State v. Carrion

• Decision Date: 30 September 2014
• Docket Number: No. 18960.,18960.
• Citation: 100 A.3d 361,313 Conn. 823
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Christopher CARRION.

313 Conn. 823

100 A.3d 361

STATE of Connecticut

v.Christopher CARRION.

No. 18960.

Supreme Court of Connecticut.

Argued Sept. 25, 2013.

Decided Sept. 30, 2014.

Daniel J. Krisch, assigned counsel, for the appellant (defendant).

Harry Weller, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Amy Sedensky, senior assistant state's attorney, for the appellee (state).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and VERTEFEUILLE, Js.

Opinion

PALMER, J.

A jury found the defendant, Christopher Carrion, guilty 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 (Rev. to 2005) § 53–21(a)(2).¹ The trial court rendered judgments in accordance with the jury verdicts,² and the defendant appealed to the Appellate Court, claiming, inter alia, that the trial court improperly had (1) permitted the state, under 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),³ to use a video recording of a forensic interview of the child victim, D.L.,⁴ for substantive purposes, despite the highly suggestive manner in which the interview was conducted, and (2) instructed the jury that the state does not want the conviction of an innocent person as it is as much concerned in having an innocent person acquitted as in having a guilty person convicted. State v. Carrion, 128 Conn.App. 46, 48, 57, 16 A.3d 1232 (2011). The Appellate Court rejected the defendant's first claim, concluding that the trial court reasonably determined that the video recording of D.L.'s interview was admissible under Whelan notwithstanding any flaws in the manner in which the interview was conducted. See id., at 53–54, 16 A.3d 1232. With respect to the second claim, the Appellate Court declined to address its merits because, the Appellate Court concluded, the defendant implicitly had waived his right to raise the claim under State v. Kitchens, 299 Conn. 447, 482–83, 10 A.3d 942 (2011).⁵ State v. Carrion, supra, at 60–61, 16 A.3d 1232. We granted the defendant's petition for certification to appeal, limited to two issues. First, “[u]nder the circumstances presented, did the Appellate Court properly conclude that the trial court reasonably [had] permitted the state to introduce as substantive evidence a [video-recorded] interview of [D.L.] ... under [Whelan ]?”

State v. Carrion, 304 Conn. 925, 41 A.3d 1052 (2012). Second, “[d]id the Appellate Court properly conclude that [defense counsel] had a meaningful opportunity to review the trial court's final jury instructions and therefore [knowingly and intentionally] waived [the defendant's] unpreserved claim of instructional impropriety under [Kitchens ] ... when defense counsel did not receive those instructions until immediately prior to the lunch break on the day that the court instructed the jury, thereby affording counsel only one hour to review the instructions?” Id. Thereafter, the state claimed, as an alternative ground for affirmance,⁶ that, even if the defendant did not waive his right to challenge the jury instruction at issue, that instruction was not improper. With respect to the evidentiary issue, we agree with the Appellate Court that the trial court did not abuse its discretion in admitting into evidence, for substantive purposes, the video recording of D.L.'s forensic interview. With respect to the defendant's claim of instructional impropriety, even if we assume, without deciding, that the defendant's claim of instructional impropriety was not implicitly waived under Kitchens, we conclude that the challenged instruction, when viewed in the broader context of the charge as a whole, did not deprive the defendant of a fair trial. Accordingly, we affirm the judgment of the Appellate Court.

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

“On April 9, 2007, D.L. underwent a forensic interview [conducted by Jessica Alejandro, a forensic interviewer affiliated with the Child Guidance Clinic of Greater Waterbury, Inc.], during which [D.L.] recounted in detail the nature of the defendant's sexually abusive behavior. This interview was [video-recorded] 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.

“[When confronted with D.L.'s allegations, the defendant confessed to having had vaginal intercourse and oral sex with D.L. He then] was arrested and charged in two separate informations 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).” (Footnote omitted.) State v. Carrion, supra, 128 Conn.App. at 48–49, 16 A.3d 1232. The informations were consolidated, and a jury found the defendant guilty of four counts of sexual assault in the first degree and four counts of risk of injury to a child.

On appeal to the Appellate Court from the judgments of conviction, the defendant claimed that the trial court improperly had permitted the state to introduce into evidence the video recording of D.L.'s forensic interview for substantive purposes because the statements made by D.L. in that interview were “grievously unreliable” within the meaning of State v. Mukhtaar, 253 Conn. 280, 306–307, 750 A.2d 1059 (2000).⁷

State v. Carrion, supra, 128 Conn.App. at 49–50, 16 A.3d 1232. The Appellate Court rejected this claim, concluding that, although, in some respects, the interview may not have comported with certain standards for interviews of child sex abuse victims, “there [was] nothing so unduly coercive or extreme about the circumstances of D.L.'s interview that would serve to grievously undermine the reliability generally inherent in such a statement, so as to render it, in effect, not that of D.L. herself.” (Internal quotation marks omitted.) Id., at 53, 16 A.3d 1232. For this reason, the Appellate Court concluded that the trial court did not abuse its discretion in permitting the state to use the video recording for substantive purposes. Id., at 53–54, 16 A.3d 1232.

The defendant also claimed that the trial court improperly had instructed the jury that “[t]he state ... does not want the conviction of an innocent person ... [as] [t]he state is as much concerned in having an innocent person acquitted as in having a guilty person convicted.” (Internal quotation marks omitted.) Id., at 57, 16 A.3d 1232. Relying on State v. Kitchens, supra, 299 Conn. at 482–83, 10 A.3d 942 the Appellate Court determined that the defense implicitly had waived this unpreserved instructional claim.⁸ State v. Carrion, supra, 128 Conn.App. at 60, 61, 16 A.3d 1232.

On appeal to this court following our grant of certification, the defendant claims that the Appellate Court incorrectly concluded, first, that the trial court did not abuse its discretion in overruling defense counsel's objection to the state's use of the video recording of D.L.'s forensic interview as substantive evidence of the defendant's guilt and, second, that the defense implicitly waived the defendant's right to raise a claim on appeal challenging the trial court's jury instruction that the state wants to see an innocent person acquitted no less than it wants to see a guilty person convicted. We reject the defendant's evidentiary claim for the same reasons on which the Appellate Court relied, and, with respect to his claim of instructional impropriety, we conclude that the challenged instruction, viewed in light of the instructions as a whole, did not violate his constitutional right to a fair trial.⁹ Accordingly, we affirm the judgment of the Appellate Court.

I

We first address the defendant's contention that the trial court incorrectly concluded that the video recording of D.L.'s forensic interview was admissible for substantive purposes. The defendant asserts that Alejandro's questioning of D.L. was so leading and suggestive that D.L.'s statements in response to that questioning were wholly untrustworthy and, therefore, inadmissible for substantive purposes under State v. Mukhtaar, supra, 253 Conn. at 306–307, 750 A.2d 1059. See footnote 7 of this opinion. In support of this assertion, the defendant contends that Alejandro's questioning of D.L. violated accepted standards for conducting a forensic interview of a child sexual abuse victim. According to the defendant, these improprieties included Alejandro's: (1) repeated use of leading questions; (2) use of anatomically correct dolls in a suggestive manner; (3) act of informing D.L. that a social worker and two police officers were observing the interview; and (4) failure to validate D.L.'s statements. Although the state acknowledges that Alejandro utilized one or more arguably improper techniques during the course of her interview with D.L., it...