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State v. Purcell

Court of Appeals of Connecticut

July 4, 2017

STATE OF CONNECTICUT
v.
ROBERT JOHN PURCELL

          Argued April 5, 2017.

         Appeal from Superior Court, judicial district of New Haven, O'Keefe, J.

         Procedural History

         Substitute information charging the defendant with four counts of the crime of risk of injury to a child, two counts of the crime of sexual assault in the second degree and with the crime of sexual assault in the first degree, brought to the Superior Court in the judicial district of New Haven, where the court, O'Keefe, J., denied the defendant's motion to suppress certain evidence; thereafter, the matter was tried to the jury; subsequently, the court denied the defendant's motion for a mistrial; verdict and judgment of guilty of three counts of risk of injury to a child, from which the defendant appealed to this court. Affirmed.

          Richard Emanuel, for the appellant (defendant).

          Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and Seth R. Garbarsky, senior assistant state's attorney, for the appellee (state).

          Alvord, Keller and Dennis, Js.

         Syllabus

         The defendant, who had been convicted of three counts risk of injury to a child in connection with four separate incidents, appealed to this court, claiming, inter alia, that the trial court abused its discretion when it denied his motion for a mistrial after the mother of the minor victim testified that the victim had been diagnosed with post-traumatic stress disorder. The defendant also claimed that the court improperly denied his motion to suppress certain statements that he had made to two police officers during a custodial interrogation. After the officers advised the defendant of his constitutional rights, he told them that he had consulted with an attorney, who advised him not to talk to them about anything that could be misconstrued as inappropriate or about other matters pertaining to the victim's allegations. The defendant expressed to the officers misgivings about his attorney's advice, but continued talking with them and thereafter stated, inter alia, ‘‘See, if my lawyer was here, I'd . . . we could talk. That's, you know, that's it, '' and, ‘‘I'm supposed to have my lawyer here. You know that.'' On appeal, the defendant claimed that the officers violated his federal and state constitutional rights when they failed to cease questioning him because the statements at issue constituted clear and unequivocal invocations of his right to counsel. The defendant further claimed that even if the statements were ambiguous or equivocal, the officers were required under the article first, § 8, of the state constitution to cease questioning him and to clarify his statements. The defendant also asserted that the harmfulness of the mother's testimony about the victim's diagnosis could not be cured by the instruction that the court gave to the jury immediately after the testimony because the diagnosis related to the victim's credibility, which was crucial to the state's case in light of the lack of physical evidence that the defendant sexually assaulted the victim.

         Held:

         1. This court found unavailing the defendant's claim that the trial court abused its discretion in denying his motion for a mistrial, which was based on his assertion that the jury's verdict was substantially swayed by testimony from the victim's mother that the victim had been diagnosed with post-traumatic stress disorder and that the testimony about the diagnosis constituted harmful error that could not be cured by the trial court's instruction to the jury immediately thereafter: the diagnosis of post-traumatic stress disorder was mentioned only during the mother's testimony, the court instructed the jury that the diagnosis had nothing to do with the evidence, and that the jury should ignore and not make any decision on the basis of that testimony, and the defendant offered no reason why that instruction was insufficient to break the link between the diagnosis and the charges against the defendant, and to prevent the jury from considering the isolated statement of the victim's mother during its deliberations; moreover, notwithstanding the defendant's assertion that the testimony constituted an improper endorsement of both his guilt and the victim's credibility, the jury's requests during deliberations to hear certain statements and to rehear portions of the victim's testimony suggested that although the question of the victim's credibility was a difficult one, the jury's finding that the defendant was not guilty of sexual assault with respect to any of the alleged incidents and was not guilty of an additional count of risk of injury to a child as charged indicated that the jury did not find all of the victim's testimony to be credible.

         2. The trial court properly denied the defendant's motion to suppress the statements that he made to the police officers during their custodial interrogation of him, as he did not clearly and unequivocally invoke his right to counsel and, thus, the officers were not required to cease questioning him:

a. Invocation of one's right to counsel requires, at a minimum, some statement that reasonably can be construed as an expression of a desire for the assistance of counsel, and this court concluded that a reasonable police officer under the circumstances here would not have understood as a clear and unequivocal request for counsel the defendant's statements, ‘‘See, if my lawyer was here, I'd . . . we could talk. That's, you know, that's it, '' and, ‘‘I'm supposed to have my lawyer here. You know that''; although the defendant expressed to the officers misgivings about his attorney's advice, he continued talking with them, and the defendant's references to counsel might have been an attempt to persuade the officers to limit the interview's scope, a reiteration of his attorney's advice not to speak about the incidents at issue without counsel present, a request for an attorney or an expression that it was prudent to have an attorney present, rather than a request by the defendant that he actually wanted to speak to an attorney before proceeding with the interview.
b. Contrary to the defendant's unpreserved claim that article first, § 8, of the state constitution provided greater protection than does the federal constitution by requiring that the police officers cease questioning him to clarify any ambiguous or equivocal references to counsel that he made during the custodial interrogation, a review of this state's constitutional language, precedents and history did not disclose any meaningful difference between the state and federal constitutional protections against compulsory self-incrimination, courts in the majority of other states have concluded that their state constitutions do not afford greater protections in this context than does the federal constitution, the reasoning of other states' courts that have found greater protections in their state constitutions was unpersuasive, and the defendant's policy arguments were insufficient to justify any divergence from this state's Supreme Court precedent that the self-incrimination and due process clauses of article first, § 8, are coextensive with their federal counterparts and, therefore, this court declined to adopt a new state constitutional standard with respect to ambiguous or equivocal references to counsel.

          OPINION

          ALVORD, J.

         The defendant, Robert John Purcell, appeals from the judgment of the trial court, rendered after a jury trial, of conviction of one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (1) and of two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2).[1] The jury found the defendant not guilty of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), two counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), and one count of risk of injury to a child in violation of § 53-21 (a) (2). On appeal, the defendant raises various claims pertaining to testimony by the victim's mother[2] that the victim had been diagnosed with post-traumatic stress disorder (PTSD testimony) and the trial court's denial of his motion to suppress statements that he made to the police during a custodial interrogation. With respect to the PTSD testimony, the defendant claims that allowing the victim's mother to testimony about his medical conditions constituted a harmful evidentiary error, which was based on the PTSD testimony. With respect to his motion to suppress, the defendant claims that the interrogating detectives violated Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), by continuing to question him after he clearly and unambiguously invoked his right to counsel. Alternatively, the defendant argues that, even if his invocations were ambiguous or equivocal, and therefore ineffective under Edwards, article first, § 8, of the Connecticut constitution required the interrogating detectives to clarify his statements before questioning him further. We reject the defendant's claims and, accordingly, affirm the judgment of the trial court.

         On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. In 2002, the victim's parents adopted the victim, who had several medical conditions, including autism.[3] The defendant is the victim's uncle by marriage. The victim and his family had only a casual relationship with the defendant, whom they saw on average three to five times a year for holidays and family events. The victim initially viewed the defendant as ‘‘just an ordinary uncle, '' but, in 2010, when the victim was twelve and the defendant was seventy, the defendant began engaging in sexually inappropriate behavior with the victim.

         Three incidents in particular served as the basis for the defendant's conviction. In August, 2010, the victim, the defendant, and other family members went to lunch at a restaurant. After lunch, the defendant and the victim went to use the bathroom. While in the bathroom, the defendant began rubbing his penis and asked the victim to rub it. The victim refused, left the bathroom, and returned to the table where his family was sitting. In December, 2011, the victim and his father went to the defendant's house to visit his grandparents, who lived with the defendant and his wife. While the defendant and the victim's father spoke to the victim's grandfather in the basement apartment, the victim went upstairs to find the defendant's cats. The victim found one of the cats in the defendant's bedroom and began playing with it on the defendant's bed. Sometime thereafter, the defendant came into the bedroom and had contact with the victim's penis in a sexual and indecent manner. Finally, in August, 2013, the defendant and other members of the victim's family went to the victim's middle school to watch him perform in a school play. After the play, the defendant went to use the school bathroom, and the victim followed him inside so that he could remove his makeup. While in the bathroom, the defendant had contact with the victim's penis in asexual and indecent manner.

         In September, 2013, the victim's mother found pictures on the victim's Nintendo DS game console that concerned her, including pictures of the clothed stomachs of the defendant and the victim's father and two pictures of circumcised penises.[4] The victim's mother deleted the penis pictures. Later, she told the victim's father about the pictures she found and asked him to talk to the victim about them. Two weeks later, on Saturday, September 28, 2013, the victim's father engaged in a discussion with the victim about his sexuality.[5] The victim's father asked if the victim liked girls or boys, to which the victim replied that he liked girls. The victim's father explained that, in the eyes of the Catholic Church, it is bad and a sin to like boys and that sex should occur between a man and a woman. The victim then acknowledged that he had started to like and think about boys but maintained, ‘‘[i]t's not my fault.'' The victim told his father that the defendant ‘‘has been having sex with me.''

         The following Monday, September 30, 2013, after the victim left for school, the victim's parents went to the police station to report his allegation. While at the police station, the victim's parents received a phone call from the victim's school social worker informing them that the victim told him that his ‘‘Uncle Robert'' was having sex with him.

         The defendant was subsequently arrested on the basis of the victim's allegations. The operative long form information charged the defendant with seven offenses in connection with four separate incidents. Relative to the August, 2010 incident, the defendant was charged with risk of injury to a child in violation of § 53-21 (a) (1). Relative to the December, 2011 incident, the defendant was charged with sexual assault in the first degree in violation of § 53a-70 (a) (1) and risk of injury to a child in violation of § 53-21 (a) (2). Relative to an incident that allegedly occurred in April, 2012, the defendant was charged with sexual assault in the second degree in violation of § 53a-71 (a) (1) and risk of injury to a child in violation of § 53-21 (a) (2). Finally, relative to the August, 2013 incident, the defendant was charged with sexual assault in the second degree in violation of § 53a-71 (a) (1) and risk of injury to a child in violation of § 53-21 (a) (2).

         After a trial, a jury found the defendant guilty of the risk of injury counts with respect to the August, 2011, the December, 2011, and the August, 2013 incidents. The jury found the defendant not guilty of all counts of sexual assault and not guilty of the risk of injury count relative to the alleged incident in April, 2012. The defendant was sentenced to a total effective term of sixteen years of imprisonment, execution suspended after nine years, and ten years of probation. This appeal followed. Additional facts will be set forth as necessary.

         I

         We begin with the defendant's claims pertaining to the PTSD testimony. The defendant claims that the PTSD testimony was hearsay and constituted a harmful nonconstitutional evidentiary error, and, therefore, the court abused its discretion by denying his motion for a mistrial. In particular, the defendant argues that the PTSD testimony ‘‘constituted an [improper] endorsement or confirmation of [the victim's] credibility-and the defendant's guilt, '' and improperly embraced an ultimate issue in the case, i.e., whether some or all of the events the victim described actually happened, thereby causing his PTSD. The defendant argues that the prejudicial nature of this evidence was beyond the curative powers of the court because the PTSD diagnosis related to the victim's credibility, which was crucial to a successful prosecution because the state's case lacked physical evidence of sexual assault and portions of the victim's testimony ‘‘were highly implausible.'' The state responds that the court's ‘‘clear and forceful curative instructions . . . expressly broke any link between the PTSD diagnosis and the charges for which the defendant was on trial . . . and expressly removed [the PTSD] testimony . . . from evidence entirely.'' As a result, the state argues, the PTSD testimony did not constitute a harmful evidentiary error and the court did not abuse its discretion by denying the defendant's motion for a mistrial. We agree with the state.

         The following additional facts are relevant to these claims. The victim's mother was the first witness as the trial commenced. She began her testimony by providing background on the victim and his medical conditions, including his autism. During a colloquy with the prosecutor about other medical conditions that the victim had been diagnosed with, defense counsel objected on the ground of hearsay. The court overruled the objection but admonished the victim's mother to limit her testimony to her understanding of her son's medical conditions and not to testify about what someone else told her. After further discussion about the victim's medical conditions, the following colloquy occurred:

‘‘[The Prosecutor]: I think we're missing one or two other conditions, if the-if the court pleases.
‘‘The Court: Okay. That's the question then. What other conditions?
‘‘[The Prosecutor]: Fair enough.
‘‘The Court: Yeah. Go ahead.
‘‘[The Victim's Mother]: Okay. He also suffers from post-traumatic stress disorder, which was a later diagnosis after why we're here. I'm trying to think what else was on there. I think that's-
‘‘[The Prosecutor]: Well, let me ask you this.
‘‘[The Victim's Mother]: Yeah. Okay.
‘‘[The Prosecutor]: Does he take any meds currently?
‘‘[The Victim's Mother]: Yes, he does.
‘‘[The Prosecutor]: Okay. And what type of meds does he take?
‘‘[The Victim's Mother]: I'm sorry. He takes Concerta for [attention deficit hyperactivity disorder]. He-
‘‘[The Prosecutor]: Is that one of the-
‘‘The Court: The jury can be excused for a minute.''

(Emphasis added.)

         Thereafter, the jury exited the courtroom, and the court excused the victim's mother from the witness stand. The court then engaged in a lengthy discussion with counsel about how to address the PTSD testimony. The court observed: ‘‘PTSD is somebody else's opinion that-that a person has suffered a stressful event and is reacting to it. So, it's almost a comment on circumstantial evidence of the credibility of the [victim].'' Defense counsel explained that he had never seen any evidence that the victim had been diagnosed with PTSD and opined: ‘‘I don't know how we cure that at this point.'' Although the prosecutor acknowledged that he was aware of the PTSD diagnosis prior to the PTSD testimony, he maintained that he did not know that the mother would testify about it.[6] The prosecutor further disputed the court's suggestion that the PTSD testimony constituted circumstantial evidence of the credibility of the victim because it was his understanding that the victim was prescribed medication for PTSD based on his symptoms, not based on a discussion with someone about a traumatic event. The court explained: ‘‘As soon as I heard that, I interpreted it-that, as someone treated the [victim]. She said it was related to this event. They determined that it was a valid event and diagnosed him with a reaction to this event. That's my-my interpretation of when a person says, he's treated for PTSD as a result of this event.''

         After discussing the import of the statement by the victim's mother with the prosecutor further, the court asked defense counsel for his opinion. Defense counsel stated: ‘‘Your Honor, again, I was not prepared for that. I don't think it can be cured. I move for a mistrial at this point, Your Honor. I think it's an-she says that an expert has diagnosed him with this condition and it relates to the reason that we're here.'' The court and the parties continued to discuss how best to address the PTSD testimony. After a brief recess, the court issued the following ruling: ‘‘Well, I don't think that there's enough for a mistrial at this point. I'll give defense counsel the option. I'll give the strongest instruction possible on this issue of PTSD, and point out to [the jury], as the prosecutor has said, that there's really nothing in the record which would indicate that the-whatever that's about is related to this event. Now, PTSD may-may come up later in the trial, but everything is context. At this point, it's-you know, link it- I would think that the jury would link that to this event, and it's somebody else's opinion about- really, about the credibility of the complainant, or I'll ignore it, if that's what you want.'' Defense counsel stated, ‘‘I feel like I'm in a catch-22, '' because he did not want to highlight the testimony, but he decided that it would be ‘‘prudent that a curative instruction be administered.''

         When the jury returned to the courtroom, the court gave the following instruction: ‘‘The witness will be back in a minute, but before she comes back, let me talk about-she said that there was-the PTSD-there was a PTSD diagnosis. That has nothing to do with the evidence in this-in this case. There's nothing in the record that links the PTSD to this case. Ignore it. Don't make any decision in this case, none, based on what she said about PTSD. Just completely and totally ignore it, like it isn't even part of the record, like it isn't even part of the evidence. Okay. All right. She can come back.'' (Emphasis added.)

         We begin our analysis by setting forth the legal principles that govern the defendant's claims. ‘‘When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful. . . . [A] nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict. . . . [O]ur determination [of whether] the defendant was harmed by the trial court's . . . [evidentiary ruling] is guided by the various factors that we have articulated as relevant [to] the inquiry of evidentiary harmlessness . . . such as [1] the importance of the . . . testimony in the [state's] case, [2] whether the testimony was cumulative, [3] the presence or absence of evidence corroborating or contradicting the testimony . . . on material points, [4] the extent of cross- examination otherwise permitted, and, of course, [5] the overall strength of the [state's] case. . . . Most importantly, we must examine the impact of the evidence on the trier of fact and the result of the trial.'' (Internal quotation marks omitted.) State v. Rodriguez, 311 Conn. 80, 89, 83 A.3d 595 (2014); see also State v. Bouknight, 323 Conn. 620, 626, 149 A.3d 975 (2016) (‘‘[t]he proper standard for determining whether an erroneous evidentiary ruling is harmless should be whether the jury's verdict was substantially swayed by the error'' [internal quotation marks omitted]).

         ‘‘In our review of the denial of a motion for mistrial, we have recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial. The decision of the trial court is therefore reversible on appeal only if there has been an abuse of discretion.'' (Internal quotation marks omitted.) State v. Berrios, 320 Conn. 265, 274, 129 A.3d 696 (2016). On appeal, we are cognizant of the fact that ‘‘[t]he trial court is better positioned than we are to evaluate in the first instance whether a certain occurrence is prejudicial to the defendant and, if so, what remedy is necessary to cure that prejudice. . . . In general, abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based on improper or irrelevant factors. . . . Therefore, [i]n those cases in which an abuse of discretion is manifest or where injustice appears to have been done, reversal is required.'' (Citation omitted; internal quotation marks omitted.) State v. O'Brien-Veader, 318 Conn. 514, 555, 122 A.3d 555 (2015).

         ‘‘While the remedy of a mistrial is permitted under the rules of practice, it is not favored. . . . If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided.'' (Internal quotation marks omitted.) Id., 554-55. ‘‘[I]n the absence of evidence that the jury disregarded any of the court's instructions, we presume that the jury followed the instructions.'' State v. A. M., 324 Conn. 190, 215, 152 A.3d 49 (2016). Mere conjecture by the defendant is insufficient to rebut this presumption. State v. Gaffney, 209 Conn. 416, 422, 551 A.2d 414 (1988); State v. Reddick, 33 Conn.App. 311, 336 n.13, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994). ‘‘The burden is on the defendant to establish that, in the context of the proceedings as a whole, the challenged testimony was so prejudicial, notwithstanding the court's curative instructions, that the jury reasonably cannot be presumed to have disregarded it.'' State v. Nash, 278 Conn. 620, 659-60, 899 A.2d 1 (2006).

         Having scrupulously reviewed the record in this case, we are not persuaded that the jury's verdict was substantially swayed by the PTSD testimony or that the court abused its discretion by denying the defendant's motion for a mistrial. The only time the victim's PTSD diagnosis was mentioned was during the testimony of the victim's mother. After that testimony, the court instructed the jury that the victim's PTSD diagnosis ‘‘has nothing to do with the evidence . . . in this case'' and that ‘‘[t]here's nothing in the record that links the PTSD to this case.'' In addition, the court admonished the jury that it was not to ‘‘make any decision in this case, none, based on what [the victim's mother] said about PTSD'' and that they were to ‘‘completely and totally ignore it, like it isn't even part of the record, like it isn't even part of the evidence.'' The defendant has offered no persuasive reason why this prompt, clear, and forceful instruction by the court was insufficient to break the link between the PTSD diagnosis and the charges for which the defendant was on trial and to prevent the jurors from considering this isolated statement by the victim's mother during their deliberations.

         We recognize that the state's case was not particularly strong, given the lack of physical or eyewitness evidence, and that, as a result, the victim's testimony was crucial to a successful prosecution. See State v. Maguire, 310 Conn. 535, 561, 78 A.3d 828 (2013) (sexual assault case not strong where ‘‘there was no physical evidence of abuse, and there was no eyewitness testimony other than that of the victim, whose testimony at times was both equivocal and vague''); State v. Ritrovato, 280 Conn. 36, 57, 905 A.2d 1079 (2006) (‘‘[a]lthough the absence of conclusive physical evidence of sexual abuse does not automatically render the state's case weak where the case involves a credibility contest between the victim and the defendant . . . a sexual assault case lacking physical evidence is not particularly strong, especially when the victim is a minor'' [citation omitted]). During its deliberations, the jury sent notes to the court requesting to hear the victim's police interview, which was not in evidence, and to rehear portions of the victim's testimony, which suggested that the question of the victim's credibility was a difficult one. See State v. Devalda, 306 Conn. 494, 510, 50 A.3d 882 (2012) (‘‘[w]e have recognized that a request by a jury may be a significant indicator of their concern about evidence and issues important to their resolution of the case'' [internal quotation marks omitted]). In addition, the jury's finding that the defendant was not guilty of sexual assault with respect to any of the alleged incidents and not guilty of one of the counts of risk of injury indicates that the jury did not in fact find all aspects of the victim's testimony to be credible. See State v. Samuel M., 159 Conn.App. 242, 255, 123 A.3d 44 (2015) (jury's finding of guilty of three counts of sexual assault in the first degree and one count of risk of injury and finding of not guilty of nine other counts of sexual assault in the first degree ‘‘demonstrates that [the jury] did reject a vast portion of [the victim's] testimony''), aff'd, 323 Conn. 785, 151 A.3d 815 (2016).

         Nevertheless, a jury may properly decide ‘‘what-all, none, or some-of a witness' testimony to accept or reject.'' (Internal quotation marks omitted.) State v.Victor C., 145 Conn.App. 54, 61, 75 A.3d 48, cert. denied, 310 Conn. 933, 78 A.3d 859 (2013). The defendant has not persuaded us that the jury failed to heed the court's curative ...


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