State v. Carlos P. ( 2017 )

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STATE OF CONNECTICUT v. CARLOS P.*
(AC 39616)
Lavine, Alvord and Pellegrino, Js.
Argued December 5, 2016—officially released March 14, 2017
(Appeal from Superior Court, judicial district of
Danbury, Pavia, J.)
Pamela S. Nagy, assistant public defender, for the
appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Stephen J. Sedensky III, state’s
attorney, Deborah Mabbett, senior assistant state’s
attorney, and Edward L. Miller, deputy assistant state’s
attorney, for the appellee (state).
Opinion
LAVINE, J. The defendant, Carlos P., appeals from
the judgment of conviction, rendered after a trial to the
jury, of one count of sexual assault in the first degree
in violation of General Statutes § 53a-70 (a) (2), one
count of attempted sexual assault in the first degree in
violation of General Statutes §§ 53a-49 and 53a-70 (a)
(2), risk of injury to a child in violation of General
Statutes § 53-21 (a) (2), and one count of sexual assault
in the fourth degree in violation of General Statutes
§ 53a-73a (a) (1) (A).1 On appeal, the defendant claims
that (1) his convictions of sexual assault in the first
degree and attempt to commit sexual assault in the first
degree violate the constitutional prohibition against
double jeopardy, (2) his convictions of sexual assault
in the first degree and sexual assault in the fourth degree
violate the constitutional prohibition against double
jeopardy, (3) the court erred by rejecting his Batson2
challenge, and (4) the court abused its discretion by
failing to disclose all of the psychiatric and medical
records of the state’s key witness. We reverse, in part,
and affirm, in part, the judgment of the trial court.
The jury reasonably could have found the following
facts. On November 21, 2012, the then three year old
victim lived with her mother in an apartment in Dan-
bury. The defendant is the victim’s father, but he did not
then live with the victim and mother. He was, however, a
frequent visitor who occasionally spent the night in
the apartment. The defendant and mother had a good
relationship when the defendant was not abusing alco-
hol. He primarily spoke Spanish, and mother primarily
spoke English, but the two devised a form of communi-
cation for themselves, a combination of English and
Spanish.
On the day in question, the defendant appeared at
the apartment after several days of drinking. He was
intoxicated and asked mother for sex. Mother refused
because she did not have sex with the defendant when
he was drunk. That day, mother was busy preparing
for the next day’s Thanksgiving celebration and needed
to go to the store to make a purchase. She stayed in
the apartment for forty-five minutes to ensure that the
defendant did not consume any additional alcohol and
that he was sober enough to look after the victim. Before
mother left the apartment, she gave the victim, who
was in her own room, a popsicle. The defendant was
sitting on the couch in the living room.
When mother returned to the apartment ten minutes
later, she saw the victim, with her popsicle, reclining
on the couch with her pants and underwear down
around her ankle and her legs wide open. The defendant
was sitting a pillow’s length away from the victim in a
corner of the couch with his pants unbuckled. Mother
asked the defendant what was going on. The defendant
responded, in Spanish, that the mother did not care for
him and ‘‘chupa chapa.’’3 Mother slapped the defendant
on the face and stated that she was going to call the
police. Mother called 911 and went outside with the
victim to open the door for the police.
When mother returned to the apartment, she saw the
defendant in the bathroom and heard running water.
She observed the defendant washing his penis and geni-
tal area. She stated to the defendant not to do that,
but he buckled up his pants and left the apartment.
According to mother, she had never before seen the
defendant sponge bathing his penis; he showered like
everyone else.
After the police arrived, the victim and mother were
transported via ambulance to the emergency room,
where Krystyna Isbell, a registered nurse and sexual
assault nurse examiner, administered a standardized
sexual assault evidence kit to the victim to collect evi-
dence. Isbell found no signs of physical trauma to the
victim and swabbed her external genitalia and vagina.
The specimens collected from the victim were placed
in sealed bags, transferred to a police officer, Michelle
Cattuti, and delivered to the state forensic laboratory
for analysis.
At the state forensic laboratory, Jane Codraro, a
forensic biologist, examined the material collected from
the victim’s vagina and external genitalia. Codraro did
not find any spermatozoa, which is the cellular compo-
nent of semen, but she found evidence of p30, a seminal
fluid protein. A positive result for p30 indicates, but
does not conclusively establish, the presence of semen.
Codraro used sophisticated DNA testing to determine
that the DNA extracted from the genetic material taken
from the victim’s vagina came from the defendant or
from the same paternal lineage.
Mother spoke to the defendant via telephone several
weeks later when he called. Mother stated to the defen-
dant that he was not to come to the apartment until he
had spoken with the Danbury Police Department. The
defendant voluntarily went to the Danbury Police
Department on December 5, 2012, where he was inter-
viewed by Detective Heather Burke. The defendant gave
Burke an oral statement in Spanish.4
The defendant was arrested in January, 2013, and
charged with sexual assault in the first degree in viola-
tion of § 53a-70 (a) (2), attempted sexual assault in the
first degree in violation of §§ 53a-49 and 53a-70 (a) (2),
risk of injury to a child in violation of § 53-21 (a) (2),
risk of injury to a child in violation of § 53-21 (a) (1),5
and sexual assault in the fourth degree in violation
of § 53a-73 (a) (1). Additional facts will be set forth
as needed.
I
DOUBLE JEOPARDY CLAIMS
The defendant has raised two double jeopardy claims
on appeal: (1) his convictions for sexual assault in the
first degree in violation of § 53a-70 (a) (2) and attempted
sexual assault in the first degree in violation of §§ 53a-49
and 53a-70 (a) (2) violated the constitutional prohibition
against double jeopardy, and (2) his convictions of sex-
ual assault in the first degree in violation of § 53a-70 (a)
(2) and sexual assault in the fourth degree in violation of
§ 53a-73a (a) (1) (A) also violated the constitutional
prohibition against double jeopardy. We agree with the
defendant’s first but not his second double jeopardy
claim.
The defendant failed to preserve his double jeopardy
claims at trial and seeks to prevail on appeal pursuant
to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d
823 (1989). ‘‘Under [Golding] a defendant can prevail
on a claim of constitutional error not preserved at trial
only if all of the following conditions are met: (1) the
record is adequate to review the alleged claim of error;
(2) the claim is of constitutional magnitude alleging
the violation of a fundamental right; (3) the alleged
constitutional violation . . . exists and . . . deprived
the defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond
a reasonable doubt. . . . The first two Golding require-
ments involve whether the claim is reviewable, and the
second two involve whether there was constitutional
error requiring a new trial.’’ (Emphasis added; internal
quotation marks omitted.) State v. Fabricatore, 281
Conn. 469, 476–77, 915 A.2d 872 (2007); see In re Yasiel,
317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying
third prong of Golding). The defendant’s claims are
reviewable because the record is adequate for review,
and the claims are of constitutional magnitude.
Double jeopardy claims present a question of law
over which our review is plenary. See State v. Burnell,
290 Conn. 634, 642, 966 A.2d 168 (2009). ‘‘The fifth
amendment to the United States constitution provides
in relevant part: No person shall . . . be subject for
the same offense to be twice put in jeopardy of life
or limb . . . . The double jeopardy clause of the fifth
amendment is made applicable to the states through
the due process clause of the fourteenth amendment.’’
(Internal quotation marks omitted.) State v. Brown, 299
Conn. 640, 650–51, 11 A.3d 663 (2011).
‘‘Double jeopardy prohibits not only multiple trials
for the same offense, but also multiple punishments for
the same offense. . . . The double jeopardy analysis
in the context of a single trial is a two part process.
First, the charges must arise out of the same act or
transaction. Second, it must be determined whether the
charged crimes are the same offense. Multiple punish-
ments are forbidden only if both conditions are met.
. . . The defendant on appeal bears the burden of prov-
ing that the prosecutions are for the same offense in
law and fact.’’ (Internal quotation marks omitted.) State
v. Felder, 146 Conn. App. 621, 625, 78 A.3d 224 (2013),
cert. denied, 311 Conn. 909, 83 A.3d 1164 (2014). The
double jeopardy prohibition also is violated if one crime
is a lesser included offense of the other. See State v.
Morin, 180 Conn. 599, 601–605, 430 A.2d 1297 (1980);
State v. Haywood, 109 Conn. App. 460, 465–66, 952 A.2d
84, cert. denied, 289 Conn. 928, 958 A.2d 161 (2008).
‘‘The traditional approach to analyzing whether two
offenses constitute the same offense was set forth in
Blockburger v. United States, 284 U.S. 299, 52 S. Ct.
180, 76 L. Ed. 306 (1932). [W]here the same act or
transaction constitutes a violation of two distinct statu-
tory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether
each provision requires proof of a fact which the other
does not.’’ (Internal quotation marks omitted.) State v.
Greco, 216 Conn. 282, 291, 579 A.2d 84 (1990). ‘‘This
test is a technical one and examines only the statutes,
charging instruments, and bill of particulars as opposed
to the evidence presented at trial. . . . Thus, the issue,
though essentially constitutional, becomes one of statu-
tory construction.’’ (Internal quotation marks omitted.)
State v. Felder, supra, 146 Conn. App. 625–26, quoting
State v. Alvaro F., 291 Conn. 1, 7, 966 A.2d 712, cert.
denied, 558 U.S. 882, 130 S. Ct. 200, 175 L. Ed. 2d 140(2009). ‘‘The test used to determine whether one crime
is a lesser offense included within another crime is
whether it is not possible to commit the greater offense,
in the manner described in the information . . . with-
out having first committed the lesser . . . . This . . .
test is satisfied if the lesser offense does not require
any element which is not needed to commit the greater
offense.’’ (Internal quotation marks omitted.) State v.
Haywood, supra, 109 Conn. App. 465. ‘‘Therefore, a
lesser included offense of a greater offense exists if a
finding of guilt of the greater offense necessarily
involves a finding of guilt of the lesser offense.’’ State
v. Arokium, 143 Conn. App. 419, 435, 71 A.3d 569 (pos-
session of narcotics lesser included offense of posses-
sion of narcotics with intent to sell), cert. denied, 310
Conn. 904, 75 A.3d 31 (2013).
When a defendant has been found guilty of both a
greater and a lesser offense, the remedy is to vacate
the defendant’s conviction of the lesser included
offense. State v. Polanco, 308 Conn. 242, 248, 61 A.3d
1084 (2013).
A
The defendant claims that his convictions of sexual
assault in the first degree in violation of § 53a-70 (a)
(2)6 and attempted sexual assault in the first degree in
violation of §§ 53a-497 and 53a-70 (a) (2) violated the
constitutional prohibition against double jeopardy. The
state acknowledges that the defendant’s convictions of
both attempt to commit sexual assault in the first degree
and sexual assault in the first degree arose from the
same act, and therefore concedes that attempt to com-
mit sexual assault in the first degree is a lesser included
offense of sexual assault in the first degree. We agree.
The following procedural facts are relevant to our
resolution of the defendant’s claim. In its substitute
long form information filed on May 20, 2014, the state
charged in count one that ‘‘on or about November 21,
2012, at approximately 11:45 a.m. at an apartment build-
ing on Fifth Avenue in Danbury . . . [the defendant]
engaged in sexual intercourse with another person and
such other person was under thirteen years of age and
the actor was more than two years older than such
other person. To Wit: a three year old minor female, in
violation of . . . § 53a-70 (a) (2).’’ In count two, the
state charged that ‘‘on or about November 21, 2012, at
approximately 11:45 a.m. at an apartment building on
Fifth Avenue in Danbury . . . [the defendant]
attempted to engage in sexual intercourse with another
person and such other person was under thirteen years
of age and the actor was more than two years older
than such other person. To Wit: a three year old minor
female, in violation of [§§] 53a-49 and 53a-70 (a) (2).’’
Because one cannot commit the greater offense of
sexual assault in the first degree without first
attempting to commit sexual assault in the first degree,
the defendant’s conviction of attempt to commit sexual
assault in the first degree and sexual assault in the first
degree violates the prohibition against double jeopardy.
The two offenses, therefore, are the same for purposes
of double jeopardy. To rectify the constitutional viola-
tion, the defendant’s conviction of attempt to commit
sexual assault in the first degree, and resulting sentence,
must be vacated. See State v. Polanco, supra, 308
Conn. 249.
B
The defendant’s second claim is that his convictions
of sexual assault in the first degree in violation of § 53a-
70 (a) (2)8 and sexual assault in the fourth degree in
violation of § 53a-73a (a) (1) (A)9 violated the constitu-
tional prohibition against double jeopardy. We do not
agree.
As previously stated, we apply the test set out in
Blockburger v. United States, supra, 284 U.S. 304, ‘‘to
determine whether two statutes criminalize the same
offense . . . .’’ (Internal quotation marks omitted.)
State v. Alvaro F., supra, 291 Conn. 7. Pursuant to the
Blockburger test, ‘‘the test to be applied to determine
whether there are two offense or only one, is whether
each provision requires proof of a fact which the other
does not. . . . This test is a technical one and examines
the statutes, charging instrument, and bill of particulars
as opposed to the evidence presented at trial. . . .
Thus, [t]he issue, though essentially constitutional,
becomes one of statutory construction.’’ (Citations
omitted; emphasis added; internal quotation marks
omitted.) Id.‘‘The Blockburger test is a rule of statutory construc-
tion, and because it serves as a means of discerning
[legislative] purpose the rule should not be controlling
where, for example, there is a clear indication of con-
trary legislative intent. . . . Thus, the Blockburger test
creates only a rebuttable presumption of legislative
intent, [and] the test is not controlling when a contrary
intent is manifest. . . . When the conclusion reached
under Blockburger is that the two crimes do not consti-
tute the same offense, the burden remains on the defen-
dant to demonstrate a clear legislative intent to the
contrary.’’ (Citation omitted; internal quotation marks
omitted.) State v. Wright, 319 Conn. 684, 690, 127 A.3d
147 (2015).
‘‘In applying the Blockburger test, we are permitted to
examine only the charging documents and the relevant
statutory provisions. . . . We are prohibited from
examining the evidence presented at trial. Indeed, [i]n
making this determination, we are concerned with theo-
retical possibilities, and do not focus on the evidence
presented.’’ (Citations omitted; footnote omitted; inter-
nal quotation marks omitted.) State v. Mezrioui, 26
Conn. App. 395, 403–404, 602 A.2d 29, cert. denied, 224
Conn. 909, 617 A.2d 169 (1992).
Once again, in count one of its substitute long form
information, the state charged that ‘‘on or about Novem-
ber 21, 2012, at approximately 11:45 a.m. at an apart-
ment building on Fifth Avenue in Danbury . . . [the
defendant] engaged in sexual intercourse with another
person and such other person was under thirteen years
of age and the actor was more than two years older
than such other person. To Wit: a three year old minor
female, in violation of . . . § 53a-70 (a) (2).’’ In count
five of its substitute long form information, the state
charged the defendant ‘‘with the crime of sexual assault
in the fourth degree and charges that on or about
November 21, 2012, at approximately 11:45 a.m. at an
apartment building on Fifth Avenue in Danbury . . .
[the defendant] intentionally subjected another person
to sexual contact who was under thirteen years of age
and the actor was more than two years older than such
person. To Wit: a three year old minor female, in viola-
tion of . . . § 53a-73 (a) (1) (A).’’10 The defendant
argues, in effect, that engaging in sexual intercourse
necessarily requires a defendant to subject a victim to
sexual contact.
We agree with the defendant that the crimes alleged
arose out of the same act. Pursuant to the Blockburger
test, however, we conclude that sexual assault in the
first degree in violation of § 53a-70 (a) (2) and sexual
assault in the fourth degree in violation of § 53a-73 (a)
(1) (A) are separate and distinct crimes. Each crime
requires proof of an element that the other does not.
More specifically, sexual assault in the first degree
requires proof of sexual intercourse, which sexual
assault in the fourth degree does not; sexual assault in
the fourth degree requires proof of sexual contact for
the purpose of sexual gratification of the actor or the
degradation or humiliation of the victim, which sexual
assault in the first degree does not. Therefore, pursuant
to our exercise in statutory construction, sexual assault
in the fourth degree is not a lesser included offense of
sexual assault in the first degree. Our review of the
court’s instructions to the jury reveals that the court’s
instructions are consistent with the proof required by
each of the statutes.11
Although the defendant acknowledges that each of
the crimes requires proof of an element that the other
does not, he argues that the Blockburger test is not
controlling if it can be determined that the legislature
did not intend for a person to be punished for both
crimes arising from the same act. He continues that the
legislative history shows that the intent of the legisla-
ture in enacting §§ 53a-70 (a) (2) and 53a-73a (a) (1)
(A) was to protect persons under the age of thirteen
from being sexually assaulted and that the two crimes
are parallel crimes. In other words, he states, ‘‘what a
defendant could be convicted of for committing one
act was a matter of degree—whether it amounted to
intercourse or whether it amounted to some other sex-
ual contact that did not constitute intercourse.’’
The defendant’s argument is at odds with the deci-
sional law of this court and our Supreme Court regard-
ing the construction of the statutory scheme regarding
sexual assault. For example, in State v. Sirimanochanh,
224 Conn. 656, 620 A.2d 761 (1993), our Supreme Court
agreed that this court properly had determined that
‘‘[s]exual assault in the fourth degree requires proof of
the element of sexual contact for the purpose of sexual
gratification of the actor or degradation or humiliation
of the victim, whereas sexual assault in the second
degree has no such element. The latter crime requires
proof of sexual intercourse whereas the former crime
does not. Each crime, therefore, requires proof of an
element that the other does not.’’ (Internal quotation
marks omitted.) Id., 662–63. In State v. Milardo, 224
Conn. 397, 618 A.2d 1347 (1993), our Supreme Court
concluded that attempted sexual assault in the third
degree in violation of General Statutes § 53-72a is not
a lesser included offense of attempted sexual assault
in the first degree in violation of § 53a-70 because the
former requires proof of an additional element not
found in the crime of attempted sexual assault in the
first degree, namely, that the defendant intended to
compel sexual contact for the purpose of either the
sexual gratification of the actor or the humiliation or
degradation of the victim. Id., 417.
In State v. Mezrioui, supra, 26 Conn. App. 395, this
court determined that the 1989 versions of the statutes
prohibiting sexual assault in the first degree; General
Statutes (Rev. to 1989) § 53a-70 (a); and sexual assault
in the third degree; General Statutes (Rev. to 1989)
§ 53a-72a (a) (1) (B); were separate crimes. The latter
crime required proof of sexual contact for the same
purpose as sexual assault in the fourth degree, which
is at issue here.12 State v. Mezrioui, supra, 405–406. In
State v. Henry, 76 Conn. App. 515, 820 A.2d 1076, cert.
denied, 264 Conn. 908, 826 A.2d 178 (2003), in the con-
text of a claim of improper jury instructions, this court
determined that neither sexual assault in the third
degree nor sexual assault in the fourth degree are lesser
included offenses of sexual assault in the first degree.
Id., 549–51.
Therefore, for the foregoing reasons, the defendant’s
claim that his convictions of sexual assault in the first
degree and sexual assault in the fourth degree violate
his right not to be punished twice for the same crime
fails.
II
BATSON CLAIM
The defendant’s third claim is that the court erred
by rejecting his Batson13 challenge because the reasons
given by the state for using a peremptory challenge to
excuse a venireperson, M.B.,14 were pretextual and not
supported by the record.15 We disagree.
The following procedural history is relevant to the
defendant’s claim. During voir dire, M.B. was first ques-
tioned by the defendant and then by the state. The
defendant accepted M.B. as a juror, but the state exer-
cised one of its peremptory challenges. The court
excused M.B.. Thereafter, defense counsel stated that
M.B. was not a United States native, he was of Brazilian
descent, and asked the state to articulate a race-neutral
reason as to why it did not accept M.B. as a juror.
Defense counsel also stated that this instance was the
second time that the state had exercised a peremptory
challenge with respect to a minority status individual.
The prosecutor responded that her exercise of a
peremptory challenge had nothing to do with M.B.’s
race. ‘‘It had to do with his being confused to some of
the questions and his answers to those questions,16 and
that I was concerned about. . . . And the ability to
come into judgment on another human being.17 We had
some concerns about that aspect also.’’ (Footnotes
added.)
The court stated its understanding of the defendant’s
Batson challenge as being related to minorities in gen-
eral. The state noted that it had accepted a Hispanic
male on the panel, but that it had excused a twenty-
year old African American male on the basis of his youth
and life experience. The court reviewed the history of
jury selection in the present case with respect to the
manner in which the state questioned members of the
venire panel, used its peremptory challenges, and
whether there was a suggestion of systematic discharge
of minority jurors. The court found: ‘‘one, that the
response with regard to why the state exercised a
peremptory with regard to this specific juror is not
pretextual, that there is in fact a basis on the record
with regard to the questions that were asked and the
responses. The court will additionally find that, after
looking back at the selection process in total, that there
is no systematic exclusion of minority jurors. I do agree
that there are minorities on this jury. . . . The state
has only used [inaudible] peremptory challenges in
total, and so this court is making a finding that there
is no, in this court’s opinion, systematic excuse with
regard to minorities and that the reason given for the
excuse [of M.B.] in particular is race-neutral.’’
On appeal, the defendant argues that the record does
not support that state’s reasons for exercising a peremp-
tory challenge with regard to M.B. and that the court
erred in finding that the state did not act in a purpose-
fully discriminatory manner in selecting the jury. We
are unpersuaded. Although the defendant acknowl-
edges that English may not be M.B.’s first language and
that M.B. was not particularly articulate, he claims that
the record does not reveal that M.B. did not understand
the questions put to him. We disagree with the defen-
dant’s claim that the state’s reasons for exercising a
peremptory challenge with respect to M.B. was pre-
textual, as we conclude that the reasons given for excus-
ing M.B. were race neutral, were supported by the
record, and were appropriate. See footnotes 15 and 16
of this opinion.
‘‘Voir dire plays a critical function in assuring the
criminal defendant that his [or her] [s]ixth [a]mendment
right to an impartial jury will be honored. . . . Part of
the guarantee of a defendant’s right to an impartial jury
is an adequate voir dire to identify unqualified jurors.’’
(Internal quotation marks omitted.) State v. Edwards,
314 Conn. 465, 483, 102 A.3d 52 (2014). ‘‘The purpose
of voir dire is to facilitate [the] intelligent exercise of
peremptory challenges and to help uncover factors that
would dictate disqualification for cause.’’ (Internal quo-
tation marks omitted.) Id. ‘‘[S]uch challenges generally
may be based on subjective as well as objective criteria
. . . .’’ (Internal quotation marks omitted.) Id.‘‘[I]n Batson [v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712,
90 L. Ed. 2d 69 (1986)] . . . the United States Supreme
Court recognized that a claim of purposeful racial dis-
crimination on the part of the prosecution in selecting
a jury raises constitutional questions of the utmost seri-
ousness, not only for the integrity of a particular trial
but also for the perceived fairness of the judicial system
as a whole. . . . The court concluded that [a]lthough
a prosecutor ordinarily is entitled to exercise permitted
peremptory challenges for any reason at all, as long as
that reason is related to his [or her] view concerning
the outcome of the case to be tried . . . the [e]qual
[p]rotection [c]lause forbids [a party] to challenge
potential jurors solely on account of their race . . . .’’
(Internal quotation marks omitted.) State v. Edwards,
supra, 314 Conn. 484.
‘‘Under Connecticut law, a Batson inquiry involves
three steps. First, a party must assert a Batson claim
. . . . [Second] the [opposing party] must advance a
neutral explanation for the venireperson’s removal.
. . . In evaluating the race neutrality of an attorney’s
explanation, a court must determine whether, assuming
the proffered reasons for the peremptory challenges
are true, the challenges violate the [e]qual [p]rotection
[c]lause as a matter of law. . . . At this stage, the court
does not evaluate the persuasiveness or plausibility of
the proffered explanation but, rather, determines only
its facial validity—that is, whether the reason on its
face, is based on something other than the race of the
juror.’’ (Citations omitted; footnote omitted; internal
quotation marks omitted.) Id., 484–85.18 ‘‘The second
step of the Batson inquiry involves a determination of
whether the party’s proffered explanation is facially
race neutral and, thus, is a question of law. . . .
Because this inquiry involves a matter of law, [an appel-
late court exercises] plenary review.’’ (Citations omit-
ted.) Id., 487.
‘‘In the third step, the burden shifts to the party
asserting the Batson objection to demonstrate that the
[opposing party’s] articulated reasons are insufficient
or pretextual.’’ (Internal quotation marks omitted.) Id.,
485. ‘‘The third Batson step, however, requires the court
to determine if the prosecutor’s proffered race neutral
explanation is pretextual. . . . Deference [to the trial
court’s findings of credibility] is necessary because a
reviewing court, which analyzes only the transcripts
from voir dire, is not as well positioned as the trial
court is to make credibility determinations. . . .
Whether pretext exists is a factual question, and there-
fore, [an appellate court] shall not disturb the trial
court’s finding unless it is clearly erroneous.’’ (Citations
omitted; internal quotation marks omitted.) Id., 489–90.
In the present case, the trial court found that ‘‘the
response with regard to why the state exercised a
peremptory with regard to [M.B.] is not pretextual, that
there is in fact a basis on the record with regard to the
questions that were asked and the responses.’’ On the
basis of our review of the record, we conclude that the
court’s finding that the state’s exercise of a peremptory
challenge to excuse M.B. was not pretextual is sup-
ported by the record and not clearly erroneous. The
defendant’s Batson claim, therefore, fails.
III
MEDICAL RECORDS CLAIM
The defendant’s fourth claim is that the court abused
its discretion by failing to disclose all of mother’s psy-
chiatric and medical records to him. We disagree.
We begin with the applicable law and standard of
review. In State v. Esposito, 192 Conn. 166, 179–80, 471
A.2d 949 (1984), our Supreme Court established the
procedure to be used for the disclosure of confidential
records for the purpose of protecting a defendant’s
constitutional right to confront witnesses against him.
State v. Cecil J., 291 Conn. 813, 828 n.12, 970 A.2d 710(2009). ‘‘Confrontation means more than the right to
confront the witness physically; the primary interest
secured by confrontation is the right of cross-examina-
tion.’’ State v. Esposito, supra, 178. ‘‘The capacity of a
witness to observe, recollect and narrate an occurrence
is a proper subject of inquiry on cross-examination. If
as a result of a mental condition such capacity has been
substantially diminished, evidence of that condition
before, at and after the occurrence and at the time of
the trial, is ordinarily admissible for use by the trier in
passing on the credibility of the witness.’’ Id., 176. ‘‘[I]n
some instances, otherwise privileged records, like the
ones in [the present] case, must give way to a criminal
defendant’s constitutional right to reveal to the jury
facts about a witness’ mental condition that may reason-
ably affect that witness’ credibility.’’ State v. Slimskey,
257 Conn. 842, 853–54, 779 A.2d 723 (2001).
The right to confront witnesses ‘‘guarantees an oppor-
tunity for effective cross-examination, not cross-exami-
nation that is effective in whatever way, and to whatever
extent, the defense might wish.’’ (Internal quotation
marks omitted.) Id., 854. ‘‘The need to balance a witness’
statutory privilege to keep psychiatric records confiden-
tial against a defendant’s rights under the confrontation
clause is well recognized.’’ Id., 855. ‘‘If, for purposes of
cross-examination, a defendant believes that certain
privileged records would disclose information espe-
cially probative of a witness’ ability to comprehend,
know or correctly relate the truth, he may, out of the
jury’s presence, attempt to make a preliminary showing
that there is a reasonable ground to believe that the
failure to produce the records would likely impair his
right to impeach the witness.’’ (Internal quotation marks
omitted.) Id.
‘‘Upon such a showing the court may then afford the
state an opportunity to secure the consent of the wit-
ness for the court to conduct an in camera inspection
of the claimed information and, if necessary, to turn
over to the defendant any relevant material for the
purposes of cross-examination. If the defendant does
make such showing and such consent is not forthcom-
ing then the court may be obliged to strike the testimony
of the witness. If the consent is limited to an in camera
inspection and such inspection, in the opinion of the
trial judge, does not disclose relevant material then the
resealed record is to be made available for inspection
on appellate review. If the in camera inspection does
reveal relevant material then the witness should be
given an opportunity to decide whether to consent to
release of such material to the defendant or to face
having her testimony stricken in the event of refusal.’’
(Internal quotation marks omitted.) State v. Kemah, 289
Conn. 411, 425–26, 957 A.2d 852 (2008).
‘‘[I]f the trial court discovers material exculpatory
evidence in the course of an in camera inspection, it
has a duty to disclose it to the defense and the defendant
has a due process right to its disclosure. . . . The
defendant [is] not entitled, however, to an unlimited
inspection of [confidential documents] in the hope of
discovering material evidence.’’ (Citation omitted; inter-
nal quotation marks omitted.) State v. Harris, 227 Conn.
751, 762, 631 A.2d 309 (1993).
‘‘With respect to a trial court’s consideration of
whether to allow a defendant access to requested confi-
dential materials, [our Supreme Court has] held that,
upon a proper showing and after an in camera review,
[a]ccess to confidential records should be left to the
discretion of the trial court which is better able to assess
the probative value of such evidence as it relates to the
particular case before it . . . and to weigh that value
against the interest in confidentiality of the records.
. . . When a defendant seeks access to confidential
records for impeachment purposes, the trial court must
determine whether [the records] sufficiently disclose
material especially probative of the [witness’] ability to
comprehend, know, and correctly relate the truth
. . . . Moreover, [our Supreme Court] has held that
[t]he determination of materiality . . . [is] inevitably
fact-bound and like other factual issues is committed to
the trial court in the first instance.’’ (Citations omitted;
internal quotation marks omitted.) State v. James G.,
268 Conn. 382, 403, 844 A.2d 810 (2004).19
In the present case, the record discloses the following
relevant procedural history. On April 10, 2014, the
defendant filed a request that the state disclose all of
mother’s medical records, particularly her mental
health records, on the ground that they were exculpa-
tory and necessary for cross-examination of her. In
response, the prosecutor issued a subpoena to the
Department of Mental Health and Addiction Services,
Western Connecticut Mental Health Network. In
response to the subpoena, an assistant attorney general
filed a motion to quash the subpoena.20 The prosecutor
also objected to the disclosure of mother’s mental
health records. The court held a hearing on the motion
to quash on April 30, 2014, and denied the motion to
quash but ordered that the subject records be delivered
to the clerk’s office under seal. The court ordered that
neither party was to receive copies of the documents.21
The court held a hearing pursuant to State v. Esposito,
supra, 192 Conn. 166, on May 6, 2014. At the hearing,
the defendant represented to the court that he was
aware that mother has received considerable mental
health services and has been treated for substance
abuse ‘‘that may have an impact on her ability to per-
ceive, recall, and disclose, all of which goes to a proper
examination of this witness.’’ More particularly, the
defendant represented that mother suffers from schizo-
phrenia and may or may not take medication that affects
her ability to perceive, recall, and adequately report.
The state objected to the disclosure of mother’s medical
records, arguing that the defendant had not made the
requisite showing that mother’s credibility, or her ability
to perceive or recall was at issue. The court stated that
the case law is clear that drug use goes to the ability
to recall and relate information accurately to the jury.
It, therefore, concluded that there is potential for this
information to be imperative for the defendant in terms
of cross-examination, but tended to disagree with the
defendant that a ten year period of time was appro-
priate, noting that for the court to disclose the medical
records, the records must relate to the specifics of
mother’s ability to testify, her ability to recall or compre-
hend what she is recollecting in terms of what occurred
during the time period relating to the underlying inci-
dent. The court also stated that it could not conduct
an in camera review unless mother agreed to it. Mother
subsequently agreed to the court’s in camera review of
her medical records and to the disclosure of her records
that the court thought relevant to the defendant’s cross-
examination of her.
The court stated on the record: ‘‘Having looked at
everything, I will also say this for the record, that what
is being handed over, while it may seem like it’s a lot,
and it certainly is a lot. It is to a large extent duplicative
in that it’s the continued diagnosis from one date to the
next, which isn’t necessarily saying something different
but is continuing to address the same diagnosis. So, to
a large extent, the documents duplicate each other in
what they are providing to counsel.’’
On appeal, the defendant has asked this court to
review mother’s medical records to determine if there
are other documents that are probative of her ability
to comprehend, recall, and accurately convey the truth.
He argues that the documents disclosed by the trial
court, following its in camera review, suggest that there
might be additional documents that should have been
disclosed. The state agreed that this court should con-
duct an in camera review of mother’s medical records
to determine whether the trial court abused its discre-
tion by not providing the defendant access to more of
mother’s medical records. Following a lengthy in cam-
era review of the subject records, we agree that many
of the records are duplicative and find that the court
did not abuse is discretion by limiting the records to
be disclosed to the defendant. In fact, we commend the
court for the manner in which it, with the agreement
of counsel, disclosed summaries of mother’s medical
record history, which the trial court stated gave a better
account and a flavor of the full history and diagnosis
of mother. We, therefore, conclude that the defendant’s
right to cross-examine mother was not violated and his
claim as to the disclosure of mother’s medical
records fails.22
As set forth in part I A of this opinion, the defendant’s
conviction of attempt to commit sexual assault in the
first degree must be vacated and the defendant must
be resentenced by the trial court.23
The judgment with respect to the defendant’s convic-
tion of attempt to commit sexual assault in the first
degree is reversed and the case is remanded with direc-
tion to vacate that conviction and to resentence the
defendant consistent with this opinion. The judgment
is affirmed in all other respects.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
1
The court sentenced the defendant on count one, sexual assault in the
first degree, to twenty-five years in the custody of the Commissioner of
Correction, suspended after ten years and twenty-five years of probation,
and lifetime sex offender registration. As to count two, attempted sexual
assault in the first degree, the court sentenced the defendant to ten years
in prison concurrent with the sentence on count one. As to count three,
risk of injury to a child, the defendant was sentenced to prison for twenty
years, execution suspended after ten years, the sentence to be concurrent
with the sentence on count two but consecutive to count one. With regard
to count five, sexual assault in the fourth degree, the defendant was sen-
tenced to five years, concurrent with the sentence on count two, but consecu-
tive to counts one and three. The defendant’s total effective sentence is
forty-five years, execution suspended after twenty-five years with twenty-
five years of probation.
The state contends that there is a mathematical error in the court’s calcula-
tion of the total effective sentence, arguing that it is fifty rather than forty-
five years. Any mathematical or clerical error is to be corrected at the time
the defendant is resentenced.
2
See Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 906 L. Ed. 2d
69 (1986).
3
Mother understood ‘‘chupa chapa’’ to mean ‘‘suck vagina.’’
4
The English translation of the defendant’s statement is as follows: ‘‘I
went to [mother’s] house. The following happened. [Mother] left me with
[the victim] a moment because [mother] went out. I don’t know where to.
And when she came back, I was lowering [the victim’s] pants to check for
poop and pee too . . . and [mother] arrived at that moment and she saw
the zipper of my pants down. But the pants were tied because the zipper
affects me when I bend forward. I have problems with the scar from [an]
operation and my penis does not work. Later I went to the bathroom to
urinate. Later I washed my penis because it was smelly because [it had
been] days [since] I had bathed. I washed my hands and I left. [Mother]
was angry. I don’t like to argue with anyone or fight. Days later I called
[mother] and she told me to go and talk to the police and I did it with
no problem.’’
5
The court dismissed the charge of risk of injury to a child in violation
of § 53-21 (a) (1) before the case was submitted to the jury.
6
General Statutes § 53a-70 (a) provides in relevant part: ‘‘A person is
guilty of sexual assault in the first degree when such person . . . (2) engages
in sexual intercourse with another person and such other person is under
thirteen years of age and the actor is more than two years older than such
person . . . .’’
General Statutes § 53a-65 (2) provides in relevant part: ‘‘ ‘Sexual inter-
course’ means vaginal intercourse, anal intercourse, fellatio or cunnilingus
between persons regardless of sex. Its meaning is limited to persons not
married to each other. Penetration, however slight, is sufficient to complete
vaginal intercourse, anal intercourse or fellatio and does not require emission
of semen. . . .’’
7
General Statutes § 53a-49 (a) provides: ‘‘A person is guilty of an attempt
to commit a crime if, acting with the kind of mental state required for
commission of the crime, he: (1) Intentionally engages in conduct which
would constitute the crime if attendant circumstances were as he believes
them to be; or (2) intentionally does or omits to do anything which, under the
circumstances as he believes them to be, is an act or omission constituting a
substantial step in a course of conduct planned to culminate in his commis-
sion of the crime.’’
8
See footnote 6 of this opinion.
9
General Statutes § 53a-73a (a) provides in relevant part: ‘‘Any person is
guilty of sexual assault in the fourth degree when: (1) Such person intention-
ally subjects another person to sexual contact who is (A) under thirteen
years of age and the actor is more than two years older than such other
person . . . .’’
General Statutes § 53a-65 (3) provides: ‘‘ ‘Sexual contact’ means any con-
tact with the intimate parts of a person not married to the actor for the
purpose of sexual gratification of the actor or for the purpose of degrading
or humiliating such person or any contact of the intimate parts of the actor
with a person not married to the actor for the purpose of sexual gratification
of the actor or for the purpose of degrading or humiliating such person.’’
10
The defendant filed a motion for a bill of particulars and statement of
essential facts on March 19, 2014. The state responded to the defendant’s
motion by filing a response, stating that it ‘‘provided the defendant with a
Long Form Information dated March 3, 2014 that provides the defendant
with the necessary information requested.’’ The March 3, 2014, long form
information contains the same allegations charged in the state’s long form
information filed on May 20, 2014, which was the operative trial information.
The defendant did not thereafter pursue his request for a bill of particulars.
The burden is on the defendant to request a bill of particulars and a statement
of essential facts more precisely defining the manner in which he committed
the offense. State v. Osman, 21 Conn. App. 299, 310, 573 A.2d 743 (1990),
rev’d on other grounds, 218 Conn. 432, 589 A.2d 1227 (1991).
11
The court charged in relevant part: ‘‘For you to find the defendant guilty
of [sexual assault in the first degree], the state must prove the following
elements beyond a reasonable doubt. Element one, the first element is that
the defendant engaged in sexual intercourse with the complainant. Sexual
intercourse, for purposes of this case, means vaginal intercourse. Its meaning
is limited to persons not married to each other. Penetration, however slight,
is sufficient to complete vaginal intercourse.
***
‘‘For you to find the defendant guilty of [sexual assault in the fourth
degree], the state must prove beyond a reasonable doubt the following
elements. Element one is sexual contact. The first element is that the defen-
dant intentionally subjected the complainant to sexual contact. ‘Sexual con-
tact’ means any contact by the defendant with the intimate parts of the
complainant. ‘Intimate parts’ means the genital area, any substance emitted
therefrom, groin, inner thighs or buttocks. To constitute sexual contact,
there must be an actual touching. There need not be, however, direct contact
with the unclothed body of the other person of the defendant. It is enough
if the touching of the genital area, the groin, the inner thighs, or the buttocks
was through the other person’s clothes or the defendant’s clothing. The
second element is that the defendant had the specific intent to obtain sex-
ual gratification.’’
The jury was not asked to answer any interrogatories as to the manner in
which the defendant had sexual contact with the intimate parts of the victim.
12
In his brief, the defendant asks this court to overrule State v. Mezrioui,
supra, 26 Conn. App. 395. ‘‘[I]t is axiomatic that one panel of this court
cannot overrule the precedent established by a previous panel’s holding.’’
(Internal quotation marks omitted.) Samuel v. Hartford, 154 Conn. App.
138, 144, 105 A.3d 333 (2014). This court often has stated that ‘‘this court’s
policy dictates that one panel should not, on its own, reverse the ruling of
a previous panel. The reversal may be accomplished only if the appeal is
heard en banc.’’ (Internal quotation marks omitted.) Staurovsky v. Milford
Police Dept., 164 Conn. App. 182, 202, 134 A.3d 1265, cert. granted on other
grounds, 321 Conn. 915, 136 A.3d 645 (2016); see also Practice Book § 70-7.
Our Supreme Court has stated with respect to the role of appellate courts,
‘‘case law dictates that we should be especially wary of overturning a deci-
sion that involves the construction of a statute. . . . When we construe a
statute, we act not as plenary lawgivers but as surrogates for another policy
maker, [that is] the legislature. In our role as surrogates, our only responsibil-
ity is to determine what the legislature, within constitutional limits, intended
to do. Sometimes, when we have made such a determination, the legislature
instructs us that we have misconstrued its intentions. We are bound by the
instructions so provided. . . . More often, however, the legislature takes
no further action to clarify its intentions. Time and again, we have character-
ized the failure of the legislature to take corrective action as manifesting
the legislature’s acquiescence in our construction of a statute. . . . Once
an appropriate interval to permit legislative reconsideration has passed
without corrective legislative action, the inference of legislative acquies-
cence places a significant jurisprudential limitation on our own authority
to reconsider the merits of our earlier decision.’’ (Internal quotation marks
omitted.) Hummel v. Marten Transport, Ltd., 282 Conn. 477, 494–95, 923
A.2d 657 (2007). Moreover, ‘‘[w]e presume that the legislature is aware of
our interpretation of a statute, and that its subsequent nonaction may be
understood as a validation of that interpretation.’’ (Internal quotation marks
omitted.) McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 119,
527 A.2d 664 (1987).
Inasmuch as this court decided Mezrioui in 1992 and the legislature has
not taken an action to correct this court’s construction of the statutes
discussed therein, we must presume that the legislature concurs with this
court’s construction of the statutes. See Staurovsky v. Milford Police Dept.,
supra, 164 Conn. App. 202.
13
See Batson v. Kentucky, 478 U.S. 79, 89, 106 S. Ct. 1712, 906 L. Ed. 2d
69 (1986) (use of peremptory challenge to strike venireperson on basis of
race violates equal protection clause of federal constitution). The record in
the present case does not disclose M.B.’s race, but it does indicate that he
is a native Brazilian. The defendant’s argument is predicated on the fact
that M.B. is a Brazilian, which relates to his national origin, not his race.
Our Supreme Court, however, has expanded the Batson principles to prohibit
the use of preemptory challenges on the basis of ethnic origin or ancestry.
See State v. Rigual, 256 Conn. 1, 8–9, 771 A.2d 939 (2001).
14
We refer to the venireperson by his initials to protect his privacy.
15
The defendant also argues on appeal that racial discrimination may be
inferred ‘‘by the perfunctory questioning of M.B. in comparison [with] other
prospective jurors’’ and that ‘‘all three jurors the state excused appear to
be of minority status.’’ The state argues that these claims are not reviewable
because they were not raised at trial, which deprived the state of an opportu-
nity to be heard, the trial court to make findings and to create a record for
review. We agree that the claims are not reviewable because the record is
inadequate. See State v. Jackson, 95 Conn. App. 400, 414, 896 A.2d 137, cert.
denied, 279 Conn. 904, 901 A.2d 1226 (2006).
16
During voir dire by defense counsel, M.B. responded, in part, to questions
as follows:
‘‘[Defense Counsel]: Speaking of police officers, have you ever had any
encounters with any police officers? Negative or positive.
‘‘[M.B.]: I just—one encounter I have is five or six years ago they stopped
me on a stop sign violation.
‘‘[Defense Counsel]: Okay.
‘‘[M.B.]: That’s all.
‘‘[Defense Counsel]: And how’d that go?
‘‘[M.B.]: Oh, nice. He tell me I don’t stop in stop sign, and I tell him I stop.
‘‘[Defense Counsel]: Okay.
‘‘[M.B.]: And a couple of minutes conversation he just give a warning and
he send me home. That’s all.
‘‘[Defense Counsel]: So you just had a warning.
‘‘[M.B.]: Yes, he gave a warning.
‘‘[Defense Counsel]: Okay. So, you never had to come to court for that.
‘‘[M.B.]: No.
‘‘[Defense Counsel]: Okay.
‘‘[M.B.]: Because, as I stop in stop sign, I saw his car in my left with lights
off. And I explained to him why I think he—I mean, I will guilt because I
saw him, I stopped and drive by to pick up my daughter. After that, he just
give me warning to be careful and let me go.’’
17
During voir dire by defense counsel, M.B. responded, in part, to questions
as follows:
‘‘[Defense Counsel]: Is there anything about the fact that this case you
may hear testimony regarding a minor, is there anything about that fact
alone that causes you concern about sitting on this jury?
‘‘[M.B.]: No.
‘‘[Defense Counsel]: Why not?
‘‘[M.B.]: I’m a Christian. If I go to serve as a jury, I have my conscience
is drive why is the God teaching about in the Bible. And as God’s preach
in the Bible, justice by a rule.’’
When questioned by the prosecutor, M.B. responded, in part, as follows:
‘‘[The Prosecutor]: And do you think that you’re a pretty good judge
of character?
‘‘[M.B.]: Character?
‘‘[The Prosecutor]: Yeah, do you think you’re a pretty good judge of
character?
‘‘[M.B.]: I’d like to say ‘yes’ because I’m a Christian.
‘‘[The Prosecutor]: Right.
‘‘[M.B.]: I don’t judge people.’’
18
Our Supreme Court has ‘‘identified several specific factors that may
indicate that [a party’s removal] of a venireperson through a peremptory
challenge was . . . motivated [by race]. These include, but are not limited
to: (1) [t]he reasons given for the challenge were not related to the trial of
the case . . . (2) the [party exercising the peremptory strike] failed to
question the challenged juror or only questioned him or her in a perfunctory
manner . . . (3) prospective jurors of one race . . . were asked a question
to elicit a particular response that was not asked of other jurors . . . (4)
person with the same or similar characteristics but not the same race . . .
as the challenged juror were not struck . . . (5) the [party exercising the
peremptory strike] advanced an explanation based on a group bias where
the group trait is not shown to apply to the challenged juror specifically . . .
and (6) the [party exercising the peremptory strike] used a disproportionate
number of peremptory challenges to exclude members of one race . . . .’’
(Internal quotation marks omitted.) State v. Edwards, supra, 314 Conn.
485–86.
19
In James G., our Supreme Court concluded that the trial court did not
abuse its discretion in denying that defendant access to confidential records
of the complainant after it reviewed sealed documents and determined that
they did not ‘‘contain exculpatory or impeachment evidence or evidence
relating to [complainant’s] ability to comprehend, know or correctly relate
the truth . . . .’’ (Internal quotation marks omitted.) State v. James G.,
supra, 268 Conn. 403.
20
The motion to quash was filed pursuant to General Statutes § 52-146e
and 42 C.F.R. Part 2.
21
The records are voluminous, covering more than a decade of mother’s
mental health history. The court estimated that probably thousands of pages
of documents were provided in response to the subpoena.
22
Even if we were to have found that the trial court abused its discretion
by failing to disclose additional medical records, we would conclude that
such abuse of discretion did not violate the defendant’s constitutional right
to confrontation, as it is harmless beyond a reasonable doubt. See State v.
Bruno, 197 Conn. 326, 336, 497 A.2d 758 (1985) (Shea, J., concurring).
The record discloses that, at trial, mother testified that at the time of the
events underlying the defendant’s conviction, she was being closely followed
by Western Connecticut Mental Health Network for a psychiatric disorder
and support of her daily function. She was taking the medication prescribed
for her. Mother described herself as emotionally frustrated by the defendant’s
drinking. She was able to care for herself, her daughter, and to work for
fifteen to twenty hours weekly at Catholic Charities. On cross-examination,
mother testified that she had been hospitalized for schizophrenia, perhaps
thirty-five times, and that when she was thirteen or fourteen years of age she
was delusional and had experienced hallucinations and paranoid thoughts.
In its brief, the state states that mother testified that she suffers from
schizoaffective disorder; has a history of psychosis, paranoid thoughts, hallu-
cinations and delusions; has heard conversational chatter in her mind, talks
to herself to discharge energy, and has an overactive imagination; in the
past, has dialed 911 to report seeing things that were not there, is a recovering
alcoholic, who historically and periodically abused crack cocaine, LSD,
powder cocaine, heroin, and marijuana, used heroin only a week prior to
the present trial and recently had been discharged from a detoxification
program, had once been found not competent by the Superior Court and
was sent to Connecticut Valley Hospital to be restored, and had been dis-
charged from a recovery program for smoking crack cocaine and from
another program for allowing her urine to be substituted for another’s
drug test.
Our Supreme Court has applied the harmless error doctrine to uphold a
defendant’s convictions despite the erroneous admission of testimony at
trial, where there was overwhelming evidence of the defendant’s guilt. State
v. Bruno, supra, 197 Conn. 335–36. As a matter of law, we conclude that
the evidence against the defendant was so overwhelming as to render any
possible error harmless beyond a reasonable doubt. See id. Mother’s psychi-
atric and substance abuse history was before the jury. The record does not
reveal that mother was not able accurately to perceive or relate the events
that underlie the defendant’s conviction. There is symmetry between moth-
er’s reporting the events to the police, her testimony at trial and the defen-
dant’s statement to the police. Moreover, the DNA evidence established that
the defendant’s biological material was present on the intimate parts of
the victim.
23
See footnote 1 of this opinion.