State v. Davalloo ( 2014 )

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STATE OF CONNECTICUT v. SHEILA DAVALLOO
(AC 36405)
Beach, Sheldon and Borden, Js.
Argued May 27—officially released October 7, 2014
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Comerford, J.)
Mark Rademacher, assistant public defender, for the
appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were David I. Cohen, state’s attor-
ney, James M. Bernardi, supervisory assistant state’s
attorney, and Maureen Ornousky, senior assistant
state’s attorney, for the appellee (state).
Opinion
BEACH, J. The defendant, Sheila Davalloo, appeals
from the judgment of conviction, rendered after a jury
trial, of murder in violation of General Statutes § 53a-
54a. The defendant claims that (1) in violation of the
marital communications privilege, the court improperly
permitted Paul Christos, her husband at the time of the
events in question, to testify as to conversations she
had had with him, (2) the court improperly permitted
the state to present evidence of uncharged misconduct,
and (3) the court improperly found that she validly
waived her right to trial counsel. We disagree and affirm
the judgment of the trial court.
The following facts, as reasonably could have been
found by the jury, and procedural history are relevant.
This case involves a love triangle between the defendant
and two of her coworkers at Purdue Pharma, a pharma-
ceutical company in Stamford. The defendant became
obsessed with Nelson Sessler, one of her coworkers.
The victim was Anna Lisa Raymundo, the second
coworker, who ultimately lived with and became the
girlfriend of Sessler. In late 2000, Sessler met Raymundo
at an after-work happy hour that other coworkers also
attended. In the summer of 2001, the defendant met
Sessler for the first time at another after-work happy
hour. Although the defendant was married to Christos
at the time, she told Sessler that she was divorced.1 At
some point, Sessler began sexual relationships with
both the defendant and Raymundo.
During the tenure of the defendant’s relationship with
Sessler, the two met periodically at the condominium
unit in Pleasantville, New York, where the defendant
lived with Christos. Before Sessler would meet the
defendant at the Pleasantville condominium unit, the
defendant would tell Christos that her mentally ill
brother was coming to visit and Christos had to leave
the house and take his personal belongings with him.
The defendant told Christos that her brother might react
badly if he discovered that she was married. Christos
believed this story at first. He knew from the defendant’s
parents that the defendant, in fact, had a mentally ill
brother. According to Sessler, he and the defendant did
not see each other often because the defendant was
‘‘busy’’ with other obligations and interests, including
volleyball and taking care of her mentally ill brother.
By the summer of 2002, Sessler’s attentions focused
on Raymundo and he suspended his sexual relationship
with the defendant. According to Sessler, the defendant
‘‘seemed okay’’ with their relationship just being a ‘‘sum-
mer fling . . . .’’ Raymundo became Sessler’s girlfriend
and, although he continued to maintain his separate
apartment in Stamford, he spent ‘‘the majority of [his]
time’’ at Raymundo’s apartment, located at 123 Harbor
Drive, apartment 105, in Stamford. The defendant was
aware that Sessler was living with Raymundo. Sessler’s
relationship with Raymundo continued after Raymundo
left Purdue Pharma in 2002 and began a new job at
another pharmaceutical company, Pharmacia, in New
Jersey. Despite working in New Jersey, Raymundo con-
tinued to live at her apartment in Stamford.
In 2002, the defendant concocted an imaginary story
about a love triangle among three fictional ‘‘coworkers’’
at Purdue Pharma: ‘‘Melissa,’’ ‘‘Jack,’’ and ‘‘Anna Lisa.’’
The defendant related the ongoing saga, which she pre-
sented as true, from the perspective of her ‘‘friend’’
Melissa, who supposedly was confiding in the defen-
dant. The defendant said that Melissa, who was in a
relationship with Jack, was sad and depressed because
Jack was also in a relationship with another woman,
Anna Lisa. ‘‘Melissa,’’ quite clearly in retrospect, was
the defendant. ‘‘Jack’’ was Sessler, and ‘‘Anna Lisa’’
was Raymundo.
The defendant related information to Christos about
the love triangle nearly every day. She included intimate
details about Melissa and Jack. She told Christos that
Melissa was upset when Jack rebuffed her sexual
advances. She once said that Melissa had discovered
Jack’s travel plans and had flown to Jack’s destination.
She then ‘‘conveniently’’ ran into him at the airport as
he was boarding a plane home and sat next to him
on the return flight.2 The defendant constantly asked
Christos for advice ‘‘on behalf’’ of Melissa with ques-
tions such as why Jack was in a relationship with two
women and why Jack was cheating on one woman with
the other. Christos listened to these stories to ‘‘humor’’
the defendant.
Eventually, the defendant told Christos that she
‘‘wanted to go on a stakeout’’ with Melissa in order to
‘‘spy on Jack.’’ Although Christos thought the proposed
surveillance was ‘‘a little odd,’’ he did not believe it
would actually occur; he gave the defendant a pair of
night vision binoculars. The defendant told Christos
that she had purchased a lock pick set for Melissa
because Melissa wanted to break into Anna Lisa’s apart-
ment to look at photographs in order to ‘‘get a sense
of the relationship between Jack and Anna Lisa.’’ The
defendant practiced with the lock pick set on the front
door of their Pleasantville condominium unit. The
defendant also asked Christos for an eavesdropping
device that she knew he owned in order to assist Melissa
in planting the device in Jack’s office so they could
listen in on his conversations. Early one morning, the
defendant telephoned Christos to inform him that she
and Melissa were outside Anna Lisa’s apartment and
asked Christos if Melissa should confront Anna Lisa.
Christos told the defendant that Anna Lisa had a ‘‘right
to know her boyfriend is cheating on her . . . .’’ In
time, Christos became ‘‘sick’’ of the stories of the love
triangle and ‘‘kind of got angry’’ with the defendant.’’
The defendant also related the story of the love trian-
gle to Emilio Mei and Tammy Mei, friends of the defen-
dant and Christos, to Christos’ parents and to ‘‘one or
two other friends as well.’’ The defendant told Tammy
Mei about Melissa ‘‘[a]lmost every time [they] spoke’’
and would ask her questions such as whether she
thought Jack would break up with Anna Lisa and date
Melissa. The defendant told Tammy Mei that Melissa
had access to Jack’s voice mail and would listen to it
on a daily basis to see if he was still seeing Anna Lisa
or any other woman. She also told Tammy Mei that
Jack ‘‘tried to set Melissa up with one of his friends,’’
but that it did not go well because ‘‘Melissa just wanted
to be with Jack.’’3 The defendant ‘‘quite a few times’’
asked Tammy Mei if Melissa should confront Anna Lisa
to ‘‘let her know that she [Melissa] was also seeing
Jack.’’ Tammy Mei advised against this confrontation,
but sensed that the defendant wanted her to say that
Melissa should confront Anna Lisa.
A few minutes after noon on November 8, 2002, the
Stamford Police Department received a 911 call in
which the caller reported that a man was assaulting
someone at 123 Harborview, apartment 105; the caller
claimed to be a neighbor.4 The dispatcher knew that
Harborview was a commercial area without apartments
and knew the given address had to be incorrect. After
the caller ended the call, the dispatcher called back the
number and discovered that the call had come from a
pay phone at a Dutchess restaurant on Shippan Avenue
in Stamford. The dispatcher telephoned the Dutchess
restaurant and spoke to a manager, who had not noticed
anyone at the pay phone. The dispatcher sent officers
to 123 Harbor Drive, apartment 105, which she knew
was a residential facility near the Dutchess restaurant.
An officer knocked on the door of apartment 105 and
received no answer. He pushed the door open and saw
the deceased victim, Raymundo, on the floor of the
front foyer. The officers saw no signs of forced entry,
burglary, or ransacking. The victim had died from multi-
ple stab wounds and her injuries indicated a violent
struggle.
In the course of investigation, officers found details
whose relevance later became apparent. At 11:57 a.m.,
the victim’s home telephone had been used to place a
call to Sessler’s office; Sessler had not answered the
call and no voice message had been left. Officers discov-
ered a bloodstain on the handle of a bathroom sink,
which suggested that the assailant had tried to clean
up after the crime. The bloodstain much later was deter-
mined to contain ‘‘all of the different genetic elements
that [were] present’’ in the DNA profiles of both the
defendant and the victim. The state’s expert testified
that due to the fact that the victim cleaned her apart-
ment regularly, as testified to by Sessler and the victim’s
parents, and the fact that the sink handle was nonpo-
rous, it was ‘‘extremely, extraordinarily unlikely’’ that
any DNA left by the defendant on the sink handle prior
to November 8, 2002, would have lasted or remained
‘‘very long . . . .’’
When Sessler returned after work to the victim’s
apartment, where he frequently stayed, police officers
questioned him. Sessler gave officers the names of two
other women he dated who suffered from mental ill-
nesses. He did not at that time tell police officers about
his overlapping sexual relationships with the victim and
the defendant. After several hours of questioning, the
police released Sessler. The police were unaware, at
this point, of any connection between the defendant
and the crime.
After the victim’s death, the defendant pursued Ses-
sler. She sent him a care package, consoled him, and
was one of the few people willing to talk to Sessler
about Raymundo at a time when most people ‘‘sort of
shunned’’ him. In January, 2003, the defendant invited
Sessler to go on a group ski trip. The ‘‘group’’ turned
out to be only Sessler and the defendant. Sessler again
entered into a sexual relationship with the defendant.
The defendant would invite Sessler to her residence,
but, again, only after having first told Christos that her
mentally ill brother was visiting.
In late November, 2002, Christos noticed that the
defendant came home from work with a ‘‘nasty cut’’ on
her thumb. The defendant explained that she had cut
her thumb opening a dog food can; she had two dogs
at the time. As part of his work, on November 13, 2002,
Christos had a meeting with representatives from Phar-
macia, where Anna Lisa had worked. The representa-
tives mentioned that a colleague of theirs had been
recently murdered. Although a name was not men-
tioned, Christos began to wonder if Melissa ‘‘did some-
thing’’ to Anna Lisa. Christos mentioned to the
defendant that an employee at Pharmacia had been
killed and asked whether Melissa was involved and if
Anna Lisa was ‘‘okay . . . .’’ The defendant did not
seem shocked or surprised and responded, without
elaboration, that Anna Lisa was ‘‘fine.’’ Christos testified
at trial that he believed that, at that point, the defendant
thought that he had made that connection. In late 2002,
the defendant reported to Christos that Jack and Anna
Lisa had ‘‘broken up’’ and that Melissa and Jack were
together exclusively. But also in late 2002, the defendant
asked Christos for information about fingerprints and
DNA.
On December 8, 2002, during dinner, the defendant
also asked Emilio Mei and Tammy Mei about DNA and
fingerprints, and questioned whether ‘‘they have every-
body’s DNA on file.’’ In early 2003, Tammy Mei noticed
that, although the defendant continued to talk about
Jack and Melissa, she had not spoken about Anna Lisa
in a while. Tammy Mei asked the defendant about Anna
Lisa, and the defendant responded that Jack and Melissa
were a happy couple; Anna Lisa had moved to New
Jersey because she had obtained a job there.
In 2003, the frequency of trysts at the Pleasantville
condominium—under the guise, so far as the defendant
told Christos, of her mentally ill brother’s visiting—
increased. Christos was ‘‘getting tired of leaving’’ when
the defendant’s ‘‘brother’’ visited and told the defendant
that her brother ‘‘ha[d] to be told that we’re married.’’
On March 22, 2003, the defendant described a guess-
ing game to Christos. The game involved one person’s
being handcuffed and blindfolded while the other
placed objects against the bound person’s skin; the
bound person was to guess the identity of the object.
The following day, the defendant asked Christos if he
wanted to play the guessing game. The defendant was
the first to be bound and blindfolded. She guessed vari-
ous household items.
Then it was Christos’ turn. He lay on the floor, blind-
folded and handcuffed to a chair. Christos guessed vari-
ous common household items. The defendant then went
to the kitchen to retrieve ‘‘one last item, one more thing
to guess.’’ She sat on Christos’ midsection and touched
the item to his face; Christos guessed the item was a
candle. The item was a knife. The defendant thrust the
knife into Christos’ chest, paused and then again thrust
the knife into Christos’ chest. The defendant said, ‘‘Oh,
my God, I think I hurt you. You’re bleeding.’’ Still blind-
folded and handcuffed, Christos asked the defendant
what had happened. She explained that ‘‘something fell
on you. I think the candle hurt you.’’ Christos asked
the defendant to remove the blindfold, and she did. But
when he asked her to remove the handcuffs, she stated
that she could not find the key. At Christos’ request,
the defendant helped him break the chair to which the
handcuffs were attached.
Christos asked the defendant to call 911. He heard
the defendant seem to make a 911 call, but, after a
significant amount of time had passed, no ambulance
arrived. Christos asked the defendant to call 911 again
and he asked to talk to the operator. The defendant
told Christos that the operator did not want to talk to
him, but rather wanted him to lie on the floor. The
defendant at this point instead telephoned Sessler and
invited him over to the condominium for dinner.
Eventually, Christos, still conscious, asked the defen-
dant to take him to a nearby hospital, and the defendant
obliged. She drove slowly, according to Christos, and
parked in the rear of the Behavioral Health Center of
Westchester Medical Center in Valhalla, New York. The
defendant got out of the car and opened the rear driver’s
side door. Christos thought the defendant was going to
help him out of the car until he saw an angry expression
on her face and saw her lunge at him with the knife.
Christos managed to get out of the car and attempted
to wrestle the knife out of the defendant’s hands. The
melee moved to a grassy spot in the parking lot, while
Christos visibly was bleeding through his shirt. The
defendant begged Christos to ‘‘stay with me, talk to me
. . . .’’ Christos broke free, ran about 200 feet, and
yelled to a medical resident and another person, who
were near the entrance to the Behavioral Health Center.
The resident called 911. The defendant asked the resi-
dent to let her take Christos to the emergency room.
The resident refused. The defendant was arrested, in
New York, for attempted murder in connection with
this incident.
When Sessler arrived at the defendant’s condomin-
ium for dinner, he found police officers searching the
residence. Police officers informed him that there had
been a domestic dispute and that Christos was in a
hospital. Later, after reading an article in a newspaper
about the stabbing, Sessler contacted the Stamford
police and informed them that they should consider the
defendant to be a suspect in the death of Raymundo.
Eventually, Sessler told officers about his concurrent
affairs with the defendant and Raymundo. Days after
Christos’ stabbing, the Stamford police contacted
Christos about the death of Raymundo. Christos gave
the officers several written statements and the defen-
dant’s phone records.
Christos lived to testify in the jury trial of the defen-
dant for the murder of Raymundo. The defendant was
convicted of murder in violation of § 53a-54a. She was
sentenced to fifty years imprisonment consecutive to
her sentence in the New York case for the attempted
murder of Christos. This appeal followed.
I
The defendant first claims that the court improperly
admitted evidence of Christos’ conversations with her,
in violation of the marital communications privilege.
We disagree.
Prior to trial, the defendant, by counsel, filed a motion
in limine for an order to exclude from evidence certain
communications between the defendant and Christos.
She asserted the marital communications privilege. The
state also filed a motion in limine for a determination
that certain statements made by the defendant to
Christos were admissible. On June 3, 2011, prior to trial,
the court heard arguments relating to the motions in
limine. The court ruled that ‘‘these statements [by the
defendant to Christos] were not made in furtherance
or induced by affection, confidence, loyalty, and integ-
rity of the relationship; quite the contrary. It is just the
opposite. The statements made to the run-up of the
murder of Anna Lisa Raymundo, the description of a
faux triangle, again, for lack of a better word, it would
be bizarre to classify those as in furtherance of the
sanctity of the marital relationship. The plan here was
to do in a potential third party suitor of Mr. Sessler or
a third party suitor of Mr. Sessler and, ultimately, Mr.
Christos, have him removed from the scene either by
way of divorce and/or physically remove him from the
scene. And, in fact, this defendant was convicted of the
attempted murder of her husband in those [New York]
proceedings. So, those statements leading up to the run-
up in this triangle and whatnot for various reasons don’t
fall within the purview of the marital privilege. To rule
that way would be, to be, bizarre. Statements after the
death of Raymundo to accommodate the relationship
with Sessler fall in the same category, as well as the
statements leading up to and relative to the attack and
attempted murder of Mr. Christos. To argue that these
were in furtherance of the marital relationship defies
common sense . . . .’’ The court granted the state’s
motion and denied the defendant’s motion.
On appeal, the defendant argues that it was improper
for the court to have permitted Christos to testify as
to the following conversations between him and the
defendant: (1) stories about Melissa, Jack and Anna
Lisa, (2) fictional visits from the defendant’s brother,
(3) the defendant’s informing Christos that she bought
a lock pick set to get into the victim’s house to look
for photographs, and her attempts to use the lock pick
set on the front doors of their condominium, (4) conver-
sations about an eavesdropping device that the defen-
dant wanted to place in Jack’s office to listen to his
conversations, (5) the defendant’s questioning of
Christos in late 2002 about DNA and fingerprints, (6)
stories about Melissa’s becoming upset when Jack
rebuffed her sexual advances and Melissa’s arranging
to run into Jack at an airport and fly back home in the
seat next to him, (7) in November, 2002, Christos’ asking
the defendant about Anna Lisa, and the defendant’s
reporting that Jack had ended his relationship with
Anna Lisa and was dating Melissa exclusively, (8) in
late November, 2002, the defendant’s explaining that
she had cut her thumb on a can of dog food, and (9)
the events of the stabbing on March 23, 2003.
‘‘The scope of an evidentiary privilege is a question
of law, which we review de novo. . . . To the extent
that the trial court has made findings of fact, our review
is limited to deciding whether such findings were clearly
erroneous. When, however, the trial court draws con-
clusions of law, our review is plenary and we must
decide whether its conclusions are legally and logically
correct and find support in the facts that appear in the
record. . . . [B]ecause testimonial privileges prevent
full disclosure of the truth, they are to be strictly con-
strued. . . . Moreover, the party asserting the privilege
has the burden of establishing its factual foundation.’’
(Citations omitted; internal quotation marks omitted.)
State v. Mark R., 300 Conn. 590, 597–98, 17 A.3d 1 (2011).
To the extent that our review requires us to examine
General Statutes § 54-84b (b), the statute codifying the
marital communications privilege, our review is ple-
nary. See State v. Adams, 308 Conn. 263, 269, 63 A.3d
934 (2013). ‘‘The principles that govern statutory con-
struction are well established. When construing a stat-
ute, [o]ur fundamental objective is to ascertain and give
effect to the apparent intent of the legislature. . . . In
seeking to determine [the] meaning [of the statute we]
. . . first . . . consider the text of the statute itself and
its relationship to other statutes. If, after examining
such text and considering such relationship, the mean-
ing of such text is plain and unambiguous and does
not yield absurd or unworkable results, extratextual
evidence of the meaning of the statute shall not be
considered.’’ (Internal quotation marks omitted.) State
v. Thompson, 305 Conn. 806, 818–19, 48 A.3d 640 (2012).
In State v. Christian, 267 Conn. 710, 728–29, 841 A.2d
1158 (2004), our Supreme Court explicitly recognized
the existence, under the common law, of the marital
communications privilege. The court held that a com-
munication is protected by the privilege if (1) the com-
munication was made to a spouse during a valid
marriage and (2) the communication was confidential.
Id., 728–29. The defendant in Christian filed a motion
in limine to preclude statements he had made to his
wife, following a car crash in which the defendant had
been intoxicated and a female companion had been
killed, that he had been driving the car at the time. Id.,
722. The wife testified during a voir dire that, at the
time of trial, she and her husband were divorced and
that, at the time of the incident, their marriage ‘‘ ‘was
very rocky.’ ’’ Id. The trial court denied the defendant’s
motion in limine, reasoning that the privilege did not
apply because the marriage irretrievably had broken
down. Id., 723. Our Supreme Court determined that ‘‘the
reasons justifying the marital communications privi-
lege—encourag[ing] marital partners to share their
most closely guarded secrets and thoughts, thus adding
an additional measure of intimacy and mutual support
to the marriage—apply with equal force to married cou-
ples who, despite the appearance to outsiders of an
irretrievably broken marriage, may still share hopes of
reconciliation. . . . Although the defendant’s marriage
may have been acrimonious at the time that he had
made the communications to his wife, the marital com-
munications privilege nonetheless was valid [and] the
defendant’s communications to his wife, made while
the couple was living together as husband and wife,
were subject to the marital communications privilege
insofar as those communications were confidential.’’
(Citation omitted; internal quotation marks omitted.)
Id., 734–35.
Section 54-84b (b), enacted after Christian, codified
the marital privilege, with some exceptions not relevant
to this case, as follows: ‘‘in any criminal proceeding, a
spouse shall not be . . . allowed to testify to a confi-
dential communication made by one spouse to the other
during the marriage, over the objection of the other
spouse.’’ Subsection (a) defines ‘‘confidential communi-
cation’’ as ‘‘any oral or written communication made
between spouses during a marriage that is intended to
be confidential and is induced by the affection, confi-
dence, loyalty and integrity of the marital relationship.’’
General Statutes § 54-84b (a). Section 54-84b (a), then,
added a third component to the marital privilege not
found in the common law:5 in addition to the common-
law requirements that the communication be made to
a spouse during marriage, § 54-84b (a) added the
requirement that the communication also be induced
by the affection, confidence, loyalty and integrity of the
marital relationship.
The defendant, citing Christian, contends that the
trial court erred in observing that the marriage of
Christos and the defendant was bad ‘‘because [such a
determination] depends on a judge’s subjective conclu-
sion that in the case before him, the marriage is already
so wrecked that there is nothing to save.’’ The defendant
argues that the phrase ‘‘during the marriage,’’ as used
in § 54-84b, does not distinguish between ‘‘good’’ and
‘‘bad’’ marriages. The defendant is correct in suggesting
that the ‘‘during marriage’’ component does not draw
such a distinction. The nature of the marriage, whether
acrimonious or harmonious, is not a factor in determin-
ing whether the privilege applies. State v. Christian,
supra, 267 Conn. 728–29.
The nature of the marriage is not at issue in this case,
however. The state does not dispute that the communi-
cations were made during a valid marriage. In ruling
that the marital communications privilege did not apply,
the trial court did not focus on the quality of the mar-
riage—good or bad—but rather focused on the nature
of the communication. In doing so, the court highlighted
the element added by § 54-84b: that the communication
be ‘‘made in furtherance or induced by the affection,
confidence, loyalty, and integrity of the relationship.’’
In addressing the ‘‘induced by the affection’’ require-
ment, the defendant argues that it ‘‘speaks to the marital
relationship in general and not to the specific marriage
before the trial court. . . . A communication is
induced by the affection, confidence, loyalty and integ-
rity of the marital relationship if it might not be spoken
in public because it might expose the personal feelings
and relationships or cause embarrassment to the
spouses if done outside the privacy of the marital rela-
tionship.’’ (Citation omitted; internal quotation marks
omitted.)
If, as the defendant contends, the ‘‘induced by
affection’’ language merely describes the nature of mari-
tal relationships in general and is intended to protect
‘‘personal feelings,’’ the language adds nothing to the
‘‘during marriage’’ and confidentiality requirements.
The defendant’s interpretation would render the
‘‘induced by affection’’ requirement meaningless. In
construing a statute, we avoid, if possible, constructions
that render words meaningless. See State v. Menditto,
147 Conn. App. 232, 243, 80 A.3d 923 (2013), cert.
granted on other grounds, 311 Conn. 911, 84 A.3d 880
(2014). Section 54-84b (a) defines ‘‘confidential commu-
nication’’ in the conjunctive: the term ‘‘means any oral
or written communication made between spouses dur-
ing a marriage that is intended to be confidential and
is induced by the affection, confidence, loyalty and
integrity of the marital relationship.’’ (Emphasis added.)
This statutory definition includes the during marriage
and confidentiality elements of the common law as set
forth in State v. Christian, supra, 267 Conn. 710, and
then provides the ‘‘induced by the affection’’ language.
If we give meaning to all words and phrases, we inter-
pret this language to have meaning additional to the
other two elements. According to the plain language of
the statute, the ‘‘induced by the affection’’ requirement
further limits the privilege to the subset of those confi-
dential statements made between spouses in a valid
marriage which are ‘‘induced by the affection, confi-
dence, loyalty and integrity of the marital relationship.’’
General Statutes § 54-84b (a).
The remaining question is whether the trial court
properly determined that the requirement was not satis-
fied by the facts presented. The trial court concluded
that the defendant’s statements at issue were not made
to Christos a manner induced by the affection, confi-
dence, loyalty, and integrity of the marital relationship,
but rather were made to further her obsessive relation-
ship with Sessler. This goal was advanced by removing
Christos, first through deception and dissemblance and
later, less subtly, by attempting to murder him. The
court did not err in concluding that the defendant’s
statements at issue to Christos, throughout the course
of the relevant time frame, were not ‘‘induced by the
affection’’ of the marital relationship. The statements
quite clearly were meant to deceive Christos, so that
he would leave the marital home and her affair with
Sessler would be enabled, would give advice and assis-
tance to her so that she could further her affair with
Sessler, would assist in his own demise by submitting
to being restrained and by accepting the defendant’s
false assurances that she was trying to secure medical
assistance. The facts found as predicate to the applica-
tion of the evidentiary standard are subject to the clearly
erroneous standard of review. State v. Mark R., supra,
300 Conn. 597. The court did not err in concluding
that, on the unusual facts of this case, the ‘‘induced
by affection’’ requirement was not satisfied and the
privilege, therefore, did not shelter the various commu-
nications.
II
The defendant next claims that the court improperly
permitted the state to present evidence of misconduct.
We disagree.
Prior to trial, the state filed a motion in limine to
admit evidence about the defendant’s attempted murder
of Christos and her mentioning and possession of night
vision binoculars, eavesdropping devices and lock pick
tools to spy on the victim and/or Sessler. The defendant
filed a motion in limine to preclude the evidence on
the ground that it was inflammatory and prejudicial and
not relevant to identity. At a hearing on the motion, the
state argued that it proffered the evidence to show
common scheme or plan, motive, identity and intent
on the ground that murdering the victim and attempting
to murder Christos were part of the same plan—to
further a romantic relationship with Sessler. Defense
counsel argued that: the liberal rule applicable to sex
crimes cases did not apply; evidence of the attempted
murder of Christos was inadmissible because it showed
a propensity toward violence; the victim’s murder
lacked sufficient similarity to Christos’ murder to make
evidence of the latter admissible as part of a common
scheme or plan; the prejudicial effect of the misconduct
evidence outweighed its probative value; and a curative
instruction was insufficient.
In its memorandum of decision, the court granted
the state’s motion and explained its reasoning for so
ruling: ‘‘the evidence is critical and does not unduly
arouse the jury’s emotions of prejudice, sympathy or
hostility. The defendant’s attempt to murder her hus-
band is not gruesome or heinous. The fact that she
engaged in an affair with a coworker is . . . common-
place . . . . Deceptive manipulation of a husband in
such a situation is normally attendant to such an affair.
The degree of manipulation is unusual, but to the extent
that it is, it is extremely relevant to motive, common
scheme, identity and intent. Its probative value clearly
outweighs any minimal prejudice.’’ The court further
explained that the evidence did not show a general
propensity toward violence but rather suggested that
the two assaults arose from animus toward two particu-
lar individuals. The court noted that a limiting instruc-
tion would help to ensure that the jury would not
construe the evidence to show a general propensity
toward violence. The court further noted that in this
‘‘highly unusual case’’ the proffered evidence resembled
misconduct testimony in sex crime cases where the
defendant is driven by a motive that is aberrant and
compulsive. The court stated that ‘‘[w]hile a sex crime
is not charged in this matter, the aberrant compulsivity
of the defendant’s conduct makes the admission of the
evidence that much more critical in an otherwise cir-
cumstantial case where there is no witness to the
crime.’’
The court gave limiting instructions either before or
after the testimony of the witnesses who testified about
the misconduct. The court instructed the jury, at the
time of the misconduct testimony and again in the
course of its final instructions, that the misconduct
evidence had not been admitted to show bad character
or propensity toward violence, but only to show motive,
common plan or scheme, to corroborate prosecution
testimony and to complete the story of the crime.
The defendant argues that the court improperly
admitted misconduct evidence of efforts to surveil the
victim and to stab Christos. She argues that the
uncharged misconduct evidence does not fall within
the common scheme or plan exception, as properly
limited, because there was no evidence, nor any logical
inference, that the defendant had a plan to kill Christos
at the time she murdered Raymundo. The state’s theory
of a common scheme or plan, then, amounted to a mere
propensity, or ‘‘ ‘once a murderer, always a murderer.’ ’’
The defendant further argues that the prejudicial effect
of the misconduct evidence outweighed its minimal
probative value—‘‘[t]he picture of [the defendant] stab-
bing her husband as he lay bound and gagged, delaying
medical treatment and stabbing him again in the hospi-
tal parking lot overwhelmed the jury.’’
We assume for the purpose of analysis that all of the
evidence in dispute was indeed misconduct. Some of
the evidence, such as the attempted murder of Christos,
quite plainly was, at a minimum, misconduct. Evidence
of the procurement and use of night vision goggles, for
example, is not quite so clearly misconduct. But if the
evidence was properly admitted under the misconduct
rubric, it would pass muster under any theory.
Evidence of ‘‘uncharged misconduct . . . generally
is inadmissible, unless it falls within a well established
evidentiary exception. See Conn. Code Evid. § 4-5 (b)
([e]vidence of other crimes, wrongs or acts of a person
is admissible . . . to prove intent, identity, malice,
motive, common plan or scheme, absence of mistake
or accident, knowledge, a system of criminal activity,
or an element of the crime, or to corroborate crucial
prosecution testimony). As a general rule, evidence of
prior misconduct is inadmissible to prove that a crimi-
nal defendant is guilty of the crime of which the defen-
dant is accused. . . . Such evidence cannot be used to
suggest that the defendant has a bad character or a
propensity for criminal behavior. . . . On the other
hand, evidence of crimes so connected with the princi-
pal crime by circumstance, motive, design, or innate
peculiarity, that the commission of the collateral crime
tends directly to prove the commission of the principal
crime, is admissible. The rules of policy have no applica-
tion whatever to evidence of any crime which directly
tends to prove that the accused is guilty of the specific
offense for which he is on trial. . . . We have devel-
oped a two part test to determine the admissibility of
such evidence. First, the evidence must be relevant and
material to at least one of the circumstances encom-
passed by the exceptions. . . . Second, the probative
value of the evidence must outweigh its prejudicial
effect. . . . Because of the difficulties inherent in this
balancing process, the trial court’s decision will be
reversed only whe[n] abuse of discretion is manifest or
whe[n] an injustice appears to have been done. . . .
On review by this court, therefore, every reasonable
presumption should be given in favor of the trial court’s
ruling.’’ (Citations omitted; footnote omitted; internal
quotation marks omitted.) State v. Randolph, 284 Conn.
328, 339–40, 933 A.2d 1158 (2007).
In nonsex crime cases involving a ‘‘true’’ common
scheme or plan, ‘‘[e]vidence of uncharged misconduct,
although inadmissible to prove a defendant’s bad char-
acter or propensity to engage in criminal behavior, is
admissible [t]o prove the existence of a larger plan,
scheme, or conspiracy, of which the crime on trial is
a part. . . . To prove the existence of a common
scheme or plan, each crime must be an integral part of
an overarching plan explicitly conceived and executed
by the defendant . . . . Evidence of such a plan is rele-
vant to the charged crime because it bears on the defen-
dant’s motive, and hence the doing of the criminal act,
the identity of the actor, and his intention, where any
of these is in dispute. . . . In . . . true common
scheme or plan cases, the nature of the charged and
uncharged crimes combined with connecting evidence,
if any, gives rise to a permissive inference that an overall
scheme or plan existed in the defendant’s mind, and
that the crimes were executed in furtherance of that
plan.’’ (Citations omitted; internal quotation marks
omitted.) Id., 343–44.
The defendant is correct in arguing that the miscon-
duct evidence—especially that portion of the evidence
relating to the attempted murder of Christos—was not
part of a common scheme as narrowly defined. That
is, there was no evidence that the defendant had the
murder of Christos in mind when she killed Raymundo.
In the broader sense, however, the connection between
the two crimes—and the procurement of the night
vision goggles and a lock pick—is palpably inferable,
such that the trial court quite clearly did not abuse its
discretion. The underlying and overwhelming motive
suggested by the trial court was the defendant’s obses-
sion.6 Having eliminated her rival, she continued in her
quest for satisfaction of the obsession to eliminate the
next threat to her liaison with Sessler, both in terms
of access to the condominium and Christos’ nascent
suspicion that something was not quite right with the
‘‘Anna Lisa’’ imbroglio.7
The gravamen of the evidentiary standard regarding
uncharged misconduct is relevance to a material issue.
Propensity to commit crimes is not material. Identity
is, of course, material, and identity may be inferred
by intent and motive. Closely related is the common
scheme or pattern, admissible ultimately to show iden-
tity.8 In this case, the broader ‘‘common scheme’’ was
analytically more a common, unique motive, most pro-
bative on the issue of identity. State v. Randolph, supra,
284 Conn. 340, requires only a ‘‘connect[ion] with the
principal crime by circumstance, motive, design, or
innate peculiarity . . . .’’ (Emphasis added; internal
quotation marks omitted.) Here, the court properly
found such a connection.
We also disagree with the defendant’s assertion that
the introduction of this evidence at trial was more preju-
dicial than probative. ‘‘The test for determining whether
evidence is unduly prejudicial is not whether it is dam-
aging to the defendant but whether it will improperly
arouse the emotions of the jury. . . . [W]hen the trial
court has heard a lengthy offer of proof and arguments
of counsel before performing the required balancing
test, has specifically found that the evidence was highly
probative and material, and that its probative value
significantly outweighed the prejudicial effect, and has
instructed the jury on the limited use of the evidence
in order to safeguard against misuse and to minimize
the prejudicial impact . . . we have found no abuse of
discretion. . . . Proper limiting instructions often miti-
gate the prejudicial impact of evidence of prior miscon-
duct. . . . Furthermore, a jury is presumed to have
followed a court’s limiting instructions, which serves
to lessen any prejudice resulting from the admission of
such evidence.’’ (Citations omitted; internal quotation
marks omitted.) State v. Franko, 142 Conn. App. 451,
465, 64 A.3d 807, cert. denied, 310 Conn. 901, 75 A.3d
30 (2013).
The court reasonably could have concluded that mis-
conduct evidence was probative of the defendant’s
overarching motive to win Sessler’s affections and to
eliminate those who stood in her way. In light the violent
nature of the stabbing of the victim herself, the
attempted murder of Christos was not likely to arouse
the emotions of the jury to a different degree. Further-
more, the court gave limiting instructions that presump-
tively lessened any prejudice. Accordingly, the court
did not abuse its discretion in determining that the
evidence was more probative than prejudicial.
III
The defendant last claims that she did not validly
waive her right to counsel. We disagree.
The defendant concedes that this claim is unpre-
served and seeks to prevail pursuant to State v. Golding,
213 Conn. 233, 239–40, 567 A.2d 823 (1989).9 The claim
merits appellate review because the record is adequate
for review. We conclude, however, that the defendant’s
claim fails under the third prong of Golding because
the trial court’s thorough canvass of the defendant pro-
tected her sixth and fourteenth amendment right to
counsel.10
‘‘We review the trial court’s determination with
respect to whether the defendant knowingly and volun-
tarily elected to proceed pro se for abuse of discretion.
. . . Recognizing the constitutional implications atten-
dant to Golding review, we do not review the proceed-
ings for strict compliance with the prophylactic rule of
Practice Book § 44-3, but rather for evidence that the
waiver of counsel was made knowledgeably and volun-
tarily. . . .
‘‘The right to counsel and the right to self-representa-
tion present mutually exclusive alternatives. A criminal
defendant has a constitutionally protected interest in
each, but since the two rights cannot be exercised
simultaneously, a defendant must choose between
them. When the right to have competent counsel ceases
as the result of a sufficient waiver, the right of self-
representation begins. . . . Put another way, a defen-
dant properly exercises [her] right to self-representa-
tion by knowingly and intelligently waiving [her] right
to representation by counsel. . . .
‘‘Practice Book § [44-3] was adopted in order to
implement the right of a defendant in a criminal case
to act as [her] own attorney . . . . Before a trial court
may accept a defendant’s waiver of counsel, it must
conduct an inquiry in accordance with § [44-3], in order
to satisfy itself that the defendant’s decision to waive
counsel is knowingly and intelligently made. . . .
Because the § [44-3] inquiry simultaneously triggers the
constitutional right of a defendant to represent [herself]
and enables the waiver of the constitutional right of a
defendant to counsel, the provisions of § [44-3] cannot
be construed to require anything more than is constitu-
tionally mandated. . . .
‘‘[A] defendant need not [herself] have the skill and
experience of a lawyer in order competently and intelli-
gently to choose self-representation . . . . Rather, a
record that affirmatively shows that [she] was literate,
competent, and understanding, and that [she] was vol-
untarily exercising [her] informed free will sufficiently
supports a waiver. . . . The nature of the inquiry that
must be conducted to substantiate an effective waiver
has been explicitly articulated in decisions by various
federal courts of appeals. . . .
‘‘The multifactor analysis of [Practice Book § 44-3],
therefore, is designed to assist the court in answering
two fundamental questions: first, whether a criminal
defendant is minimally competent to make the decision
to waive counsel, and second, whether the defendant
actually made that decision in a knowing, voluntary and
intelligent fashion. . . . As the United States Supreme
Court recently recognized, these two questions are sep-
arate, with the former logically antecedent to the latter.
. . . Inasmuch as the defendant’s competence is uncon-
tested, we proceed to whether the trial court abused
its discretion in concluding that the defendant made the
waiver decision in a knowing, voluntary, and intelligent
fashion.’’ (Citations omitted; internal quotation marks
omitted.) State v. Collins, 299 Conn. 567, 610–12, 10
A.3d 1005, cert. denied, U.S. , 132 S. Ct. 314, 181
L. Ed. 2d 193 (2011).
Prior to trial, the defendant filed a motion to repre-
sent herself. During the court’s canvass of the defendant
on this matter, the defendant indicated that she was
forty-two years old, had graduated from high school,
had a graduate degree, and had been through a criminal
trial in New York. She further indicated that she was
not forced or threatened to request to represent herself;
that she had not ingested any drugs, alcohol or medicine
that would affect her ability to make decisions; and that
she was confident in her ability to proceed. When asked
by the court, she stated that she understood: that she
had a constitutional right to be represented by a lawyer;
that she was charged with murder; that she knew the
elements of the offense of murder; that the maximum
penalty for murder was sixty years, with a mandatory
minimum of twenty-five years incarceration; that
although the court ‘‘in all likelihood’’ would give her
‘‘some leeway’’ in the trial process, she would have to
follow the rules of evidence ‘‘just like a lawyer has to’’;
that she would have to select a jury; ‘‘that there are great
dangers involved in self-representation,’’ including the
difficulty in maintaining objectivity. She further indi-
cated that she had educated herself regarding the ele-
ments of murder and the law of evidence and that she
was familiar with courtroom roles and other partici-
pants within the court system. The court asked if she
was ‘‘absolutely sure’’ that she wanted to represent
herself, and she answered, ‘‘I am certain.’’ The court
indicated that she would have standby counsel and the
defendant said that she understood that the role of a
standby counsel was to ‘‘sit there mute’’ unless she
asked questions and sought help from him. Following
its thorough canvass, the court granted the defendant’s
motion to represent herself, finding that the defendant
had knowingly, intelligently and voluntarily decided to
represent herself.
The defendant argues that the court’s canvass was
invalid in a number of ways. She argues that the court
did not explain to her: the technical problems she faced
in ‘‘proving herself innocent’’; the importance of counsel
for an effective defense; ‘‘that by representing herself
she substantially increased the risk that although she
may be innocent, the jury may find her guilty because
she does not know how to establish her innocence’’;
that she was giving up, as a practical matter, a defense
of extreme emotional disturbance and an instruction
on lesser included offenses; and that the sentencing
court could impose a sentence consecutive to her New
York sentence. She also argues that the court misled
her to believe that the trial judge would not rigorously
enforce the rules of evidence if she represented herself
and did not probe her regarding the dissatisfaction with
counsel that led to her determination to represent
herself.
Contrary to the defendant’s assertion, the court was
not required to inform the defendant of any technical
problems in ‘‘proving herself innocent’’ or inform the
defendant ‘‘that by representing herself she substan-
tially increased the risk that although she may be inno-
cent, the jury may find her guilty because she does not
know how to establish her innocence.’’ In a criminal
trial, a defendant is not required to prove her innocence,
rather the state has the burden of proving guilt beyond
a reasonable doubt. See, e.g., State v. Valinski, 254
Conn. 107, 120, 756 A.2d 1250 (2000); State v. Carmon,
47 Conn. App. 813, 827 n.7, 709 A.2d 7, cert. denied,
244 Conn. 918, 714 A.2d 7 (1998). The court adequately
warned the defendant, that ‘‘there are great dangers
involved in self-representation’’ and that she would
carry the burden of proof if she wanted to assert an
affirmative defense.
The court did not mislead her to believe that the trial
judge would not rigorously enforce the rules of evidence
if she represented herself. During the canvass, the court
inquired of the defendant whether she understood that
if she represented herself ‘‘the court in all likelihood
would give you some leeway in the trial process, but
you’re going to have to follow the rules of evidence just
like a lawyer has to and have to follow the proper
courtroom procedures.’’ The defendant stated that she
understood and that ‘‘[t]he only leeway I would hope
for is just maybe a little time to . . . confer with
standby counsel.’’ The court did not mislead the defen-
dant, but rather informed her that she would have to
follow the rules of evidence ‘‘just like a lawyer’’ and
the defendant indicated that she understood.
The defendant further argues that the court erred in
not delving into her dissatisfaction with counsel that
led to her determination to represent herself. This asser-
tion is not entirely accurate, because the court did
inquire about her dissatisfaction with counsel. The
defendant responded that she had a good rapport with
counsel, but that she wanted to represent herself so
that she could have more control over the decision-
making process.11
The defendant also argues that the court did not
explain the importance of counsel for an effective
defense or that she was giving up, as a practical matter,
a defense of extreme emotional disturbance and an
instruction on lesser included offenses. A self-repre-
sented defendant is not precluded from raising defenses
or asking for instructions on lesser included offenses.
To the extent that navigating a criminal trial is more
difficult for a self-represented defendant, the court ade-
quately explained and warned of the dangers of self-
representation. Specifically, regarding the issue of affir-
mative defenses, the court inquired: ‘‘I don’t know
whether you’re planning on or you’re thinking [of] rais-
ing a defense about lack of capacity due to mental
disease or defect or [an] . . . extreme emotional
defense; both of those are something called affirmative
defenses. . . . And that would mean that you have to
prove that defense by a preponderance of the evidence.
Do you understand that?’’ The defendant responded
that she understood, but ‘‘that’s not the avenue I’m
pursuing.’’ The court further inquired: ‘‘I know you’re
saying you’re not planning to raise them. I don’t know
. . . maybe you’ll charge your mind. . . . But do you
understand, in those areas, you’d have to educate your-
self on what the law is and you’d have a burden of
proof going forward, and you might be better off having
an attorney helping you with that, although you sound
like you’ve researched these issues. Is that right?’’ The
defendant stated: ‘‘I have done a great deal of research,
I’m not a neophyte, I’m not completely . . . in the dark
with regard to those issues. I’ve been in prison almost
eight years and have a little experience, jailhouse law-
yer experience.’’
The defendant last argues that her decision to repre-
sent herself imposed a greater risk of a sentence consec-
utive to her New York sentence. The court informed
the defendant of the maximum penalty of sixty years
and the mandatory minimum of twenty-five years. ‘‘It
is well settled that, in canvassing a defendant seeking
to exercise [her] right of self-representation, a trial
court must apprise [her] of the possible range of crimi-
nal penalties or punishments to which [she] is exposed.
. . . Put differently, a constitutionally valid canvass is
one that leaves the defendant with a meaningful
appreciation of the period of incarceration [she] face[s]
if convicted of the charges [she] face[s]. . . . That
explanation need not be made with mathematical exac-
titude, so long as it leaves the defendant with a realistic
picture of [her] sentencing exposure.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Collins,
supra, 299 Conn. 614. The court apprised the forty-two
year old defendant that she faced a possibility of a sixty
year sentence, which effectively was a life sentence
regardless of whether it was imposed consecutive or
concurrent to the New York sentence of twenty-five
years. The defendant was left with a realistic view of her
exposure for the crime charged, which was effectively a
life sentence.
We conclude that the court’s canvass established that
the defendant’s decision to proceed without the benefit
of counsel was competently made, and knowing, intelli-
gent and voluntary.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant and Christos were divorced in 2004.
2
Sessler testified that on the return flight from a bachelor party in Las
Vegas, he was seated next to the defendant, who explained that she was
returning from California.
3
Sessler testified that he attempted to arrange a date between a friend
of his and the defendant.
4
At trial, a voice identification examiner testified to a reasonable degree
of scientific certainty that the voice on the 911 call was that of the defendant.
5
Section 5-1 of the Connecticut Code of Evidence provides: ‘‘Except as
otherwise required by the constitution of the United States, the constitution
of this state, the General Statutes or the Practice Book, privileges shall be
governed by the principles of the common law.’’
The codified marital communications privilege does not entirely displace
the common law, but rather adds an additional element.
6
The court hinted that the misconduct evidence might fall under the more
liberal standard for sex crimes cases, but it is unclear from its decision
whether the court employed the standard for sex crimes or nonsex crimes.
At any rate, we conclude that the more stringent standard for nonsex crime
cases applies and that under that standard, the court did not abuse its dis-
cretion.
7
The disputed evidence quite plainly had a tendency to show motive and,
as a result, identity. We note, however, that although both substantive crimes
were committed with a knife, they do not appear to share sufficient charac-
teristics to qualify as ‘‘signature crimes.’’
8
We note that § 4-5 of the Connecticut Code of Evidence states merely
that misconduct evidence is not admissible to show bad character or criminal
tendencies but is admissible for other purposes. The list of admissible pur-
poses is specifically nonexhaustive.
9
‘‘[A] defendant can prevail on a claim of constitutional error not preserved
at trial only if all of the following conditions are met: (1) the record is
adequate to review the alleged claim of error; (2) the claim is of constitutional
magnitude alleging the violation of a fundamental right; (3) the alleged
constitutional violation clearly exists and clearly deprived the defendant of
a fair trial; and (4) if subject to harmless error analysis, the state has failed
to demonstrate harmlessness of the alleged constitutional violation beyond
a reasonable doubt.’’ (Emphasis omitted; footnote omitted.) State v. Golding,
supra, 213 Conn. 239–40.
10
The defendant also seeks to prevail pursuant to the plain error doctrine.
‘‘[The plain error] doctrine, codified at Practice Book § 60-5, is an extraordi-
nary remedy used by appellate courts to rectify errors committed at trial
that, although unpreserved, are of such monumental proportion that they
threaten to erode our system of justice and work a serious and manifest
injustice on the aggrieved party. [T]he plain error doctrine . . . is not . . .
a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine
that this court invokes in order to rectify a trial court ruling that, although
either not properly preserved or never raised at all in the trial court, nonethe-
less requires reversal of the trial court’s judgment, for reasons of policy.
. . . In addition, the plain error doctrine is reserved for truly extraordinary
situations [in which] the existence of the error is so obvious that it affects
the fairness and integrity of and public confidence in the judicial proceedings.
. . . Plain error is a doctrine that should be invoked sparingly.’’ (Internal
quotation marks omitted.) State v. Sanchez, 308 Conn. 64, 76–77, 60 A.3d
271 (2013). We determine that there was no error at all, much less plain error.
11
The court inquired: ‘‘[Y]ou indicated . . . that you wanted to represent
yourself because you had ideological differences with your lawyer in this
case. I don’t want to know about your private discussions with your lawyer,
but . . . [m]aybe you could explain that to me.’’ The defendant explained
that her counsel has ‘‘done a phenomenal job and we have a good rapport.
However, I wanted a little bit more control over some of the decision-making
process and just that, you know . . . the order of . . . which witnesses
to call within the letter of the law; I wanted a little control of that. . . . I
just think that there’s only minimal rights that I had as a represented individ-
ual, and I want a little bit more leeway in the decision-making process.’’