*1 168 put counsel, the evidence forth the court
considering the defendant had “a long-standing determined thirty addiction” and that “after about months spending okay years.” did for a few The jail, [the defendant] finally court concluded that the defendant would have jail if better chance of rehabilitation sentenced to A probation. rather than review of the record shows that properly court considered whether the beneficial aspects of probation being and, therefore, were served did not abuse its discretion the defendant’s revoking probation portion the unexecuted reinstating defendant’s sentence. original are affirmed. judgments
In opinion this the other concurred. judges STATE OF CONNECTICUT v. JEFFREY B. WILLIAMS
(AC 26808) Harper, Lavine, Rogers and Js. App. 656, 660, 1159, denied,
Conn. 274 A.2d cert. Conn. 876 A.2d (2005). *2 officially released July 3, February
Argued defender, with Kouros, special public George G. Reeve, A. Michael brief, were Richard whom, on Oppenheimer, appel- for the Cyd O. O. Sheehan lant (defendant). attorney, state’s senior assistant
Timothy Sugrue, J. Dearington, were Michael whom, brief, with on the Clark, senior assistant attorney, and James G. state’s attorney, appellee (state). for the state’s
Opinion
LAVINE,
defendant, Jeffrey
J. The
B. Williams, thirty-five years
sentenced to
in prison
after a
found
him
of two
guilty
counts of sexual assault in the third
degree in violation of General Statutes
53a-72a (a)
§
(1),
injury
seven counts of risk of
to a
child
violation
of General Statutes
(Rev.
1997 and
53-21
1999) §§
(1)
(2), and three counts of sexual
assault
first
in violation of
degree
General Statutes
53a-70 (a)
§
. On
(2)
appeal, the defendant claims that (1) pattern
prosecutorial
misconduct
the trial
throughout
denied
him
process
the constitutional
to due
rights
and a fair
*3
trial,1
(2)
and
the trial court denied him the constitu-
tional
right
counsel
his motion for
denying
new
counsel. We affirm the
judgment
trial court.
jury reasonably
could have found the following
facts on
presented.
the basis of the evidence
Between
of
spring
mid-October, 1999,
1997 and
the victim2
and her three
sisters lived with
younger
mother,
their
who was the defendant’s girlfriend, her uncle and the
defendant at various
city
residences
in the
of New
Haven. The
approximately
years
victim was
eight
old
when the defendant
to abuse her.
began
The defendant
variety
beat her about once a week for a
of reasons.
In November, 1997, the defendant knocked the victim
floor,
spiral
a
fracture
her
causing
left humerus.
The victim was taken to a hospital, but her mother
instructed her and her
injury
sisters to attribute the
1
opinion
prepared
publication
being
Supreme
This
for
when our
Fauci,
Court rendered its decision in
State
At the defendant night, he told her to rub his back.3 take her to his room where *4 would turn Initially, lay the defendant face down but body. The instruct the victim to rub his lower over and placed hand and it on his defendant took the victim’s shorts and then inside. penis, at first outside of his boxer beyond back- progressed The defendant’s sexual abuse penis. touch his The defen- having rubs and the victim buttocks, vagina, thighs dant the victim’s began grope undeveloped occasions, chest. On three or four into the victim’s If penis vagina.4 defendant forced his employed night. at The victim’s mother was by depicting top drawing the victim the defendant on of her A colored placed penis vagina into evidence. in a bed and the defendant’s her depicted crying, and the defendant was shown with a smirk The victim was on his face.
the victim stop, asked the defendant he would tell her not to him tell what to do. The victim bled after rapes mother, first second and told her who period. told her she was her menstrual having Although reported the victim the abuse to her grandfather, he Consequently, refused believe her. the victim did not report the abuse for fear that no one continuing would eventually believe her. The victim disclosed the defen- implored dant’s sexual abuse to her cousin but her not anyone. to tell early
In victim, her sisters and mother moved to a in Waterbury, homeless shelter after which the victim and her sisters were removed from their custody by mother’s the department of children and families The victim was in a (department). placed foster home. While the victim and her foster mother were a television movie about sexual watching abuse, victim ran from the room Because the crying. victim emotion, was so overcome with her foster mother day subject waited until the next to discuss the with During conversation, her. the victim confided that the defendant and hurt raped private parts. had her her reported complaint The foster mother a depart- ment social worker.
Subsequently, the victim was interviewed a foren- specialist, pediatric prac- sic examined a nurse by detective, titioner and interviewed Michael Hunter. practitioner The nurse a furrow running found through hymen, injury the victim’s consistent with penile penetration. Hunter also interviewed the defendant and According defendant, recorded his statement. subsequent slept to his back he in a having surgery, hospital bed in the room where he one living awoke night penis. to find the victim his The defendant stroking mother, so informed the victim’s who beat the victim. *5 later, One month the defendant awoke and found again fondling penis. again reported the victim his He “a who administered to the victim’s mother incident the defendant acknowl- statement, In his whupping.” he but denied that spanked the victim having edged her arm or had sexual her, her, hit broke punched ever with her. intercourse and on Decem- charged defendant was arrested
The count form long 2002. The state filed twelve ber theory was that the victim of defense information. care avoid returned to the being lied about the abuse to of guilty mother. The found the defendant of her facts will be set forth all Additional charges alleged. necessary. as
I
claims that he was denied due
The defendant
first
pattern
prose-
law
a fair trial due to a
process of
misconduct
the trial. The defendant
throughout
cutorial
order
violated the court’s
(1)
claims that
evidence,
misconduct
elicited
uncharged
(2)
regarding
expert
from a state’s
witness
inadmissible evidence
Although
summation.
improperly during
(3) argued
miscon-
object
any
alleged
failed to
of the
defendant
unpreserved
pursuant
claims
duct, we will review his
A.2d
Stevenson,
563, 572-73,
v.
269 Conn.
to State
Williams,
523, 540,
and State
(2004),
Because we conclude that there
“[I]t inquiry, but, rather, our the fairness of the trial as a inquiry, whole. . . . We are mindful this throughout however, unique responsibilities prosecu- of the of the system. only A judicial tor in our is not court, every like other but is attorney, officer of the public officer, people also a high representing justice State, impartial who seeks for the as guilty By ... much as for the innocent. reason of his [or prosecutor] usually office, great exercises her] [the upon jurors. prosecutor’s] influence conduct and [The in the trial of cases in which human life or language liberty forceful, fair, are at stake should be but because represents public he which interest, [or she] demands no victim and asks no conviction through passion, prejudice aid of or resentment. If the accused be he should none the less be convicted guilty, [or she] only trial, strictly after a fair conducted according the sound and well-established rules which the laws . . . prescribe. prosecutorial misconduct, claims of analyzing
“[I]n step analytical process. we in a two The two engage steps separate are and distinct: whether misconduct (1) instance; occurred the first whether (2) deprived process misconduct a defendant of his due differently, to a fair trial. Put misconduct is mis- right conduct, of its ultimate effect on the regardless fairness trial; whether misconduct caused or contrib- process separate uted to a due violation is a and distinct question omitted; quotation . . . .” internal (Citations Stevenson, supra, State marks omitted.) the Williams factors to apply 571-72. We entire trial only in instances of misconduct to determine whether process due right been denied the defendant has a fair trial.5 responsibil- “the emphasized has Supreme
Our Court very least, object at counsel, ity of defense *7 at they as occur prosecutorial improprieties perceived the estab- . adhere to well trial, and . . continue[s] object failure to maxim that defense counsel’s lished was sug- when it made prosecutor’s argument to the was believe that it that counsel did not defense gests . . . case at the time. in the record of the light unfair of object may elect not to . . . defense counsel Moreover objection- she marginally he or deems arguments that he reasons, or she does namely, for because able tactical or he to it because jury’s want to the attention not draw . . . argument. she wants refute that or later object trial, at . failure Accordingly . . counsel’s fre- claim, not to a defendant’s while itself fatal chal- appellate on review that the will indicate quently of magnitude do not rise to the comments lenged omitted; empha- . .” . . (Citations constitutional error quotation Id., marks omitted.) in internal original; sis 576.
A
prosecutor
the
violated
The defendant claims that
Specifi-
on
misconduct.
ruling
uncharged
the court’s
claims
the
offered
cally, the defendant
that
prosecutorial
determining
was
as to
“In
whether
misconduct
so serious
Court],
conformity
process,
Supreme
in
with
to a
[our
amount
denial of due
Among
jurisdictions, has
them
courts in other
focused on several factors.
or
extent
was invited
defense conduct
are the
to which
misconduct
severity
frequency
argument . . .
of the
. . . the
of the
misconduct
centrality
. .
of
to the critical issues
misconduct
. the
the misconduct
adopted
strength
. .
. . . and the
the case
.
curative measures
Williams, supra,
strength
(Citations omitted.)
v.
State
of the state’s case.”
reviewing
apply
Conn. 540.
court must
the Williams factors to the
“[A]
trial,
way
no
whether the defendant
entire
there is
to determine
because
deprived
right to a fair
unless the misconduct is viewed in
of his
trial
supra,
Stevenson,
light
v.
269 Conn.
of the entire trial.” State
573.
allegedly
evidence that the defendant
had beaten one
despite order
of the victim’s sisters
court’s
that such
not be
the state’s case
during
evidence could
admitted
prejudicial
probative.
in-chief because it was more
than
The state
this claim is not reviewable
argues
evidentiary nature,
it is
not a
because
constitu
tional
of the label the
one, regardless
defendant atta
points
ches to it. The defendant
out, however,
appellate
evidentiary
courts of this state have held that
prose
violations of court order should be reviewed as
errors. See State
misconduct,
evidentiary
cutorial
not
Sherman,
App. 371,
38 Conn.
662 A.2d
384,
767, cert.
denied,
uncharged
alleg-
edly
arm,
broken the victim’s
because
state’s
having
provide
detail,
notice did not
sufficient
violation of
Acquin,
Sup. 152, 153,
“intends to offer evidence through younger the sister of the victim that she, too, is beaten the defendant with a paddle. wooden board or I don’t even know when. . . . [M]y impression is that he’s going say (Emphasis times.” Defense added.) counsel also argued that there was no nexus between the uncharged miscon- duct evidence contained in the state’s notice and the crimes to demonstrate that the alleged mis- uncharged part conduct was of a common scheme. The court sum- marized its understanding of defense counsel’s as the argument state’s failed to meet having speci- ficity requirement Acquin or the legal exceptions necessary admissibility to demonstrate the of the mis- conduct evidence.10The court ruled that the misconduct evidence concerning physically defendant’s having sexually abused the admissible, victim was but that evidence of his having physically abused the victim’s overly prejudicial sister was and could not to be intro- duced during the state’s case-in-chief.
After further discussion with the about nonspecific claims of sexual contact between the victim, defendant and the the court asked defense coun- sel if objections there were other legal he had to the uncharged respect misconduct with to the sister. responded Defense counsel that objection he had no to the sister’s about her testifying observations previously prosecuted, (3) defendant has been offenses offered to rebut good Acquin, supra, the defendant’s evidence of character.” State Sup. Conn. 153-54. responded part summary: Defense counsel to the court’s “[OJther situation, talking than the broken arm what we’re about his memorandum paddle, says, paddling as to other—it talks about the but it of numerous So, quite talking (Emphasis added.) times. I’m not sure what we’re about.” acknowledged discovery provided by Defense counsel also paddling-, got state mentioned “an incident of but then he’s in here where going paddled. being nothing even the sister is to talk about I see in her saying being paddled. statement where she’s she’s ... I still don’t think paddling premise younger really sister is a has a nexus to (Emphasis added.) show common scheme.” *10 objected the testimony. He victim’s the corroborate misconduct the defendant’s testifying about sister’s which the sister statement and noted a toward her with a paddled had her board. defendant stated that the paddling was evidence responded that prosecutor The the of the victim for welfare disregard the defendant’s and the her that sexually physically abusing and everyone injure to hold had an intent to defendant in fear. stating portion hearing, ended that of the
The court sister], evidence contained respect that “with to [the lie that was told to proof in the offer of she state’s or her direct by the about her observations defendant of abuse that was done her sister against observations all subject information, is of the that’s matter clearly independent either as grounds admissible on eyewitness or own an admission of defendant her respect beatings observations. With to the allegations may relevancy . . . that evidence have some as her respect family to a common scheme with to the or family. may intent There some relevance to abuse be I there, aspect testimony, but as to that of her find that overly it is . . . .” prejudicial The pertains defendant’s claim direct following by the victim’s examination sister:11 “Q. you anyone anyone Do recall told to tell being story particular who asked a about how the [victim’s] injured? arm had been
“A. Yes.
“Q. say And who asked what? my
“A. us to mom me told tell [The defendant] on bed and playing jumping were [the victim] younger opinion The to in victim has three sisters. sister referred this age victim. is sister next *11 around and swinging around, and that I had let her go and she fell off and landed on her arm.
“Q. And what was his manner when suggesting that you ought say that?
“A. He seemed angry, like, say if I didn’t it, I figured since he had many threatened us before, times if I didn’t say it, that I would get in trouble.
“Q. And when trouble, got general, what happened you? I
“A. got beatings.
“Q. By him?
“A. Yes.” The object defendant did not question to the or ask that the answer be stricken from the record and the jury instructed to disregard it. Our review of the tran- script does not reveal that any the court at time admon- prosecutor ished the presence outside the of the for having violated its order.
The state argues question did not violate the court’s order because specifically the order pertained to evidence that the defendant had beaten the victim’s sister with a paddle as he had beaten the victim and testimony elicited from the victim’s sister did not paddle. concern with a beatings After reviewing the supplemental state’s notice of uncharged misconduct evidence and the transcript entire on hearing uncharged misconduct evidence, we conclude that the position state’s simply is not hairsplitting. During hearing admissibility on the of the uncharged miscon- duct evidence, the word paddling was used repeatedly by both the defendant and the prosecutor, and the dis- paddling specifically cussion of was differentiated from physical the discussion of generally. violence could question one asked prosecutor Here, have violated would response that have elicited having defendant’s pertaining order court’s There paddle. with a victim’s sister beaten the intervene. failed to the court objection, and no paddle the word however, invoke not, did prosecutor may gone have question. Although in his say on *12 order, we cannot of the court’s edge deliberately he us that record before basis of the the intended to undermine he or that ruling violated the are of this case The facts authority of the court. the Sherman, supra, to those State similar App. 371.
B com- prosecutor claims Next, the defendant testimony from one by eliciting misconduct mitted ques- the ultimate (1) witnesses as to expert state’s the penile had intercourse defendant of whether the tion complaint the victim’s victim and whether (2) with the misconduct that agree We do not was credible. occurred.
1 called Judith case-in-chief, the state its During and foren- practitioner nurse Moskai-Kanz, pediatric a and child sexual abuse for child sic medical examiner part, on testified, as a witness. Moskai-Kanz abuse, scarring that on by the direct examination penile penetra- with hymen was consistent victim’s description of with the victim’s and consistent tion On cross- had forced on her.12 the defendant intercourse Moskai-Kanz, asked examination, defense counsel response examination, as follows in Moslcal-Kanztestified On direct prosecutor. questions from the being hymen caused consistent with scar on “Q. Is the [the victim’s] penis? penetration genii male al area of her that, yes. “A. It is consistent with description of the sexual intercourse with the “Q. And is it consistent you you her? gave interview that did with in the medical that [the victim] that, yes.” with “A. It is consistent other among things, questions a series of concerning opinion her and whether the furrow in the victim’s hymen could have been the result of something other than penile penetration, hypothetical including events not in evidence.13 questioned counsel Moskal-Kanz as follows on cross-exami Defense nation: got “Q. You information either from the child or her foster mother that abuse; she had been a victim of sexual am I correct? got victim], yes. “A. I information from [the you injury, “Q. And with that information and the came to a conclusion you direct; testified on am I correct?
“A. I don’t believe that I testified to a definitive conclusion that had to do with that. you So, concerning “Q. don’t have a definitive conclusion that? injury? Concerning “A. Concerning injury. “Q. opinion injury. “A. I have an opinion, you “Q. asking You have an but no conclusion? . . . What I’m is, injury vagina now, on the as it is if didn’t know that there was abuse, injury many sexual things; could occur from other am I correct? *13 many things, “A. Not other no. your opinion, you given “Q. In were not the information that a sexual [if] occurred, injury by anything else, abuse could this have been caused you’ve yes, I think answered that correct? by “A. It can be caused some limited scenarios. object? “Q. It would have to be an Well, you penis object? “A. no. Do consider a an Yes, object. “Q. that’s an Okay, yes, object. “A. it would be an penis only object injury? “Q. And a is the that could cause that just you “A. No. I didn’t know if wanted me to differentiate between the two. by object. you type objects “Q. It can be caused an Can indicate what of can cause that? object “A. right You would have to have an that would be of the size to penetration causing injuries cause a without other external because there any injuries. hymen. aren’t other It would have to be able to tear the you’re your basing opinions “Q:The information that a lot of on is the fact you sexually abused; that told that she had been [the victim] is that correct? No, “A. that’s incorrect. . . . you by sexually “Q. Were told that she was abused? [the victim] given specific by yes. “A. I victim], details of sexual contact [the asked examination, the On redirect which, appeal, on following questions, the Moskal-Kanz they improper because claims were defendant the question in the case: an to the ultimate for answer called “Q. Now, you were asked cross-examination] [on history that your opinion of to leave out repeatedly by victim], of you was taken [the “A. Yes.
“Q. you I want questions? series Do recall that you told about in. that put Everything it victim] [the your report, add that’s reflected sexual abuse injury hymen. you into observed of that what all of that as to opinion upon have based you an Do by penetration injury that was caused sexual whether penis? of her [the defendant’s] My opinion? “A. entire “Q. opinion. Your entire penis is of a My opinion that the insertion “A. entire which not result act would vagina purposeful into a is a that an accidental any extenuating injuries other injury so object cause, that insertion an would history, with that likely, especially coupled most is result penile penetration be [the victim] injuries are no extenuating described since there injury.”14 with accidental would be consistent you So, hymen was what how did scarred “Q. conclude that indicate, penis? *14 penis Again, me caused that laceration. “A. no one has asked if a penis a that “Q. Did cause laceration? you. you tell I tell is a laceration that is consistent "A. I cannot can there penetration. penile with you penis But don’t know whether a caused that? “Q. injury to have have been with child at the time of the tell “A.I would the by history given.” injury. only go you exact I can the reasonable the mode of immediately question prosecutor up following with the The followed Moskal-Kanz: you circumstances, you say extenuating And when what do mean? “Q. questions Because we conclude that the posed by prosecutor testimony clarified the given on cross- examination, we conclude that the challenged questions improper. were not During cross-examination, defense testimony counsel to elicit sought from Moskal-Kanz that the furrow in the hymen possibly victim’s could type have resulted from injury penile some other than penetration. On redirect examination, testimony to focus Moskal-Kanz’ sought on the evidence before the juiy, possibilities. not on He asked the wit- injury ness whether the victim’s was consistent with history the medical she victim, obtained from the which included facts that the defendant penis had forced his into the victim’s vagina and Moskal-Kanz’ medical question examination of the victim. The proper, as it jury’s focused the attention on the facts in evidence very and the purpose of Moskal-Kanz’ having examined the victim for evidence of sexual abuse.
“The
purpose
basic
of redirect examination is to
explain
enable a witness to
clarify
relevant matters
testimony
his
which have been weakened
or
obscured
his cross-examination.
. . .
scope
The
redirect examination, however,
is
subject
limited
matter of
quotation
cross-examination.”
(Internal
State
marks
omitted.)
Sanchez,
App. 382,
386,
185 to have is said on the issue discussion initiates who Even party. opposing to rebuttal the door opened ordinarily inad be would evidence the rebuttal though . may . . allow court grounds, on other missible quotation marks omitted; internal . . . .” (Citation it 749, 766, 854 Raynor, App. Conn. State 84 omitted.) 511 935, 861 A.2d denied, cert. A.2d name, the defendant’s use of the Except for the (2004). substan examination on redirect question prosecutor’s on he asked question different from tively was no testimony on redi Moskal-Kanz’ examination.15 direct with her substantively was consistent examination rect in the victim’s the furrow testimony, is, original See foot penile penetration. with was consistent hymen opinion. 12 this note prose- claim that the the defendant’s
We now focus on the vic- Moskal-Kanz about questioned improperly cutor by the unpersuaded are credibility. We tim’s claim. defendant’s counsel queried cross-examination,
On defense sexual veracity of allegations Moskal-Kanz about the abuse made children:
“Q. your field that believe And there are individuals abuse it has of sexual allegation when a child makes true; am I correct? to be you’re not correct.
“A. I think “Q. you Do believe when me this. Well, let ask it has to abuse, of sexual allegation a child makes an be true? exception prosecutor’s having particular falces The defendant question. Although asking it would have been better his name when
used say question name, using resulted the defendant’s we cannot to avoid person defendant, that he was the accused as the knew in harm to degree. assault in the first of sexual *16 “A. That’s not true.
“Q. So, up children can make allegations of sexual abuse; am I correct?
“A. very rare, certainly It’s but it could happen. “Q. Okay. very you It’s rare. How do find out—there ways of out whether a finding child is making [are] false am I correct?” allegation;
Defense counsel then asked Moskal-Kanz about the family dynamics influence have on a child’s allegations of sexual abuse. examination,
On redirect asked Moskal-Kanz the following questions to which the defendant now objects, although object he did not at trial:
“Q. you you Have interviewed children who felt were being completely not truthful about their allegations? “A. I have had cases where children have not been truthful about the allegations.
“Q. you And in those cases have had the kind of detail you provided were [the victim]? No, absolutely “A. not.
“Q. How did it compare?
“A. It can in either direction. go Most common direc- tion is that the exceptionally details are because vague there aren’t the details in existence to It remember. can ingo opposite try also extreme where a can child provide you perfect thereby with detail and there clear conflicts. [are]
“Q. in the Conflicts details?
“A. Yes. given any you details
“Q. such conflicts Did see you by victim]? [the “A.No. any exaggeration to have
“Q. that cause Or such any not? was true or whether this about concern No.”
“A. prosecutor’s concluded redirect-examination question recross-examination, On and answer. with this *17 questioned immediately Moskal-Kanz defense counsel allegations what factors of sexual abuse and false about ability sexual truthful about a to be influence child’s questions posed a series of also abuse. Defense counsel having a reason the victim’s Moskal-Kanzabout wanting with her foster mother lie, as to remain such returning where to mother’s home she than her rather younger and whether she had sisters, took of her care histoxy being a of untruthful. testimony (1)
“Generally, expert is if the admissible directly appli- special knowledge witness has a skill or (2) knowledge issue, that skill or cable to a matter in person, (3) average the testi- is not common to the mony jury helpful be to the court or in consider- would ing . . the issues. . credibility of a witness is
“The determination the of juxy. solely the ... It is the trier of function credibility witnesses and fact which of determines testimony. Expert weight . . . province to be accorded their permitted witnesses cannot be to invade the credibility particular juxy testifying of a as particular or the of a witness’ witness truthfulness may ordinarily expert not claim. ... An witness express opinion an be fact, an on ultimate which must Experts [how- . . . can the trier of fact. decided opinion give an on an ultimate issue ever,] sometimes intelligent findings, in order to make trier, where expert needs precise assistance on the question on which it pass. must . . .
“Additionally, in cases that involve
allegations
sex-
ual abuse of children, we have held that expert testi-
mony of reactions and behaviors common to victims
of sexual abuse is admissible.
.
.
. Such evidence
assists a
in its determination of the victim’s credibil-
ity by explaining
typical
consequences of the trauma
of sexual abuse on a child.
...
It is not permissible,
however, for
expert
an
to testify as to
opinion
his
or
whether a victim in a particular case is credible or
whether
particular
victim’s claims are truthful.
. . .
In this
we
regard,
expert
have found
testimony stating
that a victim’s behavior was generally consistent with
that of a victim
physical
of sexual or
abuse to be admis-
sible, and have distinguished such statements
from
expert testimony
opinion
providing
as to whether a
particular victim had suffered sexual abuse.”
fact
(Citations omitted; emphasis in original;
quota-
internal
tion marks omitted.) State C.,
Iban
Conn.
634-35,
On cross-examination of Moskal-Kanz, defense coun- sel sought impeach to the victim’s credibility. The redi- rect examination that the defendant challenges elicited testimony typical as to the behavior of a child victim of sexual abuse and the manner in which a forensic expert can determine whether a child is truthful. being Moskal-Kanz testified that there were no conflicts or exaggeration in the victim’s the recounting sexual abuse she endured. The asked Moskal-Kanz to compare the nature of the victim’s allegations to the common behaviors of children who claim to have been abused sexually, and whether she any had concerns about and conflicting exaggerated details that would
189 allegations. the truthfulness question her to lead redirect question on assessment, prosecutor’s the In our ambit of permissible within the falls examination C. Iban object to to the defendant failed note that again
We the defen reply brief, his question. In prosecutor’s the that state’s attempts argument deflect the dant could not object, not he counsel did because defense improper. doing so, In questions have considered the supra, Williams, relies on State the defendant “in a case of serious 523, proposition for that Conn. . . . the trial misconduct repeated prosecutorial and responsibility intervene, independent court has an objection or motion even in the absence an supporting than his Id., counsel.” 549. Rather defense mis prosecutor’s question constituted claim case, of this conduct, cited, the law under facts that no misconduct supports argument state’s not intervene to strike occurred because the court did prose testimony or to admonish the from the record quietly sit and withhold cutor. defendant cannot appeal objection an his on change strategy at trial required is because his trial strategy claim reversal 533, Conn. Duncan, App. 560, failed. See State v. 912, denied, 901 A.2d cert. A.2d 540 (2006). on transcript discloses that recross-
Furthermore, examination, questioned counsel Moskal-Kanz defense victim, imply in an effort to discredit length at allege motive to sexual that the victim had ulterior Moskal-Kanz had failed by the abuse defendant *19 whether the to determine investigation to conduct history lying. had a for or of Defense reputation victim opportunity had to vet Moskal-Kanz’ counsel a full of victim’s of sexual abuse allegations assessment the veracity. history and her for
c The defendant also claims prosecutor’s that the final argument constituted misconduct appealed because it passions of the jurors, vouched for the victim’s credibility and made reference to facts not in evidence. We do not agree prosecutor’s closing argument constituted misconduct.
The defendant prosecutor’s first claims that the clos- ing argument improperly appealed to passions the of jury. the We disagree.
a The transcript reveals that before final argument, the court jury, part: instructed the “And the statements lawyers, the I presume they while will helpful be the jury, you and I ask to listen to them carefully, [they not evidence. already You’ve heard evidence, the are] you should not consider it as evidence. ifAnd what they say about the evidence your differs from recollec- tion of the evidence, your it’s recollection of the evi- dence that controls.” After greeting and thanking jury, prosecutor implored to visualize the victim as she was at the time the abuse occurred and not as person who testified before them. commenced his argument by stating: you “I want your to close eyes, at least figuratively, and I you want to see I’m victim], but not talking about [the who was here at sitting age fifteen in front [victim] you poised brave young woman, who testified in this court last Thursday. I want picture skinny girl little that she was at seven eight. At six, she weighed fifty-five pounds. When she was eleven, she ninety-five weighted pounds. She was under four feet tall when she only was six and foot, four eight [inches when she was eleven. A shy, quiet, tired girl as tall] *20 in you. learning A still told child principal] school [her defendant the child who this through play. That’s school this child whose arm up constantly. That’s the beat who he chipped, teeth he broke, whose defendant mis- nothing in the or for her sisters’ punched face for up way he wanted didn’t clean the deeds or because she up That’s who the defendant her to. the child [woke] in her do, and to night in the middle of the forced who nasty thing. his That’s the child words, to things on undeveloped chest, her defendant touched on the child, age the who at on And that’s vagina, legs. her her have with forced to intercourse nine, this defendant pictures. special That’s the child in these him on his bed. the to do is think about thing you A second I want to victim], For that’s years ago. That’s year eight 1997. [the you consider the evidence half her lifetime. While you keep that testimony heard, and that this case the in mind.”16 prosecutor’s words argued
The defendant has jurors because appeal passions were an being coming as brave in they portrayed the victim at small, helpless to weak and testify before them abuse. The claims the time of the defendant’s defendant summations, judge Next, “Now, during argued: and the again, lawyers going at will do so are has mentioned this some level and you you facts, going to about the law. talk to about and we’re talk to already here, you Now, you fact are. The know that we aren’t the finders upon case are the evidence on that table and the evidence facts this based say something you you got what think from witnesses. And if we that isn’t lawyers are, you right, wrong. people are are the facts who we’re any only is the have secret here because information don’t information So, you say you if we exact information that have. shouldn’t think that you something that that’s we have some that find to be inaccurate because you knowledge you gets that have. It’s that to make that determi secret don’t know, nation, say, you argument we I submit but we can’t unless make use, you phrase generally I submit the facts are that’s a that we this and Okay. you you going out will these facts exist. I’m to leave find that that, you put part. big Just I submit to will find’ chunk ‘the every quicker.” we can finish a little that in front of sentence so that this that such language jurors encouraged sympathize *21 victim, with the to disgust and, feel toward him because child, she was a to find her credible. prosecutor may appeal not to the emotions, pas
“[A] prejudices sions and of jurors. the . . . When pros the appeals emotions, ecutor he invites the to decide case, the appraisal not to a rational according of the evidence, but on the powerful basis of and irrelevant likely factors which are appraisal. to skew that . . . Therefore, prosecutor a may the argue state’s case forcefully, such must argument be fair and based [but] on facts in evidence and the reasonable inferences to be drawn (Internal quotation therefrom.” marks omitted.) State v. Ceballos, 266 Conn. 394, 832 A.2d (2003).
The defendant would rely have us on Ceballos to portion conclude that this prosecutor’s of the initial closing argument constituted misconduct because it appear made the victim eyes to be brave in the jury. prosecutor’s The argument Ceballos is distin- guishable. In that case, prosecutor the used the word courage respect twice with to the victim’s coming into court testify against defendant, the which our Supreme Court concluded was an inappropriate appeal jurors’ to the Id., emotions. 396.
In the us, prosecutor case before painted a verbal picture of the victim at the time of the alleged crimes point jurors out to the they that the victim saw at trial physically years different eight ago. The also recounted the evidence of abuse the victim had suffered because of the defendant. Indeed, in Ceballos, Supreme our prosecutor’s Court found that the graphic portrayal of that family victim’s unfortunate circum- stances was misconduct; not even though painted it sympathetic the victim in a light, it focused on the opportunity defendant’s to abuse. The defendant here objects prosecutor’s also having used the word disgust of feeling times it created a child seven because answer that is that jury. in members and ten ages of eight was a between victim child sexually. physically her the defendant abused when this remarks in prosecutor’s opening Although trial, it presented at predicated on evidence were case his prosecutor made had the have been better would opinion; footnote 16 of this remarks; see qualifying picture of the victim painting before, after, rather than State abused See also had her. at the time defendant attorney Santiago, (“state’s supra, rhetorical put straightjacket not be in the should *22 emphasiz- passive voice, continually or always using the you I that this is he is submit to simply saying that ing quota- the shows, the or like” what evidence [internal Nevertheless, do not conclude marks we omitted]). tion was misconduct. his failure do so that
b
made
prosecutor
that
The defendant also claims
the
Sep-
to the terrorist attacks of
improper
reference
event
11, 2001,
was irrelevant
tember
because
prosecutor argued,
the facts in this case. The
“[w]hen
I
about,
you think
‘do I remember the statement
everybody
I would
here remembers
guess
gave’;
had
plane
were
first heard that a
they
they
where
when
you
do
York,
into the
Towers New
but
crashed
Twin
first
had
remember the details of the
conversations
somebody
that?”
with
about
often have a
rough
closing arguments
“[B]ecause
be
leeway
some
must
quality
them,
tumble
about
arguments
afforded to the advocates in offering
jury,
jury
argument.
addressing
in final
[c]ounsel
[I]n
as
allowed
latitude in argument,
must be
a generous
can-
limits of
fair comment
legitimate argument
line,
rule and
and some-
precisely
not be determined
the zeal
in the
must be
for
of counsel
thing
allowed
argument.
prose
heat of
. . . Nevertheless, [w]hile a
may argue
forcefully,
argu
cutor
the state’s case
such
upon
ment
fair
must be
and based
the facts in evidence
and the reasonable inferences to be drawn therefrom.”
quotation
(Internal
omitted.)
marks
State v. Necaise,
App. 214, 229-30,
97 Conn.
The defendant also claims that
credibility.
agree.
vouched for the victim’s
We do not
following portions
The defendant cites the
prosecutor’s argument
support
“During
his claim.
you agreed
selection, each of
with the obvious
*23
statement that crimes are often committed in secret
you
where there aren’t a lot of witnesses, but wouldn’t
expect that to be even more true of child abuse cases?
only
you
give
In
case,
this
. . . the victim can
all the
details of what this defendant did to her.”18The defen-
argues
dant
that the statement
the
is
17
they
It is not uncommon for individuals to discuss where
were when
tragic
memory occurred,
sinking
a
in
event
our collective
whether it be the
Titanic,
bombing
Harbor,
the
of Pearl
the assassination of
F.
John
Kennedy,
Challenger explosion
September 11,
or
2001.
prosecutor’s
In order to consider the defendant’s claims related to the
argument,
language
improper
we review the
the defendant claims is
in the
Warholic,
context in which it was used. See State v.
278 Conn.
364-65
nn.4-5,
(2006);
Robinson,
711, 746,
person independent thing,’ thing be true this doesn’t make this unless there’s any part lawyers it evidence of it that was said. That’s don’t have asked, question question was, secret information. The can be but the ‘do you saying said, saying remember T don’t it?’ And she remember it’ you very her, clearly “She also told that she remembers what he did to you although what that man did to her. did tell that she remember She doesn’t years ago, she Hunter the exact words she used did tell the truth to you Kelley, anything contrary didn’t hear from either of them. you about, gave’; When think I I I would ‘do remember statement that everybody they guess they here remembers where were when first plane York, had Twin do heard that a crashed into the Towers in New but you some- remember details of the first few conversations had with *24 necessarily body event, that? You traumatic about remember the but not exactly you incredibly victim], describing you said. what For she’s [the you exactly telling events and doesn’t what she traumatic she remember it, you she and them said about but remembers the events could tell about tantamount that because the saying victim came for- bravely testified, necessarily ward and she was truthful. prosecutor repeated defendant also claims that the that theme when he argued, you, did tell although “[s]he she doesn’t remember the exact words that she used years she did tell the truth to Hunter and ago, [Sharon] Kelley forensic at a children’s psychologist [a clinic] you and didn’t hear anything contrary from either of them.”19 The defendant argues because Hunter Kelley qualified were highly investigators of child they abuse, obviously sexual believed the victim’s alle- gations against Furthermore, the defendant. because permitted veracity witnesses are not to comment on the testimony, of a witness’ there was no sup- evidence to port prosecutor’s argument. parameters advocacy
“The
of the term zealous
are
. . .
prosecutor may
express
well settled. The
not
his
opinion, directly
indirectly,
credibility
own
or
as to the
. . .
prosecutor express
of the witnesses.
Nor should a
opinion, directly
his
indirectly,
or
as to the
of the
guilt
expressions
personal
defendant.
. . . Such
opinion
are a form of unsworn and unchecked testimony, and
particularly
jury
are
difficult for the
because
ignore
prosecutor’s
.
.
special position.
Moreover,
.
because the
is aware that
pre-
has
pared
presented
may
the case and consequently,
have access to matters
...
likely
not
evidence
it is
to infer that
precipitated
personal
such matters
opinions.”
quotation
(Internal
marks
State
omitted.)
Warholic,
354, 363,
Our may Court has held that “the state argue that its credibly, witnesses testified if such an argument simply you here. There is no evidence in this case that should not believe you victim], and heard her and saw her.” [the videotaped Hunter interviewed the victim and the victim’s interview Kelley, psychologist with the forensic to whom the victim was referred department. *25 evi- drawn from the inferences is based on reasonable are deciding cases, in addition, jurors, ... In dence. knowl- matters of common lay aside expected not but experiences, or their own observations edge to arrive presented to the facts as rather, apply them . . . There- correct conclusion. at an intelligent appeal to a entirely proper for counsel fore, it is (Citations in remarks.” jury’s closing common sense omitted.) Id., marks 365. omitted; quotation internal record, our review of the we see On the basis of was prosecutor in argument merit the state’s cross-exami- portion that of the defendant’s addressing attempted nation of the victim which the defendant specific about the asking language to discredit her had her interviews with Hunter and during she used testimony from her at trial. The Kelley, which varied vic- prosecutor examination, noted that on redirect exactly was to remember tim testified that she unable what she said the interviews but that she did during Kelley truth, tell Hunter and as best she could. On appeal, the state that the defendant was unable argues impeach credibility during the victim’s his cross- Kelley testimony examination of and Hunter. Their not inconsistent with the victim’s version of the defen- dant’s abuse. expressed prosecutor couldhave toe him-
Mtoimgh his say argu- that precision, we cannot with greater self . . . are mindful misconduct. constituted ment “[W]e . are . . seldom of counsel arguments closing event; improvi- before the in toto carefully constructed imperfect and syntax left results frequently sation While these crystal general clear. less than meaning miscon- way justify prosecutorial in no observations not lightly should court duct, they suggest do remark ambiguous intends infer that a jury, sitting or that a meaning damaging to have its most meaning will draw that exhortation, through lengthy plethora damaging interpretations.” from the of less marks (Internal quotation omitted.) Id., 368. *26 respect prose- The defendant’s final claim with to the cutor’s is that he made reference to closing argument disagree. facts not in evidence. We prosecutor his final During argument, stated: possibly “You know from the evidence there could be repetitive more because of the nature of the charges victim], they defendant’s behavior but against [the they’re therefore, aren’t there. And not something proof, have to consider in terms of nor do we prove beyond have to them a reasonable doubt.” The prosecutor’s argument proper jury was because the heard evidence of the defendant’s broken the having humerus, victim’s other acts of violence among against victim, but that misconduct was not included in the information because statute of limitations had expired opinion. that crime. See footnote 7 of this on prosecutor merely The explaining prove beyond the state did not have to a reasonable possible alleged doubt crimes that were not the infor- reason, mation. For this the defendant’s claim fails. we do not agree Because commit- misconduct, ted there is no need to undertake a due Williams, supra, to State analysis process pursuant 540, as, in the absence of fortiori, miscon- process occurred, duct no such due violation has and deprived the defendant was not of a fair trial.
II improperly The defendant also claims that the court multiple requests denied his motion and to dismiss his special public second defender. The defendant’s motion requests and to dismiss counsel were filed at different by different courts, Damiani, J., times and considered the rulings distinguish he does not Devlin, J., and and however, that both claims, appeal. He of the courts on to counsel right him the constitutional courts denied between him of interest was a conflict because there thus he was trust, not whom he did counsel, at critical himself from the courtroom forced to absent prejudice resulted in which proceedings, stages abused its that either court agree him.20We do not motions and the defendant’s denying discretion prejudiced he was counsel and that requests to dismiss rulings. the courts’ predate claim the defendant’s underlying facts Fasano, J., 2004, court, On March the trial. special motion to dismiss the defendant’s granted him in favor representing who had been defender public *27 filed another motion The defendant private counsel.21 on the basis retained counsel privately to dismiss his attorney-client relationship.22 of the of a breakdown 15, motion on November Judge granted Damiani funds to was without Because the defendant 2004. defender, special public counsel, retain new a second him. appointed represent to Moscowitz, L. Michael 20 right Although a constitutional that he was denied the defendant claims counsel, he relies on the state or federal has failed to state whether to he in his relied on the federal constitution Because the defendant constitution. pursuant counsel, pro we will review the claim se motion to dismiss federal constitution. special public defender, the defendant his motion to dismiss his In my jail Donald Dakers is for months. stated: “I have been [fourteen] please attorney right have Mr. Donald Dakers remove[d] now. I would like to my many things my do so on I have Mr. Dakers to from case. ask[ed] my help anything man to me. This is life this But he has not done behalf. playing is with.” Dakers, in filed a motion for file discloses that Our review of the particulars, the defendant’s bond and motions a bill of a motion to reduce statements, identification, suppress a motion to disclose evidence and dismiss, uncharged in addition to a number of misconduct and a motion to motions on the defendant’s behalf. other privately counsel, retained the defendant In his motion to dismiss his only that, anything I like I ask him to. Not don’t stated: “Has not done this man.” pro the defendant a se later,
About six weeks filed January 10, 2005, motion to dismiss Moscowitz. On Damiani the motion. The defendant Judge considered that Moscowitz had not visited represented to the court him, telephone him, did not return his calls and lied every they and that the two time talked tele- argued stated, ready “I’m phone. getting go defendant nobody trial. I don’t want me like that.”23 representing unrespon- Moscowitz denied the that he was allegations defendant, informing sive to the the court that he had spoken every to the defendant time he called and that in the for the length he visited the defendant courthouse of time the defendant desired. Damiani denied Judge the defendant had had three motion, stating lawyers explained able and to the defendant that he pick choose, may cannot even he not be though happy personality lawyers represent- with him. ing represented Moscowitz
Following ruling, the court’s perplexed quite to the court that he was and “not sure up prop- with that he’s not where comes [the defendant] effectively erly represented. properly He has been a represented.” requested He court order com- petency defendant, pursuant evaluation of the to Gen- Judge eral Statutes 54-56d. Damiani ordered § competency evaluation of the defendant.
Subsequent receipt competency report to the report, parties, at a hearing and on the basis of the February 8, 2005, stipulated on that the defendant was The defendant had written to competent to stand trial. court, that Moscowitz had failed to be fair claiming speedy January 5, a a trial 2005. In Moscowitz filed motion for on November, 2004, following pleadings Moscowitz filed the motions and on discovery production, behalf of the defendant: motion for motion for particulars, limine, suppress, suppress a bill of motion motion to motion to identification, uncharged motion for notice of misconduct and motion to suppress evidence. second Despite perform obligations. and to basic dismissed, Judge Moscowitz told request that he be represent he could the defendant. Damiani that and ordered court denied the motion to dismiss week.24 following selection to begin without incident for several Jury proceeded selection Mos- discharge but the defendant to days, again sought March a letter to Devlin on submitting Judge cowitz him had failed to 3, 2005, claiming give that Moscowitz rep- records. Moscowitz certain of the victim’s medical copied everything that he had Judge resented to Devlin turned it over that he had received from the state and complained The defendant further defendant. way he that he did not like Moscowitz’ attitude or the that he spoke to him.25 Devlin told the defendant Judge disappointment but that he regretted the defendant’s threw discharge saw no basis to counsel. The defendant repre- not to tantrum, going a stated that Moscowitz was him be the courtroom. sent and asked to taken from not in his The court advised the defendant that it was later interest to be absent from the courtroom and day. recessed court for the On 4, 2005, apologized Judge March the defendant to private Devlin and told him that he wanted to retain 24 asking private dismissed, In that his counsel be the defendant claimed private speedy trial as the counsel had failed to file a motion for a speedy requested. a trial motion on the defendant had Moscowitz filed defendant’s behalf. represented “[m]y to the court that life is at stake here. The defendant know, Okay. going represent You I do not like this man. He’s not to me. you up get here and talk that BS in There’s more to this than what see. He you project you all, image he has for but when he front of because day. me, give facing get with this man don’t me the time of And I’m too lawyer this. And this is the second time I’m much time to be with [like] get this, keep asking him. I don’t want to like but I the court to remove playing personalities. telling this man he’s two One with the court keep up going putting I’m with this I’m one with me. not because not provoke something going regret got going to let him me to do I’m later. I stay away from him. Please take me out of here.” *29 yet representation. such
counsel but had not secured courtroom, despite to leave the The defendant elected additional from the court that it was not in warnings Jury continued, however, his interest to do so. selection in the defendant’s absence. presentation of the state’s evidence on began 31,2005. Midway day,
March the next the defen- through dant told Devlin that Moscowitz was not Judge showing proper respect. complained him the The defendant also put that Moscowitz would not on the evidence he presented. explained wanted The court to the defendant position in the better to make deci- counsel was presentation sions about the of the defense. Again, leave the but courtroom, defendant wanted to the court persuaded stay. him to After the had been excused the defendant asked court day, again for sixty day him replace grant Moscowitz and to a continu- lawyer. complained ance to find another The defendant that there had been breakdown communication him Moscowitz, between that there was no trust and that he was uncomfortable under the circumstances. Moscowitz told the court that he had met with the lockup, defendant in the often asked for a short recess frequently to consult with the defendant and consulted with the defendant cross-examination. during complained
The defendant also to the court that he telephone brother, had been unable to his who had his money, request represent that he hire counsel to him. The court instructed the marshals to let the defendant telephone make a call to his brother before the defen- day. dant left the courthouse April 5,2005, On the defendant that Moscowitz agreed represent day pre- could continue to him that and was sent for all of the After the state rested proceedings. case, its the defendant consulted with Moscowitz and testify in elected not to his defense. Moscowitz then
203 were defendant he and the the court that informed of character presentation over the dispute a having with Moscowitz’ not agree The defendant did witnesses. The court any witnesses. not to call character decision with the Moscowitz to consult a recess for granted asked the court defense counsel Thereafter, defendant. defen- proof by the to make an offer of permission for could deter- the court Daryl Dixon, so that son, dant’s Dixon testified scope mine the of cross-examination. be defendant did not know the personally that he out- After Dixon testified sexually physically. or abusive ruled that the jury, the court presence side specific acts of him about could cross-examine state char- related to the defendant’s misconduct uncharged The defendant then physical abuse. acter for sexual jury. The testily Dixon before the decided not to have testimony of one witness presented the defendant and rested.26 jury jury had entered the day, just
The next after the instructions, the defendant box to receive the court’s jury up approached the rail of the box and stood put on his permitted exclaimed that he had not been permitted and that he had not been to retain evidence private immediately counsel. Devlin excused the Judge contempt. and found the defendant to be in responded by defendant the court that he excoriating fairly had not been treated and that his had been rights violated.27 The defendant stated that he had evidence prove his innocence that he had to Moscowitz given Hommel, pediatric physician, emergency Mark a board certified room attending physician Hospital was the at Yale-New Haven at the time the ray victim was treated for a broken humerus. On the basis of the X of the depicted spiral fracture, suspect Hommel did not victim's humerus physical abuse, as both the victim and her mother indicated that the victim injury sustained her when she fell off a bed. Hommel stated nature injury was consistent with and her mother had stated. what victim try part up The defendant stated in to the court: “Don’t sit there and my anything to act like did fair on behalf.” had it him. but that Moscowitz returned The court he be quiet informed the defendant had to unless from he wanted to be removed the courtroom. The court asked the defendant to assure it that he would The defendant told properly. conduct himself the court that he would not assure it of The court then anything. instructed the marshals to escort the defendant from *31 removed, the courtroom. After the defendant was the jury jurors court recalled the and instructed the to disre- and it the defendant’s outburst that was not evi- gard explained dence. The court also the defendant present during charge would not be and that the him. jury against was not to hold that fact See Practice Book 42-47. § deliberating,
While the
the court recalled
if
present
the defendant and asked him he wanted to be
verbally
in
Mos-
Again,
court.
the defendant
attacked
represented
cowitz and the manner in which he had
him. The defendant claimed that there was a conflict
present
of interest and that Moscowitz would not
requested by
defendant or call witnesses
evidence
on his behalf. The defendant
then walked out of the
apolo-
Later,
reappeared
courtroom.
the defendant
The court vacated
to the court for his outbursts.
gized
contempt.
jury’s
its
of
the return of the
finding
During
defendant arose from counsel
walked
verdict,
table,
a
area.
holding
from the courtroom and into
Supreme
definitively
“The United States
Court has
requires that the accused have
process
held that due
. . .
right
the assistance of counsel for his defense.
many
if
be,
cases,
to be heard would
in
of little avail
comprehend
it did not
to be heard
counsel.”
right
quotation
internal
marks
omitted;
omitted.)
(Citation
State 522,
Jenkins,
App. 515,
1200,
70 Conn.
800 A.2d
denied,
cert.
“While a criminal repre- be of freedom to implies degree a by counsel . . . this choice defendant’s sented counsel [the] an unlimited not a defendant grant does guarantee counsel on the eve of to obtain alternate opportunity responsibility . . the court has Although trial. . carefully all substantial and to evaluate inquire into . counsel . . court-appointed complaints concerning *32 within the court’s sound inquiry extent of such lies has the defendant given exercise of discretion. After it to inform it of his or her com- adequate opportunity an determining has broad discretion in plaints, the court of appointment warrant whether circumstances existing or the dismissal of the defendant’s new counsel marks quotation internal omitted; counsel.” (Citations 522-23. Id., omitted.) abused its dis whether the trial court evaluating
“In
motion for substitu
defendant’s
denying
cretion
[the]
should consider
counsel,
appellate
tion
court]
[an
motion;
timeliness of the
factors:
following
[t]he
inquiiy into the defendant’s
adequacy of the court’s
attomey/client conflict was
and whether the
complaint;
of communica
had resulted in total lack
so
that it
great
v.
United States
adequate
an
defense.”
preventing
tion
487
105,
denied,
F.2d
108
cert.
Gallop,
(4th Cir.),
On
2858,
(1988).
On the of our review of the we cannot basis or Judge conclude that either Damiani Devlin Judge denying abused his discretion in the defendant’s requests space or for new counsel. Within the motions defendant had been approximately months, nine counsel, one of his own represented three different appointed represent Moscowitz was choosing. November, 2004, and not six weeks later defendant asked for new counsel. At a hearing the defendant claimed, basically, the defendant Judge Damiani, before to him. Moscowitz unresponsive that Moscowitz was contrary. represented facts to the The defendant’s claim telephone is that Moscowitz did not return his calls representation belied his that he and Moscowitz every they spoke telephone. on the Judge time argued the defendant that he was properly Damiani informed by counsel, but not the coun representation entitled to Iles, sel of his choice. See United States F.2d choice, 1122, 1130 Cir. to counsel of (6th 1990) (“[R]ight right ... An unlike the to counsel is not absolute. a particular defendant has no to have indigent right *33 him must demonstrate attorney represent and therefore to warrant substitution of counsel.” ‘good cause’ Vega, see also State v. [Emphasis 259 original.]); 1221 with 374, 391, (disagreement Conn. 788 A.2d attor ney’s and tactical decisions not good cause), strategic L. Ed. 2d denied, 152, cert. 537 U.S. 123 S. Ct. 154 Smith, State App. 809, 819, v. 73 Conn. 809 (2002); 56 merely disapproved A.2d 1146 (2002) (defendant
207 part grounds, on other rev’d tactics), trial counsel’s 171 (2005). A.2d 204, 869 Damiani Judge implies brief, the defendant In his his motions inquiry beyond further have made should the defendant’s nature of counsel. The to dismiss form of let- were in the Moscowitz to dismiss motions known made the defendant in which ters to the court counsel. unhappiness with of his degree extent and if there the defendant the court asked time, At one merely the defendant say, more he wanted were previously he stand what that he would responded was not therefore inquiry The court’s represented. had compre- appeared indeed Damiani inadequate. Judge dissatisfaction. nature of the defendant’s hend the dismiss a motion to law makes clear that The case trial without on the eve of not to be granted counsel is “A exceptional circumstances. the demonstration requires support of counsel request for substitution not be used to achieve may reason, a substantial A.2d 75, 83, Conn. 519 Drakeford, delay.” State reasons the defen- case, one of the In this (1987). private was private his counsel discharge dant sought trial, as speedy a motion for a failure to file counsel’s seq. Book 43-39 et § wanted. See Practice the defendant with speedy along trial filed a motion for Moscowitz behalf.28At the defendant’s other motions on numerous be that Moscowitz defendant first asked the time the Under pending. was speedy trial motion dismissed, had to the defendant case, of this the circumstances which is the eve thirty days, within to trial brought be reply brief, 43-41. In his See Practice Book § of trial. in his case selection contends the defendant first motion weeks after the did not start for six day period, thirty The Moscowitz was heard. dismiss filing speedy the defendant’s 1rial motion alone undercuts unresponsive to the defendant’s wishes. claim that Moscowitz *34 competency tolled eval- however, during uation.29 appears per- there to have been a clash of
Granted, Moscowitz, sonalities between the defendant and but represented Moscowitz to the court that he could con- the defendant. the defen- represent Although tinue to dant claimed that Moscowitz had not him given discovery materials, represented Moscowitz that he had discovery defendant, per- materials to the but given haps quickly not as as the defendant would have liked they photocopied. because had to be The defendant claims that there was a conflict of Moscowitz, interest between him and but he has not demonstrated what that conflict was other than to dis- days There were strategy. on trial the defen- agree permitted dant in the courtroom and his quietly sat represent counsel to him. Moscowitz brought Judge Devlin’s attention facts that he had consulted with the requested con- during defendant cross-examination presided tinuances to discuss trial at strategy. Having accuracy trial, the court was able to assess the of that As to evidence of the defen- representation. presenting character, dant’s Moscowitz called Dixon in order to from the court as to the extent of cross- ruling obtain permitted. would be After the examination the state elected not ruled, court the defendant and Moscowitz to call Dixon. any prejudice by
If sustained not being the defendant present during stages in the courtroom critical choice to himself. When it was his absent proceedings, he did not want to be present, he told the court that why him Judge explained Devlin it was his interest proceedings to remain. The court even recessed for day the remainder of the so that the defendant could only competency We can conclude that Moscowitz’ motion for a evalua tion was made in the best interest of the defendant. *35 was one other than the defendant
compose himself. No
just prior
jury
in front of the
for his behavior
responsible
supra,
v. Drakeford,
See State
charge.
to the court’s
The
was absent during
79.
defendant
Conn.
that he
not assure the court
because he would
charge
acceptable
behavior to
courtroom
would conform his
we conclude
foregoing reasons,
For all of the
decorum.
nor
abused
Judge
neither
Damiani
Devlin
Judge
that
motions
denying
discretion in
defendant’s
their
to dismiss Moscowitz.
requests
is affirmed.
judgment
HARPER, J., concurred.
opinion
In this
I
because
ROGERS, J.,
separately
write
concurring.
that some of the actions of the
I believe
B.
contests
Jeffrey Williams, now
defendant,
from
permissible
the line
conduct
separating
crossed
I
that those
nevertheless would conclude
impropriety.
not
in the defen-
of misconduct did
result
instances
fair trial
that reversal
deprived of a
such
being
dant’s
required.
conviction is
judgment
of the
of
prosecutor’s question
I believe that the
First,
happen
she got
sister as to what would
when
victim’s
trouble,
replied,
beatings,”
to
the sister
“I got
which
i.e.,
him?”
follow-up question, “By
prosecutor’s
affir
sister
in the
defendant, to which the
answered
disal
of the court’s earlier order
mative, were violations
of certain evidence
the introduction
lowing
prosecu
is well
misconduct. “It
settled
uncharged
.
court
. .
consti
disobedience of a trial
order
torial
Ortiz,
State v.
improper conduct.”
tutes
reading
A fair and realistic
(2006).
I also would conclude that certain prosecutor’s of the questions directed at Judith Moskal-Kanz, prac- a nurse titioner and forensic medical examiner who evaluated and treated the victim following reports her of abuse, were aimed at eliciting inappropriate testimony as to credibility the victim’s and an ultimate issue in the case and, therefore, improper. First, were the prosecutor asked Moskal-Kanz whether she had an opinion, on the basis of everything victim told her and on her injury observations of the hymen, the victim’s “as to injury whether that by penetration was caused sexual of her penis.” Moskal-Kanz replied [the defendant’s] injury that “the likely, especially is most coupled with history, that penile be the result of the penetration that described . . . .” Next, [the victim] 1 respect allegations beatings The court stated: “With to the of as to [the sister], know, may relevancy victim’s that evidence have some to a respect family family. common scheme with anor intent to abuse the may there, aspect testimony, There be some relevance but as to that of her overly prejudicial, I going find that it is and so I’m to exclude that evidence.”
211 any inconsisten- whether she saw asked Moskal-Kanz any abuse or report of victim’s of details cies in the any to have that “exaggeration cause[d] [Moskal-Kanz] true story] victim’s whether concern about [the in the questions to both replied . . . Moskal-Kanz .” negative. are the credibility determinations
It
is axiomatic
C.,
v. Iban
jury. See State
275
province
exclusive
witnesses
Expert
634,
(2005).
Similarly, C., supra, State Iban fact; issue of an ultimate *37 whether abuse has 634-35; such as sexual Conn., Although “expert testimony of reactions occurred. is common to victims of sexual abuse admis- behaviors testify sible,” impermissible expert it is “for an as opinion particular to his of whether a victim in a case are particular is credible or whether a victim’s claims Supreme 635. Court has “found Id., Thus, truthful.” our testimony expert that a behavior was stating victim’s with that of victim of sexual or generally consistent a admissible, to be physical distinguished abuse and [has] expert testimony such providing statements from victim had in opinion particular a as whether fact (Emphasis original.) Id.; suffered sexual abuse.” in see Freeney, also State v. 637 582, 592, 228 Conn. A.2d 1088 testimony between about the distinction (1994) (“[t]he opinion behavior of victims and an as to general whether the instant victim is telling truth is criti- cal”). Similarly, Supreme our approved Court has of expert testimony “merely stated that victim’s [a] injury was consistent with sexual abuse”; in (emphasis State C., supra, Iban original) 638-39; but “did not contain a definitive diagnosis child sexual abuse.” Id., 638.
I believe
portions
that the recited
of Moskal-Kanz’
testimony ran afoul of
principles
these
and, therefore,
questioning
testimony
which the
respon-
sive was improper. The opinion Moskal-Kanz offered
was more than a general assessment as to the consis-
tency
type
injury
suffered
the victim with
typically
those
found
sexual
victims;
abuse
it was
a conclusion as to the cause of the
injuries
victim’s
specifically, namely,
they
resulted from the acts of
the defendant that the victim had described.
cases
“[I]n
expert
which an
witness reaches a conclusion on the
part
ultimate issue in
upon
based
statements made
.
.
expert
victim
. the
necessarily
is
making
determination about the
credibility.”
victim’s
Id., 635-
36. Additionally, Moskal-Kanz’ testimony that the con-
sistency and lack of exaggeration in the victim’s account
prevented
of abuse
Moskal-Kanz from having concerns
about the truth of that account amounted to an indirect
opinion
particular
that this
victim was credible. See
v. Thompson,
State
440, 455,
213 misconduct, instances of foregoing conclude context of the entire and viewed in the together taken violation process a due did not amount to proceedings, Although a fair trial. the deprived the defendant of that apparently to the victim’s sister prosecutor’s questions were, posed those to Moskal-Kanz spontaneous, were inquiry by majority, responsive to lines of as noted the in pursued by counsel.3 Viewed the previously defense the extensive and, particular, of a trial lengthy context objectionable testimony by Moskal-Kanz, given posed by prosecutor, relating to questions although were events and case,4 the central issue of isolated of particularly severe.5 The failure defense counsel not prior give Indeed, prosecutor’s question to led to that Moskal-Kanz testimony injury, improper as the cause the victim’s defense counsel of posed questions premised assumption repeatedly already she on the testimony. response, given such In Moskal-Kanz indicated that she had colloquy presumed following had not reached the conclusion. The between Moskal-Kanz, counsel as well as that recounted in footnote 13 defense majority opinion, is illustrative: you by sexually Were she was abused? “Q. told [the victim] victim], yes. given specific “A. I was details sexual contact [the you information; “Q. And used that am I correct?
“A. it how? Used opinion. “Q. To come an my Involving opinion “A. on? injury. “Q.
“A. No. “Q, knowing without even that there had been looking injury at the Just you that, you contact, telling to the conclusion without her came sexual injury caused sexual contact? that that was state I to that conclusion.
“A. I didn’t came your you opinion, opinion opinion, to an based “Q. Your came injury alone? on the anyone asked if I’ve come here has me “A. I don’t believe that losing opinion, I’m on this.” so that’s where 4 contrast, questions sister were more collateral. victim’s In been framed on when such as the defendant’s have 5 Inote that claims misconduct, alleged prosecutorial but as appeal trial not as instances testimony pertaining improperly expert having to victims’ admitted courts they evidentiary credibility, and not constitutional nature. are deemed Carneiro, 806-807; Grenier, supra, See, e.g., v. Conn. State State *39 214 object any of the challenged is questioning notable
in this regard. See State v. Stevenson, 269
563,
Conn.
576,