State v. Cromety

• Decision Date: 17 July 2007
• Docket Number: No. 26942.,26942.
• Citation: 925 A.2d 1133,102 Conn.App. 425
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Eugene CROMETY.

925 A.2d 1133

102 Conn.App. 425

STATE of Connecticut v. Eugene CROMETY.

No. 26942.

Appellate Court of Connecticut.

Argued February 6, 2007.

Decided July 17, 2007.

Kirstin B. Coffin, special public defender, for the appellant (defendant).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were, Kevin D. Lawlor, state's attorney, and Mary M. Galvin, former state's attorney, for the appellee (state).

SCHALLER, HARPER and LAVINE, Js.

LAVINE, J.

The defendant, Eugene Cromety, appeals from the judgment of conviction, following a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1) and one count of risk of injury to a child in violation of General Statutes § 53-21(a)(2).¹ On appeal, the defendant claims that (1) prosecutorial impropriety² deprived him of the constitutional right to a fair trial and (2) the court abused its discretion by permitting the state to present testimony (a) under the medical treatment exception to the hearsay rule and (b) concerning the victim's credibility. We disagree and therefore affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim,³ who is deaf,⁴ was born in 1989. On three separate occasions, the defendant⁵ engaged in sexual acts with the victim against her will. First, the defendant touched the victim's breasts by licking and biting them in the spring of 2001, when the victim was about twelve years old. The defendant inserted his finger into the victim's vagina in the winter of 2001. In the late fall or early winter of 2002, the defendant licked the victim's vagina and forced her to perform oral sex on him. The defendant also caused his penis to come in contact with the victim's breasts. The defendant is the father of the victim's three younger half-sisters and was in a relationship with the victim's mother at all relevant times. The victim was fifteen at the time she testified and was reluctant to testify because it made her uncomfortable.

Allegations of the defendant's sexual abuse of the victim were reported anonymously to the department of children and families (department). Thereafter, police officers and a department employee went to the victim's home to investigate. As a result of their investigation, the victim was taken to the Yale-New Haven Hospital child sex abuse clinic where she was examined.

The defendant took the witness stand in his defense and testified that he had been a loving father to the victim. He also testified that the victim had fabricated the allegations against him because she was jealous about having to share family resources with her half-sisters or that her grandmother and uncle had encouraged her to make the allegations because of a dispute they had had with the defendant and the victim's mother. The defendant is proficient in American sign language, able to communicate with the victim and served as her communicator both within and outside of the family. The victim's mother had only a basic command of American sign language. We will address additional facts as necessary.

I

The defendant claims that he was denied the constitutional right to a fair trial due to prosecutorial impropriety that occurred during the examination of witnesses and closing argument. Specifically, the defendant claims that during final argument, the prosecutor improperly (1) appealed to the emotions of the jury, (2) vouched for the victim's credibility, (3) referred to facts that were not in evidence and (4) commented on the defendant's silence in response to questions from an investigating police officer. We are unpersuaded.

"[T]he touchstone of due process analysis in cases of alleged [harmful] prosecutorial [impropriety] is the fairness of the trial, and not the culpability of the prosecutor. . . . The issue is whether the prosecutor's [actions at trial] so infected [it] with unfairness as to make the resulting conviction a denial of due process. . . . In determining whether the defendant was denied a fair trial . . . we must view the prosecutor's [actions] in the context of the entire trial. . . .

"[I]t is not the prosecutor's conduct alone that guides our inquiry, but, rather, the fairness of the trial as a whole. . . . We are mindful throughout this inquiry, however, of the unique responsibilities of the prosecutor in our judicial system. A prosecutor is not only an officer of the court, like every other 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. . . . By reason of his [or her] office, [the prosecutor] usually exercises great influence upon jurors. [The prosecutor's] conduct and language in the trial of cases in which human life or liberty [are] at stake should be forceful, but fair, because he [or she] represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice or resentment. If the accused be guilty, he [or she] should [nonetheless] be convicted only after a fair trial, conducted strictly according to the sound and well-established rules which the laws prescribe." (Internal quotation marks omitted.) State v. Fauci, 282 Conn. 23, 32-33, 917 A.2d 978 (2007).

During trial, the defendant failed to object to the alleged instances of prosecutorial impropriety he raises on appeal. Nonetheless, we will review the claims because the keystone of "appellate review of claims of prosecutorial [impropriety] is a determination of whether the defendant was deprived of his right to a fair trial, and this determination must involve the application of the factors set out by [our Supreme Court] in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987)."⁶ State v. Stevenson, 269 Conn. 563, 573, 849 A.2d 626 (2004). "[I]n analyzing claims of prosecutorial [impropriety], we engage in a two step analytical process. The two steps are separate and distinct: (1) whether [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, [impropriety] is [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. . . ." (Internal quotation marks omitted.) Id., at 572, 849 A.2d 626.⁷

A

The defendant first claims that the prosecutor improperly appealed to the emotions of the jury by eliciting certain testimony from an expert witness and then using that evidence during final argument. To the extent that the defendant's claim concerns the testimony of an expert witness, it is an unpreserved evidentiary claim that is not reviewable because the defendant failed to object timely to the testimony. See State v. Rowe, 279 Conn. 139, 149-52, 900 A.2d 1276 (2006). To the extent that the claim focuses on the prosecutor's use of the evidence during final argument, we conclude that there was no impropriety.

The following facts are relevant to the defendant's claim. The state called Lisa Kuntz, a licensed and school certified psychologist at the American School for the Deaf, to testify. She gave extensive testimony on the cognitive and language development of a deaf person and the culture of the world of the deaf, including testimony that "studies worldwide suggest that the fact of a disability places a child at 50 percent greater risk for being abused or neglected." The defendant did not object to the question posed by the prosecutor,⁸ nor did he move to strike the testimony.

On appeal, the defendant claims that Kuntz' testimony improperly invited "the jury to believe the victim's testimony merely because the victim is disabled."

Although our Supreme Court has held that unpreserved claims of prosecutorial impropriety are to be reviewed under the Williams factors, that rule does not pertain to mere evidentiary claims masquerading as constitutional violations. The defendant has failed to bring to our attention any law that expert testimony related to the vulnerability of a disabled population is constitutionally improper. Thus, he has not removed the allegedly objectionable testimony from the realm of an evidentiary claim. Evidentiary claims do not merit review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), because they are not of constitutional magnitude. "[R]obing garden variety claims [of an evidentiary nature] in the majestic garb of constitutional claims does not make such claims constitutional in nature. . . . Putting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender." (Internal quotation marks omitted.) State v. Rosario, 99 Conn.App. 92, 99 n. 6, 912 A.2d 1064, cert. denied, 281 Conn. 925, 918 A.2d 276 (2007).

The defendant may not transform an unpreserved evidentiary claim into one of prosecutorial impropriety to obtain review of the claim. See State v. Rowe, supra, 279 Conn. at 149, 900 A.2d 1276. An appellate court "shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. . . . Practice Book § 60-5. . . . PSE Consulting, Inc. v. Frank Mercede & Sons, Inc., 267 Conn. 279, 335, 838 A.2d 135 (2004) (because review is limited to matters in record, court will not address issues not decided by trial court). In addition, [o]ur rules of procedure do not allow a [party] to pursue one course of action at trial and later, on appeal, argue that a path he rejected should now be open to him. . . . To rule otherwise would permit trial by ambuscade." (Citation omitted; internal quotation marks omitted.) State v. Rowe, supra, at 149-50, 900 A.2d 1276.

The defendant also claims that the prosecutor made repeated reference to Kuntz' testimony during opening and closing statements, thus arousing...