State v. Grant

83 Conn. App. 90

848 A.2d 549

STATE OF CONNECTICUT v. EARL GRANT

(AC 23215)

Court of Appeals of Connecticut.

Argued February 18, 2004.

Officially released May 25, 2004.

Lavery, C. J., and Flynn and McLachlan, JS. Richard E. Condon, Jr., assistant public defender, for the appellant (defendant).

Annemarie L. Braun, special deputy assistant state's attorney, with whom were James E. Thomas, state's attorney, and, on the brief, Robin Cutuli, assistant state's attorney, for the appellee (state).

Opinion

FLYNN, J.

The defendant, Earl Grant, appeals from the judgments of conviction, rendered after a jury trial, of "age differential" sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). He also appeals from the judgments, rendered after a trial to the court, finding him guilty of violation of probation in violation of General Statutes § 53a-32. The defendant also was charged with, but found not guilty of, the following charges: forcible sexual assault in the first degree in violation of § 53a-70 (a) (1) and attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-70 (a) (1) and 53a-49.

On appeal, the defendant claims that the trial court (1) abused its discretion by permitting the state to amend the information, after trial had commenced, to expand the time frame of the charge of "age differential" sexual assault and (2) denied the defendant his constitutional right to effective assistance of counsel by failing to undertake an adequate inquiry into the defendant's complaints regarding his counsel's representation. We conclude that although the defendant has shown that a substantial right was affected by the court's allowing the amendment to the information, he has not shown the required harm to warrant reversal of the judgments. We further conclude that the court did not have a sua sponte duty to inquire into the effectiveness of the defendant's counsel. Accordingly, we affirm the judgments of the trial court. The following facts are pertinent to our review. After arraignment, the defendant made a written motion to dismiss his first counsel. This motion was granted. The court appointed new counsel for the defendant, who represented him through the remaining proceedings. At both a pretrial hearing and during jury selection, the defendant made an oral motion to dismiss his second counsel. After inquiring into the defendant's reasons and finding them baseless, the court denied both motions.

The trial then proceeded. The child victim, who was the only person who witnessed the charged illegal activities, testified for the state but was not cross-examined by the defendant. After her testimony, the state petitioned the court to allow an amendment to the information. The last information filed prior to trial stated that the crime of age differential sexual assault under § 53a-70 (a) (2) had occurred on or about December, 2000, and the crime of forcible sexual assault under § 53a-70 (a) (1) had occurred on or about January 24, 2000 through January 31, 2001. The state requested that the information be amended to expand by eleven months the time frame of the charged age differential sexual assault from "on or about December 2000" to "diverse dates from January 24, 2000 through January 31, 2001" to conform to the victim's testimony. The new time frame coincided with the dates of the offense of forcible sexual assault already alleged in the charging document. The prosecutor stated in relevant part that "[t]he reason for the amended information is that it's amended to comply with the testimony. It was expected that the victim would recall a specific incident in December, 2000. She testified that ... no particular [date] stands out in her mind, that they all occurred over the course of time between January 24, 2000, and January 31, 2001.... December, 2000, does occur within that time frame." When arguing in favor of the amendment, the prosecutor stated in relevant part: "And as far as notice ... there is no way that [the defendant] can claim that there has not been notice of that because it's the same conduct; it's the same offense. All along, the allegation has been that it has been a history of sexual assault from the time she was eleven in the middle of the fifth grade ... until she told her mother on January 31, 2001. Certainly, there was notice that she was under the age of thirteen at that time; she said she was eleven. She did not turn thirteen until last week, and certainly there is notice that the defendant is more than two years older than she is."

The defendant objected to the amendment to the information. His counsel stated: "Your Honor, the state certainly had its witness. The state prepared the case. The state was preparing its witness as late as yesterday morning, yet we had no change in information until after the witness testified. The state had every opportunity to make any amendment to the information before the commencement of evidence. Obviously, we prepared our case based upon what the state did allege in its information, and this is a substantial departure in that.

"As Your Honor pointed out, count two requires proof of force. We were aware that for one year ... if there was proof of force, my client would be in jeopardy. Count one alleged one period of approximately one month in which my client would be in jeopardy for the alleged acts with a person under the age of thirteen years. Expanding from a one month period to a one year period is far too expansive when there has been no indication that there was difficulty communicating with the witness, that there was difficulty obtaining the witness. There have been no difficulties with the witness that are unusual in this circumstance, Your Honor. I don't believe the state has met its burden unless it could show something to that effect." The court ruled in the state's favor, stating: "[I]n my experience, the young lady turned thirteen two and one-half weeks ago and is in court to testify against [the defendant] while he sits there. And there are inherent difficulties in communicating with such witnesses and there are inherent difficulties in their testifying in court. And yesterday, the state had anticipated that [the victim's] mother would be able to be with her and, of course, you objected because her mother was a witness, rightfully so. And one has to take into consideration the age and the relationships here. I mean, this is not like putting Doctor Lee on the [witness] stand and you get up and ask him two questions and you can sit down and he'll testify for an hour. And then you get up and ask him another question and, you know, this is not a professional kind of a—kind of a witness.

"The question here is, to my mind, are any new offenses charged? No new factual offenses are charged. The same factual offenses are being gone over, just under a different additional theory.... It's sort of a different method of committing the same crime between the same defendant and victim, during the same time period that he is already on notice for on the other count, at the same house, in the same town. They are the same acts. They are only differentiated because there are different methods of viewing them within the criminal law. He was on notice of acts being committed, same date, same acts, same victim, same place.

"I think he has sufficient notice. He hasn't testified yet. If you decide that you would like, after consulting with your client, to change your decision, I will recall the complainant to the [witness] stand, and you can cross-examine her if you so choose. But on the basis of this, I'm going to allow the substituted information. You may have an exception." The defendant chose not to cross-examine the victim. Later, during a read-back of the victim's testimony to the jury, the defendant made an outburst and told the court that he had asked his counsel to cross-examine the victim. The court stated that it would look into the matter at a later time. Neither the defendant nor his counsel addressed this issue to the court again.

At the sentencing hearing, the court was informed that the defendant had filed a grievance against his counsel and that he believed that this action effectively dismissed his counsel. Defense counsel stated that he had explained to his client that he still represented him. No objection to defense counsel's continued representation was made at this time, and no motion to dismiss or withdraw was filed with the court. During the hearing, the court gave the defendant one last chance to object to his counsel, stating: "Now, I know you had some feelings in that area. If you wish to express them, now is the time because this is the last ... time I will be handling this." The defendant remained silent on the issue of his counsel's representation.

I

We first address the defendant's claim that the court improperly allowed the state to amend the information, after trial had commenced, to expand the time frame of the charged age differential sexual assault in violation of Practice Book § 36-18.¹ "On appeal, our review [standard] of the court's decision to permit an amendment to the information is one of abuse of discretion." State v. Caracoglia, 78 Conn. App. 98, 101, 826 A.2d 192, cert. denied, 266 Conn. 903, 832 A.2d 65 (2003).

"Before a trial begins, the state has broad authority to amend an information pursuant to Practice Book § 36-17. Once the trial has started, however, the prosecutor is constrained by the provisions of Practice Book § 36-18." State v. Wilson F 77 Conn. App. 405, 411, 823 A.2d 406, cert. denied, 265 Conn. 905, 831 A.2d 254 (2003). Practice Book § 36-18 provides in relevant part: "After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information at any time before a...