State v. Griswold

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STATE OF CONNECTICUT v. JODY GRISWOLD
(AC 35743)
DiPentima, C. J., and Prescott and Flynn, Js.
Argued February 17—officially released October 20, 2015
(Appeal from Superior Court, judicial district of
Hartford, geographical area number twelve, Fuger, J.)
Alice Osedach, assistant public defender, with whom
was Alexander Ahrens, certified legal intern, for the
appellant (defendant).
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and Anthony J. Spinella, assistant state’s attorney,
for the appellee (state).
Opinion
PRESCOTT, J. A jury found the defendant, Jody Gris-
wold, guilty of two counts of sexual assault in the fourth
degree in violation of General Statutes § 53a-73a (a) (1)
(A) and two counts of risk of injury to a child in violation
of General Statutes § 53-21. During his trial and over
his objection, the trial court admitted video recordings
of forensic interviews of the two victims,1 as well as
written summaries of the interviews, under the tender
years and medical diagnosis and treatment exceptions
to the hearsay rule. The defendant now appeals from
the judgment of conviction, claiming that (1) the court
improperly admitted the videos and summaries in viola-
tion of the standard set forth in State v. Maguire, 310
Conn. 535, 78 A.3d 828 (2013), a decision released by
our Supreme Court after the defendant’s trial, and (2)
prosecutorial impropriety deprived him of his right to
a fair trial.
We agree with the defendant that, pursuant to the
stringent standard explicated in Maguire, the court
improperly admitted the videos of the forensic inter-
views and their attendant written summaries under the
tender years exception to the hearsay rule. Neverthe-
less, we conclude that the court properly admitted the
videos and summaries under the medical diagnosis and
treatment exception. We further conclude that prosecu-
torial impropriety did not deprive the defendant of his
right to a fair trial. Accordingly, we affirm the judgment
of the trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. The defendant
was arrested after the victims, J, age eight, and her
sister, A, age ten, accused him of touching them inap-
propriately at a pool party hosted by their mother, a
childhood friend of the defendant. The victims alleged
that the defendant exposed his penis to J, touched her
vagina over her bathing suit, and touched A’s chest over
her bra but under her clothing while alone with the
victims in A’s bedroom. They further reported that the
defendant committed similar acts during a camping trip
when he rubbed J’s chest under her clothes and exposed
himself to A.
Shortly after reporting the defendant’s conduct to
their mother, A and J underwent forensic interviews
by members of a multidisciplinary investigative team
(MIT)2 at the Greater Hartford Children’s Advocacy
Center (advocacy center) at Saint Francis Hospital and
Medical Center in Hartford. Lisa S. Murphy-Cipolla, the
clinical child interview supervisor at the advocacy cen-
ter, interviewed A. Erin Byrne, a clinical child interview
specialist, interviewed J. Both victims repeated their
allegations against the defendant during their respective
interviews. In accord with the advocacy center’s stan-
dard practice, the interviews were video recorded, and
DVD copies were provided to the state.
The defendant subsequently moved in limine to pre-
clude the state from introducing A’s and J’s forensic
interview videos during trial, arguing that they consti-
tuted inadmissible hearsay and were unfairly prejudicial
to him. The state responded that the videos were admis-
sible under two exceptions to the hearsay rule: the
tender years exception, codified in § 8-10 of the Con-
necticut Code of Evidence, and the medical diagnosis
and treatment exception, codified in § 8-3 (5) of the
Connecticut Code of Evidence. In accordance with the
provisions of § 8-10 of the Connecticut Code of Evi-
dence, the trial court, Fuger, J., held a hearing outside
the presence of the jury to determine the videos’ admis-
sibility.
At the hearing, both Murphy-Cipolla and Byrne testi-
fied with respect to the interview process at the advo-
cacy center. Murphy-Cipolla testified substantially to
the following: the advocacy center conducts interviews
of children alleging abuse to ‘‘elicit clear and accurate
information, minimize any additional trauma, and make
recommendations for a medical exam and/or mental
health treatment.’’ The advocacy center tapes inter-
views for two primary reasons: first, so that the children
‘‘don’t have to talk over and over and over again,’’ and
second, to provide a reference for the interviewers
when they create their reports. Although Murphy-
Cipolla is not employed by any police department, she
meets with law enforcement officers and employees of
the Department of Children and Families (department)
before each interview. Law enforcement officers and
department employees then observe the interview as
it takes place through a one-way mirror. In this case,
a detective from the East Hartford Police Department
and an investigative social worker from the department
observed A’s interview. At the interview’s conclusion,
Murphy-Cipolla confers with the investigators again to
‘‘make sure that [they] hear the same things’’ and to
solicit additional questions from them. Consistent with
this practice, Murphy-Cipolla consulted with the detec-
tive and social worker observing A’s interview, although
she could not recall the content of their discussion. At
the conclusion of each interview, the child is offered a
physical examination and receives a recommendation
for mental health evaluation. Following A’s interview,
Murphy-Cipolla recommended that she receive counsel-
ing and a medical evaluation.
Byrne testified that interviews are conducted ‘‘[t]o
gather information for medical purposes,’’ a point she
emphasized repeatedly throughout her testimony. She
stated that the primary purpose of videotaping inter-
views is ‘‘to reduce trauma so that the children don’t
have to be reinterviewed’’ and ‘‘so that the video can
serve as the child’s statement.’’ Byrne further elabo-
rated that ‘‘part of the reason why [the advocacy center]
videotape[s] the interview is so that it would serve as
a child’s . . . statement in the event that something
. . . may go to a next level.’’ She explained that law
enforcement officials and department investigators
observe interviews through a one-way mirror ‘‘to reduce
the trauma to the child so they don’t have to be rein-
terviewed by anyone else.’’ Like Murphy-Cipolla, Byrne
also testified that at each interview’s conclusion, she
consults with the law enforcement officials and depart-
ment investigators who observed the interview to deter-
mine whether they ‘‘have anything else that [they] think
that [she] should ask,’’ a practice she adhered to during
her interview with J. During cross-examination by
defense counsel, Byrne recalled asking only one ques-
tion about J’s physical health, specifically, ‘‘if she had
any worries about her body.’’ She additionally admitted
that these questions are typically asked at the end of
each interview. Murphy-Cipolla recalled recommending
that J receive counseling and that J had received a
medical examination at the advocacy center following
her interview. Finally, Murphy-Cipolla confirmed that
law enforcement and department investigators receive
video copies of interviews for use in their investigations.
At the conclusion of the hearing, the court denied
the defendant’s motion in limine, concluding that both
the tender years exception and the medical diagnosis
and treatment exception to the hearsay rule were appli-
cable. In announcing its ruling, the court specifically
found that the statements in the videos were made
shortly after the alleged incident, that they contained
guarantees of trustworthiness based on the testimony
of Murphy-Cipolla and Byrne, and that the videos were
not made in preparation for a legal proceeding.
Pursuant to the court’s ruling, and after A and J testi-
fied at trial, the state played portions of the forensic
interview videos for the jury.3 Additionally, the court
admitted, over the defendant’s objection, written inter-
view summaries created by Murphy-Cipolla and Byrne
following their interviews of the victims. The jury subse-
quently found the defendant guilty of two counts of
sexual assault in the fourth degree and two counts of
risk of injury to a child. The court rendered judgment
in accordance with the jury’s verdict and imposed a
total effective sentence of forty years incarceration,
execution suspended after twenty years, and ten years
probation. This appeal followed. Additional facts shall
be set forth as needed.
The defendant raises two claims on appeal. First, he
claims that the court improperly admitted videos of the
victims’ forensic interviews and the interview summar-
ies. Second, he claims that the prosecutor made several
improper statements to the jury during the state’s rebut-
tal argument and thereby deprived him of his right to
a fair trial. For the following reasons, we reject both
of these claims.
I
ADMISSION OF FORENSIC INTERVIEW
VIDEOS AND SUMMARIES
The defendant first claims that the court improperly
admitted the videos of the victims’ forensic interviews,
as well as the interview summaries generated by Mur-
phy-Cipolla and Byrne, under the tender years and medi-
cal diagnosis and treatment exceptions to the hearsay
rule.4 More specifically, he claims that, pursuant to the
objective standard described in State v. Maguire, supra,
310 Conn. 535, the videos and summaries contain testi-
monial hearsay and, therefore, fall outside both of the
hearsay exceptions relied upon by the state. The state
argues in response that the videos and accompanying
summaries do not contain testimonial hearsay because
the essential purpose of the interviews was to provide
the victims with medical treatment. Alternatively, the
state contends that any error in admitting the videos
or summaries was harmless. We agree with the defen-
dant that the court improperly admitted the videos of
the victims’ forensic interviews, as well as the interview
summaries, under the tender years exception of the
hearsay rule. We disagree with the defendant, however,
that the court improperly admitted the videos and sum-
maries under the medical diagnosis and treatment
exception.
We begin our analysis of the defendant’s claim by
setting forth the standard of review and relevant legal
principles. ‘‘To the extent [that] a trial court’s admission
of evidence is based on an interpretation of the Code
of Evidence, our standard of review is plenary. For
example, whether a challenged statement properly may
be classified as hearsay and whether a hearsay excep-
tion properly is identified are legal questions demanding
plenary review. . . . We review the trial court’s deci-
sion to admit evidence, if premised on a correct view
of the law, however, for an abuse of discretion. . . .
In other words, only after a trial court has made the
legal determination that a particular statement is or is
not hearsay, or is subject to a hearsay exception, is it
vested with the discretion to admit or to bar the evi-
dence based upon relevancy, prejudice, or other legally
appropriate grounds related to the rule of evidence
under which admission is being sought.’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Miguel
C., 305 Conn. 562, 571–72, 46 A.3d 126 (2012).
With respect to the merits of the defendant’s claim,
‘‘[i]t 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 excep-
tion to the general rule applies.’’ (Internal quotation
marks omitted.) State v. Carrion, 313 Conn. 823, 837,
100 A.3d 361 (2014). Section 8-10 of the Connecticut
Code of Evidence,5 known as the tender years excep-
tion, excepts from the hearsay rule a ‘‘statement by a
child under thirteen years of age relating to a sexual
offense committed against that child, or an offense
involving physical abuse committed against that child
by a person or persons who had authority or apparent
authority over the child,’’ provided, inter alia, ‘‘the state-
ment was not made in preparation for a legal proceeding
. . . .’’ Similarly, § 8-3 (5) of the Connecticut Code of
Evidence6 provides that statements made for the pur-
pose of obtaining a medical diagnosis or treatment are
not precluded from admission by the hearsay rule. We
address the applicability of each of these exceptions
in turn.7
A
Tender Years Exception
Our Supreme Court has previously recognized that
the tender years exception to the hearsay rule must be
applied ‘‘consistently with the sixth amendment bar
against testimonial hearsay, as explained in Crawford
[v. Washington, 541 U.S. 36, 68–69, 124 S. Ct. 1354, 158
L. Ed. 2d 177 (2004)].’’8 State v. Maguire, supra, 310
Conn. 564–65. As the court explained, the ‘‘[t]he prohibi-
tion of the tender years exception against statements
made in preparation of a legal proceeding is simply
another way of saying that, to be admissible, the state-
ment must be nontestimonial for purposes of Craw-
ford.’’ Id., 565. Thus, ‘‘the standard of admissibility
under Crawford is the same as the standard to be
applied under the tender years exception.’’ Id. The
requirement for admission under this exception that
the statement be nontestimonial applies even in cases
that do not raise a confrontation clause issue.
The task of determining whether a statement is testi-
monial has not always been straightforward, due in
large part to the continually evolving nature of the
United States Supreme Court’s Crawford jurispru-
dence. At the time that the trial court in the present
case considered the issue, the leading Connecticut case
addressing the admissibility of statements made during
forensic interviews was State v. Arroyo, 284 Conn. 597,
935 A.2d 975 (2007). In that case, our Supreme Court
determined that statements made during the course of
a forensic interview of a minor victim of a sexual assault
were nontestimonial and, therefore, not barred by the
confrontation clause of the sixth amendment. Id., 616.
Because Arroyo served as highly pertinent authority at
the time of the trial court’s ruling on the defendant’s
motion in limine in the present case, we discuss it, as
well as subsequent cases implicating the court’s analy-
sis in Arroyo, in detail here.
The five year old victim in Arroyo was examined
at Yale-New Haven Hospital after complaining to her
mother about irritation in her vaginal area, as well as
various other symptoms. Id., 602. The hospital initially
diagnosed her with a urinary tract infection and pre-
scribed antibiotics; id.; but her symptoms persisted and
she subsequently returned for further treatment. Id.,
602–603. Following testing, medical personnel deter-
mined the cause of the victim’s symptoms to be chla-
mydia. Id., 603. Despite additional antibiotics, the
victim’s symptoms continued for approximately five
more months. Id.
During this time, various hospital personnel, social
workers, the victim’s kindergarten teacher, and an
investigator for the department interviewed the victim.
Id. After the victim tested positive for chlamydia a sec-
ond time, the department investigator took the victim
to the Yale Sexual Abuse Clinic (clinic) at Yale-New
Haven Hospital, where she was interviewed on three
occasions by a forensic interviewer. Id., 603–606. At
least two of these interviews were recorded using a
recording device provided by the police, and a member
of law enforcement observed the interviews through a
one-way mirror as they occurred. Id., 626. During the
third interview, the victim described several instances
in which the defendant had sexually assaulted her. Id.,
605–606. The state subsequently charged the defendant
with, inter alia, sexual assault in the first degree and
risk of injury to a child. Id., 607.
At the defendant’s trial, the court admitted the state-
ments made by the victim during her forensic inter-
views. Id., 625. The jury thereafter found the defendant
guilty of, inter alia, sexual assault in the first degree
and risk of injury to a child. Id., 600. He appealed from
his conviction, arguing that the statements recounted
by the clinic interviewer were testimonial hearsay and,
thus, barred by Crawford.9 Id., 601.
The court rejected the defendant’s Crawford claim,
and concluded that the statements were not testimonial
hearsay. Id., 621. In making this determination, the court
in Arroyo relied principally on the United States
Supreme Court’s decision in Davis v. Washington, 547
U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006), in
which that court attempted to clarify the meaning of
the term ‘‘testimonial’’ for Crawford purposes. State v.
Arroyo, supra, 284 Conn. 626–30. On the basis of its
review of Davis, the court in Arroyo concluded that
‘‘the determining factor resolving whether the subject
statements are testimonial or nontestimonial is the pri-
mary purpose of the interrogation between the declar-
ant and the witness whose testimony the state later
seeks to introduce regarding the declarant’s statements;
that is, whether the interrogation is primarily intended
to provide assistance to the declarant or to further
investigation and preparation for prosecution.’’ Id., 629.
The court further concluded that ‘‘[d]eclarants who
make statements, even regarding a possible crime, in
order to obtain assistance, do not do so with the intent
or expectation of assisting the state in building a case
against a defendant, nor do the recipients of such state-
ments act with such intent or expectation. As the
[United States Supreme Court] stated in Davis, when
making statements in order to obtain emergency assis-
tance, ‘[the victim] simply was not acting as a witness;
she was not testifying. . . . No witness goes into court
to proclaim an emergency and seek help.’ . . . Davis
v. Washington, supra, [828]. Thus, in focusing on the
primary purpose of the communication, Davis provides
a practical way to resolve what Crawford had identified
as the crucial issue in determining whether out-of-court
statements are testimonial, namely, whether the cir-
cumstances would lead an objective witness reasonably
to believe that the statements would later be used in a
prosecution.’’ State v. Arroyo, supra, 630.
With these principles in mind, the court in Arroyo
identified several facts on which it based its conclusion
that the victim’s statements were nontestimonial. First
and foremost, the court noted that the clinic’s forensic
interviewers were ‘‘an integral part of the chain of medi-
cal care’’; id., 633; because they were, inter alia, paired
with a medical care provider, and participated in diag-
nosing and formulating treatment plans for victims. Id.,
632–33. The court also noted that the clinic interviewer
in Arroyo had specifically testified that the purpose of
her interview with the victim was to secure medical
and mental health treatment. Id., 635. With respect to
the involvement of law enforcement in the interview
of the victim, the court observed that this was consistent
with the concept of statutory MITs, a purpose of which
is to ensure the welfare of child victims. Id., 634–35.
On the basis of these factors, the court ‘‘conclude[d]
that the primary purpose of the interviews was not to
build a case against the defendant, but to provide the
victim with assistance in the form of medical and mental
health treatment. Therefore, the statements were non-
testimonial, and the admission of those statements did
not violate the defendant’s right to confrontation.’’
Id., 635.
Approximately three years after our Supreme Court
decided Arroyo, the United States Supreme Court modi-
fied the Crawford calculus for determining whether a
statement is testimonial in Michigan v. Bryant, 562
U.S. 344, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011). In
Bryant, the court expanded the ‘‘primary purpose’’ test
by shifting the focus of the inquiry from the declarant’s
actions to those of both the declarant and the interroga-
tor. Specifically, the court instructed that ‘‘[i]n
determining whether a declarant’s statements are testi-
monial, courts should look to all of the relevant circum-
stances. . . . [T]he interrogator is relevant to this
evaluation . . . . [T]he identity of an interrogator, and
the content and tenor of his questions . . . can illumi-
nate the primary purpose of the interrogation.’’ (Cita-
tions omitted; internal quotation marks omitted.) Id.,
369. Moreover, the court reaffirmed and emphasized
the objective nature of this inquiry. ‘‘The statements
and actions of the parties must . . . be objectively
evaluated. That is, the relevant inquiry is not the subjec-
tive or actual purpose of the individuals involved in a
particular encounter, but rather the purpose that rea-
sonable participants would have had, as ascertained
from the individuals’ statements and actions and the
circumstances in which the encounter occurred.’’ Id.,
360.
Following the United States Supreme Court’s expan-
sion of the primary purpose test in Bryant, our Supreme
Court decided State v. Maguire, supra, 310 Conn. 535,
the case on which the defendant in the present case
primarily relies. In that case, a jury found the defendant
guilty of risk of injury to a child and sexual assault
in the fourth degree after the victim accused him of
inappropriately touching her inside her underwear. The
defendant appealed from his conviction, claiming that
the trial court had improperly allowed the forensic inter-
viewer to testify to statements made by the victim dur-
ing her forensic interview, as well as improperly
admitted into evidence the video recording and tran-
script of the interview, under the tender years exception
to the hearsay rule. Id., 538. Although the court reversed
the defendant’s conviction on a different ground, it clari-
fied the standard described in Arroyo for the admission
of forensic interview evidence. We discuss the facts of
Maguire, as well as the court’s analysis, in full here.
The defendant in Maguire was a friend of the victim’s
mother, who paid him to watch the victim and serve
as a buffer between her and her former husband, the
victim’s father, on the days that he would come to her
home to pick up their children. Id., 541. At some point
during this arrangement, the victim reported to her
brother that the defendant had touched her inside her
underwear. Id., 542. The victim’s brother repeated this
allegation to their adult cousin who, in turn, reported
it to the victim’s mother. Id.
The victim’s mother contacted a family therapist
whom she and the victim’s father had been seeing, and
scheduled an emergency session. Id. At this session,
the victim’s parents discussed the victim’s allegations
with the therapist. Id. In compliance with her responsi-
bilities as a mandated reporter, the therapist reported
the allegations to the department. Id. The department
subsequently forwarded the allegations to the local
police department. Id. The victim’s parents later went
to the police station to file a formal criminal complaint
against the defendant. Id. At the same time, they spoke
with Officer Anthony Signore, who took their statement
and contacted the Danbury Regional Child Advocacy
Center (child advocacy center) to schedule an interview
between the victim and an MIT. Id., 542–43.
Donna Meyer, the director of the MIT program at the
child advocacy center, conducted the interview of the
victim, which was video recorded for later investigative
use, and which Signore and a department caseworker
observed from behind two-way tinted glass. Id., 543. In
response to Meyer’s questions, the victim recounted
how the defendant had put his hand inside her pants
during one occasion when they were sitting together
on the couch in her mother’s living room. Id. Following
the interview, the defendant was arrested and charged
with, inter alia, risk of injury to a child and sexual
assault in the fourth degree. Id., 544.
At trial, the court admitted, over the defendant’s
objection, the video recording and a transcript of the
forensic interview of the victim pursuant to the tender
years exception. Id. At the trial’s conclusion, the jury
found the defendant guilty of risk of injury to a child
and sexual assault in the fourth degree. Id., 545. The
defendant appealed from his conviction, arguing, inter
alia, that the trial court had improperly admitted the
video recording and transcript of the victim’s forensic
interview under the tender years exception to the hear-
say rule. Id., 538–40. The state responded that the video
and transcript of the victim’s forensic interview were
admissible under the ‘‘primary purpose’’ standard set
forth in Arroyo because the MIT conducted the inter-
view under protocols similar to those employed in the
forensic interview in that case. Id., 563–64.
Although it ultimately reversed the defendant’s con-
viction on the basis of prosecutorial impropriety; id.,
540; our Supreme Court considered his evidentiary
claim because the issue underlying it had the potential
to arise again in a new trial. Id., 563. The court began its
analysis by rejecting the premise underlying the state’s
argument, namely, that the challenged evidence was
admissible under the standard set forth in Arroyo
because the victim’s interview was conducted under
similar protocols. Id., 564. Specifically, the court clari-
fied that ‘‘Arroyo did not adopt a blanket rule of admissi-
bility for all forensic interviews conducted under the
auspices of an MIT or under similar protocol but, rather,
only those interviews that are conducted for the pri-
mary purpose of providing medical assistance to the
victim.’’ (Emphasis added.) Id. The challenged evidence
was admissible in Arroyo, the court explained, only
because under the facts presented, ‘‘it [was] clear that
the primary purpose of [the forensic] interviews was
to provide medical assistance to the victim.’’ (Internal
quotation marks omitted.) Id., 566.
Significantly, the court in Maguire also restated two
prior observations that it had made in State v. Cameron
M., 307 Conn. 504, 523–24 n.20, 55 A.3d 272 (2012), cert.
denied, U.S. , 133 S. Ct. 2744, 186 L. Ed. 2d 194
(2013), overruled in part on other grounds by State v.
Elson, 311 Conn. 726, 748 n.14, 91 A.3d 862 (2014), a case
decided after Arroyo. First, it observed that ‘‘Arroyo
continues to represent a minority position on [the issue
of whether forensic interviews are testimonial under
Crawford] . . . .’’ (Internal quotation marks omitted.)
State v. Maguire, supra, 310 Conn. 568. Second, it noted
that ‘‘subsequent to Arroyo, the United States Supreme
Court decided Michigan v. [Bryant, supra, 562 U.S.
344], which . . . shift[ed] [the focus] away from the
declarant’s intent [and] toward [the intent] of the inter-
rogator [for purposes of the determination of] whether
the primary purpose of the statement is testimonial
. . . . [Bryant] has been predicted to further restrict
the admissibility of children’s hearsay statements in
sexual abuse prosecutions.’’ (Internal quotation marks
omitted.) State v. Maguire, supra, 568–69.10
The court concluded its analysis by clarifying that
the standard in Arroyo is ‘‘stringent’’; id., 570; and that
‘‘a victim’s statements during a forensic interview may
be deemed nontestimonial only if the essential purpose
of the interview is to provide medical assistance to the
victim.’’ Id., 569. It expressed skepticism that the state
would be capable of meeting this standard during the
Maguire defendant’s new trial, noting that ‘‘there is
nothing in the present record of this case to suggest
that the primary or overriding purpose of Meyer’s inter-
view was to provide the victim with assistance in the
form of medical or mental health treatment. In fact, the
record is devoid of any suggestion that the victim or
[her] mother . . . sought or obtained such treatment
at any time following the victim’s disclosure of abuse.
There also is strong evidence that Meyer was acting at
the behest of law enforcement personnel during the
interview.’’ Id., 570.
The court’s analysis in Maguire frames our inquiry
into the matter presently before us, namely, whether
the trial court in the present case properly admitted
the video recordings of the victims’ forensic interviews
and their accompanying summaries under the tender
years exception to the hearsay rule during the defen-
dant’s trial. We note at the outset that the burden is on
the state, as the proponent of the challenged statements,
to establish that the tender years exception to the hear-
say rule applies. See New England Savings Bank v.
Bedford Realty Corp., 238 Conn. 745, 753, 680 A.2d 301
(1996). Applying the principles discussed in Maguire
and cases preceding it to the facts of the present case,
we conclude that the circumstances surrounding the
victims’ forensic interviews objectively demonstrate
that their primary purpose was not to provide the vic-
tims with medical diagnosis or treatment, but to ‘‘[estab-
lish] or prov[e] past events potentially relevant to later
criminal prosecution.’’ (Internal quotation marks omit-
ted.) State v. Maguire, supra, 310 Conn. 566. We base
this conclusion on three important factors.
First, law enforcement and department investigators
played a role in the victims’ interviews far exceeding
that of passive observers. They participated in confer-
ences with the forensic interviewers both before and
after the interviews, and the interviewers actively solic-
ited questions from them to pose to the victims. Import-
antly, there is no evidence in the record suggesting that
either investigator possessed any medical expertise or
training relevant to the task of determining whether the
victims required medical diagnosis or treatment. Their
participation therefore appears to be, from an objective
viewpoint, primarily for the purpose of assisting the
interviewers in obtaining evidence to use in prosecuting
the defendant.
Second, the advocacy center’s practice of video
recording interviews bears little relation to the treat-
ment of the victims. As Murphy-Cipolla testified,
although medical providers ‘‘could’’ review the video
from an interview ‘‘if they wanted to,’’ they typically
obtain information relevant to their treatment by
observing the interview firsthand, or during weekly case
reviews. In contrast, both Murphy-Cipolla and Byrne
admitted that it is standard practice for law enforce-
ment investigators to receive a copy of the video to use
in their investigations. In fact, in response to defense
counsel’s question to Byrne if she had received training
regarding what role her interviews play in the prosecu-
tion or investigation of abuse complaints, she acknowl-
edged that ‘‘part of the reason why [the advocacy
center] videotape[s] the interview is so that it would
serve as a child’s . . . statement in the event that some-
thing . . . may go to a next level.’’
Third and finally, the structure and content of the
interviews objectively indicate that they are not primar-
ily directed toward providing medical diagnosis or treat-
ment to the victims. Murphy-Cipolla and Byrne each
testified that the focus of their questions is essentially
on eliciting facts pertinent to the victims’ allegations:
the nature of the contact, the identity of the accuser,
and how many times the abuse happened, for example.11
Questions of a traditionally medical nature, on the other
hand, such as those relating to the actual physical or
mental condition of the victim, are, as they admitted,
typically relegated to the end of the interview. Even
then, this inquiry appears to be confined, at least in
the present case, to asking the victims if they had any
‘‘worries’’ about their bodies. We further note that due
to the substantial involvement of the state in the inter-
view process, a hallmark of the clinician-provider rela-
tionship—the confidentiality of any medical
information gleaned from the interview—is missing.
See Jarmie v. Troncale, 306 Conn. 578, 607, 50 A.3d
802 (2012) (‘‘[t]he principle of confidentiality lies at the
heart of the physician-patient relationship and has been
recognized by our legislature’’).
Moreover, in contrast to Arroyo, there is little evi-
dence that either Murphy-Cipolla or Byrne ‘‘was an inte-
gral part of the chain of medical care.’’ (Emphasis
added.) State v. Arroyo, supra, 284 Conn. 633. Although
they each testified that they met with medical providers
to discuss cases, and that treating clinicians would fre-
quently observe their interviews, their testimony does
not suggest that they were individually paired with any
of these medical providers, as in Arroyo, or that they
participated in ‘‘the ultimate diagnosis and formulation
of a treatment plan for the child.’’ Id.
The state attempts to establish that the primary pur-
pose of the victims’ interviews was to provide medical
diagnosis or treatment by relying, in significant part,
on Murphy-Cipolla’s and Byrne’s assertions to that
effect. As we discussed previously, however, the subjec-
tive intentions of the interviewers are not proper consid-
erations in the primary purpose inquiry. See Michigan
v. Bryant, supra, 562 U.S. 360. Instead, we look to dis-
cern ‘‘the purpose that reasonable participants would
have had, as ascertained from the individuals’ state-
ments and actions and the circumstances in which the
encounter occurred.’’ Id. As the foregoing discussion
indicates, we are not persuaded that reasonable partici-
pants conducting the same interviews in the manner as
Murphy-Cipolla and Byrne would have done so with
the primary purpose of providing medical treatment
to the victims. Although it may be true that medical
treatment was one purpose of the interviews, we agree
with the defendant that an objective assessment of the
circumstances surrounding the interviews leads to the
conclusion that their primary purpose was to establish
and create a record of past events related to the victims’
allegations. For this reason, we conclude that the state-
ments contained in the videos of the forensic interviews
and the reports generated therefrom were testimonial
as a matter of law, and, therefore, improperly admitted
under the tender years exception to the hearsay rule.
B
Medical Diagnosis and Treatment Exception
Having determined that the court improperly admit-
ted the forensic interview videos and summaries under
the tender years exception to the hearsay rule, we now
turn to the issue of whether the court properly admitted
the evidence under the medical diagnosis and treatment
exception. In support of his claim that the court improp-
erly admitted the videos and summaries under the
exception, the defendant advances the following two
part argument. First, he argues that the tender years
exception and the medical diagnosis and treatment
exception are governed by similar standards because
statements admissible under both exceptions are simi-
lar in nature. Second, he argues that because the videos
and summaries were not admissible under the tender
years exception because their primary purpose was
not to provide medical assistance, they are likewise
inadmissible under the medical diagnosis and treatment
exception. We are not persuaded that the medical diag-
nosis and treatment exception implicates Crawford’s
prohibition against testimonial hearsay, as the tender
years exception does. For this reason, we reject the
first part of the defendant’s argument. With respect
to the second part of the defendant’s argument, we
conclude that when the admissibility of the videos and
summaries is considered under the traditional standard
imposed by the medical diagnosis and treatment excep-
tion, the court did not improperly admit them.
We begin our analysis by again clarifying the
important point that, because the victims appeared at
trial and were subject to cross-examination by the
defendant, Crawford and its progeny do not apply
directly to the present case. See Crawford v. Washing-
ton, supra, 541 U.S. 60 n.9 (‘‘when the declarant appears
for cross-examination at trial, the [c]onfrontation
[c]lause places no constraints at all on the use of his
prior testimonial statements’’). We focused our discus-
sion in part I of this opinion extensively on Crawford
only because the text of the tender years exception
expressly adopts the Crawford standard as one of its
criteria for admissibility even if a Crawford claim is
not available to the defendant because the declarant
testified at trial. See State v. Maguire, supra, 310 Conn.
565 (‘‘[t]he prohibition of the tender years exception
against statements made in preparation of a legal pro-
ceeding is simply another way of saying that, to be
admissible, the statement must be nontestimonial for
purposes of Crawford’’); see also Conn. Code Evid.
(2009) § 8-10 (a), commentary (explaining that § 8-10
[a] [2] of the Connecticut Code of Evidence ‘‘address[es]
the exclusion of testimonial statements prohibited by
Crawford’’). Thus, although we determined that the
victims’ statements were testimonial in nature, we did
not conclude that they were barred by the sixth amend-
ment’s confrontation clause, as Crawford would have
required if the declarants were unavailable to testify at
trial and there had been no prior opportunity for cross-
examination. Rather, we determined only that the foren-
sic interview videos and written summaries did not
satisfy one criterion set forth in the tender years excep-
tion for admissibility thereunder.
Because hearsay that does not fall into one exception
to the hearsay rule may still be admissible if it falls
within another exception; see Doe v. Thames Valley
Council for Community Action, Inc., 69 Conn. App.
850, 868, 797 A.2d 1146, cert. denied, 261 Conn. 906,
804 A.2d 212 (2002); the question of whether the videos
and their written summaries are admissible under the
medical diagnosis and treatment exception requires its
own analysis independent of the one undertaken pursu-
ant to the tender years exception. Indeed, the Code of
Evidence specifically states in the tender years excep-
tion that ‘‘[n]othing in this section shall be construed
to . . . prevent the admission of any statement under
another hearsay exception.’’ Conn. Code Evid. § 8-10
(b) (1).
In conducting this analysis, we observe initially that
in contrast to the tender years exception, the medical
diagnosis and treatment exception to the hearsay rule
contains no language expressly or implicitly importing
Crawford’s prohibition against testimonial hearsay. The
exception provides only that statements ‘‘made for pur-
poses of obtaining a medical diagnosis or treatment
and describing medical history, or past or present symp-
toms, pain, or sensations, or the inception or general
character of the cause or external source thereof, inso-
far as reasonably pertinent to the medical diagnosis or
treatment,’’ are not excluded by the hearsay rule. Conn.
Code Evid. § 8-3 (5). Neither this language, nor any
common-law principle that we are aware of, mandates
that statements offered under the exception be nontesti-
monial.12 Rather, their admissibility turns principally on
whether ‘‘the declarant was seeking medical diagnosis
or treatment, and the statements are reasonably perti-
nent to achieving those ends.’’ (Internal quotation
marks omitted.) State v. Cruz, 260 Conn. 1, 8, 792 A.2d
823 (2002).
In the context of a forensic interview, this standard
is substantially less demanding than the one imposed
by Crawford and incorporated into the tender years
exception. Undoubtedly, statements may be ‘‘ ‘reason-
ably pertinent’ ’’; id.; to obtaining medical diagnosis or
treatment even when that was not the primary purpose
of the inquiry that prompted them, or the principal
motivation behind their expression. See State v. Donald
M., 113 Conn. App. 63, 71, 966 A.2d 266 (forensic inter-
view statements admissible under medical diagnosis
and treatment exception because ‘‘the purpose of the
interview was, at least in part, to determine whether
the victim was in need of medical treatment’’ [emphasis
added]), cert. denied, 291 Conn. 910, 969 A.2d 174
(2009). Consequently, we anticipate that in most cir-
cumstances, the task of demonstrating that a statement
made during a forensic interview satisfies the medical
diagnosis and treatment exception will be less onerous
than establishing that it is admissible under the tender
years exception.
Despite the apparent variation in the burdens
imposed by the two hearsay exceptions at issue in this
case, the defendant argues that, in the context of a
forensic interview, the standard governing the medical
diagnosis and treatment exception is similar to the stan-
dard that governs the tender years exception. He bases
this argument on our Supreme Court’s observation in
Maguire that ‘‘statements made in the course of a foren-
sic interview that satisfy the criteria for admission
under the tender years exception are similar to state-
ments made to a physician in the course of medical
treatment, which are admissible under the medical
treatment and diagnosis exception to the hearsay rule
. . . .’’ State v. Maguire, supra, 310 Conn. 569. He con-
tends that this ‘‘recognized similarity between the two
exceptions implies that if one is inapplicable the other,
a fortiori, does not apply.’’ (Emphasis omitted.)
Our review of Maguire compels us to reject this con-
clusion. The pertinent issue raised in Maguire, for pur-
poses of the present case, was whether the trial court
had improperly admitted video evidence and statements
made during forensic interviews under the tender years
exception alone. See State v. Maguire, supra, 310 Conn.
538. The court did not address whether the videos were
additionally admissible under the medical diagnosis and
treatment exception. To the extent that the court dis-
cussed that exception, it appears to have done so as
a means of emphasizing, by way of comparison, that
statements made during a forensic interview and
offered under the tender years exception must be for
the primary purpose of obtaining medical treatment. In
light of the limited scope of the court’s inquiry, we
decline to construe the court’s observation as sug-
gesting that, because some statements admissible
under both hearsay exceptions are similar in nature,
other statements inadmissible under one exception are
necessarily inadmissible under the other. In fact, as
previously discussed, the text of the tender years excep-
tion expressly cautions us against reaching this conclu-
sion. See Conn. Code Evid. § 8-10 (b) (1) (‘‘[n]othing in
this section shall be construed to . . . prevent the
admission of any statement under another hearsay
exception’’).13
Having concluded that the applicability of the medical
diagnosis and treatment exception to the hearsay rule
must be determined on its own merits, we set forth the
relevant legal principles that guide our resolution of this
question. ‘‘Out-of-court statements made by a patient to
a [medical provider] may be admitted into evidence if
the declarant was seeking medical diagnosis or treat-
ment, and the statements are reasonably pertinent to
achieving these ends.’’ (Internal quotation marks omit-
ted.) State v. Cecil J., 99 Conn. App. 274, 289, 913 A.2d
505 (2007), aff’d, 291 Conn. 813, 970 A.2d 710 (2009).
‘‘The rationale for excluding from the hearsay rule state-
ments made in furtherance of obtaining treatment is
that we presume that such statements are inherently
reliable because the patient has an incentive to tell the
truth in order to obtain a proper medical diagnosis and
treatment. . . . The term medical encompasses psy-
chological as well as somatic illnesses and conditions.
. . . Statements made by a sexual assault complainant
to a social worker may fall within the exception if the
social worker is found to have been acting within the
chain of medical care.’’ (Citations omitted; internal quo-
tation marks omitted.) State v. Donald M., supra, 113
Conn. App. 70–71. ‘‘Although [t]he medical treatment
exception to the hearsay rule requires that the state-
ments be both pertinent to treatment and motivated by
a desire for treatment . . . in cases involving juveniles,
[we] have permitted this requirement to be satisfied
inferentially.’’ (Citation omitted; internal quotation
marks omitted.) State v. Telford, 108 Conn. App. 435,
441–42, 948 A.2d 350, cert. denied, 289 Conn. 905, 957
A.2d 875 (2008).
In the present case, there was sufficient evidence
presented at trial that the victims’ statements were rea-
sonably pertinent to obtaining medical diagnosis and
treatment to bring them within the scope of the medical
diagnosis and treatment exception.14 Specifically, both
Murphy-Cipolla and Byrne testified that the purpose of
their questions was to assist them in recommending
medical examinations or mental health treatment. To
that end, they each normally inquire if the children
they interview have any concerns about their bodies.
Moreover, although the primary purpose of many of
their questions appears to be directed toward assisting
law enforcement; see part I A of this opinion; the infor-
mation they obtain from interviews is nonetheless avail-
able and provided to medical providers and mental
health practitioners. At the conclusion of each inter-
view, Murphy-Cipolla and Byrne make referrals for
medical and mental health treatment, as needed. To
reduce trauma to victims of sexual assault, the advo-
cacy center performs physical and mental health exami-
nations on site.
On the basis of the foregoing evidence, we conclude
that the victims’ statements were reasonably pertinent
to obtaining medical diagnosis or treatment, and that
Murphy-Cipolla and Byrne sufficiently occupied a posi-
tion within the chain of medical care, to bring the vic-
tims’ statements within the scope of the medical
diagnosis and treatment exception. We also recognize
that because the standard for admission of forensic
interview evidence under the medical diagnosis and
treatment exception is less stringent than the standard
for admission under the tender years exception, the
state in future cases may rely solely on the medical
diagnosis and treatment exception, thereby effectively
rendering Maguire a nullity. This potential anomaly,
however, is not for this court to address but, instead,
is best left for consideration by our Supreme Court,
either in its adjudicative function or as overseer of the
Code of Evidence. Accordingly, we conclude that the
court did not abuse its discretion by admitting the foren-
sic interview videos and written summaries containing
those statements under the medical diagnosis and treat-
ment exception to the hearsay rule.
II
PROSECUTORIAL IMPROPRIETY
The defendant next claims that the prosecutor
deprived him of his due process right to a fair trial by
committing various acts of prosecutorial impropriety
during his rebuttal argument to the jury. In particular,
the defendant claims that the prosecutor improperly
(1) denigrated the defendant and his counsel; (2)
expressed his personal opinion; and (3) appealed to the
emotions, passions, and prejudices of the jury. The state
argues that the prosecutor’s comments were not
improper. Alternatively, the state contends that even if
some of the prosecutor’s comments were improper,
none of them deprived the defendant of a fair trial. We
agree with the state’s argument that the prosecutor’s
comments were not improper.
We begin our review of the defendant’s claim by
setting forth the applicable standard of review. ‘‘In ana-
lyzing claims of prosecutorial impropriety, we engage
in a two step analytical process. . . . The two steps are
separate and distinct. . . . We first examine whether
prosecutorial impropriety occurred. . . . Second, if an
impropriety exists, we then examine whether it
deprived the defendant of his due process right to a
fair trial. . . . In other words, an impropriety is an
impropriety, regardless of its ultimate effect on the fair-
ness of the trial. Whether that impropriety was harmful
and thus caused or contributed to a due process viola-
tion involves a separate and distinct inquiry. . . . [If]
a defendant raises on appeal a claim that improper
remarks by the prosecutor deprived the defendant of
his constitutional right to a fair trial, the burden is
on the defendant to show . . . that the remarks were
improper . . . .
‘‘Because the claimed prosecutorial [improprieties]
occurred during closing arguments, we advance the
following legal principles. [P]rosecutorial [impropriety]
of a constitutional magnitude can occur in the course
of closing arguments. . . . In determining whether
such [an impropriety] has occurred, the reviewing court
must give due deference to the fact that [c]ounsel must
be allowed a generous latitude in argument, as the limits
of legitimate argument and fair comment cannot be
determined precisely by rule and line, and something
must be allowed for the zeal of counsel in the heat of
argument. . . . Thus, as the state’s advocate, a prose-
cutor may argue the state’s case forcefully, [provided
the argument is] fair and based upon the facts in evi-
dence and the reasonable inferences to be drawn there-
from. . . .
‘‘Nevertheless, the prosecutor has a heightened duty
to avoid argument that strays from the evidence or
diverts the jury’s attention from the facts of the case.
[The prosecutor] is not only an officer of the court,
like every attorney, but is also a high public officer,
representing the people of the [s]tate, who seek impar-
tial justice for the guilty as much as for the innocent.
. . . By reason of his office, he usually exercises great
influence [on] jurors. His conduct and language in the
trial of cases in which human life or liberty [is] at stake
should be forceful, but fair, because he represents the
public interest, which demands no victim and asks [for]
no conviction through the aid of passion, prejudice, or
resentment. If the accused [is] guilty, he should [none-
theless] be convicted only after a fair trial, conducted
strictly according to the sound and well-established
rules which the laws prescribe. [Although] the privilege
of counsel in addressing the jury should not be too
closely narrowed or unduly hampered, it must never
be used as a license to state, or to comment [on], or
to suggest an inference from, facts not in evidence, or
to present matters which the jury ha[s] no right to
consider.’’ (Citations omitted; internal quotation marks
omitted.) State v. Ross, 151 Conn. App. 687, 693–94,
95 A.3d 1208, cert. denied, 314 Conn. 926, 101 A.3d
271 (2014).
In the present case, the defendant failed to object
at trial to the remarks that he claims were improper.
Nevertheless, our Supreme Court has explained that a
‘‘defendant’s failure to object at trial to each of the
occurrences that he now raises as instances of prosecu-
torial impropriety, though relevant to our inquiry, is not
fatal to review of his claims. . . . This does not mean,
however, that the absence of an objection at trial does
not play a significant role in the determination of
whether the challenged statements were, in fact,
improper. . . . To the contrary, we continue to adhere
to the well established maxim that defense counsel’s
failure to object to the prosecutor’s argument when it
was made suggests that defense counsel did not believe
that it was [improper] in light of the record of the case
at the time. . . . With this maxim in mind, we proceed
with our review of the defendant’s claim[s].’’ (Internal
quotation marks omitted.) Id., 694–95.
A
Improper Denigration of Defendant
And Defense Counsel
The defendant first claims that the prosecutor
improperly denigrated both the defendant and defense
counsel. Specifically, he claims that the prosecutor
repeatedly characterized the defendant as abnormal,
accused defense counsel of violating the law, and sug-
gested that defense counsel was willing to invent theo-
ries to bolster the defendant’s case. The state responds
that the prosecutor’s comments were proper responses
to defense counsel’s closing argument. We agree with
the state.
The following additional facts are relevant to this
claim. During closing argument, defense counsel sug-
gested that the victims had fabricated their allegations
against the defendant to prevent their mother from dat-
ing him. In support of this theory, he argued that the
victims’ allegations were implausible and unsupported
by any physical evidence or independent testimony.
Specifically, he stated: ‘‘Again, no physical evidence that
any of these acts occurred. No independent testimony
putting [the defendant] alone in this room with these
girls during this party. He had not seen these people
for many years. So, he just came to this party like a
stranger and somehow was able to get inside the house
and go upstairs in each of the girl’s rooms, alone with
the girls. Really? That’s amazing. I think that’s amazing.
And that should not be believed.’’
In response during rebuttal argument, the prosecutor
stated: ‘‘With respect to these girls being in the room
alone with the defendant. Well, listen, we know why
he was up in the room. You heard the story. Their
grandmother left them this desk. Him and his brother
helped move this desk up in the room. So, that’s how
he gets up in the room. And I’ll concede that it is strange
that the defendant is alone with these young girls by
themselves. But consider the source. Okay? We’re talk-
ing about [the defendant] here, not the average person.
We’re talking about a guy who’s playing around with
kids when he has no shirt on, with a bathing suit on,
which he claims accidentally could have shown his
penis to her—to one of these girls while on a camping
trip because a frog jumped into his shorts. I mean, this
is . . . the type of guy we’re talking about, not the
average guy. He’s so eager to be around with these kids
he sets up this camping trip to go camping with them.
He’s so eager to always be playing and pi[n]ching their
butts because he had a tough childhood and he likes
playing with kids. This is not the average guy. This is
a guy who’s into this type of stuff.’’
‘‘[A] prosecutor should avoid arguments which are
calculated to influence the passions or prejudices of
the jury, or which would have the effect of diverting
the jury’s attention from their duty to decide the case
on the evidence. . . . It is no part of a [prosecutor’s]
duty, and it is not his right, to stigmatize a defendant.’’
(Internal quotation marks omitted.) State v. James R.,
138 Conn. App. 181, 190, 50 A.3d 936, cert. denied, 307
Conn. 940, 56 A.3d 949 (2012). ‘‘[A]n improper appeal
to the jurors’ emotions can take the form of a personal
attack on the defendant’s character . . . .’’ (Internal
quotation marks omitted.) State v. Santiago, 143 Conn.
App. 26, 37, 66 A.3d 520 (2013).
The defendant contends that the prosecutor’s com-
ments improperly stigmatized him in the eyes of the jury
by ‘‘brand[ing] [him] as an individual with an abnormal
fascination with young children whose protestations of
innocence should be dismissed out of hand.’’ We do
not agree, however, that this was the intent behind, or
the effect of, the prosecutor’s remarks. Rather, we view
the prosecutor’s comments as attempting to mitigate
the defendant’s characterization of the victims’ allega-
tions as implausible and unsupported by evidence. By
emphasizing evidence tending to show that the defen-
dant was eager to spend time with the victims and
engage in physical contact with them, the prosecutor
was attempting to diminish any initial skepticism that
might arise from the victims’ description of events,
which the prosecutor conceded was ‘‘strange . . . .’’
Moreover, we view the state’s characterization of the
defendant as ‘‘a guy who’s into this type of stuff’’ as an
attempt to highlight evidence adduced at trial sug-
gesting that the defendant had orchestrated various
situations in order to engage in sexually inappropriate
contact with the victims. Accordingly, we conclude that
these comments were not an improper attempt to stig-
matize the defendant, but instead a direct and propor-
tional response to the defendant’s challenge to the
plausibility of the victims’ allegations.
The defendant further argues that the prosecutor
improperly denigrated defense counsel by characteriz-
ing part of his argument as ‘‘illegal’’ and suggesting that
it was possibly fabricated. The state responds that the
prosecutor properly commented on defense counsel’s
improper reference to facts not properly before the
jury. We agree with the state.
‘‘[T]he prosecutor is expected to refrain from
impugning, directly or through implication, the integrity
or institutional role of defense counsel.’’ (Internal quo-
tation marks omitted.) State v. Orellana, 89 Conn. App.
71, 101, 872 A.2d 506, cert. denied, 274 Conn. 910, 876
A.2d 1202 (2005). During his closing argument, defense
counsel stated: ‘‘I know from just some research. You
know, if you look in some of the books, the psychologi-
cal books. You know, why are these stories sometimes
made up? Why do sometimes children make up these
stories? And they give a list of reasons. And one reason
I read was to satisfy a need for attention and sympathy.
That is one—I guess one reason sometimes you see
that type of thing happen, to satisfy a need for attention
and sympathy. ‘‘
During rebuttal argument, the prosecutor responded:
‘‘Now, [defense counsel] read out of some book, appar-
ently, that children make up stories to satisfy the need
for attention and sympathy. Okay. So, what he just did
is illegal. If he wanted to do that, put that evidence in
front of you he had to call an expert witness who says,
yeah, I deal with children all the time and they make
up stories to X, Y and Z. So, what he said about that,
you can’t consider that at all because it didn’t come
out in the trial. For all we know he just made that up.’’
The defendant contends that these comments were
improper because they constituted accusations in open
court that defense counsel had engaged in dishonest
and criminal conduct. In support of this argument, he
cites to our Supreme Court’s decision in State v. Payne,
303 Conn. 538, 34 A.3d 370 (2012). In that case, defense
counsel had repeatedly asserted during closing argu-
ment that her client was ‘‘honest’’ and had ‘‘told the
truth.’’ (Internal quotation marks omitted.) Id., 564. In
response, the prosecutor stated during rebuttal argu-
ment that ‘‘attorneys aren’t even ethically allowed to
say a particular witness is honest or not.’’ (Emphasis
omitted; internal quotation marks omitted.) Id., 565.
Our Supreme Court concluded that the prosecutor’s
comment, ‘‘although in response to defense counsel’s
improper statements bolstering the defendant’s credi-
bility, was improper because it impugned defense coun-
sel by characterizing her as unethical. It has been held
improper for the prosecutor to impugn the role of
defense counsel. . . . In particular, [i]t is improper for
a prosecutor to tell a jury, explicitly or implicitly, that
defense counsel is employing standard tactics used in
all trials, because such an argument relies on facts not
in evidence and has no bearing on the issue before the
jury, namely, the guilt or innocence of the defendant.’’
(Internal quotation marks omitted.) Id., 566. The defen-
dant claims that the prosecutor’s comments in the pre-
sent case are similar to those held improper in Payne.
We conclude that Payne is distinguishable from the
present case. In Payne, the prosecutor specifically char-
acterized defense counsel as unethical. That is substan-
tively different from characterizing part of an argument
as illegal, as the prosecutor did in the present case.
The context of the prosecutor’s remark strongly sug-
gests that he was attempting to convey that defense
counsel had argued facts not in evidence, as opposed
to violating a rule governing professional conduct or a
provision of our Penal Code. Because not every viola-
tion of the Code of Evidence is unethical—indeed, many
are inadvertent or the result of a good faith belief in
the propriety of the attorney’s conduct—we decline to
construe the prosecutor’s use of the word ‘‘illegal’’ as
an attack designed to denigrate defense counsel.
Instead, we adhere to the well established principle
that ‘‘a court should not lightly infer that a prosecutor
intends an ambiguous remark to have its most damaging
meaning or that a jury, sitting through lengthy exhorta-
tion, will draw that meaning from the plethora of less
damaging interpretations.’’ (Internal quotation marks
omitted.) State v. Ciullo, 314 Conn. 28, 48, 100 A.3d
779 (2014).15
We further read the prosecutor’s comment, ‘‘[f]or all
we know he just made that up,’’ not as suggesting that
defense counsel had fabricated facts, but as emphasiz-
ing that his comments about the victims’ motives had
no basis in the evidentiary record. Significantly, the
defendant does not dispute that by recollecting the con-
tents of a psychology book he claimed to have read,
but to which no expert had testified, defense counsel
was placing evidence before the jury that had not been
properly introduced during trial. The fact that defense
counsel did not object to the prosecutor’s remarks at
the time that they were made further suggests that he
perceived them to be fair and invited commentary on
the propriety of his closing argument, and not accusa-
tions that he had engaged in some criminal act or fabri-
cated evidence.
B
Improper Expression of Personal Opinion
The defendant next argues that the prosecutor
improperly and repeatedly expressed his personal opin-
ion during rebuttal argument. Specifically, he argues
that the prosecutor improperly expressed his opinion
that (1) there was ‘‘no reason’’ for the victims to fabri-
cate their allegations against the defendant because
they ‘‘actually liked [him]’’; (2) the victims’ testimony
was ‘‘so reliable’’; (3) the physical contact between the
defendant and the victims was ‘‘not an accident’’; (4)
the defendant’s explanation for the victims’ allegations
about his conduct on the camping trip was ‘‘the most
ridiculous story’’; (5) the defendant ‘‘put the nail in his
coffin’’ by conveying that explanation to the police;16
and (6) the testimony of several defense witnesses was
‘‘useless’’ and ‘‘worthless.’’ The state responds that the
prosecutor’s comments constituted proper argument
that was based on the evidence produced at trial. We
agree with the state.
‘‘[A] prosecutor may not express his own opinion,
directly or indirectly, as to the credibility of the wit-
nesses. . . . Nor should a prosecutor express his opin-
ion, directly or indirectly, as to the guilt of the
defendant. . . . Such expressions of personal opinion
are a form of unsworn and unchecked testimony, and
are particularly difficult for the jury to ignore because
of the prosecutor’s special position. . . . Moreover,
because the jury is aware that the prosecutor has pre-
pared and presented the case and consequently, may
have access to matters not in evidence . . . it is likely
to infer that such matters precipitated the personal
opinions. . . . It is not, however, improper for the pros-
ecutor to comment upon the evidence presented at trial
and to argue the inferences that the jurors might draw
therefrom . . . .’’ (Internal quotation marks omitted.)
State v. Luster, 279 Conn. 414, 435, 902 A.2d 636 (2006).
Moreover, ‘‘[a]lthough prosecutors generally should try
to avoid using phrases that begin with the pronoun I,
such as I think or I believe, we recognize that the use
of the word I is part of our everyday parlance and . . .
because of established speech patterns, it cannot
always easily be eliminated completely from extempo-
raneous elocution.’’ (Internal quotation marks omitted.)
Id., 436.
As previously discussed, the defendant devoted a por-
tion of his closing argument to arguing that the victims’
allegations were implausible, uncorroborated by physi-
cal evidence, and a possible attempt to sabotage the
defendant’s relationship with the victims’ mother. When
viewed in light of this theory, the prosecutor’s com-
ments—which largely comprised a series of declarative
factual statements—constituted a proper attempt to
rebut defense counsel’s arguments by encouraging the
jury to draw inferences that were favorable to the state’s
theory of the case and adverse to that of the defendant.
For instance, the prosecutor supported his assertion
that there was ‘‘no reason’’ to discredit the victims’
allegations by reciting a number of facts, and encourag-
ing a number of inferences that, considered as a whole,
suggested the victims had little incentive to lie. See
State v. Stevenson, 269 Conn. 563, 585, 849 A.2d 626
(2004) (‘‘[i]t is not improper for a prosecutor to remark
on the motives that a witness may have to lie, or not
to lie, as the case may be’’ [internal quotation marks
omitted]). Similarly, when the prosecutor characterized
some of the defense witnesses’ testimony as ‘‘useless’’
and ‘‘worthless,’’ he was not placing his personal opin-
ion before the jury, but, rather, drawing attention to
the fact that, due to their inability to recall critical
details about the defendant’s whereabouts at the pool
party, their testimony neither supported the defendant’s
theory of the case nor undercut that of the state. Under
these circumstances, we conclude that the prosecutor’s
comments constituted proper, albeit blunt, commentary
on the evidence presented at trial.
Furthermore, we conclude that the prosecutor’s char-
acterization of the defendant’s explanation as ‘‘ridicu-
lous,’’ and his assertion that it ‘‘put the nail in [the
defendant’s] coffin,’’ was, although forceful, a proper
rhetorical device directed at highlighting the implausi-
bility of the defendant’s claim. See State v. Stevenson,
supra, 269 Conn. 584 (‘‘The [prosecutor]’s remark dur-
ing closing argument describing the defendant’s expla-
nation as . . . ‘totally unbelievable’ did not necessarily
express her personal opinion. Rather, it was a comment
on the evidence presented at trial, and it posited a
reasonable inference that the jury itself could have
drawn without access to the [prosecutor]’s personal
knowledge of the case.’’); State v. Grant, 154 Conn.
App. 293, 321, 112 A.3d 175 (2014) (‘‘[N]ot every use
of rhetorical language or device is improper. . . . The
occasional use of rhetorical devices is simply fair argu-
ment. . . . [S]ome use of sarcastic and informal lan-
guage, when intended to forcefully criticize a defense
theory on the permissible bases of the evidence and the
common sense of the jury, is not necessarily improper.’’
[Citation omitted; internal quotation marks omitted.]),
cert. denied, 315 Conn. 928, 109 A.3d 923 (2015). Here,
‘‘[w]e must give the jury the credit of being able to
differentiate between argument on the evidence and
attempts to persuade them to draw inferences in the
state’s favor, on one hand, and improper unsworn testi-
mony, with the suggestion of secret knowledge, on the
other hand. The state’s attorney should not be put in
the rhetorical straitjacket of always using the passive
voice, or continually emphasizing that he [or she] is
simply saying I submit to you that this is what the
evidence shows, or the like.’’ (Internal quotation marks
omitted.) State v. Ciullo, supra, 314 Conn. 41. For these
reasons, we do not agree that the prosecutor improperly
expressed his personal opinion during rebuttal
argument.
C
Improper Appeal to Emotions, Passions
And Prejudices of Jury
Finally, the defendant claims that the prosecutor
improperly appealed to the emotions, passions, and
prejudices of the jury during the state’s rebuttal argu-
ment. Specifically, the defendant argues that by refer-
encing the emotional trauma experienced by the
victims, the prosecutor improperly vouched for their
credibility and simultaneously appealed to the jury’s
emotions, passions, and prejudices. The state contends
that the prosecutor properly appealed to the jurors’
common sense while rebutting the defendant’s sugges-
tion that the victims’ allegations were not plausible. We
agree with the state.
‘‘[I]t is axiomatic that a prosecutor may not advance
an argument that is intended solely to appeal to the
jurors’ emotions and to evoke sympathy for the victim
or outrage at the defendant. . . . An appeal to emo-
tions, passions, or prejudices improperly diverts the
jury’s attention away from the facts and makes it more
difficult for it to decide the case on the evidence in the
record. . . . When the prosecutor appeals to emotions,
he invites the jury to decide the case, not according to
a rational appraisal of the evidence, but on the basis
of powerful and irrelevant factors [that] are likely to
skew that appraisal. . . . An improper appeal to the
jurors’ emotions can take the form of a personal attack
on the defendant’s character . . . or a plea for sympa-
thy for the victim or her family.’’ (Internal quotation
marks omitted.) State v. Maguire, supra, 310 Conn.
554–55.
During his rebuttal argument, the prosecutor twice
remarked that the victims had experienced emotional
trauma resulting from their allegations against the
defendant. Specifically, the prosecutor stated: ‘‘And
with respect to these girls making this story up. Let’s
think about it this way. All right? Three years ago, their
argument is, three years ago they made this story up
so their mom wouldn’t go out with this guy. Now, think
about it. Think about how these girls, the trauma these
girls have gone through because of this. For three years
they’re telling people this story. They have to come
and tell me the story. They have to come and tell [the
department] the story. They have to go to Saint Francis
[Hospital and Medical Center] and tell the story. They
have to tell their counselors the story. They have to
come and tell a bunch of strangers, you, in open court,
this story. At any time they could have said, I made this
up. But, no, for three years they tell the same story.
And they know at this point, or they have to know at
this point, that there’s no way their mom is going out
with this guy. Right? I mean, it’s three years later. All
these things had come out. They know that they can
come and say it didn’t happen, but they did. And they
went through the trauma. And they went through the
cross-examination. And they went through the tears.
And they went through all this, and they still want you
to believe, the defendant does, that this is made up
because she was going to go out on a date with him
three years ago. It just doesn’t make any sense.’’
(Emphasis added.)
We conclude that these comments constituted proper
argument that the victims lacked an incentive to fabri-
cate their allegations. Rather than appealing to the
jurors’ emotions, passions, and prejudices, the prosecu-
tor was asking them to exercise their common sense
and assess why the victims would lie about the defen-
dant when doing so would require them to undergo the
emotionally difficult process of repeatedly telling their
story to one stranger after another. See State v. War-
holic, 278 Conn. 354, 364–65, 897 A.2d 569 (2006) (prose-
cutor’s comments that it was ‘‘stretch to think that
[victim] is kind of . . . a mastermind behind making
this up’’ and that ‘‘[t]he kid who was molested came in
here and faced you all and said it’’ were proper argu-
ments that victim had ‘‘no motive to lie’’ [internal quota-
tion marks omitted]); State v. Stevenson, supra, 269
Conn. 585 (‘‘[i]t is not improper for a prosecutor to
remark on the motives that a witness may have to lie,
or not to lie, as the case may be’’ [internal quotation
marks omitted]. Moreover, this argument was directly
responsive to defense counsel’s suggestion that the vic-
tims’ allegations were implausible. Accordingly, we con-
clude that the prosecutor’s comments did not
improperly appeal to the emotions, passions, and preju-
dices of the jury. Because we conclude that the prosecu-
tor’s statements in the present case were not improper,
we need not consider whether any claimed impropriety
deprived the defendant of his right to a fair trial. See
State v. Otto, 305 Conn. 51, 76 n.19, 43 A.3d 629 (2012);
State v. Herring, 151 Conn. App. 154, 173 n.11, 94 A.3d
688 (2014).
The judgment is affirmed.
In this opinion DiPENTIMA, C. J., 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 victims or others through whom the victims’ identities may
be ascertained. See General Statutes § 54-86e.
2
‘‘An MIT consists of mental health and law enforcement professionals,
as well as [Department of Children and Families] employees, all of whom
work collaboratively to investigate and treat cases of reported sexual abuse.’’
State v. Maguire, supra, 310 Conn. 543; see also General Statutes § 17a-106a.
3
Although the court determined that the videos fell within the two excep-
tions to the hearsay rule, it also determined that certain portions of the
videos pertaining to uncharged misconduct were unfairly prejudicial and,
therefore, inadmissible.
4
The state argues that the defendant’s claim that the court improperly
admitted the interview summaries is briefed inadequately because he did
not independently analyze their admissibility. We disagree. Although the
defendant uses the videos as a focal point of his argument, it is evident that
the crux of his claims on appeal is that the statements made by the victims
to Murphy-Cipolla and Byrne constituted inadmissible hearsay, irrespective
of whether they were introduced to the jury in videos or in reports generated
by the advocacy center.
5
Section 8-10 of the Connecticut Code of Evidence provides in relevant
part: ‘‘Notwithstanding any other rule of evidence or provision of law, a
statement by a child under thirteen years of age relating to a sexual offense
committed against that child, or an offense involving physical abuse commit-
ted against that child by a person or persons who had authority or apparent
authority over the child, shall be admissible in a criminal or juvenile proceed-
ing if: (1) The court finds, in a hearing conducted outside the presence of
the jury, if any, that the circumstances of the statement, including its timing
and content, provide particularized guarantees of its trustworthiness, (2)
the statement was not made in preparation for a legal proceeding, (3) the
proponent of the statement makes known to the adverse party an intention
to offer the statement and the particulars of the statement including the
content of the statement, the approximate time, date and location of the
statement, the person to whom the statement was made and the circum-
stances surrounding the statement that indicate its trustworthiness, at such
time as to provide the adverse party with a fair opportunity to prepare to meet
it, and (4) either (A) the child testifies and is subject to cross-examination at
the proceeding, or (B) the child is unavailable as a witness and (i) there is
independent nontestimonial corroborative evidence of the alleged act, and
(ii) the statement was made prior to the defendant’s arrest or institution of
juvenile proceedings in connection with the act described in the statement.
. . .’’ (Emphasis added.)
6
Section 8-3 of the Connecticut Code of Evidence provides in relevant
part: ‘‘The following are not excluded by the hearsay rule, even though the
declarant is available as a witness . . . (5) . . . A statement made for pur-
poses of obtaining a medical diagnosis or treatment and describing medical
history, or past or present symptoms, pain, or sensations, or the inception
or general character of the cause or external source thereof, insofar as
reasonably pertinent to the medical diagnosis or treatment.’’
7
This court would not ordinarily address whether the trial court properly
admitted evidence pursuant to one exception of the hearsay rule when our
review reveals, as it does in this case, that the court properly admitted the
same evidence pursuant to another exception. See State v. Giovanni P.,
155 Conn. App. 322, 331–32 n.11, 110 A.3d 442, cert. denied, 316 Conn. 909,
111 A.3d 883 (2015). We do so here, however, because the defendant’s claim
raises the important question of whether the standard for admission of
forensic interview evidence under the tender years exception to the hearsay
rule is essentially coterminous with the standard for admission of the same
evidence under the medical diagnosis and treatment exception.
8
‘‘Under Crawford v. Washington, supra, 541 U.S. [68–69], the hearsay
statements of an unavailable witness that are testimonial in nature may be
admitted under the sixth amendment’s confrontation clause only if the
defendant has had a prior opportunity to cross-examine the declarant. Hear-
say statements that are nontestimonial in nature are not governed by the
confrontation clause, and their admissibility is governed solely by the rules
of evidence. . . . Thus, the threshold inquiry for purposes of the admissibil-
ity of such statements under the confrontation clause is whether they are
testimonial in nature.’’ (Internal quotation marks omitted.) State v. Maguire,
supra, 310 Conn. 564 n.14.
9
The court in Arroyo chose to dispose of the defendant’s confrontation
clause claim on the ground that the statements were not testimonial hearsay.
State v. Arroyo, supra, 284 Conn. 621. The court could have chosen, however,
to analyze the defendant’s claim under the confrontation clause on the
ground that because the victim testified at trial and was subject to cross-
examination, there could be no sixth amendment violation even if the state-
ment was testimonial. The court in Arroyo did not explain why it chose to
dispose of the confrontation clause claim on the basis that it did rather than
on some other ground.
10
We note that subsequent to Maguire, the defendant’s trial, and argument
and briefing in this appeal, the United States Supreme Court decided Ohio
v. Clark, U.S. , 135 S. Ct. 2173, 2181, 192 L. Ed. 2d 306 (2015), in
which it held that statements made by a three year old child to his school-
teacher were not testimonial under Crawford. Clark is distinguishable from
the present case in several respects. First, the statements in Clark ‘‘occurred
in the context of an ongoing emergency involving suspected child abuse
. . . [b]ecause the teachers needed to know whether it was safe to release
[the victim] to his guardian at the end of the day . . . .’’ Id. In the present
case, no similar ongoing emergency existed because the defendant was not
the victims’ guardian and their mother was therefore free to keep the victims
separated from him.
Second, in Clark, ‘‘[t]he teachers asked [the victim] about his injuries
immediately upon discovering them, in the informal setting of a preschool
lunchroom and classroom, and they did so precisely as any concerned citizen
would talk to a child who might be the victim of abuse.’’ Id. Here, however,
the victims were questioned after reporting their injuries to their mother,
in the setting of a formal interview, which was conducted systematically by
two professionals whose purpose was to elicit comprehensive information
specifically related to the nature and extent of the alleged abuse. Accord-
ingly, Clark does not undermine our conclusion that the statements in the
present case are inadmissible under the tender years exception.
11
We recognize that these questions may serve a dual purpose because
eliciting these details may, in many instances, assist medical professionals
in making a diagnosis and developing a treatment plan.
12
Again, we emphasize that the discussion in Arroyo regarding whether
the statements were testimonial was necessary only because the court was
addressing a direct Crawford challenge.
13
The concurrence asserts that the court in Maguire ‘‘recognized that,
while §§ 8-3 and 8-10 of the Connecticut Code of Evidence relate to the
admissibility of statements made, respectively, for medical purposes and
statements on other issues by children of tender years, when they result
from forensic interviews, they are ‘similar’ . . . .’’ We do not read Maguire
in the same manner. Rather, as we have discussed, the court in Maguire
stated that statements elicited during a forensic interview that are admissi-
ble under the tender years exception are similar to statements made to a
physician while seeking medical treatment, which are also admissible under
the medical treatment and diagnosis exception. See State v. Maguire, supra,
310 Conn. 569 (‘‘statements made in the course of a forensic interview that
satisfy the criteria for admission under the tender years exception are similar
to statements made to a physician in the course of medical treatment, which
are admissible under the medical treatment and diagnosis exception to the
hearsay rule’’). Thus, the court’s comparison pertained only to statements
deemed admissible under both exceptions. We do not read this language
to mean that a statement inadmissible under the tender years exception
will always be inadmissible under the hearsay exception for statements
made for medical treatment.
The concurrence asserts that ‘‘[o]ur Supreme Court has addressed both
[§§ 8-3 and 8-10 of the Connecticut Code of Evidence] in Maguire and, by
inference, has given us the ‘primary purpose’ guide for the medical treatment
exception.’’ As discussed in the preceding paragraph, the court in Maguire
did not consider whether the statements challenged in that case were admis-
sible under the medical treatment and diagnosis exception to the hearsay
rule, but only whether they were admissible under the tender years excep-
tion. Thus, contrary to the concurrence’s assertion, Maguire does not suggest
that the primary purpose inquiry governs the admissibility of forensic inter-
view statements under the medical diagnosis and treatment exception.
Finally, we note that although the challenged statements in Arroyo were
offered under the medical diagnosis and treatment exception; see State v.
Arroyo, supra, 284 Conn. 625; and the court therein engaged in a primary
purpose analysis to determine whether their admission was barred by the
sixth amendment; id., 626–36; the primary purpose analysis would have been
entirely unnecessary in the absence of a Crawford challenge. The court
engaged in the primary purpose analysis in Arroyo only because the defen-
dant in Arroyo raised a direct confrontation clause claim under the sixth
amendment. Id., 625. In fact, the court in Arroyo determined, apart from
its primary purpose analysis, that the trial court properly admitted the
victim’s statements pursuant to the medical diagnosis and treatment excep-
tion to the hearsay rule. See id., 635 n.23. In doing so, it concluded, inter
alia, that the challenged statements were made ‘‘in furtherance of obtaining
medical treatment . . . .’’ Id. This separate analysis apart from the primary
purpose inquiry further suggests that the court did not consider the primary
purpose test to govern the admissibility of statements under the medical
diagnosis and treatment exception.
14
The concurrence in footnote 2 cites to two portions of C. Tait & E.
Prescott, Connecticut Evidence (4th Ed. 2008) § 8.4.2, p. 465, in support of
its conclusion that the statements were inadmissible under the hearsay
exception for statements made for purposes of obtaining medical diagnosis
or treatment. Neither of these references supports its conclusion that the
statement should not have been admitted under that exception.
First, the concurrence quotes a portion of the treatise that discusses the
theoretical bases for hearsay exceptions in general, which bases include
‘‘some consideration of necessity.’’ Id. The concurrence states that ‘‘defense
counsel’s objection on the [ground of] lack of any necessity was persuasive
because both children had already testified under oath.’’ Necessity, however,
is an express requirement that a proponent must meet only for the residual
exception to the hearsay rule. See Conn. Code Evid. § 8-9. With respect to
the hearsay exception for statements made for purposes of obtaining medical
diagnosis or treatment, necessity is not an important consideration because
the exception exists even if the declarant, as in this case, is available as a
witness. See C. Tait & E. Prescott, Connecticut Evidence (5th Ed. 2014)
§ 8.4.2, pp. 510–11. Indeed, § 8-3 of the Connecticut Code of Evidence explic-
itly provides: ‘‘The following are not excluded by the hearsay rule, even
though the declarant is available as a witness . . . (5) Statement for pur-
poses of obtaining medical diagnosis or treatment.’’ Instead, such statements
are admitted under the exception in the absence of necessity and even if
the declarant testifies, because such statements are made ‘‘under circum-
stances in which there is a motive to tell the truth, or at least a motive to
lie is unlikely.’’ C. Tait & E. Prescott, supra, § 8.4.2 (b) (3), p. 512.
Second, the concurrence also cites to the treatise’s concern that state-
ments made to law enforcement or investigative agencies should be ‘‘care-
fully reviewed’’ because they ‘‘may be less than voluntary or may be
motivated by the incentive to generate evidence.’’ C. Tait & E. Prescott,
Connecticut Evidence (4th Ed. 2008) § 6.37.5, p. 391. As the concurrence
concedes, however, these concerns are contained in the treatise’s analysis
of the constancy of accusation rule, and the statements in this case were
not offered under that rule. In sexual assault cases, however, statements
made by adult victims to health care providers for necessary medical diagno-
sis and treatment following a sexual assault are routinely admitted for
substantive purposes under § 8-3 (5) of the Connecticut Code of Evidence.
In this case, the issue we must decide is whether the children’s statements
during the interviews were reasonably pertinent to obtaining medical diagno-
sis or treatment. Under that standard, which we determined differs from
and is more relaxed than the tender years exception, we must conclude
that the court did not abuse its discretion in admitting the statements.
15
Although the prosecutor’s comments were not improper in the context
of this case, we encourage counsel who believe that opposing counsel has
presented argument not permitted by the Code of Evidence to seek an
instruction from the court directing the jury to disregard the improper
argument.
16
The defendant also claims that the prosecutor improperly expressed
the opinion that the defendant was ‘‘abnormal.’’ As previously discussed,
we have concluded that the comments underlying this claim were a proper
response to arguments made by defense counsel at closing argument. See
part II A of this opinion. For this reason, we do not address them again here.