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State v. Diaz
STATE OF CONNECTICUT v. GONZALO DIAZ
(SC 20720)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Ecker, Alexander and Dannehy, Js.
Syllabus
Convicted of the crimes of felony murder, burglary in the first degree,
conspiracy to commit burglary in the first degree, attempt to commit
robbery in the first degree, and criminal possession of a firearm in
connection with the shooting death of the victim, the defendant appealed
to this court. At trial, one of the defendant’s accomplices, D, testified
pursuant to a cooperation agreement with the state. D testified that, on
the night of the murder, she had driven her boyfriend, J, and J’s friend,
who allegedly was the defendant and went by the name ‘‘E,’’ to the
victim’s house to buy drugs. Once they arrived, J informed D that they
were going to rob the victim. D and E approached the house while J
waited across the street. When the victim opened the door, E drew a
gun and barged into the victim’s house. D was scared and ran back to
the car, where she met J. According to D, she heard a gunshot as she
fled. The defendant testified in his own defense. Although he admitted
that he went to the victim’s house with J and D to buy drugs, he testified
that he stayed near the car while J and D approached the house and
that, after ten to fifteen minutes, he heard a gunshot. According to the
defendant, J handed D a gun when J reentered the car. While cross-
examining the defendant, the prosecutor indicated that a video recording
of the defendant’s interviews with the police, in which the defendant
made certain statements that were inconsistent with his trial testimony,
would be played at a later point in the trial. The video recordings,
however, ultimately were not offered into evidence. During rebuttal
argument, the prosecutor remarked on D’s credibility, stating that either
D or the defendant was ‘‘completely wrong’’ because their testimony
was not consistent. The prosecutor also made remarks regarding the
fact that the defendant, during his testimony, did not express outrage
toward others who had implicated him or who had testified against him,
and then proceeded to ask the jurors how they would feel if they were
being accused of the crimes for which the defendant was being tried.
The trial court issued a general credibility instruction that was applicable
to all of the witnesses, an instruction applicable to accomplices that
named D by name, and an instruction concerning the defendant’s testi-
mony in particular. The court specifically instructed the jurors to assess
the defendant’s credibility in the same manner as that of other witnesses
and that they could consider ‘‘his interest in the verdict’’ in assessing
his credibility. On appeal, the defendant claimed, for the first time, that
the trial court had committed plain error by instructing the jury that it
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State v. Diaz
could consider the defendant’s interest in the outcome of the trial and
that the prosecutor had made certain improper remarks during his cross-
examination of the defendant and during rebuttal argument. Held:
1. The defendant could not prevail on his claim that the trial court had
committed plain error by instructing the jury that it could consider his
interest in the outcome of the trial in assessing the credibility of his
trial testimony:
In State v. Medrano (308 Conn. 604), this court exercised its supervisory
authority over the administration of justice and directed trial courts to
refrain from instructing the jury that, when a defendant testifies, it may
specifically consider the defendant’s interest in the outcome of the case
and the importance to him of the outcome of the trial, and, although
this court agreed, and the state conceded, that the trial court’s instruction
in the present case violated the directive in Medrano in an obvious and
readily discernible manner, the defendant failed to demonstrate that the
erroneous instruction resulted in manifest injustice.
The fact that a trial court’s jury instruction, by commission or omission,
fails to comply with a supervisory rule does not, in and of itself, establish
the existence of manifest injustice necessary for plain error, and, instead,
the defendant must establish that the evidence adduced at trial, the
disputed factual issues before the jury, and the instructions as a whole
gave rise to the danger of juror misunderstanding or confusion that
prompted the court to adopt the rule that the trial court failed to
implement.
In the present case, although the trial court included a sentence that
improperly made a specific reference to the defendant’s interest in the
outcome of the trial, the erroneous instruction was brief and immediately
preceded and followed by qualifying language, which the defendant did
not challenge on appeal and which required the jury to evaluate the
defendant’s testimony as it would the testimony of any other witness,
and, viewing the jury charge in its entirety, this court concluded that
the erroneous instruction did not mislead the jury.
Moreover, this court could not conclude that the erroneous jury instruc-
tion so affected the fairness and integrity of, and public confidence in,
the judicial proceedings so as to require reversal of the judgment, as the
jury was free to infer from the evidence presented at trial, including the
defendant’s admission that he traveled with J and D to the victim’s home
to purchase drugs from a known drug house and evidence that he was
in that area at the time the victim was killed, that the defendant was a
ready and willing participant in the criminal activity that resulted in the
victim’s death, and also to infer that the defendant’s behavior following
the crimes, particularly changing his cell phone number and lying to the
police, was inconsistent with innocence and indicative of consciousness
of guilt.
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State v. Diaz
There was no merit to the defendant’s contention that the erroneous
instruction likely misled the jury by placing the defendant on equal
footing with D for purposes of the jury’s credibility determination, the
trial court’s instructions having carefully distinguished between the spe-
cial credibility rules governing the testimony of an accomplice and the
general credibility rules governing the testimony of all other witnesses
who might have an interest in the outcome of the case, including the
defendant, and the trial court explicitly informed the jury that the defen-
dant’s testimony should be assessed in accordance with its general credi-
bility instruction governing the testimony of all other witnesses, whereas
D’s testimony was governed by the special credibility instruction unique
to the testimony of accomplices.
2. There was no merit to the defendant’s claim that the prosecutor had
engaged in certain improprieties during his cross-examination of the
defendant and during rebuttal argument because none of the prosecu-
tor’s remarks was improper:
a. The prosecutor did not improperly comment on D’s credibility, during
rebuttal argument, when he stated that either D or the defendant must
be ‘‘wrong’’:
Contrary to the defendant’s argument that the prosecutor’s comment
improperly implied that the jury could not find the defendant not guilty
unless it found that D had lied, the prosecutor’s isolated remark did not
make a direct connection between the defendant’s guilt and D’s credibil-
ity or misrepresent the state’s burden of proof.
Moreover, because D only identified her accomplices as J and E, and
never identified the defendant as E, the jury was not required to find that
D had lied in order to find the defendant not guilty of the charged crimes.
b. The prosecutor did not make an improper golden rule argument when,
during rebuttal argument, he commented on the defendant’s lack of
outrage toward his accusers and asked the jurors how they would feel
if they had been accused of the crimes for which the defendant was
on trial:
The prosecutor’s observation about the defendant’s lack of outrage and
his question to the jurors did not appeal to the jurors’ passions or emo-
tions but, instead, asked the jurors to use their common sense and
experience to infer that an innocent person accused of the crimes charged
would have exhibited some outrage or anger on the witness stand, and
such an argument fell within the permissible bounds of fair comment
on witness credibility.
c. The prosecutor did not argue facts not in evidence during his cross-
examination of the defendant:
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State v. Diaz
Certain questions the prosecutor asked the defendant about threats he
allegedly made to D’s son were not improper because those questions
were designed to test the defendant’s credibility and to rebut, impeach,
modify, or explain the defendant’s direct testimony, and the defendant
did not claim that the prosecutor lacked a good faith basis to ask those
questions or that the questions themselves or the information sought
was inflammatory, inadmissible, unduly prejudicial, or in violation of a
court order.
Moreover, the prosecutor’s comments that allegedly inconsistent state-
ments the defendant made during his video-recorded police interroga-
tions would be played at a later point during the trial did not constitute
improprieties, insofar as the jury was aware of the existence of the
recordings and of the fact that many of the defendant’s statements therein
were inconsistent with his trial testimony, the defendant did not claim
that the inconsistent statements were inadmissible for impeachment
purposes or that the prosecutor lacked a good faith intent to play them
at the time he made the challenged remarks, and the record did not
reflect that the prosecutor’s comments were delivered in a sarcastic,
provocative, or aggressive manner.
Argued November 14, 2023—officially released April 9, 2024
Procedural History
Substitute information charging the defendant with
the crimes of felony murder, manslaughter in the first
degree with a firearm, burglary in the first degree, con-
spiracy to commit burglary in the first degree, attempt
to commit robbery in the first degree, and criminal
possession of a firearm, brought to the Superior Court
in the judicial district of Waterbury, where the charges
of felony murder, manslaughter in the first degree with
a firearm, burglary in the first degree, conspiracy to
commit burglary in the first degree, and attempt to
commit robbery in the first degree were tried to the
jury before Schuman, J.; verdict of guilty of felony
murder, manslaughter in the first degree with a firearm,
burglary in the first degree, conspiracy to commit bur-
glary in the first degree, and attempt to commit robbery
in the first degree; thereafter, the charge of criminal
possession of a firearm was tried to the court; finding
of guilty; subsequently, the court vacated the conviction
as to manslaughter in the first degree with a firearm
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State v. Diaz
and rendered judgment of guilty of felony murder, bur-
glary in the first degree, conspiracy to commit burglary
in the first degree, attempt to commit robbery in the
first degree, and criminal possession of a firearm, from
which the defendant appealed to this court. Affirmed.
Shanna P. Hugle, deputy assistant public defender,
for the appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and Don E. Therkildsen and Amy Sedensky, super-
visory assistant state’s attorneys, for the appellee
(state).
Opinion
ECKER, J. In this direct appeal,1 the defendant, Gon-
zalo Diaz, raises two unpreserved claims challenging
his conviction of felony murder, burglary in the first
degree, conspiracy to commit burglary in the first degree,
attempt to commit robbery in the first degree, and crimi-
nal possession of a firearm. First, he claims that the
trial court committed plain error when it instructed the
jury that it may consider his interest in the outcome of
its verdict when assessing the credibility of his trial
testimony, contrary to our statement in State v. Medrano,
308 Conn. 604, 631, 65 A.3d 503 (2013), that such an
instruction should not be given. Second, he claims that
the prosecutor made improper remarks during cross-
examination and rebuttal argument, in violation of his
due process right to a fair trial. We affirm the trial
court’s judgment.
The jury reasonably could have found the following
facts. The victim, Denise Rogers-Rollins, and her son
sold drugs out of their home on Wall Street in Water-
bury. During the early morning hours of December 7,
2019, the victim was shot and killed in her home. The
1
See General Statutes § 51-199 (b) (3).
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State v. Diaz
police investigation into the victim’s death led to the
questioning of Shavonnah Draper, whose car was spot-
ted parked nearby at the time of the shooting. Draper
initially lied to the police regarding her involvement
in the crimes but later admitted that she drove her
boyfriend, Howard Jefferson, and his friend, E, from
Bridgeport to the victim’s residence on Wall Street in
Waterbury to buy drugs on the night of the shooting.
Pursuant to Jefferson’s instructions, Draper did not
park in front of the victim’s home but, instead, parked
nearby on Shelley Street. When Draper, Jefferson, and
E exited the vehicle, Jefferson informed Draper that
they ‘‘were going to rob the place, and [Draper was going
to be] the one to get the door open.’’ Draper participated
in the planned robbery because she was afraid of Jeffer-
son, who regularly abused her physically.
Draper and E approached the victim’s residence while
Jefferson waited across the street. Draper knocked on
the door, and the victim asked who was there. Draper
answered: ‘‘[I]t’s me.’’ The victim asked Draper if she
had called beforehand, and Draper responded that there
had been ‘‘no answer.’’ When the victim opened the
door, E pulled out ‘‘a dark colored gun’’ and ‘‘bum-rushe[d]
her’’ inside. Scared, Draper ran back to the car, where
she met Jefferson. Draper heard the victim screaming
and the sound of a gunshot as she ran to the car. Draper
entered the driver’s seat of her vehicle, and Jefferson
got into the passenger’s seat. Draper started the car
and turned around to proceed down Shelley Street away
from Wall Street. As she was driving away, Draper saw
E walking down Shelley Street. Jefferson instructed
Draper to pick up E, and Draper complied. After E
entered the car, Jefferson asked E, ‘‘[w]hat the fuck
happened?’’ E replied, ‘‘I don’t know. I don’t know. I
hit her, and [the gun] went off.’’ Draper drove back to
Bridgeport and dropped E off near State Street and
Lee Avenue.
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State v. Diaz
The defendant was interviewed by the police twice,
once on December 20, 2019, and again on January 7,
2020. During his first interview, the defendant identified
himself as E after viewing video surveillance footage
depicting Jefferson and E near Wall Street on the night
of the victim’s death. The defendant subsequently was
arrested and charged in a six count substitute informa-
tion with (1) manslaughter in the first degree with a
firearm in violation of General Statutes § 53a-55a (a),
(2) felony murder in violation of General Statutes § 53a-
54c, (3) burglary in the first degree in violation of Gen-
eral Statutes §§ 53a-8 and 53a-101 (a) (3), (4) conspiracy
to commit burglary in the first degree in violation of
General Statutes §§ 53a-48 and 53a-101 (a) (3), (5)
attempt to commit robbery in the first degree in viola-
tion of General Statutes §§ 53a-49 (a) (2) and 53a-134
(a) (2), and (6) criminal possession of a firearm in
violation of General Statutes § 53a-217 (a) (1). The
defendant elected a jury trial on the first five counts
and a bench trial on the sixth count.
Testifying at trial pursuant to a cooperation agree-
ment, Draper provided a version of events consistent
with the facts set forth in the preceding paragraphs.
She acknowledged that she had been unable to identify
the defendant as E from a photographic array con-
ducted shortly after the incident, and she never identi-
fied the defendant as E at trial.
The defendant testified in his own defense. He admit-
ted that, on the night of the shooting, he traveled from
Bridgeport to Waterbury with Jefferson and Draper to
buy drugs, but he denied any knowledge of, or involve-
ment in, the attempted robbery, burglary, and killing of
the victim. According to the defendant, Draper parked
her car on Shelley Street, and he, Jefferson, and Draper
exited the vehicle. Jefferson informed the defendant
that ‘‘he had to take care of something. He [was] going
to this trap house, [where] he [knew] this lady that lives
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State v. Diaz
there that use[s] drugs . . . and her son sell[s] drugs.’’2
The defendant stayed with the car and smoked a ciga-
rette while Jefferson and Draper went to the trap house
on Wall Street.
The defendant testified that, after waiting by the car
for approximately ten to fifteen minutes, he heard a
gunshot. He walked to the corner of Wall and Shelley
Streets and looked around but did not see anything. He
then walked back to the car, only to discover that it
was locked. The defendant returned to the corner of
Wall and Shelley Streets, where he saw Draper walking
down the street with Jefferson following fifteen to
twenty feet behind her. Draper reached the car and got
into the driver’s seat, and the defendant sat in the back.
Jefferson waved Draper along and kept walking down
Shelley Street in the opposite direction. Draper turned
the car around and drove down Shelley Street, where
she picked up Jefferson. Jefferson entered the front
passenger seat of the vehicle and handed Draper ‘‘a
small, black,’’ semiautomatic gun, which Draper placed
in the center console.
According to the defendant’s testimony, he ‘‘could
see a cop car coming’’ and heard sirens as Draper was
driving away. Although it was ‘‘obvious something [had]
happened,’’ the defendant did not ask Draper and Jeffer-
son what had occurred because he ‘‘didn’t want to be
involved.’’ Draper drove back to Bridgeport, where she
dropped the defendant off near State Street and Lee
Avenue.
The defendant acknowledged that he had changed
his cell phone number approximately one week after
the death of the victim. He said that he did so because
Draper had been arrested, Jefferson had stopped com-
municating with him, and he ‘‘felt like [he] was being
2
The defendant testified that a trap house is ‘‘[a] place that sells drugs.’’
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State v. Diaz
set up.’’ The defendant therefore ‘‘cut [his] ties with [Jef-
ferson].’’
The defendant also admitted that he had lied to the
police multiple times during the two interviews regard-
ing the incident. The defendant initially told the police
that, on the night of the victim’s death, he had traveled
from Bridgeport to Waterbury with ‘‘one of [his] boys’’
and denied going to the Wall Street area. Additionally,
the defendant initially informed the police that, although
he had met up with Jefferson in Waterbury that night,
it was just the two of them, and no one else had joined
them. When the police advised the defendant that they
had video surveillance footage of him in a car with Jeffer-
son and Draper, the defendant admitted that he had
gone back to Bridgeport with Jefferson and Draper
but still denied traveling to Waterbury with them. The
defendant also originally denied going to the Wall Street
area with Jefferson and Draper, informing the police
that the couple had left him ‘‘for [one-half] hour to forty-
five minutes when they went somewhere.’’ Later, the
defendant admitted to the police that he had traveled
to Waterbury with Jefferson and Draper and went with
them to the Wall Street area but denied ever exiting
the car, adamantly stating that he was ‘‘positive’’ that
he ‘‘stayed in the car the whole time . . . .’’ When
informed by the police that there were eyewitnesses
who saw three people exiting Draper’s car on Shelley
Street,3 the defendant changed his story and stated that
he got out of the car on Shelley Street, but only to
smoke a cigarette.
On the basis of the foregoing evidence, the jury found
the defendant guilty of felony murder, manslaughter in
the first degree with a firearm, burglary in the first
3
Although there was an eyewitness who testified that she saw three or
four individuals returning to a gray car parked at the corner of Wall and
Shelley Streets after the shooting, no eyewitness testified regarding who
exited the gray car after it first parked on Shelley Street.
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State v. Diaz
degree, conspiracy to commit burglary in the first
degree, and attempt to commit robbery in the first
degree, while the trial court found him guilty of criminal
possession of a firearm. At sentencing, the trial court
vacated the defendant’s manslaughter conviction but
otherwise rendered judgment in accordance with the
jury’s verdict and the court’s finding.4 The trial court
sentenced the defendant to a total effective sentence
of forty-five years of imprisonment,5 and this direct
appeal followed.
I
The defendant claims that the trial court committed
plain error by instructing the jury that, in assessing the
credibility of his trial testimony, it ‘‘necessarily [could
consider] his interest in the verdict that [it] will [return].’’
The state concedes that this instruction plainly was
erroneous in light of State v. Medrano, supra, 308 Conn.
604, in which we ‘‘exercise[d] . . . our supervisory
authority over the administration of justice . . . [to]
direct our trial courts in the future to refrain from
instructing jurors, when a defendant testifies, that they
may specifically consider the defendant’s interest in the
outcome of the case and the importance to him of
4
With the agreement of the defendant, the state moved to vacate the
defendant’s manslaughter conviction because there was only one homicide,
and it would violate the defendant’s right to be free from double jeopardy
to convict the defendant of both felony murder and manslaughter in the
first degree with a firearm. The trial court granted the state’s motion and
vacated the defendant’s manslaughter conviction without prejudice to rein-
statement if his felony murder conviction is reversed or vacated on appeal.
5
The trial court sentenced the defendant to forty years of imprisonment for
the crime of felony murder and imposed the following concurrent sentences:
twenty years of imprisonment for burglary in the first degree, twenty years
of imprisonment for conspiracy to commit burglary in the first degree, and
twenty years of imprisonment for attempt to commit robbery in the first
degree. Additionally, the trial court sentenced the defendant to five years
of imprisonment for the crime of criminal possession of a firearm, to run
consecutively to the other sentences, for a total effective sentence of forty-
five years of imprisonment.
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State v. Diaz
the outcome of the trial.’’ Id., 631. The state contends,
however, that the defendant’s claim fails under the sec-
ond prong of the plain error test because the defendant
has failed to demonstrate that the erroneous instruction
resulted in manifest injustice. We agree.
The following additional information regarding the
trial court’s jury instructions is relevant to our resolu-
tion of this claim. The trial court instructed the jury as
follows with respect to the defendant’s testimony in
particular: ‘‘In this case, the defendant testified. An
accused person having taken the stand, [he] stands
before you like any other witness. He is entitled to the
same considerations and must have his testimony tested
and measured by you by the same factors and standards
as you would judge the testimony of any other witness.
That necessarily involves consideration of his interest
in the verdict that you will render. Of course, you have
no right to disregard his testimony, or to disbelieve his
testimony, merely because he is accused of a crime.
You will consider my earlier instructions on the general
subject matter of credibility that obviously pertain to
the defendant’s testimony, as well as the testimony of
any other witness.’’6 (Emphasis added.)
In its general instructions on witness credibility, the
trial court informed the jury that, in ascertaining the
facts, ‘‘you must decide which testimony to believe and
which testimony not to believe. You may believe all,
none, or any part of any witness’ testimony. In making
that decision, you may take into account a number of
factors, including the following: (1) Was the witness
able to see, or hear, or know the things about which
that witness testified? (2) How well was the witness
able to recall and describe those things? (3) What was
the witness’ manner while testifying? (4) Did the wit-
6
The defendant challenges only the italicized portion of the trial court’s
jury charge.
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State v. Diaz
ness have an interest in the outcome of this case, or any
bias, or prejudice concerning any party or any manner
involved in the case? (5) How reasonable was the wit-
ness’ testimony considered in light of all the evidence
in the case? And (6) was the witness’ testimony contra-
dicted by what that witness has said, or done, at another
time, or by the testimony of other witnesses, or by other
evidence? Of course, you should use your common
sense and good judgment in applying these factors.’’
This instruction continued: ‘‘In deciding whether or
not to believe a witness, keep in mind that people some-
times forget things. You need to consider, therefore,
whether a contradiction is an innocent lapse of memory
or an intentional falsehood, and that may depend on
whether it has to do with an important fact or with
only a small detail. Remember, also, that it is not uncom-
mon for two honest people to witness the same event
yet perceive or recall things differently. If you should
think that a witness has deliberately testified falsely in
some respect, you should carefully consider whether
you should . . . rely [on] any or all of the remainder
of his or her testimony. These are some of the factors
you may consider in whether to believe testimony.’’
The trial court also instructed the jury regarding the
law governing certain specified categories of witnesses,
including police officers, expert witnesses, and accom-
plices. With respect to the latter category of witnesses,
the trial court identified the defendant’s alleged accom-
plice, Draper, by name and informed the jury that, ‘‘[i]n
weighing the testimony of . . . Draper, you should
consider the fact that she is facing charges as an accom-
plice to the crimes charged in this case. It may be that
you would not believe a person who has committed a
crime as readily as you would believe a person of good
character. In weighing the testimony of an accomplice
who has not yet been sentenced or whose case has not
yet been disposed of, you should keep in mind that she
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State v. Diaz
may, in her own mind, be looking for some favorable
treatment in the sentence or disposition of her own
case; therefore, she may have such an interest in the
outcome of this case that her testimony may have been
colored by that fact. Therefore, you must look with
particular care at the testimony of an accomplice and
scrutinize it very carefully before you accept it. You
should also bear in mind, however, that there are many
offenses that are of such a character that . . . the only
persons capable of giving useful testimony are those
who are, themselves, implicated in the crime. It is for
you to decide what credibility you will give to an accom-
plice and whether you will believe or disbelieve the
testimony of a person who by her own admission has
committed or contributed to the crimes charged by the
state here. Like all other questions of credibility, this
is a question you must decide based on all the evidence
presented to you.’’
Defense counsel did not object to the trial court’s
instruction regarding consideration of the defendant’s
interest in the outcome of the trial. On appeal, the
defendant now claims for the first time that this instruc-
tion constitutes plain error. To prevail on this unpre-
served claim, the defendant must satisfy the two-
pronged plain error test. First, the defendant must
establish that ‘‘there was an obvious and readily dis-
cernable error . . . .’’ (Internal quotation marks omit-
ted.) State v. Blaine, 334 Conn. 298, 306, 221 A.3d 798
(2019). Second, the defendant must establish that the
obvious and readily discernable ‘‘error was so harmful
or prejudicial that it resulted in manifest injustice.’’
(Internal quotation marks omitted.) Id. In sum, reversal
is required only if the alleged error is ‘‘both so clear
and so harmful’’ that it affects the fairness and integrity
of and public confidence in the judicial proceedings.
(Emphasis in original; internal quotation marks omit-
ted.) State v. Sanchez, 308 Conn. 64, 78, 60 A.3d 271
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State v. Diaz
(2013); see also State v. McClain, 324 Conn. 802, 812,
155 A.3d 209 (2017) (‘‘plain error . . . is reserved for
truly extraordinary situations [in which] the existence
of the error is so obvious that it affects the fairness
and integrity of and public confidence in the judicial
proceedings’’ (internal quotation marks omitted)).
The defendant’s plain error claim rests on the fact
that the challenged portion of the charge violated this
court’s clear directive in State v. Medrano, supra, 308
Conn. 604. The trial court in Medrano gave a jury
instruction similar to the one under consideration in
this case, informing the jury that, in assessing the testi-
mony of the defendant, Rafael Medrano, the jury could
‘‘consider the importance to him of the outcome of the
trial.’’ (Internal quotation marks omitted.) Id., 624. On
appeal, Medrano claimed for the first time that the trial
court’s instruction undermined the presumption of his
innocence and deprived him of his due process right
to a fair trial. Id., 622. We concluded that Medrano’s
unpreserved constitutional claim was reviewable under
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823
(1989), but that no constitutional violation occurred
pursuant to State v. Williams, 220 Conn. 385, 397, 599
A.2d 1053 (1991), in which we held that a comparable
instruction emphasizing a defendant’s interest in the
outcome of the trial and the need to evaluate the defen-
dant’s testimony in the same fashion as the testimony
of other witnesses was not unduly repetitive and did
not overstep the bounds of evenhandedness. See State
v. Medrano, supra, 622–26. Because the trial court’s
instruction did not dilute the presumption of innocence
or deprive Medrano of a fair and just trial, his claim
failed under Golding. See id., 630–31.
Although we affirmed Medrano’s conviction, we expressed
concern ‘‘that instructions regarding the defendant’s
interest in the outcome of a case, when viewed in isola-
tion from the qualifying language concerning evaluating
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State v. Diaz
the defendant’s credibility in the same manner as the
testimony of other witnesses, could give rise to a danger
of juror misunderstanding.’’ Id., 629–30. We therefore
exercised our supervisory authority over the adminis-
tration of justice prospectively to ‘‘direct our trial courts
in the future to refrain from instructing jurors, when a
defendant testifies, that they may specifically consider
the defendant’s interest in the outcome of the case
and the importance to him of the outcome of the trial.
Instead, we instruct[ed] the trial courts to use the gen-
eral credibility instruction to apply to a criminal defen-
dant who testifies.’’ Id., 631.
The state concedes that, pursuant to Medrano, the
first prong of the plain error test is satisfied in the
present case because the trial court erred in giving the
challenged instruction regarding the defendant’s inter-
est in the outcome of the trial, and the error was plain,
in the sense that it was patent, readily discernable,
obvious, and not debatable. See, e.g., State v. Jamison,
320 Conn. 589, 596, 134 A.3d 560 (2016). We agree and
pause to repeat the mandatory directive issued in
Medrano: a trial court’s jury charge must not single out
a criminal defendant’s testimony for special treatment
based on the defendant’s interest in the result of the
jury’s verdict or the importance to him of the outcome
of the trial.
The remaining issue is whether the error resulted
in manifest injustice. The fact that a trial court’s jury
instruction, by commission or omission, fails to comply
with a rule issued pursuant to our supervisory authority
‘‘does not, in and of itself, establish the existence of
manifest injustice necessary for plain error.’’ State v.
Sanchez, supra, 308 Conn. 83; see id., 82–87 (trial court’s
failure to issue eyewitness identification instruction
contrary to supervisory rule adopted in State v. Ledbet-
ter, 275 Conn. 534, 575, 881 A.2d 290 (2005), cert. denied,
547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006),
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did not result in manifest injustice); see also State v.
Smith, 275 Conn. 205, 237, 239–40, 881 A.2d 160 (2005)
(erroneous jury instruction on intent to cause death
contrary to supervisory rule adopted in State v. Aponte,
259 Conn. 512, 522, 790 A.2d 457 (2002), did not result
in manifest injustice); State v. Nims, 70 Conn. App. 378,
385, 797 A.2d 1174 (jury instruction on ingenuity of
counsel contrary to supervisory rule adopted in State
v. Delvalle, 250 Conn. 466, 475–76, 736 A.2d 125 (1999),
did not affect ‘‘the fairness and integrity of the proceed-
ings’’ or result in ‘‘manifest injustice’’), cert. denied, 261
Conn. 920, 806 A.2d 1056 (2002). To prove manifest
injustice, the defendant must establish that the evidence
adduced at trial, the disputed factual issues before the
jury, and the instructions as a whole actually gave rise,
in the particular case under review, to the danger of
juror misunderstanding or confusion that prompted the
court to adopt the rule that the trial court failed to
implement. See, e.g., State v. Sanchez, supra, 82–84.
Reviewing the trial court’s charge in its entirety, we
conclude that the defendant has failed to establish that
the erroneous instruction resulted in manifest injustice.
Although the trial court included a sentence in its charge
that improperly made a specific reference to the defen-
dant’s interest in the outcome of the trial, it also
instructed the jury in clear and direct terms that the
jury’s assessment of the defendant’s testimony must be
‘‘tested and measured . . . by the same factors and
standards as you would judge the testimony of any
other witness.’’ The trial court cautioned the jury that
it had ‘‘no right to disregard [the defendant’s] testimony,
or to disbelieve his testimony, merely because he is
accused of a crime’’ and directed the jury specifically to
consider its ‘‘earlier instructions on the general subject
matter of credibility that obviously pertain to the defen-
dant’s testimony, as well as the testimony of any other
witness.’’ Those earlier instructions on general credibil-
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State v. Diaz
ity permitted the jury to consider whether any witness
(which, as the trial court later explained, included the
defendant) ‘‘[had] an interest in the outcome of this
case, or any bias, or prejudice concerning any party or
any manner involved in the case . . . .’’ Because the
erroneous instruction was brief and immediately pre-
ceded and followed by qualifying language that is not
challenged by the defendant on appeal requiring the
jury to evaluate the defendant’s testimony as it would
the testimony of any other witness, we are confident
that the jury was not misled.7
Our conclusion in this regard is reinforced by the
evidence adduced at trial, which established that the
defendant traveled from Bridgeport with Jefferson and
Draper to purchase drugs in Waterbury and was in the
vicinity of the victim’s home on Wall Street, a known
drug house, when the victim was shot and killed. The
defendant did not dispute that he was with Draper and
Jefferson near Wall Street at the time of the attempted
robbery, burglary, and killing of the victim but testified
7
To support his claim to the contrary, the defendant relies on United
States v. Solano, 966 F.3d 184, 186, 193 (2d Cir. 2020), in which the Second
Circuit Court of Appeals held that it was plain error to instruct a jury that
a defendant’s interest in the outcome of the trial created a motive to testify
falsely. In arriving at its conclusion, the Second Circuit relied on its prior
case law—including United States v. Gaines, 457 F.3d 238 (2d Cir. 2006),
and United States v. Brutus, 505 F.3d 80 (2d Cir. 2007)—in which it expressly
‘‘ ‘denounce[d] any instruction . . . that tells a jury that a testifying defen-
dant’s interest in the outcome of the case creates a motive to testify falsely’ ’’
because, among other reasons, ‘‘ ‘a defendant does not always have a motive
to testify falsely. An innocent defendant has a motive to testify truthfully.’ ’’
(Emphasis omitted.) United States v. Solano, supra, 194, quoting United
States v. Gaines, supra, 246. In Medrano, we found Gaines and Brutus to
be distinguishable because the trial court did not ‘‘explicitly [state] that
[Medrano’s] interest in the case gave him a motivation to testify falsely.’’
State v. Medrano, supra, 308 Conn. 629. Likewise, in the present case, the
erroneous instruction did not inform the jury that the defendant’s interest
in the outcome of the trial created a motive to testify falsely. The instruction
at issue, read as a whole, directed the jury to assess the defendant’s testimony
as it would that of any other witness. Accordingly, the defendant’s reliance
on Solano is misplaced.
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State v. Diaz
that he had no knowledge of or involvement in those
crimes. Despite the defendant’s testimony, the jury was
free to infer that he was a ready and willing participant
in the criminal activity that resulted in the victim’s
death. See State v. Patrick M., 344 Conn. 565, 576, 280
A.3d 461 (2022) (‘‘[t]he jury is permitted to rely on its
common sense, experience and knowledge of human
nature in drawing inferences . . . and may draw fac-
tual inferences on the basis of already inferred facts’’
(internal quotation marks omitted)). Additionally, the
defendant’s behavior following the crimes, particularly
changing his cell phone number and lying to the police,
was inconsistent with innocence and indicative of con-
sciousness of guilt. See, e.g., State v. Turner, 181 Conn.
App. 535, 564, 187 A.3d 454 (2018) (evidence that, after
crime was committed, defendant changed his cell phone
number, evaded police, and lied about his identity sup-
ported inference of consciousness of guilt), aff’d, 334
Conn. 660, 224 A.3d 129 (2020). On the present factual
record, we cannot conclude that the erroneous jury
instruction ‘‘so affected the fairness and integrity of
and public confidence in the judicial proceedings as to
require reversal of the judgment.’’ State v. Sanchez,
supra, 308 Conn. 84; see also State v. Kyle A., 348 Conn.
437, 450–51, 307 A.3d 249 (2024) (in reviewing jury
instruction for plain error, court must evaluate evidence
adduced at trial to determine whether manifest injus-
tice occurred).
The defendant contends that the erroneous instruc-
tion likely misled the jury because it placed the defen-
dant on equal footing with Draper for purposes of the
jury’s determination of credibility. To the contrary, the
trial court explicitly informed the jury that the defen-
dant’s testimony should be assessed in accordance with
its general credibility instruction governing the testi-
mony of all other witnesses, whereas Draper’s testi-
mony was governed by the special credibility instruction
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State v. Diaz
unique to the testimony of accomplices. Indeed, the
trial court specifically informed the jury that it had ‘‘no
right to disregard [the defendant’s] testimony, or to
disbelieve his testimony, merely because he is accused
of a crime.’’ Draper, in contrast, had confessed to her
involvement in the crimes and was ‘‘facing charges as
an accomplice,’’ and the trial court accordingly instructed
the jury that it might not believe her testimony ‘‘as
readily as [it] would believe a person of good character.’’
The trial court tailored its accomplice instruction to the
specific risk posed by accomplice testimony, explaining
that an accomplice like Draper, ‘‘who has not yet been
sentenced or whose case has not yet been disposed of
. . . [may] be looking for some favorable treatment
in the sentence or disposition of her own case,’’ and,
therefore, accomplice testimony must be examined
‘‘with particular care . . . and scrutinize[d] . . . very
carefully’’ before it is accepted. The trial court’s instruc-
tions thus carefully distinguished between the special
credibility rules governing the testimony of an accom-
plice and the general credibility rules governing the
testimony of all other witnesses who might have an
interest in the outcome of the case, including the defen-
dant. We have no reason to think that the trial court’s
erroneous instruction resulted in manifest injustice
necessitating the reversal of the defendant’s conviction.
II
The defendant claims on appeal, for the first time,
that the prosecutor committed multiple improprieties
during his cross-examination of the defendant and dur-
ing rebuttal argument,8 which deprived the defendant
8
We observe that the prosecutor’s closing argument was extremely brief
and that he reserved the bulk of his time for rebuttal. No claim of error is
raised with respect to this tactic, but we repeat the concern that we articu-
lated in State v. Gonzalez, 338 Conn. 108, 257 A.3d 283 (2021): ‘‘Prosecutors
should avoid structuring their closing arguments in a manner that reserves
the entirety of their summation for rebuttal, which could implicate a defen-
dant’s constitutional rights. Of course, under such circumstances, trial judges
have discretion and are in the best position to fashion an appropriate remedy,
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of his constitutional right to a fair trial. Specifically, the
defendant contends that the prosecutor improperly (1)
commented on Draper’s credibility, (2) appealed to the
jurors’ emotions, and (3) argued facts not in evidence.
The state responds that the defendant’s claims are unre-
viewable because the alleged improprieties that occurred
during cross-examination are unpreserved evidentiary
claims and the alleged improprieties that occurred dur-
ing rebuttal argument were waived.9 Alternatively, the
state argues that the prosecutor’s remarks were not
improper and, even if improper, did not deprive the
defendant of a fair trial. We need not decide whether
the defendant’s prosecutorial impropriety claims are
unpreserved evidentiary claims, or whether they were
waived, because we agree with the state that none of
the prosecutor’s remarks was improper. See, e.g., State
including providing the defendant with an opportunity to make additional
closing arguments to the jury.’’ Id., 141 n.20.
9
The state does not dispute that unpreserved prosecutorial impropriety
claims alleging the violation of a defendant’s due process right to a fair trial
generally are reviewable even when raised for the first time on appeal. See,
e.g., State v. Stevenson, 269 Conn. 563, 572–73, 849 A.2d 626 (2004). The state
claims, however, that defense counsel affirmatively waived any challenge
to the alleged improprieties committed during rebuttal argument because,
after completing his argument, the prosecutor asked in open court whether
the trial court or defense counsel had ‘‘any objections to any of [his] state-
ments in closing,’’ and defense counsel responded that she ‘‘did not have
any objections . . . [but] would have expressed them.’’ With respect to the
alleged improprieties that occurred during cross-examination, the state,
quoting State v. Graham, 344 Conn. 825, 857, 282 A.3d 435 (2022), contends
that the defendant’s claims are ‘‘nothing other than unpreserved and unre-
viewable evidentiary issues’’ because ‘‘ ‘ ‘‘[s]imply posing an objectionable
question does not amount to an actionable impropriety.’’ ’ ’’ See id., 858
(declining to address ‘‘an unpreserved evidentiary claim masquerading as
a claim of prosecutorial impropriety’’).
Although we need not address the merits of the state’s waiver claim, we
note that, to the extent that a prosecutor has a concern or question about
the propriety of any remarks made during closing and rebuttal arguments,
the proper procedure is to identify the area of concern and to ask the trial
court to inquire of defense counsel whether he or she wishes to be heard
on that particular issue. This procedure avoids any appearance, after the
fact, that the prosecutor may have been seeking to solicit a blanket waiver
of any claims of alleged impropriety.
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v. Michael T., 338 Conn. 705, 718–19, 259 A.3d 617 (2021)
(declining to decide whether defendant’s claim was
prosecutorial impropriety claim or unpreserved eviden-
tiary claim because challenged remark was not improper);
State v. Wilson, 111 Conn. App. 614, 631 and n.8, 960
A.2d 1056 (2008) (declining to decide whether defen-
dant’s prosecutorial impropriety claim was waived because
prosecutor’s remark was not improper), cert. denied,
290 Conn. 917, 966 A.2d 234 (2009).
It is well established that ‘‘[p]rosecutorial impropriety
can occur during both the cross-examination of wit-
nesses and in the course of closing or rebuttal argu-
ment.’’ State v. Long, 293 Conn. 31, 37, 975 A.2d 660
(2009). ‘‘In analyzing claims of prosecutorial impropri-
ety, we engage in a two step analytical process.’’ (Inter-
nal quotation marks omitted.) State v. Courtney G., 339
Conn. 328, 340, 260 A.3d 1152 (2021). First, we examine
whether an impropriety occurred. Id. If the prosecutor’s
remarks were improper, then we move on to the second
step and examine whether the impropriety deprived the
defendant of his constitutional right to a fair trial. Id.
‘‘[T]he 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.
A
We first address whether the prosecutor improperly
commented on Draper’s credibility during rebuttal by
arguing that ‘‘[s]omeone is completely wrong, either
. . . Draper or [the defendant], because both events
don’t line up.’’10 The defendant claims that this comment
10
The defendant also claims that the prosecutor improperly expressed
his own personal opinion on Draper’s credibility when he stated, ‘‘[i]f you
believe [Draper’s] testimony, she’s the least culpable person, she’s the most
credible and least culpable person in this [case].’’ (Emphasis added.) This
claim lacks merit because the prosecutor was not expressing his personal
opinion on Draper’s credibility. Instead, the prosecutor explicitly condi-
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State v. Diaz
violated the rule set forth in State v. Singh, 259 Conn.
693, 712, 793 A.2d 226 (2002), because it implied that
the jury could not find the defendant not guilty unless
it found that Draper had lied. We do not agree.
In Singh, we held that it is improper for a prosecutor
essentially to argue during closing that, ‘‘in order to
find the defendant not guilty, the jury must find that
witnesses had lied . . . .’’ Id., 712. We explained that
‘‘[t]he reason for this restriction is that [t]his form of
argument . . . involves a distortion of the govern-
ment’s burden of proof’’ and ‘‘preclude[s] the possibility
that the witness’ testimony conflicts with that of the
defendant for a reason other than deceit.’’ (Internal
quotation marks omitted.) Id., 709–10. We later held, in
State v. Albino, 312 Conn. 763, 97 A.3d 478 (2014),
that, in closing argument, there is a distinction between
characterizing a witness’ testimony as a lie and charac-
terizing it simply as wrong. ‘‘[W]hen the prosecutor
argues that the jury must conclude that one of two
versions of directly conflicting testimony must be
wrong, the state is leaving it to the jury to make that
assessment [of the witness’ veracity]. . . . [B]y fram-
ing the argument in such a manner, the jury is free to
conclude that the conflict exists due to mistake (misper-
ception or misrecollection) or deliberate fabrication.’’
Id., 787. Nonetheless, the mere ‘‘use of the term ‘wrong’
instead of ‘lying’ ’’ will not always be proper if the prose-
cutor’s ‘‘ ‘closing arguments provid[e], in essence, that
in order to find the defendant not guilty, the jury must
find that witnesses had lied . . . .’ ’’ (Emphasis in origi-
nal.) Id., quoting State v. Singh, supra, 259 Conn. 712.
The prosecutor’s isolated remark did not make a
direct connection between the defendant’s guilt and
tioned his observations about relative culpability on the jury’s decision
whether to believe Draper’s testimony. See, e.g., State v. Ciullo, 314 Conn.
28, 41, 100 A.3d 779 (2014) (‘‘[a] prosecutor’s mere use of the words ‘honest,’
‘credible,’ or ‘truthful’ does not, per se, establish prosecutorial impropriety’’).
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State v. Diaz
Draper’s credibility; nor did it misrepresent the state’s
burden of proof. See State v. Albino, supra, 312 Conn.
788. Notably, Draper was unable to identify the defen-
dant as E, the individual who ‘‘bum-rushe[d]’’ the victim
with a gun and committed the charged crimes, and
the jury was informed of that fact on more than one
occasion. Given that Draper never identified the defen-
dant as her accomplice, the jury was not required to
find that Draper had lied to find the defendant not guilty.
See State v. Pjura, 200 Conn. App. 802, 830, 240 A.3d
772 (‘‘[T]he prosecutor’s comments . . . did not impli-
cate a core justification for the Singh rule because they
did not force the jury to find the defendant not guilty
only if it first concluded that the other witnesses had
lied. . . . The jury . . . could have found the defen-
dant guilty on the basis of his testimony alone.’’), cert.
denied, 335 Conn. 977, 241 A.3d 131 (2020); State v.
McCoy, 171 Conn. App. 311, 320, 157 A.3d 97 (2017)
(prosecutor’s argument that, ‘‘in order for the jurors to
find that [a witness] had received a secret plea deal,
they would need to find that several of the other wit-
nesses had lied’’ was not improper under Singh because
it ‘‘did not improperly present the jury with a choice
between believing the state’s witnesses and [finding]
the defendant [not guilty]’’), rev’d in part on other
grounds, 331 Conn. 561, 206 A.3d 725 (2019). We there-
fore conclude that the challenged remark was not
improper.
B
The defendant contends that the prosecutor’s remarks
regarding the defendant’s testimonial demeanor consti-
tuted an improper golden rule argument. The prosecu-
tor argued: ‘‘Consider, if only this, when he testified,
I’m only talking about his testimony, his demeanor on
the stand, his appearance on the stand. Was he out-
raged? Was he mad at Draper? Was he outraged people
were saying these things about him? Nah. Kind of matter
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State v. Diaz
of fact. . . . Any outrage? How would you feel if you
were there being accused of this? Would you be upset?
Be mad? Or just, ah, it happens?’’ We reject this claim.
A golden rule argument ‘‘urges jurors to put them-
selves in a particular party’s place . . . or into a partic-
ular party’s shoes. . . . Such arguments are improper
because they encourage the jury to depart from neutral-
ity and to decide the case on the basis of personal
interest and bias rather than on the evidence.’’ (Internal
quotation marks omitted.) State v. Long, supra, 293
Conn. 53–54. The principle underlying the prohibition
on golden rule arguments is that jurors must ‘‘decide
cases on the basis of the facts as they find them, and
reasonable inferences drawn from those facts, rather
than by any incitement to act out of passion or sympathy
for or against any party’’ by imagining themselves as a
party in the case. Id., 57–58.
As with many questions involving the propriety of
arguments to the jury, the precise boundaries of fair
play are not always easily articulated. ‘‘[N]ot all argu-
ments that ask jurors to place themselves in a particular
party’s situation implicate the prohibition on golden
rule argument[s].’’ (Internal quotation marks omitted.)
State v. Williams, 172 Conn. App. 820, 839, 162 A.3d
84, cert. denied, 326 Conn. 913, 173 A.3d 389 (2017).
The appellate courts of this state ‘‘repeatedly [have]
held that a prosecutor does not violate the golden rule
by using the pronoun ‘you’ or by asking the jurors to
place themselves in the position of the witness if the
prosecutor is using these rhetorical devices to ask the
jury to assess the evidence from the standpoint of a
reasonable person or to employ common sense in evalu-
ating the evidence.’’ Id., 839–40; see, e.g., State v. Long,
supra, 293 Conn. 58 (prosecutor did not make improper
golden rule argument because his remarks ‘‘were not
intended to unduly arouse the jurors’ emotions or to
elicit the jurors’ sympathies; rather, they were intended
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State v. Diaz
to encourage the jurors to draw inferences from the
evidence of [the victim’s] actions that were presented
at trial on the basis of the jurors’ views as to how a
reasonable [person] would act under the circumstances’’);
State v. Bell, 283 Conn. 748, 773, 931 A.2d 198 (2007)
(same).
We conclude that the prosecutor’s argument did not
appeal to the jurors’ passions or emotions but, instead,
asked the jurors to use their common sense and experi-
ence to infer that an innocent man accused of the crimes
charged would have exhibited some outrage or anger
on the witness stand. Such an argument falls ‘‘within the
permissible bounds of fair comment on witness credibil-
ity.’’ State v. Courtney G., supra, 339 Conn. 345 n.7;
see id., 347–48 (prosecutor’s comment on defendant’s
testimonial demeanor and ‘‘ ‘lack of outrage’ ’’ on witness
stand was not improper because prosecutor ‘‘implicitly
urged the jurors to infer, on the basis of their common
sense and experience, that an innocent man falsely
accused of sexually assaulting a child would have exhib-
ited outrage while testifying’’).11
C
Lastly, the defendant claims that the prosecutor improp-
erly referred to facts not in evidence during cross-exam-
11
The defendant argues that a prosecutor’s reliance on a criminal defen-
dant’s testimonial demeanor is problematic because it invites the ‘‘jury to
depart from neutrality and emotionally assess [a defendant’s] credibility and
culpability based on what [it considers] to be [a] normal’’ reaction to an
allegation of criminal conduct. (Emphasis omitted.) The dilemma faced by
testifying defendants of color is particularly acute, the defendant argues,
because such defendants are subject to an attack on their credibility if they
appear overly calm on the witness stand but may also feed ‘‘into biases that
persons of color are usually more aggressive’’ if they appear to be outraged.
The defendant does not ask us, however, to reconsider and overrule our
case law holding that a prosecutor properly may comment on a criminal
defendant’s testimonial demeanor. See, e.g., State v. Courtney G., supra,
339 Conn. 348; State v. Luster, 279 Conn. 414, 440, 902 A.2d 636 (2006);
State v. Dupigney, 78 Conn. App. 111, 124–25, 826 A.2d 241, cert. denied,
266 Conn. 919, 837 A.2d 801 (2003). We reject the defendant’s argument in
light of this unchallenged precedent.
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State v. Diaz
ination when he asked the defendant questions about
threats the defendant allegedly made to Draper’s son12
and commented that allegedly inconsistent statements
made during the defendant’s video-recorded police
interrogations would be played later.13 We find no merit
to these claims on this record.
The defendant’s challenge to the prosecutor’s ques-
tions fails because it is entirely appropriate to ask prop-
erly phrased questions on cross-examination that relate
to the credibility of a criminal defendant’s direct testi-
mony, even if those questions exceed the scope of the
questioning on direct examination and refer to facts
12
During the prosecutor’s cross-examination of the defendant, the follow-
ing colloquy took place:
‘‘[The Prosecutor]: Have you ever met at a parking lot? You remember
you told [Jefferson] to keep his girl’s mouth shut?
‘‘[The Defendant]: Never.
‘‘[The Prosecutor]: Never? You never threatened [Draper’s] son . . . ?
You know where [her son] goes to school?
‘‘[The Defendant]: No, I don’t.
‘‘[The Prosecutor]: [Do] you remember telling . . . Jefferson that?
‘‘[The Defendant]: Nope.’’
13
During the prosecutor’s cross-examination of the defendant, the prose-
cutor asked about alleged inconsistencies between the defendant’s trial
testimony and his video-recorded interrogations with the police:
‘‘[The Prosecutor]: And you said [Jefferson and Draper] both got in the car?
‘‘[The Defendant]: I don’t remember saying that.
‘‘[The Prosecutor]: But you could have said it?
‘‘[The Defendant]: Maybe, yeah.
‘‘[The Prosecutor]: Okay. We’ll play it out later.
***
‘‘[The Prosecutor]: Didn’t you tell [the police] later on you saw [Jefferson]
getting out of the car with a gun?
‘‘[The Defendant]: I assumed he got out with a gun in his hand.
‘‘[The Prosecutor]: You said you saw it in the waistband, sir. You recall
that?
‘‘[The Defendant]: I don’t recall that.
‘‘[The Prosecutor]: I’ll play that for you, too.
***
‘‘[The Prosecutor]: You told the police you saw him get out of the car
with a gun on Wall Street, correct? In his waistband?
‘‘[The Defendant]: I never said that. I don’t recall saying that.
‘‘[The Prosecutor]: Okay. We’ll play that for you. You don’t recall that?
‘‘[The Defendant]: No.’’ (Emphasis added.)
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State v. Diaz
not in evidence. See State v. Sharpe, 195 Conn. 651,
657, 491 A.2d 345 (1985). A cross-examiner may ask
questions that are ‘‘designed to rebut, impeach, modify,
or explain any of the defendant’s direct testimony’’;
(internal quotation marks omitted) id.; ‘‘if he or she
has a good faith belief that a factual predicate for the
question exists.’’ State v. Barnes, 232 Conn. 740, 747,
657 A.2d 611 (1995); see also State v. Annulli, 309 Conn.
482, 492, 71 A.3d 530 (2013) (‘‘[t]he law in Connecticut
on impeaching a witness’ credibility provides that a
witness may be cross-examined about specific acts of
misconduct that relate to his or her veracity’’). Our
review of the record reveals that the prosecutor’s ques-
tions were designed to test the defendant’s credibility
and to rebut, impeach, modify, or explain the defen-
dant’s direct testimony. The defendant does not claim
that the prosecutor lacked a good faith basis to ask the
challenged questions or that the questions themselves
or the information sought was inflammatory, inadmissi-
ble, unduly prejudicial, or in violation of a court order.
We therefore conclude that the prosecutor’s questions
were not improper.
The prosecutor’s commentary indicating that the
inconsistent statements in the defendant’s video-recorded
interrogations would be played later presents a closer
question. Gratuitous commentary14 during cross-exami-
nation can be improper, particularly if it is sarcastic,
provocative, or aggressive. See, e.g., State v. Wilson, 308
Conn. 412, 443–44, 64 A.3d 91 (2013) (‘‘the prosecutor’s
sarcastic ‘congratulations,’ offered three times over
defense counsel’s objection, constituted ‘an excessive
and inappropriate use of sarcasm’ ’’); State v. James R.,
138 Conn. App. 181, 192, 50 A.3d 936 (state acknowl-
edged that prosecutor’s editorial comment ‘‘ ‘[o]f course
you do’ ’’ during defendant’s cross-examination was
14
Gratuitous commentary includes, but is not limited to, statements,
remarks, and asides that are argumentative or editorial in nature.
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0 Conn. 1 ,0 29
State v. Diaz
improper commentary), cert. denied, 307 Conn. 940, 56
A.3d 949 (2012). However, although objectionable, not
all gratuitous prosecutorial commentary during cross-
examination rises to the level of impropriety. See, e.g.,
State v. Andrews, 313 Conn. 266, 292, 96 A.3d 1199
(2014) (concluding that prosecutor’s remark, ‘‘ ‘[c]ome
on,’ ’’ was not improper because it was intended ‘‘to
encourage the defendant to testify truthfully as to his
prior experience in giving, or understanding the pur-
pose of, written statements to the police’’); State v.
Grant, 154 Conn. App. 293, 322, 112 A.3d 175 (2014)
(concluding that prosecutor’s remark ‘‘ ‘really?’ ’’ was
not improper because it was ‘‘an attempt to confirm
the truth or to clarify the defendant’s responses to his
questions’’), cert. denied, 315 Conn. 928, 109 A.3d 923
(2015). To determine whether an impropriety exists,
we must ‘‘consider each alleged impropriety in the con-
text in which it occurred,’’ while remaining aware that
our review is ‘‘constrained by our inability to assess
the tone and body language of the prosecutor . . . and
the limitations necessarily imposed by our reliance on
the cold, printed record.’’ State v. Andrews, supra, 284.
Viewing the prosecutor’s comments (‘‘[w]e’ll play it
out later,’’ ‘‘I’ll play that for you, too,’’ and ‘‘[w]e’ll play
that for you’’) in the context of the entire trial, we
conclude that the defendant has failed to establish that
these remarks rose to the level of impropriety. It is
true that the defendant’s video-recorded interrogations
ultimately were not offered into evidence, but the jury
was well aware of their existence and the fact that many
of the defendant’s statements therein were inconsistent
with his trial testimony. Indeed, on direct examination,
the defendant candidly testified that he had lied to the
police multiple times when he was interviewed regard-
ing his involvement in the charged crimes. On cross-
examination, the prosecutor questioned the defendant
extensively about these inconsistencies, and the defen-
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30 ,0 0 Conn. 1
State v. Diaz
dant freely admitted to many inconsistent statements,
although he could not recall making at least two of
them. See footnote 13 of this opinion. The defendant
does not claim that these two inconsistent statements
were inadmissible for impeachment purposes or that
the prosecutor lacked a good faith intent to play them
at the time he made the challenged remarks. Addition-
ally, the defendant does not claim, and the record does
not reflect, that the prosecutor’s comments were deliv-
ered in a sarcastic, provocative, or aggressive manner.
We caution all lawyers, including prosecutors, that the
purpose of cross-examination is to pose questions, not
to interject argumentative commentary, but we cannot
conclude on the present record that the prosecutor’s
remarks constituted improprieties.
The judgment is affirmed.
In this opinion the other justices concurred.