***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE OF CONNECTICUT v. KENNETH
M. WEATHERSPOON
(SC 20134)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.
Syllabus
A prosecutor makes a tailoring argument when he or she attacks the credibil-
ity of a testifying defendant by asking the jury to infer that the defendant
has fabricated his testimony to conform to the testimony of previous
witnesses. A tailoring argument is generic when the prosecutor asks
the jury to make the inference solely on the basis of the defendant’s
presence at trial and his opportunity to fabricate his testimony, whereas
a tailoring argument is specific when the prosecutor refers to evidence
from which the jury reasonably might infer that the defendant fabricated
his testimony to conform to the state’s case as presented at the defen-
dant’s trial.
Convicted, following a jury trial, of sexual assault in a cohabiting relationship
and assault in the third degree, the defendant appealed from the judg-
ment of conviction, claiming that his right to confrontation under article
first, § 8, of the Connecticut constitution was violated when the prosecu-
tor made a generic tailoring argument during his closing argument to
the jury, and that certain improper remarks by the prosecutor during
cross-examination and closing argument violated his due process right
to a fair trial. The defendant’s conviction arose out of his alleged attack
of the victim, with whom he lived and was in a romantic relationship.
The day after the incident, a police officer, C, questioned the defendant
about the incident. At the defendant’s trial, C testified that the defendant
told him that he had been drinking on the day in question and that he
did not remember anything that had occurred. C further testified that
he asked the defendant if he had consumed enough alcohol to black
out, to which the defendant replied in the negative. The victim also
testified at trial as to the circumstances surrounding the incident and
her belief that the defendant had been drinking heavily before it
occurred. The defendant’s testimony at the trial conflicted in certain
respects with the testimony of C and the victim, both of whom had
testified before him. Specifically, the defendant denied telling C that he
did not remember what had happened on the day of the incident but,
instead, maintained that he remembered what had occurred but had
declined to give C a statement due to his apprehension that it would be
misconstrued or manipulated by the police. Additionally, the defendant
agreed with the prosecutor when the prosecutor asked the defendant,
without any objection, if C was wrong when he testified that the defen-
dant had told him that he could not remember the incident. During
closing argument, the prosecutor referred to C’s testimony that the
defendant had no memory of the incident and remarked that the defen-
dant would have the jury believe that C lied about what the defendant
had told C regarding his memory of the incident. The prosecutor further
urged the jury to assess the credibility of the defendant against that of
C and the victim, and argued that the defendant’s testimony ‘‘was entirely
self-serving with the benefit of hearing all the testimony that came
before.’’ Defense counsel did not object to any of the prosecutor’s
remarks during closing argument. Held:
1. The defendant could not prevail on his unpreserved claim that the prosecu-
tor’s statement during closing argument that the jury should discredit
the defendant’s testimony because it had been made ‘‘with the benefit
of hearing all the testimony that came before’’ constituted impermissible
generic tailoring and, therefore, violated his right to confrontation under
article first, § 8, of the Connecticut constitution: the prosecutor’s tai-
loring argument, when viewed in the context of his other remarks during
closing argument, was specific rather than generic, in that it was based
expressly on evidence in the record that, if credited, would support a
claim of tailoring, as the challenged statement was immediately preceded
by the prosecutor’s reference to the conflicting versions of the attack
to which the defendant and the victim testified, and was immediately
followed by the prosecutor’s reference to the discrepancy between C’s
testimony that the defendant claimed to have no memory of the incident
and the defendant’s testimony that C was wrong and that he merely
had declined to give C a statement; accordingly, because the prosecutor
made a specific, rather than a generic, tailoring argument that was linked
to the evidence and not to the defendant’s mere presence at trial, this
court did not reach the defendant’s claim that the prosecutor’s generic
tailoring argument violated his right to confrontation under the state con-
stitution.
2. This court rejected the defendant’s alternative claims that, in light of the
prosecutor’s statement that the jury should discredit the defendant’s
testimony because it had been made ‘‘with the benefit of hearing all the
testimony that came before,’’ his conviction should be reversed on the
basis of prosecutorial impropriety, under the doctrine of plain error, or
in the exercise of this court’s supervisory authority: there was no merit
to the defendant’s claim that the prosecutor’s statement rose to the level
of a prosecutorial impropriety, as it was tied to evidence permitting
an inference of tailoring; moreover, the challenged statement did not
constitute plain error that required reversal of the judgment of convic-
tion, as tailoring arguments are permissible under the federal constitu-
tion; furthermore, this court declined the defendant’s request to exercise
its supervisory authority to reverse his conviction and establish a rule
prohibiting generic tailoring arguments, as the defendant failed to estab-
lish that the challenged statement constituted a generic tailoring argu-
ment or caused him to suffer any injustice.
3. The defendant could not prevail on his claim that the prosecutor deprived
him of his due process right to a fair trial when he purportedly conveyed
to the jury that it must find that C had lied in order to find the defendant
not guilty, because, even if the prosecutor’s remarks were improper,
there was no reasonable likelihood that the jury would have returned
a different verdict in the absence of those improprieties: the prosecutor’s
remarks were invited by the defendant’s assertion at trial that C misrepre-
sented what the defendant had said regarding his memory of the incident
and were an attempt to characterize the defendant’s claim as such, the
improprieties were not frequent or severe, defense counsel did not object
to the allegedly improper remarks or ask the court to take any curative
measures, the court properly instructed the jury on witness credibility
and police officer testimony both before and after the presentation of
evidence, although the strength of the state’s case was not overwhelming
and the alleged improprieties related to the critical issue of witness
credibility, the victim’s testimony regarding her version of the events
directly was corroborated by photographic, video and testimonial evi-
dence, and the fact that the jury found the defendant not guilty of the
charge of second degree strangulation demonstrated that it indepen-
dently assessed the defendant’s credibility notwithstanding the
alleged improprieties.
Argued October 19, 2018—officially released July 30, 2019
Procedural History
Substitute information charging the defendant with
the crimes of sexual assault in a cohabiting relationship,
strangulation in the second degree and assault in the
third degree, brought to the Superior Court in the judi-
cial district of New London and tried to the jury before
Jongbloed, J.; verdict and judgment of guilty of sexual
assault in a cohabiting relationship and assault in the
third degree, from which the defendant appealed.
Affirmed.
Lisa J. Steele, assigned counsel, for the appellant
(defendant).
Lawrence J. Tytla, supervisory assistant state’s attor-
ney, with whom, on the brief, was Michael L. Regan,
state’s attorney, for the appellee (state).
Opinion
ECKER, J. The defendant, Kenneth M. Weatherspoon,
was convicted after a jury trial of sexual assault in a
cohabiting relationship in violation of General Statutes
§ 53a-70b and assault in the third degree in violation of
General Statutes § 53a-61 (a) (1). The defendant testi-
fied at trial, and his claims on appeal relate to allegedly
improper attacks on his credibility made by the prosecu-
tor during cross-examination and closing argument.
First, the defendant contends that the prosecutor made
an impermissible ‘‘generic tailoring’’ argument by com-
menting in closing argument that the jury should dis-
credit the defendant’s trial testimony because, among
other reasons, it came at the end of the trial, ‘‘with the
benefit of hearing all the testimony that came before.’’1
The defendant claims that this comment violated his
confrontation rights under article first, § 8, of the Con-
necticut constitution.2 He also asks this court to hold
that the prosecutor’s tailoring comment (1) constitutes
prosecutorial impropriety depriving the defendant of
his due process right to a fair trial, (2) requires reversal
under the plain error doctrine, and/or (3) should prompt
us to exercise our supervisory authority to reverse his
judgment of conviction and prohibit generic tailoring
arguments. Second, the defendant claims that the prose-
cutor engaged in impermissible conduct in violation of
his due process right to a fair trial pursuant to State v.
Singh, 259 Conn. 693, 793 A.2d 226 (2002), by conveying
to the jury that it would need to find that the police
officer had lied in order to find the defendant not guilty.
Upon careful review of the record, we affirm the
judgment of conviction. We conclude that the prosecu-
tor’s tailoring comment constituted a specific, rather
than a generic, tailoring argument because it was sub-
stantiated by express reference to evidence from which
the jury reasonably could infer that the defendant had
tailored his testimony. We therefore decline the defen-
dant’s request to decide whether generic tailoring argu-
ments violate the state constitution. With respect to the
alleged improprieties under Singh, for the purposes of
our analysis, we assume, without deciding, that Singh
was violated, but we nonetheless conclude that the
defendant was not deprived of his due process right to
a fair trial. We therefore affirm the judgment of con-
viction.
I
We begin by setting forth the pertinent facts and
relevant procedural history. The complainant, A,3 and
the defendant met while working for the United States
Navy. They dated for a lengthy period and eventually
moved into an apartment together. At trial, A testified
that, on November 5, 2015, the two began to engage in
consensual oral sex in the living room of their apart-
ment. During the encounter, however, the defendant
became forceful and aggressive, and he ignored A’s
request that he stop. The defendant began to bite A’s
neck and buttocks despite her plea that he was hurting
her. He then told her to go into the bedroom, where
he continued to physically abuse her despite her efforts
to leave the room. The defendant pushed A down on
the bed, pulled her legs out from under her when she
got up so that she fell, and then held her against the
wall while choking her. After he let her go, she fell to
the ground, and he began to choke her again. At the
end of the altercation, the defendant told A to ‘‘[g]et the
fuck out of my sight . . . .’’ A then barricaded herself
in the bathroom, where she curled up in the fetal posi-
tion and cried. She later showered and prepared to go
to work, but, as she did so, the defendant renewed his
aggressive behavior. He began to intermittently use the
camera on his cell phone to film A while interrogating
her about their relationship. Before A was able to leave
the apartment, the defendant grabbed her by the belt
and led her into the living room, where he took off her
belt and pants. She told him to stop, but he nonetheless
proceeded to penetrate her with his penis, both anally
and vaginally.
Upon her arrival at work, A’s coworker and supervi-
sor observed marks on her neck. A disclosed to her
coworker that her boyfriend had forced her to perform
oral sex. After the same coworker overheard A talking
on the phone about the assault allegations, he reported
the information to his superiors pursuant to Navy proto-
col. A then spoke with her superior and the Navy’s
Sexual Assault Response Coordinator. She slept over-
night in her superior’s office and returned to her apart-
ment on the morning of November 6, 2015, after her
shift had ended.
Later that morning, Officers Bridget Nordstrom, Jesse
Comeau, and Darren Kenyon, all of the Groton Police
Department, arrived at the apartment to investigate the
alleged incident. Nordstrom spoke with A in the apart-
ment while Comeau and Kenyon spoke with the defen-
dant on the balcony. The content of the defendant’s
conversation with Comeau and Kenyon, as set forth in
detail later in this opinion, is disputed. The defendant
subsequently was arrested and charged with sexual
assault in a cohabiting relationship in violation of § 53a-
70b, strangulation in the second degree in violation of
General Statutes § 53a-64bb, and assault in the third
degree in violation of § 53a-61 (a) (1).
At trial, in addition to testifying in detail about the
events of November 5, 2015, A explained her belief
that the defendant had been drinking heavily before he
assaulted her. The jury also heard testimony from A’s
coworkers about the marks on her neck and her partial
disclosure of the incident. Photographs of A’s injuries,
which corroborated her testimony of the assault, were
introduced into evidence, and four video recordings
from the defendant’s cell phone, taken by him at various
times during the incident, were shown to the jury. A
further testified that the sexual assault occurred
between the third and fourth video, and the jury reason-
ably could have found that the noticeable change in
her appearance between those two videos, specifically
her hair being ‘‘messed up,’’ supported her story.
At trial, Comeau testified that, on the day after the
incident, the defendant told him and Kenyon that he
had been drinking the previous day and did not remem-
ber what had happened. Comeau explained: ‘‘We asked
him if he drank enough that he considered himself to
be blacked out, and he said no, he didn’t think so, but
he did not recall any details.’’ Comeau also testified
that the defendant ‘‘did not recall making the video.’’
After the state rested, the defendant testified on his
own behalf. The defendant acknowledged that he and
A had engaged in oral sex on the date in question but
said that it was initiated by A. Further, he characterized
it as completely consensual in nature and testified that
he was not forceful or rough during the oral sex and
that at no point did A communicate that she wanted it
to stop. The defendant denied the occurrence of any
other sexual activity with A that day, or any biting, and
he attributed A’s injuries to her light skin color and the
physical nature of her job. He also explained that A’s
hair became tousled after the third video because he
innocently ruffled her hair, as he had done on prior
occasions. The defendant’s testimony also differed
materially from the version of events as related to the
jury by Comeau. On direct examination, the defendant
testified that he never told the officers that he could
not remember what had happened the prior day. He
agreed that the officers asked him if he had consumed
enough alcohol to black out, and that he had responded
to that inquiry by saying ‘‘no.’’ The defendant then testi-
fied as follows:
‘‘Q. Did [Comeau] ever ask you to provide any details
of the day’s events, the day before?
‘‘A. He asked me to—yeah. He said, would you like
to speak to me about what happened?
‘‘Q. What did you say?
‘‘A. No.
‘‘Q. Why’d you say no?
‘‘A. Because there’s a stigma with the police that if
you tell them anything, no matter it be good or bad,
it’s definitely going to haunt you later.
‘‘Q. Okay.
‘‘A. And without any legal [representation] whatso-
ever, I wasn’t gonna—I wasn’t gonna go through that.
‘‘Q. Okay.
‘‘A. Because it’s two officers outside and me. They
could say I said anything.
‘‘Q. Right. So you thought it [would be] better to
keep quiet.
‘‘A. Right.’’
The defendant acknowledged that he unlocked his
phone for the officers so that they could see the videos.
The prosecutor’s cross-examination of the defendant
involved the following relevant exchange:
‘‘Q. . . . [T]his is [the] first time you’ve shared your
account of what happened on November 5, 2016, pub-
licly, is it not?
‘‘A. With—within this type of environment, yes. I had
a lawyer previously before I had [my current trial
counsel].
‘‘Q. You never shared any of this information with
the police when they were investigating the matter,
did you?
‘‘A. No.
‘‘Q. In fact, when the officers took you outside and
spoke to you, you told them that you didn’t remember
anything about what happened the day before; isn’t that
what you told them?
‘‘A. No.
‘‘Q. That’s not what you told them?
‘‘A. No.
‘‘Q. You’ve seen the police report in the course of
your preparation for the case, and now you’re telling
us that you didn’t tell them that you didn’t remember?
‘‘A. They’re saying that I told them I didn’t remember.
‘‘Q. Oh, and you’re saying that they’re wrong.
‘‘A. Yes.
‘‘Q. And you just chose not to give any details or any
account of what happened on November 5, because of
this apprehension you have about the police and how
they might twist or misconstrue what happened; is
that right?
‘‘A. That’s exactly what happened, isn’t it?
‘‘Q. Now you get to wait and come here and tell us
for the first time your account of what happened.
‘‘A. Yes.’’
The defendant also repeated on cross-examination
that he told the police he had been drinking and that
the officers had asked him ‘‘if [he] had had enough
alcohol to have blacked out . . . .’’ The following
exchange occurred at the end of the cross-examination:
‘‘Q. And your testimony is you never told the police
that you had no memory of what happened?
‘‘A. Correct.
‘‘Q. You had a memory, you just chose not to share
it with them.
‘‘A. Correct.
‘‘Q. Did you lie to them?
‘‘A. No.
‘‘Q. You told them you didn’t remember.
‘‘A. They said I told them I didn’t remember.
‘‘Q. But that’s not what you said?
‘‘A. No. I did not tell them I did not remember.
‘‘Q. Did they ask you to give a statement?
‘‘A. Yes.
‘‘Q. And what was your response to that?
‘‘A. No.
‘‘Q. Did you give them any reason why you didn’t
want to give a statement?
‘‘A. No.’’
In closing argument, the prosecutor referenced the
testimony of Comeau regarding the defendant’s alleged
lack of memory of the events at issue, and pointed out
that both Comeau and the defendant acknowledged
that the officers had asked the defendant whether he
had blacked out. The prosecutor told the jury that it
made sense that the officers had inquired about black-
ing out in response to the defendant’s statement to them
that he could not remember the events of that day. The
prosecutor told the jury, ‘‘The defendant would have
you believe that the officer lied about that. He would
have you believe that the officer came in and lied
. . . .’’ The prosecutor continued: ‘‘You really have to
evaluate all of [the defendant’s] testimony and, again,
ask yourselves whether it’s credible. . . . Ask [your-
selves] whether his claim that the officers lied was
credible. I submit to you it isn’t, and I think his credibil-
ity is a good way of evaluating [A’s] credibility.’’
In his rebuttal argument, the prosecutor again
attempted to discredit the defendant’s testimony. The
prosecutor asked the jury to assess the credibility of
the defendant and A with regard to their respective
versions of events and to assess the relative credibility
of the defendant ‘‘vis-à-vis’’ Officer Comeau. The prose-
cutor argued: ‘‘Finally, you know, when it comes to the
he said/she said, you know, I’ve talked about that
before, but that is really an artificial construct. That is
what the defense would like this case to be, because,
then, it’s a scale and it’s he said this, she said that,
therefore, we can’t have proof beyond a reasonable
doubt. There are a couple things I’d like you to keep
in mind. Evaluate [A’s] demeanor throughout the testi-
mony, evaluate the defendant’s. Evaluate how he came
across. Look at the details of his testimony, which I
would submit to you was entirely self-serving with the
benefit of hearing all the testimony that came before.
‘‘You should also think about his interaction with
Officer Comeau. Officer Comeau was very emphatic,
he was absolutely clear that the defendant said he had
no memory of the events of the day before. That’s why
he asked whether the defendant had a blackout or had
had blackouts in the past. Why else would the subject
of blackouts even come up? The defendant kind of
flatly says no, no, I just didn’t want to . . . share any
information because, you know, you know how tricky
those cops can be. That’s why I’m here. You have to
evaluate the credibility . . . of the defendant vis-à-vis
Officer Comeau.’’ At no point did defense counsel object
to any of the prosecutor’s questions or comments at
issue on appeal.
The jury found the defendant guilty of sexual assault
in a cohabiting relationship and assault in the third
degree, and not guilty of strangulation in the second
degree. He was sentenced to a total of fourteen years
of incarceration, execution suspended after nine years,
and ten years of probation. The defendant appealed to
the Appellate Court and we transferred the appeal to
this court pursuant to General Statutes § 51-199 (c) and
Practice Book § 65-1.
II
The defendant’s first set of claims on appeal are prem-
ised on the contention that the prosecutor made an
impermissible generic tailoring argument during closing
argument when he suggested that the jury should dis-
credit the defendant’s version of events because he had
testified ‘‘with the benefit of hearing all the testimony
that came before.’’ Part A of this section describes tai-
loring in the context of a criminal trial and examines
the case law that has developed in response to past
constitutional challenges to this type of argumentation.
Part B addresses the defendant’s claim that the tailoring
argument made by the prosecutor in the present case
violated his right to confrontation under article first,
§ 8, of the Connecticut constitution. Part C discusses
the defendant’s other appellate claims relating to the
tailoring argument.
A
A prosecutor makes a tailoring argument when he or
she attacks the credibility of a testifying defendant by
asking the jury to infer that the defendant has fabricated
his testimony to conform to the testimony of previous
witnesses. See Portuondo v. Agard, 529 U.S. 61, 73, 120
S. Ct. 1119, 146 L. Ed. 2d 47 (2000). The term most
frequently is used to refer to a prosecutor’s direct com-
ment during closing argument on the defendant’s oppor-
tunity to tailor his testimony, although a prosecutor
sometimes also will use cross-examination to convey
a discrediting tailoring message to the jury.4 There are
two types of tailoring arguments: generic and specific.
The former occurs when the prosecutor argues the
inference solely on the basis of the defendant’s ‘‘pres-
ence at trial and his accompanying opportunity to fabri-
cate or tailor his testimony.’’ State v. Alexander, 254
Conn. 290, 300, 755 A.2d 868 (2000); see also State v.
Daniels, 182 N.J. 80, 98, 861 A.2d 808 (2004) (‘‘[g]eneric
accusations occur when the prosecutor, despite no spe-
cific evidentiary basis that [the] defendant has tailored
his testimony, nonetheless attacks the defendant’s cred-
ibility by drawing the jury’s attention to the defendant’s
presence during trial and his concomitant opportunity
to tailor his testimony’’). A specific tailoring argument,
by contrast, occurs when a prosecutor makes express
reference to the evidence, from which the jury might
reasonably infer that the substance of the defendant’s
testimony was fabricated to conform to the state’s case
as presented at trial. See State v. Daniels, supra, 98
(‘‘[a]llegations of tailoring are specific when there is
evidence in the record, which the prosecutor can iden-
tify, that supports an inference of tailoring’’).
The constitutionality of tailoring arguments has been
the subject of significant judicial attention over the
past twenty-five years. The primary concern under the
federal constitution has been whether tailoring argu-
ments unduly burden the defendant’s sixth amendment5
right to confrontation at trial—a fundamental compo-
nent of the constitutional guarantee that is understood
to include ‘‘the accused’s right to be present in the
courtroom at every stage of his trial.’’ Illinois v. Allen,
397 U.S. 337, 338, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970).
Our court first addressed the constitutionality of tai-
loring arguments in State v. Cassidy, 236 Conn. 112,
155, 672 A.2d 899, cert. denied, 519 U.S. 910, 117 S. Ct.
273, 136 L. Ed. 2d 196 (1996). We held in Cassidy that
generic tailoring arguments violate the sixth amend-
ment’s confrontation clause; id., 120; but specific tai-
loring arguments are constitutionally permissible
because they are ‘‘linked solely to the evidence and not,
either directly or indirectly, to the defendant’s presence
at trial.’’ Id., 128 n.17.6 This court’s reasoning was
straightforward: ‘‘Inviting the fact finder to draw an
inference adverse to a defendant solely on account of
the defendant’s assertion of a constitutional right imper-
missibly burdens the free exercise of that right and,
therefore, may not be tolerated.’’ Id., 127. Cassidy, how-
ever, reassured the state that the prohibition against
generic tailoring arguments did not prevent the prosecu-
tion from aggressively attacking a testifying defendant’s
credibility. We stated that ‘‘the prosecutor, in his closing
argument, was free to challenge the defendant’s version
of the facts by reference to any evidence properly
adduced at trial. . . . [H]owever, he was not free to
assert that the defendant’s presence at trial had enabled
him to tailor his testimony to that of other witnesses.
Such argument exceeded the bounds of fair comment
because it unfairly penalized the defendant for asserting
his constitutionally protected right to confront his
accusers at trial.’’ (Footnote omitted.) Id., 128–29.
Four years later, the sixth amendment underpinning
of Cassidy was removed when the United States
Supreme Court held that generic tailoring arguments
do not violate any federal constitutional rights.7 Por-
tuondo v. Agard, supra, 529 U.S. 75–76. In Portuondo,
the court distinguished between a prosecutor’s effort
to discredit a defendant by commenting on his refusal
to testify at trial, which is prohibited because the jury
is not allowed to infer guilt on that basis under Griffin
v. California, 380 U.S. 609, 614–15, 85 S. Ct. 1229, 14
L. Ed. 2d 106 (1965), and a tailoring argument, which
invites the jury to act on its ‘‘natural and irresistible’’
inclination to make the permissible inference of tai-
loring from a defendant’s presence throughout all of
the prior trial testimony. Id., 65, 67–68. The court
pointed out that generic tailoring arguments pertain to
the defendant’s ‘‘credibility as a witness, and [are]
therefore in accord with our [long-standing] rule that
when a defendant takes the stand, his credibility may
be impeached and his testimony assailed like that of any
other witness.’’ (Emphasis in original; internal quotation
marks omitted.) Id., 69.
The Portuondo majority emphasized that its ruling
was limited to federal constitutional grounds and did
not address whether generic tailoring arguments were
‘‘always desirable as a matter of sound trial practice,’’
which, the court explained, was an inquiry ‘‘best left to
trial courts, and to the appellate courts which routinely
review their work.’’ Portuondo v. Agard, supra, 529 U.S.
73 n.4. This caveat also was noted in a concurrence by
Justice Stevens, in which he expressed the view that
generic tailoring arguments ‘‘should be discouraged
rather than validated,’’ and emphasized that the majori-
ty’s holding ‘‘does not, of course, deprive [s]tates or trial
judges of the power . . . to prevent such argument[s]’’
altogether. Id., 76.8
Because Cassidy was decided under the federal con-
stitution, Portuondo required us to overrule its holding,
which we did in State v. Alexander, supra, 254 Conn.
296. We stated in Alexander that generic tailoring com-
ments ‘‘on the defendant’s presence at trial and his
accompanying opportunity to fabricate or tailor his tes-
timony’’ were permissible under the federal constitu-
tion. Id., 300. Although the defendant in Alexander
raised a state constitutional claim through supplemen-
tal briefing, this court was ‘‘not persuaded by his argu-
ment.’’ Id., 296 n.9.
B
The defendant’s constitutional claim rests on two
foundational propositions, each of which must prove
correct for his claim to succeed. First, the defendant
contends that the prosecutor made a generic tailoring
argument when he asked the jury to ‘‘[l]ook at the details
of [the defendant’s] testimony, which I would submit
to you was entirely self-serving with the benefit of hear-
ing all the testimony that came before.’’ Second, the
defendant claims that generic tailoring arguments,
though permissible as a matter of federal constitutional
law under Portuondo, nonetheless violate the confron-
tation right contained in article first, § 8, of the Connect-
icut constitution, which the defendant says provides
broader protection than its federal counterpart. The
state disputes the defendant’s state constitutional analy-
sis and also argues as a threshold matter that there is
no need to reach the constitutional question because
the prosecutor made a permissible specific tailoring
argument by tying the challenged comment to evidence
that would support a claim of tailoring. We agree with
the state that the prosecutor’s comments constituted
specific tailoring, and, therefore, we do not reach the
defendant’s state constitutional claim.
The defendant did not object to the prosecutor’s tai-
loring comment at trial, and we consequently review
the defendant’s unpreserved constitutional claim under
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823
(1989),9 because the record is adequate for review and
the defendant alleges a violation of a state constitutional
right. See, e.g., State v. Harris, 330 Conn. 91, 114–15
n.16, 191 A.3d 119 (2018) (‘‘[T]he record is adequate for
our review of the defendant’s state constitutional claim
and it is of constitutional magnitude. We therefore con-
sider it in accordance with the principles for appellate
review of unpreserved constitutional claims articulated
by this court in State v. Golding . . . .’’); see also State
v. Peeler, 271 Conn. 338, 360, 857 A.2d 808 (2004) (‘‘[t]he
first two [prongs of Golding] involve a determination
of whether the claim is reviewable’’ [internal quotation
marks omitted]), cert. denied, 546 U.S. 845, 126 S. Ct.
94, 163 L. Ed. 2d 110 (2005).
A close examination of the pertinent evidentiary
record, as laid out in part I of this opinion, is necessary
to understand the context in which the tailoring argu-
ment was made. One part of the relevant evidentiary
record involved the conflicting testimony of the defen-
dant and the investigating officer, Comeau, regarding
the defendant’s memory of the incident when inter-
viewed the following day. In addition, there were signifi-
cant conflicts between the trial testimonies of the defen-
dant and A regarding the underlying events. Most
basically, the defendant denied that any sexual activity
had occurred other than consensual oral sex, and their
testimonies conflicted with regard to certain details of
the alleged encounter as well.
During his rebuttal closing argument, the prosecutor
urged the jury critically to evaluate the defendant’s cred-
ibility by reference to both A’s testimony and Comeau’s
testimony. On appeal, the defendant focuses on only
one part of a single sentence in the prosecutor’s rebuttal
argument, in which he stated: ‘‘Look at the details of
[the defendant’s] testimony, which I would submit to
you was entirely self-serving with the benefit of hearing
all the testimony that came before.’’ (Emphasis added.)
However, we must view that statement in context to
determine the true nature of the prosecutor’s argument.
The statement was immediately preceded by a refer-
ence to the conflicting versions of events offered by A
and the defendant at trial, and immediately followed
by the suggestion that the defendant’s version was fabri-
cated because he actually had no memory of the events,
as he had told Comeau the day following the assault.
We conclude that the challenged tailoring comment was
‘‘specific’’ rather than ‘‘generic’’ because the suggestion
of tailoring was tied to evidence that, if credited by the
jury, could have supported such a claim.10 The prosecu-
tor’s argument contained two different but related evi-
dence-based assertions: first, the discrepancy between
the defendant’s pretrial statement to Comeau and his
in-court trial testimony supports the inference that his
in-court testimony is false; and second, the defendant’s
false testimony about his memory allowed him to con-
form his recitation of events to that of A’s trial testi-
mony, thereby supporting a reasonable inference of
tailoring. The tailoring theory could have been articu-
lated more clearly, but it was made, and it amounted
to a specific tailoring argument because it was tied to
evidence that supported such an inference.
In light of this conclusion, we need not decide
whether our state constitution provides broader protec-
tion against generic tailoring arguments than does the
federal constitution.11 We emphasize that this holding
addresses only the defendant’s state constitutional
claim and should not be taken to indicate our blanket
approval of all tailoring arguments as a matter of proper
trial practice, an issue that we take up at greater length
in part II C of this opinion.
C
We next address the defendant’s claims that, even if
the prosecutor’s tailoring argument did not violate the
confrontation clause of the state constitution, this court
should reverse his conviction on the basis of prosecu-
torial impropriety or under the plain error doctrine, or
in the exercise of our supervisory authority. We do not
find any of these arguments persuasive.
‘‘[I]n analyzing claims of prosecutorial [impropriety],
we engage in a two step analytical process. The two
steps are separate and distinct: (1) whether [an impro-
priety] occurred in the first instance; and (2) whether
that [impropriety] deprived a defendant of his due pro-
cess right to a fair trial.’’12 (Internal quotation marks
omitted.) State v. Ciullo, 314 Conn. 28, 34–35, 100 A.3d
779 (2014). ‘‘[P]rosecutorial [impropriety] of a constitu-
tional magnitude can occur in the course of closing
arguments. . . . While the privilege of counsel in
addressing the jury should not be too closely narrowed
or unduly hampered, it must never be used as a license
to state, or to comment upon, or to suggest an inference
from, facts not in evidence, or to present matters which
the jury ha[s] no right to consider.’’ (Internal quotation
marks omitted.) Id., 37–38. As we have explained, the
prosecutor’s tailoring argument in the present case was
tied to evidence permitting an inference of tailoring,
and we therefore reject the defendant’s claim that it
rose to the level of a prosecutorial impropriety.
We also disagree with the defendant’s alternative
claim that the tailoring argument was plain error.13 ‘‘An
appellate court addressing a claim of plain error first
must determine if the error is indeed plain in the sense
that it is patent [or] readily [discernible] on the face of
a factually adequate record, [and] also . . . obvious in
the sense of not debatable. . . . This determination
clearly requires a review of the plain error claim pre-
sented in light of the record. . . . [An appellant] cannot
prevail . . . unless he demonstrates that the claimed
error is both so clear and so harmful that a failure to
reverse the judgment would result in manifest injus-
tice.’’ (Citations omitted; emphasis in original; internal
quotation marks omitted.) State v. McClain, 324 Conn.
802, 812, 155 A.3d 209 (2017). Because tailoring argu-
ments are permissible under the federal constitution;
see Portuondo v. Agard, supra, 529 U.S. 65–73; State v.
Alexander, supra, 254 Conn. 294–300; we hold that the
prosecutor’s comment did not constitute plain error
that requires reversal of the defendant’s judgment of
conviction.
Finally, and for similar reasons, we decline the defen-
dant’s request that we invoke our supervisory authority
to reverse his judgment of conviction and adopt a rule
prohibiting generic tailoring arguments. ‘‘It is well set-
tled that [a]ppellate courts possess an inherent supervi-
sory authority over the administration of justice. . . .
Under our supervisory authority, we have adopted rules
intended to guide the lower courts in the administration
of justice in all aspects of the criminal process.’’ (Cita-
tion omitted; internal quotation marks omitted.) State
v. Elson, 311 Conn. 726, 764–65, 91 A.3d 862 (2014).
‘‘Generally, cases in which we have invoked our supervi-
sory authority for rule making have fallen into two
categories. . . . In the first category are cases wherein
we have utilized our supervisory power to articulate a
procedural rule as a matter of policy, either as [a] hold-
ing or dictum, but without reversing [the underlying
judgment] or portions thereof. . . . In the second cate-
gory are cases wherein we have utilized our supervisory
powers to articulate a rule or otherwise take measures
necessary to remedy a perceived injustice with respect
to a preserved or unpreserved claim on appeal.’’ (Cita-
tions omitted; footnote omitted; internal quotation
marks omitted.) In re Daniel N., 323 Conn. 640, 646–47,
150 A.3d 657 (2016).
Because we do not disapprove of specific tailoring
arguments when they are warranted by the evidentiary
record, we have no occasion at this time to exercise
our supervisory authority to regulate generic tailoring
arguments. We see no immediate need to establish a
prospective rule. We also see no reason to invoke our
supervisory authority to remedy an injustice relating
to the prosecutor’s targeted use of a specific tailoring
argument in the present case; no such injustice
occurred here, for the reasons previously discussed.
Again, although the prosecutor’s allegation of tailoring
was not described with optimal clarity, his statement
that the defendant’s testimony ‘‘was entirely self-serving
with the benefit of hearing all the testimony that came
before,’’ was supported by his explicit reference to spe-
cific evidence that could lead to a reasonable inference
of tailoring. For that reason, it was not improper.
We pause briefly to qualify our holding in this regard
to prevent any future misunderstanding. Our approval
of specific tailoring arguments should not be taken as
a blanket approval of all tailoring arguments. To the
contrary, a tailoring argument does not automatically
become appropriate just because a defendant chooses
to testify in his or her criminal trial, and prosecutors
and trial courts must take care to ensure that any such
argument is tied expressly and specifically to evidence
that actually supports the inference of tailoring. It is true
that the United States Supreme Court held in Portuondo
that tailoring arguments do not violate the sixth amend-
ment, but the court made equally clear, however, that
state courts may prohibit or limit tailoring arguments
by local decree as a matter of sound trial practice.
See Portuondo v. Agard, supra, 529 U.S. 73 n.4; id., 76
(Stevens, J., concurring). Although the present case
does not require us to decide at this time whether to
adopt a formal rule prohibiting generic tailoring argu-
ments as an exercise of our supervisory authority, such
a rule may become necessary if future cases reveal that
tailoring arguments are being made indiscriminately
and without an appropriate evidentiary basis. Likewise,
the fact that generic tailoring arguments do not burden
federal constitutional rights does not mean that they
pass constitutional muster under our state constitution.
We express no view on these issues, but observe that
a number of our sister states have determined that
generic tailoring arguments are impermissible as a mat-
ter of sound trial practice or state law. See, e.g., Marti-
nez v. People, 244 P.3d 135, 140–42 (Colo. 2010) (generic
tailoring arguments are improper); State v. Mattson,
122 Haw. 312, 327–28, 226 P.3d 482 (2010) (generic
tailoring arguments in closing argument are improper
under state constitution); Commonwealth v. Gaudette,
441 Mass. 762, 767, 808 N.E.2d 798 (2004) (generic tai-
loring arguments in closing argument are impermissi-
ble); State v. Swanson, 707 N.W.2d 645, 657–58 (Minn.
2006) (‘‘although not constitutionally required, the bet-
ter rule is that the prosecution cannot use a defendant’s
exercise of his right of confrontation to impeach the
credibility of his testimony, at least in the absence of
evidence that the defendant has tailored his testimony
to fit the state’s case’’); State v. Daniels, supra, 182 N.J.
98 (using supervisory authority to hold as impermissible
generic tailoring arguments during closing argument);
State v. Wallin, 166 Wn. App. 364, 376–77, 269 P.3d 1072
(2012) (generic tailoring suggestion on cross-examina-
tion impermissible).
III
The defendant’s other principal claim on appeal
relates to a different trial tactic allegedly used by the
prosecutor to undermine the defendant’s credibility.
The defendant argues that the prosecutor violated his
right to a fair trial under State v. Singh, supra, 259
Conn. 693, by conveying to the jury that, in order to
find the defendant not guilty, it must find that Comeau
had lied.14 The state denies that any Singh violation
occurred and further responds that the defendant was
not deprived of his right to a fair trial because the
defendant himself ‘‘interjected the issue of whether the
police testimony was credible’’ by ‘‘suggest[ing] that
the police were lying or twisting what he told them
. . . .’’ Additionally, the state claims that ‘‘the alleged
improprieties, if they existed, were neither severe nor
frequent, nor critical to the central issues of the case,’’
and that ‘‘the objected-to testimony and argument did
not directly relate to evidence of the crime.’’ For pur-
poses of our analysis, we assume, without deciding,
that Singh was violated, but we nonetheless conclude
that the defendant was not deprived of his right to a
fair trial.15
As we noted previously, when a defendant raises
a claim of prosecutorial impropriety, we first ‘‘must
determine whether any impropriety in fact occurred;
second, we must examine whether that impropriety, or
the cumulative effect of multiple improprieties,
deprived the defendant of his due process right to a
fair trial. . . . To [do so], we must determine whether
the sum total of [the prosecutor’s] improprieties ren-
dered the defendant’s [trial] fundamentally unfair
. . . . The question of whether the defendant has been
prejudiced by prosecutorial [improprieties], therefore,
depends on whether there is a reasonable likelihood
that the jury’s verdict would have been different absent
the sum total of the improprieties. . . . Accordingly,
it is not the prosecutorial improprieties themselves but,
rather, the nature and extent of the prejudice resulting
therefrom that determines whether a defendant is enti-
tled to a new trial.’’ (Citation omitted; internal quotation
marks omitted.) State v. Jones, 320 Conn. 22, 34–35,
128 A.3d 431 (2015). ‘‘[W]hen a defendant raises on
appeal a claim that improper remarks by the prosecutor
deprived [him] of his constitutional right to a fair trial,
the burden is on the defendant to show, not only that
the remarks were improper, but also that, considered
in light of the whole trial, the improprieties were so
egregious that they amounted to a denial of due pro-
cess.’’ (Internal quotation marks omitted.) Id., 37.
In order to address whether the defendant was
deprived of his due process right to a fair trial, we
consider the factors set forth in State v. Williams, 204
Conn. 523, 529 A.2d 653 (1987), which include, ‘‘[1]
the extent to which the [impropriety] was invited by
defense conduct or argument . . . [2] the severity of
the [impropriety] . . . [3] the frequency of the [impro-
priety] . . . [4] the centrality of the [impropriety] to
the critical issues in the case . . . [5] the strength of the
curative measures adopted . . . and [6] the strength
of the state’s case.’’ (Citations omitted.) Id., 540. ‘‘As
is evident upon review of these factors, it is not the
prosecutor’s conduct alone that guides our inquiry, but,
rather, the fairness of the trial as a whole.’’ State v.
Singh, supra, 259 Conn. 701. In addition, the fact that
the defendant did not object to the remarks at trial is
part of our consideration of ‘‘whether a new trial or
proceeding is warranted . . . .’’ (Internal quotation
marks omitted.) State v. Ciullo, supra, 314 Conn. 36.
Applying the Williams factors to the present case, we
conclude that the defendant was not deprived of his
due process right to a fair trial.
We begin by assessing whether there were any
instances of defense conduct or argument that invited
the alleged improprieties. This factor weighs heavily
against finding a due process violation in the present
case. The prosecutor would have been hard-pressed to
avoid confronting, directly and forcefully, the defen-
dant’s prominent claim that the police officers misrepre-
sented what he had said to them the day following
the incident. ‘‘[T]he defendant himself, by virtue of his
defense, claimed that the witnesses against him were
lying.’’ State v. Stevenson, 269 Conn. 563, 594, 849 A.2d
626 (2004). Thus, the prosecutor’s ‘‘attempt[s] to charac-
terize [the defendant’s] defense in this manner was
invited and, therefore, not harmful under our holding
in Singh.’’ Id.
In the overall context of the trial, it is fair to say
that the alleged improprieties were relatively ‘‘limited
in frequency.’’ State v. Ritrovato, 280 Conn. 36, 67, 905
A.2d 1079 (2006); see id., 66–67 (holding that one ques-
tion regarding victim’s credibility answered by expert
witness in cross-examination and brief reference to her
testimony in closing argument meant that improprieties
were not frequent). The comments also were not severe.
‘‘In determining whether prosecutorial impropriety is
severe, we consider whether defense counsel objected
to the improper remarks, requested curative instruc-
tions, or moved for a mistrial. . . . We also consider
whether the impropriety was blatantly egregious or
inexcusable.’’ (Citation omitted; internal quotations
marks omitted.) State v. Ciullo, supra, 314 Conn. 59.
We consider the lack of objection by the defendant to
the allegedly improper comments as a strong indication
that they did not carry substantial weight in the course
of the trial as a whole and were not so egregious that
they caused the defendant harm.
Because the defendant took no curative actions, and
did not ask for any such measures from the trial court,
he ‘‘bears much of the responsibility for the fact that
[the improprieties went] uncured.’’ Id., 61. We also find
some comfort in the instructions that the trial court
gave to the jury, both before and after the presentation
of evidence, on witness credibility and police officer tes-
timony.16
Finally, we take stock of the strength of the state’s
case as a whole. The outcome at trial was not a foregone
conclusion, to be sure, and we do not doubt that the
jury’s assessment of witness credibility was a significant
factor in determining its verdict. But the jury also was
presented with substantial physical and testimonial evi-
dence corroborating A’s story, including photographs
of marks and bruising in the exact places that aligned
with her version of events, video footage substantiating
her claims, and the testimony of her coworkers. Even
if ‘‘[t]he state’s case may not have been ironclad . . .
we have never stated that the state’s evidence must
have been overwhelming in order to support a conclu-
sion that prosecutorial [impropriety] did not deprive
the defendant of a fair trial.’’ (Internal quotation marks
omitted.) State v. Stevenson, supra, 269 Conn. 596. We
also derive confidence in the jury’s ability to carefully
weigh the evidence, free from prosecutorial overreach,
in light of its finding of not guilty of the crime of strangu-
lation in the second degree, which ‘‘clearly demon-
strat[es] the [jury’s] ability to filter out the allegedly
improper statements and make independent assess-
ments of credibility.’’ State v. Ciullo, supra, 314
Conn. 60.
In sum, our examination of the entire record con-
vinces us that any alleged Singh violation did not ‘‘so
[infect] the trial with unfairness as to make the convic-
tion a denial of due process.’’ (Internal quotation marks
omitted.) State v. Singh, supra, 259 Conn. 700. Rather,
‘‘the trial as a whole was fundamentally’’ fair; (internal
quotation marks omitted) id.; and we firmly believe that
‘‘there is not a reasonable likelihood that the jury’s
verdict would have been different absent the improprie-
ties.’’ State v. Albino, 312 Conn. 763, 792–93, 97 A.3d
478 (2014). As such, our analysis of the record pursuant
to the Williams factors leads us to conclude that the
defendant was not denied his due process right to a
fair trial.
The judgment is affirmed.
In this opinion the other justices concurred.
1
A ‘‘tailoring argument’’ is used by a prosecutor to attack the credibility
of a criminal defendant by asking the jury to infer that the defendant has
fabricated his testimony to conform to the testimony of previous witnesses.
See Portuondo v. Agard, 529 U.S. 61, 73, 120 S. Ct. 1119, 146 L. Ed. 2d 47
(2000). As we discuss later in this opinion, the case law distinguishes between
two types of tailoring arguments, generic and specific. A generic tailoring
argument attacks the defendant’s credibility solely by reference to the fact
of his presence at trial; a claim of specific tailoring, by contrast, expressly
references evidence before the jury to support an inference that the defen-
dant tailored his testimony to fit the state’s case. See part II A of this opinion.
2
Article first, § 8, of the constitution of Connecticut, as amended by
articles seventeen and twenty-nine of the amendments, provides in relevant
part: ‘‘In all criminal prosecutions, the accused shall have a right to be heard
by himself and by counsel . . . [and] to be confronted by the witnesses
against him . . . . No person shall be compelled to give evidence against
himself, nor be deprived of life, liberty or property without due process of
law . . . .’’
3
In accordance with our policy of protecting the privacy interests of the
victims of sexual assault, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
4
For example, in a tailoring case decided by the Colorado Supreme Court,
the prosecutor, in addition to making a tailoring argument in her closing
rebuttal argument, asked the defendant during cross-examination, ‘‘[y]ou’ve
had the advantage of sitting in court today and listening to all the testimony,
as well as yesterday; is that correct?’’ Martinez v. People, 244 P.3d 135, 137
(Colo. 2010). In the present case, the defendant’s claim on appeal relates
solely to the prosecutor’s tailoring comment in closing argument.
5
The sixth amendment to the United States constitution provides in rele-
vant part: ‘‘In all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him . . . .’’ This right
applies to the states through the due process clause of the fourteenth amend-
ment to the federal constitution. See, e.g., Pointer v. Texas, 380 U.S. 400,
406, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965); State v. Munoz, 233 Conn. 106,
151 n.9, 659 A.2d 683 (1995).
6
This court in Cassidy observed that the prosecutor’s generic tailoring
argument impermissibly burdened not only the defendant’s confrontation
rights, but also ‘‘the defendant’s exercise of his constitutional right to testify
in his own behalf, an entitlement rooted in the guarantees of the fifth, sixth
and fourteenth amendments to the United States constitution. See Rock v.
Arkansas, 483 U.S. 44, 51–53, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987); State
v. Paradise, 213 Conn. 388, 404, 567 A.2d 1221 (1990).’’ State v. Cassidy,
supra, 236 Conn. 128 n.16. We noted that, ‘‘[b]ecause the defendant [did]
not [raise] this claim,’’ we did not base our decision on it. Id.
7
In addition to holding that generic tailoring arguments do not violate
any sixth amendment rights, Portuondo also rejected the defendant’s claim
that such arguments violated his fifth amendment right to testify on his own
behalf. Portuondo v. Agard, supra, 529 U.S. 65–73. The defendant has not
raised a claim under our state constitution’s analogue to the fifth amendment.
8
Justice Ginsburg dissented in Portuondo on the basis of her belief that
generic tailoring arguments in closing arguments unduly burden a defen-
dant’s sixth amendment right to be present at trial and to confront the
accusers against him, and do not aid the jury in its truth-seeking function
because a ‘‘prosecutorial comment . . . tied only to the defendant’s pres-
ence in the courtroom and not to his actual testimony’’ does not assist the
jury in ‘‘sort[ing] those who tailor their testimony from those who do not,
much less the guilty from the innocent.’’ Id., 77–78.
9
Pursuant to Golding, ‘‘a defendant can prevail on a claim of constitutional
error not preserved at trial only if all of the following conditions are met:
(1) the record is adequate to review the alleged claim of error; (2) the claim
is of constitutional magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless error analysis, the
state has failed to demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt. In the absence of any one of these
conditions, the defendant’s claim will fail.’’ (Emphasis in original; footnote
omitted.) State v. Golding, supra, 213 Conn. 239–40; see also In re Yasiel R.,
317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying third prong of Golding).
10
The defendant contends that the prosecutor made ‘‘a classic generic
tailoring argument,’’ rather than a specific tailoring argument, because he
explicitly referenced the defendant’s presence at trial ‘‘with the benefit of
hearing all the testimony that came before.’’ We disagree. As we explained
in the text of this opinion, specific tailoring occurs when a prosecutor
substantiates his or her tailoring argument with express references to the
evidence before the jury. See, e.g., State v. Mattson, 122 Haw. 312, 327, 226
P.3d 482 (2010) (‘‘[b]ecause the prosecution referred to specific evidence
presented at trial in addition to referring to [the defendant’s] presence at
trial, it cannot be said that the prosecutor’s remarks during closing argument
constituted a ‘generic accusation’ that [the defendant] tailored his testimony
based solely on his presence at trial’’ [emphasis in original]).
11
The defendant does not raise a claim on appeal that specific tailoring
arguments violate the state constitution. To the extent that the defendant
contends in his reply brief that the Connecticut constitution prohibits the
state from making any reference to the defendant’s presence at trial as part
of a tailoring argument, generic or specific, we decline to address this claim
because it was raised for the first time in the defendant’s reply brief. See,
e.g., State v. Devalda, 306 Conn. 494, 519 n.26, 50 A.3d 882 (2012) (declining
to review claim ‘‘because it is well settled that claims that are not raised
in parties’ main briefs, but instead are raised for the first time in reply briefs,
ordinarily are considered abandoned’’).
12
We can review this unpreserved claim because, ‘‘under settled law, a
defendant who fails to preserve claims of prosecutorial [impropriety] need
not seek to prevail under the specific requirements of State v. Golding,
[supra, 213 Conn. 239–40], and, similarly, it is unnecessary for a reviewing
court to apply the four-pronged Golding test.’’ (Internal quotation marks
omitted.) State v. Payne, 303 Conn. 538, 560, 34 A.3d 370 (2012).
13
‘‘[T]he plain error doctrine . . . is not . . . a rule of reviewability. It
is a rule of reversibility. That is, it is a doctrine that this court invokes in order
to rectify a trial court ruling that, although either not properly preserved
or never raised at all in the trial court, nonetheless requires reversal of the
trial court’s judgment . . . for reasons of policy.’’ State v. Ruocco, 322 Conn.
796, 803, 144 A.3d 354 (2016).
14
In support of this claim, the defendant points to a number of exchanges
on cross-examination between himself and the prosecutor in which the
prosecutor challenged the inconsistencies between his and Comeau’s testi-
monies, including, inter alia, the prosecutor’s asking whether Comeau’s
testimony was ‘‘wrong,’’ and whether the defendant had declined to give a
statement to Comeau due to his apprehension that the police ‘‘might twist
or misconstrue’’ what he told them. The defendant also highlights the prose-
cutor’s statement during closing argument that ‘‘[t]he defendant would have
you believe that the officer lied about [what the defendant told him]. He
would have you believe that the officer came in and lied . . . .’’ He further
notes that the prosecutor argued to the jury that it had ‘‘to evaluate the
credibility . . . of the defendant vis-à-vis Officer Comeau.’’
15
Defense counsel did not object to the prosecutor’s remarks at trial, and,
therefore, we review his claim under the factors set forth in State v. Williams,
204 Conn. 523, 540, 529 A.2d 653 (1987). See State v. Ciullo, supra, 314
Conn. 35 (‘‘[t]he consideration of the fairness of the entire trial through
the Williams factors duplicates, and, thus makes superfluous, a separate
application of the Golding test’’ [internal quotation marks omitted]).
16
The jury was instructed that it was the sole judge of witness credibility,
and it alone would determine ‘‘where the truth lies.’’ After hearing the
evidence and closing arguments, the trial court instructed the jury that ‘‘[i]t
is not [the prosecutor’s or defense counsel’s] assessment of the credibility
of the witnesses that matters, only yours.’’ Further, the court instructed the
jury that the defendant’s testimony should be evaluated in the same manner
as that of any other witness, and that inconsistent statements, including
denials of recollection, should be evaluated only as to the credibility of the
witness. The court instructed the jury that the testimony of a police officer
‘‘is entitled to no special or exclusive weight . . . .’’