State v. Carlos C. , 165 Conn. App. 195 ( 2016 )

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STATE OF CONNECTICUT v. CARLOS C.*
(AC 36815)
Lavine, Sheldon and Mullins, Js.
Argued November 19, 2015—officially released May 3, 2016
(Appeal from Superior Court, judicial district of
Danbury, Pavia, J.)
Naomi T. Fetterman, with whom was Aaron J.
Romano, for the appellant (defendant).
Brett R. Aiello, special deputy assistant state’s attor-
ney, with whom, on the brief, were Stephen J. Sedensky
III, state’s attorney, and Sharmese L. Hodge, assistant
state’s attorney, for the appellee (state).
Opinion
MULLINS, J. The defendant, Carlos C., appeals from
the judgment of conviction, rendered after a trial to the
court, of one count of sexual assault in the first degree
in violation of General Statutes § 53a-70, and two counts
of risk of injury to a child, one pursuant to General
Statutes § 53a-21 (a) (1) and one pursuant to § 53a-21
(a) (2). On appeal, the defendant claims (1) that there
was insufficient evidence to support his conviction, and
(2) that the court violated his rights to a fair trial and
to confrontation when it permitted the guardian ad litem
to sit near the victim while the victim testified. We
affirm the judgment of the trial court.
The trial court was presented with the following evi-
dence during the defendant’s criminal trial. The victim
was born in 1996. In 2005, the victim’s mother met and
began dating the defendant. In 2006, the victim’s mother
moved into the defendant’s home along with the victim
and the victim’s younger brother. In 2007, the victim’s
mother married the defendant.
Initially, the victim got along well with the defendant,
but, after they moved into the defendant’s home, the
defendant began touching the victim inappropriately.
The defendant would rub her thighs or slap her but-
tocks, and, when the victim would protest, he would
offer her money and tell her not to say anything to
anyone. The victim began to notice that, although she
went to bed with clothing on, when she awoke in the
morning, she often was not wearing any clothing. She
soon realized that the defendant was entering her bed-
room in the early hours of the morning, after her mother
had left the home to deliver newspapers after 1 a.m.
Around this time, the defendant’s sexual assaults
escalated. He engaged in penile-vaginal intercourse
with the victim on several occasions, causing the victim
to experience pain, and to bleed on one occasion. Dur-
ing these assaults, the defendant removed his pants but
kept on his shirt. He also told the victim to be quiet,
and he threatened to throw her family out of his home
if she told anyone about his assaults.
At some point during the 2006–2007 school year, the
victim moved into the home of her father, while her
mother and her younger brother remained in the home
of the defendant. The defendant occasionally would
pick up the victim to bring her to his home to see her
mother. During these rides, he would inappropriately
touch the victim on her thighs and buttocks.
In 2012, the victim disclosed this abuse to her boy-
friend, who encouraged her to tell someone. On April
7, 2012, the victim disclosed the abuse to her father,
who immediately took her to the police station to file
a report. The defendant later was arrested and charged
with one count of sexual assault in the first degree and
The defendant elected to be tried by the court. Fol-
lowing the trial, the court found the victim to be credi-
ble, specifically stating: ‘‘[T]he court . . . heard the
testimony of the complainant . . . [who] was on the
stand for almost . . . a full . . . a complete day of
testimony. She testified . . . consistently throughout
the course of the day. She never wavered in her allega-
tions with regard to what happened. She handled cross-
examination and various questions that came at her,
again, without changing her story or her consistency.’’
The court also found that the victim ‘‘specifically
[had] alleged that there was sexual intercourse by way
of vaginal intercourse [that] took place. That there was
penetration in that the defendant penetrated by way of
his penis her vagina, that there was vaginal intercourse
beyond just the touching as part of the risk of injury
counts with regard to sexual intercourse [and the court]
want[ed] to make it clear that that evidence was abso-
lutely on the record and that [the] court credit[ed] her
account of the vaginal intercourse as she [had]
described it repeatedly throughout the course of her
day of testimony.’’ The court, thereafter, convicted the
defendant on all counts. This appeal followed.
I
The defendant claims that the evidence was insuffi-
cient to sustain his conviction because there was no
physical evidence introduced during the trial, and,
therefore, the only evidence to support the charges was
the testimony of the victim, who was inconsistent and
unreliable. He contends that ‘‘[w]here, as in this case,
the witness’ testimony is so discrepant, the court’s
determination of credibility was clearly erroneous.’’ The
state responds: ‘‘Because the defendant’s sufficiency of
the evidence claim hinges entirely on his challenge to
the express, unassailable credibility determination on
the part of the fact finder, his claim must fail.’’ We agree
with the state.
‘‘When reviewing a sufficiency of the evidence claim,
we do not attempt to weigh the credibility of the evi-
dence offered at trial, nor do we purport to substitute
our judgment for that of the [fact finder]. Instead, our
review consists of a two-step process in which we con-
strue the evidence presented at trial in a light most
favorable to sustaining the verdict . . . and then deter-
mine whether the [fact finder] could reasonably have
found, [on the basis of] the facts established and the
inferences reasonably drawn therefrom, that the cumu-
lative effect of the evidence established guilt beyond a
reasonable doubt.’’ (Internal quotation marks omitted.)
State v. Ortiz, 312 Conn. 551, 572, 93 A.3d 1128 (2014).
‘‘We assume that the [fact finder] credited the evi-
dence that supports the conviction if it could reasonably
have done so. Questions of whether to believe or to
disbelieve a competent witness are beyond our review.
As a reviewing court, we may not retry the case or pass
on the credibility of witnesses. . . . Our review of fac-
tual determinations is limited to whether those findings
are clearly erroneous. . . . We must defer to the trier
of fact’s assessment of the credibility of the witnesses
that is made on the basis of its firsthand observation
of their conduct, demeanor and attitude.’’ (Internal quo-
tation marks omitted.) State v. Osoria, 86 Conn. App.
507, 514–15, 861 A.2d 1207 (2004), cert. denied, 273
Conn. 910, 870 A.2d 1082 (2005).
On appeal, the defendant claims that the evidence
was insufficient to support his conviction because the
victim’s testimony was inconsistent and unreliable. We
conclude that this claim, for all practical purposes, does
not challenge the sufficiency of the evidence. Rather,
the defendant seeks to have us examine the credibility
of the victim, which we are unable to do. See State
v. Franklin, 115 Conn. App. 290, 292, 972 A.2d 741
(defendant’s claim ‘‘that the victim’s testimony was
inconsistent and unreliable . . . [not] actually a suffi-
ciency of the evidence claim . . . [because defendant]
asks this court to examine the credibility of a witness’’),
cert. denied, 293 Conn. 929, 980 A.2d 915 (2009); State
v. Michael G., 107 Conn. App. 562, 567, 945 A.2d 1062
(‘‘defendant’s claim, although clothed in sufficiency of
the evidence language, in reality challenges the credibil-
ity of M’s testimony,’’ which we, on appeal, are unable
to assess), cert. denied, 287 Conn. 924, 951 A.2d 574
(2008). ‘‘Because it is the sole province of the trier of
fact to assess the credibility of witnesses, it is not our
role to second-guess such credibility determinations.’’
State v. Franklin, supra, 292. Accordingly, the defen-
dant’s claim fails.
II
The defendant next claims that by allowing the guard-
ian ad litem to sit closer1 to the victim while the victim
testified, the court violated the defendant’s right to a
fair trial and his right to confrontation under both the
federal constitution and the state constitution, and dem-
onstrated personal bias. With respect to his due process
right to a fair trial claim, the defendant argues that the
trial court was not impartial. Specifically, he claims
that by permitting this special accommodation, without
requiring the state to demonstrate a compelling need
for it, ‘‘the complainant has been accorded the status
of a ‘child victim’ by the trial court,’’ despite the fact
the she was nearly eighteen years old when she testified
and did not fall within the chronological purview of
General Statutes § 54-86g.2 He claims that the court
validated the victim’s ‘‘alleged victimization’’ and
thereby ‘‘eviscerated [the defendant’s] presumption of
innocence.’’ The defendant further argues that the
court’s ‘‘consideration of [the complainant] as a ‘victim’
necessarily means that the trial court believed a crime
to have been committed, and that the defendant was
thereby guilty. . . . [The court’s] decision [is] devoid of
any evidence of compelling need and [is] representative
only of the court’s predetermination of the defen-
dant’s guilt.’’
With respect to his right to confrontation claim,
which the defendant included in his appellate brief as
part of his due process claim, the defendant contends
that the court permitted the guardian ad litem to act as
a ‘‘buffer to shield [the victim] from cross-examination,’’
thereby interfering with his right to confrontation.3
Given that the defendant is not claiming that he was
unable to have a face-to-face confrontation with the
victim—which he clearly had—we are at a loss to dis-
cern in what way the guardian ad litem acted as a
‘‘buffer to shield’’ the victim in violation of his right to
confrontation, and the defendant does not explain this
in his brief. As such, although he states that he also
is making a claim under the confrontation clause, we
review this claim under the same rubric as we review
his due process claim, namely, that the alleged constitu-
tional error here is that the court permitted this accom-
modation without requiring the state to show a
compelling need for the accommodation, demonstra-
ting the trial court’s bias and predetermination of the
defendant’s guilt.
The defendant contends that our standard of review
for his constitutional claims is one of ‘‘inherent preju-
dice’’ and that he need not prove actual harm. The state
argues that the court did not abuse its discretion in
permitting the guardian ad litem to sit near the victim
while the victim testified. It also argues: ‘‘Here, the
defendant’s claim that the trial court was partial and
incapable of divorcing [the victim’s] need for an accom-
modation from a determination that she was credible
is not only unreasonable, but it fails to find any support
in the record.’’
The following additional facts are relevant. During
direct examination, the prosecutor asked the victim to
explain what the defendant would do to her after he
removed her clothing. The victim broke down emotion-
ally and stated that the defendant ‘‘first . . . would
begin by touching’’ her. The prosecutor responded:
‘‘That’s okay, if it’s hard, just, you know, try to breathe,
take your time, okay . . . .’’ The victim then said she
was sorry. The prosecutor asked for a moment, and the
victim was given water and tissues. The court then took
a short recess.
Following the recess, at the request of the prosecutor
and over the objection of the defendant, the court per-
mitted the guardian ad litem to sit closer to the victim.
Specifically, the court ruled that the guardian ad litem
could sit closer to the victim ‘‘for whatever moral sup-
port that brings. But, obviously, no communication and
no kind of eye direction to testify in one way or the
other, okay, the testimony has to be just from this partic-
ular witness.’’4
After thoroughly considering the defendant’s brief
and his reply brief, along with his oral argument before
this court, it appears that the essence of the defendant’s
claim boils down to one of judicial bias, but in the form
of an alleged structural error in which harm is inherent
and need not be demonstrated. Essentially, the defen-
dant argues that, because the trial court permitted the
guardian ad litem to sit near the victim as an accommo-
dation for the victim, without requiring the state to
show a compelling need for the accommodation, the
court demonstrated that it had predetermined that the
complainant was a victim before the completion of evi-
dence. This, he contends, forced him to endure a trial
by a judge who was not impartial and who did not
presume his innocence. As a result, he contends, he
suffered inherent prejudice.5 We conclude that the
defendant’s claim is without merit, as he has failed to
demonstrate any lack of impartiality on the part of the
trial court.
A claim of judicial bias is a very serious matter. ‘‘Accu-
sations of judicial bias or misconduct implicate the
basic concepts of a fair trial. . . . It is a well settled
general rule [however] that courts will not review a
claim of judicial bias on appeal unless that claim was
properly presented to the trial court via a motion for
disqualification or a motion for mistrial.’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Eric M.,
79 Conn. App. 91, 102–103, 829 A.2d 439 (2003), aff’d,
271 Conn. 641, 858 A.2d 767 (2004). Nevertheless, our
Supreme Court has recognized that ‘‘a claim of judicial
bias strikes at the very core of judicial integrity and
tends to undermine public confidence in the established
judiciary. . . . No more elementary statement con-
cerning the judiciary can be made than that the conduct
of the trial judge must be characterized by the highest
degree of impartiality. If [the judge] departs from this
standard, he [or she] casts serious reflection upon the
system of which [the judge] is a part. . . . We review
this [unpreserved] claim [of partiality], therefore . . .
under a plain error standard of review.’’ (Citations omit-
ted; internal quotation marks omitted.) Knock v. Knock,
224 Conn. 776, 792–93, 621 A.2d 267 (1993).
‘‘In reviewing a claim of judicial bias, this court
employs a plain error standard of review. . . . The
standard to be employed is an objective one, not the
judge’s subjective view as to whether he or she can be
fair and impartial in hearing the case. . . . Any conduct
that would lead a reasonable [person] knowing all the
circumstances to the conclusion that the judge’s impar-
tiality might reasonably be questioned is a basis for
the judge’s disqualification.’’ (Citation omitted; internal
quotation marks omitted.) Statewide Grievance Com-
mittee v. Burton, 299 Conn. 405, 416, 10 A.3d 507 (2011).
‘‘The function of the court in a criminal trial is to
conduct a fair and impartial proceeding. . . . A trial
judge in a criminal case may take all steps reasonably
necessary for the orderly progress of the trial. . . .
When the rights of those other than the parties are
implicated, [t]he trial judge has the responsibility for
safeguarding both the rights of the accused and the
interests of the public in the administration of criminal
justice. . . . Moreover, [t]he [ability] of a witness [to
testify reliably] is a matter peculiarly within the discre-
tion of the trial court and its ruling will be disturbed
only in a clear case of abuse or of some error in law.’’
(Citations omitted; internal quotation marks omitted.)
State v. Torres, 60 Conn. App. 562, 569–70, 761 A.2d 766
(2000), cert. denied, 255 Conn. 925, 767 A.2d 100 (2001).
We have examined the record, including the tran-
script of what transpired at trial, and we conclude the
record is devoid of any manifestation of partiality or
bias on the part of the trial court. We also point out
that the defendant has failed to direct us to anything
in the record that would rebut our presumption of
impartiality other than his mere allegation that the
court’s allowance of this procedure demonstrated some
type of inherently prejudicial bias and partiality.6 See
State v. Rizzo, 303 Conn. 71, 119, 31 A.3d 1094 (2011)
(‘‘the law presumes that duly elected or appointed
judges, consistent with their oaths of office, will per-
form their duties impartially . . . and that they are able
to put aside personal impressions’’ [citation omitted]);
Stefanoni v. Darien Little League, Inc., 160 Conn. App.
457, 465, 124 A.3d 999 (2015) (same).
Indeed, it is clear from the record that the court was
careful to ensure that the defendant could see the victim
while she testified. The court also ensured that the
defendant had a full and fair opportunity to cross-exam-
ine the victim. Thus, when it permitted the guardian ad
litem to sit nearer to the victim while the victim testified,
overruling the objection of the defendant, the court
merely was attempting to make a minor witness more
comfortable as she resumed her testimony after having
broken down emotionally during her testimony before
the recess. There is no indication in this record that
the court predetermined the defendant’s guilt or that
the court in any way was not an impartial adjudicator.
Accordingly, the record disclosed no judicial bias and,
therefore, no structural error based on judicial bias.
Ultimately, ‘‘[t]he fact that a trial court rules adversely
to a [defendant], even if some of these rulings were to
be determined on appeal to have been erroneous, does
not demonstrate personal bias.’’ Bieluch v. Bieluch, 199
Conn. 550, 553, 509 A.2d 8 (1986). We conclude that
the defendant’s claim, therefore, is without merit.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to use the defendant’s full name or to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
1
The record indicates that the guardian ad litem already was sitting in
the jury box during the victim’s testimony. It is the accommodation, namely,
permitting the guardian ad litem to sit closer to the victim that is the subject
of this claim on appeal.
2
General Statutes § 54-86g (b) provides, in relevant part: ‘‘In any criminal
prosecution of an offense involving assault, sexual assault or abuse of a
child twelve years of age or younger, the court may, upon motion of the
attorney for any party, order that the following procedures be used when
the testimony of the child is taken . . . (2) an adult who is known to the
child and with whom the child feels comfortable shall be permitted to sit
in close proximity to the child during the child’s testimony, provided such
person shall not obscure the child from the view of the defendant or the
trier of fact . . . .’’
3
The defendant has not contended that the guardian ad litem actually
blocked his sight of the victim or in any way interfered with the court’s
ability to see her. Thus, this is not a case in which the defendant’s right to
face-to-face confrontation has been infringed or a case in which the court,
as the fact finder, did not have an adequate opportunity to assess the credibil-
ity of the witness. In fact, the transcript demonstrates that the court took
great pains to ensure that the defendant could see the victim while she
testified. See footnote 4 of this opinion.
Additionally, insofar as the defendant’s argument may also be read to
contend that his right to confrontation was infringed because the guardian
ad litem asked for a recess during the defendant’s cross-examination of the
victim, we note that the defendant did not voice any objection to the request,
and the record does not disclose why the court took a recess at that time.
Furthermore, following the recess, the defendant had an opportunity to
continue his cross-examination of the victim. At no point did he claim that
his cross-examination was hampered in any way by the guardian ad litem’s
request for a recess. Accordingly, we decline to review this aspect of the
defendant’s argument. See State v. Combs, 51 Conn. App. 700, 701–702, 725
A.2d 349 (1999) (‘‘Our role is not to guess at possibilities, but to review
claims based on a complete factual record developed by a trial court. . . .
Without the necessary factual and legal conclusions furnished by the trial
court . . . any decision made by us respecting [the defendant’s claims]
would be entirely speculative.’’ [Internal quotation marks omitted.]); see
also State v. Torres, 60 Conn. App. 562, 571, 761 A.2d 766 (2000) (claim that
trial judge improperly permitted victim to sit back in witness chair, out of
view of defendant, not reviewable because record inadequate and review
would require speculation), cert. denied, 255 Conn. 925, 767 A.2d 100 (2001).
We also note that due to a malfunction in the recording equipment on
January 29, 2014, a portion of the victim’s cross-examination, which included
the time frame when the guardian ad litem asked for a recess, was not
recorded. The parties, on February 20, 2014, stipulated to a reconstruction
of that portion of the transcript, which was comprised of the notes of the
court reporter and the recollection of counsel. Although the defendant quotes
some of the relevant portions of that transcript in his brief, he has not
included it in his appendix. The state has provided in its appendix, the
portion of the reconstructed transcript that contains the request for a recess
by the guardian ad litem. The stipulated reconstructed transcript has also
been provided as a court exhibit.
4
Following the recess, the following colloquy occurred:
‘‘[The Prosecutor]: Your Honor . . . if I could just ask permission to have
the guardian ad litem was sitting in the jury box if she could just be seated
a little closer to the witness? And I understand she’s not allowed to speak
with her at all, but just for support purposes.
‘‘[Defense Counsel]: Um—
‘‘The Court: Any issue?
‘‘[Defense Counsel]: Yeah, Your Honor . . . I object to that. I mean, this
is the time for her, she’s—she’s charged my client and making some claims.
I don’t think it’s appropriate for the guardian ad litem to sit there. I mean,
this young lady is seventeen years old, about to be eighteen. She’s almost
an adult. I think she could sit there on her own.
‘‘The Court: All right. I will say this. I think that we can, certainly, have
the guardian [ad litem] at some point that may be a little more accessible,
but agreed, she can’t have any discussion.
‘‘So, instead of having her, like, right next to, we could have her . . . up
over here. We’ll just move the chair there, and for whatever moral support
that brings. But, obviously, no communication and no kind of eye direction
to testify in one way or the other, okay, the testimony has to be just from
this particular witness.
‘‘[Defense Counsel]: And, Your Honor, I’m going to ask if the . . . witness
could move over to the side, I mean, we’re having a hard time seeing her.
‘‘[The Prosecutor]: I don’t think visual aids are necessary.
‘‘The Court: All right. So, we need to be able to, obviously, if you want
to move and go to a different location, I’m not going to force her to sit in
some particular spot. You know, you’re wel—you have access to this whole
room, and, if you would rather go stand over there (indicating), feel free
to do so . . . .
‘‘[Defense Counsel]: It’s more the defendant, Your Honor, he can’t see
her from where he is sitting.
‘‘[The Prosecutor]: Well, that’s his—
‘‘The Court: Well, not—not really, because we, kind of, have to deal with
the—the way that the courtroom is structured. Um, all right. So, I’m going
to do this, maybe, the state can assist me and just—I can’t, obviously, see
exactly where it is, but I can tell that it’s more toward me—
‘‘[The Prosecutor]: Your Honor, if I—
‘‘The Court: (Continuing) —maybe, we could just get a more—
‘‘[The Prosecutor]: I’m happy to represent [to] the court that from this
angle, standing directly behind the defendant, I have a clear and perfect
view of all parties—
‘‘[Defense Counsel]: Counsel’s standing—
‘‘[The Prosecutor]: (Continuing) —forward.
‘‘[Defense Counsel]: (Continuing) —he’s sitting.
‘‘[The Prosecutor]: Okay. I have a clear view.
‘‘[Defense Counsel]: Just why don’t you—
‘‘The Court: Look—Look, we’re going to do—we’re not going to do objec-
tions to every little thing, right. So, here we go; if you feel and you’re, as
an officer of the court, are representing to me that you’re having difficulty
seeing this particular witness, I’m—I’m going to accommodate that, but,
we’re going to also make it so that she can testify here.
‘‘So, to the extent that you are able to just, kind of, move over, so you’re
more in the center, I would appreciate that and I know that you are speaking
into that mic and everybody is saying that they can hear you, so I appreciate
that as well.
‘‘[The Victim]: Um—
‘‘The Court: All right. You take your time.
‘‘[The Victim]: Can you move the trash can here, so I could—
‘‘[The Prosecutor]: Yes.
‘‘[The Victim]: Thank you.
‘‘[The Prosecutor]: You’re welcome. Sorry, Your Honor.’’
Thereafter, the prosecutor resumed questioning the victim.
5
We are not necessarily persuaded that this is the type of claim wherein
a structural error could be established. Indeed, a claim of judicial bias that
constitutes structural error normally involves some extrinsic factor, not
occurring in the courtroom, that would implicate a defendant’s due process
rights, such as bias based on a direct, personal, substantial pecuniary inter-
est. See Tumey v. Ohio, 273 U.S. 510, 521–23, 47 S. Ct. 437, 71 L. Ed. 749 (1927)
(violation of due process where court invalidated and found inherently
prejudicial procedure wherein mayor of village, who was responsible for
assessing fines against defendants convicted of violating state’s prohibition
act, received costs, in addition to regular salary, as compensation for hearing
such cases, but no costs were paid to mayor unless defendant was con-
victed); State v. Rizzo, 303 Conn. 71, 116, 31 A.3d 1094 (2011) (‘‘United
States Supreme Court has found judicial bias claims to be due process
violations only in egregious cases involving actual bias or unusual circum-
stances creating an intolerably high risk thereof, typically, when the judge
had a pecuniary interest or some other personal stake in the outcome of
the case’’).
In the present case, the defendant does not allege that any extrinsic factor
affected the impartiality of the court. Rather, he claims that the procedure
the court allowed reflected its bias. At common law, claims concerning a
judge’s personal bias or prejudice would not form a sufficient basis for
imposing a constitutional requirement under the due process clause, how-
ever, and, thus, such personal bias or prejudice could not amount to struc-
tural error. See Caperton v. A. T. Massey Coal Co., 556 U.S. 868, 877, 129
S. Ct. 2252, 173 L. Ed. 2d 1208 (2009) (under common law, disqualification
for bias or prejudice not permitted as those matters left to statutes and
judicial codes; accordingly, personal bias or prejudice alone not sufficient
basis for imposing due process requirement).
Nevertheless, there are some circumstances where a judge’s personal bias
or prejudice could rise to the level of structural error. Id., 877–79 (concluding
that in addition to cases demonstrating personal financial interest of judge,
structural error also may be found where newly elected appellate judge
participates in appeal that was pending during his campaign and where
judge’s campaign had received financing from party prevailing in appeal).
In the present case, however, as explained later in this opinion, the defendant
has failed to establish that the court expressed or demonstrated any type
of personal bias; accordingly, we have no occasion to address whether any
personal bias amounted to structural error.
6
We also note that the defendant, during trial, neither requested that
the judge disqualify herself nor told the judge that he thought she was
demonstrating partiality. Additionally, the defendant did not file a motion
for new trial or for a mistrial on the basis of judicial bias. The defendant
failed to raise any claim before the trial court that the judge’s action in
permitting the guardian ad litem to sit in closer proximity to the victim during
the victim’s testimony in any way infringed on his right to confrontation or
to a fair trial.