State v. Morice W.

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STATE OF CONNECTICUT v. MORICE W.*
(AC 38776)
Sheldon, Keller and Elgo, Js.
Syllabus
Convicted of the crimes of risk of injury to a child and assault in the third
degree in connection with serious physical injuries that were sustained
by his infant daughter, the defendant appealed to this court. The victim
had suffered six different fractures at different times in the first four
months of her life. The defendant and the victim’s mother, both of whom
denied having any knowledge of the cause of the victim’s injuries, were
tried together before a jury, which found the mother not guilty. The
defendant claimed that he was denied his due process right to a fair
trial when the prosecutor appealed to the jurors’ sympathy for the victim
when she asked the jurors during closing argument to consider how
much pain the victim had suffered in the first four months of her life
and commented that, during voir dire, a member of the venire panel
from which the jury had been chosen had described the victim as voice-
less. Held:
1. The prosecutor’s remarks about the victim’s pain were not improper;
the prosecutor’s references to the victim’s pain were supported by the
evidence, and the remarks supported the state’s theory that the defen-
dant had notice of the victim’s injuries and urged the jury to draw the
permissible inference that he knew or should have known that the
victim was frequently in pain and had exhibited pain, and because the
prosecutor properly invited the jury to draw appropriate inferences on
a material issue in the case, there was no need to consider whether the
remarks deprived the defendant of his due process right to a fair trial.
2. The defendant was not deprived of a fair trial as a result of the prosecutor’s
remark that an unidentified venireperson had described the victim as
voiceless; although the prosecutor improperly relied on nonrecord evi-
dence when she invoked the reaction of a venireperson to the victim’s
plight, the prosecutor’s remark, when viewed in the context of the entire
trial, was isolated and not severe, the defendant did not object at the
time of the prosecutor’s argument or seek a curative instruction from
the trial court, the court’s general instructions that the jury must not
decide the case on the basis of sympathy or emotion were sufficient to
cure any harm, the remark was not central to the critical issues in the
case, and the state’s case was strong.
Argued February 13—officially released June 26, 2018
Procedural History
Substitute information charging the defendant with
the crimes of risk of injury to a child, assault in the
third degree and reckless endangerment in the first
degree, brought to the Superior Court in the judicial
district of Fairfield, geographical area number two, and
tried to the jury before Kahn, J.; verdict and judgment
of guilty of risk of injury to a child and assault in the
third degree, from which the defendant appealed to this
court. Affirmed.
James P. Sexton, assigned counsel, with whom were
Megan L. Wade, assigned counsel, and, on the brief,
Marina L. Green, assigned counsel, Michael S. Taylor,
assigned counsel, Matthew C. Eagen, assigned counsel,
and Emily Graner Sexton, assigned counsel, for the
appellant (defendant).
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, were John C. Smriga, state’s attor-
ney, and Margaret E. Kelley, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
SHELDON, J. The defendant, Morice W., appeals from
the judgment of conviction, rendered against him after
a jury trial, on charges of risk of injury to a child in
violation of General Statutes § 53-21 (a) (1)1 and assault
in the third degree in violation of General Statutes § 53a-
61 (a) (2).2 On appeal, the defendant claims that he was
deprived of a fair trial on those charges due to improper
remarks by the prosecutor in her rebuttal closing argu-
ment. Although we agree that one of the prosecutor’s
challenged remarks was improper, we do not conclude
that that remark deprived the defendant of a fair trial.
We therefore affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. On the morning of December 14, 2012, the defen-
dant’s mother took the victim, the defendant’s four and
one-half month old daughter, to her house. The defen-
dant’s mother customarily watched the victim while the
defendant and the victim’s mother were at work. While
she was changing the victim’s diaper, the defendant’s
mother noticed that the victim’s leg was swollen and
appeared to be causing her pain. She thus called the
defendant at work to inform him of what she had
observed, to which he responded that he would ‘‘get
[the victim’s] leg checked out . . . .’’
The defendant’s mother returned the victim to the
defendant’s and the victim’s mother’s home sometime
after 4 p.m. Thereafter, at approximately 6 p.m. that
evening, the defendant and the victim’s mother took
the victim to Pediatric Healthcare Associates, where
she was seen by Dr. Richard Freedman. Freedman
noticed that the victim’s right thigh was ‘‘noticeably
swollen,’’ four centimeters larger in circumference than
her left thigh, and that it was very firm to the touch. He
thus instructed the defendant and the victim’s mother to
take her for an X-ray the next morning, which they did.
Dr. Mark Rosovsky, who examined the X-ray, found
that the victim had fractures of her right femur and her
left femur, both around the knee. Because of the types
and the locations of these fractures, Rosovsky believed
that they were nonaccidental in origin, thus causing
him to suspect child abuse. Accordingly, Rosovsky rec-
ommended that the victim undergo a full body X-ray
to detect and document other fractures she might have
suffered. The victim’s mother thus took her to the
Bridgeport Hospital emergency department, where Dr.
Justin Cahill examined her. Upon reviewing the victim’s
X-ray records, Cahill determined that the fracture of
her right femur was not of a common type and could
not be explained by any known injury. He therefore
reported the fracture to the Department of Children
and Families (department). The victim was then trans-
ferred to Yale-New Haven Hospital for a full body X-
ray because the pediatric floor at Bridgeport Hospital
was full.
On December 16, 2012, shortly after midnight, Officer
Paul Cari of the Bridgeport Police Department was dis-
patched to the emergency department of Yale-New
Haven Hospital to respond to a call about a ‘‘child inci-
dent . . . .’’ When he arrived, he found department
social worker Sandra Liquindoli interviewing the vic-
tim’s mother in the victim’s hospital room. Cari and
Liquindoli were approached by members of the hospital
medical staff, who took them outside of the room after
the full body X-ray was taken and informed them that
the victim had ‘‘approximately’’ six different fractures
in various stages of healing. Liquindoli thus conferred
with her supervisor and program manager, who decided
to take the victim into custody for her safety by placing
her under a ninety-six hour hold. See General Statutes
§ 17a-101g.
Cari and Liquindoli returned to the victim’s room
with medical staff and hospital security, and the victim
was separated from her mother. The victim’s mother
was ending a cell phone call as they entered, and she
informed them that she had been speaking with the
defendant. Cari and Liquindoli asked the victim’s
mother how the victim had sustained her present injur-
ies. She stated that during her conversation with the
defendant, he told her that the victim’s injuries were
his fault,3 but she would not respond to their requests
for more information on what she meant by that state-
ment. The victim’s mother stated that she did not know
how the victim had been injured, but she suggested that
the injuries could be related to a shot the victim had
received, or that they might have occurred when the
victim fell from or lunged out of her car seat a week
and one-half to two weeks earlier. The victim’s mother
stated that the victim had fallen in this way on two
occasions, both times when her car seat was on a car-
peted floor.
After interviewing the victim’s mother, Cari and
Liquindoli drove to Bridgeport Hospital, where the
defendant was working that evening, to interview him.
When they initially questioned him about the cause of
the victim’s injuries, he stated that he had no idea how
she had been injured. Thereafter, however, when they
informed him that the hospital had found that the victim
had several different fractures, his story began to
change. First, he told the investigators that he thought
that the swelling of the victim’s thigh had been caused
by vaccinations she had been given on November 21,
2012. Then he told them that there had been ‘‘a few
times’’ when he had rolled over on the victim while
they were sleeping together in the same bed. After mak-
ing that statement, the defendant expressly admitted
that he had caused the victim’s injuries, and stated that
he ‘‘should just go to jail . . . .’’ The defendant was
not arrested that evening, however.
On the evening of the following day, December 17,
2012, department investigative social worker Miguel
Teixeira met with the defendant and the victim’s
mother. In that meeting, when Teixeira asked them
once again how the victim had been injured, they told
him of a time in October, 2012, after the victim had
become very congested and stopped breathing, when
the defendant had performed cardiopulmonary resusci-
tation on her. They also suggested that the victim might
have been injured when she underwent a lumbar punc-
ture,4 when she fell out of a car seat, or when the
defendant rolled over on her in bed.
Several months later, while the victim was still in the
department’s custody, the department contracted with
counselor Gary Vertula and social worker Cindy Perjon
to perform an assessment ‘‘regarding reunification’’5 of
the defendant and the victim’s mother with the victim.
In the course of that assessment, which was performed
in late April and early May, 2013, the defendant and the
victim’s mother suggested once again that the victim
might have suffered her injuries when she underwent
a lumbar puncture on August 24, 2012.
Dr. John Leventhal, a pediatrician who works at Yale
Medical School and serves as the director of the child
abuse program at Yale-New Haven Children’s Hospital,
was later called in to determine if the victim’s fractures
had resulted from acts of abuse. Leventhal first con-
firmed, upon reviewing the victim’s full body X-rays
from Yale-New Haven Hospital, that the victim had six
fractures: one of each of her upper arms, near the shoul-
der; one of each of her femurs, near the knee; and
two of her ribs, both under her left arm.6 Leventhal
concluded that the two rib fractures, which were a
couple of weeks old at the time the X-rays were taken,
had most likely been caused by acts of abuse, particu-
larly the squeezing of the victim’s chest from front to
back. The fractures of the victim’s arms and legs were
all of a type known as ‘‘corner’’ or ‘‘bucket handle’’
fractures because of their distinctive appearance. Such
fractures, which are caused by the forceful jerking of
the limbs, are uncommon in children. They are believed
to link very strongly with a diagnosis of child abuse.
In Leventhal’s opinion, none of the victim’s limb or rib
fractures could have been caused by falling from a car
seat onto a carpeted floor or being rolled over on by
an adult while in bed. Nor, in his opinion, could any
such injury have been caused by a lumbar puncture.
Finally, Leventhal ordered that tests be conducted on
the victim to evaluate the structural integrity of her
bones, more particularly by determining if she had rick-
ets7 or a genetic condition commonly known as brittle
bone disease,8 either of which might have made her
prone to suffering bone fractures without abuse. The
tests revealed that there was nothing wrong with the
victim’s bones that would have made her susceptible
to sustaining fractures without abuse. On the basis of
his knowledge and experience, Leventhal determined
that all six of the victim’s fractures had resulted from
acts of abuse.
Dr. Amanda Rodriguez-Murphy, the pediatrician who
had administered vaccines to the victim on November
21, 2012, testified that, according to her medical
records, the victim had suffered from subconjunctival
hemorrhages, or visible blood under the whites of her
eyes, when she was approximately one month old. Lev-
enthal testified that subconjunctival hemorrhages are
‘‘sentinel[s]’’ for child abuse.
The defendant was arrested on May 7, 2013, under a
warrant charging him with risk of injury to a child,
assault in the third degree and reckless endangerment
in the first degree. The victim’s mother was arrested
on that same day, under a warrant charging her with
risk of injury to a child.
A joint trial on all charges against the defendant and
the victim’s mother began on May 4, 2015. The state
presented evidence at trial that included all of the vic-
tim’s above-referenced medical records as well as testi-
mony from several witnesses, including the expert
medical professionals who had examined, cared for
and treated her in the relevant time frame,9 department
employees and law enforcement personnel who had
investigated her injuries,10 and the victim’s grandmother
and stepgrandmother. At the end of the state’s case,
the defendant and the victim’s mother both moved
unsuccessfully for a judgment of acquittal on all
charges.
Both the defendant and the victim’s mother then testi-
fied in their own defense. The defendant testified that,
although he remembered telling Officer Cari that he
may have rolled over on the victim, he could not think
of anything that would have caused the victim’s injuries.
He denied that either he or the victim’s mother had
caused the injuries.11 The victim’s mother testified that
she did not believe that the defendant would ever hurt
the victim, that she had never had reason to question
the victim’s safety when the victim was with the defen-
dant, and that she herself had never knowingly placed
or allowed the victim to remain in a harmful situation.
The jury thereafter found the defendant guilty of risk
of injury to a child and assault in the third degree, but
not guilty of reckless endangerment in the first degree.
The jury found the victim’s mother not guilty of risk of
injury to a child. On June 24, 2015, the court sentenced
the defendant on his conviction of risk of injury to a
child to a term of ten years imprisonment, execution
suspended after eight years, with five years probation,
and on his conviction of assault in the third degree
to a concurrent term of one year imprisonment. This
appeal followed.
The sole issue on appeal is whether the defendant
was denied his due process right to a fair trial by one or
more alleged improprieties in the prosecutor’s rebuttal
closing argument. The defendant bases his claim on two
alleged improprieties near the end of the prosecutor’s
rebuttal closing argument. Then, after reviewing and
challenging each of the defendant’s and the victim’s
mother’s several exculpatory suggestions as to how the
victim may have suffered her injuries by accidental
means, without notice to either of them of the victim’s
need for protection, care and treatment, the prosecutor
addressed the jury as follows: ‘‘But I ask you, ladies
and gentlemen, how much pain did [the victim] suffer
in her short, short four and a half months of life at
that point. How much pain. And when the state is
selecting—when we were in the process of jury selec-
tion, obviously you recall you didn’t know anything
about the case. . . . But the attorneys; the defense
attorneys and the state were permitted to tell you that
this involved a four month old, injuries to a four month
old. And what struck me back then—and I don’t know
whether or not it’s one of you, or whether or not it was
another venireperson, but someone said during voir
dire, but a four month old is voiceless, and she is. [The
victim] was voiceless.’’ (Emphasis added.)
The defendant claims that these remarks, which were
assertedly unrelated to any issue the jury had to decide
in the course of its deliberations, were improper, and
thus violated his due process right to a fair trial, in two
ways. First, he claims that the prosecutor violated the
‘‘golden rule’’ by asking the jurors to consider how much
pain the victim had suffered in the first four months of
her life. Second, he claims that the prosecutor improp-
erly appealed to the jury’s sympathy on the basis of
nonrecord facts by remarking that a member of the jury
panel from which jurors had been chosen had described
the victim as ‘‘voiceless’’ during voir dire. The state
responds that the challenged remarks were not
improper, but argues that even if they were improper,
they did not so prejudice the defendant as to violate
his due process right to a fair trial. We agree with the
state that the prosecutor’s references to the victim’s
pain were not improper. We further conclude that,
although there was impropriety in the prosecutor’s attri-
bution to a venireperson of the description of the victim
as ‘‘voiceless,’’ that impropriety did not violate the
defendant’s right to a fair trial under the multifactor
analysis prescribed by our Supreme Court in State v.
Williams, 204 Conn. 523, 539–40, 529 A.2d 653 (1987).
We begin by setting forth the applicable law govern-
ing our review of claims of prosecutorial impropriety.
‘‘In analyzing claims of prosecutorial impropriety, we
engage in a two step analytical process. . . . The two
steps are separate and distinct. . . . We first examine
whether prosecutorial impropriety occurred. . . . Sec-
ond, if an impropriety exists, we then examine whether
it deprived the defendant of his due process right to
a fair trial. . . . In other words, an impropriety is an
impropriety, regardless of its ultimate effect on the fair-
ness of the trial. Whether that impropriety was harmful
and thus caused or contributed to a due process viola-
tion involves a separate and distinct inquiry. . . .
‘‘Prosecutorial impropriety can occur . . . in the
course of closing or rebuttal argument. . . . In the
event that such impropriety does occur, it warrants the
remedy of a new trial only when the defendant can show
that the impropriety was so egregious that it served to
deny him his constitutional right to a fair trial. . . . To
prove prosecutorial [impropriety], the defendant must
demonstrate substantial prejudice. . . . In order to
demonstrate this, the defendant must establish that the
trial as a whole was fundamentally unfair and that the
[impropriety] so infected the trial with unfairness as to
make the conviction a denial of due process. . . . In
weighing the significance of an instance of prosecu-
torial impropriety, a reviewing court must consider the
entire context of the trial, and [t]he question of whether
the defendant has been prejudiced by prosecutorial
[impropriety] . . . depends on whether there is a rea-
sonable likelihood that the jury’s verdict would have
been different absent the sum total of the improprie-
ties.’’ (Citations omitted; internal quotation marks omit-
ted.) State v. Long, 293 Conn. 31, 36–37, 975 A.2d 660
(2009).12 With these principles in mind, we turn to an
examination of the remarks challenged in this case.
I
We first examine the propriety of the prosecutor’s
rhetorical inquiry to the jury, near the end of her rebuttal
closing argument: ‘‘But I ask you, ladies and gentlemen,
how much pain did [the victim] suffer in her short, short
four and a half months of life at that point. How much
pain.’’ The defendant claims that this remark was an
improper golden rule argument, presented solely as an
emotional appeal to evoke the jurors’ sympathy for the
infant victim rather than to support a rational inference
as to any fact or issue they might have to decide in the
course of their deliberations. Accordingly, he argues,
the prosecutor’s argument gave rise to an undue risk
that the jurors would find him guilty on the basis of
their understandable sympathy for the victim rather
than a clear-eyed assessment of the evidence claimed
to establish his guilt. We disagree.
‘‘A golden rule argument is one that urges jurors to
put themselves in a particular party’s place . . . or into
a particular party’s shoes. . . . Such arguments are
improper because they encourage the jury to depart
from neutrality and to decide the case on the basis of
personal interest and bias rather than on the evidence.
. . . They have also been equated to a request for sym-
pathy. . . . [In State v. Bell, 283 Conn. 748, 771, 931
A.2d 198 (2007), our Supreme Court] noted that golden
rule claims arise in the criminal context when the prose-
cutor ask[s] the jury to put itself in the place of the
victim, the victim’s family, or a potential victim of the
defendant. . . . The danger of these types of argu-
ments lies in their [tendency] to pressure the jury to
decide the issue of guilt or innocence on considerations
apart from the evidence of the defendant’s culpability.’’
(Citations omitted; internal quotation marks omitted.)
State v. Stephen J. R., 309 Conn. 586, 605–606, 72 A.3d
379 (2013); see also State v. Ciullo, 314 Conn. 28, 56,
100 A.3d 779 (2014); State v. Campbell, 141 Conn. App.
55, 63, 60 A.3d 967, cert. denied, 308 Conn. 933, 64 A.3d
331 (2013).
‘‘The prosecutor, however, is not barred from com-
menting on the evidence presented at trial or urging
the jury to draw reasonable inferences from the evi-
dence that support the state’s theory of the case, includ-
ing the defendant’s guilt. It is not improper for the
prosecutor to comment [on] the evidence presented at
trial and to argue the inferences that the [jury] might
draw therefrom . . . . We must give the jury the credit
of being able to differentiate between argument on the
evidence and attempts to persuade [it] 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. The [prosecutor] should
not be put in the rhetorical straitjacket of always using
the passive voice, or continually emphasizing that [she]
is simply saying I submit to you that this is what the
evidence shows, or the like.’’ (Internal quotation marks
omitted.) State v. Long, supra, 293 Conn. 38–39.
Our analysis of whether the prosecutor here
employed an improper golden rule argument causes us
to examine the record for connections between the
prosecutor’s references to the amount of pain that the
victim suffered and reasonable inferences the jury could
draw from the evidence as to material facts. In making
this determination, we look both to the evidence pre-
sented at trial and the closing arguments made by the
state, the defendant and the victim’s mother.
On appeal, the state argues that the prosecutor’s allu-
sion to the victim’s pain in the first four months of her
life was not improper because the state had presented
both direct and circumstantial evidence that the victim
had suffered pain in that time frame, and such pain was
relevant to an essential element of assault in the third
degree, to wit: that the victim had suffered a serious
physical injury. The defendant responds by noting that
pain is not an essential element of assault in the third
degree under § 53a-61 (a) (2) because, under our
Supreme Court’s decision in State v. Milum, 197 Conn.
602, 619, 500 A.2d 555 (1985), pain is not a concept
embedded in the statutory definition of serious physical
injury. Although we are not persuaded by this aspect
of the state’s argument on appeal,13 our review of the
record leads us to conclude that the prosecutor’s
remarks were not improper because the victim’s pain
was relevant to the theory of the state’s case against
both defendants on the charge of risk of injury to a
child, to wit: that the defendants wilfully or unlawfully
caused or permitted the victim to be placed in such a
situation that her life or limb was endangered or her
health was endangered, or they did acts likely to impair
the health of the victim.
The references in the prosecutor’s rebuttal to the
victim’s pain were not only supported by the evidence,
but addressed the arguments of the defendant and the
victim’s mother that the victim had suffered her injuries
without notice to them, because they supported the
state’s theory that the defendants did indeed have such
notice. At trial, both the defendant and the victim’s
mother denied having any knowledge of the cause of
the victim’s injuries. The defendant acknowledged that
he had told Cari and Liquindoli that he had rolled over
on the victim multiple times and that her injuries were
his fault. He testified, however, that he had felt pres-
sured by Liquindoli’s questioning to say that he some-
how had hurt the victim. He also testified that he had
never seen the victim’s mother do anything that might
have caused the victim’s injuries and that he had not
caused those injuries himself. During closing argument,
the defendant’s counsel emphasized that there was no
evidence that the defendant had caused the victim’s
injuries, and that there was a ‘‘lack of testimony from
any witness that [the victim] was placed in any kind of
situation that was even questionable, much less wilfully
and deliberately putting her at risk.’’
The victim’s mother, in turn, testified that she recog-
nized the victim’s crying as a sign of pain, and that
‘‘when [the victim] did cry, she was screaming.’’ How-
ever, she denied ever having any reason to question the
victim’s well-being. In her closing argument, counsel
for the victim’s mother argued that her client ‘‘did not
and could not have known that [the victim] was sub-
jected to some sort of mechanism or act that brought
about some very serious injuries.’’ The mother’s counsel
further argued that ‘‘until [the victim] was hospitalized
. . . on December 15, [2012], there was not one trou-
bling or discerning event that triggered [the victim’s
pediatrician’s] responsibility to report any concerns to
the authorities’’ and that ‘‘if [the doctor] as a medical
expert could not determine there was something seri-
ously wrong with [the victim],’’ the victim’s mother cer-
tainly could not have known something was wrong.
The prosecutor’s rebuttal argument referencing the
victim’s pain impliedly urged the jury to reject the defen-
dants’ testimony and arguments that they had no notice
of the victim’s serious injuries. Prior to her challenged
remarks, the prosecutor noted that the victim’s mother
was presumably with the victim often and thus would
have known when the victim cried or exhibited pain.
She also referred the jury to the testimony of the defen-
dant’s mother, who had seen the victim’s swollen leg
and realized at once that it was causing her pain. By
making those arguments, together with her challenged
rhetorical inquiry as to how much pain the victim must
have suffered in her short life, the prosecutor effectively
urged the jury to draw the permissible inference that
the defendant and the victim’s mother both knew or
should have known that the victim—who had exhibited
obvious pain when her right femur was fractured, and
had suffered six different fractures at different times
in her life—was frequently in, and no doubt exhibited,
great pain. Such an inference directly supported one
of the state’s theories of the case against both defen-
dants on the charges of risk of injury to a child. This
court previously has held that ‘‘arguments inviting the
jury to draw reasonable inferences from the evidence
adduced at trial . . . patently are proper.’’ State v.
Dawes, 122 Conn. App. 303, 313–14, 999 A.2d 794, cert.
denied, 298 Conn. 912, 4 A.3d 834 (2010). Because we
conclude that, in referencing the victim’s pain, the pros-
ecutor properly invited the jury to draw appropriate
inferences on a material issue in the case, we need
not consider the second step in our analysis of these
remarks, namely, whether the alleged impropriety
deprived the defendant of his due process right to a
fair trial. See State v. Hickey, 135 Conn. App. 532, 554, 43
A.3d 701 (if impropriety is not identified, then prejudice
need not be considered), cert. denied, 306 Conn. 901,
52 A.3d 728 (2012).
II
We next consider the propriety of the prosecutor’s
remarks attributing a description of the infant victim as
‘‘voiceless’’ to an otherwise unidentified venireperson
in the context of this trial. The defendant claims that
this remark was improper because it personalized an
appeal to the jurors’ sympathy by ‘‘suggesting that one
of their own, a jury member or a member of the venire
panel, had commented that [the victim] was ‘voice-
less.’ ’’ He argues that this emotional appeal was unre-
lated to any facts on which the jury permissibly could
rely in reaching a verdict. The state argues that the
prosecutor’s remark about the victim’s voicelessness
was fair rebuttal because it was made in response to
defense counsel’s comments concerning the lack of
direct evidence to establish when and how the victim
had suffered her injuries. The state contends that the
remark about the victim being ‘‘voiceless’’ noted the
practical impossibility of presenting direct evidence
through the victim due to her age and developmental
limitations. We agree with the state that the prosecu-
tor’s argument concerning the victim’s voicelessness
was proper rebuttal, as it was directly responsive to
the defendant’s argument about the lack of direct evi-
dence of his guilt. We conclude, however, that insofar
as the argument invoked the reaction of another venire-
person to the victim’s plight, it improperly relied on
nonrecord evidence.
‘‘A prosecutor, in fulfilling [her] duties, must confine
[herself] to the evidence in the record. . . . Statements
as to facts that have not been proven amount to
unsworn testimony, which is not the subject of proper
closing argument.’’ (Internal quotation marks omitted.)
State v. Singh, 259 Conn. 693, 717, 793 A.2d 226 (2002).
That a venireperson made such a comment during voir
dire was not in evidence; it was thus improper for the
prosecutor to allude to that comment in her rebuttal
closing argument.Having found that the prosecutor’s
remark alluding to the comments of a venireperson
was improper, we turn to the question of whether that
remark deprived the defendant of a fair trial. The defen-
dant argues that he was substantially prejudiced by the
remark, ‘‘considering the sensitive nature of the case
and the almost certain fact that jurors would instinct-
ively sympathize with an infant . . . .’’ We disagree.
‘‘To determine whether the defendant was deprived
of his due process right to a fair trial, we must determine
whether the sum total of [the prosecutor’s] improprie-
ties rendered the defendant’s [trial] fundamentally
unfair, in violation of his right to due process. . . . The
question of whether the defendant has been prejudiced
by prosecutorial [impropriety], therefore, depends on
whether there is a reasonable likelihood that the jury’s
verdict would have been different absent the sum total
of the improprieties. . . . This inquiry is guided by an
examination of the following factors [set forth in State
v. Williams, supra, 204 Conn. 540]: 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 measures adopted
. . . and the strength of the state’s case.’’ (Internal quo-
tation marks omitted.) State v. Jose G., 102 Conn. App.
748, 766, 929 A.2d 324 (2007), aff’d, 290 Conn. 331, 963
A.2d 42 (2009). ‘‘[The] burden properly lies with the
defendant to prove substantial prejudice.’’ (Internal
quotation marks omitted.) State v. Campbell, supra, 141
Conn. App. 69.
Applying the first Williams factor, we conclude, to
reiterate, that the prosecutor’s impropriety was not
invited by defense counsel. The state argues that
defense counsel invited the prosecutor’s remark that
the victim was voiceless by addressing the circumstan-
tial nature of the evidence and lack of witnesses to the
victim’s abuse. Defense counsel stated, in relevant part:
‘‘[W]hat we don’t know is the how and when these
fractures may have occurred, and the state’s evidence
regarding the how and when is in the form of opinion.
It’s in the form of this is my best estimate, this is my
expert opinion as to how these may have occurred.
There’s no actual witnesses to those events, okay.
There’s no video, there’s no nanny cam like we see on
a lot of the . . . news reports.’’ The state appropriately
argued, in response to this argument, that there was
indeed a witness—the victim herself—but that she was
incapable of testifying. Defense counsel’s statement did
not, however, invite the prosecutor to reference the
comments of a venireperson during voir dire.
Next, we consider the frequency and severity of the
impropriety under the second and third Williams fac-
tors. This remark was made on one occasion only, as
an isolated appeal to the emotions of the jurors that
was based on the observations of a fellow venireperson.
See State v. Quint, 97 Conn. App. 72, 93, 904 A.2d 216
(concluding impropriety had not been severe where ‘‘it
was confined to only a portion of the closing argu-
ment’’), cert. denied, 280 Conn. 924, 908 A.2d 1089
(2006). The content of the remark was not objectionable
in substance, for it was supported by the evidence and
responded directly to defense counsel’s arguments. In
determining the severity of improper remarks, more-
over, our Supreme Court has noted that it considers
it ‘‘highly significant [when] defense counsel fail[s] to
object to any of the improper remarks, request curative
instructions, or move for a mistrial.’’ (Internal quotation
marks omitted.) State v. Luster, 279 Conn. 414, 443,
902 A.2d 636 (2006). Only misconduct that is ‘‘blatantly
egregious or inexcusable’’ will be severe enough to man-
date reversal. Id., citing State v. Thompson, 266 Conn.
440, 480, 832 A.2d 626 (2003). Here, defense counsel
did not object to the prosecutor’s remark about the
venireperson’s comments, much less ask for a curative
instruction as to the remark or move for a mistrial.
Following our Supreme Court’s reasoning in Thompson,
defense counsel’s lack of objection to the challenged
remark demonstrates that it was not so severe as to
prompt him to move for a mistrial instead of allowing
the case to continue on to verdict, or thus to mandate
reversal of his conviction and the ordering of a new
trial after that verdict was returned.
Turning to the fifth Williams factor, the court took
curative measures that would have prevented the jury
from being unduly swayed by nonrecord facts or
appeals to their emotions. The court first instructed the
jury, in general terms: ‘‘[I]t is improper for any counsel
to appeal to your emotions . . . .’’ Thereafter it reiter-
ated: ‘‘It is not proper for the attorneys to . . . appeal
to your emotions.’’ The court further instructed the
jurors, more specifically, as follows, that they must not
decide the case on the basis of sympathy: ‘‘In sitting
on this case, there may be time—a time where you
have feelings of sympathy or compassion, which is only
natural. However, in deliberating on this case and in
coming to an ultimate verdict, you must be willing and
able to put aside feelings of sympathy and compassion,
and emotion and judge this case on the evidence you
hear in the courtroom.’’ Thus, although the court did
not specifically mention the prosecutor’s challenged
remark about the comment of a venireperson, it pro-
vided the jury with clear direction to treat the remark
as improper, and thus to ignore it when conducting
their deliberations.
Finally, we turn to the remaining Williams factors,
the centrality of the misconduct to the critical issues
in the case and the strength of the state’s case. The
prosecutor’s reference to a venireperson’s comment
about the victim’s voicelessness was not central to the
most critical issue in this case, which was whether the
defendant caused the victim’s injuries. The strength of
the state’s case also outweighed any possible prejudice
the prosecutor’s inappropriate comment may have
caused. The state presented the victim’s medical
records and extensive expert testimony to establish the
nonaccidental nature of the victim’s injuries, fractures
of her arms, legs and ribs inflicted at different times,
and the abusive conduct that must have caused them.
The state also presented the testimony of multiple wit-
nesses who stated that the defendant had admitted to
causing the victim’s injuries. The strength of the state’s
case thus substantially outweighed any possible preju-
dice arising from the prosecutor’s attribution to a
venireperson of the description of the victim as one
who was voiceless because she could not be heard on
her own behalf.
‘‘In determining whether the defendant was denied
a fair trial [by virtue of the prosecutor’s impropriety]
we must view the prosecutor’s comments in the context
of the entire trial.’’ (Internal quotation marks omitted.)
State v. Angel T., 292 Conn. 262, 287, 973 A.2d 1207
(2009). ‘‘[A] reviewing court must apply the Williams
factors to the entire trial, because there is no way to
determine whether the defendant was deprived of his
right to a fair trial unless the misconduct is viewed in
light of the entire trial.’’ State v. Spencer, 275 Conn.
171, 178, 881 A.2d 209 (2005). Viewing the improper
remark in the context of the entire trial, we conclude
that it did not deprive the defendant of a fair trial.
Although defense counsel did not invite the remark, it
was isolated and not severe. The defendant did not
object to the remark at the time of the prosecutor’s
argument, nor did he seek specific curative instructions
with respect to it. The court’s general instructions that
the jury must not decide the case on the basis of sympa-
thy or emotion instead of properly admitted evidence
were sufficient to cure any harm potentially arising
from the remark. The remark was not central to any
of the critical issues in the case, and the state’s expert-
supported, admission-based case against the defendant
was strong.
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 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.
1
General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who
(1) wilfully or unlawfully causes or permits any child under the age of
sixteen years to be placed in such a situation that the life or limb of such
child is endangered, the health of such child is likely to be injured or the
morals of such child are likely to be impaired, or does any act likely to
impair the health or morals of any such child . . . shall be guilty of . . .
a class C felony . . . .’’
2
General Statutes § 53a-61 (a) provides in relevant part: ‘‘A person is
guilty of assault in the third degree when . . . (2) he recklessly causes
serious physical injury to another person . . . .’’
The jury found the defendant not guilty of reckless endangerment in the
first degree in violation of General Statutes § 53a-63.
3
At trial, she testified that he had told her, ‘‘[t]his is my fault, I’m gonna
take the blame.’’
4
Dr. John Leventhal testified that when the victim was less than four
weeks old, she presented to the emergency department with a fever, and that
it is standard procedure to administer a lumbar puncture to such patients.
Dr. Freedman testified that the purpose of a lumbar puncture is to look
for infections.
5
Prior to the start of trial, the defendant filed a motion in limine to
preclude any testimony relating to a previous trial terminating his parental
rights with respect to the victim. The state made it clear that it did not plan
to elicit such testimony, and the court did not rule on the motion at that time
but stated that it would deal with any such issues as they arose during trial.
6
Leventhal initially testified that the rib fractures were under the victim’s
right arm. He later corrected himself on the basis of the victim’s medical
records.
7
Leventhal testified that rickets is a vitamin D deficiency that can cause
fragility in bones.
8
Leventhal testified that brittle bone disease, the scientific name for which
is osteogenesis imperfecta, results in bone fragility and causes bones to
have a tendency to fracture.
9
These experts included Drs. Melinda Sharkey, a pediatric orthopedic
surgeon who treated the victim for her fractures; Freedman; Rodriguez-
Murphy; Cahill; Kenneth Baker, a pediatric radiologist who reviewed the
victim’s X-rays in December, 2012; Leventhal; and Rosovsky.
10
These investigators included Officer Cari and Detective Jessi Pizarro
of the Bridgeport Police Department, Vertula, Perjon and Teixeira.
11
The defendant also presented testimony from Dr. Jennifer Galvin, a
pediatric ophthalmologist who conducted an eye examination on the victim
on December 16, 2012. The examination was conducted in conjunction with
the medical findings of nonaccidental causes of the victim’s fractures. Her
findings were normal in all respects.
12
‘‘Although the defense counsel did not object to the prosecutor’s state-
ments at the time of her summation and rebuttal, we may still review these
claims. [I]n cases involving incidents of prosecutorial [impropriety] that
were not objected to at trial . . . it is unnecessary for the defendant to
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. . . . The object
of the inquiry before a reviewing court in claims involving prosecutorial
[impropriety], therefore, is always and only the fairness of the entire trial,
and not the specific incidents of [impropriety] themselves. Application of
the . . . factors [in State v. Williams, supra, 204 Conn. 540] provides for
such an analysis, and the specific Golding test, therefore, is superfluous.’’
(Citation omitted; internal quotation marks omitted.) State v. Campbell, 141
Conn. App. 55, 60–61 n.3, 60 A.3d 967, cert. denied, 308 Conn. 933, 64 A.3d
331 (2013).
13
A person is guilty of assault in the third degree under § 53a-61 (a) (2)
when he ‘‘recklessly causes serious physical injury to another person . . . .’’
An essential element of that offense is that the defendant recklessly caused
the alleged victim to suffer a serious physical injury. General Statutes
§ 53a-3 (4) defines ‘‘serious physical injury’’ as ‘‘physical injury which creates
a substantial risk of death, or which causes serious disfigurement, serious
impairment of health or serious loss or impairment of the function of any
bodily organ . . . .’’ General Statutes § 53a-3 (3), in turn, defines ‘‘physical
injury’’ as ‘‘impairment of physical condition or pain . . . .’’
Reading the foregoing definitions together, we note that although physical
injury constitutes either pain or impairment of physical condition, each
definition of serious physical injury is defined as an aggravated form of
impairment of physical condition rather than an aggravated form of pain.
Therefore, while evidence of pain may indeed be relevant to proving the
infliction or occurrence of a serious physical injury, pain itself, however
aggravated, does not itself constitute serious physical injury.