State v. Ivan G. S. ( 2014 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. IVAN G. S.*
(AC 34106)
Gruendel, Keller and Schaller, Js.
Argued September 11—officially released December 16, 2014
(Appeal from Superior Court, judicial district of
Fairfield, Kavanewsky, J.)
Charles F. Willson, assigned counsel, for the appel-
lant (defendant).
Emily D. Trudeau, deputy assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and Cornelius P. Kelly, senior assistant state’s
attorney, for the appellee (state).
Opinion
SCHALLER, J. The defendant, Ivan G. S., appeals
from the judgment of conviction, rendered following a
jury trial, of two counts of risk of injury to a child in
violation of General Statutes § 53-21 (a) (2).1 On appeal,
the defendant claims that (1) the trial court should have
ordered a new trial due to the state’s late disclosure of
a police report, and (2) he was deprived of a fair trial
due to prejudicial comments made by the prosecutor
during closing argument. We affirm the judgment of the
trial court.
The jury reasonably could have found the following
facts. J and N, who are sisters, are the biological grand-
daughters of the defendant. The defendant engaged in
sexual conduct with the two girls on more than one
occasion in 2009 during overnight stays at his residence
in Bridgeport. At the time of these occurrences, J and
N were between the ages of six and eight years old.
On June 28, 2009, during a conversation with her
grandmother at the girls’ mother’s home, N reported
what had happened during her stays at the defendant’s.
The grandmother immediately told the girls’ mother
about the accusations. The mother then spoke with J
and N together and they both stated that they were
sexually abused by the defendant. Following this con-
versation, the mother called the police and took J and
N to the hospital. Bridgeport police began to investigate
shortly thereafter.
After the investigation concluded, the defendant was
charged with two counts of aggravated sexual assault
in the first degree in violation of General Statutes § 53a-
70 (a) (2) and two counts of risk of injury to a child in
violation of § 53-21 (a) (2). Following a four day trial,
the defendant was convicted of two counts of risk of
injury to a child in violation of § 53-21 (a) (2) and acquit-
ted of both counts of aggravated sexual assault in the
first degree.
Following trial, the defendant filed a motion for a
new trial, which the court denied. The court thereafter
sentenced the defendant to a total effective term of
seventeen years of imprisonment, suspended after
twelve years, followed by twenty years of probation
on each count of the risk of injury to a child, to run
concurrently. Additional facts will be set forth as nec-
essary.
I
The defendant first claims that the court erred in
denying his motion for a new trial. Specifically, the
defendant argues that the state’s late disclosure of a
police report negatively impacted his trial preparation
and warrants a new trial. The defendant contends that
the report, which contained statements from J’s and
N’s mother, casts doubt on the credibility of J and N
and, therefore, his cross-examination of their mother
would have been different if the report had been dis-
closed earlier. We disagree.
The following additional facts are necessary for the
resolution of the defendant’s claim. On July 6, 2011, the
day before closing arguments, the parties were made
aware of a previously undiscovered police report.2 The
police report was originally produced by a first-
responding officer, Officer Donald Bensey, and indi-
cated that J’s and N’s mother did not initially believe
that their grandfather molested them. Defense counsel
and the prosecutor indicated that they believed that
Officer Bensey did not create his own report, and
instead only referred the case to the Department of
Children and Families via a hotline.
Following an initial review of the police report, the
state sought to admit it for evidentiary purposes to
substantiate an alleged prior consistent statement.
Defense counsel objected and argued that the burden
to produce this document is imputed by law to the state
and that, although he did not believe that the prosecutor
purposely withheld the report, he was prejudiced in
preparing for trial without this information. Specifically,
defense counsel argued that, had the report been made
available, his witness preparation and cross-examina-
tion approach would have been different. In addition
to the objection, the defendant filed a written motion
for a new trial on the same ground, which the court
denied. On appeal, the defendant argues that he was
prejudiced by the late disclosure, but only broadly
states that his approach and preparation would have
been different had the police report been disclosed
earlier. He fails to articulate any specific ways in which
his preparation would have been different.
‘‘[A] motion for a new trial is addressed to the sound
discretion of the trial court and is not to be granted
except on substantial grounds. . . . [Moreover, this
court] will not disturb a trial court’s findings of fact in
ruling on a motion for a new trial unless they are clearly
erroneous.’’ (Citation omitted; internal quotation marks
omitted.) State v. Bellamy, 149 Conn. App. 665, 675–76,
89 A.3d 927, cert. granted on other grounds, 312 Conn.
914, 93 A.3d 597 (2014).
We begin by analyzing the standard set forth in Brady
v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d
215 (1963), and ‘‘its progeny, by which we determine
whether the state’s failure to disclose evidence has vio-
lated a defendant’s constitutional rights. In [Brady v.
Maryland, supra, 87], the United States Supreme Court
held that the suppression by the prosecution of evi-
dence favorable to an accused . . . violates due pro-
cess where the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad
faith of the prosecution. To establish a Brady violation,
the defendant must show that (1) the government sup-
pressed evidence, (2) the suppressed evidence was
favorable to the defendant, and (3) it was material
[either to guilt or punishment].’’ (Internal quotation
marks omitted.) State v. Thompson, 81 Conn. App. 264,
277–78, 839 A.2d 622, cert. denied, 268 Conn. 915, 847
A.2d 312 (2004).
In State v. Thompson, supra, 81 Conn. App. 278, this
court reiterated that ‘‘[e]vidence known to the defen-
dant or his counsel, or that is disclosed, even if during
trial, is not considered suppressed as that term is used
in Brady.’’ (Internal quotation marks omitted.) ‘‘Where
there has been an initial disclosure of exculpatory evi-
dence at trial, the appropriate standard to be applied
is whether the disclosure came so late as to prevent
the defendant from receiving a fair trial. . . . The
defendant bears the burden of proving that he was
prejudiced by the failure of the state to make the disclo-
sure earlier.’’ (Internal quotation marks omitted.) Id.In consideration of the defendant’s claim regarding
trial strategy and cross-examination, we conclude that
the substance of the information contained in the police
interview of J’s and N’s mother was disclosed during
trial and, therefore, not suppressed under Brady. Addi-
tionally, defense counsel noted on the record that he did
not believe that the prosecutor purposefully withheld or
suppressed the report, which further solidifies that the
instant situation does not constitute a Brady violation.
We also note that the defendant did not seek any reme-
dial action when the report was discovered. As the
state suggests, either a continuance or an opportunity
to recall witnesses due to the newly discovered informa-
tion could have been requested.
‘‘There is no denial of due process if the disclosed
material can be utilized effectively at trial, and the
defendant bears the burden of proving that he has been
prejudiced by the late disclosure.’’ Id., 279. In the pre-
sent case, the defendant argues that the information
contained in the police report undermined the credibil-
ity of J and N as witnesses and states that his cross-
examination of their mother would have been different
based on the details within the report. The defendant
fails to expound upon the underlying ways in which his
approach would have been different and falls short of
demonstrating any specificity with relation to prejudice.
We find that the trial court’s observations are well rea-
soned when it stated: ‘‘With respect to the police report,
I do believe that defense counsel had an adequate
opportunity, and essentially elicited much, if not all, of
what was within the report from other witnesses. And
I don’t think that even had that report been available
earlier, it would have changed the outcome of this trial.
So, I don’t believe there was any prejudice in the timing
of its development or the timing in which counsel
became aware of it.’’
After reviewing the record and the defendant’s broad,
unsubstantiated claims of prejudice in this case, we
conclude that his prior lack of information concerning
the contents of Officer Bensey’s report did not prejudice
him or deprive him of a fair trial. ‘‘On this record, the
defendant’s claims of prejudice are purely speculative
and cannot furnish a basis for the reversal of his convic-
tion.’’ (Internal quotation marks omitted.) State v.
Walker, 214 Conn. 122, 128, 571 A.2d 686 (1990). Accord-
ingly, the trial court did not abuse its discretion in
denying his motion for a new trial.
II
The defendant next argues that the prosecutor made
improper comments throughout closing arguments.3
Specifically, the defendant states that the prosecutor
(A) improperly expressed his own opinion about the
defendant’s guilt, and (B) improperly appealed to the
jury’s emotions by placing them in the shoes of J and
N. The state asserts that the prosecutor’s comments
were not improper and, even if they were improper,
the defendant has failed to demonstrate harm so as to
undermine the fairness of his trial. We conclude that
the prosecutor’s comments were not improper.
We begin by setting forth the applicable law regarding
claims of prosecutorial impropriety. ‘‘In analyzing
claims of prosecutorial impropriety, we engage in a two-
step analytical process. . . . We first examine whether
prosecutorial impropriety occurred. . . . Second, if an
impropriety exists, we then examine whether it
deprived the defendant of his due process right to a
fair trial. . . . In other words, an impropriety is an
impropriety, regardless of its ultimate effect on the fair-
ness of the trial.’’ (Emphasis omitted; internal quotation
marks omitted.) State v. Albino, 312 Conn. 763, 771, 97
A.3d 478 (2014). If conduct rises to the level of prosecu-
torial impropriety, a new trial is warranted only in the
event that the defendant can show that the actions were
so egregious that it deprived him of his constitutional
right to a fair trial. State v. Long, 293 Conn. 31, 37, 975
A.2d 660 (2009).
The court bears in mind that prosecutors are public
officials who seek impartial justice on behalf of the
citizens of their respective jurisdictions. Prosecutors
have ‘‘a heightened duty to avoid argument [or ques-
tioning] that strays from the evidence or diverts the
jury’s attention from the facts of the case.’’ (Internal
quotation marks omitted.) State v. Medrano, 308 Conn.
604, 612, 65 A.3d 503 (2013). Despite the necessary
safeguards to limit improper argument, the court recog-
nizes that ‘‘the privilege of counsel in addressing the
jury should not be too closely narrowed or unduly ham-
pered . . . .’’ (Internal quotation marks omitted.) Id.With these principles in mind, we turn to an examina-
tion of the argument at issue.
A
Expression of Personal Opinion
The defendant first claims that, during closing argu-
ment, the prosecutor improperly expressed his personal
opinion regarding the defendant’s guilt and his decision
to testify. The defendant specifically points to the fol-
lowing passage: ‘‘The defendant had some choices. He
had a choice not to testify but he did. He had a choice
not to sexually assault these girls and, again, I leave
that to you as to whether or not that occurred. But
more importantly, he chose these witnesses in this case.
He chose N and he chose J as witnesses. Perhaps he
thought that they wouldn’t be believed or that their
story was so incredulous that no right-minded juror is
going to convict here . . . .’’ The defendant argues that
the prosecutor used ‘‘witness’’ as a proxy for ‘‘victim,’’
indicating that he chose his victims and abused them.
The defendant also contends that with these state-
ments, the prosecutor improperly commented on the
defendant’s decision to testify.4 The state counters that
the prosecutor’s language was consistent with Supreme
Court precedent that cautions against using the word
‘‘victim’’ in criminal cases. See State v. Warholic, 278
Conn. 354, 369–70, 897 A.2d 569 (2006). We agree with
the state.
While a prosecutor is not permitted to interject his
own opinion generally, he must be permitted to speak
to the cumulative evidence he has put forth during the
course of trial. See State v. Santiago, 269 Conn. 726,
750–51, 850 A.2d 199 (2004). Likewise, ‘‘[w]e must give
the jury the credit of being able to differentiate between
argument on the evidence and attempts to persuade
them to draw inferences in the state’s favor, on one
hand, and improper unsworn testimony, with the sug-
gestion of secret knowledge, on the other hand. The
state’s attorney should not be put in the rhetorical
straightjacket of always using the passive voice, or con-
tinually emphasizing that he is simply saying I submit
to you that this is what the evidence shows, or the like.’’
(Internal quotation marks omitted.) Id., 751.
Prohibitions on prosecutorial opinions stem from an
attempt to avoid misleading the jury. Said another way:
‘‘[T]he prosecutor’s opinion carries with it the imprima-
tur of the [state] and may induce the jury to trust the
[state’s] judgment rather than its own view of the evi-
dence. . . . Moreover, because the jury is aware that
the prosecutor has prepared and presented the case
and consequently, may have access to matters not in
evidence . . . it is likely to infer that such matters pre-
cipitated the personal opinions.’’ (Internal quotation
marks omitted.) State v. Stevenson, 269 Conn. 563, 583,
849 A.2d 626 (2004).
In the present case, we disagree with the defendant’s
claim that the prosecutor went beyond the bounds per-
mitted by law in his closing argument. The prosecutor
is permitted to comment on the totality of the evidence
and suppositions that stem therefrom during his closing
argument and, in this instance, did not go beyond what
is permitted. We are not persuaded that comments were
an improper expression of the prosecutor’s opinion
about the defendant and decline to extend the implica-
tions of the word ‘‘victim’’ onto the word ‘‘witness,’’ as
used here.
B
Improper Appeals to the Jurors’ Emotions,
Passions, and Prejudice
The defendant next claims that the prosecutor
attempted to put the jurors in the shoes of J and N in
closing argument when he stated: ‘‘[A]nd the fact of the
matter is, both of them saw it happening to one another
. . . . [B]ut the fact of the matter is, you have a ten
and a nine year-old girl coming in here and testifying
about things perhaps you and I would have some diffi-
culty talking about with loved ones at home, and yet
they came in here, reluctantly pointed their finger over
at their grandfather and said yeah, he’s the person that
committed these horrendous acts.’’ We disagree.
‘‘It must be acknowledged that the line between com-
ments that risk invoking the passions and prejudices
of the jurors and those that are permissible rhetorical
flourishes is not always easy to draw. The more closely
the comments are connected to relevant facts disclosed
by the evidence, however, the more likely they will
be deemed permissible.’’ State v. Albino, supra, 312
Conn. 773.
During trial, J and N both testified that they witnessed
the defendant sexually abusing the other. J’s and N’s
mother testified on two occasions that she did not speak
with her daughters about the events underlying this
conviction, because it is incredibly hard for her given
the nature of the allegations against her father by her
daughters. Review of the transcripts does not reveal
any evidence to establish that the prosecutor was doing
anything other than refuting challenges made by the
defendant about J’s and N’s credibility. We determine
that the prosecutor acted in accordance with Supreme
Court precedent when he asked the jury to contemplate
J’s and N’s testimony from their perspective, an adoles-
cent family member of the defendant’s, rather than a
similarly situated adult. See State v. Long, supra, 293
Conn. 58.
Thus, we conclude that the remarks ‘‘both of them
saw it happening to one another,’’ and ‘‘you and I would
have some difficulty talking about with loved ones at
home, and yet they came in here reluctantly and pointed
their finger over at their grandfather’’ were not
improper, as they were factually accurate descriptions
of the evidence that were not unduly provocative.
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 sexual assault and the crime of risk of injury to a child, we decline
to identify the victims or others through whom the victims’ identities may
be ascertained. See General Statutes § 54-86e; State v. Jose G., 290 Conn.
331, 963 A.2d 42 (2009).
1
General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who
. . . (2) has contact with the intimate parts, as defined in section 53a-65,
of a child under the age of sixteen years or subjects a child under sixteen
years of age to contact with the intimate parts of such person, in a sexual
and indecent manner likely to impair the health or morals of such child
. . . shall be guilty of . . . a class B felony . . . .’’
2
The transcript of the colloquy among counsel and the court provides in
relevant part:
‘‘[Defense counsel]: Neither the State nor I knew of the existence of this
report until a police officer’s name comes up in the [Department of Children
and Families (DCF)] report. So, this was not part of the disclosure . . . .
It’s imputed to the state that they know what’s in the police files. There’s
a direct consequence—
‘‘The Court: [W]hen did you first get this witness’ [police] report?
‘‘[Defense Counsel]: Today.
‘‘The Court: Okay; but you’re saying that it was referenced in the DCF
report?
‘‘[Defense Counsel]: The [police] report wasn’t referenced in the DCF
report; the police officer’s name was referenced in the DCF report.
‘‘The Court: Okay. Can I just hear a little more from the state on that, too?
‘‘[The Prosecutor]: That’s it, your honor. Obviously, there’s an obligation
upon the state to find all police reports. I was not aware of this. We were
under the assumption that it was just a phone call that Officer Bensey made
to the hotline in Middletown.
‘‘The Court: Okay.
‘‘[The Prosecutor]: Because there’s no reference because in the DCF
report, it says the caller . . . . It just references the caller and the caller
spoke to the mother, the caller spoke to the children, and again, that caller
is Officer Bensey.’’
3
In addition to this claim, the defendant also argues that the trial was
‘‘marred with improper conduct.’’ The defendant quotes two sections of the
transcript that he argues demonstrate prosecutorial impropriety, but makes
no argument as to the prejudice or problematic nature of these remarks.
Instead, the defendant remarks that the prosecutor ‘‘holler[ed]’’ at and cut
a defense witness off mid-response and cites commentary he claims was
improper. The defendant failed to adequately brief, and thereby raise, issues
pertaining to this commentary made at trial and, therefore, we do not reach
the merits his claim regarding these comments.
4
The claim was not briefed and, therefore, is deemed abandoned.