State v. Carrillo ( 2021 )

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STATE OF CONNECTICUT v. GILBERTO
PATRICIO CARRILLO
(AC 43529)
Bright, C. J., and Clark and Eveleigh, Js.
Syllabus
The defendant, who had been convicted of the crimes of sexual assault and
risk of injury to a child, appealed to this court from the judgment of
the trial court, claiming that he was deprived of his right to a fair trial
as a result of certain improprieties the prosecutor committed during
closing and rebuttal arguments to the jury. The defendant had engaged
in various incidents of sexual behavior with his girlfriend’s ten year old
daughter who, thereafter, underwent a forensic interview by a single
social worker. The defendant, who did not object at trial to any of the
alleged improprieties, claimed that the prosecutor argued to the jury
facts that were not in evidence, vouched for the credibility of the state’s
witnesses, appealed to the emotions of the jurors, and impugned the
integrity and institutional role of defense counsel. Held:
1. The prosecutor made certain comments to the jury that were not supported
by the record and were unconnected to the issues in the case:
a. Although it was not improper for the prosecutor to state to the jury that
the procedure of having one social worker conduct a forensic interview
of the minor child was designed to achieve the most unbiased and reliable
interview of the child and that a child who talks with a medical provider
will provide accurate information, the prosecutor improperly stated that
the child could not have a point of reference as to certain sexual experi-
ences due to her age, as that comment was not supported by the evidence
and concerned issues that were for the jury to determine; moreover,
the prosecutor’s bald assertion that fathers do not sexually abuse their
children amounted to improper, unsworn evidence that was unsupported
by the record, as it did not ask the jurors to utilize their common sense
to assess or draw reasonable inferences from the evidence, and his
statement that the social worker testified that it was not unusual for a
child to sleep in the same bed with her noncustodial parent during
visitation also was improper, as it was unsupported by the record.
b. The defendant’s assertion that the prosecutor improperly vouched for
the minor child’s credibility was unavailing: the prosecutor properly
invited the jury to draw reasonable inferences from the evidence when
he stated that any consistencies in the witnesses’ testimony clearly fell
under the category of an innocent lapse in memory rather than an inten-
tional and malicious attempt to mislead, as his comment was not directed
toward the child’s testimony but to that of all the witnesses and was
made in the context of reminding the jurors that it was their role to
determine the credibility of the witnesses; moreover, the prosecutor’s
statement that a child, like an adult, would give medical personnel accu-
rate information was based on a reasonable inference from the child’s
testimony about the effect of the defendant’s conduct on the growth of
her breasts.
c. Although the prosecutor improperly remarked that the minor child
was bilingual and was trying to learn a language, as well as keeping her
own culture, which had no connection to the issues in the case, the
defendant’s claims that the prosecutor improperly appealed to the jurors’
emotions were unavailing: the prosecutor’s invitation to the jurors to
consider whether they would want their children or grandchildren to go
through multiple rounds of interviews if they had been sexually abused
drew from the evidence and invited the jurors, who had heard the child’s
experience, to draw from their common sense and experience; moreover,
although the prosecutor improperly invited the jurors to draw an infer-
ence that was based on facts that were not in evidence when he asked
them to consider whether their children or grandchildren would have
had any frame of reference for understanding that something sexual
such as having their nipples sucked was improper, it did not suggest
that the jurors should do so on the basis of emotion, and the prosecutor’s
comment that sexual abuse goes against the core of our being to protect,
nurture and raise children appropriately was in response to defense
counsel’s statements to the jury that the case involved facts and crimes
that were outside the bounds of morality.
d. The prosecutor’s statement that defense counsel ‘‘bashed’’ the wit-
nesses during cross-examination did not overstep the bounds of permissi-
ble argument, as the prosecutor’s statement was based on the evidence
and the state’s burden to prove its case, and was not a suggestion that
defense counsel acted improperly: although this court did not condone
the use of the word bash, its use was not intended to mislead the jury
but, rather, described what the prosecutor viewed as defense counsel’s
emphasis during closing argument on his assertion that the state failed
to meet its burden of proof because its witnesses were unreliable; more-
over, the prosecutor stated that defense counsel had a different read on
the case, which was not unusual, because that was counsel’s job, and
the prosecutor argued that the jurors should rely on the witnesses,
despite defense counsel’s criticisms; furthermore, the prosecutor put his
comments to the jury in context when he stated that, although the jury
may not have liked how counsel tried the case, the bottom line was
whether the elements of the crimes were proven beyond a reasonable
doubt.
2. The improprieties committed by the prosecutor were not so egregious
that, in light of the entire trial, they denied the defendant his due process
right to a fair trial: the improprieties, all of which were single, isolated
statements, were not invited by defense counsel, whose failure to object
to the alleged improprieties when they occurred, to challenge them
during his closing argument to the jury or to request a curative instruction
from the court highlighted that he presumably did not view the impropri-
eties as so prejudicial as to jeopardize seriously the defendant’s right
to a fair trial; moreover, although two of the prosecutor’s improper
statements implicated the minor child’s credibility, which was central
to the case, the impact of their brief and isolated nature was minimal,
and the prosecutor reminded the jurors on several occasions that it was
their responsibility to assess the witnesses’ credibility, which was the
critical issue in the case; furthermore, the court’s extremely thorough
jury instructions were sufficiently curative; additionally, the state’s case
was not weak due to the lack of conclusive physical evidence, as the
child’s testimony provided very detailed descriptions of the defendant’s
conduct and was consistent with the testimony of the other witnesses
as well as with the video of her forensic interview.
Argued September 14—officially released December 14, 2021
Procedural History
Substitute information charging the defendant with
two counts each of the crimes of sexual assault in the
third degree, sexual assault in the fourth degree and
risk of injury to a child, brought to the Superior Court
in the judicial district of New Haven, geographical area
number seven, and tried to the jury before K. Murphy,
J.; verdict and judgment of guilty, from which the defen-
dant appealed to this court. Affirmed.
John R. Weikart, assigned counsel, with whom was
Emily Graner Sexton, assigned counsel, for the appel-
lant (defendant).
Nancy L. Chupak, senior assistant state’s attorney,
with whom, on the brief, were Patrick J. Griffin, state’s
attorney, and James R. Dinnan, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
EVELEIGH, J. The defendant, Gilberto Patricio Car-
rillo, appeals from the judgment of conviction, rendered
after a jury trial, of two counts of sexual assault in the
third degree in violation of General Statutes § 53a-72a
(a) (1) (A),1 two counts of sexual assault in the fourth
degree in violation of General Statutes § 53a-73a (a) (1)
(A),2 and two counts of risk of injury to a child in
violation of General Statutes § 53-21 (a) (2).3 On appeal,
the defendant claims that he is entitled to a new trial
on the grounds that the prosecutor, in his closing and
rebuttal arguments to the jury, violated the defendant’s
right to a fair trial by improperly (1) referring to facts
not in evidence, (2) vouching for the credibility of wit-
nesses, (3) appealing to the passions, emotions, and
prejudices of the jurors, and (4) impugning the integrity
and institutional role of defense counsel. We conclude
that, although some of the prosecutor’s comments con-
stituted improprieties, nevertheless, those improprie-
ties did not deprive the defendant of his due process
right to a fair trial. Accordingly, we affirm the judgment
of conviction.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
The victim, M,4 is the daughter of the defendant’s girl-
friend. In the spring and summer of 2017, when M was
ten years old, she lived with her mother, the defendant,
and her one year old sister, who is the daughter of the
defendant and M’s mother. M spent weekends with her
biological father.
The defendant looked after M and her sister after
M returned home from school because the children’s
mother was usually still at work. During the spring and
summer of 2017, while M’s mother was working, the
defendant touched M’s breasts with his hands and
mouth on several occasions. M testified at trial that, on
one occasion, the defendant pushed her down onto her
bed, held her hands over her head, pulled up her shirt
and bra, and touched her breast, which M testified ‘‘hurt
a little.’’ On another occasion, M was lying on the living
room sofa, and the defendant laid down next to her,
pulled her hands over her head, raised her shirt and
bra, and used his mouth to suck the nipples of her
breasts. On a third occasion, the defendant again used
his mouth to suck the nipples of her breasts as he held
her hands above her head. The defendant told her that
this would make her breasts grow.5 M testified that the
defendant touched her breasts ‘‘a lot’’ during the spring
and summer of 2017. Specifically, that he sucked her
nipples ‘‘a few times’’ but not as many times as he
touched her breasts with his hands.
M told her mother about the defendant’s behavior
after M became angry at the defendant for ordering her
around the house. Her mother told M that if he touched
M’s breasts again, they would report the defendant to
the police. After this conversation, the defendant stopped
touching M’s breasts for some time but eventually began
to do so again. M did not tell her mother when the
incidents with the defendant resumed because she was
afraid that (1) she would be unsafe, (2) she would not
be able to see her little sister anymore, (3) her sister
would grow up without a father if the defendant went
to jail, and (4) her mother would not have the financial
help she needed to pay bills. M’s mother eventually
disclosed the defendant’s behavior to the pediatrician
who treated M’s sister, who, in turn, reported it to the
Department of Children and Families (department).
Thereafter, the department notified the police, and
Detective Gary Szlachetka was assigned to investigate.
The department scheduled a forensic interview and
a physical examination of M at the Child Advocacy
Center at Yale-New Haven Hospital. The forensic inter-
view was conducted by a licensed clinical social
worker, Maria Silva. Szlachetka, a department social
worker, Alexandra Chisholm, and a nurse practitioner,
Beth A. Moller, observed the forensic interview on a
television monitor in a separate room. The interview
was also recorded and later introduced at trial. During
the interview, M told Silva that the defendant touched
her breasts with his hands and sucked on her nipples
with his mouth multiple times. M also demonstrated
how the defendant touched her breasts by forming her
hand into the letter ‘‘C.’’ In addition, M used dolls to
demonstrate to Silva how the defendant touched her.
Moller conducted a physical examination of M, but
she did not find anything inconsistent with a normal,
healthy child. At trial, Moller agreed that it was typical
that there would not be any physical signs of abuse
when the abuse alleged was touching and sucking on
a child’s breasts.6
Silva testified regarding the procedure of the forensic
interview. Specifically, Silva testified that she had
undergone specialized training to interview children in
a supportive, nonleading manner.7 She further testified
that it was very common for children to delay disclosing
abuse and that it is common for children to disclose
abuse when emotions are running high—such as when
they are angry. With regard to reasons why children
may not disclose or delay in disclosing abuse, Silva
stated that ‘‘[t]here’s a magnitude of [reasons] why chil-
dren delay in disclosing . . . .’’
After a three day jury trial, the defendant was con-
victed of all charges and sentenced to a total effective
term of thirty years of imprisonment, execution sus-
pended after ten years, followed by fifteen years of
probation. This appeal followed.
On appeal, the defendant claims that the prosecutor
made several improper statements during closing and
rebuttal arguments. Specifically, the defendant claims
that the prosecutor improperly (1) referred to facts not
in evidence, (2) vouched for the credibility of witnesses,
(3) appealed to the passions, emotions, and prejudices
of the jurors, and (4) impugned the integrity and institu-
tional role of defense counsel. The defendant claims
that the prosecutor’s improper statements deprived him
of his due process right to a fair trial. The state responds
that only one of the alleged improprieties was improper
and that none of the prosecutor’s remarks, taken sepa-
rately or in sum, violated the defendant’s due process
right to a fair trial. Although we agree with the defen-
dant that some of the prosecutor’s statements were
improper, we nevertheless conclude that he was not
deprived of his due process right to a fair trial.
Before we address the merits of the defendant’s
claims, we set forth the standard of review and the
law governing claims of prosecutorial impropriety. ‘‘[I]n
analyzing claims of prosecutorial [impropriety], we
engage in a two step analytical process. The two steps
are separate and distinct: (1) whether [an impropriety]
occurred in the first instance; and (2) whether that
[impropriety] deprived a defendant of his due process
right to a fair trial. Put differently, [an impropriety is
an impropriety], regardless of its ultimate effect on the
fairness of the trial; whether that [impropriety] caused
or contributed to a due process violation is a separate
and distinct question that may only be resolved in the
context of the entire trial . . . .’’ (Internal quotation
marks omitted.) State v. Ciullo, 314 Conn. 28, 34–35,
100 A.3d 779 (2014).
Although the defendant did not object at trial to any
of the prosecutor’s alleged improprieties, his claims
are nonetheless reviewable on appeal, pursuant to the
factors set forth by our Supreme Court in State v. Wil-
liams, 204 Conn. 523, 540, 529 A.2d 653 (1987).8 See
also State v. Luster, 279 Conn. 414, 426–28, 902 A.2d
636 (2006).
‘‘[P]rosecutorial [impropriety] of a constitutional magni-
tude can occur in the course of closing arguments. . . .
When making closing arguments to the jury, [however,
counsel] must be allowed a generous latitude in argu-
ment, as the limits of legitimate argument and fair com-
ment cannot be determined precisely by rule and line,
and something must be allowed for the zeal of counsel
in the heat of argument. . . . Thus, as the state’s advo-
cate, a prosecutor may argue the state’s case forcefully,
[provided the argument is] fair and based upon the facts
in evidence and the reasonable inferences to be drawn
therefrom. . . . Moreover, [i]t does not follow . . .
that every use of rhetorical language or device [by the
prosecutor] is improper. . . . The occasional use of
rhetorical devices is simply fair argument. . . .
‘‘Nevertheless, the prosecutor has a heightened duty
to avoid argument that strays from the evidence or
diverts the jury’s attention from the facts of the case.
[The prosecutor] is not only an officer of the court,
like every attorney, but is also a high public officer,
representing the people of the [s]tate, who seek impar-
tial justice for the guilty as much as for the innocent.’’
(Internal quotation marks omitted.) State v. Ciullo,
supra, 314 Conn. 37–38.
I
PROSECUTORIAL IMPROPRIETY
We now turn to whether the prosecutor’s remarks in
the present case constituted prosecutorial impropriety.
The defendant claims that he is entitled to a new trial
because the prosecutor, in his closing and rebuttal argu-
ments to the jury, violated his right to a fair trial by
improperly (1) referring to facts not in evidence, (2)
vouching for the credibility of witnesses, (3) appealing
to the passions, emotions, and prejudices of the jurors,
and (4) impugning the integrity and institutional role
of defense counsel. We will address each of these issues
in turn.
A
Facts not in Evidence
‘‘A prosecutor, in fulfilling his duties, must confine
himself to the evidence in the record. . . . [A] lawyer
shall not . . . [a]ssert his personal knowledge of the
facts in issue, except when testifying as a witness. . . .
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. Singh, 259 Conn. 693, 717, 793 A.2d
226 (2002). ‘‘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). ‘‘It is well established that
[a] prosecutor may invite the jury to draw reasonable
inferences from the evidence; however, he or she may
not invite sheer speculation unconnected to evidence.
. . . [W]hen a prosecutor suggests a fact not in evi-
dence, there is a risk that the jury may conclude that
he or she has independent knowledge of facts that could
not be presented to the jury.’’ (Internal quotation marks
omitted.) Id., 733.
‘‘[I]t is not improper for the prosecutor to comment
upon the evidence presented at trial and to argue the
inferences that the jurors might draw therefrom . . . .
We must give the [jurors] the credit of being able to
differentiate between argument on the evidence and
attempts to persuade them to draw inferences in the
state’s favor, on [the] one hand, and improper unsworn
testimony, with the suggestion of secret knowledge, on
the other hand.’’ (Internal quotation marks omitted.)
State v. Stevenson, 269 Conn. 563, 583, 849 A.2d 626(2004).
In the present case, the defendant challenges five
separate statements the prosecutor made during closing
and rebuttal arguments that he argues improperly state
facts not in evidence and, thus, amount to improprieties.
We address each statement in turn.
The defendant first challenges the prosecutor’s state-
ment during closing argument that the procedure of
having one social worker conduct a forensic interview
of a child who is a possible victim of sexual abuse is
designed to achieve ‘‘the most unbiased and reliable
interview of that child.’’9 We are persuaded that this
comment is supported by the evidence in the record
and, thus, was not improper. This remark by the prose-
cutor directly relates to Silva’s testimony regarding the
forensic interview process.10 The jury could draw a rea-
sonable inference from the evidence that the procedure
used by Silva in conducting the forensic interview of
M was designed not only to reduce any potential trauma
for M but also to allow M to share her story in a ‘‘non-
leading’’ way. Specifically, Silva testified about the pro-
tocol she follows, such as asking each child she inter-
views the same types of questions, learning as little as
possible about the allegations prior to the interview,
building rapport with the child, allowing the child’s
answers to lead the interview, and taking certain pre-
cautions to further the goal of the forensic interview,
which is to have the child convey their own statement
or story. The absence of the word ‘‘reliable’’ in Silva’s
testimony does not preclude the jury from drawing a
reasonable inference that the procedure she used in
conducting the forensic interview was designed to be
unbiased and reliable. The prosecutor’s comment directly
related to Silva’s description of the interview process.
We agree with the state that the jury could view the
prosecutor’s comment as asking the jury to draw a
‘‘reasonable inference based on Silva’s testimony that
the interview process she follows was designed to reli-
ably convey the child’s account of the abuse,’’ and,
therefore, we do not find that this statement constitutes
prosecutorial impropriety.
The defendant next challenges the prosecutor’s state-
ment that ‘‘[c]hildren feel the same way, I would pro-
pose. . . . [W]hen a child sits down and talks to a medi-
cal person, a doctor, an [advanced practice registered
nurse], someone who’s gonna do a physical examina-
tion, they’re gonna give them information that is accu-
rate . . . .’’11 The state argues that the prosecutor prop-
erly asked the jurors to ‘‘apply common sense and their
own life experience.’’ We agree with the state that this
comment does not amount to prosecutorial impropri-
ety.
The prosecutor’s statement is consistent with our
Supreme Court’s discussion in State v. Fauci, 282 Conn.
23, 36, 917 A.2d 978 (2007). In Fauci, the defendant
argued that the prosecutor improperly introduced her
personal opinion regarding the credibility of the wit-
nesses when she stated during rebuttal argument, ‘‘I
think that the most important thing for you to look at
when you’re trying to evaluate people’s statements is
that you should look at whether or not they had—when
they made these statements, were they implicating
themselves? . . . And maybe because I’ve been in this
business for a long time, it’s not hard for me to see that
people tend to lie to get themselves out of trouble, not
to get themselves into trouble. And maybe because I’ve
been in this business for a long time, I feel that there
seems to be something inherently reliable about state-
ments that people make that implicate themselves [in]
wrongdoing . . . . I think it’s common sense.’’ (Inter-
nal quotation marks omitted.) Id. Our Supreme Court
concluded that the prosecutor’s remarks ‘‘do not sug-
gest that they were based on her knowledge of facts
not in evidence. She merely was underscoring the com-
monsense inference that people do not tend to lie when
they make statements against their penal interest.’’
Id., 38.
The prosecutor’s statement in the present case, like-
wise, merely asked the jurors to apply their common
sense to the evidence presented. The remark does not
suggest that the prosecutor was basing his comment
on facts outside of the evidence, as he stated to the
jury: ‘‘Children feel the same way, I would propose.’’
(Emphasis added.) Furthermore, testimony adduced at
trial from M and Moller regarding M’s concern about
the effect the defendant’s conduct might have on the
growth of her breasts is plainly evidentiary support for
this statement. As such, this statement does not amount
to an impropriety.
The defendant next challenges the prosecutor’s com-
ment that a ten year old child does not have a point of
reference as to sexual experiences such as someone
sucking on her nipple.12 We agree with the defendant
that this comment is not supported by the evidence
at trial.
The challenged statement is analogous to that
addressed by our Supreme Court in State v. Alexander,
254 Conn. 290, 755 A.2d 868 (2000). In Alexander, the
prosecutor did not confine herself to the record, stating
to the jury, ‘‘[t]hat’s how little kids think,’’ and that
children ‘‘can’t make this up.’’ (Emphasis omitted; inter-
nal quotation marks omitted.) Id., 301. In addition, the
prosecutor suggested that an eight year old is not
‘‘sophisticated [enough to be able] to fabricate a story
involving sexual abuse.’’ (Emphasis omitted; internal
quotation marks omitted.) Id. Our Supreme Court held
that it was ‘‘wholly improper for the prosecutor to insin-
uate the truthfulness of certain claims, thereby inducing
the jury to review the case by means of facts not in
evidence.’’ Id., 306. As in Alexander, the prosecutor in
the present case twice asked the jury to consider facts
not in evidence when stating that M could not have a
point of reference for the defendant’s sexual behavior
toward her due to her age. In his closing argument, the
prosecutor stated to the jury: ‘‘This is a ten year old on
the video, and then here around twelve, saying how
that felt. Number one, didn’t like it; pressure. She felt
pressure of some—someone sucking her nipple. That’s
rather descriptive. And does a ten year old child have
a point of reference on that sort of sexual thing? I would
submit to you, no.’’ In his rebuttal argument he again
made this improper comment to the jury by stating:
‘‘Again, a ten year old has no frame of reference for
that sort of stuff.’’
As in Alexander, there was no testimony at trial in
the present case supporting the prosecutor’s general
statement to the jury that a ten year old child does not
have a frame of reference for the defendant’s sexual
conduct. The comment made by the prosecutor in this
case concerned exactly those ‘‘principal issues set forth
for the jury to determine on [its] own.’’ State v. Alexander,
supra, 254 Conn. 306. Therefore, the comment amounted
to an impropriety.13
The defendant next challenges the prosecutor’s state-
ment that ‘‘[f]athers don’t sexually abuse children.’’14
The state argues that this comment was proper because
‘‘it is clear . . . from the context in which the prosecu-
tor made the remark that he was talking about a typical
situation that the jurors would have recognized from
their life experience.’’ We are not persuaded and,
accordingly, agree with the defendant that this state-
ment is unsupported by the record.
Our Supreme Court recently reaffirmed the principle
that, although a prosecutor may ‘‘appeal to [the jurors’]
common sense in closing remarks,’’ that appeal must
be ‘‘based on evidence presented at trial and reasonable
inferences that jurors might draw therefrom.’’ (Internal
quotation marks omitted.) State v. Courtney G., 339
Conn. 328, 347–48, A.3d (2021). In Courtney
G., the court concluded that it was proper for the prose-
cutor to ask the jurors to assess the defendant’s credibil-
ity in light of his demeanor on the witness stand and
‘‘implicitly urged the jurors to infer, on the basis of their
common sense and experience, that an innocent man
falsely accused of sexually assaulting a child would
have exhibited outrage while testifying. Because the
prosecutor’s argument was rooted in the evidence, we
perceive no impropriety.’’ Id., 348.
The prosecutor’s comment in the present case is
readily distinguishable from the one at issue in Court-
ney G. Here, the prosecutor did not ask the jurors to
utilize their common sense and life experience to assess
the evidence. Rather, the prosecutor made a bald asser-
tion with no support from the record and asked the
jurors to use their common sense to create facts, rather
than to assess facts already in evidence. To assert to
the jury that ‘‘[f]athers don’t sexually abuse children’’
does not ask the jury to draw reasonable inferences
from the evidence. This is particularly true because the
defendant did not testify at trial, and there was no
other evidence presented remotely related to such a
statement. Rather, it is a statement of fact made by
the prosecutor with no support in the evidence, which
amounts to improper, unsworn testimony. Accordingly,
this statement was improper.
The defendant next challenges the prosecutor’s state-
ment that Silva testified that it was not unusual for a
child to sleep in the same bed with her noncustodial
parent during visitation and that it may be more com-
mon in some cultures.15 The state concedes that Silva
never so testified and that there was no other evidence
in support thereof. Upon our thorough review of the
record, we agree that this statement is entirely unsup-
ported by the record. Therefore, we conclude that this
comment was improper.
B
Witness Credibility
The defendant next claims that the prosecutor
improperly vouched for the credibility of the state’s
witnesses on three occasions. The state responds that
the prosecutor’s comments were properly based on rea-
sonable inferences from trial testimony and permissibly
asked the jury to draw from its common sense. We
address each of the defendant’s claims in turn.
First, the defendant claims that the prosecutor
vouched for M’s credibility by stating that any inconsis-
tencies in her testimony ‘‘clearly fall under the . . .
category’’ of ‘‘innocent lapse in memory,’’ rather than
an ‘‘intentional and malicious attempt to mislead, a
falsehood.’’16 We are not persuaded.
‘‘The prosecutor may not express his own opinion,
directly or indirectly, as to the credibility of witnesses.
. . . Nor should a prosecutor express his opinion,
directly or indirectly, as to the guilt of the defendant.
. . . Such expressions of personal opinion are a form of
unsworn and unchecked testimony, and are particularly
difficult for the jury to ignore because of the prosecu-
tor’s special position. . . . Moreover, because the jury
is aware that the prosecutor has prepared and presented
the case and consequently, may have access to matters
not in evidence . . . it is likely to infer that such mat-
ters precipitated the personal opinions.’’ (Internal quo-
tation marks omitted.) State v. Singh, supra, 259 Conn.
713. ‘‘[Although a] prosecutor is permitted to comment
[on] the evidence presented at trial and to argue the
inferences that the jurors might draw therefrom, he is
not permitted to vouch personally for the truth or verac-
ity of the state’s witnesses.’’ (Internal quotation marks
omitted.) State v. Albino, 312 Conn. 763, 780, 97 A.3d
478 (2014). ‘‘[A] prosecutor may properly comment on
the credibility of a witness where . . . the comment
reflects reasonable inferences from the evidence
adduced at trial.’’ (Internal quotation marks omitted.)
State v. Luster, supra, 279 Conn. 438.
Our Supreme Court’s decision in Luster is particu-
larly instructive. In Luster, the defendant argued that
the prosecutor improperly expressed his own opinion
about the credibility of two of the state’s witnesses. Id.The prosecutor ‘‘referred to uncontested facts adduced
at trial and [the witness’] demeanor on the witness stand
before suggesting that he was honest and open with
us.’’ (Internal quotation marks omitted.) Id., 439. The
court found that the remarks were not improper. Id. In
its analysis, the court looked to State v. Williams, 41
Conn. App. 180, 184, 674 A.2d 1372, cert. denied, 237
Conn. 925, 677 A.2d 950 (1996). In that case, this court
concluded that it was ‘‘improper for the prosecutor to
make repeated bald assertions that the state’s witnesses
were honest. For example, the prosecutor in that case
said: I would submit to you [the jury] that all of these
officers are extremely honest; Detective [Nicholas]
DeMatteis was very honest with you; and [the officers]
all told you honestly what they saw.’’ (Internal quotation
marks omitted.) State v. Luster, supra, 279 Conn. 438–
39. Our Supreme Court concluded in Luster that the
prosecutor’s statements were not bald assertions such
as those in State v. Williams, supra, 41 Conn. App. 180,
because the prosecutor referred to uncontested facts
adduced at trial and the witnesses’ demeanor on the
witness stand. State v. Luster, supra, 439.
In the present case, the prosecutor’s statement that
any inconsistencies in the witnesses’ testimony ‘‘clearly
fall under the . . . category’’ of ‘‘innocent lapse in
memory,’’ rather than an ‘‘intentional and malicious
attempt to mislead, a falsehood,’’ is more like the state-
ment in Luster than the statement in State v. Williams,
supra, 41 Conn. App. 180, and, accordingly, we conclude
that this comment properly invited the jury to draw
reasonable inferences from the evidence. First, contrary
to the defendant’s argument, the prosecutor’s comment
was not directed toward M’s testimony but to the testi-
mony of all of the witnesses. Second, the prosecutor’s
comment was made in the context of reminding the
jurors that it was their role to determine the credibility
of the witnesses in general. Just prior to suggesting
to the jury that any inconsistencies in testimony of
witnesses are the result of an innocent lapse in memory,
the prosecutor reminded the jurors that it was their
responsibility to consider the overall demeanor of the
witnesses while testifying. In addition, the prosecutor
reminded the jurors, on several occasions during clos-
ing and rebuttal argument, that it was their role, and
not the role of counsel, to determine the credibility of
the witnesses. During closing argument, the prosecutor
stated: ‘‘[I]t’s up to you to determine [M’s] credibility
and capacity to recall incidents that actually happened
to her and to explain those to you folks.’’ Again, during
rebuttal argument, he reminded the jurors that ‘‘[y]ou
make a decision on whether she’s a credible witness.’’
Accordingly, in light of the context in which the state-
ment was made and the several instances in which the
prosecutor reminded the jurors of their proper role to
determine the credibility of the witnesses, we conclude
that this comment was not improper.
The defendant next claims that the prosecutor’s state-
ment that the forensic interview procedure was the
‘‘most . . . reliable interview’’17 constituted improper
vouching for M’s credibility. We disagree. We previously
concluded in part I A of this opinion that this comment
was supported by the evidence. Consequently, the pros-
ecutor’s statement was a fair comment that was based
on the evidence adduced at trial, specifically, a fair
argument as to why the jury should credit the state-
ments M made during the forensic interview. The prose-
cutor argued to the jurors that they should infer that M’s
statements are truthful because of the circumstances
in which the statements were made, which we conclude
does not constitute improper vouching for the credibil-
ity of a witness.
Finally, the defendant argues that the prosecutor’s
statement that a child is ‘‘gonna give [medical person-
nel] information that is accurate’’18 improperly vouched
for M’s credibility during the forensic interview. We
previously concluded that this statement was proper in
part I A of this opinion. The prosecutor’s statement
was based on a reasonable inference drawn from the
testimony adduced at trial regarding M’s concern about
the effect of the defendant’s conduct on the growth of
her breasts. For the reasons we previously stated in
part I A of this opinion, we conclude that this statement
was proper.
C
Appealing to Jurors’ Emotions
The defendant next claims that the prosecutor
improperly appealed to the passions, emotions, and
prejudices of the jurors in four different ways. The
state responds that the prosecutor’s comments properly
invited the jurors to draw reasonable inferences from
the evidence and to apply common knowledge and their
life experiences to interpret the evidence.
‘‘[A] prosecutor may not appeal to the emotions, pas-
sions and prejudices of the jurors. . . . [S]uch appeals
should be avoided because they have the effect of
diverting the [jurors’] attention from their duty to decide
the case based on evidence. . . . When the prosecutor
appeals to emotions, he invites the jury to decide the
case, not according to a rational appraisal of the evi-
dence, but on the basis of powerful and irrelevant fac-
tors which are likely to skew that appraisal.’’ (Internal
quotation marks omitted.) State v. Bell, 283 Conn. 748,
773, 931 A.2d 198 (2007). ‘‘[T]he line between comments
that risk invoking the passions and prejudices of the
jurors and those that are permissible rhetorical flour-
ishes is not always easy to draw. The more closely the
comments are connected to relevant facts disclosed by
the evidence, however, the more likely they will be
deemed permissible.’’ State v. Albino, supra, 312 Conn.
773. ‘‘[J]urors are not expected to lay aside matters
of common knowledge or their own observations and
experiences . . . . Therefore, it is entirely proper for
counsel to appeal to [the jurors’] common sense in
closing remarks.’’ (Internal quotation marks omitted.)
State v. Ciullo, supra, 314 Conn. 45–46.
In the present case, the defendant challenges four
separate statements made by the prosecutor during
closing and rebuttal arguments that he argues improp-
erly appealed to the emotions, passions, and prejudices
of the jurors and, thus, amounted to improprieties. We
address each statement in turn.
The defendant first challenges the prosecutor’s invita-
tion to the jurors to consider whether they would want
their own children or grandchildren to go through multi-
ple rounds of interviews if they had been sexually
abused.19 We conclude this statement was not improper.
In State v. Felix R., 319 Conn. 1, 10, 124 A.3d 871 (2015),
the defendant challenged ‘‘statements wherein the pros-
ecutor recounted the difficulties that the victim faced
during the investigation and trial,’’ including being inter-
viewed by strangers and having to relive the experience
at trial. Our Supreme Court found the prosecutor’s com-
ments were proper, because ‘‘when put into the context
of the entire trial and closing argument, the incendiary
potential of the statements’’ was extinguished. Id. Par-
ticularly, the jury had already heard the victim’s experi-
ence at the time the prosecutor made those statements.
Likewise, in the present case, the jury had already heard
M’s experience, specifically, that M was only inter-
viewed once. In making this statement, the prosecutor
was merely drawing on the evidence adduced at trial
and inviting the jurors to draw from their common sense
and experience rather than reach a decision that was
based on emotion.
The defendant next challenges that the prosecutor’s
request that the jurors consider whether their children
or grandchildren would have had any frame of reference
for understanding that something sexual such as having
their nipples sucked was improper.20 We previously con-
cluded, in part I A of this opinion, that it was improper
for the prosecutor to remark to the jury that a ten year
old child does not have a frame of reference for sexual
behavior, such as sucking one’s nipples, because we
concluded that the prosecutor improperly drew on facts
outside of the evidence. We do not believe, however,
that this comment improperly appealed to the emotions
of the jurors. Although the prosecutor’s comment
improperly invited the jurors to draw an inference that
was based on facts not in evidence, it asked that they
do so on a reasoned basis and did not suggest that they
do so on the basis of emotion. Thus, we conclude that
this comment was not an improper appeal to the jurors’
emotions.
The defendant next challenges the prosecutor’s com-
ment to the jury that sexual abuse goes against the core
‘‘of our being to protect children, to nurture children
and to raise children appropriately. When we hear of
these things, and, unfortunately, I’m sure you folks have
heard of incidents in the past of child abuse, child sexual
abuse; it just shakes us right to the core.’’21 We conclude
this comment was not improper. We find instructive
our Supreme Court’s recent discussion in State v.
Michael T., supra, 338 Conn. 726–27. In Michael T., the
prosecutor stated that, ‘‘[i]f wishes could come true
. . . we wouldn’t have . . . children, 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 [the victim] was seven
and eight [years old].’’ (Internal quotation marks omit-
ted.) Id., 727. In concluding that this comment was
proper, our Supreme Court looked to State v. Williams,
65 Conn. App. 449, 783 A.2d 53, cert. denied, 258 Conn.
927, 783 A.2d 1032 (2001), in which this court found
proper, in light of the evidence presented, a prosecutor’s
comment 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 imagin-
able.’’ (Internal quotation marks omitted.) Id., 467.
Moreover, in Michael T., defense counsel himself stated
that the case was ‘‘exceptionally difficult . . . and dis-
gusting . . . . [I]t’s a very emotionally compelling
case; it’s a case that gets you fired up . . . .’’ (Internal
quotation marks omitted.) State v. Michael T., supra,
714.
In the present case, defense counsel stated to the
jury during his closing argument, ‘‘[n]ow, imagine you’re
the one accused of a crime. Something so awful, so
outside the boundaries of anything that you could or
ever would do, anything that your morals would ever
allow, something unfathomable . . . .’’ The prosecu-
tor, in his rebuttal, agreed with defense counsel, stating,
‘‘[w]hen we hear of these things, and, unfortunately,
I’m sure you folks have heard of incidents in the past
of child abuse, child sexual abuse; it just shakes us
right to the core. And I don’t think anybody disagrees
with that. What we do have a disagreement on, [defense
counsel] and I, is what the evidence showed in this
case.’’ In the present case, as in Michael T., defense
counsel himself made statements to the jury acknowl-
edging that the case involved facts and crimes that
were outside the bounds of morality. The prosecutor’s
comment in this case, that child sexual abuse ‘‘shakes
us right to the core,’’ was merely in response to defense
counsel’s comment. The prosecutor then brought the
jury back to the real issue in the case—the parties’
disagreement over what the evidence proved. In the
context in which it was said, the prosecutor’s comment
was not improper.
Finally, the defendant challenges the prosecutor’s
comment to the jury that M ‘‘is bilingual and learning
English every day,’’ and, ‘‘that just shows you how much
she is trying to learn a language, as well as keeping
her own culture.’’22 We conclude that this comment
amounts to an impropriety because it has no connection
to the issues in the present case. The fact that M is
working hard to learn a language has no relevance to
the issues in the present case and would seem calcu-
lated solely to appeal to the jurors’ emotions to elicit
sympathy for M. See State v. Albino, supra, 312 Conn.
775 (concluding that prosecutor’s statement was calcu-
lated solely to appeal to jurors’ emotions because of
lack of relevance to issues in case); State v. Reddick,
174 Conn. App. 536, 565, 166 A.3d 754 (concluding that
prosecutor’s reference to broader issue of gun violence
in New Haven was improper because it was extraneous
and irrelevant to issues before jury), cert. denied, 327
Conn. 921, 171 A.3d 58 (2017), cert. denied, U.S. ,
138 S. Ct. 1027, 200 L. Ed. 2d 285 (2018). Accordingly,
because this comment was entirely irrelevant to the
issues in the present case, we conclude that it improp-
erly appealed to the emotions of the jurors.
D
Impugning Integrity and Role of Defense Counsel
The defendant’s final claim is that the prosecutor
improperly impugned the integrity and institutional role
of defense counsel by repeatedly telling the jury that
defense counsel ‘‘bashed’’23 the witnesses during cross-
examination. Specifically, the prosecutor criticized
defense counsel’s approach of questioning the detec-
tive’s failure to pursue investigatory leads, character-
ized defense counsel to the jury as ‘‘want[ing] to bash
heads,’’ and accused defense counsel of having ‘‘bashed’’
Szlachetka, Silva, and Moller. The state responds that
the prosecutor’s use of the word ‘‘bashed’’ was rhetori-
cal shorthand for defense counsel’s having ‘‘challenged’’
the witnesses. We agree with the state.
‘‘It has been held improper for the prosecutor to
impugn the role of defense counsel. . . . Such com-
ments invite the jury to conclude that everyone the
[g]overnment accuses is guilty, that justice is done only
when a conviction is obtained, and that defense counsel
are impairing this version of justice by having the temer-
ity to provide a defense and to try to get the guilty off.’’
(Citation omitted; internal quotation marks omitted.)
State v. Luster, supra, 279 Conn. 433–34.
‘‘We previously have expressed our disapproval of a
prosecutor’s use of [the] term [smoke and mirrors],
even as an isolated reference . . . because it implie[s],
to whatever degree, that defense counsel had not based
his argument on fact or reason . . . but had intended
to mislead the jury by means of an artfully deceptive
argument. . . . Indeed . . . a prosecutor who uses
the phrase smoke and mirrors implie[s] that the defen-
dant’s attorney intended to deceive and thereby
impugn[s] the integrity of the defendant’s attorney.’’
(Internal quotation marks omitted.) State v. Albino,
supra, 312 Conn. 777–78. ‘‘There is a distinction between
argument that disparages the integrity or role of defense
counsel and argument that disparages a theory of
defense.’’ State v. Orellana, 89 Conn. App. 71, 101, 872
A.2d 506, cert. denied, 274 Conn. 910, 876 A.2d 1202(2005).
Although we do not condone the use of the word
‘‘bash,’’ as employed by the prosecutor, we do not find
that it rises to the level of prosecutorial impropriety.
We conclude that the prosecutor’s use of forms of the
word ‘‘bash’’ was not intended to mislead the jury or
to suggest that defense counsel engaged in unethical
conduct. Instead, the prosecutor used it to describe
what he viewed as one of defense counsel’s points of
emphasis during his closing argument—suggesting that
the state had failed to meet its burden of proof because
its witnesses were unreliable. Although ‘‘bash’’ may be
harsher than ‘‘criticize’’ or ‘‘attack,’’ its use was the
functional equivalent of those terms. After using forms
of the word, the prosecutor then argued to the jurors
why they should rely on the witnesses, despite defense
counsel’s criticisms. Furthermore, the prosecutor,
when concluding this section of his rebuttal argument,
put his comments in context by explaining to the jury:
‘‘You might be unhappy with how I decided to run the
case, how [defense counsel] decided to defend the case,
how a detective or a medical personnel did their job.
Bottom line is . . . are the elements of the crimes
proven beyond a reasonable doubt?’’ Thus, the prosecu-
tor’s argument was based on the evidence and the
state’s burden to prove its case and was not a suggestion
that defense counsel acted improperly.
We conclude that the prosecutor’s comments are
analogous to those used in State v. Young, 76 Conn.
App. 392, 819 A.2d 884, cert. denied, 264 Conn. 912, 826
A.2d 1157 (2003). In Young, the prosecutor argued to
the jurors that they should not to be ‘‘ ‘fooled’ ’’ by
defense counsel’s arguments and stated that defense
counsel’s questions during cross-examination were
designed to distract the jury from the real issues in the
case. Id., 405. This court concluded that these com-
ments ‘‘did not overstep the bounds of permissible argu-
ment’’; id., 405; when the prosecutor suggested to the
jurors that defense counsel had attempted to divert
their attention away from the defendant’s action by
allocating a significant share of his closing argument
to discussing what he deemed to be weaknesses in the
witnesses’ credibility. Id., 400.
In the present case, the prosecutor’s comments like-
wise attempted to highlight the fact that defense coun-
sel’s view of the case was very different from that of
the prosecutor, specifically, that they shared different
views on the credibility of the witnesses. Thus, during
the part of his rebuttal when he used the terms bash,
bashed, and bashing, the prosecutor stated that defense
counsel had a different read on the case, which is ‘‘not
unusual. That’s his job . . . .’’ Therefore, we conclude
that, read in context, the prosecutor’s use of forms
of the word ‘‘bash’’ did not overstep the bounds of
permissible argument.
II
DUE PROCESS
Having found that improprieties occurred, we now
turn to whether those improprieties deprived the defen-
dant of his due process right to a fair trial. ‘‘When a
defendant demonstrates improper questions or remarks
by the prosecutor during the course of trial, the defen-
dant bears the burden of showing that, considered in
light of the whole trial, the improprieties were so egre-
gious that they amounted to a denial of due process.’’
(Internal quotation marks omitted.) State v. Albino,
supra, 312 Conn. 790. ‘‘[A defendant is not entitled to
prevail when] the claimed [impropriety] was not bla-
tantly egregious and merely consisted of isolated and
brief episodes that did not reveal a pattern of conduct
repeated throughout the trial. . . . The question of
whether the defendant has been prejudiced by prosecu-
torial [impropriety], therefore, depends on whether
there is a reasonable likelihood that the jury’s verdict
would have been different absent the sum total of the
improprieties.’’ (Citation omitted; internal quotation
marks omitted.) State v. Luster, supra, 279 Conn. 442.
‘‘[O]ur determination of whether any improper con-
duct by the [prosecutor] violated the defendant’s fair
trial rights is predicated on factors set forth in State v.
Williams, [supra, 204 Conn. 540], with due consider-
ation of whether that [impropriety] was objected to at
trial. . . . These factors include: [1] the extent to which
the [impropriety] was invited by defense conduct or
argument . . . [2] the severity of the [impropriety]
. . . [3] the frequency of the [impropriety] . . . [4] the
centrality of the [impropriety] to the critical issues in
the case . . . [5] the strength of the curative measures
adopted . . . [6] and the strength of the state’s case.
. . . The question of whether the defendant has been
prejudiced by prosecutorial [impropriety] . . .
depends on whether there is a reasonable likelihood
that the jury’s verdict would have been different absent
the sum total of the improprieties. . . . Under the Wil-
liams general due process standard, the defendant has
the burden to show both that the prosecutor’s conduct
was improper and that it caused prejudice to his
defense.’’ (Internal quotation marks omitted.) State v.
Hargett, 196 Conn. App. 228, 265–66, 229 A.3d 1047, cert.
granted, 335 Conn. 952, 238 A.3d 730 (2020). ‘‘Ultimately,
[t]he issue is whether the prosecutor’s conduct so
infected the trial with unfairness as to make the
resulting conviction a denial of due process.’’ (Internal
quotation marks omitted.) State v. Courtney G., supra,
339 Conn. 362.
The first of the Williams factors is whether the impro-
prieties were invited by defense counsel. See State v.
Williams, supra, 204 Conn. 540. It is undisputed by the
state, and our thorough review of the record confirms,
that the prosecutorial improprieties were not invited
by the conduct of defense counsel.
The second Williams factor is the severity of the
improprieties. Id. When evaluating severity, we must
consider ‘‘whether defense counsel objected to the
improper remarks, requested curative instructions, or
moved for a mistrial. . . . Additionally, we look to
whether the [improprieties were] blatantly egregious
or inexcusable.’’ (Citation omitted; internal quotation
marks omitted.) State v. Courtney G., supra, 339 Conn.
362. Although lack of an objection is not fatal to the
defendant’s claim for a new trial, we must consider this
in assessing whether the defendant’s right to a fair trial
was violated. The failure to object ‘‘demonstrates that
defense counsel presumably [did] not view the alleged
impropriety as prejudicial enough to jeopardize seri-
ously the defendant’s right to a fair trial.’’ (Internal
quotation marks omitted.) State v. Fauci, supra, 282
Conn. 51. In the present case, not only did defense
counsel fail to object to any of the alleged improprieties
when they occurred, he did not take the opportunity
to address the alleged improprieties in the prosecutor’s
closing argument during his own closing argument to
the jury. Rather, defense counsel began his closing argu-
ment to the jury by stating, ‘‘[y]ou heard the state over
the last few days present their evidence and summarize
it for you a few minutes ago.’’ At no point in his closing
argument did defense counsel challenge the improper
comments made by the prosecutor during his closing,
further highlighting that, at trial, defense counsel pre-
sumably did not view the improprieties as so prejudicial
as to jeopardize seriously the defendant’s right to a fair
trial. See State v. Fauci, supra, 51. Furthermore, defense
counsel never requested a curative instruction from the
court or a mistrial due to any of the improprieties.
Additionally, ‘‘the severity of the impropriety is often
counterbalanced in part by the third Williams factor,
namely, the frequency of the [impropriety] . . . .’’
(Internal quotation marks omitted.) State v. Daniel W.,
180 Conn. App. 76, 113, 182 A.3d 665, cert. denied, 328
Conn. 929, 182 A.3d 638 (2018); see State v. Williams,
supra, 204 Conn. 540. ‘‘Improper statements that are
minor and isolated will generally not taint the overall
fairness of an entire trial.’’ (Internal quotation marks
omitted.) State v. Felix R., supra, 319 Conn. 17; see also
State v. Payne, 303 Conn. 538, 567, 34 A.3d 370 (2012)
(With respect to the second and third Williams factors,
‘‘all three of the contested statements by the prosecutor
were isolated and occurred within the state’s lengthy
closing argument. Additionally, the trial court cured
any harm by instructing the jury that the arguments of
counsel were not evidence . . . .’’ (Footnote omit-
ted.)). In the present case, all of the improper comments
were single, isolated statements made during closing
and rebuttal argument, rather than having been
repeated throughout the trial for dramatic effect. See
State v. Felix R., supra, 17.
The fourth Williams factor considers the centrality
of the improprieties. State v. Williams, supra, 204 Conn.
540. In light of the lack of eyewitnesses or physical
evidence, the critical issue in this case was the credibil-
ity of the witnesses’ testimony. We conclude that two
of the improper statements directly implicated M’s cred-
ibility, specifically, the prosecutor’s statement that chil-
dren do not have a point of reference for sexual behav-
ior such as sucking one’s nipples and the prosecutor’s
statement to the jury concerning M’s efforts to become
bilingual and maintain her culture.24 Although we con-
clude that these two comments bear on the centrality
of the state’s case, given their brief and isolated nature
and the lack of any objection from the defense, we are
not convinced that the defendant was denied a fair trial.
Furthermore, the prosecutor reminded the jurors on
several occasions that it was their role, and only their
role, to determine witness credibility. See part I B of
this opinion. Thus, to the extent that the improprieties
did bear on the central issue of the credibility of witness
testimony, we are confident that, when viewed in the
context of the entire trial, the impact of the improper
comments was minimal.
The fifth Williams factor considers the strength of
curative measures adopted. State v. Williams, supra,
204 Conn. 540. Although the court did not address any
of the prosecutor’s improper comments, we conclude
that the court’s extremely thorough jury instructions
were sufficiently curative. ‘‘We recognize that general
jury instructions can cure the potential effects of minor
prosecutorial improprieties.’’ State v. Felix R., supra,
319 Conn. 18. We presume that the jury followed the
court’s instructions ‘‘in the absence of any indication
to the contrary.’’ State v. Collins, 299 Conn. 567, 590,
10 A.3d 1005, cert. denied, 565 U.S. 908, 132 S. Ct. 314,
181 L. Ed. 2d 193 (2011). A thorough search of our
jurisprudence reveals that the judgment in very few
cases has been reversed on the basis of prosecutorial
impropriety when defense counsel has not objected to
the challenged remarks, moved for a curative instruc-
tion, or moved for a mistrial, particularly when the trial
court’s general jury instructions addressed the impro-
prieties.25 Our Supreme Court has ‘‘note[d] that, in
nearly all cases where defense counsel fails to object
. . . and [to] request a specific curative instruction in
response to a prosecutorial impropriety . . . and the
court’s general jury instruction addresses that impropri-
ety, [it has] held that the court’s general instruction
cures the impropriety.’’ State v. A. M., 324 Conn. 190,
207, 152 A.3d 49 (2016).
In the present case, the court instructed the jury as
follows: ‘‘The law prohibits the [prosecutor] or defense
counsel from giving personal opinions as to whether
the defendant is guilty or not guilty. It is not their
assessment of the credibility of the witnesses that mat-
ters, only yours. . . . Arguments and statements by
lawyers are not evidence. The lawyers are not wit-
nesses. What they have said in their closing argument
is intended to help you interpret the evidence, but their
arguments are not evidence. If the facts as you remem-
ber them differ from the way the lawyers have stated
them, your memory of them controls. It is not proper
for the attorneys to express their opinion on the ulti-
mate issue in this case or to appeal to your emo-
tions. . . .
‘‘As I already indicated, and, I guess, I’m indicating
again, you should keep in mind that the arguments
and statements by the attorneys in final argument or
during the course of the trial are not evidence. You
should not consider as evidence their recollection of
the facts, nor their personal belief as to any facts or
as to the credibility of any witness, nor any facts which
any attorney may have presented to you in argument
from that attorney’s knowledge which was not pre-
sented to you as evidence during the course of trial. If
there are—is any difference between what any attorney
recalls as the evidence and what you recall as the evi-
dence, it is your recollection that controls. Follow your
recollection, not anyone else’s. . . . You should not be
influenced by any sympathy for the defendant, the
defendant’s family, the complainant, the complain-
ant’s family or for any other person who might, in
any way, be affected by your decision. In addition, as
I indicated earlier, your verdict must be based on the
evidence, and you may not go outside the evidence to
find facts; that is, you may not resort to guesswork,
conjecture or suspicion, and you must not be influ-
enced by any personal likes or dislikes, opinions, prej-
udices, biases or sympathy.’’ (Emphasis added.)
We are confident that that these jury instructions had
the curative effect of reminding the jurors that it was
their responsibility, and only their responsibility, to
assess the credibility of the witnesses solely on the
basis of the evidence presented and to determine the
facts on the basis of their recollections of the evidence.
Additionally, the court made clear several times that
the attorneys’ arguments were not evidence and, thus,
should not influence the jury’s verdict. This factor
weighs heavily in favor of our conclusion that the defen-
dant was not deprived of a fair trial.
The sixth and final Williams factor considers the
strength of the state’s case. See State v. Williams, supra,
204 Conn. 540. As our Supreme Court has stated, ‘‘[t]he
sexual abuse of children is a crime which, by its very
nature, occurs under a cloak of secrecy and darkness.
It is not surprising, therefore, for there to be a lack of
corroborating physical evidence . . . . Given the rar-
ity of physical evidence in [sexual assault cases involv-
ing children], a case is not automatically weak just
because a child’s will was overborne and he or she
submitted to the abuse . . . .’’ State v. Felix R., supra,
319 Conn. 18. Notably, our Supreme Court has ‘‘never
stated that the state’s evidence must have been over-
whelming in order to support a conclusion that prosecu-
torial [impropriety] did not deprive the defendant of a
fair trial.’’ (Internal quotation marks omitted.) State v.
Stevenson, supra, 269 Conn. 596.
We conclude that the state’s case was not weak due
to the lack of conclusive physical evidence. The evi-
dence to support the defendant’s conviction included
M’s testimony, which provided very detailed descrip-
tions of the defendant’s conduct and was consistent
with both the testimony of the other three witnesses
at trial as well as with the video of M’s forensic interview
conducted years earlier. Furthermore, Silva testified as
to reasons why children may delay disclosing abuse
and why it was common for children do so. In addition,
Silva testified that it was common for children to dis-
close abuse when their emotions were heightened, as
M did in this case. Although two of the improper com-
ments bore on M’s credibility, which we acknowledge
was central in this case, M’s testimony was not the only
evidence for the jury to assess. Furthermore, in light
of the failure of defense counsel to object to the impro-
prieties, the thorough general jury instructions given
by the court, and the prosecutor’s repeated reminders
to the jurors that it was ultimately their responsibility
to assess the credibility of the witnesses, we conclude
that the defendant was not deprived of a fair trial.
Finally, our analysis must consider ‘‘the fairness of
the entire trial, and not the specific incidents of the
[impropriety] themselves.’’ (Internal quotation marks
omitted.) State v. Ciullo, supra, 314 Conn. 36. Although
the prosecutor made some improper comments, we are
confident that, in light of the entire trial, the improprie-
ties did not so taint the defendant’s trial as to render
it fundamentally unfair. We conclude that, considered
in light of the whole trial, the improprieties were not
so egregious that they amounted to a denial of due
process. See State v. Payne, supra, 303 Conn. 567.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-72a (a) provides in relevant part: ‘‘A person is
guilty of sexual assault in the third degree when such person (1) compels
another person to submit to sexual contact (A) by the use of force against
such other person or a third person . . . .’’
2
General Statutes § 53a-73a (a) provides in relevant part: ‘‘A person is
guilty of sexual assault in the fourth degree when: (1) Such person subjects
another person to sexual contact who is (A) under thirteen years of age
and the actor is more than two years older than such other person . . . .’’
3
General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who
. . . (2) has contact with the intimate parts, as defined in section 53a-65,
of a child under the age of sixteen years or subjects a child under sixteen
years of age to contact with the intimate parts of such person, in a sexual
and indecent manner likely to impair the health or morals of such child
. . . shall be guilty of . . . a class B felony for a violation of subdivision
(2) of this subsection, except that, if the violation of subdivision (2) of this
subsection and the victim of the offense is under thirteen years of age, such
person shall be sentenced to a term of imprisonment of which five years
of the sentence imposed may not be suspended or reduced by the court.’’
4
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.
5
In addition, Beth A. Moller, a nurse practitioner who had conducted a
physical examination of M, testified that M was ‘‘very concerned that [the
defendant] sucked her nipples, and because he had done that, that her—
her breasts would not grow properly.’’
6
The following colloquy occurred between the prosecutor and Moller on
direct examination:
‘‘Q. Okay. And with regard to your physical examination of the intimate
parts of the body . . . what were your findings, if any, with [M]?
‘‘A. They were normal. . . .
‘‘Q. Okay. Is there any significance to that . . . so to speak?
‘‘A. No.
‘‘Q. Is that what you would expect of a child that age?
‘‘A. Yes.
‘‘Q. And is that what you would expect based on the disclosure that you
viewed during the forensic interview?
‘‘A. Yes.
‘‘Q. Okay. That’s because [M] did not indicate there was any penetration
. . . ?
‘‘A. Exactly.’’
7
On direct examination, Silva testified: ‘‘So, we—here in the state of
Connecticut, we utilize a one session interview, which we call a forensic
interview. So, it’s a single session interview that is video-recorded, and it
is conducted in a way to elicit information from the child in a supportive,
nonleading manner. So, that way the child does not have to repeat their
story, does not have to talk to multiple professionals, and it’ll decrease the
trauma to the child.’’
On redirect examination, Silva further testified: ‘‘[I]t’s supposed—it’s a
neutral, supportive, nonleading interview. And we don’t want to go into it
with a lot of preconceived notions or with a lot of information in order not
to lead the child indirectly to anything. So, the child is there. We’re there
to listen to the story that they have to say, and we’re not there to lead them
in any way.’’
In addition, Silva testified about the protocol utilized in conducting the
interview, which is ‘‘loosely based on Finding Words [a training protocol
used by forensic interviewers]. . . . So, we start off with rapport building
with the child. So, that’s our protocol. So, rapport is, you ask lots of questions
to build a rapport with the child. Normally, we ask about things they like
to do or things they don’t like, and so forth. . . . And then from rapport
. . . we then transition to asking usually about family and who they live
with and so forth. And then we go into why they—if they know why they’re
there, and we ask questions based on that. Again, all the questions are open-
ended. . . . So, after we ask about that, depending on what the child says,
if the child says they don’t know why they’re there or they say, I came
because of this, we follow where the child leads us. And part of that, we
also—we always do safety questions, we always do a closure piece. So,
there’s components of it that we always do. The questions within each
component differ, based again, on the age of the child and what the child
says.’’
8
We discuss the Williams factors at length in part II of this opinion.
9
Specifically, the prosecutor stated: ‘‘Silva testified about . . . what is
the best mechanism to follow, investigate, determine the medical, social,
psychological needs of the child, which is paramount among everyone, but
also to have the least trauma imposed on the child of tender years and also
to have the most unbiased and reliable interview of that child.’’ (Empha-
sis added.)
10
See footnote 7 of this opinion.
11
Specifically, the prosecutor stated: ‘‘Just like when you sit down with
your doctor, you tell your doctor things that concern you. Why? Because a
doctor is going to help you. . . . Because you know, as an adult, that what
you tell them they’re gonna use to help you physically, mental health wise,
counseling, whatever. Children feel the same way, I would propose. And
when a child sits down and talks to a medical person, a doctor, an [advanced
practice registered nurse], someone who’s gonna do a physical examina-
tion, they’re gonna give them information that is accurate, that is going
to help them, help them as a person, help them get the assistance that they
need.’’ (Emphasis added.)
12
Specifically, the prosecutor stated: ‘‘The other thing she talked about
is the, him sucking her nipple on more than one occasion. And I will suggest
that the testimony from [M], both in the video and here, is very powerful,
as far as the physical sensation. This is a ten year old on the video, and
then here around twelve, saying how that felt. Number one, didn’t like it;
pressure. She felt pressure of some—someone sucking her nipple. That’s
rather descriptive. And does a ten year old child have a point of reference
on that sort of sexual thing? I would submit to you, no. And I would ask
you just to use your own common sense, your personal experiences, having
children, having grandchildren who have gone through three, four, five, ten
years old through puberty, maybe adults now. That’s a rather descriptive way
of explaining what happened, and she was consistent with that.’’ (Emphasis
added.) The prosecutor again made a statement regarding M’s point of
reference during rebuttal argument, stating to the jury: ‘‘Again, a ten year
old has no frame of reference for that sort of stuff.’’ (Emphasis added.)
13
Our Supreme Court recently discussed Alexander in State v. Michael
T., 338 Conn. 705, 259 A.3d 617 (2021). In Michael T., the prosecutor asked
the jury, ‘‘[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?’’ (Internal quotation
marks omitted.) Id., 727. In holding this comment to be proper, the court
distinguished this comment from the one in Alexander for two reasons: the
remark was invited by defense counsel, and the prosecutor did not make
a broad assertion that no child could make up an allegation of sexual abuse,
but, rather, she ‘‘suggested only that the jury could infer from this child’s
appearance and demeanor on the [witness] stand that she was not lying
in order to obtain something valuable, namely, getting out of the house.’’
(Emphasis omitted.) Id., 729. In the present case, as in Alexander, the
prosecutor made a broad statement as to whether all ten year old children
have the capacity to fabricate a story of such a sexual nature, rather than
specifically focusing on M’s demeanor on the witness stand, as in Michael
T. Thus, we conclude that the prosecutor’s comments are analogous to
those addressed by our Supreme Court in Alexander and are readily distin-
guishable from those in Michael T.
14
Specifically, the prosecutor stated: ‘‘He wants to be a father; well, he
didn’t do a very good job. Fathers don’t do that. Fathers don’t engage in
corporal punishment, normally. Fathers don’t sexually abuse children.
That’s a concept, or the argument is preposterous that, somehow, oh, this
is just her confusing this roughhousing with the sexual assault.’’ (Empha-
sis added.)
15
Specifically, the prosecutor stated: ‘‘Maria Silva said that’s not unusual
that, sometimes, a parent, a child, especially on a visitation when divorced,
might sleep in the same bed for a variety of reasons. Also, [she commented]
about, sometimes, it’s maybe more common in certain cultures.’’
16
Specifically, the prosecutor argued: ‘‘We touched upon the credibility
of witnesses. That is a key factor that the jury must decide. What is the
credibility of a witness? Who to believe, who not to believe, et cetera. On
the credibility issues, you have—I’ll just go over some of the things. . . .
What does a witness say, and how did they say it? What is their demeanor?
What is their physical response? . . . And is their testimony reasonable
and logical? No one has total recall. . . . [T]hat is not the bar, that you
remember absolutely everything and that you recite absolutely everything
in the exact same fashion that you did yesterday, a year ago, two years
ago, five years ago, some experience that you may have. So, if there are
inconsistencies in any of the witnesses’ testimony, and there were four
witnesses that testified during this case, you have to determine if that is
[an] innocent lapse in memory or was it an intentional and malicious attempt
to mislead, a falsehood. And, again, we’re very satisfied that you folks are
going to be able to make those determinations. I submit to you that the
evidence that you heard, if there are inconsistencies that you find in
witness testimony, clearly fall under the first category.’’ (Emphasis added.)
17
See footnote 9 of this opinion.
18
See footnote 11 of this opinion.
19
Specifically, the prosecutor stated: ‘‘Not to have four, five different
people go into great detail with the child about what happened. Nobody
wants to have to go through that. If any of you ever experienced a traumatic
situation, you wouldn’t want to have to do that, either. And for those of
you that have children or grandchildren or nieces or nephews, you under-
stand that development process.’’
20
See footnote 12 of this opinion.
21
Specifically, the prosecutor stated: ‘‘No one wants to believe that sexual
abuse of children happens. Nobody wants to. Because when we realize that,
it goes against the—core of our—of our being to protect children, to nurture
children and to raise children appropriately. When we hear of these things,
and, unfortunately, I’m sure you folks have heard of incidents in the past
of child abuse, child sexual abuse; it just shakes us right to the core.’’
22
Specifically, the prosecutor stated: ‘‘She thanked [defense counsel] when
he complimented her on her English language, as well as Spanish. [M],
obviously, is bilingual and learning English every day. To the point where,
again, she now calls the defendant Patrick as opposed to Patricio. Maybe
that’s natural for, you know, an immigrant to kind of want to become more
[assimilated], but that just shows how much she is trying to learn a language,
as well as keeping her own culture.’’
23
The prosecutor used the word ‘‘bash’’ in reference to defense counsel
when arguing to the jury on several occasions. During closing argument the
prosecutor stated: ‘‘Speaking of that, the charges in this case are brought,
and I mentioned this earlier, by me. Different people were involved in the
investigation. Three of the witnesses have testified, other people who didn’t
testify. But once the arrest is made, the case is the state’s attorney’s case.
So, if [defense counsel] wants to bash heads, mine is the head to bash
. . . .’’ (Emphasis added.)
The prosecutor next stated: ‘‘[Defense counsel’s] read on the case, as I
had suggested when I ended my first part [of closing argument], is very
different than mine. That’s not unusual. That’s his job, and my job is also
to highlight what I believe to be important aspects of this case. During the
course of closing argument of the defense, [defense counsel] took a lot of
time bashing some of the witnesses, particularly the detective in this case.
. . . Not only bashed the detective, bashed the two workers from [Yale-
New Haven Hospital].’’ (Emphasis added.)
24
See footnotes 12 and 23 of this opinion.
25
We note that the cases in which our appellate courts have ordered a
new trial on the basis of prosecutorial improprieties, in the absence of any
objection by defense counsel, involved conduct substantially more egregious
than what occurred in the present case. In State v. A. M., 324 Conn. 190,
192–93, 152 A.3d 49 (2016), our Supreme Court upheld the decision of
this court, concluding that the prosecution’s references to the defendant’s
decision not to testify were improper and deprived him of his right to a
fair trial.
In State v. Angel T., 292 Conn. 262, 291, 973 A.2d 1207 (2009), our Supreme
Court concluded that the trial court’s general jury instructions were insuffi-
cient to cure improprieties that occurred repeatedly throughout the trial
because the instructions did not specifically address all of the improprieties.
Further, in State v. Maguire, 310 Conn. 535, 562, 78 A.3d 828 (2013), the
prosecutor, during both closing and rebuttal remarks, repeatedly stated that
the defendant and defense counsel were asking the jury to condone child
abuse. Our Supreme Court held that these remarks were ‘‘particularly harm-
ful because, in a close case, the jurors may have felt compelled to find
the defendant guilty, lest they be viewed by the state as condoning such
contemptible conduct.’’ Id.In the present case, the prosecutor’s remarks did not violate any state
statutes or implicate the defendant’s constitutional right to remain silent.
We do not find the prosecutor’s remarks to be particularly egregious in light
of the trial as a whole. Further, we conclude that the trial court’s general
instructions were sufficient to cure any potential harm resulting from the
prosecution’s improprieties.
Unlike in Angel T., the prosecutor’s comments in the present case were
confined to only closing and rebuttal arguments, and did not occur repeatedly
throughout the trial. Furthermore, the trial court in the present case
addressed all of the improprieties in its general instructions to the jury.
Finally, none of the improprieties in this case approaches the prosecutor’s
conduct in State v. Maguire, supra, 310 Conn. 546–52. Indeed, the integrity
and veracity of defense counsel was not disparaged, as was the case in
Maguire. See id., 556–58.