209 Conn.App. 441
Conn. App. Ct.2021Background
- Defendant (James K.) was charged with two counts of first‑degree sexual assault and one count of risk of injury to a child; jury convicted only of risk of injury to a child and acquitted on the sexual‑assault counts.
- Prosecution had a photo of the defendant kissing the victim’s half‑sister on the lips and the victim’s videotaped forensic interview; court excluded the photograph as unduly prejudicial and admitted the forensic interview under the medical diagnosis/treatment hearsay exception.
- During voir dire defense counsel sought to ask venirepersons specifically whether parents kissing children on the lips was appropriate; the court forbade that specific question but allowed more general questions about parents’ physical displays of affection.
- Defense moved to exclude the forensic interview as cumulative and unduly prejudicial; trial court admitted the video, and the transcript was later also admitted without objection to the transcript itself.
- After three days of deliberations the jury reported it was not unanimous and unlikely to reach unanimity; the court gave the standard Chip‑Smith (deadlocked jury) instruction from Connecticut model/jurisprudence; after further deliberations the jury returned a verdict.
- On appeal defendant challenged (1) the voir dire restriction, (2) admission of the videotaped forensic interview, (3) deadlock instructions as coercive, and (4) asked this court to exercise supervisory authority to require explicit non‑verdict language in deadlock charges. Court affirmed the conviction.
Issues
| Issue | State's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Voir dire restriction on asking about parents kissing children on the lips | Court properly excluded fact‑specific voir‑dire that could implant or prejudge evidence, while allowing general questions about physical affection | Prohibition prevented uncovering juror bias specifically against kissing children on the lips and infringed fair‑trial rights | No abuse of discretion: ruling was narrowly tailored, general questions permitted, photograph later excluded, and no harmful prejudice shown |
| Admissibility of videotaped forensic interview | Admissible under medical diagnosis/treatment hearsay exception; relevant and highly probative to conduct alleged | Cumulative, unduly prejudicial, and improperly bolstered the victim’s testimony | Admissible: relevant and highly probative; not unduly prejudicial or merely constancy evidence; court reasonably exercised discretion |
| Deadlocked jury (Chip‑Smith) instruction | Model instruction is accepted by Connecticut precedent and not coercive in context | Requested instruction emphasizing jurors’ right to disagree should have been given; model charge coerced verdict | Instruction not coercive: court followed O’Neil/Feliciano precedent, context did not show coercion |
| Request for supervisory rule requiring explicit non‑verdict language in deadlock charge | Existing Supreme Court guidance (O’Neil) already balances unanimity and juror conscience; no supervisory change needed | Supervisory intervention required to protect against coercion and preserve right to hang | Denied: appellate court declines to override or modify Supreme Court’s established deadlocked‑jury instruction framework |
Key Cases Cited
- State v. Holmes, 334 Conn. 202 (2019) (emphasizing voir dire’s role in assuring an impartial jury)
- State v. Rios, 74 Conn. App. 110 (2002) (discussing voir dire rights and procedure)
- State v. Dolphin, 203 Conn. 506 (1987) (trial court’s duty to prevent voir‑dire abuses)
- State v. Dahlgren, 200 Conn. 586 (1986) (wide discretion in supervising voir dire; reversible only for abuse or harmful prejudice)
- State v. O’Neil, 261 Conn. 49 (2002) (adopting Chip‑Smith deadlocked jury instruction as appropriate method to urge unanimity)
- State v. Gould, 241 Conn. 1 (1997) (supervisory rule on replaying videotaped testimony and concerns about undue emphasis)
- State v. Griswold, 160 Conn. App. 528 (2015) (discussing medical diagnosis/treatment hearsay exception and admissibility of forensic interviews)
- State v. Daniel W. E., 322 Conn. 593 (2016) (limited use of constancy of accusation evidence)