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STATE OF CONNECTICUT v. JOSE SALAZAR
(AC 35153)
DiPentima, C. J., and Beach and Keller, Js.
Argued March 11—officially released July 8, 2014
(Appeal from Superior Court, judicial district of
Waterbury, Prescott, J.)
David J. Reich, assigned counsel, for the appellant
(defendant).
Emily D. Trudeau, deputy assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Elena Palermo, assistant state’s attorney,
for the appellee (state).
Opinion
BEACH, J. The defendant, Jose Salazar, appeals from
the judgment of conviction, rendered after a jury trial,
of two counts of sexual assault in the fourth degree in
violation of General Statutes § 53a-73a (a) (1) (A), and
two counts of risk of injury to a child in violation of
General Statutes § 53-21 (a) (2). The defendant claims
that (1) prosecutorial improprieties during the prosecu-
tor’s closing and rebuttal arguments deprived him of
his due process right to a fair trial, and (2) this court
should prohibit the use of constancy of accusation evi-
dence in sexual assault cases involving children. We
disagree, and we affirm the judgment of the trial court.
The following facts, as reasonably could have been
found by the jury, and procedural history are relevant.
At trial, the victim1 testified that in January, 2006, when
she was ten years old, she met the defendant, who at
that time was her mother’s boyfriend. She testified that
the defendant had, on various occasions, entered her
bedroom at night and sexually molested her by touching
her breasts and vagina. She testified that the defendant
threatened to hurt her mother if she told anyone about
the abuse. The victim also testified that she did not
want to ‘‘ruin her mom’s happiness’’ by reporting the
abuse; her mother had not been happy since her father’s
death years prior. The mother’s relationship with the
defendant ended in late 2006.
At a later time, however, the victim did report the
abuse to several people. Sarah McLeod, a therapist,2
conducted a group therapy exercise in which the victim
and other participants were asked to make time lines
of important moments in their lives. The victim indi-
cated on her time line that she had been ‘‘touched.’’
After speaking to the victim about the abuse, McLeod
referred her to another therapist, Gira Valentin Cuffee.
The victim told Cuffee that she had been sexually
assaulted by her mother’s former boyfriend, the defen-
dant. The police were notified, and Detective Cathleen
Knapp contacted the victim, who did not feel comfort-
able providing details of the abuse at that time. The
victim later approached Knapp, described the abuse,
and identified the defendant as the perpetrator.
The victim testified at trial about the facts of the
assault and identified the defendant as the assailant.
She testified about her reporting of the assault to several
people. The state then elicited testimony from three
constancy of accusation witnesses: McLeod, Cuffee,
and Knapp. The defendant was found guilty on all
counts and was sentenced to a total effective term of
twelve years incarceration, execution suspended after
four years, and ten years probation. This appeal
followed.
I
The defendant claims that he was deprived of his due
process right to a fair trial because the prosecutor,
during final arguments, improperly urged the jury to
use constancy of accusation evidence substantively. We
are not persuaded.
‘‘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. . . . Sec-
ond, 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 fair-
ness of the trial. Whether that impropriety was harmful
and thus caused or contributed to a due process viola-
tion involves a separate and distinct inquiry. . . .
‘‘In determining whether the defendant was denied
a fair trial . . . we must view the prosecutor’s [actions]
in the context of the entire trial.’’ (Citations omitted;
internal quotation marks omitted.) State v. Fauci, 282
Conn. 23, 32, 917 A.2d 978 (2007). ‘‘[W]hen 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 . . . .’’
(Internal quotation marks omitted.) State v. Otto, 305
Conn. 51, 77, 43 A.3d 629 (2012).
‘‘[P]rosecutorial [impropriety] of a constitutional
magnitude can occur in the course of closing argu-
ments. . . . [B]ecause closing arguments often have a
rough and tumble quality about them, some leeway
must be afforded to the advocates in offering arguments
to the jury in final argument. [I]n addressing the jury,
[c]ounsel must be allowed a generous latitude in argu-
ment, as the limits of legitimate argument and fair com-
ment cannot be determined precisely by rule and line,
and something must be allowed for the zeal of counsel
in the heat of argument. . . . Nevertheless, [w]hile a
prosecutor may argue the state’s case forcefully, such
argument must be fair and based upon the facts in
evidence and the reasonable inferences to be drawn
therefrom.’’ (Citation omitted; internal quotation marks
omitted.) State v. Necaise, 97 Conn. App. 214, 229–30,
904 A.2d 245, cert. denied, 280 Conn. 942, 912 A.2d
478 (2006).
The defendant claims that the state improperly
argued before the jury that constancy of accusation
evidence could be used substantively for proving the
truth of the accusation, rather than merely as corrobora-
tion of the victim’s testimony. There is no claim, in
this context, that the evidence itself was improperly
admitted. Our Supreme Court summarized the pre-
viously existing law as follows: ‘‘In sex-related crime
cases, we have long recognized that a witness, to whom
a victim has complained of the offense, could testify
not only to the fact that a complaint was made but
also to its details. . . . In approving the admission of
constancy of accusation testimony, we have explained
that it would be natural for the victim of actual or
attempted sexual assault to relate the incident to others
if it had actually happened, but not if the incident had
not occurred. Similarly, the victim’s recitation of the
details of the incident would likely be constant if the
claim were true, but discrepancies would be more likely
to appear if the incident had not occurred.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Troupe, 237 Conn. 284, 290–91 n.7, 677 A.2d 917 (1996).
The court went on to modify the constancy of accusa-
tion doctrine and explained the need to protect against
the preconception ‘‘that women who do not complain
[shortly after the crime] have not really been raped.’’
(Internal quotation marks omitted.) Id., 302. But the
court also recognized that defendants may be unfairly
harmed by the admission of substantive hearsay evi-
dence. The prejudice is ‘‘magnified if the victim has
reported the alleged offense to a number of persons,
all of whom are permitted to testify about the details
of the complaint. In such circumstances, there is an
enhanced risk that the jury may be unduly swayed by
the repeated iteration of the constancy of accusation
testimony.’’ Id., 302–303. The court then stated that its
‘‘evaluation of these competing considerations per-
suades us that the scope of our current [constancy
of accusation] doctrine is broader than necessary to
protect against the unwarranted, but nonetheless per-
sistent, view that a sexual assault victim who does not
report the crime cannot be trusted to testify truthfully
about the incident. Although we are not yet willing to
reject the constancy of accusation doctrine completely
due to biases still extant in our society, we are per-
suaded that restricting the evidence adduced thereun-
der to testimony regarding the fact of the complaint
provides a more reasonable accommodation of the
interests of the defendant, the state and the victim than
does our current rule.’’ Id., 303.
Our Supreme Court concluded ‘‘that a person to
whom a sexual assault victim has reported the assault
may testify only with respect to the fact and timing of
the victim’s complaint; any testimony by the witness
regarding the details surrounding the assault must be
strictly limited to those necessary to associate the vic-
tim’s complaint with the pending charge, including, for
example, the time and place of the attack or the identity
of the alleged perpetrator. In all other respects, our
current rules remain in effect. Thus, such evidence is
admissible only to corroborate the victim’s testimony
and not for substantive purposes. Before the evidence
may be admitted, therefore, the victim must first have
testified concerning the facts of the sexual assault and
the identity of the person or persons to whom the inci-
dent was reported. . . . In addition, the defendant is
entitled to an instruction that any delay by the victim
in reporting the incident is a matter for the jury to
consider in evaluating the weight of the victim’s testi-
mony.’’ (Footnotes omitted.) Id., 304–305.
The holding in Troupe was later codified in § 6-11
(c) of the Connecticut Code of Evidence, which pro-
vides: ‘‘A person to whom a sexual assault victim has
reported the alleged assault may testify that the allega-
tion was made and when it was made, provided the
victim has testified to the facts of the alleged assault
and to the identity of the person or persons to whom
the assault was reported. Any testimony by the witness
about details of the assault shall be limited to those
details necessary to associate the victim’s allegations
with the pending charge. The testimony of the witness
is admissible only to corroborate the victim’s testimony
and not for substantive purposes.’’
A
The defendant argues that the prosecutor improperly
used constancy of accusation testimony during closing
and rebuttal arguments not only to bolster the victim’s
credibility by corroborating her testimony, but also to
suggest that the disclosures were themselves true. He
contends that this use of constancy of accusation testi-
mony was improper because the sole permissible use of
such testimony under Troupe is to counteract a perhaps
false perception that a victim’s credibility is dubious
because she did not disclose the incident promptly to
the authorities.
1
The defendant argues that the prosecutor improperly
suggested to the jury that the victim’s statements to
McLeod and Cuffee were true because of the circum-
stances under which they were given. He claims that
the prosecutor argued that because the victim did not
know that McLeod would ask her to create a timetable,
this disclosure was spontaneous and therefore credible,
and that because the victim initially did not want the
therapist, Cuffee, to call the police, the victim’s state-
ments to Cuffee were correspondingly more credible,
as they were made reluctantly and not with an eye
to prosecution.3
The defendant also argues that the prosecutor urged
that the victim’s statements to Knapp were credible by
stressing Knapp’s credentials in talking to children. The
prosecutor stated in closing argument: ‘‘Detective
Knapp is in the sex crimes unit. She has experience
talking to children.’’
These arguments of the prosecutor were not
improper. They stressed details surrounding the vic-
tim’s disclosure rather than details of the actual miscon-
duct. Pertaining to the circumstances of the victim’s
disclosures, the arguments stressed the context of the
disclosures for an understanding, perhaps, of the
approximately three year delay in disclosure. The cir-
cumstances under which the victim related the incident
to McLeod, Cuffee and Knapp arguably assisted the jury
in evaluating whether the victim’s complaints to these
constancy witnesses corroborated her in-court testi-
mony. The statements are relevant to the biases that
our Supreme Court in Troupe sought to address—that
victims who do not complain of the sexual assault
shortly after the event have not been sexually assaulted.
State v. Troupe, supra, 237 Conn. 302. The statements
in issue do not contain reiterations of the details of
the assault. The prosecutor stressed certain evidence
admitted at trial, and the defendant does not claim that
the evidence was improperly admitted. ‘‘It is not . . .
improper for the prosecutor to comment upon the evi-
dence 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).
2
The defendant further argues that the prosecutor
improperly bolstered the credibility of the victim’s com-
plaints when she stated during closing argument that
the victim did not hesitate in identifying the defendant
as the assailant from a photographic array because
‘‘[s]he knew that he sexually assaulted her. Hard thing
to forget.’’4
Under Troupe, constancy of accusation testimony
properly is limited to details that are ‘‘necessary to
associate the victim’s complaint with the pending
charge, including, for example, the time and place of
the attack or the identity of the alleged perpetrator.
. . . [S]uch evidence is admissible only to corroborate
the victim’s testimony and not for substantive pur-
poses.’’ State v. Troupe, supra, 237 Conn. 304. The prose-
cutor argued that the reason that the victim did not
hesitate when identifying the defendant as her assailant
was that the victim ‘‘knew that [the defendant had]
sexually assaulted her’’ and that such an event is a
‘‘[h]ard thing to forget.’’ The victim’s identification of
the defendant to Knapp was admitted for the purpose
of corroborating the victim’s testimony pursuant to the
constancy of accusation doctrine. The prosecutor’s
comments in this respect, however, encouraged the jury
to use the evidence of the victim’s identification of the
defendant to Knapp substantively. Although the evi-
dence was properly admitted at trial, it ‘‘may not be
used for a purpose for which it was not admitted.’’
State v. Camacho, 282 Conn. 328, 377, 924 A.2d 99, cert.
denied, 552 U.S. 956, 128 S. Ct. 388, 169 L. Ed. 2d 273
(2007). Accordingly, the prosecutor’s comments urging
the evidence to be used substantively were improper.
See State v. Kelly, 106 Conn. App. 414, 432–33, 942 A.2d
440 (2008) (prosecutor’s use during closing argument
of constancy evidence for substantive purposes
improper).
3
The defendant also argues that the following state-
ment made by the prosecutor during closing argument
was improper: ‘‘And the witnesses that you heard, Sarah
McLeod, Gigi Valentin [Cuffee] . . . Detective Knapp,
all said she said it was her mom’s ex-boyfriend. He was
identified as [the defendant]. It was on [a certain street]
in [town].5 . . . No conflicts about who it was, where
it occurred, what he did.’’ (Emphasis added.)
Constancy of accusation testimony can properly be
used to corroborate the victim’s testimony. State v.
Troupe, supra, 237 Conn. 304–305. The fact that there
were no conflicts in the testimony of the constancy of
accusation witnesses was properly used to corroborate
the victim’s testimony. The statements, however, were
subject to ambiguity because they could also have been
interpreted as encouraging the jury to use the constancy
testimony for substantive purposes. ‘‘[C]losing argu-
ments of counsel . . . are seldom carefully con-
structed in toto before the event; improvisation
frequently results in syntax left imperfect and meaning
less than crystal clear. While these general observations
in no way justify prosecutorial [impropriety], they do
suggest that a court should not lightly infer that a prose-
cutor 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. Luster, supra, 279 Conn. 441.
We do not conclude that there was error simply because
the meaning of an isolated statement was unclear. See
State v. Schiller, 115 Conn. App. 189, 196, 972 A.2d 272,
cert. denied, 293 Conn. 910, 978 A.2d 1113 (2009).
4
The defendant also argues that the following state-
ment made by the prosecutor during rebuttal argument
was improper: ‘‘[T]here was no relationship in 2009
with [the victim] and the defendant. The mother wasn’t
involved in the defendant’s life in 2009. There was noth-
ing going on with [the defendant]. He had long been
out of their lives. There was . . . no motive to lie. What
she did was told the truth.’’ (Emphasis added.)
‘‘[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.)
State v. Stevenson, 269 Conn. 563, 585, 849 A.2d 626
(2004). The comments related to the victim’s lack of
motive to lie were followed by a statement that the
victim ‘‘told the truth.’’ This statement is ambiguous
because it is not clear whether the statement referred
to the victim’s lack of motive to lie in her testimony to
the jury or her lack of motive to lie in the substance
of her statements to the constancy witnesses. If the
statement were interpreted to mean that the victim ‘‘told
the truth’’ in her complaints to the constancy witnesses,
then the statement would be improper because it would
encourage the jury to use constancy evidence for sub-
stantive purposes. Nevertheless, because the meaning
of the statement is unclear, we do not conclude that
the prosecutor’s comment was improper. See State v.
Schiller, supra, 115 Conn. App. 196.
B
Having determined that some of the prosecutor’s
remarks were improper, we now turn to an analysis of
whether those remarks deprived the defendant of a fair
trial. ‘‘[A] determination of whether the defendant was
deprived of his right to a fair trial . . . involve[s] the
application of the factors set out . . . in State v. Wil-
liams, 204 Conn. 523, 540, 529 A.2d 653 (1987). As
[the court] stated in that case: In determining whether
prosecutorial [impropriety] was so serious as to amount
to a denial of due process, this court, in conformity with
courts in other jurisdictions, has focused on several
factors. Among them are the extent to which the [impro-
priety] was invited by defense conduct or argument
. . . the severity of the [impropriety] . . . the fre-
quency of the [impropriety] . . . the centrality of the
[impropriety] to the critical issues in the case . . . the
strength of the curative measures adopted . . . and the
strength of the state’s case.’’ (Internal quotation marks
omitted.) State v. Fauci, supra, 282 Conn. 33–34.
Here, the state’s case was not particularly strong;
there was no physical evidence and it was the victim’s
word against that of the defendant. The issue of the
victim’s credibility, then, was a central issue at trial.
The improprieties were infrequent and were limited
to relatively minor isolated statements during closing
argument; they did not pervade the proceeding. See
State v. Jenkins, 70 Conn. App. 515, 542, 800 A.2d 1200,
cert. denied, 261 Conn. 927, 806 A.2d 1062 (2002). Fur-
thermore, the comments were not severe enough to
jeopardize the defendant’s right to a fair trial, and the
defendant did not object to the comments at trial. ‘‘To
the extent that defense counsel failed to raise an objec-
tion, that fact weighs against the defendant’s claim that
the improper conduct was harmful. . . . A failure to
object demonstrates that defense counsel presumably
[did] not view the alleged impropriety as prejudicial
enough to jeopardize seriously the defendant’s right to
a fair trial. . . . Given the defendant’s failure to object
[to the majority of the improprieties now alleged], only
instances of grossly egregious misconduct will be
severe enough to mandate reversal.’’ (Citations omitted;
internal quotation marks omitted.) State v. Wilson, 308
Conn. 412, 449, 64 A.3d 91 (2013).
Before any witness testified regarding constancy of
accusation, the court instructed the jury that it was not
to consider the statements made by the victim to the
constancy witnesses for the truth of the matter asserted,
but only for assessment of the victim’s credibility.6 In
its final instructions, the court reiterated that the state-
ments made by the victim to constancy witnesses ‘‘were
admitted solely to corroborate or not corroborate the
complainant’s testimony in court. The statements are
to be considered by you only in determining the weight
and the credibility you will give the complainant’s testi-
mony given here in court. These statements are not to
be considered by you to prove the truth of the matters
asserted . . . but are presented for you to consider
when assessing the credibility that you will give to the
complainant’s in-court testimony.’’
Accordingly, we conclude that the defendant has not
shown that ‘‘the trial as a whole was fundamentally
unfair and that the [impropriety] so infected the trial
with unfairness as to make the conviction a denial of
due process.’’ (Internal quotation marks omitted.) State
v. Singh, 259 Conn. 693, 723, 793 A.2d 226 (2002).
II
The defendant next claims that this court should mod-
ify the constancy of accusation doctrine so that it does
not apply to sexual assault cases involving minors.7 The
defendant is challenging the constancy of accusation
doctrine as modified by State v. Troupe, supra, 237
Conn. 284, and as codified by § 6-11 (c) of our evidence
code. The defendant’s thesis is that in this category of
case, expert testimony regarding a child’s reluctance
to report abuse is frequently admitted. Constancy of
accusation testimony, serving much the same purpose,
may be conceptually redundant and unfairly cumula-
tive, according to the defendant. We decline to address
this claim other than to note that ‘‘as an intermediate
appellate body, we are not at liberty to discard, modify,
reconsider, reevaluate or overrule the precedent of our
Supreme Court.’’ DePietro v. Dept. of Public Safety, 126
Conn. App. 414, 422 n.3, 11 A.3d 1149, cert. granted on
other grounds, 300 Conn. 932, 17 A.3d 69 (2011).
The judgment is affirmed.
In this opinion the other judges 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 victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
2
There is no indication in the record that McLeod had been conducting
therapy as treatment for any sort of sexual abuse.
3
The defendant does not point to specific statements made by the prosecu-
tor in this regard. In describing the time line, the prosecutor stated during
closing argument: ‘‘So, how did she disclose? When did she decide to dis-
close? . . . She was in a group activity, and she was asked by Sarah
McLeod—she and the rest of the girls—I want you to do a time line of your
lives. I want you to do a time line of the significant events that affect you,
who you are.’’ With respect to Cuffee’s informing the police of the allegations,
the prosecutor stated during closing argument that after the victim reported
the allegations to Cuffee, ‘‘[t]he police were called. But not because [the
victim] said, I want the police involved. The police were called because that
was the process.’’
4
In context, the statement was as follows: ‘‘[The victim] then was asked,
well, can you identify him? And she was shown a [photographic] array,
pictures, all together, of different men. She was asked, do you recognize
anyone, and if you do, who do you recognize and from where. And [the
victim] picked out [the defendant]. And she said that this is the man. I
recognize him, and I recognize him as the man who sexually assaulted me.
According to Detective Knapp, there was no hesitation. She knew that he
sexually assaulted her. Hard thing to forget.’’ (Emphasis added.)
5
The prosecutor stated the specific name of the street and town in which
the assault occurred. Because that information is not relevant to this appeal,
we have not included it in this opinion. See footnote 1 of this opinion.
6
The court’s instruction was as follows: ‘‘Ladies and gentlemen of the
jury, I’m going to give you an instruction at this point. [The victim] has
testified about some out-of-court statements that she made to [McLeod],
[Cuffee] and [Detective] Knapp. You cannot consider that testimony about
what she said to those individuals . . . for the truth of the matter contained
in those statements. What you can use them for is to assess her credibility
of the testimony that she’s giving here in court.’’
7
In his brief, the defendant states that the ‘‘Appellate Court may not be
the proper court’’ to grant the requested relief.