State v. Ceballos
| Decision Date | 21 October 2003 |
| Docket Number | (SC 16901) |
| Court | Connecticut Supreme Court |
| Parties | STATE OF CONNECTICUT v. MANUEL CEBALLOS |
Borden, Norcott, Palmer, Zarella and Pellegrino, Js. Pamela S. Nagy, special public defender, for the appellant (defendant).
James M. Ralls, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Michael Pepper, assistant state's attorney, for the appellee (state).
The principal issue in this appeal is whether the defendant's federal due process right to a fair trial was violated as a result of numerous instances of prosecutorial misconduct during closing arguments and in the questioning of witnesses. The defendant, Manuel Ceballos, appeals1 from the judgment of conviction, rendered after a jury trial before the court, Devlin, J., of one count each of the crimes of sexual assault in the first degree in violation of General Statutes (Rev. to 1999) § 53a-70 (a)(2),2 and risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21 (a)(2).3 On appeal, the defendant claims that: (1) the state's attorney violated the defendant's federal and state due process rights4 to a fair trial as a result of numerous instances of misconduct in his closing arguments and in the questioning of witnesses, including the defendant; (2) the trial court improperly admitted constancy of accusation evidence; (3) the trial court improperly failed to instruct the jury that its verdict was required to be unanimous with respect to an underlying act that would support a conviction on each of the two counts charged; and (4) the trial court improperly failed to give the jury the child credibility instruction requested by the defendant. We conclude that prosecutorial misconduct during the questioning of witnesses and closing arguments deprived the defendant of his federal due process right to a fair trial,5 and we reverse the judgment of conviction and remand the case to the trial court for a new trial. We also will address the defendant's claims of instructional error because they are likely to arise again at the defendant's new trial.6
The record reveals that the jury reasonably could have found the following facts. The defendant had resided in the New Haven home of his cousin, T, and her husband, since June, 1996. The victim, S,7 and her mother, K, were T's granddaughter and daughter, respectively. In May, 2000, S and K resided in T's home, along with the defendant, T's husband, T's three other adult children and six of T's grandchildren, including S and her three younger brothers. K and her children, including S, lived in a bedroom on the third floor of the house. The defendant also had lived on the third floor, as did A, the uncle of S, and his infant son. The defendant did not share his bedroom with anyone else.
In May, 2000, S was seven years old. She testified that, on May 9, 2000, she was in her room with her younger brothers watching cartoons on television.8 No one else was on the third floor of the house at that time.9 S testified that the two boys were fighting; one brother had gone to the defendant's room and told him that the other boy was hitting him. S testified that the defendant had then entered the room and told the children to stop fighting. He then told S to come with him to his bedroom. She testified that, while she was in the defendant's bedroom with him, he kissed her, touched her chest with his hand, and partially inserted his "pointing finger" into her vagina and rectum. S testified that she did not say anything to the defendant at that time because she was "too afraid." The defendant then told her to keep what had transpired "a secret" and not to tell her mother.
S testified that the defendant had touched her in a similar manner on several occasions before May 9, 2000, and that these incidents always had occurred on the third floor of the house. She testified that she could not recall the specific dates, but that all of the incidents had occurred in April and May, 2000.10
S testified that on May 10, 2000, the day after one of the alleged incidents with the defendant, she had suffered from pain in the "private part" that was "[b]etween [her] legs." S told K about her pain during the early evening of that day. At that time K also had observed S scratching and "pulling on" her vaginal area. K examined the area and instructed S to put diaper rash cream on it to relieve the irritation. K then asked S whether anyone had touched her in that area.11 K testified that S did not respond at first, and that she had seemed puzzled. K then testified that she repeated the question. At this point, S told K that the defendant had sexually abused her.
Subsequently, on the evening of May 10, K brought S to the Fair Haven Clinic (clinic) for medical evaluation. At the clinic, Laurel Shader, a pediatrician, had conducted a physical examination of S, including her vaginal and rectal areas, and also interviewed her.12 Shader testified that her examination of the vaginal area revealed normal anatomy, with the exception of a scratch, or a "faint abrasion," on the outer labia. She testified that the scratch could have been caused by digital penetration by an adult's finger, but also could have numerous other causes, including the child's own scratching,13 or the fact that "some kids at this age tend to wipe themselves too vigorously and sometimes cause little scratches...." Shader also testified that slight penile penetration of the child's vagina would not necessarily cause physical trauma or leave evidence.14 Shader indicated that the results of the rectal examination were normal; that, however, did not necessarily mean that the area had not been digitally penetrated. Finally, she testified that in the majority of sexual abuse cases, there is no physical evidence because of the delay in reporting the incident, especially when coupled with children's rapid physical healing.15 Accordingly, a normal physical examination did not foreclose the possibility that a sexual assault had occurred.16
Later on the evening of May 10, Jeff Hoffman, a New Haven police officer, responded to the clinic to conduct a preliminary investigation, and he spoke to K, S and Shader. Hoffman was met shortly thereafter by Edwin Rodriguez, a New Haven police detective. K told the police officers where they could find the defendant.17 K subsequently brought S to police headquarters to be interviewed by Rodriguez and another detective, Patricia Adger. During this interview, S told the detectives that the defendant had sexually assaulted her. She then indicated the areas where she alleged the defendant had touched her by circling the chest, genitals and buttocks on a picture of a girl given to her by the detectives. S testified that she was tired during this interview because it was late and past her bedtime. Rodriguez testified that the interview was performed at approximately 10 or 11 p.m.18
Thereafter, on May 12, S and K discussed the incident again. S testified that she had told K that the defendant had put her hand onto his genitals, and had slightly penetrated her vagina with his penis.19 S testified that the defendant always had kept his clothes on during these encounters; the defendant would unzip his pants in order to expose his genitals. S testified that she did not talk about this on May 10 with K, Shader or the police because she was "too afraid."20 On the basis of this information, K had called the clinic and scheduled another appointment for S for May 15.
Subsequently, on May 15, Ruth McGraw, S's regular pediatrician, examined and interviewed her at the clinic. In light of S's additional disclosures, McGraw, with the assistance of Sandra Flatow, a sexual abuse expert, examined S, including her vaginal and rectal areas, and did not note any physical abnormalities. McGraw also took cultures from the vagina, rectum and throat to check for gonorrhea and chlamydia. These cultures returned negative after a laboratory analysis. Like Shader, McGraw also testified that her negative findings did not mean that S had not been sexually abused.21
The defendant, T and A, K's half-brother, testified for the defense. T testified that when she came home from work on May 10, 2000, K told her that the defendant had sexually abused S. She testified that she only had spoken with K about S's allegations,22 but that she did not believe them. T testified that she never questioned S about the allegations; she had returned to work when K took S to the clinic. T, however, stated on cross-examination that she and the defendant often were not home together at the same time. She routinely had returned from work at 8 p.m. and the defendant routinely had departed for work shortly before 10 p.m. on weeknights.
A, who in addition to being K's half-brother, is a cousin and friend of the defendant. A testified that in May, 2000, he lived in the bedroom that was located between K's room and the defendant's room. At that time, he had worked on varying days between 8:30 a.m. to 6 p.m. as a senior citizens' driver. A testified that, to his knowledge, the defendant usually worked approximately from 10 p.m. until 7 a.m. When the defendant was in his room, A testified that the door was always closed. A testified that he was present in the house on the day and evening of May 9, 2000, but that he had gone to church for part of the evening. He also testified that the police did not question him about whether he was present in the house at the time of the alleged incident. A testified that he never had seen S go into the defendant's room.
The defendant also testified in his own defense. He described the interior of his room as containing a bed, three bureaus, family photographs and a television. He testified that the room had one window and a solid white door with a lock. The defendant testified that in May, 2000, he usually worked on...
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