State v. A. M.

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STATE OF CONNECTICUT v. A. M.*
(SC 19497)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued September 16—officially released December 23, 2016**
Jennifer F. Miller, deputy assistant state’s attorney,
with whom, on the brief, were Stephen J. Sedensky
III, state’s attorney, and Colleen P. Zingaro, assistant
state’s attorney, for the appellant (state).
Bethany L. Phillips, for the appellee (defendant).
Opinion
EVELEIGH J. In this certified appeal, we consider
whether the state deprived the defendant, A. M., of
his fifth amendment right to remain silent when the
prosecutor twice noted during closing arguments that
the defendant had not testified in his own defense. After
a trial, a jury found the defendant guilty of multiple
offenses, including sexual assault in the first degree,
attempt to commit sexual assault in the first degree,
and risk of injury to a child.1 The trial court rendered
judgment in accordance with the jury’s verdict, and
the defendant appealed to the Appellate Court. In his
appeal, the defendant claimed, among other things, that
the prosecutor’s comments during closing argument
were improper because they infringed on his fifth
amendment right to remain silent, depriving him of a
fair trial. The Appellate Court agreed and reversed the
judgment and remanded the case for a new trial. State
v. A. M., 156 Conn. App. 138, 156, 111 A.3d 974 (2015).
We agree that the prosecutor’s comments were
improper and we find that the state has failed in its
burden of proof to show that the comments were harm-
less beyond a reasonable doubt. Therefore, we affirm
the judgment of the Appellate Court.
The jury reasonably could have found the following
facts. The defendant began dating the victim’s mother
in 2003 and moved in with the mother and her three
children later that same year. In August, 2009, the vic-
tim, who was approximately ten years old at the time,
told her mother’s cousin that the defendant had
squeezed her buttocks while she was washing dishes.
The cousin alerted the victim’s mother who then
removed the defendant from the home. Approximately
two weeks later, the victim’s mother allowed the defen-
dant back into the home. She did not call the police or
alert the victim’s father to the allegations. Seven months
after the victim first disclosed her allegations of abuse,
a member of the victim’s extended family went to the
victim’s father and spoke to him about the allegations.
Soon thereafter, the victim’s father questioned the vic-
tim about the allegations, which she confirmed as true.
Later that same day, he filed a report with Danbury
Police Department.
After receiving the report, the police commenced an
investigation. Officers interviewed the victim, who con-
firmed that the defendant had been touching her inap-
propriately. Police officers also interviewed the
defendant, who gave oral and written statements to
police discussing the allegations and denying that he
had any inappropriate contact with the victim.
At the request of the police, the victim underwent a
forensic interview, which was video recorded. In the
interview, the victim described numerous incidents in
which the defendant sexually abused her. She stated
that several times when she was washing dishes, the
defendant came up behind her and ‘‘squeezed,’’
‘‘smacked,’’ and otherwise touched her buttocks while
telling her that she was pretty. She also stated that on
other occasions, the defendant squeezed, touched, and
tried to lick her breasts. The victim recalled another
occasion during which the defendant carried the victim
into his room, told her he loved her and pulled down
her pants. He then pulled open her legs and licked her
genitals. Finally, the victim stated that the defendant
once pinned her in the corner of a room, made her lay
on the floor, pulled down her pants, and placed his
penis on her buttocks. The defendant then attempted
to penetrate the victim’s anus with his penis, but was
unable to do so. The victim initially told the forensic
interviewer that these events occurred after August,
2009, when the defendant had returned after being
kicked out of the home, but later, she clarified that
these incidents occurred prior to August, 2009.
The victim also underwent a physical examination at
the request of the police. The examination did not reveal
any physical evidence of abuse. The examining physi-
cian later testified at trial, however, that the lack of
physical evidence did not prove the absence of abuse
based on the victim’s description of how the abuse
occurred.
On the basis of the information gathered during their
investigation, the police obtained a warrant for the
defendant’s arrest, and the state later charged the defen-
dant with numerous crimes relating to sexual assault
and risk of injury to a child.
At trial, the victim testified about the incidents in
which the defendant grabbed her buttocks. At one point
during her testimony, the victim stated that the defen-
dant had squeezed her buttocks six or seven times.
Subsequently, she testified that he had done so only
two or three times. When the prosecutor questioned
the victim about the other instances of abuse—the
defendant licking her genitals and attempting to pene-
trate her—the victim would not discuss them, saying,
‘‘I don’t want to talk about this. Can’t.’’ After the victim
refused to discuss these incidents, the trial court admit-
ted into evidence the video recording of the victim’s
forensic interview, which the jury was able to consider
as substantive evidence of guilt pursuant to State v.
Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied,
479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).
The portion of the video recording played at trial
included the victim’s descriptions of the incidents that
she was unwilling to testify about at trial. Defense coun-
sel was able to extensively cross-examine the victim
about the allegations, including those made during the
forensic interview and depicted in the video recording.
The state presented expert testimony to explain why
the victim’s recollection of when the sexual abuse
occurred might have varied. The state’s expert, Larry
M. Rosenberg, a clinical psychologist, testified that chil-
dren view and experience time differently than adults.
Rosenberg also testified that the effect of trauma on
memory is commonly to make it less accurate. Noting
that the victim was only approximately ten years old
at the time of the assaults, Rosenberg testified that
children between the ages of eight and ten years old
were not as capable of the abstract reasoning and
enhanced judgment possessed by adolescents, and
though they could be more suggestible, they were less
likely to make false reports than adolescents.
In his defense, the defendant presented witnesses to
challenge the victim’s credibility. The defendant primar-
ily relied upon the testimony of the victim’s mother, who
testified regarding the defendant’s positive character
traits and her disbelief that he would have committed
these crimes—testimony that the state impeached with
evidence of the defendant’s history of violence toward
her and other women. The defendant also presented
his own expert who testified, contrary to the state’s
expert, that a ten year old child’s memory skills are
the same as an adult’s, and that such a child would
remember traumatic events as clearly as other memo-
ries, if not better. The defendant did not testify at trial.
After the close of evidence, the state and defense
counsel gave closing arguments to the jury. During the
state’s rebuttal argument, the prosecutor twice
remarked to the jury that the defendant had not tes-
tified.
The prosecutor made the first remark while she
reviewed the contents of the written statements that
the defendant gave to the police, which had been admit-
ted into evidence during trial. After summarizing por-
tions of the testimony from the victim’s mother, the
prosecutor turned her attention to the defendant’s state-
ments to the police, telling the jury: ‘‘This is the other
thing. Counsel did not present his client to testify. That’s
their right guaranteed by the constitution if any of us
were accused. But there is evidence as to things [the
defendant] said. His sworn statement. Also, testimony
by a couple of police officers as to what he said to them,
and that’s before you.’’ The prosecutor then discussed
portions of the defendant’s statements to the police,
before returning to discuss additional portions of the
testimony of the victim’s mother and arguing that her
testimony lacked credibility.
Thereafter, the prosecutor again turned her attention
to the defendant’s statements to the police, this time
to argue that they also lacked credibility. Specifically,
the prosecutor stated: ‘‘You’ve got to look at the credi-
bility of the defendant as well. I mean, he didn’t testify.
Again, that’s his right, but there are some statements
that are contained in the evidence. One [of] which that
I’ve just referred to was his sworn statement as well
as some statements by the police that he made the night
he was arrested. Statements like, ‘I’ve never seen her
naked.’ Three year olds in the house? We’re all parents.
Come on, never? Never. Never touched or tickled her
ever. Really? Does that make sense?’’ The prosecutor
then went on to point out inconsistencies within the
defendant’s own statements and between the defen-
dant’s statements and some of the testimony given at
trial.
Defense counsel did not object to either of the prose-
cutor’s comments about the defendant’s failure to tes-
tify, either during or after the state’s argument. After
the state’s rebuttal argument, counsel did, however,
make an unrelated objection about a different aspect
of the prosecutor’s rebuttal argument.
After resolving the unrelated objection, the court then
instructed the jury on the law that applied to the case.
Although the defendant had not objected to the prosecu-
tor’s comments, the court’s charge nevertheless
included the following instruction about the defendant’s
decision not to testify, as required by General Statutes
§ 54-84 (b): ‘‘Now, the defendant has elected not to
testify in this particular case. An accused has the right
and the option to testify or not to testify at his or her
own trial, and is under no obligation to testify. He has
a constitutional right that is protected by the [United
States constitution] as well as the Connecticut [consti-
tution] not to testify, and you may draw no unfavorable
inferences from the defendant’s choice not to testify in
this particular instance.’’
After receiving the court’s instructions, the jury
retired to deliberate and ultimately returned a verdict
finding the defendant guilty of all but one charge. The
trial court thereafter rendered judgment in accordance
with the jury’s verdict, issuing a total effective sentence
of twenty years of imprisonment, execution suspended
after twelve years, followed by twenty years of proba-
tion with special conditions.
The defendant appealed from the judgment of the
trial court to the Appellate Court, claiming, among other
things, that the prosecutor’s references to the defen-
dant’s decision not to testify were improper and
deprived him of his right to a fair trial.2 The Appellate
Court agreed with the defendant and reversed the trial
court’s judgment. State v. A. M., supra, 156 Conn. App.
148–49, 156. We granted the state’s petition for certifica-
tion on the following issue: ‘‘Did the Appellate Court
properly determine that certain comments made by the
prosecutor amounted to prosecutorial improprieties
and that such improprieties deprived the defendant of
his due process rights to a fair trial?’’ State v. A. M.,
317 Conn. 910, 116 A.3d 309 (2015). On appeal to this
court, the state claims that the Appellate Court improp-
erly concluded that the prosecutor’s comments were
improper. The state also contends that even if the com-
ments were improper, they were harmless beyond a
reasonable doubt.
As a threshold matter, we must revise the certified
question and clarify the proper standard of review. The
Appellate Court treated the defendant’s claim as impli-
cating his general due process right to a fair trial rather
than as a claim arising under the fifth amendment right
to remain silent. The Appellate Court thus decided the
defendant’s appeal using the due process standard for
prosecutorial misconduct claims from State v. Wil-
liams, 204 Conn. 523, 540, 529 A.2d 653 (1987), to con-
clude that the prosecutor’s comments in the present
case deprived the defendant of his due process right
to a fair trial. State v. A. M., supra, 156 Conn. App.
156. We have previously clarified, however, that the
Williams standard applies only when a defendant
claims that a prosecutor’s conduct did not infringe on
a specific constitutional right, but nevertheless
deprived the defendant of his general due process right
to a fair trial. State v. Payne, 303 Conn. 538, 562–63,
34 A.3d 370 (2012). For example, in Williams, the defen-
dant argued that the prosecutor’s comments deprived
him of a fair trial because the prosecutor unfairly
expressed his personal opinions about a witness’ credi-
bility and appealed to the passions and emotions of the
jurors. State v. Williams, supra, 540–41. There was no
claim in Williams that the prosecutor’s comments
infringed an enumerated constitutional right, and, there-
fore, the court applied the general due process standard
for prosecutorial impropriety claims. Id., 539–40. Under
the Williams general due process standard, the defen-
dant has the burden to show both that the prosecutor’s
conduct was improper and that it caused prejudice to
his defense. Id.; see also State v. Payne, supra, 562–63.
We held in Payne, however, that a different standard
applies when the defendant claims that the prosecu-
torial impropriety ‘‘infringed a specifically enumerated
constitutional right, such as the fifth amendment right
to remain silent . . . .’’ (Emphasis added.) State v.
Payne, supra, 303 Conn. 562. If the defendant raises
this type of claim, the defendant initially has the burden
to establish that a constitutional right was violated. Id.
If the defendant establishes the violation, however, the
burden shifts to the state to prove that the violation
was harmless beyond a reasonable doubt.3 Id.
Because the defendant’s claim in the present case
implicated his fifth amendment right to remain silent,
we apply the harmless error standard as called for in
Payne rather than the general due process standard
from Williams. We therefore restate the certified ques-
tion to ask: ‘‘Did the Appellate Court properly determine
that certain comments made by the prosecutor violated
the defendant’s right to remain silent and, if so, was
the violation harmless beyond a reasonable doubt?’’
Turning to the merits of the present case, we first
consider whether the prosecutor’s comments violated
the defendant’s fifth amendment right to remain silent.4
The fifth amendment prohibits the state from forcing
the defendant to be a witness against himself, and the
United States Supreme Court has concluded that this
protection also prohibits prosecutors from commenting
at trial on the defendant’s decision not to testify. Griffin
v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L.
Ed. 2d 106 (1965); see also State v. Parrott, 262 Conn.
276, 292, 811 A.2d 705 (2003) (‘‘[i]t is well settled that
comment by the prosecuting attorney . . . on the
defendant’s failure to testify is prohibited by the fifth
amendment to the United States constitution’’ [internal
quotation marks omitted]). In Griffin, the court rea-
soned that allowing a prosecutor to comment on the
defendant’s refusal to testify would be equivalent to
imposing a penalty for exercising his constitutional
right to remain silent.5 Griffin v. California, supra, 614.
In the present case, the prosecutor’s two statements
at issue clearly violated the defendant’s fifth amend-
ment right to remain silent. The prosecutor’s remarks
during closing arguments directly and unambiguously
called the jury’s attention to the defendant’s decision
not to testify. This is precisely the type of comment
proscribed by Griffin.6
The state argues, however, that despite the prosecu-
tor’s direct reference to the defendant’s failure to tes-
tify, the comments nevertheless did not violate the
protections of the fifth amendment. According to the
state, we must apply what is known as the ‘‘ ‘naturally
and necessarily’ ’’ test to determine whether a prosecu-
tor’s comments violate the fifth amendment. That test
asks whether ‘‘the language used [by the prosecutor
was] manifestly intended to be, or was . . . of such a
character that the jury would naturally and necessarily
take it to be a comment on the failure of the accused
to testify.’’ (Emphasis added; internal quotation marks
omitted.) State v. Haase, 243 Conn. 324, 333, 702 A.2d
1187 (1997), cert. denied, 523 U.S. 1111, 118 S. Ct. 1685,
140 L. Ed. 2d 822 (1998). The state argues that a prosceu-
tor’s statements violate the fifth amendment only if they
‘‘ ‘naturally and necessarily’ ’’ imply to the jury that it
should draw an adverse inference and infer guilt from
the defendant’s silence. According to the state, the pros-
ecutor’s comments in the present case did not violate
the fifth amendment because the comments did not
naturally and necessarily ask the jury to infer the defen-
dant’s guilt from the defendant’s silence, but were made
to remind the jury that although the defendant had not
testified, the jury still had evidence of his statements
before it that it could consider. We disagree.
First, the state’s reliance on the ‘‘naturally and neces-
sarily’’ test is misplaced. The ‘‘naturally and necessarily’’
standard applies only when it is unclear whether the
prosecutor’s comments at issue referred to the defen-
dant’s failure to testify, not when the prosecutor makes
comments that explicitly refer to the defendant’s
silence. See, e.g., United States v. Tanner, 628 F.3d 890,
899 (7th Cir. 2010) (‘‘[a]bsent [a] direct comment, [t]he
right against self-incrimination is violated only when
. . . the remark was of such a character that the jury
would naturally and necessarily take it to be a comment
on the defendant’s silence’’ [internal quotation marks
omitted]); Lent v. Wells, 861 F.2d 972, 975 (6th Cir. 1988)
(noting that direct reference to failure to testify clearly
violates fifth amendment, while indirect remark is pro-
hibited only if it ‘‘ ‘naturally and necessarily’ ’’ would
be understood as reference to defendant’s silence); see
also State v. Ruffin, 316 Conn. 20, 31, 110 A.3d 1225
(2015) (applying ‘‘ ‘naturally and necessarily’ ’’ test to
determine if prosecutor’s comments indirectly referred
to defendant’s failure to testify); State v. Colon, 70 Conn.
App. 707, 713–14, 799 A.2d 317 (noting that even indirect
remark about defendant’s failure to testify can violate
fifth amendment if it ‘‘naturally and necessarily’’ would
be understood as reference to defendant’s silence at
trial), cert. denied, 261 Conn. 933, 806 A.2d 1067 (2002).
For example, in State v. Ruffin, supra, 316 Conn. 30,
the prosecutor stated, during closing argument, that no
witness had controverted the victim’s testimony, and
the defendant claimed that this statement was a com-
ment on his failure to testify. Because the prosecutor
had not directly mentioned the defendant’s failure to
testify, we used the ‘‘ ‘naturally and necessarily’ ’’ stan-
dard to determine whether the jury would nevertheless
have understood the prosecutor’s statement as referring
to the defendant’s failure to testify. Id., 29. Using this
standard, we concluded that the most reasonable inter-
pretation of the comment was that it referred to the
credibility of the victim, and thus did not ‘‘naturally and
necessarily’’ refer to the defendant’s failure to testify.
Id., 31. As a result, we concluded that the comments
did not refer to the defendant’s failure to testify and
were therefore not improper. Id., 32.
In the present case, however, there is no question
that the prosecutor referred directly to the defendant’s
failure to testify. There is, therefore, no need to apply
the ‘‘naturally and necessarily’’ test to determine
whether the comments violated the fifth amendment.
Second, to violate the fifth amendment, the prosecu-
tor’s comments need not imply that the jury should
draw an adverse inference from the defendant’s silence.
It is enough that the comment by an adverse party calls
the jury’s attention to the defendant’s silence because
any such comment ‘‘heighten[s] the jury’s awareness
of the defendant’s silence, namely, his failure to answer
to the state’s charges . . . [and] is improper.’’ State v.
Smalls, 78 Conn. App. 535, 543, 827 A.2d 784, cert.
denied, 266 Conn. 931, 837 A.2d 806 (2003). When the
defendant chooses not to testify, he takes the risk that
the jury will view his silence with skepticism—a prose-
cutor’s explicit reminders to the jury of the defendant’s
decision serves only to heighten this risk, burdening
the defendant’s constitutional right to remain silent.
Id.; see also Griffin v. California, supra, 380 U.S. 614.
Although the extent to which the prosecutor’s com-
ments implied that the jury should hold the defendant’s
silence against him may relate to the harmfulness of
the violation, it does not impact our conclusion that a
violation occurred in the first place.
Because the defendant here has established that the
prosecutor violated his fifth amendment rights by
directly referencing his failure to testify, we next must
determine whether the state has proven beyond a rea-
sonable doubt that the violation was harmless. ‘‘[T]here
may be some constitutional errors which in the setting
of a particular case are so unimportant and insignificant
that they may, consistent with the [f]ederal [c]onstitu-
tion, be deemed harmless, not requiring the automatic
reversal of the conviction.’’ Chapman v. California,
386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967);
see also United States v. Hasting, 461 U.S. 499, 509,
103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983) (‘‘[i]t is the duty
of a reviewing court to consider the trial record as a
whole and to ignore errors that are harmless, including
most constitutional violations’’). The state has the bur-
den to prove that this error was harmless beyond a
reasonable doubt. State v. Payne, supra, 303 Conn. 563
(‘‘if the defendant raises a claim that the prosecutorial
improprieties infringed a specifically enumerated con-
stitutional right, such as the fifth amendment right to
remain silent . . . and the defendant meets his burden
of establishing the constitutional violation, the burden
is then on the state to prove that the impropriety was
harmless beyond a reasonable doubt’’). The focus of
our harmless error inquiry is on whether the state has
demonstrated that the otherwise improper comments
did not influence the outcome of the trial. United States
v. Hasting, supra, 510–11; Chapman v. California,
supra, 24.
Applying this test to the present case, we are con-
vinced that the state has not met its burden of showing
that the comments were harmless beyond a reasonable
doubt. Although we are not required to do a complete
Williams analysis due to the nature of the right
infringed, we find the Williams factors to be a useful
guide in our evaluation of whether the state has met
its burden of proof to show harmlessness beyond a
reasonable doubt.7 ‘‘We are mindful throughout this
inquiry, however, of the unique responsibilities of the
prosecutor in our judicial system. A prosecutor is not
only an officer of the court, like every other attorney,
but is also a high public officer, representing the people
of the [s]tate, who seek impartial justice for the guilty
as much as for the innocent. . . . By reason of his
[or her] office, [the prosecutor] usually exercises great
influence upon jurors. [The prosecutor’s] conduct and
language in the trial of cases in which human life or
liberty are at stake should be forceful, but fair, because
he [or she] represents the public interest, which
demands no victim and asks no conviction through the
aid of passion, prejudice or resentment. If the accused
be guilty, he [or she] should [nonetheless] be convicted
only after a fair trial, conducted strictly according to
the sound and [well established] rules which the laws
prescribe. While the privilege of counsel in addressing
the jury should not be too closely narrowed or unduly
hampered, it must never be used as a license to state,
or to comment upon, or to suggest an inference from,
facts not in evidence, or to present matters which the
jury [has] no right to consider.’’ (Internal quotation
marks omitted.) State v. Singh, 259 Conn. 693, 701–702,
793 A.2d 226 (2002). With that proviso in mind, we now
turn to the Williams factors for guidance.
First, as we noted previously, there is no question
that the comments of the prosecutor were not invited
by either the argument or conduct of defense counsel.
Second, the remarks of the prosecutor were particularly
severe. The state argues that the prosecutor’s remarks
were not of such a character that the jury would ‘‘natu-
rally and necessarily’’ have taken them to be an adverse
comment on the defendant’s failure to testify. It argues
that their context diluted any impropriety and demon-
strated a purpose unrelated to the impropriety, namely,
to focus on the statements given by the defendant to
the police. We disagree. The statements of the prosecu-
tor were particularly severe in this case because the
prosecutor, as an officer of the court, violated a state
statute, § 54-84 (a), by commenting on the fact that the
defendant did not testify, in open court, and did it on
two occasions. The prosecutor then went on to tell the
jurors that they could evaluate the credibility of the
defendant through the statements he gave to the police,
yet the only charge that the judge gave regarding credi-
bility related to witnesses who testified.8 In spite of the
prosecutor’s comments asking the jurors to judge the
defendant’s credibility by the statements he gave to
the police, the jury was instructed by the judge that
credibility related to witnesses who testified. Thus, the
prosecutor, through her statements on credibility, was
reminding the jurors again that the defendant did not
testify. The state argues that the fact that the defense
counsel did not object to the prosecutor’s comments,
either during the prosecutor’s argument or afterward,
weighs heavily in any analysis of the harmfulness of
the statements. We acknowledge that the failure to
object on the part of defense counsel is certainly a
factor to consider. We note that, in nearly all cases
where defense counsel fails to object to and request a
specific curative instruction in response to a prosecu-
torial impropriety, especially an impropriety that we do
not consider to be particularly egregious, and the
court’s general jury instruction addresses that impropri-
ety, we have held that the court’s general instruction
cures the impropriety. See, e.g., State v. Jones, 320
Conn. 22, 38–39, 128 A.3d 431 (2015); State v. Luster,
279 Conn. 414, 446, 902 A.2d 636 (2006); State v. War-
holic, 278 Conn. 354, 402, 897 A.2d 569 (2006); State v.
Stevenson, 269 Conn. 563, 597–98, 849 A.2d 626 (2004).
In fact, we have noted that, ‘‘defense counsel’s failure
to object to the prosecutor’s argument when it was
made suggests that defense counsel did not believe that
it was unfair in light of the record of the case at the
time.’’ (Internal quotation marks omitted.) State v.
Ceballos, 266 Conn. 364, 414, 832 A.2d 14 (2003). We
have recognized, nevertheless, that defense counsel
may elect not to object ‘‘for tactical reasons, namely,
because he or she does not want to draw the jury’s
attention to it or because he or she wants to later refute
that argument.’’ (Internal quotation marks omitted.) Id.9
If, however, defense counsel fails to object to particu-
larly egregious or pervasive misconduct, and the gen-
eral jury instructions do not specifically address the
prosecutor’s misconduct, we have held that the general
jury instructions were insufficient to cure the miscon-
duct, in spite of defense counsel’s failure to object.
We have stated that prosecutorial misconduct can be
‘‘sufficiently egregious to overcome the suggestion that
defense counsel did not think it was unfair at the time.’’
Id., 415; id. (concluding that prosecutorial statements,
relating to comments on veracity of other witnesses and
inflammatory religious comment, were severe despite
defense counsel’s failure to object). Further, our case
law has recognized that ‘‘the defendant’s failure to
object at trial to each of the occurrences that he now
raises as instances of prosecutorial impropriety, though
relevant to our inquiry, is not fatal to review of his
claims.’’ (Internal quotation marks omitted.) State v.
Taft, 306 Conn. 749, 762, 51 A.3d 988 (2012). In the
present case, we already have decided that the prosecu-
tor’s comments were particularly egregious. Therefore,
we follow cases such as State v. Angel T., 292 Conn.
262, 291, 973 A.2d 1207 (2009), and State v. Maguire,
310 Conn. 535, 560–61, 78 A.3d 828 (2013), wherein
we have held that in instances of particularly grievous
improprieties the failure to object is overcome by a
general instruction that did not fully address the impro-
priety. In Angel T., for instance, we concluded that the
general instructions were insufficient to cure miscon-
duct that had occurred repeatedly throughout the trial
because the general jury instructions did not directly
address all of the misconduct. State v. Angel T., supra,
291. We concluded that the prosecutor had improperly
suggested that the defendant had sought the aid of
counsel prior to being charged with a crime because
he had something to hide. Id., 290. The prosecutor
repeatedly elicited improper evidence about the defen-
dant retaining counsel, first through direct examination
of a police officer and cross-examination of the defen-
dant, and then by discussing that testimony at length
during opening and rebuttal summations. Id. The jury
instructions addressed one aspect of the impropriety—
emphasizing that attorneys’ arguments were not evi-
dence—but the instructions did not specifically address
the prosecutor’s suggestion that the defendant’s choice
to retain counsel indicated that he had something to
hide. We found that although the general jury instruc-
tions might have mitigated some of the harm from the
improprieties, they did not address all of the improprie-
ties, and, therefore, were not sufficiently curative. Id.,
291 and n.22.
State v. Maguire, supra, 541, involved a mother who
hired the defendant to help her care for her four chil-
dren. Subsequently, the defendant was charged with
two counts of risk of injury to a child and one count
each of the crimes of sexual assault in the fourth degree
and attempt to commit sexual assault in the first degree
involving one of the children. Id., 544. Maguire also
involved a forensic interview that the victim had with
a multidisciplinary team of mental health and law
enforcement employees, ‘‘all of whom work[ed] collab-
oratively to investigate and treat cases of reported sex-
ual abuse.’’ Id., 543. In Maguire, the defendant claimed
that ‘‘the prosecutor engaged in impropriety by repeat-
edly asserting, during rebuttal closing argument, that
both the defendant and defense counsel were asking
the jury to ‘condone child abuse’ and by claiming, inter
alia, that defense counsel had ‘lied’ to the victim during
cross-examination, that the defendant’s testimony was
‘coached’ and that the defense strategy was a game of
‘smoke and mirrors . . . .’ ’’ Id., 545. The defendant
also contended that the prosecution engaged in impro-
priety during defense counsel’s cross-examination of
the director of the multidisciplinary team. Id. Specifi-
cally, on appeal, the defendant asserted that the prose-
cutor suggested, contrary to the assertions of defense
counsel that the redacted portions of the transcript of
the forensic interview revealed that the director did, in
fact, question the victim about inconsistent statements
that the victim made as to whether she had actually
seen the defendant’s penis. The defendant maintained
that, ‘‘because these improprieties bore directly on the
central issue in the case, namely, the defendant’s credi-
bility, they very easily could have tipped the balance
in a case that turned entirely on whom the jury found
to be more credible—the defendant or the victim.’’ Id.
We concluded in Maguire that prosecutorial improprie-
ties occurred and then examined whether the impropri-
eties deprived the defendant of a fair trial. Id., 560–62.
It is of note that, in Maguire, defense counsel objected
to only one of the many improprieties (addressing the
redacted portions of the interview). Id., 561. We con-
cluded that the failure of defense counsel to object was
the only factor that weighed in favor of the state. Id.
In examining the jury charge in that case, we concluded
as follows: ‘‘Although the trial court charged the jury
in its final instructions that the law prohibits the prose-
cutor from offering her personal opinion as to the credi-
bility of any witness, the trial court gave no curative
instructions at the time of the improper remarks, which,
in our view, were relatively severe because they
demeaned the integrity of defense counsel by improp-
erly calling into question his veracity and denigrated
the defense theory of the case by mischaracterizing
it.’’ Id.
While it may be argued that the remarks in both Angel
T. and Maguire may be explained by the overexuber-
ance of counsel in the ‘‘heat of battle,’’ there can be no
such explanation for the statements of the prosecutor
in the present case that are specifically forbidden by
state statute and which the prosecutor is presumed to
have known prior to the trial. Therefore, we conclude
that the egregiousness of the remarks in this case were
equal to, if not greater than, the remarks in both Angel
T. and Maguire. Any curative instruction should have
been immediately given by the trial judge, and the gen-
eral jury instruction, as we discuss hereinafter, was
insufficient to cure the impropriety. The prosecutor,
an officer of the court, twice violated a state statute
prohibiting her from commenting on the defendant’s
failure to testify. Therefore, we hold that the remarks
were egregious and were not cured by the general
jury instructions.
Third, we turn to the frequency of the prosceutor’s
remarks. Although it may be argued that the prosecutor
only mentioned the defendant’s failure to testify on two
occasions, in our opinion, the violation of a specific
state statute forbidding the comments means that two
occasions of such violations is two too many. Indeed,
we could not condone even one violation of such an
extreme nature. Therefore, we conclude that, given the
context of the remarks, they were frequent.
Fourth, we turn to the centrality of the impropriety
to the critical issues in the case. It is not contested that
the prosecutorial impropriety in the present case went
directly to the central issue, namely, credibility. The
central issue for the jury was whether it would believe
the allegations of the victim, particularly when there
was no physical evidence. As this court previously has
recognized, ‘‘[b]ecause there was no independent physi-
cal evidence of the assault and no other witnesses to
corroborate [the victim’s] testimony, her credibility was
crucial to successful prosecution of the case.’’ State v.
Ritrovato, 280 Conn. 36, 57, 905 A.2d 1079 (2006); see
also State v. Iban C., 275 Conn. 624, 641–42, 881 A.2d
1005 (2005) (when there was no physical or medical
evidence of abuse and no eyewitness testimony other
than victim’s testimony, victim’s credibility was central
to state’s case). As we stated in State v. Maguire, supra,
310 Conn. 561–62, ‘‘[i]n addition, each instance of prose-
cutorial impropriety bore directly on the central issue
in the case, namely, the credibility of the defendant
and his theory of defense. As the defendant maintains,
because the state’s case rested entirely on the victim’s
credibility, any improper remarks by the prosecutor
that tended to bolster [the victim’s] credibility, or to
diminish that of the defendant, may very well have had
a substantial impact on the verdict.’’ See also State v.
Alexander, 254 Conn. 290, 308, 755 A.2d 868 (2000)
(‘‘[t]he improper comments directly addressed the criti-
cal issue in this case, the credibility of the victim and
the defendant’’ [internal quotation marks omitted]).
Furthermore, this court has recognized that ‘‘[t]he jury
might have doubted the uncorroborated testimony
offered [to establish] the defendant’s guilt . . . but
[found] him [guilty] because he did not take the stand
to deny his guilt.’’ State v. Dudla, 190 Conn. 1, 7, 458
A.2d 682 (1983); see also State v. Ruocco, 322 Conn.
796, 806, 144 A.3d 354 (2016) (‘‘given the discrepancies
in [uncorroborated testimony by a witness] and the fact
that there was only one eyewitness . . . we cannot
discount the possibility that the jury might have doubted
the [testimony of other witnesses] but found the defen-
dant guilty because of his failure to testify’’). Similarly,
in the present case, the prosecutorial improprieties
focused the jury’s attention on the defendant’s failure
to take the stand to deny his guilt and, therefore,
improperly bolstered the testimony of the victim. The
credibility of the defendant and the victim were particu-
larly central to the present case because there was no
physical evidence, no eyewitness testimony and the
victim’s testimony was inconsistent regarding the inci-
dences of abuse. Therefore, we conclude, as we did in
State v. Maguire, supra, 561–62, that because, in the
present case, the state’s charges rested entirely on the
credibility of the victim, the comments of the prosecu-
tor tended to diminish the credibility of the defendant
and to bolster the victim’s credibility.
Fifth, we examine the strength of the state’s case.
This court repeatedly has recognized that ‘‘a sexual
assault case lacking physical evidence is not particu-
larly strong, especially when the victim is a minor.’’
State v. Ritrovato, supra, 280 Conn. 57; see also State
v. Ceballos, supra, 266 Conn. 416 (‘‘a child sexual abuse
case lacking conclusive physical evidence, when the
prosecution’s case rests on the credibility of the victim,
is not particularly strong’’ [internal quotation marks
omitted]). Furthermore, as this court explained in State
v. Maguire, supra, 310 Conn. 561, ‘‘the state’s case was
not particularly strong. Significantly, there was no phys-
ical evidence of abuse, and there was no eyewitness
testimony other than that of the victim, whose testi-
mony at times was both equivocal and vague.’’ In fact,
this court has previously determined that when there
is no physical evidence to support the allegations of
sexual assault, the significance of the prosecutorial
impropriety increased considerably. ‘‘[A]lthough there
exists evidence in the present case supporting the
defendant’s conviction despite the lack of direct physi-
cal evidence linking the defendant to the sexual assault
of the victim—namely, the victim’s testimony and the
testimony of her mother and cousin—without indepen-
dent physical evidence to prove that the defendant sexu-
ally assaulted [the victim], or even that [the victim] had
been sexually assaulted at all, the significance of the
[prosecutor’s] improper conduct increases consider-
ably.’’ State v. Angel T., supra, 292 Conn. 293. Similar
to the circumstances in Angel T., in the present case,
there was no physical evidence linking the defendant
to the sexual assault. There were also inconsistent state-
ments made by the victim, and, in fact, the victim
refused to answer certain questions during her direct
testimony. The only other evidence on point concerned
the defendant’s statements to the police wherein he
denied that any of the incidents occurred or if some-
thing did happen, it was an accidental brushing. Consid-
ering the totality of the circumstances and the evidence
adduced at trial, we conclude that the state’s case was
not particularly strong.
The last Williams factor involves the strength of the
curative measures taken by the court. The state argues
that the court’s charge to the jury that it could not
consider the defendant’s failure to testify in its delibera-
tions cured any defect in the prosecutor’s argument. We
are not persuaded. As we noted previously, no curative
instruction was given at the time the prosecutor uttered
the remarks. In State v. Maguire, supra, 310 Conn. 561,
we held that the general instructions to the jury were
not enough when ‘‘[a]lthough the trial court charged
the jury in its final instructions that the law prohibits
the prosecutor from offering her personal opinion as
to the credibility of any witness, the trial court gave
no curative instructions at the time of the improper
remarks, which, in our view, were relatively severe
. . . .’’ Similarly, in the present case, the prosecutor’s
remarks not only were severe but also constituted both
a statutory and constitutional violation, therefore, the
judge’s charge, which did not reference the specific
remarks but was general in nature, was ineffectual and
did not cure the impropriety of the prosecutor’s
remarks. The remarks were so egregious that, in the
absence of a strong curative instruction at the time
when the remarks were made, no general charge would
have sufficed. Therefore, we conclude that the curative
remarks made in the jury charge in the form of a general
statement based on the accused’s failure to testify, was
insufficient in this case.
In our analysis regarding whether the state has
proven that the remarks were harmless beyond a rea-
sonable doubt, we acknowledge that the jury found the
defendant guilty of eight of the nine counts with which
he was charged. Our case law does suggest that in the
absence of evidence that the jury disregarded any of
the court’s instructions, we presume that the jury fol-
lowed the instructions. State v. Ancona, 256 Conn. 214,
219, 772 A.2d 571 (2001). It may be argued that the fact
that the jury acquitted the defendant on one of the
charges supports a conclusion that the jury was able
to analyze all of the charges and weigh the evidence
against the defendant, rather than totally condemn him
for his failure to testify. We note, however, that a similar
argument was rejected in State v. Maguire, supra, 310
Conn. 562–63 n.13, wherein the defendant was found
not guilty on two counts. Although in our analysis we
do credit the state for this conclusion, on closer exami-
nation it is not as persuasive as it initially may appear.
The defendant was charged with a total of nine counts,
eight of which related to various types of sexual assault
and risk of injury charges for his alleged conduct relat-
ing to the victim. The ninth charge did not. The ninth
charge alleged, in relevant part, that the defendant ‘‘wil-
fully and unlawfully caused and permitted a child under
the age of sixteen to be placed in a situation that the
morals of said child were likely to be impaired, to wit:
witnessing [the defendant] being violent towards the
child’s mother . . . .’’ As the prosecutor stated in his
closing argument: ‘‘Now, count nine is the one count
that’s a little bit different. That is a risk of injury under
a—it’s the same statute number, which is § 53-21 (a)
(1), but it has to do with the child witnessing domestic
violence and—not domestic violence, but violent
actions by the defendant in the home.’’ The prosecu-
torial impropriety in the present case improperly
impugned the defendant’s credibility for not testifying
and bolstered the victim’s credibility as it related to the
central issue in the case—whether the sexual assaults
had taken place. Indeed, there were no statements made
by the defendant to the police regarding the ninth count.
Therefore, the prosecutor’s improper comments would
not have affected the jury’s deliberation on that count.
Accordingly, the fact that the defendant was acquitted
on an unrelated charge is not relevant to the consider-
ation of whether the constitutional and statutory viola-
tion harmed the defendant on the charges in which
the jury was required to pit his testimony, through his
statements to the police, against the testimony of the
victim.
Therefore, we conclude that all of the Williams fac-
tors weigh in favor of the defendant. Similar to the
situation in State v. Maguire, supra, 310 Conn. 561, the
only factor in the Williams analysis favorable to the
state is defense counsel’s failure to object to the state-
ments. This failure, however, is overcome by the egre-
giousness of the statements. Furthermore, we have
credited the state with the fact that the jury found the
defendant guilty of eight out of the nine charges. How-
ever, due to the difference between the first eight
charges on which the defendant was found guilty, and
the ninth charge on which he was acquitted, we do not
find this fact to be either strongly in favor of the state
or dispositive of the case and we arrive at a similar
conclusion as the court did in Maguire, when the defen-
dant was found not guilty on two charges. Id., 562–63
n.13. Therefore, we are convinced that the state has
failed to meet its burden of proof that the statements
made by the prosecutor were harmless beyond a reason-
able doubt.
The judgment of the Appellate Court is affirmed.
In this opinion ROGERS, C. J., and PALMER, McDON-
ALD and ROBINSON, Js., concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual assault 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 (Supp. 2016) § 54-86e.
** December 23, 2016, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
More specifically, the defendant was found guilty of one count of attempt
to commit sexual assault in the first degree in violation of General Statutes
§§ 53a-49 (a) (2) and 53a-70 (a) (2), three counts of risk of injury to a child
in violation of General Statutes (Rev. to 2009) § 53-21 (a) (2), two counts
of risk of injury to a child in violation of General Statutes (Rev. to 2009)
§ 53-21 (a) (1), and one count each of sexual assault in the first degree in
violation of General Statutes § 53a-70 (a) (2), and sexual assault in the fourth
degree in violation of General Statutes § 53a-73a.
2
Although the defendant did not preserve his prosecutorial impropriety
claim by objecting at trial, such claims are nevertheless reviewable on
appeal. See State v. Payne, 303 Conn. 538, 560, 34 A.3d 370 (2012).
3
We acknowledge that in State v. Ruffin, 316 Conn. 20, 27–29, 110 A.3d
1225 (2015), a case decided after Payne, we used the general due process
standard when considering a prosecutorial misconduct claim that implicated
the fifth amendment right to remain silent. In light of our earlier decision
in Payne, however, we now clarify that under Payne, our analytical approach
in Ruffin was not correct. We note, however, that this oversight did not
impact the outcome of that appeal because we found that the prosecutor’s
statements were not improper, and thus it did not matter which party had
the burden to prove harm. Id., 32.
4
The fifth amendment to the federal constitution, although addressed to
the federal government, also applies to the states under the due process
clause of the fourteenth amendment. State v. Ruffin, 316 Conn. 20, 29 n.4,
110 A.3d 1225 (2015).
5
Section 54-84 (a) also prohibits a prosecutor from commenting on the
‘‘neglect or refusal of an accused party to testify . . . .’’ In the past, however,
we have treated the protections of the statute as being synonymous with
those of the fifth amendment. See, e.g., State v. Parrott, supra, 262 Conn.
293; State v. Haase, 243 Conn. 324, 332–33, 702 A.2d 1187 (1997), cert. denied,
523 U.S. 1111, 118 S. Ct. 1685, 140 L. Ed. 2d 822 (1998). To the extent that
the defendant argues that the prosecutor’s conduct violated § 54-84, the
defendant has not argued that the statute provides greater protection than
the fifth amendment, and, therefore, we do not separately analyze the defen-
dant’s claims of impropriety under the statute, except insofar as we deter-
mine in our analysis that the prosecutor’s comments, in view of § 54-84,
were particularly egregious.
6
We note that the United States Supreme Court has held that a direct
comment by a prosecutor on the defendant’s silence will not violate the fifth
amendment when a ‘‘prosecutor’s reference to the defendant’s opportunity to
testify is a fair response to a claim made by [a] defendant or his counsel
. . . .’’ United States v. Robinson, 485 U.S. 25, 32, 108 S. Ct. 864, 99 L. Ed.
2d 23 (1988). There is no claim in the present case that the defendant invited
the challenged statements.
7
‘‘In determining whether prosecutorial misconduct was so serious as to
amount to a denial of due process, this court, in conformity with courts in
other jurisdictions, has focused on several factors. Among them are the
extent to which the misconduct was invited by defense conduct or argument
. . . the severity of the misconduct . . . the frequency of the misconduct
. . . the centrality of the misconduct to the critical issues in the case . . .
the strength of the curative measures adopted . . . and the strength of the
state’s case.’’ (Citations omitted.) State v. Williams, supra, 204 Conn. 540.
8
The trial court instructed the jury as follows: ‘‘I now want to discuss
the subject of credibility, by which I mean the believability of testimony.
You have observed the witnesses. The credibility or the believability of the
witnesses and the weight to be given to their testimony are matters entirely
within your hands. It is for you alone to determine their credibility. Whether
or not you find a fact proven is not to be determined by the number of
witnesses testifying for or against it. It is the quality and not the quantity
of testimony which should be controlling. As I previously indicated, a single
witness’ testimony may be sufficient to justify a conviction, provided, of
course, that such testimony satisfies you beyond a reasonable doubt that
the state has sustained its burden of proving each and every element of the
given charge or charges beyond a reasonable doubt.’’
9
We note in this case that, since the improprieties occurred during rebuttal
argument, defense counsel would not have had the opportunity to rebut
the arguments. Further, after closing argument, although defense counsel
objected to certain portions of the prosecutor’s argument, he did not object
to the statements regarding the failure of the defendant to testify.