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STATE OF CONNECTICUT v. ROGER RUFFIN
(SC 19206)
Palmer, Zarella, Eveleigh, McDonald, Espinosa,
Robinson and Vertefeuille, Js.
Argued December 4, 2014—officially released March 31, 2015
Raymond L. Durelli, assigned counsel, for the appel-
lant (defendant).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Robin D. Krawczyk, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
ZARELLA, J. The defendant, Roger Ruffin, appeals
from the judgment of the Appellate Court, which
affirmed the judgment of conviction, rendered after a
jury trial, of one count of sexual assault in the first
degree in violation of General Statutes § 53a-70 (a) (2),
one count of sexual assault in the fourth degree in
violation of General Statutes (Rev. to 2009) § 53a-73a
(a) (1) (A), one count of risk of injury to a child in
violation of General Statutes (Rev. to 2009) § 53-21 (a)
(1), and two counts of risk of injury to a child in violation
of General Statutes (Rev. to 2009) § 53-21 (a) (2). The
defendant claims that the assistant state’s attorney
(prosecutor), during her closing argument at trial,
improperly commented on his right not to testify. We
disagree and, accordingly, affirm the judgment of the
Appellate Court.
The jury reasonably could have found the following
facts, which are set forth in the Appellate Court’s opin-
ion. ‘‘In January, 2009, the victim1 was twelve years old.
At that time, the defendant, although married to another
woman, had been dating the victim’s mother for ten
years. During the course of his relationship with the
victim’s mother, the defendant spent time alone with
the victim. The defendant has four children of his own,
one of whom is a daughter similar in age to the victim.
The defendant’s daughter socialized with the victim and
her mother occasionally.
‘‘The victim identified two separate instances of
abuse. First, in January, 2009, the defendant picked up
the victim in order to take her to his daughter’s birthday
party. Instead of going to the party, the defendant
stopped his car in Keney Park in [the city of] Hartford.
The defendant then asked the victim whether she had
any pubic hair. The victim replied that she did not,
and the defendant asked to see. The defendant then
‘tugg[ed]’ on the waist of the victim’s shorts, pulled
her shorts and her underwear down, and touched her
vagina. The victim told the defendant to stop and that
she felt uncomfortable, at which point the defendant
stopped and drove the victim home. The defendant told
the victim not to tell her mother, and, when he parked
the car to drop the victim off, he kissed her and put
his tongue in her mouth; he also told the victim not to
tell her mother about the kiss. A couple of weeks later,
the defendant again drove the victim to Keney Park and
stopped his car. He asked the victim to ‘suck his penis
. . . .’ When the victim told him no, the defendant
unzipped his pants, forced the victim’s head down with
his hand and put his penis into the victim’s mouth. The
defendant moved the victim’s head ‘up and down’ on
his penis with his hand, until the victim told the defen-
dant that she could not breathe and that she wanted
to go home. The defendant took the victim home. The
victim ‘eventually’ told her mother about the first inci-
dent when the defendant touched her vagina, but she
did not tell her mother about the defendant’s forcing
her to perform oral sex.
‘‘On January 30, 2009 . . . Officer James Fierravanti
was called to the victim’s home on a sexual assault
complaint. Fierravanti spoke with the victim for about
twenty minutes, in which time the victim told Fierra-
vanti that the defendant had taken her to the park,
asked if she had pubic hair and ‘attempted to look’; she
did not say there was any physical contact between the
defendant and herself. Fierravanti left the victim’s home
and immediately filed a report with the detective divi-
sion [of the Hartford Police Department]. In February,
2009 . . . Detective Edward Foster contacted the vic-
tim at her house. The victim confirmed the information
she had given to Fierravanti and added information that
was not in Fierravanti’s original report. The victim told
Foster that the defendant had touched her vagina on
the first day in the park; she also disclosed that the
defendant had forced her to perform oral sex. Foster
arranged for the Aetna Foundation Children’s Center
. . . to interview the victim.
‘‘On March 31, 2009, the victim spoke with clinical
child interview specialist Erin Byrne. Foster observed
the interview with Byrne from behind one-way glass.
With the information gathered from the victim’s inter-
views with him and Byrne, Foster obtained and then
executed an arrest warrant for the defendant.
‘‘In September, 2010, the defendant pleaded not guilty
to all charges and proceeded to be tried by a jury. At
trial, the state called the victim, the victim’s mother,
Fierravanti, Foster and Byrne. The defendant called
an investigative social worker from the Department of
Children and Families . . . and the defendant’s wife
[but did not testify himself]. During the victim’s testi-
mony, she stated that she had told different people
about the incidents with the defendant at different
times. Further, she testified that she could not remem-
ber how many times the defendant had kissed her.’’
(Footnotes altered.) State v. Ruffin, 144 Conn. App.
387, 389–91, 71 A.3d 695 (2013).
In her closing argument, the prosecutor began by
emphasizing to the jurors that ‘‘you have to evaluate
each of the witness’ testimony,’’ and discussing gener-
ally how the jurors should assess the credibility of each
witness. The prosecutor then discussed the testimony
of Byrne, the social worker who interviewed the victim,
and the testimony of the victim. In doing so, the prosecu-
tor made the following remarks: ‘‘[The victim’s] testi-
mony about the abuse is consistent within itself
because there’s nothing that she said that couldn’t have
happened the way she reported it, and there’s nothing
that she said that conflicted with something someone
else said about how it happened. She told you what
the defendant said to her. She reported elements of
force and secrecy. She said he forced her head to his
penis. She described how he held her—moved her head
up and down with his hands or his hand. She said he
forced his tongue into her mouth. She told you he told
her not to tell her mother, and those were all things that
Erin Byrne said she looks for to support an allegation.
‘‘Now—and also, objectively, if she’s making up an
allegation, why add something like, he pulled over and
asked me if I had any pubic hair, and then when I told
him no, he pulled over my shorts. Why are you adding
that kind of detail? Where does that come from? Doesn’t
that added detail give the testimony more grain of truth?
‘‘No person’s testimony here gave you any reason to
disbelieve [the victim], nor were you given any reason
why the facts that she described could not have hap-
pened the way she described them. No person’s testi-
mony pointed to any reason why [the victim] would
be lying or talked about a time when she did lie, or
pointed to any motivation at all as to why [the victim]
would falsely accuse [the defendant] of these crimes.
‘‘Also, no person’s testimony pointed to any reason
why her mother . . . would put her up to this. [The
victim’s mother] has not seen or spoken to the defen-
dant since she reported this to the police on January
29 into January 30, 2009. She actually lost out herself.
[The victim’s mother] lost a companion, someone she
trusted, someone that she relied on for financial assis-
tance. She does not benefit by having the defendant
out of her life.’’ (Emphasis added.)
At no point did counsel for the defendant object to
any of the prosecutor’s remarks in her closing argu-
ment. The jury subsequently found the defendant guilty
on all counts, and the trial court sentenced the defen-
dant to a total effective term of ten years incarceration,
followed by eight years of special parole.2
The defendant appealed from the judgment of convic-
tion to the Appellate Court, claiming, inter alia, that the
prosecutor improperly had commented on his right not
to testify when she noted in her closing argument that
no witness had contradicted the victim’s allegations.
State v. Ruffin, supra, 144 Conn. App. 388–89. In a split
decision, the Appellate Court rejected the defendant’s
claim of prosecutorial misconduct and affirmed the
judgment of conviction. Id., 403–404, 407. The majority
reasoned that the prosecutor had not improperly com-
mented on the defendant’s failure to testify but, rather,
had commented only on the credibility of the victim.
Id., 402. The majority further reasoned that there was
no impropriety because the prosecutor never directly
referred to the defendant during the contested portion
of her closing argument, and defense counsel never
objected to the prosecutor’s closing argument. Id., 402–
403. In a concurring and dissenting opinion, Judge
McDonald claimed that the prosecutor’s ‘‘ ‘no conflict-
ing witness’ argument’’ constituted an impermissible
comment on the defendant’s silence because ‘‘the defen-
dant alone has information to contradict [the victim]
as to [her allegations of] sexual abuse . . . .’’3 Id., 409
(McDonald, J., concurring in part and dissenting in
part).
We thereafter granted certification to appeal, limited
to the following issue: ‘‘Did the Appellate Court properly
conclude that the prosecutor did not comment on the
defendant’s right not to testify?’’ State v. Ruffin, 310
Conn. 919, 76 A.3d 634 (2013). On appeal to this court,
the defendant raises largely the same claim that he did
before the Appellate Court—that the prosecutor’s ‘‘no
conflicting witness’’ argument penalized the defendant
for exercising his fifth amendment right not to testify
because the defendant was the only person present
when the alleged sexual assaults occurred and, thus,
the only person who could contradict the victim’s alle-
gations. In response, the state argues that the prosecu-
tor’s remarks constituted proper commentary on the
credibility of the victim. We agree with the state and
conclude that the Appellate Court correctly determined
that the prosecutor did not comment on the defendant’s
right not to testify.
As a preliminary matter, we note that defense counsel
failed to preserve this claim when he failed to object
to the prosecutor’s closing argument. We nevertheless
review the defendant’s claim of prosecutorial miscon-
duct because ‘‘a defendant who fails to preserve claims
of prosecutorial misconduct need not 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-
prong Golding test. . . . The reason for this is that the
defendant in a claim of prosecutorial misconduct must
establish that the prosecutorial misconduct was so seri-
ous as to amount to a denial of due process . . . . In
evaluating whether the misconduct 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). . . . These factors include the extent to which
the misconduct was invited by defense conduct or argu-
ment, the severity of the misconduct, the frequency of
the misconduct, the centrality of the misconduct to the
critical issues in the case, the strength of the curative
measures adopted, and the strength of the state’s case.
. . . The consideration of the fairness of the entire trial
through the Williams factors duplicates, and, thus
makes superfluous, a separate application of the Gold-
ing test.’’ (Citations omitted; internal quotation marks
omitted.) State v. Warholic, 278 Conn. 354, 360–61, 897
A.2d 569 (2006).
‘‘[I]n analyzing claims of prosecutorial misconduct,
we engage in a two step analytical process. The two
steps are separate and distinct: (1) whether misconduct
occurred in the first instance; and (2) whether that
misconduct deprived a defendant of his due process
right to a fair trial. Put differently, misconduct is mis-
conduct, regardless of its ultimate effect on the fairness
of the trial; whether that misconduct caused or contrib-
uted to a due process violation is a separate and distinct
question . . . . As we have indicated, our determina-
tion of whether any improper conduct by the [prosecu-
tor] violated the defendant’s fair trial rights is predi-
cated on the factors set forth in State v. Williams, supra,
204 Conn. 540, with due consideration of whether that
misconduct was objected to at trial.’’ (Internal quotation
marks omitted.) State v. Warholic, supra, 278 Conn.
361–62.
The fifth amendment to the United States constitution
prohibits prosecutors from commenting at trial on a
defendant’s right not to testify.4 Griffin v. California,
380 U.S. 609, 614, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965).
This rule is embodied in General Statutes § 54-84 (a),
which provides in relevant part: ‘‘Any person on trial
for crime . . . may testify or refuse to testify upon
such trial. The neglect or refusal of an accused party
to testify shall not be commented upon by the court or
prosecuting official . . . .’’
‘‘In determining whether a prosecutor’s comments
have encroached upon a defendant’s right to remain
silent, we ask: Was the language used manifestly
intended to be, or was it of such character that the jury
would naturally and necessarily take it to be a comment
on the failure of the accused to testify? . . . Further,
in applying this test, we must look to the context in
which the statement was made in order to determine
the manifest intention which prompted it and its natural
and necessary impact upon the jury. . . . [W]e also
recognize that the limits of legitimate argument 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. . . . Even an indirect
remark by the prosecuting attorney may violate a defen-
dant’s privilege against self-incrimination if it draws the
jury’s attention to the failure of the accused to testify.
. . . Furthermore, [i]n determining the effect of the
state’s words on the jury, we may consider the effect
they had on defense counsel.’’ (Citations omitted; inter-
nal quotation marks omitted.) State v. Rizzo, 266 Conn.
171, 269–70, 833 A.2d 363 (2003).
We also have recognized that a prosecutor’s ‘‘remarks
concerning lack of contradiction [in the state’s evi-
dence] are forbidden only in the exceedingly rare case
where the defendant alone could possibly contradict
the government’s testimony.’’ (Internal quotation marks
omitted.) State v. Walker, 206 Conn. 300, 307–308, 537
A.2d 1021 (1988), quoting United States ex rel. Leak v.
Follette, 418 F.2d 1266, 1269 (2d Cir. 1969), cert. denied
sub nom. Leak v. Follette, 397 U.S. 1050, 90 S. Ct. 1388,
25 L. Ed. 2d 665 (1970); see also United States v. Hast-
ing, 461 U.S. 499, 515 n.6, 103 S. Ct. 1974, 76 L. Ed. 2d
96 (1983) (Stevens, J., concurring in judgment) (‘‘[r]efer-
ence to uncontradicted portions of the [g]overnment’s
evidence is improper only when the statement will natu-
rally and necessarily be construed by the jury to be an
allusion to the defendant’s failure to testify’’). On this
point, the Second Circuit Court of Appeals has held
that, when ‘‘the prosecutor confines himself to arguing
the strength of his case by stressing the credibility and
lack of contradiction of his witnesses, we will not be
astute to find in this a veiled comment on the defen-
dant’s failure to testify even if in practical fact, although
not in theory, no one else could controvert them.’’
United States ex rel. Leak v. Follette, supra, 1270.
In the present case, the defendant claims that the
following remarks made by the prosecutor in her clos-
ing argument violated his fifth amendment right not to
testify: ‘‘[The victim’s] testimony about the abuse is
consistent within itself because there’s nothing that she
said that couldn’t have happened the way she reported
it, and there’s nothing that she said that conflicted with
something someone else said about how it happened.
. . . No person’s testimony here gave you any reason
to disbelieve [the victim], nor were you given any reason
why the facts that she described could not have hap-
pened the way she described them. No person’s testi-
mony pointed to any reason why [the victim] would be
lying or talked about a time when she did lie, or pointed
to any motivation at all as to why [the victim] would
falsely accuse [the defendant] of these crimes.’’
Viewing these remarks in the context in which they
were made, we conclude that the jury would not have
naturally and necessarily taken them to be a comment
on the defendant’s failure to testify. Rather, we believe
that the most reasonable interpretation of the prosecu-
tor’s comments is that they were an argument that the
jury should find the victim credible because of the con-
sistencies in the state’s evidence. For many reasons, it
is clear that the focus of the prosecutor’s comments
was on the credibility of the victim. First, the prosecutor
began her closing argument by explaining to the jurors
how they should assess the credibility of each witness.
Shortly thereafter, in making the challenged remarks,
the prosecutor argued that the victim had no motive to
lie and that the specificity of the victim’s accusations
gave them ‘‘more grain of truth,’’ all of which pertains
to whether the jury should have believed the victim’s
testimony. Thus, in this context, a reasonable jury
would have understood the prosecutor’s remarks as a
commentary on the victim’s veracity, not the defen-
dant’s silence. See State v. Correa, 241 Conn. 322, 359–
60, 696 A.2d 944 (1997) (prosecutor’s comment went
toward weight of evidence rather than defendant’s
refusal to testify); see also United States ex rel. Leak
v. Follette, supra, 418 F.2d 1270.
The prosecutor’s attempts to persuade the jury that
the victim was credible were particularly justifiable in
light of the fact that the victim’s credibility was the
central issue in the case. The state did not introduce
any physical evidence against the defendant, and the
verdict therefore essentially rested on whether the jury
believed the victim’s testimony. Defense counsel had
challenged the victim’s credibility on cross-examina-
tion, and the trial court instructed the jurors that they
could believe all, none or any part of any witness’ testi-
mony. Thus, it was necessary for the prosecutor to
point out why the jury should find the victim credible in
anticipation of defense counsel’s attack on the victim’s
credibility in his own closing argument. See, e.g., United
States v. Monaghan, 741 F.2d 1434, 1439 (D.C. Cir. 1984)
(‘‘[t]he prosecution cannot be shut off from fair com-
ment on the strength of its own witness’s testimony,
particularly when it is relying principally on one witness
and that witness has been severely challenged by the
defense’’), cert. denied, 470 U.S. 1085, 105 S. Ct. 1847,
85 L. Ed. 2d 146 (1985); see also United States v. Rob-
inson, 485 U.S. 25, 34, 108 S. Ct. 864, 99 L. Ed. 2d
23 (1988) (prosecutor is not prohibited ‘‘from fairly
responding to an argument of the defendant’’).
We also agree with the Appellate Court that the fact
that the prosecutor never directly referred to the defen-
dant in her comments, and the fact that defense counsel
did not contemporaneously object to the allegedly
improper comments, further supports the conclusion
that the prosecutor’s comments were within the consti-
tutional limits prescribed by the fifth amendment.5 State
v. Ruffin, supra, 144 Conn. App. 403. Because we con-
clude that the prosecutor did not engage in any impro-
priety, we need not reach the issue of whether the
defendant was deprived of his due process right to a fair
trial. See, e.g., State v. Warholic, supra, 278 Conn. 361.
We reject the defendant’s argument that the prosecu-
tor’s ‘‘no conflicting witness’’ argument was improper
because the defendant was the only person who could
refute the victim’s accusations. Although it is true that
the defendant was the only person who could contradict
the victim’s testimony with respect to the details of the
alleged sexual assaults, there were witnesses other than
the defendant who could have, and did, contradict other
aspects of the victim’s allegations. For instance, the
defendant’s wife testified that, during the period in
which the alleged assaults occurred, she was in North
Carolina with the couple’s blue BMW whereas the
defendant was in Connecticut with another vehicle,
which contradicted the victim’s testimony that the
defendant had assaulted her while they were in his blue
BMW. Additionally, the victim’s mother, who corrobo-
rated the victim’s testimony that the defendant twice
picked her up in his car, could have contradicted the
victim’s timeline of events. Thus, this is not one of the
‘‘exceedingly rare’’ cases in which the defendant alone
could have contradicted the state’s evidence. (Internal
quotation marks omitted.) State v. Walker, supra, 206
Conn. 307. The fact that no one other than the defendant
could contradict the details of the alleged assaults them-
selves is not dispositive. See United States v. Stroman,
500 F.3d 61, 66 (1st Cir.) (concluding that other witness
could have contradicted ‘‘many elements . . .
although admittedly not all’’ of defendant’s confession
that he had possessed handgun and hid it in building
while he was alone), cert. denied, 552 U.S. 1050, 128 S.
Ct. 674, 169 L. Ed. 2d 528 (2007).
Finally, we note that, although the prosecutor did
not comment on the defendant’s failure to testify, ‘‘[a]
prosecutor does take a risk whenever the ‘not contra-
dicted’ argument is made’’; id.; and that prosecutors
generally should avoid taking this unnecessary risk.
See, e.g., State v. Lemon, 248 Conn. 652, 666, 731 A.2d
271 (1999). Whenever possible, prosecutors should use
alternative means to emphasize the credibility of their
witnesses and the strength of the state’s evidence, and
avoid language that could be misinterpreted as a veiled
comment on the defendant’s failure to testify.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
In accordance with our policy of protecting the privacy interest of victims
of sexual abuse and the crime of risk of injury to a child, we decline to
identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
2
Specifically, ‘‘the [trial] court sentenced [the defendant] to serve ten
years in prison on the charge of sexual assault in the first degree in violation
of § 53a-70 (a) (2) (five years mandatory minimum and eight years of special
parole); seven years on the charge of risk of injury to a child in violation
of § 53-21 (a) (2) (five years mandatory minimum); five years on the charge
of risk of injury to a child in violation of § 53-21 (a) (1); five years on the
charge of sexual assault in the fourth degree in violation of § 53a-73a (a)
(1) (A); and five years on the charge of risk of injury to a child in violation
of § 53-21 (a) (2). All sentences were to be served concurrently.’’ State v.
Ruffin, supra, 144 Conn. App. 394.
3
Judge McDonald also asserted that Byrne, the social worker, had
‘‘improperly vouched for [the victim’s] testimony’’; State v. Ruffin, supra,
144 Conn. App. 413 (McDonald, J., concurring in part and dissenting in
part); because the prosecutor had, in her closing argument, improperly
referred to the fact that Byrne testified that the victim’s allegations were
supported. The majority treated this issue involving Byrne’s testimony as a
separate issue from the alleged prosecutorial misconduct and concluded
that it was an unpreserved evidentiary claim. Id., 398–99. In his petition for
certification to appeal, the defendant raised this evidentiary claim but we
did not grant certification as to that issue. See State v. Ruffin, 310 Conn. 919,
76 A.3d 634 (2013). Accordingly, we decline to address this evidentiary issue.
4
This prohibition is applicable to state prosecutions by virtue of the due
process clause of the fourteenth amendment to the United States constitu-
tion. See Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L. Ed.
2d 106 (1965).
5
We also agree with the Appellate Court that neither State v. Rizzo, supra,
266 Conn. 171, nor State v. DeMartino, 7 Conn. App. 292, 508 A.2d 809
(1986), supports the defendant’s claim that the prosecutor’s comments were
improper. The Appellate Court correctly distinguished Rizzo from the pres-
ent case on the basis that the prosecutor in Rizzo, unlike the prosecutor
in the present case, directly referred to the fact that the defendant in Rizzo
had not testified. State v. Ruffin, supra, 144 Conn. App. 400–401; see State
v. Rizzo, supra, 270. Likewise, the Appellate Court correctly concluded that
DeMartino is not analogous to the present case because, in DeMartino, the
prosecutor repeatedly posed to the jury questions that only the defendant
in that case could answer, thereby highlighting his failure to testify. State
v. Ruffin, supra, 401; see State v. DeMartino, supra, 295.