State v. Albert D.

196 Conn.App. 155

229 A.3d 1176

STATE of Connecticut

v.ALBERT D.^*

AC 42745

Appellate Court of Connecticut.

Argued November 21, 2019

Officially released March 3, 2020

Lisa J. Steele, assigned counsel, for the appellant (defendant).

Nancy L. Chupak, senior assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and, Elizabeth C. Leaming, senior assistant state's attorney, for the appellee (state).

Alvord, Moll and Bishop, Js.

MOLL, J.

The defendant, Albert D., appeals from the judgments of conviction, rendered following a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2),¹ one count of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a)² and 53a-70 (a) (2), three counts of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A),³ and six counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2).⁴ On appeal, the defendant claims that he is entitled to a new trial on the basis of alleged prosecutorial improprieties during the state's rebuttal closing argument. Specifically, the defendant contends that the prosecutor (1) incorrectly stated that the state's experts were not allowed to meet with the victims, and (2) improperly vouched for her own credibility and the credibility of one of the state's witnesses. The defendant further argues that the improprieties resulted in a denial of his due process right to a fair trial pursuant to the six factor test set forth in State v. Williams , 204 Conn. 523, 540, 529 A.2d 653 (1987). We conclude that the prosecutor's comments with regard to the purported inability of the state's experts to meet with the victims constituted an impropriety that, nevertheless, did not deprive the defendant of his due process right to a fair trial. We further conclude that the prosecutor's comments with respect to her own credibility and the credibility of one of the state's witnesses were not improper. Accordingly, we affirm the judgments of conviction.

The jury reasonably could have found the following facts. Sometime in 2003, the victims, T and A, and their parents moved into a house in Willington. T is A's older sister. T was in second grade and approximately eight years old. The defendant and his wife, who are the victims' paternal grandparents, lived in a neighboring house.⁵ T saw her grandparents every day, and most of these visits occurred at her grandparents' home. T testified that she would often spend time in the defendant's bedroom watching television while the defendant slept in his bed. While T would watch television, the defendant began to sexually abuse her by way of digital anal penetration. T testified that A, who had a particularly close relationship with the defendant's wife, would also be at the defendant's home, yet would remain downstairs during these episodes. T further testified that this sexual abuse would occur "[v]ery often" and "almost every time" that she would visit her grandparents' home, from the time she began second grade in 2003 until prior to the beginning of sixth grade, when her family moved to North Carolina in 2007.⁶ In addition, T described several other forms of sexual abuse perpetrated by the defendant. Each of those abuses occurred one time.

In 2005 or 2006, when A was eight or nine years old, she was watching television in the defendant's bedroom while the defendant appeared to be sleeping next to her on the bed. The defendant then lifted her shirt and proceeded to touch her breasts. A maintained that this occurrence was the only instance of abuse she suffered from the defendant. The defendant did not abuse T or A once they returned from North Carolina.

On July 14, 2015, T disclosed to her father that she had been sexually abused by the defendant. Her father drove to the defendant's residence and confronted the defendant about the accusation. Patrick O'Brien, a patrol trooper with the Connecticut State Police, responded to the defendant's home as a result of the defendant's call to the police, indicating that he had been accosted by the victims' father, who had accused the defendant of sexually assaulting T. In order to investigate further, Trooper O'Brien proceeded to the victims' residence, which was approximately twenty or thirty minutes away. Once there, Trooper O'Brien spoke with both victims but did not record a statement at that time.⁷

Scott Crevier, a detective with the Connecticut State Police, took written statements from T and A on July 15, 2015. T explained that she believed the abuse began in 2001. On August 10, 2015, T provided a second statement wherein she stated that the abuse actually began in 2003. Detective Crevier also interviewed the defendant and his wife on two occasions in August and September, 2015. In his two statements, the defendant explained that during "several strange incidents," T had initiated inappropriate sexual contact with him while he was napping in his bedroom, and he confirmed that he never told anyone about them.⁸ The defendant was later arrested pursuant to two arrest warrants.

By way of amended substitute informations, the state charged the defendant in two separate informations⁹ with respect to the abuse of his granddaughters. With regard to T, the operative information charged the defendant with three counts of sexual assault in the first degree, one count of attempted sexual assault in the first degree, two counts of sexual assault in the fourth degree, and six counts of risk of injury to a child. With regard to A, the operative information charged the defendant with one count of sexual assault in the fourth degree and one count of risk of injury to a child. The defendant pleaded not guilty to all counts and elected to be tried by a jury.

On November 3, 2017, following a jury trial, the defendant was convicted of all counts charged with respect to T, with the exception of one count of sexual assault in the first degree and one count of risk of injury to a child, and both counts charged with respect to A. On March 6, 2018, the court imposed a total effective sentence of twenty-five years of incarceration, followed by ten years of special parole with a lifetime sex offender registration. This appeal followed. Additional facts will be provided as necessary.

On appeal, the defendant's sole claim relates to two instances of purported prosecutorial impropriety during the state's rebuttal closing argument, which he concedes were not objected to at trial. We first set forth the standard of review and the general principles of law applicable to claims of prosecutorial impropriety.

"[I]n analyzing claims of prosecutorial [impropriety], we engage in a two step analytical process. The two steps are separate and distinct: (1) whether [impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial.... [W]hen 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 ...." (Citation omitted; internal quotation marks omitted.) State v. Taft , 306 Conn. 749, 761–62, 51 A.3d 988 (2012). "Once prosecutorial impropriety has been alleged ... it is unnecessary for a defendant to seek to prevail under State v. Golding , [213 Conn. 233, 239–40, 567 A.2d 823 (1989) ], and it is unnecessary for an appellate court to review the defendant's claim under Golding .... The reason for this is that the touchstone for appellate review of claims of prosecutorial [impropriety] is a determination of whether the defendant was deprived of his right to a fair trial, and this determination must involve the application of the factors set out by this court in [ Williams ]." (Internal quotation marks omitted.) State v. King , 289 Conn. 496, 509–10, 958 A.2d 731 (2008).

If we conclude that prosecutorial impropriety occurred, we then decide whether the defendant was deprived of his due process right to a fair trial by considering "[1] the extent to which the [impropriety] was invited by defense conduct or argument ... [2] the severity of the [impropriety] ... [3] the frequency of the [impropriety] ... [4] the centrality of the [impropriety] to the critical issues in the case ... [5] the strength of the curative measures adopted ... and [6] the strength of the state's case." (Citations omitted.) State v. Williams , supra, 204 Conn. at 540, 529 A.2d 653. "As is evident upon review of these factors, it is not the prosecutor's conduct alone that guides our inquiry, but, rather, the fairness of the trial as a whole.... In addition, the fact that the defendant did not object to the remarks at trial is part of our consideration of whether a new trial or proceeding is warranted ...." (Citation omitted; internal quotation marks omitted.) State v. Weatherspoon , 332 Conn. 531, 556–57, 212 A.3d 208 (2019).

I

A

The defendant first argues that the prosecutor committed an impropriety in her rebuttal closing argument by arguing that the state's experts were not allowed as a matter of law to meet with the victims. In response, the state contends that the statements at issue must be viewed in the context in which they were made. According to the state, that context makes clear that the prosecutor was simply explaining why the experts must testify in general terms and why their generalizations were still relevant to the case. We agree with the defendant that the prosecutor's statements that the state's experts were not allowed as a matter of law to meet with the victims constituted an impropriety.

The following additional facts are relevant to our analysis. During the trial, the state presented the testimony of two experts. First, Lisa Murphy-Cipolla, a clinical services coordinator at the Greater Hartford Children's...