State v. Berube

256 Conn. 742

775 A.2d 966

STATE OF CONNECTICUT v. DAVEY L. BERUBE, SR.

(SC 16425)

Supreme Court of Connecticut.

Argued March 22, 2001.

Officially released July 17, 2001.

Sullivan, C. J., and Norcott, Katz, Palmer and Zarella, Js. Pamala J. Favreau, for the appellant (defendant).

Bruce Lockwood, assistant state's attorney, with whom, on the brief, were Mark S. Solak, state's attorney, Vincent Dooley, senior assistant state's attorney, and Robin S. Schwartz, former special deputy assistant state's attorney, for the appellee (state).

Opinion

NORCOTT, J.

The defendant, Davey L. Berube, Sr., appeals¹ from the judgment of conviction, following a jury trial, of charges stemming from two separate informations. In the first case, the defendant was convicted of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1),² and risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21.³ In the second case, the defendant was convicted of assault in the third degree in violation of General Statutes § 53a-61 (a) (1),⁴ and risk of injury to a child in violation of § 53-21. On appeal, the defendant claims that the trial court improperly: (1) failed to sever the cases for trial; (2) permitted the state to impeach the defendant with evidence of his postarrest silence; (3) precluded the defendant from eliciting testimony related to the decision of the department of children and families (department) to place the defendant's biological child in his custody; and (4) denied the defendant's motion for a continuance and failed to recognize his right of allocution prior to imposing the sentences at the sentencing hearing. We affirm the judgment of the trial court.

The following facts are relevant to our disposition of this appeal. This appeal involves two cases that were tried together. The first case involves the defendant's alleged sexual assault of his stepdaughter, Jane Doe,⁵ beginning in May or June, 1997. Jane, then thirteen years old, eventually complained to her mother, T.B., that the defendant was touching her in an inappropriate manner. Pursuant to Jane's allegations, on September 7, 1997, T.B. brought her to state police Troop D barracks to file a complaint. Trooper Thomas Clark took written statements from both Jane and T.B., and, in accordance with procedure, notified the department. Thereafter, T.B. obtained a restraining order to remove the defendant from the family home. The department conducted its investigation simultaneously with the state police. Kathleen Payne, a department investigator, met with both Jane and the defendant. Despite Jane's continued allegations, the defendant denied any wrongdoing and claimed that he accidently could have touched Jane's breasts while wrestling with her. Payne concluded that allegations of sexual abuse had been substantiated and sent a letter to T.B. reiterating the need to protect her children. The department, thereafter, closed its file in November, 1997.

The second case involves the defendant's alleged physical assault of his stepson, John Doe, on or about September 4, 1997. A few days after the incident, John, then eleven years old, complained of back pain to his grandmother. Upon lifting his shirt, John's grandmother noticed bruises and notified John's mother, T.B. After observing the bruises on John's back, T.B. took him to state police Troop D barracks to file a complaint on September 7, 1997. Clark observed the bruises and had photographs taken to document John's condition. Clark took written statements from both John and T.B., and, subsequently, notified the department of the incident. On behalf of the department, Payne met with both John and the defendant. The defendant informed Payne that he went to spank John on his buttocks, but that John moved causing the defendant to miss and strike John in the back. Payne concluded that the allegations of physical abuse had been substantiated and sent a letter to T.B. reiterating the need to protect her children. The department, thereafter, closed its file in November, 1997.

On December 2, 1997, the defendant was arrested on two separate warrants related to these allegations. The state filed two substitute informations on May 19, 1999, and the defendant, subsequently, was tried on both sets of charges before a single jury. On June 25, 1999, the jury returned a verdict of guilty on each count charged within the informations. On September 21, 1999, the court, Potter, J., imposed a total effective sentence of five years imprisonment, execution suspended after two years, and five years probation. This appeal followed.

I

The defendant's first claim is that the trial court improperly failed to sever the two cases for trial. Specifically, the defendant claims that joinder of the two cases prejudiced him because: (1) the jury likely relied on evidence presented in one case to convict him in the other; (2) the totality of the accumulated evidence at trial "demonized" him; and (3) he was prevented from exercising his fifth amendment right not to testify because he wanted to testify in one case, but not in the other. Because the defendant failed to raise the severance issue at trial, we are not bound to review this claim on appeal. See State v. King, 235 Conn. 402, 405 n.3, 665 A.2d 897 (1995) (failure to raise issue of severance at trial renders claim unreviewable); State v. Groomes, 232 Conn. 455, 465, 656 A.2d 646 (1995) (same).

In declining to review this claim, "we reassert the fundamental principle that, if the defendant deems an action of the trial court necessary to the fairness of his trial, he has a responsibility to present such a claim clearly to the trial court so that the trial court may consider it and, if it is meritorious, take appropriate action. That is the basis for the requirement that ordinarily a defendant must raise in the trial court the issues that he intends to raise on appeal." State v. Groomes, supra, 232 Conn. 466.

The defendant's silence, when faced with the prospect of a joint trial, may have been for tactical or other valid reasons. See State v. Walton, 227 Conn. 32, 55 n.20, 630 A.2d 990 (1993). For example, a joint trial may have provided the defendant with the opportunity to demonstrate an attempt by his former wife, T.B., to turn both children against the defendant by manipulating them into believing that innocent acts were actually inappropriate.⁶ See, e.g., United States v. Romero, 54 F.3d 56, 59-60 (2d Cir. 1995), cert. denied, 517 U.S. 1149, 116 S. Ct. 1449, 134 L. Ed. 2d 568 (1996) (counsel did not pursue severance for tactical reasons); United States v. Jackson, 33 F.3d 866, 875-76 (7th Cir. 1994), cert. denied, 514 U.S. 1005, 115 S. Ct. 1316, 131 L. Ed. 2d 197 (1995) (court presumed that failure to seek severance was tactical decision); United States v. Cyprian, 23 F.3d 1189, 1194 (7th Cir.), cert. denied, 513 U.S. 879, 115 S. Ct. 211, 130 L. Ed. 2d 139 (1994) (counsel did not pursue severance for tactical reasons). Thus, to consider the defendant's claim on appeal would be to "impose an untenable burden on the trial court and would amount to appeal by ambuscade." State v. Groomes, supra, 232 Conn. 466. We decline to do so.

Having failed to raise the issue of severance at trial, and because the record contains no indication that such failure was not based on tactical reasons, the defendant waived any constitutional claims he may have had with respect to the joinder of the cases. See State v. Anderson, 209 Conn. 622, 633, 553 A.2d 589 (1989) ("defendant cannot now claim `foul' because of the admission of evidence which he allowed in for tactical purposes"); State v. Harman, 198 Conn. 124, 136, 502 A.2d 381 (1985) ("[h]aving expressly consented, for tactical reasons, to allow the state's psychiatrist to reveal information he received during the examination, the defendant waived any constitutional claims he may have had with respect to this testimony and may not now challenge its admissibility on appeal"); State v. Moye, 177 Conn. 487, 499, 418 A.2d 870 (1979) ("defendant's tactical use of [testimony] amounted to a waiver of any constitutional objection"); State v. Green, 62 Conn. App. 217, 231, 774 A.2d 157 (2001) (claim that constitutional right to confrontation was violated does not satisfy second prong of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 [1989], because defendant made tactical decision not to cross-examine witness on particular issue); State v. Fisher, 52 Conn. App. 825, 830, 729 A.2d 229, cert. denied, 249 Conn. 912, 733 A.2d 232 (1999) ("defendant cannot now complain that he was deprived of his constitutional rights because his trial tactic failed").⁷

II

The defendant's second claim is that the trial court violated his state and federal constitutional rights by improperly permitting the state to impeach him with evidence of his postarrest silence and request for an attorney. See Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976); State v. Daugaard, 231 Conn. 195, 210-11, 647 A.2d 342 (1994), cert. denied, 513 U.S. 1099, 115 S. Ct. 770, 130 L. Ed. 2d 666 (1995). This contention concerns two inquiries by the state during its cross-examination of the defendant regarding his claimed cooperation with the state police and the department. The defendant failed to raise this issue at trial and now seeks to prevail on this unpreserved claim under State v. Golding, supra, 213 Conn. 239-40. We conclude that the record is insufficient for review with respect to the claim involving the police, and we reject the defendant's argument with respect to the claim involving the department.

A

During the state's cross-examination of the defendant, he volunteered that he had attempted to speak with the police, but that they had refused to take a statement from him without his attorney. Upon further inquiry, the defendant explained that he had informed his attorney of his offer to speak with the...