State v. James H.

150 Conn.App. 847

95 A.3d 524

STATE of Connecticut

v.JAMES H.^*

No. 35754.

Appellate Court of Connecticut.

Argued April 9, 2014.

Decided June 17, 2014.

Raymond L. Durelli, assigned counsel, for the appellant (defendant).

Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were Patricia M. Froehlich, state's attorney, and Matthew A. Crockett, assistant state's attorney, for the appellee (state).

DiPENTIMA, C.J., and LAVINE and ALVORD, Js.

ALVORD, J.

The defendant, James H., appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a–70 (a)(2); one count of sexual assault in the second degree in violation of General Statutes § 53a–71 (a)(1); two counts of sexual assault in the third degree in violation of General Statutes § 53a–72a (a)(2); and two counts of risk of injury to a child in violation of General Statutes § 53–21(a)(2). The defendant claims that the trial court (1) abused its discretion when it “failed to conduct the most elementary inquiry into an allegation of possible jury misconduct”; (2) abused its discretion in applying General Statutes § 54–86f, commonly known as the rape shield statute, when it “failed to conduct an evidentiary hearing permitting the defendant to question [one of] the complainant[s] regarding her sexual conduct;” (3) abused its discretion when it precluded the defendant “from questioning [one of] the complainant[s] regarding the contents of the Department of Children and Families [ (department) ] records previously disclosed”; (4) violated the defendant's due process right to a fair trial by “referring to the crimes with which the defendant had been charged as crimes exhibiting ‘compulsive sexual criminal behavior’ “; and (5) erred when it concluded that “the adverse spousal testimony privilege, codified at General Statutes (Rev. to 2003) § 54–84a, applied in this case” and thereafter admitted into evidence text messages sent between the defendant and his former wife, C.H.H.¹ We affirm the judgment of the trial court.

The jury reasonably could have found that, beginning at the ages of approximately five and four respectively, the defendant repeatedly sexually assaulted two of his daughters, C and J, over the course of approximately nine years. The assaults consisted of fondling, digital penetration, and oral sex. In the case of C, the assaults progressed to vaginal intercourse when she was twelve or thirteen years old. In December, 2007, the police were notified of the allegations of sexual abuse, and the victims underwent medical examinations. C tested positive for chlamydia, and the results of J's exam were indeterminate. At trial, both C and J provided detailed testimony regarding the sexual assaults. In addition, C testified that she had never engaged in sexual intercourse with anyone other than the defendant. The defendant, who elected to represent himself during the trial,² testified in his own defense and categorically denied sexually assaulting either of his daughters. He claimed that they were fabricating the allegations against him in retaliation for his attempts to discipline them. At the conclusion of trial, the jury found the defendant guilty on all counts. The court imposed a total effective sentence of sixty years incarceration, execution suspended after forty years, and twenty-five years of probation with multiple special conditions. This appeal followed.

I

We first address the defendant's claim that the court abused its discretion when it “failed to conduct the most elementary inquiry [into an allegation of possible juror misconduct] required to satisfy the mandate set forth in State v. Brown, 235 Conn. 502, 668 A.2d 1288 (1995).” The defendant specifically asserts that the court failed to “conduct a basic factual inquiry into the substantive content of possible misconduct” and to “generate a record adequate to determine whether any misconduct occurred, and if it did, whether it was prejudicial.” The defendant's claim is unpreserved, and he seeks review under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),³ based upon his fundamental right to a trial before an impartial jury. We review the defendant's claim under Golding because the record is adequate for review and the claims alleged are of constitutional magnitude.⁴ We conclude, however, that the defendant has failed to satisfy the third prong of Golding.

The following additional facts are relevant to the defendant's claim. On July 29, 2010, at the start of the fourth day of trial, the court advised the parties that it had been informed by a marshal that a judicial employee, Leah Ralls, “may have overheard the jurors say something yesterday while they were out on a break.” Accordingly, the court called Ralls to the witness stand so that she could testify as to what she heard. Ralls stated that while walking past two jurors sitting at a picnic table, she “overheard someone make mention to the cross-examination of the case” but that she “did not hear any specifics” or “any details of the conversation.” In response to the court's questions, Ralls reiterated that she “just heard a reference” to “cross-examination” but overheard no details about “cross-examination.” ⁵

When a trial court is presented with an allegation of jury misconduct in a criminal case, the court “must conduct a preliminary inquiry, on the record ... regardless of whether an inquiry is requested by counsel.” State v. Brown, supra, 235 Conn. at 526, 668 A.2d 1288. “The form and scope of such inquiry is left to the discretion of the trial court based on a consideration of multiple factors, including: (1) the private interest of the defendant; (2) a risk and value assessment of additional procedural safeguards; and (3) the government's interest.... In outlining these factors, we also [have] acknowledged, however,that [i]n the proper circumstances, the trial court may discharge its obligation simply by notifying the defendant and the state of the allegations, providing them with an adequate opportunity to respond and stating on the record its reasons for the limited form and scope of the proceedings held.” (Citation omitted; internal quotation marks omitted.) State v. Alston, 272 Conn. 432, 453, 862 A.2d 817 (2005). Accordingly, “[a]ny assessment of the form and scope of the inquiry that a trial court must undertake when it is presented with allegations of jur[or] [bias or] misconduct will necessarily be fact specific.... We [therefore] have limited our role, on appeal, to a consideration of whether the trial court's review of alleged jur[or] misconduct can fairly be characterized as an abuse of its discretion.” (Internal quotation marks omitted.) Kervick v. Silver Hill Hospital, 309 Conn. 688, 700, 72 A.3d 1044 (2013).

On the basis of the record, the trial court's actions in the present case satisfy the preliminary inquiry required by Brown. After learning of the alleged misconduct from the marshal, the court, on the record, alerted both the defendant and the state, and conducted a basic factual inquiry by calling Ralls to testify as to exactly what she overheard. Following this inquiry, the court concluded that “based upon what [Ralls] has testified to,” it did “not intend to explore this any further with the jurors” and stated that it would “remind [the jurors] again that they are not to discuss this case with anyone or amongst themselves, as [the court] ha[d] repeatedly [instructed the jurors] throughout the case, when they go out on any future breaks.” Neither the defendant nor the state objected to the court's proposed course of action, and neither the defendant nor the state requested that the court make any further inquiries. As we have recognized, the trial court is in a superior position to evaluate the credibility of allegations of jury misconduct; see State v. Owens, 100 Conn.App. 619, 628 n. 7, 918 A.2d 1041, cert. denied, 282 Conn. 927, 926 A.2d 668 (2007); therefore, it was well within the court's purview to conclude that the reference to “cross-examination” overheard by Ralls did not warrant further investigation. Moreover, “[where] the trial court was in no way responsible for the juror misconduct ... we have repeatedly held that a defendant who offers proof of juror misconduct bears the burden of proving that actual prejudice resulted from that misconduct.” (Internal quotation marks omitted.) State v. Bozelko, 119 Conn.App. 483, 494, 987 A.2d 1102, cert. denied, 295 Conn. 916, 990 A.2d 867 (2010), cert. denied, ––– U.S. ––––, 134 S.Ct. 1314, 188 L.Ed.2d 331 (2014). The defendant here has not made any such showing of prejudice. Accordingly, we conclude that the court did not abuse its discretion in its investigation of alleged juror misconduct.

II

Next, we turn to the defendant's claim that the court abused its discretion in applying § 54–86f, the rape shield statute, when it failed to conduct an evidentiary hearing permitting the defendant the opportunity to question his daughter, C, regarding her sexual conduct. He maintains that he “clearly met his preliminary burden of demonstrating [that] the evidence was sufficiently relevant under § 54–86f, where, at the pretrial hearing, both parties averred that [C] would testify that she had tested positive for chlamydia, a sexually transmitted disease, and had never engaged in vaginal penile intercourse with anyone other than the defendant, and defense counsel represented that the defendant had never test[ed] positive for chlamydia.” We disagree with the defendant's claims.

The following facts are relevant to this claim. On July 21, 2010, the trial court heard pretrial motions,⁶ including the defendant's motion for an evidentiary hearing under § 54–86f (1), (2), and (4),⁷ and the defendant's motion to admit evidence of sexual conduct. The court then determined that the defendant lacked a good faith basis to ask C whether she had...