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State v. Tierinni

Court of Appeals of Connecticut

May 31, 2016

STATE OF CONNECTICUT
v.
CHRISTOPHER TIERINNI

          Argued March 2 2016

         Appeal from Superior Court, judicial district of Tolland, geographical area number nineteen, Graham, J.

          Stephanie L. Evans, assigned counsel, for the appellant (defendant).

          Sarah 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.

          OPINION

          DIPENTIMA, C. J.

         The 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.

         The jury reasonably could have found the following facts. The victim[1] 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.

         On June 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.

         In an 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 necessary.

         I

         The 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.[2] 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.

         The 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.

         ‘‘What 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.

         ‘‘Let’s 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.

         ‘‘If, 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.

         ‘‘[The 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.

         ‘‘At 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.

         ‘‘Now, 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 ...


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