State v. Williams

200 Conn.App. 427

238 A.3d 797

STATE of Connecticut

v.Ricardo K. WILLIAMS

AC 43226

Appellate Court of Connecticut.

Submitted on briefs April 6, 2020

Officially released September 29, 2020

Alice Osedach, assistant public defender, for the appellant (defendant).

Samantha L. Oden, deputy assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, Mary A. Sanangelo, senior assistant state's attorney, and Maxine Wilensky, senior assistant state's attorney, for the appellee (state).

DiPentima, C.J., and Lavine and Bright, Js.^*

DiPENTIMA, C.J.

The defendant, Ricardo K. Williams, appeals from the judgment 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), one count of sexual assault in the fourth degree in violation of General Statutes (Rev. to 2013) § 53a-73a (a) (1) (A) and one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (1). On appeal, the defendant claims that (1) he was deprived of the right to a fair trial as a result of prosecutorial impropriety and (2) the evidence was insufficient to support the mandatory minimum sentence imposed by the court under § 53a-70 (b) (2). We are not persuaded and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 2012, the victim¹ lived on the second floor of a multifamily apartment with her mother and her siblings. The defendant was in a relationship with the victim's mother at the time and often would spend the night at the apartment.

In the autumn of 2012, when the victim was nine years old, she was sleeping on the couch in the living room of the apartment. She awoke to the defendant hovering over her. The defendant picked her up, carried her into her bedroom, laid her on her back on the bed and, after putting on a condom, sexually assaulted her by vaginal intercourse, causing her to bleed and to experience pain.

A second incident occurred sometime that winter, after the victim and her family had moved to a new apartment. On that night, the victim and her younger brother had fallen asleep on the floor of their playroom. She awoke to the defendant tapping her and telling her to come into the adjoining living room. The defendant laid her on the floor, removed her underwear and sexually assaulted her, also by vaginal intercourse.

A third incident occurred on December 14, 2013. That morning, the victim was lying on the bed in her sibling's bedroom. The defendant, who had been making breakfast, entered the room, got onto the bed with the victim and kissed the victim's mouth and neck, as well as her chest, breasts, stomach, vagina and inner thighs above the clothes. The assault ended when the victim's mother called for the defendant. On June 18, 2015, the victim met with Brian Schweinsburg, a clinical psychologist specializing in neuropsychology, in New Haven. Her mother had arranged the appointment due to her concerns about the victim's increased levels of depression and recent suicide attempts. Schweinsburg conducted an assessment interview with the victim, who revealed that the defendant had "raped" her on multiple occasions. Following the interview, Schweinsburg arranged for an ambulance to transport the victim to the hospital for further psychiatric evaluation. Schweinsburg also made oral and written reports to the Department of Children and Families (department) regarding the victim's disclosure of the sexual assaults.

The victim was discharged from the hospital the following morning and returned to her mother's apartment. That day, a department investigator made an unannounced visit to the home, but was denied access by the victim's mother. On July 8, 2015, the victim was brought to Yale New Haven Hospital for a forensic interview regarding her disclosures of sexual assault by the defendant. Following the interview, Lisa Pavlovic, a physician at the Yale Child Abuse Clinic, conducted a medical examination of the victim. The examination revealed that the victim had suffered a penetrating injury to her vagina.

Thereafter, on July 29, 2015, Kristine Cuddy, a detective with the New Haven Police Department, interviewed the defendant concerning the victim's allegations. In October, 2015, the defendant was arrested and, in a 2017 long form information, was charged in counts one and two with sexual assault in the first degree, in count three with sexual assault in the fourth degree and in count four with risk of injury to a child. The case proceeded to a trial by jury on that information. On January 11, 2018, the jury found the defendant guilty of all counts. The jury, in response to a written interrogatory, specifically found that the victim was under ten years of age at the time of the sexual assault alleged in the first count of the long form information.

Following the verdict, the defendant filed a motion for new trial nunc pro tunc, claiming prosecutorial impropriety. The court denied the motion and thereafter sentenced the defendant on count one to ten years of incarceration in accordance with the statutory minimum under § 53a-70 (b) (2),² followed by five years of special parole, on count two to ten years of incarceration, five years mandatory, followed by five years of special parole, on count three to two years and one day of incarceration followed by two years of special parole, all to be served consecutively, and on count four to ten years of incarceration to be served concurrently to all of the other counts, for a total effective term of twenty-two years and one day of incarceration, fifteen years of which are mandatory, followed by twelve years of special parole. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that he was deprived of the right to a fair trial as a result of prosecutorial impropriety. Specifically, he argues that the prosecutor's impropriety during direct examination and closing arguments deprived him of his due process right to a fair trial. The defendant contends that the prosecutor acted improperly in three ways: (1) by referring to the complainant as the "victim," (2) by expressing her opinion concerning the credibility of the victim in closing argument and (3) by eliciting comments on the credibility of the victim from the state's witnesses. In the alternative, he argues that this court should exercise its supervisory powers to reverse his conviction because of "the flagrant prosecutorial improprieties in this case." We disagree with the first argument and decline the invitation to consider the alternative argument.

The record reveals that the defendant did not specifically object to all of the alleged instances of impropriety that he now claims. This failure does not preclude our review. It is well settled that "a defendant who fails to preserve claims of prosecutorial [impropriety] need not seek to prevail under the specific requirements of State v. Golding , 213 Conn. 233, 239–40, 567 A.2d 823 (1989) [as modified by In re Yasiel R ., 317 Conn. 773, 781, 120 A.3d 1188 (2015) ], and, similarly, it is unnecessary for a reviewing court to apply the four-pronged Golding test. ... The reason for this is that the defendant in a claim of prosecutorial [impropriety] must establish that the prosecutorial [impropriety] was so serious as to amount to a denial of due process ...." (Citation omitted; internal quotation marks omitted.) State v. Warholic , 278 Conn. 354, 360, 897 A.2d 569, 578 (2006) ; accord State v. Payne, 303 Conn. 538, 560, 34 A.3d 370, 386 (2012).

Accordingly, we undertake our review of these claims with a two step analysis. It is well established that "[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. ... [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. Taft , 306 Conn. 749, 761–62, 51 A.3d 988 (2012).

"If we conclude that prosecutorial impropriety occurred, we then decide whether the defendant was deprived of his due process right to a fair trial by considering [the factors set forth in State v. Williams , 204 Conn. 523, 540, 529 A.2d 653 (1987) ] [1] the extent to which the [impropriety] was invited by defense conduct or argument ... [2] the severity of the [impropriety] ... [3] the frequency of the [impropriety] ... [4] the centrality of the [impropriety] to the critical issues in the case ... [5] the strength of the curative measures adopted ... and [6] the strength of the state's case. ... As is evident upon review of these factors, it is not the prosecutor's conduct alone that guides our inquiry, but, rather, the fairness of the trial as a whole." (Citation omitted; internal quotation marks omitted.) State v. Albert D., 196 Conn. App. 155, 162–63, 229 A.3d 1176, cert. denied, 335 Conn. 913, 229 A.3d 118 (2020). With those principles in mind we address each of the defendant's claims of impropriety in turn.

A

The defendant first claims that the prosecutor acted improperly by referring to the complainant as the "victim" during closing argument.³ Specifically, the defendant directs us to the following four statements. First, the prosecutor stated: "There is a stipulation in this case about the ages and the dates of birth, so you don't have to say oh, how old was the defendant or how old was the victim you have their dates of birth." Second, the following exchange occurred:

"[The Prosecutor]: The victim testified a week ago, a little over a week ago—

"[Defense Counsel]: Objection as to...