State v. A. M., SC19497

Background

Defendant A.M. convicted after trial on child sexual abuse charges; appeal concerns prosecutor comments in closing about defendant not testifying.
Prosecutor referenced that defendant did not testify but reminded jury his sworn statement and police statements were in evidence and could be considered for credibility.
Majority concluded these remarks violated Conn. Gen. Stat. § 54-84 and the Fifth Amendment and were not harmless, warranting reversal.
Justice Zarella (dissent, joined by Justice Espinosa) agrees the comments violated § 54-84 but argues they did not violate the Fifth Amendment or, if they did, any violation was harmless beyond a reasonable doubt.
Dissent emphasizes: comments were isolated, non-egregious, mirrored trial court instructions protecting the right not to testify, defense counsel did not object, and the record contained other strong evidence undermining defendant’s credibility.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether prosecutor’s closing remarks referencing defendant’s failure to testify violated § 54-84 and Fifth Amendment	Remarks impermissibly called attention to defendant’s silence and invited adverse inference; reversible error	Remarks were lawful reminders that defendant’s out-of-court statements were in evidence; did not ask jury to infer guilt from silence	Majority: violation of § 54-84 and Fifth Amendment; reversal. (Dissent: violation of § 54-84 only; any Fifth Amendment error harmless.)
If constitutional violation occurred, whether it was harmless beyond a reasonable doubt	Violation was not harmless given credibility-centric case and potential for prejudice	Any error was harmless: isolated remarks, no objection, jury instructions cured risk, other evidence supported verdict	Held by dissent: harmless beyond a reasonable doubt; majority found not harmless and reversed.
Whether trial court’s general jury instructions cured the impropriety	General instruction insufficient because remarks were egregious and likely to influence jury	General instruction explicitly stated no adverse inference and mirrored prosecutor’s permissible points, so it cured potential harm	Dissent: instructions cured any risk. Majority: instructions insufficient to dispel prejudice.
Significance of defense counsel’s failure to object	Even absent objection, impact can be assessed on record; reversal warranted if error not harmless	Failure to object shows counsel did not view remarks as prejudicial; weighs toward harmlessness	Dissent: lack of objection is significant evidence of non-prejudice. Majority treated other factors as outweighing that absence.

Key Cases Cited

Portuondo v. Agard, 529 U.S. 61 (2000) (clarifies when comment on defendant’s silence suggests adverse inference)
Griffin v. California, 380 U.S. 609 (1965) (prosecutor or judge may not comment to invite adverse inference from defendant’s silence)
United States v. Hasting, 461 U.S. 499 (1983) (harmless-error analysis for constitutional violations)
State v. Maguire, 310 Conn. 535 (2013) (prosecutorial remarks found egregious; new trial ordered)
State v. Ceballos, 266 Conn. 364 (2003) (discusses strength of child-abuse prosecutions lacking physical evidence)