Argued
May 16, 2019
Procedural
History
Substitute
information charging the defendant with the crimes of home
invasion, conspiracy to commit home invasion, assault in the
first degree, and conspiracy to commit assault in the first
degree, brought to the Superior Court in the judicial
district of Ansonia-Milford, geographical area number
twenty-two, and tried to the jury before Markle, J.;
verdict and judgment of guilty, from which the defendant
appealed to this court. Reversed in part;
judgment directed.
Megan
L. Wade, assigned counsel, with whom was Emily Graner Sexton,
assigned counsel, for the appellant (defendant).
Kathryn W. Bare, assistant state's attorney, with whom,
on the brief, was Kevin D. Lawlor, deputy chief state's
attorney, for the appellee (state).
Lavine, Keller and Bishop, Js.
OPINION
KELLER, J.
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
defendant's right to 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 defendant's request for an
adverse inference jury instruction. We agree with the
defendant's first claim only and, accordingly, affirm in
part and reverse in part the judgment of the trial court.
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 Hart's grandmother,
Dorothy Hart, owned the dwelling and lived in the main
residence, along with Nicole Hart's cousin, Thomas Hart,
and Nicole Hart's father. Nicole Hart's cousin,
Christopher Hart, also lived in the main residence at the
time of the incident. Nicole Hart and Joe Fox, the
defendant's 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 Hart's 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 Hart's 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, 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 residence's 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 Nicole's bedroom as well as on the mattress
in Nicole's 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 Esposito's blood
on the steering wheel, exterior driver's side door
handle, and exterior driver's 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), 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 total effective sentence of
ten years of incarceration.[1] This appeal followed. Additional
facts will be set forth as necessary.
I
The
defendant first claims that the court violated the double
jeopardy clause of the United States constitution by
sentencing him on two counts of conspiracy pursuant to a
single agreement with multiple criminal objectives.
Specifically, he argues that the court committed plain error
when it rendered judgment and sentenced him on the charges of
conspiracy to commit home invasion and conspiracy to commit
assault in the first degree because both of those counts
stemmed from a single unlawful agreement to enter the
apartment and harm Esposito. In its reply brief, the state
agrees with the defendant that there was only one conspiracy
and therefore the defendant's conviction of two counts of
conspiracy constitutes a violation of the defendant's
right against double jeopardy. We, too, agree that a double
jeopardy violation exists and that the appropriate remedy is
to reverse the judgment of conspiracy to commit assault in
the first degree and remand the case to the trial court with
direction to vacate the defendant's conviction of
conspiracy to commit assault in the first degree.
The
defendant concedes, and the state agrees, that his double
jeopardy claim was not preserved at trial and thus seeks
review pursuant to State v. Golding, 213 Conn. 233,
239-40, 567 A.2d 823 (1989), as modified by In re Yasiel
R., 317 Conn. 773, 120 A.3d 1188 (2015).[2] The first
Golding prong is met because the record is adequate
for review. There is a clear record of the allegations
underlying the defendant's convictions, as well as a
clear record of the offenses of which he was convicted.
‘‘A defendant may obtain review of a double
jeopardy claim, even if it is unpreserved, if he has received
two punishments for two crimes, which he claims were one
crime, arising from the same transaction and prosecuted at
one trial . . . .'' (Internal quotation marks
omitted.) State v. Urbanowski, 163 Conn.App. 377,
386-87, 136 A.3d 236 (2016), aff'd, 327 Conn. 169 (2017).
Additionally, ‘‘claims of double jeopardy
involving multiple punishments in the same trial present a
question of law to which we afford plenary review.''
State v. Kurzatkowski, 119 Conn.App. 556, 568, 988
A.2d 393, cert. denied, 296 Conn. 902, 991 A.2d 1104 (2010);
see also State v. Burnell, 290 Conn. 634, 642, 966
A.2d 168 (2009); State v. Culver, 97 Conn.App. 332,
336, 904 A.2d 283, cert. denied, 280 Conn. 935, 909 A.2d 961
(2006).
Further,
the second Golding prong is met because a claim of a
double jeopardy violation is of constitutional magnitude. The
double jeopardy clause of the fifth amendment to the United
States constitution provides that no person shall
‘‘be subject for the same [offense] to be twice
put in jeopardy of life or limb . . . .'' U.S.
Const., amend. V.
The
third Golding prong is also met because in the
present case, the trial court convicted and sentenced the
defendant on separate charges of conspiracy to commit home
invasion in violation of §§ 53a-48 and 53a-100aa
(a) (1), and conspiracy to commit assault in the first degree
in violation of §§ 53a-48 and 53a-59 (a) (4) that
were based on a single conspiratorial agreement.
‘‘Whether the object of a single agreement is to
commit one or many crimes, it is in either case that
agreement which constitutes the conspiracy which the statute
punishes. The one agreement cannot be taken to be several
agreements and hence several conspiracies because it
envisages the violation of several statutes rather than one.
. . . The single agreement is the prohibited conspiracy, and
however diverse its objects it violates but a single statute
. . . .'' (Citations omitted; internal quotation
marks omitted.) Braverman v. United States, 317 U.S.
49, 53-54, 63 S.Ct. 99, 87 L.Ed. 23 (1942).
‘‘[U]nder Connecticut law; see, e.g., State
v. Ortiz, 252 Conn. 533, 559, 747 A.2d 487 (2000); it is
a double jeopardy violation to impose cumulative punishments
for conspiracy offenses if they arise from a single agreement
with multiple criminal objectives.'' State v.
Wright, 320 Conn. 781, 829, 135 A.3d 1 (2016). Here,
both conspiracy convictions arose from the single agreement
reached by the defendant, Joe Fox, Labbe, and Hart to enter
the apartment and inflict serious injury to Esposito.
Therefore, the charges in question arise out of the same act
or transaction.
The
fourth Golding prong is met because the state has
failed to demonstrate that the alleged constitutional
violation was harmless beyond a reasonable doubt. To the
contrary, the state has conceded that the two conspiracy
convictions violate the double jeopardy clause of the fifth
amendment. Although the sentence imposed for conspiracy to
commit assault in the first degree did not lengthen the total
effective sentence imposed in this case; see footnote 1 of
this opinion; other adverse consequences may result from the
sentence. The Supreme Court has concluded that a cumulative
conviction has ‘‘potential adverse collateral
...