State v. Smith

174 Conn.App. 172

166 A.3d 691

STATE of Connecticut

v.Stacy SMITH

AC 37632

Appellate Court of Connecticut.

Argued January 30, 2017

Officially released June 27, 2017

Kevin M. Smith, with whom, on the brief, were Norman A. Pattis and Daniel M. Erwin, for the appellant (defendant).

Nancy L. Walker, deputy assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Christopher Pelosi, senior assistant state's attorney, for the appellee (state).

DiPentima, C.J., and Mullins and Flynn, Js.

DiPENTIMA, C.J.

The defendant, Stacy Smith, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the second degree in violation of General Statutes § 53a–71(a)(1) (count one), risk of injury to a child in violation of General Statutes § 53–21(a)(2) (count two), sexual assault in the second degree in violation of § 53a–71(a)(1) (count three), risk of injury to a child in violation of § 53–21(a)(2) (count four), sexual assault in the fourth degree in violation of General Statutes § 53a–73a(a)(1) (count five), risk of injury to a child in violation of § 53–21(a)(2) (count six), and risk of injury to a child in violation of § 53–21(a)(1) (count seven). On appeal, the defendant claims that (1) his conviction violated his right to due process under the constitution of Connecticut because the police lost potentially exculpatory evidence, in the form of a text message, in violation of State v. Morales , 232 Conn. 707, 720, 657 A.2d 585 (1995), and (2) his conviction for both sexual assault in the second degree (counts one and three) and risk of injury to a child (counts two and four) constituted a violation of his constitutional right against double jeopardy. We disagree and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The charged events occurred between October, 2007, and October, 2009, when the victim¹ was thirteen, fourteen and fifteen years old. At that time, she lived with her mother, M, two older brothers, and a younger sister. Until the end of 2009, the victim's family socialized "almost every weekend" with D, who was the victim's godmother and M's best friend, and D's sons. In 2006, the victim met the defendant for the first time at a Dunkin' Donuts store and learned that he was the father of D's oldest son. The defendant was thirty-seven or thirty-eight years old at the time, recently had finished serving a prison sentence for federal narcotics violations, and was living in a halfway house and working at Dunkin' Donuts. Shortly thereafter, the defendant and D resumed their previous relationship, and, in the winter of 2007, the defendant moved into D's East Hartford home.

In the summers of 2007, 2008 and 2009, the victim and her family regularly attended get-togethers at D's home with D, her sons, and the defendant. During that time, the victim also frequently babysat for D's younger son at D's house. On those occasions, the defendant would often be present. The defendant's inappropriate behavior toward the victim started in 2007, when the victim was socializing with D's family and babysitting at D's house. Specifically, between 2007 and 2008, the defendant began talking to the victim about sex, he would caress her calf while they were watching a movie, and he would show her "in his phone ... other girls he was messing with other than [D], telling [her] things that he would do with them and ... what [she] should do with other guys if [she] was dating someone."

In 2008, the defendant began kissing and touching the victim while she was babysitting or attending social gatherings at D's house. The defendant put his fingers in her vagina and touched her breasts or buttocks multiple times between October, 2008 and October, 2009. On one occasion in the summer of 2008, the defendant performed oral sex on the victim while she was babysitting for D. Although the victim asked him to stop and tried to push him off of her, he continued for about thirty seconds and stopped when he heard D's car pull into the driveway. On several occasions when the defendant was kissing or touching the victim, he would unzip his pants and pull out his penis. Although the defendant asked the victim to perform oral sex on him two or three times, she refused, and he "laughed it off."

In 2010, the victim's family stopped socializing with D's family because the defendant "was getting abusive" with D, and M did not want her daughters "to be around all that arguing." The last time the victim saw the defendant was at a Fourth of July party at D's house in 2010, at which the defendant tried to pull the victim into a room and to kiss her, but she was able to escape.

In January, 2011, the victim told M about the defendant's actions. The next day, M took the victim to the East Hartford Police Department, where they met with Officer Daniel Zaleski. Zaleski spoke with the victim separately for about twenty minutes, during which time the victim disclosed the pertinent details about the defendant's repeated sexual conduct toward her. Zaleski then referred the case to a juvenile investigator, Detective Samuel Kelsey, who investigated sexual assaults involving minors, and reported the matter to the Department of Children and Families (department).

On February 1, 2011, after receiving a phone call from Kelsey requesting to speak with him about the allegations against him, the defendant voluntarily went to the East Hartford Police Department and gave a statement. According to Kelsey, the defendant admitted to having had "close contact" with the victim "in an inappropriate nature, [such] as touching her breast and vagina." Specifically, during this interview with Kelsey, the defendant "said at no time did he have sex with her; he said he was under the influence of alcohol and he can't remember all the events but he does admit having made contact with her; he said he was very sorry and that he would like to make amends in any way deemed necessary, this is not him ... but that's no excuse." After Kelsey reduced the defendant's statement to writing, the defendant initialed and signed it. The entire interview lasted approximately forty minutes.

After the interview, in the lobby of the police station, the defendant was met by Betzalda Torres, an investigator employed by the department who was investigating the alleged physical neglect and sexual abuse of the victim by the defendant. After Torres reviewed the allegations against him involving the physical neglect and sexualabuse of the victim, for the purposes of the investigation by the department, the defendant "basically, confirmed that what [the victim] said was correct, did not deny it, and ... [he] was feeling apologetic to the family for what he ha[d] done." The defendant told Torres that he had been sexually inappropriate with the victim and that he had "many" discussions with her regarding sex and her virginity. During this interview, the defendant was not specific as to the details of the actual acts he preformed, but he explained that his alcohol and drug use played a role and he "took full responsibility" for being "sexually inappropriate toward [the victim]."

The defendant subsequently was arrested and, following a jury trial, was convicted of two counts of sexual assault in the second degree, four counts of risk of injury to a child, and one count of sexual assault in the fourth degree. The court, Dewey, J. , subsequently sentenced the defendant to a total effective sentence of thirty years incarceration, followed by five years of special parole. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that his conviction violated his right to due process under the constitution of Connecticut because the police lost potentially exculpatory evidence, in the form of a text message, sent from the defendant to M, in violation of State v. Morales , supra, 232 Conn. at 707, 657 A.2d 585. Specifically, the defendant argues that because M showed the text message to Kelsey and Torres, the East Hartford police and the department were on notice of the existence of this "apologetic" text message, creating a duty to preserve the evidence, and that their failure to do so violated his right to due process under the state constitution.² The state counters that there is an inadequate record to review the defendant's due process claim because he never raised this issue before the trial court, and, therefore, the court did not make the findings necessary for us to review this claim. We agree with the state.

The following facts are relevant to our conclusion. At the defendant's trial multiple witnesses testified regarding the existence of a text message that the defendant sent to MT in February, 2011.³ Specifically, while being cross-examined by defense counsel, M testified that the defendant sent her a text message that was a purported apology for his actions involving the victim.⁴

During redirect examination by the prosecutor, M further testified that she showed this text message to Kelsey and Torres, but that she did not have a copy of the text message because her phone had been damaged, and she no longer had that phone.

Kelsey also testified regarding the text message sent from the defendant to M while being cross-examined by defense counsel. Specifically, Kelsey testified that he had seen the text message that was a purported apology, but that he did not memorialize it or record it because he believed that there was probable cause to arrest the defendant based on the statements he made regarding the victim.⁵

During direct examination by the prosecutor, Torres also testified regarding the existence and contents of the text message. Torres explained that M showed her a text message she had received from the defendant that was apologetic in nature. Torres further testified that she did not save that text message or make a copy of it.⁶

In addition, Detective Frank Napolitano...