State v. Courtney G.

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE OF CONNECTICUT v. COURTNEY G.*
(SC 20290)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Ecker and Keller, Js.
Syllabus
Convicted of multiple counts of first degree sexual assault and risk of injury
to a child in connection with the sexual abuse of S, the daughter of the
defendant’s girlfriend, N, the defendant appealed. S first disclosed the
abuse, which began when she was eight years old, at a meeting with
several members of her family, including N, that occurred when S was
seventeen. At trial, S testified that she was crying during the meeting.
Thereafter, the trial court, over defense counsel’s objection, allowed N
to testify about S’s demeanor during the meeting, and N also testified
that S had been crying. The defendant testified at trial and denied
any inappropriate contact with S. In response to a question from the
prosecutor, the defendant stated that he had an interest in the case
insofar as he did not want to go to jail and leave his children behind.
During closing and rebuttal arguments, the prosecutor stated that the
defendant, having been present in the courtroom and having listened
to S and N testify, displayed a ‘‘lack of outrage’’ at the accusations
against him. The prosecutor also purported to summarize the reasonable
doubt standard, telling the jury that proof beyond a reasonable doubt
is based on common sense and life experience and determined by a
totality of the evidence rather than ‘‘just . . . one picky little point.’’
The prosecutor also remarked on defense counsel’s failure to cross-
examine S, calling S’s testimony ‘‘unchallenged and uncontroverted.’’
On appeal, the defendant claimed that the trial court improperly admitted
N’s testimony about S’s out-of-court demeanor and that the prosecutor
made certain improper remarks during closing and rebuttal argu-
ments. Held:
1. There was no merit to the defendant’s claim that the admission of N’s
testimony regarding S’s out-of-court demeanor was improper because
any error relating to the admission of that testimony was harmless: N’s
testimony that S was crying during the family meeting was unlikely to
have substantially swayed the jury’s verdict because it was cumulative
of other properly admitted evidence, namely, S’s own uncontested testi-
mony, of peripheral importance to the state’s case, and did not relate
to the elements of the crimes charged; moreover, defense counsel did
not object to S’s testimony that she cried during the family meeting,
and counsel had the unfettered opportunity to cross-examine N on
that point.
2. The defendant could not prevail on his claim that the prosecutor engaged
in certain improprieties during closing and rebuttal arguments:
a. The prosecutor did not violate the defendant’s right to confrontation
by commenting on his ‘‘lack of outrage’’ because that remark was a
permissible comment on the defendant’s testimonial demeanor: although
it was unclear whether the prosecutor was referring to the defendant’s
demeanor while testifying, which is a permissible subject of commentary
insofar as it constitutes evidence on which the jury may properly rely
in assessing the defendant’s credibility, or his courtroom demeanor unre-
lated to his demeanor while testifying, which is an improper subject of
commentary, this court concluded that, when the prosecutor’s remark
was viewed in context, the jury reasonably would have construed it as
a reference to the defendant’s testimonial demeanor, as the prosecutor
immediately followed her remark with a description of the defendant’s
testimony on the witness stand; moreover, defense counsel did not object
to the remark and, during his own closing argument, apparently con-
strued it as a reference to the defendant’s demeanor on the witness stand.
b. Certain remarks made by the prosecutor were not improper: the
prosecutor’s remarks regarding the defendant’s ‘‘lack of outrage’’ did
not improperly appeal to the jurors’ emotions and passions but, instead,
asked the jurors to assess the defendant’s credibility in light of his
testimonial demeanor and implicitly urged them 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; moreover, the prosecutor did not improperly dilute the
presumption of innocence or infringe on the defendant’s right to testify
by referring to the defendant’s interest in the case or improperly express
her personal opinion on the defendant’s credibility by questioning incon-
sistencies in the defendant’s testimony that he never was alone with S,
as those comments were based on the defendant’s properly admitted
testimony and the inferences that reasonably could be drawn therefrom
rather than on the prosecutor’s personal opinion; furthermore, it was
clear from the context that the prosecutor was referring to defense
counsel’s closing argument, and not to the defendant’s testimony, when
she stated that the jury could not consider the statement that the defen-
dant is an innocent man wrongly accused, and, because that statement
was consistent with both the law and the trial court’s instructions, it did
not improperly mislead the jury; in addition, the prosecutor’s comments
regarding S’s lack of motive to lie and testimonial demeanor were not
expressions of her personal opinion but called on the jurors to draw
inferences based on their common sense and life experience, and, accord-
ingly, the prosecutor did not improperly vouch for S’s credibility.
c. Two of the prosecutor’s remarks were improper: the prosecutor’s
description of the reasonable doubt standard was an improper statement
of the law, as a reasonable doubt may be based on a single point, so
long as that point has a foundation in the evidence and produces a real
and honest doubt in the jurors’ minds, or on an evidentiary consideration
outside of the jurors’ own common sense or life experience, and, in light
of the fundamental role the reasonable doubt standard plays in the
criminal justice system, counsel should utilize a previously approved
definition or the one set forth in the trial court’s jury instructions instead
of paraphrasing the standard; moreover, the prosecutor improperly mis-
characterized the evidence and risked diluting the state’s burden of
proof by informing the jury that S’s testimony was ‘‘unchallenged and
uncontroverted,’’ because, although defense counsel did not cross-exam-
ine S, the defendant, during his testimony, expressly denied touching S
inappropriately, and, contrary to the prosecutor’s suggestion, defense
counsel was not required to cross-examine S in order to undermine her
credibility or to prove the defendant’s innocence.
d. Applying the factors set forth in State v. Williams (204 Conn. 523),
this court could not conclude that the prosecutor’s improper statements
deprived the defendant of his right to a fair trial: neither of the improprie-
ties were invited by the defense, they were isolated and infrequent,
and the state’s case was not so weak as to be overshadowed by them;
moreover, defense counsel did not object to the prosecutor’s misstate-
ment of the reasonable doubt standard, that impropriety was not blatantly
egregious or inexcusable, and was counterbalanced by defense counsel’s
frequent description of the high burden imposed on the state, and the trial
court’s instruction to the jury, which accurately described the reasonable
doubt standard and directed the jurors to disregard counsel’s recitation
of the law to the extent that it differed from the court’s own instructions,
served to cure the impropriety; furthermore, although the prosecutor’s
improper reference to S’s unchallenged and uncontroverted testimony
was central to one of the critical issues in the case, namely, S’s credibility
in light of the lack of physical evidence or eyewitnesses, the trial court
promptly issued the curative instruction requested by defense counsel,
that instruction specifically targeted the impropriety, and, when that
impropriety was viewed in the context of the whole trial, its impact was
minimal, especially in light of the jury’s finding of not guilty on certain
other charges.
Argued October 22, 2020—officially released June 21, 2021**
Procedural History
Substitute information charging the defendant with
three counts each of the crimes of sexual assault in the
first degree and risk of injury to a child, brought to the
Superior Court in the judicial district of New Haven
and tried to the jury before B. Fischer, J.; verdict and
judgment of guilty of two counts each of sexual assault
in the first degree and risk of injury to a child, from
which the defendant appealed to this court. Affirmed.
Alice Osedach, senior assistant public defender, for
the appellant (defendant).
Jennifer F. Miller, assistant state’s attorney, with
whom, on the brief, were Patrick J. Griffin, state’s
attorney, and Maxine Wilensky, senior assistant state’s
attorney, for the appellee (state).
Opinion
ECKER, J. Following a jury trial, the defendant, Cour-
tney G., was convicted of two counts of sexual assault
in the first degree in violation of General Statutes § 53a-
70 (a) (1) and two counts of risk of injury to a child in
violation of General Statutes § 53-21 (a) (2). On appeal,
the defendant claims that (1) the trial court improperly
admitted evidence of the victim’s out-of-court demeanor,
and (2) the prosecutor made improper remarks during
closing argument and rebuttal in violation of his sixth
amendment right to confrontation and his fourteenth
amendment right to a fair trial. We affirm the judgment
of conviction.
The jury reasonably could have found the following
facts. The victim, S, was born in October, 1997. When
S was four years old, her mother, N, began dating the
defendant. By 2005, the defendant, N, and S lived
together in an apartment on Poplar Street in New
Haven. One day, when S was eight years old, she was
home alone with the defendant while her mother was
at work. S took a shower and then went into her bed-
room to get dressed. S was wearing a tank top and
underwear when the defendant approached her and
asked her to come into the living room so he could
apply lotion to her body. The defendant took S’s hand
and brought her into the living room, where he removed
her tank top and applied lotion to her back, arms, and
chest. The defendant then pushed S down onto the
couch, removed her underwear, pushed her legs open,
and licked her vagina. S was scared, and she tried to
move the defendant’s head away but was unable to do
so. When the defendant was done, he told S not to say
anything because her mother ‘‘would kill him.’’ The
defendant sexually assaulted S in this manner more
than once when they lived on Poplar Street.
When S was in seventh or eighth grade, she and her
family, which included N, the defendant, and her two
younger siblings, moved to an apartment on Read Street
in New Haven. When S lived on Read Street, the defen-
dant would enter S’s bedroom and ask to see her naked.
On more than one occasion, the defendant picked S
up, brought her to his bedroom, put her on the bed,
and held her down while he licked her vagina.
In March, 2015, when S was seventeen years old, she
and her family lived in an apartment on Winchester
Avenue in New Haven. S’s bedroom was in the dining
room, and a black curtain was hung in the doorway to
separate the dining room from the kitchen. On March
8, 2015, S and her cousin, T, who was one year older
than S, were getting ready to go out. T showered and
then went into the dining room to dress while S show-
ered. T was naked, except for her bra, and she sat on
S’s bed to put on her underwear. At this point, the
defendant, who was in the kitchen, asked T if he could
ask her a question. T responded in the affirmative, and
the defendant told T she had to ‘‘promise that [she]
wouldn’t tell anybody about what he’s about to ask.’’
The defendant then asked T if she ‘‘shaved.’’ T
responded ‘‘no . . . .’’ The defendant asked T if he ‘‘can
. . . see.’’ T replied ‘‘[n]o. That’s not appropriate.’’
After T was dressed, she went into the kitchen and
noticed that she ‘‘could see straight through’’ the black
curtain into the dining room. In light of T’s state of
undress and the ability to ‘‘see pretty much everything’’
in the dining room from the kitchen, T realized that the
defendant had been referring to her vagina when he
asked her if she shaved. Upset, T went into the bath-
room to report the defendant’s question to S. When S
heard what the defendant had asked T, S began to cry.
That night, T made a series of phone calls to her
mother, her aunt, and N. After receiving T’s phone call,
N was shocked and angry. N called the defendant at
work and informed him that their relationship was over
and that he should ‘‘come get [his] stuff.’’ The defendant
asked N, ‘‘why, [is it] because [he] asked [T] if she was
a shaver?’’ Shortly after speaking to N, the defendant
texted S and asked her if he was ‘‘a dead man walking.’’
The next day, there was a family meeting at which
S, N, T, S’s grandmother, and S’s aunts were present.
At the meeting, S disclosed that the defendant also had
asked her if she shaved her vagina. S also revealed
that the defendant had touched her breasts. S was ‘‘too
scared’’ to disclose any further details of the defendant’s
sexual abuse because this was her ‘‘first time talking
about it’’ and ‘‘everybody was staring at [her] . . . .’’
S and the others were crying during the meeting. A few
days later, S and her mother reported the sexual abuse
to the police.
The defendant was arrested and charged with three
counts of sexual assault in the first degree in violation
of § 53a-70 (a) (1) and three counts of risk of injury to
a child in violation of § 53-21 (a) (1). Following a jury
trial, at which the defendant testified, the jury found
the defendant not guilty of one count of sexual assault
in the first degree and one count of risk of injury to a
child but found the defendant guilty of the remaining
charges.1 The trial court sentenced the defendant to a
total effective sentence of twenty years of imprisonment,
execution suspended after fifteen years, followed by
fifteen years of probation. This appeal followed.2
I
The defendant first claims that the trial court improp-
erly admitted N’s testimony that S was crying during
the March, 2015 family meeting because evidence of
S’s demeanor at the meeting was irrelevant and, even if
relevant, more prejudicial than probative. The following
additional facts and procedural history are relevant to
our resolution of the defendant’s claim.
Prior to trial, the defendant filed a motion in limine
to preclude the state ‘‘from offering any ‘demeanor evi-
dence’ unless the defendant opens the door by challeng-
ing [S’s] testimony or credibility regarding any out-of-
court statements or delayed reporting.’’ (Footnote omit-
ted.) Specifically, the defendant sought to exclude ‘‘tes-
timony from witnesses concerning their observations
of [S’s] emotional state at the time of the disclosure, for
example, whether [S] was crying, shaking, trembling,
scared, or other similar information.’’ The defendant
filed a memorandum of law in support of his motion,
in which he argued that, pursuant to State v. Burney,
288 Conn. 548, 954 A.2d 793 (2008), and State v. Daniel
W. E., 322 Conn. 593, 142 A.3d 265 (2016), evidence
of a complainant’s demeanor at the time of a delayed
disclosure of sexual assault is inadmissible ‘‘unless the
defendant opens the door by challenging the complain-
ant’s testimony or credibility regarding any out-of-court
statements or delayed reporting. The demeanor testi-
mony has minimal, if any, probative value unless the
defendant challenges the complainant’s credibility
regarding any out-of-court statements or delayed
reporting.’’ The defendant further argued that evidence
of S’s demeanor at the time of her disclosure would be
unduly prejudicial because it ‘‘is likely to enflame the
emotions, passions and sympathy of the jury.’’
At trial, S testified during the state’s case-in-chief that
she first reported the defendant’s sexual abuse at the
family meeting in March, 2015, when she told her
mother, grandmother, aunts, and cousin that the defen-
dant had touched her breasts. S further testified that,
at the time of her disclosure, she, along with everyone
else present at the meeting, was crying. Defense counsel
did not object to or move to strike S’s testimony regard-
ing her demeanor at the time of her disclosure. Addition-
ally, defense counsel did not cross-examine S and,
therefore, did not challenge her credibility on the basis
of her delayed disclosure of the abuse.
On the second day of the defendant’s trial, the state
presented the testimony of S’s mother, N. In light of the
defendant’s pending motion in limine, the state made
an offer of proof outside the presence of the jury regard-
ing N’s testimony of S’s demeanor at the family meeting.
During the offer of proof, N testified that she, S, and
everybody else at the family meeting had been crying.
Following the offer of proof, defense counsel objected
to the admission of N’s demeanor testimony, pointing
out that he had not challenged S’s credibility, and, ‘‘[a]s
a result, this highly prejudicial, highly inflammatory
testimony simply is not probative of anything at this
point’’ pursuant to Burney and Daniel W. E. The state
disagreed, arguing that nothing in Burney or Daniel W.
E. precludes a witness from testifying about his or her
observations. The trial court agreed with the state that
N was not a constancy of accusation witness but, rather,
a lay witness who was ‘‘entitled to testify to what she
observed if it’s . . . relevant evidence.’’ The trial court
found that N’s proffered testimony was ‘‘relevant evi-
dence for th[e] jury to consider’’ and that the probative
value of N’s testimony outweighed its prejudicial effect.
Therefore, the trial court overruled defense counsel’s
objection and permitted N to testify as to her observa-
tion of S’s demeanor, but cautioned that it would not
permit N to testify as to her ‘‘observations of other
people in the room . . . .’’ Thereafter, the prosecutor
asked N in front of the jury: ‘‘What did you notice about
[S’s] emotional state during the [family meeting]?’’ N
responded that ‘‘[s]he was crying.’’
At the defendant’s sentencing, defense counsel
moved for a new trial, arguing, among other things, that
‘‘the court’s evidentiary ruling concerning the admission
of evidence for [S’s] demeanor . . . was an error and
warrant[s] a new trial.’’ The trial court denied the
motion. On appeal, the defendant renews his claim that
the trial court improperly admitted N’s testimony
regarding S’s demeanor at the family meeting, alleging
that it was irrelevant and unduly prejudicial.
‘‘We review the trial court’s decision to admit evi-
dence, if premised on a correct view of the law . . .
for an abuse of discretion.’’ State v. Saucier, 283 Conn.
207, 218, 926 A.2d 633 (2007). ‘‘The trial court is given
broad discretion in determining the relevancy of evi-
dence and . . . in balancing the probative value of
proffered evidence against its prejudicial effect.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Willis, 221 Conn. 518, 522, 605 A.2d 1359 (1992).
‘‘[I]n determining whether there has been an abuse of
discretion, every reasonable presumption should be
made in favor of the correctness of the trial court’s
ruling, and we will upset that ruling only for a manifest
abuse of discretion.’’ (Internal quotation marks omit-
ted.) State v. Ayala, 333 Conn. 225, 243–44, 215 A.3d
116 (2019).
We need not address whether the trial court abused
its discretion in admitting N’s testimony regarding S’s
demeanor because, even if we assume, without decid-
ing, that an evidentiary error occurred, the defendant
has failed to fulfill his burden of establishing harm.
‘‘When an improper evidentiary ruling is not constitu-
tional in nature, the defendant bears the burden of dem-
onstrating that the error was harmful. . . . [W]hether
[an improper ruling] is harmless in a particular case
depends [on] a number of factors, such as the impor-
tance of the . . . testimony in the prosecution’s case,
whether the testimony was cumulative, the presence
or absence of evidence corroborating or contradicting
the testimony of the witness on material points, the
extent of cross-examination otherwise permitted, and,
of course, the overall strength of the prosecution’s case.
. . . Most importantly, we must examine the impact of
the . . . evidence on the trier of fact and the result of
the trial. . . . [T]he proper standard for determining
whether an erroneous evidentiary ruling is harmless
should be whether the jury’s verdict was substantially
swayed by the error. . . . Accordingly, a nonconstitu-
tional error is harmless when an appellate court has a
fair assurance that the error did not substantially affect
the verdict.’’ (Internal quotation marks omitted.) Id.,
231–32.
N’s testimony regarding S’s demeanor at the family
meeting was duplicative of S’s testimony, which was
admitted into evidence without objection or contradic-
tion. Because N’s demeanor testimony was cumulative
of other properly admitted evidence, it was unlikely to
have substantially swayed the jury’s verdict. See, e.g.,
State v. Bouknight, 323 Conn. 620, 628, 149 A.3d 975(2016) (improper admission of evidence was harmless
because it was ‘‘cumulative of other properly admitted
evidence’’ and ‘‘there was no evidence offered to contra-
dict it’’ (internal quotation marks omitted)); State v.
Dehaney, 261 Conn. 336, 364, 803 A.2d 267 (2002) (‘‘[i]t
is well recognized that any error in the admission of
evidence does not require reversal of the resulting judg-
ment if the improperly admitted evidence is merely
cumulative of other validly admitted testimony’’ (inter-
nal quotation marks omitted)), cert. denied, 537 U.S.
1217, 123 S. Ct. 1318, 154 L. Ed. 2d 1070 (2003). Further-
more, although N was an important witness for the
state, the specific statement at issue (i.e., ‘‘[s]he was
crying’’) did not pertain to the elements of the crimes
charged and was of peripheral importance to the state’s
case. Lastly, N’s demeanor testimony was brief and
subject to unfettered cross-examination. On this eviden-
tiary record, we conclude that the allegedly improper
admission of N’s demeanor testimony was harmless.3
II
The defendant next claims that the prosecutor vio-
lated his sixth amendment right to confrontation and
his fourteenth amendment right to a fair trial by making
improper remarks during closing argument and rebut-
tal. Specifically, the defendant contends that the prose-
cutor violated his sixth amendment right to confronta-
tion by commenting on his ‘‘lack of outrage’’ at trial. The
defendant also contends that the prosecutor violated
his fourteenth amendment right to a fair trial by (1)
appealing to the emotions and passions of the jurors,
(2) informing the jury that he had ‘‘a big, big interest
in the outcome of this case,’’ (3) improperly expressing
a personal opinion on the defendant’s credibility, (4)
misleading the jury on the law and the evidence, (5)
vouching for the credibility of the witnesses, (6) misstat-
ing the reasonable doubt standard, and (7) shifting or
diluting the state’s burden of proof.4 For the reasons
that follow, we conclude that two of the prosecutor’s
statements were improper but that the improprieties did
not deprive the defendant of his fourteenth amendment
right to a fair trial.
‘‘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 a constitutionally pro-
tected right. (Internal quotation marks omitted.) State
v. Payne, 303 Conn. 538, 560, 34 A.3d 370 (2012). The
standard governing our review of a prosecutorial impro-
priety claim depends on the nature of the constitutional
right allegedly violated. ‘‘[W]hen 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, not
only that the remarks were improper, but also that,
considered in light of the whole trial, the improprieties
were so egregious that they amounted to a denial of
due process.’’ Id., 562–63. ‘‘On the other hand . . . 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 or the sixth amendment right to confront
one’s accusers, 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.’’ Id., 563. ‘‘Regard-
less of the type of constitutional right at stake, the
burden is always on the defendant to show that the
prosecutor’s impropriety resulted in the violation of a
constitutional right.’’ State v. Jose R., 338 Conn. 375,
386–87, 258 A.3d 50 (2021).
In the present case, the alleged prosecutorial impro-
prieties occurred during closing argument and rebuttal.
It is well established that ‘‘prosecutorial [impropriety]
of a constitutional magnitude can occur in the course
of closing arguments. . . . When making closing argu-
ments to the jury, [however, counsel] must be allowed a
generous latitude in argument, as the limits of legitimate
argument and fair comment cannot be determined pre-
cisely by rule and line, and something must be allowed
for the zeal of counsel in the heat of argument. . . .
Thus, as the state’s advocate, a prosecutor may argue
the state’s case forcefully, [provided the argument is]
fair and based [on] the facts in evidence and the reason-
able 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.
. . . By reason of his office, he usually exercises great
influence [on] jurors. . . . While the privilege of coun-
sel 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 [on], or to suggest
an inference from, facts not in evidence, or to present
matters [that] the jury ha[s] no right to consider.’’ (Inter-
nal quotation marks omitted.) State v. Ciullo, 314 Conn.
28, 37–38, 100 A.3d 779 (2014).
A
We first address whether the prosecutor violated the
defendant’s sixth amendment right to confrontation5 by
commenting on the defendant’s ‘‘lack of outrage’’ at
trial. The defendant contends that it is unclear whether
the prosecutor was referring to his demeanor while
testifying as a witness, while observing the testimony
of other witnesses, or both, but argues that, regardless
of the precise demeanor to which the prosecutor was
referring, her remarks improperly infringed on his con-
stitutional right to be present in the courtroom and to
confront the witnesses against him. The state responds
that the prosecutor’s remarks, when construed in con-
text, were not improper because they referred to the
defendant’s testimonial demeanor, which ‘‘is one of the
key factors for a jury to evaluate in its credibility deter-
minations.’’ We agree with the state.
The following additional facts are relevant to this
claim. The defendant was present in the courtroom
throughout the trial and testified on his own behalf.
The defendant denied sexually assaulting S or touching
her in an inappropriate manner, stating that S’s allega-
tion of sexual abuse ‘‘disgusted me. It made me sick
’cause I never did anything like that.’’ At another point
in his testimony, the defendant explained that, when
he heard about S’s allegation of sexual abuse, he felt
‘‘sickened’’ and ‘‘disgusted’’ because he ‘‘raised her
since she was four and . . . would never do anything
to her.’’
During closing argument, the prosecutor pointed out
that the defendant had ‘‘listened to all of the witnesses
in this case. He listened to [S], he listened to [T], he
listened to [N]. There was a lack of outrage on his part.
Sure, he said, oh, it’s disgusting, and, oh, whatever else
he said, but there was no true, true outrage. Ask your-
selves, wouldn’t you be outraged? There was also an
inability on the defendant’s part to cite a motive for [S]
to make this up. Remember his cross-examination. I
start to question him, and suddenly he’s not as sure as
he was on direct.’’
Defense counsel addressed in his closing argument
the prosecutor’s comments regarding the defendant’s
lack of outrage, stating: ‘‘I want to talk about my client
. . . and his testimony. The [prosecutor] said he wasn’t
outraged enough. If he had been too enraged, she’d say
look at his reaction. Look at this angry, big, strong, 240
pound man. What’s he supposed to do? They don’t like
his reaction. What’s the—actually, what is the appro-
priate reaction?’’ Defense counsel further argued that
the defendant ‘‘denies these allegations. He took [the]
stand. And [the prosecutor] may not like the way he
appeared. Maybe [he] wasn’t outraged enough.’’
It is axiomatic that a criminal defendant who exer-
cises ‘‘his fifth amendment right to testify on his own
behalf . . . opens the door to comment on his verac-
ity.’’ State v. Alexander, 254 Conn. 290, 297, 755 A.2d
868 (2000). ‘‘An accused who testifies subjects himself
to the same rules and tests [that] could by law be applied
to other witnesses.’’ (Internal quotation marks omitted.)
Id., 298. If a defendant chooses to testify, it is the jury’s
duty to assess the defendant’s ‘‘credibility . . . by
observing firsthand [his] conduct, demeanor and atti-
tude.’’ (Internal quotation marks omitted.) State v.
Andrews, 313 Conn. 266, 303, 96 A.3d 1199 (2014).
Because a defendant’s testimonial demeanor is evi-
dence on which the jury may rely in assessing credibil-
ity, a prosecutor permissibly may comment on the
defendant’s testimonial demeanor in closing argument
and rebuttal. See State v. Luster, 279 Conn. 414, 440, 902
A.2d 636 (2006) (prosecutor’s comment that defendant
was ‘‘coy, evasive, and trying to squirm’’ was not
improper because it was merely descriptive of ‘‘the
defendant’s demeanor during cross-examination, which
the jury had observed and could assess independently’’
(internal quotation marks omitted)); see also United
States v. Schuler, 813 F.2d 978, 981 n.3 (9th Cir. 1987)
(‘‘When a defendant chooses to testify, a jury must
necessarily consider the credibility of the defendant.
In this circumstance, courtroom demeanor has been
allowed as one factor to be taken into consideration.’’).
There are limits, however, to this kind of commen-
tary. First, although a prosecutor may invite the jury
to draw reasonable inferences from a defendant’s testi-
monial demeanor, ‘‘he or she may not invite sheer spec-
ulation unconnected to evidence.’’ (Internal quotation
marks omitted.) State v. Stevenson, 269 Conn. 563, 587,
849 A.2d 626 (2004). Second, a defendant’s courtroom
demeanor ‘‘[un]related to a defendant’s demeanor while
testifying’’ is ‘‘not a part of the evidence in the record
and, therefore, [is] not a proper subject of the prosecu-
tor’s closing argument.’’ State v. John B., 102 Conn.
App. 453, 465 and n.5, 925 A.2d 1235, cert. denied, 284
Conn. 906, 931 A.2d 267 (2007);6 see also United States v.
Schuler, supra, 813 F.2d 981 n.3 (distinguishing between
prosecutor’s permissible statements concerning defen-
dant’s testimonial demeanor and impermissible state-
ments concerning defendant’s nontestimonial court-
room demeanor). Accordingly, a prosecutor’s reliance
‘‘in argument on the defendant’s courtroom demeanor
[off the witness stand is] not proper because it consti-
tute[s] argument on matters extrinsic to the evidence.’’
State v. John B., supra, 465; see also United States v.
Mendoza, 522 F.3d 482, 491 (5th Cir.) (agreeing with
‘‘other circuits . . . that courtroom demeanor of a
[nontestifying] criminal defendant is an improper sub-
ject for comment by a prosecuting attorney’’), cert.
denied, 555 U.S. 915, 129 S. Ct. 269, 172 L. Ed. 2d 200(2008); United States v. Pearson, 746 F.2d 787, 796 (11th
Cir. 1984) (holding that ‘‘the defendant’s behavior off
the witness stand’’ was not evidence before jury about
‘‘which the prosecutor was free to comment’’).
To resolve the defendant’s claim on appeal, we must
determine whether the prosecutor’s references to the
defendant’s ‘‘lack of outrage’’ were permissible com-
ments on his testimonial demeanor7 or improper com-
ments on his nontestimonial courtroom demeanor. The
parties agree that the prosecutor’s comments were
ambiguous and that it is unclear whether the prosecutor
was referring to the defendant’s testimonial demeanor,
nontestimonial courtroom demeanor, or both. We have
previously stated that, when assessing the propriety of
a prosecutor’s statements, ‘‘we do not scrutinize each
individual comment in a vacuum but, rather, review the
comments complained of in the context of the entire
trial.’’ (Internal quotation marks omitted.) State v. Felix
R., 319 Conn. 1, 9, 124 A.3d 871 (2015). We also do ‘‘not
lightly infer that a prosecutor intends an ambiguous
remark to have its most damaging meaning or that a
jury, sitting through a lengthy exhortation, will draw
that meaning from the plethora of less damaging inter-
pretations.’’ (Internal quotation marks omitted.) Id.When the prosecutor’s statements regarding the
defendant’s ‘‘lack of outrage’’ are examined in context,
we conclude that the jury reasonably would have con-
strued them as a reference to the defendant’s testimo-
nial demeanor. The prosecutor immediately followed
her observation regarding the defendant’s ‘‘lack of out-
rage’’ with a description of the defendant’s testimony
on the witness stand, pointing out: ‘‘Sure, he said, oh,
it’s disgusting, and, oh, whatever else he said, but there
was no true, true outrage.’’ The plain inference that the
prosecutor was referring to the defendant’s testimonial
demeanor was reinforced by her subsequent exhorta-
tion to the jury to ‘‘[r]emember [the defendant’s] cross-
examination.’’
Defense counsel did not object to the prosecutor’s
challenged remarks, which suggests that he ‘‘did not
believe [them to be improper] in light of the record of
the case at the time.’’ (Internal quotation marks omit-
ted.) State v. Medrano, 308 Conn. 604, 612, 65 A.3d 503(2013). Furthermore, it appears that defense counsel
construed the prosecutor’s statements regarding the
defendant’s ‘‘lack of outrage’’ to refer to the defendant’s
testimonial demeanor on the witness stand. During clos-
ing argument, defense counsel stated: ‘‘I want to talk
about my client . . . and his testimony. The [prosecu-
tor] said he wasn’t outraged enough.’’ (Emphasis added.)
Defense counsel reminded the jury that the defendant
had ‘‘denie[d] these allegations. He took [the] stand.
And [the prosecutor] may not like the way he appeared.
Maybe [he] wasn’t outraged enough.’’ (Emphasis added.)
Under these circumstances, we conclude that the prose-
cutor’s challenged comments were not improper refer-
ences to the defendant’s nontestimonial courtroom
demeanor but, instead, were permissible references to
the defendant’s testimonial demeanor. We therefore
reject the defendant’s sixth amendment claim.
B
We next address whether the prosecutor made
improper remarks during closing argument and rebuttal
in violation of the defendant’s due process right to a
fair trial under the fourteenth amendment to the United
States constitution.8 We begin our analysis with the
defendant’s due process challenge to the prosecutor’s
remarks regarding his ‘‘lack of outrage’’ at trial. In addi-
tion to claiming that the prosecutor’s statements vio-
lated the defendant’s sixth amendment right to confron-
tation; see part II A of this opinion; the defendant claims
that they also improperly appealed to the emotions and
passions of the jurors in violation of the defendant’s
general due process right to a fair trial. We disagree.
Although ‘‘[a] prosecutor may not appeal to the emo-
tions, passions and prejudices of the jurors’’; (internal
quotation marks omitted) State v. Ciullo, supra, 314
Conn. 56; he or she may ‘‘argue about the credibility of
witnesses’’ and ‘‘appeal to [the jurors’] common sense in
closing remarks,’’ so long as the prosecutor’s arguments
‘‘are based on evidence presented at trial and reason-
able inferences that jurors might draw therefrom.’’
(Internal quotation marks omitted.) State v. O’Brien-
Veader, 318 Conn. 514, 547, 122 A.3d 555 (2015). The
defendant’s demeanor ‘‘while . . . testifying [is] not
only visible to the jurors but [is] properly before them
as evidence of [his] credibility.’’ State v. Gilberto L.,
292 Conn. 226, 247, 972 A.2d 205 (2009). The prosecutor
did not disparage the defendant or appeal to the jurors’
emotions by commenting inappropriately on his testi-
monial demeanor but, instead, asked ‘‘the jurors to draw
inferences from the evidence that had been presented
at trial regarding the actions of the defendant . . .
based on the jurors’ judgment of how a reasonable
person would act under the specified circumstances.’’
State v. Bell, 283 Conn. 748, 773, 931 A.2d 198 (2007).
Specifically, the prosecutor asked the jurors to assess
the defendant’s credibility in light of his demeanor on
the witness stand and implicitly urged the jurors to
infer, on the basis of their common sense and experi-
ence, 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.
See State v. Long, 293 Conn. 31, 60, 975 A.2d 660 (2009)
(‘‘[t]he prosecutor’s remark that it would be ‘[q]uite the
feat, perhaps, for somebody of [the victim’s] age’ to
concoct such a detailed and specific accusation, and
then be able to direct a demonstration of it in court, was
not [an] improper’’ appeal to jurors’ emotions because
it ‘‘neither disparaged the defendant nor painted [the
victim] as particularly vulnerable or deserving of sympa-
thy’’); State v. Warholic, 278 Conn. 354, 377–78, 897
A.2d 569 (2006) (prosecutor’s statements urging jurors
to asses victim’s ‘‘credibility by recognizing the emo-
tional difficulty that [he] subjected himself to by making
the allegations of sexual assault’’ was proper ‘‘because
it asked the jurors to assess [the victim’s] credibility on
the basis of their common sense and life experience’’).
The defendant next claims that the prosecutor
improperly diluted the presumption of innocence and
infringed on his right to testify by implying that his
testimony was not credible because he had ‘‘a big, big
interest in the outcome of this case.’’ The following
additional facts are relevant to this claim.
The defendant testified at trial, and the prosecutor
asked the defendant on cross-examination: ‘‘You have
an interest in this case [because] [y]ou don’t want . . .
to go to jail, right?’’ The defendant responded: ‘‘I don’t
want my kids to be without me. . . . Who—who wants
to go to jail? Nobody wants to go to jail.’’ The prosecutor
again asked the defendant, ‘‘[s]o, you have an interest
in this case,’’ to which the defendant replied, ‘‘[i]f you
want to put it like that, yes.’’
During closing argument, the prosecutor stated:
‘‘Let’s talk about the defendant. He has a big, big interest
in the outcome of this case. What you have to ask
yourself, what interest does [S] have?’’ The prosecutor
reiterated during rebuttal that the defendant ‘‘has an
interest in this case. He told you that.’’
As we previously explained, a criminal defendant
‘‘who testifies subjects himself to the same rules and
tests [that] could by law be applied to other witnesses.’’
(Internal quotation marks omitted.) State v. Alexander,
supra, 254 Conn. 298. One such rule is that a prosecutor
permissibly may comment on a witness’ motive to lie,
‘‘as long as the remarks are based on the ascertainable
motives of the witnesses rather than the prosecutor’s
personal opinion.’’ (Internal quotation marks omitted.)
State v. Long, supra, 293 Conn. 45; see also State v.
Warholic, supra, 278 Conn. 372 (‘‘we have allowed pros-
ecutors to argue that the defendant and his witnesses
may have a motive to lie in order to keep either them-
selves, or their friend or loved one, free from punish-
ment’’); State v. Stevenson, supra, 269 Conn. 584–85
(‘‘the [prosecutor’s] remark on rebuttal, suggesting that
the police and the victims had no reason to lie, while
the defendant and his friends and family did,’’ was not
improper because it was based ‘‘on the ascertainable
motives of the witnesses’’). Thus, a prosecutor’s com-
ment regarding a defendant’s motive to lie on the wit-
ness stand is not improper if it is ‘‘based on the evidence
presented to the jury and inferences that reasonably
could be drawn from that evidence.’’ State v. Long,
supra, 46.
In the present case, the defendant admitted that he
had an interest in the outcome of the case because he
did not want to go to jail and did not want his children
to be without him. Given that the defendant’s interest
in the outcome of the case properly was admitted into
evidence for the jury’s consideration, we conclude that
the prosecutor’s statement regarding the defendant’s
interest in the case was not improper.9
The defendant also claims that the prosecutor
improperly expressed her personal opinion on the
defendant’s credibility when she made the following
statements: (1) ‘‘The only thing that the defendant prob-
ably said that was true, and obviously credibility is up
to you, that was true besides his name, his weight, and
his height was it was disgusting.’’ And (2) ‘‘Oh, my
brother was always there. Every day? Oh, yes, every
day. That’s not believable.’’ As we previously explained,
we do not review the propriety of a prosecutor’s state-
ments ‘‘in a vacuum but, rather . . . in the context of
the entire trial.’’ (Internal quotation marks omitted.)
State v. Felix R., supra, 319 Conn. 9.
As the defendant points out in his brief, ‘‘[t]his whole
case depended on credibility, as there was no physical
or corroborating evidence’’ confirming or denying the
sexual abuse of S. It therefore is not surprising that both
the prosecutor and defense counsel focused heavily in
their closing arguments on the relative credibility of
the defendant and S. The prosecutor’s first remark that
the defendant’s only truthful statement ‘‘besides his
name, his weight, and his height was it was disgusting’’
was made at the beginning of her closing argument.
The prosecutor continued: ‘‘In this closing argument, I
will be reminding you of certain things, and I will be
asking you certain things. I will also be citing to the
evidence and the law. I am a representative of the state
of Connecticut. My beliefs—personal beliefs or any-
thing like that as to credibility—do not matter. My job
here is to recite the evidence and how it applies to the
law. You are the judge of credibility. I will be suggesting
certain ways that you can judge that credibility, cer-
tainly, but it’s not any personal belief on behalf of the
state or personally myself.’’
Later in closing argument, the prosecutor pointed
out various, specific inconsistencies in the defendant’s
version of events. The prosecutor mentioned the defen-
dant’s testimony that he rarely was home alone with
S,10 stating: ‘‘He wants you to believe [that it is] true
that he spent no time or very little time with [S]. They
lived together from, what, she was four to seventeen.
[N] worked nights. Sometimes he worked days, some-
times he worked nights, but he was definitely alone
with her. Remember the go around that he and I had
about . . . Poplar Street. Oh, my brother was always
there. Every day? Oh, yes, every day. That’s not believ-
able. He has nothing and no one to corroborate his
story. Not his mom, not his brother, not [N], not [S],
not [T], no one. [S] has [T] and [N].’’
‘‘[A] prosecutor may not express his [or her] own
opinion, directly or indirectly, as to the credibility of
the witnesses’’ because ‘‘[s]uch expressions of personal
opinion are a form of unsworn and unchecked testi-
mony . . . .’’ (Internal quotation marks omitted.) State
v. Stevenson, supra, 269 Conn. 583. It is ‘‘particularly
difficult for the jury to ignore’’ a prosecutor’s expression
of personal opinion because a ‘‘prosecutor’s opinion
carries with it the imprimatur of the [state]’’ and the
inference that it is based on ‘‘matters not in evidence
. . . .’’ (Internal quotation marks omitted.) Id. ‘‘How-
ever, [i]t is not improper for the prosecutor to comment
[on] the evidence presented at trial and to argue the
inferences that the jurors might draw therefrom . . . .
We must give the jury the credit of being able to differen-
tiate between argument on the evidence and attempts
to persuade them to draw inferences in the state’s favor,
on one hand, and improper unsworn testimony, with
the suggestion of secret knowledge, on the other hand.
The [prosecutor] should not be put in the rhetorical
straitjacket of always using the passive voice, or contin-
ually emphasizing that he [or she] is simply saying I
submit to you that this is what the evidence shows, or
the like.’’ (Internal quotation marks omitted.) Id., 583–
84.
We conclude that the prosecutor’s challenged com-
ments were not improper expressions of personal opin-
ion but, rather, permissible comments on the evidence
presented at trial and the reasonable inferences that
may be drawn therefrom. The prosecutor marshaled
the evidence in support of her argument that the defen-
dant’s testimony was not believable, asking the jurors
to consider, on the basis of their own common sense
and experiences, whether it was reasonable to believe
that the defendant never was alone with S because his
brother was ‘‘always there . . . every day.’’ The prose-
cutor pointed out that the defendant’s version of events
was not corroborated by the witnesses or the evidence
adduced at trial, but portions of S’s testimony were
corroborated by T and N. Additionally, the prosecutor
repeatedly reminded the jury that it was ‘‘the judge of
credibility’’ and that her suggestions as to ‘‘certain ways
that you can judge that credibility’’ were not to be con-
strued as the expression of ‘‘any personal belief on
behalf of the state or [herself] personally . . . .’’ Given
the context in which the challenged statements were
made, we conclude that they were not improper. See
State v. Gibson, 302 Conn. 653, 661, 31 A.3d 346 (2011)
(prosecutor’s statement, ‘‘ ‘[d]id the defendant wilfully
[fail] to appear in court . . . I think he did,’ ’’ was not
improper expression of personal opinion because pros-
ecutor ‘‘was attempting to persuade the jury to draw
this inference from the circumstantial evidence of intent
that he had just recited’’); State v. Stevenson, supra, 269
Conn. 584 (prosecutor’s description of ‘‘the defendant’s
explanation as to how he obtained money to buy drugs
as ‘totally unbelievable’ ’’ was not improper expression
of personal opinion but, ‘‘[r]ather . . . a comment on
the evidence presented at trial, and it posited a reason-
able inference that the jury itself could have drawn
without access to the [prosecutor’s] personal knowl-
edge of the case’’).
The defendant next claims that the prosecutor
improperly misled the jury on the law and the evidence
when she stated during rebuttal: ‘‘He also said that he
is an innocent man wrongly accused. You’re not to
consider that either because that’s not evidence, and
it’s improper. It’s not the standard by which you judge
the facts of this case.’’ (Emphasis added.) It is clear
from the context in which the prosecutor’s statement
was made that the first ‘‘he’’ to whom she referred was
not the defendant but, rather, defense counsel. During
his closing argument, defense counsel stated that the
defendant was ‘‘an innocent man wrongfully accused
[of] a crime he did not commit . . . .’’ The prosecutor
responded to this statement during rebuttal, stating:
‘‘[Defense counsel] talked about his family, he and his
family. It’s not evidence. Who cares? And I don’t mean
to be flip about it, but, really, that’s . . . not an issue
here. He is asking you to go outside the evidence and
find reasonable doubt outside of what this courtroom
holds. You cannot do that. He also said that he is an
innocent man wrongly accused. You’re not to consider
that either because that’s not evidence, and it’s
improper.’’ Thus, the prosecutor was informing the jury
that defense counsel’s statement that the defendant is
‘‘an innocent man wrongly accused’’ was not evidence
on which the jury could rely to reach a verdict. The
prosecutor’s statement was consistent with the law and
the trial court’s instruction that ‘‘[a]rguments by counsel
are not evidence. The law prohibits either the state’s
attorney or defense counsel from giving personal opin-
ions as to whether the defendant is guilty or not guilty.
It is not their assessment of the evidence that matters;
it is only yours.’’ See, e.g., State v. Roman, 224 Conn.
63, 68, 616 A.2d 266 (1992) (‘‘statements of counsel are
not evidence’’), cert. denied, 507 U.S. 1039, 113 S. Ct.
1868, 123 L. Ed. 2d 488 (1993). We therefore reject the
defendant’s claim.
The defendant also claims that the prosecutor
improperly vouched for S’s credibility by commenting
on her lack of motive to lie and her demeanor on the
witness stand.11 We disagree. Although a prosecutor
may not express a personal opinion as to a witness’
credibility, he or she ‘‘may argue that a witness has no
motive to lie . . . and may ask the jurors to draw infer-
ences that are based on their common sense and life
experience.’’ (Citation omitted; internal quotation
marks omitted.) State v. Elmer G., 333 Conn. 176, 205,
214 A.3d 852 (2019). Furthermore, as we have discussed,
a witness’ demeanor while testifying is ‘‘visible to the
jurors’’ and ‘‘properly before them as evidence of . . .
credibility.’’ State v. Gilberto L., supra, 292 Conn. 247;
see id., 247–48 (holding that prosecutor properly com-
mented on victim’s testimonial demeanor and lack of
motive to lie); see also State v. Elmer G., supra, 205–206
(same). It was not improper for the prosecutor to com-
ment on S’s testimonial demeanor and to appeal to the
jurors’ common sense regarding her credibility.12
Unlike those previously addressed, the defendant’s
final two claims of prosecutorial impropriety have
merit. The first involves the defendant’s claim that the
prosecutor misstated the law governing the state’s bur-
den of proving the defendant guilty beyond a reasonable
doubt when she stated: ‘‘You look at the evidence, and
you decide if the state has proven it beyond a reasonable
doubt. Proof beyond a reasonable doubt is based on a
cumulative totality of the evidence. It’s just not one
picky little point. It is a doubt based upon common
sense, life experience, and it’s on credibility.’’ We agree
with the defendant that the prosecutor’s description of
the reasonable doubt standard was improper.
The reasonable doubt standard plays a fundamental
role in our criminal justice system. ‘‘The [reasonable
doubt concept] provides concrete substance for the
presumption of innocence—that bedrock axiomatic
and elementary principle [the] enforcement [of which]
lies at the foundation of the administration of our crimi-
nal law. . . . At the same time, by impressing [on] the
factfinder the need to reach a subjective state of near
certitude of the guilt of the accused, the [reasonable
doubt] standard symbolizes the significance that our
society attaches to the criminal sanction and thus to
liberty itself.’’ (Citation omitted; internal quotation
marks omitted.) State v. Griffin, 253 Conn. 195, 205,
749 A.2d 1192 (2000). Therefore, it is imperative that
statements describing the reasonable doubt standard
be accurate, ‘‘clear and unequivocal . . . .’’ (Internal
quotation marks omitted.) Id.It is axiomatic that ‘‘prosecutors are not permitted
to misstate the law’’ or to ‘‘distort the government’s
burden of proof . . . because such statements are
likely to improperly mislead the jury.’’ (Citation omit-
ted.) State v. Otto, 305 Conn. 51, 77, 43 A.3d 629 (2012).
This court consistently has defined reasonable doubt
as ‘‘a real doubt, an honest doubt, a doubt [that] has
its foundation in the evidence or lack of evidence, as a
doubt for which a valid reason can be assigned, and as a
doubt [that] in the serious affairs [that] concern you in
[everyday] life you would pay heed and attention to
. . . .’’ (Internal quotation marks omitted.) State v. Fer-
guson, 260 Conn. 339, 371, 796 A.2d 1118 (2002); see
also Connecticut Criminal Jury Instructions 2.2-3, avail-
able at https://www.jud.ct.gov/JI/criminal/Criminal.pdf
(last visited June 18, 2021). Thus, contrary to the prose-
cutor’s assertion, a reasonable doubt may be based on
‘‘one picky little point,’’ so long as the ‘‘point’’ produces
in the jurors’ minds a real and honest doubt with a
foundation in the evidence or lack thereof, and amounts
to an articulable doubt about which the jurors would
pay heed in the serious affairs of life. See State v. Fergu-
son, supra, 371. Also contrary to the prosecutor’s formu-
lation, a reasonable doubt may be based on an eviden-
tiary consideration that does not emanate from the
jurors’ own ‘‘common sense and life experience.’’13 We
therefore conclude that the prosecutor’s description of
the reasonable doubt standard was improper.
We take this opportunity to admonish prosecutors
and defense counsel alike that they generally should
avoid paraphrasing the reasonable doubt standard. The
reasonable doubt standard is both critically important
and, at the same time, ‘‘defies easy explication.’’ Victor
v. Nebraska, 511 U.S. 1, 5, 114 S. Ct. 1239, 127 L. Ed.
2d 583 (1994); see also State v. Jackson, 283 Conn. 111,
117, 925 A.2d 1060 (2007) (‘‘[t]he perfect definition of
reasonable doubt . . . is as uncertain as its place in
American jurisprudence is certain’’ (internal quotation
marks omitted)), quoting Chalmers v. Mitchell, 73 F.3d
1262, 1266 (2d Cir.), cert. denied, 519 U.S. 834, 117 S.
Ct. 106, 136 L. Ed. 2d 60 (1996). If a prosecutor or
defense counsel wishes to describe the reasonable
doubt standard for the jury in closing argument, he or
she should utilize a previously approved definition or
the one set forth in the trial court’s jury instructions.
Freelance attempts to explain the reasonable doubt
standard should be avoided because they run the risk
of confusing or misleading the jury. See, e.g., State v.
Jackson, supra, 125 (‘‘[a]ttempts to explain the term
reasonable doubt [will] not usually result in making
it any clearer [in] the minds of the [jurors]’’ (internal
quotation marks omitted)); State v. Griffin, supra, 253
Conn. 209 n.15 (‘‘[A]ttempts to clarify the meaning of the
phrase reasonable doubt by explanation, elaboration
or illustration . . . more often than not tend to confuse
or mislead. . . . Thus, we have repeatedly stated that
attempts to clarify reasonable doubt should be avoided
because they often tend to obfuscate that concept.’’
(Citations omitted; internal quotation marks omitted.)).
The defendant’s second valid claim of impropriety
relates to the prosecutor’s comment on defense coun-
sel’s failure to cross-examine S or to challenge her credi-
bility, which the defendant contends improperly diluted
the state’s burden of proof.14 We agree. The following
additional facts are relevant to this claim. At trial,
defense counsel declined to cross-examine S. During
closing argument, the prosecutor stated: ‘‘Remember,
important, the defendant never once, never once chal-
lenged [S’s] credibility. He asked her no questions. Her
testimony stands practically unchallenged and uncon-
troverted.’’ Defense counsel responded to this state-
ment during his closing argument, pointing out: ‘‘[The
defense has] the right not to present any evidence. And
we nevertheless did. I didn’t cross-examine [S]. I hope
you’ll think to yourself that there may be some reasons
why, but we did present a defense. [The defendant]
testified, and he denied the allegations. He wanted you
to hear straight from his mouth that he did not do this.
He did not do this.’’
Following oral argument, defense counsel requested
a curative instruction in light of the prosecutor’s remark
‘‘that defense counsel didn’t present any cross or chal-
lenge’’ to S’s testimony, arguing that the prosecutor’s
remark was ‘‘improper’’ and ‘‘flip[ped] the . . . bur-
den’’ of proof. The trial court agreed to issue a curative
instruction and subsequently instructed the jury: ‘‘If
there was any confusion in closing argument raised by
[the prosecutor] in . . . closing argument on who has
the burden of proof in a criminal matter, it is the state
of Connecticut, the prosecutor, [who] has the burden
of proving the defendant guilty. As I’ve indicated to you
before, the defendant has no obligation to present any
evidence or question any witness. I will charge you on
this burden of proof during my charge in a few minutes.’’
Nonetheless, at the defendant’s sentencing, defense
counsel moved for a new trial, arguing in pertinent part
that the prosecutor’s statement ‘‘constituted improper
prosecutorial impropriety, specifically . . . the state’s
argument switched the burden of proof; it commented
on the defense’s right not to present a defense or [not]
to present any evidence whatsoever.’’ The trial court
denied the defendant’s motion.
We conclude that the prosecutor committed an
impropriety when she informed the jury that S’s testi-
mony was ‘‘unchallenged and uncontroverted.’’ To
begin with, the prosecutor’s statement twice mischarac-
terized the evidence because, contrary to the prosecu-
tor’s assertion, S’s credibility was challenged and con-
troverted. See, e.g., State v. Patterson, 170 Conn. App.
768, 792–93, 156 A.3d 66 (prosecutorial statements mis-
characterizing evidence were improper), cert. denied,
325 Conn. 910, 158 A.3d 320 (2017); State v. Sargent,
87 Conn. App. 24, 39–40, 864 A.2d 20 (same), cert.
denied, 273 Conn. 912, 870 A.2d 1082 (2005). Defense
counsel elected not to cross-examine S, but cross-exam-
ination is not the only method by which to challenge
a witness’ testimony—admission of documentary or
physical evidence or the in-court testimony of other
witnesses, for example, may be used to contradict a
witness’ testimony. In this case, the defendant testified
that he never sexually assaulted S or touched her in an
inappropriate manner, thereby directly challenging and
controverting S’s testimony. In addition, the prosecu-
tor’s statement ran the risk of diluting the state’s burden
of proving the defendant guilty beyond a reasonable
doubt by suggesting that the defendant was required
to cross-examine S in order to undermine her credibility
and to prove his innocence. See State v. Otto, supra,305 Conn. 77 (‘‘prosecutors are not permitted to mis-
state the law’’ or to ‘‘distort the government’s burden
of proof’’). See generally In re Winship, 397 U.S. 358,
364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) (‘‘the [d]ue
process [c]lause protects the accused against convic-
tion except upon proof beyond a reasonable doubt of
every fact necessary to constitute the crime with which
he is charged’’). Particularly when we consider the pros-
ecutor’s remark in connection with her inaccurate
description of the reasonable doubt standard, we con-
clude that it was improper. But cf. State v. Ciullo, supra,
314 Conn. 38–39 (prosecutor’s statement that ‘‘the ‘testi-
mony [of the defendant and his son] does nothing at
all to create a doubt in this case’ ’’ was not improper
because both prosecutor and defense counsel ‘‘accu-
rately stated the burden of proof in their two hours of
closing arguments’’ and trial court ‘‘accurately charged
the jury with the correct burden of proof’’).
C
Having determined that two of the prosecutor’s state-
ments were improper; see part II B of this opinion; we
next address whether those improprieties deprived the
defendant of his due process right to a fair trial. The
defendant bears the burden of demonstrating that,
when ‘‘considered in light of the whole trial, the impro-
prieties were so egregious that they amounted to a
denial of due process.’’ State v. Payne, supra, 303 Conn.
563. ‘‘[O]ur determination of whether any improper con-
duct by the [prosecutor] violated the defendant’s fair
trial rights is predicated on the factors set forth in State
v. Williams, [204 Conn. 523, 540, 529 A.2d 653 (1987)],
with due consideration of whether that [impropriety]
was objected to at trial. . . . Those factors include the
extent to which the [impropriety] was invited by
defense conduct or argument . . . the severity of the
[impropriety] . . . the frequency of the [impropriety]
. . . the centrality of the [impropriety] to the critical
issues in the case . . . the strength of the curative mea-
sures adopted . . . and the strength of the state’s
case.’’ (Internal quotation marks omitted.) State v.
McCoy, 331 Conn. 561, 571–72, 206 A.3d 725 (2019).
Ultimately, ‘‘[t]he issue is whether the prosecutor’s con-
duct so infected the trial with unfairness as to make the
resulting conviction a denial of due process.’’ (Internal
quotation marks omitted.) Id., 571.
It is undisputed that the prosecutorial improprieties
were not invited by the conduct or argument of defense
counsel. Turning to the severity of the prosecutorial
improprieties, we must consider whether defense coun-
sel objected to the improper remarks, requested cura-
tive instructions, or moved for a mistrial. See, e.g., State
v. Fauci, 282 Conn. 23, 51, 917 A.2d 978 (2007). Addition-
ally, ‘‘we look to whether the [improprieties were] bla-
tantly egregious or inexcusable.’’ Id. Defense counsel
did not object to the prosecutor’s misstatement of the
reasonable doubt standard, which ‘‘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.) Id. Furthermore, the prose-
cutor’s misstatement of the law governing reasonable
doubt was isolated, was not blatantly egregious or inex-
cusable, and was counterbalanced by defense counsel’s
frequent description of the ‘‘very high burden’’ of proof
imposed on the state by the reasonable doubt stan-
dard.15 The trial court instructed the jurors that, if coun-
sel’s recitation of the law differed from the trial court’s
jury instructions, they must ‘‘dismiss from [their] minds
what counsel has said to the extent that it differs from
what [the court is] telling [them].’’ Lastly, the trial
court’s instructions on the law accurately, clearly, and
unequivocally described the reasonable doubt standard
to the jury.16 We therefore conclude that the prosecu-
tor’s improper comment on the reasonable doubt stan-
dard was not frequent or severe and, although improper,
was cured by the trial court’s jury instructions. See,
e.g., State v. Stevenson, supra, 269 Conn. 598 (‘‘the [trial]
court’s instructions, when viewed in light of the other
Williams’ factors, were sufficient to cure any harm to
the defendant caused by the [prosecutorial impropri-
ety]’’).
With respect to the prosecutor’s improper statement
describing S’s testimony as ‘‘unchallenged and uncon-
troverted,’’ we note that defense counsel requested a
curative instruction, which the trial court issued. See
part II B of this opinion. Given the isolated nature of
the prosecutor’s comment and the trial court’s prompt
and effective curative instruction,17 which specifically
targeted the prosecutorial impropriety, we conclude
that that this impropriety was not frequent or severe
and was cured by the trial court. See, e.g., State v.
Ceballos, 266 Conn. 364, 413, 832 A.2d 14 (2003) (‘‘[A]
prompt cautionary instruction to the jury regarding
improper prosecutorial remarks or questions can obvi-
ate any possible harm to the defendant. . . . Moreover,
[i]n the absence of an indication to the contrary, the
jury is presumed to have followed [the trial court’s]
curative instructions.’’ (Citations omitted; internal quo-
tation marks omitted.)).
We next address whether the prosecutorial impropri-
eties were central to the critical issues in the case. In
light of the lack of eyewitnesses and physical evidence,
the critical issue in the case was the credibility of S’s
testimony regarding the occurrence of the sexual
assaults. One of the two instances of prosecutorial
impropriety was central to this critical issue. Nonethe-
less, when viewed in the context of the entire trial, we
conclude that ‘‘the impact of these . . . improprieties
was minimal’’; State v. Ciullo, supra, 314 Conn. 60; in
light of the jury’s verdict of not guilty on one count of
sexual assault and one count of risk of injury to a child.
The record ‘‘clearly demonstrat[es] the jurors’ ability
to filter out the allegedly improper statements and make
independent assessments of credibility’’; id.; and, there-
fore, we conclude that the prosecutor’s improper state-
ments did not prejudice the defendant. See State v.
Long, supra, 293 Conn. 53 (jury’s verdict of not guilty
on some charges ‘‘is a strong indication that the defen-
dant was not prejudiced by’’ prosecutorial impropriety).
Lastly, we consider the strength of the state’s case.
As we explained in State v. Felix R., supra, 319 Conn.
1, ‘‘[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 rarity of physical evidence in [sexual assault cases
involving children], a case is not automatically weak
just because a child’s will was overborne and he or she
submitted to the abuse . . . .’’ Id., 18. ‘‘[W]e have 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. In the present case,
we conclude that the state’s case was ‘‘not so weak as to
be overshadowed’’ by the prosecutorial improprieties.
State v. Carlos E., 158 Conn. App. 646, 669, 120 A.3d
1239, cert. denied, 319 Conn. 909, 125 A.3d 199 (2015).
We are confident on this record that the defendant was
not deprived of his due process right to a fair trial.
The judgment is affirmed.
In this opinion the other justices concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
** June 21, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
Each count of sexual assault and risk of injury corresponded to a different
time period and location: counts one and two were predicated on the defen-
dant’s conduct ‘‘on dates in 2005, in the area of Poplar Street,’’ counts three
and four ‘‘on dates between 2009 [and] 2010, in the area of Read Street,’’
and counts five and six ‘‘on dates [between] 2011 [and] 2014, in the area of
Winchester Avenue . . . .’’ The jury found the defendant not guilty of the
crimes charged in counts five and six but found the defendant guilty of the
crimes charged in counts one through four.
2
The defendant appealed directly to this court pursuant to General Stat-
utes § 51-199 (b) (3).
3
The defendant contends that ‘‘[t]he state’s case cannot be considered
a strong one [because] there was no corroborating physical evidence or
witnesses to [S’s] claims.’’ See, e.g., State v. Fernando V., 331 Conn. 201,
215–16, 202 A.3d 350 (2019) (‘‘the state’s case . . . was not an exceedingly
strong one in light of the absence of corroborating physical evidence or any
witnesses to the alleged sexual assaults’’ (internal quotation marks omitted));
State v. Favoccia, 306 Conn. 770, 809, 51 A.3d 1002 (2012) (describing sexual
assault cases that ‘‘[lack] physical evidence’’ and ‘‘[turn] entirely on the
credibility of the complainant’’ as ‘‘not automatically . . . weak, [but] also
not particularly strong’’ (internal quotation marks omitted)). We explain in
part II C of this opinion why this factor—the strength of the state’s case—
does not weigh in favor of finding the alleged evidentiary error to be harmful.
4
Defense counsel did not object to many of the alleged instances of
prosecutorial impropriety, but, ‘‘under settled law, a defendant who fails to
preserve claims of prosecutorial [impropriety] need not seek to prevail under
the specific requirements of State v. Golding, 213 Conn. 233, 239–40, 567
A.2d 823 (1989), and, similarly, it is unnecessary for a reviewing court to
apply the four-pronged Golding test.’’ (Internal quotation marks omitted.).
State v. Payne, 303 Conn. 538, 560, 34 A.3d 370 (2012).
5
The sixth amendment to the United States constitution provides in rele-
vant part: ‘‘In all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him . . . .’’ The sixth
amendment, which is made applicable to the states through the due process
clause of the fourteenth amendment; see Pointer v. Texas, 380 U.S. 400,
403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965); encompasses a criminal defen-
dant’s ‘‘right to be present at trial . . . .’’ State v. Jarzbek, 204 Conn. 683,
697–98, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017,
98 L. Ed. 2d 982 (1988); see also Illinois v. Allen, 397 U.S. 337, 338, 90 S.
Ct. 1057, 25 L. Ed. 2d 353 (1970) (‘‘[o]ne of the most basic of the rights
guaranteed by the [c]onfrontation [c]lause is the accused’s right to be present
in the courtroom at every stage of his trial’’).
6
In State v. John B., supra, 102 Conn. App. 453, the Appellate Court did not
address whether a prosecutor’s improper remarks regarding a defendant’s
nontestimonial courtroom demeanor violate the sixth amendment. In light
of our conclusion that the prosecutor’s comments were not an improper
remark on the defendant’s nontestimonial courtroom demeanor, we need
not address this issue.
7
The defendant contends that, even if the prosecutor’s comments are
construed as a reference to his testimonial demeanor, they nonetheless were
improper because it would be speculative ‘‘to expect the defendant to show
outrage or anger . . . while . . . testifying.’’ The state responds that the
defendant’s claim is inadequately briefed because the defendant failed to
provide further analysis beyond this conclusory assertion. The state is cor-
rect that the defendant has cited no authority and provided no analysis in
support of his claim. This fact might constitute inadequate briefing; see,
e.g., State v. Buhl, 321 Conn. 688, 724, 138 A.3d 868 (2016); but we take it
as an indication of the weakness of the claim and choose to reject the claim
on its merits. Regardless of whether the prosecutor’s remarks regarding the
defendant’s demeanor while testifying were persuasive to the jury, they
were within the permissible bounds of fair comment on witness credibility.
Defense counsel responded by offering a different perspective, and it was
left to the jury to decide whether the prosecutor or defense counsel, if
either, provided a helpful explanation.
8
The fourteenth amendment to the United States constitution provides
in relevant part: ‘‘No State shall . . . deprive any person of life, liberty or
property, without due process of law . . . .’’
9
The defendant contends that the prosecutor’s statement was improper
under State v. Medrano, supra, 308 Conn. 604, in which we exercised our
supervisory authority over the administration of justice to ‘‘direct our trial
courts in the future to refrain from instructing jurors, when a defendant
testifies, that they may specifically consider the defendant’s interest in the
outcome of the case and the importance to him of the outcome of the trial.’’
Id., 631. We disagree. In Medrano, we held that, although a jury charge
regarding a criminal defendant’s interest in the outcome of the case does
not ‘‘[undermine] the presumption of innocence’’ or a defendant’s ‘‘rights
under the federal and state constitutions to a fair trial and to testify in his
own defense’’; id., 622; there is ‘‘a danger of juror misunderstanding’’ when
the trial court’s instruction is ‘‘viewed in isolation from the qualifying lan-
guage concerning evaluating the defendant’s credibility in the same manner
as the testimony of other witnesses . . . .’’ Id., 629–30. We therefore
‘‘instruct[ed] the trial courts to use the general credibility instruction to
apply to a criminal defendant who testifies.’’ Id., 631.
Our holding in Medrano was predicated on the trial court’s role as a
neutral and detached arbiter of justice and its duty to instruct the jurors
on the law in a fair, impartial, and dispassionate manner. Although a prosecu-
tor is a minister of justice; see id., 612; she is not neutral, detached, impartial,
or dispassionate. Instead, a prosecutor is an advocate with a professional
obligation to argue zealously, albeit fairly, on behalf of the state. ‘‘The
parameters of the term zealous advocacy are . . . well settled,’’ and it ‘‘is
not improper for the prosecutor to comment [on] the evidence presented
at trial and to argue the inferences that the jurors might draw therefrom
. . . .’’ (Internal quotation marks omitted.) State v. Ciullo, supra, 314 Conn.
40, 41. Because the defendant’s interest in the case was adduced at trial, there
was nothing improper about the prosecutor’s reference to that evidence in
her closing argument.
10
During cross-examination, the following colloquy occurred between the
prosecutor and the defendant:
‘‘[The Prosecutor]: And when [N] was working, there were times where
you didn’t work. Yes, no?
‘‘[The Defendant]: On Poplar Street, yes.
‘‘[The Prosecutor]: Okay. And you were home alone with [S]?
‘‘[The Defendant]: And my brother.
‘‘[The Prosecutor]: Was he there every single time?
‘‘[The Defendant]: He lived four houses away, yes.
‘‘[The Prosecutor]: So, he was there every time you had a day off and
you were with [S]?
‘‘[The Defendant]: We used to have video game wars on college football
NCAA 2005, yes.
‘‘[The Prosecutor]: Every time?
‘‘[The Defendant]: I didn’t have a job at the time. He was always there.
‘‘[The Prosecutor]: So, you were never alone with [S] during that time
period?
‘‘[The Defendant]: Occasionally.’’
11
Specifically, the defendant challenges the following two statements: (1)
‘‘At one point, [S] cried. Let me ask you this. Do you think it’s hard to lie—
well, let me ask you this. If—do you think or ask yourself how hard it is
to fake emotion like you saw on the witness stand. You have to be a darn
good actress to do that.’’ And (2) ‘‘Well, motive—one of the things about
looking at [S’s] credibility, you have to look at her motive to lie, and, in
this case, the state submits she had none.’’
12
The defendant also claims that the prosecutor improperly vouched for
T’s credibility when she made the following remark: ‘‘Wouldn’t it shock you
like it shocked [T] that somebody you had grown up around makes that
comment to you, and, honestly, [T] was a lovely girl, but did she seem bright
enough to be able to craft a lie such as this?’’ For the reasons explained in
this opinion, we reject this claim. See State v. Elmer G., supra, 333 Conn.
205–206 (prosecutor’s statements that ‘‘ ‘[i]f a young girl such as [the victim]
wanted to fabricate a lie, is this the lie [she] would fabricate’ ’’ and ‘‘ ‘I would
submit to you that there is no young girl that wants to fabricate an untruth
of this extent and this magnitude’ ’’ were not improper); State v. Felix, 111
Conn. App. 801, 810, 812, 961 A.2d 458 (2008) (prosecutor’s comment that
state’s witnesses were ‘‘ ‘not smart enough to lie’ ’’ was not improper because
‘‘[t]he prosecutor was entitled to apply common sense to the facts in evidence
and to highlight [the witnesses’] motives to tell the truth’’).
13
Indeed, in a case such as the present one, in which expert testimony
was admitted regarding a victim’s delayed disclosure of sexual assault, some
of the evidence on which the jury may rely to reach a verdict is, by definition,
beyond the common knowledge of the average layperson. See, e.g., State
v. Iban C., 275 Conn. 624, 639, 881 A.2d 1005 (2005) (Expert testimony is
admissible only on ‘‘matters [that] are not beyond the ken of the average
juror . . . . When inferences or conclusions are so obvious that they could
be as easily drawn by the jury as the expert from the evidence, expert
testimony regarding such inferences is inadmissible’’ (Citation omitted.)).
14
Additionally, the defendant claims that the prosecutor improperly
diluted the state’s burden of proof by commenting on the defendant’s failure
to ‘‘cite a motive for [S] to make this up.’’ Because a prosecutor permissibly
may comment on the weaknesses in the defendant’s case; see, e.g., State
v. Andrews, supra, 313 Conn. 308; as well as the lack of evidence indicating
that a victim has a motive to lie; see, e.g., State v. Elmer G., supra, 333
Conn. 205; we reject this claim.
15
In closing argument, defense counsel informed the jury that it ‘‘simply
need[ed] to determine if the state proved all the elements of the charges
beyond a reasonable doubt. You don’t need to figure out what happened.
You are simply determining if the state met its burden. If you have any
uncertainty, if you feel like you weren’t sure, if you have a moment of
hesitation, if you’re not confident about the decision, your job is easy and you
must find [the defendant] not guilty.’’ At another point in closing argument,
defense counsel argued that, ‘‘if you think for a moment or have any hesita-
tion that [S] is not telling the truth, then you must return a verdict of not
guilty. That is . . . reasonable doubt. If you have a brief hesitation, if you
pause, that is exactly what a reasonable doubt is. The evidence does not
prove beyond a reasonable doubt that [the defendant] is guilty of these
crimes.’’ Finally, defense counsel stated: ‘‘[I]f you have a—a moment of
hesitation, if you don’t know, a feeling in your stomach, if you don’t—you
are not confident, then that’s a reasonable doubt. I’m sure that you will
thoughtfully consider all of the evidence of this case. I know you will hold
the state to its burden.’’ Defense counsel’s description of the reasonable
doubt standard as ‘‘a moment of hesitation’’ or ‘‘a feeling in your stomach’’
did not comport with the trial court’s reasonable doubt instruction or any
previously approved definitions and, therefore, like the prosecutor’s descrip-
tion of the reasonable doubt standard, was improper.
16
The trial court instructed the jury: ‘‘The state’s obligation is to prove
each and every element of the crime charge[d] beyond a reasonable doubt.
‘‘And that brings us to reasonable doubt. Now, what does this mean,
beyond a reasonable doubt? The phrase reasonable doubt has no technical
or unusual meaning. The meaning of reasonable doubt could be arrived at
by emphasizing the word reasonable. It is not a surmise, a guess, or mere
conjecture. It is such a doubt as in the serious affairs that concern you, you
would heed; that is, such a doubt as would cause reasonable men and
women to hesitate to act upon it in matters of importance. It is not hesitation
springing from any feelings of pity or sympathy for the accused, or any
other person who might be affected by your decision. It is, in other words,
a real doubt, an honest doubt, a doubt which has its foundation in the
evidence or lack of evidence. It is doubt that is honestly entertained and is
reasonable in light of the evidence after a fair comparison and careful
examination of the entire evidence. Proof beyond a reasonable doubt does
not mean proof beyond all doubt. The law does not require absolute certainty
on the part of the jury before it returns a verdict of guilty. Absolute certainty
in the affairs of life is almost never attainable. The state does not have
to prove guilt beyond all doubt or to a mathematical certainty or to an
absolute certitude.
‘‘The law requires, after hearing all the evidence, if there is something in
that evidence or lack of evidence which leaves in the minds . . . of the
jury as reasonable men and women a reasonable doubt about the guilt of
the accused, then the accused must be given the benefit of that doubt and
acquitted. If there is no reasonable doubt then the accused must be found
guilty. Since the burden is [on] the state to prove the defendant guilty beyond
a reasonable doubt of every essential element of the crime charged, the
defendant has a right to rely [on] a failure of the prosecution to establish
such proof. Proof beyond a reasonable doubt is proof that precludes every
reasonable hypothesis, except guilt, and is inconsistent with any other
rational conclusion.’’
17
The jury’s verdict of not guilty on two of the six charges ‘‘speaks to the
strength and efficacy of the curative measures adopted.’’ State v. Ciullo,
supra, 314 Conn. 60.