State v. Barry A.

• Decision Date: 10 September 2013
• Docket Number: No. 33304.,33304.
• Citation: 76 A.3d 211,145 Conn.App. 582
• Parties: STATE of Connecticut v. BARRY A.
• Court: Connecticut Court of Appeals

145 Conn.App. 582

76 A.3d 211

STATE of Connecticut

v.BARRY A.^*

No. 33304.

Appellate Court of Connecticut.

Argued April 9, 2013.

Decided Sept. 10, 2013.

Hurbert J. Santos, with whom, on the brief, were Hope C. Seeley, Hartford, and Jessica M. Santos, for the appellant (defendant).

Marjorie Allen Dauster, senior assistant state's attorney, with whom, on the brief, were Patricia M. Froehlich, state's attorney, and Mark A. Stabile, supervisory assistant state's attorney, for the appellee (state).

DiPENTIMA, C.J., and GRUENDEL and ALVORD, Js.

GRUENDEL, J.

The defendant, Barry A., appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the second degree in violation of General Statutes § 53a–71 (a)(1), two counts of sexual assault in the second degree in violation of § 53–71(a)(4), one count of sexual assault in the fourth degree in violation of General Statutes § 53a–73 (a)(1)(B), one count of sexual assault in the fourth degree in violation of § 53a–73 (a)(1)(E), and one count of risk of injury to a child in violation of General Statutes § 53–21(a)(2). On appeal, the defendant claims that (1) the court improperly prohibited defense counsel from refreshing the recollection of a witness, thus infringing on the defendant's right to confrontation under the federal constitution, (2) the court improperly allowed the state to present evidence of uncharged misconduct, and (3) the prosecutor engaged in prosecutorial impropriety, depriving him of a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and his wife lived together with their four children in Plainfield until the defendant's arrest in 2007. They had three biological children, a daughter, C, and two sons, B and R. The defendant and his wife later adopted the victim in February, 1999.

When the victim was approximately eleven years old, the defendant began sexually assaulting her. The first instance occurred when the defendant, a truck driver by profession, took her on an overnight truck run. The defendant removed the victim's clothes, and touched her chest and her “private.” On multiple other occasions, the defendant sexually assaulted the victim by forcing her to engage in oral and vaginal intercourse in his truck, as well as at their home. After the assaults, the defendant would tell the victim that he was sorry and that he loved her. When the victim was thirteen years old, she told C about the sexual assaults, and C told their youth pastor. Shortly thereafter, the youth pastor reported the incident to the Department of Children and Families (department).

The defendant thereafter was arrested and charged with the aforementioned crimes. The case proceeded to a jury trial, after which the jury found the defendant guilty on all counts. The court rendered judgment accordingly and sentenced him to a total effective sentence of forty years incarceration, execution suspended after twenty years, and twenty years probation with special conditions, which included registration as a sex offender. This appeal followed.

I

The defendant first claims that the court improperly prohibited defense counsel from refreshing the recollection of the victim, thereby infringing on his constitutional right to confrontation. The defendant argues that the victim's inability to remember the inconsistent statements she made to her aunt and to the department reflected on her credibility, a purpose for which the defendant was entitled to use the department's report to refresh her recollection. We disagree.

The following additional facts are relevant to this claim. At trial, defense counsel cross-examined the victim regarding statements she made to the department about the victim's relationship with her mother that contradicted statements she previously had made to her aunt. For example, defense counsel asked the victim whether she lied to her aunt about her mother prohibiting her from taking Tylenol when she had braces, to which the victim responded that she had lied. At other times during cross-examination, however, the victim could not remember making certain statements to her aunt or to the department. Defense counsel then sought to show the department's report to the victim to refresh her recollection as to whether the statements made to her aunt were false or, alternatively, whether the statements made to the department were false. The court denied defense counsel's request to refresh the victim's recollection, finding the proposed line of inquiry both irrelevant and collateral. The court found that whether the victim spoke to a department worker about her mother's actions and her response to that department worker “goes to a [completely] different issue.” It further found that “if there [were] any remote probative value to this line of questioning, it [was] so far outweighed by any prejudice that it would likely confuse the finder of fact [as to] what the admission [was] here in judging the credibility of [the victim]....” The court, however, permitted defense counsel to continue questioning the victim on the topic and elicited responses from the victim demonstrating that she had lied on previous occasions.¹ After trial, the defendant filed a motion for a judgment of acquittal and a motion for new trial on the grounds that, inter alia, the court failed to allow the defendant to refresh the recollection of the victim. The court denied the motions.

“Whether the recollection of a witness needs to be refreshed and whether it can be or has been refreshed by any means is in each case a question for the trial court, and its conclusion is unreviewable unless there has been a clear abuse of discretion.” (Internal quotation marks omitted.) State v. Bruno, 236 Conn. 514, 534, 673 A.2d 1117 (1996). “In determining whether there has been an abuse of discretion, the ultimate issue is whether the court ... reasonably [could have] conclude[d] as it did.” (Internal quotation marks omitted.) State v. Davis, 298 Conn. 1, 11, 1 A.3d 76 (2010). On appellate review, we “will make every reasonable presumption in favor of upholding the trial court's ruling[s] [on these bases].” (Internal quotation marks omitted.) Id.

“If, after reviewing the trial court's evidentiary rulings, we conclude that the trial court [ruled] properly ... then the defendant's constitutional claims necessarily fail.... If, however, we conclude that the trial court [ruled] improperly ... we will proceed to analyze [w]hether [the] limitations on impeachment, including cross-examination, [were] so severe as to violate [the defendant's rights under] the confrontation clause of the sixth amendment ... a question of law [that is] reviewed de novo.” (Citations omitted; internal quotation marks omitted). Id.

“The determination of whether a matter is relevant to a material issue or is collateral generally rests within the sound discretion of the trial court.” (Internal quotation marks omitted.) State v. Jose G., 102 Conn.App. 748, 782, 929 A.2d 324 (2007), aff'd, 290 Conn. 331, 963 A.2d 42 (2009). “Evidence is considered relevant when it tends to establish the existence of a material fact or to corroborate other direct evidence in the case.... Furthermore, relevant evidence has a logical tendency to aid the trier in the determination of an issue.... A witness may not be impeached by contradicting his or her testimony as to collateral matters, that is, matters that are not directly relevant and material to the merits of the case.” (Internal quotation marks omitted.) State v. Hall, 66 Conn.App. 740, 755, 786 A.2d 466 (2001), cert. denied, 259 Conn. 906, 789 A.2d 996 (2002).

“A witness [however] may be asked, in good faith, about specific instances of conduct of the witness, if probative of the witness' character for untruthfulness. Pursuant to this rule of evidence, [a] witness may be impeached by specific acts of conduct that evidence a lack of veracity.... While a witness may be impeached by such acts, [b]oth the allowance and the extent of cross-examination into the [prior acts] of a witness is discretionary with the trial court ... and such evidence may be excluded ... if it has a tendency to confuse or impede the litigation by injecting collateral issues into the trial.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Annulli, 130 Conn.App. 571, 580–81, 23 A.3d 808 (2011), cert. granted on other grounds, 302 Conn. 936, 28 A.3d 990 (2011). “A matter is not collateral if it is relevant to a material issue in the case apart from its tendency to contradict the witness.... The determination of whether a matter is relevant to a material issue or is collateral generally rests within the sound discretion of the trial court.” (Internal quotation marks omitted.) State v. Davis, supra, 298 Conn. at 32, 1 A.3d 76.

The defendant argues that the court improperly prohibited defense counsel from refreshing the victim's recollection because the line of inquiry was relevant to the victim's credibility. Yet, defense counsel's extensive questioning on cross-examination allowed the defendant to confront the victim regarding any potential lies she previously had told to her aunt and/or to the department. The court reasonably could have determined that allowing defense counsel to use the report to refresh the victim's recollection would have confused the issue by injecting a collateral issue into the trial. This could have required the jury to determine whether the victim, in an unrelated incident, had lied to her aunt or to the department on more than one occasion, turning the trial into a referendum on whether a thirteen year old previously had lied.²

We, therefore, cannot conclude that the trial court abused its discretion when it precluded defense counsel from refreshing the victim's recollection. Because the court did not improperly preclude the defendant from using the report to...