State v. Carrillo

• Citation: 209 Conn.App. 213,267 A.3d 322
• Decision Date: 14 December 2021
• Docket Number: AC 43529
• Parties: STATE of Connecticut v. Gilberto Patricio CARRILLO
• Court: Appellate Court of Connecticut

209 Conn.App. 213

267 A.3d 322

STATE of Connecticut

v.Gilberto Patricio CARRILLO

AC 43529

Appellate Court of Connecticut.

Argued September 14, 2021

Officially released December 14, 2021

John R. Weikart, assigned counsel, with whom was Emily Graner Sexton, assigned counsel, for the appellant (defendant).

Nancy L. Chupak, senior assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and James R. Dinnan, supervisory assistant state's attorney, for the appellee (state).

Bright, C. J., and Clark and Eveleigh, Js.

EVELEIGH, J.

The defendant, Gilberto Patricio Carrillo, appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A),¹ two counts of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A),² and two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2).³ On appeal, the defendant claims that he is entitled to a new trial on the grounds that the prosecutor, in his closing and rebuttal arguments to the jury, violated the defendant's right to a fair trial by improperly (1) referring to facts not in evidence, (2) vouching for the credibility of witnesses, (3) appealing to the passions, emotions, and prejudices of the jurors, and (4) impugning the integrity and institutional role of defense counsel. We conclude that, although some of the prosecutor's comments constituted improprieties, nevertheless, those improprieties did not deprive the defendant of his due process right to a fair trial. Accordingly, we affirm the judgment of conviction.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. The victim, M,⁴ is the daughter of the defendant's girlfriend. In the spring and summer of 2017, when M was ten years old, she lived with her mother, the defendant, and her one year old sister, who is the daughter of the defendant and M's mother. M spent weekends with her biological father.

The defendant looked after M and her sister after M returned home from school because the children's mother was usually still at work. During the spring and summer of 2017, while M's mother was working, the defendant touched M's breasts with his hands and mouth on several occasions. M testified at trial that, on one occasion, the defendant pushed her down onto her bed, held her hands over her head, pulled up her shirt and bra, and touched her breast, which M testified "hurt a little." On another occasion, M was lying on the living room sofa, and the defendant laid down next to her, pulled her hands over her head, raised her shirt and bra, and used his mouth to suck the nipples of her breasts. On a third occasion, the defendant again used his mouth to suck the nipples of her breasts as he held her hands above her head. The defendant told her that this would make her breasts grow.⁵ M testified that the defendant touched her breasts "a lot" during the spring and summer of 2017. Specifically, that he sucked her nipples "a few times" but not as many times as he touched her breasts with his hands.

M told her mother about the defendant's behavior after M became angry at the defendant for ordering her around the house. Her mother told M that if he touched M's breasts again, they would report the defendant to the police. After this conversation, the defendant stopped touching M's breasts for some time but eventually began to do so again. M did not tell her mother when the incidents with the defendant resumed because she was afraid that (1) she would be unsafe, (2) she would not be able to see her little sister anymore, (3) her sister would grow up without a father if the defendant went to jail, and (4) her mother would not have the financial help she needed to pay bills. M's mother eventually disclosed the defendant's behavior to the pediatrician who treated M's sister, who, in turn, reported it to the Department of Children and Families (department). Thereafter, the department notified the police, and Detective Gary Szlachetka was assigned to investigate.

The department scheduled a forensic interview and a physical examination of M at the Child Advocacy Center at Yale-New Haven Hospital. The forensic interview was conducted by a licensed clinical social worker, Maria Silva. Szlachetka, a department social worker, Alexandra Chisholm, and a nurse practitioner, Beth A. Moller, observed the forensic interview on a television monitor in a separate room. The interview was also recorded and later introduced at trial. During the interview, M told Silva that the defendant touched her breasts with his hands and sucked on her nipples with his mouth multiple times. M also demonstrated how the defendant touched her breasts by forming her hand into the letter "C." In addition, M used dolls to demonstrate to Silva how the defendant touched her.

Moller conducted a physical examination of M, but she did not find anything inconsistent with a normal, healthy child. At trial, Moller agreed that it was typical that there would not be any physical signs of abuse when the abuse alleged was touching and sucking on a child's breasts.⁶

Silva testified regarding the procedure of the forensic interview. Specifically, Silva testified that she had undergone specialized training to interview children in a supportive, nonleading manner.⁷ She further testified that it was very common for children to delay disclosing abuse and that it is common for children to disclose abuse when emotions are running high—such as when they are angry. With regard to reasons why children may not disclose or delay in disclosing abuse, Silva stated that "[t]here's a magnitude of [reasons] why children delay in disclosing ...."

After a three day jury trial, the defendant was convicted of all charges and sentenced to a total effective term of thirty years of imprisonment, execution suspended after ten years, followed by fifteen years of probation. This appeal followed.

On appeal, the defendant claims that the prosecutor made several improper statements during closing and rebuttal arguments. Specifically, the defendant claims that the prosecutor improperly (1) referred to facts not in evidence, (2) vouched for the credibility of witnesses, (3) appealed to the passions, emotions, and prejudices of the jurors, and (4) impugned the integrity and institutional role of defense counsel. The defendant claims that the prosecutor's improper statements deprived him of his due process right to a fair trial. The state responds that only one of the alleged improprieties was improper and that none of the prosecutor's remarks, taken separately or in sum, violated the defendant's due process right to a fair trial. Although we agree with the defendant that some of the prosecutor's statements were improper, we nevertheless conclude that he was not deprived of his due process right to a fair trial.

Before we address the merits of the defendant's claims, we set forth the standard of review and the law governing claims of prosecutorial impropriety. "[I]n analyzing claims of prosecutorial [impropriety], we engage in a two step analytical process. The two steps are separate and distinct: (1) whether [an impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial. Put differently, [an impropriety is an impropriety], regardless of its ultimate effect on the fairness of the trial; whether that [impropriety] caused or contributed to a due process violation is a separate and distinct question that may only be resolved in the context of the entire trial ...." (Internal quotation marks omitted.) State v. Ciullo , 314 Conn. 28, 34–35, 100 A.3d 779 (2014).

Although the defendant did not object at trial to any of the prosecutor's alleged improprieties, his claims are nonetheless reviewable on appeal, pursuant to the factors set forth by our Supreme Court in State v. Williams , 204 Conn. 523, 540, 529 A.2d 653 (1987).⁸ See also State v. Luster , 279 Conn. 414, 426–28, 902 A.2d 636 (2006).

"[P]rosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments. ... When making closing arguments to the jury, [however, counsel] must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. ... Thus, as the state's advocate, a prosecutor may argue the state's case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom. ... Moreover, [i]t does not follow ... that every use of rhetorical language or device [by the prosecutor] is improper. ... The occasional use of rhetorical devices is simply fair argument. ...

"Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury's attention from the facts of the case. [The prosecutor] is not only an officer of the court, like every attorney, but is also a high public officer, representing the people of the [s]tate, who seek impartial justice for the guilty as much as for the innocent." (Internal quotation marks omitted.)

State v. Ciullo , supra, 314 Conn. at 37–38, 100 A.3d 779.

IPROSECUTORIAL IMPROPRIETY

We now turn to whether the prosecutor's remarks in the present case constituted prosecutorial impropriety.

The defendant claims that he is entitled to a new trial because the prosecutor, in his closing and rebuttal arguments to the jury, violated his right to a fair trial by improperly (1) referring to facts not in evidence, (2) vouching for the credibility of witnesses, (3) appealing to the passions, emotions, and prejudices of the jurors, and (4) impugning the integrity and institutional role of defense counsel. We...