State v. Danovan T.

176 Conn.App. 637

170 A.3d 722

STATE of Connecticut

v.DANOVAN T.^*

AC 38727.

Appellate Court of Connecticut.

Argued April 17, 2017

Officially released September 26, 2017

Richard Emanuel, for the appellant (defendant).

Matthew A. Weiner, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Anthony Bochicchio, senior assistant state's attorney, for the appellee (state).

Mullins, Beach and Harper, Js.

HARPER, J.

The defendant, Danovan T., appeals from his conviction of two counts of risk of injury to a child in violation of General Statutes § 53–21 (a) (2). In this appeal, he argues that his conviction should be reversed because (1) certain improprieties by the prosecutor deprived him of his general due process right to a fair trial and (2) the trial court improperly restricted his right to present impeachment evidence against the state's witnesses, thereby depriving him of his constitutional right to confront the witnesses against him. For the reasons that follow, we reject these arguments and affirm the judgment of the trial court.

The following procedural history and facts, which the jury reasonably could have found, are relevant to this appeal. At the time of the events giving rise to the defendant's conviction, he was living in a home in Enfield with the victim, S.R., the victim's mother, S, and another female child, C. S had another child, A, who was older than the other children and who, at the time of S.R.'s molestation, was living out-of-state with her biological father. The defendant is the biological father of C, but not S.R. The defendant has known S.R. and been involved in her life since 2007 or 2008, although he did not live with her until late 2012 or early 2013, a few months before the molestation occurred. In the Enfield home, the defendant shared one bedroom with S, and the children shared another bedroom.

On the night of June 5, 2013, the defendant slept in the living room, rather than in the bedroom he shared with S. Sometime during the night, he entered the girls' bedroom, removed S.R.'s pants, and began touching and scratching her genitals, and digitally penetrating her. S.R. awoke during this assault and grabbed the defendant's arm, digging her fingernails in to it. The defendant continued to abuse S.R. in this manner. Eventually, he stopped, pulled up her pants, and left the room. S.R. reported this incident to S the next morning.

Thereafter, S awoke the defendant, who was still sleeping in another room, and confronted him with the allegations. The defendant replied, "You know, this isn't the first time that someone has said I've done this to them. A long time ago, my—my other daughter said I did the same thing to her but her mother didn't believe her."¹ The defendant stated he had never mentioned the prior allegations because, "Well [the girl's] mother didn't believe her, so I didn't think it was true, but now [S.R. is] the second person that says it now, so it must be true. It must be true."

Later that morning, S took S.R. to New England Urgent Care. S.R. was examined by Jeffery Sievering, a physician's assistant, who found that S.R.'s clitoris was enlarged, which was potentially indicative of "repeated trauma or manipulation." Thereafter, S took S.R. to the Enfield Police Department and then to St. Francis Hospital in Hartford. At the hospital, a second medical examination was performed by Audrey B. Courtney, a nurse practitioner, using a sexual assault forensic collection kit. The medical examination did not produce information that either supported or refuted S.R.'s allegations. Courtney produced a report about this exam that included the statement, "[S] states that [the defendant's] [fifteen] year old daughter said the same thing happened to her." S.R. also underwent a forensic interview at the hospital in which she stated that the defendant had touched her in a similar manner on two prior occasions approximately one month earlier. At trial, S.R. testified that she had not reported the incidents to her mother because she feared she would not be believed. She stated that she had decided to tell her mother this time because she still felt pain the next morning.

David Thomas, a detective with the Enfield Police Department, observed the forensic interview and later made arrangements to meet with the defendant on June 10, 2013, at the New Haven Police Department, which was closer to the defendant's place of employment. During that meeting, Thomas asked whether S.R.'s allegations were true, and the defendant responded, "I can't say that she's lying," and that he did not remember the incident. The defendant also made other statements relevant to his claims in this appeal, including that he had been accused of similar conduct by a different stepdaughter from a prior relationship, and that S had observed A, who no longer lived with them, engaging in some kind of sexual conduct. At the end of the interview, the defendant signed a written statement that on the night in question, he had entered the bedroom and checked to see if S.R. had urinated in her bed.

A second interview was arranged between Thomas and the defendant to take place at the Manchester Police Department.² Because the defendant did not have a car, Thomas met the defendant at his workplace in North Haven to transport him to Manchester. In the car, before leaving, the defendant initiated a conversation by stating, "I must have done it." The defendant then alluded to a "sleepwalking type of thing where ... sexual contact would happen." The defendant provided Thomas with a signed written statement regarding this conversation which stated, "I would like to give the Enfield police the following truthful statement. I would like to admit that there is a high probability that I inappropriately touched [S.R.] in her groin on Thursday morning, June 6, 2013."

The defendant was arrested on June 17, 2013, and charged with one count of sexual assault in the first degree in violation of General Statutes § 53a–70 and two counts of risk of injury to a child in violation of § 53–21 (a) (2). After a jury trial, the jury was unable to reach a verdict on the charge of sexual assault in the first degree,³ but returned guilty verdicts on the two charges of risk of injury to a child. Thereafter, the court sentenced the defendant to a total effective sentence of twenty-five years imprisonment followed by fifteen years of special parole with special conditions. This appeal followed. Additional facts and procedural history will be set forth as necessary.

On appeal, the defendant argues that the prosecutor committed several improprieties that deprived him of a fair trial in violation of the due process clauses of the federal and state constitutions.⁴ He also argues that he was deprived of his right to confront the witnesses against him under the federal and state constitutions.⁵

The state responds that the defendant's arguments mischaracterize the prosecutor's conduct and other details of the case, and should be rejected. We disagree with the defendant and affirm the judgment of the trial court.

I

The defendant's claim that prosecutorial improprieties deprived him of a fair trial is composed of three distinct claims. First, he asserts that the state's attorney made an improper "golden rule" argument, which is an argument that appeals to emotion, during closing argument in asking the jury to consider whether the defendant's reaction to the allegations was consistent with innocence. Second, he claims that the state's attorney mischaracterized the medical testimony of Sievering during closing argument in a manner that suggested that sexual assault was the cause of certain physical symptoms Sievering had observed in S.R. rather than merely a possible cause . Third, he contends that the state's attorney improperly facilitated the admission into evidence of a medical report that contained prior misconduct evidence. He argues that these improprieties so infected the trial with unfairness as to make the resulting conviction a denial of due process. The state disagrees with the defendant's assertions that the prosecutor committed any improprieties. We will address each of these claims in turn, setting forth additional facts as necessary.⁶

We begin by setting forth our standard of review that is applicable to each of the defendant's prosecutorial impropriety claims. In analyzing claims that prosecutorial improprieties deprived a defendant of a fair trial, "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." (Internal quotation marks omitted.) State v. Payne , 303 Conn. 538, 560–61, 34 A.3d 370 (2012). The two steps of this analysis are separate and distinct, and we may reject the claim if we conclude the defendant has failed to establish either prong. Id.

"[O]ur determination of whether any improper conduct by the state's attorney violated the defendant's fair trial rights is predicated on the factors set forth in State v. Williams , [ 204 Conn. 523, 540, 529 A.2d 653 (1987) ], with due consideration of whether that misconduct was objected to at trial. ... These factors include: the extent to which the [impropriety] was invited by defense conduct or argument ... the severity of the [impropriety] ... the frequency of the [impropriety] ... the centrality of the [impropriety] to the critical issues in the case ... the strength of the curative measures adopted ... and the strength of the state's case." (Citation omitted; internal quotation marks omitted.)

State v. Payne , supra, 303 Conn. at 561, 34 A.3d 370. "[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, not only that the...