State v. Michael T. ( 2021 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE OF CONNECTICUT v. MICHAEL T.*
(SC 20230)
McDonald, D’Auria, Mullins, Ecker, Keller and Vertefeuille, Js.
Syllabus
Pursuant to statute (§ 54-84 (b)), ‘‘[u]nless the accused requests otherwise,
the court shall instruct the jur[ors] that they may draw no unfavorable
inferences from the accused’s failure to testify.’’
Convicted of multiple counts of first degree sexual assault and risk of injury
to a child in connection with the sexual abuse of the victim, the daughter
of his girlfriend, the defendant appealed to this court. The victim, who
was eleven years old at the time of trial, was reluctant to testify about
the sexual assaults. On direct examination, the victim indicated that the
defendant had hurt her ‘‘private’’ with ‘‘[h]is private.’’ Shortly thereafter,
the prosecutor reworded the victim’s testimony and referred to the
victim’s testimony that the defendant had ‘‘put his private in [the victim’s]
private.’’ In response to a question about whether anything had come
out of either her private or the defendant’s private, the victim responded
that blood had come out of ‘‘[h]is’’ private, but the prosecutor subse-
quently referred to the blood that came out of the victim’s, not the
defendant’s, private parts. The defendant did not testify at trial, and
defense counsel requested that the trial court instruct the jury that the
defendant ‘‘elected not to testify’’ rather than use the specific language
in § 54-84 (b) regarding his ‘‘failure to testify,’’ which counsel claimed
has a negative connotation and suggested that the defendant had an
obligation that he did not fulfill. The trial court denied counsel’s request,
indicating that its failure to use the statutory language might constitute
plain error. The trial court subsequently instructed the jury that it could
draw no unfavorable inference from the defendant’s failure to testify.
On appeal, the defendant claimed that he was denied his due process
right to a fair trial by virtue of certain improprieties the prosecutor
made while questioning the victim and during closing and rebuttal argu-
ments. The defendant also challenged the trial court’s jury instruction
regarding his ‘‘failure’’ to testify. Held:
1. There was no merit to the defendant’s claim that the prosecutor improperly
relied on facts not in evidence by referring to the victim’s testimony
that the defendant had ‘‘put his private in [the victim’s] private’’ and
that blood had come out of her private: although it would have been
preferable for the prosecutor to ask the victim clarifying questions rather
than rephrase her words to correct the victim’s plainly mistaken testi-
mony, the prosecutor’s statement that the defendant penetrated the
victim was a reasonable and necessary inference drawn from the victim’s
testimony that the defendant had hurt her private with his private, the
victim expressly testified on redirect examination that the defendant’s
private went into her private, and defense counsel did not object to the
prosecutor’s questions rephrasing the victim’s testimony or contest the
ample evidence that the victim had suffered a traumatic penetrating
injury, contending only that the defendant was not the perpetrator;
moreover, the salient point of the victim’s testimony was the presence,
not the source, of blood in her genital area after the assault, and the
jury could reasonably infer that, at her young age, the victim simply did
not know the source of the blood; furthermore, in light of the victim’s
age and reluctance to testify, it was within the trial court’s discretion
to allow the use of leading questions during the prosecutor’s examination
of the victim, and the prosecutor’s remarks rephrasing the victim’s
testimony were not significantly more suggestive of independent knowl-
edge of facts than a leading question would have been or deliberately
intended to distort the victim’s testimony or to suggest that the prosecu-
tor had knowledge of facts that could not be presented to the jury.
2. The defendant could not prevail on his claim that the prosecutor engaged
in certain improprieties during closing and rebuttal arguments: the prose-
cutor did not improperly argue facts not in evidence or appeal to the
jurors’ emotions by thanking the jurors for paying attention to the evi-
dence, apologizing to them for any anxiety the evidence, particularly
certain photographs, had caused, and remarking on the difficulty of
viewing evidence and hearing testimony of such a nature, as those
statements were based on facts in evidence and the reasonable infer-
ences that could be drawn therefrom, defense counsel did not object to
those remarks and thanked the jurors during his own closing argument,
acknowledging that the case was difficult, emotionally compelling, and
‘‘disgusting,’’ and the prosecutor’s remark that the state had ‘‘tried to
keep it to a minimum’’ was, at most, a comment on the state’s effort
not to present cumulative evidence rather than a suggestion that the
state possessed additional photographic evidence that would strengthen
its case; moreover, the prosecutor did not improperly appeal to the
jurors’ emotions or vouch for the victim’s credibility when she asked
whether the victim looked like the type of child who would have made
up the sexual assault, by characterizing the victim as extremely shy and
passive, and by noting that the victim had been tearful and embarrassed
during a video-recorded forensic interview, as those remarks were in
response to an argument initially raised by the defense, namely, that
the victim had lied about the sexual assault allegations because she did
not want to live with the defendant, and simply attempted to rebut that
argument on the basis of the evidence before the jury of the victim’s
appearance and demeanor; furthermore, although it was a closer ques-
tion as to whether the prosecutor improperly vouched for the victim’s
credibility by asking if her emotions were real, answering that question
in the affirmative, and stating that such emotion is hard to fake, in
context, those remarks did not improperly induce the jurors to trust
the state’s judgment in lieu of their own views of the evidence but,
rather, referred to evidence that had been presented at trial and appealed
to the jurors’ common sense and life experiences; furthermore, the
prosecutor’s comments concerning the victim’s injuries to her genital
area, namely, that she had been ‘‘ripped’’ and torn without the benefit
of pain medication, although approaching an impermissible plea for
sympathy, did not materially mischaracterize the testimony of the pedia-
trician who had examined the victim or exaggerate the severity of the
victim’s suffering and, therefore, were not improper.
3. The defendant could not prevail on his claim that the trial court improperly
denied defense counsel’s request that the court deviate from the language
of § 54-84 (b) and his alternative claim that § 54-84 (b) is unconstitutional
insofar as it violates the constitutional right to remain silent by referring
to the defendant’s ‘‘failure’’ to testify:
a. The trial court did not violate § 54-84 (b) by denying defense counsel’s
request that it instruct the jury that it could draw no adverse inference
from the fact that the defendant elected not to testify: contrary to the
defendant’s claim that the phrase ‘‘[u]nless the accused requests other-
wise,’’ as used in § 54-84 (b), required the trial court to give the requested
instruction, a review of relevant case law, including State v. Casanova
(255 Conn. 581), revealed that, although a trial court may grant a defen-
dant’s request for an instruction that deviates from the specific wording
of § 54-84 (b) if the instruction would not materially alter the substantive
meaning of the statute, it is not required to grant such a request but may
give any instruction that accurately states the law, and, in the absence
of a request by a defendant that the court give no instruction concerning
the fact that he did not testify, the court’s failure to give an instruction
pursuant to § 54-84 (b) constitutes plain error; accordingly, although the
trial court incorrectly determined that any deviation from the specific
wording of § 54-84 (b) would be plain error, and the trial court could
have given the instruction that defense counsel requested, as it would not
have mischaracterized the defendant’s conduct or altered the substantive
meaning of the statute, it was not improper for the trial court to instruct
the jury using the statute’s specific wording; moreover, the defendant’s
claim that Casanova should be overruled was unreviewable, as it was
inadequately briefed.
b. This court rejected the defendant’s claim that § 54-84 (b) was unconsti-
tutional to the extent that it authorized the trial court to refer to the
defendant’s ‘‘failure’’ to testify; although this court agreed with the defen-
dant that more neutral language is preferable to the use of the word
‘‘failure,’’ which has a relatively negative connotation and tends to con-
firm the jurors’ natural assumption that an innocent person would take
the stand to respond to accusations against him, there is no completely
neutral way to characterize the fact that the defendant did not take the
stand, and the semantic difference between the phrase ‘‘failure to testify’’
and other wordings was too slight to have constitutional significance in
the overall context of the instruction in the present case.
(One justice concurring separately)
Argued October 14, 2020—officially released April 22, 2021**
Procedural History
Substitute information charging the defendant with
three counts each of the crimes of sexual assault in the
first degree and risk of injury to a child, brought to the
Superior Court in the judicial district of New Haven and
tried to the jury before Blue, J.; verdict and judgment
of guilty, from which the defendant appealed to this
court. Affirmed.
Julia K. Conlin, assigned counsel, with whom was
Emily Graner Sexton, assigned counsel, for the appel-
lant (defendant).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Patrick J. Griffin, state’s
attorney, and Maxine Wilensky and Lisa D’Angelo,
senior assistant state’s attorneys, for the appellee
(state).
Opinion
VERTEFEUILLE, J. A jury found the defendant,
Michael T., guilty of three counts of first degree sexual
assault in violation of General Statutes § 53a-70 (a) (1)
and three counts of risk of injury to a child in violation of
General Statutes § 53-21 (a) (2). The trial court rendered
judgment in accordance with the verdict and sentenced
the defendant to a total effective sentence of sixty years
imprisonment. The defendant appeals directly to this
court pursuant to General Statutes § 51-199 (b) (3),
claiming that the prosecutor engaged in prosecutorial
impropriety, thereby depriving him of his constitutional
due process right to a fair trial, by (1) assuming facts
not in evidence while questioning the victim, and (2)
during closing argument, assuming facts not in evi-
dence, vouching for the victim’s credibility and appeal-
ing to the jurors’ emotions. The defendant further
claims that the trial court violated General Statutes
§ 54-84 (b)1 and infringed on his constitutional right to
remain silent when it denied his request to instruct the
jury that he elected not to testify and, instead, referred
to his failure to testify. We affirm the judgment of con-
viction.
The record reveals the following facts, which the jury
reasonably could have found, and procedural history.
The victim was born in December, 2006, and was eleven
years old at the time of trial. In 2014 and 2015, when
the victim was seven and eight years old, respectively,
she lived on Orchard Street in New Haven with her biolog-
ical mother, her four younger sisters and the defendant.
The defendant was the boyfriend of the victim’s mother,
and the victim referred to him as her ‘‘stepfather.’’ On
a number of occasions during that period, the defendant
called the victim into his bedroom, undressed her,2 lay
her on his bed and penetrated her with his penis vagi-
nally, orally and anally. The defendant told the victim
not to tell anyone about the assaults and threatened to
kill her if she disobeyed him.
In August, 2015, the victim and her sisters were
removed from the Orchard Street residence as the result
of an investigation by the Department of Children and
Families (department) that was unrelated to the sexual
assaults of the victim. The victim and one of her sisters
were placed in June Turpin’s licensed foster home. After
they had been there for several days, Turpin found in
their bedroom a pair of the victim’s underwear with a
clean sanitary napkin stuck to it and another pair of
underwear covered in dried blood. Turpin called Quen-
tin Scott, an investigative social worker for the depart-
ment, who referred Turpin to Cherise Rowan, a
physician at the Fair Haven Community Health Center.
Rowan examined the victim on August 27, 2015. The
victim denied that she was still bleeding but nodded
her head when Rowan asked her if the defendant had
done anything to ‘‘her private area.’’ Rowan determined
that the victim was prepubertal and that menstruation
would not have been possible.
The day after Rowan’s examination of the victim,
Monica Vidro, a forensic interviewer at the Yale Child
Abuse Clinic (clinic), conducted a forensic interview
of the victim. During the interview, the victim reported
that the defendant had assaulted her vaginally, orally
and anally. The victim was extremely reluctant to speak
to Vidro during the interview; her speech was frequently
inaudible, and she wept almost continuously.
Rebecca Moles, a child abuse pediatrician with the
clinic, examined the victim immediately after the foren-
sic interview. Moles determined that a portion of the
victim’s hymen was missing as the result of a tearing
injury to the adjacent skin and mucosa,3 resulting in a
purplish discoloration of the area. The injury, which
Moles likened to ‘‘an episiotomy4 or [the] tearing that
can happen with childbirth,’’ was severe and would
have caused pain to the victim. (Footnote added.) In
addition, because that area of the body is highly vascu-
lar, i.e., permeated by blood vessels, the injury would
have caused bleeding. Moles concluded that the victim’s
injury was diagnostic of a prior penetrating trauma.
Moles recorded her examination of the victim using a
video colposcope, and a still image of the victim’s injury
taken from the video recording was presented to the
jury as an exhibit. Moles again examined the victim two
months after her initial examination to assess whether
the injury was healing, and a photograph of the injury
that she took during that examination was also pre-
sented to the jury.
The defendant was charged in a six count information
with (1) compelling the victim to engage in vaginal/
penile intercourse by the use of force in violation of
§ 53a-70 (a) (1), (2) having contact with the victim’s
genital area in a sexual and indecent manner likely to
impair her health or morals in violation of § 53-21 (a)
(2), (3) compelling the victim to engage in fellatio by
the use of force in violation of § 53a-70 (a) (1), (4)
causing the victim to have contact with his genital area
in a sexual and indecent manner likely to impair her
health or morals in violation of § 53-21 (a) (2), (5) com-
pelling the victim to engage in anal intercourse by the
use of force in violation of § 53a-70 (a) (1), and (6)
having contact with the victim’s anus in a sexual and
indecent manner likely to impair her health or morals
in violation of § 53-21 (a) (2).
Before trial, the trial court granted the prosecutor’s
request that the victim’s stepmother sit with her on the
witness stand pursuant to General Statutes § 54-86g
(b).5 The trial court observed that ‘‘there’s no compel-
ling necessity test [for granting such a request], it’s just
simply the question of whether it will help [the victim] to
testify completely and reliably . . . .’’ The court further
observed, however, that, based on its interview of the
victim on the stand in the absence of the jury, ‘‘if there
were a stronger requirement, [it] would find that in this
case, because it’s very clear [that the victim] will clam
up otherwise.’’
During trial, the prosecutor asked the victim what
the defendant had done to her. The victim responded,
‘‘[h]e hurt me.’’ The prosecutor then asked her, ‘‘how
did he hurt you? Did he hurt your private?’’6 The victim
responded, ‘‘[y]es.’’ After the victim responded, defense
counsel made an objection, which the trial court over-
ruled. The prosecutor then asked the victim, ‘‘what did
[the defendant] hurt your private with?’’ The victim
responded, ‘‘[h]is private.’’ A short time later, the prose-
cutor asked the victim, ‘‘[w]hat does he do . . . when
you’re on the bed? You said he put his private in your
private.’’ After the victim responded ‘‘[y]es,’’ defense
counsel objected, and the trial court again overruled
the objection. During subsequent questioning of the
victim, the prosecutor indicated on several occasions
that the defendant had ‘‘put his private in [the victim’s]
private.’’7 On redirect examination, the prosecutor
asked the victim: ‘‘[J]ust so everybody understands,
where did [the defendant’s] private go, in or outside of
your private?’’ The victim responded, ‘‘[i]n.’’
The prosecutor also asked the victim whether any-
thing had ‘‘come out of [her] private or [the defendant’s]
private . . . .’’ She responded ‘‘[h]is’’ and indicated that
the substance was blood. The prosecutor then asked:
‘‘And where did the blood—it came out of your private
and went where? The bed, your underwear, his—on
him, where?’’ The victim responded, ‘‘[b]ed.’’ The victim
also testified that the defendant had put his ‘‘private’’
in her ‘‘private’’ on multiple occasions, that he had put
his ‘‘private’’ inside her mouth, that he had put his ‘‘pri-
vate’’ inside her ‘‘butt,’’ and that, during one of the
assaults, he held her face down on the bed so that she
had difficulty breathing.8
The victim further testified that she was frightened
of the defendant. The victim’s aunt testified that, when
the victim came to stay with her, the victim would not
want to return home because she was scared and that,
when they saw the defendant at a store once during an
outing, the victim cried and tried to hide behind her.
Lisa Melillo, a school psychologist and trained foren-
sic interviewer, testified as an expert witness for the
state about behaviors that are typical for children who
have been sexually abused. Melillo testified that trauma
can heighten a child’s memory of an event and that
sexual abuse by a person known to the child can
increase the trauma.
During closing argument, the prosecutor stated to
the jury: ‘‘I . . . want to thank you for the attention
that you have paid to the evidence in this case, and I
could see sometimes it wasn’t as easy as it either
would’ve been, should’ve been, if it were a different
type of trial, and I apologize for any anxiety any of the
evidence may have caused you. . . . I also want to
apologize for the photos that you had to view. The state
tried to keep it to a minimum. Unfortunately, it was
necessary that you viewed them.’’
Defense counsel stated to the jury during closing
argument that ‘‘[t]his is an exceptionally difficult and
disappointing and disgusting case, and I am very thank-
ful that you came down here and sat through this . . . .
[I]t’s a very emotionally compelling case; it’s a case that
gets you fired up . . . .’’ Defense counsel also argued
that the victim had fabricated the allegations that the
defendant had sexually assaulted her because ‘‘she
wanted out of that house . . . .’’ Defense counsel fur-
ther argued that the victim might have identified the
defendant as the person who assaulted her because of
Rowan’s suggestive question to the victim during her
initial examination at the Fair Haven Community Health
Center whether the defendant had done anything to her
‘‘private area.’’
During rebuttal argument, the prosecutor stated that
‘‘[defense counsel] . . . asked you to assume, not draw
a reasonable inference, but assume that the reason [the
victim] brought all of this up is that she wanted out of
the house. Did you hear anyone on that witness stand
say anything about her wanting out of the house? Does
she look like the type of child who would have been
evil enough to make this up to get out of the house?’’
The prosecutor further stated that ‘‘[the victim] is an
extremely passive, helpless girl folding in on herself,
shy, painfully shy. She was highly uncomfortable. In
the forensic [interview], there were tears, she was
embarrassed. Were those emotions real? The state sub-
mits to you absolutely they were. It’s easy to fake facts.
It’s much harder to fake emotion like you saw [in] the
forensic [interview] and on that witness stand.’’
Later during rebuttal, the prosecutor stated: ‘‘Moles
talked about that scar below where the hymen is miss-
ing. She said it’s a scar, it was a tearing injury similar
to an episiotomy. [The victim] did not have the luxury
of an episiotomy and a doctor who could give her . . .
some sort of pain medication. She was ripped. You
heard the doctor say that was a tearing injury.’’
The prosecutor also asked, with reference to the vic-
tim’s testimony that the defendant had held her head
against the bed during one of the assaults: ‘‘Does she
look like a child who’s sophisticated enough to give
you that kind of facts? If wishes could come true, this
would never have happened, but it did. [The victim]
told people in 2015, and she told them and told you in
2018, and, if wishes could come true, we wouldn’t have
to have witnesses like [the victim], children, who have
to be—who have to become embarrassed, they have to
show you their pain, they have to describe to you their
betrayal of trust, and show you [their] tears, all when
she was seven and eight.’’
During the course of the trial, the trial court conducted
a conference with the prosecutor and defense counsel
to review the court’s proposed jury instructions. Defense
counsel objected to the proposed instruction that the
jury could draw no unfavorable inference from the
defendant’s ‘‘failure’’ to testify, arguing that ‘‘[the word
failure] gives a negative connotation, and it makes it
seem as though he had an obligation and he failed to
do it.’’ Defense counsel requested that the trial court
instead instruct the jury that the defendant ‘‘elected not
to testify.’’ The trial court stated that ‘‘the legislature
mandates this charge’’ and indicated that, if the court
did not give the instruction in ‘‘the way that the legisla-
ture mandates, that itself may be plain error.’’ Accord-
ingly, the trial court denied the defendant’s request. The
court ultimately instructed the jury that ‘‘[t]he defen-
dant has not testified in this case. An accused person
has the option to either testify or not testify at trial.
He’s under no obligation to testify. He has a constitu-
tional right not to testify. You must draw no unfavorable
inference from the defendant’s failure to testify.’’
The jury found the defendant guilty on all counts.
The court rendered judgment in accordance with the
verdict and sentenced the defendant to twenty years
imprisonment on each count, with the first two counts
to run concurrently with each other, the third and fourth
counts to run concurrently with each other, and the
fifth and sixth counts to run concurrently with each
other. The first, third and fifth counts were to run con-
secutively to each other, for a total effective sentence
of sixty years imprisonment.
This appeal followed. The defendant claims on appeal
that the prosecutor, while questioning the victim and
during closing and rebuttal arguments, improperly
assumed facts not in evidence, vouched for the victim’s
credibility and appealed to the jurors’ emotions, and
that these improprieties deprived him of his due process
right to a fair trial. The defendant also contends that
the trial court violated § 54-84 (b) when it denied his
request to instruct the jury that it could draw no unfa-
vorable inference from the fact that he ‘‘elected’’ not
to testify and, instead, referred to his ‘‘failure’’ to testify.
He further contends that, if we conclude that § 54-84
(b) authorized the trial court to refer to his ‘‘failure to
testify,’’ even though he requested alternative language,
the statute infringed on his constitutional right to
remain silent. We reject all of these claims.
I
We first address the defendant’s claims that the prose-
cutor improperly referred to facts not in evidence when
she asked the victim (1) ‘‘[y]ou said [the defendant] put
his private in your private,’’ and other questions using
that phrase, and (2) ‘‘the blood . . . came out of your
private and went where,’’ and other questions using
that phrase. We conclude that these questions did not
constitute prosecutorial impropriety.
At the outset, we address the state’s assertion that
these claims are not reviewable because they are not
constitutional in nature, as the defendant contends, but
are instead unpreserved evidentiary claims insofar as
defense counsel did not properly object to the prosecu-
tor’s questions at trial.9 This court has repeatedly held
that, ‘‘[i]n cases of unpreserved claims of prosecutorial
[impropriety] . . . it is unnecessary for the defendant
to 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 R., 317 Conn
733, 781, 120 A.3d 1188 (2015)] . . . and, similarly, it
is unnecessary for a reviewing court to apply the four-
pronged Golding test. The reason for this is that the
touchstone for appellate review of claims of prosecu-
torial [impropriety] is a determination of whether the
defendant was deprived of his right to a fair trial, and
this determination must involve the application of the
factors set out by this court in State v. Williams, 204
Conn. 523, 540, 529 A.2d 653 (1987).’’ (Internal quotation
marks omitted.) State v. Spencer, 275 Conn. 171, 178,
881 A.2d 209 (2005). We also have held, however, that
‘‘unpreserved evidentiary claims masquerading as con-
stitutional claims will be summarily dismissed’’ as unre-
viewable. State v. Golding, supra, 241.
In the present case, the state contends that the defen-
dant’s claims that the prosecutor engaged in prosecu-
torial impropriety during her questioning of the victim
are actually evidentiary claims because he is challeng-
ing the manner in which the prosecutor phrased the
questions, not the information that the prosecutor
sought to elicit. The state further contends that the
questions that the defendant is challenging were permis-
sible leading questions. We conclude that we need not
resolve this issue because the defendant cannot prevail
on the merits of his claims. See, e.g., State v. William
L., 126 Conn. App. 472, 483 n.11, 11 A.3d 1132 (‘‘[w]e
do not need to decide whether the defendant waived
his claim, as we resolve the claim on other grounds’’),
cert. denied, 300 Conn. 926, 15 A.3d 628 (2011). Indeed,
to determine whether the defendant’s claims are review-
able constitutional claims or unreviewable evidentiary
claims, we would have to determine whether the prose-
cutor’s questions improperly assumed facts not in evi-
dence or reflected reasonable inferences from the
evidence, which is precisely the same analysis that we
apply to the claims on their merits.10 Cf. State v. Spencer,
supra, 275 Conn. 178 (application of Golding test is
superfluous when considering claim of prosecutorial
impropriety because determining whether due process
rights were violated requires court to consider ‘‘the
fairness of the entire trial, and not the specific incidents
of [impropriety] themselves’’ (internal quotation
marks omitted)).
We turn, therefore, to the merits of the defendant’s
claims. ‘‘In analyzing claims of prosecutorial impropri-
ety, we engage in a two step analytical process. . . .
The two steps are separate and distinct. . . . We first
examine whether prosecutorial impropriety occurred.
. . . Second, if an impropriety exists, we then examine
whether it deprived the defendant of his due process
right to a fair trial. . . . In other words, an impropriety
is an impropriety, regardless of its ultimate effect on
the fairness of the trial. Whether that impropriety was
harmful and thus caused or contributed to a due process
violation involves a separate and distinct inquiry.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Long, 293 Conn. 31, 36–37, 975 A.2d 660 (2009).
‘‘A prosecutor, in fulfilling his duties, must confine
himself to the evidence in the record. . . . Statements
as to facts [that] have not been proven amount to
unsworn testimony . . . .’’ (Citations omitted.) State
v. Williams, supra, 204 Conn. 544; see also State v.
Fauci, 282 Conn. 23, 49, 917 A.2d 978 (2007) (‘‘[w]e
long have held that a prosecutor may not comment on
evidence that is not a part of the record’’). ‘‘[W]hen a
prosecutor suggests a fact not in evidence, there is a
risk that the jury may conclude that he or she has
independent knowledge of facts that could not be pre-
sented to the jury.’’ State v. Singh, 259 Conn. 693, 718,
793 A.2d 226 (2002).
In the present case, the defendant contends that the
prosecutor improperly referred to facts not in evidence
during her examination of the victim when she stated
that (1) the defendant ‘‘put his private in [the victim’s]
private,’’ and (2) ‘‘blood . . . came out of [the victim’s]
private . . . .’’ We disagree. With respect to the first
claim, we note that the victim had testified that the
defendant hurt her ‘‘private’’ with his ‘‘private.’’ We can-
not conceive how the defendant could have done so
without penetrating the victim’s genital area with his
penis. Accordingly, although it may have been prefera-
ble for the prosecutor to ask the victim a question to
clarify this issue instead of stating ‘‘[y]ou said he put
his private in your private,’’ this statement was not just
a reasonable inference from the victim’s testimony; it
was a necessary inference. Moreover, the victim
expressly testified on redirect examination that the
defendant’s ‘‘private’’ went ‘‘[i]n’’ her ‘‘private.’’ In addi-
tion, later witnesses provided ample evidence that the
victim had suffered a traumatic penetrating injury to
her genital area.11 Indeed, the defendant did not dispute
that that was the case but contended only that he was
not the perpetrator. We further note that defense coun-
sel raised no objection to the prosecutor’s questions
rephrasing the victim’s testimony. See State v. Medrano,
308 Conn. 604, 612, 65 A.3d 503 (2013) (‘‘defense coun-
sel’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 omitted)).
Finally, we note that the child victim was, quite under-
standably, a very challenging witness who was extremely
reluctant to provide details of the sexual assaults to
which she allegedly had been subjected. Under these
circumstances, we cannot conclude that the prosecu-
tor’s reframing of the victim’s testimony that the defen-
dant had hurt her ‘‘private’’ with his ‘‘private’’ as
testimony that the defendant had put his ‘‘private’’ in
her ‘‘private’’ was a deliberate attempt to distort the
testimony or to suggest that the prosecutor had knowl-
edge of facts that could not be presented to the jury.
We conclude, therefore, that the prosecutor did not
improperly refer to facts not in evidence.
For similar reasons, we conclude that the prosecu-
tor’s questions that were premised on her statement
that blood came out of the victim’s ‘‘private’’ were not
improper. Again, it would have been preferable for the
prosecutor to ask additional questions allowing the wit-
ness to clarify and correct her plainly mistaken testi-
mony that the blood came out of the defendant, or to
ask the victim if, at any point after the assaults, blood
had come out of her ‘‘private,’’ instead of making a
statement to that effect. The question ‘‘it came out of
your private and went where’’ was not significantly
more suggestive of independent knowledge of facts,
however, than the leading question ‘‘isn’t it true that
blood came out of your private’’ would have been, and
it would have been well within the trial court’s discre-
tion to allow the prosecutor to lead this young, appre-
hensive and reluctant witness on this point. See Conn.
Code Evid. § 6-8 (b), commentary (under § 6-8 (b) (3),
‘‘the court may allow the calling party to put leading
questions to a young witness who is apprehensive or
reticent’’); see also State v. Salamon, 287 Conn. 509,
560, 949 A.2d 1092 (2008) (trial court properly permitted
prosecutor to use leading questions when examining
victim, who was sixteen years old, nervous, very soft-
spoken, uneasy and reticent); State v. Marrero, 198
Conn. App. 90, 105, 234 A.3d 1 (‘‘it is not improper for
a prosecutor, when using leading questions to examine
a hostile witness, to include facts in those questions—as
to which no other evidence has yet been introduced—
as long as the prosecutor has a good faith basis for
believing that such facts are true’’), cert. granted, 335
Conn. 961, 239 A.3d 1214 (2020). This is particularly so
because it is within the knowledge of an ordinary juror
that blood does not come out of a penis during inter-
course. The salient point of the victim’s testimony was
that there was blood in her genital area immediately
after the assault, not her belief as to the source of the
blood. Indeed, the prosecutor acknowledged during her
rebuttal argument to the jury that the victim had stated
that blood came out of the defendant’s penis and argued
that the jury could reasonably infer that, at the age of
seven or eight, the victim simply did not know where
the blood in her genital area came from. We further
note that other witnesses provided evidence that the
traumatic, penetrating injuries to the victim’s genital
area had resulted in copious bleeding; the defendant
never disputed that fact, and he raised no objection to
the questions to the victim at the time of trial. We
conclude, therefore, that the prosecutor did not engage
in prosecutorial impropriety during her questioning of
the victim.
II
We next address the defendant’s claim that the prose-
cutor engaged in prosecutorial impropriety during clos-
ing and rebuttal arguments by arguing facts not in
evidence, appealing to the jurors’ emotions and vouch-
ing for the victim’s credibility. We disagree.
‘‘As we previously have recognized, prosecutorial
[impropriety] of a constitutional magnitude can occur
in the course of closing arguments. . . . When making
closing arguments to the jury, [however] [c]ounsel 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. 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 [none-
theless] be convicted only after a fair trial, conducted
strictly according to the sound and [well established]
rules which the laws prescribe. While the privilege of
counsel in addressing the jury should not be too closely
narrowed or unduly hampered, it must never be used
as a license to state, or to comment upon, or to suggest
an inference from, facts not in evidence, or to present
matters which the jury ha[s] no right to consider.’’
(Internal quotation marks omitted.) State v. Martinez,
319 Conn. 712, 727–28, 127 A.3d 164 (2015).
‘‘Furthermore, a prosecutor may not express her own
opinion, either directly or indirectly, as to the credibility
of a witness or the guilt of the defendant. . . . Such
expressions of personal opinion are a form of unsworn
and unchecked testimony. . . . These expressions of
opinion are particularly difficult for the jury to ignore
because of the special position held by the prosecutor.
. . . A prosecutor’s voucher for a witness is particularly
dangerous for two reasons. First, such comments may
convey the impression that the prosecutor is aware of
evidence supporting charges against the defendant of
which the jury has no knowledge. . . . Second, the
prosecutor’s opinion carries with it the imprimatur of
the [state] and may induce the jury to trust the [state’s]
judgment rather than its own view of the evidence. . . .
[I]t is axiomatic that a prosecutor may not advance an
argument that is intended solely to appeal to the jurors’
emotions and to evoke sympathy for the victim or out-
rage at the defendant. . . . An appeal to emotions, pas-
sions, or prejudices improperly diverts the jury’s
attention away from the facts and makes it more diffi-
cult for it to decide the case on the evidence in the
record. . . . When the prosecutor appeals to emotions,
he invites the jury to decide the case, not according to
a rational appraisal of the evidence, but on the basis
of powerful and irrelevant factors [that] are likely to
skew that appraisal. . . . An improper appeal to the
jurors’ emotions can take the form of a personal attack
on the defendant’s character . . . or a plea for sympa-
thy for the victim or her family.’’ (Citation omitted;
internal quotation marks omitted.) State v. Maguire,
310 Conn. 535, 554–55, 78 A.3d 828 (2013).
The defendant in the present case first claims that the
prosecutor engaged in prosecutorial impropriety during
closing argument when she stated: ‘‘I . . . want to
thank you for the attention that you have paid to the
evidence in this case, and I could see sometimes it
wasn’t as easy as it either would’ve been, should’ve
been, if it were a different type of trial, and I apologize
for any anxiety any of the evidence may have caused
you. . . . I also want to apologize for the photos that
you had to view. The state tried to keep it to a minimum.
Unfortunately, it was necessary that you viewed them.’’
The defendant contends that these comments argued
facts not in evidence, namely, that viewing the evidence
had been difficult and caused anxiety to the jurors, and
that the state had additional evidence that it did not
present at trial. The defendant further contends that the
comments appealed to the jurors’ emotions and were
intended to evoke outrage at the defendant.
We are not persuaded. As we have explained, ‘‘a pros-
ecutor 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.’’ (Internal quotation marks omitted.)
State v. Martinez, supra, 319 Conn. 727. Indeed, the
Appellate Court has found even more forceful rhetoric
to be proper in a case involving very similar facts. In
State v. Williams, 65 Conn. App. 449, 783 A.2d 53, cert.
denied, 258 Conn. 927, 783 A.2d 1032 (2001), ‘‘[t]he
defendant subjected the victim [the young daughter
of the defendant’s girlfriend] to repeated sexual acts,
including vaginal intercourse, digital penetration, fella-
tio and cunnilingus.’’ Id., 452. During closing argument,
the prosecutor stated that ‘‘[the] case involves many
brutal, violent and unpleasant facts. . . . The six year
old . . . was the victim of horrible and repulsive
crimes and she suffered this degradation at the hands
of the defendant . . . . She was humiliated in the
worst way imaginable.’’ (Internal quotation marks omit-
ted.) Id., 467. The Appellate Court concluded that these
comments were ‘‘not improper in view of the evidence
presented.’’ Id. Moreover, in the present case, defense
counsel himself stated during closing argument that
‘‘[t]his is an exceptionally difficult and disappointing
and disgusting case, and I am very thankful that you
came down here and sat through this . . . . [I]t’s a
very emotionally compelling case; it’s a case that gets
you fired up . . . .’’ It is also significant that defense
counsel did not object to the prosecutor’s remarks,
thereby indicating that he did not believe that they were
improper in light of the evidence at the time. See, e.g.,
State v. Medrano, supra, 308 Conn. 612. We conclude,
therefore, that the remarks were not improper. For the
same reasons, we conclude that the prosecutor did not
improperly appeal to the jurors’ emotions or vouch for
the victim’s credibility when she stated, ‘‘[i]f wishes
could come true, this would never have happened, but
it did. . . . [A]nd, if wishes could come true, we
wouldn’t have to have witnesses like [the victim], chil-
dren, who have to . . . become embarrassed, they
have to show you their pain, they have to describe to
you their betrayal of trust, and show you [their] tears,
all when she was seven and eight.’’
With respect to the defendant’s claim that, by stating
that, with respect to the photographs of the victim’s
injury, ‘‘[t]he state tried to keep it to a minimum,’’ the
prosecutor suggested that the state had additional evi-
dence that it did not produce at trial, we conclude that
this comment merely indicated that, although, in order
to prove its case, the state was required to present
evidence that an ordinary person would find difficult
to view, the state had made an effort to minimize any
discomfort by not dwelling on the most disturbing evi-
dence or making it a focal point throughout the case.
At most, the comment could be understood to mean
that the state made an effort not to present cumulative
evidence. The prosecutor did not suggest that the state
was in possession of additional photographic evidence
that would strengthen the case against the defendant.
The defendant also claims that the prosecutor improp-
erly appealed to the jurors’ emotions and vouched for
the victim’s credibility when she asked the jurors,
‘‘[d]oes [the victim] look like the type of child who
would have been evil enough to make this up to get
out of the house?’’ The defendant cites State v. Alexan-
der, 254 Conn. 290, 755 A.2d 868 (2000), in support of
this claim. In Alexander, the prosecutor ‘‘implied that
the victim testified truthfully because she is young and
therefore honest. The summation further contended
that no child would possibly make up a story regarding
sexual abuse.’’ Id., 305. This court concluded that the
remarks were ‘‘improper vouchers for the victim’s credi-
bility. Statements such as these [were] likely to sway
a jury in favor of the prosecutor’s argument without
properly considering the facts in evidence. This [was]
especially significant in [Alexander], [in which] the
credibility of the victim and the defendant comprised
the principal issue of the case. Improper comments on
the part of the prosecutor regarding the veracity of
one party over the other can easily skew a proper jury
deliberation.’’ Id.; see also State v. Singh, supra, 259
Conn. 708 (it is improper for prosecutor to suggest that,
‘‘in order to acquit the defendant, [the jury] must find
that the witness has lied’’).
We conclude that the prosecutor’s remark in the pres-
ent case was not improper under Alexander and Singh.
The prosecutor made the remark in response to defense
counsel’s argument that the victim had fabricated the
allegations that the defendant had sexually assaulted
her because ‘‘she wanted out of that house . . . .’’
Thus, it was defense counsel who initially suggested
that the victim was not merely confused or mistaken
about the identity of her assailant, but that she had
deliberately lied about the defendant’s conduct for per-
sonal gain. Although we generally disapprove of
remarks suggesting to the jury that it must conclude
that a witness is deliberately lying and, by implication,
evil, before it may question the witness’ credibility, the
prosecutor here was simply attempting to rebut the
defendant’s claim to that effect by arguing that the
victim’s appearance and demeanor did not support the
claim. See, e.g., State v. O’Brien-Veader, 318 Conn. 514,
547, 122 A.3d 555 (2015) (‘‘a prosecutor may argue about
the credibility of witnesses, as long as her assertions
are based on evidence presented at trial and reasonable
inferences that jurors might draw therefrom’’ (internal
quotation marks omitted)). We further note that, unlike
in State v. Alexander, supra, 254 Conn. 305, the prosecu-
tor did not suggest that the victim was honest because
she was young or that no child could make up an allega-
tion of sexual abuse, thereby suggesting that she had
knowledge of facts that could not be presented to the
jury; she suggested only that the jury could infer from
this child’s appearance and demeanor on the stand that
she was not lying in order to obtain something of value,
namely, getting out of the house.
Similarly, we reject the defendant’s claim that the
prosecutor improperly appealed to the jurors’ emotions
and vouched for the victim’s credibility when she stated
that the victim ‘‘is an extremely passive, helpless girl
folding in on herself, shy, painfully shy. She was highly
uncomfortable. In the forensic [interview], there were
tears, she was embarrassed.’’ Again, the prosecutor was
responding to defense counsel’s argument that the vic-
tim had lied by asking the jury to consider the victim’s
appearance and demeanor. The record reflects that,
during her examination of the victim, the prosecutor
was required to ask her repeatedly to speak louder, to
repeat her response and to lift her head while speaking.
In addition, the victim was tearful, withdrawn and obvi-
ously uncomfortable during the forensic interview, a
video recording of which was shown to the jury. Thus,
the prosecutor’s assertions were supported by evidence
that was before the jury.
The defendant further contends that the prosecutor
improperly vouched for the victim’s credibility when
she asked rhetorically, ‘‘[w]ere those emotions real,’’
and stated that ‘‘[t]he state submits to you absolutely
they were. It’s easy to fake facts. It’s much harder to
fake emotion like you saw [in] the forensic [interview]
and on that witness stand.’’ We acknowledge that the
propriety of these remarks is a closer question. On the
one hand, it is well established that a prosecutor may
not express her opinion as to the credibility of a witness,
thereby inducing the jury ‘‘to trust the [state’s] judgment
rather than its own view of the evidence.’’ (Internal
quotation marks omitted.) State v. Maguire, supra, 310
Conn. 554. On the other hand, however, jurors ‘‘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.’’ (Internal quotation
marks omitted.) State v. O’Brien-Veader, supra, 318
Conn. 547. Moreover, not every use of a rhetorical flour-
ish by the prosecutor is improper. See, e.g., State v.
Martinez, supra, 319 Conn. 727.
The Appellate Court’s decision in State v. Cromety,
102 Conn. App. 425, 925 A.2d 1133, cert. denied, 284
Conn. 912, 931 A.2d 932 (2007), is instructive on this
issue. The defendant in Cromety claimed that the prose-
cutor had improperly asked the jury ‘‘[i]s that something
somebody would make up’’ with respect to the victim’s
testimony that ‘‘white stuff came out’’ when the defen-
dant forced her to perform fellatio, that she did not
know at the time what the ‘‘white stuff’’ was, and that,
after the assault, she brushed her teeth. (Internal quota-
tion marks omitted.) Id., 438–39. The court concluded
that the prosecutor’s rhetorical question did not consti-
tute improper vouching for the victim’s credibility
because he was asking the jury to apply common sense
to determine whether the victim was ‘‘a vulnerable deaf
child or a vengeful stepdaughter, as the defendant
claimed.’’ Id., 440.
The present case presents a closer question than Cro-
mety did because the prosecutor not only asked a rhe-
torical question appealing to the jury to evaluate the
victim’s credibility, but also answered her own question
when she stated that ‘‘[t]he state submits to you [that
the victim’s emotions] absolutely . . . were [real].’’ It
would have been preferable if the prosecutor had not
made her remark in the form of a direct opinion but,
instead, had phrased it to advocate the state’s view that
the evidence supports such a finding. Nevertheless, we
conclude that neither this statement nor the prosecu-
tor’s statements that the victim’s emotions were real
and that it is ‘‘[hard] to fake emotion like you saw
[in] the forensic [interview] and on that witness stand’’
improperly induced the jury ‘‘to trust the [state’s] judg-
ment rather than its own view of the evidence.’’ (Inter-
nal quotation marks omitted.) State v. Maguire, supra,
310 Conn. 554. In context, the statements appealed to
the jurors’ common sense and life experiences, and
referred to evidence that had been presented at trial.
See State v. Gibson, 302 Conn. 653, 661, 31 A.3d 346(2011) (‘‘when the prosecutor immediately followed
[his] recitation of the evidence with the rhetorical ques-
tion, ‘[d]id the defendant wilfully [fail] to appear in
court on May 5, 2006?’ and then responded, ‘I think he
did,’ he was attempting to persuade the jury to draw
this inference from the circumstantial evidence of intent
that he had just recited, and was not giving improper
unsworn testimony or attempting to insinuate that he
had secret knowledge of the defendant’s guilt’’). For
the same reasons, we reject the defendant’s claim that
the prosecutor’s rhetorical question, ‘‘[d]oes she look
like a child who’s sophisticated enough to give you that
kind of facts,’’ was improper.
The defendant finally claims that the prosecutor
improperly appealed to the jurors’ emotions when, dur-
ing rebuttal argument, she stated in reference to the
injuries to the victim’s genital area that ‘‘[s]he was
ripped,’’ that she suffered ‘‘a tearing injury similar to
an episiotomy’’ and that she did not have the luxury of
having a doctor prescribe pain medication during the
assault. We disagree. The prosecutor made these com-
ments in response to defense counsel’s contention that
the victim may have mistakenly identified the defendant
as her assailant because Rowan had suggestively asked
her whether the defendant had done anything to her
‘‘private area.’’ The state’s expert witness, Melillo, had
testified that trauma can heighten a child’s memory of
an incident of sexual abuse, especially if the assailant
is known to the child. Accordingly, the jury reasonably
could have inferred from the severe nature of the vic-
tim’s injuries that, contrary to defense counsel’s argu-
ment, her memory of the assault was accurate. In
addition, the comments were responsive to defense
counsel’s argument that the victim lied about the iden-
tity of her assailant because she wanted to get out of
the house that she shared with the defendant. The jury
reasonably could have inferred that, if the victim had
wanted to get out of the house, it was because the
defendant had brutally assaulted her. Although the pros-
ecutor did not expressly make these arguments, she
did indicate that the severe nature of the victim’s injur-
ies went to the defendant’s claim that the victim was
suggestible, and the jury may take any reasonable infer-
ence from the evidence before it. See, e.g., Champagne
v. Raybestos-Manhattan, Inc., 212 Conn. 509, 544, 562
A.2d 1100 (1989).
We acknowledge, however, that it would have been
preferable if the prosecutor had not used the phrase
‘‘[s]he was ripped,’’ which arguably has more violent
connotations than the language that Moles used to
describe the victim’s injuries. In addition, we view with
some skepticism the prosecutor’s mordant observation
that, unlike a woman who undergoes an episiotomy
during childbirth, the victim did not have the luxury
of receiving pain medication during the assault. These
comments came very close to the line between permissi-
ble comment on the evidence and an impermissible
plea for sympathy. Because we conclude that the com-
ments did not materially mischaracterize Moles’ testi-
mony or exaggerate the severity of the victim’s
suffering, however, we conclude that they did not cross
that line. We conclude, therefore, that the comments
were not improper.
III
We finally address the defendant’s claim that the trial
court violated § 54-84 (b) when it denied the defendant’s
request to instruct the jury that it could draw no unfa-
vorable inference from the fact that he elected not to
testify. The defendant also contends that, if we conclude
that the trial court was not statutorily required to give
the instruction that he requested, § 54-84 (b) infringed
on his constitutional right to remain silent to the extent
that it authorized the trial court to instruct the jury
that it could draw ‘‘no unfavorable inferences from the
accused’s failure to testify.’’ We reject both of these
claims.
A
We first address the defendant’s statutory claim. The
defendant contends that, contrary to the trial court’s
determination that it was required to instruct the jury
using the specific wording of § 54-84 (b), the clause of
the statute ‘‘[u]nless the accused requests otherwise’’
required the trial court to give the instruction that he
requested. The proper interpretation of § 54-84 (b) is a
question of statutory interpretation to which we apply
well established rules of construction and over which
we exercise plenary review. See, e.g., General Statutes
§ 1-2z (plain meaning rule); Canty v. Otto, 304 Conn.
546, 557–58, 41 A.3d 280 (2012) (general rules of con-
struction aimed at ascertaining legislative intent).
We begin our analysis with a review of our past cases
construing § 54-84 (b). In State v. Wright, 197 Conn.
588, 594, 500 A.2d 547 (1985), the defendant, like the
defendant in the present case, contended that the trial
court had improperly instructed the jury that it could
draw no unfavorable inferences from his ‘‘ ‘failure to
testify’ ’’ because that language implied that he had a
duty to testify. This court noted that the trial court had
used the specific language of § 54-84 (b). Id. We also
observed that this court previously had held that ‘‘a
failure by the trial court to comply with § 54-84 (b) is
plain error . . . and that deviations from the statutory
language that alter the meaning of the charge constitute
grounds for reversal.’’ (Citations omitted.) Id., 595. In
addition, we observed that, ‘‘[i]f the defendant felt that
the word ‘failure’ had unfavorable connotations, he
could have requested that the court modify the charge
or not give it at all.’’ Id. Accordingly, we concluded that
‘‘it was not error for the trial court to instruct the jury
as it did.’’ Id.
The defendant in State v. Casanova, 255 Conn. 581,
767 A.2d 1189 (2001), also challenged the trial court’s
use of the language ‘‘failure to testify’’ to describe the
defendant’s decision not to testify on the ground that
the ‘‘use of the word ‘failure’ had a negative connota-
tion.’’ Id., 597. The defendant had requested that the
trial court substitute more ‘‘neutral’’ language, without
suggesting any specific alternative. Id., 598. This court
observed that ‘‘[a] refusal to charge in the exact words
of a request . . . will not constitute error if the
requested charge is given in substance.’’ (Internal quota-
tion marks omitted.) Id., 599. We further observed that
‘‘[a] party always may take exception to the trial court’s
jury charge or request that the trial court modify its
language. See Practice Book §§ 42-19 and 42-24. The
language ‘unless the accused requests otherwise,’ how-
ever, permits the defendant to elect whether the court
should give the jury an instruction concerning the defen-
dant’s failure to testify. . . . We have not interpreted
that language to mean that the court must use the
defendant’s requested language.’’ (Citation omitted;
emphasis in original; footnote omitted.) Id., 600–601.
Accordingly, this court concluded that the trial court
had properly instructed the jury. Id., 601.
We glean the following principles from these cases.
First, a defendant may request, and the trial court may
give, a jury instruction that deviates from the specific
wording of § 54-84 (b), as long as the instruction does
not materially alter the substantive meaning of the stat-
ute. See id., 600 (‘‘[a] party always may take exception
to the trial court’s jury charge or request that the trial
court modify its language’’); State v. Wright, supra, 197
Conn. 595 (defendant ‘‘could have requested that the
court modify the charge’’); State v. Wright, supra, 595
(only ‘‘deviations from the statutory language that alter
the meaning of the charge constitute grounds for rever-
sal’’).12 Second, the trial court is not required to grant a
defendant’s request for an alternative instruction under
§ 54-84 (b) but may give any instruction that accurately
states the law. See State v. Casanova, supra, 255 Conn.
601 (defendant may request alternative language, but
that does not ‘‘mean that the court must use the defen-
dant’s requested language’’ (emphasis in original)); see
also State v. Whipper, 258 Conn. 229, 286, 780 A.2d 53(2001) (‘‘there is no requirement in . . . § 54-84 (b)
that a trial court must use the language requested by
a defendant when he chooses not to testify’’), overruled
in part on other grounds by State v. Cruz, 269 Conn.
97, 848 A.2d 445 (2004), and State v. Grant, 286 Conn.
499, 944 A.2d 947, cert. denied, 555 U.S. 916, 129 S. Ct.
271, 172 L. Ed. 2d 200 (2008). Third, § 54-84 (b) requires
the trial court to grant a defendant’s request that the
court give no instruction concerning the defendant’s
failure to testify. See State v. Casanova, supra, 600
(‘‘[t]he language ‘unless the accused requests otherwise’
. . . permits the defendant to elect whether the court
should give the jury an instruction concerning the defen-
dant’s failure to testify’’). Fourth, in the absence of such
a request, the failure to give a no unfavorable inference
instruction pursuant to § 54-84 (b) is plain error. State
v. Wright, supra, 595 (‘‘a failure by the trial court to
comply with § 54-84 (b) is plain error’’); see also State
v. Carter, 182 Conn. 580, 581, 438 A.2d 778 (1980) (trial
court’s failure to give instruction pursuant to § 54-84
(b) was plain error).
These principles are consistent with the underlying
purpose of the statute. When § 54-84 (b) was enacted
in 1977; see Public Acts 1977, No. 77-360; ‘‘neither the
United States Supreme Court nor this court had yet
recognized the [no adverse inference] instruction as a
component of self-incrimination protections.’’ (Internal
quotation marks omitted.) State v. Cohane, 193 Conn.
474, 483, 479 A.2d 763, cert. denied, 469 U.S. 990, 105
S. Ct. 397, 83 L. Ed. 2d 331 (1984); see also State v.
Branham, 171 Conn. 12, 16, 368 A.2d 63 (1976) (‘‘[i]n
the absence of controlling statutory provisions the
accused is not entitled to an instruction that no opinion
prejudicial to him shall be drawn from his failure to
testify’’ (internal quotation marks omitted)). It was not
until 1981 that the United States Supreme Court held
in Carter v. Kentucky, 450 U.S. 288, 101 S. Ct. 1112, 67
L. Ed. 2d 241 (1981), that ‘‘a state trial judge has the
constitutional obligation, upon proper request, to mini-
mize the danger that the jury will give evidentiary weight
to a defendant’s failure to testify’’ by giving a no adverse
inference instruction. Id., 305; see State v. Cohane,
supra, 483. It is reasonable to conclude, therefore, that
the purpose of § 54-84 (b) was to fill this statutory gap
and to ensure prophylactically that the defendant would
pay no price for exercising his constitutional right to
remain silent. Thus, it is also reasonable to conclude
that the statute was intended to create a floor of prophy-
lactic protection, not a ceiling. Indeed, we can perceive
no reason why the legislature would have wanted to bar
trial courts from deviating from the specific language
of the statute when instructing the jury, as long as the
courts give an instruction that is at least as protective
of the defendant’s constitutional right as the statutory
language.13 To the extent that this court has previously
held that a minor deviation from the specific wording
of § 54-84 (b) is improper, even if the instruction does
not alter the substantive meaning of the statute; see,
e.g., State v. Townsend, 206 Conn. 621, 626, 539 A.2d
114 (1988) (‘‘the trial court’s minor deviation from the
literal wording of § 54-84 (b)’’ was error, but error was
harmless because instruction conveyed ‘‘the substan-
tive meaning’’ of statute); State v. Cobb, 199 Conn. 322,
324–25, 507 A.2d 457 (1986) (same); those cases are
hereby overruled.
We conclude, therefore, that the trial court in the
present case incorrectly determined that any deviation
from the specific wording of § 54-84 (b) would be plain
error. Because instructing the jury that the defendant
‘‘elected’’ not to testify instead of referring to his ‘‘fail-
ure’’ to testify would not have mischaracterized the
defendant’s conduct in any way and would not have
altered the substantive meaning of the statute, we con-
clude that the trial court could have given the instruc-
tion that the defendant requested. Indeed, the state does
not contend otherwise.
Contrary to the defendant’s contention, however, we
have already expressly rejected the proposition that,
if a defendant requests that the trial court give a no
unfavorable inference instruction that deviates from the
specific wording of § 54-84 (b), the trial court is required
to give that instruction. See State v. Casanova, supra,
255 Conn. 600–601. Indeed, it would make little sense
for the legislature to mandate that the trial court must
give whatever instruction the defendant asks for in lieu
of the specific wording of § 54-84 (b). Rather, it is rea-
sonable to conclude that the legislature intended that
the trial court may give any instruction that accurately
states the law, which obviously would include an
instruction that contains the specific wording of the
statute.
We also disagree with the defendant’s claim that Cas-
anova is distinguishable because, unlike in the present
case, the defendant in that case did not ask for a specific
instruction. Nothing in Casanova suggests that the
absence of such a request had any bearing on our hold-
ing that the trial court is not required to grant a request
for an instruction that deviates from the wording of
§ 54-84 (b). We also conclude that the defendant’s claim
that our decision in Casanova should be overruled
because it was incorrect as a matter of statutory inter-
pretation is unreviewable because it has been inade-
quately briefed. See, e.g., Estate of Rock v. University
of Connecticut, 323 Conn. 26, 33, 144 A.3d 420 (2016)
(‘‘Claims are inadequately briefed when they are merely
mentioned and not briefed beyond a bare assertion.
. . . Claims are also inadequately briefed when they
. . . consist of conclusory assertions . . . with no
mention of relevant authority and minimal or no cita-
tions from the record . . . .’’ (Internal quotation marks
omitted.)). The defendant has merely made the bare
assertion that the case should be overruled, without
citing any authority or providing any analysis as to why
he believes that this court misconstrued § 54-84 (b).14
We conclude, therefore, that § 54-84 (b) did not require
the trial court to grant the defendant’s request to instruct
the jury that the defendant had elected not to testify.
B
We next address the defendant’s claim that § 54-84
(b) is unconstitutional to the extent that it authorizes the
trial court to refer to the defendant’s ‘‘failure to testify’’
when giving a no unfavorable inference instruction.15
We are not persuaded.
‘‘Determining the constitutionality of a statute presents
a question of law over which our review is plenary. . . .
It [also] is well established that a validly enacted statute
carries with it a strong presumption of constitutionality,
[and that] those who challenge its constitutionality must
sustain the heavy burden of proving its unconstitution-
ality beyond a reasonable doubt. . . . The court will
indulge in every presumption in favor of the statute’s
constitutionality . . . . Therefore, [w]hen a question
of constitutionality is raised, courts must approach it
with caution, examine it with care, and sustain the
legislation unless its invalidity is clear.’’ (Internal quota-
tion marks omitted.) Allen v. Commissioner of Revenue
Services, 324 Conn. 292, 314, 152 A.3d 488 (2016), cert.
denied, U.S. , 137 S. Ct. 2217, 198 L. Ed. 2d
659 (2017).
The fifth amendment to the United States constitution
prohibits the government from forcing a defendant to
be a witness against himself, and the United States
Supreme Court has concluded that this protection also
prohibits prosecutors from commenting at trial on the
defendant’s decision not to testify.16 Griffin v. Califor-
nia, 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L. Ed. 2d 106(1965); see also State v. Parrott, 262 Conn. 276, 292,
811 A.2d 705 (2003) (‘‘[i]t is well settled that comment
by the prosecuting attorney . . . on the defendant’s
failure to testify is prohibited by the fifth amendment
to the United States constitution’’ (internal quotation
marks omitted)). ‘‘In Griffin, the court reasoned 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.’’ State v. A. M., 324 Conn. 190, 200, 152 A.3d
49 (2016).
In addition, as we have already explained, ‘‘an accused
who exercises his right to refuse to testify has a consti-
tutional right to a no adverse inference instruction when
requested’’ under Carter v. Kentucky, supra, 450 U.S.
288. State v. Smith, 201 Conn. 659, 662, 519 A.2d 26(1986). ‘‘The raison d’etre for . . . the constitutional
right [to such an instruction] . . . is to reduce to a
minimum jury speculation as to why an accused would
remain silent in the face of a criminal accusation. ‘No
judge can prevent jurors from speculating about why
a defendant stands mute in the face of a criminal accusa-
tion, but a judge can, and must . . . use the unique
power of the jury instruction to reduce that speculation
to a minimum.’ Carter v. Kentucky, supra, 303.’’ State
v. Smith, supra, 662–63; see also State v. Ruocco, 322
Conn. 796, 804, 144 A.3d 354 (2016) (‘‘[w]ithout proper
instructions . . . a jury may prejudge a defendant
because he failed to take the stand and [to] protest his
innocence in the face of a criminal accusation’’ (internal
quotation marks omitted)).
The defendant in the present case contends that the
‘‘failure to testify’’ language of § 54-84 (b) ‘‘implies that
the defendant [did] something wrong by exercising his
right not to testify.’’ He points out that one source’s
definition of the word ‘‘failure’’ includes ‘‘an act or
instance of failing or proving unsuccessful; lack of suc-
cess,’’ ‘‘nonperformance of something due, required, or
expected,’’ and ‘‘a subnormal quantity or quality; an
insufficiency . . . .’’ Dictionary.com, available at
https://www.dictionary.com/browse/failure (last visited
April 19, 2021). Thus, the defendant argues, the word
‘‘plants in the minds of the jurors a deficiency about
the defense’’ and effectively penalizes the defendant for
exercising his constitutional rights.
The defendant also cites to the decision of the Indiana
Court of Appeals in Moreland v. State, 701 N.E.2d 288(Ind. App. 1998). In that case, the trial court instructed
the jury that ‘‘[t]he defendant’s failure to testify shall
not be considered by the jury in determining the [guilt]
or innocence of the defendant.’’ (Internal quotation
marks omitted.) Id., 294. The Indiana Court of Appeals
concluded that, in the absence of any objection by the
defendant, the instruction was not improper. Id. The
court also observed, however, that the defendant’s
claim was ‘‘not without merit. In the exercise of their
discretion, trial courts when instructing juries may wish
to avoid the use of the phrase ‘defendant’s failure,’
which is subject to pejorative construction. A defen-
dant’s exercise of his constitutional right not to incrimi-
nate himself is not a ‘failure.’ ’’ Id., 294 n.2.
In State v. Tyson, 23 Conn. App. 28, 579 A.2d 1083,
cert. denied, 216 Conn. 829, 582 A.2d 207 (1990), the
Appellate Court considered an identical constitutional
claim. The defendant in Tyson argued that the use of
the word ‘‘failure’’ in § 54-84 (b) ‘‘nullifies the presump-
tion of innocence by raising the implication that the
defendant had an unmet obligation, an obligation either
to respond to the accusation or to prove his innocence.’’
Id., 43. The Appellate Court rejected this claim, reason-
ing that, even if ‘‘the word ‘failure’ has a negative conno-
tation, [it] cannot agree that it is the word itself [that]
generates the prejudice to the defendant. The court’s
use of this word did not alert the jury to a fact of which
it had been unaware, or make it more likely that the jury
would draw an adverse inference from the defendant’s
silence.’’ Id. The Appellate Court further observed that
‘‘[t]he jury is patently aware of this failure. The United
States Supreme Court has noted that [i]t has been
almost universally thought that juries notice a defen-
dant’s failure to testify. . . . The laymen’s natural first
suggestion would probably be that the resort to privi-
lege in each instance is a clear confession of crime.’’
(Internal quotation marks omitted.) Id.
The Appellate Court concluded that ‘‘[t]he very nature
of the no adverse inference instruction specified in § 54-
84 (b) is to dispel and ameliorate the inevitable specula-
tion and to mitigate the damage to the defendant. The
defendant [in Tyson] merely prefers his own phrasing
of this warning not to speculate. Calling such failure
by a different name would not completely counter the
risk inherent in the defendant’s choosing to stand silent,
and we cannot fault the [trial] court’s adherence to
statutory mandates.’’ (Internal quotation marks omit-
ted.) Id., 43–44.
Although we ultimately agree with the Appellate
Court’s holding in Tyson, we do not entirely agree with
its analysis. The use of the word ‘‘failure’’ may not ‘‘alert
the jury to a fact of which it had been unaware’’; id.,
43; but it does have the tendency to confirm the validity
of the jury’s natural assumption that an innocent person
would take the stand to respond to the accusations
against him. We therefore agree with the defendant in
the present case that the use of more neutral language,
such as ‘‘the defendant’s choice not to testify,’’ or ‘‘the
fact that the defendant did not testify,’’ would be prefer-
able. Indeed, as the defendant points out, the Connecti-
cut Judicial Branch’s model criminal jury instructions
contain the following instruction: ‘‘The defendant has
not testified in this case. An accused person has the option
to testify or not to testify at the trial. (He/she) is under
no obligation to testify. (He/she) has a constitutional right
not to testify. You must draw no unfavorable inferences
from the defendant’s choice not to testify.’’ (Emphasis
added.) Connecticut Criminal Jury Instructions 2.2-4,
available at https://www.jud.ct.gov/JI/Criminal/Criminal
.pdf (last visited April 19, 2021). As we concluded in
part III A of this opinion, it is well within the trial courts’
discretion to use this alternative language, and we
encourage them to do so.
We conclude, however, that the semantic difference
between the phrase ‘‘failure to testify’’ and the phrase
‘‘choice not to testify’’ is too slight to have constitutional
significance within the overall context of the jury
instruction under consideration. There simply is no
completely neutral way to characterize the fact that the
defendant did not take the stand, which is why a no
adverse inference instruction is constitutionally
required upon the defendant’s request in the first
instance. For example, if the jury were instructed only
that the defendant elected not to testify, as was his
constitutional right under the fifth amendment, that
instruction would in no way curb the natural tendency
of the jury to assume that the defendant would not have
made that choice if he were innocent. Although the jury
would be aware that the defendant had no obligation
to testify, it would still know that the defendant had
the ability to testify if he so chose, and, in the absence
of a no adverse inference instruction, it would still natu-
rally assume that, by choosing not to testify, he did
what an innocent person would not have done. We
conclude, therefore, that, although the phrase ‘‘failure
to testify’’ has a slightly more negative connotation than
the phrase ‘‘choice not to testify’’ because the word
‘‘failure’’ suggests the nonperformance of an obligation,
that slight difference does not have a material impact
on a defendant’s constitutional right to remain silent.
This is especially so when, as in the present case, the
trial court has expressly instructed the jury that the
defendant had no obligation to testify and a constitu-
tional right not to testify. Accordingly, we reject the
defendant’s claim that § 54-84 (b) is unconstitutional.
Having rejected the defendant’s other claims on appeal,
we affirm the judgment of conviction.
The judgment is affirmed.
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.
** April 22, 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 § 54-84 (b) provides in relevant part: ‘‘Unless the
accused requests otherwise, the court shall instruct the jury that they may
draw no unfavorable inferences from the accused’s failure to testify. . . .’’
2
There was conflicting evidence as to whether the defendant undressed
the victim or directed her to undress herself.
3
Mucosa is the moist tissue that lines certain parts of the inside of the
body. See National Institutes of Health, United States National Library of
Medicine, MedlinePlus, ‘‘Mucosa’’ (last modified February 26, 2021), avail-
able at https://medlineplus.gov/ency/article/002264.htm (last visited April
19, 2021).
4
Moles testified that an episiotomy is a medical procedure performed by
an obstetrician during childbirth whereby the obstetrician cuts the tissue
between the opening of the vagina and the anus in order to prevent a
tearing injury.
5
General Statutes § 54-86g (b) provides in relevant part: ‘‘In any criminal
prosecution of an offense involving assault, sexual assault or abuse of a
child twelve years of age or younger, the court may, upon motion of the
attorney for any party, order that the following procedures be used when
the testimony of the child is taken . . . (2) an adult who is known to the
child and with whom the child feels comfortable shall be permitted to sit
in close proximity to the child during the child’s testimony, provided such
person shall not obscure the child from the view of the defendant or the
trier of fact . . . .’’
6
During the forensic interview of the victim, the victim indicated that she
referred to genitals as ‘‘privates.’’ A redacted video recording of the interview
was presented to the jury.
7
The prosecutor asked the following questions: ‘‘[W]here was [the defen-
dant] when he put his private in your private?’’ ‘‘[W]hen he put his private
in your private . . . how did it feel?’’ ‘‘Did [the defendant put his private
in your mouth] on the same day he put his private in your private or a
different day?’’ ‘‘When [the defendant] put his private in your private, were
you on your stomach, your back, your side, which?’’ And ‘‘when [the defen-
dant] put his private in your private, did he tell you that this was okay
because he did it to your mom, too?’’
8
The victim stated during the forensic interview that this occurred when
the defendant penetrated her anally.
9
The state acknowledges that defense counsel objected when the victim
responded ‘‘[y]es’’ to the prosecutor’s question, ‘‘[y]ou said he put his private
in your private . . . [i]s that when it happened,’’ but contends that the
claims related to this question are unreviewable because defense counsel
did not object until after the victim answered and did not indicate the basis
for the objection.
10
Although the state cites authority for the proposition that the prosecutor
may ask leading questions of certain state witnesses; see, e.g., Conn. Code
Evid. § 6-8 (b), commentary (under § 6-8 (b) (3), ‘‘the court may allow the
calling party to put leading questions to a young witness who is apprehensive
or reticent’’); ‘‘a prosecutor is not permitted to pose a question that implies
the existence of a factual predicate when the prosecutor knows that no
such factual basis exists.’’ State v. Salamon, 287 Conn. 509, 564, 949 A.2d
1092 (2008). We further note that there are circumstances under which even
an evidentiary error can rise to the level of a constitutional violation. See,
e.g., State v. Turner, 334 Conn. 660, 675, 224 A.3d 129 (2020) (‘‘[a] claim of
evidentiary error . . . premised on a generalized violation of a party’s due
process right is constitutional in nature [only] if the harm resulting from the
error is sufficient to require a new trial’’ (internal quotation marks omitted)).
11
The Appellate Court has observed that ‘‘it is not improper for a prosecu-
tor, when using leading questions to examine a hostile witness, to include
facts in those questions—as to which no other evidence has yet been intro-
duced—as long as the prosecutor has a good faith basis for believing that
such facts are true.’’ State v. Marrero, 198 Conn. App. 90, 105, 234 A.3d 1,
cert. granted, 335 Conn. 961, 239 A.3d 1214 (2020); see also State v. Payne,
233 Ariz. 484, 512, 314 P.3d 1239 (2013) (prosecutor’s use of leading question
was proper when prosecutor had ‘‘a good faith basis for the question’’),
cert. denied, 572 U.S. 1004, 134 S. Ct. 1518, 188 L. Ed. 2d 454 (2014); cf.
Commonwealth v. Wynter, 55 Mass. App. 337, 339, 770 N.E.2d 542 (prosecu-
tor’s use of leading questions was improper when questions had no ‘‘mooring
in evidence in the trial record or a presented good faith basis’’), review
denied, 438 Mass. 1102, 777 N.E.2d 1264 (2002). We similarly conclude that,
if a prosecutor has a good faith basis to believe that evidence of a fact will
be later admitted, courts may consider that circumstance when determining
whether the prosecutor’s reference to the fact while questioning a witness
was improper, even if the reference was not part of a leading question.
Because the question is not before us, we express no opinion on what
other circumstances might constitute a good faith basis for a prosecutor’s
reference to a fact not in evidence while questioning a witness.
12
This court and the Appellate Court have repeatedly concluded that
instructions that deviate from the language of § 54-84 (b) are proper when
the instructions convey the substantive meaning of the statute. See State
v. Sinclair, 197 Conn. 574, 584 n.11, 500 A.2d 539 (1985) (‘‘[i]n cases [in
which] a no unfavorable inferences charge was given, but in language deviat-
ing slightly from the precise wording of the statute, we have examined the
entire charge to see if the words as given were sufficient to satisfy the
statute’’); State v. Boulware, 183 Conn. 444, 447–48, 441 A.2d 1 (1981) (trial
court’s deviation from precise language of § 54-84 (b) was not improper
when ‘‘a reasonable juror hearing [the] instruction within the context of the
entire charge would naturally assume that the defendant’s silence formed
no part of the case’’); State v. Reid, 22 Conn. App. 321, 327, 577 A.2d 1073(‘‘[s]ubstituting ‘adverse’ for ‘unfavorable’ [was] not improper . . . because
the terms are synonymous and such a substitution does not change the
meaning of the sentence’’), cert. denied, 216 Conn. 828, 582 A.2d 207 (1990);
cf. State v. Tatem, 194 Conn. 594, 599–600, 483 A.2d 1087 (1984) (trial
court’s instruction that jury could draw ‘‘ ‘no unreasonable inference’ ’’ from
defendant’s failure to testify was improper because it ‘‘clearly permitted
the jury to draw an unfavorable inference which was also a reasonable
inference’’); State v. Vega, 36 Conn. App. 41, 48, 646 A.2d 957 (1994) (trial
court’s use of word ‘‘unfair’’ instead of ‘‘unfavorable’’ when giving instruction
pursuant to § 54-84 (b) was improper because ‘‘the jury could draw a fair
or just, although unfavorable or adverse, inference from the defendant’s
failure to testify’’). But see State v. Townsend, 206 Conn. 621, 626, 539 A.2d
114 (1988) (‘‘the trial court’s minor deviation from the literal wording of
§ 54-84 (b)’’ was error, but error was harmless because instruction conveyed
‘‘substantive meaning’’ of statute); State v. Cobb, 199 Conn. 322, 324–25,
507 A.2d 457 (1986) (same). We further note that the Connecticut Judicial
Branch’s model criminal jury instructions contain the following instruction:
‘‘The defendant has not testified in this case. An accused person has the
option to testify or not to testify at the trial. (He/she) is under no obligation
to testify. (He/she) has a constitutional right not to testify. You must draw
no unfavorable inferences from the defendant’s choice not to testify.’’
(Emphasis added.) Connecticut Criminal Jury Instructions 2.2-4, available at
https://www.jud.ct.gov/JI/Criminal/Criminal.pdf (last visited April 19, 2021).
Although the model instructions are not binding on this court; see Snell v.
Norwalk Yellow Cab, Inc., 332 Conn. 720, 762, 212 A.3d 646 (2019); the
inclusion of this instruction is at least suggestive that a deviation from the
specific wording of § 54-84 (b) is not automatically plain error.
13
Of course, we do not suggest that the trial court has unlimited discretion
to deviate from the statutory language when giving a no adverse inference
instruction, as long as the instruction is at least as protective as § 54-84 (b).
For example, it would obviously be improper for a trial court to give an
instruction that the fifth amendment prevented the defendant from testifying
or that the jury must draw a favorable inference from the fact that the
defendant did not testify because it implied confidence in the weakness of
the state’s case. We hold only that a deviation from the statutory language
that does not mischaracterize the facts and that conveys the substantive
meaning of the statute is not improper.
14
In his reply brief, the defendant contends for the first time that Casanova
was wrongly decided because to conclude that the legislature wanted trial
courts ‘‘to give an instruction that would suggest to the jury that the defen-
dant had done something wrong by invoking [the right to remain silent]
defies all common sense.’’ ‘‘It is a well established principle that arguments
[cannot] be raised for the first time in a reply brief.’’ (Internal quotation
marks omitted.) State v. Garvin, 242 Conn. 296, 312, 699 A.2d 921 (1997).
In any event, the defendant does not dispute that § 54-84 (b) expressly
authorizes the trial courts to use the word ‘‘failure,’’ and he does not explain
why the legislature would have used that language if, contrary to our decision
in Casanova, its intent was to require trial courts to use more neutral
language at the defendant’s request. If the legislature had wanted to require
trial courts to use more neutral language, we cannot conceive why it would
not have used more neutral language in the statute. Thus, the defendant’s
argument goes more properly to his claim that the statute is unconstitutional,
a claim that was not raised in Casanova.
15
Although unpreserved, this claim is reviewable pursuant to State v.
Golding, supra, 213 Conn. 239–40 (unpreserved claim is reviewable if record
is adequate for review and claim is of constitutional magnitude).
16
The self-incrimination clause of the fifth amendment is made applicable
to state prosecutions through the due process clause of the fourteenth
amendment to the United States constitution. E.g., Malloy v. Hogan, 378
U.S. 1, 6, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964).