State v. Delgado

707 A.2d 1, 243 Conn. 523, 1998 Conn. LEXIS 9

• Court: Supreme Court of Connecticut
• Decided: January 27, 1998
• Docket: SC 15524
• Status: Published

Opinions

Opinion

PALMER, J.

The defendant, Rafael Delgado, was convicted after a jury trial of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1),¹ and risk of injury to a child in violation of General Statutes (Rev. to 1991) § 53-21.² The trial court rendered judgment sentencing the defendant to a total effective sentence of thirty years imprisonment, suspended after twenty-two years, and five years probation.³ The defendant appealed to the Appellate Court, and a divided panel of that court reversed the trial court’s judgment on the ground that the trial court improperly had denied the defendant’s motion to sever the trial of the manslaughter and the risk of injury counts.⁴ State v. Delgado, 42 Conn. App. 382, 681 A.2d 327 (1996). We granted the state’s petition for certification limited to the issue of whether the Appellate Court properly determined that the trial court had abused its discretion in the joinder of the two counts. State v. Delgado, 239 Conn. 920, 682 A.2d 1008 (1996). We conclude that the trial court did not abuse its discretion in denying the defendant’s severance motion and, consequently, we reverse the judgment of the Appellate Court.⁵

The opinion of the Appellate Court sets forth the following facts that the jury reasonably could have found. “The victim was a sixteen month old baby with Down’s Syndrome who, at the time of her death on December 14, 1992, resided with her mother, Devilyn Bruno, and her mother’s boyfriend, the defendant, Rafael Delgado, in an apartment in Bridgeport. In the spring of 1992, the victim was taken by her aunt to live with her grandmother in Florida. The victim was returned to Connecticut in September or October of 1992. After the victim’s return to Connecticut, the defendant inquired of the aunt when she was taking the victim back to Florida.

“On November 16, 1992, the victim was seen at the St. Joseph’s Family Medical Center in Stamford for her fifteen month checkup. The nurse on duty noticed that the victim had three bruises on her face, one on each temple area and one on the right cheek. When the nurse questioned Bruno about the bruises, Bruno responded that the victim had sustained the bruises when she fell out of a bouncing chair approximately three or four days earlier.

“On the same day, Tammy Vargas, a family practice physician at St. Joseph’s Family Medical Center, examined the victim. Vargas had previously examined the victim in April, 1992, at which time she did not notice any bruises on the victim or problems with the victim’s arms or legs. During the examination on November 16, 1992, which was videotaped,⁶ Vargas noticed some bruises on the victim’s forehead and ordered blood work to rule out any bleeding abnormality. Bruno told Vargas that all of the victim’s bruises were caused when the victim fell off of a bouncing chair. Bruno also told Vargas that the victim sometimes put her fingers in her nose causing nosebleeds. Vargas found no indication that the victim tended to bang her head or had a sleep disorder, and no indication that the victim had a broken right leg. Vargas had a ‘slight suspicion’ of child abuse.

“On December 8, 1992, Bruno had a conversation with Vargas in which she indicated that the victim had a swelling in her thigh. Bruno told Vargas that she thought the swelling was on the same side where the victim had received a shot. Vargas could not recall on what part of the body the shots were given, but, according to the medical records, the victim did receive shots on November 16, 1992. Since Vargas did not see the victim after November 16, 1992, she did not know the cause of the swelling.

“Regina Featherston, a nutritionist for Women, Infants and Children (WIC), a federally funded nutrition program for children and pregnant women, first saw the victim on February 26, 1992. On that date, Featherston did not notice any bruises on the victim and the victim allowed Featherston to pick her up and to hold her. Featherston next saw the victim on November 17, 1992. At that time, Featherston noticed bruises around the victim’s forehead and on her cheeks. She also noticed a pattern of tiny cuts around the victim’s eyes and black and blue marks on both sides of the victim’s chin. Featherston asked Bruno about the victim’s injuries and Bruno told her that the victim had fallen out of a rocking chair. When Featherston attempted to pick the victim up, the victim screamed and tried to get away from her. The victim had the same reaction when Bruno went to pick her up. Bruno explained to Featherston that the victim had behaved like that since she received shots at the hospital the day before.

“Because Featherston suspected that something was wrong, she asked Bruno when the victim had last seen a physician. Bruno told Featherston that the victim had seen Vargas the day before, November 16, 1992. After Bruno and the victim left her office, Featherston called Vargas and made notes to herself of the visit with the victim because she was ‘very suspicious of what happened to [the victim].’

“Pauline Barnes and her husband, Benjamin Baines, lived in an apartment in Bridgeport below an apartment occupied by a Spanish man, a Caucasian woman and a baby. In the early morning hours of December 14, 1992, they were asleep in their apartment when they were awakened by heavy footsteps in the apartment upstairs. Pauline Barnes recognized the footsteps as belonging to the man upstairs and remembered hearing a loud noise that ‘sounded like someone fell on the floor hard’ or like ‘someone was being thrown to the floor.’ After approximately ten minutes, she saw the defendant and the woman leave.

“At approximately 4 a.m. on December 14,1992, Benjamin Barnes was awakened by ‘real heavy walking’ followed by a loud noise that shook the whole house. He then heard footsteps going downstairs and out the front door. Ten minutes later, Benjamin Barnes heard the front door open and footsteps going upstairs. Shortly thereafter, he heard ‘the[m] come right back to the same spot that [he] hear[d] the noise before and . . . then they tum[ed] around and [went] back outside.’

“At approximately 4 a.m. on December 14, 1992, Michael Fusaro, an emergency medical technician for the Bridgeport Ambulance Service, was driving an ambulance in Bridgeport with his partner, John Corris, when they were stopped by a man and a woman holding a baby, the victim. Fusaro called the dispatcher to let them know what was going on and then proceeded to assist Corris, who had initiated care to the victim. They then transported the victim to the hospital. The woman sat in the front seat of the ambulance and explained that they had decided to run to the hospital, which was only two or three blocks away, because the victim was crying and having trouble breathing.

“Corris knew the condition of the victim was poor because of her limp state and because her face was blue, indicating that the victim was not breathing. After removing the victim’s snowsuit, Corris noticed that the victim had no pulse. Corris also noticed that ‘the eyes were . . . discolored like bruises around the orbits of the eyes,’ which he called a ‘clinical sign of injury,’ usually indicative of head trauma. Corris put a tube into the victim’s lungs, put her on a heart monitor, and gave her some medication. They also performed [cardiopulmonary resuscitation] on the victim. The victim was placed on a board for the drive to the hospital.

“The victim was treated in the emergency room of Bridgeport Hospital by Deborah Spaight, a pediatric resident. Spaight noticed that the victim was not breathing on her own and was not moving. Spaight also noticed that the victim had some bruising over both eyes, her cheek, the left side of her neck and on her chest. Spaight saw a cut that appeared to be healing on the left part of the victim’s upper lip. In Spaight’s opinion, the bruises were more than twelve hours old. A physical examination revealed that the victim had some bleeding behind the eyes, which is usually associated with a severe head injury. The victim had a [computerized axial tomography (CAT)] scan of her head which showed evidence of a skull fracture with associated bleeding inside her brain. The victim was removed from life support at 5 p.m. on December 14, 1992, and died shortly thereafter.

“As a result of her examination of the victim, Spaight filed a report of suspected child abuse with the state department of social services. She did this on the basis of the severity of the head injury, the evidence of old bruises and the fact that the story from Bruno did not appear to be consistent with the victim’s injuries. In Spaight’s opinion, the defendant’s statement also was inconsistent with the victim’s injuries and the cause of the victim’s death, which was cardiopulmonary arrest [that] was caused by the head injury. A postmortem X ray of the victim taken by Maika Shah revealed a healing fracture of the victim’s right upper leg that would have been caused by a ‘tremendous amount of force.’ In Shah’s opinion, the fracture was a minimum of two weeks old, and probably occurred after the victim’s videotaped examination on November 16, 1992.⁷

“The defendant testified that the victim slept on a mattress in the kitchen, that there were stuffed animals around the mattress to prevent the victim from hitting the wall, and that the victim would often roll off the mattress during the night and he on the floor. According to the defendant, the victim had the habit of banging her head on the floor. The defendant testified that when the victim returned from the hospital after receiving shots on November 16, she would not let anybody touch her. This behavior lasted for approximately a week and a half. He also testified that the victim’s leg had been very swollen.

“With regard to the victim’s death in the early morning hours of December 14, 1992, the defendant testified as follows. He stayed up until approximately 2 a.m. watching television in his bedroom. Between 3:30 and 4 a.m., the defendant was awakened by the victim’s crying, and he went to the kitchen and saw the victim lying on the floor. He gave her a pacifier and a toy and then went back to the bedroom. About five minutes later, the victim started crying again, and when the defendant went back to the kitchen, he saw the victim lying on her back and thought that she was choking on something. He dropped to his knees, grabbed the back of the victim’s neck, squeezed her cheeks and attempted to perform mouth-to-mouth resuscitation. He then put the victim under cold water in the sink. When he realized that none of his efforts were working, he woke up Bruno, and together they tried to revive the victim. Eventually, they got dressed and started running to the hospital. En route, they flagged down an ambulance, which then took Bruno and the victim to the hospital. The defendant testified that he was not aware, when the victim went to the hospital, that she had a head injury.” State v. Delgado, supra, 42 Conn. App. 384-89.

In light of this evidence, the jury returned a verdict of guilty of manslaughter in the first degree and risk of injury to a child. On appeal, the defendant claimed that “the evidence presented by the state on the manslaughter count was bolstered and shored up by the risk of injury count, thereby resulting in substantial prejudice”; id., 393; and, therefore, that the trial court improperly had refused to sever the trial of those counts. The Appellate Court agreed and reversed the judgment of the trial court. The state maintains that the judgment of conviction should be affirmed because the trial court acted within its discretion by consolidating the counts for trial. We agree with the state.

“General Statutes § 54-57⁸ and Practice Book § 829⁹ expressly authorize a trial court to order a defendant to be tried jointly on charges arising separately. In deciding whether to sever informations joined for trial, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb. . . . The defendant bears a heavy burden of showing that the denial of severance resulted in substantial injustice and that any resulting prejudice was beyond the curative power of the court’s instructions. . . . [W]hether a joint trial will be substantially prejudicial to the rights of the defendant . . . means something more than that a joint trial will be less advantageous to the defendant. . . .” (Internal quotation marks omitted.) State v. Cassidy, 236 Conn. 112, 132-33, 672 A.2d 899, cert. denied, 519 U.S. 910, 117 S. Ct. 273, 136 L. Ed. 2d 196 (1996); see State v. Chance, 236 Conn. 31, 37-38, 671 A.2d 323 (1996).

“We recognize that an improper joinder may expose a defendant to potential prejudice for three reasons. First, when several charges have been made against the defendant, the jury may consider that a person charged with doing so many things is a bad [person] who must have done something, and may cumulate evidence against him .... Second, the jury may have used the evidence of one case to convict the defendant in another case even though that evidence would have been inadmissible at a separate trial. . . . [Third] joinder of cases that are factually similar but legally unconnected . . . presents] the . . . danger that a defendant will be subjected to the omnipresent risk . . . that although so much [of the evidence] as would be admissible upon any one of the charges might not [persuade the jury] of the accused’s guilt, the sum of it will convince them as to all.” (Internal quotation marks omitted.) State v. Atkinson, 235 Conn. 748, 763, 670 A.2d 276 (1996); see State v. Horne, 215 Conn. 538, 546-47, 577 A.2d 694 (1990). Nevertheless, because joinder “foster[s] economy and expedition of judicial administration”; State v. Greene, 209 Conn. 458, 462, 551 A.2d 1231 (1988); we consistently have recognized a clear presumption in favor of joinder and against severance; State v. Chance, supra, 236 Conn. 38; State v. Jones, 234 Conn. 324, 344, 662 A.2d 1199 (1995); and, therefore, absent an abuse of discretion, we will not second guess the considered judgment of the trial court as to the joinder or severance of two or more charges.

The court’s discretion regarding joinder, however, is not unlimited; rather, that discretion must be exercised in a manner consistent with the defendant’s right to a fair trial. Consequently, we have identified several factors that a trial court should consider in deciding whether a severance may be necessary to avoid undue prejudice resulting from consolidation of multiple charges for trial. “These factors include: (1) whether the charges involve discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part; and (3) the duration and complexity of the trial. ... If any or all of these factors are present, a reviewing court must decide whether the trial court’s jury instructions cured any prejudice that might have occurred.” (Internal quotation marks omitted.) State v. Cassidy, supra, 236 Conn. 133; see State v. Chance, supra, 236 Conn. 42-43; State v. Boscarino, 204 Conn. 714, 722-24, 529 A.2d 1260 (1987). Upon application of these factors to this case, we are persuaded, contrary to the conclusion of the Appellate Court, that the trial court was not required to sever the trial of the two counts.

First, the counts were not so similar as to create a significant risk of confusion or prejudice. With respect to the manslaughter count, the state established that the defendant had committed the crime on a specific date and time, namely, December 14, 1992, at approximately 4 a.m. With respect to the risk of injury count, the state proved that the defendant’s illegal conduct spanned a period of six weeks, from November 1,1992, until December 14,1992. Moreover, the state’s evidence on the manslaughter count demonstrated that the defendant had actively engaged in conduct that caused the victim’s death; by contrast, the state’s evidence proved that the defendant had committed the crime of risk of injury by allowing the victim to be placed in a situation inimical to her health. Finally, the evidence adduced by the state in support of the manslaughter count indicated that the cause of death was a fractured skull, whereas the evidence presented by the state to prove the risk of injury count established that the victim had suffered facial cuts and bruises and a leg injury. Thus, the crimes were committed in fundamentally different time frames, involved fundamentally different conduct, and resulted in fundamentally different injuries.¹⁰ Under the circumstances, we disagree with the Appellate Court that the two counts did not involve discrete and distinguishable factual scenarios.¹¹

With respect to the second factor, we acknowledge that the injuries inflicted on the victim, and especially the head injuries that resulted in her death, are shocking. We disagree with the defendant’s contention, however, that joinder of the counts seriously prejudiced his defense of the manslaughter count.¹² In light of the state’s claim regarding the risk of injury count, namely, that the defendant had failed to take action to protect the victim from physical abuse by another person, the evidence adduced in support of that count was not so likely to incite the passions of the jury that it could not render a fair and objective verdict on the manslaughter count. See, e.g., State v. Herring, 210 Conn. 78, 97, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989) (“[w]hile any murder involves violent and upsetting circumstances, it would be unrealistic to assume that any and all such deaths would inevitably be so ‘brutal and shocking’ that a jury, with proper instructions to treat each killing separately, would necessarily be prejudiced by a joint trial”); State v. Hilton, 45 Conn. App. 207, 215-16, 694 A.2d 830 (1997) (same). This is especially true because the conduct underlying the manslaughter count is more repugnant than that underlying the risk of injury count.

In addition, the trial court instructed the juiy that each count was a separate offense and, therefore, that the jury was required to consider them individually. Specifically, the trial court, prior to commencing voir dire, stated that “[e]ach count is a separate crime and must be proved by the state individually beyond a reasonable doubt.” In its final charge, the court reminded the jury that “[e]ach count is a separate crime and you must consider them separately in your deliberations.” The trial court thereafter reiterated that “each and every count is a charge of a separate crime and must be proved individually and separately beyond a reasonable doubt.” Moreover, the defendant failed to request any further cautionary instruction regarding the separate nature of the counts and the evidence adduced in support thereof. In particular, the defendant did not request an instruction expressly informing the jury that it was prohibited from considering the risk of injury evidence in its deliberations on the manslaughter count.¹³ Furthermore, the defendant took no exception to the charge as given. We are not persuaded, therefore, that the joinder of the two counts for trial created an undue risk that the jury would consider the evidence of one crime in its deliberations on the other.¹⁴

Finally, the trial, which lasted eleven days and involved the testimony of twenty-five witnesses, was not unusually lengthy or complex. In this respect, this case closely resembles State v. Herring, supra, 210 Conn. 97, an eight day double murder case that involved testimony from twenty-three witnesses. In Herring, we concluded that neither the duration of the trial nor its complexity created a sufficient risk of jury confusion to require a severance of the two murder counts. Id.; compare State v. Boscarino, supra, 204 Conn. 722-24 (consolidated trial of four factually similar but legally unrelated cases, which took ten weeks to complete and involved testimony from fifty-five witnesses, was of such duration and complexity as to create high risk of prejudice). Moreover, although the evidence adduced by the state in this case was essentially circumstantial, neither the issues nor the evidence was unduly complicated. In these circumstances, we do not believe that either the length of the trial or the nature of the evidence presented created a likelihood of jury confusion.

We conclude, therefore, that the defendant has failed to meet his heavy burden of demonstrating that joinder of the risk of injury and manslaughter counts resulted in substantial injustice.¹⁵ Accordingly, we disagree with the Appellate Court that the trial court’s denial of the defendant’s severance motion entitles him to a new trial.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to consider the defendant’s remaining claims on appeal.

In this opinion BORDEN, NORCOTT and MCDONALD, Js., concurred.

1 General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person . . . .”

The defendant also had been charged with manslaughter in the first degree in violation of § 53a-55 (a) (3), but was acquitted of that charge by the jury.

2 General Statutes (Rev. to 1991) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

3 The defendant received a sentence of twenty years imprisonment, suspended after seventeen years, and five years probation, on the manslaughter count, and a prison term of ten years, suspended after five years, and five years probation, on the risk of injury count, the sentences to run consecutive to one another.

4 Chief Judge Dupont dissented from the decision of the majority, concluding that the trial court had not abused its discretion in denying the defendant’s severance motion. State v. Delgado, 42 Conn. App. 382, 399-101, 681 A.2d 327 (1996).

5 On appeal from the judgment of the trial court to the Appellate Court, the defendant also claimed that: (1) the evidence was insufficient to support the jury’s verdict; (2) the trial court improperly excluded the testimony of a defense expert witness due to an alleged violation of a sequestration order; (3) the trial court improperly admitted evidence of prior injuries to the victim; (4) the trial court improperly allowed into evidence a videotape of the victim and her mother; and (5) the trial court’s charge to the jury was misleading and confusing, resulting in the dilution of the state’s burden of proof. Although the Appellate Court considered and rejected the defendant’s claim of evidentiary insufficiency; see State v. Delgado, supra, 42 Conn. App. 389-92; it did not address the defendant’s remaining claims. The Appellate Court, therefore, will be required to consider those claims on remand.

6 “The videotape was played for the jury.” State v. Delgado, supra, 42 Conn. App. 385 n.4.

7 “On cross-examination, Shah admitted that it was possible that the fracture was four months old. This is consistent with the testimony of the defense experts, who opined that the fracture occurred between three and four months prior to the victim’s death.” State v. Delgado, supra, 42 Conn. App. 388 n.5.

8 General Statutes § 54-57 provides: “Joinder of offenses of the same character. Whenever two or more cases are pending at the same time against the same party in the same court for offenses of the same character, counts for such offenses may be joined in one information unless the court orders otherwise.”

9 Practice Book § 829 provides: “Trial Together of Informations

“The judicial authority may, upon its own motion or the motion of any party, order that two or more informations, whether against the same defendant or different defendants, be tried together.”

10 Although the two crimes involved the same victim, we have never concluded that that fact alone necessarily renders the crimes so interrelated as to require a severance. On the contrary, we have expressly indicated that there are circumstances when multiple crimes properly may be joined for trial even though the offenses involved the same victim. See, e.g., State v. Jennings, 216 Conn. 647, 658-59, 583 A.2d 915 (1990) (holding that joinder of two assault charges involving same victim was proper).

11 It is true that many of the same witnesses testified regarding both the manslaughter and the risk of injury counts. Because the factual scenarios underlying the two crimes were separate and distinct, however, we are not convinced that the jury likely was confused by that testimony.

We also disagree with the dissent’s contention, which was not asserted by the defendant, that at trial, the assistant state’s attorney acknowledged that the counts “did not involve distinguishable factual scenarios.” See footnote 3 of the dissent. The assistant state’s attorney’s comments merely noted that the state intended to use the same witnesses, and that the counts involved the same victim and, to a limited extent, the same time period.

12 Contrary to the assertion of the dissent, the defendant has not claimed, either in the Appellate Court or in this court, that the manslaughter evidence unduly prejudiced his defense of the risk of injury count. As the Appellate Court expressly stated, and as we have noted, the defendant claimed on appeal to the Appellate Court that “the evidence presented by the state on the manslaughter count was bolstered and shored up by the risk of injury count, thereby resulting in substantial prejudice . . . .” State v. Delgado, supra, 42 Conn. App. 393. The defendant makes precisely the same argument on appeal to this court, claiming that “[t]he evidence introduced [by the state] for the purposes of convicting the defendant under the risk of irvjury charge . . . undoubtedly served to inflame the passions and sensibilities of the jurors regarding the manslaughter count and thereby prejudiced the defendant’s right to a fair trial.” The dissent, quoting from the defendant’s brief, would have us believe that the defendant has also raised a claim that the manslaughter evidence unfairly prejudiced his ability to defend against the risk of injury count. This assertion, which is based on general statements that the dissent has taken out of context from the introductory and conclusory paragraphs of the defendant’s brief, is simply inaccurate.

13 In light of the fact that the state, at the time of trial, did not claim that the risk of injury evidence was admissible to prove the manslaughter count, it would have been preferable for the trial court expressly to have informed the jury that the evidence adduced by the state on either one of the two counts was not admissible as proof of the other and, further, that the two cases had been consolidated solely for purposes of judicial economy. We believe that such a charge is appropriate, even if a defendant fails to request it expressly, because it serves to underscore for the jury that it must consider the two counts separately. The defendant in this case, however, has not claimed that the trial court’s failure so to instruct the jury constituted plain error, nor has he established that the instructions given by the trial court were constitutionally defective.

14 The state maintains that, in any event, the risk of injury evidence would have been admissible at a separate trial on the manslaughter count to prove intent and motive, and to place the crime in the context of nearby and nearly contemporaneous happenings; see, e.g., State v. Ali, 233 Conn. 403, 427, 660 A.2d 337 (1995); and, consequently, that separate trials would have provided the defendant with no significant benefit. See, e.g., State v. Atkinson, supra, 235 Conn. 765. In light of our conclusion that the defendant has not met his heavy burden of demonstrating that joinder of the two counts resulted in substantial injustice, we need not decide whether the risk of injury evidence would have been admissible at a separate trial on the manslaughter count.

15 The dissent’s assertion that our determination of this case “sets a new standard for consolidating trials”; see p. 551 of the dissent; is entirely unwarranted. Contrary to the dissent’s claim, our resolution of this case is based on well established principles, the propriety of which the defendant has not challenged. Moreover, we reiterate that a trial court’s discretion regarding the joinder of cases for trial must be exercised carefully and cautiously, with due regard for the fair trial rights of the defendant. Thus, the fact that the decision whether to consolidate the counts in a criminal case may be a “close call”; see p. 551 of the dissent; does not, as the dissent suggests, require a different result; as long as a trial court properly exercises its discretion regarding joinder, we will not reverse its considered judgment.

In addition, we are mystified by the dissent’s “problem” regarding the import of the trial court’s jury instructions to consider the cases separately. See footnote 12 of the dissent. As we have explained, we are persuaded that, upon application of the Boscarino factors, the trial court did not improperly consolidate the two cases for trial. In these circumstances, and in the absence of a specific request to charge from the defendant regarding the separate nature of the counts, we cannot say that the trial court’s cautionary instructions on that issue were inadequate.

Finally, the dissent mischaracterizes the thrust of the state’s argument regarding the presence of the Boscarino factors. See footnote 13 of the dissent. Suffice it to say that the state has never suggested, either implicitly or otherwise, that its position with respect to joinder is “tenuous”; that conclusion is the dissent’s, and the dissent’s alone.