STATE OF CONNECTICUT v. KENNETH M. WEATHERSPOON
SC 20134
Supreme Court of Connecticut
July 30, 2019
Robinson, C. J., and Palmer, McDonald, D‘Auria, Mullins, Kahn and Ecker, Js.
Argued October 19, 2018
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Syllabus
A prosecutor makes a tailoring argument when he or she attacks the credibility of a testifying defendant by asking the jury to infer that the defendant has fabricated his testimony to conform to the testimony of previous witnesses. A tailoring argument is generic when the prosecutor asks the jury to make the inference solely on the basis of the defendant‘s presence at trial and his opportunity to fabricate his testimony, whereas a tailoring argument is specific when the prosecutor refers to evidence from which the jury reasonably might infer that the defendant fabricated his testimony to conform to the state‘s case as presented at the defendant‘s trial.
Convicted, following a jury trial, of sexual assault in a cohabiting relationship and assault in the third degree, the defendant appealed from the judgment of conviction, claiming that his right to confrontation under
- The defendant could not prevail on his unpreserved claim that the prosecutor‘s statement during closing argument that the jury should discredit the defendant‘s testimony because it had been made “with the benefit of hearing all the testimony that came before” constituted impermissible generic tailoring and, therefore, violated his right to confrontation under
article first, § 8, of the Connecticut constitution : the prosecutor‘s tailoring argument, when viewed in the context of his other remarks during closing argument, was specific rather than generic, in that it was based expressly on evidence in the record that, if credited, would support a claim of tailoring, as the challenged statement was immediately preceded by the prosecutor‘s reference to the conflicting versions of the attack to which the defendant and the victim testified, and was immediately followed by the prosecutor‘s reference to the discrepancy between C‘s testimony that the defendant claimed to have no memory of the incident and the defendant‘s testimony that C was wrong and that he merely had declined to give C a statement; accordingly, because the prosecutor made a specific, rather than a generic, tailoring argument that was linked to the evidence and not to the defendant‘s mere presence at trial, this court did not reach the defendant‘s claim that the prosecutor‘s generic tailoring argument violated his right to confrontation under the state constitution. - This court rejected the defendant‘s alternative claims that, in light of the prosecutor‘s statement that the jury should discredit the defendant‘s testimony because it had been made “with the benefit of hearing all the testimony that came before,” his conviction should be reversed on the basis of prosecutorial impropriety, under the doctrine of plain error, or in the exercise of this court‘s supervisory authority: there was no merit to the defendant‘s claim that the prosecutor‘s statement rose to the level of a prosecutorial impropriety, as it was tied to evidence permitting an inference of tailoring; moreover, the challenged statement did not constitute plain error that required reversal of the judgment of conviction, as tailoring arguments are permissible under the federal constitution; furthermore, this court declined the defendant‘s request to exercise its supervisory authority to reverse his conviction and establish a rule prohibiting generic tailoring arguments, as the defendant failed to establish that the challenged statement constituted a generic tailoring argument or caused him to suffer any injustice.
- The defendant could not prevail on his claim that the prosecutor deprived him of his due process right to a fair trial when he purportedly conveyed to the jury that it must find that C had lied in order to find the defendant not guilty, because, even if the prosecutor‘s remarks were improper, there was no reasonable likelihood that the jury would have returned a different verdict in the absence of those improprieties: the prosecutor‘s remarks were invited by the defendant‘s assertion at trial that C misrepresented what the defendant had said regarding his memory of the incident and were an attempt to characterize the defendant‘s claim as such, the improprieties were not frequent or severe, defense counsel did not object to the allegedly improper remarks or ask the court to take any curative measures, the court properly instructed the jury on witness credibility and police officer testimony both before and after the presentation of evidence, although the strength of the state‘s case was not overwhelming and the alleged improprieties related to the critical issue of witness credibility, the victim‘s testimony regarding her version of the events directly was corroborated by photographic, video and testimonial evidence, and the fact that the jury found the defendant not guilty of the charge of second degree strangulation demonstrated that it independently assessed the defendant‘s credibility notwithstanding the alleged improprieties.
Argued October 19, 2018—officially released July 30, 2019
Procedural History
Substitute information charging the defendant with the crimes of sexual assault in a cohabiting relationship, strangulation in the second degree and assault in the third degree, brought to the Superior Court in the judicial district of New London and tried to the jury before Jongbloed, J.; verdict and judgment of guilty of sexual assault in a cohabiting relationship and assault in the third degree, from which the defendant appealed. Affirmed.
Lawrence J. Tytla, supervisory assistant state‘s attorney, with whom, on the brief, was Michael L. Regan, state‘s attorney, for the appellee (state).
Opinion
ECKER, J. The defendant, Kenneth M. Weatherspoon, was convicted after a jury trial of sexual assault in a cohabiting relationship in violation of
Upon careful review of the record, we affirm the judgment of conviction. We conclude that the prosecutor‘s tailoring comment constituted a specific, rather than a generic, tailoring argument because it was substantiated by express reference to evidence from which the jury reasonably could infer that the defendant had tailored his testimony. We therefore decline the defendant‘s request to decide whether generic tailoring arguments violate the state constitution. With respect to the alleged improprieties under Singh, for the purposes of our analysis, we assume, without deciding, that Singh was violated, but we nonetheless conclude that the defendant was not deprived of his due process right to a fair trial. We therefore affirm the judgment of conviction.
I
We begin by setting forth the pertinent facts and relevant procedural history. The complainant, A,3 and the defendant met while working for the United States Navy. They dated for a lengthy period and eventually moved into an apartment together. At trial, A testified that, on November 5, 2015, the two began to engage in consensual oral sex in the living room of their apartment. During the encounter, however, the defendant became forceful and aggressive, and he ignored A‘s request that he stop. The defendant began to bite A‘s neck and buttocks despite her plea that he was hurting her. He then told her to go into the bedroom, where he continued to physically abuse her despite her efforts to leave the room. The defendant pushed A
Upon her arrival at work, A‘s coworker and supervisor observed marks on her neck. A disclosed to her coworker that her boyfriend had forced her to perform oral sex. After the same coworker overheard A talking on the phone about the assault allegations, he reported the information to his superiors pursuant to Navy protocol. A then spoke with her supervisor and the Navy‘s Sexual Assault Response Coordinator. She slept overnight in her superior‘s office and returned to her apartment on the morning of November 6, 2015, after her shift had ended.
Later that morning, Officers Bridget Nordstrom, Jesse Comeau, and Darren Kenyon, all of the Groton Police Department, arrived at the apartment to investigate the alleged incident. Nordstrom spoke with A in the apartment while Comeau and Kenyon spoke with the defendant on the balcony. The content of the defendant‘s conversation with Comeau and Kenyon, as set forth in detail later in this opinion, is disputed. The defendant subsequently was arrested and charged with sexual assault in a cohabiting relationship in violation of
At trial, in addition to testifying in detail about the events of November 5, 2015, A explained her belief that the defendant had been drinking heavily before he assaulted her. The jury also heard testimony from A‘s coworkers about the marks on her neck and her partial disclosure of the incident. Photographs of A‘s injuries, which corroborated her testimony of the assault, were introduced into evidence, and four video recordings from the defendant‘s cell phone, taken by him at various times during the incident, were shown to the jury. A further testified that the sexual assault occurred between the third and fourth video, and the jury reasonably could have found that the noticeable change in her appearance between those two videos, specifically her hair being “messed up,” supported her story.
At trial, Comeau testified that, on the day after the incident, the defendant told him and Kenyon that he had been drinking the previous day and did not remember what had happened. Comeau explained: “We asked him if he drank enough that he considered himself to be blacked out, and he said no, he didn‘t think so, but he did not recall any details.” Comeau also testified that the defendant “did not recall making the video.”
After the state rested, the defendant testified on his own behalf. The defendant acknowledged that he and A had engaged in oral sex on the date in question but said that it was initiated by A. Further, he characterized it as completely consensual in nature and testified that he was not forceful or rough during the oral sex and
“Q. Did [Comeau] ever ask you to provide any details of the day‘s events, the day before?
“A. He asked me to—yeah. He said, would you like to speak to me about what happened?
“Q. What did you say?
“A. No.
“Q. Why‘d you say no?
“A. Because there‘s a stigma with the police that if you tell them anything, no matter it be good or bad, it‘s definitely going to haunt you later.
“Q. Okay.
“A. And without any legal [representation] whatsoever, I wasn‘t gonna—I wasn‘t gonna go through that.
“Q. Okay.
“A. Because it‘s two officers outside and me. They could say I said anything.
“Q. Right. So you thought it [would be] better to keep quiet.
“A. Right.”
The defendant acknowledged that he unlocked his phone for the officers so that they could see the videos.
The prosecutor‘s cross-examination of the defendant involved the following relevant exchange:
“Q. . . . [T]his is [the] first time you‘ve shared your account of what happened on November 5, 2016, publicly, is it not?
“A. With—within this type of environment, yes. I had a lawyer previously before I had [my current trial counsel].
“Q. You never shared any of this information with the police when they were investigating the matter, did you?
“A. No.
“Q. In fact, when the officers took you outside and spoke to you, you told them that you didn‘t remember anything about what happened the day before; isn‘t that what you told them?
“A. No.
“Q. That‘s not what you told them?
“A. No.
“Q. You‘ve seen the police report in the course of your preparation for the case, and now you‘re telling us that you didn‘t tell them that you didn‘t remember?
“A. They‘re saying that I told them I didn‘t remember.
“Q. Oh, and you‘re saying that they‘re wrong.
“A. Yes.
“Q. And you just chose not to give any details or any account of what happened on November 5, because of this apprehension you have about the police and how they might twist or misconstrue what happened; is that right?
“A. That‘s exactly what happened, isn‘t it?
“Q. Now you get to wait and come here and tell us for the first time your account of what happened. “A. Yes.”
The defendant also repeated on cross-examination that he told the police he had been drinking and that the officers had asked him “if [he] had had enough alcohol to have blacked out . . . .” The following exchange occurred at the end of the cross-examination:
“Q. And your testimony is you never told the police that you had no memory of what happened?
“A. Correct.
“Q. You had a memory, you just chose not to share it with them.
“A. Correct.
“Q. Did you lie to them?
“A. No.
“Q. You told them you didn‘t remember.
“A. They said I told them I didn‘t remember.
“Q. But that‘s not what you said?
“A. No. I did not tell them I did not remember.
“Q. Did they ask you to give a statement?
“A. Yes.
“Q. And what was your response to that?
“A. No.
“Q. Did you give them any reason why you didn‘t want to give a statement?
“A. No.”
In closing argument, the prosecutor referenced the testimony of Comeau regarding the defendant‘s alleged lack of memory of the events at issue, and pointed out that both Comeau and the defendant acknowledged that the officers had asked the defendant whether he had blacked out. The prosecutor told the jury that it made sense that the officers had inquired about blacking out in response to the defendant‘s statement to them that he could not remember the events of that day. The prosecutor told the jury, “The defendant would have you believe that the officer lied about that. He would have you believe that the officer came in and lied . . . .” The prosecutor continued: “You really have to evaluate all of [the defendant‘s] testimony and, again, ask yourselves whether it‘s credible. . . . Ask [yourselves] whether his claim that the officers lied was credible. I submit to you it isn‘t, and I think his credibility is a good way of evaluating [A‘s] credibility.”
In his rebuttal argument, the prosecutor again attempted to discredit the defendant‘s testimony. The prosecutor asked the jury to assess the credibility of the defendant and A with regard to their respective versions of events and to assess the relative credibility of the defendant “vis-à-vis” Officer Comeau. The prosecutor argued: “Finally, you know, when it comes to the he said/she said, you know, I‘ve talked about that before, but that is really an artificial construct. That is what the defense would like this case to be, because, then, it‘s a scale and it‘s he said this, she said that, therefore, we can‘t have proof beyond a reasonable doubt. There are a couple things I‘d like you to keep in mind. Evaluate [A‘s] demeanor throughout the testimony, evaluate the defendant‘s. Evaluate how he came across. Look at the details of his testimony, which I would submit to you was entirely self-serving with the benefit of hearing all the testimony that came before.
“You should also think about his interaction with Officer Comeau. Officer Comeau was very emphatic, he was absolutely clear that the defendant said he had no memory
The jury found the defendant guilty of sexual assault in a cohabiting relationship and assault in the third degree, and not guilty of strangulation in the second degree. He was sentenced to a total of fourteen years of incarceration, execution suspended after nine years, and ten years of probation. The defendant appealed to the Appellate Court and we transferred the appeal to this court pursuant to
II
The defendant‘s first set of claims on appeal are premised on the contention that the prosecutor made an impermissible generic tailoring argument during closing argument when he suggested that the jury should discredit the defendant‘s version of events because he had testified “with the benefit of hearing all the testimony that came before.” Part A of this section describes tailoring in the context of a criminal trial and examines the case law that has developed in response to past constitutional challenges to this type of argumentation. Part B addresses the defendant‘s claim that the tailoring argument made by the prosecutor in the present case violated his right to confrontation under
A
A prosecutor makes a tailoring argument when he or she attacks the credibility of a testifying defendant by asking the jury to infer that the defendant has fabricated his testimony to conform to the testimony of previous witnesses. See Portuondo v. Agard, 529 U.S. 61, 73, 120 S. Ct. 1119, 146 L. Ed. 2d 47 (2000). The term most frequently is used to refer to a prosecutor‘s direct comment during closing argument on the defendant‘s opportunity to tailor his testimony, although a prosecutor sometimes also will use cross-examination to convey a discrediting tailoring message to the jury.4 There are two types of tailoring arguments: generic and specific. The former occurs when the prosecutor argues the inference solely on the basis of the defendant‘s “presence at trial and his accompanying opportunity to fabricate or tailor his testimony.” State v. Alexander, 254 Conn. 290, 300, 755 A.2d 868 (2000); see also State v. Daniels, 182 N.J. 80, 98, 861 A.2d 808 (2004) (“[g]eneric accusations occur when the prosecutor, despite no specific evidentiary basis that [the] defendant has tailored his testimony, nonetheless attacks the defendant‘s credibility by drawing the jury‘s attention to the defendant‘s presence during trial and his concomitant opportunity to tailor his testimony“). A
The constitutionality of tailoring arguments has been the subject of significant judicial attention over the past twenty-five years. The primary concern under the federal constitution has been whether tailoring arguments unduly burden the defendant‘s sixth amendment5 right to confrontation at trial—a fundamental component of the constitutional guarantee that is understood to include “the accused‘s right to be present in the courtroom at every stage of his trial.” Illinois v. Allen, 397 U.S. 337, 338, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970).
Our court first addressed the constitutionality of tailoring arguments in State v. Cassidy, 236 Conn. 112, 155, 672 A.2d 899, cert. denied, 519 U.S. 910, 117 S. Ct. 273, 136 L. Ed. 2d 196 (1996). We held in Cassidy that generic tailoring arguments violate the sixth amendment‘s confrontation clause; id., 120; but specific tailoring arguments are constitutionally permissible because they are “linked solely to the evidence and not, either directly or indirectly, to the defendant‘s presence at trial.” Id., 128 n.17.6 This court‘s reasoning was straightforward: “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. Cassidy, however, reassured the state that the prohibition against generic tailoring arguments did not prevent the prosecution from aggressively attacking a testifying defendant‘s credibility. We stated that “the prosecutor, in his closing argument, was free to challenge the defendant‘s version of the facts by reference to any evidence properly adduced at trial. . . . [H]owever, he was not free to assert that the defendant‘s presence at trial had enabled him to tailor his testimony to that of other witnesses. Such argument exceeded the bounds of fair comment because it unfairly penalized the defendant for asserting his constitutionally protected right to confront his accusers at trial.” (Footnote omitted.) Id., 128-29.
Four years later, the sixth amendment underpinning of Cassidy was removed when the United States Supreme Court
The Portuondo majority emphasized that its ruling was limited to federal constitutional grounds and did not address whether generic tailoring arguments were “always desirable as a matter of sound trial practice,” which, the court explained, was an inquiry “best left to trial courts, and to the appellate courts which routinely review their work.” Portuondo v. Agard, supra, 529 U.S. 73 n.4. This caveat also was noted in a concurrence by Justice Stevens, in which he expressed the view that generic tailoring arguments “should be discouraged rather than validated,” and emphasized that the majority‘s holding “does not, of course, deprive [s]tates or trial judges of the power . . . to prevent such argument[s]” altogether. Id., 76.8
Because Cassidy was decided under the federal constitution, Portuondo required us to overrule its holding, which we did in State v. Alexander, supra, 254 Conn. 296. We stated in Alexander that generic tailoring comments “on the defendant‘s presence at trial and his accompanying opportunity to fabricate or tailor his testimony” were permissible under the federal constitution. Id., 300. Although the defendant in Alexander raised a state constitutional claim through supplemental briefing, this court was “not persuaded by his argument.” Id., 296 n.9.
B
The defendant‘s constitutional claim rests on two foundational propositions, each of which must prove correct for his claim to succeed. First, the defendant contends that the prosecutor made a generic tailoring argument when he asked the jury to “[l]ook at the details of [the defendant‘s]
The defendant did not object to the prosecutor‘s tailoring comment at trial, and we consequently review the defendant‘s unpreserved constitutional claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), because the record is adequate for review and the defendant alleges a violation of a state constitutional right. See, e.g., State v. Harris, 330 Conn. 91, 114-15 n.16, 191 A.3d 119 (2018) (“[T]he record is adequate for our review of the defendant‘s state constitutional claim and it is of constitutional magnitude. We therefore consider it in accordance with the principles for appellate review of unpreserved constitutional claims articulated by this court in State v. Golding. . .“); see also State v. Peeler, 271 Conn. 338, 360, 857 A.2d 808 (2004) (“[t]he first two [prongs of Golding] involve a determination of whether the claim is reviewable” [internal quotation marks omitted]), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005).9
A close examination of the pertinent evidentiary record, as laid out in part I of this opinion, is necessary to understand the context in which the tailoring argument was made. One part of the relevant evidentiary record involved the conflicting testimony of the defendant and the investigating officer, Comeau, regarding the defendant‘s memory of the incident when interviewed the following day. In addition, there were significant conflicts between the trial testimonies of the defendant and A regarding the underlying events. Most basically, the defendant denied that any sexual activity had occurred other than consensual oral sex, and their testimonies conflicted with regard to certain details of the alleged encounter as well.
During his rebuttal closing argument, the prosecutor urged the jury critically to evaluate the defendant‘s credibility by reference to both A‘s testimony and Comeau‘s testimony. On appeal, the defendant focuses on only one part of a single sentence in the prosecutor‘s rebuttal argument, in
In light of this conclusion, we need not decide whether our state constitution provides broader protection against generic tailoring arguments than does the federal constitution.11 We emphasize that this holding addresses only the defendant‘s state constitutional claim and should not be taken to indicate our blanket approval of all tailoring arguments as a matter of proper trial practice, an issue that we take up at greater length in part II C of this opinion.
C
We next address the defendant‘s claims that, even if the prosecutor‘s tailoring argument did not violate the confrontation clause of the state constitution, this court should reverse his conviction on the basis of prosecutorial impropriety or under the plain error doctrine, or in the exercise of
“[I]n analyzing claims of prosecutorial [impropriety], we engage in a two step analytical process. The two steps are separate and distinct: (1) whether [an impro- priety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial.”12 (Internal quotation marks omitted.) State v. Ciullo, 314 Conn. 28, 34-35, 100 A.3d 779 (2014). “[P]rosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments. . . . While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury ha[s] no right to consider.” (Internal quotation marks omitted.) Id., 37-38. As we have explained, the prosecutor‘s tailoring argument in the present case was tied to evidence permitting an inference of tailoring, and we therefore reject the defendant‘s claim that it rose to the level of a prosecutorial impropriety.
We also disagree with the defendant‘s alternative claim that the tailoring argument was plain error.13 “An appellate court addressing a claim of plain error first must determine if the error is indeed plain in the sense that it is patent [or] readily [discernible] on the face of a factually adequate record, [and] also . . . obvious in the sense of not debatable. . . . This determination clearly requires a review of the plain error claim presented in light of the record. . . . [An appellant] cannot prevail . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. McClain, 324 Conn. 802, 812, 155 A.3d 209 (2017). Because tailoring arguments are permissible under the federal constitution; see Portuondo v. Agard, supra, 529 U.S. 65-73; State v. Alexander, supra, 254 Conn. 294-300; we hold that the prosecutor‘s comment did not constitute plain error that requires reversal of the defendant‘s judgment of conviction.
Finally, and for similar reasons, we decline the defendant‘s request that we invoke our supervisory authority to reverse his judgment of conviction and adopt a rule prohibiting generic tailoring arguments. “It is well settled that [a]ppellate courts possess an inherent supervisory authority over the administration of justice. . . . Under our supervisory authority, we have adopted rules intended to guide the lower courts in the administration of justice in all aspects of the criminal process.” (Citation omitted; internal quotation marks omitted.) State v. Elson, 311 Conn. 726, 764-65, 91 A.3d 862 (2014). “Generally,
Because we do not disapprove of specific tailoring arguments when they are warranted by the evidentiary record, we have no occasion at this time to exercise our supervisory authority to regulate generic tailoring arguments. We see no immediate need to establish a prospective rule. We also see no reason to invoke our supervisory authority to remedy an injustice relating to the prosecutor‘s targeted use of a specific tailoring argument in the present case; no such injustice occurred here, for the reasons previously discussed. Again, although the prosecutor‘s allegation of tailoring was not described with optimal clarity, his statement that the defendant‘s testimony “was entirely self-serving with the benefit of hearing all the testimony that came before,” was supported by his explicit reference to specific evidence that could lead to a reasonable inference of tailoring. For that reason, it was not improper.
We pause briefly to qualify our holding in this regard to prevent any future misunderstanding. Our approval of specific tailoring arguments should not be taken as a blanket approval of all tailoring arguments. To the contrary, a tailoring argument does not automatically become appropriate just because a defendant chooses to testify in his or her criminal trial, and prosecutors and trial courts must take care to ensure that any such argument is tied expressly and specifically to evidence that actually supports the inference of tailoring. It is true that the United States Supreme Court held in Portuondo that tailoring arguments do not violate the sixth amendment, but the court made equally clear, however, that state courts may prohibit or limit tailoring arguments by local decree as a matter of sound trial practice. See Portuondo v. Agard, supra, 529 U.S. 73 n.4; id., 76 (Stevens, J., concurring). Although the present case does not require us to decide at this time whether to adopt a formal rule prohibiting generic tailoring arguments as an exercise of our supervisory authority, such a rule may become necessary if future cases reveal that tailoring arguments are being made indiscriminately and without an appropriate evidentiary basis. Likewise, the fact that generic tailoring arguments do not burden federal constitutional rights does not mean that they pass constitutional muster under our state constitution. We express no view on these issues, but observe that a number of our sister states have determined that generic tailoring arguments are impermissible as a matter of sound trial practice or state law. See, e.g., Martinez v. People, 244 P.3d 135, 140-42 (Colo. 2010) (generic tailoring arguments are improper); State v. Mattson, 122 Haw. 312, 327-28, 226 P.3d 482 (2010) (generic tailoring arguments in closing argument are improper under state constitution); Commonwealth v. Gaudette, 441 Mass. 762, 767, 808 N.E.2d 798 (2004) (generic tailoring arguments in closing argument are impermissible); State v. Swanson, 707 N.W.2d 645, 657-58 (Minn. 2006) (“although not constitutionally required, the better rule is that the prosecution cannot use a defendant‘s exercise of his right of
III
The defendant‘s other principal claim on appeal relates to a different trial tactic allegedly used by the prosecutor to undermine the defendant‘s credibility. The defendant argues that the prosecutor violated his right to a fair trial under State v. Singh, supra, 259 Conn. 693, by conveying to the jury that, in order to find the defendant not guilty, it must find that Comeau had lied.14 The state denies that any Singh violation occurred and further responds that the defendant was not deprived of his right to a fair trial because the defendant himself “interjected the issue of whether the police testimony was credible” by “suggest[ing] that the police were lying or twisting what he told them . . . .” Additionally, the state claims that “the alleged improprieties, if they existed, were neither severe nor frequent, nor critical to the central issues of the case,” and that “the objected-to testimony and argument did not directly relate to evidence of the crime.” For purposes of our analysis, we assume, without deciding, that Singh was violated, but we nonetheless conclude that the defendant was not deprived of his right to a fair trial.15
As we noted previously, when a defendant raises a claim of prosecutorial impropriety, we first “must determine whether any impropriety in fact occurred; second, we must examine whether that impropriety, or the cumulative effect of multiple improprieties, deprived the defendant of his due process right to a fair trial. . . . To [do so], we must determine whether the sum total of [the prosecutor‘s] improprieties rendered the defendant‘s [trial] fundamentally unfair . . . . The question of whether the defendant has been prejudiced by prosecutorial [improprieties], 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. . . . Accordingly, it is not the prosecutorial improprieties themselves but, rather, the nature and extent of the prejudice resulting therefrom that determines whether a defendant is entitled to a new trial.” (Citation omitted; internal quotation marks omitted.) State v. Jones, 320 Conn. 22, 34-35, 128 A.3d 431 (2015). “[W]hen a defendant raises on appeal a claim that improper remarks by the prosecutor deprived [him] 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 light of the whole trial, the improprieties were so egregious that they amounted to a denial of due process.” (Internal quotation marks omitted.) Id., 37.
In order to address whether the defendant was deprived of his due process right to a fair trial, we consider the factors set forth in State v. Williams, 204 Conn. 523, 529 A.2d 653 (1987), which include, “[1] the extent to which the [impropriety] was invited by defense conduct or argument . . . [2] the severity of the [impropriety] . . . [3] the frequency of the [impropriety] . . . [4] the centrality of the [impropriety] to the critical issues in the case . . . [5] the strength of the curative measures adopted . . . and [6] the strength of the state‘s case.” (Citations omitted.) Id., 540. “As is evident upon review of these factors, it is not the prosecutor‘s conduct alone that guides our inquiry, but, rather, the fairness of the trial as a whole.” State v. Singh, supra, 259 Conn. 701. In addition, the fact that the defendant did not object to the remarks at trial is part of our consideration of “whether a new trial or proceeding is warranted . . . .” (Internal quotation marks omitted.) State v. Ciullo, supra, 314 Conn. 36. Applying the Williams factors to the present case, we conclude that the defendant was not deprived of his due process right to a fair trial.
We begin by assessing whether there were any instances of defense conduct or argument that invited the alleged improprieties. This factor weighs heavily against finding a due process violation in the present case. The prosecutor would have been hard-pressed to avoid confronting, directly and forcefully, the defendant‘s prominent claim that the police officers misrepresented what he had said to them the day following the incident. “[T]he defendant himself, by virtue of his defense, claimed that the witnesses against him were lying.” State v. Stevenson, 269 Conn. 563, 594, 849 A.2d 626 (2004). Thus, the prosecutor‘s “attempt[s] to characterize [the defendant‘s] defense in this manner was invited and, therefore, not harmful under our holding in Singh.” Id.
In the overall context of the trial, it is fair to say that the alleged improprieties were relatively “limited in frequency.” State v. Ritrovato, 280 Conn. 36, 67, 905 A.2d 1079 (2006); see id., 66-67 (holding that one question regarding victim‘s credibility answered by expert witness in cross-examination and brief reference to her testimony in closing argument meant that improprieties were not frequent). The comments also were not severe. “In determining whether prosecutorial impropriety is severe, we consider whether defense counsel objected to the improper remarks, requested curative instructions, or moved for a mistrial. . . . We also consider whether the impropriety was blatantly egregious or inexcusable.” (Citation omitted; internal quotations marks omitted.) State v. Ciullo, supra, 314 Conn. 59. We consider the lack of objection by the defendant to the allegedly improper comments as a strong indication that they did not carry substantial weight in the course of the trial as a whole and were not so egregious that they caused the defendant harm.
Because the defendant took no curative actions, and did not ask for any such measures from the trial court, he “bears much of the responsibility for the fact that [the improprieties went] uncured.” Id., 61.
Finally, we take stock of the strength of the state‘s case as a whole. The outcome at trial was not a foregone conclusion, to be sure, and we do not doubt that the jury‘s assessment of witness credibility was a significant factor in determining its verdict. But the jury also was presented with substantial physical and testimonial evidence corroborating A‘s story, including photographs of marks and bruising in the exact places that aligned with her version of events, video footage substantiating her claims, and the testimony of her coworkers. Even if “[t]he state‘s case may not have been ironclad . . . we have never stated that the state‘s evidence must have been overwhelming in order to support a conclusion that prosecutorial [impropriety] did not deprive the defendant of a fair trial.” (Internal quotation marks omitted.) State v. Stevenson, supra, 269 Conn. 596. We also derive confidence in the jury‘s ability to carefully weigh the evidence, free from prosecutorial overreach, in light of its finding of not guilty of the crime of strangulation in the second degree, which “clearly demonstrat[es] the [jury‘s] ability to filter out the allegedly improper statements and make independent assessments of credibility.” State v. Ciullo, supra, 314 Conn. 60.
In sum, our examination of the entire record convinces us that any alleged Singh violation did not “so [infect] the trial with unfairness as to make the conviction a denial of due process.” (Internal quotation marks omitted.) State v. Singh, supra, 259 Conn. 700. Rather, “the trial as a whole was fundamentally” fair; (internal quotation marks omitted) id.; and we firmly believe that “there is not a reasonable likelihood that the jury‘s verdict would have been different absent the improprie- ties.” State v. Albino, 312 Conn. 763, 792-93, 97 A.3d 478 (2014). As such, our analysis of the record pursuant to the Williams factors leads us to conclude that the defendant was not denied his due process right to a fair trial.
The judgment is affirmed.
In this opinion the other justices concurred.