State v. Rupar

• Decision Date: 28 December 2004
• Docket Number: No. 24202.,24202.
• Citation: 862 A.2d 352,86 Conn.App. 641
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Albert RUPAR.

862 A.2d 352

86 Conn.App. 641

STATE of Connecticut v. Albert RUPAR.

No. 24202.

Appellate Court of Connecticut.

Argued September 14, 2004.

Decided December 28, 2004.

Richard W. Callahan, special public defender, for the appellant (defendant).

Christopher T. Godialis, assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Elizabeth C. Leaming, supervisory assistant state's attorney, for the appellee (state).

SCHALLER, BISHOP and MIHALAKOS, Js.

MIHALAKOS, J.

The defendant, Albert Rupar, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the fourth degree in violation of General Statutes § 53a-73a(a)(1)(A) and risk of injury to a child in violation of General Statutes § 53-21(a)(2). On appeal, the defendant claims that the prosecutor committed misconduct that resulted in a denial of the defendant's due process rights to a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On July 14, 2001, the defendant attended a party at the seven year old victim's home.¹ The defendant, along with several other adults in attendance at the party, gave rides to children on his all-terrain vehicle around the seven acre property. The victim rode with the defendant a number of times throughout the evening, sometimes sitting on the back of the vehicle, behind the defendant, and sometimes sitting toward the front of the vehicle, between the defendant's legs. Every time the victim rode with the defendant, except for the first time, the defendant, using his left hand, touched her vagina both over and under her clothes. On the final ride, the defendant inserted his finger into her vagina. The defendant warned her not to tell anyone what had happened.

Despite the defendant's warning, the victim immediately told her mother that the defendant had "hugged her privates." After her mother questioned her, the victim then revealed that the defendant had touched her both over and under her clothes, and that the defendant had inserted his finger into her vagina. The victim's mother consulted with the victim's father, and the two called the police. Shortly thereafter, the police arrived at the victim's home. The victim was brought to the police station and interviewed. Late that evening, on July 15, 2001, the state police arrested the defendant at his home.

By substitute information, the defendant was charged with sexual assault in the first degree, sexual assault in the fourth degree and risk of injury to a child. The defendant's trial began on December 3, 2002. On December 10, 2002, the jury convicted the defendant of sexual assault in the fourth degree and risk of injury to a child. The defendant was acquitted of sexual assault in the first degree. On February 21, 2003, the court sentenced the defendant to a total term of eleven years incarceration, execution suspended after seven years, with twenty years probation. As a special condition of his probation, the defendant was ordered to register as a sex offender for ten years. This appeal followed. Additional facts will be set forth as necessary.

The defendant claims that his federal and state due process rights to a fair trial were violated as a result of numerous instances of prosecutorial misconduct. Specifically, the defendant claims that (1) the use of testimony by the appointed guardian ad litem improperly bolstered the victim's credibility, (2) the prosecutor, acting prior to the court's ruling on admissibility and in disregard of a court order, informed the jury of prejudicial, prior uncharged conduct, (3) in her closing argument, the prosecutor improperly commented on the defendant's failure to testify and improperly suggested that the state was subject to a lower burden of proof, (4) the prosecutor improperly introduced prejudicial matters to the jury by suggesting that the defendant was being investigated by the department of children and families (department) and that the defendant's lineage consisted of other child abusers, and (5) the prosecutor, by using only a small percentage of her allotted time for her closing argument and making a more substantial argument during her final closing argument, denied the defendant his right to rebut the state's main argument regarding the victim's credibility.

We must first set forth the applicable standard of review. "[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, and not the culpability of the prosecutor.... In determining whether the defendant was denied a fair trial [by virtue of prosecutorial misconduct] we must view the prosecutor's comments in the context of the entire trial." (Internal quotation marks omitted.) State v. Rizzo, 266 Conn. 171, 245-46, 833 A.2d 363 (2003). In other words, "[i]t is not the prosecutor's conduct alone that guides our inquiry, but, rather, the fairness of the trial as a whole." (Internal quotation marks omitted.) State v. Ceballos, 266 Conn. 364, 376, 832 A.2d 14 (2003).

"[I]n analyzing claims of prosecutorial misconduct, we engage in a two step analytical process. The two steps are separate and distinct: (1) whether misconduct occurred in the first instance; and (2) whether that misconduct deprived a defendant of his due process right to a fair trial. Put differently, misconduct is misconduct, regardless of its ultimate effect on the fairness of the trial; whether that misconduct caused or contributed to a due process violation is a separate and distinct question that may only be resolved in the context of the entire trial...." (Internal quotation marks omitted.) State v. Coney, 266 Conn. 787, 808, 835 A.2d 977 (2003).

In cases in which incidents of alleged prosecutorial misconduct were not objected to at trial, this court must apply the factors set out by our Supreme Court in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). See State v. Stevenson, 269 Conn. 563, 572-76, 849 A.2d 626 (2004).² "[A] reviewing court must apply the Williams factors to the entire trial, because there is no way to determine whether the defendant was deprived of his right to a fair trial unless the misconduct is viewed in light of the entire trial." State v. Stevenson, supra, at 573, 849 A.2d 626. "In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused in several factors. Among them are the extent to which the misconduct was invited by defense conduct or argument ... the severity of the misconduct ... the frequency of the misconduct ... the centrality of the misconduct to the critical issues in the case ... the strength of the curative measures adopted ... and the strength of the state's case." (Citations omitted.) State v. Williams, supra, at 540, 529 A.2d 653. In addition, defense counsel's failure to "object to one or more incidents of misconduct must be considered in determining whether and to what extent the misconduct contributed to depriving the defendant of a fair trial...." State v. Stevenson, supra, at 576, 849 A.2d 626.

I

We begin our analysis by first determining whether the prosecutor engaged in misconduct. The defendant's brief provides analysis of five instances of alleged misconduct. We will address each alleged act of misconduct in turn.

A Guardian Ad Litem Testimony

First, the defendant contends that the prosecutor called the victim's guardian ad litem to the witness stand and elicited improper testimony from her regarding the victim's veracity. The defendant asserts that the testimony was particularly damaging because the credibility of the victim was the ultimate issue. Moreover, the defendant claims that by eliciting testimony from the guardian ad litem regarding her appointment by the court, the prosecutor "shrouded the guardian ad litem with the authority and influence of the court...." Although the testimony of the guardian ad litem may have been improper, we conclude that it did not deprive the defendant of a fair trial.

In this case, the prosecutor called the guardian ad litem to the witness stand and asked her several questions regarding the victim's competency. The prosecutor asked the guardian ad litem to explain her role and to describe her first meeting with the victim. Testifying about her role, the guardian ad litem stated that she "always talk[s] about ... the seriousness of a case at hand so that [she] can get into the conversation as to whether or not the child really understands what it would mean to be telling the truth, what it would mean if they weren't sure of something, things like that." The prosecutor then asked if the guardian assessed the victim's ability to tell the truth. When the guardian answered that she had, the prosecutor asked a follow-up: "Did she seem to understand the distinction?" The guardian answered: "Oh, quite clearly she did. She knows that when you tell a lie, there are consequences, and we talked about those consequences in a couple of scenarios: in the school scenario, in the home scenario.... You know, how ... what would happen if you told mom a lie? What would happen if you told dad a lie? You know, what would happen if you told your friend a lie? Things like that." After the guardian ad litem described her meeting with the victim, the prosecutor asked the guardian ad litem if she believed that the victim was capable of coming to court. The guardian ad litem replied: "Yes, I did. She appeared to be very strong. She appeared to be a real independent thinker. She appeared to be relatively untarnished."

Here, the guardian ad litem discussed her assessment of the child's ability to appreciate the difference between the truth and a lie, focusing more on the child's competency than on her credibility.³ Nevertheless, a child witness is presumed to be competent. See General Statutes § 54-86h. Moreover,...