State v. Jose R. ( 2021 )

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STATE OF CONNECTICUT v. JOSE R.*
(SC 20184)
McDonald, D’Auria, Mullins, Kahn, Ecker and Keller, Js.
Syllabus
Convicted of four counts of sexual assault in the first degree and three
counts of risk of injury to a child in connection with the sexual abuse
of his daughter, V, the defendant appealed to this court, claiming that
the trial court improperly sentenced him to a period of probation on
each sexual assault count and that certain improper remarks made by
the prosecutor during closing and rebuttal arguments violated his due
process right to a fair trial and his right against self-incrimination. The
charges stemmed from incidents that began when V was nine years old,
in which the defendant engaged in sexual activity with V and showed
her pornographic videos, but V did not disclose the abuse until she was
eleven years old. The defendant was then interviewed by an investigator
from the Department of Children and Families and, on two other occa-
sions, by a detective, M, during which he denied sexually abusing V or
showing her pornography. At trial, V testified, inter alia, that the defen-
dant had sexually abused her when she was nine years old, and M
testified about her two interviews with the defendant, but there was no
physical evidence or eyewitness testimony, and the defendant did not
testify. After the jury returned its verdict, the trial court sentenced the
defendant to concurrent terms of ten years’ incarceration on each count
of risk of injury to a child and, on each count of sexual assault in the
first degree, to concurrent terms of twenty-five years’ incarceration,
execution suspended after twenty years, followed by ten years of proba-
tion. On the defendant’s appeal, held:
1. The trial court improperly imposed a sentence that included a period of
probation in connection with the defendant’s convictions of sexual
assault in the first degree, and, accordingly, this court vacated the defen-
dant’s sentence and remanded the case to the trial court for resentencing:
case law and the plain language of the relevant statutes (§ 53a-29 (a)
and (Rev to. 2013) § 53a-70 (b) (3)) established, and the state conceded,
that special parole was the only form of supervised release a trial court
could impose upon convicting the defendant of the class A felony of
sexual assault in the first degree.
2. The defendant could not prevail on his claim that certain remarks made
by the prosecutor during closing and rebuttal arguments were improper:
a. This court declined the defendant’s invitation to overrule State v.
Payne (303 Conn. 538), in which this court clarified that a defendant
bears the burden of proving that a prosecutorial impropriety deprived
him or her of the general due process right to a fair trial, whereas the
state bears the burden of proving harmlessness beyond a reasonable
doubt when the defendant alleges the violation of a specifically enumer-
ated constitutional right, such as the right against self-incrimination.
b. The prosecutor did not improperly comment on the defendant’s failure
to testify in violation of his right against self-incrimination: the prosecu-
tor’s various comments contrasting V’s in court testimony with the defen-
dant’s out-of-court statements to M and the investigator were not
improper because they did nothing to draw the jury’s attention, either
directly or indirectly, to the fact that the defendant did not testify at
trial and, instead, merely asked the jury to compare the victim’s and the
defendant’s versions of events and to decide which version was more
credible; moreover, the prosecutor did not improperly comment on the
defendant’s failure to testify by asking the jurors whether there was any
reasonable explanation why they should not find V credible, as that
remark was a rhetorical device that the prosecutor used to ask the jurors
to refer to their knowledge of human nature, and a reasonable jury would
have understood that remark to be a commentary on V’s veracity rather
than the defendant’s silence; furthermore, the context of the prosecutor’s
entire closing argument, and particularly his emphasis on the believability
of V’s testimony, her performance during cross-examination, and the
consistency of her testimony with the evidence adduced at trial, made
it clear that the jury would not have naturally and necessarily considered
the prosecutor’s isolated comment that the credibility of a party is best
determined by how the party performs on cross-examination to be a
comment on the defendant’s failure to testify.
c. The prosecutor’s remarks did not constitute an improper expression
of personal opinion regarding the evidence, V’s credibility and the defen-
dant’s guilt but, rather, were legitimate commentary on the evidence
adduced at trial; when viewed in the context of the prosecutor’s entire
closing argument, his remarks that ‘‘the only conclusion’’ to be drawn
is that V testified credibly and that ‘‘the only result’’ is to find the defen-
dant guilty underscored an inference, namely, that V was credible and
that the defendant was guilty of the crimes charged, that the jury could
have drawn entirely on its own on the basis of the evidence presented
at trial, including V’s testimony regarding the sexual assaults, the lack
of any reliable evidence indicating that she had a motive to lie, and the
defendant’s contradictory out-of-court statements.
d. There was no merit to the defendant’s claim that the prosecutor improperly
relied on facts not in evidence when he remarked that the defendant
had failed to disclose to the police until his second interview with M
that he spent time alone with V at home after school: the record reflected
that the defendant made contradictory statements to the police regarding
whether he spent time at home alone with V, M’s testimony regarding
her two interviews with the defendant was ambiguous with respect to
whether it was at the first or second interview that the defendant dis-
closed spending time alone with V, and the prosecutor’s remarks regard-
ing the timing of the defendant’s disclosure were a permissible commen-
tary that was predicated on M’s testimony and the reasonable inferences
that could be drawn from it; moreover, defense counsel did not object
to the prosecutor’s characterization of M’s testimony.
Argued October 20, 2020—officially released March 19, 2021**
Procedural History
Substitute information charging the defendant with
four counts of sexual assault in the first degree and
three counts of risk of injury to a child, brought to the
Superior Court in the judicial district of Hartford and
tried to the jury before D’Addabbo, J.; verdict and judg-
ment of guilty, from which the defendant appealed to
this court. Reversed in part; further proceedings.
Megan L. Wade, assigned counsel, with whom were
James P. Sexton, assigned counsel, and, on the brief,
Emily Graner Sexton, assigned counsel, for the appel-
lant (defendant).
Jonathan M. Sousa, deputy assistant state’s attorney,
for the appellee (state).
Opinion
ECKER, J. Following a jury trial, the defendant, Jose
R., was convicted of four counts of sexual assault in
the first degree in violation of General Statutes (Rev.
to 2013) § 53a-70 (a) (2)1 and three counts of risk of
injury to a child in violation of General Statutes § 53-
21 (a)2 for the sexual abuse of his daughter, V. On
appeal, the defendant claims that (1) the trial court
improperly sentenced him to a period of probation on
each count of sexual assault in violation of General
Statutes § 53a-29 (a),3 and (2) the prosecutor made
improper remarks during closing argument and rebut-
tal, which deprived him of his due process right to a
fair trial under the fourteenth amendment and his fifth
amendment right against self-incrimination. We agree
with the defendant’s first claim but disagree with his
second claim. We therefore reverse the defendant’s
judgment of conviction only as to the sentence imposed
and remand the case to the trial court for resentencing.
The jury reasonably could have found the following
facts. The defendant and V’s mother, R, were involved
in an on-again, off-again romantic relationship for
approximately ten years, during which they had two
children: V, who was born in March, 2004, and V’s
younger sister, who was born in 2010. When V was nine
years old, she lived in Windsor Locks with her mother,
her younger sister, her maternal aunt, her aunt’s boy-
friend, and her cousin. While school was in session
during this time, either V’s aunt or the defendant
watched V after school for approximately one to two
hours in the afternoon until V’s mother arrived home
from work with her younger sister, who attended day-
care during the day.
The sexual abuse of V began when she and the defen-
dant were home alone together after school. The abuse
started slowly, with the defendant removing V’s shirt
and touching her breasts. Eventually, the abuse pro-
gressed to digital penetration, penile-vaginal penetra-
tion, fellatio and cunnilingus. When V expressed dis-
comfort with the sexual activity, the defendant told her
that it was ‘‘okay’’ and ‘‘fun.’’ On two occasions, the
defendant showed V pornographic videos on her moth-
er’s laptop and told her ‘‘this is what we should do.’’
In January, 2014, V developed a cyst on the outside
of her vagina, which caused her significant pain and
irritation. R examined the cyst and showed it to the
defendant. Concerned about the cyst, R brought V to the
pediatrician, who referred V to a surgeon. The surgeon
removed the cyst in February, 2014. After the surgery,
the defendant stopped sexually assaulting V.
Between V’s tenth and twelfth birthdays, the defen-
dant married a woman who had her own children, thus
forming a new family. The new arrangement caused a
period of estrangement during which the defendant did
not see V or her sister. In an effort to reunify her children
with their father, R began bringing V and V’s sister to
therapy.
In December, 2015, when V was eleven years old, R
caught V watching pornography on her Kindle tablet
(Kindle). This was not the first time that V had engaged
in this type of behavior; R twice previously had discov-
ered V watching sexually explicit movies on her Kindle.
R was upset, and she grabbed the Kindle away from V
and slapped her on the wrist. R asked V why she kept
watching sexually inappropriate movies. In response,
V disclosed to her mother that the defendant had
‘‘touched her and that they would watch inappropriate
things.’’ R was devastated, and, after calling her sisters,
she notified the police.
The Windsor Locks Police Department and the
Department of Children and Families (DCF) conducted
a joint investigation into V’s allegations. DCF investiga-
tor Carmen Karecki interviewed the defendant during
the first week of December, 2015. The defendant was
very nervous during the interview, and his hands were
shaking. The defendant explained that he suffered from
depression, kidney dysfunction, and memory problems.
The defendant informed Karecki that, when V was nine
years old, he would watch her after school, during
which time he made sure that she did her homework
and bathed. The defendant denied watching pornogra-
phy with V or accessing pornography on R’s computer
but admitted that he previously had watched porno-
graphic movies with R on the television.
Dawn Morini, a detective with the Windsor Locks
Police Department, also interviewed the defendant,
once on December 10, 2015, and a second time on
December 22, 2015. During the first interview, the defen-
dant’s hands were shaking, and he informed Morini that
‘‘he was born like that and that he had depression.’’
The defendant denied sexually abusing V or showing
her pornographic movies. The defendant explained that
he thought R and V had fabricated the sexual assault
allegations out of a desire ‘‘to get more child support
out of him.’’ Morini asked the defendant ‘‘whether he
would ever have time alone with [V],’’ and the defendant
‘‘at one point [responded that] he did have time alone
with her, and another time he said that he had both
children there.’’
In the second interview, Morini again asked the defen-
dant about his shaking hands, and the defendant
explained that ‘‘he believed it was Parkinson’s disease.’’
At the conclusion of the second interview, the defen-
dant gave Morini the following written statement: ‘‘I
watched [V] for about an hour to an hour and [one]
half. During this time I never watched a pornographic
movie with [V]. One time when [V] was about [nine] or
[ten] she had a sore/blister on her vagina. Her mother
was concerned and showed me the sore/blister . . .
and I look[ed] at [V’s] private area. This was before [V]
went to surgery for the problem. I never touched [V]
on her private area ever. I never exposed myself or did
anything [to V].’’
The defendant subsequently was arrested and
charged in a seven count amended information with
four counts of sexual assault in the first degree in viola-
tion of § 53a-70 (a) (2) and three counts of risk of injury
to a child in violation of § 53-21 (a). Following a jury
trial, at which the defendant did not testify, the jury
found the defendant guilty of all seven charges. The
trial court rendered judgment in accordance with the
jury’s verdict and sentenced the defendant to twenty-
five years of imprisonment, execution suspended after
twenty years, and ten years of probation on each count
of sexual assault in the first degree and ten years of
imprisonment on each count of risk of injury to a child.
The sentences were imposed concurrently, for a total
effective sentence of twenty-five years of imprison-
ment, execution suspended after twenty years, and ten
years of probation. This appeal followed.
I
The defendant first claims that the trial court improp-
erly sentenced him to ten years of probation on each
of his four sexual assault convictions because § 53a-29
(a) permits only a period of probation to be imposed
‘‘upon conviction of any crime, other than a class A
felony . . . .’’ (Emphasis added.) The state concedes
that ‘‘the defendant’s sentences on [the sexual assault]
counts . . . are illegal because they contain probation-
ary terms.’’ We agree.
The defendant did not preserve his claim of sentenc-
ing error in the trial court, but we may review the
defendant’s claim on direct appeal in light of the state’s
concession that the defendant’s sentence is illegal. See
State v. Victor O., 301 Conn. 163, 193, 20 A.3d 669(reviewing unpreserved claim of illegal sentence on
direct appeal because state conceded that sentence was
illegal), cert. denied, 565 U.S. 1039, 132 S. Ct. 583, 181
L. Ed. 2d 429 (2011).4 As in the present case, the defen-
dant in Victor O. was convicted of the class A felony
of sexual assault in the first degree under a prior revi-
sion of § 53a-70 and sentenced to a term of imprison-
ment followed by a period of probation. Id., 165, 193;
see General Statutes (Rev. to 2003) § 53a-70 (b) (2).
The state conceded that the sentence imposed by the
trial court was illegal on the ground that ‘‘probation
was not an authorized sentence because the defendant
had been convicted of a class A felony.’’ State v. Victor
O., 320 Conn. 239, 248 n.9, 128 A.3d 940 (2016); see
General Statutes § 53a-29 (a) (‘‘[t]he court may sentence
a person to a period of probation upon conviction of any
crime, other than a class A felony’’); see also General
Statutes (Rev. to 2013) § 53a-70 (b) (3) (‘‘[a]ny person
found guilty under this section shall be sentenced to a
term of imprisonment and a period of special parole
pursuant to subsection (b) of section 53a-28 which
together constitute a sentence of at least ten years’’).
We agreed and, therefore, remanded the case to the
trial court for resentencing. See State v. Victor O., supra,301 Conn. 193–94; see also State v. Victor O., supra,320 Conn. 248 n.9 (clarifying that, in State v. Victor O.,
supra, 301 Conn. 163, this court held that ‘‘special parole
was the only form of supervised release that could be
imposed’’ for conviction of class A felony under §§ 53a-
29 (a) and 53a-70 (b) (3)).
Pursuant to the authority established in State v. Vic-
tor O., supra, 301 Conn. 163, the plain language of
§§ 53a-29 (a) and 53a-70 (b) (3),5 and the state’s conces-
sion, we conclude that the trial court improperly
imposed a period of probation on each of the defen-
dant’s four sexual assault convictions. Accordingly, we
vacate the defendant’s sentence and remand this case
to the trial court for resentencing. See, e.g., State v.
LaFleur, 307 Conn. 115, 164, 51 A.3d 1048 (2012) (‘‘Pur-
suant to [the aggregate package] theory, we must vacate
a sentence in its entirety when we invalidate any part
of the total sentence. On remand, the resentencing court
may reconstruct the sentencing package or, alterna-
tively, leave the sentence for the remaining valid convic-
tion or convictions intact.’’ (Internal quotation marks
omitted.)).
II
The defendant next claims that the prosecutor vio-
lated his fifth amendment right against self-incrimina-
tion and his fourteenth amendment right to a fair trial
by making improper remarks during closing argument
and rebuttal.6 Specifically, the defendant contends that
the prosecutor improperly (1) commented indirectly on
the defendant’s failure to testify at trial, (2) expressed
his personal opinion on the strength of the evidence,
the credibility of V, and the defendant’s guilt, and (3)
relied on facts not in evidence. The state responds that
the prosecutor’s remarks were not improper and that,
even if they were, any impropriety was harmless. We
conclude that the defendant has failed to establish that
the prosecutor’s challenged remarks were improper.
‘‘In analyzing claims of prosecutorial impropriety, we
engage in a two step analytical process. . . . The two
steps are separate and distinct. . . . We first examine
whether prosecutorial impropriety occurred. . . . Sec-
ond, if an impropriety exists, we then examine whether
it deprived the defendant’’ of a constitutionally pro-
tected right. (Internal quotation marks omitted.) State
v. Payne, 303 Conn. 538, 560, 34 A.3d 370 (2012). In
Payne, we clarified that the standard governing a prose-
cutorial impropriety claim depends on the nature of
the constitutional right allegedly violated. ‘‘[W]hen a
defendant raises on appeal a claim that improper
remarks by the prosecutor deprived the defendant of
his constitutional right to a fair trial, the burden is on
the defendant to show, 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.’’ Id., 562–63. ‘‘On
the other hand . . . if the defendant 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 amend-
ment right to confront one’s accusers, and the defen-
dant 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.’’ Id., 563.
As an initial matter, the defendant asks us to revisit
and overrule Payne. He first argues that that there is
no legitimate distinction between prosecutorial impro-
priety claims implicating general due process rights and
those implicating specifically enumerated rights. Sec-
ond, and alternatively, he contends that, even if such
a distinction exists, Payne’s burden shifting framework
improperly collapses the two step analytical process
governing our review. We disagree with both argu-
ments. As we explained in Payne, the different ‘‘alloca-
tion of the burden is appropriate because, when a defen-
dant raises a general due process claim, there can be
no constitutional violation in the absence of harm to
the defendant caused by denial of his right to a fair
trial. The constitutional analysis and the harm analysis
in such cases are one and the same.’’ Id., 563–64; see
also State v. LaBrec, 270 Conn. 548, 562 n.1, 854 A.2d
1 (2004) (Borden, J., concurring) (recognizing that, ‘‘if
the [constitutional] error was harmless, then the defen-
dant was not deprived of a fair trial,’’ and, ‘‘if the defen-
dant was deprived of a fair trial, then the error cannot be
considered harmless’’). In contrast, when a prosecutor
makes improper remarks that violate a defendant’s spe-
cifically enumerated constitutional rights, the constitu-
tional analysis and the harm analysis are separate and
distinct inquiries. See State v. A. M., 324 Conn. 190, 204,
152 A.3d 49 (2016) (analyzing separately whether ‘‘the
prosecutor violated [the defendant’s] fifth amendment
rights by directly referencing his failure to testify’’ and
‘‘whether the state has proven beyond a reasonable
doubt that the violation was harmless’’). Regardless of
the type of constitutional right at stake, the burden is
always on the defendant to show that the prosecutor’s
impropriety resulted in the violation of a constitutional
right. See id., 199; State v. Payne, supra, 303 Conn. 562–
63.
With these principles in mind, we turn to the merits
of the defendant’s prosecutorial impropriety claims. In
the present case, all of the prosecutor’s challenged
remarks occurred during closing argument and rebuttal.
‘‘As we previously have recognized, prosecutorial [impro-
priety] of a constitutional magnitude can occur in the
course of closing arguments. . . . When making clos-
ing arguments to the jury, [however, counsel] must be
allowed a generous latitude in argument, as the limits
of legitimate 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 prose-
cutor may argue the state’s case forcefully, [provided
the argument is] fair and based upon the facts in evi-
dence and the reasonable inferences to be drawn there-
from. . . . Moreover, [i]t does not follow . . . that
every use of rhetorical language or device [by the prose-
cutor] is improper. . . . The occasional use of rhetori-
cal 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 upon jurors. . . . While the privilege of coun-
sel 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 [that] the jury ha[s] no right to consider.’’ (Inter-
nal quotation marks omitted.) State v. Ciullo, 314 Conn.
28, 37–38, 100 A.3d 779 (2014).
A
We begin our analysis with the defendant’s claim
that the prosecutor made various remarks that the jury
naturally and necessarily would have construed as an
indirect comment on his failure to testify in violation
of his right against self-incrimination under the fifth
amendment to the United States constitution.7 ‘‘The fifth
amendment prohibits the state from forcing the defen-
dant to be a witness against himself, and . . . this pro-
tection also prohibits prosecutors from commenting at
trial on the defendant’s decision not to testify.’’ State
v. A. M., supra, 324 Conn. 200. The reason for this
restriction is that ‘‘allowing a prosecutor to comment
on the defendant’s refusal to testify would be equivalent
to imposing a penalty for exercising his constitutional
right to remain silent.’’8 Id.‘‘Even an indirect remark by the prosecuting attorney
may violate a defendant’s privilege against self-incrimi-
nation if it draws the jury’s attention to the failure of
the accused to testify.’’ State v. Arline, 223 Conn. 52,
66, 612 A.2d 755 (1992). ‘‘[W]hen it is unclear whether
the prosecutor’s comments at issue referred to the
defendant’s failure to testify,’’ a reviewing court
‘‘appl[ies] what is known as the naturally and necessar-
ily test’’ to determine whether a fifth amendment viola-
tion occurred. (Internal quotation marks omitted.) State
v. A. M., supra, 324 Conn. 201–202. ‘‘That test asks
whether the language used [by the prosecutor was]
manifestly intended to be, or was . . . of such a charac-
ter that the jury would naturally and necessarily take
it to be a comment on the failure of the accused to
testify.’’ (Emphasis in original; internal quotation marks
omitted.) Id., 201. ‘‘[I]n applying this test, we must look
to the context in which the statement was made in order
to determine the manifest intention [that] prompted it
and its natural and necessary impact upon the jury.’’
(Internal quotation marks omitted.) State v. Parrott,
262 Conn. 276, 293, 811 A.2d 705 (2003).
The defendant first claims that the prosecutor
improperly commented on the defendant’s failure to
testify at trial by contrasting V’s in-court testimony with
the defendant’s out-of-court statements to DCF and the
police. Specifically, the defendant contends that the
following four remarks, which focused on the defen-
dant’s out-of-court statements, impermissibly drew the
jury’s attention to the fact that he did not testify at trial:
(1) ‘‘Now, [V] was quizzed on the dates on when things
happened and didn’t happen. However, the defendant
himself didn’t even know when [V] had the procedure
[to remove the vaginal cyst]. In his written statement—
which you’ll have—he says she had it sometime
between nine and ten. So what’s more accurate, his
memory of the dates or [V], where she gives you an
incident that can be dated by a medical procedure,
and she says things stopped at that point?’’ (2) ‘‘And I
explained the state’s argument is that [V’s] testimony
was consistent with all the other testimony and that
the defendant’s statements were consistent with the
defendant’s own statements.’’ (3) ‘‘And, as I said, what
evidence, if any, is there that [V’s] testimony was contra-
dicted by anybody other than the defendant saying it
didn’t happen? However, look at the defendant’s state-
ments. I’d argue, as I said, not only [were they] contra-
dicted by [V], by [V’s] mother and her aunt, [they were]
contradicted by [the defendant] himself: I’m not alone
with her; I am alone with her . . . .’’ And (4) ‘‘[I]f you
go about things appropriately and you focus on the
testimony and you focus on [V] and you focus on the
corroboration, the problem is, the state would argue,
you’re going to find her credible and you’re going to
find [the defendant’s] inconsistent statements to DCF
and the police not credible, and you’re going to convict,
so they can’t have that so let’s have another story alto-
gether.’’
The jury in this case was presented with evidence of
two different and mutually exclusive versions of
events—V’s in-court testimony that the defendant sexu-
ally assaulted her after school when she was nine years
old, and the defendant’s out-of-court statements that
no sexual assaults occurred. There was no physical
evidence or eyewitness to corroborate either V’s or
the defendant’s testimony, and, therefore, the jury was
presented with one essential question—whom to
believe? See, e.g., State v. Fernando V., 331 Conn. 201,
216, 202 A.3d 350 (2019) (in absence of physical evi-
dence and eyewitnesses to corroborate sexual assault,
victim’s ‘‘testimony was the only evidence of the defen-
dant’s guilt, and, therefore, [the] case turned largely on
whether the jury believed [the victim]’’ (internal quota-
tion marks omitted)). It was the sole province of the
jury to resolve the inconsistencies between V’s testi-
mony and the defendant’s statements, and to believe
all of V’s testimony, all of the defendant’s statements,
or only a part of each. See, e.g., State v. Meehan, 260
Conn. 372, 381, 796 A.2d 1191 (2002) (‘‘[i]t is axiomatic
that evidentiary inconsistencies are for the jury to
resolve, and it is within the province of the jury to
believe all or only part of a witness’ testimony’’). In this
context, a prosecutor does not commit an impropriety
by summarizing the relevant evidence and arguing ‘‘that
the jury should find the victim credible because of the
consistencies in the state’s evidence.’’ State v. Ruffin,
316 Conn. 20, 31, 110 A.3d 1225 (2015). Furthermore,
a prosecutor properly may ‘‘direct the jury’s attention
to the alleged weakness of the defendant’s version of
the incident as set forth in his out-of-court statements’’;
State v. Haase, 243 Conn. 324, 337, 702 A.2d 1187 (1997),
cert. denied, 523 U.S. 1111, 118 S. Ct. 1685, 140 L. Ed.
2d 822 (1998); and discuss ‘‘the weight to be afforded
the defendant’s [out-of-court] statements . . . .’’ State
v. Correa, 241 Conn. 322, 360, 696 A.2d 944 (1997); see
also State v. Rivera, 169 Conn. App. 343, 352–54, 150
A.3d 244 (2016) (prosecutor’s remarks urging jury to
assess defendant’s credibility on basis of two out-of-
court statements to police were not improper), cert.
denied, 324 Conn. 905, 152 A.3d 544 (2017); State v.
Rupar, 86 Conn. App. 641, 652–53, 862 A.2d 352 (2004)
(prosecutor’s statement that, in sexual assault cases,
‘‘ ‘it’s often a victim’s word against a defendant’s word
as to what occurred’ ’’ was not improper because it was
not ‘‘intended as a comment on the defendant’s failure
to testify’’), cert. denied, 273 Conn. 919, 871 A.2d 1030(2005); State v. Smalls, 78 Conn. App. 535, 544, 827
A.2d 784 (‘‘[o]ral statements of a defendant introduced
through the testimony of witnesses can be a facet of
whether the defendant’s version of events is to be
believed when the defendant has chosen not to testify’’),
cert. denied, 266 Conn. 931, 837 A.2d 806 (2003).
Absolutely nothing in any of the prosecutor’s chal-
lenged statements drew the jury’s attention, either
directly or indirectly, to the fact that the defendant did
not testify at trial. The prosecutor merely asked the
jury to compare the victim’s version of events with the
defendant’s version of events and to decide for itself
which version was more credible. The prosecutor did
not suggest by implication or otherwise that the defen-
dant’s version was less credible or of a different quality
because it derived from out-of-court statements rather
than live, in-court testimony. We therefore conclude
that the prosecutor’s remarks comparing V’s in-court
testimony with the defendant’s out-of-court statements
were not improper.9
The defendant next claims that the prosecutor indi-
rectly commented on the defendant’s failure to testify
by asking questions in closing argument, the answers to
which only the defendant could provide. The following
additional facts are relevant to this claim. During clos-
ing argument, the prosecutor stated that, due to the lack
of physical evidence and eyewitnesses, the outcome of
this case should be ‘‘decided on two things: credibility
[and] corroboration . . . .’’ With respect to credibility,
the prosecutor asked the jury to consider ‘‘who’s more
credible, [V] or the party who can’t even keep straight
his medical issues and who he’s alone with and who
he’s not alone with? I’d argue that it’s undisputed that
what [V] testif[ied] [to], if you find her credible, would
meet all the elements of all the charges. So, really, your
argument is, is she credible or not? If you don’t have
a reasonable explanation, then why would you not find
her credible?’’ The prosecutor then addressed the expla-
nation that the defendant had proffered to the police as
to why V’s allegations were unworthy of belief, namely,
because she and R wanted more child support. The
prosecutor asked: ‘‘How would fabricating a—how
would getting a person arrested for sexual assault
amount to you getting more child support? It would
seem more logical to get you less child support. I don’t
know. That was never explained by him, how he thought
that this was being used—there was never any mention
about them shaking him down or we’ll recant if you
give us more money. That was just he put that out there;
they want[ed] more child support from me . . . .’’
Our case law makes clear that ‘‘a prosecutor is prohib-
ited from asking for explanations [that] only a defendant
can provide because such questions are an indirect
comment on the defendant’s failure to testify.’’ (Internal
quotation marks omitted.) State v. Arline, supra, 223
Conn. 67. To determine whether a prosecutor’s request
for an explanation is an indirect comment on the defen-
dant’s failure to testify, we must closely examine the
wording of the rhetorical question and context in which
it is used. For example, ‘‘[a] comment that the defendant
was without a reasonable explanation or had no reason-
able explanation to show why he was innocent is not
necessarily a comment that the jury would naturally
and necessarily interpret as related to the defendant’s
constitutional and statutory right to decline to testify.
A prosecutor also may comment on the failure of a
defendant to support his factual theories. . . . [Q]ues-
tions posed in closing arguments, even when answers
perhaps could be provided by nontestifying defendants,
may, depending on the circumstances, be permissible.
If a comment or question logically refers to the relative
merits or weaknesses of the case, rather than naturally
and necessarily to the defendant’s failure to testify, it
passes muster.’’ (Citation omitted; internal quotation
marks omitted.) State v. Joseph R. B., 173 Conn. App.
518, 536, 164 A.3d 718, cert. denied, 326 Conn. 923, 169
A.3d 234 (2017); see State v. Grant, 286 Conn. 499, 539,
944 A.2d 947 (‘‘the jury would not necessarily have
understood the prosecutor’s statement that there was
no evidence of an innocent explanation for the presence
of the defendant’s fingerprint on the tissue box or his
DNA on the handkerchief as a comment on the defen-
dant’s failure to testify’’ because ‘‘the prosecutor was
asking the jury to draw an inference from the defen-
dant’s statements, not from his refusal to testify’’), cert.
denied, 555 U.S. 916, 129 S. Ct. 271, 172 L. Ed. 2d 200(2008); State v. Walker, 206 Conn. 300, 309, 311, 537
A.2d 1021 (1988) (prosecutor’s comment ‘‘ ‘[d]id you
hear anybody get up and say it was him’ ’’ in reference
to witness who ‘‘defense counsel had stressed . . . had
committed the murder’’ was ‘‘not of such a character
that the jury would naturally and necessarily take it to
be a comment on the defendant’s failure to testify’’
(emphasis omitted)); State v. Joseph R. B., supra, 537
(‘‘The jury would not naturally and necessarily under-
stand the prosecutor’s remarks to suggest that testi-
mony from the defendant was the only means by which
his rhetorical questions could be answered. Rather, the
prosecutor’s comments were based on the evidence
presented and refer to a lack of explanation in the
evidence, other than guilt, for a range of behavior
. . . .’’ (Footnote omitted.)); State v. Jarrett, 82 Conn.
App. 489, 502–503, 845 A.2d 476 (prosecutor’s observa-
tion that ‘‘ ‘[t]here was no explanation why the defen-
dant had [the insurance policy that was seized during
the search of the apartment] with his other personal
documents’ ’’ was not ‘‘naturally and necessarily an
improper comment on the defendant’s failure to tes-
tify’’), cert. denied, 269 Conn. 911, 852 A.2d 741 (2004).
The prosecutor’s questions in the present case did
not ask for answers from the defendant or anyone else;
instead, they were employed as a rhetorical device ask-
ing ‘‘the jurors to refer to their knowledge of human
nature to ascertain an answer to the question.’’ State
v. Harris, 48 Conn. App. 717, 722, 711 A.2d 769, cert.
denied, 245 Conn. 922, 717 A.2d 238 (1998); see id.(prosecutor’s rhetorical question ‘‘ ‘[w]hy would you do
that’ ’’ was not improper because it did ‘‘not point to
the defendant’s decision not to testify’’); see also State
v. O’Brien-Veader, 318 Conn. 514, 547, 122 A.3d 555(2015) (‘‘[I]n deciding cases . . . [j]urors are not
expected to lay aside matters of common knowledge
or their own observations and experiences, but rather,
to apply them to the facts as presented to arrive at an
intelligent and correct conclusion. . . . Therefore, it is
entirely proper for counsel to appeal to [the jurors’]
common sense in closing remarks. . . . Our jurispru-
dence permits these statements from the prosecution,
if properly presented . . . .’’ (Internal quotation marks
omitted.)); State v. Magnotti, 198 Conn. 209, 220, 502
A.2d 404 (1985) (prosecutor’s rhetorical question asking
jurors ‘‘ ‘[w]hat about the [d]efense’s case?’ ’’ was ‘‘a
comment by the prosecutor on the overall quality of
the defendant’s evidence’’ and did not ‘‘[call] specific
attention to the failure of the accused to testify’’). The
prosecutor asked the jurors to consider, on the basis
of their common knowledge and experience, why V
would fabricate a story regarding the sexual assaults
and how such a story would result in the payment
of additional child support. Because the prosecutor’s
questions ‘‘pertain[ed] to whether the jury should have
believed the victim’s testimony . . . a reasonable jury
would have understood the prosecutor’s remarks as a
commentary on the victim’s veracity, not the defen-
dant’s silence.’’ State v. Ruffin, supra, 316 Conn. 31.
We therefore reject the defendant’s claim that the prose-
cutor’s rhetorical questions were improper.10
The next prosecutorial comment challenged by the
defendant causes us somewhat greater concern. The
defendant contends that the prosecutor violated his
fifth amendment right against self-incrimination by
informing the jury that ‘‘the true test . . . of a party’s
credibility is how they do on cross-examination, when
they’re questioned by the opposing party.’’ The defen-
dant argues that, by focusing on the credibility of par-
ties rather than witnesses, the prosecutor impermissi-
bly drew the jury’s attention to the fact that he did not
testify. We are troubled by the prosecutor’s remark,
given that the term ‘‘party’’ has ‘‘a technical legal mean-
ing, referring to those by or against whom a legal suit is
brought . . . the party plaintiff or defendant, whether
composed of one or more individuals and whether natu-
ral or legal persons.’’ (Internal quotation marks omit-
ted.) State v. Salmon, 250 Conn. 147, 154, 735 A.2d 333(1999). The parties in the present case are the state
and the defendant—neither of whom testified or was
subject to cross-examination. This isolated comment,
if viewed formalistically and devoid of context, could
be construed to mean that the defendant’s out-of-court
statements were less worthy of belief than V’s in-court
testimony because they could not be subjected to the
‘‘true test’’ of credibility commended by the prosecutor.
Our concerns are assuaged, however, upon consider-
ation of the context in which the prosecutor’s comment
was made. Although the prosecutor used the word
‘‘party’’ when emphasizing the efficacy of cross-exami-
nation as a tool to assess credibility, the context in
which his statement was made leaves no doubt that he
was asking the jury to consider the credibility of a
witness, and one witness in particular: V. Immediately
following the challenged statement, the prosecutor said:
‘‘Look at how [V] did [on cross-examination]. Defense
[counsel] asked her—or told her you were nine when
you told mom what happened, right, and she said no.
How old were you? She said I think I was twelve. You
look at her birthday, you look at the day of the report,
eleven years and seven months. Either she didn’t guess,
I think, she didn’t say for sure. Once again, question:
You had a great relationship with mom. Yes. She’s your
best friend. No. She didn’t go that far. No. You like
spending time with your mom. Yes. Back then, even
now. She had no problem correcting when she thought
things were not accurate, corrected either the defense
or the state.’’
The prosecutor’s introductory comment asking the
jury to focus on how a ‘‘party’’ handles cross-examina-
tion was poorly worded—the prosecutor should have
used the word ‘‘witness’’ rather than ‘‘party’’—but we
will not allow that misstatement to obscure the obvious
and intended meaning of his argument because he did
not attempt to contrast V’s performance on cross-exam-
ination (and by extension, her credibility) with the
defendant’s failure to testify. ‘‘When reviewing the pro-
priety of a prosecutor’s statements, we do not scrutinize
each individual comment in a vacuum but, rather,
review the comments complained of in the context of
the entire trial.’’ (Internal quotation marks omitted.)
State v. Felix R., 319 Conn. 1, 9, 124 A.3d 871 (2015).
In light of the prosecutor’s emphasis on the believability
of V’s testimony, her performance on the stand during
cross-examination, and the consistency of her testi-
mony with the evidence adduced at trial, we construe
the prosecutor’s statement to refer, albeit imprecisely,
to V’s credibility. See id., 13–14 (‘‘[B]ecause the prosecu-
tor’s comment that the victim ‘had’ to testify ‘because
of what that man said and did to her’ is ambiguous, we
read the remark to refer, albeit imprecisely, to the
state’s overarching theme: the victim had no motive to
lie and the defendant did. The remarks, therefore, were
not improper.’’). Because we cannot say that the prose-
cutor’s statement was ‘‘manifestly intended to be, or
was . . . of such a character that the jury would natu-
rally and necessarily take it to be a comment on the
failure of the accused to testify’’; (emphasis omitted;
internal quotation marks omitted) State v. A. M., supra,
324 Conn. 201; we conclude that the defendant’s fifth
amendment right against self-incrimination was not vio-
lated.
B
The defendant also claims that the prosecutor made
various remarks during closing argument and rebuttal
that deprived him of his right to a fair trial in violation
of the due process clause of the fourteenth amendment
to the United States constitution.11 Specifically, the
defendant argues that the prosecutor impermissibly
expressed his personal opinion regarding the evidence,
the credibility of V, and the defendant’s guilt. The defen-
dant further contends that the prosecutor improperly
relied on facts not in evidence when he argued on multi-
ple occasions that the defendant ‘‘failed to disclose until
his second police interview that he was ever alone with
[V], despite the only evidence on that point indicating
that he disclosed this information during the first police
interview.’’
It is well established that a ‘‘prosecutor has a height-
ened duty to avoid argument that strays from the evi-
dence or diverts the jury’s attention from the facts of
the case. [As we noted previously, 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 impartial justice for the guilty as
much as for the innocent. . . . By reason of his office,
he usually exercises great influence upon 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 no conviction through the
aid of passion, prejudice, or resentment. If the accused
[is] guilty, he should [nonetheless] be convicted only
after a fair trial, conducted strictly according to the
sound and [well established] rules which the laws pre-
scribe. While the privilege of counsel in addressing the
jury should not be too closely narrowed or unduly ham-
pered, 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 [that] the jury
ha[s] no right to consider. . . . [W]hile [the prosecutor]
may strike hard blows, he is not at liberty to strike foul
ones. It is as much his duty to refrain from improper
methods calculated to produce a wrongful conviction
as it is to use every legitimate means to bring about a
just one. . . .
‘‘Furthermore, the prosecutor may not express his
own opinion, directly or indirectly, as to the credibility
of the witnesses. . . . Nor should a prosecutor express
his opinion, directly or indirectly, as to the guilt of the
defendant. . . . Such expressions of personal opinion
are a form of unsworn and unchecked testimony, and
are particularly difficult for the jury to ignore because
of the prosecutor’s special position. . . . Moreover,
because the jury is aware that the prosecutor has pre-
pared and presented the case and consequently, may
have access to matters not in evidence . . . it is likely
to infer that such matters precipitated the personal
opinions.’’ (Internal quotation marks omitted.) State v.
Andrews, 313 Conn. 266, 293–94, 96 A.3d 1199 (2014).
The defendant contends that the prosecutor imper-
missibly expressed his personal opinion on the merits
of the case when, at the end of closing argument, he
stated: ‘‘I’d argue, if you look at the evidence logically,
if you look at the evidence impartially, the only conclu-
sion is that [V] was testifying credibly and that she did
prove the case beyond a reasonable doubt.’’ Likewise,
the defendant challenges the prosecutor’s summary
statement at the end of rebuttal: ‘‘And I’d ask you—
and I tell you the reason why is because, if you listen
to the facts of the case we heard, that was presented,
that was testified on, the only result, when you look at
the credibility, is [to] find the defendant guilty.’’
The prosecutor’s remarks were not improper expres-
sions of personal opinion. Rather, we take them to be
legitimate commentary on the evidence adduced at trial
and the reasonable inferences supported by the evi-
dence. ‘‘It is not improper for the prosecutor to com-
ment [on] the evidence presented at trial and to argue
the inferences that the [jury] might draw therefrom
. . . . We must give the jury the credit of being able
to differentiate between argument on the evidence and
attempts to persuade [it] to draw inferences in the
state’s favor, on one hand, and improper unsworn testi-
mony, with the suggestion of secret knowledge, on the
other hand. The [prosecutor] should not be put in the
rhetorical straitjacket of always using the passive voice,
or continually emphasizing that he is simply saying I
submit to you that this is what the evidence shows, or
the like.’’ (Internal quotation marks omitted.) State v.
Long, 293 Conn. 31, 38–39, 975 A.2d 660 (2009).
When viewed in the context of the prosecutor’s entire
closing argument and rebuttal, it is apparent that the
prosecutor was urging the jury to infer, on the basis
of the evidence presented at trial—including, but not
limited to, V’s testimony regarding the sexual assaults,
the lack of any reliable evidence indicating that she had
a motive to lie, and the defendant’s contradictory out-
of-court statements—that V was ‘‘testifying credibly’’
and ‘‘the defendant was guilty’’ of the crimes charged.
Because the prosecutor’s ‘‘remarks underscored an
inference that the jury could have drawn entirely on
its own, based on the evidence presented’’; State v.
Stevenson, 269 Conn. 563, 585, 849 A.2d 626 (2004);
we perceive no impropriety. See id., 584 (prosecutor’s
‘‘remark during closing argument describing the defen-
dant’s explanation as to how he obtained money to buy
drugs as ‘totally unbelievable’ ’’ was not expression of
personal opinion but, rather, ‘‘a comment on the evi-
dence presented at trial, and it posited a reasonable
inference that the jury itself could have drawn without
access to the [prosecutor’s] personal knowledge of the
case’’); see also State v. Ciullo, supra, 314 Conn. 42(prosecutor’s statements did ‘‘not purport to convey
[his] personal opinion of the credibility of the wit-
nesses; instead, the prosecutor’s statements, when
placed in the context in which they were made, [were]
reasonable inferences the jury could have drawn from
the evidence adduced at trial’’ (emphasis in original));
State v. Long, supra, 293 Conn. 41 (prosecutor’s remarks
regarding victim’s credibility were not improper expres-
sions of personal opinion but, rather, ‘‘were intended
to appeal to the jurors’ common sense and to elicit a
particular conclusion about the veracity of [the victim’s]
testimony by inviting the jurors to draw reasonable
inferences from the evidence presented to them’’); State
v. Warholic, 278 Conn. 354, 370 n.8, 897 A.2d 569 (2006)
(prosecutor’s comment that ‘‘ ‘[t]here’s only one expla-
nation in this case that makes sense and as difficult as
it is to understand that it happens, it’s that the defendant
did exactly what he’s accused of’ ’’ was not personal
expression of opinion but, rather, ‘‘[a] rhetorical com-
ment’’ on evidence adduced at trial).
Lastly, we address the defendant’s claim that the
prosecutor improperly relied on facts not in evidence
when he stated on multiple occasions that the defendant
failed to disclose to the police until his second interview
that he was home alone with V after school. The follow-
ing facts are relevant to our resolution of this claim. At
trial, Detective Morini testified that she and a colleague
‘‘interviewed the defendant regarding [V’s] allegations’’
of sexual assault ‘‘[t]wo different times.’’ The first inter-
view occurred on December 10, 2015, at which time
the defendant denied V’s allegations. At a certain point
during trial, the following colloquy occurred between
the prosecutor and Morini:
‘‘[The Prosecutor]: Now, did you ask him whether he
would ever have time alone with [V]?
‘‘[Morini]: Yes, we did.
‘‘[The Prosecutor]: And what did he tell you?
‘‘[Morini]: He said that at one point he did have time
alone with her, and another time he said that he had
both children there.
‘‘[The Prosecutor]: So he—did he tell you at one point
he would . . . watch [V] and her sister?
‘‘[Morini]: Yes.
‘‘[The Prosecutor]: So he told you at first he would
watch them together?
‘‘[Morini]: Yes.
‘‘[The Prosecutor]: And then he told you that’s until
[V’s] mother got home from work?
‘‘[Morini]: That’s correct.’’
Morini also testified that the defendant’s hands were
shaking during the interview and that, ‘‘[a]t that point,’’
the defendant informed Morini that ‘‘he was born like
that and that he had depression.’’ The prosecutor asked
Morini, ‘‘[n]ow, [that was] your first interview with
him,’’ to which Morini responded ‘‘[t]hat was our first
interview. Yes.’’ Morini then described the second inter-
view, which occurred on December 22, 2015, explaining
that she inquired again about the defendant’s shaking
hands, and, this time, the defendant ‘‘said he believed
it was Parkinson’s disease.’’
The prosecutor highlighted Morini’s testimony during
closing argument, pointing out that, when the defendant
‘‘[met] with DCF . . . he says he watched [V] after
school, and he would make sure she took her shower
and did her homework. Then he meets with the police,
and he says he watched [V] and her sister after school
when he first meets with them. Why when he meets
with the police does [he] say I was not alone with [V]?
Then they interview him a second time. At that point,
he acknowledges the fact he was alone with [V] when
watching her.’’ The prosecutor later commented that
the defendant ‘‘knew what he was saying when he said
I watched both kids, oh, wait, I was alone with her. So
he goes back for the second interview twelve days later
with the police. . . . And now he admits he in fact was
alone with [V].’’ In contrast, in his interview with DCF,
the defendant ‘‘always admit[ted] he was alone with
[V].’’ The prosecutor encouraged the jury to ‘‘look at
the defendant’s statements’’ and argued that, ‘‘not only
[were they] contradicted by [V], by [V’s] mother, and
her aunt, [they were] contradicted by [the defendant]
himself: I’m not alone with her; I am alone with her
. . . .’’
In response, defense counsel argued that there were
no discrepancies in the defendant’s prior out-of-court
statements to DCF and the police. Defense counsel
pointed out that ‘‘[the defendant] says he watches both
kids, that’s true. But he also says he watches [V]. He
already said that to DCF: I watch [V] alone. He’s not
hiding anything here.’’
During rebuttal, the prosecutor disagreed with
defense counsel’s characterization of the evidence,
arguing that the defendant ‘‘admit[ted] he took [V] and
watched her off the bus in the second interview with
[the] police. The first interview he said he watched her
with her sister. Once again, ask why you would not
want to acknowledge to the police that you’re alone
with your daughter if there was no reason that you
would be concerned about being alone with your daugh-
ter.’’ The prosecutor later remarked: ‘‘And when you
hear dad didn’t hide he was alone with [V] in that first
interview, I disagree. And you listened to it, but my
recollection of the testimony is when he first met with
the police, he said he watched both of them. Then when
they reinterview[ed] him, oh, yeah, I actually was alone
with her.’’ The prosecutor continued: ‘‘He tells the
police in the first meeting he’s watching two kids. Why
would you be concerned about admitting you’re alone
with [V]?’’
The record reflects that the defendant made contra-
dictory statements to the police regarding whether he
was home alone with V. Morini testified that, at first,
the defendant told her that he watched V and her sister
together, but, at ‘‘one point,’’ the defendant disclosed
that he was alone with V. The parties dispute the ‘‘point’’
at which the defendant’s subsequent disclosure
occurred—did the defendant admit to Morini during his
first interview that he was home alone with V or did
he wait until his second interview? Morini’s testimony
was ambiguous on this subject and was susceptible of
more than one reasonable interpretation. It would have
been reasonable and logical for the jury to infer that
the defendant’s disclosure that he spent time alone with
V occurred during the first interview, given Morini’s
later testimony that ‘‘[t]hat was our first interview.’’ It
also would have been reasonable, albeit perhaps less
logical, for the jury to infer that the defendant’s disclo-
sure occurred during the second interview and that
Morini’s reference to ‘‘our first interview’’ pertained
solely to the defendant’s contradictory explanations for
his shaking hands.
‘‘[A] prosecutor may properly comment on the credi-
bility of a witness where . . . the comment reflects
reasonable inferences from the evidence adduced at
trial.’’ (Internal quotation marks omitted.) State v. Lus-
ter, 279 Conn. 414, 438, 902 A.2d 636 (2006). The prose-
cutor’s remarks regarding the timing of the defendant’s
disclosure that he was home alone with V were predi-
cated on Morini’s testimony and the reasonable infer-
ences that could be drawn therefrom. Indeed, the prose-
cutor expressly informed the jury that he ‘‘disagreed’’
with defense counsel’s characterization of the timing
of the defendant’s disclosure based on his ‘‘recollection
of the testimony,’’ to which the jury also had ‘‘listened
. . . .’’ Furthermore, defense counsel did not object to
the prosecutor’s characterization of Morini’s testimony,
a fact that suggests that he did not perceive the prosecu-
tor’s remarks to be improper. See, e.g., State v. Medrano,
308 Conn. 604, 612, 65 A.3d 503 (2013) (‘‘we continue
to adhere to the well established maxim that defense
counsel’s failure to object to the prosecutor’s argument
when it was made suggests that defense counsel did
not believe that it was [improper] in light of the record
of the case at the time’’ (internal quotation marks omit-
ted)).
In light of the ambiguity of the testimony, it would
have been preferable for the prosecutor to phrase his
argument differently and to say to the jury, for example,
‘‘I submit to you that you reasonably may infer, on the
basis of Morini’s testimony, that the defendant did not
inform the police until his second interview that he was
home alone with V.’’ We are mindful, however, that,
‘‘[w]hen making closing arguments to the jury . . .
[counsel] must be allowed a generous latitude in argu-
ment, as the limits of legitimate argument and fair com-
ment cannot be determined precisely by rule and line
. . . .’’ (Internal quotation marks omitted.) State v.
Ciullo, supra, 314 Conn. 37. Having reviewed the entire
record, it is apparent to us that the prosecutor’s
remarks, although not phrased in the most artful man-
ner, ‘‘invite[d] the jury to draw reasonable inferences
from the evidence’’ and did not ‘‘invite sheer speculation
unconnected to [the] evidence.’’ State v. Singh, 259
Conn. 693, 718, 793 A.2d 226 (2002). We therefore con-
clude that the prosecutor’s comments were not
improper. See, e.g., State v. Stevenson, supra, 269 Conn.
586–88 (prosecutor’s statement that defendant cooper-
ated with police because ‘‘ ‘[h]e figured he was the num-
ber one suspect anyway . . . and maybe he would get
a better deal in court’ ’’ was not improper because it
‘‘was based on evidence in the record, and did not
amount to mere speculation and baseless conjecture’’);
State v. Ceballos, 266 Conn. 364, 400–401, 832 A.2d 14(2003) (‘‘[w]e conclude that the state’s attorney’s com-
ment about [the victim’s] having suffered from delayed
disclosure syndrome was not improper because it was
an argument in support of an inference that could be
drawn from evidence in the record’’).
The judgment is reversed only as to the sentence
imposed on the four counts of sexual assault in the
first degree, the sentence is vacated, and the case is
remanded for resentencing; the judgment is affirmed
in all other respects.
In this opinion the other justices 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 identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
** March 19, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
General Statutes (Rev. to 2013) § 53a-70 provides in relevant part: ‘‘(a)
A person is guilty of sexual assault in the first degree when such person
. . . (2) engages in sexual intercourse with another person and such other
person is under thirteen years of age and the actor is more than two years
older than such person . . . .
‘‘(b) . . . (2) Sexual assault in the first degree is a class A felony if . . .
the offense is a violation of subdivision (2) of subsection (a) of this section.
Any person found guilty under said subdivision . . . (2) shall be sentenced
to a term of imprisonment of which ten years of the sentence imposed may
not be suspended or reduced by the court if the victim is under ten years
of age or of which five years of the sentence imposed may not be suspended
or reduced by the court if the victim is under sixteen years of age.
‘‘(3) Any person found guilty under this section shall be sentenced to a
term of imprisonment and a period of special parole pursuant to subsection
(b) of section 53a-28 which together constitute a sentence of at least ten
years.’’
Hereinafter, unless otherwise noted, all references to § 53a-70 in this
opinion are to the 2013 revision of the statute.
2
General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who
(1) wilfully or unlawfully causes or permits any child under the age of
sixteen years to be placed in such a situation that the life or limb of such
child is endangered, the health of such child is likely to be injured or the
morals of such child are likely to be impaired, or does any act likely to
impair the health or morals of any such child, or (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 (A) a
class C felony for a violation of subdivision (1) . . . of this subsection, and
(B) a class B felony for a violation of subdivision (2) of this subsection,
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.’’
We note that § 53a-21 was amended by No. 13-297, § 1, of the 2013 Public
Acts and No. 15-205, § 11, of the 2015 Public Acts. Those amendments made
certain changes to the statute that are not relevant to this appeal. For
purposes of clarity, we refer to the current revision of the statute.
3
General Statutes § 53a-29 (a) provides: ‘‘The court may sentence a person
to a period of probation upon conviction of any crime, other than a class
A felony, if it is of the opinion that: (1) Present or extended institutional
confinement of the defendant is not necessary for the protection of the
public; (2) the defendant is in need of guidance, training or assistance which,
in the defendant’s case, can be effectively administered through probation
supervision; and (3) such disposition is not inconsistent with the ends of jus-
tice.’’
Although § 53a-29 has been amended several times since the defendant’s
commission of the crimes that formed the basis of his conviction, those
amendments have no bearing on the merits of this appeal. In the interest
of simplicity, we refer to the current revision of § 53a-29 throughout this opin-
ion.
4
In its appellate brief, the state conceded that the defendant’s claim was
reviewable for the first time on appeal pursuant to State v. Victor O., supra,301 Conn. 163. Following the completion of briefing, the state submitted a
notice of supplemental authority; see Practice Book § 67-10; contending that
Victor O. is inconsistent with Cobham v. Commissioner of Correction, 258
Conn. 30, 38 n.13, 779 A.2d 80 (2001). Compare State v. Victor O., supra,301 Conn. 193 n.12 (‘‘this court is authorized to correct an illegal sentence
at any time pursuant to Practice Book § 43-22’’), with Cobham v. Commis-
sioner of Correction, supra, 38 n.13 (stating that only trial court can correct
illegal sentence at any time under Practice Book § 43-22). Nonetheless, the
state argued in its notice of supplemental authority that, ‘‘[p]ursuant to State
v. Guckian, 27 Conn. App. 225, 246, 605 A.2d 874 (1992) [(overruled in part
on other grounds by Cobham v. Commissioner of Correction, 258 Conn.
30, 779 A.2d 80 (2001)), aff’d, 226 Conn. 191, 627 A.2d 407 (1993)], illegal
sentence claims raised on direct appeal are reviewed for plain error.’’ But
see State v. Jin, 179 Conn. App. 185, 195–96, 179 A.3d 266 (2018) (relying
on Cobham and declining to review under plain error doctrine illegal sen-
tence claim raised for first time on appeal); State v. Crump, 145 Conn. App.
749, 766, 75 A.3d 758 (same), cert. denied, 310 Conn. 947, 80 A.3d 906 (2013).
The state takes the position that Cobham and its progeny do ‘‘not change
the state’s concession in this case that the sentences that the defendant
received for each of the four sexual assault convictions are illegal.’’ In light
of the state’s concession, we need not resolve the alleged inconsistency
between Victor O. and Cobham or determine whether the defendant’s claim
is reviewable for the first time on appeal under Practice Book § 43-22 or
the plain error doctrine. At the very least, it is clear to us that Victor O.
stands for the proposition that a reviewing court may address unpreserved
claims of sentencing error when the state concedes on appeal that the
sentence imposed by the trial court is illegal and that the defendant is
entitled to sentencing relief.
5
In 2015, § 53a-70 (b) (3) was amended to provide for the imposition of
a period of probation for convictions of sexual assault in the first degree
in violation of § 53a-70 (b) (2), notwithstanding the fact that it is a class A
felony. See Public Acts 2015, No. 15-211, § 16, codified at General Statutes
(Supp. 2016) § 53a-70 (b) (3) (‘‘Any person found guilty under this section
shall be sentenced to a term of imprisonment of at least ten years, a portion
of which may be suspended, except as provided in subdivisions (1) and (2)
of this subsection, or a term of imprisonment and a period of special parole
pursuant to subsection (b) of section 53a-28 which together constitute a
sentence of at least ten years. Notwithstanding the provisions of subsection
(a) of section 53a-29 and except as otherwise provided in this subsection,
a court may suspend a portion of a sentence imposed under this subsection
and impose a period of supervised probation pursuant to subsection (f)
of section 53a-29.’’ (Emphasis added.)). It is undisputed that this statutory
amendment is inapplicable to the present case because the defendant’s
criminal conduct predated its enactment. See In re Daniel H., 237 Conn.
364, 377, 678 A.2d 462 (1996) (‘‘[i]n criminal cases, to determine whether a
change in the law applies to a defendant, we generally have applied the law
in existence on the date of the offense, regardless of its procedural or
substantive nature’’); see also State v. Kalil, 314 Conn. 529, 558, 107 A.3d
343 (2014) (holding that statutory amendments reducing penalty for criminal
offenses do not apply retroactively in ‘‘the absence of any express language
in the provision referring to its retroactive application’’).
6
The defendant did not preserve his prosecutorial impropriety claims in
the trial court, but, ‘‘under settled law, a defendant who fails to preserve
claims of prosecutorial [impropriety] need not seek to prevail under the
specific requirements of State v. Golding, 213 Conn. 233, 239–40, 567 A.2d
823 (1989) [as modified by In re Yasiel, 317 Conn. 773, 781, 120 A.3d 1188(2015)], and, similarly, it is unnecessary for a reviewing court to apply the
four-pronged Golding test.’’ (Internal quotation marks omitted.). State v.
Payne, 303 Conn. 538, 560, 34 A.3d 370 (2012).
7
The fifth amendment to the United States constitution, which is made
applicable to the states through the fourteenth amendment, provides in
relevant part: ‘‘No person . . . shall be compelled in any criminal case to
be a witness against himself . . . .’’ U.S. Const., amend. V; see also Griffin
v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965) (‘‘the
[f]ifth [a]mendment, in its direct application to the [f]ederal [g]overnment,
and in its bearing on the [s]tates by reason of the [f]ourteenth [a]mendment,
forbids . . . comment by the prosecution on the accused’s silence’’).
8
‘‘[General Statutes §] 54-84 (a) also prohibits a prosecutor from comment-
ing on the ‘neglect or refusal of an accused party to testify . . . .’ ’’ State
v. A. M., supra, 324 Conn. 200 n.5. We historically have ‘‘treated the protec-
tions of the statute as being synonymous with those of the fifth amendment.’’
Id., 201 n.5.
9
Nothing in State v. A. M., supra, 324 Conn. 190, is inconsistent with our
conclusion. In A. M., the prosecutor ‘‘directly and unambiguously called the
jury’s attention to the defendant’s decision not to testify’’ in violation of the
fifth amendment by explicitly commenting on the defendant’s failure to take
the stand. Id., 201. The state claimed that the constitutional violation was
harmless beyond a reasonable doubt, arguing in relevant part that the context
of the prosecutor’s statements ‘‘diluted any impropriety and demonstrated
a purpose unrelated to the impropriety, namely, to focus on the statements
given by the defendant to the police.’’ Id., 206. We rejected this claim,
reasoning that, ‘‘[i]n spite of the prosecutor’s comments asking the jurors
to judge the defendant’s credibility by the statements he gave to the police,
the jury was instructed by the judge that credibility related to witnesses
who testified. Thus, the prosecutor, through her statements on credibility,
was reminding the jurors again that the defendant did not testify.’’ Id., 206–
207.
Contrary to the defendant’s assertion, A. M. does not stand for the proposi-
tion that a prosecutor’s remarks challenging the credibility or believability
of a defendant’s out-of-court statements, which have been admitted into
evidence for the jury’s full consideration, are improper. Instead, in A. M.,
we held simply that the prosecutor’s allegedly valid purpose in focusing
on the defendant’s out-of-court statements combined with the trial court’s
instruction on credibility were insufficient to render harmless beyond a
reasonable doubt the prosecutor’s clear violation of the defendant’s fifth
amendment rights. Accordingly, the defendant’s reliance on A. M. is mis-
placed.
10
In arriving at this conclusion, we construe the prosecutor’s statement
‘‘[t]hat was never explained by him, how he thought that [V’s allegation]
was being used . . . [because] they wanted more child support’’ to refer
to the defendant’s failure to offer an explanation to the police at the time his
out-of-court statement was made. We consider this to be the most reasonable
interpretation of the comments in the overall context of the facts as mar-
shaled by the prosecutor in his closing argument. See State v. Elmer G.,
333 Conn. 176, 194–95, 214 A.3d 852 (2019) (‘‘[i]f a prosecutor’s remark is
ambiguous, this court should not lightly infer that it is improper’’ (internal
quotation marks omitted)); State v. Rivera, supra, 169 Conn. App. 353–54
(prosecutor’s remark ‘‘ ‘[d]oes somebody have a stake when they sit in that
chair and testify for you’ ’’ was ambiguous and, therefore, could be construed
to refer to ‘‘the stake that the defendant specifically has when he sits in a
chair at the police station and gives his version of events,’’ rather than to
defendant’s failure to testify).
11
The fourteenth amendment to the United States constitution provides
in relevant part: ‘‘No State shall . . . deprive any person of life, liberty or
property, without due process of law . . . .’’ U.S. Const., amend. XIV.