State v. Lanasa
State v. Lanasa
Opinion of the Court
Opinion
The defendant, Sandra Lanasa, appeals from the judgment of conviction, rendered after a jury trial, of one count of illegal sexual contact with a child in violation of General Statutes § 53-21 (a) (2) and one count of risk of injury to a child in violation
In a long form information, the defendant was charged with one count of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1),
I
The defendant first claims that the court improperly granted the state’s request for a continuance so that the victim could be present for closing arguments. She argues that the prosecutor’s seeking a continuance on behalf of the victim was improper advocacy in excess of her authority, statutorily and under the rules of professional conduct, and thus, prosecutorial impropriety in violation of the defendant’s due process rights.
We begin with our standard of review. “A motion for continuance is addressed to the discretion of the trial court, and its ruling will not be overturned absent a showing of a clear abuse of that discretion. . . . Every reasonable presumption in favor of the proper exercise
The following additional facts and procedural history are necessary to resolve this claim. On the second day of trial, May 26, 2011, the state rested. After the court had excused the jury, it noted that the defendant would “have an opportunity to present a defense tomorrow, if [she] chooses to do so.” It denied the state’s motion in limine to preclude testimony of the defendant’s expert witness and ordered the defendant to produce her expert the next day. The court noted that it had been very clear that all parties had to make efforts to produce their witnesses and that as “a practical matter, the case needs to be done as soon as practical because the state of Connecticut and defense counsel are prepared to proceed on [another] evidentiary matter . . . next week on Wednesday [June 1, 2011] .... So we do need to proceed tomorrow, and I’m expecting everybody to be ready.”
The next day, on Friday, May 27, 2011, the defendant rested. When the state inquired about scheduling for the rest of the day, the court indicated that it would proceed with a charging conference, closing arguments and the charge to the jury. At that point, the prosecutor requested that closing arguments not go forward because the victim’s advocate had an outstanding medical appointment and would not be available for the
After a brief recess, another prosecutor, who had been working with the prosecutor trying the case, addressed the court and argued for the continuance. She requested that oral arguments be scheduled for Wednesday, June 1, 2011, at 2 p.m. to allow the victim to be present. She argued that if the defendant had presented a defense, closing arguments necessarily would have been scheduled for June 1 because defense counsel had represented that the defendant’s case would take approximately two days, Monday, May 30, 2011, was a holiday and the prosecutor trying the case had indicated that he would not be available on Tuesday, May 31, due to a commitment in federal court. Furthermore, she maintained, the victim was not available that afternoon due to a school event out of the state and had a constitutional statutory right to be present.
The court remarked that “it [is] important to observe, obviously, the rights of the victims, as well, and to no lesser extent the rights of the accused. . . . We’re at a point where the defense rested without presenting a defense, and certainly [although] the court, and all parties anticipated a potential expert ... it is the [defendant’s] right to not present a defense . . . .”
Defense counsel then argued against the continuance. She first pointed out that the state had notice that the defendant did not know if she would present a defense until after hearing the state’s witnesses and determining what documents might be admitted for cross-examination. She stated that “a delay in this trial would result in abridging the rights of the defendant.” Defense counsel maintained that everyone was aware of the scheduling and the need to move forward and that the state should have made appropriate provisions
In an oral decision, the court granted the state’s request for a continuance. It noted that jury selection had taken several days and that the proceedings had been interrupted, to an extent, when one of the witnesses had to interrupt his testimony in order to comply with a subpoena duces tecum. The court gave the defendant the option of reopening her case, if she chose to do so, to produce witnesses. Stating that it held “very serious the rights of the accused in obtaining a fair trial, having this case decided by a jury of her peers,” the court nevertheless reasoned that “other than a claim that somehow it’s prejudicial to the defense, the court
Although the defendant has detailed the ways in which she feels that the court abused its discretion in granting the continuance, she has not demonstrated how she was actually harmed by the continuance or explained how the outcome of the trial would have been different had the court denied the request for a continuance. Thus, the defendant has not shown actual prejudice. See Irving v. Firehouse Associates, LLC, supra, 82 Conn. App. 720. Accordingly, we conclude that the court did not abuse its discretion in granting the state’s request for a continuance.
II
The defendant also claims that the court improperly instructed the jury in two ways: (1) the court failed to instruct the jury about the credibility of the victim given his age and immaturity and (2) the court failed to adequately inform the jury of its right to view a trial exiúbit that was accessible only by computer. We disagree with both claims.
“We begin with the well established standard of review governing the defendant’s challenge to the trial court’s jury instruction. Our review of the defendant’s
A
The defendant first claims that the court failed to instruct the jury regarding the credibility of the victim given his age and immaturity. According to the defendant, the victim falls under one of the exceptions to the general rule against instructing juries about the credibility of specific witnesses and that it was appropriate for the court to have done so in this case because the victim could have been subject to school and parental discipline. We disagree.
The following additional facts are necessary to resolve this claim. At the charging conference, defense counsel asked the court to accept her charge regarding
The defendant concedes that the victim would not have been subject to criminal liability as a result of his involvement in the incident. Nevertheless, she urges us to conclude that a specific instruction on the credibility of the victim was warranted because he could have faced suspension from school, discipline from his parents or a delinquency referral if the allegations were proven to be false. We decline to do so. A specific charge about the complaining witness is only appropriate when
B
The defendant also claims that the court failed to adequately inform the jury about its right to view a trial exhibit that was accessible only by computer. She argues that the court’s interruption during her closing argument was unwarranted and that its later instruction added to the confusion, making it reasonably probable that the jury was misled. We disagree.
The following additional facts are necessary to resolve this claim. During the cross-examination of one of the state’s witnesses, state police Trooper Max Freyer, the defendant introduced as a full exhibit a computer disk that contained four documents that were comprised of the victim’s cell phone records. During closing argument, defense counsel examined the contents of the disk with the jury and three times made comments that the jury would have access to the documents on the disk during deliberations. After the third remark, the court interrupted her closing argument and noted that the disk, but not a computer was in evidence. When defense counsel stated that she thought that the court would provide a computer, the court remarked that the issue had not been discussed, but that “if the jury were to request such an item that the issue could be taken up.”
The next day, defense counsel presented a laptop computer that had been purchased the previous night, with only Adobe software installed on it, and requested that it be allowed in the deliberation room. The state objected, arguing that a computer should have been obtained through the clerk’s office and that defense counsel should have addressed the issue earlier if she intended to introduce the computer into the jury room. Defense counsel responded that a computer was the only way that the jury could view the evidence, that the clerk’s office did not have an available computer and that the court could mark the computer as a court exhibit so that it would remain in the custody of the court.
After remarking that defense counsel had shown the jury the contents of the disk during closing arguments, that the jury was told that it could request anything that it needed, that the court would be inclined to grant a request for a computer and that the defendant had offered the disk by itself, the court denied defense counsel's request to put the computer in the deliberation room absent a request by the jury.
Defense counsel then asked that the jury be instructed that they could have access to a computer because the court interrupted her during her closing argument and there was discussion in front of the jury
“It is well established that . . . [i]n properly instructing the jury it may or may not be necessary for the court to recall the attention of the jury to the evidence ... or to comment [on] the evidence or [to] express an opinion as to its weight .... In reviewing whether the trial court must comment on any evidence that has been presented, we examine not only the entire jury charge . . . but also the presentation of the issues to the jury by counsel in the context of the trial. Within constitutional limitations concerning trial by jury, the nature and extent of the trial court’s comments on the evidence must largely depend on the facts involved in a particular case and the manner in which it has been tried. . . . The extent to which a court should comment on the evidence is largely a matter within its sound discretion. ... In some cases, where the issues are complicated, peculiar, or capable of differing conclusions, comment by the court is necessary. On the other hand, if the issues are clearly enumerated and the argument of counsel has fairly presented the case, a discussion in the charge of the details of the evidence may defeat its proper purpose.” (Citation omitted; internal quotation marks omitted.) State v. Flores, 301 Conn. 77, 98-99, 17 A.3d 1025 (2011).
The judgment is affirmed.
In this opinion the other judges concurred.
We note that the defendant’s appeal form and the judgment file both indicate that the defendant is appealing from the denial of her motion for waiver of fees and costs, which was filed on December 9, 2011, nearly four months after she was sentenced. Not only was the motion for waiver of fees and costs late; see Practice Book §§ 63-7 (“[a]ny defendant in a criminal case who is indigent . . . may, within the time provided by the rules for taking an appeal, make written application to the court . . . for relief from payment of fees, costs and expenses”) and 63-1 (a) (“an appeal must be filed within twenty days of the date notice of the judgment ... is given”); but also the denial of a motion for waiver of fees is not appealable. The “[djenial of a motion for waiver of fees is not an appealable final judgment. Review of such a denial is properly sought in a motion for review” pursuant to Practice Book § 66-6. Cortes v. Cotton, 31 Conn. App. 569, 570 n.2, 626 A.2d 1306 (1993); see also Practice Book § 63-7 (“[t]he sole remedy of any defendant desiring the court to review an order concerning the waiver of fees, costs and security . . . shall be by motion for review under Section 66-6”). It is clear, however, from her preliminary statement of the issues submitted with her appeal form that the defendant is challenging the judgment of conviction, which is an appealable final judgment. We do not condone the actions of the defendant, however, we will consider her appeal on the merits. See Brown v. Rosen, 36 Conn. App. 206, 210, 650 A.2d 568 (1994) (denying motion to dismiss appeal on ground of lack of final judgment where appeal form improperly indicated appeal from order that was not final judgment, but clear from preliminary statement of issues that appellant did appeal final judgment); cf. Rocque v. DeMilo & Co., 85 Conn. App. 512, 527-28, 857 A.2d 976 (2004) (dismissing claims where challenged ruling not indicated on appeal form and raised for first time in appellate brief).
Moreover, the state failed to object to the late filing or improper appeal form and submitted a substantive response to the defendant’s brief. Thus, any defect has been waived by the state. See Froom Development Corp. v. Developers Realty, Inc., 114 Conn. App. 618, 624-25, 972 A.2d 239 (improper appeal form), cert. denied, 293 Conn. 922, 980 A.2d 909 (2009); Rubenstein v. Rubenstein, 107 Conn. App. 488, 498-99, 945 A.2d 1043 (untimely appeal), cert. denied, 289 Conn. 948, 960 A.2d 1037 (2008).
The defendant argues, in the alternative, that if the prosecutorial impropriety does not rise to the level of a due process violation, then this court should nevertheless invoke its supervisory authority over the administration of justice and order a new trial.
The defendant’s requested charge stated in relevant part: “No witness’ testimony is inherently less worthy of belief simply because of the age of the witness. In this case the complaining witness ... is alleged to have been between the ages of [thirteen] and [sixteen]. If the [s]tate proves that fact beyond a reasonable doubt you may consider, after weighing all of the evidence, the fact that the United States Supreme Court and our [s]tate Supreme Court have found that persons under the age of [eighteen] years may lack maturity and are more reckless than adults. A lack of responsibility and an underdeveloped sense of responsibility may be found in youth more often than adults which may lead to a lack of appreciation for the consequences of their actions which is a factor you may consider in determining [the complaining witness’] credibility.”
The court charged the jury twice, once inadvertently before closing arguments and again after closing arguments. With the exception of stating, “A word about credibility of the witnesses,” during the second charge, both charges were given as follows: “In deciding what the facts are you must, of course, consider all the evidence. In doing this you must decide which testimony to believe and which testimony not to believe. You may believe all, none, or any part of any witness testimony. In making that decision you may take into account a number of factors, including the following: Was the witness able to see or hear or know of the things about which that witness testified? How well was the witness able to recall and describe those things? What was the witness’ manner while testifying? Did the witness have an interest in the outcome of this case, or any bias or prejudice concerning any party, or any matter involved in the case? How reasonable was the witness’ testimony when considered in light of all of the evidence in the case? And was the witness’ testimony contradicted by what that witness has said or done at another time, or by the testimony of other witnesses or by other evidence?
“If you believe that a witness has deliberately testified falsely in some respect you should carefully consider whether you should rely upon any of his or her testimony. Whether you credit a witness’ testimony in whole, or in part, or not at all, is solely for you the jury to determine using your experience, knowledge of human nature, common sense, and awareness of the motives which influence and control human nature.
“In deciding whether or not to believe a witness, keep in mind that people sometimes forget things. You need to consider therefore whether a contradiction is an innocent lapse of memory or an intentional falsehood
Case-law data current through December 31, 2025. Source: CourtListener bulk data.