State v. James K.

347 Conn. 648

299 A.3d 243

STATE of Connecticut v. JAMES K. ^*

SC 20693

Supreme Court of Connecticut.

Argued March 23, 2023

Officially Released August 29, 2023

Pamela S. Nagy, supervisory assistant public defender, for the appellant (defendant).

Melissa E. Patterson, senior assistant state's attorney, with whom were Sarah Hanna, former senior assistant state's attorney, and, on the brief, John P. Doyle, state's attorney, Maxine Wilensky, former senior assistant state's attorney, and Karen Roberg, supervisory assistant state's attorney, for the appellee (state).

Robinson, C. J., and McDonald, D'Auria, Mullins, Ecker and Alexander, Js.

MULLINS, J.

The defendant, James K., appeals from the judgment of the Appellate Court, affirming the judgment of conviction, rendered following a jury trial, of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). ¹ On appeal to this court, the defendant asserts that the Appellate Court incorrectly concluded that the trial court did not (1) improperly limit defense counsel's questions to potential jurors and that this limitation did not result in harmful prejudice, and (2) improperly admit into evidence a video recording of the forensic interview of the victim regarding the crimes at issue. We disagree and conclude that, even if the trial court improperly limited defense counsel's questions to potential jurors, any error did not result in harmful prejudice, and that the trial court did not abuse its discretion by admitting the video recording of the forensic interview into evidence. Accordingly, we affirm the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following facts, which the jury reasonably could have found. "The defendant is the victim's biological father. In 2010, when the victim was approximately six years old, the defendant obtained full physical custody of the victim as a consequence of drug abuse and mental health issues affecting the victim's biological mother. Initially, the victim resided with the defendant; her stepmother, M; her half sister, H; and other relatives. The victim and H are close in age, shared a close bond, and attended the same school. Later, the defendant, M, H, and the victim moved to a different residence.

"On numerous occasions, the defendant used physical force to discipline the victim and H. The defendant often struck the victim on her buttocks, back, and arms with his bare hands or physical objects such as a belt or an extension cord. Occasionally, if the use of force resulted in visible injuries to the victim, the defendant would make the victim conceal her bruises with clothing, or he would keep her home from school.

"One night in 2011 or 2012, when the victim was seven or eight years of age, the defendant verbally and physically assaulted M in the victim's presence, following which M and H left the residence. The victim, preparing to take a shower, went into her bedroom, undressed, and wrapped herself in a towel. The defendant entered the bedroom and told the victim that he had received a telephone call from her teacher and was upset to have learned that the victim had misbehaved in class. After the victim and the defendant discussed this matter, the defendant instructed the victim to remove her towel and bend over a nearby bed. The victim, expecting to be struck by the defendant as a form of discipline, complied with the defendant's instruction.

"The victim positioned herself on all fours on the bed. As the defendant stood behind her, at the edge of the bed, he touched the victim's anus and her vagina with his penis. Penetration did not occur. ² As the incident progressed, the defendant pushed the victim down so that her head and chest were on the bed. When the victim told the defendant to stop touching her, he responded by telling her to be quiet. Despite the fact that the defendant's hands were on the victim's waist, he stated that he was using ‘his thumb.’ After a few minutes, the defendant stopped what he was doing, told the victim to remain bent over until he left her bedroom, and walked into another room. The victim was confused by the defendant's conduct and knew that it was ‘bad ....’ She proceeded to use the shower. After the victim showered, the defendant told her that they were going out to get pizza for dinner, and he stated that ‘what happened in the house stays in the house.’ The victim understood this to mean that the defendant did not want her to discuss what he had done to her in the bedroom, and she believed that, if she told anyone about it, it would either happen again or the defendant would punish her by beating her.

"The defendant and M later separated, and the victim thereafter resided with the defendant and his new girlfriend. The victim resided there until December, 2015, when the defendant was arrested on charges unrelated to the present case. The victim was placed in the custody of her maternal grandmother, B. Thereafter, the Department of Children and Families (department) investigated allegations that the victim had suffered physical abuse caused by the defendant. The department also investigated concerns expressed by B that the defendant had acted inappropriately toward the victim because he had a habit of kissing the victim on the lips. Ultimately, the victim disclosed to a department social worker that the defendant had done something that made her uncomfortable and that he ‘tried to say it was his finger ....’ During a forensic interview at Yale New Haven Hospital's child sexual abuse clinic in 2016, the victim provided details of the incident involving the defendant's contact with her intimate parts in her bedroom." (Footnote in original.) State v. James K. , 209 Conn. App. 441, 444–47, 267 A.3d 858 (2021).

On appeal, the Appellate Court affirmed the judgment of conviction. Id., at 482, 267 A.3d 858. The Appellate Court concluded that the trial court had not abused its discretion by restricting defense counsel's examination of prospective jurors during voir dire and that the defendant had failed to demonstrate that the trial court's ruling resulted in harmful prejudice. See id., at 447–59, 267 A.3d 858. The Appellate Court also concluded that the trial court had not abused its discretion in admitting the video recording of the victim's forensic interview into evidence. See id., at 459–73, 267 A.3d 858.

Thereafter, the defendant filed a petition for certification to appeal to this court, which we granted, limited to the following issues: (1) "Did the trial court improperly preclude defense counsel from asking prospective jurors to express their opinions about the practice of a parent kissing his or her child on the lips, and, if the answer to that question is ‘yes’ and the error is subject to harmless error review, was that error harmful?" And (2) "[d]id the trial court err in not excluding a video-recorded forensic interview with the [victim] when the [victim] gave clear and cogent testimony at trial and the prejudicial effect of the video-recorded interview greatly outweighed its marginal probative value?" State v. James K. , 342 Conn. 904, 270 A.3d 692 (2022). ³

I

Both in this court and in the Appellate Court, the state identified an inconsistency in our case law regarding when the trial court's exercise of discretion in restricting voir dire will result in reversible error. Therefore, before addressing the defendant's claim related to the improper limitation on voir dire questioning, to adequately address whether reversal is required, we take this opportunity to clarify the appropriate standard for evaluating such claims.

It is well established and undisputed that "[t]he [trial] court has wide discretion in conducting the voir dire ...." (Citations omitted.) State v. Dahlgren , 200 Conn. 586, 601, 512 A.2d 906 (1986). At times, this court has stated that a party must prove both an abuse of discretion and harmful prejudice resulting therefrom to demonstrate reversible error. See, e.g., State v. Edwards , 201 Conn. 125, 159, 513 A.2d 669 (1986) (explaining that "[t]he extent to which parties may go in [the examination of prospective jurors during voir dire] rests largely in the discretion of the [trial] court, and the exercise of that discretion will not constitute reversible error unless the discretion has been clearly abused and one of the parties has been prejudiced thereby" (emphasis added; internal quotation marks omitted)).

However, at other times, this court and the Appellate Court have stated that "the exercise of that discretion will not constitute reversible error unless it has clearly been abused or harmful prejudice appears to have resulted." (Emphasis added; internal quotation marks omitted.) State v. Skipper , 228 Conn. 610, 625, 637 A.2d 1101 (1994) ; accord State v. Mota -Royaceli , 186 Conn. App. 735, 739, 200 A.3d 1187 (2018), cert. denied, 330 Conn. 960, 199 A.3d 20 (2019). Thus, we have been less than clear about whether the test to determine reversible error due to a restriction on voir dire is conjunctive or disjunctive.

Tracing this issue back to its origins reveals that the standard initially had required both a clear abuse of discretion and harmful prejudice. More than one century ago, in State v. Lee , 69 Conn. 186, 37 A. 75 (1897), this court held that a defendant is "not entitled, as a matter of strict right, to have the [prospective] jurors sworn as requested," which is "a matter [that] is left largely to the discretion of the trial court." Id., at 194–95, 37 A. 75. In Lee , this court concluded that, in that case, the trial court's "discretion appear[ed] to have been properly exercised, and the record fail[ed] to show how the defendant was in any way harmed by the refusal of which he complains." Id., at 195, 37 A. 75. We later maintained in Sherman v. William M. Ryan & Sons, Inc. , 126 Conn. 574, 13 A.2d 134 (1940), that "[t]he extent to which parties should be allowed to go in examining [prospec...