89 Conn. App. 1 | Conn. App. Ct. | 2005
Opinion
The defendant, Rhoderick Boyd, 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) (1), kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A) and assault in the third degree in violation of General Statutes § 53a-61 (a) (1). On appeal, the
The jury reasonably could have found the following facts. In the fall of 1999, the sixteen year old victim attended a boarding school in Connecticut.
On the evening of the assault, the victim was scheduled for a two horn shift. Near the end of her shift, the defendant instructed the victim to go downstairs to clean large pots and pans. The defendant grabbed the victim’s arm and escorted her into the elevator leading
On the day following the assault, the victim participated in a school volleyball game. During the game, she fell to the ground, striking her head. Following her fall, the victim was unable to move. An ambulance transported her to a hospital, where she received treatment. Thereafter, she returned to her parents’ home.
In January, 2000, the victim, who had returned to the boarding school, found a note in her school mailbox. The note read, “Whore, you told, I said not to!” (Emphasis added.) The victim reported this incident to the dean of the school. The defendant’s neighbor, Lawrence Mounds had driven the defendant to the school in the winter after the termination of the defendant’s employment.
After receiving the note, the victim met with Patricia Sullivan, a police detective, who commenced an investigation after taking the victim’s statement. Sullivan and Mark Francis, a police lieutenant, arrived at the defendant’s home and asked him if they could talk with him. They informed him that they wanted to discuss an incident at the school that had occurred in the fall of 1999. The defendant, without prompting, responded, “What, a rape?” The defendant agreed to accompany the officers to the police station and stated that he may have said something that was not “right” to one of the students. After speaking with his wife, however, he declined to go to the police station.
The defendant was arrested, tried and convicted on all counts. The court sentenced the defendant to an
I
The defendant first claims that the court improperly deprived him of his right to confront and to cross-examine the state’s expert witnesses. Specifically, the defendant argues that the court improperly failed to release certain medical records to him concerning the victim. We agree with the defendant that because the state had been allowed to review these records, they should have been disclosed to the defendant also. We conclude, however, that such error was harmless beyond a reasonable doubt.
The following additional facts are necessary for the resolution of the defendant’s claim. Lucy Puryear, a psychiatrist who had treated the victim, was called by the state as a witness and was qualified as an expert in psychiatiy and neurology. Prior to her testimony, the court stated that, as discussed in a chambers conference with counsel, Puryear’s progress notes concerning the assault required redaction. In the absence of the jury, the court stated for the record that certain portions of the progress notes had been redacted and that the redacted notes had been furnished to the defendant. The court marked the original document as a court’s exhibit. The court informed both parties that its ruling was preliminary in nature and that if it was required as a result of Puiyear’s testimony, additional portions of the notes would be disclosed to the defendant as well.
Puryear testified that she had treated the victim for various illnesses, including post-traumatic stress disorder.
Puryear also explained the victim’s inability to move her arms and legs following her fall during the volleyball game. She testified that she had reviewed the victim’s medical records and concluded that her inability to move was not due to a physical injury, but rather was a conversion disorder. According to Puryear, conversion disorder, a coping mechanism, occurs after an intense emotional response following a traumatic event where the person transfers those emotions or feelings into a physical symptom, such as paralysis. This response usually occurs a short time after the traumatic event but does not manifest itself immediately.
Outside of the presence of the jury, defense counsel asked Puryear about a notation in her progress notes regarding “family stressors” that occurred prior to the assault. These stressors involved certain difficulties facing the victim’s sibling. In Puryear’s medical opinion,
After the jury returned, Puryear stated that, in her progress notes, she had indicated the presence of family stressors that had existed prior to the assault and that the victim was frustrated and angry with her parents. On redirect examination, Puryear reiterated that the family stressors were totally unrelated to the victim’s post-traumatic stress disorder symptoms.
The state also called John B. Thomas, Jr., a psychiatric social worker, as a witness. The victim had been referred to Thomas and began treating with him in December, 1999. The victim complained of various symptoms, including anxiety, nervousness, difficulty sleeping and fearfulness. Prior to the start of Thomas’ testimony the next day, the court noted that it previously had redacted Thomas’ handwritten notes of his interviews with the victim. The court stated that it “did not feel at this point that the matters [that were redacted] were subject to disclosure, recognizing that a privilege covers these notes. And much of it, in my view, does not pertain to information regarding the complaining witness, but information relayed by the complaining witness to the therapist relative to other family members. So, I did indicate that my view might change as we go on and I hear more evidence.”
Thomas testified that he saw the victim after she received the note in her school mailbox, which terrified her. On cross-examination, he stated that it was usual for a victim of sexual assault not to disclose everything right away and that his role was to provide therapy,
At the outset of our analysis, we note that prior to the testimony of Puryear and Thomas, the court inquired whether any issues would be raised regarding the victim’s confidential medical records. The court referenced State v. Esposito, 192 Conn. 166, 471 A.2d 949 (1984), and inquired whether the procedure for in camera review outlined in that case would be necessary. The prosecutor represented that the victim had consented to a review of the notes by both the state and the court through an in camera inspection. The victim also agreed that, following the court’s review, the appropriate information contained in the notes as determined by the court could then be turned over to the defendant.
In the present case, in addition to the court’s in camera review, the prosecutor also had access to and reviewed the unredacted notes of Puryear and Thomas. Thus, our resolution of this issue is controlled not by Esposito and its progeny, but by our recent decisions in State v. Palladino, 69 Conn. App. 630, 796 A.2d 577 (2002), and State v. Sells, 82 Conn. App. 332, 844 A.2d 235, cert. denied, 270 Conn. 911, 853 A.2d 529 (2004).
In Palladino, the defendant was convicted of sexually assaulting a prison inmate. State v. Palladino, supra, 69 Conn. App. 631. The victim testified as a witness for the state and, during cross-examination, admitted to a past diagnosis of multiple personality disorder. Id., 632. Defense counsel attempted to obtain her psychiatric records. Despite the victim’s unconditional waiver with respect to her psychiatric records, the court proceeded with an in camera review, adhering to the Esposito procedure. Id., 634-35. In resolving the defendant’s appeal, we stated that “neither our Supreme Court nor this court has held that such an in camera review is necessary where a victim freely gives up any rights to confidentiality that she might otherwise have.” Id., 636. We concluded that “[w]here the state’s complaining witness has freely agreed to the use of her psychiatric records ... we conclude that there is no further initial gatekeeping role for the court. . . . The court improperly refused to release all of the psychiatric records to the defendant, which he had subpoenaed to the court.” (Emphasis added.) Id., 637.
In the present case, the victim orally waived her right to confidentiality, and turned the Puryear and Thomas notes over to the prosecutor, who was able to review them. It was improper at that point for the court to conduct an in camera review of the notes; the notes simply should have been turned over to the defendant.
Following the course taken in Palladino and Sells, we focus our inquiry on the impact of the court’s refusal to release the unredacted notes to the defendant. In engaging in such analysis, we are required to review the notes and to consider how the information contained in them relates to the defendant’s constitutional rights. See id.; State v. Palladino, supra, 69 Conn. App. 638. If
The victim’s testimony at trial contained several inconsistencies relative to her pretrial statements to other witnesses, the police and her medical providers. As the defendant points out in his appellate brief, the victim told the police that the defendant, at the time of the assault, was wearing underwear, but on direct examination, she testified that he was not wearing underwear. Additionally, T, a classmate at the boarding school, testified that the victim had told her that she had been forced to perform oral sex on the defendant. The victim, however, told her therapist that she had no recollection of this or of whether the defendant had penetrated her.
The state utilized Puryear and Thomas, who had treated the victim and were testifying as expert witnesses, to provide the jury with an explanation for the inconsistent statements of the victim. They informed the jury that it was common for an individual suffering from post-traumatic stress disorder or for a recent sexual assault victim to recall the events of the traumatic event in a nonlinear fashion and not to disclose all of the details every time the victim spoke of the assault. Furthermore, it was not unusual for a sexual assault victim not to disclose to a third person all of the intimate details regarding the attack until a certain trust and comfort level were achieved.
We are faced with a situation in which the victim’s privacy rights must be considered relative to the defendant’s constitutional right to cross-examination. “A defendant’s right to a public trial is guaranteed in all criminal proceedings by the sixth amendment to the United States constitution. . . . This right is made applicable to the states through the fourteenth amendment . . . and also is encompassed in article first, § 8, of the Connecticut constitution.” (Internal quotation marks omitted.) State v. Eric M., 79 Conn. App. 91, 96, 829 A.2d 439 (2003), aff'd, 271 Conn. 641, 858 A.2d 767 (2004).
Our review of the record and the original notes of Puryear and Thomas leads us to the conclusion that the refusal to provide the defendant with the unredacted notes was harmless beyond a reasonable doubt. The defendant extensively cross-examined the victim in order to undermine her credibility before the jury. Additionally, the defendant challenged the opinions of Puryear and Thomas with respect to the victim’s inconsistencies. The defendant’s primary argument appears to be that the information contained in the notes would have revealed another source of the symptoms of post-traumatic stress disorder exhibited by the victim, primarily the family stressors. We carefully and critically reviewed the notes and conclude that no such
Having reviewed the materials with full consideration of the damaging potential of cross-examination by the defendant with the benefit of the unredacted notes, we are convinced that such error was harmless beyond a reasonable doubt. Because the defendant took full advantage of the numerous inconsistencies with respect to the victim’s testimony, any additional attempt to impeach her credibility would have been cumulative. Further, any information about the troubles of the victim’s sibling constituted a relatively minor point in the case, as Puryear made it abundantly clear that those troubles were unrelated to the victim. There was nothing in the redacted materials to undermine the expert opinion that the post-traumatic stress disorder symptoms were unrelated to the family stressors.
In short, although the unredacted notes written by Puryear and Thomas should have been provided to the defendant and could have provided some material for cross-examination, we conclude that such error was harmless beyond a reasonable doubt. Accordingly, this claim must fail.
The defendant next claims that the court improperly failed to strike testimony that the victim was sexually assaulted. Specifically, he argues that the court, sua sponte, should have struck Puryear’s testimony that the victim had been sexually assaulted. Although the defendant requests that we review his claim under either State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989),
The following additional facts are necessary to demonstrate why we will not review this issue. During direct examination, Puryear testified in relevant part as follows:
“[The Prosecutor]: All right. When did [the victim] start having problems . . . ?
“[The Witness]: [The victim] started having problems after the incident.
“[The Prosecutor]: October 21, 1999?
“[The Witness]: Correct.
“[The Prosecutor]: And did she have any history of mental problems before the sexual assault?
“[The Witness]: No, she didn’t.”
Puryear subsequently stated that the victim’s inability to move following her fall on the volleyball court was “related to the sexual assault the day before . . . . ”
The defendant relies primarily on State v. Grenier, 257 Conn. 797, 778 A.2d 159 (2001). In that case, our Supreme Court held that certain expert testimony concerning the victim’s truthfulness was improper and should have been stricken following the defendant’s timely objection. Id., 806. In the present case, however, there was no objection to Puryear’s testimony and, therefore, Grenier is inapposite.
We are persuaded that State v. Toccaline, 258 Conn. 542, 547-48, 783 A.2d 450 (2001), provides us with the proper guidance. In that case, a licensed clinical social worker opined that the victim had been sexually assaulted by the defendant. The social worker based this opinion on his discussions with the victim. Id., 548. Finally, the social worker testified that he believed that the victim had been truthful. Id.
The defendant failed to object to the social worker’s testimony. This fatal flaw precluded appellate review and distinguished the case from Grenier, in which similar testimony had been objected to and entitled that defendant to a new trial. Id., 550-52. “The defendant is not entitled to [review] under Golding because his claim does not raise a constitutional issue. In essence, the defendant attempts to put a constitutional tag on a nonconslitutional evidentiary ruling. . . . We previously have stated that the admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved. . . . The trial court’s exercise of discretion in admitting
In an attempt to distinguish the present case from appellate precedent, the defendant argues simultaneously that the court should have stricken Puryear’s comments and that his constitutional right to cross-examine Puryear was infringed on by the court’s failure to release the progress notes to him. The defendant seeks to somehow link the court’s failure to strike the testimony of Puryear with his constitutional claim concerning cross-examination. The thrust of this argument is that the court improperly failed to strike the challenged testimony, which simply is not related to the claim of an improper limitation of cross-examination. As we have stated, “[R]obing garden variety claims [of an evidentiary nature] in the majestic garb of constitutional claims does not make such claims constitutional in nature. . . . Putting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender.” (Internal quotation marks omitted.) State v. Izzo, 82 Conn. App. 285, 291 n.2, 843 A.2d 661, cert. denied, 270 Conn. 902, 853 A.2d 521 (2004). In short, we are not
“[0]ur Supreme Court has stated that once identified, unpreserved evidentiary claims masquerading as constitutional claims will be summarily dismissed.” (Internal quotation marks omitted.) State v. Warren, 83 Conn. App. 446, 451, 850 A.2d 1086, cert. denied, 271 Conn. 907, 859 A.2d 567 (2004). We conclude, therefore, that the defendant’s claim fails under the second Golding prong.
The defendant also requests review pursuant to the plain error doctrine. “[Rjeview under the plain error doctrine 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. . . . [Tjhe core of the plain error doctrine . . . concerns whether a defendant can prevail on the merits of a claim, not simply whether the claim can be reviewed. . . . Consequently, [wjhere a trial court’s action does not result in any manifest injustice, a defendant’s claim under the plain error doctrine does not warrant review.” (Citations omitted; internal quotation marks omitted.) State v. Moore, 85 Conn. App. 7, 11, 855 A.2d 1006, cert. denied, 271 Conn. 937, 861 A.2d 510 (2004).
Our Supreme Court declined to afford the defendant plain error review in Toccaline. State v. Toccaline, supra, 258 Conn. 552; see also State v. Carneiro, supra, 76 Conn. App. 431. Likewise, in the present case, we wdll not review this evidentiary claim under the plain error doctrine.
The defendant next claims that the court improperly denied his motion for a new trial. Specifically, the defendant argues that the state failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and, therefore, he is entitled to a new trial. We are not persuaded.
The following additional facts are necessary for the resolution of the defendant’s claim. Following the conclusion of his trial, the defendant, on August 17, 2001, filed a motion for a new trial pursuant to Practice Book § 42-53.
The court received the clinic records prior to the November 30, 2001 hearing. Defense counsel again requested that the court review these records. At that point, the prosecutor stated that she not only had possession of these records during the trial, but also that she had reviewed them as well. She also informed the court that the clinic records contained “information that would be potentially exculpatory.” Specifically, she discovered information that could have been used to impeach the credibility of the victim; however, “[t]here
Following an extended delay unrelated to the proceedings,
“In Brady v. Maryland, supra, 373 U.S. 87, the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. In order to prove a violation of the state’s obligation to disclose exculpatory evidence under Brady, the defendant bears a heavy burden to establish: (1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that it was mate
As we discussed in part I, because the prosecutor had obtained and reviewed the clinic records, it was unnecessary for the court to conduct an in camera review; the records simply should have been turned over to the defendant. Nevertheless, after a careful review of the clinic records, we conclude that although the records contain some exculpatory evidence, they do not contain any exculpatory evidence that is material under Brady.
To be sure, “[i]t is well established that [i]mpeachment evidence as well as exculpatory evidence falls within Brady’s definition of evidence favorable to an accused.” (Internal quotation marks omitted.) State v. Henderson, 83 Conn. App. 739, 744, 853 A.2d 115, cert. denied, 271 Conn. 913,859 A.2d 572 (2004). The prosecutor conceded to the court that the clinic records contained information that could have been used to impeach the victim’s credibility. We must, therefore, determine whether the information contained in the clinic records was material.
“The test for materiality is well established. The United States Supreme Court ... in United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985), [held] that undisclosed exculpatory evidence is material, and that constitutional error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. The United States Supreme Court recently discussed several aspects of materiality under Bagley that bear
IV
The defendant’s final claim is that he was denied due process of law as a result of prosecutorial misconduct. Specifically, the defendant argues that four instances of prosecutorial misconduct deprived him of his constitutional rights.
At the outset, we note that the defendant concedes that the instances of alleged misconduct were not preserved for our review and therefore seeks review under State v. Golding, supra, 213 Conn. 239-40. “Our Supreme Court, however, recently held that it is not necessary for a defendant to seek to prevail under the specific requirements of Golding in these circumstances. State v. Stevenson, 269 Conn. 563, 572-73, 849 A.2d 626 (2004). The court explained that the touchstone for appellate review of claims of prosecutorial misconduct is a determination of whether the defendant was deprived of his right to a fair trial .... Instead of Golding analysis, the court explained, the determination must involve application of the specific prosecutorial misconduct factors articulated in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987), regardless of whether the defendant objected to the incidents of misconduct at trial. State v. Stevenson, supra, 573.” (Citation omitted; internal quotation marks omitted.) State v. Holliday, 85 Conn. App. 242, 258, 856 A.2d 1041, cert. denied, 271 Conn. 945, 861 A.2d 1178 (2004). Nevertheless, both our Supreme Court and this court have also emphasized that “the responsibility of defense counsel, at the very least, [is] to object to perceived prosecutorial improprieties as they occur at trial, and we continue to adhere to the well established maxim that defense counsel’s failure to object to the prosecutor’s argument when it was made suggests that defense counsel did not believe that it was unfair in light of the record of the case at the time. . . . Accordingly, we emphasize that counsel’s failure to object at trial, while not by itself fatal to a defendant’s claim, frequently will indicate on appellate review that the
As a preliminary matter, we set forth certain relevant legal principles that guide our resolution of this issue. Our Supreme Court has advised that “[t]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, and not the culpability of the prosecutor.” (Internal quotation marks omitted.) State v. Sinvil, 270 Conn. 516, 524, 853 A.2d 105 (2004). “In analyzing claims of prosecutorial misconduct, we engage in a two step analytical process. The two steps are separate and distinct: (1) whether misconduct occurred in the first instance; and (2) whether that misconduct deprived a defendant of his due process right to a fair trial. Put differently, misconduct is misconduct, regardless of its ultimate effect on the fairness of the trial; whether that misconduct caused or contributed to a due process violation is a separate and distinct question that may only be resolved in the context of the entire trial, an inquiry that in the present case necessarily will require evaluation of the defendant’s other misconduct claims.” (Internal quotation marks omitted.) State v. Jarrett, 82 Conn. App. 489, 501-502, 845 A.2d 476, cert. denied, 269 Conn. 911, 852 A.2d 741 (2004). We also note that in order to prove prosecutorial misconduct, the defendant must demonstrate substantial prejudice by establishing that “the trial as a whole was fundamentally unfair and that the
“[I]t is not the prosecutor’s conduct alone that guides our inquiry, but, rather, the fairness of the trial as a whole. . . . We are mindful throughout this inquiry, however, of the unique responsibilities of the prosecutor in our judicial system. A prosecutor 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 [or her] office, [the prosecutor] usually exercises great influence upon jurors. [ The prosecutor’s] conduct and language in the trial of cases in which human life or liberty are at stake should be forceful, but fair, because he [or she] represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice or resentment. If the accused be guilty, he [or she] should none the less be convicted only after a fair trial, conducted strictly according to the sound and well-established rules which the laws prescribe.” (Internal quotation marks omitted.) State v. Waden, 84 Conn. App. 147, 158, 852 A.2d 817, cert. denied, 271 Conn. 916, 859 A.2d 574 (2004).
Because most of the claimed prosecutorial misconduct occurred during closing argument, we set forth the legal principles applicable to such claims. “[P]rosecutorial misconduct of a constitutional magnitude can occur in the course of closing arguments. ... In determining whether such misconduct has occurred, the reviewing court must give due deference to the fact that [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
“Or to put it another way while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. ... A prosecutor must draw a careful line. On the one hand, he should be fair; he should not seek to arouse passion or engender prejudice. On the other hand, earnestness or even a stirring eloquence cannot convict him of hitting foul blows. ... 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.” (Internal quotation marks omitted.) State v. Ancona, 270 Conn. 568, 593-95, 854 A.2d 718 (2004), cert. denied, 543 U.S. 1055, 125 S. Ct. 921, 160 L. Ed. 2d 780 (2005).
Last; we note that “[w]e do not scrutinize each individual comment in a vacuum, but rather we must review the comments complained of in the context of the entire trial. ... It is in that context that the burden [falls] on the defendant to demonstrate that the remarks were so prejudicial that he was deprived of a fair trial and the entire proceedings were tainted.” (Internal quotation marks omitted.) State v. Holmes, 64 Conn. App. 80,
A
We begin our analysis by determining whether the prosecutor engaged in misconduct. Only if we determine that misconduct occurred will we proceed to the question of whether the defendant was denied due process of law. The defendant has set forth four areas of alleged misconduct. We will address each in turn.
1
The defendant first claims that the prosecutor engaged in misconduct during her closing argument by vouching for the credibility of the state’s witnesses and by appealing to the emotions of the jury. “The prosecutor may not express his own opinion, directly or indirectly, as to the credibility of the witnesses. . . . Nor should a prosecutor express his opinion, directly or indirectly, as to the guilt of the defendant. . . . Such expressions of personal opinion are a form of unsworn and unchecked testimony, and are particularly difficult for the jury to ignore because of the prosecutor’s special position. . . . Moreover, because the jury is aware that the prosecutor has prepared and presented the case and consequently, may have access to matters not in evidence ... it is likely to infer that such matters precipitated the personal opinions.” (Internal quotation marks omitted.) State v. Singh, 259 Conn. 693, 713, 793 A.2d 226 (2002).
The defendant first argues that the prosecutor made several comments that vilified him and his counsel and aroused sympathy for the victim. Specifically, he notes the following arguments: “[The victim] was not one of the lucky ones or one of the strong ones. She has had a very difficult time going on with her life after this
Our Supreme Court has cautioned that “[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. . . . When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but
The prosecutor’s comments were made in response to defense counsel’s forceful closing argument during which the victim’s credibility was strenuously attacked, particularly with regard to the various inconsistencies in her statements. Additionally, the evidence before the jury clearly indicated that the victim had injuries that required extensive therapy and medication following the sexual assault. The prosecutor’s comments, therefore, consisted of proper commentary on the evidence and, when read in context, did not result in an improper appeal to the jury’s emotions. See State v. Crocker, supra, 83 Conn. App. 666.
The defendant next argues that certain comments by the prosecutor during rebuttal argument resulted in improper vouching. Specifically, the defendant contends that the comments regarding the victim’s inconsistencies resulted in the prosecutor’s indirectly vouching for the credibility of the victim. We disagree. We note that “ [p]rosecutors may not offer their opinions by vouching for the credibility or truthfulness of a witness. . . .” (Citation omitted; internal quotation marks omitted.) State v. Benjamin, 86 Conn. App. 344, 358, 861 A.2d 524 (2004). In the present case, however, the prosecutor’s comments were in response to the defendant’s attempts during the course of the trial to impeach the victim’s credibility and did not constitute improper vouching. See id.
The prosecutor, however, did directly and improperly vouch for the victim’s credibility during rebuttal argument. She stated to the jury: “Is it surprising that [the victim] might not remember what caused the blackout at the point in time when she gave her statement? And
Of course, a prosecutor “is not permitted to vouch personally for the truth or veracity of the state’s witnesses.” (Internal quotation marks omitted.) State v. Payne, 260 Conn. 446, 454, 797 A.2d 1088 (2002). “[I]t is well established that the evaluation of [witnesses’] testimony and credibility are wholly within the province of the trier of fact. . . . The prosecutor may not express his own opinion, directly or indirectly, as to the credibility of the witnesses.” (Citation omitted; internal quotation marks omitted.) State v. Spencer, 81 Conn. App. 320, 327, 840 A.2d 7, cert. granted on other grounds, 269 Conn. 907, 852 A.2d 738 (2004). We believe that under these facts and circumstances, the comment was improper.
Finally, the defendant argues that the prosecutor committed misconduct by indirectly vouching for the credibility of the victim when the prosecutor suggested that her testimony must be true because she would not be able to deceive Puryear and Thomas, two experienced mental health professionals. Specifically, the defendant refers to the following argument made during closing argument: “This is not a made-up story, ladies and gentlemen. And do you really think [that] if it was a made-up story that somebody like Mr. Thomas, with twenty-five years of experience in adolescent psychiatric social work, would not have picked up on it? Do you really think that Dr. Puryear, who I submit to you is quite a sharp lady, very intelligent, teaches at this medical school, do you think she would not have caught
The state concedes that this was an improper argument. The state, however, argues that this isolated comment did not deprive the defendant of his right to a fair trial.
2
The defendant next claims that the prosecutor committed misconduct by directing the jmy to speculate on facts that were not in evidence. Specifically, the defendant argues that it was improper for the prosecutor to ask the juiy to speculate about the defendant’s mental state and about the meaning of a letter that had been mentioned during Puryear’s testimony, but that was not admitted into evidence. We are not persuaded.
The following additional facts are necessary for our resolution of the defendant’s claim. Puryear testified that she had read a letter from Stuart C. Yudofsky, a psychiatrist who had treated the victim in late December, 1999.
During closing argument, defense counsel specifically referred to the Yudofsky letter and the three hour time frame. He also pointed out how many people were in the dining hall and the time frame of when people left. The thrust of this argument to the jury was that the defendant could not have abused the victim for a period of three hours after she went downstairs with him.
In rebuttal argument, the prosecutor responded to the defendant’s arguments concerning the Yudofsky letter: “And [defense counsel] makes a big to-do about the three hours that Dr. Yudofsky reports that [the victim] was psychologically and sexually abused. Well, we don’t know if Dr. Yudofsky was talking about her entire shift that night in the cafeteria from the time she arrived till the time she got back to her dorm room. Obviously, many people would consider the questions and the manner in which the defendant was speaking to her as sexual or psychological harassment. So, for all we know, he may be referring to that entire period of time from 5:30 until whenever she got back to her dorm room. We don’t know that. We don’t know if that was an error in his report. Dr. Yudofsky did not testify. So, we don’t know that. And defense counsel is encouraging you to speculate. That is not what your job as jurors is.”
“A prosecutor may invite the jury to draw reasonable inferences from the evidence; however, he or she may not invite sheer speculation unconnected to evidence. See State v. Copas, 252 Conn. 318, 336-39, 746 A.2d 761 (2000) (jury’s inferences from evidence must be reasonable and founded upon evidence and cannot be based on mere conjecture); State v. Pouncey, 241 Conn.
Because the defendant raised the issue of the Yudofsky letter in his closing argument, the prosecutor was free to respond to the inferences drawn by defense counsel. “[T]he state may . . . properly respond to inferences raised by the defendant’s closing argument.” (Internal quotation marks omitted.) State v. Singh, supra, 259 Conn. 717. We believe that under these circumstances, the prosecutor, by asking the jury to draw a reasonable inference regarding the letter, did not cross the line demarcating improper comment and move into the improper area of sheer speculation unconnected to the evidence. See State v. Richardson, 86 Conn. App. 32, 40-42, 860 A.2d 272 (2004), cert. denied, 273 Conn. 907, 868 A.2d 748 (2005). The letter was not formally introduced into evidence, nor was Yudofsky called as a witness to explain what the letter meant. Essentially, we are convinced that both parties properly invited the jury to draw a reasonable inference as to the content and meaning of the Yudofsky letter, the meaning of which was ambiguous. Accordingly, we cannot conclude that this constituted prosecutorial misconduct.
The defendant also claims that it was improper for the prosecutor to ask the jury to speculate about his mental state. He specifically objects to the following statement: “Now, with regard to the location where this occurred, since [defense] counsel has emphasized to you what a high traffic area this was where the rape occurred. Well, ladies and gentlemen, rape is a crime
There was evidence before the jury that the defendant had supervised the students working in the dining hall for several weeks. It is a logical inference that he would have known both the routine and the schedule of the students and employees in that area. We cannot agree with the defendant that all of these comments made dining rebuttal argument constituted misconduct. See State v. Singh, supra, 259 Conn. 717 n.22. “In deciding cases . . . [j]urors are not expected to lay aside matters of common knowledge or their own observations and experiences, but rather, to apply them to the facts as presented to arrive at an intelligent and correct conclusion. . . . Therefore, it is entirely proper for counsel to appeal to a jury’s common sense in closing remarks.” (Internal quotation marks omitted.) State v. Rolli, 53 Conn. App. 269, 281, 729 A.2d 245, cert. denied, 249 Conn. 926, 733 A.2d 850 (1999). Such statements did not constitute misconduct.
The prosecutor did, however, commit misconduct by describing rape as often being a “crime of opportunity” that is committed for “the thrill” of it. The jury did not hear any evidence regarding these matters. The prosecutor also argued that the defendant had the opportunity to prepare and to plan his assault on the basis of his knowledge of the activities in the dining hall. Such general comments regarding rapists were neither based on the evidence nor were they within the
“A prosecutor . . . may not . . . inject extraneous issues into the case that divert the jury from its duty to decide the case on the evidence.” (Internal quotation marks omitted.) State v. Blackwell, 86 Conn. App. 409, 422, 861 A.2d 548 (2004), cert. denied, 272 Conn. 922, 867 A.2d 838 (2005). We believe, therefore, that such comments constituted misconduct because they included information that was not contained within the evidence in the case and that was beyond the common knowledge of the jurors.
3
The defendant next claims that the prosecutor committed misconduct by denigrating the role of defense counsel during rebuttal argument and by discrediting T, a witness for the defense. We are not persuaded.
The following additional facts are necessary for our discussion. T, a student at the boarding school, testified that the victim was “pale” and “bigger” than most of her classmates, who tended to be veiy slender and pretty. She also testified that the victim did not have many friends at the school, was lonely and missed her family and friends. T and the victim had a discussion regarding the sexual assault in November, 1999. According to T, the victim stated that she performed oral sex on the defendant and was not upset. T then asked if she could borrow a shirt from the victim and then left.
During closing ar gument, defense counsel made specific reference to T’s testimony: “Now, this is an individ
In response to the defendant’s argument, the prosecutor noted that T appeared to be interested in borrowing a shirt from the victim and not concerned about her well-being. The prosecutor then twice referred to T as “Miss Sensitive.” She continued by stating: “I hope I don’t have friends like that. Do you think her interest went beyond getting a shirt from this pale and needy girl .... Well, she wasn’t too needy for [T] to fit into her shirt. And defense counsel could not resist a little victim bashing through [T] when [T] was [testifying], you know, talking about her being unpopular and not having many friends and not fitting in very well. Well, she’s a member of the volleyball team. She was a good member of the volleyball team, according to the coach. She had her best friend [D] at the school, who went with her to give her statement. This is just, this is just red herrings that the defense counsel is throwing out at you . . . .”
The prosecutor then challenged the defense theory that the victim fabricated the assault in order to be able to return home. She pointed out to the jury that the victim returned to the boarding school to start the next term. “That just does — the defense theory on that does not make sense, ladies and gentlemen. That’s a really stupid way to do it, if that’s what your purpose is: to get out of coming back to school.” Finally, in reference
“It is improper for a prosecutor to denigrate the function of defense counsel. . . . [T]he prosecutor is expected to refrain from impugning, directly or through implication, the integrity or institutional role of defense counsel. ... It does not follow [however] that every use of rhetorical language or device is improper. . . . The occasional use of rhetorical devices is simply fair argument.....[W]e are convinced that reasonable jurors are able to differentiate between lawyers’ ripostes and actual evidence.” (Citations omitted; internal quotation marks omitted.) State v. Holliday, supra, 85 Conn. App. 263.
We have reviewed the entire transcript of the closing argument and are not persuaded that the prosecutor struck a foul blow. Her comments were proper in light of the evidence and defense counsel’s comments during closing argument. First, we are convinced that the prosecutor’s comments regarding T were proper when compared with T’s testimony and the comments made during defense counsel’s closing argument. Although we note the prosecutor’s use of sarcasm, we do not believe that it was used in the excessive and repetitive manner that our Supreme Court cautioned against in State v. Rizzo, 266 Conn. 171, 261-64, 833 A.2d 363
4
The defendant’s final claim of prosecutorial misconduct stems not from closing argument, but from the testimony of the state’s rebuttal witness, the father of the victim. Specifically, the defendant argues that the prosecutor improperly elicited testimony from the victim’s father that she knew could have been impeached by information contained in the unredacted notes of Thomas. He further contends that the prosecutor’s failure to turn over the clinic records was not only a Brady violation, but prosecutorial misconduct as well.
We quickly may dispose of the defendant’s latter claim. In part III, we determined that although the prosecutor should have turned the clinic records over to the defendant, the failure to do so was not material and, therefore, not a Brady violation. Accordingly, even if we were to determine that the prosecutor committed misconduct by failing to disclose the clinic records to the defendant, we already have concluded that this was not a Brady violation. It follows, therefore, that the defendant’s right to a fair trial was not implicated and, thus, his claim of prosecutorial misconduct on this basis must fail.
With respect to the defendant’s former claim, the following additional facts are necessary. The prosecutor called the victim’s father as a rebuttal witness. He stated that he had hired a police officer to stay outside of his house for more than one year following the assault. He also testified that the victim had been fearful that the defendant would appear in her hometown.
The prosecutor called the victim’s father to rebut the defense argument that the victim had returned to the school several years after the assault to attend the graduation of D. Defense counsel attempted to show that during that return, the victim appeared happy and untroubled at the school. Essentially, the defendant argued that if the victim had been sexually assaulted at the school, she could not have returned to the scene of the crime. The victim’s father testified that to protect his daughter, he purposefully withheld information that the defendant had been released on bond. He stated that she was so insecure and frightened following the assault that he had to hire a police officer to help secure his home and to allay his daughter’s fears. We are not persuaded by the defendant’s attempt on appeal to argue that the implication of this testimony was to convince the jury that the defendant was so dangerous that he might travel to the victim’s home and harm her. Moreover, even if we agreed with the defendant that Thomas’ notes would have provided him with impeachment material with respect to the victim’s father, we conclude that such a failure was not material within Brady.
B
Having concluded that some of the prosecutor’s comments
1
We have determined that it was improper for the prosecutor to vouch directly for the victim’s credibility by arguing that the victim did not fabricate a story to explain how she came to be on the downstairs floor of the dining hall and that the victim was “honest with [the jury] about that.” We conclude that these improper comments did not deprive the defendant of his right to a fair trial.
2
The state concedes that it was improper for the prosecutor to argue to the jury that the victim’s testimony must be true because she would not be able to deceive Puryear and Thomas, two experienced mental health professionals. The defendant classified this as improper vouching for the credibility of the victim.
As we previously noted, no pattern of misconduct prevailed throughout the proceedings. Additionally, the defendant failed to object to the comments or to request any curative instructions. During the charge to the jury, the court emphasized that it was the jury’s role to assess the credibility of the witnesses and to weigh the evidence, including that from expert witnesses, and that the jury should avoid basing its conclusions on sympathy or personal likes or dislikes. Simply put, we agree with the state that the comments with respect to Puryear and Thomas, although improper, did not deprive the defendant of his due process right to a fair trial.
3
The final area of misconduct concerns the prosecutors’ description of rape as a “crime of opportunity” and the argument that rapists commit that crime for “the thrill” of it. These isolated comments regarding the mental state of some rapists served as background material for the prosecutor’s argument that this defendant, with his knowledge of the schedules of the students and employees, and knowledge of the operation of the dining hall, was in fact able to commit the crime. The comments were made in response to defense counsel’s argument that such a crime could not have been committed in the dining hall. They were not objected to, nor was a curative instruction requested. Finally, these broad statements were not severe when considered in the context of the entire proceeding. In short, the comments did not deprive the defendant of his right to a fair trial.
C
The defendant’s final claim is that we should reverse his conviction under our inherent supervisory powers.
The judgment is affirmed.
In this opinion the other judges concurred.
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 her identity may be ascertained. See General Statutes § 54-86e.
M, a student who also worked in the dining hall, observed the defendant speaking with the victim and noticed that the victim appeared to be uncomfortable. She also overheard the defendant ask the victim for her telephone number.
S, an adult employee at the boarding school and the victim’s adviser, performed a routine dormitory check and observed the victim after the assault. S testified that the victim was not her usual self and that the victim asked if she could change employment because a man had been bothering her and making her feel uncomfortable.
A, a teacher at the boarding school and the volleyball coach, stayed with the victim in the hospital. A testified that the victim had told her that a man had been bothering her in the dining hall by asking for her telephone number and making inappropriate comments. The victim also informed A that she did not want to return to her job in the dining hall and that she was worried about the other girls who worked there.
Mounds also testified that the defendant had made comments regarding the appearance of the girls at the school.
Puryear noted that the victim also suffered from a major depressive disorder, an eating disorder and a generalized anxiety disorder.
The prosecutor reported to the court that the victim had provided an oral waiver authorizing review of the notes by both the state and the court.
General Statutes § 52-146e provides in relevant part: “(a) All communications and records as defined in section 52-146d shall be confidential [and] no person may disclose or transmit any communications and records or the substance or any part or any resume thereof which identify a patient to any person, corporation or governmental agency without the consent of the patient or his authorized representative.
“(b) Any consent given to waive the confidentiality shall specify to what person or agency the information is to be disclosed and to what use it will be put. . . .”
As defined in General Statutes § 52-146d (3), consent “means consent given in writing by the patient or his authorized representative . ” (Emphasis added.) Thus, it appears that the prosecutor should have obtained the written consent of the victim, rather than her oral consent. The parties have not raised this issue, and we believe that it is not material to our discussion.
We also note that the victim limited her consent to the disclosure of records that the court determined were necessary to be turned over to the defendant. The court never made this determination. We are mindful that “[t]he people of this state enjoy abroad privilege in the confidentiality of their psychiatric communications and records . . . and the principal purpose of that privilege is to give the patient an incentive to make full disclosure to a physician in order to obtain effective treatment free from the embarrassment and invasion of privacy which could result from a doctor’s testimony.” (Citation omitted; internal quotation marks omitted.) Falco v. Institute of Living, 254 Conn. 321, 328, 757 A.2d 571 (2000). Because it is unnecessary to do so, we decline the opportunity to reveal the specific
We note that both Palladino and Sells were decided after the defendant’s trial.
Due to a misunderstanding in the clerk’s office, appellate counsel for the defendant was able to review the sealed documents. Upon realizing this error, the defendant’s counsel filed a motion for rectification, which the court granted, and the records were resealed.
We note that the victim testified that she told Thomas only some of the details of the assault and that that was only after she “felt safe” with him. She later clearly indicated to the jury that there was no doubt in her mind
“Because the defendant has not briefed his claim separately under the Connecticut constitution, we limit our review to the United States constitution. We have repeatedly apprised litigants that we will not entertain a
The defendant concedes that he did not preserve his claim at trial for appellate review. We also note that the four Golding prongs are weU known, and we need not recite them here.
Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”
Although perhaps the court would have been required to strike this portion of Puiyear’s testimony after a proper objection, we cannot conclude that the defendant’s constitutional rights were implicated or that the defendant received a fundamentally unfair trial. See State v. Toccaline, supra, 258 Conn. 550-51.
The defendant also filed a motion for a judgment of acquittal, which the court denied.
Counsel for the defendant stated at the hearing that he became aware of these records during his cross-examination of Puryear during the trial. The prosecutor argued that the defendant, through his counsel, had been aware of the victim’s inpatient treatment prior to the start of the trial.
The trial judge suffered a fractured hip on November 30, 2001.
At the May 8, 2002 hearing, the defendant filed a supplemental motion for a new trial on the ground that an individual had been “coaching” the victim during her testimony. The court denied the supplemental motion.
We also note that “[e] vidence that may first appear to be quite compelling when considered alone can lose its potency when weighed and measured with all the other evidence, both inculpatory and exculpatory. Implicit in the standard of materiality is the notion that the significance of any particular bit of evidence can only be determined by comparison to the rest.” (Internal quotation marks omitted.) State v. Shannon, 212 Conn. 387, 400, 563 A.2d 646, cert. denied, 493 U.S. 980, 110 S. Ct. 510, 107 L. Ed. 2d 512 (1989). Moreover, “not every inconsistency is exculpatory and therefore its nondisclosure does not constitute a Brady violation.” State v. Gradzik, 193 Conn. 35, 42, 475 A.2d 269 (1984).
The defendant specifically argues that his right to a fair trial “pursuant to the 14th Amendment to the United States constitution and Article First, § 8 of the Connecticut constitution” was violated. The defendant has not briefed the state constitutional issue separately and, therefore, we will confine our analysis to the federal constitution. See footnote 11; see also State
Yudofsky diagnosed the victim with post-traumatic stress disorder, and ordered both therapy and medication. Puryear testified on cross-examination that she had read this letter but did not rely on Yudofsky’s diagnosis. She also stated that she did not review Yudofsky’s file.
During closing argument, defense counsel stated that Puryear had agreed with the theory of false memory or pseudomemory and that there was debate regarding repressed sexual assaults. The prosecutor objected to that as a mischaracterization of Puryear’s testimony, and the court agreed that such a statement did not comport with Puryear’s testimony. Defense counsel argued that he recalled such testimony, but that the jury was free to review that portion of the testimony.
See part III.
We note that even if we were to apply the Williams factors to the comments we have determined were proper, we would conclude that the defendant was not deprived of a fair trial. “[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. . . . Therefore,
The state, in its brief, qualified its concession of misconduct. “The state concedes that this is an improper argument, although not necessarily because it constitutes improper vouching by the prosecutor. ... If, as in [State v. Toccaline, supra, 258 Conn. 542], the prosecutor could not directly question an expert witness as to her opinion regarding the credibility of the victim, the state assumes it is also improper for the prosecutor to suggest during argument, as here, that the experts implicitly credited the complainant’s allegation.”