State v. WeatherspoonState v. Weatherspoon
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 article first, § 8, of the Connecticut constitution was violated when the prosecutor made a generic tailoring argument during his closing argument to the jury, and that certain improper remarks by the prosecutor during cross-examination and closing argument violated his due process right to a fair trial. The defendant’s conviction arose out of his alleged attack of the victim, with whom he lived and was in a romantic relationship. The day after the incident, a police officer, C, questioned the defendant about the incident. At the defendant’s trial, C testified that the defendant told him that he had been drinking on the day in question and that he did not remember anything that had occurred. C further testified that he asked the defendant if he had consumed enough alcohol to black out, to which the defendant replied in the negative. The victim also testified at trial as to the circumstances surrounding the incident and her belief that the defendant had been drinking heavily before it occurred. The defendant’s testimony at the trial conflicted in certain respects with the testimony of C and the victim, both of whom had testified before him. Specifically, the defendant denied telling C that he did not remember what had happened on the day of the incident but, instead, maintained that he remembered what had occurred but had declined to give C a statement due to his apprehension that it would be misconstrued or manipulated by the police. Additionally, the defendant agreed with the prosecutor when the prosecutor asked the defendant, without any objection, if C was wrong when he testified that the defendant had told him that he could not remember the incident. During closing argument, the prosecutor referred to C’s testimony that the defendant had no memory of the incident and remarked that the defendant would have the jury believe that C lied about what the defendant had told C regarding his memory of the incident. The prosecutor further urged the jury to assess the credibility of the defendant against that of C and the victim, and argued that the defendant’s testimony ‘‘was entirely self-serving with the benefit of hearing all the testimony that came before.’’ Defense counsel did not object to any of the prosecutor’s remarks during closing argument. Held:
1. 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
2. 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.
3. 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.
Affirmed.
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
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 superior 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
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 that at no point did A communicate that she wanted it to stop. The defendant denied the occurrence of any other sexual activity with A that day, or any biting, and he attributed A’s injuries to her light skin color and the physical nature of her job. He also explained that A’s hair became tousled after the third video because he innocently ruffled her hair, as he had done on prior occasions. The defendant’s testimony also differed materially from the version of events as related to the jury by Comeau. On direct examination, the defendant testified that he never told the officers that he could not remember what had happened the prior day. He agreed that the officers asked him if he had consumed enough alcohol to black out, and that he had responded to that inquiry by saying ‘‘no.’’ The defendant then testified as follows:
‘‘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-a`-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,
‘‘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 of the events of the day before. That’s why he asked whether the defendant had a blackout or had had blackouts in the past. Why else would the subject of blackouts even come up? The defendant kind of flatly says no, no, I just didn’t want to . . . share any information because, you know, you know how tricky those cops can be. That’s why I’m here. You have to evaluate the credibility . . . of the defendant vis-a`-vis Officer Comeau.’’ At no point did defense counsel object to any of the prosecutor’s questions or comments at issue on appeal.
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
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
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
Four years later, the sixth amendment underpinning of Cassidy was removed when the United States Supreme Court held that generic tailoring arguments do not violate any federal constitutional rights.7 Portuondo v. Agard, supra, 529 U.S. 75–76. In Portuondo, the court distinguished between a prosecutor’s effort to discredit a defendant by commenting on his refusal to testify at trial, which is prohibited because the jury is not allowed to infer guilt on that basis under Griffin v. California, 380 U.S. 609, 614–15, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965), and a tailoring argument, which invites the jury to act on its ‘‘natural and irresistible’’ inclination to make the permissible inference of tailoring from a defendant’s presence throughout all of the prior trial testimony. Id., 65, 67–68. The court pointed out that generic tailoring arguments pertain to the defendant’s ‘‘credibility as a witness, and [are] therefore in accord with our [long-standing] rule that when a defendant takes the stand, his credibility may be impeached and his testimony assailed like that of any other witness.’’ (Emphasis in original; internal quotation marks omitted.) Id., 69.
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.
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] testimony, which I would submit to you was entirely self-serving with the benefit of hearing all the testimony that came before.’’ Second, the defendant claims that generic tailoring arguments, though permissible as a matter of federal constitutional law under Portuondo, nonetheless violate the confrontation right contained in
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),9 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).
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
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 which he stated: ‘‘Look at the details of [the defendant’s] testimony, which I would submit to you was entirely self-serving with the benefit of hearing all the testimony that came before.’’ (Emphasis added.) However, we must view that statement in context to determine the true nature of the prosecutor’s argument. The statement was immediately preceded by a reference to the conflicting versions of events offered by A and the defendant at trial, and immediately followed by the suggestion that the defendant’s version was fabricated because he actually had no memory of the events, as he had told Comeau the day following the assault. We conclude that the challenged tailoring comment was ‘‘specific’’ rather than ‘‘generic’’ because the suggestion of tailoring was tied to evidence that, if credited by the jury, could have supported such a claim.10 The prosecutor’s argument contained two different but related evidence-based assertions: first, the discrepancy between the defendant’s pretrial statement to Comeau and his in-court trial testimony supports the inference that his in-court testimony is false; and second, the defendant’s false testimony about his memory allowed him to conform his recitation of events to that of A’s trial testimony, thereby supporting a reasonable inference of tailoring. The tailoring theory could have been articulated more clearly, but it was made, and it amounted to a specific tailoring argument because it was tied to evidence that supported such an inference.
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 our supervisory authority. We do not find any of these arguments persuasive.
‘‘[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
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, cases in which we have invoked our supervisory authority for rule making have fallen into two categories. . . . In the first category are cases wherein we have utilized our supervisory power to articulate a procedural rule as a matter of policy, either as [a] holding or dictum, but without reversing [the underlying judgment] or portions thereof. . . . In the second cate
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 confrontation to impeach the credibility of his testimony, at least in the absence of evidence that the defendant has tailored his testimony to fit the state’s case’’); State v. Daniels, supra, 182 N.J. 98 (using supervisory authority to hold as impermissible generic tailoring arguments during closing argument); State v. Wallin, 166 Wn. App. 364, 376–77, 269 P.3d 1072 (2012) (generic tailoring suggestion on cross-examination impermissible).
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,
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
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. We also find some comfort in the instructions that the trial court gave to the jury, both before and after the presentation of evidence, on witness credibility and police officer testimony.16
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
The judgment is affirmed.
In this opinion the other justices concurred.