Opinion
No. CR06-348933
October 31, 2007.
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR NEW TRIAL
The defendant, Mark Reynolds, was charged by substitute information with the crimes of sexual assault in the first degree, kidnapping in the first degree, unlawful restraint in the first degree and coercion. He was tried before a jury that found him guilty of sexual assault in the first degree, unlawful restraint in the second degree, as a lesser included offense of unlawful restraint in the first degree, and coercion. The defendant has moved for a new trial. He alleges that the court erroneously failed to grant his motion for mistrial when the prosecutor engaged in the following conduct: She violated the court's ruling that no expert opinion would be permitted as to whether or not the defendant had sexually assaulted the victim; and she improperly vouched for the victim's credibility and, in doing so, impermissibly appealed to the jury's emotions, passions or prejudices.
The jury could have reasonably have found the following facts. The victim was walking to work on a cold morning in February or March 2006 when the defendant pulled up next to her in a black vehicle. There was a young child in the back seat. The defendant, who looked familiar to the victim, asked her if she wanted a ride. The victim said she did, and the defendant drove her to her place of employment in Waterbury. En route, the two discussed music and exchanged telephone numbers. The defendant, who is Jamaican, represented to the victim that he was a reggae artist.
The defendant called the victim several times in the ensuing days, and eventually they went out on a date. Toward the end of the evening, the defendant took the victim to an apartment where he put on a video of a reggae fest. The defendant flirted with the victim, but she was not receptive. The victim asked the defendant to take her home, and the defendant obliged.
On March 14, 2006, the victim was in her apartment a little before 1:00 a.m. when the defendant called and told her that he had acquired a video and pictures of her of an intimate nature. The victim was shocked to hear this and was unsure where such items could have come from. The defendant told the victim that he knew she was a good girl and would want to see the video and pictures. He stated, "If I was a grimy kind of person, I would just put them out there." The victim asked the defendant to bring the items to her apartment. The defendant refused but offered to let her see them at his house. The defendant picked up the victim, who was wearing her pajamas, and drove her to his apartment where he forcibly sexually assaulted her and then drove her home.
The following day, the victim went to the emergency room of St. Mary's Hospital in Waterbury where she was examined by Dr. Robert Kugler. Dr. Kugler examined the victim and prepared a rape kit. His examination of the victim was unremarkable except for his finding of an abrasion and a small tear within the labia around the vaginal opening. He testified that the tear was likely caused by something being introduced into the vagina.
The defendant testified. He denied that he had lured the victim to his apartment with a tale of a sex video and pictures of her. He admitted that he had sexual relations with her, but he testified that it had been consensual. He claimed that when he was driving the victim home that morning, she became upset when he indicated that he would not be seeing again very soon, and that she was not his girlfriend.
I
The defendant first argues that the court erred in not granting his motion for mistrial when the prosecutor "deliberately disobeyed the court's prior ruling" that neither party would be permitted to introduce expert evidence as to whether or not the victim had been sexually assaulted. The court reiterates that the prosecutor's actions did not warrant a mistrial.
Prior to the appearance of Dr. Kugler at trial, the court, in ruling on a defense motion, had ordered, based on § 7.3 of the Connecticut Code of Evidence, that no expert evidence could be adduced as to whether or not the defendant had sexually assaulted the victim. The court subsequently repeated this order to ensure that counsel understood it.
Section 7-3 of the Connecticut Code of Evidence provides: "Opinion on Ultimate Issue (a) General rule. Testimony in the form of an opinion is inadmissible if it embraces an ultimate issue to be decided by the trier of fact, except that, other than as provided in subsection (b), an expert witness may give an opinion that embraces an ultimate issue where the trier of fact needs expert assistance in deciding the issue. (b) Mental state or condition of defendant in a criminal case. `No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto, except that such expert witness may state his diagnosis of the mental state or condition of the defendant. The ultimate issue as to whether the defendant was criminally responsible for the crime charged is a matter for the trier of fact alone.' General Statutes § 54-86i."
The state called Dr. Kugler on its case-in-chief. On direct examination, the state questioned Dr. Kugler on his examination of the victim and the various samples of bodily fluids and substances that had been taken from her in the preparation of the rape kit. Kugler testified that he found an abrasion and small tear within the labia around the vaginal opening that was consistent with an allegation of penile penetration. However, he also testified that, based on his examination, he was unable to determine how that injury occurred.
The prosecutor then asked Kugler, "Now after you examined [the victim], did you form a diagnosis?" The witness said two words, "My diagnosis" and the defendant objected. The Court excused the jury and the following exchange occurred between the Court, Kugler and the state's attorney, Cynthia Serafini:
The victim's last name appears in the official trial transcript. To protect the identity of the victim and in keeping with the spirit of General Statutes § 54-86e, her name is omitted from this opinion.
THE COURT:. . . Let's see what was coming. You formed a diagnosis. That's a yes or no question. Your answer is?
THE WITNESS: Yes.
THE COURT: Next question is, what is your diagnosis?
MS. SERAFINI: That was coming, but I was going to — the question was going to be, and that diagnosis was based on what information?
THE WITNESS: The information provided to me by the patient.
Q. And your examination of her?
A. Not necessarily, no.
Q. Did that influence your diagnosis at all?
A. My diagnosis would still be sexual assault even in the absence of any physical findings based on what the patient told me.
Q. So that diagnosis is — withdraw that question.
You don't know or do you know, based on your diagnosis, how that injury occurred?
A. No. With certainty, no.
Q. So the diagnosis of sexual assault was based on the information that the complainant gave to you during your examination?
A. Yes.
MS. SERAFINI: That's where I'm going with that, your Honor.
The defendant contends that the court should have granted his motion for a mistrial because the state violated the court's order and, although the doctor did not answer the question of what his diagnosis was in the jury's presence, "the jury was left with a presumption of guilt based on the above mentioned objection thus, denying the defendant of his right to due process." The state answers that "the State at no time violated the court's ruling pertaining to the ultimate issue. The State at no time asked the doctor what his diagnosis was. Defendant's claim that the jury was left to wonder why the defense did not want the diagnosis to come into evidence and therefore was left with a presumption of guilt is pure speculation. The evidence in front of the jury was that the complainant had a vaginal abrasion. No diagnosis was ever testified to by any witness." (State's Opposition to Defendant's Motion for New Trial, p. 2.) The court agrees with the state.
"While the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial. . . and the whole proceedings are vitiated. . . If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided. . . The decision whether to grant a mistrial is within the sound discretion of the trial court." (Internal quotation marks omitted.) State v. Ortiz, 280 Conn. 686, 702, 911 A.2d 1055 (2006). "When a mistrial is sought on the ground that a prosecutor's improper remarks violated the defendant's constitutional right to due process of law the same standard applies. . . The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct." State v. Ubaldi, 190 Conn. 559, 562, 462 A.2d 1001 (1983).
The defendant's claim is based on what he characterizes as the prosecutor's disobedience of this court's order that, based on § 7.3 of the Connecticut Code of Evidence, no expert evidence could be adduced as to whether or not the defendant had sexually assaulted the victim. "It is well settled that prosecutorial disobedience of a trial court order, even one that the prosecutor considers legally incorrect, constitutes improper conduct." State v. Ortiz, supra, 280 Conn. 704.
See footnote 1.
Prosecutorial impropriety may occur in the course of direct examination of a witness. See Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d (1982); United States v. Malik, Docket No. 06-1591 (3rd Cir. July 27, 2007), p. 4; Phelps v. Duckworth, 582 F.Sup. 401, 408 (S.D.Ind. 1983), reversed on other grounds, 772 F.2d 1410 (7th Cir. 1985); State v. Giovannoni, 138 Wn.App. 1048 (2007); State v. Owens, Docket No. M2005-02571-CCA-R3-CD (Tenn.Crim.App. April 12, 2007); United States v. Evans, Docket No, 1:06-CR-161 (N.D.Ohio December 11, 2006); Commonwealth v. Delvalle, 443 Mass. 782, 794, 824 N.E.2d 830 (2005); State v. Tran, 124 Wn.App. 1012 (2004), review denied, 154 Wn.2d 1023, 116 P.3d 999 (2005); People v. Leonard, 638 N.W.2d 415, 416 (Mich. 2002) (Kelly, J., dissenting); Rairdon v. State, 557 N.W.2d 318, 322-25 (Minn. 1996); State v. Philbrook, 525 A.2d 1047, 1048 (Me. 1987). Such examination "may be so clearly inflammatory as to be incapable of correction by action of the court. . . In such instances there is a reasonable possibility that the improprieties in the cross-examination either contributed to the jury's verdict of guilty or negatively, foreclosed the jury from ever considering the possibility of acquittal. . . [T]he defendant in a claim of prosecutorial misconduct must establish that the prosecutorial misconduct was so serious as to amount to a denial of due process. . . In evaluating whether the misconduct rose to this level, [courts] consider the factors enumerated by [the] court in State v. Williams, [ 204 Conn. 523, 540, 529 A.2d 653 (1987)]. . . These factors include the extent to which the misconduct was invited by defense conduct or argument, the severity of the misconduct, the frequency of the misconduct, the centrality of the misconduct to the critical issues in the case, the strength of the curative measures adopted, and the strength of the state's case." (Citation omitted; internal quotation marks omitted.) State v. Ortiz, supra, 280 Conn. 705.
In State v. Fauci, 282 Conn. 23, 26 n. 2, 917 A.2d 978 (2007), the court stated that "the term `prosecutorial impropriety,' when reviewing allegedly improper statements by a prosecutor at trial, is more appropriate than the traditional term of `prosecutorial misconduct'. . ."
From a literal standpoint, the prosecutor did not violate the court's order that no expert evidence could be adduced as to whether or not the defendant had sexually assaulted the victim. Her question to the doctor did not elicit what his expert opinion was as to whether the victim had been sexually assaulted. Still it was preliminary to that question and, as she herself stated. "That's where I'm going with that, your Honor." In light of the court's unambiguous ruling. which it reiterated during the trial, "[w]e are at a loss to explain this conduct." Polk v. State, 170 S.W.3d 661, 668 (Tex.App.-Ft. Worth [2nd Dist.] 2005), cert. denied, 2006 Tex.Crim.App. 328 (2006).
Nevertheless, the court adheres to its ruling denying the defendant's motion for mistrial. First, as already observed, the question did not, literally, violate the court's order. Second, an improper question, standing alone, is less likely to warrant a mistrial than one that is followed by an answer.
Third, when the jury returned to the courtroom, the court advised the jury that it was going to "shortcut" the examination of Dr. Kugler by admitting into evidence two exhibits, thereby suggesting to the jury that whatever the doctor had to say was contained in those exhibits, neither of which, as redacted, contained a diagnosis.
Fourth, the court's final instructions informed the jury that "[q]uestions and objections by the lawyers are hot evidence. It is not the question or the suggestion in a question that is evidence; it's the answer that is evidence." See State v. Lasky, 43 Conn.App. 619, 685 A.2d 336 (1996), cert. denied, 239 Conn. 959, 688 A.2d 328 (1997), wherein the court concluded that the defendant failed to establish that he was prejudiced by certain questions posed to him by the prosecutor during cross-examination or that the trial court abused its discretion in denying his motion for a mistrial; the defendant's objections to those questions were sustained, the questions were withdrawn and the trial court specifically instructed the jury that questions and objections by the lawyers were not evidence. See State v. Person, 20 Conn.App. 115, 132, 564 A.2d 626 (1989) (trial court did not abuse its discretion in denying defendant's motions for mistrial following questions by prosecution concerning possible marijuana use in defendant's apartment; "[e]ven if the questions were improper. . . the fact that the questions were asked is not enough to deprive the defendant a fair trial, particularly where the court gave an appropriate cautionary instruction to the jury."), aff'd, 215 Conn. 653, 577 A.2d 1036 (1990), cert. denied, 498 U.S. 1048, 111 S.Ct. 756, 112 L.Ed.2d 776 (1991).
Finally, the court afforded the defendant unusually large leeway on his case-in-chief to present expert testimony of Dr. Jacoby rebutting and explaining that of Dr. Kugler. The court did not abuse its discretion in denying the defendant's motion for mistrial.
II
The second ground in the defendant's motion for new trial is that the state's "closing argument was filled with rhetorical questions all centered on the complainants' motivation for accusing the defendant of sexually assaulting her. Motivation testimony of the complainant was never elicited on either direct or cross examination. The state was inferring that the complainant would not have made the complaint of sexual assault and would not have gone through all the trouble if the complaint was not in fact true." The defendant argues that in making such an argument, "the prosecutor personally vouched for the complainant by inserting her personal opinion during the rebuttal portion of the State's closing argument" and doing so in a way that would strike the emotions of the jury.
During the course of her closing argument, the prosecutor said the following to the jury:
What would be her motivation for telling Dr. Kugler? Clearly she didn't know that the results were that she had an abrasion inside her vagina. She only knew what had happened to her. And counsel indicated to you the findings are unremarkable. Well, not when you get to the female genitalia examination where it says skin abrasion, and the doctor told you that that abrasion was inside her vagina, on the inside. And then when you read Dr. Kugler's report, he specifically says physical exam was remarkable only for a small abrasion or skin tear near the vaginal opening.
What would be her motivation for submitting herself to a physical examination where someone is going to take a Q-Tip and swab the inside of her mouth, swab the inside of her vagina, swab the inside of her anus. What would be her motivation for the taking of her blood? What would be her motivation for having to talk to a counselor from Safe Haven three times. What would be her motivation for taking to Sergeant Alectis. What would be her motivation for talking to you?
The defendant objected, stating: "This is an unfair representation of the evidence." The court overruled the objection.
"`As a general rule, prosecutors should not express their personal opinions about the guilt of the defendant, credibility of witnesses or evidence. . . A prosecutor, however, is permitted to argue to the jury that the evidence and the reasonable inferences to be drawn therefrom should lead the jury to a conclusion as to the credibility of witnesses. . . It is not improper for a prosecutor to comment on the credibility of a witness as long as he neither personally guarantees the witness' credibility nor implies that he has knowledge of the witness' credibility outside the record.'. . . State v. Serrano, 91 Conn.App. 227, 235, 880 A.2d 183, cert. denied, 276 Conn. 908, 884 A.2d 1029 (2005). In addition, `the state may properly argue that the witnesses had no apparent motive to lie.'. . . State v. Luster, 279 Conn. 414, 438, 902 A.2d 636 (2006)." State v. Blango, 103 Conn.App. 100, 116, 927 A.2d 964, cert. denied, 284 Conn. 913, 919 (2007).
The conclusion that the court reached in Blango applies here. "Contrary to the defendant's argument, the prosecutor's remarks in the present case did not constitute improper vouching for the victim's credibility; the prosecutor did not personally guarantee the victim's credibility, nor did she indicate that she had knowledge outside of the record about the victim's credibility. Rather, the prosecutor's remarks constituted fair comment on the evidence presented at trial and the reasonable inferences to be drawn therefrom. In arguing to the jury that the victim was telling the truth and had no motive to lie, the prosecutor properly rebutted the defendant's testimony that the victim had consented to the sexual encounter and that he never threatened her with a gun." Id., 116-17. In this case, the prosecutor's suggestion that the victim would not have put herself through the ordeal of the medical examination had she not been sexually assaulted, while itself open to argument, was not improper. Moreover, she did not even expressly assert that the victim had no motive to falsify but, rather, rhetorically, albeit repeatedly, asked the jury, "What would be her motivation. . .?" Finally, the prosecutor did not improperly appeal to the emotions, passions or prejudices of the jury. The argument she made did not go beyond the evidence. The prosecutor did not engage in improper argument. The motion for a new trial is denied.