State v. McClelland

965 A.2d 586

113 Conn.App. 142

STATE of Connecticut v. Corey Christopher McCLELLAND.

No. 28268.

Appellate Court of Connecticut.

Argued October 27, 2008.

Decided March 17, 2009.

Katherine C. Essington, special public defender, for the appellant (defendant).

Mitchell S. Brody, 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).

FLYNN, C.J., and DiPENTIMA and MIHALAKOS, Js.

DiPENTIMA, J.

On March 9, 2006, the state filed an amended long form information charging the defendant, Corey Christopher McClelland, with crimes relating to the death of his two month old son. Specifically, the state charged the defendant with one count of assault in the first degree under circumstances evincing an extreme indifference to human life in violation of General Statutes § 53a-59 (a)(3), three counts of risk of injury to a child in violation of General Statutes § 53-21(a)(1) and one count of manslaughter in the first degree in violation of General Statutes § 53a-55. Following a jury trial, the defendant was convicted of all charges with the exception of one count of risk of injury to a child. On appeal, the defendant claims that the trial court improperly (1) admitted evidence of his prior misconduct, (2) denied his motion to strike testimony concerning his prior misconduct and (3) found that he was not entitled to an in camera review of records from the department of children and families (department). We disagree, and accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In September, 2001, the defendant and his wife, M, lived with their two sons, K and the victim. At the time, K was approximately three and a half years old and the victim was approximately two months old. The victim was an overall healthy baby but cried frequently. Following M's maternity leave, she returned to work full-time while the defendant was unemployed. Four days a week both children were in the care of Paula Mayo, a day care provider. The defendant cared for the children during the remaining weekday. Although M and the defendant were happy with Mayo's care, they decided that beginning on September 17, 2001, the defendant would care for the children three days a week to save money.

The defendant was at home with the children on September 17, 2001, the first day of the new day care schedule. At approximately 10:30 a.m., the defendant called M at work and told her that the victim was crying. He stated that he was not sure what was wrong with the victim and asked if M would be coming home from work during lunch. M responded that she was not coming home from work during lunch but suggested that the victim might be hungry, as he had not eaten since 6 o'clock that morning.

The defendant called again at 1:30 p.m. and told M that the victim was not breathing. He explained that he had put the victim to bed earlier and discovered that the victim was not breathing when he went to wake him up. When M asked if the victim still was not breathing, the defendant responded that the victim was not and that the victim felt cold. M stated she would be home right away and hung up. She began to drive home but turned around and went back to work because she was unable to recall if the defendant had called 911. She called the defendant, who stated that he had not called 911, and she yelled at him to do so.

The police received a 911 call from the defendant at 1:39 p.m. The defendant calmly stated that his son was not breathing. In response to the call, Officer Louis Cinque drove to the defendant's home. The defendant answered the door while holding the victim and told Cinque that the victim was not breathing and was cold. The defendant handed the victim to Cinque, who placed the victim on the floor and observed that the victim did not have a pulse and was not breathing. The defendant stated that he had bruised the victim when he had attempted cardiopulmonary resuscitation, and Cinque noticed some bruising near the victim's rib cage, chest and abdomen. Emergency personnel arrived and took control of treating the victim. Despite their efforts, the victim remained unresponsive and exhibited no signs of life. He was taken to a hospital by ambulance where he was pronounced dead.

Later that evening, the police interviewed M at her home and the defendant at police headquarters. The next day, September 18, 2001, the police again interviewed the defendant and M separately. Earlier that day, the police had learned from the victim's autopsy that he had died from suffocation and that his bones, which had been broken and rebroken, were in various stages of healing. The police asked the defendant about those injuries, and the defendant responded that he was a big man and had been "heavy handed" with the victim. He stated that the bones could have broken when he was feeding or burping the victim. The defendant stated that neither Mayo nor M would ever hurt the victim.

Harold Wayne Carver II, a forensic pathologist and the state's chief medical examiner, testified regarding the autopsy of the victim. He stated that the cause of death was asphyxia with multiple healing blunt trauma injuries, which he explained meant that the victim's oxygen supply had been cut off by physical means and that the victim had multiple injuries to his ribs and bones in various stages of healing.¹ He testified that the victim's injuries were not consistent with resuscitation efforts but were consistent with inflicted injuries.

The state called Eli Newberger, a physician, who testified as an expert in pediatrics. Newberger opined that on the basis of his review of the medical records, photographs and interview transcripts, the victim was suffocated when an adult hand obstructed the victim's airway. He testified that the bruises around the mouth and nose occurred within close proximity to the victim's death and were not the result of resuscitation efforts.²

The police interviewed the defendant again in September, 2002, but did not seek an arrest warrant until September 5, 2003. The defendant pleaded not guilty to all charges, and a jury trial commenced on April 18, 2006. On May 2, 2006, the jury found the defendant guilty of count one, assault in the first degree under circumstances evincing an extreme indifference to human life in violation of § 53a-59 (a)(3), counts two and four, risk of injury to a child in violation of § 53-21(a)(1) and count five, manslaughter in the first degree in violation of § 53a-55.³ On July 11, 2006, the defendant was sentenced to ten years incarceration on count one. He was also sentenced to ten years incarceration on count two and ten years incarceration on count four, both to run concurrently with count one. On count five, the defendant was sentenced to twenty years incarceration, execution suspended after fifteen years, with five years probation, to run consecutively to count one. Thus, the defendant received a total effective sentence of thirty years incarceration, execution suspended after fifteen years, and five years probation with the condition of no contact with children younger than age sixteen. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly admitted evidence of his prior misconduct. Specifically, the defendant argues that the court abused its discretion by admitting evidence of an incident in which he harmed his older son, K, because the incident was not material to the issue of whether the defendant intentionally harmed the victim. The defendant further argues that the prejudicial nature of the evidence outweighed its limited probative value.

Additional facts inform our resolution of the defendant's claim. Prior to trial, the state filed a notice of intent to introduce evidence of other crimes, wrongs or acts. In response, the defendant filed a motion in limine to preclude testimony of his prior bad acts. At trial, following a voir dire examination of M and argument by counsel, the court overruled the defendant's objection to the admission of the prior uncharged misconduct evidence. The court concluded that the evidence was not unduly prejudicial and was relevant and probative as to the issue of intent. The court rejected the defendant's argument that the location of an injury to K's penis, made the evidence unduly prejudicial. The court overruled the defendant's renewed objection and allowed M to testify about the following incident. She stated that in 1998 while they were living in another state, the defendant was watching K while she was at work. K was ten months old at the time. The defendant called M at work and told her that he had injured K. He explained that he had been changing K's diaper when K began touching his penis. The defendant did not believe this was appropriate behavior and pulled K's hand away. When K reached for his penis again, the defendant swatted K's hand away, hitting K's hand as well as his penis. The defendant told M that K's penis was a little swollen, but when M returned home she discovered that K's penis and groin area were extremely swollen. She also noticed that there was a cut on K's penis and blood on the diaper. After M took K to the hospital, child protective services insisted that the defendant leave the house but eventually allowed him to return. M also testified that this incident caused her to be concerned about the defendant's interactions with the victim. During his testimony, the defendant testified that he had mistakenly believed that it was inappropriate for K to touch his penis but has since learned that it is normal for babies to touch themselves. He explained that he swatted away K's hand twice but accidentally hit his penis the second time.

The court, prior to constructing a limiting instruction regarding the prior misconduct evidence, stated: "[I]t's my...