State v. A. M. ( 2015 )

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STATE OF CONNECTICUT v. A. M.*
(AC 34910)
Lavine, Alvord and Harper, Js.
Argued October 16, 2014—officially released March 24, 2015
(Appeal from Superior Court, judicial district of
Danbury, Pavia, J.)
Bethany L. Phillips, for the appellant (defendant).
Jennifer F. Miller, special deputy assistant state’s
attorney, with whom, on the brief, were Stephen J.
Sedensky III, state’s attorney, and Colleen P. Zingaro,
assistant state’s attorney, for the appellee (state).
Opinion
HARPER, J. The defendant, A. M., appeals from the
judgment of conviction, rendered following a jury trial,
of attempt to commit sexual assault in the first degree
in violation of General Statutes §§ 53a-49 (a) (2) and
53a-70 (a) (2), three counts of risk of injury to a child
in violation of General Statutes § 53-21 (a) (2), two
counts of risk of injury to a child in violation of General
Statutes § 53-21 (a) (1), sexual assault in the first degree
in violation of General Statutes § 53a-70 (a) (2), and
sexual assault in the fourth degree in violation of Gen-
eral Statutes § 53a-73a. On appeal, the defendant claims
that (1) the trial court improperly denied his motion for
a judgment of acquittal because there was insufficient
evidence to sustain the jury’s verdict, (2) he was denied
his right to a fair trial as a result of prosecutorial impro-
priety that occurred during rebuttal argument, (3) the
court improperly determined that the complainant’s
confidential records should not be disclosed to the
defendant, (4) the court improperly permitted the state
to reopen the direct examination of the complainant, (5)
the court improperly allowed a video recorded forensic
interview (forensic video) to be admitted into evidence
under the tender years exception to the rule against
hearsay and under the Whelan rule,1 and (6) the court
violated his rights under the federal and state constitu-
tions when it admitted the forensic video, specifically,
his right to confront the complainant under Crawford
v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed.
2d 177 (2004).2 We agree with the defendant in regard
to his second claim, and, therefore, reverse the judg-
ment of conviction and remand the case for a new trial.
The jury reasonably could have found the following
facts. The defendant was dating the complainant’s
mother, H, and moved into H’s house with the complain-
ant, and H’s two other children in the late summer of
2003. In August, 2009, the complainant told H’s cousin,
A.K., that the defendant had touched her inappropri-
ately. Specifically, she told A.K. that the defendant inap-
propriately touched her buttocks while she was
cleaning dishes. After A.K. alerted H about the allega-
tions, H allowed the defendant to ask the complainant
about the allegations, and he apologized if he ‘‘ever
touched [her] in any way . . . .’’
In March, 2010, a family member of H went to the
complainant’s father, J, and spoke to him about the
allegations. The next day, J spoke with the complainant
and, during their conversation, the complainant cried
and told him that the defendant had grabbed her but-
tocks. J reported the allegation to the Danbury Police
Department and spoke to Officer Joseph Pastrana. After
J reported the allegations to Pastrana, J and members
of the Danbury Police Department visited the complain-
ant’s home in order to evaluate her well-being. At the
home, Pastrana spoke to the defendant, who denied
any wrongdoing, and the complainant spoke with a
female officer and informed that officer that the defen-
dant had touched her inappropriately. At this time, for
her safety, the complainant was removed from the home
for two nights.
Pastrana then contacted the Danbury Police Depart-
ment youth bureau as well as the Department of Chil-
dren and Families. The defendant provided a sworn
statement to the youth bureau, in which he denied any
wrongdoing and hypothesized that the allegations per-
haps stemmed from his strict parenting style. Mean-
while, on March 25, 2010, Donna Meyer, a forensic
interviewer and director of the Danbury Multi-Disciplin-
ary Team (team), interviewed the complainant regard-
ing the alleged sexual abuse. This interview was
videotaped as well as transcribed. The complainant told
Meyer of various events of sexual abuse by the defen-
dant. The dates of these incidents initially were
described to Meyer as occurring after August, 2009, and
later were stated by the complainant to have occurred
before such time. The present matter commenced with
the execution of an arrest warrant on April 20, 2010.
The complainant further was examined on April 29,
2010, by Veronica Ron-Priola, a medical examiner for
child abuse cases. Ron-Priola testified at trial that there
was no physical evidence of sexual abuse, but stated
that a lack of evidence would not necessarily be incon-
sistent with the complainant’s allegations of sexual
abuse.3 After this examination, Ron-Priola spoke to the
team regarding her concern for the complainant.
The defendant’s trial began on March 30, 2012, and
concluded on May 3, 2012. The state called the com-
plainant to testify. At this time, the complainant was
twelve years old. The complainant initially stated that
the defendant sexually assaulted her six or seven times
by inappropriately touching her buttocks. Later during
her testimony, the complainant stated that the defen-
dant inappropriately touched her maybe two or three
times. During cross-examination, the complainant
stated that she had lied about what she had said to H,
regarding the defendant. Later during trial, the com-
plainant refused to testify to any other incident involv-
ing the defendant other than when he allegedly touched
her buttocks. The defendant subsequently presented
witnesses during trial to attack the complainant’s credi-
bility.
On May 3, 2012, the jury found the defendant guilty
of attempt to commit sexual assault in the first degree,
five counts of risk of injury to a child, sexual assault
in the first degree, and sexual assault in the fourth
degree. The defendant filed a motion for a judgment
of acquittal, which was denied. Thereafter, the court
sentenced the defendant to a total effective term of
twenty years imprisonment, execution suspended after
twelve years, followed by twenty years of probation
with special conditions. On August 7, 2012, the defen-
dant filed the present appeal. Additional facts will fol-
low as necessary.
I
The defendant first claims that the court improperly
denied his motion for a judgment of acquittal because
the evidence was insufficient to support his conviction.
We review this claim first due to the nature of the
remedy. ‘‘[I]f the defendant prevails on the sufficiency
claim, [he] is entitled to a directed judgment of acquittal
rather than to a new trial.’’ State v. Moore, 100 Conn.
App. 122, 126 n.2, 917 A.2d 564 (2007). The defendant
claims that because the forensic video was inadmissible
as evidence and the complainant’s testimony was incon-
sistent both in the forensic video and at trial, the evi-
dence presented at trial was ‘‘insufficient to permit the
jury to find him guilty beyond a reasonable doubt.’’
We disagree.
‘‘Our standard of review for claims of insufficient
evidence is well settled. [W]e apply a two part test. First,
we construe the evidence in the light most favorable to
sustaining the verdict. Second, we determine whether
upon the facts so construed and the inferences reason-
ably drawn therefrom the [jury] reasonably could have
concluded that the cumulative force of the evidence
established guilt beyond a reasonable doubt. . . .
[P]roof beyond a reasonable doubt does not mean proof
beyond all possible doubt . . . nor does proof beyond
a reasonable doubt require acceptance of every hypoth-
esis of innocence posed by the defendant that, had it
been found credible by the trier, would have resulted
in an acquittal. . . . On appeal, we do not ask whether
there is a reasonable view of the evidence that would
support a reasonable hypothesis of innocence. We ask,
instead, whether there is a reasonable view of the evi-
dence that supports the jury’s verdict of guilty.’’ (Inter-
nal quotation marks omitted.) State v. Cancel, 149 Conn.
App. 86, 95, 87 A.3d 618, cert. denied, 311 Conn. 954,
97 A.3d 985 (2014).
‘‘In evaluating evidence, the trier of fact is not
required to accept as dispositive those inferences that
are consistent with the defendant’s innocence. . . .
The trier may draw whatever inferences from the evi-
dence or facts established by the evidence it deems to
be reasonable and logical. . . . This does not require
that each subordinate conclusion established by or
inferred from the evidence, or even from other infer-
ences, be proved beyond a reasonable doubt . . .
because this court has held that a [trier’s] factual infer-
ences that support a guilty verdict need only be reason-
able.’’ (Internal quotation marks omitted.) State v.
Jordan, 314 Conn. 89, 106–107, 101 A.3d 179 (2014).
The defendant’s sufficiency of the evidence claim is
premised on whether the jury believed the complainant.
‘‘We also are mindful that [q]uestions of whether to
believe or to disbelieve a competent witness are beyond
our review. As a reviewing court, we may not retry the
case or pass on the credibility of witnesses. . . . Our
review of factual determinations is limited to whether
those findings are clearly erroneous. . . . We must
defer to the [finder] of fact’s assessment of the credibil-
ity of the witnesses that is made on the basis of its
firsthand observation of their conduct, demeanor and
attitude.’’ (Internal quotation marks omitted.) State v.
James E., 154 Conn. App. 795, 802, A.3d (2015).
After weighing the credibility of the witnesses, it was
within the sole province of the jury to make a determina-
tion on the witness’ credibility in order to find against
the defendant. On the basis of the foregoing, we con-
clude that there was sufficient evidence for the jury
to have reached its verdict. Therefore, the defendant’s
insufficiency of the evidence claim fails.
II
Second, the defendant claims that he was denied his
right to a fair trial as a result of prosecutorial impropri-
ety that occurred during rebuttal argument. Specifically,
the defendant argues that the prosecutor’s comments,
regarding the defendant’s failure to testify, constituted
prosecutorial impropriety and denied him a fair trial.
We agree.
The defendant challenges a string of comments made
by the prosecutor during rebuttal argument.4 In these
remarks, the prosecutor commented on the defendant’s
failure to testify twice when she stated:
‘‘[The Prosecutor]: . . . This is the other thing.
Counsel did not present his client to testify. That’s
their right guaranteed by the constitution if any of us
were accused. But there is evidence as to things that
he said. His sworn statement. Also, testimony by a cou-
ple of police officers as to what he said to them, and
that’s before you. . . .
‘‘You’ve got to look at the credibility of the defendant
as well. I mean, he didn’t testify. Again, that’s his right,
but there are some statements that are contained in the
evidence. One is which that I’ve just referred to was
his sworn statement as well as some statements by
the police that he made the night he was arrested.’’
(Emphasis added.)
The defendant claims on appeal that the comments
made by the prosecutor during rebuttal argument were
improper and deprived him of his constitutional right
to due process. We agree with the defendant and focus
our analysis on the prosecutor’s comments that refer-
enced the defendant’s failure to testify.
We begin with our standard of review. ‘‘[I]n analyzing
claims of prosecutorial [impropriety], we engage in a
two step analytical process. The two steps are separate
and distinct: (1) whether [impropriety] occurred in the
first instance; and (2) whether that [impropriety]
deprived a defendant of his due process right to a fair
trial.’’ (Internal quotation marks omitted.) State v. War-
holic, 278 Conn. 354, 361, 897 A.2d 569 (2006).
‘‘[Our Supreme Court has] previously acknowledged
that prosecutorial [impropriety] can occur in the course
of closing argument. . . . Such argument may be, in
light of all of the facts and circumstances, so egregious
that no curative instruction could reasonably be
expected to remove [its] prejudicial impact.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Mills, 57 Conn. App. 202, 205, 748 A.2d 318, cert. denied,
253 Conn. 914, 915, 754 A.2d 163 (2000). When reviewing
whether prosecutorial impropriety occurred ‘‘during
closing argument, we ask whether the prosecutor’s con-
duct so infected the trial with unfairness as to make the
resulting conviction a denial of due process.’’ (Internal
quotation marks omitted.) Id.A
In the first step of our analysis, we must determine
whether an impropriety occurred. ‘‘The ultimate test of
whether a prosecution argument indirectly and imper-
missibly comments on the defendant’s failure to testify
is whether, because of its language and context, the
jury would naturally and necessarily interpret it as com-
ment on the defendant’s failure to testify.’’ (Internal
quotation marks omitted.) State v. Downing, 68 Conn.
App. 388, 398, 791 A.2d 649, cert. denied, 260 Conn. 920,
797 A.2d 518 (2002).
‘‘It is well settled that comment by the prosecuting
attorney . . . on the defendant’s failure to testify is
prohibited by the fifth amendment to the United States
constitution. Griffin v. California, 380 U.S. 609, 615,
85 S. Ct. 1229, 14 L. Ed. 2d 106, reh. denied, 381 U.S.
957, 85 S. Ct. 1797, 14 L. Ed. 2d 730 (1965). . . . Our
legislature has given statutory recognition to this right
by virtue of its enactment of . . . [General Statutes]
§ 54-84. In determining whether a prosecutor’s com-
ments have encroached upon a defendant’s right to
remain silent, we ask: Was the language used manifestly
intended to be, or was it of such character that the jury
would naturally and necessarily take it to be a comment
on the failure of the accused to testify? . . . Further,
in applying this test, we must look to the context in
which the statement was made in order to determine
the manifest intention which prompted it and its natural
and necessary impact upon the jury. . . . Finally, [w]e
also recognize that the limits of legitimate argument
and fair comment cannot be determined precisely by
rule and line, and something must be allowed for the
zeal of counsel in the heat of argument.’’ (Internal quota-
tion marks omitted.) State v. Parrott, 262 Conn. 276,
292–93, 811 A.2d 705 (2003).
In the present case, the prosecutor’s comments dis-
cussing the defendant’s failure to testify were a clear
violation of § 54-84.5 The statute is unambiguous that
a prosecuting official under any circumstance ‘‘shall
not’’ comment upon the defendant’s refusal to testify.
General Statutes § 54-84. Here, when the prosecutor
stated, ‘‘[y]ou’ve got to look at the credibility of the
defendant as well. I mean, he didn’t testify,’’ she spoke
about the defendant’s failure to testify while simultane-
ously attacking his credibility because he chose not to
testify. This court has stated that ‘‘[a]n indirect remark
by the prosecuting attorney which draws the jury’s
attention to the fact that the accused failed to testify
may also violate the accused’s right.’’ (Internal quota-
tion marks omitted.) State v. Colon, 70 Conn. App. 707,
712–13, 799 A.2d 317, cert. denied, 261 Conn. 933, 806
A.2d 1067 (2002). Although previously in her rebuttal
argument, the prosecutor acknowledged the defen-
dant’s constitutional right not to testify by stating,
‘‘[c]ounsel did not present his client to testify. That’s
their right guaranteed by the constitution if any of us
were accused,’’ in the context of the entire trial, the
prosecutor’s comments violated the defendant’s due
process rights. These comments were made by the pros-
ecutor during rebuttal argument, specifically in relation
to the defendant’s credibility and his failure to testify.
Accordingly, we conclude that the commentary regard-
ing the defendant’s failure to testify was of such charac-
ter that the jury would naturally and necessarily take
it to be a comment on the failure of the accused to
testify and, therefore, such commentary ‘‘improperly
and impliedly encouraged the jury to infer the defen-
dant’s guilt.’’ State v. Angel T., 292 Conn. 262, 286, 973
A.2d 1207 (2009).
B
In step two of our analysis, we must determine
whether the prosecutor’s improper statements deprived
the defendant of his due process right to a fair trial.
This analysis requires the court to examine the factors
set forth in State v. Williams, 204 Conn. 523, 540, 529
A.2d 653 (1987), to determine whether the prosecutor’s
conduct rose to a level that makes the resulting convic-
tion a denial of due process. The Williams factors
include ‘‘the extent to which the [impropriety] was
invited by defense conduct or argument . . . the sever-
ity of the [impropriety] . . . the frequency of the
[impropriety] . . . the centrality of the [impropriety]
to the critical issues in the case . . . the strength of
the curative measures adopted . . . and the strength
of the state’s case.’’ (Internal quotation marks omitted.)
State v. Mills, supra, 57 Conn. App. 205–206.
We start by examining the three Williams factors
most pertinent to our analysis: the severity of the impro-
prieties, the centrality of the improprieties to the critical
issues of the case, and the strength of the state’s case.
We begin our analysis with the severity of the impro-
prieties.
In the present case, the prosecutor’s impropriety was
severe because the prosecutor commented on the
defendant’s failure to testify and instructed the jury to
look at the credibility of the defendant because of his
choice not to testify. In doing so, the prosecutor directly
infringed upon the defendant’s fifth amendment right
not to testify. The prosecutor mentioned the defen-
dant’s failure to testify not once, but twice, during rebut-
tal argument. Our Supreme Court has stated that
prosecutors may not express their opinions, even in an
indirect manner, regarding the credibility of witnesses.
See State v. Williams, supra, 204 Conn. 541. Further,
our Supreme Court has stated that ‘‘[a]n indirect com-
ment in argument to the court on a point of law is less
serious than a comment in jury summation that asks
the jury to infer that the defendant’s silence is evidence
of guilt.’’ (Internal quotation marks omitted.) State v.
Parrott, supra, 262 Conn. 293. In this case, the prosecu-
tor specifically asked the jury to look at the credibility
of the defendant because he did not testify. ‘‘Such
expressions of personal opinion are a form of unsworn
and unchecked testimony. . . . Furthermore, it is not
the state’s attorney’s right or duty to stigmatize a defen-
dant.’’ (Citation omitted; internal quotation marks omit-
ted.) State v. Mills, supra, 57 Conn. App. 207.
A prosecutor, by virtue of her position with the state,
can wield great influence over a jury through expres-
sions of her opinion. ‘‘These expressions of opinion are
particularly difficult for the jury to ignore because of
the special position held by the prosecutor. . . . The
jury is aware that [she] has prepared and presented the
case and consequently, may have access to matters
not in evidence . . . which the jury may infer to have
precipitated the personal opinions.’’ (Citations omitted;
internal quotation marks omitted.) Id., 208. In the pre-
sent case, because of the prosecutor’s position as a
public official, the fact that she infringed upon the
defendant’s fifth amendment right, and the fact that the
statements were made during the prosecutor’s rebuttal
argument, we conclude that such comments were not
only improper, but rose to the level of a severe impro-
priety.
Next, we look to the centrality of the improprieties
to the critical issues of the case and the strength of the
state’s case. In State v. Ceballos, 266 Conn. 364, 415–17,
832 A.2d 14 (2003), our Supreme Court, in reversing a
judgment of conviction after finding that the prosecu-
tor’s improprieties deprived the defendant of a fair trial,
discussed these two factors together, and we find it
appropriate to do so here. The critical issue in this case
was credibility, whether the jury was to believe the
defendant or the complainant. ‘‘Our law is well settled
that it is a jury’s duty to determine the credibility of
witnesses and to do so by observing firsthand their
conduct, demeanor and attitude.’’ State v. Johnson, 288
Conn. 236, 265, 951 A.2d 1257 (2008). The prosecutor’s
second mention of the defendant’s not having testified,
‘‘[y]ou’ve got to look at the credibility of the defendant
as well. I mean, he didn’t testify,’’ links the issue of the
credibility of the defendant directly to the fact that he
did not testify. By commenting on the defendant’s fail-
ure to testify during rebuttal argument, the prosecutor
implied to the jury that it should glean a negative infer-
ence from this fact. Specifically, the implication was
that the jury should infer that the defendant, by not
testifying, therefore was not credible and therefore
was guilty.
The prosecutor’s improper comments during rebuttal
argument were made in conjunction with the fact that
the state did not have a strong case. In Ceballos, our
Supreme Court stated: ‘‘[A] child sexual abuse case
lacking conclusive physical evidence, when the prose-
cution’s case rests on the credibility of the [complain-
ant] . . . is not particularly strong . . . .’’ (Internal
quotation marks omitted.) State v. Ceballos, supra, 266
Conn. 416. Similarly, the improprieties in this case were
directly connected to the critical issue of the credibility
of the defendant. Our Supreme Court further stated:
‘‘In our view, without independent physical evidence
to prove that the defendant had sexually assaulted [the
complainant], or even that [the complainant] had been
sexually assaulted at all, the significance of the [prose-
cutor’s] improper conduct increases considerably.’’
(Internal quotation marks omitted.) Id., 416–17. This
case is factually similar to Ceballos; there was no physi-
cal evidence of the alleged abuse, the testimony was
conflicting as to the complainant’s credibility, and there
was only one witness, the complainant, and the com-
plainant refused to answer all of the questions put to
her.
In the present case, the strength of the state’s case
hinged upon the credibility of the complainant. This
court, in State v. Jones, 139 Conn. App. 469, 56 A.3d
724 (2012), cert. granted, 307 Conn. 957, 958, 59 A.3d
1192 (2013), analyzed the effect that the weakness of
the state’s case has on a claim of prosecutorial impropri-
ety. In Jones, ‘‘[t]he case turned entirely on the credibil-
ity of the complainant against that of the defendant.
The state did not present any conclusive physical evi-
dence or independent testimony that was not affected
by the prosecutorial improprieties. . . . Our Supreme
Court has ruled that a case turning entirely on the credi-
bility of the [complainant] is not strong.’’ (Citation omit-
ted; internal quotation marks omitted.) Id., 481.
Moreover, in State v. Angel T., supra, 292 Conn. 293,
our Supreme Court ruled that the state’s case ‘‘was not
sufficiently strong so as to not be overshadowed by the
impropriety.’’ In that case, the state’s case relied on the
testimony of a minor child, as well as the testimony of
two corroborating witnesses. Id. In this case, unlike in
Angel T., there are no corroborating witnesses, only
the testimony of the complainant, and therefore the
state’s case was not strong.
This case does not have ‘‘substantial evidence sup-
porting a conviction that is unaffected by the [violations
of State v. Singh, 259 Conn. 693, 793 A.2d 226 (2002)],
which could ameliorate their prejudice, such as a con-
fession . . . testimony of accomplices . . . testimony
of eyewitnesses other than the [complainant] . . . or
physical evidence corroborating the complainant’s tes-
timony over the defendant’s testimony . . . .’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Jones, supra, 139 Conn. App. 482. Therefore, we con-
clude that the state’s evidence, while sufficient to result
in a conviction, was not particularly strong. See also
State v. Singh, supra, 724.
The final three Williams factors, the extent to which
the impropriety was invited by defense conduct or argu-
ment, the frequency of the impropriety, and the strength
of the curative measures adopted, are collectively given
less weight in this case, given the facts. See State v.
Jones, supra, 139 Conn. App. 482. ‘‘Although the
strength of the state’s case, the centrality of the impro-
prieties and the severity of the improprieties propels
our analysis, we give due consideration to the other
Williams factors.’’ Id., 482 n.14.6 The frequency of the
impropriety and whether or not a curative measure was
adopted will be discussed in turn.
The prosecutor’s impropriety was limited to rebuttal
argument. While looking only at the prosecutor’s com-
ments regarding the defendant’s failure to testify, the
improper comments occurred twice during the state’s
rebuttal argument. Such comments were not pervasive
throughout the entire trial, but they do not need to be
in order to violate the defendant’s due process right. See
State v. Ceballos, supra, 266 Conn. 376. (‘‘[m]oreover,
prosecutorial misconduct of constitutional proportions
may arise during the course of closing argument,
thereby implicating the fundamental fairness of the trial
itself’’ [internal quotation marks omitted]).
Finally, we look to whether a curative measure was
adopted and the strength of such curative measure.
The state emphasizes, and we acknowledge, that the
defendant did not object to the prosecutorial conduct
at trial; but this alone is not fatal to his case. See State
v. Angel T., supra, 292 Conn. 289. The state also con-
tends that any impropriety was cured by the court’s
jury instruction.7 Yet, ‘‘a general instruction does not
have the same curative effect as a charge directed at
a specific impropriety, particularly when the [impropri-
ety] has been more than an isolated occurrence.’’ State
v. Ceballos, supra, 266 Conn. 413. In this case, although
the court instructed the jury properly, it was a general
jury instruction, and was not directed at any specific
impropriety, and therefore the instruction was not cura-
tive in nature.
This case is similar to Jones. In Jones, the case fell
‘‘within a line of cases in which our Supreme Court
. . . found that prosecutorial impropriety resulted in
substantial prejudice depriving a defendant of a fair trial
and due process, even in the absence of an objection or
request for specific curative instructions from a defen-
dant. . . . [I]n each of these cases, the defendant failed
to object to or request curative instructions for Singh
violations, the state’s case was not strong and amounted
to a credibility contest between the defendant and one
or two of its witnesses, the impropriety augmented the
state’s case on a central issue of credibility rather than
a peripheral point, the impropriety was repeated on
cross-examination and in closing arguments, and the
impropriety was uninvited. . . . In cases that would
otherwise present a similar Williams analysis, our
Supreme Court has not found substantial prejudice
where one or more of these Williams factors is absent.’’
(Citations omitted.) State v. Jones, supra, 139 Conn.
App. 483–84.
The facts in Jones are similar to the facts in the
present case, leading us to conclude, as this court did
in Jones, that the defendant’s due process rights were
violated by the prosecutorial impropriety occurring dur-
ing rebuttal argument. Therefore, we conclude that as
to the final three Williams factors, the improprieties
were not invited, no curative instructions were given
because they were not requested, the court’s final jury
instruction that the jury should not draw an adverse
inference from the defendant’s failure to testify did not
cure the prosecutor’s improper comments, and the
improprieties were not pervasive, but confined to rebut-
tal argument, a time at which the defendant had no
other opportunity to refute such comments.
Taking into consideration the factors set forth in State
v. Williams, supra, 204 Conn. 540, we hold that the
prosecutorial impropriety in the present case deprived
the defendant of his due process right to a fair trial. The
prosecutorial impropriety attacked the central issue in
the case, the credibility of the defendant, when com-
menting on his failure to testify. Therefore, we cannot
say there is no reasonable likelihood that the verdict
would have been different absent the improprieties. See
State v. Jones, supra, 139 Conn. App. 485. Accordingly,
because the defendant was deprived of his constitu-
tional right to a fair trial, we reverse the judgment of
conviction and remand the case to the trial court for a
new trial.
III
Third, the defendant claims that the court improperly
determined that it should not disclose to the defendant
the complainant’s confidential records, which included
her medical, mental health, educational, and Depart-
ment of Children and Families records. Because this
issue is likely to arise on remand, we briefly discuss
it here and conclude that the court did not abuse its
discretion. In State v. Liborio A., 93 Conn. App. 279,
889 A.2d 821 (2006), this court noted: ‘‘While we are
mindful that the defendant’s task to lay a foundation
as to the likely relevance of records to which he is not
privy is not an easy one, we are also mindful of the
witness’ legitimate interest in maintaining, to the extent
possible, the privacy of her confidential records. . . .
On review, we must determine whether the trial court’s
decision constituted an abuse of discretion. . . . In
making such a determination, this court must conduct
an in camera inspection of the sealed records. . . .
‘‘The linchpin of the determination of the defendant’s
access to the records is whether they sufficiently dis-
close material especially probative of the ability to com-
prehend, know and correctly relate the truth . . . so
as to justify breach of their confidentiality . . . .
Whether and to what extent access to the records
should be granted to protect the defendant’s right of
confrontation must be determined on a case by case
basis. . . . [W]hen the trial court has reviewed the
records in camera, access to the records must be left
to the discretion of the trial court which is better able
to assess the probative value of such evidence as it
relates to the particular case before it . . . and to
weigh that value against the interest in confidentiality
of the records.’’ (Citations omitted; internal quotation
marks omitted.) Id., 289–90.
After a careful review of the records, we determine
that the information contained in the records would
not shed light on the ability of the complainant to com-
prehend, know and correctly relate the truth. We there-
fore conclude that the court did not abuse its discretion
in its determination that the complainant’s confidential
records should not be disclosed to the defendant.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
complainants of sexual abuse and the crime of risk of injury to a child, we
decline to use the defendant’s full name or to identify the complainant or
others through whom the complainant’s identity may be ascertained. See
General Statutes § 54-86e.
1
See State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479
U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).
2
Because we reverse the judgment of the court on the defendant’s claim
of prosecutorial impropriety, we do not reach claim four, as it is unlikely
to arise on retrial. Additionally, the court admitted the forensic video into
evidence under three exceptions to the hearsay rule: the tender years excep-
tion, the rule of State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert.
denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), and the medical
treatment exception. On appeal, the defendant did not challenge the admis-
sion of the forensic video pursuant to the medical treatment exception.
Therefore, we do not discuss claims five and six raised by the defendant,
which involve the admission of the forensic video. ‘‘[W]here alternative
grounds found by the reviewing court and unchallenged on appeal would
support the trial court’s judgment, independent of some challenged ground,
the challenged ground that forms the basis of the appeal is moot because
the court on appeal could grant no practical relief to the complainant.’’
(Internal quotation marks omitted.) Horenian v. Washington, 128 Conn.
App. 91, 99, 15 A.3d 1194 (2011).
3
Ron-Priola testified as to what the complainant explained to her prior
to her examination: ‘‘[The complainant stated] [t]hat [the defendant] had
touched her breasts. She pointed to her genitals, she didn’t want to say the
name . . . and her buttocks. . . . She told me that he had tried to put his
thing in her butt, and I asked her what she meant by his thing, and she was
very reluctant to say it, and I said, the penis, and she said yes, and he tried
to put it in her butt, but he couldn’t.’’
4
The defendant also claims that the prosecutor improperly discussed the
defendant’s failure to put on a defense:
‘‘[The Prosecutor]: . . . Now, one of the things that—that counsel
touched on quickly in his closing argument was about the police investiga-
tion, and it was two weeks long, this and that. I don’t know if you felt this
way or you thought this way, but when I was sitting here listening to how
John Caputo with forty years of experience in law enforcement, twenty
with state police and twenty on his own as a private investigator, not one
person came in here and said, ‘[the complainant] told me this didn’t happen.’
Not one. He didn’t come up with—I was waiting for what was going to be
said. Was there something? Was there someone that said, ‘[the complainant]
told me in secret that this didn’t happen’? No.
‘‘I went, that’s it? Two years of an investigation, and that’s it? And they
don’t have an obligation to put a case on. It’s my burden of proof. They
don’t want to put a case on, that’s fine. But when you endeavor to put one
on, and this is all the evidence you come up with, you’ve got to question
two years of looking, and that’s it?
‘‘Now, it comes down, I think, to credibility. Who do you believe? Because
there’s no physical evidence, but there is testimony from witnesses. You’re
gonna judge their credibility . . . .’’
Because we find that the other comments by the prosecutor were improper
and deprived the defendant of a fair trial, we do not address this comment.
5
General Statutes § 54-84 provides in relevant part: ‘‘(a) Any person on
trial for crime shall be a competent witness, and at his or her option may
testify or refuse to testify upon such trial. The neglect or refusal of an
accused party to testify shall not be commented upon by the court or
prosecuting official, except as provided in subsection (b) of this section.
‘‘(b) Unless the accused requests otherwise, the court shall instruct the
jury that they may draw no unfavorable inferences from the accused’s failure
to testify. In cases tried to the court, no unfavorable inferences shall be
drawn by the court from the accused’s silence.’’
6
In the present case, the defendant claims that the improprieties were
not invited. After the state’s concession at oral argument and our review
of the record, it is clear that the state did not present any arguments to
contest the defendant’s claim. We therefore agree that the improprieties
were not invited.
7
The court stated in its general instruction: ‘‘Now, the defendant has
elected not to testify in this particular case. An accused has the right and
the option to testify or not to testify at his or her own trial, and is under
no obligation to testify. He has a constitutional right that is protected by
the [United States] as well as the Connecticut constitutions not to testify,
and you may draw no unfavorable inferences from the defendant’s choice
not to testify in this particular instance.’’