State v. Joseph R. B.

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 STATE OF CONNECTICUT v. JOSEPH R. B.*
(AC 37808)
Lavine, Beach and West, Js.
Argued December 7, 2016—officially released May 30, 2017

(Appeal from Superior Court, judicial district of
Litchfield, Ginocchio, J.)
Naomi T. Fetterman, for the appellant (defendant).
Jennifer F. Miller, deputy assistant state’s attorney,
with whom, on the brief, were David S. Shepack, state’s
attorney, and David R. Shannon, senior assistant state’s
attorney, for the appellee (state).
 Opinion

BEACH, J. The defendant, Joseph R. B., appeals from
the judgment of conviction, rendered after a jury trial,
of one count of risk of injury to a child in violation of
General Statutes (Rev. to 2011) § 53-21 (a) (1). The
defendant claims that (1) the evidence adduced at trial
was insufficient to support his conviction and (2) cer-
tain comments made by the prosecutor violated his
fifth amendment right to remain silent. We affirm the
judgment of the trial court.
The following facts and procedural history are rele-
vant. On September 27, 2011, at approximately 6:30
a.m., H, the defendant’s girlfriend, awoke and fed the
victim, the five month old son of H and the defendant.
At approximately 9 a.m., H left for work, leaving the
defendant as the victim’s sole caretaker. When she left
for work, the victim was ‘‘fine.’’
Despite the fact that H was not supposed to receive
telephone calls at work, the defendant telephoned H at
work at approximately noon to tell her that the victim
had caught his leg in the slats of the crib and it had
been twisted in the effort to free it, but he said that the
victim had not been injured. At approximately 3:30 p.m.,
H met the defendant at home, during a work break,
for a scheduled home visit with Rachel Rosa, a social
worker with the Department of Children and Families
(department). Rosa’s visit lasted about one-half hour,
and, during that time, Rosa did not notice any trauma
to the victim; she did notice that he was fussy and
appeared uncomfortable. The defendant told Rosa that
the victim had been fussy and that at approximately 2:30
p.m. the victim had finally fallen asleep. H attempted
unsuccessfully to alleviate the victim’s fussiness by
feeding him. She took the victim’s temperature, which
was normal, and the victim was given Tylenol. During
the visit, H held the victim and did not notice any defor-
mity or obvious trauma to the victim’s leg.
D, the victim’s maternal grandmother, arrived at the
house while H, the defendant, Rosa and the victim were
present. D’s workday ended at 3:30 p.m. and she would
frequently babysit for the victim from 3:30 p.m. until H
could pick up the victim, usually around 9:30 p.m. The
defendant informed D that he could not watch the vic-
tim that night because he might have to work and was
waiting for a telephone call in that regard. The defen-
dant told D that the victim ‘‘hadn’t been sleeping and
eating and was fussy’’ and explained that the victim
was teething. D placed the victim in the car seat and
noticed that he was ‘‘whining and crying’’ although he
usually was ‘‘[a] pretty happy baby.’’ D took the victim
to her residence. When D fed the victim a bottle, she
noticed a red mark ‘‘on his knee area’’ and she began
to rub the area, but stopped when the victim ‘‘screamed
very loud.’’ The victim also cried loudly when D put
him into his nighttime pajamas.
At approximately 9:45 p.m., H arrived at D’s residence
to take the victim home. At that time, D informed H
that the victim ‘‘had been really cranky’’ and that she
had noticed a spot on the victim’s leg. As soon as H
saw the victim she noticed that his leg was ‘‘in a frog
position.’’ H told D that she was going to take the victim
to the emergency room. When H put the victim in her
car, D noticed that the defendant was sitting in the
passenger seat of the car. When D asked the defendant
why he did not watch the victim if he did not have to
work, the defendant bowed his head and did not
answer.
Upon arriving at Charlotte Hungerford Hospital, H
informed the triage nurse that the defendant had told
her that at around noon the victim had been crying as
a result of having caught his left leg in the slats of his
crib and that the defendant had freed the leg. The triage
nurse immediately sent the child to Alison Tieman, an
emergency room nurse, who evaluated the victim. Upon
examining the victim’s left leg, Alison Tieman noticed
that it was ‘‘very obviously . . . drawn up, the baby
was not willing to straight[en] out his leg and there was
actually swelling noted . . . between his knee and
thigh area.’’ A physician took an X ray of the victim’s
left leg and found a displaced fracture of the left femur.
When Alison Tieman relayed this information to the
victim’s parents, H was ‘‘hysterically crying’’ and the
defendant was ‘‘sitting quiet.’’ The defendant explained
that at approximately noon he had noticed a line on
the victim’s thigh area that appeared to be swollen, but
the line had vanished.
Jason McIntyre, an officer with the Torrington Police
Department, was dispatched to Charlotte Hungerford
Hospital to investigate the injury. The defendant gave
a statement to McIntyre. The statement, written and
signed by the defendant, was admitted as a full exhibit
at trial. The defendant said in the statement that H had
left for work at approximately 9 a.m. He later fed and
played with the victim and placed him in his crib at
about 11:15 a.m. At about noon, the defendant noticed
that [the victim’s] ‘‘left leg was sticking out of the crib.’’
The defendant extricated the victim’s leg and ‘‘picked
him up to check on his leg.’’ The defendant noticed that
the victim had a red mark on the top of his leg, but he
did not notice any bruising. The defendant held the
victim ‘‘when I got his leg out because he was whining.’’
At 2:30 p.m., the defendant fed the victim some apple
juice. Rosa and H arrived around 3:30 p.m., and D took
the victim to her house. When H arrived at D’s house
later that night she noticed something wrong with the
victim’s left leg and took the victim to the hospital.
The victim, meanwhile, was transferred to Connecti-
cut Children’s Medical Center, where he was treated.
He was also evaluated by the Suspected Child Abuse
and Neglect team (team). Nina Livingston, a physician
board certified in general pediatrics and child abuse
pediatrics, was the director of the team. She testified
at trial that the victim suffered a transverse fracture of
the left femur: ‘‘the bone was completely broken
through in two pieces . . . closer to the knee than to
the hip.’’ Bone disease was ruled out as the cause of
the injury. She explained that ‘‘a transverse fracture is
the result of a bending force. This could result from a
direct blow or from a bending force applied to the bone
in another fashion.’’ Livingston explained that injuries
are evaluated with reference to the child’s develop-
mental level and by taking into account ‘‘what kinds of
trouble they can get into on their own.’’ She stated that
a five month old infant would not be able to cause this
type of injury to himself. When asked if it was the type
of injury that could result from the normal handling
of an infant, Livingston replied ‘‘absolutely not.’’ She
testified that this type of injury would not be expected
to result from a normal effort to remove a five month
old baby’s leg from a crib. Livingston further explained
that at the time of injury the baby would experience
significant pain. If, however, the leg were still for a
period of time, Livingston stated that the infant may
calm down and may even eat or intermittently sleep.
Once the leg was moved, however, the infant would
exhibit pain behavior such as crying or being exces-
sively fussy. Livingston also noted that symptoms of
pain and swelling could go unnoticed for hours.
At about midnight on September 28, 2011, Michael
Pitruzzello, an investigator with the department,
received a telephone call from staff at Charlotte Hun-
gerford Hospital stating that a five month old patient
at the hospital had a broken femur, that the explanation
given for the victim’s injury was suspicious, that the
injury was not consistent with the explanation pro-
vided, and that the child was being transported to Con-
necticut Children’s Medical Center. Pitruzzello
interviewed the victim’s parents. The defendant
explained to Pitruzzello that he lived in the house where
the victim resided and that he was the sole caretaker
of the victim from the time H left for work until she
returned at 3:30 p.m. He said that the victim had gotten
his leg stuck in the crib but that he had freed it with
relative ease. He did not offer an explanation to Pitruz-
zello as to how the injury had occurred.
On the morning of September 28, 2011, Kevin Tieman,
a detective with the Torrington Police Department,
interviewed the defendant at his residence. The defen-
dant stated that although at one point the victim had
his leg caught in the slats of the crib, he did not notice
any injury. He said that he made a telephone call to H
and the victim then went to sleep. The defendant asked,
‘‘Well, what if it was an accident?’’ The defendant men-
tioned a second possible scenario in which he may have
leaned forward and put some pressure on the victim
but that the victim did not make any sound.
Following a trial, the jury found the defendant guilty
of risk of injury to a child. The court imposed a total
effective sentence of ten years incarceration, execution
suspended after five years, and five years probation
with special conditions. This appeal followed.
I
The defendant first claims that there was insufficient
evidence to support his conviction of risk of injury to
a child. He argues that there was no physical evidence
of the cause, the timing or the identity of the perpetrator
of the injury, and that his conviction was based on pure
speculation.1 We reject his arguments.
‘‘When reviewing sufficiency of the evidence claims,
we impose a two part analysis. First, we construe the
evidence in the light most favorable to sustaining the
verdict. . . . Second, we determine whether, from that
evidence and all the reasonable inferences which it
yields, a [trier of fact] could reasonably have concluded
that the defendant was guilty beyond a reasonable
doubt. . . . In this process of review, it does not dimin-
ish the probative force of the evidence that it consists,
in whole or in part, of evidence that is circumstantial
rather than direct.’’ (Citation omitted; internal quotation
marks omitted.) State v. Burrus, 60 Conn. App. 369,
372, 759 A.2d 149 (2000), cert. denied, 255 Conn. 936,
767 A.2d 1214 (2001).
General Statutes (Rev. to 2011) § 53-21 (a) provides
in relevant part: ‘‘Any person who (1) wilfully or unlaw-
fully causes or permits any child under the age of six-
teen years to be placed in such a situation that the life
or limb of such child is endangered, the health of such
child is likely to be injured or the morals of such child
are likely to be impaired, or does any act likely to impair
the health or morals of any such child . . . shall be
guilty of a class C felony . . . .’’ Section 53-21 (a) (1)
‘‘comprise[s] . . . two distinct prongs, the situation
prong and act prong . . . .’’ (Internal quotation marks
omitted.) State v. Owens, 100 Conn. App. 619, 635, 918
A.2d 1041, cert. denied, 282 Conn. 927, 926 A.2d 668
(2007). The defendant was charged under the ‘‘act’’
prong. ‘‘Under the act prong of our risk of injury statute
[t]he four elements the [fact finder] needed to find to
return a verdict of guilty are: (1) the victim was less
than sixteen years old; (2) the defendant committed an
act upon the victim; (3) the act was likely to be injurious
to the victim’s health . . . and (4) the defendant had
the general intent to commit the act upon the victim.’’
(Emphasis omitted; internal quotation marks omitted.)
State v. Patterson, 131 Conn. App. 65, 78–79, 27 A.3d
374 (2011), aff’d, 308 Conn. 835, 68 A.3d 83 (2013).
‘‘Specific intent is not a necessary requirement of [§ 53-
21 (a) (1)]. Rather, the intent to do some act coupled
with a reckless disregard of the consequences . . . of
that act is sufficient to [establish] a violation of the
statute.’’ (Internal quotation marks omitted.) State v.
Sorabella, 277 Conn. 155, 173, 891 A.2d 897, cert. denied,
549 U.S. 821, 127 S. Ct. 131, 166 L. Ed. 2d 36 (2006).
The defendant argues that there was insufficient evi-
dence to support the conclusion that he caused the
injury to the victim. He contends that the evidence
presented at trial did not establish beyond a reasonable
doubt the state’s theory that he handled the victim
roughly when the victim’s leg was caught between the
slats of his crib, thereby causing his femur to break.
The defendant argues that there was no evidence that
the injury had occurred during the time he was the
victim’s sole caretaker, that he was the perpetrator or
that he had the requisite intent. He argues that he ceased
being the victim’s sole caretaker at approximately 3:30
p.m. when Rosa and H arrived at the house, and that
Rosa changed the victim’s diaper twice and did not
observe any injuries to the victim, even though the
injury was described as obvious by the emergency room
nurse. He claims that D took the victim to her house
at approximately 3:30 p.m., but the injury was first dis-
covered by H at approximately 9:45 p.m., when she
picked the victim up at D’s house. Neither Livingston
nor McIntyre were able to determine exactly how the
injury was caused.
Viewing the evidence in the light most favorable to
sustaining the verdict, we conclude that the jury reason-
ably could have found that the defendant was the perpe-
trator and that he possessed the requisite general intent.
There was evidence that the injury occurred sometime
between 9 a.m. and 3:30 p.m. on September 27, 2011,
during which time the defendant was the victim’s sole
caretaker. When H left for work around 9 a.m. she noted
that the victim was fine. During Rosa’s scheduled visit
at 3:30 p.m., the victim was inconsolably fussy.2 When
D took custody of the victim following Rosa’s scheduled
visit, she noticed a red mark on his knee area and he
screamed loudly when she touched it.
A second, consistent logical path supporting the find-
ing of identity could have been followed. The jury rea-
sonably could have found that the victim was unharmed
at 9 a.m. but seriously injured at 9:45 p.m. The defendant
and D were the only people who were alone with the
victim during that time. D described only usual caretak-
ing events during the time in which she was the victim’s
sole caretaker and, according to her, no injury occurred
on her watch. The jury could have reasoned that the
injury occurred either while the defendant was the care-
taker or while D was the caretaker, and if it credited
D’s testimony, then the injury must have occurred dur-
ing the time in which the defendant was the sole care-
taker of the victim. See State v. Andersen, 132 Conn.
App. 125, 143, 31 A.3d 385, 396 (2011) (whether witness’
testimony believable is question for jury), cert. denied,
305 Conn. 906, 44 A.3d 182 (2012).
In his statement to the police, the defendant admitted
that the victim’s left leg had become stuck in the crib.
The left femur, the evidence revealed, was fractured.
The defendant stated that he freed the victim’s leg, and
that later the victim was whining and had a red mark
on the top of his leg. Although the defendant did not
admit to having exerted much force on the victim’s leg,
the jury reasonably could have inferred that he had
caused the fracture, in light of the medical testimony
previously discussed.
Evidence of the defendant’s subsequent actions and
statements provided additional evidential support.
When D asked the defendant why he had not continued
to care for the child despite the fact that he did not
work that day, he did not answer and only bowed his
head. When the defendant and H were informed of the
nature of the injury, the defendant sat quietly. Through-
out the course of the investigation into the victim’s
injury, the defendant told health care professionals,
investigators and police officers about the incident ear-
lier that day when the victim’s leg was caught in the
crib. Livingston testified that a five month old child
could not have inflicted this type of injury on himself
and that the injury was caused by a ‘‘direct blow or
from a bending force.’’ When interviewed by the police
in his home the next day, the defendant offered a differ-
ent explanation, stating that he may possibly have
leaned on the child.
The fact that the evidence as to the defendant’s iden-
tity as the perpetrator, aside from his statement to
police, was largely circumstantial does not undermine
the verdict. ‘‘There is no distinction between direct and
circumstantial evidence as far as probative force is con-
cerned. . . . Indeed . . . circumstantial evidence
may be more certain, satisfying and persuasive than
direct evidence. . . . Where . . . the identification of
the defendant . . . is derived from circumstantial evi-
dence, we examine the cumulative impact of a multi-
tude of factors in order to determine whether the
identification of the defendant has been satisfactorily
established by the circumstantial evidence. . . . The
issue of the identification of the accused as the perpetra-
tor of the crime is peculiarly one of fact to be resolved
by the jury. . . . If evidence, whether direct or circum-
stantial, should convince a jury beyond a reasonable
doubt that an accused is guilty, that is all that is required
for a conviction.’’ (Citations omitted; internal quotation
marks omitted.) State v. Scales, 38 Conn. App. 225,
228–29, 660 A.2d 860 (1995).
We turn briefly to the issue of intent. As noted pre-
viously, specific intent is not an element of risk of injury
to a child; rather, only the general intent to do the
act with a reckless disregard of the consequences is
required. State v. Sorabella, supra, 277 Conn. 173. A
fact finder may rely on medical testimony to determine
intent. See State v. McClary, 207 Conn. 233, 244, 541
A.2d 96 (1988) (medical testimony used to establish that
infant’s injury caused by intentional shaking). ‘‘Because
direct evidence of the accused’s state of mind is rarely
available . . . intent is often inferred from conduct
. . . and from the cumulative effect of the circumstan-
tial evidence and the rational inferences drawn there-
from.’’ (Internal quotation marks omitted.) State v. Otto,
305 Conn. 51, 66, 43 A.3d 629 (2012). In this case, Living-
ston testified that the injury could not have been self-
inflicted and could not have resulted from normal han-
dling; rather, it had to have been caused by a direct
blow or bending. This testimony, coupled with the
defendant’s admissions noted previously, is sufficient
evidential support for the conclusion that the defendant
had the general intent to perform the act of subjecting
the child’s leg to undue force with a reckless disregard
of the consequences.
II
The defendant next claims that the prosecutor made
improper comments during closing and rebuttal argu-
ments, and thereby violated his right, guaranteed by
the fifth amendment to the United States constitution,
to remain silent. We disagree.
‘‘[W]hen the defendant claims that the prosecutorial
impropriety infringed a specifically enumerated consti-
tutional right, such as the fifth amendment right to
remain silent . . . the defendant initially has the bur-
den to establish that a constitutional right was violated.
. . . If the defendant establishes the violation, how-
ever, the burden shifts to the state to prove that the
violation was harmless beyond a reasonable doubt.’’
(Citations omitted; emphasis omitted; internal quota-
tion marks omitted.) State v. A. M., 324 Conn. 190, 198,
152 A.3d 49 (2017).
We first must determine whether the defendant estab-
lished that the prosecutor’s remarks during his closing
and rebuttal argument violated the defendant’s fifth
amendment right to remain silent.3 ‘‘It is well settled
that comment by the prosecuting attorney . . . on the
defendant’s failure to testify is prohibited by the fifth
amendment to the United States constitution.’’ (Internal
quotation marks omitted.) State v. Ruffin, 144 Conn.
App. 387, 400, 71 A.3d 695 (2013), aff’d, 316 Conn. 20, 110
A.3d 1225 (2015). Additionally, our legislature enacted
General Statutes § 54-84 (a), which provides in relevant
part: ‘‘Any person on trial for crime shall be a competent
witness, and at his or her option 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 . . . .’’
The comments at issue do not directly refer to the
defendant’s decision not to testify. We employ the ‘‘natu-
rally and necessarily’’ standard ‘‘when it is unclear
whether the prosecutor’s comments at issue referred
to the defendant’s failure to testify . . . .’’ State v. A.
M., supra, 324 Conn. 202. Under this standard 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. . . . Finally, [w]e also recognize that
the limits of legitimate argument and fair comment can-
not be determined precisely by rule and line, and some-
thing must be allowed for the zeal of counsel in the
heat of argument.’’ (Internal quotation marks omitted.)
State v. Parrott, 262 Conn. 276, 293, 811 A.2d 705 (2003).
We further note that ‘‘to violate the fifth amendment,
the prosecutor’s comments need not imply that the jury
should draw an adverse inference from the defendant’s
silence. It is enough that the comment by an adverse
party calls the jury’s attention to the defendant’s silence
because any such comment heighten[s] the jury’s
awareness of the defendant’s silence, namely, his failure
to answer to the state’s charges . . . [and] is improper.
. . . When the defendant chooses not to testify, he
takes the risk that the jury will view his silence with
skepticism—a prosecutor’s explicit reminders to the
jury of the defendant’s decision serves only to heighten
this risk, burdening the defendant’s constitutional right
to remain silent. . . . Although the extent to which the
prosecutor’s comments implied that the jury should
hold the defendant’s silence against him may relate to
the harmfulness of the violation, it does not impact our
conclusion that a violation occurred in the first place.’’
(Citations omitted; internal quotation marks omitted.)
State v. A. M., supra, 324 Conn. 203–204.
The defendant argues that the prosecutor repeatedly
urged the jury to draw an unfavorable inference from
his decision not to testify by telling the jury in different
contexts that the defendant ‘‘knows what he did.’’4 He
argues that the prosecutor improperly remarked on the
defendant’s failure to testify by implying that he was
the only person who could provide the missing informa-
tion. He further argues that the remarks implied that
the defendant had knowledge of his guilt and that he
did not testify because he did not want the jury to
discover his guilt.
Viewing the remarks in the context of the evidence
presented at trial and the entirety of the prosecutor’s
argument, we think it unlikely that the jury interpreted
them as referring to the defendant’s failure to testify.5
The comments directed the jury’s attention to circum-
stantial evidence presented at trial. The prosecutor tried
to persuade the jury that the defendant had the general
intent to do the act of removing the victim’s leg from
the slats of the crib in a forceful manner with a reckless
disregard for the consequences. See State v. Sorabella,
supra, 277 Conn. 173. The prosecutor’s comments that
the defendant ‘‘knew he used too much force,’’ that he
‘‘knows why he used way too much force,’’ that ‘‘he
did nothing about it,’’ and that he ‘‘compounded [his]
mistake by not telling [H]’’ addressed the defendant’s
intent in removing the victim’s leg from the crib and
could be viewed as styling the defendant’s admitted
behavior as consciousness of guilt. The comments were
based on evidence and did not draw attention to the
defendant’s failure to testify. The comments helped to
develop the state’s theory that the defendant’s action
in removing the child’s leg from the crib, which conduct
the defendant admitted in his statement to police, was
not an accident; rather, the defendant intended to exert
the force that was used.
The prosecutor discussed the defendant’s statement
to Rosa that the victim had gone to sleep and argued that
the statement showed a desire to conceal the victim’s
injury. The prosecutor mentioned the defendant’s
requesting that D watch the victim, despite his availabil-
ity, to demonstrate his state of mind. Even if the com-
ments conceivably were ambiguous—in that they
perhaps could be viewed as inviting refutation that
never occurred—they nonetheless were not improper.
‘‘[W]hen a prosecutor’s potentially improper remarks
are ambiguous, a court should not lightly infer that a
prosecutor intends an ambiguous remark to have its
most damaging meaning or that a jury, sitting through
a lengthy exhortation, will draw that meaning from the
plethora of less damaging interpretations.’’ (Internal
quotation marks omitted.) State v. Felix R., 319 Conn.
1, 9, 124 A.3d 871 (2015). The prosecutor referenced
only those statements that were made by the defendant
to others at the time of the events in question. We
conclude that the prosecutor’s comments regarding the
defendant’s knowledge that he had used too much force
when freeing the victim’s leg did not infringe on the
defendant’s constitutional right to remain silent.
The defendant also challenges another argument
made by the prosecutor during rebuttal: ‘‘[Defense
counsel] said to you, ‘We would all like to find out who
did this.’ And the state argues to you right now there’s
one person in this room who hopes we don’t find out
who did it. And he’s sitting right there. Because he
knows what he did, he knows that he handled that child
too roughly. He knows that resulted in a traumatic
injury to his child and he didn’t do anything about it,
he tried to cover it up.’’ (Emphasis added.) He argues
that the italicized remarks cast the defendant’s silences
as a ‘‘purposeful impediment to the trial’s truth-seeking
function’’ and that the jury would necessarily take these
remarks to be a comment on the defendant’s decision
not to testify.
 During closing argument, defense counsel presented
the theory that someone other than the defendant
caused the injury and implied that the injury occurred
when the victim was in D’s care. Defense counsel stated:
‘‘We would all like to be able to know who actually
committed this crime.’’ During rebuttal argument, the
prosecutor responded to this statement. ‘‘It is well
established that [a] prosecutor may respond to the argu-
ment of defense counsel during rebuttal.’’ (Internal quo-
tation marks omitted.) State v. Lindsay, 143 Conn. App.
160, 179, 66 A.3d 944, cert. denied, 310 Conn. 910, 76
A.3d 626 (2013). The comment, invited by defense coun-
sel’s argument, was not improper. See State v. Singh,
259 Conn. 693, 716 n.22, 793 A.2d 226 (2002) (comments
invited by defense counsel’s closing argument not
improper).
The comment, far from ‘‘naturally and necessarily’’
directing attention to a failure to testify, was a reason-
able rhetorical device. When the defense suggested that
everyone would ‘‘like to be able to know who actually
committed the crime,’’ the state’s response was that the
defendant, sitting right there, did not want everyone to
know who did it, because he was the one who did it.
The remark surely directed attention to the defendant,
but not ‘‘naturally and necessarily’’ to his failure to
testify.
The defendant argues that the prosecutor, through
a series of questions beginning with the word ‘‘why,’’
improperly commented on the defendant’s decision not
to testify by asking for explanations that only the defen-
dant could provide.6 ‘‘[C]alling the jury’s attention to
the fact that the defendant did not offer his own in-
court explanation of the events . . . is not allowed.
. . . The test is whether the prosecutor’s comment
. . . calls on the defendant for information or for an
explanation that only the defendant could be expected
to supply. . . . If the comment does so, it is impermis-
sible. . . . The reason for the constitutional and statu-
tory rights given by the fifth and fourteenth
amendments and § 54-84 is to reduce jury speculation
as to why the defendant would remain silent. A com-
ment that the defendant was without a reasonable
explanation or had no reasonable explanation to show
why he was innocent is not necessarily a comment that
the jury would naturally and necessarily interpret as
related to the defendant’s constitutional and statutory
right to decline to testify. A prosecutor also may com-
ment on the failure of a defendant to support his factual
theories.’’ (Citations omitted; internal quotation marks
omitted.) State v. Smalls, 78 Conn. App. 535, 542–43,
827 A.2d 784, cert. denied, 266 Conn. 931, 837 A.2d
806 (2003).
An examination of the applicable case law shows
that questions posed in closing arguments, even when
answers perhaps could be provided by nontestifying
defendants, may, depending on the circumstances, be
permissible. If a comment or question logically refers
to the relative merits or weaknesses of the case, rather
than ‘‘naturally and necessarily’’ to the defendant’s fail-
ure to testify, it passes muster. See State v. Jarrett,
82 Conn. App. 489, 502, 845 A.2d 476 (jury would not
naturally and necessarily interpret prosecutor’s state-
ment that ‘‘ ‘[t]here was no explanation why the defen-
dant had [an insurance policy that was seized during
the search of the apartment] with his other personal
documents’ ’’ as comment on defendant’s failure to tes-
tify), cert. denied, 269 Conn. 911, 852 A.2d 741 (2004);
State v. Bowens, 24 Conn. App. 642, 650–51, 591 A.2d 433
(permissible to argue that money found on defendant
accused of selling drugs was unexplained), cert. denied,
220 Conn. 906, 593 A.2d 971 (1991); State v. Iovieno,
14 Conn. App. 710, 724–25, 543 A.2d 766 (permissible
to refer to ‘‘fingerprint that can’t be explained,’’ where
referring to lack of evidence), cert. denied, 209 Conn.
805, 548 A.2d 440 (1988); State v. Kluttz, 9 Conn. App.
686, 705–706, 521 A.2d 178 (1987) (permissible to ques-
tion whether there was reasonable explanation for con-
duct, where reasonable to infer comment directed to
evidence).
The jury would not naturally and necessarily under-
stand the prosecutor’s remarks to suggest that testi-
mony from the defendant was the only means by which
his rhetorical questions could be answered.7 Rather, the
prosecutor’s comments were based on the evidence
presented and refer to a lack of explanation in the
evidence, other than guilt, for a range of behavior,
including telephoning H to inform her of an inconse-
quential incident, not telling Rosa about the victim’s
having caught his leg in the slats of the crib, remaining
in the car when H picked up the victim from D’s house,
and telling others that the victim was fussy but omitting
the detail from his statement to McIntyre. See, e.g.,
State v. Pires, 122 Conn. App. 729, 750, 2 A.3d 914 (2010)
(remarks referring to lack of explanation given by
defense did not infringe on defendant’s right not to
testify), aff’d, 310 Conn. 222, 77 A.3d 87 (2013). ‘‘A
comment that the defendant was without a reasonable
explanation or had no reasonable explanation to show
why he was innocent is not necessarily a comment that
the jury would naturally and necessarily interpret as
related to the defendant’s constitutional and statutory
right to decline to testify. A prosecutor also may com-
ment on the failure of a defendant to support his factual
theories.’’ State v. Smalls, supra, 78 Conn. App. 543;
see also State v. Colon, 70 Conn. App. 707, 713, 799
A.2d 317 (prosecutor’s comments as to lack of explana-
tion for defendant’s fleeing after crime constituted
attack on defendant’s theory of case, not improper com-
ment on failure to testify), cert. denied, 261 Conn. 933,
806 A.2d 1067 (2002).
The prosecutor’s remarks implicitly asked the jury
to conclude that the defendant was guilty because of
a variety of behaviors. ‘‘[A defendant], by his failure to
testify, cannot insulate himself from general comment
on the weakness of his case, even though his failure
so to testify may be perceived by the jury as having
contributed to the general weakness about which com-
ment is made.’’ State v. Magnotti, 198 Conn. 209, 220,
502 A.2d 404 (1985). We reject the defendant’s con-
tention that prosecutor’s comments naturally and nec-
essarily were interpreted by the jury to be a reference
to his failure to testify.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of the crime of risk of injury to a child, we decline to use the
defendant’s full name or to identify the victim or others through whom the
victim’s identity may be ascertained. See General Statutes § 54-86e.
1
We reject the suggestion that the prosecutor’s comments during closing
argument are germane to the sufficiency issue.
2
During the mid-afternoon visit, neither Rosa nor H noticed any trauma
to the victim’s leg. Livingston testified that although the child would have
experienced significant pain at the time of the injury, the child could eat
or sleep shortly afterwards, but would still experience pain if the leg was
moved.
3
The fifth amendment to the United States constitution, which the four-
teenth amendment makes applicable to the states, provides in relevant part:
‘‘No person . . . shall be compelled in any criminal case to be a witness
against himself . . . .’’
4
In support of his argument, the defendant highlights the following
remarks that were made by the prosecutor during closing and rebuttal
argument:
‘‘He knew he used too much force, he knew that child’s leg broke, he
heard that child scream and he thought, uh-oh, I better do some damage
control, I don’t know.’’
‘‘[N]ow he’s thinking uh-oh, I know what I did, I know the mistake I made
and the mistake I made—I compounded my mistake by not telling my
girlfriend . . . . So, what is he thinking, he knows why he did it, he knows
why he used way too much force.’’
‘‘Think about the audience, think about what happened that day, what
he knows happened . . . .’’
‘‘He was the caregiver present, he knew about it and he did nothing
about it.’’
‘‘Well, why is he saying to them, ‘Hey I just got him to go down.’ And the
[department] worker said, yeah, you know, he said that because he doesn’t
want them to go over and pick up that child or move that child around
because he knows that that’s going to cause the child to cry even more.
Because you move the leg around, the kid is going to start crying again—
the baby is going to start crying again. He knows that. But he says, no, I
may have to go to work. But then he never goes to work. He never goes to
work. So why did he not call the grandmother and say, I’ll come pick him
up or can you drop him back off I’m not going to work. I want to be with
my inconsolable, crying child. Because he doesn’t want to be because he
knows what he did—he doesn’t want to be around that child because he
knows what he did and he’s having major guilt feelings.’’
‘‘Yes, the police officers can’t tell you, they weren’t there, they can’t tell
you who did it. The [department] workers were not there . . . . You know,
we don’t have eye witnesses in these cases; it’s just the way it goes. . . .
If we had an eye witness we wouldn’t be here probably.’’
5
We have construed the phrase ‘‘he knows he did it’’ to be the prosecutor’s
effort to explain the defendant’s behavior at the time of the incident, that
is, that he behaved as he did because he knew he used too much force. We
take this occasion to stress that the state may not even indirectly highlight
a defendant’s failure to testify nor may a prosecutor suggest that he or she
has any private knowledge of the defendant’s guilt.
6
The defendant argues that the following remarks of the prosecutor
were improper:
‘‘Why did he call his . . . girlfriend that day? Why did he call his girlfriend
that day if it was a nonincident? If the child wasn’t hurt at all, if the child
didn’t scream out like Dr. Livingston testified a child would when it first
happened, why did he even call her? Because [H] testified that she’s not
supposed to get calls at work, she could get in trouble when she gets calls
at work. So why would he call and tell her about it if it was just a nonincident?
Think about this. Why would he call her when it happens all the time sup-
posedly?’’
‘‘Why would he tell the mother about this, but then neglect to tell the
[department] worker that’s at the house about it?’’
‘‘If it was really such a nonincident and he didn’t hear that snap why
wouldn’t he say, well—you know, maybe something is wrong with the leg—
you know, maybe there’s some minor ligament tear, or a—something, a
strain. Why doesn’t he say that to her? He said that to the mother, he said
it to his girlfriend. Why doesn’t he tell it to the grandmother as well? The
grandmother is there, he tells her he’s been fussy all day, not napping, not
sleeping, teething, yes, teething. Why not tell her? She’s the one that’s taking
custody of that child. Hey, you might want to watch out there was this
incident—you know, keep an eye on it. Doesn’t tell her. How about the
whole thing that he told Detective Tieman some several days later about
there was an incident that day where he may have slipped or may have fell
or—and put too much weight down on the child. Remember how he told
Tieman that—Detective Tieman, several days later? Why didn’t he tell any
of those people there that day?’’ (Emphasis added.)
‘‘Why would he come all the way in the car, but not get out of the car
and come into the house? Odd.’’
‘‘The last thing I’d like you to think about is why did he give a statement
to Officer McIntyre, under oath, at that hospital and lie in that statement?
. . . . Why did he write that and why did he swear to it and why did he
sign his name under oath? Why did he tell everybody else that he was fussy,
not eating, not napping all day? Think about the audience, think about what
happened that day, what he knows that happened, what’s in the back of
his mind and who his audience is and when he’s talking to them?’’
7
A logical reading of the remarks in question is that they were merely
rhetorical devices to prompt the jurors to mull in their own minds why the
defendant said and did certain things, rather than part of an effort to direct
the jurors’ attention to a failure to testify. Viewed in this light, the issue has
no substance.