STATE OF CONNECTICUT v. CHARLES JOHNSON
(AC 28537)
Appellate Court of Connecticut
Argued February 7—officially released April 22, 2008
107 Conn. App. 188
Bishop, Beach and Berdon, Js.
Theresa Anne Ferryman, senior assistant state‘s attorney, with whom, on the brief, was Michael L. Regan, state‘s attorney, for the appellee (state).
Opinion
BISHOP, J. The defendant, Charles Johnson, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of
The jury reasonably could have found the following facts. At the time of trial, the victim, C,2 was fifteen years old and was a junior in high school. Prior to the tenth grade, C had attended a portion of seventh grade, eighth grade and ninth grade in public schools in California. Before moving to California in the middle of the seventh grade, C had resided in Norwich. C testified that while living in Norwich, her family, which included her mother, father and brother, was active in the Norwich Assembly of God church. The defendant, who was a pastor, was the leader of the congregation. C testified that she attended church services and family and youth social functions on a regular basis, and described a close relationship between her family and the defendant and his family. Families regularly would gather at the defendant‘s home for church related social functions.
C testified that during one of these social gatherings at the defendant‘s home, the defendant grabbed her when she ran into him at the top of the stairs on the second floor, started tickling her, and then groped her and put his hands in her pants and his finger in her vagina. C indicated that during the incident, she was kicking the defendant and telling him to stop, which
C testified that she first disclosed the incident to a man with whom she was on a church mission trip while she was living in California. On that same trip, she also told a counselor leader and his wife. Shortly after she returned home from that trip, C told her mother, R, who, in turn, told C‘s father, about the incidents with the defendant. The police were not contacted because C did not want to take any action at that time. When C and her family moved back to Connecticut, C attended E.O. Smith High School, where she disclosed the incidents involving the defendant to an English teacher after reading an assigned book involving a girl who had been raped and killed. The disclosure to the English teacher led to the involvement of law enforcement.
Thereafter, the defendant was charged with sexual assault in the first degree and risk of injury to a child. The jury found the defendant guilty of bоth charges, and the defendant received a total effective sentence of ten years of incarceration followed by five years of special parole. This appeal followed.
I
The defendant first claims that the court abused its discretion in failing to instruct the jury as requested on the credibility of child witnesses. Specifically, the defendant claims that the court should have given the requested instruction because C‘s testimony was the sole evidence against him and that the “he said-she
The decision of whether to charge on the credibility of a child witness lies in the discretion of the trial court. State v. James, 211 Conn. 555, 571, 560 A.2d 426 (1989). As later noted by this court, the court in James “adopted the prevailing view that allows the trial judge to exercise his or her discretion in determining whether the jury should receive such a special instruction, and, if so, its nature.” State v. Abrahante, 56 Conn. App. 65, 80, 741 A.2d 976 (1999).
“No abuse of discretion was found in such matters where the victim was twelve years old at the time of trial. [State v. James, supra, 211 Conn. 571]; see State v. Hayes, 20 Conn. App. 737, 748, 570 A.2d 716, cert. denied, 215 Conn. 802, 574 A.2d 218 (1990). Nor was an abuse of discretion concluded where the witness or victim was between eleven and thirteen years old. State v. Angell, 237 Conn. 321, 330-31, 677 A.2d 912 (1996) (twelve years old); State v. Osborn, 41 Conn. App. 287, 290, 676 A.2d 399 (1996) (eleven and thirteen years old).” State v. Abrahante, supra, 56 Conn. App. 80.
At the time of trial, C was fifteen years old. In denying the defendant‘s requested charge, the court indicated that “[t]he jury has had the opportunity to have seen and heard [C], [and] her intellectual ability and her real age is something for the jury to assess....” Because the court can most accurately determine those instances where a child witness instruction would be appropriate, we cannot conclude that the court abused its broad discretion in refusing to instruct as requested.4
The defendant next claims that the court improperly prohibited him from questioning R regarding an alleged prior inconsistent statement she made on the basis that it was irrelevant. We find no fault in the court‘s evidentiary ruling.
During his cross-examination of R, the defendant sought to ask the following question: “Isn‘t it true that Terry Warner said to you, ‘do you think [C] was molested by [the defendant],’ and [you] responded, ‘Oh, God, no, we‘ve talked about that.‘” Although it is difficult to ascertain the precise purpose of the defendant‘s offer in this regard, it appears that the defendant wanted to ask the proposed question to show that, at some point in time, R did not think that the defendant had molested C.5 The court sustained the state‘s objection to the offer because what R thought was irrelevant.
“Evidence is admissible only if it is relevant.... The trial court is given broad discretion in determining the relevancy of evidence аnd its decision will not be disturbed absent a clear abuse of that discretion.... Section 4-1 of the Connecticut Code of Evidence provides in pertinent part that evidence is relevant if it has any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence.... Moreover, [t]he proffering party bears the burden of establishing the relevance of the offered testimony. Unless a proper foundation is established, the evidence is irrelevant.” (Internal quotation marks omitted.) State v. Skidd, 104 Conn. App. 46, 63, 932
Here, the thoughts or beliefs of R as to whether C had been molested by the defendant had no bearing on the question for the jury of whether the defendant did, in fact, sexually assault C. As the court noted: “[I]t‘s for the jury to determine the credibility of [C].” Because the opinion of R did not tend to make the sexual assault of C more or less probable, the court properly determined that the proffer was irrelevant.
III
The defendant next claims that the evidence was insufficient to prove beyond a reasonable doubt that he committed the offenses of which he was convicted. Specifically, the defendant contends that because C‘s testimony was inconsistent with her prior statements, the jury could not have found him guilty beyond a reasonable doubt. We are not persuaded.
In reviewing sufficiency of the evidence claims, we apply a two part test. “First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upоn the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Fauntleroy, 101 Conn. App. 144, 147-48, 921 A.2d 622 (2007). “The inquiry on appeal is whether the evidence is sufficient to prove the elements of the crimes.” State v. Mezrioui, 26 Conn. App. 395, 398, 602 A.2d 29, cert. denied, 224 Conn. 909, 617
Here, the defendant does not claim that the evidence was insufficient in that the state failed to prove one or more of the elements of the charged offenses. Rather, he contends that the only evidence against him was the testimony of C and that “there was no possible way a jury could rely on her testimony beyond a reasonable doubt.” Because the jury was free to credit all or part of C‘s testimony, and it is not our рrovince to second-guess the jury‘s judgment as to C‘s credibility, the defendant‘s claim fails.
IV
The defendant finally claims that the prosecutor improperly referenced religion in her final argument. The defendant‘s claim in this regard is twofold. First, the defendant claims that the state‘s reference to religion improperly bolstered C‘s testimony, that it was unduly passionate and inflammatory, that it improperly invaded the province of the jury and that it constituted unfair comment on the defendant‘s failure to testify. Second, the defendant claims that the state‘s references to religion violated the federal constitutional prohibition against the establishment of religion and the Connecticut constitutional prohibition against religious preference.
In her final argument to the jury, the prosecutor stated: “You‘re going to hear a lot about the issue of
Later, when discussing C‘s parents, the prosecutor stated: “The question of a financial gain has been touched upon during the evidence. [C‘s] father is an attorney; he is well aware of his rights and remedies. Two years have passed, and no lawsuit has been filed based on these claimed incidents. First of all, I‘d like you to think about the idea that thеse two very involved, devout and obviously very earnest parents would put [C] through this for the sake of financial gain. I don‘t think that‘s reasonable but, ultimately, again, that‘s something you need to consider.”
A
As noted, the defendant claims that the state improperly used religion in its final argument to the jury.6 “Prosecutorial [impropriety] claims invoke a two step analysis. First, the reviewing court must determine whether the challenged conduct did, in fact, constitute
“Because the claimed prosecutorial [impropriety] occurred during closing arguments, we advance the following legal principles. [P]rosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments.... In determining whether such [an impropriety] has occurred, the reviewing court must give due deference to the fact that [c]ounsel must be allowed a generous latitude in аrgument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument.” (Citation omitted; internal quotation marks omitted.) State v. Skidd, supra, 104 Conn. App. 64-65. “[A] prosecutor may not appeal to the emotions, passions and prejudices of the jurors.... When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal.... Therefоre, a prosecutor may argue the state‘s case forcefully, [but] such argument must be fair and based on the facts in evidence and the reasonable inferences to be drawn therefrom.” (Internal quotation marks omitted.) State v. Ceballos, 266 Conn. 364, 394, 832 A.2d 14 (2003).
Our Supreme Court first addressed the use of religious references in prosecutors’ arguments in State v. Ceballos, supra, 266 Conn. 364. In Ceballos, “the statements made by the [prosecutor] during his summation
Similarly, in State v. Camacho, 282 Conn. 328, 924 A.2d 99, cert. denied, 552 U.S. 956, 128 S. Ct. 388, 169 L. Ed. 2d 273 (2007), the defendant claimed that the prosecutor‘s use of religious references to the biblical story of Cain and Abel and to the choice between good
Here, unlike the circumstances in Ceballos and Camacho, religious practice was within the factual context of the case. Therefore, the prosecutor‘s mention of C‘s and her parents’ religiousness or devoutness had an evidentiary basis. Additionally, unlike the comments under scrutiny in Ceballos and Camacho, the comments made by the prosecutor in this case were not emotionally charged or passionate, and the prosecutor‘s suggestion that C‘s and her parents’ devoutness could be considered in assessing their credibility did not improperly invade the province of the jury. Furthermore, the prosecutor‘s references to the devoutness of C and her parents were embedded in lengthy recitations of other factors for the jury‘s consideration. The prosecutor did not invoke religious figures or make any references to a divinity as a means to inflame the jury or to invoke a higher being to influence their deliberations as the prosecutor did in Ceballos. In fact, the prosecutor‘s comment, as to C, could fairly be construed as a comment on her ability to appreciate the moral duty to tell the truth. See State v. Aponte, 249 Conn. 735, 757, 738 A.2d 117 (1999).
Furthermore, the prosecutor‘s religious references were no more than appeals to the common sense of the jury. On the basis of the evidence that C and her parents were religious and were very involved in religious activity, the prosecutor‘s comments can fairly be seen, not as an appeal to a higher being or a preference for religion but simply a common sense observation
The defendant also claims that by noting that C had testified under oath, the proseсutor was indirectly making reference to the defendant‘s failure to testify. We are not persuaded.
“[T]he Fifth Amendment, in its direct application to the Federal Government, and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused‘s silence or instructions by the court that such silence is evidence of guilt.... [T]he limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument.” (Citations omitted; internal quotation marks omitted.) State v. Rowe, 279 Conn. 139, 159-60, 900 A.2d 1276 (2006). As to the proper analysis of this claim, the court in State v. Lemon, 248 Conn. 652, 731 A.2d 271 (1999), opined: “As we repеatedly have stated, [i]n determining whether a prosecutor‘s comments have encroached upon a defendant‘s [fifth amendment] right to remain silent, we ask: Was the language used manifestly intended to be, or was it of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify?” (Internal quotation marks omitted.) Id., 659.
In the case at hand, the record reveals that the prosecutor made no mention whatsoever of the defendant‘s failure to testify, nor did she draw any comparison regarding the presence or absence of witnesses at triаl or between those who may have taken an oath or those
We recognize, however, that our Supreme Court in Ceballos strongly admonished the state to be wary of interjecting religion into a criminal trial. Thus, even though in this instance we believe the prosecutor‘s comments were grounded in the evidence, noninflammatory and noninvasive, we will assess whether these comments, in toto, deprived the defendant of a fair trial.
“In determining whether prosecutorial [impropriety] amount[ed] to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the [impropriety] was invited by defense conduct or argument ... the severity of the [impropriety] ... the frequency of the [impropriety] ... the centrality of the [impropriety] to the critical issues in the case ... the strength of the curative measures adopted ... and the strength of the state‘s case.”
“This does not mean ... that the absence of an objection at trial does not play a significant role in the application of the Williams factors. To the contrary, the determination of whether a new trial or proceeding is warranted dеpends, in part, on whether defense counsel has made a timely objection to any [incident] of the prosecutor‘s improper [conduct]. When defense counsel does not object, request a curative instruction or move for a mistrial, he presumably does not view the alleged impropriety as prejudicial enough to jeopardize seriously the defendant‘s right to a fair trial.” (Internal quotation marks omitted.) State v. Stevenson, supra, 269 Conn. 575. “[T]he fact that defense counsel did not object to one or more incidents of [impropriety] must be considered in determining whether and to what extent the [impropriety] contributed to depriving the defendant of a fair trial and whether, therefore, reversal is warranted.” Id., 576.
“To determine whether the defendant was deprived of his due process right to a fair trial, [the reviewing court] must determine whether the sum total of [the prosecutor‘s] improprieties rendered the defendant‘s [trial] fundamentally unfair, in violation of his right to due process.... The question of whether the defendant has been prejudiced by prosecutorial [impropriety], therefore, 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. George J., 280 Conn. 551, 604, 910 A.2d 931 (2006), cert. denied, 549 U.S. 1326, 127 S. Ct. 1919, 167 L. Ed. 2d 573 (2007).
First, we conclude that there is nothing in the record to suggest that the claimed improprieties were invited
The claimed improprieties in this case were neither frequent nor severe because they constituted a very small portion of the state‘s final argument. See State v. Pouncey, 40 Conn. App. 624, 636, 673 A.2d 547 (1996), aff‘d, 241 Conn. 802, 699 A.2d 901 (1997). Although the court did not issue any specific curative instruction as to the religious references made by the prosecutor, the court did instruct the jury to assess witness credibility not only in terms of appearance, demeanor and bias, but also in terms of the witness’ ability tо recall events and the testimony‘s harmony with the whole of the evidence presented. These general instructions likely cured any impropriety. Unless there is an indication to the contrary, we presume that the jury followed the court‘s instructions. See State v. Warholic, 278 Conn. 354, 401, 897 A.2d 569 (2006). Furthermore, although “a general instruction does not have the same curative effect as a charge directed at a specific impropriety, particularly when the [impropriety] has been more than an isolated occurrence” (internal quotation marks omitted); id.; when “the defendant fail[s] ... to object to this comment ... to bring [the improper comment] to the attention of the trial court, [the defendant] bears
As to the defendant‘s claim that the prosecutor‘s comments improperly emphasized the fact that he did not testify, our Supreme Court has repeatedly stаted that in determining whether a prosecutor‘s comments have encroached upon a defendant‘s fifth amendment right to remain silent, we ask: “Was the language used manifestly intended to be, or was it of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify?” (Internal quotation marks omitted.) State v. Rowe, supra, 279 Conn. 160. Here, not only did the prosecutor never mention the fact that the defendant did not testify, but it is tenuous to suggest that her comment about C having taken an oath was intended to be, or could be construed as, a comment on the defendant‘s failure to testify. Additionаlly, the court instructed the jury that no unfavorable inferences could be drawn from the fact that the defendant did not testify.
Thus, even if we were to conclude that the prosecutor‘s comments during final argument were improper, the defendant was not prejudiced by the impropriety and was not deprived of his right to a fair trial.
B
The defendant finally claims that the prosecutor‘s references to religion during final argument violated the establishment clause of the federal and state constitutions. Because the defendant raises this claim for the
The judgment is affirmed.
In this opinion BEACH, J., concurred.
BERDON, J., concurring in the result. I agree with parts I, II and III of the majority opinion.
I part company from the majority with respect to part IV. In part IV, the majority gives its approval to the prosecutor‘s final argument, in which she argued with respect to C, the complaining witness, as follows: “She has taken an oath, an oath that you might find has real significance for her based on what is undisputedly a very religious and devout life. That‘s something for you to consider when you consider her taking the oath and making these statements under oath.”
The plain import of the prosecutor‘s remark directed the jury‘s attention to the fact that the complaining witness had given evidence under oath before the jury аnd, implicitly, that the jury had not heard from the defendant, Charles Johnson.
Furthermore, I am also deeply concerned that the foregoing argument with respect to religion appealed to the emotions of the jurors and improperly usurped the province of the jury. Here, the majority concludes that the prosecutor‘s remarks regarding C and her parents’ religiousness and devoutness were justified because such comments “had an evidentiary basis.” I fail to comprehend the evidentiary basis supporting such comments in a case in whiсh the defendant has been charged with sexual assault and risk of injury to a child.
Nevertheless, I do not dissent because the defendant did not object to the prosecutor‘s argument when it was made, nor did he move for a new trial. Rather, I leave this matter to another forum for correction of an injustice.
Accordingly, I reluctantly concur in the result.