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State v. Joseph

Court of Appeals of Connecticut

June 27, 2017


          Argued February 8, 2017

         (Appeal from Superior Court, judicial district of Stamford-Norwalk, Comerford, J.)

          Allison M. Near, assigned counsel, for the appellant (defendant).

          Matthew A. Weiner, assistant state's attorney, with whom, on the brief, were Richard J. Colangelo, Jr., state's attorney, and Maureen Ornousky, senior assistant state's attorney, for the appellee (state).

          Sheldon, Beach and Harper, Js.


          HARPER, J.

         The defendant, Jose Ronald Joseph, appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and two counts of risk of injury to a child in violation of § 53-21 (a) (2). On appeal, the defendant claims that the trial court (1) violated his statutory right under General Statutes § 54-82m to a speedy trial, (2) violated his sixth amendment right to a speedy trial, (3) violated his right to procedural due process by not holding hearings on his motions for a speedy trial, and (4) committed plain error in providing a constancy of accusation instruction to the jury. We affirm the judgment of the trial court.

         From the evidence adduced at trial, the jury reasonably could have found the following facts. The victim was eight years old when the defendant began dating her mother, E.[1] E soon became pregnant with the defendant's child and the defendant moved into her home. Although Eworked two jobs and was ‘‘[a]lways working overtime, '' the defendant was unemployed. As a result, the defendant served as the victim's primary caregiver.

         While the victim's mother was at work, the defendant began playing ‘‘games'' with the victim, in which he digitally penetrated her vagina. The victim testified that, while playing ‘‘these games, [the defendant] would suck on my ear. He would twirl his fingers in my belly button. He would have me . . . sit on the couch with him with the covers over [and] there would be excessive touching in my private areas.'' The defendant proceeded to touch the victim in her ‘‘private areas'' on a weekly basis.

         That conduct continued after the birth of the defendant's daughter, A, who was the victim's half-sister. On one occasion, the victim encountered the defendant ‘‘on the couch with my little sister underneath the covers.'' When she observed the defendant touching A ‘‘in her private areas, '' the victim asked if her sister could ‘‘come play with me.'' As the victim recounted at trial, the defendant ‘‘refused and got angry. He stood up and pushed me. And then he told me that he knew what I wanted. And then he held me down and he penetrated my vagina [with] his penis.'' In the years that followed, the defendant continued to touch the victim and penetrate her with his penis on multiple occasions. That conduct transpired until the victim was nearly thirteen years old.

         When the victim was almost fourteen years old, she broke down during an argument with her mother and told her that the defendant had raped and molested her. E asked the defendant if that was true; when he said no, the discussion ended. Later that night, the victim heard her mother crying in the shower. Nevertheless, E did nothing in response to her daughter's allegations.

         In the years that followed, the victim ‘‘couldn't even stay in [her] home because [the defendant] was consistently there.'' She therefore routinely ‘‘made arrangements so that [she] would not be home.'' The victim also would ‘‘cut'' herself, and attempted to kill herself on multiple occasions.

         When the victim was nineteen years old, she informed the police of her physical encounters with the defendant. During their investigation of those allegations, the police visited the victim's former bedroom and discovered two writings that were ‘‘scratched into the wall'' behind a mirror. The writings stated, ‘‘I hate Ronald, ''[2]and, ‘‘God will save me.'' The victim testified that she wrote those statements on her bedroom wall when she was in middle school. Detective Christie Girard, who investigated the victim's former bedroom, similarly testified that the writings appeared to have been there ‘‘[f]or a while.'' The defendant corroborated that assessment at trial when he testified that he discovered the ‘‘I hate Ronald'' writing on the victim's bedroom wall in ‘‘February, 2002.''[3] Photographs of those writings were introduced into evidence at trial.

         The defendant was arrested on May 21, 2010, and subsequently was charged with two counts of sexual assault in the first degree and two counts of risk of injury to a child. On June 29, 2010, the defendant first appeared before the trial court. At that time, he was represented by a public defender, Attorney Howard A. Ehring, who requested that the matter be continued until July 20, 2010. On July 20, 2010, Ehring and the defendant again appeared before the court. At that time, Ehring requested a signed copy of the warrant and a continuance for one week.

         On July 27, 2010, Ehring appeared briefly before the court to indicate that he had filed a motion for reduction of the defendant's bond. He requested a hearing on that motion on August 4, 2010. At the August 4, 2010 proceeding, Ehring requested a further continuance to ensure that ‘‘a family member [of the defendant could] speak on his behalf.'' Ehring also requested the assistance of a French interpreter.[4] The court granted those requests and continued the matter until August 10, 2010.

         At the outset of the August 10, 2010 proceeding, Ehring informed the court of a potential conflict of interest in his representation of the defendant. He therefore filed a motion for the appointment of a special public defender and requested a continuance, which the court granted. On August 31, 2010, the defendant and Ehring appeared before the court, at which time the court appointed Attorney John W. Imhoff, Jr., as the defendant's special public defender. Because Imhoff was recovering from knee surgery, the court continued the matter for one month.

         On October 1, 2010, Imhoff appeared before the court with the defendant. At that time, the prosecutor indicated that she had provided discovery to Imhoff earlier that day. Imhoff, in turn, requested a continuance for three weeks to review those materials with the defendant, which the court granted. Imhoff appeared briefly before the court on November 18, 2010, and requested a further continuance, which the court again granted.

         On the morning of January 5, 2011, Imhoff and the defendant appeared before the court. The court began by noting that a ‘‘Haitian interpreter'' would not be available until later in the afternoon and inquired as to whether the defendant spoke ‘‘any English at all . . . .'' Imhoff replied, ‘‘Yes, Your Honor. He's written me several letters [and] his grammar is better than most of my clients.'' Imhoff nevertheless informed the court that the defendant ‘‘would prefer tohave'' the assistance of an interpreter. The court thus continued the matter until that afternoon. Later in the day, however, the prosecutor informed the court that, due to a miscommunication, the interpreter had left the courthouse. The interpreter's office further indicated that it needed ‘‘a little over a week's continuance to get somebody here.'' Accordingly, the court continued the matter.

         Imhoff and the defendant appeared before the court two weeks later. The prosecutor informed the court that ‘‘[t]here's been no indication that [the defendant] had a willingness to plead to any of the charges that the state would proceed on.'' Imhoff confirmed that account and opined that the matter should be placed on the firm jury list, which the court agreed to do at that time.

         On December 23, 2011, the defendant filed a pro se motion for a speedy trial. That one page motion was completed on a preprinted form and was signed by the defendant. The certification portion of that form, which indicates the date of service on the Office of the State's Attorney, was left blank. That motion was denied on January 4, 2012. The clerk who signed the ‘‘order'' portion of the motion by circling ‘‘denied'' and writing, ‘‘Motion filed pro se, defendant is represented by an attorney. Copy mailed to [the defendant].''

         On February 7, 2012, the defendant attempted to file a second pro se motion for a speedy trial. That motion once again utilized a preprinted form. The defendant did not sign that motion or complete the certification portion to indicate that it was served on the Office of the State's Attorney. The motion was accompanied by a one paragraph note that stated: ‘‘This missive, it's to inform that I called ‘Maitre' Imhoff today . . . and left a message at his office asking him to go to the clerk's office . . . to signed [and] completed the ‘Motion for Speedy Trial' encl. Therefore, I respectfully implore the clerk to inform him on reception of this missive.'' There is no indication in the record of any court action on that request, apart from the following handwritten notation: ‘‘3/1/12 per Attorney Imhoff: he has no intent to file this motion [and] he withdraws what was filed by his client.''

         On April 5, 2012, the defendant filed a third pro se motion for a speedy trial, again utilizing the same preprinted form. Although he signed that form, which was accompanied by another one paragraph note, he did not complete the certification portion to indicate that he had served it on the Office of the State's Attorney. The clerk who signed the ‘‘order'' portion of the motion circled ‘‘denied'' and wrote, ‘‘(White, J.) Denied-filed pro se; defendant is represented, counsel does not want to file.'' While the defendant was attempting to file those pro se motions with the court, Imhoff filed several unrelated motions on his behalf, including a motion for a bill of particulars, a ‘‘motion for production of the Department of Children and Families' medical and psychiatric records of the state's witness, '' and a motion ‘‘for notice of subject matter of proposed expert testimony.''

         On October 17, 2012, Attorney Haldan E. Connor, Jr., filed an appearance in lieu of Imhoff as the defendant's counsel.[5] On November 1, 2012, Connor appeared before the court, at which time the prosecutor remarked that she believed that Connor ‘‘being new to the case . . . probably needs a little bit more time to talk to his client prior to setting this case down for a trial date.'' Connor concurred and requested a continuance until November 15, 2012, which the court granted. When Connor appeared before the court on that date, however, he informed the court that the matter ‘‘should go back on the jury list'' because ‘‘[w]e weren't able to reach any kind of resolution'' with the state.

         On November 26, 2012, the defendant attempted to file a pro se motion to dismiss. That handwritten motion set forth ten distinct grounds, including the denial of his right to a speedy trial.[6] The defendant further requested a hearing on his motion. There is no indication in the record that the defendant provided a copy of that motion to the state or that the court took any action on the defendant's request. Furthermore, on the day that the defendant's motion to dismiss was received, a criminal caseflow coordinator, Ryan Flanagan, sent a written response to the defendant. In that correspondence, Flanagan advised the defendant that ‘‘[w]e cannot accept or file motions from defendan[ts] who are currently represented by attorneys. Our records indicate [that] Attorney Connor has filed an appearance in your case. Therefore, we cannot accept your motion and it is being returned to you. If you have any questions you can contact your attorney . . . .'' The letter then recited Connor's contact information.

         On April 16, 2013, Attorney Matthew Couloute filed an appearance in lieu of Connor as the defendant's counsel.[7] On December 11, 2013, the parties appeared before the court, at which time the state indicated that the defendant faced a maximum possible exposure of eighty years incarceration on all of his pending charges. The state then formally offered the defendant the opportunity to enter a guilty plea to one count of sexual assault in the first degree in exchange for ‘‘a ten year sentence'' with a two year mandatory minimum, ten years of special parole and registration as a sexual offender. The defendant rejected that offer. Couloute informed the court that the defendant proposed a counteroffer under which he would plead guilty in exchange for a sentence of time already served. The court summarily rejected that counteroffer.

         At that proceeding, the defendant contended that he had not been provided with any notice of the charges against him, stating that ‘‘I want to know what's . . . the accusation. . . . I don't have no notion of the accusation. I don't have no due process. . . . [The state has not] accused me of anything.'' In response, the court apprised the defendant that the information contained four counts alleging sexual assault in the first degree and risk of injury to a child. Couloute then informed the court that, contrary to his client's representation, he had spoken with the defendant about those offenses and had explained to him their elements and the range of possible penalties.

         Later that day, jury selection for the defendant's criminal trial commenced, and a trial was scheduled for the following month. That trial did not take place due to the death of Couloute's father. As Couloute explained to the court on February 24, 2014, in late December his ‘‘father had a stroke and was hospitalized [and] he subsequently passed away on January 7th.'' Couloute, therefore, was unavailable while tending to ‘‘those concerns and his estate.'' As aresult of those ‘‘extraordinary family circumstances, '' the court declared a mistrial and dismissed the potential jurors by agreement of the parties. The parties agreed to begin selecting a new jury on April 8, 2014.

         Couloute and the defendant appeared before the court on that date. At the outset, the court explained that, due to unforeseen circumstances, jury selection would be delayed by one day. The court then asked the parties if they wanted to put any other matters on the record. At that time, Couloute informed the court that communications with the defendant ‘‘ha[d] broken down.'' Couloute explained that it was the defendant's position that ‘‘no one has reviewed his file with him.'' Couloute indicated that he had met with the defendant one day earlier at the correctional facility and discussed his file with him, as he had done on prior occasions. Couloute also informed the court of a disagreement over trial strategy, as the defendant was ‘‘adamant'' in his desire to call certain witnesses. Couloute had advised the defendant that he would not call those witnesses, stating that ‘‘[s]trategically, I don't think it's smart to call them. And at this point in time, when it comes to that matter, I don't think it's prudent to put those witnesses on the witness list.'' Couloute indicated that those witnesses were minors whom he believed ‘‘add nothing to the . . . case that would help defend [the defendant]. . . . I do believe the use of these witnesses and the context in which their testimony would be offered isn't relevant, nor is it probative . . . or useful for his . . ...

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