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State v. Morice W.

Court of Appeals of Connecticut

June 26, 2018


          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.


          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 ...

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