State v. Alexander, 15584

• Decision Date: 01 September 1998
• Docket Number: No. 15584,15584
• Citation: 718 A.2d 66,50 Conn.App. 242
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Andrew ALEXANDER.

Page 66

718 A.2d 66

50 Conn.App. 242

STATE of Connecticut v. Andrew ALEXANDER.

No. 15584.

Appellate Court of Connecticut.

Argued March 16, 1998.

Decided Sept. 1, 1998.

Monte P. Radler, Senior Assistant Public Defender, for appellant (defendant).

James M. Ralls, Assistant State's Attorney, with whom, on the brief, were Eugene Callahan, State's Attorney, and Nancy Dolinsky, Assistant State's Attorney, for appellee (State).

Before FOTI, LAVERY and SPEAR, JJ.

LAVERY, Judge.

The defendant, Andrew Alexander, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the fourth degree in violation of General Statutes § 53a-73a ¹ and risk of injury to a child in violation of General Statutes § 53-21. ² On appeal, the defendant claims that the state's closing argument (1) impermissibly infringed on his constitutional right to be present during trial and (2) amounted to prosecutorial misconduct depriving the defendant of a fair trial. In addition, the defendant claims that the trial court improperly ruled that one of the defendant's witnesses failed to qualify as an expert, permitted the state's expert witness to vouch for the truthfulness of the victim, prevented the defendant from introducing extrinsic evidence regarding the victim's credibility, and imposed sex offender treatment as a special condition of probation in this case. We agree with the defendant that the state's closing argument violated his constitutional right to be present during trial and to a fair trial. and we do not address the remaining claims.

The jury reasonably could have found the following facts. At the time of trial, the victim, C, was twelve years old and in the seventh grade. The victim lived in Stamford with her mother, Kendra, a younger brother and twin sisters. The victim was in the second or third grade when she first met the defendant. The defendant was Kendra's boyfriend and the father of the victim's twin sisters. The defendant met Kendra in the fall, 1989. Kendra became pregnant by the defendant in the summer, 1990, and they agreed that the defendant would become involved as a father to their offspring. Because of his work schedule, the defendant maintained a residence in New York City. He resided with Kendra primarily on weekends after she became pregnant.

At first, the victim liked the defendant. He was nice to her, took her to the park, gave her money for ice cream and never punished or hit her. About the time the victim was eight, the defendant began to abuse her sexually. He would enter her bedroom at night when the room was dark and, if she was asleep, would touch her to awaken her. The defendant would get into her bed, take off her panties and put his finger into her vagina, which hurt, and felt like a knife cutting into her. When C would tell the defendant to stop, he complied. He would also push up her nightshirt and touch her chest as well.

In February, 1993, during school vacation when C was nine, she went to Massachusetts to visit her paternal grandmother. When her grandmother asked how the defendant was treating her, C said that the defendant did not treat her right and disclosed the abuse to her, saying that it had gone on since she was about eight. On her way back to Stamford, C told her father of the abuse.

On March 2, 1993, C was interviewed by Patricia Nelson of the Stamford Child Guidance Center. An audiotape was made of the interview and played for the jury. In the interview, C stated that the abuse began when she was eight, toward the end of the year. She said that the defendant had rubbed her vaginal area, but she was afraid that the defendant would be angry if she provided more detail and she did not want to get him in trouble. At trial, C explained that her testimony was different from her audiotape interview because "now that you get a chance to think about what happened, it all comes back to you. Most of it does." The victim also spoke about the abuse with Marie Williams, a social worker at the department of families and children (DCF).

At trial, the state called the victim's father, Officer Martin Treadway of the Stamford police department, Nelson, Williams, and the victim's grandmother primarily as constancy of accusation witnesses. The state also called Nelson, Williams, and Stephen Spitz, a psychologist and consultant for DCF, as expert witnesses. The defendant testified and denied ever abusing the victim. In addition, the defendant elicited character testimony from ten witnesses.

The jury returned a verdict of guilty on both counts. The trial court imposed a total effective sentence of five years, suspended after one year, with five years probation and special conditions. The court denied the defendant's motion to open the judgment and motion to correct sentence. This appeal followed.

The defendant claims that during the state's closing argument the state's attorney impermissibly infringed on his constitutional right to be present during trial, and that the closing argument amounted to prosecutorial misconduct depriving him of a fair trial. We will address each of these claims individually and, because we find them dispositive, we will not address the defendant's remaining four claims as it is not likely that they will arise during the new trial. The sentencing claim could arise only in the event of a conviction and we do not know what the outcome of the new trial will be.

"It is well recognized that the state's attorney '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. In discharging his most important duties, he deserves and receives in peculiar degree the support of the court and the respect of the citizens of the county. By reason of his office, he usually exercises great influence upon jurors. His conduct and language in the trial of cases in which human life or liberty are at stake should be forceful, but fair, because he represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice, or resentment. If the accused be guilty, he 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. While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury have no right to consider.' State v. Ferrone, 96 Conn. 160, 168-69, 113 A. 452 (1921)." (Emphasis added.) State v. Satchwell, 244 Conn. 547, 577, 710 A.2d 1348 (1998) (Katz, J., concurring).

I

The defendant's first claim arising from the state's closing argument and rebuttal argument concerns comments made by the state's attorney about the defendant's presence in the courtroom throughout the trial. Specifically, the defendant claims that the comments made by the state's attorney impermissibly infringed on his constitutional right to be present at trial.

In the state's closing argument to the jury, the prosecutor stated: "Who is best able to fabricate a complicated story designed to sway a jury? Your final decision must ultimately be based on whom you believe, the victim ... or the defendant, Andrew Alexander.... Now you may recall that all the witnesses were sequestered. And, that was so they couldn't hear what the other witnesses were saying so they couldn't tailor their testimony to each other's testimony. So that they couldn't contradict each other. But there was one witness who wasn't sequestered. There was one witness who heard everything. And, that was [the defendant], who has a built-in bias in the outcome of this case by virtue of the fact that he's the defendant." (Emphasis added.) In the state's rebuttal argument to the defendant's closing argument, the prosecutor stated: "When you consider the credibility of the defendant's testimony, keep in mind that, of all the witnesses here, he's the most obviously biased and interested one. He's the one who has the motive to distort the truth and fabricate the story. Think about it." (Emphasis added.)

The defendant did not object to the prosecutor's remarks during the prosecutor's closing argument or rebuttal argument but did object to the prosecutor's rebuttal argument after its conclusion and outside the presence of the jury. The defendant did not make the specific objection, however, that he raises on appeal. Thus, the defendant seeks review of this unpreserved claim under the doctrine articulated in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

Under Golding, a defendant can prevail on an unpreserved claim of constitutional error "only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness beyond a reasonable doubt." State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823. "The first two conditions are determinations of whether a defendant's claim will be reviewed, and the third condition involves a review of the claim itself." (Internal quotation marks omitted.) State v. Santos, 41 Conn.App. 361, 364, 675 A.2d 930, cert. denied, 237 Conn. 932, 677 A.2d 1374 (1996). The defendant's claim is reviewable because the record is adequate for review and the claim implicates the defendant's fundamental constitutional right to be present during his trial.

"It is well settled that a violation of constitutional magnitude may be established even though there has not been a complete...