Volume 221 — Connecticut Appellate Reports

The petitioner, who had been convicted of the crime of unlawful restraint in the first degree, sought a writ of habeas corpus, claiming, inter alia, that he had been deprived of his right to due process in violation of Brady v. Maryland (373 U.S. 83) when the state failed to disclose to him at his criminal trial a written, sworn statement the victim had given to the police in which she did not mention the incident that led to the petitioner's conviction. The petitioner allegedly had sexually assaulted the victim and, two weeks later, allegedly punched her in the face. Approximately two months after those incidents, the victim reported to the police the incident in which the petitioner allegedly punched her. At that time, she also gave the police the five page statement in which she identified the petitioner as her assailant and detailed the history of their relationship but did not mention the alleged sexual assault, which she did not report to the police until five months later. The petitioner was charged in connection with the first incident with two counts of sexual assault in the first degree and one count of unlawful restraint. A jury found him not guilty of the sexual assault charges. In his habeas petition, the petitioner claimed that the victim's undisclosed statement was material to his defense because the state's case against him rested entirely on the victim's testimony and credibility, the statement repre- sented a comprehensive history of their relationship, and the not guilty verdicts on the sexual assault charges indicated that the jury had rejected portions of the victim's testimony. The habeas court rejected the petition- er's claim that the state violated Brady by failing to disclose the victim's statement. The court determined, and the respondent, the Commissioner of Correction, did not challenge on appeal, that the prosecution had suppressed the statement and that it was favorable to the petitioner. The court further determined, however, that the petitioner failed to establish that the statement was material to his defense, reasoning that the statement would have been cumulative of information that was available to the petitioner at his criminal trial and would not have resulted in a different outcome. The court therefore denied the habeas petition and denied the petitioner's petition for certification to appeal, and the petitioner appealed to this court. Held: 1. The habeas court abused its discretion in denying the petitioner certifica- tion to appeal; the petitioner's Brady claim involved issues that were debatable among jurists of reason and that could have been resolved in a different manner. 2. The habeas court improperly determined that the petitioner failed to demonstrate that the victim's statement to the police was material under Brady: the state's case against the petitioner hinged entirely on the victim's testimony, which the statement could have significantly under- mined had it been disclosed to the defense, as the statement was qualita- tively different from and thus not cumulative of other impeachment material that was available to the defense in that it described incidents of abuse the petitioner had perpetrated on the victim during a six year period both prior to and after the alleged sexual assault, the defense had no similar statement during the criminal trial that set forth a compre- hensive history of the victim's relationship with the petitioner, and, although the defense had other exhibits that detailed other specific incidents of abuse the victim had reported to the police, the utility of those exhibits to attack the victim's failure to report the sexual assault incident was less than the utility of the undisclosed statement; moreover, the petitioner's ability to attack the victim's credibility on other grounds did not undermine the importance of her omission of the sexual assault incident from her undisclosed statement, as, contrary to the respondent's assertion that the victim's statement was not material because the peti- tioner's counsel had argued to the jury that the victim's accusations were not credible, counsel's argument would have been materially enhanced had the jury known of the undisclosed statement; furthermore, despite the respondent's claim that the undisclosed statement was as inculpatory as it was exculpatory, the petitioner's criminal trial counsel testified that he would have cross-examined the victim only about her omission of the sexual assault incident had the victim's statement been disclosed to the defense; additionally, the jury's actions supported the conclusion that a reasonable probability existed that disclosure of the statement could have led to a different outcome for the petitioner, as the not guilty verdicts on the sexual assault charges indicated the jury's doubt about the victim's credibility, and the jury's note to the court during its deliberations asking whether unlawful restraint had to be related to the sexual assault charges indicated that the jury analyzed the victim's testimony closely as to each charge. Argued April 26—officially released August 22, 2023

The plaintiffs, owners of real property in Bridgeport that is benefitted by an express easement over a neighboring property, 145 Anchorage Drive, sought, inter alia, a declaratory judgment defining the permissible uses of the easement and an injunction prohibiting the defendants, G Co., the owner of 145 Anchorage Drive; A Co.; E and A, individuals who owned or controlled G Co. and A Co.; and K Co., a building company, from interfering with their use of the right-of-way over 145 Anchorage Drive. The plaintiffs' property and 145 Anchorage Drive were originally part of a single parcel of land. In the 1920s, M, the then owner, subdivided the parcel into thirteen lots, as depicted on a map that was filed with the town clerk. Lot 13, now known as 145 Anchorage Drive, is a strip of land running from the end of Anchorage Drive to the waterfront. In 1927, M conveyed lot 4, now the plaintiffs' property, to F, the plaintiffs' predecessor in interest, pursuant to a warranty deed that included express easements providing that ''the land designated as Lot No. 13 as delineated on [the] map shall remain open as a right of way for the use and benefit of the grantee'' and that ''the land on [the] map designated as Anchorage Drive shall remain open for appropriate street purposes . . . for the use and benefit of the grantee . . . .'' The easements granted in F's deed were referenced in all of the deeds thereafter con- veying ownership of the plaintiffs' property, and all of the deeds con- veying ownership of 145 Anchorage Drive indicated that the property was subject to certain easements appurtenant to the other lots on the map. For many years, the plaintiffs and other easement holders used the right-of-way to access the waterfront, including traversing the length of 145 Anchorage Drive on foot and in motor vehicles, to park vehicles on the property, and to store and launch boats, kayaks, and paddleboards. In 2017, G Co. purchased 145 Anchorage Drive and A Co. purchased the adjacent property, 141 Anchorage Drive. Thereafter, K Co. began to construct a large residence on 141 Anchorage Drive for E and A. In connection with the construction, K Co. erected a temporary fence and gate along the western borders of 141 Anchorage Drive and 145 Anchorage Drive, where those properties abut Anchorage Drive, which blocked the plaintiffs' access to the right-of-way. G Co. and A Co. indi- cated that, following the completion of construction, they intended to allow the plaintiffs and other easement holders to access the right-of- way through a pedestrian gate only and that access through a motor vehicle gate would be limited to E and A. The plaintiffs commenced this action, claiming that the defendants, by reason of their construction activities and the building of the fence and other improvements, unrea- sonably interfered with the plaintiffs' use and enjoyment of the easement. The trial court found, inter alia, that the plaintiffs' right-of-way was limited to foot passage only. It denied the plaintiffs' request for an injunction, concluding that, once the construction work was completed, the plaintiffs would have access to the entirety of 145 Anchorage Drive, and it further concluded that, because the easement was limited to foot passage, the fence and gate restricting motor vehicle access did not interfere with the plaintiffs' rights. On the plaintiffs' appeal to this court, held that, because the granting language used in F's deed was clear and unambiguous when considered in light of the situation of the parties, the properties, and the circumstances connected with the transaction, this court's standard of review of the plaintiffs' claim was plenary, and, as a matter of law, the plaintiffs' easement was not limited to foot passage only: F's deed and the map expressly granted the easement holders a general right-of-way in terms that were clear and unambiguous, as neither document contained any specifications regarding the manner in which 145 Anchorage Drive should be used or imposed any limitation on the scope of the easement; moreover, because the trial court's con- struction of the deed was incorrect as a matter of law, as that court failed to give effect to the language in F's deed that granted an open right-of-way in general terms without restrictions on its use, the trial court also erred in its determination of the scope of the easement as limited to foot passage, as the scope of the easement must be construed to include any reasonable use to which the land may be devoted; further- more, in determining the scope of the easement, the trial court erred in limiting its consideration to what it viewed as the circumstances that existed at the time the easement was granted, rather than considering whether the plaintiffs' use of the easement was reasonable in light of the broad language of the grant, and its conclusion as to the import of those circumstances was incorrect because the trial court's reliance on the right-of-way over Anchorage Drive for its conclusion that the grantor intended to permit vehicular traffic on Anchorage Drive but not over 145 Anchorage Drive was misplaced, as the grantor limited the scope of the use over Anchorage Drive but did not include such a restriction in the easement over 145 Anchorage Drive, the extratextual evidence of the surrounding circumstances that the trial court relied on, including photographs from the early 1900s of the area surrounding 145 Anchorage Drive, did not support its conclusion, as the fact that the photographs did not display any vehicles or evidence of their use was not proof that M intended to prohibit passage via motor vehicle and the plaintiffs were not restricted to the reasonable uses that existed at the time the easement was granted, it was undisputed that 145 Anchorage Drive was large enough to accommodate recreation and parking, the plaintiffs and others had been using the lot for such purposes for decades, and there was an inference that M understood the easement over 145 Anchorage Drive to include the right to travel by motor vehicle, as he granted himself the same easement appurtenant to 141 Anchorage Drive as the only means of accessing that property by motor vehicle; accordingly, a new trial was required because the trial court, in failing to give proper effect to the unrestricted language of F's deed, failed to consider whether the plaintiffs' use of the easement was reasonable. Argued May 8—officially released September 26, 2023

The defendant, who had been convicted of conspiracy to commit murder, appealed to this court from the judgment of the trial court revoking his probation and sentencing him to thirteen years of imprisonment. The defendant had signed a form that contained conditions of probation that required, inter alia, that he not violate any criminal laws of this state. Thereafter, the defendant's probation officer received information that the defendant was a suspect in a home invasion. In the warrant application for the defendant's arrest, a police officer indicated that the defendant had been positively identified in a photographic array by R, a complaining witness to the home invasion. Prior to the probation revocation hearing, the defendant filed three motions with the court, seeking to suppress evidence of the photographic array identification as well as any testimony related to R's statements surrounding his identification of the defendant throughout the course of the investigation into the home invasion. The defendant specifically asked the court to engage in the balancing test referenced in State v. Crespo (190 Conn. App. 639), weighing the defendant's interest in confronting R against the state's reasons for not producing R and the reliability of the proffered hearsay, and to preclude testimony from any witness regarding R's identification of the defendant if the state did not present R as a witness. The state later located and offered to produce R, but he indicated that, if he were called to testify, he would invoke his fifth amendment right against self-incrimination and, thus, the court found that he was unavail- able to testify. After the court's determination that R was unavailable, defense counsel argued that Crespo no longer applied and that the defendant's right to due process would be violated by the court's consid- eration of unreliable hearsay and a total inability to confront R. The court denied the defendant's motions and engaged in an evaluation of the reliability of the exhibits and subsequent testimony, finding them to be sufficiently reliable. The court found that the defendant had vio- lated the terms of his probation. Held: 1. This court declined to consider the merits of the defendant's claim that the trial court violated his due process right to confrontation under the fourteenth amendment when it failed to apply the balancing test referenced in Crespo, the defendant having abandoned that claim: although the defendant maintained his objection to the admission of R's identification evidence based on a due process right to confrontation, defense counsel acknowledged during the probation revocation hearing that, because R ultimately was unavailable due to his invocation of his right to remain silent, the ''whole issue'' was ''reliability,'' as R had consumed both marijuana and alcohol on the night of the home invasion; moreover, the record reflected that defense counsel changed tactics after R invoked his fifth amendment rights, disclaimed his initial request that the court apply the Crespo balancing test and stated that ''circum- stances have changed.'' 2. The trial court did not abuse its discretion in admitting certain hearsay evidence relating to R's identification of the defendant; the court engaged in sufficient review and evaluation of the hearsay evidence to conclude that that evidence was relevant, reliable and probative, including that, R, in audiovisual recordings, identified the defendant with a high degree of confidence and did not significantly vary in his explanation of what happened or how he knew it was the defendant, that R's identification was corroborated by other evidence, that R's descriptions to the police of the home invasion included a number of statements against penal interest, and that a video recording of the double-blind photographic array identification revealed nothing unduly suggestive about the proce- dure. Argued March 8—officially released October 3, 2023

Pursuant to statute (§ 53a-71 (a) (8)), a person is guilty of sexual assault in the second degree when that person engages in sexual intercourse with another person and, inter alia, the actor is a school employee and the other person is a student enrolled in a school in which the actor works. The defendant, who had been convicted, following a conditional plea of nolo contendere, of the crime of sexual assault in the second degree, appealed to this court, claiming that the trial court improperly denied his motions to dismiss. The defendant was employed as an assistant soccer coach for a girls soccer team at a local public high school. The victim attended the same high school and was a player on the girls soccer team. The victim, then seventeen years old, and the defendant began a sexual relationship in November, 2018, after the end of the soccer season, and the relationship continued through August, 2019. From the start of their relationship until the end of the school year, the victim remained a student at the high school but was no longer a member of the soccer team as a result of the season ending. The high school principal stated to the police that the defendant had resigned his position as a coach of the girls soccer team following their meeting in May, 2019, due to his travel associated with his employment as a pharmaceutical representative and his recent move. The defendant was arrested and charged, by way of a substitute information, with sexual assault in the second degree in violation of § 53a-71 (a) (8). The defendant filed two motions to dismiss the substitute information, both of which the court denied. Thereafter, the defendant entered a plea of nolo contendere that was conditioned on his right to appeal the denials of his motions to dismiss. On the defendant's appeal to this court, held: 1. The trial court properly denied the defendant's first motion to dismiss that claimed that the facts set forth in the arrest warrant affidavit were insufficient to support a finding of probable cause that the defendant committed the crime of sexual assault in the second degree in violation of § 53a-71 (a) (8) because he was not a school employee under the statutory definition: contrary to the defendant's claim, the contents of the arrest warrant affidavit and the additional information contained in the state's proffer in response to the first motion to dismiss, viewed in the light most favorable to the state, set forth sufficient facts to show probable cause that would warrant a person of reasonable caution to believe that the defendant was a school employee, as defined by statute (§ 53a-65 (13)), at the time that he had engaged in sexual intercourse with the victim in violation of § 53a-71 (a) (8), including the defendant's attendance at a January, 2019 soccer banquet, his participation at fitness drills for the high school girls soccer team in the spring of 2019, his discussions with the head coach of the high school girls soccer team in the spring of 2019, his attendance at a meeting in May, 2019, with the high school administration regarding his alleged relationship with the victim, and his oral resignation of his position as an assistant coach for the soccer team following that meeting; moreover, the question of whether the defendant was an employee was a factual question, and therefore a key inquiry for the jury to consider, as well as an element of the offense charged. 2. The defendant could not prevail on his claim that the trial court improperly denied his second motion to dismiss that alleged that § 53a-71 (a) (8) is unconstitutionally overbroad: a. This court was not persuaded by the state's argument that, because the trial court conducted a vagueness analysis in its memorandum of decision denying the defendant's second motion to dismiss, rather than addressing the overbreadth argument, and the defendant failed to make any effort to bring this discrepancy to the trial court's attention, the defendant's overbreadth claim was unreviewable: because the defendant appealed pursuant to the statute (§ 54-94a) governing appeals from condi- tional pleas of nolo contendere, this court was limited to a determination of whether it was proper for the trial court to have denied the motions to dismiss, which was the very claim raised by the defendant in his appeal, and in making his claim concerning the denial of his second motion to dismiss, he argued that the denial of his motion was improper because § 53a-71 (a) (8) was unconstitutionally overbroad, the same argument he raised in his second motion to dismiss, at the hearing on that motion and on his conditional plea form, bringing the claim within the parameters of § 54-94a and, thus, making it reviewable; moreover, although the trial court failed to address the overbreadth claim in its memorandum of decision, this court's review of the overbreadth claim was appropriate under the circumstances of this case in light of the level of review this court affords to such claims and to decisions denying motions to dismiss, including that the overbreadth claim was not a new claim raised for the first time on appeal, the issue was fully briefed and argued before the trial court, both parties briefed the issue in their appellate briefs, the state conceded at the hearing before the trial court that it had no objection to the court making a finding that its rulings denying the motions to dismiss were dispositive of the case, and the state suffered no prejudice in light of this court's conclusion that the defendant could not prevail on the merits of the claim. b. The defendant failed to meet his burden of demonstrating that the constitutional rights of individuals are substantially burdened in relation to the plainly legitimate sweep of § 53a-71 (a) (8), as the state has a legitimate interest in promoting a safe and healthy school environment for elementary and secondary school students by prohibiting teachers or other school employees from using a position of authority to pursue a sexual relationship with students enrolled in the educational system in which they are employed and misusing their access to students as a conduit for sexual activity; moreover, although the defendant provided a list of hypothetical scenarios in which § 53a-71 (a) (8), through its incorporation of the definition of a school employee in § 53a-65 (13), criminalizes conduct that he alleged would not advance the legitimate goal of protecting students, the defendant failed to demonstrate that § 53a-71 (a) (8) encompasses a substantial amount of constitutionally protected conduct, as the mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge; furthermore, there must be a realistic danger that the statute itself will significantly compromise recognized first amendment protections of parties not before the court for it to be facially challenged on overbreadth grounds, the defendant did not make any showing that there are real individuals who fall into the hypothetical situations set forth in his second motion to dismiss or specify whose relationships have been chilled by the allegedly overbroad statute, the record contained no information or data concerning the percentage of adult students who are affected by the statute in relation to its legitimate sweep of protecting school students, the vast majority of whom likely are not adults, and the defendant's speculation about the impact of the statute on those hypothetical relationships was insuffi- cient to demonstrate its overbreadth. Argued April 18—officially released October 3, 2023