March 2 2016
from Superior Court, judicial district of Tolland,
geographical area number nineteen, Graham, J.
Stephanie L. Evans, assigned counsel, for the appellant
Hanna, assistant state’s attorney, with whom, on the
brief, were Matthew C. Gedansky, state’s attorney, and
Elizabeth C. Leaming, senior assistant state’s
attorney, for the appellee (state).
DIPENTIMA, C. J., AND LAVINE AND SCHALLER, JS.
DIPENTIMA, C. J.
defendant, Christopher Tierinni, appeals from the judgment of
conviction, rendered after a jury trial, of four counts of
sexual assault in the second degree in violation of General
Statutes § 53a-71 (a) (1) and three counts of risk of
injury to a child in violation of General Statutes §
53-21 (a) (2). On appeal, the defendant claims that (1) he
was denied his federal and state constitutional rights to due
process and a fair trial when he was excluded from critical
stages of the proceedings and (2) the court improperly
instructed the jury. We affirm the judgment of conviction.
jury reasonably could have found the following facts. The
victim met the defendant in the spring of 2011.
At that time, the defendant was twenty-eight years old and
the victim was fifteen years old. Near the end of May, 2011,
the defendant kissed the victim. The defendant told the
victim that he loved her and eventually they engaged in
sexual activity at his apartment on several occasions. The
victim started missing school and stayed at the
defendant’s apartment for extended periods.
17, 2011, the victim called the defendant and asked him to
pick her up at a fast food restaurant near her home. The
defendant arrived at the restaurant in his green minivan,
which the victim entered. Police officers, who had been
investigating the nature of the relationship between the
defendant and the victim, effectuated a traffic stop and
found the victim crouched in the back seat. Although the
victim initially denied having a physical relationship with
the defendant, she eventually disclosed the sexual activity
to law enforcement personnel.
amended substitute information, the state charged the
defendant with five counts of sexual assault in the second
degree in violation of § 53a-71 (a) (1) and four counts
of risk of injury to a child in violation of § 53-21 (a)
(2). Following a trial, the jury returned a not guilty
verdict with respect to counts one and two of the information
alleging, respectively, sexual assault in the second degree
and risk of injury to a minor for the time period of May 20,
2011 through May 31, 2011. The jury returned guilty verdicts
for the remaining charges for conduct that occurred on June
6, 2011, June 7, 2011, and June 15, 2011. The court accepted
the verdict, rendered judgment thereon, and sentenced the
defendant to an effective term of eighteen years of
incarceration and forty-two years of special parole. This
appeal followed. Additional facts will be set forth as
defendant first claims that he was denied his federal and
state constitutional rights to due process and a fair trial
when he was excluded from a critical stage of the
proceedings. Specifically, he argues that his constitutional
rights were violated by the court’s practice of hearing
arguments on evidentiary objections at sidebar. He also
contends that as a result of this practice, the court failed
to ensure that an adequate record was created for appellate
review. The defendant concedes that this claim is unpreserved
and seeks review pursuant to State v. Golding, 213
Conn. 233, 239–40, 567 A.2d 823 (1989), or, in the
alternative, that we reverse his conviction pursuant to the
plain error doctrine. The state counters that (1) the record is
inadequate to review the defendant’s claim, (2) the
defendant waived this claim by expressly agreeing to the
court’s practice, (3) the defendant’s brief is
inadequate and (4) the claim fails on the merits. We agree
with the state that the defendant waived this claim.
following additional facts aid our discussion. Prior to the
start of evidence, the court engaged in the following
colloquy with the prosecutor and defense counsel.
‘‘If there are no other matters that need to be
clarified for counsel or rulings, I do want to mention to
counsel it’s my practice, in fact, I think you heard
one of the prospective jurors, he was not accepted, complain
about sitting here in a trial back in 2003, a civil case with
an unnamed judge and unnamed lawyers, where he felt that they
were constantly being sent out, there were constant problems.
I’ve never had the comment about one of my trials yet.
we’re going to do, what my practice is, unless
there is objection to [it], is if you have a
simple objection and you don’t need any detailed
argument, you know, then you state it: Objection, hearsay.
say, for example, [defense counsel] objects to something and
says, ‘Objection, hearsay’; if [the prosecutor]
is claiming the medical record exception, she’ll simply
say, ‘Medical record exception, ’ and then I
could rule and we’ll move on.
however, one of you feels the need to further explain your
position, of if, for example, it’s a relevancy or a
prejudice versus probative objection and you think that,
perhaps correctly, that I don’t know the context of
this evidence yet, then you should ask for a sidebar.
prosecutor is] familiar with this. We did this the last trial
she had here, but basically what I do, [defense counsel] is
if you need to speak to me further, other than a very simple,
very brief objection, such as objection, hearsay, then ask
for a sidebar. We’ll have a sidebar over there.
We’ll keep our voices low. The jury won’t hear
it. You’ll make your pitch. You’ll make your two
points or whatever. [The prosecutor] will do the same.
We’ll go back on the record. I’ll rule. The jury
will not hear the substance of what you’re saying so
that there’s no risk they’ll be prejudiced by it.
the next break, the next time the jury is out of the room,
for example, the morning recess is half an hour later, the
jury leaves for the morning recess, you then will have the
opportunity, and I encourage you to put on the record the
substance of any discussion we had if you wish it.
sometimes in retrospect it turns out it wasn’t
important because of the answer or something of that nature,
but basically that enables us to have discussions about
evidentiary issues briefly without making the jury go in and
out, in and out, and at a later time, the next break when the
jury’s out, to place the substance of your argument on
the record, and all I ask in that regard is that if you give
me two points at sidebar, then half an hour later, after
we’ve moved on and I’ve overruled the objection,
that I don’t hear for the first time a third point
being raised because it’s too late for me to deal ...