State v. Henry D. , 163 Conn. App. 265 ( 2017 )

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STATE OF CONNECTICUT v. HENRY D.*
(AC 37118)
Lavine, Keller and Pellegrino, Js.
Argued January 5—officially released May 16, 2017
(Appeal from Superior Court, judicial district of
Fairfield at Bridgeport, Kahn, J.)
Raymond L. Durelli, assigned counsel, for the appel-
lant (defendant).
Adam E. Mattei, assistant state’s attorney, with
whom, on the brief, were John C. Smriga, state’s attor-
ney, and Cornelius P. Kelly, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
LAVINE, J. The defendant, Henry D., appeals from
the judgment of conviction, rendered after a jury trial,
of one count of attempt to commit sexual assault in
the first degree in violation of General Statutes §§ 53a-
49 (a) (2) and 53a-70 (a) (2) and one count of risk of
injury to a child in violation of General Statutes § 53-
21 (a) (2). The defendant claims that (1) the trial court
abused its discretion in admitting into evidence the
victim’s recorded forensic interview as a prior consis-
tent statement, and (2) the prosecutor committed an
impropriety when he used a puzzle analogy in his rebut-
tal closing argument. We affirm the judgment of the
trial court.
The following evidence was presented at trial. The
defendant lived with the twelve-year-old victim, N.A.,
and the victim’s mother, T.M., in an apartment on the
second floor of a three story house. N.A. had an older
sister, K.D., who did not live with them, and a brother
who lived on the first floor with their grandmother. The
defendant slept on the couch while N.A. and T.M. each
had a bedroom.
Approximately one or two weeks before August 5,
2008, between 2 a.m. and 3 a.m., N.A. was playing cards
in the kitchen with the defendant. After they finished
their game, N.A. went into her bedroom to watch televi-
sion. Shortly thereafter, the defendant went into N.A.’s
bedroom and sat at the foot of the bed next to her. He
then got on top of her and kissed her lips and breasts
and rubbed his fingers between her pants and under-
wear. He grabbed her arm, took her off the bed, and
told her to bend over with her hands on the bed. He
took off her shorts and underwear and ‘‘tried to put his
penis in [her] butt.’’ After he tried to anally penetrate
N.A., he pushed her to her knees and ‘‘put [her] hand
on his penis and he tried to put his penis in [her] mouth.’’
He then grabbed her arms, put her back on the bed,
and put his penis in her vagina.
A day or two later, N.A. asked K.D. to visit her. When
K.D. arrived, N.A. told her about the defendant’s assault,
and K.D. relayed this information to T.M. As soon as
K.D. told T.M. about the assault, the defendant left the
apartment. No one called the police at that time.
John Maloney, a clinical coordinator at a therapeutic
treatment center, was the family’s therapist, and he
often counseled N.A., her siblings, and T.M. together
and individually. On September 24, 2008, N.A. told Malo-
ney that a relative had assaulted her. Maloney called
T.M. and reported the disclosure to the Department of
Children and Families. After receiving this information
from Maloney, T.M. contacted the police and took N.A.
to a gynecologist to be tested for sexually transmitted
diseases and to undergo a physical examination. On
October 7, 2008, N.A. participated in a video recorded
forensic interview (interview) with Donna Vitalauno, a
social worker. The defendant was arrested in Septem-
ber, 2012.
The defendant was charged with sexual assault in
the first degree in violation of General Statutes § 53a-
70 (a) (2) and risk of injury to a child in violation of § 53-
21 (a) (2). During the trial, the state filed an amended
information charging the defendant, in addition to the
charge of sexual assault in the first degree, with attempt
to commit sexual assault in the first degree. The court
granted the state’s request to amend the information
pursuant to State v. March, 39 Conn. App. 267, 664 A.2d
1157, cert. denied, 235 Conn. 930, 667 A.2d 801 (1995).
Over the defendant’s objection, the court admitted
into evidence as a prior consistent statement the video
of the interview for the limited purpose of assisting the
jury in evaluating N.A.’s credibility. In addition, during
his closing argument, the prosecutor explained to the
jury the concept of ‘‘beyond a reasonable doubt’’ by
using a puzzle analogy. Defense counsel objected, but
the court ruled that the prosecutor’s use of the analogy
was proper.
The jury found the defendant not guilty of sexual
assault in the first degree but guilty of attempt to com-
mit sexual assault in the first degree and risk of injury
to a child. The court sentenced the defendant to a total
effective sentence of sixteen years imprisonment fol-
lowed by twenty years of special parole. This appeal
followed. Additional facts will be set forth as necessary.
I
The defendant first claims that the court abused its
discretion when it admitted the interview into evidence
as a prior consistent statement. We disagree.
The following additional facts are relevant to this
claim. On direct examination, N.A. testified that the
defendant ‘‘tried to put his penis in [her] butt.’’ She
testified that she was wearing a black tank top the night
of the assault. She also testified that before the assault,
the defendant asked her if she was a virgin, and she
replied yes. She testified that she did not remember
exactly which day of the week the assault happened,
but she did remember that it happened on a weekend
and that she told K.D. about the assault one or two
days after it had happened. She said that on the day
that she spoke with K.D., N.A. did not tell T.M. about
the assault, but K.D. told T.M. on the same day. N.A.
identified a DVD as the video of the interview, but the
state did not introduce the video or the transcript of the
interview into evidence during its direct examination of
N.A.
The defendant’s cross-examination of N.A. began
with a series of questions relating to discussions she
had with T.M. and the prosecutor. Specifically, defense
counsel asked N.A. whether she had spoken with them
prior to trial about her testimony or about the case. He
elicited testimony that N.A. spoke with T.M. and the
prosecutor a few days before the trial started, even
though she denied discussing her testimony.1 Over the
course of two days, using the transcript of the interview,
the defendant sought to impeach N.A.’s credibility by
highlighting apparent inconsistencies between her trial
testimony and the statements she had made to Vitalauno
during the interview. The defendant attempted to show
that the following statements were inconsistent: on
which day the assault occurred, what she was wearing
the night of the assault, whether she told the defendant
that she was a virgin, whether the defendant performed
anal intercourse, the number of times the defendant
performed anal intercourse, whether she told K.D.’s
boyfriend about the assault, and whether she told T.M.
about the assault on the same day she told K.D. about it.
At the end of the defendant’s cross-examination of
N.A., outside the presence of the jury, the state
requested that the court admit the video of the interview
into evidence as a prior consistent statement. It argued
that the interview was admissible because the defen-
dant’s questions suggested to the jury that N.A.’s testi-
mony was influenced by the prosecutor and T.M. It
also argued that because the defendant questioned N.A.
about apparent inconsistencies between her trial testi-
mony and statements she made during the interview,
the entire interview was admissible in order to assist
the jury in assessing whether her statements were
inconsistent. The defendant argued that the interview
was hearsay and did not qualify as a prior consistent
statement because the defendant attempted to impeach
N.A. only on the portions of the interview that were
actually inconsistent with her trial testimony. He argued
that the state was trying to put the interview in evidence
to bolster N.A.’s testimony. The court stated that it
would rule on the state’s request after it had reviewed
the transcript and the video of N.A.’s interview.
After a recess, the court ruled that the interview was
hearsay, but it was, nevertheless, admissible because it
was being admitted solely ‘‘to assist the jury in allowing
them to evaluate [N.A.’s] testimony . . . in court and
her credibility.’’ It reasoned that the defendant’s cross-
examination of N.A. left ‘‘the jury with the impression
that she had given prior inconsistent statements’’ about,
inter alia, ‘‘what she told the interviewer in terms of
who told her mother, what she told her mother, who
told her sister’s boyfriend, the clothing she was wearing
and other questions challenging her credibility . . . .’’
The court noted that it was particularly concerned that
the defendant’s cross-examination left the jury with the
impression ‘‘that during [the] interview she claimed that
the defendant engaged in anal intercourse with her on
more than one occasion during this incident and that
is wrong.’’ (Emphasis added.) In addition, the court
stated that the defendant challenged N.A.’s credibility
when he ‘‘tried to raise the notion that she met with
[the prosecutor] several times, that she met with him
with her mother present and that somehow perhaps
her story ha[d] changed or been coached.’’
Before the video was played for the jury, the court
instructed the jury that the interview was not being
admitted to prove the truth of the matter asserted but
that it was only ‘‘being admitted to allow [the jury] to
evaluate her testimony . . . in court and whether it
was consistent or inconsistent with what she said pre-
viously during that interview.’’2 During the interview,
N.A. said that ‘‘[h]e stuck his thing in [her butt]’’ when
asked what the defendant did to her body. Later in the
interview, she indicated again that the defendant anally
penetrated her by pointing to an anatomical picture
provided by Vitalauno. She told Vitalauno that she was
wearing a red and white shirt the night of the assault
and that when the defendant took her clothes off, she
told him to stop. When asked when she was assaulted,
N.A. stated that she thought that ‘‘it was [a] Saturday’’
because she ‘‘looked at the calendar.’’ She also stated
that she told both T.M. and K.D.’s boyfriend about
the assault.3
On appeal, the defendant argues that the court abused
its discretion in admitting the video of the interview
into evidence because the interview did not qualify as
a prior consistent statement, in that ‘‘N.A.’s remarks
during the forensic interview [were] inconsistent with
her impeached trial testimony and do nothing to rehabil-
itate her credibility.’’ To the extent that the statements
were consistent, he argues that the video was not admis-
sible because N.A.’s responses to the defendant’s line
of questioning about her meetings with the prosecutor
‘‘clearly demonstrate [that] N.A. was not coached or
subjected to undue influence.’’4 He also argues that the
portions of the interview that were consistent with
N.A.’s trial testimony should not have been admitted
because he did not attempt to impeach her on those
statements and, thus, admitting the entire interview into
evidence only served to bolster N.A.’s credibility. The
state argues that the interview was a prior consistent
statement because the statements N.A. made during the
interview and her trial testimony were ‘‘substantially
similar’’ and that any ambiguities are a factual determi-
nation for the jury to resolve. It further argues that the
interview tended to refute the defendant’s suggestion
that N.A. was coached by the prosecutor or T.M. Finally,
the state contends that the entire interview was prop-
erly admitted because ‘‘without [N.A.’s] statements in
context, the jury would have been left with a distorted
view of reality, and the mistaken impression’’ that she
gave inconsistent statements. We agree with the state.
‘‘[T]he trial court has broad discretion in ruling on
the admissibility . . . of evidence. . . . The trial
court’s ruling on evidentiary matters will be overturned
only upon a showing of a clear abuse of the court’s
discretion. . . . We will make every reasonable pre-
sumption in favor of upholding the trial court’s ruling,
and only upset it for a manifest abuse of discretion.
. . . Moreover, evidentiary rulings will be overturned
on appeal only where there was an abuse of discretion
and a showing by the defendant of substantial prejudice
or injustice. . . . This deferential standard is applica-
ble to evidentiary questions involving hearsay, generally
. . . and to questions relating to prior consistent state-
ments, specifically.’’ (Internal quotation marks omit-
ted.) State v. Efrain M., 95 Conn. App. 590, 596–97, 899
A.2d 50, cert. denied, 279 Conn. 909, 902 A.2d 1069(2006).
As a threshold matter, we disagree that the interview
should not have been admitted because the statements
N.A. made during the interview that the defendant used
to impeach her testimony did not qualify as prior consis-
tent statements. Many of the defendant’s claimed incon-
sistencies between N.A.’s trial testimony and the
statements she made during the interview were either
substantially consistent with one another or susceptible
to more than one interpretation. The fact that certain
statements made during the interview were inconsistent
with her trial testimony does not render the entire inter-
view inadmissible as a prior consistent statement. See
State v. Velez, 17 Conn. App. 186, 189, 551 A.2d 421(1988) (‘‘neither the Supreme Court nor this court has
required as a condition of its admissibility that there
be no inconsistencies between the victim’s testimony
and that of the constancy of accusation witness[es]’’
[emphasis added]), cert. denied, 210 Conn. 810, 556 A.2d
610, cert. denied, 491 U.S. 906, 109 S. Ct. 3190, 105 L.Ed.
2d 698 (1989); see also State v. Carolina, 143 Conn.
App. 438, 450, 69 A.3d 341 (prior consistent statement
when victim’s testimony was ‘‘substantially . . . con-
sistent’’ with statements made during interview), cert.
denied, 310 Conn. 904, 75 A.3d 31 (2013). Thus, the
interview qualified as a prior consistent statement.
‘‘Although the general rule is that prior consistent
statements of a witness are inadmissible, we have rec-
ognized exceptions in certain circumstances.’’ State v.
Lewis, 67 Conn. App. 643, 651, 789 A.2d 519, cert.
denied, 261 Conn. 938, 808 A.2d 1133 (2002). ‘‘Section
6-11 (b) of the Connecticut Code of Evidence sets forth
three limited situations in which the prior consistent
statement of a witness is admissible: If the credibility
of a witness is impeached by (1) a prior inconsistent
statement of the witness, (2) a suggestion of bias, inter-
est or improper motive that was not present at the time
the witness made the prior consistent statement, or
(3) a suggestion of recent contrivance . . . .’’ (Internal
quotation marks omitted.) Daley v. McClintock, 267
Conn. 399, 403–404, 838 A.2d 972 (2004). Our appellate
courts have held that a suggestion that a witness’ testi-
mony was unduly influenced or coached by outside
influences is grounds to allow a prior consistent state-
ment into evidence. See id., 412 (witness’ deposition
testimony admissible to rebut plaintiff’s suggestion that
witness contrived testimony after talking with defen-
dant’s attorney prior to testifying); State v. Vines, 71
Conn. App. 359, 371, 801 A.2d 918 (prior consistent
statement admissible because evidence supported con-
clusion that witness subjected to undue influences on
several occasions before testifying, including threats
and offers of money), cert. denied, 261 Conn. 939, 808
A.2d 1134 (2002); State v. Harris, 48 Conn. App. 717,
731, 711 A.2d 769 (detective’s testimony admissible to
refute suggestion that victim’s testimony was influ-
enced by conversations with police officers or social
workers), cert. denied, 245 Conn. 922, 717 A.2d 238(1998).
The court admitted the interview because the defen-
dant attempted to impeach N.A. with apparent inconsis-
tent statements and he attempted to show that N.A.’s
testimony had ‘‘changed or been coached’’ by the prose-
cutor and T.M. We conclude that the court did not abuse
its discretion in admitting the interview into evidence
because the defendant attempted to impeach N.A. with
the suggestion that N.A.’s testimony was the product
of undue influence.5
‘‘A claim of undue influence will involve a situation
in which the statement’s opponent offers evidence that,
prior to trial, the witness’ testimony may have been
affected by other persons.’’ State v. Vines, supra, 71
Conn. App. 369 n.6. ‘‘When a party is attempting to use
a prior consistent statement to counter a claim of undue
influence, the analysis is similar to that for cases involv-
ing a witness with a motive, bias or interest in the case.’’
Id., 370. ‘‘[T]he only relevant inquiry is whether the jury
reasonably may have been left with the impression that
[the witness’] testimony was a recent fabrication. . . .
[I]t is not necessary that the impeachment be explicit,
i.e., that an actual allegation of recent fabrication be
made, but only that a jury be able to reasonably infer
that such is occurring. . . . [W]hen a trial court reason-
ably can conclude that there was sufficient evidence
to permit a jury to draw an inference of recent fabrica-
tion, it may admit a prior consistent statement for reha-
bilitative purposes.’’ (Internal quotation marks
omitted.) State v. Rose, 132 Conn. App. 563, 570–71, 33
A.3d 765 (2011), cert. denied, 303 Conn. 934, 36 A.3d
692 (2012).
In the present case, the court did not abuse its discre-
tion in admitting the interview on the ground that the
jury may have been left with the impression that the
prosecutor or T.M. coached or influenced N.A.’s testi-
mony. On multiple occasions, the defendant specifically
questioned N.A. about whether she had ever discussed
her testimony with T.M. He asked her whether she had
spoken with the prosecutor about why she was going
to court and whether they had talked about the case.
He elicited testimony that she observed T.M. and the
prosecutor speaking in the prosecutor’s office prior to
trial. He also elicited testimony that N.A. spoke with
the prosecutor and T.M. shortly before she testified.
It is not determinative that N.A. denied speaking with
the prosecutor and T.M. about her testimony. For the
video to be admitted, it was only necessary that the
defendant left the jury with the impression that N.A.’s
testimony was unduly influenced or coached by the
prosecutor or T.M. We conclude that the defendant’s
cross-examination could have left the jury with this
impression. See State v. Hines, 243 Conn 796, 806, 709
A.2d 522 (1998) (prior consistent statement admissible
because defendant’s cross-examination of witness
directed specifically at proving witness lied).
Finally, we disagree with the defendant’s argument
that N.A.’s statements that were consistent with N.A.’s
trial testimony should have been excluded because he
had not sought to impeach her with those statements.
‘‘When a party has impeached a witness with portions
of a statement that are inconsistent with his or her trial
testimony, the trial court may, in its sound discretion,
admit the entire statement for rehabilitative purposes,
in order to place the allegedly inconsistent statement
into context and to prevent the jury from being mis-
led.’’ (Emphasis added.) State v. Hines, supra, 243 Conn.
807–808; see also State v. Efrain M., supra, 95 Conn.
App. 599-600; but see State v. Moody, 77 Conn. App.
197, 207–208, 822 A.2d 990, cert. denied, 264 Conn. 918,
827 A.2d 707, cert. denied, 540 U.S. 1058, 124 S. Ct. 831,
157 L.Ed. 2d 714 (2003). In the present case, while the
defendant did not offer the transcript into evidence, he
relied on portions of it when he sought to impeach N.A.’s
testimony. In essence, the defendant, after strategically
emphasizing only certain portions of N.A.’s interview
on cross-examination, wants to preclude the state from
putting those alleged inconsistencies into context. See
State v. Apostle, 8 Conn. App. 216, 245, 512 A.2d 947(1986), superseded by statute on other grounds as
stated in State v. Kulmac, 230 Conn. 43, 58 n.12, 644
A.2d 887 (1994). The court did not abuse its discretion
in admitting the entire interview in order to put N.A.’s
apparent inconsistent statements into context and to
avoid misleading the jury.
We conclude, therefore, that the video of the inter-
view was properly admitted into evidence for the lim-
ited purpose of assisting the jury in assessing N.A.’s
credibility.
II
The defendant’s second claim is that the prosecutor
engaged in an act of prosecutorial impropriety during
his rebuttal closing argument. We disagree.
The following additional facts are relevant to this
claim. During his rebuttal argument, the prosecutor
made the following statements: ‘‘And as I eluded to
earlier, listen to the court’s instruction . . . that we
. . . don’t have to prove [the state’s burden] beyond
all . . . to a mathematical certainty or remove every
single doubt from your mind. . . . And as I stated
before and I can’t state it enough, we have to prove
the elements beyond a reasonable doubt and [defense
counsel] threw a lot of things on this table right here,
a lot of facts out here, some favorable for the state,
some favorable for the defense. Almost like a jigsaw
puzzle putting it together. You bring this piece over
here, you bring this piece over here, bring this piece
over here and you don’t need every single piece to put
that jigsaw puzzle together. For argument sake, if it
was a jigsaw puzzle of an elephant, if it came in and
you had a piece of the trunk and you had a piece of
the grey body, the . . . leg as well and there’s still six
or seven empty pieces over here, you don’t need the
whole puzzle to determine hey, that’s a puzzle and the
picture . . . in the puzzle is an elephant. Again, that’s
in keeping with the burden that the state has.’’ (Empha-
sis added.) After closing arguments, outside the pres-
ence of the jury, the defendant argued that the use of
the jigsaw puzzle analogy was improper, but the court
disagreed and did not give a curative instruction.
On appeal, the defendant argues that the prosecutor
committed an impropriety when he used the puzzle
analogy in explaining the concept of ‘‘beyond a reason-
able doubt.’’ He argues that the analogy ‘‘diluted the
state’s burden of proof, creating a significant risk that
the jury would convict the defendant on a standard less
than reasonable doubt.’’ He contends that the prosecu-
tor’s language of ‘‘ ‘six or seven empty pieces’ suggested
some level of mathematical certainty was required to
convict the defendant’’ and that the ‘‘average American
juror would recognize a jigsaw puzzle of an elephant
long before all of the pieces are in place.’’ He also argues
that the puzzle analogy ‘‘suggested that the jurors could
convict the defendant in the absence of evidence prov-
ing the essential elements of the crimes charged.’’ The
state replies that the prosecutor’s use of the puzzle
analogy was not improper because it was used in direct
response to defense counsel’s closing argument.6 It also
argues that the ‘‘comment did not suggest any specific
quantitative measure of reasonable doubt,’’ and that,
instead, the puzzle analogy was used to ‘‘remind the
jury that it was not required to prove something to a
mathematical certainty or beyond all doubt.’’ (Internal
quotation marks omitted.) We conclude the state’s argu-
ment is more convincing.
‘‘[I]n analyzing claims of prosecutorial [impropriety],
we engage in a two step analytical process. The two
steps are separate and distinct: (1) whether [the impro-
priety] occurred in the first instance; and (2) whether
that [impropriety] deprived a defendant of his due pro-
cess right to a fair trial. Put differently, [impropriety]
is [impropriety], regardless of its ultimate effect on the
fairness of the trial; whether that [impropriety] caused
or contributed to a due process violation is a separate
and distinct question that may only be resolved in the
context of the entire trial . . . .
‘‘As we previously have recognized, prosecutorial
[impropriety] of a constitutional magnitude can occur
in the course of closing arguments. . . . When making
closing arguments to the jury, [however] [c]ounsel must
be allowed a generous latitude in argument, as 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. . . . Thus, as the state’s advocate, a prose-
cutor may argue the state’s case forcefully, [provided
the argument is] fair and based upon the facts in evi-
dence and the reasonable inferences to be drawn there-
from. . . . Moreover, [i]t does not follow . . . that
every use of rhetorical language or device [by the prose-
cutor] is improper. . . . The occasional use of rhetori-
cal devices is simply fair argument . . . .’’ (Citation
omitted; internal quotation marks omitted.) State v.
Luster, 279 Conn. 414, 428–29, 902 A.2d 636 (2006).
‘‘It is well established that [t]he state [has] to prove
every element of the crimes charged beyond a reason-
able doubt, not every detail of the state’s theory of the
case. Although some evidence may be inconsistent with
the state’s theory of the case, the jury is not bound to
credit only that evidence to the exclusion of evidence
consistent with the state’s theory. . . .
‘‘While . . . every element [must be] proven beyond
a reasonable doubt in order to find the defendant guilty
of the charged offense, each of the basic and inferred
facts underlying those conclusions need not be proved
beyond a reasonable doubt. . . . If it is reasonable and
logical for the jury to conclude that a basic fact or an
inferred fact is true, the jury is permitted to consider
the fact proven and may consider it in combination
with other proven facts in determining whether the
cumulative effect of all the evidence proves the defen-
dant guilty of all the elements of the crime charged
beyond a reasonable doubt.’’ (Citation omitted; internal
quotation marks omitted.) State v. Gordon, 104 Conn.
App. 69, 77, 931 A.2d 939, cert. denied, 284 Conn. 937,
937 A.2d 695 (2007).
We conclude that the prosecutor’s use of the puzzle
analogy in this particular case was not improper. The
analogy did not imply that some level of mathematical
certainty was required to convict the defendant. The
prosecutor never stated that a certain number or config-
uration of pieces of the puzzle were required or that a
certain percentage of the puzzle needed to be completed
in order to find the defendant guilty. Cf. State v. Lind-
say, 180 Wn. 2d 423, 436, 326 P.3d 125 (2014) (puzzle
analogy improper because comment included refer-
ences to numbers and percentages); State v. Fuller,
169 Wn. App. 797, 827-28, 282 P.3d 126 (2012) (puzzle
analogy proper in part because prosecutor did not quan-
tify level of certainty necessary to satisfy beyond a
reasonable doubt standard); Lord v. State, 107 Nev.
28, 35, 806 P.2d 548 (1991) (puzzle analogy improper
because prosecutor suggested having ‘‘90 to 95 [per-
cent]’’ of pieces enough to convict beyond a reason-
able doubt).
On the contrary, we agree with the court that the
prosecutor was ‘‘addressing the argument that . . . the
state isn’t required to prove something to a mathemati-
cal certainty or beyond all doubt . . . .’’ (Emphasis
added.) Using the analogy, the prosecutor told the jury
that it could conclude that the puzzle was a picture of
an elephant when only a majority of the pieces were
in place. This is representative of the accurate state-
ment of law that the state was not required to prove
its case beyond all doubt. See State v. Gordon, supra,104 Conn. App. 78 (statement that prosecutor did not
have ‘‘to prove the case beyond a reasonable doubt’’
proper because prosecutor referring to accurate state-
ment of law that state does not need to prove every
fact supporting case but only responsible for proving
elements). Moreover, immediately before using the puz-
zle analogy, the prosecutor reminded the jury to remem-
ber the court’s instruction that ‘‘beyond a reasonable
doubt’’ does not mean that the state has to ‘‘prove [its
case] . . . to a mathematical certainty or remove every
single doubt from your mind.’’ He also reiterated this
point in his closing argument before his rebuttal
argument.
The prosecutor also did not attempt to dilute the
burden of proof or shift the burden of proof to the
defendant. He prefaced the puzzle analogy six times,
and once after the analogy, with a reminder to the jury
that the state bears the burden of proving each element
beyond a reasonable doubt. See State v. Gilberto L.,
292 Conn. 226, 256, 972 A.2d 205 (2009) (exclusion of
phrase ‘‘beyond a reasonable doubt’’ not improper
because prosecutor reminded jury at least six times
during closing argument that state must prove elements
of crimes beyond a reasonable doubt); State v. H.P.T.,
100 Conn. App. 183, 187–88, 917 A.2d 586 (prosecutor’s
remark did not shift burden of proof to defendant
because comment isolated, and prosecutor opined that
state bears burden of proof of beyond a reasonable
doubt), cert. denied, 282 Conn. 917, 925 A.2d 1100(2007). He also told the jury that it must listen to the
court’s instructions when it explained each of the ele-
ments and the definition of ‘‘beyond a reasonable
doubt.’’ See State v. Ciullo, 314 Conn. 28, 39, 100 A.3d
779 (2014) (comment did not shift burden of proof to
defendant in part because prosecutor told jury to listen
to judge’s instructions); State v. Fuller, supra, 169 Wn.
App. 827–28 (puzzle analogy proper in part because
prosecutor stated that it had to prove every element
beyond a reasonable doubt and referenced court’s
actual instructions).
We emphasize that each case must be examined on
a case-by-case basis, and puzzle analogies should, in
general, be used with great caution, as the risk for
impropriety is significant. We conclude, however, that
in this case, under the circumstances, resort to the
puzzle analogy was not improper.
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 abuse, we decline to use the victim’s name or to identify
members of the victim’s family through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
1
Defense counsel cross-examined N.A. as follows:
‘‘Q. And you never discussed coming to court here and testifying with
your mother . . . ?
‘‘A. Yes.
‘‘Q. Now, you’ve been to court before to speak to [the prosecutor], correct?
‘‘A. Yes.
‘‘Q. And when was that?
‘‘A. Yesterday.
‘‘Q. Any other days?
‘‘A. Every other day . . . before that. . . .
‘‘Q. Did your mom come with you?
‘‘A. No.
‘‘Q. Did you ever come to court here to talk to [the prosecutor] . . . with
your mom?
‘‘A. Once.
‘‘Q. And when was that?
‘‘A. It was last Monday.
‘‘Q. And when you spoke—did you and your mom speak at all as to on—
why you were coming down to court?
‘‘A. No . . . .
‘‘Q. You came here with your mom, a Monday, would that be one week
ago, two weeks ago?
‘‘A. A week ago.
‘‘Q. A week ago? And you didn’t talk about your testimony at all or the case?
‘‘A. No.
‘‘Q. And when you spoke to [the prosecutor], was your mom there?
‘‘A. No.
‘‘Q. Any time you spoke to [the prosecutor], did you go back and talk to
your mom about what happened?
‘‘A. No.
‘‘Q. Did you ever see [the prosecutor] [talking] to your mom?
‘‘A. Yes.
‘‘Q. And were [you] able to hear what they were saying?
‘‘A. No.’’
2
The court allowed the state to provide a copy of the transcript of the
interview to the jury so that it could read it while the video was playing,
although it did not admit the transcript into evidence.
3
The defendant acknowledged at oral argument before this court that,
apart from the statements the defendant attempted to impeach her with,
the vast majority of the interview was consistent with N.A.’s trial testimony.
4
The defendant attempts to support his argument that N.A. was not
coached by the prosecutor or T.M. by noting that at the end of the first day of
trial, after the state finished its direct examination but before the defendant
finished his cross-examination of N.A., the court ‘‘disagreed with the state’s
attorney[’s] claim that defense counsel’s questions during cross-examination
suggested that N.A.’s trial testimony was somehow affected by the conversa-
tions she had with the state’s attorney.’’ After a review of the record, we
conclude that the court did not rule on the issue at that time, but reserved
its decision until after it reviewed the video and a transcript of the interview,
and after the defendant completed his cross-examination of N.A. Thus, we
find this argument unavailing.
5
Alternatively, we conclude that the court did not abuse its discretion in
admitting the video into evidence in order to refute the notion that N.A.
had given inconsistent statements. After reviewing the transcript of the
interview and N.A.’s trial testimony, we conclude the court did not abuse
its discretion in finding that the defendant’s cross-examination left the jury
with the impression that N.A.’s interview was inconsistent with her trial
testimony. See State v. Abrahante, 56 Conn. App. 65, 72, 741 A.2d 976 (1999)
(admitting prior consistent statement to show ‘‘the [inconsistencies] in con-
text and to prevent the jury from being misled’’ [internal quotation marks
omitted]); State v. Apostle, 8 Conn. App. 216, 245, 512 A.2d 947 (1986),
superseded by statute on other grounds as stated in State v. Kulmac, 230
Conn. 43, 58 n.12, 644 A.2d 887 (1994) (allowing state to ask victim questions
pertaining to same prior statement offered by defendant).
Specifically, we agree with the court that the defendant’s line of ques-
tioning left the jury ‘‘with the impression that during this interview [N.A.]
claimed that the defendant engaged in anal intercourse with her on more
than one occasion during this incident . . . .’’ Contrary to the defendant’s
argument, our review of the record discloses that N.A. did not state in the
interview that there was more than one instance of penetration. In context,
she described only one instance of penetration, which was substantially
consistent with her trial testimony that the defendant ‘‘tried’’ to engage in
anal intercourse with her on one occasion.
6
We disagree with the state’s argument that defense counsel invited the
claimed impropriety during his closing argument. It contends that the
defense counsel told the jury to clinically evaluate the evidence when he
stated ‘‘[the prosecutor is] relying on you to evaluate what you’ve heard
here, to take it apart, put it together, take it apart, put it together.’’ (Empha-
sis added.). Thus, it argues that ‘‘the puzzle theme was not introduced by
the state, but, rather, it was first introduced by the defendant during his
closing,’’ so it was free to remind the jury that its burden was not to prove
its case to a mathematical certainty. We fail to see how defense counsel’s
closing argument invited such an argument, as the comment was not directly
referencing a puzzle analogy or the burden the state must meet to prove
its case. We conclude, nevertheless, that the state’s use of the puzzle analogy
was not improper.