. Thus, a distinct repetition of a prohibited act constitutes a second offense and subjects the offender to an additional penalty." (Internal quotation marks omitted.) State v. Snook, 210 Conn. 244, ...


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