State v. Artiaco

181 Conn.App. 406

186 A.3d 789

STATE of Connecticut

v.William A. ARTIACO

AC 40020

Appellate Court of Connecticut.

Argued March 5, 2018

Officially released April 24, 2018

Robert J. McKay, assigned counsel, for the appellant (defendant).

Lisa A. Riggione, senior assistant state's attorney, with whom were Bonnie R. Bentley, senior assistant state's attorney, and, on the brief, Anne F. Mahoney, state's attorney, and Matthew Crockett, senior assistant state's attorney, for the appellee (state).

DiPentima, C.J., and Bright and Flynn, Js.

DiPENTIMA, C.J.

The defendant, William A. Artiaco, appeals from the judgments of conviction, rendered after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a–70(a)(2) and two counts of risk of injury to a child in violation of General Statutes § 53–21(a)(2). On appeal, the defendant claims that (1) the trial court abused its discretion in precluding the testimony of his expert witness and (2) he was deprived of a fair trial due to prosecutorial impropriety during closing argument. We disagree and, accordingly, affirm the judgments of conviction.

The state filed two substitute informations against the defendant, each charging him with one count of sexual assault in the first degree and risk of injury to a child. One information charged the defendant with committing the offenses in Putnam and the other with committing the offenses in East Windsor. Both substitute informations alleged that the criminal conduct occurred between 1998 and May 5, 2003, and that the victim was the same in both cases.¹ The defendant's trial commenced on June 1, 2011, and concluded on June 8, 2011, with convictions on all four counts.² Following his convictions, the court imposed a total effective sentence of twenty years incarceration and ten years of special parole.³ This appeal followed.⁴

I

The defendant first claims that the court abused its discretion in precluding the testimony of his expert witness. Specifically, he argues that the court improperly determined that his expert witness, James Connolly, a psychologist and attorney, was not qualified "to be deemed an expert in child abuse in this matter, as he demonstrated to the trial court that [he] had a special skill or knowledge directly applicable to a matter in issue, that his skill or knowledge is not common to the average person, and that the testimony would be helpful to the court or jury in considering the issues."⁵ Because the argument presented on appeal differs from the one raised before the trial court, we decline to review this issue.

The following additional facts are necessary. Following the conclusion of the state's case, the defendant sought to have Connolly testify as an expert witness. The state requested and received permission to voir dire Connolly regarding his qualifications to testify in the present case. Outside of the presence of the jury, defense counsel and the prosecutor questioned Connolly about his education and experience. During argument, defense counsel expressly stated that his "proffer is that [Connolly] will comment on whether or not the [forensic] interview [of the victim] was well conducted."⁶ The state countered that he lacked the training, knowledge, experience and skill to assist the jury in determining whether the forensic interviews of the victim had been conducted properly. The court determined that he was not qualified as an expert on forensic interviews of child victims of sexual abuse.⁷

On appeal, the defendant does not claim that the court erred in excluding Connolly's testimony as to whether the forensic interview of the victim was conducted properly. Instead, he now argues that Connolly was well qualified to opine on inconsistencies in the victim's trial testimony and recorded interviews and his opinions could have been used to impeach her credibility. This differs markedly from the proffer made at trial, where defense counsel sought to have Connolly review the propriety of the forensic interview techniques and protocols used for child sexual abuse victims.

The trial court's preclusion of Connolly as an expert witness is an evidentiary ruling. State v. Campbell , 149 Conn. App. 405, 425–27, 88 A.3d 1258, cert. denied, 312 Conn. 907, 93 A.3d 157 (2014). "Appellate review of evidentiary rulings is ordinarily limited to the specific legal [ground] raised by the objection of trial counsel .... To permit a party to raise a different ground on appeal than [that] raised during trial would amount to trial by ambuscade, unfair both to the trial court and to the opposing party." (Internal quotation marks omitted.) State v. Bennett , 324 Conn. 744, 761, 155 A.3d 188 (2017) ; see State v. Holloway , 117 Conn. App. 798, 813–14, 982 A.2d 231 (2009), cert. denied, 297 Conn. 925, 998 A.2d 1194 (2010) ; see generally State v. Paul B. , 143 Conn. App. 691, 700, 70 A.3d 1123 (2013) (assigning error to court's evidentiary ruling on basis of objections never raised at trial unfairly subjects court and opposing party to trial by ambush), aff'd, 315 Conn. 19, 105 A.3d 130 (2014) ; State v. Scott C. , 120 Conn. App. 26, 34, 990 A.2d 1252 (we consistently decline to review claims based on ground different from that raised in trial court), cert. denied, 297 Conn. 913, 995 A.2d 956 (2010).

Accordingly, we decline to review this unpreserved evidentiary claim.⁸

II

The defendant next claims that he was deprived of a fair trial due to prosecutorial impropriety in closing argument. Specifically, he argues that the prosecutor improperly stated to the jury during his closing argument that (1) the defendant had lied and that the victim lacked a motive to lie and (2) the victim had been consistent in her trial testimony and prior disclosure to her friends that the defendant had sexually assaulted her.⁹ We conclude that the prosecutor's statements were not improper, and therefore this claim must fail.¹⁰

"Our jurisprudence concerning prosecutorial impropriety during closing argument is well established. [I]n analyzing claims of prosecutorial [impropriety], we engage in a two step analytical process. The two steps are separate and distinct: (1) whether [impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial. Put differently, [impropriety] is [impropriety], regardless of its ultimate effect on the fairness of the trial; whether that [impropriety] caused or contributed to a due process violation is a separate and distinct question .... [W]hen a defendant raises on appeal a claim that improper remarks by the 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. Thomas , 177 Conn. App. 369, 405, 173 A.3d 430, cert. denied, 327 Conn. 985, 175 A.3d 43 (2017) ; see also State v. Walton , 175 Conn. App. 642, 647, 168 A.3d 652, cert. denied, 327 Conn. 970, 173 A.3d 390 (2017).

The defendant baldly asserts that the prosecutor argued to the jury that the defendant lied during his testimony. He offers no citation to the transcript to support this contention, and in our own review of the transcript we found no such statement by the prosecutor. The prosecutor did state to the jury that the defendant possessed a motive to lie based on the seriousness of the charges and that the victim had no such motive to lie. "It is permissible for a prosecutor to explain that a witness either has or does not have a motive to lie." State v. Ancona , 270 Conn. 568, 607, 854 A.2d 718 (2004), cert. denied, 543 U.S. 1055, 125 S.Ct. 921, 160 L.Ed. 2d 780 (2005) ; State v. Reddick , 174 Conn. App. 536, 562, 166 A.3d 754, cert. denied, 327 Conn. 921, 171 A.3d 58 (2017), cert. denied, ––– U.S. ––––, 138 S.Ct. 1027, 200 L.Ed. 2d 285 (2018) ; see also State v. Thompson , 266 Conn. 440, 466, 832 A.2d 626 (2003) (prosecutor's comments regarding witness' motive to lie were proper); State v. Carlos E. , 158 Conn. App. 646, 664, 120 A.3d 1239(permissible for state to make arguments regarding witness' credibility if based on reasonable inferences from evidence), cert. denied, 319 Conn. 909, 125 A.3d 199 (2015). We conclude, therefore, that the defendant has failed to demonstrate that the challenged comments constituted improper argument to the jury.

Finally, the defendant contends that the prosecutor improperly argued to the jury that the victim consistently had claimed that the defendant sexually assaulted her, including when she disclosed his action to two of her friends in the sixth and seventh grades. The defendant contends that these two friends testified that the victim had stated that she had been "molested" but that she had not used the phrase "sexually assaulted." We are not persuaded that the prosecutor improperly mischaracterized the evidence or shifted the burden of proof to the defendant to disprove the state's witnesses. Considering the context of the entire trial and the closing arguments; see State v. Washington , 155 Conn. App. 582, 606, 110 A.3d 493 (2015) ; we conclude that the prosecutor's comments were not improper. During the trial, the witnesses used the verb "molest" synonymously with the phrase "sexual assault" in describing the defendant's conduct.¹¹ The challenged comments were based on the evidence at trial, and did not mischaracterize the evidence or shift the burden of proof to the defendant. See State v. Betancourt , 106 Conn. App. 627, 641, 942 A.2d 557 (asking jury to believe witness unless there is evidence to discredit that witness is proper and in no way shifts burden of proof), cert. denied, 287 Conn. 910, 950 A.2d 1285 (2008). Accordingly, we reject this argument.

The judgments are affirmed.

In this opinion the other judges concurred.

1 In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk...