State v. Elias V.

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STATE OF CONNECTICUT v. ELIAS V.*
(AC 38487)
Alvord, Keller and Pellegrino, Js.
Argued May 11—officially released September 20, 2016
(Appeal from Superior Court, judicial district of
Hartford, Suarez, J.)
Katherine C. Essington, assigned counsel, for the
appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and Chris A. Pelosi, senior assistant state’s attor-
ney, for the appellee (state).
Opinion
ALVORD, J. The defendant, Elias V., appeals from
the judgment of conviction, rendered after a jury trial,
of three counts of sexual assault in the first degree in
violation of General Statutes § 53a-70 (a) (1); one count
of sexual assault in the second degree in violation of
General Statutes § 53a-71 (a) (1); one count of sexual
assault in the fourth degree in violation of General Stat-
utes § 53a-73a (a) (1) (A); two counts of risk of injury
to a child in violation of General Statutes § 53-21 (a)
(1); and three 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 court improperly
excused a juror before trial without first notifying the
defendant or his counsel; (2) the court committed plain
error concerning the constancy of accusation testimony
at trial; and (3) the prosecutor engaged in impropriety
in his cross-examination of the defendant and in closing
argument. We affirm the judgment of the trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
In 2003, the defendant began to sexually abuse his older
daughter E.V., who was nine years old at the time. Over
the next eight years, the defendant frequently subjected
E.V. to various forms of sexual abuse, including forced
vaginal penetration, attempted anal penetration, oral
sex, masturbation, and other sexual contact with her
intimate parts.1
In addition to sexually abusing E.V., there was exten-
sive testimony about the defendant regularly exposing
E.V. and his younger daughter, K.V., to other forms of
abuse that jeopardized their health and welfare. For
example, the defendant was very possessive of E.V. and
K.V., and he would inspect K.V. in the shower to ensure
that she was a virgin, check E.V.’s body after school
for hickeys, and dress both of the girls in boys clothing.
He would also force E.V. and K.V. to consume alcohol.
Finally, the defendant was prone to violent outbursts,
and he would regularly physically abuse K.V. and occa-
sionally physically abuse E.V. The defendant’s violent,
controlling, and, at times, paranoid behavior was often
exacerbated by his use of crack cocaine.
The events that led to the defendant’s arrest were
set in motion by two reports, made by E.V.’s and K.V.’s
schools, to the Department of Children and Families
(department) in 2011. While E.V. was enrolled in high
school, the defendant would frequently require E.V. to
stay home under the pretense of having her take care
of the house so that he could sexually abuse her. In
the fall of 2010, E.V. confided in a teacher, with whom
she had taken classes throughout her four years of high
school, that she often missed school because her father
insisted that she stay home ‘‘to take care of him, the
house, and her little brother,’’2 not because she was
ill, as she had previously indicated. The teacher then
notified the principal, school social worker and the
school resource officer about the potential truancy
issue. Over the next few months, the school resource
officer spoke to E.V.’s parents about her absenteeism
in an attempt to resolve the issue. When E.V.’s absentee-
ism persisted, the school resource officer contacted the
department on March 3, 2011.
That same day, K.V. arrived home late from school
because the public bus she took home had broken
down. When she arrived home, the defendant exten-
sively beat her, leaving bruises on her face and body,
because she was late and he did not believe her excuse.
On March 4, 2011, despite the visible bruising, K.V. went
to school.3 At the urging of friends, K.V. went to the
school counselor, who called the department. The
department sent an investigator, Gloria Rodriguez, to
interview K.V. about the potential physical abuse. Rodri-
guez was also provided with the report E.V.’s school had
made about her absenteeism and potential educational
neglect. After interviewing K.V. and her mother, M.V.,
Rodriguez suspected that E.V. was being sexually
abused at home. When Rodriguez interviewed E.V., she
directly asked her whether she was being sexually
abused, and E.V. confirmed that she was being sexually
abused by her father.
On February 3, 2014, a trial commenced on a ten
count long form information, charging the defendant
in eight counts for his sexual abuse of E.V. and in two
counts for his sexual and nonsexual abuse of E.V. On
February 10, 2014, the jury returned a guilty verdict on
all counts. This appeal followed.
I
The defendant first claims on appeal that the court
improperly excused a regular juror before trial without
first notifying the defendant or his counsel. Because
the defendant failed to preserve this claim for appeal,
he seeks Golding review,4 arguing that the court vio-
lated his state and federal constitutional rights by excus-
ing a juror without first notifying the defendant or his
counsel. Alternatively, the defendant seeks reversal
under the plain error doctrine, arguing that the trial
court failed to ‘‘articulate sufficient facts to support the
conclusion that the juror was no longer able to perform
her duties due to her diagnosis,’’ as required by General
Statutes § 54-82h (c). The state responds that both
claims are unreviewable under Golding and do not war-
rant reversal under the plain error doctrine because the
substitution of a regular juror for an alternate juror
does not implicate a defendant’s constitutional rights
and the court complied with § 54-82h (c) when it dis-
missed the juror for good cause. We agree with the state.
A
We first address the defendant’s claim that the court
violated his state and federal constitutional rights when
it excused the juror without first notifying the defendant
or his counsel.5 The defendant argues that he was enti-
tled to notice prior to the excusal of the juror on the
basis of the right to individual voir dire under article
first, § 19, of the Connecticut constitution, as amended
by article four of the amendments; the right to counsel
under the sixth and fourteenth amendments to the
United States constitution; and the due process right
to be present at all critical stages of a prosecution under
the fifth and fourteenth amendments to the United
States constitution.6
The defendant seeks Golding review. ‘‘Under Gold-
ing, a defendant can prevail on a claim of constitutional
error not preserved at trial only if the following condi-
tions are met: (1) the record is adequate to review the
alleged claim of error; (2) the claim is of constitutional
magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation . . . exists and
. . . deprived the defendant of a fair trial; and (4) if
subject to harmless error analysis, the state has failed to
demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt. In the absence of
any one of these conditions, the defendant’s claim will
fail. The appellate tribunal is free, therefore, to respond
to the defendant’s claim by focusing on whichever con-
dition is most relevant in the particular circumstances.’’
(Internal quotation marks omitted.) State v. Dixon, 318
Conn. 495, 511, 122 A.3d 542 (2015).
We conclude that the defendant’s constitutional
claims are unreviewable because he has failed to allege
claims of constitutional magnitude as required by the
second prong of Golding.
1
The defendant argues that article first, § 19, of the
Connecticut constitution, requires a court to notify a
defendant when a selected juror indicates that she is
no longer able to participate in the proceeding so that
defense counsel has an opportunity, if necessary, to
voir dire the juror.7 We disagree.
Article first, § 19, provides in pertinent part that ‘‘[t]he
right to question each juror individually by counsel shall
be inviolate.’’ Article first, § 19, does not, however, vest
parties with an absolute right to question prospective
and selected jurors individually at any time. Instead,
our Supreme Court has interpreted article first, § 19,
as constitutionalizing only ‘‘certain rights . . . regard-
ing the selection of individual jurors,’’ namely, the right
‘‘to challenge jurors peremptorily’’ and the ‘‘right of the
parties to have counsel conduct individual examina-
tions of prospective jurors . . . .’’ (Emphasis added;
internal quotation marks omitted.) Rozbicki v. Huy-
brechts, 218 Conn. 386, 391–93, 589 A.2d 363 (1991);
see also State v. Griffin, 251 Conn. 671, 699, 741 A.2d
913 (1999) (‘‘[t]he purpose of voir dire is to facilitate
[the] intelligent exercise of peremptory challenges and
to help uncover factors that would dictate disqualifica-
tion for cause’’ [internal quotation marks omitted]).
Here, the defendant challenges the court’s decision
to excuse a selected juror without first notifying him
or counsel. Therefore, article first, § 19, is inapposite,
and this claim does not merit Golding review.
2
The defendant also invokes his right to counsel under
the sixth and fourteenth amendments to the United
States constitution and his due process right to be pre-
sent under the fifth and fourteenth amendments to the
United States constitution to support his claim that
he was entitled to notice prior to the juror’s excusal.
Because of the interrelated nature of these claims, we
address them together.
‘‘[T]he right to personal presence at all critical stages
of the trial and the right to counsel are fundamental
rights of each criminal defendant.’’ (Internal quotation
marks omitted.) State v. Bonner, 290 Conn. 468, 491,
964 A.2d 73 (2009). Whether a particular matter consti-
tutes a critical stage depends not on the timing but on
the nature of the matter.
‘‘The cases have defined critical stages [for the right
to counsel] as proceedings between an individual and
agents of the State (whether ‘formal or informal, in
court or out,’ . . .) that amount to ‘trial-like confronta-
tions,’ at which counsel would help the accused ‘in
coping with legal problems or . . . meeting his adver-
sary’ ’’; (citation omitted) Rothgery v. Gillespie County,
554 U.S. 191, 212 n.16, 128 S. Ct. 2578, 171 L. Ed. 2d
366 (2008); as well as proceedings in which ‘‘counsel’s
absence might derogate from the accused’s right to a
fair trial’’; United States v. Wade, 388 U.S. 218, 226, 87
S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). In the context of the
right to be present, ‘‘courts have evaluated the extent to
which a fair and just hearing would be thwarted by [the
defendant’s] absence or whether his presence has a
relation, reasonably substantial, to the [fullness] of his
opportunity to defend against the charge’’ when
determining whether a proceeding is a critical stage.
(Internal quotation marks omitted.) State v. Gilberto
L., 292 Conn. 226, 237, 972 A.2d 205 (2009).
In this case, the court’s decision to excuse the juror
because of a medical diagnosis did not amount to a
‘‘trial-like’’ confrontation between the state and the
defendant. Nor did it implicate the defendant’s right
to a fair trial; ‘‘the mechanisms for providing for and
dismissing alternate jurors, and the circumstances
under which they may be substituted for regular jurors,
do not implicate [state or federal] constitutional rights.’’
State v. Williams, 231 Conn. 235, 244, 645 A.2d 999
(1994), overruled in part on other grounds by State v.
Murray, 254 Conn. 472, 487, 757 A.2d 578 (2000) (en
banc);8 see also State v. LaBrec, 270 Conn. 548, 559,
854 A.2d 1 (2004). Finally, the discretionary decision
to excuse the juror in this circumstance was a straight-
forward judicial administrative action not implicating
the defendant’s ability to defend himself later at trial.9
We conclude that the defendant’s claims are unre-
viewable because the excusal of the juror in this case
does not implicate the defendant’s constitutional rights
as required by the second prong of Golding.
B
The defendant also seeks reversal under the plain
error doctrine, arguing that the court violated § 54-82h
(c) by making insufficient factual findings of good cause
before excusing the juror.10 The state responds that
consideration of the defendant’s claim under the plain
error doctrine is inappropriate in this case because the
decision to excuse a juror is committed to the sound
discretion of the court, and the court in this case was
within its discretion to grant the juror’s request to be
excused due to a medical condition. We agree with
the state.
The plain error doctrine permits the court to ‘‘reverse
or modify the decision of the trial court if it determines
. . . that the decision is . . . erroneous in law. . . .’’
Practice Book § 60-5. It ‘‘is not . . . a rule of review-
ability. It is a rule of reversibility. That is, it is a doctrine
that this court invokes in order to rectify a trial court
ruling that, although either not properly preserved or
never raised at all in the trial court, nonetheless requires
reversal of the trial court’s judgment, for reasons of
policy.’’ State v. Cobb, 251 Conn. 285, 343 n.34, 743 A.2d
1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148
L. Ed. 2d 64 (2000). ‘‘A party cannot prevail under plain
error unless it has demonstrated that the failure to grant
relief will result in manifest injustice.’’ (Internal quota-
tion marks omitted.) State v. LaBrec, supra, 270
Conn. 559.
In the present case, we perceive no impropriety that
would result in manifest injustice. ‘‘Under settled princi-
ples, [a] court may excuse a regular juror if that juror,
for any reason, becomes unable to perform his or her
duty. General Statutes § 54-82h (c). The power to
excuse a juror under this section is expressly premised
on a finding of cause. . . . Whether in the circum-
stances just cause exists to excuse a juror is a matter
within the discretion of the . . . court.’’ (Internal quo-
tation marks omitted.) State v. Apodaca, 303 Conn. 378,
386, 33 A.3d 224 (2012).
‘‘We have recognized that unavailability due to illness
may constitute cause to excuse a juror,’’ even if the
medical condition will render the juror available for a
short or indeterminable period. State v. Gonzalez, 315
Conn. 564, 583, 585, 109 A.3d 453 (2015); see, e.g., State
v. Apodaca, supra, 303 Conn. 386–87 (trial court’s deci-
sion to excuse juror that was ill overnight with flu and
unable to confirm when she would return was not abuse
of discretion). Here, the trial court articulated a proper
basis for its decision to excuse the juror: the juror was
diagnosed with a medical condition that prevented the
juror from taking part in the trial.
The defendant nevertheless insists that the trial court
was obligated to ‘‘state the diagnosis or medical condi-
tion of the juror on the record, describe her current
physical condition, or detail what medical treatment or
intervention was necessary.’’ Neither the plain language
of § 54-82h (c) nor our case law interpreting it11 mandate
an invasion of the juror’s privacy interests in this
manner.
From our careful review of the record, we conclude
that the defendant has not met this stringent standard
for reversal under the plain error doctrine concerning
his unpreserved claim.
II
We next address the defendant’s claims that the court
(1) sua sponte should have stricken testimony that
exceeded the scope of the constancy of accusation doc-
trine, and (2) erroneously instructed the jury concern-
ing the proper usage of constancy of accusation
testimony.12 Because the defendant failed to preserve
these issues at trial, he now claims that they warrant
reversal under the plain error doctrine. We conclude
that both claims are unreviewable.
In sex crime cases, a person to whom a sexual assault
victim has reported the assault may testify about the
report, but this testimony is subject to certain restric-
tions. State v. Troupe, 237 Conn. 284, 290–91 n.7, 677
A.2d 917 (1996) (en banc); Conn. Code Evid. § 6-11 (c).
First, the witness may testify only ‘‘with respect to the
fact and timing of the victim’s complaint’’ and the details
regarding ‘‘the assault must be strictly limited to those
necessary to associate the victim’s complaint with the
pending charge, including, for example, the time and
place of the attack or the identity of the alleged perpe-
trator.’’ State v. Troupe, supra, 304. Second, ‘‘such evi-
dence is admissible only to corroborate the victim’s
testimony and not for substantive purposes.’’ Id. With
this legal framework in mind, we address each of the
defendant’s claims in turn.
A
The defendant first claims that the court sua sponte
should have stricken the testimony by M.V. and Rodri-
guez about the types of sexual acts the defendant
engaged in with E.V. because it went beyond the fact
and timing of E.V.’s complaint.13 The state responds that
this claim cannot be reviewed because defense counsel
never objected to this testimony, and the court was
under no obligation to strike the evidence sua sponte.
We agree with the state.
It is well settled that ‘‘when opposing counsel does
not object to evidence, it is inappropriate for the trial
court to assume the role of advocate and decide that
the evidence should be stricken. . . . The court cannot
determine if counsel has elected not to object to the
evidence for strategy reasons. . . . Experienced litiga-
tors utilize the trial technique of not objecting to inad-
missible evidence to avoid highlighting it in the minds
of the jury. Such court involvement might interfere with
defense counsel’s tactical decision to avoid highlighting
the testimony. When subsequent events reveal that it
was an imprudent choice, however, the defendant is not
entitled to turn the clock back and have [the appellate
court] reverse the judgment because the trial court did
not, sua sponte, strike the testimony and give the jury
a cautionary instruction.’’ (Citations omitted.) State v.
Wragg, 61 Conn. App. 394, 399, 764 A.2d 216 (2001) (no
plain error for the court to refrain from striking, sua
sponte, the constancy of accusation testimony).
We therefore conclude that it was not plain error
for the court to refrain from sua sponte striking the
constancy of accusation testimony of M.V. and
Rodriguez.
B
The defendant next claims that the court’s instruction
on the constancy of accusation testimony was defective
in two respects: (1) the court erroneously omitted M.V.’s
name from the instruction and (2) the instruction was
misleading concerning the permissible use of the con-
stancy of accusation testimony. We disagree.
On February 6, 2014, the court conducted a charging
conference in chambers at which it provided a copy of
the draft jury instructions to both counsel and received
their comments. On February 7, 2014, the court memori-
alized this conference on the record, discussing the
changes that counsel requested. In pertinent part,
defense counsel had requested a delay reporting
instruction under the constancy of accusation instruc-
tion, and the court granted that request.14 Notably, the
constancy of accusation charge referenced only Rodri-
guez’ testimony about E.V.’s report of sexual abuse to
her, not M.V.’s testimony about E.V.’s report of sexual
abuse to her. The defendant did not request that M.V.’s
name be included in the charge nor did he object to
the omission.
As the defendant concedes, because defense counsel
participated in a charging conference, did not submit
a written request to charge the jury concerning M.V.’s
testimony, and expressed satisfaction with the instruc-
tion, which referenced only the testimony of Rodriguez,
he waived any challenge to the jury instruction at trial
under State v. Kitchens, 299 Conn. 447, 482–83, 10 A.3d
942 (2011); see also State v. Coleman, 304 Conn. 161,
174–75, 37 A.3d 713 (2012) (recognizing that a defendant
can expressly and implicitly waive a claim of instruc-
tional error). Consequently, the defendant asserts that
both instructional error claims warrant consideration
under the plain error doctrine.
As an initial matter, ‘‘[t]his court has adhered to the
view that waiver thwarts a finding that plain error
exists.’’ State v. Bialowas, 160 Conn. App. 417, 430, 125
A.3d 642 (2015) (collecting cases). However, even if we
were to assume, without deciding, that the defendant’s
waiver would not preclude him from seeking such relief;
see State v. Darryl W., 303 Conn. 353, 371–72 n.17, 33
A.3d 239 (2012) (‘‘[w]e recognize that there appears to
be some tension in our appellate case law as to whether
reversal on the basis of plain error could be available
in cases where the alleged error is causally connected
to the defendant’s own behavior’’); we conclude that
the defendant cannot demonstrate that the claimed
impropriety was so clear, obvious and indisputable as
to warrant the extraordinary remedy of reversal.
The defendant first argues that the court erred by
not including M.V.’s name in the jury instruction. To
prevail, the defendant would have to demonstrate that
a failure in an evidentiary instruction to refer to all of
the evidence that the instruction could possibly encom-
pass is plain error. There is, however, no such general
rule. Nor is there such a rule in the constancy of accusa-
tion context in particular. See State v. Troupe, supra,
237 Conn. 305 (stating only that ‘‘the defendant is enti-
tled to an instruction that any delay by the victim in
reporting the incident is a matter for the jury to consider
in evaluating the weight of the victim’s testimony’’);
Conn. Code Evid. § 6-11 (c) (not requiring limiting
instruction where there has been no request).
‘‘It is well established in Connecticut . . . that the
trial court generally is not obligated, sua sponte, to give
a limiting instruction.’’ State v. Cator, 256 Conn. 785,
801, 781 A.2d 285 (2001); see also State v. Hill, 307
Conn. 689, 705 n.12, 59 A.3d 196 (2013). ‘‘The failure
by the trial court to give, sua sponte, an instruction that
the defendant did not request, that is not of constitu-
tional dimension and that is not mandated by statute
or rule of practice is not such an obvious error that
it will affect the fairness and integrity of and public
confidence in the judicial proceedings.’’ (Internal quota-
tion marks omitted.) State v. Eason, 47 Conn. App. 117,
120, 703 A.2d 130 (1997), cert. denied, 243 Conn. 962,
705 A.2d 552 (1998). We conclude therefore that the
defendant’s first claim of instructional error fails to
meet the stringent requirements of plain error review.
Next, the defendant argues that the jury instruction
undoubtedly left the jury with the impression that Rodri-
guez’ testimony about E.V.’s out-of-court report of sex-
ual abuse could be used as substantive evidence of that
abuse or to corroborate all of E.V.’s in-court testimony
concerning all of the offenses, not just to corroborate
the fact that E.V. reported the defendant’s sexual abuse
to Rodriguez. We disagree.
‘‘The pertinent test is whether the charge, read in its
entirety, fairly presents the case to the jury in such a
way that injustice is not done to either party under the
established rules of law. Thus, [t]he whole charge must
be considered from the standpoint of its effect on the
[jurors] in guiding them to the proper verdict . . . and
not critically dissected in a microscopic search for pos-
sible error.’’ (Internal quotation marks omitted.) State
v. Apodaca, supra, 303 Conn. 390–91.
In this case, the court’s instruction, when read in its
entirety, adequately conveyed to the jury the limited
permissible usage of the constancy of accusation testi-
mony. The court began its charge by explaining the
difference between E.V.’s in-court testimony about her
abuse, which ‘‘[y]ou may use . . . as evidence and
proof of the facts asserted,’’ and Rodriguez’ testimony
about E.V.’s out-of-court report of abuse, the usage of
which ‘‘was limited in scope to the fact and timing of
the complainant’s complaint, the time and place of the
alleged sexual assault, and the identity of the alleged
perpetrator.’’ (Emphasis added.)
The court went on to instruct the jury that the con-
stancy of accusation testimony ‘‘is to be considered by
you only in determining the weight and credibility’’ of
E.V.’s testimony, not ‘‘to prove the truth of the matter
asserted in the out-of-court statement.’’ Finally, toward
the close of its charge, the court again instructed the
jury concerning the limited permissible usage of this
evidence. The court explained that if the jury found
that E.V.’s in-court and out-of-court statements about
her abuse were consistent, the jury ‘‘may find her testi-
mony in the court to be corroborated or supported with
respect to the fact and timing of her complaint, the
time and place of the alleged sexual assault, and the
identity of the alleged perpetrator.’’ (Emphasis added.)
Notably, the court’s description of the permissible
uses of the constancy of accusation testimony at the
beginning and end of its charge was virtually identical
to the Supreme Court’s description of the permissible
uses of constancy of accusation testimony in Troupe.
See State v. Troupe, supra, 237 Conn. 304 (stating that
a witness ‘‘may testify only with respect to the fact and
timing of the victim’s complaint’’ and that the details
of the assault ‘‘must be strictly limited to those neces-
sary to associate the victim’s complaint with the pend-
ing charge, including, for example, the time and place
of the attack or the identity of the alleged perpetrator’’
[emphasis added]); see also Conn. Code Evid. § 6-11
(c) (‘‘A person to whom a sexual assault victim has
reported the alleged assault may testify that the allega-
tion was made and when it was made . . . . Any testi-
mony by the witness about details of the assault shall
be limited to those details necessary to associate the
victim’s allegations with the pending charge.’’).
Likewise, the court’s instruction as a whole is virtu-
ally identical to the instruction provided on the Judicial
Branch’s website for constancy of accusation testi-
mony. See Connecticut Criminal Jury Instructions (4th
Ed. 2008) § 7.2-1 (Rev. to May 20, 2011), available at
http://www.jud.ct.gov/ji/criminal/part7/7.2-1.htm (last
visited September 9, 2016). While this fact is not deter-
minative of the matter before this court, as the Judicial
Branch website instructions are nonbinding, it is
instructive; particularly, when the instruction comports
with the explanation of the doctrine set forth in our
case law, as the instruction in this case did. See State
v. Coleman, supra, 304 Conn. 176 (finding no plain error
where ‘‘the instruction at issue is provided on the judi-
cial branch’s website’’ and accords with relevant case
law).
Upon reviewing the constancy of accusation instruc-
tion given by the court in its entirety, therefore, a show-
ing of plain error has not been made.
III
Finally, we turn to the defendant’s claims of prosecu-
torial impropriety. Specifically, the defendant claims
that he was denied a fair trial because the prosecutor
(1) injected extraneous matters into the trial and (2)
improperly appealed to the passions and emotions of
the jury. We conclude that there was no impropriety.
We review claims of prosecutorial impropriety under
a two step analytical process. ‘‘The two steps are sepa-
rate and distinct. . . . We first examine whether prose-
cutorial impropriety occurred. . . . Second, if an
impropriety exists, we then examine whether it
deprived the defendant of his due process right to a
fair trial. . . . In other words, an impropriety is an
impropriety, regardless of its ultimate effect on the fair-
ness of the trial. Whether that impropriety was harmful
and thus caused or contributed to a due process viola-
tion involves a separate and distinct inquiry.’’ (Citations
omitted.) State v. Fauci, 282 Conn. 23, 32, 917 A.2d 978
(2007). ‘‘The defendant bears the burden of satisfying
both of these analytical steps.’’ State v. O’Brien-Veader,
318 Conn. 514, 524, 122 A.3d 555 (2015).
A
The defendant first claims that the prosecutor
injected extraneous matters into the trial by suggesting
during his cross-examination of the defendant that the
defendant was lying to avoid being labeled in prison as
a sex offender. The state responds that the defendant’s
claim is evidentiary in nature and therefore is not pre-
served. We agree with the state.
At trial, the defendant elected to testify on his own
behalf. During his cross-examination of the defendant,
the prosecutor, without objection, suggested that the
defendant had a motive to lie to avoid being labeled in
prison as a sex offender that sexually assaulted his
daughter.15
‘‘Although our Supreme Court has held that unpre-
served claims of prosecutorial impropriety are to be
reviewed under the [factors enunciated in State v. Wil-
liams, 204 Conn. 523, 540, 529 A.2d 653 (1987)], that
rule does not pertain to mere evidentiary claims masqu-
erading as constitutional violations.’’ (Internal quota-
tion marks omitted.) State v. Alex B., 150 Conn. App.
584, 589, 90 A.3d 1078, cert. denied, 312 Conn. 924, 94
A.3d 1202 (2014); see also State v. Rowe, 279 Conn. 139,
151–52, 900 A.2d 1276 (2006) (declining to review a
claim of prosecutorial impropriety that was evidentiary
in nature). The defendant has failed to bring to our
attention any law suggesting that it is constitutionally
improper for a prosecutor to cross-examine a criminal
defendant about his motive to lie, just as he would any
other witness.
It is well settled that ‘‘[a]n accused in taking the stand
subjects himself to the same rules and is called on to
submit to the same tests which could by law be applied
to other witnesses.’’ State v. Palozie, 165 Conn. 288,
298, 334 A.2d 468 (1973) (holding that the state was
permitted to question the defendant concerning his use
of a ‘‘strap’’ on his children during a time period not
within the information because it was relevant on the
issue of the credibility of the defendant). This includes
an examination of the defendant’s motive to lie. State
v. Leconte, 320 Conn. 500, 510, 131 A.3d 1132 (2016)
(‘‘[a]s an appropriate and potentially vital function of
cross-examination, exposure of a witness’ motive, inter-
est, bias or prejudice may not be unduly restricted’’
[internal quotation marks omitted]); State v. Warholic,
278 Conn. 354, 381, 897 A.2d 569 (2006) (‘‘[q]uestions
about a witness’ motive are proper because they seek
to elicit facts from which a jury can make credibility
determinations’’); State v. Holliday, 85 Conn. App. 242,
261, 856 A.2d 1041 (‘‘[o]ur jurisprudence instructs that
a prosecutor may comment on a witness’ motivation
to be truthful or to lie’’), cert. denied, 271 Conn. 945,
861 A.2d 1178 (2004).
The defendant has not cited any authority for the
proposition that a prosecutor cannot question a defen-
dant about his motive to lie because it relates to the
collateral consequences of conviction in the case. Here,
the defendant was charged in eight counts with offenses
relating to his sexual abuse of E.V. If convicted of even
one of these multiple counts, the defendant would not
only be a ‘‘sex offender,’’ but a sex offender that sexually
abused his daughter. Exploring the defendant’s motive
to lie to avoid the well-known16 stigmatizing effects of
this classification did not inject an extraneous matter
into the trial.
‘‘[R]obing garden variety claims [of an evidentiary
nature] in the majestic garb of constitutional claims
does not make such claims constitutional in nature.
. . . Putting a constitutional tag on a nonconstitutional
claim will no more change its essential character than
calling a bull a cow will change its gender.’’ (Internal
quotation marks omitted.) State v. Ruffin, 144 Conn.
App. 387, 399, 71 A.3d 695 (2013), aff’d, 316 Conn. 20,
110 A.3d 1225 (2015). Here, the challenge to the cross-
examination of the defendant by the prosecutor is evi-
dentiary in nature and is unpreserved. Accordingly, it
is not reviewable under Williams.
B
The defendant next alleges three acts of impropriety
concerning the prosecutor’s closing argument. First,
the defendant claims that the prosecutor improperly
suggested that ‘‘defendants in child sexual assault cases
have an increased motive to lie for fear of being ‘labeled’
as a sex offender in jail.’’ Second, the defendant argues
that the prosecutor’s remarks improperly appealed to
the emotions and prejudices of the jurors by repeatedly
calling the defendant a ‘‘sex offender.’’ Finally, the
defendant argues that the prosecutor improperly
appealed to the emotions and prejudices of the jurors
by encouraging them to find the defendant guilty
because he was a ‘‘bad person’’ rather than on the basis
of the evidence. We conclude that the prosecutor’s
remarks were not improper.
The following additional facts are necessary to our
resolution of these claims. During his closing argument,
the prosecutor explained to the jurors that the case
required them to assess the credibility of all of the
witnesses, and he reviewed the evidence that corrobo-
rated various witnesses’ testimony. Toward the end of
his closing argument, the prosecutor made the follow-
ing remarks:
‘‘But basically, for the sex assault, it comes down to
E.V. and this defendant; so, you’re going to have to
compare their testimonies. Who is more credible?
Okay?
‘‘E.V.: Obedient. Never lied. Honor student. We saw
the way she testified. God-fearing, as he said, as he put
a knife—as she put a knife to her father where she
almost had enough where she put a knife to his—his
throat and said God won’t forgive me if I did it. You
have E.V. and that person.
‘‘Person to person, who’s always promised to change
for years and years and years and never did. Similar to
how he told E.V. after every time he penetrated her, I
would stop. So, you have that person. You also have the
person who would take the moneys—family’s [social
security disability] money for her son—for his son,17
take the mom’s employment money, take rent money,
and spend it all on drugs.
‘‘Also, [you] have a person impairing them, a person
who continually beat [K.V.] for years—approximately
seven years with his fists, his hands, his boots; hit her
about the face, arms, legs, ribs, and stomach. More or
less a person who never had a job. More or less a person
who, for some reason—and I submit to you the reason
was to be alone with her so she could sexually assault
her—so he could sexually assault her—would keep her
home from school; a person who lied to housing; who
left [M.V.] with a $7000 bill; and also, a person who will
be labeled a sex offender. So, with that said, ladies and
gentlemen, I ask you: Who has the motive there to tell
the truth?’’
Defense counsel then addressed the jury and stated
that the evidence ‘‘should actually probably not be
reviewed’’ as it related to the defendant’s testimony
concerning the risk of injury to a child offenses charged
in counts nine and ten of the information. He argued
that while the defendant admitted to using crack, taking
his family’s money, and ‘‘making his family’s life hell,’’
he was not admitting to sexually assaulting E.V. He
urged the jury to focus on the credibility of the state’s
witnesses as it related to the sexual abuse offenses
charged in counts one through eight of the information.
In particular, he argued that E.V. had a motive to lie
about being sexually abused by the defendant to protect
herself and her sister from the defendant’s physical
abuse.18
The prosecutor then began his rebuttal as follows:
‘‘Motivation, I mean, no father wants to admit he sexu-
ally assaulted his daughter between the ages of nine
and sixteen. Let’s face it, ladies and gentlemen, that’s
the motivation. You don’t want to be labeled as a sex
offender, okay?’’
As the alleged impropriety occurred during closing
argument, we set forth the applicable legal principles.
‘‘[P]rosecutorial [impropriety] of a constitutional mag-
nitude can occur in the course of closing arguments.
. . . [B]ecause closing arguments often have a rough
and tumble quality about them, some leeway must be
afforded to the advocates in offering arguments to the
jury in final argument. [I]n addressing the jury, [c]ounsel
must be allowed a generous latitude in argument, as
the limits of legitimate argument and fair comment can-
not be determined precisely by rule and line, and some-
thing must be allowed for the zeal of counsel in the
heat of argument. . . . Nevertheless, [w]hile a prose-
cutor may argue the state’s case forcefully, such argu-
ment must be fair and based upon the facts in evidence
and the reasonable inferences to be drawn therefrom.’’
(Citation omitted; internal quotation marks omitted.)
State v. Necaise, 97 Conn. App. 214, 229–30, 904 A.2d
245, cert. denied, 280 Conn. 942, 912 A.2d 478 (2006).
1
We first examine whether the prosecutor improperly
argued that the defendant had a motive to lie to avoid
being labeled a sex offender. Again, ‘‘[i]t is not improper
for a prosecutor to remark on the motives that a witness
may have to lie.’’ State v. Thompson, 266 Conn. 440,
466, 832 A.2d 626 (2003); see also State v. Ancona, 270
Conn. 568, 607, 854 A.2d 718 (2004) (‘‘[i]t is permissible
for a prosecutor to explain [in closing argument] that
a witness either has or does not have a motive to lie’’),
cert. denied, 543 U.S. 1055, 125 S. Ct. 921, 160 L. Ed.
2d 780 (2005). Nor is it improper for a prosecutor to
suggest that the defendant, in particular, has a motive to
lie so long as that motive is based on the ‘‘ascertainable
motives of the witnesses’’ rather than the prosecutor’s
personal opinion. State v. Stevenson, 269 Conn. 563,
585, 849 A.2d 626 (2004); see also State v. Fauci, supra,
282 Conn. 39–40 (‘‘in a case that essentially reduces
to which of two conflicting stories is true, it may be
reasonable to infer, and thus to argue, that one of the
two sides is lying,’’ particularly where the argument
only ‘‘underscored an inference that the jury could have
drawn entirely on its own, based on the evidence pre-
sented’’ [internal quotation marks omitted]).
In this case, the prosecutor’s remark that the defen-
dant had a motive to lie to avoid being labeled a sex
offender simply underscored an inference that the jury
could have readily drawn on its own in light of the
charges and the evidence presented at trial. Accord-
ingly, the remark was not improper.
2
Next, we examine whether the prosecutor improperly
appealed to the emotions and passions of the jury ‘‘by
attaching the inflammatory label of child sex offender
to him’’ and by attempting to persuade the jury to find
the defendant guilty because he was a ‘‘bad person,’’
rather than on the evidence presented. We conclude
that the prosecutor did not improperly appeal to the
emotions and passions of the jury.
‘‘We begin with the well established proposition that
[a] prosecutor may not appeal to the emotions, passions
and prejudices of the jurors. . . . When the prosecutor
appeals to emotions, he invites the jury to decide the
case, not according to a rational appraisal of the evi-
dence, but on the basis of powerful and irrelevant fac-
tors which are likely to skew that appraisal.’’ (Internal
quotation marks omitted.) State v. Ceballos, 266 Conn.
364, 394, 832 A.2d 14 (2003).
‘‘We have held, however, that [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 differentiate between argument on the
evidence and attempts to persuade them to draw infer-
ences in the state’s favor, on one hand, and improper
unsworn testimony, with the suggestion of secret
knowledge, on the other hand.’’ (Internal quotation
marks omitted.) State v. Fauci, supra, 282 Conn. 36.
Similarly, ‘‘[t]he state’s attorney should not be put in
the rhetorical straitjacket of always using the passive
voice, or continually 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.) State v. Stevenson, supra, 269 Conn. 583–84.
Turning first to the prosecutor’s use of the phrase
‘‘sex offender,’’ we conclude that this remark was not
improper. Contrary to what the defendant suggests,
the prosecutor did not label the defendant as a ‘‘sex
offender’’ during his remarks; instead, he argued that
the defendant had a motive to lie to avoid being labeled
a sex offender upon conviction, and that remark was a
permissible commentary. See State v. Stevenson, supra,
269 Conn. 585 n.15 (remark that ‘‘[t]he defendant has
everything to gain if he lies on the stand. After all, it is
he [who will] be punished in this case if he is found
guilty’’ was permissible commentary on the defendant’s
motive to lie).
Next, the defendant argues that by reviewing the evi-
dence that he took the family’s money for drugs, physi-
cally abused K.V., had an insubstantial employment
history and lied to housing authorities, the prosecutor
encouraged the jury to find the defendant guilty of the
sex offenses because he was a bad person, rather than
on the evidence presented. The state responds that the
prosecutor was not attempting to inflame the passions
of the jury, but rather the prosecutor was permissibly
recalling the undisputed evidence presented at trial
about the defendant’s character to assist the jurors’
assessment of the defendant’s credibility. We agree with
the state.
Again, the critical issue relative to the claimed impro-
priety is whether the disputed remarks encouraged the
jury to find the defendant guilty on the basis of emotion,
rather than on a rational appraisal of the trial evidence,
not simply whether the remarks might have painted a
negative portrait of the defendant’s character. Here, the
prosecutor never suggested to the jury that because the
evidence showed that the defendant was a bad person,
he must have sexually assaulted his daughter. Instead,
and just prior to the disputed remarks, the prosecutor
acknowledged that the sexual assault charges boiled
down to a credibility assessment of E.V. and the defen-
dant. The prosecutor then proceeded to review, in a
straightforward manner, the undisputed evidence pre-
sented at trial concerning both E.V.’s and the defen-
dant’s character. See State v. Camacho, 282 Conn. 328,
377, 924 A.2d 99 (2007) (‘‘[a]s a general matter a prosecu-
tor may use any evidence properly admitted at trial’’),
cert. denied, 552 U.S. 956, 128 S. Ct. 388, 169 L. Ed. 2d
273 (2007).
Notably, the disputed remarks were based not only
on the testimony of the state’s witnesses, but also the
defendant’s own admissions at trial. During his testi-
mony, the defendant admitted that he would take his
wife’s income and his son’s disability benefits to pur-
chase not only cocaine but also to purchase pornogra-
phy and alcohol for himself.19 The defendant
acknowledged that during the time in question he
worked only part-time and was eventually fired due to
his poor performance. The defendant admitted that he
lied on multiple occasions to the housing authority
about the family’s income to secure rent at a reduced
rate under Section 8, and he testified that, on one occa-
sion, when M.V. disclosed to the housing authority their
actual income, the family was charged approximately
$7000 for unpaid rent.20 Finally, the defendant testified
extensively not only about the fact that he continuously
physically abused K.V., but also the manner in which
he assaulted her.21
Compared to other prosecutorial remarks our
Supreme Court has found to be improper, the prosecu-
tor’s remarks in cataloguing the evidence in this case
were of a dispassionate nature.22 The prosecutor did
not employ any crude phrases or inflammatory lan-
guage. The only fact he lingered on was the physical
abuse of K.V., which served as a basis for the criminality
charged in counts nine and ten of the information.23
We conclude therefore that the prosecutor did not
improperly appeal to the emotions and passions of the
jury during closing argument.24
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to use the defendant’s full name or to identify the victims or others through
whom the victims’ identities may be ascertained. See General Statutes § 54-
86e. We therefore refer to the defendant as Elias V. and to the victims by
their initials.
1
For example, the defendant’s sexual abuse of E.V. began with his touch-
ing and rubbing her vagina over her clothing. Later, the defendant would
force E.V. to perform oral sex or masturbate him while watching pornogra-
phy or viewing pornographic magazines.
2
E.V. and K.V.’s brother has a physical disability and is wheelchair-bound.
3
On other occasions when the defendant left visible marks on K.V., he
insisted that she stay home from school until the marks were less apparent.
4
See State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), as modified
by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).
5
The record is unclear as to the exact date that the juror was excused.
On February 3, 2014, the first day of trial, the court began the proceeding
by informing counsel that ‘‘during the course of last week, one of the jurors
called indicating that she had a—was diagnosed with a medical condition
and she could not take part [in] this process. So, the court unilaterally
excused her; so, we will need to pick an alternate to replace her.’’
6
Although the defendant also asserts a due process violation under article
first, § 8, of the Connecticut constitution, because he has not provided an
independent analysis of his due process claim under the state constitution,
we limit our consideration to the dictates of the federal constitution. See
State v. Arthur H., 288 Conn. 582, 602, 953 A.2d 630 (2008).
The defendant also argues that the court violated his sixth amendment
right to a public trial by dismissing the juror outside the courtroom during
a break in the proceedings. The record, however, reflects that there was
neither a break in the proceedings nor a closure of the courtroom because
the juror was excused by the court during the week before trial. Because
we conclude that the court was not required to notify counsel before excus-
ing the juror and because the court memorialized the circumstances sur-
rounding the juror’s excusal on the record, we reject the defendant’s claim
that his right to a public trial has been implicated.
7
Although the defendant initially argued in his briefs before this court
that he was entitled to a hearing and voir dire of the juror prior to the juror’s
excusal, at oral argument before this court, the defendant clarified that, at
a minimum, his counsel needed to be notified in advance of the juror’s
potential excusal.
8
‘‘Although we overruled Williams in part in State v. Murray, [supra, 254
Conn. 487], [w]e [did] not, however, overrule that part of State v. Williams,
supra, 231 Conn. 243–44, wherein we concluded that the mechanisms for
providing for and dismissing alternate jurors, and the circumstances under
which they may be substituted for regular jurors . . . does not implicate
constitutional rights and are thus for the legislature to decide.’’ (Internal
quotation marks omitted). State v. LaBrec, supra, 270 Conn. 558 n.12.
9
The defendant’s reliance on State v. McNellis, 15 Conn. App. 416, 546
A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988), for the proposition
that the proceedings involving the substitution of an alternate juror for a
regular juror constitutes a critical stage of the proceedings is misplaced. In
McNellis, we stated that ‘‘[t]he voir dire of the jurors concerning possible
jury tampering was a critical stage of the criminal proceeding’’ for the
purposes of the defendant’s right to be present, not that the decision to
replace a regular juror with an alternate was in and of itself a critical stage
of a criminal proceeding. (Emphasis added.) Id., 432.
As the state correctly notes, the processes for addressing allegations of
potential juror impartiality, bias, or prejudice are also different in kind
from those used to address illness. Those allegations squarely implicate a
defendant’s constitutional right to an impartial jury and, at times, require a
court sua sponte to conduct a preliminary inquiry to assure itself that the
defendant’s rights are being preserved. See State v. Brown, 235 Conn. 502,
527–29, 668 A.2d 1288 (1995). Conversely, when a juror reports that he or
she is no longer able to participate in a trial that has not commenced because
of a recent medical diagnosis, the fairness and impartiality of the defendant’s
trial is not implicated.
10
In announcing the excusal of the juror, the court informed the parties
that a juror had called and explained that she ‘‘was diagnosed with a medical
condition and she could not take part [in] this process.’’ Neither the state
nor the defendant inquired further or raised an objection.
11
The defendant cites Apodaca for the proposition that he was entitled
to examine the juror on her medical condition. In Apodaca, on the morning
of the fifth day of trial, a juror called the criminal case flow coordinator to
report flu-like symptoms. State v. Apodaca, supra, 303 Conn. 383. The
resulting discussion on the record about the juror’s illness stemmed from
the participants’ need to resolve whether the juror should be excused or trial
should be delayed. Id., 383–85. Nothing in the Supreme Court’s resolution of
Apodaca suggested that the trial court was required to report the details of
the juror’s illness on the record before excusing her; the court merely needed
to articulate a proper basis for its decision. See id., 386–87.
12
The defendant also urges this court to modify the constancy of accusa-
tion doctrine so that it does not apply to sexual assault cases involving
minors and to limit, or overrule, State v. Troupe, 237 Conn. 284, 677 A.2d
917 (1996) (en banc), in its entirety. We decline to address these claims
other than to note that ‘‘as an intermediate appellate body, we are not at
liberty to discard, modify, reconsider, reevaluate or overrule the precedent
of our Supreme Court.’’ DePietro v. Dept. of Public Safety, 126 Conn. App.
414, 422 n.3, 11 A.3d 1149, cert. granted on other grounds, 300 Conn. 932,
17 A.3d 69 (2011) (appeal withdrawn June 26, 2012).
13
On the second day of trial, and after E.V.’s testimony, M.V. testified that
E.V. told her once that ‘‘dad told me that if I didn’t put his penis in my
mouth he was going to penetrate me.’’ On the third day of trial, Rodriguez
testified as follows about her initial interview with E.V.:
‘‘[The Prosecutor]: . . . Did she give you an account of how she had
been sexually assaulted by [the defendant]?
‘‘[The Witness]: She disclosed vaginal and anal penetration. She disclosed
oral sex that she was obligated to do to [the defendant], and she disclosed
positions as sixty-nine.
‘‘[The Prosecutor]: Okay. And did she disclose how long she had been
getting sexually assaulted for?
‘‘[The Witness]: She said that she has been sexually abused since she was
seven, and she told me that between the age of nine and ten, that’s when
he—the penetration started.’’
14
The court instructed the jury concerning the constancy of accusation
testimony as follows:
‘‘The complainant testified here in court before you. You may use her
testimony as evidence and proof of the facts asserted in that testimony, and
give it the weight you find is reasonable.
‘‘The state offered evidence of out-of-court statements made by the com-
plainant to another person that the defendant sexually assaulted her. The
person to whom the state alleges that complaint—that complainant made
those statements to was Gloria Rodriguez.
‘‘Under our law, the testimony of this witness was limited in scope to the
fact and timing of the complainant’s complaint, the time and place of the
alleged sexual assault, and the identity of the alleged perpetrator.
‘‘This evidence is to be considered by you only in determining the weight
and credibility you will give the complainant’s testimony as it pertains to
all charges.
‘‘This evidence of out-of-court statements by the complainant of a sexual
assault against her by the defendant is not to be considered by you to prove
the truth of the matter asserted in the out-of-court statement.
‘‘In determining whether or not the out-of-court statements corroborate
the complainant’s testimony in court, you should consider all of the defen-
dant’s—I’m sorry—you should consider all of the circumstances under which
they were made, and to whom, and whether the statements made to these
persons were or were not consistent with [the] complainant’s testimony
in court.
‘‘To the extent you find what she said outside the courtroom is consistent
with her testimony in court, you may find her testimony in the court to be
corroborated or supported with respect to the fact and timing of her com-
plaint, the time and place of the alleged sexual assault, and the identity of
the alleged perpetrator.
‘‘You may consider any delay by the complaining witness in reporting the
incidents in evaluating the weight and the credibility of the complaining
witness’ testimony.’’
15
The following colloquy occurred during the prosecutor’s cross-examina-
tion of the defendant:
‘‘[The Prosecutor]: Isn’t it ironic, though, you wanted her to go to school
and you kept her home?
‘‘[The Defendant]: Yeah.
‘‘[The Prosecutor]: And you kept her home to sexually assault her, right?
‘‘[The Defendant]: Never.
‘‘[The Prosecutor]: Okay. Because the stakes are high here, right? You’re
on trial for sex assault crimes, correct?
‘‘[The Defendant]: Yes.
‘‘[The Prosecutor]: All right. You’re incarcerated?
‘‘[The Defendant]: Yes.
‘‘[The Prosecutor]: Right. And you don’t want to be labeled as a sex
offender who sexually assaults his younger daughter, right?
‘‘[The Defendant]: That didn’t happen so, no, I don’t want to.
‘‘[The Prosecutor]: Right. And—and if you’re labeled a sex offender in
jail, that’s not good, right?
‘‘[The Defendant]: I suppose so.’’
16
See Anthony A. v. Commissioner of Correction, 159 Conn. App. 226,
240, 122 A.3d 730 (‘‘We can hardly conceive of a state’s action bearing more
stigmatizing consequences than the labeling of a prison inmate as a sex
offender. . . . One need only look to the increasingly popular Megan’s laws,
whereby states require sex offenders to register with law enforcement offi-
cials who are then authorized to release information about the sex offender
to the public, to comprehend the stigmatizing consequences of being labeled
a sex offender.’’ [Internal quotation marks omitted.]), cert. granted on other
grounds, 319 Conn. 934, 125 A.3d 208 (2015); accord State v. Misiorski, 250
Conn. 280, 295, 738 A.2d 595 (1999) (‘‘[c]onstitutional privacy interests are
implicated . . . because . . . [t]he damage to [citizens’] reputations
resulting from [disclosure] stigmatizes them as currently dangerous sex
offenders, can harm their earning capacities, and can cause them to be
objects of derision in the community’’ [internal quotation marks omitted]).
17
The defendant and M.V. received social security disability benefits for
their son’s physical disability. See footnote 2 of this opinion.
18
For example, defense counsel made the following closing argument
concerning E.V.’s motive to lie:
‘‘And there’s K.V. being assaulted and going to school. Well, that’s going
[to] hustle things up. [The department] is involved. [The department] talks
to K.V. [The department] thinks, right, we see the physical assault, but we’re
not liking the kind of looking down and away, not making direct contact,
and that we think something else is up. Well, there was a lot that was up,
even without thinking about whether [or] not there was sex. But that’s what
the social worker assumed; there must be sexual assault too.
‘‘And to the extent the ideas had already begun [to take] the form of, we
cannot stand to have dad around anymore, he needs to go, at that moment,
when the social worker says to E.V. prompts a disclosure, the idea formed:
This will do it. This will do the trick.’’
At the end of his summation, defense counsel returned to that theme,
arguing:
‘‘The question is—the real question here, is, did he sexually assault E.V.,
and he told you he did not.
‘‘So, right, [the prosecutor is] right. Did he believe E.V.? He’s supposed
to look at all the charges individually and consider them individually, but
there’s really no debate if you believe it. If you have some question about
[E.V.’s] motivations for making these allegations, then that’s what I’m trying
to say, you know, I think she had pretty good motivations for making them;
it’s just a question of whether they’re true. If that’s the way you view the
case, then I would respectfully request that you acquit [the defendant] of
counts one through eight. Thank you.’’
19
For example, on cross-examination, the prosecutor, without objection,
engaged in the following colloquy with the defendant:
‘‘[The Prosecutor]: You took all her money, right, from [your wife’s] job?
‘‘[The Defendant]: Yes.
‘‘[The Prosecutor]: Did she say anything then?
‘‘[The Defendant]: She didn’t say anything.
‘‘[The Prosecutor]: Do you know why?
‘‘[The Defendant]: No.
‘‘[The Prosecutor]: She just said, here’s my check, or did you steal it?
‘‘[The Defendant]: I only asked for it.
‘‘[The Prosecutor]: And explain that. How did you ask for it?
‘‘[The Defendant]: If she got a few dollars I can—can have.
‘‘[The Prosecutor]: When you say a few dollars, what do you mean?
‘‘[The Defendant]: Forty, $50.
‘‘[The Prosecutor]: And she wasn’t making any money, right?
‘‘[The Defendant]: Not much, no.
‘‘[The Prosecutor]: You took your son’s [social security disability]
check, right?
‘‘[The Defendant]: On occasions, yes.
‘‘[The Prosecutor]: Why did you take that?
‘‘[The Defendant]: To drug myself.
‘‘[The Prosecutor]: And didn’t your ex-wife say, why you taking all this
money?
‘‘[The Defendant]: Yes.
‘‘[The Prosecutor]: What did you say to her?
‘‘[The Defendant]: I said I—you high, you need the money. I never
answered that, I just need it.
‘‘[The Prosecutor]: You—you never answered it. I don’t under—can you
repeat that?
‘‘[The Defendant]: I say, I never answer when I wanted the money, I just
say and you don’t need it. You don’t think, you know, you just want to keep
getting high.’’
20
E.V. and K.V. testified that the arrearage was $8000, while the defendant
on cross-examination agreed with the prosecutor that the arrearage was
$7000.
21
For example, on cross-examination, the prosecutor, without objection,
engaged in the following colloquy with the defendant:
‘‘[The Prosecutor]: Okay. Does discipline mean hitting [K.V.] physically?
‘‘[The Defendant]: Not supposed to, but yes. That’s what I was doing.
‘‘[The Prosecutor]: Okay. And tell us how you hit her that day?
‘‘[The Defendant]: To be honest, I don’t—I don’t remember. I know hurt
her with my hand. Every part of the body, I don’t remember?
‘‘[The Prosecutor]: You don’t remember?
‘‘[The Defendant]: I don’t remember which part I hit her with.
‘‘[The Prosecutor]: Okay. How many—
‘‘[The Defendant]: But I know I did it.
‘‘[The Prosecutor]: Let me finish my question. How many times did you
hit her in the body that day?
‘‘[The Defendant]: Multiple times.
‘‘[The Prosecutor]: Multiple times?
‘‘[The Defendant]: Yes.
‘‘[The Prosecutor]: In the head?
‘‘[The Defendant]: Yes.
‘‘[The Prosecutor]: You clapped her ears.
‘‘[The Defendant]: Yes.
‘‘[The Prosecutor]: You punched her.
‘‘[The Defendant]: I punched her, yes.
‘‘[The Prosecutor]: You kicked her.
‘‘[The Defendant]: I don’t remember that.
‘‘[The Prosecutor]: You had boots, right?
‘‘[The Defendant]: I wasn’t home.
‘‘[The Prosecutor]: You weren’t home?
‘‘[The Defendant]: I wasn’t home.
‘‘[The Prosecutor]: Okay. Were you wearing boots?
‘‘[The Defendant]: Sneakers.
‘‘[The Prosecutor]: Sneakers?
‘‘[The Defendant]: Yes, sir.
‘‘[The Prosecutor]: Do you own boots?
‘‘[The Defendant]: What’s that?
‘‘[The Prosecutor]: Do you own boots?
‘‘[The Defendant]: Yes.
‘‘[The Prosecutor]: They have steel toe on them?
‘‘[The Defendant]: No.
‘‘[The Prosecutor]: Okay. And then you also pretended that you were
going to throw her down the stairs, right, but you didn’t?
‘‘[The Defendant]: Did I push her?
‘‘[The Prosecutor]: You were going to but then you held back, right?
‘‘[The Defendant]: Yes.
‘‘[The Prosecutor]: Was she crying?
‘‘[The Defendant]: Yes.
‘‘[The Prosecutor]: Screaming?
‘‘[The Defendant]: Yes.
‘‘[The Prosecutor]: What was she saying?
‘‘[The Defendant]: Stop.
‘‘[The Prosecutor]: And you’re beating her so hard she was [huddled] on
the ground, correct?
‘‘[The Defendant]: That happen when I stop.
‘‘[The Prosecutor]: That happened, but she lost her breath; she couldn’t
breathe at one point.
‘‘[The Defendant]: I cannot tell.
‘‘[The Prosecutor]: You cannot tell? You were on crack that day too?
‘‘[The Defendant]: Yes.
‘‘[The Prosecutor]: Okay. What time is this at?
‘‘[The Defendant]: The afternoon.
‘‘[The Prosecutor]: How much—how much crack did you smoke at that
time?
‘‘[The Defendant]: No idea.
‘‘[The Prosecutor]: Okay. And this is not the first time you beat her, right?
‘‘[The Defendant]: No.
‘‘[The Prosecutor]: You beat her on Wethersfield Avenue.
‘‘[The Defendant]: Yes.
‘‘[The Prosecutor]: You beat her on New Donald Street.
‘‘[The Defendant]: Yes.
‘‘[The Prosecutor]: You beat her on Barbour Street.
‘‘[The Defendant]: Yes.
‘‘[The Prosecutor]: Continuously, correct?
‘‘[The Defendant]: Yes.
‘‘[The Prosecutor]: Okay. Kicking?
‘‘[The Defendant]: Yes.
‘‘[The Prosecutor]: Fist?
‘‘[The Defendant]: I never used fist.
‘‘[The Prosecutor]: Oh, you never used your fist. You use your hand?
‘‘[The Defendant]: Open hand.
‘‘[The Prosecutor]: Is it possibly—is it possible that when you swung at
her it might have hit her with [your] fist?
‘‘[The Defendant]: It couldn’t be because I used my open hand.
‘‘[The Prosecutor]: Oh, Okay. Did you kick.
‘‘[The Defendant]: On occasions, yes.
‘‘[The Prosecutor]: In the stomach?
‘‘[The Defendant]: Possible.
‘‘[The Prosecutor]: In the ribs?
‘‘[The Defendant]: Yes.
‘‘[The Prosecutor]: In the head?
‘‘[The Defendant]: Yes.’’
22
See State v. Oehman, 212 Conn. 325, 333, 562 A.2d 493 (1989) (prosecutor
characterized the defendant as a ‘‘ ‘liar,’ ’’ ‘‘ ‘coward,’ ’’ and a ‘‘ ‘spoiled killer
with a gun’ ’’ that ‘‘ ‘has no principles’ ’’); State v. Williams, supra, 204 Conn.
546–47 (prosecutor called defendant, inter alia, ‘‘ ‘child-beater,’ ‘baby-beater’
and ‘infant-thrasher,’ ’’ ‘‘a ‘liar,’ ‘drunken drug user, convicted felon, child
beater,’ ‘stupid,’ ‘savage child beater,’ ‘drunken bum,’ ‘evil man,’ ’’ and
referred to principal defense witness as ‘‘ ‘liar,’ ’’ ‘‘ ‘stupid,’ ’’ an ‘‘ ‘evil
woman,’ and an ‘evil, terrible woman’ ’’); State v. Couture, 194 Conn. 530, 561,
482 A.2d 300 (1984) (prosecutor, reading from a prepared text, denounced the
defendants as ‘‘ ‘murderous fiends,’ ‘rats,’ ‘utterly merciless killers,’ and
‘inhumane, unfeeling and reprehensible creatures’ ’’), cert. denied, 469 U.S.
1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985).
23
Both counts charged the defendant with risk of injury to a child by
exposing E.V., inter alia, to his physical abuse of K.V.
24
Having concluded that the defendant’s claims do not constitute prosecu-
torial impropriety, we need not address the factors set forth in State v.
Williams, supra, 204 Conn. 540, to determine whether the defendant was
deprived of his right to a fair trial as a result of prosecutorial impropriety.