January 5, 2017
from Superior Court, judicial district of Fairfield at
Bridgeport, Kahn, J.
Raymond L. Durelli, assigned counsel, for the appellant
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.
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.
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.
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.
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.
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,
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).
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
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.
defendant first claims that the court abused its discretion
when it admitted the interview into evidence as a prior
consistent statement. We disagree.
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.
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. 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.
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
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
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.'' 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
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.'' 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.
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).
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.
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, ...