STATE v. CHRISTOPHER CARRION, SC 18960

Judicial District of Waterbury at G.A. 4

Criminal; Whether Victim's Videotaped Interview Properly Admitted as Substantive Evidence; Whether Unpreserved Claim of Instructional Error Waived Because Counsel had a "Meaningful Opportunity" to Review Proposed Jury Instruction and did not Object to it.  The defendant was convicted of multiple counts of first degree sexual assault and risk of injury to a child following a jury trial.  On appeal (128 Conn. App. 46), he claimed that the trial court improperly admitted the videotaped forensic interview of the minor victim, which contained statements that were inconsistent with her trial testimony, as substantive evidence under State v. Whelan, 200 Conn. 743 (1986).  While acknowledging that prior inconsistent statements that satisfy Whelan's requirements are deemed presumptively admissible, the defendant contended that that presumption was rebutted here because the reliability of the victim's videotaped statements was seriously undermined as a result of the highly suggestive and leading manner in which the interviewer questioned her.  The Appellate Court rejected that claim, observing that, while the interviewer asked leading questions, it was equally significant that the victim, on her own volition, provided critical information.  The court found that there was nothing so unduly coercive about the circumstances of the interview that grievously undermined the presumption of reliability afforded to the victim's statements.  The defendant's claim, the court opined, was ultimately nothing more than an attack on the credibility of the victim's statements.  Additionally, the court determined that, although the interviewer may have failed to comply with the prevailing standards for conducting a forensic interview, that fact did not necessarily render the videotaped interview grievously unreliable.  The court explained that the defendant's criticisms regarding the manner in which the interview was conducted were issues for the jury to consider in assessing the overall credibility of the victim's allegations of sexual abuse.  The defendant also sought review under State v. Golding of his unpreserved claim that the trial court improperly instructed the jury that "[t]he state is as much concerned with having an innocent person acquitted as in having a guilty person convicted."  The Appellate Court determined that the defendant waived that claim under State v. Kitchens, 299 Conn. 447 (2011).  Kitchens held that a challenge to a jury instruction may be deemed implicitly waived if defense counsel raises no objection to the instruction after being provided with a copy of the proposed instruction and a meaningful opportunity to review it.  In this certified appeal, the Supreme Court will review the Appellate Court's ruling that the victim's videotaped interview was properly admitted under Whelan. It will also determine whether that court properly concluded that the defendant waived his claim of instructional error where the defendant asserts that the only "meaningful opportunity" defense counsel had to review the final jury instructions was during the one hour lunch break on the day that the court instructed the jury.