Opinion
Our fеderal and state constitutions guarantee a criminal defendant the rights to compel the state to prove its case beyond a reasonable doubt at a public trial, to confront the witnesses against him, and to assert a vigorous defense. See U.S. Const., amend. VI; Conn. Const., art. first, § 8. A prosecutor who argues to a jury that there is something inappropriate about a defendant’s assertion of these fundamental rights jeopardizes the integrity of the process. Unfortunately, this is a case in which such prosecutorial impropriety “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” (Internal quotation marks omitted.) Darden v. Wainwright,
The defendant, Felix R. appeals from the judgment of conviction, rendered after a jury trial, of two counts
The jury reasonably could have found the following facts beyond a reasonable doubt. The complainant, the defendant’s daughter, was bom in the Dominican Republic to parents who never married one another. The defendant moved to the United States, and the
The defendant began to touch the complainant in a sexual manner approximately three months after she arrived in Connecticut. On occasion the defendant tried to Mss her and have her touch his penis. In 2006, the defendant took the complainant to a mental health clinic because she wept frequently, was having difficulty sleeping, and was anxious. When she was seen at the clinic, the complainant did not mention the defendant’s sexual advances toward her because the defendant had threatened to hurt her if she told anyone about it. At trial, the clinical psychologist who counseled the complainant, Patricia Nogelo, testified that she saw the complainant for individual and family therapy. According to Nogelo, the complainant did not have mental health problems but needed help adjusting to her new life in Connecticut.
The complainant attempted to tell her mother about the defendant’s sexual advances by writing her a letter. She asked the defendant to deliver the letter when he traveled to the Dominican Republic. The complainant does not know whether her mother ever received the letter. In late 2007 or early 2008, the complainant and the defendant together visited the Dominican Republic. During their visit, the complainant told her paternal aunt that the defendant abused her. The paternal aunt confronted the defendant, who denied the accusations of abuse. The complainant’s paternal aunt then accused the complainant of being a liаr. In late 2008, the complainant’s maternal aunt, Mercedes, asked the complainant about a letter in which the complainant had
On the morning of May 9,2009, when the complainant was fourteen, the defendant awakened her by touching her breasts. The defendant held the complainant’s hands above her head and took off her pajamas. The complainant asked the defendant to stop, but he covered her mouth, told her to shut up, and forced her to engage in sexual intercourse. The defendant used a condom, but it broke. The complainant saw “white stuff’ in the broken condom and on her body. The defendant instructed the complainant not to tell anyone what had occurred. Later that morning, the defendant purchased a pregnancy test and Plan B (morning after pill).
During the Memorial Day weekend of 2009, the defendant took the complainant to New York City, where she visited Mercеdes. During the visit, the complainant told Mercedes that, for more than a year, the defendant
The complainant telephoned the defendant from New York and told him that she did not want to return home because she did not want to be abused any longer. The defendant instructed her to come home and not to tell anyone about the sexual abuse. On the Wednesday following the Memorial Day holiday, the complainant took the train to Connecticut. On Thursday morning, May 28, 2009, the defendant touched the complainant while she was sleeping. The complainant awakened, pushed the defendant away, and slapped him. The defendant left the complainant alone but warned her not to tell anyone or he would do something to her.
The complainant went to school and reported the defendant’s sexual abuse to her guidance counselor. She told her guidance counselor that the defendant had touched her breasts that morning and had done so many times previously. She also told him that the defendant had penetrated her and threatened to send her back to the Dominican Republic if she told anyone about it. Moreover, the complainant also stated that she was afraid to go home from school. The guidance counselor telephoned the department hotline to report what the complainant had told him. A department social worker, Tira Gant, interviewed the complainant at school. The department placed the complainant in foster care that day.
Later, on the evening оf May 28, 2009, department personnel informed the defendant of the complainant’s
Detective John Ventura interviewed the defendant. The defendant told Ventura that, on a couple of occasions, he had taken the complainant to the hospital for an evaluation because he thought she was having sex with a boy. The defendant claimed that the hospital had refused to see the complainant on thоse occasions for “ethical reasons.” The defendant also informed Ven-tura that the complainant slept in his bed because she was not getting along with her paternal grandmother, and that he saw nothing wrong with the complainant’s sleeping with him. When Ventura asked the defendant if he had purchased a pregnancy test for the complainant, the defendant became excited and extremely nervous. He denied having purchased a pregnancy test and claimed that the complainant had used his credit card without telling him why. He also denied that he had bought the complainant a morning after pill.
The following day, however, the defendant telephoned Ventura and admitted that he had purchased a morning after pill and a pregnancy test for the complainant. The defendant’s credit card statement, a Walgreens electronic report and its surveillance photographs confirmed that the defendant had made the subject purchases at 10:02 a.m. on May 9, 2009. The defendant explained to Ventura that he had not been truthful when
On June 1, 2009, a social worker from the Yale Child Sexual Abuse Clinic, Theresa Montelli, conducted a forensic interview of the complainant. Although the complainant told Montelli that no one other than the defendant had ever touched her sexually, she testified at trial that she had had sex with two boys.
In early June, 2009, a pediatric nurse practitioner, Janet Murphy, conducted a physical examination of the complainant. According to Murphy, the complainant’s vaginal examination was normal, wMch was not dispos-itive of whether the complainant had had sexual intercourse. The complainant’s blood and urine tests, however, indicated that she was pregnant. Within days of Murphy’s examination, the complainant had a miscarriage whilе she was at school. Although medical tests were inconclusive as to who had impregnated her,
In mid-June, 2009, department social workers Ana-maris Colon and Gant met with the defendant to inform him that the department was considering placing the complainant with one of her maternal aunts, either Elka or Mercedes, in New York. The defendant objected to placing the complainant with her maternal aunts on a number of grounds, claiming that they would not be good supervisors. He asserted that, when the complainant had visited her aunts during the Memorial Day weekend, she had run away for fourteen hours and had sex with a boy named Jonathan. The complainant, Mercedes, and the New York equivalent of the department denied that the complainant had run away for fourteen hours. The defendant reported to Colon and Gant that the complainant “was pretty much loose with the boys” and that she had accused him of sexual assault because she was afraid that he would punish her. He also reported that the complainant had posted an image of her face and a penis on her social network website. The complainant provided Colon with access to the website, but Colon was unable to locate the alleged image during an extended search.
Later that day, after Colon and Gant had met with the defendant, Ventura and Detective Sean Houlihan were notified by the Bridges Community Center that the defendant had expressed suicidal ideation. The officers went to the defendant’s home and observed him in an agitated and tearful state. The defendant stated that he was upset because the department was attempting to place the complainant with her maternal aunts in New York. Moreover, the defendant stated that he was angry with Elka, and told a hotline worker that he wanted to harm Elka as he blamed her for the fact that he was
The defendant was arrested in January, 2010, and charged with various crimes. A jury trial was held in May, 2011. Given the lack of direct evidence, the complainant’s credibility was a principal issue at trial.
On appeal,
I
THE PROSECUTOR’S FINAL ARGUMENT
To support his claim of prosecutorial impropriety, the defendant has identified several portions of the prosecutor’s final and rebuttal arguments that he claims were improper. After laying out the evidence, the prosecutor stated that since the day the complainant confided in her guidance counselor, the complainant “has been in foster care, but that didn’t end the trauma, ladies and gentlemen. She was interviewed by strangers. She was poked and prodded by doctors and nurses. She had a miscarriage. And she had to relive the whole experience here, facing you and the defendant, and telling you what happened to her over the period of four years. And she had to recite to you who she had sex with and who she hasn’t, because of what that man did to her and said about her during the investigation of this case. I had to ask her . . . did you ever post a photograph of yourself on the web with a penis in your face. I had to ask her that question in front of strangers, because of what that man said and did to her." (Emphasis added.)
The prosecutor also stated that Murphy from the Yale sexual abuse clinic “told you about the other tests she [administered] when she heard about the history here. The [sexually transmitted disease] test, and, of course,
Later the prosecutor argued that “the state introduced what [the defendant] had to say at . . . various times to various investigators in this case, over the months of this case, because those details were put in front of you, not because I’m asking you to believe them, I’m asking you to see how unbelievable his protestations of innocence were. And two, those stаtements by the defendant were introduced—those conversations were introduced to show you how fantastic and I would submit slanderous and improbable the things he said about [the complainant]. And I would submit everything he said about [the complainant] over the ensuing months was rebutted. And I would submit, ladies and gentlemen, that the defendant, once the jig was up, once he was told that [the complainant] had come forward ... he started on this campaign of disinformation. Let’s play the [department] workers against the cops. Let’s tell a story about [the complainant] when she was in New York.” (Emphasis added.)
The defendant also has identified the following portions of the prosecutor’s rebuttal argument as constituting impropriety. The prosecutor stated in part: “[R]emember that conversation the defendant had with Ventura back on July 1? And the defendant shows up with those discharge papers from [the mental health clinic] and said here’s the proof that [the complainant] has somе mental issues. I would submit, ladies and gentlemen, the defendant was caught in another whopper by his own witness. I asked . . . Nogelo, was [the complainant] psychotic. Was she schizophrenic? Was she bipolar? Did she have any kind of mental illnesses that would call into question her credibility? And what
II
STANDARD OF REVIEW
The defеndant claims that the prosecutor engaged in impropriety during his final argument. Our review of the transcript discloses that defense counsel failed to object to any portion of the prosecutor’s argument that the defendant claims on appeal was improper. Our Supreme Court has “stated that a defendant who fails to preserve claims of prosecutorial misconduct need not seek to prevail under the specific requirements of State v. Golding,
“Prosecutorial impropriety can occur ... in the course of closing or rebuttal argument.” (Internal quotation marks omitted.) State v. Sherman, 127 Conn. App.
To determine “whether any improper conduct by the [prosecutor] violated the defendant’s fair trial rights is predicated on the factors set forth in State v. Williams [
“[W]hen a defendant raises on appeal a claim that improper remarks by the prosecutor deprived the defendant of his constitutional right to a fair trial, the burden is on the defendant to show, not only that the remarks were improper, but also, that, considered in the light of the whole trial, the improprieties were so egregious that they amounted to a denial of due process.” State v. Payne,
m
PROSECUTORIAL IMPROPRIETY
A
Analysis of the Claimed Impropriety
In keeping with the applicable standard of review, we first determine whether prosecutorial impropriety occurred during final argument. We conclude that it did.
The defendant claims that the prosecutor’s argument that the complainant was poked and prodded by doctors and nurses, had to face the defendant and the jury, had to testify at trial about personal matters was an improper appeal for sympathy for the complainant. He further claims that the prosecutor incited juror anger toward him by blaming him for the complainant having to testify about personal matters due to the things the defendant did to her. We agree that the prosecutor’s argument constituted an improper appeal to the emotions of the jury and diverted its attention from the facts of the case. Any argument about the complainant being required to testify infringed on the defendant’s
The defendant posits that an argument of the nature at issue violates the A.B.A Standards for Criminal Justice: The Prosecution Function (3d Ed. 1993), standard 3-5.8 (c), (d), which provides: “The prosecutor should not make arguments calculated to appeal to the prejudices of the jury. . . . The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence.” See also State v. Williams, supra,
The prosecutor’s argument focused on the hardships the complainant had to endure subsequent to the time she disclosed the defendant’s alleged sexual abuse: she was placed in foster care, endured physical examinations and medical tests, including a pregnancy test, and suffered a miscarriage. The prosecutor did not limit his remarks to hardships to the complainant’s physical well-being. He also argued that the complainant had to come into court to face the defendant and to testify to the jury about highly personal matters because of the things the defendant did to her. In other words, not only did the prosecutor seek to invoke sympathy for the complainant and anger toward the defendant, but he also opined that the defendant was guilty of having committed the crimes with which he was charged.
More significantly, the prosecutor blamed the defendant for the fact that the complainant had to testify at trial, a direct assault on the defendant’s enumerated
“Like cross-examination, face-to-face confrontation [at trial] . . . ensure [s] the integrity of the factfinding process . . . because [i]t is always more difficult to tell a lie about a person to his face than behind his back. . . . Thus, [i]t is widely recognized that physical confrontation contributes significantly, albeit intangibly, to thе truth-seeking process .... In addition, physical confrontation furthers other goals of our criminal justice system, in that it reflects respect for the defendant’s innocence until proven guilty.” (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) State v. Cassidy,
“It is well settled that a violation of constitutional magnitude may be established even though there has not been a complete abridgement or deprivation of the right. A constitutional violation may result, therefore, when a constitutional right has been impermissibly burdened or impaired by virtue of state action that unnecessarily chills or penalizes the free exercise of the right.” Id., 126. “Inviting 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.” Id., 127. The prosecutor twice
The prosecutor’s statement that he “had to ask” the complainant certain questions, improperly denigrated the defendant’s right to require the state to prove its case beyond a reasonable doubt. See, e.g., State v. Coleman,
The defendant claims that it was improper for the prosecutor to argue that he took the complainant to a mental health clinic “because she’s having some anxiety
“The sixth amendment . . . [guarantees] the right to offer the testimony of witnesses, and to compel their attendance, if necessary, [and] is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so that it may decide where the truth lies.” (Internal quotation marks omitted.) State v. Hedge,
Although we fully agree that the defendant had a constitutional right to present a defense, we conclude that the “campaign of disinformation” argument was predicated on the еvidence presented at trial. Statements the defendant made at certain points during the investigation regarding the complainant’s need for mental health counseling, his purchasing the morning after pill and a pregnancy test, his representations about the complainant’s activities during her Memorial Day visit to New York City, and an image on the complainant’s social webpage were rebutted at a later time. A prosecutor properly may argue that a defendant had a motive to he. The argument regarding a campaign of disinformation, therefore, was grounded in the evidence and the reasonable inferences to be drawn from it.
The defendant also claimed that the prosecutor’s use of words such as “whopper” was improper. We conclude that the use of such terms constituted hyperbole, which was not improper given their context. “When making closing arguments to the jury . . . [c]ounsel must be allowed a generous latitude in argument, as
The prosecutor violated the defendant’s constitutional rights by expressing his personal opinion concerning the defendant’s guilt. Twice during final argument the prosecutor stated, with respect to the complainant, “what that man did to her” and, at the end of his rebuttal argument, “what would you expect from someone who molests a twelve year old, even your own daughter.” We find this argument particularly egregious as it not only appealed to the emotions of the jury but also had nothing to do with the evidence. In effect, the prosecutor was telling the jury that the defendant was a despicable person. This is not argument; it is invective.
“[A] prosecutor may not express [his] own opinion, either directly or indirectly, as to the credibility of a witness оr the guilt of the defendant. . . . Such expressions of personal opinion are a form of unsworn and unchecked testimony. . . . These expressions of opinion are particularly difficult for the jury to ignore because of the special position held by the prosecutor.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Alexander,
The defendant also cites one instance in which the prosecutor improperly argued facts not in evidence.
The defendant also claims that, during the state’s rebuttal argument, the prosecutor improperly commented on the defendant’s failure to call a witness in violation of State v. Malave,
B
Due Process Analysis
It is accepted that prosecutorial impropriety can occur during final or rebuttal argument. See State v. Sherman, supra,
Having determined that certain statements made by the prosecutor during his final and rebuttal arguments were improper, we must decide whether the defendant was deprived of his due process right to a fair trial. Pursuant to State v. Williams, supra,
On the basis of our review of the record and the arguments of the parties, we conclude that none of the conduct we have found to constitute prosecutorial impropriety was invited by the defense. The improprieties were limited to the prosecutor’s final argument, particularly rebuttal argument. We conclude that several instances of impropriety were severe because they infringed on the defendant’s sixth and fourteenth amendment rights to present a defense, to сonfront his accuser, and to a public trial. The improprieties were central to the case because there was no corroborating proof that the defendant had sexually assaulted the complainant or that he was, in fact, responsible for her pregnancy. Only the complainant testified to that effect. The defense theory was that the complainant accused the defendant of sexual assault because the defendant was. disciplining the complainant, his daughter, for having sex with boys. The credibility of the complainant was central to the case, and the defendant was entitled to discredit her. Although there was considerable circumstantial evidence of the defendant’s sexual abuse, it was not corroborated by independent evidence. The
C
Analysis of Harm
The prosecutorial impropriety in this case violated several of the defendant’s enumerated constitutional rights, more specifically, the right to present a defense and the right to confrontation at trial. When a prosecutor’s argument impermissibly infringes on a defendant’s rights guaranteed under the federal and state confrontation clauses, “he is entitled to a new trial on those counts unless the state can establish that the objectionable comments were harmless beyond a reasonable doubt.” State v. Cassidy, supra,
As in Cassidy, the defendant and the cоmplainant were the only individuals with firsthand knowledge of the pertinent events. See id. The state’s case rested on the testimony of the complainant, which was not corroborated in any material respect. The jury’s task was to determine whether the complainant’s testimony
Having applied the Williams factors to the case at hand, we conclude that: (1) the prosecutor’s argument was not invited by the defense; (2) the improprieties were limited to final argument, including rebuttal, but included some of the last words the jury heard from the state; (3) the impropriety regarding what the dеfendant did to the complainant was central to the critical issue in the case, which is whether the defendant sexually abused the complainant; (4) the state’s case was only moderately strong in that there was no corroborating evidence of the defendant’s alleged sexual assaults although the state presented circumstantial evidence, including constancy of accusation evidence, that supported the complainant’s accusation; (5) because defense counsel failed to object to the prosecutor’s impropriety, the court took no curative measures; and (6) although defense counsel apparently did not perceive that the prosecutor’s argument warranted objection, we conclude that the improprieties were severe.
“The right to confrontation is fundamental to a fair trial under both the federal and state constitutions. . . . It is expressly protected by the sixth and fourteenth amendments to the United States constitution .... and by article first, § 8, of the Connecticut constitution. . . . The right of physical confrontation is a . . . fundamental component of the [federal and state confrontation] clauses . . . .” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Cassidy, supra,
To summarize, in this case, the prosecutor not only made an emotional appeal to the jury to evoke sympathy for what the complainant endured at the defendant’s hand, but also implied that the defendant was at fault for compelling her to suffer the indignity of testifying at trial. The prosecutor argued that he “had to ask” the complainant certain embarrassing questions ignoring the fact that the state had to bear the burden of proof that the defendant was guilty as charged beyond a reasonable doubt. “Inviting the fact finder to draw an inference adverse to a defendant solely on account of the defendant’s assertion of a constitutional right impermis-sibly burdens the free exercise of that right and, therefore, may not be tolerated.” Id., 127. Because the prosecutor argued that the complainant had to endure the hardship of coming to court to testify because of what the defendant had done to her, he “invited the jury to draw an inference adverse to the defendant solely because of the defendant’s exercise of his constitutional right to confront the [complainant].” Id., 127-28.
The judgment is reversed and the case is remanded for a new trial.
In this opinion the other judges concurred.
Notes
The sixth amendment to the United States constitution provides, in relevant part: “In all criminal prosecutions, the accused shаll enjoy the right to a speedy and public trial, by an impartial jury . . . and ... to be confronted with the witnesses against him . . . and to have the assistance of counsel for his defense.” See also Faretta v. California,
Article first, § 8, of the constitution of Connecticut provides in relevant part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel ... to be confronted by the witnesses against him . . . and in all prosecutions by information, to a speedy, public trial by an impartial jury.”
Plan B is the commercial name for a form of oral contraception known as the morning after pill.
At various times, the defendant identified a number of boys with whom he claimed the complainant had had sexual intercourse. None of the boys identified by the defendant confirmed his claims.
At trial, Montelli testified that it was not surprising that the complainant did not disclose to her that she had had sexual intercоurse with two boys. According to Montelli, the disclosure of sexual abuse often is delayed and is a gradual process affected by many factors, such as the complainant’s age, the extent of emotional support provided, the opportunity to tell, the relationship to the abuser, and whether the abuser ever made threats.
According to Murphy, there was no fetal material in the debris she was able to recover from the complainant. The complainant bled prior to being taken to the hospital.
The defendant did not testify at trial.
In contrast to her statement to Montelli that no one but the defendant had ever touched her sexually, at trial, the complainant testified that she had sex with M and H in late 2008. M testified consistently with the complainant’s testimony about their relationship.
Also at trial, the complainant testified during the morning that she did not know who had impregnated her; but during the afternoon, she testified that the defendant had impregnated her. The complainant explаined that she misspoke during her morning testimony due to nervousness.
In the alternative, the defendant asked this court to grant him a new trial pursuant to our supervisory authority; see Practice Book § 60-2; in light of an ongoing pattern of impropriety on Pepper’s part. See State v. Payne,
In concluding that the prosecutor’s arguments were improper, we do not minimize the hardships and challenges faced by the complainant, which we acknowledge were considerable. While the substance of an argument concerning the effect a crime had on the victim may be appropriate during the sentencing phase of a trial, it is simply inappropriate for a prosecutor to suggest to the jury that the defendant should be punished for exercising his right to confront his accuser at a public trial. As the Texas Court of Appeals stated: “The right to a jury trial is guaranteed under the Sixth and Fourteеnth Amendments. [A defendant] had every right to invoke his Sixth Amendment right to jury trial and his right to confront the witnesses against him. A penalty cannot be imposed for the exercise of a constitutional right. See Spevack v. Klein,
The defendant also takes exception to the prosecutor’s argument that he “slandered” the complainant. We disfavor the use of the word “slander”
During his final argument, defense counsel referred to the fact that the state had failed to call one of the complainant’s girlfriends to testify about a sleepover party that supposedly took place at the girl’s home on May 8-9, 2009. Defense counsel stated in part: “But no one came in here and got on the stand and said there wasn’t a sleepover. . . . The only one that says that didn’t happen, of course, is the complaining witness.” The prosecutor responded to the argument by setting out the evidence and then arguing that the defense called a second girl to testify about a conversation concerning a sleepover at the girlfriend’s house, but the girlfriend “was never called. If she slept over [at the girlfriend’s] house, why didn’t we hear from” her? The record discloses that each side argued that the other had failed to call a witness.
Defense counsel’s failure to object is significant. We remind defense counsel of our Supreme Court’s prior admonition. “We emphasize the responsibility of defense counsel, at the very least, to object to perceived prosecu-torial improprieties as they occur at trial, and we continue to adhere to the well established maxim that defense counsel’s failure to object to the prosecutor’s argument. . . when [it was] made suggests that defense counsel did not believe that [it was ] unfair in light of the record of the case at the time.” (Internal quotation marks omitted.) State v. Stevenson,