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State v. Joseph R. B.

Court of Appeals of Connecticut

May 30, 2017

STATE OF CONNECTICUT
v.
JOSEPH R. B. [*]

          Argued December 7, 2016

         Appeal from Superior Court, judicial district of Litchfield, Ginocchio, J.

          Naomi T. Fetterman, for the appellant (defendant).

          Jennifer F. Miller, deputy assistant state's attorney, with whom, on the brief, were David S. Shepack, state's attorney, and David R. Shannon, senior assistant state's attorney, for the appellee (state).

          Lavine, Beach and West, Js.

          OPINION

          BEACH, J.

         The defendant, Joseph R. B., appeals from the judgment of conviction, rendered after a jury trial, of one count of risk of injury to a child in violation of General Statutes (Rev. to 2011) § 53-21 (a) (1). The defendant claims that (1) the evidence adduced at trial was insufficient to support his conviction and (2) certain comments made by the prosecutor violated his fifth amendment right to remain silent. We affirm the judgment of the trial court.

         The following facts and procedural history are relevant. On September 27, 2011, at approximately 6:30 a.m., H, the defendant's girlfriend, awoke and fed the victim, the five month old son of H and the defendant. At approximately 9 a.m., H left for work, leaving the defendant as the victim's sole caretaker. When she left for work, the victim was ‘‘fine.''

         Despite the fact that H was not supposed to receive telephone calls at work, the defendant telephoned H at work at approximately noon to tell her that the victim had caught his leg in the slats of the crib and it had been twisted in the effort to free it, but he said that the victim had not been injured. At approximately 3:30 p.m., H met the defendant at home, during a work break, for a scheduled home visit with Rachel Rosa, a social worker with the Department of Children and Families (department). Rosa's visit lasted about one-half hour, and, during that time, Rosa did not notice any trauma to the victim; she did notice that he was fussy and appeared uncomfortable. The defendant told Rosa that the victim had been fussy and that at approximately 2:30 p.m. the victim had finally fallen asleep. H attempted unsuccessfully to alleviate the victim's fussiness by feeding him. She took the victim's temperature, which was normal, and the victim was given Tylenol. During the visit, H held the victim and did not notice any deformity or obvious trauma to the victim's leg.

         D, the victim's maternal grandmother, arrived at the house while H, the defendant, Rosa and the victim were present. D's workday ended at 3:30 p.m. and she would frequently babysit for the victim from 3:30 p.m. until H could pick up the victim, usually around 9:30 p.m. The defendant informed D that he could not watch the victim that night because he might have to work and was waiting for a telephone call in that regard. The defendant told D that the victim ‘‘hadn't been sleeping and eating and was fussy'' and explained that the victim was teething. D placed the victim in the car seat and noticed that he was ‘‘whining and crying'' although he usually was ‘‘[a] pretty happy baby.'' D took the victim to her residence. When D fed the victim a bottle, she noticed a red mark ‘‘on his knee area'' and she began to rub the area, but stopped when the victim ‘‘screamed very loud.'' The victim also cried loudly when D put him into his nighttime pajamas.

         At approximately 9:45 p.m., H arrived at D's residence to take the victim home. At that time, D informed H that the victim ‘‘had been really cranky'' and that she had noticed a spot on the victim's leg. As soon as H saw the victim she noticed that his leg was ‘‘in a frog position.'' H told D that she was going to take the victim to the emergency room. When H put the victim in her car, D noticed that the defendant was sitting in the passenger seat of the car. When D asked the defendant why he did not watch the victim if he did not have to work, the defendant bowed his head and did not answer.

         Upon arriving at Charlotte Hungerford Hospital, H informed the triage nurse that the defendant had told her that at around noon the victim had been crying as a result of having caught his left leg in the slats of his crib and that the defendant had freed the leg. The triage nurse immediately sent the child to Alison Tieman, an emergency room nurse, who evaluated the victim. Upon examining the victim's left leg, Alison Tieman noticed that it was ‘‘very obviously . . . drawn up, the baby was not willing to straight[en] out his leg and there was actually swelling noted . . . between his knee and thigh area.'' A physician took an X ray of the victim's left leg and found a displaced fracture of the left femur. When Alison Tieman relayed this information to the victim's parents, H was ‘‘hysterically crying'' and the defendant was ‘‘sitting quiet.'' The defendant explained that at approximately noon he had noticed a line on the victim's thigh area that appeared to be swollen, but the line had vanished.

         Jason McIntyre, an officer with the Torrington Police Department, was dispatched to Charlotte Hungerford Hospital to investigate the injury. The defendant gave a statement to McIntyre. The statement, written and signed by the defendant, was admitted as a full exhibit at trial. The defendant said in the statement that H had left for work at approximately 9 a.m. He later fed and played with the victim and placed him in his crib at about 11:15 a.m. At about noon, the defendant noticed that [the victim's] ‘‘left leg was sticking out of the crib.'' The defendant extricated the victim's leg and ‘‘picked him up to check on his leg.'' The defendant noticed that the victim had a red mark on the top of his leg, but he did not notice any bruising. The defendant held the victim ‘‘when I got his leg out because he was whining.'' At 2:30 p.m., the defendant fed the victim some apple juice. Rosa and H arrived around 3:30 p.m., and D took the victim to her house. When H arrived at D's house later that night she noticed something wrong with the victim's left leg and took the victim to the hospital.

         The victim, meanwhile, was transferred to Connecticut Children's Medical Center, where he was treated. He was also evaluated by the Suspected Child Abuse and Neglect team (team). Nina Livingston, a physician board certified in general pediatrics and child abuse pediatrics, was the director of the team. She testified at trial that the victim suffered a transverse fracture of the left femur: ‘‘the bone was completely broken through in two pieces . . . closer to the knee than to the hip.'' Bone disease was ruled out as the cause of the injury. She explained that ‘‘a transverse fracture is the result of a bending force. This could result from a direct blow or from a bending force applied to the bone in another fashion.'' Livingston explained that injuries are evaluated with reference to the child's developmental level and by taking into account ‘‘what kinds of trouble they can get into on their own.'' She stated that a five month old infant would not be able to cause this type of injury to himself. When asked if it was the type of injury that could result from the normal handling of an infant, Livingston replied ‘‘absolutely not.'' She testified that this type of injury would not be expected to result from a normal effort to remove a five month old baby's leg from a crib. Livingston further explained that at the time of injury the baby would experience significant pain. If, however, the leg were still for a period of time, Livingston stated that the infant may calm down and may even eat or intermittently sleep. Once the leg was moved, however, the infant would exhibit pain behavior such as crying or being excessively fussy. Livingston also noted that symptoms of pain and swelling could go unnoticed for hours.

         At about midnight on September 28, 2011, Michael Pitruzzello, an investigator with the department, received a telephone call from staff at Charlotte Hungerford Hospital stating that a five month old patient at the hospital had a broken femur, that the explanation given for the victim's injury was suspicious, that the injury was not consistent with the explanation provided, and that the child was being transported to Connecticut Children's Medical Center. Pitruzzello interviewed the victim's parents. The defendant explained to Pitruzzello that he lived in the house where the victim resided and that he was the sole caretaker of the victim from the time H left for work until she returned at 3:30 p.m. He said that the victim had gotten his leg stuck in the crib but that he had freed it with relative ease. He did not offer an explanation to Pitruzzello as to how the injury had occurred.

         On the morning of September 28, 2011, Kevin Tieman, a detective with the Torrington Police Department, interviewed the defendant at his residence. The defendant stated that although at one point the victim had his leg caught in the slats of the crib, he did not notice any injury. He said that he made a telephone call to H and the victim then went to sleep. The defendant asked, ‘‘Well, what if it was an accident?'' The defendant mentioned a second possible scenario in which he may have leaned forward and put some pressure on the victim but that the victim did not make any sound.

         Following a trial, the jury found the defendant guilty of risk of injury to a child. The court imposed a total effective sentence of ten years incarceration, execution suspended after five years, and five years probation with special conditions. This appeal followed.

         I

         The defendant first claims that there was insufficient evidence to support his conviction of risk of injury to a child. He argues that there was no physical evidence of the cause, the timing or the identity of the perpetrator of the injury, and that his conviction was based on pure speculation.[1] We reject his arguments.

         ‘‘When reviewing sufficiency of the evidence claims, we impose a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. . . . Second, we determine whether, from that evidence and all the reasonable inferences which it yields, a [trier of fact] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt. . . . In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.'' ...


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