State v. Henry D.

163 Conn.App. 265

163 A.3d 642

STATE of Connecticut

v.HENRY D.^*

AC 37118

Appellate Court of Connecticut.

Argued January 5, 2017

Officially released May 16, 2017

Raymond L. Durelli, assigned counsel, for the appellant (defendant).

Adam E. Mattei, assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Cornelius P. Kelly, supervisory assistant state's attorney, for the appellee (state).

Lavine, Keller and Pellegrino, Js.

LAVINE, J.

The defendant, Henry D., appeals from the judgment of conviction, rendered after a jury trial, of 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) and one count of risk of injury to a child in violation of General Statutes § 53–21 (a) (2). The defendant claims that (1) the trial court abused its discretion in admitting into evidence the victim's recorded forensic interview as a prior consistent statement, and (2) the prosecutor committed an impropriety when he used a puzzle analogy in his rebuttal closing argument. We affirm the judgment of the trial court.

The following evidence was presented at trial. The defendant lived with the twelve-year-old victim, N.A., and the victim's mother, T.M., in an apartment on the second floor of a three story house. N.A. had an older sister, K.D., who did not live with them, and a brother who lived on the first floor with their grandmother. The defendant slept on the couch while N.A. and T.M. each had a bedroom.

Approximately one or two weeks before August 5, 2008, between 2 a.m. and 3 a.m., N.A. was playing cards in the kitchen with the defendant. After they finished their game, N.A. went into her bedroom to watch television. Shortly thereafter, the defendant went into N.A.'s bedroom and sat at the foot of the bed next to her. He then got on top of her and kissed her lips and breasts and rubbed his fingers between her pants and underwear. He grabbed her arm, took her off the bed, and told her to bend over with her hands on the bed. He took off her shorts and underwear and "tried to put his penis in [her] butt." After he tried to anally penetrate N.A., he pushed her to her knees and "put [her] hand on his penis and he tried to put his penis in [her] mouth." He then grabbed her arms, put her back on the bed, and put his penis in her vagina.

A day or two later, N.A. asked K.D. to visit her. When K.D. arrived, N.A. told her about the defendant's assault, and K.D. relayed this information to T.M. As soon as K.D. told T.M. about the assault, the defendant left the apartment. No one called the police at that time.

John Maloney, a clinical coordinator at a therapeutic treatment center, was the family's therapist, and he often counseled N.A., her siblings, and T.M. together and individually. On September 24, 2008, N.A. told Maloney that a relative had assaulted her. Maloney called T.M. and reported the disclosure to the Department of Children and Families. After receiving this information from Maloney, T.M. contacted the police and took N.A. to a gynecologist to be tested for sexually transmitted diseases and to undergo a physical examination. On October 7, 2008, N.A. participated in a video recorded forensic interview (interview) with Donna Vitalauno, a social worker. The defendant was arrested in September, 2012.

The defendant was charged with sexual assault in the first degree in violation of General Statutes § 53a–70 (a) (2) and risk of injury to a child in violation of § 53–21 (a) (2). During the trial, the state filed an amended information charging the defendant, in addition to the charge of sexual assault in the first degree, with attempt to commit sexual assault in the first degree. The court granted the state's request to amend the information pursuant to State v. March , 39 Conn.App. 267, 664 A.2d 1157, cert. denied, 235 Conn. 930, 667 A.2d 801 (1995).

Over the defendant's objection, the court admitted into evidence as a prior consistent statement the video of the interview for the limited purpose of assisting the jury in evaluating N.A.'s credibility. In addition, during his closing argument, the prosecutor explained to the jury the concept of "beyond a reasonable doubt" by using a puzzle analogy. Defense counsel objected, but the court ruled that the prosecutor's use of the analogy was proper.

The jury found the defendant not guilty of sexual assault in the first degree but guilty of attempt to commit sexual assault in the first degree and risk of injury to a child. The court sentenced the defendant to a total effective sentence of sixteen years imprisonment followed by twenty years of special parole. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court abused its discretion when it admitted the interview into evidence as a prior consistent statement. We disagree.

The following additional facts are relevant to this claim. On direct examination, N.A. testified that the defendant "tried to put his penis in [her] butt." She testified that she was wearing a black tank top the night of the assault. She also testified that before the assault, the defendant asked her if she was a virgin, and she replied yes. She testified that she did not remember exactly which day of the week the assault happened, but she did remember that it happened on a weekend and that she told K.D. about the assault one or two days after it had happened. She said that on the day that she spoke with K.D., N.A. did not tell T.M. about the assault, but K.D. told T.M. on the same day. N.A. identified a DVD as the video of the interview, but the state did not introduce the video or the transcript of the interview into evidence during its direct examination of N.A.

The defendant's cross-examination of N.A. began with a series of questions relating to discussions she had with T.M. and the prosecutor. Specifically, defense counsel asked N.A. whether she had spoken with them prior to trial about her testimony or about the case. He elicited testimony that N.A. spoke with T.M. and the prosecutor a few days before the trial started, even though she denied discussing her testimony.¹ Over the course of two days, using the transcript of the interview, the defendant sought to impeach N.A.'s credibility by highlighting apparent inconsistencies between her trial testimony and the statements she had made to Vitalauno during the interview. The defendant attempted to show that the following statements were inconsistent: on which day the assault occurred, what she was wearing the night of the assault, whether she told the defendant that she was a virgin, whether the defendant performed anal intercourse, the number of times the defendant performed anal intercourse, whether she told K.D.'s boyfriend about the assault, and whether she told T.M. about the assault on the same day she told K.D. about it.

At the end of the defendant's cross-examination of N.A., outside the presence of the jury, the state requested that the court admit the video of the interview into evidence as a prior consistent statement. It argued that the interview was admissible because the defendant's questions suggested to the jury that N.A.'s testimony was influenced by the prosecutor and T.M. It also argued that because the defendant questioned N.A. about apparent inconsistencies between her trial testimony and statements she made during the interview, the entire interview was admissible in order to assist the jury in assessing whether her statements were inconsistent. The defendant argued that the interview was hearsay and did not qualify as a prior consistent statement because the defendant attempted to impeach N.A. only on the portions of the interview that were actually inconsistent with her trial testimony. He argued that the state was trying to put the interview in evidence to bolster N.A.'s testimony. The court stated that it would rule on the state's request after it had reviewed the transcript and the video of N.A.'s interview.

After a recess, the court ruled that the interview was hearsay, but it was, nevertheless, admissible because it was being admitted solely "to assist the jury in allowing them to evaluate [N.A.'s] testimony ... in court and her credibility." It reasoned that the defendant's cross-examination of N.A. left "the jury with the impression that she had given prior inconsistent statements" about, inter alia, "what she told the interviewer in terms of who told her mother, what she told her mother, who told her sister's boyfriend, the clothing she was wearing and other questions challenging her credibility ...." The court noted that it was particularly concerned that the defendant's cross-examination left the jury with the impression "that during [the] interview she claimed that the defendant engaged in anal intercourse with her on more than one occasion during this incident and that is wrong. " (Emphasis added.) In addition, the court stated that the defendant challenged N.A.'s credibility when he "tried to raise the notion that she met with [the prosecutor] several times, that she met with him with her mother present and that somehow perhaps her story ha[d] changed or been coached."

Before the video was played for the jury, the court instructed the jury that the interview was not being admitted to prove the truth of the matter asserted but that it was only "being admitted to allow [the jury] to evaluate her testimony ... in court and whether it was consistent or inconsistent with what she said previously during that interview."² During the interview, N.A. said that "[h]e stuck his thing in [her butt]" when asked what the defendant did to her body. Later in the interview, she indicated again that the defendant anally penetrated her by pointing to an anatomical picture provided by Vitalauno. She told Vitalauno that she was wearing a red and white shirt the night of the assault and that when the defendant took her clothes off, she told him to...