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State v. Smith

Court of Appeals of Connecticut

June 27, 2017

STATE OF CONNECTICUT
v.
STACY SMITH

          Argued January 30, 2017

         Appeal from Superior Court, judicial district of Hartford, Dewey, J.

          Kevin M. Smith, with whom, on the brief, were Norman A. Pattis and Daniel M. Erwin, for the appellant (defendant).

          Nancy L. Walker, deputy assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Christopher Pelosi, senior assistant state's attorney, for the appellee (state).

          DiPentima, C. J., and Mullins and Flynn, Js.

          OPINION

          DiPENTIMA, C. J.

         The defendant, Stacy Smith, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1) (count one), risk of injury to a child in violation of General Statutes § 53-21 (a) (2) (count two), sexual assault in the second degree in violation of § 53a-71 (a) (1) (count three), risk of injury to a child in violation of § 53-21 (a) (2) (count four), sexual assault in the fourth degree in violation of General Statutes § 53-73a (a) (1) (count five), risk of injury to a child in violation of § 53-21 (a) (2) (count six), and risk of injury to a child in violation of § 53-21 (a) (1) (count seven). On appeal, the defendant claims that (1) his conviction violated his right to due process under the constitution of Connecticut because the police lost potentially exculpatory evidence, in the form of a text message, in violation of State v. Morales, 232 Conn. 707, 720, 657 A.2d 585 (1995), and (2) his conviction for both sexual assault in the second degree (counts one and three) and risk of injury to a child (counts two and four) constituted a violation of his constitutional right against double jeopardy. We disagree and, accordingly, affirm the judgment of the trial court.

         The jury reasonably could have found the following facts. The charged events occurred between October, 2007, and October, 2009, when the victim[1] was thirteen, fourteen and fifteen years old. At that time, she lived with her mother, M, two older brothers, and a younger sister. Until the end of 2009, the victim's family socialized ‘‘almost every weekend'' with D, who was the victim's godmother and M's best friend, and D's sons. In 2006, the victim met the defendant for the first time at a Dunkin' Donuts store and learned that he was the father of D's oldest son. The defendant was thirty-seven or thirty-eight years old at the time, recently had finished serving a prison sentence for federal narcotics violations, and was living in a halfway house and working at Dunkin' Donuts. Shortly thereafter, the defendant and D resumed their previous relationship, and, in the winter of 2007, the defendant moved into D's East Hartford home.

         In the summers of 2007, 2008 and 2009, the victim and her family regularly attended get-togethers at D's home with D, her sons, and the defendant. During that time, the victim also frequently babysat for D's younger son at D's house. On those occasions, the defendant would often be present. The defendant's inappropriate behavior toward the victim started in 2007, when the victim was socializing with D's family and babysitting at D's house. Specifically, between 2007 and 2008, the defendant began talking to the victim about sex, he would caress her calf while they were watching a movie, and he would show her ‘‘in his phone . . . other girls he was messing with other than [D], telling [her] things that he would do with them and . . . what [she] should do with other guys if [she] was dating someone.''

         In 2008, the defendant began kissing and touching the victim while she was babysitting or attending social gatherings at D's house. The defendant put his fingers in her vagina and touched her breasts or buttocks multiple times between October, 2008 and October, 2009. On one occasion in the summer of 2008, the defendant performed oral sex on the victim while she was babysitting for D. Although the victim asked him to stop and tried to push him off of her, he continued for about thirty seconds and stopped when he heard D's car pull into the driveway. On several occasions when the defendant was kissing or touching the victim, he would unzip his pants and pull out his penis. Although the defendant asked the victim to perform oral sex on him two or three times, she refused, and he ‘‘laughed it off.''

         In 2010, the victim's family stopped socializing with D's family because the defendant ‘‘was getting abusive'' with D, and M did not want her daughters ‘‘to be around all that arguing.'' The last time the victim saw the defendant was at a Fourth of July party at D's house in 2010, at which the defendant tried to pull the victim into a room and to kiss her, but she was able to escape.

         In January, 2011, the victim told M about the defendant's actions. The next day, M took the victim to the East Hartford Police Department, where they met with Officer Daniel Zaleski. Zaleski spoke with the victim separately for about twenty minutes, during which time the victim disclosed the pertinent details about the defendant's repeated sexual conduct toward her. Zaleski then referred the case to a juvenile investigator, Detective Samuel Kelsey, who investigated sexual assaults involving minors, and reported the matter to the Department of Children and Families (department).

         On February 1, 2011, after receiving a phone call from Kelsey requesting to speak with him about the allegations against him, the defendant voluntarily went to the East Hartford Police Department and gave a statement. According to Kelsey, the defendant admitted to having had ‘‘close contact'' with the victim ‘‘in an inappropriate nature, [such] as touching her breast and vagina.'' Specifically, during this interview with Kelsey, the defendant ‘‘said at no time did he have sex with her; he said he was under the influence of alcohol and he can't remember all the events but he does admit having made contact with her; he said he was very sorry and that he would like to make amends in any way deemed necessary, this is not him . . . but that's no excuse.'' After Kelsey reduced the defendant's statement to writing, the defendant initialed and signed it. The entire interview lasted approximately forty minutes.

         After the interview, in the lobby of the police station, the defendant was met by Betzalda Torres, an investigator employed by the department who was investigating the alleged physical neglect and sexual abuse of the victim by the defendant. After Torres reviewed the allegations against him involving the physical neglect and sexual abuse of the victim, for the purposes of the investigation by the department, the defendant ‘‘basically, confirmed that what [the victim] said was correct, did not deny it, and . . . [he] was feeling apologetic to the family for what he ha[d] done.'' The defendant told Torres that he had been sexually inappropriate with the victim and that he had had ‘‘many'' discussions with her regarding sex and her virginity. During this interview, the defendant was not specific as to the details of the actual acts he preformed, but he explained that his alcohol and drug use played a role and he ‘‘took full responsibility'' for being ‘‘sexually inappropriate toward [the victim].''

         The defendant subsequently was arrested and, following a jury trial, was convicted of two counts of sexual assault in the second degree, four counts of risk of injury to a child, and one count of sexual assault in the fourth degree. The court, Dewey, J., subsequently sentenced the defendant to a total effective sentence of thirty years incarceration, followed by five years of special parole. This appeal followed. Additional facts will be set forth as necessary.

         I

         The defendant first claims that his conviction violated his right to due process under the constitution of Connecticut because the police lost potentially exculpatory evidence, in the form of a text message, sent from the defendant to M, in violation of State v. Morales, supra, 232 Conn. 707. Specifically, the defendant argues that because M showed the text message to Kelsey and Torres, the East Hartford police and the department were on notice of the existence of this ‘‘apologetic'' text message, creating a duty to preserve the evidence, and that their failure to do so violated his right to due process under the state constitution.[2] The state counters that there is an inadequate record to review the defendant's due process claim because he never raised this issue before the trial court, and, therefore, the court did not make the findings necessary for us to review this claim. We agree with the state.

         The following facts are relevant to our conclusion. At the defendant's trial multiple witnesses testified regarding the existence of a text message that the defendant sent to MT in February, 2011.[3] Specifically, while being cross-examined by defense counsel, M testified that the defendant sent her a text message that was a purported apology for his actions involving the victim.[4]During redirect examination by the prosecutor, M further testified that she showed this text message to Kelsey and Torres, but that she did not have a copy of the text message because her phone had been damaged, and she no longer had that phone.

         Kelsey also testified regarding the text message sent from the defendant to M while being cross-examined by defense counsel. Specifically, Kelsey testified that he had seen the text message that was a purported apology, but that he did not memorialize it or record it because he believed that there was probable cause to arrest the defendant based on the statements he made regarding the victim.[5]

         During direct examination by the prosecutor, Torres also testified regarding the existence and contents of the text message. Torres explained that M showed her a text message she had received from the defendant that was apologetic in nature. Torres further testified that she did not save that text message or make a copy of it.[6]

         In addition, Detective Frank Napolitano testified that he submitted an ex parte warrant to obtain M's cell phone records and that another detective obtained a search warrant to obtain the defendant's cell phone records. Napolitano further testified that the cell phone records indicated only that a text message had been sent from the defendant's cell phone to M's cell phone on the date in question, because too much time had lapsed for the cell phone company to be able to retrieve the contents of the text message.[7]

         On appeal, the defendant claims that his conviction violated his right to due process, under article first, § 8, of the Connecticut constitution, because the police lost potentially exculpatory evidence in the form of a text message that he had sent to M. It is not disputed that the defendant did not raise his due process claim before the trial court, and, therefore, he seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). In Golding, our Supreme Court held: ‘‘[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 harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail. . . . Id.; see also In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying third prong of Golding by eliminating word clearly before words exists and deprived).'' (Emphasis omitted; internal quotation marks omitted.) State v. Mark, 170 Conn.App. 254, 264-65, A.3d (2017).

         We conclude that we do not have a sufficient record on appeal to consider this claim. See State v. Walker, 147 Conn.App. 1, 28, 82 A.3d 630 (2013) (‘‘although Golding review requested, because defendant did not clearly raise state constitutional claim before trial court, state not put on notice that it was required to defend against such claim, and, therefore, neither state nor trial court-nor court on appeal-had benefit of complete factual inquiry''), aff'd, 319 Conn. 668, 126 A.3d 1087 (2015).

         The defendant's claim is based on the proposition that his conviction violated his right to due process under the constitution of Connecticut because the police lost potentially exculpatory evidence in the form of a text message that he sent to M, which M showed to Kelsey and Torres. ‘‘Therefore, we begin by noting that it is well established that there are two areas of constitutionally guaranteed access to evidence such that denying or foreclosing the defendant's access to that evidence may constitute a due process violation. The first situation concerns the withholding of exculpatory evidence by the police from the accused. . . . The second situation . . . concerns the failure of the police to preserve evidence that might be useful to the accused.'' (Citation omitted; emphasis omitted; internal quotation marks omitted.) State v. Johnson, 288 Conn. 236, 275-76, 951 A.2d 1257 (2008). It is this second situation that the defendant claims is applicable in the present case.

         ‘‘Despite these constitutional concerns, it is not sufficient under the federal or state constitution for a defendant simply to demonstrate that the police or the state has failed to preserve evidence. With respect to a due process violation for failure to preserve under the federal constitution, the United States Supreme Court has held that the due process clause of the fourteenth amendment requires that a criminal defendant . . . show bad faith on the part of the police [for] failure to preserve potentially useful evidence [to] constitute a denial of due process of law. . . . Notably, in [Arizona v. Youngblood, 488 U.S. 51, 57, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988)], the court observed that it had adopted a higher burden for defendants seeking to demonstrate a due process violation for failure to preserve evidence than that applicable to claims that the state has suppressed or withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (not requiring defendant to show bad faith to demonstrate due process violation). The court in You ngblood explained that it was unwilling to read the fundamental fairness requirement of the [d]ue [p]rocess [c]lause . . . as imposing on the police an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution.

         ‘‘In [State v. Morales, supra, 232 Conn. 720], we rejected the federal bad faith requirement for claims alleging a failure to preserve in violation of our state constitution. Rather, we maintained that, in determining whether a defendant has been afforded due process of law under the state constitution, the trial court must employ the . . . balancing test [laid out in State v. Asherman, 193 Conn. 695, 724, 478 A.2d 227 (1984)], weighing the reasons for the unavailability of the evidence against the degree of prejudice to the accused. More specifically, the trial court must balance the totality of the circumstances surrounding the missing evidence, including the following factors: the materiality of the missing evidence, the likelihood of mistaken interpretation of it by witnesses or the jury, the reason for its nonavailability to the defense and the prejudice to the defendant caused by the unavailability of the evidence.'' (Citations omitted; internal quotation marks omitted.) State v. Johnson, supra, 288 Conn. 276-77.

         The defendant argues that the record is adequate for review of his due process claim because it reveals: ‘‘(1) cause to believe that the lost evidence existed and some reason to believe it would have helped the defendant; (2) that the evidence was in the state's custody at a relevant point in time; [and] (3) the circumstances of the loss or destruction of evidence.''[8] The state first counters by arguing that the factors ‘‘the defendant has identified are merely some, but not all, of the considerations a trial court would balance in evaluating the four Asherman factors: materiality; likelihood of mistaken interpretation; reason for nonavailability to defense; and prejudice. . . . In particular, the defendant's factors do not include whether the missing evidence would likely be subject to misinterpretation, and whether its loss prejudiced the defendant.'' (Citation omitted.) The state continues by arguing that the first and the third factors the defendant identified are disputed and, therefore, ‘‘[t]o conclude that a verbatim copy of the text message would have helped the defendant, this court would have to resolve the conflicting testimony, which it cannot do on appeal.''[9]

         After our review of the record, we agree with the state. We iterate that because the defendant did not raise this claim before the trial court, the court did not make factual findings related to any of the Asherman factors. See State v.Darden, 239 Conn. 467, 469-71, 687 A.2d 132 (1996) (Supreme Court declined to apply Asherman factors for first time on appeal because determination of Asherman factors requires factual findings).[10] Without the necessary findings, we are unable to consider the defendant's claim on appeal. Accordingly, the ...


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