State v. Donald H. G. , 148 Conn. App. 398 ( 2014 )

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STATE OF CONNECTICUT v. DONALD H. G.1
(AC 34392)
Alvord, Bear and Schaller, Js.
Argued December 5, 2013—officially released February 25, 2014
(Appeal from Superior Court, judicial district of Anso-
nia-Milford, Keegan, J.)
W. Theodore Koch III, assigned counsel, for the appel-
lant (defendant).
Jennifer F. Miller, special deputy assistant state’s
attorney, with whom, on the brief, were Kevin D.
Lawlor, state’s attorney, and Charles M. Stango, senior
assistant state’s attorney, for the appellee (state).
Opinion
BEAR, J. The defendant, Donald H. G., appeals from
the judgment of conviction, rendered by the trial court
following a jury trial, of sexual assault in the first degree
in violation of General Statutes § 53a-70 (a) (2), sexual
assault in the third degree in violation of General Stat-
utes § 53a-72a (a) (1) (A), and three counts of risk of
injury to a child in violation of General Statutes § 53-
21 (a) (2).2 On appeal, the defendant claims: (1) the
court erred in allowing the state to introduce evidence
of uncharged misconduct, (2) the court erred when it
refused to conduct an in camera review of the victim’s
psychological records, (3) the court’s improper
response to a question posed by the jury during its
deliberations deprived him of a fair trial, and (4) the
prosecutor committed prejudicial impropriety during
closing and rebuttal argument. We affirm the judgment
of the trial court.
The following facts, which reasonably could have
been found by the jury, are relevant to the defendant’s
appeal. The minor victim, who was born in October,
1992, is the niece of the defendant. In the time period
between May and October, 2003, when the victim was
age ten or eleven, she, along with her sister and her
friend, went to the defendant’s workplace to help him
paint the interior of the building. The victim went
upstairs to paint the office while her sister and her
friend remained downstairs. The defendant entered the
office, where he kissed the victim, pulled down his
pants, and asked the victim to perform fellatio on him.
The victim complied, while the defendant, who was
standing against the wall, guided her head. Before he
ejaculated, the defendant warned the victim and told
her to swallow it. The victim again complied. The defen-
dant told the victim she was doing ‘‘a good job.’’ The
defendant then pulled down the victim’s shorts and
began to perform cunnilingus on her for a couple of
minutes, while looking to make sure no one was enter-
ing the room. The defendant also penetrated the victim’s
vagina with his tongue.
The defendant later took the victim’s sister and the
victim’s friend home, but he returned to his workplace
with the victim where he continued to sexually assault
her by inserting his fingers into her vagina. The defen-
dant told the victim that she was ‘‘grown up and
mature,’’ and he convinced the victim that the sexual
assault was their secret. The defendant also asked the
victim if she wanted to go to a movie theatre with him.
The victim pretended to telephone her mother because
she did not want to go with the defendant, and she told
the defendant that her mother said she could not go
with him. On the basis of these facts, the state charged
the defendant with one count of sexual assault in the
first degree and two counts of risk of injury to a child.
On or about December 24, 2007, the victim’s family
had a Christmas party, which the defendant and others
attended. During the party, the victim went into the
garage, which had an upstairs room with a bar, pool
table, television and bathroom, to get a beverage, during
which time she encountered the defendant. When the
defendant walked by the victim, he slapped her but-
tocks. ‘‘[F]lustered and annoyed,’’ the victim retreated
to her bedroom, where the defendant appeared shortly
thereafter. The defendant, who had been drinking but
did not appear intoxicated, asked the victim to kiss him
or to perform fellatio on him. The victim declined, but
the defendant began to rub her back and squeeze her
buttocks. The defendant also tried to convince the vic-
tim to go for a ride with him, but she refused and
returned to the party. On the basis of these facts, the
state charged the defendant with one count of sexual
assault in the third degree and one count of risk of
injury to a child.
On or about December 24, 2008, the victim’s family
again was hosting a Christmas party, which the defen-
dant and others attended. During the party, the victim
was watching television in the room above the garage,
when the defendant, who appeared to be intoxicated,
entered the room and asked the victim to make him a
cocktail. As she made the cocktail, the defendant kept
trying to get close to the victim, but she kept moving
away. The victim was scared and just wanted the defen-
dant to let her go. When she tried to exit the room, the
defendant, whom the victim described as a ‘‘really big
guy [who is] strong,’’ pinned her against the wall and
began to run his hands down her body, kissing her and
grabbing her chest, while holding both of her hands
with one of his hands. The victim also testified that the
defendant digitally penetrated her vagina during this
assault. The victim was afraid, especially because of
the defendant’s size and the fact that she ‘‘was a scrawny
kid . . . .’’ She ‘‘just—I wanted help . . . [and] didn’t
want this to happen anymore.’’ On the basis of these
facts, hereinafter referred to as the ‘‘2008 Christmas
party incident,’’ the state charged the defendant with
one count of sexual assault in the first degree.
On July 2, 2009, the victim, while staying with a
friend’s family due to a deterioration in her relationship
with her family, confided in her friend’s mother that
the defendant repeatedly had sexually abused her. A
few days later, the friend’s mother drove the victim to
the police station to report the sexual abuse. The victim
made further disclosures to the police on August 27,
2009, and September 5, 2009.
The defendant was arrested and charged, by way of
an amended information, with two counts of sexual
assault in the first degree, one count of sexual assault
in the third degree, and three counts of risk of injury
to a child. The jury found the defendant guilty of all
charges with the exception of the count of sexual
assault in the first degree that stemmed from the 2008
Christmas party incident, for which the jury returned
a verdict of not guilty. The court accepted the jury’s
verdict, rendered judgment of conviction on five counts,
and imposed a total effective sentence of thirty years
incarceration, ten years of which were mandatory, fol-
lowed by five years of parole with special conditions,
and lifetime registration as a sexual offender. This
appeal followed. Additional facts will be set forth as
necessary.
I
The defendant claims that the court abused its discre-
tion in permitting the state to introduce uncharged mis-
conduct evidence. He argues that he was charged with
crimes related to three incidents involving the victim,
but the court permitted the state to introduce evidence
relating to a total of six incidents involving the victim,
three of which pertained to misconduct for which he
never was charged. He contends that the probative
value of this evidence was far outweighed by its prejudi-
cial effect.3 The state argues that the court properly
balanced the probative value against its prejudicial
effect and did not abuse its discretion in concluding that
the evidence was admissible. We agree with the state.
The following additional facts are relevant to this
issue. On August 15, 2011, the state filed a motion
requesting that it be permitted to introduce two inci-
dents of uncharged misconduct involving the defendant
and the victim. In the motion, the state alleged that the
first incident involved an allegation that the defendant,
in October, 2002, had the then nine or ten year old
victim perform fellatio on him while they were under
a wooden dock in Essex. The state alleged that the
second incident occurred between 2007 and 2009 in
Vermont and involved the defendant having forced sex-
ual intercourse with the victim. The state then amended
its request and sought to introduce evidence of addi-
tional incidents of uncharged misconduct, which it
alleged occurred at various unnamed times and places
but were instances wherein the defendant forced the
victim to perform fellatio on him. The state alleged
that these instances were so frequent that they blended
together in the mind of the victim, but that there was
a common link between them because the defendant
always ejaculated and always instructed the victim to
swallow the ejaculate. The defendant objected to the
introduction of any prior incidents of uncharged mis-
conduct.
Following a hearing, the court, citing State v. DeJesus,
288 Conn. 418, 953 A.2d 45 (2008), superseded in part
after reconsideration by State v. Sanseverino, 291 Conn.
574, 579, 969 A.2d 710 (2009), State v. James, 211 Conn.
555, 560 A.2d 426 (1989), and State v. Linarte, 107 Conn.
App. 93, 944 A.2d 369, cert. denied, 289 Conn. 901, 957
A.2d 873 (2008), granted the state’s request to introduce
the evidence of uncharged misconduct, concluding that
the evidence was not too remote in time, that it put the
sequence of events into perspective, that it was relevant
to motive and intent, and that it demonstrated the defen-
dant’s ‘‘lustful inclination’’ toward the victim. The court
cautioned the state, however, from making a ‘‘gratuitous
recitation’’ of the uncharged incidents in order to mini-
mize the prejudicial nature of the evidence. Prior to the
testimony from the victim, the court also thoroughly
instructed the jury that the evidence of uncharged
events was admitted only for the limited purpose of
demonstrating the defendant’s motive and intent to
commit the charged crimes. The court also explained
to the jury that the victim would testify about the events
in chronological order, with the uncharged misconduct
being the first events about which she would testify
because they occurred before the charged misconduct.
‘‘As a general rule, evidence of prior misconduct is
inadmissible to prove that a criminal defendant is guilty
of the crime of which the defendant is accused. . . .
On the other hand, evidence of crimes so connected
with the principal crime by circumstance, motive,
design, or innate peculiarity, that the commission of
the collateral crime tends directly to prove the commis-
sion of the principal crime, is admissible. The rules of
policy have no application whatever to evidence of any
crime which directly tends to prove that the accused
is guilty of the specific offense for which he is on trial.
. . . [Our Supreme Court has] developed a two part
test to determine the admissibility of such evidence.
First, the evidence must be relevant and material to at
least one of the circumstances encompassed by the
exceptions [set forth in § 4-5 (b) of the Connecticut
Code of Evidence]. . . . Second, the probative value
of the evidence must outweigh its prejudicial effect.
. . . Because of the difficulties inherent in this balanc-
ing process, the trial court’s decision will be reversed
only whe[n] abuse of discretion is manifest or whe[n]
an injustice appears to have been done. . . . On review
by this court, therefore, every reasonable presumption
should be given in favor of the trial court’s ruling.’’
(Footnote omitted; internal quotation marks omitted.)
State v. Franko, 142 Conn. App. 451, 459–60, 64 A.3d
807, cert. denied, 310 Conn. 901, 75 A.3d 30 (2013).
In cases of sexual misconduct, however, our Supreme
Court has ‘‘adopted an exception to § 4-5 (a) of the
Connecticut Code of Evidence . . . allowing the
admission of prior misconduct evidence to establish
propensity in sex related cases if certain conditions are
met. . . . Specifically, [it] concluded in [State v.
DeJesus, supra, 288 Conn. 470–74] that evidence of
uncharged sexual misconduct is admissible only if it is
relevant to prove that [a] defendant had a propensity
or a tendency to engage in the type of aberrant and
compulsive criminal sexual behavior with which he or
she [was] charged. Relevancy is established by satis-
fying the liberal standard pursuant to which [prior sex
crimes] evidence previously was admitted under the
common scheme or plan exception. Accordingly, evi-
dence of uncharged misconduct [or other crimes] is
relevant to prove that [a] defendant had a propensity
or a tendency to engage in the crime charged only if it
is: (1) . . . not too remote in time; (2) . . . similar to
the offense charged; and (3) . . . committed [against]
persons similar to the prosecuting witness.
‘‘[Such] [e]vidence . . . is admissible only if its pro-
bative value outweighs the prejudicial effect that invari-
ably flows from its admission. . . . In balancing the
probative value of such evidence against its prejudicial
effect, however, trial courts must be mindful of the
purpose for which the evidence is to be admitted,
namely, to permit the jury to consider a defendant’s
prior bad acts in the area of sexual abuse or child
molestation for the purpose of showing propensity.4
. . . State v. Gupta, 297 Conn. 211, 224, 998 A.2d 1085(2010); see also State v. DeJesus, supra, 288 Conn. 474(to minimize the risk of undue prejudice to the defen-
dant, the admission of evidence of uncharged sexual
misconduct under the limited propensity exception
adopted herein must be accompanied by an appropriate
cautionary instruction to the jury).
‘‘The admission of evidence of . . . uncharged mis-
conduct is a decision properly within the discretion of
the trial court. . . . [E]very reasonable presumption
should be given in favor of the trial court’s ruling. . . .
[T]he trial court’s decision will be reversed only where
abuse of discretion is manifest or where an injustice
appears to have been done. . . . [T]he burden to prove
the harmfulness of an improper evidentiary ruling is
borne by the defendant . . . [who] must show that it
is more probable than not that the erroneous action of
the court affected the result.’’ (Internal quotation marks
omitted.) State v. George A., 308 Conn. 274, 293–95, 63
A.3d 918 (2013).
The defendant argues in part that the more liberal
propensity standard for admission of uncharged sexual
misconduct is not applicable in this case because the
court allowed the evidence ‘‘on the grounds of intent
and motive, not propensity.’’ The state agrees but also
points out that the defendant in his appellate brief does
not contest the admissibility of the evidence on the
grounds of motive and intent, but only ‘‘challenges the
trial court’s finding that the prejudicial effect of the
uncharged misconduct evidence outweighed its proba-
tive value.’’ The state further contends that ‘‘[b]ecause
the defendant is not attacking the trial court’s finding
that the evidence was admissible on motive and intent
grounds, the state need not provide alternative grounds
for affirmance . . . .’’ After reviewing the defendant’s
brief and his claims on appeal, we agree that he does
not contest the admissibility of the evidence on the
grounds of motive and intent, but challenges only the
court’s ruling that the probative value of the evidence
outweighed its prejudicial effect. We further conclude
that he has failed to demonstrate that the court’s ruling
was an abuse of discretion.5
The defendant argues that the uncharged sexual mis-
conduct evidence in this case should have been
excluded because it was more prejudicial than proba-
tive. We disagree. ‘‘Although evidence of child sex abuse
is undoubtedly harmful to the defendant, that is not the
test of whether evidence is unduly prejudicial. Rather,
evidence is excluded as unduly prejudicial when it tends
to have some adverse effect upon a defendant beyond
tending to prove the fact or issue that justified its
admission into evidence. . . . As explained in
DeJesus, because of the unusually aberrant and patho-
logical nature of the crime of child molestation, prior
acts of similar misconduct, as opposed to other types of
misconduct, are deemed to be highly probative because
they tend to establish a necessary motive or explanation
for an otherwise inexplicably horrible crime . . . and
assist the jury in assessing the probability that a defen-
dant has been falsely accused of such shocking behav-
ior.’’ (Emphasis in original; internal quotation marks
omitted.) State v. Allen, 140 Conn. App. 423, 440, 59
A.3d 351, cert. denied, 308 Conn. 934, 66 A.3d 497 (2013).
Uncharged misconduct evidence may be introduced
to show such things as motive, common scheme, pat-
tern, or design. State v. Barry A., 145 Conn. App. 582,
594, 76 A.3d 211, cert. denied, 310 Conn. 936, 79 A.3d
889 (2013). Additionally, ‘‘evidence of prior sexual mis-
conduct with the same victim is commonly admitted to
show a lustful inclination toward the victim.’’ (Internal
quotation marks omitted.) State v. Andersen, 132 Conn.
App. 125, 135, 31 A.3d 385 (2011), cert. denied, 305
Conn. 906, 44 A.3d 182 (2012); see State v. James, supra,
211 Conn. 578 (‘‘[e]vidence of prior sexual misconduct
with the complainant in a sexual assault case has com-
monly been admitted to show a lustful inclination
toward the victim’’).
In this case, the court found that the uncharged sex-
ual misconduct evidence was probative of the defen-
dant’s intent and his motive for committing the acts
of sexual abuse against the victim, namely, his lustful
inclinations toward this specific victim. As explained
in Barry A., admitting uncharged sexual misconduct
evidence for the purpose of establishing motive in a
sexual abuse case is probative because it would tend ‘‘to
establish an explanation for this ‘inexplicably horrible
crime’; State v. Allen, supra, 140 Conn. App. 440; and
would help the jury determine whether the allegations
of sexual assault were true.’’ State v. Barry A., supra,
145 Conn. App. 594–95.
As to the defendant’s claim that the court abused its
discretion because the evidence in this case was
unfairly prejudicial, we disagree and conclude that it
readily can be inferred from the record that the court
analyzed the relevant factors and performed the requi-
site balancing test before permitting the introduction
of the uncharged sexual misconduct evidence. See State
v. Nunes, 260 Conn. 649, 690, 800 A.2d 1160 (2002)
(before concluding that trial court performed necessary
balancing test, ‘‘reviewing court must be able to infer
from the entire record that the trial court considered the
prejudicial effect of the evidence against its probative
nature before making a ruling’’). The parties submitted
motions and memoranda on the issue, and the court
heard thorough oral argument from counsel. Two days
later, the court issued its oral ruling, specifically stating
that ‘‘in order for uncharged misconduct . . . to be
admissible, it has to be relevant and material to one of
the exceptions to the general rule, and it must be more
probative than prejudicial.’’ The court then considered
the relevance and materiality of each instance and
determined that they were more probative than preju-
dicial.
Additionally, the court also assured counsel that it
would give cautionary instructions to the jury. Our
review of the trial transcripts reveals that the court in
fact gave repeated cautionary instructions to the jury on
the limited use of the prior sexual misconduct evidence.
Such instructions serve to minimize the risk of undue
prejudice to the defendant. See State v. Barry A., supra,
145 Conn. App. 596 (court’s limiting instruction on use
of uncharged sexual misconduct evidence for intent or
motive is more favorable and less prejudicial to defen-
dant than propensity instruction under DeJesus).
Accordingly, on the basis of the record before us, we
are unable to conclude that the court abused its broad
discretion in admitting the prior uncharged sexual mis-
conduct evidence involving the victim.
II
The defendant next claims that the court erred when
it refused to conduct an in camera review of the victim’s
psychological records. The defendant argues that this
evidence was critical because ‘‘[i]t would have shown
how [the victim] was actually being untruthful about
that most vivid (and gratuitous) incident, [Vermont].’’
(Emphasis in original.) The state argues that the court
did not abuse its discretion because the defendant
based his request on overbroad and vague statements
that the records might contain relevant information,
and because he failed to make the threshold showing
that the victim had a mental condition that would affect
her ability to recall and relate events correctly. We agree
with the state.
The defendant filed a request that the court conduct
an in camera review of the victim’s psychological
records on several grounds, including (1) the victim
had remembered more incidents of abuse at the hands
of the defendant during counseling than she had remem-
bered when she initially disclosed the abuse, (2) the
victim had told her counselor that she had lost her
virginity to the defendant while in Vermont, but she
testified that the defendant had never had vaginal inter-
course with her and that she had never told anyone
that the defendant had engaged in vaginal intercourse
with her,6 and (3) the information ‘‘could reveal informa-
tion of an exculpatory nature, including, but not limited
to, statements made by her about the crimes alleged in
this case which would serve to impeach her credibility.’’
The state argued that there was no evidence that the
victim suffered from any type of mental illness that
would warrant an in camera review of the victim’s confi-
dential counseling records.
Following argument, the court denied the defendant’s
request for an in camera review of the victim’s psycho-
logical records, holding that the defendant had thor-
oughly cross-examined the victim as to any possible
inconsistencies between her statements and her in-
court testimony, and that the defendant had failed to
make ‘‘the showing that the records contain[ed] infor-
mation on the witness’ ability to perceive, recall, or
relate events or her testimonial capacity.’’
‘‘This court will review a trial court’s denial of a
defendant’s request to conduct an in camera review of
confidential records pursuant to our standard of review
for evidentiary rulings. . . . Therefore, [w]e review a
court’s conclusion that a defendant has failed to make
a threshold showing of entitlement to an in camera
review of statutorily protected records . . . under the
abuse of discretion standard. . . . We must make every
reasonable presumption in favor of the trial court’s
action. . . . The trial court’s exercise of its discretion
will be reversed only where the abuse of discretion is
manifest or where injustice appears to have been done.’’
(Internal quotation marks omitted.) State v. Campa-
naro, 146 Conn. App. 722, 732, 78 A.3d 267 (2013), cert.
denied, 311 Conn. 902, A.3d (2014).
‘‘It is well settled in this state that before a criminal
defendant may obtain an in camera inspection of a
witness’ confidential records for purposes of impeach-
ment, he or she must first demonstrate that there is
reasonable ground to believe that the failure to produce
the information is likely to impair the defendant’s right
of confrontation such that the witness’ direct testimony
should be stricken. . . .
‘‘[T]he linchpin of the determination of the defen-
dant’s access to the records is whether they sufficiently
disclose material especially probative of the ability to
comprehend, know and correctly relate the truth . . .
so as to justify breach of their confidentiality and dis-
closing them to the defendant in order to protect his
right of confrontation. . . . Where . . . the witness’
records are sought for the purpose of obtaining evi-
dence of a mental condition bearing on the witness’
testimonial capacity, we require the defendant, who
is afforded an opportunity to voir dire persons with
knowledge of the contents of the records sought, to
adduce a factual basis from which the trial court may
conclude that there is a reasonable ground to believe
that the records will reveal that at any pertinent time
[the witness’ mental problem] affected his testimonial
capacity to a sufficient degree to warrant further
inquiry.’’ (Citations omitted; internal quotation marks
omitted.) State v. Hickey, 135 Conn. App. 532, 557–58, 43
A.3d 701, cert. denied, 306 Conn. 901, 52 A.3d 728 (2012).
We conclude that the trial court did not abuse its
discretion in denying the defendant’s request for an in
camera review of the victim’s psychological records.
First, the defendant’s request was vague and specula-
tive. ‘‘[T]he right to cross-examine witnesses does not
include the power to require the pretrial disclosure of
any and all information that might be useful in contra-
dicting unfavorable testimony. . . . The general asser-
tion that such information, if found, could be useful or
helpful to his defense was nothing more than a general
fishing expedition into protected and confidential
records. A showing to warrant an in camera review
requires more than mere speculation.’’ (Citation omit-
ted; emphasis in original; internal quotation marks omit-
ted.) State v. Campanaro, supra, 146 Conn. App. 733.
Additionally, we agree with the court that the defendant
failed to make a threshold showing that the victim had
a mental condition affecting her ‘‘ability to perceive,
recall, or relate events or her testimonial capacity.’’
Accordingly, we conclude that the court did not abuse
its discretion in refusing to conduct an in camera review
of these records.
III
The defendant also claims that the court’s improper
response to a question posed by the jury during its
deliberations deprived him of a fair trial.7 He argues
that the court’s supplemental instruction to the jury in
response to a note it sent regarding the appropriate use
of three exhibits that were marked for identification
only failed to clarify that although the exhibits were
not evidence, the testimony surrounding them was evi-
dence. Specifically, the defendant argues: ‘‘When the
jury wanted to examine [the victim’s] statements and
[Detective Steven] Young’s notes, the court instructed
them that ‘they are not part of the body of evidence
from which you can decide what the facts of this case
are.’ . . . Although the court also stated that the live
testimony was for the jury’s consideration, this does
not go far enough. When lay people are told what they
can not consider, they must also be told specifically
what they can consider . . . .’’ (Citation omitted;
emphasis in original.) The state argues that the claim
is without merit because the ‘‘court’s supplemental
instruction, viewed in concert with its original instruc-
tion, properly apprised the jury that such exhibits were
not evidence, but that the jury could consider the testi-
mony of the witnesses from the [witness] stand, as well
as the photographs and other exhibits that had been
marked as full.’’ We agree with the state.
The following additional facts are relevant. During
deliberations, the jury sent a written request to the court
asking to view the two police reports signed by the
victim and Detective Young’s handwritten report. These
documents, however, had not been introduced as full
exhibits during trial. After receiving the request, the
court, out of the presence of the jury, engaged in the
following colloquy with counsel:
‘‘The Court: Okay. All right. We have two notes, ladies
and gentlemen. The first note says we would like to
request the two signed police statements of [the victim]
and the report of Detective Young; that is marked court
exhibit 4. Court exhibit 5 is, we would like Detective
Young’s handwritten notes. So, of course, as the parties
are well aware, it is not evidence in the case. None of
these documents are; so, that’s what I’m going to
instruct them. I’m going to remind them that evidence
in the case is the testimony and the exhibits that are
before them, and that is the body of evidence from
which they have to decide the facts of the case. . . .
‘‘[The Prosecutor]: That’s generally, is, unless Your
Honor adds the reports and the notes were referred
only in an attempt to bring out inconsistent statements
with regard for the limiting purpose; that’s what that’s
for. If not, the fact that they’re not evidence probably
suffices. The evidence comes from the [witness] stand.
‘‘The Court: All right.
‘‘[Defense Counsel]: I don’t think Your Honor should
say they were only used for that. I think Your Honor
should just say they’re not evidence. You know, it’s just
the testimony that was presented, period.
‘‘The Court: Okay. Bring them out.’’
The jury then was brought back into the courtroom,
where the court offered the following supplemental
instruction:
‘‘The Court: All right. Very good. All right. Ladies and
gentlemen, I’m in receipt of your notes; they’ve been
marked as court exhibits 4 and 5. I am going to read
them into the record.
‘‘We would like to request the two signed police state-
ments of [the victim] and the report of Detective Young.
‘‘And then the second note, court exhibit 5, says we
would like Detective Young’s handwritten notes.
‘‘Well, these documents are not evidence in this case.
They were not entered as exhibits in evidence, and so
they are not part of the body of evidence from which
you can decide what the facts of this case are. The
evidence that you have before you is the testimony of
the witnesses from this [witness] stand and the photo-
graphs and other exhibits that had been marked as full
exhibits; no [identification] exhibits, all right.
‘‘So, with that, I will excuse you to return to your
deliberations and you’re all set.’’
After the jury exited the courtroom, the following
colloquy took place:
‘‘[Defense Counsel]: May I just say something, Your
Honor?
‘‘The Court: Yes, sir.
‘‘[Defense Counsel]: Just with respect to Your Hon-
or’s instructions, I think Your Honor’s instruction they
can’t get—things weren’t marked as exhibits, so, you’re
correct. But I think they might be confused if you say
they can’t consider those items as evidence. It’s the
testimony with respect to those items you can consider.
‘‘The Court: I said the testimony that came from this
[witness] stand.
‘‘[Defense Counsel]: With the [witness] stand, right.
‘‘The Court: Yes.
‘‘[Defense Counsel]: Okay.
‘‘The Court: I don’t—I’m not understanding what your
concern is.
‘‘[Defense Counsel]: I guess my point was, if I’m sit-
ting there and you say that they can’t consider those
things as evidence in the case, they can consider the
testimony with respect to them as evidence, but not—
‘‘The Court: Playback for me what I said.
‘‘[Defense Counsel]: Thanks. Maybe I’m wrong.’’
The court reporter then played back the court’s sup-
plemental instruction, and the discussion continued.
‘‘The Court: Okay. So, what I said is, these documents
are not evidence.
‘‘[Defense Counsel]: Right.
‘‘The Court: I don’t know. Unless you—
‘‘[Defense Counsel]: That’s correct.
‘‘The Court: Upon rehearing it, unless you think there
is something I need to clarify. The court is not of the
opinion that it indicated that the information from the
testimony that related to these documents was not evi-
dence. I said these documents are not evidence. . . .
‘‘[Defense Counsel]: Yeah. I heard you say these docu-
ments are not evidence. I just think that—by them hear-
ing that they may think that anything on those
documents can’t be used as evidence that was [brought]
out in the testimony. My suggestion would be to just
say, look, you can consider whatever evidence through
testimony was presented regarding that, but we can’t
admit the—you know the [identification] exhibits.
‘‘The Court: Why do you want me to highlight some-
thing that was not in the jurors’ notes? It was, can
we have these things? No, these documents are not
evidence. The evidence is the testimony and the
exhibits.
‘‘[The Prosecutor]: Thank you, Your Honor.
‘‘The Court: I decline to reinstruct in that way.
‘‘[Defense Counsel]: Thank you, Your Honor.’’
Our analysis of the defendant’s claim begins with the
applicable standard of review for a claim of instruc-
tional error. ‘‘[I]ndividual jury instructions should not
be judged in artificial isolation, but must be viewed in
the context of the overall charge. . . . The pertinent
test is whether the charge, read in its entirety, fairly
presents the case to the jury in such a way that injustice
is not done to either party under the established rules
of law. . . . In other words, we must consider whether
the instructions [in totality] are sufficiently correct in
law, adapted to the issues and ample for the guidance
of the jury. . . . Additionally, [w]hile a request to
charge that is relevant to the issues in a case and that
accurately states the applicable law must be honored,
a court need not tailor its charge to the precise letter
of such a request. . . . As long as [the instructions]
are correct in law, adapted to the issues and sufficient
for the guidance of the jury . . . we will not view the
instructions as improper. . . . For nonconstitutional
claims, if a jury instruction is determined to have been
improper, it is grounds for reversal only if it is reason-
ably probable that the jury was misled.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Myers,
126 Conn. App. 239, 254–55, 11 A.3d 1100, cert. denied,
300 Conn. 923, 14 A.3d 1006 (2011).
The defendant argues that the court’s supplemental
instruction to the jury was improper because the court
failed to clarify that although the exhibits marked for
identification only were not evidence, the testimony
surrounding them was evidence. In this case, despite
the defendant’s argument to the contrary, the court
properly instructed the jury in response to its very spe-
cific questions. Furthermore, the court did reiterate to
the jury during its supplemental instruction that the
testimony of the witnesses was evidence. Specifically,
it stated: ‘‘Well, these documents are not evidence in
this case. They were not entered as exhibits in evidence,
and so they are not part of the body of evidence from
which you can decide what the facts of this case are.
The evidence that you have before you is the testimony
of the witnesses from this [witness] stand and the
photographs and other exhibits that had been marked
as full exhibits; no [identification] exhibits, all right.’’
(Emphasis added.) This persuades us that the court
properly instructed the jury on this matter and there
is no reasonable probability that the jury was misled,
especially when viewed in combination with the court’s
main instructions to the jury, which included the
instruction: ‘‘The evidence from which you are to decide
what the facts are consists of: (1) the sworn testimony
of witnesses both on direct and cross examination,
regardless of who called the witness; and (2) the exhib-
its that have been admitted into evidence.’’
IV
The defendant’s final claim is that the prosecutor
committed two instances of prejudicial impropriety,
one during closing argument and one during rebuttal.
Specifically, the defendant argues: ‘‘The first instance
occurred in the conclusion of the first part of his closing
argument, when [the prosecutor] said, ‘I would ask . . .
that you convict [the defendant] of doing the things
that we know he did; sexually assaulting that young
lady whenever he could for seven years.’ . . . The sec-
ond instance occurred during rebuttal, when [the prose-
cutor] argued, ‘I said we need Ms. [Lisa] Melillo, [the
state’s expert witness], who I know is an authority on
the general characteristics of behavior . . . .’ ’’8 (Cita-
tion omitted; emphasis in original.) We are not per-
suaded that the remarks were improper.
‘‘[T]he touchstone of due process analysis in cases
of alleged prosecutorial [impropriety] is the fairness of
the trial, and not the culpability of the prosecutor. . . .
The issue is whether the prosecutor’s conduct so
infected the trial with unfairness as to make the
resulting conviction a denial of due process. . . . [T]he
burden is on the defendant to show, not only that the
remarks were improper, but also that, considered in
light of the whole trial, the improprieties were so egre-
gious that they amounted to a denial of due process.
. . .
‘‘[I]n analyzing claims of prosecutorial [impropriety],
we engage in a two step analytical process. The two
steps are separate and distinct: (1) whether [impropri-
ety] occurred in the first instance; and (2) whether that
[impropriety] deprived a defendant of his due process
right to a fair trial.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Barry A., supra, 145 Conn.
App. 598. As ‘‘recently clarified in State v. Payne, 303
Conn. 538, 562–63, 34 A.3d 370 (2012), ‘when a defen-
dant raises on appeal a claim that improper remarks
by the prosecutor deprived the defendant of his consti-
tutional right to a fair trial, the burden is on the defen-
dant to show . . . that the remarks were improper
. . . .’ ’’ State v. Otto, 305 Conn. 51, 77, 43 A.3d 629(2012).
In the present case, the defendant argues that the
prosecutor committed impropriety by asking the jury
to convict the defendant ‘‘of doing the things that we
know he did’’ and by telling the jury that ‘‘he knows’’
that the state’s expert is an authority. The first step in
our analysis is to determine if the defendant met his
burden ‘‘to show . . . that the remarks were improper
. . . .’’ State v. Payne, supra, 303 Conn. 563. We con-
clude that the defendant has failed to meet his burden.
The state argues that the defendant’s ‘‘claims should
be rejected. As a preliminary matter, the defendant cites
no legal authority to support his contention that either
of these comments was improper.’’ We agree. The
entirety of the defendant’s analysis in his appellate brief
on whether the prosecutor’s two remarks were
improper under prong one is set forth as follows: ‘‘In
a trial so full of uncharged misconduct, with charges
as inherently prejudicial as these, where the state’s case
is by definition not strong, when a prosecutor argues
that the jury ought to convict the defendant of what
we know he did, there is no known cure for the preju-
dice. This argument . . . lowers the state’s burden,
personally vouches for the credibility of the state’s
entire case, and invades the jury’s neutral province.
‘‘When the prosecutor tells the jury that he knows
that his expert witness is an authority, even when he
steps back from his passion to acknowledge the court’s
admonition, it does not matter. The state has already
spoken; the jury knows how its representative feels.’’9
(Emphasis in original.)
The foregoing is the entire argument and analysis set
forth by the defendant in his effort to meet his burden
to show that the prosecutor’s remarks were improper.
Although he argues that the first claimed instance of
impropriety ‘‘lowers the state’s burden, personally
vouches for the credibility of the state’s entire case,
and invades the jury’s neutral province,’’ he does not
address how the remark does this. Further, he does
not explain under what theory the second remark is
improper. He sets forth no case law, no other supporting
authority and no substantive analysis on his claim that
the remarks were improper. Nevertheless, we have
reviewed the remarks in the context in which they were
made, and we are not persuaded that they were
improper.
‘‘[A] prosecutor may not express his own opinion,
directly or indirectly, as to the credibility of the wit-
nesses. . . . Nor should a prosecutor express his opin-
ion, directly or indirectly, as to the guilt of the
defendant. . . . Such expressions of personal opinion
are a form of unsworn and unchecked testimony, and
are particularly difficult for the jury to ignore because
of the prosecutor’s special position. . . . Moreover,
because the jury is aware that the prosecutor has pre-
pared and presented the case and consequently, may
have access to matters not in evidence . . . it is likely
to infer that such matters precipitated the personal
opinions. . . . It is not, however, improper for the pros-
ecutor to comment upon the evidence presented at trial
and to argue the inferences that the jurors might draw
therefrom . . . .’’ (Citation omitted; internal quotation
marks omitted.) State v. Luster, 279 Conn. 414, 435, 902
A.2d 636 (2006).
In his closing statement, the prosecutor reviewed the
evidence as to each of the charged crimes, thoroughly
summarized the case to the jury and, as his final remark,
asked the jury to convict the defendant, stating: ‘‘I would
ask at the conclusion of the arguments and at the con-
clusion of the Judge’s charge that you convict [the
defendant] of doing the things that we know he did;
sexually assaulting that young lady whenever he could
for seven years.’’ We conclude that in this first instance
of claimed impropriety, the prosecutor inartfully asked
the jury to come to the reasonable conclusion, on the
basis of the evidence presented, that the defendant was
guilty of the crimes charged. See, e.g., State v. Boyd,
89 Conn. App. 1, 42, 872 A.2d 477, cert. denied, 275
Conn. 921, 883 A.2d 1247 (2005), overruled in part on
other grounds by State v. Kemah, 289 Conn. 411, 432,
957 A.2d 852 (2008).
We further conclude that the second instance, which
occurred during rebuttal argument, also was not
improper when considered in context. See State v.
Jones, 135 Conn. App. 788, 802–805, 44 A.3d 848(reviewing claim of prosecutorial impropriety during
rebuttal argument as matter of law and holding that,
despite trial court’s conclusion that argument was
improper, argument was properly made in response to
defense counsel’s closing argument), cert. denied, 305
Conn. 925, 47 A.3d 885 (2012); see generally State v.
King, 289 Conn. 496, 510–12, 510 n.11, 958 A.2d 731(2008) (despite trial court’s sustaining of defendant’s
objection, prosecutor’s questions were not improper).
During the defense portion of closing argument, defense
counsel told the jury: ‘‘Let me just touch on Lisa Melillo
just for a second. She comes to testify. Two weeks ago
she’s told they need her testimony, and they want her
to explain about delayed disclosures and why it may
happen. So, she gives her opinion of why it may happen.
And not every case is the same. Guess what, I have
never talked to [the victim]; I don’t know anything about
this case. You know more than she does. You know
much more than she does. I’ve never talked to her,
never reviewed any records. I asked her this stuff you’re
telling us about, isn’t it true that it’s not a diagnostic
tool or it can’t be used diagnostically? In other words,
if this happens, it means sexual abuse takes place. She
was very, very clear on that. She goes absolutely. It’s
not a diagnostic tool.
‘‘Don’t be led to believe that because she says, hey,
there are reasons for delayed disclosure in some cases
you know that it’s a diagnostic tool; it’s not. In fact,
she said, look, I’m not coming here, you know, telling
you what’s credible and what’s not credible testimony.
She can’t; she never talked to the lady. She didn’t know
if she made, you know, prior disclosures that were at
odds with her signed sworn statements or prior disclo-
sures that were at odds with her trial court testimony,
which is under oath.
‘‘So, she gets called two weeks beforehand; she gets
paid. That’s her job. She has testified basically for the
state; nobody else. So, she has a specific role, and she
testifies for the state every time and has never testified
for the defense.’’
During rebuttal argument, the prosecutor addressed
defense counsel’s statements regarding Melillo: ‘‘Then
[the defense attorney] wants to minimize Ms. Melillo,
whose job it was to present you the general characteris-
tics as to the unusual behavior of sex assault victims.
Why did I provide her to you? Because as adults your
first inclination is, if anybody tried this with me, first
of all, I’d kick him in the you know where, or worse,
and I would say something immediately. Kids don’t
operate like that. It was important that you know that
from someone who understands it and does it for a
living and encounters it every day. It’s something that
is atypical to me, and I figured, if I’m the jury—maybe
it’s atypical to you. You don’t do this every day. He
made sure you knew that.
‘‘But he also said, not a diagnostic tool; we weren’t
talk[ing] about the specifics of this case. If I had her
stand here and say with specifics of this case, [defense
counsel] would have pulled his groin muscle jumping
out of the chair to object because she’s not allowed to
vouch for the credibility of any witness; no one is.
Credibility is yours and yours alone, ladies and gentle-
men. The determination of who is telling the truth here
and when they’re telling it is really up to you and really
only up to you.’’
The prosecutor continued, and the following colloquy
occurred a short time later: ‘‘But it’s my obligation to
present the case to you where I think it covers the
elements beyond a reasonable doubt. I said we need
Ms. Melillo, who I know to be an authority on the general
characteristics of behavior—
‘‘[Defense Counsel]: Objection.
‘‘The Court: All right. Sustained as to your personal—
it’s not relevant. She testified for you as an expert. I’ll
give you instructions on that. And remember, this is
argument, so it’s not evidence.
‘‘[The Prosecutor]: Fair enough. I apologize. Who is
someone who has expertise in the area. I presented her
to you to see if her expertise helped explain seemingly
unexplainable behavior on the part of this young lady.’’
We conclude that the prosecutor’s comment, taken
in context, was not improper. Defense counsel had
attempted to call into question the credibility and use-
fulness of the testimony of Melillo, the state’s expert
witness. During rebuttal, the prosecutor addressed the
argument of defense counsel and explained the purpose
of the expert testimony. Although the prosecutor may
have used a poor choice of words when he said, ‘‘who
I know to be an authority,’’ such a single lapse in
responding to the forceful closing argument of defense
counsel cannot be said to be improper. See generally
State v. Luster, supra, 279 Conn. 436 (‘‘if it is clear that
the prosecutor is arguing from the evidence presented
at trial, instead of giving improper unsworn testimony
with the suggestion of secret knowledge, his or her
occasional use of the first person does not constitute
misconduct’’).
Here, the prosecutor’s use of ‘‘who I know to be an
authority’’ was not an expression of personal opinion
or of insider knowledge, but, rather, was an attempt to
explain that the state’s expert had specialized knowl-
edge in the field of delayed disclosure and that her
testimony was useful in this case. See State v. Spigarolo,
210 Conn. 359, 380, 556 A.2d 112 (‘‘where defense coun-
sel has sought to impeach the credibility of a complain-
ing minor witness in a sexual abuse case, based on
inconsistency, incompleteness or recantation of the vic-
tim’s disclosures pertaining to the alleged incidents, the
state may offer expert testimony that seeks to demon-
strate or explain in general terms the behavioral charac-
teristics of child abuse victims in disclosing alleged
incidents’’), cert. denied, 493 U.S. 933, 110 S. Ct. 322,
107 L. Ed. 2d 312 (1989). Accordingly, we conclude that
the remark was not improper.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual assault 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.
2
The jury returned a verdict of not guilty on a charge of sexual assault
in the first degree in violation of § 53a-70 (a) (1).
3
During appellate oral argument, the defendant argued in part that the
trial court should have limited this evidence because three instances of
uncharged misconduct against the same victim was too much. He admitted,
however, that no such argument was raised before the trial court.
4
‘‘We note that § 4-5 of the Connecticut Code of Evidence was subse-
quently amended to conform [to] State v. DeJesus, supra, 288 Conn. 474.
This rule, as amended, provides: (a) General Rule. Evidence of other crimes,
wrongs or acts of a person is inadmissible to prove the bad character,
propensity, or criminal tendencies of that person except as provided in
subsection (b).
‘‘(b) When evidence of other sexual misconduct is admissible to prove
propensity. Evidence of other sexual misconduct is admissible in a criminal
case to establish that the defendant had a tendency or a propensity to engage
in aberrant and compulsive sexual misconduct if: (1) the case involves
aberrant and compulsive sexual misconduct; (2) the trial court finds that
the evidence is relevant to a charged offense in that the other sexual miscon-
duct is not too remote in time, was allegedly committed upon a person
stances to the aberrant and compulsive sexual misconduct at issue in the
case; and (3) the trial court finds that the probative value of the evidence
outweighs its prejudicial effect.
‘‘(c) When evidence of other crimes, wrongs or acts is admissible. Evidence
of other crimes, wrongs or acts of a person is admissible for purposes other
than those specified in subsection (a), such as to prove intent, identity,
malice, motive, common plan or scheme, absence of mistake or accident,
knowledge, a system of criminal activity, or an element of the crime, or to
corroborate crucial prosecution testimony.
‘‘(d) Specific instances of conduct when character in issue. In cases in
which character or a trait of character of a person in relation to a charge,
claim or defense is in issue, proof shall be made by evidence of specific
instances of the person’s conduct. Conn. Code Evid. § 4-5 (effective January
1, 2012), 73 Conn. L.J. No. 1, pp. 211PB-212PB (July 5, 2011).’’ (Internal
quotation marks omitted.) State v. George A., 308 Conn. 274, 294 n.21, 63
A.3d 918 (2013).
5
We are aware that in State v. Antonaras, 137 Conn. App. 703, 723–26,
49 A.3d 783, cert. denied, 307 Conn. 936, 56 A.3d 716 (2012), we agreed with
the defendant in that case that it was error for the trial court to instruct
the jury that it could consider uncharged sexual misconduct as evidence
of a common scheme or plan rather than as propensity evidence, as permitted
in DeJesus. Although we agreed that the instruction was given in error, we
concluded that it was harmless. Id. In the present case, the state moved for
the admission of the uncharged sexual misconduct evidence on the grounds
of intent and motive, and the court granted the motion on those grounds.
There is no claim that the court should have considered the admission of
the evidence only to establish the defendant’s propensity to engage in the
charged sexual misconduct.
6
During the victim’s trial testimony, she stated that the defendant had
never had vaginal sexual intercourse with her and that she had never told
anyone that the defendant had engaged in vaginal sexual intercourse with
her. During the testimony of the victim’s counselor, however, which took
place after the court ruled on the defendant’s motion to conduct an in
camera review of the victim’s psychological records, the defendant’s attorney
showed the counselor a report written by Detective Steven Young that stated
that the counselor had told him that the victim had reported to the counselor
that she had lost her virginity to the defendant while they were in Vermont.
The counselor, however, testified that she had no direct recollection of
saying that to Young and that she had not made a note of such a disclosure
in her file. Detective Young later testified that the counselor, in fact, had
disclosed this information to him and that he had taken notes. He also
testified that when the victim returned to the police station a few days after
he had received this information from the counselor, the victim was unable
to confirm the information.
7
Although the defendant asserts that this claim of instructional error is
of constitutional magnitude, we are not persuaded. Our Supreme Court has
recognized a very limited number of jury instruction claims as being of
constitutional magnitude. See State v. Walton, 227 Conn. 32, 64–65, 630 A.2d
990 (1993) (improper jury instructions regarding elements of crime or burden
of proof are of constitutional magnitude); see also State v. Hicks, 97 Conn.
App. 266, 270, 277, 903 A.2d 685 (deficient jury instructions regarding drawing
of no adverse inference from defendant’s not testifying is of constitutional
magnitude), cert. denied, 280 Conn. 930, 909 A.2d 958 (2006). We agree with
the state’s contention that the defendant’s claim of error in this case falls
outside of the constitutional realm. See generally State v. Luster, 279 Conn.
414, 421–22, 902 A.2d 636 (2006) (claimed instructional error regarding
consciousness of guilt not of constitutional dimension); State v. Walton,
supra, 65 (‘‘claimed instructional errors regarding general principles of credi-
bility of witnesses are not constitutional in nature’’); State v. Zamora, 62
Conn. App. 801, 805, 772 A.2d 701 (2001) (claimed instructional error regard-
ing out-of-court statements not constitutional in nature).
8
Although the defendant objected to the second comment (and the court
sustained the objection), he did not object to the first comment. A defen-
dant’s failure to object to an occurrence of ‘‘prosecutorial impropriety,
though relevant to our inquiry, is not fatal to review of his claims. . . . This
does not mean, however, that the absence of an objection at trial does
not play a significant role in the determination of whether the challenged
statements were, in fact, improper. . . . To the contrary, we continue to
adhere to the well established maxim that defense counsel’s failure to object
to the prosecutor’s argument when it was made suggests that defense coun-
sel did not believe that it was [improper] in light of the record of the case
at the time.’’ (Internal quotation marks omitted.) State v. Taft, 306 Conn.
749, 762, 51 A.3d 988 (2012).
9
The defendant then proceeds to analyze the Williams factors; State v.
Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987); in an attempt to demon-
strate how he was deprived of his due process right to a fair trial.