STATE v. TOMAS D., SC 18415

Judicial District of Waterbury


      Criminal; Due Process; Prosecutorial Impropriety; Sufficiency of the Evidence; Whether Prosecutor's Failure to Provide Timely Notice of her Decision to Release Lead Investigator from his Subpoena Violated Defendant's State and Federal Due Process Rights and Constituted Prosecutorial Impropriety; Whether Evidence was Insufficient to Support Defendant's Convictions.  The state accused the defendant of sexually assaulting the complainant when she was twelve years of age.  After a trial, the jury found the defendant guilty of sexual assault in the first degree, unlawful restraint in the first degree and risk of injury to a minor.  Subsequently, he filed motions for a judgment of acquittal and for a new trial, arguing, among other things, that certain evidence presented at trial established, as a matter of law, a reasonable doubt that he had committed the crimes charged.  He explained that the complainant's school records and the testimony of her homeroom teachers demonstrated that she was at school during the time when, according to the state, he had been sexually assaulting her at his residence.  He further maintained that the prosecutor engaged in prosecutorial impropriety by failing to call the lead investigator of the case, Sergeant Scott Stevenson, as a witness after having repeatedly stated during the course of the trial that she would likely do so.  He contended that the prosecutor improperly waited to inform him that she would not be using Stevenson as a witness until after she had rested her case even though, several days earlier, she had released Stevenson from his subpoena, fully cognizant of the fact that he intended to go on vacation.  After the trial court denied the defendant's motions, he filed this appeal, arguing that the evidence was insufficient to support his convictions in light of the evidence concerning the complainant's presence at school at the time of the incident in question and given that the complainant's testimony was inconsistent and contradictory.  The defendant also claims, among other things, that the prosecutor's failure to provide timely notice of her decision to release Stevenson from his subpoena violated the defendant's state and federal due process rights and constituted prosecutorial impropriety.  The defendant maintains that, as a result of the prosecutor's conduct, Stevenson was effectively permitted to avoid a defense subpoena, thereby denying the defendant the opportunity to question before the jury a critical witness who was the only person who had interviewed both the complainant and the defendant concerning the alleged assault.