State v. Fred C.

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STATE OF CONNECTICUT v. FRED C.*
(AC 37114)
DiPentima, C. J., and Prescott and Bishop, Js.
Argued May 16—officially released August 16, 2016

(Appeal from Superior Court, judicial district of
Hartford, Mullarkey, J.)
Kirstin B. Coffin, assigned counsel, for the appel-
lant (defendant).
Jonathan M. Sousa, special deputy assistant state’s
attorney, with whom, on the brief, were Gail P. Hardy,
state’s attorney, and Richard Rubino, senior assistant
state’s attorney, for the appellee (state).
Opinion

BISHOP, J. The defendant, Fred C., appeals from the
judgment of conviction, rendered after a jury trial, of
three counts of assault in the first degree in violation
of General Statutes § 53a-59 (a) (3) and one count of
criminal violation of a protective order in violation of
General Statutes § 53a-223 (a).1 The defendant raises
two claims on appeal. First, he claims that the court
abused its discretion in denying his motion for a new
trial as to one of the assault charges on the ground that
forensic evidence demonstrated that it was physically
impossible that he committed that assault. Second, he
claims that his constitutional rights ‘‘to due process,
[to] a fair trial, to present a defense, and to confront
witnesses against him’’ were violated when the court
issued a coercive perjury advisement to a witness and
that, he argues, deprived him of exculpatory evidence
at trial. We affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. At approximately 2 a.m. on July 28, 2012, after
following the victims, G, P, and R, to a residence in
Hartford, the defendant stabbed all three of them with
a curved knife. First, the defendant cut G’s ear, then
pinned her against a grill and stabbed her multiple times
in her back and buttock, resulting in puncture wounds
to her back, a collapsed lung, and a nearly torn off ear.
The defendant then turned to P, stabbing her nine times
in her chest and side, leaving her paralyzed. The defen-
dant and P have two children together, but due to prior
domestic violence, a full no contact protective order
had been issued by the court against the defendant in
favor of P. The order was in effect on July 28, 2012. As
to the third victim, when R, P’s mother, tried to inter-
vene, the defendant stabbed her in her right leg. After
the assaults of the victims, the defendant left the area.
Hartford police officers responded to the scene and
observed the victims, their injuries, and a significant
amount of blood on the grass, courtyard, and walkway
in the vicinity of the assaults. Paramedics transported
the victims to the hospital, where officers collected
their bloodstained clothing as evidence.
Police later arrested the defendant and questioned
him at the police station. At the time of the defendant’s
arrest, officers noticed bloodstains on his clothing and
a dried bloodstain on his right hand. Officers collected
the defendant’s bloodstained clothing, swabbed the
bloodstain on his hand, and collected a sample of his
DNA. Thereafter, the police sent the clothing, the swab,
and the defendant’s DNA sample to the state forensics
laboratory for testing.
At the state forensics laboratory, state forensics tech-
nician Kristen Madel tested various cut out portions of
bloodstains from the defendant’s clothing, the swab
from the blood found on his hand, and DNA samples
from the defendant and all three victims. Madel’s testing
revealed P’s DNA as contributing to the blood on the
defendant’s clothing and in the blood swabbed from
his hand. Madel did not detect G’s or R’s DNA on any
of the tested samples.
On February 19, 2014, the state, in a long form infor-
mation, charged the defendant with three counts of
assault in the first degree in violation of § 53a-59 (a)
(3), one count each for stabbing P, R, and G, and one
count of criminal violation of a protective order in viola-
tion of § 53a-223 (a). The state also charged the defen-
dant with two counts of violating his probation pursuant
to General Statutes § 53a-32 by way of separate informa-
tions tried to the court. Following a jury trial, the defen-
dant was convicted of all counts, and, subsequently,
the court found the defendant to have violated his pro-
bation. On May 13, 2014, the court sentenced the defen-
dant to a total effective sentence of twenty-one years
and one day incarceration, followed by ten years of
special parole. This appeal followed. Additional facts
will be set forth as necessary to our assessment of the
issues on appeal.
I
The defendant first claims that the court abused its
discretion in denying his motion for a new trial. Specifi-
cally, the defendant argues that, with respect to the
count alleging that he assaulted G, the jury’s verdict
was based on physically impossible factual conclusions.
To support this argument, the defendant contends that
the absence of G’s DNA on his body and clothing ren-
ders his assault of her physically impossible.2 We
disagree.
The following additional facts and procedural history
are relevant to our review of this claim. On March 31,
2014, following the guilty verdicts, the defendant filed
a motion for a new trial, arguing ‘‘that the jury’s verdict
was clearly against the weight of the evidence . . . .’’
More specifically, the defendant argued that there were
inconsistencies between the DNA evidence and the eye-
witness testimony that implicated him. On May 13, 2014,
during the defendant’s sentencing hearing, the court
heard oral argument on the defendant’s motion. At the
hearing, the defendant argued that the absence of G’s
DNA from the tested blood samples contradicted the
testimony of G and other eyewitnesses who stated that
the defendant had stabbed G. According to the defen-
dant, if he had stabbed G, her blood would have been
found on his person or clothing and, reciprocally, the
absence of her blood from the tested samples meant
that he could not have stabbed her. Accordingly, he
asserted, the jury’s conclusion that he had stabbed G
was undermined by the evidence.
In response, the state argued that Madel’s trial testi-
mony had provided the jury with two reasonable expla-
nations for the lab not detecting G’s DNA on the tested
samples. The state pointed out that Madel had testified
that she did not test every single bloodstain on the
defendant’s clothing, but selected various stains on his
clothing for testing. Additionally, the state noted that
Madel had explained during her trial testimony that one
DNA source could outcompete another DNA source,
thereby concealing the presence of the outcompeted
source on the material under examination. Accordingly,
the state argued that Madel’s explanations refuted the
defendant’s claim of physical impossibility. In reply,
the defendant conceded that R’s DNA could have been
outcompeted because she was injured less severely and
bled less heavily, but argued, nevertheless, that such
an occurrence could not have prevented the detection
of G’s DNA because she had suffered more serious
injuries. According to the defendant’s reasoning, G’s
blood would have had to be present on the defendant
if he were the perpetrator. After hearing argument, the
court denied the defendant’s motion for a new trial.
‘‘The proper appellate standard of review when con-
sidering the action of a trial court granting or denying
a motion to set aside a verdict and a motion for a
new trial is the abuse of discretion standard. . . . In
determining whether there has been an abuse of discre-
tion, every reasonable presumption should be given in
favor of the correctness of the court’s ruling. . . .
Reversal is required only where an abuse of discretion
is manifest or where injustice appears to have been
done.’’ (Citations omitted; internal quotation marks
omitted.) State v. Ward, 76 Conn. App. 779, 786, 821
A.2d 822, cert. denied, 264 Conn. 918, 826 A.2d 1160
(2003). ‘‘We do not . . . determine whether a conclu-
sion different from the one reached could have been
reached. . . . A verdict must stand if it is one that a
jury reasonably could have returned and the trial court
has accepted.’’ (Internal quotation marks omitted.)
Bolmer v. McKulsky, 74 Conn. App. 499, 510, 812 A.2d
869, cert. denied, 262 Conn. 954, 818 A.2d 780 (2003).
‘‘Although the jury is ordinarily the sole arbiter of
the facts in a criminal case, its power is not absolute.
. . . The court serves a supervisory function vis-a-vis
the jury. . . . In passing upon a motion to set aside a
verdict, the trial judge must do just what every juror
ought to do in arriving at a verdict. The juror must use
all his [or her] experience, his [or her] knowledge of
human nature, his [or her] knowledge of human events,
past and present, his [or her] knowledge of the motives
which influence and control human action, and test the
evidence in the case according to such knowledge and
render his [or her] verdict accordingly. A juror who did
not do this would be remiss in his [or her] duty. The
trial judge in considering the verdict must do the same,
or fail in the discharge of that function which the law
has laid upon him [or her]; and if, in the exercise of all
his [or her] knowledge from this source, he [or she]
finds the verdict to be so clearly against the weight of
the evidence in the case as to indicate that the jury did
not correctly apply the law to the facts in evidence in
the case, or were governed by ignorance, prejudice,
corruption or partiality, then it is his [or her] duty to
set aside the verdict. . . . In such a case, [a] verdict
may be set aside even if the evidence was conflicting
and there was direct evidence in favor of the party who
prevailed with the jury. . . .
‘‘One cogent reason for overturning the verdict of a
jury is that the verdict is based on conclusions that are
physically impossible. [A] verdict should be set aside
[w]here testimony is thus in conflict with indisputable
physical facts, the facts demonstrate that the testimony
is either intentionally or unintentionally untrue, and
leave no real question of conflict of evidence for the jury
concerning which reasonable minds could reasonably
differ.’’ (Citations omitted; internal quotation marks
omitted.) State v. Hammond, 221 Conn. 264, 267–68,
604 A.2d 793 (1992).
With that legal context, we turn to the defendant’s
specific arguments on appeal in support of his motion.
On the basis of our review, we conclude that the defen-
dant’s arguments do not support a claim that the verdict
was based on a physical impossibility. In essence, the
defendant simply seeks to reargue the facts already
assessed by the jury. He claims that if he had stabbed
the three victims, as asserted by the state, DNA evidence
from the blood of all three victims should have been
found on him and the absence of any incriminating DNA
of a particular victim rendered the state’s accusations
as to that victim physically impossible. At trial, how-
ever, the state’s expert witness offered two reasonable
explanations for the testing results. First, the expert
explained that she did not test every specimen of blood,
but selected a limited number of the bloodstain speci-
mens for testing, and, second, she indicated that under
certain circumstances, a DNA sample may be blanketed
by another, more potent, specimen. From this explana-
tion, the jury could reasonably have inferred that even
though G’s blood was not among the randomly tested
samples, other evidence presented at trial inculpating
the defendant—at trial, two eyewitnesses testified that
the defendant stabbed the victims—provided a suffi-
cient basis for his conviction. See Jones v. State, 165
Conn. App. 576, 604, A.3d , cert. granted on
other grounds, 322 Conn. 906, A.3d (2016). Addi-
tionally, as noted, the expert explained that the testing
may not have identified G’s DNA because some DNA
sources can outcompete other DNA sources. For exam-
ple, as Madel explained, a victim who bleeds more can
washout the presence of DNA from a victim who bleeds
less. Similarly, the blood of a victim who is stabbed
after another victim can cover the prior victim’s blood,
rendering the prior victim’s blood and DNA not detect-
able. In light of this testimony, the jury had a reasonable
basis to convict the defendant of all three assaults, even
in the absence of DNA evidence from all three victims.
Because there was a reasonable interpretation of the
evidence that supported a finding of guilt, the court’s
denial of the defendant’s motion for a new trial was
not an abuse of discretion.
II
The defendant next claims that the court violated his
constitutional rights ‘‘to due process, [to] a fair trial, to
present a defense, and to confront witnesses against
him’’ by issuing a strongly worded perjury admonition
to P during a suppression hearing, which, he argues,
‘‘intimidated [P] into testifying more favorably for the
[state]’’ at trial. In response, the state argues that the
court’s perjury admonition was warranted because P
had given factually inconsistent testimony, and, alterna-
tively, that the court’s advisement lacked the coercive
force necessary to infringe on the defendant’s sixth
amendment right. We agree with the state.
As a preliminary matter, we note that the defendant
did not object to the court’s perjury admonition and
now seeks review of this unpreserved claim pursuant
to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d
823 (1989).3 Because the record is adequate for review,
and the defendant’s claim is of constitutional magni-
tude, we review it pursuant to Golding.
The following additional facts and procedural history
are relevant to our review of this claim. Following jury
selection, the defendant moved to suppress certain
statements he had given to police following his arrest.
The court held a hearing on the defendant’s motion on
February 26, 2014, during which the state called P as
a witness. In response to the state’s line of questioning
about whether she had seen the defendant at the crime
scene during the incident, P gave three factually incon-
sistent responses. First, when the state asked P if she
had seen the defendant stabbing G, P answered, ‘‘I don’t
see—I don’t know, I didn’t see nothing. I went toward
there and after that, all I see is me on the floor and all
I remember I’m on the floor.’’ Next, when the state
asked P if she had tried to stop ‘‘the defendant [from]
stabbing [G],’’ P answered, ‘‘I know I approached him.
I don’t know what I did. . . . [A]fter that, I guess I got
stabbed or whatever the case may be, and I ended up
on the floor.’’ Finally, P testified that she did not see
the defendant at the crime scene, but that ‘‘[s]omebody
was there. Honestly, somebody was there, I wouldn’t—
I approached [him]—somebody, I don’t remember noth-
ing, I was there, I approached him.’’
In response to P’s inconsistent testimony, the court
asked the state whether she had given a written state-
ment to the police. The state responded that P had not
given a written statement. The court then advised P
as follows:
‘‘The Court: Do you understand the penalty for
perjury?
‘‘[P]: Yes. I do.
‘‘The Court: What is it?
‘‘[P]: That I go to jail.
‘‘The Court: Five years, five thousand dollars.
‘‘[P]: Okay. Okay.
‘‘The Court: You understand that?
‘‘[P]: Yes. I do.
‘‘The Court: You want a lawyer?
‘‘[P]: No. I don’t. I’m not lying. Sir, you think I’m lying?
‘‘The Court: Yes. I think you’re lying and I want to give
you a chance to talk to a lawyer before you lie anymore.
‘‘[P]: So if you want, I’ll get a lawyer, a paid lawyer.
‘‘The Court: And how are you going to pay a lawyer?
‘‘[P]: I will find money. I get money. I’ll find it.
‘‘The Court: Who do you get money from?
‘‘[P]: I get money from the state. I just got my taxes.
I do work. I could get a job.
‘‘The Court: Well if you can’t, we’ll appoint a lawyer
for you.’’
Defense counsel did not object to these comments
and P concluded her testimony. Before dismissing P as
a witness, the court again recommended that she con-
sult an attorney before testifying at trial. The court
commented: ‘‘All right. You’re excused until [trial]. I
would suggest you consult with an attorney between
now and then and have an attorney with you.’’ After
the hearing and before the commencement of the trial,
the court appointed counsel for P.
At trial and while P was represented by counsel,
the state called her as a witness. She testified that the
defendant was at the crime scene during the incident,
but that she did not see him stab either her or G. Counsel
for the defendant did not cross-examine P about her
conflicting suppression hearing testimony regarding the
defendant’s presence at the crime scene, and, after the
state rested, the defendant did not call P as a witness
for the defense.
On appeal, the defendant argues that the court’s
strongly worded perjury admonition during the suppres-
sion hearing intimidated P to alter her testimony at trial
in favor of the state regarding the defendant’s presence
at the crime scene. He further argues that the court’s
intimidating advisement deprived him of exculpatory
evidence, specifically, testimony that he was not at the
crime scene when P was stabbed.4 Accordingly, he con-
tends, the court’s admonition violated his constitutional
rights to due process, to a fair trial, to present a defense,
and to confront witnesses against him.
‘‘The defendant has a fundamental constitutional
right to present a defense. . . . The federal constitu-
tion require[s] that criminal defendants be afforded a
meaningful opportunity to present a complete defense.
. . . The sixth amendment . . . [guarantees] the right
to offer the testimony of witnesses, and to compel their
attendance, if necessary, [and] is in plain terms the right
to present a defense, the right to present the defendant’s
version of the facts as well as the prosecution’s to the
jury so that it may decide where the truth lies. . . . The
defendant’s right to present a defense is not absolute,
however; [t]he right may, in appropriate cases, bow to
accommodate other legitimate interests in the criminal
trial process. . . . The accused does not have an unfet-
tered right to offer testimony that is incompetent, privi-
leged, or otherwise inadmissible under standard rules
of evidence. . . .
‘‘The function of the court in a criminal trial is to
conduct a fair and impartial proceeding. . . . A trial
judge in a criminal case may take all steps reasonably
necessary for the orderly progress of the trial. . . .
When the rights of those other than the parties are
implicated, [t]he trial judge has the responsibility for
safeguarding both the rights of the accused and the
interests of the public in the administration of criminal
justice. . . . Accordingly, it is within the court’s discre-
tion to warn a witness about the possibility of incrimi-
nating himself.’’ (Citations omitted; internal quotation
marks omitted.) State v. Tilus, 157 Conn. App. 453,
474–75, 117 A.3d 920, cert. granted on other grounds,
317 Conn. 915, 117 A.3d 854 (2015).
In exercising such discretion, however, the court may
not threaten a witness into remaining silent or ‘‘effec-
tively [drive] that witness off the stand . . . .’’ Webb v.
Texas, 409 U.S. 95, 98, 93 S. Ct. 351, 34 L. Ed. 2d 330
(1972). In Webb, the trial judge singled out one witness
‘‘for a lengthy admonition on the dangers of perjury.’’
Id., 97. The trial judge admonished the witness as fol-
lows: ‘‘Now you have been called down as a witness in
this case by the [d]efendant. It is the [c]ourt’s duty to
admonish you that you don’t have to testify, that any-
thing you say can and will be used against you. If you
take the witness stand and lie under oath, the [c]ourt
will personally see that your case goes to the grand
jury and you will be indicted for perjury and the [likeli-
hood] . . . is that you would get convicted of perjury
and that it would be stacked onto what you have already
got, so that is the matter you have got to make up your
mind on. If you get on the witness stand and lie, it is
probably going to mean several years and at least more
time that you are going to have to serve. It will also be
held against you in the penitentiary when you’re up for
parole and the [c]ourt wants you to thoroughly under-
stand the chances you’re taking by getting on that wit-
ness stand under oath. You may tell the truth and if
you do, that is all right, but if you lie you can get into
real trouble. The court wants you to know that. You
don’t owe anybody anything to testify and it must be
done freely and voluntarily and with the thorough
understanding that you know the hazard you are tak-
ing.’’ (Internal quotation marks omitted.) Id., 95–96.
After this admonition, the witness ‘‘refused to testify
for any purpose and was excused by the court.’’ Id.,
96. Upon review of the judge’s admonition, the United
States Supreme Court concluded that the judge had not
merely warned the witness about his testimony, but
had threatened the witness not to testify using ‘‘unnec-
essarily strong terms’’ which ‘‘exerted such duress on
the witness’ mind as to preclude him from making a
free and voluntary choice whether or not to testify.’’ Id.,
98. Consequently, the judge’s admonition ‘‘effectively
drove that witness off the stand’’ in violation of the
defendant’s constitutional rights. Id., 98.
In the case at hand, the court’s comment was in
direct response to P’s question as to whether the court
believed that she was lying. To that question, the court
answered, ‘‘yes,’’ and the court continued with an admo-
nition to her to consult an attorney. Unlike Webb, the
court, in the case at hand, did not threaten the witness.
Although the court’s answer to P’s question was direct
and forceful, it did not contain the character of coercive-
ness found on review in Webb. Rather, the court strongly
advised P regarding the consequences of perjury, for
which her factually inconsistent testimony provided a
basis. At no point did the court tell or even suggest to
P which version of her testimony—either that she saw
the defendant, did not see the defendant, or did not
remember anything—she should relay at trial. Rather,
the court noted the presence of inconsistent testimony
and, accordingly, advised the witness about the conse-
quences of perjury. In giving this admonition, the court
was fulfilling a judicial responsibility. See State v. Tilus,
supra, 157 Conn. App. 475. Further, unlike the proce-
dural facts of Webb, P did not refuse to testify after the
court’s warning; instead, she consulted with counsel
and then testified at trial. To the extent the defendant
believed that P’s suppression testimony was more favor-
able to him, he could have cross-examined her about
the apparent inconsistencies between her suppression
and trial testimony. See State v. Whelan, 200 Conn. 743,
753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct
597, 93 L. Ed. 2d 598 (1986). The defendant did not avail
himself of this opportunity. Accordingly, the defendant
was not deprived of the opportunity to elicit potentially
beneficial testimony from P by the court’s admonition
to her regarding the potential consequences of perjury.
Under these circumstances, we conclude that the
court’s strongly worded admonition did not drive P
from the witness stand or infringe upon the defendant’s
constitutional rights. Thus, the defendant has failed to
establish a violation of his constitutional rights as is
required to satisfy the third prong of Golding.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of the crime of criminal violation of a protective order, we decline
to identify the victim or others through whom the victim’s identity may
be ascertained.
1
The court, by way of two other separate informations, also found the
defendant to be in violation of his probation pursuant to General Statues
§ 53a-32. The defendant has not challenged that finding on appeal.
2
Initially at trial, the defendant’s motion for a new trial was based on the
absence of G’s and R’s DNA from the various tested samples taken from
his hand and clothing. Before the trial court, however, he waived his claim
as it pertained to R and, accordingly, pursues his claim only as it relates to
G on appeal.
3
Pursuant to State v. Golding, supra, 213 Conn. 239–40, ‘‘a defendant can
prevail on a claim of constitutional error not preserved at trial only if all
of the following conditions are met: (1) the record is adequate to review
the alleged claim of error; (2) the claim is of constitutional magnitude
alleging the violation of a fundamental right; (3) the alleged constitutional
violation . . . 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. . . . [T]he first two [prongs of Golding] involve a determination of
whether the claim is reviewable . . . and under those two prongs, [t]he
defendant bears the responsibility for providing a record that is adequate
for review of his claim of constitutional error.’’ (Citations omitted; internal
quotation marks omitted.) State v. Elson, 311 Conn. 726, 743–44, 91 A.3d
862 (2014); see also In re Yasiel R., 317 Conn. 773, 780–81, 120 A.3d 1188
(2015) (modifying third prong).
4
According to the defendant, the exculpatory evidence that the court’s
admonition deprived him of was P’s testimony that he was not at the crime
scene during the incident. It is not clear how this testimony would tend to
exculpate the defendant given that P’s blood was found on the defendant’s
body and clothing. That finding, alone, would tend to refute P’s suppression
testimony that the defendant was not present when she was stabbed. In
fact, given the defendant’s acknowledgement in his first claim in this appeal
that P’s blood was found on him, his first and second claims before this
court are inherently contradictory.