author: WEST, J.

text:
    STATE OF CONNECTICUT v. WILLIAM B.

    (AC 21592)
    Schaller, Bishop and West, Js.

      Argued December 11, 2002
    officially released May 20, 2003

      Kent Drager, senior assistant public defender, with whom, on the brief, were Al Cali and Domenic Costello, certified legal interns, for the appellant (defendant).

      Denise B. Smoker, assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Brian Preleski, assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to identify the victims or others through whom their identities may be ascertained. See General Statutes § 54-86e.

   Opinion

WEST, J.

The defendant, William B., 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 second degree in violation of General Statutes § 53a-71 (a) (1) and two counts of risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant claims that the trial court improperly (1) admitted the testimony of two licensed marriage and family therapists pursuant to the medical diagnosis and treatment exception to the hearsay rule, (2) refused to admit into evidence correspondence to the defendant from the victim’s half-sister, (3) denied defense counsel’s motion to withdraw, (4) denied the defendant’s motion to recuse, (5) denied his motion for a judgment of acquittal on counts two, three and five of the information, and (6) denied him access to the victim’s Juvenile Court records concerning neglect proceedings. He also claims (7) that the state violated his constitutional right against double jeopardy. We reverse the defendant’s conviction of sexual assault in the second degree and affirm the judgment of the trial court in all other respects.

The jury reasonably could have found the following facts. The defendant is the victim’s father. From the time she was bom in 1982 until 1993, the victim lived with the defendant, her mother and her half-sister in the town of B. In 1993, when her parents separated, the victim resided with the defendant in the town of S until she was removed from his care in late 1994 or early 1995. Prior to the separation, the victim’s half-sister saw the defendant perform cunnilingus on the victim and witnessed the victim perform fellatio on the defendant. Those acts occurred two or three times a week when the victim’s mother was not at home. The victim was not a willing participant in that sexual activity, and the defendant gave her money, candy or cigarettes so that she would not tell anyone.

Subsequent to the defendant’s divorce from his wife, a male acquaintance of the defendant visited him and the victim in their home in the town of S. He participated in a game invented by the defendant called “naked hide- and-seek.” The defendant’s game was played by turning out the lights and hiding. The person who was found had to remove an article of clothing. The game ended when everyone was naked. The defendant encouraged his acquaintance to touch the victim sexually. According to the acquaintance, he subsequently was convicted of sexual assault in the first degree for acts he perpetrated on the victim when he was with the defendant and the victim.

During the time the victim was living with the defendant in the town of S, the victim’s school friends visited their home every day. In 1994, one of the school friends observed the defendant make frequent sexual gestures and comments to the victim. She saw the defendant gesture with his tongue as if performing oral sex and saw him touch the victim’s buttocks. She was present when the defendant dared the victim to remove her shirt in front of him, which the victim did. On one occasion, the defendant pretended to go into the shower, but instead jumped naked in front of the school friend, the victim and another girl. Sometime in late 1994, the victim’s school friend told her mother, and then the police, what she had observed. The police conducted an investigation as a result of the school friend’s report. Shortly after the school friend made her report, the victim was removed from the defendant’s care by agents of the department of children and families, who instituted neglect proceedings against the defendant.

In May, 1998, agents of the department of children and families referred the victim to the Children’s Home of Cromwell (home), a residential treatment center for children who have encountered severe emotional abuse and are in need of therapy. The victim was placed in the home as a result of her self-injurious behavior, suicidal ideation, aggressiveness, obsession with death and dying, and attempted suicide. During the course of her treatment at the home, the victim revealed to her therapists that the defendant had sexually abused her.

In April, 1999, Michael Shanley, a police detective, interviewed the defendant about the victim’s allegations of sexual abuse. In response to questions as to whether he had had sexual relations with his daughter, the defendant responded, “I don’t remember.” The defendant was arrested soon thereafter and charged with the crimes of which he has been convicted.

The defendant was tried pursuant to a substitute long form information dated September 18, 2000. The five counts of the information alleged in part as follows: In count one, that at the town of B on divers dates between 1990 and 1994, as a continuing course of conduct, the defendant engaged in sexual intercourse with the victim, who was younger than thirteen, in violation of § 53a-70 (a) (2); in count two, that at the town of S on divers dates between 1994 and September 4, 1995, as a continuing course of conduct, the defendant engaged in sexual intercourse with the victim, who was younger than thirteen, in violation of § 53a-70 (a) (2); in count three, that at the town of S on divers dates between September 5, 1995, and 1996, as a continuing course of conduct, the defendant engaged in sexual intercourse with the victim, who was thirteen years of age or older but younger than sixteen years of age, in violation of § 53a-71 (a) (1); in count four, that at the town of B on divers dates between 1990 and 1994, as a continuing course of conduct, the defendant did an act likely to impair the health or morals of the victim, a child younger than the age of sixteen years, in violation of § 53-21; and in count five, that at the town of S on divers dates between 1994 and 1996, as a continuing course of conduct, the defendant did an act likely to impair the health or morals of the victim, a child younger than the age of sixteen years, in violation of § 53-21.

Following the jury’s verdict, the court sentenced the defendant to forty years in prison. This appeal followed.

I

The defendant’s first claim is that the court improperly admitted the testimony of two licensed marriage and family therapists under the medical treatment and diagnosis exception to the hearsay rule. We disagree.

The following facts are relevant to our resolution of the defendant’s claim. At trial, the prosecutor stated his intention to call two employees of the home, Tony Gibson and Asha Patlikh, state licensed marriage and family therapists, who treated the victim at the home. The prosecutor represented that the therapists would testify that during her course of treatment at the home, the victim disclosed the defendant’s sexual abuse. The defendant objected to the admission of their testimony, claiming that there was no indication that the victim was at the home for medical treatment or why she was being treated.

The prosecutor proffered further that the therapists would testify as to their qualifications, that they had treated the victim and that during the course of their treatment, she revealed that the defendant had sexually abused her from the time she was four until she was eleven, and described the different acts of sexual favors that he asked of her and the game “naked hide-and-seek.” Furthermore, the prosecutor proffered that the victim first made the disclosures in August, 1998, during the course of her treatment at the home and that the therapists relied on those statements to provide her with mental health care and treatment.

In addition, during the hearing on the defendant’s objection to the therapists’ being permitted to testify, Gibson testified that children who are admitted to the home have been given a psychiatric diagnosis. He also testified that the victim was being treated at the home to help her address the issues that had brought her there. The court overruled the defendant’s objection, and permitted the therapists to testify under the medical diagnosis and treatment exception to the hearsay rule. See Conn. Code Evid. § 8-3 (5).

On appeal, the defendant claims that the court improperly admitted the testimony of the therapists because (1) they are not medical professionals and were not acting in the chain of medical treatment of the victim, (2) the victim’s statements were not made for the purpose of seeking medical treatment and (3) the identity of the alleged perpetrator was not relevant to the purported treatment of the victim because she had been removed from the defendant’s home several years before she made the accusations. The defendant claims that not only did the court improperly admit the evidence, but it also denied him his constitutional right to confrontation. None of the defendant’s claims with respect to the testimony of the victim’s therapists is meritorious.

“It is well settled that [t]he trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . [Its] 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 ruling will be overturned on appeal only where there was ... a showing by the defendant of substantial prejudice or injustice. . . . [T]he defendant . . . must show that it is more probable than not that the erroneous action of the court affected the result.” (Emphasis in original; internal quotation marks omitted.) State v. Padua, 73 Conn. App. 386, 425-26, 808 A.2d 361 (2002), cert. granted on other grounds, 262 Conn. 941, 815 A.2d 672 (2003).

“It is well settled that out-of-court statements made by a patient to a physician for the purposes of obtaining medical diagnosis and treatment are admissible under the treating physician exception to the hearsay rule. See, e.g., State v. DePastino, 228 Conn. 552, 565, 638 A.2d 578 (1994). Out-of-court statements made by a patient to a physician may be admitted into evidence if the declarant was seeking medical diagnosis or treatment, and the statements are reasonably pertinent to achieving those ends. Id.” (Internal quotation marks omitted.) State v. Kelly, 256 Conn. 23, 44, 770 A.2d 908 (2001).

“[Statements concerning the cause of the injury or the identity of the person who caused the injury usually are not relevant to treatment and, therefore, are not admissible under the medical diagnosis and treatment exception to the hearsay rule.” (Internal quotation marks omitted.) Id., 45. Our Supreme Court, however, has concluded “that testimony pertaining to the identity of the defendant and the nature of sexual assault were wholly relevant and pertinent to proper diagnosis and treatment of the resulting physical and psychological injuries of sexual assault.” (Emphasis added.) Id. “In any sexual assault, the identity of the perpetrator undoubtedly is relevant to the physician to facilitate the treatment of psychological and physical injuries.” (Emphasis added; internal quotation marks omitted.) Id.; see also State v. Cruz, 260 Conn. 1, 14-15, 792 A.2d 823 (2002); State v. Martin, 38 Conn. App. 731, 740, 663 A.2d 1078 (1995) (if sexual abuser is member of child victim’s household, it is reasonable for physician to ascertain identity of abuser to facilitate treatment of psychological injuries), cert. denied, 237 Conn. 921, 676 A.2d 1376, cert. denied, 519 U.S. 1044, 117 S. Ct. 617, 136 L. Ed. 2d 541 (1996).

“The rationale for excluding from the hearsay rule statements that a patient makes to a physician in furtherance of obtaining medical treatment applies with equal force to such statements made to other individuals within the chain of medical care. In each case, we presume that such statements are inherently reliable because the patient has an incentive to tell the truth in order to obtain a proper medical diagnosis and treatment. See, e.g., 2 C. McCormick, [Evidence (5th Ed. 1999)] § 277, p. 233.” State v. Cruz, supra, 260 Conn. 10. In Cruz, our Supreme Court held “that statements made by a sexual assault victim to a social worker who is acting within the chain of medical care may be admissible under the medical treatment exception to the hearsay rule.” Id. In view of the holding in Cruz, we see no reason why statements made by a sexual assault victim to a state licensed marriage and family therapist within the chain of medical care should not also be admissible under the medical treatment exception to the hearsay rule.

In this instance, both Gibson and Patlikh testified that the victim was referred to the home for self-injurious behavior, including suicidal ideation and attempted suicide. The home specialized in treating children who had been abused, and the victim received treatment at the home. Gibson was the clinical coordinator of the treatment the victim was receiving, and he also provided treatment to the victim. Patlikh testified that members of the staff at the home work as a treatment team and that a member of the team is a psychiatrist.

Under the facts of this case, where the victim had harmed herself and was referred to the home for treatment pursuant to a psychiatric diagnosis, the treatment was administered by a team of mental health professionals that included a psychiatrist, we conclude that the victim’s therapists were within the chain of medical care and treatment. The victim’s statements to Patlikh and Gibson during the course of her treatment, therefore, fall within the medical diagnosis and treatment exception to the hearsay rule.

As to the defendant’s claim that because the victim was referred to the home by agents of the department of children and families and that she herself did not seek medical care and treatment, we note that at the time she was admitted to the home, the victim was fifteen years old and, thus, a minor. As a rule, minors may not engage medical treatment for themselves without the permission of a parent or guardian. A review of our case law demonstrates that in cases in which the statements of minor sexual assault victims to their health care providers were determined to be admissible, the children themselves did not seek out medical care, but were taken for treatment by their parent or guardian. See State v. Cruz, supra, 260 Conn. 10 (victim taken to hospital by mother for treatment); State v. DePastino, supra, 228 Conn. 555 (victim taken to hospital by grandmother); State v. Maldonado, 13 Conn. App. 368, 369, 536 A.2d 600 (victim taken to hospital by defendant), cert. denied, 207 Conn. 808, 541 A.2d 1239 (1988). We see no distinction between a parent or guardian taking a child for psychological treatment, and agents of the department of children and families referring a minor for such treatment. Furthermore, according to Patlikh, although the victim had been referred for treatment, she voluntarily accepted the treatment services of the home.

Contrary to the defendant’s argument, it is significant that agents of the department of children and families, a state agency, had referred the victim to the home, a facility specializing in the psychological care and treatment of abused children. It would appear that if the victim was not being treated for her psychological problems, there was no reason for her to be at the home. The victim was exhibiting extreme emotional and psychological distress, having gone so far as to have caused physical harm to herself. It was during the course of her treatment at the home that the victim disclosed the defendant’s sexual abuse to her therapists. It is not uncommon for patients at the home to wait to reveal important information until they had become adjusted to the new surroundings and reached a level of comfort and trust in the professionals with whom they are treating. Obviously, when the victim felt comfortable with her therapists, she revealed the defendant’s acts of sexual abuse.

With respect to the defendant’s third evidentiary claim, i.e., that the identity of the perpetrator of sexual assault on the victim was not relevant because she had been removed from the defendant’s home prior to the time she revealed his sexual assault, the case law is to the contrary. The identity of the perpetrator of sexual assault is relevant to the treatment of psychological injuries resulting from sexual assault. See State v. Cruz, supra, 260 Conn. 14-15; State v. Kelly, supra, 256 Conn. 45. “[I]n cases of sexual abuse in the home, hearsay statements made in the course of medical treatment which reveal the identity of the abuser are reasonably pertinent to treatment and are admissible.” (Internal quotation marks omitted.) State v. DePastino, supra, 228 Conn. 565.

Under the facts of this case, where a state agency referred the victim, who had a psychiatric diagnosis, to a facility specializing in the care and treatment of abused children that is administered by therapists and psychiatrists working as a team, there is no violation of the medical exception to the hearsay rule. Compare State v. Gonzalez, 75 Conn. App. 364, 376-77, 815 A.2d 1261 (2003) (statement not made for purposes of medical treatment); State v. Cruz, 56 Conn. App. 763, 770, 746 A.2d 196 (2000) (victim thought she was talking to a physician), aff'd, 260 Conn. 1, 792 A.2d 823 (2002).

We turn now to the defendant’s constitutional claim that by improperly admitting the hearsay testimony of the victim’s therapists, the court denied him the right to confrontation. Without legal analysis of the facts of this case, the defendant cites Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), for the proposition that evidence that does not fall within a firmly rooted hearsay exception is inadmissible under the confrontation clause absent a showing of particularized guarantees of trustworthiness. We think that this is an accurate statement of the law; however, we have concluded that the court properly admitted the therapists’ testimony under the medical exception to the hearsay rule. The defendant’s right to confrontation, therefore, was not denied.

In summary, the court properly admitted the testimony of the victim’s therapists.

II

The defendant claims that the court improperly limited his cross-examination of the victim’s half-sister by prohibiting him from admitting into evidence photocopies of letters she had sent to the defendant. The defendant further claims that the content of the letters evince an attitude of the half-sister toward him that is inconsistent with her testimony that she was fearful of him. We conclude that the court properly refused to admit the letters into evidence.

The following facts are relevant to the defendant’s claim. In addition to testifying about the acts of sexual abuse the defendant committed on the victim that she had observed, the victim’s half-sister also testified that the defendant was an abusive person who had struck her and the victim, and threw things in the family home. The victim and her half-sister did not tell anyone of the defendant’s abusive behavior because they were frightened of him.

During cross-examination, the defendant sought to impeach the credibility of the half-sister regarding her relationship with the defendant by introducing photocopies of letters she wrote to the defendant between 1995 and 1997. The defendant sought to demonstrate that the victim’s half-sister continued to maintain a positive and loving relationship with the defendant, an attitude that was inconsistent with her testimony that he had abused the victim and that the half-sister was afraid of him. The prosecutor objected on the ground that the content of the letters was irrelevant as to impeachment. The victim’s half-sister admitted that she had visited the defendant after her mother divorced him and that she had written letters to him a few times while she was living with her boyfriend and later her husband in New York state. The court agreed with the prosecutor.

On appeal, the defendant claims that the court restricted his cross-examination of the victim’s half-sister in violation of his constitutional right. “[T]he sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination .... This right, however, is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. . . . The trial court, in its discretion, may impose limitations on the scope of cross-examination, as long as the defendant has been permitted sufficient cross-examination to satisfy constitutional requirements. . . . The confrontation clause does not . . . suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. . . . Only relevant evidence may be elicited and the right to cross-examine is subject to the duty of the court to exclude irrelevant evidence.” (Internal quotation marks omitted.) State v. Henry, 72 Conn. App. 640, 665, 805 A.2d 823, cert. denied, 262 Conn. 917, 811 A.2d 1293 (2002).

The victim’s half-sister provided relevant eyewitness testimony that she saw the defendant perform cunnilingus on the victim and the victim perform fellatio on him. That testimony was relevant to the charges against the defendant. The half-sister also testified that she was afraid of the defendant while she lived with him because he hit her and the victim and threw things. On cross-examination, the half-sister admitted that she had visited the defendant after he had separated from her mother, but she was not concerned for her personal safety because her boyfriend was with her during those visits. She also sent letters, including a Christmas card, to the defendant from New York state, sometimes addressing the envelope “William, Dad, B . . .”

On the basis of our review of the record, we conclude that the court did not infringe on the defendant’s right to cross-examine or to impeach the credibility of the victim’s half-sister. The witness admitted that she had visited the defendant after he separated from her mother, but provided a credible explanation of why she did not fear him then. The content of the letters was irrelevant to the sexual abuse about which she testified and, as the court pointed out, the letters were written a number of years after she had stopped living with the defendant. Moreover, it is not the content of the letters that was relevant, but the fact that the half-sister continued to see and to communicate with the defendant after he had separated from her mother that was germane to her relationship with him. Those facts were before the jury for its consideration, and the court, therefore, did not unfairly restrict the defendant’s right to impeach the credibility of the victim’s half-sister on cross-examination.

Ill

The defendant claims the court, Wollenberg, J., improperly denied the pretrial motion to withdraw filed by defense counsel. We do not agree.

On August 18, 2000, counsel for the defendant filed a motion to withdraw. Shortly thereafter, the defendant sent a letter to the state’s attorney asking that new counsel be appointed for him. Counsel’s motion was heard on September 11, 2000. The defendant represented to the court that counsel would not do what he wanted him to do, and counsel indicated that it was not possible to do some of the things the defendant had requested. The court noted that there must be good . cause to allow defense counsel to withdraw and that, to that point, it had heard only that counsel and the defendant did not like one another. In fact, the defendant conceded that he could work with counsel. The court denied the motion to withdraw. Thereafter, however, the defendant and counsel continued to raise the issue until they were ordered to begin jury selection on September 20, 2000.

“The standard of reviewing both a motion by a defendant to discharge counsel and a motion by counsel to withdraw is the same. ... It is within the trial court’s discretion to determine whether a factual basis exists for appointing new counsel and, absent a factual record revealing an abuse of that discretion, the court’s refusal to appoint new counsel is not improper. . . . Moreover, appellate tribunals look with a jaundiced eye at complaints regarding adequacy of counsel made on the eve of trial .... Such a request must be supported by a substantial reason and, [i]n order to work a delay by a last minute discharge of counsel there must exist exceptional circumstances.” (Citations omitted; internal quotation marks omitted.) State v. Fisher, 57 Conn. App. 371, 382, 748 A.2d 377, cert. denied, 253 Conn. 914, 754 A.2d 163 (2000).

On the basis of our review of the record, we conclude that it fails to disclose any factual representation by defense counsel or the defendant constituting good cause to grant the motion to withdraw. See Practice Book § 3-10 (a). Furthermore, counsel’s motion to withdraw and the defendant’s letter were filed on the eve of trial. The court therefore did not abuse its discretion when it refused to grant counsel’s motion to withdraw.

rv

The defendant claims that the court improperly denied his motion to recuse. We disagree.

Just prior to the start of jury selection, the defendant filed a motion asking the judge to recuse himself. The basis of the defendant’s motion to recuse was the judge’s having sentenced the defendant, on April 9, 1996, in a prior criminal matter. According to the defendant, at the time of sentencing, the judge told him that he would “throw the book at him” if the defendant ever appeared before him again. The judge stated that he had no recollection of the sentencing and doubted that he had said such a thing. The judge refused to continue the case and proceeded with jury selection, but gave the defendant an opportunity to obtain the transcript of the sentencing. Thereafter, the defendant obtained a copy of the transcript of the April, 1996 sentencing and renewed his motion to recuse. During argument before the court, the prosecutor noted that there could be no prejudice to the defendant, as he had violated his probation in the 1996 matter and that the probation violation had been adjudicated by another trial judge. The judge denied the motion, noting that the jury was going to determine the facts and that there is an appellate process that the defendant could access to determine whether the his rulings were improper.

“Accusations of judicial bias or misconduct implicate the basic concepts of a fair trial. Cameron v. Cameron, 187 Conn. 163, 168, 444 A.2d 915 (1982). The appearance as well as the actuality of [partiality] on the part of the trier will suffice to constitute proof of bias sufficient to warrant disqualification. Id., 170. The standard that we employ on appellate review is whether a reasonable person who is aware of the circumstances surrounding the judicial proceeding would question the judge’s impartiality. Papa v. New Haven Federation of Teachers, 186 Conn. 725, 745-46, 444 A.2d 196 (1982); Keppel v. BaRoss Builders, Inc., 7 Conn. App. 435, 440-41, 509 A.2d 51 [cert. denied, 201 Conn. 803, 513 A.2d 698] (1986).” (Internal quotation marks omitted.) DeMatteo v. DeMatteo, 21 Conn. App. 582, 590-91, 575 A.2d 243, cert. denied, 216 Conn. 802, 577 A.2d 715 (1990).

We conclude that there was no appearance of impropriety on behalf of the trial judge in this matter and that the defendant misconstrues the comments made by the judge at the prior sentencing. The judge did not threaten the defendant not to appear before him again because he would “throw the book at him.” At the 1996 sentencing, the judge took time to warn the defendant that if he violated the terms of his probation, the court would order him to serve the entire ten year suspended sentence. See footnote 10. Nothing in the judge’s comments indicated that he would be unfair to the defendant in that or any matter. We also note, as the court did, that it was for the jury, not the court, to determine the defendant’s guilt.

V

The defendant’s fifth claim is that the court improperly denied his motion for a judgment of acquittal. On appeal, the defendant argues that there was insufficient evidence to convict him of the allegations contained in the second, third and fifth counts of the substitute long form information. Count two alleged that the defendant committed sexual assault in the first degree between 1994 and September 4, 1995; count three alleged that the defendant committed sexual assault in the second degree between September 5,1995, and 1996; and count five alleged that the defendant committed risk of injury to a child between 1994 and 1996. We agree with the defendant, and the state concedes, that there was no evidence to support the defendant’s conviction of sexual assault in the second degree between September 5, 1995, and 1996, as the victim had been removed from his care at that time. We do not agree with the defendant’s remaining claims of insufficient evidence.

“[T]he standard of appellate review of a denial of a motion for a judgment of acquittal [challenging the sufficiency of the evidence] has been settled by judicial decision.” (Internal quotation marks omitted.) State v. Jackson, 75 Conn. App. 578, 584, 816 A.2d 742 (2003). “[W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Green, 261 Conn. 653, 667, 804 A.2d 810 (2002).

The state presented evidence from the victim’s therapists, Gibson and Patlikh, that the defendant had sexually abused her from the time she was four until she was eleven years old. The victim became twelve years old on September 5, 1994. The record also contains evidence that the victim had lived with the defendant in the town of S after her parents separated in 1993 until she was removed from his care in 1994 or 1995. Consequently, there was sufficient evidence from which the jury reasonably could have concluded that the defendant was guilty of sexual assault in the first degree and risk of injury to a child occurring in 1994 as alleged in the second and fifth counts of the substitute long form information.

We therefore affirm the judgment of conviction as to the allegations contained in counts two and five, and reverse the judgment of conviction as to count three.

VI

The defendant’s sixth claim is that the court failed to provide him an in camera review of the juvenile file in the neglect proceeding and that following an in camera review of the victim’s Juvenile Court records, the court improperly refused to disclose the records to him. We are not persuaded.

We first review the procedural history of the defendant’s claim. On September 7,1999, the defendant filed a motion for production and disclosure of all exculpatory information or material, including all juvenile records, all psychological examinations or case studies of the victim, all statements by the victim and all exculpatory evidence in which she “vindicated the actions of the defendant.” The defendant supplemented the motion by memorandum dated October 28, 1999, in which he sought, pursuant to General Statutes §§ 17a-28, 17-47a, 46b-142 and 52-14e, production of the juvenile records and Juvenile Court records of the victim. The record does not indicate that the defendant’s September, 1999 motion was acted on by the court.

On September 20, 2000, prior to jury selection, defense counsel informed the court that he did not have access to the juvenile file and that his appearance in the matter had been returned to him. He further represented that he believed that the juvenile file contained exculpatory material. He asked the court to review the juvenile file and to determine what portions of the file he could review to cross-examine the victim. The court ordered that the Juvenile Court records be placed under seal and given to the clerk of the Superior Court, and that the court would review the file after the victim testified to determine whether it contained exculpatory information. The defendant objected, claiming that the records should be made available to him at the start of trial rather than during the middle of trial.

After Gibson, one of the victim’s therapists at the home, had testified, the defendant asked the court that he be permitted to conduct an in camera review of the victim’s juvenile records to determine whether they contained evidence contradicting the testimony of witnesses or provided other exculpatory evidence. Counsel noted that the defendant was a party to the neglect proceedings and that the victim had been removed from his care. The court did not rule at that time.

At the close of the state’s case-in-chief, the defendant again asked that the court turn over the victim’s juvenile file concerning the neglect proceeding. The defendant believed that the juvenile file would demonstrate that the victim had not suffered sexual abuse by the defendant, that the agents of the department of children and families had dropped an investigation of sexual misconduct by the defendant for lack of evidence, and that the victim had alleged that she was molested by third parties, not the defendant. In the alternative, the defendant requested that the court conduct an in camera review of the file. The prosecutor objected to the defendant’s reviewing the juvenile file, arguing that the court, not the defendant, was the proper entity to conduct an in camera review of the juvenile file. The court agreed with the prosecutor and reviewed the juvenile file in camera. The court found no exculpatory information to disclose to the defendant.

On appeal, the defendant claims that the court improperly denied him access to the victim’s Juvenile Court records arguing that he was entitled to review the contents of the file because (1) he was the victim’s father and a party to the juvenile proceeding, and (2) the records contain exculpatory information. At oral argument on appeal, the defendant asked this court to conduct an in camera review of the juvenile record, including the transcript of the proceedings in the Juvenile Court. At trial, the defendant requested that only the file of the proceeding before the Juvenile Court be submitted to the clerk. During trial, the court conducted an in camera review of the juvenile file and thereafter sealed it. We have reviewed all of the motions filed by the defendant in the criminal matter and the transcript of the argument before the court. At no time did the defendant request that the court review the transcript of the juvenile proceeding, and to the extent we are able to ascertain, the defendant never requested that the transcript be sealed and placed with the trial court. We therefore have conducted an in camera review of the juvenile file only.

The defendant argues without citation to any authority that the applicable standard of review is de novo. The state argues that the abuse of discretion standard governs our review of the court’s decision whether to release the victim’s juvenile file. See State v. Olah, 60 Conn. App. 350, 354, 759 A.2d 548 (2000). The defendant’s appellate claim is in two parts: One, that the court improperly refused to turn the juvenile file over to him pursuant to General Statutes (Rev. to 1999) § 46b-124 because he was a party to the action and also because he is the victim’s father; and, two, that the court failed to disclose exculpatory evidence to him following its in camera review.

The defendant’s first claim is that he was entitled to an in camera review of the victim’s juvenile file because he was a party to the action and because he is the victim’s father. The claim requires us to construe § 46b-124 as it applies to the facts of this case.

We construe statutes pursuant to a plenary standard of review. See State v. Sanchez, 75 Conn. App. 223, 232, 815 A.2d 242, cert. denied, 263 Conn. 914, 821 A.2d 769 (2003). “[T]o the extent that the trial court has made findings of fact, our review is limited to deciding whether those findings were clearly erroneous. Where, however, the trial court has drawn conclusions of law, our review is plenary, and we must decide whether those conclusions are legally and logically correct in light of the findings of fact.” State v. Velasco, 248 Conn. 183, 189, 728 A.2d 493 (1999).

“The process of statutory interpretation involves a reasoned search for the intention of the legislature. Frillici v. Westport, [231 Conn. 418, 431, 650 A.2d 557 (1994)]. In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . Bender v. Bender, [258 Conn. 733, 741, 785 A.2d 197 (2001)]. Thus, this process requires us to consider all relevant sources of the meaning of the language at issue . . . .” (Internal quotation marks omitted.) State v. Courchesne, 262 Conn. 537, 577, 816 A.2d 562 (2003) (en banc).

General Statutes (Rev. to 1999) § 46b-124 (a) provides in relevant part: “All records of cases of juvenile matters . . . shall be confidential and for the use of the court in juvenile matters, and open to inspection or disclosure to any third party . . . only upon order of the Superior Court, except that . . . such records shall be available to . . . (B) the parents or guardian of the child or youth until such time as the child or youth reaches the age of majority or becomes emancipated . . . .” (Emphasis added.) The statute does not mention parties.

The defendant claims that because he was a party in the action and because he is the victim’s father, the juvenile file should have been provided to him for an in camera review. The legislative history and purpose of § 46b-124 was addressed by our Supreme Court in In re Sheldon G., 216 Conn. 563, 583 A.2d 112 (1990). “The history of § 46b-124 begins with the enactment of legislation in 1921 that created a separate system of Juvenile Courts. That legislation directed that the records generated by Juvenile Court proceedings be kept separately from other court records, but at the same time it implicitly conferred upon Juvenile Court judges broad discretion to open those records for ‘public inspection.’ Public Acts 1921, c. 336. A legislative amendment in 1941 limited public access to juvenile records ‘only to persons having a proper interest therein and upon order of the court.’ General Statutes (Sup. 1941) § 283f. The 1941 amendment, however, continued to authorize judicial discretion to determine precisely who might have ‘a proper interest’ in the information contained in Juvenile Court records. Juvenile Court judges construed this provision to authorize disclosure of juvenile records ‘whenever in the opinion of the court it is in the best interests of a child.’ Practice Book, 1963, § 1137 [now 35-5].

“In 1969, the legislature significantly amended the juvenile records statute in order to strengthen its confidentiality provisions. The 1969 amendment expressly provided that records of cases brought before the juvenile courts, ‘including studies and reports by probation officers, social agencies, and clinics, shall be confidential and for the use of said court, and open to inspection or disclosure to any third party only upon order of said court.’ . . . Public Acts 1969, No. 794, § 3. Although the amended statute was not designed to eliminate all judicial discretion to order disclosure, it was expected to tighten the authority of the court to prevent indirect disclosure by others.” (Emphasis on original.) In re Sheldon G., supra, 216 Conn. 569-70. There is, therefore, a presumption of confidentiality with respect to Juvenile Court records. Id., 571; see also In re Brianna B., 66 Conn. App. 695, 699, 785 A.2d 1189 (2001); State v. Streater, 36 Conn. App. 345, 351, 650 A.2d 632 (1994), cert. denied, 232 Conn. 908, 653 A.2d 195 (1995).

In re Sheldon G. involved a delinquency proceeding, but the principles of confidentiality embodied in § 46b-124 and discussed in In re Sheldon G. are analogous and applicable to confidential material in termination of parental rights cases. In re Amy H., 56 Conn. App. 55, 62, 742 A.2d 372 (1999). “Juvenile Court records pertaining to neglect proceedings and encompassing information from [the department of children and families] are confidential and subject to disclosure to third parties only upon court order.” State v. Howard, 221 Conn. 447, 459 n.10, 604 A.2d 1294 (1992); State v. Whitfield, 75 Conn. App. 201, 210-13, 815 A.2d 233, cert. denied, 263 Conn. 910, 819 A.2d 842 (2003).

We therefore proceed under the presumption that the victim’s juvenile records should remain confidential. Although neither the state nor the defendant brought to our attention the fact that the victim was an adult at the time of trial; see footnote 3; that fact is critical to our application of the statute to the defendant’s claim that he was entitled to see the file because he is the victim’s father. Section 46b-124 provides an exception to the confidentiality provision for the parent of the child until the child reaches the age of majority. The defendant, therefore, was not entitled to conduct an in camera review of the victim’s juvenile records at the time of trial simply because he was her father.

Furthermore, even if the defendant, as the victim’s father, had a right to see the juvenile file, he could not have disclosed the contents of the file at trial without the permission of the court, as the jury, the prosecutor, witnesses and other persons in the courtroom were third parties to whom the contents of the file could not be disclosed. “Although the court has discretion to order disclosure of records, its discretion must be informed by the policies that the statute is intended to advance. . . . While § 46b-124 does not create a statutory privilege against disclosure of juvenile records for family members of the child who is the subject of proceedings in juvenile matters, it is, however, appropriate to consider the nature of the information generally contained in the juvenile records to decide whether the records should remain confidential.” (Citation omitted; internal quotation marks omitted.) In re Amy H., supra, 56 Conn. App. 63-64.

The defendant also claimed that he should have been permitted an in camera review of the juvenile file because he was a party to the proceeding. In the alternative, the defendant requested that the court conduct an in camera review and disclose to him exculpatory information, particularly information supporting his belief that the victim had been abused by someone else. The presumption of confidentiality of Juvenile Court records may be overcome by the demonstration of a compelling need. In re Sheldon G., supra, 216 Conn. 584; In re Amy H., supra, 56 Conn. App. 62.

“We review the court’s conclusion that the defendant was not entitled to an in camera review of the confidential documents pursuant to our standard of review for the court’s evidentiary rulings. See State v. William C., 71 Conn. App. 47, 62, 801 A.2d 823 (access to confidential records should be left to discretion of trial court), cert. granted on other grounds, 262 Conn. 907, 810 A.2d 277 (2002); State v. Manini, 38 Conn. App. 100, 114, 659 A.2d 196, cert. denied, 234 Conn. 920, 661 A.2d 99 (1995). The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done. . . . State v. Manini, supra, 114.” (Internal quotation marks omitted.) State v. Gonzalez, supra, 75 Conn. App. 381.

The court conducted an in camera review for material that would benefit the defendant in this criminal proceeding and concluded that the juvenile file contained no such information. We have conducted an in camera review of the juvenile file in the neglect proceeding and found that it contains nothing that exculpates the defendant. Our impression, in fact, is that it does not contain even an implication that the victim suffered sexual abuse by someone other than the defendant.

Furthermore, as to the defendant’s claim that he should have been permitted to present evidence that the victim had alleged that other individuals had sexually abused her, Patlikh, another of the victim’s therapists, testified that the victim had disclosed to her that not only the defendant, but also an uncle and another male had sexually abused her. The defendant cross-examined Patlikh on that evidence as well. Consequently, there was evidence before the jury of sexual abuse against the victim by someone other than the defendant.

The court, therefore, properly refused to disclose the victim’s juvenile record to the defendant.

VII

The defendant’s final claim is that the state violated his federal and state constitutional rights against double jeopardy by alleging a continuing courses of conduct in two counts. More specifically, the defendant claims that it was improper for the state to allege a continuing course of sexual assault and risk of injury occurring at the town of B when the victim lived with both of her parents and, in separate counts, a continuing course of sexual assault and risk of injury occurring at the town of S where the victim lived with the defendant alone. In other words, the defendant claims that a continuing course of conduct is just that and that it cannot be segmented by time and place. The defendant’s claim lacks merit.

The defendant did not preserve his claim in the trial court and asks this court to review the claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The record is adequate for our review, and claims of double jeopardy are constitutional in nature. See State v. Chicano, 216 Conn. 699, 705, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991). We conclude, however, that a constitutional violation did not clearly exist and that the defendant was not deprived of a fair trial.

The fifth amendment to the United States constitution provides that no person shall be subject for the same offense to be twice put in jeopardy of life or limb. The fifth amendment is applicable to the states through the fourteenth amendment to the constitution. State v. Woodson, 227 Conn. 1, 7, 629 A.2d 386 (1993). “This constitutional guarantee prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense in a single trial.” Id. “The double jeopardy analysis in the context of a single trial is a two part process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met. . . . The defendant on appeal bears the burden of proving that the prosecutions are for the same offense in law and fact.” (Citation omitted; internal quotation marks omitted.) State v. Kulmac, 230 Conn. 43, 67, 644 A.2d 887 (1994).

The defendant concedes in his brief that there is no double jeopardy question when the state charges multiple acts of specific sexual assault as separate offenses when those counts do not arise out of the same act or transaction. See id., 67-69; see also State v. Snook, 210 Conn. 244, 265, 555 A.2d 390 (charges did not arise out of same transaction), cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989). The defendant’s claim is founded on the allegation that his sexual assault of the victim was a continuing course of conduct. Because the state could not prove a specific date on which the defendant assaulted the victim, it charged him with various acts of sexual assault and risk of injury to a child occurring in the town where the victim first lived with both of her parents and also in the town where the victim lived with the defendant alone. The state properly charged the defendant with a course of sexual conduct in one town and a course of sexual conduct in another town, which occurred at different times. The state, therefore, did not violate the defendant’s double jeopardy rights.

The judgment of conviction as to count three is reversed and the case is remanded with direction to render a judgment of not guilty as to that count and for resentencing in accordance with law. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The victim did not testify at trial. The state called the victim as the first witness, but she was unable to complete her testimony, and the court ordered her brief testimony stricken and instructed the jury to disregard it.

       The victim was bom on September 5,1982. Trial commenced on September 20, 2000. This court takes judicial notice that the victim was eighteen at the time of trial.

       During the court’s hearing on the defendant’s objection, Gibson testified, in part, in response to questions from the prosecutor, as follows:
      “[Prosecutor]: Did you have occasion to treat [the victim]?
      “[The Witness]: Yes, I did.
      “[Prosecutor]: And what was the purpose of that treatment, sir?
      “[The Witness]: To help her therapeutically work through the issues that brought her into our facility.
      “[Prosecutor]: And would you consider that falling under the ambit of mental health care?
      “[The Witness]: Yes, I would.
      “[Prosecutor]: And with respect to that treatment, does that treatment consist in part of your patient describing events to you?
      “[The Witness]: Yes, it does.
      “[Prosecutor]: And are those descriptions of events pertinent to your treatment?
      “[The Witness]: Yes, it is.
      “[Prosecutor]: And with respect to the events that you describe in your report and that I outlined yesterday when you were here in court, concerning, specifically [the victim’s] description of what her father did to her, was that pertinent to your treatment?
      “[The Witness]: Yes, it was.”
      In response to questions from defense counsel, Gibson testified, in part, as follows:
      “[Defense Counsel]: Well, how did she come to your facility? Well, first of all, what is your facility?
      “[The Witness]: It’s the Children’s Home of Cromwell.
      “[Defense Counsel]: Children’s Home of Cromwell, and you treat, not treat, but house children?
      “[The Witness]: We therapeutically treat children.
      “[Defense Counsel]: Why was she there? Who placed her there and under what conditions did they place her there?
      “[The Witness]: She was placed there by the department of children and families to be treated at our facility for therapeutic reasons.
      “[Defense Counsel]: Okay. Did they give you a list of what the therapeutic reasons were?
      “[The Witness]: Yes.
      “[Defense Counsel]: They had a specific designation as to what treatment she was to receive?
      “[The Witness]: They give us referral material. Yes.
      “[Defense Counsel]: You say referral material.
      “[The Witness]: With goals and objectives.”
      Gibson further testified, in part, in response to questions from the prosecutor as follows:

        “[Prosecutor]: Now, in the course of your treatment of [the victim] did she make certain statements to you concerning her father?
      “[The Witness]: Yes, she did. . . .
      “[Prosecutor]: Did you rely on those statements?
      “[The Witness]: I don’t understand?
      “[Prosecutor]: In connection with your therapy, are those statements that you relied upon?
      “[The Witness]: Yes, I did.
      “[Prosecutor]: And what did she tell you that her father did?
      “[The Witness]: She described to me various things that her father asked her to do, sexual favors, playing games. She described that these happened over a period of a long time, from ages four to eleven.
      “[Prosecutor]: And what were the nature of the games that she described?
      “[The Witness]: She described to me in particular playing hide-and-seek and she would have to hide. When she was found, she would have to get undressed, and then she would have to perform sexual favors.
      “[Prosecutor]: And what were the nature of the sexual favors she described?
      “ [The Witness]: She described oral sex, rubbing different body parts, being rubbed, having to lick him and vice versa.”

       Connecticut Code of Evidence § 8-3 (5) provides: “A statement made for purposes of obtaining medical treatment or advice pertaining thereto and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof, insofar as reasonably pertinent to the medical treatment or advice.”

       According to Patlikh, the victim had cut her hands.

       Patlikh testified, in part, on cross-examination as follows:
      “[The Witness]: We work as a treatment team, and one of those people is a psychiatrist.
      “[Defense Counsel]: And who was that?
      “[The Witness]: When [the victim] first came, it was Dr. Gill Landy . . . and then it was Dr. Brian Keys. Both of them are psychiatrists.”

       The half-sister lived with the defendant, her mother and the victim only until the time of the divorce in 1993.

       The defendant also filed a letter asking that his counsel be replaced. He wanted the court to supply him with counsel. At about that time, the defendant qualified for the assistance of a public defender in a nonrelated criminal matter. Defense counsel in the case here had been privately retained.

       The April, 1996 sentencing involved three charges of risk of injury to a child. The court imposed a ten year term of incarceration, execution suspended. At that time, the court stated: “Sir, I want to tell you one thing. Your counsel knows me — don’t come back, because you’ll do the ten years. I’m going to be here awhile. There’s better things in life to do than this nonsense.”

       At the close of the state’s case-in-chief, the defendant filed a motion for a judgment of acquittal. The defendant also filed a postverdict motion for a judgment of acquittal. The court denied both motions.

       As previously noted, the victim was incapable of testifying in this matter. On appeal, the defendant does not claim that his right to cross-examine her was violated.

       The defendant’s motion for the juvenile proceedings file states in part: “The defendant . . . through counsel requests that he be given the juvenile file to inspect regarding a neglect petition filed by the department of children and families. ... On or about the 6th day of January, 1995 the department of children and families filed a neglect petition regarding his daughter who is the alleged victim in the above entitled matter .... The defendant . . . is a party to said action . . . .” (Emphasis added.)

       It is the appellant’s duty to provide an adequate record on appeal. Practice Book § 60-5.

       Practice Book § 35-5 (c) provides: “No material contained in the court record, including the predispositional study, medical or clinical reports, school reports, police reports and the reports of social agencies, may be copied of otherwise reproduced in written form in whole or in part by the parties or their counsel without the express consent of the court.”

       A defendant can prevail on a claim of unpreserved constitutional error “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.


source: Caselaw Access Project

author: FLYNN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. MARC S. SINVIL
    (AC 22239)
    Mihalakos, Flynn and McDonald, Js.

      Argued December 10, 2002
    officially released May 20, 2003

      Carlos E. Candal, for the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, state’s attorney, Leon F. Dalbec, Jr., senior assistant state’s attorney, and David J. Smith, deputy assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, J.

The defendant, Marc S. Sinvil, was convicted following a jury trial of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (2), and unlawful restraint in the second degree in violation of General Statutes § 53a-96. On appeal from the judgment of conviction for those crimes, the defendant claims that the prosecutor engaged in a pattern of misconduct through certain comments made during closing argument. We reverse the judgment of the trial court because we conclude that the challenged prosecutorial argument was improper and deprived the defendant of a fair trial.

The jury reasonably could have found the following facts. The defendant and the victim’s husband, B, had been friends for several years. The defendant came to know the victim, A, through his relationship with B. All three were originally from Haiti. After having known each other for several years, the defendant and A’s family moved to Norwich at approximately the same time. The friendship between the defendant and B was such that B gave the defendant a key to his family’s apartment. The defendant would visit B almost every day. The defendant and B would play cards together at B’s apartment, and the defendant frequently had meals there. Using the key given to him, the defendant also would spend time at his friend’s apartment even when B and A were not there.

In time, both the defendant and B obtained jobs at Foxwoods Casino. The defendant worked as a bus driver, and his scheduled working hours were generally from 4 p.m. until approximately midnight. B worked in a different department and usually was scheduled to work until 2 a.m.

A and the defendant were the two principal witnesses at trial. A testified that at approximately 12:30 a.m. on September 28, 1999, she was sleeping alone in the bedroom she shared with B, while her two sons were sleeping in an adjacent bedroom. A testified that she awoke to find somebody behind her in bed. At first, she believed it to be B, but she turned and discovered that it was the defendant. According to her, she and the defendant struggled, during which time the defendant told her that he loved her and he wanted to have sex with her. She related that the defendant held her hands down as he touched her under her nightgown. At some point, A could feel the defendant becoming aroused. A managed to calm the defendant, and she was able to get to her bathroom and lock herself inside. The defendant stayed for a short time, calling to A from outside of the bathroom, but he eventually left. When B got home from work at approximately 2:30 a.m., A did not tell him what had happened that night.

Approximately two days later, after speaking about the incident with two coworkers and B, A did contact the police. The defendant was arrested and charged with sexual assault in the fourth degree and unlawful restraint in the second degree.

The defendant testified on his own behalf at trial. According to the defendant, he and A had engaged in a continuing consensual extramarital sexual affair over several months. The defendant testified that A and B argued frequently, and that she had turned to their mutual friend, the defendant, for comfort. He claimed that the incident of September 28 was actually a consensual sexual encounter which began in A’s kitchen, where she met the defendant that night, and proceeded to the bedroom. At trial, the defendant maintained that A had accused him of attacking her to protect her reputation in the community.

The jury found the defendant guilty of both counts. Further factual information will be provided as it relates to the various claims raised by the defendant.

The defendant’s claim relates to certain comments made by the prosecutor during closing argument. The defendant claims that during closing argument, the prosecutor engaged in misconduct which deprived the defendant of a fair trial. We agree with the defendant.

Before we begin our analysis of the defendant’s claim, we note that he failed to object to all but one of the allegedly improper remarks that he claims deprived him of his right to a fair trial. Furthermore, the defendant fails to request that we review those unpreserved claims under either State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine; see Practice Book § 60-5; and we, therefore, decline to consider his arguments as to those remarks. See State v. Spillane, 69 Conn. App. 336, 342, 793 A.2d 1228 (2002). Nevertheless, the portion of the prosecutor’s closing argument to which the defendant did object was improper and, under the circumstances of this case, is sufficient to lead us to the conclusion that the defendant’s conviction was a denial of his due process right to a fair trial. As to the portion of the prosecutor’s closing argument to which the defendant did object, thus preserving the issue for appeal, we begin by setting forth our standard of review.

“We have long recognized the special role played by the state’s attorney in a criminal trial. He is not only an officer of the court, like every other attorney, but is also a high public officer, representing the people of the State, who seek impartial justice for the guilty as much as for the innocent. ... By reason of his office, he usually exercises great influence upon jurors. His conduct and language in the trial of cases in which human life or liberty are at stake should be forceful, but fair, because he represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice or resentment.” (Internal quotation marks omitted.) State v. Alexander, 254 Conn. 290, 302, 755 A.2d 868 (2000). “While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury have no right to consider. ” (Internal quotation marks omitted.) State v. Williams, 204 Conn. 523, 538, 529 A.2d 653 (1987).

Our standard of review first requires us to examine the nature of the prosecutor’s conduct to determine whether the statements were improper and, if so, to determine whether the defendant has demonstrated “substantial prejudice,” i.e., that “the trial as a whole was fundamentally unfair and that the misconduct so infected the trial with unfairness as to make the conviction a denial of due process.” State v. Alexander, supra, 254 Conn. 303.

As did the defendant in State v. Williams, supra, 204 Conn. 523, the defendant here claims that the improper remarks of the prosecutor deprived him of a fair trial. In analyzing whether those remarks “so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . [w]e do not focus alone ... on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.” (Citations omitted; internal quotation marks omitted.) Id., 539-40. In making this determination, we focus on several factors, including “(1) the extent to which the misconduct was invited by defense conduct or argument, (2) the severity of the misconduct, (3) the frequency of the misconduct, (4) the centrality of the misconduct to the critical issues in the case, (5) the strength of the curative measures adopted and (6) the strength of the state’s case.” State v. Cruz, 71 Conn. App. 190,205-206, 800 A.2d 1243, cert. denied, 261 Conn. 934, 806 A.2d 1067 (2002); see also State v. Singh, 259 Conn. 693, 723, 793 A.2d 226 (2002); State v. Williams, supra, 540.

We now turn to the particular portion of the prosecutor’s closing ar gument at issue. During the prosecutor’s rebuttal, the following argument was made:

“[Prosecutor]: [I]f a man comes into the apartment while you’re sleeping and he gets into bed with you and if, whether her statement is true, she didn’t expect it, she didn’t invite him, pins her down, holds her down, I believe, and fondles her breasts, that’s not a minor incident. I think she said she was afraid something more was going to happen. That’s a pretty major incident. That’s pretty, pretty horrendous, actually, if you think about what’s happening; even more horrendous if the kids were in the other room. She doesn’t know what’s going to happen to the kids. It makes perfect sense that she’s not going to scream out, because she — and I’ll— I’ll tell you—
“[Defense Counsel]: Objection.
“[Prosecutor]: — a large portion of this trial I was kind of burnt out on what was going on. I was having a hard time focusing.
“[Defense Counsel]: Objection.
“[Prosecutor]: I probably should have asked her why she didn’t scream—
“The Court: What? Is there an objection? What?
“[Defense Counsel]: I don’t — his personal statement.
“The Court: His personal statement when you’re going, ‘I believe,’ ‘I hope.’ Yes, making personal statements is objectionable.
“ [Prosecutor]: Okay. I don’t think I made a mistake on credibility. I just think that my failure to do something—
“The Court: All right. Because you haven’t. You haven’t.
“[Prosecutor]: Okay. It should have been asked of her about the kids. I — I missed — I should have asked her, but the husband came on and said, ‘Room — doors— closing the room.’ They also sleep with the television on a lot. It makes perfect sense that he would — when he came in. There was no testimony from her or from the defendant that there was any screaming or any loud noise going on. Just that he pinned her down and she was afraid. And she was talking to him, ‘get off, get off. I don’t want to do this,’ and that she was afraid that it escalated and she would be raped. So, I want you to keep that in mind. It’s a pretty serious act of what happened.”

The defendant claims that, in the course of the state’s closing argument excerpted here, the prosecutor made improper comments on facts that were not in evidence. We agree with the defendant.

We now turn to the first step in our analysis of whether the defendant was deprived of his due process right to a fair trial by first determining whether summation statements made by the prosecution were improper. If they were not improper, there would be no need to address the second stage of analysis concerning whether substantial prejudice resulted to the defendant.

“A prosecutor, in fulfilling his duties, must confine himself to the evidence in the record. . . . Statements as to facts that have not been proven amount to unsworn testimony, which is not the subject of proper closing argument.” (Citations omitted; internal quotation marks omitted.) State v. Alexander, supra, 254 Conn. 306.

We focus on the prosecutor’s rebuttal closing argument in which he stated that during “a large portion of this trial I was kind of burnt out on what was going on. I was having a hard time focusing.” The prosecutor also remarked that he “probably should have asked [A] why she didn’t scream.” The prosecutor’s own physical or mental condition, the questions that he should have asked, and a lawyer’s trial strategy generally are not permissible subjects of closing argument. See Spiess v. Traversa, 172 Conn. 525, 527, 375 A.2d 1007 (1977) (holding improper counsel’s argument that plaintiff was entitled to something for manner in which defense was conducted); Archambeault v. Jamelle, 100 Conn. 690, 693-94, 124 A. 820 (1924) (holding improper counsel’s argument that opposing counsel knew why plaintiff delayed in bringing action where opposing counsel’s knowledge was not in evidence). By making the challenged remarks, the prosecutor was not confining himself to the evidence in the record.

We note that the prosecutor’s argument that he was “burnt out” violated rule 3.4 (5) of the Rules of Professional Conduct. Rule 3.4 (5) provides that a lawyer will be in violation of the rules if he or she “[i]n trial, allude [s] to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence . ...” In criminal cases, our Supreme Court previously has cited with approval the American Bar Association (ABA) standards with respect to the prosecution and defense function, which require that the “prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law . . . .” (Internal quotation marks omitted.) State v. Gold, 180 Conn. 619, 659, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980), quoting A.B.A., Standards Relating to the Prosecution Function and the Defense Function § 5.8 (d) (1971); see A.B.A., Standards for Criminal Justice (3d Ed. 1993) § 3-5.8.

The prosecutor’s remarks were an appeal to the jury’s sympathies designed to cover a small but critical gap in the evidence. This was improper argument because “[a]n appeal to emotions, passions, or prejudices improperly diverts the jury’s attention away from the facts and makes it more difficult for it to decide the case on the evidence in the record.” State v. Alexander, supra, 254 Conn. 307.

It was improper for the prosecutor during closing argument to attempt to affect the jury’s decision by arguing facts not in evidence, namely, his own physical condition or the questions that he should have asked. See Fonck v. Stratford, 24 Conn. App. 1, 4, 584 A.2d 1198 (1991) (“[c]ounsel may not comment on or suggest inferences from facts not in evidence”). “While a prosecutor may argue the state’s case forcefully, such argument must be fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom. . . . Consequently, the state must avoid arguments which are calculated to influence the passions or prejudices of the jury, or which would have the effect of diverting the jury’s attention from their duty to decide the case on the evidence.” (Internal quotation marks omitted.) State v. Chasse, 51 Conn. App. 345, 357-58, 721 A.2d 1212 (1998), cert. denied, 247 Conn. 960, 723 A.2d 816 (1999).

Analyzing these remarks in light of the factors listed in State v. Williams, supra, 204 Conn. 540, we conclude that the improper remarks by the prosecutor warrant a reversal of the judgment of conviction. The prosecutor’s remarks that he was “burnt out” during the trial and “having a hard time focusing” were made in response to defense counsel’s argument that “if there was some sort of ruckus going on in the bedroom when the kids were sleeping in the other room, I think the kids would wake up in the middle of the night.” In essence, defense counsel was arguing that the fact that A did not scream upon finding the defendant in bed with her supported an inference that the encounter was consensual. While we do not condone defense counsel’s use of the first person, we conclude that he was arguing one possible permissible inference from the evidence. This was proper argument and, therefore, we conclude that it did not invite a response in rebuttal which referred to irrelevant matters not in evidence.

By responding that he “probably should have asked her why she didn’t scream” and that he was “burnt out,” the prosecutor, even more than “diverting the jury’s attention from their duty to decide the case on the evidence”; (internal quotation marks omitted) State v. Chasse, supra, 51 Conn. App. 358; impermissibly invited the jury to excuse the lack of evidence before it as to why A had not screamed. “What the law does require ... is that after hearing all the evidence, if there is something in that evidence or lack of evidence which leaves in the minds of the jury, as reasonable men and women, a reasonable doubt about the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted.” (Emphasis added.) D. Borden & L. Orland, 5 Connecticut Practice Series: Criminal Jury Instructions (3d Ed. 2001) § 2.9, p. 87. If there was a reasonable doubt based upon A’s failure to cry out, that doubt was not excused by the prosecutor’s invitation to the jury to speculate that a question he would have asked, had he not been “burnt out,” would have resolved the issue. It was improper for the prosecutor implicitly to ask the jury to excuse a lack of evidence which otherwise might raise a reasonable doubt in the jurors’ minds because of his personal “burnt out” condition or lack of “focus.”

Although we conclude that there was only a single instance of improper argument preserved for our review, we have no bright line rule that a single instance of misconduct is insufficient to warrant reversal. The frequency of prosecutorial misconduct is only one factor considered in determining whether the defendant’s conviction amounts to a denial of due process, and no one factor in that analysis is dispositive. See State v. Guzman, 73 Conn. App. 683, 691, 809 A.2d 526 (2002), cert. denied, 262 Conn. 937, 815 A.2d 137 (2003).

At no point did the court directly address the prosecutor’s improper remarks. No curative instructions were given at the time of the improper remarks. The only instructions that appear slightly relevant to the prosecutor’s remarks are contained in the court’s charge to the jury when it stated: “You should not be influenced by whether you like me, the lawyers or anybody,” and “You must not be influenced by any personal likes or dislikes, or prejudices or sympathy.” We are not convinced that these general instructions to the jury were sufficient to cure the damage caused by the prosecutor’s remarks.

Furthermore, the credibility of A versus that of the defendant was the critical issue for the jury to decide. It was central to the case. The state did not have an overwhelmingly strong case against the defendant. Compare State v. Pereira, 72 Conn. App. 545, 564-67, 805 A.2d 787 (2002), cert. denied, 262 Conn. 931, 815 A.2d 135 (2003). There were only two witnesses who could testify as to what happened that night, A and the defendant. According to A, the defendant attacked her. According to the defendant, there was no attack, but he and A had been carrying on a consensual sexual affair for several months, and the incident at issue was a continuation of that affair. There was no physical evidence, however, to corroborate either version. In a case such as this where the jury’s decision principally depends on which of two persons is found to be more credible, such improper remarks by a prosecutor during closing argument can tip the balancing of credibility in favor of the state. This is not “a case in which the state’s evidence was so strong that we can say that there was harmless error.” State v. Williams, supra, 204 Conn. 550. A conviction gained in such a manner amounts to a denial of due process of law. Id.

“[T]he burden is on the defendant to prove that the remarks made by the prosecutor were so prejudicial that he was deprived of the opportunity for a fair trial and [that] the entire proceedings were tainted.” (Internal quotation marks omitted.) State v. Richardson, 214 Conn. 752, 760, 574 A.2d 182 (1990). In this case, that burden was not insurmountable given the single eyewitness and lack of physical evidence presented by the state. Although we are mindful of the balance that must be struck by a prosecutor in making his arguments to the jury; see State v. Williams, supra, 204 Conn. 538; in a case such as this, the prosecutor must be particularly circumspect in his speech and conduct to avoid introducing improper and irrelevant factors for the jury’s consideration; see Jenkins v. Commissioner of Correction, 52 Conn. App. 385, 401, 726 A.2d 657, cert. denied, 249 Conn. 920, 733 A.2d 233 (1999); on an issue where there was no evidence presented and where that deficiency could create reasonable doubt. We conclude that the defendant’s conviction must be reversed and the case remanded for a new trial.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The defendant also claims that the inquiry conducted by the court into an instance of possible juror bias was insufficient, to protect his right to a trial by a fair and impartial jury and that he was deprived of a fair trial due to the actions of an interpreter. Because we conclude that a new trial is warranted due to the improper argument of the prosecutor and because these other issues are not likely to recur at the new trial, we do not address these issues.

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to identify the victim or others through whom the victim’s identity may be ascertained. We therefore refer to the victim and her husband as A and B, respectively. See General Statutes § 54-86e.

       The defendant testified that on the night of the incident he worked until 11:30 p.m.

       The defendant also argues that a certain portion of the state’s cross-examination of him was improper because the court allowed him to be impeached by his prior statements made during a telephone conversation with A and B. When the court asked for a foundation for the line of questioning, the prosecutor responded that he had the conversation on tape. The defendant admitted that his testimony at trial was different from what he said in that telephone conversation. The prosecutor, however, never offered the tape into evidence. The defendant asserts that this procedure was improper, but fails to cite a single case, statute or rule of evidence in support of his position. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quota.tion marks omitted.) State v. Beverly, 72 Conn. App. 91, 102, 805 A.2d 95, cert. denied, 262 Conn. 910, 810 A.2d 275 (2002). Moreover, the defendant failed to object to the prosecutor’s mentioning the tape during cross-examination, and failed to request review under either State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error rule. See Practice Book § 60-5.

       The defendant also argues that the prosecutor’s remarks were improper because he was appealing to the emotions of the jury and vouching for the credibility of A. Because we agree that the remarks were improper comment on facts not in evidence, we need not address the defendant’s remaining arguments as to these remarks.

       A.B.A., Standards for Criminal Justice § 3-5.8 provides: “(a) In closing argument to the jury, the prosecutor may argue all reasonable inferences from evidence in the record. The prosecutor should not intentionally misstate the evidence or mislead the jury as to the inferences it may draw.
      “(b) The prosecutor should not express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.
      “(c) The prosecutor should not make arguments calculated to appeal to the prejudices of the jury.
      “(d) The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence.”

       In the course of his rebuttal argument, the prosecutor stated: “And I’ll let you in on a little secret. Yes. They want him convicted because his wife was sexually assaulted. Because the victim was sexually assaulted. That’s why they wanted him convicted.” “[T]he jury is aware that the prosecutor has prepared and presented the case and consequently, may have access to matters not in evidence . . . .” (Internal quotation marks omitted.) State v. Santiago, 73 Conn. App. 205, 219, 807 A.2d 1048 (2002), cert. granted on other grounds, 262 Conn. 939, 815 A.2d 673 (2003). Although the defendant did not object to this remark at the time it was made, it was clearly improper for the prosecutor to imply (by stating that he was letting the jury in on a secret) that he was exposing the jury to matters not in evidence. This remark, though not itself preserved for appeal, demonstrates that the improper remarks which warrant a reversal of the defendant’s conviction were not isolated occurrences.


author: PER CURIAM.

text:
    JAMES OTWELL v. BRUCE BULDUC ET AL.
    (AC 22845)
    Mihalakos, Dranginis and West, Js.
    Submitted on briefs October 31, 2002
    officially released May 20, 2003

      Neil Johnson filed a brief for the appellant (plaintiff).

      David J. Scully filed a brief for the appellees (defendants).
   Opinion

PER CURIAM.

In this personal injury action, the plaintiff, James Otwell, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendants, Bruce Bulduc and William Bulduc. On appeal, the plaintiff argues that the court (1) improperly granted the defendants’ motion in limine to exclude certain evidence concerning Bruce Bulduc’s prior criminal history and (2) improperly denied the plaintiffs motion for a default. We affirm the judgment of the trial court.

In his complaint, the plaintiff alleged that on January 17, 1998, he was a passenger in a motor vehicle that was traveling in the northbound lane on Interstate 95 in Milford. He further alleged that at the same place and time, Bruce Bulduc was operating a motor vehicle owned by William Bulduc. The plaintiff claimed that Bruce Bulduc negligently operated his vehicle in several different respects so as to suddenly and without warning collide into the rear of the plaintiffs vehicle, thereby causing the plaintiff to suffer physical injuries and financial detriment.

On February 19, 2002, the plaintiff filed a motion for a default, alleging that Bruce Bulduc had failed to answer interrogatories. The plaintiff set forth as the basis for the motion his claim that Bruce Bulduc falsely had answered an interrogatory submitted to him concerning statements that he made concerning the alleged accident. The plaintiff represented that despite Bruce Bulduc’s answer that he had not made any such statements, Bruce Bulduc had revealed during a deposition that he had made a statement, by means of a telephone conversation after the incident, to his insurance company. The court sustained the defendants’ objection to the plaintiffs motion.

On February 20,2002, the defendants filed a motion in limine seeking to preclude the plaintiff from introducing evidence of the prior criminal record, or any inquiry related thereto, of Bruce Bulduc. The plaintiff argued that the criminal record bore on the issue of credibility. Additionally, the plaintiff argued that he wanted to introduce the criminal record as evidence of Bruce Bulduc’s prior inconsistent statements. In that regard, the plaintiff pointed out that during the deposition, Bruce Bulduc did not accurately recall his criminal record. The court overruled the plaintiffs objection to the motion, thereby precluding the challenged evidence. Following an evidentiary hearing, a jury returned a verdict in the defendants’ favor, and the plaintiff appealed.

We first address the plaintiffs challenge to the court’s denial of his motion for a default judgment in which he alleged that Bruce Bulduc had failed to answer fairly the interrogatories submitted to him.

We review the court’s denial of the plaintiffs motion for default under an abuse of discretion standard. We afford great weight to the court’s ruling and indulge every reasonable presumption that the court reasonably concluded as it did. Dubreuil v. Witt, 65 Conn. App. 35, 38-39, 781 A.2d 503 (2001).

The court afforded both parties an opportunity to address the plaintiffs motion. The court examined Bruce Bulduc’s deposition testimony as well as the plaintiffs interrogatory. The court did not find that Bruce Bulduc had failed to answer fairly the interrogatoiy submitted to him. In so ruling, it noted that Bruce Bulduc’s deposition testimony was “not very elucidating” and that it was “somewhat confused.” Additionally, the court observed that the questioning over what Bruce Bulduc had told his insurance company occurred four years after the fact. On the basis of the record before us, and affording the court’s ruling every reasonable presumption of correctness, we cannot conclude that the ruling resulted from an abuse of discretion.

We next address the plaintiffs challenge to the court’s granting of the motion in limine. “Our standard of review regarding challenges to atrial court’s evidentiary rulings is that these 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. ... In reviewing claims that the court abused its discretion, every reasonable presumption should be made in favor of upholding the court’s ruling.” (Citation omitted; internal quotation marks omitted.) Kalas v. Cook, 70 Conn. App. 477, 485-86, 800 A.2d 553 (2002).

The court disallowed the evidence for several reasons. It found (1) that despite its slight probative value in assessing Bruce Bulduc’s character, evidence related to the prior criminal convictions would distract the jury’s attention detrimentally from the unrelated issue before it concerning liability in a motor vehicle accident, (2) that the deposition testimony did not constitute a prior inconsistent statement and (3) that permitting the plaintiff to inquire about any perceived inaccuracies in the deposition testimony would amount to a “[backdoor] examination regarding conviction of crimes.”

Despite the evidentiary rule permitting the admission of prior criminal convictions to attack a witness’ credibility, such evidence is not always admissible. As with all evidentiary matters, the court possesses the authority to exclude such evidence where its prejudicial effect outweighs its probative value. See State v. Morgan, 70 Conn. App. 255, 271-72, 797 A.2d 616, cert. denied, 261 Conn. 919, 806 A.2d 1056 (2002).

The rule permitting the introduction of prior inconsistent statements made by a witness is an exception to the rule against hearsay. “The admissibility of a prior inconsistent statement depends on the satisfaction of the following four requirements: (1) the statement must be in writing, (2) the statement must be signed by the declarant, (3) the declarant must possess personal knowledge of the facts contained therein, and (4) the declarant must testify at trial and be subject to crossexamination. Conn. Code Evid. § 8-5 (1); State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).” State v. Rodriguez, 68 Conn. App. 303, 312, 791 A.2d 621, cert. denied, 260 Conn. 920, 797 A.2d 518 (2002).

In the present case, the court properly exercised its discretion in precluding the proffered evidence of Bruce Bolduc’s prior criminal convictions. Having heard the plaintiffs proffer, the court found that the introduction of such evidence would have distracted the jury from the issues in this case and, therefore, that the probative value of the proffered evidence would have been outweighed by its prejudicial impact on the jury. Insofar as the plaintiff sought to impeach Bruce Bolduc with proof of such convictions, the court expressly found, contrary to the plaintiffs claim, that Bruce Bolduc had not misrepresented his criminal record during his deposition testimony. In any event, the plaintiff could not introduce the testimony elicited during the deposition under the rule for admitting prior inconsistent statements. Because the court precluded the plaintiffs inquiry into the prior criminal convictions, Bruce Bolduc did not testify at trial concerning such convictions and, consequently, did not testify in a manner inconsistent with his deposition testimony.

The judgment is affirmed.