State v. Carrion

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STATE OF CONNECTICUT v.
CHRISTOPHER CARRION
(SC 18960)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Vertefeuille, Js.
Argued September 25, 2013—officially released September 30, 2014
Daniel J. Krisch, assigned counsel, for the appel-
lant (defendant).
Harry Weller, senior assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and Amy Sedensky, senior assistant state’s attor-
ney, for the appellee (state).
Opinion
PALMER, J. A jury found the defendant, Christopher
Carrion, guilty of four counts of sexual assault in the
first degree in violation of General Statutes § 53a-70 (a)
(2) and four counts of risk of injury to a child in violation
of General Statutes (Rev. to 2005) § 53-21 (a) (2).1 The
trial court rendered judgments in accordance with the
jury verdicts,2 and the defendant appealed to the Appel-
late Court, claiming, inter alia, that the trial court
improperly had (1) permitted the state, under State v.
Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied,
479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986),3
to use a video recording of a forensic interview of the
child victim, D.L.,4 for substantive purposes, despite the
highly suggestive manner in which the interview was
conducted, and (2) instructed the jury that the state
does not want the conviction of an innocent person as
it is as much concerned in having an innocent person
acquitted as in having a guilty person convicted. State
v. Carrion, 128 Conn. App. 46, 48, 57, 16 A.3d 1232
(2011). The Appellate Court rejected the defendant’s
first claim, concluding that the trial court reasonably
determined that the video recording of D.L.’s interview
was admissible under Whelan notwithstanding any
flaws in the manner in which the interview was con-
ducted. See id., 53–54. With respect to the second claim,
the Appellate Court declined to address its merits
because, the Appellate Court concluded, the defendant
implicitly had waived his right to raise the claim under
State v. Kitchens, 299 Conn. 447, 482–83, 10 A.3d 942
(2011).5 State v. Carrion, supra, 60–61. We granted the
defendant’s petition for certification to appeal, limited
to two issues. First, ‘‘[u]nder the circumstances pre-
sented, did the Appellate Court properly conclude that
the trial court reasonably [had] permitted the state to
introduce as substantive evidence a [video-recorded]
interview of [D.L.] . . . under [Whelan]?’’ State v. Car-
rion, 304 Conn. 925, 41 A.3d 1052 (2012). Second, ‘‘[d]id
the Appellate Court properly conclude that [defense
counsel] had a meaningful opportunity to review the
trial court’s final jury instructions and therefore [know-
ingly and intentionally] waived [the defendant’s] unpre-
served claim of instructional impropriety under [Kitch-
ens] . . . when defense counsel did not receive those
instructions until immediately prior to the lunch break
on the day that the court instructed the jury, thereby
affording counsel only one hour to review the instruc-
tions?’’ Id. Thereafter, the state claimed, as an alterna-
tive ground for affirmance,6 that, even if the defendant
did not waive his right to challenge the jury instruction
at issue, that instruction was not improper. With respect
to the evidentiary issue, we agree with the Appellate
Court that the trial court did not abuse its discretion
in admitting into evidence, for substantive purposes,
the video recording of D.L.’s forensic interview. With
respect to the defendant’s claim of instructional impro-
priety, even if we assume, without deciding, that the
defendant’s claim of instructional impropriety was not
implicitly waived under Kitchens, we conclude that the
challenged instruction, when viewed in the broader con-
text of the charge as a whole, did not deprive the defen-
dant of a fair trial. Accordingly, we affirm the judgment
of the Appellate Court.
The opinion of the Appellate Court sets forth the
following relevant facts that the jury reasonably could
have found. ‘‘From January, 2005, to March, 2007, the
defendant lived with his parents in [the town of] Pros-
pect, and D.L. lived with her parents and siblings in
[the city of] Waterbury. During this time, the defendant
and D.L. regularly spent time together, as the two were
cousins whose families would often gather [for] holi-
days, parties and other family occasions. On March 25,
2007, D.L., who was then seven years old, revealed to
her mother . . . that the defendant previously had sex-
ually abused her during visits in both Prospect and
Waterbury. Soon thereafter, [D.L.’s mother] informed
detectives of the Waterbury [P]olice [D]epartment of
[D.L.’s] revelations, and a formal investigation of the
alleged abuse was initiated.
‘‘On April 9, 2007, D.L. underwent a forensic interview
[conducted by Jessica Alejandro, a forensic interviewer
affiliated with the Child Guidance Clinic of Greater
Waterbury, Inc.], during which [D.L.] recounted in detail
the nature of the defendant’s sexually abusive behavior.
This interview was [video-recorded] in its entirety, and
the substance of D.L.’s statements during the interview
were later confirmed by the defendant himself in a
voluntary statement that he made to Waterbury police
detectives on May 18, 2007. Additionally, on May 21,
2007, D.L. underwent a physical examination that cor-
roborated further her account of the defendant’s sexu-
ally abusive behavior.
‘‘[When confronted with D.L.’s allegations, the defen-
dant confessed to having had vaginal intercourse and
oral sex with D.L. He then] was arrested and charged
in two separate informations with four counts of sexual
assault in the first degree in violation of § 53a-70 (a)
(2), four counts of risk of injury to a child in violation
of § 53-21 (a) (2) and two counts of risk of injury to a
child in violation of § 53-21 (a) (1).’’ (Footnote omitted.)
State v. Carrion, supra, 128 Conn. App. 48–49. The
informations were consolidated, and a jury found the
defendant guilty of four counts of sexual assault in the
first degree and four counts of risk of injury to a child.
On appeal to the Appellate Court from the judgments
of conviction, the defendant claimed that the trial court
improperly had permitted the state to introduce into
evidence the video recording of D.L.’s forensic inter-
view for substantive purposes because the statements
made by D.L. in that interview were ‘‘grievously unrelia-
ble’’ within the meaning of State v. Mukhtaar, 253 Conn.
280, 306–307, 750 A.2d 1059 (2000).7 State v. Carrion,
supra, 128 Conn. App. 49–50. The Appellate Court
rejected this claim, concluding that, although, in some
respects, the interview may not have comported with
certain standards for interviews of child sex abuse vic-
tims, ‘‘there [was] nothing so unduly coercive or
extreme about the circumstances of D.L.’s interview
that would serve to grievously undermine the reliability
generally inherent in such a statement, so as to render
it, in effect, not that of D.L. herself.’’ (Internal quotation
marks omitted.) Id., 53. For this reason, the Appellate
Court concluded that the trial court did not abuse its
discretion in permitting the state to use the video
recording for substantive purposes. Id., 53–54.
The defendant also claimed that the trial court
improperly had instructed the jury that ‘‘[t]he state . . .
does not want the conviction of an innocent person
. . . [as] [t]he state is as much concerned in having an
innocent person acquitted as in having a guilty person
convicted.’’ (Internal quotation marks omitted.) Id., 57.
Relying on State v. Kitchens, supra, 299 Conn. 482–83,
the Appellate Court determined that the defense implic-
itly had waived this unpreserved instructional claim.8
State v. Carrion, supra, 128 Conn. App. 60, 61.
On appeal to this court following our grant of certifi-
cation, the defendant claims that the Appellate Court
incorrectly concluded, first, that the trial court did not
abuse its discretion in overruling defense counsel’s
objection to the state’s use of the video recording of
D.L.’s forensic interview as substantive evidence of the
defendant’s guilt and, second, that the defense implicitly
waived the defendant’s right to raise a claim on appeal
challenging the trial court’s jury instruction that the
state wants to see an innocent person acquitted no less
than it wants to see a guilty person convicted. We reject
the defendant’s evidentiary claim for the same reasons
on which the Appellate Court relied, and, with respect
to his claim of instructional impropriety, we conclude
that the challenged instruction, viewed in light of the
instructions as a whole, did not violate his constitu-
tional right to a fair trial.9 Accordingly, we affirm the
judgment of the Appellate Court.
I
We first address the defendant’s contention that the
trial court incorrectly concluded that the video
recording of D.L.’s forensic interview was admissible
for substantive purposes. The defendant asserts that
Alejandro’s questioning of D.L. was so leading and sug-
gestive that D.L.’s statements in response to that ques-
tioning were wholly untrustworthy and, therefore, inad-
missible for substantive purposes under State v. Mukh-
taar, supra, 253 Conn. 306–307. See footnote 7 of this
opinion. In support of this assertion, the defendant con-
tends that Alejandro’s questioning of D.L. violated
accepted standards for conducting a forensic interview
of a child sexual abuse victim. According to the defen-
dant, these improprieties included Alejandro’s: (1)
repeated use of leading questions; (2) use of anatomi-
cally correct dolls in a suggestive manner; (3) act of
informing D.L. that a social worker and two police offi-
cers were observing the interview; and (4) failure to
validate D.L.’s statements. Although the state acknowl-
edges that Alejandro utilized one or more arguably
improper techniques during the course of her interview
with D.L., it maintains that the Appellate Court correctly
determined that the trial court reasonably had permit-
ted the state to use D.L.’s statements for substantive
purposes because those statements contained numer-
ous indicia of reliability, in particular: (1) D.L. made
multiple spontaneous statements concerning the sexual
abuse; (2) she sometimes corrected Alejandro; and (3)
she provided details of her abuse, including the identity
of the defendant, in response to nonleading questions.
We agree with the state.
The following additional facts and procedural history
are necessary to our resolution of the defendant’s claim.
Alejandro began the interview of D.L. by asking her
general questions about school, and her pets and sib-
lings. Next, Alejandro explained that their conversation
was being recorded and that a social worker and two
police officers were watching from the other side of a
one-way mirror. Alejandro also informed D.L. that she
should feel comfortable correcting Alejandro at any
time and confirmed that D.L. understood this instruc-
tion by asking, ‘‘[s]o you’re in the second grade,’’ to
which D.L. responded ‘‘[n]o, first.’’ Alejandro also
instructed D.L. that, if she did not know the answer to
a question, she should feel free to say so. In addition,
Alejandro confirmed that D.L. understood the differ-
ence between a truthful statement and a lie, and D.L.
expressed her understanding that people who tell lies
‘‘can get in trouble.’’
Thereafter, in response to a mix of leading, multiple-
choice and open-ended questions, D.L. told Alejandro
that the defendant did ‘‘something’’ to her multiple times
over the previous few months. D.L., however, was reluc-
tant to describe the details of the defendant’s conduct,
stating that the defendant had instructed her that he
would ‘‘get in trouble’’ if she told anyone about it.
Following this exchange, Alejandro showed D.L. two
anatomically correct dolls, one male and one female,
and confirmed that D.L. could properly identify the
dolls’ various body parts. By reference to the anatomy
of the female doll, Alejandro also elicited from D.L. that
certain areas of the doll’s body were ‘‘private parts’’
and that only D.L., her mother, or a physician was per-
mitted to touch D.L. in those places. Alejandro then
asked D.L. if she knew ‘‘someone [who] has a touching
problem and touches those parts when they’re not sup-
posed to?’’ D.L. responded by identifying the defendant.
Next, Alejandro asked D.L. to point both to the places
on the female doll where the defendant had touched
her and to the places on the male doll that corresponded
to the body parts that the defendant had used to touch
D.L. For purposes of this portion of the interview, Alej-
andro almost always held the dolls upright and facing
D.L. when questioning her, but Alejandro frequently
would lay them on a table for D.L. to handle on her
own before she answered Alejandro’s questions. D.L.
responded by pointing to different parts on the dolls
while they were on the table or, in some instances, in
Alejandro’s hands. At one point, in response to Ale-
jandro’s inquiry as to where the defendant had touched
her, D.L. pulled the female doll out of Alejandro’s hands,
flipped it over, and pointed to the buttocks. In response
to Alejandro’s questioning, and with reference to spe-
cific body parts, D.L. indicated that, on several occa-
sions, the defendant had forced her to have vaginal
intercourse and oral sex with him.
For the remainder of the interview, in response to a
series of questions posed by Alejandro that were similar
in form to the preceding questions, D.L. further
described the circumstances surrounding her encoun-
ters with the defendant in the months preceding the
interview. In addition, after D.L. revealed that the defen-
dant’s two brothers also had sexually abused her, Ale-
jandro questioned D.L. regarding her interactions with
the three men. Alejandro concluded the interview by
asking whether D.L. had ‘‘anything else that [she]
want[ed] to talk . . . about,’’ and D.L. answered in
the negative.
As the Appellate Court explained, ‘‘[p]rior to trial,
the defendant filed a motion in limine seeking to pre-
clude the state from admitting as evidence the [video-
recorded] interview of D.L. In support of this motion,
the defendant argued, inter alia, that the coercive nature
by which D.L.’s description of the sexual abuse was
procured rendered the . . . interview grievously unre-
liable and, therefore, inadmissible.
‘‘[The trial court thereafter conducted] an evidentiary
hearing . . . on the defendant’s motion, during which
the defendant presented the expert testimony of a clini-
cal psychologist, David M. Mantell. Mantell testified
that, in his professional opinion, ‘the validity of the
investigation techniques’ used during D.L.’s interview
were ‘so seriously marked from the best practices that
. . . they invalidate[d] the procedural integrity of the
[entire] evaluation.’ More precisely, Mantell criticized
the ‘suggestive techniques’ utilized by [Alejandro] dur-
ing D.L.’s examination . . . [which] he found ‘pro-
duce[d] results of a questionable memory . . . .’ ’’10
State v. Carrion, supra, 128 Conn. App. 50.
Mantell did acknowledge, however, that Alejandro
properly took some steps to reduce the potentially coer-
cive atmosphere of the interview, including (1) ques-
tioning D.L. in a ‘‘child friendly environment,’’ (2)
conducting a rapport building phase of the interview,
and (3) taking time to explain the general rules for the
interview. Mantell also conceded that certain state-
ments made by D.L. during the interview possessed the
indicia of reliability. For example, Mantell recognized
that D.L.’s willingness to correct Alejandro, along with
D.L.’s spontaneous utterances and use of appropriate
language for a child, indicated that her statements
reflected what D.L. actually recalled and believed and
were not merely the product of what she thought Alejan-
dro wanted to hear. Furthermore, Mantell stated that,
although Alejandro never specifically confirmed that
D.L. understood that the dolls used in the forensic inter-
view were intended to represent real people, children
over the age of five or six usually do appreciate that
fact. Finally, Mantell testified that, although the forensic
interview protocol that he designed forbids the use of
multiple-choice questions, another such protocol, the
RATAC protocol,11 permits the use of such questions.
At the conclusion of Mantell’s testimony, the trial
court denied the defendant’s motion in limine. The court
concluded that grievous unreliability ‘‘is a very high
standard that might . . . be met in a case [in which]
there was police misconduct and a statement was forc-
ibly taken from a suspect . . . . But, here, we have a
different situation, where a statement is taken in a clini-
cal environment, and we have a seven year old girl who
. . . ultimately told . . . her own story. Certainly,
there is enough . . . for the jury to consider whether
[it] should credit it or not, and the information and
testimony [adduced] by the defendant is really more
grist for the cross-examination mill than matter that
goes to the admissibility of the statement. . . . Man-
tell’s review, with the benefit of twenty-twenty hind-
sight and with a fine tooth comb, does show that some
questions could be better worded or [that] the interview
could be done in a better way, but not that the child’s
testimony was coerced. Some of this criticism—and
I’ve reviewed it carefully—of the questions, I find to be
somewhat picky or trifling. And any failure to . . .
comply with protocols or prevailing standards does not
necessarily connote grievous unreliability.’’
As the Appellate Court explained, ‘‘[d]uring the state’s
case-in-chief, D.L. testified as to the defendant’s sexu-
ally abusive behavior; however, her testimony in this
regard was often inconsistent with the details [that] she
[had] provided during her [video-recorded] interview.12
[In light of these inconsistencies], following D.L.’s testi-
mony, the state [sought] to introduce the portions of
the [video-recorded] interview that were inconsistent
with D.L.’s trial testimony as substantive evidence pur-
suant to State v. Whelan, [supra, 200 Conn. 753], and § 8-
5 of the Connecticut Code of Evidence.13 In response,
[defense counsel] argued that D.L.’s ‘statement[s] [dur-
ing the interview] were taken in such circumstances
that they undermine[d] the reliability of the state-
ment[s]’ and should be excluded under State v. Mukh-
taar, [supra, 253 Conn. 306–307]. The court [disagreed
with defense counsel and] granted the state’s request
to admit ‘those portions of the [video recording] that
[were] inconsistent with [D.L.’s] testimony,’ and, at the
behest of the [defense], the entire [video-recorded]
interview eventually was admitted and shown to the
jury . . . .’’ (Footnotes altered.) State v. Carrion,
supra, 128 Conn. App. 50–51. On cross-examination,
D.L. denied the truth of many of the statements that
she had made during the interview.14
The following principles guide our analysis of the
defendant’s claim. ‘‘It is well settled that . . . [a]n out-
of-court statement offered to prove the truth of the
matter asserted is hearsay and is generally inadmissible
unless an exception to the general rule applies. . . .
In State v. Whelan, supra, 200 Conn. 753, however, we
adopted a hearsay exception allowing the substantive
use of prior written inconsistent statements, signed by
the declarant, who has personal knowledge of the facts
stated, when the declarant testifies at trial and is subject
to cross-examination. This rule has also been codified
in § 8-5 (1) of the Connecticut Code of Evidence, which
incorporates all of the developments and clarifications
of the Whelan rule that have occurred since Whelan
was decided. . . . In addition to signed documents, the
Whelan rule also is applicable to tape-recorded state-
ments that otherwise satisfy its conditions.’’15 (Citations
omitted; footnote omitted; internal quotation marks
omitted.) State v. Simpson, 286 Conn. 634, 641–42, 945
A.2d 449 (2008).
‘‘[The] Whelan . . . hearsay exception [applies to] a
relatively narrow category of prior inconsistent state-
ments . . . [and is] carefully limited . . . to those
prior statements that carry such substantial indicia of
reliability as to warrant their substantive admissibility.
As with any statement that is admitted into evidence
under a hearsay exception, a statement that satisfies
the Whelan criteria may or may not be true in fact.
But, as with any other statement that qualifies under
a hearsay exception, it nevertheless is admissible to
establish the truth of the matter asserted because it
falls within a class of hearsay evidence that has been
deemed sufficiently trustworthy to merit such treat-
ment. Thus, as with all other admissible nonhearsay
evidence, we allow the fact finder to determine whether
the hearsay statement is credible upon consideration
of all the relevant circumstances. Consequently, once
the proponent of a prior inconsistent statement has
established that the statement satisfies the require-
ments of Whelan, that statement, like statements satis-
fying the requirements of other hearsay exceptions, is
presumptively admissible.’’ (Emphasis omitted.) State
v. Mukhtaar, supra, 253 Conn. 306.
A party seeking to exclude a Whelan statement, how-
ever, may make a preliminary showing of facts demon-
strating that the statement was ‘‘made under circum-
stances so unduly coercive or extreme as to grievously
undermine the reliability generally inherent in such a
statement, so as to render it, in effect, not that of the
witness.’’ Id. If a party makes such a showing, the court
should hold a hearing to determine whether, ‘‘in light
of the circumstances under which the statement was
made . . . the statement is so untrustworthy that its
admission into evidence would subvert the fairness of
the fact-finding process.’’ Id., 307 and n.27. Because this
is a demanding standard, ‘‘it will be the highly unusual
case in which a statement that meets the Whelan
requirements nevertheless must be kept from the jury.’’
Id., 307.
‘‘[T]he trial court’s decision [on the admissibility of
a Whelan statement] will be reversed only [when] abuse
of discretion is manifest or [when] an injustice appears
to have been done. . . . On review by this court, there-
fore, every reasonable presumption should be given in
favor of the trial court’s ruling.’’ (Internal quotation
marks omitted.) State v. Pierre, 277 Conn. 42, 56, 890
A.2d 474, cert. denied, 547 U.S. 1197, 126 S. Ct. 2873,
165 L. Ed. 2d 904 (2006). ‘‘Of course, the trial court’s
factual findings on this issue will not be disturbed on
appeal unless they are clearly erroneous.’’ State v.
Mukhtaar, supra, 253 Conn. 307 n.26.
In evaluating the reliability of statements made by a
child who is the subject of a forensic interview, this
court has recognized that, because ‘‘[y]oung children
are sensitive to the status and power of their interview-
ers and as a result are especially likely to comply with
the implicit and explicit agenda of such interviewers
. . . [c]hildren . . . are more willing to go along with
the wishes of adults and to incorporate adults’ beliefs
into their reports. . . . A critical finding of psychologi-
cal research is that young children, particularly pre-
school age children, appear to be more suggestible as
a basic psychological characteristic than older children
and adults.’’ (Citation omitted; internal quotation marks
omitted.) State v. Aponte, 249 Conn. 735, 750–51, 738
A.2d 117 (1999); see also Washington v. Schriver, 255
F.3d 45, 57 (2d Cir. 2001) (improper interviewing tech-
niques ‘‘can create a significant risk that the interroga-
tion itself will distort the child’s recollection of events,
thereby undermining the reliability of the statements
and subsequent testimony concerning such events’’
[internal quotation marks omitted]); State v. Michaels,
136 N.J. 299, 309, 642 A.2d 1372 (1994) (‘‘[T]he ‘investiga-
tive interview’ is a crucial, perhaps determinative,
moment in a child-sex-abuse case. . . . If a child’s rec-
ollection of events has been molded by an interrogation,
that influence undermines the reliability of the child’s
responses as an accurate recollection of actual events.’’
[Citations omitted.]). Courts have identified the follow-
ing nonexclusive factors, among others, as particularly
salient in determining the threshold reliability of a
child’s disclosure of sexual abuse during a forensic
interview: (1) the child’s age; (2) the child’s actions or
use of words outside the normal behavior or lexicon
of a child of a similar age; (3) the spontaneity of the
child’s statements; (4) the extent to which the inter-
viewer investigated alternative sources of the child’s
familiarity with sex; (5) the interviewer’s use of leading
or suggestive questions; (6) the nature of the abuse or
assault; (7) indications that the child has been coached;
and (8) the presence of a parent or authority figure.
See, e.g., State v. Merriam, 264 Conn. 617, 639, 835
A.2d 895 (2003) (identifying certain factors relevant to
determination of reliability of child’s statements elicited
during forensic interview of child); State v. Dollinger,
20 Conn. App. 530, 541, 568 A.2d 1058 (same), cert.
denied, 215 Conn. 805, 574 A.2d 220 (1990); State v.
Lanam, 459 N.W.2d 656, 661 (Minn. 1990) (same), cert.
denied, 498 U.S. 1033, 111 S. Ct. 693, 112 L. Ed. 2d 684
(1991); State v. Michaels, supra, 309–10 (same); State
v. Cameron, 168 Vt. 421, 425, 721 A.2d 493 (1998) (same).
Although some aspects of Alejandro’s questioning of
D.L. may have been unnecessarily or unduly suggestive,
we agree with the Appellate Court that the trial court
reasonably concluded that any shortcomings in the
manner in which the interview was conducted did not
render D.L.’s responses so unreliable that their admis-
sion into evidence subverted the fairness of the defen-
dant’s trial. For several reasons, we conclude that the
trial court reasonably determined that, under Whelan,
the state was entitled to have the jury view the video
recording of the interview. First, notwithstanding Ale-
jandro’s periodic use of leading questions, some of her
questioning was open-ended and nonleading, and D.L.
provided important information that was highly incrimi-
nating of the defendant in response to that neutral ques-
tioning. For example, in response to questions that were
not leading, D.L. stated that the defendant (1) had his
pants off during one encounter in which he took off
her clothes and touched her inappropriately, (2) warned
D.L. that he would ‘‘tell on [her] back’’ if she ever
revealed to others what he had done, (3) touched her
mouth with his ‘‘private,’’ (4) touched her ‘‘private’’ with
his mouth, and (5) touched her mouth with his tongue.
Second, D.L. made multiple spontaneous assertions
during the interview, which belies the claim that her
responses were the product of Alejandro’s suggestive
interview techniques. For example, after Alejandro
asked, ‘‘[s]o, [the defendant] and his other brother
would do the same thing that you’re telling me about,’’
D.L. replied ‘‘[u]m-hum,’’ but then continued: ‘‘They did
this like four times, maybe.’’ Similarly, in response to
a question as to where the abuse occurred, D.L. volun-
teered: ‘‘My sister and me used to be together, but I
didn’t like it.’’ Furthermore, while Alejandro was
explaining that it was important for D.L. to talk about
anything new or strange that she had observed with
her ‘‘private’’ so ‘‘that we can make an appointment
with a doctor,’’ D.L. responded by stating: ‘‘I did that
already.’’
Third, D.L. corrected Alejandro’s impressions of the
events in question on several occasions during the inter-
view, further demonstrating that she was not simply
providing answers that she thought Alejandro was seek-
ing. Instances in which D.L. did not confirm the facts as
framed by Alejandro, despite Alejandro’s use of leading
questions, included the following: (1) when Alejandro
asked D.L. whether the defendant’s ‘‘pants were all the
way off,’’ D.L. responded that they were ‘‘[m]ostly off’’;
(2) when Alejandro asked, ‘‘[a]nd then it happened
another time when there was no party,’’ D.L. responded,
‘‘[n]o . . . [i]t happened . . . at Christmas and fall’’;
(3) when Alejandro asked, ‘‘[n]ow, did [the defendant]
ever want you to touch his private with some other
part of your body besides your mouth and your private,’’
D.L. answered ‘‘[n]o’’; and (4) when Alejandro sought
to confirm, on the basis of D.L.’s previous statements,
that the defendant would touch D.L. in her room, D.L.
interrupted Alejandro and stated that it actually had
occurred in her brother’s room.
Mantell’s opinion that Alejandro used suggestive
techniques that produced results of a questionable
memory was undermined by his own concessions and
D.L.’s testimony. As we previously indicated, Mantell
identified each of the foregoing three considerations as
a factor tending to establish the reliability of a child’s
statements in response to questioning by a forensic
interviewer. Furthermore, although Mantell criticized
Alejandro’s use of multiple-choice questions, he con-
ceded that the RATAC protocol, which is used in many
jurisdictions and by some forensic interviewers in this
state, permits the use of such questions. Finally, D.L.’s
response to a number of questions in which she
explained that she did not know or could not remember
the answer further supports the conclusion that her
statements were her own and not a mere reflection of
what she believed Alejandro wanted to hear.
We conclude, therefore, consistent with the determi-
nation of the Appellate Court, that this is not one of
those ‘‘highly unusual’’ cases in which a statement that
otherwise satisfies the Whelan criteria nevertheless is
so inherently unreliable that it must be kept from the
jury. State v. Mukhtaar, supra, 253 Conn. 307. Although
Mantell identified what he characterized as the coercive
effects of Alejandro’s forensic interviewing techniques,
the Appellate Court correctly concluded that the trial
court did not abuse its discretion in determining that
D.L.’s interview responses were not so grievously unre-
liable that the jury should be precluded from conducting
its own assessment of their trustworthiness. See, e.g.,
id., 308 (declarant’s statement to police identifying
defendant was admissible under Whelan despite his
‘‘assertions that he was under the influence of narcotics
and felt pressured by the police to make both the state-
ment and the identification’’); State v. Hopkins, 222
Conn. 117, 125–26, 609 A.2d 236 (1992) (declarant’s
statement to police identifying defendant was suffi-
ciently reliable and admissible under Whelan, even
though, at time of declarant’s statement, she was under
influence of pain medication, reminded of criminal
charges pending against her, and told that defendant
was suspect in case); State v. Hersey, 78 Conn. App.
141, 147, 151–52, 826 A.2d 1183 (declarant’s claims of
being under influence of alcohol and ‘‘a myriad of psy-
chiatric and other medications’’ when making statement
were insufficient to demonstrate unreliability for pur-
poses of admitting statement under Whelan), cert.
denied, 266 Conn. 903, 832 A.2d 65 (2003); cf. State v.
Simpson, supra, 286 Conn. 644 and n.13 (trial court
admitted statements in video recorded forensic inter-
view of child victim of sexual assault under Whelan
even though interviewer used leading questions and
victim had ‘‘mental health problems that required medi-
cation and . . . [resulted in her] manipulative and
occasionally violent behavior’’).
Nonetheless, the defendant asserts that, as a general
matter, the state should not be permitted to use forensic
interviews of children under Whelan because there is no
effective way to cross-examine the child or otherwise
establish the unreliability of the child’s statements.
Although it may be challenging for a defendant to effec-
tively cross-examine a child witness concerning the
extent to which the child’s statements to a forensic
interviewer were the product of unduly suggestive ques-
tioning, the defendant is not without recourse to chal-
lenge the trustworthiness of those statements. Most
obviously, the defendant may inquire into the child’s
reasons for making the prior statements, and when, as
in the present case, the child’s prior statements directly
contradict certain aspects of his or her trial testimony,
that inconsistency itself could be used to cast doubt
on the child’s trustworthiness. No less important, the
defendant may present expert testimony explaining
why, in the expert’s view, the questioning of the victim
was so suggestive as to undermine the reliability of the
victim’s responses. This is precisely what the defense
did in the present case. At trial, Mantell, the defendant’s
expert, testified forcefully that Alejandro’s interview
techniques were so flawed that D.L.’s responses were
not reliable. Finally, the fact that the interview was
video recorded enhanced the ability of the defense,
through the testimony of Mantell, to demonstrate how,
in the defendant’s view, the suggestive interview tech-
niques employed by Alejandro undermined the reliabil-
ity of D.L.’s responses to Alejandro’s questioning. See,
e.g., State v. Rojas, 524 N.W.2d 659, 663 (Iowa 1994)
(‘‘videotape is more reliable than many other forms of
hearsay because the trier of fact [can] observe for itself
how the questions were asked, what the declarant said,
and the declarant’s demeanor’’), cert. denied, 514 U.S.
1119, 115 S. Ct. 1981, 131 L. Ed. 2d 869 (1995). We
therefore are satisfied that the defense had an adequate
opportunity, by virtue of Mantell’s testimony, to demon-
strate to the jury that it should not credit the statements
made by D.L. in response to Alejandro’s questioning.
II
The defendant also claims that the trial court improp-
erly instructed the jury that ‘‘[t]he state . . . does not
want the conviction of an innocent person. The state
is as much concerned in having an innocent person
acquitted as in having a guilty person convicted.’’
Although the defendant raised this unpreserved claim
in the Appellate Court, that court did not reach the
merits of the claim because it concluded that the defen-
dant had waived it under State v. Kitchens, supra, 299
Conn. 482–83. State v. Carrion, supra, 128 Conn. App.
60; see footnote 5 of this opinion. In the present appeal,
the defendant challenges that determination and further
argues that the charge was improper and deprived him
of a fair trial. We need not address the Kitchens waiver
issue, however, because, even if we assume, without
deciding, that Kitchens does not bar the defendant’s
claim, we conclude that the charge did not implicate
the fairness of his trial.
In support of his claim, the defendant asserts that
there is a reasonable likelihood that the instruction
improperly led the jury to believe that the court was
suggesting that the state would not have brought
charges against the defendant unless it strongly
believed that the defendant was guilty. In particular,
the defendant argues that the instruction ‘‘improperly
bolster[ed] the state’s credibility in the eyes of the
jur[ors] by placing the trial court’s imprimatur on . . .
the state’s case’’ and that ‘‘the probable effect of the
. . . charge was to dilute the presumption of inno-
cence, lower the burden of proof and invite the jury to
judge the defendant [on the basis of] the state’s sup-
posed good faith, rather than the evidence.’’ We are not
persuaded that the challenged instruction entitles the
defendant to a new trial.
As we frequently have stated, in evaluating a claim
of instructional impropriety, we must view the court’s
jury instructions as a whole, without focusing unduly
on one isolated aspect of the charge. E.g., State v. Del-
valle, 250 Conn. 466, 470, 736 A.2d 125 (1999). In
determining whether a jury instruction is improper, ‘‘the
charge . . . is not to be critically dissected for the pur-
pose of discovering possible inaccuracies of statement,
but it is to be considered rather as to its probable effect
[on] the jury in guiding [it] to a correct verdict in the
case.’’ (Internal quotation marks omitted.) Id. In addi-
tion, the defendant bears the burden of demonstrating
that it is reasonably possible that the jury was misled
by the charge. See State v. Lawrence, 282 Conn. 141,
179–81, 920 A.2d 236 (2007). In the present case, the
court’s thorough jury instructions accurately informed
the jury of the state’s burden of proof and the role of
the court and the jury. For example, the court cautioned
the jury prior to trial that the charging documents were
not evidence of the defendant’s guilt. The trial court
further instructed the jury in advance of the trial that
it would be asked to decide ‘‘whether the state has
proved beyond a reasonable doubt any or all of [the]
charges’’ and that the defendant had no obligation to
present any evidence.
In its instructions to the jury at the conclusion of
closing arguments, the trial court stated: ‘‘My actions
during the trial in . . . setting forth the law in these
instructions are not to be taken by you as any indication
of my opinion as to how you should determine the issues
of fact. The court is neutral and, in making rulings, is
merely trying to enforce the rules of evidence and trial
procedure.’’ The trial court next instructed the jury on
the various types of evidence, as well as the testimony
of expert witnesses, the defendant, and police officers.
The court thereafter explained the presumption of
innocence and the state’s burden of proof: ‘‘In this case,
as in all criminal prosecutions, the defendant is pre-
sumed to be innocent until proven guilty beyond a rea-
sonable doubt. This presumption of innocence was with
this defendant when he was first presented for trial in
this case. It continues with him throughout this trial,
unless and until such time as all evidence produced
here in the orderly conduct of the case, considered in
the light of these instructions of law, and deliberated
on by you in the jury room, satisfies you beyond a
reasonable doubt that he is guilty of an offense. If and
when the presumption of innocence has been overcome
by evidence proving beyond a reasonable doubt that
the accused is guilty of a crime charged, then it is the
sworn duty of the jury to enforce the law and to render
such a verdict. . . . The burden to prove the defendant
guilty of the crimes with which he is charged is on
the state. The defendant does not have to prove his
innocence. This means that the state must prove beyond
a reasonable doubt each and every element necessary
to constitute a crime charged.’’
The court subsequently explained the concept of rea-
sonable doubt and stated in relevant part: ‘‘[I]f there is
something in the evidence or lack of evidence that
leaves in the minds of the jurors, as reasonable men
and women, a reasonable doubt as to the guilt of the
accused, then the accused must be given the benefit of
that doubt and acquitted.’’ Following its explanation of
these general principles, the court instructed the jury
on the elements of the specific charges. In doing so,
the court reminded the jury more than twenty times
that, to find the defendant guilty of a crime, the jury
must determine that the state had proven the existence
of every element of the crime beyond a reasonable
doubt. The trial court then stated: ‘‘Please understand
that, if I pointed out certain evidence during the course
of these instructions, that was only to illustrate how
you might go about relating the evidence you have heard
to the instructions on the law.’’
Only after instructing the jury in this manner did the
trial court state as follows: ‘‘The defendant justly relies
on you to consider carefully all of the evidence and to
find him not guilty if the facts and law require such a
verdict. The state as well does not want the conviction
of an innocent person. The state is as much concerned
in having an innocent person acquitted as in having
a guilty person convicted. At the same time, the state
does look to you to uphold the law and to render a
verdict of guilty if the facts and law require such a
verdict.’’ (Emphasis added.)
A fair reading of the trial court’s entire jury charge
reveals that, contrary to the defendant’s claim, it is
not reasonably possible that the challenged language
improperly led the jury to believe that the court was
vouching for the state. The trial court did not instruct
the jury that the state only prosecutes guilty people;
the court asserted, rather, that the state does not desire
the conviction of an innocent person. When viewed in
the context of the entire charge, it is likely that the
contested instruction merely served to underscore the
state’s burden of proving the defendant guilty beyond
a reasonable doubt and that only if the state did so
could the jury find the defendant guilty. Consequently,
the defendant has not demonstrated that the charge
deprived him of a fair trial.16
We do agree with the defendant, however, that the
challenged language, when viewed in isolation or
unsupported by instructions such as those given in the
present case, potentially could be misconstrued to sug-
gest that the state does not bring charges against inno-
cent individuals and, therefore, that the defendant must
be guilty. Insofar as the instruction may be interpreted
as informing the jury of the subjective beliefs of the
state, those beliefs are not a proper consideration for
the jury. We therefore share the view, expressed repeat-
edly by the Appellate Court, that, because the charge
‘‘possibly is susceptible of an unacceptable interpreta-
tion . . . [it should] be omitted from all jury instruc-
tions in the future.’’ State v. Wilson, 71 Conn. App. 110,
120–21, 800 A.2d 653, cert. denied, 262 Conn. 905, 810
A.2d 272 (2002).17 We think that this admonition is par-
ticularly appropriate because, although the instruction
is intended to aid the defendant by highlighting the fact
that the presumption of innocence and the state’s heavy
burden of proof are designed to ensure that only guilty
persons are convicted, the charge possibly might be
misunderstood to undermine these principles. Accord-
ingly, we exercise our supervisory authority over the
administration of justice to direct that our trial courts
refrain from giving the challenged portion of the charge.
Because, however, the instruction did not violate the
defendant’s right to a fair trial, his claim must fail.
Finally, we take this opportunity to address the con-
cerns expressed by Justice Zarella in his concurring
opinion with respect to the use of our supervisory
authority in the present and similar future cases. As
Justice Zarella acknowledges, in State v. Elson, 311
Conn. 726, 91 A.3d 862 (2014), we recently explained
that the cases in which this court has invoked its super-
visory authority ‘‘can be divided into two different cate-
gories. In the first category are cases [in which] we
have utilized our supervisory power[s] to articulate a
procedural rule as a matter of policy, either as holding
or dictum, but without reversing convictions or portions
thereof. In the second category are cases [in which] we
have utilized our supervisory powers to articulate a
rule or otherwise take measures necessary to remedy
a perceived injustice with respect to a preserved or
unpreserved claim on appeal. Although we recently
have noted that, ‘[o]ur cases have not always been clear
as to the reason for this distinction’; State v. Diaz, 302
Conn. 93, 107 n.11, 25 A.3d 594 (2011); a review of the
cases in both categories demonstrates that, in contrast
to the second category, the first category consists of
cases [in which] there was no perceived or actual injus-
tice apparent on the record, but the facts of the case
lent themselves to the articulation of prophylactic pro-
cedural rules that might well avert such problems in
the future.’’ State v. Elson, supra, 768–69 n.30. Of course,
the present case falls into the first category.
According to Justice Zarella, ‘‘the invocation of super-
visory authority in [these two types] of cases should
be governed by the same limiting principles. That is, in
every case in which this court considers whether to
invoke its supervisory authority, the court should con-
sider (1) whether traditional protections are adequate
to ensure the fair and just administration of the courts,
and (2) whether the issue presented affects the per-
ceived fairness of the system as a whole.’’ Consistent
with this assertion, Justice Zarella also expresses the
view that the use of our supervisory authority in both
categories of cases constitutes an ‘‘extraordinary rem-
edy,’’ to be invoked only in rare circumstances, ‘‘regard-
less of whether an individual defendant’s conviction
is reversed.’’
We disagree with Justice Zarella that the same strin-
gent standard applies both to cases, like the present
one, in which we adopt a prophylactic rule for future
cases only, and to cases in which we reverse a convic-
tion in the exercise of our supervisory authority in order
to avoid an injustice. For purposes of the second cate-
gory of cases—cases in which we reverse a convic-
tion—the defendant must establish that the invocation
of our supervisory authority is truly necessary because
‘‘[o]ur supervisory powers are not a last bastion of hope
for every untenable appeal.’’ (Internal quotation marks
omitted.) State v. Reynolds, 264 Conn. 1, 215, 836 A.2d
224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614,
158 L. Ed. 2d 254 (2004). In such circumstances, the
exercise of our supervisory powers is ‘‘an extraordi-
nary remedy to be invoked only when circumstances
are such that the issue at hand, while not rising to the
level of a constitutional violation, is nonetheless of [the]
utmost seriousness, not only for the integrity of a partic-
ular trial but also for the perceived fairness of the judi-
cial system as a whole.’’ (Emphasis in original; internal
quotation marks omitted.) Id. Because ‘‘[c]onstitutional,
statutory and procedural limitations are generally ade-
quate to protect the rights of the defendant and the
integrity of the judicial system,’’ this court will invoke
its supervisory powers to reverse a conviction ‘‘only
in the rare circumstance [in which] these traditional
protections are inadequate to ensure the fair and just
administration of the courts.’’ (Internal quotation marks
omitted.) State v. Coward, 292 Conn. 296, 315, 972 A.2d
691 (2009). This demanding standard is perfectly appro-
priate when we are asked to reverse a conviction under
our supervisory powers.
The first category of cases, however, presents an
entirely different set of circumstances. We invoke our
supervisory authority in such a case, as we do here,
not because the use of that authority is necessary to
ensure that justice is achieved in the particular case.
Rather, we have determined that the defendant in that
case received a fair trial and therefore is not entitled to
the extraordinary remedy of a new trial. Nevertheless, it
may be appropriate, in such circumstances, to direct
our trial courts to conduct themselves in a particular
manner so as to promote fairness, both perceived and
actual, in future cases. As we tacitly have recognized
by invoking our supervisory authority in such cases,
because we are not imposing any remedy in the case—
let alone the extraordinary remedy of a new trial—
there is no need for this court to justify the use of
extraordinary measures prior to exercising its supervi-
sory authority. Rather, as we explained in Elson, we are
free to invoke our supervisory authority prospectively
when prudence and good sense so dictate. See State v.
Elson, supra, 311 Conn. 769 n.30 (explaining that this
court’s exercise of its supervisory authority to articulate
prophylactic procedural rule for future cases is appro-
priate when such rule ‘‘might well avert . . . problems
in the future’’).
Thus, we frequently have invoked our supervisory
authority to direct our trial courts to follow certain
procedures in the future, and many of these cases
involve jury instructions. We did so most recently in
State v. Medrano, 308 Conn. 604, 65 A.3d 503 (2013),
in which we invoked our supervisory authority to
‘‘direct our trial courts in the future to refrain from
instructing jurors, when a defendant testifies, that they
may specifically consider the defendant’s interest in the
outcome of the case and the importance to him of the
outcome of the trial. Instead, we [directed] the trial
courts to use the general credibility instruction [con-
cerning] a criminal defendant who testifies.’’ Id., 631;
see also State v. Ledbetter, 275 Conn. 534, 578–79, 881
A.2d 290 (2005) (invoking supervisory authority in
requiring jury instruction concerning certain risks of
misidentification that are inherent in eyewitness identi-
fication evidence), cert. denied, 547 U.S. 1082, 126 S.
Ct. 1798, 164 L. Ed. 2d 537 (2006); State v. O’Neil, 261
Conn. 49, 74–76, 801 A.2d 730 (2002) (invoking supervi-
sory authority in revising and directing specific version
of ‘‘Chip Smith’’ charge in future cases); State v. Aponte,
259 Conn. 512, 522, 790 A.2d 457 (2002) (invoking super-
visory authority in prohibiting jury instruction in future
cases that ‘‘one who uses a dangerous weapon on the
vital part of another ‘will be deemed to have intended’
the probable result of that act and that from such a
circumstance the intent to kill properly may be
inferred’’); State v. Griffin, 253 Conn. 195, 209–10, 749
A.2d 1192 (2000) (invoking supervisory authority in pro-
hibiting future use of ‘‘two-inference’’ jury instruction);
State v. Delvalle, supra, 250 Conn. 475–76 (invoking
supervisory authority to bar use of jury instruction that
reasonable doubt is not doubt suggested by ‘‘ingenuity
of counsel’’ [internal quotation marks omitted]); State
v. Schiappa, 248 Conn. 132, 168, 175, 728 A.2d 466
(invoking supervisory authority in prohibiting use of
jury instruction that requirement of proof beyond rea-
sonable doubt is rule designed ‘‘to protect the innocent
and not the guilty’’ [internal quotation marks omitted]),
cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d
129 (1999). Like the foregoing cases, the present case
is an appropriate one for us to invoke our supervisory
authority so that the risk that the challenged instruction
will mislead a future jury is eliminated.
The judgment of the Appellate Court is affirmed.
In this opinion ROGERS, C. J., and EVELEIGH and
McDONALD, Js., concurred.
1
The charges against the defendant were based on events that occurred
between January, 2005, and March, 2007. Thus, either the 2005 or the 2007
revision of § 53-21 (a) (2) would have been applicable to the defendant’s
conduct. Because the 2005 and 2007 revisions of § 53-21 (a) (2) are identical,
we refer to the 2005 revision in the interest of simplicity. All references to
§ 53-21 in this opinion are to the 2005 revision.
2
The trial court sentenced the defendant to a total effective term of thirty
years imprisonment, execution suspended after twenty-three years, and ten
years probation.
3
As we discuss more fully hereinafter, in Whelan, this court held that a
prior written inconsistent statement of a nonparty witness is admissible for
substantive purposes if the statement is signed by the declarant, who has
personal knowledge of the facts stated, and the declarant testifies at trial
and is available for cross-examination. See State v. Whelan, supra, 200 Conn.
753. This rule later was expanded to apply to tape-recorded statements that
otherwise satisfy the Whelan criteria. E.g., State v. Simpson, 286 Conn. 634,
642, 945 A.2d 449 (2008).
4
In accordance with our policy of protecting the privacy interests of
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.
5
In Kitchens, this court held that, ‘‘when the trial court provides counsel
with a copy of the proposed jury instructions, allows a meaningful opportu-
nity for their review, solicits comments from counsel regarding changes or
modifications and counsel affirmatively accepts the instructions proposed
or given, the defendant may be deemed to have knowledge of any potential
flaws therein and to have waived implicitly the constitutional right to chal-
lenge the instructions on direct appeal.’’ State v. Kitchens, supra, 299 Conn.
482–83. Ordinarily, in the absence of such a waiver, a claim of instructional
impropriety is reviewable, even if it was not raised in the trial court, if, inter
alia, the claim is of constitutional magnitude. See State v. Golding, 213
Conn. 233, 239–40, 567 A.2d 823 (1989).
6
See Practice Book § 84-11.
7
In Mukhtaar, this court held that a prior inconsistent statement that
otherwise satisfies the criteria for substantive admissibility set forth in State
v. Whelan, supra, 200 Conn. 753; see footnote 3 of this opinion; nevertheless
may be inadmissible if it was ‘‘made under circumstances so unduly coercive
or extreme as to grievously undermine the reliability generally inherent in
such a statement, so as to render it, in effect, not that of the witness.’’ State
v. Mukhtaar, supra, 253 Conn. 306.
8
Specifically, the Appellate Court concluded that, ‘‘[n]ot only was defense
counsel given an opportunity to review ‘in substance’ the court’s charge
before it was delivered to the [jurors], but the court also afforded defense
counsel the opportunity to object to any portion of the charge after the jury
instructions had been given. At no time, either before or after the instructions
were delivered, did defense counsel object to the specific language . . .
challenged by the defendant for the first time on appeal. Moreover, in
concluding that defense counsel ‘acquiesced in, or . . . engaged in . . .
conduct consistent with acceptance of the instruction[s]’; [State v. Kitchens,
supra, 299 Conn. 477]; [the Appellate Court found] it telling that an objection
was raised with respect to other aspects of the court’s charge, other than
the instruction that is . . . claimed to be improper.’’ State v. Carrion, supra,
128 Conn. App. 60.
9
On appeal to the Appellate Court, the defendant also claimed that the
trial court improperly had consolidated the two informations, one of which
was based on his alleged sexual abuse of D.L. in Prospect and the other of
which was based on his alleged sexual abuse of D.L. in Waterbury. State v.
Carrion, supra, 128 Conn. App. 54. The Appellate Court rejected this claim;
id., 57; and the defendant has not challenged that determination on appeal
to this court.
10
Specifically, Mantell testified that the integrity of the interview was
seriously undermined because, among other reasons, Alejandro (1) failed
to devote enough time to the rapport building phase of the interview, (2)
failed to ensure that D.L. fully understood the rules that Alejandro had
established for the interview, (3) may have caused D.L. to say what she
thought Alejandro wanted to hear by telling D.L. that two police officers
and a social worker were observing the interview, (4) used mostly leading
and multiple choice questions, (5) suggested to D.L. that she had her own
reasons for talking to Alejandro by asking, ‘‘what did you come [here] to
talk to me about,’’ (6) established an alliance with D.L.’s mother by asking,
‘‘[n]ow, I know that the first person you told was your mom, right,’’ (7) used
the anatomically correct dolls to obtain a narrative from D.L. as to what
had happened to her instead of using them solely to assist D.L. in elaborating
on a prior narrative, (8) failed to ensure that D.L. understood that the dolls
represented herself and the defendant, (9) used the dolls in a suggestive
manner by posturing them feet and genitals first and, at one point in the
interview, pushing a doll toward D.L. when she was unresponsive to a
question, (10) failed to question D.L. adequately about her claim that the
defendant’s brothers also had sexually abused her, (11) failed to determine
whether D.L.’s knowledge of sex came from a source other than the defen-
dant, and (12) lied to D.L. by telling her that, if D.L. so requested, Alejandro
would not disclose to D.L.’s mother what D.L. had related during the
interview.
11
The RATAC protocol, which was developed by the CornerHouse Child
Abuse Evaluation and Training Center, is named after a mnemonic device
for the five phases that the protocol directs forensic interviewers to apply
when questioning children: rapport, anatomy identification, touch inquiry,
abuse scenario, and closure. See, e.g., J. Anderson et al., ‘‘The CornerHouse
Forensic Interview Protocol: RATAC,’’ 12 T.M. Cooley J. Prac. & Clinical L.
193, 202 (2010). According to Mantell, the RATAC protocol is used by forensic
interviewers in seventeen states, including some interviewers in Con-
necticut.
12
For example, D.L. testified on direct examination that the defendant
never had touched her body with his mouth and vice versa, and that the
defendant had touched her with his penis only one time.
13
Section 8-5 of the 2009 edition of the Connecticut Code of Evidence
provides in relevant part: ‘‘The following are not excluded by the hearsay
rule, provided the declarant is available for cross-examination at trial:
‘‘(1) Prior inconsistent statement. A prior inconsistent statement of a
witness, provided (A) the statement is in writing or otherwise recorded by
audiotape, videotape or some other equally reliable medium, (B) the writing
or recording is duly authenticated as that of the witness, and (C) the witness
has personal knowledge of the contents of the statement. . . .’’
14
For example, D.L. denied both that she had her clothes off when she
encountered the defendant and that she and the defendant had engaged in
oral contact with one another.
15
In the present case, it is undisputed that D.L.’s statements in the video-
recorded forensic interview satisfied the threshold Whelan criteria.
16
The defendant also contends that the charge entitles him to a new trial
under the plain error doctrine. See Practice Book § 60-5 (‘‘[t]he court may
in the interests of justice notice plain error not brought to the attention of the
trial court’’). Plain error review, however, ‘‘is reserved for truly extraordinary
situations [in which] the existence of the error is so obvious that it affects the
fairness and integrity of and public confidence in the judicial proceedings.’’
(Internal quotation marks omitted.) State v. Myers, 290 Conn. 278, 287–88,
963 A.2d 11 (2009). The defendant’s plain error claim fails in light of our
determination that the instruction did not undermine the fairness of his trial.
17
In addition, see State v. Elson, 116 Conn. App. 196, 225, 975 A.2d 678
(2009) (reaffirming Wilson’s admonishment that trial courts should not
instruct juries that ‘‘[t]he state, as well, does not want the conviction of an
innocent person’’ as ‘‘[t]he state is as much concerned in having an innocent
person acquitted as in having a guilty person convicted’’ [internal quotation
marks omitted]), superseded in part en banc on other grounds, 125 Conn.
App. 328, 9 A.3d 731 (2010), rev’d on other grounds, 311 Conn. 726, 91 A.3d
862 (2014), State v. McCarthy, 105 Conn. App. 596, 621, 624–25, 625–26 n.7,
939 A.2d 1195 (concluding that trial court improperly instructed jury that
‘‘ ‘the state does not want to see the innocent convicted’ ’’ but finding no
constitutional violation and declining to reverse conviction under plain error
doctrine or on basis of supervisory powers), cert. denied, 286 Conn. 913,
944 A.2d 983 (2008), State v. Pauling, 102 Conn. App. 556, 573–76, 925 A.2d
1200 (noting that trial court failed to heed holding in Wilson when instructing
jury that ‘‘ ‘[t]he state is as much concerned [in] having innocent people
acquitted as [in] having a guilty person punished’ ’’ but concluding that use
of such language did not violate defendant’s constitutional rights), cert.
denied, 284 Conn. 924, 933 A.2d 727 (2007), State v. Marshall, 83 Conn. App.
418, 431, 850 A.2d 1066 (no constitutional violation when jury was instructed
that ‘‘[t]he state does not desire a conviction of an innocent person or any
person whose guilt upon the evidence is in the realm of reasonable doubt’’
as ‘‘[t]he state has as much concern in having an innocent person acquitted
as in having a guilty person punished’’ [internal quotation marks omitted]),
cert. denied, 271 Conn. 904, 859 A.2d 564 (2004), and State v. Torres, 82
Conn. App. 823, 835–36, 847 A.2d 1022 (jury instruction that ‘‘[t]he state, as
well, does not want the conviction of an innocent person’’ as ‘‘[t]he state
is as much concerned in having an innocent person acquitted as in having
a guilty person convicted’’ did not violate defendant’s constitutional rights
[emphasis omitted; internal quotation marks omitted]), cert. denied, 270
Conn. 909, 853 A.2d 525 (2004).