State v. Carlos E. ( 2015 )

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STATE OF CONNECTICUT v. CARLOS E.*
(AC 36025)
Lavine, Mullins and Bishop, Js.
Argued February 20—officially released July 21, 2015
(Appeal from Superior Court, judicial district of
Windham, Boland, J.)
Alice Osedach, assistant public defender, with whom
was Jesse Smolin, certified legal intern, for the appel-
lant (defendant).
Melissa Patterson, assistant state’s attorney, with
whom were Patricia M. Froehlich, state’s attorney, and
Andrew J. Slitt, assistant state’s attorney, for the appel-
lee (state).
Opinion
MULLINS, J. The defendant, Carlos E., appeals from
the judgment of conviction of three counts of risk of
injury to a child pursuant to General Statutes § 53-21
(a) (2). On appeal, the defendant claims: (1) he was
prejudiced in his defense when the trial court permitted
the state to file an amended long form information
without demonstrating good cause or that the substitu-
tion would not violate his substantive rights; (2) the
court improperly admitted, without redacting the dou-
ble hearsay contained therein, the defendant’s written
statement to police; and (3) he was deprived of a fair
trial due to prosecutorial impropriety in closing argu-
ment. Although we agree that one of the prosecutor’s
comments was improper, we, nevertheless, conclude
that it was harmless. We reject the defendant’s other
claims and, accordingly, affirm the judgment of the
trial court.
The jury reasonably could have found the following
relevant facts. The victim, who was born in August,
1993, lived with her mother and her two older brothers
in an apartment complex. The victim’s aunt, who was
the sister of the victim’s mother, also lived in the apart-
ment complex with the defendant and their four
children.
In 2003, the victim was in the third grade.1 During
that year, the defendant was unemployed and he stayed
home to care for his children while his wife worked
the 3:30 p.m. to 11:30 p.m. shift at her job. The defendant
also babysat the victim both before school and after
school, until the victim’s mother returned home from
work. On three occasions during 2003, the defendant
pulled down the victim’s pants and underwear and inap-
propriately touched her vaginal area and buttocks, and,
on the third occasion, he also made the victim touch
his erect penis and he rubbed his penis against her leg.
The defendant also threatened the victim, telling her
that he would kill her mother and brothers if she told
anyone about his actions.
The victim remained silent until she was in seventh
grade, which was in 2007, when she told her best friend
about the abuse. Then, several years later, in 2011, when
the victim was seventeen years old, she told her mother
that she was pregnant. Approximately one and one-half
weeks later, the victim disclosed to her mother that
she had been sexually abused by the defendant. The
victim’s mother insisted that the victim discuss these
events with a counselor, who reported the abuse to the
police. The victim then met with the police and gave a
statement. The police, thereafter, questioned the defen-
dant, who also gave a written statement.
The state charged the defendant with three counts
of risk of injury to a child. During trial, the defendant’s
theory of defense was that the victim concocted the
abuse allegations in order to divert focus from her preg-
nancy, and he could not have abused the victim because
he never had babysat the victim when his wife was at
work, but that his wife always had been present when
he babysat the victim. The jury found the defendant
guilty, and the court accepted the verdict and sentenced
the defendant to a total effective sentence of thirteen
years imprisonment, execution suspended after seven
years, with twenty years of probation. This appeal
followed.
I
The defendant claims that the court abused its discre-
tion by permitting the state to file an amended long
form information without demonstrating good cause or
that the substitution would not violate the defendant’s
substantive rights.2 Specifically, he claims: ‘‘The defen-
dant was prejudiced in his defense as a result of a
material variance between the allegations stated in the
January 16, 2013 long form information and the revised
long form information, which was released at the start
of the trial and substantial injustice was done to the
defendant because of the variance.’’ Because this claim
is unpreserved, the defendant requests that we review
his claim pursuant to State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989).
Although the record is adequate for review and the
claim is of constitutional magnitude, the alleged consti-
tutional violation does not clearly exist because the
defendant has failed to demonstrate a denial of due
process. Specifically, the defendant has failed to show
that he suffered prejudice as a result of the amended
information. See State v. Enrique F., 146 Conn. App.
820, 825, 79 A.3d 140 (2013) (improper revised informa-
tion implicates defendant’s right to fair notice of
charges against him, but, on appeal, defendant bears
burden of making specific showing of prejudice in order
to establish due process violation), cert. denied, 311
Conn. 903, 83 A.3d 350 (2014).
The following additional facts and procedural history
inform our review. The prosecutor, on January 16, 2013,
filed a long form information in which he alleged that
the defendant had sexually abused the victim on or
about divers dates in 2004. The defendant then
requested, inter alia, that the time frame be narrowed
to at least state a particular season. The prosecutor
stated that he expected the victim to testify that the
abuse occurred between January, 2004, and the end of
the school year in 2004.3 On February 14, 2013, prior
to the start of evidence, the prosecutor filed an amended
long form information changing the dates of the alleged
abuse from divers dates in 2004, to divers dates in 2003.
The defendant’s attorney stated that his previous objec-
tion still stood. The court permitted the filing of the
amended information. Thereafter, the jury was sworn,
and the court read the amended information to the jury,
along with its preliminary instructions. The defendant
claims that the court abused its discretion by allowing
the state to file the amended information without estab-
lishing good cause or that the defendant’s substantive
rights would not be violated by the amendment.
‘‘Our standard of review and the requirements for
amending the information are well established. On
appeal, our [standard of review] of the court’s decision
to permit an amendment to the information is one of
abuse of discretion. . . . Before a trial begins, the state
has broad authority to amend an information . . . .
Once the trial has started, however, the prosecutor is
constrained by the provisions of Practice Book § 36-
18. . . . If the state seeks to amend charges after the
commencement of trial, it shoulders the burden of
establishing that no substantive rights of the defendant
would be prejudiced. . . . Like any other party peti-
tioning the court, the state must demonstrate the basis
for its request. Under [Practice Book § 36-18], the state
must show: (1) good cause for the amendment; (2) that
no additional or different offense is charged; and (3)
that no substantive right of the defendant will be preju-
diced. . . . [When the] defendant does not allege that
the amended information charged an additional or dif-
ferent offense . . . the only issues are whether the
state had good cause to amend the information and
whether [the defendant] suffered prejudice.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Enrique F., supra, 146 Conn. App. 824.
‘‘[An] improper amendment of the information impli-
cates the defendant’s constitutional right to fair notice
of the charges against him. . . . At trial, the state has
the burden of proving that amending the information
does not prejudice the defendant’s substantive rights.
. . . On appeal, however, the defendant bears the bur-
den of making a specific showing of prejudice in order
to establish that he was denied the right of due process
of law. . . . In the prejudice analysis, the decisive ques-
tion is whether the defendant was informed of the
charges with sufficient precision to be able to prepare
an adequate defense. . . . If the defendant has not
asserted an alibi defense and time is not an element of
the crime, then there is no prejudice when the state
amends the information to amplify or to correct the time
of the commission of the offense . . . . Ultimately, if
the amendment has no effect on the defendant’s
asserted defense, there is no prejudice.’’ (Citations omit-
ted; internal quotation marks omitted.) Id., 825–26.
In this case, it does not appear that the state
attempted to establish to the trial court that it had good
cause to submit an amended information after the start
of trial or that the court explicitly found good cause to
permit such an amendment.4 See id., 824 (‘‘[t]o show
good cause to amend, the state must articulate a reason
why the amendment is required’’ [emphasis added]).
Nevertheless, we must consider whether the defendant
has established the existence of a due process violation
by demonstrating that he suffered prejudice as a result
of the amendment. The defendant contends that he
suffered prejudice because ‘‘[h]ad the defense been
informed earlier of the date change, the defendant
would have had more time to prepare the witness [his
wife] to speak about 2003 and refute the fact that any
allegations occurred during that year. . . . At the time
of the state’s amendment, the defendant had only pre-
pared a defense for the time frame of 2004 . . . .’’ (Cita-
tion omitted.) He also argues: ‘‘If the defendant had fair
notice of the dates alleged, he would have been able
to establish a defense that included that time frame and
created a reasonable doubt in the minds of the jurors.’’
We are not persuaded.
The defendant’s relevant theory of defense was that
he never babysat the victim without his wife being pre-
sent in the home and that they had watched the victim
only for a brief period of time, namely, approximately
ten days during her winter vacation from school in
December, 2004. The defendant did not testify at trial.
He did, however, present the testimony of his wife and
two of his children.
The defendant’s wife testified, in relevant part, that
she and the defendant babysat the victim only in the
last week of 2004, that she was there the entire time,
and that the defendant never was alone with the victim.
One of the defendant’s children, who was seventeen at
the time of trial, testified, however, that in 2003, the
defendant babysat the victim after school, when she
got off the bus. He stated that the defendant never was
alone with the victim or with any of the children, and
that his mother, the defendant’s wife, was home with
them. Another of the defendant’s children testified that
his father babysat the victim after school, but that his
mother always was present.
The defendant argues on appeal that the extent of
the prejudice caused by the amended information was
not fully known until the state called the human
resource person from his wife’s employer, who testified
that the defendant’s wife usually worked from 3:30 p.m.
to 11:30 p.m. during 2003. Appellate counsel contended
during appellate oral argument that the defendant’s wife
worked different hours in 2004 and that she was home
when the children returned from school each day. The
record, however, does not substantiate this contention.
Although the defendant correctly states that the
record demonstrates that his wife worked 3:30 p.m. to
11:30 p.m. during 2003, her attendance records for 2004
and 2005 also were admitted as full exhibits for the
defendant during trial. These records clearly show that
the defendant’s wife worked the same hours, 3:30 p.m.
to 11:30 p.m., during almost all of 2004; in 2005 she
worked first shift, which was 7:30 a.m. to 3:30 p.m.
Additionally, the defendant’s wife specifically testified
that she worked second shift, 3:30 p.m. to 11:30 p.m.,
throughout 2003 and into the last week of December,
2004, when she changed to first shift. The defendant
has failed to demonstrate a denial of due process by
showing that he was prejudiced by the filing of an
amended information on the first day of evidence.
Accordingly, his claim fails under the third prong of
Golding.
II
The defendant’s next claim is that the court improp-
erly admitted his statement to police without redacting
the double or triple hearsay contained therein. He
argues that the ‘‘state presented evidence that was inad-
missible under §§ 8-1, 8-2 and 8-7 of the Connecticut
Code of Evidence, that included the defendant recalling,
not his own thoughts or feelings but, what his wife told
him that [the victim] had told her mother [namely] that
he inappropriately touched [the victim] in her private
parts. Thus, it is double hearsay since the defendant
quoted something his wife told him that she heard from
[the victim’s] mother, who heard it from [the victim].’’
The defendant further argues that he was harmed by
the court’s ruling because there can be ‘‘no doubt that
the jury was substantially swayed by the inclusion of
this double hearsay and the state’s emphasis and use
of it in closing argument.’’
The state argues that the court properly admitted the
statement without redaction because the single sen-
tence sought to be excluded was not hearsay. The state
also contends that the sentence was evidence of the
defendant’s consciousness of guilt. Finally, the state
argues that, even if the court erred in not redacting
the statement, the defendant cannot demonstrate harm
because this single sentence was cumulative of the
remainder of the statement. We conclude that even if
the court improperly admitted the statement without
redaction, the defendant has failed to demonstrate harm
because the contested portion of the statement merely
was cumulative of other portions of the statement.
The following additional facts are relevant to our
review. During the testimony of Trooper Pedro Nunez
of the Connecticut State Police, the state sought to
admit into evidence the written statement of the defen-
dant. The defendant objected to one sentence in the
statement on hearsay grounds.5 That sentence provided:
‘‘I remember around that time my wife . . . came up
to me and told me that [the victim] told her mother
. . . that I inappropriately touched her in her private
parts.’’ The prosecutor argued that this sentence was
not hearsay because it was not being offered for the
truth of the matter asserted, and that he actually
‘‘believe[d] the defendant made that up to protect him-
self.’’ He further argued that the sentence was incrimi-
nating on its face, it was untrue, it was not being offered
for its truth, and, therefore, it was not hearsay. The
court overruled the defendant’s objection and admitted
the statement in its entirety.
‘‘The trial court’s ruling on the admissibility of evi-
dence is entitled to great deference. . . . [T]he trial
court has broad discretion in ruling on the admissibility
. . . of evidence. . . . The trial court’s ruling on evi-
dentiary matters will be overturned only upon a show-
ing of a clear abuse of the court’s discretion. . . . We
will make every reasonable presumption in favor of
upholding the trial court’s ruling, and only upset it for
a manifest abuse of discretion. . . . Moreover, eviden-
tiary rulings will be overturned on appeal only where
there was an abuse of discretion and a showing by the
defendant of substantial prejudice or injustice. . . .
This deferential standard is applicable to evidentiary
questions involving hearsay, generally . . . and to
questions relating to prior consistent statements, specif-
ically.’’ (Citations omitted; emphasis added; internal
quotation marks omitted.) State v. Hines, 243 Conn.
796, 801–802, 709 A.2d 522 (1998).
‘‘[T]o the extent that we assume impropriety in the
trial court’s evidentiary [rulings], [w]hen an improper
evidentiary ruling is not constitutional in nature, the
defendant bears the burden of demonstrating that the
error was harmful. . . . [T]he proper standard for
determining whether an erroneous evidentiary ruling
is harm[ful] should be whether the jury’s verdict was
substantially swayed by the error.’’ (Internal quotation
marks omitted.) State v. Paul B., 315 Conn. 19, 30–31,
105 A.3d 130 (2014). ‘‘It is well recognized that any error
in the admission of evidence does not require reversal
of the resulting judgment if the improperly admitted
evidence is merely cumulative of other validly admitted
[evidence].’’ (Internal quotation marks omitted.) State
v. Dehaney, 261 Conn. 336, 364, 803 A.2d 267 (2002),
cert. denied, 537 U.S. 1217, 123 S. Ct. 1318, 154 L. Ed.
2d 1070 (2003).
The defendant’s statement, without the portion
sought to be redacted, provided: ‘‘I have been living
in [a certain area] for approximately [eighteen] years.
Approximately [eight] or [nine] years ago, I resided at
[a certain address] with my wife [and four children].
At that time, I was unemployed and stayed home cook-
ing and watching the children. I remember around that
time watching my wife’s niece [the victim] from about
3:30 p.m. to 4:00 p.m. until her mother . . . would get
home from work. [The victim] would also come over
in the mornings and stay with [two of my children] until
the school bus came to pick them up. . . . I told my
wife . . . and [the victim’s mother] that she would
have to find another babysitter because I didn’t want
any problems. I can’t think of any reason that [the vic-
tim] would accuse me of ever touching her private area.
When I learned that she accused me of touching her, I
was upset and told [my wife and the victim’s mother]
that I refuse to watch her anymore.’’
It is clear from reading the defendant’s statement
without the contested sentence, that the defendant
stated that he had watched the victim both in the morn-
ing and after school, and that he stopped watching her
because he was upset that she had accused him of
touching her. The challenged portion of the statement
added nothing particularly relevant to the state’s case
that was not already contained in the remainder of the
statement. On this basis, we conclude that the defen-
dant has failed to demonstrate that the admission of
the unredacted statement was harmful. See State v.
Dehaney, supra, 261 Conn. 352 (despite ‘‘affidavit
improperly [being] admitted because it did not satisfy
the hearsay state of mind exception . . . [i]ts errone-
ous admission . . . was harmless because it was
cumulative of other properly admitted evidence’’).
III
The defendant claims that ‘‘[t]he prosecutor made
numerous improper statements during closing [rebut-
tal] argument that were individually and cumulatively
so egregious that they deprived him of his constitutional
right to a fair trial pursuant to the fifth and fourteenth
amendments [to] the United States constitution, and
article first, § 8, of the constitution of Connecticut.’’6
The defendant contends that the prosecutor, during
rebuttal argument, improperly (1) appealed to the pas-
sions and emotions of the jurors through the excessive
use of sarcasm, (2) repeatedly interjected his own opin-
ions, especially on the issue of witness credibility, and
(3) argued facts not in evidence. The state argues that,
when taken as a whole and viewed in context, there is
nothing improper in the prosecutor’s comments. After
setting forth our standard of review, we will consider
each of these alleged areas of impropriety in turn.
‘‘[P]rosecutorial [impropriety] of a constitutional
magnitude can occur in the course of closing argu-
ments. . . . In determining whether such [an impropri-
ety] has occurred, the reviewing court must give due
deference to the fact that [c]ounsel must be allowed a
generous latitude in argument, as the limits of legitimate
argument and fair comment cannot be determined pre-
cisely by rule and line, and something must be allowed
for the zeal of counsel in the heat of argument. . . .
Thus, as the state’s advocate, a prosecutor may argue
the state’s case forcefully, [provided the argument is]
fair and based upon the facts in evidence and the reason-
able inferences to be drawn therefrom.’’ (Internal quota-
tion marks omitted.) State v. Miller, 128 Conn. App.
528, 535, 16 A.3d 1272, cert. denied, 301 Conn. 924, 22
A.3d 1279 (2011).
‘‘In analyzing claims of prosecutorial impropriety, we
engage in a two step analytical process. . . . We first
examine whether prosecutorial impropriety occurred.’’
(Internal quotation marks omitted.) State v. Chase, 154
Conn. App. 337, 341, 107 A.3d 460 (2014), cert. denied,
315 Conn. 925, 109 A.3d 922 (2015). In conducting such
an examination, we take into account whether the
defendant objected to the allegedly improper comment.
Where, as here, ‘‘the defendant failed to object at trial
to the remarks that form the basis of his appeal, our
Supreme Court has explained that a defendant’s failure
to object at trial to each of the occurrences that he
now raises as instances of prosecutorial impropriety,
though relevant to our inquiry, is not fatal to review of
his claims. . . . This does not mean, however, that the
absence of an objection at trial does not play a signifi-
cant role in the determination of whether the challenged
statements were, in fact, improper. . . . To the con-
trary, 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 omitted.) Id., 343–44.
‘‘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. . . .
An appellate court’s determination of whether any
improper conduct by the prosecutor violated the defen-
dant’s right to a fair trial is predicated on the factors
established in State v. Williams, 204 Conn. 523, 540,
529 A.2d 653 (1987). Those factors include the extent
to which the [impropriety] was invited by defense con-
duct or argument . . . the severity of the [impropriety]
. . . the frequency of the [impropriety] . . . the cen-
trality of the [impropriety] to the critical issues in the
case . . . the strength of the curative measures
adopted . . . and the strength of the state’s case. . . .
[If] 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 . . . that the remarks were
improper . . . .’’ (Citations omitted; internal quotation
marks omitted.) State v. Chase, supra, 154 Conn.
App. 341–42.
A
The defendant claims that the ‘‘prosecutor appealed
to the passions and emotions of the jurors through his
repeated and excessive use of sarcasm.’’ He argues that
these sarcastic statements and phrases were made only
to denigrate the defendant and his main witness. We
are not persuaded.
‘‘[W]e have recognized that the excessive use of sar-
casm may improperly influence a jury. . . . [N]eedless
sarcasm [is] inconsistent with [a] state’s attorney’s pro-
fessional responsibility . . . . Although we neither
encourage nor condone the use of sarcasm, we also
recognize that not every use of rhetorical language or
device is improper. . . . The occasional use of rhetori-
cal devices is simply fair argument. . . . [S]ome use
of sarcastic and informal language, when intended to
forcefully criticize a defense theory on the permissible
bases of the evidence and the common sense of the
jury, is not necessarily improper. . . . Further, it is
important to note that defense counsel’s failure to
object to allegedly sarcastic and denigrating comments
. . . as in the present case, suggests that counsel did
not believe the alleged improprieties were unfair in light
of the record at that time.’’ (Citations omitted; internal
quotation marks omitted.) State v. Grant, 154 Conn.
App. 293, 320–21, 112 A.3d 175 (2014), cert. denied, 315
Conn. 928, 109 A.3d 923 (2015).
The defendant argues that the following statement
made by the prosecutor was overly sarcastic. ‘‘So let
me see, if I get this straight. The entire defense case is
based on a couple of inconsistent memories that the
victim had in the case. Number one, that she—she can’t
remember whether—or her memory about whether she
had the good-touch, bad-touch conversation with her
mother happened or not. And, number two, she didn’t
correct the date of birth the Trooper Nunez put on her
statement. . . . So she didn’t correct those two things
or her memory was inconsistent about that, so that’s—
so that’s the problem with her testimony. That’s what
you’re supposed to believe.’’ Additionally, the defendant
contends that the prosecutor’s repeated use of the
phrase ‘‘star witness’’ to describe the defendant’s wife,
who testified on the defendant’s behalf, also was unduly
sarcastic. He contends that the combination of these
sarcastic remarks amounted to prosecutorial impropri-
ety. We disagree.
Although we do not condone the use of sarcasm by
a prosecutor, we, nevertheless, generally do not con-
sider a limited use to rise to the level of impropriety.
Here, the first comments by the prosecutor of which
the defendant complains, namely, the prosecutor’s use
of ‘‘let me see if I get this straight’’ and ‘‘that’s what
you’re supposed to believe,’’ were an attempt by the
prosecutor to call into question a theory of defense
raised by defense counsel during closing argument,
namely, that the victim was not credible. See State v.
Grant, supra, 154 Conn. App. 324. The comments were
not an attempt to disparage the defendant, but, rather,
were comments meant to suggest that the jury should
not believe that the victim was not credible simply
because she may have forgotten two minor details. Use
of such a rhetorical device is not improper. Id. We also
conclude that the prosecutor’s use of the phrase ‘‘star
witness’’ on three occasions to describe the defendant’s
wife did not rise to the level of impropriety. Indeed, in
point of fact, the defendant’s wife was the key witness
the defendant presented to exculpate himself for these
crimes by showing that she always babysat with him
and that he could not have committed these crimes
against his wife’s niece while his wife was present. Thus,
her testimony was the basis on which the defendant’s
defense principally relied. Highlighting her as the ‘‘star
witness’’ simply was factually accurate. Furthermore,
even if the term was questionable in terms of being
sarcastic, it was not only based on the evidence pre-
sented but it also was not excessive, nor did it denigrate
the defendant or his witness.
B
The defendant next claims that ‘‘[p]rosecutorial
impropriety occurred when the prosecutor repeatedly
interjected his opinion in his [rebuttal] argument.’’ He
argues that the prosecutor improperly expressed his
opinion concerning the victim’s credibility by telling
the jury that the victim had no motive to lie, that she
was telling the truth, that she did the right thing by
coming forward, and that she was looking for justice
when she came forward. Additionally, the defendant
contends that the prosecutor improperly told the jury
that the victim sacrificed herself by not coming forward
earlier. Finally, the defendant argues that the prosecu-
tor improperly expressed his opinion concerning the
defendant’s guilt when he told the jury that parts of the
defendant’s sworn statement to the police were not
true. We are not persuaded that any of these comments
were improper.
‘‘A prosecutor may not express his own opinion,
directly or indirectly, as to the credibility of the wit-
nesses. . . . Nor should a prosecutor express his opin-
ion, 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. . . . It is not, however, improper for the pros-
ecutor to comment upon the evidence presented at trial
and to argue the inferences that the jurors might draw
therefrom . . . .’’ (Citation omitted; internal quotation
marks omitted.) State v. Luster, 279 Conn. 414, 435, 902
A.2d 636 (2006).
Additionally, our Supreme Court ‘‘previously has con-
cluded that the state may argue that its witnesses testi-
fied credibly, if such an argument is based on
reasonable inferences drawn from the evidence. See
State v. Burton, 258 Conn. 153, 169–70, 778 A.2d 955
(2001). Specifically, the state may argue that a witness
has no motive to lie. Id., 170; see also State v. Bermudez,
274 Conn. 581, 592–93, 876 A.2d 1162 (2005) (prosecutor
may argue from evidence that state’s witnesses had no
motive to lie), after remand, 95 Conn. App. 577, 897
A.2d 661 (2006); State v. Ancona, [270 Conn. 568, 607,
854 A.2d 718 (2004), cert. denied, 543 U.S. 1055, 125 S.
Ct. 921, 160 L. Ed. 2d 780 (2005)] (‘[i]t is permissible
for a prosecutor to explain that a witness either has or
does not have a motive to lie’); State v. Ceballos, 266
Conn. 364, 380–81, 832 A.2d 14 (2003) (state’s closing
argument was not improper because it discussed com-
plainant’s lack of motive to lie). In addition, jurors, in
deciding cases, ‘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 conclu-
sion. . . . Therefore, it is entirely proper for counsel
to appeal to a jury’s common sense in closing remarks.’
. . . State v. Ceballos, supra, 402; see also State v.
Rogelstad, 73 Conn. App. 17, 30, 806 A.2d 1089 (2002).’’
State v. Warholic, 278 Conn. 354, 365, 897 A.2d 569
(2006).
A review of each of the challenged comments involv-
ing the victim, reveals that they were tied to the evi-
dence and the reasonable inferences to be drawn
therefrom. Additionally, contrary to the defendant’s
argument, it is not improper for the prosecutor to out-
line the evidence and its reasonable inferences for the
jury and then to explain, on the basis of such evidence,
that the witness had no motive to lie. See id.
We next consider the prosecutor’s comments regard-
ing the defendant’s written statement to police and
whether these comments amounted to an expression
of opinion concerning the defendant’s guilt. The specific
comments of which the defendant complains are as
follows: ‘‘So if you believe [the defendant’s] statement,
we’re expected to believe that both [the victim’s]
mother and [the victim’s] aunt knew about this accusa-
tion in 2003 and did nothing about it for eight years.
That’s not true. It doesn’t make any sense that he would
say—the reasons he says this is because he’s trying to
save himself. But that never happened. That conversa-
tion never happened. . . . There was no accusation
made in 2003—2003 or 2004. That’s not why he stopped
watching the kids.’’ The defendant also expresses con-
cern about the following: ‘‘[The defendant] admits he’s
home watching his children—his own children, plus
[the victim]. That’s in his statement. Contrary, his wife
gets up here and says something completely different.
And, again, [the defendant’s statement] says around that
time his wife told him about the accusation. We know
that’s just not true. It doesn’t make any sense. You folks
are intelligent people; you can see through that.’’
The defendant contends that ‘‘[b]y arguing that parts
of the defendant’s sworn statement were not true, the
prosecutor was in essence arguing that the defendant
was guilty.’’
After reviewing these comments and considering
them in the context in which they were made, we con-
clude that they were based on the evidence, especially
the contradiction between the defendant’s sworn state-
ment and the testimony of the defendant’s wife, as well
as the other trial witnesses, and that the comments did
not express the prosecutor’s personal opinion on the
defendant’s guilt. The prosecutor merely pointed out
the contradiction between the defendant’s sworn state-
ment and other evidence, including the testimony of
the defendant’s own witness, and asked the jury to draw
reasonable inferences from that evidence.
C
The defendant also claims that the prosecutor
improperly argued facts not in evidence. He argues:
‘‘The prosecutor told the jury ‘and by the way, she [the
victim] wasn’t pregnant in junior high school when she
told—when she told her friend . . . [about the
assaults].’ There was no evidence introduced by either
party regarding whether [the victim] was pregnant in
junior high school.’’ The state argues that this statement
was based on the evidence and the reasonable infer-
ences that could be drawn therefrom. We conclude that
the statement was improper.
1
‘‘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, which is not the subject of proper
closing argument.’’ (Internal quotation marks omitted.)
State v. Taft, 306 Conn. 749, 766–67, 51 A.3d 988 (2012).
‘‘[T]he privilege of counsel in addressing the jury . . .
must never be used as a license to state, or to comment
upon, or even to suggest an inference from, facts not
in evidence, or to present matters which the jury [has]
no right to consider.’’ (Internal quotation marks omit-
ted.) State v. Stevenson, 269 Conn. 563, 587, 849 A.2d
626 (2004).
To put the defendant’s claim in proper context, we
set forth the relevant portion of his attorney’s closing
argument and the prosecutor’s response thereto. During
closing argument, defense counsel argued that this case
was about a scared seventeen year old girl who was
afraid because she was telling her mother that she was
pregnant. He stated that the case was ‘‘about a seven-
teen year old pregnant girl who tells a story about a
nine year old girl.’’ Counsel also stated: ‘‘[S]he told her
mother about the pregnancy. That’s when she tells her
mother about all of this. This is when she tells her this
story about what happened years ago when she came
out to her mother about her pregnancy. That is crucial.
She’s testified that she knew for about a week and a
half that she was pregnant before she told her mother
about this. She was scared. She was scared because
she was pregnant. She was scared because she was
telling her mother that she was pregnant. She came up
with the story to draw attention from her pregnancy.
And guess what, it worked.’’
In rebuttal argument, the prosecutor responded to
this argument by discussing testimony that had been
presented concerning delayed disclosures by childhood
victims and testimony that older children normally tell
their peers about such abuse. He then explained that
in this case, the victim eventually told her best friend
about the abuse when they were in junior high school.
The prosecutor then stated: ‘‘And by the way, [the vic-
tim] wasn’t pregnant in junior high school when she
told—when she told her friend . . . . The defense
wants you to think that the entire motivation for this
fabrication was so that she could deflect the attention
off of her pregnancy, which, by the way, her mother
testified that she was fully supportive of and there was
no issue with her being pregnant. But this [flies] in the
face of that because she told her [friend] in seventh
grade . . . . She wasn’t pregnant then.’’
The defendant complains that there is absolutely no
evidentiary basis for the prosecutor’s statement that
the victim was not pregnant in seventh grade. The state
responds: ‘‘[T]here was no evidence that the victim was
pregnant in seventh grade when she first disclosed the
abuse to her friend, and it was a reasonable inference
that the victim’s one year old child was the result of
the 2011 pregnancy. Thus, the argument was proper.’’
(Emphasis added.) We disagree with the state’s
response for two reasons.
First, the prosecutor’s argument was not tied to the
evidence. Rather, it was a factual assertion that the
victim was not pregnant in junior high school when
there was not a scintilla of evidence to support such
an assertion. Second, the state’s argument, that because
there was no evidence that she was pregnant in junior
high school, it essentially proves that she was not preg-
nant in junior high school, simply is illogical. Accord-
ingly, we conclude that the statement was improper.
2
Because we conclude that the aforementioned com-
ment was improper, we next must consider whether
the comment deprived the defendant of a fair trial.
In the present case, the defendant’s attorney did not
object, request a curative instruction or move for a
mistrial on the basis of the prosecutor’s improper com-
ment. See State v. Jordan, 314 Conn. 89, 114, 101 A.3d
179 (2014) (‘‘[w]hen defense counsel does not object,
request a curative instruction or move for a mistrial,
he presumably does not view the alleged impropriety
as prejudicial enough to jeopardize seriously the defen-
dant’s right to a fair trial’’ [internal quotation marks
omitted]). Furthermore, examining the Williams fac-
tors as a whole, we are not persuaded that they weigh
in the defendant’s favor. Although the comment was
not invited by defense counsel, the comment did not
amount to severe impropriety, which is evinced by
defense counsel’s lack of objection or request for any
curative measure. The impropriety was not frequent,
as it was confined to a brief comment during rebuttal
argument. Moreover, whether the victim was pregnant
in junior high school when she told her friend about the
abuse was not central to the critical issues in this case.
Finally, with regard to the final Williams factor, the
strength of the state’s case, ‘‘[o]ur Supreme Court has
noted that a child sexual abuse case lacking conclusive
physical evidence, when the prosecution’s case rests
on the credibility of the victim . . . is not particularly
strong . . . . At the same time, [t]he state’s evidence
does not need to be overwhelming to support a conclu-
sion that prosecutorial impropriety did not deprive the
defendant of a fair trial.’’ (Citation omitted; internal
quotation marks omitted.) State v. Chase, supra, 154
Conn. App. 353. Here, although the state’s case was
not particularly strong, it was not so weak as to be
overshadowed by a single improper comment that had
no evidentiary basis. On the basis of the foregoing, we
conclude that the defendant was not deprived of the
right to a fair trial on the basis of prosecutorial impro-
priety.
The judgment is affirmed.
In this opinion the other judges 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 use the defendant’s full name or to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
1
The facts also demonstrate that the victim repeated third grade.
2
The sixth amendment to the United States constitution provides in rele-
vant part: ‘‘In all criminal prosecutions, the accused shall enjoy the right
. . . to be informed of the nature and cause of the accusation . . . .’’
3
The defendant also had filed a request for a bill of particulars. The court
denied that request, stating that because the allegations stemmed from
conduct many years ago dealing with a child victim, who may have difficulty
recalling the precise time frame, the disclosure of the calendar year in which
the abuse was alleged to have occurred was sufficient. The defendant,
although making some minor comments in his brief about that ruling, has
not set forth a separate claim that the court abused its discretion in denying
his request for a bill of particulars.
4
The state contends that the court implicitly found good cause and did
not state it for the record because the defendant did not object on that
ground to the amendment. We are not persuaded by this contention. The
record does not demonstrate any attempt by the state to articulate good
cause for the amendment, and the court did not discuss or mention good
cause to permit the amendment. Nevertheless, because the defendant, on
appeal, has the burden of proving prejudice in order to establish a due
process violation, we must examine whether he met this burden.
5
The defendant also objected on the ground that this portion of his state-
ment, if not hearsay, was improperly being offered by the prosecutor as
impeachment evidence before the defendant had even decided whether he
would testify on his own behalf. The defendant has not briefed the merits
of this objection on appeal.
6
Although the defendant brings his claim under the United States constitu-
tion and article first, § 8, of the Connecticut constitution, he has not con-
ducted an independent analysis under the Connecticut constitution. We,
therefore, deem any separate state constitutional claim to be abandoned.
See State v. Francis, 228 Conn. 118, 122 n.3, 635 A.2d 762 (1993).
.