State v. Ciullo

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 STATE OF CONNECTICUT v.
PASQUALE E. CIULLO
(SC 19127)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald and Robinson, Js.
Argued March 24—officially released October 7, 2014

Herald Price Fahringer, pro hac vice, with whom,
on the brief, were Erica T. Dubno, pro hac vice, and
Edward J. Gavin, for the appellant (defendant).
Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, were David I. Cohen, state’s
attorney, and James Bernardi, supervisory assistant
state’s attorney, for the appellee (state).
 Opinion

EVELEIGH, J. The defendant, Pasquale E. Ciullo,
appeals from the judgment of the Appellate Court
affirming the trial court’s judgment of conviction, ren-
dered after a jury trial, of two counts of unlawful
restraint in the first degree in violation of General Stat-
utes § 53a-95.1 State v. Ciullo, 140 Conn. App. 393, 395–
96, 59 A.3d 293 (2013). In this certified appeal, the
defendant claims that the prosecutor engaged in certain
improprieties that deprived him of his due process right
to a fair trial. Upon a consideration of the entire record,
we conclude that the instances of alleged prosecutorial
impropriety identified by the defendant did not affect
the fairness of the trial or prejudice the defendant.
Accordingly, we affirm the judgment of the Appellate
Court.
The opinion of the Appellate Court appropriately sets
forth the following facts that the jury reasonably could
have found. ‘‘The defendant owned and rented out a
house located at 172 Byram Shore Road in Greenwich.
In May, 2007, the defendant and his neighbor, Rose
Pinchuk, were involved in a dispute over a stone wall
and pillars that border their two properties. This dispute
resulted in the use of attorneys and a survey being
conducted to determine the exact location of the defen-
dant’s property line.
‘‘On July 4, 2007, Pinchuk drove to Port Chester, New
York, and hired two day laborers, Victor Illescas and
Job Diaz,2 and drove them to her house. Pinchuk
directed Diaz and Illescas to install a fence, which fol-
lowed her home’s property line and continued into the
driveway of the defendant’s house. Pinchuk supplied
Illescas and Diaz with the materials and tools necessary
for the fence extension, including a pickax, shovel, rake
and iron bar. Pinchuk and the defendant’s neighbor,
Martin Hyman, observed the laborers digging holes in
the driveway, and Hyman called the defendant’s place
of residence for the purpose of reporting these happen-
ings. When the defendant’s son, Angelo Ciullo,
answered the telephone at the defendant’s home,
Hyman informed him of the fence construction, and
urged [Angelo Ciullo] to call the police due to the prop-
erty damage he believed was being caused by the work
of Illescas and Diaz.
‘‘After receiving this telephone call, the defendant and
[Angelo Ciullo] drove a pickup truck to the defendant’s
house on Byram Shore Road and brought the truck to
a sudden stop where Illescas and Diaz were working
in close proximity to each other. The defendant and
Angelo Ciullo left the truck, drew Walther PPK semiau-
tomatic pistols from their holsters and began yelling
at the laborers. During these initial moments of the
confrontation, the defendant pulled back his pistol’s
slide . . . and he and Angelo Ciullo pointed their pis-
tols at Illescas. The defendant and [Angelo Ciullo] then
approached Illescas, and the defendant grabbed Illescas
by the neck, pointed his pistol at Illescas’ [neck] and
ordered him to sit down. While Diaz initially ran behind
Pinchuk, who was standing twelve to thirteen feet away
and was calling 911 on her cell phone, he soon halted
and sat down after Angelo Ciullo pointed his pistol
at him. When Pinchuk screamed and ran away, the
defendant instructed Angelo Ciullo to hold Illescas and
Diaz together as he picked up a shovel and chased
after Pinchuk along Byram Shore Road to a stone patio
around the back of a neighboring house where Pinchuk
fell to the ground.
‘‘When the police arrived at the scene, they encoun-
tered the defendant and Angelo Ciullo standing near
Illescas and Diaz. The defendant told the police that
he had instructed the laborers to stop working on his
property, that he and Pinchuk had previously disagreed
over the boundary separating their property and that
Pinchuk had been present when they arrived at the
scene but had run away. The police located Pinchuk
lying on the steps of the backyard patio of the house
where she had run while being pursued by the defen-
dant. On examination, the police discovered that she
had a lacerated left palm and bruising on her legs. A
subsequent police search of the defendant’s pickup
truck revealed that a wooden billy club and baseball
bats were stored in the cab of the truck. The police then
arrested the defendant and Angelo Ciullo.’’3 Id., 396–98.
The record reveals the following additional facts.
After the defendant and Angelo Ciullo exited the car, the
defendant repeatedly yelled profanities at the laborers,
turned off the safety mechanism on his gun, and dis-
played the gun to the laborers constantly, lifting the
gun out of its holster enough to place his hand around
the trigger guard.4 The defendant surrendered his gun
to a responding police officer with the safety off, a
hollow point bullet in the chamber, and a full magazine
loaded into the gun.
The opinion of the Appellate Court appropriately sets
forth the procedural history. ‘‘The state charged the
defendant by way of an amended information with three
counts of unlawful restraint in violation of § 53a-95,
one count of assault in the first degree in violation of
General Statutes § 53a-59 (a) (1) and one count of illegal
possession of a weapon in a motor vehicle in violation
of General Statutes [Rev. to 2007] § 29-38 (a). The court
instructed the jury on assault, unlawful restraint and
the weapon charge. The court also instructed the jury,
at the defendant’s request, on the law regarding the
defense of premises [civilian arrest] and self-defense.
Following deliberations, the jury found the defendant
guilty of three counts of unlawful restraint but not guilty
of the assault charge and the weapon charge. The trial
court, after accepting the jury’s verdict, sentenced the
defendant to concurrent terms of five years incarcera-
tion on the unlawful restraint charges for a total effec-
tive sentence of five years incarceration.’’ Id., 398. The
defendant appealed the judgment of conviction to the
Appellate Court.
On appeal to the Appellate Court, the defendant
claimed, inter alia, that the prosecutor engaged in
improprieties that deprived him of a fair trial.5 Id., 395–
96. The Appellate Court found that the prosecutor’s
statements were not improper and did not deprive the
defendant of his right to a fair trial, though it did reverse
the defendant’s conviction for unlawful restraint of Pin-
chuk, citing to insufficient evidence to support the ver-
dict. Id., 405, 415. This appeal followed.6
On appeal to this court, the defendant claims that
the prosecutor improperly: (1) shifted the burden of
proof to the defense; (2) vouched for the credibility of
the state’s witnesses; (3) denigrated the defense and
impugned the credibility of the defendant’s testimony;
and (4) appealed to the jurors’ emotions. The defendant
claims that the sum of the prosecutor’s alleged impro-
prieties deprived him of his due process right to a fair
trial. The state claims that the prosecutor’s statements
were not improper and, even assuming they were, such
improprieties did not violate the defendant’s due pro-
cess right to a fair trial. We agree with the state and
affirm the judgment of the Appellate Court, albeit for
different reasons.
Before we address the merits of the defendant’s
claims, we set forth the standard of review and the
law governing claims of prosecutorial impropriety. ‘‘[I]n
analyzing claims of prosecutorial [impropriety], we
engage in a two step analytical process. The two steps
are separate and distinct: (1) whether [an impropriety]
occurred in the first instance; and (2) whether that
[impropriety] deprived a defendant of his due process
right to a fair trial. Put differently, [an impropriety is
an impropriety], regardless of its ultimate effect on the
fairness of the trial; whether that [impropriety] caused
or contributed to a due process violation is a separate
and distinct question that may only be resolved in the
context of the entire trial . . . .’’ (Internal quotation
marks omitted.) State v. Luster, 279 Conn. 414, 428, 902
A.2d 636 (2006).
‘‘[I]t is unnecessary for a reviewing court to apply
the four-prong Golding7 test. . . . The reason for this
is that the defendant in a claim of prosecutorial [impro-
priety] must establish that the prosecutorial [impropri-
ety] was so serious as to amount to a denial of due
process . . . . In evaluating whether the [impropriety]
rose to this level, we consider the factors enumerated
by this court in State v. Williams, 204 Conn. 523, 540,
529 A.2d 653 (1987).8 . . . The consideration of the fair-
ness of the entire trial through the Williams factors
duplicates, and, thus makes superfluous, a separate
application of the Golding test.’’ (Footnotes altered;
internal quotation marks omitted.) State v. Luster,
supra, 279 Conn. 426–27.
The state asserts that the defendant raises previously
unreviewed examples of prosecutorial improprieties for
the first time on appeal to this court. Noting that the
Appellate Court ruled on the defendant’s claims of pros-
ecutorial impropriety only with respect to vouching for
the credibility of the state’s witnesses, the state asserts
that we should disregard those alleged improprieties
that do not fall within the category of ‘‘vouching.’’
We disagree.
It is well settled that ‘‘a defendant who fails to pre-
serve claims of prosecutorial [impropriety] need not
seek to prevail under the specific requirements of [Gold-
ing]. . . .’’ (Internal quotation marks omitted.) State v.
Luster, supra, 279 Conn. 426. ‘‘Furthermore, the applica-
tion of the Golding test to unchallenged incidents of
[impropriety] tends to encourage analysis of each inci-
dent in isolation from one another. Because the inquiry
must involve the entire trial, all incidents of [impropri-
ety] must be viewed in relation to one another and
within the context of the entire trial. The object of
inquiry before a reviewing court in [due process] claims
involving prosecutorial [impropriety], therefore, is . . .
only the fairness of the entire trial, and not the specific
incidents of [impropriety] themselves. Application of
the Williams factors provides for such an analysis
. . . .
‘‘This does not mean, however, that the absence of
an objection at trial does not play a significant role in
the application of the Williams factors. To the contrary,
the determination of whether a new trial or proceeding
is warranted depends, in part, on whether defense coun-
sel has made a timely objection to any [incident] of the
prosecutor’s improper [conduct]. When defense coun-
sel does not object, request a curative instruction or
move for a mistrial, he presumably does not view the
alleged impropriety as prejudicial enough to seriously
jeopardize the defendant’s right to a fair trial. . . .
[Thus], the fact that defense counsel did not object to
one or more incidents of [impropriety] must be consid-
ered in determining whether and to what extent the
[impropriety] contributed to depriving the defendant of
a fair trial and whether, therefore, reversal is war-
ranted.’’ (Citation omitted; internal quotation marks
omitted.) Id., 427–28.9
In the present case, the defendant claims that the
prosecutorial improprieties occurred during the state’s
closing argument and rebuttal. ‘‘As we previously have
recognized, prosecutorial [impropriety] of a constitu-
tional magnitude can occur in the course of closing
arguments. . . . When making closing arguments to
the jury, [however, counsel] must be allowed a generous
latitude in argument, as the limits of legitimate argu-
ment and fair comment 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 advocate, 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 lan-
guage 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. . . . While the privilege of coun-
sel in addressing the jury should not be too closely
narrowed or unduly hampered, it must never be used
as a license to state, or to comment 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.) Id., 428–29.
I
Having set forth the applicable law, we now turn to
the question of whether the prosecutor’s remarks in
the present case constituted prosecutorial impropriety.
The defendant claims that the prosecutor improperly:
(1) shifted the burden of proof to the defense; (2)
vouched for the credibility of the state’s witnesses; (3)
denigrated the defense and impugned the credibility of
the defendant’s testimony; and (4) appealed to the
jurors’ emotions. We will address each claim of prosecu-
torial impropriety in turn, setting forth additional facts
as needed.
A
Shifting the Burden of Proof to the Defense
The defendant first claims that the prosecutor, in his
closing argument, shifted the burden of proof to the
defense in violation of In re Winship, 397 U.S. 358, 364,
90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), when he said
that the ‘‘testimony [of the defendant and Angelo Ciullo]
does nothing at all to create a doubt in this case.’’10 The
state responds that this comment was isolated and that,
thereafter, the prosecutor correctly expressed the bur-
den of proof multiple times. We agree with the state.
Viewing the comment in the context of the prosecu-
tor’s closing argument, we conclude that the prosecu-
tor’s comment was not improper. The prosecutor began
his closing argument by instructing the jury that ‘‘it is
what His Honor says, not what I say that counts when
it comes to the law.’’ He then correctly described the
standard for reasonable doubt, concluding his closing
argument by counseling the jurors to ‘‘listen to the law
as His Honor gives it to you. If it conflicted with anything
I had to say, you go with what His Honor said.’’ Both
defense attorneys accurately stated the burden of proof
in their two hours of closing arguments, after which
the prosecutor’s rebuttal accurately stated the burden
of proof. The trial judge accurately charged the jury
with the correct burden of proof.
The challenged comment was isolated, likely uninten-
tional, and without any prejudicial impact because the
comment related to testimony discussing the alleged
assault and unlawful restraint of Pinchuk, of which the
defendant was ultimately acquitted. In the context in
which it was made during closing arguments, we con-
clude that this comment was not improper.
B
Vouching for the Credibility of the State’s Witnesses
The defendant claims that the prosecutor impermissi-
bly vouched for the credibility of the state’s witnesses
on eight different occasions.11 Specifically, the defen-
dant points to the prosecutor’s use of words such as
‘‘credible,’’ ‘‘honest,’’ and ‘‘truthful.’’ The defendant
asserts that, because the credibility of the witnesses
was a central issue in the case, the impact of the prose-
cutor’s alleged vouching ‘‘devastated the defense.’’ The
state responds that the prosecutor’s statements were
not improper and, instead, were permissible because
‘‘the state may argue that its witnesses testified credibly,
if such an argument is based on reasonable inferences
drawn from the evidence.’’ State v. Warholic, 278 Conn.
354, 365, 897 A.2d 569 (2006). We agree with the state.
‘‘The parameters of the term zealous advocacy are
. . . well settled.’’ (Internal quotation marks omitted.)
Id., 363. ‘‘[A] prosecutor may not express his [or her]
own opinion, directly or indirectly, as to the credibility
of the witnesses. . . . Such expressions of personal
opinion are a form of unsworn and unchecked testi-
mony, and are particularly difficult for the jury to ignore
because of the prosecutor’s special position. . . . Put
another way, the prosecutor’s opinion carries with it
the imprimatur of the [state] and may induce the jury
to trust the [state’s] judgment rather than its own view
of the evidence. . . . Moreover, because the jury is
aware that the prosecutor has prepared and presented
the case and consequently, may have access to matters
not in evidence . . . it is likely to infer that such mat-
ters precipitated the personal opinions. . . . However,
[i]t is not improper for the prosecutor to comment upon
the evidence presented at trial and to argue the infer-
ences that the jurors might draw therefrom . . . . We
must give the jury the credit of being able to differenti-
ate between argument on the evidence and attempts to
persuade them to draw inferences in the state’s favor,
on one hand, and improper unsworn testimony, with
the suggestion of secret knowledge, on the other hand.
The state’s attorney should not be put in the rhetorical
straitjacket of always using the passive voice, or contin-
ually emphasizing that he [or she] is simply saying I
submit to you that this is what the evidence shows, or
the like.’’ (Citation omitted; internal quotation marks
omitted.) State v. Stevenson, 269 Conn. 563, 583–84, 849
A.2d 626 (2004).
A prosecutor’s mere use of the words ‘‘honest,’’ ‘‘cred-
ible,’’ or ‘‘truthful’’ does not, per se, establish prosecu-
torial impropriety. In State v. Luster, supra, 279 Conn.
438 n.7, this court found no prosecutorial impropriety
when the prosecutor pointed to a witness’ testimony
and stated that ‘‘ ‘[the witness] was, I think, if you will
look at his testimony, honest and open with us.’ ’’ This
court reasoned that the prosecutor had not made bald
assertions that the state’s witnesses had been honest
such that his remarks might constitute the ‘‘unsworn
and unchecked testimony’’ suggestive of a prosecutor’s
‘‘special position’’ and his ‘‘access to matters not in
evidence,’’ which a jury may infer to have ‘‘precipitated
the [prosecutor’s] personal opinions’’ of the witness’
veracity. (Internal quotation marks omitted.) Id., 435.
Instead, the prosecutor in that case had referred to the
facts adduced at trial, the witness’ demeanor on the
witness stand, and testimony indicating that its witness,
unlike the other witnesses, had no personal connection
to either the victim or the defendant. Id., 439.
With these principles in mind, we now turn to the
defendant’s specific claims of vouching in the present
case. We agree with the Appellate Court that the four
claimed instances of vouching in the prosecutor’s clos-
ing argument do not purport to convey the prosecutor’s
personal opinion of the credibility of the witnesses;
instead, the prosecutor’s statements, when placed in
the context in which they were made, are reasonable
inferences the jury could have drawn from the evidence
adduced at trial.12 See State v. Ciullo, supra, 140 Conn.
App. 415. The prosecutor pointed to facts likely to give
rise to the reasonable inference that the laborer’s testi-
mony was credible, such as the laborers’ lack of motive
to lie, lack of ability to speak English, and holes in the
testimony that if the laborers had been lying they would
have plugged. The prosecutor did not make a bald asser-
tion of witness credibility or state his personal opinion
as to the veracity of the witnesses; instead, he ‘‘posited
a reasonable inference that the jury itself could have
drawn without access to the [prosecutor’s] personal
knowledge of the case.’’ State v. Stevenson, supra, 269
Conn. 584. He did not ‘‘suggest the existence of secret
knowledge’’ but instead based his opinion on ‘‘the ascer-
tainable motives of the witnesses.’’ Id., 584–85. He
meticulously laid out the facts from which to draw the
reasonable inferences that the witnesses were credible.
 We also conclude that the claimed instances of vouch-
ing in the prosecutor’s rebuttal do not purport to convey
his personal opinion of the credibility of the witnesses;
instead, the prosecutor’s statements, when placed in
the context in which they were made, are reasonable
inferences the jury could have drawn from the evidence
adduced at trial.13 Moreover, after defense counsel
objected to the prosecutor’s statements, the prosecutor
stepped back and reminded the jury that, ‘‘I don’t have
any—let me make something clear, I am just arguing
common sense here, I don’t have any special knowledge
or any knowledge that you don’t have.’’ The prosecutor
explicitly disclaimed any personal opinion of the wit-
nesses’ credibility based on ‘‘access to matters not in
evidence,’’ obviating any claim that the prosecutor was
relying on his ‘‘special position’’ and using the ‘‘imprima-
tur of the [state] . . . [to] induce the jury to trust the
[state’s] judgment rather than its own view of the evi-
dence.’’ (Internal quotation marks omitted.) State v.
Long, 293 Conn. 31, 38, 975 A.2d 660 (2009). We con-
clude that the prosecutor did not improperly vouch for
the credibility of the state’s witnesses, though he would
be well advised to avoid statements of this kind in
the future.
The defendant also asks us to overrule the ‘‘danger-
ous exception to the ban on vouching,’’ claiming that
prosecutors should not be able to vouch for the credibil-
ity of their witnesses and insulate their statements from
claims of impropriety under Williams by tacking on
references to corroborative facts in the record. Instead,
the defendant proposes that prosecutors never be per-
mitted to urge that their witnesses told the truth, espe-
cially in cases in which the vouching is aimed at ‘‘sharply
contested facts’’ flowing from the witnesses whose
credibility is at issue. In response, the state urges us
to follow this court’s existing jurisprudence allowing a
prosecutor to comment on witness veracity only if the
statements are reasonably inferred from the evidence
and/or common sense. We decline the defendant’s invi-
tation to overrule this court’s jurisprudence.
‘‘It is well established that a prosecutor may argue
about the credibility of witnesses, as long as her asser-
tions are based on evidence presented at trial and rea-
sonable inferences that jurors might draw therefrom.
. . . Moreover, [i]n deciding cases . . . [j]urors are
not expected to lay aside matters of common knowl-
edge or their own observations and experiences, but
rather, to apply them to the facts as presented to arrive
at an intelligent and correct conclusion. . . . There-
fore, it is entirely proper for counsel to appeal to [the
jurors’] common sense in closing remarks.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Medrano, 308 Conn. 604, 617–18, 65 A.3d 503 (2013).
Our jurisprudence permits these statements from the
prosecution, if properly presented, because ‘‘[w]e must
give the jury the credit of being able to differentiate
between argument on the evidence and attempts to
persuade them to draw inferences in the state’s favor,
on one hand, and improper unsworn testimony, with
the suggestion of secret knowledge, on the other hand.’’
(Internal quotation marks omitted.) State v. Fauci, 282
Conn. 23, 36, 917 A.2d 978 (2007).
We decline to adopt the defendant’s suggestion of a
bright line rule prohibiting a prosecutor’s statements
on credibility in ‘‘pure credibility’’ cases, because these
statements may be reasonably inferred from evidence
adduced at trial, because juries are credited with being
able to differentiate between proper and improper argu-
ments, and because of the subjectivity involved in char-
acterizing a case as a ‘‘pure credibility’’ case versus a
case with ‘‘sharply contested facts.’’14 Cf. State v. Singh,
259 Conn. 693, 710–11, 793 A.2d 226 (2002) (declining
to adopt bright line rule that would allow prosecutors
to ask questions and argue in closing about whether
witness’ testimony ‘‘is the opposite of or contradicts
the testimony of other witnesses, thereby presenting a
basic issue of credibility’’ in contrast to prohibition
of prosecutors from asking questions and arguing in
closing about whether witness ‘‘lied’’ because ‘‘[i]t
would be unwise, in our view, to make the application of
this exception predicated on such a difficult distinction,
which is relegated properly to the jury’’ [internal quota-
tion marks omitted]). Though we caution against all
forms of vouching; see State v. Alexander, 254 Conn.
290, 305, 755 A.2d 868 (2000) (noting that vouching ‘‘is
especially significant in . . . case[s] where the credi-
bility of the victim and the defendant comprised the
principal issue of the case’’); we affirm this court’s juris-
prudence allowing a prosecutor to ‘‘invit[e] the jurors
to draw reasonable inferences from the evidence pre-
sented to them’’ so long as the prosecutor’s ‘‘assertions
are based on evidence presented at trial and reasonable
inferences that jurors might draw therefrom.’’ State v.
Medrano, supra, 308 Conn. 617.
C
Denigrating the Defense and Impugning the Credibility
of the Defendant’s Testimony
The defendant claims that the prosecutor improperly
denigrated the defense, impugned the defendant’s testi-
mony as ‘‘incredible,’’ and implied that the only way
the jurors could find the defendant not guilty was if
they found that the prosecution’s witnesses had lied.
We address each of these arguments in turn and con-
clude that, although some, but not all, of the comments
were questionable, even if we were to assume, without
deciding, that the prosecutor’s remarks were improper,
the comments do not compel a reversal of the judgment.
The defendant first claims that the prosecutor
improperly disparaged the defense by implying that
defense counsel unnecessarily prolonged the cross-
examination of the laborers, calling the cross-examina-
tion ‘‘lengthy and laborious.’’15 The state replies that the
reference to the length of the cross-examination was
only meant to highlight that the laborers’ testimony
had remained consistent throughout a difficult cross-
examination. We agree with the state.
We disagree with the disparaging import the defen-
dant attributes to this statement and, even assuming
the statement could have disparaged the defense, ‘‘a
court should not lightly infer that a prosecutor intends
an ambiguous remark to have its most damaging mean-
ing or that a jury, sitting through lengthy exhortation,
will draw that meaning from the plethora of less damag-
ing interpretations.’’ (Internal quotation marks omit-
ted.) State v. Warholic, supra, 278 Conn. 368. This brief
statement comprised a few words among hours of clos-
ing arguments after a thirteen day trial. The language
itself was neither colorful nor malicious and, in context,
we do not agree that the statement denigrated the
defense. The isolated comment was not improper.
The defendant next claims that the prosecutor
improperly impugned the defendant’s testimony and
implied that the only way the jurors could find the
defendant not guilty was if they found the prosecution’s
witnesses lied.16 The state responds, first, that none of
the comments were improper in context because the
prosecutor pointed to facts in evidence and asked the
jury to apply common sense to the evidence in order
to delineate the motives of a police officer and the
laborers to testify truthfully. Next, the state asserts that
the statements in the closing argument were not
improper because they were meant to ‘‘preempt’’
defense counsel’s likely argument that the state’s wit-
nesses had coordinated their testimony to falsely
accuse the defendant. Finally, the state asserts that,
even if these statements violated State v. Singh, supra,
259 Conn. 693, this court should overrule Singh to the
extent that, in a ‘‘pure credibility’’ case, State v. Fauci,
supra, 282 Conn. 48, permits the prosecutor to infer
that one of the two sides is lying.
‘‘[C]ourts have long admonished prosecutors to avoid
statements to the effect that if the defendant is innocent,
the jury must conclude that witnesses have lied.17 . . .
The reason for this restriction is that [t]his form of
argument . . . involves a distortion of the govern-
ment’s burden of proof.’’ (Citations omitted; footnote
altered; internal quotation marks omitted.) State v.
Singh, supra, 259 Conn. 709. Statements of this type
‘‘create the risk that the jury may conclude that, in order
to acquit the defendant, it must find that the witness
has lied. . . . This risk is especially acute when the
witness is a government agent in a criminal case. United
States v. Fernandez, 145 F.3d 59, 64 (1st Cir. 1998)
(finding it unfair to force witness to choose between
recanting own testimony and calling law enforcement
officer a liar [g]iven the faith the jury may place in the
word of a law enforcement officer); United States v.
Weiss, 930 F.2d 185, 195 (2d Cir.), cert. denied, 502 U.S.
842, 112 S. Ct. 133, 116 L. Ed. 2d 100 (1991) (explaining
that special concern may be warranted in such cases
because some people may believe that government
agent has heightened credibility) . . . .’’ (Citations
omitted; internal quotation marks omitted.) State v.
Singh, supra, 708; accord State v. Bell, 283 Conn. 748,
779 n.24, 931 A.2d 198 (2007) (reiterating risk of dis-
torting burden of proof, especially when witnesses jury
must find to be lying are police officers).
In Singh, this court warned that ‘‘closing arguments
providing, in essence, that in order to find the defendant
not guilty, the jury must find that witnesses had lied,
are . . . improper.’’ State v. Singh, supra, 259 Conn.
712. In the present case, the state concedes that the
prosecutor’s statements in his closing argument
‘‘directly [link] the defendant’s innocence to believing
that the state’s witnesses were lying and, taken in isola-
tion, [are] generally barred under Singh.’’ Nevertheless,
the state asserts that it was entitled to make the state-
ments in its closing arguments because the statements
would anticipatorily ‘‘preempt’’ defense counsel’s argu-
ment that the state’s witnesses conspired against the
defendant. The state also asserts that the prosecutor’s
statements ‘‘[furnished] the jurors with a permissible
way to side with the state’s witnesses and disbelieve
the defendant in their pure credibility contest . . . .’’
Although the prosecutor’s use of the word ‘‘lying’’
appears to fall within the language prohibited by Singh,
and should be discouraged, for the purposes of our
analysis we assume, without deciding, that the com-
ments violated Singh. See State v. Singh, supra,
709–12.18
Next, the state asserts that we should overrule
Singh’s prohibitions in ‘‘pure credibility’’ cases, such
as the present case, because the risks of misleading
the jury and distorting the burden of proof are not
implicated when the jury’s sole task is to determine
which witnesses are credible because the only way to
find that the defendant had brandished his gun would
be to decide that some witnesses had lied.
In support of its argument, the state cites Fauci, in
which this court stated that ‘‘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. . . . For instance, as [this
court] previously noted in [State v. Stevenson, supra,
269 Conn. 584–85], it was not improper for a prosecutor
to suggest that the police and the victims had no reason
to lie but that the defendant and his friends and family
did have a reason to do so. . . . We reasoned that this
was proper because it was based on the ascertainable
motives of the witnesses rather than the prosecutor’s
personal opinion. . . . We also noted that the prosecu-
tor’s remarks underscored an inference that the jury
could have drawn entirely on its own, based on the
evidence presented.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Fauci, supra, 282 Conn.
39–40. ‘‘The distinguishing characteristic of impropriety
in [Fauci] is whether the prosecutor asks the jury to
believe the testimony of the state’s witnesses because
the state thinks it is true, on the one hand, or whether
the prosecutor asks the jury to believe it because logic
reasonably thus dictates.’’ Id., 48.
This court has recently found Singh violations in
closing arguments where the ‘‘prosecutor made a direct
connection between the defendant’s acquittal and the
credibility of every other witness in the case.’’ State v.
Albino, 312 Conn. 763, 788, A.3d (2014).19 We
stated that, ‘‘under Singh, it is not per se improper
to argue that the jury must conclude that one side of
conflicting accounts must be wrong. Although we con-
clude that it would be unwise in the present case to
attempt to articulate a bright line rule as to when such
argument would be improper, we urge prosecutors to
avoid statements directly connecting these assessments
to the defendant’s conviction or acquittal.’’ Id., 788 n.10.
We thus decline the state’s invitation to overrule
Singh. For the reasons discussed previously in this
opinion, we also decline the state’s suggestion to adopt
a bright line rule as to an application of Singh that
would require a court to differentiate between a ‘‘pure
credibility’’ case and a case with ‘‘sharply contested
facts.’’ See footnote 14 of this opinion. Therefore,
although we express our displeasure with some of the
prosecutor’s comments, we assume, without deciding,
that his comments were improper and violated Singh.
In view of the analysis set forth in part II of this opinion,
however, the comments do not compel a reversal of
the conviction.
D
Appealing to the Jurors’ Emotions
The defendant lastly claims that the state improperly
appealed to the jurors’ emotions by referring to the
laborers and Pinchuk as ‘‘victims’’ and making other
inflammatory statements during the state’s rebuttal. We
address each argument in turn and conclude that,
although some, but not all, of the comments were ques-
tionable, even if we were to assume, without deciding,
that the remarks were improper, the result would
remain unaltered.
The defendant first claims that the prosecutor
improperly referred to the laborers as ‘‘victims’’ three
times during his closing argument and once during
rebuttal, and improperly referred to Pinchuk as a ‘‘vic-
tim’’ three times during direct examination of the police
officers. The state responds that the use of the term
‘‘victim’’ was not sufficiently ‘‘excessive’’ under State
v. Warholic, supra, 278 Conn. 370 n.7, so as to divert
the jurors from the evidence, given the amount of times
the prosecutor referred to the laborers and Pinchuk by
their names. We agree with the state.
In State v. Cortes, 276 Conn. 241, 885 A.2d 153 (2005),
this court held that a trial court’s repeated reference
to the complainant as the ‘‘victim’’ during its jury charge
was inappropriate in a case where the commission of
the crime was at issue. By contrast, in Warholic, this
court held that a prosecutor’s reference to the complain-
ant as the ‘‘victim’’ was not necessarily inappropriate
because ‘‘the jury was likely to understand that the
state’s identification of the complainant as the victim
reflected the state’s contention that, based on the state’s
evidence, the complainant was the victim of the alleged
crimes.’’ State v. Warholic, supra, 278 Conn. 370. This
court ‘‘caution[ed] the state, however, against making
excessive use of the term ‘victim’ to describe a com-
plainant when the commission of a crime is at issue
because prevalent use of the term may cause the jury
to draw an improper inference that the defendant com-
mitted a crime against the complainant.’’ Id., 370 n.7.
In Warholic, the state made only two references to the
complainant as the victim, compared with thirty-four
references to the complainant by name in the rest of
its closing arguments. Id.
In the present case, the prosecutor made only four
references to the laborers as ‘‘victims’’ in its closing
argument and rebuttal, and three references to Pinchuk
as a ‘‘victim’’ during examination of the police officers.
We conclude that, as in Warholic, this was not suffi-
ciently excessive to be improper,20 though we reiterate
our caution to the state to refrain from making exces-
sive use of the term ‘‘victim’’ to describe a complainant
when the commission of a crime is at issue.
The defendant next claims that the prosecutor
improperly appealed to the jurors’ emotions in his rebut-
tal, thus soliciting sympathy for the laborers.21 The state
responds that these statements merely provided the
jurors with ‘‘a necessary and vivid perspective’’ of the
‘‘depth of the laborers’ motivation to testify truthfully,’’
which spoke to the laborers’ credibility. We determine,
that even if we were to assume, without deciding, that
the prosecutor’s remarks were improper, the result
would remain unaltered.
‘‘[A] prosecutor may not appeal to the emotions, pas-
sions and prejudices of the jurors. . . . [S]uch appeals
should be avoided because they have the effect of
diverting the [jurors’] attention from their duty to decide
the case on the evidence.’’ (Internal quotation marks
omitted.) State v. Medrano, supra, 308 Conn. 615. ‘‘When
the prosecutor appeals to emotions, he invites the jury
to decide the case, not according to a rational appraisal
of the evidence, but on the basis of powerful and irrele-
vant factors which are likely to skew that appraisal.’’
(Internal quotation marks omitted.) State v. Alexander,
supra, 254 Conn. 307. ‘‘[A] prosecutor should not inject
extraneous issues into the case that divert the jury from
its duty to decide the case on the evidence.’’ (Internal
quotation marks omitted.) State v. Warholic, supra, 278
Conn. 376.
In the present case, the prosecutor’s statements that
the laborers ‘‘would have walked over the Peruvian
Andes Mountains to get here,’’ that ‘‘they would have
walked a thousand miles to testify in this case,’’ and
that the laborers ‘‘would have walked [fifty] miles to
come in here and testify against the two men that humili-
ated them, made them beg, put guns to them, pointing
guns at them, and treated them as if they were dirt
that got dug up out of that driveway that day’’ were
questionable. The prosecutor’s personal opinion about
how far the laborers would have walked to testify in
this case is wholly irrelevant and has ‘‘no bearing on
witness credibility or any factual issue in the case’’
other than ‘‘to encourage the jury to sympathize with
[the laborers] and to decide the case on the basis of
passion and emotion.’’ State v. Warholic, supra, 278
Conn. 377. We therefore, assume, without deciding, that
these remarks were improper.
We conclude that the prosecutor’s description of the
defendant in the statement accusing the defendant of
‘‘treat[ing] [the laborers] as if they were dirt that got
dug up out of that driveway that day’’ was fleeting and,
therefore, not so repetitious as to become improper.
We assume, without deciding, that the prosecutor’s
statements that the laborers had been so humiliated
that they would have walked far lengths to testify truth-
fully at trial was an injection of extraneous matters, an
appeal to the emotions of the jurors, and an attempt
to encourage the jury to identify with the victims, but
that any alleged impropriety does not alter the judgment
in this case.
II
We now turn to the question of whether the prosecu-
tor’s alleged improprieties deprived the defendant of
his due process right to a fair trial. ‘‘[O]ur determination
of whether any improper conduct by the [prosecutor]
violated the defendant’s fair trial rights is predicated
on the factors set forth in State v. Williams, supra,
204 Conn. 540, with due consideration of whether that
[impropriety] was objected to at trial. . . . These fac-
tors include: the extent to which the [impropriety] was
invited by defense conduct or argument . . . the sever-
ity of the [impropriety] . . . the frequency of the
[impropriety] . . . the centrality of the impropriety to
the critical issues in the case . . . the strength of the
curative measures adopted . . . and the strength of the
state’s case. . . .
 ‘‘We recently clarified that when a defendant raises on
appeal a claim that improper remarks by the prosecutor
deprived the defendant of his constitutional right to a
fair trial, the burden is on the defendant to show, not
only that the remarks were improper, but also that,
considered in light of the whole trial, the improprieties
were so egregious that they amounted to a denial of due
process.’’ (Citation omitted; internal quotation marks
omitted.) State v. Medrano, supra, 308 Conn. 619–20.
After considering the prosecutor’s various alleged
improprieties—impugning the credibility of the defen-
dant, urging that to acquit the defendant the jury had
to find that the state’s witnesses had lied, and appealing
to the emotions of the jurors—in the context of the
entire trial, we hold that the defendant has not shown
a denial of due process.
We begin by determining whether the alleged impro-
prieties were invited by the defense during the trial. The
defendant notes that many of the allegedly improper
statements occurred in the state’s closing arguments,
before defense counsel had had a chance to invite the
improprieties because defense counsel had not yet
made his own closing argument. The defendant also
notes that defense counsel’s closing argument did not
invite any improprieties in the state’s rebuttal. The state
does not point to any statements in the record that
would have invited the alleged prosecutorial improprie-
ties.22 We note that much of the prosecutor’s statements
in this case were unprovoked and, in fact, worsened
after defense counsel’s objections. Accordingly, we con-
clude that the alleged improprieties were not invited.
We next consider whether the alleged improprieties
were severe. In determining whether prosecutorial
impropriety is severe, we consider whether defense
counsel objected to the improper remarks, requested
curative instructions, or moved for a mistrial. See State
v. Fauci, supra, 282 Conn. 51. We also consider whether
the ‘‘impropriety was blatantly egregious or inexcus-
able.’’ Id. The defendant objected to some of the alleged
improprieties in the present case, after which the prose-
cutor continued to make similar statements, culminat-
ing in the trial judge’s directive to ‘‘leave it out.’’ The
statements of the prosecutor relating to the laborers’
socioeconomic status and national origin and to the
lengths the laborers would have walked to testify to
receive justice for their humiliation were inexcusable
in any context; nevertheless, defense counsel did not
move to strike those comments and did not request
targeted curative instructions from the trial judge dur-
ing closing arguments. Instead, defense counsel
‘‘ask[ed] the court just to give that instruction [in the
jury charge] that I think you are going to give them
anyway, that the arguments of counsel are not evidence
in that regard.’’23 Despite the possible severity of such
comments, the statements made by the prosecutor in
the present case were infrequent and confined almost
exclusively to two small passages among hours of clos-
ing arguments after thirteen days of trial.
We next consider whether the alleged improprieties
were central to the critical issues in the case. Although
we agree that the case mostly centered on a determina-
tion of credibility, not all of the allegedly improper
statements implicated this issue. Viewed in the context
of the rest of the trial, however, the impact of these
alleged improprieties was minimal.24 Even if all of the
statements had affected a determination of credibility,
the defendant was acquitted of the some of the charges
against him, clearly demonstrating the jurors’ ability to
filter out the allegedly improper statements and make
independent assessments of credibility.
The jurors’ acquittal of the defendant on some
charges also speaks to the strength and efficacy of the
curative measures adopted.25 The defendant, citing
State v. Ceballos, 266 Conn. 364, 413, 832 A.2d 14 (2003),
asserts that the curative instructions to the jury were
insufficient because they were neither contemporane-
ous nor specifically directed at the alleged prosecutorial
impropriety involved. We disagree that the curative
instructions in this case were insufficient and further
note that, as in Ceballos, defense counsel ‘‘did not object
to the content of this curative instruction. . . . [W]e
note that the defendant, by failing to bring [the impropri-
eties] to the attention of the trial court, bears much
of the responsibility for the fact that these claimed
improprieties [may have gone] uncured.’’ (Citation
omitted.) Id., 413–14.
Lastly, the state’s case against the defendant for
unlawful restraint of the laborers was strong. The defen-
dant admitted facts26 that a jury, even discrediting the
laborers and believing the defendant, could reasonably
have concluded constituted unlawful restraint. In the
context of the trial—in light of the defendant’s admis-
sions, the testimony of the laborers and police officers,
the 911 call, and the physical evidence that the gun was
fully loaded with the safety off—the state’s case was
strong, independent of any alleged prosecutorial impro-
prieties.
Considering the alleged prosecutorial improprieties
within the context of the entire trial, we hold that the
defendant was not denied a fair trial under the Williams
standard and, therefore, agree with the Appellate Court
that reversal of the defendant’s conviction of two counts
of unlawful restraint in the first degree is unwarranted.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
General Statutes § 53a-95 (a) provides: ‘‘A person is guilty of unlawful
restraint in the first degree when he restrains another person under circum-
stances which expose such other person to a substantial risk of physical
injury.’’
As explained subsequently in this opinion, the Appellate Court also
reversed the defendant’s conviction on a third count of unlawful restraint
in the third degree. This count is not, however, at issue in the present appeal.
2
Like the Appellate Court, we refer to Illescas and Diaz collectively as
the laborers and individually by name.
3
Angelo Ciullo was tried with the defendant and convicted of two counts
of unlawful restraint and one count of possession of a weapon in a motor
vehicle. Angelo Ciullo did not appeal from these convictions. See State v.
Ciullo, supra, 140 Conn. App. 398 n.1.
4
We note that this case involves a credibility dispute between the testi-
mony of the two laborers and the defendant as to the extent of the defendant’s
display of his gun. See footnote 26 of this opinion.
5
The defendant also claimed that: (1) ‘‘the trial court improperly instructed
the jury on the elements of unlawful restraint, self-defense and the defense
of property, and marshaled the evidence in favor of the state’’; (2) ‘‘there
was insufficient evidence to prove that he had committed the crime of
unlawful restraint in the first degree’’; (3) ‘‘the court abused its discretion
with respect to alleged juror misconduct’’; and (4) ‘‘the court improperly
precluded him from entering a surveillance videotape into evidence and
from eliciting certain testimony of a witness.’’ State v. Ciullo, supra, 140
Conn. App. 395–96.
6
We granted the defendant’s petition for certification to appeal, limited
to the following issue: ‘‘Did the Appellate Court properly determine that the
defendant was not denied his right to a fair trial based upon several instances
of claimed prosecutorial impropriety?’’ State v. Ciullo, 308 Conn. 919, 62
A.3d 1133 (2013).
7
See State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989) (setting
forth four-pronged test to prevail on unpreserved constitutional claim).
8
The Williams factors are: ‘‘[1] the extent to which the [impropriety] was
invited by defense conduct or argument . . . [2] the severity of the [impro-
priety] . . . [3] the frequency of the [impropriety] . . . [4] the centrality
of the [impropriety] to the critical issues in the case . . . [5] the strength
of the curative measures adopted . . . and [6] the strength of the state’s
case.’’ (Citations omitted.) State v. Williams, supra, 204 Conn. 540.
9
The state also asserts that the defendant waived his claims of prosecu-
torial impropriety. We disagree. We note that defense counsel objected to
many of the statements at issue, both during closing arguments and prior
to the jury charge. The extent to which defense counsel acceded to the use
of the jury charge to attempt to ameliorate the effect of the prosecutor’s
comments will be weighed in our discussion of the relevant Williams factors,
such as the severity of the impropriety and the strength of the curative
measures adopted. See State v. Luster, supra, 279 Conn. 426–28; State v.
Williams, supra, 204 Conn. 540.
10
The prosecutor’s comment, in his discussion of the alleged assault of
Pinchuk, was as follows: ‘‘[A] jury is allowed to draw all rational and reason-
able inferences from the evidence. [Pinchuk’s] blood is on that shovel. And
the only place we can see that she bled would be up there on the patio
steps. That’s where the blood had to come from. And that shovel had to be
carried from those back steps down to 176 [Byram Shore Road]. And along
the way the defendant could easily have shoved that shovel into the dirt
numerous times as he ran back to the scene. As a matter of fact, if he was
holding it in one hand, you could almost just picture him with that shovel
hitting the ground, going into the dirt, its edges being cleaned of any human
tissue or any human trace that might have been on the shovel edge. So beyond
a reasonable doubt all roads lead back to the way [Pinchuk] described that
event and that guilt of that man right there.
‘‘The . . . testimony [of the defendant and Angelo Ciullo] does nothing
at all to create a doubt in this case. They leave you a tale that performs
incredible twists and turns as it attempts to weave its way between uncon-
tested facts. How come [Pinchuk’s] blood is on the shovel? [Angelo Ciullo]
says, just coincidentally she happened to fall there.’’ (Emphasis added.)
11
The defendant cites four instances of vouching in the prosecutor’s clos-
ing argument: (1) ‘‘[Diaz] said things that had to be true’’; (2) ‘‘[the laborers]
testified to facts that give their testimony a little ring of truth’’; (3) ‘‘[the
laborers’] honest sense that they have been humiliated is what motivated
them to come in here and testify as honestly and as accurately as they
could’’; and (4) ‘‘[a]s a matter of fact, if you believe them, and they are
credible, the [laborers], they dropped the tools just trying to get out of the
way of the truck.’’
The defendant cites four instances of vouching in the prosecutor’s rebuttal:
(1) ‘‘they testified true and straight and withstood the test of a lengthy
and laborious cross-examination’’; (2) ‘‘those men are credible’’; (3) ‘‘[the
laborers testified] truthfully and accurately’’; and (4) describing the laborers
as ‘‘honest.’’
12
The first four statements, in context, are as follows: ‘‘But how do we
explain the testimony of . . . Diaz? He plainly saw the [defendant] pick up
that shovel and run after [Pinchuk] with the shovel in one hand and the
gun in the other. And . . . Diaz has no motive to lie. He has no lawyer, no
law suit. He doesn’t speak English so he couldn’t conspire with . . . Pinchuk
. . . . And clearly he did not conspire with [Illescas] to say what he said
about [the defendant] picking up the shovel or running after [Pinchuk] with
the gun because [Illescas] says he was facing the other way. And while he
could hear the [defendant] chasing off, he didn’t see it. So he never testified
that he saw the chase. Common sense tells us that there is not a conspiracy
between [the laborers] to give false testimony. If people wanted to conspire
to give false testimony, they would have made up a little bit better of a
story than that.
‘‘As a matter of fact, both [Illescas] and [Diaz] testified to facts that give
their testimony a little ring of the truth. You have . . . Diaz testifying that
he was so scared he ran behind . . . Pinchuk. And that’s not an easy thing
for a man to admit. Just because he doesn’t speak English and he is an
illegal alien, and he has to work hard physical labor that no one else seems
to want to do these days, does not mean that he doesn’t have the same
sense of pride as the rest of us. And no one wants to admit that when the
fur flies, you run behind an old woman. That’s just not human nature. That’s
the type of thing you only admit if it was true. And he came in here and he
said things that had to be true. You just don’t make that up. And that, by
the way, is what common sense tells us what motivated him to come here
in the first place. These two men right there humiliated [the laborers],
whether they are self-aware enough to know that or not. And that honest
sense of outrage by [the laborers], that honest sense that they have been
humiliated is what motivated them to come in here and testify as honestly
and as accurately as they could.’’ (Emphasis added.)
Later, when discussing the defendant’s claim of self-defense, the prosecu-
tor stated: ‘‘[The defendant] did not restrain the [laborers] because they
represented a threat. It is not as if the [laborers] picked up tools when the
truck pulled up. As a matter of fact, if you believe them, and they are
credible, the [laborers], they dropped the tools just trying to get out of the
way of the truck. And they begged and they tried to run and they never
made an aggressive move the entire time. Even the defendants admit no
aggressive move was ever made against them.’’ (Emphasis added.)
13
We place the last four statements in context, though we discuss some
portions of the statements subsequently in this opinion as allegedly improper
appeals to the jurors’ emotions. In the first statement, the prosecutor pointed
to testimony demonstrating that the laborers’ testimony was consistent with
its other witnesses: ‘‘And clearly [the laborers] were cross-examined forever.
I mean, you sat there. You saw what they went through. They got questioned
on everything and they testified true and straight and withstood the test
of a lengthy and laborious cross-examination. . . . And on that cross-
examination they did not budge. And, of course, they corroborate . . .
Pinchuk. . . . [T]here was no call to the police and there [are] no sirens
in the background there either. . . .
‘‘At any rate, I guess this conspiracy has to start the moment that . . .
Pinchuk begins screaming and saying she is seeing a silver gun. The fact
of the matter is . . . that that is ridiculous and there is no conspiracy here
between the Spanish speaking individuals, [Pinchuk], who is from Poland
with the heavy Polish accent, it is difficult to understand [her] even if you
are a native English speaker. And the police are not in on this conspiracy
either to frame them with regard to moving around items in the car or not
listening to this false story about the pulling of the guns and taking the
safety off while it is still pointed at your own leg.’’ (Emphasis added.)
The prosecutor then addressed the facts and specific testimony in support
of unlawful restraint and addresses defense counsel’s arguments for self-
defense, defense of premises, and civilian arrest. In his discussion of whether
the shovel was the instrumentality that caused Pinchuk’s hand wound, the
prosecutor discusses the expert testimony and then the testimony of the
other witnesses: ‘‘And when you hear [the experts] in conjunction with the
way . . . Pinchuk described the event, and the fact that . . . Diaz gives
us really the most important piece of information in the whole case because
you wonder how could somebody do this, you don’t want to believe it, but
[Diaz] saw the [defendant] pick up the shovel, shovel in one hand, gun in
the other, and go after [Pinchuk] down the street. Now, if you can do that,
you can do the rest because you are just that mad. And that answers this
question, how could this have happened? How could he have done it? Well
. . . Diaz answered that for us. And those men are credible. I think they
are both from Peru. I have a feeling like they would have walked over the
Peruvian Andes Mountains to get here.’’ (Emphasis added.)
After this statement, defense counsel objected to the alleged vouching.
The prosecutor quickly clarified for the jury: ‘‘Well, what I will say is that
common sense suggests, I didn’t mean to put it that way, common sense
and the evidence suggest that they would have walked a thousand miles to
testify in this case. And by the way, I don’t have any—let me make something
clear, I am just arguing common sense here, I don’t have any special knowl-
edge or any knowledge that you don’t have.’’
The last two statements also occur while the prosecutor discussed how
a commonsense inference from the stated testimony would lead the jury to
reasonably infer that the laborers had been truthful: ‘‘You could do this
argument and you will do the argument that I just did when you are back
there debating it among yourselves. You don’t need law degrees or anything
like that to make these kinds of arguments. This is all common sense. And
you have as much wits about you as I do. So when you go back there, be
confident in your own common sense and be confident in the wits that God
gives you to figure things out. You know, to draw upon your common
experience as adult[s], as thinking adults. And you will get there and you
will probably say something similar, which is that [the laborers] would have
walked [fifty] miles to come in here and testify against the two men that
humiliated them, made them beg, put guns to them, pointing guns at them,
and treated them as if they were dirt that got dug up out of that driveway
that day. That’s why they were here, honest, outraged. That’s why they
testified truthfully and accurately . . . .’’ (Emphasis added.)
14
A determination of a ‘‘pure credibility case’’ is an inquiry that may be
answered differently depending on the point of view of the inquiring party.
The parties in this case dispute whether this is a ‘‘pure credibility case’’ in
some contexts but not others. For example, the defendant claims that this
case involves ‘‘sharply contested facts’’ during its vouching argument, and
highlights a ‘‘ ‘great conflict’ ’’ in the evidence in its Williams analysis, and
yet boils the case down to a ‘‘central issue of credibility.’’ The state character-
izes this as a ‘‘pure credibility contest’’ initially, but points to conflicting
expert testimony as to whether the shovel caused Pinchuk’s hand injury.
This collateral inquiry unnecessarily complicates the decision on whether
a prosecutor may properly comment on the credibility of the witnesses.
15
The prosecutor’s statement, in the context of his rebuttal, is as follows:
‘‘And clearly [the laborers], they were cross-examined forever. I mean, you
sat there. You saw what they went through. They got questioned on every-
thing and they testified true and straight and withstood the test of a lengthy
and laborious cross-examination. . . . And on that cross-examination they
did not budge.’’ (Emphasis added.)
16
These claims will be considered together because the statements sub-
stantially overlap. The prosecutor’s comments during closing argument, in
context, are as follows: ‘‘[A]re we to believe that [Pinchuk] conspired with
two Spanish only speaking workers to lie about the whole thing? Common
sense compels us to the conclusion that the answer to that is no. And
common sense tells us that someone here is not telling the truth about
what happened out there that day. You have heard the testimony of [Pinchuk]
and you have heard the testimony of the [laborors]. And then you have the
testimony of [the defendant and Angelo Ciullo], and someone is not telling
the truth.’’ (Emphasis added.)
The prosecutor continued: ‘‘[The defendant and Angelo Ciullo] leave you
a tale that performs incredible twists and turns as it attempts to weave its
way between uncontested facts. How come [Pinchuk’s] blood is on the
shovel? [Angelo Ciullo] says, just coincidentally she happened to fall there.
I imagine that’s what that argument will be about. How come [Pinchuk] can
describe the silver gun on her call to the police? Well, the [defendant] says
he carefully went through all of those things where he exposed the weapon.
He never told that to the police. Well, what is his explanation for that? Or
he tried to tell the police, but they just wouldn’t listen to a man describing
how he pulled out a gun. And not even when he told how he carefully lifted
his weapon out so everyone could see it, and he intentionally levered off
the safety on his gun, was anybody interested in listening to him?
‘‘Now, if you use your common sense and our common experience as
adults, does anybody believe that . . . a police detective, wouldn’t be inter-
ested in exploring a man’s tale like the one you heard on the stand, incredible
on its face . . . incredible on its face because who would lever the safety
off while the gun was still pointing at their leg? No one would do that. . . .
‘‘You heard [the] testimony [of the defendant and Angelo Ciullo], and it
was incredible from start to finish, from the moment they said they thought
the police were on their way, from the moment they said the bats and police
club were not visible in the cab of that truck, which means, of course, that
even the police are in on this conspiracy of lies against them, in on this
conspiracy to frame [them] for these crimes. . . . [A]ll those policemen
are in this because they wouldn’t listen to this tale that was concocted here
about lifting the guns. And those other police officers are in on it because
they moved the bats and they moved that police nightstick so that it would
be visible and that these men would be framed. And, of course, [the laborers]
who don’t speak English conspired in this web of lies, which the police
accepted, with the English speaking . . . Pinchuk. Everyone is just lying
here. Everyone is just lying except for [the defendant and Angelo Ciullo].
That is not an argument consistent with their innocence. The exact oppo-
site is true.’’ (Emphasis added.)
The prosecutor’s comments during the rebuttal, in context, are as follows:
‘‘And the fact of the matter is, despite what [defense] counsel says, that
. . . Angelo Ciullo knew [the billy club] was there. He said so. He just forgot
it was there. According to his testimony, if you want to credit it. So even
according to [Angelo Ciullo’s], I submit to you, false testimony, he knows
[the billy club] is in the car, he just forgot he put it there. . . .
‘‘So [Angelo Ciullo] never saw the billy [club] back there? I mean, who
are we kidding, right? You have to keep your story straight when you are
on that witness stand. He couldn’t because it wasn’t true. . . .
‘‘On this conspiracy issue, that conspiracy had to start when [Pinchuk]
was screaming. By the way, you don’t hear sirens on that 911 tape in the
background, do you? I guess maybe the police really weren’t on the way
there like they said. . . .
‘‘At any rate, I guess this conspiracy has to start the moment that . . .
Pinchuk begins screaming and saying she is seeing a silver gun. The fact
of the matter is . . . that that is ridiculous and there is no conspiracy here
between the Spanish speaking individuals, [Pinchuk], who is from Poland
with the heavy Polish accent, it is difficult to understand [her] even if you
are a native English speaker. And the police are not in on this conspiracy
either to frame them with regard to moving around items in the car or
not listening to this false story about the pulling of the guns and taking
the safety off while it is still pointed at your own leg. That’s ridiculous.’’
(Emphasis added.)
17
‘‘Although this principle is cited most often when the testimony of police
officers or government agents has been implicated, the rule is not limited
to such witnesses.’’ State v. Singh, supra, 259 Conn. 709 n.13.
18
In Singh, this court did not ‘‘make the distinction between using the
word ‘wrong’ as opposed to ‘lying.’ . . . Although questioning whether a
witness’ testimony is wrong may, at first blush, seem less egregious, we
conclude that it is nonetheless improper because it requires the witness
to characterize testimony and may lead to the same problematic results.’’
(Citations omitted.) State v. Singh, supra, 259 Conn. 712 n.16.
19
The prosecutor in Albino stated in his closing argument: ‘‘Ladies and
gentlemen, in order for you to find the defendant not guilty of the crime of
murder, you have to find that everybody is wrong in this case. The police
are wrong. The detectives who interviewed him are wrong. The defendant’s
own friends and associates are wrong. . . . [The interpreter] is wrong
. . . . Right? And almost incredible, you’ve got to find that the defendant’s
own statement is wrong, that he was wrong, because he didn’t tell the cops
that he acted in self-defense. You can’t do that. You can’t do that.’’ (Emphasis
in original; internal quotation marks omitted.) State v. Albino, supra, 312
Conn. 783. The prosecutor continued: ‘‘If you find that [the interpreter is]
not credible, then you find the defendant’s version credible, because they’re
in complete conflict, aren’t they? They’re in conflict. Ladies and gentlemen,
in order for you to find the defendant not guilty you have to find that
every single person in this case is wrong.’’ (Emphasis in original; internal
quotation marks omitted.) Id., 784.
20
Moreover, the three references to Pinchuk as a victim were without
prejudicial impact because the defendant was ultimately acquitted of the
alleged assault and unlawful restraint of Pinchuk.
21
The prosecutor’s two statements, in context, are as follows: ‘‘[A]nd the
fact that . . . Diaz gives us really the most important piece of information
in the whole case because you wonder how could somebody do this, you
don’t want to believe it, but [Diaz] saw the [defendant] pick up the shovel,
shovel in one hand, gun in the other, and go after [Pinchuk] down the street.
Now, if you can do that, you can do the rest because you are just that mad.
And that answers this question, how could this have happened? How could
he have done it? Well . . . Diaz answered that for us. And those men are
credible. I think they are both from Peru. I have a feeling like they would
have walked over the Peruvian Andes Mountains to get here.’’ (Emphasis
added.)
After defense counsel’s objection to this statement, the prosecutor contin-
ued: ‘‘Well, what I will say is that common sense suggests, I didn’t mean to
put it that way, common sense and the evidence suggest that they would
have walked a thousand miles to testify in this case. And by the way, I
don’t have any—let me make something clear, I am just arguing common
sense here, I don’t have any special knowledge or any knowledge that you
don’t have.’’ (Emphasis added.)
The prosecutor then discussed how a commonsense inference from the
stated testimony would lead the jury to reasonably infer that the laborers
had been truthful: ‘‘So when you go back there, be confident in your own
common sense and be confident in the wits that God gives you to figure
things out. You know, to draw upon your common experience as adult[s],
as thinking adults. And you will get there and you will probably say something
similar, which is that these guys would have walked [fifty] miles to come
in here and testify against the two men that humiliated them, made them
beg, put guns to them, pointing guns at them, and treated them as if they
were dirt that got dug up out of that driveway that day. That’s why they
were here, honest, outraged. That’s why they testified truthfully and accu-
rately. . . .’’ (Emphasis added.)
22
Though we do not conclude that the state impermissibly vouched for
its witnesses, the state asserted that, to the extent it vouched for the credibil-
ity of its witnesses in its closing argument, its statements permissibly ‘‘pre-
empt[ed]’’ defense counsel’s anticipated invitations for prosecutorial
impropriety. We find absolutely no merit in this argument.
23
We also note that the defendant’s appeal to the Appellate Court claimed
only improper vouching by the prosecutor, which indicates tangentially that
defense counsel may not have thought the other improprieties to have
been severe.
24
We note that some of the alleged improprieties implicate only Angelo
Ciullo, such as the prosecutor’s characterization of Angelo Ciullo’s testimony
about the billy club as ‘‘false.’’ See footnote 16 of this opinion. Angelo Ciullo
is not, however, a party to this appeal. See footnote 3 of this opinion.
25
The trial judge charged: ‘‘Now you have to base your decision on evi-
dence. Evidence in a trial consists of sworn testimony of witnesses elicited
both on direct examination and cross-examination, redirect and re-cross, if
there is any, plus any concessions or stipulations of fact made during the
trial by counsel and any exhibits that were received and marked in evidence.
It is only on the basis of such evidence that you are to make your final
determination of . . . the facts.
‘‘The testimony of witnesses, which was stricken from the record or
exhibits which were merely marked for identification are to be totally disre-
garded by you. In addition, all comments or remarks made by counsel or
between the [c]ourt and counsel must be disregarded by you. In other words,
you must decide the case based solely on the evidence.’’ (Emphasis added.)
26
The defendant testified that ‘‘I then turned around and put my hand on
my gun, and I even bent like this so [Illescas] would see it. You know, listen,
I have a gun, the police are going to come, you are going to be arrested.
. . . I proceeded to put my hand on my gun and after that I undid the snap
to my holster. . . . And then I just lifted it slightly to take the safety off.
. . . I lifted it slightly to take the safety off because once you undo the
snap, right underneath it is the safety. So it’s one motion actually. . . .
[A]nd then I pulled it slightly so I can get my hand around the trigger guard.
. . . The trigger guard is around the trigger . . . . What I did next was
continually show him that I had a gun and continually tell him that the cops
are going to come, you are going to be arrested. . . . As the sirens got
closer . . . Diaz went down and sat on the ground, and . . . Illescas was
almost on the ground.’’