State v. Jones ( 2015 )

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STATE v. JONES—DISSENT
EVELEIGH, J., with whom McDONALD, J., joins, dis-
senting. I respectfully disagree with the majority’s con-
clusion that the Appellate Court incorrectly determined
that the violations of State v. Singh, 259 Conn. 693,
793 A.2d 226 (2002), in the present case deprived the
defendant, Shelvonn Jones, of a fair trial. I further dis-
agree with the majority’s conclusion that ‘‘[i]n a case
that pits the testimony of the defendant against that of
the [complainant in the present case, George Harris],
such that the [complainant’s] version of events is
directly at odds with the defendant’s account of the
facts, and there is no way to reconcile their conflicting
testimony except to conclude that one of them is lying,
it is unlikely that asking the defendant directly whether
the [complainant] is lying ever could be so prejudicial
as to amount to a denial of due process.’’ The majority
acknowledges that questioning in which the prosecu-
tion asks a defendant to comment on the veracity of
other witnesses ‘‘is never appropriate’’ and that ‘‘we
consistently have declined the state’s invitation to carve
out an exception to the prohibition against ‘are they
lying’ questions in cases involving pure credibility con-
tests.’’ Nevertheless, the majority seems to carve out
that explicit exception for purposes of analyzing
whether the defendant was harmed by the improper
questioning, reasoning that ‘‘[o]ur refusal to adopt the
exception advanced by the defendant, however, does
not preclude us from acknowledging the logic that
underlies that proposed exception in determining
whether the defendant was prejudiced by the prosecu-
tor’s questioning . . . .’’ (Emphasis in original.) In
doing so, the majority weakens, if not, destroys the
Singh doctrine. Indeed, I cannot now discern a situation
wherein we will hold any Singh violation to be harmful.
In my view, if we consider these questions improper and
have clearly stated that prohibition so that prosecutors,
who are officers of the court, know that they are
improper, we must hold such officers of the court
accountable. We cannot weaken the harmless error
analysis of such improprieties so as to make the Singh
doctrine a paper tiger not only unworthy of respect, but
also totally disregarded by some prosecutors. I would
conclude that the Appellate Court properly applied the
factors set forth in State v. Williams, 204 Conn. 523,
540, 529 A.2d 653 (1987), and properly concluded that
the improprieties, the existence of which the state con-
cedes, deprived the defendant of a fair trial. Accord-
ingly, I respectfully dissent.
I agree with the facts and procedural history set forth
by the majority. I therefore begin by reciting the relevant
principles of law. As the majority explains: ‘‘In analyzing
claims of prosecutorial impropriety, we engage in a two
step process. . . . First, we must determine whether
any impropriety in fact occurred; second, we must
examine whether that impropriety, or the cumulative
effect of multiple improprieties, deprived the defendant
of his due process right to a fair trial. . . . To determine
whether the defendant was deprived of his due process
right to a fair trial, we must determine whether the sum
total of [the prosecutor’s] improprieties rendered the
defendant’s [trial] fundamentally unfair . . . . The
question of whether the defendant has been prejudiced
by prosecutorial [impropriety], therefore, depends on
whether there is a reasonable likelihood that the jury’s
verdict would have been different absent the sum total
of the improprieties.’’ (Internal quotation marks omit-
ted.) State v. Gould, 290 Conn. 70, 77–78, 961 A.2d
975 (2009).
‘‘Under the well established analysis of State v. Wil-
liams, supra, 204 Conn. 540, we consider: (1) the extent
to which the [impropriety] was invited by defense con-
duct or argument; (2) the severity of the [impropriety];
(3) the frequency of the [impropriety]; (4) the centrality
of the [impropriety] to the critical issues in the case;
(5) the strength of the curative measures adopted; and
(6) the strength of the state’s case. In determining
whether the defendant was denied a fair trial [by virtue
of prosecutorial impropriety] we must view the prose-
cutor’s comments in the context of the entire trial. . . .
The question of whether the defendant has been preju-
diced by prosecutorial [impropriety], therefore,
depends on whether there is a reasonable likelihood
that the jury’s verdict would have been different absent
the sum total of the improprieties.’’ (Internal quotation
marks omitted.) State v. Angel T., 292 Conn. 262, 287–88,
973 A.2d 1207 (2009).
In State v. Payne, 303 Conn. 539, 562–63, 34 A.3d 370
(2012), we clarified ‘‘that, when a defendant raises on
appeal a claim that improper remarks by the prosecutor
deprived the defendant of his constitutional right to a
fair trial, the burden is on the defendant to show, not
only that the remarks were improper, but also that,
considered in light of the whole trial, the improprieties
were so egregious that they amounted to a denial of
due process. . . . On the other hand . . . if the defen-
dant raises a claim that the prosecutorial improprieties
infringed a specifically enumerated constitutional right,
such as the fifth amendment right to remain silent or
the sixth amendment right to confront one’s accusers,
and the defendant meets his burden of establishing the
constitutional violation, the burden is then on the state
to prove that the impropriety was harmless beyond a
reasonable doubt.’’ (Citation omitted.)
In the present case, the defendant asserts that the
prosecutorial improprieties infringed on his right to
testify and present a defense in violation of the fifth
and sixth amendments to the United States constitution.
See Rock v. Arkansas, 483 U.S. 44, 51–53, 107 S. Ct.
2704, 97 L. Ed. 2d 37 (1987) (criminal defendant’s right
to testify guaranteed under fifth, sixth and fourteenth
amendments to United States constitution). I agree with
the defendant and would conclude that because the
improprieties infringed on the defendant’s right to tes-
tify and present a defense, the state has the burden of
proving that there is no reasonable likelihood that the
jury’s verdict would have been different in the absence
of the improprieties at issue in the present case.1 Specifi-
cally, the defendant chose to exercise his right to testify
in his own defense at trial, but the prosecutor impinged
on that right by using his decision to testify as an oppor-
tunity to improperly weaken the defendant’s credibility
through its conceded and repetitious violation of Singh.
Put another way, the defendant was not fully able to
properly exercise his right to testify in his own defense
because the prosecutor used the defendant’s decision
to exercise that fundamental constitutional right as an
opportunity to improperly question him on the ultimate
issue in the case—credibility.
‘‘As is evident upon review of these factors, it is not
the prosecutor’s conduct alone that guides our inquiry,
but, rather, the fairness of the trial as a whole. . . .
We are mindful throughout this inquiry, however, of the
unique responsibilities of the prosecutor in our judicial
system. A prosecutor is not only an officer of the court,
like every other attorney, but is also a high public offi-
cer, representing the people of the [s]tate, who seek
impartial justice for the guilty as much as for the inno-
cent. . . . By reason of his [or her] office, [the prosecu-
tor] usually exercises great influence upon jurors. [The
prosecutor’s] conduct and language in the trial of cases
in which human life or liberty are at stake should be
forceful, but fair, because he [or she] represents the
public interest, which demands no victim and asks no
conviction through the aid of passion, prejudice or
resentment. If the accused be guilty, he [or she] should
[nonetheless] be convicted only after a fair trial, con-
ducted strictly according to the sound and [well estab-
lished] 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 upon,
or to suggest an inference from, facts not in evidence,
or to present matters which the jury [has] no right to
consider.’’ (Citations omitted; internal quotation marks
omitted.) State v. Singh, supra, 259 Conn. 701–702.
‘‘Regardless of whether the defendant has objected
to an . . . [impropriety], a reviewing court must apply
the Williams factors to the entire trial, because there
is no way to determine whether the defendant was
deprived of his right to a fair trial unless the [impropri-
ety] is viewed in light of the entire trial. The application
of the Williams factors, therefore, is identical to the
third and fourth prongs of Golding,2 namely, whether
the constitutional violation exists, and whether it was
harmful. . . . [Thus], following a determination that
prosecutorial [impropriety] has occurred, regardless of
whether it was objected to, an appellate court must
apply the Williams factors to the entire trial.’’ (Footnote
added; internal quotation marks omitted.) State v.
Andrews, 313 Conn. 266, 280, 96 A.3d 1199 (2014).
In order to provide a background for my analysis, I
provide a brief summary of State v. Singh, supra, 259
Conn. 693. In Singh, the defendant had been convicted
of arson in the first degree after a jury trial. Id., 694–95.
On appeal, the defendant asserted, inter alia, that the
prosecutor had improperly asked the defendant to com-
ment on the veracity of other witnesses and highlighted
that testimony in the closing argument. Id., 702. Recog-
nizing that this court ‘‘previously [had] not had the
opportunity to address the well established evidentiary
rule that it is improper to ask a witness to comment
on another witness’ veracity,’’ this court explained that
the majority of jurisdictions find such questions to be
improper. Id., 706.
This court further explained the rationale behind the
rule prohibiting prosecutors from asking a defendant
to comment on the veracity of other witnesses. ‘‘First,
it is well established that determinations of credibility
are for the jury, and not for witnesses. . . . Conse-
quently, questions that ask a defendant to comment on
another witness’ veracity invade the province of the
jury. . . . Moreover, [a]s a general rule, [such] ques-
tions have no probative value and are improper and
argumentative because they do nothing to assist the
jury in assessing witness credibility in its fact-finding
mission and in determining the ultimate issue of guilt
or innocence.’’ (Citations omitted; internal quotation
marks omitted.) Id., 707–708. ‘‘Second, questions of this
sort also create the risk that the jury may conclude
that, in order to acquit the defendant, it must find that
the witness has lied. . . . This risk is especially acute
when the witness is a government agent in a criminal
case. . . . A witness’ testimony, however, can be
unconvincing or wholly or partially incorrect for a num-
ber of reasons without any deliberate misrepresentation
being involved . . . such as misrecollection, failure of
recollection or other innocent reason.’’ (Citations omit-
ted; internal quotation marks omitted.) Id., 708. ‘‘Simi-
larly, courts have long admonished prosecutors to avoid
statements to the effect that if the defendant is innocent,
the jury must conclude that witnesses have lied. . . .
The reason for this restriction is that [t]his form of
argument . . . involves a distortion of the govern-
ment’s burden of proof. . . . Moreover, like the prob-
lem inherent in asking a defendant to comment on the
veracity of another witness, such arguments preclude
the possibility that the witness’ testimony conflicts with
that of the defendant for a reason other than deceit.’’
(Citations omitted; footnote omitted; internal quotation
marks omitted.) Id., 709–10.
In Singh, this court concluded that the prosecutor’s
conduct in asking the defendant to comment on the
veracity of other witnesses and highlighting that testi-
mony in the closing argument was improper. Id., 712.
Further, this court concluded that the state had failed to
demonstrate that there was not a reasonable likelihood
that the jury’s verdict would have been different in
the absence of these and other improprieties. Id., 725.
Accordingly, this court concluded that the defendant
had been deprived of his right to a fair trial, reversed
his conviction, and remanded the case for a new trial. Id.
In the present case, the state concedes that three
questions and one statement in the prosecutor’s closing
argument were improper under Singh. As the majority
properly explains, the conceded improprieties were as
follows: ‘‘The three questions were: (1) ‘[A]ll this testi-
mony from [the complainant] then about the bus stop;
that was a lie?’ (2) ‘And, all the police officers’ testimony
[about the robbery] is a lie?’ (3) ‘So, what [a police
officer] testified to today [about finding marijuana in
the backseat of his police car] is all false?’ In addition,
during closing argument, the prosecutor paraphrased
the defendant’s answer when the defendant was asked
whether he had told the police that he was trying to
buy marijuana prior to the altercation as, ‘I never said
that; the police are lying apparently.’ ’’
On the basis of the state’s concession that the four
statements were improper, I turn to the Williams fac-
tors to determine whether they were prejudicial. First,
I consider whether the improprieties were invited by
defense conduct or argument. State v. Williams, supra,
204 Conn. 540. Although the majority does not rely
extensively on this Williams factor to support its con-
clusion, it does reason that ‘‘[i]n a case that pits the
testimony of the defendant against that of the [com-
plainant], such that the [complainant’s] version of
events is directly at odds with the defendant’s account
of the facts, and there is no way to reconcile their
conflicting testimony except to conclude that one of
them is lying, it is unlikely that asking the defendant
directly whether the [complainant] is lying ever could
be so prejudicial as to amount to a denial of due pro-
cess.’’ In State v. Ceballos, 266 Conn. 364, 409, 832 A.2d
14 (2003), this court rejected a similar claim. In Ceballos,
the state reasoned that the Singh violations were
‘‘invited by the ‘ ‘‘only possible’’ ’ defense theory that
[the complainant] had fabricated her claims.’’ Id. This
court rejected the state’s claim concluding that ‘‘we
reject the notion that, standing alone, a legitimate
defense theory can be viewed as inviting improper con-
duct on the part of the [prosecutor].’’ Id. Similarly, in
the present case, I would reject the notion that the
mere fact that the testimony of the defendant and the
testimony of the complainant are directly at odds with
each other can mean that the defendant invited the
impropriety or otherwise weigh in the state’s favor
under a Williams analysis.
I next turn to the severity and frequency of the impro-
prieties. The state claims, and the majority concludes,
that the improprieties were not severe or frequent. I
disagree. The majority states that ‘‘[p]erhaps the most
significant reason why the defendant in the present
case was not unduly prejudiced by the prosecutor’s
Singh violations is that two of them—arguably the two
most serious violations because they pitted the defen-
dant’s credibility directly against that of the police—
were not directed at the assault charge but, rather, at
the drug charge, which resulted in an acquittal. . . .
Because the jury found the defendant not guilty of the
drug charge, however, those two improprieties could
not have prejudiced the defendant unduly with respect
to that charge.’’ (Footnotes omitted.) The majority fur-
ther reasons that ‘‘[n]or can we conclude that those
improprieties prejudiced the defendant with respect to
the assault charge because it is undisputed that no
police officer provided material testimony with respect
to that charge.’’ I disagree. I recognize that this court
has reasoned: ‘‘[T]he inquiry into whether there was a
fair trial requires an examination of the impact of the
[improprieties] on each conviction. Depending on the
outcome of the analysis, the conviction on some
charges may be allowed to stand, while others may be
reversed.’’ State v. Spencer, 275 Conn. 171, 182, 881
A.2d 209 (2005). This principle, however, does not mean
that we parse improprieties by the charge to which they
might be most directly related. The majority does not
cite, and I cannot find, any case in which this principle
has been applied in this way. Instead, the principle
means that the sum total of the improprieties in a trial
may be prejudicial to some charges that are particularly
weak and have little physical evidence, but might not
be prejudicial to other charges that are particularly
strong, have physical evidence and do not involve credi-
bility determinations.
In the present case, which ultimately involved a credi-
bility determination, on three separate occasions the
prosecutor deliberately violated Singh by explicitly ask-
ing the defendant to comment on the veracity of other
witnesses and then emphasized that testimony in his
closing argument. As we have recognized, the import
of these improper questions is to distort the state’s
burden of proof and to make the jury feel like in order
to acquit the defendant, they must find that the other
witnesses are lying. State v. Singh, supra, 259 Conn.
709. The majority focuses on the fact that three of the
Singh violations related to the testimony of police offi-
cers and concludes that these Singh violations are,
therefore, irrelevant because no police officer provided
material testimony on the charge of assault, for which
the defendant was convicted. I disagree, and respect-
fully assert that the majority is missing the point. The
prosecutor did not ask the defendant to comment on
the veracity of the police officers to undermine the
credibility of those police officers, therefore, the fact
that the defendant was acquitted of the marijuana
charge is irrelevant. The prosecutor asked the defen-
dant to comment on the veracity of the police officers
to undermine the credibility of the defendant. These
questions about the veracity of the police officers were
part of an overall pattern that infected the fairness of
the entire trial because they were an improper, yet
integral part of the state’s theory of the case—that the
defendant is a liar. Therefore, the fact that the police
officers did not provide material testimony on the
assault charge is completely irrelevant. The Singh viola-
tions that related to the police officers contributed to
the fundamental unfairness of the trial because they
improperly undermined the credibility of the defendant.
As this court has frequently recognized, ‘‘[b]ecause the
inquiry must involve the entire trial, all incidents of
[improprieties] must be viewed in relation to one
another and within the context of the entire trial. The
object of inquiry before a reviewing court in [due pro-
cess] claims involving prosecutorial [impropriety],
therefore, is . . . only the fairness of the entire trial,
and not the specific incidents of [impropriety] them-
selves. Application of the Williams factors provides
for such an analysis . . . .’’ (Internal quotation marks
omitted.) State v. Luster, 279 Conn. 414, 427, 902 A.2d
636 (2006).3 Accordingly, I disagree with the majority
that two of the four conceded violations are not relevant
to our inquiry. As this court stated in State v. Warholic,
278 Conn. 354, 398, 897 A.2d 569 (2006), ‘‘the instances
of prosecutorial [improprieties] were not isolated
because they occurred during both the cross-examina-
tion of the defendant and the prosecutor’s closing . . .
arguments.’’ In the present case, the improprieties
involved the main witnesses in the trial and were
repeated during the closing argument. Accordingly, I
would conclude that this court must examine the preju-
dicial impact of all four improprieties as a whole and
that, taken as a whole, they are severe.
The majority concludes as follows: ‘‘[B]ecause Wil-
liams requires that we determine whether the prosecu-
torial impropriety prejudiced the defendant by
evaluating the impropriety in the context of the entire
trial, we must consider whether it was possible for the
jury to reconcile the testimony of the defendant and
the [complainant] without concluding that one of them
was lying. When, as in the present case, it is not possible
to do so, there is no reasonable possibility that asking
the defendant whether [another witness] testified truth-
fully would render the trial so unfair as to rise to the
level of a due process violation because, in such circum-
stances, the risks that ordinarily attend such a question
simply are not present. For example, asking the defen-
dant in the present case whether [the complainant] was
lying could not have led the jurors to overlook the
various, possible, innocent reasons for discrediting [the
complainant’s] testimony because the evidence and the
parties’ arguments did not allow for any such reasons.
Moreover, there was no likelihood that the question
invaded the province of the jury or reduced or distorted
the state’s burden of proof because, in order to decide
the case, the jury itself was required to determine which
of the two witnesses, [the complainant] or the defen-
dant, was lying. Thus, the answer that the defendant
gave in response to the prosecutor’s improper ‘is he
lying’ question, although irrelevant, could not have
caused the defendant undue harm.’’ I disagree.
Although the majority recognizes that ‘‘Williams
requires that we determine whether the prosecutorial
impropriety prejudiced the defendant by evaluating the
impropriety in the context of the entire trial,’’ the major-
ity never conducts a thorough Williams analysis.
Indeed, instead of using the six Williams factors to
address all of the improprieties as a whole, the majority
takes each of the four conceded improprieties and con-
siders whether each individual impropriety, by itself,
prejudiced the defendant. Such an analysis is incorrect.
Instead, under Williams, we examine all of the impro-
prieties together and the trial as a whole. State v. Singh,
supra, 259 Conn. 723 (‘‘whether the trial as a whole
was fundamentally unfair and that the [impropriety]
so infected the trial with unfairness as to make the
conviction a denial of due process’’ [internal quotation
marks omitted]). I respectfully disagree with the majori-
ty’s approach and the majority’s resultant conclusion.
In Singh, this court explicitly rejected the state’s
request to provide ‘‘an exception to the prohibition of
questions and comments on witnesses’ veracity when
the defendant’s testimony is the opposite of or contra-
dicts the testimony of other witnesses, thereby pre-
senting a basic issue of credibility . . . [that cannot]
be attributed to defects or mistakes in a prior witness’
perception or inaccuracy of memory, rather than to
lying. . . . The state contends that such an exception
is permissible because, under these circumstances, the
jury’s role is not usurped because it still must decide
ultimately which testimony to believe.’’ (Citations omit-
ted; emphasis omitted; internal quotation marks omit-
ted.) Id., 710–11. In rejecting the state’s invitation to
adopt such an exception, this court acknowledged that
such an exception is unnecessary because the prosecu-
tor may highlight inconsistencies ‘‘by other, proper
means’’ and that it would be difficult to know when to
apply such an exception because ‘‘testimony may be in
direct conflict for reasons other than a witness’ intent
to deceive.’’ Id., 711. In Singh, this court concluded that
the prosecutorial improprieties, as a whole, deprived
the defendant of a fair trial. Id., 725. By concluding in
the present case that it is not ‘‘possible for the jury
to reconcile the testimony of the defendant and the
[complainant] without concluding that one of them was
lying,’’ and that, in such a case, ‘‘there is no reasonable
possibility that asking the defendant whether [another
witness] testified truthfully’’ would render the trial fun-
damentally unfair, the majority essentially overrules
Singh.
I next turn to whether the effect of the prosecutorial
improprieties were mitigated by curative measures
taken by the trial court. In the present case, I would
agree with the Appellate Court that ‘‘no curative instruc-
tions were given because they were not requested
. . . .’’ State v. Jones, 139 Conn. App. 469, 482, 56 A.3d
724 (2012).
As this court has explained ‘‘[w]hen defense counsel
does not object, request a curative instruction or move
for a mistrial, he presumably does not view the alleged
impropriety as prejudicial enough to jeopardize seri-
ously the defendant’s right to a fair trial.’’ (Internal
quotation marks omitted.) State v. Paul B., 315 Conn. 19,
37, 105 A.3d 130 (2014). ‘‘[W]e emphasize that counsel’s
failure to object at trial, while not by itself fatal to a
defendant’s claim, frequently will indicate on appellate
review that the challenged comments do not rise to the
magnitude of constitutional error . . . .’’ (Emphasis
omitted; internal quotation marks omitted.) State v. Ste-
venson, 269 Conn. 563, 576, 849 A.2d 626 (2004). As this
court concluded in State v. Ceballos, supra, 266 Conn.
415, ‘‘the prosecutorial [impropriety] in the present case
. . . was sufficiently egregious to overcome the sugges-
tion that defense counsel did not think it was unfair at
the time.’’ Accordingly, I would conclude that the lack
of curative measures in the present case weighs in favor
of the defendant.
The final two Williams factors are the centrality of
the prosecutorial improprieties to the critical issues of
the case, and the strength of the state’s case. I consider
it appropriate in the present case to review these factors
together. See id. The improprieties in the present case
went to the central issue in the trial—the credibility of
the witnesses. There were no witnesses to the assault
besides the defendant and the complainant. The evi-
dence regarding the assault charge consisted of the
differing versions of events offered by the complainant
and the defendant. The parties both agree, and the
majority concludes, that the case turned on credibility.
I agree with the Appellate Court when it reasoned
as follows: ‘‘In light of the specific facts of this case,
however, the significance of the [prosecutor’s]
improper conduct increases considerably. . . . First,
the defendant was compelled to comment directly on
the veracity of police witnesses. Th[e] risk [Singh viola-
tions pose] is especially acute when the witness is a
government agent in a criminal case. . . . Indeed, Con-
necticut courts routinely instruct juries that they should
evaluate the credibility of a police officer in the same
way that they evaluate the testimony of any other wit-
ness . . . no doubt to check the heightened credibility
that government agents are afforded by some jurors.
. . . Second, the defendant was compelled to comment
directly on the veracity of the complainant. This ele-
vated the risk that the jury may conclude that, in order
to acquit the defendant, it must find that the witness
has lied. . . . Our Supreme Court has recognized that
these dangers [involve] a distortion of the government’s
burden of proof.’’ (Citations omitted; internal quotation
marks omitted.) State v. Jones, supra, 139 Conn. App.
478–79. ‘‘Third, the prosecutor subtly but unmistakably
mischaracterized the defendant’s responses in a manner
that ‘emphasized the improper nature of the questions
he had forced [the defendant] to answer.’ . . . In clos-
ing argument, the prosecutor summed up the defen-
dant’s testimony by stating: ‘Things are unraveling; one
story won’t work now. So what’s the answer; the answer
is, ‘‘I never said that;’’ ’ the police are lying apparently.’’’
But in responding to the prosecutor’s improper ques-
tion, the defendant specifically did not testify that police
were lying. He did testify that the complainant lied. And
he did testify that one officer’s testimony was ‘false’—
but that is to be distinguished from ‘lying,’ which means
a deliberate falsehood. A witness’ testimony . . . can
be . . . wholly or partially incorrect for a number of
reasons without any deliberate misrepresentation being
involved . . . such as misrecollection, failure of recol-
lection or other innocent reason. . . . The prosecutor’s
mischaracterization of the defendant’s testimony ele-
vated the risk of ‘preclud[ing] the possibility that the
witness’ testimony conflict[ed] with that of the defen-
dant for a reason other than deceit.’ ’’ (Citations omit-
ted; emphasis altered; footnotes omitted.) Id., 479–80.
The only evidence the state introduced as to who
initiated the altercation was the complainant’s testi-
mony. The parties agree that the case entirely turned on
credibility. There can be no question that the conceded
improprieties go directly to the credibility of the defen-
dant as compared to the complainant and police offi-
cers, nor is there any debate that credibility was the
central issue at trial. The complainant’s rendition of
events was contrary to the defendant, who maintained
that it was the complainant who assaulted him.
This court has repeatedly concluded that prosecu-
torial improprieties are prejudicial when they impact
the central issue in the case, such as a credibility issue
between the victim and the defendant. For instance, in
State v. Ceballos, supra, 266 Conn. 416, in examining
the impact of prosecutorial improprieties in a case
involving sexual assault where there was no physical
evidence, this court concluded that ‘‘when the prosecu-
tion’s case rests on the credibility of the victim, it is
‘not particularly strong . . . .’ ’’ This court further rea-
soned that ‘‘all of the improprieties were connected
directly to the critical issue, indeed the only disputed
issue at trial [credibility] . . . .’’ (Internal quotation
marks omitted.) Id., 416. This court concluded that
‘‘without independent physical evidence to prove that
the defendant had sexually assaulted [the victim], or
even that [the victim] had been sexually assaulted at all,
the significance of the [prosecutor’s] improper conduct
increases considerably.’’ Id., 416–17. Similarly, in State
v. Alexander, 254 Conn. 290, 291–92, 755 A.2d 868
(2000), the defendant was convicted of sexual assault
in the fourth degree and risk of injury to a child. In that
case we relied on the fact that the ‘‘improper comments
directly addressed the critical issue in this case, the
credibility of the victim and the defendant.’’ Id., 308.
We concluded that the prosecutorial impropriety
deprived the defendant of a fair trial. Id. ‘‘There were
no curative measures adopted, and the state’s case was
not particularly strong in that it rested on the credibility
of the victim.’’ Id.; see also State v. Angel T., supra, 292
Conn. 295 (prosecutorial impropriety deprived defen-
dant of fair trial when case was ‘‘a credibility contest
between the defendant and his accusers’’). In the pre-
sent case, the prosecutorial improprieties went to the
central issue in the case and the state’s case was not
strong.
I would assert that the final Williams factor, the
strength of the state’s case, weighs most strongly in
favor of the defendant. The state and majority concede
that the entire case against the defendant on the assault
charge relied on the testimony of the defendant against
the testimony of the complainant. There was not only
no physical evidence, but also there was no eyewitness
testimony. It is axiomatic that in making the determina-
tion of whether an impropriety is harmless, we must
look to what other evidence, not tainted by the impro-
priety, was admitted to support the jury’s conclusion.
See, e.g., State v. Thompson, 266 Conn. 440, 456, 832
A.2d 626 (2003) (concluding that, although admission
of certain testimony was abuse of discretion, it was
harmless error because, inter alia, prosecutor did not
emphasize or rely upon testimony during closing argu-
ment and there was significant other evidence of defen-
dant’s guilt); State v. Hafford, 252 Conn. 274, 297, 746
A.2d 150 (‘‘[t]his court has held in a number of cases
that when there is independent overwhelming evidence
of guilt, a constitutional error would be rendered harm-
less beyond a reasonable doubt’’ [internal quotation
marks omitted]), cert. denied, 531 U.S. 855, 121 S. Ct.
136, 148 L. Ed. 2d 89 (2000). In the present case, it is
undisputed that there was no other evidence regarding
the assault charge besides the testimony of the defen-
dant and the complainant. Therefore, the state’s case
was weak and there was absolutely no evidence to
support the defendant’s conviction that was not tainted
by the improprieties. Accordingly, I would conclude
that this Williams factor very strongly weighs in favor
of the defendant, and that an overall analysis of the
Williams factors favors a remand to the trial court for
a new trial.
Having reviewed all of the Williams factors, I would
conclude that the state has not demonstrated, beyond
a reasonable doubt, the reasonable likelihood that the
jury’s verdict would not have been different absent the
sum total of the improprieties in the present case. State
v. Luster, supra, 279 Conn. 442. The prosecutorial
improprieties deprived the defendant of a fair trial
because they was pervasive, uninvited by the defendant
and were not subjected to specific curative measures.
Moreover, the lack of physical evidence in the present
case reduced the present case to a credibility contest
between the defendant and the complainant, indicating
that the jury may well have been unduly influenced by
the improprieties. Accordingly, I agree with the Appel-
late Court’s decision to order a new trial in the pre-
sent case.
Therefore, I respectfully dissent.
1
Nevertheless, even if I were to conclude that the defendant had the
burden in this case, I would conclude that he has met that burden.
2
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989); see also
In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying third
prong of Golding)
3
I recognize that we have relied on the fact that if a defendant is acquitted
of one charge, it is relevant to determining how prejudicial the improprieties
are in a particular case. In the present case, however, I would conclude
that the fact that the jury acquitted the defendant of the drug charge, although
relevant to our inquiry, its relevancy is diminished by the fact that the drug
charge was particularly weak in the present case.