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STATE v. A. M.—DISSENT
ZARELLA, J., with whom ESPINOSA, J., joins, dis-
senting. I disagree with the majority’s conclusion that
the defendant, A. M., is entitled to reversal of his convic-
tions as a result of statements made by the assistant
state’s attorney (prosecutor) during closing arguments
at the defendant’s trial. The majority concludes that
these statements, in which the prosecutor noted that
the defendant had not testified, violated General Stat-
utes § 54-84, as well as the defendant’s fifth amendment
right to remain silent,1 and that these violations were not
harmless. Although I agree that the statements violated
§ 54-84, I cannot conclude that the statements violated
the defendant’s fifth amendment rights because they
did not ‘‘suggest [that the] defendant’s silence [was]
evidence of guilt.’’ (Emphasis in original; internal quota-
tion marks omitted.) Portuondo v. Agard, 529 U.S. 61,
69, 120 S. Ct. 1119, 146 L. Ed. 2d 47 (2000). Nevertheless,
even if the prosecutor’s statements did violate the fifth
amendment, I am convinced beyond a reasonable doubt
that any such violation was insignificant and had no
impact on the trial, and thus was harmless. Although
the prosecutor referenced the fact that the defendant
had not testified, she did not ask or imply that the jury
hold the defendant’s decision not to testify against him,
and the prosecutor did not otherwise convey to the jury
anything it had not already observed itself. Indeed, the
absence of any prejudice in this matter is demonstrated
by the lack of any objection from defense counsel to
the prosecutor’s comments or any request for a specific
curative instruction at trial. Moreover, any possibility
that the jury might use the defendant’s silence against
him as a result of the prosecutor’s comments was dis-
pelled by the court’s instructions, in which the court
expressly directed the jury that it could not infer guilt
from the defendant’s decision not to testify. To con-
clude that the jury nevertheless misused the defendant’s
silence in the face of this instruction requires a conclu-
sion that the jury disregarded the instruction. We pre-
sume, however, that the jury followed the court’s
instructions in the absence of evidence to the contrary;
see, e.g., State v. Ancona, 256 Conn. 214, 219, 772 A.2d
571 (2001); and, in the present case, there is no such
evidence to the contrary. Finally, although the majority
viewed the state’s case as weak—presumably making
the jury more susceptible to using improper considera-
tions to decide the case—a review of the record dispels
any such conclusion. For these reasons, I am convinced
that the prosecutor’s statements had no impact on the
outcome of the trial and, thus, were harmless. There-
fore, I respectfully dissent.
In analyzing the comments in the present case, I am
convinced that they did not influence the jury’s deci-
sion. Even if the prosecutor violated the defendant’s
fifth amendment rights, the defendant is still not entitled
to a new trial if the state establishes that the violation
was harmless beyond a reasonable doubt. See, e.g.,
State v. Payne, 303 Conn. 538, 563–64, 34 A.3d 370
(2012). ‘‘[I]t is the duty of a reviewing court to consider
the trial record as a whole and to ignore errors that
are harmless, including most constitutional violations
. . . .’’ (Citations omitted.) United States v. Hasting,
461 U.S. 499, 509, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983).
To determine whether the comments were harmful, we
must determine whether the comments prejudiced the
defendant. ‘‘The question of whether the defendant has
been prejudiced by prosecutorial [impropriety] . . .
depends on whether there is a reasonable likelihood
that the jury’s verdict would have been different absent
the sum total of the improprieties.’’ (Internal quotation
marks omitted.) State v. Angel T., 292 Conn. 262, 287,
973 A.2d 1207 (2009). In determining whether the state-
ments had any impact on the outcome, the statements
must be analyzed in the context of the trial as a whole.
See, e.g., State v. Luster, 279 Conn. 414, 442, 902 A.2d
636 (2006).
When the statements at issue in the present case are
examined in context, it becomes clear that they were
harmless. The prosecutor did not ask the jury, explicitly
or implicitly, to hold the defendant’s silence against him
but, instead, reminded the jury that it could consider the
defendant’s statements to the police in evaluating the
defendant’s credibility. Specifically, in the first state-
ment at issue, the prosecutor stated: ‘‘This is the other
thing. Counsel did not present his client to testify. That’s
their right guaranteed by the constitution if any of us
were accused. But there is evidence as to things that
[the defendant] said. His sworn statement. Also, testi-
mony by a couple of police officers as to what he said
to them, and that’s before you.’’ In the second statement
at issue, the prosecutor stated: ‘‘You’ve got to look at
the credibility of the defendant as well. I mean, he
didn’t testify. Again, that’s his right, but there are some
statements that are contained in the evidence. One [of]
which that I’ve just referred to was his sworn statement
as well as some statements by the police that he made
the night he was arrested. Statements like, ‘I’ve never
seen her naked.’ Three year olds in the house? We’re
all parents. Come on, never? Never? Never touched or
tickled her ever. Really? Does that make sense?’’
These statements, even if improper, were isolated
and not egregious. The prosecutor never asked the jury
to draw a negative inference from the defendant’s fail-
ure to testify or suggested that the jury should draw a
negative inference from his silence. Instead, the prose-
cutor’s statements were meant to convey to the jury
that, even though the defendant did not testify at trial,
his statements to the police were contained in the
record, and that the jury could use the statements to
assess the defendant’s credibility. Apart from these two
passing references, there were no other instances of
prosecutorial impropriety, and the comments at issue
were benign. ‘‘[M]oreover . . . [a defendant is not enti-
tled to prevail when] the claimed [impropriety] was not
blatantly egregious and merely consisted of isolated and
brief episodes that did not reveal a pattern of conduct
repeated throughout the trial.’’ (Internal quotation
marks omitted.) State v. Luster, supra, 279 Conn. 442.
The prosecutor made no other allegedly improper state-
ments during the trial, so her statements do not consti-
tute a pattern of repeated conduct and thus do not
warrant reversal.2
Furthermore, the prosecutor did not tell the jurors
anything that they had not already perceived. The state-
ments were made during closing arguments, and, at
that time, the jury would have been well aware that the
defendant had not testified and that no testimony from
the defendant would be forthcoming.
The prosecutor’s comments would not have influ-
enced the jury for another reason, namely, that they
conveyed precisely the same information that the trial
court provided to the jury in its instructions on the law.
In its jury charge, the trial court expressly reminded
the jury that ‘‘the defendant has elected not to testify
in this particular case,’’ that the defendant ‘‘is under no
obligation to testify,’’ and that ‘‘[h]e has a constitutional
right that is protected by the [United States] as well as
the Connecticut constitutions not to testify . . . .’’ The
prosecutor’s comments mirrored this instruction.
Contrary to the majority’s assertion, the prosecutor’s
comments in this case are nothing like the comments
in the cases on which the majority relies, in which
reversible error was found. For example, in Griffin v.
California, 380 U.S. 609, 610–11, 615, 85 S. Ct. 1229, 14
L. Ed. 2d 106 (1965), both the prosecutor and the trial
court told the jury that it could draw inferences of guilt
from the defendant’s silence. In the present case, the
prosecutor merely sought to draw attention to the
defendant’s statements that were contained in the
record. The prosecutor made no assertion that the jury
should hold the defendant’s failure to testify against
him.
The majority incorrectly asserts that ‘‘the egre-
giousness of the remarks in this case [was] equal to, if
not greater than’’ the egregiousness of the prosecutor’s
remarks in State v. Maguire, 310 Conn. 535, 78 A.3d
828 (2013). This case is nothing like Maguire. In that
case, this court granted a new trial to the defendant,
Michael G. Maguire, because the prosecutor repeatedly
told the jury that Maguire was asking the jury to con-
done child abuse and to find that child abuse that hap-
pens in secret is legal, and also told the jury that defense
counsel was a liar. Id., 555, 576. In Maguire the prosecu-
tor’s remarks were meant to inflame the passions of
the jurors, but, in the present case, the prosecutor’s
statements were merely an attempt to remind the jurors
of the evidence in the record that they could consider.
The majority also never explains how the prosecu-
tor’s statements in the present case were harmful.
Instead, the majority concludes that the statements
were severe simply because the statements violated the
fifth amendment and § 54-84. The mere existence of a
constitutional violation, however, is not indicative of
harmful error. See, e.g., United States v. Hasting, supra,
461 U.S. 509. The majority never explains how the state-
ments could have prejudiced the jury or even what the
prejudice is. In effect, the prosecutor stated to the jury
that the defendant’s credibility could still be assessed
despite the fact that he failed to testify, which is the
defendant’s right, by considering his statements to the
police. The two inferences that can be drawn from this
are, one, the jury cannot assess the defendant’s veracity
from the fact that he failed to testify, and, two, the jury
can assess the credibility of his statements to the police.
The lack of any prejudicial effect is further demon-
strated by defense counsel’s failure to object to the
statements at trial. If the prosecutor’s statements were
truly as severe as the majority would have us believe,
surely, defense counsel would have moved for a mis-
trial3 or at least would have objected to these state-
ments. After all, counsel made another unrelated objec-
tion to the prosecutor’s closing argument. The reason
there was no objection is simple: no one perceived the
statements as prejudicial.
When considering the impact of a prosecutor’s
improper comments, ‘‘this court consider[s] it highly
significant that defense counsel failed to object to any
of the improper remarks, request curative instructions,
or move for a mistrial. . . . A failure to object demon-
strates that defense counsel presumably [did] not view
the alleged impropriety as prejudicial enough to jeopar-
dize seriously the defendant’s right to a fair trial.’’ (Cita-
tion omitted; internal quotation marks omitted.) State
v. Luster, supra, 279 Conn. 443; see also State v. Angel
T., supra, 292 Conn. 289 (‘‘because the defendant failed
to object or to seek curative measures at trial . . .
this factor support[ed] the state’s contention that the
prosecutorial impropriety was not particularly severe’’).
Notably, after the prosecutor’s rebuttal argument,
defense counsel did make an unrelated objection after
the prosecutor showed the jury a trial transcript that
had not been entered into evidence. Despite raising
this objection to the state’s rebuttal, counsel made no
mention of the prosecutor’s comments regarding the
defendant’s decision not to testify. This strongly sug-
gests that defense counsel did not view either of the
prosecutor’s comments as being prejudicial to the
defendant and, further, that the statements had no
meaningful impact on the jury. See, e.g., State v. Lemon,
248 Conn. 652, 665, 731 A.2d 271 (1999) (lack of objec-
tion to statements later challenged on appeal is evi-
dence that counsel did not deem statements to be
prejudicial when they were made).
The majority places virtually no weight on defense
counsel’s failure to object to an impropriety that the
majority would now have us believe was ‘‘particularly
egregious.’’ Because we are able to review only a tran-
script of the words used at trial, we must rely on the
parties’ actions during the trial, and defense counsel’s
failure to object indicates that the prosecutor’s com-
ments had no discernible impact on those in the court-
room who witnessed the argument as it unfolded. The
majority excuses defense counsel’s failure to object by
classifying the failure as a tactical decision. The major-
ity claims that defense counsel may have chosen not
to object because counsel did not wish to draw the
jury’s attention to the prosecutor’s statements. There
simply is no rational reason why competent counsel
would have ignored these statements if they actually
were ‘‘particularly egregious.’’ If defense counsel did
not want to object in the presence of the jury because
he thought that it would highlight the fact that the
defendant did not testify, he could have objected after
the jury left the courtroom. In fact, defense counsel did
object to other aspects of the rebuttal argument after the
jury left the courtroom. Therefore, defense counsel’s
failure to object is ‘‘ ‘highly significant’ ’’ evidence that
the prosecutor’s statements were not severe. State v.
Luster, supra, 279 Conn. 443. Even if we assume that
defense counsel chose not to object for some inconceiv-
able tactical reason, appellate review of prosecutorial
impropriety claims ‘‘is not intended to provide an ave-
nue for the tactical sandbagging of our trial courts but,
rather, to address gross prosecutorial improprieties that
clearly have deprived a criminal defendant of his right
to a fair trial.’’ State v. Ceballos, 266 Conn. 364, 414–15,
832 A.2d 14 (2003).
Even if the prosecutor’s comments could have caused
harm, which they did not, the trial court’s instructions
dispelled that risk. Although defense counsel did not
object to the comments or ask for any curative instruc-
tions, the trial court, pursuant to § 54-84 (b), expressly
instructed the jury that it could ‘‘draw no unfavorable
inferences from the defendant’s choice not to testify in
this particular instance.’’ If the prosecutor’s statements
had some effect on the jury, the court’s instruction
cured that effect. In State v. Jones, 320 Conn. 22, 38–39,
128 A.3d 431 (2015), we concluded that general jury
instructions that directly addressed prosecutorial
improprieties ameliorated those improprieties. In fact,
in nearly all cases in which defense counsel failed to
object to and request a specific curative instruction in
response to a prosecutorial impropriety, and the court’s
general jury instruction addressed that impropriety, we
have found that the court’s general instruction cured
the impropriety. See, e.g., id.; State v. Luster, supra,
279 Conn. 446; State v. Warholic, 278 Conn. 354, 402,
897 A.2d 569 (2006); State v. Stevenson, 269 Conn. 563,
597–98, 849 A.2d 626 (2004). The court’s instructions
in the present case directly addressed the prosecutor’s
improper comments, unlike in the cases that the major-
ity relies on, namely, Angel T. and Maguire, in which
the jury instructions did not address all aspects of the
prosecutorial improprieties.4
The jury instructions in the present case specifically
addressed the defendant’s failure to testify, informing
the jury that it was, as the prosecutor had stated, the
defendant’s constitutional right not to testify. The trial
court also instructed the jury that it was not allowed
to draw any adverse inference from the defendant’s
failure to testify. We do not assume, in the absence of
evidence to the contrary, that jurors will ignore the
court’s instructions. See, e.g., State v. Ancona, supra,
256 Conn. 219.5
The majority claims that ‘‘no general charge would
have sufficed’’ because the remarks were ‘‘so egregious
. . . .’’ For the foregoing reasons, I disagree with the
majority’s claim that the prosecutor’s remarks were
egregious. But for the fact that the comments were a
technical violation of § 54-84, they were not improper
at all, and, therefore, the court’s general jury instruction
completely cured the impropriety. The reason is simple:
the jury instructions and the statements by the prosecu-
tor were correct statements of the law.
Finally, although the majority claims that the state’s
case was so weak that the prosecutor’s statements
likely impacted the jury’s decision despite any curative
instructions, a review of the record belies such a conclu-
sion. The majority contends that the prosecutor’s state-
ments were harmful because the state’s case was weak
and turned entirely on matters of credibility, such that
the prosecutor’s statements might have led the jury
to discredit the defendant and to find him guilty. The
majority, however, does not analyze the strength of
the state’s evidence in the present case. Instead, the
majority cites State v. Ceballos, supra, 266 Conn. 364,
in which we observed that ‘‘a child sexual abuse case
lacking conclusive physical evidence, when the prose-
cution’s case rests on the credibility of the victim . . .
is not particularly strong.’’ (Internal quotation marks
omitted.) Id., 416.
I disagree that Ceballos supports the majority’s broad
contention, namely, that a lack of physical evidence
necessarily makes the state’s case so weak that it auto-
matically weighs in favor of the defendant. In Ceballos,
we also stated that the ‘‘absence of conclusive physical
evidence of sexual abuse does not automatically render
[the state’s] case weak . . . .’’ Id.
Moreover, my review of the trial evidence convinces
me that the state’s case was strong enough that the
comments would not have influenced the jury’s verdict
or impacted the outcome of the proceedings. Although
the outcome of the present case turned largely on the
credibility of the victim’s accusations and the defen-
dant’s denials, the state presented evidence to support
the victim’s credibility and additional evidence to
impeach the truth of the defendant’s statements to the
police and the defendant’s general character.
The majority ignores the fact that the jury had a
substantial opportunity to evaluate the victim’s credibil-
ity on the basis of her in-court demeanor. The victim
testified on three separate occasions, and defense coun-
sel was able to cross-examine her regarding all of the
allegations that she had made during her forensic inter-
view. Defense counsel questioned the victim about each
specific allegation of abuse contained in the video-
recorded interview, and the victim answered all of
defense counsel’s numerous questions. The state also
presented expert testimony indicating that it was not
unusual for a young child to be uncertain about pre-
cisely when she had been abused.
Later, defense counsel called the victim’s mother to
testify regarding the defendant’s good character, but
much of her testimony was contradictory. The victim’s
mother testified that she had never seen the defendant
‘‘be fresh around women’’ but later admitted that the
defendant had a history of violent behavior toward
women. Specifically, she acknowledged that she had
once called the police after the defendant punched her
in the face. She also testified that, on a separate occa-
sion, another woman had told her that the defendant
was having an affair; when the defendant found out, he
went to the woman’s home and smashed her car wind-
shield.
The testimony of the victim’s mother was also incon-
sistent with the defendant’s own statements to the
police. In his sworn statement to the police, the defen-
dant claimed that he never had been alone in the home
with the victim since she made her first allegations.
Contrary to the defendant’s claim that he was never in
the home alone with the victim after August, 2009, the
victim’s mother stated that there were still times when
the defendant was alone with the victim.
The prosecutor also pointed out that the defendant’s
own statements to the police were contradictory. The
defendant claimed that he had not hugged or kissed
the victim since she was ‘‘very young . . . .’’ In the
very same statement, he said that, after the victim’s
mother had kicked him out of her home, he returned
to confront the victim about her allegations. The defen-
dant then stated that, upon doing so, the victim apolo-
gized to him, they hugged, and then went to the mall
where he and the victim held hands.
Considering that defense counsel failed to object to
the prosecutor’s comments and that the trial court
instructed the jury that it could not consider the defen-
dant’s decision not to testify, I am convinced beyond
a reasonable doubt that the prosecutor’s comments did
not impact the jury’s decision. The jury had before it
ample evidence from which to consider the credibility
of the victim and the strength of the defendant’s case.
The jury was able to observe the victim’s demeanor in
court during her testimony, including during extensive
cross-examination. Additionally, the state presented
evidence to discredit the victim’s mother’s description
of the defendant’s character and to impeach the credi-
bility of the defendant’s own statements to the police.
For all of the foregoing reasons, I would conclude
that the prosecutor’s statements did not impact the
outcome of the trial and, thus, were harmless. Accord-
ingly I would reverse the judgment of the Appellate
Court, and, therefore, I respectfully dissent.
1
The fifth amendment privilege against self-incrimination is made applica-
ble to state prosecutions through the due process clause of the fourteenth
amendment. See, e.g., Malloy v. Hogan, 378 U.S. 1, 3, 84 S. Ct. 1489, 12 L.
Ed. 2d 653 (1964).
2
The majority asserts that these two statements were ‘‘two too many’’
and also asserts that it ‘‘could not condone even one violation of such an
extreme nature.’’ The majority concludes that the remarks were frequent
not because they were pervasive or repeated but, rather, because the prose-
cutor’s comments violated the fifth amendment and § 54-84. Such a conclu-
sion turns the meaning of the word ‘‘frequent’’ on its head. The majority’s
position means that this factor will always support reversal, because even
a single violation would constitute a frequent occurrence.
3
Defense counsel was not reluctant to move for a mistrial when he
believed that doing so was appropriate. Throughout the course of the trial,
defense counsel moved for a mistrial on five different occasions.
4
The majority mentions that the court’s charge on credibility related
only to witnesses who testified at trial and not to the defendant’s written
statements to the police. This is irrelevant when determining the curative
effect of the court’s general jury instructions. The alleged impropriety was
the prosecutor’s reference to the defendant’s failure to testify, not that the
prosecutor asked the jury to examine the defendant’s written statements.
5
The jury’s decision to find the defendant not guilty of one of the charges
against him strongly indicates that the prosecutor’s remarks did not lead
the jury to condemn the defendant for his refusal to testify, and that the
jury instead properly applied the court’s instructions in reaching its verdict.
See, e.g., State v. Lucas, 63 Conn. App. 263, 278–79, 775 A.2d 338, cert.
denied, 256 Conn. 930, 776 A.2d 1148 (2001). The fact that the jury found
the defendant not guilty on some of the charges against him ‘‘clearly demon-
strat[es] the jurors’ ability to filter out the allegedly improper statements
and make independent assessments of credibility.’’ State v. Ciullo, 314 Conn.
28, 60, 100 A.3d 779 (2014). Contrary to the majority’s assertion, the defen-
dant’s acquittal is relevant because it shows that the jury did not blindly
condemn the defendant for his failure to testify.