State v. Alex B. ( 2014 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. ALEX B.*
(AC 35752)
Lavine, Beach and Borden, Js.
Argued March 4—officially released May 27, 2014
(Appeal from Superior Court, judicial district of New
Haven, Gold, J.)
Raymond L. Durelli, assigned counsel, for the appel-
lant (defendant).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were Michael Dearington, state’s
attorney, and Stacey M. Miranda, senior assistant
state’s attorney, for the appellee (state).
Opinion
BORDEN, J. The defendant, Alex B., appeals from
the judgment of conviction rendered after a jury trial
of one count of sexual assault in the first degree in
violation of General Statutes § 53a-70 (a) (2), and one
count of risk of injury to a child in violation of General
Statutes § 53-21 (a) (2). In this appeal, the defendant
claims that: (1) his constitutional right to due process
was violated when the prosecutor improperly ques-
tioned a child forensic interviewer, which improperly
bolstered the victim’s credibility; and (2) the court
abused its discretion by admitting testimony that did
not constitute evidence of flight as a basis for a con-
sciousness of guilt instruction, which the court ulti-
mately did not deliver to the jury. We disagree with the
defendant and, accordingly, affirm the judgment of the
trial court.
Following a jury trial, the defendant was convicted
of one count of sexual assault in the first degree, and
one count of risk of injury to a child. The defendant
was sentenced to thirteen years incarceration with five
years special parole on each count, to run concurrently.
This appeal followed.
The jury reasonably could have found the following
facts. The defendant was the stepfather of the victim.
In 2008, when the victim was eleven years old, she
disclosed to her sister and mother that on approxi-
mately two or three occasions, the defendant forced
her to perform fellatio on him. The victim’s mother
informed the police of the victim’s allegations and, fol-
lowing an investigation, a warrant was issued for the
defendant’s arrest. Additional facts will be set forth
as necessary.
I
The defendant first claims that the prosecutor vio-
lated his right to due process by impermissibly using
the testimony of a forensic interviewer to bolster the
victim’s credibility. The state contends that the defen-
dant’s claim is, in essence, an unpreserved evidentiary
claim. We agree with the state.
The following additional procedural history is rele-
vant to our review of this claim. Pursuant to the victim’s
allegations, Florence Mackey, a forensic interviewer
employed by a child sexual abuse clinic, interviewed
the victim for the purpose of gathering information
about her allegations. During the state’s direct examina-
tion of Mackey, the prosecutor asked her, ‘‘once you
do a forensic interview and it has been completed, do
you make referrals from that interview, if . . . neces-
sary?’’ Mackey responded, ‘‘[i]f necessary, we make a
referral to treatment, mental health treatment . . . for
the child.’’ Toward the end of the state’s examination
of Mackey, the prosecutor engaged in the following line
‘‘[The Prosecutor]: After you did this interview with
[the victim], did you refer her anywhere?
‘‘[Mackey]: I referred her to a [certain] program . . .
for treatment, mental health treatment.
‘‘[The Prosecutor]: . . . And could you explain to
the members of the jury what [that program] is?
‘‘[Mackey]: The [program] has clinicians who are spe-
cially trained where there’s a concern or where a child’s
disclosed sexual abuse and they’re able to really take
the children rather quickly . . . and make an appoint-
ment for them. And [the clinicians] also sit on [a multi-
disciplinary team]1 . . . and it’s a . . . term of . . .
treatment for them. And, then, if they feel like, at the
end of that time, if they need to refer them on, they
will, but, it’s immediate, and . . . it really kind of dove-
tails with our service.
‘‘[The Prosecutor]: Okay. And . . . the purpose of
that is for counseling?
‘‘[Mackey]: Is . . . to help the child heal . . . and
to . . . help them move on, and . . . overcome the
trauma that they’ve experienced.’’ (Footnote added.)
The defendant did not object to the state’s line of
questioning or move to strike any of Mackey’s
responses.
The defendant now claims that the prosecutor imper-
missibly asked Mackey whether she referred the victim
anywhere pursuant to her interview, and further, that
the prosecutor impermissibly inquired as to the purpose
of the program to which Mackey referred the victim.
The defendant contends that Mackey’s response—
namely, that she referred the victim to a treatment pro-
gram that helps facilitate the healing process for victims
of sexual abuse—improperly bolstered the victim’s
credibility because it implied that Mackey believed the
victim’s allegations. The defendant concedes that he
failed to preserve this claim for appeal, but nevertheless
contends that, because his claim is one of prosecutorial
impropriety, it is reviewable pursuant to State v. Wil-
liams, 204 Conn. 523, 529 A.2d 653 (1987). See State v.
Stevenson, 269 Conn. 563, 575, 849 A.2d 626 (2004)
(‘‘following a determination that prosecutorial [impro-
priety] has occurred, regardless of whether it was
objected to, an appellate court must apply the Williams
factors to the entire trial’’).
In State v. Stevenson, supra, 269 Conn. 572–73, our
Supreme Court held that, in cases of claimed prosecu-
torial impropriety, ‘‘it is unnecessary for the defendant
to seek to prevail under the specific requirements of
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823
(1989), and, similarly, it is unnecessary for a reviewing
court to apply the four-pronged Golding test.’’2 (Foot-
note omitted.) Such a claim of prosecutorial impropri-
ety must, however, be premised on conduct that is of
truly constitutional magnitude, and not mere eviden-
tiary conduct clothed in constitutional garb. See State
v. Stevenson, supra, 574 n.11. We conclude that the
defendant’s claim of prosecutorial impropriety is simply
that—an unobjected to evidentiary submission by the
prosecutor clothed by the defendant in constitutional
garb.
Our analysis of this claim is controlled by this court’s
decision in State v. Ruffin, 144 Conn. App. 387, 397–99,
71 A.3d 695, cert. granted, 310 Conn. 919, 76 A.3d 634
(2013). In Ruffin, the defendant was convicted of one
count of sexual assault in the first degree, three counts
of risk of injury to a child, and one count of sexual
assault in the fourth degree. On appeal, the defendant
claimed, in relevant part, that ‘‘the prosecutor improp-
erly . . . used the testimony of a clinical child inter-
view specialist [Erin Byrne] to bolster the victim’s
credibility . . . .’’ Id., 388–89. The defendant specifi-
cally claimed that it was improper for the prosecutor
to ask Byrne ‘‘what recommendations she makes for
children after she has interviewed them.’’ Id., 391–92.
In response to this question, Byrne testified ‘‘that she
would make recommendations if a child needs counsel-
ing services; she also stated that she ‘typically’ recom-
mends a medical examination for a child after the
interview. When the prosecutor asked if she made any
recommendations for the victim, Byrne answered that
she recommended ‘counseling services as well as a
medical [examination].’ ’’ Id., 392.
The defendant in Ruffin failed to preserve his claim
of alleged prosecutorial impropriety, but sought to pre-
vail on appeal pursuant to State v. Williams, supra, 204
Conn. 540, and State v. Warholic, 278 Conn. 354, 897
A.2d 569 (2006). State v. Ruffin, supra, 144 Conn. App.
397–98. This court concluded that ‘‘[a]lthough the defen-
dant argues . . . that the prosecutor elicited improper
testimony from Byrne, his actual claim takes issue with
Byrne’s testimony that she recommended counseling
and a medical examination after interviewing the vic-
tim. Thus his claim is evidentiary in nature. Although
our Supreme Court has held that unpreserved claims
of prosecutorial impropriety are to be reviewed under
the Williams factors, that rule does not pertain to mere
evidentiary claims masquerading as constitutional vio-
lations. . . . Evidentiary claims do not merit review
pursuant to Golding . . . because they are not of con-
stitutional magnitude. [R]obing garden variety [eviden-
tiary] claims . . . in the majestic garb of constitutional
claims does not make such claims constitutional in
nature. . . . Putting a constitutional tag on a noncon-
stitutional claim will no more change its essential char-
acter than calling a bull a cow will change its gender.’’
(Footnotes omitted; internal quotation marks omitted.)
State v. Ruffin, supra, 398–99.
Although in the present case the defendant claims
that the prosecutor elicited improper testimony from
Mackey, like the defendant in Ruffin, the defendant’s
claim challenges Mackey’s testimony that she referred
the victim to a counseling program that facilitates the
healing process for victims of sexual abuse. As such,
the defendant’s claim is merely evidentiary in nature,
and does not present a claim of constitutional nature.
Thus, the defendant cannot prevail on his claim of pros-
ecutorial impropriety pursuant to the Williams factors.
II
The defendant next claims that the court improperly
admitted the testimony of William Grodski, a detective,
with respect to his efforts to arrest the defendant. We
conclude that the defendant was not harmed by the
admission of the testimony at issue.
The following additional facts and procedural history
are relevant to our resolution of this claim. Prior to trial,
the prosecution indicated that it would call Grodski to
testify about his efforts to arrest the defendant once
an arrest warrant was issued. In the absence of the
jury, the court noted that Grodski’s testimony would
be relevant only to show the defendant’s consciousness
of guilt. The court then heard an offer of proof, pursuant
to which both parties conducted a full examination of
Grodski. The court subsequently heard argument from
both parties and decided to admit the evidence for the
purpose of demonstrating the defendant’s conscious-
ness of guilt.3
Grodski testified at trial with respect to his efforts
to arrest the defendant. He testified that a warrant for
the defendant’s arrest was issued on January 13, 2009.
On January 22, 2009, he went to the defendant’s home
to execute the warrant, but was informed by the defen-
dant’s family members that the defendant was at his
place of employment. Pursuant to Grodski’s request, the
defendant’s family members indicated that they would
contact the defendant and instruct him to meet Grodski
at the police station. Grodski did not inform the defen-
dant’s family members that there was a warrant for the
defendant’s arrest.
That night, the defendant arrived at the police station;
however, Grodski was never informed of his presence,
and the defendant left without speaking to him. Approx-
imately one hour later, the defendant called Grodski
and asked what he needed to speak with him about.
Grodski informed the defendant that he had a warrant
for his arrest and that the defendant needed to turn
himself in at the police station. The defendant never
returned to the police station, prompting Grodski to
notify the entire police department that there was an
active warrant for the defendant’s arrest. Grodski went
to the defendant’s home on several occasions, but each
time was informed that the defendant was not there.
Grodski also contacted the defendant’s employer, who
advised Grodski that the defendant had not worked
there since January, 2009. Grodski ultimately learned
that the defendant was working for the same employer
at another location and arrested him at that location.
During the defendant’s presentation of evidence, the
defendant testified on his own behalf that, although he
was aware that there was a warrant for his arrest, he
did not turn himself in to the police because he was
trying to earn enough money to hire a lawyer.
Prior to closing arguments and in the absence of the
jury, the court noted that, in light of the defendant’s
testimony, it had decided, sua sponte, not to instruct
the jury on consciousness of guilt. The court stated,
‘‘[w]hile I still think that there would be the basis to
give this instruction, I’ve decided, in an exercise of my
discretion, not to give an instruction on consciousness
of guilt.’’ On the basis of that decision, the court solic-
ited input from both parties and constructed an instruc-
tion limiting the jury’s use of the testimony of both
Grodski and the defendant with respect to the events
leading to the defendant’s arrest. Counsel for the defen-
dant stated that he was satisfied with the proposed
limiting instruction.
During closing argument, the prosecutor did not men-
tion Grodski’s testimony or the police efforts to arrest
the defendant.4 In delivering its charge to the jury, the
court stated: ‘‘[y]ou . . . heard testimony concerning
the issuance of the arrest warrant and the later service
of the arrest warrant upon the defendant. This testi-
mony was admitted solely to allow you to better under-
stand the sequence of events that led to the defendant’s
arrest. From these circumstances, however, you may
not draw any inferences or reach any conclusion . . .
for or against the state or for or against the defendant.
In other words, this particular evidence may not be
considered by you in any way as you determine whether
or not the state has met its burden of proof in this
case.’’ Counsel for the defendant did not take exception
to the court’s charge.
The defendant now claims that, despite the court’s
instruction to the jury, Grodski’s testimony was inad-
missible evidence of consciousness of guilt. We are
not persuaded.
We begin by setting forth the applicable standard of
review. ‘‘We review the trial court’s decision to admit
[or exclude] evidence, if premised on a correct view of
the law . . . for an abuse of discretion. . . . We will
make every reasonable presumption in favor of uphold-
ing the trial court’s ruling, and only upset it for a mani-
fest abuse of discretion. . . . The trial court has wide
discretion to determine the relevancy [and admissibil-
ity] of evidence . . . . In order to establish reversible
error on an evidentiary impropriety . . . the defendant
must prove both an abuse of discretion and a harm that
resulted from such abuse.’’ (Citations omitted; internal
quotation marks omitted.) State v. Anwar S., 141 Conn.
App. 355, 369–70, 61 A.3d 1129, cert. denied, 308 Conn.
936, 66 A.3d 499 (2013). ‘‘[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. Miguel C., 305 Conn. 562, 578–79, 46 A.3d
126 (2012).
We need not consider whether the court abused its
discretion by admitting Grodski’s testimony. Instead,
we conclude that the defendant was not harmed by the
admission of the testimony because the court properly
instructed the jury regarding the evidence and did not
deliver a consciousness of guilt instruction. With input
from both parties, the court constructed a limiting
instruction directing the jury to consider Grodski’s testi-
mony for the sole purpose of establishing the sequence
of events leading to the defendant’s arrest. In delivering
its jury charge, the court specifically stated regarding
the evidence of the police efforts to arrest the defen-
dant: ‘‘This testimony was admitted solely to allow you
to better understand the sequence of events that led
to the defendant’s arrest. From these circumstances,
however, you may not draw any inferences or reach
any conclusion . . . for or against the state or for or
against the defendant. In other words, this particular
evidence may not be considered by you in any way as
you determine whether or not the state has met its
burden of proof in this case.’’ Furthermore, during its
closing argument, the state did not mention
Grodski’s testimony.
‘‘Our jurisprudence is clear . . . that unless there is
a clear indication to the contrary, a jury is presumed
to follow the court’s instructions.’’ (Internal quotation
marks omitted.) State v. Boscarino, 86 Conn. App. 447,
460, 861 A.2d 579 (2004). Therefore, there is no basis
in this record to conclude that the jury considered the
evidence for any but a benign purpose. We thus con-
clude that the court’s decision to admit Grodski’s testi-
mony did not result in any harm to the defendant.
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 and the crime of risk of injury to a child, we decline
to use the defendant’s full name or to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
1
Earlier in her testimony, Mackey had stated that one of the purposes of
the multidisciplinary team is to ensure that a child who alleges sexual abuse
‘‘is referred properly to mental health treatment.’’
2
‘‘[A] defendant can prevail on a claim of constitutional error not preserved
at trial only if all of the following conditions are met: (1) the record is
adequate to review the alleged claim of error; (2) the claim is of constitutional
magnitude alleging the violation of a fundamental right; (3) the alleged
constitutional violation clearly exists and clearly deprived the defendant of
a fair trial; and (4) if subject to harmless error analysis, the state has failed
to demonstrate harmlessness of the alleged constitutional violation beyond
a reasonable doubt.’’ (Emphasis in original; footnote omitted.) State v. Gold-
ing, supra, 213 Conn. 239–40. The first two of these analytical prongs involve
whether the claim merits appellate review, and the second two involve the
merits of the claim. See State v. Estrella, 277 Conn. 458, 468 n.15, 893 A.2d
348 (2006).
3
Following the offer of proof, the defendant argued, in relevant part,
that Grodski’s testimony did not constitute evidence of flight because the
defendant did not move to a new residence or leave the jurisdiction. The
court found that the defendant’s effort to avoid apprehension does not
require relocation, noting that ‘‘one can endeavor to avoid apprehension
and yet remain local.’’ The court accordingly determined that Grodski’s
testimony was admissible for the purpose of demonstrating the defendant’s
consciousness of guilt.
4
During the defendant’s closing argument, defense counsel referred to
Grodski’s testimony, stating: ‘‘Now, [Grodski] testified as to efforts to speak
to [the defendant] and to serve a warrant on him. By his own testimony,
when he initially left a message for [the defendant], he . . . went down to
the police station. He’s not sure how long [the defendant] waited, but, they
didn’t meet. But, what did [the defendant] do, he called him, and, then, he
said, even though [Grodski] couldn’t remember the content of the . . .
conversation, the fact is, [the defendant] told you, he said, yeah, I called
him. He said, yeah, well, I’ll talk to you, you know, with a lawyer, which
was reasonable under the circumstances. Although [Grodski] claims to have
tried to get [the defendant] to turn himself in, no one is required to turn
himself in if there’s an outstanding warrant. There’s no evidence that [the
defendant] fled the jurisdiction, that he moved . . . or that he did anything
but go to work and go home. In fact, he was arrested at his place of
work. [Grodski] had simply called the wrong [place of employment] looking
for him.’’