State v. Angel M.

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STATE OF CONNECTICUT v. ANGEL M.*
(AC 39723)
Keller, Mullins and Elgo, Js.
Syllabus
Convicted of the crimes of sexual assault in the first degree, attempt to
commit sexual assault in the first degree and risk of injury to a child
arising out of his alleged sexual abuse of the minor victim, his stepdaugh-
ter, the defendant appealed. Held:
1. The trial court did not abuse its discretion by admitting evidence of three
incidents of uncharged sexual misconduct involving A, the defendant’s
daughter: that court properly concluded that the evidence was relevant
in light of its findings that A was approximately the same age as was
the victim at the time of the alleged abuse, that both girls looked very
similar physically, that the defendant was in a position of authority
over both girls, and that the charged and uncharged misconduct were
sufficiently similar, and although the abuse of the victim occurred four
or five years before the alleged abuse of A and the defendant claimed
that there was a qualitative difference between A, his biological daughter,
and the victim, his stepdaughter, the uncharged misconduct was not
too remote in time, and neither the gap in time nor the familial distinction
rendered the uncharged misconduct irrelevant to prove that the defen-
dant had a propensity to engage in the charged conduct; moreover, the
trial court properly concluded that the probative value of A’s testimony
was not outweighed by its prejudicial effect, as the uncharged miscon-
duct involved groping A, which was less severe than the charged miscon-
duct concerning the victim, and the court issued limiting instructions
that minimized any prejudicial effect of that evidence.
2. The defendant could not prevail on his claim that multiple instances
of prosecutorial impropriety during cross-examination and in closing
rebuttal argument deprived him of a fair trial: the defendant’s claim that
the prosecutor improperly referred to facts that were not in evidence
when she asked an improper question during cross-examination of the
defendant was an unpreserved evidentiary claim and, thus, not review-
able, as it was not of constitutional magnitude, and his claim that the
prosecutor improperly referred to facts not in evidence during closing
rebuttal argument by mischaracterizing evidence and implying that the
defendant never told the police that the allegations were false was
unavailing, as the challenged comments were not improper, had an
adequate basis in the evidence, simply invited the jury to draw a reason-
able inference from the evidence presented and were intended to chal-
lenge the defendant’s theory that the victim’s mother had encouraged
the victim and A to fabricate the allegations; moreover, the prosecutor
did not appeal to the racial prejudices of the jurors when she referenced
the fact that the defendant was born and raised in another country while
exploring his background and his views on relationships with minors,
and did not improperly appeal to the passions or prejudices of the jury
with references to the defendant’s ethnicity or ability to speak English,
as the prosecutor sought to establish that the defendant spoke and
understood English well enough to have informed a police detective
about his alibi and that the girls had a motive for accusing him of
sexual abuse.
3. Although the prosecutor committed an impropriety when, during cross-
examination, she asked the defendant to comment on the veracity of
the testimony given by the victim and A, that impropriety did not deprive
the defendant of his due process right to a fair trial; because the version
of events offered by the victim and A was directly at odds with the
defendant’s account, there was no way for the jury to reconcile the
conflicting testimony except to conclude that someone was lying, and,
therefore, it was unlikely that asking the defendant directly whether the
victim and A were lying was so prejudicial as to amount to a violation
of due process.
4. The defendant could not prevail on his unpreserved claim that the trial
court improperly increased his sentence to penalize him for invoking
his fifth amendment privilege against self-incrimination when he refused
to apologize to the victim and A at sentencing; the sentencing court
properly considered the defendant’s denial in evaluating his prospects
for rehabilitation, as one consideration among many, in fashioning the
sentence imposed, although that court did not explicitly state that it
considered the defendant’s refusal to admit guilt as indicative of his
lack of rehabilitative prospects, it did acknowledge that rehabilitation
was one of the factors to be considered in fashioning an appropriate
remedy, and even though the sentencing court focused particularly on
the defendant’s failure to accept responsibility and to apologize to the
victim and A in denying him leniency, it expressly stated that it would
not punish the defendant for exercising his absolute right not to admit
guilt and to appeal his judgment of conviction, and also acknowledged
that the defendant had a positive presentence investigation report, that
several people spoke on his behalf, and that he successfully had com-
pleted a family violence education program, and this court had no reason
to doubt the trial court’s representation that it did not punish the defen-
dant for exercising his fifth amendment privilege.
Argued September 22, 2017—officially released March 20, 2018
Procedural History
Substitute information charging the defendant with
the crimes of sexual assault in the first degree, attempt
to commit sexual assault in the first degree and risk of
injury to a child, brought to the Superior Court in the
judicial district of Hartford, where the court, Mullarkey,
J., denied the defendant’s motion to preclude certain
evidence; thereafter the case was tried to the jury; ver-
dict and judgment of guilty, from which the defendant
appealed. Affirmed.
Pamela S. Nagy, assistant public defender, for the
appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy and Anne
Mahoney, state’s attorneys, for the appellee (state).
Opinion
MULLINS, J. The defendant, Angel M., appeals from
the judgment of conviction, rendered following a jury
trial, of sexual assault in the first degree in violation
of General Statutes § 53a-70 (a) (2), attempt to commit
sexual assault in the first degree in violation of General
Statutes §§ 53a-49 and 53a-70 (a) (2), and risk of injury
to a child in violation of General Statutes § 53-21 (a)
(2). On appeal, the defendant claims that (1) the trial
court erred by admitting uncharged sexual misconduct
evidence, (2) the prosecutor engaged in impropriety
that deprived him of the constitutional right to a fair
trial, and (3) the trial court violated his right to due
process at sentencing by penalizing him for exercising
his fifth amendment privilege against self-incrimination.
Although we agree with the defendant that one of the
prosecutor’s comments was improper, we, neverthe-
less, conclude that the defendant was not deprived of
his due process right to a fair trial. We reject the defen-
dant’s other claims, and we, accordingly, 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.
M is the mother of the victim. M became romantically
involved with the defendant when the victim was
approximately three or four years old. M had two chil-
dren, G and the victim, from a previous relationship.
The defendant was a father figure to the victim, and
she was considered his stepdaughter.
Approximately one year after the defendant and M
began dating, they had a child together named A. At
some point in 2000, the defendant moved in with M.
They lived together with the three children, the victim,
G, and A, in an apartment in Hartford until they pur-
chased a house in 2008.
In 2006 or 2007, when the victim was approximately
twelve years old,1 she arrived home after school and
went into her mother’s bedroom to play a game on
the family’s computer. While she was playing on the
computer, the defendant came up behind her and began
kissing her neck. The victim froze. Then the defendant
picked her up and threw her on the bed. He locked the
bedroom door and ‘‘did something near the side of the
bed’’ before lifting up the victim’s shirt and licking her
breasts. The defendant proceeded to lick the victim’s
vagina before taking off his pants and attempting to
put his penis in her vagina. The victim closed her legs,
and the defendant got off of her.2
Several years after that incident, on the evening of
December 18, 2011, the defendant and M were involved
in an incident outside of a restaurant in Newington.
That evening, M had gone to the restaurant without the
defendant. She was socializing with a female friend and
another man. The defendant, who had been waiting
impatiently for her to come home, decided to go to
the restaurant to find her. When he arrived, he saw M
socializing with a man he did not recognize. He became
angry. He confronted M in the parking lot and an argu-
ment ensued. The defendant struck M multiple times.
The police arrived shortly thereafter and arrested the
defendant. In January, 2012, a protective order was
issued as a result of the incident. Thereafter, the defen-
dant stopped providing financial assistance to M, and
he moved out of the house and into his own apartment.
Shortly after the defendant moved out of the house,
A ceased all communication with him. The lack of com-
munication between A and the defendant concerned M.
As a result, M asked the victim to talk to A in order
to figure out why A was ignoring the defendant. On
February 7, 2012, the victim started a conversation with
A via text messages concerning the change in her rela-
tionship with the defendant. In those communications,
A told the victim that the defendant had molested her.
The victim also revealed that the defendant had
molested her, and the victim encouraged A to tell
their mother.
Shortly after this conversation, the victim told M that
A had been abused by the defendant. Upon learning
about the abuse, M contacted A’s therapist, Mary Mer-
cado, who reported the abuse to the Department of
Children and Families (department). The department
referred the case to the Hartford Police Department,
and Detective Frank Verrengia investigated the case.
The victim and A both participated in forensic inter-
views in March, 2012. The victim disclosed her abuse
during the forensic interview on March 8, 2012. Follow-
ing an investigation, the police arrested the defendant
on April 18, 2013. The case involving A, however, was
administratively closed in May, 2013.
The state charged the defendant with one count of
sexual assault in the first degree, one count of attempt
to commit sexual assault in the first degree, and one
count of risk of injury to a child. At trial, the defendant’s
theory of defense was that the victim and her sister
both fabricated the allegations of sexual abuse. Specifi-
cally, he claimed that they made these false allegations
in retaliation for his having hit their mother during the
restaurant incident, and for withdrawing all financial
support from the family after moving out of the house.
The jury found the defendant guilty on all counts. The
court accepted the verdict, rendered a judgment of con-
viction, and sentenced the defendant to a total effective
sentence of forty-five years imprisonment, execution
suspended after thirty-three years, with twenty-five
years of probation. This appeal followed.
I
The defendant first claims that the trial court abused
its discretion by permitting the state to introduce evi-
dence regarding uncharged sexual misconduct involv-
ing A, the defendant’s biological daughter. We are
not persuaded.
The following additional facts and procedural history
are relevant to our discussion. Prior to trial, the state
filed a ‘‘notice of other evidence’’ detailing the expected
testimony of A regarding three incidents of the defen-
dant’s prior uncharged sexual misconduct with respect
to her. The defendant filed a motion in limine seeking
to preclude A’s testimony concerning uncharged sexual
misconduct, and the court held a hearing outside the
presence of the jury.
At the hearing, A testified that the defendant began
abusing her when she was eleven years old, approxi-
mately four or five years after the sexual abuse of the
victim.3 The first incident occurred while the defendant
still was living in the family’s house in Hartford. A was
talking to the defendant in his bedroom when he started
to tongue kiss her. The defendant removed her shirt
and continued kissing her, but she was able to push
him off of her. She put her shirt back on and left the
bedroom. The second incident occurred approximately
one week later. This time the defendant attempted to
remove A’s shirt and touch her breasts at the family
home. A was able to get away from him because her
sister-in-law arrived at the house and interrupted him.
The third incident occurred after the defendant had
moved out of the family home to his own apartment.
Again, the defendant started by tongue kissing her, and,
then, he removed her shirt. The defendant was trying
to touch her vagina and breasts, despite A’s attempts to
push him off of her. During this incident, the defendant
attempted to get undressed while he continued touching
A, until she suggested that they go to the movies in
order to get out of the house.
After hearing argument from both the state and the
defendant, the court issued an oral decision on the
motion in limine. The court ruled that A’s testimony was
admissible. The court found that there were a number
of similarities between the uncharged conduct and the
charged offense, namely, that A was approximately the
same age as was the victim at the time of the alleged
abuse, that the sisters looked very similar physically,
that the defendant was in a position of authority over
both girls, and that the pattern of the conduct that began
with kissing and progressed to touching and disrobing
was consistent. Finally, the court also concluded that
the evidence was more probative than prejudicial.
Following the court’s ruling on the uncharged mis-
conduct, the jury heard A’s testimony with regard to
the three instances of sexual abuse perpetrated by the
defendant. At the conclusion of her testimony, the court
issued a limiting instruction to the jury. Also, in its final
charge to the jury, the court specifically explained that
‘‘evidence of the defendant’s commission of another
offense or offenses is admissible and may be considered
by you for its bearing on any propensity or tendency
to engage in criminal sexual behavior. However, evi-
dence of another offense on its own is not sufficient
to prove the defendant guilty of the crimes charged in
the Information.’’
We begin by setting forth the applicable standard of
review and legal principles that govern our analysis of
the defendant’s claim. ‘‘The admission of evidence of
. . . uncharged misconduct is a decision properly
within the discretion of the trial court. . . . [E]very
reasonable presumption should be given in favor of the
trial court’s ruling. . . . [T]he trial court’s decision will
be reversed only where abuse of discretion is manifest
or where an injustice appears to have been done. . . .
[T]he burden to prove the harmfulness of an improper
evidentiary ruling is borne by the defendant . . . [who]
must show that it is more probable than not that the
erroneous action of the court affected the result.’’
(Internal quotation marks omitted.) State v. George A.,
308 Conn. 274, 295, 63 A.3d 918 (2013).
‘‘Generally, [e]vidence of other crimes, wrongs or acts
of a person is inadmissible to prove the bad character,
propensity, or criminal tendencies of that person . . . .
Conn. Code Evid. § 4-5 (a). Exceptions exist, however,
and [e]vidence of other sexual misconduct is admissible
in a criminal case to establish that the defendant had
a tendency or a propensity to engage in aberrant and
compulsive sexual misconduct if certain conditions are
satisfied. Conn. Code Evid. § 4-5 (b).’’ (Internal quota-
tion marks omitted.) State v. Acosta, 326 Conn. 405,
411–12, 164 A.3d 672 (2017).
‘‘Evidence of prior sexual misconduct . . . may be
admitted to prove propensity in a sex crime case pursu-
ant to our Supreme Court’s holding in State v. DeJesus,
288 Conn. 418, 476, 953 A.2d 45 (2008), if (1) the trial
court finds that such evidence is relevant to the charged
crime in that it is not too remote in time, is similar to
the offense charged and is committed upon persons
similar to the prosecuting witness; and (2) the trial court
concludes that the probative value of such evidence
outweighs its prejudicial effect. The trial court must
[also] . . . provide an appropriate limiting instruc-
tion.’’ (Internal quotation marks omitted.) State v. Gon-
zalez, 167 Conn. App. 298, 306–307, 142 A.3d 1227, cert.
denied, 323 Conn. 929, 149 A.3d 500 (2016).
On appeal, the defendant claims that the court
improperly admitted into evidence the uncharged mis-
conduct testimony. Specifically, the defendant argues
that the conduct involving A ‘‘was significantly different
from his conduct with [the victim], and the things they
had in common were merely general similarities that
occur in the majority of sexual assault cases.’’ The
defendant further argues that the probative value of
A’s testimony did not outweigh its prejudicial effect.
We disagree.
The first prong in our relevancy analysis requires
that we evaluate the time between the charged and
uncharged misconduct. Here, although the sexual abuse
of the victim occurred approximately four or five years4
prior to the abuse of A, a gap in time is not dispositive
in our analysis. See, e.g., State v. Antonaras, 137 Conn.
App. 703, 717, 49 A.3d 783 (‘‘[e]ven a relatively long
hiatus between the charged and uncharged misconduct
. . . is not, by itself, determinative . . . especially
when there are distinct parallels between the prior mis-
conduct and the charged misconduct’’ [internal quota-
tion marks omitted]), cert. denied, 307 Conn. 936, 56
A.3d 716 (2012). In fact, this court has concluded that
a gap of twelve years between charged and uncharged
misconduct; id., 716; was ‘‘not too remote to render
the uncharged misconduct irrelevant to prove that the
defendant had a propensity to engage in the charged
abuse, particularly in light of the other two prongs.’’
Id., 717. Therefore, the gap of four or five years, in
the circumstances of this case, does not render the
uncharged misconduct too remote in time.
As to the second prong of our relevancy analysis,
namely, the similarity of the uncharged misconduct to
the charged offense, the defendant argues that the con-
duct alleged by A is dissimilar both in frequency and
severity to the charged offense. The defendant specifi-
cally claims that whereas A testified that he had
molested her on three separate occasions, the victim
recounted only one incident.5 Also, the defendant claims
that the conduct involved in the charged offense was
more severe than the uncharged conduct because it
involved cunnilingus and attempted vaginal penetra-
tion, rather than only ‘‘kissing and touching’’ A. We are
not persuaded.
‘‘It is well established that the victim and the conduct
at issue need only be similar—not identical—to sustain
the admission of uncharged misconduct evidence. . . .
Additionally, differences in the severity of misconduct
may not illustrate a behavioral distinction of any signifi-
cance when a victim rebuffs or reports the misconduct.’’
(Citation omitted; internal quotation marks omitted.)
State v. Acosta, supra, 326 Conn. 416.
‘‘With respect to the similarity of the charged and
uncharged misconduct, this court has repeatedly recog-
nized that it need not be so unusual and distinctive as
to be like a signature . . . . Rather, the question is
whether the evidence is sufficiently similar to demon-
strate a propensity to engage in the type of aberrant
and compulsive criminal sexual behavior with which
[the defendant] . . . [was] charged.’’ (Citation omitted;
internal quotation marks omitted.) State v. Devon D.,
321 Conn. 656, 668, 138 A.3d 849 (2016).
In the present case, the charged and uncharged mis-
conduct are sufficiently similar to be relevant. The inci-
dents all occurred in the defendant’s bedroom when he
was alone with each girl. In each instance of abuse, the
defendant began by kissing the girls before undressing
them. The defendant attempted to touch each girl’s
breasts and vagina. A testified that she attempted to
push the defendant off of her on each occasion that he
kissed and touched her, and, on one occasion, the abuse
only stopped because A’s sister-in-law arrived at the
defendant’s house and interrupted the incident.
Although A did not claim that the defendant performed
cunnilingus during any of the incidents, or that he
attempted to vaginally penetrate her, we conclude that
this does ‘‘not illustrate a behavioral distinction of any
significance’’ under these circumstances. (Internal quo-
tation marks omitted.) State v. Acosta, supra, 326 Conn.
416. Indeed, the defendant’s assaults on A were substan-
tially similar to, and mirrored, the initial stages of the
assault on the victim. See State v. Barry A., 145 Conn.
App. 582, 593, 76 A.3d 211, cert. denied, 310 Conn. 936,
79 A.3d 889 (2013). Also, this court has stated that ‘‘[a]n
escalation of sexual assault does not deprive the state
of the ability to present the uncharged misconduct.’’
Id. Furthermore, because A rebuffed the defendant’s
misconduct, the difference in severity does not present
a significant behavioral distinction. Thus, under these
circumstances, the court properly concluded that the
defendant’s conduct was sufficiently similar.
Regarding the third and final relevancy prong, the
similarity between the witness and the victim, the defen-
dant argues that ‘‘there is a qualitative difference
between [the] defendant sexually abusing his own bio-
logical daughter and abusing someone unrelated to
[him].’’ We disagree.
First, the trial court specifically noted that the two
girls were near the same age when the abuse occurred,
they are ‘‘startlingly similar in appearance,’’ and the
defendant was a parental figure to both girls. Second,
the defendant had lived with the victim since she was
approximately five or six years old, and he was regarded
as her stepfather. Indeed, he considered her to be his
stepdaughter, and she considered him to be her stepfa-
ther. Considering the similarities of the two girls in this
case, and the nature of the defendant’s relationship
with each girl, it is insignificant that the victim was his
stepdaughter rather than his biological daughter. See
State v. Barry A., supra, 145 Conn. App. 584, 593 (wit-
ness and victim similar despite fact that victim was
defendant’s adopted child and witness was defendant’s
biological daughter).
Having concluded that the trial court properly found
the uncharged misconduct evidence was relevant under
the DeJesus factors, we consider whether the trial court
properly concluded that its probative value was not
outweighed by its prejudicial effect. The defendant
claims that the probative value of the uncharged mis-
conduct involving A was outweighed by its prejudicial
effect. Specifically, the defendant argues that A’s testi-
mony involved incest and, therefore, it was ‘‘even more
egregious than his conduct involving [the victim].’’
We disagree.
‘‘We previously have held that the process of balanc-
ing probative value and prejudicial effect is critical to
the determination of whether other crime[s] evidence
is admissible. . . . At the same time, however, we . . .
do not . . . requir[e] a trial court to use some talis-
manic phraseology in order to satisfy this balancing
process. Rather . . . in order for this test to be satis-
fied, a reviewing court must be able to infer from the
entire record that the trial court considered the prejudi-
cial effect of the evidence against its probative nature
before making a ruling. . . . In conducting this balanc-
ing test, the question before the trial court is not
whether [the evidence] is damaging to the defendant
but whether [the evidence] will improperly arouse the
emotions of the jur[ors].’’ (Citation omitted; internal
quotation marks omitted.) State v. Devon D., supra, 321
Conn. 673. Additionally, ‘‘[p]roper limiting instructions
often mitigate the prejudicial impact of evidence of
prior misconduct. . . . Furthermore, a jury is pre-
sumed to have followed a court’s limiting instructions,
which serves to lessen any prejudice resulting from the
admission of such evidence.’’ (Internal quotation marks
omitted.) State v. Morales, 164 Conn. App. 143, 180,
136 A.3d 278, cert. denied, 321 Conn. 916, 136 A.3d
1275 (2016).
Upon our review of the record, it is evident that
the trial court considered the prejudicial effect of the
evidence. In its oral decision, the court noted that the
evidence ‘‘is not shocking [and] doesn’t unduly delay
the trial. . . . [W]hile it’s not helpful to the defendant,
the probative value here strongly outweighs the prejudi-
cial effect.’’ We agree and conclude that, although the
uncharged misconduct evidence was not helpful to the
defendant, it was not the type of evidence that improp-
erly would arouse the emotions of the jury. In light of
the fact that the victim was regarded as the defendant’s
stepdaughter, the defendant’s assertion that because
A’s testimony involved incest, the uncharged miscon-
duct was even more egregious than the charged crime,
is unavailing. Moreover, the uncharged misconduct was
less severe than the charged misconduct—i.e., groping
versus cunnilingus and attempted vaginal penetration.
Furthermore, at the conclusion of A’s testimony, the
court issued a limiting instruction explaining to the jury
the appropriate use of uncharged misconduct evidence.
Additionally, the court issued another limiting instruc-
tion in its final charge to the jury at the close of the
evidence. The limiting instructions minimized any prej-
udicial effect of this evidence. Accordingly, we con-
clude that the trial court did not abuse its discretion
in permitting A to testify regarding the uncharged sex-
ual misconduct.
II
The defendant next claims that the prosecutor com-
mitted several improprieties during cross-examination
and closing argument that deprived him of a fair trial.
Specifically, he claims that the prosecutor improperly
(1) asked the defendant to comment on other witnesses’
credibility in violation of State v. Singh, 259 Conn. 693,
793 A.2d 226 (2002), (2) referred to facts not in evidence,
and (3) appealed to the jury’s emotions, passions, and
prejudices. We will address each of these claims in turn.
Before addressing each specific claim of impropriety,
the following general principles guide our analysis. ‘‘In
analyzing claims of prosecutorial impropriety, we
engage in a two step analytical process. . . . We first
examine whether prosecutorial impropriety occurred.’’
(Internal quotation marks omitted.) State v. Carlos E.,
158 Conn. App. 646, 659-60, 120 A.3d 1239, cert. denied,
319 Conn. 909, 125 A.3d 199 (2015). ‘‘Second, if an impro-
priety 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 fairness of the
trial. Whether that impropriety was harmful and thus
caused or contributed to a due process violation
involves a separate and distinct inquiry.’’ (Citations
omitted; internal quotation marks omitted.) Id., 660.
‘‘The defendant bears the burden of satisfying both
of these analytical steps. . . . In evaluating whether a
defendant has carried that burden, we recognize that
prosecutorial inquiries or comments that might be ques-
tionable when read in a vacuum often are, indeed,
appropriate when review[ed] . . . in the context of the
entire trial.’’ (Citation omitted; internal quotation marks
omitted.) State v. O’Brien-Veader, 318 Conn. 514, 524,
122 A.3d 555 (2015).
A
The defendant first claims that the prosecutor
improperly asked him to comment on the veracity of
other witnesses during cross-examination in violation
of State v. Singh, supra, 259 Conn. 693. The state argues
that the prosecutor ‘‘did not ask the defendant to com-
ment on the veracity of other witnesses, but, rather,
[she] rhetorically challenged the defendant’s testimony
denying the accusations, and suggesting that the girls
may have been motivated to falsely accuse him.’’ We
agree with the defendant.
The following additional facts are relevant to our
consideration of the defendant’s claim. At trial, the
defendant testified on his own behalf. On both direct
examination and cross-examination, the defendant
denied the allegations made by both A and the victim.
The prosecutor asked the defendant: ‘‘But you have no
explanation for these allegations that [A] is saying that
you sexually molested her, the only explanation you
have other than it’s the truth, is that you left the home
and she might have been upset about that?’’ The prose-
cutor further inquired, ‘‘but you know the girls are tell-
ing the truth, don’t you?’’ The defendant responded by
stating: ‘‘They’re lying.’’
We begin by recognizing that ‘‘[i]t is well established
that questions seeking a witness’ opinion regarding the
veracity of another witness are barred. . . . The under-
lying basis for such a rule is to prohibit a fact witness
from invading the jury’s exclusive function to determine
the credibility of witnesses. . . . [Q]uestions of this
sort . . . create the risk that the jury may conclude
that, in order to acquit the defendant, it must find that
the witness has lied. . . . This prohibition includes
questions that ask whether another witness is lying,
mistaken, wrong, or incorrect.’’ (Citations omitted;
internal quotation marks omitted.) State v. Rios, 171
Conn. App. 1, 31, 156 A.3d 18, cert. denied, 325 Conn.
914, 159 A.3d 232 (2017).
A review of the transcript demonstrates that the pros-
ecutor’s questions sought the defendant’s opinion
regarding the veracity of A and the victim. Although
framed rhetorically, the prosecutor still asked the
defendant to comment on the truth of the testimony
given by the victim and A. This is precisely the line of
questioning that is prohibited by Singh. Accordingly,
we conclude that the prosecutor’s questions were
improper.
B
The defendant next claims that on multiple occasions
the prosecutor improperly referred to facts not in evi-
dence. Specifically, he claims that the prosecutor
referred to facts not in evidence (1) during cross-exami-
nation of the defendant and (2) during closing rebuttal
argument. We disagree.
1
The following additional facts are relevant to the
defendant’s claim. The victim testified that the defen-
dant ‘‘did something near the side of the bed’’ before
attempting to ‘‘put his private’’ in her. During cross-
examination of the defendant, regarding his alleged con-
duct during the incident described by the victim, the
prosecutor asked: ‘‘And you went to the cabinet to get
a condom?’’ Defense counsel did not object to the prose-
cutor’s question and the defendant replied, ‘‘Nope.’’ The
prosecutor did not mention this colloquy or a condom
in closing argument.
The defendant argues that ‘‘[b]y improperly injecting
the idea of a condom without any such evidence, the
prosecutor made it appear as though [the] defendant
did intend to have vaginal intercourse with the victim,
thereby improperly bolstering her testimony.’’ The state
argues that this claim is ‘‘unreviewable because it is an
evidentiary claim masquerading as a claim of prosecu-
torial impropriety.’’ We agree with the state.
‘‘In State v. Stevenson, [269 Conn. 563, 572–73, 849
A.2d 626 (2004)], our Supreme Court held that, in cases
of claimed prosecutorial impropriety, 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. . . . Such a claim of prosecutorial impropriety
must, however, be premised on conduct that is of truly
constitutional magnitude, and not mere evidentiary con-
duct clothed in constitutional garb.’’ (Footnote omitted;
internal quotation marks omitted.) State v. Alex B., 150
Conn. App. 584, 588, 90 A.3d 1078, cert. denied, 312
Conn. 924, 94 A.3d 1202 (2014).
Essentially, the defendant’s claim is that the prosecu-
tor committed an impropriety by asking an improper
question. Although framed as prosecutorial impropri-
ety, upon further review, we conclude that this claim
is purely evidentiary.
First, defense counsel did not object to the prosecu-
tor’s question, and, therefore, any evidentiary claim
regarding the question is unpreserved. Second, the
defendant has not alleged that the prosecutor deliber-
ately violated a court order, which should be reviewed
as prosecutorial impropriety. See State v. Williams, 102
Conn. App. 168, 176, 926 A.2d 7 (‘‘appellate courts of
this state have held that evidentiary violations of a court
order should be reviewed as prosecutorial [impropri-
ety], not evidentiary errors’’), cert. denied, 284 Conn.
906, 931 A.2d 267 (2007). Finally, the consequence of
defense counsel’s failure to object is indicative of the
evidentiary nature of the defendant’s claim of prosecu-
torial impropriety. If the defendant had objected, then
the prosecutor would have had an opportunity to assert
a good faith basis for asking the question.6 See State
v. Robles, 103 Conn. App. 383, 391 n.5, 930 A.2d 27
(‘‘[w]ithout trial objection, the prosecutor was denied
the opportunity to present to the court the basis for
questioning the witness’’), cert. denied, 284 Conn. 928,
934 A.2d 244 (2007).
‘‘As our Supreme Court has repeatedly held, [a]ppel-
late review of prosecutorial [impropriety] claims is not
intended to provide an avenue for the tactical sand-
bagging of our trial courts, but rather, to address gross
prosecutorial improprieties that clearly have deprived
a criminal defendant of his right to a fair trial.’’ (Internal
quotation marks omitted.) State v. Ampero, 144 Conn.
App. 706, 723, 72 A.3d 435, cert. denied, 310 Conn. 914,
76 A.3d 631 (2013). Consistent with well established
precedent, we decline to review the defendant’s unpre-
served evidentiary claim under the prosecutorial impro-
priety framework. See State v. Golding, supra, 213
Conn. 241 (‘‘once identified, unpreserved evidentiary
claims masquerading as constitutional claims will be
summarily dismissed’’).
2
The defendant also claims that the prosecutor
improperly referred to facts not in evidence during clos-
ing rebuttal argument. The defendant essentially argues
that the prosecutor mischaracterized the evidence by
implying that the defendant never told the police that
the allegations were false. We disagree.
The record reveals the following additional relevant
facts and procedural history. Detective Frank Verrengia
was the lead investigator for the cases involving A and
the victim. Approximately three months after the girls’
initial complaints, Verrengia interviewed the defendant
at his attorney’s office. Verrengia testified at the trial
and, during his testimony, defense counsel attempted
to elicit from him whether the defendant had denied
the allegations made by A and the victim during that
initial interview. The prosecutor objected on hearsay
grounds and the court sustained the objection.
During the defendant’s testimony, defense counsel
inquired of the defendant whether he had denied the
allegations during the interview with Verrengia, and the
defendant responded: ‘‘I answered all of his questions.’’
When the defendant was asked how he felt when he
learned about the accusations, he said: ‘‘My world col-
lapsed. I was angry, I was stressed. I couldn’t believe
my family would do something like this to me, my own
daughter, my stepdaughter as well.’’
On cross-examination, the prosecutor repeatedly
asked the defendant whether he was able to provide
Verrengia with an explanation for the allegations of
sexual abuse, and he claimed that he told the detective
that the victim likely was mad at him for moving out
of the house and refusing to provide financial support to
M.7 Following the defendant’s testimony, the prosecutor
called Verrengia as a rebuttal witness. The prosecutor
asked whether the defendant provided an explanation
for why A would have accused him of sexual abuse,
and Verrengia responded that he did not.
Defense counsel repeatedly referred to the timing
of the girls’ accusations of sexual assault against the
defendant in relation to the domestic violence incident.
In particular, during his cross-examination of M,
defense counsel emphasized the fact that the allegations
of sexual assault only surfaced a mere fifty-four days
after he had been arrested for hitting M, despite the
fact that the sexual assaults allegedly had occurred
several years prior to his assault of M. He asked M,
‘‘[i]s the reason these allegations came out fifty-four
days after [the defendant] gets arrested for hitting you
because you were mad at him?’’ Then, in his closing
argument, defense counsel argued that the girls’ allega-
tions were fabricated and that they only made these
claims of sexual abuse after the domestic violence inci-
dent with M on December 18, 2011. He also referred to
the interview with Verrengia, claiming that the defen-
dant ‘‘denied the allegations and that was it.’’ Defense
counsel further argued: ‘‘If you didn’t do something,
you say I didn’t do it, this is false, and that’s what he did.’’
The prosecutor, in her rebuttal argument, responded
to defense counsel’s closing argument, arguing that the
defendant could have said ‘‘this is all made up, [M]
made these kids make this up because I hit her. He
doesn’t say any of that. He doesn’t come up with any
reason why [A] would say this at all and what he says
with [the victim] is he says she’s mad that I left the
house.’’ In her final remarks, the prosecutor com-
mented: ‘‘Wouldn’t you expect somebody who is falsely
accused of this to say I cannot believe these children
said this about me, I cannot believe [M] put them up
to this? But that is not what he says when he’s inter-
viewed by the police and it’s not what he says in the
courtroom.’’
The defendant contends that the prosecutor mischar-
acterized the evidence because there was no evidence
that he did not say to Verrengia that the allegations
were made up. Moreover, according to the defendant,
the prosecutor’s comments ‘‘injected extraneous mat-
ters into the trial by suggesting that in her experience,
that was how innocent people behaved.’’ The state
responds that the challenged remarks had an adequate
basis in the evidence and were intended to challenge
the defendant’s theory, raised for the first time at trial,
that M had encouraged the girls to make the accusations
of sexual abuse. We agree with the state.
‘‘Claims involving prosecutorial impropriety during
the course of closing arguments 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 argu-
ment.’’ (Internal quotation marks omitted.) State v.
LaVoie, 158 Conn. App. 256, 275-76, 118 A.3d 708, cert.
denied, 319 Conn. 929, 125 A.3d 203 (2015), cert. denied,
U.S. , 136 S. Ct. 1519, 194 L. Ed. 2d 604 (2016).
‘‘A prosecutor, in fulfilling his duties, must confine
himself 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. . . . [T]he state may [however]
properly respond to inferences raised by the defen-
dant’s closing argument. . . . Furthermore, [a] prose-
cutor may invite the jury to draw reasonable inferences
from the evidence; however, he or she may not invite
sheer speculation unconnected to evidence.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Fasanelli, 163 Conn. App. 170, 188-89, 133 A.3d 921
(2016).
A prosecutor also is not permitted ‘‘to comment
unfairly on the evidence adduced at trial so as to mislead
the jury. . . . We certainly do not condone paraphras-
ing or embellishing on a witness’ testimony, but we also
recognize that the parties are allowed a certain degree
of latitude to express their views of what evidence was
presented at trial.’’ (Internal quotation marks omitted.)
State v. D’Haity, 99 Conn. App. 375, 388, 914 A.2d 570,
cert. denied, 282 Conn. 912, 924 A.2d 137 (2007).
Defense counsel directed the jury to the defendant’s
interview with Verrengia, claiming that the defendant
denied the allegations in that interview. He argued that
‘‘if you didn’t do something, you say you didn’t do it,
this is false, and that’s what he did.’’ In reiterating the
defense’s theory of the case, he argued: ‘‘[I]t happened
four or five years ago, but fifty-three days . . . after
[the defendant] hits [M] the allegations come out. After
the allegations come out, the cat’s out of the bag, you
can’t uncork that genie, it’s out there.’’
In response, the prosecutor challenged the defen-
dant’s theory by also directing the jury to the defen-
dant’s interview with Verrengia. The prosecutor invited
the jury to draw a reasonable inference from the defen-
dant’s failure to mention the domestic violence incident
to Verrengia, and his inability to provide a reason to
explain A’s allegations. That inference was that because
he did not tell Verrengia about M’s motive to encourage
the girls to make the allegations, the defendant never
said to Verrengia: ‘‘[M] made these kids make this up
because I hit her.’’
Here, the prosecutor’s comments regarding what the
defendant did not say during the interview with Verren-
gia did not ‘‘invite sheer speculation unconnected to
the evidence.’’ (Internal quotation marks omitted.) State
v. Fasanelli, supra, 163 Conn. App. 189. The jury heard
evidence from Verrengia that the defendant was unable
to provide a reason to Verrengia for A’s accusations.
Additionally, the defendant testified that he did not tell
Verrengia that he had been arrested for hitting the girls’
mother. The prosecutor argued that if the defendant
believed that M encouraged the girls to fabricate the
allegations of abuse as a response to the domestic vio-
lence incident, then he would have told Verrengia about
the incident and he would have offered that explanation
for the allegations during that initial interview. His own
acknowledgement that he did not tell Verrengia about
hitting M, and that he was unable to provide an explana-
tion for why A would make up these allegations, support
the inference that he did not say to Verrengia that these
allegations are made up because he hit M.
Our review of the trial transcript convinces us that the
prosecutor’s remarks were not improper. Presumably,
defense counsel did not believe the remarks were
improper because he did not object at the time that the
remarks were made. See State v. Carlos E., supra, 158
Conn. App. 660 (‘‘failure to object to the prosecutor’s
argument when it was made suggests that defense coun-
sel did not believe that it was [improper] in light of the
record of the case at the time’’ [internal quotation marks
omitted]). The defendant focuses on portions of the
prosecutor’s comments in isolation. When the closing
arguments are examined in full, however, it is clear that
the prosecutor’s remarks simply invited the jury to draw
a reasonable inference from the evidence presented at
trial. Specifically, the prosecutor sought to have the
jury infer from the defendant’s failure to tell Verrengia
about the girls’ motive to falsely accuse him, that
defense counsel’s argument that M encouraged the girls
to make these accusations was not the truth. Rather,
it was simply a trial strategy developed by the defen-
dant. Just as defense counsel offered his view of the
testimony regarding the defendant’s interview with Ver-
rengia, so too did the prosecutor. Accordingly, we con-
clude that the prosecutor did not improperly refer to
facts not in evidence during rebuttal argument.
C
The defendant next claims that the prosecutor
appealed ‘‘to the prejudices of the jurors against non-
English speaking persons and persons of a different
ethnicity through her gratuitous questioning of [the]
defendant.’’ He argues that the prosecutor’s questioning
‘‘injected [the] defendant’s ethnicity into the case and
used it in an attempt to inflame the jurors against him
. . . .’’ The defendant’s claim refers to two separate
portions of the prosecutor’s cross-examination of the
defendant, and a portion of the prosecutor’s closing
rebuttal argument. We address each in turn.8
1
First, the defendant argues that the prosecutor’s ques-
tion regarding Puerto Rico, and subsequent reference
to Puerto Rico during rebuttal argument, improperly
appealed to the jury’s racial prejudices. Specifically,
he argues that ‘‘[i]t was particularly offensive that the
prosecutor asked [the] defendant if he had been taught
in Puerto Rico that it was [alright] to sexually assault
a young girl and [then argued in closing] ‘that even he
recognized’ it was inappropriate.’’ We disagree.
The following additional facts are relevant to this
aspect of the defendant’s claim. During the prosecutor’s
cross-examination of the defendant, with the assistance
of a Spanish interpreter, the following colloquy
occurred:
‘‘[The Prosecutor]: You are originally from Puerto
Rico?
‘‘[The Defendant]: Yes.
‘‘[The Prosecutor]: And you are not say[ing] that in
Puerto Rico that behavior of licking a girl’s breasts or
genitals would be considered okay?’’
At this point, defense counsel objected claiming that
the question is prejudicial, and the court instructed the
prosecutor that the question should be rephrased. The
prosecutor then continued:
‘‘[The Prosecutor]: Where you [are] originally from,
were you taught that it was okay for a male to lick [the]
breasts or genitals of a twelve year old girl?
‘‘[The Defendant]: Can the question be repeated?
‘‘[The Prosecutor]: Sure. Where you are originally
from, you were not taught that it is okay for an adult
male to lick the genitals or the breasts of a twelve year
old girl?
‘‘[The Defendant]: They told me that that was legal.
‘‘[The Prosecutor]: They told you that was legal?
‘‘[The Defendant]: Yes.’’
Defense counsel objected, arguing that the defen-
dant’s answer was not translated properly. The court
instructed the prosecutor to ask the question again.
‘‘[The Prosecutor]: Where you were from originally,
were you taught that it was okay for an adult male to
lick the breasts or genitals of a twelve year old girl?
‘‘[The Defendant]: No.’’
The prosecutor returned to this exchange during
rebuttal argument, explaining to the jury that she ‘‘was
trying to elicit from the defendant . . . that in any cul-
ture where [he has] been, it hasn’t been okay for an
adult to do that. That even he recognizes that it’s not
okay for an adult to basically have this kind of sexual
contact with a minor.’’
In evaluating the defendant’s claim, we are mindful
that ‘‘the line between comments that risk invoking the
passions and prejudices of the jurors and those that
are permissible rhetorical flourishes is not always easy
to draw. The more closely the comments are connected
to relevant facts disclosed by the evidence, however,
the more likely they will be deemed permissible.’’ State
v. Albino, 312 Conn. 763, 773, 97 A.3d 478 (2014).
Contrary to the defendant’s contention, the prosecu-
tor’s questions did not improperly inject the defendant’s
ethnicity into the trial. Although we recognize, as did
the trial court, that the prosecutor’s question could have
been asked without the reference to Puerto Rico, we
do not conclude that such a reference indicates an
improper appeal to the passions or prejudices of the
jury. The defendant testified on direct examination that
he was born and raised in Puerto Rico and lived there
until 1990, when he was approximately twenty-one
years old. Thus, there was evidence that the defendant
was born and raised in Puerto Rico, which the prosecu-
tor was permitted to reference while exploring the
defendant’s background and his views on relationships
with minors. The prosecutor was not focused on Puerto
Rico; she merely was making the point that having sex-
ual relations with a twelve year old girl is impermissible
in all of the United States. Again, the prosecutor cer-
tainly did not have to reference Puerto Rico in order
to make this point, and, although the reference may
even have been ill-advised, ‘‘[w]e cannot . . . place the
weight of unconstitutionality on [this reference], taken
in [its] proper context . . . .’’ State v. Heredia, 253
Conn. 543, 560, 754 A.2d 114 (2000). Moreover, ‘‘[w]e
do not assume that every statement made by the prose-
cutor was intended to have its most damaging mean-
ing.’’ (Internal quotation marks omitted.) State v. James
E., 154 Conn. App. 795, 821, 112 A.3d 791 (2015), aff’d,
327 Conn. 212, 173 A.3d 380 (2017).
For similar reasons, the prosecutor’s subsequent ref-
erence to this line of questioning during closing argu-
ment was not improper. ‘‘[B]ecause closing arguments
often have a rough and tumble quality about them, some
leeway must be afforded to the advocates in offering
arguments to the jury . . . . [I]n addressing the jury,
[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.’’ (Internal quotation marks
omitted.) State v. Elias V., 168 Conn. App. 321, 347, 147
A.3d 1102, cert. denied, 323 Conn. 938, 151 A.3d 386
(2016). Accordingly, we conclude that the prosecutor’s
remark, which was designed to elicit from the defendant
that ‘‘even he recognizes that it’s not okay for an adult
to do that’’ does not rise to the level of prosecutorial
impropriety.9 It was a rhetorical flourish, expressed in
the heat of argument. Cf. State v. Warholic, 278 Conn.
354, 374–75, 897 A.2d 569 (2006) (concluding that Appel-
late Court properly determined prosecutor’s comments
that characterized defendant as child molester and
appeals to jury’s fears that child molesters are ‘‘ ‘out
there’ ’’ and ‘‘ ‘among us’ ’’ were improper).
2
The defendant also claims that the prosecutor
appealed to the passions and prejudices of the jury
against non-English speaking persons. Specifically, the
defendant argues that his ability to speak English was
not at issue in this case and, therefore, ‘‘the prosecutor’s
persistent cross-examination and closing argument [on
his English speaking ability] was an implicit appeal to
the racial prejudices and emotions of the jurors.’’ The
defendant contends that the prosecutor effectively
diverted the jurors’ attention away from the relevant
issues and invited the jury to decide the case based on
their prejudices and emotions. We disagree.
The following additional facts are relevant to the
defendant’s claim. From his initial court appearance,
the defendant required the services of an interpreter.
On direct-examination, defense counsel asked the
defendant where he was born and whether he spoke
English. The defendant responded that he was born in
Puerto Rico and that he does not speak English. The
defendant also testified that at the time that the victim
claimed the sexual assault occurred, he would not have
been home because he was working a second job. There
is nothing in the record that suggests that the defendant
had claimed this alibi prior to his testimony at trial.
During cross-examination, the prosecutor questioned
the defendant regarding his ability to speak English.
The prosecutor asked the defendant approximately
fourteen distinct questions concerning his ability to
speak and understand English.10
Our review of the record reveals that the prosecutor’s
questions, when viewed in the context of the defen-
dant’s entire testimony, were not improper. On direct
examination, defense counsel asked the defendant if
he speaks English. The defendant answered that he did
not and the prosecutor explored this answer during
cross-examination. During closing argument, the prose-
cutor relied on the defendant’s subsequent admission
that he, in fact, spoke some English in order to argue
that he was capable of denying the allegations and
claiming that M put the girls up to making the allegations
against him at the beginning of the investigation, as
opposed to offering this explanation for the first time
at trial.
We agree with the trial court’s conclusion that the
prosecutor’s inquiry was relevant and appropriate.
Although the prosecutor asked several questions
regarding the defendant’s ability to speak English, we
note that the court overruled several of defense coun-
sel’s objections during cross-examination.11 When
defense counsel objected on the basis of relevance, the
prosecutor explained that her inquiry was directed at
the nature of the interview in order to address what
the defendant told Verrengia during that initial inter-
view; the court agreed, and overruled the objection.
Our resolution of this claim is informed by our
Supreme Court’s decision in State v. Heredia, supra,
253 Conn. 543. In Heredia, our Supreme Court con-
cluded that the prosecutor’s references to the defen-
dant’s ethnicity and ability to speak English did not
constitute prosecutorial impropriety. Id., 559–60, 562–
63. The assailant spoke English during the commission
of the crime and the defendant claimed that he did not
speak English and, therefore, he was not the assailant.
Id., 555–56. The court reasoned that the prosecutor’s
comments were ‘‘appropriately based on the evidence
regarding a contested issue in the case . . . .’’ Id., 563.
The court, however, cautioned that a prosecutor is not
‘‘free to focus on [the defendant’s use of an interpreter]
in a manner that was irrelevant to the issues in the case
. . . .’’ Id., 560.
The defendant’s attempt to distinguish the present
case from State v. Heredia, supra, 253 Conn. 543, is
unavailing. The defendant argues that, unlike in Here-
dia, his ethnicity and ability to speak English were not
issues in the present case. According to the defendant,
his ability to speak English was not relevant because he
did not claim that he could not understand the officer’s
questions or that he was unable to answer questions
due to his inability to speak English. Our review of the
record contradicts the defendant’s claims.
Although the defendant argues that his ability to
speak English was not an issue in this case, his ability
to communicate with Verrengia was relevant to several
of his claims at trial. First, the defendant testified that
he did not speak English. In fact, he claimed to have
difficulty answering all of Verrengia’s questions, stating:
‘‘There were things I couldn’t answer because I didn’t
know what he was saying because my English is not
that good.’’ Second, he attempted to establish an alibi
for the first time at trial, testifying that he was working
two jobs at the time the alleged abuse occurred, despite
never revealing this to Verrengia during the initial inves-
tigation. Finally, despite his failure to mention the
domestic violence incident to Verrengia, the defense’s
theory of the case was that these allegations simply
were retaliation for that incident. Thus, the prosecutor’s
questions regarding the defendant’s ability to speak
English were relevant to her argument that he was
perfectly capable of telling Verrengia these details dur-
ing the initial interview. In other words, the prosecutor
sought to establish that the defendant spoke and under-
stood English well enough to have informed Verrengia
about his alibi, and that the girls had a motive for accus-
ing him of sexual abuse.
Under these circumstances, we do not agree that the
prosecutor’s questions were improper. The questions,
although numerous, were not ‘‘irrelevant to the issues
in the case’’ and there is no indication that prosecutor
attempted to challenge the defendant’s need for the
services of an interpreter.
D
Having concluded in part II A of this opinion that the
prosecutor’s questions that required the defendant to
comment on the veracity of other witnesses’ testimony
were improper, we now must determine whether the
impropriety deprived the defendant of his due process
right to a fair trial.
‘‘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.’’
(Internal quotation marks omitted.) State v. Carlos E.,
supra, 158 Conn. App. 660.
As our Supreme Court recognized in State v. Jones,
320 Conn. 22, 128 A.3d 431 (2015), ‘‘the risk that a
defendant will be prejudiced by a Singh violation may
be especially acute when the state’s case is founded on
the credibility of its witnesses. . . . As the present case
demonstrates, however, that general proposition is not
a universal truth. In a case that pits the testimony of
the defendant against that of the victim, such that the
victim’s version of events is directly at odds with the
defendant’s account of the facts, and there is no way to
reconcile their conflicting testimony except to conclude
that one of them is lying, it is unlikely that asking the
defendant directly whether the victim is lying ever could
be so prejudicial as to amount to a denial of due process.
Cf. State v. Fauci, 282 Conn. 23, 39, 917 A.2d 978 (2007)
(in a case that essentially reduces to which of two
conflicting stories is true, it may be reasonable to infer,
and thus to argue, that one of the two sides is lying
. . .). To be sure, as we explained in State v. Singh,
supra, 259 Conn. 707–10, such questioning is never
appropriate, and we consistently have declined the
state’s invitation to carve out an exception to the prohi-
bition against[questions such as] are they lying . . . in
cases involving pure credibility contests. We have done
so, however, not because we disagreed with the under-
lying rationale for such an exception but, rather,
because of the difficulty of determining, in the midst
of trial, whether the case presents a pure credibility
contest or whether the testimonial discrepancies
between the two witnesses may be explained by reasons
other than perjury or deceit. . . .
‘‘[B]ecause Williams requires that we determine
whether the prosecutorial impropriety prejudiced the
defendant by evaluating the impropriety in the context
of the entire trial, we must consider whether it was
possible for the jury to reconcile the testimony of the
defendant and [the witness on whose credibility the
defendant was asked to comment] without concluding
that one of them was lying. When, as in the present
case, it is not possible to do so, there is no reasonable
possibility that asking the defendant whether the victim
testified truthfully would render the trial so unfair as
to rise to the level of a due process violation because,
in such circumstances, the risks that ordinarily attend
such a question simply are not present.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Jones,
supra, 320 Conn. 45-46.
In the present case, it was not possible for the jury
to reconcile the testimony of the defendant and the
girls. The defendant denied ever touching the girls inap-
propriately and defense counsel argued that the girls
fabricated the allegations. Thus, the defendant’s posi-
tion was that the abuse never occurred. In contrast, the
victim and A testified that the defendant inappropriately
touched them in a sexual manner. There was no forensic
evidence in this case. Therefore, with these two diamet-
rically opposed positions, just as in Jones, the jury was
required to determine which of these two conflicting
stories was the truth and which was a lie. ‘‘Thus, the
answer that the defendant gave in response to the prose-
cutor’s improper . . . question, although irrelevant,
could not have caused the defendant undue harm.’’ Id.,
47. Accordingly, we conclude that the Singh violation
did not deprive the defendant of his due process right
to a fair trial.
III
The defendant’s final claim is that the trial court
improperly increased his sentence in order to penalize
him for invoking his fifth amendment privilege against
self-incrimination when he refused to apologize to the
victims at the sentencing.12 The defendant argues that
the court violated his right to due process by penalizing
him for remaining silent at sentencing. We disagree.
The following additional facts are relevant to this
claim. At the sentencing hearing, the state did not pro-
vide a specific recommendation for a sentence. The
state simply requested a ‘‘significant sentence’’ for the
defendant, while making clear that there was a manda-
tory minimum for the charged offenses. The state also
noted that the defendant’s ‘‘unwillingness to participate
in any sex offender treatment programs or to acknowl-
edge any criminal behavior . . . puts him at a much
higher risk’’ to reoffend.
The defendant was afforded an opportunity to
address the court and present additional mitigating evi-
dence. The court heard from several individuals in sup-
port of the defendant’s good character. One such
individual was the defendant’s current romantic part-
ner, who has a teenage daughter, with whom the defen-
dant had been residing during the proceedings.
Before being sentenced, the defendant engaged in
the following colloquy with the court:
‘‘[The Defendant]: The jurors found me guilty. I am
innocent of these charges presented against me, and I
want to appeal this case.
‘‘The Court: Well I appreciate your position, but in a
case like this, the lifetime effects on the victims can
be lessened if the person who committed these acts,
particularly in a familial relationship, whether father or
stepfather, takes responsibility. I know you wish to
appeal and that does create a dilemma.
‘‘[The Court Interpreter]: Your Honor, may that be
repeated for the interpreter?
‘‘The Court: Well apologizing, admitting what he did,
taking responsibility will help the victims enormously
at least that has been my experience over four decades
in this business. However it puts a crimp in your ability
to appeal, do you understand that?
‘‘[The Defendant]: I did understand. But how would
I say sorry for something that I did not do, these are
just allegations? I love my daughter; I worked really
hard for them. This was hard for me. And I work hard
to support this family, two, three jobs to have our home
and to lose everything because of these allegations it’s
not fair.
‘‘The Court: Well that’s your decision, sir. If you wish
to continue to deny it, that’s your absolute right. The
court will not punish you for that; however, you do
not get any extra credit. Do you have anything else
you wish to say?
‘‘[The Defendant]: No. That’s it for now.’’ (Empha-
sis added.)
Thereafter, the court addressed the defendant and
explained that ‘‘sentencings have to do with [the] four
following considerations: rehabilitation, deterrence,
protection of society, and punishment.’’ The court
acknowledged that the defendant had a positive presen-
tence investigation report and that several people spoke
on his behalf. The court considered the defendant’s
demeanor during the trial and his successful completion
of a family violence education program. The court, how-
ever, repeated that ‘‘in this type of case, it is most helpful
to the victims to have an admission or an apology.’’
Importantly, the court expressed concern that the
defendant was currently living with another woman and
her teenage daughter. After noting that it had ‘‘taken
all these things into account and . . . tried to balance
the seriousness of this offense,’’ the court sentenced
the defendant to a total effective sentence of forty-five
years imprisonment, execution suspended after thirty-
three years, to be followed by twenty-five years of pro-
bation.
We begin by noting that the defendant did not object
to the claimed violation of his fifth amendment rights
at the sentencing hearing. Therefore, this claim is unpre-
served. The defendant’s claim, however, is reviewable
pursuant to State v. Golding, supra, 213 Conn. 239–40,
because the record is adequate for review and the claim
that the defendant was punished for exercising his fifth
amendment right is of constitutional magnitude. There-
fore, we proceed to the third prong of Golding to deter-
mine whether a constitutional violation exists, thereby
depriving the defendant of a fair trial. See id., as modi-
fied by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d
1188 (2015).
We recognize that ‘‘it is clearly improper to increase
a defendant’s sentence based on [his or her] decision
to stand on [his or her] right to put the [g]overnment to
its proof rather than plead guilty . . . . Nevertheless,
a defendant’s general lack of remorse . . . and refusal
to accept responsibility . . . for crimes of which he
was convicted are legitimate sentencing considerations
. . . . [R]eview of claims that a trial court lengthened
a defendant’s sentence as a punishment for exercising
his or her constitutional right to a jury trial should be
based on the totality of the circumstances. . . . [T]he
burden of proof in such cases rests with the defendant.’’
(Citations omitted; internal quotation marks omitted.)
State v. Collymore, 168 Conn. App. 847, 897, 148 A.3d
1059 (2016), cert. granted on other grounds, 324 Conn.
913, 153 A.3d 1288 (2017).
‘‘[A]lthough a court may deny leniency to an accused
who . . . elects to exercise a statutory or constitu-
tional right, a court may not penalize an accused for
exercising such a right by increasing his or her sentence
solely because of that election.’’ (Internal quotation
marks omitted.) State v. Elson, 311 Conn. 726, 762, 91
A.3d 862 (2014).
In the present case, the defendant argues that ‘‘the
court never once mentioned [his] prospects for rehabili-
tation or that the lack of an admission of guilt somehow
showed he had no such prospects. . . . Rather, the
court’s sole concern was how his refusal to admit guilt
would impact [A and the victim].’’ We disagree.
In State v. Huey, 199 Conn. 121, 128, 505 A.2d 1242
(1986), our Supreme Court held that the sentencing
judge was ‘‘justified in considering the defendant’s
denial in evaluating his prospects for rehabilitation, as
one consideration among many, in fashioning the sen-
tence imposed.’’ The defendant attempts to distinguish
the present case from Huey by arguing that the court
did not state specifically that it considered his refusal
to admit guilt as indicative of his lack of rehabilitative
prospects. Although the defendant is correct that the
court did not state this explicitly, the court did acknowl-
edge that rehabilitation is one of the factors to be con-
sidered in fashioning an appropriate sentence.13
Indeed, a review of the sentencing transcript demon-
strates that the court considered legitimate sentencing
factors in determining the length of the sentence. ‘‘The
defendant’s demeanor, criminal history, presentence
investigation report, prospect for rehabilitation and
general lack of remorse for the crimes of which he has
been convicted remain legitimate sentencing considera-
tions.’’ (Internal quotation marks omitted.) State v.
Elson, supra, 311 Conn. 782. The court outlined the
factors that it considered in arriving at the sentence,
focusing particularly on the defendant’s failure to
accept responsibility and his failure to apologize to the
victims.14 See, e.g., State v. Barnes, 33 Conn. App. 603,
610, 637 A.2d 398 (‘‘sentencing judge properly related
the defendant’s refusal to admit responsibility and
claims of innocence to the likelihood of his rehabilita-
tion’’), aff’d, 232 Conn. 740, 657 A.2d 611 (1995).
Moreover, the court expressly stated that it would
not punish the defendant for exercising his ‘‘absolute
right’’ to not admit guilt and appeal his judgment of
conviction, but it would not give him any ‘‘extra credit.’’
The court’s statements comport with the principle that
a court may deny leniency to a defendant for exercising
a constitutional right, but it may not punish him or her
for exercising such a right. See State v. Elson, supra,
311 Conn. 762. The defendant has provided no reason
for this court to doubt the trial court’s representation
that it was not going to punish the defendant for exercis-
ing his ‘‘absolute right.’’ See State v. Dickman, 119 Conn.
App. 581, 599, 989 A.2d 613 (‘‘The court, however, specif-
ically stated that it had not taken those charges into
consideration in sentencing the defendant. We have
no reason to doubt the court’s representation, and the
defendant has provided none.’’), cert. denied, 295 Conn.
923, 991 A.2d 569 (2010).
Accordingly, we conclude that the trial court did not
penalize the defendant for exercising his fifth amend-
ment privilege against self-incrimination. Therefore, the
court did not violate the defendant’s right to due process
of law.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to identify the victim or others through whom the victim’s identities may
be ascertained. See General Statutes § 54-86e.
1
The victim did not remember exactly how old she was when the sexual
abuse occurred, but she testified that she would have been twelve or thirteen
because she was in middle school when it happened. She also testified that
the abuse took place while the family was living in the apartment in Hartford,
during the spring or summer, rather than the house that the defendant and
M purchased in 2008.
2
In addition to the victim’s testimony regarding the sexual abuse, the jury
heard testimony from three constancy of accusation witnesses. The first
was K, the victim’s childhood friend. She testified that when they were in
fifth or sixth grade, the victim told her that the defendant had molested her.
She also testified that the victim provided more details about the molestation
when they were freshmen in high school. K’s father was the second constancy
witness. Although he could not remember an exact date, he recalled the
victim telling him that the defendant had molested her. The third witness,
G, the victim’s brother, testified that the victim had told him via a text
message that she had been ‘‘touched.’’ He testified that he received the text
message at some point in 2010 while he was in Europe.
The victim also testified that the defendant would kiss her neck ‘‘and
stuff’’ every time that she would go on the computer and that on one occasion
she woke up and saw the defendant in her bedroom pulling his hands out
of his pants. In this case, however, the state only charged the defendant on
the basis of the single incident in her mother’s bedroom that involved
cunnilingus and attempted vaginal penetration.
3
A testified that she was eleven years old when the defendant began to
abuse her, which would have been around 2011.
4
The victim was not able to testify as to a specific year in which the
incident occurred. See footnote 1 of this opinion.
5
Although the charges against the defendant were based on a single
incident, as previously noted, the victim did testify that the defendant would
kiss her neck ‘‘and stuff’’ whenever she was on the computer in the bedroom.
6
Although unnecessary to our resolution of the defendant’s claim, our
review of the record indicates that there was a factual basis for the prosecu-
tor’s question. The victim’s testimony indicated that the defendant ‘‘did
something’’ by the side of the bed and the prosecutor’s question related to
what the defendant did by the side of the bed. Furthermore, this was an
isolated question and the prosecutor did not refer to this colloquy or a
condom at any other point during the trial.
7
The full context of these exchanges between the prosecutor and the
defendant are as follows:
‘‘Q. You told the police that [the victim] was angry at you for leaving
the home?
‘‘A. It was possible she was mad because of the allegations that she
made. . . .
‘‘Q. You told the police . . . you could give them no reason why [A]
would make the allegations against you that she did?
‘‘A. I told them it was more than likely she was upset because I left the
house and I have not paid any of the bills, the mortgage or anything like
that. . . .
‘‘Q. The police asked you if there was any reason why [A] would say these
allegations, these sexual allegations against you?
‘‘A. No. . . .
‘‘Q. And the detective asked you why would [A] say these things about
you and you could think of no reason why she would say this?
‘‘A. The detective didn’t ask me concrete questions.
‘‘Q. Okay. You did not tell the detective that you had hit [M]?
‘‘A. No.
***
‘‘Q. But you claimed you gave [the girls] no reason to make up these
allegations against you, right?
‘‘A. Correct. . . .
‘‘Q. And the only explanation you could give to the detective was that
you had left the home and the victim might have been mad about that?
‘‘A. The detective knew there was a domestic [violence incident] and a
restraining [order].
‘‘Q. Did you tell him that?
‘‘A. I didn’t know. He knew.
‘‘Q. How do you know he knew?
‘‘A. My attorney that I had . . . he said.’’
8
The state argues that the defendant’s claim is an unreviewable evidentiary
claim because ‘‘defense counsel either failed to object, or objected on purely
evidentiary grounds, and the trial court issued a ruling that he does not
challenge on appeal.’’ We disagree.
In State v. Andrews, 313 Conn. 266, 96 A.3d 1199 (2014), our Supreme
Court reviewed a defendant’s claim of prosecutorial impropriety premised
on a prosecutor’s denigration of the defendant ‘‘through frequent and gratu-
itous use of sarcasm’’ during cross-examination. Id., 283. By reviewing the
defendant’s claim, the court implicitly rejected the state’s argument that ‘‘the
defendant has merely lumped together a number of unpreserved evidentiary
challenges and labeled them as prosecutorial improprieties for the purpose
of obtaining appellate review that otherwise would be unavailable.’’ Id.
Similarly, in the present case, the defendant claims that the prosecutor
appealed to the passions and prejudices of the jury through her ‘‘gratuitous
questioning of [the] defendant.’’ Accordingly, we conclude that the defen-
dant’s claim is not purely evidentiary, and ‘‘we consider each alleged impro-
priety in the context in which it occurred . . . .’’ Id., 284.
9
Even assuming, arguendo, that the prosecutor’s comments were
improper, we are not persuaded that the Williams factors weigh in the
defendant’s favor. Although the comments were not invited by defense
counsel, the question and subsequent comment about the question, did not
amount to severe impropriety. Defense counsel did object to the question
referencing Puerto Rico, but he did not object to the subsequent reference
in closing argument. Moreover, defense counsel did not seek any curative
instruction. Additionally, these comments were not frequent and the defen-
dant’s ethnicity was not central to his credibility, the critical issue in this
case. Finally, the state’s case was strong in that the victim’s allegations were
corroborated by three constancy of accusation witnesses, and A’s testimony.
Accordingly, we could not conclude that the defendant was deprived of
the right to a fair trial, even if we were to assume that the comments
were improper.
10
The following are the relevant portions of the prosecutor’s cross-exami-
nation of the defendant:
‘‘[The Prosecutor]: And the children spoke to you in English?’’
‘‘[The Defendant]: They understand Spanish.
‘‘[The Prosecutor]: But they spoke to you in English?’’
‘‘[The Defendant]: A little bit because I don’t know a lot . . . .
‘‘[The Prosecutor]: Well you spoke to them in English?’’
Defense counsel objected, claiming the question was argumentative, and
the court overruled the objection. The colloquy continued:
‘‘[The Prosecutor]: You spoke to them in English?
‘‘[The Defendant]: [A] little bit. I wanted to learn, and I had to practice.
‘‘[The Prosecutor]: Right. And your bosses . . . spoke to you in English?
‘‘[The Defendant]: Yes.
‘‘[The Prosecutor]: And you spoke to the police about this case in English?
‘‘[The Defendant]: Yes.
‘‘[The Prosecutor]: And the first time you heard about these allegations
was from the [department] worker . . . right?
‘‘[The Defendant]: Yes. . . .
‘‘[The Prosecutor]: And he spoke to you in English?
‘‘[The Defendant]: Yes. . . .
‘‘[The Prosecutor]: And [the police] spoke to you in English?
***
‘‘[The Prosecutor]: So the police spoke to you, the police officer, Detective
Verrengia, he spoke to you in English, right?
‘‘[The Defendant]: Yes.
‘‘[The Prosecutor]: And you did not have [a] translator in the room?
‘‘[The Defendant]: There were things I couldn’t answer because I didn’t
know what he was saying because my English is not that good. . . .
‘‘[The Prosecutor]: Okay. You didn’t ask the police for a translator?
‘‘[The Defendant]: We didn’t have long conversations.
‘‘[The Prosecutor]: When the police were talking to you in your lawyer’s
office, you did not ask the police to provide a translator, did you?
‘‘[The Defendant]: No.
‘‘[The Prosecutor]: And you did not ask the [department] worker for a
translator, did you?
‘‘[The Defendant]: He looked Hispanic so if I did not understand; I could
ask him a question. . . .
‘‘[The Prosecutor]: He never actually ever spoke to you in Spanish?’’
Defense counsel objected and the court stated, ‘‘I think we have explored
the bilingual nature enough; let’s move on.’’
11
The court effectively overruled two of defense counsel’s three objections
during the prosecutor’s cross-examination regarding the defendant’s ability
to speak English.
‘‘[Defense Counsel]: Objection, Your Honor.
‘‘The Court: What’s the nature of the objection?
‘‘[Defense Counsel]: Argumentative. . . .
‘‘[Defense Counsel]: Arguing with the witness.
‘‘The Court: No. You can answer that if you know.
***
‘‘[Defense Counsel]: Objection, Your Honor, relevance. . . .
‘‘[The Prosecutor]: Well he’s testified about certain things. He’s claimed
he said certain things, Your Honor, I’m simply moving toward what he
disclosed and what he didn’t disclose to the police and he claimed for the
first time today and he can walk through how that took place.
‘‘[Defense Counsel]: Your Honor, the one question by sister counsel implies
that [the defendant] is fluent in the English language. I don’t believe it’s
germane to this case, which is sexual abuse.
‘‘[The Prosecutor]: The state is not claiming he’s fluent in English, Your
Honor. The state is not making a claim against him in using a translator so
he can understand everything he’s being asked now. I’m simply pointing
out that the interview conducted by the police was in English and his
responses were in English.
‘‘The Court: You can inquire about that.
***
‘‘[Defense Counsel]: Objection, Your Honor. Facts not in evidence about
a conversation. Facts not in evidence, she’s talking about a [department]
conversation, the nature of it.
‘‘The Court: You put the [department] worker on the stand.
‘‘[The Prosecutor]: He’s previously testified the worker spoke in English,
Your Honor.
‘‘The Court: All right. I think we’ve explored the bilingual nature enough;
let’s move on.’’
12
The defendant also asks this court, if we conclude that there was not
a constitutional violation, to invoke its supervisory powers to vacate his
sentence and remand the case for resentencing before a different judge. We
decline to do so because our supervisory authority is intended to be utilized
sparingly and only in extraordinary circumstances, which are not present
here. See State v. Collymore, 168 Conn. App. 847, 898 n.27, 148 A.3d 1059
(2016), cert. granted on other grounds, 324 Conn. 913, 153 A.3d 1288 (2017).
13
Because we conclude that our decision is controlled by our Supreme
Court’s decision in State v. Huey, supra, 199 Conn. 121, we are not persuaded
by the defendant’s citation to cases from other jurisdictions for the proposi-
tion that a court may not consider a defendant’s silence at sentencing as
an indication of a lack of remorse.
14
Although the defendant was not convicted on any charges related to
A, it is well settled that the sentencing court may consider any relevant
information at sentencing, so long as it exhibits some ‘‘indicium of reliabil-
ity.’’ See State v. Ruffin, 144 Conn. App. 387, 395, 71 A.3d 695 (2013) (‘‘[t]o
arrive at a just sentence, a sentencing judge may consider . . . evidence
of crimes for which the defendant was indicted but neither tried nor con-
victed . . . evidence bearing on charges for which the defendant was acquit-
ted . . . and evidence of counts of an indictment which has been dismissed
by the government’’ [internal quotation marks omitted]), aff’d, 316 Conn.
20, 110 A.3d 1225 (2015). Moreover, the defendant has not claimed, in this
appeal, that the trial court inappropriately considered information relating
to A in fashioning the sentence.