State v. Lafleur

156 Conn.App. 289

113 A.3d 472

STATE of Connecticut

v.Steeve LaFLEUR.

No. 35418.

Appellate Court of Connecticut.

Argued Jan. 14, 2015.

Decided April 7, 2015.

Richard E. Condon, Jr., senior assistant public defender, for the appellant (defendant).

Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and John Waddock, supervisory assistant state's attorney, for the appellee (state).

KELLER, MULLINS and PELLEGRINO, Js.

Opinion

KELLER, J.

The defendant, Steeve LaFleur, who was convicted of the crimes of assault in the third degree and two counts of violating a protective order, appeals from the sentence imposed by the trial court in a resentencing proceeding following his direct appeal. The defendant claims that the trial court (1) improperly relied on the aggregate package theory, (2) imposed a sentence that was motivated by vindictiveness against him for having challenged successfully a portion of the judgment of conviction, and (3) violated his right against double jeopardy. We affirm the judgment of the trial court.

The following procedural history is relevant to the claims raised in the present appeal. “A jury found the defendant ... guilty on various charges in two informations, both involving the physical assault of a female victim, which had been joined for trial pursuant to the state's motion. In the first case, regarding the victim, Larrisha Washington (Washington case), the defendant was found guilty of assault in the third degree in violation of General Statutes § 53a–61 (a), a class A misdemeanor, and two separate counts of violating a protective order in violation of General Statutes § 53a–223, a class D felony, and was found not guilty of one additional count of violating a protective order. In the second case, regarding the victim, Diana Hazard (Hazard case), the defendant was found guilty of assault in the first degree in violation of General Statutes § 53a–59 (a)(1), a class B felony, and violation of the conditions of release in the first degree in violation of General Statutes § 53a–222, a class D felony. The defendant thereafter pleaded guilty in the second part of the information in the Hazard case to a charge of being a persistent dangerous felony offender pursuant to General Statutes (Rev. to 2007) § 53a–40. After the trial court rendered judgment in accordance with the jury's verdict and the subsequent plea, the defendant appealed, claiming that he is entitled to a judgment of acquittal on the charge of assault in the first degree in the Hazard case and a new trial in the Washington case....

“The jury reasonably could have found the following facts regarding the Hazard case. Hazard met the defendant in 2007 and started dating him in June, 2008. She lived with the defendant at his third floor apartment on West Division Street in New Haven for approximately three weeks in the summer of 2008. Thereafter, she moved to a friend's apartment that was located a couple of blocks from the defendant's apartment. On August 21, 2008, between midnight and 1 a.m., Hazard was walking home from a deli located at the corner of Dixwell Avenue and Bassett Street in New Haven. While walking on Dixwell Avenue, she came upon the defendant, who asked her with a raised and stern voice if she was ‘going to stop dealing with him, was that it?’ When Hazard replied ‘yes,’ the defendant, using his fists, began to assault Hazard. He first hit her very hard on the right side of her nose. Hazard heard her nose crack and felt pressure throughout her face. The defendant thereafter hit Hazard many times in the face, until she fell to the ground. While on the ground, the defendant kicked her in the abdomen. After the defendant left, Hazard remained on the ground for approximately five minutes and then went home to go to sleep. The next day, Hazard went to a police station to report the assault and then went to the emergency room, where she was treated for a number of facial fractures, including fractures to both bones in her nose, multiple fractures of her right eye socket and sinus, and substantial swelling and bruising above and below her right eye and throughout the nasal bridge. She received inpatient treatment for five days at Yale New–Haven Hospital and then stayed at a home in Greenwich for her safety.

“The jury reasonably could have found the following facts regarding the Washington case. Washington and the defendant had been involved in a five year relationship and had one child. Shortly before July 24, 2008, Washington learned that the defendant had impregnated another woman. Washington telephoned the defendant at one point to confront him and threaten to take their child to Virginia. On July 24, at approximately 6:30 p.m., the defendant telephoned Washington and asked her to bring their daughter to see him at his apartment. When Washington and her daughter arrived in the vicinity of the defendant's apartment, Washington was admittedly angry, and she and the defendant exchanged words on Dixwell Avenue. The defendant punched Washington in the right side of her face. Subsequently, Washington went to the police station and reported that the defendant had punched her in the right side of her face; a police officer noticed a bump on the right side of her face.” (Footnotes omitted.) State v. LaFleur, 307 Conn. 115, 118–22, 51 A.3d 1048 (2012). At the conclusion of the consolidated trial encompassing the charges in the Washington and Hazard cases, the trial court, Holden, J., sentenced the defendant to a total effective sentence of twenty-five years incarceration, execution suspended after eighteen years, followed by five years of probation. Id., at 119 n. 5, 51 A.3d 1048.

In his direct appeal,¹ the defendant claimed (1) that his conviction of assault in the first degree in the Hazard case should be reversed on the ground of instructional error, (2) that he was entitled to a judgment of acquittal with regard to the assault in the first degree charge in the Hazard case, (3) the joinder of the Hazard and Washington cases violated his due process right to a fair trial, and (4) the court improperly admitted Hazard's entire statement as a prior consistent statement. Id., at 119–20, 51 A.3d 1048.

Our Supreme Court agreed with the defendant's first claim, that the trial court improperly had instructed the jury in the Hazard case that a fist can be a dangerous instrument within the meaning of § 53a–59 (a)(1). Id., at 140, 51 A.3d 1048. Consistent with its resolution of the first claim, our Supreme Court agreed with the defendant's second claim, that the evidence did not support his conviction of assault in the first degree in the Hazard case. By way of a remedy of these claims related to the Hazard case, our Supreme Court reversed the defendant's conviction of assault in the first degree, his conviction for violating the conditions of his release, and his conviction for being a persistent dangerous felony offender. Id., at 153–54, 51 A.3d 1048. The court remanded the Hazard case to the trial court with direction to render judgment of acquittal on these three charges. Id., at 154, 51 A.3d 1048. Our Supreme Court rejected the defendant's third claim, which was limited to the second factor of the joinder test set forth in State v. Boscarino, 204 Conn. 714, 722–24, 529 A.2d 1260 (1987),² that the trial court's decision to join the Hazard and Washington cases was improper. State v. LaFleur, supra, 307 Conn. at 120, 154, 156, 51 A.3d 1048. Having rejected the defendant's joinder claim, the only claim involving the convictions in the Washington case, our Supreme Court affirmed the judgment of the trial court with respect to the Washington case. Id., at 163, 51 A.3d 1048. In light of its resolution of the first three claims raised on appeal, the court deemed it unnecessary to reach the merits of the defendant's fourth claim, which was related to the court's admission of evidence that was germane to the charges in the Hazard case. Id., at 120, 51 A.3d 1048.

With regard to the proceedings to be undertaken by the trial court on remand, our Supreme Court stated: “Although we have concluded that the judgment in the Washington case should be affirmed, our reversal of the defendant's convictions in the Hazard case affects the sentencing in the Washington case. In the Washington case, the defendant was sentenced to one year on the assault in the third degree charge (count one) and five years each on two separate counts of violating a protective order (counts two and four). Count two was to run concurrently with count one. Count four was to run concurrently with counts one and two. All of the sentences were to run concurrently with the twenty-five year sentence, suspended after eighteen years, received in connection with the persistent dangerous felony offender conviction. In view of the fact that we are reversing the assault in the first degree conviction and, consequently, the convictions of being a persistent dangerous felony offender and violating conditions of release in the first degree, and the fact that we are directing the trial court to render judgment of acquittal on those charges, we must remand convictions reached in connection with the Washington case for resentencing. This court has ‘endorsed the Appellate Court's adoption of the “aggregate package” theory of sentencing. See State v. Raucci, 21 Conn.App. 557, 563, 575 A.2d 234, cert. denied, 215 Conn. 817, 576 A.2d 546 (1990). Pursuant to that theory, we must vacate a sentence in its entirety when we invalidate any part of the total sentence. On remand, the resentencing court may reconstruct the sentencing package or, alternatively, leave the sentence for the remaining valid conviction or convictions intact.... Thus, we must remand this case for resentencing on the sole count[s] on which the defendant stands convicted.’ ... State v. Miranda, 274 Conn. 727, 735 n. 5, 878 A.2d 1118 (2005).” State v. LaFleur, supra, 307 Conn. at...