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State v. Devon D.

Supreme Court of Connecticut

June 14, 2016

STATE OF CONNECTICUT
v.
DEVON D.[*]

          Argued January 22, 2016

          Denise B. Smoker, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Anne Mahoney, senior assistant state’s attorney, for the appellant (state).

          James B. Streeto, senior assistant public defender, for the appellee (defendant).

          Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.

          OPINION

          ZARELLA, J.

         After a jury trial, the defendant, Devon D., was convicted of four counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), three counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (1), and four counts of risk of injury to a child in violation of § 53-21 (a) (2). The charges were brought in three separate in formations and involved allegations made by three of the defendant’s biological children-C1, C2 and C3.[1]From the judgments of conviction, the defendant appealed to the Appellate Court, which concluded that the trial court had abused its discretion in two ways- by permitting the three cases against the defendant to be tried jointly and by permitting C1 to testify with a dog at her feet for comfort and support. In the present appeal, the state contends that the Appellate Court incorrectly concluded that the trial court had abused its discretion in denying the defendant’s motion to sever the three cases and in allowing a dog to be present with C1 during her testimony. We agree with the state.

         The jury reasonably could have found the following relevant facts and procedural history. The defendant and his former girlfriend, GF, have several children together, including a girl, C1, and two boys, C2 and C3. After the defendant and GF separated in 2005, the children visited the defendant at his residence or at his mother’s home. In October, 2009, seven year old C1 told GF that the defendant had put his ‘‘wee-wee’’ on her stomach and had touched her ‘‘private part’’ with his fingers. Erin Byrne, a clinical child interview specialist for the Children’s Advocacy Center at Saint Francis Hospital and Medical Center, interviewed C1 in November, 2009, and in March, 2010. In the first interview, C1 ‘‘spoke about being in a bedroom [in her grandmother’s house] with her father and that he had poured some lotion on her body, as well as poured the white stuff from his wee-wee on her body, and had contact with her genitals with his fingers.’’ C1 also disclosed that the defendant had inserted his finger into her vagina while bathing her and using a rag, causing her to bleed. He also forced C1 and her siblings to watch a pornographic movie.

         In the second interview, C1 told Byrne that the defendant had penetrated her ‘‘private part’’ with his penis, had attempted to penetrate her ‘‘butt’’ with his penis and had ejaculated on her several times. She also told Byrne that the defendant had forced her to perform fellatio on him, causing her to vomit. Additionally, C1 told Byrne that the defendant had told her that she might die from eating meat and that the reason he ‘‘does the nasty stuff’’ is to get the ‘‘meat’’ she had eaten ‘‘out’’ of her body. C1 told Byrne that the defendant had put vinegar, or a substance that stung, on her vagina and in her ear, and that he had tried to put his penis in her ear, causing it to bleed. C1 stated that these incidents occurred in her grandmother’s home on different days, and that the defendant had his clothes off or his pants pulled down each time. The defendant warned C1 not to say anything about these incidents.

         Nine year old C2 also came forward with allegations against the defendant in November, 2009. In an interview with Stacy Karpowitz, a child forensic interview specialist with the Children’s Advocacy Center, C2 stated that, on several occasions, the defendant had inserted a rag covered finger into his ‘‘butt hole’’ while C2 was bathing. C2 also stated that the defendant had rubbed C2’s penis and made it go ‘‘up and down.’’ In doing so, the defendant some times use darag and sometimes used his hand. Finally, C2 stated that the defendant had made him watch a pornographic movie with his siblings and had warned him not to say anything.

         Also, in November, 2009, Lisa Murphy-Cipolla, a clinical child interview supervisor with the Children’s Advocacy Center, interviewed ten year old C3. C3 stated that the defendant had inserted his finger into C3’s ‘‘butt’’ on more than one occasion, and that he had been using a rag, but the rag ‘‘slipped.’’ The defendant also had squeezed C3’s penis and had pulled back the foreskin on C3’s penis on multiple occasions. C3 further stated that the defendant sometimes made him shower with C2, but he did not see the defendant do anything to C2. C3, however, had seen the defendant insert his finger into C1’s ‘‘butt’’ on at least one occasion. Finally, C3 told Murphy-Cipolla that the defendant had made him watch a pornographic movie with his siblings and had warned him not to tell GF that the defendant was bathing him.

         On the basis of these allegations, the defendant was arrested and charged with four counts of sexual assault in the first degree in violation of § 53a-70 (a) (2), three counts of risk of injury to a child in violation of § 53-21 (a) (1), and four counts of risk of injury to a child in violation of § 53-21 (a) (2). During a trial before a jury, the video-recorded interviews with C1, C2 and C3 were admitted into evidence as full exhibits, and all three recordings were played for the jury.

         In its final charge to the jury, the trial court instructed: ‘‘In a criminal case in which the defendant is charged with a crime exhibiting abhorrent and compulsive sexual criminal behavior, evidence of the defendant’s commission of another offense or offenses is admissible and may be considered for its bearing on any matter to which it is relevant. So for these three cases, you may use [C2’s] and [C3’s] testimony in this fashion in [C1’s] case. In [C2’s] case, you may use [C1’s] and [C3’s] testimony for this specific purpose. In [C3’s] case, [C1’s] and [C2’s] testimony.

         ‘‘However, evidence of another offense on its own is not sufficient to prove the defendant guilty of the crime or crimes charged in the informations. Bear in mind as you consider this evidence that, at all times, the state has the burden of proving beyond a reasonable doubt that the defendant committed each of the elements of the offense or offenses charged in each information. I remind you that the defendant is not on trial for any act, conduct, or offense not charged in the informations. With regard to propensity evidence, like other evidence, you decide to give it the weight you find reasonable.’’ Defense counsel did not object or take exception to the trial court’s instructions to the jury.

         After the jury returned verdicts of guilty as to all counts, the trial court rendered judgments in accordance with the verdicts. The defendant then appealed to the Appellate Court, which reversed the judgments of conviction and remanded the cases for new trials. State v. Devon D., 150 Conn.App. 514, 550, 90 A.3d 383 (2014). We granted the state’s petition for certification to appeal from the judgment of the Appellate Court.[2]Additional facts will be set forth as necessary.

         I

         The first question in this certified appeal is whether the Appellate Court incorrectly concluded that the trial court had abused its discretion in denying the defendant’s motion to sever the three cases against him. The state contends that the cases properly were joined for trial because the evidence in each case would have been admitted as prior misconduct in the other cases. We agree with the state.

         The following procedural history and facts are relevant to our resolution of this claim. On March 29, 2011, the defendant filed a motion to sever the cases against him. During argument before the trial court, defense counsel claimed that the main concern was that the jury would aggregate the evidence against the defendant, so that, even if the evidence on any single charge would not persuade the jury of his guilt, ‘‘the sum total of all the charges . . . may persuade the jury that he’s guilty of all of them.’’ Counsel further argued that, because the case concerning C1 was more brutal and shocking than the cases concerning C2 and C3, the jurors might find the evidence in the first case so offensive that they would not be able to deliberate objectively with respect to the remaining two cases. Finally, defense counsel argued that the cases should be tried separately because they were complex, involving multiple charges, children, witnesses, interviewers and police officers, and because curative instructions would not be sufficient to overcome the potential prejudice of trying the cases jointly.

         The state responded that the trial would not be lengthy or overly complex because it involved easily separable fact patterns. The state emphasized that many of the witnesses would be called in all three cases and that, under State v. DeJesus, 288 Conn. 418, 470–74, 953 A.2d 45 (2008), it expected that evidence in the three cases would be cross admissible. Finally, the state noted that each case was ‘‘shocking on its own, so one of them is not more shocking than the other.’’ Defense counsel refuted the state’s contention that the evidence in each case would be admissible as prior misconduct in the other cases, pointing to the fact that the victims were different ages, that two victims were male and one was female, and that the allegations involved different types of penetration.

         After hearing arguments from counsel, the trial court acknowledged that the allegations in all three cases were brutal and shocking and recognized the potential effect on the jurors. The trial court also noted the difficulties involved in satisfying the Boscarino test, which requires a showing that the cases are discrete and easily distinguishable, versus the DeJesus test, which requires a showing that the cases are similar. After considering these and other factors, including the effect of the trial on the child victims, the applicable case law, the court’s ability to permit jurors to take notes and to provide cautionary instructions, and judicial economy, the court denied the motion for severance. The court noted in particular that the cases involved ‘‘discrete and easily distinguishable factual features, ’’ that the trial would not be lengthy or complex, and that, because the allegations in all three cases were equally brutal and shocking, ‘‘[t]he jurors are going to be shocked to some extent in all three of these [cases].’’[3]

         The standards for reviewing a trial court’s ruling on a motion pertaining to joinder are discussed at length in our decisions in State v. LaFleur, 307 Conn. 115, 159, 51 A.3d 1048 (2012), and State v. Payne, 303 Conn. 538, 544–50, 34 A.3d 370 (2012). In those cases, we rejected the notion of a blanket presumption in favor of joinder[4]and clarified that, when charges are brought in separate informations, and the state seeks to join those informations for trial, ‘‘the state bears the burden of proving that the defendant will not be substantially prejudiced by joinder pursuant to Practice Book § 41-19. The state may satisfy this burden by proving, by a preponderance of the evidence, either that the evidence in the cases is cross admissible or that the defendant will not be unfairly prejudiced pursuant to the factors set forth in State v. Boscarino, 204 Conn. 714, 722–24, 529 A.2d 1260 (1987).[5] State v. Payne, supra, [549–50].’’ (Footnote added; internal quotation marks omitted.) State v. LaFleur, supra, 157. Although the state bears the burden of proof in the trial court, ‘‘[i]t is the defendant’s burden on appeal to show that joinder was improper by proving substantial prejudice that could not be cured by the trial court’s instructions to the jury . . . .’’ (Internal quotation marks omitted.) Id., 158. As we emphasized in LaFleur, ‘‘our appellate standard of review remains intact. Accordingly, [i]n deciding whether to [join informations] for trial, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb.’’ (Internal quotation marks omitted.) Id.

         We start our analysis by determining whether the evidence in the cases concerning C1, C2 and C3 was cross admissible, such that evidence in each case would have been admissible as prior misconduct in the other cases. In DeJesus, we set forth the following standards for determining when evidence of prior sexual misconduct is admissible: ‘‘[E]vidence of uncharged sexual misconduct properly may be admitted in sex crime cases to establish that the defendant had a tendency or a propensity to engage in aberrant and compulsive criminal sexual behavior 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. In assessing the relevancy of such evidence, and in balancing its probative value against its prejudicial effect, the trial court should be guided by this court’s prior precedent construing the scope and contours of the liberal standard pursuant to which evidence of uncharged misconduct previously was admitted under the common scheme or plan exception. Lastly, prior to admitting evidence of uncharged sexual misconduct under the propensity exception . . . the trial court must provide the jury with an appropriate cautionary instruction . . . .’’ State v. DeJesus, supra, 288 Conn. 476–77; see also Conn. Code Evid. § 4-5 (b) (effective January 1, 2012), in 73 Conn. L.J., No. 1, p. 211PB (July 5, 2011) (codifying propensity exception described in DeJesus).

         Recognizing the difficulties of balancing the probative value of the evidence against its prejudicial effect, we have held that ‘‘the trial court’s decision will be reversed only whe[n] abuse of [its] discretion is manifest or whe[n] an injustice appears to have been done. . . . On review by this court, therefore, every reasonable presumption should be given in favor of the trial court’s ruling. . . . State v. Merriam, 264 Conn. 617, 659–61, 835 A.2d 895 (2003).’’ (Internal quotation marks omitted.) State v. Romero, 269 Conn. 481, 497, 849 A.2d 760 (2004).

         Applying these standards in the present case, we conclude that the trial court properly exercised its discretion in permitting the cases to be tried together because the evidence in all three cases was cross admissible.[6]Turning first to the question of relevancy, it is undisputed that the incidents alleged by C1, C2 and C3 were proximate in ...


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