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STATE OF CONNECTICUT v. A. M.*

(AC 34910)

Lavine, Alvord and Harper, Js.

Argued October 16, 2014—officially released March 24, 2015

(Appeal from Superior Court, judicial district of

Danbury, Pavia, J.)

Bethany L. Phillips, for the appellant (defendant).

Jennifer F. Miller, special deputy assistant state’s

attorney, with whom, on the brief, were Stephen J.

Sedensky III, state’s attorney, and Colleen P. Zingaro,

assistant state’s attorney, for the appellee (state).
Opinion

HARPER, J. The defendant, A. M., appeals from the

judgment of conviction, rendered following a jury trial,

of attempt to commit sexual assault in the first degree

in violation of General Statutes §§ 53a-49 (a) (2) and

53a-70 (a) (2), three counts of risk of injury to a child

in violation of General Statutes § 53-21 (a) (2), two

counts of risk of injury to a child in violation of General

Statutes § 53-21 (a) (1), sexual assault in the first degree

in violation of General Statutes § 53a-70 (a) (2), and

sexual assault in the fourth degree in violation of General Statutes § 53a-73a. On appeal, the defendant claims

that (1) the trial court improperly denied his motion for

a judgment of acquittal because there was insufficient

evidence to sustain the jury’s verdict, (2) he was denied

his right to a fair trial as a result of prosecutorial impropriety that occurred during rebuttal argument, (3) the

court improperly determined that the complainant’s

confidential records should not be disclosed to the

defendant, (4) the court improperly permitted the state

to reopen the direct examination of the complainant,(5)

the court improperly allowed a video recorded forensic

interview (forensic video) to be admitted into evidence

under the tender years exception to the rule against

hearsay and under the Whelan rule,1 and (6) the court

violated his rights under the federal and state constitutions when it admitted the forensic video, specifically,

his right to confront the complainant under Crawford

v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed.

2d 177 (2004).2 We agree with the defendant in regard

to his second claim, and, therefore, reverse the judgment of conviction and remand the case for a new trial.

The jury reasonably could have found the following

facts. The defendant was dating the complainant’s

mother, H, and moved into H’s house with the complainant, and H’s two other children in the late summer of

2003. In August, 2009, the complainant told H’s cousin,

A.K., that the defendant had touched her inappropriately. Specifically, she told A.K. that the defendant inappropriately touched her buttocks while she was

cleaning dishes. After A.K. alerted H about the allegations, H allowed the defendant to ask the complainant

about the allegations, and he apologized if he ‘‘ever

touched [her] in any way . . . .’’

In March, 2010, a family member of H went to the

complainant’s father, J, and spoke to him about the

allegations. The next day, J spoke with the complainant

and, during their conversation, the complainant cried

and told him that the defendant had grabbed her buttocks. J reported the allegation to the Danbury Police

Department and spoke to Officer Joseph Pastrana. After

J reported the allegations to Pastrana, J and members

of the Danbury Police Department visited the complainant’s home in order to evaluate her well-being. At the

home, Pastrana spoke to the defendant, who denied
any wrongdoing, and the complainant spoke with a

female officer and informed that officer that the defendant had touched her inappropriately. At this time, for

her safety,the complainant was removed from the home

for two nights.

Pastrana then contacted the Danbury Police Department youth bureau as well as the Department of Children and Families. The defendant provided a sworn

statement to the youth bureau, in which he denied any

wrongdoing and hypothesized that the allegations perhaps stemmed from his strict parenting style. Meanwhile, on March 25, 2010, Donna Meyer, a forensic

interviewer and director of the Danbury Multi-Disciplinary Team (team), interviewed the complainant regarding the alleged sexual abuse. This interview was

videotaped as well as transcribed. The complainant told

Meyer of various events of sexual abuse by the defendant. The dates of these incidents initially were

described to Meyer as occurring after August, 2009, and

later were stated by the complainant to have occurred

before such time. The present matter commenced with

the execution of an arrest warrant on April 20, 2010.

The complainant further was examined on April 29,

2010, by Veronica Ron-Priola, a medical examiner for

child abuse cases. Ron-Priola testified at trial that there

was no physical evidence of sexual abuse, but stated

that a lack of evidence would not necessarily be inconsistent with the complainant’s allegations of sexual

abuse.3 After this examination, Ron-Priola spoke to the

team regarding her concern for the complainant.

The defendant’s trial began on March 30, 2012, and

concluded on May 3, 2012. The state called the complainant to testify. At this time, the complainant was

twelve years old. The complainant initially stated that

the defendant sexually assaulted her six or seven times

by inappropriately touching her buttocks. Later during

her testimony, the complainant stated that the defendant inappropriately touched her maybe two or three

times. During cross-examination, the complainant

stated that she had lied about what she had said to H,

regarding the defendant. Later during trial, the complainant refused to testify to any other incident involving the defendant other than when he allegedly touched

her buttocks. The defendant subsequently presented

witnesses during trial to attack the complainant’s credibility.

On May 3, 2012, the jury found the defendant guilty

of attempt to commit sexual assault in the first degree,

five counts of risk of injury to a child, sexual assault

in the first degree, and sexual assault in the fourth

degree. The defendant filed a motion for a judgment

of acquittal, which was denied. Thereafter, the court

sentenced the defendant to a total effective term of

twenty years imprisonment, execution suspended after

twelve years, followed by twenty years of probation
with special conditions. On August 7, 2012, the defendant filed the present appeal. Additional facts will follow as necessary.

I

The defendant first claims that the court improperly

denied his motion for a judgment of acquittal because

the evidence was insufficient to support his conviction.

We review this claim first due to the nature of the

remedy. ‘‘[I]f the defendant prevails on the sufficiency

claim, [he] is entitled to a directed judgment of acquittal

rather than to a new trial.’’ State v. Moore, 100 Conn.

App. 122, 126 n.2, 917 A.2d 564 (2007). The defendant

claims that because the forensic video was inadmissible

as evidence and the complainant’s testimony was inconsistent both in the forensic video and at trial, the evidence presented at trial was ‘‘insufficient to permit the

jury to find him guilty beyond a reasonable doubt.’’

We disagree.

‘‘Our standard of review for claims of insufficient

evidence is well settled. [W]e apply a two part test. First,

we construe the evidence in the light most favorable to

sustaining the verdict. Second, we determine whether

upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have

concluded that the cumulative force of the evidence

established guilt beyond a reasonable doubt. . . .

[P]roof beyond a reasonable doubt does not mean proof

beyond all possible doubt . . . nor does proof beyond

a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it

been found credible by the trier, would have resulted

in an acquittal. . . . On appeal, we do not ask whether

there is a reasonable view of the evidence that would

support a reasonable hypothesis of innocence. We ask,

instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.’’ (Internal quotation marks omitted.) State v. Cancel, 149 Conn.

App. 86, 95, 87 A.3d 618, cert. denied, 311 Conn. 954,

97 A.3d 985 (2014).

‘‘In evaluating evidence, the trier of fact is not

required to accept as dispositive those inferences that

are consistent with the defendant’s innocence. . . .

The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to

be reasonable and logical. . . . This does not require

that each subordinate conclusion established by or

inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . .

because this court has held that a [trier’s] factual inferences that support a guilty verdict need only be reasonable.’’ (Internal quotation marks omitted.) State v.

Jordan, 314 Conn. 89, 106–107, 101 A.3d 179 (2014).

The defendant’s sufficiency of the evidence claim is

premised on whetherthe jury believed the complainant.
‘‘We also are mindful that [q]uestions of whether to

believe orto disbelieve a competent witness are beyond

our review. As a reviewing court, we may not retry the

case or pass on the credibility of witnesses. . . . Our

review of factual determinations is limited to whether

those findings are clearly erroneous. . . . We must

defer to the [finder] of fact’s assessment of the credibility of the witnesses that is made on the basis of its

firsthand observation of their conduct, demeanor and

attitude.’’ (Internal quotation marks omitted.) State v.

James E., 154 Conn. App. 795, 802, A.3d (2015).

After weighing the credibility of the witnesses, it was

within the sole province of the jury to make a determination on the witness’ credibility in order to find against

the defendant. On the basis of the foregoing, we conclude that there was sufficient evidence for the jury

to have reached its verdict. Therefore, the defendant’s

insufficiency of the evidence claim fails.

II

Second, the defendant claims that he was denied his

right to a fair trial as a result of prosecutorial impropriety that occurred during rebuttal argument. Specifically,

the defendant argues that the prosecutor’s comments,

regarding the defendant’s failure to testify, constituted

prosecutorial impropriety and denied him a fair trial.

We agree.

The defendant challenges a string of comments made

by the prosecutor during rebuttal argument.4

In these

remarks, the prosecutor commented on the defendant’s

failure to testify twice when she stated:

‘‘[The Prosecutor]: . . . This is the other thing.

Counsel did not present his client to testify. That’s

their right guaranteed by the constitution if any of us

were accused. But there is evidence as to things that

he said. His sworn statement. Also, testimony by a couple of police officers as to what he said to them, and

that’s before you. . . .

‘‘You’ve got to look at the credibility of the defendant

as well. I mean, he didn’t testify. Again, that’s his right,

but there are some statements that are contained in the

evidence. One is which that I’ve just referred to was

his sworn statement as well as some statements by

the police that he made the night he was arrested.’’

(Emphasis added.)

The defendant claims on appeal that the comments

made by the prosecutor during rebuttal argument were

improper and deprived him of his constitutional right

to due process. We agree with the defendant and focus

our analysis on the prosecutor’s comments that referenced the defendant’s failure to testify.

We begin with our standard of review. ‘‘[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.’’ (Internal quotation marks omitted.) State v. Warholic, 278 Conn. 354, 361, 897 A.2d 569 (2006).

‘‘[Our Supreme Court has] previously acknowledged

that prosecutorial [impropriety] can occur in the course

of closing argument. . . . Such argument may be, in

light of all of the facts and circumstances, so egregious

that no curative instruction could reasonably be

expected to remove [its] prejudicial impact.’’ (Citations

omitted; internal quotation marks omitted.) State v.

Mills, 57 Conn. App. 202, 205, 748 A.2d 318, cert. denied,

253 Conn. 914, 915, 754 A.2d 163 (2000). When reviewing

whether prosecutorial impropriety occurred ‘‘during

closing argument, we ask whetherthe prosecutor’s conduct so infected the trial with unfairness as to make the

resulting conviction a denial of due process.’’ (Internal

quotation marks omitted.) Id.

A

In the first step of our analysis, we must determine

whether an impropriety occurred. ‘‘The ultimate test of

whether a prosecution argument indirectly and impermissibly comments on the defendant’s failure to testify

is whether, because of its language and context, the

jury would naturally and necessarily interpret it as comment on the defendant’s failure to testify.’’ (Internal

quotation marks omitted.) State v. Downing, 68 Conn.

App. 388, 398, 791 A.2d 649, cert. denied, 260 Conn. 920,

797 A.2d 518 (2002).

‘‘It is well settled that comment by the prosecuting

attorney . . . on the defendant’s failure to testify is

prohibited by the fifth amendment to the United States

constitution. Griffin v. California, 380 U.S. 609, 615,

85 S. Ct. 1229, 14 L. Ed. 2d 106, reh. denied, 381 U.S.

957, 85 S. Ct. 1797, 14 L. Ed. 2d 730 (1965). . . . Our

legislature has given statutory recognition to this right

by virtue of its enactment of . . . [General Statutes]

§ 54-84. In determining whether a prosecutor’s comments have encroached upon a defendant’s right to

remain silent, we ask: Was the language used manifestly

intended to be, or was it of such character that the jury

would naturally and necessarily take it to be a comment

on the failure of the accused to testify? . . . Further,

in applying this test, we must look to the context in

which the statement was made in order to determine

the manifest intention which prompted it and its natural

and necessary impact upon the jury. . . . Finally, [w]e

also recognize that 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.’’(Internal quotation marks omitted.) State v. Parrott, 262 Conn. 276,

292–93, 811 A.2d 705 (2003).

In the present case, the prosecutor’s comments dis-
cussing the defendant’s failure to testify were a clear

violation of § 54-84.5 The statute is unambiguous that

a prosecuting official under any circumstance ‘‘shall

not’’ comment upon the defendant’s refusal to testify.

General Statutes § 54-84. Here, when the prosecutor

stated, ‘‘[y]ou’ve got to look at the credibility of the

defendant as well. I mean, he didn’t testify,’’ she spoke

about the defendant’s failure to testify while simultaneously attacking his credibility because he chose not to

testify. This court has stated that ‘‘[a]n indirect remark

by the prosecuting attorney which draws the jury’s

attention to the fact that the accused failed to testify

may also violate the accused’s right.’’ (Internal quotation marks omitted.) State v. Colon, 70 Conn. App. 707,

712–13, 799 A.2d 317, cert. denied, 261 Conn. 933, 806

A.2d 1067 (2002). Although previously in her rebuttal

argument, the prosecutor acknowledged the defendant’s constitutional right not to testify by stating,

‘‘[c]ounsel did not present his client to testify. That’s

their right guaranteed by the constitution if any of us

were accused,’’ in the context of the entire trial, the

prosecutor’s comments violated the defendant’s due

process rights. These comments were made by the prosecutor during rebuttal argument, specifically in relation

to the defendant’s credibility and his failure to testify.

Accordingly, we conclude that the commentary regarding the defendant’s failure to testify was of such character that the jury would naturally and necessarily take

it to be a comment on the failure of the accused to

testify and, therefore, such commentary ‘‘improperly

and impliedly encouraged the jury to infer the defendant’s guilt.’’ State v. Angel T., 292 Conn. 262, 286, 973

A.2d 1207 (2009).

B

In step two of our analysis, we must determine

whetherthe prosecutor’s improper statements deprived

the defendant of his due process right to a fair trial.

This analysis requires the court to examine the factors

set forth in State v. Williams, 204 Conn. 523, 540, 529

A.2d 653 (1987), to determine whether the prosecutor’s

conduct rose to a level that makes the resulting conviction a denial of due process. The Williams factors

include ‘‘the extent to which the [impropriety] was

invited by defense conduct or argument . . . the severity of the [impropriety] . . . the frequency of the

[impropriety] . . . the centrality of the [impropriety]

to the critical issues in the case . . . the strength of

the curative measures adopted . . . and the strength

of the state’s case.’’ (Internal quotation marks omitted.)

State v. Mills, supra, 57 Conn. App. 205–206.

We start by examining the three Williams factors

most pertinent to our analysis: the severity of the improprieties, the centrality of the improprieties to the critical

issues of the case, and the strength of the state’s case.

We begin our analysis with the severity of the impro-
prieties.

In the present case, the prosecutor’s impropriety was

severe because the prosecutor commented on the

defendant’s failure to testify and instructed the jury to

look at the credibility of the defendant because of his

choice not to testify. In doing so, the prosecutor directly

infringed upon the defendant’s fifth amendment right

not to testify. The prosecutor mentioned the defendant’s failure to testify not once, but twice, during rebuttal argument. Our Supreme Court has stated that

prosecutors may not express their opinions, even in an

indirect manner, regarding the credibility of witnesses.

See State v. Williams, supra, 204 Conn. 541. Further,

our Supreme Court has stated that ‘‘[a]n indirect comment in argument to the court on a point of law is less

serious than a comment in jury summation that asks

the jury to infer that the defendant’s silence is evidence

of guilt.’’ (Internal quotation marks omitted.) State v.

Parrott, supra, 262 Conn. 293. In this case, the prosecutor specifically asked the jury to look at the credibility

of the defendant because he did not testify. ‘‘Such

expressions of personal opinion are a form of unsworn

and unchecked testimony. . . . Furthermore, it is not

the state’s attorney’s right or duty to stigmatize a defendant.’’ (Citation omitted; internal quotation marks omitted.) State v. Mills, supra, 57 Conn. App. 207.

A prosecutor, by virtue of her position with the state,

can wield great influence over a jury through expressions of her opinion. ‘‘These expressions of opinion are

particularly difficult for the jury to ignore because of

the special position held by the prosecutor. . . . The

jury is aware that [she] has prepared and presented the

case and consequently, may have access to matters

not in evidence . . . which the jury may infer to have

precipitated the personal opinions.’’ (Citations omitted;

internal quotation marks omitted.) Id., 208. In the present case, because of the prosecutor’s position as a

public official, the fact that she infringed upon the

defendant’s fifth amendment right, and the fact that the

statements were made during the prosecutor’s rebuttal

argument, we conclude that such comments were not

only improper, but rose to the level of a severe impropriety.

Next, we look to the centrality of the improprieties

to the critical issues of the case and the strength of the

state’s case. In State v. Ceballos, 266 Conn. 364, 415–17,

832 A.2d 14 (2003), our Supreme Court, in reversing a

judgment of conviction after finding that the prosecutor’s improprieties deprived the defendant of a fair trial,

discussed these two factors together, and we find it

appropriate to do so here. The critical issue in this case

was credibility, whether the jury was to believe the

defendant or the complainant. ‘‘Our law is well settled

that it is a jury’s duty to determine the credibility of

witnesses and to do so by observing firsthand their
conduct, demeanor and attitude.’’ State v. Johnson, 288

Conn. 236, 265, 951 A.2d 1257 (2008). The prosecutor’s

second mention of the defendant’s not having testified,

‘‘[y]ou’ve got to look at the credibility of the defendant

as well. I mean, he didn’t testify,’’ links the issue of the

credibility of the defendant directly to the fact that he

did not testify. By commenting on the defendant’s failure to testify during rebuttal argument, the prosecutor

implied to the jury that it should glean a negative inference from this fact. Specifically, the implication was

that the jury should infer that the defendant, by not

testifying, therefore was not credible and therefore

was guilty.

The prosecutor’s improper comments during rebuttal

argument were made in conjunction with the fact that

the state did not have a strong case. In Ceballos, our

Supreme Court stated: ‘‘[A] child sexual abuse case

lacking conclusive physical evidence, when the prosecution’s case rests on the credibility of the [complainant] . . . is not particularly strong . . . .’’ (Internal

quotation marks omitted.) State v. Ceballos, supra, 266

Conn. 416. Similarly, the improprieties in this case were

directly connected to the critical issue of the credibility

of the defendant. Our Supreme Court further stated:

‘‘In our view, without independent physical evidence

to prove that the defendant had sexually assaulted [the

complainant], or even that [the complainant] had been

sexually assaulted at all, the significance of the [prosecutor’s] improper conduct increases considerably.’’

(Internal quotation marks omitted.) Id., 416–17. This

case is factually similar to Ceballos; there was no physical evidence of the alleged abuse, the testimony was

conflicting as to the complainant’s credibility, and there

was only one witness, the complainant, and the complainant refused to answer all of the questions put to

her.

In the present case, the strength of the state’s case

hinged upon the credibility of the complainant. This

court, in State v. Jones, 139 Conn. App. 469, 56 A.3d

724 (2012), cert. granted, 307 Conn. 957, 958, 59 A.3d

1192 (2013), analyzed the effect that the weakness of

the state’s case has on a claim of prosecutorial impropriety. In Jones, ‘‘[t]he case turned entirely on the credibility of the complainant against that of the defendant.

The state did not present any conclusive physical evidence or independent testimony that was not affected

by the prosecutorial improprieties. . . . Our Supreme

Court has ruled that a case turning entirely on the credibility of the [complainant] is not strong.’’(Citation omitted; internal quotation marks omitted.) Id., 481.

Moreover, in State v. Angel T., supra, 292 Conn. 293,

our Supreme Court ruled that the state’s case ‘‘was not

sufficiently strong so as to not be overshadowed by the

impropriety.’’ In that case, the state’s case relied on the

testimony of a minor child, as well as the testimony of

two corroborating witnesses. Id. In this case, unlike in
Angel T., there are no corroborating witnesses, only

the testimony of the complainant, and therefore the

state’s case was not strong.

This case does not have ‘‘substantial evidence supporting a conviction that is unaffected by the [violations

of State v. Singh, 259 Conn. 693, 793 A.2d 226 (2002)],

which could ameliorate their prejudice, such as a confession . . . testimony of accomplices . . . testimony

of eyewitnesses other than the [complainant] . . . or

physical evidence corroborating the complainant’s testimony over the defendant’s testimony . . . .’’ (Citations omitted; internal quotation marks omitted.) State

v. Jones, supra, 139 Conn. App. 482. Therefore, we conclude that the state’s evidence, while sufficient to result

in a conviction, was not particularly strong. See also

State v. Singh, supra, 724.

The final three Williams factors, the extent to which

the impropriety was invited by defense conduct or argument, the frequency of the impropriety, and the strength

of the curative measures adopted, are collectively given

less weight in this case, given the facts. See State v.

Jones, supra, 139 Conn. App. 482. ‘‘Although the

strength of the state’s case, the centrality of the improprieties and the severity of the improprieties propels

our analysis, we give due consideration to the other

Williams factors.’’ Id., 482 n.14.6 The frequency of the

impropriety and whether or not a curative measure was

adopted will be discussed in turn.

The prosecutor’s impropriety was limited to rebuttal

argument. While looking only at the prosecutor’s comments regarding the defendant’s failure to testify, the

improper comments occurred twice during the state’s

rebuttal argument. Such comments were not pervasive

throughout the entire trial, but they do not need to be

in orderto violate the defendant’s due process right. See

State v. Ceballos, supra, 266 Conn. 376. (‘‘[m]oreover,

prosecutorial misconduct of constitutional proportions

may arise during the course of closing argument,

thereby implicating the fundamental fairness of the trial

itself’’ [internal quotation marks omitted]).

Finally, we look to whether a curative measure was

adopted and the strength of such curative measure.

The state emphasizes, and we acknowledge, that the

defendant did not object to the prosecutorial conduct

at trial; but this alone is not fatal to his case. See State

v. Angel T., supra, 292 Conn. 289. The state also contends that any impropriety was cured by the court’s

jury instruction.7 Yet, ‘‘a general instruction does not

have the same curative effect as a charge directed at

a specific impropriety, particularly when the [impropriety] has been more than an isolated occurrence.’’ State

v. Ceballos, supra, 266 Conn. 413. In this case, although

the court instructed the jury properly, it was a general

jury instruction, and was not directed at any specific

impropriety, and therefore the instruction was not cura-
tive in nature.

This case is similar to Jones. In Jones, the case fell

‘‘within a line of cases in which our Supreme Court

. . . found that prosecutorial impropriety resulted in

substantial prejudice depriving a defendant of a fairtrial

and due process, even in the absence of an objection or

request for specific curative instructions from a defendant. . . . [I]n each of these cases, the defendant failed

to object to or request curative instructions for Singh

violations, the state’s case was not strong and amounted

to a credibility contest between the defendant and one

or two of its witnesses, the impropriety augmented the

state’s case on a central issue of credibility rather than

a peripheral point, the impropriety was repeated on

cross-examination and in closing arguments, and the

impropriety was uninvited. . . . In cases that would

otherwise present a similar Williams analysis, our

Supreme Court has not found substantial prejudice

where one or more of these Williams factors is absent.’’

(Citations omitted.) State v. Jones, supra, 139 Conn.

App. 483–84.

The facts in Jones are similar to the facts in the

present case, leading us to conclude, as this court did

in Jones, that the defendant’s due process rights were

violated by the prosecutorial impropriety occurring during rebuttal argument. Therefore, we conclude that as

to the final three Williams factors, the improprieties

were not invited, no curative instructions were given

because they were not requested, the court’s final jury

instruction that the jury should not draw an adverse

inference from the defendant’s failure to testify did not

cure the prosecutor’s improper comments, and the

improprieties were not pervasive, but confined to rebuttal argument, a time at which the defendant had no

other opportunity to refute such comments.

Taking into consideration the factors setforth in State

v. Williams, supra, 204 Conn. 540, we hold that the

prosecutorial impropriety in the present case deprived

the defendant of his due process right to a fair trial. The

prosecutorial impropriety attacked the central issue in

the case, the credibility of the defendant, when commenting on his failure to testify. Therefore, we cannot

say there is no reasonable likelihood that the verdict

would have been different absent the improprieties. See

State v. Jones, supra, 139 Conn. App. 485. Accordingly,

because the defendant was deprived of his constitutional right to a fair trial, we reverse the judgment of

conviction and remand the case to the trial court for a

new trial.

III

Third, the defendant claims that the court improperly

determined that it should not disclose to the defendant

the complainant’s confidential records, which included

her medical, mental health, educational, and Depart-
ment of Children and Families records. Because this

issue is likely to arise on remand, we briefly discuss

it here and conclude that the court did not abuse its

discretion. In State v. Liborio A., 93 Conn. App. 279,

889 A.2d 821 (2006), this court noted: ‘‘While we are

mindful that the defendant’s task to lay a foundation

as to the likely relevance of records to which he is not

privy is not an easy one, we are also mindful of the

witness’ legitimate interest in maintaining, to the extent

possible, the privacy of her confidential records. . . .

On review, we must determine whether the trial court’s

decision constituted an abuse of discretion. . . . In

making such a determination, this court must conduct

an in camera inspection of the sealed records. . . .

‘‘The linchpin of the determination of the defendant’s

access to the records is whether they sufficiently disclose material especially probative of the ability to comprehend, know and correctly relate the truth . . . so

as to justify breach of their confidentiality . . . .

Whether and to what extent access to the records

should be granted to protect the defendant’s right of

confrontation must be determined on a case by case

basis. . . . [W]hen the trial court has reviewed the

records in camera, access to the records must be left

to the discretion of the trial court which is better able

to assess the probative value of such evidence as it

relates to the particular case before it . . . and to

weigh that value against the interest in confidentiality

of the records.’’ (Citations omitted; internal quotation

marks omitted.) Id., 289–90.

After a careful review of the records, we determine

that the information contained in the records would

not shed light on the ability of the complainant to comprehend, know and correctly relate the truth. We therefore conclude that the court did not abuse its discretion

in its determination that the complainant’s confidential

records should not be disclosed to the defendant.

The judgment is reversed and the case is remanded

for a new trial.

In this opinion the other judges concurred.

* In accordance with our policy of protecting the privacy interests of the

complainants of sexual abuse and the crime of risk of injury to a child, we

decline to use the defendant’s full name or to identify the complainant or

others through whom the complainant’s identity may be ascertained. See

General Statutes § 54-86e.

1 See 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).

2 Because we reverse the judgment of the court on the defendant’s claim

of prosecutorial impropriety, we do not reach claim four, as it is unlikely

to arise on retrial. Additionally, the court admitted the forensic video into

evidence under three exceptions to the hearsay rule: the tender years exception, the rule of 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), and the medical

treatment exception. On appeal, the defendant did not challenge the admission of the forensic video pursuant to the medical treatment exception.

Therefore, we do not discuss claims five and six raised by the defendant,

which involve the admission of the forensic video. ‘‘[W]here alternative

grounds found by the reviewing court and unchallenged on appeal would

support the trial court’s judgment, independent of some challenged ground,
the challenged ground that forms the basis of the appeal is moot because

the court on appeal could grant no practical relief to the complainant.’’

(Internal quotation marks omitted.) Horenian v. Washington, 128 Conn.

App. 91, 99, 15 A.3d 1194 (2011).

3 Ron-Priola testified as to what the complainant explained to her prior

to her examination: ‘‘[The complainant stated] [t]hat [the defendant] had

touched her breasts. She pointed to her genitals, she didn’t want to say the

name . . . and her buttocks. . . . She told me that he had tried to put his

thing in her butt, and I asked her what she meant by his thing, and she was

very reluctant to say it, and I said, the penis, and she said yes, and he tried

to put it in her butt, but he couldn’t.’’

4 The defendant also claims that the prosecutor improperly discussed the

defendant’s failure to put on a defense:

‘‘[The Prosecutor]: . . . Now, one of the things that—that counsel

touched on quickly in his closing argument was about the police investigation, and it was two weeks long, this and that. I don’t know if you felt this

way or you thought this way, but when I was sitting here listening to how

John Caputo with forty years of experience in law enforcement, twenty

with state police and twenty on his own as a private investigator, not one

person came in here and said, ‘[the complainant] told me this didn’t happen.’

Not one. He didn’t come up with—I was waiting for what was going to be

said. Was there something? Was there someone that said, ‘[the complainant]

told me in secret that this didn’t happen’? No.

‘‘I went, that’s it? Two years of an investigation, and that’s it? And they

don’t have an obligation to put a case on. It’s my burden of proof. They

don’t want to put a case on, that’s fine. But when you endeavor to put one

on, and this is all the evidence you come up with, you’ve got to question

two years of looking, and that’s it?

‘‘Now, it comes down, I think, to credibility. Who do you believe? Because

there’s no physical evidence, but there is testimony from witnesses. You’re

gonna judge their credibility . . . .’’

Because we find that the other comments by the prosecutor were improper

and deprived the defendant of a fair trial, we do not address this comment.

5 General Statutes § 54-84 provides in relevant part: ‘‘(a) Any person on

trial for crime shall be a competent witness, and at his or her option may

testify or refuse to testify upon such trial. The neglect or refusal of an

accused party to testify shall not be commented upon by the court or

prosecuting official, except as provided in subsection (b) of this section.

‘‘(b) Unless the accused requests otherwise, the court shall instruct the

jury that they may draw no unfavorable inferences from the accused’s failure

to testify. In cases tried to the court, no unfavorable inferences shall be

drawn by the court from the accused’s silence.’’

6

In the present case, the defendant claims that the improprieties were

not invited. After the state’s concession at oral argument and our review

of the record, it is clear that the state did not present any arguments to

contest the defendant’s claim. We therefore agree that the improprieties

were not invited.

7 The court stated in its general instruction: ‘‘Now, the defendant has

elected not to testify in this particular case. An accused has the right and

the option to testify or not to testify at his or her own trial, and is under

no obligation to testify. He has a constitutional right that is protected by

the [United States] as well as the Connecticut constitutions not to testify,

and you may draw no unfavorable inferences from the defendant’s choice

not to testify in this particular instance.’’