State v. Felix R.

319 Conn. 1

124 A.3d 871

STATE of Connecticut

v.FELIX R.^*

No. 19278.

Supreme Court of Connecticut.

Argued March 19, 2015.

Decided Oct. 6, 2015.

James M. Ralls, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Michael A. Pepper, senior assistant state's attorney, for the appellant (state).

Stacey Van Malden, pro hac vice, with whom, on the brief, was Robert C. Ross, West Haven, for the appellee (defendant).

Opinion

ESPINOSA, J.

The sole issue in this certified appeal is whether the Appellate Court properly concluded that the prosecutor had deprived the defendant of his due process right to a fair trial by engaging in prosecutorial impropriety during closing argument. The state appeals, following our grant of certification, from the judgment of the Appellate Court reversing the judgment of the trial court convicting the defendant, Felix R., of two counts of sexual assault in the first degree in violation of General Statutes § 53a–70(a)(1), two counts of sexual assault in the third degree in violation of General Statutes § 53a–72a(a)(2), one count of sexual assault in the fourth degree in violation of General Statutes § 53a–73a(a)(1)(E), and three counts of risk of injury to a child in violation of General Statutes § 53–21(a)(2). The state claims that the Appellate Court improperly determined that prosecutorial improprieties occurred and that those improprieties deprived the defendant of a fair trial.¹We conclude that the majority of the challenged remarks were not improper. As to the remaining remark, although the state has conceded that it was improper, we conclude that that comment did not deprive the defendant of a fair trial and, accordingly, we reverse the judgment of the Appellate Court.

The Appellate Court set forth the following relevant facts, which the jury reasonably could have found. “The [victim], the defendant's daughter, was born in the Dominican Republic to parents who never married one another. The defendant moved to the United States, and the [victim] continued to live with her mother in the Dominican Republic until 2005 when she moved to the United States to live with the defendant and her paternal grandmother. At the time she came to the United States, [the victim] was ten years old and spoke no English....

“The defendant began to touch the [victim] in a sexual manner approximately three months after she arrived in Connecticut. On occasion the defendant tried to kiss her and have her touch his penis. In 2006, the defendant took the [victim] to a [child guidance] clinic because she wept frequently, was having difficulty sleeping, and was anxious. When she was seen at the clinic, the [victim] did not mention the defendant's sexual advances toward her because the defendant had threatened to hurt her if she told anyone about it....

“The [victim] attempted to tell her mother about the defendant's sexual advances by writing her a letter. She asked the defendant to deliver the letter when he traveled to the Dominican Republic. The [victim] does not know whether her mother ever received the letter. In late 2007 or early 2008, the [victim] and the defendant together visited the Dominican Republic. During their visit, the [victim] told her paternal aunt that the defendant abused her. The paternal aunt confronted the defendant, who denied the accusations of abuse.... In late 2008, the [victim's] maternal aunt, Mercedes, asked the [victim] about a letter in which the [victim] had stated that she did not want to live with the defendant and threatened to commit suicide. The [victim] told Mercedes that the contents of the letter were untrue. In March, 2009, a representative of the Department of Children and Families (department) visited the [victim] at her school. When the representative from the department asked the [victim] whether she was being sexually abused, the [victim] gave a negative response. The [victim] later stated that she was afraid to tell anyone about the defendant's sexual advances because she was fearful; the defendant was sometimes aggressive. The [victim] did not know who had contacted the department about her situation.

“On the morning of May 9, 2009, when the [victim] was fourteen, the defendant awakened her by touching her breasts. The defendant held the [victim's] hands above her head and took off her pajamas. The [victim] asked the defendant to stop, but he covered her mouth, told her to shut up, and forced her to engage in sexual intercourse. The defendant used a condom, but it broke. The [victim] saw ‘white stuff’ in the broken condom and on her body. The defendant instructed the [victim] not to tell anyone what had occurred. Later that morning, the defendant purchased a pregnancy test and Plan B (morning after pill). He directed the [victim] to take one of the morning after pills and gave her a second pill approximately twelve hours later. On May 12, 2009, the defendant gave the [victim] a pregnancy test, which produced a negative result....

“On ... May 28, 2009, the defendant touched the [victim] while she was sleeping. The [victim] awakened, pushed the defendant away, and slapped him. The defendant left the [victim] alone but warned her not to tell anyone or he would do something to her.

“The [victim] went to school and reported the defendant's sexual abuse to her guidance counselor. She told her guidance counselor that the defendant had touched her breasts that morning and had done so many times previously. She also told him that the defendant had penetrated her and threatened to send her back to the Dominican Republic if she told anyone about it. Moreover, the [victim] also stated that she was afraid to go home from school. The guidance counselor telephoned the department hotline to report what the [victim] had told him.... The department placed the [victim] in foster care that day.

“Later, on the evening of May 28, 2009, department personnel informed the defendant of the [victim's] accusations and that she was being removed from his home. The defendant denied having abused the [victim].... He claimed that the [victim] was angry with him for having confronted her about [a] boy. He acknowledged, however, that during the previous year, the [victim's] mother had accused him of having sexually abused the [victim].

“Detective John Ventura [of the Wallingford Police Department] interviewed the defendant. The defendant told Ventura that, on a couple of occasions, he had taken the [victim] to the hospital for an evaluation because he thought she was having sex with a boy. The defendant claimed that the hospital had refused to see the [victim] on those occasions for ‘ethical reasons.’ The defendant also informed Ventura that the [victim] slept in his bed because she was not getting along with her paternal grandmother, and that he saw nothing wrong with the [victim] sleeping with him. When Ventura asked the defendant if he had purchased a pregnancy test for the [victim], the defendant became excited and extremely nervous. He denied having purchased a pregnancy test and claimed that the [victim] had used his credit card without telling him why. He also denied that he had bought the [victim] a morning after pill.

“The following day, however, the defendant telephoned Ventura and admitted that he had purchased a morning after pill and a pregnancy test for the [victim]. The defendant's credit card statement, a Walgreens electronic report and its surveillance photographs confirmed that the defendant had made the subject purchases at 10:02 a.m. on May 9, 2009. The defendant explained to Ventura that he had not been truthful when Ventura was questioning him because he was embarrassed that the [victim] was having unprotected sex with boys.

“On June 1, 2009, a social worker from the Yale Child Sexual Abuse Clinic, Theresa Montelli, conducted a forensic interview of the [victim]. Although the [victim] told Montelli that no one other than the defendant had ever touched her sexually, she testified at trial that she had had sex with two boys.

“In early June, 2009, a pediatric nurse practitioner, Janet Murphy, conducted a physical examination of the [victim]. According to Murphy, the [victim's] vaginal examinationwas normal, which was not dispositive of whether the [victim] had had sexual intercourse. The [victim's] blood and urine tests, however, indicated she was pregnant. Within days of Murphy's examination, the [victim] had a miscarriage while she was at school. Although medical tests were inconclusive as to who had impregnated her, Beth Rackow, an obstetrician and gynecologist who examined the [victim] on June 8, 2009, testified that the [victim's] pregnancy was consistent with her having had sexual intercourse and become pregnant on May 9, 2009, notwithstanding the negative May 12, 2009 pregnancy test....

“In mid-June, 2009, department social workers Anamaris Colon and [Tira] Gant met with the defendant to inform him that the department was considering placing the [victim] with one of her maternal aunts, either Elka or Mercedes, in New York. The defendant objected to placing the [victim] with her maternal aunts ... claiming that they would not be good supervisors. He asserted that, when the [victim] had visited her aunts during the Memorial Day weekend, she had run away for fourteen hours and had sex with a boy named Jonathan. The [victim], Mercedes, and the New York equivalent of the department denied that the [victim] had run away for fourteen hours. The defendant reported to Colon and Gant that the [victim] ‘was pretty much loose with the boys' and that she had accused him of sexual assault because she was afraid that he would punish her. He also reported that the [victim] had posted an image of her face and a penis on her social network website. The [victim] provided Colon with access to the website, but Colon was unable to locate the alleged image during an extended search....

“The defendant was arrested in January, 2010, and charged with various crimes. ...