State v. Carolina, 33181.

• Decision Date: 18 June 2013
• Docket Number: No. 33181.,33181.
• Citation: State v. Carolina, 143 Conn.App. 438, 69 A.3d 341 (Conn. App. 2013)
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Tyrone Douglas CAROLINA.

143 Conn.App. 438

69 A.3d 341

STATE of Connecticut

v.Tyrone Douglas CAROLINA.

No. 33181.

Appellate Court of Connecticut.

Argued March 5, 2013.

Decided June 18, 2013.

Raymond L. Durelli, assigned counsel, for the appellant(defendant).

Timothy F. Costello, assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and Warren C. Murray, supervisory assistant state's attorney, for the appellee(state).

BEACH, ALVORD and BEAR, Js.

ALVORD, J.

The defendant, Tyrone Douglas Carolina, appeals from the judgment of conviction, rendered after a jury trial, of two counts of risk of injury to a child in violation of General Statutes § 53–21(a)(2), two counts of risk of injury to a child in violation of § 53–21(a)(1) and one count of tampering with a witness in violation of General Statutes § 53a–151.¹On appeal, the defendant claims that (1) the evidence was insufficient to convict him of the crime of tampering with a witness, (2) certain prosecutorial improprieties during closing arguments deprived him of his due process right to a fair trial and (3)the court abused its discretion when it admitted portions of the victim's recorded interview into evidence as a prior consistent statement.We affirm the judgment of the trial court.

The jury reasonably could have found the following facts.The victim, K, ² was living with her parents and her sister in their home in Danbury at the time of the incidents.K was born in 1993 and has attended special education classes since she began school.The defendant was close friends with K's parents and has known K from the time she was born.Although K is not related to the defendant, she had a good relationship with him and referred to him as her uncle.The defendant was a frequent visitor at K's house, occasionally sleeping there overnight, and he was aware of K's cognitive disabilities.

On May 11, 2009, when K returned home from school, W, a family friend, noticedthat K's behavior was unusual.K's cousin and her sister also were present at that time.They began questioning K, and she reluctantly revealed that the defendant had had sexual contact with her.³A few hours later, K's older brother, L, arrived at the house and saw that K was upset and shaking.He asked her to accompany him in his car so that they could talk in private.In response to L's questions, K told him of a recent incident in which the defendant had sexually molested her.The Danbury police department was contacted and officers arrived at K's house later that evening.Thereafter, the defendant was arrested and charged with offenses related to his sexual contact with K.

While the defendant was incarcerated awaiting trial, he mailed a letter to his cousin, Christopher Carolina, from the correctional institution.The defendant used his cellmate's name and prison number as the defendant's return address on the envelope.The defendant failed to write the name of Christopher Carolina as the addressee on the envelope, but he did include his cousin's correct mailing address.The letter was intercepted and held by a corrections officer.The letter's contents were disclosed to the office of the state's attorney.In the letter, the defendant asked his cousin to remind Tierra LaPlant, the cousin's daughter, that she had spoken with K.In a prepared script, the defendant asked if his cousin remembered LaPlant's statements that she had spoken with K and that K had recanted the sexual molestation claims against the defendant.The defendant concluded by asking his cousin to “get [LaPlant] to confess that testimony again....[Have LaPlant] make a phone call with that confession to my attorney....Get to work.”The defendant then was charged with tampering with a witness in violation of § 53a–151.All of the charges against the defendant were consolidated for trial.

Following a five day trial in September, 2010, the jury returned a verdict finding the defendant guilty of four counts of risk of injury to a child and one count of tampering with a witness.The trial court rendered a judgment of conviction in accordance with the jury's verdict and sentenced the defendant to a total effective sentence of twenty years incarceration, suspended after twelve years, followed by twenty years of probation.This appeal followed.Additional facts will be discussed where relevant to the claims on appeal.

I

The defendant's first claim is that the evidence was insufficient to convict him of the crime of tampering with a witness.Specifically, he argues that the state failed to prove beyond a reasonable doubt that he induced or attempted to induce a witness to testify falsely.According to the defendant, a person is guilty of tampering with a witness only if he intends that his conduct directly cause a particular witness to testify falsely.Although he admits that his letter could be construed as an attempt to induce LaPlant to testify falsely, ⁴he claims that such conduct would not satisfy the elements of the crime because “[t]he letter was an attempt to induce the defendant'scousin to induce his daughter [LaPlant] to testify falsely.The letter never reached [LaPlant].Therefore [LaPlant] was never aware of the defendant's attempts to induce her to testify falsely.”

The standard of review that we apply to a claim of insufficient evidence is well established.In reviewing the sufficiency of the evidence to support a criminal conviction, we apply a two part test.“First, we construe the evidence in the light most favorable to sustaining the verdict.Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt....While ... every element [must be] proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt.”(Internal quotation marks omitted.)State v. Jennings,125 Conn.App. 801, 805, 9 A.3d 446(2011).

Review of the defendant's claim must necessarily begin with the elements that the charged statute requires to be proved.Such a review involves statutory construction, which is a question of law.Our review, therefore, is plenary.SeeState v. Pommer,110 Conn.App. 608, 613, 955 A.2d 637, cert. denied, 289 Conn. 951, 961 A.2d 418(2008).

Section 53a–151(a) provides: “A person is guilty of tampering with a witness if, believing that an official proceeding is pending or about to be instituted, he induces or attempts to induce a witness to testify falsely, withhold testimony, elude legal process summoning him to testify or absent himself from any official proceeding.”The defendant does not contest the fact that an official proceeding was pending, but, rather, he argues that the state failed to present the evidence needed to show that hedirectly induced or attempted to induce LaPlant to testify falsely.We conclude that the state met its burden.

Because the defendant's letter was intercepted by a corrections officer before it reached the defendant's cousin, LaPlant never became aware of the defendant's scripted testimony.A failed attempt, however, may violate the statute.“The language of § 53a–151 plainly warns potential perpetrators that the statute applies to any conduct that is intended to prompt a witness to testify falsely ... in an official proceeding that the perpetrator believes to be pending or imminent.”(Emphasis added.)State v. Cavallo,200 Conn. 664, 668, 513 A.2d 646(1986).A defendant is guilty of tampering with a witness “if he intends that his conduct directly cause a particular witness to testify falsely....”Id., at 672, 513 A.2d 646.So interpreted, § 53a–151 applies to conduct intentionally undertaken to undermine the veracity of testimony given by a witness.Id.The statute applies to successful as well as unsuccessful attempts to induce a witness to render false testimony.Id., at 669, 513 A.2d 646.

The defendant's conduct, i.e., writing a letter to his cousin that solicited his help in securing LaPlant's false testimony, clearly is prohibited by § 53a–151.The statute is violated if the individual “attempts” to induce “a witness” to testify falsely.SeeGeneral Statutes § 53a–151.The defendant, through his cousin as an intermediary, was attempting to induce LaPlant, as a witness, to testify falsely.“[A] witness ... is any person summoned, or who may be summoned, to give testimony in an official proceeding.”(Emphasis in original; internal quotation marks omitted.)State v. Lee,138 Conn.App. 420, 439, 52 A.3d 736(2012).If the defendant's cousin had complied with the defendant's request, LaPlant would have told defense counsel that K had recanted her allegations against the defendant.Most assuredly, LaPlant then would have been called as a witness to rebut K's testimony at trial.

The fact that the statutory language of § 53a–151 does not explicitly proscribe the exact method employed by the defendant to induce the false testimony is of no consequence.The statute prohibits any conduct that is intended to prompt false testimony.State v. Cavallo,supra, 200 Conn. at 668, 513 A.2d 646.“A statute need not exhaustively list the exact conduct prohibited.”State v. Coleman,83 Conn.App. 672, 677, 851 A.2d 329, cert. denied, 271 Conn. 910, 859 A.2d 571(2004), cert. denied, 544 U.S. 1050, 125 S.Ct. 2290, 161 L.Ed.2d 1091(2005).Neither the statute nor the case law interpreting the statute requires that the request to testify falsely be made directly to the witness.The purpose of the statute would be thwarted if a defendant could avoid liability by inducing false testimony indirectly through an intermediary instead of communicating directly with the witness himself.

In the present case, from the evidence presented, the jury reasonably could have...