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State v. Carlos P.

Court of Appeals of Connecticut

March 14, 2017

STATE OF CONNECTICUT
v.
CARLOS P.[*]

          Argued December 5, 2016

         Appeal from Superior Court, judicial district of Danbury, Pavia, J.

          Pamela S. Nagy, assistant public defender, for the appellant (defendant).

          Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, Deborah Mabbett, senior assistant state's attorney, and Edward L. Miller, deputy assistant state's attorney, for the appellee (state).

          Lavine, Alvord and Pellegrino, Js.

          OPINION

          LAVINE, J.

         The defendant, Carlos P., appeals from the judgment of conviction, rendered after a trial to the jury, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), one count of attempted sexual assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-70 (a) (2), risk of injury to a child in violation of General Statutes § 53-21 (a) (2), and one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A).[1] On appeal, the defendant claims that (1) his convictions of sexual assault in the first degree and attempt to commit sexual assault in the first degree violate the constitutional prohibition against double jeopardy, (2) his convictions of sexual assault in the first degree and sexual assault in the fourth degree violate the constitutional prohibition against double jeopardy, (3) the court erred by rejecting his Batson[2]challenge, and (4) the court abused its discretion by failing to disclose all of the psychiatric and medical records of the state's key witness. We reverse, in part, and affirm, in part, the judgment of the trial court.

         The jury reasonably could have found the following facts. On November 21, 2012, the then three year old victim lived with her mother in an apartment in Dan-bury. The defendant is the victim's father, but he did not then live with the victim and mother. He was, however, a frequent visitor who occasionally spent the night in the apartment. The defendant and mother had a good relationship when the defendant was not abusing alcohol. He primarily spoke Spanish, and mother primarily spoke English, but the two devised a form of communication for themselves, a combination of English and Spanish.

         On the day in question, the defendant appeared at the apartment after several days of drinking. He was intoxicated and asked mother for sex. Mother refused because she did not have sex with the defendant when he was drunk. That day, mother was busy preparing for the next day's Thanksgiving celebration and needed to go to the store to make a purchase. She stayed in the apartment for forty-five minutes to ensure that the defendant did not consume any additional alcohol and that he was sober enough to look after the victim. Before mother left the apartment, she gave the victim, who was in her own room, a popsicle. The defendant was sitting on the couch in the living room.

         When mother returned to the apartment ten minutes later, she saw the victim, with her popsicle, reclining on the couch with her pants and underwear down around her ankle and her legs wide open. The defendant was sitting a pillow's length away from the victim in a corner of the couch with his pants unbuckled. Mother asked the defendant what was going on. The defendant responded, in Spanish, that the mother did not care for him and ‘‘chupa chapa.''[3] Mother slapped the defendant on the face and stated that she was going to call the police. Mother called 911 and went outside with the victim to open the door for the police.

         When mother returned to the apartment, she saw the defendant in the bathroom and heard running water. She observed the defendant washing his penis and genital area. She stated to the defendant not to do that, but he buckled up his pants and left the apartment. According to mother, she had never before seen the defendant sponge bathing his penis; he showered like everyone else.

         After the police arrived, the victim and mother were transported via ambulance to the emergency room, where Krystyna Isbell, a registered nurse and sexual assault nurse examiner, administered a standardized sexual assault evidence kit to the victim to collect evidence. Is bell found no signs of physical trauma to the victim and swabbed her external genitalia and vagina. The specimens collected from the victim were placed in sealed bags, transferred to a police officer, Michelle Cattuti, and delivered to the state forensic laboratory for analysis.

         At the state forensic laboratory, Jane Codraro, a forensic biologist, examined the material collected from the victim's vagina and external genitalia. Codraro did not find any spermatozoa, which is the cellular component of semen, but she found evidence of p30, a seminal fluid protein. A positive result for p30 indicates, but does not conclusively establish, the presence of semen. Codraro used sophisticated DNA testing to determine that the DNA extracted from the genetic material taken from the victim's vagina came from the defendant or from the same paternal lineage.

         Mother spoke to the defendant via telephone several weeks later when he called. Mother stated to the defendant that he was not to come to the apartment until he had spoken with the Danbury Police Department. The defendant voluntarily went to the Danbury Police Department on December 5, 2012, where he was inter-viewed by Detective Heather Burke. The defendant gave Burke an oral statement in Spanish.[4]

         The defendant was arrested in January, 2013, and charged with sexual assault in the first degree in violation of § 53a-70 (a) (2), attempted sexual assault in the first degree in violation of §§ 53a-49 and 53a-70 (a) (2), risk of injury to a child in violation of § 53-21 (a) (2), risk of injury to a child in violation of § 53-21 (a) (1), [5]and sexual assault in the fourth degree in violation of § 53a-73 (a) (1). Additional facts will be set forth as needed.

         I

         DOUBLE JEOPARDY CLAIMS

         The defendant has raised two double jeopardy claims on appeal: (1) his convictions for sexual assault in the first degree in violation of § 53a-70 (a) (2) and attempted sexual assault in the first degree in violation of §§ 53a-49 and 53a-70 (a) (2) violated the constitutional prohibition against double jeopardy, and (2) his convictions of sexual assault in the first degree in violation of § 53a-70 (a) (2) and sexual assault in the fourth degree in violation of § 53a-73a (a) (1) (A) also violated the constitutional prohibition against double jeopardy. We agree with the defendant's first but not his second double jeopardy claim.

         The defendant failed to preserve his double jeopardy claims at trial and seeks to prevail on appeal pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). ‘‘Under [Golding] a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . . . exists and . . . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harm-lessness of the alleged constitutional violation beyond a reasonable doubt. . . . The first two Golding requirements involve whether the claim is reviewable, and the second two involve whether there was constitutional error requiring a new trial.'' (Emphasis added; internal quotation marks omitted.) State v. Fabricatore, 281 Conn. 469, 476-77, 915 A.2d 872 (2007); see In re Yasiel, 317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying third prong of Golding). The defendant's claims are reviewable because the record is adequate for review, and the claims are of constitutional magnitude.

         Double jeopardy claims present a question of law over which our review is plenary. See State v. Burnell, 290 Conn. 634, 642, 966 A.2d 168 (2009). ‘‘The fifth amendment to the United States constitution provides in relevant part: No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . . The double jeopardy clause of the fifth amendment is made applicable to the states through the due process clause of the fourteenth amendment.'' (Internal quotation marks omitted.) State v. Brown, 299 Conn. 640, 650-51, 11 A.3d 663 (2011).

         ‘‘Double jeopardy prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense. . . . The double jeopardy analysis in the context of a single trial is a two part 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. . . . The defendant on appeal bears the burden of prov- ing that the prosecutions are for the same offense in law and fact.'' (Internal quotation marks omitted.) State v. Felder, 146 Conn.App. 621, 625, 78 A.3d 224 (2013), cert. denied, 311 Conn. 909, 83 A.3d 1164 (2014). The double jeopardy prohibition also is violated if one crime is a lesser included offense of the other. See State v. Morin, 180 Conn. 599, 601-605, 430 A.2d 1297 (1980); State v. Haywood, 109 Conn.App. 460, 465-66, 952 A.2d 84, cert. denied, 289 Conn. 928, 958 A.2d 161 (2008).

         ‘‘The traditional approach to analyzing whether two offenses constitute the same offense was set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). [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.'' (Internal quotation marks omitted.) State v. Greco, 216 Conn. 282, 291, 579 A.2d 84 (1990). ‘‘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. . . . Thus, the issue, though essentially constitutional, becomes one of statutory construction.'' (Internal quotation marks omitted.) State v. Felder, supra, 146 Conn.App. 625-26, quoting State v. Alvaro F., 291 Conn. 1, 7, 966 A.2d 712, cert. denied, 558 U.S. 882, 130 S.Ct. 200, 175 L.Ed.2d 140 (2009). ‘‘The test used to determine whether one crime is a lesser offense included within another crime is whether it is not possible to commit the greater offense, in the manner described in the information . . . without having first committed the lesser . . . . This . . . test is satisfied if the lesser offense does not require any element which is not needed to commit the greater offense.'' (Internal quotation marks omitted.) State v. Haywood, supra, 109 Conn.App. 465. ‘‘Therefore, a lesser included offense of a greater offense exists if a finding of guilt of the greater offense necessarily involves a finding of guilt of the lesser offense.'' State v. Arokium, 143 Conn.App. 419, 435, 71 A.3d 569 (possession of narcotics lesser included offense of possession of narcotics with intent to sell), cert. denied, 310 Conn. 904, 75 A.3d 31 (2013).

         When a defendant has been found guilty of both a greater and a lesser offense, the remedy is to vacate the defendant's conviction of the lesser included offense. State v. Polanco, 308 Conn. 242, 248, 61 A.3d 1084 (2013).

         A

         The defendant claims that his convictions of sexual assault in the first degree in violation of § 53a-70 (a) (2)[6] and attempted sexual assault in the first degree in violation of §§ 53a-49[7] and 53a-70 (a) (2) violated the constitutional prohibition against double jeopardy. The state acknowledges that the defendant's convictions of both attempt to commit sexual assault in the first degree and sexual assault in the first degree arose from the same act, and therefore concedes that attempt to commit sexual assault in the first degree is a lesser included offense of sexual assault in the first degree. We agree.

         The following procedural facts are relevant to our resolution of the defendant's claim. In its substitute long form information filed on May 20, 2014, the state charged in count one that ‘‘on or about November 21, 2012, at approximately 11:45 a.m. at an apartment building on Fifth Avenue in Danbury . . . [the defendant] engaged in sexual intercourse with another person and such other person was under thirteen years of age and the actor was more than two years older than such other person. To Wit: a three year old minor female, in violation of . . . § 53a-70 (a) (2).'' In count two, the state charged that ‘‘on or about November 21, 2012, at approximately 11:45 a.m. at an apartment building on Fifth Avenue in Danbury . . . [the defendant] attempted to engage in sexual intercourse with another person and such other person was under thirteen years of age and the actor was more than two years older than such other person. To Wit: a three year old minor female, in violation of [§§] 53a-49 and 53a-70 (a) (2).''

         Because one cannot commit the greater offense of sexual assault in the first degree without first attempting to commit sexual assault in the first degree, the defendant's conviction of attempt to commit sexual assault in the first degree and sexual assault in the first degree violates the prohibition against double jeopardy. The two offenses, therefore, are the same for purposes of double jeopardy. To rectify the constitutional violation, the defendant's conviction of attempt to commit sexual assault in the first degree, and resulting sentence, must be vacated. See State v. Polanco, supra, 308 Conn. 249.

         B

         The defendant's second claim is that his convictions of sexual assault in the first degree in violation of § 53a-70 (a) (2)[8] and sexual assault in the fourth degree in violation of § 53a-73a (a) (1) (A)[9] violated the constitutional prohibition against double jeopardy. We do not agree.

         As previously stated, we apply the test set out in Blockburger v. United States, supra, 284 U.S. 304, ‘‘to determine whether two statutes criminalize the same offense . . . .'' (Internal quotation marks omitted.) State v. Alvaro F., supra, 291 Conn. 7. Pursuant to the Blockburger test, ‘‘the test to be applied to determine whether there are two offense 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 the statutes, charging instrument, and bill of particulars as opposed to the evidence presented at trial. . . .

         Thus, [t]he issue, though essentially constitutional, becomes one of statutory construction.'' (Citations omitted; emphasis added; internal quotation marks omitted.) Id.

         ‘‘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 crimes do not constitute the same offense, the burden remains on the defendant to demonstrate a clear legislative intent to the contrary.'' (Citation omitted; internal quotation marks omitted.) State v. Wright, 319 Conn. 684, 690, 127 A.3d 147 (2015).

         ‘‘In applying the Blockburger test, we are permitted to examine only the charging documents and the relevant statutory provisions. . . . We are prohibited from examining the evidence presented at trial. Indeed, [i]n making this determination, we are concerned with theoretical possibilities, and do not focus on the evidence presented.'' (Citations omitted; footnote omitted; internal quotation marks omitted.) State v. Mezrioui, 26 Conn.App. 395, 403-404, 602 A.2d 29, cert. denied, 224 Conn. 909, 617 A.2d 169 (1992).

         Once again, in count one of its substitute long form information, the state charged that ‘‘on or about November 21, 2012, at approximately 11:45 a.m. at an apartment building on Fifth Avenue in Danbury . . . [the defendant] engaged in sexual intercourse with another person and such other person was under thirteen years of age and the actor was more than two years older than such other person. To Wit: a three year old minor female, in violation of . . . § 53a-70 (a) (2).'' In count five of its substitute long form information, the state charged the defendant ‘‘with the crime of sexual assault in the fourth degree and charges that on or about November 21, 2012, at approximately 11:45 a.m. at an apartment building on Fifth Avenue in Danbury . . . [the defendant] intentionally subjected another person to sexual contact who was under thirteen years of age and the actor was more than two years older than such person. To Wit: a three year old minor female, in violation of . . . § 53a-73 (a) (1) (A).''[10] The defendant argues, in effect, that engaging in sexual intercourse necessarily requires a defendant to subject a victim to sexual contact.

         We agree with the defendant that the crimes alleged arose out of the same act. Pursuant to the Blockburger test, however, we conclude that sexual assault in the first degree in violation of § 53a-70 (a) (2) and sexual assault in the fourth degree in violation of § 53a-73 (a)

         (1) (A) are separate and distinct crimes. Each crime requires proof of an element that the other does not. More specifically, sexual assault in the first degree requires proof of sexual intercourse, which sexual assault in the fourth degree does not; sexual assault in the fourth degree requires proof of sexual contact for the purpose of sexual gratification of the actor or the degradation or humiliation of the victim, which sexual assault in the first degree does not. Therefore, pursuant to our exercise in statutory construction, sexual assault in the fourth degree is not a lesser included offense of sexual assault in the first degree. Our review of the court's instructions to the jury reveals that the court's instructions are consistent with the proof required by each of the statutes.[11]

         Although the defendant acknowledges that each of the crimes requires proof of an element that the other does not, he argues that the Blockburger test is not controlling if it can be determined that the legislature did not intend for a person to be punished for both crimes arising from the same act. He continues that the legislative history shows that the intent of the legislature in enacting §§ 53a-70 (a) (2) and 53a-73a (a) (1) (A) was to protect persons under the age of thirteen from being sexually assaulted and that the two crimes are parallel crimes. In other words, he states, ‘‘what a defendant could be convicted of for committing one act was a matter of degree-whether it amounted to intercourse or whether it amounted to some other sexual contact that did not constitute intercourse.''

         The defendant's argument is at odds with the deci-sional law of this court and our Supreme Court regarding the construction of the statutory scheme regarding sexual assault. For example, in State v. Sirimanochanh, 224 Conn. 656, 620 A.2d 761 (1993), our Supreme Court agreed that this court properly had determined that ‘‘[s]exual assault in the fourth degree requires proof of the element of sexual contact for the purpose of sexual gratification of the actor or degradation or humiliation of the victim, whereas sexual assault in the second degree has no such element. The latter crime requires proof of sexual intercourse whereas the former crime does not. Each crime, therefore, requires proof of an element that the other does not.'' (Internal quotation marks omitted.) Id., 662-63. In State v. Milardo, 224 Conn. 397, 618 A.2d 1347 (1993), our Supreme Court concluded that attempted sexual assault in the third degree in violation of General Statutes § 53-72a is not a lesser included offense of attempted sexual assault in the first degree in violation of § 53a-70 because the former ...


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