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State v. Samuel U. ( 2023 )


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    STATE v. SAMUEL U.—CONCURRENCE
    ECKER, J., with whom McDONALD, J., joins, concur-
    ring. I agree with the majority that there was no consti-
    tutional violation in the present case and that the defen-
    dant, Samuel U., therefore cannot prevail on his unpre-
    served claim that the state’s notice of intent to admit
    evidence of uncharged sexual misconduct was inade-
    quate under State v. Golding, 
    213 Conn. 233
    , 239–40,
    
    567 A.2d 823
     (1989), as modified by In re Yasiel R., 
    317 Conn. 773
    , 781, 
    120 A.3d 1188
     (2015). I further agree that
    the trial court did not abuse its discretion in admitting
    evidence of the defendant’s prior sexual abuse of his
    daughter, S, to establish that he had a propensity to
    commit the type of crimes with which he was charged.
    I write separately, however, to highlight the grave dan-
    gers posed by the admission of evidence of uncharged
    sexual misconduct and the concomitant obligation of
    the state to provide timely, accurate and specific notice
    of such evidence so that the defendant has a full and
    fair opportunity to prepare a defense. I encourage the
    appropriate rule-making committee, whether that be
    the Code of Evidence Oversight Committee or the Rules
    Committee of the Superior Court, to consider proposing
    the adoption of a rule governing the timing and content
    of the state’s notice of disclosure.
    Pursuant to our case law and the Connecticut Code
    of Evidence, evidence of prior uncharged sexual mis-
    conduct ‘‘is admissible in a criminal case to establish
    that the defendant had a tendency or a propensity to
    engage in aberrant and compulsive sexual misconduct’’
    if certain requirements are met. Conn. Code Evid. § 4-
    5 (b); see, e.g., State v. DeJesus, 
    288 Conn. 418
    , 473,
    
    953 A.2d 45
     (2008). I do not doubt that evidence of prior
    bad acts may be highly probative of the defendant’s
    guilt. But that is precisely the problem—the incriminat-
    ing impact of the defendant’s past transgressions can
    impair the fact finder’s ability to determine whether
    the evidence demonstrates, beyond a reasonable doubt,
    that the defendant committed the crime with which he
    is charged in this case. See, e.g., State v. Antonaras,
    
    137 Conn. App. 703
    , 722, 
    49 A.3d 783
     (recognizing that
    ‘‘evidence of child sex abuse is undoubtedly harmful
    to [a] defendant’’), cert. denied, 
    307 Conn. 936
    , 
    56 A.3d 716
     (2012). It is no overstatement to say that evidence
    of prior uncharged misconduct is ‘‘the most prejudicial
    evidence imaginable against an accused.’’ (Internal quo-
    tation marks omitted.) State v. McCarthy, 
    156 Vt. 148
    ,
    155, 
    589 A.2d 869
     (1991). This evidence consequently ‘‘can
    have a devastating effect on the defense.’’ E. Imwinkel-
    ried, ‘‘The Worst Surprise of All: No Right to Pretrial
    Discovery of the Prosecution’s Uncharged Misconduct
    Evidence,’’ 
    56 Fordham L. Rev. 247
    , 249 (1987); see
    United States v. Daniels, 
    770 F.2d 1111
    , 1116 (D.C.
    Cir. 1985) (exclusion of propensity evidence typically
    is ‘‘founded not on a belief that the evidence is irrele-
    vant, but rather on a fear that juries will tend to give
    it excessive weight, and on a fundamental sense that
    no one should be convicted of a crime based on his or
    her previous misdeeds’’); State v. Skillicorn, 
    367 Or. 464
    , 478, 
    479 P.3d 254
     (2021) (propensity evidence carries
    ‘‘the risk of unfair prejudice to the accused’’ because,
    ‘‘[a]mong other [reasons], propensity evidence can
    cause [fact finders] to convict for crimes other than
    those charged or [to] give more weight to the evidence
    than it deserves in assessing . . . guilt of [the] crime
    charged’’ (internal quotation marks omitted)). Indeed,
    empirical evidence suggests that the admission of
    uncharged misconduct evidence ‘‘significantly increases
    the likelihood of a finding of guilt’’ and can ‘‘effectively
    [strip] the defendant of the presumption of innocence.’’
    E. Imwinkelried, supra, 249.
    Because of the devastating impact that uncharged
    misconduct evidence can have on the defense, proce-
    dural safeguards must be employed to ensure that the
    risk of prejudice is reduced to the greatest extent possi-
    ble. Timely and adequate notice to the defendant is one
    critical component of this protection. To minimize the
    risk of prejudice to the defendant, the federal courts
    require the government to ‘‘(A) provide reasonable
    notice of any such evidence that the prosecutor intends
    to offer at trial, so that the defendant has a fair opportu-
    nity to meet it; (B) articulate in the notice the permitted
    purpose for which the prosecutor intends to offer the
    evidence and the reasoning that supports the purpose;
    and (C) do so in writing before trial . . . .’’ Fed. R.
    Evid. 404 (b) (3). In sexual assault or child molestation
    cases, the federal rules are even more stringent. To
    admit evidence of uncharged sexual misconduct in
    these types of cases, the government ‘‘must disclose it
    to the defendant, including witnesses’ statements or a
    summary of the expected testimony . . . at least [fif-
    teen] days before trial . . . .’’ Fed. R. Evid. 413 (b);
    accord Fed. R. Evid. 414 (b).
    Consistent with the federal rules, many of our sister
    states have enacted rules or statutes requiring the state
    to provide the defendant with pretrial notice of its intent
    to admit evidence of uncharged misconduct. Some
    states have patterned their notice requirements on the
    Federal Rules of Evidence. See, e.g., 
    Neb. Rev. Stat. § 27-414
     (2) (2016); 
    S.D. Codified Laws § 19-19-404
     (b)
    (3) (West 2023); Ala. R. Evid. 404 (b) (3); Colo. R. Evid.
    404 (b) (3); N.M. R. Evid. 11-404 (B) (3); N.D. R. Evid.
    404 (b) (2) (LexisNexis 2018); Ohio R. Evid. 404 (B)
    (West Supp. 2021); Pa. R. Evid. 404 (b) (3). Other states
    have promulgated their own unique pretrial notice
    requirements. For example, in Florida, ‘‘[w]hen the state
    in a criminal action intends to offer evidence of other
    criminal offenses . . . no fewer than 10 days before
    trial, the state shall furnish to the defendant or to the
    defendant’s counsel a written statement of the acts or
    offenses it intends to offer, describing them with the
    particularity required of an indictment or information.’’
    
    Fla. Stat. Ann. § 90.404
     (2) (d) (1) (West Cum. Supp.
    2021). In Illinois, ‘‘[i]n a criminal case in which the
    prosecution intends to offer evidence [of uncharged
    misconduct], it must disclose the evidence, including
    statements of witnesses or a summary of the substance
    of any testimony, at a reasonable time in advance of
    trial . . . .’’ 725 Ill. Comp. Stat. Ann. 5/115-7.3 (d) (West
    Cum. Supp. 2020); accord Ill. R. Evid. 404 (c); see also
    Ariz. R. Evid. 404 (b) (3) (A) and (B) (West 2022) (requir-
    ing state to ‘‘make disclosure to the defendant as to
    such acts [of uncharged misconduct] . . . no later than
    45 days before the final trial setting’’ and to ‘‘articulate
    in the disclosure the permitted purpose for which the
    state intends to offer the evidence and the reasoning
    that supports the purpose’’); 
    Cal. Evid. Code § 1108
     (b)
    (Deering Supp. 2021) (requiring state to ‘‘disclose the
    evidence to the defendant, including statements of wit-
    nesses or a summary of the substance of any testimony
    that is expected to be offered’’).
    Pretrial notice of evidence of uncharged misconduct
    that includes a particularized description of the witness’
    anticipated testimony or the details of the alleged crimes
    serves the important purpose of avoiding undue ‘‘sur-
    prise’’ and ‘‘trial by ambush.’’ E. Imwinkelried, supra, 
    56 Fordham L. Rev. 258
    . By providing the defense with
    advance notice of the uncharged misconduct evidence
    that the state seeks to admit, the defendant is given the
    opportunity to investigate the accuracy of the evidence,
    test its reliability, and produce witnesses to contradict,
    challenge, or rebut the evidence. See 
    id.,
     258–59. Timely
    and adequate notice, in short, ‘‘give[s] the defendant
    an opportunity to meet the prosecution’s case’’ and to
    mount an effective defense.1 Id., 259.
    For these reasons, I strongly encourage the adoption
    of a standardized rule governing the timing and content
    of the state’s notice of disclosure of intent to admit
    evidence of uncharged misconduct at trial.
    1
    These concerns are not merely hypothetical. Although the defendant’s
    claim of deficient notice is not one of constitutional magnitude under the
    second prong of Golding, the state’s notice of intent to introduce evidence
    of uncharged misconduct in the present case left much to be desired. The
    notice did not identify the name of the witness (S), summarize her anticipated
    trial testimony, or accurately describe the acts of uncharged sexual miscon-
    duct to which she ultimately testified at trial. I agree with the majority that
    these deficiencies did not render the testimony of S inadmissible under
    existing law, but I believe that they illustrate the need for a rule governing
    the adequacy of the notice that the state must provide.
    

Document Info

Docket Number: SC20740

Filed Date: 11/28/2023

Precedential Status: Precedential

Modified Date: 11/28/2023