State of Connecticut v. Alfredo Vargas

The defendant, Alfredo Vargas,
appeals from the judgment of conviction, rendered after
a jury trial, of sexual assault in the first degree in violation
of General Statutes § 53a-70 (a) (2) and risk of
injury to a child in violation of General Statutes § 53-
21 (a) (2). On appeal, the defendant claims that the trial
court denied improperly (1) remarked in the presence
of the jury as to the victim's competency to testify,
thereby bolstering the credibility of her testimony, (2)
restricted the defendant's cross-examination of several
of the state's key witnesses, (3) issued an inappropriate
jury instruction with respect to the victim's in-court
identification of the defendant as the perpetrator, (4)
demonstrated a lack of impartiality in its treatment of
the victim and the defendant, (5) allowed the state to
make improper remarks in its closing argument and (6)
denied the defendant's motion to unseal the victim's
confidential records.1 We reverse the judgment of the
trial court.

The following facts were adduced at trial. For several
years, up to and including October, 2000, the victim,
born April 25, 1996, often accompanied her father to
an Orthodox Jewish synagogue.2 During that period of
time, the defendant volunteered at the same synagogue
on the Sabbath and on holidays, performing various
tasks that Orthodox practice prohibits followers from
performing, including operating electrical appliances.
When the victim would accompany her father to the
synagogue, she would not partake in the religious services,
but would instead play in the backyard of the
synagogue where she occasionally had exposure to the
defendant. On some of those occasions during the summer
months of 2000 up to and including October 15,
2000, the defendant engaged in sexual intercourse with
the victim, to wit, digitally penetrating her anus, penetrating
her vagina and causing her to perform fellatio
on him. At the time of the sexual abuse, the victim was
four years old. Soon after the sexual abuse of October
15, 2000, the victim disclosed the abuse to various members
of her family, and the matter was then referred to
the local police, a pediatrician and a social worker.
In a two count amended information dated March
11, 2002, the state charged the defendant with sexual
assault in the first degree and risk of injury to a child.

A jury trial commenced on April 2, 2002, and, on April
10, 2002, the jury found the defendant guilty on both
counts. On May 24, 2002, the court imposed a total
effective sentence of fifteen years incarceration, execution
suspended after twelve years with ten years probation.
3

The defendant appeals from the judgment of
conviction.

I

The defendant's first claim is that the court improperly
remarked in the presence of the jury about the
victim's competency to testify such that the court
appeared to vouch for the credibility of her testimony.
Specifically, the defendant asserts that the court
declared to the jury its findings following the victim's
competency hearing and, on at least four additional
occasions during defense counsel's cross-examination
of the victim, repeated that finding in the presence
of the jury.4 We agree that the court's remarks were
improper and deprived the defendant of his right to a
fair trial.

The first challenged remark arose at the conclusion
of the court's voir dire of the victim to determine her
competency to testify.5 The court announced its finding
to the jury, stating: ‘‘I find a fundamental ability [in the
victim] to recognize that it's wrong to not tell the truth
in her own manner of speaking.''

Subsequently, during cross-examination of the victim,
defense counsel posed a question as to her knowledge
of what it means to tell the truth. The court
interjected: ‘‘I think I've already been satisfied that the
oath administered is sufficient to put me on notice
that she understands the nature of telling the truth and
penalty could follow for not telling the truth, as she
has learned in the common experiences of life. There
will be no need to further inquire on that subject.''
Later in the same cross-examination, defense counsel
posed a question to the victim about an out-of-court
statement she had made concerning what it meant to
tell the truth. Following an objection by the state, the
court stated: ‘‘Well, I can assure you of one thing, I've
already made that determination, and you have
inquired, bringing my attention to that function of the
court, and I have so indicated it to you.''
Defense counsel again attempted to question the victim
as to her out-of-court statement. Counsel asked:
‘‘Didn't you tell the lady at the hospital you did not
know what it meant to tell the truth?'' Following an
objection by the state, the court stated: ‘‘Let me point
out to you that while that may be true at that time and
place, my determination of her telling the truth and
the ability to do so is made at this time and place.
And, that would be sufficient for this court's purposes
at this time.'' (Emphasis added.)
Finally, the defendant challenges the following statements
made by the court during defense counsel's
cross-examination of the victim:

‘‘[Defense Counsel]: When you said this morning in
court that Fredo touched [you], [were] your mom and
dad there, too, at the same place?

‘‘[The Victim]: There, too?

‘‘[Prosecutor]: I'm going to object. . . . I'm certain
she, the witness, five-and-a-half years old, doesn't know
what that question means.

. . .

‘‘[Defense Counsel]: Your Honor, if the form is unacceptable
at this point, and is continuously obstructing
my cross-examination -

‘‘[Prosecutor]: She's a five-and-a-half year old girl -

‘‘[Defense Counsel]: I would submit that [the victim]
is incompetent to testify.

‘‘The Court: Well, I'll make that decision.

‘‘[Defense Counsel]: If that question is not understandable,
then I would submit that this witness is
incompetent.

‘‘The Court: And, if I determine the contrary, then I
am, what?

‘‘[Defense Counsel]: Your Honor, if you wish me to
proceed, I'll proceed.

‘‘The Court: Of course, you must proceed, you have
to defend your client, but do so within the rules. Do
you have another question?''

The defendant contends that those remarks conveyed
to the jury the court's opinion not only that the victim
was capable of telling the truth, but that she was, in
fact, telling the truth. The defendant further contends
that the aggregate effect of the court's remarks was
to bolster the victim's credibility improperly and to
undermine the defendant's right to have all issues of
credibility independently determined by the jury.
We begin by noting the well established rule that
‘‘[w]hile the competency of a witness is for the trial
court to evaluate, the credibility of a witness is for the
jury to determine.'' State v. Morant, 242 Conn. 666, 682,
701 A.2d 1 (1997). It is, therefore, fundamental that the
court cannot vouch for the credibility of the state's
witnesses. See State v. Camerone, 8 Conn. App. 317,
325–27, 513 A.2d 718 (1986). Furthermore, ‘‘[d]ue process
requires that there should be no [statement during
the trial] that appears to reject a defendant's credibility
and implies judicial support of a prosecution witness'
testimony. . . . The trial court should never assume a
position of advocacy, real or apparent, in a case before
it, and should avoid any displays of hostility or skepticism
toward the defendant's case, or of approbation
for the prosecution's. . . . A fine line separates proper
and improper judicial conduct and the judge must strive
to appear impartial and detached.'' (Citations omitted;
internal quotation marks omitted.) State v. Pharr, 44
Conn. App. 561, 569–70, 691 A.2d 1081 (1997). ‘‘Any
claim that the trial judge crossed the line between
impartiality and advocacy is subject to harmless error
analysis.'' (Internal quotation marks omitted.) State v.
Lopes, 78 Conn. App. 264, 275, 826 A.2d 1238, cert.
denied, 266 Conn. 902, 832 A.2d 66 (2003).

The essential inquiry is whether the court's remarks
appeared to imply judicial support of the victim's credibility,
thereby intruding on the function of the jury to
itself determine her credibility. We conclude that the
remarks had such an effect.

This court has stated that ‘‘[j]udges in this state . . .
are given wide latitude to comment fairly and reasonably
upon evidence received at trial, but the court must
refrain from making improper remarks which are indicative
of favor or condemnation . . . . Even though a
judge may take all reasonable steps necessary for the
orderly progress of the trial, he must always be cautious
and circumspect in his language and conduct.'' (Citations
omitted; internal quotation marks omitted.) State
v. Hardwick, 1 Conn. App. 609, 611, 475 A.2d 315, cert.
denied, 193 Conn. 804, 476 A.2d 145 (1984).
Admittedly, the judge's comments were neither
overtly partial toward the victim nor explicitly supportive
of her testimony. The measure of any improper
influence on the jury, however, must be assessed with
an eye toward the authoritative position of a judge
presiding over a trial and the corresponding propensity
of the jury to look to the judge for guidance in its
consideration of the case. Indeed, this court has recognized
that ‘‘[t]he influence of the trial judge on the jury
is necessarily and properly of great weight . . . and
jurors are ever watchful of the words that fall from him.
. . . These admonitions and cautions are prompted by
the truism that a jury has a natural tendency to look
to the trial judge for guidance, and may find it even
where it is not intended.'' (Citations omitted; internal
quotation marks omitted.) State v. Pharr, supra, 44
Conn. App. 569–70.

Central to a defendant's right to a fair trial is the right
to have issues of fact and credibility decided by the
jury. See State v. Hines, 187 Conn. 199, 210, 445 A.2d
314 (1982). Here, the court's remarks, viewed in the
aggregate, taken together with their fair implications,
worked prejudicially on the defendant because they
conveyed to the jury the court's own notions on matters
solely within the jury's province. In so doing, the court
trespassed both on the jury's function as sole arbiter
of credibility and the defendant's right to a trial in which
the jury's exercise of that function is not impeded.
Our cases hold that when error is of constitutional
dimension, it is reversible unless the state proves the
error harmless beyond a reasonable doubt. See State
v. Lopes, supra, 78 Conn. App. 275. The state has not
sustained its burden.

This is not a circumstance in which ‘‘the evidence
against the accused is so overwhelming that we can
conclude as a matter of law that the jury's verdict was
not influenced [by the trial court's comments].'' State
v. Cohane, 193 Conn. 474, 485, 479 A.2d 763, cert. denied,
469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984).
Quite to the contrary, because of the absence of any
scientific, medical or corroborating eyewitness testimony
linking the defendant with the criminal activity
with which he was charged, the jury's acceptance of
the victim's testimony was the only basis on which a
guilty verdict could have been returned. By effectively
vouching for the victim's credibility, the court detrimentally
undermined the defendant's theory of the case,
which was, quite simply, that her testimony was not
reliable. On the basis of the foregoing, we conclude
that it is likely that the jury's verdict was influenced
by the court's remarks. We accordingly find that the
state failed to sustain its burden of proving that the
court's improper remarks were harmless beyond a reasonable
doubt.

Related to and reinforcing our determination that
the court's remarks were not harmless was the court's
refusal to allow defense counsel to engage in meaningful
cross-examination of the victim, which could have
elicited impeachment evidence that may have diluted
the prejudicial impact of the court's remarks. Of the
five remarks the defendant challenges on appeal, three
of them were made by the court following attempts by
defense counsel to question the victim as to her ability
to tell the truth and, in particular, as to a prior inconsistent
statement the victim had made that she did not
know what it meant to tell the truth. In all three
instances, the court precluded defense counsel from
questioning the victim.

Our Supreme Court has underscored the importance
of cross-examination as to a minor victim's competency,
particularly when, as here, defense counsel did
not otherwise have an opportunity to challenge the
competency of the victim's testimony. See State v.
James, 211 Conn. 555, 565, 560 A.2d 426 (1989). In
James, our Supreme Court upheld the constitutionality
of General Statutes § 54-86h,6 the child victim competency
rule, against a claim that it violates the right
to confrontation by preventing defense counsel from
challenging the competency of a child victim. Recognizing
that ‘‘competency is closely related to credibility'';
State v. James, supra, 565; the court reasoned that a
child sexual assault victim is still subject to cross-examination
like any other witness and that any questions
defense counsel may have asked at a competency hearing
could be asked during cross-examination. Id.
Although it is not certain that the prohibited crossexamination
in this case would have elicited information
capable of mitigating the harm caused by the
court's remarks, the court's refusal to permit that line
of questioning compounded the impression created by
the improper remarks.

Further reinforcing our determination that the court's
remarks were not harmless was the court's jury instruc-
tion on the issue of the victim's in-court identification of
the defendant as the perpetrator. The court's instruction
directed the jury to accept as reliable the victim's incourt
identification of the defendant as the person who
had sexually assaulted her and thereby foreclosed jury
consideration on the issue of identity. In so instructing
the jury, the court effectively vouched for the credibility
of the victim's testimony on the identity of the perpetrator
and compounded the damage of its earlier remarks.
The inappropriateness of the court's instruction is
made apparent by the victim's obvious difficulty identifying
the defendant in court. During the state's case-inchief,
counsel and the victim entered into the following
colloquy:

‘‘[Prosecutor]: Okay . . . turn around and look at me
if you can, please. . . . [D]o you know somebody by
the name of Fredo?

‘‘[The Victim]: Yes.

‘‘[Prosecutor]: Okay. Do you see Fredo in the courtroom
today?

‘‘[The Victim]: No.

‘‘[Prosecutor]: Are you sure?

‘‘[The Victim]: No.

‘‘[Prosecutor]: If you stand up and look around, would
that help you?

‘‘[The Victim]: Mm-hmm.

‘‘[Prosecutor]: . . . [I]f you could, could you stand
up for me, please?

‘‘[The Victim]: Okay.

‘‘[Prosecutor]: And, Your Honor, with the court's permission,
if she could come down. (The witness stepped
off the witness stand.) . . .

‘‘[Prosecutor]: Okay . . . I want you to look at everybody
in the court - stand right here if you can. Thank
you.

‘‘[The Victim]: Right here?

‘‘[Prosecutor]: Right there. Stay right there. I want
you to look around the courtroom and tell me if you
see anybody that you recognize as Fredo?

‘‘[The Victim]: I don't know. I don't see Fredo.

. . .

‘‘[Prosecutor]: . . . [I]f you could just look around
the entire courtroom -

‘‘[The Victim]: I don't see Fredo.

‘‘[Prosecutor]: Okay. Look over here as well on the
other side of the courtroom.

‘‘[The Victim]: You mean right there?

‘‘[Prosecutor]: I'm not telling you anything. Do you
see anybody in the courtroom that looks like the person
that you know as Fredo?

‘‘[The Victim]: Fredo? No.

‘‘[Prosecutor]: Are you sure?

‘‘[The Victim]: No. . . .

‘‘[Prosecutor]: Again . . . could you look around the
courtroom please?

‘‘[The Victim]: Maybe the hair was gray.

‘‘[Prosecutor]: Maybe what?

‘‘[The Victim]: Maybe the hair was gray.

‘‘[Prosecutor]: Whose hair was gray?
‘‘[The Victim]: Maybe it was Fredo's hair was gray.

. . .

‘‘[Prosecutor]: Okay. Come over here if you can.
Stand right here. [The victim was brought to the center
of the courtroom.]

‘‘[Prosecutor]: Now . . . you were just saying something
a moment ago about maybe the hair was gray.
Whose hair were you talking about?

‘‘[The Victim]: Maybe was that guy right there.

‘‘[Prosecutor]: Which guy was that?

‘‘[The Victim]: Look, the gray hair up top.

‘‘[Prosecutor]: Could you go to the person in the
courtroom who you're talking about.

‘‘[The Victim]: Talking about?

‘‘[Prosecutor]: Who was the person with the gray hair
that you're talking about right now?

‘‘[The Victim]: Right there.

‘‘[Prosecutor]: If you could go over to -

‘‘[The Victim]: Next to the desk.

‘‘[Prosecutor]: Could you go over to that person
right now.

‘‘[The Victim]: Is he named Fredo?

‘‘[Prosecutor]: I'm asking - well, I'm not saying anything
to you, but can you go to the person, can you
point to the person that you're speaking of.

‘‘[Prosecutor]: Your Honor, may the record reflect
she's pointing to the defendant?

‘‘The Court: It may so indicate.''

That dialogue not only demonstrates the victim's difficulty
in identifying the defendant, but perhaps more
troubling is that it casts serious doubt on whether her
responses could accurately be characterized as an iden-
tification of the defendant as the perpetrator. The
excerpt raises the question of whether the victim was
pointing to the defendant to identify him as the perpetrator
or simply to clarify that he was the person about
whom she asked the prosecutor: ‘‘Is he named Fredo?''
Notwithstanding the uncertainty surrounding the victim's
identification of the defendant, the court not only
refused to charge the jury on the issue of identity, but
instructed the jury not to consider the issue at all. The
court instructed: ‘‘And you've heard argument and argument
about whether or not the identification of the
accused is an issue here. I'd like to bring some commonsensical
approach to that. . . . The question is, is this
the gentleman who was identified as being named
Fredo, Alfredo, is he the one at the synagogue on the
dates and times in question. . . . There isn't any question
that he's identified to be the person there. What
happened there and whether he did these things is
another issue, but don't get caught up in is [this] the
man. That issue is not one that the jury should spend
any time on.''

That instruction implicitly validated the credibility
and the sufficiency of the victim's in-court identification
of the defendant as the perpetrator and enhanced the
prejudicial impact of the court's earlier remarks.
We also reject the argument advanced by the state
that the court's curative instruction rendered the
remarks harmless. The court instructed the jury: ‘‘I
made a cursory examination to determine whether she
was aware of where she was. I made no determination
that she could be determined by me for your benefit;
I didn't find that she's truthful or not. That is for you.''
As a general matter, ‘‘[t]he jury is presumed, in the
absence of an indication to the contrary, to have followed
the instructions of the trial court.'' (Internal quotation
marks omitted.) State v. Chance, 236 Conn. 31,
51, 671 A.2d 323 (1996). Although our appellate courts
have always given great weight to curative instructions
in assessing claimed errors; see State v. Smith, 200
Conn. 544, 552, 512 A.2d 884 (1986); State v. Fernandez,
198 Conn. 1, 17, 501 A.2d 1195 (1985); our courts have
also recognized that ‘‘a curative instruction is not inevitably
sufficient to overcome . . . the impact of prejudice.''
(Internal quotation marks omitted.) State v.
Fernandez, supra, 17.

Although it is not possible to determine with precision
what prejudice a court's remarks might have on a
jury, the likelihood here of prejudice to the defendant's
case is apparent. In view of the significance of the
remarks to the central issue in the trial, i.e., the victim's
credibility, and the absence of corroborative evidence
of the defendant's guilt, the claimed curative instruction
was not likely to have neutralized the court's remarks
nor proscribed their prejudicial impact on the jury's
assessment of the victim's credibility. As we are persuaded
that the prejudicial impact of the court's
remarks ‘‘has probably overborne reasonable juror conscientiousness,''
we cannot accept the claimed efficacy
of the curative instruction. See id.

We conclude, therefore, that the court's remarks, particularly
when coupled with the restriction of the defendant's
cross-examination of the victim, improperly
bolstered the credibility of the victim's testimony in
violation of the defendant's right to a fair trial and
that the court's curative instruction did not render the
comments harmless. Accordingly, we reverse the judgment
of the trial court.

Although the defendant raised additional claims on
appeal, we need not address them inasmuch as our
holding with respect to the court's improper remarks
is dispositive. We choose, however, to address the
defendant's claim regarding the court's denial of his
motion to unseal the victim's confidential records
because that issue is likely to recur at retrial.

II

The defendant claims that the court improperly
denied his motion to unseal the victim's confidential
records in violation of his rights to due process and
to a fair trial. Specifically, the defendant asserts that
records generated by the department of children and
families and an educational institution attended by the
victim may contain information probative of past sexual
abuse in the victim's family, alternative sources of
knowledge of sexual language and conduct, and the
victim's testimonial capacity. The defendant claims that
the court's refusal to permit access to the records violated
his rights to due process and to a fair trial. We
disagree.

On March 14, 2002, the defendant filed a pretrial
motion requesting that the court unseal the victim's
confidential records. Following an in camera inspection
of the records, the court denied the defendant's motion.
‘‘While we are mindful that the defendant's task to
lay a foundation as to the likely relevance of records
to which he is not privy is not an easy one, we are also
mindful of the witness' legitimate interest in maintaining,
to the extent possible, the privacy of her confidential
records.'' (Internal quotation marks omitted.)
State v. Walsh, 52 Conn. App. 708, 722, 728 A.2d 15,
cert. denied, 249 Conn. 911, 733 A.2d 233 (1999). On
review, we must determine whether the trial court's
decision constituted an abuse of discretion. Id.
This court, on appeal, has the responsibility of conducting
its own in camera inspection of the sealed
records to determine if the trial court abused its discretion
in refusing to release those records to the defendant.
See State v. Tyson, 43 Conn. App. 61, 70, 682 A.2d
536, cert. denied, 239 Conn. 933, 683 A.2d 401 (1996).
We conclude that the court did not abuse its discretion.
‘‘The linchpin of the determination of the defendant's
access to the records is whether they sufficiently disclose
material especially probative of the ability to comprehend,
know and correctly relate the truth . . . so
as to justify breach of their confidentiality . . . .
Whether and to what extent access to the records
should be granted to protect the defendant's right of
confrontation must be determined on a case by case
basis.'' (Citation omitted; internal quotation marks omitted.)
State v. Walsh, supra, 52 Conn. App. 723. ‘‘[W]hen
the trial court has reviewed the records in camera,
access to the records must be left to the discretion of
the trial court which is better able to assess the probative
value of such evidence as it relates to the particular
case before it . . . and to weigh that value against the
interest in confidentiality of the records.'' (Internal quotation
marks omitted.) Id.

We have carefully examined the challenged records
and conclude that the court reasonably could have
found that they contained no information that is probative
of past sexual abuse in the victim's family, alternative
sources of knowledge of sexual language or
conduct, or the victim's testimonial capacity. Accordingly,
the court did not abuse its discretion in denying
the defendant's motion to unseal the victim's confidential
records.

Keyword: Felony