State v. Maguire

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The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and 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 repro- duced and distributed without the express written per- mission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** STATE OF CONNECTICUT v. MICHAEL G. MAGUIRE (SC 18828) Rogers, C. J., and Palmer, Zarella, Eveleigh and Vertefeuille, Js. Argued January 10—officially released November 19, 2013 Richard Emanuel, for the appellant (defendant). Michele C. Lukban, senior assistant state’s attorney, with whom were Sharmese L. Hodge, assistant state’s attorney, and, on the brief, Stephen J. Sedensky III, state’s attorney, for the appellee (state).  Opinion PALMER, J. A jury found the defendant, Michael G. Maguire, guilty of risk of injury to a child, in violation of General Statutes § 53-21 (a) (2), and of sexual assault in the fourth degree, in violation of General Statutes § 53a-73a (a) (1) (A). The trial court rendered judgment in accordance with the jury verdict, and the defendant appealed.1 On appeal, the defendant seeks a new trial, claiming that (1) the deputy assistant state’s attorney (prosecutor) made certain improper statements during closing arguments and in connection with defense coun- sel’s cross-examination of the key state’s witness, (2) the trial court improperly admitted into evidence a video recording and transcript of a forensic interview of the then eight year old female victim2 under the tender years exception to the hearsay rule, codified at General Statutes § 54-86l (a)3 and § 8-10 of the 2009 edition of the Connecticut Code of Evidence,4 without first conducting a hearing, as required by those provi- sions, to determine whether the circumstances sur- rounding the interview provided particularized guar- antees of trustworthiness and that the interview was not conducted in preparation of a legal proceeding, and (3) the trial court improperly permitted the state to adduce certain testimony as substantive evidence of guilt under the tender years hearsay exception because such testimony was admissible solely as constancy of accusation evidence; see Conn. Code Evid. § 6-11 (c);5 and, thus, for the limited purpose of corroborating the victim’s testimony. We agree with the defendant’s claim of prosecutorial impropriety and, on that basis, reverse the trial court’s judgment. With respect to the defen- dant’s remaining claims, which we address because they are likely to arise again at a new trial, we agree with the defendant that the trial court improperly admit- ted the forensic interview evidence without first con- ducting a hearing to determine whether the victim’s statements during the interview were trustworthy and were not elicited in preparation of a legal proceeding. We further conclude that the trial court properly admit- ted the tender years testimony as substantive evidence of guilt. The state’s evidence against the defendant, which the jury reasonably could have credited, may be summa- rized as follows. The victim’s mother, S, met the defen- dant in 2005, having been introduced by S’s girlfriend, G. At the time, the defendant was living in California. In October, 2007, the defendant relocated to Connecti- cut to be closer to his family. Shortly thereafter, he began dating S’s cousin, D. The defendant and D spent a great deal of time socializing with S and G, and both the defendant and D occasionally helped S with her children. When the defendant arrived in Connecticut in Octo- ber, 2007, S was in the midst of an acrimonious divorce from the victim’s father, F. A stay-at-home mother, S hired the defendant to help her with the victim and the victim’s three brothers. In particular, S paid the defendant to care for the children and to act as a buffer between her and F on the days that F would come to pick up the children. The defendant would transition the children from the house to F’s car so that S would not have to interact with F. S also hired the defendant to transcribe threatening telephone conversations between her and F that she secretly had recorded for possible use in court. In the conversations, F often threatened S about her relationship with G and what he was willing to do to obtain custody of the children. On the days that the defendant went to the victim’s home to transition the children to F’s care, the defen- dant would play with the children until F arrived. In February, 2008, S and G went to Indonesia for one month, and the defendant and D housesat for S while she was away. Although the children spent that month with F, the school bus would drop them off each after- noon at S’s house, where F’s housekeeper would meet them and take them back to F’s house. The defendant never spent the night at the victim’s home when the children were there. In April, 2008, F filed a motion for sole custody of the children because he objected to S’s romantic relationship with G. He also filed a motion for an order prohibiting G from spending the night at S’s house. From February to June, 2008, the defendant and D lived at G’s house because G spent most of her nights at S’s house. On June 25, 2008, the victim was playing outside with her ten year old brother, B.6 Their adult cousin, C, who recently had moved in with the family, was babysitting for them while S was out. While playing, the victim told B that, a few weeks earlier, the defendant had placed his hand inside her underwear and then smelled his fingers. Upon learning about this incident, B ran into the house to tell C what the victim had told him. The victim ran after B to stop him from telling C but was unable to catch B before he told C. After speaking to B, C then spoke to the victim, who confirmed that B’s account of what the victim had told him was accurate and truthful. The victim grew very upset when C told her that he was going to inform S what the victim had told B about the defendant. When S returned home later that evening, C informed her about the victim’s allegations. The next morning, S called a family thera- pist that she and F had been seeing and scheduled an emergency session. S and F met with the therapist later that day to discuss the victim’s allegations against the defendant. As a mandatory reporter, the therapist reported the allegations to the Department of Children and Families (department), which, in turn, forwarded the information to the Redding Police Department. Later that afternoon, S and F went to the Redding police station to file a formal complaint against the defendant. While there, they spoke with Officer Anthony Signore. After taking their statement, Signore contacted the Dan- bury Regional Child Advocacy Center (child advocacy center) to schedule a forensic interview of the victim by a multidisciplinary investigative team (MIT). An MIT consists of mental health and law enforcement profes- sionals, as well as department employees, all of whom work collaboratively to investigate and treat cases of reported sexual abuse. On July 1, 2008, Donna Meyer, the director of the MIT program at the child advocacy center, conducted a forensic interview of the victim while Signore and a department caseworker watched from behind two-way glass that was tinted to prevent the victim from seeing them. During the interview, which was video recorded and transcribed for subsequent investigative and trial use, Meyer asked the victim whether anyone ever had tried to touch her on her ‘‘private.’’ She responded that the defendant had touched her private once. Meyer asked the victim to tell her everything that she remem- bered about the incident, beginning with where she was when it happened. The victim responded that the defendant had put his hand inside her pants on one occasion while the two of them were sitting on the couch in the television room at S’s house. Meyer asked the victim whether the defendant had wanted her to do anything to his body. She responded, ‘‘I think he pulled out this thing and then it was poking out of his pants.’’ Meyer then asked the victim, ‘‘[s]o you saw his private?’’ The victim responded in the affirmative. When Meyer asked the victim to demonstrate on an anatomically correct doll what the defendant had done to her, the victim put her hand inside the underwear of the doll and moved her hand around. Later, when Meyer asked at what point the defendant had shown her his ‘‘private,’’ the victim responded, ‘‘well . . . I didn’t see it.’’ When asked whether the defendant had tried ‘‘to get [her] to touch his private or do anything to [him],’’ the victim responded that he had not. When Meyer asked the victim whether the defendant had done ‘‘anything to his private,’’ she responded that he had not. When asked whether the defendant had touched her on the inside or outside of her private, the victim responded that she did not know. The victim also told Meyer that her younger brother was in the room playing the drums when the incident occurred but that she did not think that he saw it. After the forensic interview, Signore went to the defendant’s home to inform him of the victim’s allega- tions and to obtain a statement from him. According to Signore, the defendant seemed shocked by the allega- tions and denied ever touching any of S’s children inap- propriately, including the victim. Later that same day, the defendant called Signore and told him that there must have been some misunderstanding, that S’s chil- dren were always jumping on him and that he thought that the victim had a crush on him, which might explain her statements about him. Signore himself did not inter- view the victim because it was department policy for the MIT to interview alleged victims of child abuse. Shortly after the forensic interview, the victim’s par- ents reconciled. The defendant was charged with one count of attempt to commit sexual assault in the first degree, one count of sexual assault in the fourth degree, and two counts of risk of injury to a child, one based on sexual contact and the other based on an act likely to impair the health and morals of a child. At the defendant’s trial, a video recording and transcript of the forensic interview of the victim, as well as B’s and C’s testimony relating the victim’s statements to them about the defendant’s misconduct, were admitted into evidence pursuant to the tender years exception to the hearsay rule over defense counsel’s objection. The victim, who was ten years old at the time of trial, also testified, as did the defendant, who vehemently denied the victim’s allega- tions. At the conclusion of the trial, the jury found the defendant guilty of the risk of injury count based on sexual contact and sexual assault in the fourth degree but found him not guilty of the other risk of injury count and of attempt to commit first degree sexual assault. The trial court sentenced the defendant to a term of imprisonment of twelve years, execution suspended after six and one-half years, and fifteen years probation with special conditions. This appeal followed. Addi- tional facts and procedural history will be set forth as necessary. I We first address the defendant’s claim that prosecu- torial impropriety deprived him of a fair trial. Specifi- cally, the defendant claims that the prosecutor engaged in impropriety by repeatedly asserting, during rebuttal closing argument, that both the defendant and defense counsel were asking the jury to ‘‘condone child abuse’’ and by claiming, inter alia, that defense counsel had ‘‘lied’’ to the victim during cross-examination, that the defendant’s testimony was ‘‘coached,’’ and that the defense strategy was a game of ‘‘smoke and mirrors . . . .’’ (Internal quotation marks omitted.) The defen- dant also contends that the prosecutor engaged in impropriety during defense counsel’s cross-examina- tion of Meyer by suggesting, contrary to defense coun- sel’s assertions, that redacted portions of the transcript of the forensic interview revealed that Meyer did in fact question the victim about inconsistent statements that the victim made as to whether she actually had seen the defendant’s penis. The defendant maintains that, because these improprieties bore directly on the central issue in the case, namely, the defendant’s credibility, they very easily could have tipped the balance in a case that turned entirely on whom the jury found to be more credible, the defendant or the victim. The state contends that the prosecutor’s arguments were not improper and that, even if they were, any such improprieties were harmless. We agree with the defendant. The following additional facts are relevant to our analysis of this claim. Prior to Meyer’s testimony, and after reviewing the entire transcript of the forensic interview with the trial court and defense counsel, the prosecutor agreed to redact those portions of the inter- view that were not relevant to the charged offenses. This accounted for approximately one-half of the tran- script of the fifteen minute interview. During his cross- examination of Meyer, defense counsel questioned her as to whether she ever had challenged the victim regard- ing her conflicting statements about seeing the defen- dant’s penis. Specifically, defense counsel asked Meyer whether she ever had ‘‘[told the victim] . . . that [Meyer was] confused when [the victim] . . . said she [both] saw and didn’t see [the defendant’s] penis . . . . Did you tell her that that didn’t make sense to you?’’ The prosecutor objected to this question, stating in relevant part: ‘‘He’s asking her about the full interview, and that’s not in evidence. We could put the full interview in evi- dence, and the jury could decide if . . . Meyer fully challenged the child . . . on an inconsistent statement. But the . . . full forensic interview . . . is not in evi- dence.’’ After excusing the jury, the court asked the prosecutor whether it was her contention that ‘‘there’s a portion of the transcript that’s been redacted in which [such a] conversation took place?’’ The prosecutor responded, ‘‘Yes, Your Honor.’’ The court then asked the prosecutor to identify where in the transcript Meyer had questioned the victim about such an inconsistency, but the prosecutor was unable to do so. At this point, defense counsel interjected: ‘‘Judge, there is no such place . . . and the [s]tate [previously] agreed that all pertinent portions [of the transcript] were [before the jury].’’ Defense counsel then moved for a mistrial, arguing that the state had ‘‘an obligation not simply to strike hard blows, but fair blows . . . .’’ Counsel argued that for the prosecutor ‘‘to suggest to this jury that some- thing was withheld that is material to [a] claim . . . [is] simply dishonest and ought not to be tolerated.’’ The court denied the motion for a mistrial, and defense counsel then requested that the jury be instructed ‘‘that the state [has] agreed that all portions of the interview relating to sexual misconduct were . . . shown to [the jury]. Otherwise, the state is creating the impression that I’m playing some game with [the jury], and . . . that’s . . . patently untrue . . . .’’ The prosecutor objected to defense counsel’s requested instruction, arguing that counsel had opened the door to her objec- tion by questioning Meyer about portions of the tran- script that were not in evidence. Without hearing any explanation from the prosecutor as to what she meant by this argument, the trial court indicated that it had heard enough and overruled the prosecutor’s objection. The jury then returned to the courtroom. The court did not give the curative instruction that defense counsel had requested but, instead, instructed the jury simply ‘‘to disregard [the prosecutor’s] objection and not to consider it in [its] deliberations.’’ The next day, defense counsel reiterated his concern that the prosecutor had created a serious misimpression about the record by suggesting that the defendant or defense counsel was trying to hide something from the jury. Thereafter, following the conclusion of the eviden- tiary portion of the trial and the prosecutor’s initial closing argument, defense counsel stated at the begin- ning of his closing argument to the jury: ‘‘I’m asking you to acquit [the defendant]. I’m asking you to acquit [the defendant] not out of sympathy for him, and not because we condone the abuse of . . . children or the rape of innocence . . . but because . . . justice and the law [require] it . . . .’’ Shortly thereafter, defense counsel stated: ‘‘If there is no hesitation [as to the defen- dant’s guilt] as you deliberate together and consider the evidence, then . . . we have no hope. You have no choice but to convict [the defendant] and give him over to the judge to do what the law requires.’’ Defense counsel argued, however, that the state’s evidence fell far short of that which was necessary to convict. Coun- sel then went through the evidence, pointing out weak- nesses in the state’s case and explaining, on the basis of the evidence, why the victim would be motivated to fabricate her claim against the defendant. In particular, defense counsel argued that, according to the defendant’s testimony, the victim developed a strong attachment to him during the eight months that he and S were friends, always wanting to sit next to him at a restaurant or in a movie theatre. Counsel fur- ther argued that the defendant was the unwitting victim of a family in turmoil, ‘‘torn by wayward desires and accusations’’ and F’s suspicions that S ‘‘had taken up with another woman,’’ namely, G, in the family home. In particular, he argued that, during the relevant time period, the victim’s household ‘‘had a certain sexual charge to it’’ and that the victim may have been reacting to it or expressing a repressed desire for the defendant, to whom she had grown quite attached. Defense counsel posited that what began as a small lie told to an older brother in the backyard took on a life of its own when B repeated it to an adult. Defense counsel also asserted that the lie had the immediate effect of reuniting the victim’s parents, who, until that moment, had been ‘‘at war’’ with one another, a fact that could not have been lost on the victim. Counsel also underscored inconsis- tencies in the victim’s statements about the alleged incident, noting that the victim’s account changed in material respects in the two years that had elapsed between the forensic interview and the trial, with signif- icant details being added at trial. Defense counsel also argued that ‘‘[t]here’s no easy or good way to come to a jury of ordinary people and say [that] an eight year old is not to be trusted. But we’re asking you to use her own words to doubt what she said . . . .’’ Counsel observed, among other things, that, in the forensic interview, which had been con- ducted shortly after the alleged abuse, the victim could not remember any details of that abuse except that the defendant had touched her on one occasion while they were sitting on the couch in the television room. By contrast, in her trial testimony two years later, the vic- tim stated that the incident began in her bedroom and then continued in the television room, while she was playing the drums and while she was sitting upside down on the couch with her feet in the air. Counsel also noted that, whereas the victim told Meyer during the forensic interview that her younger brother was in the room playing the drums when the incident occurred, she testified at trial that he was not in the room. According to counsel, she also explained that she did ‘‘[n]ot really’’ have a memory of having seen the defen- dant’s penis.7 At the conclusion of his argument, defense counsel stated: ‘‘As to the claims of risk of injury and [sexual assault in the fourth degree], if you conclude [that the defendant] put his hand down [the victim’s] pants, and you’re satisfied beyond a reasonable doubt, then you will convict him, and there’s nothing that I can do to persuade you otherwise. I won’t ask you to disregard the law. . . . If [the defendant] abused [the victim] he deserves your scorn; but if he didn’t, he deserves your pity . . . . The state has not proven its case beyond a reasonable doubt and your duty is to acquit.’’ Defense counsel concluded his argument by stating: ‘‘I don’t ask you for pity. I don’t ask you for mercy. I ask you for justice. I ask you to set [the defendant] free.’’ The prosecutor began her rebuttal closing argument as follows: ‘‘Ladies and gentlemen, that’s not what he’s asking you for. What he’s asking you for is to condone child abuse. What he’s asking you for is to allow a world in which a forty-one year old man sticks his hand down the front of an eight year old’s pants, claims to tickle her . . . [t]akes his hand out, smells it while his erect penis is sticking out of his pants, and, because he did that to an eight year old child, because he did it in a room where no one else was present, because he did in it in a house where mom and dad were separated and there was a woman staying the night . . . you can’t find him guilty. That’s what defense [counsel and the defendant want] you to believe. That’s what they want you to do. They want you to condone child abuse in this courtroom. They don’t want you to look at that little girl that sat on the stand and testified before you . . . . They don’t want you to look at her testimony. . . . They want you to say, hey, guess what? Because she’s eight [years old] and it was just her [testimony alone, you should find the defendant not guilty].’’ After asserting that defense counsel had ‘‘lied to [the victim]’’ when he told her that his questions were not intended to trick her, the prosecutor returned to her earlier theme, stating: ‘‘So when [defense counsel] sits here and says to you today, we’re not here to condone child abuse or we’re not trying to beat up . . . on the [victim], listen to that. . . . Is he telling you the truth . . . when he says that?’’ Later, when the prosecutor asked the jury if defense counsel ‘‘[i]s . . . giving you a magic trip or is he really giving you reasonable doubt,’’ she character- ized defense counsel’s hypothesis as to why the victim had falsely accused the defendant as ‘‘stuff that . . . [counsel] has tried to throw against the wall’’ and repeatedly asserted that counsel had attempted to divert the jury’s attention by seeking to have it look the other way: ‘‘Look over here, look over here. . . . Don’t look over here at the [facts of the case]. Look over there.’’ Finally, the prosecutor made the following argument with respect to the defendant’s own testimony: ‘‘I would assume what you wanted to hear was the truth, not a bunch of excuses, not . . . a big cloud of smoke and mirrors . . . . You wanted to hear the truth. That’s not what you heard. You heard a . . . coached conversa- tion between a defense attorney and his client.’’ The prosecutor further argued: ‘‘[I]t’s not a secret that child abuse is a crime. But what counsel’s asking you to do is to say that . . . child abuse that happens in secret is legal, and that is not the law. I ask you to find the defendant guilty . . . .’’ Defense counsel did not object to any portion of the prosecutor’s rebuttal closing argument. The following legal principles guide our analysis of the defendant’s claim. ‘‘In analyzing claims of prosecu- torial impropriety, we engage in a two step analytical process. . . . The two steps are separate and distinct. . . . We first examine whether prosecutorial impropri- ety occurred. . . . Second, 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 fairness of the trial. Whether that impropri- ety was harmful and thus caused or contributed to a due process violation involves a separate and distinct inquiry.’’ (Citations 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 prosecu- tor deprived the defendant of his constitutional right to a fair trial, the burden is on the defendant to show . . . that the remarks were improper . . . .’’8 (Internal quotation marks omitted.) State v. Taft, 306 Conn. 749, 762, 51 A.3d 988 (2012).  We turn first to the initial step of the due process analysis, namely, whether the prosecutor engaged in impropriety. With respect to the defendant’s claim that such impropriety occurred during the prosecutor’s rebuttal argument to the jury, ‘‘we previously have rec- ognized . . . [that] prosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments. . . . When making closing argu- ments to the jury, [however] [c]ounsel must be allowed a generous latitude in argument, as the limits of legiti- mate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, as the state’s advocate, a prosecutor may argue the state’s case forcefully, [provided the argument is] fair and based [on] the facts in evidence and the reasonable inferences to be drawn therefrom. . . . Moreover, [i]t does not follow . . . that every use of rhetorical language or device [by the prosecutor] is improper. . . . The occasional use of rhetorical devices is simply fair argument. . . . ‘‘Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury’s attention from the facts of the case. [The prosecutor] is not only an officer of the court, like every attorney, but is also a high public officer, representing the people of the [s]tate, who seek impar- tial justice for the guilty as much as for the innocent. . . . By reason of his office, he usually exercises great influence [on] jurors. His conduct and language in the trial of cases in which human life or liberty [is] at stake should be forceful, but fair, because he represents the public interest, which demands no victim and asks [for] no conviction through the aid of passion, prejudice, or resentment. If the accused [is] guilty, he should [none- theless] be convicted only after a fair trial, conducted strictly according to the sound and well-established rules which the laws prescribe. While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment [on], or to suggest an inference from, facts not in evidence, or to present matters which the jury ha[s] no right to consider.’’ (Internal quotation marks omitted.) State v. Luster, 279 Conn. 414, 428–29, 902 A.2d 636 (2006). Furthermore, ‘‘a prosecutor may not express her own opinion, either directly or indirectly, as to the credibility of a witness or the guilt of the defendant. . . . Such expressions of personal opinion are a form of unsworn and unchecked testimony. . . . These expressions of opinion are particularly difficult for the jury to ignore because of the special position held by the prosecutor. . . . A prosecutor’s voucher for a witness is particularly dangerous for two reasons. First, such comments may convey the impression that the prosecutor is aware of evidence supporting charges against the defendant of which the jury has no knowledge. . . . Second, the prosecutor’s opinion carries with it the imprimatur of the [state] and may induce the jury to trust the [state’s] judgment rather than its own view of the evidence.’’ (Citations omitted; internal quotation marks omitted.) State v. Alexander, 254 Conn. 290, 304–305, 755 A.2d 868 (2000). ‘‘[I]t is axiomatic that a prosecutor may not advance an argument that is intended solely to appeal to the jurors’ emotions and to evoke sympathy for the victim or outrage at the defendant. . . . An appeal to emotions, passions, or prejudices improperly diverts the jury’s attention away from the facts and makes it more difficult for it to decide the case on the evidence in the record. . . . When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors [that] are likely to skew that appraisal. . . . An improper appeal to the jurors’ emotions can take the form of a personal attack on the defendant’s character . . . or a plea for sympathy for the victim or her family.’’ (Cita- tions omitted; internal quotation marks omitted.) State v. Long, 293 Conn. 31, 59, 975 A.2d 660 (2009). We agree with the defendant that the prosecutor’s repeated assertions, during her rebuttal closing argu- ment, that the defendant and defense counsel were asking the jury to ‘‘condone child abuse’’ and to find ‘‘that . . . child abuse that happens in secret is legal,’’ and, further, that defense counsel was lying when he stated otherwise, were highly improper and intended not only to appeal to the jurors’ emotions but also to demean the defendant and defense counsel in the eyes of the jurors. In characterizing the defense theory of the case as she did, the prosecutor sought to demonstrate, unfairly, and without a factual basis, that the defense was illegitimate and wholly unworthy of consideration, for no juror reasonably could be expected to credit a defense predicated on condonation or approval of child sexual abuse. Equally inappropriate were the prosecu- tor’s comments questioning the veracity of defense counsel by urging the jury to conclude that counsel was not ‘‘telling [the jury] the truth’’ when he stated that neither he nor the defendant condoned child abuse. Nothing in the record supports this assertion, which, in fact, was a blatant misrepresentation of the theory of the defense, namely, that the defendant never had engaged in any inappropriate conduct toward the vic- tim. There also is nothing in the record to support the prosecutor’s assertion that defense counsel had ‘‘lied’’ to the victim when he told her that he was not trying to trick her with his questions, and the prosecutor’s unsubstantiated accusation to that effect undoubtedly was intended to undermine defense counsel’s effective- ness as an advocate by denigrating his integrity and disparaging his veracity.  We find no merit in the state’s contention that the prosecutor’s remarks were invited by defense counsel’s closing argument. On the contrary, as we explained, defense counsel began his argument to the jury by stat- ing that it should find the defendant not guilty ‘‘not out of sympathy for him, and not because we condone the abuse of . . . children . . . but because . . . justice and the law [require] it,’’ and he followed these remarks by reminding the jurors that they had a duty to find the defendant guilty if they determined that the state had proven its case beyond a reasonable doubt. Defense counsel concluded his argument in a similar manner, asserting, inter alia, that the defendant deserved to be convicted if the jury were to find that the state had proven its case. In light of the foregoing, we are puzzled by the state’s contention that the prosecutor’s remarks, when viewed in context, constituted a fair response to defense counsel’s closing argument. In fact, what the prosecutor did was to seize upon certain remarks that defense counsel had made in his argument to the jury and to twist them into a disparaging refrain, which she then repeated over and over for dramatic effect. Indeed, short of an explicit plea by defense counsel for the jury to approve of or ignore criminal behavior, we are hard- pressed to imagine any defense argument that properly could be described by the state in the provocative terms that the prosecutor used in the present case.9 Nor do we find any merit in the state’s contention that the jury likely would have recognized that the pros- ecutor’s comments were not intended to disparage the integrity or role of defense counsel or to denigrate the defense theory through mischaracterization but, rather, to challenge the theory of defense ‘‘by focusing the jury on the fact that, contrary to the defendant’s assertion, justice and the law . . . supported the defendant’s guilt.’’ Again, we are perplexed by the state’s claim because a prosecutor never is justified in intentionally mischaracterizing the defense theory of the case or in falsely accusing defense counsel of lying to the victim and the jury, and there is no mistaking the improper purpose of such argument by the prosecutor in the present case and its intended effect on the jury. In a similar vein, the state also maintains that the prosecutor’s use of the term ‘‘smoke and mirrors’’ was not improper because it was responsive to defense counsel’s arguments as to why the victim might have fabricated her claims against the defendant. We pre- viously have expressed our disapproval of a prosecu- tor’s use of that term, ‘‘even as an isolated reference . . . because it implie[s], to whatever degree, that defense counsel had not based his argument on fact or reason . . . but had intended to mislead the jury by means of an artfully deceptive argument.’’ (Internal quo- tation marks omitted.) State v. Outing, 298 Conn. 34, 85, 3 A.3d 1 (2010), cert. denied, U.S. , 131 S. Ct. 1479, 179 L. Ed. 2d 316 (2011). Indeed, as the Appel- late Court has explained, a prosecutor who uses the phrase ‘‘smoke and mirrors’’ ‘‘implie[s] that the defen- dant’s attorney intended to deceive and thereby impugn[s] the integrity of the defendant’s attorney.’’ State v. Orellana, 89 Conn. App. 71, 103, 872 A.2d 506, cert. denied, 274 Conn. 910, 876 A.2d 1202 (2005); accord State v. Serrano, 91 Conn. App. 227, 238, 880 A.2d 183, cert. denied, 276 Conn. 908, 884 A.2d 1029 (2005). The effect of this impropriety undoubtedly was com- pounded by the prosecutor’s rebuttal argument, in which she stated that defense counsel had taken the jury on a ‘‘magic trip,’’ that he had coached the defen- dant, and that he had attempted to sidetrack the jury through misdirection and by all of the ‘‘stuff’’ that he ‘‘tried to throw against the wall’’ during his closing remarks to the jury.10 Of course, if the prosecutor had wished to focus the jury on weaknesses in the defen- dant’s theory of defense, there were ample ways for her to do so that would not have involved belittling remarks or personal attacks on the credibility of the defendant and defense counsel. Cf. State v. Stevenson, 269 Conn. 563, 585–86, 849 A.2d 626 (2004) (‘‘[The assis- tant state’s attorney’s statement that the defense wit- nesses had a motive to lie was not improper because the] remarks underscored an inference that the jury could have drawn entirely on its own, based on the evidence presented. . . . The assistant state’s attorney was not saying that she vouched for her witnesses’ truthfulness and the defendant’s witnesses’ lack of truthfulness; rather, she was urging the jury to find that they were truthful or untruthful for the reasons stated. Her remarks drew on facts in evidence and did not rely on her special position as an assistant state’s attorney and, therefore, were not improper.’’). For example, the prosecutor could have argued that defense counsel’s assertion that the victim’s claims likely were the prod- uct of a child’s sexual fantasy was merely self-serving speculation, unsupported by the evidence. We also agree with the defendant that the prosecu- tor’s objection during defense counsel’s cross-examina- tion of Meyer, indicating that redacted portions of the transcript of the forensic interview refuted defense counsel’s assertion that Meyer did not challenge the victim with respect to inconsistencies in the victim’s claims against the defendant, was improper. The state does not dispute that, moments before Meyer’s testi- mony, the prosecutor, after reviewing the transcript of the forensic interview with defense counsel and the trial court, agreed to redact those portions of the inter- view that were not relevant to the charged offenses. The state nevertheless contends that the prosecutor ‘‘cannot be faulted’’ for her objection because defense counsel’s question was ‘‘reasonably susceptible to an interpretation’’ that he was asking Meyer whether she had challenged the victim about any inconsistencies in her statements at any point during the interview, including those parts of the interview that were redacted. We reject as unfounded the state’s contention that defense counsel’s question was susceptible of more than one interpretation. As we have explained, defense counsel asked Meyer whether she ever had ‘‘[told the victim] . . . that [Meyer was] confused when [the vic- tim] . . . said she [both] saw and didn’t see [the defen- dant’s] penis . . . . Did you tell her that that didn’t make sense to you?’’ Meyer responded, ‘‘Not at that particular moment. No, I don’t think so.’’ Defense coun- sel then stated: ‘‘Not at any . . . moment, correct?’’ When Meyer responded, ‘‘[o]kay,’’ the prosecutor objected, arguing that defense counsel was ‘‘asking [Meyer] about the full interview, and that’s not in evi- dence. We could put the full interview in evidence, and the jury could decide if . . . Meyer fully challenged the [victim] . . . on an inconsistent statement. But . . . the full forensic interview is not in evidence.’’ In light of the foregoing, it strains credulity for the state to argue that the prosecutor was confused by defense counsel’s question and may have believed that defense counsel was asking Meyer whether she had challenged the victim about some other inconsistency in her state- ments. Indeed, one would fully expect the state to sup- port such an argument by identifying some other inconsistency in the victim’s statements to which the prosecutor reasonably might have been referring, but the state has failed to do so. Moreover, our review of the video recording and transcript of the forensic interview reveals no such inconsistency. We must con- clude, therefore, consistent with the defendant’s con- tention, that the prosecutor’s objection was intended to create the impression, contrary to defense counsel’s assertions, that Meyer had questioned the victim about inconsistences in her statements even though the prose- cutor knew that Meyer had done no such thing. Our conclusion is bolstered by the fact that the prosecutor had reviewed the redacted portions of the transcript shortly before her objection, rendering highly implausi- ble any claim that she c