author: FOTI, J.

text:
    STATE OF CONNECTICUT v. JOHN WILLIAMS
    (AC 19526)
    Foti, Spear and Flynn, Js.

      Argued June 11
    officially released September 4, 2001

      G. Douglas Nash, public defender, with whom were Kelly D. Bryce and Kathleen G. Klenk, certified legal interns, and, on the brief, Pamela S. Nagy, assistant public defender, for the appellant (defendant).

      John A. East III, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David J. Strollo, senior assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, John Williams, appeals from the judgment of conviction, rendered after a jury trial, of four counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and four counts of risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant claims that the state failed to present sufficient evidence to prove beyond a reasonable doubt that he committed the separate crimes of sexual assault in the first degree by means of (1) cunnilingus and (2) penile and digital penetration of the victim’s vagina. The defendant also claims that the trial court improperly (1) restricted cross-examination, (2) admitted evidence as an exception to the hearsay rule, (3) admitted constancy of accusation testimony and (4) denied his motion for a mistrial because of claimed prosecutorial misconduct during closing argument. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim was bom on November 30, 1991. In 1994, following her parents’ separation, the court awarded custody of the victim to her father. Her mother, a chronic alcoholic, was hospitalized at the Connecticut Valley Hospital, a mental care institution, where she met and developed a relationship with the defendant, who also was a patient. Upon their release, they cohabitated in an apartment where, by agreement with the victim’s father, the victim would visit three weekends a month and on certain holidays.

The apartment was a cramped, one bedroom apartment in which the victim’s mother, the defendant, the victim’s two year old half-brother and her infant half-sister resided. The defendant’s adult, divorced sister Denise, who worked nights, also temporarily roomed at the apartment. Further adding to the congestion were the regular weekend visits of the defendant’s twelve year old son and eight year old daughter, who were the offspring of the defendant’s union with his estranged wife. The living arrangements were, therefore, quite close at best, and the sleeping arrangements varied.

The victim’s mother worked both day and night shifts as a waitress in a restaurant and, as a result, the defendant, who was unemployed, spent a considerable amount of time alone on the weekends with the five children. During the period commencing in October, 1996, and concluding on November 25, 1997, the defendant used these opportunities to subject the victim repeatedly to acts of sexual abuse. The defendant would wait until his children were playing outside, preoccupied with viewing television or playing video games, and then he would summon the victim to the bedroom, where the two younger children were sleeping, or to the bathroom. The defendant subjected the victim to repeated sexual acts, including vaginal intercourse, digital penetration, fellatio and cunnilingus. He also compelled her to masturbate him and at times he masturbated himself while standing over the victim, showering her with his ejaculate. The defendant, who the victim both disliked and feared, warned the victim to “keep it a secret” and not to tell anyone.

On November 23, 1997, after her father had picked her up at the end of her weekend visit, the victim blurted out that the defendant “makes me do sex,” and pointed to her genital area and her mouth. The father notified the police and the state department of children and families (department) and took his child to the family pediatrician. The doctor advised him to have the child examined at the Yale-New Haven Child Sex Abuse Clinic (Yale clinic). The victim’s father scheduled an examination at the clinic.

On November 26, 1997, Meriden police detectives Jennifer Shelton and Gary Brandi interviewed the victim in the principal’s office of her elementary school. They used a neutral, open-ended interviewing technique and, aided by anatomical cartoon drawings and a chart displaying various physiologically diverse phalli, they elicited from the victim the details of the abuse.

On December 3,1997, Janet Murphy, a pediatric nurse practitioner, conducted a medical examination of the victim at the Yale clinic. This examination did not reveal any disease, injuries or physical abnormalities. During the examination, the victim told Murphy that the defendant had penetrated her vagina.

The victim testified at trial regarding the sexual abuse, the physical and physiological characteristics of the turgid penis and the mechanics of male orgasm and seminal ejaculation. John Leventhal, a physician and the prosecution’s expert witness regarding child sexual abuse victims, testified that such knowledge was clearly unusual and wholly inappropriate for a child in the victim’s age group. He also testified that, absent some other source of that knowledge, it supported the strong inference that the victim acquired such knowledge as a result of having been sexually abused. He also testified that delayed disclosure of sexual abuse by child victims was so common that it constituted the norm rather than the exception. Additional facts will be set forth as needed.

I

The defendant first claims that the evidence was insufficient to support his conviction of three counts of sexual assault in the first degree. We do not agree.

“The two part test for evaluating the sufficiency of the evidence in a jury trial is well established. First, the reviewing court construes the evidence presented at trial in a light most favorable to sustaining the verdict. . . . The reviewing court then determines whether the jury could have reasonably found, on the basis of the facts established and the inferences reasonably drawn from them, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. ... In conducting this review, the probative force of the evidence is not diminished where the evidence, in whole or in part, is circumstantial rather than direct.” (Citations omitted.) State v. Wager, 32 Conn. App. 417, 429-30, 629 A.2d 1146, cert, denied, 228 Conn. 912, 635 A.2d 1231 (1993).

To convict a person of sexual assault in the first degree in violation of § 53a-70 (a) (2), the state must prove beyond a reasonable doubt that such person had sexual intercourse with a victim who was under the age of thirteen and that the perpetrator was more than two years older than the victim. General Statutes § 53a-65 (2) defines sexual intercourse as “vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex. Its meaning is limited to persons not married to each other. Penetration, however slight, is sufficient to complete vaginal intercourse, anal intercourse or fellatio and does not require emission of semen. ...”

A

The defendant claims that the state failed to prove beyond a reasonable doubt that he performed cunnilingus on the victim.

Penetration is not required for the commission of cunnilingus, which involves the use of the lips or tongue in the external or internal parts of the sex organs. See State v. Kish, 186 Conn. 757, 764-65, 443 A.2d 1274 (1982). The victim’s testimony, her affirmative answers and the demonstrative evidence presented were sufficient, if accepted as credible, for the jury to have found proven beyond a reasonable doubt that the defendant placed his mouth on the victim’s vagina. The evidence presented at trial, along with the reasonable inferences drawn therefrom, was sufficient to support the jury’s verdict as to count two.

B

The defendant also claims that the evidence was insufficient to support his conviction for the crime of sexual assault in the first degree by digital and penile penetration of the victim’s vagina. Specifically, he claims that the state failed to present sufficient evidence to prove penetration.

The victim testified that the defendant touched her in her private parts with “his fingers” and “his private part,” and that her private part was in the “front one” where “the pee comes out of,” which she called her “wee-wee.” The victim also presented demonstrative evidence of the claimed abuse. Additionally, the state presented Murphy’s testimony as to what the victim had told her and had physically demonstrated relative to the touching and her body.

Accordingly, we conclude that the evidence presented was sufficient to support the conviction as to counts three and four.

II

The defendant next claims that the court improperly prevented him from eliciting from the victim’s father reasons for his divorce from the victim’s mother and the subsequent custodial arrangements. He claims that the court thereby violated his right of confrontation and prevented him from developing, through that witness, evidence of the victim’s bias and motive falsely to accuse him.

The following facts are necessary to place the defendant’s claim in its proper context. The victim openly testified during direct examination and again on cross-examination that she disliked and resented the defendant, was saddened by her parents’ divorce and clung to the hope that her parents would reunite. She testified that she saw arguments between her mother and the defendant on a daily basis and that she knew that the defendant would be in trouble when she made her disclosures, and added that she was happy that she and her mother would never see the defendant again.

The victim’s father testified that his marriage to the victim’s mother was troubled, he sought the divorce, he was awarded custody of the victim, he had entered into a visitation agreement that permitted the victim to spend weekends with her mother and the defendant, and the divorce was finalized one month before the victim made her disclosures. He also indicated that the victim did not like the defendant because he was unkind and teased her.

When defense counsel attempted to ask him about whether the marital woes were caused by extramarital affairs, the court excluded such testimony on relevancy grounds, despite the defendant’s argument that such inquiry was necessary to show the victim’s state of mind and her bias and motive falsely to accuse the defendant.

Defense counsel was permitted to inquire as to the date and length of the divorce proceedings, and the attendant custody and visitation arrangements. Thereafter, defense counsel announced her intention to delve further into the “dynamics” of the divorce proceedings and the impact that they had on the victim to demonstrate the victim’s “state of mind.” The court ruled that defense counsel could explore how the victim reacted to the mechanics of the visitation arrangements. The court noted that defense counsel, during her cross-examination of the victim, already had amply explored her bias or motive. Fearing that the proposed line of inquiry would devolve into “a trial within a trial” and involve irrelevant matters, the court precluded defense counsel from further exploring the effects of the divorce “dynamics” on the victim.

The defendant called as his own witness his son, and the court permitted him to testify about the victim’s jealousy and antipathy toward the defendant.

“[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 .... State v. DeCaro, 252 Conn. 229, 256-57, 745 A.2d 800 (2000). This right, however, is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). 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. State v. Oliver, 41 Conn. App. 139, 144, 674 A.2d 1359, cert, denied, 237 Conn. 920, 676 A.2d 1374 (1996). The confrontation clause does not . . . suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. . . . State v. Pratt, 235 Conn. 595, 604-605, 669 A.2d 562 (1995). Only relevant evidence may be elicited and the right to cross-examine is subject to the duty of the court to exclude irrelevant evidence. Id.” (Internal quotation marks omitted.) State v. Wiener, 58 Conn. App. 203, 208-209, 753 A.2d. 376 (2000), appeal dismissed, 256 Conn. 223, 772 A.2d 592 (2001).

“[T]he trial court has wide discretion to determine the relevance of evidence .... Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. . . . State v. Sullivan, 244 Conn. 640, 653, 712 A.2d 919 (1998). However, [w]hen defense evidence is excluded, such exclusion may give rise to a claim of denial of the right to present a defense. . . . State v. Bova, [240 Conn. 210, 236, 690 A.2d 1370 (1997)]. . . . State v. DeCaro, supra, 252 Conn. 257-58.” (Internal quotation marks omitted.) State v. Wiener, supra, 58 Conn. App. 209. “The proffering party bears the burden of establishing the relevance of the offered testimony.” State v. Beliveau, 237 Conn. 576, 586, 678 A.2d 924 (1996).

“ ‘In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial.’ State v. Roma, 199 Conn. 110, 116, 505 A.2d 717 (1986).” State v. Santiago, 224 Conn. 325, 331, 618 A.2d 32 (1992).

“The constitutional standard is met when defense counsel is permitted to expose to the jury the facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” (Internal quotation marks omitted.) State v. Gaynor, 182 Conn. 501, 509, 438 A.2d 749 (1980). To establish that the court abused its discretion, the defendant bears the burden of demonstrating that the restrictions that the court imposed on the cross-examination were clearly prejudicial. State v. Castro, 196 Conn. 421, 426, 493 A.2d 223 (1985). Once we conclude that the court’s ruling on the scope of cross-examination is not constitutionally defective, we will apply every reasonable presumption in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. Id.

With these standards in mind, we conclude that the defendant’s cross-examination of the witness satisfied constitutional requirements and that the court did not abuse its discretion in limiting the questioning as it did. A review of the record shows the defendant had ample time to cross-examine the witness and clearly elicited from him that the victim disliked the defendant. The defendant was allowed to cover the field of inquiry through the testimony of the victim herself, thus exposing to the jury the facts from which it could determine the victim’s bias and motive falsely to accuse the defendant. We cannot, therefore, conclude that the court abused its discretion in restricting the scope of cross-examination of the victim’s father as to irrelevant collateral matters, which were also at best cumulative of evidence elicited from the victim herself and at least one other witness, the defendant’s son.

Ill

The defendant next claims that the court improperly permitted the testimony of Murphy, the nurse practitioner, because Murphy’s testimony constituted hearsay, did not qualify for an exception and because it fell outside the parameters of the constancy of accusation doctrine as delineated in State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996) (en banc). We disagree.

Two days after the victim disclosed the sexual abuse, the victim’s father took her to her pediatrician to be examined. Her pediatrician told him that the Yale clinic was better suited to perform the examination, so he took the victim there. Neither the department nor the police scheduled that appointment with the Yale clinic. Murphy examined the victim at the Yale clinic.

The court allowed Murphy to testify about the victim’s statements given during her examination. The court ruled that those statements were admissible for substantive purposes pursuant to the medical diagnosis or treatment exception to the hearsay rule.

Murphy testified that she examined the victim and that the primary purpose of the examination was for medical diagnosis and treatment, that is, to determine if the abuse had caused physical injury to the victim or had exposed her to sexually transmitted diseases. To determine which body parts to scrutinize and to obtain bacteriological cultures from, Murphy asked the victim to indicate where on her body the defendant had touched her. The victim “pointed inside the labial folds” and stated “in here,” indicating a depth of penetration beyond the labial folds.

The defendant argued that Murphy’s testimony was inadmissible because it did not fall within the ambit of any of the exceptions to the hearsay rule and because its admission would violate the constancy of accusation doctrine as defined by Troupe. He further argued that a department caseworker had scheduled the examination and that, therefore, the purpose of the examination was primarily investigative and not for medical diagnosis or treatment.

In State v. Troupe, supra, 237 Conn. 304, our Supreme Court modified the constancy of accusation doctrine so that the person to whom a sexual assault is reported may not testify as to the details of the assault to corroborate the complaint. In Troupe, however, the court made clear that its ruling “does not affect those cases in which the details of a sexual assault complaint are otherwise admissible” under the exceptions to the rule against hearsay. Id., 304 n. 19. In the present case, the trial court admitted Murphy’s statements under the medical diagnosis and treatment exception to the hearsay rule.

In Connecticut, 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 medical diagnosis and treatment exception to the hearsay rule. State v. DePastino, 228 Conn. 552, 565, 638 A.2d 578 (1994); State v. Maldonado, 13 Conn. App. 368, 371, 536 A.2d 600, cert, denied, 207 Conn. 808, 541 A.2d 1239 (1988). “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 these ends. State v. Wood, 208 Conn. 125, 134, 545 A.2d 1026, cert, denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988). 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. State v. Dollinger, 20 Conn. App. 530, 534, 568 A.2d 1058, cert, denied, 215 Conn. 805, 574 A.2d 220 (1990). However, [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. State v. Maldonado, [supra, 374]. If the sexual abuser is a member of the child victim’s immediate household, it is reasonable for a physician to ascertain the identity of the abuser to prevent recurrences and to facilitate the treatment of psychological and physical injuries. State v. Dollinger, supra, 535.” (Internal quotation marks omitted.) State v. DePastino, supra, 565.

Our Supreme Court has extended the definition of treating physicians to include individuals involved in the treatment of psychological and emotional injuries. See State v. Wood, supra, 208 Conn. 134; State v. Martin, 38 Conn. App. 731, 739-40, 663 A.2d 1078 (1995), 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). Under the medical treatment exception to the hearsay rule, Connecticut has allowed into evidence statements to physicians, psychologists and psychiatrists made by patients for the purposes of obtaining medical treatment, provided that “(1) the declarant was seeking medical diagnosis or treatment, and (2) the statements are reasonably pertinent to these ends.” State v. Dollinger, supra, 20 Conn. App. 534.

If “statements by the victim are not made directly to a physician but to one who is in the chain of medical diagnosis or treatment, and the declarant’s motive is consistent with the purpose of obtaining medical diagnosis or treatment, the evidence is admissible under the [treating physician’s] exception.” State v. Cruz, 56 Conn. App. 763, 769, 746 A.2d 196, cert, granted on other grounds, 253 Conn. 901, 753 A.2d 938 (2000).

The record discloses that the victim’s statement was necessary for the child’s diagnosis and treatment to identify the parts of the body that might show signs of injury or disease. The primary purpose of the examination was to locate and to treat physical injuries and to determine whether the victim had contracted a sexually transmitted disease. Because the defendant was, under the circumstances disclosed, a member of the victim’s immediate household, her statement identifying him was reasonably relevant to the victim’s diagnosis and treatment.

We conclude that the court did not abuse its discretion in admitting the testimony under the medical diagnosis and treatment exception to the hearsay rule.

IV

The defendant next claims that the court improperly allowed the constancy of accusation testimony of two witnesses, Murphy and Jennifer Shelton, a police detective, in violation of Troupe.

“It is well settled that the doctrine of constancy of accusation does not violate an accused’s constitutional right to confrontation; State v. Troupe, [supra, 237 Conn. 290-91]; or to due process. State v. Villanueva, 44 Conn. App. 457, 460, 689 A.2d 1141, cert, denied, 240 Conn. 930, 693 A.2d 302 (1997). [A] person to whom a sexual assault victim has reported the assault may testify only with respect to the fact and timing of the victim’s complaint; any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim’s complaint with the pending charge, including, for example, the time and place of the attack or the identity of the alleged perpetrator. . . . Thus, such evidence is admissible only to corroborate the victim’s testimony and not for substantive purposes. Before the evidence may be admitted, therefore, the victim must first have testified concerning the facts of the sexual assault and the identity of the person or persons to whom the incident was reported. In determining whether to permit such testimony, the trial court must balance the probative value of the evidence against any prejudice to the defendant. State v. Troupe, supra, 304-305. [Constancy of accusation evidence is not admissible unless the victim has testified, and is subject to cross-examination, concerning the crime and the identity of the person or persons to whom the victim has reported the crime. . . . Id., 293. [W]hether evidence is admissible under the constancy of accusation doctrine is an evidentiary question that will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. . . . State v. Beliveau, [supra, 237 Conn. 592].” (Internal quotation marks omitted.) State v. Cansler, 54 Conn. App. 819, 824-25, 738 A.2d 1095 (1999).

The defendant alleges that the testimony of both Shelton and Murphy was used for substantive details about what allegedly occurred, rather than for any permissible corroborative purposes. The court permitted Muiphy’s testimony as an exception to the hearsay rule and not as constancy of accusation testimony. See part III of this opinion. The court permitted Shelton, over the defendant’s objection, to testify that the victim disclosed to her that the defendant had subjected the victim to “oral” and “genital” “sexual abuse,” and “sexual abuse involving masturbation.” At that time, the court gave a Kmiting instruction to the jury to disregard Shelton’s description of the victim’s disclosure as “graphic” and added: “Now, the testimony of Detective Shelton is being offered under a theory called constancy of accusation, and it means that a witness is able to testify about an alleged report of sexual assault to that witness to corroborate the fact that — to corroborate that the complaint was made. So this witness was testifying not to — she’s not testifying that, in fact, it happened, that, in fact, the child was sexually assaulted. She’s testifying that the child told her that she was sexually assaulted.”

The court also, in its final instructions to the jury, charged as to the weight to be given to the testimony of constancy witnesses and that the victim’s statements were admitted to show “that she claimed that it happened and ... to corroborate her testimony in court.”

Under Troupe, the state is allowed to introduce any constancy of accusation testimony found necessary to associate the victim’s complaint with the pending charges. The various counts alleged sexual abuse in the form of cunnilingus, fellatio, digital and penile penetration of the vagina, and acts of masturbation. Shelton’s testimony regarding the victim’s statements fit within that allowable parameter, and, therefore, the court properly admitted such testimony. Additionally, the court specifically instructed the jury that it should use the testimony only to corroborate the victim’s testimony. The defendant also has failed to show that “substantial prejudice or injustice” resulted from the admission of this evidence.

The defendant’s claim is without merit. The court did not abuse its discretion in admitting Shelton’s testimony as constancy of accusation evidence.

V

In his final claim, the defendant alleges that the court improperly denied his motion for a mistrial that was based on prosecutorial misconduct during closing argument and that such misconduct deprived him of a fair trial. We do not agree.

The defendant argues that the prosecutor “unfairly appealed to the emotions of the jury, vouched for the credibility of [the victim], made inferences about the defense attorney hiding facts and trying to distract the jury from the real issues of the case, and used the defendant’s right to a jury trial against him.”

“[A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. ... A determination of whether a mistrial is warranted is left to the sound judgment and discretion of the trial judge. ... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided.” (Citations omitted; internal quotation marks omitted.) State v. Wooten, 227 Conn. 677, 693-94, 631 A.2d 271 (1993).

“When a verdict is challenged on the basis of the prosecutor’s allegedly prejudicial remarks, the defendant bears the burden of proving the remarks prejudicial in light of the whole trial. . . . The trial court’s ruling is entitled to weight because of the vantage point from which it can observe and evaluate the circumstances of the trial. The trial court is in a better position to determine the propriety of the remarks of counsel and whether . . . they are harmful. . . . [T]he trial court’s determination that the prosecutor’s remarks did not require a new trial must be afforded great weight.” (Internal quotation marks omitted). State v. Rivera, 61 Conn. App. 763, 770, 765 A.2d 1240, cert, denied, 256 Conn. 901, 772 A.2d 599 (2001).

“Prosecutorial misconduct may occur in the course of closing argument and it may be so egregious that no curative instruction could reasonably be expected to remove its impact. State v. Williams, 204 Conn. 523, 539, 529 A.2d 653 (1987). However, [i]n analyzing the defendant’s claim, we ask whether the prosecutor’s conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We do not focus alone, however, 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. . . . Id., 539^0.

“Moreover, our Supreme Court has considered several factors in assessing whether prosecutorial misconduct is so serious as to amount to a denial of due process. Id., 540. These factors include the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case. ... Id.

“In examining the prosecutor’s argument we must distinguish between those comments whose effects may be removed by appropriate instructions . . . and those which are flagrant and therefore deny the accused a fair trial. ... In determining whether the defendant was denied a fair trial we must view the prosecutor’s comments in the context of the entire trial. . . . State v. Haskins, 188 Conn. 482, 457, 450 A.2d 828 (1982).” (Internal quotation marks omitted.) State v. Colon, 52 Conn. App. 670, 674-75, 727 A.2d 796, cert, denied, 249 Conn. 905, 733 A.2d 224 (1999).

The following additional facts are relevant to our resolution of the defendant’s claim. At the beginning of his closing remarks to the jury, the prosecutor stated: “Now, this case involves many brutal, violent and unpleasant facts. . . . The six year old . . . was the victim of horrible and repulsive crimes and she suffered this degradation at the hands of the defendant .... She was humiliated in the worst way imaginable.” The defendant did not object, and we view the remarks as not improper in view of the evidence presented.

Shortly thereafter, the prosecutor argued that the jury had to decide whether the defendant was “guilty of molesting and raping” the victim. The court sustained the defendant’s objection and ordered the state to restrict itself to the terminology contained in the charging document. The prosecutor continued using the terms “sexually assault” and “molest,” to which there was no objection. While the state improperly used a term, rape, which raises an inference of force, an element not charged, we view the impropriety as not severe under the circumstances. The court immediately corrected the prosecutor’s misstatement, thereby minimizing its prejudice.

Thereafter the prosecutor, in commenting on the evidence that the defendant had sexually assaulted and molested the six year old child of his girlfriend, who lived in the same house as the defendant on weekends and who had not even reached puberty, stated that “[s]he was only six years old when this defendant stole her innocence from her forever. Now this defendant is trying to escape responsibility for his actions by denying the charges. The defense is trying to shift the blame onto the claims and to the believability of the state’s witnesses.”

The statements were made only during closing arguments and were not repeated during the course of the trial. As the challenged statements were not “a pervasive quality of the entire proceeding”; State v. Rivera, supra, 61 Conn. App. 774; the defendant has failed to meet his burden of proving that the statements deprived him of a fair trial. See State v. Payne, 63 Conn. App. 583, 592, 777 A.2d 731 (2001).

During final argument, when talking about the lack of resources to allow the taping of witnesses, the prosecutor stated: “If you’ll notice the children, all three of them, you could barely see them all . . . because there’s not a chair high enough in this courtroom for a child witness.” The defendant objected, and the state agreed to move on to another point raised by defense counsel during closing argument. The court did not rule on the objection. The defendant further challenges other portions of the state’s arguments during rebuttal. These challenged arguments appear to be in response to defense arguments during closing that directly questioned the victim’s credibility and motivation.

In his final comment to the jury, the prosecutor stated: “I know that the oath each and every one of you took in this case is important to you . . . and the state knows you’re going to carry out that oath and you’re going to redress the wrongs committed against the victim ... by this defendant.” The court again sustained the defendant’s objection. The court then, before delivering its final instruction, gave a curative instruction as follows: “The court just wishes to state that it’s not appropriate to say that the jury is to redress the wrongs done by [the defendant] on [the victim]. The jury’s responsibility is to decide whether, in fact, [the victim] was abused, and, if so, whether this defendant abused her in accordance with the standards of the finding beyond a reasonable doubt.”

We conclude that the court’s curative instruction was sufficient to negate the prosecutor’s improper remark. The inappropriate comment did not, therefore, deprive the defendant of a fair trial.

The defendant’s final claim is that the prosecutor, together with appealing to the juror’s emotions, injecting extraneous facts in his rebuttal argument and inflaming the jury’s passions in closing argument, offered his personal opinion as to the victim’s credibility. Our review of the record discloses that the prosecutor did not vouch for the victim’s credibility, but rather made fair comment on the evidence presented, the argument of defense counsel and the victim’s testimony and credibility in general. The court, in its final instructions, directed the jury not to be influenced by prejudice, sympathy or passion, and stated that the arguments of counsel should not be considered as evidence in the case.

Viewed in light of all the evidence, even where the prosecutor’s remarks were improper, the challenged statements did not substantially prejudice the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . . .”

       General Statutes § 53-21 (a) provides in relevant pari.: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child, or (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of a class C felony.”

       These claims involving the sufficiency of the evidence pertain to counts two, three and four of the information.

       The defendant claims that the sole affirmative evidence presented that his mouth touched the victim’s private part was elicited through a leading question. The defendant did not object to this question, and the answer elicited may be considered a fact found in the evidence presented. This unpreserved evidentiary claim is not properly part of the issue.

       The defendant again argues that the sole evidence “of anything being ‘in’ [the victim] came from the state’s questioning, which . . . does not constitute evidence.” This unpreserved evidentiary claim is not properly part of this issue. See footnote 4.

       The prosecutor commented that the jury should not punish the victim “for being more intelligent than the average seven year old,” and should not be swayed by defense tactics. He also told the jury to “imagine what [being questioned at trial is] like for a six year old going on seven.”

       The record discloses that defense counsel asked that the statement be stricken as inappropriate argument. The record does not disclose that the trial court acted on that motion.

       The defendant claims that “[t,]he state also insinuated that . . . because he elected to have a jury trial, [he] had done something wrong.” After reviewing the transcripts, we conclude that this claim is without merit.


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. GREGORY JOHNSON
    (AC 20635)
    SchaUer, Spear and Hennessy, Js.
    Argued March 19
    officially released September 4, 2001

      Suzanne Zitser, assistant public defender, for the appellant (defendant).

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Edward R. Narus, senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The jury reasonably could have found the following facts. On July 4, 1996, the Hartford police were called to 39 Ogilby Drive to investigate a shooting. At the scene, the officers found the victim, later identified as Ansley Gayle, barely breathing with a gunshot wound to his chest. Medical personnel transported the victim to Saint Francis Hospital and Medical Center, where he was later pronounced dead.

Lisa Champagnie was with the victim when he was shot. The victim lived with Champagnie’s best friend, Thania Edwards. Champagnie lived with her cousin, Audrey Duckworth. Duckworth was the girlfriend of the defendant, who also lived in the apartment at that time.

Champagnie had a cellular telephone account that served two cellular telephones. Champagnie gave Edwards one telephone with the understanding that Edwards would reimburse her for charges that she incurred. Edwards incurred $741.52 in charges and had not reimbursed Champagnie.

Champagnie learned that Edwards was traveling to Jamaica on vacation and decided to hold personal property of Edwards until she paid the telephone bill. On or about July 1, 1996, the defendant drove Champagnie to Edwards’ apartment, occupied at the time only by the victim. Champagnie told the victim that she had Edwards’ permission to take Edwards’ duffle bag and suitcase, which permission she in fact did not have, and took the luggage that already had been packed for the vacation. When Edwards returned, she confronted Champagnie, and the two agreed that the luggage would be returned in exchange for partial payment of the bill.

On July 4, 1996, the victim telephoned Champagnie and informed her that he would bring the payment with him when he visited the defendant. Champagnie met the victim outside her apartment, and the victim paid her $183. Champagnie then went inside the apartment, returned with the defendant, and the three left together in Edwards’ vehicle to retrieve the luggage. In the vehicle, the defendant warned the victim that he had a gun. Both the defendant and the victim were carrying handguns at the time.

The three arrived at the apartment of Champagnie’s cousin at 43 Ogilby Drive, where Champagnie had stored the luggage. The victim retrieved the bags while the defendant and Champagnie waited. After the bags were placed in the trunk of the vehicle, an argument ensued between the victim and the defendant regarding money owed. It was later disclosed that the debt arose from a marijuana purchase by the victim. The victim replied that he did not have the money at that time. The defendant then grabbed at the victim’s right pocket, and the victim grabbed the defendant by the collar. The defendant demanded the money again, then pulled the handgun from his waistband and shot the victim in the chest. The defendant then searched the victim and took money that he found in the victim’s pocket.

Another witness to the shooting, Marshalene Chin, ran into her apartment at 39 Ogilby Drive and told her mother, Pamela Channer, what had transpired. Channer dialed 911 for the police and an ambulance. Chin did not know the defendant at the time of the shooting, but later identified him from a photographic array.

After the shooting, the defendant left the scene in a vehicle driven by Courtney Smith. Duckworth was a passenger in the vehicle. The defendant ordered Champagnie at gunpoint to get into Smith’s vehicle. The four drove to the apartment of Verona Burnett at 211 Nahum Drive, where they stayed for several hours. The defendant there told Bumett that he had argued with the victim and had shot him.

The next day, the defendant contacted his cousin in New York City and asked for transportation and a place to stay. The defendant, Duckworth and Champagnie were driven to the home of the defendant’s sister in Brooklyn, New York. The defendant held Champagnie there for two weeks, without her consent, claiming that if she left, he would kill her and members of her family.

Duckworth returned to Hartford and relayed information about the criminal investigation to the defendant in New York. The defendant contacted Chin, asking what she knew of the killing and the details on police actions in the investigation. The defendant also had Champagnie call an attorney in Hartford to inform the attorney that a friend of the victim, and not the defendant, had shot the victim. The defendant sent Champagnie to Hartford for the purpose of introducing this misinformation to the police, warning her that if she told the truth, either he or his friends would kill her.

An arrest warrant was issued for the defendant on July 19, 1996. The defendant successfully remained at large until he attempted to enter Canada at Toronto International Airport on June 27, 1997, where he was apprehended and returned by Canadian authorities.

At trial, the defendant’s theory of defense was that his arrest was the result of a mistaken identity and that Champagnie and Chin had falsely implicated him. The defendant did not testify. No evidence was adduced concerning any person for whom the defendant was mistaken.

The jury returned a verdict of not guilty on the murder count but guilty of the lesser included offense of manslaughter in the first degree with a firearm in violation of § 53a-55a (a), felony murder and robbery in the first degree. The court sentenced the defendant to a total effective sentence of fifty-five years imprisonment.

I

The defendant claims first that the court improperly admitted evidence of uncharged misconduct and failed to give a limiting instruction as to that evidence. Specifically, the defendant claims that it was improper to allow Champagnie to testify that the defendant killed the victim as a result of a drug related debt. We are not persuaded.

The following additional facts are relevant to our disposition of this claim. Outside the presence of the jury, the defendant sought to preclude Champagnie’s testimony that the dispute arose out of an unpaid, drag related debt. Defense counsel stated: “ I would object to that coming in because I don’t think it has — I think the prejudicial effect is — outweighs any probative value that it has.” Defense counsel further argued that “[t]he fact of what the money was owed for, I don’t see how that has any bearing on this case or why.” The state responded that “it’s not being offered for the truth but that’s what the defendant said and it gives the jury information as to why there may be a debt owed, what money was owed for what reason.” The court concluded that “[t]he jury has a right to know what they were arguing about,” and allowed the testimony.

A

“The standard of review is clear. The admission of evidence of prior uncharged misconduct is a decision properly within the discretion of the trial court. . . . [E]very reasonable presumption should be given in favor of the trial court’s ruling. . . . [T]he trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done. . . .

The defendant, Gregory Johnson, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree with a firearm in violation of General Statutes § 58a-55a, felony murder in violation of General Statutes § 53a-54c and robbery in the first degree in violation of General Statutes § 53a-134 (a) (2). The defendant claims that (1) the trial court improperly admitted evidence of uncharged misconduct and failed to give a limiting instruction as to that evidence, (2) the prosecutor made improper comments during his closing argument that violated the defendant’s rights to a fair trial and against self-incrimination, and (3) the guilty verdict on the charges of robbery in the first degree and manslaughter in the first degree with a firearm is legally inconsistent. We affirm the judgment of the trial court.

“Evidence of a defendant’s prior misconduct is not ordinarily admissible to prove his bad character or criminal tendencies. . . . Evidence of other misconduct, however, may be allowed for the purpose of proving many different things, such as intent, identity, malice, motive or a system of criminal activity ... or an element of the crime. . . . Such evidence, however, to be admissible must also be relevant and material.” (Citations omitted; internal quotation marks omitted.) State v. Clark, 62 Conn. App. 182, 186-87, 774 A.2d 183, cert, granted on other grounds, 256 Conn. 905, 772 A.2d 597 (2001).

The court properly concluded that the testimony regarding the argument between the victim and the defendant was relevant. Our Supreme Court “previously [has] held that evidence of a victim’s mental state may be relevant to establish the defendant’s motive to kill the victim. See, e.g., State v. Hull, 210 Conn. 481, 501-502, 556 A.2d 154 (1989) ([t]he victim’s mental state was relevant both to show the victim’s fear of the defendant . . . and to establish the defendant’s motive for committing the crime [citations omitted]) . . . .” (Citation omitted; internal quotation marks omitted.) State v. Wargo, 255 Conn. 113, 138, 763 A.2d 1 (2000). Furthermore, the evidence was material because it helped establish an element of the crime; see State v. Green, 62 Conn. App. 217, 240-41, 774 A.2d 157, cert, granted on other grounds, 256 Conn. 927, 928, 776 A.2d 1147, 1148 (2001); specifically, the requisite mental state for robbery. See State v. Brown, 199 Conn. 47, 54-58, 505 A.2d 1225 (1986) (evidence of uncharged misconduct of defendant relevant to show nature of relationship with another party involved with defendant in commission of robbery); State v. Ruffin, 48 Conn. App. 504, 506-508, 710 A.2d 1381 (uncharged misconduct evidence of drag dealing activity of rival gangs relevant to motive for shooting), cert, denied, 245 Conn. 910, 718 A.2d 18 (1998); State v. Jones, 44 Conn. App. 338, 346, 689 A.2d 517 (evidence of drag dealing permitted to show relationship among alleged coconspirators where defendant charged with conspiracy to commit murder), cert, denied, 240 Conn. 929, 693 A.2d 301 (1997); State v. Smith, 42 Conn. App. 41, 49-52, 680 A.2d 1340 (1996) (testimony as to drug dealing relevant to motive in manslaughter, conspiracy to commit murder charges). We conclude that the evidence of the nature of the dispute was both relevant and material to the charge of robbery and thus proceed to our analysis of whether the evidence was more prejudicial than probative.

The court, when balancing the probative value of the evidence against its prejudicial effect, considers the effect on the jury of admitting the evidence. See State v. Ortiz, 40 Conn. App. 374, 380, 671 A.2d 389, cert, denied, 236 Conn. 916, 673 A.2d 1144 (1996). In Ortiz, “the court admitted the challenged testimony after finding that the evidence, although prejudicial to the defendant, was necessary to allow the jury to get the ‘whole flavor of this case’ and to avoid having it look at the circumstances surrounding the death of the victim ‘in a semivacuum.’ ” Id. Because Ortiz involved drags and drag dealing, notwithstanding the fact that the defendant was charged with murder, this court concluded that “[i]t is unlikely that the evidence of the defendant’s prior involvement with drags could have shocked or influenced the jury to the extent that the defendant was deprived of a fair trial . . . [and] rejected] the defendant’s claim that the trial court abused its discretion in admitting the challenged evidence.” (Citation omitted.) Id. We conclude, as we did in Ortiz, that the nature of the argument between the defendant and the victim here was necessary to place the events in context and, therefore, the court did not abuse its discretion in admitting the testimony.

B

The defendant further claims that even if we were to conclude that the evidence was properly admitted, the court improperly failed to provide a limiting instruction. We disagree.

As a preliminary matter, we note that the defendant neither requested a limiting instruction with respect to the testimony, nor excepted to the court’s failure to give such an instruction sua sponte. Our Supreme Court has stated that “[a]bsent a request, the court cannot be required to determine whether or not to give a limiting instruction when, as here, for tactical purposes the defendant might very well have not desired one.” State v. Johnson, 188 Conn. 515, 522, 467 A.2d 1237 (1982).

Furthermore, the defendant presents no exceptional basis for review of this unpreserved claim. Under similar circumstances, we declined the invitation to review such a claim as plain error, concluding that “plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . The failure by the trial court to give, sua sponte, an instruction that the defendant did not request, that is not of constitutional dimension and that is not mandated by statute or rule of practice is not such an obvious error that it will affect the fairness and integrity of and public confidence in the judicial proceedings.” (Citation omitted; internal quotation marks omitted.) State v. Eason, 47 Conn. App. 117, 120, 703 A.2d 130 (1997), cert, denied, 243 Conn. 962, 705 A.2d 552 (1998).

We conclude, given the nature of a single drug transaction in relation to the charges of robbery and murder, that the outcome here should be no different from the one in Eason. The failure of the court sua sponte to give a limiting instruction was not improper.

II

The defendant next argues that the prosecutor made improper comments during his closing argument that violated the defendant’s rights to a fair trial and against self-incrimination. Specifically, the defendant claims that the prosecutor’s closing remarks violated his rights under the fifth, sixth and fourteenth amendments to the United States constitution because the prosecutor vouched for state’s witnesses, appealed to the emotions of the jurors, commented on the defendant’s failure to testify, shifted the burden of proof to the defendant to prove his innocence and implied that a defense witness’ testimony should be discounted because he was accompanied by an attorney. We conclude that these claims are without merit.

The following facts are relevant to our disposition of this issue. During rebuttal closing argument, the prosecutor’s summation included a recap of the witnesses presented and the testimony offered. The prosecutor’s rebuttal largely addressed issues raised in the closing argument of the defendant. The court’s charge to the jury pointed out that the closing arguments were not evidence and were not to be considered as such. The defendant raised no objection to the closing argument and now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), the plain error doctrine and this court’s supervisory powers.

“Because the defendant did not raise the allegations of prosecutorial misconduct at trial, he can obtain review on appeal only under State v. Golding, [supra, 213 Conn. 239-40], or the plain error doctrine. Practice Book § 60-5. When the verdict in a criminal case is challenged on the basis of allegedly prejudicial remarks made by the prosecutor, the defendant bears the burden of proving such prejudice within the context of the trial as a whole. . . . It is well established that [w]e will not afford Golding review to [unpreserved] claims of prosecutorial misconduct where the record does not disclose a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial.” (Citation omitted; internal quotation marks omitted.) State v. Dwyer, 59 Conn. App. 207, 211-12, 757 A.2d 597, cert, denied, 254 Conn. 937, 761 A.2d 763 (2000). “[I]n addressing the jury, [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument.” (Internal quotation marks omitted.) State v. Richardson, 214 Conn. 752, 760, 574 A.2d 182 (1990).

We cannot conclude, having reviewed the excerpts of the state’s closing argument offered by the defendant, that the defendant has carried his burden in establishing any violation that would satisfy the requirements of Golding or plain error review, or would compel this court to resort to its supervisory authority. The state’s rebuttal argument suggests bases for finding the testimony of various witnesses credible. “[T]he state’s attorney did not vouch for the credibility of the witnesses. He merely addressed the witnesses’ qualifications and the inferences the jury could draw therefrom.” State v. Jeudis, 62 Conn. App. 787, 794, 772 A.2d 715, cert, denied, 256 Conn. 923, 774 A.2d 140 (2001).

We also conclude that the defendant’s claim that the prosecutor’s remarks shifted the burden of proof to the defendant to establish innocence and commented on the defendant’s failure to testify are without merit. There is nothing in the record to support those assertions. The portions of the closing argument to which the defendant alludes constitute an attack on the defendant’s theory of misidentification, not improper comment as to the defendant’s refusal to testify. “The remarks of the state’s attorney, therefore, represented reasonable comments on weaknesses in the defendant’s case, including his failure to contradict the state’s evidence and to support his theory of defense and, accordingly, were not comments on the defendant’s failure to testify.” State v. Perry, 58 Conn. App. 65, 71, 751 A.2d 843, cert, denied, 254 Conn. 914, 759 A.2d 508 (2000).

As this court has stated, “even if we were to consider, as the defendant suggests, the prosecutor’s remark along with the defendant’s other unpreserved claims of inappropriate comments by the prosecutor, we cannot say that in the context of the entire trial . . . that the defendant met her burden of proving that the argument deprived her of a fair trial. The fact that all of the defendant’s claims focus on allegedly prejudicial remarks made only during closing argument demonstrates that such comments were not a pervasive quality of the entire proceeding.” (Citation omitted.) State v. Rivera, 61 Conn. App. 763, 774, 765 A.2d 1240, cert, denied, 256 Conn. 901, 772 A.2d 599 (2001).

“It is well settled . . . that a defendant may not prevail under Golding or the plain error doctrine unless the prosecutorial impropriety was so pervasive or egregious as to constitute an infringement of the defendant’s right to a fair trial, nor will we invoke our supervisory authority to reverse an otherwise lawful criminal conviction absent a showing that the conduct of the prosecutor was so offensive to the judicial process that a new trial is necessary to deter such misconduct in the future.” (Internal quotation marks omitted.) State v. Lacks, 58 Conn. App. 412, 422-23, 755 A.2d 254, cert, denied, 254 Conn. 919, 759 A.2d 1026 (2000). We conclude that the prosecutor’s remarks, if offensive at all, were not so pervasive as to deny the defendant a fair trial and, thus, the defendant’s claims as to the state’s closing argument are without merit.

Ill

The defendant’s final claim is that the guilty verdict on the charges of robbery in the first degree and manslaughter in the first degree with a firearm is legally inconsistent. Specifically, he argues that because the mental states required for robbery and manslaughter are mutually exclusive, the defendant may not be convicted of both when the conviction flows from the same act. We are not persuaded.

The defendant seeks review of his unpreserved claim under State v. Golding, supra, 213 Conn. 239-40. “When reviewing a claim that a verdict is inconsistent . . . we look carefully to determine whether the existence of the essential elements for one offense negates the existence of the essential elements for another offense of which the defendant also stands convicted. If that is the case, the verdicts are legally inconsistent and cannot withstand challenge. . . . Put more simply, we determine if there is a rational theory by which the jury could have found the defendant guilty of both crimes. . . .

“It is not inconsistent ... to find that a criminal defendant possesses two different mental states, as long as [the] different mental states relate to different results. State v. Flynn, 14 Conn. App. 10, 27, 539 A.2d 1005, cert denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988). In Flynn, the defendant was convicted of, inter alia, assault on a police officer, which requires intentional conduct, and reckless endangerment, which requires reckless conduct. . . . The convictions resulted from an incident where the defendant, in a crowded bar, threw a beer bottle at several police officers. . . . On appeal, the defendant claimed that the verdict was inconsistent, as he could not have acted intentionally and recklessly with regard to the same factual circumstances. . . . This court concluded that the verdict was not inconsistent because the mental states went to different results. Accordingly, the jury could have found that, by throwing the bottle at the police officers, the defendant acted intentionally with the conscious objective to prevent the officers from performing their duty, while at the same time, he acted recklessly with respect to the other patrons in the bar.” (Citations omitted; internal quotation marks omitted.) State v. Morascini, 62 Conn. App. 758, 761-62, 772 A.2d 703, cert, denied, 256 Conn. 921, 774 A.2d 141 (2001).

In State v. Hawthorne, 61 Conn. App. 551, 554-55, 764 A.2d 1278 (2001), the defendant claimed that a conviction of attempt to commit murder and assault in the first degree constituted an inconsistent verdict because the former charge required intentional conduct, whereas the latter charge required reckless conduct. We rejected that claim because the jury reasonably could have found that the defendant’s attack on the victim consisted of separate criminal acts as to the same victim, and each act supported one charge. Id.

As in Hawthorne, the defendant’s conduct here involved two separate acts. In the first act, the defendant intentionally used a firearm to obtain money from the victim by force. The defendant, using the same weapon, then engaged in conduct, specifically, the robbery, that created a grave risk of death to the victim and thereby caused the victim’s death after the robbery was completed. The robbery was completed without the victim’s death. The fact that the defendant remained at the scene with the weapon and then became involved in the altercation substantiates the manslaughter charge. The two acts pertained to different results and, thus, were mutually exclusive. See State v. Morascini, supra, 62 Conn. App. 762. The defendant therefore cannot establish a clear violation of his constitutional rights under Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-55a (a) provides in relevant part: “A person is guilty ol' manslaughter in the first degree with a firearm when he commits manslaughter in the first degree as provided in section 53a-55, and in the commission of such offense he uses, or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a . . . firearm. ...”

       General Statutes § 53a-54c provides in relevant part: “A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery . . . and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants . . . .”

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon . . . .”

       The defendant claims that the following portion of the state’s closing argument violated his constitutional rights: “Some of you even, maybe, when you got down here and found out it’s a murder case, like, wow, coming for jury duty and suddenly it’s murder. I hit a home run; I get the most important case of all to do. You may have some apprehension about doing it. Obviously you didn’t, because we selected you. But think about that. People can be afraid of what may happen to them. Fear of being a witness, fear of coming forward, giving information, coming in and testifying, what might happen if they do do those things, what can happen to them, you know? Again, let’s talk about the real world here, right? Is this something that we can relate and understand? And you heard some of that. You heard Lisa Champagnie tell you, ‘I was afraid of this man.’ Does that make any sense considering what she told you? I’m standing there; the guy gets in a beef about some money and shoots a guy dead. He tells me and threatens me, well, maybe I ought to pay attention to that, right? I got the best example in the world, I was there; I saw it happen. It’s not hearsay; it’s not relying on somebody else, not puffing. Again, you heard Marsha Chin — I asked her, Are you nervous to be here? She didn’t say she was nervous, she said she was frightened. I’m like, why are you frightened? I’m frightened because of what may happen when I testify in this case. Right out of her mouth. Consider that when you evaluate her testimony, right? Think about that. You can relate to that. You can appreciate the circumstances that they’re in. And again, I told her — she didn’t want to be here, I had to subpoena her, I had to bring her in. She didn’t come voluntarily and say here, I’m glad to be here. Consider that. And even Winsom Burnett, she told you, too. She hadn’t talked to the police before. She was afraid to go to the police with the information she had. The defendant said he shot this guy, right? She came in. She testified. She told you that. She’s nervous and she’s afraid of being here testifying. And I think, again, you can relate to it. Look at your position as a juror. You’re the juror and it’s important. Look at the people who got to come in and put their neck on the line and say this is what I saw, okay? And again, I think you can understand it and appreciate that.”
      * * *
      “The question is: Is the evidence that you have sufficient to find the defendant guilty. The defendant wants you to look at the missing pieces. I’m asking you to look at the pieces of the puzzle that exist and see if you can see the picture in front of you. That’s what we’re talking about. And again, evaluate the defense claim, you know? Is what he says reasonable? Does he have pieces for that picture of the puzzle? What puzzle is he picturing for you and do the pieces fit? All of the pieces, all you know. Like I said, you can take any piece, turn it sideways, backward, forward and look at it different ways and try to harmonize them, see how they fit, are they supported by common sense and experience.
      * * *
      “They found the card: Gregory Johnson. He lives here. The defendant says well, you know, he has no reason to stay there and stuff. Well, you don’t know that. You don’t know why that is. He can’t support that. There’s no pieces as to why he left. . . . I’m giving you some evidence. I’m saying he’s involved in a homicide and he took off. I’m giving you those pieces. He hasn’t given you those pieces. He’s asking you to conjecture on that sense.
      * * *
      “What’s he going to Canada for? You have any evidence why? Go visit relatives? Taire a long appointed vacation? You don’t have those pieces, but you can look at the other pieces you do have. He was leaving the country. Maybe he thought that up there they’re not going to have access to what Connecticut records are, United States records. Maybe that was the purpose. I don’t know. I can’t tell you, but you know that, too.
      * * *
      “And Courtney Simms. Well, he contradicts things, so that what [the] defense claims, well, that’s important because he did that. Well, consider a couple things. He gave a statement to the police, to us, with his lawyer present. He testified with his lawyer present, too. Did you see any other witnesses do that? Consider that when you evaluate his testimony. . . .
      “Again, Lisa Channer got arrested. She gave a statement. Did she call an attorney when she was read her rights and such and say I want my attorney, I want to talk to him before I give you a statement? No. She said I’ll talk to you, tell you everything that I can tell you. Wrote it down. So again, why is [Simms] maybe not being truthful?”

       The court’s charge to the jury was in relevant part as follows: “And in the same way, what either counsel may have said to you in their respective summations as to the facts or the evidence in the case, should have weight wilh you only to the extent that their recollections agree with yours.
      * ❖ *
      “Matters that are not evidence include . . . the arguments and statements of the lawyers. The lawyers are not witnesses. What they have said in their closing arguments is intended to help you interpret the evidence, but it is not evidence. And as I indicated earlier, if the facts as you remember them differ from the way the lawyers have stated them, then it is your memory that controls.”

       In Golding, our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial 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.

       “The plain error doctrine of Practice Book § 60-5 requires a defendant to demonstrate that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . . [W]e consistently have stated that review under the plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Citation omitted; internal quotation marks omitted.) State v. Murphy, 254 Conn. 561, 572, 757 A.2d 1125 (2000).

       Practice Book § 60-2 provides in relevant part: ‘The supervision and control of the proceedings on appeal shall be in the court having appellate jurisdiction .... The court may, on its own motion or upon motion of any parly, modify or vacate any order made by the trial court, or a judge thereof, in relation to the prosecution of the appeal. . . “Our supervisory powers are not a last bastion of hope for every untenable appeal. They are an extraordinary remedy to be invoked only when circumstances are such that the issue at hand, while not rising to the level of a constitutional violation, is nonetheless of utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole.” (Internal quotation marks omitted.) State v. Tate, 59 Conn. App. 282, 289, 755 A.2d 984, cert, denied, 254 Conn. 935, 761 A.2d 757 (2000).

       Practice Book § 60-5 provides in relevant part: “The court may in the interests of justice notice plain error not brought to the attention of the trial court. ...”


text:
    STATE OF CONNECTICUT v. MITCHELL JACOB
    (AC 20213)
    Foti, Dranginis and Daly, Js.

      Argued June 4
    officially released September 4, 2001

      John R. Williams, with whom, on the brief, was Brian D. Russell, for the appellant (defendant).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Gerard P. Eisenman, senior assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Mitchell Jacob, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l). On appeal, he claims that (1) the evidence was insufficient to sustain his conviction, (2) the trial court improperly allowed evidence under the constancy of accusation doctrine and (3) the charging document was constitutionally defective in failing to provide him with adequate notice of the crime with which he was charged. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On September 13, 1997, the victim, a young woman who was a student at Fairfield University, attended a party in Fairfield at a house at the beach that was rented by four women who also attended the university. The victim arrived at approximately 7 p.m. and met the defendant, whom she did not know and who was not a fellow student. Later, they talked and kissed in the kitchen. He asked her to go for a walk, but she refused. There were thirty to forty people at the party.

The victim and the defendant observed a drinking game being played on the deck with the use of Ping-Pong balls, which would occasionally roll off the deck and down a path leading to an embankment. The defendant asked the victim to go with him to retrieve the Ping-Pong balls that had rolled away, the victim agreed to go with the defendant, and they proceeded down the path and the embankment. Once there, the defendant kissed the victim and placed his hands inside her pants, sticking his fingers inside her. The victim screamed, “No, no sex.” The victim felt extreme pain and backed away screaming and moaning. The defendant refused to let her go, and, as they struggled, the victim fell and the defendant was on top of her attempting to penetrate her with his penis. She struggled and managed to get out from under him, but he hoisted himself up and stuck his penis in her mouth. She immediately spit it out, and he continued trying to insert his penis in her mouth, but she resisted. The defendant ejaculated onto her face and left. The victim sustained abrasions on her back, left shoulder and left thigh. She also had multiple abrasions and lacerations in the vaginal area.

I

The defendant claims that the state failed to satisfy its burden of proving beyond a reasonable doubt that he used force or the threat of force to sustain his conviction for sexual assault in the first degree. He also argues that the state failed to prove lack of consent on the part of the victim.

For the defendant to be convicted of the charge, the state had the burden to prove beyond a reasonable doubt that the defendant compelled the victim to engage in sexual intercourse by the use of force or the threat of force. General Statutes § 53a-70 (a) (1); see State v. Davis, 61 Conn. App. 621, 634, 767 A.2d 137, cert, denied, 255 Conn. 951, 770 A.2d 31 (2001).

The defendant does not claim that the acts constituting sexual intercourse did not take place, but rather claims that they were consensual. It appears that the defendant’s claim is that the jury should have believed him rather than the victim. The jury obviously found the victim’s testimony to be credible, namely, that she exclaimed, “No, no sex,” that she backed away in pain, that she struggled and fought, that when the defendant was on top of her she resisted and got out from under him, and that she vigorously resisted and fought his attempts to put his penis in her mouth.

II

The defendant next claims that the trial court improperly allowed as evidence the testimony of two witnesses concerning their conversations with the victim in violation of the evidentiary rule set forth in State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996) (en banc), concerning constancy of accusation testimony in sexual assault cases.

A

The first witness whose testimony is challenged was Susan Birge, a counselor at the university who had counseled the victim for one year. When asked what the victim had told her, she answered: “On the first session, she explained to me that she was at some friend’s house in Fairfield beach and that she was interacting with a young man [and] that they ended up off the deck area. I think it was off the rear of the cottage. And she said that — she described that he started kissing her, that she was frightened, that she was scared, that he stuck his fingers up her, put his hands down her pants and shoved her fingers — his fingers into her vagina. She said it was incredibly painful. She couldn’t sit back the first day that I met her. She was on the edge of the couch. She said it was very painful.”

The defendant did not object to Birge’s testimony, and, therefore, there is no evidentiary ruling for this court to review. The defendant does not seek review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), but rather seeks plain error review. The defendant agrees that there is no constitutional issue involved and that the issue is strictly evidentiary in nature.

We will not undertake a plain error review because the claim is not one that by implication would affect the fairness and integrity of and public confidence in the judicial proceedings. Plain error review is not warranted.

B

The victim’s roommate, Helen Sini, testified that on the night of the assault the victim had told her nothing concerning the details of what had happened but only how she had told the defendant, “No sex,” and that the defendant had hurt her. Sini testified that following the night of the assault, the victim, in talking about the incident, never used the words sexual assault or rape.

The assistant state’s attorney asked Sini: “Did she ever indicate to you . . . that she had been penetrated?” The witness answered, “Yes.” She was then asked, “What did she tell you?” Sini answered, “Well, she told me that he had been inside of her.” Although the defendant argues that his claim as to the testimony of Sini is preserved, the record discloses that the defendant did not object to these questions, nor did he make any motions to strike the answers. The defendant seeks plain error review.

At oral argument, the defendant agreed that the sole issue at trial concerned consent. He admitted to the conduct constituting sexual intercourse. We will not undertake a plain error review because it is not warranted under these circumstances. Even if we were to review this unpreserved claim and to conclude that the testimony violated the rule set forth in Troupe, we would nevertheless conclude that any error was harmless.

Ill

The defendant’s final claim is that the information was constitutionally defective in that it did not inform him of what specific conduct violated the statute. He claims that his rights under the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution were violated. The defendant argues that although this claim was not preserved at trial, we should “review issues of constitutional significance” under State v. Golding, supra, 213 Conn. 239-40, and States v. Evans, 165 Conn. 61, 70, 327A.2d 576 (1973).

Although the record is adequate for review and the defendant alleges a violation of a constitutional right, that alleged constitutional violation does not clearly exist, and the defendant was not deprived of a fair trial. See State v. Golding, supra, 213 Conn. 239-40. Our review of the record discloses that the information contained the specific statutory section that the defendant allegedly violated, together with the date, time and place of the occurrence. The defendant never filed a motion for a bill of particulars. It is the defendant’s burden to file such a motion if greater details are sought about how the crime alleged was committed. State v. Rogers, 38 Conn. App. 777, 789, 664 A.2d 291, cert, denied, 235 Conn. 918, 665 A.2d 610 (1995), cert, denied, 516 U.S. 1084, 116 S. Ct. 799, 133 L. Ed. 2d 747 (1996); see also 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 58f, p. 332. The defendant fails to cite any authority that requires the state to plead facts in an information. Therefore, the defendant may not prevail because his claim fails to satisfy the third prong of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .”

       The prosecutor also asked the witness: “Did she [the victim] indicate to you whether or not there had been force used in order to do that [i.e., penetrate her]?” The defendant objected to the question, and the trial court sustained the defendant’s objection.

       The sixth amendment to the United States constitution provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."

       Article first, § 8, of the constitution of Connecticut provides in relevant part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; [and] to be informed of the nature and cause of the accusation . . . .”

       “In Golding, [our Supreme Court] held: [A] defendant can prevail on a claim of constitutional error not preserved at trial 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. . . . The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Cole, 50 Conn. App. 312, 318, 718 A.2d 457 (1998), affd, 254 Conn. 88, 755 A.2d 202 (2000).