State v. James K.

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.

All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.

The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
 STATE OF CONNECTICUT v. JAMES K.*
(AC 42872)
Prescott, Moll and Suarez, Js.

Syllabus

Convicted of the crime of risk of injury to a child as a result of certain
physical contact with his minor daughter, the defendant appealed to
this court, claiming, inter alia, that the trial court violated his right to
be tried before an impartial jury when it prohibited his counsel from
asking prospective jurors during voir dire to express their opinions with
respect to parents who kiss their children on the lips. When the state
indicated it would seek to introduce into evidence a photograph of the
defendant kissing the victim’s half sister on the lips, defense counsel
objected. The trial court first precluded defense counsel from asking
prospective jurors about kissing on the lips because it was too specific
to the facts of the case and limited defense counsel to asking prospective
jurors about whether parents can have different methods of showing
physical affection to their children. Thereafter, the court ruled the photo-
graph inadmissible because it was prejudicial to the defendant. The
defendant also had been charged with two counts of sexual assault in
the first degree in connection with the incident with the victim. Although
the jury initially had been unable to reach a unanimous verdict as to
all three charges, the trial court delivered a ‘‘Chip Smith’’ instruction
urging the jury to reach a verdict, after which it returned its verdict,
which included a finding of not guilty as to the sexual assault
charges. Held:
1. The trial court did not abuse its discretion when it prohibited defense
counsel from asking prospective jurors to express their opinions with
respect to parents who kiss their children on the lips: contrary to the
defendant’s assertion that the court improperly limited the scope of his
voir dire because that issue was a central issue in the case and many
people view it as inappropriate and offensive, the court’s extremely
narrow ruling was limited only to that question, it prevented counsel
from improperly using voir dire to ascertain prospective jurors’ opinions
about evidence that would be presented at trial or implanting in their
minds an opinion about that evidence, and, by permitting inquiry about
the general topic of physical displays of affection, the court provided
counsel wide latitude to determine whether prospective jurors had preju-
dices against parents kissing their children on the lips, and properly
struck a balance between the competing considerations of protecting a
party’s inviolate right to ask questions to uncover prejudice and avoiding
inquiries that touch on facts before the jury; moreover, after the court
excluded the photograph from evidence, there was no photographic
evidence of the defendant kissing any child on the lips, the subject of
the defendant’s kissing the victim on the lips did not form the factual
basis of any of the offenses with which he was charged, and the prosecu-
tor did not rely on the evidence of kissing in her closing argument to
the jury; furthermore, the defendant failed to demonstrate that the
court’s ruling resulted in harmful prejudice, as the evidence of kissing
played only a slight role in the trial and was not inherently prejudicial
in nature, and the jury’s split verdict, in which it found the defendant
not guilty of the sexual assault charges, supported the conclusion that
the court’s limitation on voir dire did not result in a jury that was unable
to carefully and fairly consider each of the charges and the evidence
related thereto.
2. The defendant could not prevail on his claim that the trial court abused
its discretion by admitting into evidence a videotaped forensic interview
of the victim: rather than summarily rejecting the defendant’s assertion
that the video was unduly prejudicial and cumulative of the victim’s
testimony at trial, as the defendant claimed, the broad language of
the court’s ruling suggested that the court considered and rejected the
grounds of objection the defendant raised, and the court explicitly stated
that the video fell within the medical diagnosis and treatment exception
to the rule against hearsay (§ 8-3 (5)), with which the defendant agreed;
 moreover, the video was relevant and highly probative with respect to
the defendant’s conduct with the victim, the video was not admitted as
constancy of accusation evidence, as the defendant contended, and it
did not bolster the victim’s credibility, as the interview was conducted
by a clinical social worker, and the video did not contain the opinions
of expert witnesses or statements of third parties; furthermore, the video
was not unduly prejudicial, as it did not improperly emphasize the
victim’s testimony by permitting her to testify twice, it did not generate
sympathy for her, as any expressions of empathy by the interviewer
reflected her effort to build a rapport with the victim, and, although the
victim’s comments in the video were not identical to her trial testimony,
the different language she used in the video was not so different in
nature that it would likely engender strong feelings of sympathy over
that which may have been engendered by her testimony at trial.
3. The defendant failed to establish that the trial court violated his rights
to due process, to a fair and impartial trial, and to be convicted by
means of a unanimous verdict when it declined to use language in his
written request for instructions to urge the deadlocked jury to reach a
verdict and, instead used model instructions from the Judicial Branch
website: the defendant was not entitled to the instruction he proposed,
which condoned a hung jury, nothing concerning the context or circum-
stances in which the court delivered the model instructions led to the
conclusion that the instructions were coercive, as the fact that the jury
had engaged in deliberations for three days and requested the playback
of certain testimony and evidence prior to sending the court a note
stating that it was deadlocked merely reflected, at most, that the jury
was fulfilling its duty of carefully considering the evidence; moreover,
the jurors’ note and stated belief in that note that additional deliberation
time would not be fruitful did not make the court’s instructions coercive
or give the unwarranted impression that a verdict was required, as the
note did not refer to hostility among jurors or indicate they had not
followed their oaths or would not continue to follow their oaths after
additional instruction from the court.
4. This court declined to exercise its supervisory authority over the adminis-
tration of justice to require trial courts to instruct deadlocked juries
that they need not reach a verdict and that jurors have the right to
disagree with respect to the proper verdict; because the Supreme Court
has explicitly addressed the issue of what instructions are proper when
a jury is deadlocked, it would be inappropriate for this court to overrule,
reevaluate, or reexamine the propriety of the instructions.
Argued February 2—officially released December 28, 2021

Procedural History

Substitute information charging the defendant with
two counts of the crime of sexual assault in the first
degree and one count of the crime of risk of injury to
a child, brought to the Superior Court in the judicial
district of New Haven and tried to the jury before B.
Fischer, J.; thereafter, the court denied the defendant’s
motion to preclude certain evidence; verdict and judg-
ment of guilty of risk of injury to a child, from which
the defendant appealed to this court. Affirmed.
Pamela S. Nagy, Supervisory Assistant Public
Defender, for the appellant (defendant).
Samantha L. Oden, former deputy assistant state’s
attorney, with whom, on the brief, were Patrick J. Grif-
fin, state’s attorney, and Maxine V. Wilensky, senior
assistant state’s attorney, for the appellee (state).
 Opinion

SUAREZ, J. The defendant, James K., appeals from
the judgment of conviction, rendered following a jury
trial, of risk of injury to a child in violation of General
Statutes § 53-21 (a) (2).1 The defendant claims that (1)
the trial court violated his right to a fair trial and to be
tried before an impartial jury by restricting defense
counsel’s examination of prospective jurors, (2) the trial
court improperly admitted into evidence a videotaped
forensic interview of the victim, (3) the trial court vio-
lated his rights to due process, to a fair and impartial
trial, and to be convicted by means of a unanimous
verdict because the deadlocked jury instructions that
it provided to the jury were coercive and misleading,
and (4) this court, in the exercise of its supervisory
authority over the administration of justice, should
require trial courts, when delivering deadlocked jury
instructions, to instruct the jury that it need not reach
a verdict and that jurors have the right to disagree with
respect to the proper verdict. We affirm the judgment
of the trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
The defendant is the victim’s biological father. In 2010,
when the victim was approximately six years old, the
defendant obtained full physical custody of the victim as
a consequence of drug abuse and mental health issues
affecting the victim’s biological mother. Initially, the
victim resided with the defendant; her stepmother, M;
her half sister, H; and other relatives. The victim and
H are close in age, shared a close bond, and attended
the same school. Later, the defendant, M, H, and the
victim moved to a different residence.
On numerous occasions, the defendant used physical
force to discipline the victim and H. The defendant
often struck the victim on her buttocks, back, and arms
with his bare hands or physical objects such as a belt
or an extension cord. Occasionally, if the use of force
resulted in visible injuries to the victim, the defendant
would make the victim conceal her bruises with cloth-
ing or he would keep her home from school.
One night in 2011 or 2012, when the victim was seven
or eight years of age, the defendant verbally and physi-
cally assaulted M in the victim’s presence, following
which M and H left the residence. The victim, preparing
to take a shower, went into her bedroom, undressed,
and wrapped herself in a towel. The defendant entered
the bedroom and told the victim that he had received
a telephone call from her teacher and was upset to have
learned that the victim had misbehaved in class. After
the victim and the defendant discussed this matter, the
defendant instructed the victim to remove her towel
and bend over a nearby bed. The victim, expecting to
be struck by the defendant as a form of discipline,
complied with the defendant’s instruction.
The victim positioned herself on all fours on the bed.
As the defendant stood behind her, at the edge of the
bed, he touched the victim’s anus and her vagina with
his penis. Penetration did not occur.2 As the incident
progressed, the defendant pushed the victim down so
that her head and chest were on the bed. When the
victim told the defendant to stop touching her, he
responded by telling her to be quiet. Despite the fact
that the defendant’s hands were on the victim’s waist,
he stated that he was using ‘‘his thumb.’’ After a few
minutes, the defendant stopped what he was doing, told
the victim to remain bent over until he left her bedroom,
and walked into another room. The victim was confused
by the defendant’s conduct and knew that it was ‘‘bad
. . . .’’ She proceeded to use the shower. After the
victim showered, the defendant told her that they were
going out to get pizza for dinner, and he stated that
‘‘what happened in the house stays in the house.’’ The
victim understood this to mean that the defendant did
not want her to discuss what he had done to her in the
bedroom, and she believed that, if she told anyone about
it, it would either happen again or the defendant would
punish her by beating her.
The defendant and M later separated, and the victim
thereafter resided with the defendant and his new girl-
friend. The victim resided there until December, 2015,
when the defendant was arrested on charges unrelated
to the present case. The victim was placed in the cus-
tody of her maternal grandmother, B. Thereafter, the
Department of Children and Families (department)
investigated allegations that the victim had suffered
physical abuse caused by the defendant. The depart-
ment also investigated concerns expressed by B that
the defendant had acted inappropriately toward the
victim because he had a habit of kissing the victim on
the lips. Ultimately, the victim disclosed to a department
social worker that the defendant had done something
that made her uncomfortable and that he ‘‘tried to say
it was his finger . . . .’’ During a forensic interview at
Yale-New Haven Hospital’s Child Sexual Abuse Clinic
in 2016, the victim provided details of the incident
involving the defendant’s contact with her intimate
parts in her bedroom. The defendant’s arrest and con-
viction followed. Additional facts will be set forth as
necessary.
I
First, the defendant claims that the trial court violated
his right to a fair trial and to be tried before an impartial
jury by restricting defense counsel’s examination of
prospective jurors. Specifically, the defendant claims
that the court improperly prohibited defense counsel
from asking prospective jurors to express their opinions
with respect to parents who kiss their children on the
lips. We disagree.
 The following additional facts and procedural history
are relevant to this claim. On October 16, 2018, the
second day of jury selection, defense counsel alerted
the court to the fact that the state was in possession
of photographs depicting the defendant kissing H on
the lips. Defense counsel expressed her belief that the
state intended to introduce these photographs in evi-
dence over defense counsel’s objection. The court, B.
Fischer, J., added that, during the victim’s forensic
interview, the victim indicated that the defendant had
kissed her on the lips. In light of the possibility that
evidence of the defendant’s habit of kissing his daugh-
ters on the lips was likely to be before the jury, defense
counsel opined that some potential jurors would have
a very strong reaction to such evidence. She argued
that it was part of her obligation in selecting a fair and
impartial jury to ask prospective jurors to express their
feelings about that behavior. Defense counsel provided
the court with the type of inquiry she believed was
appropriate, stating: ‘‘I guess I would ask a venire-
person, do they have opinions about how parents might
show affection to their children and . . . might they
have opinions about whether parents kiss their children
. . . as part of showing affection, and might they also
have any strong opinions one way or another about
whether . . . it’s okay for parents to kiss their children
on the lips, in terms of . . . is that a common thing in
their mind in terms of showing affection.’’ The prosecu-
tor objected to any inquiry concerning kissing or ‘‘physi-
cally showing affections between a parent and child.’’
The court responded, ‘‘[t]he kissing is too fact spe-
cific. You know, prospective jurors may not be ques-
tioned regarding their predisposition to decide issues
with respect to evidence that may be offered at trial or
with the intent to condition them to prejudge issues
that will affect the outcome of the trial. I have no issues
with a question along the following lines . . . ‘Do you
understand that parents can have different methods
of showing physical affection to their children’ or a
question like that, but to specifically ask about kissing
on the lips is too fact specific.’’ Defense counsel asked
whether a question about kissing on the lips could be
asked in the event that a venireperson raised the issue.
The court stated that such a follow-up inquiry was not
permissible because it would be ‘‘too fact specific.’’ The
court clarified that defense counsel could ask questions
about a parent engaging in ‘‘different methods of show-
ing physical affection to their child’’ but that defense
counsel could not ask about kissing on the lips. Defense
counsel stated that she disagreed with the court’s ruling
but that she would abide by it.
Later, during the second day of jury selection, defense
counsel asked several venirepersons whether they had
opinions concerning how parents show affection to
their children.3 The prosecutor did not object to defense
counsel’s examination in this regard, and the court did
not interfere with the examination in this regard. For
example, during questioning of venireperson M.A., the
following colloquy occurred:
‘‘Q. . . . Do you have any opinion about how parents
show affection to children?
‘‘A. I think there’s a lot of different ways that parents
can show affection.
‘‘Q. It kind of runs the gamut, right?
‘‘A. Yep.
‘‘Q. In your personal opinion, do you think that, you
know, do you have, kind of like, what’s appropriate
versus inappropriate?
‘‘A. Well, I have, you know, how my parents showed
me affection throughout my life and . . . that’s basi-
cally it, you know.
‘‘Q. Okay. But if you saw sort of something other
than what your parents showed you.
‘‘A. Um-hm.
‘‘Q. Do you . . . you know, I guess would you just
have an opinion as to what was appropriate versus—
‘‘A. I wouldn’t make any sort of, like, judgmental
determinations on it if it was the proper way to show
affection or not.’’
During defense counsel’s examination of venire-
person K.G., the following colloquy occurred:
‘‘Q. How about different forms of parents showing
affection for their kid; do you think some are kind of
okay and some are not okay?
‘‘A. In terms of like hugging a child?
‘‘Q. Hugging. Kissing. Yeah.
‘‘A. Or just kissing your child, that’s fine.
‘‘Q. Okay. Anything that in your mind would cross
the line that you think is just totally inappropriate?
‘‘A. Not if it’s not abusive, no.’’
During defense counsel’s examination of venire-
person C.D., the following colloquy occurred:
‘‘Q. . . . Do you have any opinion about how parents
show children affection?
‘‘A. I think it’s great that they do. I think any parent
should show their children affection.
‘‘Q. Okay. Do you have an opinion as to . . . what
might be appropriate versus inappropriate?
‘‘A. That’s what I am when we’re hugging and, you
know, giving encouragement and being positive. That’s
kind of what I know.’’
 During defense counsel’s examination of venire-
person E.B., the following colloquy occurred:
‘‘Q. . . . Do you have any opinions about how par-
ents should show love or affection toward their children
physically?
‘‘A. As much as you can.
‘‘Q. Um-hm.
‘‘A. There’s a lot that you can do.
‘‘Q. Um-hm. Anything in your mind that, like, crossed
the line where it would become kind of inappropriate?
‘‘A. More than a hug and a kiss, I would imagine.’’
Finally, during defense counsel’s examination of
venireperson J.S., the following colloquy occurred:
‘‘Q. . . . Do you have any sort of opinion one way
or the other about how parents show affection for their
children?
‘‘A. I mean, yeah, I mean, there’s some parents that
will kiss their kids on the cheek, there’s other ones that
kiss their kids on the lips. I mean, different breakpoints,
to certain things.
‘‘Q. Right.
‘‘A. I mean, I’ve showered with both my daughters
when they were younger, but you get to a point where
it’s like, all right, now that’s gotta stop.
‘‘Q. Sure. Do you have any opinion one way or the
other, or you just know that it kind of happens?
‘‘A. I think that . . . it happens. Right. And . . . it
changes depending on the family dynamic.’’
The following day, the third day of jury selection, the
court invited the parties to make arguments concerning
the admissibility of a photograph of the defendant kiss-
ing H on the lips. The prosecutor represented that she
intended to introduce the photograph into evidence,
arguing that it was probative with respect to the type
of kissing the defendant engaged in with his daughters.
Defense counsel argued that the photograph was
‘‘inflammatory’’ and that it would arouse the passions
of the jurors. Defense counsel argued that, when com-
pared to the high degree of prejudice that flowed from
the photograph, it had only limited probative value, as
it was not direct evidence of any of the crimes with
which the defendant stood charged. Defense counsel
argued that it was misconduct evidence that merely
corroborated the victim’s testimony that the defendant
had a habit of kissing her on the lips.
The court excluded the photograph from evidence.
The court stated: ‘‘I’m not going to allow it in. It is a
picture of [H], who is not the complainant here. Clearly,
as I understand it, there will be evidence from the com-
plainant that the defendant did kiss her on the mouth
. . . but we’ll wait to hear that testimony. But this is
separate. This is not the complainant’s photo, it’s the
stepsister. The court finds it’s too inflammatory, too
prejudicial to the defendant.’’ During the remaining
three days of jury selection that followed the court’s
ruling, defense counsel did not question prospective
jurors about their opinions, if any, with respect to dis-
plays of affection between parents and their children.
Prior to the victim’s testimony at trial, defense coun-
sel expressly agreed that testimony about the fact that
the defendant had kissed the victim on the lips was
admissible. The victim subsequently testified that the
defendant had a habit of kissing her on the lips, that
this behavior ‘‘bother[ed]’’ her, and that she asked the
defendant to kiss her on the cheek instead. The victim
testified, however, that the defendant continued to kiss
her on the lips.4 Kelly Adams, a department investigator,
testified at trial that, when she spoke with B, she stated
that ‘‘she believed something happened because [the
defendant] would kiss [the victim on] the mouth and
she didn’t like it, she said it made her feel very uncom-
fortable . . . .’’ Adams further testified that B’s state-
ments led her to question the victim as to whether
anyone had done something that made her feel uncom-
fortable, and that this inquiry resulted in the victim’s
initial disclosure of sexual abuse by the defendant.
Adams testified that the defendant mentioned to her
that he was aware of the fact that others had told her
that he had kissed the victim on the lips but that he had
not behaved inappropriately. During closing argument,
the state did not rely on evidence related to the defen-
dant’s habit of kissing the victim on the lips.
As he did at trial, the defendant argues on appeal
that the court improperly limited the scope of his exami-
nation of prospective jurors. The defendant argues that
the evidence of the defendant’s kissing his daughter on
the lips was ‘‘highly controversial,’’ ‘‘many people view
[this type of behavior] as inappropriate and offensive,’’
the conduct ‘‘was a central issue in this case,’’ and the
court’s prohibition on questions directly addressing this
conduct ‘‘violated his constitutional rights to a fair trial
and to be tried by an impartial jury . . . .’’ The defen-
dant argues that the court’s ruling precluded him from
asking questions of prospective jurors that may have
reflected the existence of bias and impartiality. The
defendant argues that the inquiry he wanted to under-
take was not designed ‘‘to ask jurors how they would
decide the facts or issues in this case; rather, [the defen-
dant] wanted to determine if jurors would be unable
to judge this case fairly once they heard that evidence.’’
The defendant also argues that the curtailed inquiry
limited to forms of affection was not adequate, for it
failed to give him any insight as to whether potential
jurors had strong emotional reactions to a parent kiss-
ing a child on the lips.
 Having set forth the nature of the defendant’s claim,
we next set forth the relevant principles of law. ‘‘Voir
dire plays a critical function in assuring the criminal
defendant that his [or her] [s]ixth [a]mendment right
to an impartial jury will be honored. . . . Part of the
guarantee of a defendant’s right to an impartial jury is
an adequate voir dire to identify unqualified jurors. . . .
Our constitutional and statutory law permit each party,
typically through his or her attorney, to question each
prospective juror individually, outside the presence of
other prospective jurors, to determine [his or her] fit-
ness to serve on the jury. . . . Because the purpose of
voir dire is to discover if there is any likelihood that
some prejudice is in the [prospective] juror’s mind [that]
will even subconsciously affect his [or her] decision of
the case, the party who may be adversely affected
should be permitted [to ask] questions designed to
uncover that prejudice. This is particularly true with
reference to the defendant in a criminal case. . . . The
purpose of voir dire is to facilitate [the] intelligent exer-
cise of peremptory challenges and to help uncover fac-
tors that would dictate disqualification for cause.’’
(Internal quotation marks omitted.) State v. Holmes,
334 Conn. 202, 222–23, 221 A.3d 407 (2019); see also
State v. Rios, 74 Conn. App. 110, 114, 810 A.2d 812
(2002) (discussing constitutional and statutory basis for
right to question prospective jurors individually), cert.
denied, 262 Conn. 945, 815 A.2d 677 (2003). Moreover,
we recognize that the right to a voir dire examination of
each prospective juror to elicit the indicia of prejudice
‘‘cannot be replaced by a court’s charge, which is
addressed to a group and does not elicit answers.’’ State
v. Rogers, 197 Conn. 314, 318, 497 A.2d 387 (1985).
Our decisional law reflects, however, that the type
of inquiry that is permissible to uncover prejudice on
the part of prospective jurors has its limits. ‘‘The court
has a duty to analyze the examination of venire mem-
bers and to act to prevent abuses in the voir dire pro-
cess.’’ State v. Dolphin, 203 Conn. 506, 512, 525 A.2d
509 (1987). ‘‘[I]f there is any likelihood that some preju-
dice is in the [prospective] juror’s mind [that] will even
subconsciously affect his [or her] decision of the case,
the party who may be adversely affected should be
permitted [to ask] questions designed to uncover that
prejudice. . . . The latitude . . . afforded the parties
in order that they may accomplish the purposes of the
voir dire [however] is tempered by the rule that [q]ues-
tions addressed to prospective jurors involving assump-
tions or hypotheses concerning the evidence which may
be offered at the trial . . . should be discouraged
. . . . [A]ll too frequently such inquiries represent a
calculated effort on the part of counsel to ascertain
before the trial starts what the reaction of the venire[-
person] will be to certain issues of fact or law or, at
least, to implant in his mind a prejudice or prejudgment
on those issues. Such an effort transcends the proper
limits of the voir dire and represents an abuse of the
statutory right of examination. . . .
‘‘Thus, we afford trial courts wide discretion in their
supervision of voir dire proceedings to strike a proper
balance between [the] competing considerations . . .
but at the same time recognize that, as a practical mat-
ter, [v]oir dire that touches on the facts of the case
should be discouraged. . . . [T]he permissible content
of the voir dire questions cannot be reduced to simplis-
tic rules, but must be left fluid in order to accommodate
the particular circumstances under which the trial is
being conducted. Thus, a particular question may be
appropriate under some circumstances but not under
other circumstances. . . . The trial court has broad
discretion to determine the latitude and the nature of
the questioning that is reasonably necessary to search
out potential prejudices of the jurors.’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Patel,
186 Conn. App. 814, 846–47, 201 A.3d 459, cert. denied,
331 Conn. 906, 203 A.3d 569 (2019). ‘‘The court has
wide discretion in conducting the voir dire . . . and the
exercise of that discretion will not constitute reversible
error unless it has clearly been abused or harmful preju-
dice appears to have resulted.’’ (Citations omitted.)
State v. Dahlgren, 200 Conn. 586, 601, 512 A.2d 906
(1986).
Our analysis must focus on ‘‘the scope of the trial
court’s ruling, i.e., what specific question or questions
actually were prohibited.’’ State v. Lugo, 266 Conn. 674,
684, 835 A.2d 451 (2003). As discussed previously in
this opinion, in light of the likelihood that the state
would present evidence that the defendant had shown
affection to one or more of his children by kissing them
on the lips, the court’s prohibition was limited only to
the question related to a parent kissing a child on the
lips. The court, nonetheless recognizing the nature of
the inquiry sought by defense counsel, expressly clari-
fied that its ruling did not preclude defense counsel
from asking whether prospective jurors had opinions
about parents using different methods of physical
affection toward a child.
Because the trial court is vested with broad discretion
in conducting the voir dire, there are few, if any, bright-
line rules that we may employ in reviewing its rulings
related thereto. Indeed, this court has observed that,
‘‘[d]espite its importance, the adequacy of voir dire is
not easily subject to appellate review.’’ (Emphasis omit-
ted; internal quotation marks omitted.) State v. Rios,
supra, 74 Conn. App. 115. We note that, in the present
case, the court’s ruling was extremely narrow, and the
ruling prohibited only an inquiry that was related to
specific evidence in the case. The ruling, therefore, pre-
vented defense counsel from using voir dire for the
improper purposes of ascertaining prospective jurors’
opinions about the evidence that would be presented
at trial or implanting in the jurors’ minds an opinion
about the evidence. We also note that the court provided
defense counsel wide latitude to inquire whether pro-
spective jurors had opinions about the general topic of
physical displays of affection. Although the defendant’s
arguments suggest otherwise, physical displays of
affection may include kissing on the lips. Thus, to the
extent that defense counsel deemed it important to
determine if prospective jurors had prejudices against
parents kissing their children on the lips, the court
afforded defense counsel latitude to accomplish the
purposes of the voir dire in that it permitted defense
counsel to raise the general topic of a parent’s physical
display of affection. Our assessment in this regard is
proven by the fact that, although defense counsel asked
only five prospective jurors about a parent’s physical
display of affection, three of those prospective jurors
(K.G., E.B., and J.S.) stated an opinion about kissing.
Moreover, one of these prospective jurors (J.S.) stated
an opinion about kissing on the lips.
As both this court and our Supreme Court have
observed, the trial court in supervising voir dire must
balance the competing considerations of protecting a
party’s inviolate right to ask questions to uncover preju-
dice and avoiding inquiries that touch on the facts
before the jury. See, e.g., State v. Pollitt, 205 Conn. 61,
75, 530 A.2d 155 (1987); State v. Rios, supra, 74 Conn.
App. 117–18. We are convinced that the court properly
struck a balance between these considerations and per-
mitted an inquiry that was sufficient to uncover juror
bias against a parent’s physical display of affection,
including kissing on the lips.
A court’s exercise of its discretion to restrict voir
dire ‘‘will not constitute reversible error unless it has
clearly been abused or harmful prejudice appears to
have resulted.’’ State v. Dahlgren, supra, 200 Conn. 601;
see also State v. Dolphin, supra, 203 Conn. 512 (same),
and cases cited therein. Beyond concluding that the
court did not abuse its discretion, we likewise conclude
for the reasons that follow that the defendant has failed
to demonstrate that the court’s ruling resulted in harm-
ful prejudice.5
As we stated previously in this opinion, at the time
that the court made the ruling at issue, it had yet to
rule on the photograph that the state wanted to intro-
duce that depicted the defendant kissing H on the lips.
The following day of jury selection, the court ruled
that the photograph was not admissible. It appears that
defense counsel’s desire to uncover possible prejudice
related to a parent kissing a child on the lips was largely
motivated by the possibility that this photograph would
be part of the evidence.6 Following its exclusion, there
was no photographic evidence of the defendant kissing
the victim, or any child, on the lips. Furthermore, as
we previously discussed, the subject of the defendant’s
kissing the victim on the lips was not a prominent part
of the evidence, which was presented to the jury over
the course of three days. Although the jury heard evi-
dence that the defendant had kissed the victim on the
lips, that the victim objected to the kissing, and that
B’s concern that the defendant’s habit of kissing the
victim on the lips led Adams to investigate whether
the victim had been sexually abused, the defendant’s
conduct in kissing the victim on the lips did not form
the factual basis of any of the offenses with which he
stood charged. Moreover, the prosecutor did not rely
on the evidence of kissing during her closing argument.
Finally, we note that the defendant’s prejudice argu-
ment stems from his belief that the jury would be
‘‘unable to judge this case fairly once they heard [the]
evidence [related to his kissing the victim on the lips].’’
The fact that the jury rendered a split verdict in this
case, finding the defendant not guilty of the more seri-
ous sexual assault charges; see footnote 2 of this opin-
ion; lends some support to our conclusion that the limi-
tation on voir dire did not result in a jury that was unable
to carefully and fairly consider each of the charges and
the evidence related thereto. Given the slight role that
the evidence of kissing played in the trial, the fact that
the evidence that was presented to the jury related to
kissing was not inherently prejudicial in nature, we are
not persuaded that harmful prejudice resulted to the
defendant as a result of the court’s ruling.
II
Next, the defendant claims that the court improperly
admitted into evidence a videotaped forensic interview
of the victim. We disagree.
The following facts are relevant to this claim. Prior
to trial, the state filed a notice of its intent to offer
into evidence a video recording of the victim’s forensic
interview that occurred on March 9, 2016, and was
conducted by Monica Vidro Madigan, a clinical social
worker employed by the Yale-New Haven Hospital’s
Child Sexual Abuse Clinic. Later, the defendant filed a
motion in limine to preclude the admission of the video.
The defendant assumed for purposes of his motion that
the victim would testify at trial and would be able to
recall and narrate the details of her sexual abuse allega-
tions against the defendant. The defendant expressly
stated that he did not object to the admissibility of the
video on hearsay grounds. Instead, the defendant raised
what he characterized as an objection related to ‘‘rele-
vance and bolstering . . . .’’ The defendant argued that
the video had limited probative value and was unduly
prejudicial to him. In arguing that it was unduly prejudi-
cial, defense counsel argued that it was unnecessary
and cumulative evidence of the facts to be elicited dur-
ing the victim’s trial testimony, and it would improperly
bolster the victim’s testimony.
Following the victim’s trial testimony, on October 24,
2018, the court heard arguments on the motion. Defense
counsel reiterated that the video would not add any-
thing to the victim’s trial testimony and argued that the
admission of the video would constitute an improper
bolstering of that testimony. Defense counsel argued
that ‘‘[the victim] had clear recollection. She did not
have any confusion about the details. This isn’t a case
like some where the child [victim] kind of broke down
and had trouble and, therefore, the state tried to offer
this evidence [of prior disclosure] . . . . [The victim]
had clear detail, clear memory and so I think to pile
on another version of her statement, it’s very prejudicial
and I think it’s cumulative . . . . It’s really important
to be clear about bolstering. And so I think, here, when
you’re allowing . . . the jury to hear twice, once live
in person, once on a tape-recorded forensic interview
from the same complainant, that really . . . is highly
prejudicial. . . .
‘‘[T]here’s nothing contained in that forensic inter-
view which was not already testified to by [the victim]
in front of this jury. It would simply be a rerun of
her testimony, of course without any sort of cross-
examination there, and I think . . . its prejudicial
impact outweighs its probative value. I don’t think it
has any probative value. We’ve heard her testimony.’’
Defense counsel acknowledged, however, that she was
unaware of any authority to support the proposition
that a forensic interview is not admissible evidence.
Responding to the argument that the evidence was
cumulative, the prosecutor argued that the details pro-
vided by the victim during the forensic interview dif-
fered in some ways from the details provided by the
victim during her trial testimony. For example, the pros-
ecutor stated that the victim provided different descrip-
tions of the alleged anal penetration by the defendant.7
The prosecutor also responded that the state was seek-
ing the admission of the video under the medical diagno-
sis and treatment exception to the rule against hearsay.
The court stated that ‘‘the record obviously reflects
that the [victim] did appear here at this trial and was
subject to cross-examination, and the forensic inter-
view will be admitted, and that’s going to be admitted
under the medical diagnosis and treatment exceptions
to the hearsay rule, [Connecticut Code of Evidence § 8-
3 (5)], and our existing case law under State v. Griswold,
[160 Conn. App. 528, 127 A.3d 189, cert. denied, 320
Conn. 907, 128 A.3d 952 (2015)]. You know, the purpose
of the interview is to minimize trauma so a child doesn’t
have to repeat allegations to numerous officials such
as school officials, [the department], police, et cetera,
and it also . . . assesses medical and mental health
needs of the particular child, and it also advances and
coordinates the prompt investigation of suspected
cases of child abuse. So, for those reasons, and no
existing case law to support the defendant’s position,
I am going to deny the defendant’s motion.’’ The video
of the forensic interview was admitted into evidence
during the testimony of Vidro Madigan.8
On appeal, the defendant argues as he did at trial
that ‘‘[t]he only purpose of the video was to bolster
[the victim’s] testimony at trial, and it was unnecessary
because she testified. Moreover, the prejudicial effect
of this evidence greatly outweighed its probative value.
By allowing the state to double-team its case in this
manner when [the victim’s] credibility was crucial to
the outcome, the court committed harmful error.’’ The
defendant argues that the court summarily rejected the
basis of his objection by stating that the video was
admissible under the medical treatment and diagnosis
exception to the rule against hearsay but failed to
address the issue of whether the probative value of the
video, if any, was outweighed by its prejudicial effect.
The defendant argues that the court failed to analyze
the objection raised in that it ‘‘automatically’’ deter-
mined that the video was admissible after concluding
that it fell within the hearsay exception and, thus, failed
to exercise any discretion with respect to the issue
of whether the evidence was unduly prejudicial. The
defendant argues that, even if the court conducted the
proper balancing test, it incorrectly exercised its discre-
tion to admit the video in evidence.
‘‘We review the trial court’s decision to admit [or
exclude] evidence, if premised on a correct view of the
law . . . for an abuse of discretion. . . . We will make
every reasonable presumption in favor of upholding the
trial court’s ruling, and only upset it for a manifest
abuse of discretion. . . . The trial court has wide dis-
cretion to determine the relevancy [and admissibility]
of evidence . . . . In order to establish reversible error
on an evidentiary impropriety . . . the defendant must
prove both an abuse of discretion and a harm that
resulted from such abuse.’’ (Citations omitted; internal
quotation marks omitted.) State v. Cecil J., 291 Conn.
813, 818–19, 970 A.2d 710 (2009).9
‘‘ ‘Relevant evidence’ means evidence having any ten-
dency to make the existence of any fact that is material
to the determination of the proceeding more probable
or less probable than it would be without the evidence.’’
Conn. Code Evid. § 4-1. Irrelevant evidence is inadmissi-
ble and, unless there is a basis in law for its exclusion,
‘‘[a]ll relevant evidence is admissible . . . .’’ Conn.
Code Evid. § 4-2. ‘‘Relevant evidence may be excluded
if its probative value is outweighed by the danger of
unfair prejudice . . . or by considerations of . . .
needless presentation of cumulative evidence.’’ Conn.
Code Evid. § 4-3. ‘‘Of course, [a]ll adverse evidence is
damaging to one’s case, but it is inadmissible only if it
creates undue prejudice so that it threatens an injustice
were it to be admitted. . . . The test for determining
whether evidence is unduly prejudicial is not whether
it is damaging to the defendant but whether it will
improperly arouse the emotions of the [jurors].’’ (Inter-
nal quotation marks omitted.) State v. Wilson, 308 Conn.
412, 429–30, 64 A.3d 91 (2013).
‘‘By cumulative evidence is meant additional evi-
dence of the same general character, to the same fact
or point which was the subject of proof before.’’ Waller
v. Graves, 20 Conn. 305, 310 (1850). ‘‘In excluding evi-
dence on the ground that it would be only cumulative,
care must be taken not to exclude merely because of
an overlap with evidence previously received. To the
extent that evidence presents new matter, it is obviously
not cumulative with evidence previously received.’’
(Emphasis in original; internal quotation marks omit-
ted.) State v. Parris, 219 Conn. 283, 293, 592 A.2d 943
(1991).
Preliminarily, we reject the defendant’s contention
that the court, having concluded that the video was
admissible under the medical diagnosis and treatment
exception to the rule against hearsay; see Conn. Code
Evid. § 8-3 (5); ‘‘summarily reject[ed]’’ his argument that
the video should be excluded because it was unduly
prejudicial and cumulative. The record reflects that the
court, in its oral ruling, did not specifically address the
defendant’s arguments that the video, although admissi-
ble under a well established exception to the rule
against hearsay, should be excluded because it was
unduly prejudicial and cumulative. Instead, the court
explicitly stated that the evidence fell within the hearsay
objection. The court, however, also used broad lan-
guage that suggests that it had considered and rejected
the specific grounds of the defendant’s objection by
stating that it was unable to identify ‘‘existing case law
to support the defendant’s position . . . .’’
Thus, the court’s oral ruling does not unambiguously
reflect whether it exercised its discretion and consid-
ered the grounds raised in the defendant’s objection.
Nonetheless, our review of the relevant portion of the
transcript of the trial proceedings does not suggest that
the court failed to consider both of these grounds and
did not exercise its discretion. ‘‘In the discretionary
realm, it is improper for the trial court to fail to exercise
its discretion.’’ State v. Lee, 229 Conn. 60, 73–74, 640
A.2d 553 (1994). Although the court did not explicitly
refer to these grounds, there is nothing in the court’s
statements to indicate that it erroneously believed that
it lacked the discretion to exclude the evidence at issue.
Cf. id. (record reflects that trial court’s evidentiary rul-
ing was result of mistaken belief that evidence was
categorically inadmissible); State v. Martin, 201 Conn.
74, 88–89, 513 A.2d 116 (1986) (record reflects that trial
court’s evidentiary ruling was result of expressed belief
that it lacked discretion to preclude evidence). In light
of the foregoing and in conformity with our precedent,
we will not presume error in the court’s analysis but
instead presume that the court properly exercised its
discretion and considered the merits of the objection
raised. ‘‘In Connecticut, our appellate courts do not
presume error on the part of the trial court. . . .
Rather, the burden rests with the appellant to demon-
strate reversible error.’’ (Internal quotation marks omit-
ted.) Pettiford v. State, 179 Conn. App. 246, 260–61,
178 A.3d 1126, cert. denied, 328 Conn. 919, 180 A.3d
964 (2018).
We now turn to the merits of the evidentiary claim.
We readily conclude that the forensic interview of the
victim by Vidro Madigan was relevant. Therein, the vic-
tim described in detail the incident giving rise to the
offenses with which the defendant was charged. The
defendant does not argue that the video lacked proba-
tive value because it did not tend to make it more or
less probable that the defendant committed one or more
of the charged offenses. Instead, the defendant argues
that ‘‘[t]he video had little, if any, probative value
because [the victim], who was fourteen years old at the
time of trial, testified without hesitation and gave a
complete recounting of her allegations. She did not
seem confused or uncertain about any of the details
and did not claim she could not remember them.’’ These
arguments lead us to observe that the defendant
improperly conflates what is relevant evidence and
what is cumulative evidence.
The victim’s forensic interview was highly probative
with respect to the defendant’s conduct during the inci-
dent in which he made contact with her vagina and
anus.10 The defendant was charged with two counts of
sexual assault in the first degree in violation of General
Statutes § 53a-70 (a) (1). One count was premised on
the allegation that the defendant forcibly engaged in
penile-vaginal intercourse with the victim, and one
count was premised on the allegation that the defendant
forcibly engaged in penile-anal intercourse with the vic-
tim.
Section 53a-70 (a) provides in relevant part: ‘‘A person
is guilty of sexual assault in the first degree when such
person (1) compels another person to engage in sexual
intercourse by the use of force against such other per-
son or a third person, or by the threat of use of force
against such other person or against a third person
which reasonably causes such person to fear physical
injury to such person or a third person . . . .’’ ‘‘‘Sexual
intercourse’ means vaginal intercourse, anal inter-
course, fellatio or cunnilingus between persons regard-
less of sex. Penetration, however slight, is sufficient
to complete vaginal intercourse, anal intercourse or
fellatio and does not require emission of semen. Pene-
tration may be committed by an object manipulated by
the actor into the genital or anal opening of the victim’s
body.’’ General Statutes § 53a-65 (2). The victim’s state-
ment in the forensic interview that she felt something
‘‘inside’’ of her vagina and anus made it more likely that
penetration of the vagina and anus had occurred.
Moreover, the state charged the defendant with risk
of injury to a child in violation of § 53-21 (a), which
provides in relevant part: ‘‘Any person who . . . (2)
has contact with the intimate parts, as defined in section
53a-65, of a child under the age of sixteen years or
subjects a child under sixteen years of age to contact
with the intimate parts of such person, in a sexual and
indecent manner likely to impair the health or morals
of such child . . . shall be guilty of . . . (B) a class B
felony for a violation of subdivision (2) of this subsec-
tion, except that, if the violation is of subdivision (2)
of this subsection and the victim of the offense is under
thirteen years of age, such person shall be sentenced
to a term of imprisonment of which five years of the
sentence imposed may not be suspended or reduced
by the court.’’ This charged offense required the state
to prove not only that intimate contact with the victim’s
intimate parts occurred but that it occurred in a sexual
and indecent manner likely to impair the health or mor-
als of the victim. The victim’s forensic interview pro-
vided additional insight into the manner in which the
intimate contact with her private parts occurred, specif-
ically, her belief that she felt ‘‘[a] man’s private’’ make
contact with her private parts. This additional detail
made it more likely that the defendant used his penis
during the incident. This, in turn, made it more likely
that the intimate contact not only occurred in a sexual
and indecent manner but that it was likely to impair
the victim’s health or morals. Accordingly, we are not
persuaded that the evidence was irrelevant or that it
should have been excluded because it was cumulative.
Indeed, we conclude that the evidence was highly pro-
bative.
Having discussed the considerable probative value
of the video of the forensic interview, we now consider
the defendant’s argument that its probative value was
outweighed by the risk of undue prejudice to the
defense. The defendant posits that the danger of preju-
dice arose from the fact that the video improperly bol-
stered the victim’s testimony because it essentially con-
stituted constancy of accusation evidence, the video
placed an undue emphasis on her testimony, and the
video unduly aroused the jurors’ sympathy for the vic-
tim. We disagree with these contentions.
The defendant’s attempt, for the first time on appeal,
to recast the video as constancy of accusation evidence
is unavailing. The state did not offer the video as con-
stancy of accusation evidence. The state argued that
the video was admissible under the medical diagnosis
and treatment exception to the rule against hearsay;
see Conn. Code Evid. § 8-3 (5); and because it provided
additional details to the manner in which the contact
at issue occurred. The defendant agreed at trial, and
does not dispute on appeal, that the video fell within
the hearsay exception. The evidence consisted of the
victim’s own statements to a medical provider, not the
statements of multiple third parties to whom she dis-
closed abuse. The court admitted the video without
limitation. Thus, it was admitted for substantive pur-
poses instead of merely being corroborative of the cred-
ibility of the victim, which is the sole proper use of
constancy of accusation testimony. See, e.g., State v.
Daniel W. E., 322 Conn. 593, 612–13, 142 A.3d 265 (2016)
(discussing limited purpose for which constancy of
accusation testimony should be considered).
Moreover, the defendant did not suggest, as he does
on appeal, that the videotaped forensic interview, which
occurred in March, 2016, was generated merely to pre-
pare the victim for the trial that occurred more than
two years later. The defendant’s suggestion that the
interview was essentially manufactured by the prosecu-
tor for use at trial lacks any factual basis. The forensic
interview was conducted by a clinical social worker,
and the video did not contain the opinions of expert
witnesses about the victim’s credibility or statements
of third parties to whom the victim disclosed abuse.11
We are not persuaded that the video unfairly bolstered
the victim’s credibility.
Next, the defendant argues that the video was unduly
prejudicial in that it placed an improper emphasis on
the victim’s testimony by permitting the victim to testify
twice, once as a witness and once by means of the
video. The defendant relies on State v. Gould, 241 Conn.
1, 9–15, 695 A.2d 1022 (1997), in which the state was
permitted to present at trial the videotaped testimony
of a state’s witness, who, for health reasons, could not
be present in court to testify. Id., 10. During the jury’s
deliberations, it requested to view the videotaped testi-
mony in the jury room. Id., 11. The court granted the
request. Id. On appeal, the defendants in Gould claimed
that it was improper for the court to have granted the
request to replay the videotaped testimony in the jury
room, outside of the court’s supervision, and that they
were prejudiced by the court’s ruling because it ‘‘unduly
emphasized’’ the witness’ testimony, essentially permit-
ting the witness to testify twice. Id., 12.
Our Supreme Court rejected the argument that the
rules of practice prohibited the trial court from permit-
ting the replay of the videotaped testimony in the jury
room. See id. The court determined that the ruling did
not reflect an abuse of the trial court’s discretion
because ‘‘the most reliable means for the jury to review
[the witness’] testimony was to view the videotape.’’ Id.,
13. Our Supreme Court, however, exercised its supervi-
sory authority over the administration of justice to
require that, ‘‘[w]here a court decides, pursuant to that
court’s sound discretion, that the jury should be permit-
ted to replay videotaped deposition testimony, it must
be done in open court under the supervision of the
trial judge and in the presence of the parties and their
counsel.’’ Id., 15. Our Supreme Court, in concluding that
the ruling was not improper, nonetheless noted that
the defendants had raised valid concerns that might
have existed in other cases in which a danger existed
that a jury might have given undue weight to the video-
taped testimony of a witness over that witness’ in-court
testimony. See id., 14.12
The court’s concern in Gould centered on the jury’s
unsupervised use of videotaped testimony during its
deliberations. The court, in the exercise of its supervi-
sory authority, did not prohibit the admission of video-
taped forensic interviews. It required that, when a trial
court permits a jury to replay videotaped deposition
testimony, it must be done in open court under the
supervision of the trial judge and in the presence of the
parties and their counsel. Id., 15. The defendant’s claim
in the present case concerns the admissibility of the
videotaped forensic interview; the defendant has not
raised a claim of error related to the jury’s unsupervised
use of the videotaped forensic interview in the jury
room. Thus, we are not persuaded that Gould supports
his claim of undue prejudice.
Finally, the defendant argues that the video was
unduly prejudicial because it generated sympathy for
the victim. Specifically, the defendant claims that state-
ments made by Vidro Madigan during her questioning
of the victim engendered feelings of sympathy for the
victim because Vidro Madigan expressed feelings of
empathy to the victim. Vidro Madigan testified that her
duties as a clinical social worker did not include making
a determination as to the credibility of the victim’s
allegations. See footnote 11 of this opinion. Thus, it is
likely that the jury would have interpreted any state-
ments that suggested empathy to have reflected Vidro
Madigan’s effort to build a rapport with the victim dur-
ing the interview, not a genuine belief by Vidro Madigan
that the victim was being truthful or a belief that she
had actually suffered any abuse at the hands of the
defendant.
The defendant also relies on the fact that the video
depicted the victim, aged twelve, discussing the details
of her allegations of sexual abuse with ‘‘a stranger,’’
and that the victim made some comments in the video,
but not in her live testimony, that would have generated
sympathy for her. These comments by the victim
included a description of a picture that she drew of a
flower that represented her and her mother, multiple
references to the defendant having ‘‘forced [her] to have
sex with him,’’ and an expressed preference in favor
of living with her grandmother because her grand-
mother did not beat her.
At the time of trial, the victim was fourteen years of
age and in the eighth grade. The victim was examined
and cross-examined at length in open court about the
allegations of sexual abuse. We are not persuaded that
the mere fact that she discussed her allegations at age
twelve with Vidro Madigan was likely to cause any
additional feelings of sympathy in the eyes of the jurors
than would the fact that she endured testifying at trial.
Moreover, we recognize that the victim’s statements to
Vidro Madigan at age twelve were not identical to her
trial testimony. To the extent that she used different
language at the trial, however, to describe the allega-
tions and her relationship with the defendant, the state-
ments were not so different in nature that they were
likely to engender strong feelings of sympathy over
those that may have been engendered by the victim’s
trial testimony.
‘‘To be unfairly prejudicial, evidence must be likely
to cause a disproportionate emotional response in the
[jurors], thereby threatening to overwhelm [their] neu-
trality and rationality to the detriment of the opposing
party. . . . A mere adverse effect on the party opposing
admission of the evidence is insufficient. . . . Evi-
dence is prejudicial when it tends to have some adverse
effect [on] a defendant beyond tending to prove the
fact or issue that justified its admission into evidence.’’
(Emphasis added; internal quotation marks omitted.)
State v. Miguel C., 305 Conn. 562, 575–76, 46 A.3d 126
(2012). In substance, the victim, in her trial testimony
and during her forensic interview, described the fact
that she made a drawing depicting her and her mother,
the fact that the defendant forced her to submit to the
sexual contact that occurred in her bedroom, and the
fact that the defendant beat her. Thus, the video did
not introduce facts that were of a materially different
nature than those introduced during the trial, and, thus,
we are not persuaded that the differences in facts, to the
extent they existed, unduly prejudiced the defendant.
For the foregoing reasons, we conclude that the
court’s admission of the videotaped forensic interview
of the victim did not reflect an abuse of its discretion.
III
Next, the defendant claims that the trial court vio-
lated his rights to due process, to a fair and impartial
trial, and to be convicted by means of a unanimous
verdict because the deadlocked jury instructions the
court provided to the jury were coercive and mis-
leading. We disagree.
The following additional facts are relevant to this
claim. The jury deliberated over the course of four days.
On the third day of jury deliberations, the jury sent
the court a note, stating: ‘‘At this time, the jury is not
unanimous on any of the three charges. It does not
appear this will change with additional deliberation
time.’’ Outside of the jury’s presence, the court dis-
cussed the note with counsel. The court noted that it
was prepared to deliver to the jury deadlocked jury
instructions, also known as ‘‘Chip Smith’’ instructions.13
The court stated that it would use the model jury
instructions on the Judicial Branch website that pertain
to deadlocked juries. See Connecticut Criminal Jury
Instructions 2.10-4, available at https://www.jud.ct.gov/
JI/Criminal/Criminal.pdf (last visited December 21,
2021). Defense counsel submitted a written request that
the court instruct the jury with some of the language
from the instructions found on the Judicial Branch web-
site but with added language at the beginning of the
instructions to clarify that the jury need not reach a
verdict. The language in the first paragraph of the defen-
dant’s requested instructions forms the basis of the
present claim.14 Defense counsel addressed the court,
noting that, if a unanimous verdict was not possible,
the jury should be informed that its failure to reach a
verdict was ‘‘a perfectly proper outcome.’’ The court
noted that it had considered the defendant’s request
but that it would deliver the model instructions from
the Judicial Branch website.15 After the court delivered
its instructions, defense counsel reiterated that the
defendant not only objected to the court’s failure to
instruct the jury in accordance with the first paragraph
of his requested instructions but that the defendant also
objected to the last paragraph of the court’s instruc-
tions. Defense counsel argued that the last paragraph
of the court’s instructions suggested that the jury should
agree on a verdict, and, thus, it was unduly coercive in
nature. The court noted the objection. The following
day, the jury returned a verdict. At the defendant’s
request, each member of the jury was individually
polled, and each juror indicated that he or she agreed
with the verdict.
On appeal, the defendant argues that, ‘‘[u]nlike the
standard instruction [delivered by the court], the pro-
posed instruction made it clear the jurors had the right
not to agree and that the court was not suggesting a
verdict had to be reached. Under the circumstances of
this case, where, after three days of deliberating the
jurors indicated further deliberations would not be fruit-
ful, the verdict was the result of an impermissibly coer-
cive and misleading instruction.’’ The defendant acknowl-
edges that the instruction that the court delivered to
the jury has survived prior judicial scrutiny yet asserts
that ‘‘there was no reason for the court to reject [his]
proposed instruction, which was a more balanced
instruction that accurately stated the law.’’ The defen-
dant argues that, because the possibility of a hung jury
is a consequence of the unanimity requirement, a court
sends the wrong message when it suggests that the
jury’s inability to reach a verdict is not an acceptable
outcome of its deliberations. The defendant argues that
‘‘the court’s instructions misled the jurors by giving
them the unwarranted impression that a verdict was
required. . . . [T]he court’s instructions simply told
them how they should continue to deliberate in order
to arrive at a verdict, and not that it was permissible for
them not to deliver a verdict.’’ (Emphasis in original.)
The defendant adequately preserved his claim that
the court’s instructions were impermissibly coercive.
Because this presents an issue of law, we review the
instructions under a plenary standard of review. See,
e.g., State v. Carrasquillo, 191 Conn. App. 665, 680, 216
A.3d 782, cert. denied, 333 Conn. 930, 218 A.3d 69 (2019).
‘‘The possibility of disagreement by the jury is implicit
in the requirement of an unanimous verdict and is part
of the constitutional safeguard of trial by jury.’’ (Internal
quotation marks omitted.) State v. Stankowski, 184
Conn. 121, 147, 439 A.2d 918, cert. denied, 454 U.S. 1052,
102 S. Ct. 596, 70 L. Ed. 2d 588 (1981). We are mindful
that ‘‘[a] jury that is coerced in its deliberations deprives
the defendant of his right to a fair trial under the sixth
and fourteenth amendments to the federal constitution,
and article first, § 8, of the state constitution. Whether
a jury [was] coerced by statements of the trial judge is
to be determined by an examination of the record. . . .
The question is whether in the context and under the
circumstances in which the statements were made, the
jury [was], actually, or even probably, misled or coerced
. . . . We recognize that a defendant is not entitled to
an instruction that a jury may hang . . . [but] he is
entitled to a jury unfettered by an order to decide.’’
(Citations omitted; emphasis added; internal quotation
marks omitted.) State v. Carrasquillo, supra, 191 Conn.
App. 680. Stated otherwise, in evaluating whether coer-
cion occurred, we do not merely examine the content
of the court’s instructions but ‘‘the context and . . .
circumstances in which they were given . . . .’’ (Cita-
tion omitted; internal quotation marks omitted.) State
v. Daley, 161 Conn. App. 861, 878, 129 A.3d 190 (2015),
cert. denied, 320 Conn. 919, 132 A.3d 1093 (2016).
‘‘It is well settled that a Chip Smith charge is an
acceptable method of assisting the jury to achieve una-
nimity. . . . The purpose of the instruction is to pre-
vent a hung jury by urging the jurors to attempt to
reach agreement. It is a settled part of Connecticut
jurisprudence . . . . Better than any other statement
. . . it makes clear the necessity, on the one hand, of
unanimity among the jurors in any verdict, and on the
other hand the duty of careful consideration by each
juror of the views and opinions of each of his fellow
jurors . . . .’’ (Citations omitted; internal quotation
marks omitted.) State v. Feliciano, 256 Conn. 429, 439,
778 A.2d 812 (2001). ‘‘The language of the charge does
not direct a verdict, but encourages it.’’ Id., 440.
The trial court’s instructions mirrored the deadlocked
jury instructions crafted by our Supreme Court in State
v. O’Neil, 261 Conn. 49, 74–75, 801 A.2d 730 (2002).
Our Supreme Court affirmed the instructions ‘‘as an
acceptable method of encouraging a deadlocked jury
to reach a verdict.’’ Id., 75. As the defendant correctly
observes, the use of the deadlocked jury instruction set
forth in O’Neil has been upheld in numerous appellate
decisions. In the present case, the defendant asked the
court to instruct the jury that it ‘‘in no way wish[ed] to
suggest or imply that a verdict should or could be
reached in this case . . . .’’ (Emphasis added.) See
footnote 14 of this opinion. This requested instruction
condoned a hung jury. Both this court and our Supreme
Court have expressly stated that a defendant is not
entitled to an instruction of this nature. See, e.g., State
v. Breton, 235 Conn. 206, 239, 663 A.2d 1026 (1995);
State v. Peary, 176 Conn. 170, 184, 405 A.2d 626 (1978),
cert. denied, 441 U.S. 966, 99 S. Ct. 2417, 60 L. Ed. 2d
1072 (1979); State v. Ralls, 167 Conn. 408, 421, 356
A.2d 147 (1974), overruled on other grounds by State
v. Rutan, 194 Conn. 438, 479 A.2d 1209 (1984); State v.
Carrasquillo, supra, 191 Conn. App. 680; State v. Spyke,
68 Conn. App. 97, 116, 792 A.2d 93, cert. denied, 261
Conn. 909, 804 A.2d 214 (2002). We reject the defen-
dant’s invitation to conclude that the model instructions
used in the present case were not an acceptable method
of encouraging a deadlocked jury to reach a verdict.
As an intermediate court of appeal, we are unable to
overrule, reevaluate, or reexamine the propriety of the
instruction that has been bestowed by our Supreme
Court. See State v. Carrasquillo, supra, 683.
Moreover, setting aside the content of the court’s
instructions, contrary to the defendant’s arguments,
there is nothing concerning the context and circum-
stances in which the court delivered its deadlocked jury
instructions that leads us to conclude that the use of
the instructions in the present case was coercive. The
defendant focuses on the fact that, when the jury sent
the note to the court, it had already deliberated over
the course of three days. During these three days, the
jury had requested playback of the victim’s forensic
interview, the victim’s testimony, and B’s testimony. As
noted previously in this opinion, in its note, the jury
expressed its belief that additional deliberation time
would not lead to a unanimous verdict. The fact that
the jury had engaged in deliberations and requested
playback of some of the testimony and evidence prior
to sending the note merely reflected, at most, that the
jury was fulfilling its duty of carefully considering the
evidence. The jury’s note, the first and only time that
it communicated with the court with respect to an
impasse, and the jury’s belief that additional delibera-
tion time would not be fruitful, did not make the court’s
instructions coercive. The note did not refer to hostility
among jurors, any indication that jurors had not fol-
lowed their juror oaths, or any indication that one or
more jurors would not continue to follow their juror
oaths following additional instruction. Nothing in the
context or circumstances made the instructions coer-
cive. Stated otherwise, the defendant has not drawn a
meaningful distinction between the circumstances of
the present case and any other case in which a jury
had expressed its belief that it was unable to reach
a unanimous verdict, thereby prompting the court to
deliver deadlocked jury instructions.16
Finally, we address the defendant’s argument that,
‘‘[i]ndeed, the split verdict, which cannot be reconciled
with the evidence, signifies there was coercion and that
the jurors rendered a compromise verdict because they
felt they had no other choice but to agree.’’ Setting aside
the issue of whether the split verdict may be reconciled
with the evidence, the defendant’s attempt to use the
split verdict as evidence of coercion is unavailing. As
this court has observed, ‘‘in the context of a coercive-
ness claim, a verdict of not guilty with respect to one
or more counts does not necessarily shed light on the
source of the jury’s disagreement or whether the verdict
of one or more jurors was the result of coercion rather
than conscience.’’ State v. Carrasquillo, supra, 191
Conn. App. 689–90 n.12.
For the foregoing reasons, we are not persuaded that
the court’s deadlocked jury instructions were coercive.
Thus, the defendant has failed to establish the basis for
his claim that the court violated his rights to due pro-
cess, to a fair and impartial trial, and to be convicted
by means of a unanimous verdict.
IV
Finally, the defendant claims that this court, in the
exercise of its supervisory authority over the adminis-
tration of justice, should require trial courts, when deliv-
ering deadlocked jury instructions, to instruct the jury
that it need not reach a verdict and that jurors have
the right to disagree with respect to the proper verdict.
We decline to exercise our supervisory authority.
Consistent with the defendant’s third claim, he argues
that the specific language he sought in his requested
instructions is ‘‘warranted to protect the defendant’s
due process rights and right of trial by jury, and to
ensure that the jury is not coerced into reaching a ver-
dict.’’ According to the defendant, ‘‘[b]ecause the pur-
pose of giving a Chip Smith instruction is to urge jurors
to return a verdict . . . there ought to be some lan-
guage, similar to what [he] proposed, to cure the une-
venness of the instruction.’’ (Citation omitted.) The
defendant argues that the well established instructions
used by the court in the present case did not ‘‘avoid
the problem of jurors feeling that they must abandon
their beliefs because a verdict is required.’’
The defendant argues that the court’s instructions
gave precedence to the state’s right to obtain a verdict
over his right not to be convicted of a crime in the
absence of proof beyond a reasonable doubt. The defen-
dant argues that the need for change in the deadlocked
jury instructions is demonstrated by the fact that the
jury, having represented that it was deadlocked,
returned a verdict in the present case after the court
delivered the instructions. He also argues that the jury’s
verdict represented a ‘‘paradoxical split verdict [that]
can only be the result of the coercive instruction given
by the court.’’17
‘‘It is well settled that [a]ppellate courts possess an
inherent supervisory authority over the administration
of justice. . . . Supervisory powers are exercised to
direct trial courts to adopt judicial procedures that will
address matters that are of utmost seriousness, not only
for the integrity of a particular trial but also for the
perceived fairness of the judicial system as a whole.
. . . Under our supervisory authority, we have adopted
rules intended to guide the lower courts in the adminis-
tration of justice in all aspects of the criminal process.
. . . The exercise of our supervisory powers is an
extraordinary remedy to be invoked only when circum-
stances are such that the issue at hand, while not rising
to the level of a constitutional violation, is nonetheless
of utmost seriousness, not only for the integrity of a
particular trial but also for the perceived fairness of
the judicial system as a whole. . . . Indeed, there is
no principle that would bar us from exercising our
supervisory authority to craft a remedy that might
extend beyond the constitutional minimum because
articulating a rule of policy and reversing a conviction
under our supervisory powers is perfectly in line with
the general principle that this court ordinarily invoke[s]
[its] supervisory powers to enunciate a rule that is not
constitutionally required but that [it] think[s] is prefera-
ble as a matter of policy.’’ (Citations omitted; internal
quotation marks omitted.) State v. Elson, 311 Conn.
726, 764–65, 91 A.3d 862 (2014).
We decline to exercise our supervisory authority in
the present case. In State v. O’Neil, supra, 261 Conn.
74–75, our Supreme Court, in the exercise of its supervi-
sory authority, crafted the deadlocked jury instructions
that have become Connecticut’s model instructions and
were delivered by the court in the present case. Our
Supreme Court exercised its supervisory authority
because ‘‘jurors should be reminded not to acquiesce
in the conclusion of their fellow jurors merely for the
sake of arriving at a unanimous verdict.’’ Id., 74. Our
Supreme Court explained that it did ‘‘not find the lan-
guage directed at minority view jurors unduly coercive,
especially in light of the balancing language reminding
jurors not to abandon their conscientiously held beliefs.
On the contrary, we believe that the version of the
charge that we adopt today for our trial courts most
appropriately balances the systemic interest in a unani-
mous verdict and the defendant’s right to have each
and every juror vote his or her conscience irrespective
of whether such vote results in a hung jury.’’ Id., 75–76.
Because our Supreme Court has explicitly addressed
the issue of what instructions are proper, it would be
inappropriate for this court to overrule, reevaluate, or
reexamine the propriety of the instructions. See State
v. Carrasquillo, supra, 191 Conn. App. 683.
The judgment is affirmed.
In this opinion the other judges concurred.
* 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 use the defendant’s full name or to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
1
The court imposed a sentence of twenty years of incarceration, five of
which are mandatory, execution suspended after sixteen years, followed
by fifteen years of probation. The jury found the defendant not guilty of
two counts of sexual assault in the first degree in violation of General
Statutes § 53a-70 (a).
2
In reciting the facts that the jury reasonably could have found in reaching
its verdict, we are mindful that, as we noted in footnote 1 of this opinion,
the jury found the defendant not guilty of two counts of sexual assault in
the first degree. One count of sexual assault required a finding that the
defendant had penetrated the victim’s anus, and the other count of sexual
assault required a finding that the defendant had penetrated the victim’s
vagina. See General Statutes § 53a-70 (a) (1).
The jury found the defendant guilty of risk of injury to a child in violation
of § 53-21 (a) (2), which did not require a finding that penetration had
occurred but required a finding that the defendant had contact with the
intimate parts of the victim in a sexual and indecent manner that was likely
to impair her health or morals.
3
In this opinion, we will use the initials, rather than full names, of venire-
persons to protect their privacy interests.
4
The state also presented evidence of statements the victim made in her
forensic interview, during which she stated that the defendant would kiss
her on her mouth when she was going to travel somewhere ‘‘really far’’
away. The victim stated that, when this type of kissing occurred, both her
mouth and the defendant’s mouth would remain closed. She stated that her
grandmother, B, thought the kissing was ‘‘kinda weird’’ and that ‘‘no one
should be kissing you on your mouth.’’
5
Although the state correctly refers in its appellate brief to the fact that
our decisional law directs us to consider whether a restriction of voir dire
reflects an abuse of discretion or harmful prejudice to a defendant, it also
argues that the defendant is unable to demonstrate that he was ‘‘harmed’’
by the court’s ruling. The defendant responds that ‘‘the state is wrong that
any error was harmless’’ and that ‘‘[a] trial before jurors who harbor preju-
dices that work against the defendant can never be harmless.’’ In accordance
with prior decisions, our evaluation of whether reversal of the judgment is
warranted is focused on whether the court’s ruling constituted an abuse of
discretion or whether it resulted in harmful prejudice to the defendant.
6
As we noted previously in this opinion, following the court’s ruling to
exclude the photograph of the defendant kissing H on the lips, jury selection
continued over the course of three days. During these three days, however,
defense counsel did not ask any prospective juror about physical forms
of affection.
7
Despite the many factual similarities, or overlap, between the victim’s
trial testimony and the victim’s forensic interview, our review of these two
matters reveals that factual differences do exist. Appellate review of the
victim’s trial testimony is greatly hampered by the fact that the victim
testified while, for demonstrative purposes, pointing to one or more visual
aids depicting the human body. In many instances, however, neither the
court nor the prosecutor clarified for the record what part of the human
body she was pointing to while testifying. The consequence of that failure
is that, at times, the record is ambiguous with respect to the most critical
facts of the case, namely, the intimate part or parts of the victim’s body
with which the defendant had made contact. In the victim’s trial testimony,
she appears to have described the defendant touching her anus and feeling
‘‘a sharp pain inside of [her]’’ but that she ‘‘wasn’t sure what it was . . . .’’
While apparently referring to contact with her vagina, she testified that she
believed the contact was painful ‘‘ ‘cause [the defendant] tried to go in’’ and
‘‘[i]t didn’t work.’’ The victim did not state what the defendant had used to
make contact with her, except that he stated that it was ‘‘[h]is thumb.’’
Unlike the victim’s trial testimony, in the victim’s forensic interview she
added additional details about the defendant’s touching of her vagina and
anus. Specifically, she stated that, when the defendant was touching ‘‘both
parts,’’ meaning her vagina and her anus, she ‘‘felt something else going
inside of me . . . .’’ The victim also stated that, although the defendant
stated that he was using his thumb during the incident, in light of the fact
that she felt the defendant’s hands on her waist at the time, she believed
that it was ‘‘[a] man’s private.’’
8
Later, in the absence of objection by the defendant, the state offered,
and the court admitted into evidence, a transcript of the video. The defen-
dant’s claim on appeal is limited to the admission of the video but not the
transcript. Although we reject the claim that the video was inadmissible
and, thus, need not reach the issue of whether the admission of the video
amounted to harmful evidentiary error, we observe that the admission of
the transcript of the video would pose a significant hurdle to the defendant
in attempting to demonstrate that the admission of the video was harmful
to him. See footnote 9 of this opinion.
9
‘‘When an improper evidentiary ruling is not constitutional in nature, the
defendant bears the burden of demonstrating that the error was harmful.
. . . [W]hether [an improper ruling] is harmless in a particular case depends
[on] a number of factors, such as the importance of the . . . testimony in
the prosecution’s case, whether the testimony was cumulative, the presence
or absence of evidence corroborating or contradicting the testimony of
the witness on material points, the extent of cross-examination otherwise
permitted, and, of course, the overall strength of the prosecution’s case.
. . . Most importantly, we must examine the impact of the . . . evidence
on the trier of fact and the result of the trial. . . . [T]he proper standard
for determining whether an erroneous evidentiary ruling is harmless should
be whether the jury’s verdict was substantially swayed by the error. . . .
Accordingly, a nonconstitutional error is harmless when an appellate court
has a fair assurance that the error did not substantially affect the verdict.’’
(Internal quotation marks omitted.) State v. Ayala, 333 Conn. 225, 231–32,
215 A.3d 116 (2019).
10
See footnote 7 of this opinion.
11
The defendant argues that, in the video, Vidro Madigan enhanced the
victim’s credibility because she indicated to the victim that she believed
her allegations. Although, in the video, Vidro Madigan made statements to
the victim that could be interpreted as expressions of belief in the victim’s
statements, we are not persuaded that the jury would have interpreted such
statements accordingly. During her testimony, Vidro Madigan explained the
techniques that she used in conducting a forensic interview, which included
building a rapport with the children she interviewed and making them
comfortable so that they can answer questions in a narrative style. Vidro
Madigan testified, however, that making a determination as to whether or
not the child has made truthful statements was not a part of her job.
12
The court in Gould, having exercised its supervisory authority, also
noted that ‘‘[the witness] was not the victim of the crimes in this case and
her videotaped testimony, which we have reviewed, does not engender the
passion, animation or sympathy presented in the videotapes of child victims
of sexual abuse.’’ State v. Gould, supra, 241 Conn. 14. Although the defendant
relies on this small portion of the court’s analysis, we do not interpret it to
be integral to its holding in Gould or a rule of admissibility.
13
A ‘‘Chip Smith’’ charge provides guidance to a deadlocked jury in reach-
ing a verdict. See, e.g., State v. O’Neil, 261 Conn. 49, 74–75, 801 A.2d 730
(2002).
14
The defendant requested the following instruction: ‘‘Ladies and gentle-
men, I have received your note and will now have some further instructions
for you at this time. At the outset, let me make it clear to you that it is not
the purpose of these instructions to require or even suggest that you reach
a verdict in this case. I in no way wish to suggest or imply that a verdict
should or could be reached in this case; in fact, our legal system recognizes
the right of jurors not to agree. I do think, however, that the following
instructions may be of aid to you if, in fact, a verdict can be reached.
‘‘The verdict to which each of you agrees must express your own conclu-
sion and not merely the acquiescence on the conclusion of your fellow
jurors. Yet, in order to bring your minds to a unanimous result, you should
consider the question you have to decide not only carefully but also with
due regard and deference to the opinions of each other.
‘‘In conferring together, you ought to pay proper respect to each other’s
opinions and listen with an open mind to each other’s arguments. If the
much greater number of you reach a certain conclusion, dissenting jurors
should consider whether their opinion is a reasonable one when the evidence
does not lend itself to a similar result in the minds of so many of you who
are equally honest and equally intelligent, who have heard the same evidence
with an equal desire to arrive at the truth and under the sanctions of the
same oath.
‘‘But please remember this: Do not ever change your mind just because
other jurors see things differently or to get the case over with. As I told
you before, in the end, your vote must be exactly that—your own vote. As
important as it may be for you to reach a unanimous agreement, it is just
as important that you do so honestly and in good conscience.
‘‘I now ask you to resume your deliberations with these instructions in
mind.’’ (Emphasis in original.)
15
The court instructed the jury as follows: ‘‘Ladies and gentlemen, I’m
now going to give you an additional charge, and this charge is when the
jury fails to agree. And here is the charge. The instruction[s] that I shall
give you now are only to provide you with additional information so that
you may return to your deliberations and see whether you can arrive at a
verdict. Along these lines, I would like to state the following to you:
‘‘The verdict to which each of you agree must express your own conclusion
and not merely acquiesce in the conclusion of your fellow jurors, yet in
order to bring your minds to [a] unanimous result, you should consider the
question you have to decide, not only carefully, but also with due regard
and deference to the opinions of each other.
‘‘In conferring together, you ought to pay proper respect to each other’s
opinions and listen with an open mind to each other’s arguments. If the
much greater number of you reach a certain conclusion, dissenting jurors
should consider whether their opinion is a reasonable one when the evidence
does not lend itself to a similar result in the minds of so many of you who
are equally honest and equally intelligent, who have heard the same evidence
with an equal desire to arrive at the truth, and under the sanction of the
same oath.
‘‘But please remember this, do not ever change your mind just because
other jurors see things differently or to get the case over with. As I told
you before, in the end, your vote must be exactly that, your own vote. As
important as it is for you to reach a unanimous agreement, it is just as
important that you do so honestly and in good conscience.
‘‘What I have said to you is not intended to rush you into agreeing on a
verdict. Take as much time as you need to discuss this matter. There is no
hurry. So with that, you will continue your deliberations. Thank you.’’
16
The defendant also argues that the fact that the jury reached a verdict
following the court’s instructions ‘‘indicates the instruction coerced a ver-
dict.’’ Thus, the defendant appears to suggest that any verdict that follows
deadlocked jury instructions ipso facto is the product of coercion.
17
The defendant also refers to model jury instructions in other jurisdictions
that, in his view, comport with the language in his requested instructions
and make clear that the jury has a right not to agree on a unanimous verdict.