author: LAVINE, J.

text:
    STATE OF CONNECTICUT v. GLENDON THORNTON
    (AC 28170)
    McLachlan, Lavine and Mihalakos, Js.
    Argued November 13, 2008
    officially released February 17, 2009

      Steven D. Ecker, with whom, on the brief, were James T. Cowdery and Lewis H. Chimes, for the appellant (defendant).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John M. Waddock, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

Connecticut is unique in that its constitution and statutes provide a right in criminal cases to question each venireperson individually; see Conn. Const., art. I, § 8; Conn. Const., art. I, § 19; outside the presence of other venirepersons. See General Statutes §§ 54-82f and 54-84g; see also State v. Robinson, 237 Conn. 238, 247 n.9, 676 A.2d 384 (1996). The purpose of such voir dire is to enable the court to determine whether the venireperson is qualified to serve on the jury and to assist the parties in the informed exercise of peremptory challenges. See State v. Barnes, 16 Conn. App. 333, 339, 547 A.2d 584 (1988). To protect a party’s constitutional right to individual voir dire, the court should allow counsel a reasonable degree of latitude to ask meaningful, probing questions about venirepersons’ beliefs and attitudes, particularly when a case involves charges that a member of the community might be reluctant to discuss frankly. The issue in this appeal is whether, under the specific facts of this case involving an allegation of male on male sexual assault and in light of the particular questions asked, the court denied the defendant his constitutional right to question potential jurors regarding their feelings about homosexuality.

The defendant, Glendon Thornton, appeals from the judgment of conviction, rendered after a jury trial, of unlawful restraint in the second degree in violation of General Statutes § 53a-96 and sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (2). On appeal, the defendant claims that the court denied him his state constitutional and statutory rights to question members of the venire panel individually about their views of homosexuals and homosexual conduct. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At the time of the events in question, the victim was a twenty year old Quinnipiac University student majoring in marketing who aspired to become a producer of plays. One of his favorite television shows was “Cops,” a reality show that often dramatized incidents in which police officers placed handcuffed suspects in the backseat of a police car.

On Saturday, September 10, 2005, the victim took a train from New Haven to New York City to see a Broadway play. After meeting members of the cast at the stage door after the play, the victim returned to New Haven via train, arriving at Union Station (station) at approximately 1:10 a.m. on Sunday, September 11,2005. The victim missed the 1:15 a.m. shuttle bus from the station to the university’s Hamden campus and was waiting for the 1:55 a.m. shuttle when the defendant, an Amtrak police officer, approached him and struck up a conversation. The defendant was dressed in his Amtrak police uniform and wore a badge that identified him. They exchanged pleasantries about college life and experiences. The defendant asked the victim if he had a girlfriend. When the 1:55 a.m. shuttle failed to arrive, the victim stated that he would take a taxicab to the university. The defendant volunteered to drive the victim to the campus, an offer the victim accepted in order to save the $30 taxicab fare.

The two men got into a white sport utility vehicle marked with Amtrak police insignia. The defendant drove out of the station and entered Interstate 91 traveling north. The victim was familiar with the route to the university and knew that the most direct route was to take exit ten from Interstate 91. Before reaching exit ten, the defendant informed the victim that he needed to patrol a railroad yard that had been plagued by burglaries and took an exit from Interstate 91 with which the victim was unfamiliar. The defendant drove into an Amtrak railroad yard, continued to a narrow bridge that crossed the Quinnipiac River and down a gravel road. The defendant stopped in a dimly lit area and asked the victim if he had ever seen the back of a police car. The victim replied that he had not, and the defendant told him that he wanted to show him.

The defendant got out of the police car and walked to the rear passenger door. He took out a pair of handcuffs and told the victim that he wanted to demonstrate an arrest. The victim backed away, but the defendant, indicating that it was a joke, held out the handcuffs and key. The defendant moved behind the victim and put the handcuffs on him. After the victim was handcuffed, the defendant told him to sit in the backseat of the vehicle. After the victim sat down, the defendant asked him to lie down on the backseat to experience what it really is like to be placed in a police car after being arrested.

The defendant helped the victim get out of the car and told him that he usually searched a person whom he had arrested. The defendant then patted down the victim, starting at his torso and moving downward. When the defendant reached the area of the victim’s genitals, he fondled the victim. Initially, the defendant fondled the victim through his clothing, but he subsequently unzipped the victim’s trousers, reached inside and continued to fondle the victim between his outer clothing and his underwear. When the defendant finished, he removed the handcuffs from the victim, and both men got into the police car again. The defendant stated that “most people I search get aroused.” The defendant then drove the victim to his dormitory at the university.

When he returned to his room, the victim was confused and spoke to his roommate, stating that he thought that he had been violated. On September 13, 2005, after speaking with his sister, a social worker, the victim filed a complaint with the university security department. After listening to the victim’s complaint, the university security personnel contacted the New Haven police. The defendant was arrested and charged with kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A) and sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A). The jury found the defendant guilty of the lesser included offenses of unlawful restraint in the second degree and sexual assault in the fourth degree. The defendant was given a total effective sentence of two years in prison, execution suspended, and five years of probation.

On appeal, the defendant claims that the court violated his right to individual voir dire by prohibiting him from asking prospective jurors about their views of homosexuality. After reviewing the transcript, the parties’ briefs and oral arguments, we conclude that the court did not deprive the defendant of his right to individual voir dire.

I

VOIR DIRE

Counsel for the parties interviewed fifty-seven venire-persons over four days of jury selection: June 19, 20, 27, and July 7, 2006. The claim on appeal arose during the first day of voir dire when counsel for the parties questioned five members of the venire panel. Of the first five venirepersons, two were excused for cause, one was excused by the state and two were selected to be members of the jury. The claim raised by the defendant occurred during defense counsel’s voir dire of the fifth prospective juror, J, which follows:

“[Defense Counsel]: This case is a male—an accusation of a male on male sexual assault. Is there anything about that type of accusation that would—you would feel uncomfortable sitting as a juror—

“[J]:.No. . . .

“[Defense Counsel]: And do you know anything about or have you heard anything about male on male sexual assault cases or incidents?”

“[J]: No.

* * h=

“[Defense Counsel]: Next question is that do you have any male friends or family, male family members who you know to be gay?

“[J]: Yes.

“[Defense Counsel]: And have you ever discussed issues of violence committed against gay men with them?

“[J]: No.

“[Defense Counsel]: And you know the terms ‘in the closet’ or ‘out of the closet’?

“[J]: Yeah.

“[Defense Counsel]: In the closet meaning people who may be gay but aren’t publicly, to the world, letting anyone know.

“[J]: Right.

“[Defense Counsel]: Do you know anyone who you think might or might not be sort of gay but not publicly out there?

“[J]: Yes.

“[Defense Counsel]: And kind of what kind of—what makes you think that they might be?

“ [The Prosecutor]: Well, at this point, I think I’m going to object to that question, if Your Honor, please. I think that’s going far field, and I object to it.

“The Court: You claim that, [defense counsel]? You claim that question?

“[Defense Counsel]: I do.

“The Court: Okay. Objection sustained.

“[Defense Counsel]: Do you think that there are people, males in the world, who are struggling with the fact that they are attracted to males?

“[The Prosecutor]: I’m going to object to that question as well, if Your Honor, please. Objection.” (Emphasis added.)

The court excused J and stated that the line of questions had been asked before without objection and asked the prosecutor to articulate the objection. The prosecutor explained that he had intended to wait until the beginning of proceedings the next day to raise his objection to the questions “about males with regard to coming out of the closet, whether they are gay or not.” He also articulated that unless defense counsel made an offer that those matters were an issue in this case, and the state was not aware of such evidence, the questions should not be introduced to the minds of prospective jurors. He asserted that it is improper to ask voir dire questions that pose factual information.

The court asked defense counsel to respond. Defense counsel disagreed with the prosecutor, explaining that this case was about a male on male sexual assault. His client was a married heterosexual man with a child, and the victim also claimed to be heterosexual. Defense counsel argued that he needed to know how the potential jurors feel about men who are struggling with their sexual identity, and how they will view the defendant and the victim. The court then asked defense counsel to explain how the questions related to the potential jurors’ qualifications. Defense counsel responded that the questions were not intended to elicit reasons to excuse jurors for cause but that a male on male sexual assault case is different from a male on female sexual assault case. Counsel needed to know if prospective jurors were uncomfortable with homosexuality and if they would be trying to determine whether the defendant is attracted to men. Counsel conceded that homosexuality was not an element of the crime of sexual assault but argued that he needed to know how the jurors may think about the defendant.

The court sustained the prosecutor’s objection, ruling that “the sexual orientation of either the defendant or the [victim] is not relevant to the jury’s consideration here. This is an accusation of fact, and whatever may be the root motivation, I don’t know about that. Look, if it was something that was in the case and the whole question of someone’s struggling with their sexuality was . . . explicitly in the case, well, I . . . would permit some questions along those lines. But not on the present record. . . . The law in Connecticut is [that] you cannot test out jurors, sort of what their reaction is to the facts.”

When J returned, defense counsel asked, “I take it that there is nothing about a same sex sexual assault, that allegation alone, that would make you uncomfortable about sitting and hearing the facts and the evidence and being fair to both sides.” J agreed, and defense counsel turned to another line of inquiry. J later was accepted as a member of the jury.

The transcript reflects that defense counsel and the prosecutor continued to ask members of the venire panel whether they or anyone they knew had been the victim of or accused of a sexual assault and whether there was anything about homosexuality or a male on male sexual assault that would prevent them from being fair and impartial members of the jury. The court dismissed for cause venirepersons who had been or knew friends or family who had been the victims of sexual assault or who were uncomfortable sitting on a male on male sexual assault case.

II

STANDARD OF REVIEW

“Our state constitution provides that in all . . . criminal actions tried before a jury, the parties shall have the right to challenge jurors peremptorily, with the number of such challenges to be established by law. Conn. Const., art. I, § 19. In addition, there is a statutory right to a voir dire examination of each prospective juror in a criminal action. See General Statutes §§ 54-82f, 54-82g. It is settled law in Connecticut that [t]he right to question each juror individually by counsel shall be inviolate. Conn. Const., art. I, § 19 [as amended by article four of the amendments].” (Internal quotation marks omitted.) State v. Barnes, supra, 16 Conn. App. 338. “[I]f there is any likelihood that some prejudice is in the juror’s mind which will even subconsciously affect his [or her] decision of the case, the party who may be adversely affected should be permitted questions designed to uncover that prejudice. This is particularly true with reference to the defendant in a criminal case.” (Internal quotation marks omitted.) Id., 339.

In our state constitution, the meaning of the term “impartial jury” is “a jury that is: (1) composed of individuals able to decide the case solely on the evidence and apply the law in accordance with the court’s instructions; and (2) properly selected from venire panels comprising a representative cross section of the community.” State v. Griffin, 251 Conn. 671, 691-92, 741 A.2d 913 (1999). “[A]ll will agree that [the] jury should be indifferent and impartial; that they should be [individuals] whose minds are open to impressions which the facts and law in the case ought to make, so that there should be no combat with preconceived opinions in regard to the case. . . . [I]f a potential juror has such fixed and settled opinion of the case that he cannot judge impartially the guilt of the defendant, he should not be selected to sit on the [jury] panel. . . . Where [however] a juror has a mere . . . impression, arising from facts supposed to exist, of the truth of which he has formed no opinion . . . there can be no ground to infer hostility or prejudice, and so the juror must be considered indifferent. To exclude persons on such grounds would be to adopt a rule not known to the common law .... It is enough if a juror is able to set aside any preconceived notions and decide the case on the evidence presented and the instructions given by the court. . . . Thus, [our Supreme Court previously has] recognized that the state constitutional right to trial by an impartial jury provides criminal defendants the common-law right ... to challenge prospective jurors for cause and to have excused from service those venirepersons who are unable to set aside preconceived notions and decide the case solely on the evidence and in accordance with the court’s instruction on the law.” (Citations omitted; internal quotation marks omitted.) Id., 696.

A defendant will not prevail on appeal just because he might be correct in asserting that a prohibited line of questioning would have exposed potential bias. State v. Smith, 222 Conn. 1, 7, 608 A.2d 63, cert. denied, 506 U.S. 942, 113 S. Ct. 383, 121 L. Ed. 2d 293 (1992). “The latitude . . . afforded the parties in order that they may accomplish the puiposes of the voir dire [however] is tempered by the rule that [questions addressed to prospective jurors involving assumptions or hypotheses concerning the evidence which may be offered at the trial . . . should be discouraged .... [A]ll too frequently such inquires represent a calculated effort on the part of counsel to ascertain before the trial starts wha,t the reaction of the [venireperson] wiü be to certain issues of fact or law or, at least, to implant in his mind a prejudice or prejudgment on those issues. Such an effort transcends the proper limits of voir dire and represents an abuse of the statutory right of examination.” (Emphasis added; internal quotation marks omitted.) State v. Lugo, 266 Conn. 674, 684, 835 A.2d 451 (2003). “Questions addressed to prospective jurors involving assumptions or hypotheses concerning the evidence which may be offered at the trial or instructions which may given by the court should be discouraged. . . . Both court and counsel should be alert to a duty to avoid a perversion of the privilege accorded to litigants by [§ 54-82f].” (Citation omitted; internal quotation marks omitted.) State v. Van Valkenburg, 160 Conn. 171, 173, 276 A.2d 888 (1970).

Ill

ANALYSIS

On appeal, the defendant claims that his “constitutional and statutory voir dire rights were violated in a criminal prosecution for a male on male sexual assault, when the trial court prohibited defense counsel in jury selection from asking prospective jurors any questions about their views concerning homosexual conduct . . . We conclude that the defendant overstates the scope of the court’s ruling, which was predicated on the then existing record and limited to the specific questions asked. On the basis of our review of the voir dire transcript, we disagree that the court prohibited the defendant from asking prospective jurors any questions about their views concerning homosexual conduct in a male on male sexual assault case. The prosecutor did not object to defense counsel’s questions regarding attitudes toward homosexuality in general. The prosecutor objected specifically to a question asking what made J think that a person might be gay but reluctant to be open about it and to a question about whether she thought that there were males who were struggling with the fact that they were attracted to males. The court sustained those objections, concluding that the issue of straggling with sexual identity was not a factor in the case and that Connecticut law does not permit counsel to test a juror’s reaction to facts. We agree with the state that those questions were too attenuated from the charges and conclude that the court properly sustained the prosecutor’s objection to two questions that were unrelated to the issues in the case, were not based on undisputed facts and would have tested the prospective jurors’ view of certain facts. The court therefore did not violate the defendant’s constitutional and statutory rights to question venirepersons’ views generally about homosexual conduct. Moreover, subsequent to the court’s ruling, the parties conducted voir dire of forty-nine venirepersons with both counsel at times being permitted to ask whether there was anything about homosexuality or a male on male sexual assault that would prohibit them from being fair and impartial members of the jury.

In his brief, the defendant has cited a substantial number of legal and academic authorities and the popular press for the proposition that homosexuality is a controversial and divisive subject in our society. We agree, and our Supreme Court recently acknowledged that fact in Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 175-76, 957 A.2d 407 (2008) (“gay persons historically have been, and continue to be, the target of purposeful and pernicious discrimination due solely to their sexual orientation”). We also agree with the defendant that a venireperson’s attitudes, beliefs or prejudices toward or about sensitive issues that may prevent a person from being able to be a fair and impartial juror are appropriate grounds for exploration. In a case concerning a male on male, or female on female, sexual assault, relevant questions that delve into prejudices, beliefs and attitudes toward homosexuality should be permitted.

In detemiining whether the court in this case unduly restricted the defendant’s constitutional and statutory rights, we begin by examining the question or questions that the court prohibited. See State v. Lugo, supra, 266 Conn. 674. The transcript discloses that the court did not prohibit defense counsel from asking venirepersons general questions regarding their attitudes toward homosexuality either before or after sustaining the prosecutor’s objection to questions pertaining to “coming out of the closet” and how a venireperson knows that a man is struggling with his sexual orientation. In ruling, the court stated that it would permit questions about a man’s struggles with his sexual orientation if defense counsel could demonstrate how that was an issue in the case. If defense counsel was uncertain of the scope of the court’s ruling, he should have asked the court to clarify it. See id., 685. Having failed to seek a clarification, the defendant cannot now successfully claim prejudice.

A trial court abuses its discretion by limiting the scope of voir dire questions when it prohibits questions concerning the discovery of prejudices a juror might harbor. In State v. Barnes, supra, 16 Conn. App. 333, the defendants were charged with burglary after entering the window of a residence in the early morning hours of December 26 and stealing gifts that were under a Christmas tree. Id., 335. During juiy selection, defense counsel asked prospective jurors whether “ ‘for religious or other reasons’ ” the fact that the alleged crime had occurred the day after Christmas would affect their ability to be fair and impartial. Id., 337. The state objected, and the court sustained the objection, noting that Christmas had nothing to do with the crimes charged. Id. This court reversed the defendants’ convictions, concluding that the trial court had violated the defendants’ right to a fair trial by prohibiting counsel from asking prospective jurors about Christmas, given the fact that it is a holiday “conspicuously celebrated to a greater or lesser degree throughout this country.” Id., 339. Stealing Christmas gifts from under a tree “may to some be considered extremely offensive and may color [jurors’] ability to be fair, while it may not affect the perspective of others in any manner.” Id., 340.

A trial court does not deny a defendant his state constitutional rights by limiting the scope of voir dire to general subjects as opposed to a fact specific inquiry. State v. Lugo, supra, 266 Conn. 674, was a felony murder case that arose from an attempted robbery involving rival gangs. Defense counsel posed questions to potential jurors about the Latin Kings gang. The court instructed defense counsel to refrain from asking members of the venire panel any questions about the Latin Kings, noting that “it was improper to elicit a prospective juror’s reaction to a particular piece of evidence through voir dire questioning . . . .’’Id., 682. On appeal to our Supreme Court, the defendant claimed that the trial court prohibited him from asking any questions related to gangs. Id., 684. Our Supreme Court stated that “it is quite clear from the record that the trial court precluded defense counsel only from asking questions concerning the Latin Kings, but that questions concerning gangs in general were not prohibited . . . .” Id.; but see id., 705 (Borden, J,, dissenting) (“rale against asking questions concerning various potential states of the evidence does not automatically prohibit questions concerning undisputed facts that will be set forth at trial”). Here, the defendant has failed to distinguish Lugo from the facts of this case. The court’s ruling was specific to the two questions to which the prosecutor had objected, did not relate to undisputed facts and did not preclude questions about homosexuality in general.

We note that in sustaining the prosecutor’s objections, the court stated that sexual orientation was not relevant to the case. We disagree. Section 53a-73a (a) provides in relevant part that “[a] person is guilty of sexual assault in the fourth degree when ... (2) such person subjects another person to sexual contact without such other person’s consent . . . .” Sexual contact is defined as “any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person . . . .” (Emphasis added.) General Statutes § 53a-65 (3). In a case of male on male sexual assault, sexual gratification could be evidenced by homosexual conduct. For that reason, it was appropriate for defense counsel and the prosecutor to inquire of the venirepersons’ attitudes, beliefs and biases concerning homosexuality. Taken in context, however, we view the court’s comment that sexual orientation was not relevant to this case as simply a statement of opinion, not part of its ruling, and not imposing any limitations on the defendant’s opportunity to question prospective jurors. As previously noted, if defense counsel believed that the court’s ruling was unclear, “it was defense counsel’s obligation to seek further clarification”; State v. Lugo, supra, 266 Conn. 685; as to the ruling’s scope. The court’s comments, taken in context, cannot fairly be read to mean that the court would not have permitted a properly worded, focused inquiry had defense counsel asked appropriately relevant questions.

The judgment is affirmed.

In this opinion the other judges concurred.

       The constitution of Connecticut, article first, § 8, provides in relevant part: “In all criminal prosecutions, the accused shall have a right ... in all prosecutions by . . . information, to a speedy, public trial by an impartial jury- • • •”

       The constitution of Connecticut, article first, § 19, as amended by article four of the amendments, provides in relevant part: “The right of trial by jury shall remain inviolate .... In all .. . criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily, the number of such challenges to be established by law. The right to question each juror individually by counsel shall be inviolate.”

       General Statutes § 53a-96 (a) provides that “[a] person is guilty of unlawful restraint in the second degree when he restrains another person.”

       General Statutes § 53a-73a (a) provides in relevant part that “[a] person is guilty of sexual assault in the fourth degree when ... (2) such person subjects another person to sexual contact without such other person’s consent . . . .”

       The constitutional right to individual voir dire is incorporated in our General Statutes and rules of practice. See General Statutes § 54-82f (“[i]n any criminal action tried before a jury, either party shall have the right to examine, personally or by his counsel, each juror outside the presence of other prospective jurors as to his qualifications to sit as a juror in the action, or as to his interest, if any, in the subject matter of the action, or as to his relations with the parties thereto. If the judge before whom the examination is held is of the opinion from the examination that any juror would be unable to render a fair and impartial verdict, the juror shall be excused by the judge from any further service upon the panel, or in the action, as the judge determines”); Practice Book § 42-12 (same).

       In accordance with our policy of protecting the privacy interests of the victims of sexual assault, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

       The defendant was twenty-nine years old and married. At the time of trial, the defendant was the father of an eleven week old child. He has an associate’s degree from Johnson and Wales University. He had been an Amtrak police officer for two years, following two years of employment as an Amtrak ticket taker. On September 10 and 11, 2005, he was working the 8 p.m. to 8 a.m. shift. His responsibilities were to patrol Amtrak facilities, tracks, stations and maintenance areas between New Haven and Springfield, Massachusetts, and New Haven and Clinton.

       At trial, the defendant testified that after he initially saw the victim waiting for the shuttle, the defendant left the station and inspected the tracks near the tunnels adjacent to Interstate 95 in East Haven and the Amtrak repair facility in Hamden. When he returned to the station, Doris Mitchell, a New Haven parking authority security guard, told him that he needed to speak to the victim. Mitchell testified that the victim had been screaming and slamming the telephone. The defendant approached the victim and learned that the victim had missed the shuttle bus. The defendant offered to take the victim to the university. They left the station at approximately 2:20 a.m. Due to traffic congestion on Interstate 91, the defendant exited the highway to take State Street to Hamden. As he passed the Amtrak maintenance facility on Middletown Avenue, the victim expressed interest in seeing the facility. The defendant obliged the victim’s request by driving through the facility. The defendant and the victim arrived at the victim’s dormitory at approximately 2:45 a.m. As he was leaving the campus, the defendant heard a fire alarm and saw security personnel milling about. At trial, the defendant introduced evidence that the alarm at the university was received at 2:47 a.m. and cleared at 2:53 a.m. The defendant’s investigator, Matthew Whalen, testified that he drove the route taken by the defendant on the night in question and made the trip from the station to the university campus in approximately twenty-four minutes. The defendant vehemently denied that he “arrested” or fondled the victim.

       The court denied both the defendant’s motion for a,judgment of acquittal and his motion for accelerated pretrial rehabilitation.

       To protect the privacy of the venireperson we refer to the individual by initial only. See State v. Beavers, 99 Conn. App. 183, 193 n.5, 912 A.2d 1105, cert. denied, 281 Conn. 925, 918 A.2d 276 (2007).

       Defense counsel argued in part: “I’ve never defended a same sex case; I’ve defended and prosecuted a number of male-female cases. People don’t presume that. That issue was not an issue in those kinds of cases. I wouldn’t have to go there in those kinds of cases. In this case, I do think and I—this is a different kind of case and they—whether or not—I think I do have to voir dire on it because if these people, when they get there, even though it’s not an element of the crime, are going to be thinking about those facts about the complaining witness, and they’re going to think—be thinking about it about my client. And so I do think I do have—have to go there to a certain degree. I—it’s a very difficult area for me to do. I’m very uncomfortable doing it, but I think in this case it’s very, very important.”

       In this case, the defendant claims that he was denied the state constitutional and statutory rights to conduct individual voir dire. In the situation in which an appellant claims that the court improperly prohibited the party from asking a particular question of a venireperson, we apply an abuse of discretion standard. In such a circumstance, “the question is not whether any one of us, had we been sitting as the trial judge, would have exercised our discretion differently. Our role as an appellate court is not to substitute our judgment for that of a trial court that has chosen one of many reasonable alternatives.” (Internal quotation marks omitted.) State v. Day, 233 Conn. 813, 842, 661 A.2d 539 (1995). The defendant in this case does not claim that the court abused its discretion.


source: Caselaw Access Project

author: McLACHLAN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. SOLOMAN R. BARNES
    (AC 29144)
    (AC 29145)
    Bishop, McLachlan and Beach, Js.
    Argued October 22, 2008
    officially released February 17, 2009

      John R. Williams, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Michael Dearington,
      state’s attorney, and Helen M. McLellan, senior assistant state’s attorney, for the appellee (state).
   Opinion

McLACHLAN, J.

The defendant, Soloman R. Barnes, was charged in part A of a two part information with possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-277 (a) and possession of a narcotic substance with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b) in connection with an incident that occurred on March 7, 2006 (March incident). In part B of the information, the defendant was charged with being a subsequent offender. In another case, the defendant was charged in part A of a two part information with two coimts of criminal possession of a firearm in violation of General Statutes § 53a-217 (a), and with theft of a firearm in violation of General Statutes § 53a-212 (a), possession with intent to use drug paraphernalia in violation of General Statutes § 2la-267 (a), possession with intent to use drug paraphernalia within 1500 feet of a school in violation of General Statutes § 2 la-267 (c), possession of an hallucinogenic substance with intent to sell in violation of General Statutes § 2 la-277 (a) and possession of an hallucinogenic substance with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b) following the execution of a search warrant on May 21,2006 (May incident). In part B of that information, the defendant was charged with being a subsequent offender and a persistent serious felony offender. The two informations were joined for trial pursuant to General Statutes § 54-57 and Practice Book § 41-19.

Following a jury trial, the defendant was convicted of all part A charges except theft of a firearm. After the verdicts were returned, the defendant entered pleas of nolo contendere to being a subsequent offender and a persistent serious felony offender for purposes of the part B charges in both informations. On August 21,2007, the court imposed a total effective term of twenty years imprisonment, execution suspended after ten years, with five years of probation. In appealing from the judgments, the defendant claims that (1) there was insufficient evidence to support his conviction of the charges in connection with the May incident, (2) the court improperly joined the two informations for trial and (3) the court improperly instructed the jury on consciousness of guilt. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. On March 2, 2006, Christopher Perrone, a detective with the New Haven police department, arrested Emmit Scott, a major participant in illegal drug activities in the Hill South section of New Haven. Perrone inquired as to whether Scott would be willing to provide to his unit at the statewide cooperative crime control task force information identifying other members of Scott’s group who were involved in the sale of narcotics or guns. In return, Perrone indicated that his unit would notify the state’s attorney that Scott had cooperated with its investigation. Scott agreed and made arrangements to have crack cocaine delivered to a specific address on Edgar Street in New Haven, which happened to be within 1500 feet of Roberto Clemente Middle School.

On March 7, 2006, Perrone transported Scott to an area close to the location at which the arranged delivery was to be made. Another officer, Detective Jose Silva, sat nearby in his parked vehicle to assist Perrone. Scott had been told to remove his baseball cap as a signal to the officers when the expected black Honda with tinted windows arrived to complete the transaction. Scott then exited Perrone’s vehicle and walked to the Edgar Street location. When the Honda appeared and parked near Scott, he removed his cap and fled on foot. Perrone alerted Silva, and the officers approached the Honda. The defendant was the driver of the Honda, and Jamaal Richardson was the only passenger. As Richardson exited the Honda, he dropped seven packets of crack cocaine in the gutter area next to the vehicle. When the defendant exited the Honda, Silva conducted apatdown search, and a clear plastic bag containing four individual bags of crack cocaine fell from the bottom of the defendant’s right pant leg. The defendant and Richardson were arrested.

On May 21, 2006, Richard Pelletier, a detective with the New Haven police department, along with several officers, executed a warrant authorizing their search of the first floor of 173 Thompson Street in New Haven for firearms, ammunition and proof of residence and additionally authorizing the search of the defendant’s person. The residence to be searched was located within 1500 feet of Lincoln Bassett Elementary School. After they arrived and announced: “Police with a search warrant,” they waited a reasonable amount of time and then forcibly opened the door when they received no response. Seeing no occupants, the officers secured the area.

Pelletier and Detective Justin Kasperzyk proceeded to search the rear bedroom and found men’s and women’s clothing in the closet and in the dresser. On the dresser, they located a Yale-New Haven Hospital identification badge with the defendant’s name and photograph, a Yale-New Haven Hospital pay stub bearing the defendant’s name, an open envelope with correspondence addressed to the defendant, a social security card in the name of Crystal Hinton and a Barnes and Noble earnings statement for Hinton. In one of the dresser drawers, containing undergarments for both a man and a woman, Kasperzyk found a box of bullets for a nine millimeter handgun. When Kasperzyk lifted the mattress on the bed, he discovered a Norinco nine millimeter handgun on one side of the box spring and a Beretta .22 caliber handgun on the opposite side of the box spring. In the closet of the bedroom, the officers located a large bag of a white substance commonly used as a cutting agent.

Members of the search team additionally located $550 in cash in an open spice rack in the kitchen. The freezer in the kitchen contained thirteen mini ziplock bags that tested positive for phencyclidine or PCP. A McCormick brand spice bottle and a small clear ziplock bag in the freezer likewise tested positive for PCP. In the dining room area off the kitchen, Kasperzyk found a blue nylon Yale-New Haven Hospital lunch bag in a built-in hutch. Inside the bag, there were numerous small empty glass jars, a digital scale, a playing card, a razor blade and packaging material consisting of six ziplock bags with multiple smaller ziplock bags inside. Residue on the scale tested positive for cocaine. After the search had been completed, the officers left a page of the search warrant with a man who identified himself as the defendant’s father.

On May 23, 2006, two days after the execution of the search warrant, Joe Dease, Jr., an officer with the New Haven police department, was patrolling the Newhail-ville section of New Haven in an unmarked vehicle at approximately 3 p.m. He noticed the defendant standing in a group of people and was aware that an arrest warrant had been issued for him. Dease radioed for assistance and a marked patrol cruiser came into view. At that point, Dease walked toward the defendant. Although Dease was in plain clothes, he had his state auto theft task force badge suspended from his neck. Dease’s vehicle was blocking the driveway of the house at which the defendant was found, and the patrol cruiser stopped behind that vehicle. The defendant made eye contact with Dease and sprinted away from him. Although the officers pursued the defendant, he was not apprehended at that time.

The defendant was charged in two separate informa-tions in connection with the March incident and the May incident. The state filed a motion to join the two informations for trial, and the defendant filed a motion to sever the charges. The court granted the state’s motion and denied the defendant’s motion at a hearing held on February 22, 2007. The trial commenced on February 28, 2007. After four days of evidence, the jury returned its verdicts. The court accepted the verdicts and rendered its judgments accordingly. These consolidated appeals followed.

I

The defendant first claims that there was insufficient evidence to support his conviction of the charges in connection with the May incident. Specifically, he argues that there was no evidence to establish a connection between him and the premises at which the handguns, controlled substances and drug paraphernalia were found at the time of the seizure. According to the defendant, he had vacated the premises in April, 2006, and had left behind a few items of personal property at Hinton’s residence. Because he no longer lived at 173 Thompson Street and the May incident charges were all possessory offenses, the defendant claims that there was no evidence to support the conclusion that he exercised dominion or control over the seized items.

We apply a two part test in reviewing sufficiency of the evidence claims. “First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt .... While . . . every element [must be] proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Citation omitted; internal quotation marks omitted.) State v. Rodriguez, 93 Conn. App. 739, 748-49, 890 A.2d 591 (2006), appeal dismissed, 281 Conn. 817, 917 A.2d 959 (2007).

“[T]he probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. ... It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) State v. Riser, 70 Conn. App. 543, 552, 800 A.2d 564 (2002).

“[T]o prove illegal possession of a narcotic substance, it is necessary to establish that the defendant knew the character of the substance, knew of its presence and exercised dominion and control over it. . . . Where . . . the [narcotics were] not found on the defendant’s person, the state must proceed on the theory of constructive possession, that is, possession without direct physical contact. . . . One factor that may be considered in determining whether a defendant is in constructive possession of narcotics is whether he is in possession of the premises where the narcotics are found. . . . Where the defendant is not in exclusive possession of the premises where the narcotics are found, it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference. . . . While mere presence is not enough to support an inference of dominion or control, where there are other pieces of evidence tying the defendant to dominion and control, the [finder of fact is] entitled to consider the fact of [the defendant’s] presence and to draw inferences from that presence and the other circumstances linking [the defendant] to the crime.” (Internal quotation marks omitted.) State v. Rodriguez, supra, 93 Conn. App. 749-50.

In the present case, the defendant claims that there was insufficient evidence to demonstrate that he shared possession of the first floor of 173 Thompson Street in New Haven with Hinton on May 21, 2006. Absent exclusive or joint possession of the premises, the defendant argues, the jury reasonably could not have concluded that he had constructive possession of the items seized in the May incident. We conclude that there was ample evidence to support a finding that the defendant shared the premises with Hinton at that time.

At trial, the jury heard testimony that the defendant’s mother owned the multifamily dwelling at 173 Thompson Street and leased the first floor to Hinton. There was testimony from Pelletier that he had checked with the department of motor vehicles (department) to confirm that the defendant’s address was the Thompson Street address on May 21,2006. Additionally, the branch manager of the department’s office in Hamden testified that the department’s records reflected that the defendant had reported his address as being 173 Thompson Street prior to May 30, 2006. On May 30, 2006, which was shortly after the execution of the search warrant, the manager indicated that the defendant reported a change in address.

Further, the defendant’s Yale-New Haven Hospital identification badge and his pay stub were on the dresser in the bedroom. A Yale-New Haven Hospital lunch bag was located in the kitchen area. The assistant record keeper at Yale-New Haven Hospital testified that the defendant had been employed by the hospital from July 9, 2001, through February 14, 2006. His last paycheck was issued on February 23, 2006. Although the search did not take place until May 21, 2006, there also was correspondence in the bedroom addressed to the defendant from the bureau of child support enforcement at the department of social services. The envelope containing that correspondence had been opened, and Hinton testified that she did not recognize the correspondence and did not open the defendant’s mail. The correspondence indicated an amount that the defendant owed in connection with child support orders as of May 13, 2006.

Additionally, Pelletier testified that the closet in the bedroom was relatively full of clothing worn by a man. He indicated that the closet also contained some clothing worn by a woman. Kasperzyk testified that he observed men’s pants, jackets, shirts and shoes in the closet and throughout the bedroom. He also observed women’s clothing in the bedroom. In the dresser, he located undergarments belonging to a man and to a woman. Pelletier testified that he did not find any evidence in the area searched that indicated there were individuals other than the defendant and Hinton residing at that location. Accordingly, even though Hinton testified that the defendant had moved from the premises in April and had left behind articles that he no longer wanted, the jury reasonably could have concluded from the evidence presented that he continued to share possession of the premises with her at the time of the search on May 21, 2006.

Because the evidence supported a claim of joint or shared possession, but not exclusive possession, the juiy reasonably could not have concluded that the defendant had constructively possessed the weapons, controlled substances and paraphernalia seized on May 21, 2006, namely, that he had known of their presence and had control over them, “unless there [were] other incriminating statements or circumstances tending to buttress such an inference.” (Internal quotation marks omitted.) State v. Rodriguez, supra, 93 Conn. App. 750. We conclude that there were other incriminating circumstances to support the jury’s verdict.

We first note that the defendant’s Yale-New Haven Hospital lunch bag, identification badge and pay stub were admitted as full exhibits without objection. Additionally, the two handguns, the large bag containing a white substance located in the bedroom closet, the bullets in the dresser drawer, the bags and bottle with material that tested positive for PCP and the contents of the lunch bag also were admitted without objection by the defendant.

From the exhibits and the testimony, the jury reasonably could have made the following inferences. The lunch bag belonged to the defendant because he had been employed by Yale-New Haven Hospital. The drug paraphernalia belonged to the defendant because it was found in his lunch bag. The cutting agent, used for packaging drugs, also belonged to the defendant because it was found in the bedroom closet containing his clothes and because Hinton testified that she did not own the white powder. The defendant had knowledge and control of the bullets in the dresser drawer because it contained his underwear. The defendant was aware of the two handguns located underneath his mattress because his clothes and other items of personal identification were found in the bedroom along with the bullets in the dresser drawer. Although the bullets were for the nine millimeter handgun, it was not unreasonable to conclude that he would have been aware of the presence of both fully loaded handguns that were located under the same mattress because the jury reasonably could have inferred that the defendant and Hinton shared the bed and the bedroom.

With respect to the PCP found in the freezer, we note that there were thirteen mini ziplock bags, a McCormick bottle and a small clear ziplock bag containing that controlled substance. This is not a situation in which a miniscule amount is secreted in a place hidden from view. The freezer was in the kitchen, a common area to both occupants of the residence. No evidence was found during the search that indicated that anyone other than the defendant and Hinton shared or had access to the premises. Moreover, the jury reasonably could have found that the mini ziplock bags in the defendant’s Yale-New Haven Hospital lunch bag were sufficiently similar in type and size to the mini ziplock bags containing the PCP to infer that the defendant was in possession and control of the PCP in the freezer. Under those circumstances, we agree with the statement of the court in United States v. Jenkins, 928 F.2d 1175, 1179 (D.C. Cir. 1991): “The natural inference is that those who live in a house know what is going on inside, particularly in the common areas.” Given the nature of the place where the PCP was found, including the quantity of the PCP and the manner in which it was packaged, it would defy logic and human experience to believe that the defendant, with a possessory interest in the premises, was unaware of its presence. See Goffinet v. Indiana, 775 N.E.2d 1227, 1229, 1232 (Ind. App. 2002) (marijuana in two bags in kitchen freezer constructively possessed by defendant, who was one of two occupants having access to freezer).

The fact that the defendant shared the premises with Hinton and that the same reasoning would apply to her as to the defendant, does not require a different conclusion. “[I]f the drugs are located in a common area accessible to a person other than the defendant, that fact alone does not prevent the defendant from being found in possession of the drugs.” State v. Williams, 110 Conn. App. 778, 789, 956 A.2d 1176, cert. denied, 289 Conn. 957, 961 A.2d 424 (2008). Constructive possession may be either sole or joint. See United States v. Alanis, 265 F.3d 576, 592 (7th Cir. 2001), cert. denied, 535 U.S. 1095, 122 S. Ct. 2289, 152 L. Ed. 2d 1049 (2002); United States v. Batista-Polanco, 927 F.2d 14, 19 (1st Cir. 1991); United States v. Holm, 836 F.2d 1119, 1124 (8th Cir. 1988).

Finally, we note that the defendant fled from the officers on May 23, 2006, two days after the execution of the search warrant. The defendant’s behavior at that time indicated a consciousness of guilt. The unexplained flight of a person accused of a crime is a circumstance, which, when considered together with all of the facts of the case, may justify an inference of the accused’s guilt. See State v. Fagan, 280 Conn. 69, 82, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007); State v. Davis, 84 Conn. App. 505, 512-13, 854 A.2d 67, cert. denied, 271 Conn. 922, 859 A.2d 581 (2004). On the basis of the cumulative effect of the evidence and the reasonable inferences drawn therefrom, we conclude that the jury reasonably could have found that the defendant was in constructive possession of the two handguns, the PCP and the drug paraphernalia seized at 173 Thompson Street in New Haven on May 21, 2006.

II

The defendant next claims that the two informations were joined improperly by the court and should have been tried separately. The defendant argues that the factual scenarios of the two cases were not easily distinguishable and that there was a prejudicial spillover effect that could not be cured by the court’s instructions to the jury. We disagree.

The principles that govern our review of a court’s ruling on a motion for joinder are well established. Practice Book § 41-19 provides: “The judicial authority may, upon its own motion or the motion of any party, order that two or more informations, whether against the same defendant or different defendants, be tried together.” General Statutes § 54-57 provides: “Whenever two or more cases are pending at the same time against the same party in the same court for offenses of the same character, counts for such offenses may be joined in one information unless the court orders otherwise.” “In deciding whether to sever informations joined for trial, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb. . . . The defendant bears a heavy burden of showing that the denial of severance resulted in substantial injustice, and that any resulting prejudice was beyond the curative power of the court’s instructions. . . .

“Substantial prejudice does not necessarily result from a denial of severance even [if the] evidence of one offense would not have been admissible at a separate trial involving the second offense. . . . Consolidation under such circumstances, however, may expose the defendant to potential prejudice for three reasons: First, when several charges have been made against the defendant, the jury may consider that a person charged with doing so many things is a bad [person] who must have done something, and may cumulate evidence against him .... Second, the jury may have used the evidence of one case to convict the defendant in another case even though that evidence would have been inadmissible at a separate trial. . . . [Third] joinder of cases that are factually similar but legally unconnected . . . presents] the . . . danger that a defendant will be subjected to the omnipresent risk . . . that although so much [of the evidence] as would be admissible upon any one of the charges might not [persuade the jury] of the accused’s guilt, the sum of it will convince them as to all. . . .

“Despite the existence of these risks, [our Supreme Court] consistently has recognized a clear presumption in favor of joinder and against severance . . . and, therefore, absent an abuse of discretion . . . will not second guess the considered judgment of the trial court as to the joinder or severance of two or more charges. . . .

“The court’s discretion regarding joinder, however, is not unlimited; rather, that discretion must be exercised in a manner consistent with the defendant’s right to a fair trial. Consequently, [our Supreme Court has] identified several factors that a trial court should consider in deciding whether a severance may be necessaiy to avoid undue prejudice resulting from consolidation of multiple charges for trial. These factors include: (1) whether the charges involve discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part; and (3) the duration and complexity of the trial. ... If any or all of these factors are present, a reviewing court must decide whether the trial court’s jury instructions cured any prejudice that might have occurred.” (Internal quotation marks omitted.) State v. Davis, 286 Conn. 17, 28-29, 942 A.2d 373 (2008). The three factors, often referred to as the Bosc-arino factors, were articulated in State v. Boscarino, 204 Conn. 714, 722-24, 529 A.2d 1260 (1987).

During the hearing on the state’s motion to join the two informations for trial and the defendant’s motion to sever the charges, the court made reference to the Boscarino factors. It concluded that the March incident and the May incident involved easily distinguishable factual scenarios, that neither of the incidents was brutal or shocking or violent in nature and that the matters were not so complex as to confuse the jury. For those reasons, the court granted the state’s motion for joinder and denied the defendant’s motion for severance. We conclude that the court did not abuse its discretion in joining and refusing to sever the two separate infor-mations.

First, the court correctly determined that the informa-tions in this case involved discrete, easily distinguishable factual scenarios. The crimes alleged in each information occurred on different dates at different locations. In the March incident, the defendant was in a motor vehicle with another individual when officers approached and discovered crack cocaine on his person. The defendant was arrested at that time. In the May incident, the defendant was not present at the residence when the officers executed the search warrant and seized handguns, PCP and drug paraphernalia.

At the time of trial, the court emphasized the distinctiveness and separateness of the two cases. Before the first witness was called, the court asked the prosecutor in the presence of the jury whether that witness was testifying as to the March incident. The prosecutor responded in the affirmative and proceeded to present the evidence relevant to each incident in chronological order. The first day of trial was devoted almost exclusively to the March incident. The second and third days of trial were devoted almost exclusively to the May incident. There were different witnesses who testified to each incident. Further, the court, the state and the defendant continually referred to the different dates of each incident during the examination of the witnesses, the closing arguments and the instructions to the jury. The typed jury instructions were a court exhibit, and the jury had that exhibit during its deliberations. Those instructions clearly separate the two incidents, summarizing the charges for the “First Information (March incident)” and the “Second Information (May incident)” Any remote possibility of confusion was eliminated by the jury instructions.

Second, the crimes charged were not brutal or violent so as to compromise the jury’s ability to maintain the distinction among them. The March incident involved the possession of crack cocaine. The May incident involved the possession of PCP and drug paraphernalia. This court has held that charges involving the sale of narcotics are not violent. See State v. Frazier, 39 Conn. App. 369, 376, 665 A.2d 142 (1995). It is true that the May incident also involved the possession of two handguns, but those guns were found in the defendant’s absence and were not pointed or fired at anyone. Accordingly, the conduct alleged in the two informa-tions was not brutal or shocking as contemplated by the second Boscarino factor.

Third, the trial was neither long in duration nor complex. The trial was completed in less than four days. The issues were simple and straightforward. The evidence adduced at trial was similarly uncomplicated. Further, as stated previously, the state presented the evidence in an orderly, chronological fashion. Thus, we do not believe that either the length of the trial or the nature of the evidence presented created a likelihood of jury confusion.

Finally, the court properly instructed the jury to consider separately the charges in the two informations. It emphasized that the two informations involved separate crimes on separate days, that the cases were totally unrelated and that they were being tried together for purposes of judicial economy. We conclude, therefore, that the defendant has failed to meet his heavy burden of demonstrating that the joinder of the charges in the two informations resulted in substantial injustice. State v. Davis, supra, 286 Conn. 28.

Ill

The defendant’s final claim is that the court improperly instructed the jury on consciousness of guilt. Specifically, the defendant argues that such an instruction was not warranted because the state presented no evidence that he was aware that the police were looking for him in connection with either the March incident or the May incident when he sprinted away from them on May 23, 2006.

“[T]he decision whether to give an instruction on flight, as well as the content of such an instruction, if given, should be left to the sound discretion of the trial court. . . . We review the defendant’s claim under this standard. . . .

“[Our Supreme Court] previously has stated that [f]light, when unexplained, tends to prove a consciousness of guilt .... Flight is a form of circumstantial evidence. Generally speaking, all that is required is that the evidence have relevance, and the fact that ambiguities or explanations may exist which tend to rebut an inference of guilt does not render evidence of flight inadmissible but simply constitutes a factor for the jury’s consideration. . . . [T]he fact that the evidence might support an innocent explanation as well as an inference of a consciousness of guilt does not make an instruction on flight erroneous.” (Internal quotation marks omitted.) State v. Scott, 270 Conn. 92, 104-105, 851 A.2d 291 (2004), cert. denied, 544 U.S. 987, 125 S. Ct. 1861, 161 L. Ed. 2d 746 (2005).

“[T]he propriety of an instruction regarding consciousness of guilt based upon flight goes to the question of the defendant’s state of mind. In other words, when a defendant has left . . . following a crime, the question is: why did he do so? This requires an assessment by the fact finder of the defendant’s motivations or reasons for leaving .... If there is a reasonable view of the evidence that would support an inference that he did so because he was guilty of the crime and wanted to evade apprehension—even for a short period of time—then the trial court is within its discretion in giving such an instruction because the fact finder would be warranted in drawing that inference.” (Internal quotation marks omitted.) State v. Cosby, 99 Conn. App. 164, 168, 913 A.2d 1068, cert. denied, 281 Conn. 920, 918 A.2d 273 (2007).

In the present case, there was evidence that a page of the search warrant had been left with the defendant’s father at the defendant’s residence at the conclusion of the search on May 21, 2006. Two days later, when an officer in plain clothes with his state auto theft task force badge suspended from his neck approached the defendant, the defendant sprinted away from the officer. The officer’s unmarked vehicle was blocking the driveway, and a patrol cruiser stopped behind that vehicle at the time the defendant fled from the scene. Further, the defendant made eye contact with the plain clothes officer immediately prior to his flight.

The defendant’s claim that the instruction was improper because the state did not prove that the defendant knew that the police were looking for him is not persuasive. “[T]he state is not required, as a matter of law, to establish that the defendant had actual knowledge that he was being charged with a criminal offense before introducing evidence of his flight. . . . The court properly [allowed] the state to present evidence of the defendant’s flight even if the state failed to introduce direct or inferential evidence that the defendant knew that he was wanted by the police.” (Internal quotation marks omitted.) State v. O’Neil, 67 Conn. App. 827, 833-34, 789 A.2d 531 (2002).

The admitted evidence was sufficient to support the consciousness of guilt instruction. The jury was free to draw any reasonable inference from the testimony concerning the events of May 23, 2006. The court’s charge sufficiently provided the jury with guidance to apply properly the facts to the law. We conclude, therefore, that the court did not abuse its discretion by instructing the jury on consciousness of guilt.

The judgments are affirmed.

In this opinion the other judges concurred.

       The defendant filed separate appeals from the judgments of conviction rendered in both cases. AC 29144 is the appeal from the judgment of conviction in connection with the May incident, and AC 29145 is the appeal from the judgment of conviction in connection with the March incident. By order issued December 5, 2007, this court consolidated the two appeals.

       “[I]t is apparent that [Practice Book § 41-19] intentionally broadened the circumstances under which two or more indictments or informations could be joined and that whether the offenses are of the same character is no longer essential . . . .” (Internal quotation marks omitted.) State v. Davis, 286 Conn. 17, 26 n.6, 942 A.2d 373 (2008).

       “[T]he jury [is] presumed to follow the court’s directions in the absence of a clear' indication to the contrary.” (Internal quotation marks omitted.) State v. Russell, 101 Conn. App. 298, 326, 922 A.2d 191, cert. denied, 284 Conn. 910, 931 A.2d 934 (2007).

       The court instructed the jury: “[The defendant] is accused of having committed offenses on two separate dates. One on March 7, 2006, and the other on May 21, 2006. These cases are totally unrelated to each other. And they are only being tried together for judicial economy. In your deliberations, you must consider these two informations separately and each count within the two informations separately. You may not use the evidence in one case to convict the defendant in the other case.
      “You may not-accumulate the evidence from both cases and on that basis convict the defendant of any offense. You may not assume that because the defendant is charged with committing offenses on two separate days that he must have done something wrong.”

       It is clear from a review of the jury instructions that the court’s charge on consciousness of guilt was applicable only to the May incident. See footnote 8.

       The defendant does not challenge the content or the accuracy of the court’s instruction. He claims, instead, that the evidence was insufficient to warrant such an instruction.

       The officer testified at trial and showed the badge to the jury.

       The court instructed the jury: “Consciousness of guilt (May incident). In a criminal trial, it is permissible for the state to show that conduct of the defendant after the time of the alleged offense may fairly have been influenced by the criminal act. That is, the conduct shows a consciousness of guilt. The conduct of the defendant in fleeing the scene—in fleeing the area of 206 Star Street on May 23, 2006, if you find that he did so, may be considered in determining his guilt since it may tend to prove a consciousness of guilt.
      “However, this conduct, if shown, is not conclusive of anything. The defendant’s conduct, if shown, does not raise any legal presumption of guilt. It is to be given the weight to which you, the jury, think it is entitled under the circumstances shown. It is up to you as the judges of the facts to decide whether the conduct of the defendant reflects a consciousness of guilt and consider such in your deliberations in conformity with these instructions.”


author: MCDONALD, J.

text:
    STATE OF CONNECTICUT v. NINA M.

    (AC 28908)
    Flynn, C. J., and Beach and McDonald, Js.

      Argued September 11, 2008
    officially released February 24, 2009

      Temmy Ann Pieszak, chief of habeas corpus services, with whom, on the brief, was James S. McKay, public defender, for the appellant (defendant).

      Timothy F. Costello, deputy assistant state’s attorney, with whom, on the brief, were Timothy J. Liston, state’s attorney, and Maureen Platt Temchin, senior assistant state’s attorney, for the appellee (state).

       In accordance with General Statutes § 54-86e, all information that could be used to identify the victim will be kept confidential.

   Opinion

MCDONALD, J.

The defendant, Nina M., appeals following the issuance of an order of no contact with the victim, imposed following her sentencing for crimes against that victim.

The following facts and procedural history are pertinent to our resolution of the defendant’s appeal. The defendant was charged with assault in the second degree in violation of General Statutes § 53a-60 (a) (2), risk of injury to a child in violation of General Statutes § 53-21 (a) (2) and sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A). On February 9,2007, the defendant pleaded guilty under the Alford doctrine to these charges, waived her right to a presentence investigation at that time and was sentenced that day. At sentencing, the prosecutor informed the court that at approximately 11 a.m. on July 25,2006, the police responded to a reported allegation of child abuse. The investigation revealed that the defendant’s neighbor had seen the victim, a six year old girl, with bruises on her face and body. The neighbor stated that the victim was being abused by her mother, the defendant, and the defendant’s live-in boyfriend. The responding officer went to the defendant’s residence, advised the defendant of the allegation and stated that he needed to see the victim. The officer observed bruising on the victim’s face. The defendant stated initially that the victim had slipped and hit her head while washing dishes. The officer then spoke with the victim, who appeared upset. The victim stated that the defendant’s boyfriend hit her. She also stated that the defendant hit her but that the defendant did not leave any bruises.

The police took the victim to a hospital and advised the defendant that the victim’s injuries were not consistent with the defendant’s story. At the hospital, a detective took pictures of the victim, which depicted bruising to the victim’s eyes, shoulder, back and buttocks. The police also interviewed the defendant while she waited at the hospital for her daughter. The defendant became upset when the police informed her that the victim had stated that the defendant’s boyfriend sexually and physically abused the victim. The defendant admitted that she, too, had hit the victim and spanked her with a plastic hanger. The police then told the defendant that they needed to know what had been put inside the victim. The defendant stated that she put her finger inside the victim three times in the past month. The defendant stated that she had done so because she thought it felt good to the victim. A physician’s examination of the victim was consistent with the defendant’s story, revealing hanger shaped bruises and internal vaginal trauma.

In accordance with the defendant’s plea agreement, the state recommended an effective sentence of eight years imprisonment, execution suspended after five years, and ten years probation. The state also recommended as conditions of probation that (1) the defendant have no contact with the victim, either in person, through a third person, by mail, by telephone or in any regard, (2) the defendant submit to any evaluation and treatment deemed appropriate by the office of adult probation and (3) the defendant register as a sex offender. After the court accepted the defendant’s plea and sentenced the defendant in accordance with the state’s recommendation, the state requested that the court issue an order prohibiting the defendant from having any contact with the victim while the defendant was incarcerated. The court granted the state’s request.

The defendant did not object to the court’s order of no contact at the time it was issued. The defendant on that same day, however, filed a motion to modify the order to allow a final contact upon the termination of the defendant’s parental rights and mail contact through the victim’s foster parents. The court denied this motion on May 1, 2007. On August 9, 2007, the defendant filed a motion pursuant to Practice Book § 43-22 to correct her sentence and to vacate the no contact order, which the court denied on August 14, 2007.

The defendant claims on appeal that the court’s order of no contact with the victim while the defendant was incarcerated was illegal because it was not part of the plea agreement. The defendant argues that her due process rights were violated when the court issued the no contact order after she had pleaded guilty and relinquished her constitutional right to a trial. At oral argument, the defendant stated that she seeks only to have the order of no contact set aside and otherwise does not seek to set aside the sentence imposed by the court.

We begin with the standard of review. Whether the defendant was deprived of her due process rights is a question of law to which we grant plenary review. See State v. Long, 268 Conn. 508, 520-21, 847 A.2d 862, cert. denied, 543 U.S. 969, 125 S. Ct. 424, 160 L. Ed. 2d 340 (2004)

Our analysis of the defendant’s claim hinges on whether the no contact order was part of or affected the defendant’s sentence. See generally State v. Alexander, 269 Conn. 107, 847 A.2d 970 (2004).

General Statutes § 53a-28 authorizes the sentences that a court may impose following a conviction of an offense. Section 53a-28 authorizes the following sentences: (1) imprisonment; (2) imprisonment with the execution of such sentence suspended, entirely or after a period set by the court; (3) a fine; (4) probation or conditional discharge; (5) unconditional discharge; (6) special parole; or (7) some combinations thereof. Black’s Law Dictionary (6th Ed. 1990) defines a sentence as “[t]he judgment formally pronounced by the court or judge upon the defendant after his conviction in a criminal prosecution, imposing the punishment to be inflicted, usually in the form of a fine, incarceration, or probation.”

Our Supreme Court has held that not every order issued by a court that restrains a defendant’s conduct is part of or affects the defendant’s sentence. State v. Alexander, supra, 269 Conn. 118-19. In Alexander, the court held that a criminal restraining order prohibiting contact with a victim that does not affect the defendant’s sentence does not deprive the defendant of her plea bargain notwithstanding that the court issued the order after the defendant relinquished the constitutional right to a trial by pleading guilty and the restraining order was not part of the plea bargain. Id. The court stated that a criminal restraining order issued after the defendant’s conviction did not impermissibly add punitive measures to the defendant’s sentence in violation of the defendant’s plea agreement. Id., 119-20. The court referred to the legislative history of General Statutes § 53a-40e authorizing such orders as showing that the puipose of a criminal restraining order was to protect victims of violent crimes and not to be punitive. State v. Alexander, supra, 116-18. The court concluded that the criminal restraining order in that case was not punitive in fact because restraining a defendant from contact with the victim served the purpose of protecting the victim and it imposed no additional fine or term of imprisonment. Id., 118.

We conclude that the order in this case is, in purpose and effect, like the criminal restraining order in Alexander. In this case, the court stated during the hearing on the motion to vacate the order that the purpose of the order is to protect the victim where the case involved sexual assault of a minor. The court stated that it has some obligation to protect the child victim who was “still under age . . . .” The court added that “one of the things that the court tries to do in cases such as that is protect the victim from any further harm or damage. ... I can’t imagine . . . any sort of physical harm. But the court also has to contemplate mental harm.”

In this case, by its terms, the no contact order does not affect the defendant’s probation after her incarceration and restrains the defendant only from contact with the victim and imposes no additional term of imprisonment, fine or other severe restraint on the defendant’s liberty. See id. We accordingly conclude that the order did not affect the defendant’s sentence, and, therefore, its issuance after the defendant’s plea agreement, plea and sentence did not violate the plea agreement. We hold, accordingly, that the order did not deprive the defendant of her rights to due process of law.

The defendant also argues that the order violated her due process rights because the order was not particularized to her, and the court lacked jurisdiction to issue such an order applicable to her while she was in the custody of the department of correction. We find no merit in these arguments.

The judgment is affirmed.

In this opinion the other judges concurred.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       We note that General Statutes § 53a-40e expressly authorizes such a criminal restraining order when a defendant is convicted of a violation of General Statutes § 53a-60, as was the defendant.

       The state in its brief conceded that the no contact order did not contain the language required by General Statutes § 53-40e (c) in criminal restraining orders that the order remain in effect until modified or revoked by the court for good cause and that it set forth the penalties for a violation of the order. The state suggested that we remand this case to add that language. The defendant in her reply brief argued that this is not reviewable and is not properly before us because of prejudicial lack of notice from the state. We adopt the defendant’s position and will not consider this suggestion.

       The defendant argues on appeal that at the sentencing hearing, the court’s failure to inquire on the record as to whether the victim, age six, wanted to be heard at sentencing violated General Statutes § 54-91c. Under the circumstances, we find this argument not relevant as to the validity of the order of no contact.