STATE v. GILBERTO L., SC 18213

Judicial District of Fairfield

 Criminal; Mistrial; Prosecutorial Impropriety; Whether the Defendant was Denied his Right to be Present During a Critical Stage in the Criminal Proceeding. The defendant was charged with sexual assault and risk of injury to a child in connection with allegations of misconduct involving an eight year old girl.  After the jury had begun its deliberations, a request was made that the testimony of the complaining witness and of the defendant be played back.  After the jury had heard some of the playback, court recessed for the day.  Before court reconvened two days later, the defendant fell ill and had to be hospitalized.  The court excused the jury that day and the next day, informing the jurors that something had come up that had to be taken care of.  When, after court convened for a third time and the defendant remained hospitalized, defense counsel moved for a mistrial, claiming that the trial was at a critical stage and that the defendant would be prejudiced should it continue in his absence.  The trial judge ordered that the trial proceed but instructed the jury that it was to draw no negative inference from the defendant's absence.  Following continued playback of testimony and deliberation, the verdict was announced in the defendant's presence.  On appeal from his conviction of   two counts of risk of injury, the defendant claims that the trial court's denial of his motion for a mistrial deprived him of his constitutional right to be present at all critical stages of his trial.  He contends that the continued jury deliberations and playback of testimony constituted critical stages in the proceeding and that the court's instructions to the jury were inadequate to nullify the prejudice that resulted from his absence.  The defendant also claims that prosecutorial impropriety during closing argument deprived him of a fair trial.  He argues, among other things, that the prosecutor improperly appealed to the jurors' emotions in speaking about the victim, effectively chastised the defendant for exercising his right to a jury trial and misstated the law concerning the state's burden of proof.