State v. Carrion

• Decision Date: 19 April 2011
• Docket Number: No. 31166.,31166.
• Citation: 128 Conn.App. 46,16 A.3d 1232
• Parties: STATE of Connecticutv.Christopher CARRION.
• Court: Connecticut Court of Appeals

128 Conn.App. 46

16 A.3d 1232

STATE of Connecticut

v.Christopher CARRION.

No. 31166.

Appellate Court of Connecticut.

Argued Feb. 3, 2011.Decided April 19, 2011.

Daniel Jonah Krisch, special public defender, with whom were Michael S. Taylor and, on the brief, Dana M. Hrelic, for the appellant (defendant).Harry Weller, senior assistant state's attorney, with whom, on the brief, were John A. Connelly, former state's attorney, and Amy Sedensky, senior assistant state's attorney, for the appellee (state).BISHOP, GRUENDEL and WEST, Js.GRUENDEL, J.

The defendant, Christopher Carrion, appeals from the judgments of conviction, following a jury trial, of four counts of sexual assault in the first degree in violation of General Statutes § 53a–70 (a)(2) and four counts of risk of injury to a child in violation of General Statutes § 53–21(a)(2).¹ On appeal, the defendant claims that the court improperly (1) admitted as substantive evidence the videotaped interview of the minor victim, D.L.,² (2) joined two cases for trial and (3) instructed the jury that “[t]he state is as much concerned in having an innocent person acquitted as in having a guilty person convicted.” We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. From January, 2005, to March, 2007, the defendant lived with his parents in Prospect, and D.L. lived with her parents and siblings in Waterbury. During this time, the defendant and D.L. regularly spent time together, as the two were cousins whose families would often gather to share holidays, parties and other family occasions. On March 25, 2007, D.L., who was then seven years old, revealed to her mother, R.L., that the defendant previously had sexually abused her during visits in both Prospect and Waterbury. Soon thereafter, R.L. informed detectives of the Waterbury police department of her daughter's revelations, and a formal investigation of the alleged abuse was initiated.

On April 9, 2007, D.L. underwent a forensic interview during which she recounted in detail the nature of the defendant's sexually abusive behavior. This interview was recorded by videotape in its entirety and the substance of D.L.'s statements during the interview were later confirmed by the defendant himself in a voluntary statement that he made to Waterbury police detectives on May 18, 2007. Additionally, on May 21, 2007, D.L. underwent a physical examination that corroborated further her account of the defendant's sexually abusive behavior.

The defendant subsequently was arrested and charged in two separate informations ³ with four counts of sexual assault in the first degree in violation of § 53a–70 (a)(2), four counts of risk of injury to a child in violation of § 53–21(a)(2) and two counts of risk of injury to a child in violation of § 53–21(a)(1). The cases were consolidated and, following a jury trial, the defendant was convicted of the four counts of sexual assault in the first degree and the four counts of risk of injury to a child.⁴ Thereafter, the court imposed a total effective sentence of thirty years incarceration, execution suspended after twenty-three years, with ten years of probation. This appeal followed. Additional facts will be set forth as necessary.

IADMISSIBILITY OF VIDEOTAPED INTERVIEW

The defendant first claims that the court improperly admitted as substantive evidence the videotaped interview of D.L. Specifically, the defendant claims that, given the highly suggestive and leading manner in which the interviewer elicited answers from D.L., D.L.'s videotaped account of the defendant's abusive conduct was coerced and is grievously unreliable. We disagree.

The following additional facts are relevant to the resolution of the defendant's claim. Prior to trial, the defendant filed a motion in limine seeking to preclude the state from admitting as evidence the videotaped interview of D.L. In support of this motion, the defendant argued, inter alia, that the coercive nature by which D.L.'s description of the sexual abuse was procured rendered the videotaped interview grievously unreliable and, therefore, inadmissible.

On January 23, 2009, an evidentiary hearing was held on the defendant's motion, during which the defendant presented the expert testimony of a clinical psychologist, David M. Mantell. Mantell testified that in his professional opinion, “the validity of the investigation techniques” used during D.L.'s interview were “so seriously marked from the best practices, that ... they invalidate[d] the procedural integrity of the [entire] evaluation.” More precisely, Mantell criticized the “suggestive techniques” utilized by the interviewer during D.L.'s examination; techniques that he found “produce[d] results of a questionable memory....” At the conclusion of Mantell's testimony, the court denied the defendant's motion in limine, ruling that “Mantell's review [of the videotape], with the benefit of 20/20 hindsight ... does show that some questions could be better worded ... but not that [D.L.'s] testimony was coerced.” As the court explained, the “failure to comply with protocols or prevailing standards does not necessarily connote grievous unreliability,” as otherwise required for exclusion.

During the state's case-in-chief, D.L. testified as to the defendant's sexually abusive behavior; however, her testimony in this regard was often inconsistent with the details she provided during her videotaped interview. As such, following D.L.'s testimony, the state moved to introduce the portions of the videotaped interview that were inconsistent with D.L.'s trial testimony as substantive evidence pursuant to State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986), and § 8–5 of the Connecticut Code of Evidence. ⁵ In response, the defendant argued that D.L.'s “statement[s] [during the interview] were taken in such circumstances that they undermine[d] the reliability of the statement[s]” and should be excluded under State v. Mukhtaar, 253 Conn. 280, 306–307, 750 A.2d 1059 (2000). The court then granted the state's request to admit “those portions of the tape that [were] inconsistent with [D.L.'s] testimony,” and, at the behest of the defendant, the entire videotaped interview eventually was admitted and shown to the jury members.

The defendant now claims that the court improperly admitted D.L.'s videotaped interview as substantive evidence. Specifically, the defendant maintains that because of the overtly suggestive manner by which the interviewer obtained D.L.'s account of the defendant's sexually abusive behavior, the videotaped interview should have been excluded as grievously unreliable.

Before addressing the merits of the defendant's claim, we begin by setting forth the applicable standard of review and legal principles governing our analysis. “[T]he admissibility of evidence, including the admissibility of a prior inconsistent statement pursuant to Whelan, is a matter within the ... discretion of the trial court.... [T]he trial court's decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.... On review by this court, therefore, every reasonable presumption should be given in favor of the trial court's ruling.” (Internal quotation marks omitted.) State v. Simpson, 286 Conn. 634, 643, 945 A.2d 449 (2008).

In State v. Mukhtaar, supra, 253 Conn. at 306–307, 750 A.2d 1059, our Supreme Court explained “that the linchpin of admissibility [under Whelan ] is reliability: the [prior inconsistent] statement may be excluded as substantive evidence only if the trial court is persuaded, in light of the circumstances under which the statement was made, that the statement is so untrustworthy that its admission into evidence would subvert the fairness of the fact-finding process. In the absence of such a showing by the party seeking to exclude a statement that meets the Whelan criteria, the statement is admissible as substantive evidence; like all other evidence, its credibility is grist for the cross-examination mill. Thus, because the requirements that [were] established in Whelan provide a significant assurance of reliability, it will be the highly unusual case in which a statement that meets the Whelan requirements nevertheless must be kept from the jury.”

Here, there is no dispute that D.L.'s videotaped interview satisfies the criteria of a prior inconsistent statement articulated in Whelan and adopted in § 8–5 of the Connecticut Code of Evidence. Rather, the defendant argues, quoting Mukhtaar, that “in light of the circumstances under which the statement was made ... the statement is so untrustworthy that its admission into evidence ... subvert[ed] the fairness of the fact-finding process.” Id., at 307, 750 A.2d 1059. Our review of the videotape, however, does not support the defendant's characterization of D.L.'s forensic interview. Although it is true that the interviewer used leading questions to elicit information from D.L., it is equally true that D.L. freely volunteered information, including the identity of the defendant, when describing how she was sexually abused. In fact, the defendant's claim that the “circumstances of the interview ... made the videotape grievously unreliable” is nothing more than an attack on the credibility of D.L.'s statements during the interview, and, as our Supreme Court noted in Mukhtaar, “credibility is grist for the cross-examination mill.” State v. Mukhtaar, supra, 253 Conn. at 307, 750 A.2d 1059. Although we are mindful of the criticisms voiced by Mantell regarding the manner in which the interview was conducted, we agree with the court that the “failure to comply with ... prevailing standards does not necessarily connote grievous unreliability” such that the videotape should have been excluded. To the contrary, these criticisms are, and were in this case, appropriate for the jury members...