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STATE OF CONNECTICUT v. JODY GRISWOLD

(AC 35743)

DiPentima, C. J., and Prescott and Flynn, Js.

Argued February 17—officially released October 20, 2015

(Appeal from Superior Court, judicial district of

Hartford, geographical area number twelve, Fuger, J.)

Alice Osedach, assistant public defender, with whom

was Alexander Ahrens, certified legal intern, for the

appellant (defendant).

Kathryn W. Bare, assistant state’s attorney, with

whom, on the brief, were Gail P. Hardy, state’s attorney, and Anthony J. Spinella, assistant state’s attorney,

for the appellee (state).
Opinion

PRESCOTT, J. A jury found the defendant, Jody Griswold, guilty of two counts of sexual assault in the fourth

degree in violation of General Statutes § 53a-73a (a) (1)

(A) and two counts ofrisk of injury to a child in violation

of General Statutes § 53-21. During his trial and over

his objection, the trial court admitted video recordings

of forensic interviews of the two victims,1 as well as

written summaries of the interviews, under the tender

years and medical diagnosis and treatment exceptions

to the hearsay rule. The defendant now appeals from

the judgment of conviction, claiming that (1) the court

improperly admitted the videos and summaries in violation of the standard set forth in State v. Maguire, 310

Conn. 535, 78 A.3d 828 (2013), a decision released by

our Supreme Court after the defendant’s trial, and (2)

prosecutorial impropriety deprived him of his right to

a fair trial.

We agree with the defendant that, pursuant to the

stringent standard explicated in Maguire, the court

improperly admitted the videos of the forensic interviews and their attendant written summaries under the

tender years exception to the hearsay rule. Nevertheless, we conclude that the court properly admitted the

videos and summaries under the medical diagnosis and

treatment exception. We further conclude that prosecutorial impropriety did not deprive the defendant of his

right to a fair trial. Accordingly, we affirm the judgment

of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. The defendant

was arrested after the victims, J, age eight, and her

sister, A, age ten, accused him of touching them inappropriately at a pool party hosted by their mother, a

childhood friend of the defendant. The victims alleged

that the defendant exposed his penis to J, touched her

vagina over her bathing suit, and touched A’s chest over

her bra but under her clothing while alone with the

victims in A’s bedroom. They further reported that the

defendant committed similar acts during a camping trip

when he rubbed J’s chest under her clothes and exposed

himself to A.

Shortly after reporting the defendant’s conduct to

their mother, A and J underwent forensic interviews

by members of a multidisciplinary investigative team

(MIT)2 at the Greater Hartford Children’s Advocacy

Center (advocacy center) at Saint Francis Hospital and

Medical Center in Hartford. Lisa S. Murphy-Cipolla, the

clinical child interview supervisor at the advocacy center, interviewed A. Erin Byrne, a clinical child interview

specialist, interviewed J. Both victims repeated their

allegations againstthe defendant during theirrespective

interviews. In accord with the advocacy center’s standard practice, the interviews were video recorded, and
DVD copies were provided to the state.

The defendant subsequently moved in limine to preclude the state from introducing A’s and J’s forensic

interview videos during trial, arguing that they constituted inadmissible hearsay and were unfairly prejudicial

to him. The state responded that the videos were admissible under two exceptions to the hearsay rule: the

tender years exception, codified in § 8-10 of the Connecticut Code of Evidence, and the medical diagnosis

and treatment exception, codified in § 8-3 (5) of the

Connecticut Code of Evidence. In accordance with the

provisions of § 8-10 of the Connecticut Code of Evidence, the trial court, Fuger, J., held a hearing outside

the presence of the jury to determine the videos’ admissibility.

At the hearing, both Murphy-Cipolla and Byrne testified with respect to the interview process at the advocacy center. Murphy-Cipolla testified substantially to

the following: the advocacy center conducts interviews

of children alleging abuse to ‘‘elicit clear and accurate

information, minimize any additional trauma, and make

recommendations for a medical exam and/or mental

health treatment.’’ The advocacy center tapes interviews fortwo primary reasons: first, so that the children

‘‘don’t have to talk over and over and over again,’’ and

second, to provide a reference for the interviewers

when they create their reports. Although MurphyCipolla is not employed by any police department, she

meets with law enforcement officers and employees of

the Department of Children and Families (department)

before each interview. Law enforcement officers and

department employees then observe the interview as

it takes place through a one-way mirror. In this case,

a detective from the East Hartford Police Department

and an investigative social worker from the department

observed A’s interview. At the interview’s conclusion,

Murphy-Cipolla confers with the investigators again to

‘‘make sure that [they] hear the same things’’ and to

solicit additional questions from them. Consistent with

this practice, Murphy-Cipolla consulted with the detective and social worker observing A’s interview, although

she could not recall the content of their discussion. At

the conclusion of each interview, the child is offered a

physical examination and receives a recommendation

for mental health evaluation. Following A’s interview,

Murphy-Cipolla recommended that she receive counseling and a medical evaluation.

Byrne testified that interviews are conducted ‘‘[t]o

gather information for medical purposes,’’ a point she

emphasized repeatedly throughout her testimony. She

stated that the primary purpose of videotaping interviews is ‘‘to reduce trauma so that the children don’t

have to be reinterviewed’’ and ‘‘so that the video can

serve as the child’s statement.’’ Byrne further elaborated that ‘‘part of the reason why [the advocacy center]
videotape[s] the interview is so that it would serve as

a child’s . . . statement in the event that something

. . . may go to a next level.’’ She explained that law

enforcement officials and department investigators

observe interviews through a one-way mirror‘‘to reduce

the trauma to the child so they don’t have to be reinterviewed by anyone else.’’ Like Murphy-Cipolla, Byrne

also testified that at each interview’s conclusion, she

consults with the law enforcement officials and department investigators who observed the interview to determine whether they ‘‘have anything else that [they] think

that [she] should ask,’’ a practice she adhered to during

her interview with J. During cross-examination by

defense counsel, Byrne recalled asking only one question about J’s physical health, specifically, ‘‘if she had

any worries about her body.’’ She additionally admitted

that these questions are typically asked at the end of

each interview. Murphy-Cipolla recalled recommending

that J receive counseling and that J had received a

medical examination at the advocacy center following

her interview. Finally, Murphy-Cipolla confirmed that

law enforcement and department investigators receive

video copies of interviews for use in theirinvestigations.

At the conclusion of the hearing, the court denied

the defendant’s motion in limine, concluding that both

the tender years exception and the medical diagnosis

and treatment exception to the hearsay rule were applicable. In announcing its ruling, the court specifically

found that the statements in the videos were made

shortly after the alleged incident, that they contained

guarantees of trustworthiness based on the testimony

of Murphy-Cipolla and Byrne, and that the videos were

not made in preparation for a legal proceeding.

Pursuant to the court’s ruling, and after A and J testified at trial, the state played portions of the forensic

interview videos for the jury.3 Additionally, the court

admitted, over the defendant’s objection, written interview summaries created by Murphy-Cipolla and Byrne

following theirinterviews of the victims. The jury subsequently found the defendant guilty of two counts of

sexual assault in the fourth degree and two counts of

risk of injury to a child. The court rendered judgment

in accordance with the jury’s verdict and imposed a

total effective sentence of forty years incarceration,

execution suspended after twenty years, and ten years

probation. This appeal followed. Additional facts shall

be set forth as needed.

The defendant raises two claims on appeal. First, he

claims that the court improperly admitted videos of the

victims’ forensic interviews and the interview summaries. Second, he claims that the prosecutor made several

improper statements to the jury during the state’s rebuttal argument and thereby deprived him of his right to

a fair trial. For the following reasons, we reject both

of these claims.
I

ADMISSION OF FORENSIC INTERVIEW

VIDEOS AND SUMMARIES

The defendant first claims that the court improperly

admitted the videos of the victims’ forensic interviews,

as well as the interview summaries generated by Murphy-Cipolla and Byrne, underthe tender years and medical diagnosis and treatment exceptions to the hearsay

rule.4 More specifically, he claims that, pursuant to the

objective standard described in State v. Maguire, supra,

310 Conn. 535, the videos and summaries contain testimonial hearsay and, therefore, fall outside both of the

hearsay exceptions relied upon by the state. The state

argues in response that the videos and accompanying

summaries do not contain testimonial hearsay because

the essential purpose of the interviews was to provide

the victims with medical treatment. Alternatively, the

state contends that any error in admitting the videos

or summaries was harmless. We agree with the defendant that the court improperly admitted the videos of

the victims’ forensic interviews, as well as the interview

summaries, under the tender years exception of the

hearsay rule. We disagree with the defendant, however,

that the court improperly admitted the videos and summaries under the medical diagnosis and treatment

exception.

We begin our analysis of the defendant’s claim by

setting forth the standard of review and relevant legal

principles. ‘‘To the extent [that] a trial court’s admission

of evidence is based on an interpretation of the Code

of Evidence, our standard of review is plenary. For

example, whether a challenged statement properly may

be classified as hearsay and whether a hearsay exception properly is identified are legal questions demanding

plenary review. . . . We review the trial court’s decision to admit evidence, if premised on a correct view

of the law, however, for an abuse of discretion. . . .

In other words, only after a trial court has made the

legal determination that a particular statement is or is

not hearsay, or is subject to a hearsay exception, is it

vested with the discretion to admit or to bar the evidence based upon relevancy, prejudice, or other legally

appropriate grounds related to the rule of evidence

under which admission is being sought.’’ (Citation omitted; internal quotation marks omitted.) State v. Miguel

C., 305 Conn. 562, 571–72, 46 A.3d 126 (2012).

With respect to the merits of the defendant’s claim,

‘‘[i]t is well settled that . . . [a]n out-of-court statement

offered to prove the truth of the matter asserted is

hearsay and is generally inadmissible unless an exception to the general rule applies.’’ (Internal quotation

marks omitted.) State v. Carrion, 313 Conn. 823, 837,

100 A.3d 361 (2014). Section 8-10 of the Connecticut

Code of Evidence,5 known as the tender years excep-
tion, excepts from the hearsay rule a ‘‘statement by a

child under thirteen years of age relating to a sexual

offense committed against that child, or an offense

involving physical abuse committed against that child

by a person or persons who had authority or apparent

authority overthe child,’’ provided, inter alia, ‘‘the statement was not made in preparation for a legal proceeding

. . . .’’ Similarly, § 8-3 (5) of the Connecticut Code of

Evidence6 provides that statements made for the purpose of obtaining a medical diagnosis or treatment are

not precluded from admission by the hearsay rule. We

address the applicability of each of these exceptions

in turn.7

A

Tender Years Exception

Our Supreme Court has previously recognized that

the tender years exception to the hearsay rule must be

applied ‘‘consistently with the sixth amendment bar

against testimonial hearsay, as explained in Crawford

[v. Washington, 541 U.S. 36, 68–69, 124 S. Ct. 1354, 158

L. Ed. 2d 177 (2004)].’’8 State v. Maguire, supra, 310

Conn. 564–65. As the court explained, the ‘‘[t]he prohibition of the tender years exception against statements

made in preparation of a legal proceeding is simply

another way of saying that, to be admissible, the statement must be nontestimonial for purposes of Crawford.’’ Id., 565. Thus, ‘‘the standard of admissibility

under Crawford is the same as the standard to be

applied under the tender years exception.’’ Id. The

requirement for admission under this exception that

the statement be nontestimonial applies even in cases

that do not raise a confrontation clause issue.

The task of determining whether a statement is testimonial has not always been straightforward, due in

large part to the continually evolving nature of the

United States Supreme Court’s Crawford jurisprudence. At the time that the trial court in the present

case considered the issue, the leading Connecticut case

addressing the admissibility of statements made during

forensic interviews was State v. Arroyo, 284 Conn. 597,

935 A.2d 975 (2007). In that case, our Supreme Court

determined that statements made during the course of

a forensic interview of a minor victim of a sexual assault

were nontestimonial and, therefore, not barred by the

confrontation clause of the sixth amendment. Id., 616.

Because Arroyo served as highly pertinent authority at

the time of the trial court’s ruling on the defendant’s

motion in limine in the present case, we discuss it, as

well as subsequent cases implicating the court’s analysis in Arroyo, in detail here.

The five year old victim in Arroyo was examined

at Yale-New Haven Hospital after complaining to her

mother about irritation in her vaginal area, as well as

various other symptoms. Id., 602. The hospital initially
diagnosed her with a urinary tract infection and prescribed antibiotics; id.; but her symptoms persisted and

she subsequently returned for further treatment. Id.,

602–603. Following testing, medical personnel determined the cause of the victim’s symptoms to be chlamydia. Id., 603. Despite additional antibiotics, the

victim’s symptoms continued for approximately five

more months. Id.

During this time, various hospital personnel, social

workers, the victim’s kindergarten teacher, and an

investigator for the department interviewed the victim.

Id. After the victim tested positive for chlamydia a second time, the department investigator took the victim

to the Yale Sexual Abuse Clinic (clinic) at Yale-New

Haven Hospital, where she was interviewed on three

occasions by a forensic interviewer. Id., 603–606. At

least two of these interviews were recorded using a

recording device provided by the police, and a member

of law enforcement observed the interviews through a

one-way mirror as they occurred. Id., 626. During the

third interview, the victim described several instances

in which the defendant had sexually assaulted her. Id.,

605–606. The state subsequently charged the defendant

with, inter alia, sexual assault in the first degree and

risk of injury to a child. Id., 607.

At the defendant’s trial, the court admitted the statements made by the victim during her forensic interviews. Id., 625. The jury thereafter found the defendant

guilty of, inter alia, sexual assault in the first degree

and risk of injury to a child. Id., 600. He appealed from

his conviction, arguing that the statements recounted

by the clinic interviewer were testimonial hearsay and,

thus, barred by Crawford.

9

Id., 601.

The court rejected the defendant’s Crawford claim,

and concluded that the statements were not testimonial

hearsay. Id., 621. In making this determination,the court

in Arroyo relied principally on the United States

Supreme Court’s decision in Davis v. Washington, 547

U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006), in

which that court attempted to clarify the meaning of

the term ‘‘testimonial’’ for Crawford purposes. State v.

Arroyo, supra, 284 Conn. 626–30. On the basis of its

review of Davis, the court in Arroyo concluded that

‘‘the determining factor resolving whether the subject

statements are testimonial or nontestimonial is the primary purpose of the interrogation between the declarant and the witness whose testimony the state later

seeks to introduce regarding the declarant’s statements;

that is, whether the interrogation is primarily intended

to provide assistance to the declarant or to further

investigation and preparation for prosecution.’’ Id., 629.

The court further concluded that ‘‘[d]eclarants who

make statements, even regarding a possible crime, in

order to obtain assistance, do not do so with the intent

or expectation of assisting the state in building a case
against a defendant, nor do the recipients of such statements act with such intent or expectation. As the

[United States Supreme Court] stated in Davis, when

making statements in order to obtain emergency assistance, ‘[the victim] simply was not acting as a witness;

she was not testifying. . . . No witness goes into court

to proclaim an emergency and seek help.’ . . . Davis

v. Washington, supra, [828]. Thus, in focusing on the

primary purpose of the communication, Davis provides

a practical way to resolve what Crawford had identified

as the crucial issue in determining whether out-of-court

statements are testimonial, namely, whether the circumstances would lead an objective witness reasonably

to believe that the statements would later be used in a

prosecution.’’ State v. Arroyo, supra, 630.

With these principles in mind, the court in Arroyo

identified several facts on which it based its conclusion

that the victim’s statements were nontestimonial. First

and foremost, the court noted that the clinic’s forensic

interviewers were ‘‘an integral part of the chain of medical care’’; id., 633; because they were, inter alia, paired

with a medical care provider, and participated in diagnosing and formulating treatment plans for victims. Id.,

632–33. The court also noted that the clinic interviewer

in Arroyo had specifically testified that the purpose of

her interview with the victim was to secure medical

and mental health treatment. Id., 635. With respect to

the involvement of law enforcement in the interview

ofthe victim,the court observed thatthis was consistent

with the concept of statutory MITs, a purpose of which

is to ensure the welfare of child victims. Id., 634–35.

On the basis of these factors, the court ‘‘conclude[d]

that the primary purpose of the interviews was not to

build a case against the defendant, but to provide the

victim with assistance in the form of medical and mental

health treatment. Therefore, the statements were nontestimonial, and the admission of those statements did

not violate the defendant’s right to confrontation.’’

Id., 635.

Approximately three years after our Supreme Court

decided Arroyo, the United States Supreme Court modified the Crawford calculus for determining whether a

statement is testimonial in Michigan v. Bryant, 562

U.S. 344, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011). In

Bryant, the court expanded the ‘‘primary purpose’’ test

by shifting the focus of the inquiry from the declarant’s

actions to those of both the declarant and the interrogator. Specifically, the court instructed that ‘‘[i]n

determining whether a declarant’s statements are testimonial, courts should look to all of the relevant circumstances. . . . [T]he interrogator is relevant to this

evaluation . . . . [T]he identity of an interrogator, and

the content and tenor of his questions . . . can illuminate the primary purpose of the interrogation.’’ (Citations omitted; internal quotation marks omitted.) Id.,
369. Moreover, the court reaffirmed and emphasized

the objective nature of this inquiry. ‘‘The statements

and actions of the parties must . . . be objectively

evaluated. That is, the relevant inquiry is not the subjective or actual purpose of the individuals involved in a

particular encounter, but rather the purpose that reasonable participants would have had, as ascertained

from the individuals’ statements and actions and the

circumstances in which the encounter occurred.’’ Id.,

360.

Following the United States Supreme Court’s expansion of the primary purpose test in Bryant, our Supreme

Court decided State v. Maguire, supra, 310 Conn. 535,

the case on which the defendant in the present case

primarily relies. In that case, a jury found the defendant

guilty of risk of injury to a child and sexual assault

in the fourth degree after the victim accused him of

inappropriately touching her inside her underwear. The

defendant appealed from his conviction, claiming that

the trial court had improperly allowed the forensic interviewer to testify to statements made by the victim during her forensic interview, as well as improperly

admitted into evidence the video recording and transcript of the interview, underthe tender years exception

to the hearsay rule. Id., 538. Although the courtreversed

the defendant’s conviction on a different ground, it clarified the standard described in Arroyo for the admission

of forensic interview evidence. We discuss the facts of

Maguire, as well as the court’s analysis, in full here.

The defendant in Maguire was a friend of the victim’s

mother, who paid him to watch the victim and serve

as a buffer between her and her former husband, the

victim’s father, on the days that he would come to her

home to pick up their children. Id., 541. At some point

during this arrangement, the victim reported to her

brother that the defendant had touched her inside her

underwear. Id., 542. The victim’s brother repeated this

allegation to their adult cousin who, in turn, reported

it to the victim’s mother. Id.

The victim’s mother contacted a family therapist

whom she and the victim’s father had been seeing, and

scheduled an emergency session. Id. At this session,

the victim’s parents discussed the victim’s allegations

with the therapist. Id. In compliance with her responsibilities as a mandated reporter, the therapist reported

the allegations to the department. Id. The department

subsequently forwarded the allegations to the local

police department. Id. The victim’s parents later went

to the police station to file a formal criminal complaint

against the defendant. Id. At the same time, they spoke

with Officer Anthony Signore, who took their statement

and contacted the Danbury Regional Child Advocacy

Center(child advocacy center)to schedule an interview

between the victim and an MIT. Id., 542–43.

Donna Meyer, the director of the MIT program at the
child advocacy center, conducted the interview of the

victim, which was video recorded for later investigative

use, and which Signore and a department caseworker

observed from behind two-way tinted glass. Id., 543. In

response to Meyer’s questions, the victim recounted

how the defendant had put his hand inside her pants

during one occasion when they were sitting together

on the couch in her mother’s living room. Id. Following

the interview, the defendant was arrested and charged

with, inter alia, risk of injury to a child and sexual

assault in the fourth degree. Id., 544.

At trial, the court admitted, over the defendant’s

objection, the video recording and a transcript of the

forensic interview of the victim pursuant to the tender

years exception. Id. At the trial’s conclusion, the jury

found the defendant guilty of risk of injury to a child

and sexual assault in the fourth degree. Id., 545. The

defendant appealed from his conviction, arguing, inter

alia, that the trial court had improperly admitted the

video recording and transcript of the victim’s forensic

interview under the tender years exception to the hearsay rule. Id., 538–40. The state responded that the video

and transcript of the victim’s forensic interview were

admissible under the ‘‘primary purpose’’ standard set

forth in Arroyo because the MIT conducted the interview under protocols similar to those employed in the

forensic interview in that case. Id., 563–64.

Although it ultimately reversed the defendant’s conviction on the basis of prosecutorial impropriety; id.,

540; our Supreme Court considered his evidentiary

claim because the issue underlying it had the potential

to arise again in a new trial. Id., 563. The court began its

analysis by rejecting the premise underlying the state’s

argument, namely, that the challenged evidence was

admissible under the standard set forth in Arroyo

because the victim’s interview was conducted under

similar protocols. Id., 564. Specifically, the court clarified that ‘‘Arroyo did not adopt a blanketrule of admissibility for all forensic interviews conducted under the

auspices of an MIT or under similar protocol but,rather,

only those interviews that are conducted for the primary purpose of providing medical assistance to the

victim.’’(Emphasis added.)Id. The challenged evidence

was admissible in Arroyo, the court explained, only

because under the facts presented, ‘‘it [was] clear that

the primary purpose of [the forensic] interviews was

to provide medical assistance to the victim.’’ (Internal

quotation marks omitted.) Id., 566.

Significantly, the court in Maguire also restated two

prior observations that it had made in State v. Cameron

M., 307 Conn. 504, 523–24 n.20, 55 A.3d 272 (2012), cert.

denied, U.S. , 133 S. Ct. 2744, 186 L. Ed. 2d 194

(2013), overruled in part on other grounds by State v.

Elson, 311 Conn. 726, 748 n.14, 91 A.3d 862 (2014), a case

decided after Arroyo. First, it observed that ‘‘Arroyo
continues to represent a minority position on [the issue

of whether forensic interviews are testimonial under

Crawford] . . . .’’ (Internal quotation marks omitted.)

State v. Maguire, supra, 310 Conn. 568. Second, it noted

that ‘‘subsequent to Arroyo, the United States Supreme

Court decided Michigan v. [Bryant, supra, 562 U.S.

344], which . . . shift[ed] [the focus] away from the

declarant’s intent [and] toward [the intent] of the interrogator [for purposes of the determination of] whether

the primary purpose of the statement is testimonial

. . . . [Bryant] has been predicted to further restrict

the admissibility of children’s hearsay statements in

sexual abuse prosecutions.’’ (Internal quotation marks

omitted.) State v. Maguire, supra, 568–69.10

The court concluded its analysis by clarifying that

the standard in Arroyo is ‘‘stringent’’; id., 570; and that

‘‘a victim’s statements during a forensic interview may

be deemed nontestimonial only if the essential purpose

of the interview is to provide medical assistance to the

victim.’’ Id., 569. It expressed skepticism that the state

would be capable of meeting this standard during the

Maguire defendant’s new trial, noting that ‘‘there is

nothing in the present record of this case to suggest

that the primary or overriding purpose of Meyer’s interview was to provide the victim with assistance in the

form of medical or mental health treatment. In fact, the

record is devoid of any suggestion that the victim or

[her] mother . . . sought or obtained such treatment

at any time following the victim’s disclosure of abuse.

There also is strong evidence that Meyer was acting at

the behest of law enforcement personnel during the

interview.’’ Id., 570.

The court’s analysis in Maguire frames our inquiry

into the matter presently before us, namely, whether

the trial court in the present case properly admitted

the video recordings of the victims’ forensic interviews

and their accompanying summaries under the tender

years exception to the hearsay rule during the defendant’s trial. We note at the outset that the burden is on

the state, as the proponent ofthe challenged statements,

to establish that the tender years exception to the hearsay rule applies. See New England Savings Bank v.

Bedford Realty Corp., 238 Conn. 745, 753, 680 A.2d 301

(1996). Applying the principles discussed in Maguire

and cases preceding it to the facts of the present case,

we conclude that the circumstances surrounding the

victims’ forensic interviews objectively demonstrate

that their primary purpose was not to provide the victims with medical diagnosis ortreatment, but to ‘‘[establish] or prov[e] past events potentially relevant to later

criminal prosecution.’’ (Internal quotation marks omitted.) State v. Maguire, supra, 310 Conn. 566. We base

this conclusion on three important factors.

First, law enforcement and department investigators

played a role in the victims’ interviews far exceeding
that of passive observers. They participated in conferences with the forensic interviewers both before and

after the interviews, and the interviewers actively solicited questions from them to pose to the victims. Importantly, there is no evidence in the record suggesting that

either investigator possessed any medical expertise or

training relevant to the task of determining whether the

victims required medical diagnosis or treatment. Their

participation therefore appears to be, from an objective

viewpoint, primarily for the purpose of assisting the

interviewers in obtaining evidence to use in prosecuting

the defendant.

Second, the advocacy center’s practice of video

recording interviews bears little relation to the treatment of the victims. As Murphy-Cipolla testified,

although medical providers ‘‘could’’ review the video

from an interview ‘‘if they wanted to,’’ they typically

obtain information relevant to their treatment by

observing the interview firsthand, or during weekly case

reviews. In contrast, both Murphy-Cipolla and Byrne

admitted that it is standard practice for law enforcement investigators to receive a copy of the video to use

in their investigations. In fact, in response to defense

counsel’s question to Byrne if she had received training

regarding what role her interviews play in the prosecution or investigation of abuse complaints, she acknowledged that ‘‘part of the reason why [the advocacy

center] videotape[s] the interview is so that it would

serve as a child’s . . . statement in the event that something . . . may go to a next level.’’

Third and finally, the structure and content of the

interviews objectively indicate that they are not primarily directed toward providing medical diagnosis ortreatment to the victims. Murphy-Cipolla and Byrne each

testified that the focus of their questions is essentially

on eliciting facts pertinent to the victims’ allegations:

the nature of the contact, the identity of the accuser,

and how many times the abuse happened, for example.11

Questions of a traditionally medical nature, on the other

hand, such as those relating to the actual physical or

mental condition of the victim, are, as they admitted,

typically relegated to the end of the interview. Even

then, this inquiry appears to be confined, at least in

the present case, to asking the victims if they had any

‘‘worries’’ about their bodies. We further note that due

to the substantial involvement of the state in the interview process, a hallmark of the clinician-provider relationship—the confidentiality of any medical

information gleaned from the interview—is missing.

See Jarmie v. Troncale, 306 Conn. 578, 607, 50 A.3d

802 (2012) (‘‘[t]he principle of confidentiality lies at the

heart of the physician-patient relationship and has been

recognized by our legislature’’).

Moreover, in contrast to Arroyo, there is little evidence that either Murphy-Cipolla or Byrne ‘‘was an inte-
gral part of the chain of medical care.’’ (Emphasis

added.) State v. Arroyo, supra, 284 Conn. 633. Although

they each testified that they met with medical providers

to discuss cases, and that treating clinicians would frequently observe their interviews, their testimony does

not suggest that they were individually paired with any

of these medical providers, as in Arroyo, or that they

participated in ‘‘the ultimate diagnosis and formulation

of a treatment plan for the child.’’ Id.

The state attempts to establish that the primary purpose of the victims’ interviews was to provide medical

diagnosis or treatment by relying, in significant part,

on Murphy-Cipolla’s and Byrne’s assertions to that

effect. As we discussed previously, however, the subjective intentions ofthe interviewers are not proper considerations in the primary purpose inquiry. See Michigan

v. Bryant, supra, 562 U.S. 360. Instead, we look to discern ‘‘the purpose that reasonable participants would

have had, as ascertained from the individuals’ statements and actions and the circumstances in which the

encounter occurred.’’ Id. As the foregoing discussion

indicates, we are not persuaded that reasonable participants conducting the same interviews in the manner as

Murphy-Cipolla and Byrne would have done so with

the primary purpose of providing medical treatment

to the victims. Although it may be true that medical

treatment was one purpose of the interviews, we agree

with the defendant that an objective assessment of the

circumstances surrounding the interviews leads to the

conclusion that their primary purpose was to establish

and create a record of past events related to the victims’

allegations. For this reason, we conclude that the statements contained in the videos of the forensic interviews

and the reports generated therefrom were testimonial

as a matter of law, and, therefore, improperly admitted

under the tender years exception to the hearsay rule.

B

Medical Diagnosis and Treatment Exception

Having determined that the court improperly admitted the forensic interview videos and summaries under

the tender years exception to the hearsay rule, we now

turn to the issue of whether the court properly admitted

the evidence underthe medical diagnosis and treatment

exception. In support of his claim that the court improperly admitted the videos and summaries under the

exception, the defendant advances the following two

part argument. First, he argues that the tender years

exception and the medical diagnosis and treatment

exception are governed by similar standards because

statements admissible under both exceptions are similar in nature. Second, he argues that because the videos

and summaries were not admissible under the tender

years exception because their primary purpose was

not to provide medical assistance, they are likewise

inadmissible underthe medical diagnosis and treatment
exception. We are not persuaded that the medical diagnosis and treatment exception implicates Crawford’s

prohibition against testimonial hearsay, as the tender

years exception does. For this reason, we reject the

first part of the defendant’s argument. With respect

to the second part of the defendant’s argument, we

conclude that when the admissibility of the videos and

summaries is considered under the traditional standard

imposed by the medical diagnosis and treatment exception, the court did not improperly admit them.

We begin our analysis by again clarifying the

important point that, because the victims appeared at

trial and were subject to cross-examination by the

defendant, Crawford and its progeny do not apply

directly to the present case. See Crawford v. Washington, supra, 541 U.S. 60 n.9 (‘‘when the declarant appears

for cross-examination at trial, the [c]onfrontation

[c]lause places no constraints at all on the use of his

prior testimonial statements’’). We focused our discussion in part I of this opinion extensively on Crawford

only because the text of the tender years exception

expressly adopts the Crawford standard as one of its

criteria for admissibility even if a Crawford claim is

not available to the defendant because the declarant

testified at trial. See State v. Maguire, supra, 310 Conn.

565 (‘‘[t]he prohibition of the tender years exception

against statements made in preparation of a legal proceeding is simply another way of saying that, to be

admissible, the statement must be nontestimonial for

purposes of Crawford’’); see also Conn. Code Evid.

(2009) § 8-10 (a), commentary (explaining that § 8-10

[a] [2] of the Connecticut Code of Evidence ‘‘address[es]

the exclusion of testimonial statements prohibited by

Crawford’’). Thus, although we determined that the

victims’ statements were testimonial in nature, we did

not conclude that they were barred by the sixth amendment’s confrontation clause, as Crawford would have

required if the declarants were unavailable to testify at

trial and there had been no prior opportunity for crossexamination. Rather, we determined only that the forensic interview videos and written summaries did not

satisfy one criterion set forth in the tender years exception for admissibility thereunder.

Because hearsay that does not fall into one exception

to the hearsay rule may still be admissible if it falls

within another exception; see Doe v. Thames Valley

Council for Community Action, Inc., 69 Conn. App.

850, 868, 797 A.2d 1146, cert. denied, 261 Conn. 906,

804 A.2d 212 (2002); the question of whether the videos

and their written summaries are admissible under the

medical diagnosis and treatment exception requires its

own analysis independent of the one undertaken pursuant to the tender years exception. Indeed, the Code of

Evidence specifically states in the tender years exception that ‘‘[n]othing in this section shall be construed

to . . . prevent the admission of any statement under
another hearsay exception.’’ Conn. Code Evid. § 8-10

(b) (1).

In conducting this analysis, we observe initially that

in contrast to the tender years exception, the medical

diagnosis and treatment exception to the hearsay rule

contains no language expressly or implicitly importing

Crawford’s prohibition againsttestimonial hearsay. The

exception provides only that statements ‘‘made for purposes of obtaining a medical diagnosis or treatment

and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general

character of the cause or external source thereof, insofar as reasonably pertinent to the medical diagnosis or

treatment,’’ are not excluded by the hearsay rule. Conn.

Code Evid. § 8-3 (5). Neither this language, nor any

common-law principle that we are aware of, mandates

that statements offered underthe exception be nontestimonial.12 Rather, their admissibility turns principally on

whether ‘‘the declarant was seeking medical diagnosis

or treatment, and the statements are reasonably pertinent to achieving those ends.’’ (Internal quotation

marks omitted.) State v. Cruz, 260 Conn. 1, 8, 792 A.2d

823 (2002).

In the context of a forensic interview, this standard

is substantially less demanding than the one imposed

by Crawford and incorporated into the tender years

exception. Undoubtedly, statements may be ‘‘ ‘reasonably pertinent’ ’’; id.; to obtaining medical diagnosis or

treatment even when that was not the primary purpose

of the inquiry that prompted them, or the principal

motivation behind their expression. See State v. Donald

M., 113 Conn. App. 63, 71, 966 A.2d 266 (forensic interview statements admissible under medical diagnosis

and treatment exception because ‘‘the purpose of the

interview was, at least in part, to determine whether

the victim was in need of medical treatment’’ [emphasis

added]), cert. denied, 291 Conn. 910, 969 A.2d 174

(2009). Consequently, we anticipate that in most circumstances, the task of demonstrating that a statement

made during a forensic interview satisfies the medical

diagnosis and treatment exception will be less onerous

than establishing that it is admissible under the tender

years exception.

Despite the apparent variation in the burdens

imposed by the two hearsay exceptions at issue in this

case, the defendant argues that, in the context of a

forensic interview, the standard governing the medical

diagnosis and treatment exception is similarto the standard that governs the tender years exception. He bases

this argument on our Supreme Court’s observation in

Maguire that ‘‘statements made in the course of a forensic interview that satisfy the criteria for admission

under the tender years exception are similar to statements made to a physician in the course of medical

treatment, which are admissible under the medical
treatment and diagnosis exception to the hearsay rule

. . . .’’ State v. Maguire, supra, 310 Conn. 569. He contends that this ‘‘recognized similarity between the two

exceptions implies that if one is inapplicable the other,

a fortiori, does not apply.’’ (Emphasis omitted.)

Our review of Maguire compels us to reject this conclusion. The pertinent issue raised in Maguire, for purposes of the present case, was whether the trial court

had improperly admitted video evidence and statements

made during forensic interviews under the tender years

exception alone. See State v. Maguire, supra, 310 Conn.

538. The court did not address whether the videos were

additionally admissible underthe medical diagnosis and

treatment exception. To the extent that the court discussed that exception, it appears to have done so as

a means of emphasizing, by way of comparison, that

statements made during a forensic interview and

offered under the tender years exception must be for

the primary purpose of obtaining medical treatment. In

light of the limited scope of the court’s inquiry, we

decline to construe the court’s observation as suggesting that, because some statements admissible

under both hearsay exceptions are similar in nature,

other statements inadmissible under one exception are

necessarily inadmissible under the other. In fact, as

previously discussed, the text of the tender years exception expressly cautions us against reaching this conclusion. See Conn. Code Evid. § 8-10 (b) (1) (‘‘[n]othing in

this section shall be construed to . . . prevent the

admission of any statement under another hearsay

exception’’).13

Having concluded thatthe applicability of the medical

diagnosis and treatment exception to the hearsay rule

must be determined on its own merits, we set forth the

relevant legal principles that guide ourresolution of this

question. ‘‘Out-of-court statements made by a patient to

a [medical provider] may be admitted into evidence if

the declarant was seeking medical diagnosis or treatment, and the statements are reasonably pertinent to

achieving these ends.’’ (Internal quotation marks omitted.) State v. Cecil J., 99 Conn. App. 274, 289, 913 A.2d

505 (2007), aff’d, 291 Conn. 813, 970 A.2d 710 (2009).

‘‘The rationale for excluding from the hearsay rule statements made in furtherance of obtaining treatment is

that we presume that such statements are inherently

reliable because the patient has an incentive to tell the

truth in order to obtain a proper medical diagnosis and

treatment. . . . The term medical encompasses psychological as well as somatic illnesses and conditions.

. . . Statements made by a sexual assault complainant

to a social worker may fall within the exception if the

social worker is found to have been acting within the

chain of medical care.’’ (Citations omitted; internal quotation marks omitted.) State v. Donald M., supra, 113

Conn. App. 70–71. ‘‘Although [t]he medical treatment

exception to the hearsay rule requires that the state-
ments be both pertinent to treatment and motivated by

a desire for treatment . . . in cases involving juveniles,

[we] have permitted this requirement to be satisfied

inferentially.’’ (Citation omitted; internal quotation

marks omitted.) State v. Telford, 108 Conn. App. 435,

441–42, 948 A.2d 350, cert. denied, 289 Conn. 905, 957

A.2d 875 (2008).

In the present case, there was sufficient evidence

presented at trial that the victims’ statements were reasonably pertinent to obtaining medical diagnosis and

treatment to bring them within the scope of the medical

diagnosis and treatment exception.14 Specifically, both

Murphy-Cipolla and Byrne testified that the purpose of

their questions was to assist them in recommending

medical examinations or mental health treatment. To

that end, they each normally inquire if the children

they interview have any concerns about their bodies.

Moreover, although the primary purpose of many of

their questions appears to be directed toward assisting

law enforcement; see part I A of this opinion; the information they obtain from interviews is nonetheless available and provided to medical providers and mental

health practitioners. At the conclusion of each interview, Murphy-Cipolla and Byrne make referrals for

medical and mental health treatment, as needed. To

reduce trauma to victims of sexual assault, the advocacy center performs physical and mental health examinations on site.

On the basis of the foregoing evidence, we conclude

that the victims’ statements were reasonably pertinent

to obtaining medical diagnosis or treatment, and that

Murphy-Cipolla and Byrne sufficiently occupied a position within the chain of medical care, to bring the victims’ statements within the scope of the medical

diagnosis and treatment exception. We also recognize

that because the standard for admission of forensic

interview evidence under the medical diagnosis and

treatment exception is less stringent than the standard

for admission under the tender years exception, the

state in future cases may rely solely on the medical

diagnosis and treatment exception, thereby effectively

rendering Maguire a nullity. This potential anomaly,

however, is not for this court to address but, instead,

is best left for consideration by our Supreme Court,

either in its adjudicative function or as overseer of the

Code of Evidence. Accordingly, we conclude that the

court did not abuse its discretion by admitting the forensic interview videos and written summaries containing

those statements under the medical diagnosis and treatment exception to the hearsay rule.

II

PROSECUTORIAL IMPROPRIETY

The defendant next claims that the prosecutor

deprived him of his due process right to a fair trial by
committing various acts of prosecutorial impropriety

during his rebuttal argument to the jury. In particular,

the defendant claims that the prosecutor improperly

(1) denigrated the defendant and his counsel; (2)

expressed his personal opinion; and (3) appealed to the

emotions, passions, and prejudices of the jury. The state

argues that the prosecutor’s comments were not

improper. Alternatively, the state contends that even if

some of the prosecutor’s comments were improper,

none of them deprived the defendant of a fair trial. We

agree with the state’s argument that the prosecutor’s

comments were not improper.

We begin our review of the defendant’s claim by

setting forth the applicable standard of review. ‘‘In analyzing claims of prosecutorial impropriety, we engage

in a two step analytical process. . . . The two steps are

separate and distinct. . . . We first examine whether

prosecutorial impropriety occurred. . . . Second, if an

impropriety exists, we then examine whether it

deprived the defendant of his due process right to a

fair trial. . . . In other words, an impropriety is an

impropriety, regardless of its ultimate effect on the fairness of the trial. Whether that impropriety was harmful

and thus caused or contributed to a due process violation involves a separate and distinct inquiry. . . . [If]

a defendant raises on appeal a claim that improper

remarks by the prosecutor deprived the defendant of

his constitutional right to a fair trial, the burden is

on the defendant to show . . . that the remarks were

improper . . . .

‘‘Because the claimed prosecutorial [improprieties]

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 the facts in evidence and the reasonable inferences to be drawn therefrom. . . .

‘‘Nevertheless, the prosecutor has a heightened duty

to avoid argument that strays from the evidence or

diverts the jury’s attention from the facts of the case.

[The prosecutor] is not only an officer of the court,

like every 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 office, he usually exercises great

influence [on] jurors. His conduct and language in the
trial of cases in which human life or liberty [is] at stake

should be forceful, but fair, because he represents the

public interest, which demands no victim and asks [for]

no conviction through the aid of passion, prejudice, or

resentment. If the accused [is] guilty, he should [nonetheless] be convicted only after a fair trial, conducted

strictly according to the sound and well-established

rules which the laws prescribe. [Although] the privilege

of counsel in addressing the jury should not be too

closely narrowed or unduly hampered, it must never

be used as a license to state, or to comment [on], or

to suggest an inference from, facts not in evidence, or

to present matters which the jury ha[s] no right to

consider.’’ (Citations omitted; internal quotation marks

omitted.) State v. Ross, 151 Conn. App. 687, 693–94,

95 A.3d 1208, cert. denied, 314 Conn. 926, 101 A.3d

271 (2014).

In the present case, the defendant failed to object

at trial to the remarks that he claims were improper.

Nevertheless, our Supreme Court has explained that a

‘‘defendant’s failure to object at trial to each of the

occurrences that he now raises as instances of prosecutorial impropriety, though relevant to our inquiry, is not

fatal to review of his claims. . . . This does not mean,

however, that the absence of an objection at trial does

not play a significant role in the determination of

whether the challenged statements were, in fact,

improper. . . . To the contrary, we continue to adhere

to the well established maxim that defense counsel’s

failure to object to the prosecutor’s argument when it

was made suggests that defense counsel did not believe

that it was [improper] in light of the record of the case

at the time. . . . With this maxim in mind, we proceed

with our review of the defendant’s claim[s].’’ (Internal

quotation marks omitted.) Id., 694–95.

A

Improper Denigration of Defendant

And Defense Counsel

The defendant first claims that the prosecutor

improperly denigrated both the defendant and defense

counsel. Specifically, he claims that the prosecutor

repeatedly characterized the defendant as abnormal,

accused defense counsel of violating the law, and suggested that defense counsel was willing to invent theories to bolster the defendant’s case. The state responds

that the prosecutor’s comments were proper responses

to defense counsel’s closing argument. We agree with

the state.

The following additional facts are relevant to this

claim. During closing argument, defense counsel suggested that the victims had fabricated their allegations

against the defendant to prevent their mother from dating him. In support of this theory, he argued that the

victims’ allegations were implausible and unsupported
by any physical evidence or independent testimony.

Specifically, he stated: ‘‘Again, no physical evidence that

any of these acts occurred. No independent testimony

putting [the defendant] alone in this room with these

girls during this party. He had not seen these people

for many years. So, he just came to this party like a

stranger and somehow was able to get inside the house

and go upstairs in each of the girl’s rooms, alone with

the girls. Really? That’s amazing. I think that’s amazing.

And that should not be believed.’’

In response during rebuttal argument, the prosecutor

stated: ‘‘With respect to these girls being in the room

alone with the defendant. Well, listen, we know why

he was up in the room. You heard the story. Their

grandmother left them this desk. Him and his brother

helped move this desk up in the room. So, that’s how

he gets up in the room. And I’ll concede that it is strange

that the defendant is alone with these young girls by

themselves. But consider the source. Okay? We’re talking about [the defendant] here, not the average person.

We’re talking about a guy who’s playing around with

kids when he has no shirt on, with a bathing suit on,

which he claims accidentally could have shown his

penis to her—to one of these girls while on a camping

trip because a frog jumped into his shorts. I mean, this

is . . . the type of guy we’re talking about, not the

average guy. He’s so eager to be around with these kids

he sets up this camping trip to go camping with them.

He’s so eager to always be playing and pi[n]ching their

butts because he had a tough childhood and he likes

playing with kids. This is not the average guy. This is

a guy who’s into this type of stuff.’’

‘‘[A] prosecutor should avoid arguments which are

calculated to influence the passions or prejudices of

the jury, or which would have the effect of diverting

the jury’s attention from their duty to decide the case

on the evidence. . . . It is no part of a [prosecutor’s]

duty, and it is not his right, to stigmatize a defendant.’’

(Internal quotation marks omitted.) State v. James R.,

138 Conn. App. 181, 190, 50 A.3d 936, cert. denied, 307

Conn. 940, 56 A.3d 949 (2012). ‘‘[A]n improper appeal

to the jurors’ emotions can take the form of a personal

attack on the defendant’s character . . . .’’ (Internal

quotation marks omitted.) State v. Santiago, 143 Conn.

App. 26, 37, 66 A.3d 520 (2013).

The defendant contends that the prosecutor’s comments improperly stigmatized him in the eyes of the jury

by ‘‘brand[ing] [him] as an individual with an abnormal

fascination with young children whose protestations of

innocence should be dismissed out of hand.’’ We do

not agree, however, that this was the intent behind, or

the effect of, the prosecutor’s remarks. Rather, we view

the prosecutor’s comments as attempting to mitigate

the defendant’s characterization of the victims’ allegations as implausible and unsupported by evidence. By
emphasizing evidence tending to show that the defendant was eager to spend time with the victims and

engage in physical contact with them, the prosecutor

was attempting to diminish any initial skepticism that

might arise from the victims’ description of events,

which the prosecutor conceded was ‘‘strange . . . .’’

Moreover, we view the state’s characterization of the

defendant as ‘‘a guy who’s into this type of stuff’’ as an

attempt to highlight evidence adduced at trial suggesting that the defendant had orchestrated various

situations in order to engage in sexually inappropriate

contact with the victims. Accordingly, we conclude that

these comments were not an improper attempt to stigmatize the defendant, but instead a direct and proportional response to the defendant’s challenge to the

plausibility of the victims’ allegations.

The defendant further argues that the prosecutor

improperly denigrated defense counsel by characterizing part of his argument as ‘‘illegal’’ and suggesting that

it was possibly fabricated. The state responds that the

prosecutor properly commented on defense counsel’s

improper reference to facts not properly before the

jury. We agree with the state.

‘‘[T]he prosecutor is expected to refrain from

impugning, directly or through implication, the integrity

or institutional role of defense counsel.’’ (Internal quotation marks omitted.) State v. Orellana, 89 Conn. App.

71, 101, 872 A.2d 506, cert. denied, 274 Conn. 910, 876

A.2d 1202 (2005). During his closing argument, defense

counsel stated: ‘‘I know from just some research. You

know, if you look in some of the books, the psychological books. You know, why are these stories sometimes

made up? Why do sometimes children make up these

stories? And they give a list of reasons. And one reason

I read was to satisfy a need for attention and sympathy.

That is one—I guess one reason sometimes you see

that type of thing happen, to satisfy a need for attention

and sympathy. ‘‘

During rebuttal argument, the prosecutor responded:

‘‘Now, [defense counsel] read out of some book, apparently, that children make up stories to satisfy the need

for attention and sympathy. Okay. So, what he just did

is illegal. If he wanted to do that, put that evidence in

front of you he had to call an expert witness who says,

yeah, I deal with children all the time and they make

up stories to X, Y and Z. So, what he said about that,

you can’t consider that at all because it didn’t come

out in the trial. For all we know he just made that up.’’

The defendant contends that these comments were

improper because they constituted accusations in open

court that defense counsel had engaged in dishonest

and criminal conduct. In support of this argument, he

cites to our Supreme Court’s decision in State v. Payne,

303 Conn. 538, 34 A.3d 370 (2012). In that case, defense

counsel had repeatedly asserted during closing argu-
ment that her client was ‘‘honest’’ and had ‘‘told the

truth.’’ (Internal quotation marks omitted.) Id., 564. In

response, the prosecutor stated during rebuttal argument that ‘‘attorneys aren’t even ethically allowed to

say a particular witness is honest or not.’’ (Emphasis

omitted; internal quotation marks omitted.) Id., 565.

Our Supreme Court concluded that the prosecutor’s

comment, ‘‘although in response to defense counsel’s

improper statements bolstering the defendant’s credibility, was improper because it impugned defense counsel by characterizing her as unethical. It has been held

improper for the prosecutor to impugn the role of

defense counsel. . . . In particular, [i]t is improper for

a prosecutor to tell a jury, explicitly or implicitly, that

defense counsel is employing standard tactics used in

all trials, because such an argument relies on facts not

in evidence and has no bearing on the issue before the

jury, namely, the guilt or innocence of the defendant.’’

(Internal quotation marks omitted.) Id., 566. The defendant claims that the prosecutor’s comments in the present case are similar to those held improper in Payne.

We conclude that Payne is distinguishable from the

present case. In Payne, the prosecutor specifically characterized defense counsel as unethical. That is substantively different from characterizing part of an argument

as illegal, as the prosecutor did in the present case.

The context of the prosecutor’s remark strongly suggests that he was attempting to convey that defense

counsel had argued facts not in evidence, as opposed

to violating a rule governing professional conduct or a

provision of our Penal Code. Because not every violation of the Code of Evidence is unethical—indeed, many

are inadvertent or the result of a good faith belief in

the propriety of the attorney’s conduct—we decline to

construe the prosecutor’s use of the word ‘‘illegal’’ as

an attack designed to denigrate defense counsel.

Instead, we adhere to the well established principle

that ‘‘a court should not lightly infer that a prosecutor

intends an ambiguous remark to have its most damaging

meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less

damaging interpretations.’’ (Internal quotation marks

omitted.) State v. Ciullo, 314 Conn. 28, 48, 100 A.3d

779 (2014).15

We further read the prosecutor’s comment, ‘‘[f]or all

we know he just made that up,’’ not as suggesting that

defense counsel had fabricated facts, but as emphasizing that his comments about the victims’ motives had

no basis in the evidentiary record. Significantly, the

defendant does not dispute that by recollecting the contents of a psychology book he claimed to have read,

but to which no expert had testified, defense counsel

was placing evidence before the jury that had not been

properly introduced during trial. The fact that defense

counsel did not object to the prosecutor’s remarks at

the time that they were made further suggests that he
perceived them to be fair and invited commentary on

the propriety of his closing argument, and not accusations that he had engaged in some criminal act or fabricated evidence.

B

Improper Expression of Personal Opinion

The defendant next argues that the prosecutor

improperly and repeatedly expressed his personal opinion during rebuttal argument. Specifically, he argues

that the prosecutor improperly expressed his opinion

that (1) there was ‘‘no reason’’ for the victims to fabricate their allegations against the defendant because

they ‘‘actually liked [him]’’; (2) the victims’ testimony

was ‘‘so reliable’’; (3) the physical contact between the

defendant and the victims was ‘‘not an accident’’; (4)

the defendant’s explanation for the victims’ allegations

about his conduct on the camping trip was ‘‘the most

ridiculous story’’; (5) the defendant ‘‘put the nail in his

coffin’’ by conveying that explanation to the police;16

and (6) the testimony of several defense witnesses was

‘‘useless’’ and ‘‘worthless.’’ The state responds that the

prosecutor’s comments constituted proper argument

that was based on the evidence produced at trial. We

agree with the state.

‘‘[A] prosecutor may not express his own opinion,

directly or indirectly, as to the credibility of the witnesses. . . . Nor should a prosecutor express his opinion, directly or indirectly, as to the guilt of the

defendant. . . . Such expressions of personal opinion

are a form of unsworn and unchecked testimony, and

are particularly difficult for the jury to ignore because

of the prosecutor’s special position. . . . Moreover,

because the jury is aware that the prosecutor has prepared and presented the case and consequently, may

have access to matters not in evidence . . . it is likely

to infer that such matters precipitated the personal

opinions. . . . It is not, however, improper for the prosecutor to comment upon the evidence presented at trial

and to argue the inferences that the jurors might draw

therefrom . . . .’’ (Internal quotation marks omitted.)

State v. Luster, 279 Conn. 414, 435, 902 A.2d 636 (2006).

Moreover, ‘‘[a]lthough prosecutors generally should try

to avoid using phrases that begin with the pronoun I,

such as I think or I believe, we recognize that the use

of the word I is part of our everyday parlance and . . .

because of established speech patterns, it cannot

always easily be eliminated completely from extemporaneous elocution.’’(Internal quotation marks omitted.)

Id., 436.

As previously discussed, the defendant devoted a portion of his closing argument to arguing that the victims’

allegations were implausible, uncorroborated by physical evidence, and a possible attempt to sabotage the

defendant’s relationship with the victims’ mother. When
viewed in light of this theory, the prosecutor’s comments—which largely comprised a series of declarative

factual statements—constituted a proper attempt to

rebut defense counsel’s arguments by encouraging the

jury to draw inferences that were favorable to the state’s

theory of the case and adverse to that of the defendant.

For instance, the prosecutor supported his assertion

that there was ‘‘no reason’’ to discredit the victims’

allegations by reciting a number of facts, and encouraging a number of inferences that, considered as a whole,

suggested the victims had little incentive to lie. See

State v. Stevenson, 269 Conn. 563, 585, 849 A.2d 626

(2004) (‘‘[i]t is not improper for a prosecutor to remark

on the motives that a witness may have to lie, or not

to lie, as the case may be’’ [internal quotation marks

omitted]). Similarly, when the prosecutor characterized

some of the defense witnesses’ testimony as ‘‘useless’’

and ‘‘worthless,’’ he was not placing his personal opinion before the jury, but, rather, drawing attention to

the fact that, due to their inability to recall critical

details about the defendant’s whereabouts at the pool

party, theirtestimony neither supported the defendant’s

theory of the case nor undercut that of the state. Under

these circumstances, we conclude that the prosecutor’s

comments constituted proper, albeit blunt, commentary

on the evidence presented at trial.

Furthermore, we conclude that the prosecutor’s characterization of the defendant’s explanation as ‘‘ridiculous,’’ and his assertion that it ‘‘put the nail in [the

defendant’s] coffin,’’ was, although forceful, a proper

rhetorical device directed at highlighting the implausibility of the defendant’s claim. See State v. Stevenson,

supra, 269 Conn. 584 (‘‘The [prosecutor]’s remark during closing argument describing the defendant’s explanation as . . . ‘totally unbelievable’ did not necessarily

express her personal opinion. Rather, it was a comment

on the evidence presented at trial, and it posited a

reasonable inference that the jury itself could have

drawn without access to the [prosecutor]’s personal

knowledge of the case.’’); State v. Grant, 154 Conn.

App. 293, 321, 112 A.3d 175 (2014) (‘‘[N]ot every use

of rhetorical language or device is improper. . . . The

occasional use of rhetorical devices is simply fair argument. . . . [S]ome use of sarcastic and informal language, when intended to forcefully criticize a defense

theory on the permissible bases of the evidence and the

common sense of the jury, is not necessarily improper.’’

[Citation omitted; internal quotation marks omitted.]),

cert. denied, 315 Conn. 928, 109 A.3d 923 (2015). Here,

‘‘[w]e must give the jury the credit of being able to

differentiate between argument on the evidence and

attempts to persuade them to draw inferences in the

state’s favor, on one hand, and improper unsworn testimony, with the suggestion of secret knowledge, on the

other hand. The state’s attorney should not be put in

the rhetorical straitjacket of always using the passive
voice, or continually emphasizing that he [or she] is

simply saying I submit to you that this is what the

evidence shows, or the like.’’ (Internal quotation marks

omitted.) State v. Ciullo, supra, 314 Conn. 41. For these

reasons, we do not agree that the prosecutorimproperly

expressed his personal opinion during rebuttal

argument.

C

Improper Appeal to Emotions, Passions

And Prejudices of Jury

Finally, the defendant claims that the prosecutor

improperly appealed to the emotions, passions, and

prejudices of the jury during the state’s rebuttal argument. Specifically, the defendant argues that by referencing the emotional trauma experienced by the

victims, the prosecutor improperly vouched for their

credibility and simultaneously appealed to the jury’s

emotions, passions, and prejudices. The state contends

that the prosecutor properly appealed to the jurors’

common sense while rebutting the defendant’s suggestion that the victims’ allegations were not plausible. We

agree with the state.

‘‘[I]t is axiomatic that a prosecutor may not advance

an argument that is intended solely to appeal to the

jurors’ emotions and to evoke sympathy for the victim

or outrage at the defendant. . . . An appeal to emotions, passions, or prejudices improperly diverts the

jury’s attention away from the facts and makes it more

difficult for it to decide the case on the evidence in the

record. . . . When the prosecutor appeals to emotions,

he invites the jury to decide the case, not according to

a rational appraisal of the evidence, but on the basis

of powerful and irrelevant factors [that] are likely to

skew that appraisal. . . . An improper appeal to the

jurors’ emotions can take the form of a personal attack

on the defendant’s character . . . or a plea for sympathy for the victim or her family.’’ (Internal quotation

marks omitted.) State v. Maguire, supra, 310 Conn.

554–55.

During his rebuttal argument, the prosecutor twice

remarked that the victims had experienced emotional

trauma resulting from their allegations against the

defendant. Specifically, the prosecutor stated: ‘‘And

with respect to these girls making this story up. Let’s

think about it this way. All right? Three years ago, their

argument is, three years ago they made this story up

so their mom wouldn’t go out with this guy. Now, think

about it. Think about how these girls, the trauma these

girls have gone through because of this. For three years

they’re telling people this story. They have to come

and tell me the story. They have to come and tell [the

department] the story. They have to go to Saint Francis

[Hospital and Medical Center] and tell the story. They

have to tell their counselors the story. They have to
come and tell a bunch of strangers, you, in open court,

this story. At any time they could have said, I made this

up. But, no, for three years they tell the same story.

And they know at this point, or they have to know at

this point, that there’s no way their mom is going out

with this guy. Right? I mean, it’s three years later. All

these things had come out. They know that they can

come and say it didn’t happen, but they did. And they

went through the trauma. And they went through the

cross-examination. And they went through the tears.

And they went through all this, and they still want you

to believe, the defendant does, that this is made up

because she was going to go out on a date with him

three years ago. It just doesn’t make any sense.’’

(Emphasis added.)

We conclude that these comments constituted proper

argument that the victims lacked an incentive to fabricate their allegations. Rather than appealing to the

jurors’ emotions, passions, and prejudices, the prosecutor was asking them to exercise their common sense

and assess why the victims would lie about the defendant when doing so would require them to undergo the

emotionally difficult process of repeatedly telling their

story to one stranger after another. See State v. Warholic, 278 Conn. 354, 364–65, 897 A.2d 569 (2006)(prosecutor’s comments that it was ‘‘stretch to think that

[victim] is kind of . . . a mastermind behind making

this up’’ and that ‘‘[t]he kid who was molested came in

here and faced you all and said it’’ were proper arguments that victim had ‘‘no motive to lie’’ [internal quotation marks omitted]); State v. Stevenson, supra, 269

Conn. 585 (‘‘[i]t is not improper for a prosecutor to

remark on the motives that a witness may have to lie,

or not to lie, as the case may be’’ [internal quotation

marks omitted]. Moreover, this argument was directly

responsive to defense counsel’s suggestion that the victims’ allegations were implausible.Accordingly, we conclude that the prosecutor’s comments did not

improperly appeal to the emotions, passions, and prejudices of the jury. Because we conclude that the prosecutor’s statements in the present case were not improper,

we need not consider whether any claimed impropriety

deprived the defendant of his right to a fair trial. See

State v. Otto, 305 Conn. 51, 76 n.19, 43 A.3d 629 (2012);

State v. Herring, 151 Conn. App. 154, 173 n.11, 94 A.3d

688 (2014).

The judgment is affirmed.

In this opinion DiPENTIMA, C. J., concurred.

1

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

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

to identify the victims or others through whom the victims’ identities may

be ascertained. See General Statutes § 54-86e.

2

‘‘An MIT consists of mental health and law enforcement professionals,

as well as [Department of Children and Families] employees, all of whom

work collaboratively to investigate and treat cases ofreported sexual abuse.’’

State v. Maguire, supra, 310 Conn. 543; see also General Statutes § 17a-106a.

3 Although the court determined that the videos fell within the two excep-
tions to the hearsay rule, it also determined that certain portions of the

videos pertaining to uncharged misconduct were unfairly prejudicial and,

therefore, inadmissible.

4 The state argues that the defendant’s claim that the court improperly

admitted the interview summaries is briefed inadequately because he did

not independently analyze their admissibility. We disagree. Although the

defendant uses the videos as a focal point of his argument, it is evident that

the crux of his claims on appeal is that the statements made by the victims

to Murphy-Cipolla and Byrne constituted inadmissible hearsay, irrespective

of whether they were introduced to the jury in videos or in reports generated

by the advocacy center.

5 Section 8-10 of the Connecticut Code of Evidence provides in relevant

part: ‘‘Notwithstanding any other rule of evidence or provision of law, a

statement by a child under thirteen years of age relating to a sexual offense

committed against that child, or an offense involving physical abuse committed against that child by a person or persons who had authority or apparent

authority over the child, shall be admissible in a criminal or juvenile proceeding if: (1) The court finds, in a hearing conducted outside the presence of

the jury, if any, that the circumstances of the statement, including its timing

and content, provide particularized guarantees of its trustworthiness, (2)

the statement was not made in preparation for a legal proceeding, (3) the

proponent of the statement makes known to the adverse party an intention

to offer the statement and the particulars of the statement including the

content of the statement, the approximate time, date and location of the

statement, the person to whom the statement was made and the circumstances surrounding the statement that indicate its trustworthiness, at such

time as to provide the adverse party with a fair opportunity to prepare to meet

it, and (4) either (A) the child testifies and is subject to cross-examination at

the proceeding, or (B) the child is unavailable as a witness and (i) there is

independent nontestimonial corroborative evidence of the alleged act, and

(ii) the statement was made prior to the defendant’s arrest or institution of

juvenile proceedings in connection with the act described in the statement.

. . .’’ (Emphasis added.)

6 Section 8-3 of the Connecticut Code of Evidence provides in relevant

part: ‘‘The following are not excluded by the hearsay rule, even though the

declarant is available as a witness . . . (5) . . . A statement made for purposes of obtaining a medical diagnosis or treatment and describing medical

history, or past or present symptoms, pain, or sensations, or the inception

or general character of the cause or external source thereof, insofar as

reasonably pertinent to the medical diagnosis or treatment.’’

7 This court would not ordinarily address whether the trial court properly

admitted evidence pursuant to one exception of the hearsay rule when our

review reveals, as it does in this case, that the court properly admitted the

same evidence pursuant to another exception. See State v. Giovanni P.,

155 Conn. App. 322, 331–32 n.11, 110 A.3d 442, cert. denied, 316 Conn. 909,

111 A.3d 883 (2015). We do so here, however, because the defendant’s claim

raises the important question of whether the standard for admission of

forensic interview evidence under the tender years exception to the hearsay

rule is essentially coterminous with the standard for admission of the same

evidence under the medical diagnosis and treatment exception.

8

‘‘Under Crawford v. Washington, supra, 541 U.S. [68–69], the hearsay

statements of an unavailable witness that are testimonial in nature may be

admitted under the sixth amendment’s confrontation clause only if the

defendant has had a prior opportunity to cross-examine the declarant. Hearsay statements that are nontestimonial in nature are not governed by the

confrontation clause, and their admissibility is governed solely by the rules

of evidence. . . . Thus, the threshold inquiry for purposes of the admissibility of such statements under the confrontation clause is whether they are

testimonial in nature.’’ (Internal quotation marks omitted.) State v. Maguire,

supra, 310 Conn. 564 n.14.

9 The court in Arroyo chose to dispose of the defendant’s confrontation

clause claim on the ground that the statements were not testimonial hearsay.

State v. Arroyo, supra, 284 Conn. 621. The court could have chosen, however,

to analyze the defendant’s claim under the confrontation clause on the

ground that because the victim testified at trial and was subject to crossexamination, there could be no sixth amendment violation even if the statement was testimonial. The court in Arroyo did not explain why it chose to

dispose of the confrontation clause claim on the basis that it did rather than

on some other ground.

10 We note that subsequent to Maguire, the defendant’s trial, and argument
and briefing in this appeal, the United States Supreme Court decided Ohio

v. Clark, U.S. , 135 S. Ct. 2173, 2181, 192 L. Ed. 2d 306 (2015), in

which it held that statements made by a three year old child to his schoolteacher were not testimonial under Crawford. Clark is distinguishable from

the present case in several respects. First, the statements in Clark ‘‘occurred

in the context of an ongoing emergency involving suspected child abuse

. . . [b]ecause the teachers needed to know whether it was safe to release

[the victim] to his guardian at the end of the day . . . .’’ Id. In the present

case, no similar ongoing emergency existed because the defendant was not

the victims’ guardian and their mother was therefore free to keep the victims

separated from him.

Second, in Clark, ‘‘[t]he teachers asked [the victim] about his injuries

immediately upon discovering them, in the informal setting of a preschool

lunchroom and classroom, and they did so precisely as any concerned citizen

would talk to a child who might be the victim of abuse.’’ Id. Here, however,

the victims were questioned after reporting their injuries to their mother,

in the setting of a formal interview, which was conducted systematically by

two professionals whose purpose was to elicit comprehensive information

specifically related to the nature and extent of the alleged abuse. Accordingly, Clark does not undermine our conclusion that the statements in the

present case are inadmissible under the tender years exception.

11 We recognize that these questions may serve a dual purpose because

eliciting these details may, in many instances, assist medical professionals

in making a diagnosis and developing a treatment plan.

12 Again, we emphasize that the discussion in Arroyo regarding whether

the statements were testimonial was necessary only because the court was

addressing a direct Crawford challenge.

13 The concurrence asserts that the court in Maguire ‘‘recognized that,

while §§ 8-3 and 8-10 of the Connecticut Code of Evidence relate to the

admissibility of statements made, respectively, for medical purposes and

statements on other issues by children of tender years, when they result

from forensic interviews, they are ‘similar’ . . . .’’ We do not read Maguire

in the same manner. Rather, as we have discussed, the court in Maguire

stated that statements elicited during a forensic interview that are admissible under the tender years exception are similar to statements made to a

physician while seeking medical treatment, which are also admissible under

the medical treatment and diagnosis exception. See State v. Maguire, supra,

310 Conn. 569 (‘‘statements made in the course of a forensic interview that

satisfy the criteria for admission underthe tender years exception are similar

to statements made to a physician in the course of medical treatment, which

are admissible under the medical treatment and diagnosis exception to the

hearsay rule’’). Thus, the court’s comparison pertained only to statements

deemed admissible under both exceptions. We do not read this language

to mean that a statement inadmissible under the tender years exception

will always be inadmissible under the hearsay exception for statements

made for medical treatment.

The concurrence asserts that ‘‘[o]ur Supreme Court has addressed both

[§§ 8-3 and 8-10 of the Connecticut Code of Evidence] in Maguire and, by

inference, has given us the ‘primary purpose’ guide for the medical treatment

exception.’’ As discussed in the preceding paragraph, the court in Maguire

did not consider whether the statements challenged in that case were admissible under the medical treatment and diagnosis exception to the hearsay

rule, but only whether they were admissible under the tender years exception. Thus, contrary to the concurrence’s assertion, Maguire does not suggest

that the primary purpose inquiry governs the admissibility of forensic interview statements under the medical diagnosis and treatment exception.

Finally, we note that although the challenged statements in Arroyo were

offered under the medical diagnosis and treatment exception; see State v.

Arroyo, supra, 284 Conn. 625; and the court therein engaged in a primary

purpose analysis to determine whether their admission was barred by the

sixth amendment; id., 626–36; the primary purpose analysis would have been

entirely unnecessary in the absence of a Crawford challenge. The court

engaged in the primary purpose analysis in Arroyo only because the defendant in Arroyo raised a direct confrontation clause claim under the sixth

amendment. Id., 625. In fact, the court in Arroyo determined, apart from

its primary purpose analysis, that the trial court properly admitted the

victim’s statements pursuant to the medical diagnosis and treatment exception to the hearsay rule. See id., 635 n.23. In doing so, it concluded, inter

alia, that the challenged statements were made ‘‘in furtherance of obtaining

medical treatment . . . .’’ Id. This separate analysis apart from the primary

purpose inquiry further suggests that the court did not consider the primary

purpose test to govern the admissibility of statements under the medical

diagnosis and treatment exception.
14 The concurrence in footnote 2 cites to two portions of C. Tait & E.

Prescott, Connecticut Evidence (4th Ed. 2008) § 8.4.2, p. 465, in support of

its conclusion that the statements were inadmissible under the hearsay

exception for statements made for purposes of obtaining medical diagnosis

or treatment. Neither of these references supports its conclusion that the

statement should not have been admitted under that exception.

First, the concurrence quotes a portion of the treatise that discusses the

theoretical bases for hearsay exceptions in general, which bases include

‘‘some consideration of necessity.’’ Id. The concurrence states that ‘‘defense

counsel’s objection on the [ground of] lack of any necessity was persuasive

because both children had already testified under oath.’’ Necessity, however,

is an express requirement that a proponent must meet only for the residual

exception to the hearsay rule. See Conn. Code Evid. § 8-9. With respect to

the hearsay exception for statements made for purposes of obtaining medical

diagnosis or treatment, necessity is not an important consideration because

the exception exists even if the declarant, as in this case, is available as a

witness. See C. Tait & E. Prescott, Connecticut Evidence (5th Ed. 2014)

§ 8.4.2, pp. 510–11. Indeed, § 8-3 of the Connecticut Code of Evidence explicitly provides: ‘‘The following are not excluded by the hearsay rule, even

though the declarant is available as a witness . . . (5) Statement for purposes of obtaining medical diagnosis ortreatment.’’ Instead, such statements

are admitted under the exception in the absence of necessity and even if

the declarant testifies, because such statements are made ‘‘under circumstances in which there is a motive to tell the truth, or at least a motive to

lie is unlikely.’’ C. Tait & E. Prescott, supra, § 8.4.2 (b) (3), p. 512.

Second, the concurrence also cites to the treatise’s concern that statements made to law enforcement or investigative agencies should be ‘‘carefully reviewed’’ because they ‘‘may be less than voluntary or may be

motivated by the incentive to generate evidence.’’ C. Tait & E. Prescott,

Connecticut Evidence (4th Ed. 2008) § 6.37.5, p. 391. As the concurrence

concedes, however, these concerns are contained in the treatise’s analysis

of the constancy of accusation rule, and the statements in this case were

not offered under that rule. In sexual assault cases, however, statements

made by adult victims to health care providers for necessary medical diagnosis and treatment following a sexual assault are routinely admitted for

substantive purposes under § 8-3 (5) of the Connecticut Code of Evidence.

In this case, the issue we must decide is whether the children’s statements

during the interviews were reasonably pertinent to obtaining medical diagnosis or treatment. Under that standard, which we determined differs from

and is more relaxed than the tender years exception, we must conclude

that the court did not abuse its discretion in admitting the statements.

15 Although the prosecutor’s comments were not improper in the context

of this case, we encourage counsel who believe that opposing counsel has

presented argument not permitted by the Code of Evidence to seek an

instruction from the court directing the jury to disregard the improper

argument.

16 The defendant also claims that the prosecutor improperly expressed

the opinion that the defendant was ‘‘abnormal.’’ As previously discussed,

we have concluded that the comments underlying this claim were a proper

response to arguments made by defense counsel at closing argument. See

part II A of this opinion. For this reason, we do not address them again here.