State v. Petion , 172 Conn. App. 668 ( 2017 )

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STATE OF CONNECTICUT v. DIVENSON PETION
(AC 37884)
DiPentima, C. J., and Prescott and Beach, Js.
Argued January 6—officially released May 2, 2017
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, White, J.)
Jennifer B. Smith, assigned counsel, for the appel-
lant (defendant).
Jonathan M. Sousa, special deputy assistant state’s
attorney, with whom, on the brief, were Richard J.
Colangelo, Jr., state’s attorney, and Maureen Ornousky,
senior assistant state’s attorney, for the appellee (state).
Opinion
PRESCOTT, J. The defendant, Divenson Petion,
appeals from the judgment of conviction, rendered after
a jury trial, of two counts of assault in the first degree
in violation of General Statutes § 53a-59 (a) (1).1 On
appeal, the defendant claims that (1) there was insuffi-
cient evidence to support a conviction for first degree
assault as to one of the two victims because the state
failed to demonstrate beyond a reasonable doubt that
that victim had suffered a ‘‘serious physical injury,’’ and
(2) prosecutorial improprieties during closing argument
violated his right to a fair trial. We affirm the judgment
of the trial court.
The jury reasonably could have found the following
facts. In 2008, the defendant began dating Rosa Bran.
Bran later became pregnant with the defendant’s daugh-
ter, who was born in February, 2010. Bran also had a
son from a prior relationship. After the birth of his
daughter, the defendant’s romantic relationship with
Bran ended, although they remained in contact.
In 2012, Bran and the two children lived in an apart-
ment in Norwalk that they shared with Bran’s mother,
her brother, and her brother’s fiance´e. The defendant
occasionally would visit his daughter, sometimes show-
ing up unannounced. Just prior to these assaults, Bran
and the defendant had argued about his relationship
with another woman and his failure to provide support
for their daughter. Although the defendant had no inter-
est in renewing his relationship with Bran, he told her
that he did not want other men around his daughter.
Bran recently had resumed a friendship with a former
boyfriend, Robert Raphael. The defendant and Raphael
met in the spring of 2012, at which time the defendant
identified himself as the father of Bran’s daughter.
On May 26, 2012, Raphael, who was celebrating his
birthday, called Bran to see if she would like to spend
the day with him. Bran agreed and invited Raphael to
the apartment. Raphael came over to the apartment in
the early afternoon. In addition to Bran and her two
children, her cousin’s two children were also at home
at the time.
Later that afternoon, there was a knock on the door.
Bran answered the door believing it would be her cousin
picking up her two children, but it was the defendant.
He asked to see his daughter. Bran explained that it
was not a good time because she was asleep on the
couch. The defendant then saw Raphael, who was plan-
ning to leave and coming toward the door. The defen-
dant became angry, pushed Bran aside, and entered the
apartment. He began to shout at Raphael to get out of
the apartment. Raphael, who did not want to leave Bran
and the children alone with the defendant while he was
so agitated, told the defendant that he was staying. At
that point, the defendant ‘‘got in his face’’ and began
pushing and punching him. Raphael retreated into the
living room.
Meanwhile, the defendant’s daughter, who was sleep-
ing on the couch, woke up. Raphael told Bran to make
sure the children were all right. The defendant became
more and more aggressive, continuing to yell at
Raphael, and, eventually, he pulled out a knife from
his pocket and slashed Raphael across the face. Bran
jumped in between the defendant and Raphael, appar-
ently hoping this would prevent the defendant from
cutting Raphael. The defendant cut Bran on her left
arm in the process.
Bran was not immediately aware that she had been
cut, and she grabbed her daughter to get her away from
the situation. Raphael, who was bleeding heavily, ran
out of the apartment, got in his car, and drove himself to
the hospital. Bran’s son came downstairs and, observing
his mother’s bleeding arm, grabbed a towel to cover
her wound. The defendant apologized several times to
Bran and left the apartment. Bran’s cousin arrived
shortly thereafter to retrieve her two children and drove
Bran to the hospital.
Bran and Raphael both were admitted to Norwalk
Hospital at around 4:30 p.m. At the time she was admit-
ted, Bran had ‘‘grossly abnormal’’ vital signs for some-
one her age. She had a three and one-half centimeter
abrasion and two lacerations on her left arm that were
consistent with being cut by a sharp object. The smaller
of the two lacerations was less than a centimeter long
and required one suture. The other laceration was four
centimeters in length and required ten sutures to close.
The injury left a permanent and visible scar on her left
arm.2 While at the hospital, Bran and Raphael gave
statements to the police, and the defendant was
arrested shortly thereafter.
On October 15, 2014, the state charged the defendant
in a long form information with two counts of assault
in the first degree in violation of § 53a-59 (a) (1). The
first count alleged that, with the intent to cause serious
physical injury to Raphael, the defendant caused such
injury to Raphael by means of a dangerous instrument.
The second count alleged that, with the intent to cause
serious physical injury to Raphael, the defendant
caused such injury to Bran by means of a dangerous
instrument. The jury found the defendant guilty on both
counts of assault. The court sentenced the defendant
on the assault convictions to two concurrent terms
of seventeen years of incarceration, followed by three
years of special parole.3 This appeal followed.
I
The defendant first claims that, with respect to Bran,
there was insufficient evidence to sustain a conviction
of assault in the first degree in violation of § 53a-59 (a)
(1) because the state failed to prove beyond a reason-
able doubt that she suffered a ‘‘serious physical injury.’’
The defendant argues that Bran’s injuries were limited
to ‘‘an abrasion and two small lacerations on her left
forearm.’’ The defendant describes Bran’s injuries as
‘‘unremarkably negligible,’’ arguing that they were so
minor that Bran was not immediately aware of the injur-
ies and that she did not call 911 for help. The state, on
the other hand, argues that the evidence presented to
the jury showed that one of the two lacerations that
Bran received resulted in a significant and readily visi-
ble scar and that, under our law, a jury reasonably could
have found that such scarring constituted a serious
disfigurement and, therefore, a serious physical injury.
We agree with the state.
We begin with our well-settled standard of review
and relevant legal principles. ‘‘The appellate standard
of review [for] sufficiency of the evidence claims is well
established. In reviewing a sufficiency [of the evidence]
claim, we apply a two part test. First, we construe the
evidence in the light most favorable to sustaining the
verdict. Second, we determine whether upon the facts
so construed and the inferences reasonably drawn
therefrom the jury reasonably could have concluded
that the cumulative force of the evidence established
guilt beyond a reasonable doubt. . . .
‘‘The evidence must be construed in a light most
favorable to sustaining the [court’s] verdict. . . . Our
review is a fact based inquiry limited to determining
whether the inferences drawn by the [fact finder] are
so unreasonable as to be unjustifiable. . . . [T]he
inquiry into whether the record evidence would support
a finding of guilt beyond a reasonable doubt does not
require a court to ask itself whether it believes that the
evidence . . . established guilt beyond a reasonable
doubt. . . . Instead, the relevant question is whether,
after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a
reasonable doubt.’’ (Internal quotation marks omitted.)
State v. Whitnum-Baker, 169 Conn. App. 523, 525–26,
150 A.3d 1174 (2016), cert. denied, 324 Conn. 923,
A.3d (2017).
Section 53a-59 (a) provides in relevant part: ‘‘A person
is guilty of assault in the first degree when: (1) With
intent to cause serious physical injury to another per-
son, he causes such injury to such person or to a third
person by means of a deadly weapon or a dangerous
instrument . . . .’’ A ‘‘serious physical injury’’ is
defined by statute as a ‘‘physical injury which creates
a substantial risk of death, or which causes serious
disfigurement, serious impairment of health or serious
loss or impairment of the function of any bodily organ.’’
(Emphasis added.) General Statutes § 53a-3 (4) (defin-
ing terms used throughout our penal code).
‘‘Whether a victim has suffered serious physical injury
is a question of fact for the jury. . . . Although our case
law . . . does not require expert medical testimony to
establish the element of serious physical injury, there
must be sufficient direct or circumstantial evidence or
a combination of both presented to the jury from which
it may find such injury.’’ (Citation omitted.) State v.
Rumore, 28 Conn. App. 402, 414, 613 A.2d 1328, cert.
denied, 224 Conn. 906, 615 A.2d 1049 (1992); accord
State v. Lewis, 146 Conn. App. 589, 608, 79 A.3d 102
(2013), cert. denied, 311 Conn. 904, 83 A.3d 605 (2014).
This court, in considering whether the state pre-
sented sufficient evidence to support a jury finding of
‘‘serious disfigurement,’’ has relied on the following def-
initions. ‘‘To ‘disfigure’ is to ‘blemish or spoil the appear-
ance or shape of’; American Heritage Dictionary (New
College Ed. 1976); and ‘disfigurement’ is ‘[t]hat which
impairs or injures the beauty, symmetry, or appearance
of a person or . . . which renders unsightly, mis-
shapen, or imperfect, or deforms in some manner.’ Bal-
lentine’s Law Dictionary (3d Ed. 1969).’’ State v.
Barretta, 82 Conn. App. 684, 689, 846 A.2d 946, cert.
denied, 270 Conn. 905, 853 A.2d 522 (2004).
In State v. Nelson, 118 Conn. App. 831, 848, 986 A.2d
311, cert. denied, 295 Conn. 911, 989 A.2d 1074 (2010),
the defendant ‘‘pressed a knife and a knife sharpening
tool, both of which had been heated on the victim’s
stove, against the skin on the victim’s face and abdo-
men, thereby causing physical injuries.’’ At the time of
trial, nearly two years later, ‘‘the victim showed the jury
a large patch of discolored skin on the upper right
portion of his forehead, smaller areas of discolored skin
on the right side of his forehead and discolored skin in
his abdomen area.’’ (Internal quotation marks omitted.)
Id., 849. This court noted that ‘‘[s]carring of a similar
nature has been deemed sufficient to satisfy the state’s
burden of proving that a victim has sustained a serious
physical injury. See State v. Hayward, 116 Conn. App.
511, 517, 976 A.2d 791 (holding that evidence of scarring
on victim’s nose sufficient to demonstrate serious physi-
cal disfigurement), cert. denied, 293 Conn. 934, 981 A.2d
1077 (2009); State v. Anderson, [16 Conn. App. 346, 357,
547 A.2d 1368, cert. denied, 209 Conn. 828, 552 A.2d 433
(1988)] (holding that evidence of permanent scarring on
victim’s chest and abdomen sufficient to demonstrate
serious physical disfigurement).’’ State v. Nelson, supra,
850. The court in Nelson concluded that the jury ‘‘rea-
sonably could have concluded that [the victim’s scars]
constituted serious physical disfigurement because the
scars negatively affected the appearance of the skin on
his face and abdomen.’’ (Emphasis added.) Id.
In Hayward, one of the cases cited by the court in
Nelson, the victim had received two lacerations to the
nose—one on the bridge and one on the tip—from a
weapon wielded by the defendant, and each laceration
required six stitches to close. State v. Hayward, supra,
116 Conn. App. 516. The court concluded that, on the
basis of that evidence, ‘‘the jury reasonably could have
found that the lacerations and the resulting scarring on
the victim’s nose amounted to a serious disfigurement.’’
(Emphasis added.) Id.; see also State v. Nival, 42 Conn.
App. 307, 309, 678 A.2d 1008 (1996) (holding jury reason-
ably could find serious physical injury on the basis of
injury causing one-half inch permanent facial scar).
Turning to the present case, the state’s theory of the
case was that the permanent scar that resulted from
Bran’s injuries constituted a ‘‘serious disfigurement’’
and, therefore, a serious physical injury. The state pre-
sented the following evidence in support of that theory.
First, Bran herself testified about the injuries that she
sustained to her arm. She identified photographs of her
injuries that were taken by the police on the day of the
assault, which were admitted as full exhibits. She also
testified that, after her injuries healed, she was left with
a visible scar on her arm. Photographs of the scar were
taken at the time of trial—one a close up and the other
from an arms-length distance—and later admitted as
full exhibits. Those photographs clearly depict the scar
on the upper part of Bran’s forearm, and the fact that,
unless covered up, it is readily observable by anyone
who came in contact with Bran.
The state also called as a witness, Joseph Wilkerson,
the emergency room physician who treated Bran. He
explained that Bran’s injuries consisted of abrasions
and two lacerations on her left arm, which were consis-
tent with being cut by a sharp object. He described one
laceration as only three quarters of a centimeter, but
the other as four centimeters long. After cleaning the
wounds, Wilkerson testified that he sutured the
wounds. The smaller laceration needed only one suture,
but the larger cut required ten. Wilkerson identified
photographs of the wounds from the day that he treated
them. He also was shown the picture depicting the scar
on Bran’s forearm nearly two and one-half years after
the injury occurred. Wilkerson testified that the scar
was consistent with the injury received by Bran and
that it was permanent.
Accordingly, construed in a light most favorable to
upholding the verdict, the jury was presented with both
testimonial and photographic evidence that Bran sus-
tained physical injuries as a result of the defendant’s
assault on Raphael, that one of the injuries required
ten stitches to close, and that the result of that injury
was one and one-half inch, permanent scar on her fore-
arm. The defendant argues that because the scar was
not on her face, the jury could not reasonably view it
as a serious disfigurement. Our case law, however, does
not contain any such limitation or requirement. To the
contrary, we have held that scarring on far less observ-
able parts of the body can support a finding of serious
disfigurement. In Anderson, for example, the victim had
scarring on his chest and abdomen from which evidence
the court held a jury reasonably could find a serious
disfigurement. State v. Anderson, supra, 16 Conn. App.
357. Bran’s scar was permanent, easily seen two and
one-half years after the injury, and was located on the
lower part of her arm, which, depending on the clothing
she wore, was no less observable than a facial scar.
The scar certainly ‘‘negatively affected the appearance
of the skin’’ on her forearm; State v. Nelson, supra, 118
Conn. App. 850; and we cannot conclude as a matter
of law that Bran’s one and one-half inch scar from an
injury requiring ten stitches to close was any less of
a blemish or impairment to her appearance than the
relatively smaller facial scars described in other cases
that held that evidence of such scarring was sufficient
to support a jury finding of serious disfigurement. See
State v. Hayward, supra, 116 Conn. App. 516 (scar on
tip of nose from injury closed by six stitches); State
v. Nival, supra, 42 Conn. App. 308–309 (one-half inch
permanent scar on lip). Ultimately, whether Bran’s scar
was a serious disfigurement was a determination prop-
erly made by the jury on the basis of life experiences
and common sense. We will not second-guess that deci-
sion in this case.
In sum, the jury reasonably could have concluded
from the cumulative effect of the evidence presented
at trial that the state had proved beyond a reasonable
doubt that Bran suffered a physical injury that resulted
in serious disfigurement and, thus, suffered a serious
physical injury sufficient to sustain the defendant’s con-
viction of assault in the first degree. The defendant’s
insufficiency of the evidence claim, accordingly, fails.
II
The defendant next claims that he was deprived of
a fair trial due to prosecutorial improprieties during
closing argument. In particular, he argues that the pros-
ecutor improperly (1) expressed her personal opinion
about the defendant’s guilt, (2) appealed to the emo-
tions, passions, and prejudices of the jury, and (3)
expressed her opinion regarding the credibility of the
sole witness offered by the defense.4 The state argues
that, viewed in context, the challenged arguments were
not improper, and, alternatively, that any impropriety
did not amount to a due process violation. We agree
with the state that the prosecutor’s remarks were not
improper, and, on that basis, we reject the claim of
the defendant.
‘‘In analyzing claims of prosecutorial impropriety, we
engage in a two step analytical process. . . . The two
steps are separate and distinct. . . . We first examine
whether prosecutorial impropriety occurred. . . . Sec-
ond, if an impropriety exists, we then examine whether
it deprived the defendant of his due process right to
a fair trial. . . . In other words, an impropriety is an
impropriety, regardless of its ultimate effect on the fair-
ness of the trial. Whether that impropriety was harmful
and thus caused or contributed to a due process viola-
tion involves a separate and distinct inquiry. . . . [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.’’ (Internal quotation marks omitted.) State v.
Griswold, 160 Conn. App. 528, 558–59, 127 A.3d 189,
cert. denied, 320 Conn. 907, 128 A.3d 952 (2015).
If, as in the present case, the claimed prosecutorial
improprieties occurred during closing arguments, the
following additional legal principles are applicable to
our review. ‘‘[P]rosecutorial [impropriety] of a constitu-
tional magnitude can occur in the course of closing
arguments. . . . In determining whether such [an
impropriety] 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 precisely by rule and line, and something
must be allowed for the zeal of counsel in the heat of
argument. . . . Thus, as the state’s advocate, a prose-
cutor may argue the state’s case forcefully, [provided
the argument is] fair and based upon the facts in evi-
dence and the reasonable inferences to be drawn there-
from. . . .
‘‘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.
. . . If the accused [is] guilty, he should [nonetheless]
be convicted only after a fair trial, conducted strictly
according to the sound and well-established rules which
the laws prescribe. [Although] the privilege of counsel
in addressing the jury should not be too closely nar-
rowed or unduly hampered, it must never be used as
a license to state, or to comment [on], 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.) Id., 559–60.
‘‘Closing arguments of counsel, however, are seldom
carefully constructed in toto before the event; improvi-
sation frequently results in syntax left imperfect and
meaning less than crystal clear. While these general
observations in no way justify prosecutorial miscon-
duct, they do suggest that a court should not lightly
infer that a prosecutor intends an ambiguous remark
to have its most damaging meaning or that a jury, sitting
through lengthy exhortation, will draw that meaning
from the plethora of less damaging interpretations.’’
(Internal quotation marks omitted.) State v. Williams,
81 Conn. App. 1, 16–17, 838 A.2d 214, cert. denied, 268
Conn. 904, 845 A.2d 409 (2004). With these principles
in mind, we address each of the alleged improprieties
in turn.
A
The defendant first argues that, in the prosecutor’s
initial closing argument, she improperly expressed her
opinion as to the defendant’s guilt. The defendant, who
disputed the victims’ identification of him as the perpe-
trator by presenting an alibi witness, contends that the
entire purpose of the trial was for the jury to determine
whether he was the assailant, and the prosecutor’s chal-
lenged remark induced the jury to trust the judgment
of the prosecutor about his guilt rather than its own
evaluation of the evidence. The state counters that the
prosecutor was not attempting to mislead the jury and
that her challenged statement should be construed as
commentary on the weakness of the defendant’s alibi
evidence, not the defendant’s guilt. We agree with
the state.
The following additional facts are relevant to this
claim. At trial, the defendant presented an alibi witness,
a hairstylist who worked at a Stamford salon. The alibi
witness testified that the defendant was at her salon
having his hair dyed and styled from approximately
12:20 p.m. until 5:50 p.m. on the day of the assaults,
and that she never lost sight of the defendant during
that timeframe. On cross-examination, however, she
acknowledged that she had a close relationship with
the defendant’s family and that her recently deceased
brother had been a close friend of the defendant. She
did not have any written record of the defendant’s
appointment at the salon, and, although she had been
aware of the defendant’s arrest, she never informed the
police about the defendant’s whereabouts on the day
of the assaults.
At the very end of her initial closing argument, after
having marshaled the evidence regarding each element
that the state needed to prove in order to obtain a
verdict of guilty, including a thorough discussion of the
defendant’s alibi evidence, the prosecutor made the
following statement: ‘‘The evidence shows that with
all the elements in this case—has been proven. The
defendant is the person who did it. There’s really no
dispute about that. He intended to cause serious physi-
cal injury to [Raphael]. Could there be any question as
to whether he intended to cause the serious physical
injury in this case, that he in fact caused those serious
physical injuries to both [Raphael] and [Bran]? And
you’ll listen to the judge’s instruction on that. And that
he [caused] it with a dangerous instrument. And the
judge is going to give you a definition of that and listen
to it in the instruction. But the evidence is there to
support.’’ The defendant focuses our attention to that
part of the statement suggesting ‘‘[t]here’s really no
dispute’’ that ‘‘[t]he defendant is the person who did it.’’
A prosecutor should not ‘‘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.’’ (Internal quotation marks omit-
ted.) State v. Gibson, 302 Conn. 653, 660, 31 A.3d 346
(2011). A prosecutor has a duty to refrain from stigma-
tizing a defendant, and although the prosecutor ‘‘has a
right to argue that the evidence proves the defendant
guilty as charged in the indictment,’’ he or she cannot
characterize the defendant as guilty. (Internal quotation
marks omitted.) See State v. Thompson, 266 Conn. 440,
472–73, 832 A.2d 626 (2003).
Here, the prosecutor’s comments, when considered
in the context of the prosecutor’s remarks as a whole,
do not amount to an improper opinion regarding the
defendant’s guilt, but an argument asking the jury to
reject the defendant’s alibi defense. As the defendant
acknowledges, his primary defense to the charges was
that someone else must have assaulted Bran and
Raphael. He claimed to have an alibi and, therefore,
could not have been the ‘‘person who did it.’’ The prose-
cutor addressed that defense in detail early in her clos-
ing argument as well as marshaling the evidence that the
jury should consider in deciding whether the defendant
was the perpetrator. The prosecutor highlighted that
both victims knew the defendant prior to the incident
and positively identified him as their assailant. She
argued that, in light of the circumstances and the evi-
dence, ‘‘there’s no doubt it was the defendant that came
in and did this.’’
Accordingly, in wrapping up her argument, the prose-
cutor again returned to this theme, arguing: ‘‘The defen-
dant is the person who did it. There’s really no dispute
about that.’’ Given the generous latitude that a prosecu-
tor is entitled to in crafting and delivering closing argu-
ments, we are convinced that the statement at issue
was intended as a reminder to the jury of the weakness
of the defendant’s alibi defense, not as an improper
opinion as to the defendant’s guilt or innocence. In
other words, we conclude that this particular statement
was not improper.
B
The defendant next argues that, in describing the
extent of Bran’s injuries, the prosecutor made an
improper comment that appealed to the passions and
emotions of the jurors by asking them to identify with
her. The state responds that the prosecutor’s discussion
of Bran’s injuries constituted proper argument demon-
strating that the state had met its burden of proving
that Bran sustained a serious physical injury. We agree
with the state.
‘‘A prosecutor may not appeal to the emotions, pas-
sions and prejudices of the jurors. . . . When the pros-
ecutor appeals to emotions, he invites the jury to decide
the case, not according to a rational appraisal of the
evidence, but on the basis of powerful and irrelevant
factors which are likely to skew that appraisal.’’ (Inter-
nal quotation marks omitted.) State v. Warholic, 278
Conn. 354, 376, 897 A.2d 569 (2006). For example, it is
improper for the prosecutor to ‘‘plea for sympathy for
the victim’’ or ‘‘to encourage the jury to identify with the
victim.’’ (Citations omitted; internal quotation marks
omitted.) See State v. Long, 293 Conn. 31, 59, 975 A.2d
660 (2009). ‘‘It must be acknowledged[,] [however,] that
the line between comments that risk invoking the pas-
sions and prejudices of the jurors and those that are
permissible rhetorical flourishes is not always easy to
draw. The more closely the comments are connected
to relevant facts disclosed by the evidence . . . the
more likely they will be deemed permissible.’’ State v.
Albino, 312 Conn. 763, 773–74, 97 A.3d 478 (2014) (hold-
ing that prosecutor’s comments that victim was ‘‘pep-
pered with bullets’’ and that ‘‘the first bullet tore into
his body’’ were not improper appeals to jury’s emotions
because they were ‘‘factually accurate descriptions of
the evidence that were not unduly provocative’’).
In the present case, the prosecutor made the follow-
ing argument regarding the state’s burden of showing
that Bran sustained a serious physical injury. ‘‘Another
part we have to prove is that the defendant caused, in
fact, serious physical injury. . . . Now, [Bran] was—
[Bran] received a slash and puncture to her arm where
she received numerous stitches to close it. And she has
permanent scarring on her forearm. When you listen
to the definition of serious physical injury the judge is
going, one of the types of serious physical injury is
serious disfigurement. And it’s up to you as the jury
to decide, if a woman has a permanent scar such as
hers on her forearm in an area that is seen—can be
easily seen in most clothes that you wear—anytime
she wears anything that doesn’t go past her elbow,
she’s going to have this scar on her arm—it’s up to you
as jurors to decide whether or not that is permanent
disfigurement and if that would qualify as serious
physical injury. And I think if you listen to the judge’s
instructions and you look at the photographs and you
talk about what it would be like to walk around on
the—with a scar in an area on your body that’s fre-
quently seen, then you would agree that the evidence
shows that she was—it was a serious physical injury.’’
(Emphasis added.)
The defendant argues that the emphasized portion
of the prosecutor’s arguments appealed to the emotions
of the predominantly female jury—four of the six jurors
were female—and tried to evoke sympathy for the vic-
tim as a woman, asking the jurors to consider ‘‘the
hardship that she might experience when wearing par-
ticular clothing.’’ The prosecutor’s arguments, however,
were not unduly provocative and did not stray from
facts in evidence.
The state had the burden of proving that Bran sus-
tained a serious physical injury, and, as discussed in
section I of this opinion, it sought to prove this by
showing that Bran was seriously disfigured. The state
submitted photographs into evidence that showed Bran
had a large scar as a result of her injuries and that the
scar was on a part of her arm that often would be
visible. Accordingly, the prosecutor’s statement that the
scar would be visible ‘‘anytime she wears anything that
doesn’t go past her elbow’’ was factual and also relevant
to the jury’s consideration of whether the scar qualified
as a serious disfigurement.
We similarly are not persuaded that the prosecutor’s
reference to Bran as a woman—something that is both
fact-based and easily observable by the jury—was an
attempt to evoke the sympathy of female jurors. We
recognize that a similar scar on a man arguably might
be no less disfiguring in the eyes of the law. The prosecu-
tor, however, except for this one brief reference to
Bran’s gender, did not attempt to argue at length that
this type of injury is more significant to women in gen-
eral or that the female jurors should sympathize with
Bran or consider what this type of injury might mean
to them. We simply cannot infer on the basis of this sole
reference to her gender that the remark was intended to
or, in fact, would have the effect of, unduly arousing
the sympathy of the female jurors. We conclude that
the defendant’s claim that the prosecutor’s remarks
improperly sought to enflame the jury’s emotions or
evoke sympathy for the victim lacks merit.
C
Finally, the defendant argues that, during rebuttal
closing argument, the prosecutor improperly expressed
her personal opinion about the credibility of the defen-
dant’s alibi witness. In support of that argument, the
defendant points to the following statement: ‘‘But listen
to what [the judge] has to say because, you know—
was [the alibi witness] biased? Yes. I mean the evidence
is that she was biased in favor of the defendant. I mean
that’s—that’s obvious.’’ The state contends that the
challenged argument was proper because, rather than
expressing an opinion about the witness’ credibility,
the prosecutor merely suggested to the jury that it could
reject the alibi witness’ testimony as false given the
significant evidence that the witness was biased and,
accordingly, motivated to lie. Again, we agree with
the state.
‘‘[I]t is well established that a prosecutor may argue
about the credibility of witnesses, as long as her asser-
tions are based on evidence presented at trial and rea-
sonable inferences that jurors might draw therefrom.
. . . Moreover, [i]n deciding cases . . . [j]urors are
not expected to lay aside matters of common knowl-
edge or their own observations and experiences, but
rather, to apply them to the facts as presented to arrive
at an intelligent and correct conclusion. . . . There-
fore, it is entirely proper for counsel to appeal to [the
jurors’] common sense in closing remarks. . . . Our
jurisprudence permits these statements from the prose-
cution, if properly presented.’’ (Internal quotation
marks omitted.) State v. O’Brien-Veader, 318 Conn. 514,
547, 122 A.3d 555 (2015).
In the present case, we view the prosecutor’s state-
ment not as her own opinion about the credibility of
the defendant’s alibi witness, but as an argument focus-
ing the jury’s attention on the evidence and the infer-
ence it could draw therefrom in assessing whether to
believe the defendant’s alibi witness. The state had pre-
sented evidence from which the jury reasonably could
have found that the alibi witness was biased in favor
of the defendant and should not be believed. For exam-
ple, in its cross-examination of the alibi witness, the
state established that the witness knew the defendant
and had a close relationship with his family. The wit-
ness’ brother, who passed away shortly following the
defendant’s arrest in this matter, was a very close friend
of the defendant. Furthermore, the evidence showed
that the witness did not have written records to back
up the defendant’s alibi, and was unable to explain why
she had not alerted the police about the alibi after she
learned of the defendant’s arrest.
Although the prosecutor answered ‘‘yes’’ to her own
question about whether the alibi witness was biased,
she immediately followed that answer by indicating that
it was the evidence that made the alibi witness’ bias
‘‘obvious.’’ Given that we must allow some leeway to
the prosecutor in crafting her argument, we conclude
that the prosecutor’s remarks regarding the credibility
of the defendant’s alibi witness were made on the basis
of evidence before the jury and were not simply the
prosecutor’s opinion. Her statement, therefore, was
not improper.
Having rejected the defendant’s claim of prosecu-
torial impropriety on the basis that none of the prosecu-
tor’s challenged statements were improper, it is
unnecessary to consider whether those statements
deprived the defendant of a fair trial.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant, who was on probation at the time of the assaults, also
was charged in a separate information with two counts of violating his
probation in violation of General Statutes § 53a-32. The assault and violation
of probation charges were consolidated for purposes of trial, and the court
heard evidence on the violation of probation charges outside the presence
of the jury. The court subsequently rendered a judgment finding that he had
violated his probation. The defendant has not raised any claims on appeal
with respect to that judgment.
2
Raphael’s injuries were life threatening. His laceration began at the top
of his left ear and went down and across the left side of his face. The wound
was very deep, severed a facial nerve, and cut a branch of the jugular vein,
which caused substantial blood loss. His injuries required immediate surgery
and resulted in both permanent scarring and nerve damage to his face.
3
The court also sentenced the defendant to a concurrent term of eighteen
months for violating his probation. See footnote 1 of this opinion.
4
We note that the defendant never raised any objection to the prosecutor’s
remarks at the time of trial. Nevertheless, our Supreme Court has indicated
that a defendant’s failure to object to alleged prosecutorial improprieties
at trial, although certainly a significant factor in our consideration of whether
the defendant was deprived of a fair trial, does not render the defendant’s
claim unreviewable or require that his claim be reviewed as unpreserved
under the rubric set forth in State v. Golding, 213 Conn. 233, 567 A.2d 823
(1989). See State v. Stevenson, 269 Conn. 563, 572–76, 849 A.2d 626 (2004).