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State v. Swilling

Court of Appeals of Connecticut

April 3, 2018

STATE OF CONNECTICUT
v.
RICARDO SWILLING

          Argued November 15, 2017

         Procedural History

         Two part substitute information charging the defendant, in the first part, with the crimes of kidnapping in the first degree, assault in the first degree and home invasion, and, in the second part, with three counts of beinga persistent dangerous felony offender, brought to the Superior Court in the judicial district of Waterbury, where the first part of the information was tried to the jury before K. Murphy, J.; verdict of guilty of kidnapping in the first degree, home invasion and the lesser included offense of assault in the second degree; thereafter, the defendant was presented to the court on conditional pleas of nolo contendere to two counts of being a persistent dangerous felony offender in the second part of the information; judgment of guilty in accordance with the verdict and pleas, from which the defendant appealed. Affirmed.

          Robert L. O'Brien, assigned counsel, with whom, on the brief, was William A. Adsit, assigned counsel, for the appellant (defendant).

          Melissa L. Streeto, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Marc G. Ramia, senior assistant state's attorney, for the appellee (state).

          Alvord, Keller and Beach, Js.

          OPINION

          KELLER, J.

         The defendant, Ricardo Swilling, appeals from the judgment of conviction, rendered following a jury trial, of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), home invasion in violation of General Statutes § 53a-100aa (a) (2), and assault in the second degree in violation of General Statutes § 53a-60 (a) (2).[1] Additionally, following the defendant's pleas of nolo contendere, the defendant was convicted of two counts of being a persistent dangerous felony offender in violation of General Statutes § 53a-40 (a) (1), as alleged in part B informations that were related to the kidnapping and home invasion charges.[2] The defendant claims that (1) the trial court violated his due process right to a fair and impartial trial by questioning two witnesses during the state's case-in-chief, (2) the court improperly permitted the victim to make an in-court identification of him absent a showing that she previously had made a nonsuggestive out-of-court identification of him, (3) the court improperly admitted evidence of his prior felony convictions, (4) the court improperly admitted a recording of a 911 call made by the victim, and (5) the cumulative effect of the court's errors deprived him of his right to a fair and impartial trial. We affirm the judgment of the trial court.

         The jury reasonably could have found the following facts. In December, 2014, the victim, Barbara Wilson, resided in an apartment complex in Waterbury in a unit that was leased to her and her daughter. The living room and the kitchen were located on the first floor of the unit, and three bedrooms and a bathroom were located on the second floor of the unit. The victim had a practice of letting others rent space in her apartment, at a usual rate of $150 per week. The victim first met the defendant in 2013. In early December, 2014, a mutual friend of the victim and the defendant, identified in the record as ‘‘Luis, '' appeared at the victim's residence with the defendant. Luis asked the victim if the defendant could stay at her apartment for a few days. Initially, the victim did not consent to Luis' request and the two men departed. Later that day, however, the defendant appeared once more at the victim's apartment to discuss the matter further. The defendant gave the victim $20 and some brandy.

         During this second meeting, the victim agreed to let the defendant pay her to stay at the apartment. The defendant explained that he worked overnight and would come and go from the residence as necessary. The victim, who was almost always at home, did not give the defendant a key to the apartment, but simply let him in whenever he knocked on the door. The victim had only two keys for the residence, one which she kept and another that was kept by her parents.

         The defendant stayed at the apartment over the course of two weeks in December, 2014, sometimes spending the overnight hours there. He frequently came to the residence to sleep either in an unfurnished bedroom or on a sofa. He paid the victim $70. During the time that the defendant spent at the apartment, he was never left alone there and, prior to the events at issue, when the defendant was present at the apartment, there was always one or more third parties present along with the victim. The defendant did not keep any personal belongings at the apartment, but always carried his belongings with him in a duffel bag.

         On December 24, 2014, at approximately 10 a.m., the victim was at the apartment with her boyfriend, Eddie Ortiz, when the defendant arrived at the apartment. The defendant asked for a ride. Soon thereafter, Ortiz drove the defendant to a bus stop located near a liquor store. Then, Ortiz drove the victim toa store. At approximately 11 a.m., he drove her back to her apartment. The victim entered the apartment alone and locked the door.

         At approximately 11:30 a.m., the victim observed the defendant standing near the front door inside of her apartment. The victim asked the defendant how he gained access to the apartment. What followed was a violent physical struggle between the victim and the defendant. The defendant wrapped his hands around the victim's throat and began to strangle her. The victim was experiencing difficulty breathing, and she managed to pry the defendant's hands off her. The victim fled the apartment by means of the front door, but the defendant pursued her from behind, dragged her back inside the apartment, and resumed strangling her.

         The victim physically struggled with the defendant and, eventually, the victim and the defendant were on the floor of the kitchen. The victim was able to twist her body to break free of the defendant's grasp, at which time she got back on her feet and reached a rear door inside the kitchen. The defendant cornered the victim between a stove and a sink. At this point in time, the defendant grabbed two knives that were on top of a nearby microwave oven and began to stab the victim repeatedly while she was standing in front of the stove. While the defendant was stabbing her and yelling at her, the victim raised her hands to protect her face. The victim sustained multiple stab wounds and was bleeding.

         There was a knock at the victim's front door. The defendant told the victim that if she said anything, he would kill her. He pushed the victim upstairs to the bathroom and forced her to stand in a bathtub. He threatened her with a knife until the knocking ceased.

         The defendant led the victim to her bedroom and continued to yell at her. Among the things that the defendant stated was that if he was not going to have a good Christmas, neither was the victim. The victim partially undressed and began to tend to her wounds with a T-shirt. She was permitted to go into the bathroom to wash some of the blood off her body and to put on a clean shirt. While the victim was cleaning her body, the defendant remained in the bathroom and threatened her with a knife. The defendant noticed that a knife blade had broken off during the attack and remained stuck in the victim's arm. The defendant told the victim that he almost felt ‘‘some kind of sympathy'' for her and he removed the broken blade from her arm.

         The defendant, still holding a knife, led the victim back into her bedroom, where he remained with the victim for several hours. He yelled at the victim and repeatedly used his cell phone, but apparently was unable to reach anyone on his cell phone. Additionally, the defendant watched a movie and consumed alcohol during this time.

         At approximately 5 or 6 p.m., there was another knock on the victim's front door. The victim told the defendant that it was likely that her daughters were at the door and that, if he let them in, she would not say anything about what had occurred and that he could get a ride somewhere. The defendant refused, and he warned her to remain quiet. When the knocking stopped, the victim asked the defendant for a cigarette. The defendant approached the victim and punched her in the face. The defendant and the victim shouted at one another and, after using his cell phone, he approached the victim, who was sitting on a bed, kicked her, and pushed her into a wall. The defendant continued to yell things that were incomprehensible to the victim and continued to threaten the victim. For example, he told the victim that he found more liquor, he was ready for ‘‘round two, '' and that she was ‘‘really going to get it.'' The victim, under the constant supervision of the defendant, remained in the bedroom with the defendant until approximately 4 a.m., the following day.

         At that point in time, the defendant ordered the victim to prepare chicken for him to eat. He escorted her to the kitchen where she complied with his request. The defendant forced the victim to sit next to him in the living room while he ate the meal she had prepared, but he did not permit her to eat or drink anything. The defendant warned the victim not to ‘‘make a move.''

         At approximately 6 or 7 a.m., the defendant escorted the victim back upstairs. The victim, who had barely slept the night before, felt weak and sat on the bed. The defendant stabbed her in the right arm with a knife. The defendant repeatedly yelled at the victim. The victim asked the defendant if she could return to the bathroom to tend to her wounds, but he refused this request. Throughout the day, the defendant continued to consume alcohol and watch television. Although he did not do so previously during this incident, the defendant eventually fell into a deep sleep.

         At approximately 8 p.m., the victim sensed an opportunity to rush past the sleeping defendant and make her way out of the apartment. She quickly exited her apartment and approached the apartment of a neighbor, Luis Matos. The victim knocked frantically on Matos' door. Matos let the victim inside of his apartment where she called 911. Police and emergency medical personnel arrived at the scene shortly thereafter. The victim was transported to a nearby hospital where she received treatment for her many stab wounds.

         Waterbury police Officer Brian LaPerriere was one of several police officers to respond to the scene. When he encountered the victim, her clothing was covered in dried blood and several of her stab wounds were apparent to him. After hearing the victim's version of events, the officers entered the victim's apartment through a rear window on the second floor. They observed bloodstains throughout the residence and bloody knives on the floor of the kitchen and bedroom. While he was in the process of searching the apartment, LaPerriere discovered the defendant hiding in a closet on the first floor. The defendant complied with LaPerriere's commands, and provided the officers with his name and his street name, Apollo. The defendant stated to the police that he ‘‘was in some shit.'' Additional facts will be set forth as necessary in our analysis of the defendant's claims.

         I

         First, the defendant claims that the court violated his due process right to a fair and impartial trial by questioning the victim and Matos during the state's casein-chief. We disagree.

         The following two events that occurred during the trial are the subject of the present claim. The first occurred during the state's direct examination of the victim. By way of relevant background, the victim testified that she was familiar with the defendant prior to the events at issue. She identified the person that she allowed to stay in her apartment as ‘‘Ricardo Swilling, '' who had a street name of ‘‘Apollo, '' and described his arrangement with her regarding the use of the apartment. Absent objection, the following colloquy occurred:

‘‘[The Prosecutor]: . . . And is [the defendant] present in court today?
‘‘[The Victim]: Yes.
‘‘[The Prosecutor]: Can you please point to him and describe what he's wearing?
‘‘[The Victim]: He's right over here. He [has] a gray suit on.
‘‘The Court: With the tie or without the tie?
‘‘[The Victim]: I can't see over the screen. No tie.
‘‘The Court: All right. The record can reflect identification of the defendant.''

         Absent objection, at the conclusion of the state's examination of the victim, during which she described the defendant's conduct during December 24 and December 25, 2014, the following colloquy occurred:

‘‘[The Prosecutor]: And the individual who stabbed you on [December 24 and December 25] of 2014, is he present in court today?
‘‘[The Victim]: Yes, he is.
‘‘[The Prosecutor]: The person that did not allow you to leave your apartment?
‘‘[The Victim]: Yes, he is present.''

         Following an additional brief inquiry of the victim by the state, the prosecutor stated that he did not have any further questions for the victim. The following colloquy followed:

‘‘The Court: Before we take the recess . . . you said that person is in the courtroom and it may seem obvious, but is that the person you've identified before as [the defendant]?
‘‘[The Victim]: Yes.''

         Second, during the state's direct examination of Matos during its case-in-chief, Matos testified in relevant part that, on December 25, 2014, the victim appeared at his door, he provided assistance to her, and police and emergency medical personnel were summoned to the scene. Matos testified that the victim explained to him what had happened to her. There is no indication in Matos' testimony that he knew the defendant prior to the events at issue or had any interaction with him following the events at issue. He testified that, following the victim's arrival at his apartment on December 25, 2014, he went outside to see ‘‘where was the guy at.'' The following colloquy then occurred:

‘‘[The Prosecutor]: And when you were outside . . . did you see anything?
‘‘[The Witness]: No. The only time I seen him was when the officer ran behind her house; that's when he locked the door on the house.
‘‘[The Prosecutor]: Okay. When you say, ‘he, ' who do you mean?
‘‘[The Witness]: The guy. When the officer went to the house to see if he was still there, the guy ran back to the house, he locked the door.
‘‘[The Prosecutor]: So . . . you saw an individual outside of [the victim's] apartment?
‘‘[The Witness]: No. I didn't get to see him, but the officer ran and he seen him locking the door.
‘‘[The Prosecutor]: Okay. And which door did you see him lock or go into?
‘‘[The Witness]: The back door of [the victim's] house.
‘‘[The Prosecutor]: Okay. And were you able to see that individual?
‘‘[The Witness]: No. I didn't get to see him. I seen him after he got arrested and everything, then I seen him. But I never seen that guy before.
‘‘[The Prosecutor]: Now, the person that you saw go back into the house, was that the same person you saw in police custody later?
‘‘[The Witness]: Yup.
‘‘[The Prosecutor]: Okay. And is that person in ...

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