Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Henry D.

Court of Appeals of Connecticut

May 16, 2017

STATE OF CONNECTICUT
v.
HENRY D.[*]

          Argued January 5, 2017

         Appeal from Superior Court, judicial district of Fairfield at Bridgeport, Kahn, J.

          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.

          OPINION

          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 stop. When asked when she was assaulted, N.A. stated that she thought that ‘‘it was [a] Saturday'' because she ‘‘looked at the calendar.'' She also stated that she told both T.M. and K.D.'s boyfriend about the assault.[3]

         On appeal, the defendant argues that the court abused its discretion in admitting the video of the interview into evidence because the interview did not qualify as a prior consistent statement, in that ‘‘N.A.'s remarks during the forensic interview [were] inconsistent with her impeached trial testimony and do nothing to rehabilitate her credibility.'' To the extent that the statements were consistent, he argues that the video was not admissible because N.A.'s responses to the defendant's line of questioning about her meetings with the prosecutor ‘‘clearly demonstrate [that] N.A. was not coached or subjected to undue influence.''[4] He also argues that the portions of the interview that were consistent with N.A.'s trial testimony should not have been admitted because he did not attempt to impeach her on those statements and, thus, admitting the entire interview into evidence only served to bolster N.A.'s credibility. The state argues that the interview was a prior consistent statement because the statements N.A. made during the interview and her trial testimony were ‘‘substantially similar'' and that any ambiguities are a factual determination for the jury to resolve. It further argues that the interview tended to refute the defendant's suggestion that N.A. was coached by the prosecutor or T.M. Finally, the state contends that the entire interview was properly admitted because ‘‘without [N.A.'s] statements in context, the jury would have been left with a distorted view of reality, and the mistaken impression'' that she gave inconsistent statements. We agree with the state.

         ‘‘[T]he trial court has broad discretion in ruling on the admissibility . . . of evidence. . . . The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion. . . . We will make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. . . . This deferential standard is applicable to evidentiary questions involving hearsay, generally . . . and to questions relating to prior consistent statements, specifically.'' (Internal quotation marks omitted.) State v. Efrain M., 95 Conn.App. 590, 596-97, 899 A.2d 50, cert. denied, 279 Conn. 909, 902 A.2d 1069 (2006).

         As a threshold matter, we disagree that the interview should not have been admitted because the statements N.A. made during the interview that the defendant used to impeach her testimony did not qualify as prior consistent statements. Many of the defendant's claimed inconsistencies between N.A.'s trial testimony and the statements she made during the interview were either substantially consistent with one another or susceptible to more than one interpretation. The fact that certain statements made during the interview were inconsistent with her trial testimony does not render the entire interview inadmissible as a prior consistent statement. See State v. Velez, 17 Conn.App. 186, 189, 551 A.2d 421 (1988) (‘‘neither the Supreme Court nor this court has required as a condition of its admissibility that there be no inconsistencies between the victim's testimony and that of the constancy of accusation witness[es]'' [emphasis added]), cert. denied, 210 Conn. 810, 556 A.2d 610, cert. denied, 491 U.S. 906, 109 S.Ct. 3190, 105 L.Ed.2d 698 (1989); see also State v. Carolina, 143 Conn.App. 438, 450, 69 A.3d 341 (prior consistent statement when victim's testimony was ‘‘substantially . . . consistent'' with statements made during interview), cert. denied, 310 Conn. 904, 75 A.3d 31 (2013). Thus, the interview qualified as a prior consistent statement.

         ‘‘Although the general rule is that prior consistent statements of a witness are inadmissible, we have recognized exceptions in certain circumstances.'' State v.Lewis, 67 Conn.App. 643, 651, 789 A.2d 519, cert. denied, 261 Conn. 938, 808 A.2d 1133 (2002). ‘‘Section 6-11 (b) of the Connecticut Code of Evidence sets forth three limited situations in which the prior consistent statement of a witness is admissible: If the credibility of a witness is impeached by (1) a prior inconsistent statement of the witness, (2) a suggestion of bias, interest or improper motive that was not present at the time the witness made the prior consistent statement, or (3) a suggestion of recent contrivance . . . .'' (Internal quotation marks omitted.) Daley v.McClintock, 267 Conn. 399, 403-404, 838 A.2d 972 (2004). Our appellate courts have held that a suggestion that a witness' testimony was unduly influenced or coached by outside influences is grounds to allow a prior consistent statement into evidence. See id., 412 (witness' deposition testimony admissible to rebut plaintiff's suggestion that witness contrived testimony after talking with defendant's attorney prior to testifying); State v.Vines, 71 Conn.App. 359, 371, 801 A.2d 918 (prior consistent statement admissible because evidence supported conclusion that witness subjected to undue influences on several occasions before testifying, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.