State v. Ralph B.

162 Conn.App. 583

131 A.3d 1253

STATE of Connecticut

v.RALPH B.^*

No. 35654.

Appellate Court of Connecticut.

Argued Sept. 21, 2015.

Decided Jan. 26, 2016.

Jeffrey C. Kestenband, Middletown, for the appellant (defendant).

Brett R. Aiello, special deputy assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Nicole I. Christie, assistant state's attorney, for the appellee (state).

SHELDON, KELLER and SCHALLER, Js.

SCHALLER, J.

The defendant, Ralph B., appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit assault in the first degree in violation of General Statutes §§ 53a–49 and 53a–59 (a)(1), unlawful restraint in the first degree in violation of General Statutes § 53a–95 (a), strangulation in the second degree in violation of General Statutes § 53a–64bb (a), and risk of injury to a child in violation of General Statutes § 53–21(a)(1). On appeal, the defendant claims: (1) his due process right to a fair trial was violated because he was not permitted to attend three pretrial hearings, which proceeded in his absence over his objection; (2) the trial court improperly permitted the state to introduce extrinsic evidence on a collateral matter; (3) the conviction of attempt to commit assault in the first degree and unlawful restraint in the first degree should be vacated because § 53a–64bb (b) does not permit someone who is convicted of strangulation in the second degree also to be convicted of assault and unlawful restraint; and (4) the trial court improperly denied him his right to allocution and to present information in mitigation of sentencing. We agree with the defendant regarding his first claim, and, therefore, reverse the judgment of the trial court.

The jury reasonably could have found the following facts. On January 4, 2012, the defendant was married to L.B. They have one child, I.B., who was three years old on January 4, 2012. On that date, following an argument regarding a possible divorce, the defendant left the home in anger and L.B. put I.B. to bed. She then went to sleep in I.B.'s room, in a bed across from his bed. The defendant returned home and entered I.B.'s room. The defendant turned on a closet light and woke L.B. The defendant then attempted to strangle L.B. with a cord, in the process waking up I.B. L.B. attempted to call 911, but the defendant threw her cell phone into the hallway. They continued to struggle and L.B. pleaded with the defendant to stop, asking him why he was upset. He responded that he had sent her several text messages to which she had not replied. The defendant permitted her to get her cell phone but, as she attempted to show him that she had not received any messages, he came at her with the cord a second time. She dialed 911 and dropped the cell phone on the floor. The defendant continued to choke her; she fought back and, after hearing I.B. call out to her, was able to wrest the cord from the defendant. She took the cord and went to check on I.B. The defendant then again attempted to strangle her with his hands. L.B. escaped and attempted to calm the defendant. When she heard cars outside, she ran downstairs with the cord in her hands. Once she was outside, she saw the police. She threw the cord to the first police officer she saw and told the police that the defendant had tried to kill her with it. The police arrested the defendant, took a statement from L.B., and photographed her neck and face. She then went to a hospital. The defendant was arrested and charged with strangulation in the first degree, unlawful restraint in the first degree, attempt to commit assault in the first degree, interfering with an emergency call, strangulation in the second degree, and risk of injury to a child.

Following the trial, the jury found the defendant guilty of attempt to commit assault in the first degree, unlawful restraint in the first degree, strangulation in the second degree, and risk of injury to a child. It acquitted him of strangulation in the first degree and interfering with an emergency call. The court, Kwak, J., sentenced the defendant to twenty years incarceration followed by five years of special parole. This appeal followed.

The defendant claims that his due process rights were violated when the court did not permit him to attend three hearings on pretrial motions. The defendant argues that these hearings were critical stages of the proceedings and that he was entitled to be present. He argues that his presence bore a reasonably substantial relationship to the fullness of his opportunity to defend against the charges and that the hearings were not fair and just in his absence. The state responds that the defendant did not make an adequate showing that his absence from the hearings adversely affected his opportunity to defend against the charges. We first set forth our standard of review. "Whether the defendant's constitutional rights were violated by his exclusion from [a] hearing presents a question of law and, accordingly, we exercise plenary review." State v. Dixon, 318 Conn. 495, 511, 122 A.3d 542 (2015).

The following additional facts are necessary for our consideration of the defendant's claims. On January 4, 2013, the court, Solomon, J., held a hearing regarding the conditions of the defendant's bond. The defendant was not incarcerated; he was on house arrest with a global positioning system (GPS) monitor, which a probation officer monitored. At the conclusion of the hearing before Judge Solomon, the defendant requested a hearing on his motions regarding a bill of particulars, a request for essential facts, and a motion to dismiss regarding discovery issues. The court confirmed that, as these were discovery issues, they would take only a few minutes. The court then scheduled a hearing for January 7, 2013, before the trial court, Kwak, J. The defendant's attorney asked if the defendant could attend. The court ruled that the defendant did not need to be present, as the motions involved only legal issues pertaining to discovery, and denied the request.¹

On January 7, 2013, the defendant's attorney filed a "motion for client to be present in court for all hearings and proceedings in connection with this case." The defendant asserted that there were thirteen outstanding motions, including, in addition to those discussed before Judge Solomon, a motion in limine to exclude prior convictions, a motion to require notice of uncharged misconduct evidence, and a motion for in camera review of records of the complaining witness, L.B.² The motion for the defendant to be present cited the applicable law, and claimed that some of the motions could require the defendant's testimony and the testimony of the defendant's expert witness. The defendant's attorney further claimed that communication between a client and counsel during the hearing was key to effective assistance of counsel and a working attorney-client relationship. Finally, the defendant's attorney asserted that the interests of transparency in the judicial process required the defendant to be present in the courtroom when thirteen substantive motions were decided.

In the hearing on January 7, 2013, before Judge Kwak, the defendant's attorney renewed the motion to permit the defendant to be present. The court asked whether Judge Solomon initially had denied the request. The defendant's attorney answered that Judge Solomon had denied the request, but without the benefit of the legal authority that the defendant provided in the memorandum.³ The defendant's attorney emphasized that the pending motions were substantive and could require the defendant to testify. The state responded that it could not disagree with the defendant's presence at the critical portions of some of the motions, and suggested that the parties select which motions they could address that day and which would require a later hearing. The court ruled that it would need to look at the file before deciding whether to permit the defendant to be present, but that there were some matters it could consider without the defendant being present. Following discussion of the status of various discovery requests, the court granted the defendant's motion for a bill of particulars, ordered the state to provide a witness list, denied the defendant's motion to dismiss, denied the defendant's motion for a continuance, declined to grant the defendant's motion to require notice of any uncharged misconduct evidence because the state voluntarily agreed to provide notice, and denied the defendant's request to make an opening statement.

The defendant's attorney then argued that the motion for an in camera review of records of L.B. would require the defendant's presence and possible testimony. The defendant's attorney asserted that there were other motions requiring the defendant's presence. The state also requested that the defendant's attorney confirm that he would not be relying on an alibi defense and did not intend to rely upon the defenses of mental disease or defect or extreme emotional disturbance. The court scheduled a subsequent hearing for January 15, 2013.

On January 9, 2013, the trial court denied the defendant's January 6, 2013 motion to be present. The court did not provide any reasons for its ruling at that time.⁴

On January 15, 2013, the court held the scheduled hearing in the absence of the defendant.⁵ The court first addressed the defendant's motion for an in camera review of the records of L.B. In support of this motion, the defendant's attorney elicited the testimony of Erin Nicole Haataja, a longtime acquaintance of the defendant and L.B. Haataja testified that in the past, L.B. had claimed that the defendant had scratched her with a screwdriver when in fact Haataja had seen L.B. scratching herself. Haataja also testified that, on one occasion, L.B. had dropped a cooler onto herself, then claimed the defendant had pushed the cooler onto her. The defendant's attorney asserted that...