State v. Tierinni

165 Conn.App. 839

140 A.3d 377

STATE of Connecticut

v.Christopher TIERINNI.

No. 36903.

Appellate Court of Connecticut.

Argued March 2, 2016.

Decided May 31, 2016.

Stephanie L. Evans, assigned counsel, for the appellant (defendant).

Sarah Hanna, assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Elizabeth C. Leaming, senior assistant state's attorney, for the appellee (state).

DiPENTIMA, C.J., and LAVINE and SCHALLER, Js.

DiPENTIMA, C.J.

The defendant, Christopher Tierinni, appeals from the judgment of conviction, rendered after a jury trial, of four counts of sexual assault in the second degree in violation of General Statutes § 53a–71 (a)(1) and three counts of risk of injury to a child in violation of General Statutes § 53–21(a)(2). On appeal, the defendant claims that (1) he was denied his federal and state constitutional rights to due process and a fair trial when he was excluded from critical stages of the proceedings and (2) the court improperly instructed the jury. We affirm the judgment of conviction.

The jury reasonably could have found the following facts. The victim¹ met the defendant in the spring of 2011. At that time, the defendant was twenty-eight years old and the victim was fifteen years old. Near the end of May, 2011, the defendant kissed the victim. The defendant told the victim that he loved her and eventually they engaged in sexual activity at his apartment on several occasions. The victim started missing school and stayed at the defendant's apartment for extended periods.

On June 17, 2011, the victim called the defendant and asked him to pick her up at a fast food restaurant near her home. The defendant arrived at the restaurant in his green minivan, which the victim entered. Police officers, who had been investigating the nature of the relationship between the defendant and the victim, effectuated a traffic stop and found the victim crouched in the back seat. Although the victim initially denied having a physical relationship with the defendant, she eventually disclosed the sexual activity to law enforcement personnel.

In an amended substitute information, the state charged the defendant with five counts of sexual assault in the second degree in violation of § 53a–71 (a)(1) and four counts of risk of injury to a child in violation of § 53–21(a)(2). Following a trial, the jury returned a not guilty verdict with respect to counts one and two of the information alleging, respectively, sexual assault in the second degree and risk of injury to a minor for the time period of May 20, 2011 through May 31, 2011. The jury returned guilty verdicts for the remaining charges for conduct that occurred on June 6, 2011, June 7, 2011, and June 15, 2011. The court accepted the verdict, rendered judgment thereon, and sentenced the defendant to an effective term of eighteen years of incarceration and forty-two years of special parole. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that he was denied his federal and state constitutional rights to due process and a fair trial when he was excluded from a critical stage of the proceedings. Specifically he argues that his constitutional rights were violated by the court's practice of hearing arguments on evidentiary objections at sidebar. He also contends that as a result of this practice, the court failed to ensure that an adequate record was created for appellate review. The defendant concedes that this claim is unpreserved and seeks review pursuant to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), or, in the alternative, that we reverse his conviction pursuant to the plain error doctrine.² The state counters that (1) the record is inadequate to review the defendant's claim, (2) the defendant waived this claim by expressly agreeing to the court's practice, (3) the defendant's brief is inadequate and (4) the claim fails on the merits. We agree with the state that the defendant waived this claim.

The following additional facts aid our discussion. Prior to the start of evidence, the court engaged in the following colloquy with the prosecutor and defense counsel. “If there are no other matters that need to be clarified for counsel or rulings, I do want to mention to counsel it's my practice, in fact, I think you heard one of the prospective jurors, he was not accepted, complain about sitting here in a trial back in 2003, a civil case with an unnamed judge and unnamed lawyers, where he felt that they were constantly being sent out, there were constant problems. I've never had the comment about one of my trials yet.

“What we're going to do, what my practice is, unless there is objection to [it ], is if you have a simple objection and you don't need any detailed argument, you know, then you state it: Objection, hearsay.

“Let's say, for example, [defense counsel] objects to something and says, ‘Objection, hearsay’; if [the prosecutor] is claiming the medical record exception, she'll simply say, ‘Medical record exception,’ and then I could rule and we'll move on.

“If, however, one of you feels the need to further explain your position, of if, for example, it's a relevancy or a prejudice versus probative objection and you think that, perhaps correctly, that I don't know the context of this evidence yet, then you should ask for a sidebar.

“[The prosecutor is] familiar with this. We did this the last trial she had here, but basically what I do, [defense counsel] is if you need to speak to me further, other than a very simple, very brief objection, such as objection, hearsay, then ask for a sidebar. We'll have a sidebar over there. We'll keep our voices low. The jury won't hear it. You'll make your pitch. You'll make your two points or whatever. [The prosecutor] will do the same. We'll go back on the record. I'll rule. The jury will not hear the substance of what you're saying so that there's no risk they'll be prejudiced by it.

“At the next break, the next time the jury is out of the room, for example, the morning recess is half an hour later, the jury leaves for the morning recess, you then will have the opportunity, and I encourage you to put on the record the substance of any discussion we had if you wish it.

“Now, sometimes in retrospect it turns out it wasn't important because of the answer or something of that nature, but basically that enables us to have discussions about evidentiary issues briefly without making the jury go in and out, in and out, and at a later time, the next break when the jury's out, to place the substance of your argument on the record, and all I ask in that regard is that if you give me two points at sidebar, then half an hour later, after we've moved on and I've overruled the objection, that I don't hear for the first time a third point being raised because it's too late for me to deal with it and I won't be happy. And I must say, in all the years I've done this, only one lawyer's done that and he won't ever do that again, I'm sure.

“If there's [an ] objection, we won't follow that procedure, but I find it helps the trial move along and it keeps the [jurors] from feeling that they're getting kicked out, kicked out, kicked out all the time. I think it might also reduce annoyance with the attorneys or the judge, although I'm not concerned with that, from the jurors constantly having to leave.

“And again, let me be very clear, if there's something you feel needs to immediately be put on the record, tell me as soon as we get to sidebar and I'll kick the jury out. I'm not trying to prevent anybody from making a record. You'll always have the chance to make a record at the next break. If you feel you need to make an immediate record, just tell me that too and I'll immediately excuse the jury. In no way am I trying to prevent a record from being made. I'm simply trying to keep the case moving along and reduce any annoyance on the part of the jury. Is there any objection to that procedure?” (Emphasis added.) Both counsel expressly responded, “No, Your Honor.”

During the first day of evidence, the state called the victim as a witness. At one point, she made reference to the defendant's jail cell number. Defense counsel objected and requested a sidebar. The court conducted a sidebar discussion and ordered that the comments regarding the defendant being in jail or his jail cell be stricken. A few moments later, defense counsel raised an objection when the state attempted to have state's exhibit A admitted into evidence. Specifically, defense counsel requested that the jury be excused but the court instead held a sidebar discussion, and at the conclusion admitted state's exhibit A into evidence. A few moments later, defense counsel raised an objection to the state's next exhibit and requested a sidebar conference. After that conference, defense counsel stated, on the record, that the basis for her objection was that state's exhibit B was more prejudicial than probative. The court overruled the objection, and stated that defense counsel would have the opportunity to elaborate in a few minutes.

After the jury was excused for lunch, the court and counsel addressed the admission of state's exhibits A and B into evidence on the record. The court and the parties continued to use this practice during the trial and at times the jury was excused at the time an objection was made.³ At no point during the proceedings did the defendant raise any objection to this procedure.

As we previously noted, the defendant seeks review of his unpreserved claim under the doctrine set forth in State v. Golding, supra, 213 Conn. at 239–40, 567 A.2d 823. “Under Golding review, as modified in In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015), 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...