State v. Chase

154 Conn.App. 337

107 A.3d 460

STATE of Connecticut

v.Rodney CHASE.

Nos. 36124

36125.

Appellate Court of Connecticut.

Argued Sept. 17, 2014.

Decided Dec. 23, 2014.

Howard I. Gemeiner, New Haven, for the appellant in AC 36124 and the appellee in AC 36125 (defendant).

Timothy F. Costello, assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Catherine Brannelly Austin, senior assistant state's attorney, for the appellee in AC 36124 and the appellant in AC 36125 (state).

LAVINE, ALVORD and BISHOP, Js.

Opinion

BISHOP, J.

This appeal and cross appeal arise from the same underlying criminal action. Although they have not been consolidated, we write one opinion for purposes of judicial economy in which we assess the claims made in both appeals.

In AC 36124, the defendant, Rodney Chase, appeals from the judgment of conviction, rendered following a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a–70 (a)(2) and one count of risk of injury to a child in violation of General Statutes § 53–21(a)(2). The defendant claims that (1) his due process rights were violated as a result of improper remarks made by the prosecutor during closing argument, and (2) there was insufficient evidence to convict him of sexual assault in the first degree. We disagree and, accordingly, affirm the judgment of the trial court as to the defendant's convictions for sexual assault in the first degree and risk of injury to a child.

In AC 36125, the state appeals from the trial court's vacatur of the jury's guilty verdicts on two counts of sexual assault in the fourth degree in violation of General Statutes § 53a–73a (a)(1)(A). The state claims that the court abused its discretion by its order of vacatur on the basis of the state's assertion that the court's instructional errors were harmless. We agree and, accordingly, reverse the judgment of the trial court in regard to those two counts.

The matter was tried over the course of three days in June, 2013, during which the jury reasonably could have found the following facts. Between November, 2011, and March, 2012, the defendant was a houseguest in the home of M.R. and his wife, R.N. M.R. and R.N.'s daughter, Z, the victim, and their three year old son, M Jr., also lived in the home.¹ One evening after Christmas, 2011, the defendant was lying on a couch in the livingroom, clothed and covered with a sheet. Z and M Jr. were lying on a nearby loveseat watching television. The defendant asked the two children to join him on the larger couch. Z lay down alongside the defendant under the blanket, while M Jr. curled up at the foot of the couch. As Z lay next to the defendant, he began rubbing Z's buttocks and private parts over her clothing with his hand. He then pulled down Z's pajama pants and underwear, and inserted one of his fingers into Z's vagina. Z left the couch and fled to the bathroom.

The defendant moved out of Z's home in March, 2012. Approximately three weeks later, Z disclosed to her parents what had happened with the defendant, and Z's parents contacted the police. The defendant was arrested and charged, by way of an amended information, with sexual assault in the first degree in violation of § 53a–70 (a)(2), two counts of sexual assault in the fourth degree in violation of § 53a–73a (a)(1)(A), and risk of injury to a child in violation of § 53–21(a)(2). At the conclusion of the trial, the jury found the defendant guilty on all counts. Before the court imposed the defendant's sentence, it vacated the jury's verdicts on the two charges of sexual assault in the fourth degree, due to an error in the jury instructions related to those charges. As to the remaining convictions for sexual assault in the first degree and risk of injury to a child, the court sentenced the defendant to a total effective term of ten years incarceration and ten years special parole. This appeal and cross appeal followed.

IAC 36124

As noted, the defendant raises two claims on appeal with respect to his convictions for sexual assault in the first degree and risk of injury to a child. First, he claims that his due process rights were violated as a result of improper remarks made by the prosecutor during closing argument. Second, the defendant argues that there was insufficient evidence to convict him of sexual assault in the first degree. We consider each claim in turn.

AProsecutorial Impropriety

We first turn to the defendant's claim that his due process rights were violated as a result of improper remarks made by the prosecutor during closing argument. Specifically, he argues that the prosecutor inappropriately appealed to the emotions of the jurors and improperly vouched for Z's credibility as a witness.

We begin by setting forth the legal principles and standard of review that guide our analysis. The standard of review governing claims of prosecutorial impropriety is well established. “In analyzing claims of prosecutorial impropriety, we engage in a two step analytical process.... The two steps are separate and distinct.... We first examine whether prosecutorial impropriety occurred.... Second, if an impropriety exists, we then examine whether it deprived the defendant of his due process right to a fair trial.... In other words, an impropriety is an impropriety, regardless of its ultimate effect on the fairness of the trial. Whether that impropriety was harmful and thus caused or contributed to a due process violation involves a separate and distinct inquiry.” (Citations omitted.) State v. Fauci, 282 Conn. 23, 32, 917 A.2d 978 (2007). “An appellate court's determination of whether any improper conduct by the prosecutor violated the defendant's right to a fair trial is predicated on the factors established in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). Those factors include 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.” (Internal quotation marks omitted.) State v. Lynch, 123 Conn.App. 479, 503, 1 A.3d 1254 (2010). “[If] a defendant raises on appeal a claim that improper remarks by the prosecutor deprived the defendant of his constitutional right to a fair trial, the burden is on the defendant to show ... that the remarks were improper....” (Internal quotation marks omitted.) State v. Taft, 306 Conn. 749, 762, 51 A.3d 988 (2012).

Because the claimed prosecutorial improprieties 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 argument, 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.... Thus, as the state's advocate, a prosecutor may argue the state's case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom.” (Internal quotation marks omitted.) State v. Miller, 128 Conn.App. 528, 535, 16 A.3d 1272, cert. denied, 301 Conn. 924, 22 A.3d 1279 (2011).

“Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury's attention from the facts of the case. [The prosecutor] is not only an officer of the court, like every attorney, but is also a high public officer, representing the people of the [s]tate, who seek impartial justice for the guilty as much as for the innocent.... By reason of his office, he usually exercises great influence [on] jurors. His conduct and language in the trial of cases in which human life or liberty [is] at stake should be forceful, but fair, because he represents the public interest, which demands no victim and asks [for] no conviction through the aid of passion, prejudice, or resentment. If the accused [is] guilty, he should [nonetheless] be convicted only after a fair trial, conducted strictly according to the sound and well-established rules which the laws prescribe. [Although] 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 [on], 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.) State v. Maguire, 310 Conn. 535, 553–54, 78 A.3d 828 (2013).

Finally, although the defendant failed to object at trial to the remarks that form the basis of his appeal, our Supreme Court has explained that a “defendant's failure to object at trial to each of the occurrences that he now raises as instances of prosecutorial impropriety, though relevant to our inquiry, is not fatal to review of his claims.... This does not mean, however, that the absence of an objection at trial does not play a significant role in the determination of whether the challenged statements were, in fact, improper.... To the contrary, we continue to adhere to the well established maxim that defense counsel's failure to object to the prosecutor's argument when it was made suggests that defense counsel did not believe that it was [improper] in light of the record of the case at the time.” (Internal quotation marks omitted.) State v. Medrano, 308 Conn. 604, 612–13, 65 A.3d 503 (2013). With this maxim in mind, we proceed with our review of the defendant's claims.

The defendant first claims that the prosecutor made a number of improper comments during closing argument geared to appeal to the jurors'...