State v. Samuel U.

348 Conn. 304

303 A.3d 1175

STATE of Connecticut v. SAMUEL U.^*

SC 20740

Supreme Court of Connecticut.

Argued September 11, 2023

Officially Released November 28, 2023

Dina S. Fisher, assigned counsel, for the appellant (defendant).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Sharmese L. Walcott, state's attorney, and Anthony Bochicchio, supervisory assistant state's attorney, for the appellee (state).

Robinson, C. J., and McDonald, D'Auria, Mullins, Ecker, Alexander and Cradle, Js.

D'AURIA, J.

In this direct appeal, we are again presented with a challenge to a trial court's admission of sexual misconduct evidence beyond that which the state has charged in a particular prosecution. The defendant, Samuel U., appeals from his conviction of one count of 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). Specifically, he claims that the state infringed on his due process rights by providing a notice of its intent to offer evidence of his other sexual misconduct that was inadequate and did not conform to the evidence elicited at trial. The defendant also contends that the trial court abused its discretion under § 4-5 (b) of the Connecticut Code of Evidence by admitting the testimony of his daughter, S, concerning sexual misconduct he engaged in with her fourteen years before the charged conduct in the present case. We disagree with both of the defendant's claims and affirm the trial court's judgment.

The following facts and procedural history relate to the defendant's claims on appeal. After a bench trial, the trial court found that, from 2007 through 2010, the defendant had on numerous occasions engaged in sexual misconduct with the victim, T. During this time frame, T was between the ages of seven and ten, and the defendant was in a long-term relationship with T's grandmother, M. T would see the defendant when visiting M, as the defendant resided with M. The defendant's sexual misconduct with T occurred either in his car or in M's home when M was not present.

The defendant's sexual misconduct included performing cunnilingus on T, rubbing her vagina, kissing her breasts, and forcing her to touch his penis. In 2016, T confided in her school therapist about these episodes of the defendant's sexual misconduct. As a mandated reporter, her therapist notified the police about T's disclosures.

Pursuant to § 4-5 (b) of the Connecticut Code of Evidence, and more than eight months before trial, the state provided the defendant with a "Notice of Intent to Present Uncharged Misconduct," stating that it would "present evidence of other sexual misconduct to prove propensity ...." The notice indicated that the state planned to present evidence of four episodes of the defendant's other sexual misconduct with unspecified victims. The notice included the approximate dates of the misconduct, the nature of the misconduct, and the respective dates of the defendant's resulting convictions for each episode of misconduct. Most relevant to the present appeal is the third entry on that notice, which provided: "The state intends to present evidence that, on August 20, 1993, the defendant digitally penetrated and had vaginal and anal intercourse with the victim. The victim was a [four] year old female. The defendant was convicted, on June 17, 1994, of sexual assault in the first degree and risk of injury in violation of [§§] 53a-70 and 53-21 ...." The notice did not identify the victim of those crimes, but it did contain the docket number of the criminal case. ¹ The defendant did not contest the adequacy of this notice before trial. ²

At trial, the state offered the testimony of S as propensity evidence under § 4-5 (b) of the Connecticut Code of Evidence. ³ S testified that the defendant's sexual misconduct with her had taken place in 1993, when she was four years old. The defendant's conduct included rubbing S's genitals, as well as rubbing his genitals against hers. S recounted that the defendant's misconduct ceased that same year, after she told a family member what she had endured.

Just as he had not before trial, when the state sought to admit S's testimony at trial, the defendant did not raise any claim concerning the adequacy of the notice of other sexual misconduct. Defense counsel did argue, however, that S's testimony was inadmissible because (1) fourteen years had elapsed between the other sexual misconduct involving S and T's allegations, rendering S's experiences too remote in time to be relevant, and (2) S and T were not similar victims in that S is the defendant's blood relative and T is not, and T was "much older" than S (seven to ten years old as opposed to four years old) when the defendant's sexual misconduct with each of them occurred.

Given that the defendant had elected a bench trial, the trial court, before hearing and ruling on the admissibility of S's testimony, offered the defendant the opportunity to have another judge listen to her testimony and rule on its admissibility. Defense counsel responded that there was no need for the court to make these arrangements because the defendant did not want S to have to testify twice, and he was "confident, if the court does exclude [the testimony], the court won't consider it ... in rendering a verdict."

After hearing the testimony and the parties’ arguments, the trial court overruled defense counsel's objection, finding that the sexual misconduct S had described was sufficiently proximate in time to T's allegations, given that the defendant had been incarcerated for a significant portion of the fourteen years in question. The trial court also reasoned that the locations and manner of the sexual misconduct S and T described were sufficiently similar, given that both recalled the defendant rubbing their genitals at his home. Both also had a familial type relationship to the defendant and were similar in age at the time of the sexual misconduct.

The trial court found the defendant guilty of one count of sexual assault in the first degree and two counts of risk of injury to a child and sentenced him to a term of imprisonment of twelve years with a mandatory minimum of five years to serve followed by five years of special parole. The defendant appealed directly to this court pursuant to General Statutes § 51-199 (b) (3).

I

We begin with the defendant's claim that the trial court violated his due process rights by admitting S's testimony without adequate notice. The defendant concedes that he did not raise this claim in the trial court. He therefore seeks review under State v. Golding , 213 Conn. 233, 567 A.2d 823 (1989), as modified by In re Yasiel R ., 317 Conn. 773, 781, 120 A.3d 1188 (2015). Most relevant to our resolution of this claim is the defendant's assertion that it is of constitutional magnitude under Golding ’s second prong because "[t]he essence of due process is the requirement that a person in jeopardy of a serious loss [be given] notice of the case against him and [an] opportunity to meet it." ⁴ (Internal quotation marks omitted.) State v. Lopez , 235 Conn. 487, 493, 668 A.2d 360 (1995). The state responds that the defendant has cited no legal authority to support his argument that, to safeguard due process rights, either the state must provide specific details in a pretrial notice about other sexual misconduct evidence or the trial court must conduct a hearing. ⁵ To the contrary, the state argues that State v. O'Brien-Veader , 318 Conn. 514, 545, 122 A.3d 555 (2015), controls the resolution of this claim because this court held in that case that criminal defendants do not have a constitutional right to pretrial notice of any inculpatory, uncharged misconduct evidence that the state plans to offer into evidence. We agree with the state that this claim fails under the second prong of Golding .

Under Golding , "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation ... exists and ... deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original; footnote omitted.) State v. Golding , supra, 213 Conn. at 239–40, 567 A.2d 823 ; see also In re Yasiel R ., supra, 317 Conn. at 781, 120 A.3d 1188 (modifying third condition of Golding ). The constitutional claim the defendant advances in the present case is one of procedural due process. This court has stressed that, "[f]or more than a century the central meaning of procedural due process has been clear: [p]arties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified. ... It is equally fundamental that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner." (Internal quotation marks omitted.) In re DeLeon J ., 290 Conn. 371, 378, 963 A.2d 53 (2009). To trigger procedural due process protections, however, the property or liberty interest at stake must be "cognizable under the due process clause ...." (Internal quotation marks omitted.) Frillici v. Westport , 231 Conn. 418, 437, 650 A.2d 557 (1994). "[D]ue process is a flexible principle that calls for ... procedural protections [that] the particular situation demands." (Internal quotation marks omitted.) In re DeLeon J ., supra, at 378, 963 A.2d 53. Therefore, when analyzing whether a trial court has provided adequate procedural due process protections, we consider the circumstances at hand to ensure that the defendant had a...