State v. Paul B. ( 2014 )

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STATE OF CONNECTICUT v. PAUL B.*
(SC 19197)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Vertefeuille, Js.
Argued September 25—officially released December 23, 2014
Glenn W. Falk, assigned counsel, for the appellant
(defendant).
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, were Brian Preleski, state’s attor-
ney, and Kevin J. Murphy, former supervisory assistant
state’s attorney, for the appellee (state).
Opinion
McDONALD, J. The defendant, Paul B., was con-
victed, after a jury trial, of two counts of risk of injury
to a child in violation of General Statutes § 53-21 (a)
(2) for touching the intimate parts of two young boys
‘‘in a sexual and indecent manner . . . .’’ The defendant
appeals, upon our grant of certification, from the judg-
ment of the Appellate Court, contending that the Appel-
late Court incorrectly determined that: (1) the trial court
properly admitted out-of-court statements of one of the
victims through the testimony of a police officer to
provide context for the defendant’s admission to the
conduct underlying the charges against him; (2) the
trial court properly admitted out-of-court statements
of the victims as examples of their age inappropriate
knowledge through the testimony of the state’s expert;
and (3) the state did not engage in prosecutorial impro-
priety during closing argument by relying on this testi-
mony.1 We conclude that the defendant’s first claim was
not properly preserved and that, even assuming the
challenged statements used by the state’s expert were
improperly admitted, any impropriety was harmless.
Finally, we are not persuaded that the defendant was
deprived of a fair trial by any purported prosecutorial
impropriety. We therefore affirm the judgment of the
Appellate Court.
The record reveals the following facts that the jury
reasonably could have found. In 2005, DA and DE, half
brothers who were then respectively eight and five
years old, resided in close proximity to the defendant’s
home. The defendant met DA and DE when they were
playing with another child, SA, whom the defendant
occasionally babysat, outside of the defendant’s home.
Several weeks after the defendant met DA and DE,
he met their parents. DA and DE then began to sleep
at the defendant’s home when their parents needed a
babysitter or when other friends, including SA, were
staying overnight at the defendant’s house. Shortly
thereafter, the defendant injured his foot and was
invited by the victims’ parents to move into their home.
The defendant frequently shared a bed with DA and
DE, both when they slept at the defendant’s house and
after the defendant had moved into the victims’ home.
On occasion, the defendant wore only underwear when
the children slept with him. He also asked DA not to
wear clothes to bed and would remove DE’s clothes in
his sleep. DA and DE both occasionally felt wetness in
the bed or on themselves when they woke up. For
example, after the defendant removed DE’s clothing,
DE would wake up feeling something wet ‘‘on [his]
private.’’ Once, DE woke up and felt wetness on his
penis and saw the defendant’s face near his midsection.
The defendant also touched and rubbed both DE’s and
DA’s nipples, penises, and buttocks on multiple occa-
sions when he shared a bed with them. There also were
times when DE would feel the defendant suck on his
nipples right before he would fall asleep and he once
felt the defendant lick his neck. When the children took
showers, the defendant occasionally stayed in the bath-
room and, when they were finished in the shower, he
would dry them off with a towel and help them put on
their underwear. On at least one occasion, the defen-
dant touched DA ‘‘in a private place’’ while drying him
off. The defendant told both DA and DE that they could
not tell their parents about the defendant touching
them.
In June, 2008, DE disclosed to his grandmother that
the defendant had touched him inappropriately. After
the grandmother informed other family members about
what DE had said, the defendant was asked to leave
the victims’ home. In August, 2008, Officer Kim Parrott
of the Plymouth Police Department received a tele-
phone call reporting the alleged sexual assault. Approxi-
mately one week later, Diane Edell, a licensed clinical
social worker, conducted a forensic interview of DE, for
which Parrott was present. Shortly thereafter, Parrott
interviewed the defendant about the conduct alleged
by DE. After Parrott’s interview of the defendant, Edell
conducted a forensic interview of DA, for which Parrott
also was present.
At trial, the state called numerous witnesses to testify
regarding the aforementioned facts, including DE and
DA, who were then respectively ten and thirteen years
old. SA, who was not a victim in this case, also testified
to corroborate the victims’ testimony regarding the
assaults that were committed in the defendant’s home
and to offer propensity evidence of similar acts that
the defendant had committed on him. Parrott testified
regarding the defendant’s response after being con-
fronted with DE’s allegations. Over the defendant’s
objection, Parrott was permitted to testify as to the
specific statements of DE to which the defendant
responded. Edell offered an expert opinion regarding
the conduct of child abuse victims. Over the defendant’s
objection, Edell was permitted to testify regarding state-
ments elicited in the forensic interviews with DA and
DE that she viewed as evidencing age inappropriate
language consistent with the conduct of such victims.
The defendant testified in his own defense and main-
tained that he had no recollection of touching the vic-
tims in a sexual manner. He acknowledged, however,
drying the victims off with a towel after they would
take showers and sleeping with them in their bed.
The jury returned a verdict of guilty of two counts
of risk of injury to a child, but acquitted the defendant
of one count of sexual assault in the first degree in
violation of General Statutes § 53a-70 (a) (2). The trial
court rendered judgment in accordance with the
verdict.
The defendant appealed from the judgment of convic-
tion to the Appellate Court, challenging the admission
of the statements of the victims introduced through
Parrott and Edell as inadmissible hearsay, as well as
the prosecutor’s comments on that evidence in closing
argument. The Appellate Court rejected the defendant’s
claims and affirmed the judgment of the trial court. See
State v. Paul B., 143 Conn. App. 691, 693, 70 A.3d 1123
(2013). This certified appeal followed.
I
We begin with the defendant’s challenge to the Appel-
late Court’s conclusion that the trial court properly
admitted out-of-court statements made by DE attesting
to certain acts by the defendant through Parrott’s testi-
mony. The defendant contends that, although Parrott
properly could provide context for the defendant’s
response to Parrott when the defendant was confronted
with those allegations, it was unnecessarily prejudicial
for Parrott to testify that DE had made the inculpatory
statements in the forensic interview. We conclude that,
although the defendant objected at trial to the admis-
sion of Parrott’s testimony with regard to DE’s state-
ments, that objection was based upon a different ground
than the one raised in this certified appeal. Because
the claim before us was not properly preserved, the
defendant is not entitled to a review of the ruling on
this basis.
The record reveals the following additional facts. At
trial, the defendant objected on hearsay grounds to the
state’s questioning of Parrott regarding what Parrott
had told the defendant when she interviewed him after
DE’s forensic interview. During an offer of proof outside
the presence of the jury, Parrott testified that, during
her interview of the defendant, she ‘‘told him that DE
and DA have disclosed—that only DE was interviewed,
and it was disclosed that while [the defendant] was
living at his house, that he would sleep in the same bed
with the boys, and that he was touching their butt, their
private area, licking the private area, licking and playing
with the nipples, and DE explained peeing—that he was
peeing on them.’’ Parrott then testified that in response,
the defendant said: ‘‘[W]ell, if the boys said I did that,
then maybe I did. I just don’t remember.’’ The defendant
objected to the admission of this testimony on the
grounds that DE’s statements were hearsay and that
admitting the details of the allegations was prejudicial.
The defendant suggested that ‘‘getting out the idea that
[DA and DE] have made disclosures of a sexual nature
that included touching by [the] defendant to the chil-
dren . . . is broad enough that it still allows the jury
to make a determination of the ultimate facts, without
submitting details in for the jury . . . .’’ The court over-
ruled the hearsay objection, concluding that the refer-
ences to DE’s allegations against the defendant were
not being offered for their truth, but rather only to
provide context for the defendant’s response. The court
explained that, in order to put the defendant’s statement
in context, ‘‘[Parrott] must testify accurately as to what
specifically she asked him about.’’ The court further
concluded that allowing Parrott to testify regarding the
details of DE’s allegations was not prejudicial because
the out-of-court statements described conduct that DE
and DA had already testified to at trial. Parrott then
testified consistent with the offer of proof. The Appel-
late Court agreed with the trial court’s reasoning. State
v. Paul B., supra, 143 Conn. App. 710–11.
By contrast to his hearsay argument at trial, in his
brief to this court, the defendant argues that, in order
to give context to the defendant’s statement, ‘‘it would
have been sufficient for . . . Parrott to testify that she
asked the defendant ‘if he had ever licked [the chil-
dren’s] nipples, or touched their chests, had he ever
licked their private area, was there any rubbing on the
butt.’ . . . It was not necessary to add the prejudicial
assertions that ‘this is what DE had explained in an
interview,’ and that [Parrott] was ‘there [to speak with
the defendant] because the boys, DE and DA, had dis-
closed that—at the time of the interview—that DE had
disclosed that [the defendant] had been touching them
in their bed—DE and DA.’ ’’ In the defendant’s view,
‘‘[b]y identifying the forensic interview as the source
of the allegations, Parrott unfairly conveyed to the jury
that she . . . believed DE . . . .’’ He contends that
‘‘the needless repetition of statements from forensic
interviews, especially by police officers, unfairly bol-
sters the state’s case and unduly prejudices
defendants.’’2
It is apparent from his argument and the authority
offered in support thereof that the defendant has chal-
lenged on appeal to this court Parrott’s identification
of the forensic interview as the circumstance in which
the out-of-court statements were made and the fact that
a police officer had reported the statements being made,
rather than the substance of the out-of-court statements
themselves. It is equally apparent from the trial court’s
ruling that it reasonably understood the defendant’s
arguments as an objection to the substance of DE’s
statements, not the circumstances under which the
statements were made or the reporter of those state-
ments. Indeed, in arguing on appeal that it was improper
for Parrott to identify that DE’s statements came from
an interview, the defendant appears to be making a
belated vouching argument to bolster his claim with
regard to Edell’s testimony regarding the victims’ state-
ments. See part II of this opinion. The defendant is
conflating two distinct objections. He cites no authority
for the proposition that the hearsay objection he made
at trial to the admissibility of the details of DE’s allega-
tions encompasses an improper vouching claim regard-
ing the admissibility of Parrott’s testimony as to the
source of DE’s allegations, and our research has found
nothing in support of this point.
We note that the state has not argued that the defen-
dant failed to preserve the claim raised before this
court, but instead has defended the merits of the Appel-
late Court’s decision, which only addresses the sub-
stance of the statements at issue as nonhearsay.
Nonetheless, the preservation requirement is intended
to protect, inter alia, judicial resources. See State v.
Calabrese, 279 Conn. 393, 408 n.18, 902 A.2d 1044 (2006)
(preservation requirements ‘‘ ‘serve to alert the trial
court to potential error while there is still time for the
court to act’ ’’). We therefore will decline to address an
unpreserved evidentiary claim even in the absence of
such an objection by the opposing party. Accordingly,
we conclude that the defendant is not entitled to review
of the claim raised on appeal. See State v. Jorge P., 308
Conn. 740, 753, 66 A.3d 869 (2013) (‘‘In order to preserve
an evidentiary ruling for review, trial counsel must . . .
articulate the basis of the objection so as to apprise
the trial court of the precise nature of the objection
and its real purpose, in order to form an adequate basis
for a reviewable ruling. . . . Once counsel states the
authority and ground of [the] objection, any appeal will
be limited to the ground asserted.’’ [Internal quotation
marks omitted.]).
II
We next turn to the defendant’s claim that the Appel-
late Court improperly affirmed the trial court’s admis-
sion of the victims’ out-of-court statements through the
testimony of the state’s expert, Edell, as nonhearsay.
The defendant contends that allowing Edell to testify
as to the victims’ out-of-court statements as a basis for
her expert opinion that they had used age inappropriate
language consistent with child abuse victims consti-
tuted an impermissible backdoor to using the state-
ments for their truth.3 He further contends that it was
unnecessary for Edell to quote the victims’ out-of-court
statements in order to support her opinion and that
doing so unfairly bolstered the victims’ trial testimony
and added a significant noncumulative detail to that
testimony. The defendant claims that this error caused
harm that could not be remedied by a limiting instruc-
tion. We conclude that, even assuming arguendo that
the admission of the statements was improper, it was
not harmful because that evidence did not substantially
affect the verdict in this case.
The following additional facts are relevant to this
claim. Edell testified regarding methods of interviewing
child sexual assault victims and the dynamics of child
sexual abuse. On redirect examination, the prosecutor
asked Edell: ‘‘What were the factors that you were par-
ticularly observing in regard to DA and to DE and SA
. . . that you were looking for to try to, you know,
make sure that this was a valid disclosure?’’ Edell
responded first by discussing general factors regarding
disclosures by child victims of sexual assault, without
referencing either victim or stating that either victim
demonstrated any particular factor. Edell mentioned
that, when a child exhibits age inappropriate sexual
knowledge, it may be indicative of a valid disclosure
of sexual abuse. The prosecutor asked for an example
of age inappropriate sexual knowledge that DE or DA
displayed during Edell’s interview of them. She replied:
‘‘ ‘He put his tongue in my belly button.’ That’s not
something that eleven year old kids know about. ‘He
sucked on my nipples.’ DE talked about his licking his
penis.’’ The defendant then objected to the admission
of these statements on the basis of hearsay.
After overruling the defendant’s objection, the trial
court immediately gave a limiting instruction. In its
final jury charge, the court again instructed the jury to
consider evidence that had been admitted for a limited
purpose only for that purpose and for no other purpose,
and, at the defendant’s request, specifically noted that
the testimony that ‘‘DE reported [that] the defendant
licked his penis’’ was admitted for the limited purpose
of providing context to Edell’s testimony and was not
to be considered for its truth.
As this court has previously explained: ‘‘[T]o the
extent that we assume impropriety in the trial court’s
evidentiary [rulings], [w]hen an improper evidentiary
ruling is not constitutional in nature, the defendant
bears the burden of demonstrating that the error was
harmful. . . . [W]hether [the improper admission of a
witness’ testimony] is harm[ful] in a particular case
depends upon a number of factors, such as the impor-
tance of the witness’ testimony in the prosecution’s
case, whether the testimony was cumulative, the pres-
ence or absence of evidence corroborating or contra-
dicting the testimony of the witness on material points,
the extent of cross-examination otherwise permitted,
and, of course, the overall strength of the prosecution’s
case. . . . [T]he proper standard for determining
whether an erroneous evidentiary ruling is harm[ful]
should be whether the jury’s verdict was substantially
swayed by the error.’’ (Internal quotation marks omit-
ted.) State v. Osimanti, 299 Conn. 1, 18–19, 6 A.3d
790 (2010).
We conclude that the defendant did not prove harm
in the present case. The state presented a strong case.
Importantly, rather than unequivocally denying that he
had engaged in the conduct alleged, the defendant made
numerous inculpatory statements in his own testimony
and to others that were presented to the jury. Parrott
testified that the defendant had admitted in his inter-
view that ‘‘maybe’’ he had engaged in the conduct that
provided the basis for the crimes for which he was
convicted, but did not remember doing so. Similarly,
when the defendant was asked during his direct exami-
nation whether he had ever touched DA inappropri-
ately, he responded: ‘‘Not to my knowledge—well,
unless I was drying him off with the towel.’’ Further-
more, the defendant admitted that it was ‘‘possible’’
that, while sleeping in bed with the children, he had
rubbed DE’s buttocks for ‘‘a couple of seconds’’ and
with ‘‘[n]o particular purpose.’’ And when asked
whether he ‘‘would rub DE’s penis,’’ the defendant
responded, ‘‘I doubt that.’’ The jury reasonably would
have concluded that a person with an ordinary memory
would remember whether he had sexually touched
young children. The fact that the defendant proved to
have a good memory of many other far less consequen-
tial events during both his interview with Parrott and
his own testimony demonstrated that the defendant did
not suffer from an impairment to his memory.
Additionally, the jury heard detailed descriptions of
the defendant’s conduct from DA, DE, and SA, render-
ing Edell’s testimony regarding the victims’ statements
cumulative. For example, DE described how the defen-
dant would ‘‘suck . . . [o]n my chest’’ and that, when
he woke up at night, he felt it ‘‘right on [his] nipples.’’
DE further described how he woke up one night and
felt wetness on his penis and that, at the time, the
defendant was facing toward him, with his face near
his midsection. Although DE did not use the phrase
‘‘[he] licked my penis’’ in his testimony, the jury could
have inferred that fact from his testimony. Furthermore,
all three children testified consistently regarding the
defendant’s conduct and corroborated each other in
material respects including the location, nature, and
timing of the defendant’s touching.
Finally, the court instructed the jury immediately
after the admission of Edell’s testimony that it was not
to consider the out-of-court statements for their truth.
‘‘[A] trial court’s limiting instructions about the
restricted purpose for which the jury may consider [cer-
tain] evidence serve to minimize any prejudicial effect
that such evidence otherwise may have had . . . .’’
(Internal quotation marks omitted.) State v. Cutler, 293
Conn. 303, 314, 977 A.2d 209 (2009), overruled in part
on other grounds by State v. Elson, 311 Conn. 726, 91
A.3d 862 (2014); see also State v. Iban C., 275 Conn.
624, 643, 881 A.2d 1005 (2005) (‘‘as a general matter,
the jury is presumed to follow the court’s curative
instructions in the absence of some indication to the
contrary’’ [internal quotation marks omitted]). We also
note that ‘‘such instructions are far more effective in
mitigating the harm of potentially improper evidence
when delivered contemporaneously with the admission
of that evidence, and addressed specifically thereto.’’
State v. Favoccia, 306 Conn. 770, 816, 51 A.3d 1002
(2012). In the present case, the trial court gave a limiting
instruction immediately following the admission of the
contested statements, again during the final jury charge,
and, at the defendant’s request, specifically addressed
the comment that the defendant contends was most
prejudicial.
We are not persuaded by the defendant’s argument
that the jury’s note to the court during its deliberations,
which asked whether ‘‘licking penis’’ constitutes pene-
tration, demonstrates that the jury considered Edell’s
testimony for its truth and therefore necessarily was
harmful. Penetration was an element of the sexual
assault charge on which the jury returned a verdict of
not guilty. Moreover, State v. Miguel C., 305 Conn. 562,
579, 46 A.3d 126 (2012), on which the defendant relies,
is inapposite in that the testimony improperly admitted
in that case was the only way in which the jury learned
of an alleged confession by the defendant. This court
recognized that ‘‘confessions have a particularly pro-
found impact on the jury, so much so that we may
justifiably doubt [the jury’s] ability to put them out of
mind even if told to do so.’’ (Internal quotation marks
omitted.) Id., 581. In the present case, Edell’s testimony
was not remotely as incriminating as the alleged confes-
sion at issue in Miguel C., and it merely corroborated
the testimony that DA and DE had already provided.
We recognize that it is problematic that Edell quoted
the children’s allegations in support of her conclusion
that the children had made what the prosecutor catego-
rized as a ‘‘good disclosure.’’4 We are not convinced,
however, that her statements substantially affected the
verdict. Although the victims’ credibility was a central
issue in this case, the defendant’s admission that
‘‘maybe’’ he committed the crimes charged and the cor-
roboration by SA rendered the victims’ credibility less
central to the case. See State v. Iban C., supra, 275
Conn. 631–32, 645–46 (because ‘‘the victim’s credibility
was not nearly as central to the state’s ability to obtain
a conviction’’ where defendant confessed to acts consti-
tuting risk of injury, admission of expert testimony
vouching for complainant’s credibility was harmless).
Moreover, whether the victims used age inappropriate
language is a matter on which the jurors might have
applied their common knowledge. In light of all of these
factors, we conclude that even if we assume that Edell’s
testimony as to the challenged statements was improp-
erly admitted, the defendant has not demonstrated that
its admission was harmful.
III
Finally, we address the defendant’s claim of prosecu-
torial impropriety. The defendant contends that the
prosecutor who tried this case made improper state-
ments during his rebuttal argument by relying substan-
tively on the victims’ out-of-court statements admitted
for a limited purpose through Edell’s testimony. The
defendant argues that these improprieties deprived him
of a fair trial and that his conviction should therefore
be reversed. The state responds that the argument at
issue either responded to assertions in the defendant’s
closing argument or addressed uncontested facts in
evidence. We conclude that, even assuming arguendo
that the prosecutor’s statements in whole or in part
were improper, the defendant was not deprived of a
fair trial.5
The record reveals the following additional facts. In
his closing argument, defense counsel advanced the
theory that the allegations were a result of coaching or
misunderstanding. He argued that the victims’ grand-
mother had contaminated the victims’ disclosures by
repeatedly asking DA and DE whether the defendant
had touched them inappropriately. He contended that
any touching by the defendant was not of a sexual
nature. Defense counsel further argued that DA, DE,
and SA contradicted each other in their testimony.
In his rebuttal argument, the prosecutor made the
following remarks, the emphasized comments indicat-
ing those to which the defendant has objected on
appeal: ‘‘But my point is—you know, you might say,
Oh, [the victims’ grandmother] did the right thing as a
grandparent. You know, there was something weird
about what was going on in that house. And every once
in a while . . . would say, You know, anything going
on there? Is there—is he touching you inappropriately?
And, of course, the answer most of the time was, no.
But then there was that one point when DA—DE was
finally able to say, You know, I—something that did
happen, and here—and he—remember, she described
how he laid on the ground and he demonstrated it. This
wasn’t the words from [their grandmother] that was
being channeled somehow through this child. And when
DE . . . was interviewed by . . . Edell, again, [the
grandmother] wasn’t present there . . . [in] their inter-
view, and what was told there. And have you heard
about any major inconsistencies that were given from
that point [until] today?’’ (Emphasis added.)
Later, the prosecutor stated: ‘‘[D]o you remember
. . . Parrott, Officer . . . Parrott from the Plymouth
Police Department? And do you remember that she
went to [the defendant’s] house? And when did she go
to his house? Three days after DE had told . . . Edell
what had happened in that bedroom and in that bed.’’
(Emphasis added.) The prosecutor further argued that
DE had no reason to lie to Edell and that ‘‘there’s no
mistake’’ that what DE had disclosed to Edell was ‘‘of
a sexual nature.’’
As we have frequently stated, in analyzing a defen-
dant’s claim of prosecutorial impropriety, ‘‘we ask
whether the prosecutor’s conduct so infected the trial
with unfairness as to make the resulting conviction a
denial of due process. . . . The fairness of the trial and
not the culpability of the prosecutor is the standard
for analyzing the constitutional due process claims of
criminal defendants alleging prosecutorial [impropri-
ety].’’ (Citations omitted; internal quotation marks omit-
ted.) State v. Williams, 204 Conn. 523, 539–40, 529 A.2d
653 (1987). ‘‘[I]n conformity with courts in other juris-
dictions, [this court] has focused on several factors.
Among them are the extent to which the [impropriety]
was invited by defense conduct or argument . . . the
severity 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. . . . Regardless of whether the
defendant has objected to an . . . [impropriety], a
reviewing court must apply [these] . . . factors to the
entire trial, because there is no way to determine
whether the defendant was deprived of his right to a
fair trial unless the [impropriety] is viewed in light of
the entire trial. . . .
‘‘This does not mean, however, that the absence of
an objection at trial does not play a significant role
in the application of the [foregoing] factors. To the
contrary, the determination of whether a new trial or
proceeding is warranted depends, in part, on whether
defense counsel has made a timely objection to any
[incident] of the prosecutor’s improper [conduct]. When
defense counsel does not object, request a curative
instruction or move for a mistrial, he presumably does
not view the alleged impropriety as prejudicial enough
to jeopardize seriously the defendant’s right to a fair
trial.’’ (Citations omitted; internal quotation marks omit-
ted.) State v. Maguire, 310 Conn. 535, 560–61, 78 A.3d
828 (2013).
We conclude that none of the factors that we have
identified weighs in the defendant’s favor. Indeed, for
the reasons discussed in part II of this opinion, the
state’s case was quite strong independent of the testi-
mony by Edell of the victims’ statements from the foren-
sic interviews. Accordingly, we conclude that the
prosecutor’s few vague references to Edell’s testimony
were not so severe as to have ‘‘infected the trial with
unfairness.’’ (Internal quotation marks omitted.) State
v. Fauci, 282 Conn. 23, 50, 917 A.2d 978 (2007). There-
fore, the defendant’s claim of prosecutorial impropriety
must fail.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
* In accordance with our policy of protecting the privacy interests of the
victims 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 victims or others through
whom the victims’ identities may be ascertained. See General Statutes
§ 54-86e.
1
We have reversed the order of the first two certified issues to dispose
at the outset of the claim that we deem unpreserved. See State v. Paul B.,
310 Conn. 909, 76 A.3d 626 (2013). Although the certified issue is framed
broadly enough to encompass that claim, such broad framing does not
excuse the defendant from meeting our long-standing preservation require-
ments, which we address in part I of this opinion.
2
In his brief to the Appellate Court, the defendant intertwined his argu-
ment regarding Parrott’s references to the forensic interview with an argu-
ment that was consistent with the objection he made at trial to the admission
of the details of DE’s allegations. He argued that ‘‘[t]he state could have
achieved its purpose of putting the defendant’s answers in context without
alluding to the forensic interviews or quoting the victims directly.’’ (Empha-
sis added.) State v. Paul B., Conn. Appellate Court Records & Briefs, Febru-
ary Term, 2013, Defendant’s Brief p. 27. The Appellate Court, however, did
not address the defendant’s claim regarding Parrott’s references to the
forensic interview. See State v. Paul B., supra, 143 Conn. App. 710–15.
3
The defendant relies on concurring and dissenting opinions in Williams
v. Illinois, U.S. , 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012), for the
proposition that any time an expert conveys an out-of-court statement to
the jury as a basis for her opinion, the statement is offered for its truth and
is therefore inadmissible hearsay. In Williams, a confrontation clause case,
Justice Clarence Thomas, in his concurring opinion, and four dissenting
justices essentially adopted this view. See id., 2257 (Thomas, J., concurring);
id., 2268–69 (Kagan, J., dissenting); see also 2 K. Broun, McCormick on
Evidence (6th Ed. 2006) § 324.3, p. 419. We note that the court in Williams
was interpreting Illinois rules of evidence and the case therefore provides
little guidance for this court. Moreover, because we conclude that any
impropriety in the admission of Edell’s testimony was harmless, we need
not determine in the present case whether, as a blanket rule, an expert’s
reliance on an out-of-court statement as the basis for her opinion automati-
cally converts the statement into inadmissible hearsay. See footnote 4 of
this opinion (addressing vouching concerns raised by expert’s use of
such statements).
4
The state acknowledges that, in light of this court’s decision in State v.
Favoccia, supra, 306 Conn. 803, which was decided after the trial in this
case, this testimony was improper because it constituted indirect vouching
for the credibility of the victims. The state argues, however, that the Appellate
Court properly determined that, because the defendant did not lodge a
vouching objection at trial, such a claim is unreviewable. See State v. Paul
B., supra, 143 Conn. App. 700–701. The defendant does not raise a separate
vouching claim on appeal before this court, but we consider whether the
testimony had that effect to the extent that it is relevant to the question of
whether the admission of the statements, if improper, was harmful.
5
The state argues that the defendant’s prosecutorial impropriety claim
is not reviewable on appeal because the Appellate Court construed the
defendant’s claim as only challenging the prosecutor’s references to the out-
of-court statements admitted through Parrott’s testimony. We disagree that
the claim should not be reviewed. Our review of the record reveals that the
defendant did challenge the prosecutor’s references to both the testimony
of Parrott and Edell, but the Appellate Court limited its review to the prosecu-
tor’s references to Parrott’s testimony. State v. Paul B., supra, 143 Conn.
App. 715, 718–19. Although the defendant did not file a motion for reconsider-
ation to address the overlooked argument, he argued in his petition for
certification that the Appellate Court ‘‘misse[d] the point that the prosecutor
had no right to repeat DE’s allegations of abuse from the interview with
. . . Edell . . . .’’ (Emphasis in original.)