State v. Washington

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STATE OF CONNECTICUT v. WILLIAM
HENRY WASHINGTON II
(AC 36037)
Alvord, Keller and Prescott, Js.
Argued December 9, 2014—officially released March 3, 2015
(Appeal from Superior Court, judicial district of
Hartford, Dewey, J.)
Stephanie L. Evans, assigned counsel, for the appel-
lant (defendant).
Jonathan M. Sousa, special deputy assistant state’s
attorney, with whom, on the brief, were Gail P. Hardy,
state’s attorney, and Richard J. Rubino, senior assistant
state’s attorney, for the appellee (state).
Opinion
KELLER, J. The defendant, William Henry Washing-
ton II, appeals from the judgment of conviction, ren-
dered following a jury trial, of sexual assault in the first
degree in violation of General Statutes § 53a-70 (a) (1)
and kidnapping in the first degree in violation of General
Statutes § 53a-92 (a) (2) (A).1 The defendant claims that,
in denying his motion for a new trial, the court improp-
erly rejected his claims that (1) the jury’s verdict was
contrary to the weight of the evidence, (2) the state
deprived him of a fair trial when it withheld exculpatory
information that supported his theory of defense, and
(3) prosecutorial impropriety during closing argument
deprived him of a fair trial. 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.
On July 29, 2010, shortly after 12 a.m., the sixteen year
old female victim2 was walking down Park Street in
Hartford after leaving her boyfriend’s residence. The
defendant quickly approached the victim from behind.
The defendant put one arm around the victim’s neck
and, with his other arm, held a sharp instrument to the
victim’s neck. The defendant warned the victim not to
scream, told her that he would not kill her, and, while
holding her tightly, led her to an abandoned building
that was located nearby on Squire Street.
Once inside the building, at the defendant’s instruc-
tion, the victim removed her clothing. The defendant
began touching the victim’s breasts and, while holding
the victim, inserted a finger into her vagina. At one
point during the encounter, the defendant attempted to
sit on the victim, while she was lying on the floor, and
insert his penis into her vagina. The victim told the
defendant that she just wanted to go home and that
she would do anything he wanted. At that point, the
defendant forced the victim to get on her knees and
perform oral sex on him. The defendant ejaculated in
the victim’s mouth, and the victim spit the ejaculate on
the floor.
After the defendant completed his sex act, he stated
that he had to kill the victim because she had seen his
face, but that he did not want to kill her because she
was ‘‘nice.’’ While the defendant was dressing himself,
the victim, who was naked, ran from the building, shout-
ing for help. Katia Perez, a bystander who was driving
along Park Street, assisted the victim by driving her to
a nearby location where Officer John Cavanna of the
Hartford Police Department was on patrol in a marked
police cruiser. Cavanna provided further assistance to
the victim and transported her to a hospital, where a
sexual assault examination was performed.
After the jury found the defendant guilty of the crimes
with which he stood accused, the defendant filed a
motion for a new trial. Among the grounds asserted in
the motion, the defendant claimed that (1) the verdict
was clearly against the weight of the evidence, (2) the
state failed to disclose material exculpatory information
to the defense that would have supported his defense
of third-party culpability, and (3) the prosecutor mis-
characterized the evidence during closing argument by
stating that there was no evidence that the victim was
a prostitute despite the defendant’s contrary testimony
that, earlier in the evening of her abduction, he allegedly
had paid her to perform fellatio. The court heard argu-
ment on the defendant’s motion on June 21, 2013, and
denied it. This appeal followed. Additional facts will be
set forth as necessary.
Before turning to the claims advanced in the present
appeal, we set forth the standard that governs our
review of the court’s ruling. ‘‘Appellate review of a trial
court’s decision granting or denying a motion for a new
trial must take into account the trial judge’s superior
opportunity to assess the proceedings over which he
or she has personally presided. . . . Thus, [a] motion
for a new trial is addressed to the sound discretion
of the trial court and is not to be granted except on
substantial grounds.’’ (Internal quotation marks omit-
ted.) State v. Smith, 313 Conn. 325, 347–48, 96 A.3d
1238 (2014); see also State v. Sherman, 38 Conn. App.
371, 418, 662 A.2d 767, cert. denied, 235 Conn. 905, 665
A.2d 905 (1995).
I
First, the defendant claims that the court improperly
denied his motion for a new trial because the verdict
was contrary to the weight of the evidence. We disagree.
Among the other evidence presented at trial, the state
presented evidence that, during the police investigation
of the incident, they discovered the victim’s clothing in
an abandoned building on Squire Street. Additionally,
a forensic analysis of semen-rich biological material
that was swabbed from the victim’s mouth during her
sexual assault evaluation reflected that such material
was consistent with the defendant’s DNA profile as
found in the state and national DNA databases for crimi-
nal offenders. Moreover, video surveillance footage
from the location where the incident took place at the
time that the incident took place depicts the victim
being led away forcibly by the perpetrator and, later,
running naked along Park Street. On the basis of their
investigation, including information and a description
of the male perpetrator provided to the police by the
victim, the defendant was arrested and charged with
the crimes of which he was convicted.
In his motion for a new trial, the defendant asserted
that ‘‘[t]he court, having heard the evidence in this mat-
ter in its entirety, could conclude that the jury’s verdict
was clearly against the weight of the evidence and that
the interests of justice require that the defendant be
granted a new trial . . . .’’ At the hearing on the motion,
the defendant’s attorney conceded that the evidence
presented by the state supported a finding of guilt. Spe-
cifically, the defendant’s attorney referred to the vic-
tim’s trial testimony that the perpetrator forced her to
perform oral sex, as well as the DNA evidence presented
by the state that demonstrated that the defendant’s
semen was present in her mouth following the alleged
incident. The defendant’s attorney argued, however,
that the defendant was entitled to a new trial because
a finding of guilt by the jury demonstrated that it had
disregarded other evidence and had concluded that
other witnesses were not credible. He argued that the
defendant’s version of events was ‘‘correct and
credible.’’
The defendant’s attorney continued his argument by
observing that, although the victim testified that she
had spat the perpetrator’s ejaculate on the floor of the
abandoned building in which the assault had occurred,
the evidence demonstrated that, despite their investiga-
tive efforts, the police did not find any evidence of
ejaculate on the floor. Also, the defendant’s attorney
argued that video surveillance evidence that depicted
the victim and the perpetrator both prior to and immedi-
ately following the sexual assault did not support a
finding that the defendant was the perpetrator seen in
the video. Moreover, the defendant’s attorney argued
that, although the victim testified that the perpetrator
smelled like PCP,3 the defendant presented credible
testimony concerning his sound habits from his wife,
Margaret Washington, and his employer, Willie D.
Jumper, Jr., and that their testimony did not support a
finding that the defendant was a PCP user.
After hearing the arguments advanced by the defen-
dant and the state, the court summarily denied the
defendant’s motion for a new trial. The court explained
that it would not accept the defendant’s invitation to
reassess the credibility of the witnesses and, thereby,
to second-guess the jury’s assessment of them.
Before this court, the defendant reiterates arguments
that he raised at trial. The defendant does not dispute
that the victim was kidnapped and taken into an aban-
doned building, but denies being the perpetrator of this
crime. He argues that ‘‘[t]he only piece of evidence
connecting [him] to the victim was the DNA test result
that he was a contributor to the DNA in the victim’s
mouth.’’ At trial, the defendant denied that he was the
perpetrator, but testified that, sometime between 8:15
p.m. and 9 p.m. on July 28, 2010, he picked up the
victim in his automobile and paid her fourteen dollars
to perform oral sex on him. Relying on this trial testi-
mony, the defendant argues that the DNA evidence was
not compelling evidence of his guilt.
In support of his claim, the defendant argues that
there was no evidence that his considerable criminal
history included crimes of a sexual nature. Next, the
defendant argues that the victim was not a credible
witness and that the police did not discover evidence
of the defendant’s ejaculate in the abandoned building.
Also, the defendant argues that the verdict cannot stand
in light of the opinion testimony of Frank DiMatteo,
the manager of legal technology and development
employed by the Office of the Chief Public Defender.
DiMatteo opined that, on the basis of his evaluation of
the surveillance video of the victim and the perpetrator
of the crime, the defendant is much taller than the
perpetrator. Finally, the defendant argues that, contrary
to the fact that the victim testified that the perpetrator
smelled like PCP, the testimony concerning his behav-
ior generally, which he claims was credible, reflected
that he was not a PCP user. On these grounds, as well
as his assertion that the state’s case was weak, the
defendant argues that the verdict was contrary to the
manifest weight of the evidence.
‘‘Although the jury is ordinarily the sole arbiter of
the facts in a criminal case, its power is not absolute.
. . . The court serves a supervisory function vis-a-vis
the jury. . . . In passing upon a motion to set aside a
verdict, the trial judge must do just what every juror
ought to do in arriving at a verdict. The juror must use
all his [or her] experience, his [or her] knowledge of
human nature, his [or her] knowledge of human events,
past and present, his [or her] knowledge of the motives
which influence and control human action, and test the
evidence in the case according to such knowledge and
render his [or her] verdict accordingly. A juror who did
not do this would be remiss in his [or her] duty. The
trial judge in considering the verdict must do the same,
or fail in the discharge of that function which the law
has laid upon him [or her]; and if, in the exercise of all
his [or her] knowledge from this source, he [or she]
finds the verdict to be so clearly against the weight of
the evidence in the case as to indicate that the jury did
not correctly apply the law to the facts in evidence in
the case, or were governed by ignorance, prejudice,
corruption or partiality, then it is his [or her] duty to
set aside the verdict. . . . In such a case, [a] verdict
may be set aside even if the evidence was conflicting
and there was direct evidence in favor of the party who
prevailed with the jury. . . .
‘‘One cogent reason for overturning the verdict of a
jury is that the verdict is based on conclusions that are
physically impossible. [A] verdict should be set aside
[w]here testimony is thus in conflict with indisputable
physical facts, the facts demonstrate that the testimony
is either intentionally or unintentionally untrue, and
leave no real question of conflict of evidence for the jury
concerning which reasonable minds could reasonably
differ.’’ (Citations omitted; internal quotation marks
omitted.) State v. Hammond, 221 Conn. 264, 267–68,
604 A.2d 793 (1992).
The defendant’s arguments do not support a claim
that the verdict was based on conclusions that are physi-
cally impossible, that the verdict conflicts with indisput-
able physical facts, or that the verdict conflicts with
evidence concerning which reasonable minds could not
reasonably differ. It is fundamental that issues relating
to credibility and the assessment of conflicting evidence
are within the province of the jury. ‘‘Our law is well
settled that it is a jury’s duty to determine the credibility
of witnesses and to do so by observing firsthand their
conduct, demeanor and attitude.’’ (Internal quotation
marks omitted.) State v. Gilberto L., 292 Conn. 226, 247,
972 A.2d 205 (2009). ‘‘It is axiomatic that it is the jury’s
role as the sole trier of the facts to weigh the conflicting
evidence and to determine the credibility of witnesses.
. . . It is the right and duty of the jury to determine
whether to accept or to reject the testimony of a witness
. . . and what weight, if any, to lend to the testimony of
a witness and the evidence presented at trial.’’ (Internal
quotation marks omitted.) State v. Osbourne, 138 Conn.
App. 518, 533–34, 53 A.3d 284, cert. denied, 307 Conn.
937, 56 A.3d 716 (2012).
There is no support for the argument that the defen-
dant’s lack of a history of committing crimes of a sexual
nature somehow precluded the jury from finding him
guilty in the present case. Additionally, the fact that
there was evidence that the victim had been untruthful
in the past, with regard to matters unrelated to the
present case, did not preclude the jury from concluding
that her testimony in the present case was truthful.
Moreover, arguments related to the victim’s lack of
credibility in the present case are particularly unpersua-
sive in light of the fact that the issue of whether the
victim had been assaulted was not in dispute, and her
version of events leading up to and following the assault
was corroborated by video surveillance footage that
depicted her abduction and flight from the scene of the
crime. Although the defendant attempts to cast doubt
on the victim’s version of events by highlighting the
fact that the police did not find evidence of his ejaculate
on the floor in the abandoned building, the jury reason-
ably could have concluded that such lack of evidence
did not cast doubt on the victim’s testimony because
there was evidence that the conditions inside of the
building made it difficult to search for evidence of this
nature and that the materials collected from the building
were of such a nature that they were not amenable to
biological testing.
Likewise, the defendant’s arguments related to PCP
are not persuasive. As a preliminary matter, we observe
that the defendant’s use of PCP, or lack thereof, was
irrelevant to his guilt. The victim testified that the perpe-
trator smelled like PCP, which was an observation that
the jury readily could have discredited or found to have
been mistaken in light of the victim’s testimony that
she merely had passed by people that she believed were
smoking PCP. Also, the victim did not testify that the
perpetrator was a PCP user. Assuming that the jury
found that the perpetrator did, in fact, smell like PCP,
such a subordinate finding does not as a matter of
sound logic require that the jury reach a finding that
the perpetrator was a PCP user, or that he was under
the effects of PCP at the time of the alleged offense.
There is no basis in law or logic to conclude that a
finding of the defendant’s guilt was linked to his alleged
use of PCP. Thus, evidence presented by the defendant
that, he argues, tended to demonstrate that he was not
a PCP user4 does not cast doubt on the propriety of the
verdict in the present case.
Finally, we turn to the issue of the video surveillance
evidence and the defendant’s interpretation of it. The
defendant states that he presented uncontradicted tech-
nical evidence from DiMatteo that demonstrated that
the perpetrator of the crime was much shorter than the
defendant. We readily reject the defendant’s attempt to
characterize this evidence as proof of an indisputable
physical fact that is inconsistent with the jury’s guilty
verdict. It suffices to observe that, on the basis of his
examination of the video footage and his knowledge of
the defendant’s height, DiMatteo opined that the defen-
dant was not the perpetrator. Although DiMatteo testi-
fied concerning the method by which he calculated the
height of the perpetrator depicted in the video footage
by evaluating pixels in stills taken from that footage
together with other information, he readily acknowl-
edged during cross-examination the inherent weak-
nesses in his methodology. Specifically, he testified that
his method of calculating the perpetrator’s height was
based on an assumption that the video still under exami-
nation completely depicted the height of the perpetrator
from head to toe. Yet, DiMatteo testified as to the diffi-
culty of determining how the continuous physical move-
ment of the person depicted in the stills at issue
influences this assumption, which logically affects the
accuracy of his calculation of that person’s height. Thus,
the video evidence and DiMatteo’s opinion were not,
as the defendant argues, uncontroverted evidence that
undermines confidence in the jury’s verdict.
The jury was free to evaluate DiMatteo’s opinion testi-
mony, and reject it in whole or in part, for ‘‘[t]he accep-
tance or rejection of the opinions of expert witnesses
is a matter peculiarly within the province of the trier
of fact and its determinations will be accorded great
deference by this court. . . . In its consideration of the
testimony of an expert witness, the [finder of fact] might
weigh, as it sees fit, the expert’s expertise, his opportu-
nity to observe the defendant and to form an opinion,
and his thoroughness. It might consider also the reason-
ableness of his judgments about the underlying facts
and of the conclusions which he drew from them. . . .
It is well settled that the trier of fact can disbelieve any
or all of the evidence proffered . . . .’’ (Internal quota-
tion marks omitted.) Sheppard v. Sheppard, 80 Conn.
App. 202, 212, 834 A.2d 730 (2003); see also State v.
Hoover, 54 Conn. App. 773, 777, 738 A.2d 685 (1999)
(‘‘It is the function of the jury to consider the evidence
and to judge the credibility of witnesses. . . . The jury
is free to accept or reject all or part of a witness’ testi-
mony.’’ [Citation omitted.]). We are not persuaded that
the jury unreasonably evaluated DiMatteo’s testimony,
the video at issue, its observations of the defendant, and
the victim’s description of the perpetrator in arriving at
a finding that the defendant was the perpetrator of the
crimes at issue.
In light of the foregoing, we conclude that the court’s
denial of the defendant’s motion for a new trial, on the
ground that the verdict was contrary to the weight of
the evidence, did not reflect an abuse of its discretion.
II
Next, the defendant claims that the court improperly
denied his motion for a new trial because the state
deprived him of a fair trial when it withheld exculpatory
information that supported his theory of defense. We
disagree.
The following additional facts and procedural history
are relevant to this claim. Prior to trial, the defendant
filed a ‘‘Request for Discovery’’ in which he sought from
the state ‘‘[e]xculpatory information or materials
. . . .’’ One of the grounds set forth by the defendant
in his motion for a new trial, as discussed in part I of
this opinion, provides: ‘‘On information and belief, the
state is aware of information, based on similar cases
under investigation, which would comprise or poten-
tially lead to evidence of third-party culpability which
was not disclosed.’’
During the hearing on the defendant’s motion, the
defendant’s attorney represented the following facts to
the court: ‘‘Judge, during . . . the trial at a break, I
was having a conversation with the state’s inspector. I
don’t know who initiated it. And we were discussing,
I think what we . . . all know, at least anecdotally,
that there’s been a series of attacks against women in
the Park Street area, all with broadly the same [modus
operandi] and with some indication that the perpetrator
may have had some mental health issues.
‘‘But this was significant enough that, in fact, there’s
been another arrest of an individual, an individual that
my office had previously represented, and we felt that
it was too close actually to continue representation of
him and he was assigned out. That was not presented
to the court or to the jury, in terms of third-party culpa-
bility, because . . . although he fits the height and the
weight and the mental health and the drug usage param-
eters, he’s a light-skinned Hispanic, so he did not really
match up with the individual seen on [the surveillance]
video [during the trial].
‘‘Anyway, that . . . point was discussed, [the defen-
dant] was discussed, and the inspector—and I don’t
know the basis of his information or how significant it
is, but he did observe that he felt that [the Hartford
Police Department] had some other suspect in the
majority of these cases, not [the defendant] and not
. . . the other individual that I mentioned, Your Honor.
Again, I don’t know if they do or not, I just know what
the inspector told me.’’
Before concluding his discussion of this matter, the
defendant’s attorney stated: ‘‘I’m not sure that one of
them gives me grounds to request some relief from the
court unless we’re to go somehow into further hearings
to find out exactly what the inspector knows and
exactly what [the Hartford Police Department] knows.
And I would . . . certainly leave that to the court.’’
The prosecutor replied to the defendant’s attorney’s
statements by stating: ‘‘I was not aware of another sus-
pect as it applies to this case.’’ The court denied the
defendant’s motion without addressing specifically
this ground.
For the first time on appeal, the defendant states
that the state’s failure timely to disclose exculpatory
information that supported his defense of third-party
culpability was a violation of Brady v. Maryland, 373
U.S. 83, 86, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
The defendant argues that his claim was adequately
preserved for appellate review by means of his request
for production and his motion for a new trial. Alterna-
tively, the defendant affirmatively seeks review of his
claim under the doctrine set forth in State v. Golding,
213 Conn. 233, 239–40, 567 A.2d 823 (1989), and also
claims that plain error exists. See Practice Book § 60-
5. The state argues that the claim is unreviewable
because the defendant has failed to provide this court
with an adequate record that encompasses the court’s
factual findings and legal conclusions.
‘‘In Brady v. Maryland, supra, 373 U.S. 87, the United
States Supreme Court held that the suppression by the
prosecution of evidence favorable to an accused . . .
violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution. . . . [T]he Brady
rule applies not just to exculpatory evidence, but also
to impeachment evidence . . . which, broadly defined,
is evidence having the potential to alter the jury’s assess-
ment of the credibility of a significant prosecution wit-
ness. . . . In order to prove a Brady violation, the
defendant must show: (1) that the prosecution sup-
pressed evidence after a request by the defense; (2)
that the suppressed evidence was favorable to the
defense; and (3) that the evidence was material. . . .
‘‘[E]vidence known to the defendant or his counsel,
or that is disclosed, even if during trial, is not considered
suppressed as that term is used in Brady. . . . Even
if evidence is not deemed suppressed under Brady
because it is disclosed during trial, however, the defen-
dant nevertheless may be prejudiced if he is unable to
use the evidence because of the late disclosure. . . .
Under these circumstances, the defendant bears the
burden of proving that he was prejudiced by the state’s
failure to make the information available to him at an
earlier time. . . . Whether the [defendant] was
deprived of his due process rights due to a Brady viola-
tion is a question of law, to which we grant plenary
review.’’ (Citations omitted; internal quotation marks
omitted.) State v. Rivera, 152 Conn. App. 248, 255–56,
96 A.3d 1285, cert. denied, 314 Conn. 934, 102 A.3d
85 (2014).
‘‘In State v. Thompson, [81 Conn. App. 264, 278, 839
A.2d 622, cert. denied, 268 Conn. 915, 847 A.2d 312(2004)], this court reiterated that [e]vidence known to
the defendant or his counsel, or that is disclosed, even
if during trial, is not considered suppressed as that term
is used in Brady. . . . Where there has been an initial
disclosure of exculpatory evidence at trial, the appro-
priate standard to be applied is whether the disclosure
came so late as to prevent the defendant from receiving
a fair trial. . . . The defendant bears the burden of
proving that he was prejudiced by the failure of the
state to make the disclosure earlier.’’ (Internal quotation
marks omitted.) State v. Ivan G. S., 154 Conn. App. 246,
252, 105 A.3d 905 (2014), cert. denied, 315 Conn. ,
A.3d (2015).
In his motion for a new trial, the defendant raised a
Brady type claim by alleging that the state had failed
to disclose material information to the defense. The
argument advanced by the defendant with regard to
this claim, which was based on a late disclosure by the
state’s investigator during the course of the trial, hardly
was compelling. As set forth previously in this opinion,
although the matter concerned an event of which he
admitted to having first-hand knowledge, the defen-
dant’s attorney did not explain precisely when during
the trial the disclosure at issue occurred. There was no
evidence presented to demonstrate that the disclosure
was, in fact, late. The defendant’s attorney stated that
he was ‘‘not sure’’ if he had grounds for requesting any
relief in connection with this issue and did not request
any relief, such as a further hearing, but stated that he
would ‘‘leave [it] to the court’’ to decide whether further
proceedings were appropriate to investigate what was
known by the inspector or the police department. The
present claim is based on an alleged Brady violation,
not that the court erred by failing to order that any
further proceedings be held in connection with this
claim.
Brady requires a showing that (1) evidence was sup-
pressed, (2) the suppressed evidence was favorable to
the defense, and (3) the suppressed evidence was mate-
rial. State v. Rivera, supra, 152 Conn. App. 256. Because
the defendant’s claim was based on a disclosure that
occurred during trial, the defendant bore the burden
of demonstrating the manner in which he was preju-
diced by the state’s failure to disclose the information
at an earlier time. State v. Ivan G. S., supra, 154 Conn.
App. 252. Here, the defendant’s attorney referred to the
information shared by the state’s investigator, in part,
as information ‘‘we all know.’’ He then expressed uncer-
tainty as to the accuracy of what the investigator told
him. The statements of the defendant’s attorney merely
invited conjecture that some type of impropriety
occurred; he did not demonstrate that the timing of
the disclosure was improper, the manner in which the
information would have been favorable and material
to the defense, or how the timing of the disclosure
prejudiced the defense. The defendant’s attorney did
not refer to the existence or extent of any investigative
efforts of his own concerning this issue, but merely
left it to the court’s discretion to conduct a further
investigation. What is clear is that, although the defen-
dant’s attorney stated that he learned of this information
during the trial, he failed to request any relief at that
time, but chose to raise the present issue in his posttrial
motion for a new trial.
In denying the motion for a new trial, the court did
not set forth any factual findings or legal conclusions
specifically related to the defendant’s claim of an
untimely disclosure. It is the defendant’s burden to pre-
sent this court with an adequate record to review the
claim that the court improperly denied his motion for
a new trial on this ground. See Practice Book § 61-
10 (a) (responsibility of appellant to present adequate
record for review). The defendant did not take any steps
to obtain an articulation of the court’s decision in this
regard. See Practice Book § 66-5 (filing motion for artic-
ulation). In light of the fact that the defendant did not
present any evidence to demonstrate that an untimely
disclosure of material information prejudiced the
defense and presuming, as we must, that the court acted
correctly in ruling on this claim,5 we readily conclude
that the defendant cannot meet his burden of demon-
strating that the court abused its discretion when it
denied the motion for a new trial on the basis of his
Brady claim.
III
Finally, the defendant claims that the court improp-
erly denied his motion for a new trial because prosecu-
torial impropriety during closing argument deprived
him of a fair trial. We disagree.
The following additional facts are relevant to this
claim. At trial, the victim testified that she was at her
boyfriend’s house until approximately 12 a.m. on July
28, 2010, and that the sexual assault occurred thereafter,
while she was walking to her mother’s house. At trial,
the defendant testified that on July 28, 2010, he paid
the victim to provide him with oral sex. He testified
that, at approximately 8:30 p.m., he was driving home
alone after visiting friends when he stopped at a traffic
signal at the intersection of Washington Street and Park
Street in Hartford. At that location, he observed a female
crossing the street. After they made eye contact, he
used the headlamps of his automobile to signal to her.
The defendant positioned his automobile near the side
of the street, at which time, and with his consent, the
female got into his automobile. The female directed
him to drive to a nearby location on a side street, at
which time the defendant and the victim agreed that
the defendant would pay the female ten dollars in
exchange for oral sex. The defendant stated that he
transferred fourteen dollars to the female and that she
performed oral sex on him in his parked automobile.
According to the defendant, he completed his sex act,
cleaned himself accordingly, and the victim walked
back in the direction of Washington Street. The defen-
dant stated that this was the last interaction that he
had with the female, and that he proceeded to drive
home. During his testimony, the defendant provided
the jury with a physical description of the female at
issue and stated that the victim was the female at issue.
During cross-examination, the prosecutor asked the
defendant several questions about his testimony that
he had engaged in a sex act with a prostitute on July
28, 2010. The prosecutor asked the defendant when he
‘‘came up’’ with ‘‘the story about the prostitute.’’ The
defendant replied that ‘‘it happened,’’ and that he had
been with more than one prostitute in 2010.
During the defendant’s closing argument, his attorney
referred to the evidence of prostitution. The defendant’s
attorney stated: ‘‘[The defendant] testified; you heard
his explanation about why you would find his seminal
fluid in [the victim’s] mouth. It’s not a pretty picture.
I’m certain it’s not anything to be proud of exactly,
but there it is. Now, you heard [the prosecutor] cross-
examine [the defendant]. [The prosecutor] suggested,
as is his right, that what [the defendant] was doing was
. . . being familiar with the facts, he’s just come up
with a good story, kind of wraps it all up and says that
he is not guilty.’’
During his rebuttal argument, the prosecutor stated
in relevant part: ‘‘What reasonable doubt is here? One
thing you have to remember is this case is State versus
William Washington. This is not the case of State versus
[the victim]. There’s this defense of—I should say part
of a defense is prostitution.
‘‘In this case, you have no evidence whatsoever of
[the victim] being a prostitute. You cannot speculate
that she was. You have to base your decision on the
evidence presented in this courtroom, in this case.’’
Later during his rebuttal argument, the prosecutor
stated in relevant part: ‘‘So this is the time that the state
will tell you to use your common sense in this case.
Definitely use your common sense. You know, you have
to ask . . . the question; you really have no logical
explanation for why the defendant’s DNA is in [the
victim’s] mouth. You have no logical explanation. And
the defendant’s testimony didn’t give it to you either.
So, when you go back to deliberate, don’t leave your
common sense at the door. Look at all the evidence.’’
The defendant did not raise any claim relating to the
propriety of this rebuttal argument until he filed his
motion for a new trial. One of the grounds set forth in
that motion stated: ‘‘The state argued in closing that
there was no evidence of prostitution, without qualifica-
tion, on the part of the complainant when in fact that
was a significant element of the defendant’s testimony.’’
During argument on the motion, the defendant’s attor-
ney stated in relevant part: ‘‘Now . . . whether it was
intended by the state as this or not, the state did argue
without reservation that there was no evidence of pros-
titution when in fact that was exactly what [the defen-
dant] was testifying to. And to the extent that might be
construed as saying that [the defendant] was lying,
that’s certainly something that’s unfair to [the defen-
dant] and should be taken into account and potentially
alone could be enough to grant a new trial.’’ The court
denied the defendant’s motion for a new trial without
referring to this specific ground.
As he did at trial, the defendant argues that the prose-
cutor’s rebuttal argument constituted prosecutorial
impropriety. Referring to his trial testimony that he
paid the victim to perform oral sex, he argues that the
prosecutor, without qualification, mischaracterized the
evidence by stating that there was no evidence that the
victim was a prostitute. Furthermore, the defendant
argues that, by arguing that there was no logical expla-
nation for the fact that the defendant’s DNA was found
in the victim’s mouth, the prosecutor improperly
expressed an opinion as to his guilt and lack of credibil-
ity. The defendant argues that the improper argument
in this regard deprived him of a fair trial because the
issue of the defendant’s DNA was the only critical issue
in the case and the defense did not invite the
improper argument.
The defendant draws our attention to the fact that
he raised this claim of prosecutorial impropriety before
the trial court in the context of his motion for a new
trial. We review the claim in the context of the court’s
denial of that motion. We observe, however, that ‘‘[t]he
appropriate time for a defendant to raise a claim of
impropriety in the state’s final argument is either at the
time the improper argument is made or at the close of
the state’s argument, not in a postverdict motion.’’ State
v. Whipper, 258 Conn. 229, 244, 780 A.2d 53 (2001),
overruled in part on other grounds by State v. Cruz,
269 Conn. 97, 106, 848 A.2d 445 (2004), and State v.
Grant, 286 Conn. 499, 535, 944 A.2d 947, cert. denied,
555 U.S. 916, 129 S. Ct. 271, 172 L. Ed. 2d 200 (2008).
Regardless of whether we review the claim in the con-
text of the court’s denial of the motion for a new trial
or as an alleged instance of prosecutorial impropriety
that was not properly raised before the trial court,6 the
claim fails because the defendant is unable to demon-
strate that any impropriety occurred.
‘‘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. . . . An
appellate court’s determination of whether any
improper conduct by the prosecutor violated the defen-
dant’s right to a fair trial is predicated on the factors
established in State v. Williams, 204 Conn. 523, 540,
529 A.2d 653 (1987). Those factors include the extent
to which the [impropriety] was invited by defense con-
duct or argument . . . the severity of the [impropriety]
. . . the frequency of the [impropriety] . . . the cen-
trality 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. . . .
[If] a defendant raises on appeal a claim that improper
remarks by the prosecutor deprived the defendant of
his constitutional right to a fair trial, the burden is on
the defendant to show . . . that the remarks were
improper . . . .’’ (Citations omitted; internal quotation
marks omitted.) State v. Chase, 154 Conn. App. 337,
341–42, A.3d (2014), cert. denied, 315 Conn.
, A.3d (2015).
‘‘As [our Supreme Court] previously [has] recognized,
prosecutorial [impropriety] of a constitutional magni-
tude can occur in the course of closing arguments. . . .
When making closing arguments to the jury, [however]
[c]ounsel must be allowed a generous latitude in argu-
ment, as the limits of legitimate argument and fair com-
ment cannot be determined precisely by rule and line,
and something must be allowed for the zeal of counsel
in the heat of argument. . . . Thus, as the state’s advo-
cate, a prosecutor may argue the state’s case forcefully,
[provided the argument is] fair and based upon the facts
in evidence and the reasonable inferences to be drawn
therefrom. . . . Moreover, [i]t does not follow . . .
that every use of rhetorical language or device [by the
prosecutor] is improper. . . . The occasional use of
rhetorical devices is simply fair argument. . . .
‘‘Nevertheless, the prosecutor has a heightened duty
to avoid argument that strays from the evidence or
diverts the jury’s attention from the facts of the case.
[The prosecutor] is not only an officer of the court,
like every attorney, but is also a high public officer,
representing the people of the [s]tate, who seek impar-
tial justice for the guilty as much as for the innocent.
. . . By reason of his office, he usually exercises great
influence upon jurors. His conduct and language in the
trial of cases in which human life or liberty [is] at stake
should be forceful, but fair, because he represents the
public interest, which demands no victim and asks no
conviction through the aid of passion, prejudice, or
resentment. If the accused [is] guilty, he should [none-
theless] be convicted only after a fair trial, conducted
strictly according to the sound and well-established
rules which the laws prescribe. While the privilege of
counsel in addressing the jury should not be too closely
narrowed or unduly hampered, it must never be used
as a license to state, or to comment upon, or to suggest
an inference from, facts not in evidence, or to present
matters which the jury ha[s] no right to consider.’’
(Internal quotation marks omitted.) State v. Medrano,
308 Conn. 604, 611–12, 65 A.3d 503 (2013).
Additionally, ‘‘[a] prosecutor may not express his own
opinion, directly or indirectly, as to the credibility of
the witnesses. . . . Nor should a prosecutor express
his opinion, directly or indirectly, as to the guilt of the
defendant. . . . Such expressions of personal opinion
are a form of unsworn and unchecked testimony, and
are particularly difficult for the jury to ignore because
of the prosecutor’s special position. . . . Moreover,
because the jury is aware that the prosecutor has pre-
pared and presented the case and consequently, may
have access to matters not in evidence . . . it is likely
to infer that such matters precipitated the personal
opinions. . . . It is not, however, improper for the pros-
ecutor to comment upon the evidence presented at trial
and to argue the inferences that the jurors might draw
therefrom . . . .’’ (Citation omitted; internal quotation
marks omitted.) State v. Luster, 279 Conn. 414, 435, 902
A.2d 636 (2006).
The defendant analyzes this claim by focusing on the
prosecutor’s declaration that there was ‘‘no evidence
whatsoever of [the victim] being a prostitute.’’ When
these words are considered in artificial isolation, inter-
preted literally, and afforded their most sinister inter-
pretation, the defendant’s claim appears to have merit.
This is because the defendant’s testimony constituted
evidence that the victim was a prostitute and that she
engaged in a sex act for money with him hours before
the sexual assault.
Claims involving prosecutorial impropriety during
the course of closing argument require a court to evalu-
ate a prosecutor’s statements not for their possible
meaning, but for the manner in which the jury reason-
ably and likely would have understood them. Because
the meaning of words and statements typically is depen-
dent on the context in which they are used, a court must
carefully consider a prosecutor’s challenged statements
by carefully considering their context in the entire trial,
including the remainder of the state’s closing argument.
See, e.g., State v. Francione, 136 Conn. App. 302, 325, 46
A.3d 219 (reviewing courts do not evaluate prosecutor’s
statements in artificial isolation), cert. denied, 306
Conn. 903, 52 A.3d 730 (2012).
A review of the prosecutor’s argument in its entirety
leads us to conclude that the prosecutor’s statement,
that there was no evidence that the victim was a prosti-
tute, was a fair critique of the defendant’s testimony to
the contrary. During cross-examination, the prosecutor
posed questions that were designed to cast doubt on
the defendant’s testimony that his DNA was found in
the victim’s mouth because he had paid her for sex.
During the defendant’s closing argument, the defen-
dant’s attorney drew the jury’s attention to the fact that
the state viewed the defendant’s testimony in this regard
to be entirely self-serving. The challenged statement
during rebuttal argument followed the prosecutor’s
arguments that reasonable doubt did not exist and that
the victim was not on trial. After referring specifically
to the ‘‘defense’’ of prostitution, the prosecutor made
the remark at issue, that there was no evidence that
the victim was a prostitute. The prosecutor stated that
the jury had to base its decision on the evidence pre-
sented at trial. Moments later, when discussing the
state’s DNA evidence, the prosecutor said there was
‘‘no logical explanation’’ for this evidence and that ‘‘the
defendant’s testimony didn’t give it to you either.’’
(Emphasis added.)
Thus, at trial, the prosecutor cross-examined the
defendant concerning his testimony that he paid the
victim for sex. During the state’s rebuttal argument, the
prosecutor’s statement about there being ‘‘no evidence’’
of prostitution was surrounded by statements that nec-
essarily had drawn the jury’s attention to the defen-
dant’s testimony that the victim was a prostitute. By
referring to a ‘‘defense’’ of prostitution, the prosecutor
logically had referred to the defendant’s trial testimony.
Also, by stating that ‘‘the defendant’s testimony’’ did
not provide a logical explanation to rebut the persua-
siveness of the state’s DNA evidence, the prosecutor
logically and directly had drawn the jury’s attention to
the defendant’s testimony about prostitution.
In this context, there is no basis on which to afford
the prosecutor’s statement its most damaging interpre-
tation. See State v. Ciullo, 314 Conn. 28, 48, 100 A.3d
779 (2014) (‘‘a court should not lightly infer that a prose-
cutor intends an ambiguous remark to have its most
damaging meaning or that a jury, sitting through lengthy
exhortation, will draw that meaning from the plethora
of less damaging interpretations’’ [internal quotation
marks omitted]). It would be unreasonable to interpret
the state’s argument in the manner suggested by the
defendant because it would yield an illogical meaning.
Specifically, it would result in an argument that simulta-
neously highlights the defendant’s trial testimony that
the victim was a prostitute and suggests that such testi-
mony did not exist. It is far more reasonable to conclude
that, in the heat of argument, the prosecutor used the
inexact phrase ‘‘no evidence’’ as a shorthand way of
stating that, when subjected to appropriate scrutiny by
the jury, the defendant’s version of events simply was
not credible evidence of the matters asserted therein.7
Apart from arguing that the prosecutor mischaracter-
ized the evidence, the defendant argues that the prose-
cutor’s argument was an improper commentary on his
credibility and his guilt. This argument is unpersuasive
because the defendant has not demonstrated that the
prosecutor’s commentary was unrelated to the evidence
and a rational assessment of the evidence. It is permissi-
ble for a prosecutor to ask the jury to infer that a
defendant testified untruthfully if there is a reasonable
basis in the evidence on which to draw such an infer-
ence. See, e.g., State v. Warholic, 278 Conn. 354, 371–72,
897 A.2d 569 (2006); State v. Dawes, 122 Conn. App.
303, 312, 999 A.2d 794, cert. denied, 298 Conn. 912, 4
A.3d 834 (2010). The prosecutor, in arguing that there
was no evidence that the victim was a prostitute, stated
that the jury should evaluate the issue based ‘‘on the
evidence presented in this courtroom . . . .’’ The pros-
ecutor invited the jury to evaluate the DNA evidence
using its ‘‘common sense’’ and stated that the defen-
dant’s testimony did not provide ‘‘[a] logical explana-
tion’’ consistent with his innocence. Viewed in light of
the entire trial, including the prosecutor’s cross-exami-
nation of the defendant, the argument reflected the
prosecutor’s critical assessment of the defendant’s testi-
mony and his guilt, not the prosecutor’s personal opin-
ion of the defendant’s credibility or guilt. The
prosecutor invoked concepts of common sense and
logic, not his personal belief or facts that were known
to the prosecutor and unknown to the jury. Accordingly,
we conclude that the statements fell within the fair
bounds of proper commentary on the evidence and the
inferences to be drawn therefrom.
For the foregoing reasons, we conclude that the chal-
lenged rebuttal argument was not improper. Accord-
ingly, the defendant is unable to demonstrate that the
argument deprived him of a fair trial. As it relates to
the defendant’s claim of prosecutorial impropriety, the
court’s denial of the motion for a new trial reflected a
proper exercise of its discretion.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The trial court sentenced the defendant to a total effective term of ten
years incarceration, execution suspended after five years, followed by a
period of probation of five years.
2
In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
3
There was evidence that phencyclidine (PCP) is a street drug that induces
psychotic behavior. See footnote 4 of this opinion.
4
The defendant testified about his habits and routine at the time of the
incident at issue. The defense presented testimony from Jumper and Marga-
ret Washington about the defendant’s habits and routine generally with
respect to his home life and employment. The defendant then presented
evidence from Louis Montagna, a social worker employed by the Office of
the Public Defender. Montagna testified concerning PCP and the deleterious
effect that it has on users. He testified that users demonstrate psychotic
behavior and that it would be very difficult for a PCP user to maintain a
normal lifestyle. On the basis of this evidence, the defendant argued at trial
and argues before this court that a PCP user could not have maintained his
type of lifestyle.
We have stated that the defendant’s argument is flawed in that it is based
on a faulty premise that, because of the victim’s testimony that he smelled
like PCP, his criminal culpability in this case was predicated on a finding
that he was a PCP user. Yet, we also observe that the record does not
support his argument that the evidence strongly demonstrated that he did
not exhibit the type of psychotic behavior seen in PCP users. First, we note
that neither Jumper nor Washington were able to recall the defendant’s
habits or routine on the date of the incident at issue. Second, Montagna
acknowledged in his testimony that a person could be an infrequent PCP
user, perhaps by using the drug ‘‘every six weeks,’’ and could maintain a
normal lifestyle.
5
‘‘The correctness of a judgment of a court of general jurisdiction is
presumed in the absence of evidence to the contrary. We do not presume
error. The burden is on the appellant to prove harmful error.’’ (Internal
quotation marks omitted.) Equity One, Inc. v. Shivers, 310 Conn. 119, 132,
74 A.3d 1225 (2013).
6
We note that unpreserved claims of prosecutorial impropriety are review-
able on appeal absent resort to an extraordinary level of review. See, e.g.,
State v. Ciullo, 314 Conn. 28, 35, 100 A.3d 779 (2014).
7
Additionally, at the beginning of the state’s closing argument, the prosecu-
tor correctly stated to the jury that its recollection of what transpired during
the presentation of evidence was controlling and that the jury was obligated
to follow the court’s instructions. The prosecutor stated in relevant part:
‘‘A couple of preliminaries in this case: you’re the fact finders; so it’s your
recollection that controls, not what I say. . . . The judge is going to instruct
you on the law, and if there’s something different between what I say and
what the judge says, it’s the judge’s instructions that control in this matter.’’
Later, during its charge, the court unambiguously instructed the jury that
its recollection of the evidence was controlling and that it was to find facts
on the basis of the evidence presented at trial. The court stated that the
jury was not permitted to ‘‘go outside the evidence introduced in court to
find the facts.’’ The court went on to state in relevant part: ‘‘The evidence
from which you are to decide what the facts are consists of, one, the sworn
testimony of witnesses, both on direct and cross-examination, regardless
of who called the witness, and two, the exhibits that have been admitted
into evidence, regardless of who called the witness.
‘‘The weight of the evidence presented by each side does not depend on
the number of witnesses; it is on the quality of the evidence, not the quantity
of the evidence, that you must consider. In reaching your verdict, you should
consider all testimony and exhibits admitted into evidence.
‘‘Certain things are not evidence and you may not consider them in decid-
ing what the facts are. These include arguments and statements by lawyers.
The lawyers are not witnesses. What they have said in their closing arguments
is intended to help you interpret the evidence, but it is not evidence. If the
facts as you remember them differ from the way the lawyers have stated
them, your memory of them controls.’’