State v. Gilbert I.

• Decision Date: 08 April 2008
• Docket Number: No. 28134.,28134.
• Citation: 944 A.2d 353,106 Conn.App. 793
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. GILBERT I.<SMALL><SUP>1</SUP></SMALL>

944 A.2d 353

106 Conn.App. 793

STATE of Connecticut v. GILBERT I.¹

No. 28134.

Appellate Court of Connecticut.

Argued January 22, 2008.

Decided April 8, 2008.

Joseph Visone, special public defender, for the appellant (defendant).

Kathryn Ward Bare, deputy assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Catherine Brannelly Austin, senior assistant state's attorney, for the appellee (state).

FLYNN, C.J., and BISHOP and BEACH, Js.

BEACH, J.

The defendant, Gilbert I., appeals from the judgment of conviction, rendered following a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(2), and risk of injury to a child in violation of General Statutes §§ 53-21(a)(1) and (2).² On appeal, the defendant claims that (1) the trial court improperly admitted opinion testimony by the state's expert witness, (2) the court improperly permitted the state to introduce evidence of the defendant's prior misconduct and (3) he was deprived of a fair trial as a result of prosecutorial impropriety. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. While the victim was approximately eight and nine years old, she periodically was sexually assaulted in her home by her former stepfather, the defendant. According to the victim's testimony, she was assaulted on multiple occasions during this period.

The victim did not tell anybody about the assaults until she was approximately fourteen years old, at which point she told her stepmother, her father and her mother. The victim also provided a written statement to the Waterbury police department. The defendant was arrested shortly thereafter and charged with sexual assault in the first degree and risk of injury to a child.

The defendant's case was tried to the jury in June, 2006. Following a guilty verdict by the jury on all counts charged, the defendant was sentenced on August 25, 2006, to a total effective term of twenty-five years incarceration and ten years probation. This appeal followed.

I

The defendant first claims that his "right to confront the witnesses against him was violated when the state's expert witness was allowed to testify beyond the permissible scope of testimony normally allowed for experts." Specifically, the defendant challenges the court's admission of hearsay testimony in the form of "unnamed statistical studies of delayed reporting of abuse [and] anecdotal evidence" provided by the state's sexual abuse expert, Diane Edell. We do not agree.

The defendant did not preserve his claim at trial but seeks review under State v. Golding, 213 Conn. 233 239-40, 567 A.2d 823 (1989).³ The record is adequate for review, but the defendant's claim fails under the second prong of Golding because the claimed error is evidentiary in nature and is not of constitutional magnitude.

"It is well established that every evidentiary ruling that denies a defendant a line of inquiry is not a violation of his constitutional rights. The defendant's right to confront witnesses against him is not absolute, but must bow to other legitimate interests in the criminal trial process. . . . Accordingly, [t]he defendant can not raise a constitutional claim by attaching a constitutional label to a purely evidentiary claim or by asserting merely that a strained connection exists between the evidentiary claim and a fundamental constitutional right.... Thus, [o]nce identified, unpreserved evidentiary claims masquerading as constitutional claims will be summarily dismissed. . . . We previously have stated that the admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved." (Citations omitted; internal quotation marks omitted.) State v. Gerald W., 103 Conn.App. 784, 797-98, 931 A.2d 383, cert. denied, 284 Conn. 933, 935 A.2d 152 (2007); see also State v. Kulmac, 230 Conn. 43, 55, 644 A.2d 887 (1994).

The essence of the defendant's argument is that without proper examination of Edell concerning her reliance on outside sources cited in her testimony, Edell's testimony was impermissible hearsay in violation of the confrontation clause. The concerns of the defendant, however, namely, the trustworthiness and reliability of the testimony, are addressed by the rules of evidence concerning expert testimony rather than the confrontation clause. See George v. Ericson, 250 Conn. 312, 321, 736 A.2d 889 (1999) ("an expert's opinion is not rendered inadmissible merely because the opinion is based on inadmissible hearsay, so long as the opinion is based on trustworthy information and the expert had sufficient experience to evaluate that information so as to come to a conclusion which the trial court might well hold worthy of consideration by the jury" [internal quotation marks omitted]); see also Conn. Code Evid. § 7-4. Experts commonly rely on statistical studies and other sources. As stated in In re Barbara J., 215 Conn. 31, 574 A.2d 203 (1990), "[w]hen the expert witness has consulted numerous sources, and uses that information, together with his own professional knowledge and experience, to arrive at his opinion, that opinion is regarded as evidence in its own right and not as hearsay in disguise." (Internal quotation marks omitted.) Id., at 43, 574 A.2d 203.

Furthermore, the defendant had the opportunity to cross-examine Edell as to her reliance on the outside sources but did not do so.⁴ See State v. Singh, 59 Conn.App. 638, 652, 757 A.2d 1175 (2000) ("reliance on information provided by others does not violate the confrontation clause where the expert is available for cross-examination concerning the nature and reasonableness of his reliance"), rev'd on other grounds, 259 Conn. 693 793 A.2d 226 (2002). Simply put, outside sources are used to show the basis of the expert's opinion rather than for extrinsic substantive proof. See George v. Ericson, supra, 250 Conn. at 324-25, 736 A.2d 889. Because the court's admission of Edell's expert testimony did not implicate a fundamental constitutional right, we decline to review the defendant's unpreserved evidentiary claim.

II

The defendant next claims that the court improperly permitted the state to introduce evidence of his prior misconduct. Specifically, the defendant claims that he was prejudiced by the victim's testimony referencing his prior misconduct with the victim's baby-sitter.⁵

The defendant did not preserve his evidentiary claim for our review. Our review of the record discloses that the defendant did not raise a specific prior misconduct objection to any part of the victim's testimony but, rather, objected to the testimony in question as "nonresponsive." "Appellate review of evidentiary rulings is limited to the specific legal ground raised by the objection of counsel at trial. . . . A specific objection is necessary to alert the trial court to purported error while there is time to correct it without ordering a retrial and to permit the opposing party to argue against the objection at trial." (Citations omitted.) State v. Goodrum, 39 Conn.App. 526, 543, 665 A.2d 159, cert. denied, 235 Conn. 929, 667 A.2d 554 (1995); see also United Technologies Corp. v. East Windsor, 262 Conn. 11, 30, 807 A.2d 955 (2002). The defendant does not assert that he is entitled to any extraordinary means of review of his unpreserved evidentiary claim, and we will not afford it review.

We also note that even if we were to afford review of the defendant's claim, it would not help the defendant. The testimony to which he takes exception, specifically that "[the defendant] did something and mom kicked [the baby-sitter] out," perhaps could lead to vague speculation but is not a clear expression of prior misconduct on the part of the defendant. (Emphasis added.) See, e.g., State v. Boykin, 74 Conn.App. 679, 687, 813 A.2d 143 ("[s]imply stated, the remark's lack of specificity leads us to conclude that the remark did not unfairly prejudice the defendant in the eyes of the jury"), cert. denied, 263 Conn. 901, 819 A.2d 837 (2003).

III

The defendant last claims that he was deprived of a fair trial as a result of prosecutorial impropriety, namely, that he "was prejudiced by the state's closing argument, which shows a pattern of pandering to the emotions and sympathies of the jury."⁶ We are not persuaded.

Before we examine the challenged remarks, we set forth our standard of review. "Prosecutorial [impropriety] claims invoke a two step analysis. First, the reviewing court must determine whether the challenged conduct did, in fact, constitute [an impropriety]. Second, if [an impropriety] occurred, the reviewing court must then determine if the defendant has demonstrated substantial prejudice.... In order to demonstrate this, the defendant must establish that the trial as a whole was fundamentally unfair and that the [impropriety] so infected the trial with unfairness as to make the conviction a denial of due process." (Citation omitted; internal quotation marks omitted.) State v. Pedro S., 87 Conn.App. 183, 187, 865 A.2d 1177, cert. denied, 273 Conn. 924, 871 A.2d 1033 (2005).

"Because the claimed prosecutorial [impropriety] occurred during closing arguments, we advance the following legal principles. [P]rosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments. . . . In determining whether such [an impropriety] has occurred, the reviewing court must give due deference to the fact that [c]ounsel 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...