dissenting. I would hold that the state failed to meet its burden of proving that the evidence admitted in violation of Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), was harmless beyond a reasonable doubt.
In Doyle, the United States Supreme Court held that it is fundamentally unfair, and therefore in violation *219of due process, for the state to use a defendant’s silence after receiving Miranda warnings to impeach the defendant. The Doyle court “based its holding in two considerations: First, it noted that silence in the wake of Miranda warnings is insolubly ambiguous and consequently of little probative value. Second and more important, it observed that while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.”1 (Internal quotation marks omitted.) State v. Jones, 215 Conn. 173, 183-84, 575 A.2d 216 (1990).
Subsequent decisions have made clear that the Doyle principle is violated when the state uses post-Miranda silence as affirmative proof of a defendant’s guilt, as well as when the state uses the evidence for impeachment purposes. United States v. Szymaniak, 934 F.2d 434, 439 (2d Cir. 1991); State v. Hull, 210 Conn. 481, 489, 556 A.2d 154 (1989). “ ‘With respect to post-Miranda warnings “silence,” . . . silence does not *220mean only muteness; it includes the statement of a desire to remain silent, as well as of a desire to remain silent until an attorney has been consulted.’ [Wainwright v. Greenfield, 474 U.S. 284, 295, 106 S. Ct. 634, 88 L. Ed. 2d 623 (1986)].” State v. Hull, supra, 489.
In view of these standards, it is clear that the Appellate Court correctly determined that the admission of the defendant’s statements regarding his right to remain silent and his right to counsel violated the defendant’s right to due process. Contrary to the majority’s gratuitous suggestion, the admission of the defendant’s statements was not necessary to establish the context of the investigative efforts made by the police. Although the state had a legitimate interest in exposing the defendant’s inculpating statements at the time of arrest; Anderson v. Charles, 447 U.S. 404, 408, 100 S. Ct. 2180, 65 L. Ed. 2d 222 (1980); this interest “could have been served by carefully framed questions that avoided any mention of the defendant’s exercise of his constitutional rights to remain silent and to consult counsel.” Wainwright v. Greenfield, supra, 474 U.S. 295.
The majority holds the admission of the defendant’s statements invoking his constitutional rights harmless. Because the majority does not make clear the context in which the state elicited the Doyle violations before the jury, I will briefly restate the evidence. Walling-ford police detectives Theodore Milewski and Patrick Shanley both testified regarding their interrogation and subsequent arrest of the defendant for kidnapping and sexual assault. On the ninth day of trial, Milewski testified that the two detectives confronted the defendant at the West Haven police department. The jury was never informed that the defendant was being held there on his sister’s complaint that he had used her car without permission in violation of General Statutes § 53a-119b. Milewski testified that he and Shanley told *221the defendant that they were investigating a sexual assault that had occurred earlier that day, and that he was the accused. The defendant asked who they were. Milewski explained that they were Wallingford police officers, and the defendant stated: “It didn’t happen.” Milewski read the defendant his Miranda rights, and asked the defendant if he understood them. The defendant responded in the affirmative. Next, Milewski asked the defendant if he wished to waive his rights or give up his rights. The defendant’s “reaction was, no, that he would not give up anything.”
Milewski further testified that the defendant then asked Shanley, “When did this happen?” Shanley told the defendant that it had occurred early that morning, and the defendant stated that he had been at a bar called Monahan’s Shamrock Cafe until closing, and named several individuals who would support his alibi. The defendant said that he could not remember what he did after the bar closed because he had been drunk. Shanley then requested that the defendant consent to give a sample of his pubic hair, and the defendant refused. Milewski testified: “Then Shanley asked him if he knew a girl by the name of [the complainant]. At that point he said, ‘no. I don’t think I want to give up anything. I want to talk to a lawyer.’ ” Milewski testified that he next made a telephone call to the Walling-ford police department, and learned that the complainant had signed a sworn statement. Finally, Milewski testified: “We then placed Mr. Daugaard under arrest. We arrested him at this time for sexual assault in the first degree and unlawful restraint, and from that point transported him back to Wallingford police department headquarters.”
On the eleventh day of trial, Shanley repeated all of the testimony that Milewski had provided. In particular, he testified that, when advised of his rights, the defendant “stated words to the effect that he was not *222giving up anything . . . .” Shanley clarified that he had requested that the defendant “consent to a search of his personal body as far as head hair and a sample of his pubic hair, and a saliva sample, a blood sample. He declined that, and stated that he would not submit to that.” In addition, Shanley testified that “I asked him if knew a girl by the name of [the complainant]. He said no. At that point he didn’t want to answer any more. He didn’t want to [talk] any more without speaking to an attorney. We terminated our conversation at that point.” Shanley further testified that they subsequently obtained a search warrant for the defendant’s hair and blood samples.
“When error is of constitutional dimension, the state has the burden of proving it harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24-26, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967).” State v. Jones, supra, 215 Conn. 184. The state must demonstrate that there is no reasonable possibility that the improperly admitted evidence contributed to the conviction. Id. “The harmlessness of an error depends upon its impact on the trier and the result, not upon whether the particular evidence involved was legally essential to support the finding. . . State v. Moscone, 171 Conn. 500, 508-509, 370 A.2d 1030 (1976) (Miranda violation not harmless despite abundance of properly admitted evidence tending to prove guilt).” (Citations omitted; internal quotation marks omitted.) State v. Hull, supra, 210 Conn. 492. To ascertain harmlessness, the Doyle violations are examined in the context of the record as a whole. Harrington v. California, 395 U.S. 250, 254, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969).
In the present case, the Doyle violations were elicited on direct examination, but, as the majority notes, the state did not direct attention to them at summation. *223“When the prosecutor does not directly tie the fact of [the] defendant’s silence to his exculpatory story, i.e., when the prosecutor elicits that fact on direct examination and refrains from commenting on it or adverting to it again, and the jury is never told that such silence can be used for impeachment purposes, reversible error results if the exculpatory story is not totally implausible or the indicia of guilt not overwhelming.” (Emphasis added.) Chapman v. United States, 547 F.2d 1240, 1249 (5th Cir.), cert. denied, 431 U.S. 908, 97 S. Ct. 1705, 52 L. Ed. 2d 393 (1977); State v. Canty, 223 Conn. 703, 728 n.2, 613 A.2d 1287 (1992) (Berdon, J., dissenting); see State v. Silano, 204 Conn. 769, 781, 529 A.2d 1283 (1987) (Doyle error may be harmless if “the exculpatory story is transparently frivolous and evidence of guilt is otherwise overwhelming” [internal quotation marks omitted]).
In my opinion, the Doyle violations were clearly harmful in the present case. First of all, the defendant’s exculpatory story was not implausible. The majority would lead one to believe that unless the defendant testified or there was other direct evidence of an exculpatory story, the state has satisfied the first test for harmlessness. This is simply not the case, and certainly does not provide a justification for the majority to reject the defendant’s theory of defense. Through cross-examination, presentation of evidence, and argument the defendant developed the defense that the complainant had fabricated the sexual assault to appease her physically abusive boyfriend, Murray, after staying out all night with the defendant. The complainant admitted on cross-examination by the defendant that Murray had assaulted her on more than one occasion before the incident, hitting her in the face and on other parts of her body. She had twice called the police as a result of these assaults, and there were times that she had been physically abused and had not called the *224police.2 In particular, he would strike her when he had been drinking. Murray testified that he had been drinking the night of the alleged sexual assault—six and one-half beers, and a shot of vodka before the complainant left with the defendant—although this only affected him “slightly.” The defendant did not dispute that the defendant and the complainant drank at Murray’s apartment, and then left together in the defendant’s automobile.3 The complainant arrived back at Murray’s *225house so late that it was getting light outside. This was approximately five hours after she left. When she arrived at Murray’s house she perceived that Murray was angry at the defendant. At that point, she did not tell Murray what had happened. When she finally told Murray what had happened, one-half hour after she had arrived, he stopped being angry and became supportive of her. The defendant elicited all of this evidence on cross-examination of the state’s witnesses. Accordingly, I disagree with the majority that there was “little or no” evidence to support the defendant’s theory of defense, which was that the complainant fabricated the story of a forcible sexual assault in order to appease Murray, because he was angry and had battered her in the past.
*226The defendant’s theory of defense and the evidence elicited in support thereof alone should result in a determination that the state failed to sustain its burden of proving the Doyle errors harmless beyond a reasonable doubt. Instead, the majority dismisses the defendant’s defense because it was inconsistent with the defendant’s statement to police, while being interrogated in the West Haven lockup and after having been accused of rape, that he did not know the complainant. This is misleading and unfair to the defendant, because at trial the defendant never attempted to controvert, through cross-examination of witnesses, presentation of evidence or in summation, the fact that the defendant had driven with the complainant in the vehicle. It is the defense presented- at trial that we must focus on in order to determine whether the defense “is not totally implausible.”
Second, the evidence of guilt in the present case was far from overwhelming. The conviction of the defendant was predicated on evidence that was to a large extent dependent on the complainant’s credibility, namely, her in-court testimony, her out-of-court hearsay statements admitted through constancy of accusation witnesses, and her physical reactions that served to display her emotions in front of others. In addition, there was consciousness of guilt evidence and inconclusive forensic testimony. This evidence, while sufficient to convict the defendant, did not reach the level of overwhelming evidence necessary to make the Doyle violations harmless beyond a reasonable doubt.
Nevertheless, the majority opinion, to support its determination of harmless error, uses an inappropriate standard. In doing so, the opinion continues the “remarkable dilution” of the standards for determining harmless error I noted in my dissent in State v. Canty, supra, 223 Conn. 729, by relying on the fact that there was “significant” evidence of the defendant’s *227guilt, and that the state’s evidence “persuasively established the guilt of the defendant beyond a reasonable doubt.” As I noted in Canty, the standard applied by this court in the past; see id., 729 (lists Connecticut cases); and, more importantly, by the federal courts; United States v. Hasting, 461 U.S. 499, 512, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983); United States v. Dixon, 593 F.2d 626, 629 (5th Cir.), cert. denied, 444 U.S. 861, 100 S. Ct. 126, 62 L. Ed. 2d 82 (1979); is that constitutional error is harmless only if the state has presented “overwhelming evidence of guilt”—not significant evidence of guilt, nor evidence persuasively establishing guilt beyond a reasonable doubt. If in the first instance the state failed to reach the level of proof beyond a reasonable doubt, that would put the entire case to rest in favor of the defendant without any need for this court to analyze the effect of the Doyle violations on the verdict.
The state did not present overwhelming evidence of guilt in this case. The majority opinion relies on the following evidence. First, it relies on the complainant’s own testimony and her consistent out-of-court statements. In this regard, I find it astonishing that the majority merely mentions in a footnote that the jury acquitted the defendant of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), and its lesser included offenses of kidnapping in the second degree in violation of General Statutes § 53a-94, and unlawful restraint in the second degree in violation of General Statutes § 53a-96.4 Because of the jury’s *228acquittal of the defendant on these charges, the majority’s reliance on certain “facts,” supported solely by the complainant’s uncorroborated testimony, is unwarranted. Accordingly, the following testimony of the complainant should not be considered to bolster the state’s case: the defendant forcibly took control of his sister’s car; ignored the complainant’s directions; told the complainant that she “wasn’t going anywhere”; struck her in the face; grabbed her neck and forced her head under the dashboard repeatedly; warned her to keep her head down and not look where they were going; continually threatened her with physical harm; and told her that the only way she could escape was to jump out of a vehicle moving in excess of sixty miles per hour. If the jury found that testimony to be credible, it would not have acquitted the defendant of kidnapping and unlawful restraint.5
Nevertheless, it should be clear that the uncorroborated testimony of a complainant cannot constitute overwhelming evidence of guilt. Accordingly, the majority relies on certain evidence that they claim corroborates the complainant’s story. In my opinion, none of the nonforensic evidence relied on by the majority— the defendant’s false statements while being interrogated by the police, Murray’s testimony that the defendant wanted to “get laid,” the testimony of the defendant’s sister that the defendant admitted hitting the complainant,6 and the testimony that the com*229plainant exhibited emotional trauma after the alleged assault—serve to so corroborate the complainant’s testimony as to constitute overwhelming evidence of guilt.
I am mystified by the majority’s emphasis on the complainant’s accurate description of the vehicle that she and the defendant traveled in to the police, and other facts that merely serve to support the inference that the complainant was with the defendant. As previously noted, the defendant never attempted to controvert at trial, through cross-examination of witnesses or in summation, the fact that the defendant had driven with the complainant in the vehicle. Furthermore, the majority opinion is misleading to the extent that it relies on the fact, in support of a conviction for sexual assault, that the complainant accurately described a “distinctive tattoo” on the defendant’s chest. The uncontroverted testimony at trial was that when Murray, Anderson, the defendant and the complainant were drinking together in Murray’s apartment, the defendant opened his shirt to show off his tattoo. I am deeply troubled that the majority fails to indicate that the uncontroverted basis for the complainant’s knowledge of the defendant’s tattoo was not a sexual encounter.
As for the forensic evidence, although the majority repeatedly indicates that the physical condition of the complainant following the assault was “consistent” with sexual assault, the forensic evidence was inconclusive and in many respects supported the defendant. A police search of the defendant’s sister’s car yielded no traces of semen or blood, and hair samples from the car had no evidentiary value, as they did not match the defendant’s hair, and were never matched with the complainant’s hair. No hair samples taken from the rape kit matched the defendant’s hair. State police forensic laboratory analysis of the bodily fluids of the defendant and seminal fluid found within the complainant could only identify the defendant as within a *230group of approximately 20 percent of the population that could have contributed the seminal fluid.
The state called Carla Williams, a resident physician specalizing in gynecology at the Yale-New Haven Hospital, who treated and physically examined the complainant approximately five hours after the incident. The only evidence that could remotely support a recent forcible sexual assault revealed by her examination was the finding that the complainant’s uterus and one of her ovaries were “slightly tender.” Williams testified, however, that such tenderness is not uncommon and could have many causes unrelated to sexual conduct. She also testified that the complainant had bruises and that she believed them to be recent.
Thomas Hanson, a physician called by the defendant who was Williams’ teaching and supervising physician, testified that the medical reports prepared by Williams did not corroborate the complainant’s allegations. He pointed out the following evidence: Williams had found no evidence of internal or external trauma to the complainant’s genitalia, which he would have expected to find based on the her description of the assault; Williams’ finding of a slightly tender uterus could have many causes, most not directly related to sexual activity; and photographs of her bruises taken five hours after the incident showed a brownish-yellow color, indicating in Hanson’s opinion that the bruises had been inflicted two to three days before the incident. Indeed, Williams, Hanson’s student, admitted that she did not have the expertise or experience to determine, based on the color of the bruises, whether they were recent, other than her opinion that they were less than twenty-four to forty-eight hours old.71 find it interesting that *231the majority places reliance on the bruises of the complainant, but fails to disclose that she admitted, as previously indicated, that Murray, her boyfriend, or very recently ex-boyfriend, had physically battered her in the past.
The final piece of “evidence” that the majority relies on in finding harmless error is its claim that since the complainant traveled a long distance and voluntarily testified, she must have been telling the truth. This is perhaps the ultimate “bootstrap” argument—the complainant testified, therefore, she must have been telling the truth!
The majority also claims that the Doyle violations in the present case were “marginal in the context of the entire trial.” The Doyle violations in this case were not isolated and had great potential to prejudice the defendant because of the context in which they were raised. Two different police detectives testified on different days late in the trial that the defendant had asserted both his right to remain silent, and his right to consult with an attorney. The statements were admitted in conjunction with testimony regarding the defendant’s refusal to consent to a warrantless search of his body and production of blood, saliva and hair samples, testimonial evidence that itself was unquestionably prejudicial. More importantly, the testimony indicated that the defendant claimed his constitutional rights immediately prior to and subsequent to his false statements that he had an alibi and did not know the complainant. Furthermore, the detectives both testified that, shortly after the defendant invoked his constitutional rights, they arrested him for sexual assault in the first degree.
Therefore, the jury was not presented with an abstract assertion of constitutional rights by the defendant, but an assertion of rights by a defendant contemporaneous to his refusal to allow a search of his body *232for evidence of the crime, in the same conversation in which the defendant made two false statements, and immediately prior to the decision to arrest. Indeed, the majority places emphasis on the defendant’s false statements, just as the prosecutor did in closing argument, stating that they represented “significant evidence of consciousness of guilt” and render his sole theory of defense “wholly conjectural.”
I am unable to accept that it is harmless for the jury to learn that the defendant claimed his constitutional rights to silence and assistance of counsel immediately before and after uttering inculpatory falsehoods that, according to the majority, were significant evidence that indicate his consciousness of guilt. It seems far more likely to me that the jury would have relied on the entire conversation as indicative of consciousness of guilt, including the defendant’s invocations of constitutional rights. Under these circumstances, there is at least a reasonable possibility that the jury determined that the ordinarily “insolubly ambiguous” evidence of silence pointed inextricably to the defendant’s guilt.
Furthermore, the Doyle violations in the present case were particularly harmful because the defendant chose to exercise his constitutional right to remain silent at trial, and did not testify. The admission of the Doyle statements could only intensify jury speculation as to the reason why the defendant chose to exercise his constitutional rights both at the time of arrest and at the time of trial.
This court has repeatedly stated that “comment upon the silence of the accused as a prosecutorial technique is often a crooked knife, and one likely to turn in the prosecutor’s hand. The infusion of harmlessness into error must be the exception, applicable in circumstances few and discrete, and to be sparingly employed. State v. Zeko, 177 Conn. 545, 558, 418 A.2d 917 (1979).” *233(Internal quotation marks omitted.) State v. Morrill, supra, 197 Conn. 539. Unfortunately, the recent jurisprudence of this court; see State v. Canty, supra, 223 Conn. 703; is strong evidence that, today, the infusion of harmlessness into error is the rule, not the exception. Indeed, the manner in which the Doyle issue was raised below truly highlights the injustice done by the majority opinion in the present case.
The defendant and the state clashed over the admission of the evidence of the defendant’s exercise of his constitutional rights on three separate occasions. First, the defendant, the state, and the trial court were placed on notice at the suppression hearing that Milewski and Shanley would testify as to the defendant’s invocations of his constitutional rights, and the defendant objected at that time, well before trial, to this testimony. The trial court expressly noted that the issue raised was independent of the issues argued in the suppression hearing, and instructed the defendant to file a motion in limine challenging the evidence. The defendant filed the motion, but when it was argued one week later, the state represented to the trial court that the issue had already been argued and decided at the suppression hearing. The trial court, Flanagan, J., denied the motion, stating that it agreed with the state that it had already decided the issue. The defendant took exception and, prior to the testimony of Milewski and Shan-ley before the jury, the defendant filed a second motion in limine on the same grounds. Again, the state represented that the issue already had been litigated, but the trial court, Ripley, J., expressed some concern: “With respect to the court’s ruling did that include the totality of the colloquy between the defendant and the detective including these statements?” The state responded: “He made his ruling based on . . . exhaustive argument, nitpicking and discussions and case analogies, et cetera.” The trial court then denied the motion *234“on the basis that it would be consistent with Judge Flanagan’s ruling.” Therefore, the Doyle violations in this case were not inadvertently introduced into evidence through nonresponsive testimony, but were solicited by the state over the defendant’s repeated objection.
It may well be that the manner in which the state and the trial court allowed the Doyle violations to occur is somewhat irrelevant to the harmlessness inquiry because it is outside the jury’s knowledge.8 Yet, this court is not merely an instrumentality of the federal system, designated to mechanically apply rules of federal law. To the contrary, this court has the authority and duty to utilize its supervisory authority to maintain the integrity of Connecticut’s system of justice. “[A] reviewing court in applying the harmless error rule should not focus upon the propriety of the outcome of the trial. Instead, an appellate court should be concerned with the integrity of the process leading to the conviction. Consequently, the court should . . . determine whether declaring the error harmless would encourage the State to repeat it with impunity.” Harris v. State, 790 S.W.2d 568, 587 (Tex. App. 1989). On the basis of the state’s conduct in this case, I would reverse the defendant’s conviction even if it did prove harmlessness beyond a reasonable doubt.
*235Today’s decision undermines the requirement that the state prove, beyond a reasonable doubt, that an error of constitutional magnitude is harmless. As long as the defendant exercises his or her constitutional right not to testify, and there is sufficient evidence to support a finding of guilt, there will be no appellate consequences to any but the most egregious constitutional violations. The only remaining barriers to the utilization of such evidence will be the vigilance of trial courts and the prosecutor’s own conscience.
I respectfully dissent.9
As Justice Shea pointed out in State v. Morrill, 197 Conn. 507, 498 A.2d 76 (1985), the Doyle principle has its roots firmly embedded in the common law of Connecticut. “Where . . . the accused is in custody, our law accords him the right to reply to question or statement, or to remain silent. His silence under such circumstances cannot be laid in evidence against him. State v. Ferrone, [97 Conn. 258, 266, 116 A. 336 (1922)]; 3 Wharton, [Criminal Evidence (13th Ed.)] § 703.” (Internal quotation marks omitted.) State v. Morrill, supra, 535. Indeed, in State v. Leecan, 198 Conn. 517, 526, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986), this court held that postarrest silence, even in the absence of Miranda warnings, is inadmissible as a matter of a nonconstitutional state common law rule of evidence. The court noted that such silence had been held to not offend the due process clause of the federal constitution. Id., 524-25, citing Fletcher v. Weir, 455 U.S. 603, 102 S. Ct. 1309, 71 L. Ed. 2d 490 (1982).
The defendant stated in his summation to the jury: “You saw [Murray] testify. He kind of lost his cool a couple of times the first day. Then, he was pretty much under control after that in front of you.”
Despite the claim in footnote 15 of the majority opinion to the contrary, it simply was never disputed that the defendant and the complainant drank together at Murray’s apartment and then drove off together for the stated purpose of getting liquor. For example, on cross-examination of Murray, the defendant asked a series of questions, the purpose of which was to establish that the complainant initiated the trip in the defendant’s car after the defendant had flirted with her.
“Q. I think you testified that during the time that you were in the house drinking, [the defendant] was coming on to [the complainant], is that right?
“A. Correct.
“Q. You actually saw this?
“A. Yes.
“Q. So, we are all out of booze at about one o’clock in the morning, is that right?
“A. Yes.
“Q. [The complainant] suggests an after-hours place?
“A. Yes.
“Q. She knew where the place was?
“A. Yes. . . .
“Q. Kristen had some money?
“A. Yes.
“Q. She gave the money to [the defendant]?
“A. To [the defendant].
“Q. [The complainant] was going to get the booze with [the defendant]?
“A. Yes.
“Q. [The defendant] is the only one who had a car.
“A. Yes.
“Q. It is now one o’clock in the morning, and she is going to get some more booze for you guys to drink that night?
“A. Yes.
“Q. So the party could continue?
*225“A. Yes.
“Q. You expected them to be gone for about ten minutes?
“A. Yes.
“Q. You and Kristen stayed in the apartment?
“A. Yes.
“Q. You waited for them to come back?
“A. Yes.
“Q. They didn’t come back in ten minutes, did they?
“Q. No. . . .
“Q. She came back around five hours later?
“A. Yes.”
The defendant conducted a similar cross-examination of Kristen Anderson, obtaining from her testimony that the complainant, the defendant, Murray and she drank together; they ran out of liquor; the complainant stated that she knew a place where they could get liquor, and the defendant left with the complainant in the defendant’s automobile. At no point in the cross-examination of any witness did the defendant attempt to dispute that he and the complainant drank together at Murray’s apartment and then left in the defendant’s car together.
Furthermore, despite the use of the pronoun “she” referred to by the majority, a fair reading of the defendant’s summation reveals that the defendant never disputed these facts in the summation, either. For the majority to latch on to the pronoun “she” in order to transform the defendant’s summation into a defense that the defendant did not leave the apartment with the complainant is outrageous in light of the uncontroverted testimony of the complainant, Murray and Anderson that the defendant and the complainant left the apartment together in order to obtain liquor from an after-hours establishment.
General Statutes § 53a-92 provides in relevant part: “(a) A person is guilty of kidnapping in the first degree when he abducts another person and ... (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually . . . .”
General Statutes § 53a-94 (a) provides: “A person is guilty of kidnapping in the second degree when he abducts another person.”
General Statutes § 53a-96 (a) provides: “A person is guilty of unlawful restraint in the second degree when he restrains another person.”
Furthermore, the defendant presented the testimony of the complainant’s landlord, who testified that in his opinion the complainant was not a truthful person. The state presented no witnesses to rebut this character evidence.
The defendant’s sister, Sharon Phaneuf, also testified that in the conversation in which the defendant had admitted hitting the complainant, she had told him that he “fucked up,” and he had responded, “yes, [I] did.” The effect of this evidence on the jury must be viewed in the context of Phanuef’s subsequent testimony that, with her question “you fucked up,” she was referring in part to an unrelated personal dispute between her brother and she.
Williams testified with regard to the progression of colors typically found in bruises: “I never personally studied that. I can’t tell you the progression of a bruise. I can only say what I have seen in the past. Again, I am in obstetrics and gynecology. I am not an emergency room doctor. I am not qualified to give the progression of bruises . . . .”
Of course, the manner in which an objection is raised and overruled is not wholly irrelevant to harmlessness. First, the existence of a curative instruction can lessen the harmfulness of error. See Bass v. Nix, 909 F.2d 297, 305 (8th Cir. 1990); State v. Negron, 221 Conn. 315, 331, 603 A.2d 1138 (1992) (because Doyle violation “was solitary, was not pursued and was the subject of a curative instruction, we conclude that the inadvertent admission into evidence of that single answer . . . was harmless”). Because the trial court in the present case held that the testimony was admissible, there was, of course, no curative instruction.
Second, a failure to object has been held relevant to the harmfulness inquiry. “[T]rial counsel’s failure to object to the question . . . indicates that he did not consider this portion of the [testimony] to have prejudiced the defendant.” State v. Canty, supra, 223 Conn. 712.
Because I would order a new trial, I would not reach the Brady issue resolved in the majority opinion. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).