State v. Andres C. ( 2021 )

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STATE OF CONNECTICUT v. ANDRES C.*
(AC 43081)
Moll, Alexander and DiPentima, Js.**
Syllabus
Convicted of the crimes of sexual assault in the third degree and risk of
injury to a child, the defendant appealed to this court. The defendant’s
conviction stemmed from his sexual abuse of the minor victim, his niece.
Before trial, the court granted the state’s motion to allow the introduction
of uncharged misconduct evidence, specifically, evidence regarding the
defendant’s sexual abuse of the victim’s cousin, D. At trial, the victim
testified, inter alia, that she maintained certain journals, which related
to her abuse, and the court declined to allow the defendant access to
the journals. The prosecutors assigned the task of reviewing the journals
for exculpatory material, which were handwritten in Spanish, to a bilin-
gual investigator in their office. The court indicated that it would conduct
an in camera review of any materials that might be exculpatory, and
defense counsel did not challenge this procedure. Held:
1. The defendant could not prevail on his claim that the trial court improperly
admitted uncharged misconduct evidence.
a. This court declined to review the defendant’s claim that the trial court
erred in permitting the state to present uncharged misconduct evidence
regarding the sexual abuse of D to show his propensity for such acts,
because the court ultimately admitted this evidence for a limited purpose,
namely, as an explanation for the victim’s delayed disclosure of the abuse,
and not to establish the defendant’s propensity to commit such acts.
b. The trial court properly denied the defendant’s motion to strike the
testimony regarding the uncharged misconduct evidence after the prose-
cutors declined to call D as a witness: the evidence was admitted only
for the purpose of explaining the victim’s delay in disclosing her own
sexual abuse by the defendant, the evidence did not have only minimal
probative value as the victim testified that she delayed disclosing her
abuse after she learned of the defendant’s abuse of D and observed the
subsequent shunning of D and D’s mother by her family, and her testi-
mony was not cumulative of expert testimony presented on delayed
disclosure; moreover, contrary to the defendant’s claim, the trial judge,
as the finder of fact, was not prejudiced after hearing of the defendant’s
sexual abuse of D and was not unable to limit consideration of this
evidence to the sole purpose for which it had been admitted, the defen-
dant having failed to point to anything in the record to overcome the
presumption that the court, as the trier of fact, considered only properly
admitted evidence when it rendered its decision.
2. The defendant’s claim that his right to a fair trial was violated by prosecu-
torial impropriety was unavailing: although the prosecutor erred in her
consideration of what was necessary for uncharged misconduct to be
admitted into evidence, the defendant neither demonstrated the lack of
a good faith basis by the prosecutor nor showed that his right to a fair
trial was violated, the defendant failed to establish a lack of a good
faith basis with respect to the prosecutor’s attempt to admit the defen-
dant’s guilty plea relating to the case involving D.C. pursuant to North
Carolina v. Alford (400 U.S. 25), and the prosecutor’s efforts to admit
constancy testimony did not raise to the level of impropriety.
3. The trial court properly denied the defendant access to the victim’s jour-
nals.
a. The defendant’s claim that he was entitled to review the victim’s
journals because she had reviewed them prior to her testimony was
unavailing: the court considered the private nature of the journals, that
the victim reviewed only a few pages of the journals before testifying,
and that the state had been reviewing the journals for exculpatory mate-
rial, and, thus, its decision was neither so arbitrary as to vitiate logic
nor based on improper or irrelevant factors.
b. The defendant waived the claim that he was entitled to the contents
of the victim’s journals because they constituted a statement pursuant
to the rules of practice (§§ 40-13A and 40-15 (1)): defense counsel agreed
to the procedure to be used in the review of, and the potential disclosure
of, the contents of the journals, specifically, the prosecutors’ review of
the journals for exculpatory material and to the court’s in camera review
of any exculpatory material, and, having agreed to this procedure before
the trial court, the defense cannot now challenge that procedure.
4. The defendant could not prevail on his unpreserved claim that his rights
under Brady v. Maryland (373 U.S. 83) were violated, which was based
on his claim that the prosecutors were required to personally review
the victim’s journals for exculpatory information and that this task could
not have been delegated to a nonlawyer member of their office: although,
ultimately, the obligation for complying with Brady rests with the prose-
cutor, it does not follow that the personal review of items such as the
victim’s journals by a prosecutor is constitutionally required.
Argued March 1—officially released November 30, 2021
Procedural History
Substitute information charging the defendant with
the crimes of sexual assault in the third degree, sexual
assault in the fourth degree, and risk of injury to a child,
brought to the Superior Court in the judicial district of
New Haven and tried to the court, Alander, J.; judgment
of guilty of sexual assault in the third degree and risk
of injury to a child, from which the defendant appealed
to this court. Affirmed.
Richard Emanuel, for the appellant (defendant).
Matthew A. Weiner, assistant state’s attorney, with
whom, on the brief, were Patrick J. Griffin, state’s
attorney, and Mary A. SanAngelo and Brian K. Sibley,
Sr., senior assistant state’s attorneys, for the appellee
(state).
Opinion
ALEXANDER, J. The defendant, Andres C., appeals
from the judgment of conviction, rendered after a court
trial, of sexual assault in the third degree in violation
of General Statutes § 53a-72a (a) (1) and risk of injury
to a child in violation of General Statutes § 53-21 (a)
(2). On appeal, the defendant claims that (1) the court
improperly admitted uncharged misconduct evidence,
(2) his right to a fair trial was violated by prosecutorial
impropriety, (3) the court improperly denied him access
to the victim’s journals, and (4) his rights under Brady
v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed.
2d 215 (1983), were violated.1 We disagree and, accord-
ingly, affirm the judgment of the trial court.
The following facts, as the court reasonably could
have found, and procedural history are relevant to the
resolution of this appeal. When she was ten years old,
the victim, along with her mother and siblings, moved
into her grandmother’s home. Shortly thereafter, the
defendant, the victim’s uncle, moved in. At some point,
during the time that the victim and the defendant were
living at the grandmother’s house, the defendant came
out of the shower dressed only in a towel and took the
victim into his bedroom. The defendant removed his
towel, lay upright on the bed, and had the victim apply
lotion to his penis and masturbate him. After the defen-
dant ejaculated, he directed the victim to wash her
hands. This type of abuse occurred more than ten times
over the next two years while the victim lived at her
grandmother’s house and continued after she had moved
to another house.
The victim described other instances of inappropriate
behavior by the defendant. On one occasion, the defen-
dant, while dressed only in boxer shorts, went into the
victim’s bedroom, got under the covers with her, and
rubbed the victim’s stomach and legs under her shirt
and pajama bottoms. After the victim had moved to
another house, she would, on occasion, sleep over at her
grandmother’s home. During several of these occasions,
the defendant got into bed with the victim and rubbed
himself against her so that she felt his penis against
her back.
A few years later, the then sixteen year old victim
began speaking with a therapist, and she disclosed the
sexual abuse during her first session. At a therapy ses-
sion attended by her mother and brother, the victim
disclosed the sexual abuse by the defendant. Thereafter,
on October 28, 2015, the victim reported the defendant’s
conduct to the police. The defendant was arrested in
March, 2016.
In an information filed on February 7, 2019, the state
charged the defendant with sexual assault in the third
degree, sexual assault in the fourth degree, and risk of
injury to a child. After trial, the court, Alander, J., found
the defendant guilty of sexual assault in the third degree
and risk of injury to a child and not guilty of sexual
assault in the fourth degree. The court imposed a total
effective sentence of twenty years of incarceration, exe-
cution suspended after twelve years, and fifteen years
of probation. This appeal followed.
I
The defendant first claims that the court improperly
admitted uncharged misconduct evidence that he also
had sexually abused the victim’s cousin, D. The defen-
dant has presented two distinct arguments with respect
to this claim. First, he argues that the court erred in
its preliminary decision to permit the state to present
evidence regarding D to show the defendant’s propen-
sity for such acts. Second, he contends that the court
improperly denied his motion to strike all of the testi-
mony regarding this uncharged misconduct after the
prosecutors did not call D as a witness. We are not
persuaded.
The following additional facts are necessary for our
discussion. Approximately one week before the trial
was to begin, the state filed a motion to allow the intro-
duction of uncharged misconduct evidence pursuant to
§ 4-5 (b) of the Connecticut Code of Evidence.2 In this
motion, the state indicated that this uncharged miscon-
duct evidence consisted of the victim’s testimony that,
in 2009, she learned that the defendant had sexually
abused D over a period of time. The state represented
that the victim would testify as to the reactions of her
family with respect to D’s disclosure and how that
impacted her decision to report her own abuse. The
state also indicated that D would testify as to the details
of the sexual abuse. According to the state’s motion,
‘‘[s]aid evidence will be offered to prove intent, identity,
absence of mistake or accident, a system of criminal
activity or to corroborate crucial prosecution testi-
mony.’’ On the first day of the trial, the defendant filed
an objection to the state’s motion to present uncharged
misconduct evidence.
Prior to the start of evidence, the court heard argu-
ment regarding the uncharged misconduct evidence.
The prosecutor represented that the victim was between
the ages of eleven and fourteen years old during the
alleged sexual abuse, and that D had been between the
ages of ten and thirteen years old when the defendant
had sexually abused her. The prosecutor indicated that
the victim and D are related to each other and to the
defendant, and that the sexual abuse occurred in a
similar time frame, and, in part, at the same residence.
The prosecutor acknowledged that, contrary to the
facts of the present case, the sexual abuse of D involved
digital and penile penetration. After hearing from
defense counsel, the court granted the state’s motion
to present the uncharged misconduct evidence regard-
ing the defendant’s sexual abuse of D.
The victim testified that, at some point, she had
learned that the defendant had sexually abused D. The
court indicated that, during a conversation in chambers,
the prosecutor had indicated that this aspect of the
victim’s testimony was not being offered for the truth
of the matter asserted, namely, that the defendant had
sexually abused D, but, rather, ‘‘just to show the effect
on [the victim] about her receiving information concern-
ing those incidents to then show why she acted as
she did.’’ After hearing from defense counsel, the court
stated: ‘‘So, I will allow [the victim] to discuss what she
heard about those incidents and relate what effect it
had on her. It is my understanding it is the state’s posi-
tion that that led to her reluctance to disclose and that
is why it is relevant.’’
The victim testified that she learned that D had made
an allegation of abuse against the defendant to the
police. The victim’s mother, the victim’s grandmother,
and the rest of the family ‘‘sided’’ with the defendant
and ostracized D and her mother, N. When asked how
the family’s reaction made her feel while her own abuse
by the defendant was ongoing, the victim responded:
‘‘It made me feel like I was surrounded by adults who
did not want to believe [D], who didn’t believe a kid,
who did not want—who would prefer to cover up and
side with [the defendant], and I saw them bash her and
criticize, and it felt in that moment safer for me to stay
quiet and it felt safer to be with everyone else on his
side and pretend like nothing happened and cover up
my abuse, cover up her abuse.’’ The victim subsequently
stated that she did not disclose her own sexual abuse
because no one in her family believed her cousin.
The next day, the victim’s mother testified. The prose-
cutor asked her if, in 2011, she had learned that the
defendant had sexually abused D. After an objection
based on hearsay, the prosecutor indicated that this
evidence was not being offered for its truth. The court
ruled that the evidence was admissible for its effect on
the victim’s mother and her subsequent reaction. The
victim’s mother stated that, following the allegations of
sexual abuse made by D against the defendant, the rest
of the family ‘‘shunned’’ D and N.
The state subsequently sought to have a certified
copy of the defendant’s conviction for sexually abusing
D admitted into evidence. The state noted that this
document was not offered to establish the facts regard-
ing the sexual abuse of D, or any admission by the
defendant, but rather to ‘‘help show the time frame of
the arrest and conviction on [D’s] matter because it
corroborates crucial state’s testimony as far as what
was happening with the family and why [the victim] in
[this] case delayed in disclosing her sexual abuse by
this defendant.’’ Defense counsel objected and noted
that, because the defendant had pleaded guilty pursuant
to the Alford doctrine,3 this evidence was inadmissible.
The court cited to § 4-8A of the Connecticut Code of
Evidence4 and sustained defense counsel’s objection. At
this point, the state rested.
Defense counsel immediately moved to strike all ref-
erences to the uncharged misconduct evidence on the
basis that D did not testify during the state’s presenta-
tion of evidence. Defense counsel argued that the defen-
dant’s fundamental right to challenge and cross-exam-
ine D had been violated and that the appropriate remedy
was to strike all references to the defendant’s sexual
abuse of D. After hearing from the prosecutor, the court
noted that its initial ruling permitting the state to pres-
ent evidence regarding the defendant’s sexual abuse of
D to show propensity was based on the expectation
that D would testify.
After hearing further argument, including the state’s
request to open the evidence, the court ruled that the
evidence regarding the defendant’s abuse of D was not
admissible to show that those acts had occurred, or
that the defendant had a propensity to engage in such
behavior, but was admissible ‘‘to show that [the victim]
was aware of those claims and that impacted her deci-
sion to not disclose her own sexual—alleged sexual
abuse because of the reaction within the family.’’ The
court declined to strike the testimony regarding the
defendant’s abuse of D but limited its purpose to show
why the victim had delayed disclosing her own sexual
abuse. The court further noted that the probative value
of this evidence outweighed any prejudicial effect.
A
The defendant first argues that the court erred in
its preliminary decision permitting the state to present
evidence pertaining to the sexual abuse of D to show
his propensity for such actions. The defendant contends
that the court abused its discretion in admitting this
evidence because the state failed to establish that this
uncharged misconduct was similar to the offense
charged or otherwise similar in nature to the circum-
stances of the aberrant and compulsive sexual miscon-
duct at issue in the present case. See, e.g., Conn. Code
Evid. § 4-5 (b); State v. DeJesus, 288 Conn. 418, 476–77,
935 A.2d 45 (2008). The state counters, inter alia, that
we should not address this argument because the court
superseded its ruling admitting the uncharged miscon-
duct evidence for the purpose of propensity, and, there-
fore, the defendant cannot demonstrate prejudice. We
agree with the state.
As we noted, following the state’s offer of proof,
the court initially admitted the uncharged misconduct
evidence at issue for the purpose of demonstrating the
defendant’s propensity to engage in such conduct. The
state failed, however, to introduce into evidence suffi-
cient proof of the defendant’s prior misconduct as to
D. See, e.g., State v. Holly, 106 Conn. App. 227, 235–36,
941 A.2d 372, cert. denied, 287 Conn. 903, 947 A.2d 334(2008). As a result, the court admitted this uncharged
misconduct evidence for a limited purpose, namely, as
an explanation for the victim’s delayed disclosure, and
not for the purpose of establishing that D actually had
been sexually abused by the defendant or to establish
his propensity to commit such acts of sexual abuse.
In support of its argument that we should not review
this claim, the state directs us to State v. Sanders, 86
Conn. App. 757, 862 A.2d 857 (2005). In that case, the
state filed motions in limine to restrict the cross-exami-
nation of a witness. Id., 763. ‘‘[T]he court granted the
motions, precluding any reference to prior convictions
or pending criminal charges and prohibiting any refer-
ence to [the witness’] involvement in drug trafficking
and gang related activity.’’ Id. The trial court subse-
quently granted the defendant’s motion for reconsidera-
tion and permitted questions regarding past felony con-
victions and pending charges against the witness. Id. On
appeal, the defendant claimed that the court improperly
had restricted his cross-examination of this witness.
Id., 762. We declined to review this claim because the
defendant was not prevented from questioning the wit-
ness about his past and pending charges and, therefore,
was not aggrieved by the court’s ruling. Id., 764. Like-
wise, in the present case, we need not review the defen-
dant’s claim that the court abused its discretion in its
initial ruling permitting the state to present propensity
evidence because the court ultimately ruled that it was
inadmissible for that purpose.
B
The defendant additionally argues that the court
improperly denied his motion to strike all of the testi-
mony regarding this uncharged misconduct after the
state did not call D as a witness. Specifically, he con-
tends that the prejudicial effect of this evidence out-
weighed its ‘‘minimal’’ probative value and that this
inadmissible evidence affected the court’s factual find-
ings. The state counters, inter alia, that the court prop-
erly (1) admitted the evidence pertaining to D’s abuse
for a limited purpose and (2) denied the defendant’s
motion to strike. We agree with the state.
We begin with the relevant legal principles. ‘‘[T]he
trial court has broad discretion in ruling on the admissi-
bility . . . of evidence. . . . The trial court’s ruling on
evidentiary matters will be overturned only upon a
showing of a clear abuse of the court’s discretion. . . .
We will make every reasonable presumption in favor
of upholding the trial court’s ruling, and only upset it
for a manifest abuse of discretion.’’ (Internal quotation
marks omitted.) State v. Sampson, 174 Conn. App. 624,
636, 166 A.3d 1, cert. denied, 327 Conn. 920, 171 A.3d
57 (2017); see also State v. Courtney G., 339 Conn.
328, 337, A.3d (2021) (trial court given broad
discretion in determining relevancy of evidence and
balancing probative value against prejudicial effect).
The evidence regarding the defendant’s sexual abuse
of D was properly admitted for the sole purpose of
explaining the victim’s delay in disclosing her own sex-
ual abuse by the defendant. The defendant does not
dispute that the evidence was relevant for this purpose.
Thus, we must determine whether the prejudicial
impact of this otherwise admissible evidence out-
weighed its probative value. See Conn. Code Evid. § 4-
3. ‘‘Although relevant, evidence may be excluded by the
trial court if the court determines that the prejudicial
effect of the evidence outweighs its probative value.
. . . Of course, [a]ll adverse evidence is damaging to
one’s case, but it is inadmissible only if it creates undue
prejudice so that it threatens an injustice were it to be
admitted. . . . The test for determining whether evi-
dence is unduly prejudicial is not whether it is damaging
to the defendant but whether it will improperly arouse
the emotions of the [fact finder]. . . . The trial court
. . . must determine whether the adverse impact of the
challenged evidence outweighs its probative value. . . .
Finally, [t]he trial court’s discretionary determination
that the probative value of evidence is not outweighed
by its prejudicial effect will not be disturbed on appeal
unless a clear abuse of discretion is shown. . . .
[B]ecause of the difficulties inherent in this balancing
process . . . every reasonable presumption should be
given in favor of the trial court’s ruling. . . . Reversal
is required only [when] an abuse of discretion is mani-
fest or [when] injustice appears to have been done.’’
(Internal quotation marks omitted.) State v. Holmgren,
197 Conn. App. 203, 211–12, 231 A.3d 379 (2020); State
v. Rosa, 104 Conn. App. 374, 378, 933 A.2d 731 (2007),
cert. denied, 286 Conn. 906, 944 A.2d 980 (2008).
‘‘Our Supreme Court has identified four factors rele-
vant to determining whether the admission of otherwise
probative evidence is unduly prejudicial. These are: (1)
where the facts offered may unduly arouse the [fact
finder’s] emotions, hostility or sympathy, (2) where the
proof and answering evidence it provokes may create
a side issue that will unduly distract the [fact finder]
from the main issues, (3) where the evidence offered
and the counterproof will consume an undue amount of
time, and (4) where the defendant, having no reasonable
ground to anticipate the evidence, is unfairly surprised
and unprepared to meet it.’’ (Internal quotation marks
omitted.) State v. Joseph V., 196 Conn. App. 712, 761,
230 A.3d 644, cert. granted, 335 Conn. 945, 238 A.3d
17 (2020).
The defendant first contends that the uncharged mis-
conduct evidence pertaining to D had only minimal
probative value, given that the state had presented testi-
mony from an expert5 on the topic of delayed disclosure.
The expert, however, had no knowledge of the facts of
this case. It was the victim herself who testified that
she had delayed disclosing her abuse after she learned
of the defendant’s abuse of D and observed the subse-
quent ‘‘shunning’’ of D and N by the rest of her family.
The evidence of D’s abuse by the defendant was not
cumulative of the expert testimony, and, therefore, we
disagree that it had only ‘‘minimal’’ probative value.
The defendant’s second contention is that the trial
judge, as the finder of fact, was prejudiced after hearing
of the defendant’s sexual abuse of D. The defendant
postulates that the court was unable to limit its consid-
eration of this evidence to the sole purpose for which
it had been admitted. Absent from the defendant’s brief,
however, is any reference to evidence from the proceed-
ings to support this assertion.
Our Supreme Court recently has stated that, ‘‘[o]n
appeal from a bench trial, there is a presumption that
the court, acting as the trier of fact, considered only
properly admitted evidence when it rendered its deci-
sion.’’ (Internal quotation marks omitted.) State v. Roy
D. L., Conn. , , A.3d (2021); see also
State v. Ouellette, 190 Conn. 84, 92, 459 A.2d 1005 (1983)
(‘‘[i]n trials to the court, where admissible evidence
encompasses an improper as well as a proper purpose,
it is presumed that the court used it only for an admissi-
ble purpose’’). The defendant has failed to point us
to anything in the record that would overcome this
presumption.6 We conclude, therefore, that this argu-
ment must fail.
II
The defendant next claims that his right to a fair trial
was violated by prosecutorial impropriety. The defen-
dant argues that the prosecutors7 committed impropri-
ety by their efforts (1) to introduce evidence of the
sexual abuse of D to show his propensity to engage in
such behavior and then failing to call D as a witness,
(2) to introduce evidence of his Alford plea from the
sexual abuse case involving D, and (3) to introduce
constancy of accusation evidence that did not meet
the standard for admission and to comment on this
evidence during closing argument. The state counters
that there was no prosecutorial impropriety and that
the defendant failed to establish a due process violation,
if any prosecutorial impropriety did exist. We conclude
that the defendant has not demonstrated any impropri-
ety in this case.
We begin with the relevant legal principles. ‘‘In ana-
lyzing claims of prosecutorial impropriety, we engage
in a two step process. . . . First, we must determine
whether any impropriety in fact occurred; second, we
must examine whether that impropriety, or the cumula-
tive effect of multiple improprieties, deprived the defen-
dant of his due process right to a fair trial. . . . To
determine whether the defendant was deprived of his
due process right to a fair trial, we must determine
whether the sum total of [the prosecutor’s] improprie-
ties rendered the defendant’s [trial] fundamentally
unfair . . . . The question of whether the defendant
has been prejudiced by prosecutorial [impropriety],
therefore, depends on whether there is a reasonable
likelihood that the . . . verdict would have been differ-
ent absent the sum total of the improprieties. . . .
Accordingly, it is not the prosecutorial improprieties
themselves but, rather, the nature and extent of the
prejudice resulting therefrom that determines whether
a defendant is entitled to a new trial. . . .
‘‘To determine whether any improper conduct by the
[prosecutor] violated the defendant’s fair trial rights is
predicated on the factors set forth in State v. Williams
[204 Conn. 523, 540, 529 A.2d 653 (1987)] . . . .’’ (Inter-
nal quotation marks omitted.) State v. Franklin, 175
Conn. App. 22, 46–47, 166 A.3d 24, cert. denied, 327
Conn. 961, 172 A.3d 801 (2017); see also State v. Albert
D., 196 Conn. App. 155, 162–63, 229 A.3d 1176, cert.
denied, 335 Conn. 913, 229 A.3d 118 (2020).
The defendant’s claims of prosecutorial impropriety
originate with the prosecutors’ efforts to have certain
testimony or documents admitted into evidence. First,
the prosecutors sought to have testimony regarding
uncharged misconduct, namely, the defendant’s sexual
abuse of D, admitted as propensity evidence, but did
not call D as a witness. The defendant argues that,
whether intentional or not, the prosecutors essentially
made a misleading representation to the court.
Second, the prosecutors attempted to admit a copy
of the defendant’s Alford plea from the case involving
D to corroborate portions of the testimony regarding
the defendant’s sexual abuse of D, the family’s reaction,
and the time frame of those events. The defendant
argues that the prosecutors knew, or reasonably should
have known, that § 4-8A (a) (2) of the Connecticut Code
of Evidence prohibits the admission of such evidence
and that ‘‘[t]he only conceivable purpose for offering
such irrelevant evidence—at a court trial where the
judge sees and hears the inadmissible evidence before
‘excluding’ it—was to try to prejudice the fact finder
. . . .’’
Third, the prosecutors presented numerous instances
of constancy of accusation testimony from the victim’s
friends, brother, and mother, and commented on this
evidence during the prosecutors’ rebuttal argument.
The defendant argues that there was no ‘‘reciprocity’’
between the victim’s testimony and that of the con-
stancy witnesses. (Internal quotation marks omitted.)
Therefore, the defendant argues that the constancy tes-
timony from the friends, brother, and mother of the
victim did not meet the standard for admissibility of
constancy testimony, and, thus, should not have been
admitted into evidence or commented on during closing
argument by the prosecutors.
Impropriety may result from a prosecutor’s efforts
to introduce certain evidence. For example, in State v.
Angel T., 292 Conn. 262, 264, 973 A.2d 1207 (2009), our
Supreme Court considered whether the prosecutor had
committed an impropriety by introducing evidence of,
and commenting on, the fact that the defendant, while
represented by counsel, had failed to meet with the
police during their investigation. ‘‘We agree with those
jurisdictions that have concluded that a prosecutor vio-
lates the due process clause of the fourteenth amend-
ment when he or she elicits, and argues about, evidence
tending to suggest a criminal defendant’s contact with
an attorney prior to his arrest. In our view, this prohibi-
tion necessarily is founded in the fourteenth amend-
ment due process assurances of a fair trial under which
proscriptions on prosecutorial impropriety are rooted
generally.’’ Id., 281–82; see also State v. Salamon, 287
Conn. 509, 559–60, 949 A.2d 1092 (2007) (rejecting claim
of prosecutorial impropriety due to excessive leading
questions because majority of such questions fell within
exceptions to general rule prohibiting them on direct
or redirect examination and defendant failed to provide
any reason why remainder of questions were them-
selves so prejudicial or harmful as to render trial unfair).
Our decision in State v. Marrero, 198 Conn. App. 90,
234 A.3d 1, cert. granted, 335 Conn. 961, 239 A.3d 1214(2020), is particularly instructive. In that case, the defen-
dant claimed, inter alia, that the prosecutor committed
an impropriety by asking an excessive amount of lead-
ing questions during his direct examination of the vic-
tim. Id., 97–98. In addressing this issue, we looked to
our Supreme Court’s decision in State v. Salamon,
supra, 287 Conn. 509. State v. Marrero, supra, 99–100.
‘‘The upshot of Salamon is that to establish the impro-
priety prong of a claim of prosecutorial impropriety
based on a prosecutor’s allegedly excessive use of lead-
ing questions on direct examination of the state’s wit-
nesses, the defendant must prove not only that such
questioning was improper in the evidentiary sense but
that it was improper in the constitutional sense as well
because it threatened his due process right to a fair
trial.’’ Id., 101.
In considering whether the use of excessive leading
questions threatened to violate the defendant’s constitu-
tional right to a fair trial, we set forth the following
guidance: ‘‘Our case law, however, and that of our sister
jurisdictions, furnish several useful examples of such
circumstances, including, but not limited to, repeatedly
asking improper leading questions after defense objec-
tions to those questions have been sustained, asking
questions stating facts that the prosecutor has no good
faith basis to believe are true, asking questions refer-
encing prejudicial material that the prosecutor has no
good faith basis to believe is relevant and otherwise
admissible at trial . . . .’’ (Emphasis added; footnotes
omitted.) Id., 101–102.
In the present case, the defendant does not contend
that the prosecutors asked an excessive amount of lead-
ing questions but, rather, maintains that their efforts
regarding the introduction of uncharged misconduct
evidence and the defendant’s Alford plea amounted to
prosecutorial impropriety. He further asserts that the
prosecutors misrepresented information to the court
with respect to the former and lacked any basis to offer
the latter and that, therefore, the prosecutors lacked a
good faith basis with respect to these evidentiary mat-
ters. We disagree.
With respect to the uncharged misconduct evidence,
in response to the defendant’s motion to strike such
evidence after the state rested without calling D as a
witness, the prosecutor argued that the evidence of the
defendant’s sexual abuse of D was admissible for the
purpose of demonstrating the defendant’s propensity
for such unlawful conduct and was established through
the testimony of the victim, her brother, and her mother.
The prosecutor further indicated that, with the permis-
sion of the court, she could have D testify without delay,
despite having rested. Although the prosecutor erred in
her consideration of what was necessary for uncharged
misconduct to be admitted into evidence, the defendant
has neither demonstrated the lack of a good faith basis
by the prosecutor, nor shown that his right to a fair
trial was threatened.
With respect to the prosecutor’s attempt to have the
defendant’s Alford plea admitted into evidence, we
again note that the prosecutor presented a good faith
basis for admitting the plea offer. The prosecutor argued
that, despite § 4-8A of the Connecticut Code of Evi-
dence, the defendant’s Alford plea was admissible to
corroborate the testimony of the state’s witnesses. The
court sustained the objection of defense counsel and
did not admit this evidence, and the defendant on appeal
has failed to establish a lack of a good faith basis on
the part of the prosecutor or to show that his right to
a fair trial was threatened.
Finally, regarding the claimed lack of reciprocity
between the victim’s testimony and that of the con-
stancy witnesses, we conclude that this argument is
without merit. The defendant failed to object to nearly
all of the constancy testimony and, furthermore, he has
not persuaded us that the prosecutor’s efforts to have
this testimony admitted into evidence rose to the level
of impropriety. Moreover, as the state properly points
out in its brief, once this constancy evidence was admit-
ted into evidence, the prosecutors could comment on
it during closing argument. ‘‘Our Supreme Court has
held that ‘‘[a]rguing on the basis of evidence explicitly
admitted . . . cannot constitute prosecutorial [impro-
priety].’’ (Internal quotation marks omitted.) State v.
Devito, 159 Conn. App. 560, 575, 124 A.3d 14, cert.
denied, 319 Conn. 947, 125 A.3d 1012 (2015). Accord-
ingly, we conclude that the defendant has failed to
establish prosecutorial impropriety.
III
The defendant next claims that the court improperly
denied him access to the journals of the victim. Specifi-
cally, he argues that he was entitled to the contents of
these journals because the victim had reviewed them
prior to her testimony and they constituted a statement
pursuant to Practice Book §§ 40-13A8 and 40-15 (1).9
The state counters that (1) the court did not abuse its
discretion in determining that the journals did not need
to be produced for inspection following the victim’s
review prior to testifying pursuant to § 6-9 of the Con-
necticut Code of Evidence and (2) the defendant’s claim
pursuant to Practice Book §§ 40-13A and 40-15 (1) was
waived. We agree with the state.
The following additional facts are necessary for the
resolution of this claim. The victim testified on the first
day of trial, February 13, 2019. During her testimony,
the victim stated that the first person she had told about
the sexual abuse was Milagros Vizueta, a therapist in
North Branford.10 During these sessions, Vizueta occa-
sionally took notes and would write down things for
the victim to ‘‘work on . . . .’’ During redirect examina-
tion, the prosecutor inquired whether the victim ever
had seen her records from the therapy with Vizueta.
The victim responded: ‘‘I have my journals. . . . I don’t
have—I don’t know her records, but I have my jour-
nals.’’11 Upon further inquiry, the victim stated: ‘‘For the
journals, [Vizueta] would have me write a lot about
either my relationship to [the defendant], with [the
defendant], how the abuse happened, I would reflect a
lot on how it made me feel, how I was missing, why I
didn’t want to talk. Sometimes in the journal we’d write
about—like if I was having family fights, so my journals
are the abuse that I lived with him, but also family fights
with my siblings and my mom.’’ The victim also stated
that the journals were her ‘‘words through therapy.’’
On recross-examination, defense counsel inquired
whether the victim had reviewed her journals prior to
her testimony. The victim responded that she had
looked at a ‘‘few pages’’ in one of her journals. The
following colloquy between the victim and defense
counsel then occurred:
‘‘Q. Okay. Were those—and the—the journals that
you have, are those your notes that [you] wrote at the
time things were happening?
‘‘A. No, it was while I was in therapy.
‘‘Q. Okay. But it was part of the therapy process about
what you spoke to the doctor about, what she told you
and what happened to you, right?
‘‘A. Yes.
‘‘Q. And it would be much closer in time to the events
that we’re talking about; fair to say?
‘‘A. When I was journaling, closer to the abuse, yes.’’
‘‘Q. Would—would those be the best record you have
of what happened? [The court overruled an objection
by the state.]
‘‘A. . . . Yes.
‘‘Q. Okay. And you still have those journals?
‘‘A. Yes.’’
At this point, defense counsel requested an in camera
review of the victim’s journals. The prosecutor
objected, arguing that the journals did not constitute
medical records, but rather were akin to a diary. The
court inquired whether the journals were privileged
documents, by statute or common law. The prosecutor
then requested time to research the issue. Defense
counsel suggested that the court should review the jour-
nals for exculpatory material. The court responded that
the obligation to review the journals for exculpatory
material rested with the prosecutors and that, if there
was a claim of privilege, it would conduct an in camera
review. Defense counsel responded: ‘‘I am asking for
it as discovery; however, I was trying to be as respectful
as I could be to the complainant.’’ The court then sug-
gested a further discussion of this issue in chambers
and mentioned the possibility of recalling the victim as
a witness, if necessary.
The next day, February 14, 2019, the court summa-
rized the discussions that had occurred in chambers:
‘‘I have determined that [the victim’s] journals should
be reviewed by the state to determine, what, if anything
in those journals [comprised of three notebooks totaling
approximately 200 pages] concern—comprise state-
ments by [the victim] concerning the incidents in ques-
tions here, and any exculpatory material. That upon
that review they should disclose to defense counsel
any such material, specifically statements made by [the
victim] in her journals concerning the sexual assault
allegations here or any exculpatory material, and if
there is anything the state is uncertain as to whether
it is exculpatory [the prosecutors] can provide those
portions of the journals to me and I will review them
in camera to determine whether they should be dis-
closed to defense counsel.
‘‘It is my understanding that the state has talked to
[the victim]. She has agreed to provide the journals to
them, they will be provided to the state sometime this
afternoon, and the state—but apparently the journals
are in Spanish so the state needs the assistance of
someone on their staff to interpret those journals so
that they can fulfill their obligation as I’ve outlined
them.’’ The prosecutors and defense counsel agreed
with the court’s summary, and neither side raised any
objection.
The next day, the court placed the following on the
record: ‘‘It is my order that the state review those jour-
nals to determine if there is any exculpatory information
with respect to those journals that need to be disclosed
to the defendant, and that includes any inconsistent
statements and any statements regarding the therapy
method used that may have fostered or—instructed her
to use her imagination or speculate or embellish as to
what happened but, basically, the . . . state needs to
review those journals under its Brady obligations and—
turn over to the defendant anything that is exculpa-
tory.’’
The court then confirmed that defense counsel had
argued that at least some portions of the journals were
subject to disclosure because the victim had reviewed
them prior to her testimony. The prosecutor countered
that, aside from any Brady material, defense counsel
was not entitled to review the victim’s private journals.
The prosecutor further represented that her investiga-
tor had started the process of reviewing the 200 pages,
which were handwritten in Spanish, and, after several
hours of review, had not discovered any exculpatory
material. The prosecutor also assured the court that
she had given the investigator ‘‘very, very clear instruc-
tions on what is exculpatory and what is not. I sat in
an office directly next to her, so if she had any questions
at all she came to me, and there is nothing exculpatory
or inconsistent so far at all . . . .’’
The court then considered the defendant’s claim that
he was entitled to the journals because the victim had
used them to refresh her memory prior to her testimony.
After reading § 6-9 of the Connecticut Code of Evidence,
the court stated: ‘‘In light of the fact that [the victim]
testified that she only used a few pages of journals that
consisted of hundred—at least, apparently, a couple
hundred pages, and the fact that the state would be
reviewing all the journals with the obligation to turn
over any exculpatory evidence to the defendant, I am
not going to order that the entire journals be turned
over to the defense for examination. Also, in light of the
private nature of those journals.’’ The court indicated
it would make the journals a court exhibit, and the
parties noted their agreement that a translation was not
necessary at that point.
On the next day of trial, February 25, 2019, the prose-
cutor indicated that the investigator had completed the
review of the victim’s journals.12 Pursuant to General
Statutes § 54-86c (b),13 the prosecutors submitted, in a
sealed envelope, four pages from the journals for review
by a court for a determination of whether they con-
tained exculpatory material. In their view, the contents
of these four pages were protected by General Statutes
§ 54-86f,14 but, ‘‘in the abundance [of] caution,’’ sought
a judicial determination as to whether these items should
be disclosed to the defense.
Later that day, the court indicated that it had reviewed
the four pages from the journals submitted by the prose-
cution and determined that one page should be dis-
closed to the defense. Specifically, the court stated:
‘‘One of the material issues in this case is the—is [the
victim’s] claim that she delayed disclosure of the alleged
assaults by the defendant because, when [D] reported
such assaults, the family rallied behind the defendant
and she felt that there was no one she could report this
assault to and be supported. . . . There is an incident
[here] where she disclosed a claim of sexual abuse to
her mother, which could be interpreted as the mother
then supporting her claim. So, I think it is material and
exculpatory so I will order it disclosed to the defen-
dant.’’
On February 26, 2019, the court granted the defen-
dant’s motion to recall the victim as a witness. During
redirect examination by the prosecutor, the victim
explained that, following a prompt from Vizueta, she
wrote a passage in her journal about what ‘‘an environ-
ment in which speaking about abuse should have looked
like, instead of what I grew up in.’’ Thus, the statements
in her journal in which the victim wrote that she had
disclosed a sexual assault by a different family member
to her mother was hypothetical in nature and part of
a therapy exercise, and not based on actual events.
A
The defendant first argues that he was entitled to
review the contents of the journals because the victim
had reviewed them prior to her testimony. Specifically,
he contends that the court abused its discretion in not
requiring the disclosure of the entirety of the journals
on this basis. We disagree.
Our starting point is § 6-9 (b) of the Connecticut Code
of Evidence, which provides in relevant part: ‘‘If a wit-
ness, before testifying, uses an object or writing to
refresh the witness’ memory for the purpose of testi-
fying, the object or writing need not be produced for
inspection unless the court, in its discretion, so orders.
. . .’’ The official commentary to this subsection states
that § 6-9 (b) ‘‘establishes a presumption against pro-
duction of the object or writing for inspection in this
situation . . . .’’ We review the trial court’s decision
on whether to order production of such an object or
writing for an abuse of discretion. See State v. Cosgrove,
181 Conn. 562, 588–89, 436 A.2d 33 (1980); State v.
Watson, 165 Conn. 577, 593, 345 A.2d 532 (1973), cert.
denied, 416 U.S. 960, 94 S. Ct. 1977, 40 L. Ed. 2d 311(1974). ‘‘In reviewing a claim of abuse of discretion, we
have stated that [d]iscretion means a legal discretion,
to be exercised in conformity with the spirit of the law
and in a manner to subserve and not to impede or defeat
the ends of substantial justice. . . . In general, abuse
of discretion exists when a court could have chosen
different alternatives but has decided the matter so
arbitrarily as to vitiate logic, or has decided it based
on improper or irrelevant factors. . . . Therefore, [i]n
those cases in which an abuse of discretion is manifest
or where injustice appears to have been done, reversal
is required.’’ (Internal quotation marks omitted.) State
v. Fortin, 196 Conn. App. 805, 819, 230 A.3d 865, cert.
denied, 335 Conn. 926, 234 A.3d 979 (2020); see also
State v. Maner, 147 Conn. App. 761, 767, 83 A.3d 1182,
cert. denied, 311 Conn. 935, 88 A.3d 550 (2014).
We conclude that the court did not abuse its discre-
tion in not requiring the disclosure of the contents of
the victim’s journals to the defendant. As we previously
noted, the court, in ruling on this request, considered
the private nature of the journals, that the victim had
reviewed only a few pages of the journals before testi-
fying, and that the state was in the process of reviewing
the entirety of the journals for exculpatory material.
The court’s consideration and its ultimate decision was
neither so arbitrary as to vitiate logic nor based on
improper or irrelevant factors. We cannot conclude,
therefore, that the court abused its discretion.
B
The defendant next argues that he was entitled to
the contents of the victim’s journals because they con-
stituted a statement pursuant to Practice Book §§ 40-
13A and 40-15 (1). The state counters that the defendant
waived this claim before the trial court, and, therefore,
we should not review it. We agree with the state.
On March 21, 2016, the defendant filed a motion for
discovery, requesting that the state provide him with
various materials. During the first day of the trial, both
the prosecutors and defense counsel learned of the
existence of the victim’s journals. During the discussion
regarding whether the court should review the contents
of the journals, defense counsel indicated that he was
requesting the journals as part of discovery, but in a
manner respectful to the victim. The parties agreed to
end the testimony of the victim, subject to her being
recalled as a witness depending on the contents of the
journals. The court then adjourned to discuss the issues
regarding the journals with counsel in chambers.
The next morning, the court stated on the record
that, following chambers discussions with the prosecu-
tors and defense counsel, the state would review the
journals for exculpatory material and any statements
made by the victim regarding the incidents in question.
If the journals contained such items, they would be
disclosed to the defense. Additionally, the court stated
that it would conduct an in camera review of any items
that the state thought might be exculpatory. Defense
counsel expressly agreed that the court’s statements
were consistent with what had been discussed pre-
viously in chambers, and raised no objection to that
procedure. The next day, the court clarified its order
as to the state’s obligations in reviewing the journals.
Again, defense counsel made no objection to this pro-
cess. On the last two days of trial, when the parties
discussed this issue with the court, defense counsel
raised no objection and did not attempt to obtain the
contents of the journals pursuant to Practice Book
§§ 40-13A and 40-15 (1).
On the basis of this record, we conclude that the
defendant waived the claim that he was entitled to the
contents of the victim’s journals because they consti-
tuted a statement pursuant to the rules of practice.
Defense counsel agreed to the procedure to be used in
the review of, and potential disclosure of, the contents
of the journals, and the defendant cannot now challenge
said procedure. ‘‘When the defendant consented to the
procedures, he waived his right to challenge them later
on appeal. Our procedure does not allow a defendant
to pursue one course of action at trial and later, on
appeal, argue that the path he rejected should now be
open to him. . . . For this court to rule otherwise
would result in trial by ambuscade of the trial judge.’’
(Internal quotation marks omitted.) State v. Santani-
ello, 96 Conn. App. 646, 669, 902 A.2d 1, cert. denied,
280 Conn. 920, 908 A.2d 545 (2006).
Our decision in State v. Tierinni, 165 Conn. App.
839, 140 A.3d 377 (2016), aff’d, 329 Conn. 289, 185 A.3d
591 (2018), provides additional support for this conclu-
sion. In that case, the trial court informed the parties
of its practice to hear brief evidentiary arguments at
sidebar to avoid excusing the jury each time. Id., 843–45.
The substance of these discussions would be placed
on the record at a later time. Id., 844. In the event that
the matter needed to be addressed immediately, the
court indicated its willingness to excuse the jury. Id.,
845. When asked if the parties objected to this proce-
dure, both the prosecutor and defense counsel responded
in the negative. Id. On appeal, the defendant claimed
that he had been excluded from critical stages of the
proceedings in violation of his state and federal consti-
tutional rights as a result of the court’s procedure with
respect to evidentiary objections. Id., 841. We con-
cluded that, by agreeing to the proposed procedure, the
defendant had waived this claim. Id., 843.
In Tierinni, we first set forth the definition of waiver.
‘‘[W]aiver is [t]he voluntary relinquishment or abandon-
ment—express or implied—of a legal right or notice.
. . . In determining waiver, the conduct of the parties
is of great importance. . . . [W]aiver may be effected
by action of counsel. . . . When a party consents to
or expresses satisfaction with an issue at trial, claims
arising from that issue are deemed waived and may not
be reviewed on appeal. . . . Thus, [w]aiver . . .
involves the idea of assent, and assent is an act of
understanding. . . .
‘‘Put another way, [w]e do not look with favor on
parties requesting, or agreeing to, an instruction or a
procedure to be followed, and later claiming that that
act was improper. . . . [S]ee . . . State v. Thompson,
146 Conn. App. 249, 259, 76 A.3d 273 (when party con-
sents to or expresses satisfaction with issue at trial,
claims arising from that issue deemed waived and not
reviewable on appeal), cert. denied, 310 Conn. 956, 81
A.3d 1182 (2013); State v. Crawley, 138 Conn. App.
124, 134, 50 A.3d 349 (appellate court cannot permit
defendant to elect one course at trial and then to insist
on appeal that course which he rejected at trial be
reopened), cert. denied, 307 Conn. 925, 55 A.3d 565(2012).’’ (Citations omitted; internal quotation marks
omitted.) State v. Tierinni, supra, 165 Conn. App. 847–
48.
Next, we noted that the actions of counsel could
effect a waiver, and that when a party consents to the
use of a procedure at trial, a claim arising from that
procedure was not reviewable on appeal. Id., 849. Con-
sequently, by accepting and acquiescing to the court’s
procedure, the defendant waived his claim that he was
denied the right to be present at the sidebar discus-
sions. Id.
In the present case, the defendant, through his coun-
sel, agreed to the prosecutors’ review of the journals
and to the court’s in camera review of any materials that
might be exculpatory. Having agreed to this procedure
before the trial court, the defendant cannot obtain
appellate review of this claim.
IV
The defendant’s final claim is that his rights under
Brady v. Maryland, supra, 373 U.S. 83, were violated as
a result of the procedures employed by the prosecutors
with respect to the review of the victim’s journals for
exculpatory information. Specifically, he contends that,
under these facts and circumstances, the prosecutors
were required to personally review the contents of the
journals and that this task could not have been dele-
gated to an inspector working for the prosecutors. We
disagree.
The defendant acknowledges that this claim was not
raised before the trial court and, therefore, seeks review
pursuant to State v. Golding, 213 Conn. 233, 239–40,
567 A.2d 823 (1989), as modified by In re Yasiel R., 317
Conn. 773, 781, 120 A.3d 1188 (2015). Pursuant to this
doctrine, ‘‘a defendant can prevail on a claim of consti-
tutional 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 viola-
tion . . . exists and . . . 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. . . . The first two Golding requirements involve
whether the claim is reviewable, and the second two
involve whether there was constitutional error requiring
a new trial.’’ (Citation omitted; emphasis in original,
internal quotation marks omitted.) State v. Castro, 200
Conn. App. 450, 456–57, 238 A.3d 813, cert. denied, 335
Conn. 983, 242 A.3d 105 (2020); see generally State v.
Rosa, 196 Conn. App. 480, 496–97, 230 A.3d 677 (defen-
dant’s unpreserved Brady claim reviewable pursuant
to Golding bypass doctrine), cert. denied, 335 Conn.
920, 231 A.3d 1169 (2020). The record is adequate and
the defendant’s claim is of constitutional magnitude,
and, thus, the first two Golding prongs are satisfied.
Our focus, therefore, is on whether the defendant dem-
onstrated that a constitutional violation occurred. State
v. Rosa, supra, 497.
‘‘Our analysis of the defendant’s claim begins with
the pertinent standard, set forth in Brady and its prog-
eny, by which we determine whether the state’s failure
to disclose evidence has violated a defendant’s right to
a fair trial. In Brady, the United States Supreme Court
held that the suppression by the prosecution of evi-
dence favorable to an accused upon request violates
due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith
or bad faith of the prosecution. . . . In Strickler v.
Greene, 527 U.S. 263, [281–82], 119 S. Ct. 1936, 144 L.
Ed. 2d 286 (1999), the United States Supreme Court
identified the three essential components of a Brady
claim, all of which must be established to warrant a
new trial: The evidence at issue must be favorable to
the accused, either because it is exculpatory, or because
it is impeaching; that evidence must have been sup-
pressed by the [s]tate, either [wilfully] or inadvertently;
and prejudice must have ensued. . . . Under the last
Brady prong, the prejudice that the defendant suffered
as a result of the impropriety must have been material
to the case, such that the favorable evidence could
reasonably be taken to put the whole case in such a
different light as to undermine confidence in the verdict.
. . . If . . . [the defendant] . . . fail[s] to meet his
burden as to [any] one of the three prongs of the Brady
test, then [the court] must conclude that a Brady viola-
tion has not occurred.’’ (Citations omitted; internal quo-
tation marks omitted.) State v. Rosa, supra, 196 Conn.
App. 497–98; see also State v. Bryan, 193 Conn. App.
285, 315, 219 A.3d 477, cert. denied, 334 Conn. 906, 220
A.3d 37 (2019).
Our Supreme Court has summarized the obligations
of the prosecutor with respect to Brady as follows. The
state has a duty, pursuant to Brady, to disclose evidence
that is favorable to the defense and material to the case.
State v. Guerrera, 331 Conn. 628, 646–47, 206 A.3d 160(2019). ‘‘As the state’s representative, the prosecutor
has a broad obligation to disclose Brady material
because principles of fundamental fairness demand no
less. . . . This obligation extends to evidence favor-
able to the defense that is not in the possession of the
individual prosecutor responsible for trying the case;
indeed, the obligation may encompass such evidence
even if it is not known to the prosecutor. . . . More
specifically, the prosecutor’s duty of disclosure extends
to Brady material that is known to the others acting
on the government’s behalf in [the case], including,
but not limited to, the police. . . . In other words, the
prosecutor is deemed to have constructive knowledge
of Brady material possessed by those acting on the
state’s behalf. . . . Thus, the prosecutor has a duty to
learn of exculpatory evidence in possession of any
entity that is acting as an agent or arm of the state in
connection with the particular investigation at issue.’’
(Citations omitted; internal quotation marks omitted.)
Id., 647; see also Kyles v. Whitley, 514 U.S. 419, 437–38,
115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995) (individual
prosecutor has duty to learn of any favorable evidence
known to others acting on government’s behalf, includ-
ing police). Simply stated, the individual prosecutor or
prosecutors trying a specific case bear the ultimate
responsibility for compliance with the disclosure of
evidence as required by Brady and its progeny. United
States v. Jennings, 960 F.2d 1488, 1490 (9th Cir. 1992).
In the present case, the defendant has alleged a some-
what unusual Brady violation. He claims that the vic-
tim’s journals needed to be reviewed personally by a
prosecutor, rather than ‘‘a nonlawyer member’’ of the
prosecutors’ office. As we noted in part III of this opin-
ion, the prosecutors assigned the task of reviewing the
victim’s journals, which were written in Spanish, to a
bilingual, experienced investigator. They provided her
with detailed instructions regarding this review, and a
prosecutor remained available to answer any questions
that arose during this process. The defendant contends,
however, that in this case, the review of the victim’s
journals could not be delegated to a nonlawyer but,
rather, required a personal review by the prosecutors
in order to avoid violating his constitutional rights to
due process.
In support of his argument, the defendant relies on
language from cases stating that the prosecutor trying
a particular case bears the ultimate responsibility for
disclosing Brady materials independent from any con-
clusion reached by others acting as agents of the state
in connection with the particular investigation. See, e.g.,
Kyles v. Whitley, supra, 514 U.S. 437; State v. Guerrera,
supra, 331 Conn. 647, 656; see also, e.g., McMillian v.
Johnson, 88 F.3d 1554, 1567 (11th Cir. 1996), cert.
denied, 521 U.S. 1121, 117 S. Ct. 2514, 138 L. Ed. 2d
1016 (1997); Walker v. New York, 974 F.2d 293, 299 (2d
Cir. 1992), cert. denied, 507 U.S. 961, 113 S. Ct. 1387,
122 L. Ed. 2d 762 (1993), cert. denied, 507 U.S. 972,
113 S. Ct. 1412, 122 L. Ed. 2d 784 (1993). These cases,
however, do not support the claim advanced by the
defendant in the present case. For example, the United
States Court of Appeals for the Second Circuit has
explained that the police satisfy their duty pursuant to
Brady when they turn over exculpatory material to the
prosecutor. Walker v. New York, supra, 298–99. The
prosecutor, on the basis of his or her legal acumen, then
determines whether this material must be disclosed to
the defense. Id., 299. The Second Circuit then explained:
‘‘A rule requiring the police to make separate, often
difficult, and perhaps conflicting, disclosure decisions
would create unnecessary confusion. It also would
ignore the fact that the defendant’s appropriate point
of contact with the government during litigation is the
prosecutor and not those who will be witnesses against
him.’’ Id. Thus, the Second Circuit clearly instructed,
as a general rule, that the police are obligated to turn
over material to the prosecutor’s office for a determina-
tion of what is to be disclosed to the defense in order
to comply with Brady. Walker does not, however, stand
for the proposition that only the prosecutor in a case,
and not a member of his or her staff acting under his
or her supervision, may review materials for a determi-
nation of whether disclosure is required under Brady.
See, e.g., United States v. Claridy, United States District
Court, Docket No. 02:CR498 (LMM) (S.D.N.Y. March
20, 2003) (noting that Kyles v. Whitley, supra, 514 U.S.
419, did not require assigned prosecutor to personally
review all relevant Securities and Exchange Commis-
sion personnel files in joint investigation).
Additionally, we note that the United States Court of
Appeals for the Ninth Circuit twice has rejected the
claim that an assistant United States attorney may be
personally ordered to review for Brady material, before
the trial, the personnel files of law enforcement officers
expected to testify at trial. United States v. Herring,
83 F.3d 1120, 1122–23 (9th Cir. 1996); United States v.
Jennings, supra, 960 F.2d 1488–89. In the latter case,
the court noted that the assistant United States attorney
prosecuting a case bore the responsibility for complying
with Brady and its progeny. United States v. Jennings,
supra, 1490. Cognizant of separation of powers con-
cerns vis-à-vis a court interfering with prosecutorial
independence, and relying on the lack of case law
requiring the personal efforts of an assistant United
States attorney to review these personnel files and the
absence of any indication that the prosecution would
not adhere to its duties and obligations under Brady,
the court determined that the United States District
Court for the Southern District of California had
improperly required personal review of the files by the
assistant United States attorney. Id., 1490–92. In United
States v. Herring, supra, 1121–23, the Ninth Circuit
rejected the defendant’s argument that Jennings had
been overruled by the United States Supreme Court’s
decision in Kyles v. Whitley, supra, 514 U.S. 419. See
also United States v. Martin, United States District
Court, Docket No. 2:15-CR-0235 (TLN) (E.D. Cal. August
11, 2016). Additionally, the United States District Court
for the Southern District of New York has noted that
the Second Circuit does not have a requirement that
prosecutors personally review the personnel files of
anticipated government employee witnesses. United
States v. Principato, United States District Court,
Docket No. 01:CR588 (LMM) (S.D.N.Y. October 16,
2002).15
In the present case, the defendant has failed to dem-
onstrate, through controlling or persuasive authority,
that the prosecutors in the present case were required
to personally review the contents of the victim’s jour-
nals to satisfy Brady. We emphasize that, ultimately,
the obligation for complying with Brady rests with the
prosecutor, but it does not follow that the personal
review of items such as the victim’s journals by a prose-
cutor is constitutionally required. Accordingly, we con-
clude that, because the defendant has failed to establish
a constitutional violation under the third Golding prong,
his claim fails.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of
victims of sexual assault, 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.
** This case originally was argued before a panel of this court consisting
of Judges Moll, Alexander, and Devlin. Thereafter, Judge Devlin retired from
this court and did not participate in the consideration of this decision.
Judge DiPentima was added to the panel, and she has read the briefs and
appendices and has listened to a recording of the oral argument prior to
participating in this decision.
1
The defendant also claims that his waiver of a jury trial was not made
knowingly, intelligently, and voluntarily, and, therefore, that he was denied
his federal and state constitutional rights to a jury trial. Specifically, he
contends that the trial court failed to inform him that, at a jury trial, he
would have the opportunity to participate in the jury selection process.
The defendant concedes, however, that our Supreme Court previously has
rejected such a claim. See State v. Ouellette, 271 Conn. 740, 747–58, 859
A.2d 907 (2004); State v. Cobb, 251 Conn. 285, 374, 743 A.2d 1 (1999), cert.
denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000). He further
recognizes that, as an intermediate appellate court, we are bound by those
decisions. See, e.g., State v. Corver, 182 Conn. App. 622, 638 n.9, 190 A.3d
941, cert. denied, 330 Conn. 916, 193 A.3d 1211 (2018). The defendant,
therefore, has briefed this claim only to preserve it for further review before
our Supreme Court or the United States Supreme Court. We, therefore, need
not address it.
2
Section 4-5 (b) of the Connecticut Code of Evidence provides: ‘‘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 compul-
sive sexual misconduct; (2) the trial court finds that the evidence is relevant
to a charged offense in that the other sexual misconduct is not too remote
in time, was allegedly committed upon a person similar to the alleged victim,
and was otherwise similar in nature and circumstances 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.’’
3
See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970).
4
Section 4-8A (a) of the Connecticut Code of Evidence provides in relevant
part: ‘‘Evidence of the following shall not be admissible in a civil or criminal
case against a person who has entered a plea of guilty or nolo contendere
in a criminal case . . . (2) a plea of nolo contendere or a guilty plea entered
under the Alford doctrine . . . .’’
5
Janet Murphy, a pediatric nurse practitioner, testified as an expert in
the field of behavioral characteristics of child sexual abuse victims. Murphy
testified that, in general, a delayed disclosure is very common for child
victims of sexual abuse.
6
We also note that the court, albeit in a different context, stated: ‘‘I feel
comfortable reviewing it because, as a judge, I am trained to only concentrate
on admissible evidence and not inadmissible evidence . . . .’’ The court
further noted: ‘‘Having done this for a long period of time I have a fair
amount of confidence in my ability to separate what is admissible and what
is inadmissible evidence . . . .’’
7
Two assistant state’s attorneys conducted the prosecution of the defen-
dant.
8
Practice Book § 40-13A provides: ‘‘Upon written request by a defendant
and without requiring any order of the judicial authority, the prosecuting
authority shall, no later than forty-five days from receiving the request,
provide photocopies of all statements, law enforcement reports and affida-
vits within the possession of the prosecuting authority and his or her agents,
including state and local law enforcement officers, which statements, reports
and affidavits were prepared concerning the offense charged, subject to the
provisions of Sections 40-10 and 40-40 et seq.’’
9
Practice Book § 40-15 provides in relevant part: ‘‘The term ‘statement’
as used in Sections 40-11, 40-13 and 40-26 means: (1) A written statement
made by a person and signed or otherwise adopted or approved by such
person . . . .’’
10
During cross-examination, the victim testified that Vizueta had studied
psychology in Peru and that she subsequently was informed that Vizueta
was not a licensed therapist in Connecticut.
11
On the basis of our review of the transcripts, it appears that neither
the prosecutors nor defense counsel had been aware of these journals until
the victim mentioned them during her testimony.
12
The prosecutor represented the following to the court: ‘‘These records
. . . were reviewed by my office, specifically . . . [by] . . . an investigator
for the state’s attorney’s office, she has been with the state’s attorney’s
office for fifteen years, she has been an investigator in our office for five
years, she is bilingual, she is a 2013 graduate of Albertus Magnus College
with a major in Criminal Justice. She was instructed by [the prosecutors]
as far as what she was looking for, we explained to her very carefully what
the state’s obligation is for exculpatory and Brady material.
‘‘She indicated that she spent about ten hours reviewing these materials
because they are in Spanish, and she took her time. These materials never
left the state’s attorney’s possession; they did not go to her home, they were
done during business hours. She indicated that she spent about ten hours
reviewing them and whenever she had any questions she would talk to [the
prosecutors] . . . .’’
13
General Statutes § 54-86c (b) provides: ‘‘Any state’s attorney, assistant
state’s attorney or deputy assistant state’s attorney may request an ex parte
in camera hearing before a judge, who shall not be the same judge who
presides at the hearing of the criminal case if the case is tried to the court,
to determine whether any material or information is exculpatory.’’
In the present case, the parties agreed that Judge Alander could review
the four pages from the victim’s journals to determine whether there was
any exculpatory material contained therein.
14
General Statutes § 54-86f (a) provides in relevant part: ‘‘In any prosecu-
tion for sexual assault under sections 53a-70, 53a-70a and 53a-71 to 53a-73a,
inclusive, no evidence of the sexual conduct of the victim may be admissible
unless such evidence is (1) offered by the defendant on the issue of whether
the defendant was, with respect to the victim, the source of semen, disease,
pregnancy or injury, or (2) offered by the defendant on the issue of credibility
of the victim, provided the victim has testified on direct examination as to
his or her sexual conduct, or (3) any evidence of sexual conduct with the
defendant offered by the defendant on the issue of consent by the victim,
when consent is raised as a defense by the defendant, or (4) otherwise so
relevant and material to a critical issue in the case that excluding it would
violate the defendant’s constitutional rights. . . .’’
15
See also United States v. Thomas, United States District Court, Docket
No. 1:18-CR-00458 (WJ) (D. N.M. October 23, 2018) (government satisfied
its Brady duty by following current Department of Justice policy in which
Drug Enforcement Agency attorneys and staff review personnel files and
produce any exculpatory or impeachment materials to assistant United
States attorney); United States v. Burk, United States District Court, Docket
No. 3:15-CR-00088 (SLG-DMS) (D. Alaska September 8, 2016) (courts lack
authority to order assistant United States attorney to personally review
personnel files).