State v. Alexander

FOTI, J.,

dissenting. I must respectfully disagree with the majority opinion that the prosecutor (1) impermissi-bly infringed on the defendant’s constitutional right to be present during trial and (2) committed prosecutorial misconduct during her closing and rebuttal arguments, thereby depriving the defendant of a fair trial.

I

I agree that the defendant is entitled to Golding review of his unpreserved constitutional claim that comments made by the prosecutor during her closing and rebuttal arguments impermissibly infringed on his right to be present during trial. I do not agree, however, that a constitutional violation clearly exists and clearly deprived the defendant of a fair trial, or that the state has failed to prove harmlessness beyond a reasonable doubt. See State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

In this case, the defendant claims that the following comments by the prosecutor infringed on his right to be present at trial: “Who is best able to fabricate a complicated story designed to sway a jury? Your final decision must ultimately be based on whom you believe, the victim ... or the defendant .... Now, you may recall that all the witnesses were sequestered. And, that *261was so they couldn’t hear what the other witnesses were saying so they couldn’t tailor their testimony to each other’s testimony. So that they couldn’t contradict each other. But there was one witness who wasn’t sequestered. There was one witness who heard everything. And, that was [the defendant], who has a built-in bias in the outcome of this case by virtue of the fact that, he’s the defendant. . . . When you consider the credibility of the defendant’s testimony, keep in mind that of all the witnesses here, he’s the most obviously biased and interested one. He’s the one who has the motive to distort the truth and fabricate the story. Think about it.” I do not agree with the majority that these comments “linked the defendant’s presence at trial with his guilt” and amounted to a constitutional violation “of the same magnitude as that in Cassidy, Shinn and Agard.”

In State v. Cassidy, 236 Conn. 112, 672 A.2d 899, cert. denied, 519 U.S. 910, 117 S. Ct. 273, 136 L. Ed. 2d 196 (1996), our Supreme Court considered a defendant’s preserved claim1 that remarks made by the prosecutor during closing rebuttal argument infringed on his rights to be present at trial and to confront the witnesses against him. The court stated that “[i]nviting the fact finder to draw an inference adverse to a defendant solely on account of the defendant’s assertion of a constitutional right impermissibly burdens the free exercise of that right and, therefore, may not be tolerated.” (Emphasis added.) Id., 127.

In Agard v. Portuondo, 117 F.3d 696 (2d Cir. 1997), the United States Court of Appeals for the Second Circuit considered a claim similar to that considered by our *262Supreme Court in Cassidy.2 The court concluded that the prosecutor’s summation remarks violated the defendant’s sixth amendment right to confrontation. Id., 712. The court stated that “[l]awyers may not raise innuendo relating to bias or credibility from the shadows of unlitigated facts for the first time in their closing arguments. Such tactics prevent rebuttal and cross-examination, which are the engines of the truth-finding process in an adversarial criminal trial. Without facts in evidence to support an inference of fabrication, such remarks are prejudicial and not at all probative.” (Emphasis added.) Id., 711. The court noted, however, that aprosecutor is “free ... to point out that [a defendant] has motive to lie in order to escape incarceration . . . and to remark upon that motive in summation . . . .’’Id.

In State v. Shinn, 47 Conn. App. 401, 408, 704 A.2d 816 (1997), cert. denied, 244 Conn. 913, 914, 713 A.2d 832, 833 (1998), we considered a defendant’s unpreserved claim that “the state’s closing argument to the jury impermissibly burdened his constitutional right to testify in his own behalf.” We concluded that the prosecutor’s statements directly linking the defendant’s decision to testify with his guilt were improper and resulted in a denial of the defendant’s due process rights. Id., 414. We emphasized, however, that the case did not involve “a comment of a prosecutor that relates to the credibility of a defendant who takes the stand to testify in his or her own behalf. Rather, [the] case concerned] a comment that relates to the fact that a defendant chose to exercise the constitutional right to testify, not to the content of that testimony.” (Emphasis in original.) Id., 409-10.

*263In this case, the focus of the prosecutor’s summation to the jury was the relative credibility of the defendant and the victim. In challenging the defendant’s credibility, the prosecutor referred to a multitude of factors, including (1) the defendant’s status as a sophisticated adult who is in a better position than the minor victim to “fabricate a complicated story designed to sway a jury,” (2) the contradictions in the testimony of the defendant and the victim’s mother, (3) the defendant’s demeanor while testifying, (4) the defendant’s statements under oath in a prior court proceeding and (5) the defendant’s interest in the outcome of the case. The prosecutor, therefore, did not invite the jury to draw an inference that the defendant fabricated his trial testimony solely because he exercised his constitutional right to confront the witnesses against him. See State v. Carter, 47 Conn. App. 632, 644, 708 A.2d 213, cert. denied, 244 Conn. 909, 713 A.2d 828 (1998); compare State v. Cassidy, supra, 236 Conn. 127.

In addition, the prosecutor referred to facts in evidence to support an inference that the defendant fabricated his trial testimony—specifically, the contradictions in the testimony of the defendant and the victim’s mother regarding whether the defendant had ever entered the victim’s bedroom, and the defendant’s prior inconsistent statements regarding his address. This type of argument has been approved both by our Supreme Court in Cassidy and by the Second Circuit in Agard.

Finally, the prosecutor’s remarks in this case are unlike those considered by this court in Shinn. Here, all of the remarks challenged by the defendant relate to the credibility of his testimony and do not directly link his presence at trial with his guilt. Compare State v. Shinn, supra, 47 Conn. App. 414.

“It is well established that once an accused takes the stand and testifies his credibility is subject to scrutiny *264and close examination. State v. Carter, 189 Conn. 631, 640, 458 A.2d 379 (1983). A defendant cannot both take the stand and be immune from impeachment. . . . An accused who testifies subjects himself to the same rules and tests which could by law be applied to other witnesses. State v. Palozie, 165 Conn. 288, 298, 334 A.2d 468 (1973).” State v. McClendon, 199 Conn. 5, 12, 505 A.2d 685 (1986).

The prosecutor’s comments during summation properly challenged the defendant’s credibility by reference to the evidence adduced at trial. Moreover, unlike in Cassidy, the prosecutor’s comments did not invite the jury to draw an inference adverse to the defendant solely on account of the defendant’s assertion of his constitutional right to confront the witnesses against him. I would conclude, therefore, that the defendant has failed to demonstrate that a constitutional violation clearly exists and clearly deprived him of a fair trial.

Even if I were to conclude that the prosecutor’s summation remarks were improper, I would not grant the defendant a new trial because the state has established that the remarks were harmless beyond a reasonable doubt. See State v. Carter, supra, 47 Conn. App. 647.

“In State v. Cassidy, supra, 236 Conn. 131-32, the court based its decision that the prosecutor’s remarks were not harmless on the fact that (1) the state’s case rested entirely on the uncorroborated testimony of the victim, (2) the relative credibility of the defendant and the victim was critical to the jury’s resolution of the case, (3) there was no independent evidence of the crimes to assist the jury in that determination, and (4) the trial court failed to give a curative instruction as requested by the defendant.” State v. Carter, supra, 47 Conn. App. 647-48.

Although the relative credibility of the defendant and the victim was important to the jury’s resolution of *265the case, the state’s case did not rest entirely on the uncorroborated testimony of the victim. Rather, the state called five constancy of accusation witnesses to support the victim’s testimony. In addition, the state adduced testimony from three expert witnesses. Furthermore, unlike in Cassidy, the defendant did not seek a curative instruction at the conclusion of closing argument. See State v. Oehman, 212 Conn. 325, 338, 562 A.2d 493 (1989) (conclusion that prosecutor’s comments did not result in prejudice to defendant sufficient to warrant reversal of conviction buttressed by defendant’s failure to object to portions of prosecutor’s summation complained of on appeal).

Finally, in Cassidy, the court’s decision “was based, in part, on the fact that the comments by the prosecutor were misleading to the jury because ‘it [was] by no means certain that the jurors were . . . aware of the fact that the other trial witnesses were not permitted in the courtroom when not testifying’ due to the existence of a sequestration order.” State v. Carter, supra, 47 Conn. App. 643. The court stated that “[t]his information . . . would have at least placed the prosecutor’s comments in a fairer, more complete, context.” State v. Cassidy, supra, 236 Conn. 124. In this case, the prosecutor, during summation, clearly and unambiguously stated that, “all the witnesses were sequestered.”

I would conclude that the allegedly improper comments made by the prosecutor were harmless beyond a reasonable doubt.

II

The majority concludes that the defendant was denied a fair trial in violation of his federal and state constitutional rights to due process of law because the prosecutor, during her summation, improperly (1) rendered her opinion on the credibility of the victim’s testimony, (2) made reference to facts not in evidence and (3) appealed to the emotions of the jurors. I disagree.

*266During her rebuttal argument, the prosecutor commented that the victim has no motive to lie, that she told the truth, and that the jurors “should depend on her word.” In addition, the prosecutor offered her opinion as to the lack of physical evidence in the case and characterized the victims of child sexual abuse as “small, weak, naive, inarticulate and powerless.” Following the state’s rebuttal argument, the defendant requested a mistrial, a curative instruction to the juiy and an opportunity to rebut orally the prosecutor’s statements. The trial court denied the defendant’s requests. The trial court also denied the defendant’s motion for a new trial.

“In determining whether a prosecutor’s conduct was so egregious as to deny a defendant a fair trial, we note that some leeway must be afforded to the advocates in offering arguments to the jury in final argument. [I]n addressing the jury, [cjounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . [W]e must review the comments complained of in the context of the entire trial. . . . State v. Villanueva, 44 Conn. App. 457, 461-62, 689 A.2d 1141 [cert. denied, 240 Conn. 930, 693 A.2d 302] (1997).” (Internal quotation marks omitted.) State v. Abdalaziz, 45 Conn. App. 591, 605, 696 A.2d 1310, cert. granted on other grounds, 243 Conn. 902, 701 A.2d 334 (1997). “We look to the propriety of the challenged remark and, if the statement was improper, to whether it caused substantial prejudice to the defendant. Statev. Oehman, [supra, 212 Conn. 336].” State v. Santiago, 45 Conn. App. 297, 303, 696 A.2d 344, cert. denied, 241 Conn. 927, 697 A.2d 362 (1997).

Because the trial court denied the defendant’s requests for a mistrial, a curative instruction to the jury and an opportunity to rebut orally the prosecutor’s statements, as well as his motion for a new trial, it may *267be assumed that the trial court did not consider the remarks to rise to the level of “prosecutorial misconduct.” “When a verdict is challenged on the basis of the prosecutor’s allegedly prejudicial remarks, the defendant bears the burden of proving the remarks prejudicial in light of the whole trial. State v. Floyd, 10 Conn. App. 361, 364, 523 A.2d 1323, cert. denied, 203 Conn. 809, 525 A.2d 523, cert. denied, 484 U.S. 859, 108 S. Ct. 172, 98 L. Ed. 2d 126 (1987). The trial court’s ruling is entitled to weight because of the vantage point from which it can observe and evaluate the circumstances of the trial. The trial court is in a better position to determine the propriety of the remarks of counsel and whether or not they are harmful. State v. Glenn, 194 Conn. 483, 493, 481 A.2d 741 (1984).” (Internal quotation marks omitted.) State v. Pouncey, 40 Conn. App. 624, 635, 673 A.2d 547 (1996), aff'd, 241 Conn. 802, 699 A.2d 901 (1997). “Moreover, we will not disturb the trial court’s mistrial ruling unless the challenged remarks have so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . State v. Castonguay, 218 Conn. 486, 508, 590 A.2d 901 (1991).” (Internal quotation marks omitted.) State v. Pouncey, supra, 634-35.

My review of the record reveals that the alleged misconduct was neither intentional nor flagrant and did not rise to the level of substantial prejudice that justifies reversal. The prosecutor’s comments were relatively brief, confined to rebuttal argument and not part of a pattern of misconduct. Further, the trial court instructed the jury that the arguments and statements of counsel during summation were not evidence and that it was the jurors’ recollection of the evidence that should have weight in their deliberations, rather than what counsel said in final argument.

I would conclude that none of the defendant’s claims of prosecutorial misconduct justifies reversal of the *268defendant’s conviction. The effect of the prosecutor’s comments cannot be said to have affected the outcome of the trial or to have so infected the trial with unfairness as to make the defendant’s resulting conviction a denial of due process. If the defendant suffered any prejudice it was minimal, and the sanction of reversal is inappropriate.

I would affirm the judgment of the trial court and, therefore, respectfully dissent.

“At the conclusion of closing arguments, the defendant moved for a mistrial or, in the alternative, for a curative instruction to the jury. [State v. Cassidy, supra, 236 Conn. 122].” State v. Carter, 47 Conn. App. 632, 643, 708 A.2d 213, cert. denied, 244 Conn. 909, 713 A.2d 828 (1998).

As in Cassidy, Aga/rd involved a preserved constitutional claim. Following the prosecutor’s summation, defense counsel moved for a mistrial stating that “[i]t is improper to malee comments to the jury that [it] should not believe [the defendant] due to his exercise of his constitutional rights to be present at his trial.” (Internal quotation marks omitted.) Agard v. Portuondo, supra, 117 F.3d 707.