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STATE OF CONNECTICUT v. JOSE
DIEGO GONZALEZ
(AC 41512)
Lavine, Keller and Bishop, Js.
Syllabus
Convicted of the crimes of home invasion, sexual assault in the first degree
and of risk of injury to a child, the defendant appealed. The defendant’s
conviction resulted from an incident in which he entered the minor
victim’s apartment while her family was asleep and sexually assaulted
her. The defendant claimed, inter alia, that he was deprived of his
constitutional rights to a fair trial and to be heard by counsel at the
close of evidence because his counsel could not effectively rebut the
prosecutor’s position during closing argument to the jury. The defendant
asserted that his counsel was prevented from knowing how the prosecu-
tor intended to marshal the evidence because she did not present her
substantive discussion of the evidence until the rebuttal portion of her
argument to the jury. Held:
1. The evidence was sufficient to support the defendant’s conviction of
home invasion, as the jury reasonably could have concluded that he
unlawfully entered the victim’s dwelling with the intent to commit the
crime of sexual assault by the use of force: the jury reasonably could
have inferred from the entirety of the evidence that the defendant had
been observing the victim’s dwelling, knew the layout of the apartment
and the family’s sleeping habits, and had been watching the victim
through her bedroom window, as the defendant acknowledged evidence
showing that he entered the dwelling through her brother’s bedroom
window, knew how to get to the victim’s bedroom, asked her age, and
told her that what he was going to do would not hurt before he put a
pillow over her face and sexually assaulted her; moreover, the defendant
was in the apartment for a short period of time, disturbed no one but
the victim, committed no other crime and immediately left after sexually
assaulting the victim, and it defied common sense and experience to
believe that the defendant thought that the victim willingly would have
been open to his sexual predation, such that he believed that he would
not need to use the threat of force to sexually assault her.
2. The defendant could not prevail on his claim that he was entitled to a new
trial, which was based on his assertion that prosecutorial improprieties
during closing argument deprived him of his constitutional rights to a
fair trial and to be heard by counsel at the close of evidence:
a. The format of the prosecutor’s closing argument was not improper
and did not deny the defendant his constitutional right to be heard by
counsel during closing argument; the court did not deny defense counsel
the opportunity to make a final argument to the jury, the arguments of
the prosecutor and defense counsel demonstrated that each was aware
of the evidence and the opposing party’s theory of the case, the defendant
did not identify any controlling authority regarding the use of time in
closing argument, and the record showed that defense counsel reminded
the jury that he had one opportunity to address the jury although the
prosecutor had two opportunities, pointed out the weaknesses in the
state’s case, argued that the DNA evidence was unreliable and that the
state should not be entitled to rely on it, was able to address the eviden-
tiary issues that formed the basis of both portions of the prosecutor’s
final argument and directly attacked statements that the prosecutor
made during her summation.
b. The defendant’s claim that the prosecutor improperly raised new
issues and mischaracterized DNA and fingerprint evidence during her
rebuttal argument was unavailing: the record was inadequate to address
the defendant’s assertion that the prosecutor’s argument about DNA
evidence implicated errors in probabilistic reasoning, as the prosecutor’s
argument was predicated on the evidence, the defendant presented no
evidence to support his claim and failed to object to the prosecutor’s
DNA argument or to seek to correct the claimed misstatement, and
some degree of imprecision can be expected when a layperson discusses
or evaluates scientific or statistical evidence without the benefit of
expert testimony; moreover, the defendant could not have been preju-
diced by the prosecutor’s argument about the fingerprint evidence, as
there was no fingerprint evidence that connected him to the crimes at
issue, and the prosecutor’s comment that fingerprints on a window in
the brother’s bedroom could have been there for 100 years was not
improper, as the point of her argument, which incorporated testimony
by a police officer that the victim’s house was estimated to be 100 years
old, was to emphasize that no one knew when or who put the fingerprints
on the window, and whether the remark was hyperbole or in response
to the argument of defense counsel, the arguments of both counsel had
a basis in the evidence.
c. The defendant could not prevail on his unpreserved claim that he
was entitled to a new trial because his counsel was not given an opportu-
nity to counter the prosecutor’s statement in her rebuttal argument that
the defendant was the only person in Connecticut who could be a
contributor to a certain DNA mixture; defense counsel did not object
to the prosecutor’s statement, and he made clear to the jury in his final
argument all of the problems in the collection, preservation and testing
of the DNA evidence after the prosecutor, at the conclusion of the first
portion of her summation, told the jury that DNA was the key to the case.
3. The defendant could not prevail on his claim that he was entitled to a
new trial on the charge of home invasion because the prosecutor misled
the jury during closing argument about the elements of that crime;
although the prosecutor read the charge of home invasion as it was
stated in the information, indicated that the applicable statute (§ 53a-
100aa) was wordy and gave a shorthand description of that crime, she
more than once told the jurors that the court would instruct them on
the law and that the court’s instructions were what counted, and the
defendant having failed to claim that the court improperly charged the
jury on the crime of home invasion, it was presumed, in the absence of
evidence to the contrary, that the jury followed the court’s instructions.
Argued October 17, 2018—officially released March 12, 2019
Procedural History
Substitute information charging the defendant with
three counts of the crime of sexual assault in the first
degree, and with the crimes of home invasion and risk
of injury to a child, brought to the Superior Court in
the judicial district of New Haven and tried to the jury
before Blue, J.; verdict of guilty; thereafter, the court
denied the defendant’s motions for a judgment of acquit-
tal and for a new trial, and rendered judgment in accor-
dance with the verdict, from which the defendant
appealed. Affirmed.
Kevin W. Munn, assigned counsel, for the appel-
lant (defendant).
Laurie N. Feldman, special deputy assistant state’s
attorney, with whom, on the brief, were Patrick J. Grif-
fin, state’s attorney, and Stacey M. Miranda, senior
assistant state’s attorney, for the appellee (state).
Opinion
LAVINE, J. The defendant, Jose Diego Gonzalez,1
appeals from the judgment of conviction, rendered after
a jury trial, of one count of home invasion in violation
of General Statutes § 53a-100aa (a) (1), three counts of
sexual assault in the first degree in violation of General
Statutes § 53a-70 (a) (2), and one count of risk of injury
to a child in violation of General Statutes § 53-21 (a)
(2). On appeal, the defendant claims that there was
insufficient evidence that he intended to commit sexual
assault by force at the time he entered the victim’s
home.2 He also claims that the prosecutor’s closing
argument was improper and (1) deprived him of his
right to be heard by counsel during final argument, (2)
deprived him of the right to a fair trial, and (3) entitled
him to a new trial on the charge of home invasion.
We disagree and, therefore, affirm the judgment of the
trial court.
The jury reasonably could have found the following
facts on the basis of the evidence presented at trial.
The victim was ten years old on October 15, 2014, when
the defendant entered her first floor apartment in a
three-family house in Meriden at approximately 3:40
a.m. At that time, the victim, her mother, her mother’s
boyfriend, and the victim’s younger siblings and stepsi-
blings were asleep in their respective bedrooms.3 The
front door, a living room window, and the victim’s bed-
room window faced the front of the house above the
porch that ran across the front of the house. The victim’s
brother had a bedroom in the rear of the apartment
with a window above a hatchway that the defendant
could have used to enter the apartment.
Earlier, at approximately 8 p.m., the victim had fallen
asleep in her bed in the room that she shared with her
stepsisters. The victim awoke shortly before 3:45 a.m.
when she felt someone touch her lower back. She saw
a black man with short dreadlocks leaning over her.
She did not know him, asked him who he was, and
what he was doing there. The defendant did not answer
her but asked her how old she was. She stated that she
was eight years old, hoping that he would leave her
alone. The defendant touched the victim’s buttocks
beneath her shorts and underwear. The victim pushed
herself against the wall to stop him. The defendant took
hold of the victim’s ankles and put one over each of his
shoulders and told her that ‘‘this wouldn’t hurt . . . .’’
The defendant pulled the victim’s shorts and under-
wear down to her knees and put a pillow over her face.
He pulled down his own pants, and rubbed and licked
the victim’s vagina before penetrating it with his penis.
The victim tried to get away from the defendant, but she
could not free herself from his grip. When the defendant
finished, he pulled up the victim’s underwear and shorts
and threatened to kill her if she told anyone what he
had done. He covered her with a blanket and told her
to go to sleep. The defendant walked out of the victim’s
bedroom and partially closed the door. The victim
watched him walk through the kitchen toward her
brother’s bedroom. The window in her brother’s room
was wide open. No one else in the house was aware of
the defendant’s presence. The victim’s sisters remained
asleep, and her brother heard nothing.
The victim’s mother had awakened at approximately
3:20 a.m., gone into the kitchen to get a bottle to feed
her infant, and returned to her bedroom. She saw no one
in the apartment at that time. Later, when the victim’s
mother went back to the kitchen, she saw the victim
standing at her bedroom door. The victim, shaking with
fright, ran into the kitchen and stated that there was a
‘‘black guy’’ in her room. When the victim and her
mother entered the victim’s bedroom, they saw the
defendant peering in the window from the front porch.
The victim’s mother had never seen the man before.
He had dark skin and a braid hanging out of his hoodie.
The defendant ran toward the back of the house. The
victim’s mother tried to pursue him, but she could not
keep up with him.
The victim told her mother what the defendant had
done to her. When the victim went to the bathroom,
she saw a clear, wet substance on her vagina and asked
her mother if she could wash. The victim’s mother,
who was medically trained, recognized the presence of
semen in her daughter’s underwear. She instructed the
victim not to wipe off anything. The police were
summoned.
The victim was taken by ambulance to Midstate Medi-
cal Center in Meriden, but because Midstate Medical
Center does not perform rape kits on children, she
was transported to Yale-New Haven Hospital where
Deborah Jane Gallagher, a nurse, administered a rape
kit. Gallagher used swabs to obtain DNA samples from
the victim’s vagina and fourchette, which was torn.
Gallagher also took a sample of the victim’s blood that
would be used to compare the victim’s DNA with the
DNA collected on the swabs. At the conclusion of the
examination, the victim went to the Department of Chil-
dren and Families’ child sexual abuse clinic on Long
Wharf Drive in New Haven, where she was interviewed.
During the forensic interview, the victim described the
perpetrator as having a scratch on his left cheek, clean
shaven, and approximately forty years old. The defen-
dant was twenty-three years old and had a full beard
and mustache when he was arrested two days later.
The police searched the victim’s apartment, focusing
their attention on her bed and two windows in her
brother’s room. They were able to lift fingerprints from
the windows, but some of the fingerprints were insuffi-
ciently defined to be evaluated. Other fingerprints did
not match the defendant’s or those of anyone in the
police database.4
The police identified the defendant, an African-Amer-
ican man with short dreadlocks, as a suspect and
arrested him in Waterbury on October 17, 2014. At the
time of the defendant’s arrest, the police obtained a
sample of the defendant’s DNA from the inside of his
cheek.
Daniel T. Renstrom, a DNA analyst at the state foren-
sics laboratory, testified about his analysis of the DNA
samples that were sent to the laboratory. He developed
profiles of the victim’s and the defendant’s DNA, and
a profile of the DNA on the swabs of the victim’s vagina
and fourchette. Renstrom divided the DNA samples
from the victim’s vagina and fourchette into two compo-
nents, an epithelial or nonsperm-rich fraction and a
sperm-rich fraction. He compared the two fractions to
DNA profiles of the victim and the defendant. The swab
of the victim’s fourchette contained a mixture of DNA,
that is, DNA from more than one contributor. Renstrom
determined that the victim was the source of the epithe-
lial fraction from the DNA sample from her fourchette,
but he could not identify the other contributor due to
an insufficient amount of DNA. Pursuant to the labora-
tory’s policy, Renstrom eliminated the defendant as a
DNA contributor to the DNA mixture from the vic-
tim’s fourchette.
The DNA profile obtained from the swab of the vic-
tim’s vagina also produced a mixed DNA profile. The
swab contained both saliva and spermatozoa. The vic-
tim was a contributor to the epithelial fraction. The
sperm-rich fraction contained a mixture of DNA from
both the victim and the defendant.5 The number of peo-
ple who have the DNA profile that was identified as
the defendant’s is approximately one in 52 million in
the African-American population, one in 37 million in
the Hispanic population, and one in 66 million in the
Caucasian population.
The defendant was charged in a long form informa-
tion with home invasion in violation of § 53a-100aa (a)
(1), three counts of sexual assault in the first degree
in violation of § 53a-70 (a) (2), and one count of risk
of injury to a child in violation of § 53-21 (a) (2). On
December 15, 2016, a jury returned a verdict of guilty
on all counts charged. Thereafter, the defendant filed
a motion for a judgment of acquittal as to his conviction
of home invasion6 and a motion for a new trial on the
ground of prosecutorial impropriety.7 The court denied
both motions. On February 24, 2017, the court sen-
tenced the defendant to an effective term of sixty-five
years imprisonment. The defendant appealed.
I
The defendant first claims that the state failed to
present sufficient evidence for the jury to find that he
intended to commit a sexual assault by force at the
time he entered the victim’s home, as was required to
convict him of home invasion. We disagree.
The state alleged in count one of the long form infor-
mation that on or about October 15, 2014, at approxi-
mately 3:41 a.m., the defendant ‘‘unlawfully entered a
dwelling, while a person other than a participant in the
crime (to wit: [the victim]) was actually present in such
dwelling, with intent to commit a crime therein (to wit:
Sexual Assault in the First Degree [§] 53a-70 [a] [1]),8
and, in the course of committing the offense: he commit-
ted a felony against the person of another person other
than a participant in the crime who was actually present
in such dwelling, said conduct being in violation of [§]
53a-100aa (a) (1) of the Connecticut General Statutes.’’9
(Footnote added.)
‘‘In reviewing a sufficiency of the evidence claim, we
apply a two-part test. First, we construe the evidence
in the light most favorable to sustaining the verdict.
Second, we determine whether upon the facts so con-
strued and the inferences reasonably drawn therefrom
the jury reasonably could have concluded that the
cumulative force of the evidence established guilt
beyond a reasonable doubt. . . . [P]roof beyond a rea-
sonable doubt does not mean proof beyond all possible
doubt . . . nor does proof beyond a reasonable doubt
require acceptance of every hypothesis of innocence
posed by the defendant that, had it been found credible
by the trier, would have resulted in an acquittal. . . .
On appeal, we do not ask whether there is a reasonable
view of the evidence that would support a reasonable
hypothesis of innocence. We ask, instead, whether there
is a reasonable view of the evidence that supports the
jury’s verdict of guilty.’’ (Internal quotation marks omit-
ted.) State v. Brown, 299 Conn. 640, 646–47, 11 A.3d
663 (2011).
‘‘[T]he jury must find every element proven beyond
a reasonable doubt in order to find the defendant guilty
of the charged offense, [but] each of the basic and
inferred facts underlying those conclusions need not
be proved beyond a reasonable doubt. . . . If it is rea-
sonable and logical for the jury to conclude that a basic
fact or an inferred fact is true, the jury is permitted to
consider the fact proven and may consider it in combi-
nation with other proven facts in determining whether
the cumulative effect of all the evidence proves the
defendant guilty of all the elements of the crime charged
beyond a reasonable doubt. . . . Moreover, [w]here a
group of facts are relied upon for proof of an element
of the crime it is [its] cumulative impact that is to
be weighed in deciding whether the standard of proof
beyond a reasonable doubt has been met and each
individual fact need not be proved in accordance with
that standard.’’ (Citations omitted; emphasis added;
internal quotation marks omitted.) State v. Otto, 305
Conn. 51, 65–66, 43 A.3d 629 (2012).
‘‘Furthermore, [i]t is immaterial to the probative force
of the evidence that it consists, in whole or in part, of
circumstantial rather than direct evidence.’’ (Internal
quotation marks omitted.) Id., 66. In fact, ‘‘circumstan-
tial evidence may be more certain, satisfying and per-
suasive than direct evidence.’’ (Internal quotation
marks omitted.) State v. Sienkiewicz, 162 Conn. App.
407, 410, 131 A.3d 1222, cert. denied, 320 Conn. 924,
134 A.3d 621 (2016). ‘‘If evidence, whether direct or
circumstantial, should convince a jury beyond a reason-
able doubt that an accused is guilty, that is all that is
required for a conviction.’’ (Internal quotation marks
omitted.) State v. Jackson, 257 Conn. 198, 206, 777 A.2d
591 (2001).
‘‘Intent is a mental process, and absent an outright
declaration of intent, must be proved through infer-
ences drawn from the actions of an individual, i.e., by
circumstantial evidence. . . . The intent of the actor
is a question for the trier of fact, and the conclusion
of the trier in this regard should stand unless it is an
unreasonable one.’’ (Citation omitted; internal quota-
tion marks omitted.) State v. Barnes, 99 Conn. App.
203, 212, 913 A.2d 460, cert. denied, 281 Conn. 921, 918
A.2d 272 (2007).
On the basis of our review of the evidence, we con-
clude that there was sufficient evidence presented for
the jury reasonably to conclude that the defendant
unlawfully entered the victim’s dwelling with the intent
to commit the crime of sexual assault by use of force.
The evidence that permitted such an inference included,
among other things, the location of the victim’s bed-
room window above the porch; the failure of the vic-
tim’s mother to see the defendant in the dwelling when
she went to the kitchen at 3:20 a.m.; the defendant’s
having gone to the victim’s bedroom and awakened her;
the defendant’s having asked the victim her age and
telling her that ‘‘this wouldn’t hurt’’; the defendant’s
having put a pillow over her face and having sexually
assaulted her; the defendant’s having threatened to kill
the victim if she told anyone what he had done; his
leaving the scene of the assault immediately by walking
through the kitchen and exiting the window in the broth-
er’s bedroom; the lack of evidence of another crime
having been committed in the dwelling; and the victim’s
viewing the defendant peering into her bedroom win-
dow after he exited the dwelling.
The foregoing, along with the evidence in its entirety,
permitted the jury reasonably to conclude that the
defendant entered the apartment to sexually assault the
victim by force. The jury reasonably could have inferred
that the defendant had been observing the dwelling and
knew the layout of the apartment, knew the family’s
sleeping habits, and had been watching the victim
through her bedroom window. The defendant acknowl-
edges that there was evidence that he entered the vic-
tim’s dwelling through her brother’s bedroom window.
The defendant knew how to get from the brother’s room
to the victim’s bedroom and went directly to the victim,
not one of the sisters. He asked her age and told her
that ‘‘this wouldn’t hurt . . . .’’ He was in the apartment
for a short period of time, disturbed no one but the
victim, committed no other crime, and immediately left
after sexually assaulting the victim. ‘‘Common experi-
ence tells us that an unlawful entry into a dwelling at
night is not without purpose. Nor are people accus-
tomed to enter homes of strangers through a window
for innocent purposes.’’ State v. Zayas, 195 Conn. 611,
617, 490 A.2d 68 (1985).
The jury reasonably could have inferred that the man-
ner in which the defendant entered the victim’s dwelling
and carried out his sexual assault of her was circum-
stantial evidence that, when he entered the dwelling,
he had the intent to commit a sexual assault. The single-
mindedness with which the defendant entered the
dwelling, proceeded to the victim’s bedroom, and sexu-
ally assaulted her against her will is compelling evi-
dence of this intent. See State v. Barnes, supra, 99 Conn.
App. 203. Barnes is a case in which the defendant was
charged with, among other things, burglary in the third
degree. Id., 204. On appeal, the defendant, Antonio G.
Barnes, claimed that the state had presented insuffi-
cient evidence to convict him of burglary because there
was insufficient evidence that ‘‘he intended to commit
a crime when he entered the [apartment].’’ Id., 212.
The evidence demonstrated that Barnes entered that
victim’s apartment without consent, took her cellular
telephone, and struck her. Id. He grabbed the victim’s
‘‘arms so that she could not move and, in response to
her statement to [a third party] to telephone the police,
stated that he would be able to hit [the victim] before
the police arrived.’’ Id., 212–13. This court construed
‘‘the evidence in the light most favorable to sustaining
the verdict’’ and ‘‘concluded that the evidence estab-
lished that at the time of entering the dwelling, [Barnes]
intended to commit the crime of assault against [the
victim].’’ Id., 213.
In the present case, the defendant argues that the
state failed to produce sufficient evidence that he had
formed the intent to commit a sexual assault by force
when he entered the dwelling. This argument is predi-
cated on the prosecutor’s summation that did not mar-
shal evidence demonstrating the defendant’s intent
when he entered the dwelling. The defendant has pro-
vided no legal support for the singular proposition that
the prosecutor was required to marshal the evidence
in any particular manner, and we are unaware of any
Connecticut law requiring the state to marshal its evi-
dence as the defendant suggests. Moreover, it is well
known, as the jury was instructed in the present case,
that the arguments of counsel are not evidence and
that it is the jury’s recollection of the evidence that is
controlling. See, e.g., Brown v. Bridgeport Police Dept.,
155 Conn. App. 61, 86, 107 A.3d 1013 (2015); State v.
Spyke, 68 Conn. App. 97, 113, 792 A.2d 93, cert. denied,
261 Conn. 909, 804 A.2d 214 (2002). The court also
instructed the jury that it may not resort to speculation
or conjecture and that its verdict had to be predicated
on the evidence.
The defendant has not persuaded us that the jury
decided the present case on anything other than the
evidence before it. As previously noted, on the basis
of its everyday experience and the evidence, the jury
reasonably may have inferred that the defendant
entered the dwelling with the intent to sexually assault
the victim by means of force. See, e.g., State v. Morocho,
93 Conn. App. 205, 215, 888 A.2d 164 (jury reasonably
may have inferred, on basis of everyday experience and
evidence presented, that by entering victim’s bedroom,
lying on top of her while attempting to kiss and touch
her all over her body, defendant took substantial step
in line of conduct that would culminate in sexual inter-
course), cert. denied, 277 Conn. 915, 895 A.2d 792
(2006). It defies common sense and experience to
believe that the defendant thought that the victim will-
ingly would have been open to his sexual predation,
such that he believed that he would not need to use
the threat of force to sexually assault her.
For the foregoing reasons, we conclude that there
was sufficient evidence to support the defendant’s con-
viction of home invasion and that the trial court prop-
erly denied the defendant’s motion for a judgment of
acquittal on the count of home invasion.
II
The defendant claims that the prosecutor’s closing
argument was improper and therefore (1) deprived him
of his constitutional right to be heard by counsel at the
close of evidence, (2) deprived him of his constitutional
right to a fair trial, and (3) entitled him to a new trial.10
More specifically, he claims that by presenting her sub-
stantive discussion of the evidence during the rebuttal
portion of her summation, the prosecutor prevented
his counsel from knowing how the state intended to
marshal the evidence and, therefore, counsel could not
effectively rebut the state’s position during his closing
argument. He also claims that, during rebuttal argu-
ment, the prosecutor mischaracterized the evidence
and introduced new claims that his counsel could not
correct, and thus deprived him of a fair trial. Finally,
the defendant claims that because the prosecutor
reserved the substantive portion of her argument for
rebuttal, he is entitled to a new trial. We disagree with
each of the defendant’s claims.
The defendant did not object to the prosecutor’s argu-
ment on the grounds he has raised on appeal.11 He seeks
appellate review pursuant to State v. Golding, 213 Conn.
233, 239–40, 567 A.2d 823 (1989), as modified by In re
Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).
Although trial counsel’s failure to object to the prosecu-
tor’s argument is not fatal to the defendant’s appellate
claims, it suggests that trial counsel did not believe that
the argument was improper. State v. Chase, 154 Conn.
App. 337, 343–44, 107 A.3d 460 (2014), cert. denied,
315 Conn. 925, 109 A.3d 922 (2015). We agree that the
defendant’s claims are reviewable because the record is
adequate for review and the claims are of constitutional
magnitude. See State v. Golding, supra, 239. The defen-
dant, however, cannot prevail, as no constitutional vio-
lations exist, and the prosecutor’s final argument did
not deprive him of his constitutional rights. See id., 240.
We begin our analysis of the defendant’s claims by
setting forth the standard of review. ‘‘[I]n analyzing
claims of prosecutorial [impropriety], we engage in a
two step analytical process. The two steps are separate
and distinct: (1) whether [impropriety] occurred in the
first instance; and (2) whether that [impropriety]
deprived a defendant of his due process right to a fair
trial.’’ (Internal quotation marks omitted.) State v. Angel
T., 292 Conn. 262, 275, 973 A.2d 1207 (2009). ‘‘In other
words, an impropriety is an impropriety, regardless of
its ultimate effect on the fairness of the trial. Whether
that impropriety was harmful and thus caused or con-
tributed to a due process violation involves a separate
and distinct inquiry. . . . [If] a defendant raises on
appeal a claim that improper remarks by the prosecutor
deprived the defendant of his constitutional right to a
fair trial, the burden is on the defendant to show . . .
that the remarks were improper . . . . The defendant
also has the burden to show that, considered in light
of the whole trial, the improprieties were so egregious
that they amounted to a denial of due process.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Brett B., 186 Conn. App. 563, 573, A.3d (2018),
cert. denied, 330 Conn. 961, A.3d (2019).
Our Supreme Court ‘‘has acknowledged: [P]rosecu-
torial [impropriety] of constitutional magnitude can
occur in the course of closing arguments. . . . In
determining whether such [impropriety] has occurred,
the reviewing court must give due deference to the fact
that [c]ounsel must be allowed a generous latitude in
argument, as 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. . . . 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.’’ (Internal quotation
marks omitted.) State v. Otto, supra, 305 Conn. 76.
‘‘While the privilege of counsel in addressing the jury
should not be too closely narrowed or unduly ham-
pered, it must never be used as a license to state, or
to comment upon, or to suggest an inference from, facts
not in evidence, or to present matters which the jury
ha[s] no right to consider.’’ (Internal quotation marks
omitted.) State v. Ciullo, 314 Conn. 28, 38, 100 A.3d
779 (2014). ‘‘A prosecutor may invite the jury to draw
reasonable inferences from the evidence; however, he
or she may not invite sheer speculation unconnected
to evidence. . . . Moreover, when a prosecutor sug-
gests a fact not in evidence, there is a risk that the jury
may conclude that he or she has independent knowl-
edge of facts that could not be presented to the jury.’’
(Citations omitted.) State v. Singh, 259 Conn. 693, 718,
793 A.2d 226 (2002). ‘‘The prosecutor’s office caries a
special prestige in the eyes of the jury. . . . Conse-
quently, [i]t is obligatory for prosecutors to find careful
ways of inviting jurors to consider drawing argued infer-
ences and conclusions and yet to avoid conveying the
impression that they are giving their personal views to
the jurors.’’ (Citations omitted; internal quotation marks
omitted.) Id., 722.
The defendant’s claims arise out of the prosecutor’s
closing argument, which consisted of two parts. We
first outline the final arguments of both the prosecutor
and defense counsel to provide a context in which to
consider the defendant’s claims. The prosecutor began
the first portion of her summation by thanking the jurors
for their service and then stated that she intended ‘‘to
highlight’’ some of the evidence, but that the jury’s recol-
lection of the facts was what counted. She also stated
that she was going to ‘‘highlight some points of law,’’
but that the judge was going to instruct the jury on the
law and ‘‘his word goes . . . .’’ She then summarized
the evidence concerning the events that occurred in
the victim’s home during the night of October 15, 2014.
Given those facts, she stated that the state charged the
defendant with home invasion, three counts of sexual
assault in the first degree, and risk of injury to a child.
The prosecutor then stated: ‘‘The judge will give you
the exact definition of these crimes at much more length
than I will, and you will actually get the copy of his
instructions to take with you in the jury room, but I’d
like to summarize them briefly for you.’’
The prosecutor read the first count of the long form
information charging the defendant with home inva-
sion. She stated thereafter that the ‘‘statute is very
wordy, but basically, it means that the defendant had
to unlawfully enter the dwelling while a person was
inside with the intent to commit a sexual assault and
commit a felony while inside against another person
. . . .’’ The prosecutor then addressed each of the three
counts of sexual assault and risk of injury to a child
with which the defendant was charged. She reminded
the jury that the ‘‘judge, again, will have more detailed
instructions and you will have them in the jury room
with you . . . .’’
She concluded the first portion of her final argument
by stating that the jury was going to hear from the
defendant, particularly about fingerprints and mistakes
made by the laboratory and the police, and that the
victim and the victim’s mother were unable to identify
the perpetrator of the crimes from photographs or in
court. Finally, she stated that you ‘‘will hear all of these
things and more from the defense, but while you are
listening to their argument, there are three letters you
will not be able to forget. There are three letters you
will not be able to get out of your head. Those letters
are DNA.’’
Counsel for the defendant then presented his closing
argument. He made a few general remarks and stated
that it was the jury’s recollection of the facts, not his,
that mattered. He stated that he only had one chance
to address the jury. He acknowledged the seriousness
of the facts, and that the jury surely wanted justice for
the victim and ‘‘to believe that the Meriden police got
the right man.’’ He also reminded the jurors that they
had acknowledged during voir dire that ‘‘the verdict
would have to be not guilty’’ if the state had not proved
the case beyond a reasonable doubt.
He argued that the ‘‘majority of evidence in this case
contradicts a piece of evidence that implicates the
defendant.’’ He asked the jury to consider three things:
how much contradictory evidence there was, whether
the evidence against the defendant was corroborated,
and whether the evidence pointing the finger at the
defendant was solid or problematic. He noted that there
was no courtroom identification of the perpetrator and
that the victim’s description of the perpetrator did not
‘‘line up’’ with the defendant’s appearance in four ways:
the victim testified that the perpetrator had no facial
hair, had a scar on his cheek, was dark-skinned, and
was forty years old. He pointed out that when the defen-
dant was arrested, he had a full beard and was twenty-
three years old. A photograph of the defendant taken
at the time of his arrest depicts no scar and indicates
that he is not dark-skinned.
With respect to fingerprints on the window in the
brother’s room, counsel for the defendant argued that
the victim saw the perpetrator go back to her brother’s
room, and her mother discovered the window wide
open. ‘‘It seems logical given the bulkhead or Bilco door
that that’s the window that the perpetrator went into.
It’s also logical that if you’re pushing the window up,
you might leave some prints there. . . . Could you
imagine if his prints were found on that window, what
we’d be looking at? . . . But those prints, he’s
excluded from leaving those prints; they’re not his.’’
‘‘The state wants you to believe that maybe the kids
were out there playing. They’re not kids’ prints. You
heard the experts testify about that. A hundred years?
The windows were there forever? I mean, come on,
let’s be serious.’’ (Emphasis added.) He stated that the
lack of evidence in terms of fingerprints was important.
Defense counsel also asked what corroborated the
DNA evidence in the case and answered his own ques-
tion, ‘‘[n]othing.’’ He argued that there was no evidence
that the sperm slide or the victim’s panties or her sheets
were tested, as those items were not sent to the labora-
tory. He urged the jury to listen to the judge’s instruc-
tions that it was not the defendant’s burden to put on
evidence. Nonetheless, the defendant had called the
detectives in the case to testify. The state called only
the victim, her mother, the forensic interviewer, the
nurse and doctor, and the laboratory scientists to
testify.
Defense counsel further addressed the DNA evi-
dence, arguing why it was problematic. In the profile
developed from one swab source, the defendant was
eliminated as a contributor, but he was a contributor
in a profile from another source. Defense counsel noted
the inconsistent number of swabs. ‘‘So, the one [source]
that has the most seminal fluid, the one that results in
the smear with the sperm, he’s eliminated from. That’s
problematic. This is not a reliable result. If a result
is unreliable, then statistics mean nothing.’’ Defense
counsel also talked about mistakes the police made in
recording and storing the fingerprints, and argued that
Gallagher’s testimony about the number of swabs in a
rape kit was not consistent with the number of swabs
sent to the laboratory. He concluded that the lack of
evidence did not permit the jury to accept the reliability
of the DNA evidence. He urged the jury not to decide
the case on ‘‘blind faith . . . .’’
On rebuttal, the prosecutor argued that the state was
not asking the jury to decide the case on blind faith,
but on science. She pointed out that the defendant did
not leave his fingerprints on the window, but that he
left ‘‘evidence from another part of his body,’’ which
‘‘resulted in a DNA profile that only one in 52 million
people in the African-American community have.’’
With respect to fingerprints, she stated that they ‘‘tell
you nothing.’’ There were fingerprints on the window,
but ‘‘[w]e don’t know where the prints came from or
how long they’ve been there or if they’ve been there
for a hundred years. The prints tell us nothing and show
you nothing and prove nothing.’’
The prosecutor restated the victim’s testimony
regarding the incident on October 15, 2014. She
reviewed the victim’s description of the perpetrator and
displayed photographs of the defendant that were in
evidence. She also reviewed the testimony of the vic-
tim’s mother. She recounted the testimony of Gallagher
and Gunjan Tiyyagura, an emergency department physi-
cian who described shining a BlueMax light on the
victim’s vagina that revealed the presence of semen.
She recounted in summary the testimony regarding the
forensic interview of the victim, and gave a more
detailed recitation of the testimony of the laboratory
scientists regarding the swabs and the DNA profiles
produced from them. She mentioned that Renstrom
developed known DNA profiles of both the victim and
the defendant, and compared them with the profile
obtained from the swab of the victim’s vagina. The DNA
of both the victim and the defendant were present in
that profile. She stated that Renstrom ‘‘attached a statis-
tic to the [number] of times you would see that profile
in a number of people. He told you that you would see
the DNA profile of the defendant once in 52 million
people in the African-American community. Think
about that, ladies and gentlemen. You hear evidence
that the whole state of Connecticut is 3.5 million people.
If we filled the entire state of Connecticut with 3.5
million African-Americans, 52 million African-Ameri-
cans would be the population of Connecticut times
fourteen. So, if we placed 3.5 million African-Americans
in Connecticut and stacked thirteen more states the
size of Connecticut on top of that full of African-Ameri-
cans, we would still only see that profile one time. That,
ladies and gentlemen, is proof beyond a reasonable
doubt.’’
We now address the defendant’s claims of prosecu-
torial impropriety.
A
The defendant’s first claim of prosecutorial miscon-
duct is that the prosecutor violated his constitutional
right to be heard by counsel during oral argument by
reserving the substantive discussion of the evidence for
her rebuttal. He argues that, without knowing how the
state intended to marshal the evidence, his counsel
could not effectively rebut the state’s argument and,
therefore, he lost his ‘‘last clear chance to persuade the
[jury] that there may be reasonable doubt of [his] guilt,’’
quoting Herring v. New York, 422 U.S. 853, 862, 95 S.
Ct. 2550, 45 L. Ed. 2d 593 (1975). He also claims that
the prosecutor raised new arguments during her rebut-
tal.12 We disagree.
‘‘Under the sixth and fourteenth amendments to the
United States constitution, a criminal defendant has
a constitutionally protected right to make a closing
argument. That right is violated not only when a defen-
dant is completely denied an opportunity to argue
before the court or the jury after all the evidence has
been admitted, but also when a defendant is deprived
of the opportunity to raise a significant issue that is
reasonably inferable from the facts in evidence.’’ (Inter-
nal quotation marks omitted.) State v. Mungroo, 104
Conn. App. 668, 675–76, 935 A.2d 229 (2007), cert.
denied, 285 Conn. 908, 942 A.2d 415 (2008).
‘‘In general, the scope of final argument lies within
the sound discretion of the court . . . subject to appro-
priate constitutional limitations.’’ (Citation omitted;
internal quotation marks omitted.) State v. Arline, 223
Conn. 52, 59, 612 A.2d 755 (1992). The present case,
however, is not one in which the defendant claims that
the court improperly limited his right to argue to the
jury. He instead takes issue with the prosecutor’s strat-
egy, claiming that because the prosecutor made her
substantive argument during rebuttal, defense counsel
could not counter the substance of the prosecutor’s
argument. Our review of the record discloses that the
evidence was known to the defendant and his counsel,
and that defense counsel vigorously argued the weak-
nesses in the state’s case to the jury.
The defendant relies heavily on the legal underpin-
nings of Herring v. New York, supra, 422 U.S. 853, to
argue that the form of the prosecutor’s argument limited
his right to counsel under the sixth amendment to the
federal constitution. The facts of Herring are inappo-
site. At the time of Herring, a New York statute con-
ferred upon judges in nonjury criminal trials the power
to deny counsel an opportunity to argue the evidence
before the judge rendered a judgment. Id., 853–54. The
case called upon the Supreme Court to assess the con-
stitutional validity of the New York law. Id., 854. During
trial, at the conclusion of evidence, defense counsel
had asked ‘‘to ‘be heard somewhat on the facts.’ The
trial judge replied: ‘Under the new statute, summation
is discretionary, and I choose not to hear summations.’ ’’
Id., 856. The United States Supreme Court reversed the
defendant’s conviction, stating in part, that ‘‘closing
argument for the defense is a basic element of the
adversary factfinding process in a criminal trial. . . .
[C]ounsel for the defense has a right to make a closing
summation to the jury, no matter how strong the case
for the prosecution may appear to the presiding judge.’’
Id., 858. ‘‘[T]he overwhelming weight of authority, in
both federal and state courts, holds that a total denial of
the opportunity for final argument in a nonjury criminal
trial is a denial of the basic right of the accused to make
his defense.’’ Id., 859.
Herring does not resemble the present case—or any-
thing close to it.13 First, the present case was tried before
a jury. Second, the court did not deny defense counsel
the opportunity to make a final argument to the jury.
Third, defense counsel argued to the jury. Our review
of the argument made by defense counsel discloses that
he reminded the jury that it was its recollection of the
facts that mattered and that he had only one opportunity
to address the jury, although the prosecutor had two
such opportunities. He ably pointed out the weaknesses
in the state’s case: the victim and her mother were
unable to identify the perpetrator in court or from pho-
tographs, the victim’s description of the perpetrator
was not consistent with his appearance, there was no
fingerprint evidence from the window where the perpe-
trator supposedly entered the dwelling, the DNA evi-
dence was uncorroborated, and the nurse used two
swabs to collect DNA from the victim but there were
three swabs in the rape kit in the laboratory, among
other things. Significantly, defense counsel argued that
the DNA evidence was unreliable and that the state
should not be entitled to rely on it.
Contrary to the defendant’s argument, defense coun-
sel was able to address the evidentiary issues in the
case that formed the basis of both portions of the prose-
cutor’s final argument. Defense counsel’s argument
with regard to the evidence directly attacked statements
the prosecutor made during her summation, to wit:
‘‘[Y]ou’re going to hear a lot of things about fingerprints
and mistakes by the lab or police with those finger-
prints. You’re also going to hear that there’s no identifi-
cation of the defendant by photograph. . . . [W]hile
you are listening to their argument, there are three
letters you will not be able to forget. There are three
letters you will not be able to get out of your head.
Those letters are DNA.’’ The arguments of both the
prosecutor and defense counsel demonstrate that each
of them was well aware of the evidence in the case and
the opposing party’s theory of the case.
This court previously has stated that ‘‘[t]here is noth-
ing to suggest that a closing argument must be made
in a particular order or that the state’s initial argument
should contain the majority of its argument. Closing
arguments must be fair and based on evidence. . . .
We . . . must permit the state wide latitude in its deci-
sion to make the substantive portion of its closing argu-
ment during final closing argument . . . .’’ State v.
Rupar, 86 Conn. App. 641, 656–57, 862 A.2d 352 (2004),
cert. denied, 273 Conn. 919, 871 A.2d 1030 (2005); accord
State v. Schiavo, 93 Conn. App. 290, 303 n.10, 888 A.2d
1115, cert. denied, 277 Conn. 923, 895 A.2d 797 (2006).
As in Rupar, the defendant in the present case has not
identified any controlling authority—be it a statute, a
rule of practice, or case law—regarding the use of time
in closing argument.14 We, therefore, conclude that the
format of the prosecutor’s closing argument was not
improper and did not deny the defendant his constitu-
tional right to be heard by counsel during closing
argument.
B
The defendant’s second claim is that the prosecutor
was guilty of impropriety when, during rebuttal argu-
ment, she raised new issues and mischaracterized the
evidence that, according to the defendant, infringed on
his right to closing argument and deprived him of a fair
trial.15 On the basis of our review of the record, including
the prosecutor’s rebuttal argument, we conclude that
there was no impropriety.16 We now address each of
the defendant’s arguments.
1
The defendant claims that the prosecutor mischarac-
terized Renstrom’s testimony regarding the expected
frequency of individuals who could be a contributor to
the mixture in the DNA sample identified as 1 C-B.
We disagree.
During her rebuttal argument, the prosecutor stated
in relevant part: ‘‘[I]f we placed 3.5 million African-
Americans in Connecticut and stacked thirteen more
states the size of Connecticut on top of that full of
African-Americans, we would still only see that profile
one time. That, ladies and gentlemen, is proof beyond a
reasonable doubt.’’ The defendant notes that Renstrom
testified that the population of Connecticut is approxi-
mately 3.5 million and that ‘‘the expected frequency of
individuals who could be a contributor to the mixture in
1 C-B is approximately one in 52 million in the African-
American population, approximately one in 66 million
in the Caucasian population, and approximately one in
37 million in the Hispanic population.’’
The defendant claims that the prosecutor’s argument
implicates two errors in probabilistic reasoning. By tell-
ing the jury that only one person in Connecticut would
be included as a contributor, the prosecutor urged the
jury to commit the ‘‘ ‘uniqueness fallacy,’ ’’17 stating that
‘‘it is a fallacy to infer uniqueness from profile frequen-
cies simply because they are smaller than the number
of available objects.’’18 The second error, the defendant
argues, is ‘‘the probability of another match error, which
conflates the chance that a single, randomly selected
person could be included as a contributor with the
chance that at least one other member of the population
could be included.’’19 The defendant contends that the
prosecutor’s incorrect reasoning was harmful because
even a relatively low percentage chance that someone
else could be included as a contributor may have been
enough to convince the jury that there was a reasonable
doubt as to the defendant’s guilt.
We need not determine whether the defendant’s sta-
tistical argument is correct. He presented no evidence
to support the claim he now raises on appeal, and the
record is inadequate to address it. Our review of the
record discloses that the prosecutor’s argument was
predicated on the evidence. On redirect examination,
the prosecutor questioned Renstrom about the fre-
quency of the defendant’s DNA profile occurring in the
African-American population in Connecticut:
‘‘[The Prosecutor]: How many people are in the state
of Connecticut?
‘‘[The Witness]: I’m not sure of the exact population. I
believe it’s in the three to three and a half million people.
‘‘[The Prosecutor]: Three, three and a half million.
This statistic was what . . . you found the amount—
the number of times you would expect to find this
profile of—that was generated from the defendant’s
known? How many times would you expect to see that
profile within—what was the statistic you put out? . . .
‘‘[The Witness]: It was in the tens of millions. . . .
‘‘[The Prosecutor]: So, demonstrate the item 1C-B is
a mixture, and the defendant is included in one statistic
that you put to this, that you would find the defendant’s
profile in that number?
‘‘[The Witness]: So, what the statistic is referring to
is, if I were to take general population, type those peo-
ple, and then compare it to the knowns, 1C-B—or the
unknown 1C-B sample, and the expected frequency of
individuals who could be a contributor to that sample,
1C-B, is one in 52 million in the African-American popu-
lation, one in 66 million in the Caucasian population,
and one in 37 million in the Hispanic population.’’
DNA evidence is inherently complex, and the statisti-
cal conclusions to be drawn from it are equally complex.
But neither the state nor the defendant presented expert
testimony to help the jury understand the significance
of Renstrom’s statistics. ‘‘The purpose of expert testi-
mony is to aid the trier of fact in arriving at its own
conclusion.’’ Breen v. Breen, 18 Conn. App. 166, 174,
557 A.2d 140, cert. denied, 212 Conn. 801, 560 A.2d 984
(1989). ‘‘The purpose of expert testimony is to draw
inferences from the facts which the fact finder could
not draw at all or as reliably.’’ Marandino v. Prometheus
Pharmacy, 105 Conn. App. 669, 692, 939 A.2d 591 (2008),
rev’d in part on other grounds, 294 Conn. 564, 986 A.2d
1023 (2010).
As previously noted, the defendant failed to object
to the prosecutor’s DNA argument. As our Supreme
Court has stated, this is not fatal to a prosecutorial
impropriety claim. See State v. Stevenson, 269 Conn.
563, 572–73, 849 A.2d 626 (2004). ‘‘This does not mean,
however, that the absence of an objection at trial does
not play a significant role in the determination of
whether the challenged statements were, in fact,
improper. . . . To the contrary, we continue to adhere
to the well established maxim that defense counsel’s
failure to object to the prosecutor’s argument when it
was made suggests that defense counsel did not believe
that it was [improper] in light of the record of the case
at the time. . . . This is particularly true if, as in the
present case, a defendant claims prosecutorial impro-
priety stemming from a prosecutor’s discussion of DNA
evidence. Such discussions require precise and nuanced
distinctions in nomenclature that easily may be miscon-
veyed or misunderstood, especially in light of the zeal-
ous advocacy that is part and parcel of a closing
argument. If a prosecutor’s arguments do not portray
accurately the DNA evidence as it was presented to the
jury or stray too far from reasonable inferences that
may be drawn from such evidence, a contemporaneous
objection by defense counsel would permit any mis-
statements, whether inadvertent or intentional, to be
remedied immediately.’’ (Citation omitted; internal quo-
tation marks omitted.) State v. Brett B., supra, 186 Conn.
App. 572.
The state contends that the prosecutor’s argument
was predicated on a reasonable inference to be drawn
from the evidence and unmistakably was in reference
to Renstrom’s testimony. We agree. ‘‘We long have held
that a prosecutor may not comment on evidence that
is not a part of the record and may not comment unfairly
on the evidence in the record. . . . It is not, however,
improper for the prosecutor to comment upon the evi-
dence presented at trial and to argue the inferences
that the jurors might draw therefrom . . . . We pre-
viously have held that, if the evidence presented at trial
is that the defendant is included as a contributor to a
DNA profile, then it is not necessarily improper for a
prosecutor to argue to a jury during closing argument
that the DNA found was the defendant’s as long as that
is a reasonable inference to be drawn in light of the
evidence as a whole.’’ (Citations omitted; emphasis
omitted; internal quotation marks omitted.) Id., 583.
To the extent that the prosecutor may have used
an imprecise example or exaggerated,20 the defendant
failed to object or to correct the claimed misstatement,
which suggests ‘‘that he did not believe at the time
that the remarks warranted such intervention. When
considered within the context of the state’s entire argu-
ment and allowing some leeway for zealous advocacy,
as we must, we cannot conclude that the prosecutor
made any statements that reasonably can be viewed as
improper under the circumstances or that the jury likely
was misled . . . .’’ Id., 585–86. As a practical matter,
some degree of imprecision can be expected when a
layperson discusses, or evaluates, scientific or statisti-
cal evidence without the benefit of expert testimony.
Opposing counsel, however, must be alert and raise an
objection at the time when a purported error may be
corrected. See id., 572.
We conclude, therefore, that the prosecutor’s rebuttal
argument was not improper and that the defendant
failed to demonstrate that he was denied a fair trial on
the basis of the prosecutor’s argument with respect to
the DNA evidence.
2
The defendant also claims that the prosecutor mis-
characterized the fingerprint evidence. We do not agree.
During the trial, the state presented testimony from
John Cerejo, a detective with the Meriden Police
Department, and Steve Burstein, a detective sergeant
with the department, regarding the efforts the police
made to get fingerprints from the window in the bed-
room of the victim’s brother. Many of the fingerprints
were not sufficiently clear to be used for identification
purposes, and none of them matched the defendant’s
fingerprints. According to Cerejo, the length of time a
fingerprint stays on a surface depends on, among other
things, whether it is exposed to sun and rain. He testified
inconsistently as to how long the fingerprints on the
window could have been there. According to Burstein,
the window was exposed to the elements, and he did not
know how long the fingerprints were on the window.
He also testified that he did not know when the house
had been built, but estimated, without objection, that
it ‘‘probably [was] a hundred years ago or so . . . .’’
During her rebuttal, the prosecutor downplayed the
importance of fingerprints on the window, arguing, in
part, ‘‘[w]e don’t know where the prints came from or
how long they’ve been there or if they’ve been there
for a hundred years.’’ The defendant claims that the
argument was improper because there was no evidence
that the fingerprints could have been on the window
for anywhere close to one hundred years. We do not
find the prosecutor’s argument to have been improper.
The obvious point of the prosecutor’s argument was
that there was no evidence as to whose fingerprints
were on the window or when they happened to be
put there. With a hyperbolic flourish, the prosecutor
incorporated the testimony that the house was esti-
mated to be one hundred years old to emphasize that no
one knew when or who put fingerprints on the window.
Surely, the jury understood the prosecutor’s remark as
an overstatement. Moreover, counsel for the defendant
stated in his closing argument: ‘‘They’re not kids’ prints.
You heard the experts testify about that. A hundred
years? The windows were there forever? I mean, come
on, let’s be serious.’’
Whether the prosecutor’s one hundred years remark
was hyperbole or made in response to the argument of
defense counsel, the arguments of both counsel had a
basis in the evidence. Most importantly, there was no
fingerprint evidence that connected the defendant to
the crimes and, therefore, he could not have been preju-
diced by the argument. The defendant’s claim of prose-
cutorial impropriety during oral argument therefore
fails.
C
The defendant also claims that he is entitled to a
new trial because the prosecutor’s allegedly improper
rebuttal argument deprived him of the right to closing
argument. We do not agree.
The defendant’s claim is made through the lens of
hindsight and is not supported by the record. The defen-
dant expounds on his claim that he did not have a
chance to rebut the state’s view of the evidence, and
that his theory of defense was to challenge the persua-
siveness and reliability of the DNA evidence. He
asserted that he was denied the right to final argument
especially with respect to the prosecutor’s rebuttal
argument that he was the only person in Connecticut
who could be a contributor to the DNA mixture and
that defense counsel was not given an opportunity to
correct the argument. The defendant claims that this
was extraordinarily harmful because juries, lawyers,
and judges have a difficult time interpreting probabilis-
tic information. This claim was not raised at trial and,
therefore, is not preserved. Moreover, the defendant
claims that he did not have the chance to counter the
prosecutor’s argument in the context of his own theory
that there were serious questions about the collection,
preservation, and testing of the physical evidence that
called Renstrom’s testimony into question.
The defendant’s contention that he is entitled to a
new trial on the basis of the prosecutor’s rebuttal argu-
ment is flawed for at least two reasons. If, as he argues
on appeal, the prosecutor’s argument that he was the
only person in Connecticut who could have contributed
to the DNA mixture is wrong, defense counsel could
have objected to the argument at trial, but did not.
Counsel, therefore, must not have thought that it misled
the jury. Given the complexity of DNA evidence, an
objection must be raised at the time evidence is pre-
sented when it can be corrected. State v. Brett B., supra,
186 Conn. App. 572.
As to his second contention that defense counsel
could not counter the prosecutor’s DNA argument, we
note that at the conclusion of the first portion of her
summation, the prosecutor, in so many words, told the
jury that DNA was the key to the case. During his final
argument, defense counsel made clear to the jury all
of the problems in the collection, preservation, and
testing of the DNA evidence. The defendant, therefore,
was not deprived of his right to final argument and to
present his view of the DNA evidence. In fact, defense
counsel anticipated and attempted to refute the prose-
cutor’s rebuttal.
For the foregoing reasons, the defendant’s claim of
prosecutorial impropriety during final argument fails.
III
The defendant’s final claim is that he is entitled to a
new trial on the charge of home invasion because the
second portion of the prosecutor’s final argument mis-
led the jury on the elements of the crime of home
invasion, and that the misstatement was not harmless
beyond a reasonable doubt. We disagree.
The defendant’s claim is predicated on his representa-
tion, in his appellate brief, of a portion of the prosecu-
tor’s closing argument, to wit: ‘‘During closing
argument, after quoting the substitute information, the
state’s attorney told the jury that ‘basically, [the infor-
mation] means that the defendant had to unlawfully
enter the dwelling while a person was inside with the
intent to commit a sexual assault . . . .’ ’’ (Emphasis
in original.) He argues that the language misrepresented
the law to the jury because it invited the jury to find
him guilty even if it did not find beyond a reasonable
doubt that he intended to commit a sexual assault by
force at the time of entry. The defendant correctly states
that prosecutors are not permitted to misstate the law
because it invites a conviction unwarranted by the law
and facts.21 See State v. Otto, supra, 305 Conn. 77. ‘‘A
review of the statements made by the prosecutor, in
the context of the entire closing argument, is necessary
to address the defendant’s challenges.’’ Id.
Our review of the prosecutor’s entire summation dis-
closes the context of the prosecutor’s argument to
which the defendant takes exception. After thanking
the jury for its service, the prosecutor stated that she
intended to highlight some of the evidence, but that if
the jury had a different recollection of the evidence, its
recollection was what counted. She also stated that she
would highlight some points of law, but that the trial
judge would give the jury instructions on the law and
that ‘‘his word goes . . . .’’ (Emphasis added.)
The prosecutor then summarized the victim’s testi-
mony and stated that on the basis of ‘‘the horrific facts’’
the victim described, the state charged the defendant
with five crimes. The prosecutor stated: ‘‘The judge will
give you the exact definition of these crimes at much
more length than I will, and you will actually get the
copy of his instructions to take with you in the jury
room, but I’d like to summarize them briefly for you.’’
The prosecutor then read the first count of the long
form information to the jury. Immediately thereafter,
the prosecutor stated: ‘‘That statute is very wordy, but
basically, it means that the defendant had to unlawfully
enter the dwelling while a person was inside with the
intent to commit a sexual assault and commit a felony
while inside against another person; and again, this
will be described further, but that’s the first count of
the information.’’
When the court instructed the jury, it stated in part:
‘‘You as the jury and I as the judge have separate func-
tions. It’s your function to find what the facts are in
this case. With respect to the facts, you and you alone
are charged with that responsibility. My function is to
charge you on the law to be applied to the facts that
you find in order to decide this case. With respect to
the law, what I say to you is binding on you, and you
must follow all of my instructions.’’
With respect to the first count of the information,
which alleged home invasion, the court instructed the
jury that it would have the information in the jury room
along with a copy of its charge. The court read the
charge of home invasion to the jury and § 53a-100aa
(a) (1). It then stated: ‘‘So, for you to find the defendant
guilty of this charge, the state must prove each of the
following elements beyond a reasonable doubt: (1) that
the defendant knowingly and unlawfully entered a
dwelling, (2) that the defendant intended to commit the
crime of sexual assault in the first degree in violation
of § 53a-70 (a) (1) in that dwelling, (3) that when the
defendant entered the dwelling, a person other than a
participant in the crime, namely [the victim], was actu-
ally present in the dwelling, and (4) that in the course
of committing the home invasion, the defendant com-
mitted a felony against the person of another person
other than a participant in the crime who was actually
present in the dwelling.’’
The court elaborated on all of the elements of the
crime of home invasion: ‘‘The second element that the
state must prove beyond a reasonable doubt is that
the defendant intended to commit the crime of sexual
assault in the first degree in violation of § 53a-70 (a)
(1) in the dwelling. Our statutes provide that a person
acts intentionally with respect to a result when his
conscious objective is to cause such result. What a
person’s intent has been is very largely a matter of
inference. No witness can be expected to come here
and testify that he looked into another person’s mind
and saw therein a certain intention. A jury may deter-
mine what a person’s intention was at any given time
by determining what that person’s conduct was and
what the circumstances were surrounding that conduct,
and from those things infer what his intention was. An
intent may be inferred from circumstantial evidence,
provided the inference is a reasonable one and war-
ranted by facts that you find proven. To draw such an
inference is not only the privilege but also the proper
function of a jury, provided of course, that the inference
drawn complies with the standards for inference set
forth in my instruction on circumstantial evidence.’’
The trial court also instructed the jury on the ele-
ments of sexual assault in the first degree by the use
of force, to wit: ‘‘The necessary intent to commit a
crime must be an intent to commit either a felony or
a misdemeanor in addition to the unlawful entering of
the dwelling. In this case, the state claims that the
defendant committed the crime of sexual assault in the
first degree in violation of § 53a-70 (a) (1) . . . . That
section provides . . . [a] person is guilty of sexual
assault in the first degree when such person compels
another person to engage in sexual intercourse by the
use of force against such other person. For a person
to intend to commit the crime of sexual assault in the
first degree in violation of § 53a-70 (a) (1) . . . he must
intend to (1) compel another person to engage in sexual
intercourse, and (2) to accomplish the sexual inter-
course by the use of force against the other person.
With respect to this element, the state must first prove
beyond a reasonable doubt that when the defendant
entered the dwelling in question, he intended to compel
another person to engage in sexual intercourse. Sexual
intercourse means vaginal intercourse or cunnilingus
between persons regardless of sex. . . . The state must
additionally prove beyond a reasonable doubt that when
the defendant entered the dwelling, he intended to
accomplish the sexual intercourse by the use of force
against . . . the other person.’’
The defendant does not claim that the court’s instruc-
tions were improper. ‘‘Barring contrary evidence . . .
we must presume that juries follow the instructions
given them by the trial judge.’’ (Internal quotation marks
omitted.) State v. Morton, 59 Conn. App. 529, 537, 757
A.2d 667 (2000). The defendant has not provided any
evidence that the jury did not follow the instructions
of the court.
The record discloses that the prosecutor read the
charge of home invasion as stated in the information,
and then indicated that the statute was wordy and gave
a shorthand description of the crime, i.e., that the defen-
dant unlawfully entered the dwelling with the intent to
commit a sexual assault and commit a felony against
another person. The prosecutor did not so much mis-
state the law as give an incomplete description of the
charge against the defendant. The prosecutor, however,
more than once told the jurors that the court would
instruct them on the law and that the court’s instruc-
tions were what counted. The defendant has not
claimed that the court improperly charged the jury. We
presume, in the absence of evidence to the contrary,
that the jury followed the court’s instructions. State v.
Webster, 308 Conn. 43, 58–59 n.11, 60 A.3d 259 (2013).
The defendant’s claim, therefore, fails.
On the basis of our review of the record and for the
reasons previously stated, we conclude that there was
sufficient evidence by which the jury reasonably could
have found the defendant guilty beyond a reasonable
doubt of the crimes with which he was charged. More-
over, we conclude that the prosecutor committed no
impropriety during her final argument and, therefore,
the defendant was not denied his constitutional right
to final argument, a fair trial, or due process.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant was formerly known as Desmond James.
2
In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
3
The victim’s mother has five daughters, a son, and five stepchildren.
4
During his cross-examination of the investigating police officers, the
defendant elicited evidence that demonstrated errors in the fingerprint inves-
tigation and record keeping. See part II B 2 of this opinion.
5
Renstrom explained that in dividing the DNA, the epithelial and sperm-
rich fractions cannot be separated completely.
6
In his motion for a judgment of acquittal, the defendant stated that to
convict him of home invasion the state had to establish beyond a reasonable
doubt that when he entered the victim’s home, he did so with the intent to
compel another person to engage in sexual intercourse by the use of force
or by the threat of use of force, which reasonably caused such person to
fear physical injury. The defendant contended that there was no evidence
to suggest or from which to infer that the perpetrator knew who lived in
the home before he entered. Moreover, there is no evidence to suggest how
long the perpetrator was in the victim’s home or what he did in the home
prior to awakening the victim. The defendant argued that the only evidence
from which the jury possibly could infer the perpetrator’s intent when he
entered the home was the fact that he ultimately committed a sexual assault.
7
In his motion for a new trial, the defendant asserted that the prosecutor’s
argument was improper because it was unsupported by evidence and
amounted to unsworn testimony. The defendant claimed that the prosecutor
mischaracterized the testimony of Gunjan Tiyyagura, an emergency depart-
ment physician, regarding the cause of a tear to the victim’s fourchette, and
made an assertion about the DNA evidence for which there was no evidence.
He also claimed that the court erred in failing to give the jury instruction
on proof beyond a reasonable doubt that he had requested.
8
General Statutes § 53a-70 (a) provides in relevant part: ‘‘A person is
guilty of sexual assault in the first degree when such person (1) compels
another person to engage in sexual intercourse by the use of force against
such other person . . . .’’
The state also charged the defendant in three separate counts with sexual
assault in the first degree in violation of § 53a-70 (a) (2), which provides in
relevant part: ‘‘A person is guilty of sexual assault in the first degree when
such person . . . (2) engages in sexual intercourse with another person
and such other person is under thirteen years of age and the actor is more
than two years older than such person . . . .’’
9
General Statutes § 53a-100aa (a) provides in relevant part: ‘‘A person is
guilty of home invasion when such person enters . . . a dwelling, while a
person other than a participant in the crime is actually present in such
dwelling, with intent to commit a crime therein, and, in the course of commit-
ting the offense: (1) Acting either alone or with one or more persons, such
person or another participant in the crime commits or attempts to commit
a felony against the person of another person other than a participant in
the crime who is actually present in such dwelling . . . .’’
10
The defendant does not claim that the prosecutor’s final argument raised
any nonconstitutional issues such as a violation of the rules of practice; see
Practice Book § 42-37; or a statutory right that he may have regarding final
argument. See General Statutes § 54-88.
11
Following the conclusion of the prosecutor’s rebuttal argument, defense
counsel objected to three statements the prosecutor made regarding the
facts. The court overruled the objections, stating that the issues were for
the jury to decide. On appeal, the defendant has not claimed that the court’s
rulings constituted an abuse of discretion.
12
The defendant claims that he was not able to respond to the prosecutor’s
rebuttal argument regarding Renstrom’s testimony about the probability of
inclusion, the defendant’s exclusion from the sperm-rich portion of the
profile sample identified as 1 C-3, the fingerprint evidence, the victim’s
description of the perpetrator, and saliva found on the three swabs. We
disagree that defense counsel was unable to respond to the issues cited. At
the close of the first portion of her argument, the prosecutor stated that
‘‘[t]here are three letters you will not be able to get out of your head. Those
letters are DNA.’’ This argument put the defendant on notice of the state’s
theory of the case. During his closing argument, defense counsel pointed
out errors concerning the DNA evidence and its testing, and how the police
and the laboratory handled the fingerprints taken from the window in the
bedroom of the victim’s brother. Defense counsel also emphasized the incon-
sistencies between the victim’s description of the defendant and the defen-
dant’s appearance. See part II of this opinion.
13
The defendant also relies on State v. Arline, supra, 223 Conn. 52, and
State v. Hoyt, 47 Conn. 518 (1880), for the proposition that an accused is
entitled to argue to the trier of fact at the conclusion of the evidence. That
constitutional right is not in dispute in the present case. The issue in the
cited cases concerned the trial court’s imposition of restrictions on counsel’s
argument, which is not the issue in the present instance.
In Arline, our Supreme Court reversed the judgment of conviction because
the trial court restricted defense counsel’s right to argue certain facts in
evidence regarding the complainant’s credibility. State v. Arline, supra, 223
Conn. 55-65. In Hoyt, the issue before the court was whether the trial court
had the discretion to limit the amount of time for argument. State v. Hoyt,
supra, 47 Conn. 534–36. Neither case concerns the manner in which the
state apportions its final argument.
14
In his appellate brief, the defendant has cited cases from federal and
state courts reversing criminal convictions in which the prosecutor gave a
perfunctory opening summation and presented the bulk of the argument on
rebuttal. As an intermediate court of appeal, we are bound to follow the
law established by our legislature and our Supreme Court. ‘‘[W]e are unable
to overrule, reevaluate, or reexamine controlling precedent . . . .’’ State v.
LaFleur, 156 Conn. App. 289, 302, 113 A.3d 472, cert. denied, 317 Conn. 906,
114 A.3d 1221 (2015). We, therefore, follow Connecticut precedent.
15
The defendant objected at trial to what he claims was the prosecutor’s
mischaracterization of the fingerprint testimony and thus preserved the
claim for appellate review. He did not object to what he claims are new
issues raised by the prosecutor in rebuttal. He, therefore, seeks appellate
review pursuant to State v. Golding, supra, 213 Conn. 239–40. Although the
claim is reviewable, a constitutional violation did not exist, and the defendant
was not deprived of a fair trial. See parts II and II B 2 of this opinion.
16
Because we conclude that there was no prosecutorial impropriety, we
need not address the factors set forth in State v. Williams, 204 Conn. 523,
540, 529 A.2d 653 (1987), to determine whether the defendant was denied
due process.
17
According to the defendant, the reasoning of the uniqueness fallacy is
that ‘‘(1) there is a 1 in 52 million chance that a person could be included
as a contributor to the mixture; (2) the defendant’s profile was included as
a contributor; (3) the population of Connecticut is about 3.5 million; therefore
(4) the defendant is the only person whose profile would be included as a
contributor to the mixture.’’
18
In his appellate brief, the defendant cited M. Saks & J. Koehler, ‘‘The
Individualization Fallacy in Forensic Science Evidence,’’ 61 Vand. L. Rev.
199, 204 (2008).
19
In his appellate brief, the defendant cited J. Koehler, ‘‘Error and Exagger-
ation in the Presentation of DNA Evidence,’’ 34 Jurimetrics J. 21, 33 (1993).
20
The defendant posits that many lawyers and judges have a difficult time
interpreting probabilistic information. See J. Koehler, ‘‘Forensic Fallacies
and a Famous Judge,’’ 54 Jurimetrics J. 211, 212–17 (2014) (discussing three
cases in which then Judge Richard A. Posner of the United States Court of
Appeals for the Seventh Circuit committed basic errors in probabilistic
reasoning, including DNA evidence).
21
The defendant also argues that all of the Williams factors except the
frequency of the impropriety weigh in favor of reversal. See footnote 16 of
this opinion; State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). He
contends that reversal is warranted because the state’s case was relatively
weak and the court gave no curative instruction. Because we conclude that
the prosecutor committed no impropriety in her final argument, we need
not address the Williams factors. Again, we note that trial counsel did not
object to the portion of the prosecutor’s argument at issue in this claim and
requested no curative instruction.