State v. Burgos , 170 Conn. App. 501 ( 2017 )

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STATE OF CONNECTICUT v.
CHRISTOPHER BURGOS
(AC 38394)
DiPentima, C. J., and Beach and Alvord, Js.*
Argued September 22, 2016—officially released February 7, 2017
(Appeal from Superior Court, judicial district of
Hartford, Alexander, J. [motion for competency
examination]; Dewey, J. [motion to suppress; motion
to consolidate; judgment].)
Richard Emanuel, for the appellant (defendant).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and Thomas Garcia, former senior assistant state’s
attorney, for the appellee (state).
Opinion
ALVORD, J. The defendant, Christopher Burgos,
appeals from the judgments of conviction, rendered
after a jury trial, of one count of sexual assault in the
first degree in violation of General Statutes § 53a-70 (a)
(2), one count of risk of injury to a child in violation of
General Statutes § 53-21 (a) (2), one count of aggravated
sexual assault of a minor in violation of General Statutes
§ 53a-70c (a) (1), and, in a separate information, one
count of attempt to escape from custody in violation
of General Statutes §§ 53a-49 (a) (2) and 53a-171 (a)
(1). On appeal, the defendant claims that the trial court
erred (1) by not sua sponte ordering pretrial and post-
trial competency hearings and canvassing him on his
purported right to testify at those hearings; (2) in joining
the sexual assault information and the escape informa-
tion for trial; (3) in denying his motion to suppress
evidence seized from his apartment; and (4) in denying
his motion to vacate his convictions for sexual assault
in the first degree and risk of injury to a child on double
jeopardy grounds. We affirm the judgment in part, and
we reverse the judgment in part.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
On August 31, 2011, the eleven year old victim and
her sisters were sitting outside their home when the
defendant approached them.1 The victim did not know
the defendant, but she recalled seeing him the day
before. The defendant invited the victim and one of her
sisters to go to the store with him to get candy. The
victim agreed to go to the store with the defendant
while her sister remained behind. Once the victim and
the defendant were inside the store, however, the defen-
dant said that he did not have any money on him to
purchase anything. The defendant offered to call the
victim’s sister to ask if the victim could go with him to
his apartment nearby to get some money. The defendant
purportedly called the victim’s sister and received per-
mission for the victim to come with him, but when the
victim asked to speak to her sister, the defendant said
that her sister had already hung up the phone.
The defendant and the victim then walked to the
defendant’s apartment, which was a few blocks away
from where the victim lived. Once at the defendant’s
apartment complex, the victim told the defendant that
she wanted to wait outside on the sidewalk for him
while he retrieved his money. The defendant told the
victim to go upstairs. When she refused, he pushed her
upstairs and into his apartment on the second floor.
The victim tried to scream for help, but the defendant
covered her mouth. Once inside the defendant’s apart-
ment, the victim hit and kicked the defendant in an
attempt to get away, but she could not fight him off.2
The defendant pushed her into his bedroom and onto his
bed. Once their pants were off, the defendant retrieved a
small package from his dresser drawer. The victim again
attempted to run away from the defendant, but he
pushed her onto his bed, put a clear cream on her
vagina, and vaginally penetrated her.
After sexually assaulting the victim, the defendant
walked her home and told her that if she told anyone
what happened, he would come after her. Despite the
defendant’s threat, the victim told her mother what
happened to her once she was inside her home. The
victim’s mother called the police, and the victim
directed the police to the defendant’s apartment. The
victim was taken then to an emergency room, where a
sexual assault evidence collection kit was used.
That same day, the defendant was arrested at his
apartment. When officers initially encountered the
defendant outside of his apartment, they detained him
for investigatory purposes. While he was detained, the
defendant consented to a search of his apartment. Dur-
ing their search of the defendant’s apartment, officers
found a small packet of personal lubricant with the
corner torn off in the trash in the defendant’s bathroom
and a corner piece of foil that had been torn from the
packet of lubricant in the defendant’s bedroom. At the
police department, the defendant consented to a buccal
swab so that officers could obtain a sample of his DNA.
A comparison of the victim’s vaginal swab and the
defendant’s buccal swab confirmed the presence of the
defendant’s spermatozoa in the victim’s vaginal cavity.
For the reasons addressed later in this opinion, the
defendant was not released on bond following his
arrest. On September 26, 2012, during a pretrial hearing,
the defendant attempted to escape custody by running
for the back door of the courtroom. Judicial marshals
immediately apprehended the defendant. The state sub-
sequently charged the defendant in a separate informa-
tion with attempt to escape custody in violation of
§§ 53a-49 (a) (2) and 53a-171 (a) (1).
On October 9, 2013, a consolidated trial commenced
on a three count long form information relating to the
defendant’s sexual assault of the victim and a one count
long form information relating to the defendant’s
attempt to escape custody. On October 11, 2013, the
jury returned a guilty verdict on all counts. On June 18,
2014, the court imposed a total effective sentence of
fifty years imprisonment followed by five years special
parole for the two informations. This appeal followed.
Additional facts will be set forth as necessary.
I
The defendant raises four claims with respect to his
competency to stand trial and the process by which
he was found competent to stand trial. The following
additional facts are relevant to these claims. On Septem-
ber 1, 2011, the defendant was arraigned and appointed
counsel from the public defender’s office. During
arraignment, defense counsel noted that the defendant
was a ‘‘client’’ of a mental health facility and that ‘‘[h]e
appears to have been steady with his treatment there.’’
The court, Newson, J., stated that ‘‘mental health atten-
tion should be noted on the [mittimus].’’ During the
defendant’s first six court appearances, between Sep-
tember 1, 2011 and December 12, 2011, his courtroom
behavior was unremarkable.
On January 17, 2012, the defendant was unable to be
transported to court because ‘‘while in the custody of
[the Department of Correction] he covered himself in
feces and refused to be transported.’’ Defense counsel
moved for a competency examination pursuant to Gen-
eral Statutes § 54-56d, and the court3 granted the motion
and issued an order for a competency examination. On
March 28, 2012, the Department of Mental Health and
Addiction Services, Office of Forensic Evaluations, sub-
mitted a competency report, in which the clinical team
unanimously concluded that, while the defendant was
presently not competent to stand trial, there was a sub-
stantial probability that he could be restored to compe-
tency within the statutory time frame.4 On March 29,
2012, the court held a competency hearing, at which
the court agreed with the clinical team’s assessment,
ordered that the defendant receive treatment in an inpa-
tient setting, and continued the case until May 31, 2012.
On May 25, 2012, Dr. Mark S. Cotterell, a forensic
psychiatrist, submitted a second competency report to
the court, in which he concluded that the defendant
had not yet been restored to competency but was still
capable of restoration within the statutory time frame.
Cotterell’s report acknowledged that the defendant had
a history of mental health treatment and engaging in
behaviors indicative of mental illness. However, Cotter-
ell also observed that ‘‘there appears to be a volitional
component to [the defendant’s] presentation. It appears
that he knows more than he is willing to admit.’’ On May
31, 2012, the court held a competency reconsideration
hearing at which it concluded that the defendant was
not competent but was restorable to competency and
ordered the defendant to continue to receive treatment
in an inpatient setting. See General Statutes § 54-56d
(k).
On August 16, 2012, Cotterell submitted a third com-
petency report to the court in which he concluded that
the defendant was competent to stand trial. In that
report, Cotterell noted that the defendant had consis-
tently refused to participate in formal evaluations. How-
ever, Cotterell detailed aspects of the defendant’s
behavior that indicated that ‘‘he has the capacity to
understand his legal situation and the capacity to assist
his attorney if he were to choose to do so.’’ The report
observed that ‘‘there is definitely a volitional compo-
nent’’ to defendant’s refusal to engage in a formal evalu-
ation and that ‘‘[i]t is clear that he knows more than
he is willing to admit.’’ The report also stated that ‘‘[the
defendant] is not currently taking psychiatric medica-
tion, and he has not demonstrated any symptoms of a
serious mental illness that would require such treat-
ment.’’ On August 31, 2012, the court held a competency
reconsideration hearing to reassess the defendant’s
competency to stand trial. At the hearing, Cotterell’s
report was marked as an exhibit, and defense counsel
and the state stipulated that the defendant was compe-
tent to stand trial. The court then found that the defen-
dant was competent to stand trial based on
Cotterell’s report.
On September 26, 2012, the defendant attempted to
escape from the custody of the judicial marshals after
being brought into the courtroom. When court recon-
vened after a recess, the defendant was not present.
The court indicated that he was ‘‘not behaving in any
appropriate manner in the lockup,’’ was ‘‘spitting at the
cell door’’ and was ‘‘giving the correction officers a
difficult time . . . .’’ Defense counsel, who had repre-
sented the defendant over the last year, agreed that the
defendant ‘‘appear[ed] to be in a somewhat agitated
state.’’ The court stated that the defendant’s next court
appearance would be conducted by video conference
‘‘to minimize the further potential of any harm to any
correction[al] and/or judicial marshal staff.’’ Despite
this arrangement, the defendant’s behavior prior to the
next two court hearings prevented him from participat-
ing in those hearings, even via video conference.
Trial commenced on October 9, 2013. When court
reconvened after the first morning recess, the court5
announced that there had been ‘‘a major problem with
the defendant’’ because ‘‘[h]e decided to flush his jump-
suit down the toilet’’ and urinated on the floor. The court
directed defense counsel to find substitute clothing for
him and stated that ‘‘if [the defendant] continues to act
up, he will have handcuffs put on eventually.’’ The court
observed that ‘‘[the defendant] has been behaved in the
courtroom and I’m not concerned about his behavior in
the courtroom.’’ The court further noted that problems
arose only when he leaves the courtroom. While the
court was discussing the defendant’s conduct with
defense counsel, the defendant interjected that he was
acting out when outside the courtroom ‘‘because [the
judicial marshals] put handcuffs on me in a—in a
secured cell where they ain’t supposed to do that.’’
The court admonished the defendant that the judicial
marshals were the ones in control, not him, and gave
defense counsel an opportunity to speak with the defen-
dant. The jury was then brought back into the court
and evidence continued without the defendant being
present in the courtroom. Later that morning, after
another recess, the court observed that ‘‘[the defendant]
is back in the courtroom. . . . [He] has been very well
behaved in court. And that’s what I see and that’s what
I care about, primarily. So, there has been no problem
in the courtroom itself.’’
On October 10, 2013, the second day of trial and
the final day of evidence, the defendant testified with
respect to the escape charge. After defense counsel
declined to conduct a redirect examination of the defen-
dant, the defendant interjected: ‘‘You’re an idiot.’’ The
court excused the jury and engaged in the following
colloquy with the defendant after he was returned to
the defense table:
‘‘The Court: . . . [Y]our last comment was totally
gratuitous.
‘‘The Defendant: I’m sorry, ma’am. I’m on frustration,
I kind of lost a little control. I apologize. It’s kind of
hard, you know, to sit there and like, you know.
‘‘The Court: Your apology is accepted. You don’t have
to go any further. However, do be advised that calling
anyone [names], your attorneys, the state’s attorney,
anyone in the building, that is unacceptable, and if you
weren’t facing so much, you would be facing a contempt
charge. But you did apologize, and it’s just not worth
even considering the contempt because you are facing
so many other serious charges. All right, sir?
‘‘The Defendant: Yes.
‘‘The Court: But thank you for the apology.
‘‘The Defendant: All right.’’
The jury then was brought back into the courtroom,
and the defendant did not make any other comments
or cause any additional disruptions. On October 11,
2013, the third and final day of trial, the jury heard
closing arguments from counsel and was charged by
the court. The defendant did not make any comments
or cause any disruptions in court that day. Additional
facts will be set forth as necessary.
First, the defendant seeks Golding review6 of his
claim that the court violated his purported right to tes-
tify at a competency hearing by not canvassing him, sua
sponte, on whether he understood that by stipulating to
his competency he was waiving his right to testify at a
competency hearing. Second, the defendant claims that
the court committed plain error by permitting defense
counsel to waive the second reconsideration hearing
because § 54-56d (k) permits only the accused to waive
a reconsideration hearing. Third, the defendant claims
that the court violated his due process rights and com-
mitted plain error by accepting his stipulation to his
competency and by not ordering, sua sponte, an eviden-
tiary hearing to evaluate his competency. Finally, the
defendant claims that the court violated his due process
rights and committed plain error by failing to order, sua
sponte, a nunc pro tunc, or retrospective,7 competency
hearing to evaluate his competency at trial in light of
his erratic posttrial conduct, which we discuss in detail
later in this opinion. We reject the defendant’s claims.
We begin by setting forth the standards of review
that will guide our analysis of the defendant’s claims.
‘‘Under Golding, a defendant can prevail on a claim of
constitutional error not preserved at trial only if 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 viola-
tion . . . exists and . . . 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. In the absence of any one of these conditions, the
defendant’s claim will fail.’’ (Internal quotation marks
omitted.) State v. Dixon, 318 Conn. 495, 511, 122 A.3d
542 (2015). ‘‘The first two steps in the Golding analysis
address the reviewability of the claim, while the last
two steps involve the merits of the claim.’’ (Internal
quotation marks omitted.) State v. Britton, 283 Conn.
598, 615, 929 A.2d 312 (2007). ‘‘The appellate tribunal
is free, therefore, to respond to the defendant’s claim
by focusing on whichever condition is most relevant
in the particular circumstances.’’ (Internal quotation
marks omitted.) State v. Dixon, supra, 511.
Although Golding is a doctrine that parties invoke
to obtain review of unpreserved constitutional claims,
the plain error doctrine ‘‘is an extraordinary remedy
used by appellate courts to rectify errors committed at
trial that, although unpreserved, are of such monumen-
tal proportion that they threaten to erode our system
of justice and work a serious and manifest injustice on
the aggrieved party.’’ State v. Myers, 290 Conn. 278,
289, 963 A.2d 11 (2009). ‘‘Plain error is a doctrine that
should be invoked sparingly.’’ (Internal quotation marks
omitted.) Id. ‘‘[An appellant] cannot prevail under [the
plain error doctrine] . . . unless he demonstrates that
the claimed error is both so clear and so harmful that a
failure to reverse the judgment would result in manifest
injustice.’’ (Emphasis in original; internal quotation
marks omitted.) Id., 288.
A
The defendant first seeks Golding review of his claim
that ‘‘the trial court should have informed [him] of his
right to testify [at a competency hearing], and should
have canvassed him on that point, prior to accepting
defense counsel’s [competency] stipulation.’’ (Empha-
sis in original.) The defendant’s argument is predicated
on the assumption that he has a constitutional right to
testify at a pretrial competency hearing, that this is a
‘‘personal right’’ that can be waived only by the defen-
dant, and that only the accused personally can waive
a competency hearing as a result. Although we conclude
that the defendant’s claim is reviewable pursuant to the
first and second prongs of Golding, the defendant is
not entitled to reversal under the third prong of Golding
because he has not established that a constitutional
violation exists and deprived him of a fair trial.8
Assuming, without deciding, that there is a constitu-
tional right to testify at a pretrial competency hearing,
the outcome of this case is controlled by State v. Para-
dise, 213 Conn. 388, 567 A.2d 1221 (1990), overruled in
part on other grounds by State v. Skakel, 276 Conn. 633,
693, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S.
Ct. 578, 166 L. Ed 2d 428 (2006). In Paradise, our
Supreme Court held that the substantive right to testify
under federal constitutional law does not contain a
corollary procedural requirement that a trial court can-
vass a defendant concerning his waiver of his right to
testify unless the defendant affirmatively states that he
wishes to testify or that he did not know he could
testify. Id., 404–405; see also Ghant v. Commissioner
of Correction, 255 Conn. 1, 12 and n.10, 761 A.2d 740
(2000) (‘‘the trial court’s failure to establish that the
petitioner’s waiver of his right to testify [by pleading
guilty] was knowing, intelligent and voluntary does not
constitute a nonfrivolous ground for appeal’’ in light of
Paradise); State v. Joyner, 225 Conn. 450, 482–83, 625
A.2d 791 (1993) (declining to reconsider Paradise);
State v. Jordan, 151 Conn. App. 1, 36 and n.11, 92 A.3d
1032 (trial court may, but is not required to, canvass
defendant personally as part of its independent inquiry
into his competency to stand trial), cert. denied, 314
Conn. 909, 100 A.3d 402 (2014). In the present case, it
is undisputed that at the second reconsideration hearing
the defendant never affirmatively stated that he wished
to testify at the competency hearing or that he did not
know that he could testify. Therefore, the court had no
duty to canvass the defendant on his purported right
to testify at a competency hearing.
The defendant nevertheless urges us to distinguish
this case from Paradise because we are addressing the
purported right to testify at a competency hearing rather
than the well established right to testify at trial, which
was the subject of Paradise. The defendant reasons
that inferring a waiver of the purported right to testify
at a competency hearing is ‘‘illogical, because the defen-
dant (at that point in time) may be ‘unable to understand
the proceedings against him or her or to assist in his
or her own defense.’ ’’ Additionally, the defendant
argues that a defendant’s testimony at a competency
hearing can be particularly important because ‘‘[t]he
defendant’s demeanor and behavior in the courtroom
can often be as probative on the issue of his competence
as the testimony of expert witnesses.’’ (Internal quota-
tion marks omitted.) Although we agree that this case
is factually distinguishable from Paradise, we conclude
that Paradise is nevertheless apposite and controlling
in this circumstance. Therefore, we decline to address
this claim other than to note that ‘‘as an intermediate
appellate body, we are not at liberty to discard, modify,
reconsider, reevaluate or overrule the precedent of our
Supreme Court.’’ (Internal quotation marks omitted.)
State v. Elias V., 168 Conn. App. 321, 334 n.12, 147 A.3d
1102, cert. denied, 323 Conn. 938, A.3d (2016).
B
The defendant also claims that the court erred by
permitting defense counsel to stipulate to his compe-
tency, and thereby waive the second reconsideration
hearing, because § 54-56d (k) permits only the accused
to waive a reconsideration hearing. Because the defen-
dant failed to preserve this statutory claim at trial, he
seeks reversal pursuant to the plain error doctrine.
The application of the plain error doctrine is ‘‘appro-
priate in matters of statutory construction because the
interpretation of [a] statute and the resolution of [the]
issue does not require further fact-finding . . . .’’
(Internal quotation marks omitted.) State v. Myers,
supra, 290 Conn. 288 n.8. Nevertheless, not every statu-
tory error merits reversal under the plain error doctrine.
Id., 290 and n.10. ‘‘A trial court’s failure to comply with
a rule of criminal procedure, without more, is insuffi-
cient to require reversal for plain error.’’ Id., 290; see
also id., 295 (no plain error where ‘‘[t]here simply was
no constitutional right on which the trial court could
have trampled’’). That is, even if a defendant establishes
that the trial court failed to comply with a rule of crimi-
nal procedure, to prevail he must still establish that the
claimed error was ‘‘both so clear and so harmful that a
failure to reverse the judgment would result in manifest
injustice.’’ (Emphasis in original; internal quotation
marks omitted.) Id., 288. Our Supreme Court has held
that a violation of a rule of practice designed to protect
constitutional rights is not grounds for reversal when
the defendant was not actually deprived of his or her
constitutional rights. See, e.g., State v. Sanchez, 308
Conn. 64, 83–85, 87, 60 A.3d 271 (2013) (reversal under
the plain error doctrine not warranted where it was
‘‘exceedingly unlikely’’ that trial court’s failure to give
sua sponte an eyewitness identification instruction pur-
suant to State v. Ledbetter, 275 Conn. 534, 575, 881 A.2d
290 [2005], cert. denied, 547 U.S. 1082, 126 S. Ct. 1798,
164 L. Ed. 2d 537 [2006], harmed the defendant); State
v. Myers, supra, 289–90, 295 (reversal under plain error
doctrine not warranted based on trial court’s failure to
obtain a plea or conduct a trial, in accordance with
Practice Book § 42-2, prior to sentencing defendant as
a repeat offender because ‘‘the defendant . . . failed
to raise any doubt with respect to the validity of his
prior conviction’’ [emphasis in original]).
In the present case, we conclude that, regardless of
the meaning of § 54-56d (k), the defendant has not estab-
lished that he was deprived of his constitutional rights,
or otherwise harmed, by the court’s failure to ask him
personally whether he wanted to stipulate to his compe-
tency, and thereby waive the reconsideration hearing.
Section 54-56d codifies the constitutional standard
for legal competency and establishes the procedure for
determining whether a defendant is competent to stand
trial. State v. Dort, 315 Conn. 151, 170, 106 A.3d 277
(2014). This statutory scheme includes procedures for
initial competency evaluations as well as procedures
for determining whether a defendant who has been
found incompetent to stand trial has been restored to
competency. In particular, subsection (e) of § 54-56d,
which governs the initial competency hearing, states in
relevant part: ‘‘A defendant and the defendant’s counsel
may waive the court hearing only if the examiners, in
the written report, determine without qualification that
the defendant is competent. . . .’’ (Emphasis added.)
By contrast, subsection (k), which governs competency
reconsideration hearings, states in relevant part: ‘‘The
[reconsideration] hearing may be waived by the defen-
dant only if the report indicates that the defendant is
competent. . . .’’ (Emphasis added.)
The defendant argues that because ‘‘the word ‘defen-
dant’ as used in subsection (e) refers to the accused
person rather than his ‘counsel,’ the use of the word
‘defendant’ in subsection (k) obviously has the same
meaning.’’ Nevertheless, assuming arguendo that the
distinction noted by the defendant is meaningful and
that the court then failed to comply strictly with § 54-
56d (k), the record in this case does not establish that
the court’s failure deprived the defendant of his consti-
tutional rights or otherwise harmed him. The purpose
of § 54-56d is to ensure that the defendant is not tried,
convicted, or sentenced while legally incompetent, and
the defendant has not established that he was tried
and convicted while legally incompetent. For all of the
reasons discussed in part I C of this opinion, we con-
clude that the defendant has failed to establish that the
court violated his constitutional rights by finding him
competent to stand trial at the second reconsideration
hearing. Similarly, for all the reasons discussed in part
I D of this opinion, we conclude that the defendant has
failed to establish that there was a reasonable doubt
during trial that he was competent.
Therefore, because the defendant has failed to estab-
lish that this purported procedural error was ‘‘so harm-
ful that a failure to reverse the judgment would result
in manifest injustice,’’ he has failed to meet the exacting
standard for reversal under the plain error doctrine.
(Internal quotation marks omitted.) State v. Myers,
supra, 290 Conn. 289.
C
The defendant next seeks Golding and plain error
review of his claim that the court erroneously found him
competent to stand trial at the second reconsideration
hearing based on the third competency report. Specifi-
cally, the defendant argues that the court should have
conducted an evidentiary hearing to explore ‘‘the trou-
bling question of how the defendant’s mental health
diagnosis and treatment could change so drastically
between the first competency hearing and the final
reconsideration hearing.’’ The state responds that the
court was not required to conduct an evidentiary hear-
ing because the third competency report, which was
uncontested, provided ample evidence that the defen-
dant was competent to stand trial. We conclude that
although the defendant’s claim is reviewable under the
first and second prongs of Golding, the defendant is
not entitled to reversal under the third prong of Golding
or the plain error doctrine because he failed to establish
that the court’s finding of competency at the second
reconsideration hearing violated his constitutional
rights or constitutes a manifest injustice requiring
reversal.
‘‘The standard we use to determine whether a defen-
dant is competent under state law to stand trial . . .
is whether [the defendant] has sufficient present ability
to consult with his lawyer with a reasonable degree of
rational understanding—and whether he has a rational
as well as factual understanding of the proceedings
against him.’’ (Citations omitted; internal quotation
marks omitted.) State v. Dort, supra, 315 Conn. 170;
accord General Statutes § 54-56d (a) (‘‘a defendant is
not competent if the defendant is unable to understand
the proceedings against him or her or to assist in his
or her own defense’’); Drope v. Missouri, 420 U.S. 162,
171, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975) (a defendant
is not competent if his ‘‘mental condition is such that
he lacks the capacity to understand the nature and
object of the proceedings against him, to consult with
counsel, and to assist in preparing his defense’’). Our
courts have a ‘‘constitutional obligation, under the due
process clause, to undertake an independent judicial
inquiry . . . into a defendant’s competency to stand
trial . . . whenever [there exists] specific factual alle-
gations that, if true, would constitute substantial evi-
dence of mental impairment. . . . Substantial evidence
is a term of art. Evidence encompasses all information
properly before the court, whether it is in the form of
testimony or exhibits formally admitted or it is in the
form of medical reports or other kinds of reports that
have been filed with the court. Evidence is substantial
if it raises a reasonable doubt about the defendant’s
competency. . . . The trial court should carefully
weigh the need for [an evidentiary] hearing in each
case, but this is not to say that it should be available
on demand. The decision to grant a hearing requires
the exercise of sound judicial discretion.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Dort, supra, 170–71.
The thrust of the defendant’s argument is that
because the court knew that he had been diagnosed
previously with psychiatric conditions and prescribed
psychiatric medications, it was required to hold an evi-
dentiary hearing to explore ‘‘the dramatic change in
the defendant’s diagnosis and the total cessation of
medication.’’ As a threshold matter, it is important to
emphasize that mental illness is not the legal equivalent
of incompetency. State v. DeAngelis, 200 Conn. 224,
230, 511 A.2d 310 (1986) (‘‘Competence to stand trial,
however, is not defined in terms of mental illness. An
accused may be suffering from a mental illness and
nonetheless be able to understand the charges against
him and to assist in his own defense . . . .’’); see also
Drope v. Missouri, supra, 420 U.S. 180 (‘‘[t]here are, of
course, no fixed or immutable signs which invariably
indicate the need for further inquiry to determine fitness
to proceed’’). ‘‘The touchstone of competency, rather,
is the ability of the defendant to understand the pro-
ceedings against him and to assist in his own defense.’’
Taylor v. Commissioner of Correction, 284 Conn. 433,
452, 936 A.2d 611 (2007).
In the present case, the court found that the defen-
dant was competent to stand trial based on the third
competency report, in which Cotterell described in
detail the aspects of the defendant’s behavior that indi-
cated that he had a capacity to understand the nature
of the proceedings against him and to assist in his own
defense. For example, in the conclusions and recom-
mendations section of the report, Cotterell described
how the defendant, inter alia, ‘‘is able to pay attention
to his environment . . . and the rules of his status.
. . . He is able to communicate when he wants, and
he can use appropriate vocabulary and grammar. He can
listen to what others tell him and understand routine
instructions and guidance. . . . His long and short-
term memory functions are intact. If he wants some-
thing, he can make a plan to get it and then carry out
that plan. He can show initiative if he is sufficiently
motivated. He is able to work with others when he
perceives that he will receive a benefit from that interac-
tion. . . . He can and does pay attention to what is
going on around him. . . . He can bring information
or requests to the attention of others. . . . He knows
what he wants and he can identify things that would
help him to improve his situation. Sometimes, he makes
choices that are maladaptive, immature, and impulsive.
However, he is always aware of his options, even if he
chooses unwisely.’’
Cotterell also explained that some of the negative
aspects of the defendant’s presentation were due to the
defendant malingering to avoid the consequences of his
legal situation.9 This was not an unexpected diagnosis
either; the prior competency reports also intimated that
the defendant might be malingering. For example, the
first and second competency reports noted that while
incarcerated the defendant had a habit of threatening
suicide or engaging in self-injurious or bizarre behavior
in an attempt to change his placement to a more desir-
able housing block. The first competency report, while
concluding that the defendant’s behavior during inter-
views was indicative of psychiatric issues, also
acknowledged that ‘‘there was a volitional element to
his refusal to participate in the interview process.’’ Simi-
larly, the second competency report observed that there
was a ‘‘volitional component to [the defendant’s] pre-
sentation’’ and that ‘‘[i]t appears that [the defendant]
knows more than he is willing to admit.’’10 According
to the second competency report, the defendant’s
behavior ‘‘suggested that he was trying to find a way to
avoid facing the implications of his charges.’’ Cotterell’s
conclusion in the third competency report that the
defendant was both competent to stand trial and malin-
gering, therefore, was not as dramatic and inexplicable
as suggested by the defendant.
Finally, at the second reconsideration hearing,
defense counsel, who originally moved to have the
defendant’s competency evaluated, did not contest the
findings of the third competency report or express any
concerns about his client’s competency to stand trial.
See State v. Ouellette, 271 Conn. 740, 754, 859 A.2d 907
(2004) (‘‘[a]lthough it is true that the defendant required
treatment to restore him to competency, at no time
after the evaluation team rendered its conclusion that
the defendant was competent did defense counsel, the
state or the trial court express any concern whatsoever
about the defendant’s competence’’); United States v.
Kirsh, 54 F.3d 1062, 1071 (2d Cir. 1995) (‘‘A failure by
trial counsel to indicate that the defendant had any
difficulty in assisting in preparation or in comprehend-
ing the nature of the proceedings ‘provides substantial
evidence of the defendant’s competence.’ ’’).
In sum, based on the totality of the information before
the court at the second reconsideration hearing, we
conclude that there was an adequate factual basis for
the court to determine that the defendant was compe-
tent to stand trial. Additionally, we conclude that the
court was not required to conduct an evidentiary hear-
ing at the second reconsideration hearing because there
was not substantial evidence that the defendant still
lacked legal capacity. Therefore, the defendant has
failed to meet the third prong of Golding as well as
the stringent standard for relief pursuant to the plain
error doctrine.
D
Finally, the defendant seeks Golding and plain error
review of his claim that the court violated his due pro-
cess rights by failing to order, sua sponte, a nunc pro
tunc competency hearing to evaluate his competency at
trial in light of his posttrial conduct between December,
2013 and April, 2014.11 We conclude that the defendant
is not entitled to reversal under Golding or the plain
error doctrine because he has not established that the
court’s failure to order, sua sponte, a nunc pro tunc
competency hearing violated his constitutional rights
or constitutes a manifest injustice requiring reversal.
The following additional facts are relevant to this
claim. On December 12, 2013, the defendant was sched-
uled for sentencing. When court opened that day, the
court observed the defendant’s absence. A judicial mar-
shal then explained that while the defendant was being
transported to the courthouse, ‘‘he defecated on himself
in the back of the transport van’’ and was, therefore,
transported back to the correctional facility. The court
and counsel decided to proceed with the hearing on
the defendant’s posttrial motions and to reschedule the
defendant’s sentencing. After the court heard argument
on, and denied, the defendant’s motion for a new trial
and motion to vacate, defense counsel moved to have
the defendant evaluated pursuant to General Statutes
§ 17a-566.12 Defense counsel explained that he and
cocounsel had visited the defendant the prior week, at
which time the defendant ‘‘exhibited certain behaviors,
which concerned us . . . .’’13 Specifically, defense
counsel stated that the defendant had ‘‘made certain
statements,’’ that he ‘‘had a different presentation than
he did during the trial,’’ and that his ‘‘psychiatric condi-
tion appears to be more prevalent than it did at times
during the trial . . . .’’ The court granted defense coun-
sel’s motion and ordered that the defendant be
evaluated.
On January 13, 2014, the clinical team informed the
court that they had attempted to evaluate the defendant
on two occasions but he had refused to meet with them.
The defendant was present at the next court hearing
on January 31, 2014. When the court explained to the
defendant that a competency evaluation had been
ordered, the defendant initially seemed confused about
what the court was saying, but ultimately he agreed to
participate in a competency evaluation.14
On February 28, 2014, the court held a hearing con-
cerning a motion to quash a subpoena for the defen-
dant’s mental health records, which was filed on behalf
of the Department of Mental Health and Addiction Ser-
vices. The court denied the motion because the defen-
dant had waived his confidentiality in the records at
the prior hearing. See footnote 14 of this opinion. The
court stated that while the defendant ‘‘does have some
form of a mental disability,’’ it was ‘‘not sure that it’s
a competency disability.’’ The court entered another
order for a competency evaluation of the defendant.
While discussing the appropriate continuance date with
counsel, the defendant interjected and the following
exchange occurred:
‘‘The Defendant: I’ll plead guilty of all charges.
How’s that?
‘‘The Court: You’ve already had a trial, sir. You’ve
already been found guilty of all charges.
‘‘The Defendant: Well, I plead guilty all over again.
‘‘The Court: I don’t think you—
‘‘The Defendant: Have this conversation?
‘‘The Court: —can plead guilty after you’ve been
found guilty.
‘‘The Defendant: Oh, yes I could if you’re going the
speed of light, you can.
‘‘The Court: Well, you’ve already been found guilty
by a jury and all we have to do now is sentence you,
sir. And if you want to agree to the sentence, that’s one
thing. But I don’t think—
‘‘The Defendant: Yes, I agree to the sentence.
‘‘The Court: I don’t think you’re going to agree to the
sentence the state wants.
‘‘The Defendant: Why it doesn’t make sense because
you’re on that side and I’m on this side.
‘‘The Court: That’s the way it works here. All right.
So, we’re going to have the 22nd of April, correct?
‘‘[The State’s Attorney]: The 22nd of April, that’s fine.
‘‘The Court: Yes.
‘‘[The State’s Attorney]: That’s fine with the state.
‘‘The Court: Thank you.
‘‘The Defendant: I want to save my nuts before
anything.
‘‘The Court: It’s too late to plead. The jury’s already
found you guilty, sir. We are adjourned. Thank you.’’
On April 23, 2014, Cotterell submitted a competency
report, in which he concluded that the defendant ‘‘does
not at this time have a serious mental disease or defect
that necessitates further placement at [a treatment facil-
ity],’’ and recommended that the defendant ‘‘be sen-
tenced in accordance with his conviction.’’ The
defendant did not challenge Cotterell’s report and was
sentenced on April 28, 2014. During the sentencing hear-
ing, the defendant engaged in argumentative behavior.
As the court imposed the defendant’s sentence, the
defendant’s interruptions and insults escalated. Eventu-
ally, the court ordered him to be removed from the
courtroom, found him in contempt of court, and sen-
tenced him for his contempt.15
It is well established that ‘‘[e]ven when a defendant
is competent at the commencement of his trial, a trial
court must always be alert to circumstances suggesting
a change that would render the accused unable to meet
the standards of competence to stand trial.’’ (Internal
quotation marks omitted.) State v. Johnson, 253 Conn.
1, 21, 751 A.2d 298 (2000). ‘‘[W]hen a reasonable doubt
concerning the defendant’s competency is raised, the
trial court must order a competency examination.’’
(Internal quotation marks omitted.) Id. In certain cir-
cumstances, a court may even be required to hold a
nunc pro tunc competency hearing to ensure that the
defendant was competent during an earlier proceeding.
Nevertheless, in general, nunc pro tunc competency
determinations are disfavored because there is often a
risk that the post hoc reconstruction of the defendant’s
mental state will be unduly speculative and inherently
unreliable. See Drope v. Missouri, supra, 420 U.S. 183
(noting inherent difficulties of nunc pro tunc compe-
tency determinations under even the most favorable
circumstances); Pate v. Robinson, 383 U.S. 375, 387, 86
S. Ct. 836, 15 L. Ed. 2d 815 (1966) (same); Dusky v.
United States, 362 U.S. 402, 403, 80 S. Ct. 788, 4 L. Ed.
2d 824 (1960) (same); Gold v. Warden, 222 Conn. 312,
317–18 and n.9, 610 A.2d 1153 (1992) (same); State v.
Snook, 210 Conn. 244, 253, 555 A.2d 390 (same), cert.
denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d
603 (1989).
‘‘The touchstone of competency . . . is the ability
of the defendant to understand the proceedings against
him and to assist in his own defense.’’ Taylor v. Com-
missioner of Correction, supra, 284 Conn. 452. There-
fore, a failure by defense counsel to indicate that the
defendant had any difficulty in comprehending the
nature of the proceedings or in assisting in his own
defense provides substantial evidence of the defen-
dant’s competence. United States v. Kirsh, supra, 54
F.3d 1071; see State v. Dort, supra, 315 Conn. 172; State
v. Ouellette, supra, 271 Conn. 754. Similarly, ‘‘[a] trial
court’s opinion . . . of the competency of a defendant
is highly significant’’ because ‘‘[t]he trial judge is in a
particularly advantageous position to observe a defen-
dant’s conduct during a trial and has a unique opportu-
nity to assess a defendant’s competency.’’ (Internal
quotation marks omitted.) State v. Ducharme, 134
Conn. App. 595, 602, 39 A.3d 1183, cert. denied, 305
Conn. 905, 44 A.3d 181 (2012); see also State v. Ouellette,
supra, 754. Finally, it is significant when the defendant
appears to be competent throughout the course of trial.
United States v. Vamos, 797 F.2d 1146, 1150 (2d Cir.
1986) (‘‘failure to conduct a full competency hearing is
not a ground for reversal when the defendant appears
competent during trial’’); see State v. Caracoglia, 95
Conn. App. 95, 108–109, 895 A.2d 810 (holding that
defendant was competent to waive right to assistance
of counsel because his conduct at trial indicated that
he was, in fact, competent to stand trial), cert. denied,
278 Conn. 922, 901 A.2d 1222 (2006).
As a threshold matter, we conclude that the defen-
dant’s claim that his due process rights were violated
by the court’s failure to order sua sponte a nunc pro
tunc competency hearing is reviewable under Golding
because there is an adequate record for review and this
claim is of a constitutional magnitude. After careful
review of the record, however, we conclude that the
defendant’s posttrial conduct did not create a reason-
able doubt, in hindsight, as to his competency at trial.
Thus, the court was not obligated to order sua sponte
a nunc pro tunc competency hearing to reevaluate the
defendant’s competency at trial. Therefore, because the
defendant has not established that the court’s failure to
order, sua sponte, a nunc pro tunc competency hearing
violated his due process rights or constitutes a manifest
injustice requiring reversal, he is not entitled to reversal
under Golding or the plain error doctrine.
Our conclusion is first based on the fact that defense
counsel, who represented the defendant for approxi-
mately two years and previously had sought compe-
tency evaluations for the defendant, never raised
concerns about his client’s competency to stand trial
after he was found to be competent at the second recon-
sideration hearing. Defense counsel did raise concerns
about the defendant’s competency to be sentenced when
the defendant’s presentation became more argumenta-
tive posttrial. Notably, when defense counsel moved
for a competency hearing posttrial, he supported that
motion by highlighting the difference between the
defendant’s presentation posttrial and his presentation
at trial. Specifically, after the defendant’s conduct pre-
vented him from being transported to the courthouse
on December 12, 2013, defense counsel observed that
the defendant had ‘‘had a different presentation than
he did during the trial’’ and the defendant’s ‘‘psychiatric
condition appears to be more prevalent than it did at
times during the trial . . . .’’
It is also significant that during the trial the court did
not voice any concerns about the defendant’s compe-
tency to stand trial. Quite to the contrary, the court
expressly stated that it was ‘‘not concerned about his
behavior in the courtroom’’ and observed that ‘‘[the
defendant] has been very well behaved in court.’’
Finally, it is significant that during the trial, the defen-
dant appeared to be competent. We acknowledge that
the defendant engaged in disruptive behavior on two
occasions during trial, but neither the defendant’s
behavior nor his responses to the court’s admonitions
indicated a lack of competency. On the first day of trial,
the defendant flushed his jumpsuit down the toilet and
urinated on the floor. When asked by the court about
this behavior, he was able to articulate why he acted
that way—i.e. because the courtroom marshals ‘‘put
handcuffs on me in a—in a secured cell where they
ain’t supposed to do that.’’ On the second day of trial, the
defendant was again disruptive when he called defense
counsel ‘‘an idiot’’ for not conducting a redirect exami-
nation of him. When the court admonished the defen-
dant for his comment, however, he responded
appropriately by recognizing that ‘‘[he] kind of lost a
little control’’ and by apologizing for his remark.
Although the defendant’s conduct at trial might be
reflective of the impulsivity described by Cotterell, it
does not indicate a lack of competency.
In sum, there was significant evidence at trial that
the defendant was competent. The defendant’s posttrial
conduct did not call into question any of this contempo-
raneous evidence of competency. As defense counsel
observed, the defendant’s presentation during and after
trial was different. Therefore, because the defendant
has not established that the court’s failure to order sua
sponte a nunc pro tunc competency hearing violated
his due process rights or constitutes a manifest injustice
requiring reversal, we conclude that he is not entitled
to reversal under Golding or the plain error doctrine.
II
We next address the defendant’s claims concerning
the consolidation of the sexual assault information and
the escape information for trial. First, the defendant
claims that the court abused its discretion by granting
the state’s motion for consolidation because the evi-
dence relating to each information was not fully cross
admissible and a Boscarino factor16 was present. Sec-
ond, the defendant claims that the court unduly bur-
dened his constitutional right to remain silent in the
sexual assault case by joining that case, in which he
did not testify, with the escape case, in which he did
testify. We reject the defendant’s claims.17
The following additional facts are relevant to these
claims. On September 19, 2013, five days before the start
of jury selection, the defendant filed an anticipatory
objection to joinder of informations for trial and the
state filed a revised motion for consolidation.18 In the
revised motion to consolidate, the state argued that the
evidence in the two cases was cross admissible19 and
that no Boscarino factors were present. In his anticipa-
tory objection to the state’s motion, the defendant
argued that the motion to consolidate was untimely and
that joinder would substantially prejudice his right to
a fair trial, including his decision as to whether to testify.
On September 23, 2013, the court held a hearing at
which it addressed the state’s motion to consolidate.
On September 24, 2013, the court granted the state’s
motion.
A
The defendant claims that the court abused its discre-
tion by joining the sexual assault information and
escape information for trial because the evidence was
not cross admissible and a Boscarino factor was pre-
sent in his trial. We disagree.
We begin our analysis with a review of the law govern-
ing pretrial motions for joinder pursuant to Practice
Book § 41-19. ‘‘[I]n deciding whether to [join informa-
tions] for trial, the trial court enjoys broad discretion,
which, in the absence of manifest abuse, an appellate
court may not disturb. . . . [W]hen charges are set
forth in separate informations, presumably because
they are not of the same character, and the state has
moved in the trial court to join the multiple informations
for trial, the state bears the burden of proving that
the defendant will not be substantially prejudiced by
joinder pursuant to Practice Book § 41-19. . . . On
appeal, however, the burden shifts to the defendant to
show that joinder was improper by proving substantial
prejudice that could not be cured by the trial court’s
instructions to the jury . . . .’’ (Citations omitted; foot-
note omitted; internal quotation marks omitted.) State
v. Crenshaw, 313 Conn. 69, 83, 95 A.3d 1113 (2014).
Substantial prejudice ‘‘means something more than
that a joint trial will be less than advantageous to the
defendant,’’ and it requires the defendant to ‘‘[show]
that any prejudice from joinder may be beyond the
curative power of the court’s instructions.’’ (Internal
quotation marks omitted.) State v. Chance, 236 Conn.
31, 51, 671 A.2d 323 (1996). When resolving whether a
defendant was substantially prejudiced, we consider
whether the evidence was cross admissible and whether
any of the Boscarino factors were present. State v.
Crenshaw, supra, 313 Conn. 83. When ‘‘the evidence
would have been cross admissible in different trials
. . . we need not determine whether any of the Boscar-
ino factors was present.’’ Id., 83. ‘‘[When] evidence of
one incident can be admitted at the trial of the other
[incident], separate trials would provide the defendant
[with] no significant benefit. . . . [U]nder such circum-
stances, the defendant would not ordinarily be substan-
tially prejudiced by joinder of the offenses for a single
trial.’’ (Internal quotation marks omitted.) Id., 83–84;
see, e.g., State v. Atkinson, 235 Conn. 748, 765, 670 A.2d
276 (1996) (defendant was not substantially prejudiced
by joinder of murder charge and escape charge where
evidence concerning the escape charge would be admis-
sible in a separate murder trial as evidence of conscious-
ness of guilt). ‘‘When evidence is not cross admissible,
several factors identified in State v. Boscarino, 204
Conn. 714, 721–24, 529 A.2d 1260 (1987), are used to
determine whether the defendant has suffered substan-
tial prejudice. These factors include: (1) whether the
charges involve discrete, easily distinguishable factual
scenarios; (2) whether the crimes were of a violent
nature or concerned brutal or shocking conduct on the
defendant’s part; and (3) the duration and complexity of
the trial. . . . If any or all of these factors are present, a
reviewing court must decide whether the trial court’s
jury instructions cured any prejudice that might have
occurred.’’ (Internal quotation marks omitted.) State v.
Crenshaw, supra, 83–84 n.8.
With the foregoing legal principles in mind, we first
address whether the evidence of the sexual assault and
the escape was cross admissible. Evidence is cross
admissible for the purposes of joinder when evidence
from one information would be admissible in a separate
trial on the other information, and vice versa. In the
present case, evidence of the defendant’s attempt to
escape custody would have been admissible as evidence
of consciousness of guilt in a separate trial on the sexual
assault information. See State v. Figueroa, 257 Conn.
192, 196, 777 A.2d 587 (2001) (‘‘[f]light when unex-
plained, tends to prove a consciousness of guilt’’ [inter-
nal quotation marks omitted]); State v. Atkinson, supra,
235 Conn. 765 (‘‘[e]vidence concerning the escape
charge could properly have been admitted in a separate
trial for the murder charge because escape indicates
consciousness of guilt’’). Likewise, evidence that the
defendant was in custody and charged with a felony
would have been admissible in a separate trial on the
escape information because those are elements of the
offense. See General Statutes § 53a-171 (‘‘[a] A person is
guilty of escape from custody if such person [1] escapes
from custody . . . . [b] If a person has been arrested
for, charged with or convicted of a felony, escape from
such custody is a class C felony . . . .’’). However, the
details surrounding the sexual offense charges—i.e. the
fact that the defendant lured an eleven year old into
his apartment so that he could sexually assault her by
vaginal penetration—might not have been admissible
in a separate trial on the escape information.20 See Conn.
Code Evid. § 4-3. It is unclear from our Supreme Court’s
precedent whether evidence must be fully cross admis-
sible to permit joinder. Compare State v. Crenshaw,
supra, 313 Conn. 84 (‘‘[w]e consistently have found join-
der to be proper if we have concluded that the evidence
of other crimes . . . would have been cross admissible
at separate trials’’ [emphasis added; internal quotation
marks omitted]) with State v. Atkinson, supra, 765
(‘‘Where evidence of one incident can be admitted at
the trial of the other [incident], separate trials would
provide the defendant no significant benefit. It is clear
that, under such circumstances, the defendant would
not ordinarily be substantially prejudiced by joinder
of the offenses for a single trial.’’ [Emphasis altered;
internal quotation marks omitted.]).
Assuming arguendo that the evidence in the two cases
must be fully cross admissible and was not in this case,
we next address whether any of the Boscarino factors
were present at the consolidated trial. See State v. Cren-
shaw, supra, 313 Conn. 83 n.8. The defendant argues
that the second Boscarino factor was present at his
consolidated trial and he suffered substantially preju-
dice in the sexual assault case as a result.21 In particular,
he argues that ‘‘[o]nce the cases were joined, the jury
was more likely to conclude (based on evidence of the
attempt to escape)22 that the defendant was prone to
physical violence and thus more likely to have used
physical force in committing an ‘aggravated’ sexual
assault of a minor.’’ (Footnote added.) The defendant’s
analysis misapplies the second Boscarino factor. The
second Boscarino factor focuses on whether the brutal
or shocking nature of the defendant’s conduct in one
case might compromise the jury’s ability to consider
fairly the charges against him in the other case. State
v. Boscarino, supra, 204 Conn. 723. In the present case,
it is undisputed that the defendant’s attempt to escape
was not of a brutal or shocking nature capable of com-
promising the jury’s ability to consider fairly the charges
against him in the sexual assault case.23
Moreover, the defendant’s analysis also overlooks
the fact that at the time the state filed its motion for
consolidation, neither the parties nor the court knew
that the victim would testify that the defendant used
some physical force to sexually assault her.24 When
reviewing a trial court’s pretrial decision to join cases
we focus on the trial court’s understanding of what
evidence could be presented at trial, not what evidence
was actually presented at trial.25 The record reveals
that at the time the state filed its motion to consolidate,
the primary basis for the sexual offense charges was
the age difference between the defendant and the victim
and the fact that the defendant used deception to lure
the victim to his apartment.26 The state did not intend
to, nor did it need to, present evidence of physical force
to prove ‘‘aggravated’’ sexual assault of a minor. Thus,
it was reasonable for the court to conclude that any
risk that the jury would improperly consider evidence
that the defendant used some physical force in his
attempt to escape in its deliberations on the aggravated
sexual assault of a minor charge could be cured with
a proper limiting instruction. See State v. Chance, supra,
236 Conn. 38.
‘‘[W]hether a joint trial will be substantially prejudi-
cial to the defendant’s rights means something more
than that it will be less advantageous to [him].’’ (Internal
quotation marks omitted.) State v. Perez, 147 Conn.
App. 53, 98 n.42, 80 A.3d 103 (2013), aff’d, 322 Conn.
118, 139 A.3d 654 (2016); accord State v. Chance, supra,
236 Conn. 51–52. Because the defendant has failed to
establish that he was substantially prejudiced by a con-
solidated trial, we conclude that the court did not abuse
its discretion by granting the state’s motion to con-
solidate.
B
The defendant’s final claim concerning the consolida-
tion of the informations for trial is that the court violated
his right to remain silent, as guaranteed by the fifth and
fourteenth amendments to the federal constitution,27 by
denying his motion for a new trial after he testified as
to the escape charge but remained silent as to the sexual
assault charges. Specifically, the defendant argues that
‘‘the improper joinder effectively undermined [his] val-
ued right to remain silent—more precisely, his right to
insure that no adverse inferences were drawn from the
exercise of that constitutional privilege.’’ We disagree.
The following additional facts are relevant to this
claim. On September 19, 2013, the defendant filed an
anticipatory objection to the state’s motion to consoli-
date, in which he argued, inter alia, that joinder would
substantially prejudice his right to a fair trial, including
his decision to testify. On September 23, 2013, the court
held a hearing concerning the state’s motion to consoli-
date. At that hearing, the defendant never addressed
how joinder would affect his decision to testify as to
the sexual assault charges or the escape charges. Trial
commenced on October 9, 2013. In its preliminary
instructions to the jury, the court explained that the
trial would involve ‘‘two separate informations’’ that
had been ‘‘consolidated for purposes of the trial only.’’
The court further emphasized that the two informations
must be considered separately. That day, the state pre-
sented evidence pertaining only to the sexual assault
charges.
At the start of the second day of trial, the court
reminded the jurors that ‘‘there are two separate sets
of factors that are being considered, two separate infor-
mations’’ and that they were ‘‘still receiving information
concerning the first set, the allegations of what hap-
pened’’ at the location where the victim was sexually
assaulted. After presenting the testimony of two more
witnesses, the state rested in the sexual assault case.
The court then reminded the jurors that ‘‘the defendant
in this case is charged in two separate informations’’
and that ‘‘the state just concluded the evidence on the
first information . . . .’’ The court further reiterated
that ‘‘[t]he fact that the cases were consolidated for
trial does not mean anything other than they were con-
solidated for trial. It’s the same defendant in both. And
. . . the defendant is entitled to and has to be given
separate consideration for each.’’ The jury was then
excused for a recess.
When court resumed, the court asked the defendant
outside the presence of the jury whether he would be
testifying ‘‘for the first case.’’ The defendant responded
that he would not, and the court canvassed the defen-
dant on his election not to testify. The jury then reen-
tered the courtroom, and the defense rested as to the
sexual assault case. When the parties were ready to
proceed with the escape case, the court reminded the
jurors that ‘‘this is a separate count’’ and that the evi-
dence being presented related to only the second infor-
mation. After the state called two judicial marshals as
witnesses and had an evidentiary stipulation read to
the jury, it rested. The defendant then indicated that
he wished to testify concerning the escape case, and
the court canvassed the defendant concerning that deci-
sion. The defendant did not renew his objection to the
consolidation of the cases for trial based on his decision
to testify as to the escape charge but not the sexual
assault charges. After the defendant testified concern-
ing the escape charge, the defense rested.
On October 11, 2013, the court charged the jury.
Throughout the charge, the court emphasized that the
trial consisted of two separate informations that had
been ‘‘consolidated for the convenience of trial,’’ and
that ‘‘the defendant is entitled to and must be given
. . . a separate and independent determination of
whether he is guilty or not guilty as to each of the
counts.’’ Concerning the defendant’s decision to testify
concerning the escape charge but not the sexual assault
charges, the court gave the following instruction:
‘‘There are two separate sets of allegations, the [sexual
assault] charges and the [escape] charges. The defen-
dant has not testified in the [sexual assault] case. An
accused person has the option to testify or not to testify
at the trial. He is under no obligation to testify and he
has a constitutional right not to testify. You must draw
no unfavorable inferences from the defendant’s choice
not to testify, that is with reference to the [sexual
assault] charges.’’
After his conviction, the defendant filed a motion for
a new trial based, in part, on the consolidation of the
two cases. On December 12, 2013, the court held a
hearing on the defendant’s motion for a new trial. At that
hearing, the defendant argued that the consolidation of
the cases ‘‘impacted [his] testimony in a negative way’’
because ‘‘there is at least a possibility that one or more
of the jurors held it against [him] for not testifying on
that second trial.’’
‘‘It long has been recognized that joinder of unrelated
criminal charges can cause [substantial] prejudice when
it ‘embarrasses or confounds an accused in making his
defense.’ ’’ State v. Perez, 322 Conn. 118, 134, 139 A.3d
654 (2016). However, ‘‘[substantial] prejudice will not
invariably result from a decision to testify selectively.
Consequently, [a]n accused’s election to testify on some
but not all of the charges on trial does not automatically
require a severance. . . . Rather, the matter remains
within the trial court’s discretion . . . .’’ (Citation omit-
ted; internal quotation marks omitted.) Id., 135. ‘‘[N]o
need for a severance exists until the defendant makes
a convincing showing that he has both important testi-
mony to give concerning one count and [a] strong need
to refrain from testifying on the other. In making such
a showing, it is essential that the defendant present
enough information—regarding the nature of the testi-
mony he wishes to give on one count and his reasons
for not wishing to testify on the other—to satisfy the
court that the claim of prejudice is genuine and to
enable it intelligently to weigh the considerations of
economy and expedition in judicial administration
against the defendant’s interest in having a free choice
with respect to testifying.’’ (Internal quotation marks
omitted.) Id., 135–36. On appeal, the defendant bears
the burden of proving that joinder substantially preju-
diced his right to remain silent. See State v. Crenshaw,
supra, 313 Conn. 83. ‘‘[T]his means something more
than that a joint trial [was] less than advantageous to
the defendant,’’ and it requires the defendant to ‘‘[show]
that any prejudice from joinder may be beyond the
curative power of the court’s instructions.’’ (Internal
quotation marks omitted.) State v. Chance, supra, 236
Conn. 51; accord State v. Perez, supra, 134–35.
In the present case, the defendant has failed to show
that the consolidation of the two cases for trial substan-
tially prejudiced his right to remain silent. The jurors
were certainly aware that the trial consisted of two
separate and distinct cases that were joined only for
judicial economy. They were also undoubtedly aware
that they must consider those cases in a separate and
distinct manner. Indeed, the court expressly instructed
the jurors that they could not commingle the evidence
from the two cases or draw an unfavorable inference
from the defendant’s decision not to testify as to the
sexual assault charges. It is well established that ‘‘[t]he
jury is presumed, in the absence of an indication to the
contrary, to have followed the instructions of the trial
court.’’ (Internal quotation marks omitted). State v.
Chance, supra, 236 Conn. 51.
Therefore, we conclude that the defendant has failed
to establish that he was substantially prejudiced by
the consolidation of the sexual assault information and
escape information for trial.
III
The defendant next seeks Golding review of his claim
that the court violated his rights under the fourth
amendment to the United States constitution by denying
his motion to suppress evidence obtained during a
search of his apartment.28 We conclude that the defen-
dant’s claim is unreviewable under the first prong of
Golding because the record is inadequate for review.
The following additional facts are relevant to this
claim. On August 31, 2011, officers searched the defen-
dant’s apartment with his written consent. At the time
the defendant gave his consent for the search, he was
being detained for investigative purposes. He was not
given Miranda warnings29 prior to giving consent. Dur-
ing the search of the defendant’s apartment, officers
found a small packet of lubricant in the trash in the
defendant’s bathroom and a corner piece of foil that
had been torn from the packet of lubricant in the defen-
dant’s bedroom.
On September 19, 2013, the defendant filed a motion
to suppress ‘‘any and all statements alleged to have
been made by the defendant to or in the presence of
any law enforcement authorities and to further suppress
all evidence, tangible and intangible, obtained directly
or indirectly derived from said statements.’’ On October
7, 2013, the court conducted an evidentiary hearing
regarding the defendant’s motion to suppress. At the
hearing, the defendant argued, inter alia, that the offi-
cers violated his right against self-incrimination under
the fifth amendment to the United States constitution
by asking him to sign the consent to search form while
in custody. The defendant reasoned that the officers’
request for consent constituted an ‘‘interrogation’’ for
the purposes of Miranda because ‘‘the police should
[have known] that asking [the defendant] to sign [the
consent to search] form [was] reasonably likely to elicit
an incriminating response.’’30 Although the defendant
cited the fourth amendment in his motion to suppress,
he did not make any substantive arguments that sup-
pression was required under the fourth amendment in
that motion or at the evidentiary hearing.
On October 8, 2013, the court orally denied the defen-
dant’s motion to suppress. On October 9, 2013, the first
day of trial, the court memorialized its ruling briefly on
the record during a recess. In relevant part, the court
stated: ‘‘There was a motion to suppress that was filed
by defense counsel and I’d given an oral ruling yesterday
that the motion to suppress was denied. There was
consent for the apartment search.’’ The remainder of
the court’s brief oral ruling addressed its denial of the
motion to suppress with respect to the buccal swab
taken from the defendant with his consent. The court
concluded its oral ruling by stating: ‘‘I will put this all
in writing.’’ The court, however, did not issue a written
memorandum of decision. After the defendant’s convic-
tions, the defendant renewed his original suppression
claim in his motion for a new trial, which the court
denied.
On appeal, the defendant now claims that the court
violated his rights under the fourth amendment by deny-
ing his motion to suppress. Specifically, the defendant
claims that the fourth amendment requires law enforce-
ment to provide Miranda warnings before obtaining
consent to search from an individual that is in custody.
Alternatively, the defendant claims that he did not
knowingly and voluntarily consent to the search of his
apartment. Because the defendant failed to preserve
his fourth amendment claim, he seeks Golding review.
‘‘The first Golding requirement is that the record be
adequate to review the alleged claim of [constitutional]
error . . . . The defendant bears the responsibility for
providing a record that is adequate for review of his
claim of constitutional error. If the facts revealed by
the record are insufficient, unclear or ambiguous as to
whether a constitutional violation has occurred, we will
not attempt to supplement or reconstruct the record,
or to make factual determinations, in order to decide
the defendant’s claim.’’ (Citation omitted; internal quo-
tation marks omitted.) State v. Hampton, 293 Conn.
435, 443–44, 988 A.2d 167 (2009).
Although the court orally denied the defendant’s
motion to suppress, it did not issue a written memoran-
dum of decision or sign the transcript of its oral deci-
sion, pursuant to Practice Book § 64-1 (a). ‘‘While we do
not condone the court’s failure to comply with [Practice
Book § 64-1 (a)], and would decline in most instances
to search the transcript to ascertain the factual basis
in support of the trial court’s ruling, we would not
[ordinarily] exalt form over substance if the deficiency
were of a technical nature.’’ (Internal quotation marks
omitted.) State v. Beliveau, 52 Conn. App. 475, 480, 727
A.2d 737, cert. denied, 249 Conn. 920, 733 A.2d 235
(1999). In the present case, however, the inadequacy
of the record is not of a technical nature. The record
is devoid of any specific factual findings by the court
concerning its ruling on the defendant’s motion to sup-
press. Although the court stated that ‘‘[t]here was con-
sent for the apartment search,’’ the defendant did not
contest the validity of his consent in his motion to
suppress or at the suppression hearing. ‘‘[I]t is well
established that as an appellate tribunal, we do not find
facts.’’ State v. Daly, 111 Conn. App. 397, 400, 960 A.2d
1040 (2008), cert. denied, 292 Conn. 909, 973 A.2d 108
(2009). It is not this court’s role to make a determina-
tion, sua sponte, of whether the defendant’s consent to
search was knowing and voluntary and when, if ever,
the defendant received Miranda warnings. It is only
for this court to decide ‘‘whether [the legal conclusions
of the trial court] are legally and logically correct and
whether they find support in the facts set out in the
memorandum of decision [or the signed transcript of
the oral ruling] . . . .’’ State v. Jenkins, 298 Conn. 209,
222, 3 A.3d 806 (2010).
Therefore, because any decision made by us concern-
ing the validity of the defendant’s consent to search
would be entirely speculative without the necessary
factual and legal conclusions furnished by the trial
court, it is unreviewable under the first prong of Gold-
ing. State v. Duteau, 68 Conn. App. 248, 254, 791 A.2d
591 (record inadequate for review of fourth amendment
suppression claim where trial court did not issue memo-
randum of decision, sign the transcript, or make specific
factual findings concerning issues on appeal), cert.
denied, 260 Conn. 939, 835 A.2d 58 (2002); State v. Rios,
30 Conn. App. 712, 715–16, 622 A.2d 618 (1993) (same);
see State v. Beliveau, supra, 52 Conn. App. 481–82 (fifth
amendment claim); see also State v. Young, 76 Conn.
App. 392, 409, 819 A.2d 884 (record inadequate to review
of motion to suppress in-court identification where trial
court did not issue a memorandum of decision, sign
the transcript, or ‘‘make any findings whatsoever
regarding the suggestiveness of the arraignment pro-
ceedings’’), cert. denied, 264 Conn. 912, 826 A.2d
1157 (2003).
IV
The defendant’s final claim on appeal is that the trial
court improperly denied his motion to vacate on the
ground that his convictions and cumulative sentences
for the three sexual offenses violated his right against
double jeopardy, as guaranteed by the fifth and four-
teenth amendments to the United States constitution.31
Specifically, the defendant argues that because sexual
assault in the first degree and risk of injury to a child
are the ‘‘same offense’’ as aggravated sexual assault of
a minor, his convictions for sexual assault in the first
degree and risk of injury should have been vacated
prior to sentencing. The state responds that, although
sexual assault in the first degree and risk of injury are
factually and legally the same offense as aggravated
sexual assault of a minor in the present case, they are
not the ‘‘same offense’’ for the purposes of double jeop-
ardy because the legislature intended to authorize
cumulative punishments for individuals convicted of
aggravated sexual assault of a minor and the charged
predicate offense(s). We agree with the defendant that
his cumulative convictions and sentences for aggra-
vated sexual assault of a minor, sexual assault in the
first degree, and risk of injury to a child violates dou-
ble jeopardy.
A
We begin our analysis by addressing the defendant’s
claim that sexual assault in the first degree and risk of
injury to a child are the ‘‘same offense’’ as aggravated
sexual assault of a minor for double jeopardy purposes.
The double jeopardy clause ‘‘prohibits not only multi-
ple trials for the same offense, but also multiple punish-
ments for the same offense in a single trial. . . . Double
jeopardy analysis in the context of a single trial is a
two-step process. First, the charges must arise out of the
same act or transaction. Second, it must be determined
whether the charged crimes are the same offense. Multi-
ple punishments are forbidden only if both conditions
are met. . . . Traditionally we have applied the
Blockburger test32 to determine whether two statutes
criminalize the same offense, thus placing a defendant
prosecuted under both statutes in double jeopardy:
[W]here the same act or transaction constitutes a viola-
tion of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses
or only one, is whether each provision requires proof
of a fact which the other does not.’’ (Footnote added;
internal quotation marks omitted.) State v. Gonzalez,
302 Conn. 287, 315–16, 25 A.3d 648 (2011). ‘‘In conduct-
ing this inquiry, we look only to relevant statutes, the
information, and the bill of particulars, not to the evi-
dence presented at trial.’’ (Internal quotation marks
omitted.) State v. Palmer, 206 Conn. 40, 52, 536 A.2d
936 (1988).
In the present case, it is undisputed that the sexual
offenses arose out of the same transaction, i.e. the sex-
ual assault of the victim on August 31, 2011. It is also
undisputed that sexual assault in the first degree and
risk of injury to a child are legally the ‘‘same offense’’
as aggravated sexual assault of a minor under the
Blockburger test when, as here, they are charged as
predicate offenses for aggravated sexual assault of a
minor.33 See State v. Greco, 216 Conn. 282, 292, 579 A.2d
84 (1990) (holding that first degree robbery and first
degree burglary are the ‘‘same offense’’ as felony murder
under the Blockburger test when the felony murder
count alleges ‘‘robbery and burglary’’ as predicate
offenses).
Our inquiry continues, however, as ‘‘the Blockburger
test creates only a rebuttable presumption of legislative
intent, [and] the test is not controlling when a contrary
intent is manifest.’’ (Internal quotation marks omitted.)
State v. Bernacki, 307 Conn. 1, 23, 52 A.3d 605 (2012),
cert. denied, U.S. , 133 S. Ct. 1804, 185 L. Ed. 2d
811 (2013). The ‘‘[d]ouble jeopardy protection against
cumulative punishments is only designed to ensure that
the sentencing discretion of the courts is confined to
the limits established by the legislature. . . . Where
. . . a legislature specifically authorizes cumulative
punishment under two statutes, regardless of whether
those two statutes proscribe the same conduct under
Blockburger, a court’s task of statutory construction is
at an end and the prosecutor may seek and the trial
court or jury may impose cumulative punishment under
such statutes in a single trial. . . . The Blockburger
test is a rule of statutory construction, and because it
serves as a means of discerning [legislative] purpose
the rule should not be controlling where, for example,
there is a clear indication of contrary legislative intent.
. . . The language, structure and legislative history of
a statute can provide evidence of this intent.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Greco, supra, 216 Conn. 293; accord Missouri v. Hunter,
459 U.S. 359, 368, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983)
(stating that the Blockburger test ‘‘is not a constitutional
rule requiring courts to negate clearly expressed legisla-
tive intent’’).34
In the present case, the burden is on the state to
rebut the presumption created under the Blockburger
test that aggravated sexual assault of a minor is the
same offense as sexual assault in the first degree and
risk of injury to a child for the purposes of double
jeopardy. State v. Alvaro F., 291 Conn. 1, 13 n.14, 966
A.2d 712, cert. denied, 558 U.S. 882, 130 S. Ct. 200, 175
L. Ed. 2d 140 (2009). In particular, the burden is on the
state to present evidence of clear legislative intent to
specifically authorize cumulative punishments for a
conviction under § 53a-70c and the underlying predicate
offense(s). If this court concludes that it is ambiguous
whether the legislature intended to authorize cumula-
tive punishments, the state cannot prevail. See State v.
Wright, 319 Conn. 684, 692 n.3, 127 A.3d 147 (2015).
When divining legislative intent in the double jeop-
ardy context, our Supreme Court has considered sev-
eral factors, including: (1) whether the statutes were
‘‘designed to protect separate and distinct interests of
society’’; (internal quotation marks omitted) State v.
Bernacki, supra, 307 Conn. 29; see also State v. Greco,
supra, 216 Conn. 295–96; (2) whether the statute in
question references other statutory offenses; State v.
Greco, supra, 294–95; (3) whether the statute in question
‘‘set[s] forth a separate penalty rather than using a multi-
plier of the penalty for another offense’’; id., 294; (4) the
presence of language expressly prohibiting cumulative
punishments; id., 295; (5) the placement of each offense
within the General Statutes; State v. Braswell, 42 Conn.
App. 264, 271, 679 A.2d 407 (1996), appeal dismissed, 243
Conn. 248, 701 A.2d 1057 (1997); and (6) the legislative
history of the challenged statute; State v. Greco,
supra, 296–97.
In the present case, the statutes at issue are designed
to protect the same interests of society; each of the
charged statutory provisions strives to protect children
from inappropriate sexual contact. Section 53a-70c in
particular furthers this purpose by enabling the state
to seek enhanced, mandatory penalties for sexual
offenders of children when the victim is under the age
of thirteen and an enumerated aggravating factor is
present.35 Cf. State v. Greco, supra, 216 Conn. 296–98
(holding that robbery and burglary are not the ‘‘same
offense’’ as felony murder even when they are charged
as predicate offenses because each offense has a dis-
tinct statutory purpose: ‘‘An obvious purpose of the
felony murder statute, or any murder statute, is to pro-
tect human life. . . . In contrast, [t]he basic rationale
[of the robbery statutes] is protection against the terror
of the forcible taking . . . while the primary rationale
of the crime of burglary is protection against invasion
of premises likely to terrorize occupants.’’ [Citations
omitted; internal quotation marks omitted.]).
The state responds that ‘‘while these statutes may
be ‘closely linked,’ the overlap is ‘not determinative’
because the harms targeted [by these statutes] . . .
‘do not necessarily coexist’ in every case.’’ The state
analogizes this case to State v. Wright, supra, 319 Conn.
684. In Wright, our Supreme Court addressed whether
the double jeopardy clause prohibited a defendant from
being convicted and sentenced for two counts of aggra-
vated sexual assault of a minor, which arose from the
same transaction but charged different subsections of
§ 53a-70c. Id., 685–86. It was undisputed in Wright that
the two counts were factually and legally distinct
offenses, and, therefore, that the burden was on the
defendant to rebut the Blockburger presumption. Id.,
690–92. In concluding that the defendant failed to rebut
the Blockburger presumption, the Supreme Court
observed that the two subsections at issue targeted
distinct harms: subsection (1) addresses the abduction
and restraint of child victims, whereas subsection (6)
addresses the targeting of children by strangers that
are sexual predators. Id., 695. Consequently, ‘‘the harms
targeted in the two subdivisions . . . do not necessar-
ily coexist in every aggravated sexual assault of a
minor.’’ Id.
In the present case, the state argues that the three
statutes at issue also target separate and distinct soci-
etal harms: § 53-21 (a) (2) targets ‘‘contact with intimate
parts in a sexual and indecent manner likely to impair
health or morals’’; § 53a-70 (a) (2) targets ‘‘sexual inter-
course when the actor [is] at least two years older’’
than a victim that is under thirteen; and § 53a-70c (a)
(1) targets situations where a ‘‘victim under thirteen
[is] kidnapped or restrained.’’ Because the evils of each
offense ‘‘ ‘do not necessarily coexist’ ’’ in every aggra-
vated sexual assault of a minor prosecution, the state
argues that they cannot be viewed as the same offense
for double jeopardy purposes. The state’s argument,
however, ignores the fact that §§ 53-21 (a) (2) and 53a-
70 (a) (2) are essential elements of § 53a-70c when they
are charged as predicate offenses. Therefore, the harms
targeted by §§ 53-21 (a) (2) and 53a-70 (a) (2) necessar-
ily coexist in every § 53a-70c prosecution in which they
are alleged as predicate offenses, which distinguishes
this case from Wright.
Turning to the next factor, it is unclear from the
language of the relevant statutes whether the legislature
intended to specifically authorize cumulative punish-
ments. As we previously stated, § 53a-70c requires the
state to prove that a predicate offense has been commit-
ted, and, to that end, it expressly identifies § 53-21 (a)
(2) and § 53a-70 as qualifying predicate offenses, which
suggests that they are greater and lesser offenses. Cf.
Garrett v. United States, 471 U.S. 773, 779–81, 105 S.
Ct. 2407, 85 L. Ed. 2d 764 (1985) (finding evidence of
intent to authorize cumulative punishments in the fact
that the statute in question contained no reference to
other statutory offenses). However, General Statutes
§ 53a-35a (3) sets forth a separate and distinct penalty
from other felony offenses for a conviction under § 53a-
70c.36 Our inquiry into the legislature’s intent, however,
is somewhat confounded by the absence of language
expressly prohibiting cumulative punishments for con-
duct that violates § 53a-70c because the legislature has
employed such language in at least nineteen other crimi-
nal statutes,37 including the criminal statutes for aggra-
vated sexual assault in the first degree38 and sexual
assault in the third degree with a firearm.39 ‘‘Since the
legislature has shown that it knows how to bar multiple
punishments expressly when it does not intend such
punishment, the absence of similar language [in a crimi-
nal statute] provides evidence that the legislature
intended cumulative punishment.’’ State v. Greco, supra,
216 Conn. 295.
We turn therefore to the legislative history of § 53a-
70c, which reveals that its enactment was the product
of a compromise between legislators that wanted to
limit judicial discretion when sentencing sexual offend-
ers of children and legislators that wanted to safeguard
prosecutorial discretion and the plea bargaining pro-
cess. That compromise resulted in what legislators
referred to as the ‘‘new crime’’ of aggravated sexual
assault of a minor, which enabled, but did not require,
prosecutors to pursue enhanced, mandatory sentences
for sexual offenders of children when, in their judgment,
the facts and circumstances of the particular case war-
ranted a significant mandatory minimum sentence.
Overall, although the legislative history of § 53a-70c
reveals a clear legislative intent to specifically authorize
enhanced, mandatory penalties, it does not reveal a
clear legislative intent to specifically authorize cumula-
tive punishments for § 53a-70c and its predicate
offenses.
Section 53a-70c is part of a series of statutes com-
monly referred to as Jessica’s Law. The impetus for
Jessica’s Law was the tragic murder of nine year old
Jessica Lunsford, who was abducted from her Florida
home by a registered sex offender and sexually
assaulted before being buried alive. M. Bell, ‘‘Grassroots
Death Sentences?: The Social Movement for Capital
Child Rape Laws,’’ 98 J. Crim. L. & Criminology 1, 16–17
(Fall 2007); T. Aguayo, ‘‘Sex Offender Guilty of Rape and
Murder of Florida Girl,’’ The New York Times (March 8,
2007), available at http://www.nytimes.com/2007/03/08/
us/08verdict.html (last visited January 23, 2017). One
of the many initiatives of Jessica’s Law is to create
higher mandatory penalties for first and second time
sexual offenders of children to ensure that they are
unable to reach future victims. M. Bell, supra, 17.
Jessica’s Law was first proposed in Connecticut in
2006. The original bill proposed amending the sentenc-
ing provisions of certain sexual offenses40 to create high
mandatory minimum sentences when the victim was
under the age of thirteen.41 The bill did not alter the
legal structure of the underlying sexual offenses.42 Some
legislators were concerned, however, that the proposed
bill would hamper the plea bargaining process and pros-
ecutors’ ability to pursue a lesser offense, and lesser
penalties, if the facts and circumstances of the case did
not warrant a high mandatory minimum sentence.43 In
particular, they noted the wide array of sexual offenses
encompassed by the bill and the fact that the bill (with-
out qualification) required a high mandatory minimum
sentence when the victim was under thirteen years old.44
Although the proponents of the original bill maintained
that prosecutors would retain their discretion in charg-
ing,45 the bill was held over to the next legislative
session.
In 2007, a revised bill was introduced. To address the
concerns raised about the original bill, the revised bill
consolidated the enhanced penalties for the sexual
assault of a child under the age of thirteen into the
‘‘new crime’’ of aggravated sexual assault of a minor.46
Despite the new nomenclature, the legislature contin-
ued to treat this provision as a sentencing enhancement
during legislative hearings. In particular, proponents of
the bill touted this new crime as a ‘‘tool’’ that could
be utilized by prosecutors to secure a high mandatory
minimum sentence when the facts and circumstances
of the case warranted it.47 The revised bill was ultimately
passed and codified, in relevant part, at § 53a-70c.
It is clear from the legislative history of § 53a-70c
that the legislature wanted to authorize high mandatory
minimum sentences for sexual offenders of children.
Initially, the legislature sought to obtain this result by
amending only the sentencing provisions of each rele-
vant statute. When concerns were raised about the
effect of the original bill on prosecutorial discretion
and the plea bargaining process, the legislature created
the ‘‘new crime’’ of aggravated sexual assault of a minor.
This new crime was designed to give prosecutors the
discretion to charge either the greater offense with its
high mandatory sentencing provision or the lesser
offenses with those standard sentencing provisions,
depending on the facts and circumstances of the case.
It is not clear from this legislative history, however,
that the legislature intended to specifically authorize
cumulative convictions and sentences for aggravated
sexual assault of a minor and the charged predicate
offense(s).48
Therefore, on the basis of our examination of the
language, structure, and legislative history of § 53a-70c,
we conclude that the state has failed to rebut the pre-
sumption created by the Blockburger test that § 53a-
70c is the same offense as its charged predicate offenses
for the purposes of double jeopardy. Accordingly, the
defendant’s cumulative convictions and sentences for
the three sexual offenses violates his right against dou-
ble jeopardy.
B
Having determined that the defendant’s cumulative
convictions and sentences for aggravated sexual assault
of a minor, sexual assault in the first degree, and risk
of injury to a child violate double jeopardy, we must
determine the appropriate remedy. The defendant
argues that the court must vacate his convictions and
sentences for both lesser offenses, i.e., sexual assault
in the first degree and risk of injury to a child. The
state responds that we should vacate the defendant’s
conviction and sentence for only one of the lesser
offenses because the state charged only one count of
aggravated sexual assault when it could have charged
two counts (i.e., it could have charged one count for
each predicate offense). Therefore, the state reasons
that ‘‘vacating both lesser charges would grant the
defendant a windfall he is not entitled to,’’ namely,
fifteen fewer years imprisonment. We are not persuaded
that the remedy advocated by the state is available to us.
The following facts are relevant to our resolution of
this issue. On June 18, 2014, the court imposed a total
effective sentence of fifty years imprisonment, thirty
years of which were a mandatory minimum, followed
by five years of special parole. For the sexual assault
information, the court imposed a sentence of forty years
imprisonment, thirty years of which were a mandatory
minimum, followed by five years of special parole. Spe-
cifically, on count one, sexual assault in the first degree,
the court sentenced the defendant to twenty years
imprisonment, five years of which were a mandatory
minimum, followed by five years of special parole, to
be served concurrently with count three. On count two,
risk of injury to a child, the court sentenced the defen-
dant to fifteen years imprisonment, five of which were
a mandatory minimum, to be served consecutively to
counts one and three. On count three, aggravated sexual
assault of a minor, the court sentenced the defendant
to twenty-five years imprisonment, twenty-five of which
were a mandatory minimum, to be served concurrently
with count one. For the escape information, the court
imposed a sentence of ten years imprisonment, to be
served consecutively to count two of the sexual
assault information.
Our Supreme Court’s holding in State v. Polanco,
308 Conn. 242, 61 A.3d 1084 (2013), controls in this
circumstance. In Polanco, the Supreme Court, exercis-
ing its supervisory authority, held that when a defendant
is convicted of greater and lesser offenses, the court
must vacate the lesser offense(s). Id., 255; see also State
v. Miranda, 317 Conn. 741, 751, 120 A.3d 490 (2015)
(holding that vacatur was the appropriate remedy for
the double jeopardy violation caused by cumulative
convictions and sentences for capital murder and felony
murder). In the present case, it is undisputed that it
was impossible for the defendant to commit the greater
offense (aggravated sexual assault of a minor), in the
manner charged in the long form information, without
committing the lesser offenses (sexual assault in the
first degree and risk of injury to a child).49 Therefore,
pursuant to Polanco, the convictions and sentences for
the lesser offenses must be vacated.50
Accordingly, we remand the case to the trial court
to vacate the defendant’s convictions and sentences for
risk of injury to a child and sexual assault of a minor.
We direct the trial court to resentence the defendant
for his remaining convictions of aggravated sexual
assault of a minor and attempt to escape custody.51
See State v. Wade, 297 Conn. 262, 271–72, 998 A.2d
1114 (2010).
The judgment is reversed only as to the defendant’s
convictions of sexual assault in the first degree and
risk of injury to a child, and the case is remanded to
the trial court with direction to vacate the convictions
of those offenses and to resentence the defendant on
the remaining charges. The judgment is affirmed in all
other respects.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse, we decline to identify the victim, others individuals
or locations through which the victim’s identity may be ascertained. See
General Statutes § 54-86e.
2
The victim was eleven years old at the time while the defendant was
nineteen years old. At trial, the victim described the defendant as being ‘‘a
lot bigger than me’’ at the time of the defendant’s attack on her.
3
Judge Joan K. Alexander presided over all pretrial proceedings after
arraignment.
4
See General Statutes § 54-56d (i) (1) (‘‘[t]he period of placement under
the order or combination of orders shall not exceed the period of the
maximum sentence which the defendant could receive on conviction of the
charges against the defendant or eighteen months, whichever is less’’).
5
Judge Julia DiCocco Dewey presided over all trial and posttrial pro-
ceedings.
6
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989); see In re
Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying third prong).
7
‘‘Nunc pro tunc means ‘now for then’ and is used, inter alia, to refer to
competency determinations made after the time at which the underlying
proceeding took place, in the present case, the defendant’s criminal trial.’’
State v. Connor, 321 Conn. 350, 365 n.6, 138 A.3d 265 (2016).
8
The defendant alternatively asks this court to exercise its supervisory
authority over the administration of justice to require trial courts to canvass
defendants concerning their purported right to testify at a competency
hearing. ‘‘It is well settled that [a]ppellate courts possess an inherent supervi-
sory authority over the administration of justice.’’ (Internal quotation marks
omitted.) State v. Elson, 311 Conn. 726, 764, 91 A.3d 862 (2014). However,
‘‘[t]he exercise of our supervisory powers is an extraordinary remedy to be
invoked only when circumstances are such that the issue at hand, while
not rising to the level of a constitutional violation, is nonetheless of utmost
seriousness, not only for the integrity of a particular trial but also for the
perceived fairness of the judicial system as a whole.’’ (Internal quotation
marks omitted.) Id., 765. We are not convinced that it is necessary to the
due administration of justice for us to invoke our supervisory authority in
the present case. Our supervisory authority is meant to be utilized sparingly
and only in extraordinary circumstances, which simply are not present here.
9
Cotterell did not explicitly diagnose the defendant with malingering in
the third competency report, but this diagnosis is reflected throughout that
report. For example, Cotterell concluded his report by observing: ‘‘[The
defendant] knows about his circumstances, and can engage with staff mem-
bers on an informal basis. He has been consistent, when asked to engage
in a formal examination of his competency, in repeatedly stating that he
knows nothing. This is a reflection of his immaturity and impulsivity, and
there is definitely a volitional component to this presentation. It is clear
that he knows more than he is willing to admit. He is not currently taking
psychiatric medication, and he has not demonstrated any symptoms of a
serious mental illness that would require such treatment. Although [the
defendant] frequently refuses to participate in evaluations, his refusal is not
deemed to be secondary to a psychotic process or mood disorder, but rather
a reflection of his long-standing pattern of oppositional conduct.’’ (Emphasis
added.) Additionally, in his posttrial competency report on the defendant,
Cotterell referred to the principal diagnosis of malingering being given at
the time he determined that the defendant was competent to stand trial.
10
When discussing the defendant’s behavior during his hospitalization,
Cotterell observed: ‘‘[The defendant] demonstrated clinical stability. He no
longer voiced delusional materials, reported no perceptual problems, and
his behavior was described a[s] coherent and organized. [The defendant]
began to show some concern as his return date to the court approached.
He made vague claims that he was suicidal, but promptly retracted his
statement when faced with the prospect of safety measures that would be
applied in such cases. His behavior suggested that he was trying to find a
way to avoid facing the implications of his charges. He sometimes refused his
medications at night and claimed, ‘They kept me awake,’ in an unconvincing
manner. He asked whether he would stay longer on the unit if he were not
taking his medications. The treating psychiatrist explained that we would
petition the court to appoint a conservator with the authority to give us
permission to medicate him if such a situation presented itself. This seemed
to persuade [the defendant] not to pursue his quest for a quick way out of
facing his legal obligations.’’
When discussing his efforts to engage the defendant in a conversation
about the different elements of the legal system, Cotterell stated that ‘‘[the
defendant] did not appear to be motivated to participate in the evaluation
and did not appear to be putting forth his best effort.’’
11
The defendant also asks this court to invoke its supervisory authority.
We are not convinced that this claim presents extraordinary circumstances
warranting an exercise of our supervisory authority. See footnote 8 of
this opinion.
12
General Statutes § 17a-566 states in relevant part: ‘‘(a) . . . any court
prior to sentencing a person convicted . . . of a sex offense involving . . .
disparity of age between an adult and a minor . . . may if it appears to the
court that such person has psychiatric disabilities and is dangerous to himself
or others, upon its own motion or upon request of any of the persons
enumerated in subsection (b) of this section and a subsequent finding that
such request is justified, order the commissioner to conduct an examination
of the convicted defendant by qualified personnel of the division. . . .
‘‘(b) The request for such examination may be made by the state’s attorney
or assistant state’s attorney who prosecuted the defendant for an offense
specified in this section, or by the defendant or his attorney in his behalf.
. . .’’
13
The record indicates that, because of the defendant’s behavior during
their meetings, defense counsel had informed the court and the state that
he intended to move for a competency evaluation prior to the hearing and
prior to the defendant’s misconduct while being transported.
14
The court engaged in the following colloquy with the defendant:
‘‘The Court: Now, they’ve attempted to do the competency evaluation but
they’ve had some difficulty because you don’t wish to participate in it. That
is your option—
‘‘[The Defendant]: Participate in mental health?
‘‘The Court: The competency evaluation.
‘‘[The Defendant]: Yes.
‘‘The Court: I would like for you to participate. I can’t force you to, but
it would make the—
‘‘[The Defendant]: Nah. Nah.
‘‘The Court: —the decision easier.
‘‘[The Defendant]: I would like not to participate in mental health because
I’m not a mental health client.
‘‘The Court: Well, this isn’t to see if whether you’re a mental health client.
This is to see whether—
‘‘[The Defendant]: I’m competent to stand trial.
‘‘The Court: No. You’re competent to be sentenced. There’s a difference.
So I would not sentence you unless you’re competent to be sentenced. What
I am going to do is order the evaluator to have access to your medical and
mental health records—
‘‘[The Defendant]: I think I’m in the wrong court.
‘‘The Court: No, you’re in the right court.
‘‘[The Defendant]: No, I’m in the wrong court. This is not even the right
court. . . .
‘‘[The Defendant]: All right. I’ll cooperate.
‘‘The Court: Good. And they’re also going to have access to your records.
The fact that you’re cooperating doesn’t necessarily mean you’re going to
go to a mental health facility, but we want to know what is best for you
and best for the state in terms of the sentencing. I appreciate your coopera-
tion. Thank you very much.’’
15
On June 18, 2014, the court held a video conference to make a technical
change to the defendant’s sentence. When the defendant apologized for his
expletory remarks to the court during sentencing, the court vacated the
defendant’s sentence for contempt. After the court stated that it was impos-
ing a total effective sentence of fifty years imprisonment for the substantive
offenses, however, the defendant began arguing that he was innocent and
wrongly convicted.
16
State v. Boscarino, 204 Conn. 714, 529 A.2d 1260 (1987).
17
The defendant also claims that the court abused its discretion by granting
the state’s motion for consolidation because the motion was untimely. We
disagree. Practice Book § 41-5 states in relevant part: ‘‘Unless otherwise
provided by these rules or statute, all pretrial motions or requests shall be
made not later than ten days after the first pretrial conference in the court
where the case will be tried, or, with permission of the judicial authority,
at such later time as the judicial authority may fix.’’ (Emphasis added.)
See also Practice Book § 41-3 (4) (authorizing pretrial motions for joinder).
In the present case, by accepting the state’s motion to consolidate over the
defendant’s objection, the court permitted the state to file the motion to
consolidate later than ten days after the first pretrial conference.
The defendant nevertheless contends that the court abused its discretion
by permitting the state to file a late motion to consolidate because it hindered
his ability ‘‘to meaningfully and intelligently consider and assess the
defense options and strategies at a consolidated trial.’’ (Emphasis in origi-
nal.) However, the defendant never expressed any concerns at the hearing
or at trial about the effect consolidation would or did have on his ability
to prepare for trial. Because this claim was not distinctly raised before the
trial court, we cannot review it on appeal. See Mitchell v. Commissioner
of Correction, 156 Conn. App. 402, 408–409, 114 A.3d 168, cert. denied, 317
Conn. 904, 114 A.3d 1220 (2015).
18
The state filed its initial motion to consolidate in the morning of Septem-
ber 19, 2013 and the revised motion to consolidate in the afternoon. The
state also filed two long form informations, one for the sexual assault
case and one for the attempt to escape case. The long form sexual assault
information added the charge of aggravated sexual assault of a minor.
19
Specifically, the state argued that the defendant’s attempt to escape
would have been admissible as evidence of consciousness of guilt in a
separate trial on the sexual assault information. It also argued that evidence
that the defendant was charged with felony sexual assault offenses would
have been admissible in a separate trial on the escape information to prove
that the defendant was in custody and charged with a felony at the time he
attempted to escape.
20
The state raises two arguments on appeal concerning the cross admissi-
bility of the sexual assault evidence in a separate escape trial. First, the
state argues that ‘‘the [sexual] assault charges were relevant to show a
heightened motivation to escape . . . because the defendant faced
‘extremely serious’ charges (class A and B felonies) carrying mandatory
minimum sentences based on the victim’s age . . . .’’ Second, the state
argues that ‘‘the record shows that when the factual basis of the assault
became known to other inmates, they harassed the defendant, providing
further incentive to escape.’’ We first note that it is unclear whether the
court was aware that the defendant was being harassed by other inmates
at the time it granted the state’s motion because this fact was only mentioned
in Cotterell’s posttrial competency report. Additionally, because these argu-
ments were never presented to the trial court, and, therefore, cannot serve
as a basis for the trial court’s decision to grant the motion to consolidate,
we decline to address them now on appeal. See Practice Book § 60-5.
21
It is undisputed that the first and third Boscarino factors were not
present at the consolidated trial. The two sets of charges involve discrete
and easily distinguishable factual scenarios. Additionally, the consolidation
of the cases for trial did not increase the duration or complexity of the
trial because the escape charge required the presentation of only the brief
testimony of two judicial marshals and the defendant.
22
During the defendant’s attempt to escape, it took approximately four
judicial marshals to subdue and restrain him.
23
We reiterate that evidence concerning the escape charge could have
properly been admitted in a separate trial for the sexual assault charge
because escape indicates consciousness of guilt. ‘‘[When] evidence of one
incident can be admitted at the trial of the other [incident], separate trials
would provide the defendant . . . [with] no significant benefit. [U]nder
such circumstances, the defendant would not ordinarily be substantially
prejudiced by joinder of the offenses for a single trial.’’ (Internal quotation
marks omitted.) State v. Crenshaw, supra, 313 Conn. 83–84.
24
Only at trial did the victim testify, inter alia, that the defendant pushed
her up the stairs, that she screamed for help when he did that, that the
defendant pushed her into his bedroom, and that she tried to fight him off
by hitting and kicking him. The defendant impeached this testimony during
his cross-examination of the officer that interviewed the victim after her
sexual assault. This officer testified that the victim never told him that the
defendant pushed her up the stairs, that she screamed for help, that she
was pushed into the defendant’s apartment, or that she tried to fight off the
defendant by hitting and kicking him.
25
See State v. Crenshaw, supra, 313 Conn. 89 (‘‘it is well established that
the trial court, in making the discretionary, pretrial decision to join multiple
cases, rules on whether the evidence could be admissible, not whether the
evidence actually is admitted’’ [emphasis in original]); State v. Davis, 286
Conn. 17, 47, 942 A.2d 373 (2008) (Katz, J., concurring) (‘‘The trial court’s
rulings on such motions usually are predicated on the face of the charging
document and whatever information is provided to the court regarding
evidence to be adduced at trial. Therefore, the reviewing court necessarily
must base its determination as to whether the trial court abused its discretion
by looking to the state of the record at the time the trial court acted, not
to the fully developed record after trial.’’), overruled on other grounds in
State v. Payne, 303 Conn. 538, 549, 34 A.3d 370 (2012); State v. Perez, 147
Conn. App. 53, 128–129, 80 A.3d 103 (Lavine, J., concurring) (the trial court’s
pretrial decision to join or to sever the cases must be reviewed based only
on the information before the trial court at the time it decides the motion),
aff’d, 322 Conn. 118, 139 A.3d 654 (2013).
26
To prove aggravated sexual assault of a minor, as charged, the state
had to prove that the defendant ‘‘illegally restrained’’ the victim. See General
Statutes § 53a-70c (a) (1). ‘‘ ‘[R]estrain’ means to restrict a person’s move-
ments intentionally and unlawfully in such a manner as to interfere substan-
tially with his liberty by moving him from one place to another, or by
confining him either in the place where the restriction commences or in a
place to which he has been moved, without consent. As used herein ‘without
consent’ means, but is not limited to, (A) deception and (B) any means
whatever, including acquiescence of the victim, if he is a child less than
sixteen years old . . . and the parent . . . has not acquiesced in the move-
ment or confinement.’’ General Statutes § 53a-91 (1).
27
The defendant cites article first, § 8, of the Connecticut constitution as
an alternative source of his right to remain silent. To the extent the defendant
seeks to raise a distinct claim under the Connecticut constitution, we decline
to address it because he failed to provide an independent analysis of this
state constitutional claim. See State v. Skok, 318 Conn. 699, 701 n.3, 122
A.3d 608 (2015).
28
The defendant also invokes his rights under article first, § 7, of the
Connecticut constitution. Because the defendant failed to provide an inde-
pendent analysis of this claim under the Connecticut constitution, we decline
to address it. See State v. Skok, 318 Conn. 699, 701 n.3, 122 A.3d 608 (2005).
29
Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
30
See State v. Smith, 321 Conn. 278, 288, 138 A.3d 223 (2016) (‘‘[t]he
definition of interrogation [for purposes of Miranda] can extend only to
words or actions on the part of police officers that they should have known
were reasonably likely to elicit an incriminating response’’ [emphasis in
original; internal quotation marks omitted]).
31
The defendant cites article first, §§ 8 and 9, of the Connecticut constitu-
tion as an alternative source of his right against double jeopardy. To the
extent the defendant seeks to raise a distinct claim under the Connecticut
constitution, we decline to address it because he failed to provide an indepen-
dent analysis of this claim under the Connecticut constitution. See State v.
Skok, 318 Conn. 699, 701 n.3, 122 A.3d 608 (2015).
32
Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed.
306 (1932).
33
Count three of the long form information states in relevant part: ‘‘The
undersigned Senior State’s Attorney further accuses the defendant, CHRIS-
TOPHER BURGOS, of the crime of AGGRAVATED SEXUAL ASSAULT OF
A MINOR . . . and alleges that . . . the defendant committed a violation
of Connecticut General Statutes §§ 53a-70a (a) (2) and 53-21 (a) (2) and the
victim of such offense . . . was under thirteen years of age and the defen-
dant illegally restrained said person.’’
Notably, the long form information charges aggravated sexual assault in
the first degree, in violation of § 53a-70a (a) (2), as a predicate offense rather
than sexual assault in the first degree in violation of § 53a-70 (a) (2). This
is evidently a typographical error. At trial, the parties and the court operated
under the assumption that sexual assault in the first degree was one of the
predicate offenses for count three. When the court read the information at
the start of trial and charged the jury, it stated that sexual assault in the
first degree was one of the predicate offenses for count three. Neither party
objected to this reading of the information or the content of the jury charge.
Additionally, in their briefs on appeal, both parties have referred to sexual
assault in the first degree as being one of the predicate offenses in count
three. Therefore, we will continue to refer to sexual assault in the first
degree as the appropriate predicate offense.
34
We recognize that when interpreting the meaning of a statute we ordi-
narily begin our analysis with General Statutes § 1-2z. However, in the pre-
sent matter, we are not engaging in a linguistic analysis of § 53a-70c in
an attempt to discern the meaning and effect of specific words or phrases
contained in § 53a-70c. Instead, we are engaging in a constitutional analysis
of § 53a-70c in an attempt to discern whether the legislature clearly intended
to specifically authorize cumulative punishments for convictions under
§ 53a-70c and the charged predicate offense(s).
35
General Statutes § 53a-70c (a) provides: ‘‘A person is guilty of aggravated
sexual assault of a minor when such person commits a violation of subdivi-
sion (2) of subsection (a) of section 53-21 or section 53a-70, 53a-70a, 53a-
71, 53a-86, 53a-87 or 53a-196a and the victim of such offense is under thirteen
years of age, and (1) such person kidnapped or illegally restrained the victim,
(2) such person stalked the victim, (3) such person used violence to commit
such offense against the victim, (4) such person caused serious physical
injury to or disfigurement of the victim, (5) there was more than one victim
of such offense under thirteen years of age, (6) such person was not known
to the victim, or (7) such person has previously been convicted of a violent
sexual assault.’’
36
As discussed later in this opinion, the primary purpose of the legislation
that created § 53a-70c was to create new, enhanced mandatory minimum
sentences for individuals that sexually assault children.
37
See General Statutes §§ 53a-55a (a), 53a-56a (a), 53a-59a (b), 53a-59b
(b), 53a-60a (a), 53a-60b (b), 53a-60c (b), 53a-61a (b), 53a-61aa (a), 53a-64aa
(b), 53a-64bb (b), 53a-64cc (b), 53a-70a (a), 53a-72b (a), 53a-92a (a), 53a-
94a (a), 53a-102a (a), 53a-103a (a), and 53a-216 (a).
38
General Statutes § 53a-70a (a) states in relevant part: ‘‘No person shall
be convicted of sexual assault in the first degree and aggravated sexual
assault in the first degree upon the same transaction but such person may be
charged and prosecuted for both such offenses upon the same information.’’
39
General Statutes § 53a-72b (a) states in relevant part: ‘‘No person shall
be convicted of sexual assault in the third degree and sexual assault in the
third degree with a firearm upon the same transaction but such person may
be charged and prosecuted for both such offenses upon the same infor-
mation.’’
40
General Statutes §§ 53-21 (a) (2) (risk of injury to a child), 53a-70 (sexual
assault in the first degree), 53a-70a (aggravated sexual assault in the first
degree), 53a-71 (sexual assault in the second degree), 53a-72a (sexual assault
in the third degree), 53a-86 (promoting prostitution in the first degree), 53a-
87 (promoting prostitution in the second degree), 53a-90a (enticing a minor),
53a-196 (obscenity as to minors), 53a-196a (employing a minor in an obscene
performance), and 53a-196b (promoting a minor in an obscene performance).
41
The original bill as passed by the Senate proposed amending the sentenc-
ing provisions of several sexual offenses to impose a mandatory minimum
sentence of twenty-five years imprisonment if the victim is under thirteen
years old. For example, § 53-21 (a) (2) would have been amended to contain
the following clause: ‘‘if . . . the victim of the offense is under thirteen
years of age, [the defendant] shall be guilty of a class A felony and, for a
first offense, be sentenced to a term of imprisonment of twenty-five years
which may not be suspended or reduced by the court and, for a subsequent
offense, be sentenced to a term of life imprisonment.’’ Senate Amendment
Schedule A, LCO #4256, to Senate Bill No. 360, 2006 Sess.
42
49 S. Proc., Pt. 9, 2006 Sess., p. 2835, remarks of Senator John A. Kissel
(stating that this law would ‘‘leave the underlying constructs of the crime
of sexual assault intact. It doesn’t change what needs to occur to have the
crime occur, but what it does is it enhances the penalties. . . . What it
does is it changes significantly the mandatory minimum sentence that can
be imposed by the court.’’); id., p. 2842, remarks of Senator John A. Kissel
(‘‘[N]one of the underlying parameters of what constitutes the [predicate]
crime has changed. All we’re doing is we’re reaching in and we’re
addressing what the punishment should be.’’ [Emphasis added.]); id., p.
2849, remarks of Senator John A. Kissel (‘‘Again, we have not offered to
change the underlying statutory construct in our state by way of this amend-
ment. We are enhancing the penalties.’’ [Emphasis added.]); id., p. 2861,
remarks of Senator John McKinney (‘‘We are not changing the elements of
any crime. This amendment does not change existing law as to the elements
of the crime. All it says is that it’s going to have a harsher penalty.’’); 49 S.
Proc., Pt. 11, 2006 Sess., p. 3292, remarks of Senator Catherine W. Cook
(‘‘This is a bill about sentencing. It’s not a bill about whether someone might
or might not have committed the crime. This is about after the court, after
the jury has decided this person did such terrible things to a child.’’); id.,
pp. 3295–96, remarks of Senator Martin M. Looney (‘‘This [modification to
the bill] now clarified that the enhanced minimum mandatory [sentence] of
twenty-five years will apply if the victim is under the age of thirteen . . . .
So it establishes . . . that we do reserve our most serious penalties for the
most serious offenses. . . . This does target the crime of sexual assault in
the first degree, and aggravated sexual assault in the first degree, as suitable
for this enhanced penalty.’’ [Emphasis added.]).
43
49 S. Proc., Pt. 9, 2006 Sess., pp. 2851–52, remarks of Senator Andrew
J. McDonald (‘‘[The proposed amendment] basically incorporates the entire
spectrum of options that a prosecutor would have available to him or her.
And under this proposal that prosecutor would not have any discretion,
but, in fact, would be compelled to bring that child or adult, as the case
may be, regardless of the circumstances, and limit the discretion of the
court [in sentencing]. And that is an issue that I think every member should
have in mind when they vote on this.’’); id., p. 2854, remarks of Senator
Edward Meyer (referring to Senator McDonald’s concerns about a twelve
year old being charged with a mandatory minimum sentence for touching
inner thigh of another twelve year old, Senator Meyer asked ‘‘what would
be the plea bargain available to the prosecutor and the defense lawyer to
avoid an injustice, an excessive injustice’’); see also Conn. Joint Standing
Committee Hearings, Judiciary, Pt. 19, 2007 Sess., p. 6147, remarks of Senator
John McKinney (‘‘I think the Chief State’s Attorney is here again today, but
he expressed concern, as I know did Chairman [Representative Michael P.]
Lawlor and others, that prosecuting, if it’s twenty-five years or nothing,
people will not reach plea agreements, and you’ll have to take a lot of cases
to trial, and some people may get off’’).
44
See footnotes 40 and 41 of this opinion.
45
See 49 S. Proc., Pt. 9, 2006 Sess., p. 2853, remarks of Senator John A.
Kissel (‘‘What this does is it targets certain specific areas. But if a state’s
attorney wanted to reduce the charge to something else, there’s plenty of
other ways to go.’’); id., p. 2859, remarks of Senator John McKinney (‘‘[H]ow
is it that on the one hand mandatory minimums don’t work because prosecu-
tors can charge down, they don’t have to charge the higher crime with the
mandatory minimum. In fact, I would ask if you could read this bill to find
anywhere where it requires a prosecutor to bring charges under circum-
stances [where the offense conduct involves two young adolescents].’’
[Emphasis added.]).
46
The predicate offenses of the revised bill were General Statutes §§ 53-
21 (a) (2), 53a-70, 53a-70a, 53a-71, 53a-86, 53a-87, or 53a-196a. Cf. footnote
40 of this opinion. Although General Statutes § 53a-90a (enticing a minor)
was no longer included as a predicate offense, the revised bill did create
enhanced penalties for enticement of a minor when the victim is under the
age of thirteen. See Public Acts 2007, No. 07-143, § 5. However, the revised
bill no longer created enhanced penalties for violations of General Statutes
§§ 53a-72a (sexual assault in the third degree), 53a-196 (obscenity as to
minors), or 53a-196b (promoting a minor in an obscene performance).
47
For example, during a Judiciary Committee Hearing, Senator John
McKinney highlighted the fact that while ‘‘this new crime gives the prosecu-
tors the tool to put the most heinous of predators behind bars for a very
long time . . . it gives the prosecutors the lesser offenses in those cases
that warrant it. In that respect, it addresses the concerns raised by the Chief
State’s Attorney regarding the all or nothing approach included in prior
drafts of this bill.’’ Conn. Joint Standing Committee Hearings, Judiciary, Pt.
19, 2007 Sess., pp. 6138–39, testimony of Senator John McKinney. Similarly,
Senator John A. Kissel analogized the bill to an arrow in the prosecutor’s
quiver, stating that ‘‘in the case where they have ample evidence, and they
really want to throw the book at someone, the twenty-five year mandatory
minimum is there.’’ Conn. Joint Standing Committee Hearings, Judiciary,
Pt. 20, 2007 Sess., p. 6486, remarks of Senator John A. Kissel; see also Conn.
Joint Standing Committee Hearings, Judiciary, Pt. 21, 2007 Sess., p. 6599,
written testimony of Senator Louis C. DeLuca (‘‘This bill will put predators
where they belong—behind bars where they can do no harm to our children.
It will take those who prey on children and keep them off our streets for
twenty-five years the first time they abuse a child. If they do it again, they
will spend the next fifty years in jail.’’); id., p. 6603, written testimony of
Senator Dan Debicella (‘‘Connecticut needs a law on the books that imposes
punishment that fits the crime [of child molestation]. . . . Twenty-five
years, or more, in prison is not too much to demand of sexual predators.’’).
48
The state’s reliance on State v. Wright, supra, 319 Conn. 684, to support
its contention that the legislature clearly intended to authorize multiple
punishments is misplaced. Wright is again distinguishable from this case
for two distinct reasons. First, in Wright, our Supreme Court was never
asked to consider whether the legislature intended to authorize multiple
punishments for violations of § 53a-70c and the charged predicate offense.
Quite to the contrary, in Wright, the Supreme Court observed that ’’the trial
court vacated the defendant’s convictions of [the lesser offenses of] risk of
injury to a child and unlawful restraint pursuant to [its] decision in State
v. Polanco, 308 Conn. 242, 245, 61 A.3d 1084 (2013) . . . .’’ State v. Wright,
supra, 687 n.2. Second, it bears repeating that because the two statutory
subsections in Wright were factually and legally distinct the burden was on
the defendant to rebut the Blockburger presumption. Id., 691–92. In this
case, the Blockburger presumption is against the state, and the state bears the
burden of demonstrating that the legislature clearly intended to specifically
authorize cumulative punishments.
49
See footnote 35 of this opinion.
50
The state maintains that only one lesser offense should be vacated lest
the defendant be granted a ‘‘windfall’’ of fifteen fewer years of imprisonment.
That is, if the lesser offenses are vacated, the defendant’s effective sentence
for his convictions under the sexual assault information will be twenty-
five years imprisonment, rather than forty years imprisonment. The state’s
argument is premised on the fact that it could have charged two counts of
aggravated sexual assault of a minor—one count alleging sexual assault in
the first degree as a predicate offense and one count alleging risk of injury to
a child as a predicate offense. The fundamental flaw in the state’s argument,
however, is that it did not charge the defendant with two counts of aggra-
vated sexual assault of a minor. It charged the defendant with one count
of the greater offense and two counts of lesser offenses.
51
Resentencing for the defendant’s convictions for aggravated sexual
assault of a minor and attempt to escape custody is appropriate in the
present case because our decision alters the defendant’s total effective
sentence. State v. Wade, 297 Conn. 262, 271–72, 998 A.2d 1114 (2010). At
sentencing, the court imposed a total effective sentence of fifty years impris-
onment, followed by five years of special parole. To achieve the total effec-
tive term of imprisonment, the court imposed three consecutive sentences.
Specifically, the court ordered that the defendant’s sentence for risk of
injury to a child (fifteen years imprisonment) be served consecutively to
his sentence for aggravated sexual assault of a minor (twenty-five years
imprisonment, followed by five years special parole). The court also ordered
that the defendant’s sentence for attempt to escape (ten years) be served
consecutively to his sentence for risk of injury to a child. Therefore, vacatur
of the defendant’s risk of injury to a child conviction will alter the defendant’s
total effective sentence by reducing it from fifty years imprisonment to
twenty-five years imprisonment. Additionally, the court imposed a term
of special parole under the defendant’s sexual assault in the first degree
conviction. Therefore, vacatur of the defendant’s sexual assault in the first
degree conviction will eliminate the period of special parole imposed by
the original sentencing court.