Argued
February 13, 2018
Procedural
History
Substitute
information charging the defendant with the crimes of risk of
injury to a child, assault in the third degree and reckless
endangerment in the first degree, brought to the Superior
Court in the judicial district of Fairfield, geographical
area number two, and tried to the jury before Kahn, J.;
verdict and judgment of guilty of risk of injury to a child
and assault in the third degree, from which the defendant
appealed to this court. Affirmed.
James
P. Sexton, assigned counsel, with whom were Megan L. Wade,
assigned counsel, and, on the brief, Marina L. Green,
assigned counsel, Michael S. Taylor, assigned counsel,
Matthew C. Eagen, assigned counsel, and Emily Graner Sexton,
assigned counsel, for the appellant (defendant).
Kathryn W. Bare, assistant state's attorney, with whom,
on the brief, were John C. Smriga, state's attorney, and
Margaret E. Kelley, supervisory assistant state's
attorney, for the appellee (state).
Sheldon, Keller and Elgo, Js.
OPINION
SHELDON, J.
The
defendant, Morice W., appeals from the judgment of
conviction, rendered against him after a jury trial, on
charges of risk of injury to a child in violation of General
Statutes § 53-21 (a) (1)[1] and assault in the third degree
in violation of General Statutes § 53a-61 (a)
(2).[2]
On appeal, the defendant claims that he was deprived of a
fair trial on those charges due to improper remarks by the
prosecutor in her rebuttal closing argument. Although we
agree that one of the prosecutor's challenged remarks was
improper, we do not conclude that that remark deprived the
defendant of a fair trial. We therefore affirm the judgment
of the trial court.
The
jury reasonably could have found the following facts. On the
morning of December 14, 2012, the defendant's mother took
the victim, the defendant's four and one-half month old
daughter, to her house. The defendant's mother
customarily watched the victim while the defendant and the
victim's mother were at work. While she was changing the
victim's diaper, the defendant's mother noticed that
the victim's leg was swollen and appeared to be causing
her pain. She thus called the defendant at work to inform him
of what she had observed, to which he responded that he would
‘‘get [the victim's] leg checked out . . .
.''
The
defendant's mother returned the victim to the
defendant's and the victim's mother's home
sometime after 4 p.m. Thereafter, at approximately 6 p.m.
that evening, the defendant and the victim's mother took
the victim to Pediatric Healthcare Associates, where she was
seen by Dr. Richard Freedman. Freedman noticed that the
victim's right thigh was ‘‘noticeably
swollen, '' four centimeters larger in circumference
than her left thigh, and that it was very firm to the touch.
He thus instructed the defendant and the victim's mother
to take her for an X-ray the next morning, which they did.
Dr.
Mark Rosovsky, who examined the X-ray, found that the victim
had fractures of her right femur and her left femur, both
around the knee. Because of the types and the locations of
these fractures, Rosovsky believed that they were
nonaccidental in origin, thus causing him to suspect child
abuse. Accordingly, Rosovsky recommended that the victim
undergo a full body X-ray to detect and document other
fractures she might have suffered. The victim's mother
thus took her to the Bridgeport Hospital emergency
department, where Dr. Justin Cahill examined her. Upon
reviewing the victim's X-ray records, Cahill determined
that the fracture of her right femur was not of a common type
and could not be explained by any known injury. He therefore
reported the fracture to the Department of Children and
Families (department). The victim was then transferred to
Yale-New Haven Hospital for a full body X-ray because the
pediatric floor at Bridgeport Hospital was full.
On
December 16, 2012, shortly after midnight, Officer Paul Cari
of the Bridgeport Police Department was dispatched to the
emergency department of Yale-New Haven Hospital to respond to
a call about a ‘‘child incident . . . .''
When he arrived, he found department social worker Sandra
Liquindoli interviewing the victim's mother in the
victim's hospital room. Cari and Liquindoli were
approached by members of the hospital medical staff, who took
them outside of the room after the full body X-ray was taken
and informed them that the victim had
‘‘approximately'' six different fractures
in various stages of healing. Liquindoli thus conferred with
her supervisor and program manager, who decided to take the
victim into custody for her safety by placing her under a
ninety-six hour hold. See General Statutes § 17a-101g.
Cari
and Liquindoli returned to the victim's room with medical
staff and hospital security, and the victim was separated
from her mother. The victim's mother was ending a cell
phone call as they entered, and she informed them that she
had been speaking with the defendant. Cari and Liquindoli
asked the victim's mother how the victim had sustained
her present injuries. She stated that during her conversation
with the defendant, he told her that the victim's
injuries were his fault, [3] but she would not respond to their
requests for more information on what she meant by that
statement. The victim's mother stated that she did not
know how the victim had been injured, but she suggested that
the injuries could be related to a shot the victim had
received, or that they might have occurred when the victim
fell from or lunged out of her car seat a week and one-half
to two weeks earlier. The victim's mother stated that the
victim had fallen in this way on two occasions, both times
when her car seat was on a carpeted floor.
After
interviewing the victim's mother, Cari and Liquindoli
drove to Bridgeport Hospital, where the defendant was working
that evening, to interview him. When they initially
questioned him about the cause of the victim's injuries,
he stated that he had no idea how she had been injured.
Thereafter, however, when they informed him that the hospital
had found that the victim had several different fractures,
his story began to change. First, he told the investigators
that he thought that the swelling of the victim's thigh
had been caused by vaccinations she had been given on
November 21, 2012. Then he told them that there had been
‘‘a few times'' when he had rolled over
on the victim while they were sleeping together in the same
bed. After making that statement, the defendant expressly
admitted that he had caused the victim's injuries, and
stated that he ‘‘should just go to jail . . .
.'' The defendant was not arrested that evening,
however.
On the
evening of the following day, December 17, 2012, department
investigative social worker Miguel Teixeira met with the
defendant and the victim's mother. In that meeting, when
Teixeira asked them once again how the victim had been
injured, they told him of a time in October, 2012, after the
victim had become very congested and stopped breathing, when
the defendant had performed cardiopulmonary resuscitation on
her. They also suggested that the victim might have been
injured when she underwent a lumbar puncture, [4] when she fell out
of a car seat, or when the defendant rolled over on her in
bed.
Several
months later, while the victim was still in the
department's custody, the department contracted with
counselor Gary Vertula and social worker Cindy Perjon to
perform an assessment ‘‘regarding
reunification''[5] of the defendant and the victim's
mother with the victim. In the course of that assessment,
which was performed in late April and early May, 2013, the
defendant and the victim's mother suggested once again
that the victim might have suffered her injuries when she
underwent a lumbar puncture on August 24, 2012.
Dr.
John Leventhal, a pediatrician who works at Yale Medical
School and serves as the director of the child abuse program
at Yale-New Haven Children's Hospital, was later called
in to determine if the victim's fractures had resulted
from acts of abuse. Leventhal first confirmed, upon reviewing
the victim's full body X-rays from Yale-New Haven
Hospital, that the victim had six fractures: one of each of
her upper arms, near the shoulder; one of each of her femurs,
near the knee; and two of her ribs, both under her left
arm.[6]
Leventhal concluded that the two rib fractures, which were a
couple of weeks old at the time the X-rays were taken, had
most likely been caused by acts of abuse, particularly the
squeezing of the victim's chest from front to back. The
fractures of the victim's arms and legs were all of a
type known as ‘‘corner'' or
‘‘bucket handle'' fractures because of
their distinctive appearance. Such fractures, which are
caused by the forceful jerking of the limbs, are uncommon in
children. They are believed to link very strongly with a
diagnosis of child abuse. In Leventhal's opinion, none of
the victim's limb or rib fractures could have been caused
by falling from a car seat onto a carpeted floor or being
rolled over on by an adult while in bed. Nor, in his opinion,
could any such injury have been caused by a lumbar puncture.
Finally, Leventhal ordered that tests be conducted on the
victim to evaluate the structural integrity of her bones,
more particularly by determining if she had
rick-ets[7] or a genetic condition commonly known as
brittle bone disease, [8] either of which might have made her prone
to suffering bone fractures without abuse. The tests revealed
that there was nothing wrong with the victim's bones that
would have made her susceptible to sustaining fractures
without abuse. On the basis of his knowledge and experience,
Leventhal determined that all six of the victim's
fractures had resulted from acts of abuse.
Dr.
Amanda Rodriguez-Murphy, the pediatrician who had
administered vaccines to the victim on November 21, 2012,
testified that, according to her medical records, the victim
had suffered from subconjunctival hemorrhages, or visible
blood under the whites of her eyes, when she was
approximately one month old. Leventhal testified that
subconjunctival hemorrhages are
‘‘sentinel[s]'' for child abuse.
The
defendant was arrested on May 7, 2013, under a warrant
charging him with risk of injury to a child, assault in the
third degree and reckless endangerment in the first degree.
The victim's mother was arrested on that ...