Argued
May 16, 2019
Superior
Court in the judicial district of Ansonia-Milford, tried to
the jury before Markle, J.
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Megan
L. Wade, assigned counsel, with whom was Emily Graner Sexton,
assigned counsel, for the appellant (defendant).
Kathryn
W. Bare, assistant states attorney, with whom, on the brief,
was Kevin D. Lawlor, deputy chief states attorney, for the
appellee (state).
Lavine,
Keller and Bishop, Js.
OPINION
KELLER,
J.
[192
Conn.App. 223] The defendant, Michael Fox, appeals from the
judgment of conviction, rendered after a jury trial, of home
invasion in violation of General Statutes § 53a-100aa (a)
(1), conspiracy to commit home invasion in violation of
General Statutes § § 53a-48 and 53a-100aa (a) (1), assault in
the first degree in violation of General Statutes § 53a-59
(a) (4), and conspiracy to commit assault in the first degree
in violation of General Statutes § § 53a-48 and 53a-59 (a)
(4). On appeal, the defendant claims that (1) the trial court
violated the double jeopardy clause of the United States
constitution by sentencing the defendant on two counts of
conspiracy on the basis of a single agreement with multiple
criminal objectives, (2) the state violated the defendants
right to
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due process under the Connecticut constitution as a result of
the destruction or loss of photographs depicting the crime
scene, and (3) the trial court erred in denying the
defendants request for an adverse inference jury
instruction. We agree with the defendants first claim only
and, accordingly, affirm in part and reverse in part the
judgment of the trial court.
[192
Conn.App. 224] The jury reasonably could have found the
following facts. Nicole Hart resided in Milford in an in-law
apartment (apartment) connected to a main residence. The
apartment consists of a bedroom, bathroom, kitchen, and
living room. An interior door separates the apartment from
the main residence. At the time of the incident in question,
Nicole Harts grandmother, Dorothy Hart, owned the dwelling
and lived in the main residence, along with Nicole Harts
cousin, Thomas Hart, and Nicole Harts father. Nicole Harts
cousin, Christopher Hart, also lived in the main residence at
the time of the incident. Nicole Hart and Joe Fox, the
defendants brother, were involved romantically,
intermittently from 2007 through October, 2014, and they
share a child together. Joe Fox lived with Nicole Hart in the
apartment for several weeks, from late September through
mid-October, 2014, until the two ended their relationship in
the second week of October, 2014.
On
October 26, 2014, Thomas Hart texted Joe Fox, alerting him
that Nicole Harts new boyfriend, Anthony Esposito, was at
the apartment. Later in the day, Thomas Hart drove to a park
near the dwelling where he met Joe Fox, who was driving a
vehicle with two passengers: the defendant and Zachary Labbe.
Joe Fox then followed Thomas Hart to the dwelling where
Thomas Hart, Joe Fox, the defendant, and Labbe exited their
vehicles. At approximately 11:30 p.m., the four men entered
the main residence through the front door on the left-hand
side of the dwelling and proceeded into the apartment. The
defendant, Joe Fox, and Labbe then entered Nicole Harts
bedroom where she was in bed asleep with Esposito. Joe Fox
dragged Nicole Hart, by her neck, from the bedroom into the
adjoining kitchen where he directed expletives at her and
strangled her, causing her to lose control of her bladder.
From the kitchen, Nicole Hart could hear crashing noises
coming from the bedroom where the defendant, [192 Conn.App.
225] Labbe, and Esposito were located. Joe Fox returned to
the bedroom where he, the defendant, and Labbe punched and
kicked Esposito. Nicole Hart went to the main residence to
call 911 from the residences landline telephone. Meanwhile,
Joe Fox, the defendant, Thomas Hart, and Labbe exited the
apartment and left in the same cars in which they had
arrived.
Police
arrived at the residence at approximately 11:45 p.m. where
they found Esposito, who was bleeding and bruised about his
head and face. Police also observed blood on the floor of the
entry way of Nicoles bedroom as well as on the mattress in
Nicoles bedroom. An ambulance took Esposito to the hospital
where he was treated for orbital wall fractures of both eyes,
a nasal bone fracture, a closed head injury, and lacerations
to the inside of his mouth.
Later
that same night, police located the vehicle that Joe Fox had
used to transport himself, the defendant, and Labbe to and
from the dwelling. Law enforcement found Espositos blood on
the steering wheel, exterior drivers side door handle, and
exterior drivers side door of the vehicle in question.
Lieutenant Richard Anderson, of the Milford Police
Department, obtained an arrest warrant for the defendant. The
defendant was arrested on October 31, 2014, and subsequently
charged with home invasion in violation of § 53a-100aa (a)
(1),
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conspiracy to commit home invasion in violation of § § 53a-48
and 53a-100aa (a) (1), assault in the first degree as to
Esposito in violation of § 53a-59 (a) (4), and conspiracy to
commit assault in the first degree as to Esposito in
violation of § § 53a-48 and 53a-59 (a) (4).
Following
a jury trial, the defendant was found guilty of home
invasion, conspiracy to commit home invasion, assault in the
first degree, and conspiracy to commit assault in the first
degree. The defendant received a [192 Conn.App. 226] total
effective sentence of ten years of
...