State v. Artiaco , 181 Conn. App. 406 ( 2018 )

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STATE OF CONNECTICUT v. WILLIAM A. ARTIACO
(AC 40020)
DiPentima, C. J., and Bright and Flynn, Js.
Syllabus
Convicted of the crimes of sexual assault in the first degree and risk of
injury to a child, the defendant appealed to this court. At trial, the
defendant sought to have C testify as an expert witness. After C’s voir
dire, the trial court determined that he was not qualified as an expert
on forensic interviews of child victims of sexual abuse and it excluded
C’s testimony as to whether the forensic interviews of the victim were
conducted properly. On appeal, the defendant claimed that the trial
court abused its discretion in precluding the testimony of C and that
he was deprived of a fair trial due to prosecutorial impropriety during
closing argument. Held:
1. The defendant’s unpreserved evidentiary claim that the trial court abused
its discretion in precluding the testimony of C was not reviewable, as
the claim that the defendant presented on appeal before this court
differed from the one raised before the trial court; during C’s voir dire,
defense counsel expressly stated before the trial court that his proffer
was that C would comment on whether the forensic interviews of the
victim were properly conducted, but the defendant raised a different
claim on appeal, namely, that the trial court abused its discretion in
precluding the testimony of C because he was well qualified to opine
on inconsistencies in the victim’s trial testimony and recorded inter-
views, and that his opinions could have been used to impeach the
victim’s credibility.
2. The defendant’s claim that he was deprived of his due process right to
a fair trial due to prosecutorial impropriety in closing argument was
unavailing: contrary to the defendant’s claim, the prosecutor did not
argue to the jury that the defendant lied during his testimony and,
although the prosecutor did state to the jury that the defendant possessed
a motive to lie based on the seriousness of the charges and that the
victim had no such motive to lie, it was permissible for the prosecutor
to explain to the jury whether the witnesses had a motive to lie; more-
over, the prosecutor did not improperly mischaracterize the evidence
or shift the burden of proof to the defendant to disprove the state’s
witnesses when the prosecutor argued to the jury that the victim consis-
tently had claimed that the defendant sexually assaulted her, including
when she disclosed his action to two of her friends, as the two friends
testified that the victim stated that the defendant molested her, and
those witnesses used the verb molest synonymously with the phrase
sexual assault in describing the defendant’s conduct.
Argued March 5—officially released April 24, 2018
Procedural History
Substitute information, in the first case, charging the
defendant with the crimes of sexual assault in the first
degree and risk of injury to a child, and substitute infor-
mation, in the second case, charging the defendant with
the crimes of sexual assault in the first degree and risk
of injury to a child, brought to the Superior Court in the
judicial district of Windham, geographical area number
eleven, where the cases were consolidated for trial;
thereafter, the matter was tried to the jury before
Swords, J.; verdicts of guilty; subsequently, the court
denied the defendant’s motion for a judgment of acquit-
tal and the defendant’s motion to set aside the verdicts
and for a new trial, and rendered judgments in accor-
dance with the verdicts, from which the defendant
appealed to this court. Affirmed.
Robert J. McKay, assigned counsel, for the appel-
lant (defendant).
Lisa A. Riggione, senior assistant state’s attorney,
with whom were Bonnie R. Bentley, senior assistant
state’s attorney, and, on the brief, Anne F. Mahoney,
state’s attorney, and Matthew Crockett, senior assistant
state’s attorney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, William A. Artiaco,
appeals from the judgments of conviction, rendered
after a jury trial, of two counts of sexual assault in the
first degree in violation of General Statutes § 53a-70 (a)
(2) and two counts of risk of injury to a child in violation
of General Statutes § 53-21 (a) (2). On appeal, the defen-
dant claims that (1) the trial court abused its discretion
in precluding the testimony of his expert witness and
(2) he was deprived of a fair trial due to prosecutorial
impropriety during closing argument. We disagree and,
accordingly, affirm the judgments of conviction.
The state filed two substitute informations against
the defendant, each charging him with one count of
sexual assault in the first degree and risk of injury to
a child. One information charged the defendant with
committing the offenses in Putnam and the other with
committing the offenses in East Windsor. Both substi-
tute informations alleged that the criminal conduct
occurred between 1998 and May 5, 2003, and that the
victim was the same in both cases.1 The defendant’s
trial commenced on June 1, 2011, and concluded on
June 8, 2011, with convictions on all four counts.2 Fol-
lowing his convictions, the court imposed a total effec-
tive sentence of twenty years incarceration and ten
years of special parole.3 This appeal followed.4
I
The defendant first claims that the court abused its
discretion in precluding the testimony of his expert
witness. Specifically, he argues that the court improp-
erly determined that his expert witness, James Con-
nolly, a psychologist and attorney, was not qualified
‘‘to be deemed an expert in child abuse in this matter,
as he demonstrated to the trial court that [he] had a
special skill or knowledge directly applicable to a mat-
ter in issue, that his skill or knowledge is not common
to the average person, and that the testimony would be
helpful to the court or jury in considering the issues.’’5
Because the argument presented on appeal differs from
the one raised before the trial court, we decline to
review this issue.
The following additional facts are necessary. Follow-
ing the conclusion of the state’s case, the defendant
sought to have Connolly testify as an expert witness.
The state requested and received permission to voir
dire Connolly regarding his qualifications to testify in
the present case. Outside of the presence of the jury,
defense counsel and the prosecutor questioned Con-
nolly about his education and experience. During argu-
ment, defense counsel expressly stated that his ‘‘proffer
is that [Connolly] will comment on whether or not the
[forensic] interview [of the victim] was well con-
ducted.’’6 The state countered that he lacked the train-
ing, knowledge, experience and skill to assist the jury
in determining whether the forensic interviews of the
victim had been conducted properly. The court deter-
mined that he was not qualified as an expert on forensic
interviews of child victims of sexual abuse.7
On appeal, the defendant does not claim that the
court erred in excluding Connolly’s testimony as to
whether the forensic interview of the victim was con-
ducted properly. Instead, he now argues that Connolly
was well qualified to opine on inconsistencies in the
victim’s trial testimony and recorded interviews and his
opinions could have been used to impeach her credibil-
ity. This differs markedly from the proffer made at trial,
where defense counsel sought to have Connolly review
the propriety of the forensic interview techniques and
protocols used for child sexual abuse victims.
The trial court’s preclusion of Connolly as an expert
witness is an evidentiary ruling. State v. Campbell, 149
Conn. App. 405, 425–27, 88 A.3d 1258, cert. denied, 312
Conn. 907, 93 A.3d 157 (2014). ‘‘Appellate review of
evidentiary rulings is ordinarily limited to the specific
legal [ground] raised by the objection of trial counsel.
. . . To permit a party to raise a different ground on
appeal than [that] raised during trial would amount to
trial by ambuscade, unfair both to the trial court and
to the opposing party.’’ (Internal quotation marks omit-
ted.) State v. Bennett, 324 Conn. 744, 761, 155 A.3d
188 (2017); see State v. Holloway, 117 Conn. App. 798,
813–14, 982 A.2d 231 (2009), cert. denied, 297 Conn.
925, 998 A.2d 1194 (2010); see generally State v. Paul B.,
143 Conn. App. 691, 700, 70 A.3d 1123 (2013) (assigning
error to court’s evidentiary ruling on basis of objections
never raised at trial unfairly subjects court and opposing
party to trial by ambush), aff’d, 315 Conn. 19, 105 A.3d
130 (2014); State v. Scott C., 120 Conn. App. 26, 34, 990
A.2d 1252 (we consistently decline to review claims
based on ground different from that raised in trial
court), cert. denied, 297 Conn. 913, 995 A.2d 956 (2010).
Accordingly, we decline to review this unpreserved evi-
dentiary claim.8
II
The defendant next claims that he was deprived of
a fair trial due to prosecutorial impropriety in closing
argument. Specifically, he argues that the prosecutor
improperly stated to the jury during his closing argu-
ment that (1) the defendant had lied and that the victim
lacked a motive to lie and (2) the victim had been
consistent in her trial testimony and prior disclosure
to her friends that the defendant had sexually assaulted
her.9 We conclude that the prosecutor’s statements
were not improper, and therefore this claim must fail.10
‘‘Our jurisprudence concerning prosecutorial impro-
priety during closing argument is well established. [I]n
analyzing claims of prosecutorial [impropriety], we
engage in a two step analytical process. The two steps
are separate and distinct: (1) whether [impropriety]
occurred in the first instance; and (2) whether that
[impropriety] deprived a defendant of his due process
right to a fair trial. Put differently, [impropriety] is
[impropriety], regardless of its ultimate effect on the
fairness of the trial; whether that [impropriety] caused
or contributed to a due process violation is a separate
and distinct question. . . . [W]hen a defendant raises
on appeal a claim that improper remarks by the prosecu-
tor deprived the defendant of his constitutional right
to a fair trial, the burden is on the defendant to show
. . . that the remarks were improper . . . .’’ (Citation
omitted; internal quotation marks omitted.) State v.
Thomas, 177 Conn. App. 369, 405, 173 A.3d 430, cert.
denied, 327 Conn. 985, 175 A.3d 43 (2017); see also State
v. Walton, 175 Conn. App. 642, 647, 168 A.3d 652, cert.
denied, 327 Conn. 970, 173 A.3d 390 (2017).
The defendant baldly asserts that the prosecutor
argued to the jury that the defendant lied during his
testimony. He offers no citation to the transcript to
support this contention, and in our own review of the
transcript we found no such statement by the prosecu-
tor. The prosecutor did state to the jury that the defen-
dant possessed a motive to lie based on the seriousness
of the charges and that the victim had no such motive
to lie. ‘‘It is permissible for a prosecutor to explain that
a witness either has or does not have a motive to lie.’’
State v. Ancona, 270 Conn. 568, 607, 854 A.2d 718 (2004),
cert. denied, 543 U.S. 1055, 125 S. Ct. 921, 160 L. Ed.
2d 780 (2005); State v. Reddick, 174 Conn. App. 536,
562, 166 A.3d 754, cert. denied, 327 Conn. 921, 171 A.3d
58 (2017), cert. denied, U.S. , 138 S. Ct. 1027,
200 L. Ed. 2d 285 (2018); see also State v. Thompson,
266 Conn. 440, 466, 832 A.2d 626 (2003) (prosecutor’s
comments regarding witness’ motive to lie were
proper); State v. Carlos E., 158 Conn. App. 646, 664,
120 A.3d 1239 (permissible for state to make arguments
regarding witness’ credibility if based on reasonable
inferences from evidence), cert. denied, 319 Conn. 909,
125 A.3d 199 (2015). We conclude, therefore, that the
defendant has failed to demonstrate that the challenged
comments constituted improper argument to the jury.
Finally, the defendant contends that the prosecutor
improperly argued to the jury that the victim consis-
tently had claimed that the defendant sexually assaulted
her, including when she disclosed his action to two of
her friends in the sixth and seventh grades. The defen-
dant contends that these two friends testified that the
victim had stated that she had been ‘‘molested’’ but that
she had not used the phrase ‘‘sexually assaulted.’’ We
are not persuaded that the prosecutor improperly mis-
characterized the evidence or shifted the burden of
proof to the defendant to disprove the state’s witnesses.
Considering the context of the entire trial and the clos-
ing arguments; see State v. Washington, 155 Conn. App.
582, 606, 110 A.3d 493 (2015); we conclude that the
prosecutor’s comments were not improper. During the
trial, the witnesses used the verb ‘‘molest’’ synony-
mously with the phrase ‘‘sexual assault’’ in describing
the defendant’s conduct.11 The challenged comments
were based on the evidence at trial, and did not mischar-
acterize the evidence or shift the burden of proof to
the defendant. See State v. Betancourt, 106 Conn. App.
627, 641, 942 A.2d 557 (asking jury to believe witness
unless there is evidence to discredit that witness is
proper and in no way shifts burden of proof), cert.
denied, 287 Conn. 910, 950 A.2d 1285 (2008). Accord-
ingly, we reject this argument.
The judgments are affirmed.
In this opinion the other judges concurred.
1
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.
2
A detailed recitation of the underlying facts is unnecessary. For purposes
of this appeal, we note that the victim testified that the defendant had
engaged in sexual intercourse with her and had contact with her intimate
parts multiple times, starting when she was in kindergarten. This criminal
conduct occurred in various ways; see General Statutes § 53a-65 (2) and
(8); and occurred in both Putnam and East Windsor.
3
The jury specifically found in both cases that the victim was under ten
years of age. See General Statutes § 53a-70 (b) (2).
4
On June 21, 2013, we dismissed the defendant’s appeal from the judg-
ments of conviction ‘‘because no appellate brief was filed in accordance
with [our] orders.’’ Artiaco v. Commissioner of Correction, 180 Conn. App.
243, 244, A.3d (2018). The habeas court concluded that the defendant
had been denied the effective assistance of appellate counsel, and restored
his appellate case. Id., 244 n.1.
5
During his voir dire, Connolly testified that he had received a doctorate
in clinical psychology in 1978 and a juris doctor in 1998. In the course of
his career, Connolly performed evaluations of the psychological status of
individuals accused of sexually abusing children.
6
The following colloquy occurred between the trial court and defense
counsel:
‘‘[Defense Counsel]: My proffer is that [Connolly] will comment on whether
or not the interview was well conducted.
‘‘The Court: All right. So it’s limited to the techniques used in the inter-
view; correct?
‘‘[Defense Counsel]: Yes.’’
7
Specifically, the court ruled: ‘‘Having listened to the testimony and also
having reviewed the testimony during the brief recess, the court is unable
to find that the witness’ experience and/or training qualifies him as an expert
in the field of forensic interview techniques and protocols of child sexual
abuse victims.
‘‘More specifically, the witness has no publications in the field. He has
never attended a course in forensic interview techniques of child sexual
abuse victims. He has never conducted a forensic interview of a child sexual
abuse victim.
‘‘All of his evaluations, of which he indicated were 400 in the field of
sexual abuse, were done of offenders, not of child abuse victims. He has
no board certifications that were testified to in any area of psychology.
There is absolutely no evidence that he keeps up or reads the research and
literature current in the field of child sexual abuse and/or forensic interview
techniques of child sexual abuse victims.
‘‘Although he testified he’s an expert witness and has been an expert
witness in Connecticut, there’s no evidence that he has ever testified as an
expert witness in the field of the evaluation of forensic interview techniques
of child sexual abuse victims. And finally, there is nothing in the witness’
educational background which would lead the court to believe that he has
any expertise in this field.
‘‘So for all of those reasons, the court is unable to find that [Connolly]
should testify as an expert witness in this case as proffered for the evaluation
of forensic interview techniques of child sexual abuse victims.’’ (Empha-
sis added.)
8
The defendant also requested that we review this claim pursuant to the
Golding doctrine. See 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). Unpreserved evidentiary claims, however, fail under the second
prong of Golding. State v. Stanley, 161 Conn. App. 10, 28, 125 A.3d 1078
(2015), cert. denied, 320 Conn. 918, 131 A.3d 1154 (2016); State v. Osbourne,
138 Conn. App. 518, 538, 53 A.3d 284, cert. denied, 307 Conn. 937, 56 A.3d
716 (2012). Accordingly, we decline to review this claim under Golding.
9
Specifically, the prosecutor argued: ‘‘You should evaluate [the victim’s]
testimony. And you’ll be told how to when it comes down to credibility,
and we’ll discuss that in a little bit. To make no mistake, she has been
consistent from her first interview, until the time she testified [on the first
day of the defendant’s trial], that [the defendant] was her abuser and it
happened in kindergarten.’’
Subsequently, the prosecutor stated to the jury: ‘‘You have the fact, it’s
very important, that [the victim] has no motive to lie about these things;
that she’s been consistent from the first interview, her discussions with
her friends before that, all the way up to [the first day of trial], when she
testified that the defendant sexually assaulted her and it happened in
kindergarten.’’ (Emphasis added.)
10
Accordingly, we need not conduct an analysis of the factors set forth
in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). See State v.
Adeyemi, 122 Conn. App. 1, 18, 998 A.2d 211, cert. denied, 298 Conn. 914,
4 A.3d 833 (2010).
11
‘‘Molest’’ has been defined in relevant part as, ‘‘to force physical and
[usually] sexual contact on,’’ while the phrase ‘‘sexually assault’’ has been
defined as ‘‘illegal sexual contact that [usually] involves force upon a person
without consent or is inflicted upon a person who is incapable of giving
consent . . . .’’ Merriam-Webster’s Collegiate Dictionary (11th Ed. 2003).