State v. Fernando V. , 331 Conn. 201 ( 2019 )

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STATE v. FERNANDO V.—DISSENT
ROBINSON, C. J., with whom KAHN, J., joins, dis-
senting. I respectfully disagree with the conclusion in
part III of the majority opinion, which concludes that
the Appellate Court properly determined that the trial
court’s exclusion of testimony from P, the longtime
boyfriend of B, the victim in this case, requires reversal
of the judgment of conviction rendered against B’s step-
father, the defendant, Fernando V.1 State v. Fernando
V., 170 Conn. App. 44, 153 A.3d 701 (2016). Even if the
trial court improperly excluded P’s testimony to the
effect that B did not exhibit certain behaviors that may
or may not be indicative of trauma from sexual abuse,
I nevertheless have a fair assurance that this evidentiary
error was harmless because it did not substantially sway
the jury’s verdict. I reach this conclusion particularly
in light of circumstantial evidence corroborating B’s
allegations, the collateral nature of P’s testimony, and
the fact that other evidence—namely, the cross-exami-
nation testimony of B and her mother, G—provided
support for the defendant’s argument near-identical to
that which would have been provided by P’s testimony.
Because I would reverse the judgment of the Appellate
Court, I respectfully dissent.
I begin by noting my substantial agreement with the
factual and procedural history recited in part I of the
majority opinion. I also agree with part II of the majority
opinion, which declines to consider the state’s argu-
ments that the trial court did not abuse its discretion
when it precluded P from testifying.2 Finally, I agree
that, ‘‘[w]hen an improper evidentiary ruling is not con-
stitutional in nature, the defendant bears the burden of
demonstrating that the error was harmful. . . .
[W]hether [an improper ruling] is harmless in a particu-
lar case depends upon a number of factors, such as the
importance of the witness’ testimony in the prosecu-
tion’s case, whether the testimony was cumulative, the
presence or absence of evidence corroborating or con-
tradicting the testimony of the witness on material
points, the extent of cross-examination otherwise per-
mitted, and, of course, the overall strength of the prose-
cution’s case. . . . Most importantly, we must examine
the impact of the . . . evidence on the trier of fact and
the result of the trial. . . . [T]he proper standard for
determining whether an erroneous evidentiary ruling
is harmless should be whether the jury’s verdict was
substantially swayed by the error. . . . Accordingly, a
nonconstitutional error is harmless when an appellate
court has a fair assurance that the error did not substan-
tially affect the verdict.’’ (Internal quotation marks omit-
ted.) State v. Eleck, 314 Conn. 123, 129, 100 A.3d 817(2014); accord State v. Ritrovato, 280 Conn. 36, 56–57,
905 A.2d 1079 (2006) (discussing factors in context of
exclusion of evidence). I part company from the major-
ity with respect to its application of these well settled
principles to the record in the present case, and specifi-
cally its conclusion that the exclusion of P’s testimony
requires a new trial.3
Given the lack of physical evidence in the present
case, I acknowledge that the defendant’s theory of the
case focused on impeaching the credibility of B, a the-
ory borne out in his closing argument as he described
her testimony as ‘‘inconsistent,’’ ‘‘contradictory,’’
‘‘incomplete,’’ and ‘‘noncorroborative evidence.’’ See,
e.g., State v. Osimanti, 299 Conn. 1, 20–21, 6 A.3d 790(2010) (reviewing summations to discern significant
factual issues in case). Beginning with the importance
of P’s proposed testimony to that defense, I note that
P testified in an offer of proof that he had been in a
relationship with B ‘‘continuously’’ over the preceding
four years, with no breaks, and that he considered them
to be ‘‘boyfriend and girlfriend . . . .’’ P testified that,
over that four year period, he had not noticed ‘‘any
significant behavioral issues’’ with B, nor any ‘‘pro-
nounced eating disorders,’’ ‘‘suicidal thoughts,’’ ‘‘severe
depression,’’ ‘‘anger or outbursts or violence,’’ or ‘‘trou-
ble with her focusing on issues or tasks at hand . . . .’’4
P also did not think that B’s grades had ‘‘slipped, in any
way, in the four years [he had] known her,’’ and he had
not ‘‘noticed any type of interruption in her playing of
the flute,’’ which was her main extracurricular activity
Finally, P denied that the defendant had ever forbidden
him from ‘‘dating,’’ ‘‘talking to,’’ ‘‘seeing,’’ or ‘‘being
alone’’ with B. The defendant offered P’s testimony for
several reasons: (1) to establish whether he had seen
‘‘behavior that has been testified to [that] may or may
not be common with certain individuals’’; (2) to indicate
the nature of B’s relationship with the defendant; and
(3) to impeach the testimony of B and G.
Given these arguments, P’s proposed testimony must
be understood in the context of the earlier testimony
of the state’s expert witness, Larry M. Rosenberg, who
is the clinical director of the Child Guidance Center
of Southern Connecticut, an outpatient mental health
clinic. Rosenberg had testified about the concept of
delayed disclosure of sexual abuse. In connection with
that topic, Rosenberg also testified about behavioral
signs of the trauma resulting from sexual assault—such
as withdrawal, depression, sleep disturbances, and
declines in cognitive and educational functioning. The
defendant sought to use P’s testimony to establish that
B had not manifested those behavioral signs that Rosen-
berg had testified were consistent with the trauma of
sexual abuse.
Although P’s testimony might have been crucially
important standing alone, its relative value in this case
is significantly diminished for two reasons. First,
whether a person shows behavioral signs of having been
sexually abused is by no means definitive evidence on
that point. As Rosenberg testified during both direct and
cross-examination, some sexual assault victims might
show those trauma signs relatively soon, while other
victims might never show any of those trauma signs.
Some victims might experience no change in their abil-
ity to function in the near term, and might not manifest
those signs until many years later, if at all.
Second, and more significantly, P’s excluded testi-
mony regarding the absence of these signs was consis-
tent with that of B and G during both direct and cross-
examination. B testified initially on direct examination
that she had enrolled in college after graduating high
school, and that she had maintained a grade point aver-
age of approximately 2.9 at both schools. She also testi-
fied that she had not experienced any lengthy absences
from, or other problems at school or work because of
behavioral or psychological reasons, noting that her
only extended absence from high school was the result
of a medical problem. B testified further that she was
an active member of the college band, and that nothing
had prevented her from pursuing that activity. B also
contradicted her direct examination testimony that she
was unable to have male friends, admitting that she
had boyfriends during high school and that the defen-
dant had not forbidden her from seeing them or having
them as guests in the house.
G testified similarly, stating that there had been no
changes in B’s personality around the ages of twelve
or thirteen years old, when the abuse escalated from
improper touching to intercourse, because ‘‘she was
always a little shy.’’ Although G had testified on direct
examination that the defendant was strict with respect
to B’s grades, and preferred her to go out with female
rather than male friends, she also confirmed that B had
boyfriends during high school, and that the defendant
had not interfered with those relationships. Moreover,
while G testified that, in the year prior to the defendant’s
arrest in this case, B had acted ‘‘more withdrawn and
. . . that she would stay in her room,’’ she then testified
on cross-examination that B’s activities had not
changed, as she continued to enjoy reading and playing
the flute from middle school into college. G also testified
that B had always had a ‘‘timid’’ demeanor since coming
to the United States as a child, and that it had not
worsened during high school, although she would ‘‘stay
in her room more often, locked up.’’
The testimony of B and G provided ample support
for the defendant’s theory of the case, even without P’s
similar testimony on point. In addition to emphasizing
inconsistencies in the time, place, and nature of B’s
allegations,5 the defendant’s closing argument relied on
the testimony of B and G to argue in detail that B had
not manifested behaviors consistent with sexual abuse
trauma. For example, defense counsel described as
‘‘contradictory’’ B’s testimony on direct examination
that ‘‘she was unable to have guy friends,’’ and that the
defendant ‘‘didn’t like her talking to boys,’’ observing
that she had ‘‘admitted’’ during cross-examination that
‘‘she did have two boyfriends during high school, and
[that the defendant] never objected to her having these
boyfriends. That he never forbade her . . . from seeing
them, coming over to the house or in any way opposed
to these relationships . . . .’’ Defense counsel also
emphasized that B had not testified to any ‘‘effect on
[her] grades,’’ that she had ‘‘maintained a 2.9 through 3.0
consistently from middle school to college. She testified
that her employment was never affected. There was no
disruption in her extracurricular activities. She plays
the flute, continues to play the flute. [G] also testified
the same, that there was no changes, that [B] continued
in those activities.’’
Defense counsel argued further that there was ‘‘no
testimony by [B] that there was any behavioral changes.
There’s no testimony from [B] that she experienced any
depression. No testimony from her that she experienced
any suicidal ideations. No testimony that she experi-
enced any eating disorders. No testimony from her that
she had any violent tendencies. And more importantly,
no evidence that after the alleged arrest of [the defen-
dant], in 2011, did any of this come up. Which, as the
State’s own expert [witness] said, commonly is some-
thing that occurs. There’s no evidence of any therapy
or counseling ever received by [B].’’
Turning to G’s testimony, defense counsel argued
that it was inconsistent with that of B, positing that G
had ‘‘stated that [the defendant] did not like [B] talking
to boys, but admitted [B] had boyfriends since freshman
year in high school. And there was no evidence by [G]
that [the defendant] ever objected to [B] having those
relationships with those boys.’’ Defense counsel further
emphasized that G’s ‘‘testimony is noncorroborative of
[B’s] in that she didn’t see any behavioral issues with
[B]. Claimed [B] was always a bit timid, even since she
came to the [United States] and there was no alleged
inappropriate behavior. And that there was really no
change. Didn’t see any of [B’s] grades slip. Didn’t see [B]
stop playing the flute. And never saw any inappropriate
behavior, whatsoever, during the entire time that they
were together, between [B] and [the defendant].’’
Defense counsel then compared this testimony by B
and G to Rosenberg’s testimony: ‘‘[Rosenberg] stated
that it is more common to have some behavioral issues
in alleged victims, especially in their adolescent years,
and especially after the disclosure is made. He said it’s
common. It happens. But there’s no evidence of any
of that.’’
Similarly, defense counsel also argued that the testi-
mony of Vicki Smetak, a Norwalk Hospital pediatrician
who had examined B after her disclosure, was not cor-
roborative. The defense argued that Smetak had made
‘‘no physical findings of assault, whatsoever,’’ and had
stated ‘‘that there was no suicidal ideation or extreme
behavioral issues that she noted during the exam.’’
I disagree with the majority’s conclusion that,
because ‘‘P’s testimony was necessary for the jury to
assess B’s credibility,’’ it therefore ‘‘cannot be harmless
error to remove from the fact finder the very tools by
which to make a credibility determination . . . .’’
(Internal quotation marks omitted.) That conclusion is
belied by the record in the present case, insofar as the
jury had numerous tools by which it could assess the
credibility of B’s allegations, all of which were well
highlighted by the defendant’s closing argument. Specif-
ically, the cross-examination of B and G, along with
Smetak’s testimony, gave the defendant ample support
for his behavioral arguments, even without P’s testi-
mony. Further, the persuasive value of the behavioral
arguments is diminished by Rosenberg’s testimony that
signs of sexual abuse may or may not be present in
victims in any event, rendering P’s testimony not a sig-
nificant addition to the evidence in the defendant’s
favor.
I also disagree with the majority’s reliance on the
lack of physical evidence in the present case in support
of its conclusion that the improper exclusion of P’s
testimony was harmful because the state’s case was
not strong. I acknowledge that, ‘‘[a]lthough the absence
of conclusive physical evidence of sexual abuse does
not automatically render the state’s case weak where
the case involves a credibility contest between the vic-
tim and the defendant . . . a sexual assault case lack-
ing physical evidence is not particularly strong,
especially when the victim is a minor.’’ (Citation omit-
ted.) State v. Ritrovato, supra, 280 Conn. 57. In the
present case, however, the state’s case was significantly
strengthened by other circumstantial evidence that cor-
roborated B’s testimony—namely, that D, B’s half
brother and the son of the defendant, had seen B and the
defendant acting secretively on two separate occasions.
Specifically, D, who was fourteen years old at the time
of trial, testified that, on one occasion, he went to his
parents’ bedroom looking for the defendant, and that
no one answered when he knocked on the door. When
the door finally opened, he saw the defendant and B
together in the room, with B putting her belt back on
at that time. D also mentioned this incident in a state-
ment to the police that the trial court admitted into
evidence pursuant to Whelan.6 In that document, D
averred the following: ‘‘What I remember is that I went
to look for my dad but the room was locked. I was just
about to walk away and then I heard him call me and
I just saw my sister putting on her belt.’’ (Emphasis
added.)
D’s statement to the police also averred the following
regarding a second incident: ‘‘I was . . . looking for
my dad and my sister told me he was in the garage. I
just said ok because I already checked there. So I told
my friend to walk downstairs and I stayed upstairs and
all I saw was my dad leave my sisters room.’’ In my view,
D’s testimony and statement significantly strengthened
the state’s case, as they provided the circumstantial
smoke to the fire of B’s testimony.7 See State v. Beavers,
290 Conn. 386, 418–20, 963 A.2d 956 (2009) (improper
arson expert testimony that fire was intentionally set,
which was based on ‘‘assessment of the defendant’s
credibility,’’ was harmless because of ‘‘enormity of the
circumstantial evidence against the defendant, namely,
the evidence of his motive, his opportunity, his knowl-
edge that the fire started in the basement, his possession
of fire starting supplies on the morning of the fire, his
intent as shown through his prior bad acts, and the
uncontroverted and properly admitted expert evidence
that refuted his attempt to blame the fire on [his son’s]
smoking’’); cf. State v. William C., 267 Conn. 686, 709,
841 A.2d 1144 (2004) (noting that ‘‘distinct dearth of
evidence corroborating the testimony of the victim, and
the fact that the [excluded Department of Children and
Families] records would serve to contradict her testi-
mony, often through her own words, demonstrate that
the state’s case against the defendant was not particu-
larly strong’’).
The harmlessness of the exclusion of P’s testimony
is even more apparent when the present case is consid-
ered in juxtaposition with those cases in which the
central issue was the complainant’s credibility and this
court has found harmful evidentiary error to exist. First,
P’s proffered testimony did not pertain directly to the
veracity of the complainant or the allegations them-
selves, but only to whether B had shown certain behav-
iors that Rosenberg had testified might—or might not
be—present in a person experiencing the trauma of
having been sexually assaulted. In contrast, cases where
this court has found harmful evidentiary error involve
improper evidence that more directly bolsters or under-
cuts the veracity of the complainant’s testimony. See
State v. Favoccia, 306 Conn. 770, 807–11, 51 A.3d 1002(2012) (admission of improper expert testimony that
indirectly vouched for teenage victim’s credibility was
harmful when there was evidence that ‘‘battered [vic-
tim’s] veracity [and] would give any reasonable juror
pause,’’ including testimony by complainant’s father
‘‘that he ‘did not know whether to believe’ her allega-
tions against the defendant’’ because, as corroborated
by testimony of his long-term girlfriend, it was factually
impossible for victim’s allegations to be true); State v.
Ritrovato, supra, 280 Conn. 57–58 (improper preclusion
of defendant from questioning victim about her claim
of virginity was harmful when it pertained to her truth-
fulness and ‘‘this emotionally charged subject was men-
tioned repeatedly . . . during the state’s case-in-chief’’
and, given lack of corroborating or physical evidence,
testimony on this subject ‘‘would have cast sufficient
doubt on [victim’s] credibility to have influenced the
jury’s verdict on the sexual assault charges’’); State v.
Iban C., 275 Conn. 624, 641–45, 881 A.2d 1005 (2005)
(improper expert bolstering via diagnosis of ‘‘child sex-
ual abuse’’ was harmful as to one count of risk of injury
to child in which ‘‘state’s case rested almost entirely
on the victim’s credibility’’ with no physical or medical
evidence, but was harmless with respect to second
count of risk of injury to child, to which defendant
had confessed); State v. William C., supra, 267 Conn.
707–708 (improper exclusion of Department of Children
and Families records was harmful because ‘‘the infor-
mation contained in [those] records evince[d], if
believed by the trier of fact, a pattern of vacillations
with regard to the very allegations of abuse for which
the defendant was standing trial,’’ as well as victim’s
statements ‘‘that she would lie if she thought it neces-
sary, and statements of the victim’s physician as to the
victim’s capacity to distort reality and come to believe
her distortions’’); State v. Grenier, 257 Conn. 797, 806–
808, 778 A.2d 159 (2001) (expert testimony that improp-
erly described child victim’s accusations as ‘‘very
credible’’ was harmful in case with no physical or medi-
cal evidence, and no corroboration beyond constancy
of accusation, because it ‘‘struck at the heart of the
central—indeed, the only—issue in the case, namely,
the relative credibility of [the victim] and the defendant’’
[internal quotation marks omitted]).
Finally, I observe there was no report of jury deadlock
in this case to ‘‘indicate that the fact finder itself did
not view the state’s case against the defendant as partic-
ularly strong.’’ State v. Angel T., 292 Conn. 262, 294,
973 A.2d 1207 (2009); see also State v. Favoccia, supra,
306 Conn. 813–14 (concluding that deadlock followed
by split verdict ‘‘indicates that the case was a close one
in the eyes of the jury, making it more likely that the
improper evidence might have tipped the balance’’);
State v. Angel T., supra, 294 (‘‘[t]he jury’s deadlock in
the present case renders more troubling its split verdict,
following the Chip Smith charge, because the split ver-
dict suggests that the jury had doubts concerning the
victim’s credibility as a general matter, as it failed to
credit her testimony about the defendant’s earlier
attempts to molest her’’). Instead, the jury in the present
case returned a verdict of guilty on all counts after
deliberating for several hours. In contrast to deadlock
reports, this rapid verdict suggests that the trier of fact
did not view this case as particularly close, an assess-
ment with which I wholeheartedly agree.8
Because the exclusion of P’s testimony was, at most,
harmless error, I conclude that the Appellate Court
improperly reversed the trial court’s judgment of con-
viction. I would, therefore, reverse the judgment of the
Appellate Court and remand the case to that court with
direction to affirm.
Accordingly, I respectfully dissent.
1
Specifically, the defendant was convicted, after a jury trial, of one count
of sexual assault in the second degree in violation of General Statutes § 53a-
71 (a) (1), one count of sexual assault in the second degree in violation of
§ 53a-71 (a) (4), and two counts of risk of injury to a child in violation of
General Statutes § 53-21 (a) (2). See State v. Fernando V., 170 Conn. App.
44, 46, 153 A.3d 701 (2016).
2
The majority declines to consider the state’s sole argument in this certi-
fied appeal in support of the trial court’s evidentiary ruling, namely, that
the trial court properly excluded P’s testimony on the ground that it was
cumulative of other evidence in the record, in part based on its conclusion
that the state’s claim is an unpreserved alternative ground for affirming the
judgment of the trial court. As the state acknowledges, its arguments in
support of excluding P’s testimony have been somewhat of a moving target
throughout this case. In its brief to this court, the state argues only that P’s
testimony was cumulative of that of B and G, which is an argument that it
inaccurately contends that it raised in its Appellate Court brief as an eviden-
tiary matter. In choosing to pursue this cumulativeness argument, the state
appears to have abandoned the contentions that it made before the trial
and Appellate Courts—namely, that P’s testimony was not relevant, including
for impeachment purposes, and that P lacked the expertise necessary to
opine on whether B had shown any behavioral signs of sexual abuse trauma.
See State v. Fernando V., supra, 170 Conn. App. 62–63.
In declining to address the state’s cumulativeness argument, the majority
concludes that the state failed to preserve it before the trial court and, thus,
may not now present it as an alternative ground on which to affirm the
judgment of the trial court, insofar as whether evidence is cumulative is a
discretionary determination, stating that ‘‘[w]e cannot determine whether
the trial court abused an exercise of discretion that it neither made nor was
asked to make.’’ In declining to reach the state’s claim, the majority links
our well established cases holding that challenges to evidentiary rulings are
limited to the grounds asserted before the trial court; see, e.g., State v.
Miranda, 327 Conn. 451, 464–65, 174 A.3d 770 (2018); and that ‘‘[o]nly in
[the] most exceptional circumstances can and will this court consider a
claim, constitutional or otherwise, that has not been raised and decided in
the trial court. . . . This rule applies equally to [alternative] grounds for
affirmance.’’ (Internal quotation marks omitted.) Perez-Dickson v. Bridge-
port, 304 Conn. 483, 498–99, 43 A.2d 69 (2012).
This approach, however, appears to be in at least some tension with the
‘‘well established [proposition] that this court may rely on any grounds
supported by the record in affirming the judgment of a trial court.’’ State
v. Burney, 288 Conn. 548, 560, 954 A.2d 793 (2008). This principle has often
been applied to evidentiary errors, including cases where the alternative
ground was not first raised before the trial court. See, e.g., id., 560–61
(upholding trial court’s decision to admit testimony about victim’s demeanor
because, although it was improperly admitted as prior consistent statement,
it was properly admissible under ‘‘alternative approach’’ that it was not
hearsay); State v. Gojcaj, 151 Conn. App. 183, 199 and n.9, 92 A.3d 1056(2014) (concluding that trial court properly admitted log record into evidence
because it was not hearsay, despite fact that parties agreed it was hearsay
and issue before court was applicability of business records exception),
cert. denied, 314 Conn. 924, 100 A.3d 854 (2014). The keys here appear to
be whether there was any prejudice to the appellant, and also whether the
alternative ground ‘‘is one [on which] the trial court would have been forced
to rule in favor of the appellee.’’ (Internal quotation marks omitted.) State
v. Cameron M., 307 Conn. 504, 526–27, 55 A.3d 272 (2012) (overruled in
part on other grounds by State v. Elson, 311 Conn. 726, 748 n.14, 91 A.3d
862 [2014]), cert. denied, 569 U.S. 1005, 133 S. Ct. 2744, 186 L. Ed. 2d 194(2013); see also Vine v. Zoning Board of Appeals, 281 Conn. 553, 568–69,
916 A.2d 5 (2007).
In its brief, the state does not attempt to tackle this apparent conflict in
the case law, citing an Appellate Court decision, State v. Pierce, 67 Conn.
App. 634, 642 n.5. 789 A.2d 496, cert, denied. 260 Conn. 904, 795 A.2d 546(2002), as its most recent support for the proposition that ‘‘a reviewing court
may affirm the trial court’s judgment on a dispositive [alternative] ground
where there is support in the record.’’ In the absence of a request by the
state, I similarly decline to resolve this apparent conflict, particularly given
my conclusion with respect to harmlessness, and the fact that, as the majority
acknowledges, the state did not squarely raise its cumulativeness claim
before the Appellate Court and that, in this ‘‘certified appeal, the focus of
our review is not the actions of the trial court, but the actions of the Appellate
Court. We do not hear the appeal de novo. The only questions that we need
consider are those squarely raised by the petition for certification, and we
will ordinarily consider these issues in the form in which they have been
framed in the Appellate Court.’’ (Internal quotation marks omitted.) State
v. Saucier, 283 Conn. 207, 221, 926 A.2d 633 (2007). This means that, in the
absence of ‘‘extraordinary circumstances’’; State v. Torrence, 196 Conn. 430,
434 n.5, 493 A.2d 865 (1985); we ‘‘ordinarily do not review claims not raised’’
before the Appellate Court. State v. Nunes, 260 Conn. 649, 658, 800 A.2d
1160 (2002). Put differently, ‘‘a claim that has been abandoned during the
initial appeal to the Appellate Court cannot subsequently be resurrected by
the taking of a certified appeal to this court.’’ (Internal quotation marks
omitted.) State v. Saucier, supra, 223; see id., 222–23 (declining to consider in
certified appeal defendant’s claim that excluded statement was not hearsay
because, although he raised that argument before trial court, he ‘‘subse-
quently failed to mention that claim in his brief to the Appellate Court,
which focused solely on his argument that the statement was hearsay offered
to prove the truth of the matter asserted . . . but was admissible pursuant
to the state of mind exception’’); see also State v. Samuels, 273 Conn.
541, 555–56, 871 A.2d 1005 (2005) (declining to consider in certified appeal
alternative grounds for admission of evidence when state did not raise and
brief them before Appellate Court).
I do, however, note this conflict in the case law for future consideration
because of the prudential concerns that it continues to raise with respect
to the public’s interest in maintaining legally correct judgments and avoiding
the prospect of costly retrials, with concerns of ambuscade minimized
because we would be upholding the trial court’s judgment, rather than
upsetting it. See Perez-Dickson v. Bridgeport, supra, 304 Conn. 538–39
(Palmer, J., concurring). I suggest that these prudential concerns are particu-
larly magnified with respect to evidentiary rulings—many of which are
made quickly in the heat of trial, with minimal opportunity for research or
reflection. See id., 541–42 (‘‘I believe that the public and institutional interest
in promoting judicial economy and the finality of judgments substantially
outweighs any possible benefit that may be achieved by declining to review
an alternative ground for affirmance solely as punishment for the appellee’s
failure to have raised the claim in the trial court’’). Given my conclusion
with respect to harmlessness, however, I leave this issue to another day.
3
Beyond the factual record, I also respectfully disagree with certain legal
aspects of the majority’s harmless error analysis, which I believe improperly
conflate the distinct standards that govern admissibility and harm with
respect to whether P’s testimony was cumulative for purposes of harm. See
State v. Guilbert, 306 Conn. 218, 267 n.49, 49 A.3d 705 (2012) (contending
that concurring justice’s arguments ‘‘[confuse] the standard for harmless
error analysis with the standard for evidentiary admissibility,’’ and noting
that because ‘‘evidence can have a tendency to make a material fact more
or less probable without being such that its exclusion probably affected the
verdict, a trial court’s decision to exclude some evidence could be erroneous
yet harmless’’). For example, in concluding that the exclusion of P’s testi-
mony was harmful because it was not cumulative, the majority evokes the
relevant evidentiary standard in observing that it would have presented new
material, which in part conflicted with the testimony of G. See State v.
Parris, 219 Conn. 283, 293, 592 A.2d 943 (1991) (‘‘A trial court’s broad
discretion to exclude evidence more prejudicially cumulative than probative
certainly encompasses the power to limit the number of witnesses who may
be called for a particular purpose. . . . In excluding evidence on the ground
that it would be only cumulative, care must be taken not to exclude merely
because of an overlap with evidence previously received. To the extent that
evidence presents new matter, it is obviously not cumulative with evidence
previously received.’’ [Citation omitted; emphasis in original; internal quota-
tion marks omitted.]). I agree with the majority as an evidentiary matter,
and would view P’s proposed testimony as not cumulative for purposes of
admissibility because he was the defendant’s sole witness on this point,
and he would have testified that B did not appear to have certain specific
symptoms of trauma caused by sexual abuse that the other witnesses did
not address. The ultimate question in the present appeal, however, is whether
the improper exclusion of that otherwise admissible material substantially
affected the jury’s verdict, thus requiring a new trial as a remedy. In answer-
ing that question, I am constrained to consider the excluded evidence in
juxtaposition with the nature and quality of the evidence that already had
been admitted.
4
As the state notes, the defendant did not ask P if he had noticed whether
B had become increasingly withdrawn.
5
These arguments derived from the defendant’s cross-examination of B
about inconsistencies in her allegations and memories. Turning to the subject
of when the family moved to Norwalk and the defendant started having
sexual intercourse with B, B testified that she could not remember how old
she was when the molestation progressed from inappropriate touching to
actual intercourse, or exactly what time of year that had happened. The
defendant also established inconsistencies in B’s testimony, namely: (1) that
she had testified that the first incident of intercourse was in the home’s
bathroom, but had told the police that the first incident took place in the
defendant’s bed, and (2) that she had told the police that intercourse
occurred on a weekly basis when she had testified that it was less than
weekly.
6
In 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), this court ‘‘adopted a
hearsay exception allowing the substantive use of prior written inconsistent
statements, signed by the declarant, who has personal knowledge of the
facts stated, when the declarant testifies at trial and is subject to cross-
examination. This rule has also been codified in § 8-5 (1) of the Connecticut
Code of Evidence, which incorporates all of the developments and clarifica-
tions of the Whelan rule that have occurred since Whelan was decided. . . .
In addition to signed documents, the Whelan rule also is applicable to tape-
recorded statements that otherwise satisfy its conditions.’’ (Citation omitted;
footnote omitted; internal quotation marks omitted.) State v. Simpson, 286
Conn. 634, 641–42, 945 A.2d 449 (2008). I note that D had testified at trial
somewhat inconsistently with respect to the sequence of events and his
memory, thus supporting the admission of his statement to the police
under Whelan.
7
I disagree with the majority’s assessment of D’s testimony as not corrobo-
rative of that of B on the grounds that (1) D ‘‘did not witness any inappropriate
interactions at any time,’’ and (2) D’s ‘‘testimony was confused, contradictory
and difficult to follow.’’ With respect to the fact that D did not actually witness
the defendant molesting B, his testimony about their secretive behavior—
including the fact that she was putting her belt on after B and the defendant
had been secreted in a locked bedroom—nevertheless is circumstantial
evidence corroborative of, at the very least, inappropriate conduct. Although
the defendant posited during closing arguments that the large size of the
house and the lack of any apparent embarrassment or distress by the victim
supported an innocent explanation for what had happened, I instead suggest
that the majority’s similar attempt to rationalize an innocent explanation
for this sneaky behavior of the defendant vis-a´-vis his teenage stepdaughter
reminds me of the old West Virginia aphorism that: ‘‘You can bake your
shoes in the oven, but that won’t make them bread.’’ See also, e.g., State v.
Otto, 305 Conn. 51, 70 n.17, 43 A.3d 629 (2012) (‘‘[J]urors are not expected
to lay aside matters of common knowledge or their own observations and
experiences, but rather, to apply them to the facts as presented to arrive
at an intelligent and correct conclusion. . . . Indeed, [i]t is an abiding princi-
ple of jurisprudence that common sense does not take flight when one
enters a courtroom.’’ [Citation omitted; internal quotation marks omitted.]).
Although I acknowledge that D was required to have his memory refreshed
and that his trial testimony was sufficiently inconsistent to support admis-
sion of his statement to the police under 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); see footnote 6 of this dissenting opinion; this court nevertheless is
obligated, for purposes of appellate review, to treat this evidence as credited
by the finder of fact, which could have viewed the apparent inconsistency
as a product of his understandable difficulty in testifying at a trial wherein
his father stood charged with sexually assaulting his sister, given his good
relationship with both. Cf. State v. Senquiz, 68 Conn. App. 571, 577, 793
A.2d 1095 (‘‘[w]hile the victim may have sometimes put forth confused,
apparently forgetful, or even contradictory testimony, it was solely up to
the jury to determine the weight of each part of the victim’s testimony’’),
cert. denied, 260 Conn. 923, 797 A.2d 519 (2002).
8
Because the error in this case was one of exclusion, rather than inclusion,
I acknowledge that any error was not amenable to cure by instruction. See
State v. Favoccia, supra, 306 Conn. 815–16.